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Gallagher v. Liberty Life Assurance Co. of Boston

September 28, 2007

KAREN GALLAGHER, PLAINTIFF,
v.
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON, DEFENDANT.



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

MEMORANDUM AND ORDER

Plaintiff Karen Gallagher ("Gallagher') brings this action under the Employee Retirement Income Security Act, 29 U.S.C. § 1132(a)(1)(B), to recover benefits under the GreenPoint Bank Long-Term Disability Plan (the "Plan"). The Plan is funded by a Group Disability Income Policy (the "Policy") issued by defendant Liberty Life Assurance Company of Boston ("Liberty"). Liberty has agreed to assume liability for any benefits awarded. Both Gallagher and Liberty move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure ("FRCP").*fn1

BACKGROUND

Gallagher worked at GreenPoint Bank ("GreenPoint") as a sales representative. Her duties included, but were not limited to, handling customer transactions at a teller window.

GreenPoint provided its employees, such as Gallagher, with short-term disability ("STD") and long-term disability ("LTD") benefits under the Policy. Pursuant to the Policy, a covered employee must meet minimum hourly requirements to be eligible for benefits, namely, 40 hours per week for LTD benefits and one hour per week for STD benefits. Moreover, for STD, "Disability" or "Disabled" under the Policy means the covered employee "as a result of Injury or Sickness, is unable to perform the Material and Substantial Duties of [her] Own Job." Similarly, for LTD, "Disability" or "Disabled" means the covered employee, "as a result of Injury or Sickness, is unable to perform the Material and Substantial Duties of [her] Own Occupation." The Policy also defines partial disability. Regarding LTD, "Partial Disability" or "Partially Disabled" means, among other things, the covered employee is able to "perform one or more, but not all, of the Material and Substantial Duties of [her] Own Occupation or Any Occupation" on a part-time basis as a result of sickness or injury. The phrase "Material and Substantial Duties," for LTD, means those "responsibilities that are normally required to perform the Covered Person's Own Occupation . . . and cannot be reasonably eliminated or modified."

"Own Occupation," for LTD, means the covered employee's occupation "as it is normally performed in the national economy."

In May 2001, Gallagher was diagnosed with multiple sclerosis ("MS"). On July 23, 2002 Dr. Roy M. Shanon diagnosed Gallagher with "[r]elapsing/remitting MS with possible exacerbation of symptoms characterized by the sensation of disequilibrium." Nevertheless, she continued to work full time until August 14, 2002. On that date, she stopped working and took a 12-week leave of absence under the federal Family and Medical Leave Act ("FMLA") to adopt a child.*fn2 Gallagher returned to work on a part-time basis on November 14, 2002, without any stated medical opinion or recommendation regarding her ability to work. She continued to work until January 23, 2003, when her MS symptoms led her to visit Dr. Alan M. Bigman. She reportedly was having vision problems and instability and difficulty with coordination. In a Restrictions Form, dated a February 11, 2003, Dr. Bigman indicated that he advised Gallagher to cease work as of January 23, 2003, and he described her restrictions and limitations as "unable to work at this time."

Thereafter, Liberty approved Gallagher for STD benefits from January 24 through July 31, 2003. In approving the STD benefits, Liberty characterized Gallagher's occupation as a teller, which it described as "LIGHT/MED" work.

On October 1, 2003, Liberty denied Gallagher LTD benefits, asserting that she lacked eligibility for those benefits at the time she became disabled, i.e., January 23, 2003. Specifically, Liberty determined that Gallagher's LTD coverage had terminated on December 31, 2002 and that she was not eligible for LTD benefits as of January 23, 2003 because she was not working 40 hours per week at that time.

By counsel's letter dated February 3, 2004, Gallagher filed an administrative appeal of the denial and requested that Liberty amend her disability onset date to August 15, 2002, given Liberty's determination that she was not eligible for LTD benefits after December 31, 2002. Gallagher submitted additional records to Liberty regarding her MS. These records included treatment notes from Dr. Marc L. Gordon, a neurologist, dated May 5, 2001, October 12, 2001, May 21, 2002, and November 19, 2002, documenting a period of relapse and remission of her MS symptoms. As of November 19, 2002, Dr. Gordon wrote that her MS symptoms had worsened in July 2002, that she suffered "horizontal diplopia" (i.e., double vision along the same horizontal plane) one week prior, and that she currently complains of unsteadiness when she walks. Similarly, as of July 23, 2002, Dr. Shanon described Gallagher's MS symptoms as "recurrent dizziness and numbness and paresthesias in the extremities" and he noted her complaint that in the past three weeks she had "the sensation of disequilibrium, especially when she walks."

In evaluating Gallagher's claim, Liberty considered a job description form, dated February 13, 2003, completed by a GreenPoint branch manager. The branch manager listed Gallagher's duties as "handling client transactions at window" for six hours and "daily teller and branch [illegible]" for one hour, and described the physical requirements as three hours sitting and five hours standing. The one hour disparity between the duties and physical requirements is not explained.

In considering the job description, Liberty asked GreenPoint whether Gallagher could use a stool to sit "as needed." In response, GreenPoint informed Liberty in September 2003 that it provided a built-in stool at Gallagher's work station. On that basis, Liberty concluded that Gallagher could sit as needed during the workday, leading Liberty to determine that her occupation was "sedentary."

Liberty sent the file to a neurologist, Dr. Joseph J. Jares III, for review. Dr. Jares concurred that the medical records of Gallagher's treating doctors supported a diagnosis of MS, but he opined that "there is no data submitted that would indicate an inability of Ms. Gallagher to perform full-time in a sedentary fashion," and that Gallagher "was not unable to work" between November 14, 2002 and December 31, 2002.

By letter dated April 9, 2004, Liberty again denied Gallagher's claim for LTD benefits. In denying the claim, Liberty conceded that Gallagher remained eligible for LTD benefits during her FMLA leave from August 15, 2002 to November 13, 2002, because the Policy provides that an employee's ...


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