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 .
Hillock v. Continental Casualty Co., 2004 U.S.Dist.LEXIS 3907 (N.D.Ill. 3/1/2004)(Issue: Scope of Review)Following a car accident, the plaintiff, Sandra Hillock, underwent two surgeries to repair a herniated disk in her cervical spine. However, surgical intervention was not successful, and Hillock continued to experience severe pain due to ongoing degenerative damage to the cervical spine. Consequently, Hillock, who was 56 at the time, applied for disability benefits from CNA. Despite the support of opinions from five treating physicians who certified the severity of the spinal pathology and resulting pain, and that Hillock had reached maximum medical improvement, CNA denied benefits without obtaining any contrary medical evidence. CNA maintained its conclusion following a claim appeal which included, in addition to the previously submitted evidence, a report from a doctor who worked as a consultant for plaintiff’s employer concurring with the other opinions that Hillock was incapable of working.
The court reviewed the case under a deferential standard of review. The plaintiff argued the court should follow the policy in existence at the time Hillock became disabled, which had no discretionary language. However, applying Hackett v. Xerox Corp., 315 F.3d 771 (7th Cir. 2003), the court held the controlling plan was the one in effect when the claim for benefits was submitted. That policy did contain discretionary language requiring the court to apply an arbitrary and capricious standard which the court defined to mean:
Under the arbitrary and capricious standard, a decision will be upheld unless it is "completely unreasonable." Mers v. Marriott Int'l Group Accidental Death & Dismemberment Plan, 144 F.3d 1014, 1021 (7th Cir. 1998). Although this review is deferential, it should not be a "rubber stamp" and "deference need not be abject." Hackett, 315 F.3d at 774. The decision will not be upheld, for example, "when there is an absence of reasoning in the record to support it," id. at 774-75, or when the "record contains nothing more than scraps to offset the evidence presented by [the claimant]," Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 919 (7th Cir. 2003). *12
In applying that standard, the court found CNA’s determination was arbitrary and capricious. Preliminarily, the court noted what CNA did not do: First, it failed to discuss the objective evidence submitted in support of the claim. Second, CNA neglected to discuss the findings of the five doctors who concluded Hillock was disabled. Third, CNA never hired a doctor to examine Hillock or even review her records. Rather, “it relied principally on the analysis of an in-house administrative employee who insofar as the record reveals does not have any specialized medical training.” *13.
The court further pointed out that CNA apparently accepted Hillock’s diagnosis and also did not dispute that she suffered from pain. Accordingly, the court found:
CNA's decision to completely ignore the objective medical evidence (which its own policy mandates must be submitted) and to ignore the opinion of Hillock's doctors as well as CNA's decision not to hire a doctor of its own to review this evidence raise strong doubts about the decision. See, e.g., La Barge v. Life Ins. Co. of N. Am., 2001 U.S. Dist. LEXIS 1033, 2001 WL 109527, *9 (N.D. Ill. Feb. 6, 2001) (administrator's decision lacked a "proper medical foundation" because it made no independent inquiry into claimant's condition, did not meet with claimant, and did not hire a physician to examine claimant). As CNA correctly points out in its brief, this is not a dispute between conflicting medical opinions. But even ignoring these problems, CNA's decision is still unsupportable because it is based on unproven and unrealistic assumptions about the nature of Hillock's abilities and job duties. *14-*15.
The court also rejected CNA’s rationale that Hillock’s job had a “sit/stand option” on the job by noting, “the mere fact that she spent some portion of her day sitting and some portion standing does not automatically mean that she had the power to choose when she did these things.” *16. The court added that the nature of Hillock’s occupation required her to perform tasks that “are time-dependent and cannot be put off to a time when a person is feeling better.” In addition, because half of Hillock’s day was spent working with people, the court pointed out that it made it unlikely she could work on her own time table. The court explained:
Even if Hillock had the option to sit or stand, it is not clear that this would have alleviated all her problems. CNA concluded, in effect, that Hillock's symptoms were intermittent and only occurred when she stood or sat for too long. But this point is not supported by any clear evidence. In fact, the evidence in the record strongly and consistently demonstrates that plaintiff suffered from constant pain -- a fact CNA never questioned in any of its three letter decisions. For example, Hillock stated in the phone interview with Myers that she suffered from "almost constant" headaches. (R 139.) Every doctor Hillock consulted (including Dr. Sliwa) noted that she complained of constant and severe pain, which is also evidenced by the fact that she took two different painkillers on a regular basis. That she was in pain while at home, when she certainly could sit or stand as needed, also casts doubt on CNA's assumption that her pain only arose when she was confined to a single position for long periods of time. We recognize that both Hillock and her doctors indicated that she needed to change positions throughout the day. But this does not mean that changing positions eliminated all her pain rather than simply alleviated some of it. Finally, to the extent there is any doubt on this point, Hillock explicitly stated on the job activities form that her pain occurred "throughout the work day, no matter what task is performed." (R 159; emphasis added.) CNA cited to this statement in its November 30th letter, but never expressed any doubt about it. (R 67.) *17-*18.
Nor did the court accept CNA’s rationale that the ability to perform some household activities meant she could work. In addition to Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914 (7th Cir. 2003), the court cited Pelchat v. Unum, 2003 WL 21105075 (N.D.Ohio 2003) for the proposition that the ability to perform some household tasks does not mean someone can work on a full time basis. The court also found CNA’s analysis of one of the treating doctor’s reports to be a mischaracterization of that doctor’s opinions. Thus, the court concluded “CNA's decision to deny Hillock long-term benefits under the policy is arbitrary and capricious because it is based on highly questionable assumptions and because it ignores the countervailing objective medical evidence.” *25.