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March 26, 1999


The opinion of the court was delivered by: Seybert, District Judge.


Pending before the Court is Defendant First Fortis Life Insurance Company's (hereinafter "Defendant" or "Fortis") motion for summary judgment in this action brought under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., alleging that Defendant improperly denied Plaintiff long term disability benefits pursuant to the long term disability plan (hereinafter the "Plan").


Debra Barnable, (hereinafter "Plaintiff" or "Barnable"), graduated from the University of Maryland in 1985 with a degree in therapeutic recreation. As part of her education, Plaintiff completed courses in psychology, sociology, abnormal psychology and parks and recreation. On October 8, 1985, Barnable accepted a position with the Suffolk Child Development Center ("SCDC"), as a recreational therapist. (Barnable Aff. ¶ 2.)

In connection with her employment, Barnable received Long Term Disability ("LTD") Benefits through First Fortis Life Insurance Company's group policy. (Def.'s Rule 56.1 Statement (hereinafter "56.1") ¶ 4.) Under the Plan, during the first 36 months of an alleged disability, an eligible person is deemed disabled if he or she is "under the regular care of a Licensed Physician (other than him or herself) and is unable to perform the material duties of his or her occupation or employment." (Def.'s 56.1 ¶ 6.)

Plaintiff asserts that the Plan does not expressly indicate that Fortis has the final authority or discretion in interpreting and/or administering the Plan. Fortis, however, relies on three sentences within the Plan to illustrate that it does in fact have ultimate discretion. Fortis first points to one sentence within the Claims Provisions, which reads:

  If necessary to determine Our liability, as part of
  proof of loss We may require . . . the claimant to
  authorize release of medical data . . . If any
  information is not furnished or the release of data
  is not authorized, We reserve the right to withhold

(Def.'s Attachment to Reilly Affidavit, (hereinafter "Vol. I"), Ex. C.) Fortis also looks to a sentence in the General Definitions Section which defines "satisfactory evidence of insurability" as "evidence . . . on the person's health [which] must be acceptable to Us." (Def.'s Vol. I, Ex. C.) Lastly, Fortis highlights a sentence in the "Adjustment of Benefits" section which allows Fortis to adjust benefit amounts if "[W]e find that the amount of benefits or payments from other sources . . . [are] greater or less than what was actually considered." (Def.'s Vol. I, Ex. C.)

On April 27, 1989, Plaintiff injured her back when a SCDC client jumped on her. (Barnable Aff. ¶ 3.) As a result of the injury, Barnable began to receive treatment from a chiropractor, Bruce Silber, D.C. (hereinafter "Dr. Silber"). Plaintiff was diagnosed as suffering from lumbar intervertebral disc syndrome and sciatica. Dr. Silber opined that Barnable was totally disabled from her job and incapable of lifting, bending and excessive sitting. (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment (hereinafter "Pl.'s Mem.") at 3.) However, by December 1989, Dr. Silber also reported that Barnable's condition was improving, that she was able to perform part time work. (Def.'s Vol. I, Ex. E.)

In January 1990, Plaintiff filed a claim for LTD benefits under the Plan. (Def.'s 56.1 ¶ 13.) Plaintiff began receiving LTD benefits in July 1990, and continued to receive benefits for approximately three years. (Barnable Aff. ¶ 4.) In February 1993, Plaintiff was advised that Fortis was evaluating whether she would still be eligible for LTD benefits beyond 36 months under the Plan's second definition of disability. (Def.'s 56.1 ¶ 22.)

In connection with its review in August 1993, Fortis had Plaintiff examined by Zolly Silberman, M.D. (hereinafter "Dr. Silberman"). Dr. Silberman concluded that Plaintiff was not disabled and that "she may return to her regular occupation as prior to this accident." (Defendant's Attachments to 56.1 Statement (hereinafter "Vol. II"), Ex. M.) Additionally, by letter dated September 10, 1993, Fortis asked Dr. Silber, Plaintiff's chiropractor, if Plaintiff was "disabled for every and any gainful occupation," and whether he agreed with Dr. Silberman's conclusions that Plaintiff did not have any disability related to her injury of April 29, 1989, and that she is capable of returning to work without restriction. (Def.'s Vol. II, Ex. N.) Dr. Silber responded in the negative to both inquiries, in effect agreeing that Plaintiff was not disabled for every and any gainful occupation, while disagreeing with Dr. Silberman's conclusions that Plaintiff has no disability and could return to work without restriction. (Def.'s Vol. II, Ex. O.)

By letter dated January 12, 1994, Fortis advised Plaintiff that she was no longer eligible for LTD benefits because she was not disabled from "any and every gainful occupation." (Def.'s 56.1 ¶ 28.) Fortis stated that its conclusion was based upon Barnable's medical records, Dr. Silber's reports, Dr. Silberman's reports and the Rehabilitation Services report. (Pl.'s Ex. H.) Furthermore, Barnable was advised of the appeal procedure and to submit additional objective evidence of total disability if she wished to appeal Fortis' determination. (Pl.'s Exs. H & I.)

In March 1994, Plaintiff, through her attorneys, appealed Fortis' decision to deny her LTD benefits. (Def.'s Vol. I, Ex. Q.) However, Fortis declined to consider Plaintiff's appeal because "no new evidence of total disability [was] submitted for their review," and therefore, Plaintiff's claim remained denied. (Def.'s Vol. I, Ex. R.) Plaintiff commenced this lawsuit approximately two and one-half years later, on January 10, 1997.



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