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Durakovic v. Building Service 32 BJ Pension Fund

June 24, 2010

BEJAZE DURAKOVIC, PLAINTIFF-APPELLANT,
v.
BUILDING SERVICE 32 BJ PENSION FUND, BUILDING SERVICE 32BJ HEALTH FUND, BUILDING SERVICE 32BJ BENEFITS FUND, DEFENDANTS-APPELLEES.



SYLLABUS BY THE COURT

Plaintiff, Bejaze Durakovic, appeals from an August 4, 2009 judgment of the United States District Court for the Eastern District of New York (Block, J.), dismissing her ERISA challenge to a union disability-benefits denial. Durakovic, an office cleaner, suffered chronic pain and weakness in the years following a 1999 automobile accident, and applied for disability benefits from the relevant union funds. When her claim was denied, she filed suit in federal court pursuant to 29 U.S.C. § 1132(a)(1)(B). On cross motions for summary judgment, the district court dismissed the suit. REVERSED.

The opinion of the court was delivered by: Dennis Jacobs, Chief Judge

Argued: April 5, 2010

Before: JACOBS, Chief Judge, WINTER and WALKER, Circuit Judges.

Plaintiff, Bejaze Durakovic, appeals from an August 4, 2009 judgment of the United States District Court for the Eastern District of New York (Block, J.), dismissing her ERISA challenge to a union disability-benefits denial. Durakovic, an office cleaner, suffered chronic pain and weakness in the years following a 1999 automobile accident, and applied for disability benefits from the relevant union funds. When her claim was denied, she filed suit in federal court pursuant to 29 U.S.C. § 1132(a)(1)(B).*fn2 On cross motions for summary judgment, the district court dismissed the suit. We reverse, holding that a fund organized pursuant to 29 U.S.C. § 186(c)(5) is conflicted within the meaning of Metropolitan Life Insurance Company v. Glenn, 128 S.Ct. 2343 (2008); that the district court should have accorded the conflict in this case more weight; and that no rational trier of fact could have failed to conclude that the benefits denial was arbitrary and capricious.

BACKGROUND

Bejaze Durakovic emigrated to this country from Yugoslavia in 1971, when she was twenty-four; she never attained more than a sixth-grade education. For thirty-two years, she was an office cleaner at 55 Water Street, in New York City, and a member of the Service Employees International Union, Local 32B-J. In 1999, Durakovic was involved in an automobile accident, but continued to work, reporting chronic pain and weakness. This continued until 2003, when the pain and weakness caused her to cease work.

Durakovic filed a claim for disability benefits with her union pension, health, and benefits funds (the "Funds") in December 2003. The union disability plan provides benefits to those deemed "totally and permanently unable, as a result of bodily injury or disease, to engage in any further employment or gainful pursuit." In support of her claim, she submitted reports by two physicians, Dr. Leonard Langman, a neurologist, and Dr. Alan Dayan; and a notice of benefits award from the Social Security Administration, which had found her disabled. On receipt of her benefits application, the Funds sent her to an independent physician, Dr. Ludmilla Bronfin, who also submitted a report.

* Report of Dr. Langman. Dr. Langman concluded that Durakovic was "totally disabled" "for any occupation." He diagnosed her with cervical and lumbar radiculopathy. And he noted that she complained of pain in her neck and lower back, and that she was experiencing spasms in the cervical and lumbar regions of her spine. His diagnosis was supported by a nerve conduction report, and MRIs of her back and right knee. The nerve conduction report also evidenced mild carpal tunnel syndrome, and the MRI indicated some tearing in the menisci of her right knee.

* Report of Dr. Dayan. Dr. Dayan conducted an initial consultation and concluded that Durakovic suffered from "[r]ight knee internal derangement that has been long lasting in nature and continues to cause significant disability."

* Report of Dr. Bronfin. Dr. Bronfin concluded that Durakovic "should not be deemed totally disabled and could attempt to work in a sedentary capacity." She based her conclusion on a physical examination and on Durakovic's medical records.

She accepted the diagnoses of Durakovic's doctors. The Funds denied Durakovic's claim by letter dated March 5, 2004. They determined that Durakovic was not disabled "based on the following medical information: Dr. Ludmilla Bronfin, [the Funds'] panel neurologist, found that [she was] not totally and completely unable to work in any capacity for any occupation." The letter did not mention any of the evidence submitted by Durakovic.

Durakovic timely appealed the denial. The appeals board sent her to another independent physician, Dr. Ira Rashbaum, who submitted a report that echoed the relevant findings of Dr. Bronfin: Durakovic was "not totally disabled and could attempt to work in a sedentary capacity." Dr. Rashbaum premised his conclusion on, inter alia, a range-of-motion test of her spine and extremities, and a review of her medical records.

The appeals board denied Durakovic's appeal by letter dated December 13, 2004, based additionally on Dr. Rashbaum's report. Shortly thereafter, Durakovic commenced this action pursuant to 29 U.S.C. § 1132(a)(1)(B), challenging the Funds' decision to deny her disability benefits.

On March 20, 2007, the Funds reopened Durakovic's application in light of our decision in Demirovic v. Building Service 32 B-J Pension Fund, 467 F.3d 208 (2d Cir. 2006), which arose from a denial of benefits under the same disability plan. In Demirovic, we held that the Funds cannot deem a person able to work (and therefore not "totally disabled") simply because she is physically capable of performing some job, of whatever type; to be deemed able to work, a person must be able to work in some capacity for which she is vocationally qualified. Id. at 212-16. In the wake of Demirovic, the Funds initiated a vocational review. The administrator forwarded Durakovic's employment files and the reports of the two independent physicians to Apex Rehab Management for review and report. Durakovic also submitted a report from her own vocational rehabilitation consultant, Lynn Jonas.

* Report of Apex Rehab Management. Apex reviewed the reports of Drs. Bronfin and Rashbaum, and Durakovic's general work history. The report noted that Durakovic has "poor English language skills," and that she had worked only at unskilled jobs; but that doctors had concluded she could perform a "full range of sedentary work."

* Report of Lynn Jonas. In a report dated September 18, 2007, Lynn Jonas concluded that Durakovic was "unable to perform any work" and that "[e]ven if she was to 'attempt to work in a sedentary capacity' she would not be able to work at a competitive pace to keep any job." Jonas subjected Durakovic to tests of manual dexterity and mental acuity, intended to evaluate her ability to perform unskilled ...


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