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November 28, 2000


The opinion of the court was delivered by: Anita B. Brody, District Judge.


Before me is defendant's motion for summary judgment. For the reasons set forth below, defendant's motion will be denied without prejudice.

Plaintiff Mary Friess brought this action against the defendant, Reliance Standard Life Insurance Company ("Reliance") following Reliance's denial of her claim for long-term disability ("LTD") benefits. Because the insurance policy at issue is an employee benefit plan, this action is governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. Removal was proper as ERISA provides that a civil action may be brought in federal court by a plan participant "to recover benefits due to him under the terms of the plan. . . ." 29 U.S.C. § 1132(a)(1)(B). ERISA preempts all state claims that "relate to any employee benefit plan." 29 U.S.C. § 1144(a).

Factual Background*fn1

Woodward and Lothrop established and maintained a benefit plan offering LTD benefits to its employees. As an employee of Woodward and Lothrop,*fn2 Friess participated in the plan. Her coverage under the plan became effective in 1989.*fn3

Woodward and Lothrop's plan was insured under a group LTD policy ("the Policy") issued and administered by Reliance. The Policy states that Reliance will pay a monthly benefit if an insured:

(1) is Totally Disabled as the result of a Sickness or Injury covered by this Policy; (2) is under the regular care of a Physician; (3) has completed the Elimination Period; and (4) submits satisfactory proof of Total Disability to us.

Defendant's Motion for Summary Judgment, Exhibit B, p. 7.0. According to the Policy, an employee is "Totally Disabled" when "during the Eliminator Period and thereafter an Insured cannot perform the material duties of any occupation. . . . Any occupation is one that the Insured's education, training or experience will reasonably allow." Id. at 2.1. An insured who is "Partially Disabled" — capable of performing the material duties of any occupation on a part-time basis or some of the material duties on a full-time basis — will be considered Totally Disabled, the definition continues, except during the "Elimination Period." The "Elimination Period" is defined as a period of 90 consecutive days of Total Disability for which no benefit is payable, and begins on the first day of Total Disability. Id. at 1.0-2.0.

On January 19, 1996, Friess submitted a claim for LTD benefits under the Policy. Friess maintained that she had become totally disabled on May 25, 1994, when she fell from a platform at work and broke her left ankle. In her motion, plaintiff indicates that she had expected the injury to heal, allowing her to return to work. However, her doctors eventually determined that the ankle injury was permanent, as her severe pain and difficulty walking and standing did not subside. Following the determination that the injury was permanent, Friess filed her claim with Reliance in January of 1996.*fn4

After receiving Friess's claim in January of 1996, Reliance opened a file on Friess and began obtaining medical records from her treating physicians. At Reliance's request, Friess provided the necessary medical releases and authorizations, and also provided Reliance with contact information concerning the doctors she had seen after the ankle injury. Based on the information provided by Friess, Reliance undertook to contact those doctors to obtain necessary records and evaluations.

The compiled medical records document problems with Friess's left ankle and foot dating from November 28, 1994, when William Markmann, M.D. began treating Friess for those problems.*fn5 However, Friess maintains that her medical treatment began immediately following her fall on May 25, 1994. On the day of the fall, she was taken to the emergency room at Nazareth Hospital and treated for an ankle injury. On the next day, May 26, 1994, Friess saw Dr. Thomas Peff for treatment. Dr. Peff treated Friess over the next several months. During that time, Dr. Peff put a cast on the ankle and had Friess perform physical therapy.

In November of 1994, Dr. Markmann's practice assumed care for Friess. The record of his November 28, 1994 evaluation*fn6 indicates that Friess described her earlier treatment under Dr. Peff to Dr. Markmann. Friess also provided Dr. Markmann with x-rays she brought with her from Dr. Peff's office. Friess complained to Dr. Markmann of persistent pain in her left ankle and foot that made walking and standing difficult. Dr. Markmann ordered an MRI*fn7 scan of her ankle and foot and also an EMG*fn8 of her back and left leg. On December 20, 1994, Markmann prescribed Percodan in response to Friess's request for pain relief.

On December 28, 1994, I.M. Solanki, M.D. conducted the MRI.*fn9 The records of both Dr. Solanki and Dr. Markmann indicate that the MRI study was normal.

In January of 1995, Dr. John Beight, another doctor in the same practice group as Dr. Markmann, examined Friess.*fn10 His records indicate that Friess continued to complain of persistent pain in her foot. He agreed with Dr. Markmann that she should have an EMG. In notes dated January 20, 1995, Dr. Beight wrote that he believed Friess could work in a seated position. However, Friess's attempt to resume work in late January 1995 intensified her pain. On January 27, ...

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