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Karce v. Building Service 32B-J Pension Fund

October 31, 2006

ATINA KARCE, PLAINTIFF,
v.
BUILDING SERVICE 32B-J PENSION FUND, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiff Atina Karce brought this action to challenge the denial of her application for a disability pension under a pension plan provided by her former employer, Triangle Cleaning Services, Inc. ("Triangle Services"). Defendant, the Building Service 32B-J Pension Fund (the "Fund"), is a multi-employer employee benefit fund that is the provider and administrator of the pension plan at issue here (the "Plan"). The Fund, which is administered by an equal number of union and management trustees, is regulated by the Employee Retirement and Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. Defendant moves for summary judgment in its favor. Plaintiff cross-moves for summary judgment, limiting her requested relief to an order remanding the case to the defendant for further consideration. For the reasons given below, I deny defendant's motion, grant plaintiff's motion, and remand the case to the trustees of the Fund.

I. BACKGROUND

Karce was a full time employee of Triangle Services until October 31, 2001, when she ceased work after an accident resulting in injury to her back.*fn1 Complaint ¶ 8. On October 7, 2002, the Fund received an application from plaintiff for a disability pension under the Plan, which provides benefits for "total and permanent disability." The affidavit of Frank Smith in support of defendant's motion for summary judgment contains the following definition of "total and permanent disability" covered by the Plan: "A Participant shall be deemed totally and permanently disabled if on the basis of medical evidence satisfactory to the trustees, he or she is found to be totally and permanently unable, as a result of bodily injury or disease to engage in any further employment or gainful pursuit. The Trustees shall determine total and permanent disability and of the entitlement to a Disability Pension hereunder based upon information submitted." Smith Aff. ¶ 5. He alleges that this definition is found in the Summary Plan Description ("SPD"), a document that describes the Plan's benefits for participants, but it is actually from Section 4.11 of the Plan itself. See Smith Aff. Ex. B. The definitions of disability in the Plan and the SPD differ somewhat for the Building Service 32B-J Pension Fund, and to the extent that there is a conflict, the latter controls because it is the employee's primary source of information regarding benefits. Demirovic v. Bldg. Serv. 32B-J Pension Fund, 2006 WL 2988701, at *1 n.1 (2d Cir. Oct. 19, 2006). Nevertheless, because the language in defendant's submissions is not contested by plaintiff, and plaintiff never cites the SPD herself, I will use the Plan definition of "total and permanent disability" quoted by Smith for the purpose of resolving the motions before me. That the communications from the Fund to Karce concerning her application also use the definition from Section 4.11 of the Plan rather than the SPD also diminishes the possible relevance of differences between the definitions. See Smith Aff., Ex. Q, Ex. EE.

Karce's application for disability benefits included (1) a Pension Fund form entitled "attending physician's statement of disability," dated September 17, 2006 and filled out by Dr. Michael Aziz, certifying that plaintiff was totally disabled from her regular occupation and any other occupation, along with another letter from Dr. Aziz stating that she "remains disabled from her work duties;" (2) reports by Dr. Susan Ortiz dated September 24, 2002 and June 25, 2002, both stating that Karce "remains totally disabled from her work activities;" (3) reports by Dr. Alex M. Eingorn from June and September, 2002, recounting the chiropractic procedures he performed on plaintiff and stating that "it is my opinion that [plaintiff] has suffered permanent injuries to her cervical and lumbar spine, and it is not likely that she will ever be able to return to her previous jobs;" (4) two further reports by Drs. Robert C. O. Camoia and Frank M. Moore concerning chiropractic care. Smith Aff. ¶¶ 9, 10.

The Fund's medical advisor prepared two forms dated October 28, 2002 and December 4, 2002 in which the medical advisor recommended denial of the claim. Smith Aff. Ex. P. The Fund denied plaintiff's application by letter dated December 4, 2002 ("Denial Letter"). The pertinent portion of the letter reads as follows:

Dear Atina Karce:

Your application for benefits due to Total/Permanent Disability has been rejected. Section 4.11 of the Pension Plan description, provides that a Participant is totally and permanently disabled if, on the basis of medical evidence, he or she is found to be totally and permanently unable, as a result of bodily injury or disease, to engage in any further employment or gainful pursuit.

The Fund has determined that your condition does not meet the above described eligibility standard, based upon the following information: Doctor Aziz in the physician's statement of disability completed on 09/17/2002, stated that your [sic] are totally disabled; however, he concluded that you will never be able to perform your occupation as cleaning services and maintenance, also on his re-evaluation report dated 10/02/2002, indicated "To date she remains disabled from her work duties."

Considering the medical information submitted, there are [sic] no conclusive information to determine that you are totally disabled for gainful employment at a sedentary level. . . .

Smith Aff., Ex. Q. The Denial Letter went on to inform Karce of her right to receive the documents pertinent to her claim and her right to appeal.

On February 4, 2003, plaintiff appealed the denial of benefits and filed the following additional materials in support of her appeal: (1) January 14, 2003 report by Dr. Ortiz stating that her disability has increased "to the point where she is limited in activities of daily living and is considered unemployable;" (2) January 27, 2003 report by Dr. Aziz noting, "She is unable to maintain sitting position for any prolonged period of time and unable to do any lifting. . . . Currently, she is permanently totally disabled from her occupation in cleaning services and unable to engage in any further employment;" (3) undated report by Dr. Eingorn*fn2 concluding that she "is totally and permanently unable, as a result of her injuries, to engage in any further employment or gainful pursuit. Furthermore, due to the nature and severity of her injuries, sitting is one of the things she is unable to do for any appreciable period of time without experiencing increasing pain and numbness in her lower back and the left leg and foot." Smith Aff. ¶ 15, & Ex. Q.

On May 29, 2003 the Fund's Appeals Committee decided to hold plaintiff's application in abeyance until she could be examined by an independent medical examiner. Dr. Peter Marchisello, the doctor selected by the Fund to perform this examination, submitted a report on July 31, 2003, in which he concluded:

The prognosis of this claimant in my opinion is good. . . . The structural changes as described on the MRI of the lumbosacral spine are permanent and irreversible. The fongminal stenosis is undoubtedly ...


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