United States District Court, N.D. Illinois, Eastern Division
January 10, 2005.
LISA MULLALLY f/k/a LISA BARCH, Plaintiff,
THE BOISE CASCADE CORPORATION LONG TERM DISABILITY PLAN and CONTINENTAL CASUALTY COMPANY, a CNA company, Defendants.
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Lisa Mullally, filed suit against Defendants, the
Boise Cascade Corporation Long Term Disability Plan and
Continental Casualty Company, alleging that she was wrongfully
denied disability benefits under the Employee Retirement Income
Security Act of 1974 ("ERISA), 29 U.S.C. §§ 1001-3508.
Specifically, Plaintiff contends that she was continuously unable
to perform her job. In response, Defendants contend that they
conducted an investigation of Plaintiff's claim and determined
that Plaintiff had failed to establish she was continuously
incapable of performing her job. Presently before the Court are
cross motions for summary judgment.
Summary judgment is appropriate when no genuine issue of
material fact exists and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(c); Cincinnati Ins. Co. v.
Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 150 (7th Cir.
1994). "One of the principal purposes of the summary judgment rule is to isolate and dispose
of factually unsupported claims or defenses. . . ." Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Thus, although the
moving party on a motion for summary judgment is responsible for
demonstrating to the court why there is no genuine issue of
material fact, the non-moving party must go beyond the face of
the pleadings, affidavits, depositions, answers to
interrogatories, and admissions on file to demonstrate, through
specific evidence, that a genuine issue of material fact exists
and to show that a rational jury could return a verdict in the
non-moving party's favor. Celotex, 477 U.S. at 322-27;
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-56 (1986);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986); Waldridge v. American Hoechst Corp.,
24 F.3d 918, 923 (7th Cir. 1994).
Disputed facts are material when they might affect the outcome
of the suit. First Ind. Bank v. Baker, 957 F.2d 506, 507-08
(7th Cir. 1992). When reviewing a motion for summary judgment, a
court must view all inferences to be drawn from the facts in the
light most favorable to the opposing party. Anderson,
477 U.S. at 247-48; Popovits v. Circuit City Stores, Inc., 185 F.3d 726,
731 (7th Cir. 1999).
The undisputed facts, for the purposes of these motions, are
taken from the parties' Local Rule 56.1(a) & (b) statements of
material facts and exhibits ("Pl.'s 56.1" and "Defs.' 56.1") and
the Administrative Record ("R.").
Plaintiff was employed by Boise Cascade Corporation as a senior
marketing claim analyst. Defs.' 56.1 ¶ 3; Pl.'s 56.1 ¶ 7.
Plaintiff's job required her to work for forty hours a week.
Defs.' 56.1 ¶ 13. Plaintiff typically sat for five hours per day,
stood for one hour per day, and walked for up to two hours per day. Defs.' 56.1 ¶ 13. By
virtue of her employment, Plaintiff was a participant, as defined
by ERISA, in Boise Cascade's long-term disability insurance plan
purchased from Continental Casualty and issued to Boise Cascade.
Defs.' 56.1 ¶¶ 4-5.
The plan itself consists of two sets of documents the Policy
and the Certificate. R. at 6-26. The Policy states that
Continental Casualty "will deliver certificates of insurance to
the Employer for issuance to each Insured Employee. The
certificates will describe the benefits, to whom they are
payable, the policy limitations, and where the policy may be
inspected." R. at 11. The Certificate then states that "[w]hen
making a benefit determination under the policy, We have
discretionary authority to determine Your eligibility for
benefits and to interpret the terms and provisions of the
policy." R. at 12. The Certificate, though, states it is not the
policy and "is merely evidence of insurance provided under the
policy." R. at 12. Nothing in the Policy makes any reference in
any way to Continental Casualty's decision-making process
regarding benefit eligibility. R. at 6-26.
Plaintiff sought long-term disability benefits and claimed that
she was disabled because of "chronic pain that is debilitating
to the nerves around [her] left kidney with pain that flows
around left flank and down left leg." Defs.' 56.1 ¶ 10. To meet
the definition of disability, Plaintiff was required to show that
she was continuously unable to perform the material and
substantial duties of her regular occupation. Defs.' 56.1 ¶ 7. To
make this showing, Plaintiff was required to provide proof in the
form of: (1) objective medical findings which support her
disability, which include but are not limited to tests,
procedures, or clinical examinations standardly accepted in the practice of medicine for her disabling
condition; and (2) the extent of her disability, including
restrictions and limitations which prevent Plaintiff from
performing her regular occupation. Defs.' 56.1 ¶ 8.
Plaintiff was examined by Dr. Richard Fessler, who diagnosed
Plaintiff with chronic pain syndrome secondary to left renal
congenital abnormality. Pl.'s 56.1 ¶ 10. Plaintiff was also
examined by Dr. Luz Feldmann, who diagnosed Plaintiff with
complex regional pain syndrome, myofascial low back pain, site
low back pain, CV angle pain, and spasms. Pl.'s 56.1 ¶ 47. Dr.
Feldmann felt Plaintiff was disabled because she could not keep
regular and consistent work hours. Defs.' 56.1 ¶ 12.
Dr. Richard Penn examined Plaintiff, as well. He first opined
that Plaintiff should work part-time and gradually increase her
hours, but that it would be doubtful Plaintiff would make a full
recovery. Pl.'s 56.1 ¶ 34. Later on, Dr. Penn reported Plaintiff
had bad days with symptoms of nausea and dizziness. Pl.'s 56.1 ¶
41. Thereafter, he concluded that if Plaintiff would return to
work, it would be extremely difficult and would probably result
in many absences and an inability to carry out her job as needed.
Pl.'s 56.1 ¶ 77. Therefore, Dr. Penn later stated that Plaintiff
was disabled and may not be able to resume meaningful employment.
Pl.'s 56.1 ¶ 79.
To support her claims, Plaintiff filled out daily-activity
logs. Pl.'s 56.1 ¶¶ 53-66. The logs show that Plaintiff did
activities such as driving her daughter to school, laundry,
dusting, dishwashing, cooking, shopping for groceries, and
walking. Pl.'s 56.1 ¶¶ 53-66. The logs also show that Plaintiff
frequently rested. Pl.'s 56.1 ¶¶ 53-66. Furthermore, Plaintiff
frequently took prescription medication to cope with her pain,
both orally and through a Morphine pump that was surgically implanted. Pl.'s 56.1 ¶¶ 21-24, 26-28, 30, 37-38, 40,
43-44, 53-66. The dosage of the pump started at less than 5 mg
per day of Morphine, and was raised six times to reach a dosage
of 14 mg per day. Pl.'s 56.1 ¶¶ 20-24, 27, 30.
Plaintiff's supervisor, Diane Oddo, also confirmed that
Plaintiff was not able to work on a regular basis. Pl.'s 56.1 ¶¶
82-83. According to the supervisor, Plaintiff frequently missed
time from work because of her condition, which caused Plaintiff
to fall behind and caused an extra burden on her co-workers.
Pl.'s 56.1 ¶ 83. Plaintiff's supervisor also noted Plaintiff was
given many accommodations as a result of her condition. Pl.'s
56.1 ¶ 83. Finally, the supervisor noted that Plaintiff had
difficulty accomplishing her work because of the pain Plaintiff
was experiencing. Pl.'s 56.1 ¶ 83. Oddo suggested Plaintiff apply
for long-term disability benefits because of Plaintiff's
condition. Pl.'s 56.1 ¶ 83.
Continental Casualty conducted surveillance on Plaintiff to
determine the veracity of Plaintiff's claims. Pl.'s 56.1 ¶¶
68-70. The surveillance revealed that Plaintiff was able to drive
around and complete errands, as well as lift a child's bicycle
from an automobile. Pl.'s 56.1 ¶¶ 68-70. Continental Casualty
conducted an in-home interview with Plaintiff, as well. Pl.'s
56.1 ¶ 71. The interview revealed that Plaintiff kept her home
clean and that Plaintiff was able to move around her home with
little difficulty. Defs.' 56.1 ¶ 20.
Plaintiff was examined by Nurse Eileen Taylor, who stated that
Plaintiff's use of medication only prohibited her from
participating in activities requiring extended periods of driving
or working around machinery. Pl.'s 56.1 ¶ 73. Nurse Taylor
further stated that Plaintiff's level of function allowed her to
participate in all activities requiring sitting and standing and that Plaintiff could do all other physical
activities not involving lifting, carrying, pushing, and pulling
weights in excess of twenty pounds. Pl.'s 56.1 ¶ 73. Plaintiff's
initial claim was then denied, and Plaintiff sought review of
this denial. Pl.'s 56.1 ¶¶ 75, 80.
Nurse Taylor again reviewed Plaintiff's claim in conjunction
with the review and concluded that there was no change in
Plaintiff's functionality. Pl.'s 56.1 ¶ 81. Nurse Susan Gregory
also reviewed Plaintiff's claim, and held that:
Based on the information provided as well as the
[Plaintiff's] self-report of functionality that
includes driving, assisting her child with homework,
managing finances and budgeting, and ability to
attend to watching TV and reading as well as engaging
in some social activities, there is no evidence to
support a functional impairment that prevent[s]
[Plaintiff] from performing her occupation.
Pl.'s 56.1 ¶ 84. Based on this decision, Plaintiff's review of
her denial of benefits was then denied. Pl.'s 56.1 ¶¶ 85-86.
Plaintiff then sought review before the Continental Casualty
Appeals Board. Pl.'s 56.1 ¶ 86. Continental Casualty asked Dr.
Ronald DeVere to determine whether Plaintiff was disabled. R. at
30-34. Dr. DeVere reviewed Plaintiff's medical records, along
with the daily activity logs submitted by Plaintiff and the
surveillance observations conducted by Continental Casualty. R.
at 30-33. Based on these records, Dr. DeVere impressions were, in
It is my opinion, based on review of these medical
records, that the claimant, [Plaintiff], has a left
flank chronic pain disorder that began in her teenage
years. Despite surgery on her redundant ureter and
other operations, the pain has continued and
developed progressively over the years. In my
opinion, the cause of this pain is unclear. There
does not appear to be any definite diagnosis noted in
the medical records provided for review, or at least
in my evaluation of this condition. None of the tests
that have been done over the years have revealed any
definite source for the claimant's pain. Also of note
is that the claimant has been on numerous
anti-inflammatory, neurological and narcotic
medications and has received epidural injections. The
most benefit that she has received is perhaps 40 to
50 percent reduction in her pain. I do not believe
that there is any documented evidence to give her a diagnosis of complex regional
pain syndrome. She does not meet clinical criteria
for this disorder, which usually has some autonomic
and skin abnormalities. . . . In my opinion, the
cause of [Plaintiff's] pain is not well documented or
diagnosed at this time, and I do not believe there is
any obvious answer to the source of her pain.
R. at 33-34. Dr. DeVere also stated, "I do not believe that her
description of her daily activities and the observation of her
daily activities coincide with her level of pain." R. at 33.
Based on these impressions, Dr. DeVere concluded Plaintiff could
perform the duties of her occupation. R. at 34.
Thereafter, Continental Casualty's Appeals Board issued a
decision concerning Plaintiff's benefit claim. R. at 35-36. The
In light of the medical evidence presented,
[Plaintiff] stopped work related to a complex
regional pain syndrome and myofascial low back pain.
In light of our review of the medical evidence, we do
not disagree that your client may have a medical
condition. We further agree that her condition
may/and or may not require ongoing medical treatment.
R. at 35. However, the Appeals Board concluded that Plaintiff had
failed to meet the disability standard.
The parties raise two issues. First, the parties dispute the
applicable standard of review of Defendants' denial of disability
benefits. Second, the parties dispute Defendants' decision not to
provide Plaintiff disability benefits.
Defendants contend the applicable standard of review should be
arbitrary and capricious, while Plaintiff argues the standard
should be de novo. A denial of benefits will be reviewed de
novo unless the plan grants the plan administrator discretionary
authority to determine eligibility benefits. E.g., Vallone v.
CNA Fin. Corp., 375 F.3d 623, 631 (7th Cir. 2004) (Vallone).
If the administrator is given discretionary authority, the denial of
benefits is reviewed under the arbitrary and capricious standard.
Vallone, 375 F.3d at 631. The grant of discretionary authority
must be indicated in the plan with enough clarity so that
employees understand the employer and insurer have discretion to
deny claims. Herzberger v. Standard Ins. Co., 205 F.3d 327,
332-33 (7th Cir. 2000) (Herzberger).
Plaintiff does not dispute that the sentence in the Certificate
asserts Continental Casualty has discretionary authority in
making claim decisions. Rather, Plaintiff claims that the
statement is insufficient in this regard because it is contained
in the plan Certificate and not in the Policy.
Defendants claim the contrary and cite Crespo v. Unum Life
Insurance Co., 294 F. Supp. 2d 980 (N.D. Ill. 2003) (Crespo),
in support. There, the certificate stated that the insurer had
discretion to make benefit decisions. Crespo,
294 F. Supp. 2d at 984. However, the Crespo court cited no statements in the
certificate which would have limited the use of the certificate's
provisions in construing the insurance policy. Furthermore, the
policy itself also stated that the insurer had discretionary
authority to make benefit decisions and used the word
"discretion" three times in the policy to highlight the insurer's
discretionary authority. Crespo, 294 F. Supp. 2d at 984. The
court found that these references to the insurer's discretionary
authority regarding benefit determinations were sufficient to
warrant the application of the arbitrary and capricious standard.
Crespo, 294 F. Supp. 2d at 990, n. 3.
Plaintiff cites a number of cases, including Wolff v.
Continental Casualty Co., No. 03 C 4667, 2004 WL 2195179 (N.D.
Ill. Sept. 28, 2004) (Wolff), in support of her position. In
that case, the certificate stated that the insurer had
discretionary authority to determine eligibility benefits.
Wolff, 2004 WL 2195179, at *3. The certificate also stated that
it was not the policy and merely evidence of the policy. Wolff, 2004 WL 2195179, at
*3. The court concluded that the limiting language, stating the
certificate was not the policy and merely evidence of the policy,
was contrary to the insurer's claim that the Certificate and its
discretionary decision was incorporated into the plan. Wolff,
2004 WL 2195179, at *10.
Here, in contrast to Crespo, it is undisputed that the
discretionary statement contained in the Certificate is the only
reference made to Continental Casualty's decision-making process
regarding benefit eligibility. Moreover, as in Wolff, the
Certificate specifically states that it is not the policy and is
merely evidence of the policy. The Policy does contain language
that the Certificate will describe the Policy limitations.
However, based upon the inconsistency between the clear and
specific limiting language in the Certificate and the language in
the Policy regarding the Certificate, it cannot be said that the
insured has been advised with the requisite clarity that the
employer and insurer have discretion to deny claims. "An ERISA
plan can stipulate for deferential review . . . [b]ut the
stipulation must be clear. . . . The employees are entitled to
know what they're getting into, and so if the employer is going
to reserve a broad, unchanneled discretion to deny claims, the
employees should be told about this, and told clearly."
Herzberger, 205 F.3d at 332-33.
Therefore, the denial of Plaintiff's claim will be reviewed
under the de novo standard. Under this standard, Defendants'
decision to deny benefits to Plaintiff must be reviewed to
determine whether the decision was correct, as opposed to a
review of the reasonableness of the decision pursuant to the
arbitrary and capricious standard. Herzberger, 205 F.3d at 329.
To show she was disabled, Plaintiff must prove that she was
continuously unable to perform the material and substantial
duties of her regular occupation, a senior marketing claim analyst. Plaintiff must: (1) present objective medical findings
which support her disability; and (2) the extent of her
disability, including restrictions and limitations which prevent
her from performing her job. Defendants thus argue that the
benefit decision was correct, and Plaintiff was not disabled
because she failed to do both.
As to the first factor, the Seventh Circuit has held that
"medical science confirms that pain can be severe and disabling
even in the absence of `objective' medical findings, that is,
test results that demonstrate a physical condition that normally
causes pain of the severity claimed by the [plaintiff]."
Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004)
(Carradine). Thus, while objective medical evidence must
support a finding of an underlying impairment, subjective
evidence can be used to demonstrate that the pain associated with
that condition is disabling. Carradine, 360 F.3d 753; see also
Hawkins v. First Union Disability Plan, 326 F.3d 914, 919 (7th
Cir. 2003) (Hawkins).
Continental Casualty argues that Dr. DeVere found no objective
medical reason which would cause Plaintiff to suffer from pain
and that MRIs and other scans did not show any cause of
While Continental Casualty's expert, Dr. DeVere, did not find
any objective evidence to make a diagnosis of complex regional
pain disorder, it is undisputed that he acknowledged that
Plaintiff suffers from chronic pain disorder. It is also
undisputed that one of Plaintiff's physicians, Dr. Fessler,
diagnosed Plaintiff with chronic pain syndrome and that another
of Plaintiff's physicians, Dr. Feldmann, diagnosed Plaintiff with
complex regional pain syndrome and myofascial low back pain.
Continental Casualty does not dispute the findings that Plaintiff
has an underlying impairment. It is undisputed that the decision
of Continental Casualty's Appeals Board was that: (1) "In light of the medical evidence
presented, [Plaintiff] stopped work related to a complex regional
pain syndrome and myofascial low back pain"; and (2) "In light of
our review of the medical evidence, we do not disagree that
[Plaintiff] may have a medical condition."
Accordingly, no genuine issue of material fact exists that
Defendants were incorrect in determining that Plaintiff had
failed to present objective medical evidence demonstrating that
she suffers from a disabling impairment.
Regarding the second factor, Defendants argue that information
presented by Plaintiff demonstrates that she is not disabled.
Specifically, Defendants cite Plaintiff's daily-activity log,
surveillance of Plaintiff, and an interview conducted at
Plaintiff's home. Defendants argue that Plaintiff did activities
such as driving her daughter to school, laundry, dusting,
dishwashing, cooking, shopping for groceries, and walking.
However, "when one is working at home it is easier to interrupt
one's work every few minutes if need be than to do so at the
office." Hawkins, 326 F.3d at 918. Thus, whether Plaintiff is
able to do light household chores is not determinative of whether
Plaintiff can work full time. Hillock v. Continental Cas. Co.,
No. 02 C 5126, 2004 WL 434217, at *6 (N.D. Ill. Mar. 2, 2004)
(Hillock). These views are further confirmed by other entries
in Plaintiff's daily-activity log; although Plaintiff was able to
do the chores described above, it is undisputed that she also
frequently rested. Also, as Hillock noted, Plaintiff would have
to do these household chores and perform her work-related duties
as well if she was not disabled. Hillock, 2004 WL 434217, at
Regarding the surveillance and in-home interview, Defendants
argue the surveillance revealed that Plaintiff was able to move
without difficulty or pain; and the in-home interview showed that Plaintiff kept a clean home. Defendants further argue
that the surveillance revealed that Plaintiff was able to move a
bicycle. However, these activities only reveal that, for limited
periods of time, Plaintiff was able to complete certain
activities. These activities, though, do not demonstrate
Plaintiff is able to work full time; as discussed above,
Plaintiff would be able to interrupt her activities at home in an
effort to accomplish the activities. In fact, Plaintiff did as
such, and Plaintiff frequently rested throughout the day.
Moreover, Plaintiff has presented undisputed evidence that she
was continuously unable to perform the material and substantial
duties of her regular occupation as a senior marketing claim
analyst and has demonstrated the extent of her disability,
including restrictions and limitations which prevent her from
doing so. Plaintiff's job required her to work for forty hours a
week and sit for five hours a day, stand for one hour a day, and
walk two hours a day. Dr. Feldmann, a physician who examined
Plaintiff, found that Plaintiff was disabled because she could
not keep these work hours regularly and consistently.
Another physician, Dr. Penn, indicated that on Plaintiff's days
when the pain was severe, she was not able to work. On some of
these days, Plaintiff experienced nausea and dizziness. Dr. Penn
also stated that it would be difficult for Plaintiff to work or
properly meet the requirement of her job and that Plaintiff would
probably be absent on many occasions. Dr. Penn later stated that
Plaintiff was disabled and may not be able to resume meaningful
Plaintiff's supervisor, Diane Oddo, also confirmed that
Plaintiff was not able to properly work on a regular basis.
According to the supervisor, Plaintiff missed time for her
condition, which caused Plaintiff to fall behind and caused an
extra burden on her co-workers. The supervisor also observed that Plaintiff had difficulty
accomplishing her work because of her pain. It was Plaintiff's
supervisor who suggested Plaintiff apply for long-term disability
benefits because of Plaintiff's condition.
Plaintiff was also taking a multitude of prescription drugs to
help alleviate her pain. Plaintiff used an internal Morphine
pump, which dispersed 14 mg of the drug per day. Use of pain
medication, particularly to this extent, further substantiates
that Plaintiff was experiencing significant pain which prevented
her from working. "What is significant is the improbability that
[the plaintiff] would have undergone the pain-treatment
procedures that she did, which included not only heavy doses of
strong drugs such as Vicodin, Toradol, Demerol, and even
Morphine, but also the surgical implantation in her spine of a
catheter and a spinal-cord stimulator, merely in order to
strengthen her complaints of pain and so increase her chances of
obtaining disability benefits. . . ." Carradine,
360 F.3d at 755.
In addition to the activity logs and surveillance discussed
above, Defendants rely on the opinions of two nurses and Dr.
DeVere. However, Defendants concede that "reliance on a nurse's
opinion alone is insufficient to deny benefits in the face of [a]
treating physician's opinions that a claimant is disabled,"
(Defs.' Resp. to Pl.'s Mot. At 10); see also Billings v.
Continental Cas. Co., No. 02 C 3200, 2003 WL 145420 (N.D. Ill.
Jan. 21, 2003), and that the nurses' opinions were not used in
the final decision by the Appeals Board and should not now be
considered. (Defs.' Resp. to Pl.'s Mot. At 10).
Dr. DeVere's opinion held that: (1) "In my opinion, the cause
of [Plaintiff's] pain is not well documented or diagnosed at this
time, and I do not believe there is any obvious answer to the
source of her pain"; and (2) "I do not believe that her
description of her daily activities and the observation of her daily activities coincide with her level
of pain." Dr. DeVere concluded that Plaintiff was able to perform
the material and substantial duties of her regular occupation.
However, as discussed above, Dr. DeVere's impressions in this
regard are unsupported and, in some instances, contrary to the
Accordingly, no genuine issue of material fact exists that
Defendants were incorrect that Plaintiff failed to demonstrate
the extent of her disability, including restrictions and
limitations which prevent Plaintiff from performing her job.
Plaintiff is awarded summary judgment.
Plaintiff seeks interest at the statutory rate of 9.00%,
pursuant to 215 ILCS 5/357.9. Plaintiff also seeks attorney's
fees under 29 U.S.C. § 1132(g). While these measures are
presumptively awardable, granting interest and attorney's fees
are discretionary measures that are determined on the basis of a
number of factors that are not fully present before the Court.
See Fritcher v. Health Care Serv. Corp., 301 F.3d 811, 818-20
(7th Cir. 2002).
For the foregoing reasons, Plaintiff's Motion for Summary
Judgment is granted; and Defendant's Motion for Summary Judgment
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