Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-8-2008

Russell Johnson III v. Lucent Tech Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1671




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Recommended Citation
"Russell Johnson III v. Lucent Tech Inc" (2008). 2008 Decisions. Paper 885.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/885


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CLD-224                                                  NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                       No. 07-1671
                                       ___________

                               RUSSELL H. JOHNSON, III,
                                                      Appellant

                                             v.

                            LUCENT TECHNOLOGIES INC.1
                        ____________________________________

                      On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                             (E.D. Pa. Civil No. 89-cv-02089)
                       District Judge: Honorable Berle M. Schiller
                       ____________________________________

               Submitted for Possible Dismissal Due to a Jurisdictional Defect
      or Pursuant to 28 U.S.C. § 1915(e)(2)(B) or for Summary Action Pursuant to Third
                               Circuit LAR 27.4 and I.O.P. 10.6
                                        June 12, 2008

                 Before: AMBRO, FUENTES and JORDAN, Circuit Judges

                                (Opinion filed: July 8, 2008)

                                        _________

                                         OPINION
                                        _________



  1
   Appellant’s motion to amend the caption is granted to the extent he requests that the
caption reflect that Lucent Technologies Inc. is the successor in interest to AT&T Bell
Laboratories Inc. in this action. In all other respects, the motion to amend is denied.
PER CURIAM

       Russell Johnson, proceeding pro se, appeals from an order of the United States

District Court for the Eastern District of Pennsylvania granting Lucent Technologies

Inc.’s petition to terminate his long-term disability benefits. We will affirm the order of

the District Court.

       In August 1989, after a bench trial, the District Court ordered AT&T Bell

Technologies to make long-term disability payments to Johnson. The 1989 order directed

Johnson to place himself under the care of one of three specified psychiatrists and furnish

proof on a monthly basis to AT&T and the administrator of AT&T’s long-term disability

benefit plan that he was engaged in a treatment program. The 1989 order further

provided that AT&T or the plan administrator could petition the District Court at any time

to terminate Johnson’s benefits if Johnson failed to comply with the order or if there was

a medical determination that Johnson was no longer disabled.

       After the District Court issued its 1989 order, Johnson apparently did not receive

disability payments. In September 1990, the District Court held a post-trial hearing and

ordered AT&T to take all steps necessary so that Johnson would receive benefits. The

District Court also amended its 1989 order to allow Johnson to be treated by the

psychiatrist of his choice, and required the psychiatrist to notify AT&T on a quarterly

basis that Johnson was undergoing psychiatric treatment and was participating in a

meaningful way. The 1990 order provided that, if such notice was not provided, AT&T

                                              2
had the right to petition the District Court to determine that disability payments were not

payable under the terms of the AT&T benefit plan.

       In June 2006, Lucent Technologies, the successor in interest to AT&T, filed a

petition asking the District Court to terminate Johnson’s long-term disability benefits

based on his failure to provide evidence that he continues to be eligible for benefits.

Lucent established that Johnson complied with the requirement that he provide notices

regarding his treatment until 2002. Since 2003, however, the plan administrator has

written Johnson eleven times seeking to obtain updated information about his disability.

Johnson did not provide any medical documentation in response. The plan administrator

also contacted the office of the psychiatrist who was treating Johnson in 1990, and was

told that Johnson had not been to the office since 2002. The applicable benefit plan

requires Johnson to be under a physician’s care and to follow the recommended course of

treatment. The plan also provides that Johnson may be required to submit proof of his

disability from time to time.

       In response, Johnson stated that he had been seeing a new doctor since 2003, but

that he had been having difficulty paying for treatment because the doctor was not an in-

network provider under Lucent’s health plan. Johnson stated that the doctor had treated

him free of charge. Johnson provided a letter from the doctor dated May 8, 2006, stating

that Johnson had been under his care since August 2003.

       Following a telephone conference, in September 2006, the District Court ordered



                                              3
Lucent to send Johnson the documents he and his psychiatrist needed to complete in order

to comply with the District Court’s 1989 and 1990 orders. The District Court directed

Lucent to provide detailed instructions for Johnson to follow, and required Johnson to

complete and return the paperwork by November 6, 2006. On December 20, 2006, the

District Court entered an order granting Lucent’s petition to terminate Johnson’s long-

term disability benefits, noting that Johnson had failed to comply with the September

2006 order directing him to complete the documents provided by Lucent. This appeal

followed.2

       Johnson states in his notice of appeal that in July 2006 his new doctor, Dr. Shamie,

sent a form to the plan administrator “which completed [his] file.” Johnson further states

that, after the District Court issued its September 2006 order, he saw two doctors, both of

whom refused to complete the plan administrator’s forms. According to Johnson, the first

doctor, who was a network provider under Lucent’s health plan, told Johnson that he felt

uncomfortable completing the forms because Johnson had filed a lawsuit against Lucent

in California related to his health plan. The doctor suggested that Johnson return to Dr.

Shamie. Johnson states that he did so, but Dr. Shamie also refused to complete the forms,

noting that he had filled out forms for Johnson in July 2006. Johnson also states that he

has been trying to get AT&T (or Lucent) to authorize payment for Dr. Shamie’s services.



  2
   Although Johnson filed his notice of appeal beyond the 30-day period prescribed by
Federal Rule of Appellate Procedure 4(a), the District Court granted Johnson’s motion for
an extension of time to file his notice of appeal, and we have jurisdiction over this appeal.

                                              4
Johnson argues that his case should be remanded so that the District Court can consider

these facts.

       Johnson has not shown that a remand is warranted. Although Johnson argues that

he provided forms to the plan administrator in July 2006, Johnson had the opportunity to

present this information to the District Court in the telephone conference preceding the

District Court’s September 2006 order. The fact that Dr. Shamie refused to complete the

forms as required by the District Court suggests that Johnson is unable to satisfy his

obligations under the District Court’s 1990 order and the benefit plan to show that he is

undergoing psychiatric treatment and participating in a meaningful way or that he remains

disabled.3

       We note that Johnson did not seek any relief in District Court before the November

6, 2006, deadline to complete the forms, or before the District Court entered its order

terminating benefits on December 20, 2006. We also note that Johnson had numerous

opportunities to satisfy his obligations under the District Court’s 1990 order and the

benefit plan. The record reflects that the plan administrator requested medical evidence




  3
    Dr. Shamie’s May 2006 letter, which appears to have been prepared for purposes
unrelated to this litigation, states that Johnson has been under Dr. Shamie’s care since
August 2003 and recommends that Johnson continue bi-weekly supportive
psychotherapy. The letter does not establish that Johnson was participating in psychiatric
treatment in a meaningful way, as required by the District Court’s 1990 order, nor does it
address whether Johnson remains disabled. To the extent the District Court concluded
that this letter, which is addressed to the University of Southern California, did not satisfy
Johnson’s obligations under the benefit plan, we agree with that determination.

                                              5
of Johnson’s continued disability and/or provided forms for his completion by letters

dated May 1, 2003, September 23, 2003, July 20, 2004, January 7, 2005, February 7,

2005, March 7, 2005, April 15, 2005, February 8, 2006, February 21, 2006, and March 7,

2006. Johnson did not provide medical documentation in response to these requests.

         Accordingly, because this appeal does not raise a substantial question, we will

affirm the order of the District Court.4




  4
      Johnson’s motion to expedite the appeal is denied.

                                               6