Petition for Writ of Certiorari — Jacqueline Avery, Petitioner v. Sedgwick Claims Management Services, Inc., et al.
Supreme Court briefNov 22, 2023
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APPENDIX TABLE OF CONTENTS
Page
Sixth Circuit Court of Appeals, Opinion, dated
July 24, 2023 .................................................... App. 1
Sixth Circuit Court of Appeals, Judgment, dated
July 24, 2023 .................................................. App. 32
United States District Court for the Eastern
District of Michigan, Southern Division, Opinion and Order, dated September 21, 2022 ..... App. 34
United States District Court for the Eastern
District of Michigan, Southern Division, Opinion and Order, dated September 14, 2021 ..... App. 73
Sixth Circuit Court of Appeals, Order, dated August 24, 2023 .................................................. App. 88
29 U.S.C. § 1133 ................................................. App. 90
29 C.F.R. § 2560.503-1 ....................................... App. 91
Email from Barry Whiteside, dated June 11,
2014 .............................................................. App. 121
Email from Craig Banasiak, dated June 25,
2014 .............................................................. App. 124
Letter from Chrysler Groups Service Center,
dated July 21, 2014 ...................................... App. 129
Letter to Patsy Ball-Johnson, dated July 28,
2014 .............................................................. App. 131
Letter from Chrysler Groups Service Center,
dated August 20, 2014 ................................. App. 137
Letter from Chrysler Groups Service Center,
dated September 12, 2014 ........................... App. 140
ii
APPENDIX TABLE OF CONTENTS – Continued
Page
Letter from Sedgwick Appeals Unit, dated July
8, 2015 .......................................................... App. 143
Letter from Sedgwick Appeals Unit, dated September 30, 2015 ............................................ App. 144
App. 1
NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0338n.06
Case No. 22-1960
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JACQUELINE AVERY,
)
)
Plaintiff - Appellant,
)
v.
) ON APPEAL FROM
) THE UNITED STATES
SEDGWICK CLAIMS
) DISTRICT COURT FOR
MANAGEMENT
) THE EASTERN DISTRICT
SERVICES, INC. and
) OF MICHIGAN
FCA US LLC LONG)
OPINION
TERM DISABILITY
)
BENEFIT PLAN,
(Filed Jul. 24, 2023)
)
Defendants - Appellees. )
Before: McKEAGUE, GRIFFIN, and MURPHY, Circuit
Judges.
McKEAGUE, Circuit Judge. For roughly two
years, Jacqueline Avery received long-term disability
benefits from her former employer, Chrysler Group
LLC (Chrysler), through its FCA US LLC Long Term
Disability Benefit Plan (the Plan). The Plan’s thirdparty claims administrator, Sedgwick Claims Management Services, Inc. (Sedgwick), later terminated those
benefits after concluding that Avery no longer qualified
as “totally disabled” within the meaning of the Plan.
Avery brought this action under 29 U.S.C. § 1332(a)(1)(B)
App. 2
of the Employee Retirement Income Security Act of
1974 (ERISA) to recover and reinstate her long-term
disability benefits. The district court granted judgment
on the administrative record in favor of Sedgwick and
the Plan, and Avery now appeals. For the following reasons, we affirm.
I
A. Factual Background
In 2006, Jacqueline Avery was on a camping trip
when she fell and fractured her right ankle. She largely
recovered, but severe pain in her right leg spontaneously returned in 2011. At the time, Avery worked for
Chrysler as a finance specialist, and the persistent
pain began to impede her ability to work. In July 2011,
Avery was diagnosed with “advance peripheral deyelinatibe and axonal polyneuropathy [of the] lower
legs,” and her last date worked was July 15, 2011. A.R.
195.
Avery initially applied for and received short-term
disability benefits under Chrysler’s Disability Absence
Plan. But when her eligibility for short-term benefits
expired, Avery converted her claim into one for longterm benefits. To be eligible for long-term disability
benefits, the Plan states in ungrammatical fashion
that a participant must “be ‘totally disabled’ because
of disease or injury so as during the first 24 months of
disability to be unable to perform the duties of the Participant’s occupation, and after the first 24 months of
App. 3
disability be unable to engage in regular employment
or occupation with the Corporation.” A.R. 1206.
Due to the nature of Avery’s condition, Sedgwick
referred Avery’s claim to two board-certified neurologists, Dr. Hermann Banks, M.D., and Dr. David Gaston,
M.D., for independent medical examinations. Dr. Banks
opined that Avery suffered from “[r]ight lower extremity pain with paresthesia and dysesthesia” and recommended that Avery not return to work. A.R. 793. Dr.
Gaston similarly identified “exquisite pain on motion
of the right distal leg and foot,” and diagnosed Avery
with Complex Regional Pain Syndrome Type II. Relying
on the results of these medical examinations, among
other medical records, Sedgwick approved Avery for
long-term disability benefits effective August 10, 2012,
on the basis of “totally disabling condition(s) of Right
Lower Extremity Neuropathy & reflex sympathetic
dystrophy lower extremity.” A.R. 1055.
Pursuant to the terms of the Plan, Sedgwick also
required Avery to apply for Social Security Disability
Insurance (SSDI) benefits. The Social Security Administration (SSA) awarded Avery monthly SSDI benefits
in the amount of $2,024, retroactive to January 2012.
Sedgwick then requested and received reimbursement
for overpayment in the amount of $15,069.42.
Throughout 2013 and early 2014, Avery continuously furnished medical records from her treating physicians to substantiate her disability, and Sedgwick
repeatedly approved Avery’s long-term disability benefits under the Plan. But in June 2014, Chrysler’s
App. 4
Special Investigations Unit surveilled Avery and purportedly observed her driving—something she is medically restricted from doing. Chrysler also suspected
that Avery was running a business out of her home.
This prompted Chrysler to request an additional independent medical examination. Sedgwick scheduled the
requested medical exam with Dr. Joel Shavell, D.O.,
who is board certified in internal medicine and rheumatology; he examined her on July 15, 2014. Dr.
Shavell observed that Avery “walked in quickly with a
normal gait and had no problems getting undressed,
and no problems getting in and out of the room; no
problems moving, and no problems functionally.” A.R.
977. Based on these observations, Dr. Shavell concluded:
At this time, I do not see any evidence of a regional complex pain issue, and normally with
these pain syndromes, they are so severe and
difficult that patients hardly recover fully.
They have some residual, such as walking
with a limp, or inability to move a leg, as well
as sensitivity to touch. These would be some
of the findings that would be common and Ms.
Avery exhibits none of them. . . .
Based on the fact that I do not find a regional
complex pain issue, and because she does not
have a venous issue, and based on the fact
that when I examined her ankle she [can]
bear weight on the ankle, on her heels and
toes despite her weight, I do not find any physical evidence to substantiate at this point any
disability whatsoever. It is my opinion that
App. 5
she can return to full duty work, as of today’s
date.
A.R. 978-79.
After receiving the results of the independent
medical examination, Sedgwick notified Avery via letter dated July 21, 2014, that she had been found able
to work, and requested that she report to her plant
medical department for further evaluation. Sedgwick
indicated that Avery’s benefits “may be suspended effective July 21, 2014, pending the outcome of the ability to work examination.” A.R. 974. On July 22, 2014,
Avery reported to Chrysler’s medical department
where the plant medical doctor determined that Avery
was able to return to work.
During the evaluation, a plant medical nurse provided Avery with a copy of Dr. Shavell’s narrative report. Believing the report to be filled with “bold face
lies,” Avery called Sedgwick to complain. A.R. 944. A
Sedgwick representative instructed Avery to formalize
her complaints in writing, which she did a few days
later. On July 28, 2014, Avery sent a letter to Sedgwick
“to appeal [her] recent return to work decision” and
“to challenge several statements” made by Dr. Shavell.
A.R. 964-66. On August 4, 2014, Sedgwick acknowledged receipt of Avery’s “request for appeal” and indicated that her claim would be reviewed by Sedgwick’s
Appeals Unit. A.R. 957. On August 8, 2014, Sedgwick
called Avery to ask whether she intended to provide
any additional information or documentation. Avery
responded that she did not. A.R. 949.
App. 6
Internal documents indicate that Sedgwick’s July
21, 2014, letter was neither a formal nor final denial
letter, as it did not “outlin[e] the reason for denial or
[detail] appeal rights. The letter only request[ed] that
the claimant RTW [return to work].” A.R. 458. Rather,
Sedgwick did not issue its formal benefits determination until roughly one month later, via letter dated August 20, 2014, wherein Sedgwick set forth the Plan’s
eligibility criteria, articulated the reasons for its benefits denial, and outlined the appeals procedures. Nonetheless, Sedgwick continued to treat Avery’s July 28,
2014, letter as an appeal and reviewed Avery’s claim in
the ordinary course.
As part of this review process, Sedgwick referred
Avery’s claim for an independent record review (IRR)
with Dr. David Hoenig, M.D., a specialist in neurology
and pain medicine. Dr. Hoenig reviewed Avery’s medical records and concluded that “[b]ased on the documentation provided, and from a neurological perspective
only, [Avery] is not disabled from performing any work
as of 07/22/14.” A.R. 663.
By letter dated September 12, 2014, Sedgwick formally denied Avery’s appeal. The letter indicated that
the decision was “the Claim Administrator’s final decision,” and that Avery had “the right to bring a civil action under ERISA” and was “entitled to receive[ ], upon
request and free of charge, reasonable access to, and
copies of, all documents, records, and other information
relevant to [her] claim for benefits.” A.R. 659.
App. 7
Avery did not respond until more than eight
months later, when her attorney sent a letter to Sedgwick on May 18, 2015, demanding that “Ms. Avery’s
benefits be immediately reinstated with retroactive
pay forthwith.” A.R. 654. Attached to this demand was
a letter from Dr. Brengel, Avery’s primary care doctor
who specializes in family medicine, wherein Dr. Brengel disputed Dr. Shavell’s findings and attempted to
bolster Avery’s claimed disability. Specifically, Dr.
Brengel referenced “an EMG performed by K. Fram,
M.D., in December of 2014,” and indicated that “Dr.
Fram believes that Ms. Avery has reflex sympathetic
dystrophy in her right lower extremity by history,
chronic S1 radiculopathy bilaterally, severe peripheral
polyneuropathy, and bilateral tarsal tunnel syndrome.”
A.R. 655. On this basis, Dr. Brengel concluded that
Plaintiff “remain[ed] disabled due to the difficulties
with her right leg.” Id.
Despite having no obligation to do so, Sedgwick responded to the letter by initiating a “re-review” of
Avery’s claim. A.R. 651. As part of this voluntary rereview, Sedgwick offered Avery an opportunity to submit additional medical information and documentation before July 28, 2015, but Avery never submitted
additional records.1 Sedgwick also referred Avery’s
claim to Dr. Mark N. Friedman, D.O, a board-certified
neurologist and specialist in internal medicine, for another IRR. Dr. Friedman reviewed Avery’s medical records and concluded that Avery “is not disabled from
1
Avery claims she never received this letter. See Appellant’s
Br. at 21.
App. 8
performing any work as of 07/22/14.” A.R. 601. Relying
on Dr. Friedman’s report, Sedgwick upheld its decision
to terminate Avery’s long-term disability benefits. By
letter dated September 30, 2015, Sedgwick informed
Avery that she no longer satisfied the Plan’s eligibility requirements. The letter also outlined her appeal
rights. Avery did not appeal that decision.
B. Procedural Posture
Avery filed suit in the Eastern District of Michigan
pursuant to Section 502(a)(1)(B) of ERISA, 29 U.S.C.
§ 1132(a)(1)(B), to recover long-term disability benefits
allegedly owed to her under the terms of the Plan. The
complaint appears premised on Sedgwick’s September
12, 2014, denial, which Avery refers to as “the final decision on Ms. Avery’s claim.” R. 1, PID 11. It does not
reference Sedgwick’s voluntary re-review or the decision issued on September 30, 2015.
She also filed a “Statement of Procedural Challenge,” alleging various procedural errors committed
by Sedgwick and requesting that the court schedule a
status conference to address discovery. Defendants
filed a “Motion to Strike Statement of Procedural Challenge,” which the district court construed as a motion
to review and reject Avery’s Statement. The district
court rejected Avery’s Statement, finding that no valid
procedural challenge was presented justifying further
discovery.
Thereafter, the parties filed competing motions for
judgment on the administrative record. The district
App. 9
court denied Avery’s motion and granted judgment on
the administrative record in favor of Sedgwick and the
Plan. This appeal followed.
II
“We review de novo the decision of a district court
granting judgment in an ERISA disability action based
on an administrative record.” DeLisle v. Sun Life Assurance Co. of Can., 558 F.3d 440, 444 (6th Cir. 2009)
(internal quotation marks omitted). And when the insurance plan administrator is vested with discretion to
interpret the plan, we review the administrator’s decision to deny benefits under the arbitrary and capricious standard. Helfman v. GE Grp. Life Assurance Co.,
573 F.3d 383, 392 (6th Cir. 2009). Here, neither party
disputes that the Plan gives Sedgwick this discretion.
We therefore review Sedgwick’s decision to terminate
Avery’s long-term disability benefits under the arbitrary and capricious standard. See Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).2 Finally,
2
Relying on the Second Circuit’s opinion in Halo v. Yale
Health Plan, 819 F.3d 42 (2d Cir. 2016), Avery argues that the
de novo standard of review should apply to our review of the administrator’s decision to terminate benefits because Sedgwick allegedly failed to comply with the claims procedure regulation.
Appellant’s Br. at 25. In Halo, the Second Circuit held that “a
plan’s failure to comply with the Department of Labor’s claimsprocedure regulation, 29 C.F.R. § 2560.503-1, will result in that
claim being reviewed de novo in federal court, unless the plan has
otherwise established procedures in full conformity with the regulation and can show that its failure to comply with the regulation in the processing of a particular claim was inadvertent and
App. 10
we review de novo “the question of whether the procedure employed by the fiduciary in denying the claim
meets the requirements of Section 1133.” Kent v. United
of Omaha Life Ins. Co., 96 F.3d 803, 806 (6th Cir. 1996).
A. Sedgwick Satisfied ERISA Procedural Requirements
On appeal, Avery raises a series of procedural objections, broadly arguing that Sedgwick violated ERISA
claims procedures, and that in so doing, Sedgwick denied her claim a full and fair review. Specifically, Avery
alleges the following: (1) Sedgwick’s initial denial letter failed to comply with ERISA requirements, (2)
Sedgwick did not afford Avery a reasonable opportunity to appeal, (3) Sedgwick did not provide Avery
with an opportunity to supplement the administrative
record, (4) Dr. Shavell lacked the required training
and experience, and (5) Sedgwick omitted relevant
documents from the administrative record. Addressing
each procedural objection in turn, we conclude that
Sedgwick substantially complied with ERISA claims
procedures.
ERISA Procedural Requirements
We begin with a brief overview of the ERISA regulations that govern employee benefit claims procedures.
ERISA ensures that fiduciaries administer employee
harmless.” 819 F.3d at 45. However, this circuit has yet to adopt
such a rule, and we decline to do so here.
App. 11
benefit plans “solely in the interest of the participants
and beneficiaries.” 29 U.S.C. §§ 1104(a)(1), 1001(b). Under ERISA, the Secretary of Labor has the authority to
enact regulations that govern the administration of employee benefit claims. Id. §§ 1133, 1135. Section 1133
provides that every employee benefit plan must:
(1) provide adequate notice in writing to any
participant or beneficiary whose claim for
benefits under the plan has been denied,
setting forth the specific reasons for such
denial, written in a manner calculated to
be understood by the participant, and
(2) afford a reasonable opportunity to any
participant whose claim for benefits has
been denied for a full and fair review by
the appropriate named fiduciary of the
decision denying the claim.
Id. § 1133. We have held that the “essential purpose”
of these requirements is twofold: “(1) to notify the
claimant of the specific reasons for a claim denial, and
(2) to provide the claimant with an opportunity to have
that decision reviewed by the fiduciary.” Wenner v. Sun
Life Assurance Co. of Can., 482 F.3d 878, 882 (6th Cir.
2007) (emphasis and citation omitted).
In deciding whether a plan has satisfied the requirements of § 1133, we employ a “substantial compliance” test. Id. Under this test, all communications
between the claimant and the administrator are considered. “If the communications between the administrator and participant as a whole fulfill the twin
purposes of § 1133, the administrator’s decision will be
App. 12
upheld even where the particular communication does
not meet those requirements.” Id. (internal quotation
marks omitted).
Additional procedural safeguards are codified in
29 C.F.R. § 2560.503-1, titled “Claims procedure.” Specifically, “in the context of an administrative appeal of an
adverse benefits determination, 29 C.F.R. § 2560.5031(h)(2) outlines the essential procedural requirements
for a full and fair review.” Balmert v. Reliance Standard Life Ins. Co., 601 F.3d 497, 502 (6th Cir. 2010). That
provision provides, in part:
[T]he claims procedures of a plan will not
be deemed to provide a claimant with a reasonable opportunity for a full and fair review
of a claim and adverse benefit determination
unless the claims procedures— . . .
(ii) Provide claimants the opportunity to
submit written comments, documents,
records, and other information relating to the claim for benefits;
(iii) Provide that a claimant shall be provided, upon request and free of charge,
reasonable access to, and copies of, all
documents, records, and other information relevant to the claimant’s
claim for benefits. . . .
(iv) Provide for a review that takes into
account all comments, documents,
records, and other information submitted by the claimant relating to
the claim, without regard to whether
App. 13
such information was submitted or
considered in the initial benefit determination.
29 C.F.R. § 2560.503-1(h)(2). Furthermore, “group health
plans,” such as the Plan that is at issue in this case,
are required to comply with the following:
(i)
Provide claimants at least 180 days following receipt of a notification of an adverse benefit determination within which
to appeal the determination;
(ii) Provide for a review that does not afford
deference to the initial adverse benefit
determination and that is conducted by
an appropriate named fiduciary of the
plan who is neither the individual who
made the adverse benefit determination
that is the subject of the appeal, nor the
subordinate of such individual; [and]
(iii) Provide that, in deciding an appeal of any
adverse benefit determination that is
based in whole or in part on a medical
judgment, . . . the appropriate named fiduciary shall consult with a health care
professional who has appropriate training and experience in the field of medicine
involved in the medical judgment. . . .
Id. § 2560.503-1(h)(3)(i)-(iii).
App. 14
Notice and an Opportunity to Appeal
Avery’s first procedural objection takes issue with
Sedgwick’s July 21, 2014, letter. She argues that the
letter failed to “inform her that she could submit comments or other information, that she could obtain documents relevant to her claim in order to prepare an
appeal, and did not describe any appeal procedures.”
Appellant’s Br. at 31-32. In response, Sedgwick argues
that its letter was neither a formal benefit determination nor final claim denial. Rather, the letter merely
intended to advise Avery of the results of her independent medical examination and to instruct her to report
to her plant medical department for an ability-to-work
determination. Sedgwick contends that later communications—such as the August 20, 2014, letter terminating Avery’s benefits, the September 12, 2014, letter
denying Avery’s appeal, and the September 30, 2015,
letter upholding the benefits denial upon re-review—
constitute benefits determinations, and that each complied with ERISA.
We need not resolve whether Sedgwick’s July 21,
2014, letter was in fact a formal benefit determination, because Sedgwick’s collective communications
with Avery substantially complied with ERISA’s procedural requirements. See Kent, 96 F.3d at 807 (holding
that, despite technical deficiencies in the insurer’s denial letters, “when viewed in light of the myriad of communications between claimant, her counsel and the
insurer, [the letters] were sufficient to meet the purposes of Section 1133 in insuring that the claimant
understood the reasons for the denial of the claim as
App. 15
well as her rights to review of the decision”). Although
Sedgwick’s July 21, 2014, letter undoubtedly fell short
of meeting the requirements articulated in § 2560.5031(h), its August 20, 2014, denial letter corrected any
deficiencies. Avery was made aware of the reasons for
Sedgwick’s benefits denial (i.e., the results of Dr. Shavell’s
independent medical examination) and of her appeal
rights. Collectively, therefore, Sedgwick’s communications with Avery satisfied the dual purposes behind
(and plain text of ) Section 1133. See Wenner, 482 F.3d
at 882; Putney v. Med. Mut. of Ohio, 111 F. App’x 803,
807 (6th Cir. 2004) (finding that an administrator’s
failure to satisfy ERISA notice requirements was “neither significant nor outcome determinative” where
the “procedural failures did not prevent [the claimant]
from gaining information necessary to contest his denial of benefits”).
Avery’s argument that Sedgwick deprived her of
an opportunity to appeal its adverse benefit decision
fails for similar reasons. First, on July 28, 2014, Avery
“appealed” the results of Dr. Shavell’s independent
medical examination, albeit before receiving Sedgwick’s
August 20, 2014, letter. Sedgwick ultimately treated
Avery’s July 28, 2014, letter as a proper and timely appeal, and it reviewed Avery’s claim as it would any
other appeal. Thereafter, Sedgwick effectively afforded
Avery a second appeal by voluntarily re-reviewing her
claim in 2015. And finally, Sedgwick provided Avery
with an opportunity to appeal its September 30, 2015,
decision, which upheld the termination of her long-term
App. 16
disability benefits upon re-review, but Avery chose not
to appeal that decision.
Given this posture, Avery cannot argue that she
was denied a reasonable opportunity to appeal Sedgwick’s decision. Put plainly, Avery did appeal the termination of her long-term disability benefits—twice.
And when afforded an additional opportunity to appeal
Sedgwick’s final benefits determination in 2015, Avery
declined to do so. In sum, we simply cannot see how
Sedgwick’s procedures fell short of providing Avery’s
claim a meaningful review.
Opportunity to Supplement and Access the Record
Next, Avery contends that “Sedgwick did not provide [her] with an opportunity to submit comments or
documents in response to the initial benefit decision
before issuing the final decision,” in violation of 29
C.F.R. § 2560.503-1(h)(2)(ii). Reply Br. at 10. Again, we
disagree.
Before issuing its initial benefits denial, Sedgwick
contacted Avery to ask whether she intended to provide
any additional information, to which she responded “no.”
A.R. 949. Likewise, during its voluntary re-review,
Sedgwick afforded Avery the opportunity to supplement the record with any additional medical information or documentation, but Avery declined to do
so. Most important, however, is that Avery did submit
comments in response to Dr. Shavell’s independent
medical examination, and those comments were considered throughout the appeals process. For instance,
App. 17
Dr. Hoenig’s IRR report references Avery’s “appeal
letters” dated July 28, 2014. And Dr. Friedman’s IRR
report notes that, “[o]n 07/28/14, the claimant wrote
an appeal letter refuting many of the physical examination findings, observations, and conclusions by Dr.
Shavell.” A.R. 607. Nevertheless, the applicable regulations do not require plan administrators (or their
consultants) to reference a claimant’s comments with
particularity. They merely require that plans “[p]rovide
claimants the opportunity to submit written comments.”
29 C.F.R. § 2560.503-1(h)(ii) (emphasis added). And in
this case, for the reasons already stated, Sedgwick and
the Plan provided Avery this opportunity.
Relatedly, Avery argues that Sedgwick failed to
provide her “with reasonable access to all of the information relevant to her claim for benefits,” in violation
of 29 C.F.R. § 2560.503-1(h)(2)(iii). Reply Br. at 10. We
find no evidence in the record to support this assertion.
While claimants are entitled to reasonable access to
records relevant to their claim, this access is provided
“upon request.” 29 C.F.R. § 2560.503-1(h)(2)(iii). And
there is no indication that Avery ever requested access
to records or that she was denied access following such
request.
Dr. Shavell’s Training and Experience
Next, Avery argues that Dr. Shavell “did not have
appropriate training and experience in the field of neurology” necessary to evaluate her condition, in violation of 29 C.F.R. § 2560.503-1(h)(3)(iii). Appellant’s Br.
App. 18
at 23. Again, Avery’s procedural challenge lacks
merit. Although it is true that Dr. Shavell is not a
board-certified neurologist, his independent medical
examination was not the basis for Sedgwick’s final
determination. Rather, Sedgwick relied on IRRs conducted by two board-certified neurologists, Dr. Hoenig
and Dr. Friedman, to terminate Avery’s long-term disability benefits.
Furthermore, the requirement that a group health
plan “consult with a health care professional who has
appropriate training and experience in the field of
medicine involved in the medical judgment,” applies
only “in deciding an appeal of any adverse benefit determination.” 29 C.F.R. § 2560.503-1(h)(3)(iii). Because
Dr. Shavell was not consulted in deciding an appeal,
his training and experience is procedurally irrelevant.
Documents Omitted from the Administrative Record
Finally, Avery argues that Sedgwick deliberately
omitted relevant documents from the administrative
record. Specifically, she alleges that Sedgwick failed to
include evidence of “actual surveillance” and omitted
documents related to her Social Security disability
award. Appellant’s Br. at 33-34. Again, Avery’s allegation lacks support.
Sedgwick included within the administrative record an email description of surveillance that took place
in April 2014. At the time, Chrysler’s Corporate Investigations department observed Avery driving on several occasions and suspected that she may be running
App. 19
a business out of her home. An investigator communicated these observations and suspicions to Chrysler’s
Special Investigations Unit via email. But beyond this
email description, which is already included in the
administrative record, there is no indication that any
other documentation pertaining to Chrysler’s surveillance—written, visual, or otherwise—even exists. Avery’s
suggestion that “actual surveillance” has been omitted
from the administrative record is pure speculation.
And the same is true for Social Security Disability
records. The administrative record includes evidence
of the following: the Plan’s requirement that Avery apply for Social Security disability benefits, evidence of
Avery’s application for Social Security disability benefits, the Social Security Administration’s monthly SSDI
benefit award of over $2,000, and Sedgwick’s reimbursement in the amount of over $15,000 for overpayment.
Avery speculates that, because Sedgwick facilitated
her Social Security application process, Sedgwick must
possess additional documents related to her Social Security disability award. But again, this is mere speculation. Avery cannot identify any documents within
Sedgwick’s possession that have been omitted from
the administrative record. If Avery wished to include
additional Social Security documentation in the administrative record, she should have requested said
documents from the SSA directly and supplemented
the record when given the opportunity to do so.
App. 20
B. Sedgwick’s Decision Was Not Arbitrary or
Capricious
Having addressed Avery’s procedural objections—
i.e., objections to how the benefits decision was made—
we turn to Avery’s contention that Sedgwick simply
made the wrong decision. As stated above, because the
Plan grants Sedgwick the discretionary authority to
determine eligibility for benefits and to construe the
Plan’s terms, we review Sedgwick’s decision to terminate Avery’s long-term disability benefits under the
arbitrary and capricious standard. McClain v. Eaton
Corp. Disability Plan, 740 F.3d 1059, 1064 (6th Cir.
2014); see also Firestone, 489 U.S. at 115.
Arbitrary and capricious review “is the least demanding form of judicial review of administrative action.” Williams v. Int’l Paper Co., 227 F.3d 706, 712 (6th
Cir. 2000). Under this extremely deferential standard,
we need only decide “whether the plan administrator’s
decision was rational in light of the plan’s provisions.”
Id. (internal quotation marks omitted). We will uphold
Sedgwick’s decision if “it is the result of a deliberate,
principled reasoning process and if it is supported by
substantial evidence.” Baker v. United Mine Workers of
Am. Health & Ret. Funds, 929 F.2d 1140, 1144 (6th Cir.
1991). “[T]he ultimate issue in an ERISA denial of benefits case is not whether discrete acts by the plan administrator are arbitrary and capricious but whether
its ultimate decision denying benefits was arbitrary
and capricious.” Spangler v. Lockheed Martin Energy
Sys., Inc., 313 F.3d 356, 362 (6th Cir. 2002). The burden
is on the claimant to show that the administrator acted
App. 21
arbitrarily. Farhner v. United Transp. Union Discipline
Income Prot. Program, 645 F.3d 338, 343 (6th Cir.
2011).
With that being said, the arbitrary and capricious
standard is not “without some teeth.” McDonald v. W.S. Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003) (citation omitted). “[M]erely because our review must be
deferential does not mean our review must also be inconsequential. While a benefits plan may vest discretion in the plan administrator, the federal courts do not
sit in review of the administrator’s decisions only for
the purpose of rubber stamping those decisions.” Moon
v. Unum Provident Corp., 405 F.3d 373, 379 (6th Cir.
2005). Instead, “[s]everal lodestars guide our decision:
the quality and quantity of the medical evidence; the
existence of any conflicts of interest; whether the administrator considered any disability finding by the
Social Security Administration; and whether the administrator contracted with physicians to conduct a
file review as opposed to a physical examination of the
claimant.” Shaw v. AT&T Umbrella Ben. Plan No. 1,
795 F.3d 538, 547 (6th Cir. 2015) (internal quotation
marks omitted). In conducting our review, we may generally “consider only the evidence available to the administrator at the time the final decision was made.”
Id.
Avery alleges that Sedgwick’s benefits denial was
arbitrary and capricious because Sedgwick (1) ignored
favorable evidence, (2) improperly relied on file reviews conducted by physicians who were not provided
adequate documentation, and (3) ignored the Social
App. 22
Security Administration’s disability finding. We will
address each substantive challenge in turn.
Sedgwick’s Review of the Evidence
First, Avery argues that Sedgwick “ignored and selectively reviewed” the evidence. Appellant’s Br. at 41.
Avery is correct that “administrators may not selectively review the administrative record by picking out
the opinions of the doctors that support their decisions
while ignoring the opinions of a participant’s treating doctors that do not.” Autran v. Proctor & Gamble
Health & Long-Term Disability Benefit Plan, 27 F.4th
405, 415 (6th Cir. 2022). Instead, administrators must
“consider all opinions on both sides of a disputed disability question.” Id.
But here, we find that the physicians whom Sedgwick consulted to evaluate Avery’s claim engaged in a
fulsome review of the record—including the medical
evidence provided by Avery’s treating physicians. Dr.
Hoenig, for example, reviewed records from Avery’s
primary care physician, Dr. Brengel. Dr. Hoenig also
reviewed the independent medical examination reports from Dr. Banks and Dr. Gaston, both of whom had
previously found Avery totally disabled. Dr. Hoenig
even attempted (to no avail) to contact Dr. Nounou, one
of Avery’s treating physicians, to discuss Avery’s history. Although a plan administrator need not “accord
special deference to the opinions of treating physicians,” Black & Decker Disability Plan v. Nord, 538
U.S. 822, 831 (2003), the record reveals that Sedgwick
App. 23
took Avery’s doctors’ opinions seriously. Indeed, Dr.
Hoenig referred to their findings as “clinical[ly] significant.” A.R. 663. Relying on Dr. Hoenig’s file review,
among other medical records, Sedgwick concluded that
the documentation provided did not support Avery’s
claimed disability.
A year later, upon re-review of Avery’s claim, Sedgwick consulted Dr. Friedman, who also engaged in a
comprehensive review of the record. Like Dr. Hoenig,
Dr. Friedman reviewed extensive medical records, including those provided by Avery’s treating physicians,
as well as the results of Dr. Banks’ and Dr. Gaston’s
independent medical examinations. Dr. Friedman contacted and spoke with a nurse in Dr. Nounou’s office.
And Dr. Friedman even credited Avery’s subjective
reports of pain: “the claimant reports that she has
ongoing symptoms related to complex regional pain
syndrome including walking with a limp and sensitivity to touch to the legs. She reported that she was bedridden several days per week and had difficulties doing
daily activities such as cooking, cleaning, and shopping.” A.R. 600. Nonetheless, in reviewing Avery’s medical records, Dr. Friedman concluded that, “[b]ased on
the clinical evidence provided for review, the employee
does not require any restrictions on their work duties
at any point during the dates of claimed disability in
order to return to work.” A.R. 601. Relying on Dr. Friedman’s report, Sedgwick upheld its termination of
Avery’s long-term disability benefits, citing “no sufficient clinical evidence to support any restrictions and
limitations.” A.R. 593.
App. 24
In rejecting the opinion of a treating physician, a
plan administrator need only offer “reasons for adopting an alternative opinion” to survive arbitrary and capricious review. Shaw, 795 F.3d at 549. And “a lack of
objective medical evidence upon which to base a treating physician’s opinion has been held sufficient reason for an administrator’s choice not to credit [an]
opinion.” Gilewski v. Provident Life and Accident Ins.
Co., 683 F. App’x 399, 406 (6th Cir. 2017). Here, Sedgwick rejected the opinions of Avery’s treating physicians based on the opinions of Dr. Hoenig and Dr.
Friedman, who concluded that the objective medical
evidence in Avery’s file did not support her claimed disability. And we can discern no selective review by the
physicians who reviewed Avery’s files. Indeed, their
differences from earlier opinions can be explained by
the “extensive treatment” that Avery underwent in the
interim—treatment that drastically reduced her pain
levels. A.R. 608. Accordingly, we find that Sedgwick engaged in a deliberate, principled reasoning process
when it decided to terminate Avery’s long-term disability benefits.
Sedgwick’s Reliance on Independent Record Reviews
Next, Avery argues that “Sedgwick’s reliance on
record review consultants who were not provided appropriate records . . . was also arbitrary and capricious.” Appellant’s Br. at 36. As an initial matter, we
note that Sedgwick’s decision to conduct IRRs—or
“file reviews”—rather than physical examinations is a
factor that we must consider in determining whether
App. 25
Sedgwick acted arbitrarily or capriciously, but that
there is “nothing inherently objectionable about a file
review by a qualified physician in the context of a benefits determination.” Calvert v. Firstar Fin., Inc., 409
F.3d 286, 296 (6th Cir. 2005). Instead, an administrator’s decision to conduct an IRR in lieu of a physical
examination is “just one more factor to consider in
our overall assessment of whether [the administrator]
acted in an arbitrary and capricious fashion.” Id. at
295.
At different points in the review process, Sedgwick
referred Avery’s claim to two independent physician
consultants, Dr. Hoenig and Dr. Friedman, for file reviews. Both doctors reviewed Avery’s medical records,
but neither physically examined her, before providing
thorough reports. In their IRRs, Dr. Hoenig and Dr.
Friedman identified the medical records that they reviewed and provided detailed accounts of Avery’s medical history. Both doctors also acknowledged Avery’s
prior limitations and credited her treating physicians’
observations. However, despite this favorable evidence,
both Dr. Hoenig and Dr. Friedman identified contrary
evidence that cut against Avery’s claimed disability.
For example, Dr. Hoenig noted that “[t]he last neurological exam in the medical record is from February 6,
2013,” and that “after her spinal cord stimulator (SCS),
she has a normal neurological exam.” A.R. 663. And Dr.
Friedman observed that Dr. Nounou, one of Avery’s
treating physicians, had not recommended any specific
restrictions after a July 2014 endovenous ablation
procedure. Given this evidence, Dr. Hoenig and Dr.
App. 26
Friedman concluded that Avery was not disabled from
performing any work, and those conclusions were reasonable.
Calvert is distinguishable. There we found that an
insurance company acted arbitrarily and capriciously
when it based its benefits determination on a “clearly
inadequate” file review, because it, among other things,
failed to identify the records reviewed, ignored favorable evidence, and reached conclusions that squarely
contradicted objective evidence. 409 F.3d at 296. But
here, both Dr. Hoenig and Dr. Friedman recited Avery’s
medical history in detail, specifically noted favorable
evidence, and even credited Avery’s treating physicians. Furthermore, neither doctor made any credibility findings. See Judge v. Metro. Life Ins. Co., 710 F.3d
651, 663 (6th Cir. 2013) (“This court has found fault
with file-only reviews in situations where the file reviewer concludes that the claimant is not credible
without having actually examined him or her”). The
file reviews at issue here were thus adequate.
As for Avery’s assertion that Dr. Hoenig and Dr.
Friedman were not provided appropriate records to review, Avery has not identified any post-termination
medical records that exist, let alone records that support her claimed disability. The closest thing to medical
evidence made available post-termination is Dr. Brengel’s April 2015 letter, which Dr. Friedman reviewed.
However, because Dr. Brengel’s letter “did not include
any new examination findings or results of [EMG] testing,” Dr. Friedman concluded that his position remained unchanged. A.R. 592-93. In sum, Sedgwick’s
App. 27
reliance on independent record reviews did not render
its final benefits determination arbitrary and capricious.
The Social Security Administration’s Disability Finding
Finally, Avery argues that Sedgwick’s decision was
arbitrary and capricious because it did not address the
fact that Avery successfully applied for Social Security
disability benefits. “[I]f the plan administrator (1) encourages the applicant to apply for Social Security
disability payments; (2) financially benefits from the
applicant’s receipt of Social Security; and then (3) fails
to explain why it is taking a position different from the
SSA on the question of disability, the reviewing court
should weigh this in favor of a finding that the decision
was arbitrary or capricious.” Bennett v. Kemper Nat.
Servs., 514 F.3d 547, 554 (6th Cir. 2008).
It is undisputed that Sedgwick required Avery to
apply for Social Security benefits, and that Sedgwick
benefited financially from reimbursement payments. It
is also undisputed that Sedgwick neglected to reference Avery’s Social Security award in either its initial
denial of Avery’s appeal or in its final determination
upon re-review. Nevertheless, Bennett merely instructs
“that a failure to take into account a Social Security
disability award is to be weighed in favor of a finding
that the decision was arbitrary and capricious, not that
such a decision is arbitrary and capricious per se.”
Morris v. Am. Elec. Power Long-Term Disability Plan,
App. 28
399 F. App’x 978, 986 (6th Cir. 2010). And it is not necessary for a plan administrator to “expressly distinguish
a favorable SSA determination in denying disability
benefits under the plan.” Leffew v. Ford Motor Co., 258
F. App’x 772, 779 (6th Cir. 2007).
Although Sedgwick’s decision to terminate Avery’s
benefits, despite the SSA’s earlier disability finding,
weighs “slightly in [Avery]’s favor when it comes to
evaluating whether that decision was arbitrary and capricious,” Morris, 399 F. App’x at 986, it is not enough
to convince us that Sedgwick acted arbitrarily on the
whole. For one, the SSA’s disability determination was
made two years prior to Sedgwick’s decision to terminate Avery’s benefits. See Cox v. Standard Ins. Co., 585
F.3d 295, 303 (6th Cir. 2009). And at the time Sedgwick
made its decision, it possessed additional medical evidence that the SSA did not, including the results of Dr.
Shavell’s independent medical examination, the plant
medical physician’s ability-to-work determination, and
IRRs from Dr. Hoenig and Dr. Friedman. See id.
Moreover, the fact that Avery qualified for Social
Security disability benefits does not necessarily mean
that she should qualify for benefits under the Plan, because “a claim for benefits under an ERISA plan often
turns on the interpretation of plan terms that differ
from SSA criteria.” Whitaker v. Hartford Life and Acc.
Ins. Co., 404 F.3d 947, 949 (6th Cir. 2005). For instance,
Sedgwick—unlike the SSA at the time of its decision—
was not required to defer to the opinions of Avery’s
treating physicians. See O’Bryan v. Consol Energy Inc.,
477 F. App’x 306, 308 (6th Cir. 2012) (per curiam). We
App. 29
therefore conclude that Sedgwick’s failure to address
the SSA’s disability determination did not render
Sedgwick’s decision arbitrary and capricious.
Sedgwick’s Decision Was Supported by Substantial
Evidence
Sedgwick terminated Avery’s long-term disability
benefits after deciding that she was no longer “totally
disabled” under the meaning of the Plan. The district
court concluded that substantial evidence supported
Sedgwick’s decision. We agree.
In reviewing the quality and quantity of the evidence in the administrative record, we have said that
“substantial evidence” is “more than a mere scintilla.”
McDonald, 347 F.3d at 171 (citation omitted). “It means
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citation
omitted). “The fact that the evidence might also support a contrary conclusion is not sufficient to render
the plan administrator’s determination arbitrary and
capricious.” Hurse v. Hartford Life & Accident Ins. Co.,
77 F. App’x 310, 318 (6th Cir. 2003).
The administrative record in this case contained
more than adequate evidence for Sedgwick to conclude
that Avery was no longer totally disabled under the
terms of the Plan. First, Dr. Shavell examined Avery in
July 2014, and offered detailed observations that indicated “good range of motion,” “no evidence of any loss
of strength,” and a generally “normal exam.” A.R. 978.
From these findings, Dr. Shavell concluded, “I do not
App. 30
see any evidence of a regional complex pain issue. . . .
I do not find any physical evidence to substantiate at
this point any disability whatsoever.” A.R. 978-79.
Next, Sedgwick required Avery to report to Chrysler’s
plant medical department for an ability-to-work determination. There, the plant medical physician observed,
“[s]he is alert and oriented. . . . Right and left lower
legs—no stasis dermatitis. Normal dorsalis pedis pulse.
No pretibial edema. She walked without a limp.” A.R.
946. On that basis, the plant medical department determined that Avery could return to work with no restrictions.
Sedgwick then referred Avery’s claim to Dr. Hoenig for a file review. Dr. Hoenig reviewed Avery’s extensive medical records and concluded that after Avery’s
“spinal cord stimulator (SCS), she ha[d] a normal neurological exam” and was “not disabled from performing
any work as of 07/22/14.” A.R. 663. Finally, Sedgwick
initiated a voluntary re-review, referring Avery’s claim
to Dr. Friedman for another file review. Dr. Friedman
reviewed Avery’s medical records and concluded that
there was “no sufficient clinical evidence to support
any restrictions and limitations.” A.R. 601.
To be sure, Avery’s treating physicians repeatedly
diagnosed Avery with Complex Regional Pain Syndrome and venous insufficiency. But even when “the
evidence may be sufficient to support a finding of disability, if there is a reasonable explanation for the administrator’s decision denying benefits in light of the
plan’s provisions, then the decision is neither arbitrary
nor capricious.” Schwalm v. Guardian Life Ins. Co. of
App. 31
Am., 626 F.3d 299, 308 (6th Cir. 2010). And here, no
fewer than four physicians concluded that Avery is no
longer totally disabled. If this did not amount to “a reasonable explanation for the administrator’s decision,”
it would be difficult to say what would. In conclusion,
we find that substantial evidence supported Sedgwick’s decision to terminate Avery’s long-term disability benefits.
III
For the foregoing reasons, the district court’s judgment is affirmed.
App. 32
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 22-1960
JACQUELINE AVERY,
Plaintiff - Appellant,
v.
SEDGWICK CLAIMS MANAGEMENT
SERVICES, INC.; EXTENDED
DISABILITY BENEFIT OF THE
CHRYSLER GROUP LLC GROUP
INSURANCE PROGRAM,
Defendants - Appellees.
Before: McKEAGUE, GRIFFIN, and
MURPHY, Circuit Judges.
JUDGMENT
(Filed Jul. 24, 2023)
On Appeal from the United States District Court
for the Eastern District of Michigan at Port Huron.
THIS CAUSE was heard on the record from the
district court and was submitted on the briefs without
oral argument.
App. 33
IN CONSIDERATION THEREOF, it is ORDERED
that the judgment of the district court is AFFIRMED.
ENTERED BY ORDER OF
THE COURT
/s/ Deborah S. Hunt
Deborah S. Hunt, Clerk
App. 34
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JACQUELINE AVERY,
Plaintiff,
v.
Case No. 20-11810
SEDGWICK CLAIMS
MANAGEMENT SERVICES,
INC. and EXTENDED
DISABILITY BENEFIT OF
THE CHRYSLER GROUP LLC
GROUP INSURANCE PROGRAM,
Defendants.
/
OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR JUDGMENT ON
THE ADMINISTRATIVE RECORD AND DENYING
PLAINTIFF’S MOTION FOR JUDGMENT
(Filed Sep. 21, 2022)
Plaintiff Jacqueline Avery brings this action under
29 U.S.C. § 1132(a)(1)(B) of the Employee Retirement
Income Security Act of 1974 (“ERISA”) to recover benefits allegedly owed by Defendant FCA US LLC Long
Term Disability Benefit Plan (“Plan1”), as administered by Defendant Sedgwick Claims Management
Services, Inc. (“Sedgwick”). (ECF No. 1.) Currently
1
The parties identify this as the correct name of the plan
(ECF No. 4, PageID.17; ECF No. 27, PageID.1496.)
App. 35
before the court are the parties’ cross-motions for judgment. (ECF Nos. 27-28.) Having reviewed the briefs,
the court concludes that a hearing is not necessary. See
E.D. Mich. LR 7.1(e)(2). For the reasons stated below,
the court will grant Defendants’ motion and deny
Plaintiff ’s motion.
I.
BACKGROUND2
A.
The Plan
To provide long-term disability benefits to its eligible employees, FCA US, LLC (“FCA”)3 sponsored the
Plan and acts as the Plan Administrator. (AR 1203.)4
In this capacity, FCA has “the full and absolute authority to take all measures deemed necessary, appropriate
or useful to administer the Plan in accordance with its
terms and applicable law.” (AR 1212-13.) These include
“the power to determine eligibility.” (AR 1213.) FCA
may “allocate and delegate its responsibilities . . . [and]
employ such persons (including . . . TPAs [third-party
administrators]) as may be required to assist in administering the Plan.” (Id.) FCA may also “designate [a
TPA] to carry out fiduciary responsibilities under th[e]
Plan.” (AR 1212.) Sedgwick is the TPA who “processes
2
The court admonishes Plaintiff for her failure to “include
Proposed Findings and Conclusions . . . consisting of separate,
numbered paragraphs each of which states, reasonably [and] concisely, a separate material fact or conclusion” as required by the
court’s order. (ECF No. 8, PageID.48; ECF No.17, PageID.263.)
3
FCA is formerly named DaimlerChrysler Corporation.
4
“AR [page number]” refers to the pages in the sealed Administrative Record (ECF Nos. 20-25.)
App. 36
claims for the [Plan] pursuant to a service contract
with [FCA]”. (AR 1205; ECF No. 27, PageID.1503; ECF
No. 28, PageID.1572.)
Plaintiff was a Participant in the Plan. To be eligible for benefits, she must meet specified conditions, including that she must:
(e) be “totally disabled” because of disease or
injury so as during the first 24 months of
disability to be unable to perform the duties of the Participant’s occupation, and
after the first 24 months of disability be
unable to engage in regular employment
or occupation with [FCA].
(f ) apply for LTD benefits5 and furnish satisfactory proof of disability in accordance
with Section 4.02 . . . ; and
(g) Include satisfactory evidence that he or
she made proper application for all
“Other Income Benefits” described in Section 5.03.
(AR 1206.) Section 4.02 of the Plan provides: that
“[p]roof of the continuance of the disability must be furnished at such intervals as the TPA may reasonably
require.” (AR 1206.) Section 5.03 says that “[t]he Plan
5
Section 7.04 provides, “Any Participant shall be entitled to
file a written claim for benefits with the TPA setting forth the
benefits for which he or she feels entitled and the reason therefor.
If the TPA receives an oral claim for benefits, it shall advise such
individual to file a written claim . . . The TPA shall determine the
Participant’s rights to benefits within 90 days after receipt of the
written claim . . . ” (AR 1213.)
App. 37
Administrator or the TPA has the right to require as
part of the proof of claim for LTD benefits satisfactory
evidence of [information relating to Other Income Benefits].” (AR 1210.)
B.
Sedgwick’s Review of Plaintiff ’s Claim
Plaintiff worked for FCA until July 2011, at which
point she went on medical leave. (AR 180, 195; ECF
No. 1, PageID.3.) She applied for and received shortterm disability benefits.6 (AR 358.) When that ran out
in July 2012, Plaintiff made a claim for long-term disability benefits under the Plan.
As required by Sedgwick, Plaintiff applied for and
was eventually awarded benefits under the social security disability insurance (“SSDI”) program.7 (AR 42,
251, 255, 258-59, 585.) Thanks to this, in September
2012, the Plan recovered over $15,000 of claim payment previously made to Plaintiff. (AR 518, 544-45,
905.)
Sedgwick initially approved Plaintiff ’s claim for
benefits under the Plan in August 2012 “based on the
accepted, totally disabling condition(s) of Right Lower
Extremity Neuropathy & Reflex Sympathetic Dystrophy Lower Extremity.” (AR 1167.) Sedgwick possessed
the following documents, which apparently supported
6
It is not disputed that Sedgwick also processed Plaintiff ’s
short-term disability claim.
7
The Social Security Administration (“SSA”) administers
this program.
App. 38
Plaintiff ’s entitlement to benefits as of June 2, 2014
(AR 1055):
•
August 18, 2011 note of Plaintiff ’s visit to
Kingston Family Health Care (AR 345-49):
On that day, Plaintiff presented with lower
extremity pain previously diagnosed as neuropathy in lower right leg. (AR 345.) She was
diagnosed with “mononeuritis of lower limb.”
(AR 348.)
•
August 19, 2011 “Lower Extremity” form
signed by Darla Mays, PA-C (AR 351-56):
Plaintiff was certified as being disabled from
right leg neuropathy. (AR 351.)
•
October 14, 2011 report of the October 11,
2011 independent medical examination
(“IME”) with Dr. Hermann Banks, a boardcertified neurologist (AR 789-94): Dr. Banks
diagnosed Plaintiff with “[r]ight lower extremity pain with paresthesia and dysesthesia as described in addition to edema” and
confirmed the appeared presence of neuropathy. (AR 793.) Dr. Banks recommended that
Plaintiff remain off work for eight weeks with
the hope of identifying the origin of her edema
during that time. (Id.)
•
January 9, 2012 note of the January 4 visit for
leg pain with Dr. Michael Louwers and neurologist Dr. Ronald Wasserman at the University of Michigan Back and Pain Center (“U of
M”) (AR 313-15): Plaintiff was diagnosed with
complex regional pain syndrome type I in the
right leg. (AR 314.)
App. 39
•
January 19, 2012 report of an IME performed
that day by neurologist Dr. David Gaston (AR
297-303): Dr. Gaston diagnosed Plaintiff with
“Complex Regional Pain Syndrome Type II in
view of the associated peripheral neuropathy.”
(AR 302). Plaintiff was found “disabled . . . for
approximately 4 months.” (AR 303.)
•
May 9, 2012 “Lower Extremity” form signed by
Dr. Robert Brengel, Plaintiff ’s primary care
doctor whose specialty is family medicine (AR
227-29, 691-695): Dr. Brengel indicated that
Plaintiff was disabled from “Complex Regional
Pain Syndrome/Reflex Sympathetic Dystrophy” with co-morbid conditions being obesity,
depression, osteopenia, and dyslipidemia. (AR
227, 691.) Enclosed were notes of Plaintiff ’s
visits to U of M on April 2 and 9, 2012, which
remarked improvements and reduced pain after the catheter insertion to Plaintiff ’s leg on
March 12, 2012 (AR 696-703.)
•
June 26, 2012 “General Diagnosis” form
signed by Dr. Brengel (AR 227-29): Dr. Brengel
indicated the same diagnoses as on May 9
form. (AR 227.) Enclosed were Dr. Brengel’s
handwritten notes, records of Plaintiff ’s visits
to U of M on April 2 and 30, 2012, and an
outpatient chemical and pain medication
management consultation with Dr. Herbert
Malinoff on June 12, 2012. (AR 230-49.) The
notes of the April 30 visit indicated that Plaintiff had not been doing well and her pain had
returned after the catheter was removed on
April 9. (AR 238-39.)
App. 40
•
September 10, 2012 and January 8, 2013 “General Diagnosis” forms signed by Dr. Brengel
(AR 819-24, 1146-48): Dr. Brengel identified
“Complex Regional Pain Syndrome” as Plaintiff ’s disabling diagnosis with co-morbid conditions of depression, opiate dependence, and
obesity. (AR 819, 1146.)
•
February 6, 2013 note of Plaintiff ’s visit that
day with Dr. Matthew Wixson and Dr. Wasserman at U of M (AR 1107-1110): On that day,
Plaintiff reported over 90 percent pain improvement and having weaned off oxycodone.
(AR 1108.)
•
March 4, 2013 note of a follow up visit on that
day with Dr. Golshid Tazhibi and Dr. Wasserman at U of M (AR 1104-06): Then, Plaintiff
reported “80% relief of her pain.” (AR 1105.)
•
June 4, 2013 note of visit with Dr. Majed A.
Nounou, a cardiologist (AR 1099-1100): Plaintiff complained of pain, numbness, tingling,
and swelling in her right lower leg. (AR 10991100.) Dr. Nounou ordered a venous mapping
and diagnosed Plaintiff with venous insufficiency, varicose veins of lower extremities,
obesity, depressive disorder, hypertension,
pain in limb, and edema. (AR 1100.)
•
June 4, 2013 “Lower Extremity” form signed
by Dr. Brengel (AR 827-30): Dr. Brengel certified “Complex Regional Pain Syndrome” as
Plaintiff ’s disabling diagnosis with obesity as
the co-morbid condition. (AR 827.)
App. 41
8
•
June 24, 2013 report of a “Bilateral Lower
Extremity Venous Study,” ordered by Dr. Wasserman and reviewed by Dr. Shaun Gabriel
(AR 843-44); Plaintiff presented with “[right
lower extremity] chronic pain and swelling.”
(AR 843.) The preliminary review of the imaged veins on both legs ruled out deep vein
thrombosis but revealed evidence of reflux.
(AR 843-44.)
•
August 12, 2013 note of a follow-up visit with
Dr. Nounou (AR 845-49): Dr. Nounou confirmed that Plaintiff ’s “venous mapping
showed severe bilateral greater saphenous venous insufficiency” with “more symptoms on
the right.” (AR 846.) Dr. Nounou suggested
(and eventually performed8) an endovenous
ablation procedure on Plaintiff ’s right leg.
(AR 847.)
•
January 1, 2014 “Lower Extremity” form
signed by Dr. Brengel (AR 837-40): Dr. Brengel
certified that Plaintiff was disabled by Reflex
Sympathetic Dystrophy in right leg and had
co-morbid conditions of obesity, lumbar
radiculopathy, and peripheral vascular insufficiency. (AR 837.)
•
April 24, 2014 “Certificate of Continuous Disability” signed by Plaintiff (AR 864-65): Plaintiff identified her disabling conditions as
“Complex Regional Pain Syndrome & Venous
reflux disease.” (AR 864.) She described her
limitations as being “unable to stand for
This procedure was performed on February 12, 2014. (AR
880-81.)
App. 42
longer than 10 minutes, walk for more than
500 feet, [and] knee[;] bending cannot be done
without excessive swelling or chronic pain [;
and] [c]oncentrating is very difficult to do [due
to] [c]hronic pain meds.” (Id.)
•
April 17, 2014 note of a visit with Dr. Nounou
to follow up on the right leg ablation (AR
1072-74): Dr. Nounou decided to wait on the
ablation procedure on the left leg and discussed the possibility of ablating below the
knee of the right leg based on venous mapping
results. (AR 1074.)
•
May 21, 2014 “Lower Extremity” form signed
by Dr. Brengel (AR 988-91, 1057-60): Dr.
Brengel indicated that Plaintiff was disabled
by reflex sympathetic dystrophy in her right
leg and had co-morbid conditions of leg pain,
obesity, lumbar radiculopathy, and peripheral
vascular insufficiency. (AR 988, 1057.)
On June 11, 2014, Sedgwick received an email
from FCA’s Corporate Investigations, which indicated
that Plaintiff was seen driving – which she was medically restricted from doing – and suspected with running a business out of her home. (AR 935-36.) This
prompted Sedgwick’s request that Plaintiff undergo an
IME with Dr. Joel Shavell, board certified in internal
medicine and rheumatology, for an evaluation of her
neuropathy and reflex sympathetic dystrophy in the
right leg diagnoses. (AR 975-79.)
App. 43
Dr. Shavell examined Plaintiff on July 15, 2014.9
(AR 975.) He took Plaintiff ’s medical history, reviewed
her medical records,10 and performed a physical examination of Plaintiff. (AR 975-78.) During the physical
examination, Dr. Shavell noticed Plaintiff “walked in
quickly with a normal gait and had no problems getting undressed, . . . getting in and out of the room[,] . . .
moving, and . . . functionally.” (AR 977.) Dr. Shavell described his findings in his report:
Lower extremities revealed no pain, good
range of motion of the hips, knees, ankles and
feet, no swelling, no redness, no warmth, and
no coldness. A normal exam is noted. At the
onset of the physical examination, as I was
taking a pressure, she was able to fold her
knees and legs under her like a Buddha position on the table, and was then able to get up
quickly from a supine position, without any
weakness or loss of strength in the lower or
upper extremities. I also measured her calf,
which was one inch from the inferior patella;
the right leg was 19 and the left leg was 18, no
real significant abnormality. Neurologically,
Romberg revealed she was able to balance
herself, she walked herself, she started to
9
On that day, FCA also scheduled a surveillance of Plaintiff
at Dr. Shavell’s office. (AR 940.)
10
These included: “plant notes,” “notes from Marlette Regional Hospital,” an Attending Physician Statement, signed by
Robert Brengel, D.O.,” “progress notes from Robert Brengel, D.O.,”
notes from the Heart & Vascular Institute of Michigan, Majed A.
Nounou, M.D.,” and “records from University of Michigan Health
System, Ronald Arthur Wasserman, M.D.” (AR 976-77.)
App. 44
walk on her heels and toes, of course she is
very heavy, and could not do this for a long
time, but she was able. There was absolutely
no evidence of any loss of strength. I then
checked her grossly for any neurological deficits in her lower extremities, and there were
no significant neurological deficits. She did
have a slightly hyporeflexic knee on the right;
however, I did not pursue it because the
strength in her legs was more than adequate.
The range of motion on the knees was adequate and there were no indications that she
had any neurological. Again, I would like to
note that it is my opinion that the ability to
sit perpendicularly on the examination table
with feet and legs turned in cannot be performed with complex pain syndrome, for
which she has had treatment in Ann Arbor.
(AR 978.)
Dr. Shavell concluded that he did not see any evidence of a regional complex pain issue because Plaintiff exhibited no normal symptom thereof. (Id.) He
attributed the swelling of the leg to Plaintiff ’s obesity
“because tissue compresses on vein and vein w[ould],
at times, cause swelling of the leg.” (Id.) He emphasized the fact that Plaintiff could bear weight on her
ankle, heels, and toes despite her weight. (AR 979.)
Ultimately, Dr. Shavell opined that Plaintiff ’s disability was unsubstantiated and that she could return to
full duty immediately. (Id.)
On July 17, 2014, Plaintiff saw Dr. Nounou for venous mapping results. (AR 970-72.) Plaintiff presented
App. 45
complaints of pain and edema in both legs and feet
(worse in the right), numbness in her toes, and burning
sensation in her ankles. (AR 970.) No diagnosis was
discussed at this visit and no specified plan of care was
recorded. (AR 970, 972.)
After receiving Dr. Shavell’s report, on July 21,
2014, Sedgwick sent a letter to Plaintiff to inform her
that the IME found her capable of working. (AR 974.)
The letter directed Plaintiff to come to the medical department in her worksite to be evaluated for returning
to work and said that her benefits “may be suspended
effective July 21, 2014 pending the outcome of the ability to work examination.” (Id.)11 Sedgwick also called
Plaintiff, and in response to the request that she undergo an evaluation at work, Plaintiff said that she had
been in bed for three days and could not drive. (AR
943.)12
Nonetheless, on July 22, 2014, Plaintiff showed up
to the onsite examination as requested. (AR 945.) The
plant nurse saw Plaintiff walking in by herself with
steady gait. (Id.). According to the plant doctor, Plaintiff was alert, oriented, and calm in the waiting room,
11
On the same day, Sedgwick “backed down [Plaintiff ’s] benefits based on IME results” to July 21, 2014 and removed the July
25, 2014 scheduled payment. (AR 943.)
12
While Defendants argue that “[a]t that point, Sedgwick
had not issued a determination on Plaintiff ’s continued eligibility
for LTD Plan benefits (rather, Sedgwick had only advised her . . .
that she was to work for a determination of her ability to work)”
(ECF No. 28, PageID.1579-80), the claim notes marked July 21,
2014 as “[d]enial letter date.” (See AR 950.)
App. 46
but appeared anxious in the exam room, which she attributed to pain. (Id.) An examination of Plaintiff ’s
lower right and left legs revealed no stasis dermatitis,
normal dorsalis pedis pulse, and no pretibial edema.
(Id.) Additionally, she was seen walking without a
limp. (Id.)
Also on July 22, 2014, Plaintiff received Dr.
Shavell’s IME report, which she told Sedgwick was
“bold face lies.” (AR 944.) Plaintiff stated that her
home health workers could verify that “she is in bed
more than not.” (Id.) In response to Plaintiff ’s inquiry
into an appeal, Sedgwick told her to “submit a letter
substantiating her dispute of the exam,” which would
be forwarded to the “Appeal unit.” (AR 945.)
On July 28, 2014, Plaintiff submitted a letter “to
appeal [her] recent return to work decision.” (AR 96472.) Therein, she provided an overview of her medical
history, ending with her last visit with Dr. Nounou on
July 17, 2014. (AR 964.) She explained that she had not
been coming to see her neurologist at U of M because
she was “trying to take care of the secondary issue of
venous insufficiency,” but once it was resolved, she
would resume the neurology treatment. (Id.) Further,
Plaintiff made specific challenges to Dr. Shavell’s
statements and findings in his report. (AR 964-65.)
Plaintiff included with her letter several documents:
(1) a list of past appointments at U of M, the latest being July 8, 2013 with Dr. Wasserman (AR 967), (2) a
report of the bilateral lower extremity venous study on
June 24, 2014 (AR 968-69), and (3) the note of her visit
on July 17, 2014 with Dr. Nounou (AR 970-72).
App. 47
On August 4, 2014, Sedgwick sent Plaintiff a letter
to “acknowledge receipt of [her] request for appeal of
Long Term Disability Benefit” and informed her that
her “appeal was received by Sedgwick on July 30,
2014.” (AR 957.) Sedgwick further indicated that
Plaintiff ’s “request for appeal of denied extended disability benefits will be reviewed by [its] Appeals Units
and [she] will receive a written response by September
13, 2014.” (Id.)
On August 8, 2014, Sedgwick called Plaintiff to
ask if she was planning on providing any additional
information, which she responded “no.” (AR 949.) Also
on that day, Sedgwick reviewed its files and noted as
“[d]iscrepancies, errors, issues” the facts that there was
“no denial [letter] outlining the reason for denial or
with appeal rights” and “the letter [sent to Plaintiff ]
only request[ed] that [she return to work].” (AR 950.)
Another note entry identified “issue[s]” of “letter on file
notes suspension of benefits, not denied” and “no appeal rights included in the letter.” (AR 951.)
On August 20, 2014, a longer letter was prepared,
restating that Plaintiff no longer satisfied the eligibility requirement based on her IME result. (AR 954-55.)
The letter directed Plaintiff to report to FCA’s Human
Resources department for an evaluation of her ability
to return to work, and said that pending its outcome,
her benefits “may be terminated effective July 21,
2014.” (Id.) The letter then informed Plaintiff of her
right to appeal within 180 days by submitting a written request with additional comments, documents, or
records relating to her claim. (Id.) She was also told of
App. 48
her right to request a copy of the documents, records,
or other information in Sedgwick’s possession that
were relevant to her claim. (Id.)
On August 25, 2014, Sedgwick called Plaintiff advising her of the August 20 letter, which was sent that
day. (AR 452.) Sedgwick told her that she would not
need to report to Human Resources. (Id.) Sedgwick
then confirmed with Plaintiff that her claim was still
on appeal. (AR 453.)
As part of the appeal process, Sedgwick consulted
with Dr. David Hoenig, a board-certified neurologist,
for an independent record review (“IRR”) on September 4, 2014. (AR 660-64.) After unsuccessfully attempting to discuss with Dr. Nounou and going through
numerous medical records, Dr. Hoenig opined that
Plaintiff was not disabled from performing work as of
July 22, 2014. (Id.) He elaborated, “The last neurological exam in the medical record is from February 2,
2013. After her spinal cord simulator (SCS), [Plaintiff ]
has a normal neurological exam.” (AR 663.) However,
Dr. Hoenig affirmed that Plaintiff had neurological deficits from complex regional pain syndrome between
July 21, 2011 and February 6, 2013, during which she
would require work restrictions. (Id.)
On September 12, 2014, Sedgwick sent Plaintiff a
letter indicating that her appeal was denied. (AR 65859.) The letter said that the review included medical
documentation from Plaintiff ’s treating sources and
independent medical examiners (AR 658.) It also informed Plaintiff of Dr. Hoenig’s IRR, his unsuccessful
App. 49
attempts to speak with Dr. Nounou, and his conclusion
and rationale. (AR 658-69.) The letter ended with the
advisement of “the Claim Administrator’s final decision” and Plaintiff ’s rights to sue and access her records. (Id.)
Eight months later, on May 18, 2015, Plaintiff ’s
attorney sent a letter to Sedgwick demanding that
Plaintiff ’s benefits be “immediately [and] retroactively” reinstated. (AR 654.) Enclosed thereto was a
letter from Dr. Brengel dated April 15, 2015, which disputed Dr. Shavell’s findings. (AR 655.) Dr. Brengel also
indicated that Plaintiff “had an EMG performed by K.
Fram, M.D., in December of 2014 and ongoing treatment from that point.” (Id.) He then relayed that “Dr.
Fram believe[d] that [Plaintiff ] ha[d] reflex sympathetic dystrophy in her right lower extremity by history, chronic S1 radiculopathy bilaterally, severe
peripheral polyneuropathy, and bilateral tarsal tunnel
syndrome.” (Id.) Dr. Brengel concluded that Plaintiff
“remain[ed] disabled due to the difficulties with her
right leg.” (Id.)
On July 8, 2015, Sedgwick sent a letter informing
Plaintiff that her claim was “under re-review” and that
she can submit additional medical information by July
28, 2015. (AR 651.) No additional information was provided. However, Plaintiff claims that she never received this letter because it was sent to an outdated
address. (ECF No. 29, PageID.1607.)
For the re-review, Sedgwick obtained a new IRR
by neurologist Dr. Mark Friedman. (AR 599-602). On
App. 50
August 6, 2015, Dr. Friedman opined that Plaintiff was
not disabled from performing any work as of July 22,
2014 “[b]ased on the clinical objective evidence” in
Plaintiff ’s medical documentation up until July 2014.
(AR 601.) On September 16, 2015, having reviewed
Dr. Brengel’s April letter, Dr. Friedman held to his previous determination, reasoning that the letter “did not
include any new examination findings or results of the
testing.” (AR 595.)
By a letter dated September 30, 2015 to Plaintiff ’s
attorney, Sedgwick indicated that the discontinuation
of Plaintiff ’s benefits was upheld. (AR 592-93.) The letter enumerated the reviewed medical documentation,
described Dr. Friedman’s IRR, his discussion with a
nurse at Dr. Nounou’s office, and his findings of no
clinically supported disability after July 22, 2014. (Id.)
Plaintiff was given an opportunity to appeal this updated determination, but she did not do so. (Id.)
II.
STANDARD
The court must first decide what standard of review applies. Plaintiff argues that a de novo standard
applies because (1) the Plan does not “appear on its
face to grant [ ] discretion to Sedgwick” and “it is not
clear that a decision by Sedgwick is entitled to differential review”, and (2) “it is indisputable in this case
that Sedgwick did not comply with the Department of
Labor claims regulations.” (ECF No. 27, PageID.1527.)
Defendants challenge these contentions, maintaining
App. 51
that the court should conduct its review using the
arbitrary and capricious standard.
A.
Grant of Discretion
“A federal court considering a [denial of benefit]
claim [under § 1132(a)(1)(B)] starts with the presumption that it should review the administrator’s denial of
benefit de novo. If, however, the terms of the plan give
the administrator discretionary power to make benefits decisions, the court reviews the administrator’s denial under a differential arbitrary-and-capricious
standard.” Card v. Principal Life Ins. Co., 17 F.4th 620,
624 (6th Cir. 2021) (internal citations omitted). The
Sixth Circuit “ ‘has consistently required that a plan
contain a clear grant of discretion’ to the administrator
or fiduciary before applying the deferential arbitrary
and capricious standard.” Frazier v. Life Ins. Co. of N.
Am., 725 F.3d 560, 566 (6th Cir. 2013) (emphasis in
original) (citing Perez v. Aetna Life Ins., 150 F.3d 550,
555 (6th Cir. 1998)). But no “magic words” are necessary, id., and “[t]he mere fact that language could have
been clearer does not necessarily mean that it is not
clear enough,” Perez, 150 F.3d at 558 (citing Yeager v.
Reliance Standard Life Ins. Co., 88 F.3d 376, 381 (6th
Cir. 1996)).
Here, the court finds that Sedgwick is “a fiduciary
to whom [FCA] granted discretion for the more lenient
standard to apply.” Frazier, 725 F.3d at 566. A plan
“may expressly provide for procedures for allocating
fiduciary responsibilities.” Id. (citing 29 U.S.C.
App. 52
§ 1105(c)(1)). Plaintiff concedes that “[t]here is no dispute that [the] Plan grants the ‘Plan Administrator’ to
determine eligibility for benefits, [and] the Plan Administrator . . . is FCA.” (ECF No. 27, PageID.1527.) As
Defendants point out, the Plan authorizes FCA to delegate “fiduciary responsibilities” to a TPA to interpret
the Plan and determine the eligibility for benefits
thereunder. (ECF No. 28, PageID.1585-86.)13 Here, the
record shows, and it is undisputed,14 that FCA delegated its claim administration function to Sedgwick.
See Lee v. MBNA Long Term Disability & Benefit Plan,
136 F. App’x 734, 742 (6th Cir. 2005) (holding that if the
plan grants the plan administrator discretionary authority and the plan administrator “properly designates another fiduciary” to exercise that discretion,
then the arbitrary and capricious standard applies to
the decisions of both the plan administrator and the
designated third party).
Contrary to Plaintiff ’s contention, the grant of discretion to the TPA – Sedgwick – is clear from the Plan’s
language. For example, to be eligible for benefits, a Participant must “apply . . . and furnish satisfactory proof
of disability in accordance with Section 4.02,” which
provides that “[p]roof of the continuance of the disability must be furnished at such intervals as the TPA may
reasonable require.” (AR 1206.) The Participant must
13
The Plan expressly shields the Plan Administrators from
any liability “for an act or omission of the person(s) to whom any
duties are delegated.” (AR 1211.)
14
Plaintiff has consistently described Sedgwick as “the claim
administrator” of the Plan. (See e.g., ECF No. 27, PageID.1503.)
App. 53
also “include satisfactory evidence that [ ] she made
proper application for all ‘Other Income Benefits’ described in Section 5.03,” and that section specifies that
“[t]he TPA “has the right to require as part of the proof
of claim for LTD benefits satisfactory evidence” of other
income benefits (AR 1206, 1210.)15 Courts in the Sixth
Circuit have routinely held that this sort of language
granted discretion to the claim administrators. Perez,
150 F.3d at 556 (holding that the language in the Plan
allowing the defendant to request satisfactory evidence, review it, and make a benefit determination
clearly granted discretion); Yeager, 88 F.3d at 380-81
(holding that the plan’s requirement that claimant
submit “satisfactory proof of Total Disability to us” was
sufficient grant of discretion to warrant application of
arbitrary and capricious standard of review); Miller v.
Metro. Life Ins. Co., 925 F.2d 979, 983 (6th Cir.1991)
(granting discretion “on the basis of medical evidence
satisfactory to the Insurance Company”); Leeal v.
Cont’l Cas. Co., 17 F. App’x 341, 343 (6th Cir. 2001) (upholding the district court’s finding that discretionary
authority was conferred based on language about
written proof of loss, time payment of claim, and particularly the requirement that claimant submit “due
written proof of loss” to receive benefit); Fendler v. CNA
Grp. Life Assur. Co, 247 F. App’x 754, 759 (6th Cir. 2007)
(“Our circuit has repeatedly held that this “due
proof ” language confers discretion on the claims
15
The Plan also provides that “a decision on any matter
within the discretion of the . . . TPA . . . shall be binding on all
Participants.” (AR 1214.)
App. 54
administrator to determine what type of proof is ‘due,’
such that the court must apply the arbitrary and capricious standard of review.”) (citation omitted); Zack
v. McLaren Health Advantage, Inc., 340 F. Supp. 3d
648, 656 (E.D. Mich. 2018) (Berg, J.) (“This Circuit has
interpreted language involving ‘proof of loss’ as indicating the claims administrator to whom a participant
is instructed to submit that ‘proof of loss’ has full discretion to administer the plan.”); Weathers v. Mutual of
Omaha Ins. Co., No. 2:08-cv-14788, 2009 WL 1620417
(E.D. Mich. Jun. 9, 2009) (Cleland, J.) (holding that the
language of the Plan stating that benefits for loss will
be paid “upon receipt of due written proof ” and reserving the right to “make a decision” only after the plan
administrator receives “information necessary to evaluate the claim” vested discretion).
B.
Procedural Errors
Plaintiff also argues that the de novo standard
applies because Sedgwick failed to comply with the
Department of Labor (“DOL”) claim-procedure regulations. (ECF No. 27, PageID.1527.)16 The court notes
that the Sixth Circuit has not issued a clear guidance
on whether the de novo standard applies in a case involving procedural deficiencies, but at least two district
16
Plaintiff does little to develop this argument in the “Standard of Review” section of her motion. (ECF No. 27, PageID.1527.)
However, the court presumes that the alleged “indisputable” nonconformances to the DOL’s claims-procedure regulation in support of the de novo standard are the same as those later presented
in her brief. (ECF No. 27, PageID.1527, 1529-33.)
App. 55
courts’ opinions, which were highly regarded on appeal, have adopted this rule.17 But in any case, Plaintiff
has previously had a full opportunity to assert procedural challenges. (ECF Nos.8, 9, 14.) On December 4,
2020, she filed a “Statement of Procedural Challenge”
claiming ten errors that supposedly prevented her
from getting a “full and fair review of her claim.” (ECF
No. 9, PageID.52.) Defendants then moved the court to
reject Plaintiff ’s statement and responded to the deficiencies alleged by Plaintiff in details. (See ECF No.
12.) In turn, Plaintiff conceded that some of the points
she had raised were not procedural, but were substantive challenges. (ECF No. 14, PageID.180.) She then
focused her arguments on only two contentions, which
led the court to assume that she had conceded the
others. (Id., PageID.179-80; ECF No. 16, PageID.255.)
17
In Bustetter v. Standard Ins. Co., 529 F. Supp. 3d 693 (E.D.
Ky. 2021), the Eastern District of Kentucky noted the lack of clear
guidance from the Sixth Circuit and said that “until the Sixth Circuit provides additional guidance, . . . [it] will follow the prevailing view in the circuits and apply de novo review for violation of
the 2002 version of the regulations.” Id. at 703. The Sixth Circuit
affirmed Bustetter and applauded it as a “notably thorough and
well-reasoned opinion.” Bustetter v. Standard Ins. Co., No. 215441, 2021 WL 5873159, at *1 (6th Cir. Dec. 13, 2021). In Myers
v. Iron Workers Dist. Council of S. Ohio & Vicinity Pension Tr.,
No. 2:04-CV-966, 2005 WL 2979472, at *6 (S.D. Ohio Nov. 7,
2005), the Southern District of Ohio also applied the de novo
standard of review “[c]onsidering the conflicting and potentially
changing law on the subject of what standard of review applies in
a case involving the procedural deficiencies.” Id. at *6. The Sixth
Circuit adopted the reasoning in Myers’ “comprehensive and wellreasoned opinion.” Myers v. Iron Workers Dist. Couns. of S. Ohio
& Vicinity Pension Tr., 217 F. App’x 526 (6th Cir. 2007).
App. 56
One of Plaintiff ’s unabandoned challenges was
Defendants’ alleged failure to properly notify her of the
initial benefit discontinuation and give her a reasonable opportunity to appeal. (ECF No. 16, PageID.255.)
In its September 14, 2021 opinion and order, the court
found that Plaintiff did not present a meaningful procedural defect with the notification and appeals process. (ECF No. 16, PageID.256-58.) Despite this,
Plaintiff ’s motion now asserts the same arguments
(ECF No. 27, PageID.1531, 1533). The law-of-the-case
doctrine mandates that “findings made at one point in
the litigation become the law of the case for subsequent
stages of that same litigation.” Rouse v. DaimlerChrysler Corp. UAW, 300 F.3d 711, 715 (6th Cir.2002). “The
doctrine also bars challenges to a decision made at a
previous stage of the litigation which could have been
challenged in a prior appeal, but were not.” Id. If Plaintiff thought the court had been misled in finding no
procedural error with the notification and appeals of
her claim, she should have challenged the ruling at
that time by moving to reconsider or seeking an appeal. But Plaintiff did not do so. That finding became
the law of the case as of September 14, 2021, and the
court will not revisit it here since Plaintiff has not
persuasively presented any “extraordinary circumstances” warranting a revisitation.18 Christianson v.
Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988).
18
For example, Plaintiff ’s reply brief ostensibly asserts
that the court erroneously analogized this case to Kent v. United
of Omaha Life Ins. Co., 96 F.3d 803 (6th Cir. 1996), because
“Kent predates the adoption of the Department of Labor
App. 57
Plaintiff also asserts as a procedural deficiency
Sedgwick’s “fail[ure] to ‘consult with a health care professional who has appropriate training and experience
in the field of medicine involved in the medical judgment’ . . . when it relied on Dr. Shavell’s report for its
July 21, 2014 denial.” (ECF No. 27, PageID. 1532). This
contention has already been waived with Plaintiff
making no passable effort to address it in responding
to Defendants’ motion to reject her procedural challenge statement. (See ECF No. 16, PageID.253.) Besides, it is not a valid point. The requirement of a
“consult[tation] with a health care professional who
has appropriate training and experience in the field of
medicine” only applies “in deciding an appeal of any
adverse benefit determination.” 29 C.F.R. § 2560.5031(h)(iii). Here, in determining Plaintiff ’s appeal, Sedgwick consulted with Dr. Hoenig, a board-certified neurologist, whose specialty is undisputedly appropriate
in this instance.
claims-procedure regulation.” (ECF No. 29, PageID.1601.) This
contention is misplaced; the Kent court specifically described the
notice requirement in the “regulation codified at Title 29 Code of
Federal Regulation Section 2560.503-1”:
These regulations specify that a fiduciary shall establish a claim procedure which informs a claimant of a
denial of a claim within 90 days of receipt of the claim.
The regulations further specify that the procedure
should inform the claimant of the specific reasons for
denial of the claim including pertinent plan provisions
relating to the denial, and should inform the claimant
of his or her right to seek review of the claim decision.
Kent, 96 F.3d at 806.
App. 58
In her reply, Plaintiff also notes how her surveillance was omitted from the administrative record.
(ECF No. 29, PageID.1602.) This contention has already been raised in this case, though it was not one of
Plaintiff ’s original alleged errors (ECF No. 9; see ECF
No. 16, PageID.253-54.) Instead, Plaintiff brought this
argument up in response to Defendant’s motion to reject her procedural challenge statement. (ECF No. 14,
PageID.180.) While Plaintiff now makes a more substantial effort in elaborating this point, it fails for the
same reason the court gave on September 14, 2021.
(ECF No. 16, PageID.255-56, n.2.) That is, Plaintiff still
does not articulate what ERISA procedural protection
was violated by her surveillance not being included in
the administrative record. (Id.)
Accordingly, Plaintiff has failed to advance any
substantial procedural defect to support a de novo review of Defendants’ decision.19
19
For this reason, remand is not an appropriate remedy in
this case. See Moore v. Lafayette Life Ins. Co., 458 F.3d 416, 436
(6th Cir. 2006) (“[A]dministrators need only substantially comply
with . . . ERISA notice requirements in order to avoid remand.”)
(citation omitted. But even if there was a substantial procedure
error, the court notes that remand would only constitute a “useless formality.” Duncan v. Minnesota Life Ins. Co., 845 F. App’x
392, 402–03 (6th Cir. 2021). As explained below, Plaintiff had ample opportunity to submit additional evidence to substantiate her
claim of disability after July 2014, and Defendants invited her to
submit that evidence. Plaintiff also had the opportunity to submit
evidence in support of her procedural challenges, yet she has
never provided, or even suggested what new evidence could have
been provided that would warrant a reversal of Defendants’ decision.
App. 59
C.
Arbitrary and Capricious Standard
With the Plan granting Sedgwick discretionary
authority and no showing of any meaningful procedural error, the arbitrary and capricious standard of
review applies. “Under this deferential standard, when
it is possible to offer a reasoned explanation, based on
the evidence for a particular outcome, that outcome is
not arbitrary or capricious.” Cox v. Standard Ins. Co.,
585 F.3d 295, 299 (6th Cir. 2009); Williams v. International Paper Co., 227 F.3d 706, 712 (6th Cir. 2000) (citation omitted). The court must uphold the
administrator’s decision “if it is the result of a deliberate, principled reasoning process and if it is supported
by substantial evidence,” even if the evidence could
support a finding of disability. Baker v. United Mine
Workers of Am. Health & Ret. Funds, 929 F.2d 1140,
1144 (6th Cir. 1991); Schwalm v. Guardian Life Ins. Co.
of Am., 626 F.3d 299, 308 (6th Cir. 2010).
However, even with the high deference, “federal
courts do not sit in review of the administrator’s decisions only for the purpose of rubber stamping those
decisions.” Moon v. Unum Provident Corp., 405 F.3d
373, 379 (6th Cir. 2005); accord, e.g., Kramer v. Paul Revere Life Ins. Co., 571 F.3d 499, 507 (6th Cir. 2009). The
court is guided by “[s]everal lodestars . . . : the quality
and quantity of the medical evidence; the existence of
any conflicts of interest; whether the administrator
considered any disability finding by the Social Security
Administration; and whether the administrator contracted with physicians to conduct a file review as opposed to a physical examination of the claimant.” Shaw
App. 60
v. AT & T Umbrella Ben. Plan No. 1, 795 F.3d 538, 547
(6th Cir. 2015) (quotation marks and citation omitted).
Generally, “a court may consider only the evidence
available to the administrator at the time the final decision was made.” Id.
Plaintiff bears the burden of proving that Defendants’ denial of her benefits was arbitrary and capricious. Farhner v. United Transp. Union Discipline
Income Prot. Program, 645 F.3d 338, 343 (6th Cir.
2011).
III.
DISCUSSION
Plaintiff argues that the discontinuation of her
benefits as of July 2014 was arbitrary and capricious
because (1) Sedgwick ignored the SSA decision awarding SSDI benefits to Plaintiff (ECF No. 27,
PageID.1534-36), (2) Sedgwick ignored information
submitted by Plaintiff ’s treating physicians, but instead relied heavily on non-treating physicians’ conclusions without an actual neurological exam. (Id.,
PageID.1536-39, 1541-44), and (3) Sedgwick ignored
Plaintiff ’s comments regarding Dr. Shavell’s IME and
report (Id, PageID.1539-41). The court addresses these
contentions in turn and finds that Defendants’ decision
was not arbitrary and capricious.
A.
SSA Disability Determination
“An ERISA plan administrator’s failure to address
the Social Security Administration’s finding that the
App. 61
claimant was “totally disabled” is [a] factor that can
render the denial of further long-term disability benefits arbitrary and capricious.” Glenn v. MetLife, 461
F.3d 660, 669 (6th Cir. 2006). In Bennett v. Kemper
National Services, Inc., 514 F.3d 547 (6th Cir. 2008), the
Sixth Circuit said:
if the plan administrator (1) encourages the
applicant to apply for Social Security disability payments; (2) financially benefits from the
applicant’s receipt of Social Security; and then
(3) fails to explain why it is taking a position
different from the SSA on the question of disability, the reviewing court should weigh this
in favor of a finding that the decision was arbitrary and capricious.
Id. at 553. “It is not necessary, however, that the plan
administrator expressly distinguish a favorable SSA
determination in denying disability benefits under the
plan.” Leffew v. Ford Motor Co., 258 F. App’x 772, 779
(6th Cir. 2007) (citing Whitaker v. Hartford Life & Accident Ins. Co., 404 F.3d 947, 949 (6th Cir. 2005)).20
Undisputedly, Sedgwick required Plaintiff to apply for SSDI benefits, in compliance of which she did
and was eventually granted disabled status by the SSA
in August 2012. (AR 995.) After Plaintiff was awarded
SSDI benefits, the Plan benefited financially: in addition to reducing its prospective financial burden (see
20
Plaintiff has conceded that the version of the claim-procedure regulation in effect in 2014 does not explicitly require a
denial of benefits notification o address a contrary SSA’s determination. (ECF No. 14, PageID.178.)
App. 62
AR 1209), it recouped over $15,000 previously paid to
Plaintiff (AR 518, 544.) Sedgwick did not explain in
any of its denial letters to Plaintiff why it took a different position that what was adopted by the SSA. (AR
592-93, 656-57, 883-84, 974.) Accordingly, under Bennett, the court “should weigh this in favor of a finding
that the decision was arbitrary and capricious.” 514
F.3d at 553. However, this does not mean that the failure to explain the decision is arbitrary and capricious
per se. Morris v. Am. Elec. Power Long-Term Disability
Plan, 399 F. App’x 978, 986 (6th Cir. 2010) (“[T]he language of Bennett indicates that a failure to take into
account a Social Security disability award is to be
weighed in favor of a finding that the decision was arbitrary and capricious, not that such a decision is arbitrary and capricious per se.”) (emphasis in original).
Although the dissonance with the SSA’s decision
weighs against Defendants, that weight is not enough
to tip the scale in Plaintiff ’s favor in this case. First,
there is no information on the SSA’s determination of
Plaintiff ’s disability, and this determination was made
two years before Sedgwick decided to discontinue
Plaintiff ’s benefits. See Cox, 585 F.3d at 303. Additionally, as indicated below, Plaintiff fails to show that the
process and substance of Sedgwick’s review warrants
a finding that its decision was arbitrary and capricious.
See Wooden v. Alcoa, Inc., 511 F. App’x 477, 485 (6th Cir.
2013) (upholding the defendant’s decision to terminate
the plaintiff ’s benefit because even though the defendant’s cavalier treatment of the SSA’s determination
weighed in favor of finding that the defendant was
App. 63
arbitrary and capricious, the review of the medical
evidence and the conflict of interest did not); Hurse v.
Hartford Life and Accident Ins. Co., 77 F. App’x 310,
318 (6th Cir.2003) (finding that the mere fact that the
defendant’s conclusion “differs from that of the ALJ
does not make it arbitrary and capricious” when “[t]he
medical evidence . . . was clearly susceptible to opposite conclusions as to the nature of [the plaintiff ’s]
disability”); Stano v. Lumbermens Mut. Cas. Co., No.
06-CV-10842-DT, 2007 WL 171601, at *5 (E.D. Mich.
Jan. 18, 2007) (Cleland, J.) (“Even if Defendant completely failed to consider the SSA’s decision, and it is
not clear that it did, this is only one factor for the court
to consider . . . Because Defendant has offered a reasoned explanation, based on the evidence, for its outcome, that outcome is not arbitrary or capricious.”)
(alteration, quotation marks, and citations omitted)
B.
Medical Evidence
“Generally, when a plan administrator chooses to
rely upon the medical opinion of one doctor over that
of another in determining whether a claimant is entitled to ERISA benefits, the plan administrator’s decision cannot be said to have been arbitrary and
capricious because it would be possible to offer a reasoned explanation, based upon the evidence, for the
plan administrator’s decision.” McDonald v. W.-S. Life
Ins. Co., 347 F.3d 161, 169 (6th Cir. 2003) Additionally,
“plan administrators are not obliged to accord special
deference to the opinions of treating physicians.” Black
& Decker Disability Plan v. Nord, 538 U.S. 822, 825
App. 64
(2003). However, they “may not arbitrarily refuse to
credit a claimant’s reliable evidence, including the
opinions of a treating physician.” Id. at 834. “[T]hey
must instead give reasons for adopting an alternative
opinion.” Curry, 400 F. App’x at 59 (citing Elliot v.
Metro. Life Ins., 473 F.3d 613, 620 (6th Cir. 2006)). An
acceptable reason could be that the treaters’ opinion
lacks supporting objective evidence, see Morris, 399 F.
App’x at 986-87, Curry, 400 F. App’x at 59, or that the
treating sources lack expertise in the relevant field,
Black & Decker Disability Plan, 538 U.S. at 832, Simpson v. Liberty Life Assurance Co. of Boston, No. 0611077, 2007 WL 2050428, at *4 (E.D. Mich. July 17,
2007) (Cox, J.) (adopting report and recommendation).
Moreover, “nothing inherently objectionable about
a file review . . . in the context of a benefits determination” unless it proves “clearly inadequate.” Calvert v.
Firstar Finance, Inc., 409 F.3d 286, 296 (6th Cir. 2005).
Inadequacies can arise where:
•
the file reviewer “concludes that the claimant
is not credible without having actually examined him or her,” Judge v. Metro. Life Ins. Co.,
710 F.3d 651, 663 (6th Cir. 2013), Smith v.
Cont’l Cas. Co., 450 F.3d 253, 263 (6th Cir.
2006);
•
the file reviewer made conclusions that are
“incredible on their face” when compared to
the objective data and “thorough objectively
verifiable determinations of the SSA and [the
claimant’s] treating physician, Calvert, 409
F.3d at 296-97, Koning v. United of Omaha
App. 65
Life Ins. Co., 627 F. App’x 425, 434 (6th Cir.
2015); or
•
“only [the administrator’s] physicians, who
had not examined [the claimant], disagreed
with the treating physicians”, Hoover v. Provident Life and Acc. Ins. Co., 290 F.3d 801, 809
(6th Cir. 2002).
Here, it was not arbitrary for Sedgwick to discontinue Plaintiff ’s benefits after it received Dr. Shavell’s
IME finding of no evidence of a regional complex plain
issue as of July 2014. (AR 975-79.) In so doing, Sedgwick did not ignore contrary opinions of Plaintiff ’s
treating physicians. Plaintiff has not been able to point
to any medical opinions rendered by her treaters
around July 2014 that she was totally disabled. Indeed,
the record shows Plaintiff visited Dr. Nounou a couple
of days after her IME with Dr. Shavell, and no diagnosis, plan of care, or limitations were noted at this visit.
(AR 970.) The only thing Sedgwick received after July
2014 with an opinion from her treating physicians
about her condition was a letter from Dr. Brengel dated
April 15, 2015, and that was nine months later. To the
extent Plaintiff attacks Dr. Shavell for not being a neurologist, most of the opinions relied by Plaintiff were
made by treating sources who are not neurologists.
In reviewing Plaintiff ’s appeal, Sedgwick also did
not arbitrarily rely on the file review by Dr. Hoenig.
Plaintiff fails to advance any genuine challenges to the
file review process and Dr. Hoenig’s conclusion. First,
while she claims that “[i]t appears that Sedgwick provided Dr. Hoenig with only a selection of records from
App. 66
June 24, 2011 to January 2014,” (ECF No. 27,
PageID.1523,) this contention is contradicted by the
list of the records provided for review indicated in Dr.
Hoeng’s report (AR 660).
Similarly, Plaintiff ’s claim that “Sedgwick frustrated any opportunity for [Plaintiff ] to submit documentation regarding her condition” lacks support. As
of the date of Dr. Hoenig’s review, Plaintiff had already
provided documents with her July 28, 2014 letter. (AR
967-72.) On August 8, 2014, she was asked if she
planned to provide any additional documentation, and
she responded negatively. (AR 949.) She was again informed of her rights to provide documentation when
she received the August 20, 2014 letter, yet none was
provided.21 Ultimately, it was Plaintiff who bore the
burden to furnish satisfactory proof of disability and
continuation thereof under the Plan. (AR 1206); see
Miller, 925 F.2d at 984-85 (interpreting the plan provision, which stated that “on demand from the insurance
company, further satisfactory proof, in writing, must be
submitted to the insurance company that the disability
continues,” as putting the burden on the participant
to prove continuing disability); Likas v. Life Ins. Co. Of
N. Am., 347 F. App’x 162, 167 (6th Cir. 2009) (holding
that similar plan language made clear that plaintiff
must provide continued proof of his disability and the
21
While Plaintiff blames this on the timing of Sedgwick’s
appeal decision, despite having opportunities to do so in this case,
she has never suggested what documents could have been provided that would warrant an alteration of Defendants’ decision.
App. 67
defendant does not bear the burden of showing that
plaintiff ’s eligibility has ended).22
As Plaintiff acknowledges, Dr. Hoenig did not dispute the treating sources’ opinions; indeed, he consulted
them and incorporated the same medical restrictions
and limitations prescribed by her physicians in his
report. (ECF No. 27, PageID.1524; ECF No. 29,
PageID.1606-07; AR 661-63.) He even tried to speak
to the doctor who last treated Plaintiff. (AR 661.) Dr.
Hoenig also made no credibility assessment of Plaintiff. (See AR 661-63.) His explanation for his conclusion
– the lack of sufficient objective evidence – was a valid
reason and is unchallenged by Plaintiff. Morris, 399 F.
App’x at 986-87; Curry, 400 F. App’x at 59. Furthermore, Dr. Hoenig was not the only physician who found
that Plaintiff was not disabled as of July 22, 2014. Dr.
Shavell and FCA’s plant doctor both examined Plaintiff and came to the same conclusion. (AR 945-46, 97579.) Thus, Sedgwick could rely on Dr. Hoenig’s review
because his procedure was reasonable, his finding was
rational, and there is not a sufficient reason to reject
22
Plaintiff argues that Defendants were required to make a
vocational assessment to determine whether Plaintiff could perform her own job or regular employment with FCA. (ECF No. 27,
PageID.1541.) The record shows that an ability-to-work evaluation was conducted on July 22, 2014. To the extent Plaintiff argues that Defendants must identify a job that she could perform
to find that she was not totally disabled, the Sixth Circuit has also
“rejected a legal rule requiring administrators to introduce vocational evidence identifying jobs that participants can perform.”
Autran v. Procter & Gamble Health & Long-Term Disability
Benefit Plan, 27 F.4th 405, 417 (6th Cir. 2022) (citing Judge, 710
F.3d at 662-63).
App. 68
his review. See e.g., Judge, 710 F.3d at 663 (holding that
the reliance on a file review was proper as “the file
reviewers made no credibility determinations about
Judge and did not second-guess Judge’s treating physicians” and their findings “simply echo those of [the
plaintiff ’s] own doctors, make note where the reports
lack objective medical evidence in support of the boxes
checked, and point out the internal inconsistencies”).
That Sedgwick’s decision was not arbitrary and
capricious is further demonstrated by its willingness
to re-review Plaintiff ’s claim in July 2015, despite having no obligation to do so. In upholding its decision,
Sedgwick relied on a separate IRR by another neurologist, Dr. Friedman. (AR 599-603.) As with Dr. Hoenig’s
review, Plaintiff does not advance any meaningful
challenge to Dr. Friedman’s process and findings.
Again, Plaintiff faulted Sedgwick for not allowing her
to provide documentation, except she did provide documentation in May 2015 (albeit insufficient) (AR 65455) and Sedgwick tried to communicate to her that she
could do so (AR 651). Plaintiff said she never received
the July 8, 2015 communication, because it was sent to
her old address. (ECF No. 29, PageID. 1607.) However,
nothing indicates that this was done intentionally, nor
does Plaintiff claim that she had updated Sedgwick
with her new address.23 Contrary to Plaintiff ’s assertion, Dr. Friedman did not just rely primarily on Dr.
Shavell’s findings (AR 601), though it was reasonable
23
It was incumbent on Plaintiff to “promptly furnish . . . information as is necessary to provide benefits under the terms of
th[e] Plan.” (AR 1217)
App. 69
for Dr. Friedman to consider them as they were made
during the pertinent time – July 2014. In addition to
reviewing Dr. Shavell’s report, Dr. Friedman also considered the notes of Dr. Nounou, who saw Plaintiff on
July 17, 2014, and contacted his office. (AR 599-601.)
Dr. Friedman was able to confirm with a nurse at Dr.
Nounou’s office that no disability issue was noted during that appointment or thereafter. (AR 600.)
Like Dr. Hoenig, Dr. Friedman did not ignore the
opinions of Plaintiff ’s treating physicians. He reviewed
them and provided a neurology synopsis of them in his
report, including those supporting previous disabilities. (Id.) He made no assessment of Plaintiff ’s credibility and even incorporated her account as described
in the July 28, 2014 letter. (Id.). Other than Dr.
Shavell’s IME report (AR 975-79) and Dr. Nounou’s
note of the July 17, 2014 visit (AR 970-72), there is no
other objective medical information for Plaintiff ’s condition in or around July 2014. Nine months after, Dr.
Brengel second-handedly relayed that another physician, Dr. K. Fram, performed an EMG of Plaintiff and
believed that Plaintiff had medical issues. (AR 655.)
However, no test result was provided, nor were there
any records substantiating Dr. Fram’s alleged beliefs.
Dr. Friedman did not totally ignore what Dr. Brengel
wrote in his April 2015 letter; instead, he justifiably
found it unconvincing given that it “did not include
any new examination findings or results of the testing.” (AR 595.) In short, Dr. Friedman’s conclusion that
insufficient clinical evidence supported Plaintiff ’s disabilities, restrictions, or limitations was not “incredible
App. 70
on its face.” In fact, Plaintiff concedes that this was
“not surprising.” (ECF No. 29, PageID.1608.)24
Accordingly, the court finds that Defendants did
not unjustifiably ignore the opinions of Plaintiff ’s
treaters, nor did they arbitrarily or capriciously rely on
their physicians’ findings in discontinuing Plaintiff ’s
benefits.
C.
Plaintiff ’s Comments
Lastly, Plaintiff condemned Defendant’s decision
as arbitrary and capricious because Sedgwick totally
ignored her response to Dr. Shavell’s IME report. (ECF
No. 27, PageID.1539-40.) Plaintiff has failed to come
forward with any evidence supporting this contention.
While Sedgwick did not expressly address her comments, silence is not evidence of disregard. See Hurse
v. Hartford Life & Accident Ins. Co., 77 F. App’x 310,
318 (6th Cir. 2003) (“We are not persuaded that Hartford’s silence with regard to the SSA record and findings is evidence that it did not consider them . . . ”).
Plaintiff also has failed to advance any authority or
Plan language suggesting that Sedgwick had an obligation to specifically elaborate what it thought of
Plaintiff ’s remarks. (ECF No. 29, PageID.1604.)
To the contrary, as Defendants point out, the regulations only require Sedgwick to “[p]rovide a review
24
Additionally, Plaintiff concedes that “the [administrative]
record [in this case] is insufficient for the Court to make th[e] determination” that Plaintiff is entitled to benefits. (ECF No. 29,
PageID.1608.)
App. 71
that takes into account all comments, documents,
records, and other information submitted by the claimant relating to the claim . . . ” 29 C.F.R. § 2560.5031(h)(2)(iv) (emphasis added). Here, not only is there no
indication that Sedgwick wholly disregarded Plaintiff ’s comments, but Sedgwick also deemed them material enough to provide them to Dr. Hoenig and Dr.
Friedman for their review. (AR 660, 599.) And Dr.
Friedman specifically incorporated Plaintiff ’s comments from her letter to his report. (AR 600.) Thus, the
court finds that Sedgwick met its obligation to provide
a review that considers Plaintiff ’s comments. 29 C.F.R.
§ 2560.503-1(h)(2)(iv). However, having already done
that, nothing in the Plan, the regulations, or the case
law required Sedgwick to credit Plaintiff ’s comments
over contrary objective evidence (or lack thereof ). See
Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376,
382 (1996) (holding that administrator did not act arbitrarily in discounting claimant’s “subjective complaint [,that] are easy to make, but almost impossible
to refute”).
In short, Plaintiff has failed her burden of showing
that Defendants wholesale ignored her comments or
acted arbitrarily in not relying on them.
IV.
CONCLUSION
Defendants’ decision to discontinue Plaintiff ’s
benefits as of July 22, 2014 was the result of a deliberate and principled reasoning process and supported by
substantial evidence. Accordingly,
App. 72
IT IS ORDERED that Plaintiff ’s “Motion for Judgment” (ECF No. 27) is DENIED.
IT IS FURTHER ORDERED that Defendants’
“Motion for Judgment on the Administrative Record”
is GRANTED.
s/Robert H. Cleland /
ROBERT H. CLELAND
UNITED STATES DISTRICT
JUDGE
Dated: September 21, 2022
I hereby certify that a copy of the foregoing document
was mailed to counsel of record on this date, September 21, 2022, by electronic and/or ordinary mail.
s/Lisa Wagner /
Case Manager and Deputy Clerk
(810) 292-6522
App. 73
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JACQUELINE AVERY,
Plaintiff,
v.
Case No. 20-11810
SEDGWICK CLAIMS
MANAGEMENT SERVICES,
INC. and EXTENDED
DISABILITY BENEFIT
OF THE CHRYSLER
GROUP LLC GROUP
INSURANCE PROGRAM
Defendants.
/
OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION TO
REJECT PROCEDURAL CHALLENGE
(Filed Sep. 14, 2021)
Plaintiff Jacqueline Avery, an employee of Chrysler Group, LLC (“Chrysler”), brings this action under
29 U.S.C. § 1132(a)(1)(B) of the Employee Retirement
Income Security Act of 1974 (ERISA) to recover benefits allegedly owed by an employer-provided long-term
disability plan (“Defendant Plan1”) and administered
1
The court notes that there is evidently some confusion between the parties about which Chrysler long-term disability plan
is the proper Defendant in the present dispute. (See ECF No. 14,
PageID.177 n.1.) The court expects counsel for the respective
App. 74
by Defendant Sedgwick Claims Management Services,
Inc. (“Sedgwick”). (ECF No. 1.) Currently before the
court is Plaintiff ’s Statement of Procedural Challenge
(ECF No. 9) and Defendants’ response, styled as a “Motion to Strike Statement of Procedural Challenge.”
(ECF No, 12.) The court construes the motion as one to
review and reject, rather than to “strike” the filed paper from the record. Having reviewed the briefs, the
court concludes that a hearing is not necessary. See
E.D. Mich. LR 7.1(e)(2). For the reasons stated below,
the court agrees that Plaintiff has not presented a
proper procedural challenge and will therefore REJECT the Statement of Procedural Challenge, and will
limit review to the administrative record.
I.
BACKGROUND
Plaintiff worked as a financial specialist at Chrysler in Michigan until July 2011. She allegedly became
disabled “as a result of complex regional pain syndrome, venous reflux disease, and neuropathy, complicated by other conditions” in her lower extremities.
(ECF No. 1, PageID.3; ECF No. 12, PageID.96.) After
receiving short-term disability, Plaintiff was approved
for long-term disability benefits in August 2012 by
Defendant Sedgwick. (ECF No. 1, PageID.4.) As required by the terms of Defendant Plan, Plaintiff applied for Social Security Disability benefits in August
2012 and was approved based on her application
parties to confer and reach a resolution on this point as the answer should be easily obtainable.
App. 75
and medical information without the need for a hearing. (Id, PageID.5.) Plaintiff ’s benefits under the plan
were then offset by her Social Security payments. (Id.)
Sedgwick continued to authorize extensions of
Plaintiff ’s benefits until July 2014 when it notified
Plaintiff that she would be required to attend an independent medical examination with Dr. Joel Shavell,
who is board certified in internal medicine and rheumatology. (Id, PageID.6.) On July 21, 2014, Sedgwick
sent a letter to Plaintiff stating that the “recent IME
examination” found that she was “[a]ble to work.” (ECF
No. 12-1, PageID.134.) The letter told Plaintiff to “report to your plant medical department for a determination of your ability to return to work” and advised
that Plaintiff ’s benefits “may be suspended effective
July 21, 2014 pending the outcome of the ability to
work examination.”
At the onsite examination Chrysler’s physician
found that Plaintiff was able to return to work (Id.,
PageID.122), and on August 20, 2014, Sedgwick sent
Plaintiff a longer letter stating that “[b]ased upon the
results of the your recent IME examination, in which
you were found able to work, the eligibility requirement is no longer satisfied.” (Id., PageID.123.) The letter also said that Plaintiff was to report to the Chrysler
Human Resources Department “for a determination of
your ability to return to work” and laid out the process
and deadlines for filing an appeal. (Id.)
Before even receiving this second notification,
however, in late July 2014, Plaintiff filed a detailed
App. 76
letter “appeal[ing] [the] recent return to work decision
communicated to me on July 22, 2014,” by “challeng[ing]
several statements” in Dr. Shavell’s IME report, a copy
of which Plaintiff had obtained “during [her] visit to
Chrysler.” (Id., PageID.125-27.)
After an independent record review conducted by
neurologist David Hownig, Sedgwick informed Plaintiff on September 12, 2014 that her appeal was being
denied. (Id., PageID.110.) Plaintiff hired an attorney
and, on May 18, 2015, submitted another letter to
Sedgwick requesting that her benefits be “immediately
[and] retroactively” reinstated. She attached a letter
from Dr. Robert Brengel, Plaintiff ’s treating physician,
indicating Plaintiff was still disabled. (Id., PageID.106.)
Sedgwick then conducted another review of Plaintiff ’s
file and obtained a new independent record review by
a neurologist. (Id., PageID.97-98.) In September 2015,
Sedgwick again found that Plaintiff was not disabled.
(Id.) The new letter indicated that Plaintiff had fortyfive days to appeal the updated determination. (Id.)
She did not file another appeal. Instead, Plaintiff commenced the present ERISA suit in July 2020. (See ECF
No. 1)
II.
STANDARD
The general rule is that a district court should
base its review of an ERISA-based claim of an alleged
denial of benefits solely upon the administrative record.
Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609,
619 (6th Cir. 1998). The district court may consider
App. 77
other evidence “only if that evidence is offered in support of a procedural challenge to the administrator’s
decision, such as an alleged lack of due process afforded by the administrator or alleged bias on its part.”
Id. “If a court finds that due process was not denied,
however, then it is appropriate for the district court to
deny further discovery into substantive areas, or else
a plaintiff could circumvent the directive of Wilkins
merely by pleading a due process problem.” Moore v.
Lafayette Life Ins. Co., 458 F.3d 416, 431 (6th Cir. 2006);
Putney v. Medical Mutual of Ohio, 111 F. App’x 803, 807
(6th Cir. 2004).
III.
DISCUSSION
Plaintiff has filed a “Statement of Procedural
Challenge” highlighting ten alleged procedural errors
which she contends prevented her from being afforded
a “full and fair review of her claim.” (ECF No. 9,
PageID.52.)
1.
Sedgwick hired a doctor who is not a neurologist, Dr. Joel Shavell, to evaluate Ms.
Avery’s neurological disorders, and Sedgwick did not send the doctor a complete
set of medical records to review (Complaint, ¶¶ 29-33, ECF No. 1, PageID.7);
2.
Sedgwick discontinued Ms. Avery’s benefits after initially approving them for
several years solely on the basis of Dr.
Shavell’s flawed evaluation (Complaint,
¶ 35, ECF No. 1, PageID.7);
App. 78
3.
In issuing its decision, Sedgwick failed to
apply the correct definition of disability
under the terms of the Chrysler Plan (Complaint, ¶¶ 36-37, ECF No. 1, PageID.7-8);
4.
Sedgwick did not perform an assessment
of Ms. Avery’s employability that was consistent with the terms of the Chrysler Plan
(Complaint, ¶ 38, ECF No. 1, PageID.8);
5.
Sedwick’s adverse benefit determination
letter to Ms. Avery failed to comply with
ERISA regulations in that it did not explain Ms. Avery’s appeal rights, did not
notify Ms. Avery that she had a right to
obtain all of the information relevant to
her claim, and did not explain what information was needed for Ms. Avery to perfect her claim (Complaint, ¶ 39, ECF No.
1, PageID.8);
6.
Contrary to acceptable procedure for
ERISA benefit claims, Sedgwick’s adverse benefit determination letter failed
to address in any way the fact that Ms.
Avery has been approved for Social Security Disability benefits, despite the fact
that Sedgwick had required Ms. Avery to
apply for those benefits and Sedgwick
claimed an overpayment and offset based
on Ms. Avery’s receipt of Social Security
Disability benefits (Complaint, ¶ 40, ECF
No. 1, PageID.9);
7.
Sedgwick also totally ignored favorable evidence from Ms. Avery’s treating physicians
without any explanation, and Sedgwick
App. 79
heavily relied on its own consultant who
was not board-certified in the relevant
specialty (Complaint, ¶ 40, ECF No. 1,
PageID.9);
8.
Sedgwick ignored the favorable findings
of two doctors who performed earlier IMEs
(Complaint, ¶ 46, ECF No. 1, PageID.10);
9.
Sedgwick denied an appeal by Ms. Avery
and issued a final adverse benefit determination that again failed to use the correct definition of disability from the plan,
failed to address the fact that Ms. Avery
was getting Social Security Disability
benefits, failed to address her treating
physician opinions, and relied entirely on
the opinion of a hired consultant (Complaint, ¶ 48, ECF No. 1, PageID.10);
10. Sedgwick did not follow the claim procedures of the Chrysler Plan, failing to notify Ms. Avery that she might have a
further avenue for appeal, and instead
notifying her that: “The decision is the
Claim Administrator’s final decision. You
have the right to bring a civil action under ERISA 502(a).” (Complaint, ¶¶ 49-51,
ECF No. 1, PageID.10-11);
(ECF No. 9, PageID.51-52.) Plaintiff ’s original filing argued that these alleged procedural errors entitle
her to obtain discovery from outside the administrative record under Wilkins. (Id.) Defendants filed a
“Motion to Strike Plaintiff ’s Statement of Procedural
Challenge” providing a detailed response to all ten
App. 80
deficiencies alleged by Plaintiff. (See ECF No. 12.) In
Plaintiff ’s most recent briefing, she now concedes that:
Defendants are correct that a few of the
points raised in Plaintiff ’s Statement of Procedural Challenge typically get resolved without expanding the administrative record. An
argument that the administrator ‘ignored favorable evidence submitted by [her] treating
physicians, selectively reviewed the evidence
it did consider from the treating physicians,
failed to conduct its own physical examination, and heavily relied on non-treating physicians’ can be factors weighing in favor of
finding the administrator’s decision to be arbitrary and capricious.
(ECF No. 14, PageID.180 (quoting Shaw v. AT&T Umbrella Benefit Plan No. 1, 795 F.3d 538, 547 (6th Cir.
2015)).) Plaintiff did not specify which of the ten objections raised in the procedural challenge she is abandoning, so the court will assume that Plaintiff has
conceded all challenges not directly argued in her
briefing.
Plaintiff ’s latest briefing continues to argue that
the following procedural errors occurred. First, Plaintiff contends that Defendants failed to provide proper
notification of the initial denial of benefits and that the
timing of the notification also meant the denial of a
reasonable opportunity to appeal. (Id., PageID.175-76.)
Second, Plaintiff argues that Defendants failed to
properly consider the Social Security Administration’s
App. 81
finding that Plaintiff was disabled.2 (Id., PageID.17980.)
A.
Notification
The court first finds that Plaintiff has failed to alleged a plausible procedural violation with regards to
EIRSA’s notification requirement because the alleged
“procedural failures did not prevent [Plaintiff ] from
gaining information necessary to contest h[er] denial
of benefits.” See Putney v. Med. Mut. of Ohio, 111 F.
App’x 803, 807 (6th Cir. 2004). The crux of Plaintiff ’s
argument is that the July 21, 2014 letter sent to Plaintiff constituted a “notification of a benefit determination” that failed to “provide adequate notice in writing
. . . , setting forth the specific reasons for such denial,
. . . and . . . afford[ing] a reasonable opportunity to any
participant whose claim for benefits has been denied
for a full and fair review.” 29 U.S.C.A. § 1133; see also
29 C.F.R. § 2560.503-1(g) (2014) (setting forth specific
information that must be included in a benefits determination letter).
2
Plaintiff ’s latest briefing now also argues that “[Plaintiff ]
should have access to all [of Chrysler’s] related corporate and personal records” because the administrative record contains an email
from corporate security to Sedgwick indicating that Chrysler had
conducted surveillance on Plaintiff. (ECF No. 14, PageID.180.)
Plaintiff however fails to articulate what procedural protection
was violated by this email being included in the administrative
record in the first place. Consequently, Plaintiff has not plausibly
alleged that she has “been substantially denied [any] procedural
protections afforded by ERISA.” See Moore v. Lafayette Life Ins.
Co., 458 F.3d 416, 431 (6th Cir. 2006).
App. 82
It is undisputed that the July 21 letter did not provide a detailed determination of Defendants’ decision
to deny Plaintiff further disability benefits and did
not include any information on how an appeal could
be filed. (See ECF No. 12-1, PageID.134.) Defendants
factually dispute whether this letter constituted a benefits determination or merely communicated the findings of Dr. Shavell’s IME. (ECF No. 12, PageID.72.)
And Defendants point to Sedgwick’s detailed August
20, 2014 letter—which more closely hewed to the requirements of 29 C.F.R. § 2560.503-1(g)—as the document meant to notify Plaintiff of a final benefits
determination. (ECF No. 12-1, PageID.123.)
The court need not wade into this factual dispute
because the Sixth Circuit found in Kent v. United of
Omaha Life Ins. Co. that an insurer “substantially
complied with E.R.I.S.A.’s procedural requirements”
when the claimant was provided with two consecutive
letters that collectively complied with ERISA’s notification requirement. 96 F.3d 803, 807 (6th Cir. 1996)
(emphasis added). In Kent, the insurer’s notification
procedures “were technically deficient because the
[contents of the] first letter did not meet the requirements of the statute and regulation, and the second
letter was untimely (it being issued more than 90 days
after the decision to deny the claim).” Id. But the court
determined that “when viewed in light of the myriad
of communications between claimant, her counsel and
the insurer, [the letters] were sufficient to meet the
purposes of Section 1133 in insuring that the claimant
App. 83
understood the reasons for the denial of the claim as
well as her rights to review of the decision.” Id.
In the present case, Defendants’ substantial compliance with the notification requirements is even
more readily apparent, because unlike in Kent, even if
the court assumes that, as Plaintiff alleges, both letters
were attempts at notifying Plaintiff of a final benefit
determination, Sedgwick’s second letter provided a
timely correction undisputedly within the ninety-day
notification window required by the regulation. Therefore, any alleged “procedural failures” with regards to
the notification letters cannot plausibly said to be “substantial” under Sixth Circuit case law because the alleged procedural violations “did not prevent [Plaintiff ]
from gaining information necessary to contest [her] denial of benefits.” Putney, 111 F. App’x at 807.
Plaintiff likewise has failed to allege any meaningful procedural defect in the appeals process. While
Plaintiff ’s decision to file an appeal before she had received the more detailed August 20, 2014 denial letter
may have caused some confusion, it is undisputed that
Sedgwick not only acted on the contents of the initial
appeal but also allowed the Defendant another “rereview” of its determination in 2015 once she had retained counsel. (See ECF No. 15-2, PageID.216-17.)
Sedgwick responded to the July 2014 appeal—raising
questions about Dr. Shavell’s IME—by engaging a neurologist to conduct an independent record review. (See
ECF No. 15-2, PageID.227-31.) And, after the appeals
deadline listed in its August 20, 2014 letter, Sedgwick
voluntarily reexamined the file and had yet another
App. 84
neurologist conduct an independent record review in
2015 when Plaintiff ’s attorney submitted a new letter
from her primary care physician supporting her claim.
(See ECF No. 12-1, PageID.99-100, 106-07.) Plaintiff
does not deny such reviews occurred and has not
clearly articulated how these two appeals together did
not provide Plaintiff with a meaningful chance of review. Plaintiff cannot complain she was unaware that
she had the opportunity to file a second appeal when
she actually filed one; therefore, the court finds Plaintiff has not plausibly alleged a significant deficiency in
the appeals process.
B. Failure to Consider the
Social Security Determination
Plaintiff next argues that a procedural flaw in the
review of her claim exists because the Defendants
failed to properly consider the Social Security Administration’s determination that Plaintiff was disabled.
While the current version of the ERISA “Claims Procedure” regulation requires that a denial of benefits
notification address a contrary Social Security Disability determination, Plaintiff now concedes the version of the regulation in effect during 2014 had no
explicit requirement. (ECF No. 14, PageID.178.) See
29 C.F.R. § 2560.503-1 (2014). Instead, Plaintiff argues
that
the amended regulations [now in effect] merely
clarify the existing requirement to provide
each claimant with a full and fair review, and
the Sixth Circuit has long adhered to the
App. 85
jurisprudential rule that, ‘if the plan administrator (1) encourages the applicant to apply
for Social Security disability payments; (2) financially benefits from the applicant’s receipt
of Social Security; and then (3) fails to explain why it is taking a position different from
the SSA on the question of disability, the reviewing court should weigh this in favor of a
finding that the decision was arbitrary or capricious.’
(Id., PageID.178-79 (quoting Bennett v Kemper National Services, 514 F.3d 547, 554 (6th Cir. 2008)).) A
close reading of Bennett however shows that it stands
only for the proposition that a defendant’s failure to
consider an SSA disability determination is a factor
that “weighs in favor of finding that [the insurer] failed
to engage in a deliberate, principled reasoning process”
under the arbitrary and capricious standard of review.
Bennett, 514 F.3d at 554 (quotation omitted). The
Bennett decision nowhere indicates that an insurer’s
failure to consider an SSA determination constitutes
a procedural error that necessitates extra discovery.
Plaintiff can certainly argue that the failure to consider the SSA disability determination supports a finding that Defendant’s determination “cannot withstand
scrutiny under the arbitrary or capricious standard of
review,” but it does not constitute grounds for more discovery. See id.
Perhaps anticipating this conclusion, Plaintiff, in
the alternative, now argues that further discovery is
needed “because Sedgwick not only required Ms. Avery
App. 86
to apply for Social Security, but controlled the entire
process through which Ms. Avery obtained her benefits.” (Id., PageID.179.) The Defendants, in response,
argue that the record shows that “there is no evidence
to support Plaintiff ’s argument that Sedgwick administered Plaintiff ’s application for SSDI, because it did
not.” (ECF No. 15, PageID.208.) The court first notes
that Plaintiff ’s new factual allegation was first raised
in her responsive briefing and is not contained in the
initial complaint. (See ECF No. 1, PageID.9 (noting
only that “Sedgwick had required Ms. Avery to apply
for [the SSDI] benefits”).) Plaintiff ’s new argument includes no citations to any facts in the record. Because
Plaintiff has not “provided any facts to support a claim
that discovery might lead to such evidence,” the court
finds that this “mere allegation,” is insufficient to establish a plausible procedural defect claim that requires additional discovery. Putney, 111 F. App’x at
807.
IV.
CONCLUSION
For the reasons stated above, the court finds that
Plaintiff has failed to raise significant procedural defects that justify further discovery. Accordingly,
IT IS ORDERED that “Defendants’ Motion to
Strike Plaintiff ’s Statement of Procedural Challenge”
(ECF No. 12) is GRANTED and Plaintiff ’s Statement
of Procedural Challenge (ECF No. 9) is REJECTED.
App. 87
No valid procedural challenge is presented justifying
further discovery.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: September 14, 2021
I hereby certify that a copy of the foregoing document
was mailed to counsel of record on this date, September 14, 2021, by electronic and/or ordinary mail.
s/Lisa G. Wagner
Case Manager and Deputy Clerk
(810)292-6522
App. 88
No. 22-1960
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JACQUELINE AVERY,
)
)
Plaintiff-Appellant,
)
v.
)
ORDER
) (Filed Aug. 24, 2023)
SEDGWICK CLAIMS
)
MANAGEMENT SERVICES,
)
INC. AND FCA US LLC
)
LONG-TERM DISABILITY
)
BENEFIT PLAN,
)
Defendants-Appellees.
)
BEFORE: McKEAGUE, GRIFFIN, and MURPHY,
Circuit Judges.
The court received a petition for rehearing en
banc. The original panel has reviewed the petition for
rehearing and concludes that the issues raised in the
petition were fully considered upon the original submission and decision of the case. The petition then was
circulated to the full court.* No judge has requested a
vote on the suggestion for rehearing en banc.
* Judge Davis recused herself from participation in this ruling.
App. 89
Therefore, the petition is denied.
ENTERED BY ORDER
OF THE COURT
/s/ Deborah S. Hunt
Deborah S. Hunt, Clerk
App. 90
29 U.S.C. § 1133. Claims procedure.
In accordance with regulations of the Secretary,
every employee benefit plan shall—
(1) provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the
specific reasons for such denial, written in a manner calculated to be understood by the participant,
and
(2) afford a reasonable opportunity to any participant whose claim for benefits has been denied for
a full and fair review by the appropriate named
fiduciary of the decision denying the claim.
App. 91
[For Claims Filed After January 1, 2002]
[Code of Federal Regulations]
[Title 29, Volume 9]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO
Access
[CITE: 29CFR2560.503-1]
[Page 528-538]
TITLE 29 – LABOR
CHAPTER XXV – EMPLOYEE BENEFITS SECURITY
ADMINISTRATION, DEPARTMENT OF LABOR
PART 2560 RULES AND REGULATIONS FOR ADMINISTRATION AND ENFORCEMENT
– Table of Contents
29 C.F.R. § 2560.503-1 Claims procedure.
(a) Scope and purpose. In accordance with the authority of sections 503 and 505 of the Employee
Retirement Income Security Act of 1974 (ERISA
or the Act), 29 U.S.C. 1133, 1135, this section sets
forth minimum requirements for employee benefit plan procedures pertaining to claims for benefits by participants and beneficiaries (hereinafter
referred to as claimants). Except as otherwise
specifically provided in this section, these requirements apply to every employee benefit plan described in section 4(a) and not exempted under
section 4(b) of the Act.
(b) Obligation to establish and maintain reasonable claims procedures. Every employee benefit
plan shall establish and maintain reasonable procedures governing the filing of benefit claims,
App. 92
notification of benefit determinations, and appeal
of adverse benefit determinations (hereinafter collectively referred to as claims procedures). The
claims procedures for a plan will be deemed to be
reasonable only if –
(1) The claims procedures comply with the requirements of paragraphs (c), (d), (e), (f ), (g), (h),
(i), and (j) of this section, as appropriate, except to
the extent that the claims procedures are deemed
to comply with some or all of such provisions pursuant to paragraph (b)(6) of this section;
(2) A description of all claims procedures (including, in the case of a group health plan within
the meaning of paragraph (m)(6) of this section,
any procedures for obtaining prior approval as a
prerequisite for obtaining a benefit, such as preauthorization procedures or utilization review procedures) and the applicable time frames is included
as part of a summary plan description meeting the
requirements of 29 CFR 2520.102-3;
(3) The claims procedures do not contain any
provision, and are not administered in a way, that
unduly inhibits or hampers the initiation or processing of claims for benefits. For example, a provision or practice that requires payment of a fee
or costs as a condition to making a claim or to
appealing an adverse benefit determination would
be considered to unduly inhibit the initiation and
processing of claims for benefits. Also, the denial
of a claim for failure to obtain a prior approval under circumstances that would make obtaining
such prior approval impossible or where application of the prior approval process could seriously
App. 93
jeopardize the life or health of the claimant (e.g.,
in the case of a group health plan, the claimant is
unconscious and in need of immediate care at the
time medical treatment is required) would constitute a practice that unduly inhibits the initiation
and processing of a claim;
(4) The claims procedures do not preclude an authorized representative of a claimant from acting
on behalf of such claimant in pursuing a benefit
claim or appeal of an adverse benefit determination. Nevertheless, a plan may establish reasonable procedures for determining whether an
individual has been authorized to act on behalf of
a claimant, provided that, in the case of a claim
involving urgent care, within the meaning of paragraph (m)(1) of this section, a health care professional, within the meaning of paragraph (m)(7) of
this section, with knowledge of a claimant’s medical condition shall be permitted to act as the authorized representative of the claimant; and
(5) The claims procedures contain administrative processes and safeguards designed to ensure
and to verify that benefit claim determinations
are made in accordance with governing plan documents and that, where appropriate, the plan provisions have been applied consistently with respect
to similarly situated claimants.
(6) In the case of a plan established and maintained pursuant to a collective bargaining agreement (other than a plan subject to the provisions
of section 302(c)(5) of the Labor Management Relations Act, 1947 concerning joint representation
on the board of trustees) –
App. 94
(i) Such plan will be deemed to comply with
the provisions of paragraphs (c) through (j) of
this section if the collective bargaining agreement
pursuant to which the plan is established or maintained sets forth or incorporates by specific reference –
(A) Provisions concerning the filing of
benefit claims and the initial disposition of benefit
claims, and
(B) A grievance and arbitration procedure to which adverse benefit determinations are
subject.
(ii) Such plan will be deemed to comply with
the provisions of paragraphs (h), (i), and (j) of this
section (but will not be deemed to comply with paragraphs (c) through (g) of this section) if the collective bargaining agreement pursuant to which
the plan is established or maintained sets forth or
incorporates by specific reference a grievance and
arbitration procedure to which adverse benefit determinations are subject (but not provisions concerning the filing and initial disposition of benefit
claims).
(c) Group health plans. The claims procedures of a
group health plan will be deemed to be reasonable
only if, in addition to complying with the requirements of paragraph (b) of this section –
(1) (i) The claims procedures provide that, in
the case of a failure by a claimant or an authorized
representative of a claimant to follow the plan’s
procedures for filing a pre-service claim, within
the meaning of paragraph (m)(2) of this section,
App. 95
the claimant or representative shall be notified
of the failure and the proper procedures to be
followed in filing a claim for benefits. This notification shall be provided to the claimant or authorized representative, as appropriate, as soon as
possible, but not later than 5 days (24 hours in the
case of a failure to file a claim involving urgent
care) following the failure. Notification may be
oral, unless written notification is requested by
the claimant or authorized representative.
(ii) Paragraph (c)(1)(i) of this section shall
apply only in the case of a failure that –
(A) Is a communication by a claimant or
an authorized representative of a claimant that is
received by a person or organizational unit customarily responsible for handling benefit matters;
and
(B) Is a communication that names a
specific claimant; a specific medical condition or
symptom; and a specific treatment, service, or
product for which approval is requested.
(2) The claims procedures do not contain any
provision, and are not administered in a way, that
requires a claimant to file more than two appeals
of an adverse benefit determination prior to bringing a civil action under section 502(a) of the Act;
(3) To the extent that a plan offers voluntary
levels of appeal (except to the extent that the
plan is required to do so by State law), including
voluntary arbitration or any other form of dispute resolution, in addition to those permitted by
App. 96
paragraph (c)(2) of this section, the claims procedures provide that:
(i) The plan waives any right to assert that
a claimant has failed to exhaust administrative
remedies because the claimant did not elect to
submit a benefit dispute to any such voluntary
level of appeal provided by the plan;
(ii) The plan agrees that any statute of limitations or other defense based on timeliness is
tolled during the time that any such voluntary appeal is pending;
(iii) The claims procedures provide that a
claimant may elect to submit a benefit dispute to
such voluntary level of appeal only after exhaustion of the appeals permitted by paragraph (c)(2)
of this section;
(iv) The plan provides to any claimant, upon
request, sufficient information relating to the voluntary level of appeal to enable the claimant to
make an informed judgment about whether to
submit a benefit dispute to the voluntary level of
appeal, including a statement that the decision of
a claimant as to whether or not to submit a benefit
dispute to the voluntary level of appeal will have
no effect on the claimant’s rights to any other benefits under the plan and information about the
applicable rules, the claimant’s right to representation, the process for selecting the decisionmaker,
and the circumstances, if any, that may affect the
impartiality of the decisionmaker, such as any financial or personal interests in the result or any
past or present relationship with any party to the
review process; and
App. 97
(v) No fees or costs are imposed on the claimant as part of the voluntary level of appeal.
(4) The claims procedures do not contain any
provision for the mandatory arbitration of adverse
benefit determinations, except to the extent that
the plan or procedures provide that:
(i) The arbitration is conducted as one of the
two appeals described in paragraph (c)(2) of this
section and in accordance with the requirements
applicable to such appeals; and
(ii) The claimant is not precluded from challenging the decision under section 502(a) of the
Act or other applicable law.
(d) Plans providing disability benefits. The claims
procedures of a plan that provides disability benefits will be deemed to be reasonable only if the
claims procedures comply, with respect to claims
for disability benefits, with the requirements of
paragraphs (b), (c)(2), (c)(3), and (c)(4) of this section.
(e) Claim for benefits. For purposes of this section,
a claim for benefits is a request for a plan benefit
or benefits made by a claimant in accordance with
a plan’s reasonable procedure for filing benefit
claims. In the case of a group health plan, a claim
for benefits includes any pre-service claims within
the meaning of paragraph (m)(2) of this section
and any post-service claims within the meaning of
paragraph (m)(3) of this section.
App. 98
(f ) Timing of notification of benefit determination.
(1) In general. Except as provided in paragraphs
(f )(2) and (f )(3) of this section, if a claim is wholly
or partially denied, the plan administrator shall
notify the claimant, in accordance with paragraph
(g) of this section, of the plan’s adverse benefit determination within a reasonable period of time,
but not later than 90 days after receipt of the claim
by the plan, unless the plan administrator determines that special circumstances require an extension of time for processing the claim. If the plan
administrator determines that an extension of
time for processing is required, written notice of
the extension shall be furnished to the claimant
prior to the termination of the initial 90-day period. In no event shall such extension exceed a period of 90 days from the end of such initial period.
The extension notice shall indicate the special circumstances requiring an extension of time and the
date by which the plan expects to render the benefit determination.
(2) Group health plans. In the case of a group
health plan, the plan administrator shall notify a
claimant of the plan’s benefit determination in
accordance with paragraph (f )(2)(i), (f )(2)(ii), or
(f )(2)(iii) of this section, as appropriate.
(i) Urgent care claims. In the case of a claim
involving urgent care, the plan administrator
shall notify the claimant of the plan’s benefit determination (whether adverse or not) as soon as
possible, taking into account the medical exigencies, but not later than 72 hours after receipt of the
App. 99
claim by the plan, unless the claimant fails to provide sufficient information to determine whether,
or to what extent, benefits are covered or payable
under the plan. In the case of such a failure, the
plan administrator shall notify the claimant as
soon as possible, but not later than 24 hours after
receipt of the claim by the plan, of the specific information necessary to complete the claim. The
claimant shall be afforded a reasonable amount of
time, taking into account the circumstances, but
not less than 48 hours, to provide the specified information. Notification of any adverse benefit determination pursuant to this paragraph (f )(2)(i)
shall be made in accordance with paragraph (g) of
this section. The plan administrator shall notify
the claimant of the plan’s benefit determination as
soon as possible, but in no case later than 48 hours
after the earlier of –
(A) The plan’s receipt of the specified information, or
(B) The end of the period afforded the
claimant to provide the specified additional information.
(ii) Concurrent care decisions. If a group
health plan has approved an ongoing course of
treatment to be provided over a period of time or
number of treatments –
(A) Any reduction or termination by the
plan of such course of treatment (other than by
plan amendment or termination) before the end of
such period of time or number of treatments shall
constitute an adverse benefit determination. The
plan administrator shall notify the claimant, in
App. 100
accordance with paragraph (g) of this section, of
the adverse benefit determination at a time sufficiently in advance of the reduction or termination
to allow the claimant to appeal and obtain a determination on review of that adverse benefit
determination before the benefit is reduced or terminated.
(B) Any request by a claimant to extend
the course of treatment beyond the period of time
or number of treatments that is a claim involving
urgent care shall be decided as soon as possible,
taking into account the medical exigencies, and
the plan administrator shall notify the claimant of
the benefit determination, whether adverse or not,
within 24 hours after receipt of the claim by the
plan, provided that any such claim is made to the
plan at least 24 hours prior to the expiration of the
prescribed period of time or number of treatments.
Notification of any adverse benefit determination
concerning a request to extend the course of treatment, whether involving urgent care or not, shall
be made in accordance with paragraph (g) of this
section, and appeal shall be governed by paragraph (i)(2)(i), (i)(2)(ii), or (i)(2)(iii), as appropriate.
(iii) Other claims. In the case of a claim not
described in paragraphs (f )(2)(i) or (f )(2)(ii) of
this section, the plan administrator shall notify
the claimant of the plan’s benefit determination in
accordance with either paragraph (f )(2)(iii)(A) or
(f )(2)(iii)(B) of this section, as appropriate.
(A) Pre-service claims. In the case of a
pre-service claim, the plan administrator shall notify the claimant of the plan’s benefit determination
App. 101
(whether adverse or not) within a reasonable period of time appropriate to the medical circumstances, but not later than 15 days after receipt of
the claim by the plan. This period may be extended
one time by the plan for up to 15 days, provided
that the plan administrator both determines that
such an extension is necessary due to matters beyond the control of the plan and notifies the claimant, prior to the expiration of the initial 15-day
period, of the circumstances requiring the extension of time and the date by which the plan expects
to render a decision. If such an extension is necessary due to a failure of the claimant to submit the
information necessary to decide the claim, the notice of extension shall specifically describe the required information, and the claimant shall be
afforded at least 45 days from receipt of the notice
within which to provide the specified information.
Notification of any adverse benefit determination
pursuant to this paragraph (f )(2)(iii)(A) shall be
made in accordance with paragraph (g) of this section.
(B) Post-service claims. In the case of a
post-service claim, the plan administrator shall
notify the claimant, in accordance with paragraph
(g) of this section, of the plan’s adverse benefit determination within a reasonable period of time,
but not later than 30 days after receipt of the
claim. This period may be extended one time by
the plan for up to 15 days, provided that the plan
administrator both determines that such an extension is necessary due to matters beyond the
control of the plan and notifies the claimant, prior
to the expiration of the initial 30-day period, of the
circumstances requiring the extension of time and
App. 102
the date by which the plan expects to render a decision. If such an extension is necessary due to a
failure of the claimant to submit the information
necessary to decide the claim, the notice of extension shall specifically describe the required information, and the claimant shall be afforded at least
45 days from receipt of the notice within which to
provide the specified information.
(3) Disability claims. In the case of a claim for
disability benefits, the plan administrator shall
notify the claimant, in accordance with paragraph
(g) of this section, of the plan’s adverse benefit determination within a reasonable period of time,
but not later than 45 days after receipt of the claim
by the plan. This period may be extended by the
plan for up to 30 days, provided that the plan
administrator both determines that such an extension is necessary due to matters beyond the
control of the plan and notifies the claimant, prior
to the expiration of the initial 45-day period, of the
circumstances requiring the extension of time and
the date by which the plan expects to render a decision. If, prior to the end of the first 30-day extension period, the administrator determines that,
due to matters beyond the control of the plan, a
decision cannot be rendered within that extension
period, the period for making the determination
may be extended for up to an additional 30 days,
provided that the plan administrator notifies the
claimant, prior to the expiration of the first 30-day
extension period, of the circumstances requiring
the extension and the date as of which the plan
expects to render a decision. In the case of any extension under this paragraph (f )(3), the notice of
extension shall specifically explain the standards
App. 103
on which entitlement to a benefit is based, the unresolved issues that prevent a decision on the
claim, and the additional information needed to
resolve those issues, and the claimant shall be afforded at least 45 days within which to provide the
specified information.
(4) Calculating time periods. For purposes of paragraph (f ) of this section, the period of time within
which a benefit determination is required to be
made shall begin at the time a claim is filed in accordance with the reasonable procedures of a plan,
without regard to whether all the information necessary to make a benefit determination accompanies the filing. In the event that a period of time is
extended as permitted pursuant to paragraph
(f )(2)(iii) or (f )(3) of this section due to a claimant’s
failure to submit information necessary to decide
a claim, the period for making the benefit determination shall be tolled from the date on which the
notification of the extension is sent to the claimant
until the date on which the claimant responds to
the request for additional information.
(g) Manner and content of notification of benefit
determination.
(1) Except as provided in paragraph (g)(2) of this
section, the plan administrator shall provide a
claimant with written or electronic notification of
any adverse benefit determination. Any electronic
notification shall comply with the standards imposed by 29 CFR 2520.104b1(c)(1)(i), (iii), and (iv).
The notification shall set forth, in a manner calculated to be understood by the claimant –
App. 104
(i) The specific reason or reasons for the adverse determination;
(ii) Reference to the specific plan provisions
on which the determination is based;
(iii) A description of any additional material
or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary;
(iv) A description of the plan’s review procedures and the time limits applicable to such procedures, including a statement of the claimant’s
right to bring a civil action under section 502(a) of
the Act following an adverse benefit determination
on review;
(v) In the case of an adverse benefit determination by a group health plan or a plan providing
disability benefits,
(A) If an internal rule, guideline, protocol, or other similar criterion was relied upon in
making the adverse determination, either the specific rule, guideline, protocol, or other similar criterion; or a statement that such a rule, guideline,
protocol, or other similar criterion was relied upon
in making the adverse determination and that a
copy of such rule, guideline, protocol, or other criterion will be provided free of charge to the claimant upon request; or
(B) If the adverse benefit determination
is based on a medical necessity or experimental
treatment or similar exclusion or limit, either an
explanation of the scientific or clinical judgment
for the determination, applying the terms of the
App. 105
plan to the claimant’s medical circumstances, or a
statement that such explanation will be provided
free of charge upon request.
(vi) In the case of an adverse benefit determination by a group health plan concerning a
claim involving urgent care, a description of the
expedited review process applicable to such claims.
(2) In the case of an adverse benefit determination by a group health plan concerning a claim involving urgent care, the information described in
paragraph (g)(1) of this section may be provided to
the claimant orally within the time frame prescribed in paragraph (f )(2)(i) of this section, provided that a written or electronic notification in
accordance with paragraph (g)(1) of this section is
furnished to the claimant not later than 3 days after the oral notification.
(h) Appeal of adverse benefit determinations.
(1) In general. Every employee benefit plan shall
establish and maintain a procedure by which a
claimant shall have a reasonable opportunity to
appeal an adverse benefit determination to an appropriate named fiduciary of the plan, and under
which there will be a full and fair review of the
claim and the adverse benefit determination.
(2) Full and fair review. Except as provided in
paragraphs (h)(3) and (h)(4) of this section, the
claims procedures of a plan will not be deemed to
provide a claimant with a reasonable opportunity
for a full and fair review of a claim and adverse
benefit determination unless the claims procedures –
App. 106
(i) Provide claimants at least 60 days following receipt of a notification of an adverse benefit
determination within which to appeal the determination;
(ii) Provide claimants the opportunity to submit written comments, documents, records, and
other information relating to the claim for benefits;
(iii) Provide that a claimant shall be provided, upon request and free of charge, reasonable
access to, and copies of, all documents, records, and
other information relevant to the claimant’s claim
for benefits. Whether a document, record, or other
information is relevant to a claim for benefits shall
be determined by reference to paragraph (m)(8) of
this section;
(iv) Provide for a review that takes into account all comments, documents, records, and other
information submitted by the claimant relating to
the claim, without regard to whether such information was submitted or considered in the initial
benefit determination.
(3) Group health plans. The claims procedures of
a group health plan will not be deemed to provide
a claimant with a reasonable opportunity for a full
and fair review of a claim and adverse benefit determination unless, in addition to complying with
the requirements of paragraphs (h)(2)(ii) through
(iv) of this section, the claims procedures –
(i) Provide claimants at least 180 days following receipt of a notification of an adverse benefit
App. 107
determination within which to appeal the determination;
(ii) Provide for a review that does not afford
deference to the initial adverse benefit determination and that is conducted by an appropriate
named fiduciary of the plan who is neither the individual who made the adverse benefit determination that is the subject of the appeal, nor the
subordinate of such individual;
(iii) Provide that, in deciding an appeal of
any adverse benefit determination that is based in
whole or in part on a medical judgment, including
determinations with regard to whether a particular treatment, drug, or other item is experimental,
investigational, or not medically necessary or appropriate, the appropriate named fiduciary shall
consult with a health care professional who has
appropriate training and experience in the field of
medicine involved in the medical judgment;
(iv) Provide for the identification of medical
or vocational experts whose advice was obtained
on behalf of the plan in connection with a claimant’s adverse benefit determination, without regard to whether the advice was relied upon in
making the benefit determination;
(v) Provide that the health care professional
engaged for purposes of a consultation under paragraph (h)(3)(iii) of this section shall be an individual who is neither an individual who was
consulted in connection with the adverse benefit
determination that is the subject of the appeal, nor
the subordinate of any such individual; and
App. 108
(vi) Provide, in the case of a claim involving
urgent care, for an expedited review process pursuant to which –
(A) A request for an expedited appeal of
an adverse benefit determination may be submitted orally or in writing by the claimant; and
(B) All necessary information, including
the plan’s benefit determination on review, shall
be transmitted between the plan and the claimant
by telephone, facsimile, or other available similarly expeditious method.
(4) Plans providing disability benefits. The claims
procedures of a plan providing disability benefits
will not, with respect to claims for such benefits,
be deemed to provide a claimant with a reasonable opportunity for a full and fair review of a
claim and adverse benefit determination unless
the claims procedures comply with the requirements of paragraphs (h)(2)(ii) through (iv) and
(h)(3)(i) through (v) of this section.
(i)
Timing of notification of benefit determination on review.
(1)
In general.
(i) Except as provided in paragraphs (i)(1)(ii),
(i)(2), and (i)(3) of this section, the plan administrator shall notify a claimant in accordance with
paragraph (j) of this section of the plan’s benefit
determination on review within a reasonable period of time, but not later than 60 days after receipt of the claimant’s request for review by the
plan, unless the plan administrator determines
that special circumstances (such as the need to
App. 109
hold a hearing, if the plan’s procedures provide for
a hearing) require an extension of time for processing the claim. If the plan administrator determines that an extension of time for processing is
required, written notice of the extension shall be
furnished to the claimant prior to the termination
of the initial 60-day period. In no event shall such
extension exceed a period of 60 days from the end
of the initial period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the plan
expects to render the determination on review.
(ii) In the case of a plan with a committee or
board of trustees designated as the appropriate
named fiduciary that holds regularly scheduled
meetings at least quarterly, paragraph (i)(1)(i) of
this section shall not apply, and, except as provided in paragraphs (i)(2) and (i)(3) of this section,
the appropriate named fiduciary shall instead
make a benefit determination no later than the
date of the meeting of the committee or board that
immediately follows the plan’s receipt of a request
for review, unless the request for review is filed
within 30 days preceding the date of such meeting.
In such case, a benefit determination may be made
by no later than the date of the second meeting
following the plan’s receipt of the request for review. If special circumstances (such as the need to
hold a hearing, if the plan’s procedures provide for
a hearing) require a further extension of time for
processing, a benefit determination shall be rendered not later than the third meeting of the
committee or board following the plan’s receipt
of the request for review. If such an extension of
time for review is required because of special
App. 110
circumstances, the plan administrator shall provide the claimant with written notice of the extension, describing the special circumstances and the
date as of which the benefit determination will be
made, prior to the commencement of the extension. The plan administrator shall notify the
claimant, in accordance with paragraph (j) of this
section, of the benefit determination as soon as
possible, but not later than 5 days after the benefit
determination is made.
(2) Group health plans. In the case of a group
health plan, the plan administrator shall notify a
claimant of the plan’s benefit determination on
review in accordance with paragraphs (i)(2)(i)
through (iii), as appropriate.
(i) Urgent care claims. In the case of a claim
involving urgent care, the plan administrator
shall notify the claimant, in accordance with paragraph (j) of this section, of the plan’s benefit determination on review as soon as possible, taking
into account the medical exigencies, but not later
than 72 hours after receipt of the claimant’s request for review of an adverse benefit determination by the plan.
(ii) Pre-service claims. In the case of a preservice claim, the plan administrator shall notify
the claimant, in accordance with paragraph (j) of
this section, of the plan’s benefit determination on
review within a reasonable period of time appropriate to the medical circumstances. In the case of
a group health plan that provides for one appeal
of an adverse benefit determination, such notification shall be provided not later than 30 days after
App. 111
receipt by the plan of the claimant’s request for review of an adverse benefit determination. In the
case of a group health plan that provides for two
appeals of an adverse determination, such notification shall be provided, with respect to any one of
such two appeals, not later than 15 days after receipt by the plan of the claimant’s request for review of the adverse determination.
(iii)
Post-service claims.
(A) In the case of a post-service claim,
except as provided in paragraph (i)(2)(iii)(B) of
this section, the plan administrator shall notify
the claimant, in accordance with paragraph (j) of
this section, of the plan’s benefit determination on
review within a reasonable period of time. In the
case of a group health plan
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