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September 7, 2005.

RANDY L. NYMAN, Plaintiff,

The opinion of the court was delivered by: JOHN E. JONES, District Judge

MEMORANDUM AND ORDER September 7, 2005


Pending before the Court is a Motion for Summary Judgment (doc. 21) filed by the defendant, Liberty Life Assurance Company of Boston ("Defendant" or "Liberty Life") on June 1, 2005. We also have before us a Motion for Partial Summary Judgment (doc. 24) filed by the plaintiff, Randy Nyman ("Plaintiff" or "Nyman") on June 1, 2005.

  For the reasons that follow, we will grant Defendant's Motion for Summary Judgment in its entirety and dismiss this case.


  On or about November 3, 2004 Plaintiff filed a complaint against "Liberty Mutual Assurance Company" in the Court of Common Pleas of Centre County, Pennsylvania. On December 8, 2004, Liberty Life filed a Notice of Removal in the United States District Court for the Middle District of Pennsylvania. (See Rec. Doc. 1). On February 23, 2005, Plaintiff filed an amended complaint correctly naming the defendant to be "Liberty Mutual Assurance Company of Boston." (See Rec. Doc. 11). Although the amended complaint does not refer to or cite the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. ยง 1001 et seq., it asserts a claim for long-term disability benefits ("LTD benefits") under the Coca-Cola LTD Policy. We will therefore construe Plaintiff's amended complaint as arising under the provisions of ERISA.

  On June 1, 2005, both parties filed Motions for Summary Judgment, which have been briefed by the parties. The instant Motions are therefore ripe for disposition.


  Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." FED .R. CIV. P. 56(c); see also Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). The party moving for summary judgment bears the burden of showing "there is no genuine issue for trial." Young v. Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences which a fact finder could draw from them. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).

  Initially, the moving party has a burden of demonstrating the absence of a genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the moving party pointing out to the court that there is an absence of evidence to support an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325.

  Federal Rule of Civil Procedure 56 provides that, where such a motion is made and properly supported, the non-moving party must then show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue for trial. FED. R. CIV. P. 56(e). The United States Supreme Court has commented that this requirement is tantamount to the non-moving party making a sufficient showing as to the essential elements of their case that a reasonable jury could find in its favor. Celotex Corp., 477 U.S. at 322-23.

  It is important to note that "the non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994) (citation omitted). However, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993) (citations omitted).

  Still, "the 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). "As to materiality, the substantive law will identify which facts are material." Id. at 248. A dispute is considered to be genuine only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.


  We initially note that we will, where necessary, view the facts and all inferences to be drawn therefrom, in the light most favorable to the nonmoving party in our analysis of the pending Motions.

  Liberty Life provides LTD insurance to employees of The Coca-Cola Company ("Coca-Cola") and affiliated entities pursuant to a Group Disability Income Policy ("Coca-Cola LTD Policy") which was effective January 1, 2003. Plaintiff was a participant in the Coca-Cola LTD Policy as a result of his employment with CCDA Waters Company, a Coca-Cola bottling plant in Milesburg, Pennsylvania. Plaintiff was employed as an industrial operator for the manufacturing department of the Coca-Cola bottling plant. Deductions were taken from Plaintiff's pay and his employer was responsible for paying the insurance premium for this disability insurance policy with Liberty Life.

  In July 2003, Plaintiff injured his lower back while building a chicken coop at his home. He consulted with his chiropractor without relief and was referred to his treating physician's assistant, John C. Wadsworth ("Mr. Wadsworth"). Mr. Wadsworth prescribed medication for muscle spasms and referred Plaintiff to physical therapy. Plaintiff attempted physical therapy without improvement and he experienced pain radiating down his legs with his legs becoming weak with prolonged standing. An August 4, 2003, an MRI of Plaintiff's lumbar spine revealed the following: disc desiccation of L3-L4, L4-L5, and L5-S1; a small broad based central disc protrusion of L5-S1, minimal annular bulge of L3-L4 and L4-L5, and a small annular fissure at the L3-L4 level. On October 9, 2003, Plaintiff followed up with neurosurgeon Gail Magid ("Dr. Magid") and was ruled out as a surgical candidate.

  In December 2003, Plaintiff sought to return to his work with CCDA Waters; however, Plaintiff's employer insisted upon an examination by Dr. Susan R. Friedman ("Dr. Friedman") before Plaintiff was allowed to return to work. On December 10, 2003, Dr. Friedman examined Plaintiff and recommended the following:
His mechanical back problems, which in my opinion are the primary cause of his low back pain, should resolve with appropriate physical therapy treatment. Should Mr. Nyman wish, I could give him suggestions about where to go, etc.
At present, I would not recommend that he return to his regular job. I think the chances are high that his pain would increase ...

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