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reaching the same interpretation of Levison
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Case No. 99-1329-CIV-MOORE
June 27, 2001
FINDINGS OF FACT AND CONCLUSIONS OF LAW
THIS CAUSE came before the Court upon the claims of Plaintiff Timothy L. Grant against Defendant Provident Life and Accident Insurance Company for payment of disability benefits pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"). Plaintiff commenced this action against Defendant in the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Miami-Dade County, on April 5, 1999. Plaintiff's Complaint alleged that Defendant had breached contracts of insurance with him by failing to pay him disability benefits. On May 10, 1999, Defendant removed the action to this Court pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1441. Plaintiff filed an Amended Complaint on July 9, 1999, alleging breach of contract and violation of ERISA, and seeking a declaratory judgment that he is residually disabled under the terms of his disability insurance policies.
THIS MATTER was tried before the Court without a jury on May 9 and 10, 2000 on Plaintiff's claim for benefits pursuant to ERISA. Upon due consideration of the arguments and evidence presented at trial, the Court enters the following Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. To the extent that Findings of Fact may be deemed Conclusions of Law, they shall so he considered. Similarly, to the extent that Conclusions of Law may be deemed Findings of Fact, they shall so be considered.
FINDINGS OF FACT
A. Plaintiffs Background
1. Plaintiff is a 48-year old neurologist in private practice.
2. Plaintiff commenced his medical career in 1980 as a sole practitioner. From 1981 through 1983, Plaintiff practiced with Grant Mentin, M.D., P.A. From 1984 through 1995, he practiced with Grant, Menkin, Racher, P.A. From 1995 through the present, Plaintiff has been employed by Drs. Tobin, Zwibel Aptman, a/k/a Neurological Center of South Florida.
3. Plaintiff has a strong family history of heart disease.
4. Plaintiff applied for and Defendant issued to him four disability income insurance policies with effective dates of July 1, 1977, January 1, 1981, March 1, 1982, and November 1, 1982.
B. The Disability Policies
5. The disability policies Plaintiff purchased are as follows:
(a) No. 6-PC-422410 ("Policy A"),
(b) No. 6-PC-453897 ("Policy B"),
(c) No. 6-334-511190 ("Policy C"), and
(d) No. 6-334-542283 ("Policy D") (or, collectively, the "Policies").
6. Each of the Policies provided for a monthly benefit payable in the event Plaintiff was to meet the terms and conditions for disability coverage.
C. Plaintiff's Disability Claim
Plaintiff's Bypass Surgery
7. On June 3, 1994, Plaintiff began to experience severe epigastric discomfort while he was at home. Plaintiff's internist, Michael Cummings, M.D., performed a cardiac stress test on Plaintiff which was positive and demonstrated ischemia. Dr. Cummings immediately referred Plaintiff to cardiologist Curtis Hamburg, M.D.8. Dr. Hamburg recommended that an angiogram be performed immediately. The angiogram revealed that Plaintiff was suffering from atherosclerotic coronary artery disease ("CAD"), which manifested itself in blockage at the anterior descending artery and the diagonal branch of the anterior descending artery of Plaintiff's heart.
9. Based on the results of Plaintiff's angiogram, Plaintiff underwent an emergency double vessel coronary artery bypass on June 3, 1994. The operation successfully alleviated the blockage that caused the severe discomfort and the positive ischemic stress test.
Plaintiff's Post-Surgery Work History
10. At the time of his bypass surgery, Plaintiff was employed by Grant, Menkin Racher, P.A., as a full-time neurologist. Plaintiffs duties at the time of his surgery included examining patients in the office and the hospital, performing medical procedures in the office and the hospital, and being on night call and emergency call every third night and every third weekend.
11. Plaintiff returned to his practice with Grant, Menkin, Racher, P.A. on a part-time basis in August 1994. In 1995, Grant, Menkin Racher, P.A., dissolved.
12. On August 28, 1995, Plaintiff began working on a part-time basis with Drs. Tobin, Zwibel Aptman, a/k/a Neurological Center of South Florida ("NCSF"), and remains employed by that practice on a part-time basis. Plaintiff's current schedule consists of a reduced number of hours per week of seeing patients in the office. Plaintiff also no longer works night or weekend hours and performs no invasive procedures for seriously or critically ill patients.
Plaintiffs Post-Surgery Medical History and Claim for Benefits
13. The parties have stipulated to the fact that the Plaintiff has been diagnosed with coronary artery disease.
14. Plaintiff had a cardiac stress test performed on his heart on June 29, 1994, less than a month after his bypass surgery. The results of the cardiac stress test showed evidence of a "mild severity defect" on the anterior wall of Plaintiffs heart. The Court finds that, at the time of this test, Plaintiff's heart had not fully recovered from the bypass operation. A cardiac catheterization done shortly after this test, on July 1, 1994, showed the grafts were open and there was no significant change in the coronary circulation.
15. Plaintiff initiated his claim for residual disability benefits on July 5, 1994. In support of his disability claim, Plaintiff submitted to Defendant the statement of his attending physician, Dr. Hamburg. who opined that, due to his coronary artery disease. Plaintiff was residually disabled as of June 3, 1994, in that he was unable to perform the duties of a full-time neurologist.
16. Beginning September 1, 1994, Defendant paid monthly residual disability benefits to Plaintiff.
17. Plaintiff underwent a subsequent cardiac stress test and dual isotope scan on October 29, 1994. The results of the October 1994 tests showed that "the appearance of the scan [had] improved to nearly normal" and that there was "no evidence of ischemia." The tests did reveal some decreased activity in the anterior wall of Plaintiff's heart.
18. Plaintiff had another cardiac stress test on April 27, 1995. The results of the April 1995 stress test showed no evidence of ischemia. In addition, the changes noted on earlier tests in the anterior wall of Plaintiff's heart were not reproduced on the April 1995 study.
19. On November 10, 1995, Plaintiff underwent a dual isotope scan of his heart and a cardiac stress test. These tests revealed a very mild perfusion to the distal anterior wall of Plaintiff's heart. The radiologist examining the November 1995 scan opined that potential etiologies of the perfusion would include "stress and rest hypoperfusion, or non-transmurral scarring."
20. On September 19, 1996, Plaintiff underwent another dual isotope scan and cardiac stress test, which showed no evidence of infarct or ischemia. The radiologist examining the scans noted that "[w]hen compared to the prior study [November 10, 1995], the previously mentioned mild distal anterior wall defect is not appreciated."
21. On December 17, 1996, Dr. Grant had a resting scan that showed new findings of a mild degree of resting ischemia or potential non-transmurral scarring. This test was followed by a catheterization that again showed the grafts were patent and that there was no change in coronary circulation. This test was ultimately determined to be a false positive.
22. In April 1997, Defendant requested that Plaintiff submit to an Independent Medical Exam ("IME"). Arturo Flores, M.D., performed the 1997 IME. Dr. Flores concluded that, based on the "anginal chest pain" Plaintiff was experiencing, Plaintiff should continue working only part-time. However, Dr. Flores' report also reflects that his diagnosis was based, at least in part, on the results of the December 1996 false positive stress test. Following the results of the 1997 IME, Defendant continued paying residual disability benefits to Plaintiff.
23. On September 25, 1997, Plaintiff had another cardiac stress test. This test showed no evidence of infarct or ischemia.
24. In July 1998, Defendant requested that Plaintiff undergo a second IME. Richard Berger, M.D., performed the 1998 IME. Dr. Berger concluded that, as Plaintiff demonstrated no objective evidence for ischemia during cardiac stress testing, the use of a Holter monitor might reveal whether Plaintiff in fact suffers from ischemia. Dr. Berger's report rendered no opinion as to whether Plaintiff was capable of working as a full-time neurologist.
25. On August 21, 1998, Defendant informed Plaintiff that it planned to discontinue his residual disability benefits. The benefits were terminated effective January 31, 1999.
26. On November 12, 1998, Plaintiff underwent another cardiac stress test. The November 1998 stress test performed on Plaintiffs heart showed no change since the September 1997 test, and, hence, no evidence of ischemia.
27. An ERISA appeal was conducted on February 25, 1999, at which time the denial of the claim was upheld.
28. On March 31, 1999, Plaintiff wore a Holter monitor for nearly twenty-four hours. The monitor reflected no "significant ST segment changes," and no evidence of ischemia.
29. On August 16, 1999, Plaintiff underwent another dual isotope procedure. The procedure showed no significant changes from the dual isotope scan performed in September 1996. The radiologist examining the scan reported that "[a] very small, very mild fixed defect of the anteroapical wall is present, most compatible with minimal, non-transmural scarring. Importantly, this is unchanged since multiple previous scans dating back to at least September 9, 1996." The radiologist further concluded that "[b]ased on the long term stability of the scan, coupled with the lack of reversible abnormalities, the overall image pattern is a `low-risk' scan."
30. On February 4, 2000, Plaintiff underwent another cardiac stress test, having adjourned his deposition the previous day due to chest pains. Plaintiff also complained of chest pains on the morning of his February 2000 stress test. The February 2000 stress test demonstrated no evidence of ischemia.
31. The Court finds it significant that the vast majority of the repeated cardiac stress tests, nuclear isotope scans, and EKG monitoring of Plaintiff's heart all demonstrate that Plaintiff is not suffering ischemia even at maximum stress levels. Several of these tests involved Plaintiff walking/jogging on a treadmill at increasing speed and slope for approximately fourteen minutes and ended when Plaintiff reached his maximum heart rate. Even at that maximum level of physical exertion, no ischemia was demonstrated. Several of these tests also were performed in conjunction with dual isotope scanning of Plaintiffs heart. Such scans demonstrated normal coronary circulation, even when Plaintiff's heart was working at its maximum level.
32. Although Plaintiff does complain of chest pain, especially during times of significant fatigue or mental stress, even cardiac stress tests performed when Plaintiff was experiencing chest pain demonstrated no evidence of ischemia. Moreover, Plaintiff's treating physician, Dr. Hamburg, described Plaintiff's chest pain as "atypical," "vague," and "non-anginal," and testified that the pain may not be cardiac-related.
33. The Court finds that, as stated on the August 1999 cardiac stress test report, the mild fixed defect on the anterior wall of Plaintiff's heart is likely attributable to irreversible scarring, and is not, therefore, evidence of ischemia.
34. Plaintiff supplemented his medical record with the testimony Steven M. Warner, Ph.D., Plaintiff's psychologist, who recommends that Plaintiff avoid full-time work as a part of Plaintiff's stress management regime. While the Court is mindful that some scientific research supports the conclusion that mental stress can cause ischemia in certain individuals suffering from coronary artery disease, the Court is also aware that the vast majority of individuals who suffer from ischemia as the result of mental stress, also demonstrate ischemia when placed under physical stress. The Court finds that the record contains no definitive evidence demonstrating that Plaintiff suffers cardiac ischemia at maximum stress levels of any source.
35. Plaintiff falls into a vast category of persons who have been diagnosed with coronary artery disease but who, like Plaintiff, show no evidence of cardiac ischemia. Without some measurable evidence of the degree or severity of the coronary artery disease, there is no basis for concluding that any individual suffering from this disease is unable to work in any given profession.
Andrew P. Selwyn testified at his deposition that there are as many as seventeen million adults in this country afflicted with cardiac artery disease without symptoms of ischemia. See Selwyn Deposition at 27.
36. Accordingly, the Court concludes that, while Plaintiff does suffer from coronary artery disease, his disease, at this time, is not manifesting itself in any symptoms that render him incapable of working full-time as a neurologist.
CONCLUSIONS OF LAW
1. This action is governed by the Employee Retirement Income Security Act of 1976, 29 U.S.C. § 1001 et seq. ("ERISA"), based on the parties' stipulation.
2. The parties have further agreed that the Supreme Court's decision inFirestone Tire Rubber Co. v. Bruch, 489 U.S. 101 (1989), sets forth the law that federal courts are directed to apply in deciding ERISA actions. Under Firestone, federal courts are required to develop a "federal common law of rights and obligations under ERISA-regulated plans." Firestone, 489 U.S. at 110 (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56 (1987)); Arnold v. Life Ins. Co. of North America, 894 F.2d 1566, 1567 (llth Cir. 1990).
A. Standard of Review
3. The parties have stipulated that, under the facts of this case, the Court is required to apply a de novo standard of review to the determination of whether Defendant's denial of Plaintiff's claim for benefits was correct. See Firestone, 489 U.S. at 115 ("[A] denial of benefits challenged under section 1132(a)(1)(B) is to be reviewed under ade novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan?). Further, in the Eleventh Circuit, when conducting a de novo review of a plan administrator's determination of entitlement to benefits, a district court is not limited to the facts available to the administrator at the time of the determination. See Kirwan v. Marriott Corp., 10 F.3d 784, 789 (11th Cir. 1994).
4. ERISA imposes upon a plan participant seeking to challenge a denial of benefits the burden of showing that he is entitled to such benefits.See Stvartak v. Eastman Kodak Co., 945 F. Supp. 1532, 1536 (M.D.Fla. 1996). Hence, Plaintiff in this action is required to submit sufficient evidence to show that Defendant's decision to terminate his benefits was incorrect. In making this determination regarding which party bears the burden of proof; the Court rejects Plaintiff's contention that, because Defendant approved Plaintiff's disability claim, paid benefits to Plaintiff, then subsequently terminated those benefits, Defendant, rather than Plaintiff, has the burden of proving that Plaintiff is no longer disabled.
5. Plaintiff points to Levinson v. Reliance Standard Life Ins. Co., 245 F.3d 1321 (11th Cir. 2001), in support of his argument that Defendant bears the burden of proof in this matter. However, the Court concludes that Levinson does not support Plaintiff's contention. In Levinson, the Eleventh Circuit affirmed a district court decision in which the district court had switched the burden of proof to the defendant to demonstrate that the plaintiff was not disabled, after the court had concluded that the plaintiff was, in fact, disabled under the terms of policy at issue.See Levinson, 245 F.3d at 1331. Hence, before requiring the defendant to demonstrate that the plaintiff was not disabled, the district court had already found that the plaintiff had established that he was entitled to benefits under the definition of "Totally Disabled" set forth in the policy. See id. at 1329 (noting that "[t]he court also found that there was sufficient evidence to find that Levinson was still `Totally Disabled' under the policy, and that Reliance had not shown Levinson's condition had improved."). Accordingly, Levinson does not support the proposition that Defendant in this matter should bear the initial burden of proving that Plaintiff is no longer entitled to benefits under the Policies. Rather, as set forth in Stvartak, 945 F. Supp. at 1536, and reinforced in Levinson, 245 F.3d at 1329, 1331, to prevail, Plaintiff, the plan participant seeking to challenge Defendant's denial of benefits, must demonstrate that he was entitled to receive the residual disability benefits under the terms of the Policies.
B. Meaning of the Policies
6. Plaintiffs four Policies provide benefits for both total and residual disability precipitated by a sickness or injury.
(a) Policies A and B define "residual disability" as:
(1) your inability to perform one or more of your important daily business duties; or
(2) your inability to perform your usual daily business duties for as much time as is usually required for the performance of such duties.
(b) Policies C and D provide that:
Residual Disability means that due to Injuries or Sickness:
(1) you are unable to perform one or more of your important daily business duties or you are unable to perform your usual daily business duties for as much time as is normally required to perform them;
(2) your Loss of Monthly Income is at least 25% of your Prior Monthly income; and
(3) you are under the care and attendance of a physician.
7. The Court finds that the definitions of "Residual Disability" in all four Policies are clear and unambiguous. Accordingly, the Court will apply the plain meaning of the Policies' unambiguous terms to the facts of this action to determine whether Plaintiff was entitled to benefits under the Policies. See Anderson v. Auto-Owners Insurance Co., 172 F.3d 767, 769 (11th Cir. 1999) ("Where the existence or nonexistence of coverage is clear from the unambiguous terms of the policy, the court must give those terms the effect their plain meaning dictates.").
C. Application of Definitions of "Residually Disabled"
8. At its core, Plaintiff's basic position is that, despite the repeated negative stress tests and the complete absence of any definitive evidence of the degree or severity of his disease, he has atherosclerotic coronary artery disease, and that, in and of itself, is sufficient to establish residual disability. The Court finds that without some evidence that Plaintiff's disease in fact prevents him from performing his important job duties, or at least from performing his usual duties for as much time as he is required to perform them, Plaintiff cannot be considered "Residually Disabled" under the Policies.
9. While Plaintiff avers that his condition will be exacerbated by the onset of the mental stress that accompanies the performance of certain duties of a neurologist, the Court finds that the record contains no evidence that any type of stress-physical, mental, emotional, or any other kind-triggers any measurable manifestation of Plaintiffs coronary artery disease to a degree that hinders him from performing his job duties. In fact, in February 2000, Plaintiff underwent a cardiac stress test, while he was suffering chest pain (a symptom Plaintiff has claimed often accompanies his mental stress) and that test showed no evidence of ischemia.
10. The Court is mindful that Plaintiff's treating physician, Dr. Hamburg, has recommended that Plaintiff not work full-time as a neurologist. The Court is also aware that Marc Semigran, M.D., also concluded that Plaintiff should not engage in the fulltime practice of neurology, after meeting with and examining Plaintiff. However, even according Dr. Hamburg and Dr. Semigran a great deal of deference as Plaintiff's treating and examining physicians, respectively, Donaho v. FMC Corp., 74 F.3d 894, 901 (8th Cir. 1996), the Court finds an utter lack of medical evidence to support the conclusion that Plaintiff's CAD renders him incapable of working full-time as a neurologist. These opinions are simply inconsistent with the record as a whole, which indicates that following Plaintiff's recovery from bypass surgery, he has not suffered from any identifiable symptom of his disease that prohibits him from working full-time in his profession. The Court cannot conclude that Plaintiffs non-anginal, non-specific chest pain or fatigue, without more, render him "Residually Disabled" under the Policies.
11. Plaintiff relies upon Durr v. Metropolitan Life Insurance Company, 15 F. Supp.2d 205 (D.Conn. 1998), for the proposition that the decision to refrain from working as a preventative health measure is sufficient to qualify an insured as incapable of working due to a sickness or injury. The Court concludes that the instant matter is distinguishable from the facts present in Durr.
12. As an initial matter, evidence in the record before the Durr court indicated that the plaintiff had a very unusual medical condition of multiple aneurysm formation. See Durr, 15 F. Supp.2d at 210-211 (the plaintiff's treating physician had opined that the plaintiff "has an extraordinarily unusual constellation of medical problems which has resulted in multiple aneurysms throughout his arterial system."). In addition to the opinion of his treating physician, the plaintiff in Durr had accumulated a substantial amount of medical evidence over the course of almost ten years to support his claim. See id. at 211. The Durr court noted that plaintiff's claim file contained evidence of at least twenty-five pertinent hospital admissions between February 1987 and November 1996. Id. The court further noted that "[d]uring these hospital visits, plaintiff was treated for multiple aneurysms, cellulitis, sepsis, chest pain, peripheral atherosclerotic vascular disease, hypertension, lypid disorder, and aortic valve and arch replacement, among other things." Id. Even the independent physician to whom the defendant had referred the plaintiff had concluded that the "diagnosis is not in question, nor is the risk that Mr. Durr will have further aneurysms or an aneurysmal rupture." Id. Further, when the plan administrator in Durr made its final decision to deny the plaintiff's benefits on March 12, 1997, it had been less than six months since the plaintiff's last hospital treatment and only a little over one year since his last surgery to repair yet another aneurysm in his abdomen area. See Durr 15 F. Supp.2d at 207, 211.
13. Whereas the plaintiff in Durr had been plagued by extremely unusual and severe medical problems on a consistent basis for nearly ten years when the administrator denied his claim for benefits, Plaintiff in the instant matter had not suffered any identifiable, incapacitating symptom of his illness in almost four years when Defendant terminated his benefits. Further, whereas the frequency and severity of the plaintiff's problems in Durr supported the conclusion that the plaintiffs condition was uncontrollable, the success which Plaintiff in the instant matter has met in controlling his medical condition through the bypass surgery, medication, and continual monitoring leads to the logical conclusion that Plaintiff's condition is controllable.
14. Ultimately, the Durr court concluded that, based on the overwhelming evidence in the plaintiff's claim file demonstrating the plaintiff's disability, together with the opinions of the plaintiff's three treating physicians, and the complete lack of evidence in support of the defendant's position that the plaintiff was not disabled, it was clear that the administrator's decision to deny benefits was arbitrary and capricious. See id. at 212. In the instant matter, Plaintiff's illness has not manifested itself in any measurable manner that can be definitively linked to coronary artery disease in several years. While an administrator cannot require an insured to submit objective medical evidence in support of a claim where such is not required under the insurance policy, Mitchell v. Eastman Kodak Co., 113 F.3d 433 (3d Cir. 1997), Plaintiff must submit a sufficient amount of evidence to establish that he meets the definition of "Residually Disabled" under the Policies. See Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 63 F. Supp.2d 1145, 1160 (C.D.Cal. 1999). The Court concludes that he has not done so.
15. Plaintiff also relies upon Rosenthal v. The Long-Term Disablity Plan of Epstein, Becker Green, P.C., No. CV-98-4246 (C.D.Cal. Feb. 4, 2000) and Mitchell v. Eastman Kodak Company, 113 F.3d 433, 440 (3d Cir. 1997) in support of his position. However, both of these cases can also be distinguished from the facts at issue in the instant matter.
16. The plaintiffs in Rosenthal and Mitchell, like the plaintiff inDurr, suffered from medical conditions that were unpredictable and uncontrollable. The plaintiff in Rosenthal had tried for ten years to stabilize her blood pressure to no avail. See Rosenthal, at 4. During that ten years, the plaintiff had suffered from "sudden and abrupt fluctuations in her blood pressure, moderate to severe essential hypertension and labile blood pressure." Id. Over that ten year period, Rosenthal had been placed on twelve different prescription medications with varying results. Id. After experiencing wildly fluctuating blood pressures during a doctor's visit and subsequently fainting in reaction to intravenous medication, Rosenthal's physician placed her on a new medication (which ultimately caused her to suffer severe lethargy, fatigue, depression and lack of mental acuity) and prescribed that she monitor her pressure twice a day at work. See id. at 4-5. The plaintiff's claim file also included the report of an independent reviewing physician who found that the plaintiff suffered "from difficult to control labile hypertension." Rosenthal, at 10. Hence, no surgical procedure or medication could relieve the erratic symptoms caused by the plaintiff's severe hypertension.
17. Similarly, in Mitchell, the court concluded that the undisputed evidence in the record demonstrated that the plaintiff's chronic fatigue syndrome caused him to suffer "chronic and unpredictable fatigue and loss of concentration" which made it impossible for him to sustain regular employment. Mitchell, 113 F.3d at 440. Further, in Mitchell, the plaintiff's claim file contained documented evidence from his treating physicians that the plaintiff had been suffering persistent symptoms of his sickness for nearly six years, the frequency and severity of which were nearly impossible to predict, and which rendered him capable of only mild, intermittent activities. See id. at 441. Moreover, the plaintiff inMitchell suffered from a condition for which there was no "`dipstick' laboratory test." Id. at 443 (noting that "[b]ecause the disease, although universally recognized as a severe disability, has no known etiology, it would defeat the legitimate expectations of participants . . . to require . . . a showing of clinical evidence of such etiology as a condition of eligibility for . . . benefits.").
18. Hence, the instant action can be distinguished from Durr, Rosenthal, and Mitchell, on the grounds that Plaintiff in this matter can control his medical condition, as he has done, through surgery, medication, and continual monitoring. In addition, unlike the disease from which the plaintiff in Mitchell suffered, CAD is a disease with an established and measurable manifestation — namely, ischemia — which repeated stress tests on Plaintiff's heart have failed to demonstrate. While Plaintiff does assert that he continues to suffer from symptoms such as chest pain and fatigue, the Court cannot conclude that either of these symptoms are so severe so as to prevent Plaintiff from performing his important or usual job duties. In addition, there is a lack of credible evidence in the record to support a finding that Plaintiff's "non-specific," "non-anginal" chest pain is directly caused by his coronary artery disease.
19. The Court concludes that Plaintiff has failed to show that his coronary artery disease renders him unable to perform any of his important daily business duties or unable to perform his usual daily business duties for as much time as is normally required to perform them. Accordingly, based on a de novo review of the record, the Court finds that Defendant did not err in deciding to terminate Plaintiff's benefits on the grounds that Plaintiff was no longer "Residually Disabled" under the Policies.
CONCLUSION
Accordingly, upon due consideration of the evidence presented at trial, the arguments of counsel, the pertinent portions of the record, and being otherwise fully advised in the premises, it is
ORDERED AND ADJUDGED as follows:
1. Final Judgment is entered in favor of Defendant Provident Life and Accident Insurance Company, and against Plaintiff Timothy L. Grant. The Court will enter a separate final judgment in accordance with this Order.
2. All pending motions not otherwise ruled upon are hereby DENIED AS MOOT.