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Rice v. ADP Totalsource, Inc.

United States District Court, N.D. Illinois, Eastern Division

March 28, 2013

RICHARD RICE, Plaintiff,

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[Copyrighted Material Omitted]

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For Richard Rice, Plaintiff: Stephen C. Debboli, LEAD ATTORNEY, Serpico, Petrosino & DiPiero, Ltd., Chicago, IL.

For ADP TotalSource, Inc., as Plan Administrator of the ADP TotalSource, Inc. Health and Welfare Plan, Aetna Life Insurance Co., ADP TotalSource, Inc. Health and Welfare Plan, Defendants: Eric P. Mathisen, LEAD ATTORNEY, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Valparaiso, IN; Kimberly Ann Jones, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Chicago, IL; Lisa A. Dreishmire, Board of Education for the City of Chicago, Chicago, IL.


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Virginia M. Kendall, United States District Court Judge.


Plaintiff Richard Rice (" Rice" ) filed this suit against Aetna Life Insurance Company (" Aetna" ), ADP TotalSource, Inc. (" ADP" ), and ADP TotalSource, Inc. Health and Welfare Plan (" the Plan) pursuant to Section 501(a)(1)(B) of the Employee Retirement Income Security Act (" ERISA" ), 29 U.S.C. 1132(a)(1)(B). Rice alleges he was denied disability insurance benefits to which he is entitled under an employer-sponsored benefit plan subject to ERISA. Rice and Aetna have filed cross-motions for summary judgment. In spite of the unfortunate circumstances and the misfortune of a matter of hours defining the difference as to whether Rice can receive benefits, the Court denies Rice's Motion for Summary Judgment and grants Aetna's Cross-Motion for Summary Judgment. This is one of those circumstances in a judge's review of the law when 'how one wishes to decide a case comes lightly to mind, on a wing; but often how one must decide it comes arduously, weighed down by somber thought.'" (quoting De Letelier v. Republic of Chile, 748 F.2d 790, 791 (2d Cir. 1984), cert. denied, 471 U.S. 1125, 105 S.Ct. 2656, 86 L.Ed.2d 273 (1985).


ADP provided long-term disability insurance benefits to eligible employees as part of an employee welfare benefit plan. (Def. 56.1 St. ¶ 3.) These benefits were funded by an insurance policy (the " Policy" ) issued by Aetna. ( Id. ¶ 5.) Rice was hired by Westin Engineering, Inc., a subsidiary of ADP, on July 8, 2009 and became eligible for benefits under the Policy on August 1, 2009.[2] (Def. 56.1 Resp. ¶ 11; AR 81.)

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I. Rice's Treatment

On July 6, 2009, two days before beginning his employment with Westin, Rice presented complaints of headaches to his primary care physician, Dr. Jorge Balandrin. ( Id. ¶ 14; AR 103.) Dr. Balandrin recommended that Rice undergo a brain MRI and MRA.[3] ( Id. ) Rice underwent a brain MRA and MRI on July 31, 2009, one day before his effective date of coverage. ( Id. ¶ 15; AR 106.) The MRA revealed minimal displacement of his anterior cerebral arteries toward the right consistent with mass effect. ( Id. ) The MRI revealed findings consistent with an infiltrative relatively low grade tumor/glioma[4] predominantly involving deep structures of the posterior left cerebral hemisphere ( Id. ¶ 16; AR 104.) The MRI report also noted associated mass effect with compression of Rice's posterior left lateral ventricle and atrium of left lateral ventricle. ( Id. )

On October 2, 2009, Rice was evaluated by Dr. Kelly Nicholas at the Neuro-Oncology Clinic at University of Chicago Medical Center to discuss his diagnosis and treatment options. ( Id. ¶ 18; AR 192-93.) Dr. Nicholas noted that due to progressively worsening headaches during the summer of 2009, Rice had undergone a biopsy by Dr. James Chandler in August 2009,[5] which resulted in a diagnosis of low grade astrocytoma.[6] ( Id; AR 192.) Dr. Nicholas noted that Rice felt somewhat tired, struggled to find words occasionally, but otherwise felt well and continued to work some full days and other half days. ( Id. ) Dr. Nicholas also reviewed Rice's July 31, 2009 MRI and recommended that given his age and the tumor size and mass effect, the tumor should be treated sooner rather than later. ( Id; AR 192-93.) Specifically, Dr. Nicholas recommended radiation treatment and possibly adding Temozolomide (" TMZ" ) chemotherapy treatment. ( Id. ) Rice met with Dr. Nicholas on February 12 and March 12, 2010 for follow-up during his radiation and chemotherapy. ( Id. ¶ 19; AR 188, 190.) During these appointments Dr. Nicholas noted complaints of headaches and fatigue. ( Id. ) He also noted that a February 2, 2010 brain MRI indicated that Rice was stable, showing evidence of diffuse involvement of both hemispheres. ( Id. )

On April 9, 2010, Rice underwent a biopsy that revealed findings consistent with Glioblastoma Multiforme (" GBM" ), a malignant brain tumor.[7] ( Id. ¶ 20; AR 185.)

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While, Dr. Nicholas noted that Rice remained clinically stable with no significant deficits, he recommended altering Rice's chemotherapy treatment to include Avastin. ( Id; AR 186-187.) Dr. Rimas Lukas, M.D. at the University of Chicago Medical Center, evaluated Rice on April 16, 2010 to discuss treatment options for Rice's recently diagnosed GBM. ( Id. ¶ 20; AR 185.) Dr. Lukas noted that after Rice had undergone three rounds of adjuvant TMZ, an imaging study revealed an area of enhancing lesion adjacent to the left lateral ventricle. ( Id. )

Rice saw Dr. Nicholas on May 14, June 11, and July 9, 2010 for follow-up chemotherapy treatment for his GBM. ( Id; AR 179, 181, 183.) Dr. Nicholas noted that although Rice was experiencing treatment and tumor-related side effects of fatigue and cognitive deficits, he remained clinically and radiographically stable on his treatment of Avastin and TMZ. ( Id. ) Specifically, at Rice's May 14, 2010 appointment, Dr. Nicholas noted that Rice was doing well, that his energy was good, and that he continued to work full time. ( Id.; AR 181-84.) On June 11, 2010, Dr. Nicholas reported that Rice had more energy and, based on a June 10, 2010 MRI, was clinically and radiographically improved. ( Id. ) On July 9, 2010, Nicholas noted that although Rice was doing a fair amount of work from home, he remained clinically and radiographically stable. ( Id.; AR 179.)

Rice ceased working at Westin on July 16, 2010 due to malignant neoplasm of the brain and chemotherapy treatment. ( Id. ¶ 12.) He then applied for and received short-term disability benefits under Aetna's short-term disability Policy, alleging a date of disability of July 16, 2010. ( Id. ¶ 24; AR 2, 228.) On July 21, 2010, Dr. Nicholas completed an attending physician statement in support of a long-term disability benefits claim. ( Id. ¶ 22; AR 126-27.) Dr. Nicholas noted in the statement that Rice was unable to work due to tumor-related side effects of decreased memory, difficulty multi-tasking, decreased concentration, as well as treatment-related side effects of fatigue and nausea. ( Id. ) The next day, July 22, 2010, Rice saw Dr. Balandrin, who listed Rice's diagnoses as GBM and depression. ( Id. ¶ 23; AR 162.) On or about September 10, 2010, Rice applied for long-term disability benefits under the Policy. (Pl. 56.1 St. ¶ 16; AR 2, 39, 51.) If approved, Rice's long-term disability benefits would have become effective on October 18, 2010, at the end of his short-term disability period. (Def. 56.1 St. ¶ 24; AR 2, 39, 51.) However because Rice's first date of disability (July 16, 2010) was less than 12 months after his coverage began (August 1, 2009), his claim was subject to a pre-existing condition review to determine whether he had been diagnosed, treated, or had received medication for his alleged disability condition during the three months prior to his effective date of coverage. ( Id. ¶ 13; AR 22.)

II. Relevant Policy Language

Under the terms of the Policy, an insured is considered disabled when Aetna determines that (1) the insured cannot " perform the material duties of [his or her] own occupation solely because of an illness, injury or disabling pregnancy-related condition," and (2) the insured's " earnings are 80% or less of [his or her] adjusted pre-disability earnings." ( Id. ¶ 7; Policy 100.) The Policy also contains the following exclusion for pre-existing conditions:

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A pre-existing condition is an illness, injury, or pregnancy-related condition for which, during the 3 months before your coverage or increase in coverage became effective:
-you were diagnosed or treated; -you received diagnostic services; or-you took drugs that were prescribed or recommended by a physician.
The plan does not pay for benefits for a disability caused, or contributed to, by a pre-existing condition, if the disability starts within the first 12 months after your coverage goes into effect.

( Id. ¶ 8; Policy 102-103.)

Aetna reviews and determines eligibility for long-term disability claims pursuant to the terms of the Policy and the Plan. ( Id. ¶ 6.) The Plan confers upon Aetna discretionary authority to:

determine whether and to what extend eligible employees and beneficiaries are entitled to benefits and to construe any disputed or doubtful terms under the Policy, the Certificate or any other document incorporated herein. We shall be deemed to have properly exercised such ...

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