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Kay v. Consolidated Route

November 3, 2005


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


Wendy Kay has sued Consolidated Route, Inc., Plan #510 (Plan), the administrator of her employer-provided disability insurance policy, under § 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B), seeking to overturn the Plan's decision to deny her long term disability benefits (LTD). The case is before the Court on the parties' cross motions for summary judgment. For the reasons stated below, the Court grants the Plan's motion for summary judgment and denies Kay's motion for summary judgment.


Kay worked as a regional operations manager for Win Stuff LLC (formerly known as Consolidated Route, Inc.), a purveyor of crane-and-claw amusement vending machines, from May 1996 to August 1, 2001. In that role, she established operational procedures, secured new vendors, negotiated contracts, oversaw daily operations, hired and trained staff, planned marketing strategies, and controlled inventory. To perform those duties, she occasionally lifted bags of stuffed animals, drove a car, and performed some squatting, kneeling, and stooping.

On May 26, 2000, Kay filed a worker's compensation claim with Win Stuff's worker's compensation insurer, Liberty Mutual Insurance Company, after she sustained a back injury while working on a machine. On June 13, in connection with that claim, Kay visited Dr. Martin Herman, her treating orthopedic physician. Dr. Herman examined Kay and opined, based on an MRI of Kay's lumbar and cervical spine, that Kay suffered moderate disc herniation and extremely mild bulges in various regions of the spine. He found no evidence, however, that these conditions caused any compression of the spinal nerve. He also noted that Kay's complaints of extreme pain had an "unusual discrepancy" with the MRI findings and that Kay was somewhat hostile because she felt strongly that her pain was being caused by her discs.

On June 26, Kay sought a second opinion from neurologist Dr. Lloyd Davis, who opined that "a detailed neurological examination was within normal limits." Then, on August 2, Kay's worker's compensation carrier referred her to a neurosurgeon, Dr. Marshall Matz, for an independent examination. He stated that Kay's neurological examination was objectively normal and concluded that there was a "histrionic, or exaggerated component" to Kay's complaints of pain. Consequently, he released her to work without any limitations.

On September 22, 2000, Kay obtained a third medical opinion from a neurologist, Dr. Avi Bernstein, who opined that Kay was neurologically intact. On October 2, after reviewing a CT myelogram of Kay's lumbar spine, Dr. Bernstein noted that Kay's symptoms might correlate to the spinal disc bulges shown on her CT scan. He recommended a regimen of weight loss and exercise.

On January 11, 2001, Kay saw hematologist Dr. David Hakimian and complained of aches all over her body. Dr. Hakimian reported that Kay had been running low grade fevers between ninety-eight and ninety-nine degrees and was fatigued particularly toward the end of the day. He wrote that her symptoms suggested a systemic inflammation, possibly due to an autoimmune illness. On January 31, 2001, rheumatologist Dr. Gerald Eisenberg examined Kay and also noted complaints of diffuse musculosketal pain and fatigue, which Kay said had begun when she sustained her original work related injury. She also complained of depression and chronic sleep disturbance. Eisenberg said that Kay's workup was entirely unrevealing, and he opined that she most likely suffered from fibromyalgia.

On March 1, 2001, Kay claims, she suffered a sharp shooting pain down her back and legs while lifting a bag of coins at work. On March 23, she returned to her treating neurologist, Dr. Bernstein, who concluded that Kay might have suffered a slight disc herniation but had "no neurological findings." He also recommended that she stay away from work until April 2. On June 1, Kay began an approved maternity leave from work. On that same day, she returned to Dr. Bernstein and complained of weakness in her right leg and that she had fallen twice because her leg went out on her. On exam, however, Dr. Bernstein concluded that "despite [Kay's] subjective complaints, she has a normal gait. She is able to toe and heel walk and she has a normal neurological examination."

On August 1, Win Stuff terminated Kay's employment after she failed to return from an approved maternity leave.

On August 21, Kay returned to Dr. Eisenberg, who noted that the movement of her joints was good, though uncomfortable, and that her range of motion in the lumbar spine was somewhat limited and uncomfortable. He reasserted his opinion that she might be suffering from fibromyalgia and decided to reevaluate her after reducing her steroid intake. On August 22, Liberty Mutual scheduled an independent medical examination (IME) with Dr. Jay Levin, an orthopedic surgeon, but Kay refused to allow him to examine her. Dr. Eisenberg performed a follow-up consultation on September 19 and noted that an examination of Kay's joints revealed discomfort with movement. He also said that Kay reported feeling worse since her visit the previous month, though her facial rash had improved. He observed no evidence of rheumatic disease and repeated his opinion that Kay suffered from fibromyalgia.

On September 24, 2001, Liberty Mutual scheduled a second IME with Dr. Stanford Tack, an orthopedist, and this time Kay agreed to be examined. She told Tack that she was completely incapacitated from the activities of daily living. Tack noted that Kay was "a very histrionic young woman." He said that "she exhibits extreme pain behavior which is. . . inconsistent during the process of history and physical examination" and that "the likelihood of surgical success. . . is quite low based on the fluctuating nature and distribution of her symptoms."

After Dr. Tack's IME, Kay returned to Dr. Eisenberg for a follow-up appointment on September 26, 2001. She complained that she had been feeling worse since her prednisone intake was reduced and that she had been experiencing activity-related pain in her left lower leg. After the examination, Dr. Eisenberg said that he was concerned about the possibility that Kay had Still's disease, a rheumatic illness (meaning it effects the bones and joints) characterized by persistent fevers, diffuse joint pain, and a salmon colored rash.

On September 28, Kay visited one of her treating physicians, Dr. Hendrix. He noted that Kay's primary complaint was lower back and leg pain, which she described as a ten on a scale of one to ten. She also complained of depression and lack of energy. In response to Dr. Hendrix's questions about other symptoms, Kay did not mention anything about fevers or diffuse joint pain other ...

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