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Vega v. Cherry Corporation Long Term Disability Benefits Plan

July 21, 2009

AURIZA VEGA, PLAINTIFF,
v.
THE CHERRY CORPORATION LONG TERM DISABILITY BENEFITS PLAN DEFENDANT.



The opinion of the court was delivered by: Marvin E. Aspen, District Judge

Hon. Marvin E. Aspen

MEMORANDUM ORDER AND OPINION

Presently before us are cross-motions for summary judgment filed by Plaintiff Auriza Vega and Defendant The Cherry Corporation Long Term Disability Benefits Plan (the "Plan") and the Plan's motion to strike. For the reasons state below, we deny both motions and grant the Plan's motion to strike.

SUMMARY OF THE FACTS*fn1

Vega was employed by The Cherry Corporation ("Cherry Corp.") and was a covered participant under the Plan before she stopped working on October 20, 1998. (Def.'s 56.1(a)(3) Stmt. ¶ 1.) Continental Casualty Corporation insured the Plan under a group policy ("Policy"*fn2 issued to The Cherry Corp. and provided disability benefits to its employees who suffered from a Total Disability. (Id. ¶ 2.) Beginning in July 2007, Hartford Life and Accident Insurance Company ("Hartford") served as the underwriter of the policy and assumed responsibility for evaluating and administering claims made under the Plan. (Id. ¶ 3.) In March 1999, Vega filed a claim for long-term disability ("LTD") benefits due to arthritis. (Id. ¶ 5; Pl.'s 56.1(a)(3) Stmt. ¶ 3.) Vega's claim was denied and she unsuccessfully appealed that determination. (Def.'s 56.1(a)(3) Stmt. ¶¶ 6-8.) Vega then filed a suit in the Northern District of Illinois for review of that determination under the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1991 et. seq. ("ERISA") and was granted summary judgment in her favor. (Def.'s 56.1(a)(3) Stmt. ¶ 8.) Accordingly, Vega received LTD benefits from April 18, 1999 through July 18, 2007. (Id. ¶ 9.)

In July 2007, Hartford terminated Vega's LTD benefits when it concluded that she was not Totally Disabled, based on reports from Vega's treating physicians, an independent physician, and an Assessment of Employability conducted by Hartford. (Id. ¶ 11; Pl.'s 56.1(a)(3) Stmt. ¶¶ 6-16.) Under the Policy, 'Total Disability' means that, because of Injury or Sickness, the Insured Employee is:

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

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

(3) not gainfully employed in any occupation for which he is or becomes qualified by education, training or experience.

After the Monthly Benefit has been payable for the Insured Employee Occupation Period shown in Statement 4 of the Application, 'Total Disability' means that because of Injury or Sickness, the Insured Employee is:

(1) continuously unable to engage in any occupation for which he is or becomes qualified by education, training, or experience; and (2) under the regular care of a licensed physician other than himself. (Def.'s 56.1(a)(3) Stmt. ¶ 4, AR 00054.) The Insured Employee Occupation Period referred to in that definition is 24 months. (Id. ¶ 4, AR 00043.)

A. Physical Health Issues

Vega has experienced various health problems since 1995. She was diagnosed with systemic lupus erythematosus in 1995 (id. ¶ 12) and with rheumatoid arthritis, primarily affecting her knees, shoulders and wrists, in 1999 (id. ¶ 13, AR 00462). Her rheumatoid arthritis resulted in swelling and loss of range of motion in her hands, knees, shoulders, and wrists. (Id. ¶ 14.) In 2001, Vega began seeing Dr. Fetter, an orthopedic specialist, regarding stability problems in her knees. (Id. ¶¶ 15-16.) He indicated that he found "hypermobility of Vega's bilateral patella" and "no significant instability pattern," and recommended that she use slip-on knee supports and undergo rehabilitation. (Id. ¶ 16.) Since 2001, Vega's medical records contain no references to her lupus diagnosis and contain only occasional references to her knee pain. (Id. ¶ 18.)

In August 2001, Vega began complaining of low-back pain. She saw her internist, Dr. Martinez, who prescribed medication for this condition. (Id. ¶ 19.) Dr. Martinez ordered a diagnostic test, which was performed in October 2001 and indicated that Vega had "mild spurring consistent with mild degenerative joint disease." (Id. ¶ 20, AR 00326.) In May 2001, Dr. Martinez prescribed additional medication for Vega's complaints of back, knee, and shoulder pain. (Id. ¶ 21, AR 00334; Pl.'s Resp. Def.'s 56.1(a)(3) Stmt. ¶ 21.) In July 2001, Vega complained of back pain that radiated across her left side, which Dr. Martinez treated with prescription medication. (Id. ¶ 22.) A July 12, 2002 MRI conducted on Vega's spine showed a "small left paramedian disc herniation at L2-L3" and "slight bulging of the L4-L5 disc." (Id. ¶ 23, AR 00324.) The Plan states that Vega did not complain about her back at her next visit on September 12, 2002. (Def.'s 56.1(a)(3) Stmt. ¶ 24) However, the only legible portion of Dr. Martinez's notes for that visit indicate that Vega did complain of sharp pain, though it is not clear where the pain was located. (AR 00334.) At her next two visits, Vega complained of continued back pain. (Def.'s 56.1(a)(3) Stmt. ¶¶ 25-26.) During the second of those visits, on February 18, 2003, Dr. Martinez recommended that Vega consult a neurosurgeon about her herniated disc. (Id. ¶ 26.) Although at that time she told Dr. Martinez she would think about it, she stated in October 2004 that ...


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