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March 28, 2003

Salah MHADBHI, Plaintiff,
JEFFERSON PILOT FINANCIAL, Jefferson Pilot Insurance Company, Guarantee Life Insurance Company, One, Both or all Nebraska Corporations; and DOES 1-15, Defendants.

The opinion of the court was delivered by: WILLIAM HASKELL ALSUP, District Judge.

Plaintiff filed suit under 29 U.S.C. § 1132(a)(1)(B), the civil enforcement provision of the Employee Retirement Income Security Act of 1974 ("ERISA"), to recover benefits allegedly due.*fn1 This order DENIES the motion for summary judgment of defendant Jefferson Pilot Financial Insurance Company ("Jefferson Pilot") and REMANDS the matter to the plan administrator for a redetermination of plaintiff's eligibility for benefits.


  Plaintiff worked as an assistant sales manager at Serramonte Auto Plaza, an automobile dealership. Serramonte provided its employees, including plaintiff, with disability insurance. A group insurance policy issued by Guarantee Life Insurance Company to Serramonte Auto Plaza set forth the terms of coverage (Maley Exh. 3).

  Plaintiff suffers from diabetic neuropathy and alleges that this condition has rendered him unable to perform the main duties of his job. In February 2001, plaintiff submitted a short-term disability claim form to Guarantee Life Insurance (Maley Exh. 1). Included with plaintiff's submission was an "Attending Physician Statement," a Guarantee Life Insurance form signed on by Dr. Aruna Chinnakotla, plaintiff's physician (ibid.). Dr. Chinnakotla indicated on the form that plaintiff suffered from diabetes with neuro/renal manifestations and was totally disabled from his present occupation from February 5 through May 4, 2001 (ibid.). The insurer's definition of total disability was printed on this form (ibid.).

  Jefferson Pilot, which administered the insurance plan, concluded that there was not enough medical information to support plaintiff's claim of disability (Maley Exh. 4). Jefferson Pilot informed plaintiff of this assessment and requested relevant medical records from Dr. Chinnakotla (Maley Exh. 5).

  After reviewing the material submitted by Dr. Chinnakotla, Jefferson Pilot denied

[255 F. Supp.2d 1111]

      plaintiff's request for disability benefits (Maley Exh. 7). In a letter dated April 4, 2001, Jefferson Pilot informed plaintiff of its decision (ibid.). The letter stated in part (ibid.):
Benefits are being denied based on the following policy provision:
"Total Disability" means the "Insured Person's inability, due to Sickness or Injury, to perform each of the material duties of his or her regular occupation". A person engaging in employment for wage or profit is not Totally Disabled.*fn2
The letter further explained that "there is not sufficient medical information to support a severity of impairment, which would render you, totally disabled from your occupation" (ibid.). The letter noted that Dr. Chinnakotla characterized plaintiff's condition as "under control" and that plaintiff's symptoms of "burning, tingling and sometimes electrical shock sensation in the feet, especially at nighttime" were to be treated by an increased dosage of medication (ibid.). "Taking a medication alone," the letter stated, "does not substantiate Total Disability as defined above" (ibid.).

  On May 5, 2001, plaintiff wrote to Jefferson Pilot requesting a reconsideration of the decision to deny him benefits (Maley Exh. 8). He explained that his job in car sales required him to stand on his feet for long periods of time and that his job and diabetes were causing pain in his feet (ibid.). He further stated that he was "unable to perform [his] job" because he was "unable to stand for longer than half and [sic] hour" (ibid.). Plaintiff enclosed a letter from a neurologist, Dr. Chi-Chen Mao, confirming that plaintiff had difficulty performing work duties because his diabetic neuropathy caused him to experience pain while on his feet (ibid.). Also enclosed was a health-care provider form noting that plaintiff's "peripheral neuropathy . . . is aggravated by the weight bearing demands of his job" and "[h]is condition would improve with a new job with less weight bearing" (ibid.). Jefferson Pilot wrote to plaintiff on June 7, 2001, explaining that it was unable to overturn its decision because plaintiff's submissions contained no new medical evidence of total disability (Maley Decl. ¶ 11).

  In November 2001, Jefferson Pilot received a letter from the California Department of Insurance indicating that plaintiff had requested assistance and asking Jefferson Pilot to reevaluate the matter (Maley Exh. 9). Jefferson Pilot requested and received additional medical information from Dr. Chinnakotla and Dr. Mao. It then arranged for a third physician, licensed in California and selected by a third-party vendor, to review plaintiff's medical records. The third physician, Dr. Fred Nowroozi, requested a job description for plaintiff's regular occupation, which plaintiff's employer subsequently provided. The job description indicated that plaintiff's duties as a car salesperson required him to sit for three hours, stand for two hours, and walk for three hours each workday, all with rest (Maley Exh. 20). Furthermore, plaintiff's job occasionally required him to bend, to squat, and to lift and carry loads of up to ten pounds (ibid.). "Driving automotive equipment" was also included among the activities the job involved (ibid.).

[255 F. Supp.2d 1112]


  Dr. Nowroozi recommended that plaintiff undergo additional testing to evaluate his ability to return to work (Maley Exh. 18). Another physician, Dr. David Discher, subsequently reviewed plaintiff's medical records and examined him. Dr. Discher's evaluation, dated July 20, 2002, included the following conclusions (Maley Exh. 22):
Specific Limitations and Restrictions
Sitting limited to 30 minutes at a time. Standing limited to 30 minutes at a time. Alternating between both over an 8 hour work day is recommended. Walking distance should be limited to 100 feet without uneven terrain or stair climbing. Walking can be repeated over the workday with the requirement of a sitting rest of at least 30 minutes prior to a walk.
* * * * * *
Physical Capacity Findings
Is generally able to use his feet for standing and walking alternating with appropriate sitting intervals. Carrying light loads, lifting repetitively light loads, and assuming mild bended or squatting positions are all functionally safe within some limits for repetitions. I do not recommend that this person operate any vehicle.
Employer's Physical Requirements for Sales Person
With respect to [the requirements] listed by his employer, I have interpreted that none of my recommended limitations or restrictions are impacting on job requirements, assuming that sitting and standing/walking alternation can be worked out in the details. These statements are limited to my evaluation of his feet. The statements bear on current abilities and functional capacities, not future limitations.
Jefferson Pilot concluded from Dr. Discher's report that plaintiff did not suffer from a sickness or injury that rendered him unable to perform the main duties of his regular occupation (Maley Exh. 24-25). Jefferson Pilot forwarded Dr. Discher's report to plaintiff's treating physician, Dr. Chinnakotla, for comment. As requested, Dr. Chinnakotla confirmed in writing that she agreed with the Dr. Discher's findings (Maley Exh. 24).

  Relying on the assessments by Dr. Discher and Dr. Chinnakotla, Jefferson Pilot concluded that plaintiff was not totally disabled within the meaning of the policy, and as a ...

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