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January 30, 1998



The opinion of the court was delivered by: FOSCHIO




 This matter was referred to the undersigned by the Hon. Richard J. Arcara on July 23, 1996 for report and recommendation on any dispositive motions. The matter is presently before the court on Defendant's motion for summary judgment, dated June 6, 1997.


 This action, alleging causes of action under the Employees' Retirement Income and Security Act (ERISA), 29 U.S.C. § 1132 et seq., was filed by Plaintiff on June 6, 1996. Specifically, Plaintiff, Barbara E. Martin, alleges that Defendant, E.I. DuPont de Nemours and Company ("DuPont"), wrongfully denied her benefits under its total and permanent disability plan. DuPont filed its answer on July 17, 1996.

 On June 6, 1997, DuPont filed a motion for summary judgment on the ground that it was entitled to judgment as a matter of law based on the medical records presented. DuPont also filed a supporting memorandum of law. On July 8, 1997, Martin filed a memorandum of law in opposition to DuPont's motion. *fn1" Thereafter, on July 21, 1997, DuPont filed a reply memorandum of law. Oral argument was not deemed necessary.

 For the reasons as set forth below, DuPont's motion for summary judgment should be GRANTED.


 According to her medical records, Martin developed pain in her left shoulder in October, 1988 when she lifted an armor mill at work which weighed between 85 and 90 pounds. (Document Response 2, Exhibit 5). Martin went to the Mount St. Mary's Hospital of Niagara Falls emergency room on October 23, 1988 complaining of chest pain, and believing that she might have a cardiac condition. She was admitted to the hospital at that time with a preliminary diagnosis of anterior chest syndrome, acute myositis, and exogenous *fn2" obesity. *fn3" A chest X-ray did not reveal any abnormalities of the heart (Document Response 1, Exhibit 21), and a gallbladder series also had negative results (Document Response 1, Exhibit 22). Martin was also given an echocardiogram which did not show any cardiac disease (Document Response 1, Exhibit 23). Acute pericarditis and angina were also ruled out. (Document Response 1, Exhibits 25, 27). Upon discharge, her treating physician, Dr. Thomas E. Comerford, diagnosed her with myositis (skeletal muscle injury) of the anterior chest, and prescribed Motrin 100 mg. for anti-inflammatory action and pain relief. (Document Response 1, Exhibit 23). Martin was placed on short-term disability at that time from her work at DuPont (Document Response 1, Exhibit 20). Dr. Comerford permitted her to return to work on December 19, 1988. (Document Response 1, Exhibit 20).

 Martin continued to complain of chest pain, and visited Dr. Comerford. The dosage of Motrin was increased to 400 mg. and she was placed on a restricted work schedule with no lifting. (Document Response 1, Exhibit 2). Martin saw Dr. James B. McDaniel Jr., her gynecologist, on July 29, 1989, for an unrelated problem, and on August 5, 1989, Dr. McDaniel issued a letter stating that Martin had recovered from that problem and could resume her usual occupation as of August 7, 1989. (Document Response 1, Exhibit 9).

 On September 20, 1989, Martin went to the emergency room at Niagara Falls Memorial Medical Center complaining of acute chest pain and was admitted to the hospital. (Document Response 1, Exhibit 2). The tests taken in the emergency room had normal results, with acute pericarditis ruled out, and an initial diagnosis made of anterior myositis of the anterior chest tissue and massive exogenous obesity. (Document Response 1, Exhibit 3). Martin was seen by a cardiologist at the hospital, Dr. M.A. Lacona, on September 21, 1989, who found no cardiac disease. (Document Response 1, Exhibit 5). On October 6, 1989, Dr. Comerford placed Martin on short-term disability, stating that Martin had a good prognosis, and that she should work a modified work schedule for at least four weeks. (Document Response 1, Exhibit 20). On October 24, 1989, Dr. Comerford recommended that Martin return to work, but that she be placed on permanent restrictions on lifting due to her acute and chronic anterior chest myositis. (Document Response 1, Exhibit 19). Martin returned to work, but did not work after November 8, 1989, complaining of chest pains. Martin thereafter returned to short-term disability status, with Dr. Comerford stating that she should not return to work until she was evaluated by Dr. James Conley at the Buffalo General Hospital. (Document Response 1, Exhibit 19).

 Martin was referred to the cardiac care unit at the Buffalo General Hospital, where she underwent an angiogram on November 28, 1989. The test proved negative, and Dr. James Conley, the attending physician, stated that "it was felt that her chest pains were not cardiac in nature." (Document Response 1, Exhibit 14).

 Martin was referred to the Cleveland Clinic Foundation in Cleveland, Ohio where she was seen on March 13, 1990. (Document Response 1, Exhibit 11; Document Response 2, Exhibit 1). Dr. John J. Brems and Dr. Stephen P. Hayden at the Cleveland Clinic diagnosed her with chronic impingement syndrome and chronic rotator cuff tendinitis, and recommended that she have a significant limitation of her overhead lifting at work of no more than five to ten pounds until the symptoms quieted down. (Document Response 2, Exhibits 1, 3). Martin was also recommended to physical therapy. Martin did not return to work following this assessment, and she was terminated from her employment on March 27, 1990.

 On April 10, 1990, Martin was seen by Dr. John C. Newman of Niagara Orthopaedic Associates based on the diagnosis from the Cleveland Clinic. (Document Response 2, Exhibit 4). Dr. Newman recommended an arthrogram of the left shoulder and a decompression of the shoulder to relieve the soreness ...

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