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,
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.
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 administration of this Plan . . . .
B. The administration of this Plan is vested in the Board of Benefits and Pensions appointed by the Executive Committee. The Board may adopt such rules, or delegate to one or more persons its authority to make initial determination [sic], as it may deem necessary for the proper administration of the Plan. The decision of the Board in all matters involving the interpretation and application of this Plan shall be final.
(Id. P VIII(B)) (emphasis added).
DuPont argues that the emphasized language above demonstrates that the Plan gives the Board discretion to determine eligibility for benefits and final authority to interpret the terms of the Plan, as required by Firestone, and that the Board's decision may therefore be overturned only if it is found to be arbitrary and capricious. Sansevera argues that the Plan does not provide a clear grant of discretion to the Board to interpret the terms of the Plan, and that its decision to deny him benefits must therefore be reviewed de novo.
Sansevera relies on Guisti v. General Electric Co., 733 F. Supp. 141 (N.D.N.Y. 1990), in which Judge McCurn reviewed de novo a decision by a third-party insurance company, which administered an insurance plan on behalf of General Electric's employees, to deny the plaintiff benefits under its accidental death policy. The plan in Guisti stated that the plan administrator, as opposed to the employer, "will make all determinations with respect to benefits under this Plan," but did not expressly state that the administrator had discretion to interpret the terms of the plan or that eligibility determinations made by the administrator were to be given deference. 733 F. Supp. at 146. Sansevera argues that, like the provision in Guisti, paragraph VIII(B) merely states that the Board, as opposed to the Executive Committee, has the final authority within DuPont to interpret the terms of the Plan. Sansevera argues further that the Plan does not explicitly provide that any interpretation made by the Board would be binding on the court.
This reading of paragraph VIII(B), however, strains its plain language, which explicitly states that the Board has the final authority to interpret and apply the terms of the Plan. Other provisions in the Plan support this reading. As the language emphasized above makes clear, paragraph II(E) provides that a finding of a "total and permanent" disability is left to the discretion of the Board. In addition, paragraph VI(A) states that the Board "may" decide whether an applicant is totally and permanently disabled, based on the medical evidence presented. The language in these provisions sharply contrasts with the language in a benefit plan found by the Second Circuit to leave the administrator no room for discretion. See Heidgerd v. Olin Corp., 906 F.2d 903, 908-09 (2d Cir. 1990) (applying de novo standard of review in light of plan's language, which provided that "You will receive severance pay if you are dismissed. . ." and "Benefits are payable if you must resign because of ill health.") The language of the Plan therefore satisfies the Firestone test, and the Board's denial of benefits to Sansevera must be reviewed under the arbitrary and capricious standard.
Sansevera argues that, even if the terms of the Plan grant the Board discretion, de novo review is still required for two reasons. First, Sansevera argues that the terms of the Plan do not control because the Plan Summary, which according to Sansevera does not grant the Board discretion, did not notify the employees that the terms of the Plan govern. DuPont, however, has since produced two additional pages of the Plan Summary which had been "inadvertently redacted" in the document produced to Sansevera in discovery. (Koob Reply Aff. Ex. 54.) One of the two missing pages states that "this summary plan description is intended to provide you with a reasonably thorough explanation of the disability plans. Wherever possible, nontechnical language has been used to explain plan provisions. The official plan texts are the governing documents in the event questions arise." (Id.) Sansevera argues that in any event the Plan Summary itself should have informed employees of the discretion granted to the Board. However, it is not necessary for a plan summary to restate each term of a benefit plan because such a requirement would defeat the summary's purpose of providing a clear and concise description of the employees' rights and obligations under the plan. Cf. Pompano v. Michael Schiavone & Sons, Inc., 680 F.2d 911, 914 (2d Cir.), cert. denied, 459 U.S. 1039, 74 L. Ed. 2d 607, 103 S. Ct. 454 (1982) (plan summary need not enumerate factors to be considered by the administrator because "such a requirement would defeat the purpose of a summary, i.e., a brief restatement").
Second, Sansevera argues that he was never informed of the difference in coverage provided by Crosfield's disability plan, which covered "long-term" disabilities, and that of DuPont, which DuPont claims covers only "permanent" disabilities. According to the Supreme Court in Firestone, the terms of the Plan control the determination of the appropriate standard of review. 489 U.S. at 115. Whether Sansevera was notified of the change in benefits cannot affect this determination. DuPont states that, in any event, it was entitled to provide different coverage for its employees than was provided under Crosfield's plan, see Reichelt v. Emhart Corp., 921 F.2d 425, 430 (2d Cir. 1990), cert. denied, 501 U.S. 1231, 115 L. Ed. 2d 1022, 111 S. Ct. 2854 (1991), and that all employees were informed that there were differences in coverage. (Pl. Ex. 7.)
The Board's decision to deny Sansevera's application for benefits under the Plan will therefore be reviewed under the arbitrary and capricious standard.
II. Was the Board's Decision Arbitrary and Capricious?
The Supreme Court has stated that:
"Under the 'arbitrary and capricious' standard the scope of review is a narrow one. A reviewing court must 'consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. . . . Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. . . .'"