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United States District Court, Southern District of New York

May 21, 2003


The opinion of the court was delivered by: Harold Baer, Jr., United States District Judge


Plaintiff Andrea Tholke ("Tholke") brought this action under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., to challenge the denial of long term disability (LTD) benefits under her employer's benefit plan. In an April 16, 2002 opinion, this Court found defendants' rejection of plaintiff's application for LTD benefits to be "arbitrary and capricious," and remanded the case to the Unisys Employee Benefits Administrative Committee ("Committee") to conduct a full and fair review of plaintiff's application. After remand, the Committee again rejected plaintiff's claim for LTD benefits. Defendants renew their motion to have the complaint in this case dismissed. Tholke seeks to have this matter scheduled for trial because the defendants' review of Tholke's claim allegedly remains arbitrary and capricious, and that there remain genuine issues of material fact in dispute. For the following reasons, defendants' motion for summary judgment is GRANTED.


The Court assumes familiarity with the discussion of the background facts as set forth in Tholke v. Unisys Corp., 2002 WL 575650 (S.D.N.Y. April 16, 2002), thus I will present here only cursory background facts and set forth new facts that have arisen since the Court's remand that are relevant to decide whether defendants' motion for summary judgment should be granted. In the first Committee meeting to address Tholke's claim, the Committee appeared to do nothing more than rubber-stamp a 6-page memorandum prepared by Mary Massman, a nonvoting participant and Secretary of the Committee. The memorandum recommended denying Tholke LTD benefits. The Committee endorsed the memorandum without comment and without reviewing the underlying documents on which the memorandum was based. In view of the Committee's failure to resolve the discrepancies between the doctors' diagnoses, as well discrepancies in Tholke's alleged work responsibilities, the Committee's failure to give consideration to the evidence in the record, and failure to explore Massman's reasons for her conclusion, the Court held that the Committee's meeting was "arbitrary and capricious." Tholke, 2002 WL 575650, at * 4.

On remand, this Court ordered the Committee to give plaintiff's claim full and fair consideration, including (1) the discrepancy between the diagnoses of the doctors (Drs. Cohen, Prisco, and Pitman) who examined Tholke and (2) the discrepancy between the statements by Tholke and her supervisors as to the nature of her job. Id. To resolve the discrepancies between the doctors' opinions, defendants enlisted the aid of Network Medical Review ("NMR"), an independent medical review firm to advise the Committee. Def. Exh. 1 (June 28, 2002 letter). NMR retained the services of Dr. Richard Silver, a board certified orthopedic surgeon as a consultant. The Committee also invited Tholke to submit any additional documents or information that she wished the Committee to consider. Prior to its meeting, the Committee was provided a host of documents to consider upon review of Tholke's claim, including: a letter from Tholke's counsel that explains why Tholke should be given LTD benefits, Def. Exh. 1 (Tab A), material from Tholke to support the description of her job responsibilities, id. (Tab B), material from the defendants in support of their position on Tholke's job responsibilities, id. (Tab C), copies of opinions from the doctors that examined Tholke, id. (Tab D), the insurance company's findings and Tholke's appeal of the insurer s findings, id. (Tab E), the social security disability determination, id. (Tab F), this Court's' opinion, id. (Tab G), and relevant portions of defendant's LTD plan, id. (Tab H).

Dr. Silver reviewed Tholke's medical records, documents that described Tholke's job requirements, including an affidavit from Tholke, and a description of the issues that the Committee sought to resolve. Def. Exh. 2 (June 20, 2002 letter). Although Tholke complained of having continuing pain from injuries caused by the accident, Dr. Silver found no objective evidence to substantiate her claim that she is unable to resume her responsibilities at work. Def. Exh. 4. In particular, he noted that the MRI images, taken only 16 days after the accident, showed no evidence of swelling, effusion, derangement, or chondromalacia of the patellofemoral joint. Id. at 2; see also Def. Exh. 2, Tab A (Wortman MRI reports). In a August 25, 1994 letter, Dr. Cohen, who plaintiff had been seeing regularly for treatment of her alleged injuries, reported that in his initial physical examination of plaintiff, he found normal patellar tracking, "no knee effusion," and no instability in the knee. Id. (Cohen 8/25/94 Report). The independent medical examinations by two other doctors, one performed on September 28, 1993 by Dr. Prisco, and the other performed on May 2, 1994 by Dr. Pitman, confirmed that she enjoys a full range of motion in her purportedly injured knee, and that there appeared to be no signs of meniscal tears, ligamentous instability, or reflex or sensory deficits in the knee. Def. Exh. 4 at 3; Def. Exh. 2, Tab A (Prisco Report, Pitman Report). Both Drs. Prisco and Pitman reported that she claimed to have tenderness in her knee area when examined, Def. Exh. 2, Tab A (Prisco Report, Pitman Report), though Dr. Prisco noted that it was difficult to judge the severity of her tenderness because "she reacted sharply to the slightest pressure anywhere in her body." Id. (Prisco Report) (emphasis added).

As for plaintiff's back, Dr. Prisco found that "[h]er neck and lower back moved normally and did not have any evidence of paraspinal muscle spasm." Id. (Prisco Report). Dr. Pitman, after conducting his own examination, concurred, finding that plaintiff had "full motion of the cervical spine" and "[n]o point of tenderness." Id. (Pitman Report). Dr. Pitman found plaintiff could bend to within 6 inches of the floor, but only with the aid of a crutch because of her cerebral palsy. Id. Although Dr. Wortman, who took the MRI images shortly after her accident, found a small protrusion from the C6-7 disc in plaintiff's veterbrae, he determined that the protrusion did not impinge on the spinal cord or nerve roots and concluded that there was no evidence of disc herniation or other abnormalities in Tholke's neck and back. Def. Exh. 2, Tab A (Wortman Reports).

Based upon the on-going pain reported by plaintiff, Dr. Cohen stated that he has been treating her for injuries to her cervical spine area, lumbar spine area, and left knee. Id. (Cohen 8/25/94 Report). With respect to plaintiff's knee, Dr. Cohen concluded, notwithstanding his initial examination that found normal patellar tracking and no knee effusion or instability in the knee, that she suffers from an internal derangement of the knee and patellofemoral joint chondromalacia. Id. From this diagnosis, he concluded that she "remains disabled, unable to perform her normal activities, cannot bend, lift or carry as she has significant recurrent episodes of pain and discomfort on her left knee joint." Id. In addition, Dr. Cohen stated that the injuries to the knee, cervical and lumbar spine were all causally related, id., presumably as a result of the December 1992 accident.

Upon review of these documents and records, Dr. Silver prepared a report dated July 3, 2002, which he faxed to the Committee. Def. Exh. 4. All of the members of the Committee convened on July 8, 2002, during which Dr. Silver participated by telephone. At the meeting, the Committee reviewed plaintiff's appeal and discussed with Dr. Silver the discrepancies in the various doctors' records in regard to plaintiffs condition. July 8, 2002 Minutes at 3. As indicated in his report. Dr. Silver stated that he found no objective evidence supplied by Dr. Cohen, such as documentation on Tholke's range of motion in her knee, no notes on evidence of knee effusion, no grading of conditions on the severity of her injury, and no test results to support his diagnosis. Id. Similarly, Dr. Silver found no objective evidence to support Tholke's claims regarding her alleged spinal problems. Id. In addition, Dr. Silver opined that even if Tholke had a disabling knee condition, it was of a sufficiently minor nature that she would have been able to resume the same responsibilities that she had before the accident, regardless of whether the responsibilities were those alleged by her or her supervisor.*fn1 Id. Furthermore, although Tholke continued wearing a hinged knee brace through 1994, Dr. Silver noted that the brace does not help with the patella problem that Dr. Cohen alleged she had. Id. Although Tholke received a Social Security award, the Committee acknowledged that Social Security applies a different standard than that used by the LTD plan, and that it received no documentation from Tholke to discern the basis of the Social Security disability determination. Based on the information provided by Dr. Silver, the Committee upheld the denial of plaintiff's claim for LTD benefits.

Subsequently, the Committee discovered that Dr. Silver's estimation of plaintiff's physical capacity had been inadvertently left out of the materials sent to the Committee. Concerned by the fact that the physical capabilities evaluation ("PCE") form seemed to indicate that plaintiffs ability to work was limited, the Committee re-convened on July 12, 2002 and held another telephone conference with Dr. Silver to resolve the possible inconsistency between his conclusion in the report and July 8, 2002 telephone conference with the PCE. Dr. Silver stated that the limitations noted in the PCE pertained to the period before plaintiff should have achieved "maximum medical improvement" and that she should have healed by no later than six months after the accident, which would have been in July 1993. To give plaintiff the benefit of the doubt, Dr. Silver gave plaintiff a January 1, 1994 date for maximum medical improvement. See Def. Exh. 5 at 7. Dr. Silver emphasized that he would place no restrictions on her ability to resume her former responsibilities at work after that date. July 12, 2002 Minutes at 1. Based on the consultation with Dr. Silver and record presented, the Committee upheld its earlier decision from July 8, 2002.


Where a benefit plan's administrator or fiduciary has discretionary authority to determine eligibility, such as the Committee had here, a court reviews the denial of benefits under an "arbitrary and capricious" standard. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Miller v. United Welfare Fund, 72 F.3d 1066, 1070-71 (2d Cir. 1995). Under this standard, the court will overturn a denial of benefits only if the plan administrator's decision is "without reason, unsupported by substantial evidence or erroneous as a matter of law." Miller, 72 F.3d at 1070 (quoting Pagan v. NYNEX Pension Plan, 52 F.3d 438, 442 (2d Cir. 1995)). "Substantial evidence" means evidence that a reasonable mind might accept as adequate to support the conclusion reached by the administrator. Miller, 72 F.3d at 1072. "[I]t requires more than a scintilla, but less than a preponderance." Turay v. Aetna U.S. Healthcare, 160 F. Supp.2d 557, 562 (S.D.N.Y. 2001).

A court may grant a motion for summary judgment if it determines that there is no genuine issue of material fact to be tried. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52 (1986). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The court must "draw all factual inferences in favor of the party whom summary judgment is sought." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995). If the moving party meets its burden, the opposing party must then produce admissible evidence that is sufficient to raise a material question to defeat the motion for summary judgment. Turay, 160 F. Supp.2d at 559-60.


Tholke disputes the appropriateness of the Committee's denial of her application for LTD benefits. First, Tholke alleges the Committee failed to reconcile the differences in opinion between Drs. Cohen, Prisco, and Pitman. The Committee, in Tholke's view, merely hired another medical consultant to render a fourth opinion. Tholke ignores completely, however, the report by Dr. Silver that reviewed Tholke's medical records and the opinions of all three doctors. Def. Exh. 4. Dr. Silver reconciled their opinions by noting that although Tholke may have reported experiencing pain in her knee and back, which Dr. Cohen took to be a more serious problem than it was, there was no objective evidence presented by any of the doctors to substantiate her claim of a lingering injury that would prevent her from resuming work. Id. at 3. Perhaps most importantly, in my view, Dr. Silver found no test results to substantiate Dr. Cohen's conclusion that she suffered a derangement of the knee or patellofemoral joint chondromalacia. July 8, 2002 Minutes at 3.

Although Dr. Pitman enumerated certain limitations as to her work responsibilities, including not lifting more than occasionally weight greater than 20 pounds, he noted that Tholke's disability arose "primarily on the basis of her cerebral palsy," Def. Exh. 2, Tab A (Pitman Report) (emphasis added), and that she required "no active treatment" of either her knee or back. Id. In view of her knee and back condition, he found nothing from which to conclude that she would not be "able to return to work." Because of Tholke's weakness on the right side of her body caused by the cerebral palsy and multiple surgical procedures to her foot, which required her to use a crutch, Def. Exh. 4. at 1, Dr. Silver similarly concluded that she should avoid carrying more than 10 to 15 pounds and advised her to avoid climbing ladders. In view of the medical records available in regard to her knee and back, however, he found no objective reason why she could not return to work, and resume the responsibilities that she does not dispute being able to perform satisfactorily before the accident.

Second, Tholke alleges that the Committee failed to reconcile the differences in the descriptions given by her and her supervisor of her essential job responsibilities. Tholke ignores the ramification of Dr. Silver's conclusion and the Committee discussion during the July 8, 2002 meeting. The Committee discussed the conflicting statements submitted by Tholke and her supervisor, and concluded that the truth probably lay somewhere in the middle of their descriptions of her work functions, July 8, 2002 Minutes at 2, and that it was likely, as a matter of common sense, that her fellow employees pitched in and helped her if she was not able to physically perform a specific job function. In view of the lack of evidence supplied by Tholke to show she was unable to perform adequately her primary responsibilities as a copy person before the accident, and Dr. Silver's conclusion that Tholke's injuries from her accident were sufficiently minor that she could have resumed the work she had been doing before the accident, the Committee concluded that it was unnecessary to resolve the discrepancy in her job description because it would not change the Committee's decision that she is not eligible for LTD benefits.

Lastly, Tholke alleges that the Committee erred by concluding that she could not perform her job "based [solely] on the injury to her knee, and not whether she could do the material functions of her job on her last day of work." Tholke Aug. 12, 2002 Letter. The minutes of the Committee's July 8, 2002 meeting, as well as Dr. Silver's report, belie her claim that the Committee failed to consider the injury to her spine as an obstacle to her ability to carry out the material functions of her job. Despite the alleged subjective pain asserted by Tholke, Dr. Silver found no objective evidence from the medical records to support her claim that she sustained an injury to her spine from the accident that continued to prevent her from resuming her former work functions. See, e.g., July 8, 2002 Minutes at 3. Although Tholke may not like the conclusion reached by the Committee, based on a review of the documents and records considered by the Committee and Dr. Silver, I cannot conclude that the Committee's decision to deny her LTD benefits was "without reason, unsupported by substantial evidence or erroneous as a matter of law." Miller, 72 F.3d at 1070. Accordingly, defendant did not act in an arbitrary and capricious manner in denying her LTD benefits.


For the foregoing reasons, defendants' motion for summary judgment is granted. The Clerk of the Court is instructed to close any pending motion and remove this case from my docket.


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