Bekiroglu v. Paul Revere Life Ins. Co.

223 F.Supp.2d 361

Haluk BEKIROGLU, Plaintiff, v. The PAUL REVERE LIFE INSURANCE COMPANY, Defendant.

No. CIV.A.01-10514-PBS.

United States District Court, D. Massachusetts.

October 16, 2002.

Stephen L. Raymond, Haverhill, MA, for Haluk Bekiroglu, Plaintiff.

William J. Ritter, MacCarthy, Pojani & Hurley, Mark S Foss, MacCarthy Pojani & Hurley, LLP, Joseph M. Hamilton, Mirick, O'Connell, DeMallie & Lougee, Worcester, MA, for Becker College Group Long Term Disability Plan, Becker College Group Life and AD & D Plan, the Paul Revere Life Insurance Company, Defendants.

MEMORANDUM AND ORDER

SARIS, District Judge.

INTRODUCTION

The plaintiff, Haluk Bekiroglu, brings this action under the Employee Retirement Income Security Act of 1974 ("ERISA"), § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), to challenge the defendant Paul Revere Life Insurance Company's decision to deny Long Term Disability insurance coverage. Both parties have filed cross-motions for summary judgment. After hearing, the Court ALLOWS Paul Revere's Motion for Summary Judgment and DENIES Bekiroglu's Motion for Judgment on the Administrative Record.

FACTS

The following facts, gleaned from the administrative record, are undisputed except where otherwise stated.

A. Professor Bekiroglu

Bekiroglu worked at Becker College in Worcester, Massachusetts as a full-time Professor from September 1, 1997 to May 31, 1999, and as Division Director for Business and Professor of Management and Business for the final year of his employment. He has a Ph.D. in Industrial Engineering. While working in these positions, Bekiroglu owned and operated a Burger King restaurant, which went out of business on December 31, 2000. He was scheduled to go back for a faculty appointment (not the director position) for the academic year 1999-2000. From November 12 to 14, 1998, Bekiroglu was hospitalized for congestive heart failure.

Through Becker College, Bekiroglu was insured by the defendant, Paul Revere Life Insurance Company. On May 31, 1999, at the age of 55, plaintiff submitted a claim for disability benefits due to his congestive heart failure, severe hypertension, diabetes, proteinuria¹, cardiomyopathy, hypercholesterolemia, and sleep apnea, as diagnosed by his physician, Elizabeth H. Johnson, M.D.. Dr. Johnson also indicated plaintiff suffered from symptoms of dyspnea (difficulty breathing), exercise intolerance, fatigue and edema (excessive tissue fluid). Plaintiff has not worked at Becker College since filing his application for disability coverage. His claim was initially denied on November 18, 1999. Plaintiff was awarded Social Security Disability, in the amount of $1335.00 per month beginning November 1999.

B. The Plan

Plaintiff's Long Term Disability Plan (LTD Plan) provides benefits for: "(1) total disability from any occupation; (2) total disability from the employee's own occupation; and (3) residual disability." The plan provides:

Totally disabled from the employee's own occupation or total disability from the employee's own occupation means:

1. because of injury or sickness, the employee cannot perform the important duties of his own occupation;

2. the employee is receiving Doctor's Care [this may be waived];

3. the employee does not work at all.

C. Job Demands

The administrative record contains differing descriptions of Professor Bekiroglu's job demands and his physical capacity. Plaintiff describes his occupation as Director and Professor, Management and Business. Becker College's Human Resources Department has on file a description of the responsibilities of Division Director (which the parties agree is the appropriate position for review of plaintiff's job responsibilities). The description includes teaching two courses per semester, determining faculty teaching loads, providing student advisement, and various administrative responsibilities. Physical requirements include "instruct, dial a phone, hear at normal speaking levels, keyboard usage, sit, stand, talk/speak in person and over the phone, type, vision acuity and peripheral, walk and write." It adds as a special requirement the ability to travel between campuses as necessary. Mental requirements include: "Advise, coordinate, communicate thoughts clearly and in writing, debate/convince others, diagnose problems or issues, analyze, evaluate faculty performance, evaluate technical problems, interpret, use judgment, remember long and short term information, research, observe, organize, plan, read, speak and supervise."

With respect to weight requirements, in the "Employer's Statement," Kathleen M. Garvey, Associate Vice President for Human Resources at Becker College, lists "Sedentary (10 lb. max)" as plaintiff's job requirement. In the "Claimant's Statement" section, dated May 31, 1999, Bekiroglu indicates that his job requirement is "light (20 lbs)." He also said he must lift a podium weighing 30 lbs. He states that he sits 3 hours at a time and 6 hours per day, stands 3 hours at a time 5.4 hours per day, and drives 1.5 hours at a time 3 hours per day.

D. Medical Evaluations

In the doctor's portion of the claim form signed May 19, 1999, Dr. Johnson, the treating physician, an internist, submitted the "Attending Physician's Statement" that stated that plaintiff's symptoms of dyspnea, exercise intolerance, fatigue and edema "make it very difficult for [him] to function at a full level." In response to the question "Has patient been released to work in his/her occupation?", the "yes" box is marked. Dr. Johnson left blank the question "[w]hen should the patient be able to return to work?" Describing plaintiff's job capacity as "sedentary — 10 lbs. max, Dr. Johnson marked the American Heart Association's Functional Capacity assessment as Class 2 (slight limitation)." Class II is defined: "Patients with cardiac disease resulting in slight limitation of physical activity. They are comfortable at rest. Ordinary physical activity results in fatigue, palpitation, dyspnea, or anginal pain." Plaintiff's "Cardiac Residual Functional Capacity Questionnaire" (Cardiac Report) (completed by Dr. Johnson on March 31, 1999), indicates that plaintiff is both "capable of low stress jobs" and that "moderate stress is okay." He could walk 1-2 blocks without rest or severe pain. However, Dr. Johnson also stated "High stress jobs interfere with optimal physical functioning," adding "there is much anxiety associated with his health problems." In her opinion, he could sit for two hours, stand for less than two hours, and never lift more than 10 lbs. No mention is made about high stress stemming from the job.

Paul Revere hired a medical consultant to perform a cardiovascular review, Dr. Pollock, who on July 13, 2000 agreed with Dr. Johnson that plaintiff's cardiac functional capacity is "class 2 [slight limitation]." Based on a review of the medical records, Dr. Pollack agreed that Plaintiff has advanced diabetes with end-organ involvement, nephropathy with 50 percent reduction in renal function and poorly controlled hypertension "despite very aggressive medical therapy." However, based on stress tests (conducted prior to his congestive heart failure in November 1998), he concluded that plaintiff could engage in sedentary and light work with "a good safety margin." Subsequent tests at the time of hospitalization in November 1998 confirmed, in his view, no "significant coronary artery disease." Dr. Pollock continued, "The medical record available for review, reviewed in their entirety makes AP's [attending physician's] caution to limit claimant to sedentary duties difficult to support."

E. Burger King

Defendants conducted video surveillance of the plaintiff in July and August 1999. Plaintiff has been videotaped behind the counter of the Burger King he owns, serving customers, cleaning and stacking trays, and working a grill. This lasted seventeen minutes. Videotapes also show him operating a motor vehicle; cleaning the windshield of his car; and loading groceries, including a full watermelon, into his car. He was seen running to get out of the rain.

According to Paul Revere's claim representative, Mary Koval, plaintiff admitted that he was working one time weekly at Burger King, but stated that he was drawing no income. In an affidavit, Plaintiff denies he said that he worked there once weekly; rather, he said he told her he went to (not worked at) his Burger King once weekly.²

F. The Appeal

On July 17, 2000, defendant rejected Professor Bekiroglu's appeal. The denial letter is inconsistent, pointing out that the position of Division Director was "sedentary in nature" and later that it is "light duty in nature." It emphasized that Becker College was willing to make accommodations to assist Bekiroglu, which he declined, and that the video undermined his claim of severe physical limitations. Defendant concluded that no documentation contained within the file would support Mr. Bekiroglu's inability to perform the important duties of his own occupation.

DISCUSSION

I. Standard of Review under ERISA

A district court reviews ERISA claims arising under 29 U.S.C. § 1132(a)(1)(B) de novo unless the benefits plan in question confers upon the administrator "discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Rodriguez-Abreu v. Chase Manhattan Bank, 986 F.2d 580, 583 (1st Cir.1993) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)). If the plan clearly gives such discretionary authority, then the administrator's decisions are subject to "a deferential `arbitrary and capricious' standard of judicial review." Recupero v. New England Tel. & Tel. Co., 118 F.3d 820, 827 (1st Cir.1997) (citing Firestone, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80).

The Plan provides:

The Paul Revere Life Insurance Company is the Claims Administrator for benefits contained in the group policies it has issued to your employer. As such, it...