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DIAZ v. PRUDENTIAL INSURANCE COMAPNY OF AMERICA

May 12, 2004.

HUGO DIAZ, Plaintiff, V. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant


The opinion of the court was delivered by: CHARLES NORGLE, District Judge

OPINION AND ORDER

The Parties have filed cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, Defendant's Motion for Summary Judgment is GRANTED; Plaintiffs Motion for Summary Judgment is DENIED.

I. BACKGROUND

  Plaintiff Hugo Diaz worked as a computer programmer analyst for Bank One in Chicago, Illinois. As a benefit of Diaz's employment with Bank One, he was covered under a long-term disability policy ("LTD Plan") underwritten by Defendant Prudential Insurance Company of America ("Prudential"). Generally, the LTD Plan provides disability benefits to Bank One employees who are determined unable to perform the essential duties of their regular occupations due to injury or illness. A. Relevant Medical Facts

  In February of 2000, Diaz began experiencing pain in his lower back. Initially, he underwent two epidural steroid injections, both of which provided no significant improvement of his pain. As Diaz continued to perform his duties with Bank One, he received three additional lumbar epidural steroid injections with fluoroscopy*fn1 on November 8, 2000, November 22, 2000, and June 13, 2001. These injections provided some relief of Diaz's pain; however, he continued to require pain medication after each treatment.

  In January of 2002, Diaz ceased working and elected to have surgery on his lower back. Specifically, Diaz opted to undergo a lumbar fusion procedure which consisted of L5-S1 posterior lateral fusion with instrumentation and iliac crest bone grafting. The surgery was recommended by Howard An, M.D. ("Dr. An"), Diaz's treating physician, after discovering an annular tear at L5-S1. Dr. An performed the surgery on February 4, 2002.

  Following the surgery, Diaz experienced varying levels of pain throughout his recovery. At Diaz's February 22, 2002 post-operative examination, Diaz reported no significant leg pain and ambulated well. Additionally, his physical exam showed no neurologic deficit in the bilateral lower extremities, and his x-rays showed satisfactory alignment with all hardware appearing to be in place. Notwithstanding these observations, Dr. An noted that Diaz continued to have significant back pain following surgery despite the use of Durgesic patches and Norco. for pain control. Dr. An also noted that pre-operatively, Diaz was taking 80 mg of OxyContin*fn2 three or four times a day.

  On March 22, 2002, Dr. An noted that Diaz was much improved following surgery; however, his medications now included Zanaflex, Norco, Kadian and Neurontin. Dr. An also noted that Diaz had good strength in his bilateral extremities and that his neurologic status remained intact. Diaz's x-rays showed good alignment with no indication of hardware movement. Dr. An concluded that Diaz was making satisfactory progress and planned to re-examine Diaz in two months with the possibility of considering his return to work.

  On March 29, 2002, Diaz reported significant increased left groin pain, increased right leg pain and sleeplessness. Diaz also reported the sensation of hardware movement in his back. After Diaz requested a change in pain medication, Dr. An discontinued Diaz's use of Norco. and prescribed Lortab and Ambien for pain control. Diaz was then advised to call Dr. An's office on April 1, 2002 to provide an update on his condition.

  On April 1, 2002, Diaz reported increased right leg numbness, difficulty ambulating and increased anxiety. He also requested anxiety medication, for which Dr. An prescribed Valium. Furthermore, in response to Diaz's complaints of hardware movement, Dr. An reviewed x-rays taken on April 5, 2002. He concluded that the fusion was consolidating and the hardware was in place. Dr. An also expressed concern about the amount of pain medication Diaz required and encouraged him to begin physical therapy. On April 23, 2002, Diaz telephoned Dr. An's office to relate that he really did not have a large component of pain at that time. Aside from occasional achiness and soreness at the surgical site, he felt much better and did not regret having the surgery. Diaz also related that he continued to suffer from anxiety, depression and fear over losing his job, indicating that he decided to see a psychologist to help with these symptoms.

  On April 30, 2002, Bank One requested that Dr. An complete a Health Care Provider Medical Certification ("Certification") with respect to Diaz's condition. The Certification requested clinical information to support Diaz's extended time off work. Dr. An completed the Certification on May 1, 2002 and returned it to Bank One. In the Certification, Dr. An stated that he would evaluate Diaz on May 24, 2002 to determine whether he can return to work.

  Also on April 30, 2002, Diaz had his initial evaluation for physical therapy at Athletico. Sports Medicine and Physical Therapy Center ("Athletico").*fn3 Physical Therapist Melissa Kidder reported that Diaz had bilateral lower extremity pain, back pain, decreased range of motion to the lower extremities, and weakness secondary to discogenic back pain. Kidder also noted that Diaz was unable to walk more than two blocks without pain. On a pain scale of 1/10, Diaz rated his back pain at a level of 4-5, denying any feelings of numbness or tingling at that time.

  In May and June of 2002, Diaz saw Dr. An on two occasions. During both visits, Dr. An noted that Diaz's pain had improved from his preoperative status. Additionally, Dr. An observed that Diaz had residual leg pain going down the lower extremities with associated back pain on the left side. Dr. An also noted pain at the bone graft site, which he expected to improve with time. Further, Dr. An stated that Diaz's neurologic examination remained normal. After Diaz's June 4, 2002 visit, Dr. An concluded that Diaz will need an additional one month of physical therapy and is then expected to return to work with restrictions. Dr. An also advised Diaz to decrease his use of narcotics at that time.

  On June 18, 2002, Sandeep Amin, M.D. ("Dr. Amin") of the Rush Pain Center ("Pain Center") provided an update on Diaz's progress to Dr. An. Dr. Amin noted that Diaz's pain was constant, occasionally sharp and awakens him from his sleep. Additionally, Dr. Amin opined that Diaz was chronically dependant on his opiate medication and in need of detoxification. Dr. Amin further opined ...


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