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October 5, 2001


The opinion of the court was delivered by: Katz, Senior District Judge.


Now before the court are cross-motions for summary judgment in the above-captioned action filed under the Employee Retirement Income Security Act of 1974, 29 U.S.C.A. § 1001 et seq. Because the court finds that the insurance company's decision to deny benefits was arbitrary and capricious, the plaintiff's motion for summary judgment is granted and the defendant's motion for summary judgment is denied.

I. Background

Plaintiff Cheryl Dorsey brings this action against the defendant, Provident Life and Accident Insurance (Provident), following Provident's denial of her claim for long-term disability (LTD) benefits. The plaintiff applied for benefits on the grounds that she suffered from fibromyalgia, a disorder characterized by diffuse musculoskeletal pain, stiffness, paresthesia, nonrestorative sleep and easy fatigability. Harrison's Principles of Internal Medicine 1706-07 (Kurt J. Isselbacher, et al., eds., 13th ed. 1994). Fibromyalgia is a rheumatological disorder that manifests itself through a variety of symptoms including,

generalized aching and stiffness of the trunk, hip and shoulder girdles. Other patients complain of generalized aching and muscle weakness. Patients perceive that their joints are swollen; however, joint examination is normal. . . . Patients complain of exhaustion and wake up tired. They also awake frequently at night and have trouble falling back asleep. Symptoms are made worse by stress or anxiety, cold, damp weather, and overexertion. . . . Disorders commonly associated with fibromyalgia include irritable bowel syndrome, irritable bladder, headaches (including migraine headaches), and dysmeorrhea.

Id. at 1706. Fibromyalgia is diagnosed by its clinical manifestations, and, in particular, manifestation of tender sites which "are exquisitely more tender than adjacent areas." Id. Joint and muscle examination is normal and there are no laboratory abnormalities associated with the disorder. Id. While some patients respond well to treatment, "others continue to have chronic disease which may be only partially relieved, if at all." Id.

The history of plaintiff's claim for benefits is as follows.*fn1 Dorsey worked as Director of Sales and Marketing at Zurich Payroll Solutions until she became ill in February, 1999. App. to Def's Summ. J. Mot. at PLACL00004.*fn2 In August, 1999, she submitted an application for long term disability benefits to defendant Provident Life and Accident Insurance. App. at PLACL00001-55. Dorsey's application stated that she suffered from severe migraines and cervical strain, and her primary care physician indicated that she suffered from "severe fibromyalgia, severe migraines, [and] cervical strain." App. at PLACL00006. On August 24, 1999, case manager Karen Mathis, a registered nurse (RN), spoke with the plaintiff and the plaintiff's employer, as well as reviewed her medical records. App. at PLACL00060-61. In an internal memo, Mathis noted that an independent doctor had examined the plaintiff; that she was receiving short-term disability payments, and that her employer described her job as requiring some travel. Id. Mathis recommended gathering more medical information from Dorsey's primary care physician, rheumatologist, and physical therapist. Id.

On September 29, 1999, RN Julie Kennelly conducted a second review of Dorsey's claim. App. at PLACL00071-72. In her report, titled "DCM review," Nurse Kennelly discussed the medical records submitted by the plaintiff and noted that many doctors had diagnosed Dorsey with fibromyalgia. Id. Even though the doctors were unanimous in their diagnosis, the Kennelly concluded that there was not enough data to support their conclusions stating:

[a]lthough several physicians give the insured the diagnosis of fibromyalgia none of them list all the trigger points or other findings of the syndrome. Depression is usually associated with this diagnosis, however, the insure [sic] denies any depression and no diagnosis of such is given. Due to lack of medical support the diagnosis does not appear conclusive. . . . Duration of disability cannot be made at this time, as there is not enough information to support insured's inability to perform her job without accommodations."

App. at PLACL00071-72. Kennelly then recommended that Provident obtain all the available medical records and review the claim again.

On October 8, 1999, Dr. David Chesner, Dorsey's rheumatologist, submitted a detailed letter to Provident on behalf of Dorsey. Dr. Chesner gave a thorough description of the plaintiff's medical condition and indicated that she was seeing a psychologist for the depression caused by her illness stating:

[A m]usculoskeletal examination revealed severe fibromyalgia trigger points present diffusely throughout the axial and appendicular skeleton. . . . Cheryl Dorsey is completely and totally disabled from seeking gainful employment at this time. This is secondary to severe fibromyalgia syndrome with chronic fatigue and cognitive impairment. There is no cure for fibromyalgia, and therefore the therapies are somewhat limited. Her pain level has persisted despite numerous attempts with narcotic analgesics and antidepressants. Her prognosis for recovery is extremely poor.

App. at PLACL00465-67.

A physical therapist then examined the plaintiff at Provident's request and conducted a functional capacity evaluation (FCE) on November 18, 1999. App. at PLACL00215. According to the therapist, the plaintiff's performance during this evaluation placed her in the light category of work. However, the therapist noted that it was "questionable" whether the plaintiff gave her full effort throughout the entire test. App. at PLACL00210-15. Provident conducted video surveillance of the plaintiff for three full days beginning November 17th culminating in a fifteen minute videotape showing the plaintiff driving her children to school as well as walking slowly to and from her car for very brief periods of time.*fn3

On January 10, 2000, Dr. Nancy Beecher, conducted Provident's only physician review of the plaintiff's disability claim. However, it is unclear whether Dr. Beecher reviewed all of the medical records or simply the FCE and surveillance tape,*fn4 and her report only referenced those two sources. App. at PLACL00216-17. Dr. Beecher's report concluded that the plaintiff was capable of performing light physical demand work, App. at PLACL00216-17, and noted that Dorsey was "said to have given less than [a] full effort [on] the evaluation based on grip testing." App. at PLACL00217.

In addition, Pam Perdue, Provident's Rehabilitation Consultant, performed an analysis of the FCE and the plaintiff's job requirements on January 18, 2000. Perdue employed a generic description of Dorsey's job at Zurich and determined that it fell in the medium work category. App. at PLACL00222-30. However, Perdue concluded that the plaintiff could return to her job even though the FCE listed her work capacity as light. Id. Like Dr. Beecher, Perdue relied on the physical therapist's remark that it was "questionable" whether the plaintiff had performed at full capacity during the FCE. App. at PLACLOO229-30.

The claims file at this point included letters from the plaintiff's physicians describing her disorder.*fn5 After performing an electromyography,*fn6 Dr. Sea Hun Kim wrote to Dr. Robert Cherrey, Dorsey's primary care physician, that "[u]pon palpitation of the upper back the patient has an exquisite tender point in both upper trapezius muscles. She also has a tender point on the right rhomboid and also the left middle trapezius in rhomboid muscles." App. at PLACL00024. Dr. James Burke, the plaintiff's neurologist, also wrote to Dr. Cherry that "[Dorsey] continues to have significant tenderness with trigger points over the trapezii, deltoid, cervical paraspinal musculative, and occipital musculature as well as the interscapular region. . . . She does have the clinical symptoms consistent with the diagnosis of fibromyalgia as well." App. at PLACL00426-27. Dr. Burke followed up this letter with another dated April 28, 1999 where he noted that "[t]here are numerous points of exquisite tenderness on palpation along the trapezii, paraspinal muscles, particularly in the interscapular and suprailiac regions as well as in the quadriceps and glutei. . . . I believe that Ms. Dorsey has fibromyalgia." App. at PLACL00409-10. Furthermore, the medical records included a letter from Dr. Stephen Lewis, the independent doctor hired by the plaintiff's short-term disability provider. Dr. Lewis wrote that

Ms. Dorsey's examination is consistent with the diagnosis of fibromyalgia. She has considerable muscular pains without alteration of neurological examination. This disorder may be quite difficult to bring under control. It is usually quite frustrating (as it is to Ms. Dorsey). As she is here in the office, I did not see how she ...

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