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Giordano v. Providence Health System in Washington

September 21, 2010


The opinion of the court was delivered by: Ralph R. Beistline United States District Judge



Plaintiff filed a Complaint to enforce the terms of an ERISA plan under ERISA § 502(a)(1)(B) and for other equitable relief under 29 U.S.C. § 1132(a)(1) & (3) and (d)(2)*fn1 . Plaintiff seeks a decision from this Court that she is entitled to Long Term Disability benefits under the Plan, an award of benefits, and injunctive relief requiring each Defendant to undertake such action that is required to assure payment of the past due benefits, including continuation of those benefits. She also seeks costs, interest, and attorney's fees.*fn2 The administrative record has been lodged with the Court and the parties have filed briefing.*fn3 In addition, Defendants have filed a copy of the surveillance CD relied upon by Defendants in their denial of benefits.

The matters have been fully briefed and oral argument was not requested. The Court being fully advised, now enters the following order.


The facts leading up to this appeal are generally undisputed. Kathy Giordano was a Resident Assistant at Providence's Mary Conrad Center (a nursing home) from July 1, 1998, until May 15, 2004, when she fell and was injured at work while assisting an Alzheimer patient. She has not worked since that date. Giordano received workers' compensation benefits for a period of time.*fn4 In January 2005, a determination was made that she had recovered from her back injury and that she no longer qualified for Workers' Compensation benefits.*fn5

A Long Term Disability Plan was provided by her Employer, Providence Hospital.*fn6 Following the mandatory waiting period, LINA awarded Plaintiff full benefits under the Plan, which were paid monthly without interruption for two years, until November 11, 2006.*fn7 In addition, the Social Security Administration found Giordano disabled from all occupations for which she was suited from May 15, 2004, to April 19, 2006, and continuing.*fn8

In May of 2006, LINA informed Giordano that an investigation was being conducted to determine her eligibility for benefits beyond November 22, 2006, since as of November 11, 24 months of benefits having been paid, the Plan's applicable definition of disability changed from an inability to perform her "own occupation" to "any occupation."*fn9 Giordano was invited to submit evidence in support of her claim and LINA sought information from the medical providers identified by Plaintiff.

LINA notified Plaintiff on November 22, 2006, that the record did not establish her to be unable to perform the requirements of other identified occupations for which she was qualified. Since she no longer met the Plan's definition of disability, her benefits were discontinued as of November 22, 2006.*fn10 LINA relied in part on a surveillance video taken of Plaintiff in July 2006, which LINA deemed revealed abilities inconsistent with information Plaintiff was providing to her treating physicians.

The denial letter gave Giordano 180 days to appeal the denial.*fn11 An appeal was filed, but was not included in the Administrative Record.*fn12 On April 24, 2007, LINA denied Giordano's appeal.*fn13 However, LINA offered Giordano another 180 days to appeal that denial, which she did.

Ultimately, Giordano's counsel submitted additional evidence, including a psychological report from ANP Gerteisen and the April 19, 2007, Social Security decision.*fn14 ANP Gerteisen indicated that Giordano had serious mental problems (bi-polar disorder with rapid cycling) and was hospitalized due to a medication overdose. Additional medical records from a psychiatrist indicated Giordano was diagnosed with bipolar disorder with mixed episodes and rapid cycling.*fn15 On September 18, 2007, LINA again denied Giordano's appeal.*fn16 LINA's final denial indicated that a Board Certified Psychiatrist had reviewed all available records and determined that they did not support a mental illness disability from May 15, 2004, onward. Furthermore, the file was reviewed by a Board Certified Orthopedic Surgeon, who concluded that there were no physical limitations which would prevent Giordano from performing any occupation as of November 10, 2006.*fn17 The review concluded that the record reflected "subjective complaints which appear excessive with evidence of symptom magnification and secondary gain."*fn18 This appeal followed.


The parties disagree as to the appropriate standard of review. Typically, a denial of benefits challenged under § 1132(a)(1)(B) is reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.*fn19

In that case, the court reviews the administrator's decision for "abuse of discretion," which is a more deferential standard.

Defendants argue that the Plan language confers discretionary authority on LINA in this case, and thus the Court should review LINA's benefits decisions under the abuse of discretion standard.*fn20

Plaintiff disputes that the LTD Plan contains sufficient language to warrant an abuse of discretion standard and that a de novo standard should be applied.*fn21 The Court concludes that the end result in this matter is the same under an abuse of discretion standard or under the stricter de novo standard. Accordingly, without ...

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