Hilderbrand v. Fund
| Decision Date | 16 November 2015 |
| Docket Number | No. 13-3170,13-3170 |
| Court | U.S. District Court — Central District of Illinois |
| Parties | DENNIS HILDERBRAND, Plaintiff, v. NATIONAL ELECTRICAL BENEFIT FUND, Defendant. |
This cause is before the Court on the parties' cross-motions for summary judgment. Because Defendant National Electrical Benefit Fund's (NEBF) denial of benefits was not arbitrary and capricious, NEBF's Second Motion for Summary Judgment (d/e 26) is GRANTED and Plaintiff Dennis Hilderbrand's Motion for Summary Judgment Following Remand and Motion for Sanctions (d/e 22) is DENIED.
The following facts are taken from NEBF's Statement of Undisputed Facts and other evidence in the record.1
The NEBF is a multi-employer employee pension benefit plan within the meaning of Section 3(2) of the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1002(2)). NEBF's Statement of Undisputed Fact No. 1. The NEBF was established pursuant to an agreement between the International Brotherhood of Electrical Workers and the National Electrical Contractors Association providing retirement benefits to participants upon their retirement from the electrical industry. Id. The NEBF is governed by the Plan of Benefits for the NEBF (Plan). Id. at No. 2. Hilderbrand is a participant in the NEBF by virtue of the work he performed in covered employment and is 100% vested. Id. at No. 4.
On October 9, 2002, Hilderbrand (d/o/b October 22, 1958) was injured at work while operating a piece of machinery. See, e.g.,Administrative Record at 60 (d/e 15) (hereinafter cited as "R." and the page number of the Administrative Record). Hilderbrand suffered lacerations on his lower right leg. Id. The lacerations were repaired, but Hilderbrand continued to experience pain in his lower leg. Id.
In November 2004, Hilderbrand had surgery on his leg to release the right peroneal nerve.2 R. 199. The surgery was performed by Dr. Susan Mackinnon, Shoenberg Professor and Chief, Division of Plastic and Reconstructive Surgery, Washington University. Id.
On December 8, 2004, Hilderbrand saw Dr. Mackinnon, who reported that Hilderbrand was "doing well." R. 209. She prescribed him a Lidoderm patch for the dorsal aspect of his foot. She recommended start physical therapy and recommended that he follow up with his pain management physician. Id.
On December 27, 2004, Dr. Mackinnon noted that Hilderbrand was still having some discomfort but that there was nothing more she could offer him from a surgical point of view. R. 211. Dr. Mackinnon recommended that Hilderbrand be evaluated by the pain management team as a candidate for a dorsal column stimulator.3 R. 211.
On January 25, 2005, Hilderbrand saw Dr. Muhammad Munir, Instructor in Anesthesiology, Barnes-Jewish Hospital, Washington University Pain Management Center. R. 213. Dr. Munir noted that, after the surgery, Hilderbrand had relief of his pain in the back of his calf but continued to have persistent pain in the top of his leg and top of his foot. R. 213. Hilderbrand reported that, since the surgery, Hilderbrand "felt a sharp shooting and stabbing pain, like electrical sensation going down on the lateral and top part of his leg and into the foot." Id. Hilderbrand described the pain as an " 8-9/10 at its worst and with electrical sensation to10/ 10." Id. Application of light massage, light touching, cold packs, and a Lidoderm patch provided some relief. Id.
On March 1, 2005, Hilderbrand underwent a psychological evaluation. R. 217. During the evaluation, Hilderbrand complained of pain and reported that activity, standing, and walking increased his pain. R. 217. He expressed an interest in returning to work. R. 219.
On August 1, 2005, Hilderbrand saw Dr. Munir regarding back pain he was experiencing. Dr. Munir did not know the cause of Hilderbrand's "back injury." R. 224.
On November 9, 2005, Hilderbrand saw Dr. Robert Swarm, Chief, Clinical Pain Management, Barnes-Jewish Hospital, Washington University Pain Management Center. R. 221. Hilderbrand continued to have significant right lower extremity neuropathic pain. Hilderbrand described right lower leg and ankle pain that was continually present. R. 221. The pain worsened with activity. R. 21. Elevation of the right lower leg gave him some relief, as did rest. Id. In addition to pain, Hilderbrand suffered from episodic swelling. The pain increased with the exposure to cold and with cold weather. Id.
On June 12, 2006, Hilderbrand returned to see Dr. Swarm at the Pain Clinic. R. 226. Hilderbrand complained of pain in the right anterior foot as well as the right anterior and lateral ankle. The pain was always present but worsened by having the foot in a dependent position and with standing and walking. Id. Dr. Swarm found Hilderbrand significantly limited in his ability to walk. R. 226. Hilderbrand used a cane 90% of the time. Hilderbrand estimated his maximum walking distance was 50 yards without having to stop due to pain. Id. He had marked tenderness in the right foot and ankle area. Id. Dr. Swarm noted that: "We discussed that he is able to sit quietly and could do productive work, although he requires periodic elevation of the lower extremity." R. 226. Dr. Swarm's impressions included:
Continued work restrictions: Mr. Hilderbrand is restricted to light duty, sedentary work with allowances for elevation of the right lower extremity. He is able to stand for a maximum of 15 minutes total every 2 hours. Walking is limited to a maximum of 40 yards on a rare basis, and he would need to be able to use a cane.
R. 227. The work restrictions were permanent. Id. Dr. Swarm also found that Hilderbrand was not at a point of maximal medical improvement. R. 227.
On November 27, 2006, Hilderbrand returned to the Pain Center complaining of pain. R. 229. Dr. Swarm again noted Hilderbrand's work restrictions:
Permanent work restrictions resulting from work-related injuries suffered in October 2002: Light duty, sedentary work with allowances for elevation of the right lower extremity. He is able to stand for a maximum of 15 minutes total every two hours. Walking is limited to a maximum of 40 yards on a rare basis, and he would need to be able to use a cane.
On January 19, 2007, Hilderbrand underwent a spinal cord stimulation. R. 232. At a visit to the Pain Center on April 18, 2007, Hilderbrand continued to complain of pain. R. 234. Dr. Swarm indicated a "[f]ailed trial of spinal cord stimulation 1/22/07." Id. Dr. Swarm again noted Hilderbrand's work restrictions:
Permanent work restrictions resulting from work-related injuries suffered in October 2002: Light duty, sedentary work with allowances for elevation of the right lower extremity. He is able to stand for a maximum of 15 minutes total every two hours. Walking is limited to a maximum of 40 yards on a rare basis, and he would need to be able to use a cane.
On July 16, 2007, Hilderbrand returned to the Pain Center complaining of pain in his right lower leg and foot. R. 236. Dr. Swarm noted the same work restrictions as identified on April 18, 2007. Id.
On January 9, 2008, Hilderbrand saw Dr. Jacques VanRyn of Premier Care Orthopedics for a consultation. R. 238. Dr. VanRyn found that Hilderbrand was at maximum medical improvement for his condition—complex regional pain syndrome. R. 240. Dr. VanRyn also found that Hilderbrand "should have permanent restrictions consistent with the recommendation of Dr. Swarm":
These would be sedentary work only, standing for a maximum of 15 minutes/two hours, or one hour per day. Walking should be limited to a maximum of 40 yards on an infrequent basis with the use of a cane, as well as the ability while sitting to elevate the right leg. These restrictions would necessarily remove him from an occupation for which he has had suitable education or training. Thus, re-education towards a job that he could do on a sedentary basis would be necessary. I do not feel that a functional capacity evaluation will be of any further value in assessing the case.
On March 29, 2004, Hilderbrand filed an application for disability benefits with the Social Security Administration alleging disability beginning October 9, 2002. R. 97. On April 18, 2007, Administrative Law Judge Alice Jordan found Hilderbrand "disabled" within the meaning of the Social Security Act from October 9, 2002 through December 8, 2004. R. 91-111. ALJ Jordan found that medical improvement occurred as of December 9, 2004, following Hilderbrand's recovery from a surgical procedure to release the peroneal nerve. R. 104.
ALJ Jordan concluded that, beginning December 9, 2004, Hilderbrand had the residual functional capacity to perform work that: required the ability to lift or carry up to 10 pounds occasionally or frequently and that accommodated the use of a hand-held device (a cane) for assistance with ambulation; allowed sitting for 6 to 8 hours with the accommodation to elevate the leg as needed; required no more than 2 hours of standing or walking with the use of a hand-held device; required no climbing or crawling, and only occasional balancing, crouching, or kneeling; and required noexposure to hazards. R. 105. In making the residual functional capacity determination, ALJ Jordan considered medical records as recent as November 27, 20064, as well as Hilderbrand's testimony at the hearing that he thought he could work if his needs, including elevating his leg, were accommodated. R. 106-09. ALJ Jordan noted that Hilderbrand could not perform the full range of sedentary work. R. 110. Therefore, the ALJ asked the vocational expert whether jobs existed in the national economy for a person with claimant's age, education,...
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