In determining long-term disability benefits, the question before CNA was whether Mrs, Vega can
perform the substantial and material duties of her regular occupation, and not whether she was capable of
doing any work at all. The opinions of Dr. Aruguete, the treating physical therapist and Dr. Kim are
uncontroverted, and none of the treating medical examiners determined that Mrs. Vega could perform her
regular occupation. Mrs. Vega’s job requires frequent lifting and transferring of light materials, with
occasional heavy lifting of objects weighing up to 70 pounds. She suffers from systemic lupus and
theumatoid arthritis. Dr. Aruguete’s determination that her arthritic condition is exacerbated by repetitive
work is uncontested, Mrs. Vega’s systemic lupus is progressively deteriorating and medical evidence
establishes that she does not have the hand coordination or strength to perform the duties of her regular
occupation,

Mrs. Vega is disabled according to the terms of CNA’s policy. She is not gainfully employed, she
is under the regular care of Dr. Aruguete, and Dr. Aruguete has determined that Mrs. Vega is continuously
unable to perform the substantial and material duties of her occupation because she suffers from
deteriorating systemic lupus and rheumatoid arthritis. There is no medical opinion contrary to the opinions
of Dr. Aruguete, the physical therapist or Dr. Kim. CNA’s decision to deny Mrs. Vega long-term
disability coverage is without factual basis on the record, and a judgment in favor of Plaintiff and against
CNA is necessary as a matter of law.'

For the foregoing reasons, Plaintiff's motion for summary judgment is GRANTED and
Defendant’s motion is DENIED.

ENTER:

Y (3 3 2. h !
cy B. Zagel $
States District adge

Date: | Na. 2a

I note my view that the result here may well have been the same even under an “abuse of
discretion” standard,



Migute Order Form (08/97)
_

~ Op United States District Court, Northern District of Iinois
¢

OFRCP4(m) ClLocal Rule 41.1 OOFRCP41(a)(1) [ FRCP41(a)(2).

(1). @ [For further detail see order attached to the original minute order.)

anor Magia dudge James B. Zagel “Thaw Asigned Sua

CASE NUMBER 01 C 6001 DATE 11/1/2002
CASE AURIZA VEGA vs. THE CHERRY CORPORATION
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

(1) Oo Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) Qa Answer brief to motion due . Reply to answer briefdue__—

(4) Qa Ruling/Hearing on setfor at

(5) im Status hearing[held/continued to] [set for/re-set for]on__—_—sset for at

(6) o Pretrial conference[held/continued to} [set for/re-set for]on____setfor___——_at_—

(7) Oo Trial[set for/re-set for] on__at

(8) oO [Bench/Jury trial] [Hearing] held/continued to__at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

ao [Other docket entry] . Motion (16-1) to strike is denied. Motion (12-2) for judgment is denied.
Motion (12-1) for summary judgment is denied. Motion (16-1) for summary judgment is granted.

No notices required, advised in open court.

No notices required. umber of notices,

Document
Number

Notices mailed by judge's staff.

Notified counsel by telephone. dane dockeied

| Docketing to mail notices.
v Mail AO 450 form...

docketing deputy initials

e
Copy to judge/magistrate judge. sf
= duce ail notice
courtroom cout ean 29
DW deputy's eqs Wid [res
initials :
Date/time received in -!
central Clerk's‘ Office railing deputy initia



UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION DOCKETED

Auriza VEGA, Nov 4 2002

Plaintiff,

v. No. 01 C 6001
Judge James B. Zagel

THE CHERRY CORPORATION
LONG TERM DISABILITY PLAN,
CONTINENTAL CASUALTY COMPANY

Defendant.

MEMORANDUM OPINION AND ORDER

Auriza Vega suffers from systemic lupus and rheumatoid arthritis. She worked for The Cherry
Corporation in a job that required her to perform a limited variety of machine and manual assembly and
soldering operations to make automotive products. Mrs. Vega’s disability insurer, Continental Casualty
Company (“CNA”), denied her long-term disability benefits. CNA determined that there was a lack of
objective medical evidence demonstrating Mrs. Vega’s condition was of the severity to render her
incapable of performing her occupation. Mrs. Vega sued for wrongful denial of benefits under ERISA, 29
U.S.C, §1132 (a)(1)(B), claiming that she is disabled from her occupation. Both parties move for
summary judgment.

Summary judgment is appropriate when there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Lexington Ins. Co. v. Rugg
& Knopp, 165 F.3d 1087, 1090 (7th Cir. 1999). When considering a motion for summary judgment, I
review the entire record, drawing all reasonable inferences in the light most favorable to the non-moving
party. Cornfield by Lewis v. School Dist. No. 230, 991 F.2d 1316, 1320 (7thCir. 1993). I will consider the
cross motions for summary judgment together.

A denial of benefits challenged under an ERISA plan is reviewed de novo unless the plan

language gives the administrator discretionary authority to determine eligibility for benefits or to construe

wD



the terms of the plan. Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 109 S. Ct. 948, 956, 103 L.
Ed. 2d 80 (1989). The Seventh Circuit has held that, although there is no magical incantation required to
confer discretion to the plan administrator, the language of the plan must be clear. Herzberger v. Standard
Ins. Co., 205 F.3d 327, 332 (7th Cir. 2000). Additionally, there is a presumption against discretion and in
favor of de novo review that can only be overcome by an express grant of discretion to the plan
administrator. See Herzberger, 205 F.3d at 330-31.

CNA relies on Donato v. Metropolitan Life Ins. Co., 19 F.3d 375 (7th Cir. 1994) and several
Sixth Circuit cases to support a showing of discretion and an application of a deferential, arbitrary and
capricious standard of review. In Herzberger, the Seventh Circuit in distinguishing Donato explained,
“the mere fact that a plan requires a determination of eligibility or entitlement by the administrator, or
requires proof or satisfactory proof of the applicant’s claim, or requires both a determination and proof (or
satisfactory proof), does not give the employee adequate notice that the plan administrator is to make a
judgment largely insulated from judicial review by reason of being discretionary.” Herzberger, 205 F.3d
at 332, CNA’s plan language provides that, “Benefits will be paid monthly immediately after We receive
due written proof of loss.” The Seventh Circuit has rejected the position of the Sixth Circuit, holding
words such as “due proof” and “satisfactory proof "are insufficient to show a grant of discretion. Id.

CNA argues that the language of the plan, requiring “due written proof” of a loss, when read in
conjunction with the language of the summary plan description (SPD), confer the discretion needed to
justify an arbitrary and capricious standard of review. However, in light of applicable Seventh Circuit
case law, the language of the plan is what controls and a summary plan description cannot be used to
expand discretion given under the plan. See, Health Cost Controls of Illinois, Inc., v. Washington, 187
F.3d 703, 711 (7th Cir. 1999).

I review Defendant’s denial of benefits de novo, and will consider the record that was before the
administrator as well as any other evidence I consider necessary to the resolution of the benefits claim.

See Casey v. Uddeholm Corp., 32 F.3d 1094, 1099 (7th Cir. 1994),