BROWN v. FIRST RELIANCE STANDARD LIFE INSURANCE CO.

Filing 31

MEMORANDUM OPINION re: 18 MOTION for Summary Judgment filed by Defendant FIRST RELIANCE STANDARD LIFE INSURANCE CO., and 22 Cross MOTION for Summary Judgment filed by Plaintiff, JULIE BROWN. Signed by Judge William L. Standish on 3/17/2011. (md) Modified on 3/18/2011. (md)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JULIE BROWN,
Plaintiff, vs. FIRST RELIANCE STANDARD LIFE INSURANCE COMPANY, Defendant. Civil Action No. 10-486

MEMORANDUM OPINION
Pending before the Court are cross motions for summary judgment filed by Defendant First Reliance Standard (Doc. No. 18) and P seeks fe Insurance Company Plaintiff welfare

intiff Julie Brown (Doc. No. 22.) under an

short-term disability benefits

employee

fi t plan governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C.
§

1001,

et seq.

("ERISA.")

For

reasons

scussed below, is granted.

aintiff's Motion is denied and Defendant's Motion

I.

INTRODUCTION
A. Factual Bac round 1

From December 27, 2004, through at least November 9, 2007, intiff Julie Brown was employed as a machine operator at National
1 The facts in this section are undisputed, based on the Court's reading of Defendant's Concise Statement of Material Facts, Doc. No. 20; the Appendix thereto, Doc. No. 21; Plaintiff's Concise Statement of Material Facts, Doc. No. 24; and Plaintiff's Response to Defendant's Concise Statement of Facts, Doc. No. 25.

Envelope

Corporation

("National"), provided Plan")

located its under a

in

Fayette

County,

Pennsylvania. disability maintained

National ("the

employees policy

short-term offered and

benefits by

Defendant

First

Reliance

Standard

Life

Insurance

Company ("First Reliance.") of November 2007. At the time of the

Ms. Brown was enrolled in the Plan as

events

in

question,

Ms.

Brown

was

approximately 45 years old.

She had previously given birth to four (Administrative

children; a fifth pregnancy ended in miscarriage. Record, Doc. No. 21, "AR," at 92.) ligation, but after an

She had then undergone a tubal attempt to reverse that

unsuccessful

procedure, she began consulting in June 2006 with Dr. Anthony Wakim, a fertility specialist at Magee Women's Hospital in Pittsburgh,

Pennsyl vania. in vitro

Ms. Brown then decided that she wanted to proceed wi th ("IVF.")
2

fertilization

In

October

2007,

Dr.

Wakim

described Ms. Brown's prognosis for such a pregnancy as "very poor." (AR at 1 0 9 , III , 113 , 11 6 . ) 3

In vitro fertilization "is an assisted reproductive technology that involves administration of fertility drugs to the woman, surgical extraction of her eggs, fertilization in a laboratory, and surgical implantation of the resulting embryos into the woman's womb. Each IVF treatment takes weeks to complete, and multiple treatments are sometimes needed to achieve a successful pregnancy." Hall v. Nalco Co., 534 F.3d 644, 645-646 (7th Cir. 2008), ci ting The Merck Manual of Medical Information, 1418-19 (Mark H. Beers, MO, et al. eds., 2d home ed. 2003), and the Mayo Clinic Family Health Book, 1069-70 (Scott C. Litin, MO, ed., 3d ed. 2003).
3

In the administrative record, Ms. Brown is also referred to as "Julie
2

In the

11 of 2007, Ms. Brown underwent a number of tests and the IVF procedure. 2007. She continued

examinations in preparation working until Friday,

November 9,

Between November 12 and

November 26, Ms. Brown visited the Magee Clinic several times for sonograms, blood tests and physical examinations, culminating in a surgical procedure the for removal of an egg on November 26.
23

and

implantation of

rtilized egg

on November the

(AR 106.)

Plaintiff subsequently learned that successful and she was pregnant. Meanwhile, on November 19, (" STD") Ms.

IVF procedure had been

Brown submitted a claim for Plan. In her

short-term disabili ty

benefits under the

claim, her employer stated that the reason Ms. Brown had stopped work as of November 9, 2007, was "in vitro fertil ization. " an Attending Physi (AR183.) In Dr.

an's Statement submitted with the claim,

Wakim indicated that Ms. Brown would not be able to per

rm her job

beginning on November 12, 2007, through at least December 14, 2007, and possibly longer depending on "pregnancy testing following IVF." (AR 184.) On December 18, 2007, Plaintiff's physician released her to her to work which required no heavy

return to work but restrict

lifting (i.e., no more than 10 pounds) and no continuous standing. (AR 103.)
Sandoval
lf

Ms. Brown attempted to return to work as of that date,
and "Julie Sandoval Brown." 3

learned rest

that

r

employer

could

not

accommodate

these

ctions and she was laid-off. On January 18, 2008,

(AR 42.)

rst Reliance notified Ms. Brown that it short-term disability benefits for a

was denying her claim for combination of reasons.

First, under the terms of the insurance undergoing in vitro

policy between National and First Reliance,

ilization was not considered a "Sickness" or "Injury," as those terms were defined. submitted in support ef Secondly, the medical records Ms. of her application r benefits Brown had had not

reflected any s

cts from the treatment which would have (AR 68-69.)

prevented her from working as of November 12, 2007. Al though the letter from First Reliance advi to have this decision so at that time.

Ms. Brown of her right

ewed, she did not request Defendant to do

On May 6, 2008, Ms. Brown filed a second claim for benefits, identifying her condition as pregnancy and disability began as of November 12, 2007. in indicating that her According to the medical

records provided by her obstetrician, Dr. James Nolfi, in support of this claim, her anticipated delivery date would be August 15, 2008, and she would be able to return to work on September 29, 2008. In

the interim, she was still restricted from any work which required continuous standing or lifting more than 10 pounds. Among Dr. cated

Nolfi's records was an undated, unsigned document which i
4

Plaintiff could perform "no heavy lifting" and was unable to perform "continuous standing." Her serious health condition was described

as pregnancy and the form noted that "IVF treatment resulted in pregnancy." A 18, 2008 (AR 102; 152-153.)
I

days later

on May 16, 2008, Ms. Brown appealed the January

ial of benefits, stating that her "conscious decision"

to become pregnant "should have nothing to do with the decision of eligibil y of benefi ts.
II

(AR 85. )

She also contended that she had

mentioned negative side ef and atta underl At internal

cts of the IVF treatment to her nurse st in which she (AR 87-91.) a comprehensive

drug monographs provided by her pharma the side effects she had experienced. this point, First iance undertook

ew of Plaintiff's entire claim file and provided the

file to an independent specialist in obstetrics and gynecology, Dr. Rafat A. Abbasi. reflect (AR 57-58.) Dr. Abbasi that the record ss. She did IVF

Ms. Brown had had an "uneventful p

without problems or incident. and no complications noted. 71.)
~no

There was no hyperstimulation noted
II

There were no side effects noted. on his review of t

(AR

He commented that bas restrictions and 1 (AR 71.)

documentation, according to the

tat ions are suppo

records."

Based on these reviews,

rst Reliance again informed Ms. Brown

on June 12, 2008, that it had concluded she was not disabled at the
5

time she had stopped working and that her initial claim for benefits was again denied. Moreover, because she was not actively at work and thus not in an "Eligible Class"

when she became pregnant,

National employees covered by the Plan, her second request for short term disability coverage beginning with the IVF and throughout the course of her pregnancy was also denied. (AR 57 61.)

After her baby was born, Ms. Brown returned to work at National until she voluntarily Ie Doc. No. 22, Exh. 1.)
4

in May 2009.

(Affidavit of Julie Brown,

Ms. Brown did not appeal the decision of June

12, 2008, denying her second application for benefits, inasmuch as First Reliance stated in that letter that she had exhausted her administrative remedies available under the Plan. B. Procedural Background Having exhausted her administrative appeals with First Reliance, aintiff filed suit in this Court on April 14, 2010. aintiff claims that In (AR 60.)

her one count complaint,

rst Reliance abused

its discretion for a number of reasons in denying her request for short-term disability benefits while undergoing IVF treatments and

Under most circumstances, "the record for arbitrary-and-capricious review of ERISA benefits denial is the record made before the plan administrator, and cannot be supplemented during litigation." Kosiba v. k & Co. 384 F.3d 58, 67 n.5 (3d Cir. 2004) i Po v. Hartford Ins. Co. 501 F.3d 154, 168 (3d Cir. 2007) (in deciding summary judgment in an ERISA denial case, the court is generally limited to the facts known to the plan administrator at the time the decision was made.) The Court has not considered the statements made by Ms. Brown in her affidavit as evidence, but rather provides this information only to complete the factual account.
6

during the resulting pregnancy. lowing unsuccessful mediation in July 2010, filed brie
II.

the parties

pending cross motions the issues. matter is now

r

summary judgment and fully for decision by the Court.

JURISDICTION AND VENUE

parties jurisdiction 1132 (a) (1) (b) pursuant and to

that 28

this U.S.C.

Court
§

has and

subject 29

matter
§§

1331

U.S.C.

(e) (I).

Venue is properly laid in the Western alleged ERISA
§

District of Pennsylvania inasmuch as t occurred within this strict.

olations

See 29 U. S.C.

1132 (e) (2).

III. STANDARD FOR SUMMARY JUDGMENT

A court may grant summary judgment if the party so moving can show"t moving Fed.R.C re is no genuine issue as to any material fact and that the party is entitled to judgment as a matter of law.
ff

.P. 56{c) i Sollon v. Ohio Cas. Ins. Co., 396 F. Supp.2d 560,

568 (W.O. Pa. 2005). If a reasonable jury could return a verdict for the non-movant, the di the di A factual would af e is genuine and if, under substantive law, ct the outcome of the suit, it is material. t is both genuine and judgment. Anderson v. (1986).

dispute between the parties

material will defeat a motion for summa Liberty Lobby, Inc., 477 U.S. 242, 247-248

In considering a motion for summary judgment, the court must view all evidence in the light most favorable to the non-movant,
7

accept the non-movant's version of the facts as true, and draw all reasonable inferences and resolve any conflicts in its favor.

Sollon, id., ci ting Matsushi ta Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 u.s. 574, 587 (1986), and Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). In short,

the movant must show that if the pleadings, depositions and other evidentiary material were admissible at trial, the other party could not carry its burden of proof based on that evidence and a reasonable jury would thus decide all genuine material disputes in the movant's favor. Celotex Corp. v. Catrett, 477 U.S. 317, 318 (1986).

Once the movant has demonstrated that there are no genuine issues of material fact, the burden shifts to the non-moving party to "make a showing sufficient to establish the existence of every element essential to his case, on based on the affidavits id. the at or by

deposi tions Sollon, id.;

and admissions Fed.R.Civ.P.

file." The

Celotex, sum of

322-323;

56(e).

affirmative

evidence to be presented by the non-moving party must be such that a reasonable jury could find in its favor, and it cannot simply

reiterate unsupported assertions, conclusory allegations, or mere suspicious beliefs. Liberty Lobby, id. at 250-252; Groman v.

Township of Manalapan, This Court may

47 F.3d 628,

633

(3d Cir. 1995). for summary judgment

resolve

cross motions

concurrently.

See InterBusiness Bank, N.A. v. First Nat'l Bank of
8

Mifflintown,

318 F.

Supp.2d 230,

235

(M.D.

Pa.

2004),

ting 10

Charles A. Wright et ai., Federal Practice and Procedure § 2720 (3d ed. 1998.) When doing so, the court must consider each motion

independently and must

ew the evidence in the light most favorable Pichler v.

to the non-moving party with respect to each motion.

Unite, 542 F.3d 380, 386 (3d Cir. 2008); _C_I____~___v_~.__ F_i~r~s~t~~_i~o~n Health Plan of New Jersey, 208 F. Supp.2d 463,468-469 (D. N.J. 2002). "A party's concessions made for purposes of its own summary judgment motion do not carryover opposing party's motion." Ass'n, into the court's consideration of the LaManna v. Special Agents (W.O. Pa. 2008),
Mut~

Benefits

546 F. Supp.2d 261, 267

citing Coolspring

Stone Supply, Inc. v. Am. States Life Ins. Co., 10 F.3d 144, 150 (3d Cir. 1993). The question of whether the defendant is entitled to judgment as a matter of law under the standards courts apply when determining if benefits protected by ERISA have been wrongfully denied is one the courts have found particularly rst Unum well-suited for summary

resolution.

---~----------~-----.

Muller v.

fe Ins. Co., 341 F.3d 119, 124

(2d Cir. 2003) (Because there is no right to a jury tr ial under ERI SA, the dist ct court typically acts as the finder of fact and conducts

a bench trial "on the papers.")

9

IV.

ANALYSIS

A.

The Part In its motion

s
summary judgment, Defendant argues that

under the terms and definitions governing the Plan, Ms. Brown was not elig e for benefits at the time she Ie her employment on r a

November 9, 2007, because undergoing IVF treatments was ne "Sickness" provisions. nor "Injury" covered by the short-term which First

benefits Reliance

Her

subsequent

pregnancy,

concedes would have been covered under the "Sickness" provisions of the Plan, was when not she covered because Ms. became pregnant in Brown was late not "actively 2007 and

employed"

November

therefore not eligib

for coverage.

Under established Supreme

Court and Third Circuit precedent, where the ERISA-covered plan question authority, eligibility gives such for the administrator scretion benefits, of the the plan discretionary of the

encompasses as occurred

determination Because

reo

administrator of the plan acted consistently with the unambiguous terms of the Plan and within its discretion in denying benefits, summary judgment must be granted in favor
~

of

First

Reliance.

(Defendant's Motion

Summary Judgment,

10,

ting Metro. Life
V.

Ins. Co. v. Glenn, 554 U.S. 105 (2008), and Schwing Plan, 562 F.3d 522 (3d Cir. 2009).)

Lilly Health

Conversely, Plaintiff argues that substantial evidence appears
10

in the admi "procedure" inj ections

strative record to support her position that actually on began 12, with 2007, a series not the of examinations of t

IVF and

November

date

actual

implantation, November 26, 2007.

fore, the 1

tat ions which sabled as

her physicians imposed effectively caused of the

to become

ior date, first because her physician required her to be

f from work during the two weeks prior to the fertilization, then, after she was allowed to return to work, r employer could not (Plaintiff's Brief No.
23,

provide the light work to which she was limited. in Support of Motion for Summary Judgment, Brief,
II

Doc.

"Plf.' s

3-4.)

Second, Defendant acted arbitrarily and capriciously rding her second application by refusing

in making its decision

to accord any weight to the Medical Certification Statement required by National because it was not signed, even though it was obvious from the face of the document that it was generated by the Magee Clinic. Moreover, the letter of June 12, 2008, denying the appeal

of the first application and her second claim for benefits, was the first time Plaintiff had been apprised that this was among the reasons for denying her claim, far too long after she could have taken any steps to rectify the omission of a signature. (Id. 10-11. )

Ms. Brown also argues that First Reliance's refusal to allow her to remediate the deficiencies which were the basis for the denial -- but were first made known to her in the letter of June 12, 2008
11

violates the ERISA p

sions which require benef

plans to ef

provide adequate notice to the plan beneficiaries. at 11-14.) Fourth, she

(PIt.' s

s that the Plan language is not only al standard of care imposed by ERISA upon its duties solely in the interests es of a plan. (Id. at 14-19.)

vague but violates the a plan administrator to dis of the participant and

neficia

nally, Ms. Brown contends t

rst Reliance ignored substantial

evidence supporting her claim when it refused to acknowledge she was legitimately limited to only light duty work owing to the risks inherent in her IVF treatments and subsequent pregnancy. at 19 23.) (Id.

B.
ERISA permits a
i

or beneficiary of an insurance

plan covered by ERISA to bring a civil suit "to recover benefits due to him under the terms of his plan, to enforce his rights under t term of the plan, or to clari the terms of the plan." his rights to future benefits under
§

29 U.S.C.

1132 (a)

(1)

(B).

As the

States Court of Appeals for t

Third Circui t pointed out in _M_i-ct,--_l_l

v. Eastman Kodak Co., 113 F.3d 433,437 (3d Cir. 1997), ERISA itself does not establish the standard of review for an action brought under
§

1132 (a) (1) (B).

In Firestone Tire

&

Rubber Co. v. Bruch, 489 U.S. ts novo

101, 115 (1989), the Supreme Court held that "a denial of bene challenged under
§

1132 (a) (1) (B) is to be reviewed under a
12

standard unless the benefi t plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." If, however, the plan does provide the standard of s an abuse

the administrator with di scretionary authority, review is more deferential, discretion standard. 792 (3d Cir. 2010), and the court appl

See Howle

v. Mellon

625 F.3d 788, This deferential

ting Firestone, id. at 111.

standard applies not only to decisions concerning interpretation of the plan itself, but also to the administrator's Welfare, fact-based and Pension

determinations. Trust Funds,

Luby v.

Teamsters Health,

944 F.2d 1176, 1187 (3d Cir. 1991).

In short, "when

the arbi trary and capricious standards applies, the decision maker's determination to deny benefits must be upheld unless error or not rational." 1137, 1141 (3d Cir. 1993) (internal quotation omitted.) was clear 4 F. 3d

Prior to the Supreme Court's recent decision in Glenn and the Third Circuit Court of Appeals' application thereof in Schwi

courts in this Circuit had applied a "sliding scale lf when reviewing claims that the administrator of a plan covered by ERISA had abused its discretion in determining eligibility for benefits.
~~~~~--~~~--------------------------

See Pinto

ance Standard Li

Insurance Co., 214 F.3d 377, 392 (3d Cir.

In reviewing ERISA cases involving denial of benefits by the an administrator, the Third Circuit Court of Appeals uses the phrase "arbitrary and capricious" interchangeably with "abuse of discretion. 1f Howley, 625 F.3d at 793, citing Schwi 562 F.3d at 526 n.2. 13

2000), applying a "heightened arbitrary and capricious standard of review." However, the Supreme Court held in Glenn that when the

terms of a plan grant discretionary authority to the administrator, it is appropriate for court to apply a deferential standard of review, even in the ce of a conflict created, for example, when the same Glenn are to 554 U. S. 105 "determine
0

enti ty both funds and evaluates benefi t claims. at law 117, stating by that in ERISA cases, account of courts dif

lness

taking

several

rent,

en

case

specific, factors, reading a result by weighing all together;" see

also

_ _ _ _ _ _L - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

v. First Reliance Std.

fe Ins. Co.

581 F. Supp. 2d 594,

602 (S.D. N.Y. 2008) 'factor'

(the existence of such conflicts is "just one 'tiebreaker' when other

among many that may serve as a

considerations are in equipoise. 1/)

The Third Circuit Court of

Appeals thereafter acknowledged that its "sliding scale" approach is no longer valid. Instead, courts reviewing the de sions of ERISA an administrators. .in civil enforcement actions brought pursuant to 29 U.S.C. § 1132(a) (1) (B) should apply a de rential abuse of discretion standard of review across the board and consider any conflict of interest as one of seve factors in considering whether t administrator . abused its discretion. Schwi 562 F.3d at 525. An administrator abuses its discretion only if the decision is "without reason, unsupported by substantial evidence or erroneous as a matter of law." Howley, 625 F.3d at 792, quot
14

g Abnathya v.

Hoffmann-LaRoche, Inc., 2 F. 3d 40, 45 (3d Cir. 1993).

In determining

if an administrator's interpretation of a plan is "reasonable,u the Court is directed to consider the llowing factors:

(1) whether the interpretation is consistent with the goals of the Plan; (2) whether it renders any language in the an meaningless or internally inconsistent; (3) whether it conflicts with the substantive or procedural requirements of the ERISA statute; (4) whether the [relevant ent ies have] interpreted provision at issue consistently; and (5) whether the interpretation is contrary to the clear language of the an. Howle 625 F.3d at 793. Both during the initial period in which the claimant seeks bene ts and in the summary judgment process, it is the claimant's

burden to show she was disabled and entitled to benefits, not the administrator's burden to show she was not disabled. Houser v.

Alcoa, Inc., CA No. 10-160, 2010 U.S. Dist. LEXIS 128281, *23 (W.D. Pa. Dec. 6, 2010); Morales-Alejandro v. Medical Card Sys., 486 F.3d 693, 700
(lst

Cir. 2007). denial of

Similarly, when a court is determining bene ts by the plan administrator was

whether

the

arbitrary and capricious, the burden is on the claimant/plaintiff. Moskalski v. Bayer Corp., CA No. 06-568,2008 U.S. *12-*13 (W.D. Pa. May 16, 2008), st. LEXIS 39970,

ting Stout v. Bethlehem Steel

Corp., 957 F. Supp. 673, 691

(E. D. Pa. 1997).

15

C.

Terms and Conditions of the Policy We begin with a summary of the relevant definitions set

out in the Policy and the crite

a which must be satisfied in order

for a participant to receive short-term disability benefits. According to the version of the short-term disabili ty insurance policy which was in effect between November 2007 when Ms. Brown first applied for STD benefits and June 2008 when she received a letter from First Reliance informing her that she had exhausted all her administrative appeals,
6

all "active, full-time" union employees of

National at the Scottsdale facility were eligible to participate in the plan at no cost to themselves. "Full-time" was defined as

working a minimum of 40 hours during the person's regular work week. (Supplemental Administrative Record, Doc. No. 30, Exh. A, "Policy," 1.0 and 2.0.) An employee who met the eligibility requirements of the Policy and was enrolled Insured." r STD insurance coverage was referred to as "an at work' and 'active work' means the person

"'Actively

[is] actually performing on a full time basis each and every duty pertaining to his/her job in the place where and the manner in which the job is normally performed. This includes approved time off such

The Policy which was provided as part of the administrative record submitted by Defendant at Doc. No. 21 (see AR 1-19) was not the version in effect during the period noted above. The court directed Defendant to provide a copy of the correct version of the Policy which was filed at Doc. No. 30, Exh. A. 16
6

as vacation, jury duty and funeral leave, but does not include t off as a result of Injury or Sickness. u four conditions under which STD (Policy, 2.0.) coverage There were would

insurance

terminated; the only one relevant to this matter is that cove terminates on "(2) the date the Insured ceases to be in a class (Policy, 6.0.)

eligible for this insurance. u With some exc of 60% of the Ins "if an Insured:

ions not relevant here, the Plan paid a maximum , s salary per week

a

iod of up to 20 wee

(1) is disabled due to Sickness or Injury; and (2)
(Policy, 1.0 and
(1)

becomes disabled while insured by this Policy.u
7.0. )

"Disabled U was defined to mean "t

Insured is:

unable

to do the material

ies of his/her job; and (2) not doing any work
(Id. ,

for payment; and (3) under the regular care of a physician." 2.0. )

"Injury" was defined as "bodily injury resulting directly

from an accident independent of all other causes," and "Sickness" as an "illness or disease causing disability" and explicitly included "pregnancy, complications childbirth, from." miscarriage In the or case abortion, of either or Inj ury any or

Sickness, the cause of the disability had to have begun while the person was an Insured. Finally, (Id., 2.0-2.1.) icy expressly

it is important to note that t

granted discretionary authority to First Reliance, that is: First Reliance Standard Life Insurance Company shall serve
17

as the claims review fiduciary with respect to the insurance policy and the Plan. The claims review fiduciary has the discretiona authority to interpret the Plan and the insurance policy and to determine eligibility for benefits. Decisions by the claims review fiduciary shall be complete, final and binding on all parties. (Policy, D. 5.0.) The November 2007 Application, Denial and Appeal

1.
question that

Disabili ty beginning November 12, 2007:
Ms. Brown ceased working at National

There is no on Friday,

November 9, 2007, and applied for STD benefits beginning on Monday, November 12, 2007. The question is, was she "Disabled" - as that As noted

term is defined by the Policy - as of November 12, 2007? in the previous section, disability bene

ts under the Policy may

only be awarded if, as the result of Sickness or Injury, Ms. Brown was unable perform the material duties of her job, was not doing other work for payment, and was under the regular care of a physician. second and third crite The

a are not in question here, nor is there any to an Injury. Therefore, we need not

claim of disability due

consider those possible elements of her claim. Was Ms. Brown unable to perform the material duties of her job as the result of a "Sickness" on November 12, 2007? be no. The answer must

The condition for which she was being intensively treated 2007, was infertility. Al though she

beginning on November 12,

argues that undergoing the preliminary procedures in anticipation
18

of the actual IVF surgeries on November 23 and 26 were "complications" of pregnancy, the common definition of a "medical complication" is "an additional disorder or condition that develops during the course

an

sting oneil or "a secondary disease, an accident or a negative

reaction occurring during the course of an illness and usually aggravating the illness." of the Oxford English

See, respect
Dictionary at

ly, the on-line versions www.oed.com/view/Entry/

37711?redirectedFrom=complication#, definition d, and the American Heritage Dictionary at tp://education.yahoo.com/reference/

dictionary/entry/complication (emphasis added in each case);7 see

also Burnham v. Guardian
Cir. 1989)

fe Ins. Co. of Am., 873 F.2d 486,489 (1 st language in an ERISA-regulated Logically,

("[S]traightforward

insurance policy should be given

s natural meaning.")

treatment for infertility cannot be considered a complication of pregnancy since infertility and pregnancy are mutually exclusive states of being. was not disab Prior to November 12, 2007, it is c ar Ms. Brown

d by her infertility since she had, apparently, worked

steadily at National beginning in 2004, despite having undergone a tubal ligation in 1993 and an unsuccessful attempt at reversal in 1997. (AR 92.)

7 These definitions do provided to assist the use evidence outside understand the medical

not appear in the administrative record but are reader. See Kosiba, 384 F.3d at 69 (A court may the administrative record in order to better issues involved.) 19

Ms.

Brown also argues that

only reason she was able to

successfully conceive through IVF was that she rigorously followed her physician's instructions and remained off work beginning on November 12, 2007.
(Pl£.' s

ef at 21.)

The medical evidence

shows that prior to that date, she had undergone a number of tests and examinations to determine November 12, s r fitness for the IVF procedure. On

began a course of self injections

scribed by her (AR

physician, which she continued until at least December 7, 2007. 41). During t

period November 12 through November 26, she also cal appointments and examinations at the Magee

had numerous

Clinic in preparation for the IVF egg extraction and implantation procedures performed on November 23 and 26. However, nothing in the

medical evidence provided by Dr. Wakim indicates that he suggested or required that she completely stop working as of November 12, 2007, except the conclusory statement in the attending physician's portion of the application form that s 12 and December 14, 2007, would be disabled between November IVF

depending on the outcome of the

procedure.

(AR 183.) Brown may have greatly

As callous as it may seem, while Ms. desired another

Id and was willing to undergo significant effort,

discomfort, and expense in order to achieve this goal, the question was not whether these treatments required considerable time off from work beginning on November 12, 2007, it is whether s
20

was "Disabled,

/I

as that term is defined in the Plan.

There is nothing to indicate

that she was experiencing "Sickness u which resulted in disability as of that date. administrat Thus, we must conclude, based on our review of the record, that the plan administrator's decision

denying benefits because Ms. Brown was not disabled as of November 12, 2007, was reasonable and neither arbitrary nor capricious.
2.

Notification of denial:

The conclusion that First

Reliance was not arbitrary and capricious in denying disability benefits while Ms. Brown was undergoing the in vitro fertilization process does not end our analysis, however, because Plaintiff also claims the denial letter ERISA requirements. January 18, 2008, did not conform with

Specifically, Ms. Brown argues that the letter the additional information needed Moreover, it failed

iled to include a description

to perfect her claim and why it was necessary.

to mention a reason for the denial which would be given in the letter of June 12,2008 (discussed below), that is, she was not considered an employee as of November 12, 2007. ERISA requires that every (Plf.'s Brief at 10-11.)8 benefit plan "provide

employee

adequate notice in writing to any participant.

.whose claim for

benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be

Because Plaintiff's brief frequently combines arguments concerning both denial letters, in order to avoid addressing those arguments twice, we have chosen to address them in the section below discussing the June 12, 2008 letter. 21

understood

by

the

participant."

29

U.S.C.

§

1133(1).

The

associated regulations require that the notification of any adverse benefit determination shall set forth, in a manner calculated to be understood by the claimant (i) The specific reason or reasons for the adverse determination; (ii) Reference to the speci which the determination is based; c plan provisions on

(iii) A description of any additional mate al or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; (iv) A description of the plan's ew procedures and the time limits applicable to such procedures, including a statement of the claimant's right to bring a civil action under section 502(a) of the Act following an adverse benefit determination on review[.] 29 C.F.R.
§

2560.503-1(g) (i}-(iv).

Under these regulations, a notice is sufficient if it is "in substantial compliance with the governing regulation." v. Hartford Li & Accident Co., --------------------------------See Mazur

CA No. 06-1045, 2007 U.S. Oist. LEXIS

99927, * 37 (W.O. Pa. Nov. 8, 2007); Kao v. Aetna Life Ins. Co., 647 F. Supp.2d 397, 411 (D. N.J. 2009). satisfies these requirements, When determining if the notice

court must consider all exchanges

between the claimant and the plan administrator in order to determine if the information was adequate under the circumstances. Wade v.

22

Hewlett-Packard Dev. Co. LP Short Term Disability Plan, 493 F. 3d 533, 539 (5 th Cir. 2007); Houser, 2010 U.S. Dist. LEXIS 128281 at *29. We begin our consideration of Plaintiff's "inadequate notice" argument with a summary of the relevant information provided by Ms. Brown, her employer, and Dr. Wakim in support of the initial claim. Ms. Brown stat 12, 2007. that she was first unable to work as of November

The form described Ms. Brown as a member of insurance Class

5 under the First Reliance Policy and further indicated that she was not as of that date rece ng sick leave benefits from the employer The stated reason for stopping work Attached to the form was a statement

or unemployment compensation. was "in vitro rtilization."

dated November 21, 2007, and signed by her attending physician, Dr. Wakim. In that portion of the form, y;
1/

Dr. Wakim i

cated that the

diagnosis was "2° infertil

she required weekly/daily treatment;

and the condition was not due to injury or sickness arising from her employment. The doctor further stated that Ms. Brown was not able

to perform her job continuously from November 12 through December 14, 2007, but the date she would be Ie to return to work would depend (AR 184.) The

on the results of a pregnancy test following IVF.

cover form was signed by Susan Ahlborn on behalf of National on November 28, 2007, and, according to the imprinted fax (AR 183.) record,

Defendant received both documents the same day.

23

According to the administrative record, on December 3, 2007, Ellen Ghirlanda, an employee in the STD Claims Department of rst

Reliance, called Ms. Brown and explained the policy definitions of illness and injury. When Ms. Brown confirmed that the treatments

she was undergoing were elective, Ms. Ghirlanda noted that "I told [her J policy does not cover elective procedures and we need [medical records] for our medical staff to review. disability covers illness & injuries." Again I explained that

(AR 40-41.)

Ms. Ghirlanda was corrected later that day by Rosetta Davis, a Claims Examiner, who pointed out that "elective medical procedure and surgery are not exclude[d] by the STD policy. determine if the claimant is truly disabled a electi ve medical procedure or elective surgery. aimant's medical records and refer However, we must er undergoing an I would request the

r medical review to determine (AR 40.) day and

is she disabled and the duration of the disability." Ms. explai Ghirlanda telephoned Ms. Brown t

following

that the medical department needed to review the complete

file and informed her twice that the "policy does not exclude elective procedures, but I need guidance weather [sic] this is considered an 'illness' according to the contract. is complete." (AR 41.) I will contact her when review

In a medical review performed the next day, December 5, 2007, Laurie Frate, a registered nurse,
24

commented,

"Per the attending

physician statement the She is undergoing in

aimant's primary diagnosis is tro fertilization. This is not cons (AR 34.)

il

y.
red

an illness and does not support work impairment." On December 7, telephone. Ms. Brown and Ms.

Ghirlanda spoke

in by litate

Ms. Brown i

her that the inj ections to

production of ova had begun on November 12 and that she was still self-injecting other medications. Brown] that based on the and not a disability. Ms. Ghirlanda "explained to [Ms. ss

cal [sic] we have this is not an il However,

we are going to request medical If medical

records from Dr. Wokim [sic] from 11/12/07 to present. [sic] supports all the s review the claim again ef

cts she has mentioned then we can y.
/I

disabil

In another calIon

r

11, Ms. Ghirlanda told Ms. Brown that despite a request to Dr. Wakim, First Reliance had not the medical records. (AR 41.) Ms. Brown told

Ms. Ghirlanda that she was pregnant. Ms. Frate reviewed the

Ie again and noted on December 20, 2007, was

that "Per review of the medical records submitted the cIa undergoing medications r preparation for in vitro fertilizat

The claimant underwent embryo transplant on 11/26/07. records does not indicate As noted in prior RN adverse reaction to the medicat

ew of

a diagnosis of infertility or preparation (AR 34.)

for implantation does not preclude work capacity."

25

On

January

7,

Ms.

Ghirlanda

explained

in

another

call

to

Plaintiff that there was no evidence in the medical records about complaints of side effects. When Plaintiff said "they" were not

sending the correct information and that it would "take forever" to get documentation from her physicians, Ms. Ghirlanda told her, "we will be sending a denial letter based on the in received. rmation we have

She can appeal the denial and forward additional medical h the appeal."
(AR 41-42.)

[records] w

On January 18, 2008, Ms. Ghirlanda wrote to Ms. Brown, stating that the insurer had received her claim "which indicated you were out of work and disabled due to In Vitro Fertilization, secondary to pregnancy." She pointed out that Defendant's policy with

National's the mate

fined "Disabled" to mean "the Insured is unable to do al duties of her job," and defined "Sickness" as meaning

"illness or disease causing disability which begins while an Insured. Sickness ludes pregnancy, childbirth, miscarriage or abortion, She then stated, "The In Vitro

or any complications there from."

fertilization procedure is not considered an illness according to your employer's policy." Moreover, the medical record did not (presumably

reflect any of the side effects from the "treatment" refe

ng to the IVF procedure) which would have prevented her from The request for disabili ty benefi ts beginning November 12,
(AR 154.)

working.

2007, was therefore denied.

26

The letter continued with what appears to be standard language outlining how Ms. Brown could request a review of the ision,

time frame in which she could expect a response, and the materials she was entitled to receive upon request, e.g., a copy of her claim file, the internal guidel and rules First Reliance used in

reaching its decision, and other information relevant to her claim. It also advised her about her rights under ERISA.
3.

(AR 155.)

scussion

the

January

18,

2008

letter:

Returning to the criteria set out in ERISA regulations as to the content of a letter denying a claim for benefits, we conclude the January 18, reasons r

2008 letter properly included the
the adverse det na t ion, i . e. ,

cific reason or "the in vitro

fertilization process is not considered an illness according to your employer's policy"9 and "the medical documents received list no complications of s to effects from your treatment." It referred

definitions of Disabl

and Sickness, i. e., the specific plan It stated that Ms.

provisions on which the

ermination was based.

Infertility is a medical condition which has been recognized in the case law as a disorder of the reproductive system. See, e.g., Erickson v. Ed. of Governors of State Colls ... No. 95-2541, 1997 U.S. Dist. LEXIS 13313, *12-*13 (N.D. IlL, Sept. ,1997). It is possible that the Policy could have icitly identified infertility as an illness and therefore unde ng treatment for it might have been covered by the short-term disability Plan. See, e.g., Egert v. Conn. Gen. Life Ins. Co., 900 F.2d 1032, 1037 (7 th Cir 1990), in which the court found that it was arbitrary and capricious for the administrator of a medical insurance plan to exclude treatment of infertility because the plan specifically identified the condition as an illness in its own internal guidelines. 27
9

Brown could request in writing a review of this decision and should provide with her request "any written comments, information portion of records or other While this

rtaining to your claim for benefits."

denial letter could have been more explici t, Ms. Brown

had already been advised by telephone at least as early as January 7, 2008, that if she also claimed that side effects from the

medications administered between November 12 and December 7, 2007, were disabling, First Reliance would need "documentation from her physi an that shows she complained side effects." (AR 41.) The

letter also included the necessary statement of Ms. Brown's rights under ERISA. letter We conclude, therefore, with that the January 18, 2008, ERISA requirements

substantially

complied

communicating an adverse decision.

See Miller v.

Am. Airlines

Inc., No. 10 1784, 2011 U.S. App. LEXIS 1462, *30-*36 (3d Cir. Jan. 25, 2011) (comparing cases and concluding that the letter sent to

Miller was legally deficient in part because it did not mention the aimant's speci c diagnoses or the precise in rmation that was

lacking and did not provide any instructions how Miller could achieve a favorable determination); Houser, 2010 U.S. Dist. LEXIS 128281 at * 30 (letter was adequate where it quoted specific plan provisions on which denial was based, informed plaintiff s in rmation, could submit

additional medical or vocational appeal rights);
28

and explained her

CA No. 08-5416, 2010 U.S. Dist. LEXIS 98646,

*

26 (D. N.J. Sept. 21,

2010) (there was "nothing cryptic" about a denial letter which sta t "the medical evidence on file does not support [Plaintiff's] inabili ty to perform, on a full time basis, the material and

substantial duties of any occupation for which he is qualified" and explained that he could "submit additional information or comments he deems pertinent for review.") Fourth Circu stated in As the Court of Appeals for the litan Life Ins. Co.

lis v. Met

Ellis has somehow. .come to the erroneous belief that fe is under an obligation to inform her of what she needs to tell MetLife in order to obtain disability benefits. That is not MetLife' s role as a fiduciary. MetLife must treat each claimant with procedural fairness, but, because it must also guard against improper claims, it is not its duty to af rmati vely aid claimants in proving their claims. MetLife' s denial letter. substantially complies with the applicable ERISA regulations in all material re s. 126 F.3d 228, 235
4·

(4 th Cir. 1997).

1 of the November 2007 application:

As noted

above, Ms. Brown did not appeal this decision until May 16, 2008, after had filed her second STD claim on May 6, 2008, which is During a conversation with Ms.

discussed in the following section. Ghirlanda on May 9, 2008,

Ms. Brown stated she did not appeal the could. Ms. Ghirlanda

prior decision because she did not know s

explained the appeal procedure (which had already been explained in the January 18, 2008 letter) and specifically noted that "she should
29

send in as much additional medical docs. her im. " Ms.
(AR 42.)

[as possib

] to support

Brown appea

the January 18 decision on May 16, s denial

2008,

stating that Defendant had indicated in

er (1) "IVF

isn't considered a sickness" and (2) benefits were denied in part because the medical evidence did not reflect that she had disabling side ef s from the medications she was taking as part of the IVF
(AR 85.)

preparation process. side ef

She

rted that she had mentioned

cts to her nurse and enclosed with her letter copies of her

pharmacist's drug monographs on which she had highlighted those side ef s she experienced. She concluded by reminding First Reliance

that she was willing to return to work in December but National was unable to accommodate her restriction to light work. Unfortunately, this appeal letter information which would have helped Ms. not enclose Brown's cause, type of namely,

medical evidence from Dr. Wakim regarding the purportedly disabling side ef disab on cts or any anation of why he conside Ms. Brown

November 12 through December 18. occasions consi r telephone the and

Ms. Brown had been told in writing that First ss a

numerous

Reliance did not

in vitro

rtilization

Sickness which could give rise to disability. and submitted a statement incorrect or from Dr. Wakim

Had Plaintiff sought explaining she had, why in that ct,

conclusion was

confirming
30

that

experienced debilitating side effects from the medications, it is possible Defendant would have reconsidered its initial decision. On May 27, 2008, after rst Reliance received Ms. Brown's

appeal, a letter was sent to her, enclosing an authorization allowing the Quality Review Unit to obtain updated medical information if it was needed during the review process. (AR 83-84. ) There is nothing

in the record indicating that Ms. Brown completed and returned the authorization. On May 29, 2008, Laura M. Quinn, a Senior Benefit called Ms. Brown to

Analyst in Defendant's Quality Review Unit, discuss her appeal. 42-43.)

Ms. Quinn explained that when she

reviewed the additional materials Ms. Brown provided wi th her appeal letter, she had decided that an independent fertility spec fore Ms. Quinn issued her assessment. list When

should review the file Ms. Brown "express

frustration" at this step, Ms. Quinn said she

would try to expedite the independent physician review in order to get a decision as quickly as possible and would call her wi th a status update. matern In answer to Ms. Brown's questions about STD coverage for y leave after her child was born, Ms. Quinn stated, "I advised rectly related to her IVF at the [

that her current pregnancy is of loss]
i

I cannot answer her question at this time as it will depend

on whether her impairment is supported at the time of her work stoppage." Ms. Brown sta that she understood. (AR 82.)

31

As promis

, Ms. Quinn promptly sent the file compiled through

May 29, 2008, to Medical Evaluation Specialists and asked for the ew be compl informed Ms. as soon as possible. (AR 43.) On June 9, she

Brown that she had received Dr. Abbasi's report and t based on her the initial

advised Ms. Brown by telephone on June 12, 2008, own review and Dr. decision by the C Abbasi's report, she had dec

ims Department denying benefits had been correct.

According to Ms. Quinn's notes, Ms. Brown terminated the call before had an opportunity "to discuss the facts and Policy provisions relevant to reaching [her] decision." up with a letter the same day. (AR 44.) Ms. Quinn followed

E.

The May 2008 Application and Denial

1.

May 6,2008 applica

on:

Meanwhile, Ms. Brown had

submitted a second application for STD benefits on approximately May
6, 2008, stating that she was unable to work because of her pregnancy

as of November 9, 2007.

(AR 152 - 15 3 . )

She further indicated that

she was still off work, but should be able to return on September 29,2008. Nolfi, The attending physician's statement, signed by Dr. James

indicated that she first consulted with him regarding her

pregnancy on January 31, 2008, and that she was unable to perform her job inasmuch as she could not Ii unable to stand continuously. the dates when more than 10 pounds and was

However, the form failed to provide Similarly, the part of the

was unable to work.
32

rm to be completed by her employer was

incomplete except for

National's name, address, and telephone numbers. Ms. Ghirlanda called to discuss the second claim wi th Ms. Brown on May 9, 2008. provide dates
10

She informed Plaintiff that

r doctor did not

for her disability and that employer section was Ms. Brown told Ms. Ghirlanda that she had tried to return accommodate her
1l

incomplete and unsigned.

been disabled since November 2007 and that when s a er her IVF procedure, National could not

limitations. She asked Ms. Ghirlanda to return t

forms to her.

On May 15, Ms. Ghirlanda spoke with Susan Ahlborn who had signed the first claim form on behalf of National. Ms. Ahlborn confirmed

that Ms. Brown had been released by her doctor for light duty on December 18, 2007, but that when National could not Ms. Brown was laid off the same day and was recei compensation. 12 (AR 42.) Between May 15 and s on the such work, ng unemployment

2.

The June 12, 2008 denial letter:

June 12, Ms. Quinn and Ms. Brown spoke several more t

10 This was the same call discussed in the previous section in which Ms. Brown and Ms. Ghirlanda discussed the process by which Plaintiff should the initial denial.

The Court has been unable to determine from the administrat record if the second set of claim forms or copies thereof were actually returned to Ms. Brown. They appear at AR 152-153 and no other revised or amended versions are in the record. This statement is in direct contradiction to Ms. Brown's representation in the benefits application that she was not receiving unemployment compensation benefits as of May 6, 2008. (AR 152.) 33

11

telephone, as summarized in the previous section.

r

call

on June 12, 2008, in which Ms. Quinn informed Ms. Brown that she was affirming the initial Ms. Brown. (AR 57-61.) sion denying benefits, Ms. Quinn wrote to In that ter, Ms. Quinn pointed out that

the appeals process had employee (Ms. Quinn)

lved decision making by a First Reliance

independent of the person who had made ), and that Dr. Wakim's file from June , had in

initial decision (Ms. Ghirl

2006 through April 24, 2008, along with records from Dr. Nol been reviewed by Dr. Abbasi, a board certified spe

alist

obstetrics and gynecology who was also certified in reproduct endocrinology and infertil Dr. Abbasi's findings, y. The internal review, incorporating to the conclusion that the cal

had 1

evidence did "not substantiate any complications following your in vitro fertilization or re you from performing the mate pregnancy that would have precluded al duties of your job at the t (AR 57.) of

your work stoppage (11/12/07).n Referring to the p letter that "in vitro consti tute a 'Sickness,' a Ms. Quinn explained that

ous statement in the January 18, 2008 rtili zation, in and of itself, does not

ng to the terms of the group Policy t i l purpose of the review "was to

in the medical data documents the presence of a physical or mental heal th condition that wou (AR 58. ) limi t your ability to perform your job.
II

Not only did the two surgical procedures occur on November 34

23 and 26, 2007, well a medical reports with

er Ms. Brown had stopped working, but the that there The were no complications had included

indicated either

associated

process.

review

consideration of a Medical Certification Statement for Employee's Own Illness (AR 102), but this document was given I tIe weight The

inasmuch as it was not signed or dated by any medical provider. restrictions indica in that document, i.e., no Ii

ing greater

than 10 pounds and no continuous standing, were again noted in a return-to-work form December 18, 2007 (AR 103), about which First

Reliance stated, "in our review of the medical data, we must concl that the level of the severity of your condition is unsubstantiated by the documentation from your treatment providers,
/I

largely because to either the

there were no complaints in the medical record relat

IVF process or the pregnancy itself. This position was corroborated by Dr. Abbasi, who had stated he had reviewed "the documentation and determined that no restrictions and limitations are supported by the records./I (AR 58-59.)

Ms. Quinn also referred to the documentation provided about the potential s weeks I stat effects of the drugs Ms. Brown had taken during the ng up to and immediately after the IVF process. that these materials, "of a gene She

c nature, do not support
/I

that you actually expe records did not

enced the side effects, any references
35

because the medical moreover, the

I ude

to

them;

specific conditions Ms.

Brown had identified were symptoms which (AR 59.)

"typically do not preclude work function." Based on this review of all the mater

Is Ms. Brown had submitted

and as confirmed by Dr. Abbasi's independent assessment, Ms. Quinn concluded that Ms. Brown had been capable of performing the material duties of r job as of November 12, 2007, that is, she was not

"Disabled" as that term was defined by the Policy. Moving on a discussion of t Reliance determined that Ms. May 6, 2008 application, First

Brown's coverage under the National

Policy had terminated effective November 12, 2007, and that any claim for disability beginning after that date would not covered because (AR 59. ) of

she had "never rejoined an 'Eligible Class' of employees."

Based on the definition of "Eligible Classes" in the Schedu

Benefits Provision of the Policy, the definition of "full-time" in the Definitions section thereof, and the evidence in the cIa file

that she never returned to work at National, Ms. Brown was not covered by the Policy after November 12, application, see 2007. Consequently, the second

ng STD benefits beginning on November 12, 2007, Ms. Quinn noted that

and based on her pregnancy, had been denied.

the claim decision was now final and that Ms. Brown had exhausted any administrative remedies available under the Policy. closed with a summary of Ms. Brown's ghts under ERISA. The ter

(AR 60-61. )

36

After Ms.

Brown engaged counsel to file suit,

r

attorney

attempted to argue that Plaintiff had been denied the opportunity to appeal the decision denying the claim she submitted on May 6, 2008. Richard D. Walsh, Director of the First Reliance Quali ty Review Uni t, wrote to Plaintiff's counsel on November 6, 2008, explaining that in Defendant's the first inion, the two claims were not separate even though she was sabled due to the in vitro only

indicated that

rtilization and ultimate pregnancy while the second cove a claim disability due to pregnancy. Because Ms.

Brown had

stated in both applications that her disability began November 2007, and because she never returned to work between the IVF process and the pregnancy/delivery period, First Reliance regarded dis ing conditions to be one event. allegedly

He rei tera ted the conclusion even if

that the second reason for denying the May 6, 2008 claim it were considered a separate claim covered by the (AR 54-55.)
3.

was that Ms. Brown was not

rst Reliance STD policy after November 12, 2007.

Discussion

and

con

usion:

Ms.

Brown's

second She

application form was incomplete and internally contradictory.

indicated in the first part of the form that her disability began November 12, 2007, when she was def i tely not pregnant, even though The part completed

that was the purported cause of her disability.

by Dr. Nolfi indicated that he had not begun treating Ms. Brown until
37

more than two months later, on January 31, 2008, and provided no dates when he considered that was continuously unable to work. The

portion to be completed by her employer was blank except for contact information. Ms. Brown was advised by telephone of these problems y as May 9, 2008, yet it appears she took Since it is clear from the second

with the claim form as ea no steps to rectify

omissions.

application that Ms. Brown believed that her disabili ty began at the time she Ie work to begin IVF treatments and would continue through rst Reliance

the deli very of her child, it was not unreasonable for

to consider both applications simultaneously as two aspects of the same purported disabili ty. by Ms. Quinn on May 29, current pregnancy . . In addi tion, Plaintiff had been informed

2008 that First Reliance considered "her

directly related to her IVF" and that coverage is

during her pregnancy "will depend on whether her impairment supported at Moreover, time of her work stoppage." we wi th Defendant that (AR 82.) Ms. Brown was

not

eligible in any case to submit the second application. Policy, cove

Under the

granted to an Insured terminates when she "ceases (Policy,
6.0.)

to be in a class eligible for this insurance."

Classes eligible for the insurance are limited to "active, full-time employees." (Id., 1.0.) As pointed out in the June 12,2008 er,

Ms. Brown conceded in the second application that she did not return to work for even one day after November 12, 2007.
38

We conclude that

denial of the application

bene

ts submitted in May 2008 was

neither arbitrary nor capricious and that First Reliance adequately conveyed the reasons for t
F.

denial in the letter of June 12, 2008. Arguments ted arguments in support of She

Plaintiff's_Remain~ng

Ms. Brown raises several re

her motion for summary judgment which we will address briefly.

first contends that the term "active" is never defined and that the definitions of "actively at work" and "active work" apply only when determining when coverage an employee becomes ef ive
(see

Policy, 6.0), but these cannot be used generally to define an Eligible Class. Therefore, the Policy is vague and, under princ les of trust

law and general contract construction, it should be construed in her favor. f.' s Brief at 14, ci ting Tester v. Reliance Std. fe Ins. -----------------

Co., 228 F.3d 273, 375 (4 th Cir. 2000), and Blue Shie 67 F.3d 53, 57 (4 th Cir. 1995).)

We need not address this argument in detail 13 because there is no question that as of November 12, 2007, Ms. Brown was no longer

]3 We agree with Defendant that under Third Circuit precedent, the general principles of contract interpretation and in particular the reasoning of Tester on which Plaintiff relies do not apply when a court is reviewing denial of benefits under a deferential arbitrary and capricious standard, but only when the standard is de novo. While the Third Circui t has applied the contra proferentem principle of contract construction in ERISA cases, it has done so only to decide if a plan granted discretion to the administrator. See Heasley v. Belden & Blake Corp., 2 F.3d 1249, 1257-58 (3d Cir. 1993). In Ceccanecchio v. Cont'l Cas. Co. No. 01-4468, 2002 U.S. App. LEXIS 21496, *19-*20 (3d r. Oct. IS, 2002), the Court mentioned this issue without resolving it, but noted that a number of other courts had 39

working "full-time" which means, Scottsdale
J

for a National employee at the

ility, she would have been working "40 hours during Even if one accepts for sake of argument

regular work week."

that "actively at work" and "active work" do not equate to "active," Ms. Brown still cannot show that she was a "full-time" employee at any time after November 9, 2007. In fact, the record shows that as

of December 18, 2007, she was laid off and receiving unemployment compensation. (AR 42.)

Plaintiff next argues that First Reliance or National should have informed her that she would not be eligible for STD benefits unless she worked at least one day a in December 2007. r she was allowed to return

However, she cites no case law or ERISA regulation (Plf.'s Brief at 12-13.) ERISA

which requires such notification.

does place certain fiduciary duties on the plan administrator to inform participants of such things as cancellation of the mat an,

al reductions in coverage, or remedies available to them if e.g., Peralta v. Hi (9 th Cir. of the 2005), ic Business
§

they are denied benefits. lnc., 419 F.3d 1064, 1071

ting 29 U.S.C.
that ERISA's on

1104 (a) (1) (B) fiduciary

in

support

principle

"broad plan

responsibilities"

encompass

obligations

the

administrator to timely notify employees of termination of their

concluded that the doctrine is inapplicable when invoking the arbitrary and capricious standard of review in considering the plan administrator's interpretation of the terms of a plan.
40

benefits.

However, this Court is unaware of any requirement that suggestions about

the employer or plan administrator must provi how the Met

ts might be reinstated after termination in addition to formation provided in the Policy or the P litan Life
See Ellis v.

supra

("it

is

not

[the fiduciary's] .")

duty to

affirmat Des

ly aid claimants

proving their c

The STD Plan

ion provided to National employees states that if an employee

has been on an approved leave of absence or on a temporary layoff, the insurance may be reinstated "if you return to Active Work with [National] within the pe Bene Nat s page," that I Envelope Co is, od of time as shown on the Schedule of wi thin six months. ion Short Term Dis (Doc. 30, Exh. C,

ility

Insurance As a

Program Certificate with Summary Plan Description, 5.0-5.1.) part

in the Plan, Ms. Brown is presumed to be familiar with
See Burstein

and understand her rights and obligations thereunder. v. Ret.

Research Found., 334 F.3d 365, 379 (3d Cir. 2003), citing 29 U.S.C.
§

1022(a) and (b), noting that the latter requires the summary plan ion to be "accurate" and "sufficiently comprehens
lik~ly

descri

"
r

because it is the document to which employees are most

to re

in obtaining information and making decisions about how they are affect by the terms of the plan. Since "Act Work" is a defined

term and reinstatement is p

sed upon return to "Active Work," Ms.
41

Brown's argument that First Reliance breached its failing to provi

duciary duty by

additional information to her is unavailing. rst Reliance act in rmation arbi trarily and (or not

Plaintiff next argues that capriciously in regard to the

communicated

communicated) to her concerning

denial of benefits.

That is,

Ms. Brown claims that Defendant's refusal to allow the "deficiencies" identified in t the ERISA provis notice to the

r to remediate

June 12, 2008 letter violates

n which requires benefi t plans to provide adequate an beneficiaries. (Plf.'s Brief at 13-14.) denying STD benef s may have been

In hindsight, the reasons more clear to Ms. Brown had

rst Reliance written two separate ision in the January 2008 letter

letters, the first affirming the

that undergoing IVF was not a sickness giving rise to disability and the second in considered was not in an was not covered. arbi trarily or together espe rming Ms. Brown that the second application would not it was incomplete or, alternatively, that she igible Class when became pregnant and therefore

We cannot find, however, that First Reliance acted iciously in considering the two applications ally since Ms. Brown herself stated in both

applications that her disability began November 12, 2007. as noted above, Ms. Quinn advis Ms.

Moreover,

Brown of the relationsh

between the two applications as early as May 29, 2008.

42

PIa the

iff also contends standard of care

t the language of the Plan violates imposed by ERISA upon a plan

special

administrator to discharge its duties "solely in the interests the participant and beneficiaries" of the Plan.
14-19,

(Plf.'s Brief at

citing 29 U.S.C. § 1104 (a) (1).)

As previously noted, First Reliance was the plan administrator for the National Plan and exercised final and binding discretionary authori ty over the decision making. Under ERISA provisions,
See 29

Defendant was

early a fiduci It was to a

with respect to

Plan.

U.S.C. § 1002 (21) (A). duties with respect

refore required to "discharge [its J plan solely in the rest of the

participant and beneficiaries," and to discharge those duties "with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use." "But in dis rging these 29 U.S.C. § 1104 (a) (1) (A) and (B). [the administrator Bicknell v. is] al so

duties,

required to abide by the plan documents." Martin *12 (3d Cir. . 10, 2011),

Lockheed

No. 10-1212, 2011 U.S. App. LEXIS 2715,

ting 29 U.S.C.

§

1104 (a) (1) (D).

Where

the administrator does so, "we cannot conclude that it breached any of its dut s as fiduciary." Bicknell id. Since we conclude that

both Defendant's interpretation

coverage requirements and its Ms. Brown's

application of the relevant provisions to the facts
43

case were consistent with the conclude there has been no

fined terms in the Policy, we further breach of its fiduciary duties in

discharging its duties under t Finally, substantial Ms. Brown

Plan. that her First Reliance it ignored to

contends

evidence

supporting

claim

when

refused

acknowledge that she was legitimately limi ted to only light duty work owing to the risks inherent in her IVF treatments and subsequent pregnancy. Specifically, she argues that both attending physicians' reports restricted her to work which precluded continuous standing and lifting more than ten pounds. Certi She also references the Medical

cation for Employee's Own Illness which indicates in the same

handwriting as that in Dr. Wakim's report that she was subject to the same restrictions. But, she argues, First Reliance "paid no

attention" to these documents in concluding that "the level of the severity of [her] condition is unsubstantiated by the documentation from [her] treatment providers." This failure to acknowledge her

limitations was an abuse of discretion, compounded by Defendant's reliance on Dr. and Abbasi's unsubstantiated are conclusion according that to "no the

restrictions records.
II

limitations

supported

While recognizing that ERISA plan administrators are not cial deference to the opinions of a treating

required to afford any physician, credit a

she contends that they may not arbitrarily refuse to aimant's reli le evidence,
44

including those opinions.

Because

there

is

no

evidence

to

contradict

r

physicians'

limitations to no work during the period she was undergoing IVF treatments and light duty after she was released to return to work on December 18, 2007, rst Reliance clearly acted arbitrarily and (Plf.'s Brief at 19-23.) it is necessary first to Dr.

capriciously in denying benefits.

In order to address this argument,

consider precisely what each physician stated in his records.

Wakim did state that Plaintiff was continuously unable to work from November 12 through December 14, discussed above, there is not this assertion. 2007. (AR 184.) However, as

ng in his medical notes to support there is no reference to any

By way of example,

conversation wi th Ms. Brown suggesting that being completely off work during that month was a requirement for undergoing the IVF procedure. Similarly, although Plaintiff was advised by telephone on May 9,

2008, that Dr. Nolfi's May 6, 2008 report was unacceptable, in part because it failed to identify the dates on which she was continuously unable to work, there is no evidence in the record that Plaintiff attempted to recti this omission. To adopt Ms. Brown's position

that these opinions should be controlling even though there is no support for them in the medical record would mean that any time a claimant's physician made such a statement, it must necessarily be accepted by the plan administrator. Plan v. Nord, 538 u.S. 822, 831 (2003)
45

See Black & Decker (ERISA does not impose a duty

on plan administrators to accord special deference to the opinions of treating physicians, on nor is there when a they heightened reject a burden of

explanation

administrators

treating

physician's opinion.) At the same time, we agree with Plaintiff that a plan

administrator may not "arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician." Stratton v. E.I. DuPont de Nemours & Co., 363 F.3d 250, 257-258 (3d Cir. 2004),

quoting Black

&

Decker,

id.

at

834.

However,

the

administrative record shows that far from arbitrarily refusing to credit the opinions of Drs. Wakim and Nolfi, First Reliance not only reconsidered their medical records from June 2007 through at least April 2008, but also provided those records to Dr. Abbasi who arrived at the same conclusion - Plaintiff was not disabled at the time she left National to undergo in vitro fertilization. As the Court of

Appeals stated in Stratton, "[aJ professional disagreement does not amount to an arbitrary refusal to credit." Id. at 258;

see also

Schlegel v. Life Ins. Co. of N. Am., 269 F. Supp.2d 612,627-628 (E.D. Pa. 2003) (reliance on recommendations of non-treating physicians

over those of treating physicians does not necessarily mean that denial of disability benefits was arbitrary and capricious.) Having considered each of Plaintiff's arguments for summary judgment in her favor, we find them unavailing.
46

We also conclude

that the review process

d not reveal procedural irregularities that

might give us reason to doubt Defendant's "fiduciary neutrality." Post, 501 F.3d at 165. Where, as here, the Plan vests the

administrator with discretion to determine eligibility for benefits, this Court is not free to substitute its own judgment for that of the plan administrator.
ting Lasser
v~

Houser, 2010 U.S. Dist. LEXIS 128281 at *22,

Reliance Std. Life Ins. Co., 344 F.3d 381, 384 (3d

Cir. 2003).

Inasmuch as Plaintiff has the burden at this stage of

showing that First Reliance abused its discretion by denying her disability benefits, we therefore grant summary judgment in favor of Defendant. An appropriate Order follows.

March

17,

2010

William L. Standish United States District Judge

47