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June 30, 2003


The opinion of the court was delivered by: Colleen Mcmahon, District Judge.


Plaintiff William Armstrong brings this action against defendants Liberty Life Assurance Company of Boston ("Liberty"); Liberty Mutual Insurance Company ("Liberty Mutual"); Liberty Mutual Group, Inc.; and Liberty Mutual Insurance Company Group Long Term Disability Income Plan, challenging Liberty's determination that he is no longer eligible for long-term disability benefits.*fn1 Before the Court are the parties' cross-motions for summary judgment.

For the following reasons, the defendants' motion is granted in part and denied in part. Plaintiff's motion is denied.


Liberty Mutual hired Armstrong in 1977, and he eventually worked there as an Executive Sales Representative. [000682].*fn2 In September of 1990, Armstrong began to suffer severe pain in his back and legs after pushing a tree-trunk. [000240; 000264]. He was hospitalized and advised of bedrest. When the pain persisted, he visited Dr. Richard J. Radna, a neurosurgeon. Dr. Radna performed lumbar surgery on Armstrong. Id.

Armstrong's condition improved after his surgery, but he continued to suffer from discomfort in his lumbar area, pain in his left thigh, spasms in his left calf, and achiness of his left foot upon walking. [000240; 000171]. Armstrong visited Dr. L. Stephan Kranzler on May 19, 1992. Dr. Kranzler recommended a course of tests, including an MRI and EMG nerve conduction studies. [000171-000173]. Plaintiff had an MRI on May 28, 1992, which found some scarring and a "small, focal, leftsided L4-5 herniation partially obliterating the left epidural recess." [000175].

Armstrong met with a Rehabilitation Specialist from Comprehensive Rehabilitation Associates, Inc ("Comprehensive Rehabilitation") on December 9, 1992. [000184]. The Rehabilitation Specialist's report noted Armstrong's eagerness to go back to work, which he did on December 23, 1992. [001097]. Comprehensive Rehabilitation monitored plaintiff's return to work, and plaintiff reported that he experienced discomfort but it was not severe. [000196]. Comprehensive Rehabilitation closed plaintiff's file on January 14, 1993 after concluding that Armstrong had adjusted well to his return to work. Id.

On January 1, 1994, Armstrong awoke with severe pain and numbness in his right arm. [000240]. Armstrong visited Dr. Louis D. Nunez, who determined that plaintiff would probably need neck surgery and referred him to Dr. Radna (who had performed plaintiff's lumbar surgery in 1990). [000199].

Liberty received notice that Armstrong would be absent from work beginning on January 3, 1994. [000782]. Liberty asked Armstrong to supply information about his condition in anticipation that Armstrong would make a claim for short-term disability benefits. Id. Dr. Nunez reported to Liberty that Armstrong was totally disabled for any occupation. [000199]. Plaintiff received short-term disability benefits for the maximum term of twenty six weeks — from January 3 until July 2, 1994. At that time, plaintiff's claim became a long-term disability claim and he continued to receive disability payments. [000757].

Dr. Radna continued to treat plaintiff over that period of time. Dr. Radna determined that plaintiff's cervical spine showed severe cord compression due to a herniated disc, and on February 24, 1994 he performed an anterior cervical discectomy on plaintiff. [000203; 000210]. During periodic visits over the next several months, plaintiff reported that he felt considerable relief of cervical and radicular pain but still suffered some cervical spasms and discomfort in his right hand. [000215; 000217; 000226; 000229].

On August 25, 1994 Dr. Radna sent a note to Liberty indicating that plaintiff was "neurosurgically cleared for full time duties, excluding long distance travel." [000742]. Armstrong returned to work from August 29 through September 27, 1994, when he reported that he was unable to continue work due to pain. [000734; 000729]. In the form that he filled out in support of his claim for long-term disability benefits, Armstrong described his injury as two herniated disks in his neck and reported that he had suffered persistent pain in his neck since the discs were removed on February 24, 1994. [000729].

Plaintiff continued to see Dr. Radna as well as other doctors. On June 27, 1995, for example, Dr. Radna found evidence of "moderate bilateral para-vertebral spasm in the cervical region, with mildly diminished range of motion." [000254]. And on November 28, 1995, Dr. Radna's diagnosis continued as persistent cervical and lumbosacral pain syndrome following decompressive surgery of the cervical and lumbosacral regions. [000261-000262].

At Liberty's request, Armstrong underwent a Neurosurgical Consultation by Dr. Hugh S. Wisoff on December 21, 1995. [000264]. As a part of his consultation, Dr. Wisoff filled out a physical capacities form in which he stated that Armstrong was capable of sitting, walking, and standing for 90%, 20%, and 30%, respectively, of an eight hour day. He also noted that plaintiff was incapable of carrying, driving, traveling, or typing. [000268].

Based on Dr. Wisoff's evaluation, Liberty arranged a "transferable skill analysis" for Armstrong. [000959]. Plaintiff met with Neil Krouse, a vocational rehabilitation counselor. On January 17, 1996, Krouse issued a "Labor Market Survey." [000948]. Based on the survey, Liberty determined that there were occupations that plaintiff was capable of performing. As a result, Liberty advised Armstrong on February 29, 1996 that he was no longer eligible for long-term disability benefits. [000945].

Armstrong appealed Liberty's determination. [000939]. Plaintiff submitted a physical capacities evaluation from Dr. Radna and a radiological report from Dr. Arthur H. Groten. Dr. Radna's evaluation indicated that plaintiff could only sit, stand, or walk for a period of fifteen minutes; could occasionally lift or carry items up to five pounds; and could occasionally bend, squat, crawl, and reach above shoulder level. [001011-001016]. Dr. Groten reported "[d]egenerative and post-operative findings involving the lower cervical spine." [001001]. Upon considering this additional information, Liberty reopened Armstrong's claim and continued his benefits. [000926].

In April of 1996, the Social Security Administration awarded Armstrong Social Security Disability Benefits. [000915000918]. The award was retroactive from June 1, 1994, and plaintiff's policy with Liberty provided for a reduction of longterm disability benefits in the amount of Social Security benefits. Armstrong submitt ed a check to Liberty for reimbursement in the proper amount. [000885000888].

Liberty continued to pay plaintiff longterm disability benefits and periodically sought reports and recommendations pertaining to Armstrong's condition. In December of 1997, Liberty asked Armstrong to have Dr. Radna complete a Physical Capacities Form, Restrictions Form, and Attending Physician's Statement. [000875]. Liberty received the completed forms on February 23, 1998. Dr. Radna noted that Armstrong could sit for long periods of time, but he could neither read and write nor walk for longer than fifteen minutes. [000867].

On April 10, 1998, plaintiff sent Liberty a copy of CAT Scans performed on February 10, 1998. In the accompanying letter, Armstrong informed Liberty that he was undergoing physical therapy. [000855000857].

On November 6, 1998, Armstrong spoke with an analyst at Liberty and requested a referral to a specialist. [000299]. Plaintiff spoke with an analyst again on November 17, 1998. He described his symptoms, expressed his desire to return to work, and sought direction from Liberty regarding alternate treatment. [000851-000852].

At plaintiff's request, Liberty arranged for him to consult with a physiatrist, Dr. Esin Kaplan, on January 26, 1999. [000842]. Dr. Kaplan noted that Armstrong was not in acute pain, his neck motions were considerably limited, and his upper extremity movements and muscle strength were within the functional range with residual weakness of his right hand grasp and pinch strength. [000796]. Dr. Kaplan also recommended that plaintiff have an MRI. The MRI was conducted on February 9, 1999 and found "residual central osteophyte formation with compression of the spinal cord at C5-6 and C6-7." [000307].

In June of 1999, Liberty decided to hire an investigation company to conduct surveillance of plaintiff. [000821]. The investigation company conducted surveillance on Armstrong on twenty-eight separate occasions between July 8, 1999 and June 3, 2001. [000804-000806; 000404-000411]. The investigation company provided Liberty with written reports and video documentation.

Armstrong filled out an "Activities Questionnaire," which Liberty received on July 29, 1999. [000321-000323]. In the questionnaire, plaintiff indicated that he suffered pain when performing many routine life activities. Plaintiff also spoke with a Liberty analyst on August 12 and discussed possible pain management options. [000325].

Dr. Radna saw plaintiff on September 14, 1999. Dr. Radna's diagnosis remained as "chronic cervical and lumbo-sacral pain syndrome." He also noted that plaintiff's level of disability continued to be total. [000327].

Liberty arranged for Dr. Stephen Weinstein, a physical medical and rehabilitation specialist, to perform an "Independent Medical Examination" on plaintiff. Dr. Weinstein conducted the examination on January 24, 2000, and Liberty received his report on February 22, 2000. [000588000593]. The report indicated that Armstrong was physically limited by his history of cervical and lumbar disc herniations, and that plaintiff's "limitations of physical capacity are permanent in nature." Dr. Weinstein opined, however, that the restrictions placed on him by his attending physician were excessive. He concluded that plaintiff "should be able to read and write with modifications as needed," and "[h]e should be able to drive up to an hour at a time with the ability to pull over and stretch his legs if necessary."

On February 22, 2000, Liberty's medical director, Dr. Edward P. Crouch, spoke with Dr. Radna. [000576-000577]. In his memo memorializing the conversation, Dr. Crouch stated that "it is likely that this insured has significant impairment." He noted, however, that (1) surveillance tapes showed Armstrong moving fluidly and with no difficulty; and (2) plaintiff seemed to be "fairly well developed considering almost six years of receiving disability benefits while having chronic pain." Crouch recommended pursuing further surveillance.

Plaintiff visited Dr. Radna on May 9, 2000. Dr. Radna's diagnosis remained as "chronic cervical and lumbo-sacral pain syndrome." Dr. Radna also noted that plaintiff's level of disability continued to be total and, "in light of the chronicity of the patient's symptoms," permanent. [000336].

Liberty scheduled a "Functional Capacity Evaluation" of the plaintiff. [000522]. Daniel Fishman, an employee of Peak Physical Therapy, performed the evaluation on September 14 and 15, 2000. [000502-000511]. He found that plaintiff demonstrated poor quality of movement due to pain. Fishman concluded that (1) "[w]ork hardening is not recommended because client is primarily pain limited," and (2) Armstrong met the "medium" Physical Demand Level by the standards set by the National Institute of Occupational Safety and Health.

On October 13, 2000, Liberty received a "Vocational Review" report from Mary Paine O'Malley, a vocational/disability consultant. [000460-000462]. The report provided plaintiff's vocational and medical background, set forth his medical and functional status, reviewed Daniel Fishman's functional capacity assessment, and detailed O'Malley's personal contact with Armstrong. She concluded that plaintiff could not fully perform his own occupation without some modifications, but he could potentially perform other jobs in the insurance industry.

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