Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

BARI v. CONTINENTAL CASUALTY COMPANY

May 19, 2004.

BRET BARI, Plaintiff, -against- CONTINENTAL CASUALTY COMPANY, a/k/a CNA, CITIBANK, N.A., and CITIBANK, N.A. LONG TERM DISABILITY PLAN, Defendants


The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge

OPINION

This is an action under the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq. ("ERISA"). Plaintiff brings this claim against Continental Casualty Company, a/k/a/ CNA ("Continental"), Citibank, N.A. ("Citibank"), and Citibank, N.A. Long Term Disability Plan (the "Plan"), alleging that defendants improperly refused to pay plaintiff disability benefits to which he was entitled as a participant in the Plan. Pursuant to the agreement of the parties and an order of this Court dated December 11, 2003, the parties have filed motions for disposition of the case on the basis of the administrative record. For the reasons that follow, defendant's motion is granted. plaintiff's cross-motion is denied.

BACKGROUND

 1. The Long Term Disability Benefits Plan

  By an adoption agreement dated December 30, 1994, Citibank adopted a Long Term Disability Benefits Plan, as amended and restated effective October 1, 1993 (the "LTD Plan"). At all relevant times, Continental was the Claims Administrator/ Fiduciary of the LTD Plan. Under Article VI, Section 2 of the LTD Plan, the Claims Administrator/ Fiduciary had the authority to perform some or all of the following duties:
A. Determine eligibility for benefits and the amount thereof;
B. Pay benefits;
C. Provide continuous review of the mental and physical condition of a Participant who is receiving benefits;
D. Provide a written explanation to a Participant whose claims for benefits is [sic] denied; and
  E. Review denied claims as provided in Section 6 of this Article. The same section provides that "Notwithstanding anything in this Plan to the contrary, FIserv/ Compensation Services has been authorized to determine the amount of benefits and to pay benefits under the Plan as of the Effective Date."
  Article V, Section 4, of the LTD Plan is entitled "Forfeiture of Long-Term Disability Income." It provides, in part, as follows:
The Claims Administrator/ Fiduciary may require any Participant who is claiming or receiving Long-Term Disability Income to undergo a medical examination by a physician or physicians designated by the Claims Administrator/ Fiduciary. Should any such Participant refuse to submit to such a medical examination, the Participant's claims shall be denied or Long-Term Disability Income shall be discontinued until the Participant's withdrawal of such refusal. Should such refusal continue for 12 months, all rights in and to Long-Term Disability Income shall cease.
Article VI, Section 3, of the LTD Plan, entitled "Source of Benefits," provides as follows:
Except as prohibited by Section 505(b) of the Internal Revenue Code, all benefits payable under this Plan shall be paid solely from the assets of the Trust Fund and no Employer assumes any liability or responsibility for the payment thereof*fn1
  Article IV, Section 6, of the LTD plan provides, in part, as follows, with regard to claims procedure:

  A. Claims Procedures

 
A Participant may make a claim for benefits under this Plan by filing a claim in such form as may be prescribed by the Claims Administrator/ Fiduciary. Within 90 days after receipt of such claim, the Claims Administrator/ Fiduciary shall notify the Participant in writing as to whether the claim has been granted or denied in whole or in part. If the claim is denied in whole or in part, the written notification shall set forth the following in a manner calculated to be understood by the Participant:
(1) the specific reason or reasons for the denial;
(2) specific reference to pertinent Plan provisions on which the denial is based;
(3) a description of any additional material or information necessary for the Participant to perfect the claim and an explanation of why such material or information is necessary; and
(4) an explanation of the review procedures set forth below. B. Review of Denied Claims
Within 60 days after the claim has been denied, the Participant may file a written request for review of the denied claim with the Claims Administrator/ Fiduciary. The Participant shall also be entitled to examine pertinent documents and submit issues and comments in writing. Any decision on review shall be in writing, shall include specific reasons for the decision (including reference to the pertinent Plan provisions on which the decision is based) and shall be written in a manner calculated to be understood by the Participant.
2. plaintiff's Long Term Disability Claim

  In March 1999, plaintiff, a Citibank employee and a participant in the LTD Plan, applied for disability benefits in connection with injuries to his back. By letter dated May 19, 1999, plaintiff was informed that his claim had been approved through July 31, 1999. His claim was subsequently approved by a letter dated August 3, 1999, which informed plaintiff that his claim "has been approved through 8/31/99. Further benefits are pending updated objective medical." Subsequent approvals were communicated to plaintiff in monthly letters from September 1999 through February 2000.

  Plaintiff's claim was assigned to a disability specialist, Bethany Von Steenburg ("Von Steenburg"), and a nurse case manager, Pat Fitzgerald ("Fitzgerald"), both employed by Continental. According to a note dated November 22, 1999, Fitzgerald "[r]eceived call from [plaintiff] reporting that he needs to move to Fla. to be with family," and that "[i]t was explained to [plaintiff] that he must continue with appropriate care and MD, in order to continue benefits. [Plaintiff] stated understanding of this. [Plaintiff] stated that he will call with new MD name and no. ASAP."

  In a letter to plaintiff dated December 15, 1999, Von Steenburg stated that plaintiff "must provide us proof that you are under the care of a physician that is appropriate for your condition and that you are receiving ongoing treatment in accordance with the plan provisions. We will update your benefits through 1/15/00. However, the above information must be submitted by you or your treating doctor in order for us to evaluate your claim further. If this information is not received by 1/15/00, we will be unable to continue our evaluation and we will be forced to close your claim due to lack of medical information to support a disability."

  A letter dated February 2, 2000, from Von Steenburg to plaintiff, provided, in part, as follows:
This letter is to advise you of the status of your claim for Citibank Long Term Disability benefits. Benefits have been approved through 2/29/00. The Citibank Plan allows CNA to have you examined during the course of your claim. You will be contacted shortly about a Functional Capacity Evaluation that you will be required to attend . . . Further evaluation of your claim is pending completion of the testing and our review of the results.
  A Functional Capacity Evaluation ("FCE") is a procedure designed "to define an individual's functional abilities or limitations in the context of safe, productive work tasks." Phyllis M. King, et al., A Critical Review of Functional Capacity Evaluations, 78 Physical Therapy 852, 853 (Aug. 1998). On February 10, 2000, according to a note made by Fitzgerald, a nurse working for Dr. Gillespy, who at that time was treating plaintiff, said that it sounded "great" to order an FCE. On February 11, Fitzgerald made a note of a telephone call she received that day from the person setting up the FCE, who stated that an FCE had been scheduled for February 22, 2000, and that a prescription would be required, which she would attempt to obtain from Dr. Gillespy. According to a memo dated February 17, 2000, plaintiff is said to have stated that his doctor had said that he could not have an FCE.

  In a report dated March 2, 2000, Dr. Gillespy stated that "[o]bjective findings are compatible with symptom magnification according to my physical therapist." He noted under "Work Status" the following: "No work; patient is temporarily totally disabled." He also stated that "Patient is to follow up in the office in four weeks. I do anticipate patient's being discharged from my care at this time and being able to return to work." Dr. Gillespy noted in an entry dated March 10, 2000, that "Patient spoke to my nurse, Kathy, today and stated that he was discharging me as his physician because of changes in physical therapy have caused problems and that he has lost confidence in me."

  On March 13, 2000, Fitzgerald made a record of a conversation with Dr. Gillespy's office, in which she was told that plaintiff had stated that "no medical [information] should be released to anyone." On the same day, Von Steenburg signed a note stating that due to Continental's inability to get information, they would set up an Independent Medical Examination ("IME"), to be ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.