*Of the Northern District of California, sitting by

designation.

United States Court of Appeals

For the First Circuit

No. 02-2544

JANICE R. PERRY,

Plaintiff, Appellant,

v.

NEW ENGLAND BUSINESS SERVICE, INC.; HARTFORD LIFE 

INSURANCE COMPANIES, INC.; SETH A. CANTER; 

GROUP LONG TERM DISABILITY INSURANCE BENEFITS FOR 

EMPLOYEES OF NEW ENGLAND BUSINESS SERVICE, INC.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,

and Schwarzer,* Senior District Judge.

Bernard A. Kansky was on brief for appellant.

Richard L. Alfred, with whom Christopher A. Weals, was on

brief for appellees New England Business Service, Inc. and Seth A.

Canter.

David B. Crevier, with whom Theodore F. Glockner, was on

brief for appellees Hartford Life Insurance Companies, Inc. and

Group Long Term Disability Insurance Benefits For Employees of New

England Business Service, Inc.

October 23, 2003
SCHWARZER, Senior District Judge. Janice R. Perry

appeals the district court’s dismissal under Federal Rule of Civil

Procedure 12(b)(6) of her action to recover long-term disability

benefits, statutory penalties, and attorneys’ fees pursuant to the

Employee Retirement Income Security Act of 1974, as amended, 29

U.S.C. §§ 1001-1461 (“ERISA”). Perry applied for but was denied

disability benefits under the Group Long-Term Disability Plan

(“Plan”) maintained by her employer New England Business Service,

Inc. (“NEBS”) and insured by Hartford Life Insurance Companies,

Inc. (“Hartford”). The district court dismissed the complaint

because under the terms of the Plan only active full-time employees

are eligible for benefits and Perry had been on a leave of absence

for six years when she applied. We must decide whether under the

terms of the Plan an employee on leave of absence on account of a

work-related injury ceases to be a participant in the Plan. 

The district court had jurisdiction under 28 U.S.C.

§ 1331 and 29 U.S.C. § 1132(a)(1)(B) and we have jurisdiction

pursuant to 28 U.S.C. § 1291. For the reasons discussed below we

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On review of a motion to dismiss, we accept as true the

factual allegations of the complaint and construe all reasonable

inferences therefrom in favor of Perry. See Beddall v. State St.

Bank & Trust Co., 137 F.3d 12, 16 (1st Cir. 1998).
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Perry alleges that she became a full-time employee of

NEBS on May 20, 1991, and vested under the Plan on September 16,

1991. She worked full time until October 15, 1992, when she became

disabled by a hand injury for which she received workers’

compensation benefits. Perry further alleges that although the

hand injury initially rendered her disabled and unable to perform

her usual duties, what has caused her to be totally and permanently

disabled since October 1992 is her progressively worsening Type 1

Diabetes Mellitus of long duration and associated impairments.

Perry applied for long-term disability benefits under the Plan on

April 10, 1998, about the time when her workers’ compensation

benefits terminated. On March 25, 1999, Hartford denied Perry’s

appeal from its denial of benefits, stating that because “the

injury that caused you to stop working was sustained at work, any

resulting Disabling condition is excluded from coverage under [the

policy].” By letter of April 27, 2001, counsel for NEBS concurred

in Hartford’s decision, stating that “the plan disqualifies from

benefit eligibility all employees disabled due to work-related

injury.”

Perry filed this action on August 30, 2001.

THE TERMS OF THE PLAN

The Plan provides long-term disability benefits to all

“active full-time employees” of NEBS. Sec. I. The Plan states
1The Elimination Period is the period of time an employee must

be totally disabled before benefits become payable. Sec. II.

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that “you will be paid a monthly benefit if . . . you become

Disabled while insured under this plan.” Sec. V.

The Plan defines disability as “any nonoccupational

accidental bodily injury . . . [or] nonoccupational sickness.”

Sec. II.

Under the Plan,

insurance will terminate on the earliest to

occur of the following dates:

. . . 

(5)the date your employment terminates

or your eligibility for this plan

terminates. Your eligibility

terminates on the date you cease to be

an Active Full-time Employee:

. . .

(b)due to temporary layoff, leave

of absence or a general work

stoppage (including a strike or

lockout).

Sec. IV.

The Plan provides for continuation of insurance as

follows:

If you are disabled and you cease to be an

Active Full-time Employee, your insurance will

be continued:

(1) during the Elimination Period1

while you remain totally disabled by

the same disability; and

(2) after the Elimination Period for as

long as you are entitled to benefits

under the Policy.

Sec. IV.
2Perry’s argument that the district court, in considering the

terms of the Plan, improperly treated the motion to dismiss as one

of summary judgment is not well-taken. Where, as here, “a

complaint’s factual allegations are expressly linked to—and

admittedly dependent upon—a document (the authenticity of which is

not challenged), that document effectively merges into the

pleadings and the trial court can review it in deciding a motion to

dismiss under Rule 12(b)(6).” Beddall, 137 F.3d at 17.

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DISCUSSION

We review the district court’s dismissal de novo. See

Beddall, 137 F.3d at 16.

An action for benefits under a plan established under

ERISA may be brought only by a “participant,” defined as an

employee who is or may become eligible to receive benefits under

the plan. 29 U.S.C. §§ 1132(a)(1), 1002(7). Perry contends that

the district court erred in holding that she was ineligible for

benefits under the Plan.2 She argues that while she was disabled

and on a medical leave of absence for the injury to her hand, her

status was protected as an active employee and therefore she was

entitled to receive disability benefits.

Perry’s argument flies in the face of the unambiguous

terms of the Plan. Under Section IV an employee’s “eligibility

terminates on the date [she] cease[s] to be an Active Full-Time

Employee . . . due to . . . leave of absence.” Section IV provides

that insurance will be continued if the employee is disabled and

ceases to be an active full-time employee. But disability under

the Plan is limited to nonoccupational injury or sickness. Thus,
3That NEBS may for other purposes have continued to regard

Perry as an employee cannot alter the clear and unambiguous terms

of the Plan. See Sprague v. General Motors Corp.,133 F.3d 388, 404

(6th Cir. 1998) (en banc); Miller v. Coastal Corp.,978 F.2d 622,

624 (10th Cir. 1992) (stating that “an employee benefit plan cannot

be modified . . . by informal communications.”)

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insurance will continue only if the employee is disabled due to a

nonoccupational injury or sickness. Because, as alleged in the

complaint, Perry worked full time until she became disabled by a

work-related hand injury, her disability leave was the result of an

occupational injury and thus had the effect of terminating her

insurance and rendering her ineligible for continuation of

coverage. Her application for benefits submitted in 1998 upon

termination of her workers’ compensation benefits was therefore

properly rejected. 

“Where, as here, the words of an insurance policy are

plain, we will ‘refrain from conjuring up ambiguities’ and likewise

‘abjure unnecessary mental gymnastics which give the terms of the

policy a forced or distorted construction.’” Burnham v. Guardian

Life Ins. Co., 873 F.2d 486, 490-91 (1st Cir. 1989) (quoting

Taylor v. Aetna Cas. & Surety Co., 867 F.2d 705, 706 (1st Cir.

1989)). Giving the straightforward language in the Plan its

natural meaning, see id. at 489, we conclude that the district

court did not err in holding that Perry was not a participant and

therefore failed to state a claim against Hartford or NEBS.3 
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Our conclusion that Perry ceased to be a Plan participant

makes it unnecessary to address Perry’s claim for breach of duty of

disclosure and attorneys’ fees.

CONCLUSION

For the reasons stated, we affirm the judgment of the

district court.

AFFIRMED.