Tesch v. Prudential Ins. Co. of America
| Citation | 829 F.Supp.2d 483 |
| Decision Date | 16 November 2011 |
| Docket Number | Civil Action No. 09–1697. |
| Parties | Wanda Halphen TESCH v. The PRUDENTIAL INSURANCE CO. OF AMERICA. |
| Court | U.S. District Court — Western District of Louisiana |
OPINION TEXT STARTS HERE
Stanford B. Gauthier, II, Nichole LaBorde Romero, Law Office of Stan Gauthier II, Lafayette, LA, for Wanda Halphen Tesch.
Gregory J. Walsh, Corinne A. Morrison, Chaffe McCall et al., New Orleans, LA, for The Prudential Insurance Co. of America.
MEMORANDUM RULING
Before the Court are cross motions for summary judgment filed by plaintiff Wanda Halphen Tesch, [Rec. Doc. 23] and defendant, The Prudential Insurance Company of America (“Prudential”), [Rec. Doc. 24], plaintiff's Supplemental Memorandum in support of her Motion for Summary Judgment [Rec. Doc. 39] and Prudential's Supplemental Memorandum in support of its Motion for Summary Judgment [Rec. Doc. 41]. For the following reasons, the motion for summary judgment filed by plaintiff will be granted and the motion for summary judgment filed by defendant will be denied.
Plaintiff, Wanda Halphen Tesch, was employed by Bank One as an assistant manager and was a participant in a disability plan sponsored by Bank One and insured by Prudential under contract number G–56249 (the “Plan”). Administrative Record, DO725, DO781. Prudential served as the Plan Administrator and was vested with the discretion to review claims, interpret the Plan and make decisions regarding eligibility.1 The pertinent provisions of the Plan provided that “Total Disability” exists when the following conditions are met:
(1) Due to Sickness or accidental injury, both of these are true:
(a) You are not able to perform, for wage or profit, the material and substantial duties of your occupation.
(b) After the Initial Duration of a period of Total Disability, you are not able to perform for wage or profit the material and substantial duties of any job for which you are reasonably fitted by your education, training or experience. The Initial Duration is shown in the Schedule of Benefits.
(2) You are not working at any job for wage or profit.
(3) You are under the regular care of a Doctor.
Thus, under section (1)(b), in order to continue receiving Long Term Disability (LTD) benefits under the Plan, an employee must be unable to perform the material and substantial duties of “any job” for which he or she is qualified based on “education, training or experience.”
Plaintiff injured her neck and back in March 1998 when she slipped and fell down her stairs. D0486–489. Plaintiff was examined by Dr. John Cobb, an orthopaedic surgeon, on March 25, 1998 with complaints of tenseness and muscle spasms between her shoulders, aching in her lower back and right hip and leg. Id. She indicated that on a scale of 1–10, her pain was a “6” with a “10” at night. Id. Dr. Cobb ordered an MRI of her lumber spine and prescribed physical therapy, Lortab and Daypro. Id. Based on plaintiff's continued symptoms and marked collapse at the level of L4–5, Dr. Cobb recommended fixation and fusion of the L4–5. D0475–485. Dr. Cobb performed a fusion on plaintiff's L4–5 disc in August, 1998. Id. On September 11, 1998 plaintiff stopped working due to neck and lumbar pain. D0682
On a June 2, 1999 visit to Dr. Cobb, plaintiff complained of significant pain in her neck and right shoulder as well as her tailbone. D0463. Plaintiff was evaluated by Dr. John E. Nyboer at the NeuroMedical Center on June 24, 1999, for head and neck pain radiating into her right arm and fingers. D0458–461. On September 13, 1999, Dr. Nyboer ordered an MRI of plaintiff's cervical spine and an x-ray of her lumbar spine. The x-ray revealed that the fusion plate at her L4–5 level had become displaced. D0042–43. The cervical MRI revealed a posterior disc protrusion causing cord effacement and narrowing of the left lateral recess and neural foramen at the C5–6 level and a posterior disc protrusion causing mild stenosis at the C6–7 level. D0045–46. In an August 9, 1999 evaluation by Dr. Cobb, plaintiff continued to complain of lower back, neck and shoulder pain. D0452. Dr. Cobb indicated that surgical intervention may be indicated. Id.
On January 5, 2000, plaintiff sought a second opinion from Dr. Jorge Isaza, an orthopaedic surgeon. D0022. Dr. Isaza ordered an x-ray and discogram be performed. The x-ray confirmed a failed fusion and the discography revealed “a strongly positive L4–5 disk space,” which Dr. Isaza interpreted as confirming her L4–5 pain, as well as degenerative disc disease. D0033, 0035. On April 27, 2000, Dr. Isaza performed plaintiff's second posterior lateral fusion and she continued under his care.
Plaintiff continued to complain of back pain and severe neck and shoulder pain, which began to affect her left arm. D0199–2. Dr. Isaza diagnosed C5–6 and C6–7 degenerative disc disease and prescribed Lortab and Skelaxinepidural steroid injections of her cervical spine. Id. He ordered an MRI on March 28, 2001, which indicated C5–6 and C6–7 herniation. Id. An MRI of plaintiff's cervical and spine was repeated on December 4, 2002. D00215. The radiology report indicated progressive disc protrusions/herniations at C5–6 and C6–7 with cord compression at both levels. Id.
In his progress notes dated January 24, 2003, Dr. Isaza indicated that plaintiff continued to complain of neck pain radiating into both arms. D00216. He stated that she “explained that loss of coordination and pain makes her miserable” and prescribed at home cervical traction. Id. Dr. Isaza completed an Attending Physician's Statement for Continuing Disability on July 22, 2003, indicating that plaintiff remained totally disabled from any duties. Dr. Isaza performed a cervical fusion on August 22, 2003. D0100. In October and December 2003, plaintiff continually complained of severe cervical and upper back pain after being punched in the face and neck by her brother. 2 D0097–101. Dr. Isaza referred her for a rheumatology consultation with Dr. Gary Roberts to address her diffuse pain complaints. Id. Throughout 2004, plaintiff continued to complain of pain in her neck, right upper extremity, upper back, lower back and right lower extremity and Dr. Isaza continued to treat her conservatively and prescribe pain medication. D0190–195.
In an office visit with Dr. Isaza on March 17, 2005, plaintiff complained of pain in her mid-back with continued neck pain. D0088–089. Dr. Isaza scheduled an MRI of her thoracic spine. Id. The MRI showed degenerative changes at T9–10 and T10–11. Id. On July 27, 2005, plaintiff was examined by Dr. Isaza complaining of severe low back pain radiating into both lower extremities and bilateral upper extremity pain. D008 7. Dr. Isaza ordered a discogram of her lumbar spine. Id. In her November 14, 2005 office visit, plaintiff reported continued neck and back pain, primarily in her lower back with pain radiating into the left leg. Dr. Isaza noted that two years after her successful fusion surgery, plaintiff began having progressive pain and presently was having difficulty sleeping and had to stop walking her usual two miles a day due to her symptoms. D0086. He noted that the discogram was positive at L5–S1 with an annular tear posteriorly. Id. Dr. Isaza stated, “Ms. Tesch is miserable” because of her pain. Id. On December 21, 2005, based on her positive discogram, Dr. Isaza recommended an artificial disc replacement. D0085.
In his evaluation dated March 10, 2006, Dr. Isaza indicated plaintiff's complaints of low and mid-back pain. D0084. Noting that plaintiff wanted to wait as long as possible before any further surgery, the plan was for plaintiff to continue to be active. Id. On March 13, 2006 Dr. Isaza referred Tesch to Dr. Gray W. Barrow, a Physical Medicine and Rehabilitation specialist, for pain management. D0083. In plaintiff's initial office visit on June 13, 2006, Dr. Barrow diagnosed plaintiff with chronic cervical pain and chronic lumbar pain with radiculopathy. D. 284–285. He prescribed Oxycontin, Norco and Soma. Id. For the remainder of 2006, plaintiff indicated she continued to have severe low back pain as well as neck and right shoulder pain but that she wanted to wait on a surgical option and continue her pain medications. D0080–084.
On January 18, 2007, Dr. Isaza performed an artificial disc replacement of plaintiff's L5–S 1. D007 9. In March 2007, Dr. Isaza recommended that plaintiff begin some stretching and walking-starting off very slowly “as it would be easy for her to overdo things.” D007 8. Plaintiff continued to have unchanged back pain throughout 2007 and Dr. Isaza's records indicate that she “seems sad.” In May, 2007, Dr. Isaza ordered a myelogram and CT of her lumbar spine. D0076. The myelogram showed a central bulge at L3–4 with a central disc herniation at L4–5. Id. Dr. Isaza continued her physical therapy, home TENS unit and medications. D0064. On September 6, 2007, noting that plaintiff's low back pain radiated into her lower extremities to her feet, Dr. Barrow ordered an MRI of plaintiff's thoracic spine. D0283. The MRI revealed “diffuse degenerative disc disease most pronounced at T10–11” Id. On October 3, 2007, Dr. Barrow performed a steroid injection into plaintiff's T 11–12 interspace. Id.
On March 14, 2008 Dr. Isaza, ordered an MRI of plaintiff's cervical spine which revealed a disc bulge at C7–T1. D0050. Plaintiff's follow-up examinations indicated no improvement in her neck, upper and lower back and leg pain and also reported pain shooting from the mid-back into the anterior chest. D0050–52. Dr. Isaza indicated that he wanted her to remain active and to continue with conservative care. Id. On May 21, 2008, noting that plaintiff continued to complain of low back pain radiating into her lower extremities, Dr. Barrow injected her L5 and stated that he would consider injecting her S1 in the future. D0281.
Plaintiff received long-term disability benefits from...
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