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September 29, 2004.

VICTOR NERYS, Plaintiff,

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge



Plaintiff Victor Nerys ("Nerys") alleges that defendants Building Service 32B-J Health Fund and the Trustees of Building Service 32B-J Health Fund (collectively "defendants"), improperly denied him disability benefits in violation of the Employee Retirement Income Security Act of 1974 ("ERISA"). See 29 U.S.C. § 1001, et seq. The defendants have moved for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, contending that there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law. The plaintiff opposes the motion. For the reasons set forth below, the defendants' motion is denied.


  From June 1974 through January 1993, Nerys worked in the building service industry as a superintendent. During the period of his employment, Nerys was a member of the Service Employees International Union, Local 32B-J ("Union") and a participant in the Union's Health and Pension Funds (collectively "the Funds"). On January 17, 1993, Nerys slipped on a wet bathroom floor and fell. As a result of the fall, Nerys sustained injuries to his left knee.

  In 1994, Nerys applied to the state of New York Workers' Compensation Board ("WCB") for workers' compensation benefits. A medical report prepared in connection with plaintiff's application stated that plaintiff's condition, as a result of the January 1993 injury to his knee, was permanent and equal to a schedule loss of use of seven and one-half percent of the left leg. The WCB concluded that plaintiff had a permanent partial disability and awarded him compensation benefits on that basis. In addition, on June 7, 1996, an administrative law judge of the Social Security Administration ("SSA") determined that, commencing on January 17, 1993, plaintiff was disabled within the meaning of the Social Security Act and was entitled to disability insurance benefits.

  Thereafter, in June 1996, Nerys applied to the Funds for benefits due to a disability.*fn1 Nerys contended that the injuries he sustained on January 17, 1993, had resulted in physical disabilities that prevented him from being able to engage in any occupation.

  The Union's Health Fund, a benefit fund established pursuant to the Taft-Hartley Act, 29 U.S.C. § 186, is jointly administered by an equal number of management and Union Trustees and is governed by an Agreement and Declaration of Trust, also administered by the Trustees. The Summary Plan Description of the Health Fund ("Health Plan") sets forth the benefits it provides. These include long-term disability benefits in the form of monthly cash payments to those who become "totally disabled." The Health Plan defines "total disability" to mean that "as a result of illness or injury [an employee] is unable to perform work in any capacity, commencing on the date the disability was incurred and provided the Employee was eligible under the Plan rules on the date the disability was incurred."

  The Health Fund requires medical proof of a long-term disability from a qualified physician. In addition, Health Fund Trustees are authorized to require an applicant for disability benefits to undergo an independent medical examination performed by a qualified physician other than the applicant's own physician. Furthermore, under the terms of the Health Plan, "[a]ll determinations as to an applicant's disability are made in the sole and absolute discretion of the Trustees."

  The Pension Fund also is governed by an Agreement and Declaration of Trust that is administered by an equal number of management and Union Trustees. According to the Summary Plan Description of the Pension Fund ("Pension Plan"), participants are eligible for disability benefits in the form of monthly cash payments if they are determined to be "totally and permanently disabled." A participant is deemed to have a total and permanent disability if "on the basis of medical evidence satisfactory to the Trustees, he or she is found to be totally and permanently unable, as a result of bodily injury or disease to engage in any further employment or gainful pursuit." As in the case of a participant in the Health Fund, a participant applying for a disability pension may be required to submit to an examination by a physician selected by Pension Fund Trustees. Furthermore, under the terms of the Pension Plan, "[t]he Trustees shall determine total and permanent disability and of the entitlement to a Disability Pension hereunder based upon information submitted."

  The plaintiff's application to the Funds for disability benefits was accompanied by a medical report, dated June 16, 1996, and prepared by plaintiff's orthopedist, Dr. Gustavo Rodriguez. Dr. Rodriguez diagnosed a medial meniscus tear in Nerys' left knee which caused him to experience persistent pain and tenderness. According to Dr. Rodriguez, the plaintiff was totally disabled for any occupation, including his regular occupation of building superintendent.

  In accordance with the Funds' usual procedure, Nerys also was referred to a physician in private practice, Dr. Stephen C. Allen, for an independent physical examination. On July 24, 1996, Dr. Allen examined the plaintiff and prepared a medical report. Dr. Allen found that Nerys could stand for one half hour, sit for less than five to ten minutes, walk less than six or seven blocks most days and was unable to carry a grocery shopping bag. Dr. Allen concluded that Nerys had a "relative disability to labor," but that he "should be able to do a sedentary job." Dr. Allen stated, however, that he preferred to review x-rays of the plaintiff before completing his evaluation.

  On August 5, 1996, the Funds denied Nerys' application for disability benefits on the ground that Nerys did not qualify under the relevant standard of permanent disability, that is, "the inability to work in any capacity." The letter of denial also informed Nerys of his right to appeal the decision and described the procedure for filing such an appeal. Nerys' appeal from the decision to deny him disability benefits was submitted on June 20, 2001. A hearing was held before the Trustees Appeals Committee ("Appeals Committee") on March 27, 2002. On that occasion, plaintiff brought to the attention of the Appeals Committee medical evidence that, he contends, demonstrated that his injury had left him totally and permanently disabled.

  The medical evidence submitted in support of plaintiff's appeal included: (1) the medical reports, described earlier, prepared by Drs. Rodriguez and Allen; (2) the medical report prepared for the WCB at the time Nerys applied for workers' compensation benefits; and (3) the decision of the SSA finding that Nerys was entitled to a period of disability and disability insurance benefits.

  In addition, plaintiff submitted a medical report prepared by Dr. Joseph Carfi on September 14, 1995. Dr. Carfi had concluded, based on an examination of Nerys, that he was unable to be substantially gainfully employed because of his inability to maintain any position or activity for any period of time without significant pain. Additionally, Dr. Carfi had found that Nerys' total disability was permanent. Also included among plaintiff's submissions was a letter addressed to Dr. Allen, dated July 29, 1996, and prepared by Dr. Richard H. Hamilton and Dr. Peter A. Kosovsky. Drs. Hamilton and Kosovsky stated, inter alia, that an examination of plaintiff's knees showed that they were normally and symmetrically developed and that the left knee was unremarkable. Nerys also submitted a medical report prepared by Dr. Bennett Futterman on May 24, 2001. Dr. Futterman, an orthopedist, reported, inter alia, that Nerys was temporarily totally disabled from carrying, lifting or bending, and that his prognosis was guarded. The medical progress notes of plaintiff's physician, Dr. Mohammed Chowdhry, from January 1990 through January 2001, along with reports of various tests prepared for Dr. Chowdhry, also were included among plaintiff's submissions.

  Following the March 2002 hearing, the Appeals Committee determined to postpone its decision concerning Nerys' application pending a second independent medical evaluation. Consequently, on August 22, 2002, plaintiff was examined by Dr. Peter Marchisello, a physician specializing in orthopedic medicine. In an August 30, 2002 letter to the Funds, Dr. Marchisello stated that the plaintiff had a structural and permanent disability that was moderate to severe in magnitude and partial in degree. Dr. Marchisello noted plaintiff's medical history, which included surgery on both knees, and reported that plaintiff was on medication for diabetes and hypertension. Dr. Marchisello noted that, following his injury in 1993, plaintiff was operated on for an internal derangement and meniscal tear. He noted that the plaintiff had not worked since 1993. On the basis of his physical examination of the plaintiff, Dr. Marchisello concluded that plaintiff's gait was normal, his overall posture was good, there was no evidence of malalignment of the lower extremities and no evidence of any gross deformities. Dr. Marchisello noted that plaintiff's shoulders and spine had a normal range of motion and that ...

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