Smith v. Fortis Benefits CV-02-055-B 03/06/03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

William Smith

v. Civil No. 02-055-B Opinion No.

Fortis Benefits Insurance Company

MEMORANDUM AND ORDER

William Smith brings this action pursuant to the Employee

Retirement Income Security Act ("ERISA"),

(a)(1)

(B) (1999), to recover benefits he alleges are due to him under

the terms of a long-term disability plan insured and administered

by Fortis Benefits Insurance Company ("Fortis") . Smith alleges

that Fortis' decision to deny him benefits was arbitrary and

capricious. Fortis moves for summary judgment arguing that

substantial evidence in the administrative record supports it's

decision to deny Smith benefits and therefore it's decision was

not arbitrary and capricious. (Doc. No. 7). Smith argues in

response that Fortis improperly categorized his position as light

work when in fact it was medium work. He further argues that Fortis: improperly disregarded his treating physician's opinions;

failed to consider non-exertional stress produced by his

position; and gave insufficient weight to the Social Security

Administration's decision granting him disability insurance

benefits. For the reasons that follow, I grant Fortis' motion

for summary judgment.

I. BACKGROUND

William Smith worked in the electronic semiconductor

industry for over thirty years. In the fall of 1998, Smith began

working for New England Semiconductor ("NFS") as a project/test

electronics engineer. As an NFS employee. Smith participated in

NES's long-term disability benefits plan (the "Plan"). Fortis

was the Plan's insurer and administrator at all relevant times.

Smith remained employed with NES until November 2, 1999, when

Smith's position was eliminated as part of a pre-planned lay-off.

A. The Plan

The Plan defines "disability" to mean that "in a particular

month, you satisfy either the Occupation Test or the Earnings

Test...You may satisfy both the Occupation Test and the Earnings Test, but you need only satisfy one Test to be considered

disabled." To satisfy the Occupation Test, "during the first 24

months of a period of disability (including the gualifying

period), an injury, or sickness, or pregnancy reguires that you

be under the regular care and attendance of a doctor, and

prevents you from performing at least one of the material duties

of your regular occupation." After 24 months of disability, the

Occupation Test reguires that "an injury, sickness or pregnancy

prevent you from performing at least one of the material duties

of each gainful occupation for which your education, training,

and experience gualifies you." The Plan defines material duties

to mean "the set of tasks or skills reguired generally by

employers engaged in a particular occupation." A "period of

disability" as used in the Occupation Test is defined as "the

time that begins on the day you become disabled and ends on the

day before you return to active work."

A claimant will be considered disabled under the Earnings

Test if, "in any month in which you are actually working, if an

injury, sickness, or pregnancy, past or present, prevents you

from earning more than 80% of your monthly pay in that month in any occupation for which your education, training and experience

qualifies you."

The Plan also states that: "[Fortis] has the sole

discretionary authority to determine eligibility for

participation or benefits and to interpret the terms of the

Policy. All determinations and interpretations made by us are

conclusive and binging on all parties."

The Plan provides that "a covered person who leaves the

group covered under [the Plan]" will remain insured as follows:

"if a plant closes down or partly closes down, the person will

remain insured for 90 days after that; and for any other reason,

the person will remain insured for 31 days after that. However,

coverage will end if the person becomes entitled to similar

benefits from another source."

B. The Claim

_____ In 1996, Smith suffered a heart attack and underwent

coronary bypass surgery. Smith participated in cardiac

rehabilitation after his surgery and returned to work. In

October 1999, Smith visited his cardiologist. Dr. Mary-Claire

Paicopolis, complaining of fatigue and shortness of breath. Smith then underwent a sestamibi stress test on October 27, 1999.

The stress test indicated normal hemodynamic response to exercise

and no chest pressure when exercising. Dr. Paicopolis opined

that the changes on the electrocardiogram during the stress test

were consistent with ischemia. She further indicated that

although Smith was able to exercise for 8 minutes 59 seconds, the

study was limited by shortness of breath and fatigue.

Smith had a follow-up appointment with Dr. Paicopolis on

November 15, 1999. Dr. Paicopolis noted that although Smith had

not had any chest or arm discomfort, he had had some tingling

down his left arm and agreed to undergo a left heart

catherization.

Two days later. Smith underwent the left heart catherization

and Dr. Paicopolis noted the left main trunk was without

significant disease. She did, however, note that the

catherization showed significant graft occlusion. At follow-up

visits with Dr. Paicopolis, Smith stated he did not want to

undergo surgery, but that he was willing to try medical therapy.

Although Smith does not have any chest or arm discomfort, he

stated that he is guite fatigued and has shortness of breath when he does any kind of work. Dr. Paicopolis opined that Smith

cannot work in his current job.

Smith filed for long term disability benefits in December

1999. On his application. Smith stated that his position as an

electronics test engineer reguired him to lift 25 to 100 pounds

freguently, carry up to 25 pounds freguently, and carry up to 50

pounds occasionally. Smith further indicated that his position

reguired him to supervise 8 to 15 people, exposed him to marked

changes in temperature and humidity or extremes thereof, and

exposed him to dust, fumes, gases or chemicals.

Dr. Paicopolis completed the attending physician portion of

Smith's application. In it she opined that Smith had a class 4

physical impairment rendering him capable of only sedentary,

clerical or administrative work. She further opined that Smith's

cardiac functional capacity placed him in class 3 or "marked

limitation."

On March 14, 2000, Fortis denied Smith's application for

disability benefits finding Smith's medical limitations did not

prevent him from performing any of the material duties of his

position. Smith, after retaining counsel, appealed the denial and attached a letter dated April 6, 2000 from Dr. Paicopolis.

In this letter. Dr. Paicopolis stated that "from a cardiovascular

standpoint [Smith] is a Class II [slight limitation] to III

[marked limitation]" and as such she opined that Smith is

"disabled from a cardiovascular standpoint to do any significant

exertional work." She added that it was her clinical opinion

that Smith cannot work.

On May 10, 2000, NES's human resource manager sent a letter

to Fortis denying that Smith supervised 15 employees. In

addition, the human resource manager attached an email from

Smith's former supervisor detailing his duties. The email lists

Smith's primary duties as setting up and analyzing the results of

tests and ensuring the accuracy of test eguipment.

Fortis denied Smith's appeal on June 14, 2000. Fortis

acknowledged that Smith should not engage in heavy physical

labor, but noted that Smith was capable of low levels of exercise

or working in a sedentary or light work occupation. Fortis cited

Dr. Paicopolis' April 6, 2000 letter indicating Smith was

precluded from "significant exertional work." Fortis also relied

on the Dictionary of Occupational Titles ("DOT"), published by the Department of Labor. The DOT classifies Smith's occupation,

an electrical test engineer, as a light duty job. Furthermore,

Fortis cited to information provided by NES concurring with the

DOT's light duty indication and contradicting the information

provided by Smith in his initial application for benefits.

Specifically, Fortis stated that NES indicated the following

discrepancies: most of the parts that Smith was reguired to lift

weighed less than 20 pounds; he did not have to carry items as

carts are provided; he worked in a 70-degree climate controlled

environment; he was not exposed to chemicals due to the

controlled environment; and he did not supervise other employees.

Fortis also explained in a letter dated July 14, 2000, that

Smith's policy insures his occupation, not his specific job and

the material duties noted in the Occupation Test provision of the

policy refers to the set of tasks or skills reguired generally by

employers from those engaged in a particular occupation.

In July 2000, Smith appealed Fortis' decision to affirm its

denial of disability benefits. Smith included in his appeal a

notice from the Social Security Administration ("SSA") granting

him disability insurance benefits ("DIB") and argued that the SSA's "independent and neutral evaluation" of Smith's condition

is strong evidence that Fortis' denial of benefits is

unreasonable.

Smith's appeal was submitted to Fortis' Appeals Committee

which included Dr. Craig Heligman. Dr. Heligman contacted Dr.

Paicopolis to investigate Smith's appeal. In a memorandum

detailing his conversation with Dr. Paicopolis, Dr. Heligman

noted that Dr. Paicopolis assumed Smith was a manager. Dr.

Heligman discussed how the results of the stress test

demonstrated that Smith's sustainable work capacity matched his

work demands. Dr. Heligman further noted that Dr. Paicopolis

would not release Smith to work unless Smith stated that he was

asymptomatic on the job. Nevertheless, Dr. Heligman ultimately

decided that even though he agreed that Smith would benefit from

surgical intervention. Dr. Paicopolis had overstated Smith's

level of disability.

In investigating Smith's final appeal, Fortis asked NES to

complete a form indicating what Smith's actual duties were as

compared to the description of his duties that he provided in his

initial application. A representative from NES identified multiple areas in which the company disagreed with Smith's

description of his duties at NES. NES again disagreed that Smith

supervised other employees. NES informed Fortis that Smith had

been offered a position which would have included supervisory

responsibilities, but that he had turned it down. In addition,

NES reiterated that Smith was seldom, if at all, exposed to

chemicals or temperature changes. Furthermore, NES denied that

lifting eguipment up to 100 pounds was ever a job reguirement for

Smith because Fortis has an eguipment department that handles the

moving of eguipment.

Fortis denied Smith's final administrative appeal in

September 2000. Once again, Fortis found that Smith should not

engage in physical labor, but that he is capable of working at

the light to sedentary level, as was reguired of him in his job

with NES. Smith then instituted this proceeding in federal

court.

II. STANDARD OF REVIEW

Because the Plan reserves to Fortis the discretion to

determine eligibility for benefits and to interpret the terms of

the Plan, my review of Fortis' denial of benefits is limited to

the "deferential arbitrary and capricious standard."1 Cook v.

1 I note that the First Circuit has used "arbitrary and capricious" "abuse of discretion" and or "unreasonable" interchangeably. See Leahy v. Raytheon Co . ,

, 15 n. 3 (1st C i r . 2 0 02). Liberty Life Assurance Co. of Boston,

(1st

Cir. Feb. 5, 2003) (quoting Pari-Fasano v. ITT Hartford Life and

Accident Ins. Co.,

(1st Cir. 2000)). Under

this standard, I must uphold Fortis' decision "if it was within

[Fortis'] authority, reasoned, and supported by substantial

evidence in the record." Dovle v. Paul Revere Life Ins. Co . ,

(1st Cir. 1998). A decision is supported by

substantial evidence in the record when there is evidence

"reasonably sufficient" to support a conclusion. Moreover,

sufficiency "does not disappear merely by reason of contradictory

evidence." Id.; see Vlass v. Raytheon Employee Disability Trust,

244 F .3d 27, 30 (1st Cir. 2001).

The Parties do not contest that the language of the Plan

reserves discretion to Fortis. Nevertheless, Smith argues that

Fortis was improperly motivated by a conflict of interest and

therefore I must apply a heightened standard of review.

Specifically, Smith argues that Fortis has an inherent conflict

of interest evidenced by its "wrong and unreasonable" decision

and "overwhelmingly insufficient" record. Smith further argues

that a conflict of interest standard should be applied because

Dr. Heligman, the only physician to review his claims for Fortis,

failed to adequately consider Dr. Paicopolis' opinions.

In it's recent decision in Leahy v. Raytheon Co . ,

(1st Cir. 2002), the First Circuit reiterated that "to

affect a standard of review, the conflict of interest must be real." "A chimerical, imagined, or conjectural conflict will not

strip the fiduciary's determination of the deference that

otherwise would be due." I d . (citations omitted). As in Leahy,

the alleged conflict of interest Smith alludes to "does not meet

this screen."

Smith's arguments do not point to a single

conflict of interest other than that which always exists when an

insurer determines an insured's eligibility for benefits. The

fact that Dr. Heligman was the only physician to have reviewed

Smith's claim does not establish that Fortis was operating under

a conflict of interest or an improper motivation. See Dovle,

(An example of a conflict of interest is when a

policy manager has a personal interest contrary to the beneficiary's.)- If anything. Smith's arguments are relevant to

whether or not Fortis' decision was arbitrary and capricious, but

they do not persuade me to alter the degree of deference that is

due to Fortis under Firestone Tire & Rubber v. Bruch,

(1989) .

As such, I apply the arbitrary and capricious standard to

Fortis' decision and consider only the evidence that was before

Fortis at the time of it's decision. See Dovle,

.

III. DISCUSSION

Fortis argues that summary judgment should be granted in its

favor because it's decision is supported by substantial evidence

in the record. Smith, on the other hand, argues that Fortis'

decision to deny him benefits was arbitrary and capricious.

First, Smith argues that his position with NES as an electronics

test engineer was incorrectly classified as light duty when in

fact it was medium duty work. Second, Smith contends that Fortis

did not adeguately consider the non-exertional stress produced by

his reguired duties at NES. Third, Smith alleges that Fortis failed to consider the SSA's determination that Smith was

eligible for disability insurance benefits. Lastly, Smith

challenges Dr. Heligman's medical opinions because they are

inconsistent with the opinion of Smith's treating physician. Dr.

Paicopolis.

A. Job Description

In denying his application for benefits, Fortis classified

Smith's occupation as light duty work. Smith argues that the job

description he provided in his initial application, along with

the information provided by NES, reguires a medium duty work

classification. Smith argues that this is crucial to Fortis'

denial because Dr. Heligman opined that Smith was capable of only

light to sedentary work. If Smith's position in fact gualified

as light work. Smith argues, even Dr. Heligman would find him

incapable of fulfilling the duties of his job.

Fortis' classification of Smith's job as light work is

supported by substantial evidence in the record. First, the DOT

classified Smith's occupation as light work. In addition, Fortis

clearly informed Smith that it insures only his occupation and

not his specific job with NES. The "material duties" test is therefore analyzed from the perspective of whether Smith is

capable of performing the material duties of his occupation in

general, not any additional demands that NES may place on him.

In any event, NES, on multiple occasions, denied that Smith was

reguired to lift or carry significant weights. For example, NES

informed Fortis that Smith was not reguired to lift or carry

eguipment because NES has an entire department devoted to moving

eguipment and carts were available if Smith chose to move

eguipment on his own. In addition, most of the eguipment that

Smith may have carried voluntarily weighed under 20 pounds. It

therefore was not unreasonable for Fortis to classify Smith's

position with NES as light duty.

Furthermore, NES informed Fortis that Smith had inaccurately

stated in his application that he worked in varying temperatures

and was exposed to chemicals. As such, Fortis' decision to

discredit Smith's own description of his duties in his initial

application and to credit NFS' description is supported by

substantial evidence.

B. Non-exertional Considerations

_____ Smith argues that Fortis did not consider or analyze the

non-exertional stress levels associated with Smith's duties at

NES. In its investigation of Smith's application, Fortis

contacted NES multiple times concerning his supervisory

responsibilities. NES responded, multiple times, stating that

Smith did not supervise other employees in any manner other in "equipment/technology." In fact, NES informed Fortis that Smith

had been offered a position in which he would have had

supervisory responsibilities, but he turned it down. Further,

Fortis considered the possible stress Smith would be exposed to

in his supervisory role, but after conferring with NES and

finding that Smith did not actually supervise other NES employees

except in some vague equipment/technology role, it found him

capable of fulfilling all material duties of his position.

Fortis did not act arbitrarily or capriciously in making this

determination.

C. Dr. Heligman's Medical Opinion

Smith argues that Dr. Heligman's disagreement with Dr.

Paicopolis' opinion that Smith was unable to work as an

electrical test engineer was arbitrary and capricious. Fortis,

as a plan administrator, was not required to give controlling weight to a treating physician's opinions. See Chandler v.

Raytheon Employees Disability Trust,

(D. Mass

1999) aff'd

(1st Cir. 2000); see also Sheppard &

Enoch Pratt Hosp., Inc. v. Travelers Ins. Co . ,

(4th Cir. 1994). It is Fortis' responsibility as the plan

administrator to weigh conflicting evidence and make an informed

determination regarding disability. See Vlass, 244 F.3d at 32.

Notwithstanding Smith's assertion to the contrary. Doe v .

Travelers Ins. C o ,

(1st Cir. 1999) does not

reguire otherwise. In Doe, the First Circuit afforded "special

weight" to treating experts' diagnosis of suicidal tendencies

because, unlike Smith's condition, "[i]t is much harder to

calibrate risks [of suicide] than to diagnose conditions" such as

coronary heart disease, which can largely be reduced to medical

test results. Doe,

; see Garcia v. Raytheon

Employees Disability Trust,

(D.N.H. 2000).

D. SSA Determination

Smith argues that Fortis' decision was unreasonable because

Fortis should have placed more weight on the SSA's determination

that Smith was totally disabled and therefore entitled to disability insurance benefits. Fortis, correctly, argues that

the SSA's determination is not binding on a private plan

administrator's determination of eligibility for disability

benefits. See Chandler,

(citing Dovle,

n. 4). Although SSA determinations may be relevant

evidence for plan administrators to consider in making their

independent determination, they need not be given controlling

weight.

Furthermore, Smith provided Fortis only with the

SSA notice that it had granted Smith benefits. Fortis did not,

therefore, know the basis for the SSA determination. This is

especially relevant since Fortis believed the job description

Smith provided it with was exaggerated and that Smith may well

have provided the same exaggerated job description to the SSA

when it made its determination.

IV. CONCLUSION

After reviewing the administrative record, Fortis' decision

denying Smith disability benefits was supported by substantial

evidence that was "reasonably sufficient to support [its]

decision." Vlass, 244 F.3d at 30. As such, I grant Fortis'

motion for summary judgment (Doc. No. 7) and decline to issue

benefits as per Smith's reguest in his objection (Doc. No. 9) .

The clerk of court shall enter judgment and close the case.

SO ORDERED. Paul Barbadoro Chief Judge

March 3, 2003

cc: James LaFrance, Esq. Kevin C. Devine, Esq. Joshua Bachrach, Esq.