Professional Documents
Culture Documents
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No. 95-2307
Plaintiff - Appellant,
v.
Defendant - Appellee.
____________________
____________________
Before
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Robert M. Duffy, with whom Sloan, Duffy, Sweeney & Gates was
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_____________________________
on brief for appellee.
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August 1, 1996
____________________
____________________
(Shapiro)
Income
brought
action under
claiming
term disability
issued
this
the
Employee
(ERISA), 29 U.S.C.
1132(a)(1)(B),
insurance policy
provided by
Retirement
under a long-
her employer
and
(Reliance).
After
judgment in
favor of defendant.
that the
court
opportunity
argument.
On appeal,
issued
to present
We affirm.
The
facts
denied due
its decision
court entered
plaintiff contends
also contends
district
erroneous.
process of law
without
additional evidence
She
when the
offering
her the
make a
closing
court
were as
or
FACTS
FACTS
_____
as
found by
the
district
motor
vehicle
returned
home.
accident.
Three
She
days
was
later,
began seeing an
remained
plaintiff
in his
treated
at the
however,
she went
applied
until May
for
12,
1992.
reemployment
with
In
and
to
care
scene
an
She
Morrissey, and
May of
her
1992,
employer,
advised
her to
"give it a
try."
In
hired, however,
April
of
1992,
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Shapiro
filed
provided
for
group
employees.
In
long-term
response,
Shapiro's treating
The
doctors did
stated
that
disability
they
maladies unrelated
benefits
insurance
Reliance sent
letters
to
Reliance,
disability
physicians in
were
with
treating
order to
to
Fleet's
three
evaluate her
July of
1992.
plaintiff
for
her disability
to
claim.
The
which
Two
of
claim.
of them
non-disabling
third,
Dr.
Morrissey, found
"indefinite
period,"2
office records.
the
the plaintiff to
be only
plaintiff
treatment,
that conclusion
was
for an
belied
by his
plaintiff to
advised
but
be "totally disabled"
that
on
May
she
partially disabled,
12,
could
1992,
try
the
to return
and that
last
to
date
her
he had
of
job
his
as
In
August
of 1992,
defendant
plaintiff's application
for benefits
1992
1992.
through
July 10,
retroactively approved
for the
Defendant then
period April
10,
requested
that
for
benefits
beyond
"Supplementary Report
"Physical Capacities
July
10,
1992.
It
Evaluation Form"
to be
sent
plaintiff
Benefits" and
filled out by
her
treating
physician.
Supplementary Report,
In
but the
portion to
Instead,
be
returned the
completed by
her
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an "Attending
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asthma and
emphysema.
Plaintiff never
submitted the
Physical
Defendant
physicians seeking
disabled.
next sent
letters
plaintiff's
Defendant received no
February of 1993,
directly to
In
telephone that
In March of
about his
wrote
back
treatment and
in
April
plaintiff's disability.
of
1993
providing
Dr.
Lombardi
information
about
disabled,
the period
or whether she
between May of
disabled during
treatment with
Dr.
Morrissey,
letter
and April
stated
that
accidents/incidents
symptoms.
In
of 1993.3
plaintiff
that
fact, as
could
plaintiff
Moreover,
Dr. Lombardi's
had
"denie[d]
have
produced
admitted at
any
the
prior
current
trial, she
had
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This
policy,
ceased to
benefits
would terminate
be totally disabled.
Since
when she
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as
soon
as she
the time
terms of defendant's
was so
in order
to
claim
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DISCUSSION
DISCUSSION
__________
I.
I.
Under the
terms of
defendant's policy,
plaintiff was
a result of a
criteria:
sickness or
injury covered by the policy, (2) that she was under the
care
of
"Elimination
physician,
Period," and
(3)
that
(4) that
she
she
completed
regular
so-called
submitted satisfactory
disability.
Engaging in a de
__
novo review of
____
plaintiff's claim,
v. Bruch,
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489 U.S. 101, 115 (1989), the district court found that plaintiff
did
not
satisfy
the
first,
second
or
fourth
of
these
We will
vacate
these
findings
only
if
they
are
clearly
Cir. 1990).
failed to submit
Morrissey
First,
defendant.
erroneous.
the district
court
found
satisfactory proof of
This finding is
did aver
that plaintiff
that, as
of
April 7,
had
to
Although Dr.
1992, plaintiff
was
totally disabled, one month later, on May 12, 1992, Dr. Morrissey
plaintiff
only
did attempt
refused
because
Defendant, aware
could try
to return to
work at that
of the
of
that Dr.
to return to
lack
Morrissey had
work.
Indeed,
an available
position.
advised plaintiff
she
whether she
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remained
obtain
additional proof
attempts,
plaintiff
disability.
to
never
engaged in numerous
support her
produced
claim.
any
attempts to
Despite these
evidence
of
her
clearly erroneous.
The
was not
that plaintiff
was regularly
seeing any
medical provider
from
May 12, 1992, when she ceased treatment with Dr. Morrissey, until
There was
plaintiff
was not
period.
under the
The
all physical
treatment of
a physician
that
was not
clearly in error.
Finally, the
not,
in fact,
Although
plaintiff
totally
Dr. Lombardi
to be
disabled
testified
during
at
district court
the
trial
relevant
that
that her
he
was
period.
believed
disability had
evidence,
was
which
could
have
caused
her
current
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other accidents
symptoms.
(In
fact,
plaintiff
had
complaining
missed
work
of neck and
for
nine
months
back problems.)
in
1989
after
ignored the fact that plaintiff had reapplied for work just after
In light
of the
conflicting evidence,
the
been filed.
district court
was
II.
II.
court
workers, and
day,
the
district
court
The district
directed
the
parties
to
depose
and to
few weeks
later.
Approximately
November 2,
Plaintiff now
her
due
process
opportunity
additional
of
law
for closing
argument,
evidence, prior to
states that
if given the
evidence that an
or
process
claim
or
failed
for
to
the
provide
an
submission
of
Plaintiff
have presented
in April of
decision was
relevant
it
1995.
because
court denied
otherwise
by
admissible,
failing
to
plaintiff
raise it
to
waived
the
court
her
due
below.
Poliquin v. Garden Way, Inc., 989 F.2d 527, 531 (1st Cir. 1993).
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_________________
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evidence
or to
make a
closing
Moreover,
opportunity to present
argument in
additional
the eleven
months
to alter or
CONCLUSION
CONCLUSION
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court is affirmed.
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Costs to appellees.
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