(R. 126.) CNA never addressed this point in its subsequent letters, but Hillock’s need to rest
after doing these activities supports her claim that she is disabled and is inconsistent with CNA’s
portrayal of her as essentially normal.

In addition to aggressively characterizing the extent and frequency of her activities, CNA
also assumed that the ability to do some activities at home by itself shows that a claimant can
perform the material duties of her job. This assumption is not supported by the case law or
common sense. See, e.g., Pelchat v. UNUM Life Ins. Co., 2003 WL 21105075, *10 (N.D. Ohio
May 12, 2003) (“whether plaintiff can complete light household chores is not determinative of
whether she can perform her duties as a scheduler”). In Hawkins v. First Union Corp. Long-
Term Disability Plan, 326 F.3d 914 (7th Cir. 2003), the Seventh Circuit specifically rejected this
type of reasoning on both logical and philosophical grounds. First, as a matter of common
experience, the Seventh Circuit concluded that the claimant’s ability to do some activities at
home did not establish that he could do a full-time job. The Court noted, for example, that
“when one is working at home it is easier to interrupt one’s work every few minutes if need be
than to do so at the office.” Jd. at 918. Second, as a matter of fairness, the Seventh Circuit stated
that a disabled person should not have to face the “unfortunate choice in life [] between
succumbing to his pain and fatigue and becoming inert, on the one hand, and on the other hand
pushing himself to engage in a certain amount of painful and fatiguing activity.” Jd. For these
reasons, the Seventh Circuit concluded that engaging in a certain amount of activity at home

simply “does not prove” that a person is not disabled. Jd.’

"In fact, the Seventh Circuit went so far as to say that a claimant’s ability to work full-
time (much less do household chores) does not even prove that he is disabled. Jd. at 918 (“A
desperate person might force himself to work despite an illness that everyone agreed was totally

-13-


On the Employer’s Job Activities Statement, which is similar to the employee’s form, CF
Industries stated that Hillock worked as an administrative assistant to the vice president of
marketing and sales and that her job activities were as follows: “coordinates schedules, travel,
handles phone, correspondence, files, office mgt.” (R 156.) CF Industries also answered the
question about Hillock’s typical work day, stating that she spent 5 hours sitting, 2 hours standing,
and 1 hour walking and that she spent 50% of her time working with other people. (/d.)

Dr. Davis completed the Physician’s Statement, which is another form required by CNA.
(R 151-52.) Dr. Davis listed under the diagnosis section that’ Hillock had chronic neck pain,
myofascial pain, degenerative disc disease, and cervical fusion surgery. As for complications,
Dr. Davis stated that Hillock suffered from chronic pain, poor posture, and poor mobility. (R
151.) In response to the physical limitations question, Dr. Davis indicated that Hillock was
unable to lift any weight, cannot stand or sit for long periods of time, and that her concentration
was affected secondary to pain. (R 152.) As for Hillock’s prognosis, Dr. Davis stated that
“prognosis is poor,” that “{nJo further surgery will help,” and that Hillock will “have significant
pain for the rest of her life.” (/d.) In addition to completing the Physician Statement, Dr. Davis
also attached two MRI reports to substantiate these findings. (R 153-55.)

The initial review of the application was made by Lydia Myers, whose job title is
“disability specialist.” In addition to reviewing the materials cited above, Myers conducted a
telephone interview with Hillock on September 7, 2001. In this interview, according to Myers’
notes, Hillock stated that she has pain in her neck, shoulders, arms, and hands, has “almost
constant” headaches, and has difficulty lifting her right arm. (R 139-41.) Hillock also stated that

she was going to physical therapy since her accident in an effort to lessen her pain and that she

4.


disprove a disability. It also found that the medical report from a doctor hired by the
administrator (something CNA did not even attempt to do here) was vague and failed to
recognize that fibromyalgia is diagnosed primarily through subjective complaints of pain. Id. at
918-19. In the end, the Seventh Circuit stated that the record contains “nothing more than
scraps” to offset the medical evidence presented by claimant and his physician. Jd. at 919."
Similarly, in Houston v. Provident Life and Accident Ins. Co., 2002 WL 31779921 (N.D.
Ill. Dec. 11, 2002) (J. Gottschall), the district court found that the administrator arbitrarily and
capriciously denied benefits to a legal secretary who had cervical disc damage (as confirmed by
MRI's) and unrelieved pain. Jd. at *1-2. The court criticized the plan administrator for
“[c]hoosing to rely on the only medical opinion that did not take into account the results of
relevant, objective medical test results” and for “rely[ing] on parts of [a medical report] while
simultaneously rejecting [its] overall conclusion.” Jd. at *7, Similarly here, CNA relied on
selective excerpts from Dr. Sliwa’s report while ignoring his overall conclusion that Hillock, at a
minimum, suffered from myofascial pain and postural abnormalities. Accord Pelchat, 2003 WL
21105075 at *6, 10 (granting claimant’s cross-motion for summary judgment under arbitrary and
capricious standard because it was clear that plaintiff, who suffered from myofascial pain and
cervical disc problems, could not perform a job that required her to sit for extended periods of

time even though she was able to do “light housework, vacuum, dust, and gardening”).

"The Seventh Circuit nonetheless described its decision as a “close call” due to the
deferential nature of review under the arbitrary and capricious standard. Jd. at 919.

-17-



that she was disabled. Third, CNA did not hire a doctor to examine Hillock or even review her
medical records. Instead, 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.

CNA thus did not directly challenge any of the medical evidence and proceeded under the
assumption that Hillock did suffer from the medical conditions diagnosed by her doctors. These
included spinal degeneration and damage, carpal tunnel syndrome, and postural abnormalities. In
the original denial letter, for example, CNA addressed the medical evidence by merely stating in
conclusory fashion that it acknowledged that Hillock had “‘a condition.” (R. 133). CNA likewise
proceeded under the assumption that Hillock did suffer from the various symptoms she and her
doctors identified. (R 68: “We [] do not doubt your pain complaints.”) These included chronic
neck pain, myofascial pain, headaches, poor posture, poor mobility, numbness in the arms,
inability to lift any weight, inability to sit or stand for long periods of time, and reduced
concentration due to pain. See, e.g., R 67-68. CNA also never disputed Hillock’s claim that the
pain she experienced was severe and constant. Jd. at 68.

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 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

-9-



Ina letter dated October 12, 2001, CNA denied Hillock’s request for reconsideration,
stating that it did not find any reason to alter its earlier analysis. As for the new report by Dr.
Sliwa, CNA concluded that it indicated that Hillock had an “essentially normal physical
examination.” (R 124.)®

The claim was then forwarded to the Appeals Committee at CNA. Hillock again
submitted additional information, which consisted of a letter from Dr. Whorton who worked as a
medical consultant for CF Industries. (R 78-80.) In his November 13th letter, Dr. Whorton
summarized Hillock’s medical problems, her recurring pain, and her symptoms and concluded
that she was incapable of performing her job due to “chronic pain.” (R 80.)

Ina letter dated November 30, 2001, the Appeals Committee denied Hillock’s appeal. (R
67-69.) The Committee offered no new rationale for denying the claim and essentially relied on
the reasoning in the September 12th letter. (R 67: “Based on our review of the available
information we have no choice but to re-affirm the prior decision to deny benefits under the
above captioned policy.”) Having exhausted her administrative avenues of appeal under the

plan, Hillock filed this action here.

°This letter was again signed by Myers. CNA now asserts, however, that this decision on
reconsideration was actually made, behind the scenes in effect, by a nurse case manager named
Tina Kevish.

-6-


takes pain medication to be able to sleep at night. Myers also asked Hillock about her typical
daily activities. Hillock stated that she did some gardening, grocery shopping, and a few other
activities around the house like checking her email.

Five days later, in a September 12, 2001 letter, Myers informed Hillock that CNA had
denied her claim for long-term disability benefits. This letter serves as the most comprehensive
explanation for CNA’s decision. We quote the substantive portion of this letter in full:

Dr. Erin Davis states in the Physician’s Statement that your complications/

symptoms are, “chronic pain, poor posture, poor mobility.” Physical limitations

noted by Dr. Davis include, “Patient unable to lift any weight. Cannot stand or sit

for long periods of time. Concentration affected secondary to pain.”

According to the Employer and Employee Job Activities Statements, as an

Administrative Assistant, you have the option of sitting or standing throughout the

work day. No lifting or carrying is required. A headset is provided for telephone

usage.

According to the Employee Interview conducted with you on 09/07/01, you stated

that your Activities of Daily Living consist of gardening, pulling weeds, watering

the grass, cooking, grocery shopping, and light housework. You are able to care

for your personal needs without difficulty. You are also able to take short walks,

check email on your home compute[r], and sit up to 20 minutes at an interval.

At this time, although we acknowledge that you have a condition, the information

provided does not support that you are unable to perform the material and

substantial duties of your occupation as an Administrative Assistant. The sit or

stand option of your job would allow you to alternate positions as necessary. No

lifting or carrying of any weight is required.
(R 132-133.)

Hillock subsequently asked CNA to reconsider the decision and submitted a letter
objecting to, among other things, CNA’s description of her typical daily activities. She also
submitted additional medical evidence consisting of a report from Dr. Sliwa, an exercise

physiologist, who examined her on one occasion in June 2001.

5.



CONCLUSION
For the foregoing reasons, plaintiff's cross-motion for summary judgment is granted and
defendant’s cross-motion for summary judgment is denied. The parties are directed to appear at
a status hearing at 2:30 p.m. on March 24, 2004 to determine how to resolve the remaining issues

so that a final judgment may be entered.

ENTER:

paren: Horch { ' £004



B. The Arbitrary and Capricious Standard.

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).
Il. Applying This Standard Here.

In denying Hillock’s claim, CNA relied on two primary rationales that were set forth
primarily in the September 12th letter. First, it concluded that her job allowed her to sit or stand
as needed and that this flexibility made it possible for her to perform her job despite her medical
problems. Second, it concluded that Hillock’s ability to do some activities in her personal life,
such as light gardening and housecleaning, further demonstrated that she could perform the
material duties of her job.

A. The Medical Evidence.

Before examining these rationales in more detail, it is important to note the various things
CNA did not do. First, it never discussed the objective medical evidence submitted in support of
plaintiff's claim. Second, with the possible exception of Dr. Sliwa’s report, it never discussed
the findings and opinions of five doctors who concluded that she was suffered from serious

medical conditions. Two of these doctors — Drs. Davis and Whorton — specifically concluded

-8-



oon (06:97)

United States District Court, Northern District of Illinois

Nor Mapherate Judge John A. Nordberg “than Assigned Judge
CASE NUMBER 02 C 5126 DATE 3/1/2004
CASE Sandra A. Hillock vs. Continental Casualty Company
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
‘of the motion being presented}

MOTION:

DOCKET ENTRY:

qd) im Filed motion of [ use listing in “Motion” box above.]

(2) im} Brief in support of motiondue_

GB) im Answer brief to motion due___. Reply to answer briefdue___.

(4) oOo Ruling/Hearingon___——sset for at

(5) Oo Status hearingfheld/continued to) [set for/re-set for] on setfor _—at

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__—_ssetfor_- ss at__
(7) o Trial[set for/re-set for] on__at

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

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

CUFRCP4(m) O)Local Rule 41.1. OO FRCP41(a)(1) [) FRCP41(a)(2).

ao [Other docket entry} Enter memorandum opinion and order, For the foregoing reasons, plaintiff's |
cross-motion for summary judgment is granted and defendant’s cross-motion for summary judgment is
denied. The parties are directed to appear at a status hearing on March 24, 2004 to determine how to
resolve the remaining issues so that a final judgment may be entered. (9-1,2 6-1)

(ii) @ (For further detail see order attached to the original minute order.]
No notices required, advised in open court.

No notices required.

Notices mailed by judge’s staff.
Notified counsel by telephone.
4 no

oY | Docketing to mail notices,

Mail AO 450 form, sn
4 4S)
Copy to judge/magistrate ju - \s
‘opy to judge/magistrate judge. NO? Gusts

‘

4 eee

gos
: __ Datei relied in

C7 centear Cterk’s Office



done on an “as needed” basis, it is not reasonable to suppose (without any other evidence to back
up the assertion) that a// her job requests were of this type.

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.)

-li-



unsupportable because it is. based on. unproven and unrealistic assumptions about the nature of
Hillock’s abilities and job duties.

B. CNA’s First Rationale.

The first rationale is that Hillock’s job was flexible enough to accommodate her medical
problems. This-rationale rests on the assumption that Hillock had “the option of sitting or
standing throughout the work day.” (R 132.) According to the September 12th letter, this
conclusion is derived from the two-page job activities form filled out by her employer. CF
Industries indicated that she typically sat for 5 hours, stood for 2 hours, and walked for 1 hour.
Based on this estimate, CNA concluded that Hillock could choose to sit or stand as needed
during her work day and that she could arrange her work activities accordingly. However, 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.

This assumption is questionable based on what we know about the nature of her job, as
revealed in the very same job activities statement relied upon by CNA. Hillock worked as an
administrative assistant for the vice-president of marketing and sales. (R 156.) She coordinated
schedules and travel, answered the phone, handled the files, managed the office, and did other
related jobs. (Jd.) Many of these tasks are time-dependent and cannot be put off to a time when
a person is feeling better. Moreover, approximately half of her work day was spent working with
other people, which would make it even more unlikely that she could work on her own time
table. CNA’s rationale is based on the assumption that the vice-president for whom Hillock
worked would tailor any requests around Hillock’s recurring need to change position every 10 or

l
20 minutes. In sum, while it is Perhang easonable to assume that some of her job duties could be
aps

-10-



DISCUSSION
I Standard Of Review.

A. Which Standard Applies.

The first task is to determine the appropriate standard of review. Hillock argues that
review should be de novo while CNA argues that it should be under the arbitrary and capricious
standard. This question hinges on whether the plan contained language specifically adopting the
arbitrary and capricious standard; if not, the default standard is de novo. Firestone Tire and
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). The only issue here is whether we should look
only at the plan in effect at the time Hillock became disabled (Feb. 28, 2001) or whether we
should look at plan as it was later amended (May 1, 2001) after she became disabled but before
she applied for benefits (Aug. 16, 2001). The parties agree on the consequences of this choice.
If we are restricted to looking at only the plan without the later amendment, then review is de
novo. If we look at the amended plan, then review is under the arbitrary and capricious standard.

Initially, this question was more complex. In their opening and response briefs, the
parties cited to various cases, none of which clearly answered this question. However, before the
parties filed their reply briefs, the Seventh Circuit provided a definitive answer. In Hackett v.
Xerox Corp. Long-Term Disability Income Plan, 315 F.3d 771 (7th Cir. 2003), the Seventh
Circuit held that “the controlling plan will be the plan that is in effect at the time a claim for
benefits accrues.” Id. at 774. Relying on Hackett, CNA asserts that the plan was amended
before plaintiff's claim accrued. In her reply brief, Hillock does not disagree with this assertion.

Accordingly, this case will be reviewed under the arbitrary and capricious standard.

-7-


Hillock then applied for disability benefits. Under the policy, there was a 180-day
waiting period between the date of onset of the disability and the date benefits start. In this case,
this period ran from February 27, 2001 through August 28, 2001. To qualify as disabled under
this policy, Hillock is required to provide “objective medical findings” demonstrating that she is
“continuously disabled” during this elimination period, which meant that she could not perform
the “material and substantial duties” of her job.’ If she is considered disabled, she will receive
60% of her monthly wages subject to coordination with her social security benefits. Such
benefits would be paid until she either no longer satisfied the definition of “disability,” died, or
reached the age of 65.

Hillock’s employer submitted her claim for long-term disability benefits to CNA on
August 16, 2001. In support of her application, Hillock, her employer, and her primary care
physician filled out forms required by CNA and submitted medical records. Hillock filled out a
CNA form entitled LTD Employee’s Statement and one entitled Employee's Job Activities
Statement. (R 150, 158-59.) On the Employee’s Statement, she indicated that she was injured in
a car accident, suffered from spinal damage, and listed 5 physicians she had consulted about her
condition: (1) Dr. Davis, (2) Dr. Nockles, (3) Dr. Cross, (4) Dr. Young, and (5) Dr. Sliwa. QR.
150.) On the Job Activities Statement, she stated: “severe headaches, neck & arm pain, [and]
numbness occur throughout the work day, no matter what task is performed.” (R 159.) She also
estimated that a typical work day involved 7 hours sitting, 15 minutes standing, 30 minutes

walking, and 30 minutes bending. (R 158.)

SThere were a few other qualifications but they are not at issue here.

-3-



Following CNA’s logic, Hillock should just take the energy used to do household chores
and transfer that energy to work. While it may be possible that she could abstain during the work
week from some of the listed activities, many of them must be done in addition to work
activities. Personal grooming and cooking, for instance, are not things that one can reasonably
choose to ignore, saving them up for the weekend. The relevant question then is whether her
physical limitations and associated pain would have prevented her from doing both household
activities and work activities. CNA never addressed this point.

D. The Sliwa Report.

Although the above two rationales constitute CNA’s explanation, CNA did later
comment on the report of Dr. Sliwa, which was submitted after the original denial of Hillock’s
claim on September 12th. Specifically, in its October 12th letter, CNA explained why this report
did not alter its earlier decision. CNA therefore did not affirmatively rely on this report as part of
its rationale for rejecting this claim. However, to the extent that CNA may now be attempting to
offer Dr. Sliwa’s report as a third rationale for denying the claim, we will discuss it.

On June 18, 2001, Hillock was examined by Dr. Sliwa, who later prepared a 4-page
report summarizing his findings. (R 112-15.) In its October 12th letter, CNA stated that the
report “reveals [an] essentially normal examination.” (R 124.) However, CNA’s conclusion
only makes sense if one selectively reads this report. Based on the statements CNA excerpted
from the report, it appears that CNA simply went through the report and picked out every
instance in which Dr. Sliwa noted that a particular body function was “normal” and ignored the

many other contrary statements as well as the overall conclusions of the report.

disabling.”).

-14-



E. Case Law.

To summarize, we conclude that 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.?

This conclusion is supported by the case law. For example, in the Hawkins case already
discussed above, the Seventh Circuit held that the administrator arbitrarily and capriciously
denied benefits to a man suffering from fibromyalgia (a condition very similar in nature to
myofascial pain)'° who claimed that this condition prevented him from working at a job
“requir[{ing] him to sit more or less all day at a computer, reading and typing.” 326 F.3d at 916.
Similar to CNA here, the administrator relied heavily on an “activities questionnaire,” which
stated that the claimant “has been taking classes in an effort to become a Web designer and that
he surfs the Web for an hour or so at night and sometimes does some housework.” Jd. at 918.

As discussed above, the Seventh Circuit rejected the argument that some home-based activities

*In coming to this conclusion, we have chosen not to rely on any treating physician rule
{as advocated by plaintiff) nor have we given any deference to Social Security Administration’s
conclusion that Hillock is disabled (an argument also made by plaintiff) because we think that the
result is justified without these presumptions and because it is unclear under the case law exactly
what weight, if any, should be given to these facts. However, with regard to the issue of the SSA.
determination, we do make one observation. CNA repeatedly asserted in its briefs that it is
unfair to consider the SSA’s finding of disability because CNA was never given the materials
relied upon by the SSA and was supposedly only told of the outcome. See, e.g., CNA Opening
Br. p. 14 (“The evidence considered by the SSA was not made available to [CNA].”). This
statement appears to be contradicted, however, by CNA’s November 30th letter, which explicitly
states: “The information presented to the Social Security Administration by your treating doctors
was taken into consideration.” (R 68; see also R 87-108.)

'°See The Merck Manual of Medical Information 250 (Home ed. 1997) (“The
fibromyalgia syndromes (myofascial pain syndromes, fibromyositis) are a group of disorders
characterized by achy pain and stiffness in soft tissues, including muscles, tendons (which attach
muscles to bones), and ligaments (which attach bones to each other).”).

-16-



In May of 1999, Hillock was in a car accident and injured her back. An MRI taken after
the accident revealed a herniated disk at C3-4, canal and foraminal narrowing at C4-5, C5-6, and
C6-7 and disc protrusions at the Ti-2 level. (R 154.)° Hillock had surgery to correct these
problems. But the surgery did not eliminate her symptoms as she continued to experience _
numbness in her hands, pain her neck, bodily pain, sleep disruptions, and other problems.

On February 3, 2000, Hillock underwent a second surgery to alleviate the ongoing pain.
Dr. Russell Nockles performed anterior C5-6 and C6-7 microdiskectomy and fusion surgery. In
a follow-up visit to Dr. Nockles’ office four months later, Hillock indicated that she still
experienced fatigue, soreness, and low back pain that was not relieved by Tylenol. (R 106.) On
December 27, 2000, another MRI was taken, which indicated that Hillock still suffered from
damage to her spine.‘

Based on these problems and the continuing pain, Hillock’s primary care physician, Dr.
Erin Davis, advised her to quit working. Following this advice, she stopped working on February

27, 2001. At the time, she was 56 years old and was making approximately $3,071.20 a month.

*Even before this accident, Hillock had experienced some spinal degeneration. (R 151.)
It is thus not clear how much of the damage revealed in the MRI was pre-existing and how much
was caused by the accident. For purposes of this case, however, the cause is not relevant.

‘Specifically, the MRI report contains the following conclusions:

1. Small central and right lateral herniation of nucleus pulposis at C3-4 with
minimal compression of the thecal sac.

2. Moderate sized osteophyte at C4-5 with moderate compression on the
thecal sac and also causing moderate spinal canal stenosis.

3. Moderate neural foraminal stenosis at C4-5 and C5-6.

4. Solid anterior interbody fusion of C5, C6 and C7.

(R 155.)

-2-



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
SANDRA A. HILLOCK, )
) DOCKETED
Plaintiff, .
) MAR - 2 2noa
) No. 02 C 5126
v. )
) Judge John A. Nordberg
)
CONTINENTAL CASUALTY COMPANY, )
a CNA Company )
)
Defendant. )
MEMORANDU; TON ORDE

This is an ERISA case challenging an administrator's decision to deny long-term
disability benefits. Before the court are cross-motions for summary judgment. For the reasons
set forth below, we grant summary judgment in favor of plaintiff Sandra A. Hillock and against
defendant Continental Casualty Company, a CNA Company (“CNA”).

BACKGROUND'

In 1997, Sandra Hillock began working for CF Industries, Inc. (“CF Industries”). As an

employee, she was a participant in her employer’s disability income insurance policy

underwritten by CNA (Policy No. SR-83078179).”

‘The following facts are undisputed and are taken from the administrative record.

2This policy constituted an “employee welfare benefit plan” as defined by 29 USC. §
1002(1), and Hillock was a “participant” as defined by 29 U.S.C. § 1002(7).

-l-

an


Cc. CNA’s Second Rationale.

CNA’s second main rationale fares no better. CNA concluded that Hillock’s ability to do
some chores and activities while at home meant that she was fully capable of working an 8-hour
job 5 days a week despite her medical conditions and pain.

As an initial matter, CNA overstated the amount and degree of her home-based activities.
In the September 12th letter, CNA described Hillock’s daily activities in a laundry list that makes
it appear that she did all these activities easily and all in one day. Myers’ own notes from this
telephone conversation, however, indicate that Hillock’s abilities were not as broad or frequent as
portrayed in the letter. Although Hillock stated that she does gardening on occasion, she does so
only from a sitting position. (R 140.) Although she does some grocery shopping, her husband
goes with her and carries all the groceries. (/d.) Although she could get dressed, she still had
difficulty pulling a shirt over her head and had to have a seat in the shower to assist her. (Id.)

The September 12th letter’s description of her daily activities is also misleading to the
extent that it suggests that the activities are all done on a single day. As Hillock made clear CNA
in a letter sent after the initial decision, she could never do all these activities in one day but
could only do one a day and then not more than two a week:

Yes, there may be a day when I can sit on a stool in the garden and weed for 20/30

minutes; however, that is the extent of my physical activity for that day. I may be able to

assist with dinner that evening, but more times than not, my husband and I revert to easily
prepared meals. [] Your letter lists activity-after-activity, but I cannot perform more than
one of those listed in your letter on any given day, and not more than two in any given

week since the fall of 2000. There may be an afternoon when I can perform light
housework, but no other activities occur the next day or perhaps several days thereafter.

-12-



A fair reading of the report shows that it contains a mixture of statements, some of which
indicate normal functions in places but many other statements indicating that Dr. Sliwa
concluded that Hillock suffered from “significant” or “decreased” limitations. The following
paragraph is typical of the larger report:

In a standing position, her shoulders, scapula, iliac crests and greater trochanters

were symmetric. However, she had a significant disruption of normal anterior and

posterior curvature. She had a posterior pelvic tilt, a decreased lumbar lordosis, a

striking flattening of the thoracic spine, increased cervical lordosis with the head

carried markedly interior. She could sidebend the fingertips approximately nine

cm above the knee to the right and to the left, and id flex with fingertips midway

between the knees and the ankles.

(R 113.) As this passage illustrates, Dr. Sliwa observed that Hillock had a number of
limitations, some of which were significant. But more probative than his specific observations
are his overall conclusions and recommendations. He concluded unequivocally that Hillock
suffered from myofascial pain, significant postural abnormalities, and significant limitations in
the range of motion in the thoracic and lumbar spine. (R 114.) Moreover, he recommended that
Hillock participate in pain therapy for these conditions. However, because he had not been able
to review Hillock’s MRI’s, he could not make a firm diagnosis as to whether she should undergo
further surgery and whether her pain therapy should be on an outpatient basis or in the pain

program. (R 115.)* In any event, these are not recommendations you would expect from a

doctor who believed that the patient was -- in CNA’s words — “essentially normal.”

"It is true that one of Dr. Sliwa’s conclusions was that there was “[q]uestionable
radiculopathy” (R 115) —a fact CNA pointed to in the October 12th letter. But this statement,
which is tentative on its face, is based at least in part on the fact that Dr. Sliwa had not yet been
able to review Hillock’s MRI’s or EMG’s: “The patient did not have her MRI’s or her EMG’s
with her today and we would need to view these to see if indeed, she would warrant a surgical
opinion.” (/d.)

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