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Frank Burgio v. the Prudential Insurance Co. of America

September 26, 2011


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


Plaintiff Frank Burgio ("Plaintiff") claims that Defendant Prudential Insurance Company of America ("Prudential") improperly terminated his long-term disability benefits. Plaintiff sued Prudential under the Employee Retirement Income Security Act ("ERISA"), and both parties have cross-moved for summary judgment. For the following reasons, Plaintiff's motion is DENIED and Prudential's motion is GRANTED.


Until 1993, Plaintiff was a Prudential sales representative, or "District Agent," whose duties included selling insurance policies and servicing Prudential policyholders. (Administrative Record, Prudential Ex. A (hereinafter "R.") at PRU1567-68, Job Description.) According to the District Agent job description, "[i]n order to carry out the essential functions of the job," the employee "[m]ust be capable of providing service to policyholders at their homes on demand. This will include traveling to and into homes for such purposes . . . ." (Id. at PRU1568.)

Plaintiff stopped working on May 3, 1993 due to "an unstable left knee." (R. at PRU0279-80, Disability Benefits Claim Form.) Plaintiff qualified for short-term disability payments, (R. at PRU285-86, Notice of Employee Disability, Duration of Benefits), and he was later approved for long-term disability ("LTD") under Prudential's Welfare Benefits Plan (the "Plan") in May 1994 (R. at PRU1384, Prudential May 18, 1994 Approval Ltr. to Plaintiff). Under the Plan, Prudential employees who exhaust their short-term disability payments and "are totally disabled from performing any and every duty pertaining to [their] occupation as a District Agent" are eligible for LTD. (R. at PRU1230, Plan Documents.) Plaintiff's LTD was based on an osteoarthritic condition in his left knee that caused him "difficulty walking, driving a car." (R. at PRU0197, Disability Claim.) There is no question that Plaintiff has had numerous surgeries and attempts at physical therapy over the years. (See, e.g., R. at PRU1295, Prudential Feb. 5, 2002 Ltr. to Dr. Adler.)

To maintain his LTD benefits, Plaintiff was required periodically to submit medical evidence of his total disability, including by completing questionnaires describing his daily activities. In 2001, Plaintiff completed one such questionnaire and indicated that he attends sporting activities "with help or assistance" and that he rides in a car several times daily. (R. at PRU0044, June 25, 2001 Daily Activity Questionnaire.) In January 2003, Plaintiff indicated that he drives "usually daily" but that long car trips "are a problem." (R. at PRU0299, January 13, 2003 Daily Activity Questionnaire.)

Prudential also required Plaintiff to submit to occasional medical exams. In February 2002, Plaintiff was examined by Dr. Steven Adler. Dr. Adler concluded that:

The claimant should be able to perform his basic activities of daily living. Limitations would include excessive walking, excessive stair walking, and avoiding assuming any one posture or position for long periods of time. The question was asked whether the claimant would be harmed if he returned to his own occupation. It is likely there would be no permanent changes in the claimant's musculoskeletal integrity but pain would be a significant factor in his probable inability to return to work. He would be best suited for more sedentary work.

(R. at PRU0853, Adler Report.)

Prudential also used private investigators to keep

tabs on Plaintiff's medical condition. In December 2001, investigators researched Plaintiff and concluded that although his lifestyle at the time was "fairly" or "moderately" active, surveillance might be useful in the warmer months when he might be more active. They recommended tabling their investigation until then. (See R. at PRU1367-68, PRU1387, Plan Committee File.) In May and June of 2003, a different group of investigators videotaped Plaintiff walking without a cane, driving, and participating in little league practice. On this video, Plaintiff is seen carrying a large equipment bag, walking without assistance, and pitching to little leaguers. (See Prudential Exs. H and I.) For most of the two-hour practice, Plaintiff is walking and standing without assistance, but he occasionally appears to be resting his weight on a chain link fence during the half-innings when his team is at bat. Throughout the surveillance video, Plaintiff is occasionally observed with a slight limp.

In October 2003, after it had received the surveillance video, Prudential hired Dr. Craig Rosenberg to conduct an independent medical review of Plaintiff's case. Dr. Rosenberg examined Plaintiff and reviewed his medical file, and in an October 14, 2003 report (the "Initial Rosenberg Report"), he concluded that Plaintiff was disabled. Specifically, Dr. Rosenberg explained:

[Plaintiff's] limitations and restrictions include occasional walking, occasional standing, no crouching, occasional stair climbing, occasional driving (with an automatic transmission) and lifting is limited to no more than 20 lbs. on occasion. He has no limitations with sitting and he is capable of working an 8-hour workday.

(R. at PRU0358-59, Initial Rosenberg Report.) Dr. Rosenberg also noted that Plaintiff told him that the District Agent position requires "constant travel by foot and/or by car" and that Plaintiff "denies participating in any of his children's organized sporting activities" but states that he "is occasionally able to play catch with his son." (Id. at PRU350.)

When it received the Initial Rosenberg Report, Prudential wrote to Dr. Rosenberg thanking him for his evaluation but noting that "in your report, you do not indicate that you have reviewed the surveillance report or DVD we provided along with [Plaintiff's] medical records, which showed [Plaintiff] being physically active and contradicts his stated activities." (R. at PRU1306, Prudential Nov. 10, 2003 Ltr. to Dr. Rosenberg.) The letter describes the surveillance videos and clarifies a District Agent's official duties: "Please be advised that [Plaintiff's] job is classified as light duty and requires occasional walking, occasional standing, occasional sitting, and he would not have to lift any more than 10 pounds, which is the approximate weight of the lap top computer he would need to use." (Id.) The letter concluded by asking Dr. Rosenberg to review the surveillance and provide an addendum report. (Id.)

Dr. Rosenberg submitted an addendum report (the "Addendum Rosenberg Report") stating that he had observed the video of Plaintiff pitching during little league practice. Dr. Rosenberg said that he had observed Plaintiff "lifting and carrying a large equipment bag and standing in an unrestricted fashion. He remained standing throughout the video. He was not wearing any supportive devices and he did not use an assistive device during the surveillance." (R. at PRU0676, Addendum Rosenberg Report.) Dr. Rosenberg explained that during his physical examination of Plaintiff,

[Plaintiff] had told me that he was unable to participate in any of his children's organized sporting activities and that he only occasionally was able to play catch with his son as a result of his disabilities. This is clearly contradicted by the surveillance report and video. In addition, [Plaintiff] came to the examination ambulating with a straight cane and he advised me that he requires a straight cane for ambulatory ...

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