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January 13, 2003


The opinion of the court was delivered by: John S. Martin, Jr., United States District Judge


Plaintiff Louis R. Napoli, a bond trader, has not worked since November 29, 1996, when he suffered a heart attack at work and had emergency by-pass surgery. After a period in which he received payments from the Defendant under a disability insurance contract, Defendant notified Plaintiff that they were terminating his benefits because it had determined that he was not permanently disabled. Plaintiff then commenced this action under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., seeking to compel Defendant to continue paying him under his disability contract. Defendant now moves for summary judgment on the ground that the administrative record supports its determination that Plaintiff is not permanently disabled. Plaintiff has cross-moved to supplement the record and for a jury trial. Plaintiff's motion for a jury trial is denied, but its motion to supplement the record is granted in part. Having reviewed the record as supplemented, the Defendant's motion for summary judgment is granted.

In an action such as this, to review the denial of benefits under ERISA, the Court is to conduct a nonjury de novo review of the plan administrator's determination. DeFelice v. American Int'l Life Assurance Co. of New York, 112 F.3d 61, 64 (2d Cir. 1997). Plaintiff is not entitled to a jury trial. Id. at 64; Tischmann v. ITT/Sheraton Corp., 145 F.3d 561, 568 (2d Cir.), cert. denied, 119 S.Ct. 406 (1998); Sullivan v. LTV Aerospace & Defense Co., 82 F.3d 1251, 1258 (2d Cir. 1996).

Where the administrator is also the party who will pay the benefits, the court has the discretion to admit additional evidence that was not part of the record before the administrator. DeFelice, supra, 112 F.3d at 65. In this case, Plaintiff seeks to conduct discovery and to have a trial at which he can offer additional evidence.

Having examined the record, the Court, in the exercise of its discretion, denies the application for discovery and for a trial for the taking of additional testimony. However, the Court will consider the affidavit of Dr. Frelich for the additional information it contains concerning Plaintiff's condition.


The insurance policy at issue here provides:

Disability and disabled mean that because of injury or sickness you cannot perform each of the material duties of your regular occupation.
There is no question that Plaintiff has the physical ability to perform each of the material duties of his regular occupation. The issue is what degree of risk of future damage to one's health will render one totally disabled to perform his or her regular occupation. Plaintiff contends that he is disabled because there is some risk that, if he returns to work, the stress of his work may cause another serious heart attack. While not denying that Plaintiff may face some risk of future heart problems, if he returns to work, Defendant contends that the risk is so insubstantial that it does not preclude Plaintiff from returning to work.

In the Affidavit submitted by Plaintiff, Dr. Frelich states: "Mr. Napoli's Coronary Artery Disease is not curable, is a permanent condition and the avoidance of excessive stress from his occupation as a government bond broker could prevent a further heart attack." The affidavit also states: "the extreme stress of Mr. Napoli's occupation could progress his Coronary Artery Disease and could again exacerbate his heart condition, causing another heart attack."

For its part, Defendant notes that after Dr. Frelich was contacted by a physician employed by the Defendant in August, 1997, while the claim was under review, he signed as accurate a memo memorializing his conversation, which stated:

You believe that Mr. Napoli should not engage in any activity that produces stress — be it work or arguing with his wife. For that reason, you and he decided that he should not return to work. Medically, he could tolerate this, and if he wanted to return to work, you would not suggest otherwise.
Defendant also relies on an opinion it obtained from Dr. Richard Nesto, a cardiologist who was an Associate Professor of Medicine at Harvard Medical School. Dr. Nesto's report noted, among other things, that Mr. Napoli had performed well on his stress test and concluded that "he is in an excellent prognostic category and in usual circumstances would be able to return to full employment . . . ." Dr. Nesto was of the opinion that it was unlikely that stress on the job contributed to the development of Plaintiff's atherosclerosis. Dr. Nesto stated that in his opinion:
Although the relative risk of a "triggered" cardiac event is higher when exposed to stress, the absolute risk of an acute cardiac event in [sic] a daily basis is so small it is not quantifiable.
The question before the court comes down to whether a party should be considered totally disabled if there is even the slightest risk that the stress of his work might cause another heart attack. The principles to be applied in answering this question were set forth in Lasser v. Reliance Standard Life Ins. Co., 146 F. Supp.2d 619, 628 (D.N.J. 2001):
It is a basic tenet of insurance law that an insured is disabled when the activity in question would aggravate a serious condition affecting the insured's health. See Stark v. Weinberqer, 497 F.2d 1092, 1098-99 (7th Cir. 1974); Oppenheim v. Finch, 495 F.2d 396, 398 (4th Cir. 1974); Stillwell v. Sullivan, 1992 WL 401971, *6 (D.Kan. Dec. 30, 1992). As noted in the Applemans' treatise, "The insured is considered to be . . . disabled where it is impossible for him to work without hazarding his health or risking his life." 1C Appleman, Insurance Law & Practice § 651 at 241 (1981) In fact, this proposition is sufficiently well-settled that in many jurisdictions it travels under the name of the "common care and prudence rule." E.L. Kellett, Annotation, Continuation of Work as Affecting Finding of Total or Permanent Disability within Insurance Coverage, 24 A.L.R.3d 8, § 3(a) (1969); see, e.g., McGowan v. Orleans Furniture Inc., 586 So.2d 163, 166 (Miss. 1991); John Hancock Mut. Life Ins. Co. v. Poss, 154 Ga. App. 272, 267 S.E.2d 891, 880 (1980).
Insureds with heart conditions or who have experienced heart attacks provide an obvious context for the application of these principles. E.L. Kellett, Annotation, Heart or Vascular Condition as Constituting Total or Permanent Disability within Insurance Coverage, 21 A.L.R.3d 1383, § 3 (1968). Where medical prudence requires a cessation of work activity, the insured is disabled . . .
However, the courts attempting to determine whether someone who has had a serious heart attack and by-pass surgery is totally disabled have reached different results. Compare Pompe v. Cont'l Casualty Co., 119 F. Supp.2d 1004 (W.D. Mo. 2000); Buffaloe v. Reliance Standard Life Ins. Co., No. 99 Civ. 710, 2000 WL 33951195 (E.D.N.C. 2000) with Rosenthal v. First Unum Life Ins. Co., No. 00 Civ. 3204, 2002 WL 975627 (S.D.N.Y. 2002); Mihok v. Magnetek, Inc., No. 10 CV 2446, 2002 WL 1162843 (C.D. Cal. 2002). These apparently inconsistent results may be attributable to the different factual situations rather than a disagreement as to the governing legal principles.

Obviously, every case must be judged on its particular facts. While this is a close case, it is reasonable to conclude that the Plaintiff's heart condition did not render him ...

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