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Pamela Ross v. Verizon Communications

September 27, 2011


The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge:



In this action under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §1001, et seq., plaintiff claims that defendant unlawfully denied her application for a disability pension. As a result of her employment with Verizon Communications, Inc., plaintiff participated in the Verizon Pension Plan for New York and New England Associates ("Pension Plan"), a qualifying plan under ERISA. In her amended complaint (Dkt. No. 8), she seeks judgment declaring that the denial violates ERISA and directing approval of her application and payment of retroactive benefits under the Pension Plan. Plaintiff moves (Dkt. No. 19) for summary judgment. Defendant cross-moves (Dkt. No. 24) for summary judgment. Plaintiff's claims against defendant Verizon Communications, Inc. were dismissed by stipulation (Dkt. No. 18).

As discussed below, plaintiff's motion for summary judgment is granted and defendant's

cross motion for summary judgment is denied. Defendant is directed to approve plaintiff's application and to pay retroactive benefits under the Pension Plan.


The amended complaint (Dkt. No. 8) claims as follows:

Plaintiff Pamela Ross was employed by the defendant Verizon as a Customer Service Administrator from 1989 until 2006.

Ms. Ross suffers from chronic degenerative disc disease. As a result she is unable to sit or stand when her condition is acute. Even when not acute she is advised by her doctors to avoid sitting, standing, and flexion of the back to avoid an acute pain condition. Her condition is considered permanent and progressive and she eventually was unable to perform her job or any job at her place of employment.

She was required by her employer to file for Social Security Disability which was approved in December 2006.

Following this approval, in December 2006 Ms. Ross applied for a Disability Pension Benefits from her employer pursuant to the Verizon Pension Plan for New York and New England Associates.

This application was disapproved by the defendant Verizon and Ms. Ross appealed that decision in July 2007.

By letter of October 1, 2007, the defendant Verizon advised Ms. Ross that it had denied her appeal.

The denial was without any factual basis and contrary to the evidence before it, replete with errors, and not the result of a deliberate, principled reasoning process, and constitutes an erroneous benefit determination.

The defendants acted under an inherent conflict of interest in that the decision to deny Ms. Ross' disability pension favorably impacted its financial interests.(Paragraph numbering omitted.) Plaintiff seeks judgment declaring that defendant's conduct violates ERISA and directing defendant to approve her application and pay retroactive benefits.

The requirements for a disability pension, Article 4, Section 4.3 of the Pension Plan, provide:

4.3 Disability Pension.

(a) Eligibility. A Participant shall be eligible for a Disability Pension if he or she becomes totally disabled as result of sickness or injury, other than an accidental injury arising out of and in the course of employment with a Participating Company. ***

(b) Totally Disabled. For purposes of this section, a Participant is considered to be totally disabled for any period during which, by virtue of a disability, he or she is unable to perform any job for the Company or an Affiliate which is offered to the Participant by the Participating Company for which the Participant most recently provided services.

Under the Pension Plan, the claims and appeals administrators are vested with authority to construe the terms of the Pension Plan, make factual findings, and determine benefit eligibility. The Pension Plan specifically provides in relevant part as follows:

14.4 Claims and Appeals

Under the Plan, the Claims Administrator and the Appeals Administrator are fiduciaries to whom this Plan hereby grants full discretion, with the advice of counsel, to do the following: to make findings of fact; to interpret the Plan and resolve ambiguities therein; to make factual determinations; to determine whether a claimant is eligible for benefits; to decide the amount, form, and timing of benefits; and to resolve any other matter under the Plan which is raised by the claimant or identified by the respective Claims or Appeals Administrator. The Claims Administrator has exclusive authority to decide all claims under the Plan, and the Appeals Administrator has exclusive authority to review and resolve any appeal of a denied claim. In the case of an appeal, the decision of the Appeals Administrator shall be final and binding upon all parties to the full extent permitted under applicable law, unless and to the extent that the claimant subsequently proves that a decision of the Appeals Administrator was an abuse of discretion[.]

The initial determination of eligibility for a disability pension under the Pension Plan is made by the Verizon Benefits Delivery Disability Processing Unit ("Disability Processing Unit"). An applicant whose claim is denied may obtain review by the Verizon Claims Review Committee ("VCRC"), the designated appeals administrator under the Pension Plan.

On September 8, 2005, plaintiff commenced a medical leave from her position as customer service representative because of low back pain. She was diagnosed with chronic degenerative disc disease and treated by chiropractors Christopher Green and Douglas Van Vorst.

On October 21, 2005, Dr. Van Vorst completed forms indicating that plaintiff could return to work on a graduated basis, beginning with four hours per day, five days a week. She returned to work, but on November 23, 2005 again went on leave because of increased low back pain. During the first 52 weeks of disability, she received benefits through a short-term disability plan that is not now in issue.

Plaintiff applied for a disability pension under the Pension Plan. Metropolitan Life Insurance Company ("MetLife"), which provides administrative services to Verizon in connection with its various employee benefit plans, obtained information and medical records from plaintiff's health care providers and forwarded them to a clinical nurse for review. The MetLife nurse concluded that the records supported "sedentary to light level of function with ability to change position every 15 minutes" with the use of a sit/stand work station which would permit her to sit, stand or walk intermittently. The nurse referred the records to MetLife's medical director for review.

MetLife also obtained an "activities check" (i.e., video surveillance) of plaintiff by an investigation company. On October 10, 2006, the company sent MetLife a surveillance video and a report summarizing the results of the surveillance of plaintiff on September 26, 27, 28, 29 and 30, 2006. MetLife takes the position that plaintiff's activities are inconsistent with her claim of disabling back pain.

On review of plaintiff's medical records and the results of the video surveillance, MetLife's medical director, Dr. Desmond Ebanks, wrote a claim note dated October 10, 2006, stating that "the medical documentation and video surveillance does not support a functional impairment precluding [plaintiff] from performing the essential functions of a sedentary job with a sit/stand workstation." MetLife also obtained review by a vocational rehabilitation specialist, who reported on November 6, 2006 that plaintiff was capable of performing her customer service representative job with the use of a sit/stand work station, which would allow her to work at either a standing height or a seated height at will with only the push of a button.

Plaintiff's application for Social Security disability benefits was approved on December 7, 2006. On December 29, 2006, MetLife recommended denial of plaintiff's request for a disability pension on the ground that the medical information submitted by plaintiff and her treating health care providers did not support her claim that she was totally disabled. On January 29, 2007, the Disability Processing Unit wrote to plaintiff denying her disability benefits under the Pension Plan.

Plaintiff appealed the denial to the Verizon Claims Review Committee ("VCRC"), the designated appeals administrator under the Pension Plan. As part of its review of plaintiff's appeal, the VCRC obtained a record review by Dr. Brian Morris, Verizon's medical director. Dr. Morris' report dated September 13, 2007 concluded that plaintiff did not meet the definition of disability under the Pension Plan because she was capable of performing sedentary work, and that the sit/stand work station offered to her by Verizon would assist her in performing such work.

The VCRC reviewed plaintiff's appeal at its September 27, 2007 meeting. By letter dated October 1, 2007, the VCRC upheld the denial of plaintiff's claim for a disability pension under the Pension Plan. Plaintiff commenced the instant ERISA action on October 18, 2009.


The medical evidence in the file includes the medical records of Douglas Van Vorst, DC, DACRB, a chiropractor; Christopher Green, DC, also a chiropractor; Thomas J. Lovely, MD, a neurosurgeon to whom plaintiff was referred by Dr. Van Vorst; and Robert M. Droege, MD, her primary care physician. She also underwent an IME by Louis Benton, Jr., MD, an orthopedic surgeon. Dr. Benton's report was not part of the administrative record, although Dr. Van Vorst addressed it in a letter and Dr. Morris referred to it in his report to the VCRC.

The earliest medical record is an MRI report dated April 18, 2003, stating "Clinical History: Low back pain and radiculopathy." The "Impression" includes: "Central Annular Tear at L3-L4" and "Small central disc protrusion at L4-L5."

In an examination report dated September 13, 2005 -- shortly after plaintiff began short-term disability leave on September 8, 2005 -- Dr. Green wrote:

HISTORY/CHIEF COMPLAINT: The patient is here today with a chief complaint of severe right low back pain. ... She has been seen numerous times in this office before with similar pain and has had MRI in past with disc problems at both L3/4 and L4/5, annular tear L3/4 and herniation central L4/5. She has had facet injections and ESI's in the past with minimal success and has seen spine surgeon who felt she was not a surgical candidate.

The examination reveals tenderness upon palpation severe spasm in the right lumbrosacral area decreased ROM in all planes, positive SLR left and moves to right to 30 degees with LBP, neg. stretch, negative Braggard's test, positive Kemp's test on rt. positive SI Compression test, pos Elys on right. Motor strength is breakaway secondary to pain of quad on rt. EHL and gastroc 5/5. Dermatone testing intact and symmetric. Static and motion palpation reveals loss of intersegmental mobility L 4/5/S 1. The patient filled out an Oswestry

Low Back Pain Questionnaire today and scored 82%. Pain diagram details stabbing L/S area.

DX/IMPRESSION: Lumber Disc Derangement Syndrome v. Lumbar facet syndrome.

Office notes show plaintiff made repeated visits to Drs. Green and Van Vorst for chiropractic treatment in the months following this report.

Upon Dr. Van Vorst's recommendation, plaintiff was examined by Thomas J. Lovely, MD, a neurosurgeon. In a March 16, 2006 report, Dr. Lovely stated he reviewed an MRI scan from January 2006 and noted "significant degenerative changes at what I would call L4-5 and L5-S1." He ordered a lumbar discography.

It appears from a "progress report" from "Sunnyview at Amsterdam" that, on Dr. Lovely's referral, plaintiff began physical therapy on April 11, 2006. The record copy of the report is illegible. Dr. Van Vorst wrote on December 22, 2006 that physical therapy was "no help."

The report of the lumbar discography is dated May 10, 2006. It states "Clinical Information: Right lower back and buttock pain." Under "Impression" the report states: "Abnormal discogram at L-3-L-4 and L-4-L-5. There is evidence of annular tear with contrast extravasation into the anterior epidural space. Her symptom was reproduced during injection of contrast material at both L3-L4 and L-4/L-5."

Dr. Lovely reported to Dr. Van Vorst on June 15, 2006 that he saw plaintiff "in follow-up of her chronic low back pain, which has now been going on for about three years." He noted that plaintiff "has had extensive conservative measures with injections, chiropractic treatment and is currently undergoing physical therapy with still continued significant pain in the low back." He reviewed the discogram and noted she was "positive at both the 3-4 and 4-5 levels" and had "significant internal degenerative changes." He observed that plaintiff's "gait is normal "but that she "is markedly limited with range of motion." Dr. Lovely wrote:

Ms. Ross appears to have discogenic low back pain at L3-4 and L4-5 with a sacralized L5-S1 level. Her options at this point are to do nothing, to continue with conservative measures or alternatively to consider a decompression and fusion. In layman's terms I described a posterior lumbar interbody fusion and posterolateral fusion with instrumentation at L3-4 and L4-5. I emphasized that this is a very large undertaking and should only be done as a last resort. While I believe it has a good chance of helping her in the immediate future, 10, 20 or 30 years down the road it will put increased stress and degenerative changes on the upper lumbar segments, which are not designed to take this. Therefore, this should really be only done if she is absolutely incapacitated with the pain and it is interfering with her life completely. As this has been going on for three years, and she has had aggressive conservative treatment, this certainly may be the case. We discussed the procedure as I said in layman's terms along with the potential benefits and risks (including but not limited to the risks of anesthesia, injury to the nerves with weakness or paralysis, loss of sensation, loss of bowel, bladder and sexual function or feeling, blindness, spinal fluid leak, bleeding, infection, failure to improve, increased stress at the adjacent levels, failure to fuse, etc.).... I gave her an okay to be out of work for a month. I believe by that time she needs to make a decision whether she wishes to pursue surgery or continue with conservative management.

An examination report by Dr. Van Vorst dated July 12, 2006 states:


The patient is being re-examined today. She has been attending PT per Dr. Lovely and my suggestion but this is really not helping. She has some back relief for a day or so and the pain comes back. She continues to have activity intolerance with sitting, lifting, bending, walking, prolonged standing and sleeping. VAS today is 8/10. She is contemplating surgery but Dr. Lovely has explained to her that it is very involved and in her case she has two bad discs per discogram and will need a multilevel fusion and is a smoker. She has been taken OOW by Dr. Lovely, total until 7/17/08.

The examination reveals tenderness upon palpation, spasm in the lumbosacral area, most notably on the right, severely decreased ROM in all planes, positive Kemp's test left & right, positive SLR left & right for low back pain. Motor strength 5/5/ gastroc and EHL but breakaway sec. to LBP at quads. Dermatome testing is symmetric. Static and motion palpation reveals loss of intersegmenta mobililty L 3/4/5. The patient filled out an Oswestry Low Back

Pain Questionnaire today and scored 54%. Pain diagram details ache stabbing L/S area.

DX/IMPRESSION: Lumbar Disc Derangement Syndrome w/ VSC's Ms. Ross continues to have chronic LBP sec. to bad discs at L3/4 and L4/5. She is unable to sit or stand for any length of time nor lift at all. She is very apprehensive about surgery at this time and does not really want to go forward with this. PT is really not helping. I explained that you can do all the stabilization in the world but as soon as you bend with a bad disc it sets the disc off and you have pain. At this point I am going to give her a permanent disability as she is totally disabled from her previous job as she is unable to sit or drive to get to work. I explained that this can be updated if she has surgery and is functional following this. Her prognosis is poor as her condition has not changed in 10 months. Treatment today consists of CMT, prn.

On July 20, 2006, in response to an inquiry from MetLife's disability manager requesting that he "consider an ergonomic evaluation for sit/stand workstation," Dr. Van Vorst wrote:

Restrictions: No lifting or bending to ground level, only able to sit for 15 minutes at any one time.... Unable to stand longer than 15 min. w/o sitting or lying down, no lifting over 5 lb. from waist level. Permanent restriction. To be updated if she has surgery. So, unable to return to full duty.

In an office note dated September 15, 2006, plaintiff's primary care physician Dr. Droege observed that Dr. Van Vorst recommended no prolonged sitting, lifting or standing, and that Dr. Van Vorst "feels she is permanently disabled from her current job and from what she is telling me, it sure sounds like she is." Dr. Droege stated: "She has a note from Dr. Lovely who recommended consideration for surgery but he did not feel strongly it would help her. She does not want surgery." Dr. Droege further stated: "Chronic back pain with history of bulging L4-5 with no hard physical findings, very likely permanently disabled from her current job since she has been out now for over a year with pain worsening over 3 years." He added: "Suggested continued chronic pain med use, not any evidence of overuse or abuse of her narcotics.... I also recommended trial of amitriptyline 10-30 mg at night to see if augments the Lortab and may actually help her use less."

A November 3, 2006 memo from Dr. Van Vorst states:

To Whom It May Concern.

Ms. Ross has discogenic back pain. This was confirmed with a discogram. She is a candidate for surgical fusion per neurosurgeon but this is a big undertaking and serious surgery which may or may not be successful.

Apparently there continues to be some question whether she can work or not. She is unable to sit, stand or walk[] for any significant period. She is unable to do any activity which involves any repetitive bending or sitting. A detailed description of a work to stand work station was explained to me. She is unable to use a work to stand work station as this involves repetitive bending, standing.

As I have said in the past, a functional capacity test would be the best assessment tool to determine her capabilities to work and will help quantify this. Until then, I don't feel she can work in any significant capacity.

The November 21, 2006 office notes of Dr. Droege state: "She has been continuing to have pain although it is nicely controlled with her Lortab 2-3 times daily. Amitriptyline has helped significantly allowing her to sleep significantly. Very satisfied with her current treatment program." He writes: "chronic low back pain with history of bulging discs, candidate for surgery but trying to hold off on ...

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