MENES v. CHUBB & SON et al
MEMORANDUM AND ORDER granting with prejudice 14 Motion for Summary Judgment ; denying 15 Motion for Summary Judgment. Signed by Judge Peter G. Sheridan on 4/23/2015. (mmh)
TIMOTHY S. MENES
Civil Action No. 3:13-cv-02094-PGS-DEA
CHUBB & SON (A DIVISION OF
FEDERAL INSURANCE COMPANY) and
METROPOLITAN LIFE INSURANCE COMPANY,
This matter comes before the court on defendant, Metropolitan Life Insurance Company’s
motion for summary judgment [ECF No. 14] and plaintiff’s cross-motion for summary judgment
[ECF No. 15]. Plaintiff, Timothy S. Menes, has asserted claims for relief under 29 U.S.C.
§1132(a)(1)(B). For the reasons set forth below, defendant’s motion for summary judgment will
be GRANTED and plaintiff’s cross-motion for summary judgment will be DENIED.
Plaintiff Timothy S. Menes (“Menes” or “Plaintiff”) is an individual seeking long term
disability benefits under the terms of Defendant, Chubb & Son’s (“Chubb”) long term disability
plan. Menes was employed with Chubb as a Senior Program Analyst and had been working from
home for three years prior to filing for LTD benefits in 2011. The plan is an employee welfare
benefit as defined by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.
§1132(a)(1)(B). Chubb is the policyholder, plan sponsor and plan administrator of the employee
welfare benefit plan providing disability benefits. Defendant Metropolitan Life Insurance
Company (“Metlife” or “Defendant”), is the claim administrator, therefore acting as claims
fiduciary for the plan. The plan is in part administered by the State of New Jersey.
Menes’s health issues resulted from an incident occurred on November 24, 1999, when he
fell off a ladder. According to the notes provided by Menes’s primary doctor, Dr. Prentice, the
condition began in 2008 and worsened as time went by. In 2010, Menes had multiple surgeries in
an attempt to alleviate lower back, neck and shoulder pain. Yet, even after the surgeries, he
continued to suffer pain from a degenerative disc disease, intervertebral foraminal narrowing, and
spinal stenosis. In attempt to accommodate Menes, Chubb allowed him to work from home for
three years prior to the disability request filed in 2011.
Menes submitted his initial claim for benefit on February 16, 2011, stating that he was
disabled from his job as Senior Program Analyst because he was unable to stand, walk and move
due to his injury. Additionally, he was unable to concentrate because he was taking large doses of
morphine. Menes’s job description was provided by Chubb to Metlife and consisted of the
0% lifting, driving, carrying and pushing
50%-80% verbal communication
50%-100% contact with internal customers
High concentration level required
Are responsible for providing leadership and guidance to more junior members of project
(See ECF No. 14, Exhibit C, ML1013). Menes qualified for the disability benefits because he was
disabled “due to sickness or as a direct result of accidental injury” and he was receiving
“appropriate Care and Treatment and complying with the requirements of such treatment.”
Additionally “he was unable to earn more than 80% of his predictable earnings at his own
occupation from any employer in his local economy.” (See ECF No. 14, Exhibit C, ML1012-13).
For these reasons, in 2011, Chubb, through their insurance company administrator MetLife,
granted Plaintiff a short term disability. MetLife subsequently requested medical records from
Menes in order to ascertain his medical condition. MetLife received office visit reports and CT
scans that they ultimately found to be inconclusive. Since the results were inconclusive, MetLife
sought and obtained a surveillance of Menes’s activities from days between May and June 2011.
Menes testified and supported with Dr. Prentice’s notes that he was unable to move for extended
periods of time, and that he was unable to operate machinery under medications. Nevertheless, he
was witnessed engaging in the following activities: walking, standing, shopping, bending,
squatting, pushing a cart, driving, picking up and carrying branches, operating a weed whacker,
riding a lawn mower, wearing and using a leaf blower backpack etc. These activities were found
to be inconsistent with the representations provided by Menes and his primary doctor. On April
2011, MetLife advised Menes that his short term benefit were going to expire and allowed him to
apply for long term benefits. In this application Menes mentioned that he had some good days and
some bad ones, that he could drive for about 15 minutes before experiencing pain and that he was
having issues with his memory due to the medication he was taking. Menes also stated that he was
no longer able to work from home because was experiencing memory issues due to the medications
he was taking.1 Menes further mentioned that some of the activities he was witnessed engaging in
were unavoidable because he had to take care of his family.
At that time Menes advised Metlife that he had no surgeries planned and that the only
doctor he was seeing was Dr. Prentice, his general practitioner. Dr. Prentice provided his opinion
by stating that Menes could sit, walk, and stand for one hour per day and that his attention span
was limited and accompanied by memory and cognitive issues. However, according to routine
office notations taken by Dr. Prentice, Menes cognitive functions appeared to be intact and
appropriate through his treatment. Upon later inquiries from MetLife, Dr. Prentice informed
MetLife that Menes was engaging in physical activities against his recommendations.
In his cross-motion for summary judgment, plaintiff mentioned a letter sent to Betty Sears, an employee at MetLife
where he stated that prior to working from home he had been falling asleep on the job and had to use an assistant to
be able to communicate with clients.
Pursuant to the recommendations provided by Dr. Prentice, MetLife extended the benefits
by approving the LTD request in 2011. Nevertheless, they obtained further surveillance of Menes
during October 2011. Again Menes was shown engaging in prolonged physical activities (i.e.
driving for 2 hours with intermittent stops, shopping and carrying bags). He was also observed
picking up clay targets from a skeet shooting area and carrying them to his car and sifting through
dirt to retrieve spent bullets for two days in a row. Upon gathering this information, MetLife sent
the surveillance to Dr. Prentice and in response received a letter from Menes attempting to explain
his activities. MetLife subsequently referred Menes to their own doctor, Dr. Monokofsky, who
found numerous inconsistencies in the case. Specifically, Dr. Monokofsky found that the record
was not specific enough as to past surgeries and consultations with Menes’s clinic and surgeon in
Florida (plaintiff argues that part of the records from Menes’s surgeries in Florida was lost, or
however unavailable to MetLife). He further stated that the surveillance video was inconsistent
with the impairment as documented by Dr. Prentice. Due to the specific nature of the injury, Dr.
Monokofsky recommended review of the records by a specialist. Accordingly, on January 2012,
MetLife submitted the record to Dr. Marion, a board certified doctor in physical medicine,
rehabilitation, and pain medicine. Dr. Marion found no objective impairment to support any
specific occupational restrictions.2 He was also asked to comment on the effects of the medications
that Menes was taking, finding that, though narcotics may cause cognitive deficits, there was no
specific evidence of cognitive deficits in the records. Dr. Marion attempted to contact Dr. Prentice
to discuss the file, but he was unable to reach him. Upon forwarding the record to Dr. Prentice,
Dr. Marion received a note stating that Menes was still unable to perform the duties required by
his employment and recommended that he see a neurosurgeon.
Plaintiff claims that MetLife’s record is incomplete and specifically is missing records from Gulf Coast Orthopedic
from 2010 (170pgs).
On February 16, 2012 a request was made for a vocational review as to whether Menes
was indeed able to perform his occupational duties. The meeting was conducted by a Unit Leader,
a Registered Nurse and the claims manager at MetLife. They all agreed that there was no need for
a neurosurgeon to visit Menes because the surveillance videos showed that he was functional.
MetLife administrators also reviewed the file determining that the medical record no longer
supported the impairment claimed by Menes.
Plaintiff claims that MetLife referred Menes to an Advocator Group to seek Social Security
Disability Insurance benefits. Defendant agreed with this statement asserting that they advised
Menes that he could obtain assistance in applying for Social Security benefits from an Advocator
Group. Applying for Social Security was required by the Plan offered by Chubb. The Plan
provides, “if there is a reasonable basis for You to apply for benefits under Federal Social Security
Act, We expect You to apply for them…” Menes applied for Social Security benefits and was
denied at first. However, on July 23, 2012, he was found eligible for Social Security Disability
benefits beginning from May 2012.
MetLife terminated the LTD as of March 26, 2012. On appeal, Manes was denied based
on the administrative record which included numerous medical reviews, vocational interviews and
multiple dates of surveillance that contradicted Menes’s claims. Furthermore, the basis of the
appeal contradicted representations made by Menes in the past, stating that his position at Chubb
was that of Executive Technology Support Administrator and not Senior Program Analyst and this
job could not be performed remotely. Menes stopped providing records after March 26, 2012.
Menes’s file was reviewed by a nurse consultant as part of the appeal process. The records were
further reviewed by Dr. Kaplan, a specialist in rehabilitation and pain management. Though Dr.
Kaplan recognized that Menes’s condition caused some restrictions (i.e. lifting more than 5-10
lb.), none of them coincided with duties to be performed as part of Menes’s job. Dr. Kaplan also
concluded that there was no documented clinical evidence to support cognitive restrictions caused
by medication side effects. Dr. Kaplan attempted to contact Dr. Prentice but was unable to reach
him. The records from the review were sent to Dr. Prentice but no response was received. As a
result of this process, the appeal was denied.
Plaintiff filed a complaint on April 3, 2013, seeking compensation and claiming that
MetLife’s termination of benefits was arbitrary and capricious, constituted a breach of the Plan,
and was an abuse of discretion. The complaint was followed by an answer provided by Defendant
on May 9, 2013. Cross-Motions for summary judgment pursuant to Rule 56(c) were filed by the
parties on January 10, 2014.
Legal Standard - Fed. R. Civ. P. 56(c)
Summary judgment is appropriate under Fed. R. Civ. P. 56(c) when the moving party
demonstrates that there is no genuine issue of material fact and the evidence establishes the moving
party’s entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the nonmovant, and it is material if, under the substantive law, it would affect the outcome of the suit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary
judgment, a district court may not make credibility determinations or engage in any weighing of
the evidence; instead, the non-moving party’s evidence “is to be believed and all justifiable
inferences are to be drawn in his favor.” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d
Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey
Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment
cannot rest on mere allegations and instead must present actual evidence that creates a genuine
issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier
Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). “[U]nsupported allegations . . . and pleadings
are insufficient to repel summary judgment.” Schoch v. First Fidelity Bancorp., 912 F.2d 654,
657 (3d Cir. 1990); see also Fed. R. Civ. P. 56(e) (requiring nonmoving party to “set forth specific
facts showing that there is a genuine issue for trial”).
Moreover, only disputes over facts that might affect the outcome of the lawsuit under
governing law will preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48. If a
court determines, “after drawing all inferences in favor of [the non-moving party], and making all
credibility determinations in his favor “that no reasonable jury could find for him, summary
judgment is appropriate.” Alevras v. Tacopina, 226 Fed. App’x 222, 227 (3d Cir. 2007).
Arbitrary and Capricious Standard of Review under ERISA, 29 U.S.C.
Pursuant to ERISA, “a civil action may be brought by a participant or beneficiary to recover
benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan,
or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. §1132(a)(1)(B).
An ERISA regulated plan confers to the plan administrator discretion to interpret the terms of the
plan to determine eligibility. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989).
Claims brought under §1132 of ERISA are subject to the arbitrary and capricious standard of
review. Bruch, 489 U.S. at 111. A plan administrator's decision will be deemed arbitrary and
capricious “if it is ‘without reason, unsupported by substantial evidence or erroneous as a matter
of law.’” Miller v. Am. Airlines, Inc., 632 F.3d 837, 845 (3d Cir. 2011) (citing Abnathya v.
Hoffmann–La Roche, Inc., 2 F.3d 40, 45 (3d Cir. 1993)). Evidence is substantial when “there is
sufficient evidence for a reasonable person to agree with the decision.” Courson v. Bert Bell NFL
Player Ret. Plan, 214 F.3d 136, 142 (3d Cir. 2000). The scope of this review is narrow. McCann
v. Unum Provident, No. 11-3241, 2013 WL 1145422, at *11 (D.N.J. Mar. 18, 2013). The court
reviews only for abuse of discretion and may not substitute its judgment for that of the plan
administrators. Id. In that sense, the court “sits more as an appellate tribunal than as a trial court.”
Id. at *10. Under this standard, the decision of the administrator “will be overturned only if it is
‘clearly not supported by the evidence in the record or the administrator has failed to comply with
the procedures required by the plan.’” Maciejczak v. Procter & Gamble Co., 246 Fed. App'x 130,
131 (3d Cir. 2007). In applying the arbitrary and capricious standard, plaintiff carries the burden
of demonstrating that he qualifies for the benefits requested and that the administrator’s decision
was arbitrary and capricious. Connor v. Sedgwick Claims Mgmt. Servs., Inc., 796 F. Supp. 2d 568,
580 (D.N.J. 2011).
MetLife decided to terminate the benefits after they failed to receive additional records and
in view of the second set of surveillance videos from October 2011, where Menes was observed
engaging in physical activity that contradicted his disability claims. In reaching this decision,
MetLife relied on the evaluation provided by several medical practitioners and independent
consultant who reached a consensus that was only contradicted by the claims of Menes’ primary
doctor, Dr. Prentice. Contrary to Plaintiff’s argument, the plan administrators’ reliance on the
opinion of their own consultants does not constitute arbitrary and capricious behavior. “ERISA
does not grant preferential treatment to the opinion of a treating physician, nor does it require a
heightened burden of proof for the administrator if he rejects the treating doctor’s opinion.” Black
& Decker Disability Plan v. Nord, 538 U.S. 822, 831 (2003).
The facts in this matter contradict Menes’s claims. He was observed engaging in physical
activities that according to Dr. Prentice were not possible due to Menes’s medical condition (i.e.
yard work or recreational activities at a shooting range). Although Dr. Kaplan, the practitioner who
most recently reviewed the record, mentioned that Menes medical condition may limit him in
certain physical activities, none of them would affect Menes’s ability to perform his job as Senior
Program Analyst. The surveillance videos provided in October 2011, further support Dr. Kaplan’s
findings by showing that the limitations claimed were inconsistent with Menes’s actual ability to
perform activities and therefore proved that his functionality exceeded the requirements of his
occupation making him ineligible for LTD. According to the arbitrary and capricious standard,
this court is not reviewing MetLife’s decision for accuracy but simply to evaluate whether they
provided sufficient support. Conclusively, MetLife has provided sufficient support to substantiate
Plaintiff attempts to argue that Defendant has failed to provide evidence on Menes’s
inability to perform the essential duties of his own occupation due to side effects of medications.
This type of argument fails to consider that the burden of proof is on Plaintiff to demonstrate that
the Defendant’s decision was indeed arbitrary and capricious. For this reason, the claim is
irrelevant to this analysis.
For the above stated reasons, Menes is unable to meet the arbitrary and capricious standard
that would grant continuation of benefits under the Plan offered by Chubb.
Menes Qualification for Disability Benefits Pursuant to the Plan’s Definition
According to the Plan provided by Chubb, to qualify for benefits the patient must be: (a)
receiving Appropriate Care and Treatment and complying with the requirements of such treatment
(b) is unable to earn (1) “more than 80% of your Predisability Earnings from any employer in Your
Local Economy from any employer in your local economy” (2) After such period, more than 80%
of your Predisability Earnings from any employer in your local Economy at any gainful occupation
for which you are reasonably qualified taking into account your training, education and
experience.” [ECF No. 14, Exhibit A, ML1040].
MetLife stated that the decision to terminate the benefit was based on Menes’ failure to
provide records in support to his condition. The medical professionals that reviewed Plaintiff’s
medical records unanimously concluded that Menes claimed restrictions and limitations were not
medically supported and were inconsistent with his observed activities. In fact, his observed
activities evidenced functionality that exceeded the requirements of his occupation. Additionally,
at the time Menes requested continuation of benefits, he was only receiving treatment from his
general practitioner, Hugh Prentice, M.D. Arguably, this may not meet the requirement of
“appropriate care and treatment” provided by the Plan. Furthermore, MetLife was not provided
with medical evidence documenting cognitive impairment and/or mental status exam findings
supporting impairment from March 2012 forward. Accordingly, they determined that given the
medical documentation provided the condition did not prevent Menes from earning more than 80%
of his predisability income at his occupation from his employer. Based on these parameters, Menes
no longer met the employer’s Plan definition of disability at the time MetLife’s decision was made.
In his opposition, Plaintiff raised an argument as to Menes’s inability to provide objective
evidence of his cognitive impairment. Providing objective evidence of a condition that cannot be
proven objectively may constitute a hurdle to Plaintiff’s ability to prove his case. See generally
Mitchell v. Eastman Kodak, 113 F.3d. 433 (3rd Cir. 1992). Menes provided the industry standard
for side effects of the medication he was taking, however even Dr. Prentice mentioned in his
notations that Menes’s cognitive function appeared intact. Additionally, MetLife has clarified that
the decision to deny benefits was based on Menes’s failure to provide updated evidence of his
condition altogether, rather than on absence of objective evidence.
Conflict of Interest
Pursuant to the Supreme Court decision in Bruch, “if a benefit 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.” Bruch, 489 U.S. at
115. (Internal quotations omitted). However, a potential conflict of interest “should prove less
important where the administrator has taken active steps to reduce potential bias and to promote
accuracy, for example, by walling off claims administrators, from those interest in firm finances,
or by imposing management checks that penalize inaccurate decision-making irrespective of
whom the inaccuracy benefits.” Metropolitan Life Ins. Co. v. Glenn, 128 S. Ct. 2343, 2351 (2008).
Plaintiff argues that because MetLife determines eligibility for and pays for long term
disability benefits, a conflict of interest exists. MetLife adopts a system that allows each claim to
be reviewed on its own merits and each claim determination to be based solely upon the
information in the claimant’s file and the terms of the plan. Additionally, in an attempt to maintain
neutrality, the financial and claim offices are geographically separated. MetLife specialists do not
receive compensation or any other incentives from denying claims. They review each claim
consistently, regardless of whether the Plan is funded by an employee (as in this case) or by
MetLife. The possibility for a conflict of interest appears to have been properly handled by the
Defendant, and therefore does not weigh in favor of Plaintiff in this analysis.
Social Security Decision
Plaintiff argues that MetLife failed to properly consider the Social Security Disability
decision when evaluating the record. “An award of social security disability benefits by the SSA
‘may be considered as a factor in evaluating whether a plan administrator has acted arbitrarily and
capriciously in reviewing a Plaintiff's claim.’” Connor, 796 F. Supp. 2d at 584-85 (citing
Marciniak v. Prudential Fin. Ins. Co. of Am., 184 Fed. App’x 266, 269 (3d Cir. 2006)). However,
“an award of SSD benefits does not in itself establish that an administrator's decision was arbitrary
and capricious.” Id. (internal citation omitted). This is because the legal principles controlling the
Social Security analysis differ from those considered in an ERISA analysis. Id.
Although the Social Security analysis is not binding, the decision is to be considered when the
plan administrator: “(1) encourages the applicant to apply for SSD payments; (2) financially
benefits from the applicant's receipt of Social Security; and then (3) fails to explain why it is taking
a position different from the SSA on the question of disability, the reviewing court should weigh
this in favor of a finding that the decision was arbitrary and capricious.” Connor, 796 F. Supp. 2d
at 585 (internal citation omitted).
Plaintiff mentioned in his statement of facts that MetLife encouraged him to apply for
social security benefits; however, Defendant stated that they advised him to seek advice from an
Advocator Group as part of the Plan’s requirements. Furthermore, while MetLife’s claim
determination was based upon the entirety of the administrative record, the Social Security
administration did not consider the surveillance videos and the opinion of other physicians in
making its decision but instead just relied on the underlying medical recommendations and
reported functional restrictions provided by Dr. Prentice. For these reasons, and according to the
above mentioned standard, the Social Security benefits determination does not contribute to the
arbitrary and capricious determination in this matter.
For the aforementioned reason, Defendant’s motion for summary judgment is be
GRANTED and Plaintiff’s cross-motion is be DENIED.
This matter comes before the court on defendant, Metropolitan Life Insurance Company’s
motion for summary judgment [ECF No. 14] and plaintiff’s cross-motion for summary judgment [ECF
No. 15]. For the reasons set forth above,
IT IS on this 23RD day of April, 2015;
ORDERED that Defendant’s motion for Summary Judgment shall be, and hereby is, granted
with prejudice. (ECF No. 14); and it is further
ORDERED Plaintiff’s cross-motion for Summary Judgment shall be, and hereby is denied.
ECF No. 15).
s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.
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