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January 2, 1997


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 This is an action to recover damages by reason of defendant's allegedly wrongful termination of disability benefits to plaintiff, who was covered under a policy of insurance issued for the benefit of employees of Raytheon Engineers and Constructors, Inc. ("Raytheon"). Defendant counterclaims to recover $ 10,155 pursuant to an agreement with plaintiff under which plaintiff is obliged to reimburse defendant for duplicate disability benefits received from other sources. Defendant moves for summary judgment dismissing the complaint and on its counterclaim.


 LINA subsequently received from Raytheon a copy of a report, dated January 20, 1995, of a medical examination conducted by Dr. Edward Torriello on behalf of Raytheon's workers' compensation carrier. (Horbatiuk Aff. P 10 & Ex. J) Dr. Torriello reported that Mr. Maida exhibited a limited range of motion in his shoulders until distracted, at which time his range of motion was full and pain free. He concluded that "Mr. Maida's examination is filled with inconsistencies" and that "he reveals no objective evidence of continued disability from the orthopedic injuries sustained in the accident. He is presently able to perform the duties of his occupation."

 Dr. Torriello's report and other records thereupon were reviewed for LINA by Dr. T.A. Franz. He commented that the examination (conducted by Dr. Torriello) and the neurologic assessment (conducted by one of Mr. Maida's physicians *fn1" ) "are poor in their delineation of findings (the IME) or in their believability - neuro consult" and recommended a functional capacity examination to better document Mr. Maida's condition. He observed also that "this sort of injury should limit Mr. Maida to light or sedentary duties at most" and that his job was "in this range." (Id Ex. K)

 LINA thereupon sent Mr. Maida to a physical therapist, Larry J. Kopelman, who conducted a functional capacity examination on May 2 and 3, 1995. Mr. Kopelman's report concluded that Mr. Maida "shows a greater ability to work than he demonstrates" and that he performed inconsistently from test to test or from day to day. He found also that Mr. Maida was able to maintain various "work" positions for prolonged periods. (Id. Ex. L)

 On June 1, 1995, LINA advised Mr. Maida that it had concluded, based upon the findings of Dr. Torriello and Mr. Kopelman, that he was not totally disabled within the meaning of the policy. (Id. Ex. N) Mr. Maida appealed and submitted copies of notes from examinations by his treating physicians on March 27 and May 15, 1995 as well as a copy of a letter from the Social Security Administration finding that he was totally disabled. LINA rejected the appeal on July 25, 1995, noting that the information submitted stated that Mr. Maida suffered from back pain but did not support his claim of inability to perform the duties of his job. (Id. Ex. 0)

 Mr. Maida then retained counsel who forwarded various medical records to LINA in support of the disability claim. On October 4, 1995, LINA again rejected the claim, pointing out that he records submitted already had been considered by it. It did, however, invite counsel to submit more current records documenting the claimed condition if he did not agree with its conclusion. (Id Ex. P)

 At that point, Mr. Maida changed course. He submitted no further evidence of physical inability to perform his duties. Rather, counsel submitted letters from a psychiatrist, dated October 30, 1995 and December 21, 1995, which opined in identical language that Mr. Maida was suffering from post-traumatic stress disorder. The letters differed only in that the later version contained the statement that "Mr. Maida is totally disabled and unable to perform any type of work." (Id. Ex. Q)

 Mr. Maida responded by commencing this action in New York Supreme Court, New York County, on or about April 8, 1996. LINA removed the action to this Court and counterclaimed for $ 10,155, which represents the amount of benefits Mr. Maida received for which he also received Social Security disability payments. *fn2"


 Plaintiff's Claim

 Scope of Review

 Although plaintiff commenced this action in state court and asserted only state claims, it is undisputed that the group insurance policy at issue falls within the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. ("ERISA"), and that the case is governed entirely by that statute, which broadly preempts state law in this field. See Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 95 L. Ed. 2d 39, 107 S. Ct. 1549 (1987); Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 62-63, 95 L. Ed. 2d 55, 107 S. Ct. 1542 (1987); 29 U.S.C. §§ 1003(a) (ERISA applies to any employee benefit plan established or maintained by employers ...

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