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Gardner v. Sickness

September 30, 2009


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


The plaintiff, Melissa Gardner, has brought this civil action, pursuant to Section 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 ("ERISA"), codified at 29 U.S.C. § 1132(a)(1)(B), to recover benefits from short-term and long-term disability benefits plans established by her former employer. Gardner and the defendants, Ameritech Sickness & Accident Disability Plan and Ameritech Long Term Disability Plan (referred to collectively as "Plans" or "Defendants") have cross-filed for summary judgment (Docs. 19, 25).*fn1 In addition, Gardner has moved to strike certain affidavits filed by Defendants and has asked the Court to take judicial notice of certain other affidavits (Docs. 35, 37).

For the reasons that follow, the motion to strike and the request for judicial notice are ALLOWED to the extent provided herein. The motions for summary judgment are DENIED.


Gardner worked for Illinois Bell Telephone Company (hereinafter "AT&T") as a Marketing Support Specialist from February 12, 2001 until she requested medical leave on March 13, 2006.*fn2 (Defs.' UMF ¶ 3). As a Marketing Support Specialist, Gardner's job duties were sedentary in nature and consisted primarily of communicating with customers via telephone and coordinating the provision of various user-related services. (Defs.' UMF ¶ 4; Pl.'s SJ Mem. at p. 13). As an AT&T employee with over six months of employment with the company, Gardner was enrolled in the Ameritech Sickness & Accident Disability Benefit Plan (the company's short-term disability benefit plan, or "SADB Plan") and the Ameritech Long Term Disability Plan ("LTD Plan"). (Defs.' UMF ¶ 5; R-0043).*fn3

The Plans

Under the SADB Plan, an eligible employee is entitled to benefits "on account of Disability." (SADB Plan, Section 3.1(a), R-0008). The term "Disability" is defined, in part, as follows:

[A] sickness or injury, supported by objective medical documentation, that prevents the Eligible Employee from performing the duties of his/her last Company or Participating Company-assigned job with or without reasonable accommodation (as determined by the Company or its delegate) or any other job assigned by the Company or Participating Company for which the Eligible Employee is qualified with or without reasonable accommodation (as determined by the Company or its delegate). (SADB Plan, Section 2.4, R-0007). If the Disability is due to an off-the-job illness or injury, benefits under the SADB Plan begin after a seven-day "Waiting Period" and continue for up to 52 weeks. (SADB Plan, Sections 2.4 & 3.1, R-0007-08). The LTD Plan provides for benefits if the employee is still disabled, due to an off-the-job illness or injury, after the employee has exhausted SADB Plan benefits.*fn4

Under the terms of the Plans, the "Company" (defined by the Plans as "Ameritech Corporation") is designated Plan Administrator and the Company is directed to appoint the "Committee" to handle the administrative responsibilities associated with the Plans. (SADB Plan, Section 6.1, R-0021; LTD Plan, Section 5.1, R-0031). The term "Committee" is defined as follows:

[T]he Ameritech Employees' Benefit Committee. "Committee" shall also mean, where appropriate, any applicable subcommittee or any duly authorized delegate of the Company, a Participating Company or the Committee as the case may be. Such duly authorized delegate may be an individual or organization within the Company, the Participating Company or the Committee or may be an unrelated third party individual or organization. (SADB Plan, Section 2.2, R-0007; LTD Plan, Section 2.2, R-0027). The Plans designate both the Company and the Committee as named fiduciaries for purposes of ERISA. (SADB Plan, Section 6.1, R-0021; LTD Plan, Section 5.1, R-0031).

The Plans direct the Committee to "grant or deny claims for benefits... and authorize benefit payments." (SADB Plan, Section 6.2(d), R-0021; LTD Plan, Section 5.2(d), R-0031). In addition, the Plans designate the Committee as "the final review committee, under the Plan[s] and ERISA, for the review of all appeals by individuals whose initial claims for benefits have been denied, in whole or part." (SADB Plan, Section 6.2(e), R-0022; LTD Plan, Section 5.2(e)). The Plans also contain the following provisions:

The Committee has full discretionary authority to interpret the terms of the Plan[s] and to determine eligibility for and entitlement to Plan benefits in accordance with Plan terms. The Committee shall determine conclusively for all parties all questions arising in the administration of the Plan[s] and any decision of the Committee shall not be subject to further review.

The Company may allocate responsibilities for the operation and administration of the Plan[s] consistent with... Plan[ ] terms. The Company and other named fiduciaries may delegate any of their responsibilities hereunder by designating in writing other persons to carry out their respective responsibilities under the Plan[s], and may employ persons to advise them with regard to any such responsibilities. Any person or group of persons may serve in more than one fiduciary capacity with respect to the Plan[s]. (SADB Plan, Section 6.2(f)-(g), R-0022; LTD Plan, Section 5.2(f)-(g), R-0032).

Delegation of Claims Administration Authority

On July 2, 2008, Defendants submitted a declaration by Nancy Watts, a senior benefits analyst at AT&T Services, Inc. In the declaration, dated June 30, 2008, Watts attested to "managing, for litigation purposes, the administrators of the ERISA-governed disability plans of subsidiaries of AT&T and providing subject matter expertise, again for litigation purposes[,] on those disability plans, including the Ameritech Long Term Disability Plan... and the Ameritech Sickness and Accident Disability Plan...." (Doc. 11, 6/30/2008 N. Watts Decl. ¶ 2). After restating certain Plan provisions relating to Plan administrative structure, Watts stated,

Effective November 8, 2000, the Company appointed the SBC Quality Review Unit ("the Unit"), as the Appeal Administrator for the Plans. A true and correct copy of the Summary of Material Modifications issued on or about November 8, 2000 informing Plan participants of this appointment is attached hereto as Exhibit A. In 2001, the name of the Unit was changed to the SBC Medical Absence and Accommodation Resource Team ("SMAART") Quality Review Unit and effective March 1, 2006, the name of the Unit was changed to the AT&T Integrated Disability Service Center Quality Review Unit, which is its current name. (6/30/2008 N. Watts Decl. ¶ 6). No exhibits were attached to the declaration. Watts concluded by asserting, "The Unit, therefore, has the same authority and discretion as the Committee to interpret the terms of the Plans and to determine eligibility for benefits pursuant to the Plans' terms." (6/30/2008 N. Watts Decl. ¶ 7). On December 22, 2008, Defendants filed a document which, ostensibly, was the document that Watts referred to as Exhibit A in her June 30, 2008 declaration. The document purports to be a "Summary of Material Modifications" ("SMM") to the SADB and LTD Plans, notifying Plan participants that as of November 8, 2000, the SBC Quality Review Unit would be appointed as Appeals Administrator for the Plans. (Doc. 24, 11/8/2000 SMM).*fn5

On January 29, 2009, as part of the briefing on summary judgment, Defendants filed a "Supplemental Affidavit of Nancy Watts," dated January 19, 2009. (Doc. 30, Ex. A to Defs.' Mem. in Opp. to Pl.'s SJ Mot., 1/19/2009 N. Watts Supp. Decl.). The supplement was apparently designed to clarify the delegation of claims-administration authority under the Plans. Watts identified AT&T Integrated Disability Service Center Quality Review Unit (the Plans' most recent appeals administrator, according to the record) as being a division of Sedgwick Claims Management Services, Inc. -- an independent company outside the AT&T corporate umbrella. According to Watts, Sedgwick was appointed on April 9, 2001 to decide benefit claims under the Plans and has served as claims administrator since that date. (1/19/2009 N. Watts Supp. Decl. ¶¶ 7-13). And, according to Watts, immediately before Sedgwick was appointed as the Plans' claims administrator, the Human Resources Department of SBC Communications, Inc. had been serving in that capacity for some time. (1/19/2009 N. Watts Supp. Decl. ¶¶ 7-8). As will be discussed more fully below, Gardner has moved to strike both of Watts' affidavits.

Documentation of Gardner's Medical Condition

Gardner began experiencing an aching-type back pain in early March 2006 when standing up from a seated position. The pain quickly worsened and became more acute. (Defs.' UMF ¶¶ 11-12). On March 13, 2006, Gardner visited the emergency room at Proctor Hospital in Peoria, Illinois due to the back pain. She was admitted to the hospital, prescribed morphine sulphate for the pain, and referred to Bruce Chien, M.D. Dr. Chien is board certified in anesthesiology, internal medicine, and pain medicine. (Pl.'s SOF ¶ 16; R-0295). An MRI of Garnder's lumbar spine, taken on March 14, 2006, revealed "[d]egenerative disc disease evident by mild degenerative dehydration and loss of disc space height of the L3-L4, L4-L5, and L5-S1 discs.... associated with... posterior central annular tears of the L3-L4, and L5-L5 discs." (Pl.'s SOF ¶ 17; R-0291). She was given a midline L4 epidural steroid injection on March 15, 2006, which she tolerated well and which alleviated her pain to some degree. (R-0299). A March 23, 2006 MRI of Gardner's cervical spine showed no abnormalities except for mild annular bulges of the C3-C4, C4-C5, and C5-C6 discs. (R-0300).

Dr. Chien referred Gardner to Richard Flores, M.D., with the Central Illinois Rehabilitation Associates, for Neurosensory testing and Electronueromyography ("EMG"). In examining Gardner on April 3, 2006, Dr. Flores observed "[l]umbar nerve root lesion, [c]ubital tunnel syndrome, and [p]eripheral neuropathy." (R-0304). Neurosensory testing of Gardner's upper and lower extremities showed "moderate to severe bilateral sensory polyneuropathy with beginning axonal loss, especially in the lower extremities." (R-0306). EMG of the upper and lower extremities showed "[b]ilateral mild to moderate denervation in the ulnar nerve distribution from the elbows distally bilaterally" and "[m]ild bilateral L4 radiculopathies." (R-0306). Grip and pinch testing revealed reduction in Gardner's grip strength. (R-0306).

On April 17, 2006, Dr. Chien performed another midline L4 epidural steroid injection on Gardner. (R-0358). The preoperative and postoperative diagnosis was "[b]ilateral L4 radiculopathy" and "left C7 radiculopathy." (R-0358).

On April 20, 2006, Gardner underwent a CT scan of her lumbosacral spine with an injection of contrast at the L4-L5 disc. The scan showed "evidence of disruption of the L4-L5 disc annulus posteriorly with extension of contrast to the posterior annulus near the midline into the epidural space and also to the left along the left." (R-0377). A discogram examination at the L4-L5 level, also performed on April 20, 2006, revealed "[c]oncordant 7 out of 10 pain demonstrated with injection of the L4-L5 disc space" and "significantly diminished disc tugor at this level and evidence of penetration of contrast into, if not through, the annular region posteriorly." (R-0379).

On May 3, 2006, Dr. Chien wrote a letter to Lou'litha Walls, employed with the AT&T Integrated Disability Service Center ("IDSC"), which stated as follows: "Ms. Gardner has a ruptured L4 disc by discography and bilateral lumbar radiculopathy (L4). At the current time she cannot stand or sit for any period more than about 3 minutes. She is completely disabled from all work at the current time. She ...

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