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Fitzpatrick v. Bayer Corp.

January 17, 2008

LISA M. FITZPATRICK, PLAINTIFF,
v.
BAYER CORPORATION, AND BROADSPIRE NATIONAL SERVICES, INC., F/K/A KEMPER NATIONAL SERVICES, DEFENDANTS.



The opinion of the court was delivered by: Richard J. Sullivan, District Judge

MEMORANDUM AND ORDER

Plaintiff Lisa M. Fitzpatrick brings this action against Bayer Corporation ("Bayer") and Broadspire National Services, Inc., formerly known as Kemper National Services ("Kemper") (collectively "Defendants"), seeking to reinstate long term disability ("LTD") benefits and to recover past benefits allegedly owed to her under the terms of the Bayer Disability Plans.*fn1 Plaintiff alleges that Defendants arbitrarily and capriciously denied her claim in violation of Section 502 of the Employer Retirement Income Security Act of 1974 ("ERISA").*fn2 The parties now cross- move for summary judgment. For the reasons that follow, Plaintiff's motion is DENIED and Defendants' motion is GRANTED.

I. BACKGROUND

A. The Bayer Plan

Plaintiff began working at Miles, Inc. (a predecessor of Bayer) on May 23, 1988, as a secretary. (Defs.' 56.1 ¶ 1.)*fn3 Bayer offered an employee welfare benefit plan governed by ERISA called the Bayer Corporation Disability Plans (the "Plan"). (Defs.' 56.1 ¶ 3.) The Plan provided LTD benefits to qualifying employees. (Id. ¶ 4.) The benefits are paid out of a trust funded by contributions from Bayer and participant salary reductions, and the money held in that dedicated trust is used exclusively for the payment of Plan expenses and benefits. (Id. ¶ 5.)

The Plan identifies Bayer as the Plan Administrator, and grants to Bayer the exclusive discretionary authority to make eligibility determinations under the Plan. (Id. ¶ 6.) Specifically, the Plan states that Bayer shall have the exclusive right to make any finding of fact necessary or appropriate for any purpose under the Plans including, but not limited to, the determination of the eligibility for and the amount of any benefit payable under the Plans. [Bayer] shall have the exclusive discretionary right to interpret the terms and provisions of the Plans and to determine any and all questions arising under the Plans or in connection with the administration thereof, including, without limitation, the right to remedy or resolve possible ambiguities, inconsistencies or omissions, by general rule or particular decision . . . .

(Id. ¶ 7.) Bayer has assigned the authority to make final benefits eligibility determinations to the Bayer Benefits Administration Committee (the "Committee") (Id. ¶ 6), while Kemper has been retained to oversee the dayto- day administration of claims. (Id. ¶ 10.) Kemper is responsible for making initial claim benefit determinations under the Plan. (Id. ¶ 11.) However, pursuant to the Service Agreement between Bayer and Kemper, the ultimate authority to make final eligibility determinations and interpret Plan provisions remains with the Committee. (Id. ¶¶ 10-12.)

Under the Plan, qualified employees are eligible for short-term and long-term disability benefits, provided that the employee meets the criteria outlined by the Plan. (Id. ¶ 8.) The Plan informs employees that, in order to initially qualify for LTD benefits, you must be unable to perform the essential duties of your regular occupation. You must provide the company and claims administrator periodically with proof of your disability and your disability will need to be medically verified. The claims administrator may ask you to be examined by an independent doctor to verify your continuing disability.

(Id.) After six months of receiving LTD benefits, the Plan requires that the employee be "totally disabled" in order to continue to be eligible for LTD benefits. (Id.) In order to be considered "totally disabled" the employee must be "unable to work at any job for which [he or she is] or could become qualified by education, training or experience." (Id.) The Plan further provides that benefits will cease automatically if, among other things, the employee is deemed to be no longer disabled, is no longer under the care of a physician, fails to "provide satisfactory proof of [his or her] continuing disability" or refuses to be examined by a Plan doctor. (Id. ¶ 9; see also Zimmerman Decl. ¶ 2(C), Ex. C at 511.)

B. Plaintiff's Claim for LTD Benefits

On or about February 22, 1993, Plaintiff ceased working at Bayer, citing Chronic Fatigue Syndrome ("CFS") as the reason for her departure. (Defs.' 56.1 ¶ 2; Pl.'s 56.1 ¶ 1.) She returned briefly on March 22, 1993 before leaving again on April 8, 1993. (Defs.' 56.1 ¶ 2.) She returned to Bayer to work halfdays beginning on May 24, 1993, but stopped working completely after July 28, 1993. (Id.) During the periods of time that she was not working, Plaintiff received short-term disability benefits pursuant to the Plan. (Id.)

On September 1, 1993, Plaintiff applied for LTD benefits pursuant to the Plan, listing CFS as the reason for her disability and identifying Dr. Susan Levine, M.D., as her treating physician. (Defs.' 56.1 ¶ 13.) Dr. Levine completed forms in conjunction with the application in which she cited CFS as the reason for Plaintiff's disability. (Zimmerman Decl. ¶ 2(A), Ex. A ("Administrative Record" or "AR") at 209-10.) She noted that, in an eight-hour work day, Plaintiff could sit for one hour, but not stand or walk, and suffered from "severe fatigue." (Id.) She further noted that Plaintiff could not bend, squat, crawl, climb, or reach above shoulder level, could not carry any weight, and could not use her feet or hands for repetitive movements. (Id. at 210.)

On October 7, 1993, Northwestern National Life ("Northwestern"), Bayer's prior claims administrator, sent Plaintiff a letter informing her that her application for LTD benefits had been approved, and that the first payment would be made on October 12, 1993. (Defs.' 56.1 ¶ 15.) Plaintiff was awarded a gross monthly benefit of $1,518.40, or 60% of her pre-disability salary, subject to reduction due to the receipt of any other benefits, including social security benefits. (Id.) On October 7, Northwestern also sent a letter to Dr. Levine asking her to submit additional information on Plaintiff's condition, including her current "diagnosis, treatment, and prognosis," and whether Plaintiff was "disabled from performing any `gainful' occupation." (AR at 127.) Dr. Levine was also asked to submit Plaintiff's medical records for review. (Id.)

On October 27, 1993, Dr. Levine submitted a short letter to Northwestern, describing Plaintiff's prognosis as follows:

Ms. Lisa Fitzpatrick remains under my care for the Chronic Fatigue Syndrome (CFS) and is receiving Kutapressin 1 cc daily (an antiviral); Restoril 30 mg at bedtime; and gammaglobulin 3 cc's weekly. Her prognosis is poor. She is unable to stand up; sit up; lift or carry packages; climb stairs; interact with others; speak on the phone; type; or perform any of the duties of her present or any other occupation. She suffers from extreme exhaustion; muscle weakness; and cogn i t i v e abnormalities due to the CFS. I expect her disability to last an indeterminate period of time of at least 18 months to 2 years.

(Id. at 135).

After Plaintiff's application for LTD benefits was granted, Dr. Levine submitted two letters in 1994 in support of Plaintiff's claim in response to requests from Northwestern.*fn4 Thereafter, Bayer's claims administrator periodically contacted Plaintiff to request updated medical information, which Plaintiff submitted in the form of either an Attending Physician Statement of Disability or Proof of Continuance form, at least through September, 1999. (Defs.' 56.1 ¶ 18; see, e.g., AR at 198, 213-22.)

C. Kemper's Review of Plaintiff's Claim

In May of 2001, Kemper, which had taken over as Bayer's claims administrator, discovered that Plaintiff's file contained "no current medical data" and that a "full update" was needed. (AR at 230.) Subsequently, on or about May 21, 2001, Kemper sent a letter to Plaintiff requesting that she complete an LTD Questionnaire and Physician Update Form. (Id. ¶ 19; see also AR at 251.)

On June 1, 2001, Plaintiff submitted those forms. (AR at 252-58.) In the questionnaire, Plaintiff listed CFS as well as an "immune deficiency" as the medical conditions disabling her from work. (Id. at 252.) Plaintiff indicated that she was on various medications and that she was visiting Dr. Levine every three weeks for check-ups and "intravenously provided minerals, vitamins, etc. whatever I am lacking." (Id.) In describing her daily activities, she wrote "drawing" "when my hands allow me to and concentration is with me." (Id.) She also wrote that she was able to read; dress and engage in routine hygiene without assistance most of the time; cook, do laundry, sweep and vacuum, garden, dust, and mop "when I can;" make beds "sometimes;" climb stairs when she has to; and walk, drive and watch TV "rarely." (Id.) When asked to describe how her activities were restricted, she wrote "my confusion, or lack of concentration enables me to perform simple tasks routinely" and that "limbs, muscles, coordination, strength weaken whenever it wants, stopping me from starting and/or completing something I've started" though her condition was "never consistent." (Id.) Finally, Plaintiff stated that her husband and children provided assistance to her "whenever my energy level gives out" which was "daily," and she noted that at least once every twenty-four hours her family had to assist her, although this was "never consistent." (Id. at 255.)

On July 30, 2001, Kemper sent a letter to Dr. Levine indicating that the Plaintiff's claim for LTD benefits was under review and requesting that Dr. Levine promptly complete and submit a Physician's Statement, an Estimated Functional Capacities form, and submit copies of notes, reports, and diagnostic test results for the Plaintiff. (Id. at 259.) On September 26, 2001, Kemper sent a letter to Plaintiff indicating that they had not yet received the requested information from Dr. Levine, and reminding Plaintiff that "[i]t is ultimately your responsibility to provide ongoing proof of disability." (Id. at 260.)

On or about September 27, 2001, Dr. Levine completed the forms and submitted the medical records to Kemper. (Id. at 269- 93.) In the Physician's Statement, Dr. Levine wrote that Plaintiff was suffering from CFS and fibromyalgia, characterized by "severe exhaustion; muscle and joint aches; sleep disturbances; cognitive problems." (Id. at 269.) She described the Plaintiff as homebound. (Id. at 270.) In the Estimated Capacities Evaluation, Dr. Levine indicated that the Plaintiff could sit for one hour each day, and stand or walk for only thirty minutes every day. (Id.) She also indicated that Plaintiff could perform only a few of the listed tasks on the Estimated Capacities Evaluation, and only occasionally at that. (Id. at 271-72.) Finally, Dr. Levine submitted Plaintiff's medical records, which indicated that she had made regular visits to Dr. Levine. (Id. at 273-93.)

Based on the response from Dr. Levine, Kemper enlisted Dr. Russell Superfine, M.D., a physician board-certified in internal medicine, to review the file. (Defs.' 56.1 ¶ 21.) In November of 2001, Dr. Superfine completed that review, determining that the information provided by the Plaintiff failed to support a finding of total disability. (AR at 296-99.) Specifically, after reviewing the Plaintiff's entire record, Dr. Superfine wrote:

In summary, although the claimant has many subjective complaints as noted above, there are insufficient objective findings of functional impairment to preclude the claimant from performing the duties of any occupation. With respect to the claimant performing her duties as a senior secretary which would be considered between a sedentary to a light duty position, there are also no included objective findings in the included records to support disability in this position.

(Id. at 298.) Dr. Superfine noted that additional documentation could be relevant to the review of Plaintiff's claim, including "a current musculoskeletal examination, neuropsychological ...


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