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Moskalski v. Bayer Corp.

May 16, 2008

WILLIAM B. MOSKALSKI PLAINTIFF,
v.
BAYER CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Donetta W. Ambrose Chief District Judge

OPINION AND ORDER OF COURT SYNOPSIS

In this civil action, Plaintiff claims that Defendants denied him disability benefits in violation of the Employee Retirement income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. He claims that Defendants' conduct violated the terms of an ERISA disability plan (the "Plan"), pursuant to ERISA § 502(a)(1)(B), and that Defendants breached fiduciary duties to him under the Plan, pursuant to §§ 404(a)(1)(A), 409, and 502(a)(3).*fn1 Plaintiff initially complained of a November 10, 2005 decision by a Review Committee to uphold the termination of benefits. That matter was settled, at mediation, with an agreement that Plaintiff would be permitted to augment the administrative record, and that Defendants would review de novo Plaintiff's claims and all supporting documentation. Following that settlement, Defendants again denied Plaintiff's claim for disability. This case was then reopened by Court Order.

Now before the Court are the parties' cross-motions for summary judgment. Plaintiff moves for judgment on Count I of his Complaint; Defendants move for summary judgment on all claims against them. For the following reasons, Plaintiff's Motion will be granted, and Defendants' denied. This matter will be remanded for further proceedings consistent with this Opinion.

I. Factual Summary

The material facts are not in dispute. By way of background, I include several facts that are not material to my decision. The Plan is a plan within the meaning of ERISA, and includes the long term disability ("LTD") plan under which Plaintiff received disability benefits; Plaintiff was an employee of Bayer, and a participant in the Plan. The Plan Sponsor and Administrator of the Plan is Bayer Corporate and Business Services ("Bayer"); the Claims Administrator is Broadspire National Services ("Broadspire"), a successor of Kemper National Services ("Kemper"). LTD benefits are paid from a trust funded by employee payroll deductions, and periodic contributions from Bayer, and the Trust also earns investment income. The Plan gives the Plan Administrator discretion to make final determinations as to any facts necessary or appropriate for any purpose under the Plan, to interpret the terms and provisions of the Plan, and to determine any and all questions arising under the Plan. The initial decision to grant or deny a claim for benefits is made by Broadspire. Broadspire is not affiliated with Bayer; no part of its compensation is based on or affected by its decisions on benefits applications, and it is not financially responsible for any claim payments to participants. Reviews on appeal from a denial by Broadspire are done by Bayer's ERISA Review Committee, which has been delegated the discretionary authority of the Plan Administrator to interpret the Plan and make determinations of disability. Members of the ERISA Review Committee are Bayer employees, who receive no compensation for service on the Committee and have no financial incentives based on their decisions or Committee performance. After a participant has been awarded LTD benefits, the Plan gives the Plan Administrator the right to require satisfactory medical proof of continuing disability. A participant has the burden to prove, through periodically submitted medical evidence, that he is disabled.

Plaintiff went on disability on March 20, 1997, and began receiving LTD after his short-term benefits expired. Plaintiff's disability was severe obsessive compulsive disorder ("OCD"). The earliest attending physician statements in the administrative file were completed in July 2001 by Dr. Goldstein, Plaintiff's psychiatrist, and Dr. Taylor, Plaintiff's psychologist. Dr. Taylor reported that Plaintiff suffered from depression, as well as OCD, and reported that Plaintiff's OCD dated from age thirteen. Plaintiff was awarded Social Security Disability Income benefits on June 18, 1999, based on a finding of disability as of March 23, 1997, with a benefit start date of March 1998.

On April 11, 2005, at the request of Broadspire, Dr. Glassman, a psychiatrist, performed a peer review of Plaintiff's medical records as submitted to the administrator. He was asked to do the review because Plaintiff's condition was reportedly stable for over a year, with the last inpatient treatment having been reported in January, 2004. Dr. Glassman concluded that the documentation no longer provided examination data that would support a functional impairment from February 10, 2005, going forward. He also concluded that Plaintiff was "not disabled from any occupation." Dr. Glassman also advised that "an IME would be appropriate to gather more information at this time." Dr. Glassman had performed a peer review analysis on Plaintiff's file in September, 2001 at the request of Kemper, the prior claims administrator, and concluded at the time that the record supported a finding of disability.

On May 26, 2005, as a result of Dr. Glassman's review, Plaintiff was asked to submit to an IME. The IME was scheduled for June 10, 2005, and Plaintiff did not appear at the IME. Three months later, he advised that he had not opened his mail in time. In June, 2005, Broadspire notified Plaintiff of his obligation to provide information to support continuing disability, and of its conclusion that the medical data that had been submitted, i.e., progress notes of Dr. Goldstein from 2001 to January 20, 2005, did not reflect continued disability from any occupation. Plaintiff was informed that if he disagreed with this conclusion, he should submit any additional supporting medical documentation. He was given thirty days to submit the information after June 14, 2005, and told that his benefits could be terminated. No information was submitted on Plaintiff's behalf.

On July 18, 2005, Broadspire notified Plaintiff that his LTD benefits would be terminated effective August 1, 2005, because his medical documentation did not support continued disability. He was informed of his right to appeal the decision to the Plan Administrator. Plaintiff appealed the termination of benefits in an undated letter received by the ERISA Review Committee on September 12, 2005. In his letter of appeal, Plaintiff disputed several of Defendants' statements in the July 18 letter. Dr. Goldstein submitted a letter dated September 27, 2005, in which she stated that Plaintiff "needs continuing psychiatric care and he is unable to work." Her letter enclosed a handwritten history and office visit notes, almost all of which were already in the Administrative File. On October 3, 2005, Dr. Mendelssohn completed a Peer Review of the complete file, including Dr. Goldstein's letter, and concluded that the information submitted by Plaintiff and his psychiatrist did not support a functional impairment. On October 18, 2005, Dr. Goldstein submitted another letter to the Committee, stating that she had seen Plaintiff on October 17, 2005, and observed a "significant deterioration of his mental status." She attributed the deterioration to the cessation of disability payments. She also opined that "the improvement observed in [her notes following Plaintiff's hospitalization in 3-4/04] reflects mainly the change compared to his severely ill pre-hospitalization status. While he did make progress he never reached functionality that could allow him to return to work."

At the request of the ERISA Review Committee, an outside agency, Managed Care Network, selected a Board Certified Psychiatrist, Dr. Burstein, to perform a review of the complete medical file and provide the Committee with another opinion as to whether Plaintiff's medical records in the file demonsrtated that Plaintiff was unable to work. Dr. Burstein reviewed the claim history and the medical documentation in the file. By letter dated October 24, 2005, he concluded that Plaintiff "shows no signs of psychopathology that would interfere with his resuming his former duties as a Biochemist for Bayer Diagnostics or his assuming the duties and responsibilities of any job for which he could become qualified by education, training or experience." Dr. Burstein reported that Plaintiff was intelligent, with a variety of interests, and was able to negotiate purchases and drive successfully in a congested geographic area. Dr. Burstein also recounted certain of Plaintiff's activities of daily living and hobbies.

Moreover, Dr. Burstein took note of several items contained in Dr. Goldstein's office notes. For example, in January, 2005, Plaintiff appeared to be the best he had been in a long time; in October of 2004, he reported being "more accepting of things." In September, 2005, she noted "Narcissistic/grandiose issues. Wants to think about fundamental issues." On October 17, 2005, she noted "fighting to push himself to function at home" and later that month, noted "Discussion of OCD [symptoms] reveals still very deep and pervasive [symptoms]."

Subsequently, by letter dated November 10, 2005, the ERISA Review Committee informed the Plaintiff that his appeal was denied. It based its denial on the opinion and reasoning of Dr. Burstein, after having reviewed the several conflicting medical opinions in the file. Plaintiff then commenced suit on May 1, 2006. By agreement of the parties, the case was essentially remanded to the Plan Administrator to permit Plaintiff to submit additional medical documentation in support of his claim of disability as of August 1, 2005.*fn2

After the remand, Dr. Goldstein submitted a letter dated November 17, 2006, in which she stated that Plaintiff has "extensive contamination obsessions, aggressive obsessions, hoarding, need for symmetry, cleaning compulsions, ordering/arranging compulsions and pathological slowness. The symptoms are somewhat attenuated by his numerous avoidances and rituals but on the whole his functional capacity is very limited." This letter was accompanied by a set of office notes covering 2001 through October 2006. The notes up through 2005 were already part of the file that had been reviewed before. Dr. Goldstein's letter also observes that Plaintiff's condition is chronic, disabling, and has not responded to medication; she observes that the disease has a "natural history of waxing and waning."

In a February 5, 2006 letter, Dr. Burstein evaluated the additional records and information submitted after remand. He advised that the updated records did not alter the opinion expressed in his report dated October 24, 2005. He stated that Plaintiff "continues to give a clear accounting for his purported worries and claimed incapacities. In so doing he demonstrates executive function and working memory as well as clear communication."

On March 6, 2007, the ERISA Review Committee notified Plaintiff's counsel that the Plaintiff's submissions still did not establish disability entitling him to LTD benefits under the Plan, and of its reasons for that decision.

Bayer's LTD plan provides income and other benefits to employees who are disabled for more than 26 weeks. After six months on LTD, a participant must be "totally disabled," which is defined as "unable to work at any job for which you are or could become qualified by education, training ,or experience." The Plan further states that "[y]ou may not be considered totally or partially disabled under this plan when your medical condition allows you to earn a wage comparable to your earnings before you became disabled," and that a comparable wage would generally be considered 70% or higher of pre-disability earnings.

II. Standards of ...


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