The opinion of the court was delivered by: William G. Bassler, United States District Judge
The issue raised by this motion for summary judgment is whether,
applying a heightened arbitrary and capricious standard, an insurance
company illegally terminated an insured's disability benefits.
Plaintiff Richard J. Conti, D.C. ("Dr. Conti") has brought this action
pursuant to Section 1132 of the Employee Retirement Income Security Act of
1974 (ERISA), to recover benefits allegedly due under a disability income
insurance policy issued by Defendant The Equitable Life Assurance Society
of the United States ("Equitable"). The Court has jurisdiction pursuant
to 28 U.S.C. § 1331. This matter is now before the Court on
Defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56, and
on Plaintiff's cross-motion for summary judgment. For the following
reasons, Defendant's motion is granted, and Plaintiff's motion is
Unless otherwise indicated, the facts underlying this controversy are
undisputed. Plaintiff Richard J. Conti is a chiropractor who practiced in
the State of New Jersey until March 1, 1992. Dr. Conti obtained his
license to practice in 1983, and began practicing soon thereafter with
his brother. On May 23, 1985, while on vacation in the Bahamas, Dr. Conti
fractured his cervical spine in a diving accident resulting in two of his
three injured cervical vertebrae being wired and fused together.
After approximately six months of rehabilitation and physical therapy,
Dr. Conti was able to return to practice, and in 1986 he joined
Chiropractic Associates of New Jersey, located in Freehold, New
The Policy insured Dr. Conti against "total disability," which was
defined to mean that as a result of injury or sickness, the insured is
unable "to engage in the substantial and material duties of [his] regular
occupation," and is under the regular care and attendance of a doctor.
(Id.) The Policy also contained a disability income rider that defined
"residual disability" to mean that as a result of injury or sickness, the
insured is unable to perform: (1) one or more of the substantial and
material duties of his occupation; or (2) the substantial and material
duties of his occupation for as much time as is usually required to
perform them. The Policy's disability income rider did not consider
residual disability to exist "for any time [the insured is] not under the
regular care and attendance of a doctor." (Id.)
On September 18, 1989, Dr. Conti was awakened in his sleep with extreme
numbness and burning down both arms. Feeling as though he was having a
heart attack, at approximately 2:00 a.m., he rushed himself to the
emergency room at the Freehold area hospital. A cardiologist examined
him, determined that Plaintiff's symptoms were not heart related, and
suggested that his symptoms were related to his previous neck injury.
Dr. Conti was later referred to and seen by a neurologist, Amos Katz,
M.D. Dr. Katz evaluated Dr. Conti's condition and concurred that his
symptoms were related to his cervical spine. Dr. Katz prescribed
medication and recommended that Dr. Conti continue receiving chiropractic
On September 22, 1990, while on vacation, Dr. Conti was involved in an
automobile accident. Dr. Conti's vehicle was hit by another car and
forced off the road. Although Plaintiff does not recall if he had initial
symptoms, Dr. Conti alleges that the motor vehicle accident in 1990
caused injury to his cervical spine. Dr. Conti did not immediately go the
hospital for his 1990 motor vehicle accident, but in the days after the
accident he noticed symptoms in his neck and back which became
increasingly evident. Dr. Conti described the symptoms as increased
soreness and stiffness.
The following week, when he returned to his practice, Dr. Conti claims
to have immediately noticed increased symptoms, which intensified during
the next several days. He had severe headaches, neck pain, numbness and
burning down his right arm and hand while treating patients. During this
time, his partners treated him daily with gentle spinal adjustments,
traction, and ice and heat therapies.
With the exception of the treatments he received from his partners,
Dr. Conti did not consult a physician about the injuries he allegedly
sustained in the motor vehicle accident until February 1991. On February
19, 1991, Dr. Conti made an appointment with Dr. Katz, the neurologist
who examined him seventeen months earlier at Freehold Hospital. After the
consultation and examination, Dr. Katz set forth his findings in a report
dated February 21, 1991. On February 25, 1991, Dr. Katz performed an EMG
on Dr. Conti's upper extremities. The test revealed bilateral acute and
chronic C6, C7, C8 radiculopathy, right greater than left, and moderate
bilateral carpal tunnel syndrome, left greater than right. These findings
are confirmed in another report dated February 26, 1991.
On December 19, 1991, Dr. Conti scheduled an appointment with Dr. Katz
to discuss his continued health concerns. Dr. Katz referred him to Dr.
Banzon, a local orthopedic surgeon. Dr. Conti was scheduled for an MRI at
Imaging Center, Freehold, New Jersey. The MRI report dated January 27,
1992 states: "Conclusion: Anterolisthesis of C5 on C6 which reduces with
Anterolisthesis is instability of the cervical spine. In Dr. Conti's
case, the reported instability allowed the 5th cervical vertebra to move
independently in relationship to the 4th and 6th cervical vertebrae. The
reported instability exists because Dr. Conti's 5th vertebra is not
effectively supported and restrained by ligament or surgical bone
fusion. After reading the MRI results, Dr. Banzon referred Dr. Conti to
Dr. Cary Glastein, an orthopedic surgeon.
On February 5, 1992, Dr. Conti was examined and x-rayed by Dr.
Glastein, who reviewed all previous diagnostic tests and reports. Dr.
Glastein's impressions were documented in his report dated February 5,
1992 as follows:
Evidence of cervical instability with definite
cervical radiculopathy both clinically and on EMG's.
My feeling at this time, is that he has marked
radiculopathy secondary to pain at the free segment
above his fused cervical spine. It is my feeling that
his symptoms are exacerbated by his line of work, and
although I hesitate to suggest to him that he give up
his chiropractic practice, it is my feeling that it
may be necessary. As far as further surgery is
concerned, because he has had extensive cervical spine
surgery at this point, I would suggest that he avoid
this at all costs.
Although Dr. Conti allegedly felt increasing effects as a result of the
1990 automobile accident, from the time of the accident until early 1992
Dr. Conti continued to function as a chiropractor. On February 24, 1992,
approximately a year and a half after the 1990 automobile accident, Dr.
Conti made a claim for benefits under the Equitable Policy and indicated
that he would be withdrawing from chiropractic practice, on the grounds
that his injury prevented him from being able to practice effectively and
without pain. Thereafter, Dr. Conti ceased his chiropractic practice on
March 1, 1992.
On the claim form filed with Equitable, Dr. Conti represented that his
disability occurred as a result of the injury to his cervical spine
attributable to the automobile accident on September 22, 1990. On the
claim form, Dr. Conti also stated that his chiropractic duties included
(1) "[l]ifting patients/helping them turn on adj[usting] table"; (2)
"[u]sing hands and arms as levers and applying a downward compressive
thrust to patient's spine"; and (3) "[b]ending over patients to adjust
the cervical spine with my neck in an extended position." (Id.)
After retiring from practice, on March 10, 1992, Dr. Conti was examined
by Dr. Martin Savitz of Nanuet, New York. Dr. Savitz is a professor of
neurosurgery at Mt. Sinai Hospital in New York, and is a published author
on the subject of neurosurgery. Dr. Conti asked if there was some
procedure that would allow him to practice again. He explained, in
detail, his daily activities and duties as a chiropractor and his
symptoms as a result. Dr. Savitz's prognosis, confirmed in his report
dated March 10, 1992, was the same as Dr. Glastein's.
In May 1992, Dr. Conti was scheduled for another EMG. He was examined
by Dr. J. Masceri, M.D. In a report dated May ...