The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.
MEMORANDUM, DECISION AND ORDER AFTER BENCH TRIAL
Plaintiff Thomas D. McCarthy ("McCarthy"), formerly an employee of USAir, seeks to recover disability benefits from defendant American International Group ("AIG"), USAir's insurer. Plaintiff alleges that in April 1995 he suffered a work-related accident that rendered him permanently and totally disabled. In May 1996, plaintiff submitted a benefits claim for "Accidental Permanent Total Disability" under AIG policy number PAI8043595 ("Policy"). AIG denied coverage, declining to find that plaintiff was permanently and totally disabled as defined by the Policy. Plaintiff sued for breach of contract. Following a non-jury trial on submission, this Court finds in favor of defendant AIG.
On June 30, 1998 plaintiff filed suit in New York Supreme Court, Queens County. On March 24, 1999, defendant removed the action to this Court on the basis of diversity jurisdiction under 28 U.S.C. § 1332. Defendant then moved for summary judgment on the grounds that: (1) McCarthy's injury was not covered by the Policy; and (2) McCarthy's notice of claim was untimely under the Policy. That motion was denied on both grounds.*fn1 In 2006, the parties filed omnibus cross-motions in limine. The district court (Friedman, J.) held, inter alia, that plaintiff's treating physician, Dr. Robert A. Duca, was the only witness permitted to testify as to whether plaintiff was permanently and totally disabled pursuant to Policy language.
In May 2008, Dr. Duca passed away before the commencement of trial. In response, the parties again filed omnibus cross-motions in limine. This Court held that: (1) Dr. Duca's records were the only evidence relevant to the determination of whether the April 1995 accident caused plaintiff's total and permanent disability; (2) a pre-existing condition that contributed to the disability did not necessarily preclude recovery; (3) despite the Court's necessary reliance upon Dr. Duca's records alone, questions of fact remained regarding causation necessitating a trial; and (4) plaintiff's request that the Court compel AIG to produce out-of-state, non-officer witnesses was denied. In a September 12, 2008 pre-trial teleconference, the parties agreed that the only issue in dispute was whether the April 1995 injury caused the plaintiff's total and permanent disability as defined by the Policy, and that Dr. Duca's medical records were the only evidence relevant to that determination. As such, plaintiff withdrew his request for a jury trial.
The parties consented to the non-jury trial of this action without the presentation of live testimony on a record consisting of written trial submissions, the stipulated facts contained in the joint pre-trial order, and certain additional evidentiary exhibits. This constitutes the Court's decision after trial.
Upon due consideration of the developed factual record, including examination of exhibits presented upon submission, this Court sets forth the following factual findings based on the credible evidence presented at trial:
1. USAir employed plaintiff as a utility man in its maintenance department at LaGuardia Airport from November 14, 1988 to April 17, 1995. Plaintiff was responsible for supervising cleaning activity for all arriving and departing flights.
2. On August 29, 1991, while working at LaGuardia, plaintiff tripped on a curb and tore the cartilage in his left knee.
3. While awaiting surgical approval, plaintiff developed a "stilted gait," which caused severe lower back pain.
4. In April 1992, plaintiff underwent arthroscopic surgery on his left knee, during which Dr. Paul Yerys repaired a torn medial meniscus.
5. Upon returning to work, plaintiff continued to suffer from severe lower back pain. On August 31, 1992, Dr. John Nicoletti examined plaintiff and noted that "[t]here is no doubt that he has a chronic low back syndrome . . . ." X-rays taken on November 9, 1992 showed "degenerative changes of the lumbar vertebral bodies." An MRI performed on December 9, 1992 revealed "degenerative change at multiple levels associated with mildly bulging discs . . . ."
6. Between May 1992 and April 1995, plaintiff missed approximately sixty-five days of work due to lower back pain.
7. In December 1992, plaintiff subscribed to an Accidental Death & Dismemberment Policy issued by defendant, which became effective on August 1, 1993. The Policy provided total disability benefits and defined eligibility for such benefits as follows:
When, within one year after the date of the accident, the insured's injury results in continuous total disability lasting at least 12 consecutive months and at the end of that period the insured is judged by his or her doctor to have a permanent and total disability, ...