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The casenote of the month is from the Disability E-News Alert! a monthly newsletter describing new disability insurance developments.  For subscription information, e-mail Mark DeBofsky or visit www.disabilityenewsalert.com .

Mullaly v. Boise Cascade Corp. Long Term Disability Plan, 2005 U.S.Dist.LEXIS 387 (N.D.Ill. 1/11/2005)(Issues: Standard of Review, Pain) The plaintiff, a marketing analyst, applied for disability benefits from CNA due to severe pain resulting from a congenital kidney impairment that required implantation of a morphine pump and additional narcotic pain medications.  In addition to her own self-reports, the record contained a report from her supervisor showing marked limitations in the ability to maintain any activities on a sustained basis.  CNA denied the claim, though, based on a nurse’s review; and the denial was upheld after review of the file by a neurologist.   

The court applied a de novo standard of review, finding that there was no discretionary authority contained in the policy even though the “certificate” contained language granting discretion to determine benefit eligibility.  Following Wolff v. Continental Casualty Co., 2004 WL 2195179, 2004 U.S.Dist.LEXIS 24643 (N.D.Ill. 9/28/2004)(December 2004), the court determined that having discretionary language in the certificate, but not in the policy, does not permit a court to deviate from the default plenary standard of review.  The court explained,

based upon the inconsistency between the clear and specific limiting language in the Certificate and the language in the Policy regarding the Certificate, it cannot be said that the insured has been advised with the requisite clarity that the employer and insurer have discretion to deny claims. "An ERISA plan can stipulate for deferential review . . . but the stipulation must be clear... The employees are entitled to know what they're getting into, and so if the employer is going to reserve a broad, unchanneled discretion to deny claims, the employees should be told about this, and told clearly." Herzberger [v. Standard Insurance Company], 205 F.3d at 332-33.

Consequently, the court applied a de novo standard of review.

Turning to the merits of the case, the court pointed out that "medical science confirms that pain can be severe and disabling even in the absence of 'objective' medical findings, that is, test results that demonstrate a physical condition that normally causes pain of the severity claimed by the [plaintiff]." Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004) (Carradine). Accordingly, “while objective medical evidence must support a finding of an underlying impairment, subjective evidence can be used to demonstrate that the pain associated with that condition is disabling.” Carradine, 360 F.3d 753; see also Hawkins v. First Union Disability Plan, 326 F.3d 914, 919 (7th Cir. 2003) (Hawkins)(May 2003).  Applying those propositions, the court determined that even though CNA’s reviewing neurologist found no objective evidence of complex regional pain syndrome, he acknowledged the plaintiff’s chronic pain; and two examining doctors also concurred with the pain diagnosis and did, in fact, diagnose CRPS.  Given that evidence, the court held, “no genuine issue of material fact exists that Defendants were incorrect in determining that Plaintiff had failed to present objective medical evidence demonstrating that she suffers from a disabling impairment.”

The court also determined that CNA had no evidence to rebut plaintiff’s claim that she could not sustain work.  Performing some routine housework or driving a child to school does not equate to the ability to sustain work, according to both Hawkins and Hillock v. Continental Cas. Co., No. 02 C 5126, 2004 WL 434217, at *6 (N.D. Ill. Mar. 2, 2004) (Hillock)(2004 U.S.Dist.LEXIS 3907 (N.D.Ill. 3/1/2004)(April 2004)), a case which made the additional observation that “Plaintiff would have to do these household chores and perform her work-related duties as well if she was not disabled.” Hillock, 2004 WL 434217, at *7.

The court made two additional points.  The first involved plaintiff’s medical treatment: "What is significant is the improbability that [the plaintiff] would have undergone the pain-treatment procedures that she did, which included not only heavy doses of strong drugs such as Vicodin, Toradol, Demerol, and even Morphine, but also the surgical implantation in her spine of a catheter and a spinal-cord stimulator, merely in order to strengthen her complaints of pain and so increase her chances of obtaining disability benefits . . . ." Carradine, 360 F.3d at 755.  Second, the court pointed out that "reliance on a nurse's opinion alone is insufficient to deny benefits in the face of [a] treating physician's opinions that a claimant is disabled," (Defs.' Resp. to Pl.'s Mot. At 10); see also Billings v. Continental Cas. Co., No. 02 C 3200, 2003 WL 145420 (N.D. Ill. Jan. 21, 2003), and that the nurses' opinions were not used in the final decision by the Appeals Board and should not now be considered. (Defs.' Resp. to Pl.'s Mot. At 10).  Added to that, the court determined that the later reviewing doctor’s impressions were “unsupported and, in some instances, contrary to the facts.”

This note appeared in the Disability E-News Alert! For subscription information, please go to www.disabilityenewsalert.com .