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March 4, 2003


The opinion of the court was delivered by: Harry D. Leinenweber, Judge United States District Court


The plaintiff, Rochelle Bolden ("Bolden"), was employed by Northwestern Memorial Hospital ("Northwestern") as a Senior Financial Associate. The defendant, Unum Life Insurance Company of America ("Unum"), issued a group long-term disability policy to Northwestern, with its employees as beneficiaries. The parties agree that the policy constituted a group employee benefit plan which is subject to the Employee Retirement and Income Security Act of 1974, 29 U.S.C. § 1002 § (1). The policy provides a maximum benefit period of 24 months for disabilities, including mental illness and self-reporting, i.e., subjective, symptoms, that limit the employee from performing "the material and substantial duties of [the employee's] regular occupation." If the disability continues beyond 24 months, is due to injury or sickness other than mental illness or self-reported symptoms, and "Unum determines that" due to the same sickness or injury, the employee is unable to perform "the duties of any gainful occupation for which [the employee is] reasonably fitted by education, training or experience," Unum will pay disability benefits for the period of disability until the employee attains the age of 65 years.

In addition to the policy of insurance, (Unum provides what it describes as a "CERTIFICATE SECTION" which contains the following language: "When making a benefit determination under the policy, UNUM has discretionary authority to determine your eligibility for benefits and to interpret the terms and provisions of the policy." The certificate also contains the following: "It the terms and provisions of the certificate of coverage (issued to you) are different from the policy (issued to the policy holder) the policy will govern." (See P. CC.FP-1 FOUND AT Administrative Record, Vol. 1, UACL 00381). As we have seen, the policy itself merely provides that a person is considered disabled "when Unum determines" that he is. (See P. LTD-BEN-1 Found at Administrative Record Vol. 1, UACL 00377).

From March 2, 2000 through March 1, 2002, Unum provided Bolden with monthly disability benefits due to a psychiatric disability. She claimed that she had been unable to work since December 8, 1999, due to stress, anxiety attacks, and hypertension. She submitted two attending physician statements from her treating physicians, Dr. William Ciganek, a psychiatrist, and Dr. Robert Golden, an internist. Dr. Ciganek diagnosed her as having a "panic disorder" and restricted her from work which he considered to be the principal precipitant for her anxiety. Based on the 24-month limitation of disability payments for mental illness, Unum advised Bolden, by letter dated March 5, 2002, that it was denying benefits after that date.

At that time, in addition to her psychiatric problems, Bolden was complaining of a litany of other ailments, including hypertension, anemia, asthma, knee pain, and fibromyalgia. Apparently her first complaints of physical, as opposed to mental, problems occurred in 2001 when she was examined for knee pain. She was seen and treated by Dr. Steven Stern, an orthopedic specialist. He concluded that she needed weight reduction (she apparently weighted 250 pounds) and exercise. Dr. Stern had noted that she walked without a limp and did not need surgery. Unum reviewed these records and concluded that Bolden had provided Unum with insufficient evidence of a physical impairment. it was on this basis that her claim for continuation of benefits was denied.

Bolden requested her first appeal on March 12, 2002. Dr. Thomas Reeder, Unum's Medical Director, reviewed her entire claim file and, based on his recommendation, Unum upheld its denial by letter dated April 1, 2002. Bolden again appealed and at this time submitted a letter from Dr. Golden and a report that he had received from Dr. Herbert Rubinstein, a rheumatologist to whom Dr. Golden had referred Bolden. Dr. Rubinstein diagnosed Bolden as having fibromyalgia, a condition that limits activities due to pain, but he failed to indicate any restrictions or limitations on Bolden's ability to work. Dr. Reeder again reviewed Bolden claim file and concluded that Dr. Rubinstein had invalidly made his diagnosis of Fibromyalgia, and that he had failed to substantiate the claim of inability to work due to physical impairment. On June 2, 2002, Unum notified Bolden that her appeal had been denied and that she ha exhausted her appeal rights. Bolden now brings her claim in this court under ERISA. Both parties have moved for summary judgment.


According to Bolden's psychiatrist, Dr. Ciganek, Bolden was extremely impaired by symptoms of anxiety and depression. Based on his findings Unum concluded that Bolden was impaired by mental illness and was disabled. Apparently this was the basis for Bolden's first appeal which was filed on March 12, 2002. Unum reviewed the records and concluded that she had not proved that she was physically disabled. It denied her first appeal by letter of April 1, 2002. Bolden again appealed and this time supplemented her appeal with a letter from Dr. Rubenstein. This appeal was denied by Unum on June 3, 2002 and was based on a review by an Unum reviewing physician, Dr. Thomas A. Reeder. He stated that in his opinion, Dr. Rubinstein had not properly documented his diagnosis of fibromyalgia and that Bolden had not submitted information that would support the fact that she was unable to perform a sedentary occupation. The evidence submitted by Bolden consisted of letters from Dr. Golden and Rubinstein. Golden stated that Bolden's "activity was limited by virtue of chronic pain from fibromyalgia." Dr. Rubinstein did not opine on any limitations she might be subject to.

The first issue is the standard of review to be exercised. Bolden contends that it is de novo and Unum contends it is arbitrary and capricious. The standard of review is determined by the presence or absence of discretion on the part of the plan administrator. If the administrator is granted discretion to interpret or to apply the terms of the plan, judicial review is curtailed and limited to cases where the administrator has acted arbitrarily and capriciously. If no discretion is granted, the court gives full plenary review of the decisions of the administrator. Herzberger v. Standard Insurance Co., 205 F.3d 327, 330 (7th Cir. 2000). Herzberger holds that plan language granting the plan administrator the power "to determine" eligibility does not give the employee adequate notice that the administrator has the power to make judgments largely unreviewable by the courts. On the other hand, plan language that clearly grants the administrator discretionary authority to make eligibility decisions are subject to the arbitrary and capricious standard.

The administrative record contains the policy in question and, as we have seen, the Certificate contains provisions that are inconsistent with those contained in the policy as to whether the administrator has discretionary authority to determine disability. The Certificate states that UNUM has "discretionary authority" to determine eligibility for benefits and to interpret the terms and provisions of the policy, which is sufficient under Herzberger, but the policy itself states that an employee is disabled when "Unum determines," clearly insufficient under Herzberger. However the Certificate itself contains language that causes the Policy language to trump the Certificate language: "if the terms and provisions of the certificate of coverage (issued to you) are different from the policy (issued to the policyholder), the policy will govern." Thus, the court will apply de novo review of Unum's denial of benefits.

Under the de novo review the court has no trouble finding that Bolden has substantiated that she is afflicted with fibromyalgia. Her board — certified rheumatologist clearly diagnosed this condition and it is this Court's finding that Dr. Reeder's criticism does not stand up against the clearly stated diagnosis of the attending physician and specialist. Dr. Reeder states that a rheumatologist must find at least 11 out of 18 trigger points to make a diagnosis of fibromyalgia and takes issue with Rubinstein because he did not mention a specific number but mere stated that he found "multiple" trigger points. This clearly amounts to nitpicking.

However Reeder is on far more secure ground on his alternative basis for denying coverage, i.e., that none of Bolden's doctors had opined about the nature and extent of her disability. Bolden supported her first appeal with a proximately 21 pages of medical records from Dr. Gordon's office. These records, reviewed for Unum by Dr. Reeder, for the first time mentioned a possible diagnosis of fibromyalgia, but Dr. Gordon failed to document this condition or to describe any specific physical impairment or loss of functional capacity that she might have. On April 1, 2002, Unum denied the appeal with a three-page written letter, advising Bolden that Unum found no medical evidence of impairment that precluded sedentary capacity.

After April 23, 2002, Dr. Golden submitted a report, dated April 17, 2002, that he had received from Dr. Rubinstein, which clearly states that Bolden had fibromyalgia. Physical exams showed that upon walking she favored her right leg. This was the only described physical limitation. On April 24, 2002 Golden faxed a letter to Unum stating that Bolden's "activity is limited" by the pain from fibromyalgia. He failed, however, to describe the extent of the limitation. On April 26, 2002, Unum responded to Bolden advising her that the medical information she submitted did not provide "any restrictions and limitations" resulting from the diagnoses. The letter concluded with a request that Bolden provide Unum with any additional medical information, including from her physician a list of "the activities you cannot and should not do. . . ." In response Unum received from Dr. Rubinstein a letter dated May 1, 2002, limited to a statement of the basis for his diagnosis of fibromyalgia. On May 13, 2002, Unum received a letter from Dr. Rubinstein stating that he couldn't add anything to his May 1, 2002 letter, and on May 22, 2002, Unum received Rubinstein's office treatment notes, which indicated that on April 16, 2002, Bolden "has trouble getting around — whole body aching; a.m. stiffness." On May 1, 2002, his notes indicate "FM unchanged. Widespread pain." These documents were reviewed by Dr. Reeder. His conclusion was communicated to Bolden by letter dated June 3, 2002. In this letter Unum advised Bolden that, based on Dr. Reeder's review, it disagreed with the diagnosis of fibromyalgia and that the additional documentation supplied did not confirm impairment nor assess daily activities.

The policy clearly provides for a tougher standard for disability extending disability coverage beyond 24 months. Prior to that point the question for determination is whether the claimant can perform the duties of her job. After 24 months, the standard becomes much tougher, i.e., whether the claimant is "unable to perform the duties of any gainful occupation for which you are reasonable fitted by education, training or experience." (Emphasis supplied). Bolden wholly failed to provide any support, prior to Unum's final denial on June 3, 2002, that she came even close to the policy definition of disability after 24 months. She simply has not demonstrated that she was not capable of any gainful employment to which she was reasonably fitted. While fibromyalgia is a competent pain producing condition, it can be but is not necessarily disabling. See, "Fibromyalgia and Exercise,", Copyright 2001 by the American Academy of Family Physicians. The cases cited by Bolden finding disability resulting from fibromyalgia ...

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