Rossignol v . Liberty Life Assurance 09-CV-110-JD 02/09/10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mark Rossignol

v. Civil N o . 09-cv-110-JD Opinion N o .

Liberty Life Assurance Company of Boston

O R D E R

Mark Rossignol brings an Employee Retirement Income Security

Act (“ERISA”) action to recover benefits under a long-term

disability policy provided by his former employer, Wingfoot

Commercial Tire Systems, LLC (“Wingfoot”) through Liberty Mutual

Assurance Company (“Liberty”). See

(a)(1)(B).

The parties have filed their joint statement of material facts.

Both Rossignol and Liberty move for judgment on the

administrative record.

Background1

Mark Rossignol worked as a sales representative for

Wingfoot, beginning in 1985. As a Wingfoot employee, Rossignol

1 The factual background information is presented in detail in the parties’ joint statement of material facts (document n o . 12) and is summarized here. participated in its long-term group disability plan, which was

insured by and issued through Liberty. On October 1 0 , 2003,

while working, Rossignol lifted a 125-pound truck tire and felt a

pop in the left side of his low back and then pain in his back,

radiating down his leg.

Rossignol was first seen for the back injury on October 3 0 , 2003, when Dr. Ashraf Guirgues noted that Rossignol probably had

a recurrence of disc herniation, planned to obtain an MRI, and

restricted Rossignol from lifting, bending, and squatting. In

December, Guirgues noted that the MRI results showed degenerative

disc disease, scar formation, swelling at the L5 and S1 nerve

roots, but no new herniation. Dr. Guirgues did not recommend

surgery but instead suggested limited activity and exercises to

strengthen his back.

Because he continued to have back pain, Rossignol saw Dr. Sanchez in February of 2004, who also found only degenerative

changes in the lumbar spine. Dr. Sanchez completed two New

Hampshire Workers’ Compensation Medical Forms for Rossignol in

February of 2004, with a diagnosis of sacroiliac arthropathy.

Dr. Sanchez indicated that Rossignol was unable to work.

Rossignol then saw Dr. Asi Hacobian in late February of 2004, who

also completed a Workers’ Compensation Medical Form for Rossignol

in which she referred to her office notes instead of completing

2 part of the form and indicated that Rossignol was then working,

although she provided no detail about his work. Rossignol

continued to treat with Dr. Sanchez, Dr. Hacobian, and Dr.

Guirgues through 2004. In January of 2005, Rossignol was seen

by Dr. Kelly Ly and Dr. David Janfaza. Their notes document

Rossignol’s back injuries and continued pain. During 2005, Rossignol underwent several blocking procedures without long-term

beneficial effect. In August of 2005, Rossignol was awarded

Social Security disability benefits.

Dr. Albert Fullerton completed an independent medical

examination of Rossignol at Liberty’s request in March of 2006.

Dr. Fullerton reported Rossignol’s history of his back problem

and Rossignol’s belief that he could not work because of pain.

He concluded, however, that although Rossignol remained disabled

as to his former work at Wingfoot, he should be able to work as an “inside sales person” with some restrictions on his

activities. Dr. Fullerton completed a Physical Capabilities

form, which indicated that Rossignol was capable of sedentary

work.

A Labor Market Survey, completed in April of 2006,

identified several occupations that were compatible with

Rossignol’s education and physical capabilities, including work

as an inside sales representative, in automotive sales, and in

3 other sales positions. In August of 2006, a private investigator

hired by Liberty reported that Rossignol held a New Hampshire

real estate license and was employed by a real estate agency in

Portsmouth, New Hampshire, as an independent contractor.

For purposes of Rossignol’s workers’ compensation claim, Dr.

Edgar Robertson examined Rossignol and reviewed Rossignol’s medical records on November 2 2 , 2006. Dr. Robertson diagnosed

degenerative lumbar disc disease with scarring of nerve roots due

to prior surgeries. He stated that no further treatment would be

helpful. Dr. Robertson also stated: “I do not believe he will

be gainfully employed as I believe he is completely disabled from

his former occupation. He would not be able to be employed in

any type of capacity that requires continuous sitting or standing

for prolonged periods of time.” Rossignol settled his workers’

compensation claim in May of 2007. On June 1 1 , 2007, Rossignol’s counsel wrote to Wingfoot,

requesting an application for long-term disability benefits, and

Wingfoot forwarded the letter to Liberty. Wingfoot informed

Liberty that Rossignol had received workers’ compensation

benefits from October 1 3 , 2003, through August 2 0 , 2006, that he

had received partial benefits after that time, and that his

workers’ compensation claim was settled on May 2 2 , 2007. In a

letter dated June 2 5 , 2007, Liberty notified Rossignol that he

4 had failed to follow the contractual requirements for notice and

proof of his claim and asked for an explanation and other

information by August 2 , 2007. When the requested information

was not provided by the deadline, Liberty denied Rossignol’s

claim and notified Rossignol of its decision on August 1 0 , 2007.

Liberty received a letter, which is dated August 7 , 2007, from Rossignol’s counsel on August 1 7 , 2007, with a questionnaire

signed by Rossignol on August 1 , 2007, and many medical records

and other information pertaining to Rossignol’s disability claim.

Liberty then received information about Rossignol’s workers’

compensation claim. Liberty approved Rossignol’s claim for a

twenty-four month period on October 1 5 , 2007, with a date of

disability determined to be October 1 3 , 2003, and an “elimination

period” of twenty-six weeks, making him eligible to begin to

receive benefits as of April 1 2 , 2004. Benefits were to be paid until April 1 1 , 2006, for the period that Rossignol could not

return to his former work at Wingfoot.

Liberty then reviewed the records to determine whether

Rossignol was eligible to receive benefits after the end of the

twenty-four month period. To be eligible for extended benefits,

Rossignol would have to show that he was disabled from any

occupation, not just his own former work. On December 2 7 , 2007,

Liberty denied Rossignol’s claim for benefits extending after the

5 “own occupation period” because, based on Liberty’s review of the

records, after April 1 1 , 2006, Rossignol could work as a sales

representative at an outbound call center, an automotive sales

person, or an automotive leasing sales representative.

Through counsel, Rossignol appealed Liberty’s decision and

sent additional medical records, covering the period between April of 2006 to August of 2008, to support his claim. As part

of the appeal process, Liberty referred Rossignol’s file to

Milton Klein, D O , for peer review. Dr. Klein reviewed the file,

including Rossignol’s medical records, communicated with Dr.

Janfaza, and concluded that there was no clinical evidence of

impairment around April 1 1 , 2006. On August 1 9 , 2008, Liberty

upheld its decision to deny benefits after April 1 1 , 2006.

Rossignol filed an action in this court for review of Liberty’s

decision under ERISA.

Standard of Review In an ERISA case, when the benefit plan gives the administrator the discretion to determine a participant’s eligibility for benefits, the “reviewing court must uphold that decision unless it is arbitrary, capricious, or an abuse of discretion.” Cusson v . Liberty Life Assurance C o . of Boston, --- F.3d ---,

(1st Cir. Jan. 1 4 , 2010). In the

6 absence of discretionary authority, the decision is reviewed de

novo. See Richards v . Hewlett-Packard Corp., --- F.3d ---,

(1st Cir. Jan. 1 9 , 2010). The plan at issue in

this case provides: Liberty shall possess the authority, in its sole discretion, to construe the terms of this policy and to determine benefit eligibility hereunder. Liberty’s decisions regarding construction of the terms of this policy and benefit eligibility shall be conclusive and binding.

Joint Statement, ¶ 6. The same language has been construed to

convey the necessary discretion for arbitrary and capricious

review. Denmark v . Liberty Life Assurance C o . of Boston,

, 9 (1st Cir. 2009).

Rossignol nevertheless argues that other plan terms are

“unclear, conflicting and ambiguous” and contends that the court

should apply the de novo standard. As Liberty points out, the

challenged plan terms are clearly defined. In addition,

Rossignol cites no authority to support his theory that despite a

clear grant of discretionary authority in the plan, a lack of

clarity or ambiguity in other plan terms can support application

of the de novo standard. In this case, the arbitrary and

capricious standard applies.

Another issue pertaining to the standard of review requires

consideration. When a plan administrator both makes eligibility

7 determinations and pays for benefits, a structural conflict of interest exists. Met. Life Ins. C o . v . Glenn, 128 S . C t . 2343, 2348-50 (2008). A party claiming benefits who is challenging the plan administrator’s decision bears the burden of showing “that the conflict influenced [the plan administrator’s] decision.” Cusson,

, at * 8 .

Because Liberty, as the plan administrator and insurer, both makes eligibility determinations and pays benefits, a structural conflict of interest exists. Rossignol, however, did not raise the issue, much less show that the conflict influenced Liberty’s decision. Therefore, the court applies the arbitrary and capricious standard without considering the effect, if any, of the structural conflict.

Under the arbitrary and capricious standard, the court “inquire[s] into whether [the plan administrator’s] decision was reasoned and supported by substantial evidence.” Medina v . Met. Life Ins. Co.,

1 , 45 (1st Cir. 2009). “Evidence is substantial if it is reasonably sufficient to support a conclusion.” Stamp v . Met. Life Ins. Co.,

4 , 87 (1st Cir. 2008) (internal quotation marks omitted). The decision will be affirmed, therefore, “if there is any reasonable basis for it.” Medina, 588 F.3d at 45 (internal quotation marks omitted).

8 Discussion

The disability policy in this case provides long-term

disability benefits to a covered person who submits proof of

disability due to injury or sickness. “Disability,” as used in

the policy, means, for the first twenty-four month period, that the person “is unable to perform the Material Substantial Duties

of his Own Occupation.” After the twenty-four month period,

“disability” means that “the Covered Person is unable to perform,

with reasonable continuity, the Material and Substantial Duties

of Any Occupation.” “Material and Substantial Duties” are

“responsibilities that are normally required to perform the

Covered Person’s Own Occupation, or any other occupation, and

cannot be reasonably eliminated or modified.”

After granting Rossignol benefits for the twenty-four month “Own Occupation” period from April 1 2 , 2004, through April 1 1 ,

2006, Liberty determined that although Rossignol could not return

to his own occupation, he could work at another occupation and

discontinued his benefits. In its letter denying Rossignol’s

claim for long-term disability benefits, Liberty stated that

Rossignol’s restrictions and limitations were due to left L5-S1

herniation with residual S1 radiculopathy, that the medical

evidence showed he was able to perform sedentary work, that he

9 had certain listed transferable skills from his prior work, and that he could work as a sales representative, an automotive sales person, or an automotive leasing representative. Because Liberty determined that Rossignol was able to work at other occupations, it denied his application for benefits after the end of the twenty-four month “Own Occupation” period on April 1 1 , 2006. On appeal, Liberty upheld the denial of benefits, based on Dr. Klein’s peer review and the vocational assessment.

Rossignol argues that Liberty’s decision lacks a reasonable basis because medical reports that he provided agreed that he was disabled and unable to work with reasonable continuity at any occupation. He challenges Liberty’s reliance on the independent peer review report provided by Dr. Klein, and charges that Liberty’s decision does not reference any of the medical evidence in the record other than Dr. Klein’s review. Rossignol asserts that Dr. Klein’s opinions are invalid because he did not examine Rossignol and that his opinions are inconsistent with other medical evidence. Liberty defends its decision, pointing to supporting evidence in the record.2

2 Liberty refers repeatedly to Rossignol’s real estate license and to his employment at a real estate agency, which was discovered by Liberty’s private investigator. Liberty’s decision to deny benefits and its decision on appeal, however, do not mention Rossignol’s real estate license or employment. Further, Liberty fails to show that Rossignol was gainfully employed as a

10 A. Medical Evidence Opinions of treating physicians are not entitled to special deference or consideration. Richards,

, at * 7 . The insurer of an ERISA plan is not required to conduct a physical examination of a claimant for purposes of a benefits determination, and instead, a denial may be based on a review of the claimant’s medical records.

at *8 (citing Orndorf v . Paul Revere Life Ins. Co.,

(1st Cir. 2005)). When reviewing, examining, and treating physicians give differing opinions, the plan administrator has discretion to make a reasonable choice. Vlass v . Raytheon Employees Disability Trust,

7 , 32 (1st Cir. 2001). In addition, plan administrators are not required to provide an explanation as to why reliable evidence is credited despite its conflict with the opinions of treating physicians. Black & Decker Disability Plan v . Nord,

(2003).

In this case, Rossignol argues that Liberty’s decision was arbitrary because on appeal the plan administrator credited Dr. Klein’s review opinion while ignoring the opinions of his treating physicians. Liberty stated in its initial denial letter

real estate agent or that he could work with “reasonable continuity” in that capacity. Liberty’s references to the real estate job are not persuasive.

11 that it considered Rossignol’s medical records from Dr. Guirgues,

Dr. Sanchez, Dr. Janfaza, and an independent medical examination

conducted by Dr. Fullerton. Dr. Guirgues appears to have given a

an opinion early in Rossignol’s treatment that he then was “on

limited work duty” and that Rossignol was limited to lifting

twenty pounds, but Dr. Guirgues did not provide an opinion that he was disabled from all work. Dr. Sanchez stated on Workers’

Compensation forms in 2004 and 2005 that Rossignol was unable to

work. In a letter dated June 2 6 , 2006, Dr. Janfaza stated that

at Rossignol’s request he reviewed Rossignol’s treatment notes

and gave an opinion that Rossignol was disabled by pain from all

work.

Dr. Fullerton conducted an independent medical examination

of Rossignol on March 3 , 2006. He concluded that Rossignol could

not benefit from additional medical treatment, that he had a fifteen percent impairment, and that he could not return to his

previous work at Wingfoot. He also concluded, however, that

Rossignol was capable of sedentary work without restrictions on

standing, walking, or sitting, which would allow him to work as

an “inside sales person” with certain limitations on lifting,

pushing, and bending.

Dr. Robertson conducted an examination of Rossignol on

November 2 2 , 2006, for purposes of Rossignol’s workers’

12 compensation claim. Dr. Robertson also believed that Rossignol

had reached a medical endpoint. He stated: “I do not believe

[Rossignol] will be gainfully employed as I believe he is

completely disabled from his former occupation. He would not be

able to be employed in any type of capacity that requires

continuous sitting or standing for prolonged periods of time. His limitation is back pain due to severe degenerative changes in

the lumbar spine as well as scarring of nerve roots.”

Dr. Klein undertook a “peer review” of Rossignol’s records

in August of 2008 for Liberty’s claims process to determine the

extent of Rossignol’s impairment as of April 1 1 , 2006. As part

of his review, Dr. Klein discussed Rossignol’s case by telephone

with Dr. Janfaza, who told Dr. Klein that he had no opinion about

the extent of Rossignol’s impairment. Dr. Klein concluded that

self-reported back pain was the most significant limiting factor for Rossignol’s activities around April 1 1 , 2006, and that there

was no clinical evidence of impairment at that time.

Dr. Robertson’s opinion of Rossignol’s ability to work

suggests the same limitations found by Dr. Fullerton. Although

Dr. Janfaza gave an opinion in June of 2006 that Rossignol was

disabled from all work, he told Dr. Klein in August of 2008 that

he had no opinion about the extent of Rossignol’s impairment.

Dr. Klein concluded that Rossignol was not impaired as of April

13 1 1 , 2006. Despite conflicting opinions, substantial medical

evidence in the record supports Liberty’s conclusion that

Rossignol was not disabled from all work.

B. Vocational Reports

Rossignol also asserts that he offered a vocational report

that showed he was unable to work and that Liberty offered no

contrary evidence. Rossignol submitted the vocational assessment

dated April 2 , 2007, prepared by Amy E . Vercillo at the request

of Rossignol’s counsel. Vercillo relied on the opinions of Dr.

Robertson in November of 2006 and Dr. Janfaza in August of 2005

as to Rossignol’s limitations and concluded that Rossignol was

unable to sustain any employment on a regular basis.

In contrast, however, Dr. Fullerton examined Rossignol and

completed a Physical Capabilities form in March of 2006, showing

that Rossignol was capable of sedentary work without limitations

on his ability to sit, stand, or walk, so that he remained

capable of working as an inside sales representative. A Labor

Market Survey Report completed for Liberty in April of 2006,

concluded that Rossignol was capable of a number of listed jobs

in inside sales, customer service, dispatching, and sales

management. Another vocational assessment by the vocational case

manager at Liberty in December of 2007 found that Rossignol

14 retained the ability to work as a sales representative, an

automobile sales representative, or an automotive leasing sales

representative.

Therefore, contrary to Rossignol’s representation, other

vocational assessments in the record support Liberty’s decision.

C. Social Security Disability Decision

Rossignol argues that Liberty’s decision denying him

benefits is inconsistent with the Social Security

Administration’s decision granting him disability benefits.

Disability determinations made by the Social Security

Administration may be considered but are not binding on plan

administrators making determinations under ERISA. Pari-Fasano v .

ITT Hartford Life & Acc. Ins. Co.,

(1st Cir.

2000). Rossignol has not shown that the social security decision

would have particular weight in this case.

Therefore, although Liberty’s decision to deny benefits is

at odds with the social security determination, that conflict

does not show that Liberty’s decision is arbitrary or capricious.

D. Determination The ERISA record includes evidence that supports Rossignol’s claim that he was unable to do the work of any occupation as of

15 April 12, 2006. The record also includes evidence that he

retained the ability to do jobs at the sedentary level. A plan

administrator’s decision must be upheld if there is a reasonable

basis for it, even if there is also contrary evidence. Tsoulas

v. Liberty Life Assurance Co. of Boston,

(1st

Cir. 2006). Because the record provides a reasonable basis for Liberty’s decision, it is affirmed.

Conclusion

For the foregoing reasons, the plaintiff’s motion for

judgment on the administrative record (document no. 14) is

denied. The defendant’s motion for judgment on the

administrative record (document no. 15) is granted.

The plan administrator’s decision is affirmed. The clerk of

court shall enter judgment accordingly and close the case.

SO ORDERED.

__________________________ V J Joseph A. DiClerico, Jr. United States District Judge

February 9, 2010

cc: Nancy L. Hall, Esquire William D. Pandolph, Esquire

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