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. : 

___________________________________ :

STATEMENT OF UNDISPUTED FACTS OF DEFENDANT AETNA INC., 

d/b/a AETNA U.S HEALTHCARE AND AETNA LIFE INSURANCE COMPANY 

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

(“Aetna”), by and through its undersigned attorneys and pursuant to this Court’s June 12, 2003 

Order, hereby submits this Statement of Undisputed Facts in support of its Motion for Summary 

Judgment. The following facts are undisputed and require summary judgment in Aetna’s favor: 

I. HISTORY OF THE CASE 

1. Plaintiff Michelle Ricci became disabled from her position as a “Clinical 

Research Assistant” at Covance in July of 1995. AR23.1

 

2. Aetna approved her claim for Long Term Disability benefits on May 14, 1996, 

after ordering an Independent Medical Examination (“IME”). AR 36. 

3. At the onset of her disability, Plaintiff claimed disability due to delayed sleep 

phase syndrome, depression and chronic fatigue syndrome. AR 46, 48. 

 

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 All references to the Administrative Record will appear in the following form: AR ##. The administrative record 

is filed with this Statement of Undisputed Facts and Aetna’s Motion for Summary Judgment. 

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4. Plaintiff was under the care of a psychiatrist, Stephen L. Schwartz. AR 23. 

5. Dr. Schwartz completed all Attending Physician Statements and Functional 

Capacity Evaluation Forms, requested by Aetna in order to continue to certify Plaintiff’s 

disability, pertaining to Plaintiff. AR 308, 317, 323, 334, 336, 339, 354, 356, 378, 380. 

6. Plaintiff did not receive regular treatment from any other physician besides her 

psychiatrist. 

7. The IME performed in May 1996 confirmed her disability, but noted that her 

condition was “temporary.” AR 311. 

8. In May, 1998, Aetna requested another IME of Plaintiff to ascertain her status. 

AR 88. 

9. The IME was performed on June 1, 1998 by Dr. James Bonner. Dr. Bonner 

concluded that Plaintiff was capable of full time unrestricted work activity, and that there was no 

evidence of any physical impairment. AR 319-321. 

10. In October, 1998, Aetna forwarded a copy of Dr. Bonner’s IME report to Dr. 

Schwartz, Plaintiff’s psychiatrist. AR 98. 

11. Because Dr. Schwartz disagreed with Dr. Bonner’s conclusion that Plaintiff could 

return to work (AR 326), Aetna ordered another IME with an infectious disease specialist. AR 

102. Dr. Kemler, Aetna’s medical director, noted that the IME was necessary because there 

were two conflicting opinions regarding whether or not Plaintiff was disabled. AR 102.

12. In January of 1999, Dr. Russell J. Stumacher conducted an IME of Plaintiff. AR 

329. Dr. Stumacher concluded that “at least by history,” Plaintiff conformed to the standard 

CDC criteria for chronic fatigue syndrome. AR 331. He noted some uncertainty due to the fact 

that Plaintiff was pregnant at the time, and recommended reevaluation. AR 331. 

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13. Aetna then attempted to schedule another IME after the birth of Plaintiff’s second 

child. AR 123. 

14. Several IME appointments were canceled either because of conflicts, or because 

Plaintiff refused to attend IME’s more than three to five miles from her home, or because she did 

not like the location of the IME. AR 137. 

15. Accordingly, Aetna forwarded the file to Network Medical Review Company 

(“NMR”) for an independent review by a psychologist and an internal medicine doctor. AR 142, 

341 – 350. 

16. Dr. Mark A Moyer, a board-certified Internal Medicine and Infectious Disease 

specialist, after reviewing all medical records from Dr. Schwartz and a report of a sleep study by 

Dr. James M. Youakim in June, 1995 (AR 296), three IME Reports, a letter from Plaintiff, and 

internal notes from Aetna (AR 341) determined that Plaintiff reported some of the symptoms of 

chronic fatigue syndrome, but that there was no objective evidence documenting impairments 

from the more telling symptoms of this syndrome -- neuro muscular deficits, lack of stamina, 

cognitive dysfunction, fogginess or difficulty with concentration. AR 343 

17. Dr. Moyer also stated that she did not meet the “exclusion criteria” for diagnosis 

of chronic fatigue syndrome, as stated by the Centers for Disease Control. AR 343. 

18. Further, Dr. Moyer noted that Dr. Schwartz’s reported diagnosis of 

“undifferentiated somatoform disorder” specifically precludes a diagnosis of chronic fatigue 

syndrome. AR 343. 

19. Dr. Robert G. Slack, a psychiatrist, reviewed the same records, and concluded that 

there was no psychiatric disorder which disabled Plaintiff from performing the essential 

functions of her job. AR 345. 

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20. He took note of the fact that Plaintiff became pregnant, delivered and was now 

raising two children during the term of her disability. Id. He stated: “It seems difficult to equate 

this ability with total inability to perform her job functions.” Id. 

21. He also stated that he spoke with Dr. Schwartz, who believed that Plaintiff was 

disabled due to her chronic fatigue syndrome and not due to her diagnosed somatoform disorder. 

AR 346. 

22. On May 31, 2000, after reviewing the reports from NMR, and all of Plaintiff’s 

medical records, Dr. Kemler determined that Plaintiff was capable of returning to work, and 

ordered a transferable skills analysis and labor market survey. AR 351, AR 148. 

23. The labor market survey revealed five (5) positions within a fifty (50) mile radius 

of Plaintiff’s home that would pay a reasonable wage. AR 151. 

24. Before formally terminating Plaintiff’s claim, Aetna asked for updated medical 

records to ascertain Plaintiff’s status. AR 159. 

25. Aetna also ordered a home interview of Plaintiff. AR 175. 

26. Aetna also obtained another IME performed by an infectious disease specialist, 

Dr. Oksana M. Korzeniowski. Dr. Korzeniowski concluded that there was no objective data to 

support the diagnosis of chronic fatigue syndrome. AR 370. 

27. Dr. Korzeniowski stated that certain blood tests should be performed to determine 

whether Plaintiff suffered from some other disorder that mimics chronic fatigue syndrome. Id. 

She noted that if these tests were normal, then there was no basis to conclude that Plaintiff was 

disabled. Id. 

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28. Aetna then wrote a letter to Dr. Schwartz, requesting the results of the basic blood 

tests indicated by Dr. Korzeniowski. AR 185, 218. Aetna specifically requested that Dr. 

Schwartz inform Aetna if another doctor would have these results. Id. 

29. Dr. Schwartz responded: “I have not ordered any blood tests for Ms. Ricci, and 

have limited my care to the psychological / psychiatric sequelae of her condition.” AR 218. 

30. As of October 3, 2000, Plaintiff had not seen any physician but her psychiatrist, 

Dr. Schwartz, for her condition. AR 359. She stated that she only saw Dr. Schwartz every 

other month. Id. 

31. Based on the IME reports, the NMR Reports, and the note from Dr. Schwartz, 

Aetna concluded that Plaintiff did not suffer from a physical condition. AR 186, 222. Instead, 

there was only support in the records for a psychiatric disorder. Id. 

32. Because the Plan applicable to Plaintiff’s claim for long term disability benefits 

only provided twenty-four (24) months of coverage for a mental/nervous condition, Plaintiff was 

no longer entitled to benefits under the terms of the Plan. AR 222. 

33. Plaintiff submitted an appeal of this decision. AR 273. 

34. In conjunction with her appeal, Plaintiff submitted a letter from her psychiatrist 

which stated that his care of her “had been directed to the sequelae of her chronic fatigue 

condition.” He further stated “My treatment has been directed at those secondary symptoms 

[sadness and anxiety], as opposed to the basic disorder, her chronic fatigue, which is a complex 

condition representing an, as yet, inadequately explicated physical medical disorder.” AR 275. 

35. Accordingly, no physician was treating Plaintiff for Chronic Fatigue Syndrome. 

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36. Plaintiff submitted no other medical information with the appeal. She did not 

submit the basic blood tests that Aetna sought. She did not submit any evidence that she was 

under the treatment of any doctor for her “basic disorder” of chronic fatigue syndrome. 

37. On December 19, 2001, Aetna determined to uphold the termination of Plaintiff’s 

LTD benefits. AR 212. 

38. Again, Aetna determined that Plaintiff was not under the care of a physician for a 

physical condition, but was only receiving psychiatric care. AR 214. 

II. TERMS OF THE EMPLOYEE WELFARE BENEFIT PLAN 

A. “Certified Period of Disability” 

39. Under the terms of the applicable Managed Disability Plan (“the Plan”), benefits 

will be paid only during a Certified Period of Disability. Exhibit “A” at p. 3.2

40. Certification of a period of disability is defined by the Plan: 

You will be deemed to be disabled while either of the following 

applies to you: 

• During the period of a certified period of disability which 

ends right after the first 24 months benefits are payable: 

You are not able solely because of disease or injury, to 

perform the material duties of your own occupation; except 

that if you start work at a reasonable occupation you will 

no longer be deemed disabled 

• Thereafter during such certified period of disability: 

You are not able, solely because of disease or injury, to 

work at any reasonable occupation. 

Exhibit “A” at p. 3. 

41. The Plan states: 

 

2

 Attached as Exhibit “A” is the version of the Managed Disability Plan applicable to Plaintiff’s claim at the time her 

claim was terminated. The administrative record contains a Plan document applicable at the time Plaintiff became 

disabled. 

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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” at p. 3. 

42. The Plan further states: 

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

the following apply: 

 * * * 

• You are not under the care of a physician. 

Id. 

43. 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.” Exhibit “A” at p. 6 

44. The Plan states: 

Also, a certified period of disability will end after 24 monthly 

benefits are payable if Aetna determines that the disability is, at 

that time, caused to any extent by a mental condition (including 

conditions relating to alcoholism or drug abuse) described in the 

most current edition of the DSM. 

Exhibit “A” at p. 7. 

B. Administration of the Plan 

45. The Plan states that it is underwritten by Aetna, for purposes of monthly long 

term disability benefits after sixty months of a period of disability. Exhibit “A” at p. 2. 

46. Aetna administers claims for benefits under the Plan. AR 414 . Aetna makes all 

determinations as to the certification of a period of disability. Exhibit “A” at p. 3; AR 414. 

Aetna makes all determinations on applications for benefits and appeals. AR 414; Exhibit “A” at 

2, 3, 6, 11, 15. 

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47. The applicable Plan states the following: 

Aetna will have the right and opportunity to examine and evaluate 

any person who has requested certification of a period of disability 

at all reasonable times while that claim is pending or payable. 

Exhibit “A” at p. 15 . 

If, in Aetna’s judgment, you are able to participate, Aetna may, in 

its sole discretion require you to participate in An Approved 

Rehabilitation Program. 

Exhibit “A” at p. 11. 

The start of a certified period of disability is determined by Aetna. 

Exhibit “A” at p. 6. 

A period of disability will be certified by Aetna if, and for only as 

long as, Aetna determines that you are disabled. 

Exhibit “A” at p. 3. 

 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: July 28, 2003 

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CERTIFICATE OF SERVICE

 The undersigned hereby certifies that on this day a copy of the foregoing is being 

served upon the person(s) and in the manner set forth below: 

Via Overnight Mail 

Theodore A. Schwartz, Esquire 

1620 Locust Street 

Philadelphia, PA 19103-6392 

 

 PATRICIA C. COLLINS 

DATE: July 28, 2003 

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