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October 9, 2002


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 denied.


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 Jersey.*fn1

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 adjustments.

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 head extension."

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 ...

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