Das v. UNUM Life Ins Co , 222 F. App'x 126 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-13-2007
Das v. UNUM Life Ins Co
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2408
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Das v. UNUM Life Ins Co" (2007). 2007 Decisions. Paper 1495.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1495
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________________________________
No. 05-2408
____________________________________
RITA DAS,
Appellant
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA and
THE PENNSYLVANIA HEALTHCARE GROUP INSURANCE TRUST
____________________________________
Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. Civil No. 04-0971
District Judge: The Honorable Timothy J. Savage
____________________________________
Submitted Under Third Circuit LAR 34.1(a)
January 30, 2007
____________________________________
Before: BARRY and ROTH, Circuit Judges, and
DEBEVOISE * , Senior District Court Judge
(Opinion Filed: March 13, 2007)
____________________________________
OPINION
____________________________________
*
Honorable Dickinson R. Debevoise, Senior District Court Judge for the District of New
Jersey, sitting by designation.
Debevoise, Senior District Court Judge
Appellant, Rita Das (“Das”), brought an action against defendants, UNUM Life
Insurance Company of America (“UNUM”) and The Pennsylvania Healthcare Group
Insurance Trust (“Healthcare Trust”), pursuant to the Employee Retirement Income
Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. §§1001- 1461. She alleged that
UNUM’s termination of her long term disability benefits under a UNUM group disability
policy (the “Policy”) was arbitrary and capricious because UNUM’s finding that her
permanent hearing loss in both ears does not render her totally disabled under the Policy
terms was not supported by substantial evidence.
The District Court denied Das’s motion for summary judgment and granted
defendants’ motion for summary judgment. Das appealed pro se, alleging that both the
administrative decision and the judgment of the District Court were erroneous as a matter
of law because each was based on a labor market survey that contained erroneous and
untruthful information. We will affirm.
I. Background
Das has a Bachelor of Science degree in chemistry, a Master of Science degree in
biochemistry, and a Ph.D. in molecular biology from Calcutta University. She began her
employment at Thomas Jefferson University as a Research Assistant Professor in
Neurosurgery in 1994. She worked as a bench scientist in a laboratory, studying human
brain tumors. Her job duties involved performing research, overseeing medical
2
technicians, and teaching laboratory techniques to medical students.
In 1995, Das began to lose her hearing and in 1997 began using hearing aids.
Within two years, her bilateral sensorineural hearing loss in both ears deteriorated to
approximately 96%, and in 1999, Das took a medical leave of absence and applied for
disability benefits.
The Healthcare Trust, administrator of Thomas Jefferson University’s long term
disability benefits program, had purchased a group disability policy from UNUM. The
Policy provided for two definitions of disability, one applicable to the first 24 months of
benefits, the other applicable to the period thereafter. For the first 24 months of benefits,
the Policy’s definition of disability is as follows:
You are disabled when UNUM determines that
- you are limited from performing the material and substantial duties
of your regular occupation due to your sickness or injury; and
- you have a 20% or more loss in your indexed monthly earnings due
to the same sickness or injury.
(S. App., Exh. C, p. 30 (emphasis in original)).
After 24 months of benefits have been paid, the Policy definition for disability
shifts to an “any gainful occupation” standard, and benefits will continue only if:
UNUM determines that due to the same sickness or injury, you are unable
to perform the duties of any gainful occupation for which you are
reasonably fitted by education, training or experience.
(S. App. Exh. C, p. 30 (emphasis in original)).
3
The Policy defines “gainful occupation” to mean “an occupation that is or can be
expected to provide you with an income at least equal to your gross disability payment
within 12 months of your return to work.” (S. App., Exh. C, p. 51). The test for the post-
24-month period is no longer focused on the insured’s ability to perform the duties of her
own occupation. It is whether she is able to perform the duties of any gainful occupation
for which she is reasonably fitted by education, training or experience.
UNUM determined, on the basis of information that Das supplied, that it was
unsafe for a totally deaf person, such as Das, to perform laboratory research. Thus,
UNUM found that she was limited from performing the material and substantial duties of
her regular occupation due to her deafness and awarded her benefits for the first 24
months. After paying Das benefits for two years, UNUM conducted a review, as required
by the Policy. It determined that there were a number of gainful occupations suitable for
Das given her hearing loss, and her education, training and experience, and that,
therefore, Das was no longer entitled to further benefits under the terms of the Policy.
On February 19, 2001, UNUM notified Das that to remain entitled to benefits after
24 months of payments, she must be unable to perform the material and substantial duties
of any gainful occupation for which she is reasonably fitted by education, training or
experience. In response, Das’s attending physician, Dr. Thomas Willcox, advised UNUM
that Das’s condition restricted her from working in “any environment where her safety is
compromised due to her hearing loss.” He further advised that Das had limited work
4
capacity because she “cannot communicate through auditory channels,” and that she
“needs to be able to lip read and write.”
On August 23, 2001, UNUM requested a Transferable Skills Analysis (“TSA”) to
further assess whether there was any gainful occupation suitable for Das. Based on the
TSA, UNUM identified four suitable gainful occupations: Biochemist, Microbiologist,
Geneticist and Writer, Technical Publications. UNUM notified Das of the results of the
vocational review and that her benefits would end effective December 27, 2001. It also
advised Das that she had the right to appeal the denial.
Das appealed, supporting her appeal with letters from Dr. Willcox and Dr. David
W. Andrews, her former supervisor. Dr. Willcox gave his opinion that Das is incapable
of working in Dr. Andrews’s research laboratory because of safety concerns. Dr.
Andrews, writing in the “capacity of Rita Das’s physician and as an Associate Professor
in the Department of Neurosurgery at Thomas Jefferson University” concluded that Das
“should not continue her work as a molecular biologist” because of “very serious safety
concerns.”
On January 25, 2002, after reviewing these letters, UNUM upheld its denial,
informing Das that i) Das had previously expressed an ability and interest in research
publishing in a non-laboratory setting, and ii) she was capable of working in other gainful
employment based on her education, training and experience. In response to Das’s
continued disagreement, UNUM ruled out any position requiring work in a laboratory and
5
ruled out the “writer, technical publications” position. It requested from its affiliate,
GENEX, a labor market survey in which two additional occupations were identified: on-
line college instructor and on-line scientific researcher.
In the course of this survey, GENEX communicated with a number of
organizations that assist deaf individuals with employment, including the Massachusetts
Commission for the Deaf, the New Jersey Department of Human Services, Gallaudet
University, the New Hampshire Department of Vocational Rehabilitation, the California
Department of Vocational Rehabilitation and the Pennsylvania Division of Vocational
Rehabilitation. For the most part, these agencies agreed in general terms that work in on-
line research and as an on-line instructor were occupations that “the insured could
potentially perform” or “were working areas of exploration” or “appeared to be good
choices.”
GENEX communicated with six employers about the position of “instructor, on-
line.” These included Pennsylvania State University, University of Missouri, University
of Phoenix, Seattle Pacific University, University of Massachusetts-Boston, and
University of Florida. These universities almost uniformly responded that such a position
existed, but in each case stated that it had no openings. One responded that it filled such
a position from within the university.
Finally, GENEX communicated with seven employers about the position of “on-
line editor, scientific literature.” In its executive summary of the results of its inquiries,
6
the GENEX report stated:
Six employers 1 were contacted about the position of on-line scientific
researchers. Of the six, five employers hire telecommuting scientific
researchers. One employer hired only on-site researchers. Three employers
had opening for on-line researchers. The five employers that hire online
research staff agreed that the claimant is a highly qualified applicant. Their
only concern was whether the (sic) she has access to the technology
necessary to perform the successful functions of the job.
GENEX set forth the results of its labor market survey in a June 10, 2002 report
(S. App, Exh. B, pp. 408, et seq.). Relying on the report, UNUM reaffirmed its rejection
of Das’s long term disability claim. It so advised Das by letter dated June 13, 2002.
Das persisted in pursuit of her claim, retaining Dale G. Lattimore, Esq., to
represent her. He obtained a copy of the GENEX report, and Das wrote to the various
entities with which GENEX had communicated. Her letters in each instance stated:
I am writing in connection of (sic) my difficulty in identifying a suitable job
according to my education and experience as a Molecular Biologist and I
was supplied with the name of your organization who help people with this
kind of profound hearing loss in identifying suitable jobs accordingly. I am
attaching a copy of my resume and a letter from my supervisor with whom I
worked until 1999. If you can help me in identifying a suitable job
according to my qualification and experience and a hearing loss of 96% in
both ears. Essentially the job that accommodate (sic) deaf molecular
biologist. Thank you.
(S. App., Exh. B, pp 362, et seq.).
These letters produced a few responses. The New Jersey Division of Vocational
Rehabilitative Services offered to assist Das compensate for her hearing loss and to
1
The executive summary referred to interviews of six employers. The preceding
paragraphs of the Report described seven employer interviews.
7
secure employment. The University of Missouri responded that it could only hire
University of Missouri faculty. O’Reilly & Associates, a publishing company, stated it
had no way to help Das identify a suitable job. Sage Publications invited Das to submit
an application for employment, advising her that “[s]hould a suitable opening later arise,
we may contact you to determine your interest at that time.” The University of Florida
advised Das that there was no person there by the name of Dean Norman, to whom she
had addressed her letter, and that in any event, the University did not provide the kind of
services she requested. The California Department of Vocational Rehabilitation
responded that it was not sure what Das was asking of it, commenting that since Das lived
in New Jersey, it was “not at all sure how California can help you.” The University of
Phoenix Online stated, “We have reviewed your resume and although you have
outstanding qualifications, we are unable to invite you to apply, at this time, based on our
current needs.”
In further pursuit of Das’s cause, on December 21, 2002, Mr. Lattimore wrote to
UNUM, noting the various agencies upon which the GENEX Report relied and stating,
“[m]y client has spent the past four months trying to follow up with those agencies. To
date she has been unable to identify or locate any job that exists with any of these
agencies that she would be capable of performing. In fact, Ms. Das has been unable to
locate any job at all that she can do with her disability.” Mr. Lattimore asked for “prompt
reconsideration of the decision to terminate Ms. Das’s long term disability benefits.” (S.
8
App., Exh. B, pp. 356, et. seq.).
UNUM responded to Mr. Lattimore’s letter on January 17, 2003, noting that the
material that Mr. Lattimore had submitted on December 21, 2002 addressed the
availability of jobs within the two pertinent categories, not the capacity of Das to perform
the jobs, which was the relevant question. UNUM stated that “[t]here has been no
information submitted that would indicate that either of these two occupations does not
exist within the national economy or that Ms. Das cannot perform these occupations due
to her hearing loss.” UNUM concluded that its previous decision to deny further benefits
was correct and upheld it, noting “[y]ou have exhausted all administrative remedies in
regard to Ms. Das’s appeal for disability benefits.” (S. App., Exh. B, pp. 346-47).
II. District Court Proceedings
Following the final rejection of her claim, Das brought this action under ERISA,
asserting that the termination of her long term disability benefits was arbitrary and
capricious because UNUM’s finding that her permanent hearing loss does not render her
totally disabled under the Policy terms was not supported by substantial evidence. Prior
to ruling on UNUM’s and Das’s cross-motions for summary judgment, the District Court
struck from the record five affidavits that Das submitted in support of her case.
The affidavit of David W. Andrews, M.D., FACS, Professor in the Department of
Neurosurgery at Jefferson Medical College, stated that he had worked with Das for a
period of nine years when she was a post-doctoral fellow and later when she was an
9
Assistant Professor in his Department. He described her work for him and then gave
various opinions:
Dr. Rita Das has never had any experience on (sic) on-line teaching and she
is therefore not suited for any sort of on-line molecular biology instruction.
I cannot fathom how she could teach this subject online or in a class, for
either molecular biology undergraduate or graduate students, since bench
research is the only training or experience she has had.
By my review of her resume, and in my nine years of working with her, it is
obvious that Dr. Das has no experience as a classroom teacher or instructor,
nor as an on-line researcher. I do not see how she could be employed as an
on-line researcher, since all of her research experience has been in a
laboratory. She would be poorly equipped to assume a position involving
these latter avenues of employment.
(Appellant’s Reference 5).
The affidavit of Madhu Kalia, M.D., Ph.D., M.B.A., Professor in the Department
of Biochemistry and Molecular Pharmacology at Jefferson Medical College, contained
the following opinions:
I have reviewed the credentials of Dr. Rita Das and note that her training
and experience is in the field of molecular laboratory research, with no
experience in classroom teaching. Her involvement with students has been
limited to the lab, where she instructed a few students in lab techniques.
Dr. Das is a native of India, and while her command of the English
language is adequate for scientific work in the laboratory, I know that she
would have considerable difficulty writing class notes, preparing handouts,
writing exam questions and instructing students on-line.
On-line instruction requires exceptional language skills as well as training
and experience as a teacher in a medical or graduate school setting, and I
note that Dr. Das has none of this experience and training.
For these reasons, it is my professional opinion that the occupations of on-
10
line college instructor or on-line scientific researcher are unsuitable
occupations for her.
(Appellant’s Reference 5).
Besides these two affidavits, Das submitted affidavits of similar purport of
Professor E. Premkumar Reddy of Temple University School of Medicine, Professor
Subhasis Biswas of The University of Medicine and Dentistry of New Jersey and another
one from Dr. Andrews. The District Court struck all of these affidavits.
Addressing the cross-motions for summary judgment, the District Court defined its
task as “determin[ing] whether UNUM abused its discretion in finding Das, based on her
education, work experience and training, is able and qualified to work in the alternative
job positions UNUM identified for her.” (Appellant’s Ref. 1, Opn. p. 2). Noting that the
denial of benefits under an ERISA qualified plan must be reviewed using a deferential
standard and that where the plan administrator, as here, has discretion to interpret the plan
and to decide whether benefits are payable, the fiduciary’s exercise of discretion is judged
by an arbitrary and capricious standard, Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 115 (1989), the District Court also noted that where an insurance company funds,
interprets and administers a disability plan, the resulting self interest inherent in the
relationship requires closer scrutiny. Pinto v. Reliance Std. Life Ins. Co., 214 F.3d 377(3d Cir. 2000). The District Court applied the Pinto heightened review standard.
The District Court’s opinion recited the extensive efforts that UNUM itself and
through GENEX made to determine if Das was capable of performing gainful
11
occupations despite her disability, and the opinion recited the efforts that Das made to
obtain employment in positions UNUM had determined Das was fitted to perform.
Having reviewed the evidence upon which UNUM relied, the District Court
concluded:
UNUM interpreted its policy in the context of its evaluation of Das’
vocational abilities and former job duties. This interpretation of the
policy’s “any occupation” provision, even though it disfavors the insured,
was reasonable. Because Das had the ability to perform the identified jobs,
UNUM’s application of its policy to those facts was not arbitrary and
capricious.
(Appellant’s Ref. 1, Opn. p. 19).
The District Court further held that UNUM reasonably interpreted its policy to
require only that it demonstrate that positions were available in the national economy for
which Das, with her disability, is fitted by reason of her prior work experience, training
and education to perform. Das’s inability to obtain a position was not controlling.
Finally, the District Court rejected Das’s contention that procedural irregularities
required that the Court lessen its deference to UNUM’s decision making. She had argued
that UNUM’s Bayard’s desire to be kept “in the loop” by GENEX demonstrated a lack of
independence by GENEX. She also argued that GENEX’s conducting successive surveys
suggested goal-oriented studies designed to produce a finding of no disability. Das
contended that UNUM provided GENEX with flawed and incomplete information about
her prior job duties and failed to communicate with her former supervisor to determine
whether she could perform the two alternative occupations. The District Court rejected
12
each of these criticisms as unwarranted.
Based on its findings and conclusions, the District Court denied Das’s motion for
summary judgment and granted UNUM’s motion for summary judgment. Das appealed
pro se.
The District Court had jurisdiction over this action pursuant to 29 U.S.C.
§1132(a)(1)(B). We have jurisdiction to review the final judgment of the District Court
pursuant to 28 U.S.C. §1291.
III. Discussion
Das asserts three grounds for challenging the judgment of the District Court: i) the
District Court erroneously struck the five affidavits that Das submitted in support of her
motion for summary judgment and in opposition to UNUM’s cross-motion; ii) the
GENEX report upon which UNUM’s determination and the District Court decision were
based was replete with false and erroneous information; and iii) the Court’s failure to
consider the affidavits and its reliance on a false and erroneous report require that
summary judgment in favor of UNUM be vacated.
The District Court’s ruling as to the admissibility of evidence is reviewed under an
abuse of discretion standard. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 749 (3d Cir.
1994). Das’s contention that the GENEX report is replete with false and erroneous
information is based primarily upon factual material presented neither to UNUM during
the administrative proceedings nor to the District Court. Whether it may be considered on
13
this appeal presents a question of law. Abnathya v. Hoffmann - La Roche, Inc., 2 F.3d
40, 48, n.8 (3d Cir. 1993). With respect to the granting of UNUM’s motion for summary
judgment, we cannot affirm unless, viewing the facts in the light most favorable to the
non-moving party, we are convinced that no genuine issue exists as to any material fact
and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
It will be assumed, without deciding, that the professors who provided the five
affidavits were qualified to give opinions as to whether Das was qualified to be an on-line
teacher in her field. Such an opinion was relevant to the investigation in which UNUM
was engaged, and undoubtedly UNUM would have received and considered the affidavits
had they been submitted to it. However, the affidavits were not submitted to UNUM, and
UNUM relied on information about Das’s teaching qualifications that Das herself had
submitted and which had been submitted on prior occasions by her supervisors.
Judicial review of an administrative decision is limited to the evidence presented to
the administrator. Keating v. Whitmore Mfg. Co., 186 F.3d 418, 421-22 (3d Cir. 1999).
ERISA claimants must exhaust their administrative remedies. Harrow v. Prudential Ins.
Co. of Am., 279 F.3d 244 (3d Cir. 2002). A person appealing a denial of disability
cannot use the district court as a vehicle to submit evidence he failed to submit to the
ERISA plan administrator. Thus, the District Court properly excluded the five affidavits
expressing expert opinions not submitted to UNUM.2
2
Supplemental material might be admissible at the District Court level if it were in
support of a contention that the administrator was acting in a manner requiring a heightened
14
In her brief, Das makes numerous claims that the GENEX Report on which both
UNUM and the District Court relied was replete with “incorrect information and
erroneous and untruthful findings.” (Das’s Brief at 3). Because the District Court relied
totally on the GENEX Report, Das argues, its judgment is erroneous as a matter of law.
Although its conclusions were challenged, the GENEX Report was not challenged
as factually erroneous and false in the District Court. This is a new charge, raised on this
appeal for the first time. It is based largely upon generalized characterizations critical of
the Report that Das expresses in her brief. She refers to telephone conferences and e-mail
communications she has had with persons named in the Report. She describes attempts
she has made to communicate with persons or entities named in the Report. She recites
that communications she sent to entities named in the Report have been returned. She
describes at considerable length her unsuccessful efforts to verify the information
GENEX set forth in its Report. Her independent investigation is the basis for her
contention that much of the information in the Report is false.
Based upon her investigations Das urges that the “Honorable third circuit may note
that UNUM and GENEX have abused the trust of Justice system as District Judge
Honorable Timothy J. Savage, Jr. has completely relied on their survey to give his order
to deny the disability benefit of a disabled person with 98% hearing loss and causing a lot
[of ] inconvenience for a totally hearing impaired person with an untruthful survey.”
standard of review. Pinto v. Reliance Std. Life Ins. Co., 214 F.3d 377 (3d Cir. 2000). The
affidavits that the District Court struck did not address that issue.
15
(Das’s Brief at 17).
We recognize that Das is proceeding pro se, which undoubtedly explains why she
has submitted on this appeal and relied upon material that we cannot consider. Neither
her argument that the GENEX Report was erroneous and false nor the allegations
supporting that argument were presented to the District Court (proceedings in which Das
was represented by counsel). “[A] failure to raise an issue in the District Court
constitutes a waiver of the argument.” Brenner v. United Bhd. of Carpenters and Joiners,
927 F.2d 1283, 1298 (3d Cir. 1991).
Having determined that the District Court correctly struck the five affidavits that
Das sought to submit, and that Das waived her argument that the District Court (and
UNUM) relied on an erroneous and false GENEX Report, we turn to Das’s remaining
contention that the District Court erred in granting UNUM’s motion for summary
judgment. We have reviewed the extensive record in this case and, exercising plenary
review, affirm the judgment of the District Court substantially for the reasons set forth in
Judge Savage’s comprehensive opinion.
IV. Conclusion
For the foregoing reasons, we will affirm the order of the District Court.
16