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Marasco v. Bridgestone/Firestone

February 15, 2006


The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge


Before the court are the parties' cross-motions for summary judgment involving a dispute over plaintiff's coverage under a disability benefits plan that was terminated by plaintiff's employer, defendant Bridgestone/Firestone, Inc. ("Firestone"). Plaintiff brings this action under Section 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. For the reasons set forth below, the court denies defendants' motion for summary judgment and grants plaintiff's motion for summary judgment. The court grants plaintiff's request for attorney's fees and costs and remands this case to defendants for reconsideration of plaintiff's claim for disability benefits.

I. Facts*fn1

Plaintiff David Marasco was hired by defendant Bridgestone/Firestone, Inc. ("Firestone") on November 10, 1986 as a Service Manager in the company's Brooklyn store location. Plaintiff was automatically enrolled in Firestone's Long Term Disability Benefits Plan for Salaried Employees (the "Plan"). The Plan vests Firestone's Pension Department, which is composed of the Disability Committee and Pension Board, with the authority to manage the Plan and make determinations as to coverage.

On December 7, 1998, plaintiff was admitted to the hospital for one week and diagnosed with deep venous thrombosis of the left leg, bilateral varicose veins, edema, and cellulitis. Plaintiff applied for disability benefits under the Plan and received benefits for an initial twenty-six weeks, the "Elimination Period," which ended on June 30, 1999. After the first twenty-six weeks, the Plan provides that the employee can apply for long term disability benefits for an additional two years. For this two-year period, called the "Initial Duration" of "Total Disability," the employee must show, among other requirements,*fn2 that he or she is (1) "completely unable to perform any and every duty pertaining to his [or her] occupation with the Company" because of "sickness (including mental or emotional disease or disorder) or accidental bodily injury," and (2) "under the regular care of a physician licensed to practice medicine (M.D. or D.O.) or a surgeon licensed to practice medicine and perform surgery." (Fugitt Aff. Ex. A § II.B.) Plaintiff's application for Initial Duration benefits was approved on July 15, 1999 and granted for a two-year period expiring on June 30, 2001.

To qualify for long term disability benefits after the Initial Duration, the requirements remain the same except for showing disqualification from certain work: the employee must show that he or she is "unable to perform the essential duties of any occupation for which the Covered Employee is reasonably suited by reason of education, training or experience." (Fugitt Aff. Ex. A § II.B (emphasis added).) On January 5, 2001, Sandie Fugitt, a disability analyst with Firestone's Pension Administration department, sent plaintiff a letter advising him that the Initial Duration benefits period was to expire and that he should send "all medical records from all treating physicians regarding all disabling conditions" in order to be considered for continued disability benefits. (Id. Ex. B. at 137.) On or about July 9, 2001, the Disability Committee met and denied plaintiff's claim for additional disability benefits beyond the Elimination Period and two-year Initial Duration. By letter dated July 12, 2001 from Ms. Fugitt, Firestone informed plaintiff that his disability benefits were denied "pursuant to Section II.B(b) of the Long Term Disability Plan. Under the provisions of the Long Term Disability Plan, you must be unable to perform the essential duties of any occupation for which you are reasonably suited by education, training or experience . . . ." (Id. at 181.) Also contained in the letter were instructions for pursuing an appeal. Plaintiff hired a lawyer to assist him in the appeal, which, after several requests for extensions, was filed on September 14, 2001. The Pension Board considered plaintiff's appeal in October 2001 and, by letter dated October 19, 2001, advised plaintiff that his appeal was denied, explaining that the Board had determined plaintiff was "physically capable of sedentary work." (Id. at 203.) Summary of Medical Evidence Presented in Plaintiff's Application for Disability Benefits Beyond the Initial Duration Plaintiff's application for disability benefits contained the following records:

* Report dated December 7, 1998, describing lower extremity vascular imaging performed by Dr. Harvey Stone and noting that plaintiff had acute right superficial femoral vein deep vein thrombosis and chronic left superficial femoral vein deep vein thrombosis. (Fugitt Aff. Ex. B at 141.)

* Discharge report from plaintiff's week-long hospital stay between December 7 and 14, 1998. Plaintiff was diagnosed with deep venous thrombosis, bilateral varicose veins, edema, and cellulitis. Plaintiff was instructed to take Coumadin (a blood thinner), elevate his legs, wear special stockings to aid blood flow to the legs, and start a weight loss program. (Id. at 144--45.)

* Report dated December 28, 1998 from Dr. Michael Kassouf, a general and vascular surgeon, noting that plaintiff has "Chronic Venous Insufficiency, associated with large varicosities and varicose veins, with advanced stasis dermatitis and pigmentation." Plaintiff was instructed to continue taking Coumadin and have weekly PT (prothrombin time) / PTT (partial thromboplastin time) tests for 12 to 24 months. (Id. at 143.)

* Report dated March 12, 1999 from Dr. Mitchell Tannenbaum, who diagnosed plaintiff with osteoarthritis and noted that there was no evidence of fracture or dislocation. (Id. at 142.)

* Certificate of Disability dated January 23, 2001 from Dr. Bhupendra Shah, plaintiff's physician, noting plaintiff's severe varicose veins, osteoarthritis of the knees, and phlebitic edema. Dr. Shah described plaintiff's disability as "severe and total complete" and likely to increase in the next six to twelve months. Dr. Shah reported that plaintiff had permanent restrictions on standing and sitting, was in need of keeping his legs elevated, and was incapable of sedentary or light duty work. (Id. at 139.)

* Report dated January 24, 2001 from Dr. Thomas Larkin, noting plaintiff's history of osteoarthritis in the right knee and that plaintiff could actively flex and extend his right knee up to ninety degrees. Dr. Larkin prescribed daily doses of Celebrex since plaintiff was not taking an anticoagulant. (Id. at 140.)

* Report dated April 20, 2001 from Dr. Elias Sedlin, an independent medical examiner hired by Firestone. Dr. Sedlin noted that plaintiff had surgery for varicose veins in 1988 and 1991 and that he developed deep vein thrombosis in 1996 and 1998. Dr. Sedlin reported plaintiff's history of being hospitalized and prescribed Coumadin and special leg stockings. Dr. Sedlin diagnosed plaintiff with osteoarthritis of the knees, morbid obesity, and chronic venous statis. Regarding plaintiff's limitations, Dr. Sedlin opined: "The patient is incapable of working at the job he form[er]ly held as he describes it. He could conceivably work at a sit down job which would not require him to get up and down frequently. I would consider him permanently and totally disabled, as I understand from his education attainments and his physical limitations." (Id. at 151--52.)

When Ms. Fugitt forwarded the above records to Dr. Kenneth Bulen, an advisor to the Disability Committee retained by Firestone to review plaintiff's file, Dr. Bulen requested on April 30, 2001 that an employability assessment be conducted for plaintiff. A company called Re-Employment Services prepared a list of ten jobs for which plaintiff might qualify. Dr. Sedlin found seven of the ten jobs appropriate for plaintiff, involving duties such as a telephone operator, dispatcher, or customer service representative, whereas Dr. Shah found none of the jobs appropriate. Based on the employability assessment and responses given Drs. Sedlin and Shah, Dr. Bulen then opined that "Mr. Marasco does not appear eligible for continued long term disability." (Fugitt Aff. Ex. B at 178.) These details, as well as the records above, were considered by the Disability Committee when it denied plaintiff's request for disability benefits beyond the Initial Duration.

On appeal to the Pension Board, plaintiff submitted an additional letter, dated September 4, 2001, from Dr. Shah, who indicated that he had been treating plaintiff since 1988. Dr. Shah stated that, in his opinion, Mr. Marasco is unable to maintain full or part-time gainful employment on a regular or sustained basis due to the severity of the condition of his legs, and edema of the legs, which is exacerbated by cardiomegaly [an enlarged heart].

He cannot stand for any length of time or do any lifting of heavy objects. He cannot sit for any period of time in excess of one half hour because the constant sitting will put pressure on his varicose veins and increase the swelling in his legs, which in turn increases his risk for ...

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