Pfluger v. U.S. Group Long-Term Disability Ins. Plan, 2007 U.S.Dist.LEXIS 3161 (E.D.Wisc. 1/16/2007)(Issue: Chronic Fatigue Syndrome, Surveillance, Functional Capacity Evaluations).  In denying the insurer’s motion for summary judgment, the court asked a number of important questions and made numerous valuable observations in evaluating de novo the insurer’s termination of the plaintiff’s disability benefit payments.  The plaintiff, who had worked as a tax manager for Arthur Andersen & Co., developed chronic fatigue syndrome and had to cease working in 1996.  Aetna underwrote the disability coverage and approved Pfluger’s claim.  Aetna also hired a representative to assist the plaintiff in making what was eventually a successful application for social security disability benefits. 

Although Aetna benefited from the Social Security approval by receiving reimbursement of overpaid benefits and a reduction of its payment obligation, it placed Pfluger under surveillance and ultimately required her to attend a functional capacity evaluation and an examination by a physician hired by Aetna.  Although none of the evaluations were conclusive, Aetna cut off Pluger’s benefits in 2001.  A pre-suit appeal was unsuccessful, and Pfluger filed suit in 2003.  Aetna moved for summary judgment, but the court found genuine issues of material fact precluded the entry of summary judgment.   

With respect to surveillance, the court concluded:

Pfluger's ability to bend at the waist or to pull an empty garbage can the length of her driveway are not inconsistent with Pfluger's original physical limitations of needing to take frequent and prolonged breaks during the day due to prolonged fatigue after minimal effort, difficulty sleeping, muscle aches and pains, fever, sore throat, and generalized muscle weakness as well as her incapacity due to migraine headaches. See Carradine v. Barnhart, 360 F.3d 751, 755-56 (7th Cir. 2004)(noting "the difference between a person's being able to engage in sporadic physical activities and her being able to work eight hours a day five consecutive days of the week"). Pfluger's main physical limitations were her fatigue and corresponding need to take breaks, limitations that interfered with an occupation that requires high mental alertness, high stress/pressure, and irregular work hours. Pfluger's occupation is admittedly not physically demanding and her ability to bend at the waist or to pull an empty garbage can for a moment was never the issue. Pfluger did not claim disability based upon a complete inability to push, pull, or lift; rather, she claimed disability based upon the frequency and length of the fatigue that she experienced as well as corresponding cognitive and physical impairments. In this case, the surveillance reports recorded a snapshot of unremarkable physical activity; they did not capture information that belies Pfluger's reported fatigue or impairments. See Carradine, 360 F.3d at 755-56 ("Carradine does not claim to be in wracking pain every minute of the day. When she feels better for a little while, she can drive, shop, do housework. It does not follow that she can maintain concentration and effort over the full course of the work week."). *44-*45.

Nor was the court convinced that Pfluger’s ability to become pregnant and have a child inconsistent with her disability.  As to the other evidence, the court found Aetna’s medical reports were “fraught with qualifications, inconsistencies and even information favorable to Pfluger.”  *46.  The FCE was also unreliable, since, as the court noted:

What is puzzling about the FCE are the references to "objective information." In another portion of the FCE, Crist writes that "no objective pain behaviors were observed," but Crist does not define "objective pain behaviors." If "objective pain behaviors" include "grimacing" and "groaning" as Dickison assumes, the behaviors are neither objective nor a foolproof indicator of pain: one can grimace and groan while experiencing no pain and one can experience pain without grimacing and groaning. Should the court disbelieve Pfluger's reports of pain because she did not wail during the FCE? Crist's comment that "no objective pain behaviors were observed" has limited value because it is vague, and it is inconsistent with Crist's notation that Pfluger's reports of fatigue and pain fully correlate with "objective information." Despite this, Brown, Porter, Hollworth, Dickison, and Aetna's briefs filed in this court seize upon one of Crist's references to "objective evidence," affording it great significance without explaining its meaning, while ignoring entirely the other reference to "objective" evidence in the FCE that is favorable to Pfluger. *49-*50

Thus, the court denied summary judgment and ordered a trial to be held.