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Warner v. Unum Life Insurance Co.

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

December 31, 2014

DEBRA L. WARNER, Plaintiff,


JOHN J. THARP, Jr., District Judge.

Plaintiff Debra Warner brought this ERISA benefits action to compel Defendant Unum to pay her long-term disability and life insurance benefits that she contends she is owed under her former employer's group plan. The parties have filed cross-motions for summary judgment. For the reasons that follow, the Court grants Warner's motion and denies Unum's motion.


The following material and undisputed facts are taken from the parties' Local Rule 56.1 Statements and Responses. Further details from the medical evidence will be introduced as needed to analyze the parties' arguments.

Plaintiff worked as a Nurse Manager for Tyson Foods, Inc. ("Tyson") until she ceased working in January 2011 based on what she describes as the cumulative impact of fibromyalgia, osteoarthritis, chronic low back pain, and other maladies. Warner sought benefits under Tyson's Long Term Disability Insurance Plan (the "Plan"), an employee benefit welfare plan that is established pursuant to a Group Long Term Disability Insurance Policy ("Group Policy") issued by Unum and governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. ยง

The Plan provides disability insurance. For the first 24 months, a claimant is "disabled" when Unum determines that she is "limited from performing the material and substantial duties of [her] regular occupation[1] due to [her] sickness or injury" and she has "a 20% or more loss in [her] indexed monthly earnings due to the same sickness or injury." Before any disability benefits are payable, the claimant must satisfy a 90-day "Elimination Period" of continuous disability. After 24 months, a claimant is "disabled" under the Plan "when Unum determines that due to the same sickness or injury, [she is] unable to perform the duties of any gainful occupation for which [she is] reasonably fitted by education, training, or experience."

As to life insurance coverage, the Plan provides: "If you become totally disabled while covered under this plan, your life insurance coverage will continue, with payment from your Employer, for as long as you remain totally disabled. Totally disabled means you are unable to perform any work for compensation or profit as a result of an injury or sickness. You must provide proof of disability acceptable to Unum."

When Warner ceased working in January 2011, she prepared a "Claimant's Statement" for Tyson. She described her claimed disability as follows: "Severe weakness, unable to sit or stand for greater than 30 minutes, started [1/17/11]. Severe fatigue, joint pain, difficulty sleeping, blurred vision, headache, unable to concentrate, dizziness, unstable when walking, memory difficulty, increased back pain, fevers." This Statement was accompanied by a partially incomplete Attending Physician Statement from Warner's family physician, Dr. Kevin Jeffries, who listed Warner's "primary diagnosis" as lupus and included a list of symptoms similar to Warner's list. Jeffries wrote that Warner's treatment was to follow up with a rheumatologist and that she should stop working effective January 19, 2011. Warner submitted a supplemental Attending Physician Statement to Unum on June 14, 2011, in which Dr. Jeffries assessed Warner's abilities as of March 2011. He indicated that she could "sit, stand, or walk" for zero hours per workday and could never "climb, twist/bend/stoop, reach above shoulder level, operate heavy machinery, perform fine finger movement, perform hand-eye coordinated movements, perform pushing/pulling, or lift/carry" any amount of weight. He listed her necessary work restrictions as "no work" and stated that her expected return-to-work dates was "? 4-6 weeks."

Warner told Unum's disability specialist on May 31, 2011, that she had been unable to get better after a viral infection in mid-January. When asked about Dr. Jeffries' lupus diagnosis, she said that "the doctors do not agree, " and that her doctors "do not know what is wrong" and "do not think it is serious." She reported that she had been referred to rheumatologist Dr. Couri and infectious disease specialist Dr. Baig. Warner stated that she could not perform any of her job duties-which entailed managing seven to eight nurses and being in charge of safety, ergonomics, and OSHA reporting for a facility of 75 workers -"because of the fatigue."

Unum sent questions and a request for a completed Estimated Functional Abilities Form to Dr. Jeffries on June 13, 2011; it was returned on July 8, 2011 by a Dr. Sureka instead. Dr. Jeffries had referred Warner to Sureka, a physiatrist, for a physical evaluation and completion of the form. The assessed restrictions and limitations were to "avoid lifting objects heavier than 10 pounds" and "avoid frequent bending, stoopping, climbing stairs." He estimated it was "fair" to believe Warner could return to full-time work in six months. Sureka assessed Warner's abilities in a number of areas, concluding that she "occasionally" had at least a limited capacity to lift weights up to 10 pounds; to bend, kneel, crawl, climb stairs, reach above shoulder-height, and push or pull 10 pounds; and could use her right, but not her left, hand and foot for certain movements.

When contacted by Unum's consulting physician, Dr. Sureka stated that the scope of his referral was limited to an opinion on her functional capacity and that he deferred to Dr. Jeffries as to any testing or treatment for Warner's symptoms. He opined that she was unable to work because of her level of pain but that she "might well" regain the ability to work within six months. Unum was not able to speak directly with Dr. Jeffries; he was on vacation and did not return before Unum completed its file review. It obtained Warner's medical records from Dr. Jeffries, Dr. Couri, Dr. Baig and another infectious disease specialist, Dr. Brobbey.

Warner traces her health problems back to the early 1990s, when she first developed a low-grade fever, joint pain, and fatigue. Lyme disease and parvovirus were ruled out, and eventually Warner was diagnosed with fibromyalgia and chronic fatigue syndrome.[2] Warner also has a history of neurological issues, including migraine, complex partial seizures, and a benign cyst in her brain. Warner traces her history of back pain to 2005, when she injured her back lifting a patient. After a surgery in January 2009, she improved, although she reinjured her back in December of that year attempting to lift a heavy suitcase. Since that time, she has taken narcotic pain medications for persistent pain. Dr. Jeffries' records reveal a long history of treatment for pain, including back pain and migraines, after the surgery. The treatment consisted primarily of various prescription drugs for symptoms including pain, insomnia, and anxiety. Warner has also done several courses of physical therapy since the surgery.

Warner's long-term disability claim, which was submitted on May 10, 2011, alleges the onset of disability in January 2011. On January 18, 2011, and January 27, 2011, Warner saw Dr. Jeffries for flu symptoms and then acute bronchitis; Warner was advised to stay off of work January 26 to 28. At that time, Warner also saw Dr. Couri, her rheumatologist, who noted she was back for the first time in "4 or 5 years" for increased pain in her back, hands, elbows, and shoulders. After his examination, Dr. Couri diagnosed fibromyalgia "with increased symptoms again, " and osteoarthritis in her spine, hands, and petellofemoral joints, and advised her stay off work for six days. Warner returned to Dr. Jeffries for further treatment for the flu symptoms, and then again on February 11, for fatigue, being "tired all the time, " being unable to sleep, and for dizziness, cough, body aches, joint pain, and total lack of energy. On February 23, 2011, Warner saw Dr. Brobbey, an infectious disease specialist, for fever; he noted her "intermittent" symptoms of cough, fatigue, and headache, as well as "night sweats and pain in joints (for 2 decades)." Dr. Brobbey noted Warner's diagnoses of fibromyalgia, chronic fatigue, and hypothyroidism, and he suggested that her symptoms might be attributable to influenza or to an aggravation of her chronic fatigue syndrome. Dr. Brobbey reviewed old lab tests and determined that Warner did not have Lyme disease, but he ordered further tests to rule out lupus; those tests were negative. He further ordered tests for inflammatory bowel syndrome and Hepatitis B, which also were negative. Dr. Brobbey also performed a musculoskeletal exam, noting Warner's joint pain but finding no deformities or abnormalities.

On March 1, 2011, Warner visited Dr. Jeffries for the purpose of filling out short-term disability paperwork; there was no physical exam on that date, although Dr. Jeffries had examined Warner at least four times in the preceding two months. On March 10, Warner saw Dr. Baig, the other infectious disease specialist, complaining of "fever, " although she did not register a fever at the time of the appointment, and for chronic pain in the small joints of her hands and wrists. No musculoskeletal evaluation was recorded. At a March 31 follow-up appointment, again no fever was recorded, although Warner continued to report still having "a low grade temp" at night.

On April 19, 2011, Warner saw Dr. Jeffries for "back/flank pain, " and he noted that Warner had passed some kidney stones. Dr. Jeffries noted that Warner continued to complain of night sweats, headaches, and joint pain. He diagnosed "questionable" infectious disease and auto immune disorder, as well as actual urinary tract infection/flank pain, chronic headaches/migraines, and depression. In his review of symptoms, he noted "questionable" fever, as well as fatigue, gastrointestinal pain, myalgia, back pain, joint stiffness, depression, anxiety and insomnia. On the same day, Warner had another appointment with Dr. Baig, who noted that Warner's fever had reportedly improved. His report notes diagnoses of "Fever, Unspecified" and "Chronic Fatigue, " and he further noted "fibromyalgia and mood disorder possible." He noted Warner's continued complaint of joint pain.

On April 28, 2011, Warner was examined by Dr. Couri, who noted her consultations with the infectious disease specialists and stated, "I told her that I had been following her for over 10 years and she has never had anything to suggest lupus." He believed her "main diagnosis" was fibromyalgia, and he noted the viral infection that "started this current flare up." He documented tenderness in Warner's neck, back, gluteus, and tochanters, and gave her injections for pain relief.

On May 20, 2011-the first medical appointment after Warner's long-term disability claim was submitted on May 10-Warner was examined by Dr. Jeffries for her complaints of, among other things, fever, neck pain, and back pain, " which had recently increased. Dr. Jeffries noted that Warner suffers from chronic fatigue/pain syndrome, irritable bowel syndrome, chronic migraines, chronic back pain, and panic attacks. Dr. Jeffries continued to administer and adjust the doses of the narcotic pain medication including OxyContin and Vicodin. Attached to the treatment record is Warner's own documentation of her symptoms, drafted in January 2011, which lists and describes 27 symptoms.

On June 20, 2011, Warner was diagnosed with acute appendicitis and had a laparoscopic appendectomy and hernia repair. The surgery was successful.

On July 8, 2011, Warner was examined by Dr. Sureka "for purposes of disability determination." Warner had been referred by Dr. Jeffries, whom Unum had contacted with a request to complete an assessment of Warner's functional capacity. Dr. Sureka noted an "impression" of degenerative arthritis in the left shoulder, both wrists, right knee, both ankles, and lumbar spine; a history of fatigue, sleep difficulty, nausea and vomiting, and fever. He opined that Warner "is not able to work as a nurse at present and she should stay off work for about six months." Dr. Sureka's record also notes Warner's complaints of upper and lower back pain radiating to her foot, left shoulder pain radiating to her left hand, and seizures. As to her functional limitations, Dr. Sureka reported that Warner was limited to only occasional lifting of up to 10 lbs. and occasional bending, kneeling, crawling, climbing stairs, reaching above the shoulders, and pushing/pulling of ten pounds. In addition, Dr. Sureka determined that Warner had limited use of her left hand and foot. He further opined that Warner was capable of sedentary activity for only two hours out of an eight-hour day, and concluded that she should be absent from work for six months due to her disability.

As part of its review of the claim, Unum had its own doctors and consultants review Warner's medical history; none examined Warner personally. A vocational consultant, Marian Pearman, analyzed Warner's regular occupation as a "Nurse Supervisor Occupational Health Nursing." In her vocational report, Pearman reported that this is a "light" strength job, which can require "Lifting, Carrying, Pushing, Pulling 20 Lbs. occasionally [up to 1/3 of the time], frequently [1/3 to 2/3 of the time] up to 10 Lbs., or negligible amount constantly [over 2/3 of the time]. ...

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