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HILLOCK v. CONTINENTAL CASUALTY COMPANY

March 1, 2004.

SANDRA A. HILLOCK, Plaintiff,
v.
CONTINENTAL CASUALTY COMPANY, a CNA Company Defendant



The opinion of the court was delivered by: JOHN NORDBERG, Senior District Judge

MEMORANDUM OPINION AND ORDER

This is an ERISA case challenging an administrator's decision to deny long-term disability benefits. Before the court are cross-motions for summary judgment. For the reasons set forth below, we grant summary judgment in favor of plaintiff Sandra A. Hillock and against defendant Continental Casualty Company, a CNA Company ("CNA").

BACKGROUND*fn1

  In 1997, Sandra Hillock began working for CF Industries, Inc. ("CF Industries"). As an employee, she was a participant in her employer's disability income insurance policy underwritten by CNA (Policy No. SR-83078179).*fn2 Page 2

  In May of 1999, Hillock was in a car accident and injured her back. An MRI taken after the accident revealed a herniated disk at C3-4, canal and foraminal narrowing at C4-5, C5-6, and C6-7 and disc protrusions at the T 1-2 level. (R 154.)*fn3 Hillock had surgery to correct these problems. But the surgery did not eliminate her symptoms as she continued to experience numbness in her hands, pain her neck, bodily pain, sleep disruptions, and other problems.

  On February 3, 2000, Hillock underwent a second surgery to alleviate the ongoing pain. Dr. Russell Nockles performed anterior C5-6 and C6-7 microdiskectomy and fusion surgery. In a follow-up visit to Dr. Nockles' office four months later, Hillock indicated that she still experienced fatigue, soreness, and low back pain that was not relieved by Tylenol. (R 106.) On December 27, 2000, another MRI was taken, which indicated that Hillock still suffered from damage to her spine.*fn4

  Based on these problems and the continuing pain, Hillock's primary care physician, Dr. Erin Davis, advised her to quit working. Following this advice, she stopped working on February 27, 2001. At the time, she was 56 years old and was making approximately $3,071.20 a month. Page 3

  Hillock then applied for disability benefits. Under the policy, there was a 180-day waiting period between the date of onset of the disability and the date benefits start. In this case, this period ran from February 27, 2001 through August 28, 2001. To qualify as disabled under this policy, Hillock is required to provide "objective medical findings" demonstrating that she is "continuously disabled" during this elimination period, which meant that she could not perform the "material and substantial duties" of her job.*fn5 If she is considered disabled, she will receive 60% of her monthly wages subject to coordination with her social security benefits. Such benefits would be paid until she either no longer satisfied the definition of "disability," died, or reached the age of 65.

  Hillock's employer submitted her claim for long-term disability benefits to CNA on August 16, 2001. In support of her application, Hillock, her employer, and her primary care physician filled out forms required by CNA and submitted medical records. Hillock filled out a CNA form entitled LTD Employee's Statement and one entitled Employee's Job Activities Statement. (R 150, 158-59.) On the Employee's Statement, she indicated that she was injured in a car accident, suffered from spinal damage, and listed 5 physicians she had consulted about her condition: (1) Dr. Davis, (2) Dr. Nockles, (3) Dr. Cross, (4) Dr. Young, and (5) Dr. Sliwa. (R. 150.) On the Job Activities Statement, she stated: "severe headaches, neck & arm pain, [and] numbness occur throughout the work day, no matter what task is performed." (R 159.) She also estimated that a typical work day involved 7 hours sitting, 15 minutes standing, 30 minutes walking, and 30 minutes bending. (R 158.) Page 4

  On the Employer's Job Activities Statement, which is similar to the employee's form, CF Industries stated that Hillock worked as an administrative assistant to the vice president of marketing and sales and that her job activities were as follows: "coordinates schedules, travel, handles phone, correspondence, files, office mgt." (R 156.) CF Industries also answered the question about Hillock's typical work day, stating that she spent 5 hours sitting, 2 hours standing, and 1 hour walking and that she spent 50% of her time working with other people. (Id.)

  Dr. Davis completed the Physician's Statement, which is another form required by CNA. (R 151-52.) Dr. Davis listed under the diagnosis section that Hillock had chronic neck pain, myofascial pain, degenerative disc disease, and cervical fusion surgery. As for complications, Dr. Davis stated that Hillock suffered from chronic pain, poor posture, and poor mobility. (R 151.) In response to the physical limitations question, Dr. Davis indicated that Hillock was unable to lift any weight, cannot stand or sit for long periods of time, and that her concentration was affected secondary to pain. (R 152.) As for Hillock's prognosis, Dr. Davis stated that "prognosis is poor," that "[n]o further surgery will help," and that Hillock will "have significant pain for the rest of her life." (Id.) In addition to completing the Physician Statement, Dr. Davis also attached two MRI reports to substantiate these findings. (R 153-55.)

  The initial review of the application was made by Lydia Myers, whose job title is "disability specialist." In addition to reviewing the materials cited above, Myers conducted a telephone interview with Hillock on September 7, 2001. In this interview, according to Myers' notes, Hillock stated that she has pain in her neck, shoulders, arms, and hands, has "almost constant" headaches, and has difficulty lifting her right arm. (R 139-41.) Hillock also stated that she was going to physical therapy since her accident in an effort to lessen her pain and that she Page 5 takes pain medication to be able to sleep at night. Myers also asked Hillock about her typical daily activities. Hillock stated that she did some gardening, grocery shopping, and a few other activities around the house like checking her email.

  Five days later, in a September 12, 2001 letter, Myers informed Hillock that CNA had denied her claim for long-term disability benefits. This letter serves as the most comprehensive explanation for CNA's decision. We quote the substantive portion of this letter in full:
Dr. Erin Davis states in the Physician's Statement that your complications/ symptoms are, "chronic pain, poor posture, poor mobility." Physical limitations noted by Dr. Davis include, "Patient unable to lift any weight. Cannot stand or sit for long periods of time. Concentration affected secondary to pain."
According to the Employer and Employee Job Activities Statements, as an Administrative Assistant, you have the option of sitting or standing throughout the work day. No lifting or carrying is required. A headset is provided for telephone usage.
According to the Employee Interview conducted with you on 09/07/01, you stated that your Activities of Daily Living consist of gardening, pulling weeds, watering the grass, cooking, grocery shopping, and light housework. You are able to care for your personal needs without difficulty. You are also able to take short walks, check email on your home compute[r], and sit up to 20 minutes at an interval.
At this time, although we acknowledge that you have a condition, the information provided does not support that you are unable to perform the material and substantial duties of your occupation as an Administrative Assistant. The sit or stand option of your job would allow you to alternate positions as necessary. No lifting or carrying of any weight is required.
(R 132-133.)

  Hillock subsequently asked CNA to reconsider the decision and submitted a letter objecting to, among other things, CNA's description of her typical daily activities. She also submitted additional medical evidence consisting of a report from Dr. Sliwa, an exercise physiologist, who examined her on one occasion in June 2001. Page 6

  In a letter dated October 12, 2001, CNA denied Hillock's request for reconsideration, stating that it did not find any reason to alter its earlier analysis. As for the new report by Dr. Sliwa, CNA concluded that it indicated that Hillock ...


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