1

 IN THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

_____________________________________ 

 : 

MICHELE RICCI : 

 : CIVIL ACTION 

 Plaintiff, : 

 : 

 v. : 02-CV-4330 

 : 

AETNA, INC. d/b/a AETNA U.S. : 

HEALTHCARE and AETNA LIFE : 

INSURANCE COMPANY : 

 : Electronically Filed 

 Defendants. : 

___________________________________ :

ORDER 

 AND NOW, this ____ day of ____________________, 2002, upon consideration of 

Plaintiff’s Motion for Summary Judgment, and the response of Aetna, Inc., d/b/a/ Aetna U.S. 

Healthcare and Aetna Life Insurance Company thereto, it is hereby ORDERED that said Motion 

is DENIED. Plaintiff’s Amended Complaint is DISMISSED WITH PREJUDICE, and 

judgment is hereby entered in favor of Defendants. 

 BY THE COURT: 

 

 Savage, J. 

Case 2:02-cv-04330-TJS Document 35 Filed 09/05/2003 Page 1 of 14
 IN THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

_____________________________________ 

 : 

MICHELE RICCI : 

 : CIVIL ACTION 

 Plaintiff, : 

 : 

 v. : 02-CV-4330 

 : 

AETNA, INC. d/b/a AETNA U.S. : 

HEALTHCARE and AETNA LIFE : Electronically Filed 

INSURANCE COMPANY : 

 : 

 Defendants. : 

___________________________________ : 

RESPONSE IN OPPOSITION TO PLAINTIFF’S 

MOTION FOR SUMMARY JUDGMENT OF 

DEFENDANT AETNA INC. d/b/a/ 

AETNA U.S. HEALTHCARE AND AETNA LIFE INSURANCE COMPANY

 Defendants, Aetna Inc., d/b/a/ Aetna U.S. Healthcare and Aetna Life Insurance Company 

(“Aetna”), by and through its undersigned attorneys, hereby files this Response in Opposition to 

Plaintiff’s Motion for Summary Judgment. Plaintiff admits that she was not under the care of a 

physician for “Chronic Fatigue Syndrome itself” (Plaintiff’s Memorandum of Law at p. 9), and 

therefore Plaintiff was not disabled under the terms of the Plan. Accordingly, this Court must 

deny Plaintiff’s Motion for Summary Judgment and enter judgment in favor of Aetna. Aetna 

incorporates by reference herein its Motion for Summary Judgment, Statement of Undisputed 

Facts and Response to Plaintiff’s Statement of Undisputed Facts. 

THE APPROPRIATE STANDARD OF REVIEW 

Plaintiff argues that she is entitled to summary judgment because Aetna operated under a 

conflict of interest. Plaintiff misstates the law and the facts. 

Case 2:02-cv-04330-TJS Document 35 Filed 09/05/2003 Page 2 of 14
2

 The existence of a conflict of interest does not entitle Plaintiff to summary judgment, but 

only requires the Court to apply a more heightened standard of review, depending upon the 

degree of the conflict. Pinto v. Reliance Standard Life Insurance Company, 214 F.3d 377, 393 

(3d Cir. 2000). Aetna acknowledges that, under Pinto, it acted as both funder and claims 

administrator for the Plan. However, there is no other evidence of any conflict of interest that 

would require anything more than a highly deferential standard of review. 

 Plaintiff relies upon Dorsey v. Provident Life and Accident Insurance Co., 167 F. Supp. 

2d 846 (2001) and Cohen v. Standard Insurance Co., 155 F. Supp. 2d 46 (2001), to support her 

argument that a more heightened degree of scrutiny applies. However, both cases presented 

procedural and substantive anomalies that are not present in this case. 

 In Dorsey, the Court based its conclusion that a more heightened degree of scrutiny 

applied on the following unusual set of facts: the defendant reversed its initial decision to 

provide benefits, ignored internal recommendations to reinstate benefits, selectively relied upon 

a doctor’s description of plaintiff’s limitations, allowed the same doctor who reviewed the initial 

claim to review his own work on appeal, and did not allow the appeals analyst to function 

properly as an independent review analyst who could reverse the decision, but instead required 

him to confront the initial decision makers. Dorsey, 166 F. Supp. 2d at 853-54. 

 In Cohen, the Court based its conclusion that a more heightened degree of scrutiny 

applied to an equally aberrant set of facts: the defendant ignored credible contradictory evidence, 

relied upon the opinion of non treating physicians over treating physicians,1 and selectively 

relied upon only certain medical records. Cohen, 155 F. Supp. 2d at 353. 

 

1

 At the time of the Cohen decision, case law allowed a reviewing court to require a claim administrator to give 

more weight to the opinion of a treating physician than to that of a non-treating reviewing physician. Defendant’s 

failure to do so in Cohen thus was a departure from the expected norm. In Black & Decker v. Nord, 123 S.Ct. 1965, 

1967 (2003), the United States Supreme Court held that an ERISA claims administrator is not required to accord any 

Case 2:02-cv-04330-TJS Document 35 Filed 09/05/2003 Page 3 of 14
3

 None of these defects appears in Aetna’s handling of Plaintiff’s claim. Aetna’s claims 

and appeals procedures work independently of each other, so that the appeals analyst can review 

the evidence independently and make a determination. Aetna reviewed every single piece of 

medical evidence that came in, but in the end relied on the statements of Plaintiff’s own 

physician and Plaintiff herself to deny the claim. There is no evidence that, for example, Aetna 

relied upon only selected portions of medical reports and ignored other parts of those reports. 

On the contrary, with each IME that was performed, Aetna reviewed the conclusions of the IME 

with a physician, and followed up with the recommendations of the IME physician and its own 

physician. More importantly, there is no evidence anywhere in the record to contradict the fact 

that Plaintiff did not see a doctor for “Chronic Fatigue Syndrome itself” (in Plaintiff’s own 

words, see Plaintiff’s Motion for Summary Judgment at p. 9) during her entire certified period of 

disability. 

 The record thus reflects that there are no procedural or substantive anomalies at all that 

would indicate that any purported conflict of interest “played a role” in Aetna’s decision to 

terminate Plaintiff’s benefits because she clearly failed to comply with a requirement of the Plan 

in that she was not under the care of a physician for a physical condition. Cohen, 155 F. Supp. 

2d at 353. 

 Instead, this case is more like Sapovits v. Fortis Benefits Insurance Inc., 2002 WL 

31923047, at *15-16 (E.D. Pa. February 11, 2002)(Baylson, J.). In Sapovits, the Court noted that 

there were no procedural irregularities to support a more heightened degree of scrutiny, 

 

special deference to the opinions of treating physicians. Plaintiff argues that the holding of Nord does not apply to 

this Court’s determination of the appropriate standard of review. Plaintiff is wrong. The issue squarely presented to 

the Supreme Court in Nord was whether the “treating physician rule” set out in regulations concerning Social 

Security disability determinations applied to disability determinations under ERISA Plans. Id. If the law does not 

require even an allegedly conflicted administrator to accord deference to the opinions of treating physicians, the 

weight given by the administrator to the treating physician’s opinion therefore cannot be considered as a factor in 

determining whether the conflict played a role in the disability determination. 

Case 2:02-cv-04330-TJS Document 35 Filed 09/05/2003 Page 4 of 14
4

regardless of the defendant’s decision to rely upon the opinions of physicians who had reviewed 

the plaintiff’s written medical records and reports, but had not examined plaintiff. The Court 

specifically distinguished Cohen, noting that none of the procedural irregularities present in 

Cohen were evident. 

 Similarly, here there is no evidence of any procedural or substantive irregularities. 

Instead, Plaintiff relies on misleading statements of the facts of record. For example, Plaintiff 

argues that Aetna failed to have her evaluated by a physician who specialized in CFS. This 

argument is absurd for several reasons. First, Plaintiff did not even seek treatment from a 

physician who specializes in CFS or in infectious disease. If Plaintiff herself did not seek 

treatment from such a specialist, she can hardly complain that Aetna did not recognize that her 

claim required evaluation by one. Second, Aetna had no less than three infectious disease 

specialists, a physiatrist, and two psychiatrists either examine Plaintiff or review Plaintiff’s 

records. AR 311, 319, 329, 341, 368. Generally, individuals diagnosed with CFS are treated by 

infectious disease specialists. 

 Plaintiff also claims that Aetna selectively relied upon the findings of the doctors who 

performed IME’s and records reviews, and that it rejected the opinion of Dr. Schwartz, 

Plaintiff’s treating physician. Plaintiff’s argument misses the point. Plaintiff admits that she was 

not being treated by a physician for “Chronic Fatigue Syndrome itself” (Plaintiff’s Motion for 

Summary Judgment at p. 9). Accordingly, this case turns on whether Plaintiff was being treated 

by a physician for her disabling condition, Chronic Fatigue Syndrome. Aetna relied upon the 

report of Dr. Korzeniowski and a letter from Dr. Schwartz in terminating Plaintiff’s claim. Dr. 

Korzeniowski asked to see the results of certain blood tests to exclude other syndromes that 

mimic CFS, and Dr. Schwartz stated that he had not done those blood tests because he was not 

Case 2:02-cv-04330-TJS Document 35 Filed 09/05/2003 Page 5 of 14
5

treating Plaintiff for CFS. Aetna therefore was fully entitled to terminate plaintiff’s benefits 

based on the fact that she was not receiving treatment from a physician for her (allegedly) 

disabling condition. Moreover, Aetna reviewed and relied upon each medical report it received 

and followed the recommendations of those reports. In fact, Aetna even forwarded IME reports 

to Plaintiff’s physician for comment and relied upon his comments in determining whether to 

continue disability. AR 326. 

 Plaintiff seems to believe that the fact that Aetna paid disability benefits to Plaintiff from 

July of 1995 until August of 2001 somehow indicates a conflict of interest.2 To the contrary, this 

indicates that Aetna followed its procedures and those mandated by ERISA to carefully and 

thoroughly review all of the evidence in support of Plaintiff’s claim. The fact that Plaintiff 

received benefits for that long proves only that Aetna was not precipitous in its decision to 

terminate benefits and does not change the fact that both Plaintiff and her psychiatrist informed 

Aetna that Dr. Schwartz was treating only her psychological or psychiatric symptoms (regardless 

of their origin), and that she was not receiving any treatment for the allegedly disabling condition 

of CFS. 

 Finally, Plaintiff states that Aetna “ignored” the recommendation of Dr. Korzeniowski 

that Plaintiff should have basic blood tests performed. Again, the argument is absurd. Aetna 

requested this information from Plaintiff’s identified physician, because these are standard tests 

performed in diagnosing CFS, and excluding other conditions; Aetna was therefore entitled to 

consider the fact that these tests had not been performed as indicative of any or all of the 

following: that she was not being treated for CFS, or that she did not have CFS, or that the 

ailment she did have was not of sufficient severity to disable her. Dr. Schwartz confirmed at 

least one of these conclusions, stating that he did not perform the tests because he was not 

 

2

 One wonders what Plaintiff would have argued if Aetna had not made payments during that period. 

Case 2:02-cv-04330-TJS Document 35 Filed 09/05/2003 Page 6 of 14
6

providing treatment for “Chronic Fatigue Syndrome itself.” Besides the fact that it was 

Plaintiff’s burden to provide this basic evidence of her disability, and besides the fact that Aetna 

is not Plaintiff’s physician, and cannot require her to undergo those blood tests, the results of 

these tests are now irrelevant. Plaintiff was not under the care of a physician for a physical 

condition, and therefore she is not eligible for benefits under the terms of the Plan. 

 Accordingly, Aetna’s termination of Plaintiff’s disability is entitled to great deference, 

despite the fact that Aetna administered and funded the Plan. There is no evidence that any 

conflict of interest played any role in its decision to terminate benefits. Instead, the evidence 

shows that Aetna followed its own procedures and those mandated by ERISA, and carefully and 

thoroughly reviewed all of the medical evidence in support of Plaintiff’s claim. 

AETNA PROPERLY TERMINATED PLAINTIFF’S BENEFITS

 Under any standard of review, Plaintiff’s own motion illustrates that Aetna properly 

terminated Plaintiff’s benefits. The above discussion of Plaintiff’s arguments regarding the 

appropriate standard of review illustrates the lengths to which Aetna went to provide a full and 

fair review of Plaintiff’s claim. Aetna’s determination was consistent with the language of the 

Plan and the evidence before Aetna. 

 A few provisions of the Plan bear repeating here. The Plan states: 

You will not be deemed to be under the care of a physician on 

any day more than 31 days before the date he or she has seen and 

treated you in person for the disease or injury that caused the 

disability. 

Exhibit “A” to Aetna’s Statement of Undisputed Facts at p. 3 (emphasis added). The Plan 

further states: 

Certification of a period of disability will be denied if any one of 

the following apply: 

Case 2:02-cv-04330-TJS Document 35 Filed 09/05/2003 Page 7 of 14
7

 * * * 

• You are not under the care of a physician. 

Id. Under the terms of the Plan, the certified period of disability ends on “the date you cease to 

be under the care of a physician.” Id. at p. 6.3

 Plaintiff was not, during her entire certified period of disability, under the care of a 

physician for CFS.4 Yet Plaintiff affirmatively claims that she was disabled due to CFS. 

Plaintiff’s Statement of Undisputed Facts at ¶ 21. Plaintiff nonetheless admits, as she must, that 

she was not under the care of a physician for “Chronic Fatigue Syndrome itself.” Plaintiff’s 

Motion for Summary Judgment at p. 9. Plaintiff’s psychiatrist stated on two occasions that he 

was not treating her for CFS, but rather for the “psychological / psychiatric sequelae” or the 

“sadness and anxiety” resulting from her CFS. 

 Thus, there is no dispute of material fact that Plaintiff was not under the care of a 

physician for the condition that caused her disability (CFS) at any time from July of 1995 to 

August of 2001. Aetna properly terminated Plaintiff’s certified period of disability, and Aetna is 

entitled to judgment as a matter of law. It also bears repeating here that treatment for the sadness 

and anxiety associated with a physical condition is not treatment for that physical condition. 

 

3

 Plaintiff argues that the plan documents “fail to contain language that gives defendant Aetna, the ability to 

terminate the payment of long term disability benefits when the claimant is not being currently treated for her 

physical condition (Chronic Fatigue Syndrome) which is the cause of her disability, but is still under the care of a 

physician who is treating the mental sequeale of the physical condition.” The language cited herein demonstrates 

the infirmity of this argument. Every single version of the Plan at issue in this case contains the quoted language. 

4

 There is no dispute of material fact that this is the basis of Aetna’s decision. Aetna’s initial termination letter 

stated: “Since you are being treated by Dr. Schwartz for a psychological / psychiatric condition, and you are not 

being treated by a physician for a physical disability, your Long Term Disability benefits will terminate.” AR 222. 

Aetna’s appeal letter, upholding the termination, stated: “Additional information in Ms. Ricci’s file indicates her 

treating physician is Dr. Schwartz. Information received from Dr. Schwartz reports he is treating her only for a 

psychological / psychiatric condition. Therefore, Ms. Ricci is not under the care of a physician with regards to her 

physical impairment. In view of the above, we are maintaining our termination decision based on contractual 

limitations.” AR 214. 

Case 2:02-cv-04330-TJS Document 35 Filed 09/05/2003 Page 8 of 14
8

 Plaintiff states in her Motion: “Defendant Aetna made the assumption that if the plaintiff 

was not being treated by a physician for Chronic Fatigue Syndrome itself at the time just before 

termination, that she must not have Chronic Fatigue Syndrome and therefore, she has no physical 

disability and thus she is not disabled.” Plaintiff’s tortured attempt to mislead this Court as to the 

language of the Plan and the reason for the termination of benefits must fail. 

 First, to reiterate, Plaintiff has admitted that she was not under the care of a physician for 

“Chronic Fatigue Syndrome itself.” This admission alone justifies Aetna’s termination of her 

benefits under the terms of the Plan. Second, Aetna did not conclude that Plaintiff did not have 

CFS, or that she did not have a physical disability. Instead, Aetna applied the language of the 

Plan that requires Plaintiff to be under the care of a physician for the condition that caused the 

disability in order to certify a period of disability. Plaintiff admitted that she was not under the 

care of a physician for CFS, so Aetna could not certify her disability. 

 Plaintiff makes these tortured arguments in order to mislead the Court as to the evidence 

it should consider in reviewing Aetna’s actions. Plaintiff is attempting to make relevant the 

mountains of medical evidence that Aetna reviewed, when the only real issue here is the 

language of the Plan and the type of treatment Plaintiff was receiving. Thus Plaintiff’s 

arguments regarding the medical evidence are incorrect and misleading. For example, Plaintiff 

argues that none of the doctors who examined Plaintiff or reviewed her medical records 

determined that she did not have CFS. This is simply untrue. AR 368, 341. Dr. Moyer 

concluded that Plaintiff showed no objective evidence of the symptoms of CFS, and that she did 

not meet the exclusion criteria for CFS. AR 341-343. Dr. Korzeniowski concluded that there 

was no objective data to support the diagnosis of chronic fatigue syndrome. AR 368-370. 

Plaintiff also argues that Dr. Korzeniowski was on Aetna’s “payroll.” This is also untrue. Dr. 

Case 2:02-cv-04330-TJS Document 35 Filed 09/05/2003 Page 9 of 14
9

Korzeniowski was hired by an independent third party to examine Plaintiff and review records. 

She is not and was not an Aetna employee. Finally, Aetna did not reject Dr. Korzeniowsi’s 

recommendations regarding blood tests. As set forth above, Plaintiff and her psychiatrist chose 

to ignore Aetna’s request rather than provide the requested information. Imagine Plaintiff’s 

indignation if Aetna had required her to undergo blood testing that her own physician had not 

recommended. Certainly, if Aetna had required Plaintiff to undergo blood tests, Aetna would 

now be defending itself against accusations of interfering with her treatment and the 

unauthorized practice of medicine. 

 Plaintiff also misunderstands Aetna’s position regarding her mental condition. Aetna’s 

denial letter includes a statement that Plaintiff exhausted her benefits for a mental condition. 

Once Aetna concluded that Plaintiff was not under the care of a physician for CFS, it had to 

examine the records for other evidence of disability. There is some reference in the records to 

depression and somatoform disorder. However, Aetna concluded that Plaintiff’s benefits with 

regard to these conditions were exhausted even if she were disabled due to a mental condition. 

This demonstrates Aetna’s adherence to procedure and careful review of the records, and that 

Aetna did not act arbitrarily or capriciously in terminating Plaintiff’s benefits.5

 Because Aetna properly applied the terms of the Plan to Plaintiff’s claim, and because 

Plaintiff admits that she was not under the care of a physician for CFS, the condition that caused 

her disability, Aetna is entitled to judgment in its favor as a matter of law. 

 

5

 In fact, in light of Plaintiff’s admission that she was not disabled due to a mental condition, Aetna did more than it 

was required to do in terminating Plaintiff’s claim. Aetna could have simply terminated based on the fact that 

Plaintiff was not under the care of a physician, and never referenced her right to benefits for a mental condition. 

Case 2:02-cv-04330-TJS Document 35 Filed 09/05/2003 Page 10 of 14
10

PLAINTIFF CANNOT STATE A BAD FAITH CLAIM AGAINST AETNA 

I. ERISA PREEMPTION 

 Plaintiff argues that this Court need not revisit the issue of ERISA preemption because 

this Court previously ruled on the issue. However, the Court has made no ruling on whether 

ERISA preempts Plaintiff’s bad faith claim, and in fact specifically declined to do so in the 

Order denying Aetna’s Motion to Dismiss. Further, case law since that decision, and the Court’s 

decision denying Aetna’s Motion for Permission to Appeal, requires that this Court find that 

ERISA preempts Plaintiff’s bad faith claims. 

 First, the United States Supreme Court recently created a new test for determining 

whether a law “regulates insurance” so as to be saved from ERISA preemption. In Kentucky 

Association of Health Plans, Inc. v. Miller, ___ U.S. ____, 123 S. Ct. 1471, 1479 (2003) the 

Court described the test: first, the law must be specifically directed to entities engaged in 

insurance; second, the law itself must substantially affect the risk pooling arrangement between 

insurer and insured. Cases in this district applying this new test have stated that even if the bad 

faith statute meets these criteria, it is still preempted if it conflicts with ERISA’s exclusive 

remedial scheme by providing an alternative remedy. McGuigan v. Reliance Standard Life 

Insurance Co., 256 F. Supp. 2d 345, 347 (E.D. Pa. 2003). 

 The McGuigan Court found that Pennsylvania’s bad faith statute regulates insurance, but 

that it did not substantially affect the risk pooling arrangement between insurer and insured. The 

Court relied upon the United States Supreme Court’s decision in Pilot Life that a Missouri bad 

faith statute that imposed a penalty upon insurers for its conduct towards insureds did not have 

the effect of spreading policyholder risk. Id. at 349. The McGuigan court also focused on the 

fact that the statute provides an alternative remedy to the exclusive remedies provided in ERISA. 

Case 2:02-cv-04330-TJS Document 35 Filed 09/05/2003 Page 11 of 14
11

Id. The McGuigan court concluded, as has every court that has looked at this issue, with the lone 

exception of the opinion of the Honorable Clarence Newcomer in Rosenbaum, that nothing in 

recent Supreme Court jurisprudence was intended to overrule Pilot Life’s holding that a statute 

cannot impose an alternative remedy to those remedies provided in ERISA’s exclusive remedial 

scheme. Id. at 349-50. 

 Because Pennsylvania’s bad faith statute would impose an alternative remedial scheme 

upon ERISA plans, ERISA preempts Plaintiff’s bad faith claims, and Aetna is entitled to 

judgment in its favor on those claims. 

II. THERE IS NO EVIDENCE OF BAD FAITH 

 ERISA preempts Plaintiff’s bad faith claim, and thus Plaintiff cannot state a claim as a 

matter of law. Notwithstanding this, the undisputed facts of this case demonstrate that Aetna did 

not act in “bad faith.” Plaintiff admits that in order to demonstrate that Aetna acted in bad faith, 

she will have to demonstrate that Aetna had no reasonable basis for terminating Plaintiff’s 

benefits, and that Aetna knew or recklessly disregarded its lack of a reasonable basis in 

terminating Plaintiff’s benefits. 

 It is undisputed that Plaintiff was not under the care of a physician for CFS. It is 

undisputed that the disability Plaintiff claims was caused by CFS. It is undisputed that the Plan 

requires Aetna to refuse to certify a period of disability, and thus terminate benefits, where the 

Plaintiff is not under the care of a physician. It is undisputed that a claimant is under the care of 

a physician, under the terms of the Plan, when she is being treated by the physician for the 

condition that caused her disability. It is undisputed that Plaintiff’s treating physician, Dr. 

Schwartz, is a psychiatrist. It is undisputed that psychiatrists do not treat CFS, and equally 

undisputed that even if they do, this psychiatrist stated that he was not treating this Plaintiff for 

Case 2:02-cv-04330-TJS Document 35 Filed 09/05/2003 Page 12 of 14
12

CFS. Finally, it is undisputed that Aetna relied upon the terms of the Plan requiring it to refuse 

to certify a period of disability where the claimant is not under the care of a physician for the 

condition that disabled her in terminating Plaintiff’s benefits. 

 Accordingly, Aetna had a reasonable basis for terminating Plaintiff’s benefits. In fact, 

Aetna had no choice but to terminate Plaintiff’s benefits under the terms of the Plan. 

CONCLUSION 

 For all the foregoing reasons, Aetna respectfully requests this Court to grant its Motion 

for Summary Judgment, dismiss Plaintiff’s claim with prejudice, and award Aetna its reasonable 

attorney’s fees pursuant to ERISA. 

 Respectfully submitted, 

OF COUNSEL: /s/ Patricia C. Collins________________________ 

ELLIOTT REIHNER 

SIEDZIKOWSKI & EGAN, PC PATRICIA C. COLLINS 

 Union Meeting Corporate Center V 

 925 Harvest Drive 

 Blue Bell, PA 19422 

 977-1000 

DATED: September 5, 2003

Case 2:02-cv-04330-TJS Document 35 Filed 09/05/2003 Page 13 of 14
CERTIFICATE OF SERVICE

 I, Patricia C. Collins, Esquire, hereby certify that on this date I served the 

foregoing upon the following and in the manner indicated below: 

Via First Class Mail, Postage Prepaid 

Theodore A. Schwartz, Esquire 

1620 Locust Street 

Philadelphia, PA 19103-6392 

 /s/ Patricia C. Collins 

 Patricia C. Collins, Esquire 

DATED: September 5, 2003 

 

Case 2:02-cv-04330-TJS Document 35 Filed 09/05/2003 Page 14 of 14