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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JANE M. BRENNER v. HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY : : : : : :

Civil Action WMN-00-608

MEMORANDUM Before the Court is Defendant's Motion for Summary Judgment (Paper No. 12).1 decision. The motion is fully briefed and is ripe for

Upon a review of the pleadings and the applicable case

law, the Court determines that no hearing is necessary (Local Rule 105.6) and that Defendant's motion will be denied. I. BACKGROUND In January 1993, Plaintiff underwent a spinal tap to diagnose the cause of her severe headaches. The spinal tap

resulted in various injuries to Plaintiff, including severe myofascial pain with generalized fibromyalgia.2 See Lawson

Also before the Court is Plaintiff's Motion for Hearing on Defendant's Motion for Summary Judgment, or in the Alternative Motion to File an Amended and Supplemental Opposition to Defendant's Motion for Summary Judgment, or in the Alternative Motion to File Surreply, or in the Alternative Motion to Incorporate the Statements and Exhibits Contained Herein into the Plaintiff's Opposition to Defendant's Motion for Summary Judgment (Paper No. 17). The Court will deny Plaintiff's Motion. Myofascial pain is the pain of, or relating to, the fascia surrounding and separating muscle tissue. Stedman's Medical Dictionary 1173 (27th ed. 2000). Fibromyalgia is a related illness that is a "type of muscular or soft-tissue rheumatism that affects principally muscles and their attachment to bones, but which is also commonly accompanied by fatigue, sleep disturbances, lack of concentration, changes in mood or thinking, 1
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Report of Feb. 28, 1994 at 1.

Plaintiff suffered from severe low

back pain, severe sleep disturbance, persistent headaches, and achy pain involving her neck, shoulders, buttocks, and thighs, see id., and, as a result, was unable to continue working in her present position as a nurse. On March 19, 1993, Plaintiff

applied for long-term disability benefits under her employer's long-term disability policy (the "Policy") which was issued and administered by Defendant. Under the Policy, to qualify as having a "total disability" during the initial 24 months of coverage, the plan participant must show that she is "prevented by Disability from doing all the material and substantial duties of [her] own occupation." at 10 (emphasis added). Policy

After the initial 24 months, the plan

participant remains "totally disabled" only if she is "prevented by Disability from doing any occupation or work for which [she is] or could become qualified by: (1) training; (2) education; or (3) experience." Id. (emphasis added).

Based on Plaintiff's inability to perform her own occupation as a nurse, Plaintiff was granted benefits for the initial 24

anxiety and depression." Lang v. Long-Term Disability Plan of Sponsor Applied Remote Tech., Inc., 125 F.3d 794, 796 (9th Cir. 1997) (citing Fibromyalgia, Arthritis Foundation Pamphlet at 1, 5 (1992)). Together myofascial pain and fibromyalgia are "characterized by pain, tenderness, and stiffness of joints, capsules, and adjacent structures." Ellis v. Metropolitan Life Ins. Co., 126 F.3d 228, 231 n1 (4th Cir. 1997) (citing Taber's Cyclopedic Med. Directory (16th ed. 1989)). For simplicity, the Court will refer to the diseases collectively as "Fibromyalgia." 2

month period.

See Def.'s Letter to Pl. dated April 28, 1993.

After the expiration of the initial 24 month period, Plaintiff's benefits were extended based, primarily, on the periodic reports submitted by Plaintiff's treating physician, Dr. Brian Avin, which indicated that Plaintiff was totally disabled from her own job and any other occupation. See Feb. 1, 1995 Attending

Physicians Statement ("APS"), March 9, 1995 Physical Capabilities Evaluation ("PCE"), Nov. 17, 1995 PCE, Feb. 20, 1996 PCE. Of the

reports submitted by Dr. Avin, only two, the April 25, 1996 APS and the January 9, 1997 APS, indicated that Plaintiff might be capable of sedentary work on a part-time basis at some point in the future. On September 13, 1996, Defendant arranged for Plaintiff to be examined by Dr. Bruce Kehr, a neuropsychiatrist.3 Despite his

lack of medical expertise relating to Plaintiff's physical ailments4 and without the benefit of a physical examination, Dr. Kehr opined that Plaintiff is capable of working "at an occupation where she would be able to, on an `as needed' basis, get up and walk around, lie down, and alternate sitting with standing." Kehr Report at 6. Dr. Kehr indicated that, in his

Neuropsychiatry is a specialty field dealing with both organic and psychic disorders of the nervous system. Stedman's Medical Dictionary 1213 (27th ed. 2000). Dr. Kehr, in his report, readily admits that "[a]n evaluation of the organic component of [Plaintiff's] back pain is beyond the scope of [his] expertise, and falls in the realm of orthopedic, neurology, and physical medicine." Kehr Report at 7. 3
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opinion, a variety of administrative positions could accommodate Plaintiff, particularly under the Americans with Disabilities Act ("ADA"). Upon receipt of Dr. Kehr's report, Defendant twice sent

a copy of the report to Dr. Avin asking for his review and comments. See Def.'s Letters to Avin dated Oct. 11, 1996 and Dr. Avin did not respond to either request.

Dec. 11, 1997.

Relying primarily on Dr. Kehr's report, Dr. Avin's implied agreement with that report, and Dr. Avin's own January 1997 APS indicating a Class 4 physical impairment level,5 Defendant notified Plaintiff that her disability benefits were being terminated due to her failure to meet the "totally disabled" requirement. See Def.'s Letter to Pl. dated Feb. 4, 1997. Each

Plaintiff filed several written appeals of this decision. appeal was denied.

Upon notification that her final appeal had been denied, Plaintiff filed suit in the Circuit Court for Baltimore City alleging breach of contract. Defendant responded by having the

case removed to this Court on the basis that this Court has exclusive jurisdiction because Plaintiff's Policy is an employee benefit plan within the meaning of the Employment Retirement

One part of the APS requires the attending physician to classify the patient as to physical impairment level. A Class 4 impairment level is a "[m]oderate limitation of functional capacity; capable of clerical/administrative (sedentary) activity." On other reports, Dr. Avin had rated Plaintiff as having a Class 5 impairment level, i.e., "[s]evere limitation of functional capacity; incapable of minimal (sedentary) activity." 4

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Income Security Act of 1974, as amended, 29 U.S.C.

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