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SANSEVERA v. E.I. DUPONT DE NEMOURS & CO.

August 4, 1994

RICHARD J. SANSEVERA, Plaintiff,
v.
E.I. DuPONT de NEMOURS & CO., INC., Defendant.



The opinion of the court was delivered by: MIRIAM GOLDMAN CEDARBAUM

 CEDARBAUM, J.

 Plaintiff Richard Sansevera, a former employee of DuPont Imaging Systems, a subsidiary of defendant E.I. DuPont de Nemours & Co., sues defendant pursuant to § 502 of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(B). Sansevera, who suffers from Chronic Fatigue Syndrome ("CFS"), seeks a declaratory judgment that he is eligible for benefits under DuPont's Total and Permanent Disability Income Plan, an award of benefits past due from August 2, 1990 to the present plus interest, and an order enjoining DuPont from improperly denying him benefits in the future. In addition, Sansevera seeks to recover attorney's fees and costs, pursuant to 29 U.S.C. § 1132(g)(1). DuPont's motion to strike Sansevera's request for punitive damages was granted by oral opinion in open court on February 26, 1993. (Tr. at 13.) DuPont and Sansevera now cross-move for summary judgment.

 For the reasons discussed below, DuPont's motion for summary judgment is denied, and Sansevera's motion for summary judgment is granted in part and denied in part.

 The Facts

 The following facts, except where noted, are undisputed. On October 13, 1988, Sansevera, at the age of forty-five, began working as a Director of Marketing and Sales for Crosfield Electronics. (Def. 3(g) Stmt. at 3, PP 8, 9.) In February of 1990, Sansevera became ill. He reported symptoms of "terrible fatigue, dizziness, nausea, swollen glands, a low grade fever, and the inability to get out of bed, walk around or generally function." (Pl. 3(g) Stmt. at 3, P 3.) He began receiving short-term disability benefits from Crosfield on February 2, 1990, and has since been diagnosed as suffering from CFS. (Id. P 3, 4.) While Sansevera was on disability leave, Crosfield was acquired by DuPont. On July 1, 1990, Sansevera became an employee of DuPont Imaging Systems, and began receiving benefits equivalent to his full salary under DuPont's short-term disability plan. (Def. 3(g) Stmt. at 3-4, PP 12, 15, 16.) On August 2, 1990, Sansevera's six-month short-term disability period expired, at which time he applied to receive benefits under DuPont's Total and Permanent Disability Income Plan (the "Plan"). He continued to receive his full salary until August 31, 1990, when he was officially terminated. (Pl. 3(g) Stmt. at 4, P 8.)

 According to the Plan, determinations regarding eligibility for benefits are made by the Board of Benefits and Pensions (the "Board"). (Pl. Ex. 11, P VIII(B).) The Plan provides that "an individual shall be considered 'totally and permanently disabled' if the [Board] finds that he is totally disabled by injuries or disease and presumably will be totally and permanently prevented from pursuing any gainful occupation . . . ." (Id. P 11(E).) In 1990, an initial review of applications for benefits under the Plan was conducted by the Case Determination Committee. (Hay Aff. P 7.) This Committee was replaced in January of 1991 by a two-person initial review committee, comprised of Dr. Alan J. Hay, then Assistant Corporate Medical Director for DuPont and medical adviser to the Case Determination Committee, and George Hollodick, then a manager in the Pensions, Compensation and Benefits area. (Hay Aff. P 7.) According to Herbert Watson, Benefits Consultant for DuPont, since Mr. Hollodick is not a doctor, his role was merely to "sign[] off" on Dr. Hay's determinations regarding medical eligibility. (Watson Dep. at 51-52.)

 In accordance with standard procedure, after Sansevera applied to receive benefits under the Plan, he was examined by a DuPont physician, Dr. Michele Deltieure. In a report dated August 29, 1990, Dr. Deltieure stated that Sansevera had been diagnosed with CFS, but that his physical condition was within normal limits and that his prognosis was "good." (Pl. Ex. 13, PP 4, 5.) Dr. Hay, as medical adviser to the Case Determination Committee, was responsible for reviewing the medical information submitted in support of Sansevera's claim and making recommendations to the Committee concerning his eligibility. (Hay Aff. P 3.) After reviewing Dr. Deltieure's report and another report which showed that a brain scan had revealed no abnormalities, Dr. Hay concluded: "Prognosis for life is good. Prognosis for change in behavior is uncertain. Prognosis for performing the activities of work is good." (Pl. Ex. 13.) In his affidavit, Dr. Hay states that this conclusion was also supported by literature on CFS which suggested that "patients seemed to improve over time," and the fact that no medical study has proven that CFS is a permanent condition. (Hay Aff. P 10.)

 In a letter dated September 18, 1990, before the Case Determination Committee had met to review his application, Sansevera was notified that "the initial determination was that you did not qualify for coverage under the DuPont Total and Permanent Disability Plan." (Pl. Ex. 17.) DuPont contends that this letter was sent by mistake, and that Sansevera's application was given full and fair consideration by the Committee. (Def. 3(g) Counter-Stmt. P 9.) The Committee reviewed Sansevera's application in October of 1990, and tabled its decision "pending the results of an independent third-party evaluation of his physical condition." (Pl. Ex. 18.) No such evaluation was ever undertaken. Instead, Dr. Hay recommended that Sansevera be evaluated by a psychiatrist to determine if he could qualify for benefits under the Plan on the basis of his depression. (Hay Aff. P 12.) Dr. Daniel W. Schwartz, a forensic psychiatrist, examined Sansevera, and in a letter dated December 8, 1990, concluded that he "is not suffering any impairment of his ability as marketing manager as a result of mental disease or defect." (Pl. Ex. 19.) Dr. Schwartz also noted that "the physical symptoms themselves of [CFS] are enough to render such impairment." (Id.)

 In support of his application, Sansevera submitted to the Committee an evaluation by Dr. Susan M. Levine, who had had extensive experience with CFS patients and, in 1990, was one of thirteen physicians appointed to serve on a committee organized by the Center for Disease Control to study CFS. (Levine Aff. PP 2, 3.) In a letter dated January 25, 1991, Dr. Levine reported that Sansevera's "symptoms, physical exam and laboratory studies, in addition to the lack of any evidence for any other concurrent illness point[] to a firm diagnosis of the Chronic Fatigue Syndrome." (Pl. Ex. 23 at 1-2.) She concluded that Sansevera "remains totally and permanently disabled." (Id. at 2.)

 Sansevera also submitted a report dated January 8, 1991, by Dr. R.J. Romano, who had been treating him since March of 1990. Dr. Romano diagnosed Sansevera as suffering from CFS, and reported that his "prognosis for recovery is guarded and I believe that he will suffer from this condition for a prolonged period of time which means multiple years, if not for the rest of his life." (Pl. Ex. 24 at 2.) In response to a questionnaire sent by DuPont, which asked, "Are [Sansevera's impairments] temporary, or are they expected to be permanent?," Dr. Romano wrote "permanent," as he did in response to the question, "If not presently capable of performing [work activities], for how long?" (Hay Aff. Ex. F.) On the back of the questionnaire, Dr. Romano added that his opinion of permanency was based on the "severity and duration" of Sansevera's condition. (Id.)

 After reviewing these additional reports, Dr. Hay and Mr. Hollodick concluded that there was insufficient medical evidence to support a finding that Sansevera was "totally and permanently disabled" within the meaning of the plan. (Hay Aff. P 18; Pl. Ex. 26.) Although Dr. Hay and Mr. Hollodick acknowledged that Drs. Levine and Romano had stated that Sansevera's condition would be permanent, they did not recommend that he be awarded benefits because neither doctor "presented any supporting information or test results to demonstrate measurable impairment of the immune system or any other organ system." (Pl. Ex. 26.) In a letter dated February 27, 1991, Sansevera was notified that his claim had been rejected because he was not considered to be "permanently incapacitated" by his CFS, and he was advised that he had the right to appeal the decision to the Board. (Pl. Ex. 27.)

 Sansevera exercised his right to appeal, and submitted additional medical opinions in support of his application. In a letter dated May 2, 1991, Dr. Perry A. Orens reported that "laboratory evaluation of the so-called Levy panel revealed significant abnormalities which are consistent with the diagnosis of [CFS]. Prognosis is extremely guarded. He is totally disabled by both the severe fatigue, but also the severe cognitive dysfunction which is so prevalent in this disorder. He cannot perform any work at all." (Hay Aff. Ex. I.) In a letter dated January 31, 1991, *fn1" Dr. Marianne Frieri, an allergist, stated that "my prognosis for recovery is unknown. . . . Expected to be permanent. . . . Incapable of performing marketing manager activities . . . ." (Id. Ex. H.) Dr. Levine submitted an additional report, dated April 12, 1991, in which she stated that treatment had thus far been unsuccessful and concluded that "because of his severe physical and mental incapacity I believe that Mr. Sansevera is completely and permanently disabled." (Id. Ex. I.)

 After reviewing the additional information and concluding that there was still no objective evidence on which to base a finding of permanent disability, Dr. Hay recommended to the Board that Sansevera's appeal be denied. (Hay Aff. P 20.) On June 14, 1991, the Board considered Sansevera's appeal and concluded that there was "no medical evidence [that] was presented to support a conclusion that Mr. Sansevera was 'totally and permanently' prevented from performing the activities of work at the time of his termination." (Pl. Ex. 31 at 3.)

 Before Sansevera was notified of the Board's determination, Dr. Hay received letters from two additional doctors. Dr. James N. Crovello, a psychiatrist, reported that Sansevera's "illness has exceeded twelve months in duration. He still remains unable to work. It is still because of his [CFS] and its associated depressive symptoms. It is my opinion that he will eventually recover. However, this may take anywhere from several more months to a few years." (Hay Aff. Ex. J.) In an affidavit, Dr. Crovello states that his opinion regarding Sansevera's eventual recovery was in reference to his depression, the only ailment for which he was treating Sansevera, and not in reference to his CFS. (Crovello Aff. PP 5, 6.) Dr. Daryl Di Dio, a clinical psychologist, performed a battery of tests on Sansevera and, in a report dated April of 1991, stated that his "deficits in attention and concentration have severely affected his performance, as his present performance is not consistent with his potential." (Hay Aff. Ex. J.) Dr. Di Dio concluded that Sansevera "is unable to function in a competitive employment situation." (Id.) After reviewing these additional reports, Dr. Hay concluded that there was no reason to reconvene the Board for reconsideration. (Hay Aff. P 23.) In a letter dated August 19, 1991, Sansevera was advised that the Board had denied his appeal, having found that "there is no objective medical information which indicates impairment of functional immunity, neurological dysfunction nor impairment of any major organ system." (Pl. Ex. 38.)

 On August 24, 1992, Sansevera filed this suit, challenging the Board's definition of a "total and permanent" disability, and the Board's refusal to accept CFS as a qualifying disability. Sansevera contends that the Board's decision to deny him benefits must be reviewed de novo, but that the decision should be overturned even under the more deferential arbitrary and capricious standard of review. DuPont argues that an arbitrary and capricious standard of review is required and that the Board's decision was reasonable in light of the terms of the Plan and the Board's treatment of other applicants diagnosed with CFS.

 Discussion

 Summary judgment is authorized when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In examining the record, the court "must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party." Gibson v. American Broadcasting Cos., Inc., 892 F.2d 1128, 1132 (2d Cir. 1989); see Celotex, 477 U.S. at 330 n.2. The judge's role in summary judgment is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 I. Standard of Review

 The Supreme Court, in Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 103 L. Ed. 2d 80, 109 S. Ct. 948 (1989), held that "a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator . . . discretionary authority to determine eligibility for benefits or to construe the terms of the plan[,]" in which case the deferential arbitrary and capricious standard is appropriate. 489 U.S. at 115.

 DuPont's Plan states that "an individual shall be considered 'totally and permanently disabled' if the Board of Benefits and Pensions finds that he is totally disabled by injuries or disease and presumably will be totally and permanently prevented from pursuing any gainful occupation . . . ." (Pl. Ex. 11, P 11(E)) (emphasis added). In addition, the Plan states that "satisfactory medical evidence must be provided on which the Board may base a finding that an individual is totally and permanently disabled." (Id. P VI(A)) (emphasis added). Finally, the Plan provides the following:

 VIII. ADMINISTRATION OF THE PLAN

 
A. The Executive Committee of the Company shall have the authority to control and manage the operation and ...

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