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POULOS v. MOTOROLA LONG TERM DISABILITY PLAN

April 21, 2000

KOULA POULOS, PLAINTIFF,
V.
MOTOROLA LONG TERM DISABILITY PLAN, DEFENDANT.



The opinion of the court was delivered by: Bucklo, District Judge.

MEMORANDUM OPINION AND ORDER

Koula Poulos was 59 years old in 1998 when Motorola cut off her Long Term Disability Plan benefits after thirteen years, determining, despite her being diagnosed with, among other things, degenerative arthritis, osteoporosis, and depression, that she was not disabled. She appeals this determination of the Plan administrator, and I reverse it, ordering her benefits reinstated.

I.

Ms. Poulos was born in Greece in 1940. She came to this country in 1962, and speaks little English. She did manual labor for most of her working life, most recently, during 1983-85, as an assembly line worker for Motorola. She was injured in 1985 and received benefits under the Motorola Long Term Disability Plan ("the Plan") from 1985 to 1998. She also qualified upon appeal for Social Security Disability payments ("SSI") in 1989 after initially being rejected for those benefits. The basis of her disability claims was that she suffered a spinal impairment that caused her severe back pain and limited her ability to move and work. This was attested to by Dr. Spiro Stamelos, her primary care physician, who has treated her over the last decade. He stated that she suffered from severe osteoporosis (bone weakening), pathological fractures, arthritis, weakness, and clinical depression. He also noted that, at age 59, "we have very little chance of re-educating and possibly reversing her process."

In 1998, Motorola terminated her disability benefits because it concluded that she was not disabled. Motorola's decision was based upon the determination of CORE, a medical review agency it had recently engaged in part to assess disability claims. CORE's Medical Director, Dr. J.D. Beavers, did not examine Ms. Poulos in person, but looked at Dr. Stamelos' reports in her case file. Dr. Beavers decided that Ms. Poulos was not disabled because Dr. Stamelos reported that she could (1) lift up to 10 pounds frequently and 10-25 pounds occasionally; (2) repetitively perform fine finger movements, (3) reach above her shoulders and move her head around, (4) sit for up to two hours, stand for up to one hour, and walk for up to one hour. Motorola informed Ms. Poulos of the decision to deny further benefits by phone and in writing.

She appealed, and Motorola forwarded her file to an orthopedic physician, Dr. Frank Nisenfeld, who also did not examine her personally, but concluded from her file that her limitations as described by Dr. Stamelos were not consistent with total disability from any job. Dr. Stamelos ordered a nuclear medicine bone scan, which came back with "no significant abnormalities," but noted some degenerative changes in the extremities, although remarking that her condition had not essentially changed since 1991.

Ms. Poulos appealed again, and Motorola arranged for an actual in-person examination by Dr. Slodoban Vucicevic, an orthopedic surgeon, who concluded that "[t]his patient presents severe limitation as far as her ability to go back to working regular duties." Dr. Vucicevic said that she was capable of performing light duty in sitting and standing positions and might be able to do sedentary work. He noted degenerative arthritic changes, osteoporosis, complete inability to squat and reduced ability to stoop. He stated that she was an "interesting" patient. Subsequently, in deposition testimony, Dr. Vucicevic explained that he thought Ms. Poulos might be "to some degree" improved, and stated that "whether she can be retrained remains to be seen, and . . . that doing some clerical work is feasible. . . . ." He said that a "trial" or attempt to place her in some appropriate job rather than a specific release to return to a particular occupation "would be a reasonable way to look at it to see what she can and cannot do and go from there."

After Dr. Vucicevic's report, Motorola again denied Ms. Poulos' appeal. She asked for reconsideration, including with this request a report by Susan Entenberg, a certified rehabilitation counselor, stating that in view of Ms. Poulos' physical condition, age, lack of work history or English language skills, Ms. Poulos "is unable to perform any jobs at the sedentary level, sedentary with sit/stand options or light level." Motorola did not respond, and Ms. Poulos filed this lawsuit. Both parties now move for summary judgment. They agree that the relevant evidence is in and that there is nothing for a jury to try. Each party thinks the evidence in the record supports judgment as a matter of law in its favor.

II.

The first issue is the standard of review. The Plan is an employee welfare benefit plan as defined in ERISA. 29 U.S.C. § 1002(1). Plenary or de novo review is presumed, Herzberger v. Standard Ins. Co., 205 F.3d 327, 330 (7th Cir. 2000), but where the plan gives the administrator discretion to interpret the plan terms or determine benefits eligibility, courts review the denial of benefit claims using the "arbitrary and capricious" standard. Carr v. The Gates Health Care Plan, 195 F.3d 292, 294 (7th Cir. 1999); see Firestone Tire and Rubber v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). If the administrator makes an informed judgment and articulates an explanation for it that is satisfactory in light of the relevant facts, then the administrator's decision is final. Loyola Univ. of Chicago v. Humana Ins. Co., 996 F.2d 895, 898 (7th Cir. 1993). Under the arbitrary and capricious standard, I do not decide whether I would reach the same conclusion as the Plan administrator, Mers v. Marriott International Group Accidental Death and Dismemberment Plan, 144 F.3d 1014, 1021 (7th Cir. 1998). Instead, I am only to determine if the decision was downright unreasonable. Id.

The Plan at issue here gives Motorola's Administrative Committee the "express authority" to "construe and interpret the Plan, decide all questions of fact and questions of eligibility, and determine the amount, manner and time of payment of any benefits hereunder, all in the sole discretion of such decisionmaker." Section (8)(2)(b). This is equivalent to language found to grant discretion in Carr, 195 F.3d at 295, and similar to the "safe harbor" language the Seventh Circuit says will provide for arbitrary and capricious review in Herzberger, 205 F.3d 327, 330 ("Benefits under this plan will be paid only if the plan administrator decides in his discretion that the applicant is entitled to them.").

Ms. Poulos argues against the use of the discretionary standard on the grounds that Motorola acted as her "adversary," first because it initially terminated her benefits without an in-person examination and rejected the views of her treating doctor. However, on appeal she received several in-person examinations, and Motorola's rejection of Dr. Stamelos' conclusions does not show that it is so adverse to her as to forfeit deferential review.

III.

The question before me, then, is whether the Committee was "downright unreasonable" to conclude that Ms. Poulos is not "disabled" under the Plan. The Plan language says that she is disabled if her condition renders her unable "to perform all of the normal duties of any occupation or employment for wage or profit for which ...


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