The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
This is an action under the Employee Retirement Income Security
Act ("ERISA"), for payment of disability insurance benefits.
Plaintiff Gary Zamecnik ("Zamecnik" or "Plaintiff") claims that
Defendant Continental Casualty Company ("Continental") wrongfully
denied benefits to him under ERISA, 29 U.S.C. § 1132(a)(1)(B).
The parties have filed cross-motions for summary judgment. For
the reasons set forth in this opinion, the Plaintiff's Motion for
Summary Judgment is denied and the Defendant's Motion for Summary
Judgment is granted.
Plaintiff Zamecnik was an employee of Defendant Abbco, Inc. He
began working for Abbco in April 1969. Plaintiff assumed the
position of sales manager at Abbco in 1975. He occupied that
position until his employment with Defendant ceased on September
6, 1999. According to Abbco, the sales manager position requires
one hour of standing, two hours of walking, and six hours of
sitting in an average nine hour day. (A.R. 281) The position does
not involve lifting or carrying, nor does it require use of
extreme postures such as stooping, climbing, kneeling, crouching, bending, twisting, or reaching. (A.R. 282)
A. THE BASIC TERMS OF THE DISABILITY INSURANCE PLAN
As an active, full-time employee of Abbco, Plaintiff was a
participant in Abbco's longterm disability insurance plan ("the
Plan"). Abbco established the Plan with Defendant Continental
Casualty Company in 1988. Under the Plan, an employee experiences
"total disability" when the employee is:
(1) continuously unable to perform the substantial
and material duties of his regular occupation;
(2) under the regular care of a licensed physician
other than himself; and
(3) not gainfully employed in any occupation for
which he is or becomes qualified by education,
training or experience.
(A.R. 12.) An employee seeking to make a claim under the Plan
must provide to Continental "written notice of claim . . . within
30 days after the loss begins or as soon as reasonably possible."
(A.R. 16.) Once Continental receives "written notice of claim",
the Plan requires that it furnish claim forms within 15 days. If
Continental does not provide these claim forms, "the claimant
will be considered to have met the requirements for written proof
of loss" if the notice of claim "describes the occurrence, extent
and nature of the loss." (Id.) The Plan further requires the
employee to provide "written proof of loss . . within 90 days
after the end of a period for which [Continental is] liable."
(Id.) If it is not possible to give the proof within 90 days,
"the claim is not affected if the proof is given as soon as
reasonably possible. Unless the Insured Employee is legally
incapacitated, written proof must be given within 1 year of the
time it is otherwise due." (Id.)
B. PLAINTIFF'S CLAIM UNDER THE PLAN Plaintiff ceased actively working for Abbco on September 7,
1999. On or about January 10, 2001, Plaintiff first notified
Continental of his claim for benefits under the Plan, claiming
disability beginning September 7, 1999.*fn1 Plaintiff's
claim form seeks coverage for total disability as a result of
"rheumatoid arthritis joint surgery accident motor veh.
6-3-00." After receiving medical documentation in support of
Plaintiff's claim, Continental notified Plaintiff on May 4, 2001
that his claim had been rejected. Plaintiff, acting through his
attorney, filed a formal appeal of the claim on August 2, 2001,
that included additional supporting documentation. On September
24, 2001, Continental informed Plaintiff that his appeal was
denied. On November 20, 2001, Plaintiff submitted further
documentation supporting his claimed disability. Continental
considered this documentation and reiterated the denial of the
claim on January 2, 2002. This is the final claim denial that
The Administrative Record reveals that on or about January 23,
2002, Lisa Welsh in the Illinois Department of Insurance
contacted Continental to query whether Plaintiff's records had
been reviewed by an independent medical examiner. (A.R. 043.) On
January 25, 2002, Ms. Welsh sent Continental a letter indicating
that the department was "unable to close [their] file" because
"the information . . . does not confirm that Mr. Zamecnik was not
disabled from September 8, 1999 to December 1, 1999." (A.R. 033.)
Thereafter, Continental submitted the record to an independent
medical analysis performed by Dr. Eugene Truchelut, M.D. In a
report dated February 12, 2002, Dr. Truchelut concluded that "the
medical records as submitted do not clearly indicate a continuous
functional impairment subsequent to 9/6/99." (A.R. 029.) Continental forwarded this report to the Illinois Department of
Insurance on February 14, 2002. (A.R. 024) There is no indication
in the record that Continental forwarded this report to Plaintiff
prior to the onset of litigation.
C. PLAINTIFF'S DOCUMENTATION OF DISABILITY
Plaintiff was receiving treatment from three doctors: Dr. James
Nuzzo, a podiatrist; Dr. Thomas Palella, a rheumatic disease
specialist; and Dr. John Sage, the primary treating physician
after Plaintiff's motorcycle accident in June 2000.
1. Plaintiff's Records from Dr. Nuzzo
Plaintiff's treatment from Dr. Nuzzo began in April 1996, when
Dr. Nuzzo saw him for heel pain. (A.R. 293) Dr. Nuzzo recommended
Plaintiff see a rheumatologist at that time, which led to
Plaintiff's relationship with Dr. Thomas Palella (which is
discussed below). Dr. Nuzzo did not see Plaintiff again until
September 20, 1999. Dr. Nuzzo's notes from that visit indicate
that Plaintiff was experiencing rheumatoid arthritis that was
"very painful" and causing "excruciating pain." (A.R. 293)
Plaintiff was injected with Marcaine that day to decrease the
pain. (A.R. 293) On September 30, 1999, Plaintiff saw Dr. Nuzzo
again and was "much ↑ [improved]. To correct after Thanksgiving."
(A.R. 293) On December 1, 1999, Dr. Nuzzo performed a
bunionectomy on Plaintiff's right big toe. Dr. Nuzzo indicated
that Plaintiff was disabled as a result of that condition, but
Plaintiff's recovery was swift. As of January 14, 2000, Plaintiff
was "healed without complication" from the surgery. (A.R. 294) On
February 14, 2000, Dr. Nuzzo was pleased with Plaintiff's
recovery and was set to release him to work on March 1, 2000.
(A.R. 294) By April 4, 2000, Plaintiff was asymptomatic, happy,
and pain-free. (A.R. 294) Dr. Nuzzo later sent a letter
indicating that his conclusions about Plaintiff on April 4, 2000
were limited to his area of treatment, i.e. Plaintiff's feet. (A.R. 125)
Plaintiff saw Dr. Nuzzo again on July 24, 2000 after Plaintiff
banged his toe against a dresser in early July. (A.R. 295) Dr.
Nuzzo administered an injunction of Marcaine to ease the pain
(A.R. 295) On August 7, 2000, Plaintiff felt almost 100 percent
better since the injection. (A.R. 295) Plaintiff returned to Dr.
Nuzzo on September 7, 2000 complaining of "lesser metatarsalgia."
(A.R. 295) Dr. Nuzzo suggested Plaintiff use orthotics. On
October 12, 2000, Dr. Nuzzo ...