222 F.3d 123 (3rd Cir. 2000), 99-3573/3589, Orvosh v. Program of Group Ins. for Salaried Employees of Volkswagen

Docket Nº:99-3573/3589
Citation:222 F.3d 123
Party Name: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 Page 124 OF VOLKSWAGEN OF AMERICA, INC.; VOLKSWAGEN OF AMERICA
Case Date:July 28, 2000
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 123

222 F.3d 123 (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

Page 124

OF VOLKSWAGEN OF AMERICA, INC.; VOLKSWAGEN OF AMERICA, INC., APPELLANTS IN 99-3573

Nos. 99-3573/3589

United States Court of Appeals, Third Circuit

July 28, 2000

Argued: May 11, 2000

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Civil No.: 98-cv-0166 District Court Judge: Honorable Robert J. Cindrich

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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

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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

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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...

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