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United States District Court, S.D. New York

September 16, 2005.


The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge


In this action, plaintiff Zbigniew Slupinski challenges the termination of long-term disability benefits that he had been receiving through a plan covered under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. Defendant First Unum Life Ins. Co. ("First Unum") was, at all relevant times, the administrator and insurer of defendant Weil, Gotshal, and Manges Long Term Disability and Income Plan (the "Plan").

First Unum moves for judgment on the administrative record. Plaintiff cross-moves for summary judgment.

  First Unum's motion for judgment on the administrative record is denied. Plaintiff's cross-motion for summary judgment is treated as a motion for judgment on the administrative record and is granted. FACTS

  Plaintiff Zbigniew Slupinski was employed as an associate attorney by the law firm of Weil, Gotshal, and Manges ("WG&M") in 1991. Plaintiff had received his law degree in Poland and specialized at WG&M in the Eastern European markets that were rapidly developing at that time. WG&M had recently opened an office in Warsaw, and plaintiff was assigned the responsibility of overseeing that office, an assignment that required plaintiff to spend approximately half his time in Poland.

  On August 4, 1991, while in Poland on work assignment, plaintiff was involved in an automobile accident that caused him serious injuries. In addition to other injuries he sustained, plaintiff's left ulnar nerve was severed, and other nerves and arteries in his left arm were severely damaged. It is this injury to plaintiff's left arm and the resulting pain therefrom that are the basis of plaintiff's claim for long-term disability benefits ("LTD" benefits) under the Plan. After the accident, plaintiff was immediately hospitalized and was flown to London where he underwent several surgeries on his left arm before retuning to the United States in September 1991.

  Upon his return to the United States, plaintiff unsuccessfully attempted to return to work. On December 1, 1991, plaintiff officially quit his position at WG&M citing continued difficulties with his physical condition. Plaintiff continued to experience functional limitations and pain in his left arm and underwent additional surgeries in 1992 and 1993 in an attempt to regain greater function. While employed at WG&M, plaintiff was enrolled in the WG&M Long Term Disability Income Plan that was insured by First Unum Life Insurance Co. The Plan provided "disability income insurance" to WG&M employees. Under the Plan, WG&M employees were eligible for disability payments if they became "disabled due to sickness or injury" and "require[d] the regular attendance of a physician." The Plan also required that an insured, at his own expense, provide "proof" of these facts both at the time he initially applies for benefits and thereafter when requested by First Unum. The Plan defined "disability" as follows:

  "Disability" and "Disabled" mean that because of injury or sickness:


1. The insured cannot perform each of the material duties of his regular occupation; and
2. After benefits have been paid for 24 months, the insured cannot perform each of the material duties of any gainful occupation for which he is reasonably fitted, taking into consideration training, education or experience, as well as prior earnings.*fn1 (emphasis added). The Plan further provided that "[d]isability benefits will cease on the earliest of . . . (1) the date the insured is no longer disabled."
  On February 25, 1992, plaintiff applied for LTD benefits from First Unum under the Plan. First Unum approved the LTD benefits and plaintiff began receiving those payments on August 3, 1992.

  In addition to his functional limitations, plaintiff also began to complain of severe pain in his left arm making it impossible for him to focus or concentrate on various tasks. Though First Unum asserts that plaintiff only began to complain of pain after his benefits were at risk of termination and when he retained an attorney, it appears that plaintiff complained of pain rather earlier on. In June 1992, while still waiting for an initial determination of eligibility for benefits from First Unum, plaintiff stated to a First Unum "benefits analyst" that he was unable to work due to pain. First Unum's notes of a 1993 phone call with plaintiff indicate that plaintiff's work limitations were related to pain in his left arm and that he was seeking treatment for this pain. Plaintiff also claimed at various times to suffer from memory loss and lack of concentration, and that various pain medications that had been prescribed for him had further limited his cognitive abilities.

  In 1993 plaintiff moved from New York to Vero Beach, Florida where he established treatment with two local physicians, a neurologist named Fernando Miranda, and Romas Sakalas, a neurosurgeon. From time to time, in accordance with First Unum's requests, plaintiff submitted letters from each of these two doctors indicating that he was unable to resume gainful employment due to functional limitations with his left arm. Plaintiff continued to receive benefits during his residency in Florida. During the summer of 1995, as part of what First Unum terms its "ongoing evaluation" of plaintiff's disability claim, it contacted Miranda and Sakalas, requesting that they complete "physical capacity evaluation" forms ("PCEs"). In a PCE dated September 14, 1995, Sakalas stated that although plaintiff's left arm and hand were incapacitated, plaintiff was able to work on a full time basis. Miranda, on the other hand, made contradictory statements. In a PCE dated September 11, 1995, he stated that plaintiff was unable to work even part time. In the same report, however, he indicated that plaintiff could sit, stand, and walk for six hours with rests, and, in what is clearly factually incorrect, that plaintiff had "functional capacity in both hands." Then, in a follow up conversation with Sharon Hogan, a First Unum physician, Miranda stated that he wished to "defer making an assessment of [plaintiff's] work capacity" and that "there would be no contraindication to his returning to work if he specifically asked to do so."

  Also as part of its "ongoing evaluation," First Unum mailed plaintiff a "supplemental statement" form to complete. In it, plaintiff indicated that he was disabled due to "nerve pain." Finally, First Unum retained vocational counselor Leeper to evaluate plaintiff's work capacity. In a report dated November 21, 1995, Leeper concluded that "[u]nless issues exist to impair or diminish cognitive attention and focus, it appears that claimant can perform the occupation of lawyer [without the use of his left arm]."

  On December 1, 1995, First Unum notified plaintiff that, based upon the information it had on his medical condition and on its vocational review, he "no longer met the [Policy's] definition of total disability," and advised plaintiff that his benefits would terminate if he did not submit "medical certification" within 30 days. The letter contained no explanation and simply quoted the definition of disability that appeared in the Plan. On December 5, 1995, plaintiff called First Unum to explain that he was scheduled to see five doctors for evaluations in the near future and would submit updated medical information as soon as possible. First Unum's notes from this conversation include a notation that "pain is severe, it has reduced some but still cannot perform daily activities."

  Not having received the "medical certification" it had requested within the given time, First Unum terminated plaintiff's benefits. In its letter dated December 29, 1995, First Unum stated, again with little explanation, that because plaintiff no longer fell within the policy's definition of the term "disabled," benefits would cease. The termination letter also advised plaintiff that he could submit "new, additional information to support your request for disability benefits" and advised him that he could secure a review of its decision by written request within 60 days.

  Shortly thereafter, plaintiff informed First Unum by letter dated January 1, 1996, that he was in the process of seeing several physicians and would submit additional medical information shortly. In response, First Unum sent a letter to plaintiff, dated January 11, 1996, in which it indicated that the reason for its denial was that plaintiff had "work capacity to perform [his] own occupation or any occupation," and warned that "[i]n order for us to consider reopening your claim, we must have objective medical information that outlines the restrictions and limitations that preclude you from performing your own occupation or any other occupation." (emphasis added).

  On February 27, 1996, plaintiff formally requested a review of First Unum's denial of his claim. The following day, through his attorney, plaintiff informed First Unum that debilitating chronic pain was the essential element of his disability and that his inability to concentrate or focus due to pain prevented his return to work.

  On the same day, plaintiff also submitted a number of letters from physicians that he had seen for treatment in December 1995 and January 1996 stating that, due to his neurological pain, he was unable to return to work. In a letter dated February 21, 1996, Dr. David G. Kline, Chairman of Neurosurgery at Louisiana State Medical Center, stated: "The patient has developed severe burning pain sensation . . . [H]e is unable to return to gainful employment at this time." Another letter by Dr. Robert E. Lovelace, Professor of Neurology at the Neurological Institute in New York and dated February 13, 1996, stated: "[T]he patient . . . is now getting pain sensation which is reported very serious and constantly present . . . he is unable to return to gainful employment at this time." Each of these physicians had examined plaintiff in December 1995. Letters from Doctors Wilson and Kurtz, and a letter from Miranda now revising his September 11, 1995 opinion, contained similar statements. Each letter referred to plaintiff's chronic pain and his consequent inability to return to gainful employment.

  Nevertheless, on March 12, 1996, the same First Unum unit that initially terminated his benefits again rejected plaintiff's claims and stated its refusal to resume paying benefits. It added that First Unum would refer the matter to its LTD Quality Review Section upon written request within 60 days. Shortly thereafter, plaintiff's counsel formally requested this second level review and sent several follow up letters requesting an explanation for First Unum's refusal to reinstate benefits. In a May 16, 1996 letter, Arthur Hackett, a "Senior Benefit Analyst" with First Unum, responded to plaintiff's attorney's inquiries. Mr. Hackett gave as reason for rejecting the letters from Kline, Lovelace and plaintiff's other doctors, the need for "objective evidence of disability." The letter explained that examples of "objective" evidence would include "office notes for periods of treatment, test results showing objective findings, hospital testing including: x-rays, MRIs, and other reports containing additional evidence of [plaintiff's] medical condition." The letter also indicated that the only "objective medical evidence" in the record at that time were PCE forms signed by Miranda and Sakalas in September 1995 indicating that plaintiff could work. Hackett concluded his letter by agreeing to "hold [the] file open for an additional 60 days" to allow plaintiff to "provide objective medical information to us as required under the contract."

  From June 1996 through October 1996, in an attempt to comply with First Unum's requirement that he provide "objective medical evidence," plaintiff submitted additional medical documentation. The majority of these were "treatment notes" from doctors who saw plaintiff between February and June 1996. For example, on June 27, 1996, plaintiff submitted nearly 70 pages of treatment notes from a number of physicians including those of John Carey and William Cheshire, neurologists affiliated with the Mayo Clinic. These letters reiterated plaintiff's complaints of severe pain and further diagnosed plaintiff with causalgia.*fn2 Other documents contained in plaintiff's June 27, 1996 submission were reports by Doctors Steven Shiavitz, Jasper Daube, Jose Zuniga, and Joann Link. These reports also restated plaintiff's complaints of severe chronic pain, and echoed Carey's and Cheshire's diagnosis of causalgia. Plaintiff continued submitting similar documents to First Unum through September 1996.

  In July 1996 First Unum assigned Richard Day, a First Unum in-house physician, to assess plaintiff's physical limitations and his potential ability to return to work. Day reviewed plaintiff's medical documentation but never physically examined plaintiff. Day also contacted only very few of the many physicians that had treated plaintiff. Based upon his analysis of plaintiff's file, Day concluded in a July 30, 1996 memorandum that plaintiff "has work capacity."

  Finally, in a letter dated March 26, 1997, First Unum informed plaintiff of its final determination to deny his claim and reiterated its previous finding that he was not "disabled" within the meaning of the policy. In its letter, First Unum again cited the PCE forms completed by Miranda and Sakalas, indicating that, as of September and October 1995, plaintiff could return to work. The letter also referred to the vocational review conducted by First Unum in November 1995, which concluded that plaintiff could return to work. Finally the letter asserted that "it was not until [a later surgery] on June 26, 1996 that Mr. Slupinski's pain became intolerable." Plaintiff then filed this suit challenging the administrator's decision on January 28, 1999.


  Characterizing the Parties' Motions

  Because a motion for judgment on the administrative record is not explicitly authorized by the Federal Rules of Civil Procedure, courts in this circuit have ruled somewhat differently on how to characterize such a motion. Some district courts have construed a motion for judgment on the administrative record as a motion for summary judgment, see Lott v. Morgan Stanley Dean Witter & Co. Long-Term Disability Plan, 03-CV-9235, 2004 U.S. Dist. LEXIS 19471 (D.N.Y. 2004); Hammer v. First Unum Life Ins. Co., 01-CV-9307, 2004 U.S. Dist. LEXIS 16893 (D.N.Y. 2004), while others have taken it as a request for a "bench trial on the papers," with the district court acting as finder of fact, see Neeb v. Unum Life Ins. Co. of Am., 03-CV-0307, 2005 U.S. Dist. LEXIS 6087 (D. Conn. 2005); DiMaria v. First Unum Life Ins. Co., 01-CV-11413, 2005 U.S. Dist. LEXIS 5366 (D.N.Y. 2005). An action for ERISA plan benefits under Section 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B) is equitable in nature. Therefore, no right to trial by jury exists, DeFelice v. American Int'l Life Assur. Co., 112 F.3d 61, 64 (2d Cir. 1997), and such a bench trial on the papers is "entirely proper." Muller v. First Unum Life Ins. Co., 341 F.3d 119, 124 (2nd Cir. 2003).

  The Second Circuit has thus far indicated its approval of both approaches. In Muller the court was squarely presented with the question of how to characterize a motion for judgment on the administrative record. The court held that "the decision on the motion for judgment on the administrative record, or the District Court's `de novo review of the parties' submissions' and resolution thereof, can best be understood as essentially a bench trial `on the papers' with the District Court acting as the finder of fact. . . . [T]his form of bench trial was entirely proper." Id. at 124. In Napoli v. First Unum Life Ins. Co., 78 Fed. Appx. 787 (2d Cir. 2003), however, the court upheld the district court's treatment of a motion for judgment on the administrative record as a motion for summary judgment. The court held that "although First Unum styled its motion as one for `Judgment on the Administrative Record,' we are bound by the District Court's treatment of that motion as one for summary judgment." Id. at 789.

  This court believes that the most appropriate characterization of this kind of proceeding is as a bench trial under Fed.R.Civ.P. 52 in accordance with Muller. The court will therefore treat both First Unum's motion for judgment on the administrative record and plaintiff's motion for summary judgment as motions for a bench trial "on the papers" as authorized by Rule 52 and approved by the Second Circuit in Muller.

  Standard of Review

  "[A] denial of benefits challenged under § 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 & Rubber Co. v. Bruch, 489 U.S. 101, 115 (U.S. 1989). The court's de novo review extends not only to interpretation or construction of a benefit plan, rather, "the de novo standard of review applies to all aspects of the denial of an ERISA claim, including fact issues, in the absence of a clear reservation of discretion to the plan administrator." Kinstler v. First Reliance Std. Life Ins. Co., 181 F.3d 243, 245 (2d Cir. 1999). Under this standard, no deference at all is accorded to defendant's interpretation of the Plan but on the contrary, any ambiguities in the Plan are to be construed in plaintiff's favor. Masella v. Blue Cross & Blue Shield of Conn., Inc., 936 F.2d 98, 107 (2d Cir. 1991). Furthermore, under such de novo review, the district court "is free to evaluate a treating physician's opinion in the context of any factors it consider[s] relevant, such as the length and nature of their relationship, the level of the doctor's expertise, and the compatibility of the opinion with the other evidence." Locher v. Unum Life Ins. Co. of Am., 389 F.3d 288, 290-91 (2d Cir. 2004) (citation, internal quotation marks and brackets omitted).

  Here, all parties concede that the Plan confers no special discretionary authority upon the administrator. The court's review of First Unum's termination of benefits is therefore de novo both as to the interpretation of the terms of the Plan and a determination of facts.

  Supplementing the Administrative Record

  Another preliminary issue is the scope of the court's review, particularly with regard to evidence not introduced during the claims procedure and therefore not contained within the administrative record. In this regard, plaintiff urges the court to consider his submission titled "Declaration of Plaintiff Zbigniew Slupinsi in Support of his Motion for Summary Judgment." Furthermore, should his motion be denied, plaintiff indicates that he would seek further discovery.

  The decision whether to consider evidence from outside the administrative record is soundly within the discretion of the district court. Muller, 341 F.3d at 125. The court considers plaintiff's declaration to be cumulative of what is already contained in the administrative record. Therefore, the court will evaluate plaintiff's claim for disability benefits solely on the basis of the administrative record developed during the claims process.

  The Merits

  It is well established that plaintiff bears the burden of showing that he was entitled to long-term disability benefits under his plan. Maniatty v. UNUMprovident Corp., 62 Fed. Appx. 413 (2d Cir. 2003). Under the terms of the Plan, in order to be eligible for benefits, an insured must provide "proof" of disability. Furthermore, even after benefits have been awarded, the Plan provides that First Unum may require an insured to provide "proof of continued disability" within 30 days of written request. The Plan, however, makes no explicit statement regarding the nature of "proof" required or what sort of evidence would be competent to prove that an insured is "disabled."

  "It has long been the law of this Circuit that `the subjective element of pain is an important factor to be considered in determining disability.'" Connors v. Connecticut General Life Ins. Co., 272 F.3d 127, 136 (2d Cir. 2001); Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984). Subjective complaints of pain may even alone constitute sufficient evidence of disability. Krizek v. Cigna Group Ins., 345 F.3d 91, 102 (2d Cir. 2003); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).

  The court recognizes that the subjective nature of pain and its often non-objectively quantifiable nature present special credibility concerns. A district court, of course, need not blindly accept complaints of pain as credible. See Aponte v. Sec'y of the Dep't of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984).

  In evaluating the credibility of subjective complaints of pain by a disability benefits claimant, two factors are particularly crucial. First, the existence of some objectively verifiable physical injury to which a claimant's pain may reasonably be attributed assists in ensuring the credibility of a claimant's complaints of pain. The court in Hyatt v. Sullivan, 899 F.2d 329 (4th Cir. 1990) stated:

Once an underlying physical or mental impairment that could reasonably be expected to cause pain is shown by medically acceptable objective evidence, such as clinical or laboratory diagnostic techniques, the [plan administrator] must evaluate the disabling effects of a disability claimant's pain, even though its intensity or severity is shown only by subjective evidence. If an underlying impairment capable of causing pain is shown, its intensity can, by itself, support a finding of disability.
Id. at 337.

  Second, it is of further assistance to have a claimant's complaints of pain accepted and confirmed by physicians who have examined him. See Krizek, 345 F.3d at 101.

  In the present case, each of these two factors, as well as the large volume of other evidence in the record, overwhelmingly supports plaintiff's claim that his severe and chronic pain prevents him from engaging in "any gainful occupation for which he is reasonably fitted."

  First, plaintiff's complaints of pain relate to a serious and objectively proven injury, namely the severe nerve damage to plaintiff's left arm. It is undisputed that plaintiff suffered severe and objectively determined nerve damage leaving him with serious functional limitations. Thus, there is an objective component to his injury that tends to lend greater credibility to his complaints of pain. Plaintiff's doctors have been consistently and uniformly stated that these objective physical injuries can and do explain his severe pain.

  Second, the doctors reports contained in the administrative record consistently confirm plaintiff's repeated statements that he is unable to work due to his constant pain. Most persuasive are the letters by Kline and Lovelace, each of whom examined plaintiff in December 1995 and found him unable to return to work. With one or two questionable exceptions, each of the many doctors who evaluated plaintiff found his complaints of pain to be credible in light of the physical injuries he sustained. Aside from Kline and Lovelace, plaintiff's inability to return to work due to pain was documented by Doctors Carey, Cheshire, Shiavitz, Daube, Zuniga, and Link. The consistency and uniformity with which the doctors who have evaluated plaintiff concur strongly support plaintiff's claims that his pain prevents him from returning to work.

  Contrary to the First Unum's assertions, plaintiff complained of pain long before his benefits were threatened with termination and his retention of an attorney. In a June 12, 1992 phone call with First Unum, even before plaintiff's benefits were initially approved, plaintiff indicated that he was unable to work because of pain. First Unum's notes from a conversation with plaintiff on January 13, 1993 also indicate that plaintiff was, at that time, complaining of nerve pain. In July 1995 plaintiff again indicated, in a "supplemental statement" requested by First Unum as part of its "ongoing evaluation," that he was suffering from "nerve pain." These statements, all made well before there was any indication from First Unum that it was considering termination of benefits, weigh heavily in favor of finding plaintiff's claims credible.

  First Unum relies primarily on the September 1995 PCEs of Miranda and Sakalas and the report of its own physician Day. The court does not find these statements to be credible. With regard to Sakalas's September 14, 1995 PCE stating that plaintiff could work, First Unum does not dispute plaintiff's assertion that Sakalas had not seen plaintiff since January 12, 1995 at which time he stated that plaintiff was "prevent[ed] from gainful employment." Miranda's numerous contradictory and equivocal statements are likewise unconvincing. But even if these two questionable statements were credible they could not possibly outweigh the numerous other medical opinions confirming plaintiff's pain and inability to work.

  Day's report, too, provides little support for First Unum's position. His July 30, 1996 report talks repeatedly both of plaintiff's complaints of pain and his doctors' verification of those complaints. For example, the report notes the following: "June 23, 1994 Dr. Sakalas notes "fairly severe" burning feeling in the hand. . . . January 12, 1995 notes no gainful work"; "April 14, 1995 Dr. Miranda notes no return to work"; March 11, 1996 letter from Dr. Joann Link citing "memory and concentration problems"; "March 15, 1996 Dr. Cheshire note [sic] the pain of the entire hand, and distal forearm dorsal"; "June 21, 1996 Dr. Dorsher notes causalgia . . . Though he did not appear to be acutely uncomfortable the pain was indicated to be 8 out of 10 scale."

  Somehow, despite this overwhelming evidence of plaintiff's painful condition, Day managed to conclude that plaintiff "has work capacity." Day's failure to credit plaintiff's complaints of pain and the "many letters from multiple neurologists, physiatrists, and neurosurgeons" that he reviewed, undermines the significance and credibility of his report. When evaluated side by side with the overwhelming evidence of plaintiff's pain and consequent inability to return to work, the report is of little value.

  The court must now deal with First Unum's argument that any reports of plaintiff's condition subsequent to January 1, 1996 must be disregarded because they do not necessarily reflect plaintiff's condition at the time benefits were terminated. First Unum states that as the burden was on plaintiff to "prove" his disability at the time it made its determination to terminate his benefits, he must show that his condition did not worsen prior to those evaluations. This argument is incorrect. First, it appears that a number of the medical reports submitted by plaintiff and contained in the administrative record do in fact detail plaintiff's condition prior to January 1, 1996, and were therefore unquestionably relevant to First Unum's January 1, 1996 decision to terminate plaintiff's benefits. For example, plaintiff was examined by Kline on December 18, 1995 and by Lovelace on December 27, 1995. Each of these physicians indicated that, as of those dates, prior to termination of benefits, plaintiff was disabled due to his severe pain.*fn3

  More importantly, even after the January 1, 1996 termination of benefits, First Unum repeatedly offered plaintiff the opportunity to submit additional information regarding his medical condition. First Unum could not, on the one hand, offer to consider plaintiff's medical reports submitted after January 1, 1996 and then refuse to do so when those reports were unfavorable to it. Furthermore, such information was unquestionably relevant to a proper determination of plaintiff's ability to work. See Pollard v. Halter, 377 F.3d 183, 193-194 (2d Cir. 2004) (stating with respect to Social Security benefits "that evidence bearing upon an applicant's condition subsequent to the date upon which the earning requirement was last met is pertinent evidence in that it may disclose the severity and continuity of impairments existing before the earning requirement date or may identify additional impairments which could reasonably be presumed to have been present.")

  Pre-Judgment Interest and Attorney's Fees

  In a suit to enforce rights under ERISA, the question of whether or not pre-judgment interest is appropriate lies within the discretion of the district court. In exercising such discretion, the court is to take into consideration "(i) the need to fully compensate the wronged party for actual damages suffered, (ii) considerations of fairness and the relative equities of the award, (iii) the remedial purpose of the statute involved, and/or (iv) such other general principles as are deemed relevant by the court." Jones v. UNUM Life Ins. Co. of Am., 223 F.3d 130, 139 (2d Cir. 2000) (quoting SEC v. First Jersey Securities, Inc., 101 F.3d 1450, 1476 (2d Cir. 1996)) (internal quotation marks omitted). Despite First Unum's wrongful termination of plaintiff's LTD benefits there has been no showing here of the sort of "fairness considerations" that would warrant an award of pre-judgment interest. Indeed, plaintiff does not dispute the fact that he first commenced this action almost two years after First Unum's March 27, 1996 denial. In addition, it appears that plaintiff failed to take any action in this case for nearly three years after his initial counsel withdrew in May 1999. Therefore, plaintiff's request for pre-judgment interest must be denied.

  Plaintiff's request for attorney's fees must likewise be denied. In Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869, 871 (2d Cir. 1987) the court set forth a five factor test to guide the court in its exercise of discretion in determining whether to award attorney's fees in an ERISA case. Under the Chambless test the court is to consider


(1) the degree of the 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' positions, and (5) whether the action conferred a common benefit on a group of pension plan participants. Id. Despite First Unum's improper termination of plaintiff's LTD benefits, the lack of bad faith and absence of a common benefit conferred upon a group of pension plan participants counsels against an award of attorney's fees in this case.
  Accordingly, plaintiff's motion for summary judgment is treated as a motion for judgment on the administrative record and is granted and First Unum's motion for judgment on the administrative record is denied.



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