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Walsh v. Long Term Disability Coverage for all Employees Located in United States of DeVRY

March 9, 2009


The opinion of the court was delivered by: James F. Holderman, Chief Judge


In this lawsuit, plaintiff Kimberly A. Walsh ("Walsh") alleges that her long-term disability benefits were wrongfully terminated by Defendants*fn1 and that, pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(B), she is entitled to recover benefits owed her under the terms of the Plan. Currently pending before the court are the parties' cross motions for summary judgment. For the reasons set forth below, Walsh's Motion for Summary Judgment (Dkt. No. 89-4) is denied in its entirety and Defendants' Motion for Summary Judgment (Dkt. No. 82) is granted in its entirety.


In January 2000, Walsh began working for DeVry, Inc. in the position of admissions representative. (Pl.'s 56.1(a)(3) Stmt. ¶ 4.) As an employee of DeVry, Inc., Walsh is a Plan participant who is entitled to long-term disability ("LTD") benefits in accordance with the terms of the Plan.*fn2 (Id. ¶ 1.)

In July 2000, Walsh developed sudden excruciating pain in her lower back with radiation to the lower limbs. (Id. ¶ 7.) Walsh had surgery for a ruptured disc in November 2000. (Id. ¶ 8.) After experiencing increasing lower back pain and pain down her right leg during the first six months of 2002, Walsh was diagnosed with a recurrent L4-L5 disc herniation on the right side, for which she underwent a second surgery on July 22, 2002. (Id. ¶¶ 9, 11-12.) Following the second surgery, Walsh continued to experience pain in her lower back and also experienced pain down her left leg. (Id. ¶ 15.) Walsh's ongoing pain was treated from August 2002 to December 2002 through a combination of cortisone injections, prescription pain medications, fentanyl patches, and a transforaminal epidural steroid injection. (Id. ¶¶ 15, 19-21.) During this time period, Walsh was treated by her orthopedic surgeon, Dr. Mark K. Chang, and was also receiving treatment at two different pain management clinics. (Id. ¶¶ 15, 17.)

Walsh submitted a claim for LTD benefits to Prudential on January 13, 2003. (Def.'s 56.1(b)(3)(B) Resp. ¶ 54.) Under the terms of the Plan, a Plan participant is considered "disabled" for purposes of receiving LTD benefits if:

. . . Prudential determines that:

* You are unable to perform the material and substantial duties of your regular occupation due to your sickness or injury; and

* You have a 20% or more loss in your indexed monthly earnings due to that sickness or injury.

After 24 months of payments, you are disabled when Prudential determines that due to the same sickness or injury, you are unable to perform the duties of any gainful occupation for which you are reasonably fitted by education, training or experience. (Def.'s 56.1(a)(3) Stmt. ¶ 8) (emphasis in original).

On February 20, 2003, Prudential Disability Claim Manager Alicia M. Diaz ("Diaz") reviewed Walsh's claim with Dr. Patrick Foye, a physical medicine and rehabilitation physician associated with the University of Medicine & Dentistry of New Jersey. (Pl.'s 56.1(a)(3) Stmt. ¶ 61.) Diaz's computerized notes from February 20, 2003 state that "the medical information does not preclude clmt. from performing M&S [material and substantial] duties of reg occ [regular occupation] as an admissions rep." (Id. ¶ 63.) The next day, Diaz reviewed Walsh's claim with Dr. Albert Kowalski, an occupational medicine physician and a Prudential Vice President and Medical Director. (Id. ¶ 64.) Diaz's notes from February 21, 2003 state that "As per review, DCM to approve claim thru 5/03 and flu [follow up] with EE [Walsh] for end of epidurals, flu MRI, neurological deficients and physical therapy summary and examination reports." (Id.) Diaz then sent a letter to Walsh dated February 21, 2003, informing Walsh that her LTD claim had been approved with a monthly benefit of $3,381.80 effective January 18, 2003. (Id. ¶ 65.)

Walsh continued to undergo diagnostic testing for her back pain in early 2003. (Id. ¶ 22.) At a March 1, 2003 consultation with neurosurgeon Dr. Russ P. Nockels, Walsh reported that she had experienced worsened back, right and left leg pain after the July 2002 surgery. (Id. ¶ 23.) Walsh underwent a third lower back surgery on June 16, 2003. (Id. ¶ 26.) At the time Walsh was discharged following her third surgery, Dr. Nockels restricted Walsh's activity to prohibit bending, twisting, lifting more than five pounds of weight, or sitting at ninety degrees for greater than thirty minutes three times per day. (Id. ¶ 27.) Dr. Nockels also required Walsh to lift only from a squatting position and to avoid extreme bending activities. (Id.) In July 2003, Walsh received continued treatment for pain management from Dr. Vikram Patel and Dr. Satheesh Muppavarapu. (Id. ¶¶ 29-30.) From August 4, 2003 to October 2, 2003, Walsh was treated at the Marionjoy Rehabilitation Hospital pain management program by Dr. James Gruft. (Id. ¶¶ 33, 35.) Walsh had a lumbar spine MRI performed on November 8, 2003 by Dr. Gunnar Anderson, and she returned to Dr. Gruft for treatment on November 25, 2003. (Id. ¶¶ 36-37; Def.'s 56.1(a)(3) Stmt. ¶ 24.) Walsh underwent further testing with Dr. Gruft in December 2003. (Pl.'s 56.1(a)(3) Stmt. ¶ 40.) From January 2004 through December 2004 Walsh received outpatient physical therapy at Marionjoy, as prescribed by Dr. Gruft. (Id. ¶¶ 41, 50.) On Dr. Gruft's referral, Walsh also consulted with two different specialists in the area of implantable pain control devices in March and June 2004-Dr. Ira Goodman and Dr. Eugene Lipov. (Id. ¶¶ 42, 45.) Walsh continued to see Dr. Gruft throughout 2004, and Dr. Gruft has served as Walsh's treating physician from that time to the present day. (Id. ¶¶ 47, 51, 76.) On March 5, 2004, Walsh participated in an Independent Medical Examination performed by Dr. David Rosania. (Def.'s 56.1(a)(3) Stmt. ¶¶ 19-22.)

On July 13, 2004, Prudential Disability Consultant Aneesha Fain ("Fain") sent a letter to Walsh explaining that her initial period of LTD benefits (24 months) was scheduled to end on January 17, 2005, and that Prudential would be conducting an evaluation to determine Walsh's eligibility for continuing LTD benefits beyond that date. (Id. ¶ 13.)

As part of Prudential's evaluation of Walsh's eligibility for ongoing LTD benefits, Fain referred Walsh's file to Dr. Foye on January 5, 2005 for his opinion on whether Walsh was disabled from performing sedentary work. (Pl.'s 56.1(a)(3) Stmt. ¶ 68.) On February 20, 2005, Dr. Foye faxed his written report to Fain containing his conclusion that Walsh "is indeed capable of performing work at a sedentary-light duty level, on a full time basis (eight hours per day), with relatively minimal accommodations noted above (ergonomic chair, and perhaps and sit-stand workstation). Further it should be specified that she should not be required to lift items from the floor level, nor perform any repetitive lifting/carrying of more than 10-20 pounds, and nor should she operate any heavy machinery while taking narcotic analgesics." (Id. ¶ 70.)

Before receiving Dr. Foye's report, Fain had sent a follow-up letter to Walsh on February 16, 2005, stating:

We have completed our evaluation of your claim based on the definition of disability as stated above. We have determined that you meet the requirements for eligibility and benefits under this definition of disability. Your LTD benefits have been authorized through February 25, 2008 while we continue our evaluation. Benefits will continue provided that you remain totally disabled under the terms of the DeVry, Inc., Group Ltd Policy. (Def.'s 56.1(b)(3)(B) Resp. ¶ 69; see also Admin. Record at PRU000678.)

On February 24, 2005, after receiving Dr. Foye's report, Fain sent Walsh a letter informing Walsh that her LTD benefits would be terminated effective March 1, ...

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