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SHEA v. ROAD

April 14, 1993

DANIEL J. SHEA and EVELYN SHEA, Plaintiffs,
v.
ROAD CARRIERS LOCAL 707 WELFARE FUND, Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 Daniel Shea is an employee covered by the Road Carriers Local 707 Welfare Fund (the "Fund"), a jointly administered employer - union benefit plan covered by ERISA, 29 USC §§ 1002 et seq. In July 1991 Shea's wife Evelyn suffered an injury from a falling object that struck her foot. Her doctor conducted an arthroscopic examination, billing a fee of $ 1385. The Fund paid $ 750, applying an annual maximum for reimbursement for many or most types of foot care under its ERISA plan document as submitted by the defendant Fund (the "plan"), which excludes coverage for:

 
5. foot care in connection with corns, calluses, flat feet, fallen arches, weak feet, chronic foot sprains, or symptomatic complaints of the feet in excess of $ 750, inclusive of surgery, during a plan year, effective January 1, 1987.

 Affidavit of Albert J. Alimena, on behalf of defendant ("Alimena Aff."), Dkt. No. 5, Exh. 2, p. 44.

 The medical examination indicated arthroscopic surgery was required. The plan paid a $ 95 fee for a second opinion which was required for some surgical procedures (not for arthroscopic foot surgery) and which was optional for others. The second opinion confirmed that the arthroscopic surgery was indicated. Surgery involving a bunion and hammertoe condition was performed in August 1991 at a total cost of $ 7,201. The Fund refused to pay any of this cost, based on paragraph 5 as quoted above. Shea brought an unsuccessful appeal pursuant to the machinery provided by the Fund.

 Shea thereafter sued in state court based on the Fund's disclosure document, Exh. 2, p. 21, which provides: "If you have a claim for benefits which is denied or ignored, in whole or in part, you may file suit in a state or federal court."

 The Fund removed the state court suit to this court pursuant to 28 USC § 1441 and moved for summary judgment under Fed.R.Civ.P. 56 on the ground that paragraph 5 of the plan document quoted barred Shea's claim. *fn2"

  II

 The Fund's position is set forth in the Alimena affidavit p. 2, P 5 as follows: "'Symptomatic complaints of the feet' includes all complaints of the feet that have ascertainable symptoms."

 No description of actual practice or common understanding, no written decision or analysis, and indeed no documentary support of any kind for this assertion is provided. No foot problems without ascertainable symptoms are mentioned or even suggested in the Alimena affidavit or elsewhere in the Fund's papers. No instances are described in which any claims characterized as nonsymptomatic have been accepted.

 The Fund's position treats most of the language in paragraph 5 as meaningless. *fn3" If the Fund's interpretation were accepted, the paragraph would be ...


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