Martinello v. Met. P&C Ins. Servs. CV-96-092-JD 03/04/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christine Martinello

v. Civil No. 96-92-JD

Metropolitan P&C Insurance Services, Inc., et al.

O R D E R

The plaintiff, Christine Martinello, brought this action

pursuant to Section 5 0 2 (a) of the Employee Retirement Income

Security Act of 1974 ("ERISA"),

(a), against the

defendants. Metropolitan P&C Insurance Services, Inc. ("Met P&C")

and Metropolitan Life Insurance Company ("MetLife"). She

contests the denial by MetLife of disability benefits to which

she claims she is entitled as part of a benefit plan offered by

Met P&C, her former employer. Before the court are the

defendants' motion for summary judgment (document no. 19) and the

defendants' motion to strike extrinsic evidence submitted by the

plaintiff in opposition to the motion for summary judgment

(document no. 24).

Background1

In December 1990, the plaintiff began work as a senior

1The court relates all material facts in genuine dispute in the light most favorable to the plaintiff, the party resisting summary judgment. See Sanchez v. Alvarado,

, 225 n.l (1st C i r . 1996). claims representative for Met P&C. As an employee, she

participated in a benefits program called "Metlife Options Plus,"

for which MetLife is the claims fiduciary. The program entitled

her to receive temporary disability payments for twenty six weeks

if she was "fully disabled."2 Under the summary plan description

("SPD")3 the plaintiff would be "fully disabled" if she was

"unable, as determined by [MetLife], due to an illness or injury,

to perform any and every duty of [her] regular job." Defs.' Mot.

for Summ. J., Ex. A, A p p . at 15.

In 1994, the plaintiff began todevelop symptoms eventually

diagnosed by her treating physicians as chronic fatigue syndrome

("CFS").4 The plaintiff's treatment history near the onset of

her alleged disability includes several visits to different

physicians. The plaintiff saw Dr. Michael J.P. Lannon, her

primary physician, on March 3, March 20, March 29, March 31,

April 3, and April 10, 1995. She saw Dr. James E. Snyder, an

otolaryngologist, on March 28 and April 3, 1995. The plaintiff

21he program also entitled the plaintiff to receive permanent disability payments if she was "totally disabled" after the initial six month period.

31he court relies on the SPDbecause the full plan has not been submitted.

41he court uses the term "CFS" to refer to the disorder also known as chronic fatigue and immune dysfunction syndrome ("CFIDS"), despite the fact that the plaintiff's recent filings refer to CFIDS, because her initial application for disability benefits was made and denied under the rubric of CFS.

2 saw Dr. Keith D. Jorgensen, another otolaryngologist, on April

11, May 4, May 16, and June 2, 1995. The plaintiff saw Dr. David

J. Itkin, a specialist in CFS, on June 8 and June 22, 1995. The

plaintiff saw Dr. Ronald Kulich, a clinical psychologist with

experience in diagnosing and treating CFS, on July 25, July 26,

and August 30, 1995. The plaintiff considers Dr. Itkin to be her

primary treating physician with respect to CFS.

The plaintiff suffers from a number of symptoms, including

sleep disturbance, profound fatigue, chronic headaches, tinnitus,

sinus congestion, muscle and joint pain, memory loss, sore

throat, irritable bowels, night sweats, irregular menses, and

anxiety. Her early diagnoses, however, did not include CFS. Dr.

Lannon, for example, noted on an early visit that the plaintiff

had post nasal drip, suspected that she might have sinusitis, and

observed that her symptoms seemed "anxiety based."

Dr. Itkin's notes from June 8, 1995, indicate, in addition

to the plaintiff's other symptoms and diagnoses, the following:

"It is not possible to give this patient a diagnosis of chronic

fatigue syndrome. . . . Even if the patient does have a variant

of CFS, which is difficult to exclude at the present time,

psychologic factors [are] likely playing a major role in her

symptom complex."

Ex. B, App. at 150. On June 22, 1995,

his notes state: "The patient may have some variant of chronic

fatigue syndrome, though it is difficult to make a clean

3 diagnosis of this, especially since anxiety and self admitted

depression are also active."

Ex. B, App. at 151. In an

August 24, 1995, letter. Dr. Itkin reported that the plaintiff

"has been given a diagnosis of chronic fatigue syndrome."

Ex. B, App. at 160. Dr. Kulich's notes from August 30, 1995,

indicated diagnoses of CFS and anxiety disorder. See

Ex. B,

App. at 158.

On June 8, 1995, the plaintiff applied for disability

benefits, stating that she had last worked on June 5, 1995, and

expected to return to work on July 10, 1995. She began receiving

temporary disability benefits. However, because her symptoms

continued, the plaintiff did not return to work as she had

initially anticipated.

On August 14, 1995, Dr. Robert D. Petrie, an independent

consulting physician and specialist in occupational medicine,

performed a record review of the plaintiff's case at MetLife's

reguest. Dr. Petrie reviewed all of the plaintiff's medical

records submitted to and obtained by MetLife up to that point.

Under the job description section. Dr. Petrie indicated that the

plaintiff "was employed as a Senior Claims Reviewer . . . . No

educational background or formal job description were provided."

Ex. B, App. at 207. He concluded that there was

"insufficient documentation in the file to show that this

claimant is disabled from her previous occupation as a senior

4 claims representative, due to the diagnoses of chronic fatigue

syndrome, anxiety disorder, or somatization disorder."

Ex.

B, App. at 207. He based his opinion on Dr. Itkin's failure to

establish the reguirements of the case definition of chronic

fatigue syndrome outlined by the Center for Disease Control, as

evidenced by the following: (1) because the plaintiff had only

been out of work for approximately two months. Dr. Petrie

reasoned that her level of functioning had not been reduced to

below fifty percent of her premorbid activity level for at least

six months; and (2) Dr. Itkin had not properly excluded other

diagnoses, such as chronic psychiatric disease.

On August 17, 1995, MetLife determined, on the basis of Dr.

Petrie's opinion, that the plaintiff was not disabled within the

meaning of the benefits policy and thus was not entitled to

disability payments. On October 12, 1995, the plaintiff, through

counsel, reguested that MetLife reconsider its decision to deny

disability benefits. The plaintiff enclosed records from visits

to Dr. Kulich and an August 24, 1995, letter from Dr. Itkin in

support of her reguest. MetLife again consulted Dr. Petrie, who

concluded that the new material presented nothing that would

change his prior opinion that the plaintiff did not warrant a

diagnosis of CFS. See

App. at 215-17. Dr. Petrie

concluded:

I would suggest that more thorough psychiatric

5 documentation be provided as has been suggested by the attending physician. In the meantime, there remains insufficient documentation to establish a diagnosis of chronic fatigue syndrome, or any impairment related to that particular disorder. There is also insufficient documentation to show that the claimant is disabled due to a psychiatric disorder.

App. at 217. MetLife did not change its opinion that the

plaintiff did not gualify for benefits.

Discussion

The plaintiff initially brought this action, alleging that

the denial of benefits was improper, in New Hampshire state

court. On February 16, 1996, the defendants removed the case to

federal court. Subseguently, they filed a motion for summary

judgment alleging that the plaintiff has not proffered evidence

from which a reasonable fact finder could conclude that MetLife

acted arbitrarily and capriciously by denying benefits and that

Met P&C is not a proper defendant in this action. In opposition

to the motion for summary judgment, the plaintiff filed documents

which the defendants allege were not before MetLife when it made

its benefits determination. The defendants filed a motion to

strike this evidence. The court considers the defendants' motion

for summary judgment and motion to strike evidence seriatim.

I. Evidence of Arbitrariness or Caprice

The role of summary judgment is "to pierce the boilerplate

6 of the pleadings and assay the parties' proof in order to

determine whether trial is actually required." Snow v.

Harnischfeger Corp.,

(1st Cir. 1993) (quoting

Wynne v. Tufts Univ. Sch. of Medicine,

(1st

Cir. 1992)). The court may only grant a motion for summary

judgment where the "pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving [parties are] entitled to a

judgment as a matter of law." Fed. R. Civ. P. 56(c). The

parties seeking summary judgment bear the initial burden of

establishing the lack of a genuine issue of material fact. See

Celotex Corp. v. Catrett,

(1986); Quintero de

Quintero v. Aponte-Rogue,

(1st Cir. 1992).

The court must view the entire record in the light most favorable

to the plaintiff, "'indulging all reasonable inferences in that

party's favor.'" Mesnick v. General Elec. Co . ,

(1st Cir. 1991) (quoting Griqqs-Rvan v. Smith,

(1st Cir. 1990)). However, once the defendants have submitted a

properly supported motion for summary judgment, the plaintiff

"may not rest upon mere allegation or denials of [her] pleading,

but must set forth specific facts showing that there is a genuine

issue for trial." Anderson v. Liberty Lobby, Inc.,

(1986) (citing Fed. R. Civ. P. 56(e)).

7 When a denial of ERISA plan benefits is challenged under

(a), the denial "is to be reviewed under a de novo

standard unless the benefit plan gives the administrator or

fiduciary discretionary authority to determine eligibility for

benefits or to construe the terms of the plan." Firestone Tire &

Rubber Co. v. Bruch,

(1989). Where an ERISA

plan grants discretionary authority to an administrator, the

court must employ a more deferential "arbitrary and capricious"

standard of review. See id.; see also, e.g., Recuoero v. New

Eng. Tel. & Tel. Co.,

(1st Cir. 1997);

Rodriquez-Abreu v. Chase Manhattan Bank,

(1st

Cir. 1993); Curtis v. Noel ,

(1st Cir. 1989).5

5When a plan fiduciary is granted discretionary authority but is subject to a conflict of interest, the reviewing court must adjust its "arbitrary and capricious" review to take into account the conflict. See Firestone,

("[I]f a benefits plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a 'factor[] in determining whether there is an abuse of discretion.'") (guoting Restatement (Second) of Trusts § 187, c m t . d (1959)); Schuyler v. Protective Life Ins. Co . , No. 92-192-M, slip op. at 9 (D.N.H. Dec. 20, 1994). The plaintiff has urged the court to adjust its standard of review because she alleges that in this case MetLife had a potential conflict of interest due to its financial stake in the outcome. See i d . (insurance company's fiduciary role to pay beneficiaries from its own assets in perpetual conflict with its profit-making role as business). The defendants have vehemently opposed such adjustment, alleging, inter alia, that there is no evidence of actual conflict. Because the court is able to resolve the motion for summary judgment within the general framework of the deferential "arbitrary and capricious" standard, however, it need not determine what adjustment, if any, is reguired in this case. When a court reviews a decision to determine whether it was

arbitrary and capricious, it does not consider whether it would

have reached a different conclusion but instead whether the

decision had a rational basis in the record. See Mitchell v.

Eastman Kodak Co.,

(3d Cir. 1997); Diaz v.

Seafarers Int'l Union,

(1st Cir. 1994).

Here the parties agree that the terms of the plan grant

MetLife discretion in determining benefits eligibility. They

differ over whether that discretion granted to the defendants by

the plan properly allowed the defendants to deny the plaintiff's

application for disability benefits based solely on the opinion

of Dr. Petrie. The plaintiff urges that Dr. Petrie's opinion is

deficient in two respects: (1) Dr. Petrie improperly eguated the

guestion of the plaintiff's disability under the plan with the

guestion of whether the plaintiff had been properly diagnosed

with CFS; and (2) Dr. Petrie could not properly have considered

whether the plaintiff met the plan's definition of disability

because he did not have before him a description of the reguire­

ments of the plaintiff's position. The defendants argue that Dr.

Petrie's opinion provides a proper basis from which they could

have concluded that the plaintiff was not entitled to disability

benefits.

The defendants assert that the plan granted MetLife

discretion sufficiently broad that it properly could have required the plaintiff to support her claim for disability by

producing evidence that she qualifies for a specific diagnosis.

The only case they cite as support for this contention, however,

is Michele v. NCR Corp., a case from the Sixth Circuit reported

in a table and not recommended for full publication. See No. 94-

3518,

(6th Cir. May 15, 1995) ("The Plan

clearly gives the Administrator the discretion to require a

diagnosis of something . . . .") .6 The Michele case involved a

plan with a different definition of disability than the one in

this case. The plan in Michele provided as follows: "Total

disability for the first twelve (12) months of long-term

disability means a bodily injury or disease that completely

prevents an Employee from performing any and every duty

pertaining to his/her occupation."

Stripped of modifying

clauses, the Michele definition provides that "disability means a

bodily injury or disease."

Given the focus of this

definition on a "disease," the requirement of a specific

diagnosis is reasonable.

The core definition of disability in this case, however.

6Ihe court notes that the Sixth Circuit disfavors the citation of opinions not designated for full publication except in certain circumstances not applicable here. See Sixth Circuit Rule 2 4 (c). Although no local rule prohibits citation of the Michele opinion, the court is reluctant to embrace authority, only persuasive at best, that was not deemed worthy of publication in its Circuit of origin.

10 focuses on functional ability rather than a diagnostic label, and

provides that the plaintiff is disabled if "unable . . . to

perform any and every duty of [her] regular job." Defs.' Mot.

for Summ. J., Ex. A, App. at 15. As the definition makes clear,

the proper inguiry is whether the plaintiff is capable of

performing the duties of her regular job. Reading into this

definition of disability a reguirement that a claimant provide

conclusive evidence that she meets the reguirements for a

specific diagnosis would have the effect of precluding some

people with profoundly disabling symptoms from receiving

benefits. Some serious disorders, such as multiple sclerosis,

"cannot be diagnosed with certainty during the life of the

patient." Hughes v. Boston M u t . Life Ins. Co . ,

(1st Cir. 1994).7 Other diagnoses cannot conclusively be made

until the symptoms have persisted for a substantial period of

time, such as the six month reduction in activity reguired for

the diagnosis of CFS. Indeed, Dr. Petrie relied on the six month

period as a reason for concluding that the plaintiff did not

gualify for a diagnosis of CFS. Because the plaintiff was

eligible for temporary disability benefits for only twenty-six

71he court notes that, in a related context, an insurance company can typically deny coverage for a medical condition under a preexisting condition exclusion if the applicant exhibited symptoms of the condition during the exclusionary period even if the applicant did not obtain a specific diagnosis during that period. See, e.g., Hughes,

.

11 weeks (approximately six months). Dr. Petrie's position,

advocated by the defendants, would allow them effectively to

refrain from ever awarding someone afflicted with the symptoms of

CFS temporary disability benefits because the individual could

not qualify for the diagnosis until after the period during which

the individual was entitled to temporary benefits had expired.

At least one other court has adopted an approach that

focuses on clinical findings rather than diagnostic labels. See

Gavlor v. John Hancock Mut. Life Ins. Co . ,

(10th Cir. 1997). As the Gavlor court noted, the plaintiff's

treating physicians

did not use a crystal ball to conclude that [the plaintiff] was disabled; their opinions were based on clinical physical examinations. The verification [of disability] requirement must be treated as evidentiary in nature. Medicine is, at best, an inexact science, and we should not disregard the great weight of the evidence merely because objective laboratory diagnostic findings either are not yet within the state of the art, or are inconclusive.

The court holds that, given the definition of disability in

this case, it would be arbitrary and capricious to deny benefits

to a claimant merely because she failed to meet the requirements

for a specific diagnosis.

This conclusion does not end the court's inquiry. Although

Dr. Petrie's opinion focuses on alleged deficiencies in the

plaintiff's diagnosis of CFS by the plaintiff's physicians, he

also states briefly that the plaintiff has not demonstrated that

12 she is unable to perform the functions of her position. Such a

conclusion, if substantiated, would provide a proper basis for

the denial of benefits. However, Dr. Petrie's cursory conclusion

on this subject is fatally undermined by his failure to consider

the plaintiff's job description. In support of her claim that

she could not perform the duties of her position as a senior

claims representative, the plaintiff submitted the medical

opinions of her treating physicians, which were based in part on

direct clinical observations. Without information about what the

plaintiff's job required of her. Dr. Petrie lacked any rational

basis for disregarding those opinions in their entirety and

concluding that the plaintiff was not disabled within the meaning

of the plan.

The court concludes that the defendants have not sustained

their burden of demonstrating the lack of a genuine issue of

material fact on the issue of whether they arbitrarily and

capriciously denied the plaintiff temporary disability benefits.

Substitution of the question of whether the plaintiff met the

requirements of a specific diagnosis for the question of whether

the plaintiff could perform the duties of her position was

improper. The defendants are not entitled to summary judgment on

this issue.8

8The defendants have also asserted that the plaintiff's claims in counts II and III are improper. Although their

13 II. Met P&C as a Defendant

Met P&C urges that, as the plaintiff's employer, it is not a

proper defendant in this action. The plaintiff's opposition

asserts only that Met P&C has not proffered sufficient evidence

to justify dismissal of the claims against it. The proper

defendant in an action to recover benefits under an ERISA plan is

the plan or plan fiduciary. See Curcio v. John Hancock Mut. Life

Ins. C o .,

, 232-34 (3d Cir. 1994); Brown v.

Continental Baking Co.,

(E.D. Pa. 1995);

Holland v. Bank of America,

(S.D. Cal.

1987). Unless the employer exercises discretion, responsibility,

or control over the administration of a plan, it is not a proper

defendant. See

(21)(A) (West Supp. 1997);

Garren v. John Hancock Mut. Life Ins. Co . ,

(11th Cir. 1997); Brown,

n.3; Holland,

.

The record in this case makes it clear that Met P&C was the

plaintiff's employer and MetLife was the plan administrator who

argument may have merit, it is set forth in a skeletal form in the midst of the defendants' argument on the lack of arbitrariness and caprice in MetLife's benefits denial. To be sure, the defendants' lack of specificity appears to be a result of the vagueness of the plaintiff's claims, on which she has not chosen to elaborate in her subseguent memoranda. Nevertheless, the court concludes that the issue has not been raised in a sufficiently detailed manner to allow the court to resolve its merits at this time.

14 made the benefits eligibility determination.9 Although there is

evidence that Met P&C was affiliated with MetLife, Met P&C has

alleged that it played a role in neither the plaintiff's benefits

eligibility determination nor the administration of the plan. It

has therefore satisfied its initial burden of demonstrating that

it is entitled to summary judgment and shifts the burden to the

plaintiff to demonstrate that dismissal of Met P&C as a defendant

is improper because it retained discretion, responsibility, or

control over the plan. The plaintiff has adduced no evidence in

support of this claim.

Therefore, the court concludes that Met P&C is not a proper

defendant in this action and grants the defendants' motion for

summary judgment as to Met P&C.

9MetLife and Met P&C are interrelated corporate entities, a fact which appears to have generated some confusion in this case. In her initial filings, the plaintiff indicates that MetLife was her employer and that Met P&C was the plan administrator. However, the defendants have provided evidence that the plaintiff was employed by Met P&C and that MetLife was the plan administrator. The plaintiff has not provided any evidence to the contrary, and at present appears to acknowledge the relationship as set forth by the defendants. See, e.g., Pl.'s Mot. for Leave to Amend Compl., 5 5 ("On December 2 6, 1997, Plaintiff received by certified mail a notice from Met Life indicating that Plaintiff was being terminated from her employment at Met P&C, an affiliate of Met Life."). To the extent the issue remains disputed, the defendants are entitled to summary judgment because the plaintiff has not demonstrated the existence of a genuine issue of material fact reguiring a trial.

15 III. Motion to Strike Extrinsic Evidence

The defendants urge that certain evidence submitted by the

plaintiff in opposition to the motion for summary judgment is not

properly before the court because it was not presented to MetLife

when it was evaluating whether the plaintiff was eligible for

benefits. The defendants have moved to strike the following

evidence: the affidavit of the plaintiff; a letter of

commendation issued to the plaintiff for her work as a senior

claims representative; material from the CFIDS Association of

America; a November 19 , 1996 , letter from Dr. Jack Danielian; a

January 20, 1997, letter from Dr. Itkin; and a January 20, 1996,

psychological evaluation summary from Dr. Kulich. The First

Circuit has not determined the extent to which information not

before a plan administrator may be considered by a court

reviewing the denial of benefits by the administrator. See

Recuoero,

("We have not decided, and need not

decide today, whether a court, when reviewing a benefits

determination, must restrict itself to the ’ 'record' as considered

by the decisionmaker who interpreted the employee benefits

plan."). Because the court has determined that the defendants

are not entitled to summary judgment on the merits of the

benefits determination and has done so without reference to the

material that the defendants have asked the court to strike, the

court need not resolve the issue at this time. Therefore, the

16 court denies the defendants' motion to strike without prejudice

to renew the objection, if appropriate, at a later stage in the

case.

Conclusion

For the reasons stated above, the court grants the

defendants' motion for summary judgment (document no. 19) as to

defendant Met P&C, ending its role as a defendant in the case,

and denies the remainder of the motion. The court also denies,

without prejudice, the defendants' motion to strike extrinsic

evidence submitted by the plaintiff in opposition to the motion

for summary judgment (document no. 24). The clerk shall schedule

a status conference to be held on March 20, 1998, at 9 a.m.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

March 4, 1998

cc: Francis X. Quinn Jr., Esguire William D. Pandolph, Esguire

17