Records from Plaintiff's own chiropractor, Dr. Silber, indicate
that as of December 1, 1989, Debra Barnable was not totally
disabled from "any other job," and that patient was able to
return to part-time work as of December 15, 1989. (Def.'s Vol. I,
Ex. E.) Plaintiff's prognosis was apparently perceived by Dr.
Silber to be good, as he checked off "yes" to the question: "Do
you expect a fundamental or marked change in the future?"
However, he was unable to determine when the patient would
sufficiently recover to perform her duties. (Def.'s Vol. I, Ex.
E.) A subsequent examination on August 30, 1990, revealed that
the patient was ambulatory with moderate limitations,
specifically that sitting causes pain, and that her prognosis was
improved. (Def.'s Vol. I, Ex. E.) Plaintiff was seen by Dr.
Silber on approximately four other occasions with identical
results reported. (Def.'s Vol. I, Ex. E.) Thus, although the
records show that Plaintiff's physical impairment caused her
moderate limitations and that she was incapable of excessive
sitting, lifting or bending, she nevertheless was capable of
returning to part-time work by December 15, 1989, and her status
apparently improved with each visit to Dr. Silber. (Def.'s Vol.
I, Ex. E.) Dr. Silber expressly indicated Plaintiff's total
disability spanned from April 27, 1989, through December 14,
1989. As of December 15, 1989, Plaintiff was considered only
partially disabled and was capable of returning to part-time
work. (Def.'s Vol. I, Ex. E.) On November 25, 1992, Plaintiff's
last reported visit to Dr. Silber, he opined that a job
modification would enable plaintiff to work with her impairment.
(Def.'s Vol. I, Ex. E.)
In August 1993 Fortis had Debra Barnacle examined by a medical
doctor, Dr. Silberman, whose orthopedic examination did not
disclose any abnormalities related to her musculoskeletal system.
Range of motion was noted as full and free in all directions
without any limitations. Dr. Silberman examined an MRI film of
the lumbrosacral spine performed in April of 1990, and found the
film to be within normal limits. Additionally, Dr. Silberman
reported that Plaintiff had no disability in connection with her
injury of April 27, 1989, and that she could return to employment
as prior to the accident. (Def.'s Vol. II, Ex. M.)
Dr. Silber was contacted by Fortis and was asked specific
questions in a letter dated September 10, 1993. (Def.'s Vol. II,
Ex. N.) The first question, to which Dr. Silber responded "no",
was, "[i]n your opinion is Ms. Barnable presently disabled for
any and every gainful occupation as defined above?" The policy
definition of total disability was included in the letter.
(Def.'s Vol. II, Ex. N. & Ex. O.) Dr. Silber did not agree with
Dr. Silberman's conclusions that there is no objective evidence
substantiating Ms. Barnable's disability related to her
lumbosacral spine in connection with her injury of April 29,
1989, and further disagreed that plaintiff was able to return to
work without any limitation. Dr. Silber stated that a "return to
work in a full duty position . . . would probably worsen her
condition to a status of total disability." (Def.'s Vol. II, Ex.
Further, Rehabilitation Services, at Fortis' behest, performed
a vocational analysis report to ascertain whether, given
Plaintiff's medical history, vocational/educational history,
skills and aptitudes, there were any employment opportunities for
the plaintiff in her regional area. The Report concluded that
Plaintiff was employable in her area of Long Island, New York, at
a salary comparable to her earnings at the time of her injury.
(Pl.'s Ex. G.)
In determining Plaintiff's disability, Defendant Fortis
properly considered all the medical evidence presented by Ms.
Barnable and the reports of Dr. Silberman and Rehabilitation
Services. See, e.g., Abnathya v. Hoffmann-La Roche, Inc.,
2 F.3d 40, 47 (3d Cir. 1993) (reasonable for administrator to
decide to terminate benefits on basis of independent evaluations
by doctors chosen by plan, rather than the testimony of
claimant's physician); Lugo v.
Employees Retirement Fund of the Illumination Prods. Indus.,
529 F.2d 251, 256 (2d Cir. 1976) (affirming denial of benefits
based on examination by Fund doctors); Glavan, 1997 WL 381789,
at *3 (granting defendant summary judgment based on trustees
referral to medical doctors upon whose report trustees relied in
denying benefits); Vursanaj v. Building Serv. 32B-J Health and
Pension Fund, 1995 WL 590616, at *4 (S.D.N.Y. 1995) (granting
defendant summary judgment as Trustees were not required to make
findings regarding how plaintiff's physical condition would
impact on her ability to work and Trustees were entitled to rely
on medical evidence presented by doctors paid by the defendant).
Plaintiff has not presented any additional evidence for this
Court to consider. See DeFelice v. American Int'l Life Assurance
Co. of New York, 112 F.3d 61 (2d Cir. 1997).
Even after considering the evidence de novo, and not affording
the Defendant deference in determining Plaintiff's eligibility,
the Court concludes that there is no genuine issue of material
fact respecting Plaintiff's failure to present evidence
establishing her disability, as defined under the Plan. See
Mitchell v. CIT Group Holdings, No. 96 CV 6153, 1998 WL 760337,
at *4 (E.D.N.Y. Sept.1, 1998) (granting defendant's motion for
summary judgment because plaintiff's evidence of disability was
insufficient to create a genuine issue of material fact);
Bennett, 1998 WL 213199, at *3 (granting defendant summary
judgment after finding plaintiff failed to present evidence of
total disability, not just disability to continue present
occupation, even if viewed de novo).
Moreover, Barnable's own medical professional deemed her not
disabled as per the definition provided in the Plan. Accordingly,
Defendant's motion for summary judgment is hereby granted.
V. ATTORNEYS' FEES AND COSTS
Defendant also moves for an award of costs and expenses
incurred in bringing this motion and defending this suit,
including reasonable attorneys' fees. An award of attorneys' fees
in an ERISA case is governed by 29 U.S.C. § 1132(g)(1), and is
guided by five factors, including, "(1) the degree of offending
party's culpability or bad faith, (2) the ability of the
offending party to satisfy an award of attorney's fees, (3)
whether an award of fees would deter other persons from acting
similarly under like circumstances, (4) the relative merits of
the parties' position, and (5) whether the action conferred a
common benefit on a group of pension plan participant."
Chambless v. Masters, Mates & Pilots Pension Plan,
815 F.2d 869, 871 (2d Cir. 1987) (citing Ford v. New York Central
Teamsters Pension Fund, 506 F. Supp. 180, 183 (W.D.N.Y. 1980)).
Plaintiff's claim was not frivolous in nature, nor brought in bad
faith, and awarding fees would not serve a salutary purpose in
this instance. Accordingly, Defendant's motion for costs and fees
is hereby denied.
For all the aforementioned reasons, it is hereby Ordered that
Defendant's motion for summary judgment dismissing Plaintiff's
Debra Barnable's complaint with prejudice is granted in its
entirety. Defendant's motion for costs and attorneys' fees is
denied in its entirety. The Clerk of the Court is directed to
close the case.
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