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WILCZYNSKI v. KEMPER NAT'L INS. COS.

March 23, 1998

Faith Wilczynski, Plaintiff,
v.
Kemper National Insurance Companies, Defendant.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 A bench trial was held in this matter from February 14, 1997, through February 24, 1997. After hearing the evidence and arguments at trial, the court enters the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52. As the issues in this matter have been tried and a decision has been rendered, judgment is entered in favor of Defendant, Kemper National Insurance Companies, and against Plaintiff, Faith Wilczynski, on all counts.

 I. FINDINGS OF FACT

 A. Faith Wilczynski's Work At Lumbermens Mutual Casualty Company

 1. The parties stipulated that Plaintiff, Faith Wilczynski ("Wilczynski"), was hired April 30, 1990, by Lumbermens Mutual Casualty Company ("Lumbermens"), *fn1" an insurance company, as a Commercial Lines Support Unit ("CLSU") Manager responsible for overseeing clerical units that included policy underwriting, rating and clerical support. *fn2"

 2. After only working at Lumbermens for approximately five months on a full-time basis, Wilczynski informed her supervisor, Frank Kobel, in September 1990 that she had multiple sclerosis ("MS") and that her work hours had to be decreased. (Tr. at 311.)

 4. For the remainder of the time she actively worked at Lumbermens, Wilczynski's duties were limited to what she could get accomplished during the time she was in the office. (Tr. at 303.) As such, her job responsibilities were adjusted to accommodate her restricted hours. (Tr. at 301-302, 313-314.)

 5. In light of Faith Wilczynski's restricted hours, Kobel wanted Wilczynski to agree on what she would and would not do when she was in the office so that she could be held accountable for what was accomplished during the time she was at work. (Tr. at 318, D. Ex. 28.)

 6. In 1991, Kobel met with Wilczynski on at least four occasions to agree on how her job would be performed based on her restricted hours. (Tr. at 320-330, D. Ex. 25, D. Ex. 29.)

 7. Kobel and Wilczynski drafted a revised position description and performance standards which were presented to the Kemper Human Relations Department. Human Resource Manager, Vickie Laures ("Laures"), reminded Kobel to only evaluate Wilczynski on what she accomplished while working. In a memo from Laures to Kobel, she stated "again, when or how much she is at work is not our issue. What she does while she is at work and how we will hold her accountable is the issue." (Tr. at 331-336, D. Ex. 24, D. Ex. 26.)

 8. From the period of September 1990, until July 11, 1991, Wilczynski worked for Lumbermens on a flex-time schedule which permitted her to leave work when she became fatigued. (Tr. at 42.) Wilczynski worked an average of five to six hours a day during these ten months, pacing herself according to how she felt at a given moment in time. (Tr. at 27, 95.)

 9. Wilczynski admitted that she was never given a warning that she would be fired if she did not go back to work full-time. (Tr. at 29-33, 95-97, 331, 338.) In fact, Kobel's understanding was that Wilczynski would continue to work at her position on a flex-time schedule indefinitely. (Tr. at 339.)

 10. Wilczynski went on a leave of absence on July 11, 1991, due to complications with a pregnancy. (Tr. at 44-45, 602.) Although Wilczynski left the work force on July 11, 1991, Lumbermens was prepared to continue to accommodate Wilczynski's flex-time schedule on a permanent basis. (Tr. at 339.)

 11. While still on disability leave, Wilczynski was informed on October 29, 1991, that her CLSU Manager position was being eliminated due to business necessity but was offered a rating position with the company. (Tr. at 344-346.) Although Wilczynski indicated that it was doubtful she would accept the rating position, Lumbermens held the position open for three to four months in the event she changed her mind. (Tr. at 345, 346.)

 12. From July 11, 1991, until March 1992, Wilczynski claimed total disability due first to the pregnancy and then to a kidney problem. *fn4" In April 1992, Wilczynski began to claim that she was disabled from working due to a worsening case of multiple sclerosis. She never attempted to return to work at Lumbermens.

 B. Long Term Disability Benefits Under The Kemper Plan

 13. As a Lumbermens' employee, Wilczynski exercised her right to purchase long term disability insurance from the Kemper National Insurance Companies' Long Term Disability Plan ("Kemper Plan"). *fn5" The Kemper Plan, in effect in July 1991, provided benefits for participating employees of Lumbermens for disabilities resulting from injury or sickness. (Tr. at 595, 596, D. Ex. 1.)

 14. Under the Kemper Plan, the standard for eligibility to receive long term disability benefits during the first 24 months that benefits are payable is that the employee is "unable to perform each of the material and substantial duties of his work with [Lumbermens]." (D. Ex. 1.) The standard for eligibility to continue receiving long term disability benefits after the first 24 months that benefits are payable is that the employee is "unable to perform each of the material and substantial duties of any employment for which [the employee is] reasonably fitted by education, training or experience." *fn6" (D. Ex. 1.)

 15. Under the Kemper Plan, an employee is eligible to receive long term disability benefits after a 13-week elimination period. (Tr. at 597.) In order to receive benefits, "[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." (P. Ex. 1, D. Ex. 1.) The Kemper Plan also specifies that "the Company may require confirmation of a continuing disability at reasonable intervals through submission of a new form" and that independent examinations may be required to determine validity of a claim. (P. Ex. 1, D. Ex. 1.)

 16. From 1991 through 1993, Lumbermens' Employee Claim Department administered claims for long term disability benefits under the Kemper Plan. (Tr. at 594.) During this period of time, Deborah Bierwirth was a technical supervisor in the Employee Claim Department responsible for administering disability claims, including the claims of Wilczynski. (Tr. at 595, 600, 601, 652.)

 17. The Employee Claim Department interpreted the term "work" under the Kemper Plan's occupational disability clause as what the employee was doing at the time of disability. (Tr. at 599, 654, 655.) This would be accomplished by looking at both the position description and the information filled out by an employee's supervisor on an occupational analysis form to determine what the employee's work was at the time of the disability. (Tr. at 599, 654.)

 C. Faith Wilczynski's Disability Benefits

 18. Wilczynski submitted forms to the Employee Claim Department in an effort to certify her disability from July 1991 forward. (Tr. at 45, 46.)

 19. As already noted, beginning in or around April 1992, the Employee Claim Department began receiving forms from physicians stating that Wilczynski was totally disabled due to multiple sclerosis ("MS"). *fn7" (Tr. at 602, 603.) Specifically, in April 1992, the Employee Claim Department received information from a Dr. Timothy Martin advising that Wilczynski was disabled from working due to MS. (Tr. at 603, 604.)

 20. Pursuant to the Kemper Plan, Wilczynski was asked to submit to an independent medical examination ("IME") to substantiate her alleged disability. (Tr. at 604, 605.) The Employee Claim Department retained the services of a medical case management service, Crawford & Company, to select a doctor to perform the independent medical examination ("IME"). (Tr. at 604, 605.) Crawford & Company selected Dr. Daniel Hier, then Chairman of the Department of Neurology of the University of Illinois Hospital. (Tr. at 123, 605, 606.)

 22. The Employee Claim Department then sent Wilczynski's current treating physician, Dr. Timothy Martin, a copy of Dr. Hier's report to inquire whether he agreed with Dr. Hier's conclusions. (Tr. at 608.) In November 1992, the Employee Claim Department received written confirmation from Dr. Martin that he agreed with Dr. Hier's opinion that the diagnosis of MS was uncertain and that he was no longer going to certify Wilczynski as disabled. (Tr. at 608-611, D. Ex. 44.)

 23. Even though her treating physician and an independent physician both concurred she was not disabled due to MS, the Employee Claim Department did not terminate Wilczynski's disability benefits at this time because Wilczynski stated that she was now being treated by a new physician, Dr. Geiger. (Tr. at 614.) Dr. Geiger sent a form to the Employee Claim Department stating Wilczynski was "disabled through indefinitely because of MS. . . ." As a result of Dr. Geiger's assessment, the Employee Claims Department sought a second IME to try and clear up the confusion. (Tr. at 615.)

 24. Crawford & Company selected Dr. Bruce Cohen of Northwestern Memorial Hospital to perform the exam. (Tr. at 616.) Wilczynski was examined by Dr. Cohen in January 1993. (Tr. at 124, 127, 616.) Dr. Cohen submitted a report detailing the results of his exam which concluded that Wilczynski could perform "continued occupational activity" on an adjusted level. (Tr. at 616, 617, D. Ex. 34 at p. 6.) The adjustment to which Dr. Cohen refers to in his report is rest periods during the day--something Lumbermens had already been providing to Wilczynski for the ten months prior to the time she went out on disability leave. (D. Ex. 34.)

 25. At this point in time, Bierwirth recommended to her manager, Kathy Krautwurst, that Wilczynski's benefits should be terminated based upon the opinion of her treating doctor and the two doctors that performed independent medical exams that she was not disabled from working. (Tr. at 617, 618.) However, Krautwurst suggested that prior to making such a determination, a medical case manager should be retained to help facilitate a return to work for Wilczynski. (Tr. at 620, 621.)

 26. During this same time period, Dr. Geiger, who had been certifying Wilczynski's disability forms, informed the Employee Claim Department in January 1993 that he was neither a neurologist nor an expert on MS, and had recommended to Wilczynski that she should be seen by a neurologist. (Tr. at 622.) Subsequent to Dr. Geiger's letter, Wilczynski, according to her own testimony, began to "doctor shop." (Tr. at 114.)

 27. Accordingly, Wilczynski informed the Employee Claim Department that a Dr. Markovitz would be certifying her disability. (Tr. at 622.) Shortly thereafter, Wilczynski switched from Dr. Markovitz to a Dr. Zelkowitz. (Tr. at 623-624, 627.) Neither Dr. Markovitz nor Dr. Zelkowitz ever submitted a report to the Employee Claim Department detailing their examination of Wilczynski, even though this information had been requested from both doctors. *fn8" (Tr. at 628-629, 630.) Both of these treating doctors only saw Wilczynski one time. (Tr. at 51, 52.)

 28. In April 1993, Wilczynski informed the Employee Claim Department that she now had selected a third doctor, Dr. Kloman, as her new treating physician. (Tr. at 627, 628.) Dr. Kloman was not a board certified neurologist in 1993. (P. Ex. 2 at p. 58, 59.) Dr. Kloman certified Wilczynski as being disabled due to MS in April 1993. His primary basis for determining that Wilczynski was disabled was that (1) her multiple sclerosis caused her to become extremely fatigued; and (2) her multiple sclerosis caused Wilczynski to have problems with her balance. (P. Ex. 2 at p. 70, 71 and Kloman Deposition Exhibit 4.) *fn9" At that time, the Employee Claim Department requested that Dr. Kloman fill out a functional capacity evaluation form regarding Wilczynski's functional capacities. (Tr. at 631, 632.) Between May 1993 and November 1993, the Employee Claim Department did not receive any medical information from any doctor about Wilczynski or any confirmation that she had been examined by any doctor during that time period. (Tr. at 632, 633.) Wilczynski continued to receive disability benefits during this time.

 29. April 1993 was the first and last time that Dr. Kloman physically examined Wilczynski in 1993. (P. Ex. 2 at p. 88.) After this evaluation, Kloman's treatment of Wilczynski in 1993 was limited to telephone conversations. (Tr. at 169, 224-225.) Kloman never conducted any diagnostic tests on Wilczynski in 1993, and Kloman never prescribed any medication for Wilczynski in 1993. (Tr. at 164, P. Ex. 2 at p. 63-66.) Additionally, she was using no ambulatory devices of any kind to help her with her alleged balance problem. *fn10"

 30. In July 1993, Wilczynski was asked to undergo a third IME because she was within six months of reaching the Kemper Plan's second definition, the "general disability clause," of a long term disability. (Tr. at 633.) It was the practice of the Employee Claim Department to have a claimant undergo an IME before the second definition became applicable to his/her claim. (Tr. at 633.) The Employee Claim Department retained Ellis & Associates in July 1993 to select a doctor for the third IME. (Tr. at 127, 635.) The ...


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