                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-22-2008

Krensavage v. Bayer Corp
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4302




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 06-4302


                              PAULA KRENSAVAGE,

                                               Appellant

                                          v.

                      BAYER CORPORATION and BAYER
                   CORPORATION WELFARE BENEFITS PLAN,



                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                               (D.C. Civil No. 04-01476)
                    District Judge: Honorable Terrence F. McVerry


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  October 30, 2007

                 Before: RENDELL and NYGAARD, Circuit Judges,
                          and VANASKIE*, District Judge

                               (Filed January 22, 2008)


                             OPINION OF THE COURT


VANASKIE, District Judge.


  *
   The Honorable Thomas I. Vanaskie, United States District Judge for the Middle
District of Pennsylvania, sitting by designation.
       Appellant Paula Krensavage appeals a District Court decision granting summary

judgment in favor of her employer, Bayer Corporation (“Bayer”), and Bayer Corporation

Welfare Benefits Plan, on her claims of violations of the Employee Retirement Income

Security Act (“ERISA”), 29 U.S.C. § 1101, et seq., and the Americans with Disabilities

Act (“ADA”), 42 U.S.C. § 12101, et seq. For the reasons that follow we will affirm the

grant of summary judgment.

                                             I.

       As we write only for the parties, we will set forth only those facts necessary to our

analysis. The Bayer Disability Plan (“the Plan”) designates Bayer as the Plan Sponsor

and Plan Administrator. The Plan Administrator is explicitly accorded discretion to make

final determinations of facts necessary or appropriate for claims under the Plan, interpret

the terms and provisions of the Plan, and decide any and all questions under the Plan.

Disability benefits are paid from a trust funded by periodic contributions from Bayer and

participants’ payroll contributions.

       Kemper Services, Inc. (“Kemper”) is the third party Claims Administrator for the

Plan. Kemper considers participants’ applications for long-term disability (“LTD”)

benefits and makes the initial determination whether to grant or deny an application. A

plan participant may appeal an adverse determination to the Bayer ERISA Review

Committee.

       Krensavage applied for LTD benefits in August of 2003. Along with her


                                             2
application she submitted the opinion of her treating physician, James Kang, M.D., who

had concluded that she could not return to work at Bayer as an Administrative Assistant

due to continuing neck spasms, but could perform sedentary work for an eight (8) hour

day. On August 26, 2003, Krensavage filed an application for Social Security Disability

Income (“SSDI”) benefits, in which she represented that she was incapable of doing any

kind of work on a regular basis.

       On October 10, 2003, Kemper denied Krensavage’s claim, basing its decision on

Dr. Kang’s opinion that Krensavage was able to perform sedentary work, as well as on a

medical review conducted by James Wallquist, M.D., an independent orthopedic surgeon.

By the time of Kemper’s decision, Krensavage’s short term disability leave had expired

and her continued absence from work was not excused. Bayer, however, granted

Krensavage a thirty-day “personal leave” while she appealed Kemper’s decision.

       On November 3, 2003, Krensavage submitted a report of Thad C. Schrickel, D.C.,

who opined that she was unable to return to work. Two days later, however, she reported

to work, but was sent home because she had not been medically cleared to return to work

and Bayer’s policy does not permit an employee to work without medical clearance. The

only accommodation she requested at that time was an indefinite leave of absence.

       On November 10, 2003, because her thirty-day leave had expired before her

ERISA appeal had been decided, Krensavage’s employment was terminated.

Krensavage, however, was informed that her employment would be reinstated if the LTD

appeal was decided in her favor.

                                            3
       On February 13, 2004, the ERISA Review Committee upheld the denial of LTD

benefits. It based it decision on the opinions of several independent doctors who either

had examined Krensavage or her medical records, as well as a report and surveillance

videotape from a private investigative service that showed Krensavage engaged in

activities inconsistent with her claim of total disability.

       Krensavage commenced a civil action in the United States District Court for the

Western District of Pennsylvania, asserting claims under ERISA of wrongful denial of

LTD benefits and retaliatory discharge, as well as a discrimination claim under the ADA.

After a thorough review of the record and well-supported analysis of the law, the District

Court granted Defendants’ motion for summary judgment on all counts. Krensavage v.

Bayer Corp., No. 02:04cv1476, 2006 WL 2794562 (W.D. Pa. Sept. 27, 2006). This

appeal followed.

                                               II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over the District Court’s grant of summary judgment. Torre v. Casio, Inc., 42 F.3d 825,

830 (3d Cir. 1994).

                                              III.

       It is undisputed that Bayer, the plan administrator, has discretionary authority to

interpret and apply the plan. Accordingly, we review the denial of benefits under the

arbitrary and capricious standard. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 115 (1989); Vitale v. Latrobe Area Hosp., 420 F.3d 278, 281-82 (3d Cir. 2005).

                                               4
Under this standard, the denial of benefits “will be overturned only if it is ‘clearly not

supported by the evidence in the record or the administrator has failed to comply with the

procedures required by the plan.’” Orvosh v. Program of Group Ins. for Salaried

Employees of Volkswagen of Am., Inc., 222 F.3d 123, 129 (3d Cir. 2000) (quoting

Abnathya v. Hoffman-La Roche, Inc., 2 F.3d 40, 41 (3d Cir. 1993)). Where, however, a

plan administrator with discretionary authority to determine eligibility for benefits

operates under a conflict of interest, we intensify the arbitrary and capricious review on a

sliding-scale approach in direct relation to the degree of that conflict. See Pinto v.

Reliance Standard Life Ins. Co., 214 F.3d 377, 393 (3d Cir. 2000).

       Concluding that Bayer, which partially funded the plan, may have had a financial

incentive to deny claims, the District Court determined that there was a conflict of interest

sufficient to warrant a level of review more rigorous than the deferential arbitrary and

capricious standard. Citing our opinion in Stratton v. E.I. DuPont De Nemours & Co.,

363 F.3d 250 (3d Cir. 2004), the District Court also found that any conflict of interest was

tempered by Bayer’s retention of Kemper as an independent third party claims

administrator with responsibility to make initial benefits determinations. Accordingly,

the District Court applied only a “slightly heightened” version of arbitrary and capricious

review.

       Krensavage contends that the District Court erred in determining the appropriate

standard of review, arguing that Bayer not only operated under a conflict of interest, but

also interfered with the initial evaluation of her application by Kemper, thus destroying

                                              5
any neutrality in the decision-making process. She asserts that the denial of benefits must

be examined with a “‘high degree of skepticism.’” (Appellant’s Br. at 38, quoting Pinto,

214 F.3d at 394.)

        Contrary to Krensavage’s assertions, there is no basis for scrutinizing the benefits

denial at a level more intense than that employed by the District Court. Indeed, it is

doubtful that even a “slightly heightened” standard of review should have been applied

here.

        “[W]e have noted that a situation in which the employer establishes a plan, ensures

its liquidity, and creates an internal benefits committee vested with the discretion to

interpret the plan’s terms and administer benefits does not typically constitute a conflict

of interest.” Stratton, 363 F.3d at 254-55 (internal quotations and alterations omitted). In

this case, benefits are paid from a trust, not from Bayer’s operating budget. It has created

an internal benefits committee, and added the intercession of an independent claims

administrator, who has no financial incentive to deny claims. It is thus doubtful that there

was any financial conflict of interest burdening the consideration of Krensavage’s LTD

application. Moreover, the so-called interference with Kemper’s initial review of

Krensavage’s application would not warrant increasing the level of review as it is the

final decision of the ERISA Review Committee that is at issue. See Hanna v. Delta

Family-Care Disability and Survivorship Plan, No. 3:04CV1333, 2006 WL 1885181, at

*1 n.2 (M.D. Fla. July 7, 2006).

        We need not decide, however, whether the District Court’s slight heightening of

                                              6
the arbitrary and capricious standard was error. It is sufficient to find that no greater than

a slight heightening was appropriate.

       Applying the “slightly heightened” standard of review, we agree with the District

Court that the ERISA Review Committee acted well within its discretion in denying

Krensavage’s application. The Committee was presented with substantial evidence that

Plaintiff was not totally disabled, including the opinions of several physicians. Although

Krensavage offered opinions that she was unable to perform any work, the dispute among

health care professionals does not make the Committee’s decision arbitrary and

capricious. Stratton, 363 F.3d at 258.

                                             IV.

       As to her ADA employment discrimination claim, Krensavage contends that the

District Court erred in applying judicial estoppel to find that plaintiff could not show that

she was a “qualified individual with a disability.” The District Court held that

representations made by Krensavage in her SSDI application and LTD benefits appeal

that she was “totally disabled” precluded her from showing that she could perform the

duties of her job at Bayer.

       A threshold requirement in a disability discrimination case under the ADA is that

the plaintiff be a “qualified individual with a disability.” To satisfy this requirement, the

plaintiff must show, inter alia, that she can perform the essential functions of her job,

with or without reasonable accommodation. 42 U.S.C. § 12111(8). A “totally disabled”

person, by definition, cannot perform the essential functions of her job, regardless of the

                                              7
accommodation.

       We are satisfied that the District Court properly found that Krensavage was

estopped from showing that she was qualified to perform the essential duties of her

employment position with Bayer. “[A] plaintiff’s sworn assertion in an application for

disability benefits that she is, for example, ‘unable to work’ will appear to negate an

essential element of her ADA case–at least if she does not offer a sufficient explanation.”

Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999). In fact, “an ADA

plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier

SSDI total disability claim. Rather, she must proffer a sufficient explanation.” Id. Such

an inconsistency was present here, and the record contains no explanation for the

inconsistency.1

                                             V.

       Claiming that she was terminated “for no reason other than having asserted a

disability from performing the requirements of her job in support of her claim for LTD




   Krensavage argues that it was error to apply judicial estoppel here because the
possibility of a “reasonable accommodation” is not addressed in the applications she
made for SSDI or LTD benefits. The only accommodation Krensavage suggested,
however, was extended unpaid leave, which certainly does not suggest an ability to
perform the essential functions of her job. Furthermore, it has been recognized that an
open-ended disability leave is not a reasonable accommodation under the ADA where, as
here, the plaintiff does not present evidence of the expected duration of her impairment.
See, e.g., Byrne v. Avon Products, Inc., 328 F.3d 379, 380-81 (7th Cir. 2003); Rascon v.
U.S. West Communications, Inc., 143 F.3d 1324, 1334 (10th Cir. 1998). Thus, the failure
to grant her indefinite leave could not constitute a failure to make a reasonable
accommodation of her disability.

                                              8
benefits,” (Appellant’s Br. at 56), Krensavage argues that the District Court erred in

granting summary judgment on her ERISA retaliatory discharge claim. We are satisfied

that the record lacks any direct or circumstantial evidence of retaliatory intent on the part

of Bayer. The undisputed facts are that Krensavage did not receive medical clearance to

return to work and had exhausted all available leave time when her employment was

terminated. Moreover, the termination was made conditional, so that her employment

would be reinstated if her appeal of the denial of LTD benefits was successful. Under

these circumstances, no reasonable fact-finder could draw an inference of an intent to

retaliate against Krensavage for having pursued LTD benefits.

                                             VI.

       For the foregoing reasons, we will affirm the District Court’s grant of summary

judgment for Defendants.




                                              9
