Chronic pain and disability claims
Chicago Daily Law Bulletin
February 23, 2005
by MARK D. DEBOFSKY
Our law firm recently won a summary judgment ruling in a case that is instructive to litigants having to deal with disability due to severe pain.
Lisa Mullally, a marketing analyst for Boise Cascade Corp., applied for disability benefits from Continental Casualty Co. 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 indicating marked limitations in her ability to maintain any activities on a sustained basis.
Continental, a CNA subsidiary, denied the claim, though, based on a nurse's review; and the denial was upheld after a neurologist reviewed the file. The worker then sued the disability plan and CNA. Mullally v. Boise Cascade Corporation Long Term Disability Plan, 2005 U.S. Dist. LEXIS 387 (N.D. Ill., Jan. 11).
Because this claim was governed by the Employee Retirement Income Security Act, the court first had to determine the standard of review applicable to the claim. 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., Sept. 28), 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 that based on ''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 Co.], 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). 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).
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 concurred with the pain diagnosis and did, in fact, diagnose CRPS.
Given that evidence, the court found no genuine issue of material fact ''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 the 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 Casualty Co., No. 02 C 5126, 2004 WL 434217, at *6, 2004 U.S. Dist. LEXIS 3907 (N.D. Ill., March 2, 2004), a case that made the observation that the plaintiff ''would have to do these household chores and perform her work-related duties as well if she was not disabled.''
The Mullally court made two additional points. The first involved the 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.'' See Billings v. Continental Casualty Co., No. 02 C 3200, 2003 WL 145420 (N.D. Ill., Jan. 21, 2003). The court noted that the nurse's opinions were not used in the final decision by the appeals board and should not now be considered. Added to that, the court determined that the later reviewing doctor's impressions were ''unsupported and, in some instances, contrary to the facts.''