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overturning Unum's denial of benefits, despite Unum's argument that the claimant was not disabled because she worked a full day the day she left her job
Summary of this case from Radford Trust v. First Unum Life Insurance CompanyOpinion
No. 96 Civ. 3828 (LTS) (HPB)
March 6, 2002
Evan L. Gordon, Esq., New York, New York, for Defendant
Koob Magoolaghan, By: Elizabeth Koob, Esq., New York, New York, for Plaintiff
OPINION AND ORDER
This case arises out of the decision of Unum Life Insurance Life Insurance Company ("UNUM") to deny disability benefits to plaintiff Marianne Locher ("Plaintiff") pursuant to an insurance policy providing benefits under a long-term disability plan maintained by Plaintiff's former employer, Katten, Muchin Zavis ("KMZ'). Plaintiff challenges UNUM's denial of benefits pursuant to 29 U.S.C. § 1132(a)(1)(B); she also asserts claims pursuant to 29 U.S.C. § 1132(a)(3) and 29 U.S.C. § 1132(e) for costs. attorneys fees, and prejudgment interest. The Court has jurisdiction of this action pursuant to 29 U.S.C. § 1132(e) and 28 U.S.C. § 1331, 2201 and 2202.
The complaint cites §§ 1132(a)(1)(B),(a)(3) and "(C)." The citation to subsection "(C)" appears to be a typographical error, since 29 U.S.C. § 1132(a)(3) does not contain a subsection "(C)" and there are no allegations in the complaint pertinent to section 1132(c) of the statute. See 29 U.S.C.A. § 1132 (West 2001).
Prior to the instant application, both parties had interposed summary judgment motions, which were denied. In denying the motions, the Court (Jones, J.) determined, inter alia that UNUM's denial of benefits is subject to de novo review and that there were material questions of fact concerning whether Locher was disabled within the meaning of the disability plan as of the relevant date. Locher v. UNUM, No. 96 Civ. 3828, 1999 WL 73142820 (S.D.N Y Sept. 20. 1999).
Consequently, a three-day bench trial was held on this issue. For the reasons stated below, the Court finds that Plaintiff was disabled within the meaning of the disability plan as of the time she ceased working for KMZ and is, accordingly, entitled to receive disability benefits. The following constitutes the Court's findings of fact and conclusions of law.
FACTS
After considering carefully all of the evidence, observing the demeanor of the witnesses and considering the plausibility and credibility of the testimony, the Court makes the following findings of fact.
KMZ provided a long term disability plan for its employees through an insurance policy which was issued by UNUM (the "Policy"). Stipulated Fact No. 2. Plaintiff was a participant in KMZ's employee benefit plan within the meaning of ERISA, 29 U.S.C.A. § 1002(7) (West 2001). Stipulated Fact No. 3. The Policy is an employee benefit plan within the meaning of ERISA. 29 U.S.C.A. § 1002(3) (West 2001). Stipulated Fact No. 4. Under the Policy. UNUM is responsible for payment of benefits to covered employees of KMZ as set forth in the Policy. Stipulated Fact No. 5.
The Policy contains. among other things, the following provisions:
Description of Eligible Classes * * *
Class 2
All Staff Members of the Policyholder who are Actively at Work.
Plaintiff was employed by KMZ as a legal secretary and thus was a Class 2 employee under the Policy.
* * *
Actively at Work means working in the service or interest of the Policyholder or its clients at one of the offices of the Policyholder or at some other location.
Joint Exhibit A: Policy. Section 1.
`Active employment' means the employee must be working:
1. for the employer on a permanent full-time basis and paid regular earnings;Id. Policy, Section II.
`Sickness' means illness or disease. * * * The disability must begin while the Employee is insured under this policy.Id.
`Disability' and `disabled' mean that because of injury or sickness the insured cannot perform each of the material duties of his regular occupation.Id.
Disability
When the Company receives proof that an insured is disabled due to sickness or injury and requires the regular attendance of a physician, the Company will pay the insured a monthly benefit after the end of the elimination period. The benefit will be paid for the period of disability if the insured gives to the Company proof of continued:
UNUM is referred to as the "Company" in the Policy.
1. disability; and
2. regular attendance of a physician.
Id. Policy. Section IV.
Under the Policy, a Class 2 employee must be actively working at the onset of the disability to be eligible for disability benefits. An employee's insurance terminates on the date employment terminates. Stipulated Fact No. 2; Joint Exhibit A.
Accordingly, under the foregoing provisions, the Policy provides disability benefits to each covered person, who at the time such person becomes disabled, i.e., when she cannot perform each of the material duties of her regular occupation due to sickness or injury and requires the regular attendance of a physician, is employed full-time at KMZ.
Plaintiff was employed full-time as a legal secretary at KMZ from March 9, 1992 through April 8, 1993. Plaintiff became insured under the Policy as of April 1, 1992.
In November 1990, prior to Plaintiff's employment at KMZ, her regular physician. Dr. David Zimmerman. had diagnosed Plaintiff as suffering from chronic fatigue syndrome (hereinafter referred to as "CFS"). Joint Exhibit B, at 166-68. Plaintiff did not disclose her condition to KMZ at the time she commenced employment with KMZ because she was afraid that the law firm would not hire her if it was known that she had CFS. Tr. at 81.
Plaintiff became Dr. Zimmerman's patient in 1986 and has seen him on a regular basis since that time. Id. at 98.
In or about September, 1992, Plaintiff's health began to decline. She began walking up exhausted. Id. at 87-88. She began taking a taxi to work because it was energy-consuming just to walk to the corner for the bus.Id. As her symptoms became more severe, Plaintiff attempted to preserve her energy for work. Id. at 413-415. She stopped most activities outside of work. Id. at 438.
On January 29, 1993, Plaintiff saw Dr. Zimmerman and discussed with him her symptoms and difficulties with day-to-day activities. Id. at 146. Dr. Zimmerman advised Plaintiff to reduce her work schedule. Id. at 121-22. In making his recommendation, Dr. Zimmerman relied on the information Plaintiff conveyed to him and determined based upon his medical experience that her statements were accurate. Id. at 162. Dr. Zimmerman did not specify the number of hours Plaintiff should cut back.Id. at 122. Dr. Zimmerman testified that he did not recall giving advice to Plaintiff concerning reducing her hours, but indicated that his general practice with his patients involved discussing a patient's condition and then coming "to a conclusion based on what the patient tells me and if it rings true." Id. at 163. He did not prescribe medication because he did not know of any effective treatment for CFS.Id. at 120.
Dr. Zimmerman considered, but subsequently ruled out, the possibility that Plaintiff's symptoms were psychosomatic. Joint Exhibit B. at 38, 166-68; Tr. at 95, 103-10, 122. Dr. Zimmerman also performed various laboratory tests and eliminated other causes of Plaintiff's symptoms. Tr. at 110-115. In making the diagnosis of CFS. he followed guidelines promulgated by the College of Physicians. Id. at 115. Dr. Zimmerman did not believe Plaintiff was a malingerer. Id. at 122.
According to KMZ's employee manual, an employee who wishes to work part-time rather than full-time, whether for personal reasons or any other reason, must submit a "written request to their coordinator." Joint Exhibit E, Section at 10.1-4. By a memorandum dated February 5, 1993, (Joint Exhibit B. at 210). Plaintiff notified John Villa, administrator for KMZ's east coast offices (Tr. at 24). that "upon the advice of my personal physician, I hereby request that my employee classification be changed from Full-time to Part-time. My doctor has strongly advised me to presently limit my work schedule to a 4 day week." Joint Exhibit B, at 210.
In response to Plaintiff's February 5 memorandum, Mr. Villa sent a memorandum to Plaintiff, dated February 17, 1993 (id. at 112), stating he would require a physician's statement in order to change Plaintiff's employment classification. Dr. Zimmerman signed such a letter, dated March 3, 1993. Id. at 152. Plaintiff testified that the letter had originally mentioned chronic fatigue syndrome, but that she had requested that the letter be changed, not only to delete that reference, but to state that Dr. Zimmerman had advised her to reduce her work schedule to 30 hours a week over a four-day period. Tr. at 425, 427. Plaintiff further testified that she and Dr. Zimmerman had never discussed the idea of a four-day week, but that this was the idea of Sylvia Bolatti, the attorney for whom she worked, and Barbara Oxnam, KMZ's office manager.Id. at 427. Plaintiff never gave the March 3, 1993 letter to her employer. Id. at 441. Plaintiff testified that she showed the note to Mr. Villa at a meeting in late March, but that she did not give it to him because she did not want the note in her file. Id. Mr. Villa did not recall seeing the note. Id. at 40.
During this period. Ms. Locher was verbally counseled, in "numerous discussions," by her immediate supervisors for excessive unscheduled absences and medical appointments scheduled during the work day. Joint Exhibit B, at 110. The problems were also noted by her supervisor in her 1993 annual performance evaluation, which was in most respects favorable. Plaintiff's Exhibit 11.
Plaintiff received three performance evaluations while at KMZ: two semi-annual evaluations authored by different supervisors in August, 1992 and one "annual" evaluation written at some point in early 1993. Plaintiff's Exh. 11; Tr. at 45-48.
The 1993 evaluation reflects a decline in Plaintiff's performance in several areas as compared to the half-year evaluations written in August, 1992. Under the category of "initiative." the 1993 evaluation indicated that Plaintiff "appears to limit her work strictly to her responsibilities." Plaintiff's Exh. 11. Under the category of "neatness and organization of work area." her supervisor indicated "needs improvement." Id. With respect to absences and tardiness, and reliability and conscientiousness, her supervisor indicated "needs improvement."Id.; Tr. at 537-38.
On March 24, 1993, Plaintiff received a memorandum reprimanding her for "excessive" unscheduled absences and frequent mid-day absences from the office. Joint Exhibit B, at 110-111. The memorandum states that "[i]n addition to full day absences, you have had a large number of medical appointments for which you have had to leave in the middle of the day."Id. The memorandum also states that Plaintiff had been absent several Fridays and Mondays since her February 5, 1993 memorandum requesting part-time work. It further states, "in fact you worked only two complete weeks since then." Id. at 111. KMZ warned Plaintiff that continued unscheduled absences or non-compliance with scheduled work hours would result in disciplinary action. Plaintiff testified that approximately two of the absences were due to dental appointments and that she did not come to work "for a couple of days" because she was ill. Tr. at 433.
Plaintiff resigned her position with KMZ on March 29, 1993, effective April 8, 1993. Stipulated Fact No. 9. On or about July 28, 1993, Plaintiff filed an application for long-term disability benefits with UNUM, asserting that she had been unable to work at KMZ after April 8, 1993 because of total disability due to CFS. Joint Exhibit A, at 204-206.
Plaintiff did not inform KMZ of her CFS condition at the time she left the firm. In a letter dated September 19, 1993, contained in the administrative record below and addressed "to whom it may concern." Plaintiff wrote, "I have always been an extremely private individual. I did not wish to discuss my illness with my co-workers. When the office manager, Barbara Oxnam asked my reason for resigning, I simply replied, `It's time to move on' instead of `I am ill.'" Joint Exhibit B, at 182-183. Plaintiff testified that she misrepresented to her employer her reasons for leaving because she did not want the office to know she was leaving because she was ill. Tr. at 514. Plaintiff testified credibly that she in fact left her job "because my symptoms had gotten to the point where . . . I felt like I was totally destroying my health, and I . . . wasn't able to. to do the job. Id. at 445.
After Plaintiff left KMZ, she obtained employment as a temporary worker. The records of the temporary agency reflect that Plaintiff worked 14 days (four to seven hours per day) between April 16, 1993 and June 7, 1993 at various firms as a temporary employee, including five consecutive work days from May 4, 1993 through May 10, 1993. Joint Exhibit H; Tr. at 497. The temporary jobs involved some typing but, Plaintiff testified that in many instances the temporary work simply involved being present at the work station in case she was needed. Id. at 448. Plaintiff also testified that, on some occasions, she turned down jobs because she felt that she was unable to perform satisfactorily. Id. at 450, 479. Plaintiff ceased to seek temporary employment in June 1993.
She thereafter consulted Dr. Susan Levine. Joint Exhibit A, 026-027. Dr. Levine performed a "a lengthy evaluation" of Plaintiff during a June 8, 1993 visit and reviewed Dr. Zimmerman's records. Tr. at 459. Dr. Levine determined that Plaintiff was totally disabled due to her CFS condition and advised bed rest. Based upon her examination and review of records and Plaintiff's reported history, Dr. Levine also concluded that Ms. Locher had been disabled in April of 1993. Joint Exhibit B, at 26-27. Dr. Levine did not testify at trial.
Dr. Richard Podell, an expert qualified in internal medicine and family practice with a subspecialty in CFS (Tr. at 214) saw Plaintiff in February, 2000 and confirmed Dr. Zimmerman and Dr. Levine's assessment of Plaintiff's disability in April of 1993. Id. at 230. Dr. Podell also testified that Plaintiff currently met the full criteria for disability.Id. at 255-256.
Dr. Podell is a clinical professor at Robert Wood Johnson Medical School. Id. 182. He was appointed by former New Jersey Governor Whitman to a joint committee of the state Department of Health and the New Jersey Academy of Medicine that is writing a monograph for doctors on how to diagnose and treat CFS. Tr. at 176. Dr. Podell is the medical director and principal investigator of East Coast Clinical Research, whose main focus is two FDA-approved studies on a drug for CFS. Id. at 182-83.
Dr. Podell knows that Dr. Levine has been disciplined by New York State for poor record-keeping (id. 278-79), and testified nonetheless that Dr. Levine is "one of the leading people in the country" with respect to CFS. adding, "I don't think there's anyone else in New York City who would rank higher than she does." Id. at 275. He noted that Dr. Levine was one of two out-of-state physicians chosen for New Jersey's special CFS task force and that she was asked to write the most important chapter of the book to be written for physicians, on how to treat CFS. Id. at 279.
Dr. Levine's license to practice was suspended from September 28, 1999, with the suspension stayed, because she admitted guilt to ten specifications of misconduct, and acknowledged that she could not successfully defend against several other charges including failure to take adequate histories. failure to perform adequate physical examinations. and failure to maintain records which accurately reflect the care and treatment of patients. She was ordered to have her practice overseen by a monitor who was board certified in internal medicine. Defendant's Exhibit A.
Dr. Podell found no basis in the record to question the credibility of Dr. Zimmerman's September 1993 letter attesting to Plaintiff's disability in March and July 1993. Id. at 249. He found Dr. Zimmerman's office notes typical of other primary physicians' notes, using a style of record keeping characteristic of doctors of his generation, and testified that it is very typical that records do not document all information exchanged between doctor and patient. Id. at 240, 243, 248. He found that the records showed that Plaintiff's condition as reported in various documents did meet the diagnostic criteria, and that Dr. Zimmerman had followed accepted practices in excluding other possible causes of her symptoms. Id. at 230-39.
Dr. Podell also found credible for diagnostic purposes Plaintiff's account of the progress of her illness. Id. at 252, 271. He testified that it is rare for a patient with CFS to definitively point to a date that they became disabled. Id. at 259. He explained that, "what we typically see is they are getting less and less able to perform, they are feeling subjectively worse and worse. they are able to do less and less at home, they start maybe coming in late or they are not getting the work done. . . . And that's an ongoing process and at some point you call it quits . . . You are disabled normally for some period of time before you actually say OK I give up." Id. at 259-60. He found Plaintiff's post-disability attempts at part-time work compatible with the pattern typical of CFS patients, who test themselves over a period of time by attempting to work part-time. Id. at 262.
Dr. Podell found that Dr. Levine and Dr. Zimmerman's reports supported each other and that either one of them provided sufficient medical proof of disability. Id. at 275.
Dr. Podell testified that it was appropriate for Dr. Levine to recommend that Plaintiff stop working even on a part-time basis. Id. at 284-85. He was not troubled by Dr. Levine's attesting to Ms. Locher's disability' two months prior to her initial examination, finding the examination "very, very close to the contemporary time and [it is] perfectly appropriate to have an easily reconstructed pattern going back two months. That would certainly be a better opportunity than we often have." Id. at 287.
Subsequent to her first visit with Dr. Levine, Plaintiff filed an application for Social Security benefits. Joint Exhibit B, at 81. The Social Security Administrative Law Judge ("ALJ") found, in a decision dated January 31, 1995, that Plaintiff was disabled as of April 8, 1993.Id. at 81-84. The ALJ held that Plaintiff's testimony concerning her disability was "credible and supported by the evidence regarding the impairments alleged" Id. at 91.
On August 30, 1993, UNUM denied Plaintiff's claim for long-term disability benefits under the policy. Id. at 197-198. UNUM based its denial on the fact that Plaintiff had continued to work full-time up until the date of her resignation and her insurance terminated on that date. UNUM informed Plaintiff of the appeal process at that time and she was invited to submit additional information. Id.
After UNUM notified Plaintiff of its determination. Plaintiff prepared a letter, dated September 1, 1993, for Dr. Zimmerman's signature in connection with her appeal of UNUM's denial of her claim. Joint Exhibit A, at 184-186; Tr. at 142; Joint Exhibit J, at 27-29 (Zimmernian Deposition Transcript). Dr. Zimmerman testified that he assumed that the contents of the letter were accurate based upon Plaintiff's representations. Joint Exhibit J, at 27-29. A Case History also was submitted to UNUM at that time. Dr. Zimmerman testified that he did not recall preparing the Case History and that Plaintiff had prepared portions of it. Tr. at 142.
UNUM forwarded Plaintiff's file to its Quality Review Section, which also requested Dr. Zimmerman's office notes and test results. Joint Exhibit B, at 174.
Dr. John W. Dodge assessed Plaintiff's appeal of the denial of her claim on behalf of UNUM to determine whether she was disabled within the meaning of the Policy. Tr. at 322. Dr. Dodge is board certified in internal medicine. Dr. Dodge has not treated or diagnosed patients with CFS. Joint Exhibit 1, at 10 (Dodge Deposition Transcript). Dr. Dodge reviewed Plaintiff's claim file but did not personally examine Plaintiff.
Dr. Dodge testified that he has expertise in chronic fatigue syndrome.Id. at 18. He testified that UNUM sees a fair number of claims based on CFS; that almost all of those claims end up being referred for medical evaluations; and that all of the doctors are expected to stay current on the literature. Id. at 19. He testified that he attended CFS presentations at the American Academy of Insurance Medicine's annual meetings and that within UNUM there have been various presentations given by medical directors on CFS. Id. at 21. Dr. Dodge has reviewed approximately 100 to 200 CFS cases, first at his former place of employment, Connecticut Mutual Life Insurance Company, and later at UNUM. Tr. at 319.
Dr. Dodge explained that UNUM does not maintain guidelines concerning case evaluations because each case is evaluated on its own merits and the analysis depends upon the facts of each individual case. Id. at 320.
Dr. Dodge's written assessment of the claim (Joint Exhibit B, at 10-12) and his testimony at trial addressed whether Plaintiff was able to work at the time she resigned from KMZ. Id. at 346. He noted inconsistencies between Dr. Zimmerman's office notes and the documents created in September 1993. Id. at 328-333.
Dr. Dodge concluded that the medical opinion Plaintiff presented to UNUM in support of her claim was not credible because the Case History submitted in September, 1993 was inconsistent with the contemporaneous documents generated by Dr. Zimmerman. Id. at 335, 336, 337. Further, he concluded that Dr. Zimmerman's contemporaneous notes did not support a claim for disability within the meaning of the Policy. He also concluded that those notes were inconsistent with the documents from KMZ, including the correspondence between Plaintiff and KMZ, attendance logs, and the recent performance reviews. He therefore concluded that the contemporaneous medical evidence did not support Plaintiff's claim that she was unable to perform her duties within the meaning of the policy as of April 8, 1993. UNUM affirmed the denial of Plaintiff's claim, based on Dr. Dodge's assessment.
Acknowledging that his assessment differed from those of Dr. Levine, Dr. Zimmerman and the ALJ, Dr. Dodge testified that he discounted those assessments because he understood that, when rendering their opinions and decisions, they had not had the benefit of reviewing portions of the medical and employment records that existed during the last two months of Plaintiff's employment with KMZ. Tr. at 324, 325, 343, 348-350. In this regard, Dr. Dodge believed that Dr. Levine and the ALJ did not have all of the medical information generated by Dr. Zimmerman and did not have attendance logs or performance reviews. Similarly, Dr. Dodge believed that Dr. Zimmerman did not have knowledge of or the ability to review Plaintiff's employment records, including her 1993 performance review. There was no trial testimony as to whether those professionals had reviewed the records cited by Dr. Dodge.
DISCUSSION
Plaintiff's Claim
The denial of benefits to Plaintiff under the Policy is reviewed de novo. See Locher v. Unum Life Insurance Co., 126 F. Supp.2d 769 (S.D.N.Y. 2001). Plaintiff bears the burden of proving her entitlement to a disability benefit. Abnathya v. Hoffman-La Roche, Inc., 2 F.3d 40, 46 (3d Cir. 1993); George v. First Unum Life Insurance Company, No. 93 Civ. 2916, 1996 WL 701018 at *2 (S.D.N.Y. Dec. 5, 1996). Under the terms of the Policy, an insured, to recover benefits, must submit I)roof that, as of a date the insured is covered under the policy, and that the insured is disabled, i.e., cannot perform each of the material duties of her regular occupation due to sickness or injury, and is under the regular attendance of a physician. See Joint Exhibit A. The issue before the Court is whether Plaintiff was disabled within the meaning of the Policy as of the last day of her employment. Upon consideration of the evidence, the Court finds that Plaintiff has demonstrated, by a preponderance of the evidence, that she was disabled within the meaning of the Policy as of April 8, 1993.
Dr. Zimmerman has been Plaintiff's physician since 1986. He diagnosed Plaintiff with CFS in 1990. The tests performed by Dr. Zimmerman and his clinical observations of Plaintiff are consistent with the standard diagnostic criteria for finding CFS. Dr. Zimmerman also testified that he advised Plaintiff to stop working prior to April 8, 1993, the date of her resignation. Tr. 131. Dr. Zimmerman explained credibly that he did not keep regular office notes and that he affirmatively adopted Plaintiff's statements in connection with her disability application. Moreover, the statements in her case history submitted in support of her claim appeal were consistent with his diagnosis.
Dr. Podell confirmed Dr. Zimmerman's methodology and found consistent Plaintiff's self-reporting of the symptoms and progress of her condition. Based upon his review of the record, he concluded that Plaintiff was disabled.
The claim record includes reports prepared by Dr. Susan Levine. Dr. Levine's reports are consistent with the diagnosis of disability. Dr. Podell testified that Dr. Levine is a recognized expert and continues to participate in CFS-related professional activities.
Given the disciplinary proceedings against Dr. Levine, the Court accords less weight to the evidence derived from Dr. Levine's reports than it accords to the evidence proffered by Dr. Zimmerman and Dr. Podell. Dr. Levine's reports and conclusions are, however, consistent with the assessments of the other two examining physicians and Plaintiff's own credible testimony.
Plaintiff testified credibly that, as of the date she was last covered under the Policy. she was unable to perform the material duties of her regular occupation. The Court finds that Plaintiff gave a credible account of the progress of her condition that is consistent with the claims record and the medical testimony proffered at trial. The record of absences from work and medical consultations, in addition to evidence proffered by Doctors Zimmerman and Podell, is also consistent with her account.
Plaintiff's job as a legal secretary required her to perform the duties of a legal secretary on a prompt and reliable basis with limited vacation and sick leave. An essential element of her job was the ability to perform her duties reliably and consistently. Plaintiff received high marks in her job performance evaluations, but her history of absences and her testimony, which the Court finds credible, demonstrate that Plaintiff was not able to perform her duties on a sustained basis.
The Court also finds credible Plaintiff's explanation of her failure to inform her employer of the nature of her condition. Her testimony concerning her subjective mental state and fear of embarrassment is not inconsistent with the evidence as to the nature and severity of her medical condition at the time she terminated her employment.
The limited temporary assignments that Plaintiff obtained subsequent to leaving KMZ are not inconsistent with the finding that Plaintiff was disabled as of April 8, 1993. The irregular nature of her post-KMZ employment does not indicate that she was able to perform consistently the duties of a full-time legal secretary.
Dr. Dodge disagreed with the documentary record and disagreed with diagnosis of Doctors Zimmerman and Podell. His determination, however, was made without the benefit of treating Plaintiff. He never personally examined Plaintiff and, indeed, Dr. Dodge had never examined patients for CFS.
The Policy defines disability as inability to perform each of the material requirements of the position. See Joint Exhibit A. In addition, the Policy provides that, in order to be eligible for coverage under the Policy, an employee must be "Actively at Work." An "employee" is defined as a person in active employment with the employer. Joint Exhibit A, Policy Section II. Under the Policy, "active employment" means that the employee "must be working for the employer on a permanent full-time basis." Id. There is no dispute that Plaintiff was covered under the Policy. Thus, there is no dispute that she was employed on a full-time basis until the date of her termination.
Defendant argues that, because Plaintiff was working full time until the day she left KMZ, she could not have been disabled within the meaning of the Policy. The cases cited in support of Defendant's position do not support this view, but focus instead upon whether the plaintiff had met the burden of proving disability.
In Kunstenaar v. Connecticut General Life Insurance Co., 902 F.2d 181 (2d Cir. 1990), the disability policy at issue provided that an employee was eligible for benefits "when he is `completely prevented from performing the duties of his occupation or employment.'" Id. at 184. Applying this provision, the court determined that the plaintiff was not disabled because he "did not dispute that he reported to work every day,nor did he present any evidence that he was completely unable to perform his duties while there." Id. (emphasis added). In Harrigan v. New England Mutual Life Insurance Co., 693 F. Supp. 1531 (S.D.N.Y. 1988), the policy at issue defined disability as occurring when injury or illness prevented a person from "`performing the material duties of his occupation.'" Id. at 1534. The court went on to determine that there was no evidence that the plaintiff in that case was unable to perform the material duties of his job. The court found that the plaintiff had reported to work every day, and further determined that the plaintiff resigned because of changes in his department. relocation of the office and difficulties with plaintiff's superior, and that symptoms from a brain tumor arose subsequent to his termination.
In Hyman v. Yeshiva University, et al., No. 99 Civ. 6149, slip op., (E.D.N Y April 12, 2001), the policy at issue also defined disability as occurring when an employee was unable to perform each of the material duties of the employee's regular occupation. The court determined that plaintiff had failed to prove that she was disabled under the policy because she continued to work full-time and because there was evidence that plaintiff knew her position was being terminated. In addition, the court found that her medical records and the testimony of the doctor did not show evidence of symptoms constituting a disability. Similarly, inRyan v. First Unum Life Insurance Co., 95 Civ. 10198, slip op. (S.D.N.Y. May 6, 1988), aff'd 174 F.2d 2002 (2d Cir. 1999), the court determined that plaintiff had "not submitted evidence that [his] symptoms prevented him from performing `each of the material duties of his regular occupation' during the relevant period. The only evidence on that point is the fact that [plaintiff] continued to work until he was terminated."Id.
Here, the Court finds Plaintiff has demonstrated, by a preponderance of the evidence. that due to sickness, she was unable to maintain a regular work-day schedule in the period before Plaintiff left employment at KMZ and that she was under regular medical treatment during that period. The evidence also supports the Court's finding that Plaintiff was unable to perform the material duties of her position on a regular basis.
Accordingly, based on the preponderance of evidence presented to the Court at trial. the Court finds that Plaintiff was unable to perform each of the material requirements of her position by her last day of employment at KMZ and was, therefore, disabled under the meaning' of the Policy as of April 8, 1993. There being no just reason for delay of entry of judgment directing such payment of benefits, judgment shall be entered upon the claim for benefits and UNUM shall thereafter commence promptly payment of disability to Plaintiff based on the disability date of April 8, 1993.
Attorneys' Fees; Prejudgment Interest
Plaintiff's application for an award of attorney's fees and prejudgment interest is denied without prejudice to renewal. The parties shall consult in an effort to resolve consensually plaintiff's claims for attorney's fees and prejudgment interest. If such consensual resolution is not forthcoming, Plaintiff shall file and serve any written application for attorney's fees and/or prejudgment interest, with any relevant supporting evidentiary material and a memorandum of law, by April 19, 2002. Defendant's response shall be served and filed with the Court by May 10, 2002 and any reply shall be served and filed by May 20, 2002.
CONCLUSION
For the reasons set forth above, the Court finds that Plaintiff was disabled within the meaning of the Policy as of April 8, 1993 and is entitled to Policy benefits as of that date. There being no just reason for delay of entry of final judgment with respect to Plaintiff's benefit claim (Fed.R.Civ.P. 54(b)), Plaintiff is directed to submit an appropriate form of judgment to the Court upon 10 day's notice to Defendant's counsel. UNUM shall commence promptly the payment of benefits following entry of judgment.
The parties shall consult with respect to Plaintiff's claims for attorney's fees and prejudgment interest. Failing consensual resolution of these issues, the parties shall brief any renewed application for such relief in accordance with the schedule set forth in the preceding section of this opinion.
SO ORDERED.