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Torrado v. Kimberly-Clark Corp.

March 29, 2007

EVELYN A. TORRADO PLAINTIFF
v.
KIMBERLY-CLARK CORPORATION PENSION PLAN DEFENDANT



The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge

ORDER

Pending are Plaintiff's and Defendant's Motions for Judgment on the Record.*fn1

Defendant responded to Plaintiff's motion,*fn2 but Plaintiff did not respond to Defendant's motion.

This is an ERISA claim for benefits under 29 U.S.C. § 1132 (a)(1)(b). Plaintiff is seeking long-term disability benefits under a pension plan sponsored by her former employer, Kimberly-Clark Corporation ("Kimberly-Clark"), and implemented by the Kimberly-Clark Trust Committee ("Trust Committee").

Plaintiff applied for permanent and total disability benefits in April 2004*fn3 and her application was denied May 6, 2004.*fn4 Plaintiff appealed, was denied a second time, and asked for an opportunity to submit more information.*fn5 The Trust Committee preformed a third review of Plaintiff's medical information and denied her request again.*fn6 Plaintiff filed complaint in December 2005.*fn7

I. Background

Plaintiff worked for Kimberly-Clark as a technician. She was hired in September 1981, and was 40 years old when she was placed on short-term disability on October 7, 2003.*fn8

Throughout her career with Kimberly-Clark, Plaintiff performed a medium level job, i.e., she was required to occasionally lift up to 45 pounds; to push, climb, pull, reach above her head, bend, stoop, and stand during a 12-hour shift.*fn9

Plaintiff was treated for her physical problems by three different physicians: Dr. Lander Smith, Dr. Robert McCarron, and Dr. Bruce Safman. Dr. Smith is Plaintiff's family doctor and Drs. McCarron and Safman are orthopedic specialists. From September 2002 through March 2004 the treatment she received from these physicians overlapped. In spite of the overlap, the doctors' treatment will be discussed individually.

Plaintiff's disabling physical problems started after a car accident in July 2002. A week after the accident, she saw Dr. Smith complaining of back and neck pain. She continued seeing Dr. Smith until September 2002.*fn10

Plaintiff returned to Dr. Smith in January 2003 with complaints about pain in both feet, and saw him again in September 2003, after being involved in a second car accident. She reported increased back pain since the second accident.*fn11 She was last seen by Dr. Smith in March 2004. During the course of his treatment, Dr. Smith referred Plaintiff first to Dr. McCarron and then to Dr. Safman.

Dr. McCarron first treated Plaintiff on September 25, 2002. He ordered diagnostic studies which showed a bulging disc at the L4-L5 level.*fn12 In March and April 2003, Plaintiff began reporting pain and numbness in her feet and hands.*fn13 Additional tests revealed bilateral carpal tunnel syndrome and tarsal tunnel.*fn14 Dr. McCarron performed surgery on both tarsal tunnels in May 2003, and on the left carpal tunnel in July 2003.*fn15 Her symptoms improved for a short time, but, by the beginning of 2004, chronic pain returned to her hands and feet. On February 2, 2004, Dr. McCarron completed a disability report that limited Plaintiff to light work, and stated that her physical restrictions were permanent.*fn16

The limitations assigned by Dr. McCarron matched the results of Plaintiff's Functional Capacity Evaluation. This evaluation confirmed that Plaintiff gave a consistent and reliable effort during the evaluation. After the tests, she was assigned the following physical limitations:

no lifting over 25 pounds; no continuous standing for more than 45 minutes, and no standing over 4 hours in an 8 hour workday.*fn17 On March 19, 2004, Dr. McCarron released Plaintiff to the Dr. Safman's care.*fn18

Plaintiff started seeing Dr. Safman in January 2003 for foot pain and numbness.*fn19 While she reported improvement of her neck and back pain, the symptoms in her feet had increased, with significant numbness and burning on her foot's surface.*fn20 She also told Dr. Safman that she was experiencing the same symptoms in her hands.*fn21 By March 2004, Dr. Safman diagnosed Plaintiff with fibromyalgia.*fn22 ...


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