The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S
CROSS-MOTION FOR SUMMARY JUDGMENT.
Peterson filed this action against Continental Casualty Company ("CNA")
seeking benefits under short- and long-term disability benefit plans
established and maintained by Peterson's former employer, CBS
Broadcasting, Inc., under the Employee Retirement Income Security Act of
1974 ("ERISA"), as amended, 29 U.S.C. § 1182(a)(1)(B), (a)(8), and
(e)(1). In a prior opinion, Peterson v. Continental Cas. Co.,
77 F. Supp.2d 420 (S.D.N.Y. 1999), this Court denied summary judgment to
both parties and remanded the claims back to Claim Administrator for a
proper determination under the terms of the Plans. The Claim Administrator
again denied Plaintiff's claims.
Defendant moves for summary judgment affirming the denial and
dismissing the case. Plaintiff seeks summary judgment that he is entitled
to the claimed benefits. For the reasons that follow, Defendant's motion
is denied and Plaintiff's motion is granted.
Plaintiff Joseph Peterson was employed by CBS for over 37 years,
beginning in the mail room and working his way up to the position of
"Venue Production Manager." In September 1997, while in Nagano, Japan in
preparation for CBS' coverage of the 1998 Winter Olympics, Peterson began
suffering acute pain. He returned to the United States for treatment, and
subsequently underwent two surgeries to treat bilateral carpal tunnel
syndrome in both his hands. His treating physicians also diagnosed injury
to his back. From September 1997 to March 1998, CBS reassigned Peterson
to a desk job in New York City, which did not demand any strenuous
physical activity. In mid-May 1998, Peterson concluded that he would not
be able to resume his old job as a venue production manager and applied
for disability benefits under the terms of CBS Short- and Long-term
Disability Plans. He was granted short-term disability benefits from
15 to August 10, 1998, while Defendant reviewed his claim.
CNA denied the claim on the ground that Plaintiff was not disabled
within the meaning of the Plans. Plaintiff's internal appeals of the
denial of benefits failed; this lawsuit followed.
An employee is entitled to coverage under the Long-Term Plan ("LTD")
upon providing proof of a continual total loss of ability to carry out his
job. In the Group Long-Term Disability Insurance Plan, "Total Disability"
is defined as follows:
"Total Disability" means that, during the Elimination
Period and Your Occupation Period [defined in the
schedule as 24 months] shown in the Schedule of
Benefits, You, because of Injury or Sickness, are:
(2) continuously unable to perform the substantial and
material duties of Your regular occupation;
(3) under the regular care of a licensed physician
other than yourself; and
(4) not gainfully employed in any occupation for which
You are or become qualified by education, training
or experience. (Weber Aff. Ex. A, R. 21) (emphasis
The policy further provides that:
After the Monthly Benefit has been payable for Your
Occupation Period, "Total Disability" means that,
because of Injury or Sickness, You are:
A. continuously unable to engage in any occupation
for which You are or become qualified by
education, training or experience; and
B. under the regular care of a licensed physician
other than Yourself.
The Short-Term Disability Plan ("STD") employs sightly different
language. Under the STD, a "total disability" is defined to mean that the
worker is "continuously unable to perform the substantial and material
duties of his or her own occupation," and "not gainfully employed in any
occupation for which the Insured Employee is or becomes qualified, by
education, training, or experience." (R. 4) (emphasis added).
In its earlier opinion, familiarity with which is presumed, this Court
denied Plaintiff's motion for summary judgment and Defendant's
cross-motion for summary judgment on the ground that the Plan
Administrator had failed to consider what Plaintiff's "regular" or "own"
occupation was in determining whether he was disabled within the meaning
of the two plans. See Peterson v. Continental Cas. Co., 77 F. Supp.2d 420
(S.D.N.Y. 1999). In denying the motions, I noted that CNA had improperly
measured Peterson's disability against the duties he was performing at
the temporary desk job — not against his "regular occupation" as a
Venue Production Manager. I therefore remanded Peterson's claim under the
LTD Plan to the Claim Administrator to:
determine whether Peterson's medical condition
— evaluated against the duties of his "regular
occupation," rather than his temporary accommodation
— entitled him to benefits under the Long-Term
Plan. Because the Plan sets forth a tripartite test,
the Administrator should also evaluate whether
Peterson was disabled from being "gainfully employed
in any occupation for which [he was or became]
qualified by education, training or experience."
Id. at 429. I further remanded Peterson's claim under the STD Plan for a
"proper claim determination, as to both Peterson's alleged short-term
inability to perform his usual duties and whether he could have performed
in any occupation for which he was qualified `by education, training or
experience' during the weeks prior to August 10, 1998." Id. at 430.
B. The Administrative Record
Following the remand order, CNA requested and received from CBS a
Physical Demands Analysis ("PDA"), signed by John Toohey, Associate
Administration for the 1998 Olympics, which described the following work
activities: (1) 10 to 14 hour days, with a 6 to 7 day workweek; (2) use
of computer, telephone, and calculator (although no breakdown of the
amount of time so occupied); (3) standing and walking for 2-hour blocks
of time; (4) one-handed "control," motor vehicle operation, and twisting
of the head for 33% to 66% of working time; (5) a range of other
activities (climbing, stooping, crouching, bending, twisting, reaching
and finger dexterity) from anywhere from 0% to 33% of the time; (6)
working in conditions of extreme cold and wet, with the presence of
moving equipment slick floors, and while handling materials. (RR.
43-44.)*fn1 Where the PDA asked the question "Are other jobs available
in your company that require similar ability but requires [sic] less
physical effort?" Toohey responded "No." (RR. 43.) (emphasis in
Peterson also submitted to CNA additional evidence supporting his
disability claim, including, inter alia, medical records, an updated
expert opinion from a neurologist, a resume of Peterson's prior work
history, newspaper clippings and job recommendation, and an e-mail
statement from Darcy Antonellis, who served as CBS' Vice President of
Operations for the 1998 Winter Olympics. (Wieber ltr. to Sauerhoff, Jan.
27, 2000 (RR.90-96); Wieber Ltr. to Sauerhoff, Feb. 2, 2000 (RR.50-52)).
This evidence supplemented his earlier submissions concerning his job
duties, which included letters from Sharon Drankoski (a CBS venue
production manager), David Graham (a CBS technical manager) and an earlier
letter from Antonellis.
[A] remote production manager is responsible for
providing the non-technical physical plant and
supplies necessary to permit a television broadcast
from a remote location. Typically, this involves both
the preparatory work — such as renting equipment
and furniture, purchasing supplies, and hiring
subcontractors and caterers, etc. — and work at
the venue itself — such as setting up temporary
office sites and trailers, moving and setting up
furniture, supervising runners and subcontractors,
arranging for camera towers, providing supplies like
water, paper, tape racks, and other
office-type-supplies. Although a production manager at
a major venue will frequently have runners available
to handle many of the necessary physical activities,
it is expected and understood that the production
manager will do whatever the situation — due to
urgency or lack of staffing — demands. On
location, such physical activity can occupy up to 30%
of the production manager's time. . . .
(RR.28) (emphasis added). Examples of some of the things Drankoski
performed at venues included scaring away rats, lugging a mattress up a
flight of stairs and shoveling snow.
Graham stated that he had worked alongside Peterson at the Olympic
assignment., as well as at several prior remote broadcast locations,
dating back to Peterson's work at the ...