United States District Court, E.D. New York
March 22, 2004.
GERARD P. WINTER, Plaintiff, -against- THE HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, Defendants
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
The plaintiff Gerard P. Winter ("Winter" or the "plaintiff") commenced
this action under the provisions of the Employee Retirement Income
Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., alleging that the
defendant The Hartford Life and Accident Insurance
Company ("Hartford" or the "defendant") improperly denied long term
disability benefits to him. Presently before the Court is a motion for
summary judgment by Hartford.
Winter was employed as a money market broker with United News &
Media and their Affiliates ("United News") from prior to July 1, 1997
until on or about December 2, 1998. Pursuant to his employment by United
News, Winter was a participant in an employee welfare benefit plan (the
"Plan") which was sponsored by his employer. The benefits provided under
the Plan included long-term disability benefits which are provided
through a group insurance policy, GL/GLT 208118 (the "Group LTD Policy"),
issued by Hartford to the plaintiff's employer, United News.
On or about December 2, 1998, the plaintiff ceased working for United
News. On or about April 23, 1999, the plaintiff submitted a claim for
long-term disability benefits pursuant to the terms of the Group LTD
Policy (the "Claim"). In this Claim, the plaintiff indicated that his
"severe back pain" made him unable to work. In particular, the plaintiff
indicated that the "constant and continued sitting [and] lack of movement
[was] aggravating [his] condition." Moreover, in the accompanying
"Attending Physician's Statement of Disability," the plaintiff's treating
physician Ralph C. Marcove, M.D. ("Dr. Marcove") indicated, among other
things, that Winter suffered from Marie Strumpel Disease, which is a
debilitating disease of the spine.
On August 13, 1999, Hartford determined that it would approve the
plaintiff's claim for long-term disability benefits based on a
determination that he was totally disabled for his own occupation "at
th[at]time." By letter dated August 17, 1999, Maryann Iannettone
("Iannettone"), a claims examiner for Hartford, advised the plaintiff
that his claim for long-term disability benefits had been approved. This
letter indicated, among other things, that the benefit payments would
continue so long as the plaintiff met the policy definition of "total
disability" which was defined:
Total Disability or Totally Disabled means that you
are prevented by:
(1) accidental bodily injury;
(3) mental illness;
(4) substance abuse; or
(5) pregnancy, from performing the Essential Duties of
Your Occupation and as a result you are earning less
than 20% of your Pre-disability Earnings, unless
engaged in a program of Rehabilitative Employment
approved by us.
Thereafter, Hartford began paying long term disability benefits to the
plaintiff in the gross amount of $5,500.00 per month (minus reductions
for other income benefits) effective from March 3, 1999.
On March 22, 2000, John Acampa, M.D. ("Dr. Acampa") submitted an
"Attending Physician's Statement of Continuing Disability" in which he
indicated that his primary diagnosis was "Anklosing Spondylitis" which
caused "limited mobility of [his] neck and
On April 12, 2000 and April 13, 2000, investigators hired by Hartford
observed and monitored Winter's activities. According to the
investigation report and accompanying surveillance video, Winter was
observed, among other things, driving his car, doing errands, walking,
bending and engaging in other physical activities at a local boat yard.
Hartford attempted to contact Dr. Acampa, the plaintiff's physician,
regarding the surveillance video tape but was unsuccessful.
In a letter dated July 7, 2000, Iannettone advised Winter that Hartford
had completed its review of his claim for benefits and had determined
that he no longer met the definition of total disability. This letter
indicated that Hartford's decision was based on, among other things, (1)
the Claim; (2) the Claimant Questionnaire form dated March 1, 2000 in
which the plaintiff indicated that his activities during a typical day
included "some morning stretching, walking short distances, some local
driving, reading and watching T.V."; (3) the Physical Aspects of the
plaintiff's occupation which included "occasional standing and
keyboard/repetitive hand motion and continuous sitting"; and (4) the above
mentioned surveillance video and Special Investigative Reports dated
April 14, 2000 and May 4, 2000. The plaintiff was informed that his long
term disability benefits would be terminated as of May 1, 2000. This
letter also indicated to the plaintiff that he can appeal Hartford's
decision to terminate the benefits and supplement his file with
On or about September 6, 2000, the plaintiff requested a review of
Hartford's determination that he was no longer eligible for benefits and
submitted additional documentation in connection with his request for
review. This additional documentation included Dr. Acampa's treatment
notes from a period of December 14, 1999 through May 25, 2000; a letter
dated May 23, 2000 and November 15, 2000 from Catherine Swanson Giuffre,
M.S.W., C.S.W.; a letter dated September 16, 2000 from Dr. Acampa; and a
letter dated October 30, 2000 from Howard M. Boskey, M.D.
On or about December 20, 2000, Shelley Worley ("Worley"), a Behavioral
Healthcare Manager reviewed the plaintiff's claim file which included the
original application, the surveillance tape and the material submitted
through the appeal. In her "Summary Detail Report" Ms. Worley concluded,
among other things, that "if [the plaintiff] were provided a simple
adjustable workstation he would be able to perform his desk work and
phone work while being allowed to change his position as needed. There are
documents provided with the appeal that indicate limitations due to his
pain and his depression but these statements are totally refuted by the
physical evidence on the tape. . . ." Summary Detail Report dated Dec.
In a "Medical Report" dated January 1, 2001, Dr. George Kazda, an
Associate Medical Director for Hartford, concluded that "Mr. Winter has
the functional capacity to engage in sedentary occupation on full time
basis." Dr. Kazda acknowledged Dr. Acampa's
letter dated September 16, 2000 in which Dr. Acampa indicated, among
other things, that Winter complained of back pain which was aggravated by
sitting and walking and that he could only tolerate walking half a block
and with severe pain, standing for ten minutes at a time and sitting for
five minutes at a time. However, Dr. Kazda concluded that "[Dr. Acampa's]
information is in marked contrast to photographic and video surveillance
evidence obtained on Mr. Winter in April of 2000."
Thereafter, by letter dated January 25, 2001, Hartford indicated that
it affirmed its earlier decision denying benefits to the plaintiff.
The plaintiff commenced this action alleging that Hartford improperly
denied long term disability benefits to him. Presently before the Court
is Hartford's motion for summary judgment. This motion requires the Court
to (1) determine the standard of review the Court must use in evaluating
Hartford's decision to deny the plaintiff long term disability benefits;
and (2) using that standard, determining whether, as a matter of law,
Hartford had a right to deny benefits to the plaintiff.
A. Summary Judgment Standard
Summary judgment must "be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering a motion
for summary judgment, a district court must weigh several considerations
in evaluating whether to grant a motion for summary judgment with respect
to a particular claim. Gallo v. Prudential Residential Servs., Limited
Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). The Second Circuit
indicated that: (1) the moving party carries the burden to demonstrate
that no genuine issue respecting any material fact exists; (2) all
ambiguities and inferences must be resolved in favor of the non-moving
party; (3) the moving party may obtain summary judgment by showing that no
rational jury could find in favor of the non-moving party because the
evidence to support its case is so slight; and (4) the trial court's duty
is confined to issue finding and does not extend to issue resolution.
Id.; see also B.F. Goodrich v. Betkoski, 99 F.3d 505, 522 (2d Cir. 1996).
In addition, a court should be mindful in such a case that unresolved
issues must be material in order to survive summary judgment, and that
"the mere existence of factual issues where those issues are not
material to the claims before the court will not suffice to defeat a
motion for summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9,
11 (2d Cir. 1986).
B. Determining the Standard of Review of Denial of Benefits
The Supreme Court has held that "a denial of benefits challenged under
[29 U.S.C. § 1132(a)(1)(B)] is to be reviewed under a de novo standard
unless the benefit plan gives the administrator or fiduciary
discretionary authority to determine eligibility for benefits or to
construe the terms of the plan." Firestone Tire and Rubber Co. v. Bruch,
489 U.S. 101, 115, 109 S.Ct 948, 956-57 (1989). Where an ERISA covered
benefit plan gives the plan administrator discretionary authority to
determine eligibility for benefits, the administrator's decision will not
be disturbed unless it is arbitrary and capricious. See Reichelt v.
Emhart Corp., 921 F.2d 425, 431 (2d Cir. 1990), cert. denied,
501 U.S. 1231, 111 S.Ct. 2854 (1991); see also Pagan v. NYNEX Pension
Plan, 52 F.3d 438, 442 (2d Cir. 1995). The "trustee or administrator
should bear the burden of proving that the `arbitrary and capricious'
standard should apply in a given case." Barnable v. First Fortis Life
Ins. Co., 44 F. Supp.2d 196, 202 (E.D.N.Y. 1999) (quoting Kinstler v.
First Reliance Standard Life Ins. Co., No. 96 Civ. 921, 1997 WL 401813,
at *4 (S.D.N.Y. July 16, 1997). Furthermore, "any ambiguities must be
construed against the administrator and in favor of the party seeking
judicial review." Arthurs v. Metropolitan Life Ins. Co., 760 F. Supp. 1095,
1098 (S.D.N.Y. 1991).
Although no "magic words" are required to trigger one or the other
level of review, "when making this determination, courts must examine the
relevant plan documents to determine whether the administrator is given
the power to construe doubtful terms or to resolve disputes over benefit
eligibility." Zisel v. Prudential Ins. Co. of Amer., et al.,
845 F. Supp. 949, 950 (E.D.N.Y. 1994); see also Jordan v. Retirement
Comm. of Rensselaer Polytechnic Inst., 46 F.3d 1264, 1271 (2d Cir. 1995)
("While magic words
such as discretion and deference may not be absolutely necessary to
avoid a stricter standard of review, their presence . . . is certainly
helpful in deciding the case." (internal citations and quotations
Here, it is undisputed that Hartford acts as the claims administrator
with respect to long-term disability benefits under the Plan. However,
the parties disagree as to which plan documents should be used to
determine whether Hartford, as the claims administrator, has
discretionary authority to determine eligibility for benefits. In
particular, Hartford claims that the terms set forth in the Group LTD
govern. On the other hand, the plaintiff maintains that the Summary Plan
Description (the "SPD") governs.
The Group LTD Policy states in part:
Who Interprets Policy Terms and Conditions?
The Hartford has full discretion and authority to
determine eligibility for benefits and to construe and
interpret all terms and provisions of the Group
Insurance Policy. (Emphasis added).
However, the plaintiff argues that because the SPD only provides that
"[t]he Hartford reserves the right to determine if your proof of loss is
satisfactory," there is "[n]o expression of a clear intent to vest the
administrator with discretionary authority . . . and a de novo review
should apply. . . ." Plfs. Mem. in Opp. p. 6. The Court disagrees.
Under ERISA, employers offering pensions and benefits plans covered
under its statutory scheme must distribute a Summary Plan Description
("SPD") to participants in
those plans. Poccia v. Prudential Ins. Co., 74 F. Supp.2d 240, 247
(E.D.N.Y. 1999) (citing Heidgerd v. Olin Corp., 906 F.2d 903, 907 (2d
Cir. 1990)); see also 19 U.S.C. § 1024(b)(1) (Employers must furnish "each
participant with a copy of the summary plan description."). This SPD must
"be sufficiently accurate and comprehensive to reasonably apprise such
participants and beneficiaries of their rights and obligations under the
plan" 29 U.S.C. § 1022(a)(1).
However, "by definition, a summary will not include every detail of the
thing it summarizes," Sprague v. General Motors Corp., 133 F.3d 388, 401
(6th Cir. 1998). Therefore, "[a]n omission from the summary plan
description does not, by negative implication, alter the terms of the
plan itself." Id. Here, the Group LTD Policy expressly indicates that
"[t]he Hartford has full discretion and authority to determine
eligibility for benefits and to construe and interpret all terms and
provisions of the Group Insurance Policy." (Emphasis added). This language
does not conflict with relevant terms in the SPD. Accordingly, the Court
must apply the arbitrary and capricious standard to determine whether
Hartford improperly denied benefits to the plaintiff.
In any event, even if the two terms were inconsistent, the "plaintiff
would still have to show that [he] either relied to [his] detriment on
the allegedly inconsistent provisions, or [was] otherwise prejudiced by
those provisions." Pocchia v. Prudential Ins. Co., 74 F. Supp.2d at 249;
see also Manginaro v. Welfare Fund of Local 771, 21 F. Supp.2d 284,
296 (S.D.N.Y. 1998) ("Permitting a plaintiff to prevail upon a showing of
either detrimental reliance upon, or possible prejudice flowing from, a
faulty SPD, also appears consistent with the approach taken by the
majority of courts to have considered this issue."). In this case, the
plaintiff has not indicated that he detrimentally relied on the SPD or
that he was otherwise prejudiced by the provisions of the SPD. See
Pocchia, 74 F. Supp.2d at 249.
C. Application of the "Arbitrary and Capricious" Standard.
Under the "arbitrary and capricious" standard of review, this Court may
overturn a decision to deny benefits only if the decision was "`without
reason, unsupported by substantial evidence or erroneous as a matter of
law.' " Pagan v. NYNEX Pension Plan, 52 F.3d 438, 442 (2d Cir. 1995)
(quoting Abnathya v. Hoffman La Roche, Inc., 2 F.3d 40, 45 (3d Cir.
1993). "Substantial evidence is `such that a reasonable mind might accept
as adequate to support the conclusion reached by the [decision maker and]
. . . requires more than a scintilla but less than a preponderance.'"
Todd v. Aetna Health Plans, 62 F. Supp.2d 909, 913 (E.D.N.Y. 1999)
(quoting Miller v. United Welfare Fund, 72 F.3d 2066, 1072 (2d Cir.
1995); see also Pagan, 52 F.3d 40 ("This scope of review is narrow, thus
[the court is] not free to substitute [its] own judgment for that of
[plan administrator] as if [the court were] considering the issue of
A review of the record reveals that a significant factor in Hartford's
the plaintiff is not entitled to benefits was the above mentioned
surveillance tape. Both Dr. Kazda and Worley indicated that the
surveillance tape contradicted the plaintiff's medical records. However,
the parties dispute the nature of the activities observed in the tape, in
addition to the lengths of time, distance and editing techniques. In the
Court's view, the surveillance video alone, which was approximately
twenty minutes in duration and purports to represent two full days of
activity, does not constitute substantial evidence supporting the denial
of long term disability benefits.
Moreover, Hartford's final decision to deny benefits to the plaintiff
was based largely in part on Dr. Kazda's January 1, 2001 Medical Report.
Dr. Kazda's Medical Report concluded that the video surveillance
contradicted Dr. Acampa's conclusion, which was memorialized in a
September 16, 2001 letter:
[Winter's] spine immobility has caused him to have a
permanent impairment involving his muscular skeletal
system and this patient is totally disabled. He has
severe limitations on standing, sitting and
ambulating. He requires narcotics and
anti-inflammatories on a daily basis to control his
pain. His ankylosing spondylitis has been a
progressive disease, poorly controlled by
anti-inflammatories and analgesics. Progressive
ankylosing spondylitis has yielded a condition in
which he is totally disabled from his occupation as a
Letter from John W. Acampa, M.D. to Christopher D. Latham, Esq.,
dated Sept. 16, 2001.
Because Dr. Kazda never examined the plaintiff, his opinions about
condition are entitled to less weight than the plaintiff's treating
physicians who were in a better position to evaluate the extent and
severity of her pain. See Durr v. Metropolitan Life Ins. Co.,
15 F. Supp.2d 205, 213 n. 2 (D. Conn. 1998) (Although not binding, Social
Security standards are "nonetheless instructive" in ERISA cases.)
(citations omitted); Piscottano v. Metropolitan Life Ins. Co.,
118 F. Supp.2d 200, 212 (D. Conn. 2000); see also Turay v. Aetna U.S.
Healthcare, 160 F. Supp.2d 557, 563 (S.D.N.Y. 2001). There are triable
issues of fact that preclude summary judgment. Among these issues are
Dr. Kazda's report which is conclusory in nature in that it fails to
specifically address the records of Dr. Acampa and the plaintiff's other
treating physicians and the fact that the parties dispute the contents of
the surveillance tape.
Drawing all inferences in favor of the non-moving party, the Court
finds that Hartford failed to satisfy its burden of demonstrating that no
genuine material issue of fact exists. Accordingly, the defendant's
motion for summary judgment is denied.
Based on the foregoing, it is hereby
ORDERED, that the defendant's motion for summary judgment is DENIED; and
it is further
ORDERED, that this case is to remain on the twenty-four hour non-jury
reserve trial calendar.
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