United States District Court, N.D. Illinois
January 20, 2004.
DELORES ADAMS, Plaintiff,
CIGNA GROUP INSURANCE LIFE ACCIDENT DISABILITY CO., Defendant
The opinion of the court was delivered by: BLANCHE MANNING, District Judge
MEMORANDUM AND ORDER
Plaintiff Delores Adams brought this action against CIGNA Group
Insurance Life Accident Disability Co. ("CIGNA"), alleging that CIGNA
wrongfully terminated her long term disability benefits ("LTDB"). This
matter comes before this Court on CIGNA's motion for summary judgment,
pursuant to Federal Rule of Civil Procedure 56. For the following
reasons, the motion is DENIED.
This action stems from a long-term disability insurance plan ("the
Plan") established and funded by Adams' former employer, the AT & T.
Corporation ("AT & T"), and administered by CIGNA.
A. Relevant Policy Provisions
At issue in this case is whether Adams was "disabled" as set forth in
the Plan, and therefore entitled to LTDB. To receive benefits under the
Plan, Adams was required to show that she was "unable to do any job for
any employer for which [she] is qualified; or may become reasonably
qualified by training, education, or experience, other than a job that
pays less than 50% of [her] Eligible Base Pay at the time [she] became
B. Claim for Long-Term Disability Benefits
AT&T employed Adams as a customer service representative from
February 2, 1987 to December 5, 1994. On November 30, 1993, almost a year
before she was terminated, Adams went on short-term disability leave, for
which she received benefits from AT & T. After her short-term
benefits expired, Adams completed an application for LTDB under the Plan
on December 1, 1994.
Adams claimed that she qualified for LTDB because she suffered
"systematic dystrophy in her right leg which led her to suffer from
constant pain in her right leg and thigh." As a result of this pain,
Adams contended that she was prevented from sitting, standing, or walking
for long periods of time. The medication which Adams took to relieve the
pain allegedly caused her drowsiness which prevented its use during work
hours. Consequently, Adams asserted that she qualified for LTDB because
she could not engage "in any gainful employment" at that time.
At CIGNA's request, Adams submitted medical records from her doctors.
On March 23, 1995, after reviewing her medical records, CIGNA denied
Adams' claim. This denial was based in large part on the fact that one of
Adams' doctors, Dr. Zelkowita, stated that she could "perform work which
requires no physical activity." Therefore, because her position at AT
& T was "sedentary in nature," CIGNA found that Adams was not
disabled as defined in the Plan.
C. Appeal and Approval of Temporary LTDB
Adams subsequently appealed this denial and submitted records from
another treating physician, Dr. Flimlin, medical director of the Ingalls
Center for Outpatient Rehabilitation, Dr. Flimlin opined that Adams
should be considered disabled until she completed a "functional
restoration program." After reviewing her claim, a CIGNA claims
representative found that: (1) Adams had been "diagnosed with chronic
pain syndrome"; (2) "various treatments . . . have been tried [over]
three years, but with no real improvement in [Adams'] symptoms"; and (3)
the doctors, "who have attempted to diagnose and treat" Adams, "feel
[her] pain is real." Based on this information, the claims representative
stated that CIGNA "should approve this claim." CIGNA subsequently
approved her claim and granted Adams LTDB on a preliminary basis.
D. Termination of LTDB
To make a final determination of her claim, CIGNA scheduled Adams to
take a functional capacities evaluation ("FCE"), so that an occupational
specialist could make a more definite determination as to whether she
qualified for LTDB under the Plan. Adams subsequently underwent two
separate FCEs, one by her own doctor, Dr. Flimlin, and one by an
independent occupational therapist. A FCE measures a person's physical
capacity to perform various types of jobs. Based on the result of the
FCE, Dr. Flimlin opined that Adams would be able to return to "light or
medium work." Likewise, the occupational therapist concluded that Adams
could perform light to medium work. CIGNA also had Adams perform a
"transferable skills study," which identified occupations which she could
perform based on her physical limitations, work experience, and
education. According to this study, Adams could work at a number of
occupations given her physical condition.
Consequently, on November 18, 1996, based on the results of the two
FCEs and the transferable skill study test, CIGNA notified Adams that it
was terminating her LTDB under the Plan because she no longer met the
Plan's definition of disabled.
E. Appeal of the Termination of LTDB
In response to the termination of her benefits, Adams filed several
appeals with CIGNA. In her first appeal, Adams submitted reports from
three doctors, including a report from Dr. Flimlin stating that Adams'
"pain [was reported by her to be] intolerable" and that her condition had
deteriorated. CIGNA, however, denied this appeal because the three
doctors' reports did not contradict their earlier findings that Adams
could perform "light-medium work" and did not contain clinical evidence
in support of their medical conclusions.
Adams subsequently filed a second appeal with a report from Dr.
Flimlin. In her updated report, Dr. Flimlin noted that Adams continued to
suffer a "significant exacerbation of pain" and is now taking several
medications which make her drowsy and unable to "attend task." Based on
this, Dr. Flimlin stated that Adams "is unable to participate in a light
duty sedentary job" and "strongly recommend[s] a permanent disability for
In addition to Dr. Flimlin's updated report, Adams sent CIGNA a
decision from the Social Security Administration ("SSA"), on June 5,
1997, finding that she was disabled as defined by the Social Security Act
and awarding her disability benefits. The SSA found that Adams suffered
"severe . . . pain in the right lower extremity and depression" which
"prevent[s] [her] from performing even sedentary unskilled work." This
conclusion, according to the SSA, is supported by the fact that Adams'
"pain is documented through voluminous medical records over the years
from numerous treating sources."
Despite Dr. Flimlin's new opinion and the decision of the SSA, CIGNA
appeal on the grounds that Dr. Flimlin did not submit any clinical
evidence to support her new opinion. The SSA's award of benefits was
apparently not considered by CIGNA because it was not mentioned in the
denial of her appeal.
After the denial of her second appeal, Adams submitted another letter
from Dr. Flimlin, who again examined Adams in May of 1998. In this
report, the doctor stated that Adams reported a "significant exacerbation
of right lower extremity pain and a new left lower extremity pain" and
difficulty sleeping and performing simple tasks. After performing a
"musculoskeletal exam," Dr. Flimlin found that Adams' "right lower
extremity is swollen" and that she had a loss of strength there. She also
concluded that Adams "was unable to go up on the toes or heel on the
right" and that "[s]he had difficulty sitting in one position for greater
than 2 minutes, needed to change position from sitting to standing."
Based on her exam of Adams, Dr. Flimlin stated that:
My assessment is this patient has had an acute
exacerbation of a chronic right lower extremity
pain. I do not feel that she could tolerate a
light duty sedentary job, as she is unable to
tolerate sitting for greater than 2 minutes or
standing. With a neuro exam, she could recall 1 of
3 objects immediately. I feel that she is also
having difficulty sleeping and emotionally
distraught. . . . I do not feel that she can
participate in a sedentary light duty job and her
clinical exam today has significantly deteriorated
since my last office visit.
To determine the validity of Dr. Flimlin's new diagnosis, CIGNA sent
Adams medical records to Dr. Franz. In contrast to Dr. Flimlin, Dr. Franz
concluded that Adams was not suffering from sympathetic pain syndrome and
was capable of performing "light to sedentary duties." Dr. Franz based
his opinion solely on the fact that Adams did not respond to a
"sympathetic blockade even temporarily," which was a test performed by
Dr. Carobene in June of 1995. Consequently, following the opinion of Dr.
Franz, CIGNA once again denied Adams' LTDB claim.
F. Procedural History
After CIGNA denied her final appeal, Adams filed the instant action in
the Circuit Court of Cook County on March 15, 2002, alleging that CIGNA
"negligently, willfully and wrongfully terminated the contractual rights
of this Plaintiff." CIGNA subsequently removed the case to the United
States District Court of the Northern District of Illinois, Eastern
Division based on 28 U.S.C. § 1441 and 1446 because Adams' complaint
invokes federal question jurisdiction, a violation of the Employee
Retirement Income Security Act ("ERISA") (29 U.S.C. § 1132(a)(1)(B)),
and then moved for summary judgment.
STANDARD OF REVIEW
Because this is a motion for summary judgment for a claim for wrongful
denial of benefits under ERISA, two standards of review govern this
A. Federal Rule of Civil Procedure 56
Summary judgment is appropriate "if the pleadings, deposition, answers
to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(c). See also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Cheek v. Western & Southern Life Ins.
Co., 31 F.3d 497, 500 (7th Cir. 1994). A genuine issue of material
fact is one that might affect the outcome of the lawsuit, and factual
disputes that are irrelevant will not be considered. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In determining
whether a genuine issue of material fact exists, the court must construe
the alleged facts in a light most favorable to the party opposing the
motion. United States v. Diebold, Inc., 369 U.S. 654, 655
(1962); Dale v. Chicago Tribune Co., 797 F.2d 458, 460 (7th
The moving party carries the initial burden of establishing that no
genuine issue of
material fact exists. Fed.R.Civ.P. 56(c); Celotex
Corp., 477 U.S. at 323. Once the moving party has met its burden,
the nonmoving party must set forth specific facts showing that there is a
genuine issue for trial. Fed.R.Civ.P. 56(e); Becker v. Tenenbaum
Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990). The nonmoving
party must do more than "show that there is some metaphysical doubt as to
the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Cop., 475 U.S. 574, 586 (1986). The nonmoving party may not merely
rest upon the allegations or denials in its pleading, but instead, must
"set fourth specific facts showing that there is a genuine issue for
trial." See Anderson, 477 U.S. at 248. If the evidence
presented is "merely colorable" or is not "significantly probative,"
summary judgment may be granted. Id. at 250-51 (citations
B. Judicial Review of a Denial of ERISA Benefits
Under ERISA, de novo review of a denial of benefits is the default
rule, "unless the benefit plan gives the administrator or fiduciary
discretionary authority to determine eligibility for benefits or to
construe the terms of the plan." Postma v. Paul Revere Life Ins,
Co., 223 F.3d 533, 538 (7th Cir. 2000). Where a plan confers such
discretionary authority, a deferential arbitrary and capricious standard
of review applies. Id. For decisions to be subject to this
arbitrary and capricious standard, the plan must "make clear" that its
administrators retain discretionary authority. Herzberger v.
Standard Ins. Co., 205 F.3d 327, 331 (7th Cir. 2000). In
Herzberger, 205 F.3d at 331, the court suggested the following
"safe harbor" language for plans that wish to avoid de novo review:
"[b]enefits under this plan will be paid only if the plan administrator
decides in his discretion that the applicant is entitled to them."
See also Gerlib v. R.R. Donnelley & Sons Co., No. 95 C
7401, 2001 WL 1313794, at *6 (N.D. Ill. Oct. 26, 2001) (applying an
arbitrary and capricious standard of review to a plan that gave its
authority to construe and interpret the Plan, decide all questions
of eligibility and determine the amount, manner and time of payment of
Here, the Plan states that CIGNA, as the claims administrator, has:
the sole and complete discretionary authority to
determine conclusively for all parties, and in
accordance with the terms of the documents or
instruments governing the Plan, any and all
questions arising from the administration of the
Plan and interpretation of all Plan provisions,
determination of all questions arising from the
administration of the Plan and interpretation of
all Plan provisions, determination of all
questions relating to participation of Eligible
Employees . . . and eligibility for benefits,
determination of all relevant facts, the amount
and type of benefits payable to any Eligible
Employee . . . and construction of all terms of
Because the Plan here makes clear that its administrators retain
discretion to determine eligibility for benefits, the decision of CIGNA
will be reviewed under the arbitrary and capricious standard.
In applying the arbitrary and capricious standard of review, courts
examine whether the administrator's denial of benefits was "downright
unreasonable," see Donato v. Met. Life Ins. Co., 19 F.3d 375,
380 (7th Cir. 1994), and will uphold the decision as long as it was based
on a reasonable interpretation of the plan's language and the evidence in
the case. See Infantine v. Waste Management. Inc., 980 F. Supp. 262,
266 (N.D. Ill. 1997). Questions of judgment are left to the
administrator of the plan, and "a court must be very confident that the
administrator overlooked something important or seriously erred in
appreciating the significance of the evidence" to overturn the
administrator's determination. See Patterson v. Caterpillar.
Inc., 70 F.3d 503, 505 (7th Cir. 1995).
With the above standards in mind, the question before this Court is
whether CIGNA's decision not to reinstate Adams' LTDB after receiving Dr.
Flimin's updated reports and the decision of the SSA was "downright
unreasonable."*fn2 CIGNA contends that "the evidence in this case
precludes [Adams], as a matter of law, from establishing that CIGNA acted
unreasonable in finding that she was not disabled from any occupation."
In response, Adams appears to argue that Dr. Flimin's updated reports and
the decision of the SSA present a question of fact as to whether the
reasons given by CIGNA for denying Adams' appeal for reinstatement of her
LTDB under the Plan were reasonable.*fn3
To determine whether CIGNA's decision was "down right unreasonable,"
the Court will first examine the language in the Plan. To receive LTDB
under the Plan, Adams was required to show that she was "unable to do any
job for any employer for which [she] is qualified; or may become
reasonably qualified by training, education, or experience, other than a
job that pays less than 50% of [her] Eligible Base Pay at the time [she]
Cigna contends that its decision cannot he found unreasonable because
Dr. Franz's report "establishes a reasonable basis for [its] finding that
[Adams] was not disabled." On November 16, 1998, after reviewing Adams'
medical records but not examining Adams, Dr. Franz
concluded that Adams was not suffering from sympathetic pain
syndrome and was capable of performing "light to sedentary duties."
Consequently, this Court must examine ClGNA's decision in light of the
contradictory findings of Dr. Flimlin and the SSA versus Dr. Franz's
In Black & Decker Disability Plan v. Nord, ___ U.S.
___, 123 S.Ct. 1965, 1967 (2003), the Supreme Court struck down the
"treating physician rule," in holding that "plan administrators are not
obligated to accord special deference to the opinions of treating
physicians." The Court noted, however, that plan administrators "may not
arbitrarily refuse to credit a claimant's reliable evidence, including
the opinions of the treating physician." Id. at 1972.
Consequently, in light of the Supreme Court's decision in
Nord, it appears to this Court that "[t]he findings of treating
physicians are [still] entitled to some weight," and "[i]n cases which
the plan administrator rejects the findings of the claimants treating
physician, the court must evaluate whether such a rejection is rational
and justifiable." Houston v. Provident Life and Accident Ins.
Co., 2002 WL 31779921, at *6 (N.D. Ill. Dec. 11, 2002) (finding
denial of LTDB arbitrary and capricious, despite finding by non-examining
physician that claimant was not disabled).
Where an independent physician reviews, the claimant's medical records
without performing an exam, the physician's conclusions must be supported
by competent medical evidence. See Hightsue v. AIG Life Ins.
Co., 135 F.3d 1144, 1148 (7th Cir. 1998). Several courts have found
the denial of LTDB arbitrary and capricious, where the decision was based
on a conclusion by a non-examining physician whose "opinion was based
upon incomplete information" and who did not "take into account the
results of relevant objective medical tests." Houston, 2002 WL
31779921, at *7. See also Carugati v. Long Term Disability Plan for
Employees, 2002 WL 441479, at *6 (N.D. Ill. Mar. 21,
2002) (finding denial of LTDB arbitrary and capricious, where decision
was based on conclusion by non-examining physician who did not examine
the entire medical record and discounted relevant medical evidence).
Here, after reviewing the entire administrative record, this Court
finds a number of problems with CIGNA's reliance on Dr. Franz's
conclusion. First and foremost, the Court notes that Dr. Franz, who
completed his review on November 16, 1998, based his opinion entirely on
the fact that Adams did not respond to a "sympathetic blockade even
temporarily," which was a test performed by Dr. Carobene in June of 1995.
The problem with relying on Dr. Carobene's exam is that it was conducted
in June of 1995, well before Dr. Flimin's updated reports, in October
1997 and May 1998, and the decision of the SSA, in June of 1997. Dr.
Franz's report states that he obtained the reports from Dr. Flimin. In
his report, however, Dr. Franz did not even discuss Dr. Flimlin's October
1997 and May 1998 reports, let alone address whether they were valid. As
for the SSA report, it is not even mentioned in Dr. Franz's report.
As discussed in detail above, in his May 1998 report, after
administering a "musculoskeletal exam," Dr. Flimlin found that: (1)
Adams' condition had significantly worsened; (2) her "right lower
extremity is swollen"; (3) she had a loss of strength as demonstrated by
the fact that she "was unable to go up on the toes or heel on the right";
and (4) "[s]he had difficulty sitting in one position for greater than 2
minutes, needed to change position from sitting to standing." Based on
her exam of Adams, Dr. Flimlin opined that Adams "had an acute
exacerbation of a chronic right lower extremity pain" and that she "could
not tolerate a light duty sedentary job, as she is unable to tolerate
sitting for greater than 2 minutes or standing."
Similarly, on June 5, 1997, the SSA found that Adams suffered "severe
. . . pain in the
right lower extremity and depression" which "prevent [her] from
performing even sedentary unskilled work." This conclusion, according to
the SSA, is supported by the fact that Adams' "pain is documented
throughout voluminous medical records over the years from numerous
CIGNA contends that this Court should not consider Dr. Flimlin's report
or the decision of the SSA. According to CIGNA, Dr. Flimlin's opinion
that Adam's condition had worsened was "not supported by clinical
evidence" and did not explain "how" her condition had changed. While this
might be true for the October 1997 report, as explained above, Dr.
Flimlin's May 1998 report was based on a "musculoskeletal exam" and her
long-time experience treating Adams' condition.*fn4 As for how her
condition changed, this would seem irrelevant so long as it was the
original condition for which she was denied benefits. A number of courts
have found claimants to be disabled where their conditions had worsened
over time, without the examining physicians explaining precisely how the
condition worsened. See, e.g., Ladd v. IIT Corp., 148 F.3d 753,
754 (7th Cir. 1998); Poulos v. Motorola Long Term Disability
Plan, 93 F. Supp.2d 926, 931 (N.D. Ill. 2000). Moreover, Dr. Flimin
opined that, based on his exam, Adam's changed condition was the result
of "an acute exacerbation of a chronic right lower extremity pain." In
this Court's view, this finding seems to explain how and why Adams'
condition changed for the worse.
CIGNA also contends that Dr. Flimlin's report and the SSA's decision
are irrelevant because Adam's "benefits were terminated effective
November 1996." CIGNA bases this
contention on the fact the Plan states that benefits expire when
the participant recovers. While this might be true, there is nothing in
the record to show that Adams ever recovered from her malady. Rather, the
medical opinions which led CIGNA to terminate her LTDB simply found that
she could perform light to sedentary work, not that she had recovered
from the ailment in her right extremity. Moreover, a number of courts
have found that a claimant became disabled after her condition worsened,
when at first she was found not to be totally disabled. See, e.g.,
Ladd, 148 F.3d at 754; Poulos, 93 F. Supp.2d at 931.
Therefore, the Court finds this contention unavailing.
Additionally, CIGNA contends that the SSA's decision was irrelevant to
its decision because "ERISA does not require the claim administrator to
follow the SSA's disability determination." While it is true that CIGNA
did not need to follow the decision of the SSA, it does not appear that
CIGNA even considered it or that it gave it to Dr. Franz in his
examination of the medical records. As such, this Court finds that
CIGNA's decision was not based on a complete review if the record.
See, e.g., Coles v. LaSalle Partners Inc. Disability Plan, 2003
WL 22400710, at * 3-5 (N.D. Ill. Oct. 17, 2003).
Consequently, based on the fact that Dr. Franz based his report on a
dated test conducted by another physician and failed to take into
consideration or discuss Dr. Flimlin's May 1998 report or the SSA's
determination, this Court finds that a genuine issue of material fact
exists as to whether the reasons given by CIGNA for denying Adams' appeal
for reinstatement of her LTDB under the Plan were " downright
unreasonable." As such, even under the "arbitrary and capricious"
standard, this Court cannot at this time grant CIGNA's Motion for Summary
For the foregoing reasons, this Court DENIES Defendant CIGNA Group
Insurance Life Accident Disability Co.'s Motion for Summary Judgment