Buffonge v. Prudential Insurance Co. of America

• Decision Date: 14 October 2005
• Docket Number: No. 05-1416.,05-1416.
• Parties: Thomas BUFFONGE, Plaintiff, Appellant, v. THE PRUDENTIAL INSURANCE CO. OF AMERICA; Getronics Wang Co., LLC, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

426 F.3d 20

Thomas BUFFONGE, Plaintiff, Appellant, v. THE PRUDENTIAL INSURANCE CO. OF AMERICA; Getronics Wang Co., LLC, Defendants, Appellees.

No. 05-1416.

United States Court of Appeals, First Circuit.

Heard September 16, 2005.

Decided October 14, 2005.

COPYRIGHT MATERIAL OMITTED

Mitchell J. Notis, with whom Law Office of Mitchell J. Notis was on brief, for appellant.

William T. Bogaert, with whom Wilson, Elser, Moskowitz, Edelman & Dicker LLP was on brief, for appellees.

Before LYNCH and HOWARD, Circuit Judges, and RESTANI,^* Judge.

LYNCH, Circuit Judge.

We have not previously addressed the issue raised in this ERISA appeal, which comes to us from the district court's entry of summary judgment concluding that a claims administrator's denial of long-term disability benefits was not arbitrary and capricious. The plaintiff appeals and asserts that his ERISA rights were violated because the administrator relied on material mischaracterizations of the medical record.

The claims administrator, Prudential Insurance Company of America, and co-appellee Getronics Wang Co., LLC, the employer, stated that they based their denial of long-term disability benefits to former Wang employee Thomas Buffonge on four pieces of evidence. The denial rested heavily, but not exclusively, on the opinion of Dr. Jonathan Rutchik, a consultant hired by Prudential who did not examine Buffonge but who reviewed Buffonge's medical history and concluded that there was a "consensus" that Buffonge could perform sedentary duties, such as keyboard work. In fact, the medical records showed that no such consensus existed, and, in other ways, Dr. Rutchik's report materially mischaracterized Buffonge's medical history. Prudential also rested its benefits denial on the report of another physician, but that report supported the grant, not the denial, of benefits. Further, Buffonge's medical records, on which Prudential also purportedly relied, demonstrated the two points made above.

We conclude that the process used was materially tainted, and the taint was sufficiently prejudicial, so as to render the process arbitrary. We remand to the district court to remand to the claims administrator for a new review of Buffonge's claim. We emphasize that we do not reach the issue of whether Buffonge was disabled.

I.

We recount the record which was before the claims administrator. See Liston v. Unum Corp. Officer Severance Plan, 330 F.3d 19, 24 (1st Cir.2003) ("Where . . . review is under the arbitrariness standard, the ordinary question is whether the administrator's action on the record before him was unreasonable.").

A. Buffonge's Medical History

Buffonge began working for Wang¹ in 1983. At that time, he became a participant in Wang's employee benefits plan, which included a long-term disability benefits program; Wang contracted with Prudential to provide the program, and Prudential serves as the program's claims administrator. The plan provides that an employee is eligible for long-term disability benefits after he or she has been "totally disabled" for 26 weeks. "Total disability" exists when the following conditions are met:

(1) Due to Sickness or accidental injury, both of these are true:

(a) You are not able to perform, for wage or profit, the material and substantial duties of your occupation.

(b) After the Initial Duration of a period of Total Disability, you are not able to perform for wage or profit the material and substantial duties of any job for which you are reasonably fitted by your education, training or experience. . . .

(2) You are not working at any job for wage or profit.

(3) You are under the regular care of a Doctor.

In 1993, Buffonge was a "field logistics coordinator" at Wang. The job involved helping track and ship computer parts to different offices across the country; it required some lifting as well as computer and other desk work. In June 1993, Buffonge injured his neck and back while moving computer parts at the office. His discomfort worsened as the weeks passed, and, by July, Buffonge was reporting severe pain in his chest, radiating into his left arm and elbow. On July 28, 1993, examining physician Dr. Wendell Pierce diagnosed "cervical disc disease with left radiculitis" and wrote that Buffonge was "in a great degree of discomfort."

Buffonge took leave from work on temporary disability from August 1993 until April 1994. He then returned to work for one week, but suffered pain while driving to and from the office, and so took leave again until early November 1994. Buffonge was treated repeatedly during this period for continuing pain in his neck, back, and chest. In August 1994, Dr. Stephen Lipson examined Buffonge on referral from Dr. James Bayley, one of Buffonge's regular physicians. Dr. Lipson diagnosed Buffonge as suffering from at least one and possibly two herniated discs; he described Buffonge's pain as "worse with sitting, standing, and lifting, better with walking and better with bedrest."

Buffonge also saw Dr. David Duhme, a specialist in internal medicine at Harvard University Health Services, who had served as Buffonge's main treating physician since soon after his initial injury. In a report dated July 20, 1994, Dr. Duhme stated that he "ha[d] been seeing [Buffonge] frequently" and had referred him for orthopedic evaluation. He stated that Buffonge was "frustrated at his repeated failures to return to work without aggravating the pain."

Buffonge's personnel records show that he had been placed on modified duty perhaps as early as the summer of 1993: thereafter, while he still had the mostly desk-bound duties of a "field logistics coordinator," those duties were altered to avoid regular lifting and other physical labor.² Despite these accommodations, Buffonge's November 1994 return to Wang lasted less than one month. On December 5, 1994, Buffonge visited Dr. Duhme for a follow-up examination. Dr. Duhme's report stated that Buffonge "tried to return to work but now is out of work again due to neck pain radiating to the [left] arm with numbness in the [left] fingers . . . . [H]e would stand all day at work because the pain was worse sitting." He diagnosed Buffonge as suffering from both cervical and lumbar disc disease.

In January 1995, Buffonge attempted another return to work, but his attendance during the months that followed was sporadic at best: he was unable to work a full week, and even when he was at work he reported an intermittent inability to concentrate due to episodes of severe pain. In September 1995, Buffonge was examined by Dr. John F. Duff at the request of Wang's lawyers; Duff reported that Buffonge "has headaches . . . and he says that he has trouble driving and by the end of the day, his low back gets sore and he moves from different positions but apparently continues to have the complaints." Buffonge also told Dr. Duff that he "has chest pains when he sits too long and now gets low back pain." Dr. Duff concluded that despite his pain, Buffonge should have been able to perform a full day's work so long as he shifted positions during the work day and avoided heavy lifting.

By October 6, 1995, when he saw Dr. Duhme again, Buffonge was reporting serious pain, especially late in the day and late in the week. Dr. Duhme examined him that day; in the diagnosis section of his report he again wrote "cervical disc disease" and "lumbar disc disease," and this time added that the latter was "becoming chronic pain." Dr. Duhme concluded that Buffonge needed to take some time off of work. Later in October, Buffonge tried to go to work once again, but he experienced such intense pain that he "had to get down on his hands and knees" to control it. He visited Duhme's office that afternoon; Duhme examined Buffonge and observed in his report that "[w]hen he straightens up [from a bent-over position] his whole right side of the back is bulging with muscle spasm." He diagnosed "[e]xacerbation of lumbar intervertebral disc disease with objective signs of pain and spasm."

On November 9, 1995, Buffonge again visited Dr. Duhme, who reported that Buffonge "[u]sually . . . goes into work, tries to work, and may have to stop and lie down. He does not think he can carry on." Dr. Duhme assessed him as suffering from "[i]ncreasing pain from cervical disc disease" and gave him a letter authorizing "a medical leave of absence for a few weeks." It is not clear precisely when Buffonge's leave began; however, the record indicates that he missed work for five consecutive weeks in December 1995 and January 1996 while receiving treatment.

On January 18, 1996, a report by Dr. Frederick Mansfield — a spinal surgeon who examined Buffonge on referral from Dr. Duhme — noted that Buffonge had "developed worse pain in his head and neck" two months earlier. Dr. Mansfield's report diagnosed Buffonge with "[c]ervical and lumbar disc degeneration" and stated that "[a]ny exercise or increased bending or twisting increases his pain."

Buffonge returned to work yet again in late January 1996. He had been attending physical therapy for some time as part of his treatment, and on February 5, 1996, he was discharged from the physical therapy program; the therapist wrote in his discharge statement that he was "pain-free and [symptom]-free when last seen." On February 15, however, Buffonge visited Dr. Duhme again and reported that he had been suffering "severe pain." Dr. Duhme assessed Buffonge as having "chronic neck pain due to cervical disc disease" and reported that Buffonge was undergoing acupuncture and would be in for follow-up evaluations. Six days later, on February 21, 1996, Buffonge left work because of the pain; it would prove to be his last day on the job.

On June 5, 1996, Buffonge applied to Prudential for long-term disability benefits. In the "Attending Physician" section of the application,³ Dr. Duhme reported his diagnosis that Buffonge suffered from "chronic neck, shoulder and chest pain aggravated by...