A recent DeBofsky, Sherman & Casciari victory, Cheney v. Standard Ins.Co., 2014 WL 4259861 (N.D.Ill. August 28, 2014) illustrates the concept of being disabled while still working and thus qualifying for disability insurance benefits. The plaintiff, Carole Cheney, was a non-equity partner at the law firm of Kirkland & Ellis, LLP who specialized in appellate and commercial litigation. After struggling with neck and back pain for years and receiving workplace ergonomic accommodations that ultimately failed to enable her to keep working in the office, Cheney began working from home most days beginning in 2003. Ultimately, though, she had to stop working after December 19, 2011; and she took an approved leave of absence from her law firm beginning January 3, 2012 to pursue treatment for her back pain, ultimately undergoing major spine surgery a few months later.
Although Cheney's disability insurer, Standard Insurance Company, maintained that Cheney's coverage ended when she ceased working, the court ruled otherwise based on the policy language, which continues coverage after the cessation of active work during a leave of absence. Thus, Cheney qualified for benefits even though her date of disability did not commence until shortly before she underwent surgery.
Standard would not even consider that date, though, maintaining that Cheney's ongoing ability to perform some of her work duties disqualified her from receiving benefits. The court agreed with Cheney, though, that her inability to perform some of her material job duties entitled her to benefits even if there were other duties she could perform, basing its opinion primarily on McFarland v. General American Life Insurance Company, 149 F.3d 583 (7th Cir. 1998), although other cases from the Northern District of Illinois saying much the same thing were also relied upon. However, that still left open the question of whether Cheney met that standard.
The court acknowledged that until 2011, the plaintiff's medical history and treatment was somewhat intermittent and "not always consistent." But by early 2011, the medical records document Cheney's claimed complaints; and in early 2012, while Cheney was on a leave of absence, she began receiving more intensive treatment, culminating in surgery. Moreover, all of the treating doctors, and even defendant's consultants, agreed that Cheney was experiencing "chronic and long term" pain. And while the court found the evidence may not have been "overwhelming," the record "corroborates her pain complaints, and her attempts to use ergonomic accommodations to alleviate her pain to no avail." The court also noted that none of defendant's consultants opined about "plaintiff's non-exertional limitations and how those would affect her ability to perform the high-stress work of a litigation partner." Thus, the court determined, "We can say in relying on the non-examining doctors, Standard 'glossed over' the issue of plaintiff's need to concentrate and perform the 'mental demands of the active practice of law.'" (citing Nevitt v. Standard Ins. Co., No. 08-3641, 2009 WL 4730316, *7 (N.D. Ga. Dec. 3, 2009)(concluding that the reviewing doctors "glossed over" evidence documenting severe migraines, and finding that there were no signs of malingering or symptom exaggeration). Consequently, the court determined:
The limited conclusion that plaintiff should be able to move from a sitting to a standing position to account for her chronic pain is not reconcilable with the record evidence that she has used those accommodations for the majority of her career and has continued to suffer pain, which affects how much she can work. Therefore, it may be true that plaintiff can perform other sedentary work or even other legal work. But those of us in the profession know that a partner at a large law firm must endure "emotional stress, time pressure, long hours, and the demands of "a high level of mental acuity" regardless of the accommodations of a standing desk, or a reduced hour schedule.
The court rejected the defendant's argument that Cheney's unsuccessful campaign for public office was inconsistent with her claimed disability. The court determined that there was no evidence establishing how strenuous the run for office was or whether it required "similar long hours at a computer with the pressure to meet deadlines while maintaining consistent mental focus." And the court deemed such efforts an "attempt[ ] to find other work that might alleviate her pain." Thus, the court held that Standard failed to "consider the qualitative and quantitative aspects of plaintiff's work as a litigation partner," which it deemed "the crux of this case."
After reaching that conclusion, the court turned to the calculation of benefits due. Benefits were based on compensation that was paid during the "prior tax year." However, the record was confusing as to whether that year was 2010 or 2011. If the 2010 year is used, the plaintiff's earnings were depressed because she had taken off significant time during that year to address her pain issues. Because the determination turned on whether the plaintiff's last day of active work is used, or whether the date she ceased being a member of Kirkland is used, the court invited additional briefing.
Discussion: It is clear that Carole Cheney's stoic behavior in trying to use time off from work and conservative measures to treat her condition ended up punishing her by making her case so difficult to analyze. But the court took notice of the significant stress and work demands placed on lawyers; and the need to be able to think and concentrate free from the distraction of pain in reaching a conclusion that Carole Cheney was disabled from her occupation. The McFarland case from the Seventh Circuit and Seitz v. Metropolitan Life Insur.Co., 433 F.3d 647 (8th Cir. 2006), along with Teicher v. Regence Health and Life Ins.Co., 2008 WL 2550631, 2008 U.S. Dist. LEXIS 84844 (D.Ore. May 20, 2008), which also involved an attorney, illustrate how occupational disability cases are intended to be analyzed. The reality is that the inability to perform even a single material job duty would make it impossible to perform the occupation of attorney.