Continental forwarded this report to the Illinois Department of Insurance on February 14, 2002.
(A.R. 024) There is no indication in the récord that Continental forwarded this report to Plaintiff
prior to the onset of litigation.

Cc PLAINTIFF’S DOCUMENTATION OF DISABILITY

Plaintiff was receiving treatment from three doctors: Dr. James Nuzzo, a podiatrist; Dr.
Thomas Palella, a rheumatic disease specialist; and Dr. John Sage, the primary treating physician
after Plaintiff's motorcycle accident in June 2000.

1. Plaintiff's Records from Dr. Nuzzo

Plaintiff's treatment from Dr. Nuzzo began in April 1996, when Dr. Nuzzo saw him for
heel pain. (A.R. 293) Dr. Nuzzo recommended Plaintiff see a rheumatologist at that time, which
led to Plaintiff's relationship with Dr. Thomas Palella (which is discussed below). Dr. Nuzzo did
not see Plaintiff again until September 20, 1999. Dr. Nuzzo’s notes from that visit indicate that
Plaintiff was experiencing rheumatoid arthritis that was “very painful” and causing “excruciating
pain.” (A.R. 293) Plaintiff was injected with Marcaine that day to decrease the pain. (A.R. 293)
On September 30, 1999, Plaintiff saw Dr. Nuzzo again and was “much f[improved]. To correct
after Thanksgiving.” (A.R. 293) On December 1, 1999, Dr. Nuzzo performed a bunionectomy
on Plaintiff's right big toe. Dr. Nuzzo indicated that Plaintiff was disabled as a result of that
condition, but Plaintiff's recovery was swift. As of January 14, 2000, Plaintiff was “healed
without complication” from the surgery. (A.R. 294) On February 14, 2000, Dr. Nuzzo was
pleased with Plaintiffs recovery and was set to release him to work on March 1, 2000. (A.R.
294) By April 4, 2000, Plaintiff was asymptomatic, happy, and pain-free. (A.R. 294) Dr. Nuzzo

later sent a letter indicating that his conclusions about Plaintiff on April 4, 2000 were limited to


himself; and (3) Plaintiff is not gainfully in any occupation for which he is or becomes qualified
by education, training or experience. In this case, there is no dispute that Plaintiff was under the
regular care of a licensed physician on the date he stopped working. Nor is there any dispute that
Plaintiff is not gainfully employed nor has he been gainfully employed since the date he stopped
working for Defendant. This case hinges on whether Plaintiff was “continuously unable to
perform the substantial and material duties of his regular occupation” as of the date he stopped
working: September 7, 1999.

Plaintiff has submitted a substantial amount of medical documentation of his disability.
Unfortunately for Plaintiff, the vast majority of the documentation he has submitted relates to
injuries and other developments in his health that he sustained after September 7, 1999.
Plaintiff's motor vehicle accident in June 2000, which is listed as one of the sources of his
disability on his original disability claim, is frankly irrelevant to the question of whether he was
disabled as of September 7, 1999. The Court will properly focus the inquiry on Plaintiff's health
issues preceding the alleged date of disability onset.

In July of 1999, Plaintiff tore his anterior cruciate ligament in a volleyball game. This is
a serious injury to the knee that would doubtless limit Plaintiff's mobility during the period of
recuperation. Plaintiff is not basing his disability claim on his knee injury in the volleyball
game, though. Plaintiff's ability to participate in a volleyball game in July of 1999 suggests that
his seronegative spondyloarthropathy was not crippling at that time. Dr. Paletla’s notes from a
July visit confirm that Plaintiff was “overall doing well.” (A.R. 088)

On September 2, 1999, Plaintiff called Dr. Palella to complain of pain in his right arm.

The phone message subject reads “Emergency!” but then Plaintiff did not visit with Dr. Palella


was “doing fairly well lately - minor occ[asional] L{ow] B[ack] P[ain].” (A.R. 268). On January
18, 2000, Dr. Palella wrote a letter “to whom it may concem” indicating that Plaintiff “was doing
fairly well [on November 9, 1999] although he was not entirely free of joint problems involving
his low back, left great toe, left knee and right elbow.” (A.R. 270) On March 21, 2000, Plaintiff
complained to Dr. Palella of arm and chest pain; Dr. Palella also noted increased low back pain
at that time. (A.R. 273)

On Junel9, 2000, Plaintiff visited Dr. Palella subsequent to a major motorcycle accident
on June 3, in which he ruptured his spleen and fractured multiple ribs. (A.R. 259) Dr. Palella’s
notes from July 12, 2000 indicate Plaintiff was experiencing back and rib pain with any activity.
(A.R. 257) On August 15, 2000, Plaintiff complained to Dr. Palella of constant right side flank
pain that increased with change in posture, breathing, coughing and eating. (A-R. 252) On
November 14, 2000, Dr. Palella noted that Plaintiff was in constant back pain, sleeping poorly,
and experiencing daily cervical pain in the momings. (A.R. 241) On January 22, 2001, Plaintiff
saw Dr. Palella and complained of hip and back pain, left shoulder pain, and weakness in his
knee. (A.R. 235)

In a letter “to whom it may concern” dated October 4, 2000, Dr. Palella provides a
narrative history of his treatment of Plaintiff up to that date. (A.R. 326) He wrote that Plaintiff
had “ongoing joint problems to varying degrees” from 1996 through most of 1998. (A.R. 328)
Plaintiff “showed some improvement in early 1999 but then suffered his left ACL tear in June
which limited his mobility for a time.” (A.R. 328) The next note is of the motorcycle accident on
June 3, 2000, which led Dr. Palella to the conclusion “based on my most recent assessments of

him on June 19, 2000 and August 15, 2000” that Plaintiff “is disabled.” (A.R. 328)


his area of treatment, i.e. Plaintiff's feet. (A.R. 125)

Plaintiff saw Dr. Nuzzo again on July 24, 2000 after Plaintiff banged his toe against a
dresser in early July. (A.R. 295) Dr. Nuzzo administered an injunction of Marcaine to ease the
pain (A.R. 295) On August 7, 2000, Plaintiff felt almost 100 percent better since the injection.
(A.R. 295) Plaintiff returned to Dr. Nuzzo on September 7, 2000 complaining of “lesser
metatarsalgia.” (A.R. 295) Dr. Nuzzo suggested Plaintiff use orthotics. On October 12, 2000,
Dr. Nuzzo noted Plaintiff could walk better with the inserts and “not for long, and almost not at
all without orthotics.” (A.R. 295)

2. Plaintiff's Records from Dr. Paleila

Plaintiff had been receiving treatment from Dr. Thomas Palella since April 1996 for a
seronegative spondyloarthropathy. (A.R. 270) Seronegative spondyloarthropathy is a “family of
arthritic disorders” that “constitute a heterogeneous group of diseases, more common in males,
manifest by inflammatory disease involving the sacroiliac joints, spinal joints, and peripheral
joints.” (A.R. 128) On January 13, 1999, Plaintiff visited Dr. Palella complaining of right
shoulder, elbow, knee, and lower back pain. (A.R. 113) On February 25, 1999, Plaintiff visited
Dr. Palella complaining of fatigue and poor sleep due to back pain. (A.R. 114) In July 1999,
Plaintiff visited Dr. Palella again after he tore his anterior cruciate ligament playing volleyball.
(A.R. 088) In July 1999, Dr. Palella indicated that Plaintiff was “overall doing well.” (A.R. 088)

Dr. Palella’s next record is on September 2, 1999, when Plaintiff called complaining of
right arm and elbow pain. (A.R. 267) The phone message indicates that the situation was
“Emergency!” (A.R. 267) Dr. Palella did not see Plaintiff until November 9, 1999 in connection

with these complaints. (A.R. 268). Dr. Palella’s notes from that meeting indicate that Plaintiff


This court will review a plan administrator's denial of benefits de novo “unless the benefit
plan gives the administrator or fiduciary discretionary authority to determine eligibility for

benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 115 (1989). See also Militello v. Central States, Southeast and Southwest Areas Pension

Fund, 360 F.3d 681, 685 (7th Cir.2004); Hackett v. Xerox Corp. Long-Term Disability Income

Plan, 315 F.3d 771, 773 (7th Cir.2003). Where the plan grants discretionary authority to the
administrator, the court reviews a denial of benefits under the arbitrary and capricious standard.
Militello, 360 F.3d at 685; Hackett, 315 F.3d at 773. Accordingly, under ERISA, “(t]he standard
of review depends on the amount of discretion that plan documents afford the plan
administrator.‘ Militello, 360 F.3d at 685. There is no dispute that the de novo standard of
review is applicable to Continental’s decision to deny Plaintiff's claim for benefits.

When applying a de novo standard, the Seventh Circuit has urged district courts to
“restrict [themselves] to the evidence before the pian administrator” unless circumstances clearly
establish that additional evidence is necessary. See Casey v. Uddeholm Corp. , 32 F.3d 1094,
1099 (7th Cir. 1994). Both parties have represented to the court that they have no additional
evidence to supplement the administrative record, so this is not a case where additional evidence
is necessary. Consequently, a decision on the merits at the summary judgment stage is
appropriate.

B. DISCUSSION

The policy under which Plaintiff seeks disability benefits has only three requirements: (1)
Plaintiff must be continuously unable to perform the substantial and material duties of his regular

occupation; (2) Plaintiff must be under the regular care of a licensed physician other than


Minute Order Form (06/97)

fe

United States District Court, Northern District of Illinois

‘Name of Assigned Judge i Sitting Judge If Oth
or Magistrate Judge David H. Coar then Assigned Judge
CASE NUMBER 03 C 2664 DATE 9/3/2004
CASE Zamecnik vs. Abbco, Inc.
TITLE
[in the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
Cross-Motions for Summary Judgment
DOCKET ENTRY:
(1) oO Filed motion of { use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) Oo Answer brief to motion due . Reply to answer brief due. .
(4) Qg Ruling/Hearing on set for at
(5) a Status hearing[held/continued to} [set for/re-set for] on set for at
(6) 0 Pretrial conference[held/continued to} [set for/re-set for] on set for at .
(7) Oo Trial[set for/re-set for] on at
(8) a [Bench/Jury trial] [Hearing] held/continued to at
(9) ia) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OCOFRCP4(m) OLocal Rule 41.1 OOFRCP4i(a\(1) [) FRCP41(a)(2).
ao [Other docket entry] For the reasons set forth.in the attached memorandum opinion and order,
Defendant’s Motion for Summary Judgment [Doc, 35] is GRANTED and Plaintiff's Motion for Summary
Judgment [Doc. 37] is DENIED. This case is closed. Any and all other motions are moot and terminated.
(1) mf [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
. : Number
No notices required. rmunber of novices y
Notices mailed by judge’s staff.
Notified counsel by telephone. i
7 | Docketing to mail notices.
| Mail AO 450 form. ' docket as
; F Lung \ |
Copy to judge/magistrate judge. 103 iglesia ‘$n
. date mailed notice
courtroom s: 2 id
jar(Ic) deputy’s id Lo {7
m initials Dae o Si
~ Date/timg received in
= at edd Ottioe railing deputy italy



however, Dr. Nuzzo’s notes indicate that Plaintiff's condition was vastly improved after
receiving treatment on the first visit, Between the time of Plaintiff's September 20, 1999 visit to
Dr, Nuzzo and the December 1, 1999 bunionectomy, there is no indication in the record that
Plaintiff would have been continuously unable to perform his regular work duties owing to the
bunion. After the bunionectomy, his recovery was swift and complete. Again, this precludes the
possibility that Plaintiff was continuously unable to perform his work duties owing to the bunion.

Outside of Dr. Palella’s December 14, 2000 indication that Plaintiff's disability onset was
September 7, 1999 and his July 13, 2001 letter concluding that Plaintiff was disabled “in the
latter months of 1999,” there is literally nothing in this administrative record that suggests
Plaintiff became continuously unable to perform the duties of his occupation on September 7,
1999. Plaintiff asserts that Dr. Palella’s post hoc conclusions about Plaintiff's onset of disability
are sufficient because the plan does not require a specific quantum of medical evidence to prove
disability. The plan requires the claimant to submit “due written proof of loss” in order to be
eligible for benefits. A blank assertion from the claimant’s treating physician over a year after
the alleged onset of disability which is not supported by records at or around the time of the
alleged onset of disability is simply not “due written proof of loss.”

Plaintiff's chronic seronegative spondyloarthropathy was a condition with which he was
able to work effectively for the previous three years, Approximately six weeks prior to
Plaintiff's alleged onset of disability, the condition did not prevent Plaintiff from tearing his
anterior cruciate ligament in a volleyball match. Dr. Palella’s records of treatment for Plaintiff's
seronegative spondyloarthropathy contain no indication that the condition worsened substantively

between the July knee injury and the September 7, 1999 date Plaintiff ceased working. It is

11


until November 9, 1999. On that date, Dr. Palella indicated that Plaintiff was “doing fairly well
lately.” Dr. Palella’s “to whom it may concern”letter of January 18, 2000 reaffirms that Plaintiff
was “doing fairly well” on that visit. (A.R. 270) Dr. Palella’s second “to whom it may concen”
letter of October 4, 2000, which provides a narrative account of Dr. Palella’s treatment of
Plaintiff prior to Plaintiff's filing of a disability claim, does not mention anything significant in
the latter part of 1999, It is curious then, that on December 14, 2000, with the disability claim
clearly in contemplation, Dr. Palella indicated that September 7, 1999 was the date Plaintiff
became totally disabled. Much later, on July 13, 2001, Dr. Palella wrote that Plaintiff's “disease
as well as its treatment led [him] to conclude [in the latter months of 1999] that he was disabled
from his occupation as a sales manager.” There are no contemporaneous records to support that
conclusion.”

The only other health concern that was afflicting Plaintiff around the time he stopped
working for Defendant was the painful bunion in his right big toe. When he saw Dr. Nuzzo for
this condition on September 20, 1999, it is apparent from the notes that the condition was
extremely painful and probably somewhat crippling. Although the record is devoid of any
indication that this painful bunion manifested prior to September 20, the Court will recognize

that this painful condition might have arrived as early as September 7, 1999. Ten days later,

Plaintiff also points to a June 15, 2001 letter from Dr. Sage that indicates Plaintiff “had
been unable to work because of his spondyloarthropathy condition over one year prior to his
accident [in June 2000).” (A.R. 127) As an evidentiary matter, this letter would be wholly
inadmissible on this point. Dr. Sage had no relationship with Plaintiff prior to the motor vehicle
accident in June 2000, so he has no basis to conclude when Plaintiff became unable to work.
Additionally, if Dr. Sage’s baseless conclusion were to be believed, Plaintiff's disability due to
his seronegative spondyloarthropathy would have been complete before his volleyball injury in
July 1999, If Plaintiff was able to perform on the volleyball court, he was surely able to perform
his work duties “over one year prior to his accident.”

10


On a claim-related form dated December 14, 2000, Dr. Palella indicated that he first
advised Plaintiff to cease work on September 7, 1999. In a letter dated March 15, 2001, Dr.
Palella informed Defendant that it is his opinion that Plaintiff had been disabled “for some time”
from his usual occupation. (A.R. 280) In a letter dated July 13, 2001, Dr. Palella wrote that he
concluded “in the latter months of 1999 . . . that [Plaintiff] was disabled from his occupation as a
sales manager.” (A.R. 129) Dr. Palella also noted in the July 13 letter that Plaintiff remains
disabled and was unlikely to be able to return to gainful employment in the foreseeable future.
(AR. 129)

3. Plaintiff's Records from Dr. Sage

Plaintiff saw Dr. Sage on June 15, 2000. Dr. Sage performed a splenectomy on Plaintiff.
On July 7, 2000, Dr. Sage noted that Plaintiff was well-healed from his surgery and that he could
return to work on July 24, 2000. Dr. Sage later wrote and indicated that this return to work date
was “written in error.” (A.R. 126) Dr. Sage explained: “My intent was to inform the patient that
as far as the acute problems of the motor vehicle accident, I thought that he was returning to his
baseline level and I. . . was turning him over to the chronic care of the rheumatologist and
podiatrist. . . . I did not feel that his episode related to the [motor vehicle] trauma was in itself an
impediment for his returning to work.” (A.R. 126)

On August 14, 2000, Dr. Sage noted that Plaintiff's pain had returned under his rib cage
and flank, and it worsened with movement. (A.R. 208) Dr. Sage also noted on September 22,
2000, that Plaintiff's pain increased with food. (A.R. 212)

IL. DISCUSSION

A. STANDARD OF REVIEW


Plaintiff ceased actively working for Abbco on September 7, 1999. On or about January
10, 2001, Plaintiff first notified Continental of his claim for benefits under the Plan, claiming
disability beginning September 7, 1999.' Plaintiff's claim form seeks coverage for total
disability as a result of “rheumatoid arthritis — joint surgery — accident motor veh. 6-3-00.” After
receiving medical documentation in support of Plaintiff's claim, Continental notified Plaintiff on
May 4, 2001 that his claim had been rejected. Plaintiff, acting through his attorney, filed a
formal appeal of the claim on August 2, 2001, that included additional supporting
documentation. On September 24, 2001, Continental informed Plaintiff that his appeal was
denied. On November 20, 2001, Plaintiff submitted further documentation supporting his
claimed disability. Continental considered this documentation and reiterated the denial of the
claim on January 2, 2002. This is the final claim denial that Plaintiff received.

The Administrative Record reveals that on or about January 23, 2002, Lisa Welsh in the
Illinois Department of Insurance contacted Continental to query whether Plaintiff's records had
been reviewed by an independent medical examiner. (A.R. 043.) On January 25, 2002, Ms.
Welsh sent Continental a letter indicating that the department was “unable to close [their] file”
because “the information . . . does not confirm that Mr. Zamecnik was not disabled from
September 8, 1999 to December 1, 1999.” (A.R. 033.) Thereafter, Continental submitted the
record to an independent medical analysis performed by Dr. Eugene Truchelut, M.D. In a report
dated February 12, 2002, Dr. Truchelut concluded that “the medical records as submitted do not

clearly indicate a continuous functional impairment subsequent to 9/6/99.” (A.R. 029.)

'The claim form is dated October 15, 2000, but the Plaintiff does not contest that
Continental did not receive it until January 10, 2001.

3


kneeling, crouching, bending, twisting, or reaching. (A. R. 282)

A. THE BASIC TERMS OF THE DISABILITY INSURANCE PLAN

As an active, full-time employee of Abbco, Plaintiff was a participant in Abbco’s long-
term disability insurance plan (“the Plan”). Abbco established the Plan with Defendant
Continental Casualty Company in 1988. Under the Plan, an employee experiences “total
disability” when the employee is:

(1) continuously unable to perform the substantial and material duties of his regular
occupation;

(2) under the regular care of a licensed physician other than himself; and

(3) not gainfully employed in any occupation for which he is or becomes qualified by
education, training or experience.

(A.R. 12.) An employee seeking to make a claim under the Plan must provide to Continental
“written notice of claim . . . within 30 days after the loss begins or as soon as reasonably
possible.” (A.R. 16.) Once Continental receives “written notice of claim”, the Plan requires that
it furnish claim forms within 15 days. If Continental does not provide these claim forms, “the
claimant will be considered to have met the requirements for written proof of loss” if the notice
of claim “describes the occurrence, extent and nature of the loss.” (Id.) The Plan further requires
the employee to provide “written proof of loss .. within 90 days after the end of a period for
which [Continental is] liable.” (Id.) If it is not possible to give the proof within 90 days, “the
claim is not affected if the proof is given as soon as reasonably possible. Unless the Insured
Employee is legally incapacitated, written proof must be given within 1 year of the time it is
otherwise due.” (Id.)

B. PLAINTIFF’S CLAIM UNDER THE PLAN



IN THE UNITED STATES DISTRICT COURT 00
FOR THE NORTHERN DISTRICT OF ILLINOIS MESES
EASTERN DIVISION CKETED
SEP 8 2004
GARY ZAMECNIK

No. 03 C 2664 WU? - 9 d3$
Plaintiff,

HONORABLE DAVID H. COAR
ve

ABBCO, INC. ERISA PLAN, CNA
INSURANCE Co., & ABBCO, Inc.
Defendant.

wee eee

MEMORANDUM OPINION AND ORDER

This is an action under the Employee Retirement Income Security Act (“ERISA”), for
payment of disability insurance benefits. Plaintiff Gary Zamecnik (“Zamecnik” or “Plaintiff’)
claims that Defendant Continental Casualty Company (“Continental”) wrongfully denied benefits
to him under ERISA, 29 U.S.C. §1132(a}(1)(B). The parties have filed cross-motions for
summary judgment, For the reasons set forth in this opinion, the Plaintiff's Motion for Summary
Judgment is denied and the Defendant’s Motion for Summary Judgment is granted.

1. FACTS

Plaintiff Zamecnik was an employee of Defendant Abbco, Inc. He began working for
Abbco in April 1969. Plaintiff assumed the position of sales manager at Abbco in 1975. He
occupied that position until his employment with Defendant ceased on September 6, 1999.
According to Abbco, the sales manager position requires one hour of standing, two hours of
walking, and six hours of sitting in an average nine hour day. (A.R. 281) The position does not

involve lifting or carrying, nor does it require use of extreme postures such as stooping, climbing,

| ct


vad

impossible to conclude that Plaintiff was continuously unable to perform the duties of his
occupation on the date he ceased working.

The irony in this case is that by the time Plaintiff filed his disability claim, well over a
year after the alleged onset of disability, there can be no doubt that Plaintiff was totally disabled
as that term is defined in the plan. Unfortunately for Plaintiff, there is simply no credible proof
that he was totally disabled at the time he stopped working for Defendant. For this reason, the
Defendant is entitled to summary judgment in its favor.

CONCLUSION
For the reasons set forth above, the Court denies Plaintiff's Motion for Summary

Judgment and grants Defendant’s Motion for Summary Judgment.

sua) Qh.
David H. Coar
United States District Judge

Enter:

Dated: September 2, 2004

12