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Porco v. Prudential Insurance Co. of America

January 19, 2010

FRANK PORCO, PLAINTIFF,
v.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA AND SUPERIOR INDUSTRIES INTERNATIONAL, INC. LONG TERM DISABILITY PLAN, DEFENDANTS.



The opinion of the court was delivered by: Margaret M. Morrow United States District Judge

FINDING OF FACT AND CONCLUSIONS OF LAW

On March 5, 2008, Frank Porco filed this action against the Prudential Insurance Companies of America ("Prudential") and Superior Industries International, Inc. Long Term Disability Plan (the "Plan"). Porco alleges that he was denied long-term disability benefits to which he was entitled under the Plan, a long-term disability ("LTD") benefit plan established by his employer Superior Industries International, Inc. ("Superior"), and insured by Prudential. Porco seeks retroactive reinstatement of benefits with prejudgment interest and attorneys' fees. After reviewing the administrative record and considering the parties' trial briefs, the court makes the following findings of fact and conclusions of law.

I. FINDINGS OF FACT

A. The Plan

1. The Plan is governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"), as it is an employee benefit plan funded by plaintiff's employer.*fn1

2. Prudential acted in the capacity of Plan Administrator.*fn2

3. Under the Plan, an employee is considered disabled and entitled to payments when the employee is "unable to perform the material and substantial duties of [his] regular occupation due to [his] sickness or injury," and experiences "a 20% or more loss in [his] indexed monthly earnings due to that sickness or injury."*fn3 After 24 months of payments, an employee is considered disabled if "due to the same sickness or injury," he is "unable to perform the duties of any gainful occupation for which [he] is reasonably fitted by education, training or experience."*fn4 "Gainful occupation" is defined as "an occupation, including self employment, that is or can be expected to provided [an employee] with an income equal to at least 80% of [his] indexed monthly earnings within 12 months of [his] return to work."*fn5

B. Porco's Employment, Experience and Educational Background

4. Porco was employed by Superior as a "Senior Corporate Quality Warranty Engineer" or "Corporate Warranty, Quality Engineer" from January 21, 1998 through April 10, 2002.*fn6

5. According to Superior's job description, the essential functions of Porco's position included receiving, evaluating and documenting "customer warranty returns, assembly plant returns, and customer tested parts," as well as maintaining records regarding such items.*fn7 Porco asserts, however, that the job involved testing returned automotive parts to determine if they were defective and covered by warranty. He maintains that the job required the use of "ladder, pallet jack, wheel racks, wheel water testing/balancing" and regular lifting of 35-40 pound wheels.*fn8

6. Porco graduated from California State University in 1975 with a B.S. in business administration.*fn9 According to the information he gave Prudential, Porce worked as a "service advisor" or "service manager" at "various automobile dealerships" from 1988-1998.*fn10 There is no information in the record regarding his employment between 1975 and 1988.

C. Initial Neurological Examinations, Surgery, & Approval of Benefits

7. On February 25, 2002, Porco was seen by Dr. Pablo Lawner for a neurological consultation based on a history of intermittent back pain that was exacerbated by sitting, and that had gradually become more severe.*fn11 Lawner conducted an MRI of Porco's lumbar spine,*fn12 and saw a "fluid filled cavity" that he found "extremely interesting."*fn13

Lawner concluded that Porco's diagnosis was "likely. . . [an] aneurysmal bone cyst," and recommended a three dimensional CT scan of the area.*fn14 Following this procedure, on March 25, 2002, Lawner again diagnosed a possible aneurysmal bone cyst.*fn15 He recommended a surgical procedure described as "partial decompressive laminectomy," "resection of cyst," and "local bone grafting."*fn16 Porco agreed to undergo the surgery, and the procedure was scheduled for April 11, 2002.*fn17

8. Porco ceased work on April 9, 2002.*fn18

9. During the procedure, the surgeons concluded that Porco did not have a cyst. Rather, the surgeons encountered leaking spinal fluid and "a tangle of [nerve tissue] which corresponded anatomically to the surgical area where the presumed cyst was."*fn19 The doctors decided to discontinue the procedure at that point.*fn20

10. At a post-surgical follow-up appointment on April 26, 2002, Lawner noted that the wound from the surgery had healed well, but that Porco was experiencing "symptoms in his buttocks."*fn21 He opined that Porco should undergo a "lumbar myelogram in order to determine the details of th[e] pathology" discovered during the surgery, "which appear[ed] to be some sort of meningocele without dural covering, but with bony coverage."*fn22

11. Based on the myelogram, Lawner diagnosed "spinal stenosis from a posterior compression at the L2-3 level."*fn23 At a further consultation on May 10, 2002, Lawner noted that Porco "continue[d] to have symptoms."*fn24 He recommended that Porco seek a second opinion from Dr. Patrick Johnson, as the diagnosis indicated that "a more extensive procedure with probably a significant amount of dual grafting" would be required.*fn25

12. Porco saw Johnson on June 20, 2002. Porco described his symptoms to Johnson as follows: "constant pain" in his buttocks, occasional "shooting pain up the right leg," pain in the left and right calves, lancinating pain in the lateral right calf, "some degree of pins and needles throughout posterior thighs and calves," and unspecified "symptoms in the anterior ankles."*fn26 Porco reported that the pain was not relieved by pain killers and prevented him from walking longer than ten minutes.*fn27 Johnson noted that Porco could "do all the normal activities of daily living," though with discomfort.*fn28 Porco experienced "difficulty" sitting more than ten minutes at a time; standing was "slightly more comfortable at a thirty-minute duration."*fn29 Johnson recommended "not invading the myelomeningocele itself, but rather performing a decompressive surgery pending further evaluation."*fn30

13. On June 21, 2002, Lawner certified that Porco was unable to perform his regular work due to a "bone cyst" in the lumbar spine resulting in "back pain."*fn31

14. On July 19, 2002, Prudential notified Porco by letter that it had approved his claim for LTD benefits under the Plan, effective July 10.*fn32

D. Further Medical Evaluation and Finding of Total Disability

15. On September 26, 2002, Porco's primary care physician, Dr. David Aframian, wrote Prudential. He stated that Porco had been "suffering chronic low back pain" for the past year, and was taking vicodin, naprosyn, and robaxin for the pain.*fn33 Aframian advised that Porco's "restrictions" were no lifting over five pounds, and no bending, climbing, pushing or pulling.*fn34

16. In October 2002, Porco began to receive Social Security disability benefits.*fn35

17. On December 10, 2002, Porco consulted Dr. Susan Yadegar for a third opinion.*fn36

Yadegar noted that Porco reported his back pain was "worse" and that he was experiencing "shooting pain down the legs."*fn37 Yadegar diagnosed Porco with "tethered cord syndrome." She noted that this diagnosis was "completely different" than the Lawner's and Johnson's diagnoses; nonetheless, she was "somewhat confident" about the diagnosis, and proposed a "wide-open laminectomy."*fn38 She recommended that Porco be seen by her "mentor," Dr. Gordon McComb.*fn39

18. Porco apparently did not pursue Yadegar's suggestion that he see McComb. Instead, he began treatment with a chiropractor, Dr. Wayne Press.*fn40

19. On April 29, 2003, Prudential reviewed Porco's file. The claim manager noted that Porco's "job duties are medium in nature[.] Although medical information in file is limited[,] it is reasonable that he would be impaired from his medium duty occ[upation]." The claim manager suggested further inquiry regarding Porco's "functional status" and medications; whether additional surgery was planned; whether Porco was still limited to lifting five pounds; and whether he was interested in transferring to a less physical occupation.*fn41

20. On June 26, 2003, Porco advised Prudential he was not receiving medical treatment from any doctor other than his primary care physician, Dr. Arboleda.*fn42 On July 7, 2003. Dr. Arboleda told Prudential he had not seen Porco since February.*fn43

21. On July 11, 2003, a Prudential claims manager reviewing Porco's file indicated that "previous medical [records] in file support[ed] impairment from [ ] medium duty occ[upation] due to the presence of the cyst in his spine." The claims manager noted that Porco had not seen a physician in the past six months and questioned whether he was receiving appropriate care.*fn44 On August 8, 2003, a claims manager reported that the "medical [records] support[ed] impairment from reg[ular] occ[upation]."*fn45

22. On October 16, 2003, Porco saw Dr. Rafael Quinonez for a neurological consultation. Quinonez discussed the prior doctors' studies with Porco; he noted that new studies would be required "before final recommendations [could be] made." He requested spinal x-rays and MRI's.*fn46 After reviewing these items, Quinonez noted in his records of a January 22, 2004 follow-up consultation that "[t]he study reveals very complex findings at the L2-L3 level." He stated that "the radiologist called this possible pseudomeningocele,"and that he observed a possible bone cyst, "a cluster of blood vessels . . . suspicious of arteriovenous malformation," and "multiple hemangiomas" at other levels of the spinal column. Quinonez also noted that Porco reported "severe pain at level 10 most of the time with pain radiating from the mid lumbar area to both hips and to both lower extremities."*fn47 He recommended either a spinal angiogram or a CT angiogram of the spine to "evaluate the abnormal blood vessels," and decompression and stabilization of the spinal canal at the L2-L3 level.*fn48 Overall, Quinonez found that Porco presented a "very complex spinal problem."*fn49

23. On March 24 and 29, 2004, Prudential sent Porco letters indicating that, as of July 9, 2004, he would have to establish, among other things, that he was not able to perform the duties of any job for which he was "reasonably fitted" by "education, training, or experience" in order to continue to qualify for LTD benefits.*fn50 The letters included various forms for Porco to fill out and return.*fn51 At some point prior to this, Porco had relocated to Burleson, Texas.*fn52

24. On April 1, 2004, Porco consulted Dr. Roger Blair. Porco reported a wide variety of pain and other symptoms to Blair: "chronic sharp jolts mainly down the right leg"; "a vibrating sensation intermittently across the legs"; inability to bend his ankles; "very deep" pain in [the] legs and stomach"; a "constant" "sensation of someone cutting into his sacrum with a knife and placing iodine on it," which did not respond to vicodin but was occasionally relieved by deep massage; and "severe headaches that wrap around his forehead and behind his eyes" "1 to 3 [times] per week to 1 to 2 [times] per month."*fn53 Blair diagnosed back pain and "probable meningomyelocele."*fn54 He recommended an MRI of Porco's lumbar spine, and prescribed neurotonin for Porco's nerve pain.*fn55

25. After the MRI was conducted, Blair observed "evidence of severe central canal stenosis at L2-3," "mild central canal stenosis at L3-4 and L4-5," and "probable hemangioma at L5."*fn56 Blair's diagnosis at a follow-up visit on April 21, 2004 was "back pain," "severe lumbar stenosis at L2-3," and "possible meningomyelocele."*fn57 During this visit, Porco advised that he had stopped taking the neurotonin because he believed it produced headaches.*fn58 Blair noted: "At this time I do not think the patient can return to his regular work duties." He recommended that Porco "get another neurosurgical opinion regarding his severe lumbar stenosis."*fn59

26. Porco returned the forms he received from Prudential in March on May 3, 2004.*fn60 They included a form filled out by Blair, indicating that Porco was "unable to work" and would continue to be unable to work "if his condition [was] inoperable." Blair stated that Porco was taking vicodin and ibuprofen and using lidocaine patches for back and leg pain.*fn61 On forms that he personally completed, Porco stated that it had become difficult to put on his pants and shoes due to pain, and that he sometimes required a cane to walk if he was having particular trouble with his ankles.*fn62 He reported significant difficulties sleeping.*fn63 He stated that he drove up to ten miles 5-6 times per week, and could sit as a passenger is a car for up to 100 miles depending on the severity of his pain.*fn64 Porco indicated that he spent 15 minutes ...


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