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.
Discussion: Judge
Nordberg’s thorough analysis, even under an arbitrary and capricious standard of
review, exposed significant defects in CNA’s claim adjudication. What we found
particularly significant was the discussion about a sit/stand option at work –
the court analyzed the occupation from a realistic standpoint. The opinion also
illustrates the peril of denying benefits in the face of multiple doctors’
opinions when the insurer fails to conduct an independent examination or even
have a physician review the record.
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