64. In the instant case, the "Proof of Claim" section of the Kemper Plan provides language of identical significance to that in Patterson. "A claim form provided by the Company must be completed and returned to the employee group claim department prior to receiving any benefit payment under the Plan" and "the Company may require confirmation of a continuing disability at reasonable intervals through submission of a new form." (P. Ex. 1, D. Ex. 1.) The Kemper Plan also specifies that independent examinations may be required to determine the validity of a claim.
65. As the Kemper Plan reserves for the plan administrator discretion similar to that preserved for the Caterpillar plan administrator under controlling Seventh Circuit precedent, Patterson, 70 F.3d at 505, an arbitrary and capricious standard of review should be applied in this case.
66. The court also finds that there is no evidence of a conflict of interest between the Kemper Plan and the Employee Claims Department of Lumbermens which administered the program. The Kemper Plan is funded fully by the employees who participate in it. (Tr. at 747-748.) As Lumbermens is not involved in the funding of the plan, it has no economic interest in whether Wilczynski receives her benefits or not, and thus no conflict exists. See Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1343 (7th Cir. 1995). Even if a conflict of interest does exist, since the Kemper Plan affords the administrator discretion in determining benefits, the standard of review remains the arbitrary and capricious standard. Donato v. Metropolitan Life Ins. Co., 19 F.3d 375 (7th Cir. 1974).
67. Where an arbitrary and capricious standard is used, the court may consider only those materials presented to the plan administrator. Donato v. Metropolitan Life Ins. Co., 19 F.3d 375, 380 (7th Cir. 1994) (quoting Fuller v. CBT Corp., 905 F.2d 1055, 1058 (7th Cir. 1990)). Further the court must give substantial deference to the plan administrator's determination. Id. The plan administrator's determination must be upheld unless it is "downright unreasonable." Id. It does not matter whether the decisionmaker's interpretation of the evidence was actually correct, but whether their interpretation was reasonable. Cvelbar v. CBI Illinois Inc., 106 F.3d 1368, 1378 (7th Cir. 1997).
68. Thus, "before concluding that a decision was arbitrary and capricious, a court must be very confident that the decisionmaker overlooked something important or seriously erred in appreciating the significance of evidence." Central States, Southeast v. Gateway Foods of Twin Ports, Inc., 951 F. Supp. 732, 736 (N.D. Ill. 1996) (quoting Wahlin v. Sears, Roebuck & Co., 78 F.3d 1232, 1235 (7th Cir. 1996)). As stated in Pokratz v. Jones Dairy Farm, 771 F.2d 206, 209 (7th Cir. 1985), "a decision is not arbitrary and capricious when a court can review reasons stated for the decision without a loud guffaw."
69. The termination of Wilczynski's benefits was deemed effective as of September 6, 1993. The two year period from her initial receipt of long term disability benefits ended on October 11, 1993. Accordingly, Wilczynski fell within the Kemper Plan's first definition of total disability, the occupational disability clause, which provides that if a claimant could perform his or her "work," then the claimant is not disabled.
(D. Ex. 1.)
70. Wilczynski's work was not the full-time CLSU Manager position she was hired to perform, but the flex-time CLSU Manager position that she was performing for the ten months prior to her disability leave. An ERISA claimant's regular duties are not that for which the claimant was originally hired, but the duties that the claimant was actually performing. Goldstein v. Group Ins. Plan for Admin. & Management Employees of Fairchild Republic Co., 940 F. Supp. 474, 478 (E.D.N.Y. 1995), aff'd, 99 F.3d 101 (2d Cir. 1996). In further support of this conclusion, the court notes that of the fifteen months that Wilczynski actually worked for Lumbermens, she worked the flex-time CLSU Manager position for ten of those fifteen months.
71. Based on the evidence both sides presented to the court, it was not arbitrary or capricious for the Employee Claim Department to determine that Wilczynski was not disabled under the occupational disability clause of the Kemper Plan as of September 1993. As admitted in the uncontested facts submitted as part of the Final Pretrial Order and during the trial, Wilczynski worked at her job as CLSU Manager on a flex-time schedule, which permitted her to rest or leave work when she was fatigued, for most of her employment with Lumbermens and continuously for the last 10 months of her employment. Lumbermens was prepared to have Wilczynski continue to work as a CLSU Manager under those terms and conditions indefinitely and the evidence showed that prior to going out on leave, her formal job description and performance standards were in the process of being revised to reflect that fact.
72. The medical evidence which was relied upon in making the decision to terminate Wilczynski's benefits as of September 1993 made it clear that as of September 1993 Wilczynski was able to return to the work she was performing before she went on disability leave.
73. The court finds that Lumbermens' Employee Claim Department acted with restraint and came to this resolution only after a full consideration of all issues surrounding Wilczynski's alleged medical condition. Lumbermens' Employee Claim Department retained the services of outside medical case managers to select doctors for the IMEs. It did not terminate her benefits until three independent medical examiners, Dr. Hier, Dr. Cohen and Dr. Wasserman, all indicated that Wilczynski could work continuously as a CLSU Manager in a flex-time environment.
74. The court finds particularly persuasive the medical examination of Dr. Wasserman which took place in September 1993 to which he testified in this proceeding. The court finds that Dr. Wasserman's testimony was credible. The evidence shows that Dr. Wasserman had no relationship with the Defendant prior to this assignment. The evidence also shows he had no long standing relationship with the third party, Ellis & Associates, who selected him, or that providing IME assessments was a significant part of his income. (Tr. at 364-366.) Dr. Wasserman conducted what appears to the court to be a full examination of Wilczynski; the fact that he could find absolutely no objective evidence that Wilczynski was suffering from multiple sclerosis or any other disabling condition convinces the court that Lumbermens did not act arbitrarily or capriciously in denying Wilczynski continuing disability payments after receiving his report.
75. At the time the decision was made to deny future disability benefits to Wilczynski, there was little credible, contrary evidence supporting Wilczynski's claim that she was still totally disabled. Shortly before her disability benefits terminated, Wilczynski's own treating physician, Dr. Kloman, stated in a "functional capacities form" dated November 16, 1993, that she was able to work five hours a day with rest intervals. While Dr. Kloman also stated in another report dated November 9, 1993, that Wilczynski could only come to work one to two days a week, it was not arbitrary or capricious to give minimal weight to Dr. Kloman's evaluation where he offered inconsistent opinions and where, as here, he had not physically examined Wilczynski since April 1993.
76. Wilczynski contends that controlling weight must always be given to the treating physician's opinion. Wilczynski is wrong. To the extent that any of Dr. Kloman's medical evaluation deviated from the opinion of the independent medical examiners, it was not error for the plan administrator not to give controlling weight to a treating physician's opinion. See Donato v. Metropolitan Life Ins. Co., 19 F.3d 375, 382 (7th Cir. 1994); Royster v. Metropolitan Life Ins. Co., 1996 U.S. Dist. LEXIS 14930, No. 94 C 7563, 1996 WL 587546, at *6 (N.D. Ill. October 8, 1996) (J. Norgle) (citations therein). Where "a plan administrator adopts one of multiple competing medical opinions, absent evidence suggesting incompetence of the chosen opinion, its action is not arbitrary." Royster, 1996 WL 587546, at *6. In this case, given the conflicting evaluations of Wilczynski by Dr. Kloman and his limited contact with Wilczynski, it was not arbitrary for Lumbermens to choose not to follow his report.
77. Additionally, the court finds support for the Employee Claim Department's determination to terminate Wilczynski's benefits based on Wilczynski's own testimony that in 1993 she was not taking medication for her alleged fatigue, and that she was walking and standing without the assistance of any ambulatory device. Those facts were particularly significant because Wilczynski lived in a two-story house and was the primary care giver for an infant during the period of her alleged disability.
78. Accordingly, upon consideration of all of the facts which were presented to the Employee Claim Department and during the review process, the court finds that the decision to terminate Wilczynski's disability benefits to be well-grounded in reason.
Wilczynski failed to provide the court with any evidence that any important document or evidence was intentionally disregarded or were overlooked. There is also no evidence that the decisionmakers significantly erred in appreciating the significance of the evidence before them. The evidence in the record shows that the individuals involved in the decision to terminate Wilczynski's disability benefits followed routine established procedures and acted reasonable based on the evidence before them.
B. Wilczynski Failed To Exhaust Her Administrative Remedies
79. In remanding this case, the Seventh Circuit stated:
"If, on remand, Lumbermens is able to come forward with evidence that it did offer Wilczynski the opportunity to review pertinent documents and that counsel rejected the offer and reasserted his all-or-nothing demand, Lumbermens may be entitled to summary judgment on this basis."