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Kindig v. Anthem Life Insurance Co.

March 30, 2009

MARK KINDIG, PLAINTIFF
v.
ANTHEM LIFE INSURANCE COMPANY, DEFENDANT



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

This is an action to recover long-term disability insurance benefits, brought pursuant to the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. Plaintiff, who claims to be disabled due to hip pain, contends that Defendant's decision denying him disability insurance benefits was arbitrary and capricious. Now before the Court is Defendant's summary judgment motion [#9] and Plaintiff's cross-motion [#19] for the same relief. For the reasons that follow, Defendant's application is granted and Plaintiff's application is denied.

BACKGROUND

Unless otherwise noted, the following are the facts of this case, viewed in the light most favorable to Plaintiff. In or about November 2002, Plaintiff was hired as Chief Financial Officer by Bozzuto's, Inc., which owns a chain of supermarkets in the New England area. In connection with such employment, Plaintiff was covered by long-term disability insurance purchased from defendant Anthem Life Insurance Company ("Defendant"). The long-term disability policy states: "We [Anthem] have the discretionary authority to determine your eligibility for benefits and to construe the terms of the policy to make a benefits determination." (58).*fn1 The policy further states:

WHAT DOES DISABILITY MEAN?

Disability means that due to sickness or injury:

1. You are not able to perform some or all of the material and substantial duties of your regular occupation and you have at least a 20% loss in your pre-disability earnings.

OR

2. While you are not able to perform some or all of the material and substantial duties of your regular occupation, you are working in any occupation and have at least a 20% loss in your pre-disability earnings.

(44).

On May 21, 2004, Plaintiff had a surgical replacement of his left hip. On May 28, 2004, Plaintiff's employment with Brozzuto's ended. On July 31, 2004, Plaintiff applied for long-term disability benefits under the subject policy, claiming to be disabled due to pain in his left hip.

On September 7, 2004, in a telephone conversation with one of Defendant's employees, Plaintiff's wife stated that Plaintiff was able to drive a car, and that he was currently looking for work in the same field as before.

On October 7, 2004, Plaintiff's orthopedic surgeon, Robert Little, M.D. ("Little"), examined Plaintiff and wrote, in a letter to Plaintiff's primary-care physician, Robert C. Pietropaoli, M.D. ("Pietropaoli"), in relevant part as follows:

[Mr. Kindig] did well for the first month [after surgery] but when returning to a very aggressive rehabilitation program in the Rochester area he noticed some increasing difficulties. He now uses a cane. He states at time [sic] his leg will kind of give out. He has backed off on his exercises and has had some resolution of symptoms.

***

At this time, I believe that his symptom complex is secondary to possibly being a little over-aggressive in physical therapy. I would like to keep a close eye on his hip. He will back off on the PT but can maintain a protocol. I will plan to ...


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