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PIETRO v. PRUDENTIAL INSURANCE COMPANY OF AMERICA

March 25, 2004.

FRANK DIPIETRO, Plaintiff
v.
PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant



The opinion of the court was delivered by: JAMES MORAN, Senior District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Frank DiPietro, a former employee of Washington Group International, Inc. (Washington), brought this action for recovery of short-and long-term disability insurance benefits against the plan administrator, defendant Prudential Insurance Company of America (Prudential), pursuant to Section 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(a)(1)(B). Now before the court are plaintiff's motion for summary judgment, which is granted, and defendant's cross-motion for summary judgment, which is denied.

BACKGROUND

  Plaintiff started working as a computer-aided design operator for Washington on July 7, 2000. As a Washington employee he received disability insurance pursuant to a plan underwritten by Prudential. Prudential pays benefits for short-term disability after seven consecutive days of disability and for long-term disability after 26 weeks of continuous disability. Under the terms of the plan a claimant is disabled when Prudential determines that

  you are unable to perform the material and substantial duties of your regular occupation due to your sickness or injury; and Page 2 you have a 20% or more loss in your indexed monthly earnings due to that sickness or injury.

 Plaintiff stopped working at Washington on March 5, 2002, and filed a claim for short-term disability benefits nine days later on March 14. DiPietro's claim was denied, as were his two subsequent appeals.

  In 1952, at age five, plaintiff was diagnosed with polio. The disease affected his left leg and right arm, and even after recovery his left leg still experienced residual paralysis and weakness. Forty-eight years later, on August 22, 2000, plaintiff joined a post-polio clinic database. On a survey provided by the database, plaintiff stated that he was diagnosed with post-polio syndrome in "about 1997." He identified his symptoms as new weaknesses in muscles that were both affected and unaffected by polio, pain in his muscles and joints, fatigue out of proportion with his activity level, and an inability to perform activities that were previously possible. On a followup questionnaire for the database, dated August 8, 2001, plaintiff reported a change in his symptoms since his last visit. He wrote that he was tired and exhausted, had trouble sleeping and suffered front headaches.

  During 2001, plaintiff sought treatment from his physician, Dr. Mario Prete, for persistent headaches and some nausea and vomiting. At an appointment on February 12, 2001, Dr. Prete noted tenderness by the cervical muscles in the back of plaintiff's head, but did not record any other abnormalities. The doctor prescribed medication for plaintiffs headaches and counseled him as to gastroesophageal reflux disease. On September 13, 2001, Dr. Prete assessed plaintiff as having "Persistent neck pain . . . Headaches . . . Possible sleep apnea." On Dr. Prete's recommendation, Dr. Glen Glista, a neurologist, examined plaintiff on November 14, 2001, due to his recurrent headaches. Dr. Glista noted the weakness in Page 3 plaintiffs left leg caused by polio. The doctor prescribed medication for plaintiffs headaches, but did not find any indication of a serious neurological problem.

  Dr. Prete saw plaintiff again on December 20, 2001. In his notes, Dr. Prete discussed plaintiffs history with polio. Plaintiff told Dr. Prete that he thought polio was affecting him and requested a referral to a polio specialist. Dr. Prete again observed tenderness at the base of plaintiffs skull and assessed that he was probably suffering from tension headaches and arthritis of the neck.

  On January 24, 2002, Dr. James Sliwa, a post-polio syndrome specialist, examined plaintiff at the Rehabilitation Institute of Chicago. In his report, Dr. Sliwa related plaintiffs medical and social history. He wrote that plaintiff worked for a computer drafting company but would be unemployed as of March because his company was closing. The report listed plaintiffs three primary medical complaints: headaches, neck pain, and fatigue. The doctor found that plaintiff had "symptoms compatible with postpolio syndrome" and recommended that he participate in a sleep study and physical therapy. Plaintiff underwent a sleep study that revealed he did not suffer from sleep apnea, ruling it out as the cause of his fatigue. On February 7, 2002, during a followup visit, Dr. Sliwa recorded plaintiffs "complaints of fatigue, decreasing functional status, limited . . . ambulation because of fatigue," and diagnosed him with post-polio syndrome. In a letter dated February 18, 2002, Dr. Sliwa informed Prudential of plaintiffs diagnosis and the possibility that he would not be able to work full-time during his treatment.

  Plaintiff did not return to work at Washington after March 4, 2002. Three days later plaintiff returned to see Dr. Sliwa. The doctor's treatment notes from that appointment state plaintiffs "symptoms have been getting worse over the past few years, particularly the fatigue Page 4 to the point where he would require naps during the day and wasn't able to do as much activity as he was in the past, having difficulty concentrating." Dr. Sliwa's physical examination revealed that plaintiffs strength findings were consistent with the previous month's findings. The doctor's assessment concluded that plaintiff was "significantly limited by his fatigue." He also mentioned that he had discussed with plaintiff the "possibility of therapy in the future. . . ." Following this appointment, Dr. Sliwa submitted a second letter to Prudential on March 8, 2002, expressing his opinion that plaintiff was not capable of full-time employment due to his worsening symptoms of post-polio syndrome.

  Plaintiff filed an application for short-term disability on March 14, 2002. On the attending physician statement submitted in support of the application, Dr. James Sliwa diagnosed plaintiff with post-polio syndrome. Dr. Sliwa stated that plaintiff's lower extremity was weak and that he suffered from fatigue, "which interferes with all activity that requires concentration." In response to the question, "What Job Category best describes the claimant's functional abilities," Dr. Sliwa marked the box, "Sedentary." He wrote in the margin next to his response, "Still a fatigue problem." Along with this statement, plaintiff submitted Dr. Sliwa's examination notes and letters. Prudential denied plaintiffs claim on April 4, 2002. Plaintiff appealed the decision a week later, submitting additional records from Dr. Sliwa and plaintiffs own written statement. In May, plaintiff faxed Prudential information about post-polio syndrome and letters from family and friends discussing their observations of his condition.

  Plaintiff began physical therapy at the Rehabilitation Institute of Chicago on April 8, 2002, and continued through May 1, 2002. Plaintiff did not believe that therapy was helping his symptoms, but Dr. Sliwa's tests revealed slight improvements in the strength of his hips. Page 5 In his notes from May 2, 2002, Dr. Sliwa wrote that he would recommend to plaintiffs primary care physician that plaintiff return to therapy. He also suggested that plaintiff see a psychiatrist or seek out some other form of treatment for depression.

  On August 22, 2002, Prudential denied plaintiffs first appeal. Plaintiff filed a second appeal on December 2, 2002, providing Prudential with newly acquired information. After a fall that required treatment at a hospital, plaintiff was re-examined by Dr. Sliwa on September 25, 2002. The doctor reported plaintiffs recurrent symptoms and observed decreased tone in his legs and "changes" in his neck that were revealed by X-ray. Dr. Sliwa recommended that plaintiff wear a soft cervical collar to support his head and visit a psychiatrist. The doctor also wrote an order for plaintiff to return to physical therapy, which he did on October 22, ...


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