Prudential does not contest that Ms, Deal is not currently
working and is under the regular care of a doctor. The only
contested issue with respect to total disability is whether Ms.
Deal is able to perform any job for which she is reasonably fitted.
Dr. Anthony Brown, a physician chosen by Prudential to conduct an
independent medical examination of Ms. Deal, concluded that
“[t]here would appear to be no reasonable way to allow this patient
to work, even in a sedentary capacity.” (R, at 00416.)
Prudential, however, points to an April 17, 2001 fax received From
Dr, Henry Finn, one of Ms. Deal’s physicians, confirming that “Ms.
Deal is capable of sedentary work for a full time, 8 hour work
day.” (R, at 00210.) One week after the fax, however, Dr. Finn

wrote in a letter to another of Ms. Deal’s physicians:

Her insurance company would ke her to return to a sedentary
job but I believe that her knee is so problematic and her
other knee is symptomatic and it would be very difficult for
her, even just to travel back and forth to work, I have told
her this and I will support her going on full disability.

(R. at 00960.) While Dr. Finn later admitted that it would be

feasible for her to do sedentary work out of her home such as

telemarketing, (R. at 00804), he testified in a deposition that
anything she has to do other than the activities of daily
living to keep herself alive, go to the grocery store,
whatever you need to do to live, is all that she should be
asked to do because anything else to support herself adds
physical and psychological stress in my opinion. So I feel
she is permanently disabled from work,

{R. at 00805,) While this evidence created a genuine issue of

material fact at the summary judgment stage, I now find that Ms.


consideration of all of Ms. beal's problems including physical and
psychiatric disorders. The only evidence of this statement by Dr.
Brown, however, is Prudential’s log of a telephone call made by
Prudential to Dr. Brown in which Dr. Brown allegedly expressed this
opinion. (R, at 00086.) Further, even if Dr. Brown considered
both physical and psychological conditions in determining whether
Ms. Deal was able to work, consideration of both factors does not
indicate that the physical impairments alone were insufficient to
render Ms. Deal unable to work. Likewise, Dr. Finn’s testimony
that anything beyond performing the tasks of daily living adds
physical and psychological stress such that Ms. Deal is unable to
work does not indicate that her physical condition alone is
insufficient to prevent her from working. Because Prudential has
not shown that absent her mental condition, Ms. Deal would be able
to perform work for which she is reasonably fitted, application of
the benefit limitation is unwarranted.

Because Ms. Deal has shown that she has a total disability
under the Plan, and Prudential has not shown that the mental
disorder benefit limitation applies, Prudential’s decision to
terminate Ms. Deal’s benefits was incorrect. Consequently, Ms
Deal is entitled to her benefits as if they had never been
terminated,

III, Interest and Fees


a letter from Dr. Clay Canaday stating that he did not believe that
Ms. Deal was permanently or totally disabled and that “she could
have accomplished sedentary type work.” (R. at 00496-503.)
Prudential also points to a letter from Dr. Michelle Muellner
indicating that “{t]here is no reason she cannot perform gainful
work at this time.” (R. at 00236.) First of all, Dr. Canaday’s
letter that Ms. Deal could perform sedentary work indicated that
she could only work four hours a day. Second, both Dr. Canaday and
Dr. Muellner based their reports on examinations made in 1992,
prior to a knee surgery performed by Pr. Finn in 2000, and prior to
the reports and comments of Dr. Brown and Dr, Finn.

Prudential also points to various medical findings by Dr. Finn
as well as physical therapy reports by Jim Beese. These Findings
and reports say things like “[s]he has 100 degrees of motion [with]
no instability or effusion,” (R, at 00301), and “Single leg Partial
weight bearing squats to fatigue l24x/R60x with 54 lbs” (R. at
00128). Absent interpretation by medical professionals, such
results do not provide support one way or the other regarding Ms,

Deal’s ability to perform work for which she is reasonably fitted.’

1 Prudential argued that an investigation report of Ms. Deal

supported its conclusion. The surveillance report is hearsay,
depending entirely on comments reportedly stated by neighbors.
Even if it was considered, however, it indicates that Ms. Deal is
not seen often and that when she walks, she proceeds “in a slow
manner.” (R. at 00094.)


Deal is totally disabled under the Plan definition. On summary
judgment, I indicated that it was possible to read Dr. Finn’s later
comments consistently with his fax to Prudential indicating that
Ms. Deal is capable of performing sedentary work on a full time
basis. At this stage of litigation, however, I find that such a
reading is not plausible. Reading Dr. Finn’s deposition comments
in context, he does not confirm the April 17 fax indicating that
Ms. Deal can perform full time sedentary work. While Dr. Finn
focused on the difficulty of commuting and admitted when asked that
telemarketing out of her home would be feasible, he clarifies his
opinion by indicating that she should not be asked to do anything
other than daily living activities. He further clarifies by
responding when asked “[are you] of the opinion that there are at
least some employment functions that she could perform out of the
home?” that “I think she is permanently disabled from any type of
work.” (R.- at 00805-06,) I find that despite the April 17 fax and
the isolated comment in his deposition (later contradicted) that
telemarketing out of her home would be feasible, Dr. Finn’s opinion
is that Ms. Deal is unable to perform any job. This opinion,
coupled with Dr, Brown’s finding that there is no reasonable way to
allow Ms, Deal to work, even in a sedentary capacity, indicates
that Ms. Deal is totally disabled under the Plan definition.
Other evidence presented by Prudential does not outweigh this

evidence that Ms. Deal is totally disabled. Prudential points to


While I previously determined that these reports were
sufficient to defeat Ms. Deal’s motion for summary judgement, I now
find that the evidence does not support application of the mental
disorder limitation, The Plan indicates that benefits are limited
when the employee's “Disability” is caused in part by a mental
disorder. “Disability” is defined as “either Total Disability or
Partial Disability.” (R. at 00164.) Thus, the issue here is
whether Ms. Deal’s mental problems caused, at least in part, her
Total Disability, i.¢., her inability to perform any work for which
she is reasonably fitted. In order to show that mental disorders
caused, at least in part, Ms. Deal’s disability, Prudential must
show’ that absent her mental problems, she would have been able to
perform work for which she is reasonably fitted. Prudential fails
to make that showing here. While Dr. Feldman’s and Pr. Aoki’s
reports indicate that her depression and anxiety may have worsened
her physical problems or at least hindered their treatment, these
reports do not indicate that absent her mental problems, she would
have been able to work. As noted above, the most relevant evidence
regarding her ability to work comes from Dr. Brown and Dr. Finn.
Prudential points to the opinion of Dr. Brown that his conclusion

that Ms. Deal was incapable of even sedentary work was based on

2 “The burden of proving that a claim falls within an
exclusion rests squarely on the insurer.” dHurst~Rosche Eng’rs,
Inc. v. Commercial Union Ins. Co., 51 F.3d 1336, 1342 (7th Cir.
1995).


tigate onday wpe cD)

United States District Court, Northern District of Illinois

Name of Assigned Judge Elaine E. Bucklo Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C8703 DATE 5/22/2003
CASE Deal vs, Prudential Insurance Co,
TITLE
Tin the following box (a) indicate the party filing the motion, c.g., plaintiff. defendant, 3rd party plaintift. and (b) state briefly the nature
MOTION: of the motion being presented.

DOCKET ENTRY:

qd) Oo Filed mation of [ use listing in “Motion” box above.}

(2) o Brief in support of motion duc

(3) oO Answer brief to motion duc___._ Reply to answer brief due__

(4) ao Ruling/Hearing on set for at .

(5) o Status hearing|held/continued to] [set for/re-set for}on set for at

(6) Oo Pretrial conference[held/continued to| [set for/re-sct for]on__set for att.
(7) Qo Trial[set for/re-set for] on all

(8) o [Bench/Jury trial] [Hearing] held/continued to___at

(9) o ‘This case is dismissed | with/without} prejudice and without costs{by/agreement/pursuant lo}

Orrcpa(m) OLocal Rule 41.) COFRCP41(ay1} OO 1RCPA4I1(a)(2).

Ms, Deul’s request for attorneys’ fees is granted. Enter Memorandum Opinion and Order.

dl) {For further detail see order attached to the original minute order.]

oe _| [Other docket entry] ‘The court finds that because Ms. Deal has shown that she has a tolal disability
under the plan definition, and Prudential has failed to show that any benefit limitation applies, Ms. Deal
is entitled to benefits under the plan. Prudential is ordered to pay benefits retroactively from July 2001
plus 4.92 % interest, and to continue paying benefits as long as Ms. Deal remains eligible. Additionally,

No notices required. advised in open court.

No notices required.

Document
Number

oY | Notices maited by judge's statT

Notified counsel by telephone, MAY 2,8,2003

Docketing to nuail notices.

Mail AQ 450 form,

Copy to judge/magistrate judge. bees a
solos ee ie yaad
ate mailed notice
canrtroom ef ban a
MP) deputy’s we
initials
Dateftime received in. .
contrak Cl6tk FOFICC | Liming ery nin



Corp., 954 F.2d 1397, 1405 (7th Cir. 1992). I find that Prudential
did not have a solid basis for its position, and Ms. Deal is
therefore entitled to attorneys’ fees. As discussed above, the
evidence presented by Prudential to support its position that Ms.
Deal was able to perform other work was, although sufficient to
defeat summary judgment, extremely weak. The April 17 fax from Dr.
Finn and his isolated deposition comment regarding telemarketing
were later clarified or contradicted, the letters from Dr. Canaday
and Dr. Muellner were based on examinations prior to a later knee
surgery, and both Prudential’s own doctor, Dr, Brown, and Dr, Finn
said Ms. Deal could not work. Also as discussed above, with
respect to the benefit limitation section, Prudential completely
failed to present evidence showing that absent mental problems, Ms.
Deal would have been able to work, Prudential thus has net shewn
a solid basis for its position, and cannot rebut the presumption of

attorneys’ fees here.

Iv. Conclusion
Because Ms. Deal has shown that she has a total disability
under the Plan definition, and Prudential has failed to show that
any benefit limitation applies, Ms. Deal is entitled to benefits
under the plan. Prudential is OxpeRep to pay benefits retroactively

from July 2001 plus 4.92% interest, and to continue paying benefits

11


In addition to her benefits, Ms. Deal seeks prejudgment
interest and attorneys’ fees. In this circuit, there is a
presumption in favor of awarding prejudgment interest in ERISA
cases. Fritcher v. Health Care Serv, Corp., 301 F.3d 81], 820 (7th
Cir. 2002). As ERISA contains no statutory prejudgment interest
rate, the Seventh Circuit suggests that I use the prime rate for
fixing prejudgment interest. Id. The average of the monthly
averages of the prime rate from July 2001 (the month in which
Prudential ceased paying benefits) through April 2003 is 4.92%.?
Prejudgment interest is thus to be calculated at this rate.

ERISA permits me to award attorneys’ fees to a prevailing
party. 29 U.S.C. § 1132(g). The Seventh Circuit has indicated
that there is a “modest presumption” that prevailing parties are
entitled to attorneys’ fees. Bowerman v. Wal-Mart Stroes, Ine.,
226 F.3d 574, 592 (7th Cir. 2000). Although the test for
determining whether an award of attorneys’ fees has been stated in
various ways, a party must have a “solid basis” for its position,
otherwise it has really done nothing more than harass its opponent
by putting her through the expense and bother of litigation for no

good reason. Prod. & Maint. Employees’ Local 504 v. Roadmaster

* The monthly average prime rates for July 2001 through April

2003 were, respectively, 6.75%, 6.67%, 6.28%, 5.53%, 5.10%, 4.84%,
4.75%, 4.75%, 4.758, 4.75%, 4.75%, 4.75%, 4.75%, 4.75%, 4.75%,
4,75%, 4.35%, 4.25%, 4.25%, 4.25%, 4.25%, and 4.25%. Historic
monthly average prime rates are available at http://ww
federalreserve.gov/releases/h15/data/m/prime.txt.

10


Based on the opinions of Dr. Finn and Dr. Brown, which { find
outweigh the evidence presented by Prudential, I find that Ms. Deal
is unable to perform any work for which she is reasonably fitted.
As a result, Ms. Deal has established that she is totally disabled
under the Plan,

B. Benefit Limitation

The Plan also contains a “Benefit Limitation” section that
applies “if [the employee’s] Disability, as determined by
Prudential, is caused at least in part by a mental, psychoneurotic
or personality disorder.” In that case, benefits are not payable
for more than 24 months. {(R. at 00167.) As discussed in my
decision denying Ms. Deal's motion for summary judgment, Prudential
points to two psychology reports indicating that Ms. Deal’s
disability is caused, at least in part, by mental disorders. Deal,
222 F. Supp. 2d at 1072. First, Dr. Caryn Feldman, a psychologist,
reported after examining Ms. Deal that “Ms. Deal appears caught in
a vicious cycle where pain and depression lead to decreased
activity which serves to increase deconditioning and depression,
which may aggravate physical symptoms further.” (R. at 00523.)
Second, after a health psychology evaluation with Ms. Deal, Dr,
Melanie Aoki reported that unless her depression and anxiety were
directly addressed, her response to medical treatment for her knee

pain would likely be compromised, (R. at 00233.)


(7th Cir. 1992). As such, “the employee must establish that she
has satisfied the conditions necessary for benefits under the
plan.” Robyns v. Reliance Standard Life Ins, Co., 130 F.3d 1231,
1235 (7th Cir. 1997) (internal quotation omitted).
A. Votal Disability

Under the Plan, employees are entitled to benefits while they
are totally disabled. {R. at 00164.) The Plan defines total
disability as follows:

“Total Disability” exists when Prudential determines that all
of these conditions are met:

1. Due to Sickness or accidental injury, both of these are
true.

a. You are not able to perform, for wage or profit, the
material and substantial duties of your occupation.

b. After the Initial Duration of a period of Yotal
Disability, you are not able to perform for wage or
profit the material and substantial duties of any job for
which you are reasonably fitted by your education,
training or experience.
2. You are not working at any job for wage or profit.
3. You are under the regular care of a Doctor.
(R, at 00164,} Prudential initially agreed that Ms. Deal was
totally disabled under this definition when it approved her claim
for benefits on May 1, 2000. (R. at 00467-68.) Prudential
subsequently determined that she was no longer entitled to
continued benefits on April 18, 2001. (R. at 00204-07.) The issue

before me now is whether Ms. Deal satisfied, and continues to

satisfy, the conditions necessary for benefits under the Plan.

3


began receiving benefits, including retroactive payments from
December 1998 onward.

Ms. Deal saw a host of medical professionals for both physical
and psychological conditions arising out of her knee injury and
associated pain. She was diagnosed with Moderate Major Depressive
Disorder. In October 2000, Prudential notified Ms. Deal that her
initial period of benefits would expire in December, and that it
would conduct an evaluation to determine Ms. Deal’s eligibility for
continued benefits,

In April 2001, Prudential determined that Ms. Deal was no
longer eligible for benefits under the Plan. Ms, Deal appealed
this decision, submitting additional medical reports with her
appeal, Her appeal was denied in September 2001, She submitted an
appeal to this decision in October 2001, which again was denied by
Prudential. In November 2001, Ms. Deal initiated this lawsuit.

II. Eligibility for Benefits

As discussed in my decision denying summary judgment,
Prudential’s denial of benefits is not entitled to deferential
review, but rather I examine the benefits determination de nevo and
may consider evidence not before the plan administrator. Deal v.
Prudential Ins. Co., 222 F. Supp. 2d 1067, 1068-70 (N.D. Ill.
2002). Claims for benefits brought under 29 U.S.C. § 1132(a) (1) (B)

are essentially assertions of contractual rights under an employee

benefit plan. Tolle v. Carroll Touch, Inc., 977 #.2d 1129, 1133



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

CATHI DEAL,
Plaintiff,
Vv.
No. QO1 € 8703

PRUDENTIAL INSURANCE COMPANY OF
AMERICA,

Defendant. Peres

MAY 23 2003
MEMORANDUM OPINION AND ORDER

Plaintiff Cathi Deal sued defendant Prudential Insurance
Company of America (“Prudential”) under section 1132(a) (1) (B) of
ERISA, 29 U.S.C. § 1001 et seqg., to recover benefits under an
employee benefit plan (“Plan”) underwritten and insured by
Prudential. Following a paper trial in which both sides submitted
trial briefs and presented oral arguments, I find that Ms. Deal is
entitled to benefits under the Plan.

I. Background

Ms. Deal was employed as a human resources director,
administrative assistant, and office manager by Telephone & Data
Systems, Inc. until June 1998 when she suffered an injury to her
left knee in an elevator accident. Ms. Deal returned to work
briefly until the end of November 1998. In February 2000, Ms. Deal

filed a claim for long term disability payments based on her knee

injury. Her claim was approved by Prudential, and in May 2000 she



for as long as Ms. Deal remains eligible. Additionally, Ms. Deal’s

request for attorneys’ fees is GRANTED.

Elaine E. Bucklo
United States District Judge

Dated: Maya 2003

12