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PETERSON v. CONTINENTAL CAS. CO.

October 23, 2000

JOSEPH J. PETERSON, PLAINTIFF,
V.
CONTINENTAL CASUALTY COMPANY, DEFENDANT.



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.

Summary

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.

I.

BACKGROUND

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 March 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.

A. The Plans

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 added).

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.

(Id.) (emphasis added).

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

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.

Drankoski stated:

[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 ...


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