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Wein v. Prudential Ins. Co. of America

September 30, 2006

JUDY WEIN PLAINTIFF,
v.
PRUDENTIAL INS. CO. OF AMERICA DEFENDANT.



The opinion of the court was delivered by: Garaufis, United States District Judge

MEMORANDUM & ORDER

Judy Wein ("Plaintiff" or "Wein") brings this action against the Prudential Insurance Company of America ("Defendant" or "Prudential) under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. ("ERISA") to recover partial long term disability benefits. Both parties have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.*fn1 For the reasons set forth below, Defendant's motion is DENIED and Plaintiff's motion is GRANTED. Plaintiff's request for reasonable attorney's fees and costs is GRANTED.

I. Background

Wein has been employed by Aon Risk Services ("Aon") as an Assistant Director for over twenty five years. (Plaintiff's Local Rule 56.1 Statement ("Pl. 56.1 Stmt.") ¶ 5; Defendant's Local Rule 56.1 Statement ("Def. 56.1 Stmt.") ¶ 1.) Through her employment with Aon, Plaintiff has been a participant in a long term disability group coverage plan ("the Plan") pursuant to the insurance policy ("the Policy") issued by the defendant. (Pl. 56.1 Stmt.¶ 18; Def. 56.1 Stmt. ¶¶ 2-3.) The Policy provides for benefit payments to be made to the insured in the event of a "long period of [d]isability," which may be "total" or "partial." (Schlosser Affirmation, dated Nov. 22, 2005, Ex. D ("Pl. Ex. D" or "the Administrative Record"), at 27-29.) Plaintiff alleges that she is entitled to "partial disability" benefits under the Plan. The conditions of eligibility for partial disability under the Policy are all of the following:

(1) Due to Sickness or accidental Injury you are not able to perform for wage or profit, the material and substantial duties of your occupation on a full time basis.

(2) You are working for wage or profit:

(a) at your own occupation, but you are not able to perform your duties on a full time basis; or

(b) at another occupation.

The amount of your earnings is your Partial Disability Earnings.

(3) Your Partial Disability Earnings are not more than 80% of your Pre-Disability Earnings. Your Pre-Disability Earnings are the amount of your monthly Earnings before your period of Disability began.

(4) You are under the regular care of a doctor. (Id. at 27; Def. 56.1 Stmt. ¶ 9.)

Wein's claim for partial disability benefits arose from injuries suffered as she escaped the World Trade Center ("WTC") during the September 11, 2001 terrorist attacks on the WTC. (Compl. ¶¶ 6,14.) On that day, she was working on the 103rd floor of the WTC's South Tower, when the North Tower was hit by an airplane. (Id. ¶ 14.) After she and her co-workers realized that the WTC was under attack, they began descending the stairs to reach an elevator on the 78th floor. (Id.) While on the 78th floor, the South Tower was hit by the second airplane. (Id.) The force of the explosion threw Wein to the floor, causing three broken ribs and a punctured lung, a compound fracture to the ulna (the forearm bone of the elbow) of her right arm, and damaging her right hand and wrist. (Id. ¶ 15.) Rescue workers assisted Wein, who escaped the building before its collapse, and Wein was surgically treated for her injuries. (Id. ¶ 16.)

Plaintiff resumed her job duties on November 1, 2001, working part-time at home. (Pl. Ex. D at 367.) On February 22, 2002, Wein submitted a claim for long term disability benefits to Prudential. (Id. at 347-67.) Her submission included an Attending Physician Statement, dated February 11, 2002, from Andrew J. Weiland, M.D., an orthopedist and plastic surgeon. (Id. at 356.) Dr. Weiland stated that Plaintiff's injuries included a shattering of the bone in her right arm that connects her wrist to her elbow, damaging the "surrounding tissue and limiting motion in [her] wrist." (Id. at 354.) Dr. Weiland opined that Wein "tires easily" and is "unable to work at computer keyboard many hours straight" and recommended that she work "modified/flexible work hours." (Id.) Dr. Weiland also noted that Plaintiff "can work at home on her own schedule." (Id.)

Prudential initially approved Plaintiff's claim for long term partial disability benefits on March 7, 2002. (Id. at 69.) However, on August 27, 2002, Prudential informed Plaintiff that it determined that she was not entitled to total disability payments and that her benefits would be terminated effective September 1. (Id. at 74.) In support of its decision, Prudential referred to subsequent evaluations from Dr. Weiland, from which it concluded that Plaintiff had "basically regained full range of motion at the MP joints" and had been discharged from physical therapy.*fn2

(Id. at 75.) Specifically, Dr. Weiland's office treated Wein on May 14, June 11, and August 13, 2002. (Id. at 303-305.) On May 14, 2002, Dr. Weiland's office reported that Wein's fingers in her right hand had various degrees of limitations in their ranges of motion, with minimal pain. (Id. at 305.) On June 11, 2002, Dr. Weiland wrote that Wein's fingers in her right hand had full range of motion. (Id. at 304.) On August 13, 2002, Dr. Weiland's office wrote a letter stating that there was a final evaluation of Wein's fingers, which revealed full range of motion in the fingers of her right hand. (Id. at 303.)

Based on these reports, Prudential concluded that:

[T]here is no objective medical evidence in file demonstrating an impairment that would prevent you from performing the substantial and material duties of your occupation as a Assistant Director/Actuarial. While we acknowledge that you may be experiencing continued symptoms, the objective medical information does not support Total Disability from your own occupation. (Id.)

On August 29, 2002, Wein appealed Prudential's initial denial of benefits on the grounds that its denial improperly used the Plan's "total disability" definition despite the fact that her claim is based on a partial disability, and that she qualified as partially disabled under the Plan because her earnings were less than 80% of her pre-accident earnings and she was unable to perform her job duties full-time. (Id. at 274-76.) Responding to the medical evidence relied on by Prudential to deny her claim, Wein explained that while Dr. Weiland correctly assessed that she regained range of motion in her fingers, her partial disability claim alleged limitations to her wrist, whichprevented her from using a computer with her right hand on a full-time basis. (Id. at 276.)

To support her partial disability claim, Wein submitted reports from her treating orthopedist, Dr. Peter Stein, and two occupational and hand therapists. (Id. at 290-97.) On April 24, 2002, Dr. Stein wrote that he conducted a physical exam, which showed "[f]ull pronation and supination. 50 degrees of wrist flexion. 30 degrees of wrist extension. There is a small click elicited at the proximal ulnar stump with pronation and supination. When the patient attempts to make a fist her fourth and fifth fingers lack MP motion." (Id. at 290.) Dr. Stein assessed that Plaintiff "has a partial permanent disability that is quite significant" from the limitations caused by the compound fracture to Plaintiff's forearm, and opined that even assuming that Dr. Weiland's surgical procedures were successful, that Plaintiff "will always be significantly limited from this devastating accident. Permanent work modification will be needed. The patient will follow up with me as needed." (Id. at 290-91.) On August 6, 2002, after Dr. Weiland's surgical procedures, Dr. Stein opined that despite the fact that "[s]he has reached maximum medical improvement. . . . [, Wein] has a significant partial permanent disability, that with a reasonable degree of medical certainty will cause both long-term diminishing efforts daily to perform in the workplace as before, of 60% of the right upper extremity." (Id. at 292.)

Amy Barenholtz ("Barenholtz"), an occupational therapist and a hand therapist in the Hospital for Special Surgery, stated on July 11, 2002 that Plaintiff "continues to have significant limitations in range of motion and strength/power of her dominant extremity." She listed Plaintiff's wrist range of motion limitations, and assessed that:

Due to the bone deficiency of the ulna and impaired integrity of the wrist joint, the ability to withstand full forces is compromised. The resulting lack of motion limits her ability to weightbear through the joint without pain. Power grip is suboptimal due to the limitations in flexion of her ring and small fingers. In ...


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