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Co-Morbid Impairments (Combination of Two or More disabling Conditions)

A recent ruling won by DeBofsky, Sherman & Casciari, Curtis v. Hartford Life & Acc.Ins.Co., 2014 WL 485233 (N.D.Ill. August 20, 2014) illustrates the importance of considering the combined impact of more than one medical condition in determining disability.  Cindy Curtis, a former operating room nurse at Lurie Children's Memorial Hospital in Chicago, became disabled in 2007 due to musculoskeletal impairments of the back, knees and shoulders suffered in car accidents, along with fibromyalgia and myofascial pain throughout her body.  She filed a claim for long-term disability insurance with Hartford, which provided group disability coverage through her employer.  Hartford approved the claim and paid benefits under the own occupation definition of disability that covered the first 24 months of payments. However, two years later Hartford discontinued Curtis's benefits, finding that she did not meet the "any occupation" definition of disability that became effective on that date. 

In the key portion of the ruling, the court emphasized that "even if none of her impairments in isolation necessarily compel a finding in [Curtis's] favor," the co-morbidity of her impairments had to be considered in combination in assessing disability. 

The court also determined that "whether or not one particular doctor explicitly stated Curtis was 'disabled from any occupation' is not dispositive."  And even if such an opinion had been submitted, because the court's job is to determine whether the plaintiff met her burden of proof, the court explained that it would still have been "obligated to determine whether the evidence in the record supported that opinion and not simply to accept it on its face."

Assessing the evidence, the court pointed out that none of Hartford's consultants considered "the combined effect of Curtis's physical and cognitive impairments as of the determination date." On the contrary, one of the consulting doctors, Steven Lobel, M.D., explicitly remarked that he was not considering pain assessing functional capacity despite consistent evidence throughout the record that Curtis had reported debilitating pain that affected her ability to sleep, concentrate or perform daily activities.  She received prescriptions for narcotic analgesics and underwent multiple surgeries, including at least three implantations of spinal cord stimulators despite the failure of the initial stimulator and medical complications from the implantation.  Although some of the treatment occurred after August 6, 2009, the court found that treatment constituted "a continuation of consistent treatment that Curtis was undergoing before and at her determinative date designed to address her disabling pain."  The court rejected Dr. Lobel's findings because his conclusions differed so markedly from the doctors who had examined and treated Curtis and because he "outright rejected fibromyalgia as a disabling condition" and "parse[d] out" her pain complaints in determining functional capacity.

The court was also persuaded by the psychological test findings showing cognitive impairments.  Although Hartford tried to argue the findings were indicative of a mental illness subject to the policy's limitations for psychiatric conditions, the court disagreed and determined that Hartford could not meet its burden of proof on that issue.

Turning to the vocational aspects of the claim, the court held that the evidence failed to establish that there were any occupations Curtis could perform that met the earnings threshold under the policy.  Indeed, the court found Hartford's employability assessment reports invalid.   The first EAR was based on outdated evidence, a 2008 functional capacity evaluation that was superseded by a later functional assessment completed by the treating doctor.  Nor did the EAR consider Curtis's cognitive impairments, a point that Hartford itself acknowledged.  Once the cognitive impairments were taken into consideration, the jobs identified in the first EAR were eliminated.  A third EAR was based solely on Dr. Lobel's findings, which the court deemed unreliable.  And the second EAR commissioned by Hartford did not identify any jobs that Curtis could perform without additional training.  Since the policy defines any occupation as "an occupation for which you are qualified by education, training, or experience" rather than "an occupation for which a person could become qualified by education, training, or experience," the definition used in the policy at issue in O'Reilly v. Hartford Life & Accident Ins. Co., 272 F.3d 955 (7th Cir. 2001), Hartford was stuck with its own wording.  The court also observed that "Curtis's nursing career did not provide her with the education, training, or experience necessary to be a Deputy Sheriff or Building Guard," two of the occupations identified in the EAR.  Hence, the court found, "Hartford's inability to identify any job Curtis would be able to perform in light of her physical and cognitive impairments is compelling evidence that no such jobs exist. If such jobs existed, Hartford had every incentive, and three chances, to identify them."

The court was also unpersuaded that Curtis's Social Security disability onset date, which came later than when she needed to be disabled under the Hartford policy, barred her claim.  First the court found that an amended allegation of an onset date in 2010 did not estop Curtis from claiming otherwise to Hartford because of the differing standards.  The court also found little significance in the Social Security recognition of "mental impairments," since such impairments were cognitive findings that were not the types of mental illnesses that are limited under the plan.

Accordingly, the court ordered Hartford to reinstate benefits along with prejudgment interest compounded monthly at 3.25% (the prime rate), along with attorneys' fees.

Discussion:    This ruling covers a lot of ground, but the two key aspects of the decision were the emphasis on the combination of impairments and the explanation of the plaintiff's burden of proof.  The court demolished the insurer's consultant, Dr. Lobel, and explained the inadequacies of Hartford's EAR, emphasizing the importance of the policy language.

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