Opinion
Cause Nos. IP01-0322-C-T/G, IP 01-0322-C-T/K
May 21, 2002
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND/OR MOTION FOR JUDGMENT ON THE MERITS
This entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This case comes to the court for review of a denial of a total disability benefits claim. Plaintiff Martha K. Stryker brought suit under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., ("ERISA") against Defendant Continental Casualty Company, the insurer and claims administrator of her employer's disability insurance plan. Ms. Stryker filed a claim for total disability benefits on February 23, 1999.
She alleged that she suffered from right lateral epicondylitis, which made her unable to use a keyboard for typing. Continental Casualty denied Ms. Stryker's total disability claim on May 7, 1999. Ms. Stryker seeks review of that decision by this court. For the following reasons, the court DENIES Continental Casualty's motion for summary judgment and/or motion for judgment on the merits.
A. Motions for Summary Judgment The court's review of a denial of benefits under an ERISA plan is de novo unless the benefit plan gives the administrator discretion to determine eligibility for benefits or to interpret plan terms. Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989);
Herzberger v. Standard Ins. Co., 205 F.3d 327, 330 (7th Cir. 2000). Continental Casualty concedes that the plan at issue does not give it discretion to administer the plan, therefore the de novo standard of review applies. (Def.'s Br. at 13-14.) In the Seventh Circuit, de novo review applies to both factual and legal determinations. Ramsey v. Hercules Inc., 77 F.3d 199, 204-05 (7th Cir. 1996); Casey v. Uddeholm Corp., 32 F.3d 1094, 1098-99 n. 4 (7th Cir. 1994). Accord Rowan v. Unum Life Ins. Co. of America, 119 F.3d 433, 435 (6th Cir. 1997).
When the de novo standard applies, the court has discretion to decide whether to consider evidence not presented to the plan administrator, but should exercise this discretion to consider new evidence only when necessary for adequate review. Casey, 32 F.3d at 1098-99 n. 4. See Perlman v. Swiss Bank Corp. Comprehensive Disability Protection Plan, 195 F.3d 975, 982 (7th Cir. 1999) ("We have allowed parties to take discovery and present new evidence in ERISA cases subject to de novo judicial decisions."); accord Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 943-44 (9th Cir. 1995); Welsh v. Burlington Northern, Inc., Employee Benefits Plan, 54 F.3d 1331, 1340 (8th Cir. 1995); Quesinberry v. Life Ins. Co. of N. Amer., 987 F.2d 1017, 1021-27 (4th Cir. 1993); Saliamonas v. CNA, Inc., 127 F. Supp.2d 997, 1000 (N.D.Ill. 2001); Reagan v. First Unum Life Ins. Co., 39 F. Supp.2d 1121, 1126 (C.D.Ill. 1999). Summary judgment is appropriate when there are no genuine issues of material fact, leaving the moving party entitled to judgment as a matter of law. FED. R. CIV. P. 56(C).
A factual issue is material only if resolving the factual issue might change the suit's outcome under the governing law. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992).
An issue is genuine if there is sufficient evidence for the trier of fact to find in favor of the non-moving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Baucher v. Eastern Ind. Prod. Credit Ass'n, 906 F.2d 332, 334 (7th Cir. 1990). "If there is any doubt as to whether such an issue of fact exists, the summary judgment motion must fail." Casey, 32 F.3d at 1096.
No evidence outside of the administrative record has been presented for this summary judgment motion, but evidence outside of the administrative record may be necessary for adequate review of the denial at trial.
Continental Casualty moves this court to deem admitted the facts set forth in its statement of material facts under the Southern District of Indiana Local Rule 56.1(g). Continental Casualty argues that Ms. Stryker has failed to respond to the statement of material facts in accordance with the rule. In fact, Ms. Stryker essentially admitted all of the facts asserted by Continental Casualty. Her responsive materials only add a few additional facts and some slight variations on the facts documented by Continental Casualty. While Ms. Stryker's efforts to comply with Local Rule 56.1 were not a model of technical conformance, the court was not confused or misled by the response. In the interest of justice and according to local rule 56.1(k) the court excuses her failure to comply strictly with the rule in this case. The motion to deem admitted is DENIED.
In July 1998, Ms. Stryker was employed by RCI as a vacation counselor. Pursuant to her employment with RCI, she was an eligible beneficiary in its employee welfare benefit plan. Through the plan, employees of RCI were eligible to receive long-term disability benefits through Policy No. SR-83089638 purchased from and administered by Continental Casualty.
Under the policy, Continental Casualty will make monthly payments to RCI employees that are totally disabled under certain circumstances. The policy provides: "We will pay the Monthly Benefit for each month of Total Disability which continues after the Elimination Period. The Monthly Benefit will not be payable during the Elimination Period nor beyond the Maximum Period Payable." (R. at 17.) The policy defines "Total Disability" to mean that the insured employee, during the elimination period, because of injury or sickness is:
(1) continuously unable to perform each of the substantial and material duties of the Insured Employee's regular occupation;
(2) under the regular care of a licensed physician other than the Insured Employee; and (3) not gainfully employed in any occupation for which the Insured Employee is or becomes qualified by education, training or experience.
(Id.) The policy defines the elimination period as "the number of days at the beginning of a continuous period or Disability for which no benefits are payable." (R. at 16.) The elimination period is 180 days. (R. at 6.) The policy further provides: "Written proof of loss must be furnished to [Continental Casualty] within 90 days after the end of a period for which [Continental Casualty is] liable." (R. at 20.)
The last day that Ms. Stryker worked at RCI was July 20, 1998. On February 23, 1999, she submitted her claim for long-term disability to Continental Casualty. (R. at 135.)
She claimed that she was "unable to use [the] keyboard." (Id.) Ms. Stryker submitted a physician's statement with her claim form. (R. 133-34.) Robert M. Baltera, M.D., diagnosed Ms. Stryker with right lateral epicondylitis. Dr. Baltera opined that Ms. Stryker was unable to work at that time and would be seen again on March 1, 1999. (R. at 134.)
On March 3, 1999, Continental Casualty conducted an initial review into Ms.
Stryker's medical condition. Continental Casualty noted:
Epicondylitis is also know as tennis elbow and is usually caused by over use of the limb. The pain occurs from tears in the tendon. Usually tasks such as shaking hands, opening jars, grasping and gripping are impaired. Treatment is [to] avoid activity for 2 weeks, splint, and take anti-inflammatory medication, [i]njecting the area may by required and surgical intervention may be needed to relieve pain. Her age may delay healing but 6 months is a long time for tennis elbow to heal. Would need to find out when surgery was performed since no date was submitted and what the treatment plan was. Unable to make a liability decision at this time due to lack of information of why this condition has persist for 6 months compared to ODG [Occupation Disability Guidelines] max[imum] of 42 days.
(R. at 41.)
Suzanne Montgomery, M.D., is one of Ms. Stryker's treating physicians. The medical records, included in the administrative record, indicated that Dr. Montgomery examined Ms. Stryker on July 20, 1998 and diagnosed right elbow tendinitis. Dr. Montgomery referred Ms. Stryker to Dr. Baltera for further evaluation. Ms. Stryker saw Dr. Montgomery again October 9, 1998, November 4, 1998, and November 11, 1998. These visits were for unrelated problems, but Ms. Stryker made no complaints of arm pain at the time of these examinations. However, on the November 11, 1998 visit, Dr. Montgomery noted that Ms. Stryker had surgery for epicondylitis, that there was still swelling around the lateral epicondyle, and that she wore a splint.
On December 15, 1998, Dr. Montgomery again saw Ms. Stryker. At this time, Ms. Stryker had a "cough and nasal congestion," and Dr. Montgomery diagnosed her with sinusitis. Dr. Montgomery also noted that Ms. Stryker has had an "upset stomach and [was] breaking out in hives." (R. at 108.) Dr. Montgomery further noted that Ms. Stryker's father and cousin died earlier in December, and that she has been taking care of her sister and her mother. (Id.) There were no complaints of arm pain noted at that time. On December 22, 1998, Dr. Montgomery saw Ms. Stryker after she fell in her kitchen and "injured her right knee, right foot, right wrist and heard a pop in her left knee." (R. at 109.)
Dr. Montgomery found some mild swelling at the base of Ms Stryker's right thumb and bruising on her right foot. Her left knee had no swelling and still had a full range of motion.
Dr. Montgomery also stated that Ms. Stryker is having increased stress due to the recent death of her father. (Id.)
Ms. Stryker followed up with Dr. Montgomery on January 18, 1999. Dr. Montgomery noted that Ms. Stryker had a cast on her right foot for a fracture. (R. at 111.) Dr. Montgomery also stated that Ms. Stryker "has been very depressed recently over the loss of her father and the ongoing health problems of her mother." (Id.) There were no complaints of arm pain noted at that time.
Ms. Stryker also saw Dr. Montgomery on January 27, 1999 and February 22, 1999 for unrelated problems. No complaints of arm pain were noted on either of these visits.
On March 10, 1999, Dr. Montgomery filled out a physical ability assessment for CIGNA regarding Ms. Stryker's claim for waiver of premium with that company. (R. at 127-31.)
Dr. Montgomery wrote that Ms. Stryker could not return to work because she could not lift or stand for long periods of time. (R. at 127.) Dr. Montgomery stated that Ms. Stryker could: (1) sit up to eight hours per day; (2) stand for one hour; (3) walk for one hour; (4) lift and carry up to 10 pounds occasionally; (5) grasp occasionally with her right hand and frequently with her left; (6) and could use a keyboard occasionally with her right hand and frequently with her left hand. (R. at 129-30.)
Dr. Baltera is another one of Ms. Stryker's treating physicians. The medical records, included in the administrative record, revealed that Dr. Baltera first examined Ms.
Stryker on July 22, 1998. Dr. Baltera noted:
Her physical examination is completely consistent with lateral epicondylitis. She has full elbow range of motion and no evidence of instability. She has no significant swelling or ecchymosis. She is maximally tender directly over the common extensor origin and lateral epicondyle. She has a markedly positive wrist extension test. Her grip strength on the right is 28 pounds compared to 44 on the left. Her pinch strength on the right [is] 8 pounds compared to the 14 on the left.
(R. at 89.) Dr. Baltera placed her arm in a splint.
On September 8, 1998, Dr. Baltera noted that Ms. Stryker had failed to respond to treatments and scheduled her for a right lateral epicondylectomy surgery. (R. at 88.) The procedure was performed by Dr. Baltera on October 7, 1998. He examined Ms. Stryker again on November 12, 1998. In a letter to Dr. Montgomery, Dr. Baltera explained that Ms. Stryker was approximately five weeks status post right epicondylectomy and should continue with her therapy for her right elbow. (R. at 87.)
Dr. Baltera saw Ms. Stryker again on February 1, 1999. At this time, Dr. Baltera stated, "she is still tender to palpation about the lateral epicondyle and has minimally positive wrist extension test on the right." (R. at 86.) Also, Dr. Baltera stated that the deaths in the family have "affected her ability to cope with her current chronic pain" and "with her emotional status I am unsure of her ability to make significant gains in pain relief."
(Id.) He also stated that Ms. Stryker "remains disabled from work." (Id.) Dr. Baltera also noted that Ms. Stryker had "fallen twice since her surgery sustaining a foot fracture and straining an arm." (Id.)
Dr. Baltera saw Ms. Stryker again on March 1, 1999. Dr. Baltera noted that Ms. Stryker stated that her elbow was better than it was before the surgery. (R. at 85.)
However, Ms. Stryker stated that she had pain in her left elbow and that the pain in her left elbow was worse than the pain in the right. Dr. Baltera explained that Ms. Stryker must decide whether to proceed with surgery on her left side, and noted that she still was disabled. (Id.)
After seeing Ms. Stryker again, Dr. Baltera wrote:
Martha was seen back in the office today on April 12. Her nerve studies were normal on the left side. She had very borderline cubital tunnel syndrome on the right. There is no evidence of carpal tunnel syndrome on either side. Based on this, I would recommend only proceeding with left lateral epicondylectomy and common extensor origin debridement. She understands the risk of the surgery are the same as they were prior to her last surgery. She also understands it will not do anything for numbness in the middle through small fingers. We will get this scheduled on an outpatient basis in the near future.
(R. at 83.)
On April 6, 1999, Doris Gloss of Continental Casualty spoke with Ms. Stryker.
Gloss summarized their conversation as follows:
[I] [i]nformed [her that we] need the results of the testings and the tests that were done by Dr. Lamberson. The claimant stated that there was no testing done the M.D. touched a few areas on her body and said you have fibromyalgia and there is no cure or treatment for it. [I] [i]nformed the claimant that [the information just provided] would not support the diagnosis.
[I] asked claimant if she has been in contact with her employer[.] [S]he stated that she has [been in contact with her employer] and [that] they don't care about her, she stated that the work atmosphere has changed and they [Ms. Stryker's employer] are getting rid of anyone who has a decent salary and hiring off the street. [Ms. Stryker] [s]tated that they have taken away bonus and evaluation programs and has heard it is horrible to work there.
[I] [a]sked [her] about going back the[re] and what kind of salary she made; she stated she made a decent salary and didn't care about going back as long as she worked. She said she is in so much pain right now and the MD's don't understand why. She stated that she has to beg them to treat her.
(R. at 36.)
On April 13, 1999, Continental Casualty received medical records from Dr. K. Shaw Lamberson of The Indiana Arthritis Center. Dr. Lamberson first examined Ms. Stryker on March 3, 1999. Dr. Lamberson's assessment was "1. Mild osteoarthritis of the hands. 2.
Fibromyalgia with chronic pain syndrome. 3. History of depression." (R. at 82.)
Dr. Lamberson examined Ms. Stryker again on March 24, 1999. Dr. Lamberson noted that he thought Ms. Stryker was "experiencing severe depression accounting for a lot of her pain." (R. at 78-79.) Dr. Lamberson referred Ms. Stryker back to Dr. Montgomery "for further evaluation of her anti-depressant medication. It may even be that she needs psychiatric intervention as she strikes me as being extremely depressed today in the office." (R. at 79.)
On April 20, 1999, Mrs. Gloss consulted the Occupation Disability Guidelines (ODG) regarding the surgical procedure performed on Ms. Stryker on October 7, 1998.
(R. at 34.) The ODG stated that the normal recovery period for the procedure was 21 days. Continental Casualty wrote to Ms. Stryker on April 23, 1999, notifying her as follows:
[T]here is a gap in the information we have received that is hindering our ability to make our final decision. In Dr. Baltera's office notes from your 11/11/98 office visit, he notes that you will continue to receive therapy for your right elbow and that he will see you again on your next regularly scheduled appointment. However, the next note we have from Dr. Baltera is dated 02/01/99, and we have no physical therapy records.
Therefore, in order to give your claim every consideration, we are making one final attempt to obtain any records from Dr. Baltera between 11/11/98 and 02/01/99 and also your physical therapy records beginning 11/11/98. If we do not receive these records by 05/07/99, we will make our final determination based on the information currently contained in our claim file.
(R. at 76.) On April 30, 1999, Ms. Stryker called Continental Casualty and informed them that there were no visits to Dr. Baltera between November 11, 1998 and February 1, 1999, because she was taking care of her father at that time. (R. at 30.)
On May 7, 1999, Continental Casualty wrote to Ms. Stryker denying her claim for benefits under the plan. Continental Casualty described Ms. Stryker's medical records and wrote:
According to the information in our file, you last worked on 07/20/98 and we have established your date of loss as 07/21/98. In order for the elimination period to have been satisfied, your disability would have to have been continuous through 01/17/99.
We concede you were disabled through your post-operative recovery period from your right lateral epicondylectomy, performed 10/07/98. The normal recovery period for this type of procedure is 21 days. There were no reports of any treatment from 11/12/98 through 01/31/99. You were not seen by Dr. Lamberson until 03/03/99, therefore his records were not relevant.
Pain was considered, but your continued self-reported complaints of pain are disproportionate to the medical facts and clinical findings. Subjective complaints alone are not considered evidence of a disabling impairment. Verification that a medical condition exists does not confirm an individual's inability to perform the duties of their occupation, nor does it prove any disabling impairment.
There is no indication that your condition was so severe as to preclude you from performing the substantial and material duties of your occupation as of 11/11/98. Therefore, the elimination period would not have been met and we are unable to honor your claim for benefits.
(R. at 69.)
On June 11, 1999, Ms. Stryker appealed the decision to deny benefits. (R. at 57-58.) On June 25, 1999, Continental Casualty received a faxed letter from Timothy E.
Dicke, M.D., which stated:
Please use this letter as an addendum to the one dated June 21, 1999 regarding the above named patient. This patient has right upper extremity symptoms of pain with gripping, intermittent numbness in hands and fingers and do[ing] repetitive keying type work. It is my feeling that she would not be able to use her right hand for this type of work at this time.
The June 21, 1999, letter referenced in the June 25, 1999, letter could not be found in the administrative record before this court.
On October 8, 1999, the Appeals Committee wrote to Ms. Stryker's attorney upholding the decision to deny benefits. On February 7, 2001, Ms. Stryker filed this action in state court against Continental Casualty. Continental Casualty removed the case to this court pursuant to ERISA preemption of Ms. Stryker's claims.
C. DISCUSSION
After examining the record, it is clear that a genuine issue of material fact remains to be decided. Continental Casualty denied benefits because it concluded that Ms. Stryker did not satisfy the 180 day elimination period. Ms. Stryker's date of loss is July 21, 1998, and she would have to be continuously disabled through January 17, 1999, in order to recover total disability benefits. Continental Casualty conceded that Ms. Stryker was disabled through her post-operative recovery period from her right lateral epicondylectomy (SMF 42), but found that "[t]here is no indication that [Ms. Stryker's] condition was so severe as to preclude [her] from performing the substantial and material duties of [her] occupation as of 11/11/98." (R. at 69.) However, since this court reviews the factual findings of the administrator under the de novo standard, whether the disability continued for the entire elimination period presents a genuine issue of material fact for trial.
Dr. Baltera was Ms. Stryker's treating physician for her right elbow pain. Dr. Baltera's records provide sufficient evidence upon which a reasonable trier of fact could find that Ms. Stryker was still disabled after January 17, 1999.
On the November 12, 1998, visit Dr. Baltera instructed Ms. Stryker to continue with her therapy on her right elbow. The next visit was February 1, 1999, where Dr. Baltera noted tender palpation about the lateral epicondyle and positive wrist extension on the right. Furthermore, he noted that "she claims her right elbow is no better than it was before her surgery." (R. at 86.) Dr. Baltera stated, "[a]t this time, [Ms. Stryker] remains disabled from work." (Id.)
Ms. Stryker filed for disability on February 23, 1999. She attached a physician's statement made by Dr. Baltera and signed February 10, 1999. Dr. Baltera stated that Ms. Stryker suffers from right lateral epicondylitis and that phonophoresis treatments were to continue on the lateral aspect of her right and left elbows. (R. at 133-34.) In addition, Dr. Baltera stated that Ms. Stryker was still unable to work. (R. at 134.)
Dr. Baltera also examined Ms. Stryker on March 1, 1999. Dr. Baltera noted that Ms. Stryker is still tender to palpation about the lateral epicondyle and had mild wrist extension on the right. (R. at 85.) Dr. Baltera reiterated that Ms. Stryker is disabled from work.
Taking all of the evidence and inferences in the light most favorable to the plaintiff, a reasonable trier of fact could find that Ms. Stryker's disability continued through January 17, 1999, even though there are no medical records from November 13, 1998, to January 31, 1999. Ms. Stryker had various ailments and a few deaths in the family during that time period, which may have kept her from seeing Dr. Baltera.
Furthermore, the assessment that Dr. Montgomery filled out on February 22, 1999, supports the conclusion that her disability continued through January 17, 1999. In that assessment Dr. Montgomery noted that Ms. Stryker could only use the keyboard with her right hand occasionally. On the assessment form, occasionally is defined as 1% to 33% of the time. The record before this court does not have information about the functions Ms.
Stryker performed as a vacation counselor. The court does not know how often Stryker had to use the keyboard and what other functions she needed to perform. However, the assessment clearly shows that Ms. Stryker was still limited in the use of her right arm.
Thus, Ms. Stryker has presented evidence upon which a reasonable trier of fact could find that Ms. Stryker's disability continued through January 17, 1999.
In the alternative, Continental Casualty argues that it was entitled to judgment on the merits under the procedures set forth in Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609 (6th Cir. 1998). See Frankenmuth Mut. Ins. Co., v. Wal-mart Associates' Health Welfare Plan, 182 F. Supp.2d 612, 615-16 (E.D.Mich. 2002) (discussing the procedures set forth in Wilkins). The Sixth Circuit in Wilkins set forth "Suggested Guidelines" to adjudicate ERISA actions. Wilkins, 150 F.3d at 619 (Judge Gilman concurring). The Sixth Circuit stated that the Rule 56 Summary Judgment procedure is "inapposite to the adjudication of an ERISA action" because of the Circuit's "precedents [which] preclude an ERISA action from being heard by the district court as a regular bench trial." Id. The Sixth Circuit continued, "[I]t makes little sense to deal with such an action by engaging a procedure designed solely to determine `whether there is a genuine issue for trial." Id. Under Wilkins the district court "should conduct a de novo review based solely upon the administrative record, and render findings of fact and conclusions of law accordingly." Id.
However, the procedure set forth in Wilkins has never been adopted in the Seventh Circuit. In Reagan v. First Unum Life Ins. Co., 39 F. Supp.2d 1121, 1128 n. 9 (C.D.Ill. 1999), the court stated:
UNUM asks the Court to adopt the Sixth Circuit's position for adjudicating ERISA claims on the administrative record rather than employing the traditional mechanisms for deciding a summary judgment motion pursuant to Rule 56. Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 617-20 (6th Cir. 1998). Although the Court believes that the Sixth's Circuit's position has merit for the reasons given in Wilkins, the Court also believes that it would be presumptuous for this Court to adopt the Sixth Circuit's position until the Seventh Circuit does so, especially when there is ample case law in which the Seventh Circuit has reviewed a district court's grant of summary judgment without commenting on the impropriety of using Rule 56 to resolve a claim of wrongful termination of ERISA disability benefits. E.g Mers, 144 F.3d at 1019; Smart v. State Farm Ins. Co., 868 F.2d 929, 931 (7th Cir. 1989).
Reagan, 39 F. Supp.2d at 1128 n. 9. Without expressing the court's opinion on the procedures adopted by the Sixth Circuit, this court will not abandon the traditional procedures without guidance from the Seventh Circuit.
D. CONCLUSION
For the foregoing reasons, Continental Casualty's motion for summary judgment and alternate motion for judgment on the merits are DENIED. A separate entry will set a conference to select a date for a trial on the merits.