Orvosh v. Program of Group Ins. for Salaried Employees of Volkswagen, s. 99-3573

Citation222 F.3d 123
Decision Date11 May 2000
Docket NumberNos. 99-3573,s. 99-3573
Parties(3rd Cir. 2000) DONALD ORVOSH, APPELLANT IN 99-3589 V. THE PROGRAM OF GROUP INSURANCE FOR SALARIED EMPLOYEES OF VOLKSWAGEN OF AMERICA, INC.; THE VOLKSWAGEN OF AMERICA, INC. EMPLOYEE BENEFIT PLAN COMMITTEE, INDIVIDUALLY AND AS PLAN ADMINISTRATOR OF THE PROGRAM OF GROUP INSURANCE FOR SALARIED EMPLOYEES OF VOLKSWAGEN OF AMERICA, INC.; VOLKSWAGEN OF AMERICA, INC., APPELLANTS IN 99-3573 /3589 Argued:
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Paul Amato, Esq. (Argued) Richard J. Antonelli, Esq. Buchanan Ingersoll Professional Corporation 301 Grant Street, 20th Floor Pittsburgh, PA 15219-1410 Attorneys for Appellants/ Cross Apellees

Abby S. DeBlassio, Esq. (Argued) Fisher, Long & Riggone 101 West Pittsburgh Street Greensburg, PA 15601 Attorneys for Appellee/ Cross Appellant

Before: Greenberg, McKEE, Circuit Judges and Shadur,* District Judge

OPINION FOR THE COURT

McKEE, Circuit Judge.

The defendants appeal the district court's grant of summary judgment in favor of plaintiff, Donald Orvosh, and against defendants on Orvosh's claim under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. SS 1001 et seq. Orvosh has also cross-appealed from the district court's denial of attorney fees. For the reasons that follow, we will reverse the district court's grant of summary judgment in favor of Orvosh. Moreover, we will affirm the order of the district court denying attorney's fees as we see no reason to reverse that denial.

I.

David Orvosh entered the job market with a high school diploma and some college credit. He worked from 1962 to 1967 as a lab technician in Paint Research for PPG Industries. From 1967 to 1973 he worked first as a research technician in Paint Production, then as supervisor of a paint line for Season-All Industries. Orvosh also worked as a material foreman at Chrysler Corporation from 1973 until 1977.

On January 7, 1977, Orvosh was hired by Volkswagen of America, Inc. and he stayed with the company until March, 1987. During his time with Volkswagen, Orvosh worked in both the Paint Process Department and Paint Production Departments holding a variety of positions including senior chemist, senior lab engineer and general supervisor.

In March of 1987, Orvosh's treating physician, Dr. Angelo DeMezza, diagnosed him with asbestosis,1 atelectasis,2 deep vein thrombophlebitis ("DVT"),3 hyperthyrodism, and right pleural effusion.4 A year later, Orvosh suffered a heart attack and was diagnosed with coronary artery disease. He underwent a cardiac catherization in 1989, and in 1991 a piece of his lung was removed due to a left pleural tumor. In 1994, Orvosh had a second cardiac catherization, which disclosed that his right coronary artery had a 100% blockage, and his left coronary artery had a 30% blockage. In addition, Orvosh suffers from Graves' disease which impairs his vision. Over time, his condition worsened and he also developed a pulmonary embolism.5

Volkswagen paid Orvosh short-term and long-term disability ("LTD") benefits in accordance with its Salaried Group Insurance Plan which had been adopted in October, 1977. In June, 1995, Volkswagen adopted the "Program of Group Insurance for Salaried Employees of Volkswagen of America, Inc." ("the Plan"). Both parties agree that the 1995 plan governs this case and that it is covered by ERISA.

The Plan defines "disabled" as follows:

For the first 12 months that you are receiving long term benefits, `disabled' means you cannot engage in your specific position at the Company. For the remainder of your disability you must be unable to work for any employer in a paying job for which you are reasonably fitted by education, training, or experience. However, you can take part in rehabilitative employment and still be considered disabled. App. at R68.

Benefits are payable under the Plan for a covered disability if the following conditions are satisfied:

1. You are "disabled" (as defined by the Plan)

2. You are under a doctor's care

3. You provide required proof of your disability

4. You submit to an examination by an impartial doctor, at the company's expense, if requested. The results of this examination will determine whether or not you receive or continue to receive disability benefits.

Id.

The Plan further provides that:

Long-Term Disability benefits start on the day after Short-Term Disability benefits stop. These benefits can continue through the end of the month in which you attain age 65, provided your Long-Term disability benefits began before age 60, and you are certified by your physician as being totally disabled.

Id. at R69.

Volkswagen concluded that Orvosh met all prerequisites for LTD benefits, and it paid those benefits for ten years without dispute. During that time, Dr. DeMezza repeatedly certified that Orvosh was totally disabled, and he identified several of Orvosh's disabling conditions including: DVT, chest pain, and asbestosis.

In 1995, Volkswagen changed the administrator of its LTD benefits from Metropolitan Life Insurance Company to UNUM Life Insurance Company of America. UNUM reviewed Orvosh's claim shortly after the change. In August of 1995, UNUM received copies of Orvosh's medical records and asked Dr. DeMezza to complete a questionnaire regarding Orvosh's condition. Pursuant to that inquiry, Dr. DeMezza told UNUM that Orvosh's diagnosis included arteriosclerosis, heart disease, recurrent pulled groin, and DVT. Dr. De Mezza further indicated that Orvosh was being treated with medication and that the prognosis for his return to gainful employment was "bleak" because of dyspnea.6

UNUM then had its own physician, Dr. Charles Perakis, review Orvosh's medical history. Dr. Perakis concluded that Orvosh's pulmonary function appeared to be adequate for sedentary work but that reevaluation of his coronary artery disease was necessary to assess his true functioning status.

On January 10, 1996, UNUM forwarded a follow-up questionnaire to Dr. DeMezza. Dr. DeMezza responded that the only symptom causing impairment was "difficulty breathing with exertion," but that in his opinion, Orvosh was unable to work in any type of gainful employment.

UNUM interviewed Orvosh in early 1996. During that interview, Orvosh reported that he did housework including cleaning dishes and making dinner. He also reported an ability to perform various house cleaning tasks. Orvosh also reported that he engaged in various recreational activities including hunting and walking his dog. Finally, Orvosh reported that he drove his wife home from work every day, but that his wife drove herself to work because Orvosh experienced double vision upon waking in the morning.

Also in January, 1996, Jackie Roberts, an UNUM Disability Benefits Specialist, submitted a Regional Consulting Physician Referral Sheet to Mary Hearn, an UNUM Registered Nurse, asking Hearn to assess Orvosh's claim. After reviewing Orvosh's entire file, Hearn concluded that although the medical information was insufficient to determine the severity of his cardiac status, Orvosh appeared to have the capacity for sedentary to light work.

Sometime after Hearn reviewed Orvosh's file, Roberts requested that Triebold & Associates perform a Transferable Skills Assessment ("TSA") to determine whether Orvosh had the functional capacity to perform sedentary work. However, UNUM did not give Triebold a complete picture of Orvosh's health. Rather, UNUM told Triebold only that Orvosh suffered from asbestosis. Triebold reviewed Orvosh's work history, educational background, and personal data to prepare the TSA. Triebold assumed "for the purposes of this assessment . . . a functional capacity for work at the sedentary level of physical exertion." App. at R200. Triebold concluded that Orvosh's past highly skilled work "would not provide him with transferable skills for work at the sedentary level of physical exertion given his over 9 years absence from the work force at age 57." App. at R200-1. However, Triebold suggested that "retirement type positions" such as gate attendant, surveillance system monitor, and information clerk would be appropriate for Orvosh, given his health. According to the TSA, such retirement type positions,

would utilize Mr. Orvosh's basic work skills that he gained from performing his past work [including] his ability to perform simple to complex tasks within a schedule and without special supervision, interact appropriately with co-workers and supervisors, adhere to company procedures and safety policies, etc.

App. at R201.

Based on the TSA and other information gathered during the investigation, UNUM recommended that Volkswagen terminate Orvosh's LTD benefits. However, Volkswagen did not immediately act on that recommendation. Instead Volkswagen instructed UNUM to obtain an independent medical exam ("IME") to confirm that termination of those benefits was appropriate. Pursuant to that request, UNUM sought recommendations for appropriate testing through a Regional Consulting Physician Referral Form.

On September 23, 1996, UNUM sent Dr. DeMezza a copy of the TSA and asked him whether he agreed with its conclusion that Orvosh was capable of performing in "retirement type positions." Dr. DeMezza disagreed with the TSA and advised UNUM that sedentary work of any kind was contraindicated because of recurrent episodes of DVT and pulmonary embolism. Dr. DeMezza also stated that Orvosh could not have periods of prolonged sitting without movement.

In November, 1996, UNUM contacted Dr. Seymoure Krause, a cardiac specialist, and asked him to conduct an IME. Krause reviewed Orvosh's medical history, evaluated his physical capabilities, and tested his functional capacity by means of a thallium stress test which measures heart rate at the...

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