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ZAMECNIK v. ABBCO

GARY ZAMECNIK Plaintiff,
v.
ABBCO, INC. ERISA PLAN, CNA INSURANCE Co., & ABBCO, Inc. Defendant.



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.

I. FACTS

  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 Plaintiff received.

  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 ...


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