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Curtis v. Hartford Life & Accident Ins. Co.

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

August 20, 2014

CINDY CURTIS, Plaintiff,
v.
HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, Defendant

Page 1199

For Cindy Curtis, Plaintiff: Bridget L. O'ryan, PRO HAC VICE, O'ryan Law Firm, Indianapolis, IN; Mark D. DeBofsky, DeBofsky & Associates, PC, Chicago, IL.

For Hartford Life and Accident Insurance Company, Defendant: Jill M Johnson, Richard J. Pautler, LEAD ATTORNEYS, Thompson Coburn Llp, St. Louis, MO; Susan M Lorenc, Thompson Coburn LLP, Chicago, IL.

Page 1200

MEMORANDUM OPINION AND ORDER

Jeffrey T. Gilbert, United States Magistrate Judge.

Plaintiff Cindy Curtis (" Curtis" ) filed this lawsuit under § 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (" ERISA" ), 29 U.S.C. § 1132(a)(1)(B), seeking to recover long-term disability benefits under a plan that her former employer established through Defendant Hartford Life and Accident Insurance Company (" Hartford" ). The parties have stipulated to a " trial on the papers" under Federal Rule of Civil Procedure 52(a). See, e.g., Hess v. Hartford Life & Accident Ins. Co., 274 F.3d 456, 461 (7th Cir. 2001) (deciding that a trial on the papers is an appropriate procedure for resolving ERISA disputes). Having reviewed the written record, the Court enters the following findings of fact, found by a preponderance of the evidence, and conclusions of law, and finds

Page 1201

in favor of Curtis.[1]

FINDINGS OF FACT

A. The Parties

1. Curtis was born in 1960 and has been a resident of Kankakee, Illinois at all times relevant to this litigation. (Plaintiff's Proposed Findings of Fact [88] (" Pl.'s PFF" ) ¶ 1.)

2. Curtis was employed as an operating room registered nurse at Children's Memorial Hospital (" Hospital" ) from February 1987 until January 2007. (Pl.'s PFF ¶ 13, Defendant's Proposed Findings of Fact [87] (" Def.'s PFF" ) ¶ 1, Curtis Social Security Administration Record [103] (" Curtis SSA" ) 175.)

3. As a Hospital employee, Curtis was covered under the Hospital's Long Term Disability Plan (" Plan" ), which provides long term disability (" LTD" ) benefits through an insurance policy issued by Hartford. (Pl.'s PFF ¶ ¶ 2, 3.)

B. Relevant Plan Provisions

4. An employee is entitled to a monthly benefit if she becomes " Disabled" while insured under the Plan. (Hartford Administrative Record [86] (" R." ) 10.)[2]

5. " Disability or Disabled" means:

o " [For the first 180 consecutive days of any disability period], you are prevented from performing one or more of the Essential Duties of Your Occupation" (the " Elimination Period" ). (Pl.'s PFF ¶ 5; Def.'s PFF ¶ 8; R. 6, 30.)
o " For the 24 months following the Elimination Period, you are prevented from performing one or more of the Essential Duties of Your Occupation, and as a result your Current Monthly Earnings are less than 80% of your Indexed Pre-disability Earnings" (the " Own Occupation Period" ). (Pl.'s PFF ¶ 5, Def.'s PFF ¶ 8, R. 30.)
o " After that, you are prevented from performing one or more of the Essential Duties of Any Occupation" (the " Any Occupation Period" ). ( Id. )

6. " Your Occupation" is the employee's occupation " as it is recognized in the general workplace." (Pl.'s PFF ¶ 7, Def.'s PFF ¶ 9, R. 36.)

7. " Any Occupation" is an occupation for which the employee " [is] qualified by education, training or experience" and that has a minimum earnings threshold which is individually calculated for each employee. (Pl.'s PFF ¶ 8, Def.'s PFF ¶ 33, R. 29.) Curtis's minimum earnings threshold is $4,100.38 per month. (R. 268.)

8. An " Essential Duty" is " a duty that: 1. is substantial, not incidental; 2. is fundamental or inherent to the occupation; and 3. can not be reasonably omitted or changed." (R. 29.) Attending work for the number of hours in a regularly scheduled workweek is an Essential Duty. (Pl.'s PFF ¶ 6, Def.'s PFF ¶ 33, R. 29.)

9. The Plan requires a disabled [3] employee to submit " Proof of Loss satisfactory to us [Hartford]" in order to collect benefits. (Pl's PFF ¶ 11, R. 10.) Proof of loss includes, but is not limited to, any and all medical information, including medical records, diagnoses, prognoses, histories,

Page 1202

examination notes, and treatment notes. (Pl.'s PFF ¶ 10, R. 23.)

10. The Plan provides that Hartford will terminate benefit payments when, among other things, an employee is no longer disabled or fails to submit satisfactory proof of loss. (Pl.'s PFF ¶ 12, R. 11.)

11. The Plan further provides that if an employee is disabled due to a " Mental Illness," benefits will be limited to 24 months total. (R. 12.) The Plan defines " mental illness" as " any psychological, behavioral or emotional disorder or ailment of the mind, including physical manifestations of psychological, behavioral or emotional disorders, but excluding demonstrable, structural brain damage." (R. 31.)

12. The Plan's coverage terminates when an employee is no longer actively employed full time or, if employment is terminated because of a disability, the employee is no longer entitled to benefits under the Plan. (R. 20-21.)

C. Curtis' Coverage under the Plan

13. Curtis was injured in a car accident on January 30, 2007 and was unable to return to work as an operating room nurse thereafter. (Pl.'s PFF ¶ 14.)

14. She subsequently received disability benefits from Hartford at a gross monthly rate of $3,864.64, uninterrupted, for the duration of the Elimination and Own Occupation Periods. (Pl.'s PFF ¶ ¶ 15-16.)

15. The Any Occupation Period became applicable on August 6, 2009. (Def.'s PFF ¶ 31.) In a July 2009 letter, Hartford notified Curtis that her benefits would terminate when the Any Occupation Period became applicable because she would no longer be disabled under the terms of the Plan. (R. 61.) Specifically, Hartford determined that Curtis could perform light to medium level work and listed a number of occupations within the physical and mental capabilities for which Hartford determined she was qualified. (R. 64.)

16. Curtis filed an administrative appeal on October 28, 2009, requesting that Hartford reconsider its decision to terminate benefits. (R. 524-25.)

17. Hartford upheld its decision on April 2, 2010, concluding that " the weight of the evidence does not substantiate impairment which would have prevented [Curtis] from performing Any Occupation as of August 6, 2009." (R. 54.) Specifically, Hartford determined that Curtis could work at a sedentary level with the ability to change position as, for example, a medical case manager, nurse consultant, nurse administrator, nurse educator, care coordinator nurse, or nursing care facility nurse. ( Id. )

D. Curtis' Medical History

Curtis's relevant medical history is presented below chronologically by treatment provider.

1. Brian J. Cole, M.D., M.B.A.

18. On October 29, 2007, Dr. Brian Cole, Curtis's treating orthopedic surgeon, reviewed an X-ray of Curtis's left shoulder and noted a narrowing of the superior aspect of the glenohumeral joint and left shoulder pain due to both capsulitis and osteoarthritis. (Pl.s PFF ¶ 19, R. 379.) Dr. Cole subsequently performed a left shoulder arthroscopic capsular release and microfracture glenoid on November 10, 2007. (Pl.'s PFF ¶ 20, R. 617-18.)

19. Dr. Cole examined Curtis on December 20, 2007 and noted her right rotator cuff tendinitis. (R. 647.) He reviewed X-rays of Curtis's right shoulder and saw some mild acromioclavicular joint arthritis. ( Id. ) He felt Curtis was a candidate for right shoulder surgery since more conservative

Page 1203

treatment options did not seem to be helping. ( Id). On February 1, 2008, he performed a right shoulder arthroscropic subacromial decompression and surgical debridement of labral fraying. (Pl.'s PFF ¶ 22, R. 615-16.)

20. Dr. Cole diagnosed Curtis with right elbow medial epicondylitis, commonly known as tennis elbow, on February 8, 2008. (Pl.'s PFF ¶ 25, R. 646.) Curtis had previously received three elbow injections in an effort to alleviate her pain. (R. 646.) She received a fourth injection on March 20, 2008. (Pl.'s PFF ¶ 25, R. 352.)

21. Dr. Cole injected Curtis's left shoulder with 9 cc of lidocaine and 40 mg of Depo-Medrol on May 15, 2008, following Curtis's continued complaints of osteoarthritic pain. (Pl.'s PFF ¶ 26, R. 355.)

22. Dr. Cole administered an injection in Curtis's right shoulder on June 26, 2008. (Pl.'s PFF ¶ 29, R. 356.) At Curtis's August 7, 2008 follow-up visit, Dr. Cole noted that the injection " helped marginally to at least taper her symptoms somewhat," but observed lingering mild impingement signs and mild weakness at the rotator cuff secondary to discomfort. (Pl.'s PFF ¶ 31, R. 358.)

23. Dr. Cole examined Curtis on January 1, 2009 and found tenderness consistent with persistent tennis elbow. (Pl.'s PFF ¶ 35, R. 359.) He administered a lidocaine and Depo-Medrol injection and indicated Curtis for medial epicondyle debridement surgery of the right elbow. ( Id. )

24. Dr. Cole performed the medial epicondyle debridement surgery on January 21, 2009. (Pl.'s PFF ¶ 36, R. 619-20.) Dr. Cole noted that Curtis was " doing well" and that her exam was " within normal limits" at her February 2, 2009 follow-up appointment. (R. 360.) He referred Curtis to Dr. Robert Katz for management of her fibromyalgia. ( Id. )

25. On May 5, 2009, Dr. Cole observed continued tenderness in Curtis's right shoulder and flexor mass of her right forearm. (Pl.'s PFF ¶ 44, R. 393.) Dr. Cole also noted:

We are going to help Cindy with her Disability paperwork and convey that she is, although not totally disabled, markedly disabled and capable of likely only a sedentary type job with the ability to alternate to sit and stand. She was satisfied with this and will look for the paperwork. (R. 393.)

26. On May 19, 2009, at Hartford's request, Dr. Cole completed a Physical Capacities Evaluation Form (" PCE" ), in which he opined that Curtis could:

o sit four hours at a time for four to six hours per day;
o stand a half hour at a time for one hour per day;
o walk a half hour at a time for one hour per day;
o frequently (34-67%) reach at and below waist/desk level;
o frequently (34-67%) feel with both hands (sensing temperatures and textures);
o occasionally (1-33%) handle with both hands (gross motor gripping, holding, grasping);
o occasionally (1-33%) finger with both hands (fine motor);
o occasionally (1-33%) lift, carry, push, and pull up to twenty pounds, though never more;
o occasionally (1-33%) drive;
o occasionally (1-33%) stoop; and
o never climb, balance, kneel, crouch, crawl, or reach above the shoulder.

Page 1204

(Pl.'s PFF ¶ 45, R. 807-08.) Dr. Cole noted that Curtis' condition was likely to be aggravated by a cold environment, and that " [d]ue to fibromyalgia and multiple ongoing chronic inflammatory joint conditions, any work of repetitive nature [is] extremely limited." ( Id. ) Dr. Cole further stated that Curtis's status had not changed since the Functional Capacity Evaluation (" FCE" ) completed on August 4, 2008 ( see " Accelerated Rehabilitation Center," Findings of Fact ¶ ¶ 33-35, infra ). (R. 808.)

27. On June 4, 2009, Hartford sent Dr. Cole a letter pointing out that, although Dr. Cole indicated there had been no change in Curtis's status between the August 2008 FCE and May 2009 PCE, the functional limitations Dr. Cole identified in May 2009 were inconsistent with the limitations identified in August 2008. (Def.'s PFF ¶ 24, R. 755.) Hartford provided Dr. Cole a copy of the 2008 FCE and asked him, " Do you fully agree with the restrictions outlined in the Function and Capacity Evaluation?" ( Id. ) Dr. Cole marked an " X" next to the prompt, " Yes." ( Id. )

28. On July 13, 2009, Dr. Cole found a positive Tinel sign and decreased sensation over Curtis's forearm from her wrist to her surgical incision. (Pl.'s PFF ¶ 50, R. 394.) He referred Curtis to Dr. April Fetzer for an electromyogram/nerve conduction velocity (EMG/NCV) of the upper extremities focusing on her ulnar nerve. (R. 394.) Dr. Fetzer performed the EMG/NCV on July 21, 2009 and found mild right sensory ulnar neuropathy with characteristics of demyelination. (Pl.'s PFF ¶ 52, R. 399.)

29. On August 25, 2009, Dr. Cole or his physician assistant, Kyle R. Pilz, M.S., PAC, provided a letter to Hartford that states in relevant part:

Cindy Curtis is an extremely pleasant 49-year-old patient of mine who has undergone several soft tissue operations for soft tissue inflammatory conditions in the right and left upper extremities. She also suffers from fibromyalgia and is under the care of a separate rheumatologist for this. Her condition is one of moderately debilitation (sic) in nature that is affected by all repetitive use activities.
For these reasons, I have continued to support her petitions for long-term disability and feel that it is in her best interest medically to not be working, specifically anything of clerical (sic) or sedentary in nature because of the repetitive nature of the job and upper extremity use and that this aggravates her condition.

(Pl.'s PFF ¶ 55, R. 388.)[4]

2. Scott Sporer, M.D.

30. On January 9, 2008, Dr. Scott Sporer examined Curtis at Dr. Cole's request due to Curtis's complaints of left knee pain. (Pl.'s PFF ¶ 21, R. 348.) He noted Curtis's " decreased cadence with a slight antalgic gait on the left side," pain to palpation along the lateral joint line, and a slight tenderness to palpation along the medial joint line. ( Id. ) X-rays of Curtis's left knee demonstrated severe lateral compartment degenerative arthritis with mild medial compartment degenerative change. ( Id. ) Dr. Sporer concluded that Curtis was a good candidate for left knee replacement. (Pl.'s PFF ¶ 24, R. 348.)

31. Dr. Sporer performed the knee replacement surgery on March 3, 2008. (Pl.'s PFF ¶ 24, R. 403-05). The surgical pathology report confirmed a diagnosis of left knee degenerative joint disease. (Pl.'s PFF ¶ 24, R. 680.)

Page 1205

32. Curtis returned to Dr. Sporer's office for an annual follow-up on February 25, 2009. (R. 361.) She stated that, overall, she had been doing well, but complained of some discomfort just distal to her joint line. ( Id. ) Dr. Sporer injected 3 cc of lidocaine and 40 mg of Depo-Medrol into the area and indicated that Curtis should return in one year for a repeat evaluation, or sooner if needed. (Pl.'s PFF ¶ 40, R. 361.)

3. Accelerated Rehabilitation Center

33. On August 4, 2008, Curtis participated in an FCE at Accelerated Rehabilitation Center per the recommendation of her physician, Dr. Gary Golden. (Pl.'s PFF ¶ 30, R. 629-33.) The physical therapist conducting the exam concluded that Curtis demonstrated " the physical capabilities and tolerances to function at the Light-Medium category of work (as defined by the U.S. Department of Labor)," and that she was " employable at this time." (Def.'s PFF ¶ 15, R. 629.)

34. In reaching her conclusions, the physical therapist considered Curtis's complaints of slight tenderness on palpation over L5-S1 on the left side, minimal soft tissue mobility restriction from the left side between the T4 and T9 areas, diminished left knee tendon reflex following knee replacement surgery, and reduced lumbar range of motion. (Pl.'s PFF ¶ 30, R. 630.)

35. The physical therapist observed that Curtis sustained sitting for 55 minutes in five intervals without difficulty, displayed dynamic standing tolerances for 145 minutes in four intervals without difficulty, and performed a sustained walking circuit on a treadmill at a speed of 1.6 miles per hour for 25 continuous minutes with minimal hand support. (R. 631.) Curtis did not objectively demonstrate difficulty with overhead, horizontal, and below-waist reaching and she exhibited excellent manipulation and handling of medium dexterity tasks. (Def.'s PFF ¶ 16, R. 632.) She demonstrated no difficulty with standing and stooping. ( Id. )

4. Donald E. Roland, M.D.

36. Curtis began seeing Dr. Donald E. Roland, a pain management specialist, on January 5, 2009, complaining of fibromyalgia, myofascial pain, and chronic fatigue. (R. 791.)

37. Dr. Roland reviewed MRIs of Curtis's lumbar, thoracic, and cervical spine on January 9, 2009. (Pl.'s PFF ¶ ¶ 34, 37; Plaintiff's Exhibit E [89] (" Roland" ) 4-7.) The lumbar spine MRI showed cartilage protrusions in the upper lumbar and lower thoracic spine, a probable Tarlov cyst in the lower spinal canal, mild degenerative changes of the sacroiliac joints, and mild diffuse disc bulges scattered throughout the lumbar spine with no significant stenosis. (Pl.'s PFF ¶ 34, Roland 4.) The thoracic spine MRI showed bone spurs at T6-T7 and a diffuse disc bulge at T9-T10 causing mild spinal canal stenosis. (Pl.'s PFF ¶ 34, Roland 5.) The cervical spine MRI showed broad-based disc bulges causing mild spinal stenosis at C4-6, mild narrowing of nerve passageways, and ligamentum flavum thickening. (Pl.'s PFF ¶ 34, Roland 6.)

38. Based on the MRI results, Dr. Roland administered three epidural steroid injections between January 26, 2009 and March 23, 2009. (Pl.'s PFF ¶ ¶ 37-39, 41; R. 781-84, 787.)

39. Dr. Roland also referred Curtis to Dr. Hazel Deutsch for further evaluation. Curtis met Dr. Deutsch on April 3, 2009. (Pl.'s PFF ΒΆ 42, R. 501-02.) Dr. Deutsch reviewed Curtis's cervical, thoracic, and lumbar spine MRIs and ...


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