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WOLFF v. CONTINENTAL CASUALTY COMPANY

September 28, 2004.

JEFFREY WOLFF, Plaintiff,
v.
CONTINENTAL CASUALTY COMPANY, a CNA Company, Defendant.



The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Jeffrey Wolff ("Wolff"), filed this suit against defendant, Continental Casualty Company, a CNA Company ("Continental"), under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., seeking payment of short- and long-term disability benefits. Before the court are cross-motions for summary judgment. For the reasons stated below, both motions are denied.

SUMMARY JUDGMENT STANDARD

  Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R. Civ. P. 56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee's notes. The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598-99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the non-moving party as well as view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On cross-motions for summary judgment, the court must consider the merits of each motion and assess the burden of proof that each party would bear on an issue at trial. Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997).

  FACTS*fn1

  Wolff was employed by Societe Generale as a securitization investment banker/vice president from April 29, 1997 through December 13, 2002. (Pl. L.R. 56.1 ¶ 6.) Societe Generale provided its employees, including Wolff, with short- and long-term disability income insurance coverage through insurance policies (the "plans") underwritten and insured by Continental. (Id. ¶ 7.) The short-term plan (No. SR-83123457) provides benefits for an insured participant for up to six months when the participant becomes "disabled." The short-term plan defines "disability" or "disabled" as follows:
Occupational Qualifier: "Disability" means that Injury or Sickness causes physical or mental impairment to such a degree of severity that You are: (1) continuously unable to perform the Material and Substantial Duties of Your Regular Occupation; and (2) not working for wages in any occupation for which You are or become qualified by education, training, or experience.
Earnings Qualifier: You may be considered Disabled during and after the Elimination Period in any weekly period which You are Gainfully Employed, if an Injury or Sickness is causing physical or mental impairment to such a degree of severity that You are unable to earn more than 80% of Your Weekly Earnings in any occupation for which You are qualified by education, training, or experience.
(Id. ¶ 11.) The long-term plan (No. SR-83123458) provides benefits to a participant in the event the insured suffers a disability lasting beyond the six month short-term disability period. The long-term plan defines "disability" or "disabled" as follows:
Occupation Qualifier: "Disability" means that during the Elimination Period*fn2 and the following 24 months, Injury or Sickness causes physical or mental impairment to such a degree of severity that You are: (1) continuously unable to perform the Material and Substantial Duties of Your Regular Occupation; and (2) not working for wages in any occupation for which You are or become qualified by education, training, or experience.
After the Monthly Benefit has been payable for 24 months, "Disability" means that Injury or Sickness causes physical or mental impairment to such a degree of severity that you are: (1) continuously unable to engage in any occupation for which You are or become qualified by education, training, or experience; and (2) not working for wages in any occupation for which You are or become qualified by education, training, or experience.
Earnings Qualifier: You may be considered Disabled during and after the Elimination Period in any Month in which You are Gainfully Employed, if an Injury or Sickness is causing physical or mental impairment to such a degree of severity that You are unable to earn more than 80% of Your Monthly Earnings in any occupation for which You are qualified by education, training, or experience. On each anniversary of your Disability, We will increase the Monthly Earnings by the lesser of the current annual percentage increase in CPI-W, or 10%.
(Id. ¶ 13.)
  To file a claim under either plan, a participant must provide, among other things, the following:
5. Objective medical findings which support Your Disability. Objective medical findings include but are not limited to tests, procedures, or clinical examinations standardly accepted in the practice of medicine for Your disabling condition(s).
6. The extent of Your Disability, including restrictions and limitations preventing You from performing Your Regular Occupation.
(Def. L.R. 56.1 ¶ 6.)

  The Summary Plan Descriptions ("SPD") associated with each of the plans provide that with respect to making benefit determinations, "The Administrator and other Plan fiduciaries have discretionary authority to interpret the terms of the Plan and to determine Your eligibility for and entitlement to benefits in accordance with the Plan. With respect to making benefit decisions, the Plan Administrator has delegated sole discretionary authority to Continental Casualty Company to determine Your eligibility for and entitlement to benefits under the Plan and to interpret the terms and provisions of any insurance policy issued in connection with the Plan." (Id. ¶ 8.) Each SPD also states that it "does not constitute a part of the Plan, nor any insurance policy issued in connection with it." (Admin. R., at 023, 046.)

  The Certificate of Insurance associated with the long-term policy indicates that when Continental makes a benefit determination under the long-term plan, it has "discretionary authority to determine Your eligibility for benefits and to interpret the terms and provisions of the policy." It also states, "This certificate, however, is not the policy. It is merely evidence of insurance provided under the policy." (Id. at 010.) The Certificate of Insurance associated with the short-term plan contains no language regarding Continental's discretionary authority. (Id. at 036.) On or about December 13, 2002, Wolff ceased working at Societe Generale. On December 16, 2002, Wolff filed three separate claims for disability benefits under the short-term plan. The first claim identified Wolff's disability as "L5-S1 right herniation, degenerative disc, C5-C6 herniation and degeneration, pain in legs, feet, neck, arms, hands." (Admin. R., at 052.) The claim was supported by a physician's statement from Dr. Daniel Hurley diagnosing Wolff with "degenerative disc disease, disc bulge C5-6" and stating objective findings of "degenerative disc disease cervical spine C5-6 foraminal stenosis, myositis, L5-S1 herniated disc." (Id. at 053.) The second claim identified Wolff's disability as "anxiety and depression caused by chronic pain, work stress and trouble eating/swallowing/breathing." (Id. at 054.) This claim was supported by a physician's statement from Dr. Michael McNulty diagnosing Wolff with "anxiety d/o due to a general medical condition with panic attacks." (Id. at 055.) The third claim identified Wolff's disability as "dysphasia, laryngitis, acid reflux begun July 2002 from work stress, voice strain, large food piece swall [illegible]. . . ." (Id. at 056.) This claim was supported by a physician's statement from Dr. Daniel Danahey diagnosing Wolff with "reflux laryngitis" and stating objective findings of "interarytenoid edema & post [illegible] edema." (Id. at 057.)

  Wolff's claim file also included a letter to Societe Generale from Dr. Charles Wang dated September 12, 2002. Dr. Wang, who had treated Wolff in July 2002, stated

 
With the onset of neck and arm pain, an MR scan of the cervical spine was recommended. The scan revealed some osteophytes and some disc bulging into the neural foramen between C5-C6 and some mild disc bulging at C6-C7. Jeff also had an EMG of the bilateral upper extremities which was essentially unremarkable. His previous lumbar pain was taken care of by Dr. Fessler and Dr. Hurley. He has had steroid injections in the lumbar area by Dr. Hurley. At this time, I will refer him to Dr. Hurley for possible epidural steroid injections for his neck pain. Jeff's neck pain has been treated conservatively with medications, including Neurontin and Celebrex. The patient experienced decreased pain on his medication but reported possible side effects including difficulty with balance, drowsiness and dizziness. Although his pain has improved as of this date, Jeff reports he continues to experience leg pain, numbness and stiffness; neckrelated shoulder, mild arm and hand pain with tingling.
(Def. L.R. 56.1 ¶ 11.)

  On December 27, 2002, Continental informed Wolff that it had received and reviewed his claim for benefits. Continental informed Wolff that it needed additional information to assess his disability status. Specifically, Continental requested Medical Assessment Tool forms and medical records since October 2002 from Drs. Robert Craig, Hurley, and Danahey. (Pl. L.R. 56.1 ¶ 19.)

  Dr. Hurley had faxed Wolff's medical records to Continental on December 26, 2002. Dr. Hurley also filled out a Medical Assessment Tool form diagnosing Wolff with "degenerative disc disease; C5-6 foraminal stenosis." Dr. Hurley estimated that Wolff could return to work in "approximately 6 months." (Def. L.R. 56.1 ¶ 12.)

  The medical records forwarded by Dr. Hurley begin with a record of x-rays and an MRI of the lumbar spine performed on March 12, 2002 by Dr. Michael Mikhael. The MRI showed "degenerative disc disease at L5-S1 level, with a centrally small herniated disc, but no foraminal narrowing or compromise of the lateral recess. The remaining lumbar levels were normal. The alignment of the lumbar spine was normal. The distal spinal cord was normal. There is no evidence of bone destruction or bone erosion." (Admin. R., at 193.) The x-ray revealed "no evidence of subluxation, bone destruction or bone erosion in the lumbar region." (Id. at 194.)

  Wolff had another x-ray of the lumbar spine on June 24, 2002, which resulted in an opinion of "negative study for significant bony stenosis or subluxation. There is no bone destruction or bone erosion." (Def. L.R. 56.1 ¶ 14.) On July 2, 2002, Dr. Charles Wang ordered another MRI for Wolff. The MRI found "a small osteophyte along the ventral canal, slightly greater to the right of the midline. This is causing only mild stenosis of the canal. There is no significant foraminal stenosis. There is associated narrowing of the C5-C6 disc interspace." The MRI report also noted "minimal osteophytes" along the disc margins at other levels, but found "no focal disc herniations" and "no significant spinal or foraminal stenosis." At the other cervical disc interspaces, the report found "no significant bulging or herniated discs" and "no definite nerve root compression." (Admin. R. at 196.)

  A report of another MRI performed on July 9, 2002 was also included in the records. This MRI revealed "degenerative disk disease and stenosis predominantly at the C5-6 level due to a combination of disc protrusion and small bony spurring" and "milder degree of degenerative disk disease with smaller disk bulges at the other cervical levels as described." (Def. L.R. 56.1 ¶ 16.)

  An electrodiagnostic study including Nerve Conduction Studies and an EMG was performed by Dr. Wang on July 16, 2002. Dr. Wang reported, "Nerve conduction study was performed in bilateral median and ulnar nerves. The results were within normal limits. Needle EMG was also performed in the indicated muscles in bilateral upper extremities. The results were within normal limits." Dr. Wang reported his "impression" as "No ...


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