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United States District Court, S.D. New York

April 8, 2004.


The opinion of the court was delivered by: DENNY CHIN, District Judge


In this case, plaintiff Dennis Paese sues under the Employee Retirement Income and Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., to challenge the decision of defendant Hartford Life and Accident Insurance Company ("Hartford") to terminate his long term disability benefits under his former employer's group disability insurance plan. The parties agreed to submit this dispute to the Court for a summary trial on the documentary evidence and written submissions, waiving their right to call witnesses.

  As discussed more fully below, the record shows unequivocally that Paese was totally disabled when Hartford decided to terminate his long term disability benefits. The numerous physicians who examined and treated Paese concluded that he suffered serious spine, shoulder, and hand injuries as the result of a motor vehicle accident. MRIs and other tests and studies objectively confirmed the existence of significant injuries. Indeed, Paese had two surgeries — first on his elbow and forearm, and second, months later, on his cervical spine as a disc was removed and bone was engrafted. Even the Social Security Administration determined that Paese was totally disabled and awarded him Social Security benefits. Instead of evaluating Paese's claim in a fair and open-minded manner, Hartford largely ignored this evidence and relied instead on entries taken out of context from the medical records and the opinions of two physicians who never even examined Paese and who were hardly unbiased.

  Accordingly, judgment will be entered in favor of Paese. My findings of fact and conclusions of law follow.


 A. The Facts

  1. Plaintiff

  Paese is a 53-year old, 300-pound, 6'l" man. (A 02-229, 02-410).*fn1 He was employed by Sequa Corporation ("Sequa") from March 7, 1977, until September 21, 1999, when his department was reorganized, his position was eliminated, and his employment was terminated. (A 02-503, 02-503A).

  From January 5, 1987, until the termination of his employment, Paese was Sequa's Director of Labor Relations in Hackensack, New Jersey. (A 02-503). Paese was responsible for labor relations at Sequa, including formulating and implementing labor and employee relations policies, serving as the chief negotiator for collective bargaining agreements and labor contracts, and maintaining relations with unions. (A 02-501). His position required extensive traveling, throughout the United States and Europe, and he often had to travel to plant and division locations and various government agency offices throughout the United States, at times working long and odd hours. (A 02-209-10; see A 02-395 (Sequa human resources manager reporting that Paese's position "required extensive travel" and that travelling was "definitely considered an essential function of the occupation")).

  On August 30, 1999, Paese was involved in an automobile accident. He sustained injuries, but was not hospitalized. (A 02-364, 02-594-95). He returned to work until September 8, 1999, when he stopped working and applied for disability benefits. (See A 02-503). As of September 8, 1999, Paese's salary was $137,254 per annum and he had earned $151,822 for the year, consisting of $93,006 in base pay and $58,816 in bonus. (A 02-018, 04-081).

  2. The Plan

  As of January 1, 1998, Paese was covered, as a Sequa employee, under Sequa's employee benefit plans, which included a group "plan of Long Term Disability Insurance" under Group Insurance Policy GLT-208141 (the "Plan"), issued by Hartford as insurer. (A 001, 041, 0043). Under the Plan, claims and appeals from the denial of claims were to be submitted to Hartford. (See A 056-57).

  The Plan provides "income protection" for Sequa employees who "become disabled from a covered accidental bodily injury, sickness or pregnancy." (A 043). "Disabled" means "Totally or Residually Disabled." (A 045). A "Residual Disability" is a partial disability (A 047) and is not at issue here, as Paese applied for Total Disability benefits only. "Total Disability" and "Totally Disabled" are defined to mean:

(1) during the Elimination Period; and
(2) for the next 24 months, you are prevented by:
(a) accidental bodily injury;
(b) sickness;
(c) mental illness;
(d) substance abuse; or
(e) pregnancy, from performing the essential duties of your occupation, and as a result you are earning less than 20% of your Pre-Disability Earnings, unless engaged in a program of Rehabilitative Employment approved by us.
After that, you must be so prevented from performing the essential duties of any occupation for which you are qualified by education, training, or experience.
(Id.). For Paese, the "Elimination Period" was 180 days. (A 044; A 02-390). " [Y] our occupation" refers to the defined term "Your (Own) Occupation," and means the employee's occupation as recognized in the "general workplace" rather than his or her specific job for a specific employer or at a specific location. (A 048).

  Monthly benefits under the Plan are payable if an employee becomes "Disabled" while insured under the Plan, remains Disabled throughout and beyond the Elimination Period, is and has been under the regular care of a physician, and "submit [s] proof of loss satisfactory to . . . Hartford." (A 052; See also A 056 (discussing "proof of Disability")). Payments are to be adjusted for inflation. (A 045 (applying a formula based on a consumer price index)). An employee who became disabled was also entitled to a waiver of life insurance premium benefits. (A 3-031).

  3. Paese'S Disability Benefits

  Paese applied for and was granted short term disability benefits, which he received until March 8, 2000. (Def. Mem. at 2; see A 02-500). On March 10, 2000, Sequa submitted to Hartford on Paese's behalf an application for long term total disability benefits. (A 02-500-06). On April 12, 2000, a Hartford representative noted in an internal worksheet that Paese was engaging in physical therapy, was scheduled for hand and elbow surgery, and was hoping to avoid spinal surgery. (A 02-486). Noting that Paese's job required travel, the representative recommended approval of the application. (A 02-485-86).

  On May 4, 2000, Hartford advised Paese that his claim for long term disability benefits had been approved and he began receiving long term disability benefits, at the rate of $6,862.70 per month, or 60% of his base earnings. (A 02-49, 02-390). On October 11, 2001, however, Hartford advised Paese that it was terminating his benefits, writing:

We have completed our review of your claim for benefits and have determined medical documentation no longer establishes a total disability beyond October 11, 2001 from Your Own Occupation as a Director of Labor Relations. Accordingly, LTD [long term disability] benefits are not payable to you beyond October 11, 2001.
(A 02-218).

  On November 7, 2001, Paese wrote to Hartford, challenging its decision to terminate his benefits. (A 02-207). By letter dated November 19, 2001, Hartford responded, stating that it had received Paese's "appeal," as set forth in his November 7, 2001, letter, and advising that it was referring the claim to its Appeals Unit. (A 02-205). Paese and Hartford thereafter engaged in an extended exchange of correspondence. (See, e.g., A 02-179 (Paese letter dated 12/6/01); A 02-59 (Hartford letter dated 12/13/01); A 02-204 (Hartford letter dated 1/9/02); A 02-51 (Paese letter dated 1/27/02); A 02-54 (Paese letter dated 2/16/02); A 02-131 (Paese letter dated 2/28/02)).

  By letter dated March 20, 2002, Hartford rejected Paese's appeal and adhered to its decision to terminate his benefits, writing:

Our determination has remained that the documentation on file, taken as a whole, supports our original decision. Therefore, we must uphold our decision to terminate your claim for LTD benefits.
(A 02-33). 4. Plaintiff's Medical Condition
  In the accident on August 30, 1999, Paese was driving when his car was rear-ended by another vehicle. He was wearing his seatbelt (A 02-410), but both hands impacted into the steering wheel. (A 02-364). He went to work after the accident, but later in the day he began to experience severe neck pain, shoulder pain, headache, and tingling in the arms. (A 02-410, 02-413).

  Paese was seen by Dr. Gudimal, an orthopedic surgeon at N.Y.U., and began physical therapy. He had severe pain and limitation of both shoulders and was unable to internally rotate either shoulder without severe pain and limitation. (A 02-410).

  Paese had an MRI on September 9, 1999, just ten days after the accident. (A 02-400). The clinical diagnosis was "[c]ervical spine injury sustained in a motor vehicle accident." (Id.). The MRI showed anterior bulging of the discs at all levels from C4/5 through C6/7, straightening of the normal cervical lordosis, paravertebral muscle spasm, dessiccation of the C5/6 disc, and broad thin herniated discs with thecal compression at C2/3 through C6/7. (Id.; See also A 02-409).

  Paese commenced physical therapy with Peak Physical Therapy ("Peak") on September 10, 1999. (A 02-438).

  On November 16, 1999, an MRI on the right shoulder showed impingement and diffuse tendinitis. (A 02-381). An MRI on the left shoulder the next day showed mild impingement. (A 02-382).

  Paese was examined by a neurosurgeon, Dr. Stephen Fromm, on December 16, 1999, some three-and-a-half months after the accident. (A 02-410). Dr. Fromm concluded that Paese was suffering from cerebral concussion, post-concussive syndrome headaches, cervical disc ridge syndrome with thecal sac and nerve root compression, cervical radiculopathy, re-injury low back, lumbosacral sprain, impingement syndrome in both shoulders, and thoracic outlet syndrome. (A 02-411). Dr. Fromm concluded that the accident was "a competent producing cause" of Paese's medical condition. (Id.). He recommended physical and chiropractic therapy. (Id.).

  On December 22, 1999, Paese was examined by Dr. Sara Vicente in a physical medicine and rehabilitation consultation. (A 02-413). Her diagnosis was cervical muscle strain, cervical disc bulges, bilateral shoulder impingement syndrome, and lumbosacral muscle strain. (A 02-414). She recommended physical therapy and other tests. (Id.). On December 23, 1999, Dr. Vicente performed an upper extremity electrodiagnostic study on Paese. (A 02-160). Dr. Vicente concluded that this was "an abnormal electrodiagnostic study" and that the findings were "consistent with bilateral carpal tunnel syndrome, mild to moderate on the right and mild on the left." (A 02-162). She also concluded that there was no evidence of peripheral neuropathy on both upper extremities. (Id.)

  Dr. Vicente saw Paese in a follow-up on February 2, 2000. (A 02-415). Paese reported that his neck and shoulder pain had improved but the numbness in both hands had gotten worse and that he was having difficulty using his fingers and hands to hold tools. (Id.). Dr. Vicente recommended the use of wrist splints at night, the continuation of physical therapy, evaluation for possible carpal tunnel surgery, continued chiropractic treatment, and further follow-up. (A 02-415-16).

  Dr. Fromm saw Paese in a neurological follow-up on February 9, 2000. (A 02-417). Paese was "extremely depressed and discouraged" and reported that he wais getting worse instead of better. Despite his physical therapy, he reported severe neck pain, locking of the neck, and numbness in both forearms, both hands, and all fingers. (Id.). Dr. Fromm made an additional diagnosis of post-traumatic stress syndrome. (Id.).

  On February 10, 2000, Paese had an MRI of the lumbar spine. (A 02-408). The MRI showed degenerative disc disease and mild broad-base disc bulging at L4/5, without evidence of spinal stenosis. (Id.). Small hemangiomas were seen in the LI and S1 vertebral bodies. (Id.).

  On February 25, 2000, Paese was examined by Dr. Vicente again. (A 02-418). He still complained of severe neck pain, bilateral shoulder pain, and worsening of hand numbness bilaterally. (Id.). He had not been able to work because his job involved a lot of traveling by car and plane. (Id.). Dr. Vicente's impression was cervical muscle strain, multi-level cervical disc herniation, bilateral shoulder impingement syndrome, bilateral carpal tunnel syndrome, and lumbosacral muscle strain. (A 02-419). She concluded that Paese suffered from a partial, temporary, and moderate disability. (Id.).

  Also on February 25, 2000, Dr. Vicente filled out and signed Paese's application for long term disability benefits. (A 02-594-95). Dr. Vicente reported that Paese suffered from cervical disc herniation, bilateral shoulder impingement syndrome, and bilateral carpal tunnel syndrome. (A 02-594). She noted that no heavy lifting should be performed and that reaching, working overhead, pushing, and pulling were not recommended. (A 02-595). She also noted that no keyboard use or repetitive hand motion should be done. (Id.). She reported that Paese had become unable to work on August 30, 1999, but left blank the question as to how long the limitations would last. (Id.).

  On March 8, 2000, Paese saw Dr. Fromm for a neurological follow-up. (A 02-420). Dr. Fromm noted that a determination would be made as to whether surgery would be required. (Id.).

  On March 10, 2000, Paese consulted with Dr. Keith Raskin of the orthopedic surgery department at N.Y.U. Medical Center. (A 02-364). After examining Paese, Dr. Raskin concluded that Paese "does indeed have peripheral neuropathies, which appear to be related to the date of the accident." (Id.). Dr. Raskin also believed that "some of [Paese's] pain and sensory loss is also due to the cervical complaints." (Id.). He suggested certain out-patient surgery, followed by physical therapy, and further surgery at a later date if warranted. (A 02-365).

  In mid-March 2000, Paese consulted with Dr Joseph Dryer. (A 02-369). Dr. Dryer examined Paese and concluded that Paese was "suffering neck pain and radiculopathy from multi-level disc herniation." (A 02-370). He suggested another MRI before further recommendations could be made. (Id.).

  An additional MRI was taken of Paese's cervical spine on March 27, 2000. (A 02-159). It showed "[d] iffuse cervical Spondylosis most severe at C5-6 and C6-7." (Id.).

  On April 12, 2000, Paese saw Dr. Vicente for a follow-up. (A 02-421). He was still complaining of neck pain and bilateral hand numbness. (Id.). Dr. Vicente recommended continued therapy and follow-up, and noted that she needed to See the results of the recent MRI. (Id.). On April 26, 2000, Paese had surgery, consisting of right elbow ulnar nerve decompression, anterior subcutaneous transposition, forearm fasciotomy, median nerve decompression, and neurolysis. (See A 02-295, 02-322). On May 4, 2000, when he was examined post-operatively, he was doing very well. (Id.). He continued to do very well in the follow-ups to the surgery. (A 02-296 (5/11/00), 02-297 (5/19/00), 02-291 (7/17/00)).

  On May 24, 2000, Paese saw Dr. Vicente for a follow-up, post-surgery. (A 02-322). Paese reported that the numbness on the first three fingers of his right hand had resolved and that the numbness in the remaining two fingers had improved since the surgery. (Id.). He reported that he had also received an injection in his cervical spine from Dr. Salaze of the Pain Management unit at N.Y.U. and the pain in his neck had improved significantly. (Id.). He was still undergoing physical therapy, (Id.). After examining Paese, Dr. Vicente recommended that he continue physical therapy and follow-up with both his hand surgeon and Dr. Salaze. (A 02-323).

  On July 5, 2000, Paese was seen for follow-up by Dr. Sioban McDermott, one of Dr. Vicente's colleagues. (A 02-321). Paese was still complaining of right fourth and fifth digit and elbow numbness, although it was improving, with continuous aching of the right hand. (Id.). He also reported continued grip weakness with some improvement in strength as well as persistent neck and bilateral shoulder pain. (Id.). On August 2, 2000, Paese was seen for follow-up by Dr. Mohammad Rahman, who was also in Dr. Vicente's office. (A 02-319-20). Paese complained of neck pain on and off, radiating to the right shoulder, and occasional numbness in the fourth and fifth fingers of the right hand. (Id.). He reported some improvement in the numbness of both hands and continued to complain of bilateral shoulder pain. (Id.).

  On August 3, 2000, Paese saw Dr. Dryer for follow-up. (A 02-289). Dr. Dryer noted that Paese had recovered from the surgery — the carpal tunnel release and release of the ulnar nerve in the right elbow. (Id.). Paese also reported that although the epidural injection given to him by Dr. Selassie (apparently Salaze) had provided temporary relief, the pain had returned. (Id.). Dr. Dryer concluded that because Paese's pain had not improved with nonoperative treatment, "it was reasonable to consider surgery at [that] time." (Id.). He discussed anterior cervical discectomy and fusion at C5/6 with Paese, and decided to schedule the surgery for September 2000. (Id.).

  Dr. Dryer performed the surgery on Paese on September 27, 2000. (A 02-286). He performed an anterior cervical microdiscectomy and spinal cord decompression at C5/6 and anterior cervical interbody fusion with allograft at C5/6. (Id.). The disc at C5/6 was removed and Paese was given a bone graft. (A 02-287).

  On October 17, 2000, Dr. Dryer saw Paese for post-operative follow-up and concluded that the bone graft was "healing quite nicely." (A 02-276). The cervical collar was removed and the wound was well healed. (Id.). Paese reported "excellent relief." (Id.). Physical therapy was prescribed. (A 02-237).

  On December 20, 2000, Dr. Dryer saw Paese for further follow-up. (A 02-274). X-rays showed the fusion had become solid and Paese reported significant reduction in pain. (Id.). The "usual activity restrictions" were discussed with Paese. (Id.). Physical therapy was to continue. (Id.).

  On March 20, 2001, nerve conduction studies and an electromyograph indicated the presence of "median nerve compression at the wrists consistent with bilateral carpal tunnel syndrome." (A 02-141, 02-142).

  On July 19, 2001, Dr. George Kazda issued a written report after reviewing Paese's medical records. (A 02-229). Although he agreed that Paese developed "a multitude of neck, shoulder, and upper extremity symptoms" as a result of the August 30, 1999, accident, he opined that "Paese retains the physical functional capacity for work at the sedentary level on a full-time basis." (A 02-232, 02-234). Dr. Kazda did not actually examine Paese, but based his conclusions solely on a review of the records. (A 02-229-34). Dr. Kazda relied on, among other things, an entry in the Peak progress notes stating that in physical therapy on February 1, 2001, Paese had swung a golf club 20 times. (A 02-232; see A 02-222 ("Pt. swung golf club 20X & had no pain")).*fn2 Dr. Kazda also based his conclusions on his belief that Paese's job was "a very sedentary type of position with lifting of less than ten pounds and a quiet environment." (A 02-233). Dr. Kazda, who listed his title as "Associate Medical Director for The Hartford," wrote the report for Hartford. (A 02-229, 02-234). He noted that he had "been asked to review Mr. Denise [sic] Pease's [sic] medical record and render an opinion regarding his functional capacity for sedentary occupation." (A 02-229).

  On October 19, 2001, another MRI was obtained for Paese. (A 02-041). The MRI was compared to the MRI that had been obtained on March 27, 2000. (Id.). The report concluded that there had been "no significant change in the size of the large disc herniation at the C6/7 level," (A 02-042). It also reported "more pronounced central disc herniations at the C3/4 and C4/5 levels." (Id.).

  In a report dated February 1, 2002, to the Office of Hearings and Appeals of the Social Security Administration (the "SSA") of the United States Department of Health and Human Services, Dr. Dryer reviewed Paese's history and treatment and opined that "Paese is permanently disabled from any occupation." (A 02-047-48).

  In a report dated March 5, 2002, prepared for Hartford on a Physical Capacities Evaluation Form, Dr. Dryer reported that in an eight-hour work day Paese could sit for six hours, stand for two hours, walk for two hours, and drive for two hours. (A 02-127, 02-128). He reported that Paese could never lift 21 or more pounds, that he could occasionally lift 11 to 20 pounds, and that he could frequently lift 1 to 10 pounds. (A 02-128). He reported that Paese could only occasionally reach above his shoulder and could frequently reach to at or below waist level. Dr. Dryer also reported that Paese had reached maximum medical improvement and was permanently disabled, that is, he could not return to work at his regular occupation. (A 02-129).

  On March 19, 2002, just one day before Hartford issued its final decision, Dr. Barry Turner issued a report to Hartford based on his review of Paese's medical records. (A 02-068-094). He apparently also spoke to some of the medical providers. (A 02-068-69). Dr. Turner concluded that although "there may have been a possible strain to the cervical spine at the time of the motor vehicle accident on 8/30/99, . . . it [was] very unlikely that this was significant. . . ." (A 02-086). He also concluded that any impingement syndrome of the shoulder, carpal tunnel syndrome, and ulnar neuritis at the elbow would not have been caused by the accident. (A 02-087). He likewise concluded that it was unlikely that Paese re-injured his lumbosacral spine. (Id.). Dr. Turner also relied on the apparent fact that in February 2001 Paese was purportedly able to swing a golf club 20 times in one day without pain, although he does not note that this was part of physical therapy. (A 02-089). In the end, Dr. Turner concluded that no restrictions on Paese's ability to work were supported "by the records," as long as Paese engaged in light duty work only. (A 02-091).

  5. Additional Medical Evidence

  Paese has presented two additional pieces of medical evidence. The first, a decision of the SSA, was presented to Hartford before it rendered its final decision and thus this decision is in the administrative record.*fn3 The second, the conclusions of Dr. Robert Stoller, who examined Paese for the defendants in the personal injury action arising out of the motor vehicle accident in question, was not submitted to Hartford during the administrative process, and thus is not part of the administrative record.*fn4 a. The SSA Decision

  On April 7, 2000, Paese filed an application for disability benefits with the SSA. (A 02-132). In a decision dated February 22, 2002 (A 02-138), the SSA concluded that Paese suffered from "a serious orthopedic disorder which has not been fully resolved." (A 02-136). The SSA also concluded as follows:

[C]onsidering [Paese]'s age, educational background, work experience, and residual functional capacity, he is incapable of making a successful adjustment to work that exists in significant numbers in the national economy. A finding of "disabled" is therefore reached within the framework of the medical-vocational guidelines.
(Id.). The SSA concluded that Paese was disabled within the meaning of the Social Security Act and awarded him benefits commencing September 8, 1999. (A 02-138).

  Stoller's examination was an "independent orthopedic exam." (Compl., Ex. 2 at 1). b. Dr. Stoller's Report

  Dr. Stoller conducted a physical examination of Paese on January 28, 2002, and wrote a report summarizing his findings and the medical records he had reviewed. (Compl., Ex. 2). Dr. Stoller diagnosed Paese as having: (1) cervical strain, with herniated disks at C3/C4, C4/C5, and C6/C7, and interval fusion of C5/C6 disc; (2) lumbosacral strain with disc bulging at level L4/5; (3) severe osteoarthritis of the left A-C joint causing mild impingement syndrome reference the supraspinatus muscle; (4) severe osteoarthritis of the acromioclavicular joint caused by osteohytic spur formation of the right shoulder; and (5) bilateral carpal tunnel syndrome. Dr. Stoller also concluded:

The patient is not able to do any work at this time due to his disability. The accident of 08/30/99 is the competent producing cause for the above listed diagnoses. He needs continued treatment and . . . he may need surgery on both shoulders and also re-exploration of the cervical spine area.
(Id.. Ex. 2 at 4).

  B. Prior Proceedings

  Paese commenced this action pursuant to § 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132 (a)(1)(B), on December 11, 2002. The Court has jurisdiction over this action under § 502(e)(1) of ERISA, 29 U.S.C. § 1132 (e)(1).

  The parties engaged in discovery. At a pretrial conference on August 27, 2003, the parties agreed to a summary trial on the papers, waiving their right to present witnesses. See Acuff-Rose Music Inc. v. Jostens, Inc., 155 F.3d 140, 142-43 (2d Cir. 1998) ("[A] district court may decide a case by summary bench trial upon stipulation of the parties as long as the parties have willingly forgone their right to a full trial."). I issued an order memorializing the parties' agreement and setting forth a briefing schedule.

  Paese also seeks attorneys' fees and costs under § 502(g) of ERISA, 29 U.S.C. § 1132(g)(1).


 A. Standard of Review and Burden of Proof

  The parties agree that Hartford's denial of long term disability benefits is subject to de novo review by this Court. (Pl. Mem. at 22-23; Def. Mem. at 1). As the Supreme Court has held, a de novo standard applies unless a plan gives a plan administrator "discretionary authority to determine eligibility for benefits." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Hartford has not argued that the Plan here gives it such discretionary authority, and thus de novo review applies. See Lauder v. First Unum Life Ins. Co., 284 F.3d 375, 379 (2d Cir. 2002).

  As a plaintiff seeking to recover benefits under an ERISA plan that requires him to submit proof of his disability (A 052, 056), Paese has the burden of proving by a preponderance of the evidence that he is totally disabled within the meaning of the Plan. See Piscottano v. Metropolitan Life Ins. Co., 118 F. Supp.2d 200, 215 (D. Conn. 2000); Barnable v. First Fortis Life Ins. Co., 44 F. Supp.2d 196, 204 (E.D.N.Y. 1999); See generally Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 765 (2d Cir. 2002) ("[A]s a matter of general insurance law, the insured has the burden of proving that a benefit is covered, while the insurer has the burden of proving that an exclusion applies.").

 B. The Merits

  The issue presented is whether, on the record before the Court, Paese has proven that he was "Totally Disabled" within the meaning of the Plan on October 11, 2001, when Hartford terminated his benefits, and on March 20, 2002, when Hartford denied his appeal from the October llth decision. I conclude that Paese has met his burden of proof, and that he has shown by a preponderance of the evidence that he was prevented by the bodily injuries he sustained in the August 30, 1999, accident from performing the essential duties of his occupation through March 8, 2002 (24 months after 180 days after the accident), and from thereafter performing the essential duties of any occupation for which he was qualified.*fn5 I reach this conclusion for the following reasons:

  First, Paese has presented convincing evidence that he Was Totally Disabled. His treating physicians, who are most familiar with Paese's medical condition, concluded as much. For example, Dr. Vicente, who treated Paese for quite some time, opined on February 25, 2000, that Paese was disabled and unable to work. (A 02-594-95). In a report dated March 5, 2002, Dr. Dryer, who performed surgery on Paese, concluded that Paese was permanently disabled. (A 02-129). Other treating physicians made contemporaneous findings, as they were treating Paese, that he suffered from cervical spine injuries, impingement syndrome, and carpal tunnel syndrome.*fn6

  Moreover, the physicians' impressions were supported by MRIs and other objective tests and studies, which confirmed the existence of significant injuries. Indeed, Paese had two surgeries, including a disc removal and bone graft on his spine, and he was in physical therapy for years. Finally, Paese's work as Director of Labor Relations required long hours, working with labor unions and governmental agencies, and extensive traveling, including on plane trips throughout the United States and Europe (which undoubtedly required him to carry luggage). Surely his medical condition prevented him from engaging in these activities.*fn7 The record shows that Paese was not a malingerer — he worked for Sequa for more than 22 years and even went to work immediately after his accident.

  Second, Hartford's evidence that Paese was not Totally Disabled is not credible. It consists largely of the reports of Dr. Kazda and Dr. Turner.*fn8 Neither Dr. Kazda nor Dr. Turner actually examined Paese, and it is apparent from a reading of their reports that they were straining to reach a conclusion to Hartford's liking. Dr. Kazda even spelled both of Paese's names wrong, and he pulled statements from the medical records out of context and concluded that Paese's job was "a very sedentary type of position." (A 02-233). Moreover, Dr. Kazda was hardly disinterested, as he described himself as "Associate Medical Director for The Hartford." (A 02-234). Dr. Turner, who was paid $2,430 by Hartford for his report (A 02-067), clearly was straining against Paese as he concluded, in essence, that there were no serious injuries, even though Paese ultimately had to have spinal surgery and a bone graft. Finally, of course, Hartford itself decided, on May 4, 2000, that Paese was Totally Disabled, and it has simply not demonstrated that Paese's condition had improved by October 11, 2001, to the point that he was no longer disabled. Indeed, if anything, Paese's condition worsened after May 4, 2000, to the point where he was required to have spinal surgery on September 27, 2000. In fact, nothing significant happened between September 27, 2000, and October 11, 2001, to support Hartford's apparent conclusion that Paese had improved to the point that he was no longer disabled.

  Third, additional, independent medical evidence confirms that Paese was Totally Disabled. Based on largely the same evidence presented to Hartford, the SSA concluded on February 22, 2002, that Paese suffered from a serious orthopedic disorder that rendered him disabled not only for his own job but for any available work. (A 02-136). Likewise, Dr. Stoller, who was examining Paese for the defendants in the personal injury action in New Jersey, concluded on January 28, 2002, that Paese was disabled. (Compl., Ex. 2).

  In short, based on Paese's convincing medical evidence, corroborated by the SSA decision and Dr. Stoller's findings, and in the absence of substantial contrary evidence to support Hartford's position, I conclude that Paese was Totally Disabled within the meaning of the Plan.

 C. Attorneys' Fees and Costs

  Section 502(g) of ERISA provides that "the court in its discretion may allow a reasonable attorney's fee and costs of action to either party." 29 U.S.C. § 1132(g)(1). In exercising its discretion to allow fees, a district court is to consider the five factors set out in Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869 (2d Cir. 1987):

(1) the degree of the offending party's culpability or bad faith, (2) the ability of the offending party to satisfy an award of attorney's fees, (3) whether an award of fees would deter other persons from acting similarly under like circumstances, (4) the relative merits of the parties' positions, and (5) whether the action conferred a common benefit on a group of pension plan participants.
815 F.2d at 871; accord, Lauder, 284 F.3d at 383.

  Considering these factors, I conclude that Paese is entitled to attorneys' fees and costs. First, although I do not reach the issue of whether Hartford acted in bad faith, I do believe that Hartford failed to engage in a fair and open-minded consideration of Paese's claim. Rather, it largely disregarded substantial evidence of his serious injuries and relied instead on snippets pulled out of context from the medical records. Indeed, one of the health care providers commented that Hartford had engaged in a "manipulation" of the facts. (A 02-217). *fn9 Hartford also largely ignored substantial evidence that Paese's position was not a sedentary one and its conclusion that a position that requires negotiating collective bargaining agreements and maintaining relationships with unions is a sedentary position makes no sense. Moreover, by terminating Paese's benefits and forcing him to sue, Hartford has managed to avoid paying Paese $6,862.70 per month since October 11, 2001 — some two-and-a-half years.

  Second, Hartford has the financial ability to satisfy an award of attorneys' fees. Third, an award of attorneys' fees will deter other insurers from terminating benefits unjustifiably, for insurers will be put on notice that if they deny benefits to plan participants without engaging in a fair consideration of their claims, they will be subject to an award of attorneys' fees and costs. Fourth, not only is Paese the prevailing party, but his position in this lawsuit is far more meritorious than Hartford's. Finally, although this is an individual action that will not confer a common benefit on a group of pension plan participants, a benefit is conferred, in a general sense, on group employee benefit plan participants in that insurers will be deterred from terminating benefits without reason.

  Accordingly, Paese will be awarded his reasonable attorneys' fees and costs incurred in this action.


  For the reasons set forth above, judgment will be entered in favor of Paese against Hartford awarding him long term disability benefits of $6,862.70 per month from October 11, 2001, to date, with pre-judgment interest, together with any adjustments and other benefits required by the Plan, as well as reasonable attorneys' fees and costs. Counsel for Paese shall submit a proposed judgment on notice within seven business days hereof. The parties shall endeavor to agree on the amount of reasonable attorneys' fees and costs (without prejudice to Hartford's right to appeal). If the parties are unable to agree on the amount of fees and costs, Paese shall promptly submit a fee application, Hartford may oppose within seven business days thereafter, and the Court will enter a supplemental judgment awarding fees and costs following a review of the papers. SO ORDERED.

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