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August 13, 2003


The opinion of the court was delivered by: Robert Carter, Senior District Judge


Plaintiff Lori Wagner commenced this action against defendant First Unum Life Insurance Company ("First Unum"), under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132, claiming entitlement to unpaid long term disability benefits. Both parties now move for judgment on the administrative record, pursuant to Rule 56, F.R.Civ.P.

Plaintiff was employed as an international securities market analyst in the global retail trade and restaurant section of an investment banking firm. (Pl. Ltr. at 1.) She worked approximately 10 1/2 hours a day, and up to 18 hours a day while she was traveling. (Id. at Ex. 1.) Her job required frequent travel abroad to conduct field evaluations of local economies and of target companies and their competitors. (Id.)

Beginning in 1997, plaintiff experienced a number of alleged anaphylactic attacks,*fn1 involving swelling in the throat and of other body parts, tinnitus (ringing in ears), extreme fatigue, headaches, vertigo, rashes, and pruritis (itching). (Id. at 2; Def.'s Mem. at 4.) Based on her treating physician, Dr. John Postley's, opinion that it would be dangerous for her to travel, plaintiff secured a modification of her work duties. (Id.) [ Page 2]

On or about September, 1999, plaintiff submitted a disability claim form, asserting that she became disabled beginning June 19, 1999.*fn2 (Def.'s Mem. at 4.) Her proof of claim was completed in November, 1999, when Dr. Postley submitted an Attending Physician Statement. Dr. Postley stated that plaintiff's primary diagnosis was idiopathic anaphylaxis ("IA"), a severe allergic reaction to an unknown agent. (Id.) He wrote, "Patient is not able to travel outside of N.Y.C. or be exposed to extremes in temperature, may not work long hours or become fatigued." (Id. at 5.) In a subsequent letter, Dr. Postley clarified that "Ms. Wagner's work requires her to visit companies in developing nations which do not have adequate health facilities. . . . She may be able to perform other duties but she may not travel in a way which is necessary for her current job description." (Id. at 6.)

First Unum conducted a medical review based on Dr. Postley's letters and the medical records that had been submitted. The review concluded that there was a lack of [ Page 3]

evidence of a continuous disability, as anaphylactic attacks typically occur infrequently and do not require prolonged recovery. (Id. at 5.) It also noted that it would be prudent to determine whether travel was a material duty of plaintiff's occupation. (Id. at 6.) Toward this end, First Unum commissioned a labor market survey by a consulting company, which concluded that travel is not an essential function of the occupation of Financial Analyst. Id. at 7.) On January 12, 2000, First Unum denied plaintiff's claim, citing both the medical evidence and the labor market survey. (Id.)

Plaintiff appealed the decision, and submitted new information about her medical condition. Specifically, Dr. Postley, and another doctor, Ahnna Lake, informed First Unum that in addition to IA, plaintiff was also being treated for a series of endocrine imbalances, chronic thyroid inflammation, a hypoadrenal state, and corticosteroid insufficiency. (Id. at 8.)

This new medical information was reviewed by Dr. Woolson Doane, an Associate Medical Director for First Unum. (Id. at 9.) On April 19, 2000, Dr. Doane concluded that limiting travel to areas without Western style medicine would be advisable, but that adequately treated, plaintiff had "no disease process that precludes sedentary or light work occupations." (Id.) Upon speaking with Dr. Lake and reviewing additional medical information, Dr. Doane recommended an expert medical review by an [ Page 4]

Allergist/Immunologist and an Endocrinologist. (Id. at 9-10.)

During this period, Wagner retained consultants who submitted more information about her job classification. (Id. at 10.) First Unum conducted a vocational review based on the consultants' reports, and concluded that Wagner was more properly classified as a Market Research Analyst rather than a Financial Analyst. (Id.) First Unum further concluded that the occupation of Market Research Analyst may require travel. (Id.)

Upon receipt of this information, some of which was incorporated in a letter written on plaintiff's behalf by Robert Cope, whose company served as Administrator of Benefits for the Securities Industries Association, First Unum notified Wagner on May 25, 2000, that it would commence paying benefits, retroactively, with a reservation of rights, while it continued to gather medical information through Independent Medical Examinations ("IME's") and a personal interview. (R. 300-301.) First Unum continued to make payments to Wagner through January 25, 2001. (Pl.'s Ltr. at 2.)

In December of 2000, First Unum informed Wagner that, rather than setting up IME's, it was "sending her medical records to an outside consortium for impartial review." (Def.'s Mem. at 10.) Three doctors examined plaintiff's file. Dr. N. Franklin Adkinson, Jr., Professor of Medicine at Johns Hopkins University and Training Program Director of [ Page 5]

its Allergy/Immunology Program, found no objective evidence of angioedema (the internal swelling that could accompany an IA episode and lead to breathing difficulty), and stated that even if plaintiff had IA, most patients with IA lead normal lives and continue work and family responsibilities, and that the vast ...

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