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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 ...

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