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POKOL v. E.I. DUPONT DE NEMOURS & CO.

March 20, 1997

BRENDA POKOL, Plaintiff,
v.
E.I. DUPONT DE NEMOURS AND CO., INC., et. al, Defendants.



The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 This is an action brought by plaintiff Brenda Pokol ("Pokol") against the defendant E.I. du Pont de Nemours and Company, Inc. total and permanent disability plan (the "DuPont Plan"), John Doe, the designated unknown defendant intended to be administrator to the DuPont Plan, John Does 1 through 6, designated unknown defendants intending to be the Board of Benefits and Pension of the DuPont Plan, and E.I. du Pont de Nemours and Company, Inc., the defendant fiduciary of the DuPont Plan ("DuPont") (collectively, the "Defendants"). Jurisdiction is alleged pursuant to 29 U.S.C. § 1132(e).

 Pokol seeks to overturn a denial of disability benefits by her former employer, DuPont. Pokol seeks, inter alia, damages in the amount she would have received had her initial application for total and permanent disability benefits been granted, as well as a declaratory order holding Defendants responsible for future total and permanent disability benefits.

 On 1 February 1996, Pokol filed a complaint (the "Complaint") in this court. *fn1" DuPont submitted, pursuant to Rule 12N, Appendix N ("Rule 12N") of the General Rules for the District of New Jersey, a motion for summary judgment (the "Motion for Summary Judgment"). *fn2" For the reasons set forth below, the Motion for Summary Judgment is granted.

 Facts3

 A. Parties

 1. Pokol

 a. Employment History

 Pokol began working at Dupont on or about 23 April 1979. Complaint, First Count, P 1. Pokol was employed as a machine operator at the DuPont printing and publishing facility located in Parlin, New Jersey. See 22 June 1993 Medical Evaluation Report ("22 June 1993 Medical Report"), attached as Exhibit 9 to Defendants' Appendix. Pokol was a participant and beneficiary of the DuPont Plan, an employee welfare benefit plan falling within the intent and coverage of Section 3(1) of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(1). Complaint, Venue and Parties, P 3. Pokol applied for benefits pursuant to the Dupont Plan in 1993. Complaint, First Count, PP 6-8. The application and subsequent appeals for benefits were denied. Id., PP 8, 11, 14.

 Pokol suffered from numerous medical problems and was frequently absent from work. Between 1 January 1989 and 25 November 1992, Pokol was out of work for approximately 464 days. Ramirez Affidavit, P 11. Pokol was absent from work at DuPont from 16 February 1993, Ramirez Affidavit, P 11, until she was terminated by DuPont on or about 15 February 1994. Complaint, First Count, P 9.

 b. Medical History

 Pokol began suffering back and arm pain in 1985 while she was a machine operator at DuPont. Complaint, First Count, P 2. In 1990, Pokol suffered injuries in a car accident. Id.

 Pokol was hospitalized in December of 1991 due to cervical symptoms and was diagnosed with Spondylosis with a herniated disc at C5-C6. Id. Pokol underwent a dissectomy and fusion of the herniated discs. Id.

 Pokol underwent surgery in May 1992 "to excise a granuloma of a stitch in her neck which was left from a prior surgery." Id., P 3. In December 1992, Pokol underwent an MRI which revealed a disc desiccation at L2-L4. Id. Pokol was treated by an orthopedist for epicondylitis in the left upper extremity and a neurologist which suggested the presence of fibromyalgia. Id., P 4. Pokol was additionally diagnosed with Post-Traumatic Stress Disorder by a psychologist in March 1993. Id., P 5.

 2. The DuPont Plan

 a. Purpose

 The DuPont Plan was adopted on 28 February 1978 and amended on 1 October 1991. See DuPont Plan, attached as Exhibit 3 to Defendants' Appendix. The stated purpose of the DuPont Plan is:

 
To protect eligible employees against substantial loss of earnings in the event of total and permanent disability resulting from injury or disease by supplementing benefits payable under other Company and government-sponsored programs.

 See DuPont Plan at 1.

 The DuPont Plan defines "totally and permanently disabled" as follows:

 
An individual shall be considered "totally and permanently disabled" if the Board of Benefits and Pensions [(the "Board")] finds that he is totally disabled by injuries or disease and presumably will be totally and permanently prevented from pursuing any gainful occupation....
 
The determination of whether the employee is totally or permanently disabled shall be made on the basis of his condition immediately prior to his termination of service with the company, and an employee who becomes totally and permanently disabled after termination of service with the company will not qualify for benefits under this [DuPont Plan].

 See DuPont Plan at 2.

 DuPont delegated the administration of the DuPont Plan to, and vested all authority in, the Board, which is granted discretion in conducting its activities under the DuPont Plan:

 
The Board may adopt such rules, or delegate to one or more persons its authority to make initial determination, as it may deem necessary for the proper administration of the [DuPont Plan]. The [Board] retains discretionary authority to determine eligibility for benefits hereunder and to construe the terms and conditions of the [DuPont Plan]. The decision of the Board in all matters involving the interpretation and application of this [DuPont Plan] shall be final.

 See DuPont Plan at 8.

 b. Procedures for Processing Benefits Under the DuPont Plan

 The Board follows the same procedure for each case arising under the DuPont Plan. Brenner Affidavit, P 7. The Board appoints delegates from DuPont's Human Resources Department (the "Human Resources Delegate") for the purpose of processing certain applications under various Dupont benefit plans, including the instant DuPont Plan. Id. Responsibility for Pokol's application for total and permanent disability benefits was at times delegated to Human Resources Delegates Herbert W. Watson ("Watson") and Carol I. Killeen ("Killeen"). Id.

 Medical information submitted in support of an application for benefits is reviewed by a member of DuPont's Corporate Medical Division, who also functions as a delegate of the Board (the "Medical Delegate"). Id., P 8. In the case of Pokol, the Medical Delegate was Benjamin Ramirez, M.D. ("Dr. Ramirez"). Id.

 When an application for total and permanent disability benefits is received, one of the Human Resources Delegates processes the application. Id., P 9. The Medical Delegate reviews the matter and makes the initial determination. Id. The Human Resources Delegate than reviews the determination and informs the claimant of the initial determination in writing. Id. If benefits are denied, the letter advises the applicant of the reasons for the denial, specifying the provision from the DuPont Plan on which the denial is based and citing the information reviewed. Id. This letter also advises the applicant of the right to appeal the denial to the three-member Board. Id. At all times relevant to this matter, the members of the Board were Chairman S.A. Harrison and Members J.H. Brenner, Esq. and T.B. Storer. Id., P 6.

 B. Pokol Application for Total and Permanent Disability Benefits

 Pokol submitted an application for total and permanent disability benefits pursuant to the DuPont Plan in mid 1993. Ramirez Affidavit, P 10. Pokol's initial application for benefits (the "Initial Application") contained various medical reports and determinations addressing her physical and psychological health, including

 
1. 8 June 1993 Letter from Dr. A.S. Lichtbroun ("Dr. Lichtbroun") to Dr. M. Deltieure ("Dr. Deltieure") (the "8 June 1993 Letter"), attached as Exhibit 11 to Defendants' Appendix. The 8 June 1993 Letter stated that, Dr. Lichtbroun "feel[s] she is totally disabled from her current occupation and is unable to lift more than five pounds." Ramirez Affidavit, P 14. It recites subjective symptoms and does not state the etiology or cause of her symptoms. Id.
 
2. 6 May 1993 Psychological evaluation from Dr. N. Fiedler, Ph.D. ("Dr. Fiedler") ("6 May 1993 Psychological Evaluation"), attached as Exhibit 12 to Defendants' Appendix. The 6 May 1993 Psychological Evaluation stated that "her pain stems from a combination of physical factors that are amplified and exacerbated by panic attacks and depression. Future job placement will depend on [Pokol's] ability to gain both physical and psychological strength. Rather than be totally disabled, it would be better to place her in a job she can accomplish (e.g. reception or other light duty jobs)." Ramirez Affidavit, P 15.
 
3. 11 March 1993 Letter from Dr. F. Rehman ("Dr. Rehman") to Dr. J. Renda ("Dr. Renda")("11 March 1993 Letter"), attached as Exhibit 13 to Defendants' Appendix.
 
4. 18 February 1993 Letter from Dr. Deltieure to Dr. Renda ("18 February 1993 Letter"), attached as Exhibit 14 to Defendant's Appendix.
 
5. 4 March 1993 Handwritten Letter from Dr. Renda to Dr. Deltieure ("4 March 1993 Letter"), attached as Exhibit 15 to Defendants' Appendix. The 4 March 1993 Letter contained a diagnosis of "myositis and spasm," which are temporary, not permanent, conditions of inflammation. Ramirez Affidavit, P 16. The 4 March 1993 Letter was unaccompanied by objective medical evidence to support the opinion. Id. Dr. Renda concluded that Pokol "is not a candidate for her present job description." Id.
 
6. 2 June 1993 Handwritten Letter from Dr. Renda to Dr. Deltieure ("2 June 1993 Letter"), attached as Exhibit 16 to Defendants' Appendix.
 
7. 13 April 1993 Letter from Dr. Rehman to Dr. Deltieure ("13 April 1993 Letter"), attached as Exhibit 17 to Defendants' Appendix. The 13 April 1993 Letter states, "As a result, I feel that the patient may not be able to do her duties as a machinist but may be capable of other jobs not requiring any heavy lifting, pushing, or pulling." Ramirez Affidavit, P 18.
 
8. 1 April 1993 Report from Dr. E. Schlesinger ("Dr. Schlesinger")("1 April 1993 Schlesinger Report"), attached as Exhibit 18 to Defendants' Appendix. This report did not indicate Pokol was suffering from major depression or any other permanent psychiatric diagnosis. Ramirez Affidavit, P 19.

 See Ramirez Affidavit, PP 12-20. Dr. Ramirez reviewed these items and concluded Pokol failed to submit any objective medical information to establish that she was totally and permanently disabled. Id., P 21. Dr. Ramirez recommended Pokol's Initial Application for benefits be denied. Id.

 The recommendation was adopted by Human Resources Delegate Watson, and the Board subsequently denied Pokol's Initial Application. Brenner Affidavit, P 12. The decision was communicated to Pokol in a letter from Watson, dated 17 September 1993, (the "17 September 1993 Letter"). Id., P 13; 17 September 1993 Letter, attached as Exhibit 4 to Defendants' Appendix. The 17 September 1993 Letter listed the items of medical evidence reviewed *fn4" and informed Pokol of her right to appeal. Id.

 Pokol submitted additional medical information for consideration of total and permanent disability benefits in response to the 17 September 1993 Letter ("Supplemental Application"). Ramirez Affidavit, P 23. This information consisted of

 
1. 18 October 1993 Letter from Dr. Renda to Congressman F. Pallone, Jr. ("Congressman Pallone"), attaching the 11 March 1993 Letter of Dr. Rehman to Dr. Renda, 13 September 1993 Handwritten Letter to Congressman Pallone, and the 6 December 1993 Letter from Congressman Pallone to Barbara Kaczmarex ("Kaczmarex") at DuPont. ("18 October 1993 Letter, With Attachments") See Exhibit 20, attached to Defendants' Appendix.
 
2. 11 March 1993 Letter from Dr. Rehman to Dr. Renda ("11 March 1993 Letter"), attached as Exhibit 13 and Exhibit 20 to Defendants' Appendix.
 
3. 12 July 1993 Letter from Dr. Lichtbroun to Dr. Renda ("12 July 1993 Letter"), attached as Exhibit 21 to Defendants' Appendix.

 Ramirez Affidavit, P 23. Dr. Ramirez reviewed the medical submissions comprising the Supplemental Application, concluded the additional evidence did not change his initial determination and recommended the ...


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