United States District Court, M.D. Pennsylvania
June 23, 2004.
JOHN R. SOPP, Plaintiff
CNA INSURANCE COMPANY (CONTINENTAL CASUALTY COMPANY) and KRAFT FOODS, INC., Defendants.
The opinion of the court was delivered by: MALACHY MANNION, Magistrate Judge
MEMORANDUM AND ORDER
Before the court are the plaintiff's and defendants'
cross-motions for summary judgment filed pursuant to Fed.R.Civ.P.
56(c). (Doc. Nos. 19, 27).
I. PROCEDURAL HISTORY
On November 20, 2001, the defendant CNA Insurance Company
(Continental Casualty Company) (collectively referred to as
"CCC"), and Kraft Foods, Inc., ("Kraft"), filed a petition for
removal seeking to remove this matter from the Luzerne County
Court of Common Pleas. (Doc. No. 1). The plaintiff ("Sopp") had
filed a complaint in that court seeking reinstatement of Short
Term Disability benefits, and a determination as to his
entitlement to Long-Term Disability benefits under the CCC/Kraft
Disability Insurance Plan, an employee welfare benefit plan
regulated by the Employee Retirement Income Security Act of 1974,
("ERISA"), as amended, 29 U.S.C. § 1001-1461. (Doc. No. 1).
After being granted an extension of time to do so, the
plaintiff filed an amended complaint on March 4, 2002. (Doc. No.
7). The defendants filed an answer to the amended complaint on
May 5, 2002. The parties consented on July 3, 2002, to proceed
before the undersigned United States Magistrate Judge. (Doc. Nos.
11, 12). The defendants filed a motion for summary judgment, a
supporting brief with exhibits, and proposed findings of fact, on
August 18, 2003. (Doc. Nos. 19, 20, 21). After being granted an
extension of time to do so, the plaintiff filed a cross-motion
for summary judgment, proposed findings of fact, and a brief in
opposition to the defendants' motion for summary judgment, with
exhibits, on November 4, 2003. (Doc. Nos. 27, 28). The defendants
filed a reply to the plaintiff's cross-motion for summary
judgment on November 25, 2003, and a brief in opposition, on
December 8, 2003. (Doc. Nos. 34, 37). Because certain
clarifications of the record were necessary for resolution of
this matter, oral argument was held on May 6, 2004, to address
II. FACTUAL BACKGROUND
The documents submitted by the parties establish that Mr. Sopp
was involved in a motor vehicle accident on May 5, 1999, which
occurred while he was in the scope of his employment with
co-defendant Kraft Foods. He sustained a number of injuries as a
result of the motor vehicle accident, mostly to his left upper extremity, which are discussed in more
detail below. He applied for and received short term disability
benefits through August 31, 1999.
On September 2, 1999, following receipt of an Independent
Medical Examination report, CCC advised Mr. Sopp that he had been
released to return to his duties as of August 31, 1999. He was
advised that his short term disability benefits would be
discontinued as of that date. (Doc. No. 18, defendants' record in
support of the motion for summary judgment; CCC 322).*fn1
The plaintiff filed an appeal of the determination on November
11, 1999. (CCC 145). On July 6, 2000, CCC's Disability Specialist
Joanne Laurie wrote to the plaintiff's attorney and advised him
that a review had been completed of Mr. Sopp's disability claim,
and that it was determined that the medical records, on the
whole, did not support a claim for on-going disability benefits.
Specifically, Ms. Laurie discussed and described the plaintiff's
job duties, and concluded that there was nothing in the
plaintiff's medical records which would preclude him from
performing the regular duties of his job as a Customer Category
Manager. (CCC 138). The plaintiff made several subsequent attempts to again appeal the decision, usually
incorporating ongoing treatment records. The plaintiff
subsequently filed a complaint in the Luzerne County Court of
Common Pleas seeking a determination as to his rights under the
Kraft short term and long term disability plans. As noted above,
that matter was removed to this court. (Doc. No. 1).
III. ERISA STANDARD OF REVIEW
A denial of benefits challenged under Section 1132(a)(1)(B) of
ERISA is to be reviewed under a de novo standard unless the
benefit plan gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits or to construe
the terms of the plan. Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 115 (1989). If the plan vests such discretion in
the plan administrator, the decision is to be reviewed under the
more deferential arbitrary and capricious standard of review.
Id.; See also Luby v. Teamsters Health, Welfare and
Pension Trust Funds, 944 F.2d 1176, 1180 (3d Cir. 1991);
Heasley v. Belden & Blake Corp., 2 F.3d 1249, 1256 (3d Cir.
The arbitrary and capricious standard is essentially the same
as the "abuse of discretion" standard. Abnathya v. Hoffman-La
Roche, 2 F.3d 40, 45 (3d Cir. 1993). The scope of review is
narrow and the court is not free to substitute its own judgment
for that of the plan administrator in determining eligibility for
plan benefits. Id. at 45.
Kraft's Plan explicitly confers this discretion on the plan
administrator. The plan provides, in pertinent part:
. . . When making a benefit determination under the
policy, We have discretionary authority to
determine Your eligibility for benefits and to
interpret the terms and provisions of the
policy . . .
. . . The plan administrator has complete
discretionary authority to determine eligibility for
benefits and to construe uncertain plan terms . . .
. . . The Administrator and other Plan fiduciaries
have discretionary authority to interpret the terms
of the Plan and to determine eligibility for and
entitlement to benefits in accordance with the
Plan . . .
(Doc. No. 18, Kraft Choice Summary Plan Descriptions, pp. 7, 11,
20) (emphasis in original). Because this language clearly gives
the plan administrator discretion over the payment of benefits,
the arbitrary and capricious standard of Firestone is
applicable in this case.
Furthermore, under the arbitrary and capricious standard, the
district court is to "look to the record as a whole," which
"consists of evidence that was before the administrator when he
or she made the decision being reviewed." Mitchell v. Eastman
Kodak Co., 113 F.3d 433, 440 (3d Cir. 1997) (emphasis added).
The relevant administrative record has been defined as including
the evidence not only before the administrator at the time of the
original decision in the matter, but also any additional records
which may have been submitted and reviewed in the process of any
administrative appeal. Ernest v. Plan Administrator of the
Textron Insured Benefits Plan, 124 F. Supp.2d 884, 893 (M.D.Pa. 2000). Therefore, the relevant
administrative record in this matter is limited solely to the
period beginning May 5, 1999, the date of the motor vehicle
accident, and the date of CCC's final decision relating to the
termination of short term disability benefits as of August 31,
1999. Thus, any supplemental records, reports, or any other
documents produced by the parties during the course of this
litigation are not admissible as a matter of law, and cannot be
considered by this court.
One of the questions addressed at oral argument on May 6, 2004,
concerned the actual date of CCC's final decision. It was the
understanding of the court at the conclusion of the oral argument
that the parties would discuss this matter, perhaps come to a
stipulation regarding the date, and then so advise the court.
This did not happen. Therefore, based upon the records before the
court, the court has determined that July 6, 2000, is the date
that the decision became final. The record shows that the
plaintiff's attorney continued to submit medical records
thereafter to both CCC and Kraft, but those records did not
affect the final decision of July 6, 2000, to affirm the
termination of short term disability benefits as of August 30,
The parties have filed cross-motions for summary judgment
pursuant to Fed.R.Civ.P. 56(c). Summary judgment is
appropriate when supporting materials, such as affidavits and
other documentation, show there are no material issues of fact to be resolved, and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);
See Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d
Cir. 1990). The Supreme Court has ruled that Fed.R.Civ.P.
56(c) "mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex Corp v.
Catrett, 477 U.S. 317 (1986). The Court further stated that
"Rule 56(e) . . . requires the non-moving party to go beyond the
pleadings and by [his] own affidavits, or by depositions, answers
to interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for trial." Id. at
324; Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888
(1990); Pastore v. Bell Tel. Co. of Pennsylvania, 24 F.3d 508,
511 (3d Cir. 1994) (quoting Harter v. GAF Corp., 967 F.2d 846,
852 (3d Cir. 1992)). The party moving for summary judgment bears
the burden of showing the absence of a genuine issue as to any
material fact. Id. at 323; Young v. Quinlan, 960 F.2d 351,
357 (3d Cir. 1992). To determine whether the non-moving party has
met his or her burden, the Court must focus on both the
materiality and the genuineness of the factual issues raised by
the nonmovant. "[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)
(emphasis in original). A dispute is genuine if the evidence is
such that a reasonable jury could return a verdict for the
non-moving party. Id. at 250. A disputed fact is material when
it could affect the outcome of the suit under the governing
substantive law. Id. at 248. If the Court determines that "the
record taken as a whole could not lead a rational trier of fact
to find for the non-moving party, there is no `genuine issue for
trial'." Matsushita Elec. Industrial Co. v. Zenith Radio,
475 U.S. 574, 587 (1986) (quoting First Nat. Bank of Ariz. v. Cities
Service Co., 391 U.S. 253, 289 (1968)). All inferences, however,
"`should be drawn in the light most favorable to the non-moving
party, and where the nonmoving party's evidence contradicts the
movant's, then the non-movant's must be taken as true'."
Pastore, 24 F.3d at 512 (quoting Big Apple BMW, Inc. v. BMW of
N. America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert.
denied, 507 U.S. 912 (1993)). With these principles in mind, the
court will address the allegations in the complaint, as amended,
and review the materials and documentation submitted by both
parties in order to determine whether a triable issue of material
fact has been established by either party.
The plaintiff has alleged that CCC/Kraft's decision to
terminate his short term disability benefits, and to not approve
long term benefits, was an arbitrary and capricious decision
which was not supported by the medical record on the whole. He
maintains that he suffers from numerous medical conditions which
prevent him from performing the substantial and material duties of his regular occupation, and that he is also unable to
perform any work for wage or profit for which he is reasonably
fitted by education or experience, or may reasonably become
qualified through training, education, or experience. (Doc. Nos.
In its motion for summary judgment, CCC/Kraft maintains that
although the plaintiff did sustain a number of musculoligamentous
injuries as a result of the motor vehicle accident of May 5,
1999, the plaintiff had recovered sufficiently from those
injuries as of August 31, 1999, so as to be able to return to his
regular job duties as a Customer Category Manager. Additionally,
the defendants argue that the plaintiff's claim for long term
disability benefits has never become ripe for evaluation because
the plan requires, as a prerequisite, that the claimant had been
disabled for a period of twenty-six (26) weeks under the short
term disability plan, which the defendants allege plaintiff
cannot establish. In support of its motion for summary judgment
the defendants have offered a number of medical records covering
the period May 7, 1999, through April 20, 2000.*fn2
The plaintiff was examined by Susan T. Depoliti Yang, M.D., on
May 7, 1999, apparently upon telephone referral by the
plaintiff's family physician, Dr. Blum. Dr. Yang then assumed
care as his primary treating physician. She reported on May 7,
1999: . . . Mr. Sopp was involved in a motor vehicle
accident on 5/5/99. [H]e was the seat belted driver
of an automobile. He was driving in traffic and his
brakes did not function and he was unable to stop and
hit the car in front of him. The left side of Mr.
Sopp's car hit the right rear of the car in front of
him . . .
. . . Mr. Sopp said his head hit the visor and his
ribs hit the steering wheel . . .
. . . Since the accident he has been suffering with
headaches which have occurred more so on the left
side of his head, which extends from the frontal
region through the parietal temporal and down the
occipital area . . .
. . . He also suffers with neck pain which radiates
into the left shoulder, posterior arm, and ulnar
forearm to the second and third digits of his left
hand He states that initially the pain was sharp
pain, it then changed to an achy pain which was dull,
and now he is experiencing numbness and
weakness . . .
. . . He also suffers with mid back pain and left
lateral rib pain . . .
. . . He is seen today for emergent evaluation.
. . . Rheumatologic: Left shoulder pain.
. . . Musculoskeletal: Neck and mid back pain. Left
lateral rib pain.
. . . Neurological: Radiating pain down the left
upper extremities described in HPI. Blurriness in his
left eye since he started taking Vicodin.
Physical Examination: In General, a well developed,
well nourished male, sitting upright in the chair in
no acute distress.
. . . Neurological: Sensation was diminished to light
touch and pinprick across the left shoulder as well
as along the medial arm and forearm and across the
medial aspect of the hand and fingers. Deep tendon
reflexes were and symmetric for the biceps, triceps,
brachioradialis, right and left.
. . . Manual muscle testing revealed the following:
Shoulder abduction 5/5 5/5
Shoulder Flexion 5/5 5/5
Elbow Flexion 5/5 4/5
Elbow Extension 5/5 4/5
Wrist Flexion 5/5 4/5
Wrist Extension 5/5 4/5
Grip Strength 5/5 3/5
Musculosketal palpation revealed the following:
1. There were trigger points and taut spasms along
the left cervical paraspinal musculature.
2. There were trigger points and taut spasm along the
left trapezius and rhomboid muscles.
3. There was tenderness to palpation of the left
4. There was exquisite tenderness to palpation of the
left supraspinatus tendon.
5. There was no tenderness to palpation of the left
. . . Cervical/upper extremity maneuvers were as
1. Axial compression did not produce upper extremity
2. Apley scratch test was positive on the left.
3. Hawkin's impingement was positive on the left.
4. Supraspinatus testing was positive on the left.
. . . Cervical mobility, although full, produced mild
pain at end range of motion for flexion, extension,
bilateral side bending and bilateral rotation . . .
. . . Range of motion of the left upper extremity was
full both actively and passively elbow and wrist, but
produced mild pain at end range of motion of the left
elbow . . . . . . Range of motion of the left shoulder was
limited in all planes secondary to pain but most
limited in extension and internal rotation.
1. Musculoligamentous injury of the cervical spine,
left periscapular area.
2. Musculoligamentous injury of the thoracic spine.
3. Cervicular radiculitis.
4. Rule out cervical disc herniation.
5. Rule out thoracic disc herniation.
6. Left shoulder synovitis.
7. Left supraspinatus tendonitis.
8. Left bicipital groove tendonitis.
9. Rule out internal degrangement of the left
10. Left intercoastal strain, rule out left rib
Dr. Yang followed up with diagnostic testing. An X-ray of the
cervical spine dated May 13, 1999, was read as showing mild
degenerative changes of the lower cervical spine with no evidence
of a recent fracture or displacement. (CCC 380). An MRI of the
cervical spine also dated May 13, 1999, revealed mild
degeneration and bulging of the C5-6 disc, but no evidence of
disc herniation. The impression was, "[P]robably early
degenerative changes [affecting] C5-6 with a bulging disc noted
asymmetrically toward the right side. The remainder of the
cervical spine study is within normal limits." (CCC 377). An
X-ray of the thoracic spine also dated May 13, 1999, was read as
showing moderate degenerative changes of the mid and lower
thoracic spine. (CCC 381). An MRI of the thoracic spine also dated May 13, 1999, revealed mild degenerative changes in
the mid and lower thoracic spine, but no evidence of a herniated
disc or spinal stenosis. The impression was, "[M]ild degenerative
changes in the mid and lower thoracic spine as described. There
is no evidence of a spinal cord or a spinal canal abnormality."
An MRI of the left shoulder also dated May 13, 1999, revealed
the AC joint was enlarged and did distort the superior margin of
the rotator cuff. The suspraspinatus tendon was normal. There was
no evidence of a full thickness tear, no bursitis or tendonitis.
The impression was:
[M]ild shoulder impingement. Several linear areas of
increased signal are noted in the rotator cuff in the
subacromial region. These may be partial tears or
inflammatory changes secondary to the mild shoulder
impingement. There is no evidence of a full thickness
tear and there is no retraction of the rotator cuff
demonstrated. The glenoid labrum is intact. (CCC
Based partially upon the results of these tests, CCC Disability
Specialist Laurie determined that short term disability benefits
should begin, but that the claim should be further investigated.
(CCC 319). It was also noted that a workers' compensation claim
had been opened and approved by Kemper National Services, Kraft's
workers' compensation insurance carrier and administrator. (CCC
318). On occasion benefits were "pended," due to the plaintiff's
refusal to attend functional capacity evaluations or independent
medical examinations. (CCC 336).
The plaintiff next saw Dr. Yang on May 24, 1999. He was
complaining of headaches more on the left side than the right side of his
head. He was also complaining of neck pain radiating down into
the left shoulder, left posterior arm, and left ulnar forearm to
the second and third digits of his left hand The plaintiff
described the pain as an "achy/dull" pain with associated
numbness and weakness in the left upper extremity. He also
complained of mid back pain. (CCC 374). Dr. Yang's neurological
exam revealed "diminished sensation to light touch and pin prick
across the left shoulder as well as along the medial arm and
forearm into the 3rd through 5th digits of the left
hand" Dr. Yang's plan was to obtain EMG studies, institute
physical therapy and chiropractic treatment, and consider
possible cervical epidural blocks. She also stated that she
anticipated that the plaintiff would "remain off of work for
approximately four weeks" until his conservative therapy had been
completed. (CCC 376).
The EMG studies were completed on June 11, 1999, by Tuan
Nguyen, M.D. He concluded that the studies were normal. His
1. There is no electrophysiological evidence of
median, ulnar neuropathy.
2. There is no electrophysiological evidence of a
3. There is no electrophysiological evidence of a
polyneuropathy or plexopathy. Clinical correlation is
Dr. Yang referred the plaintiff to the University of
Pennsylvania, Department of Rehabilitation, where he was treated by Curtis W.
Slipman, M.D., and Rajeev Patel, M.D. Dr. Patel did the initial
evaluation of the plaintiff on July 12, 1999. He noted, among
other things, that the plaintiff was receiving chiropractic
treatments which provided limited relief of approximately twelve
(12) hours. His physical examination results indicated "Neck pain
with radiation into the scapula and into the left upper
extremity, possibly secondary to discogenic pain etiology with
scleromal*fn3 referral pattern; Rule out cervical facet
syndrome; Rule out less likely cervical radiculopathy." The plan
was that the plaintiff should undergo a left-sided C-7
therapeutic transforaminal epidural space installation, and if
after two injections there was no improvement, then a series of
diagnostic zygapophyseal joint injections should be done at
levels C1-2, C2-3, and C3-4. If these measures proved to be
unfruitful, the plan was that the plaintiff should be scheduled
for a discogram of C4-5 and C5-6, in an attempt to locate the
underlying pain generation, and to determine whether the
plaintiff would be a candidate for a possible fusion. (CCC 346).
The plaintiff had two injections into his facet joints and his
cervical spine, both of which were unsuccessful in offering him
any lasting relief. (CCC 209).
As indicated above, the plaintiff was approved on August 21,
1999, for workers' compensation benefits by Kemper, Kraft's workers'
compensation insurance carrier. (CCC 404). Kemper arranged for an
Independent Medical Examination which was performed by Robert T.
O'Leary, D.O., on August 30, 1999. Because CCC's termination of
the short term disability claim is based in large part upon Dr.
O'Leary's opinions, the report follows in some detail.
Dr. O'Leary stated, in pertinent part:
Range of motion: Range of motion of the examinee's
Cspine was decreased on left side bending and
rotation to perhaps ½ of normal of what he was able
to perform toward the right, which was normal. Any
extension caused the examinee to stop to avoid any
pain. Range of motion for the upper extremities found
him to complain of pain on internal rotation of his
left shoulder. Full external rotation. Full
abduction. There was no sign of any impingement in
his left shoulder.
Palpation: On palpation, the examinee complained of
tenderness along his cervical paravertebral
musculature into the thoracic spine to T9. He also
complained of tenderness in his shoulder girdle
region generally along his left chest lateral to his
sternum into the mid axillary line mainly. I was
unable to palpate any crepitus, any spasm, or trigger
Motor Strength: Motor strength was 5/5 right
shoulder, elbow, wrist, and grip. 4/5 left shoulder,
elbow, wrist, and grip with cogwheeling.
Reflexes: DTRs were 2/4 biceps, triceps,
brachioradialis, and symmetric.
Sensory: Sensation intact to light touch and sharp
sense in all dermatomes of the upper extremities,
though decreased in a non-dermatomal distribution in
the medial and lateral forearm into his hand about
his thenar eminence at the thumb and his hypothenar eminence and pinky on the left. He
additionally claimed of numbness along his left side
from the thoracic spine T7 through T9, around into
his chest to sharp sense asymmetric to the right.
Clinical Diagnostic Tests: Impingement sign on the
left shoulder was negative. Spurling's sign was
absent. His Hofmann's sign was absent bilaterally.
Yergason's sign was negative bilaterally. Tinel's and
Phalen's at the wrists and Tinel's at the elbows were
1. Myoligamentous sprain/strain, left shoulder and
2. Degenerative changes, cervical spine and left
3. Complaints of pain into the left rib intercoastal
region, T7 through T9.
. . . The examinee has had two injections into his
facet joints and the cervical spine, both of which
were unsuccessful in offering him any relief. Besides
being potentially therapeutic, these injections are
diagnostic. If he had a lot of increased inflammation
in these areas, they more than likely would have
decreased his complaints of pain. Since they did not,
I doubt that he has facet syndrome in the cervical
spine. The examinee has degenerative changes in his
neck and mid back as well as his left shoulder, which
predate his 05/05/99 motor vehicle accident . . .
. . . The examinee should not continue to take
Vicodin, a narcotic. This is no longer necessary or
appropriate. I believe the Celebrex is reasonable as
a non-steroidal anti-inflammatory medication. Giving
him the benefit of the doubt, I believe the examinee
has a soft tissue injury to his neck and left
shoulder. There is no direct evidence of a tear,
though there is some inflammation. There is no
evidence of tendinitis or bursitus. The examinee was
rather vague when I asked him if he had previous
MRIs, telling me he did not recall. This simply
seemed to be out of place during our conversation
today . . . . . . . In any case, the examinee has had many weeks
of physical therapy on top of chiropractic
manipulation, massage, and modalities. The examinee
no longer requires formal physical therapy or chronic
manipulation to his spine. I would recommend, if he
were my patient, that he continue an independent home
program with his range of motion and stretching
exercises that he is certain to have learned over the
past many weeks . . .
. . . I would not limit the examinee from his
pre-injury duty as I understand it. I would limit him
from lifting more than 35 pounds or repetitive use of
his left upper extremity above shoulder region.
Besides this, I would not limit him physically based
on his motor vehicle accident of 05/05/99. Based on
today's examination, the examinee has reached maximum
medical improvement meaning specifically it is
unlikely that anything done further to him or for him
by way of physical therapy, chiropractic treatment,
or injections are going to make any difference in his
recovery . . .
. . . It is my professional opinion, with a
reasonable degree of medical certainty, that he will
fully and completely recover based on today's
evaluation within the next 10 weeks . . .
(CCC 119-124). In conjunction with the report, Dr. O'Leary also
prepared a Functional Capacity Evaluation ("FCE") which stated:
. . . The FCE results indicate that Mr. Sopp is able
to function at the LIGHT-MEDIUM Physical Demand
Level for an 8 hour day . . .
. . . Mr. Sopp was asked to complete a total of 14
pain questionnaires. According to these results, Mr.
Sopp scored high on 50% of criteria tested indicating
evidence that symptom disability/exaggeration may
exist. He passed only 20/52 validity criteria during
the FCE, 38% of which suggest a very poor voluntary
submaximal effort, which is not necessarily related
to his pain, impairment, or disability. Based on
today's profile, other data must be considered to
help understand Mr. Sopp's true functional ability
and to assist with medical and vocational
planning . . .
(CCC 126) (emphasis in original). As indicated above, based partially on these findings, the
plaintiff was informed on September 9, 1999, that he had been
released to return to light to medium work as of August 31, 1999.
The plaintiff's attorney appealed the decision by
correspondence dated November 11, 1999. Ms. Laurie advised the
plaintiff's attorney on November 23, 1999, that the medical
evidence in the file showed that Mr. Sopp could return to work
with no lifting over 35 pounds, and limited reaching or working
above left shoulder level, and that his job was classified as in
the sedentary to light category. She stated that she would
forward the additional medical records which the plaintiff had
submitted to the Appeal Committee, and that the Appeal Committee
would issue a ruling within 60 days of receipt of the appeal.
(CCC 224). In fact, the plaintiff's appeal was reviewed several
times before it was finally denied on July 6, 2000. (CCC 8, 168,
The substance of the disagreement among the parties is the
nature and extent of the plaintiff's residual injuries; the
plaintiff's "time of injury" job description and its physical
requirements, and whether the plaintiff was capable of returning
to work, and performing those job requirements as of August 31,
A file note of Ms. Laurie dated May 20, 1999, indicated that
she interviewed the plaintiff on that date. The plaintiff told
Ms. Laurie that he had not really improved at all since the
accident. The note states in pertinent part:
Has not engaged attorney yet for this accident, yet
(sic). Watches TV most of the day. Wife helps him when he
needs it. No real difficulty going up steps. States
he was in accident in company car. Brake failure.
Job duties require computer input also calls on an
account 2½ [hour] drive away for 1 day p/week. Does
sales at the account sells Oscar Mayer and cheeses.
Most of days are spent in the office doing regular
desk work. (Except when he visits this account 1
The defendants also submitted Kraft's Customer Category Manager
official job description. The description of the ideal
candidate's characteristics for such a job included, "[E]xcellent
interpersonal, selling and negotiation skills; a command of
business analytics including computer literacy and finance;
understand the strategic and tactical aspects of merchandising
programs, and the ability to combine interpersonal skills and
analytic selling tools to influence customers." (CCC 158-159).
The description did not mention any physical requirements of the
job classification, but it did clearly establish the position as
one of management.
On or about June 4, 1999, a report was generated titled
"Physical Demands Analysis" which described the Customer Category
Manager. The signature line bears the name Angela Mons, the
plaintiff's supervisor, but it also contains the initials "JR" in
a circle indicating that it was "JR" who actually signed the
document. The only physical demands listed for the position were
finger dexterity, twisting of the head and back, and the ability
to operate a motor vehicle. (CCC 278-279). As noted, Ms. Laurie advised the plaintiff by letter dated July
6, 2000, that his appeal had been denied, and that the original
decision to terminate short term benefits as of August 31, 1999
would stand Because this letter explains in detail the records
relied upon by the defendants in affirming the original decision
to terminate short term disability benefits as of August 31,
1999, it follows in some detail:
We have completed the review of Mr. Sopp's Short Term
Disability claim. We have reviewed the additional
medical information submitted from 1/03/00 through
1/12/00 from Worker's Compensation. These report
indicate that Mr. Sopp had continued complaints of
pain in his neck and upper back. Physical therapy was
recommended. These reports were unsigned, but noted
at the top of the page to be from Kathleen Cohen,
Two procedure notes for nerve blocks from Dr. Curtis
Slipman, dated 9/27/99 and 9/28/99, were also
included in the review. A March 6, 2000 letter from
Richard Cohen D.C. noted continued treatment for pain
in the neck, head, mid back, left arm and shoulder.
These symptoms come and go with brief periods of
relief. It is noted that certain activities
exacerbate the symptoms. Dr. Yang's report of 10/5/99
indicates light tender points, a scant spasm along
the left cervical paraspinal musculature as well as
along the left trapezius supraspinatus and rhomboid
muscles. This notes an improvement since the last
visit. Dr. Yang further reports slight tenderness to
palpation of the left supraspinatus tendon, no
tenderness to palpation of the left bicipital groove.
There is decreased strength diffusely throughout all
major muscle groups of left upper extremity. He has
full forward flexion, extension, bilateral side
bending and bilateral rotation and produces only very
mild pain at end range of motion since his most
recent injection. Full left upper extremity range of
motion, produces mild pain at end range of motion,
secondary to left shoulder and intercostal
We have also reviewed the information submitted in
the deposition that outlines Mr. Sopp's description
of his job duties of a Customer Category Manager. Mr.
Sopp has advised that his job duties entailed climbing, stooping, kneeling,
crouching and handling items with both hands. He also
indicates that reaching above, below and across
shoulder level was required. The duties also include
twisting and turning and bending at the waist level.
Fumes, dust, dirt, noise, moving machinery,
chemicals, sharp tools, slick floors, and changes in
temperature were noted. He also indicated that he
drove every other week 2½ hours, each way for
warehouse checks. Driving included 2½-3½ hours, each
way, twice a week (sic). Twice a month he would
participate in building displays, moving material
from the back room to the coolers and lifting as much
as 72 lbs. These activities would take eight to ten
hours, a full day, twice a month. The job duties also
included planning meetings, dealing with price
quotes, filing contracts and clerical duties.
Job requirements of a Customer Category Manager have
been verified with Kraft Foods. Kraft Foods, Inc.
maintains that the duties of a Customer Category
Manager are 1) to sell Kraft and Oscar Meyer
products, 2) review and analyze category trends and
provide information to accounts, and 3) develop
fact-based customer presentations. In order to
perform these functions, Mr. Sopp would use a
computer, telephone and calculator. Kraft also
indicates that Mr. Sopp's job duties as a Customer
Category Manager did require long, constant driving
and the physical demands of job site set ups. Kraft
Foods, Inc. further maintains that the duties that
Mr. Sopp has described in his deposition are those of
a Merchandiser, not a Customer Category Manager.
We are unable to approve additional benefits under
the above Short Term Disability Plan and Mr. Sopp's
claim remains closed . . .
In response to the defendants' motion for summary judgment, and
in support of his own motion for summary judgment, the plaintiff
maintains that defendants' decision to terminate the plaintiff's
benefits was "arbitrarily and capriciously made by the Defendants
and was based solely upon a company policy of the Defendants to
deny all claims to save money and coerce favorable lump settlements to remove claimants from the books."
(Doc. No. 27, ¶ 13). The plaintiff also claims that the
defendants' classification of the Customer Category Manager's job
duties as sedentary to light is not supported by the evidence of
record, and is more appropriately classified as medium to heavy
Also in response to the defendants' motion for summary
judgment, and in support of his own motion for summary judgment,
the plaintiff offered medical reports and records from Drs.
Slipman and Patel, Richard Cohen, D.C., and the workers'
compensation testimony of Angela Mons, who was his supervisor at
Kraft. Ms. Mons testified to what her understanding of the
plaintiff's job duties entailed.
The plaintiff also submitted two reports which were also
generated in the course of the workers' compensation proceedings.
A report dated January 24, 2000, prepared by Carl R. Goodman,
M.D. which opined that the medical treatment provided by Dr. Yang
had been reasonable and necessary. Another report was prepared by
Paul F. LaMay, D.C., who opined that the chiropractic care
provided by Richard Cohen, D.C. was also reasonable and
necessary. (CCC 172).
The plaintiff also attempted to submit medical records and the
deposition testimony of Albert Janerich, M.D., his subsequent
treating physician, which was also taken in the course of the
workers' compensation proceedings. These documents from Dr.
Janerich were not considered as there is no indication that the defendants ever saw or utilized
them in it's decision to terminate the short term disability
The plaintiff argues that all of these records establish that
he sustained far more serious and permanent injuries than as
interpreted by the plan administrator, and also that the record
does not support the conclusion that his work as a Customer
Category Manager was sedentary to light in nature. Therefore, he
maintains that the decision to terminate benefits as of August
31, 1999, was arbitrary and capricious, and summary judgment
should be granted in his favor.
All of the medical records submitted by both parties have been
carefully reviewed, as well as the plaintiff's deposition
testimony, and that of Angela Mons. While it is certain that the
plaintiff did sustain injuries as a result of the motor vehicle
accident of May 5, 1999, the record on the whole cannot support a
finding that those injuries remained so debilitating as to
prevent the plaintiff from performing his time-of-injury job as a
Customer Category Manager as of August 31, 1999. There is no
indication from any doctor after August 31, 1999, that the
plaintiff was completely disabled. In fact, the impression of Dr.
Yang, who was the first physician to examine the plaintiff after
the accident, was that the plaintiff would probably be able to
return to work after a matter of four weeks. Furthermore, none of
the diagnostic tests revealed any objective evidence which could
explain the plaintiff's continued complaints. Finally, the plaintiff has put forth no evidence whatsoever to
support his allegation that the decision to terminate the
plaintiff's benefits was based solely upon a company policy to
deny all claims to save money and coerce favorable lump
settlements to remove claimants from the books.
As indicated above, the burden of proof remains with the
claimant to establish total disability. Mitchell, 113 F.3d at
439. This court is not free to substitute its own judgment for
that of the plan administrator in determining eligibility for
plan benefits, and may reverse the administrator's decision only
if it was arbitrary and capricious. Abnathya, 2 F.3d at 45. The
record on the whole establishes that the decision to terminate
short term disability benefits as of August 31, 1999, and to not
approve long term disability benefits, was not arbitrary and
capricious. . Thus, summary judgment in favor of the defendants
is warranted. Conversely, the plaintiff has failed to show there
is a genuine issue of material fact that requires resolution by
trial, nor that he is entitled to Summary Judgment as a matter of
For the foregoing reasons, IT IS ORDERED THAT:
(1) The defendants' motion for summary judgment (Doc.
No. 19) is GRANTED, and the matter is dismissed;
and (2) The plaintiff's counter-motion for summary
judgment (Doc. No. 27) is DENIED.
(3) The Trial scheduled for August 16, 2004 is
cancelled and the Clerk is to mark this case closed.