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Taher v. Motorola

July 18, 2007

MURAD A. TAHER, PLAINTIFF,
v.
MOTOROLA, INC. AND MOTOROLA DISABILITY INCOME PLAN, DEFENDANTS.



The opinion of the court was delivered by: John T. Elfvin S. U.S.D.J.

MEMORANDUM and ORDER*fn1

INTRODUCTION

Plaintiff Murad Taher commenced this action against his former employer Motorola, Inc., and The Motorola Disability Income Plan (together "Motorola") pursuant to the Employees Retirement Income Security Act, 29 U.S.C. §1001 et seq. Taher seeks payment of short-term and long-term disability benefits that he claims are due him under the terms of the Plan. Pending before the Court are Taher's and Motorola's competing Motions for Summary Judgment.

FACTS

The following facts are undisputed, except where noted. Plaintiff Murad Taher commenced employment for Motorola on January 23, 1995 and was employed as a systems operator. During his employment, Taher was covered under the Motorola Disability Income Plan ("the Plan") which provided for both short-term and long-term disability benefits. Motorola designated the Administrative Committee as the Plan's administrator. The Administrative Committee, in turn, named CORE, Inc. ("CORE") as the Motorola Disability Management Program which is responsible for certifying the disability finding of a claimant's treating physician and managing the disability process. CORE compiled all of the relevant medical information and made recommendations to the Administrative Committee. The Administrative Committee also delegated the review and determination of benefits claims to the Motorola Benefits Review Committee.

On September 28, 2002 Taher was involved in a motor vehicle accident. He thereafter applied for short-term disability benefits which were granted subject to on-going disability certification. Motorola, through CORE, conferred with two physicians treating Taher, Dr. Frederick Occhino and Dr. John Pollina. Dr. Occhino began treating Taher and advised CORE in medical notes dated October 11, 2002 and January 14, 2003 that Taher was disabled from working. (R. 230-32; 264-67).*fn2 Dr. Occhino advised that he was Taher's primary treating physician. (R. 299).

On January 29, 2003, Dr. Occhino's office advised Dr. J.D. Beavers, a CORE medical specialist, that he had referred Taher to Dr. Pollina. CORE also obtained treatment records and a letter from Dr. Pollina to Dr. Occhino dated January 31, 2003 and reflecting Dr. Pollina's examination of Taher on January 16, 2003. (R. 261-62). Dr. Pollina concluded that Taher had lower back pain radiating down his legs attributable to a very mild herniated disc in the lumbar region. (R. 262). Dr. Beavers spoke with Dr. Pollina who opined that Taher's symptoms were out of proportion with Dr. Pollina's findings upon examination and review of the MRI. Dr. Pollina expected Taher to be able to return to work on or about February 16, 2003. (R. 164). On February 14, 2003, Dr. Beavers again spoke with Dr. Pollina who then stated that Taher should continue on disability until March 16, 2003. (R. 166).

Dr. Beavers attempted to contact Dr. Pollina for an update as to Taher's status on March 17, March 19 and March 24, 2003, but received no return calls. (R. 166). On March 26, 2003, Dr. Beavers called Dr. Occhino's office for a report on Taher's status, but was informed by Dr. Occhino's office that Dr. Pollina was to determine Taher's future treatment. (R. 166). As Dr. Beavers was unable to obtain a status report as to Taher's disability, he recommended that short-term disability benefits be terminated as of March 16, 2003.*fn3 Taher was advised of such determination by letter dated March 28, 2003.

On April 9, 2003 Taher filed an appeal of the termination of his benefits and provided an April 10, 2003 prescription note from Dr. Occhino opining that Taher was totally disabled and indicating that Taher was to follow up with Dr. Pollina. (R. 142- 43). On April 16, 2003, Taher advised CORE by telephone that he would commence seeing Dr. Whagamare, a pain specialist, on the referral of his neurosurgeon (presumedly, Dr. Pollina) but that he would not be able to commence such treatment until June, 2003 due to Dr. Waghmarae's schedule. At that time, he provided a telephone number for Dr. Waghmarae. On April 23, 2003, Dr. Beavers reviewed Taher's file and attempted to contact Dr. Pollina again. Dr. Beavers noted that Dr. Pollina refused to discuss Taher's case and said that he had referred Taher back to Dr. Occhino. (R. 93). Dr. Occhino did not return messages left for him by Dr. Beavers on April 16 and April 21, 2003. (R. 93).

In May 2003, CORE scheduled Taher for an independent medical examination by Dr. Hughes, a neurologist. In the notice for his appointment, Taher was advised to bring with him to the exam any additional medical records which had not previously been submitted. Taher appeared for the exam on June 9, 2003, but did not submit any additional medical records. In a June 9, 2003 report, Dr. Hughes opined that Taher was able to resume his work activity with no restriction and concluded that Taher exhibited some signs of symptom magnification. (R. 175-78). Dr. Hughes also completed a Modification Checklist which included some mild exertional limitations. (R. 272). On June 11, 2003, Dr. Hughes was asked to clarify his Modification Checklist as it appeared to conflict with the content of his report, specifically wherein he opined that Taher could work without restriction. In response, on June 13, 2003, Dr. Hughes revised the Modification Checklist by removing all restrictions. (R. 92). In an addendum to his June 9, 2003 report, Dr. Hughes also clarified that, as he had not examined Taher until June 9, 2003 and as he lacked any records pertaining to Taher's treatment, if any, between March 16 and June 9, he was unable to conclude whether or not Taher was disabled on March 16, 2003. This addendum was faxed to CORE on June 27, 2003. (R. 370). On June 30, 2003, CORE recommended to Motorola that the termination of short-term benefits be upheld. (R. 117).

In July 2003, Motorola arranged to have Taher's file reviewed by independent physicians under a peer review analysis. On July 17, 2003, Motorola advised Taher that the deadline for determining his appeal had been tolled during the pendency of the independent medical examination and that a determination would be reached as soon as possible. (R. 116). On or about July 22, 2003, Taher advised Motorola that he had seen a Dr. Lewis and that Dr. Lewis had scheduled him for surgery, but did not provide CORE with the anticipated date for the surgery.*fn4 Taher never provided CORE with the medical records from his July 1, 2003 appointment with Dr. Lewis.*fn5 Also in July 2003, Taher was involved in another motor vehicle accident but apparently never advised Motorola or CORE of that event.

On August 11, 2003, at CORE's request, Dr. Leela Rangaswammy, an orthopedist, completed a peer review analysis of Taher's file. (R. 137-40). She attempted to contact Taher's "treating physician" on nearly 30 occasions between July and August 2003, but the office would not cooperate with her requests for information.*fn6 She concluded that, based on the information in the file, Taher was not disabled. (R. 138-39). On September 5, 2003, another peer review was conducted by Dr. F. Daniel Kharrazi, an orthopedist. (R. 109-11). After Dr. Occhino refused to speak with Dr. Kharrazi, Dr. Kharrazi conducted a review of Taher's file and also concluded that Taher was not disabled and could work without restrictions. (R. 110).

Also on September 5, 2003, CORE forwarded Taher's claim file to Motorola, concluding that the file supported the termination of benefits. (R. 101). On September 10, 2003, CORE confirmed that it had concluded that Taher had not substantiated his claim and recommended denial of Taher's appeal. (R. 86). On September 11, 2003, Motorola denied Taher's appeal for short-term disability benefits. (R. 84-85).

On October 14, 2003, Motorola was contacted by counsel for Taher seeking the Plan document and the claim file. (R. 112). On January 7, 2004, counsel for Taher sent to Motorola a number of medical records which had not been previously supplied to Motorola or to CORE.*fn7 (R. 57-75). Motorola forwarded the records to CORE on February 9, 2004. (R. 56). On January 29, 2004, counsel provided Motorola with a ...


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