Kenneth M. KANSKY ken kansky loves to sue companies!!!! new york

ken kansky is someone you do not want to do any business with as he just LOVES to sue anyone he can.  he is a liar and a waste!

* (caselaw.findlaw.com/)  * (caselaw.findlaw.com/court/us-1st-circuit)  *    KANSKY v. COCA COLA BOTTLING COMPANY OF NEW ENGLAND


KANSKY v. COCA  COLA BOTTLING COMPANY OF NEW ENGLAND

United States Court of Appeals,First Circuit. Kenneth M.  KANSKY, Plaintiff, Appellant, v. COCA-COLA BOTTLING COMPANY OF NEW   ENGLAND;  Coca-Cola Enterprises Inc.;  Coca-Cola Enterprises Long-Term Disability Plan, a/k/a Core Ltd Benefits;  Aetna Life Insurance  Company, Defendants, Appellees.
No. 06-2042.
-- June 29,  2007
Before TORRUELLA, LIPEZ, and HOWARD, Circuit  Judges. Bernard A.  Kansky, with whom Kansky & Associates was on brief, for   appellant. Stephen D. Rosenberg, with whom Eric L. Brodie and The  McCormack  Firm, LLC, were on brief, for appellees.  Kenneth  Kansky appeals the district court's entry of summary judgment  against  him in his lawsuit, filed under the Employee Retirement  Income Security
Act of  1974 (“ERISA”), 29 U.S.C. §§ 1001-1461,  challenging a plan administrator's  decision to deny him long-term  disability benefits.   We affirm._1_  
(caselaw.findlaw.com/us-1st-circuit/1185801.html#footnote_1)    

I. We recount here the undisputed facts briefly, and subsequently  provide  further detail as needed.   Kansky was diagnosed with  schizoaffective disorder in 1994, and was treated for that condition  continuously by the same physician,  Dr. Vuckovic, beginning in  February 2000, extending through
the entire relevant  period of his  disability. He worked for Coca-Cola Enterprises from April 21,   2003 to July 7, 2003, but did not thereafter return to work, claiming that  he  was totally disabled.   On January 8, 2004, Kansky filed for  benefits under  Coca-Cola's long term disability (“LTD”) plan, which is  administered by Aetna.

2 (caselaw.findlaw.com/us-1st-circuit/1185801.html#footnote_2)    Kansky's initial application for benefits and the supporting medical records  indicated that his disability was caused by his  schizoaffective disorder. After Aetna denied his claim under the  pre-existing condition exclusion clause,  Kansky unsuccessfully  appealed.   He appealed again in August 2004 and argued,  apparently  for the first time, that his disability was caused by chronic  fatigue  syndrome (“CFS”).  In support of this claim, Kansky  submitted a letter from Dr.  David Bell, which indicated that  Kansky's then-current symptoms (in July 2004)  were the result of  CFS. Dr. Bell did not opine that CFS was the cause of  Kansky's  disability in July 2003.   Aetna submitted the entire file,  including  this new letter, to a physician and a psychiatrist, and,  based on their  assessments, denied the claim a third time.

3 (caselaw.findlaw.com/us-1st-circuit/1185801.html#footnote_3) Kansky  responded with a second letter from Dr. Bell, reiterating  the CFS  diagnosis.    In early 2005, Aetna issued a final denial of  the claim. Kansky filed this suit, seeking review of Aetna's denial of  benefits, as well  as sanctions against defendants for an alleged  failure to produce requested  documents.   The district court's  opinion, Kansky v. Coca-Cola Bottling Co., et  al., 2006 WL 1167781  (D.Mass. May 1, 2006), reviews the facts of this case and  evaluates  Kansky's challenge to Aetna's decision with admirable care. The  court  concluded that Aetna's decision “was reasoned and supported by  substantial  evidence.”   This appeal ensued. II. A. Standard of  Review Our review of the district court's entry of summary judgment is de  novo.   Cook v. Liberty Life Assur. Co., 320 F.3d 11, 18 (1st  Cir.2003).   The district  court, following clear First Circuit  precedent, reviewed Aetna's benefits  determinations under an  arbitrary and capricious standard.   See Glista  v. Unum  Life Ins.  Co., 378 F.3d 113, 125-26 (1st Cir.2004);  Doe v.  Travelers Ins.  Co.,  167 F.3d 53, 57 (1st Cir.1999);  Doyle v. Paul Revere  Life  Ins.  Co., 144 F.3d  181, 184 (1st Cir.1998).   However, Kansky argued before the district court that  the standard of review applicable to Aetna's  benefits determination should be de  novo because the insurance  company both determines the benefits owed and pays  any benefits  after the first $35,000 (which the employer pays).   Kansky cited   precedents from other circuits, which apply a less deferential standard  where  such a “structural” conflict of interest exists. See McLeod  v. Hartford Life  & Acc. Ins. Co., 372 F.3d 618, 623 (3d  Cir.2004). The district court  rejected this argument and,  consistent with our current law, applied the  arbitrary and  capricious standard. Since the district court issued its decision in this  case, the appropriate standard of review for ERISA cases involving  structural conflicts of interest  has come into question in this  circuit.   Specifically, in Denmark v. Liberty  Life Assurance Co.,  481 F.3d 16, 19 (1st Cir.2007), two members of this court  expressed  their dissatisfaction with our present standard of review in such   cases, and urged this court to reconsider the standard of review issue in  an en  banc proceeding. We also noted in Denmark that the other circuit courts have  taken a wide range of approaches to the standard  of review question.  Id. at  30-31.   There is presently pending a  petition for rehearing en banc in Denmark.    That petition raises  the standard of review issue in terms comparable to those  used by  Kansky in his appeal here. If we thought any change in the  applicable  standard of review (and we are not intimating in any way  that there will  necessarily be such a change) might affect the  outcome of this appeal, we would  defer a decision on this appeal  until the en banc petition in Denmark was  resolved.   However, even  under the de novo standard of review advocated by  Kansky, Aetna's  benefits determination was amply supported by the evidence.

4 (caselaw.findlaw.com/us-1st-circuit/1185801.html#footnote_4) B. Evidence Supporting the Denial of Benefits  Under Aetna's LTD plan,  an employee is ineligible for benefits if his  disability began  during the first twelve months of employment and was “caused,  or  contributed to, by a ‘pre-existing condition.’ ”   See supra note 1. The  plan  defined “pre-existing conditions” as those for which the employee  received  “diagnosis, treatment or services or took drugs prescribed  or recommended by a  physician” during the three months prior to the  beginning of coverage under the  plan.  Id. Aetna denied Kansky's  claim for LTD benefits because it determined  that his  schizoaffective disorder caused or contributed to his disability in   July 2003, and hence his schizoaffective disorder was a “pre-existing  condition”  under the terms of the plan.   That decision was  consistent with the  overwhelming weight of the evidence in the  administrative record. First, when Kansky initially applied for LTD  benefits in February 2004, his treating physician, Dr. Vuckovic,  attributed his disability to his  schizoaffective disorder.   Dr.  Vuckovic had been continuously treating Kansky  for that condition  for four years and stated in his Attending Physician's  Statement  (which Kansky submitted to Aetna in support of his LTD benefits  application) that the disability that began in July 2003 and continued to  the  present was attributable to that condition.   This record,  offered by Kansky and  created contemporaneously with his application  for benefits, provides strong  evidence that Kansky himself, as well  as his treating physician, attributed his  disability to his schizoaffective disorder. Second, Kansky was hospitalized for a period of  ten days between the onset of  his disability and his application for  LTD benefits.   The discharge summary  from this treatment stated  that his primary diagnosis was atypical  schizophrenia.   The  hospital did not diagnose Kansky with CFS. Third, Aetna sent Kansky's  medical records to two board certified physicians  for their review  and evaluation.   Each of them concluded that his primary  diagnosis,  schizoaffective disorder, was the primary cause of his disability.     Each credited Dr. Vuckovic's opinion, based on his long-term treatment  and  evaluation of Kansky, and found that the records supported Dr.  Vuckovic's  impression of Kansky's medical problems rather than Dr.  Bell's. Kansky argues, however, that his disability was caused exclusively  by his  CFS-an independent diagnosis, unrelated to his history of  schizophrenia, and therefore not classifiable as a pre-existing condition.    In support of his  claim, he points to the two letters from Dr.  Bell. The first letter, from July  2004, stated that Kansky's  then-existing symptoms were “very suggestive of  chronic fatigue  syndrome,” and that CFS “is a more accurate clinical diagnosis  than  his atypical schizophrenia.”   The letter also acknowledged, however,  that  Kansky “would not fulfill the Centers for Disease Control  criteria for chronic  fatigue syndrome as he has a history of  atypical schizophrenia.”   Dr. Bell  recommended no alterations to  Kansky's medications or treatment, and suggested  only that he make  an effort to “establish a very regular sleep time and a  regular time  for arising.” The second letter, dated January 2005, was much shorter and  simply reiterated  the findings stated in the July 2004 letter.   It  stated that Kansky's “current  disability is not due to the  schizoaffective disorder;  it is due to chronic  fatigue syndrome.”    Neither letter purported to provide a diagnosis for  Kansky's  disability as of July 2003;  both stated only that, at the time Dr.   Bell saw him, Kansky's symptoms could be explained by CFS. Therefore, even  if we were to credit Dr. Bell's letters and assume that his diagnosis was  accurate, he simply did not opine that Kansky suffered from CFS at   the time his disability began.   Furthermore, Dr. Bell never offered an  opinion,  one way or the other, as to whether Kansky's well-documented  schizoaffective  disorder contributed to his disability.   By  contrast, every treating physician  who saw Kansky stated that his  medical problems were the result of his  schizoaffective disorder, or  complications arising from that disorder.   The  independent medical  professionals who examined Kansky's records and provided  their  opinions to Aetna agreed with this diagnosis.  On this record, there  is  simply no doubt that Kansky's schizoaffective disorder, for which  he had  received treatment during the three months prior to  commencement of the LTD  plan, either caused or contributed to his  disability.   We find no error in  Aetna's denial of benefits on this  basis. III.

Kansky has raised a number of additional points in his  appeal.   We address them briefly. A. Denial of Motion to Alter or  Amend Judgment In the district court, Kansky filed a motion to alter or  amend the judgment,  on numerous grounds, pursuant to Federal Rule of  Civil Procedure 59(e).  We  review the lower court's denial of the  motion for abuse of discretion.  See  Palmer v. Champion Mortgage,  465 F.3d 24, 30 (1st Cir.2006).  Rule 59(e) motions  are granted only  where the movant shows a manifest error of law or newly  discovered  evidence.  Marie v. Allied Home Mortgage Corp., 402 F.3d 1, 7 n. 2   (1st Cir.2005) (stating that Rule 59(e) motions are generally unlikely  to  succeed because the movant must “clearly establish a manifest error of law”) or  provide newly discovered evidence (quoting  Pomerleau v. W. Springfield Pub.  Sch., 362 F.3d 143, 146 n. 2 (1st  Cir.2004)).

First, Kansky claimed that the district court erred because  it “relied” on  the opinions offered by Aetna's reviewing physicians,  who he claimed were unqualified to provide medical opinions on his  condition.   The district court  found that Aetna's reviewing doctors  were “certainly qualified to
provide their  medical opinions on  whether Kansky's pre-existing schizo-affective disorder  caused or  contributed to his disability.”   On appeal, Kansky only points out   that neither of these doctors' CVs mentions any research specifically  focused on  CFS. The district court did not abuse its
discretion in  ruling that the absence  of CFS research did not render Aetna's reviewing  doctors unqualified to give an  opinion on the causes or contributors  toKansky's disability.

Second, Kansky argued that the court erred in  “conducting its own medical research.”   This claim is unfounded.   The  district court provided a reasonable  explanation for its use of a  single medical article, which was not part of the  Administrative  Record, for background information.   In denying
Kansky's Rule  59(e)  motion, the court explained that it had consulted the article because  it  “played a significant role” in an earlier district court  decision, which Kansky  had urged the court to consider.   The court also  noted that the article  appeared to be “the basis for the comments of  Drs. Bell, Burton, and DeFoy  _5_ (caselaw.findlaw.com/us-1st-circuit/1185801.html#footnote_5)   [in
this case]  to the effect that Kansky cannot be diagnosed [with  CFS] according to the  current research criteria put out by the  Centers for Disease Control.”  Kansky,  2006 WL 1167781, at *9. There  was no abuse of discretion in the court's use of  this article in  such a limited way. 

Finally, Kansky also claimed, in his Rule 59(e)  motion, that the court erred  in reaching an “independent” medical  diagnosis, which he described as  “schizoaffective disorder  ‘contributing to’ his CFS.” In reality, the district  court found  that Kansky's schizoaffective disorder contributed
to his   disability, and made no finding as to whether the schizoaffective  disorder caused or contributed to the CFS or whether CFS contributed  to the disability.    The court did not abuse its discretion with its  insistence that it did not make  any independent medical diagnosis.  

B. Request for Sanctions Kansky claims that the district court erred  in denying his request for  
sanctions against the defendants for an  alleged “failure” to produce certain documents.   The documents in  dispute were produced, although apparently later  than Kansky would  have liked.   He has admitted that he suffered no prejudice  from  this delay.   The district court did not abuse its
discretion in  denying  sanctions.   See, e.g., Sullivan v. Raytheon Co., 262 F.3d 41, 52 (1st  Cir.2001). IV. We do not minimize the hardships  caused by Kansky's medical condition. We
recognize the physical,  emotional, and financial burdens imposed by that condition.   But  the entitlement to long-term disability benefits is controlled  by  contract language and legal standards that we must apply as the law requires.  Having done so, we must affirm the thorough and  carefully
reasoned decision of  the district court. So ordered.  

FOOTNOTES
_1_  (caselaw.findlaw.com/us-1st-circuit/1185801.html#footnote_ref_1).In conjunction  with this appeal, Kansky filed a motion to  substitute the pseudonym “John Doe”  in court records, pleadings, and  decisions. However, he failed to respond to  our January 3, 2007  Show Cause order with an
explanation or reason for his  filing of a  public appendix that encompasses almost the entire lower court   record.   The district court opinion has already been made publicly  available  (apparently without objection), and all filings with this  court have used the  appellant's real name.   Therefore,
at this late  stage in the litigation,  changing appellant's name on all court records is not feasible.   It is simply  too late to impose confidentiality on the materials involved in this case.    Hence the  motion to substitute the pseudonym “John Doe” is denied.

_2_  (caselaw.findlaw.com/us-1st-circuit/1185801.html#footnote_ref_2). To be eligible for  LTD benefits under this plan, an  employee must show that (a) a physician has  diagnosed him or her as  “totally disabled” due to a physical or mental  condition, and (b)  provide proof that (1) this disability occurred while he or  she was  insured and (2) the disability has continued for at least 26 weeks.     Benefits are not available if the disability began “during the  first 12 months  of your most recent period of coverage under this  Plan and [was] caused, or  contributed to, by a ‘pre-existing condition.’ ”   A condition is pre-existing  “if, during the 3 months before the date [the employee] became covered under  this Plan, [the  employee] received diagnosis, treatment or services, or [ ] took  drugs prescribed or recommended by a physician, for that  condition.”Kansky  argues that the
pre-existing condition exclusion  clause ought not apply to him  because he previously worked for  Coca-Cola for nineteen months between 1995 and  1996;  he claims that  our decision in Rucker v. Lee Holding Co., 471 F.3d 6 (1st Cir.2006), allows him to combine those nineteen months of employment with the three months worked in 2003.   If such an aggregation were permitted,  Kansky would have worked for Coca-Cola for longer than twelve months  and the pre-existing condition exclusion clause would not apply. However, the terms of  this LTD plan expressly preclude this sort of  aggregation and our decision in  Rucker, dealing with FMLA benefits,  does nothing to alter or contradict the clear terms of this plan.    Thus, Kansky's prior employment is irrelevant and the pre-existing  condition exclusion clause applies to him.

3_  (caselaw.findlaw.com/us-1st-circuit/1185801.html#footnote_ref_3). Aetna explained  its decision, after providing lengthy  quotations from the reports issued by its  reviewing physicians, as follows:Since the records we have reviewed support that  Mr. Kansky  received treatment and took
drugs for schizoaffective disorder  during  the pre-existing condition exclusionary period, April 1, 2003  through June 30,  2003, and that his other conditions have not been  established to result in a  level of impairment that he would have  been precluded from performing the  material duties of his own  occupation as of January 6, 2004, the denial of his  LTD benefits due  to the pre-existing condition is upheld.

4_ (caselaw.findlaw.com/us-1st-circuit/1185801.html#footnote_ref_4). No circuits apply  a pure de novo review standard in  structural conflict cases.   Of the circuits  that apply a less  deferential standard in such cases, five of them apply a  “sliding  scale” standard:  the level of deference given to the insurance   company's decision is correlated to the severity of the conflict.  See,  e.g.,  Fought v. Unum Life Ins. Co. of Am., 379 F.3d 997, 1004 (10th  Cir.2004);  Pinto  v. Reliance Standard Life Ins. Co., 214 F.3d 377,  379 (3d Cir.2000);  Vega v.  Nat'l Life Ins. Servs., Inc., 188 F.3d  287, 297 (5th Cir.1999)(en banc);  Woo v.  Deluxe Corp., 144 F.3d 1157, 1161-62 & n. 2 (8th Cir.1998);  Doe v. Group  Hosp. & Med.  Servs., 3 F.3d 80, 87 (4th Cir.1993).   This sliding scale  approach  preserves the arbitrary and capricious framework, but applies  greater  scrutiny where the conflict of
interest is greater.   One  circuit applies a  “substantially similar” abuse of discretion  standard.   See Abatie v. Alta  Health & Life Ins. Co., 458 F.3d  955, 967-68 (9th Cir.2006)(en banc).   Only  the Eleventh Circuit  applies a standard similar to the de novo standard;  it  first  evaluates whether
the insurance company's decision was incorrect, and  if  it was, the burden shifts to the claims administrator to  demonstrate that the  decision was not affected by a conflict of  interest.   See HCA Health Servs.,  Inc. v. Employers Health Ins.  Co., 240 F.3d 982, 993-94 (11th Cir.2001).

5_  (caselaw.findlaw.com/us-1st-circuit/1185801.html#footnote_ref_5). Drs. Burton and  DeFoy were Aetna's reviewing physicians,  who examined Kansky's medical records  and opined that his disability  was caused, at least in part, by his  schizoaffective disorder. LIPEZ, Circuit Judge.