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Speciale v. Blue Cross and Blue Shield Association

March 31, 2006

JANET SPECIALE, PLAINTIFF,
v.
BLUE CROSS AND BLUE SHIELD ASSOCIATION AND THE NON-CONTRIBUTORY NATIONAL LONG TERM DISABILITY PROGRAM, DEFENDANTS.



The opinion of the court was delivered by: Honorable David H. Coar

MEMORANDUM OPINION AND ORDER

Background Facts

Janet Speciale was employed as a senior account executive by Health Care Service Corporation ("HCSC") from June 22, 1998 through November 7, 2000. HCSC was an independent licensee of the Blue Cross and Blue Shield Association ("BCBSA"). Her position was fast paced, involving a constantly varying array of tasks that required frequent interruption to respond to problems or emergencies. As a senior account executive, she spent up to half her working time traveling to meetings with clients and brokers, and to training meetings. Between one- and two-thirds of her work week involved sitting and standing. She constantly engaged in typing or fine finger movement, talking, and listening; occasionally climbed stairs or walked or lifted up to 50 pounds from either floor or table level. Her position required overtime seven or more times per month.

As a benefit of her employment, Speciale was eligible to participate in a long term disability program ("the Plan") administered by the National Employee Benefits Committee ("NEBC") of BCBSA. The NEBC has delegated authority for day-to-day operation of the Program to the National Employee Benefits Administration, a department of BCBSA.

Speciale ceased working on November 7, 2000, due to pain, difficulty with concentration, fatigue and other symptoms. In addition to fibromyalgia, her doctors began to suspect she might be developing a demyelinating disease such as multiple sclerosis ("MS"). She had several clinical tests which seemed to indicate MS, but a lumbar puncture ultimately demonstrated that she had not developed MS. Speciale also has recurrent sinusitis and chronic kidney stones, although these are not the primary focus of the current controversy. To control her various pain and fibromyalgia symptoms, Speciale takes over ten prescription medications daily.

From November 27, 2000 through May 18, 2001, Speciale received short-term disability benefits from the Fort Dearborn Life Insurance Company. For the purpose of these benefits, her first date of disability was November 8, 2000. On April 18, 2001, Speciale filed an application for long-term disability ("LTD") benefits, giving November 7, 2000 as her last day of work. Speciale claimed she was disabled and unable to return to work as a result of numbness and tingling in her legs, feet, and hands; constant exhaustion; pain that made it impossible to concentrate, sit, stand, use the phone, drive or walk for more than short periods of time; and fibromyalgia. At that time, Speciale's physicians suspected that she was suffering from multiple sclerosis or another demyelinating disease. Speciale had worked since 1986 with fibromyalgia, but stated that her condition had progressively worsened over the previous year. On April 25, 2001, Dr. Brian O'Shaughnessy, a neurologist, completed an LTD physician's statement for Speciale, on which he noted that "due to the severity of her symptoms, she is unable to work in any capacity." He further reported that Speciale had been referred to a Dr. Vern for MS evaluation and to Dr. Dennis Keane, a physiatrist who specialized in pain management. Medical Evidence

Speciale saw Dr. Snydersmith on October 19, 2000 for her fibromyalgia and "chronic pain syndrome and some atypical neurological symptoms." Dr. Kevin Snydersmith noted neurological symptoms, including occasional shooting pains in her extremities, and numbness in her thighs. Dr. Snydersmith instructed Speciale to follow-up with Dr. Ann Winny, a rheumatologist. According to Dr. Winny's October 28, 2000, treatment notes, Speciale's condition was getting progressively worse. Dr. Winny administered three trigger point injections, designed to ease symptoms of fibromyalgia. She and Speciale discussed whether Speciale would be able to continue working because Speciale's job required a lot of travel, which Speciale found difficult.

On November 1, 2000, Speciale saw Dr. Brian E. O'Shaughnessy and complained of increased numbness along the left side of her body, in her heel and foot, in her hand up to her shoulder, and under her eye and in her lips. Pain accompanied the numbness. About six weeks later, Dr. Dennis Keane, a physiatrist who specializes in pain management, examined Speciale. His notes reflect a history of fibromyalgia over the previous fourteen years, chronic low back pain which increased in intensity and frequency over the course of the preceding months, and decreased sensitivity to pin prick sensation on the left leg compared to the right.

Dr. Snydersmith saw Speciale again on January 16, 2001, for complaints of pain, numbness, and swelling. He noted that she continued to have problems with paresthesias, or skin sensations with no apparent cause, and was experiencing balance problems. Because of gait instability and paresthesia, she needed a second cane, and Dr. Snydersmith gave her a quad cane, or a cane with four feet at its base.

Over the course of the next few months, Speciale underwent a variety of tests relating to her possible MS, including visually evoked response and somatosensory evoked response tests, an MRI of her thoracic spine, electronystagmography (ENG), audiology testing, and a lumbar puncture (often called a "spinal tap"). During that time period, Speciale continued to see her regular treating physicians. On February 19, 2001, she saw Dr. Keane for a flare-up of neck pain that had started in December 2000. He stated that his impression was that Speciale had myofascial and cervical pain and possible MS. Later that month, Speciale saw Dr. O'Shaughnessy about complaints of severe fatigue and pain in the lower back and legs. His notes indicate that she was having some difficulty walking. In early March, Dr. Snydersmith gave Speciale Demerol for her severe pain in her back and hips. He assessed her condition as an "exacerbation" of MS with severe pain. On March 12, 2001, Dr. O'Shaughnessy noted that Speciale complained of fatigue and numbness and that her fait was unsteady. Speciale saw Dr. Keane on that day also; his notes reflect leg pain and tightness, and back tenderness and muscle tightness.

Dr. Boris Vern, a neurologist at the University of Illinois, Chicago, examined Speciale on March 15, 2001. His written impression of her condition was that her "sensory symptoms are overshadowed and probably colored by her chronic pain, which seems to b[e] of myofascial origin." He reported that the available lab studies did not strongly support a finding of MS. Speciale underwent an ENG on March 21, 2001. The clinical impressions included vertical "flutter" when Speciale's eyes were closed, which was "too fast" to be due to eyeblinking, "and definitely begins as soon as patient begins tasking." (Pl.'s L.R.56.1 St. App. at BCBSA 000179.)

Speciale returned to Dr. Keane on April 2, 2001, after a week-long vacation in Arizona. She reported some improvement but Dr. Keane noted that her gait was slightly unsteady and that she was using a quad cane when she walked. On May 17, 2001, Dr. O'Shaughnessy reported in his progress notes that although Dr. Vern was not convinced Speciale had a demyelinating disease such as MS, she had some abnormal test results suggestive of such a diagnosis. In addition, she was reporting problems with dizziness and hearing, as well as significant fatigue and difficulty with her legs and feet. He opted to try steroid treatment again, but opined that MS was quite possible. In a letter dated June 11, 2001, Dr. O'Shaughnessy wrote that he felt Speciale's "clinical picture is most compatible with multiple sclerosis." In addition, he "[did] not see her improving enough at this time to return to work." (Pl.'s L.R. 56.1 Stmt. App. at BCBSA 000167.) Dr. Snydersmith, in a letter dated June 18, 2001, reported that "[i]t is my medical opinion that [Speciale] is totally physically disabled with a primary diagnosis of multiple sclerosis.... She has carried the diagnosis of chronic pain syndrome and still does...." (Pl.'s L.R. 56.1 Stmt. App. at BCBSA 000168.)

On July 24, 2001, Dr. Winny reported in a progress note that Speciale had fibromyalgia and chronic pain syndrome, and had recently been diagnosed with gastritis. In addition, Speciale was having significant pain in her knees. Dr. Winny noted that Speciale "is probably disabled at this point from the fact that her symptoms are on and off and make it very difficult to walk on a regular basis." (Pl.'s L.R. 56.1 Stmt. App. at BCBSA 000134.) Two days later, Speciale underwent a lumbar puncture and cerebrospinalfluid specimen collection, which was negative for MS.

In a telephone conversation with BCBSA's Nurse Sue Majewski on August 27, 2001, Dr. Snydersmith stated that MS had been ruled out as a diagnosis, and that Speciale's diagnosis was fibromyalgia. Majewski asked what was different now because Speciale had been working with fibromyalgia for years. Dr. Snydersmith reported that severe pain and muscle spasms had led to a slow but progressive decline in her functional ability. In addition, he stated that Speciale was unable to sit, stand or walk for long periods of time, although the exact duration would depend on how she was feeling that day.

Long Term Disability Benefits Application and Appeals

Speciale applied for LTD Benefits on April 18, 2001. On August 1, 2001, BCBSA's Program Medical Director, Dr. E. Richard Blonsky, filed out a Physician's Recommendation giving his opinion that Speciale was not disabled. As support, he noted that he had reviewed Speciale's file and had a "lengthy" conversation with Dr. O'Shaughnessy. According to Dr. Blonsky, Dr. O'Shaughnessy felt that Speciale had collagen vascular disease but that it could not be proven. Dr. Blonsky characterized Speciale's case as "very marginal" because "there are no absolute confirmatory findings, just a lot of subjective complaints." Speciale had "had fibromyalgia for 20 years and worked." He further noted that he was "not totally convinced of her disability" and inquired whether there were "any H.R., performance issues?" (Pl.'s L.R. 56.1 Stmt. App. at BCBSA 000144.) In a supplemental Physician's Recommendation ...


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