                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-2004

Tesche v. CNA Ins Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2078




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                                                   NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 03-2078
                                  ________________

                                  JOAN D. TESCHÉ,
                                             Appellant

                                            v.

                      *CONTINENTAL CASUALTY COMPANY;
                          CNA INSURANCE COM PANIES

           *(Amended in accordance with Clerk's Order dated 5/15/03)
                   ___________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Civ. No. 01-cv-00326)
                    District Judge: Honorable William W. Caldwell
                            __________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 22, 2004

           Before: ROTH, AMBRO, AND CHERTOFF, CIRCUIT JUDGES

                               (Filed : September 7, 2004)


                                  _________________

                                      OPINION
                                  _________________


ROTH, Circuit Judge

      Appellant Joan D. Tesché filed a civil action in United States District Court for the
Middle District of Pennsylvania under the Employee Retirement Income Security Act, 29

U.S.C. § 1132(a)(1)(B) (ERISA), seeking to recover long-term disability benefits from

Continental Casualty Company. She also claimed, among other things, that Continental

breached its fiduciary duties under section 1132(a)(2) by failing to disclose information

about the appeal process.

        Tesché was employed by AMP, Inc. of Harrisburg, Pennsylvania from May 1988

until May 1997. She began working as a secretary, but eventually was promoted to

systems procedure analyst. In 1990 Tesché began treatment for lower back pain.

Between M arch 1992 and M ay 1996 she had three back surgeries. In the third surgery a

bone screw was removed because her spine had not fused properly. Today, Tesché wears

a brace and takes several pain medications. She receives social security disability

benefits.

        AMP carried group long-term disability insurance through Continental. The policy

provided that an employee is entitled to benefits for the first 24 months, after the 180-day

elimination period, if she is totally disabled from performing her “own occupation.” The

policy made Continental the plan administrator. On May 3, 1997, Tesché was determined

to be disabled from her “own occupation” as a systems procedure analyst.1 She was paid

   1
       During the first 24 months, total disability, as defined under the policy, occurs when:

                       the Insured Employee, because of Injury or Sickness, is:

                       (1) continuously unable to perform the substantial and material
                       duties of his regular occupation;

                                               2
benefits for a period commencing after the 180-day elimination period (May 3, 1997

through October 30, 1997) for the 24-month “own occupation” period (October 30, 1997

to October 30, 1999).

       After the 24 month “own occupation” period, an insured employee is entitled to

benefits only if she is totally disabled from performing “any occupation.” The policy then

defines total disability as follows:

                      because of Injury or sickness, the Insured Employee is:

                      (1) continuously unable to engage in any occupation to which he is
                      or becomes qualified by education, training or experience; and

                      (2) under the regular care of a licensed physician other than himself.

(emphasis added).

       In June 1999, Continental referred Tesché to Tony Gulledge, a vocational

specialist. He interviewed her over the telephone, and they discussed jobs she could

perform with her sit/stand limitations, including telemarketer, customer service

representative, motel night auditor, and automobile rental agent. Gulledge’s

recommendation to Continental was that Tesché could perform these jobs. By letter dated

July 26, 1999, Tesché was informed that, effective October 30, 1999, she would no longer


                      (2) under the regular care of a licensed physician other than himself;
                      and

                      (3) not gainfully employed in any occupation for which he is or
                      becomes qualified by education, training or experience.

(emphasis added).

                                              3
receive benefits because she was not continuously unable to engage in “any occupation.”

       The denial of benefits was affirmed on February 21, 2000. Tesché then filed this

ERISA action. The District Court granted summary judgment to Continental on the

breach of fiduciary duties claim because Tesché sought relief individualized to her and

not on behalf of the entire plan; thus, her claim was not cognizable under section

1132(a)(2). The termination of benefits claim was tried without a jury. Tesché testified

that she spends the day in light activity around the house until she gets tired and has to

rest. She rests about two hours in the morning and for about the same amount of time in

the afternoon, an assertion that is at the heart of her claim of total disability. Mark Lucas,

Ed.D., a vocational expert, testified on her behalf that, based on the limitations identified

by Tesché’s orthopedic surgeon, she was unable to perform any of the jobs suggested by

Gulledge. Lukas stated that Tesché’s limitations were severe enough to prevent her from

working in a competitive setting.

       Continental’s vocational expert, George Parsons, Ph.D., testified that he disagreed

with Lukas’s opinion. Parsons testified that there are jobs available that would allow

Tesché to work. She would need a job that would give her the choice of alternating

between sitting, standing, and walking, and allow her frequent breaks, in other words, one

that would accommodate her need for rest, but he believed she could work as an interview

clerk, an expediter, administrative support personnel, a scheduler, and an industrial caller.

       Applying a de novo standard of review, the District Court awarded judgment to



                                              4
Continental and against Tesché. The court first determined that “any occupation” is

broadly defined as work that the insured is qualified to perform based on her education,

training or experience. It does not include part-time work. The court then evaluated the

testimony of the three vocational experts, Gulledge, Lucas and Parsons.

       The District Court concluded that, based on the broad language of the policy,

Tesché was not totally disabled because she is not continuously unable to engage in any

occupation. Thus, the District Court determined that denial of long-term benefits did not

violate ERISA. Tesché appealed.

       We will affirm. We exercise jurisdiction under 28 U.S.C. § 1291. The District

Court reviews a denial of benefits challenged under 29 U.S.C. § 1132(a)(1)(B) under a de

novo standard unless the plan gives the administrator discretionary authority to determine

eligibility for benefits. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).

The parties stipulated to the de novo standard here. This stipulation is reasonable in that

there is no language in the policy specifically granting discretionary authority to

Continental. The District Court thus was required to make an independent determination

of Tesché’s eligibility for benefits, see Luby v. Teamsters Health, Welfare, & Pension

Trust Funds, 944 F.2d 1176, 1185 (3d Cir. 1991), giving no deference to either party, see

Pinto v. Reliance Standard Life Ins. Co., 214 F.3d 377, 383 (3d Cir. 2000).

       Tesché argues on appeal that the District Court erred in requiring her to provide

objective medical proof of her need to lie down for a period of time in the morning and



                                              5
afternoon, and deviated from the standard we announced in Mitchell v. Kodak, 113 F.3d

433 (3d Cir. 1997). In Mitchell, we held that a plan administrator acted arbitrarily in

denying benefits on the ground that the employee had failed to provide any objective

evidence that his chronic fatigue syndrome (CFS) made him unable to engage in

substantial gainful work. 113 F.3d at 442-43. We did so because the employee’s

physicians had supplied undisputed evidence to indicate that the employee suffered from

severe CFS that had precluded him from engaging in any work.

       The vocational evidence in Tesché’s case is not undisputed, however, and thus

Mitchell does not determine the outcome here. We conclude that the District Court did

not impose any impermissible burden of proof on Tesché. The court merely decided that

Parsons's analysis and conclusion was more persuasive after properly examining and

weighing the vocational evidence. The court noted the medical restrictions and

limitations documented by Tesché’s own treating physicians, accepted them, and then

determined that Tesché, even so, had not shown that she was disabled from any

occupation as broadly defined by the policy.

       Tesché also argues that Parsons was incompetent and rendered an unreliable,

equivocal opinion that the District Court should not have relied upon.2 We do not agree.

Parsons’s evaluation was thorough and complete. He took all pertinent records and

information into consideration, including the award of social security benefits, and his

   2
    Parsons's competency was not challenged below and, in any event, cannot reasonably
be questioned in view of his extensive qualifications.

                                               6
opinion is not internally inconsistent. He accepted Tesché’s restrictions as stated by her

treating physicians but weighed those limitations with her above average ability and,

using his expertise, arrived at a sound conclusion that there are jobs available even with

her limitations. Furthermore, the Social Security award is not binding on Continental any

more than Continental’s denial of benefits is binding on the Social Security

Administration. The District Court did not err in relying on Dr. Parsons’s testimony. See

Fed. R. Civ. Pro. 52(a).

       In sum, we find no basis for disturbing the District Court’s independent

determination that Tesché was ineligible for long-term disability benefits under AMP’s

policy.3

       Finally, Tesché argues that Continental issued an untimely decision in violation of

ERISA. We are not persuaded that a procedural violation occurred here.

       For the above reasons, we will affirm the judgment of the District Court in favor of

Continental and against Tesché.




   3
       To the extent that Tesché suggested in her brief that her fibromyalgia strengthens
her claim, we note that the record, while noting a diagnosis of fibromyalgia, is devoid of
any medical opinion that she is disabled from any occupation due to fibromyalgia.
                                         7
