Heller v. Fortis Benefits Ins. Co.
| Decision Date | 01 May 1998 |
| Docket Number | No. 97-7095,97-7095 |
| Citation | 142 F.3d 487 |
| Parties | Andrea HELLER, Appellant, v. FORTIS BENEFITS INSURANCE COMPANY, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (No. 92cv00549).
Joseph F. Cunningham argued the cause and filed the briefs for appellant.
Jennifer Rand Stein argued the cause for appellee, with whom Grace E. Speights was on the brief.
Before: WALD, SILBERMAN and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
Andrea Heller appeals the grant of summary judgment to Fortis Benefits Insurance Company ("Fortis") on her claim that the company improperly denied her disability benefits and breached its fiduciary duty in violation of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461 (1994). After paying Heller disability benefits for five years, Fortis determined that she no longer qualified as disabled under its plan and terminated her benefits. The district court approved this termination and further ordered Heller to reimburse Fortis for disability payments for which she had not actually been eligible. Because Heller failed to present a genuine issue of material fact regarding her qualification for disability benefits under Fortis' plan, and because we hold that restitution was an available remedy for the company under ERISA and that the district court did not abuse its discretion in ordering the award, we affirm. I.
Heller worked as a marketing representative for McCue Systems, Inc. ("McCue"), beginning in March 1985. The job was stressful, and she injured her back, neck, and shoulder by carrying heavy computer equipment on numerous business trips. In January 1986, she filed for disability under McCue's health benefits plan, which provided for insurance coverage from Fortis. 1 In order to qualify as "totally disabled" under the plan and thus be eligible for payments, she had to be "unable to perform the material duties of ... her regular occupation or employment." Agreeing that she qualified for payments as a "totally disabled" person under this definition, Fortis approved Heller's claim. She accordingly received disability benefits from Fortis for five years, from 1986 through 1991.
Under Heller's plan, however, the standards for her eligibility for benefits changed after five years and, by letter of February 4, 1991, Fortis informed Heller that it would review her continued entitlement to benefits. As Heller's plan provided, a person is "totally disabled" if
(i) during the first 60 months of any One Period of Total Disability, the Person Insured is under the regular care and attendance of a Licensed Physician (other than him or herself) and unable to perform the material duties of his or her regular occupation or employment; and
(ii) after the first 60 months of any One Period of Total Disability, the Person Insured is unable to perform the material duties of any and every gainful occupation or employment for which the person is or becomes reasonably fitted by education, training or experience.
While a Person Insured meets these requirements, limited employment will not interrupt the Qualifying Period or the Period of Total Disability.
If a Person Insured is working, and is not disabled by the Occupation Test definition of Total Disability, we will consider the Person Insured to be "Totally Disabled" during any month when he or she is not able, because of Injury, sickness or pregnancy, to earn more than 50% of his or her Monthly Earnings.
Fortis advised Heller that it would investigate the merits of her continued claim for benefits and that "the issuance of any further benefits should not be construed as an admission of liability on our part to continue benefits indefinitely beyond the first sixty months of disability."
Thereafter, Fortis commissioned Crawford & Company ("Crawford"), an employment consulting firm, to interview Heller, assess whether she could perform any jobs, and conduct a labor market survey to determine what jobs might be available for her. In its "Initial Vocational Assessment" report on March 22, 1991, Crawford concluded that Heller "possesses many transferable skills from her work history that would be useful in other less physically demanding types of work," based on her experience, college education, and sales skills. From May 10 through June 5, 1991, Crawford conducted a "Labor Market Survey" that indicated that Heller "has good transferrable skills that apply to different types of jobs that are presently available in the labor market, and those are too numerous to list here, but include customer service, bank positions, any retail, etc." Crawford listed ten sales positions for which Heller might be particularly suited. 2
Additionally, Fortis dispatched its in-house investigator to determine whether Heller was working at her husband's law firm during the time that she was receiving disability benefits. The investigator determined that Heller spent some time at the firm during the workday, and he also found some documents implying that she worked there--for instance, a letter referring to her editing assistance. However, neither Heller's social security and tax records nor the law firms's records provided documentation of such employment or income; nor did she ever notify Fortis of any return to work or receipt of new income.
Finally, Fortis assembled the medical reports on Heller from examinations since the onset of her disability. Three physicians pronounced her fit for certain kinds of employment. In 1987, Dr. Philip Pulaski concluded that he "would have a hard time, at least from the neurologic perspective, continuing to back up her claims of disability." In 1989, Dr. John Devor concluded that "[m]ost of the time, [Heller] probably would not have more than a slight handicap working either as an outside salesperson or an inside salesperson." In 1990, Dr. Louis Levitt concluded: "In my opinion the patient is not totally disabled from gainful employment." In addition, Dr. Raymond Drapkin, Heller's attending physician, who had been of the opinion that Heller had been disabled, agreed on January 23, 1991, in response to a questionnaire sent by Fortis, that Heller was a good candidate for vocational rehabilitation. On September 6, 1991, in response to another questionnaire, Dr. Drapkin further agreed that Heller could be available for "light work duty" and was "OK" for "sedentary work." He answered in the affirmative the question whether she could "possibly return to work on a full-time basis as an inside salesperson where she is not require[d] to travel or lift heavy equipment and where she is allowed to alternate her position when necessary."
Based on its investigation, Fortis concluded that Heller satisfied neither the plan's Occupation Test nor its Earnings Test, and therefore was unqualified to receive benefits. By letter of January 15, 1992, Fortis notified Heller of the termination of her benefits. After outlining the medical information and the information provided by Crawford, the letter stated: "Based on the medical information and the results of the Labor Market Survey, benefits could be denied on these findings alone[;] however we also have information documenting that [Heller] has worked ... since 12/19/88." In addition to terminating her benefits, Fortis demanded repayment of "benefits that were not due." The letter did not advise her of any right to appeal the benefits determination.
Heller sent a number of documents to Fortis, to which Fortis responded both in writing and by telephone conversation with Heller's attorney that it would treat the documents as an appeal of its benefits determination. Nonetheless, two days after receiving this notice from Fortis, Heller filed suit alleging, among other things, violation of ERISA, , 29 U.S.C. § 1132(a)(1)(B), which provides that "[a] civil action may be brought ... by a participant or beneficiary ... to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B) (1994). Fortis counterclaimed for restitution of benefits paid Heller after January 1991. The district court resolved the case on cross-motions for summary judgment, ruling in Fortis' favor on both Heller's claim and its counterclaim. The court found that Fortis was entitled to $19,811.00 in restitution, the amount erroneously paid to Heller after her fifth year of receiving benefits.
II.
On appeal Heller contends that the district court erred in granting summary judgment against her because Fortis denied her a meaningful review process in violation of 29 U.S.C. § 1133. She also contends that the district court failed to apply either test for "total disability" properly in the context of a motion for summary judgment. Under the Occupation Test, she maintains, the severity of her disability presented a material question of fact. Furthermore, she maintains that the district court could not have concluded that she failed the Earnings Test on the basis of sparse medical evidence and undocumented allegations that she was working at her husband's law firm. Finally, she contends that the district court erred in awarding Fortis restitution. Our review of the grant of summary judgment, as well as the denial of Heller's own motion for summary judgment, is de novo. See Henke v. Department of Commerce, 83 F.3d 1445, 1448 (D.C.Cir.1996); Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994).
Rule 56(c) of the Federal Rules of Civil Procedure provides that a court shall grant a motion for summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,...
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