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McCloskey v. Electronic Filing Reliance Standard Life Insurance Co.

March 16, 2006

KEITH F. MCCLOSKEY, PLAINTIFF,
v.
ELECTRONIC FILING RELIANCE STANDARD LIFE INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: David Stewart Cercone United States District Judge

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff, Keith F. McCloskey ("McCloskey" or "Plaintiff"), filed an amended complaint seeking to recover long-term disability ("LTD") benefits allegedly due under a group long term disability policy (the "Policy") purchased by McCloskey's employer, Interform Solutions, Inc. ("Interform"), from Defendant, Reliance Standard Life Insurance Company ("Reliance"). Because the Policy was part of an employee benefit plan established by Interform, McCloskey's claims are governed by the Employee Retirement Security Act ("ERISA"). McCloskey has asserted a claim for benefits, the imposition of fines and penalties, attorney fees, costs and such other relief that the Court deem equitable and just pursuant to 29 U.S.C. § 1132 (a), (e), and (f) of ERISA. McCloskey also alleges that Reliance is in violation of 29 U.S.C. § 1133 and seeks a remand to the plan administrator for a full and fair review. The parties have filed cross motions for summary judgment, and the motions are now before the Court.

II. STATEMENT OF THE CASE

McCloskey was employed by Interform from April of 1981until December of 2000 when he ceased working claiming that he was disabled. (Administrative Record "AR" 126). During the times relevant for these motions, McCloskey was employed as a collator operator.

Id. As an employee of Interform, McCloskey was covered by the Policy which provided full time salaried employees with disability benefits if they were unable to work due to a disability for periods in excess of one hundred eighty (180) days. (AR, Exhibit A) McCloskey alleges that he ceased working due to medical conditions which he contends rendered him "disabled" under the Policy. (AR 126) Under the Policy, "Totally Disabled" and "Total Disability" mean, that as a result of an injury or sickness:

1. During the 180 day period and for the first twenty-four (24) months for which a Monthly Benefit is payable, an Insured cannot perform the substantial and material duties of his/her regular occupation; and

2. After benefits have been paid for 24 months, an Insured cannot perform the substantial and material duties of any occupation that is one that the Insured's education, training, or experience will reasonably allow.

(Exhibit A p. 2.1). Any employee claiming total disability under the Policy must send written proof to Reliance within ninety (90) days after the alleged disability occurs. (Exhibit A p. 6.0). Pursuant to the employee benefit plan, Reliance serves as the claims review fiduciary with respect to the Policy. Id. Reliance, therefore, has discretionary authority to interpret the Policy to determine employee eligibility for benefits.

McCloskey stopped working on December 15, 2000, claiming disability due to abdominal pain. (AR 126). After receiving short term disability benefits for a period of time, McCloskey submitted a claim for LTD benefits under the Policy on July 12, 2001. Id. In his application, McCloskey described the nature of his illness as abdominal pain and a protrusion in the stomach area which rendered him too weak to perform his duties. Id. Plaintiff's treating physician, Howard Edington, M.D., submitted the "Physcian's Statement" and identified the primary diagnosis as a metastatic neuroendocrine tumor. (AR 322). Dr. Edington noted that McCloskey had an incisional hernia repair with mesh placement in January of 2001, and also reported Plaintiff's complaints of pain surrounding the mesh. Id. Further, Dr. Edington reported that a CT scan of McCloskey's abdomen and pelvis, performed on April 4, 2001, showed "decreasing inflammation surrounding the mesh in the anterior abdominal wall consistent resolving post-op[erative] change." Id. Dr. Edington found "no evidence of fluid collect[ion] or infection." Id.

In addition to the medical findings, Dr. Edington reported on McCloskey's physical abilities. (AR 323). Dr. Edington reported that McCloskey could lift/carry on a medium work exertional level in an eight (8) hour work day. Id. At the time of his submission, June 27, 2001, Dr. Edington reported that Plaintiff had not yet reached maximum medical improvement, but full recovery was expected in three (3) to four (4) months. Id.

Interform, McCloskey's employer, was also required to provide information to Reliance as part of the claim process. In an "Occupational Analysis" form provided by Reliance, Interform confirmed that McCloskey last worked as a collator operator on December 15, 2000. (AR122). Moreover, Interform provided Reliance with the following requested physical requirements of Plaintiff in his capacity as collator operator: (1) continuously required to stand and walk; (2) occasionally required to sit and balance; (3) frequently required to stoop, kneel, crouch, reach overhead; (4) frequently required to pull, push and lift in excess of 150 pounds; and (5) never required to crawl or climb stairs or ladders. (AR 124). Interform also reported that a helper could be used to assist Plaintiff in performing his occupation, when available. (AR 125).

In reviewing McCloskey's claim, Reliance considered all the medical records that were provided. The records indicate that Plaintiff had no health problems until February of 1999. (AR 252). In February of 1999, McCloskey consulted with Michael Wong, M. D. regarding a neuroendocrine tumor of the pancreas. Id. A Whipple procedure, which generally involves the removal of the gallbladder, common bile duct, part of the duodenum, and the head of the pancreas, was performed on May 12, 1999. Id. Following the surgery, Dr. Wong reported that McCloskey achieved his full activities of daily living by June 24, 1999. (AR 255). Subsequently, however, McCloskey developed significant abdominal pain due to a perforated viscus. McCloskey then underwent surgery to repair a perforated jejunal ulcer on August 17, 1999. (AR 165).

In June of 2000, a CT scan of McCloskey's abdomen, chest and pelvis revealed an enlarging complex mass. (AR 295). Plaintiff was treated with antibiotics, and a biopsy was performed on June 16, 2000. (AR 297). The biopsy specimen was not optimal and did not provide a definitive diagnosis. Id. In his Progress Note Report dated August 28, 2000, Dr. Wong indicated that Plaintiff was doing well and continued to work full time. (AR 266). A CT scan performed on October 24, 2000, revealed no evidence of metastatic disease in the chest or pelvis. (AR 269). McCloskey continued to work full time, but indicated to Dr. Wong that, occasionally after lifting heavy objects at work, he felt a burning-like sensation across his incision. (AR 268).

In December of 2000, three days after he stopped working, McCloskey went to Dr. Wong to have a bulge in his mid-abdomen examined. (AR 304). McCloskey also indicated to Dr. Wong that he does significant heavy lifting at work, and that he was experiencing slight pain with the lifting. (AR 306). At that time, McCloskey was diagnosed with an incisional hernia and scheduled for surgery on January 2, 2001. (AR 307). McCloskey's incisional hernia was surgically repaired, requiring the insertion of a polypropylene mesh. (AR 309).

Though his postoperative recovery was complicated by a wound infection, McCloskey resumed many of his normal activities by March 14, 2001. Id. McCloskey complained, however, of pain at the site of the operation that occurred during bending. Id. CT scans of his chest, pelvis and abdomen during this period revealed no evidence of a tumor or metastatic disease. (AR 310). McCloskey continued, however, to report abdominal pain through May 14, 2001. (AR 207).

In his Progress Note Report dated July 16, 2001, Dr. Wong indicated that McCloskey suffered from severe abdominal pain with any kind of physical activity that required bending. (AR 310). Dr. Wong further reported that there was no evidence of a recurrence of his tumor.

Id. Dr. Wong then completed a physician's report for Reliance, dated September 4, 2001, in which he reported that: (1) there was no evidence of cancer; (2) it was anticipated McCloskey could return to work in three (3) to six (6) months; and (3) because of extensive abdominal hernia repair, job modification was required in that McCloskeywas unable to lift more than ten (10) pounds or take part in strenuous activity. (AR 289).

Despite the September 4, 2001, report from Dr. Wong, Reliance denied McCloskey's claim for LTD benefits by letter dated September 21, 2001. (AR 101). The decision was based on a review of medical records that were submitted by Joshua Rubin, M.D. and Dr. Wong from which Reliance concluded that McCloskey retained the physical capacity to perform the required light-duty work of a collator operator. (AR 102). McCloskey was advised of his right to appeal, and he did so on September 27, 2001. (AR 86). In his letter of appeal, McCloskey contended that the denial of LTD benefits was incorrect as Reliance had not reviewed the medical records of neither John Kane, M.D., nor Dr. Edington, both of whom were treating McCloskey at the time. Id.

In its review, Reliance requested additional information from Dr. Kane. (AR 245). Dr. Kane provided Reliance with an assessment which stated that McCloskey "has chronic abdominal pain secondary to a mesh repair of an incisional hernia on [January 1, 2001] (which became infected postoperatively)." Id. The assessment further suggested that McCloskey have the mesh removed before he returned to work, and that he be restricted in his occupational duties from any lifting and/or movement that produced an increase in pain. Id.

Dr. Edington noted in his Outpatient Chart Note dated October 15, 2001, that Plaintiff was unable to work because the prosthetic meshes "have been intermittently extruded and infected" causing chronic abdominal pain. (AR 185). McCloskey was also made aware of the risks involved with the removal of the mesh and reconstruction. Id. There was a possibility that the surgical incisions could ultimately result in a permanent opening through the abdominal wall into the intestine and the need for a colostomy that may not be reversible. Id.

Moreover, Dr. Edington warned Plaintiff that the removal of the mesh and reconstruction may not alleviate his pain and weakness, and may result in recurrent hernias. (AR 196). Despite these dire warnings, McCloskey wanted Dr. Edington to proceed with exploration of the abdominal wound, removal of the mesh and reconstruction of the abdominal wall. (AR 185). The surgery was scheduled for November 7, 2001. Id.

By letter dated November 8, 2001, Reliance reversed its denial of LTD benefits and reinstated benefits retroactively to June 14, 2001. (AR 82). Based upon an expected recovery period for the surgery of six weeks, Reliance indicated that the claim for LTD benefits would be paid until ...


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