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Mobley v. Continental Casualty Co.

August 11, 2005

JAMES MOBLEY, PLAINTIFF,
v.
CONTINENTAL CASUALTY CO., DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

In this action, plaintiff James Mobley seeks to recover benefits pursuant to the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. Presently before the Court is a motion for summary judgment filed by defendant Continental Casualty Co. ("Continental" or "defendant"). For the reasons that follow, the Court will deny defendant's motion without prejudice.

BACKGROUND*fn1

Continental has a group disability policy ("policy") that it issued to Columbia Hospital for Women Foundation, Inc. and Subsidiary Corporations ("Columbia Hospital"). Pursuant to this policy, Continental agreed to pay monthly benefits for Insured Employees (including plaintiff) who suffer a "Total Disability." See CCC000020. Total Disability is a term of art that has two different definitions in the policy, depending on the length of time that has passed since the injury or sickness that triggered the policy. After a 180-day Elimination Period has passed following the time of the injury or sickness, the policy calls for a twenty-four month Employee Occupation Period. See CCC000014. During this latter period of time, an Insured Employee is considered Totally Disabled when the employee, because of injury or sickness, is:

(1) continuously unable to perform the substantial and material duties of his regular occupation:

(2) under the regular care of a licensed physician other than himself; and

(3) not gainfully employed in any occupation for which he is or becomes qualified by education, training or experience.

CCC000025. After this twenty-four month Employee Occupation Period, the definition of Total Disability, and hence the right of the Insured Employee to receive benefits, changes to mean that an employee, because of injury or sickness, is:

(1) continuously unable to engage in any occupation for which he is or becomes qualified by education, training or experience; and

(2) under the regular care of a licensed physician other than himself. Id.

On or about March 12, 1998, plaintiff's employer, Columbia Hospital, filed an Initial Claim Report with Continental indicating that plaintiff had a herniated disc suffered during a fall at home and at work on August 15, 1997. See CCC 000142-145, March 6, 1998 Initial Claim Report. Plaintiff had worked as a Linen Distribution Aide for Columbia Hospital, which involved "major physical demands." Id. The Initial Claim Report included a statement by plaintiff's attending physician, Francyne O. Anderson, M.D. ("Dr. Anderson"), who had been treating plaintiff bimonthly since the injury in 1997. Id. According to Dr. Anderson, plaintiff had a "herniated disc," and complained of "pain, paraethesias, weakness of [right] leg and unable to walk." Id. Dr. Anderson rated plaintiff's physical impairment as a "Class 5", the highest available rating, which means "[s]evere limitation of functional capacity; [i]ncapable of minimal (sedentary) activity." Id. She restricted plaintiff to "no pushing, no pulling, lifting > 10 lbs," and stated he should avoid sitting or standing for more than 20 minutes. Finally, she indicated he could not go back to his manual labor occupation, and was not sure when plaintiff could return to trial employment. Id. She did state that she believed that plaintiff would need to be "retrained in an entire[ly] different occupation." Id.

Shortly after receiving the Initial Claim Report, Continental interviewed plaintiff on March 23, 1998. See CCC 000155-56, Claimant Interview notes. In that interview, plaintiff indicated he was in "continuous pain" and sometimes his left leg would "give out on him" while walking. Id. Furthermore, plaintiff said it would take him about "3 hours everyday to straighten up before he can walk upright." Id. Soon after the interview, Continental approved plaintiff's claim, and in doing so found that he was totally disabled as defined under the Employee Occupation Period. See CCC 000150-51, March 26, 1998 Letter. Continental determined that payments for the period of August 16, 1997 to February 11, 1998 satisfied the Elimination Period in the policy, and that subsequent benefits paid to plaintiff would be part of the twenty-four month Insured Employee Occupation Period, which would run until February 11, 2000. Id.

On or about September 29, 1999, Continental received another Physician's Statement from Dr. Anderson. See CCC000140-41. She repeated that plaintiff suffered a "herniated disc" complicated by "paresthesia [and] weakness of legs" and that his condition was chronic pain. Id.

She indicated that plaintiff was being treated with pain medication, physical therapy, muscle relaxants and epidural blocks. Id. Dr. Anderson's prognosis for plaintiff was "poor" indicating that "even minor activity exacerbat[ed] pain." Id. She listed plaintiff's physical limitations: "avoid pushing, pulling lifting 10lbs [;] avoid repetitive bending[; and] avoid prolonged sitting or standing." Id. Finally, Dr. Anderson noted that around the time of ...


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