that he had personally conducted a neurological examination of
Sperandeo. (AR 124).

After thoroughly reviewing the medical evidence presented by
Speradeo, the Court concludes that he is not “disabled” by a
neurological-related condition. While providing some evidence that
he suffered from post concussive syndrome, the medical evidence
does not support the conclusion that it made Sperandeo continuously
unable to perform the material and substantial duties of his job.
Conversely, several neurologists and the psychologist believed that
Sperandeo could return to work, and the driving test demonstrated
that Sperandeo was capable of driving without limitation. Dr.
Randolph concluded that Sperandeo was exaggerating his symptoms and
exerting little effort on his diagnostic tests, which is consistent
with the EMG test results. Dr. Lewis’ letter was contrary to the
driving test results and not supported by the other medical
opinions and evidence presented. Thus, Sperandeo does not suffer
from a “disability” that continuously limits his ability to perform
the substantial and material aspects of job as a _ sales
representative, and is not entitled to benefits on these grounds.

2. Shoulder Injury

Sperandeo was originally diagnosed with a shoulder strain
immediately following his accident, and he began therapy for his
shoulder in early June. (AR 341). In July 2001, Dr. Zoellick,

Sperandeo’s primary orthopaedist, determined that he had a rotator


absence of medical findings to support a

condition exists that would render you

continuously unable to perform your regular

work activity. (AR 006).
The Committee also found that the variation in diagnosis and
evaluation between the medical professionais further compromised
the validity of Sperandeo’s complaint.

II. DISCUSSION
Both parties moved for summary judgment. The summary judgment
standard is well-established and is appropriate if “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. Civ. P. 56(c).
A. Proper Party
Sperandeo named both CNA and Lorillard as Defendants. It is

well-settled under Seventh Circuit law that in actions to recover
benefits under ERISA, 29 U.S.C. § 1132(a) (1) (B), “only the plan as
an entity is the proper party to sue.” Witowski v. Tetra Tech,
Inc., 38 F.Supp.2d 640, 644 (N.D. Ill. 1998), citing Jass v.
Prudential Health Care Plan, Inc., 88 F.3d 1482, 1491 (7th Cir.
1996). Thus, Lorillard, as Sperandeo’s employer, is not the proper
party to this action. Further, Sperandeo acknowledges that

Lorillard is not the proper party. (Pl. Resp. Br. at 11).


insured has been advised with the requisite clarity that the
employer and insurer have discretion to deny claims.” Id.

The use of discretionary authority must be clear because
“employees are entitled to know what they’re getting into, and so
if the employer is going to reserve a broad, unchanneled discretion
to deny claims, the employees should be told about this, and told
clearly.” Herzberger, 205 F.3d at 333. Here, it cannot be said
that the participants have been advised with requisite clarity that
Lorillard and CNA have the discretion to deny claims. As a result,
the Court concludes that de novo review is appropriate.

C. Denial of Benefits

De novo review requires that the court look beyond the
reasonableness of CNA’s decision to determine whether CNA’s
decision to deny Sperandeo’s application for disability benefits
was correct. See Postma v. Paul Revere Life Ins. Co., 223 F.3d
533, 540 (7th Cir. 2000). To qualify for benefits, a participant
must have a “physical or mental impairment to such a degree of
severity that [he is] continuously unable to perform the Material
and Substantial Duties” of his job, which is defined as “necessary
functions . . . which cannot be reasonably omitted or altered.”
(POL 024). Further, the participant must provide “objective
medical evidence” supporting his condition.

In evaluating the disability application, the Court first

considers the Physical Demands Analysis (the “PDA”) that Lorillard

- 10 -


benefits. However, the Summary Plan Description and Certificate of
Insurance (the “Certificate”) provide that CNA has discretionary
power to determine benefits eligibility.

The Summary Plan Description provides that CNA maintains
discretionary authority to “determine [the insured’s] eligibility
for and entitlement to benefits under the plan to interpret the
terms and provisions of any insurance policy issued in connection
with the Plan.” (POL 026). It also clearly states that it “does
not constitute a part of the Plan, nor of any insurance policy
issued in connection with it.”

An attachment to the Certificate states that the “plan
administrator and other plan fiduciaries have discretionary
authority to determine Your eligibility for and entitlement to
benefits under the Policy.” It also provides that the “plan has
delegated sole discretionary authority to Continental Casualty
Company to determine Your eligibility for benefits and to interpret
the terms and provisions of the Policy.” (POL 025). The
Certificate also expressly states that “it is not the policy. It is
merely evidence of insurance provided under the Policy.”

CNA contends that the discretionary language in the
Certificate is either part of the Plan itself, or alternately is
incorporated into the Plan. Sperandeo responds that the
discretionary language at issue does not grant discretionary

authority because it is not contained in the Plan.


Accordingly, Defendants’ Motion for Summary Judgment as_ to
Lorillard is GRANTED.
B. Standard of Review

Section 1132(a)(1)(B) of ERISA authorizes courts to review a
plan administrator’s eligibility decision regarding an employee
benefit plan. The parties disagree on the proper standard of
review for the denial of benefits in this case. CNA argues that
the proper standard is arbitrary and capricious, while Sperandeo
contends that it is de novo.

The Supreme Court has previously set forth the basic rule for
reviewing a denial of benefits under ERISA. In Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989), the Supreme Court
explained that the standard is de novo review “unless the benefit
plan gives the administrator or fiduciary discretionary authority
to determine eligibility for benefits or to construe the terms of
the plan.” When a benefit plan affords discretionary power to the
plan administrator, the proper standard is arbitrary and
capricious. See Wilczynski v. Kemper Nat’l Ins. Cos., 178 F.3d
933, 934 (7th Cir. 1999). However, if a plan’s administrator
intends to exercise discretionary power, the employees must be told
in a clear manner. See Herzberger v. Standard Ins. Co., 205 F.3d
327, 332-33 (7th Cir. 2000).

The Plan at issue here contains no language indicating that

CNA holds discretionary power to determine eligibility for


Life Ins. Co. of Amer., 294 F.Supp.2d 980 (N.D. Ill. 2003), argues
that discretionary language may control. In Crespo, the Court held
that the policy granted the plan administrator discretionary
authority because the “combined language of the Certificate Section
and the ERISA section of the Policy use[d] the term ‘discretion,’
or a variation thereof, five times and clearly inform[ed] the
insured of Unum’s discretion.” Id. at 990. Further, the policy
also included an ERISA section that “expressly vest[ed] in Unum the
broadest discretion permissible under ERISA.” Id.

This Plan is distinguishable because the Certificate expressly
states that it is “not the policy. It is merely evidence of
insurance provided by the policy.” Further, the Plan is silent and
the ERISA section clearly states that it “does not constitute a
part of the Plan, nor any insurance policy issued in connection
with it.” (POL 026). In a similar case, this District concluded
that de novo review was appropriate for the denial of benefits.
See Mullally v. Boise Cascade Corp. Long Term Disability, 2005 WL
66070 (N.D. Ill. 2005). In Mullally, the certificate contained a
discretionary statement and also specified that “it was not the
policy and is merely evidence of the policy.” Id. at *5. The court
held that “based upon the inconsistency between the clear and
specific limiting language in the Certificate and the language in

the Policy regarding the Certificate, it cannot be said that the


Oy

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS F | L E D
EASTERN DIVISION

MAR 4 - 2065
DENNIS SPERANDEO,
JUDGE HARRY 0. LEINENWEBER
Plaintiff, U.S. DISTRICT COURT JUDGE
Case No. 04 C 3214
v.
LORILLARD TOBACCO CO. & Hon. Harry D. Leinenweber
CONTINENTAL CASUALTY COMPANY
a/k/a CNA,

Defendants.

MEMORANDUM OPINION AND ORDER

This case arises from Continental Casualty Co. a/k/a CNA’s
(hereinafter, “CNA”) denial of Plaintiff Dennis Sperandeo’s
application for disability benefits under a group employee benefit
plan. Before the Court are the parties’ cross-motions for summary
judgment. For the following reasons, Plaintiff’s motion is denied
and Defendants’ motion is granted.

I. BACKGROUND

Sperandeo was employed as a sales representative by Defendant
Lorillard Tobacco Company (hereinafter, “Lorillard”) until May 7,
2001, when he was injured in an automobile accident. Sperandeo
went to the emergency room and was diagnosed with a concussion, leg
injuries, and a left shoulder strain, but was discharged the same
day. He also complained of dizziness and imbalance. Sperandeo
stopped working on the date of the accident through January 2,

2002, and then returned to work for two days. Sperandeo ceased


neurological problems, and received inconsistent medical opinions.
The pertinent medical evidence is as follows.

Dr. Glista and Dr. Wolf both conducted neurologic examinations
and diagnosed Sperandeo with “post concussive syndrome.” Dr.
Glista concluded that there was likely no “cognitive damage and
reported a normal neurological exam.” (AR 472). He indicated that
he hoped Sperandeo would make some progress in returning to work.
Dr. Wolf did not place any limitations on Sperandeo’s return to
work. (AR 370)

Dr. Fiducia, a psychologist, found that Sperandeo’s
“performance on a test of effort and motivation fell within normal
limits” and suggested that he should “consider a vocational
counselor to facilitate a successful transition back to work.”
(AR 074). Dr. Fiducia noted that Sperandeo “appear[ed] to believe
that he [was] handicapped by his poor health” and that Sperandeo’s
“high degree of concern and focus on his physical functioning/
somatic symptoms” was concerning because “from an emotional
perspective ([Sperandeo displayed] some mild depressive
symptomatology.” (AR 380-81).

In April 2002, Sperandeo’s Behind the Wheel Evaluation
indicated that he was a good candidate for driving with no
restrictions. (AR 0322). In June 2002, an EMG test revealed that
his balance was mildly abnormal. However, a posturography test

displayed inconsistent results, finding that Sperandeo had severely

-12-


completed regarding Sperandeo’s sales representative position.
(AR 481-482). According to the PDA, during a typical day, a sales
representative spends a substantial portion of the day driving and
standing. He also sits for approximately 2 hours and walks for
about 1 hour. (AR 481). A sales representative lifts cases of
cigarettes from floor to ceiling that typically weigh 21 pounds,
with a maximum of 38 pounds, 5 times per day, and lifts a counter
display with a maximum weight of 11 pounds from floor to counter
once per day. A sales representative carries a sales bag weighing
a maximum of 20 pounds. Finally, a sales representative moves or
assembles floor displays that weigh 75 pounds once a day from the
floor to a point of termination on the floor (floor to floor, not
floor to ceiling or counter). (AR 482).

Sperandeo’s application claimed that his “shoulder, back,
neck, head and ear” prevented his return to work, and sought
disability benefits. (AR 470). Sperandeo has presented medical
evidence relating to a claimed neurological condition and a
shoulder injury. The Court reviews each claim in turn.

1. Neurological Condition

Sperandeo’s application states that head and ear injuries
(specifically described in the briefs as headaches, disequilibrium,
lack of concentration, and memory focus problems) prevent him from

returning to work. Sperandeo visited numerous doctors regarding


CNA’s arguments fail. The title page of the Certificate
explains that the “following pages provide a complete description
of the provisions of your certificate” and the “discretionary
authority” provision appears on a page following the Certificate
title page. Thus, the provision is part of the Certificate, and
not the Plan itself.

As to the incorporation argument, CNA correctly asserts that
the Plan states that it will “deliver certificates of insurance to
the Employer for issuance to each Insured Employee. The
Certificates will describe the benefits, to whom they are payable,
the policy limitations and where the policy may be inspected.”
(POL 008). However, this language does not incorporate the
Certificate into the policy, but rather describes the contents of
the Certificate.

In Wolff v. Continental Cas. Co., 2004 WL 2191579(N.D. Ill.
2004), the court quickly dismissed the argument that the policy’s
language incorporated the certificate. The Court explained that
the certificate “itself clearly state[d] that it is ‘not the
policy. It is merely evidence of insurance provided under the
policy.’” See id at *10. The Court agrees and concludes that the
Plan does not incorporate the Certificate.

The central issue here is thus whether the Certificate itself
can properly grant discretionary authority to the = plan

administrator when the Plan is silent. CNA, citing Crespo v. Unum


that because multiple physicians concluded “that [Sperandeo’s]
complaints of cognitive impairment and symptoms of imbalance and
memory loss [were] highly exaggerated and not consistent with the
clinical findings regarding the extent of [his injuries],”

insufficient evidence existed to show that he was unable to perform

the duties of his occupation. (AR 188). CNA rejected Sperandeo’s
claim.

Sperandeo appealed. After further review, CNA denied
Sperandeo’s appeal on January 28, 2003. (AR 005-006). In its

denial, CNA noted that it reviewed medical information from fifteen
doctors, operative reports, MRI’s, x-rays, emergency room reports,
physical therapy notes, Behind the Wheel Evaluation, and various
other medical evidence and self reported symptoms. (AR 005). The
Appeal Committee found that the medical evidence provided “little
to no explanation” for his continued self-reported symptoms, and
concluded there was:

minimal findings on physical/clinical
examinations(s) and testing results that are
not commensurate with any condition(s) that
would reasonably be expected to cause
functional impairment and that would
continuously preclude you from your work
activity from a physical and/or mental/nervous
standpoint and therefore you would = not
continue to meet the definition of “Total
Disability” as defined in the terms of the
contract.

Although you continue to seek treatment for
your condition, a diagnosis and continued
medical treatment in and of themselves further
do not document “Total Disability”. . . in the

-4-


cuff tear in his left shoulder. The next month, Sperandeo had left
rotator cuff repair surgery and acromioplasty surgery. (AR 214-
235). Dr. Zoellick continually monitored Sperandeo’s progress.
After a July 1, 2002 reexamination, Dr. Zoellick conclusively
determined that Sperandeo “has reached maximal medical improvement
from his work related injury.” Dr. Zoellick placed the following
permanent maximum weightlifting restrictions on Sperandeo — lifting
a maximum of 35 pounds, 5 pounds overhead lifting, and overhead
work as tolerated. See id. Dr. Zoellick also concluded that
Sperandeo could return to work light duty and discharged Sperandeo
from his care. (AR 479). Later, Sperandeo visited Dr. Visotsky,
another orthopaedic surgeon, for a second opinion on his shoulder.
Sperandeo had a second shoulder surgery on October 10, 2002.
(AR 154).

The Court next addresses whether Sperandeo’s physical injury
and restrictions continuously impaired his ability to perform the
substantial and material duties of his job. As noted, material and
substantial duties are those “necessary functions . . . which
cannot be reasonably omitted or altered.” (POL 024). According to
the PDA, a sales representative’s primary material and substantial
duties are driving, walking, sitting, and standing. There is no
medical evidence that Sperandeo’s shoulder injury impairs his

ability to perform these tasks.


whatsoever (it is described as moving from floor to floor, and not
to ceiling or counter), but rather potentially pushing or pulling.
Sperandeo only has weight restrictions on lifting. Further, even
if a sales representative would at some point need to lift a
portion of the display to assemble it, there is no evidence to
suggest that the piece would weigh more than 35 pounds. Further,
because this duty only occurs 1 time per 8-hour day it likewise
cannot be said to be a substantial duty. Finally, Sperandeo would
not be unable to complete this duty on a continuous basis, even if
it were a material and substantial duty.

Accordingly, the Court finds that Sperandeo does not have a
physical injury that precludes him from performing the material and
substantial duties of his position as a sales representative.
Thus, Sperandeo is not “disabled” under the Plan and not entitled
to benefits.

III. CONCLUSION

For the foregoing reasons, the Defendants’ Motion for Summary

Judgment is GRANTED, and Plaintiff’s Motion for § ary Judgment is
va
DENIED.

IT IS SO ORDERED.

L
- flak. J any OE

-17-


accrue to insured participants who are “disabled.” During the 180-
day Elimination Period and the 24 months following an injury, a
participant is “disabled” if the participant lacks gainful
employment and has a sickness or injury that “causes physical or
mental impairment to such a degree of severity that You
are . . . continuously unable to perform the Material and
Substantial duties of Your Regular Occupation.” (POL 013). After
24 months of benefits payments, the Plan defines “disability” as
having a “physical or mental impairment to such a degree of
severity that You are . . . continuously unable to engage in any
occupation for which You are or become qualified by education,
training or experience.” (Id.).

To qualify for benefits under the Plan, a participant must
submit “objective medical findings” that demonstrate the severity
of the participant's condition, including “tests, procedures, or
clinical examinations standardly accepted in the practice of
medicine.” (POL 020).

C. CNA’s Denial of Sperandeo’s Application

On October 4, 2002, CNA denied Sperandeo’s claim. (AR 187-

188). In its letter, CNA stated that it performed an exhaustive
review of the medical information supplied by Sperandeo - Dr.
Fiducia (Psychologist), Dr. Glista (Neurologist), Dr. Zoellick

(Orthopaedist), Dr. Moore (Neurologist), Dr. Lewis (Internal

Medicine), and Dr. Randolph (Neuropsychologist). CNA determined


working on January 4, 2002. CNA provided benefits to Sperandeo
from November 3, 2001 (following the 180-day Elimination Period
from the accident) until January 2, 2002, when Sperandeo returned
to work.
A. Sperandeo’s Application

On July 10, 2002, Sperandeo submitted a claim to CNA for
disability benefits dating back to January 2, 2002. He stated that
his “shoulder, back, neck, head and ear” injuries prevented him
from returning to his job. (AR 470). In support of his original
application and subsequent appeal, Sperandeo submitted medical
evaluations from multiple doctors, operative reports, MRIs, x-rays,
emergency room reports, physical therapy notes, and a Behind the
Wheel Evaluation. In total, fifteen doctors examined Sperandeo,
including orthopaedic surgeons who evaluated his shoulder pain (Dr.
Zoellick and Dr. Visotsky) and several doctors who evaluated his
neurologic-related issues (Dr. Randolph (neuropsychologist), Dr.
Moore (otology-neurotology), Dr. Glista (neurologist), Dr. Wolf
(neurologist), Dr. Fiducia (psychologist), and Dr. Hain
(otoneurologist)). Sperandeo’s internal medicine physician, Dr.
Lewis, also submitted a letter on his behalf. See Section II.C.,
infra, for a description of the pertinent medical evidence.

B. The Plan
The Plan is a group employees benefit plan as defined under

29 U.S.C. § 1002(1). Under the Plan, long term disability benefits


impaired balance. The report noted that the likely cause for this
pattern was “aphysiologic,” which a technician explained typically
indicates the exaggeration of symptoms of dizziness and imbalance.

Dr. Randolph examined Sperandeo in June 2002, and concluded
that Sperandeo did not appear to be applying full effort during
memory testing. Dr. Randolph reported that the results of a Word
Memory Test exhibited an “extreme exaggeration or response bias.”
He also concluded that on the “current neuropsychological
evaluation, Mr. Sperandeo exhibited clear-cut evidence of an
attempt to feign or exaggerate cognitive impairment, which
invalidates the remainder of the standardized testing done.”
(AR 456-457).

Finally, Dr. Lewis, Sperandeo’s internal medicine doctor for
eleven years, submitted a letter to CNA on August 6, 2002. Dr.
Lewis stated that based on the evaluations of other doctors, “I
feel it is not appropriate for [Sperandeo] to be working in his
current occupation, because of the need to think clearly, do heavy
lifting and be able to drive a car. I feel that he is unsafe
because of dysequilibrium, shoulder and back pain.” (AR 145). He
also concluded that Sperandeo suffered from “left shoulder pain,
lumbar back pain, post traumatic dysequilibrium, and _ post
concussion syndrome.” Dr. Lewis did not provide medical evidence

(such as test results or charts) to support his letter or indicate

-13-


The PDA also indicates that a sales representative must lift
cases of cigarettes from floor to ceiling 5 times per day. The PDA
provides that cigarette cases typically weigh 21 pounds, with a
maximum weight of 38 pounds. Sperandeo is permitted to lift up to
35 pounds. Therefore, he could clearly lift the typical case of
cigarettes. The PDA does not suggest how often, if ever, the
cigarette cartons actually weigh the maximum of 38 pounds, rather
than the usual 21 pounds or some weight between 21 and 35 pounds.
Only the absolute heaviest cases would exceed his weight
restriction by 3 pounds. Without evidence of how often he is
called upon to lift these “heaviest cases,” this activity cannot be
considered to be a substantial duty. Thus, the objective medical
evidence in the record does not demonstrate that Speradeo could not
perform this material and substantial task.

A sales representative must also lift a counter display that
has a maximum weighs of 11 pounds from floor to counter. This does
not involve overhead or lifting or lifting from floor to ceiling.
Even at the maximum weight, the counter displays are much lighter
than Sperandeo’s weight restriction. Therefore, there is no
evidence that Sperandeo’s shoulder lifting restriction prevented
him from performing this material and substantial duty of the job.

Once a day, a sales representative must move a floor display
weighing 75 pounds from floor to floor, or assemble it. (AR 482).

According to the PDA, this duty does not involve any lifting