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Svejda v. Mercantile Bancorp

June 8, 2006


The opinion of the court was delivered by: Joe Billy McDADE United States District Judge


Before the Court are Defendant Continental Casualty Company (Continental's) Motion for Summary Judgment And/Or Judgment on the Merits [Doc. # 21]; Plaintiff's Motion for Summary Judgment [Doc. # 22]; Mercantile Defendants Adoption of Defendant Continental's Motion for Summary Judgment [Doc. # 23]; and Continental's Motion to Strike Exhibits to Plaintiff's Motion for Summary Judgment [Doc. # 25]. For the reasons that follow the Court will grant summary judgment to Plaintiff and deny the other motions.


Plaintiff began working for Defendant Mercantile Bancorp, Inc. ("Mercantile") in February 1988 and she continued to work there until March 11, 2002. At the time she left Mercantile, Plaintiff was eligible for coverage under the terms of the Mercantile Bancorp., Inc. and Named Subsidiaries Long Term Disability Plan ("the Plan"). The Plan was established and is maintained by Mercantile for the purpose of providing for its participants or their beneficiaries benefits in the event of sickness, accident or disability, and is a "plan" within the meaning of ERISA § 3(3), 29 U.S.C. § 1002(3). Mercantile is the Plan Administrator and a named fiduciary under the Plan. (Plaintiff's Motion for Summary Judgment, Doc. # 22 Ex. 4 at II.) The Plan is administered by Mercantile through an insurance contract purchased from Continental. (Id.) Under the Plan, the term "Total Disability" is defined as follows:

'Total Disability' means that, during the Elimination Period and Your Occupation Period shown in the Schedule of Benefits, You, because of Injury or Sickness, are:

(1) continuously unable to perform the substantial and material duties of Your regular occupation;

(2) under the regular care of a licensed physician other than Yourself; and

(3) not gainfully employed in any occupation for which You are or become qualified by education, training or experience.

After the Monthly Benefit has been payable for Your Occupation Period, 'Total Disability' means that, because of Injury or Sickness, You are:

(1) continuously unable to engage in any occupation for which You are or become qualified by education, training or experience; and

(2) under the regular care of a licensed physician other than Yourself.

(Id. at 4-5.) The Plan defines "Elimination Period" to mean "the number of days at the beginning of a continuous period of Disability for which no benefits are payable" and sets the Elimination Period at 90 days. (Id. at 2, 4.) Under the heading "Your Occupation Period," the Plan provides a period of 36 months. (Id. at 2.) Under the insurance policy associated with the Plan, "[t]he Administrator and other Plan fiduciaries have discretionary authority to interpret the terms of the Plan and to determine eligibility for and entitlement to benefits in accordance with the Plan." (Id. at 15.) Under the Plan, Continental also reserves the right to have a physician examine a participant who seeks benefits "as often as reasonably necessary while the claim is pending." (Id. at 8.)

The following facts regarding Plaintiff's medical condition and job at Mercantile are taken from the administrative record attached to Defendant Continental's Motion for Summary Judgment.*fn1

On October 9, 2001, Dr. Douglas N. Sullivant, M.D., examined Plaintiff. He noted (1) that Plaintiff was a well known patient to him with a history of multiple sclerosis ("MS"); (2) that Plaintiff had some problems with fecal incontinence and that she also had a long standing problem of irritable bowel and diarrhea, which remained a problem; and (3) that Plaintiff had problems with daytime fatigue. (AR 0099.)

On January 7 , 2002, Dr. Sullivant noted that Plaintiff had been seen at the Mayo Clinic for an evaluation of her irritable bowel syndrome ("IBS"). He remarked that, it was largely a "benign work-up" but that the IBS was still Plaintiff's main concern. Dr. Sullivant noted that the Mayo Clinic doctors had concluded that Plaintiff's GI problems may have had nothing to do with her MS since they preceded her neurologic history by so many years. He also noted that Plaintiff had been evaluated by the Mayo Clinic Neurology department for the MS, and that they basically came to the same conclusions as Dr. Sullivant. The Neurology Department recommended immunomodulating drugs, which Dr. Sullivant could provide. Dr. Sullivant prescribed Avonex. At that meeting Dr. Sullivant discussed the signs of depression and treatment options for Plaintiff's fatigue. Plaintiff largely dismissed depression as out of hand. (AR 0098, 0100.)

On January 23, 2002, Dr. Sullivant's notes indicate that Plaintiff had some worries about taking Avonex because of her bowel control problems. In response, Dr. Sullivant instructed Plaintiff to contact her GI doctor. (AR 0100.) Dr. Sullivant examined Plaintiff again on May 7, 2002. Plaintiff had complained of diplopia, and Dr. Sullivant observed left mesial deviation of her eye. He stated that Plaintiff had continuing complaints of diffuse chronic imbalance, no energy, decreased interest in activities, and hedonism. He also stated that Plaintiff clearly had signs of depression, and that he hoped the Zoloft he had recently started her on would provide some benefit. He explained to Plaintiff that in individuals with MS, upwards of 50% can develop vegetative signs of depression. (AR 0102-03.)

On or about May 28, 2002, Plaintiff's employer submitted her claim for disability to Continental for review. (AR 0142-46.) Plaintiff's last date worked was listed as March 11 , 2002. (AR 0143.) A job description attached to the claim identified Plaintiff's occupation as Loan Clerk. The essential duties of a loan clerk include (1) typing information into a computer to prepare important documents, (2) proofreading, (3) sorting, (4) photocopying, (5) answering the telephone and conveying messages, (6) Processing commercial, mortgage, and consumer loan applications, (7) and maintaining department files. (AR 0144-0145.) The physical demands of Plaintiff's occupation were described as follows: While performing the duties of this job, the employee is frequently required to sit and talk, or hear. The employee is occasionally required to stand; walk, use hands and fingers to input data, handle, or feel objects, tools, or controls; and reach with hands and arms. The employee must occasionally lift and/or move up to 25 pounds. Specific vision abilities required by this job include close vision, color vision, and the ability to adjust focus. (AR 00145.)

Plaintiff subsequently submitted an Attending Physician's Statement signed by Dr. Sullivant, on June 3, 2002. (AR 0136-37.) Dr. Sullivant diagnosed Plaintiff as having "Multiple sclerosis, Diplopia, Depression." Dr. Sullivant described Plaintiff's symptoms as chronic imbalance, no energy, and decreased interest in activities and hedonism. (AR 00136.) Dr. Sullivant's physical limitations stated that Plaintiff was very fall prone, and that she therefore needed to avoid heights and balancing. Dr. Sullivant's prognosis was "poor balance & moderate dystaxia, avoid such actions and heights for life, course may be progressive." (AR 0137.)

Plaintiff's employer filled out a Physical Demands Analysis for her occupation as a Loan Clerk on July 10, 2002. It stated that Plaintiff's occupation involved 30 minutes of standing, 30 minutes of walking, and 1 hour of sitting at a time. Plaintiff sat a total of 6 hours per day, with 1 hour of standing and 1 hour of walking total. Plaintiff pushed a loan cart with 50 pounds of force up to 75 feet twice a day. Otherwise, Plaintiff was required to lift files and coin drawers ...

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