52 F.3d 438 (2nd Cir. 1995), 502, Pagan v. NYNEX Pension Plan

Docket Nº:502, Docket 94-7344.
Citation:52 F.3d 438
Party Name:Gloria PAGAN, Plaintiff-Appellant, v. NYNEX PENSION PLAN and Nynex Corporation, Defendants-Appellees.
Case Date:April 12, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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52 F.3d 438 (2nd Cir. 1995)

Gloria PAGAN, Plaintiff-Appellant,


NYNEX PENSION PLAN and Nynex Corporation, Defendants-Appellees.

No. 502, Docket 94-7344.

United States Court of Appeals, Second Circuit

April 12, 1995

Argued Feb. 1, 1995.

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Donald L. Sapir, White Plains, NY (William D. Frumkin, Daniel J. Schneider, Law Offices of Donald L. Sapir, of counsel), for appellant.

William R. Blane, White Plains, NY (Richard H. Wagner, of counsel), for appellees.

Before FEINBERG, MESKILL and McLAUGHLIN, Circuit Judges.

MESKILL, Circuit Judge:

Appellant Gloria Pagan instituted this action alleging that appellees NYNEX Corporation (NYNEX) and the NYNEX Pension Plan (Pension Plan) wrongfully denied her a disability pension in violation of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. Sec. 1001 et seq. The parties moved for summary judgment, and the United States District Court for the Southern District of New York, Broderick, J., denied Pagan's motion, granted appellees' motion and dismissed the complaint. See Pagan v. NYNEX Pension Plan, 846 F.Supp. 19 (S.D.N.Y.1994). We affirm the district court's judgment.


The operative facts are not in dispute. The Pension Plan, an "employee benefit plan" under ERISA, see 29 U.S.C. Sec. 1002(3), provides retirement and long-term disability pensions to eligible employees of NYNEX and certain of NYNEX's subsidiaries. Under the Pension Plan non-management employees may obtain a long-term disability pension if (1) they have accrued fifteen or more years of service before their sixty-fifth birthday, and (2) they have "become totally disabled as a result of sickness or of injury." As explained in the Pension Plan's summary plan description, "totally disabled" means that an applicant "continue[s] to be disabled after ... hav[ing] received 52 weeks of Sickness Disability Benefits under the [applicable] Sickness and Accident Disability Benefits Plan." NYNEX has delegated its authority to administer the Pension Plan to the NYNEX Employees' Benefits Committee (NYNEX Committee).

Gloria Pagan was employed for sixteen years as a maintenance administrator in the Customer Services Department of New York Telephone (NYT). NYT is a subsidiary of NYNEX and participates in the Pension Plan. The applicable "Sickness and Accident Disability Benefits Plan" for all NYT non-management employees, including Pagan, is the New York Telephone Sickness and Accident Disability Benefits Plan (S & A Disability Plan). The S & A Disability Plan provides short-term disability benefits to NYT employees who remain disabled for greater than seven calendar days, as long as claimants inform their supervisor of the nature of their disability on the first day of their absence and furnish certification of their disability from their doctor to NYT's Medical Department. An employee's ongoing entitlement to benefits under the S & A Disability Plan, however, is contingent on a continued finding of a medical disability by the NYT Medical Department, and employees receiving short-term disability benefits must consent to periodic examinations by the Department. Employees dissatisfied with the Medical Department's ultimate disability determination are given two avenues of redress under the S & A Disability Plan. First, the S & A Disability Plan provides that an appeal may be taken directly to the NYT Employees' Benefits Committee (NYT Committee), the S & A Disability Plan's administrator. In the alternative, those employees covered by a collective bargaining agreement may seek a second medical opinion from a physician mutually selected by their union and NYT. If dissatisfied with this second opinion, an employee may either appeal to the NYT Committee for reconsideration or obtain a third

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medical opinion. Employees may appeal this third opinion only to the NYT Committee. Finally, decisions of the NYT Committee may be appealed to the NYT Employees' Benefits Review Committee, whose decision is final.

In November 1984 Pagan began a medical leave of absence from NYT because an acute asthmatic reaction to tobacco smoke at her place of work prevented her from performing her duties. On March 8, 1985 Pagan appeared at the NYT Medical Department for a scheduled visit in order for the Department to determine whether Pagan's condition still justified the payment of short-term disability benefits. Prior to her evaluation Dr. Sophie Bilezikian, the staff physician in charge of Pagan's case, informed Pagan that her workplace was now smoke-free. Pagan's own pulmonary specialist had informed the Department that Pagan therefore could resume working, and Dr. Bilezikian so notified Pagan. According to Dr. Bilezikian, on hearing this news Pagan became "very anxious and agitated because she had apparently been informed by the union that people were still smoking at work." Indeed, Pagan "was so upset at this visit that she was not examined," and another evaluation was scheduled for the following week.

At the March 15th visit Pagan claimed to be suffering from facial and bodily injuries sustained in an automobile accident which occurred on February 10, 1985. Significantly, Pagan made no mention of this accident the week before to Dr. Bilezikian, nor was there any objective physical evidence of Pagan's alleged injuries. After Pagan was examined by an orthopedist, the NYT Medical Department determined that Pagan was not physically disabled as a result of the accident. Rather, Dr. Bilezikian believed Pagan's problem to be psychological, and thus arranged for Pagan to meet with a staff psychiatrist. Pagan, however, failed to keep that scheduled appointment. The Medical Department then concluded that Pagan's further receipt of disability benefits was not warranted as (1) there was no evidence of any orthopedic disability stemming from her alleged automobile accident, and (2) her asthmatic condition no longer could be aggravated by her work environment, as her office was now smoke-free. Accordingly, Pagan's S & A Disability Plan benefits were discontinued as of April 2, 1985.

Pagan disputed this determination, and, in accordance with the S & A Disability Plan's review procedures, Pagan, an employee under a collective bargaining agreement, chose to obtain a second medical opinion concerning her accident-related injuries. On July 18, 1985 Pagan was seen by an independent physician, mutually selected by NYT and Pagan's union, who agreed with the NYT Medical Department that Pagan was not physically disabled. Although Pagan could have sought a third opinion or pursued an appeal to the NYT Committee, she did not do so. Rather, Pagan filed claims with the National Labor Relations Board, the Social Security Administration and the New York State Workers' Compensation Board. Meanwhile, NYT requested that Pagan return to work and, when she failed to appear, NYT terminated her employment on November 29, 1985.

Of sole relevance to this appeal are the proceedings before the Workers' Compensation Board. 1 Two separate hearings were held before the Workers' Compensation Board. In the first an administrative law judge (ALJ) for the Board determined that Pagan had no cognizable claim for disability benefits under New York law based on her asthmatic reaction to tobacco smoke. Pagan, however, was more successful in her application for disability benefits based primarily on her injuries allegedly sustained in the February 1985 automobile accident. On June 8, 1990 an ALJ decided that Pagan was entitled to disability benefits under New York's Disability Benefits Law for these injuries. See N.Y. Workers' Comp. L. Sec. 200 et seq. (McKinney 1994). Specifically, the ALJ found: "[Pagan] has been totally disabled from her regular employment at all times

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since November 2, 1984 and this is the following award: [November 2, 1984] to date for fifty-two weeks at $530, no waiting period. That's pursuant to the [S & A Disability] Plan that was filed." NYT did not appeal that ruling.

Thereafter, Pagan applied to the Pension Plan for a long-term disability pension, claiming that the Workers' Compensation Board's ruling of disability benefits for fifty-two weeks "pursuant to the [S & A Disability] Plan" satisfied the Pension Plan's requirement of at least fifty-two weeks of Sickness Disability Benefits...

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