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Migliorisi v. Walgreens Disability Benefits Plan

March 31, 2008


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


Plaintiff James Migliorisi, a former staff pharmacist at Walgreens Co. ("Walgreens"), is suing The Walgreens Disability Benefits Plan ("the Plan"), seeking to recover long-term disability benefits pursuant to ERISA section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). Miglioirisi claims that Paul Revere Life Insurance Company ("Paul Revere"), which administers the Plan, improperly denied his application for long-term benefits in 2001, and improperly upheld this decision in a 2005 reassessment. The parties have stipulated to a Rule 52(a) "trial on the papers," in which the court reviews the stipulated record, resolves any disputes of fact, and determines the outcome of the case. See, e.g., Marshall v. Blue Cross Blue Shield Ass'n, No. 04 C 6395, 2006 WL 2661039, at *1-2 (N.D. Ill. Sept. 13, 2006) (concluding that a Rule 52 trial on the papers is an appropriate procedure for resolving ERISA benefits disputes, absent objections from the parties). Accordingly, the court's findings of fact and conclusions of law are enumerated below.*fn1


Employment at Walgreens

1. Migliorisi, who has a Bachelor of Science degree in pharmacy, was employed as a staff pharmacist for Walgreens until February 18, 1999. (Pl.'s Resp. to Def.'s Proposed Findings of Fact [Pl.'s Resp. to PFF] ¶¶ 3, 6.)

2. As a staff pharmacist, Migliorisi was covered by Walgreens Group Policy No. G-28569 ("the Policy,") with the Paul Revere Life Insurance Co. (Pl.'s Resp. to PFF ¶ 7.)

3. A staff pharmacist at Walgreens is required to stand continuously during an eight-hour work shift, and frequently to lift and carry objects weighing as much as twenty pounds. (Pl.'s Resp. to PFF ¶ 5.)

Migliorisi's Medical History

4. Migliorisi contends in this lawsuit that his employment ended due to ulcerative colitis and pain arising from spondyloarthropathy, although the Plan disputes this. (Pl.'s Proposed Finding of Fact [Pl.'s PFF] ¶ 3; Def.'s Resp. to Pl.'s Proposed Findings of Fact [Def.'s Resp. to PFF] ¶ 3.)

5. "Ulcerative colitis is a chronic inflammatory and ulcerative disease arising in the colonic mucosa, characterized most often by bloody diarrhea." Mark K. Beers et al., The Merck Manual of Diagnosis and Therapy 155 (18th ed. 2006).

6. "Spondyloarthropathy" is an initial diagnosis used when a patient has a group of common symptoms associated with the chronic diseases in the spondylitis family but does not meet the criteria for diagnosis of any specific disease. Spondylitis Assoc. of Am., Undifferentiated Spondyloarthropathy, at "About," (last visited Mar. 19, 2008). Those symptoms can include one or more of the following: (1) inflammatory back pain, (2) unilateral or alternating buttock pain, (3) inflamation at the junction between bones and tendons or ligaments, (4) peripheral arthritis, (5) arthritis of the small joints, (6) swollen fingers or toes, (7) heel pain, (8) fatigue, and (9) inflammation of the iris. Id. at "Symptoms." "Spondylitis" is a name given to a group of chronic diseases involving inflammatory arthritis that primarily affect the spine, but may affect other areas as well. Id. at "Frequently Asked Questions," about/faq.aspx. When caused by a bowel disease such as ulceratitive colitis, spondylitis would be diagnosed as "Enteropathic Arthritis." Id.

7. Migliorisi was first diagnosed as having ulceratitive colitis in 1989 by an unidentified physician. (Pl.'s Resp. to PFF ¶ 22.) In March 1999, Migliorisi was referred by his internist, Dr. Cameron Thomson, to see Dr. Thomas Palella, a rheumatologist, for examination of his spondyloarthropathy. (Pl.'s Resp. to PFF ¶ 27.) Dr. Palella, in a review of Migliorisi's medical history, noted that Migliorisi's colitis was currently under "excellent clinical control." (Admin. R. [AR] at 0382.) Dr. Palella noted, further, that since 1993, Migliorisi had experienced "mild and periodic flares of his GI disease (apparently every two months)" and that "his bowel disease has apparently been under fairly good control" since 1993. (AR at 0381.)

8. Dr. Stephen Hanauer, a gastroenterologist, has treated Migliorisi's colitis since 1990. (AR at 0483.) Heexamined Migliorisi in December 1995, January 1997, March 1997, and July 1999, and noted on those datesthat Migliorisi's bowel disease was "quiescent," with "post-inflammatory changes." (Pl.'s Resp. to PFF ¶ 23.) As of March 1997, Dr. Hanauerwas "pleased to report" that biopsies of Migliorisi's colon "revealed no worrisome changes," providing "only evidence of inactive colitis," with "extensive scarring of the colon and numerous post-inflammatory polyps." (AR at 0558.)

9. By that September, however, Migliorisi complained to his internist, Dr.Thompson, that he was "unable to go to work half the time." He complained of a "messy divorce and break-up [with his] girlfriend" and stated that his "life [was] collapsing." Migliorisi told Dr. Thompson that he was seeing a psychiatrist and taking Prozac twice daily. (Pl's Resp. to PFF ¶ 24.) He also complained of fatigue and an increased need for sleep, as well as persistent back and leg pain, which he claimed was related to standing at work, and could be relieved by rest. (AR at 0140; Pl.'s Resp. to PFF ¶ 25.) Dr. Thomson's notes do not make clear whether Migliorisi's inability to go to work stemmed from his colitis, from his back and leg pain, or from his psychiatric problems. (AR at 0114.)

10. Dr. Thompson diagnosed Migliorisi as suffering from (1) ulcerative colitis, (2) fatigue, weakness, and an elevated need for sleep, "consistent with depression", and (3) spondyloarthropathy in his back. (AR 0140.)

11. Dr. Thompson next examined Migliorisi in June 1998; he repeated his prior diagnoses, and noted that the fatigue was the "same or worse." (Pl.'s Resp. to PFF ¶ 26.)

The Policy

12. Under the Policy, an employee is entitled to benefits for a 24-month period if he has become totally disabled from work in his "own occupation." These benefits were self-funded by Walgreens, and not part of Paul Revere's coverage. (Mot. for J. at 2; Policy at SB, 8.) After 24 months, the employee may recover benefits only if he is disabled from working in "any occupation." (Policy at SB, 11, 13.)

13. Migliorisi challenges the denial of his application for long term benefits under the Policy's long-term disability coverage, which provides benefits for employees who have become "totally disabled from any occupation." (Pl.'s Resp. to PFF ¶¶ 1-2, 11.) The Policy defines "any occupation" disability as follows:

Totally disabled from any occupation . . . means:

1. because of injury or sickness, the employee is completely prevented,[sic] from engaging in any occupation for which he is or may become suited by education, training or experience; and

2. the employee is receiving doctor's care. We will waive this requirement if we receive written proof acceptable to us that further doctor's care would be of no benefit to the employee.

(Policy at 8.)

Migliorisi's "Own Occupation" Disability Claim Application

14. On or about March 1, 1999, Migliorisi submitted an Employee Claim Application to Walgreens, signed by Dr. Thompson. (Pl.'s Resp. to PFF ¶ 12.) Thompson identified Migliorisi's conditions as ulcerative colitis, spondyloarthropathy, and myalgia; he stated that Migliorisi had been continuously and totally disabled from "2/20"through "now." (AR at 0154.)

15. At some point (the date is not clear from the record), Walgreens denied Migliorisi's application for "own occupation" disability benefits. The letter of determination was not included in the administrative record, however, and neither of the parties have provided the court with a copy of it. (See Pl.'s Resp. to PFF ¶ 15.)

16. On September 15, 2000, Migliorisi's attorney sent a letter to Walgreens seeking review and reconsideration of its decision that Migliorisi was not entitled to "own occupation" disability benefits. (AR at 0491.) Walgreens did reverse its prior determination and decided on December 13, 2000, that Migliorisi was entitled to "own occupation" disability benefits for his first two years of disability. (AR at 0500.) Walgreens paid Migliorisi benefits for the period from February 19, 1999 through February 20, 2001. (Def.'s Resp. to PFF ¶ 9.) "Any Occupation" Disability Benefit Application

17. In December 2000, Migliorisi received notice that Paul Revere would be responsible for determining his eligibility for long-term disability benefits under the "any occupation" disability standard. (Pl.'s Resp. to PFF ¶ 18.)

18. On January 15, 2001, Migliorisi submitted a supplemental statement in connection with Paul Revere's review, in which he stated that the only changes since his last reportwere decreased mobility, chronic fatigue, and decreased concentration due to his medications. (AR at 0522.) The supplemental statement did not make clear what his "last report" was, or when it was filed, however.

19. Paul Revere denied Migliorisi's "any occupation" disability claim on March 27, 2001, and upheld this decision on two successive appeals in September 2001 and February 2002. (Pl.'s Resp. to PFF ¶¶ 20-21.)

Migliorisi's Ulcerative Colitis

20. As discussed above, Migliorisi's ulcerative colitis was "quiescent" from 1995 through 1999; Dr. Hanauer described it as "inactive" in 1997 and as "well controlled" in 1999. (Pl.'s Resp. to PFF ¶ 23.) In his March 29, 1999 summary of Migliorisi's medical history, made after Dr. Thomson's referral of Migliorisi, Dr. Palella (as noted, a rheumatologist) observed that Migliorisi's bowel disease "has apparently been under fairly good control" since 1993. (Pl.'s Resp. to PFF ¶ 31.) Migliorisi nevertheless contends that Dr. Palella's March 29, 1999 notes show that he was suffering from both constipation and diarrhea "constantly." (Pf.'s PFF ¶ 83.) In fact, however, Dr. Palella did not note any complaints of frequent diarrhea ...

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