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Deel v. Ameritech Long Term Disability Plan

February 29, 2008

PAULA DEEL, PLAINTIFF,
v.
AMERITECH LONG TERM DISABILITY PLAN, DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Paula Deel ("Deel"), a former employee of Ameritech Corporation, was in a serious motor vehicle accident that left her with chronic back pain. Asserting that her chronic back pain prevented her from performing any work, Deel made a claim for long term disability benefits from the Ameritech Long Term Disability Plan (the "Plan"). The Plan denied Deel's claim for benefits. Over seven and a half years later, Deel brought this action against the Plan to challenge its decision to deny her claim for benefits. Now before the Court are the parties' Motions for Judgment on the Administrative Record. For the reasons set forth below, Deel's Motion is denied and the Plan's Motion is granted.

FACTUAL BACKGROUND

A. Deel's Injury and her Claim for Disability Benefits

Deel was employed by the Illinois Bell Telephone Company as a full-time customer service representative from January 8, 1991 to July 25, 1996. (Answer at ¶ 8). On July 18, 1995, Deel was involved in an automobile accident in which her car, while stopped at a red light, was rear-ended by another vehicle that was traveling at 40 miles per hour. (AR 00063, 00445)*fn1 Following the accident, Deel began experiencing pain throughout her back with pain and numbness radiating into her legs. (AR 00063) Deel applied for and was awarded short-term disability benefits from Ameritech's Sickness and Accident Disability Benefits program as of July 25, 1995. (AR 00032) Deel received short-term disability benefits under that plan from July 26, 1995 to July 24, 1996, the maximum 52-week period permitted under that plan. (AR 00032; AR 00442)

When Deel's short-term disability benefits were about to expire, she filed a claim for long-term disability benefits under the Plan. (AR 00443) In her application for long-term disability benefits, Deel provided information regarding her condition, including the names of doctors who had been treating her and a statement from her primary orthopedic surgeon, Dr. Jeffrey Piccirillo ("Dr. Piccirillo"), opining that Deel was totally disabled for her occupation as well as any other occupation. (AR 00445; AR 00448) Deel further supported her claim with medical records spanning the time period July 1995 - June 1996. Deel's medial records for that time period demonstrate a history of not less than 11 visits to Dr. Piccirillo and a second doctor -- Dr. Mikuzis -- in which she complained persistently of back pain, numbness, tingling and burning in her legs, sleeping problems, difficulty walking, and urinary and bowel incontinence despite a course of treatment that included three epidural steroid injections, pain medication, and physical therapy. (AR 00054 - 90) Deel's medical records indicate that Deel's back pain worsened throughout this time period, despite treatment. Id.

As of June of 1996, Dr. Piccirillo had not found the cause, or etiology, of Deel's chronic back pain despite a number of diagnostic tests, including two myelographies (a radiography of the spinal cord and nerve roots), a CT scan of the spine and neck, and an EMG/NCV.*fn2 (AR 00045; 69; 77) Deel's first myelography -- on January 3, 1996 -- revealed a small anterior defect at the L4-L5 level and also some amputation to the left L5 nerve root at the L4-L5 disc space level. Id. at 00069. Deel saw Dr. Mikuzis for her EMG/NCV on January 8, 1996. Dr. Mikuzis noted, among other things, that Deel had (1) downgoing toes bilaterally; (2) a loss of knee jerk reflex on the right; and (3) low sural nerve amplitudes and low to mildly prolonged latencies on the right side. Id. at 00077. In March 1996, a CT scan of the spine and neck coupled with a second myelography, revealed "mild anterior extradural defects seen at the levels of C-3/C-4, C-4/C-5, C-5/C-6, and C-6/C-7." Id. at 00075. The defects produced "mild anterior indentation on the thecal sac . . . due to mild posterior osteophyte and associated bulging of the discs." Id. There were also "mild anterior extradural defects seen in the lower lumbar spine at the levels of L-3/L-4, L-4/L-5, and L-5/S-1." Id. Deel's medical records indicate that these "do not produce any nerve root indentation or amputation." Id.

Deel's doctors could not find any objective tests or findings that could explain her subjective complaint of low back pain. (AR 00126) X-rays of Deel's neck, chest and pelvis were normal. Id. at 00088. An August 24, 1995 MRI showed some degenerative changes in Deel's spine, but offered no evidence of a herniation or that any of the nerve roots that come off the spinal cord were pressed or pinched. Id. at 00098-90; 00117; 00153; 00187; 00190-193; 00196. On January 11, 1996, Dr. Piccirillo noted that Deel had undergone a CT that was essentially negative and an EMG/NCV that showed no conduction delays. Accordingly, Deel's physicians concluded that she suffered from myofascitic pain in the neck and back, which is a recently-developed diagnosis that is used to explain the subjective findings of back pain without the objective positive findings and studies. Id. at 00098 - 00101; 00129. The diagnosis is one of exclusion -- a catchall diagnosis for patients that have subjective complaints of pain that cannot be explained by test results. Id. at 00130-31.

On June 11, 1996, Dr. Piccirillo opined that Deel was completely disabled for her occupation and for any occupation due to her chronic pain. (AR 00448) However, Dr. Piccirillo, in the same document, also opined that Deel had no limitation with respect to seven occupational activities: (1) reaching (forward/overhead); (2) pushing/pulling/twisting (arm/leg controls); (3) grasping/handling; (4) finger dexterity; (5) repetitive movements (hands/feet); (6) operating electrical equipment; and (7) concentrated visual attention. Id. at 00447. He further opined that Deel was a suitable candidate for vocational rehabilitation and for therapeutic rehabilitation. Id. at 00448.

The plan administrator denied Deel's claim for disability benefits on September 4, 1996, noting a litany of objective tests indicating normal results and finding that Deel did not meet the definition of disability as noted in the Plan. (AR 00389) On September 14, 1996, Deel wrote a letter to the plan administrator appealing its decision to deny her claim for disability benefits. Id. at 00385 - 00388. In the letter, Deel reiterated her symptoms and noted that she had been found to be disabled by the Social Security Administration ("SSA"). Id. The plan administrator responded by letter dated November 15, 1996, advising Deel that the disability determination made by the SSA did not have an impact upon its determination that Deel was ineligible for disability benefits under the plan. Id. at 00383. The plan administrator noted that "we do not have objective medical evidence which would enable us to re-evaluate your claim" and indicated that Deel should submit such evidence "supportive of [her] diagnosis" within 30 days if she hoped for a different result upon re-evaluation of her claim. Id.

On June 20, 1997, Deel, through counsel, sent the Plan administrator another letter detailing the basis for her claim for disability benefits and requesting, among other things, a copy of the Plan governing her claim. (AR 00364 - 67) On August 19, 1997, the Ameritech Disability Service Center ("ADSC") sent Deel's counsel what it represented to be a "complete copy of Ameritech's nonsalaried LTD Plan," which document was dated January 1988. Id. at 00351 - 58. After Deel filed her complaint in this case, Defendant produced an Administrative Record that contained, as Exhibit 1, a version of the Plan dated June 1, 1996. Id. at 00003 - 18. Deel asserts that the June 1, 1996 version of the Plan had not been provided previously to her at any time. (Deel Mem. in Support of Mtn. for Judgment on Admin. Rec. at 7).

On December 31, 1997, Deel sent another letter to ADSC with additional evidence and argument as to why she believed she met the definition of "disabled." (AR 00347 - 49) Deel's additional evidence included transcripts of depositions of Deel's doctors that were taken during the course of a personal injury lawsuit relating to Deel's automobile accident. On May 5, 1998, ADSC sent a letter to Deel's counsel denying her appeal. Id. at 00297 - 98. The ADSC advised Deel that it based its decision to deny her claim upon a review of her medical records that was conducted by a physician specializing in occupational medicine. That physician, Dr. Avrim Simon, concluded that: (1) he had no up-to-date information regarding Deel's condition; and (2) after reviewing notes from Deel's treating doctors, diagnostic imaging, SSI letters, attorney communications and deposition transcripts (also of treating doctors), there were no objective findings to support any lumbar or cervical condition other than the "somewhat nebulous condition of Myofascial pain syndrome." Id. at 00025. He further concluded that Deel's medical records did not support her claim of urinary incontinence. Dr. Simon noted that myofascial pain syndrome is a "condition whereby patients complain of chronic, often disabling, pain that is not supported by objective findings." Id. Dr. Simon opined that Deel could be employed in certain sedentary occupations and that she might benefit from physical therapy and/or psychological counseling. Id. The ADSC credited that finding, noting that "[t]he medical review of the claim file provided supported that the claimant can be employed in some sort of sedentary position" involving minimal to no light lifting and a stretch or position change at regular intervals. Id. at 00298.At that point, the record before the ADSC included the results of a labor market survey performed by WorkSource International. Id. at 00302-07. That study indicated the availability of several positions that required only "occasional standing/walking and could be performed primarily sitting with the option to change positions at regular hourly intervals" with the additional occasional requirement of "lifting/carrying up to 10 pounds." Id. at 00303.

On July 2, 1998, Deel appealed this denial to Ameritech's Employee Benefit Committee (the "EBC"), the final internal appeal body for the Plan. That appeal was also denied. By letter dated September 30, 1998, the EBC advised Deel that it had reviewed the records provided by Deel and that it "did not observe physical findings or results of diagnostic testing that demonstrate the presence of a disabling condition." (AR 00023) The EBC noted that Dr. Piccirillo reported that "we still have not found the ...


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