UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Wayne R. Urso

v. Civil No. 06-cv-346-JM

Prudential Insurance

Company of America

O R D E R

Plaintiff Wayne Urso successfully brought this action, 

pursuant to 29 U.S.C. §§ 1001, et seq. (“ERISA”), to enforce

payment of long-term disability benefits due under an employee

welfare benefit plan (“Plan”) offered by his former employer,

Comsys Information Technology Services, Inc. (“Comsys”) and

insured by defendant, The Prudential Insurance Company of America

(“Prudential”). Before the court are two motions filed by Urso,

one for damages, interest and costs (document no. 22), and one

for attorney’s fees (document no. 27). Prudential objects to

both motions (document nos. 24 and 30, respectively). Because I

found that Urso was disabled within the meaning of the Plan, he

is entitled to long-term disability (“LTD”) benefits. The

parties dispute the amount of the benefits award, whether Urso is

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entitled to prejudgment interest, and whether Urso may be

reimbursed for his attorney’s fees and costs. As explained in

detail below, both of Urso’s motions are granted.

1. Motion for Damages, Interest and Costs (doc. no. 22)

Urso claims he is entitled to receive $165,032.37 from

Prudential, which represents the sum total of his damages

($152,640.26), interest thereon ($7,922.56) and the costs

associated with obtaining the benefits at issue here ($4,469.55).

Urso also asserts that he is entitled to continue to receive

monthly benefit payments until he reaches retirement, 156 months

from now, in 2021. Prudential disagrees with the monthly benefit

amount Urso used to calculate the damages award, arguing the

wrong salary figure was used. Prudential also argues that Urso

is not entitled to either interest or future benefits payments as

a matter of law. Prudential asserts that Urso’s LTD benefits

award must be limited to the period from April 17, 2000, when

Urso first became entitled to LTD benefits, to January 31, 2008,

the last day of the month in which liability was determined.

(a) Damages Calculation

How much Urso is entitled to receive in damages is governed

by the terms of the Plan. See Balestracci v. Nstar Elec. & Gas

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1The Plan has two separate formulas for calculating LTD

benefits, depending on whether the claimant is “disabled and not

working” or “work[s] while . . . disabled.” See WU0022-24. At

issue here is the availability of LTD benefits for Urso when he

became disabled and stopped working, which, according to his

application for LTD benefits, occurred on January 18, 2000. See

WU0042.

3

Corp., 449 F.3d 224, 230 (1st Cir. 2006) (applying “common sense

principles of contract interpretation” to ERISA plans) (internal

quotation omitted)); Orndorf v. Paul Revere Life Ins. Co., 404

F.3d 510, 517-18 (1st Cir. 2005) (explaining de novo standard of

review in ERISA cases). The Plan provides a four-step process to

calculate benefit payments if a claimant, like Urso, is both

disabled and not working. See Administrative Record WU0022

(hereinafter referred to simply by the Bates-numbered page).1

The first step requires a claimant’s monthly earnings to be

multiplied by 60%, to determine the gross amount of any potential

LTD benefit payment. The next three steps require that gross

amount to be capped, and then reduced by “any deductible sources

of income,” which includes social security disability payments

and worker’s compensation payments, to arrive at the actual

monthly payment. The threshold issue in determining the benefits

award, therefore, is what the “monthly earnings” are.

The Plan defines “monthly earnings” as: “your average

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2The significance of the “date of disability” to ascertain

both the eligibility for and the amount of benefits is manifest

throughout the Plan. For example, the “Benefit Highlights” of

the Plan states: “The long term disability plan provides

financial protection for you by paying a portion of your income

while you have a long period of disability. The amount you

receive is based on the amount you earned before your disability

began. In some cases, you can receive disability payments even

if you work while you are disabled. Benefits start after the

elimination period.” WU0013. 

4

months Base Pay and Commissions during the 3 month period prior

to your date of disability. It does not include income received

from bonuses, overtime pay, any other extra compensation, or

income received from sources other than your Employer.” WU0023. 

Critical to this definition is the onset “date of disability,”

because the Plan requires the average salary for the three months

before a claimant becomes disabled to be the “monthly earnings”

used to determine the LTD benefits award.2 

The parties dispute what period of time constitutes the “3

month period prior to your date of disability.” Prudential

argues Urso became disabled on January 18, 2000, when he stopped

working at Comsys and filed his claim for LTD benefits, so the

relevant time period is October - December, 1999. Urso argues he

was already disabled in 1998 or 1999, as evidenced by his medical

records and his reduced work load and salary in 1999, rendering

the three months when he last worked on a full-time basis the

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relevant time period. Although the record shows that Urso first

applied for LTD benefits when he stopped working on January 18,

2000, neither the date of his application nor the date he stopped

working is the definitive date for purposes of calculating Urso’s

benefits award. The critical date in determining a benefits

award is when the participant becomes disabled, not when the

claimant stops working, because the Plan provides for benefits

payments regardless of whether or not a claimant is working, as

long as the claimant is disabled. See WU0023 (formula for

calculating benefits if you work while disabled). 

The Plan defines when a participant becomes disabled, as

when Prudential determines that:

you are unable to perform the material and 

substantial duties of your regular occupation

due to your sickness or injury; and

you have a 20% or more loss in your indexed

monthly earnings due to that sickness or injury.

WU0021 (emphasis in original). The Plan defines “material and

substantial duties” to be “duties that are normally required for

the performance of your regular occupation, and cannot be

reasonably omitted or modified,” except that if the job regularly

requires more than 40 hours per week, Prudential may consider a

claimant still “able to perform that requirement” so long as the

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claimant retains the capacity to work 40 hours per week, id.; in

other words, the “material and substantial duties” of a job are

still being performed even if a claimant, who previously worked

more than 40 hours per week, can still perform those duties but

limits his work to a regular full-time schedule of 40 hours per

week. This definition of disability has both an occupational

component, the inability to continue performing the material and

substantial duties of one’s regular job, and an economic

component, the loss of at least 20% of one’s income. A claimant

is not disabled unless he satisfies both criteria. 

After carefully reviewing the record, I conclude that the

onset date for Urso’s disability was April 1, 1999, making the

relevant 3 month period of “average months Base Pay and

Commissions” January - March 1999. In April 1999, Urso was 

unable to perform the material and substantial duties of his

regular occupation, and he sustained a 25% reduction in pay,

rendering him disabled as defined by the Plan. Several factors

support this conclusion.

First, the undisputed evidence shows that Urso was diagnosed

with thoracic outlet syndrome on July 2, 1998. WU0111 (notes

from Dr. William Patterson). On September 10, 1998, Urso’s

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3Urso had originally received the certification on October

4, 1996. See Pl.’s M. for Damages, Ex. 3.

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application for “Airman Medical Certificate” was denied, because

he did not meet the prescribed medical standards. See WU01883. 

As a result of his loss of certification, Urso was “grounded,”

which prevented him from continuing his work as a project-based

software engineer and computer scientist on assignment with the

Massachusetts Institute of Technology (“MIT”), which he had been

doing for several years. See WU0187LD-LE; WU0187YE-YF. Because

of his medical issues, Urso could no longer work in the confined

spaces of bunkers and airplanes as he had done previously when at

a project site, but was required to work in an office on

restricted duty. See Pl.’s M. for Damages, Ex. 4 (explaining

Urso was required to have the medical certification as a

condition of his employment as a computer consultant in aviation

systems); see also WU0187YF; WU0187YJ. Although Urso had not

wanted his injuries to inhibit his ability to perform his job,

see Pl.’s M. for Damages, Ex. 6 (Urso’s January 1999 letter

stating he was “not looking for a reduction in workload, or a

change in responsibilities, or any extended time off”), he

continued to suffer from physical ailments related to his

computer work that required him to reduce his work load in April

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1999 to only 6 hours per day. See Pl.’s M. for Damages, Ex. 1

(doctor’s “Authorization for Absence” to “avoid aggravation of

his condition”); see also WU0187YK. That reduced work day

continued through the end of 1999 until he eventually had to stop

work completely on January 18, 2000.

These facts demonstrate that Urso first became disabled when

he reduced his work load to 6 hours per day in April 1999. In

late 1998 and early 1999, Urso already had been forced to stop

performing the “material and substantial duties” that were

normally required in his “regular occupation” as a computer

software engineer on special projects with MIT, because the loss

of his Airmen Medical Certification had prevented him from

continuing in that capacity. While the loss of an occupational

license is not “in itself” proof of disability, see WU0021, the

fact that the Plan specifically addresses such a loss indicates

the significance of licensing in performing an occupation and

suggests the loss is a factor to be considered in determining

when a claimant becomes disabled. It was not until April 1999,

however, when Urso’s work day was reduced by 25% from a standard

8 hour day to 6 hours per day, and his salary was proportionately

reduced as well, that he satisfied the second component of the

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Plan’s definition of disability by having “a 20% or more loss in

your indexed monthly earnings due to that sickness.” See WU0021;

see also WU0200-02 (printout of Urso’s “Payroll Detail earnings”

for 1999). 

Second, the plain language of the Plan reflects a broad

concept of “disability,” to encompass both partial and total

disability, as well as temporary and permanent disability. The

definition itself contemplates partial disability, by requiring

only a loss of 20% of income, not 100% of income, and an

inability to perform the material and substantial duties of the

claimant’s regular occupation, not any occupation. See WU0021. 

The Plan anticipates that a disability also may not be permanent,

by setting forth a separate provision for a disability that

continues after 24 months. See id. A permanent disability

occurs when “due to the same sickness. . . [the claimant is]

unable to perform the duties of any gainful occupation,” which in

turn is defined as any occupation that the claimant is reasonably

fitted to do, that would allow the claimant to earn “60% of his

indexed monthly earnings” within a year of returning to work. 

Id. This definition of a permanent disability also has both a

performance and an earnings component, and does not require a

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4Although the evidence showed Urso once had worked as many

as 70 hours per week, the Plan does not consider a participant

disabled if he cannot continue to work overtime, but instead

looks to see if the participant can work a regular, 40 hour per

week schedule. See WU0021. 

5Prudential’s argument that Urso is entitled to only 60% of

the salary he earned from Comsys in the latter part of 1999 when

he was already partially disabled, which was only 75% of the

income he earned before becoming disabled, does not comport with

the plain language of the Plan or advance the policy goal of

making ERISA participants whole. See Varity Corp. v. Howe, 516

U.S. 489, 497 (1996) (explaining fiduciary role of ERISA to

10

complete loss of either. By its explicit terms, the Plan expects

and intends to provide benefits for various combinations of

partial or total, and temporary or permanent, disabilities.

Accordingly, the critical “date of disability” for Urso is

April 1, 1999, when he first became partially disabled and

entitled to disability benefits under the Plan. Though Urso did

not become totally disabled until January 18, 2000, when his

disability caused him to stop working completely, the onset date

of his disability occurred in April 1999, when his work schedule

and his income first were reduced by 25%.4 Because the Plan

defines “monthly earnings” as the “average months Base Pay and

Commission during the 3 month period prior to your date of

disability,” WU0023 (emphasis added), the relevant time period is

January, February and March, 1999.5 This conclusion is

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protect employee benefits); Firestone Tire & Rubber Co. v. Bruch,

489 U.S. 101, 108-114 (1989) (discussing ERISA’s remedial

scheme). 

11

supported both by the facts, as discussed above, and by the law. 

See Bath Iron Works Corp. v. Dir., U.S. Dep’t of Labor, 193 F.3d

27, 32 (1st Cir. 2000) (enforcing terms of plan to allow date of

onset of new injury to determine benefits calculation); cf. Davis

v. First Union Corp. Long Term Disability Plan, 213 F. Supp. 2d

29, 37-38 (D. Mass. 2002) (denying LTD benefits because onset of

disability occurred before claimant became eligible for coverage,

even though claimant did not stop working or apply for benefits

until after becoming eligible).

The parties agree that Urso is entitled to receive LTD

benefits at 60% of his average monthly earnings for the three

months immediately preceding the onset of his disability. They

also agree that any benefits payment received under the Plan must

be offset by sums Urso receives, or received, from worker’s

compensation and social security, and that Prudential actually

overpaid Urso previously when it neglected to properly account

for the worker’s compensation and the social security disability

income he received. With the critical 3 month period of income

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6The payroll detail appears to reflect Urso’s biweekly

paychecks without “bonuses, overtime pay, [or] any other extra

compensation,” WU0023; however, if those figures include sources

of income that cannot be counted in monthly earnings as defined

by the Plan, or otherwise do not accurately reflect Urso’s income

during the relevant time period, the parties are ordered to

correct the record with appropriately verified documents. 

12

resolved, the monthly benefit determination follows. 

Urso’s LTD benefit payment calculations must be based on the

average of his salary from January - March, 1999, which, based on

the undisputed record before me, is $9,117.93. See WU0200

(computer printout of Urso’s payroll detail earnings).6 The Plan

provides that 60% of the average monthly earnings, or $5,470.76,

is the gross monthly benefit figure, from which any deductions

required by the Plan must be taken, to calculate Urso’s monthly

payment for the period from April 17, 2000, when he first became

entitled to receive LTD benefits, until January 30, 2008, the

month in which Prudential’s liability was determined. Because I

found that Urso is disabled within the meaning of the Plan, he

also is entitled to continue to receive a monthly benefit payment

as long as he remains disabled within the meaning of the Plan and

abides by the provisions of the Plan governing the receipt of LTD

benefits, including, in particular, any examinations by medical

practitioners or vocational experts that Prudential may require

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as provided by the terms of the Plan. See 29 U.S.C. §

1132(a)(1)(B) (allowing participant to recover benefits due him

and enforce his rights under the terms of the Plan). Plaintiff

is ordered to recalculate the damage award based on this

$9,117.93 gross monthly earnings figure, in the format submitted

as Exhibit 1 to his motion. 

(b) Prejudgment Interest

Urso also seeks interest on his damage award. Prudential

argues interest is not allowed as a matter of law, erroneously

citing 28 U.S.C. § 1961(a), which governs post judgment interest

awards. “In ERISA cases, the district court has broad discretion

both to determine whether to award prejudgment interest and to

determine the parameters of such an award.” Radford Trust v.

First Unum Life Ins. Co., 491 F.3d 21, 24 (1st Cir. 2007). In

making this determination, the court balances several factors

that weigh the equities of granting such an award. See id. at 25

(deferring to district court to assess the equities); see also

Janeiro v. Urological Surgery Prof. Ass’n, 457 F.3d 130, 138 (1st

Cir. 2006) (following same analysis as award of attorney’s fees

to justify denial of prejudgment interest); Caldwell v. Life Ins.

Co. of N. Am., 287 F.3d 1276, 1286 (10th Cir. 2002) (evaluating

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whether prejudgment interest would compensate the injured party

without being inequitable). 

I find, under the circumstances presented here, that

prejudgment interest is justified. Urso has sought to obtain the

LTD benefits to which he was entitled for many years, through two

rounds of litigation in this court and several reviews by the

Plan administrator. During this process his mental and physical

health have deteriorated, and his socioeconomic status has eroded

substantially. The cost of prejudgment interest would be

relatively insignificant to Prudential but would contribute

significantly towards compensating Urso for the damages he has

sustained. Urso is entitled to prejudgment interest at the

federal rate, which figure shall be calculated after the final

damage award is determined. See Cottrill v. Sparrow, Johnson &

Ursillo, Inc., 100 F.3d 220, 224-25 (1st Cir. 1996) (explaining

remedies for federal statutory claims ordinarily are governed by

federal law); see also Cook v. Liberty Life Ass. Co. of Boston,

No. Civ. 00-408-B, 2002 WL 482572, *4 (D.N.H. March 29, 2002),

aff’d 320 F.3d 11 (1st Cir. 2003). Interest ordinarily accrues

from the date a claimant is first denied benefits, see Cottrill,

100 F.3d at 224, which occurred here on April 17, 2002. See

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WU0108B. Urso appealed that initial denial of LTD benefits,

however, and succeeded in getting LTD benefits reinstated through

September 16, 2003. See WU0108F. Accordingly, interest began to

accrue on September 17, 2003. See id. at 224 (allowing interest

from the date the fiduciary withholds money legally due serves

ERISA’s remedial purpose of making a participant whole). 

Finally, in his motion for damages, Urso seeks to include

the costs incurred in obtaining the relief sought. Because the

costs include costs associated with Urso’s first action to

recover the benefits due, see Urso v. Prudential Ins. Co. of Am.,

No. 03-cv-24-JD (D.N.H.) (“Urso I”), and because an award of

costs is governed by the same statutory provision governing an

award of attorney’s fees, I will address his right to costs below

in my analysis of Urso’s request for attorney’s fees.

 2. Motion for Attorney’s Fees (document no. 27)

A prevailing party in ERISA cases may seek reasonable

attorney’s fees and costs. See 29 U.S.C. § 1132(g)(1). There is

no presumption in favor of such an award, but “instead fee awards

under ERISA are wholly discretionary.” Cottrill, 100 F.3d at

225. In Cottrill, the First Circuit announced its standard which

district courts are to follow to determine the appropriateness of

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awarding fees. See id.; see also Janeiro, 457 F.3d at 143

(following Cottrill). The five factors that should be considered

are: “(1) the degree of culpability or bad faith attributable to

the losing party; (2) the depth of the losing party’s pocket,

i.e., his or her capacity to pay an award; (3) the extent (if at

all) to which such an award would deter other persons acting

under similar circumstances; (4) the benefit (if any) that the

successful suit confers on plan participants or beneficiaries

generally; and (5) the relative merit of the parties’ positions.” 

Cottrill, 100 F.3d at 225. This list provides a guide to the

district court and “is illustrative, not exhaustive,” with no

need for every factor to be considered in every case or any

single factor to be dispositive. Id.

Guided by these considerations, I find an award of

attorney’s fees to be equitable in this case. While I do not

necessarily believe that Prudential acted in bad faith here, I

find it did not assess Urso’s condition with the degree of care

and attention to detail that was warranted. With respect to the

second factor, an award of attorney’s fees would not deplete the

assets of the Plan, which is insured by Prudential, to the

detriment of the remaining participants. Cf. Janeiro, 457 F.3d

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at 144 (benefits award already depleted the Plan’s assets

substantially). The third and fourth factors work in tandem

here, where my reading of the Plan’s definition of disability

would serve to benefit those participants who become partially

disabled but continue to work and who should not be penalized for

their efforts to try to remain employed. Given my analysis of

Urso’s claim, I clearly find that the merits of his position

outweighed the merits of Prudential’s position here. The factors

to be considered point to an award of attorney’s fees, which

shall be granted here.

One final matter must be addressed. Urso commenced this

litigation on January 23, 2003, when he filed Urso I. That case

was closed after it was remanded back to the Plan administrator

for a full and fair hearing. See Urso I, slip op. at 12-13

(D.N.H., Nov. 23, 2004). Following exhaustion of his

administrative remedies on remand, Urso commenced the instant

suit. This action was an appeal from the Plan administrator’s

final decision, issued July 1, 2005. The procedural history and

factual record both demonstrate that Urso has pursued one long

litigation effort to obtain the LTD benefits due him under the

Plan. I find that Urso I was part and parcel of the instant suit

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and, therefore, conclude that it is equitable to include the

costs and attorney’s fees incurred in Urso I with the award of

attorney’s fees and costs granted here. 

Conclusion

For the reasons set forth above, Urso’s Motion for Damages,

Interests and Costs (document no. 22) and his Motion for

Attorney’s Fees (document no. 27) are granted. 

Urso is ordered to file with the court a revised Exhibit 1

to his Motion for Damages, to set forth his damages calculation

based on the monthly salary figure determined above, within two

weeks of the date of this order. Prudential shall respond to

Urso’s new damage award total within ten days of the receipt of

the revised calculation. 

Urso is entitled to an award of attorney’s fees in the

amount of $76,998.50, as set forth in the detailed statement of

services rendered attached as Exhibit 2 to his Motion for

Attorney’s Fees. He is also entitled to the costs incurred in

bringing this suit; however, it appears that the costs set forth

in Exhibit 1 attached to his Motion for Damages, which totaled

$4,469.66, have been included in the expenses detailed in Exhibit

2 to his Motion for Attorney’s Fees, which totaled $10,708.53. 

Case 1:06-cv-00346-JM Document 32 Filed 04/24/08 Page 18 of 19
19

Accordingly, Urso shall be awarded his attorney’s fees of

$76,998.50, plus costs in the amount of $10,708.53, for a sum

total of $87,707.03. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 24, 2008 

cc: Robert A. Shaines, Esq.

 William T. Bogaert, Esq.

 Christopher P. Flanagan, Esq. 

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