Lijoi v. Continental Cas. Co.

• Decision Date: 13 February 2006
• Docket Number: No. 01-CV-4536 (ILG).,01-CV-4536 (ILG).
• Citation: 414 F.Supp.2d 228
• Parties: Francis E. LIJOI, Plaintiff, v. CONTINENTAL CASUALTY CO. and Forbes, Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

414 F.Supp.2d 228

Francis E. LIJOI, Plaintiff, v. CONTINENTAL CASUALTY CO. and Forbes, Inc., Defendants.

No. 01-CV-4536 (ILG).

United States District Court, E.D. New York.

February 13, 2006.

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Evan S. Schwartz, William J. O'Mahony, Michail Z. Hack, Quadrino & Schwartz, Garden City, NY, for the Plaintiff.

Patricia Marie McIntire, McElroy, Deutsch, Mulvaney & Carpenter, LLP, Morristown, NJ, for the Defendant.

MEMORANDUM AND ORDER

GLASSER, District Judge.

INTRODUCTION

Since September 1996, Plaintiff Francis E. Lijoi has been totally disabled. He has continually provided evidence of his increasingly disabled condition to an insurance company that, after awarding him total disability benefits from December 1996 until August 1998, arbitrarily reversed its determination. For more than seven years, Continental has ignored the mounting evidence of Lijoi's disability, choosing to litigate its denial of his benefits rather than accept the plain fact that he is unable to work.

Francis E. Lijoi, ("Plaintiff" or "Lijoi") brings this action against Continental Casualty Company ("Continental" or "defendant") and Forbes, Inc. ("Forbes") to enforce provisions of his long term disability insurance plan under the Employee Retirement and Income Security Act ("ERISA"), 29 U.S.C. § 1132(a)(1)(B) and § 1132(a)(2). He claims that his long-term disability benefits were improperly terminated on the basis of a determination made by Continental, which acted without an express delegation of authority over his claim, and that Forbes breached its fiduciary duty by allowing Continental, a conflicted insurance company, to make the claims decision.¹ Continental has moved for "judgment on the administrative record," fashioning its motion as arising pursuant to Fed. R. Civ. Proc. 12(c). Plaintiff has cross-moved for judgment under Fed. R. Civ. Proc. 56. For the reasons stated below, defendant's motion is converted to a motion for summary judgment and denied, and plaintiffs cross-motion for summary judgment is granted.

BACKGROUND

I. Lijoi's Medical Condition

Lijoi was Director of Technical Services for Forbes, Inc. through September 1996. In that capacity, he managed technical aspects of all information technology projects for Forbes, particularly regarding networking file/print services and new technologies. (Aff in Supp. of Continental Casualty Co.'s Mot. for J. on the Admin. R., Ex. B, claims file ("CLM"), 248-49). He worked an average of forty to fifty hours per week in an office environment. (Id.).

Beginning in August 1996, Lijoi began to experience unexplained episodes of dizziness and fatigue and was evaluated by Dr. Samuel Cho and Dr. Peter Pasternack, neurologists at NYU Medical Center. (CLM 343, 352). On September 19, 1996, Lijoi lost consciousness while driving, and was in a serious automobile accident when his car went out of control and impacted a metal pillar. (CLM 312). He was brought by ambulance to Coney Island Hospital where he was admitted overnight and treated for syncope, possible herniated lumbar, cervical disc with radiculopathy and post-concussion syndrome. (CLM 301). On September 20, 1996, Lijoi signed out of Coney Island Hospital against medical advice to see his neurologist, Dr. Pasternack, at NYU (Id.). On September 22, 1996, Lijoi was admitted to NYU Medical Center where he underwent numerous diagnostic tests. (CLM 380-402). The tests did not result in a clear diagnosis, but on October 2, 1996, Lijoi underwent surgery in which his cardiologist, Dr. Gupta, implanted a pacemaker to counteract the effects of the irregularly slow heartbeat believed to have contributed to his fainting episodes and accident. (CLM 390). After being released from NYU, Lijoi still complained of severe symptoms, including sleeplessness; back, hip, neck, groin, and chest pain; headaches; numbness in arms, legs, hands and feet; an inability to walk, depression, dizziness, nervousness, forgetfulness, and impairments of concentration and comprehension. (CLM 355).

From November 1996, and for almost the next two years, plaintiffs primary treating physician was a neurologist, Dr. Head, who treated him for what Dr. Head believed to be lingering neurological effects of the September 1996 car accident.² In his initial consultation, on November 19, 1996, Dr. Head diagnosed cervical and lumbar strain, possible cervical and lumbar radiculopathy, possible herniated cervical and lumbar discs, post-traumatic headaches, and post-traumatic anxiety and depression. (CLM 259). On Dr. Head's recommendation, a CAT scan was conducted on December 27, which indicated a herniated disc at C4-5. (CLM 267).

Lijoi began physical therapy on January 7, 1997, where he continued to complain of pain, anxiety, and depression. (CLM 262). He was "restricted in the treatment ... due to the level of his subjective complaints," and treatment goals were established to reduce pain and increase flexibility. (CLM 263-264).

No later than June 23, 1997, and continuing throughout his treatment of Lijoi, Dr. Head repeatedly certified that Lijoi was totally disabled, unable to return to work, and that it was undetermined when he would be able to return. (CLM 38, 63, 111, 159, 198, 209, 219, 235). On November 11, 1997, Dr. Head stated that he believed Lijoi would be unable to return to work in the future, that there were no job accommodation that would allow him to return to work, and that it was undetermined when Lijoi would reach his maximum medical improvement. (CLM 209). In the November 11, 1997 report, Dr. Head indicated that Lijoi was receiving "conservative treatment," including pain medication and swimming therapy, and that because of the disc herniation, persistent complaints of pain, and the side effects from his medications, Lijoi was unable to resume working. (Id.). By January 10, 1998, with Lijoi reporting a worsening of the previous conditions and additional discoloration, pain, and numbness in arms and hands, Dr. Head believed that Lijoi was not a suitable candidate for rehabilitation services because "his numerous severe medical problems preclude work activity." (CLM 198). Lijoi continued to attend physical therapy. (Id.).

On July 21, 1998, Lijoi was seen by Continental's neurologist, Dr. Neophytides, in an effort by Continental to confirm the findings and diagnoses made by Dr. Head. (CLM 65-69). Dr. Neophytides observed that Lijoi claimed a number of symptoms, including "[n]eck pains, radiating to both upper extremities; numbness in the upper extremities ... pain in the lumbar spine ... spasms ... headaches; depression; poor sleep; occasional wetting of the bed; loss of sexual drive ... [and] generalized weakness, which causes him to collapse intermittently and to fall." (CLM 65). After conducting a neurological evaluation, however, Dr. Neophytides found "no definite evidence of any neurological dysfunction to account for [Lijoi's] symptoms." (CLM 67). He expressed skepticism as to plaintiffs assertions of disability, finding that Lijoi's "active range of motion in all four limbs was limited, but in a pattern consistent with the patient's refusal to allow for range of motion movements, due to claimed pain," and concluded that Lijoi "did not have any significant degree of neurological disability. He should be able to work in his prior capacity." (Id.).

In 1998, Lijoi was first tested for and diagnosed with Hepatitis C and Chronic Fatigue Syndrome. (CLM 42-48, 55-56, 58). On September 2, 1998, a biopsy was performed under the direction of Dr. Terzuoli, a gastroenterology specialist and internal medicine practitioner at Staten Island Hospital, and the results showed Lijoi had chronic active Hepatitis, grade 2, with bridging fibrosis, stage 3. (CLM 56). Dr. Terzuoli diagnosed him on September 16, 1998, and he received follow up care from Dr. Jane M. Geders, a faculty practitioner associated with the New York Methodist Hospital. (CLM 42-45). Additionally, a related diagnosis made in October, 1998 demonstrated that Lijoi had progressive Dupuytren's disease of his hands which required surgery. (CLM 40). On October 21, Dr. Head, reviewing these diagnoses, reiterated his fmding of disability and noted the "worsening of the Dupuytren's Contractures," and that the Hepatitis diagnosis "further complicate[s] the clinical picture." (CLM 38).

II. Continental's Termination of Long Term Disability Benefits

On December 20, 1996, Lijoi applied for long term disability benefits from Continental. (CLM 435). His claim arose under the "Own Occupation" category of the policy, which defines "disability":

"Disability" means that during the Elimination Period and the following 36 months, Injury or Sickness causes physical or mental impairment to such a degree of severity that You are:

1. continuously unable to perform the Material and Substantial Duties of Your Regular Occupation; and

2. not working for wages in any occupation for which You are or become qualified by education, training or experience.

(Aff, in Supp. of Continental Casualty Co.'s Mot. for J. on the Admin. R., Ex. B, Forbes Long Term Disability Plan, ("Plan"), at 5 (emphasized words defined elsewhere by the Plan)).

As proof of the disability, the Plan specifies a number of items which must be supplied at the claimant's expense, stating that "[f]ailure to do so may delay, suspend or terminate ... benefits." (Plan 11). The Plan requires the claimant to provide, inter alia:

4. Proof that You are receiving Appropriate and Regular Care for Your condition from a Doctor ... whose specialty or expertise is the most appropriate for Your disabling condition(s) according to

Generally Accepted Medical Practice

5. Objective medical findings which support Your Disability. Objective medical findings include but are not limited to tests, procedures, or clinical examinations standardly accepted in the practice of medicine, for Your disabling condition(s)

6. The extent of...