The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Court Judge
MEMORANDUM DECISION and ORDER
This action was filed pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq. Generally, in his Second Amended Complaint, Ronald Maxwell ("Plaintiff") alleges that Metropolitan Life Insurance Company ("Defendant MetLife") and the Lockwood & Greene, Inc. Health and Benefit Plan ("Defendant Lockwood") denied Plaintiff benefits under a Long Term Disability Benefits Plan to which he was entitled under the Plan pursuant to 29 U.S.C. § 1132(a)(1)(B). (Dkt. No. 13 [Plf.'s Second Am. Compl.].)
Currentlypending before the Court are two motions: (1) a motion for summary judgment filed by Defendant MetLife and Defendant Lockwood (collectively "Defendants") pursuant to Fed. R. Civ. P. 56; and (2) Plaintiff's motion to strike the testimony of Dr. Richard M. Fiese, D.M.D. from the administrative record (specifically, AR 413-441) pursuant to Fed. R. Evid. 103(b). (Dkt. Nos. 39, 53.) For the reasons set forth below, Defendants' motion is denied; Plaintiff's motion to strike is denied as moot; and counsel are directed to, on or before September 15, 2009, contact the undersigned's courtroom deputy, Lori Welch, to schedule a prompt bench trial in this matter.
The material facts of this case are not in dispute.
Plaintiff worked for Lockwood & Greene, Inc. (hereinafter "Lockwood") for a number of years as an engineer (specifically a start-up manager). The job required Plaintiff to travel to various locations around the country for periods of time. Beginning in or around September 2001, Plaintiff was allowed to work from home (in Oswego, New York) until January 2002 following neck surgery that he underwent. Subsequently, and until his termination on May 2, 2003, Plaintiff returned home on a number of occasions for personal and/or medical reasons.
During the time of Plaintiff's employment with Lockwood, Lockwood had a Long Term Disability Plan ("Plan"), under which Plaintiff was covered. (AR 70.) The Plan states that an employee "will cease to be covered [under the Plan] on the earliest of the following dates" and lists "the date you are laid off" as one of those dates. (AR 31-32.) Thus, an employee who is not disabled until after the date on which that he or she is terminated is not eligible to recover benefits under the Plan. (Id.) Under the terms of the Plan, the term "disabled" or "disability" means that, due to sickness, . . . [a participant is] receiving Appropriate Care and Treatment from a Doctor on a continuing basis . . . and[,] after the elimination period, [the participant is] unable to earn more than 60% of [his] Indexed Predisability Earnings from any employer in [his] Local Economy at any gainful occupation for which [he is] reasonably qualified taking in to account [his] training, education, experience and Predisability Earnings. (AR 19.) The term "Appropriate Care and Treatment" means medical care and treatment that meet all of the following [criteria]:
1. it is received from a Doctor whose medical training and clinical experience are suitable for treating [the participant's Disability];
2. it is necessary to meet [the participant's] basic health needs and is of demonstrable medical value;
3. it is consistent in type, frequency and duration of treatment with relevant guidelines of national medical, research and health care coverage organizations and governmental agencies;
4. it is consistent with the diagnosis of [the participant's] condition; and
5. its purpose is maximizing [the participant's] medical improvement. (AR 20.) The "elimination period" is "90 days" of continuous Disability (followed by five years of continuous Disability). (AR 11.) The "elimination period" begins on the day [the participant] become[s] Disabled." (AR 18.) In addition, although the Plan is less than a model of clarity, it provides that the participant may not work more than 30 of the 90 days of the elimination period, without restarting the running of the elimination period.*fn1
B. Plaintiff's Pre-Cancer Medical History
Prior to undergoing testing and treatment for cancer in 2001, Plaintiff's medical history is best summarized as follows. In 1989, Plaintiff suffered a heart attack. (AR 121.) In 1999, Plaintiff was diagnosed with a C-5 root problem. (AR 113.) At some point at or around this time, Plaintiff had "a work up performed for chronic trauma related cervical spine disease." (AR 110.) Following this "work up," Plaintiff was recommended for spinal surgery by a spinal surgeon. (Id.) However, Plaintiff "felt the symptoms were not severe enough nor did he have enough time to consider surgery." (Id.) In addition, Plaintiff was involved in a "severe motor vehicle accident where he suffered a whiplash type injury to his neck." (Id.)
C. Plaintiff's Cancer Condition and Treatment
On August 8, 2001, Plaintiff was diagnosed with Squamas Cell Carcinoma of the tonsil. (AR 753.) In or around September 2001, he underwent radiation treatment for the Squamas Cell Carcinoma. (AR 474, 480.) At the time, Defendants knew of Plaintiff's condition and treatment. (AR 480.) On December 7, 2001, Plaintiff underwent post-radiation neck surgery (specifically a type 3 radical neck dissection) in an effort to cure neck pain stemming from his previous motor vehicle accident. (AR 110, 113, 119, 121.)*fn2
In December of 2002, Plaintiff was working in Arizona. (AR 461, 470.) On December 24, 2002, Plaintiff visited Dr. Richard Fiese (an oral and maxillofacial surgeon) in Oswego, New York, about a painful condition he was experiencing in which a portion of bone that had become exposed in the right part of his lower jaw following his radiation treatment. (AR 470, 474.) At the time, Defendants knew of Plaintiff's exposed bone in the right part of his lower jaw. (AR 480, 482.)*fn3
Dr. Fiese diagnosed the condition as Osteoradionecrosis, removed the bone, and recommended that Plaintiff begin hyperbaric oxygen ("HBO") therapy and consider surgery to combat the condition. (AR 470, 474.) Preparing to return to work in Arizona, Plaintiff told Dr. Fiese that he "between trimming off the dead bone and lots of vodka he will be fine" without the HBO therapy and surgery. (AR 461, 474.) However, roughly one week later, Plaintiff's wife contacted Dr. Fiese, and informed him that her husband would accept a referral for a follow-up regarding the HBO therapy and surgery in Arizona. (AR 470, 474-75.) As a result, on or about December 30, 2002, Dr. Fiese wrote Plaintiff a referral, providing him with a list of various treating physicians in Arizona. (AR 462, 470, 475.)
On January 23, 2003, Plaintiff flew from Arizona to Syracuse, New York, for a medical appointment with Dr. Fiese regarding his Osteoradionecrosis. (AR 201, 478.) On January 28, 2003, Plaintiff returned to Arizona and met with a doctor who had been recommended by Dr. Fiese, regarding HBO therapy. (AR 209, 211, 478.)
However, shortly thereafter, Lockwood informed Plaintiff that he was being relocated to Mississippi. (AR 478.) In February of 2003, Plaintiff was relocated to Mississippi. (AR 478-479.) In response, Plaintiff contacted Dr. Fiese to make arrangements to receive HBO therapy in either Mississippi or Central New York. (AR 478-479.)
On March 18, 2003, Plaintiff visited Dr. Fiese regarding treatment for his Osteoradionecrosis, and informed Dr. Fiese that he would like to commence HBO therapy. (AR 311, 462, 475, 479.) Dr. Fiese informed Plaintiff that he would contact the HBO therapy Unit at SUNY Health Center in order for Plaintiff to undergo a pre-therapy evaluation. (AR 475.) In addition, Dr. Fiese informed ...