Petition for Writ of Certiorari — Glazer v. Reliance Standard Life Insurance Co (No. 08-501)

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Supreme Court, U8,

FILED

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08-5 91 0CT 14 2008

AA ial 06 Tid CLERK

Wiliam K. Suter, Clerk

IN THE

Supreme Court of the United States

PRISCILLA GLAZER,

Petitioner,

RELIANCE STANDARD LIFE

INSURANCE COMPANY,

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE

UNITED States Court oF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

—_———_ —~——_

ALICIA PAULINO-GRISHAM

_ Di Law Group

1111 Hypoluxo Road

Suite 110

Lantana, Florida 33462

(561) 202-9170

Attorneys for Petitioner

—— —a

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

QUESTION PRESENTED

Whether the Eleventh Circuit erred in holding, in

conflict with several Circvits and in apparent conflict

with the Department of Labor’s expressed position, that

an ERISA administrator is not required to provide a

participant with access to new evidence it develops after

a participant’s only administrative appeal has been

submitted in response to a denial of plan benefits, nor

the opportunity to review and respond to this new

evidence, prior to the closure of the administrative

record.

a hn i ee ide ee a lk ae Be ee,

TABLE OF CONTENTS

QUESTION PRESENTED ..................

TABLE OF CONTENTS .................4..

TABLE OF APPENDICES ..................

TABLE OF CITED AUTHORITIES .........

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STATUTES AND REGULATIONS INVOLVED

STATEMENT OF THE CASE ...............

A. Fetial BOGKSTOURG. ......cccccccsccces

B. The District Court Proceeding .........

C. The Eleventh Circuit’s Decision ........

REASONS FOR GRANTING THE PETITION

I. This Petition Should Be Granted To

Resolve Squarely Conflicting Decisions

Between The Eighth, Tenth, And

Eleventh Circuits, To Prevent A

Worsening Divide Among The Circuits,

And To Resolve Confusion Among The

EG Gi Vdcetdcdecacanaes cee ns

Page

ie Se |

” ——

iii

Contents

A. There Is Square Conflict Among The

Eighth, Tenth, And Eleventh

Circuits, And Additional Conflicting

Decisions Among The Remaining

CES dC GR CEANH En Ei eee cheese

There Is Confusion Among The

IE I incase eneavewnsess

There is Additional Conflict Among

The Circuit And District Courts

Regarding The Intent of ERISA’s Full

and Fair Review Provisions And The

DOUs Accompanying Regulations.

II. This Honorable Court Should Grant This

Petition Because The Eleventh’s Circuit’s

Decision Contravenes The Purpose Of

The DOL Regulations And Frustrates the

ERISA Administrative Process Intended

By Congress And Fostered By The DOL

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Page

TABLE OF APPENDICES

Appendix A — Opinion Of The United States

Court Of Appeals For The Eleventh Circuit

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Appendix B — Order Of The United States

District Court For The Southern District Of

Florida Dated And Filed September 25, 2006

Appendix C — Order Of The United States

Court Of Appeals Denying Petition For

Rehearing Filed June 13, 2008 ............. 30a

Appendix D — Regulation Involved .......... 32a

TABLE OF CITED AUTHORITIES

Page

CASES:

Abatie v. Alta Health & Life Ins. Co.,

458 F.3d 955 (9th Cir. 2006) ............... 15, 19

Abram v. Cargill, Inc.,

395 F.3d 882 (8th Cir. 2005) .............. passim

Balmert v. Reliance Standard Life Ins. Co.,

No. 2:07-95, 2008 WL 4404299

RB ee 19

Black v. Pitney Bowes Inc.,

No. 05-108, 2008 WL 3992306

CTPF CMI ccc vccccccccccccce 19

Boldt v. Dow Chemical Co. Voluntary

Group Acc. Ins. Plan,

No. 6:06-25, 2007 WL 2329873

CRE ED sccccccccccccceses 20

Crocco v. Xerox Corp.,

956 F. Supp. 129 (D. Conn. 1997),

aff'd in pertinent part

hype Ff) bo | 14

IMGregorio v. Hartford Comprehensive

Employee Benefit Serv. Co.,

423 FO 6G (iat Cir. BOGS) ... ccc cccccccecss 16

Cited Authorities

Page

Ellis v. Metro. Life Ins. Co.,

126 F.3d 228 (4th Cir. 1997) .............0.- 15

Engelhoff v. Engelhoff,

I ]

Firestone Tire & Rubber Co. v. Bruch,

bis cb vedawececsscceces 34

Frederick v. Intel Corp.,

181 F.3d 1105 (9th Cir. 1999) ............... 15

Glazer v. Reliance Standard Ins. Co.,

524 F.3d 1241 (11th Cir. 2008),

rehearing denied, — F.3d —,

No. 06-15855-BB (11th Cir. June 13, 2008) ...

dice idbidwebde entereese cess 27, 29, 31

Glazer v. Reliance Standard Ins. Co.,

No. 06-60112, Slip. Op.

CRE IED ccc ccccccccccccees 13

Grossmuller v. Int’l Union, UAW,

715 F.2d 853 (8d Cir. 1983) ....... 11, 18, 14, 31, 32

Hamall-Desai v. Fortis Benefits Ins. Co.,

370 F. Supp. 2d 1283 (N.D. Ga. 2004), aff'd,

164 Fed. Appx. 963 (11th Cir. 2006),

rehearing denied, 179 Fed. Appx. 687

ee ee aos ecw cneeve 21

vii

Cited Authorities

Harris v. Aetna Life Ins. Co.,

379 F. Supp. 2d 1366 (N.D. Ga. 2005) ....

Hines v. Anchor Motor Freight, Inc.,

GG Ty TOO. oo ceive scccwcccccee.

Houston v. Unum Life Ins. Co. of Am.,

246 Fed. Appx. 293 (6th Cir. 2007) .......

Laub v. Aetna Life Ins. Co.,

549 F. Supp. 2d 571 (S.D. N.Y. 2008) .....

Lammers v. Am. Express Long Term

Disability Benefit Plan, No. 06-1099,

2007 WL 2247594 (D. Minn. Aug. 2, 2007)

Lunt v. Metro. Life Ins. Co.,

No. 2:05-784, 2007 WL 1964514

(D. Utah July 2, 2007) ..................

Mead v. ReliaStar Life Ins. Co.,

No. 2:05-332, 2008 WL 850678

Cis Wee OUR Sriccic cc sccccccccces

Metzger v. UNUM Life Ins. Co.,

476 F.3d 1161 (10th Cir. 2007) ...........

Miller v. United Welfare Fund,

72 F.3d 1066 (2d Cir. 1995) ..............

vill

Cited Authorities

Morgan v. United States,

iia. sc ids secedesceses

Navarro v. Eaton Corp., No. 06-1190,

2007 WL 2011205 (D. Kan. July 9, 2007) ..

New York State Conference of Blue Cross

& Blue Shield Plans v. Travelers Ins. Co.,

Be AEE Sic ecdececceccececce

Robinson v. Aetna Life Ins. Co.,

443 F.3d 389 (5th Cir. 2006) .............

Rush Prudential HMO, Inc. v. Moran,

536 U.S. 355 (2002) ........ ee eee eee eee

Russo v. Hartford Life & Acc. Co.,

No. 00-938, 2002 WL 32138296

(S.D. Cal. Feb. 5, 2002) ............ bade en

Schneider v. Sentry Group Long Term

Disability Plan,

422 F.3d 621 (7th Cir. 2005) ... .........

Silver v. Executive Car Leasing

Long-Term Disability Plan,

466 F.3d 727 (9th Cir. 2006) .............

Skipp v. Hartford Life Ins. Co.,

No. 06-2199, 2008 WL 346107

(D. Md. Feb. 6, 2008) ..............2----

Cited Authorities

Page

Smith v. Continental Cas. Co.,

No. 1:06-1441, 2007 WL 2071538

(N.D. Ga. July 16,2007) ................... 22

Vaca v. Sipes,

EE ne in iaccndeievccevseee 32

Vega v. National Life Ins. Servs.,

188 F.3d 287 (5th Cir. 1999) ................ 17

Walters v. Prudential Ins. Co. of Am.,

No. 06-20, 2007 WL 4531311

Ce MI UD occ cece ccccccsccs 21

White v. Reliance Standard Life Ins. Co.,

No. 1:05-2149, 2007 WL 187939

a 21

Winz-Byone v. Metro. Life Ins. Co.,

No. 07-238, 2008 WL 962867

ek ES Ee 20

STATUTES:

diy d Cedesw kien seeennate passim

GE ae ac accadescnectonetincnwt 32

Cited Authorities

Page

REGULATIONS:

ERISA Claims Procedure,

29 C.F-R. § 2560.503-1 (2000) ............. passim

ERISA Claims Procedure,

65 Fed. Reg. 70,252 (Nov. 21, 2000) ........ 24, 28

Claims Procedure for Employee Benefit Plans,

42 Fed. Reg. 27,426 (May 27, 1977) ......... 28

MISCELLANEOUS:

Brief for Plaintiff as Amici Curiae, Russo v.

Hartford Life & Acc. Co., No. Civ. 00-938, 2002

WL 32138296 (S.D. Cal. Feb. 5, 2002) ...... 26, 28

H.R. Rep. No. 93-807, 93d (1973), reprinted in

STO We MID vi Sis ose cceccccecess 32

U.S. Dept. of Comm., Bureau of the Census,

Current Population Survey (March 2007) ... 9

U.S. Dept. of Labor, Employee Benefits Security

Admin.: Filing a Claim for Your Health and

Disability Benefits, 1 (Sept. 2006) .......... 9

Petitioner-Plaintiff, Priscilla Glazer, respectfully

submits that a writ of certiorari should issue to review

the April 21, 2008 decision of the United States Court

of Appeals for the Eleventh Circuit entered in this case.

OPINION BELOW

The opinion of the United States Court of Appeals

for the Eleventh Circuit affirming the decision of the

United States District Court for the Southern District

of Florida is reported at 524 F:3d 1241, and is reproduced

in the Petitioner’s Appendix. Pet. App. A. The opinion

of the District Court is not reported and is reproduced

in the Appendix. Pet. App. B.

JURISDICTION

The judgment of the Court of Appeals was entered

on April 21, 2008, and the Eleventh Circuit denied

Petitioner’s request for a rehearing in an order filed on

June 13, 2008, which is reproduced in the Appendix.

Pet. App. C. The time for filing this petition was

extended by Justice Thomas to October 11, 2008. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

~* ‘

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STATUTES AND REGULATIONS INVOLVED

The section of the Employee Retirement Income

Security Act of 1974, as amended (“ERISA”), involved

provides in pertinent part:

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.

29 U.S.C. § 1138.

The pertinent Department of Labor (“DOL’)

Regulation involved, ERISA Claims Procedure,

29 C.E-R. § 2560.503-1 (2000), is reproduced in pertinent

part in the Appendix. Pet. App. D.

STATEMENT OF THE CASE

A. Factual Background

Priscilla Glazer worked for several years as a senior

technical writer for The Ultimate Software Group

(“Ultimate”). As a benefit of her employment, Glazer

chose to participate in the Ultimate Long-Term

Disability Plan (“the Plan”) insured and administered

by Reliance Standard Life Insurance Company

(“Reliance Standard”). The Plan is governed by ERISA.

At the advice of her treating Orthopedist, Glazer

ceased working on June 13, 2003, and subsequently filed

a claim for disability benefits with Reliance Standard

under the Plan. On January 13, 2004, Reliance Standard

found that Glazer became disabled under the terms of

the Plan as of June 13, 2003 and approved benefits.

Glazer continued to present information from her

treating doctors, including her Orthopedist, Physiatrist,

Rheumatologist, and Internist, which included

documentation of her chronic and severe medical

condition and limitations, opinions that Glazer was

disabled from working, and advisements that she had

reached maximum medical improvement. In May 2004,

Glazer’s treating Physiatrist completed a Physical

Capacities Questionnaire form (“PCQ”) at Reliance

Standard’s request. While Glazer’s Physiatrist indicated

on the PCQ that Glazer was capable of performing some

basic sedentary level activities, he did not state that

Glazer’s condition had improved, and did not opine she

was able to perform the substantial and material duties

of her regular occupation on a full or part-time basis.

On July 11, 2004, without consulting a medical

professional regarding the Physiatrist’s PCQ and

Glazer’s medical file, Reliance Standard terminated

Glazer’s disability claim. Reliance Standard asserted

that based upon the Physiatrist’s PCQ and a previous

interview with Giazer, she was capable of performing

“sedentary duty classification” on a full-time basis. In

response, Glazer submitted her only administrative

appeal allowed under the Plan, providing evidence to

refute Reliance Standard’s stated rationale for

termination of her disability income benefits.

In a May 12, 2005 letter, Reliance Standard upheld

its denial based upon the following expert reports

generated by it without Glazer’s knowledge following

the submission of her appeal: three (3) medical reviews

and reports totaling fifteen (15) pages by a

Gastroenterologist, Dr. Hauptman, hired by Reliance

Standard (“the Hauptman Reports”), and a vocational

assessment and report created by Reliance Standard’s

paid in-house vocational staff (“the Vocational Report”).

Prior to issuing this final denial of plan benefits,

Reliance Standard did not inform Glazer, nor her

treating doctors, of this new evidence that was

generated during the time period of January 2005

through May 2005. In the same correspondence where

Glazer was informed for the first time of this new

evidence and the revised rationale alleged to deny her

benefits, Reliance Standard also informed Glazer that

its “claim decision [was] now final; as you have exhausted

any administrative remedies available to you” and that

she had “the right to bring a civil action under [ERISA].”

Glazer was never afforded an opportunity to review and

respond to the Hauptman Reports nor the Vocational

Report prior to Reliance Standard closing the

administrative record. Accordingly, Glazer’s only

recourse was to file this lawsuit in federal court.

B. The District Court Proceeding

On January 23, 2006, Glazer filed a civil action

pursuant to ERISA against Reliance Standard in the

United States District Court for the Southern District

of Florida. On September 25, 2006, the District Court

entered a summary judgment in favor of Reliance

Standard. In so doing, the Court: (1) limited its review

to the administrative record that was before Reliance

Standard at the time of its final denial; (2) did not address

Glazer’s request for a remand to Reliance Standard for

a reopening of the administrative record to allow her to

respond to the new evidence and rationale asserted by

Reliance Standard in its final denial; and (8) did not

address Glazer’s argument that she had been deprived

of the “full and fair review” guaranteed her under

ERISA.

C. The Eleventh Circuit’s Decision

On appeal of the summary judgment, the Eleventh

Circuit affirmed the District Court’s holding that

Reliance Standard’s termination of Glazer’s benefits was

“not wrong.” In so holding, the Court expressly ruled

that a court’s review of an ERISA benefits denial case

is limited to the administrative record before an

administrator at the time of its final denial, and that it

is the rlan participant’s burden to prove: that she is

disabled under the Plan and that the administrator’s

denial decision was “wrong.”

Subject of this Petition is the Eleventh Circuit’s

holding that a plan administrator is not required to

produce appeal-level evidence, which it has generated

and considered in upholding a denial of a participant’s

plan benefits, prior to issuing its final denial to allow

the participant the opportunity to review and respond

to the new evidence. Specifically, the Eleventh Circuit

held that Reliance Standard was only required to

provide Glazer with the Hauptman Reports after

Reliance Standard had issued its final denial, and thus

after the administrative record had closed. The

Eleventh Circuit found that to hold otherwise would be

contrary to the plain text of the DOL Regulations,

because the DOL Regulations only require an

administrator to produce all “relevant” documents to a

plan participant. The Court held that according to the

DOL Regulations, a document is “relevant” only if it

“(w]as relied upon” or “[w]as submitted, considered, or

generated in the course of making the benefit

determination.” The Eleventh Circuit held that Reliance

Standard had not “relied upon” the Hauptman Reports

or “used the report ‘in the course of making the benefit

determination” until after its final denial letter had

been issued. The Court held that only after Reliance

Standard had issued its final denial letter was it required

to produce any new evidence it generated or relied upon

in rendering a final denial. The Eleventh Circuit relied

heavily upon the Tenth Circuit’s decision issued in

Metzger v. UNUM Life Insurance Company, for the

proposition that subsection (h)(2)(iii) of the DOL

regulations “does not require a plan administrator to

provide a claimant with access to the medical opinion

reports of appeal-level reviewers prior to a final decision

on appeal,” and that “requiring these documents to be

produced earlier would create ‘an unnecessary cycle of

submission, review, re-submission, and re-review.”” The

Eleventh Circuit also asserted that according to the

DOL, the sole purpose for the “production of these

[relevant] documents is to enable a claimant to evaluate

whether to appeal an adverse determination,” and

reasoned that “[djocuments produced before a decision

is made would not assist a claimant in deciding whether

to pursue an appeal because the claimant would not yet

know if there had been an adverse determination.”

REASONS FOR GRANTING THE PETITION

This Petition should be granted because there are

squarely conflicting decisions between the Eighth,

Tenth, and Eleventh Circuit Courts of Appeal, which

has caused vast confusion to occur within the district

courts regarding the issue presented in this case. In

significant part, this confusion involves the intent of the

DOL in promulgating 29 C.F.R. § 2560.503-1, which was

enacted pursuant to 29 U.S.C. § 1133. As the DOL is

the entity entrusted with creating regulations to

promote Congress’ goals in enacting ERISA, confusion

among the courts as to the intent behind the DOL

regulations and § 1133 of ERISA is especially

problematic and can only breed additional conflict within

the courts deciding future ERISA benefit denial cases.

Furthermore, and similar to many ERISA-governed

group disability plans, the Plan at issue in Glazer is

national in scope! and at least two circuit courts have

delivered conflicting decisions on this issue directly

related to claims administration. Accordingly,

1. See https://www.ultirecruit.com/USG1006/JobBoard/

listjobs.aspz.

participants that are covered under the same Plan in

the Eighth Circuit are afforded more procedural

protections than participants in the Tenth and Eleventh

Circuits. In the Eighth Circuit, plan participants are

provided with the opportunity to review and respond

to all evidence utilized against them prior to the

closure of the administrative record. Conversely, plan

participants under the same Plan are barred from

submitting rebuttal evidence to respond to evidence

gathered by the plan administrator during the appeals

process in the Tenth and Eleventh Circuits. Moreover,

administrators that provide ERISA plans in the Eighth

Circuit and also in the Tenth or Lieventh Circuits, like

Reliance Standard, are forced to modify their claims

procedures according to which circuit court has

jurisdiction, despite the same federal statute and

regulations governing all ERISA benefit claims. This is

especially problematic given the conflict among the

district courts on this issue. Not only must nationwide

plan administrators utilize conflicting standards of plan

administration according to which circuit court has

jurisdiction over a claim, but because many circuits

currently have not directly addressed this precise issue,

plan administrators must attempt to modify their claims

procedures according to which district within the silent

circuits that the claim arises in. This directly conflicts

with ERISA’s mandate for uniformity in plan

administration. See Rush Prudential HMO, Inc. v.

Moran, 536 U.S. 355, 384-385 (2002). In enacting ERISA,

Congress intended:

[TJo ensure that plans and plan sponsors would

be subject to a uniform body of benefits law; the

goal was to minimize the administrative and

financial burden of complying with conflict

directives . . . requiring the tailoring of plans

and employer conduct to the peculiarities of the

law of each jurisdiction.

New York State Conference of Blue Cross & Blue Shield

Plans v. Travelers Ins. Co., 514 U.S. 645, 656-657 (1995)

(citations omitted). Uniformity cannot be accomplished

if plan administrators are subject to different legal

obligations and plan participants are subjected to

conflicting plan administration standards in different

jurisdictions. See Engelhoff v. Engelhoff, 532 U.S. 141,

148 (2001).

Moreover, the issue before this Honorable Court

extends far beyond the deprivation of one plan

participant’s right to procedural due process in ERISA

cases. According to the March 2007 Current Population

Series, 137.1 million people were covered by private-

sector employer-sponsored health insurance plans in

2006.* Millions of participants and beneficiaries in the

United States rely upon their employee benefits for

insurance coverage that they wish they never had to

use.® As such, whether plan participants are afforded

an opportunity to review and respond to evidence used

against them by plan administrators, has far reaching

2. See U.S. Dept. of Comm., Bureau of the Census, Current

Population Survey (March 2007). The Employee Benefits

Security Administration does not generate estimates of

disability insurance plans separately.

3. U.S. Dept. of Labor, Employee Benefits Security Admin.:

Filing a Claim for Your Health and Disability Benefits, 1 (Sept.

2006).

implications affecting a significant section of the

population. Given the considerable number of plan

participants and potential ERISA benefit claims,

preserving Congress’ goal of uniform claims handling

practices is imperative. Not only is this goal of ERISA

frustrated when the circuit courts are in conflict about

an administrator’s obligation to disclose documentation

at the administrative level, but so is another chief goal

of ERISA - the promotion of administrative resolution

of claims. This matter is of great public importance,

warranting this Honorable Court’s review, and this case

provides an ideal vehicle for resolution.

I. This Petition Should Be Granted To Resolve

Squarely Conflicting Decisions Between The

Eighth, Tenth, And Eleventh Circuits, To Prevent

A Worsening Divide Among The Circuits, And To

Resolve Confusion Among The District Courts.

A. There Is Square Conflict Among The Eighth,

Tenth, And Eleventh Circuits, And Additional

Conflicting Decisions Among The Remaining

Circuits.

There is a clear split among the Eighth, Tenth, and

Eleventh Circuits on the precise factual and legal issue

presented in this case, which only this Court can resolve.

The Eighth Circuit holds that for an ERISA plan

administrator to provide a participant with a full and

fair review guaranteed her under 29 U.S.C. § 1133 and

29 C.F.R. § 2560.503-1 (2000), it must permit a

participant to review and respond to evidence developed

by the administrator during the appeals process, prior

to the final benefit decision being issued. Abram v.

Cargill, Inc., 395 F.3d 882 (8th Cir. 2005). The Abram

Court held:

The process used by the Plan was not consistent

with a full and fair review. Abram was not

provided access to the second report by Dr.

Gedan that served as the basis for the Plan’s

denial of benefits until after the Plan’s decision.

Without knowing what “inconsistencies” the

Plan was attempting to resolve or having access

to the report the Plan relied on, Abram could

not meaningfully participate in the appeals

process .... This type of “gamesmanship” is

inconsistent with full and fair review. There can

hardly be a meaningful dialogue between the

claimant and the Plan administrators if evidence

is revealed only after a final decision. A claimant

is caught off guard when new information used

by the appeals committee emerges only with the

final denial. Abram should have been permitted

to review and respond to the report by Dr.

Gedan.

Id. at 886 (citations omitted). Relying upon the Third

Circuit’s seminal opinion in Grossmuller, the Abram

Court explained: “[T]he persistent core requirements’

of full and fair review include ‘knowing what evidence

the decision-maker relied upon, having an opportunity

to address the accuracy and reliability of that evidence,

and having the decision-maker consider the evidence

presented by both parties prior to reaching and

rendering his decision.” Jd. (quoting Grossmuller v. Intl

Union, UAW, 715 F.2d 853, 858 n.5 (3d Cir.1983)).

The Tenth Circuit’s position on this issue, however,

is entirely contrary to that of the Eighth Circuit. In

Metzger v. Unum Life Insurance Company of America,

the Tenth Circuit held:

In light of the sum of procedural requirements

of 29 C.E-R. § 2560.503-1 and the Department’s

explanation of those regulations, we hold that

subsection (h)(2)(iii) does not require a plan

administrator to provide a claimant with access

to the medical opinion reports of appeal-level

reviewers prior to a final decision on appeal.

Instead, the regulations mandate provision of

relevant documents, including medical opinion

reports, at two discrete stages of the

administrative process. First, relevant

documents generated or relied upon during the

initial claims determination must be disclosed

prior to or at the outset of an administrative

appeal. 29 C.F-R. § 2560.503-1(h)(2)(iii). Second,

relevant documents generated during the

administrative appeal — along with the claimant’s

file from the initial determination — must be

disclosed after a final decision on appeal.

29 C.E-R. § 2560.503-1(i)(5).

476 F.3d 1161, 1167 (10th Cir. 2007). The Tenth Circuit

reasoned that allowing ERISA participants to review

and respond to evidence gathered by the administrator

during the appeal review stage would prolong the

appeals process by creating an “unnecessary cycle of

submission, review, re-submission, and re-review.”

See id. at 1166-67. The Tenth Circuit’s holding in

Metzger has engendered the Eleventh Circuit’s decision

in Glazer, which now both stand in direct conflict with

the Eighth Circuit’s holding in Abram. This Court

should grant this Petition to resolve this square conflict

among the Eighth, Tenth, and Eleventh Circuits.

Furthermore, while the remaining Circuits have not

expressly addressed Abram and Metzger, they have

ruled in cases where the critical issue in the case at bar

— whether a participant is deprived of a meaningful

review of her ERISA claim when the administrator does

not provide her the opportunity to review and respond

to certain evidence — was implicated. Since 1983, the

Third Circuit has relied upon its seminal opinion in

Grossmuller, for guidance. 715 F.2d 853. In Grossmuller,

the Third Circuit held that the ERISA plan

administrator failed to previde Grossmuller with a

“full and fair” review when it did not allow him the

opportunity to examine or address the evidence used

against him to terminate his disability benefits. The

Court reasoned that a review of “the administrative law

context” reveals that: “the persistent core requirements

of review intended to be full and fair include knowing

what evidence the decision-maker relied upon, having

an opportunity to address the accuracy and reliability

of that evidence, and having the decision-maker

consider the evidence presented by both parties prior

to reaching and rendering his decision.” /d. at 858, n.5

(citing Morgan v. United States, 304 U.S. 1, 18-19,

(1938)). The Third Circuit’s reasoning and position in

Grossmuller sharply contrasts with the reasoning found

in Metzger and Glazer.

While Grossmuller is oft referred to by the other

Circuits as setting forth the “most widely accepted

criteria for determining what constitutes a full and fair

review” under ERISA,‘ and while the Circuits have

expressed approval of the Grossmuller test, there is a

clear variation amongst the Circuits in determining the

circumstances under which a participant must be

provided with an ability to review and respond to

evidence gathered by an administrator which is

ultimately used to support a denial of an ERISA benefits

claim. Compare, e.g., Houston v. Unum Life Ins. Co. of

Am., 246 Fed. Appx. 293 (6th Cir. 2007) (unpublished)

(emphasis in original) (holding that where the

administrator failed to provide its participant the

opportunity to review and respond to its “revised

rationale for terminating her benefits, including [the

non-treating, non-examining appeal-level physician’s

report],” the participant was denied a full and fair review

because a “[fJull and fair review does not mean that an

insurance company can simply mouth the same reason

[for denial, but instead includes]: knowing what evidence

the decision-maker relied upon [and] having an

opportunity to address the accuracy and reliability of

that evidence”), and Schneider v. Sentry Group Long

Term Disability Plan, 422 F.3d 621, 625-26 (7th Cir. 2005)

(finding that the ERISA participant was denied a

“meaningful review” of the administrator’s denial and

explaining:

Ms. Schneider was not provided with the nine

and one-half page report which Dr. Spierer

4. See e.g., Crocco v. Xerox Corp., 956 F. Supp. 129, 139

(D. Conn. 1997), aff’d in pertinent part 137 F.3d 105, 108, 109

(2d Cir. 1998).

prepared and on which Sentry insists it based

its dec’sion to terminate benefits. . . . [and]

[bjecause Ms. Schneider did not know what

reasons motivated Dr. Spierer’s conclusion

that she was no longer disabled, she could

hardly seek review of that conclusion

with Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 237 (4th

Cir. 1997) (holding that the initial medical review report

used by MetLife to deny Ellis’s claim was “the most

critical document” for Ellis to be allowed access, but

conversely finding that MetLife was not required to

provide Ellis with the two subsequent appeal-level

medical review reports “as a part of the review

procedures” explaining that “the initial decisional

process and the subsequent review procedures are

distinct,” but complicating its holding by finding MetLife

neutralized any harm of failing to provide the first

medical review report by providing the second medical

report to Ellis’s health care providers for “critique” and

“permitting Ellis and her health care providers to

submit additional data in response” prior to MetLife

issuing its final denial of the claim). Also Compare, e.g.,

Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 974

(2006) (holding that when “an administrator . . . adds, in

its final decision, a new reason for denial, a maneuver

that has the effect of insulating the rationale from

review” it violates both 29 U.S.C. §§ 1133(1) and (2),

and the appropriate remedy in this situation is that a

participant be entitled to submit evidence at bench trial

in the district court to rebut the administrator’s new

rationale for its final denial), and Fredrick v.

Intel Corp., 181 F.3d 1105, 1111 (9th Cir: 1999)

(holding the plan participant was entitled to admit

evidence in court but the administrator was not,

explaining the claim procedures applied by the

administrator prevented the participant from

submitting the evidence necessary to support his claim

for benefits), and Miller v. United Welfare Fund, 72

F.3d 1066, 1074 (2d Cir. 1995) (remanding to the

administrator where it failed to provide a full and fair

review, where the administrator was to: first, address

the evidence presented at the impermissible trial that

occurred, and then allow the participant “to produce any

additional evidence to rebut any evidence on which the

[administrator] could rely to deny benefits” prior to the

closure of the administrative record), with Silver v.

Executive Car Leasing Long-Term Disability Plan, 466

F.3d 727, 732, n.2 (9th Cir.2006) (commenting in a

footnote, in holding that a participant was not deprived

of a full and fair review when he was not allowed to

respond to appeal-level evidence generated by the

administrator prior to the final benefit determination,

that “in order for [an administrator] to evaluate [a

participant’s] appeal fairly, it ha/s] to wait until [the

participant] has submitted all of his materials; for [an

administrator] to do otherwise would either undermine

[a participant’s] ability to present all of his supporting

information or lead to an interminable back-and-forth

between the plan administrator and the claimant”), and

DiGregorio v. Hartford Comprehensive Employee

Benefit Serv. Co., 423 F.3d 6 (1st Cir. 2005) (holding that

although the administrator failed to provide the claimant

with a full claim file and technically failed to comply with

the DOL regulations, it still provided her with the

primary pieces of evidence relied upon to deny the claim

which still allowed the participant to “prepare an

informed response to [Hartford’s] decision”).

However, the Fifth Circuit has taken an approach

that is unique to its sister circuits. The Fifth Circuit

holds that “the administrative record consists of

relevant information made available to the administrator

prior to the complainant’s filing of a lawsuit [as long as]

the administrator [is given] a fair opportunity to

consider it,” which allows the plan participant (at her

option) to respond to evidence used by the administrator

to deny her claim, even after a final denial decision has

been issued. Vega v. National Life Ins. Servs., 188 F.3d

287, 300 (5th Cir. 1999) (en banc). In its en banc opinion,

the Fifth Circuit acknowledged that in denying a plan

participant the ability to supplement the administrative

record at trial, “there is a concern that a self-interested

administrator can manipulate this process unfairly

(e.g., by permitting the administrator to exclude from

the record information that would weigh in favor of

granting the claim)... .” Jd. The Court explained that

its motivating concern was to resolve claims at the

administrative level. See id. While the Fifth Circuit has

developed this safeguard designed to prevent the unfair

manipulation of process by the administrator, the Court

has still been forced to decide issues regarding an

administrator’s failure to disclose certain information

that forecloses a participant’s ability to adequately

participate in a meaningful admiristrative review of

her claim. See, e.g., Robinson v. Aetna Life Ins. Co.,

443 F.3d 389, 394 (5th Cir. 2006) (holding a plan

administrator’s failure to identify vocational experts

consulted in connection with a claim denial deprives a

participant of a full and fair review because “the two

subsections of section 1133 [are meant to] complement{]

each other” and “the requirement that the

administrator disclose the basis for its decision is

necessary so that beneficiaries can adequately prepare

for any further administrative review . . . [and to] help

ensure the ‘meaningful review’ contemplated by

subsection (2)”).

These additional conflicting decisions of the

remaining circuits, combined with the published

decisions of Abram and Metzger, have caused confusion

among the district courts. The split and lack of

uniformity among the Circuits on the issue presented

in this case is in imminent danger of expanding, and this

Honorable Court should grant this Petition to prevent

a worsening divide among che Circuits.

B. There Is Confusion Among The District Courts.

Given the split and lack of uniformity among the

Circuits, the district courts have been grappling to

determine which side of the divide their Circuit will

eventually land on. This has created vastly different

results on the very same issue within the district courts

and even between district courts within the same federal

circuit. Such an example exists within the Second Circuit.

In Mead v. ReliaStar Life Insurance Company, the

District Court of Vermont held that that the

administrator denied the participant a full and fair

review when it failed to provide the participant with an

opportunity to review and respond to an appeal-level

medical report used against the participant in the final

denial. No. 2:05-332, 2008 WL 850678, at *9 (D. Vt. Jan.

29, 2008). The court reasoned that the participant was

not able to challenge the credibility of the new medical

opinion, despite the rationale in the initial denial and

final denial remaining the same. See id. The district

court acknowledged the conflict among the Eighth and

Tenth Circuits, but adopted the reasoning of Abram.

See id. at *8-9. Also decided in 2008, are two decisions

by the Southern District of New York Court which are

directly contrary to the decision in Mead. In Laub v.

Aetna Life Insurance Company, the court held that the

administrator was not required to provide the

participant with appeal-level evidence it gathered prior

to rendering its final benefit determination. 549 F. Supp.

2d 571, 576 (S.D. N.Y. 2008). The Laub Court noted

the reasoning of Metzger to hold that requiring

administrators to provide participants with evidence it

gathers and ultimately utilizes during the appeals

process would result in an endless cycle of submission

and review. See id. at 576, n.3. Then, in Black v. Pitney

Bowes Inc., in addressing the participant’s argument

that he was denied a full and fair review in accordance

with the reasoning of Abram, the court noted that Tenth

Circuit has questioned and rejected the Eighth Circuit’s

reasoning. No. 05-108, 2008 WL 3992306, at *11 n.7(S.D.

N.Y Aug. 26, 2008). However, the Black Court found

that “even if Dr. Broder’s report was disregarded,” the

administrator’s decision to deny the claim was not

arbitrary and capricious. See id.

However, the confusion among the district courts

extends far beyond just the Second Circuit. See, e.g.,

Balmert v. Reliance Standard Life Ins. Co., No. 2:07-

95, 2008 WL 4404299, at *9, n.2 (S.D. Ohio Sept. 23, 2008)

(adopting the reasoning in Metzger to hold that the

participant was not denied a full and fair review when

she was not permitted to review and respond to an

independent medical examination report solicited by the

administrator during the appeals process, and also

rejecting Abram for the same reasons as Metzger);

Winz-Byone v. Metropolitan Life Ins. Co., No. 07-238,

2008 WL 962867 (C.D. Cal. Mar. 26, 2008) (adopting the

reasoning in Metzger, after acknowledging the conflict

among the Eighth and Tenth Circuits on the issue

in the case at bar); Skipp v. Hartford Life Ins. Co.,

No. 06-2199, 2008 WL 346107 (D. Md. Feb. 6, 2008)

(acknowledging the conflict between the Eighth and

Tenth Circuits but adopting the reasoning in Metzger

to hold that under the DOL regulations as administrator

is not required to produce a medical records review it

solicited during the appeals process until after the final

benefit determination); Boldt v. Dow Chemical Co.

Voluntary Group Acc. Ins. Plan, No. 6:06-25, 2007 WL

2329873 (S.D. Tex. Aug. 15, 2007) (recognizing the split

among the Eighth and Tenth Circuits, and agreeing with

the Abram Court’s determination that a full and fair

review “entitled [a participant] to know what evidence

was relied upon by the administrator ‘and respond to

that evidence,” but declining to adopt the “hard and

fast” rule set forth in either Abram or Metzger without

further guidance from the Fifth Circuit).

The district courts within the Eighth Circuit have

found the Tenth Circuit’s assertion that the Abram

decision was founded on the pre-2000 amendment

regulations invalid. In Lammers v. American Express

Long Term Disability Benefit Plan, the court was not

persuaded by the Tenth Circuit’s reasoning in Metzger,

because the Abram decision “was rooted in ERISA’s

fundamental ‘full and fair review’ requirement,

29 U.S.C. § 1133(2).” No. 06-1099, 2007 WL 2247594, at

*5-6 (D. Minn. Aug. 2, 2007). The Lammers Court

applied its circuit’s precedent in Abram to find that the

participant was denied a full and fair review when the

administrator failed to allow the participant to review

and respond to the two appeal-level medical reports.

See id. at 6; see also, Walters v. Prudential Ins. Co. of

America, No. 06-20, 2007 WL 4531311, *18 (N.D. Iowa

Dec. 18, 2007). Similarly, the district courts within the

Tenth Circuit have followed the holding in Metzger when

presented with this issue. See, e.g., Navarro v. Eaton

Corp., No. 06-1190, 2007 WL 2011205, at *4 (D. Kan.

July 9, 2007); Lunt v. Metropolitan Life ins. Co., No.

2:05-784, 2007 WL 1964514, at *9 (D. Utah July 2, 2007).

However, there is no stronger illustration of the

danger for increasing conflict among the circuits on this

issue than what occurred in the Eleventh Circuit. Prior

to Metzger, when faced with the issue presented in the

case at bar, several district courts within the Eleventh

Circuit expressed approval for the reasoning in Abram.

See, e.g., White v. Reliance Standard Life Ins. Co., No.

1:05-2149, 2007 WL 187939 (N.D. Ga. Jan. 22, 2007)

(adopting the reasoning in Abram); Harris v. Aetna Life

Ins. Co., 379 F. Supp. 2d 1366 (N.D. Ga. 2005) (adopting

the reasoning in Abram); Hamall-Desai v. Fortis

Benefits Ins. Co., 370 F. Supp. 2d 1283, 1313-15 (N.D.

Ga. 2004), aff’d, 164 Fed. Appx. 963 (11th Cir. 2006),

rehearing denied, 179 Fed. Appx. 687 (11th Cir. 2006)

(holding that “Fortis’ refusal to provide the [appeal-level]

reports ... denied Desai access to information relevant

to her claim after the initial denial, ‘thus denying [her]

the opportunity to respond to this evidence before the

decision on review was reached” and citing Russo v.

Hartford Life & Acc. Co., No. Civ. 00-938, 2002 WL

32138296 (S.D. Cal. Feb. 5, 2002) (holding, after the

benefit of the Secretary of Labor’s briefing, that

“(djenying a claimant access to information that is

generated after an initial denial, but is subsequently

relied upon by the administrator in reviewing the claim

on appeal, effectively denies the claimant with a full and

fair review,” and that “[b]y requiring . . . administrators

to maintain ... procedures that allow claimants access

to... documents ... is consistent with both plain

language of the regulation, as well as the spirit and

intent of ERISA .... regardless of whether it was

generated prior to or after an initial benefit denial”)).

Following Metzger, this did not change. See, e.g., Smith

v. Continental Cas. Co., No. 1:06-1441, 2007 WL 2071538

(N.D. Ga. July 16, 2007) (adopting the Eighth Circuit’s

reasoning in Abram in holding that the claimant was

denied a full and fair review by the administrator when

denied the opportunity to review and respond to an

appeal-level medical summary which was utilized to

support the final benefit denial). Eventually, the matter

reached the Eleventh Circuit in Glazer and the Circuit

Court was forced to make a decision between the

contrasting decisions, increasing the already existing

conflict within the circuit courts.

Given the clear split among the Eighth, Tenth, and

Eleventh Circuits and the confusion among the district

courts on this issue, without resolution from this

Honorable Court the conflict within the Circuit Courts

will almost certainly increase. Conflict within the circuits

on this issue frustrates ERISA’s chief goal of uniformity

in claims administration. The Eleventh Circuit’s

reasoning is clear, the relevant facts are well-developed

and the issues clearly defined. Accordingly, this case

provides an ideal vehicle by which the Court can resolve

the circuit conflict.

C. There Is Additional Conflict Among The Circuit

And District Courts Regarding The Intent Of

ERISA’s Full And Fair Review Provisions And

The DOUs Accompanying Regulations.

In large part, the conflict among the circuit courts

and the confusion among the district courts is due to

disagreement about the intent of the DOL in

promulgating 29 C.F.R. § 2560.503-1 (2000). Such

confusion within the courts is especially problematic in

ERISA benefit cases because the DOL is entrusted with

creating and enforcing regulations to carry out the

purposes of Congress in enacting ERISA.° Confusion

within the circuits about the requirements under the

DOL regulations can only lead to confusion among

participants and administrators about the true

requirements in the administrative claims process.

Resolution of this issue is essential to ensure that the

courts properly and consistently interpret the DOL

regulations and this case presents an ideal vehicle to

resolve the conflict regarding the requirements of

29 C.F-R. § 2560.503-1(2000).

At the core of the Metzger Court’s criticism of the

Eighth Circuit’s holding in Abram, is its assertion

that the Eighth Circuit was applying the pre-2000

amendment regulations, despite the fact that the Abram

Court specifically cited to 29 C.F.R. § 2560.503-1(h)

(2000). Metzger, 476 F.3d at 1168, n.3. The Tenth Circuit

suggests that the Eighth Circuit therefore did not

consider the 2000 regulation’s requirement that a

healthcare professional review medical evidence, which

5. See 29 U.S.C. § 1133.

‘ay

ee ee er ee ee ae ae ae

the Metzger Court asserted would create an endless .

cycle of review and re-review.® See id. at 1165, 1168, n.3.

The Tenth Circuit further concluded that the DOUs

intent in requiring disclosure of documents under its

regulations was to provide claimants with the ability to

determine whether to seek further appeal, and that

disclosure of appeal-level evidence pricr to a final denial

would not further this purpose. See id. at 1166-67 (citing

ERISA Claims Procedure, 65 Fed. Reg. 70,252 (Nov. 21,

2000)’). The Tenth Circuit’s reasoning engendered

support by the Eleventh Circuit in Glazer and the

district courts that have specifically sided with the

Metzger decision and rejected the reasoning of Abram.

However, the Abram decision, which was decided two

years after the 2000 amendments to the regulations were

enacted, focused on the core requirements of a “full and

fair review” under 29 U.S.C. § 1132(2). Abram, 395 F.3d

at 886. Furthermore, the district courts that have

adopted Abram and specifically rejected Metzger, find

6. The claim in Abram arose in 2000, the year that the -

amended regulations were enacted. However, the Eighth Circuit

decided the claim in 2002, two years after the regulations had

been enacted. Accordingly, the Tenth Circuit’s assertion that

the Eighth Circuit likely did not consider that the new

regulations required administrators to seek the advice of

healthcare professionals, and thus that it did not contemplate

its concern over a prolonged review process, is unlikely.

7. In the section cited to by the Tenth Circuit, the DOL

explained that its purpose in promulgating the amendments

was to “clarify” the type of documents it intended to be disclosed

under the 1977 regulations and earlier in the document

provided that the intent was to provide plan participants with

“fuller and fairer” claims and appeal procedures. See ERISA

Claim Procedure, 65 Fed. Reg. at 70,252 (emphasis supplied).

the Tenth Circuit’s assertions regarding the DOLs

intent unpersuasive. This confusion is further fueled by

the Secretary of Labor’s statements regarding its intent

(as it relates to this exact issue), in its Amicus Curiae

brief filed in 2002 in the Southern District of California

District Court. See Brief for Plaintiff as Amici Curiae,

Russo v. Hartford Life & Acc. Co., No. Civ. 00-938, 2002

WL 32138296 (S.D. Cal. Feb. 5, 2002). The Secretary

explained that the regulation does not limit a

participant’s right to review and respond to evidence

gathered by an administrator prior to the initial denial

of benefits, but rather includes all documents that a plan

administrator relied on in rendering its final benefit

determination. See id. at 9 (emphasis supplied). The

Secretary provided that the “purpose of the regulation

is to give claimants the right to review evidence used to

deny a claim at a time when they have a reasonable

opportunity to address it - - without regard to when the

plan obtained it.” Jd. at 10 (citation omitted). The

Secretary explained:

The right to submit issues and comments in

writing would be meaningless if the claimant

did not have access to those documents which

formed the basis for the ultimate denial of the

claim. The regulation cannot be fairly

interpreted to authorize plans to gather new

evidence after the initial denial, use the

evidence to affirm the denial on appeal, but

never give the claimant the opportunity to

challenge the evidence upon which the plan

ultimately relies . . . . This result is exactly

what the regulation was intended to avoid, and

it wastes the often limited resources of

disabled ERISA plan participants, plans, and

the courts by fostering litigation rather than

administrative claim resolution.

Id. at 11.

The Tenth Circuit’s criticism of the Abram decision

would likely apply to Secretary’s stated intention in

promulgating 29 C.F.R. § 2560.503-1 in its Amicus

Curiae brief filed in Russo, as the claim in Russo was

subject to the pre-2000 amendments to the regulations

because it was filed prior to 2002. However, the

Secretary filed its brief in Russo on November 20, 2001,

almost two years after the amendments to the

regulations were enacted. If the Secretary intended the

2000 amendments to the regulations to alleviate a plan

administrator’s responsibility to produce and allow

participants to respond to evidence gathered during the

appeals process, it is highly unlikely that it would have

felt compelled to file an amicus brief in late 2001 in a

district court case, adamantly advocating that the

regulations required participants to be provided with

the opportunity to review and respond to evidence

gathered during the appeals process. However, given

the fact that the DOL has not directly spoken to its intent

in a claim applying the 2000 amendments to the

regulations, the conflict within the circuit courts and the

district courts regarding the intent of the DOL in

promulgating 29 C.F.R. § 2560.503-1(h) will most

certainly continue. Resolution of this matter is essential

to ensure that the courts interpret the regulation

consistent with the purpose of the ERISA statute and

DOL regulations. This conflict can only be resolved by

this Honorable Court and this case presents an ideal

vehicle to provide such a resolution.

II. This Honorable Court Should Grant This Petition

Because The Eleventh’s Circuit’s Decision

Contravenes The Purpose Of The DOL

Regulations And Frustrates The ERISA

Administrative Process Intended By Congress

And Fostered By The DOL Regulations.

The Eleventh Circuit’s decision that Reliance

Standard did not deprive Glazer.of a full and fair review

when she was not afforded the opportunity to review

and respond to appeal-level evidence gathered by

Reliance Standard that was ultimately used against her

to support a final benefit determination, and the similar

holding by Metzger in the Tenth Circuit, should be

reviewed and reversed by this Honorable Court.

First, the Eleventh Circuit’s holding that (1) the

DOL regulations require the disclosure of “relevant”

documents at only two distinct stages: following an initial

adverse benefit determination and again following a final

adverse benefit determination, and (2) that the sole

purpose for the production of documents by the

administrator is to enable a claimant to evaluate whether

to appeal an adverse determination, is contrary to both

the broad and specific purposes of the DOL regulations.

Glazer, 524 F.3d at 1246. In its opinion, the Eleventh

Circuit asserted that according to 29 C.F-R. §2560.503-

1(h)(2)(iii), only “relevant” documents are required to

be disclosed by an administrator to a participant, and

that a document only becomes “relevant” * once it “[w]as

8. As the DOL determined that the word “pertinent”

created substantial confusion as to the type of documents that

plan administrators must disclose to plan participants, in the

(Cont'd)

relied upon” or ‘[wJas submitted, considered, or

generated in the course of making the benefit

determination.” Jd. The Eleventh Circuit’s reasoning

— because the appeal-level medical reports at issue in

Glazer were not “relied upon” or “used in the course of

making the determination” until Reliance Standard had

actually made the final adverse benefit determination,

disclosure was not required because the documents were

not relevant until the final decision was made — is flawed.

Id. As the Secretary of Labor explained in its Amicus

(Cont’d)

2000 amendments to the regulation, the word “pertinent” was

replaced with the word “relevant.” ERISA Claims Procedure, 65

Fed. Reg. at 70,252. Under the pre-amendment regulations the

DOL merely defined “pertinent documents” as “documents

relating to the denial.” See Brief for the Plaintiff at 10, Russo v.

Hartford Life & Acc. Co., No. 00-938, 2002 WL 32138296 (S.D. Cal.

Feb. 5, 2002) (citing Claims Procedure for Employee Benefit Plans,

42 Fed. Reg. 27,426 (May 27, 1977) and explaining, that “pertinent

documents” includes “all documents gathered by the plan and

relied upon to affirm the imitial denial”). However, in an attempt

to clarify the type of documents that must be disclosed, the DOL

added more enconipaasing language to the definition of “relevant

documents” to include all documents which were “relied upon in

making the determination, or was submitted to the plan,

considered by the plan, or generated in the course of making the

benefit determination, without regard to whether such document,

record, or other information was relied upon in making the

determination.” ERISA Procedure, 65 F‘R. at 70,252. Thus, the

2000 regulations were amended merely to clarify the type of

documents that required disclosure, as contemplated by the 1977

regulations, which the DOL subsequently explained must be

disclosed “at a time when [plan participants] have a reasonable

opportunity to address it.” Brief for the Plaintiff at 10, Russo v.

Hartford Life & Acc. Co., No. 00-938, 2002 WL 32138296 (S.D. Cal.

Feb. 5, 2002).

Curiae brief filed in Russo, “the language of the claims

regulation does not limit a plan’s duty to disclose

‘pertinent’ documents’ to evidence received or

developed by the plan prior to the initial claim denial.”

Brief for the Plaintiff at 9, Russo v. Hartford Life &

Acc. Co., No. Civ. 00-938, 2002 WL 32138296 (S.D. Cal.

Feb. 5, 2002). Instead, the Secretary explained, the

right to review and respond “applies to all documents

gathered by the plan and relied upon to affirm the initial

denial.” Jd. at 9-10.

The Eleventh Circuit’s contention that according to

the DOL the sole purpose for the “production of these

documents is to enable a claimant to evaluate whether

to appeal an adverse determination,” and holding that

“(djocuments produced before a decision is made would

not assist a claimant in deciding whether to pursue an

appeal because the claimant would not yet know if there

had been an adverse determination,” places constraints

on the disclosure of documents that are simply not found

in the DOL regulations. Glazer, 524 F'3d at 1246. While

29 C.FR. § 2560.503-1 sets minimum requirements in

the disclosure of relevant documents, nothing in the

regulation limits disclosure of evidence gathered by the

administrator during the administrative appeals process

prior to the final benefit determination. Furthermore,

according to the Secretary, the “purpose of the

regulation is to give claimants the right to review

evidence used to deny a claim at a time when they have

a reasonable opportunity to address it — without regard

to when the plan obtained it.” Brief for the Plaintiff at

10, Russo v. Hartford Life & Acc. Co., No. Civ. 00-938,

9. See supra note 9.

2002 WL 32138296 (S.D. Cal. Feb. 5, 2002) (citation

omitted). The Secretary has explained:

The right to submit issues and comments in

writing would be meaningless if the claimant

did not have access to those documents which

formed the basis for the ultimate denial of the

claim. The regulation cannot be fairly

interpreted to authorize plans to gather new

evidence after the initial denial, use the

evidence to affirm the denial on appeal, but

never give the claimant the opportunity to

challenge the evidence upon which the plan

ultimately relies ....

Id. at 11.

Second, the effect of the incorrect decision by the

Eleventh Circuit in Glazer has far reaching implications

that affect the procedural due process rights of ERISA

participants which are at the heart of the ERISA

administrative process. The Eleventh Circuit’s decision

is this: at no stage in the administrative or litigation

process is an ERISA participant like Glazer permitted

to test the credibility of an administrator’s appeal-level

physician’s opinions, proffer evidence to rebut his

conclusions, or properly prepare and present her claim

prior to the closure of the administrative record. The

Eleventh Circuit’s decision has the effect of allowing plan

administrators to solicit and place evidence into the

administrative record, which it ultimately uses against

a plan participant, while forever barring participants

from bringing forth rebuttal evidence at the

administrative level or before the court in litigation.

Essentially, plan administrators are being enabled to

insulate the evidence it uses against plan participants

from any meaningful challenge, forcing the reviewing

court to render a decision on the administrator’s

ultimate determination without being privy to the

participant’s response, and while shrouding the

administrator’s decision in deference. Not only does this

deny participants procedural due process rights in

satisfying their burden of proof in their ERISA benefit

claim,” but it is simply contrary to the foundation of a

“full and fair review” under ERISA that requires

“knowing what evidence the decision-maker relied upon,

having an opportunity to address the accuracy and

reliability of that evidence, and having the decision-

maker consider the evidence presented by both parties

prior to reaching and rendering his decision.” Brief for

the Plaintiff at 12, Russo v. Hartford Life & Acc. Co.,

No. Civ. 00-938, 2002 WL 32138296 (S.D. Cal. Feb. 5,

2002) (citing Grossmuller, 715 F.2d at n.5).

This holding, which has the effect of depriving a

participant of procedural due process, disturbs the

balance required to allow the ERISA administrative

framework to carry out the purpose intended by the

DOL, Congress, and the circuit courts. ERISA and the

10. It is uniformly held that it is an ERISA participant’s

burden to prove entitlement to benefits, which the Eleventh

Circuit also required in Glazer. 524 F.3d at 1247. This could entail

proving that one is “disabled” under the plan terms and entitled

to disability benefits, or proving that a procedure was

“medically necessary” and as such covered by a health insurance

plan, or the like depending upon the type of plan benefit, despite

the administrator proffering contrary evidence to deny the

benefit claim.

respective DOL regulations were created to foster a

comprehensive and fair administrative system for the

efficient resolution of ERISA benefit claims.'! Inherent

in this process are the concepts of exhaustion of

administrative remedies and a deferential standard of

judicial review. The exhaustion requirement promotes

the administrative resolution of claims and alternatively

assists the courts in resolving ERISA benefit

controversies by presenting to the court fully considered

decisions, in which it can afford deference to the

administrator’s decision. However, only if crucial

procedural rights are afforded a participant, is the

11. See Grossmuller, 715 F.2d at 857, explaining:

The House conference report accompanying the act

directed courts to regard ERISA civil actions

brought by participants and beneficiaries ‘as rising

under the laws of the United States in similar

fashion to those brought under § 301 of the Labor

Management Relations Act of 1947.’ H.R. Rep. No.

93-807, 93d (1973), reprinted in 1974 U.S.C.C.A.N.

4639, 5107. Within the labor context federal courts

have consistently favored internal resolution

procedures in order to promote orderly settlement

of disputes, to assure uniform processing and

treatment of claims, and to avert whenever possible

the expense and delay incident to resort to the

courts. See generally Hines v. Anchor Motor Freight,

Inc., 424 U.S. 554, (1976), and Vaca v. Sipes, 386 U.S.

171 (1967). See also, 29 U.S.C. § 173(d). ERISA also

endorsed this policy by conferring broad managerial

discretion upon the pension plan trustees, who

are primarily responsible for devising and

implementing claims procedures.

(citations omitted).

‘

;

’

—

SP le We oe ed De

| administrator deserving of the deference granted it by

the courts. As the Secretary of Labor explained in its

Amicus Curiae brief filed in Russo:

ee ae Bs

The claims regulations must be construed in

a manner that protects claimants, plans, and

the courts. For claimants, knowledge of the

evidentiary basis for the decision ensures that :

they have a reasonable opportunity to !

understand the evidence on which the decision

will be based and to supplement that evidence ‘aa

if appropriate without resorting to litigation .

... For plans and the courts, the claimant’s

opportunity to review and address evidence

used to deny the claim ensures that the final

decision is based upon a complete and

accurate record — the underlying premise

that supports both the deferential standard

of review and the exhaustion of administrative

remedies requirements.

Brief for the Plaintiff at 16, Russo v. Hartford Life &

Ace. Co., No. Civ. 00-938, 2002 WL 32138296 (S.D. Cal.

Feb. 5, 2002) (citations omitted).

Furthermore, an interpretation of the DOL

regulations that requires plan administrators to provide

participants with an oppertunity to review and respond

to appeal-level evidence, ultimately utilized against the

participant, prior to the final benefit determination, is

consistent with the requirement that an ERISA

participant exhaust her administrative remedies. Brief

for the Plaintiff at 14, Russo v. Hartford Life & Acc.

Co., No. Civ. 00-938, 2002 WL 32138296 (S.D. Cal. Feb.

5, 2002). This requirement is frustrated if plan

participants are unable to discover the evidentiary basis

for the administrator’s decision until their only option

is a lawsuit. Moreover, it contravenes one of the chief

goals of ERISA, which is to promote the administrative

resolution of ERISA benefit claims." Still further, the

deferential review standard applied in most ERISA

cases’® renders the protections provided by the

regulations even more significant. In most cases, the

administrative review process is the plan participant’s

only opportunity to present her claim, to correct errors

made by the administrator in reviewing the claim, and

to supplement the administrative record prior to judicial

review. Under these constraints, an administrator

depriving a plan participant of the right to review and

respond to evidence used against her and then hiding

behind the cloak of deference is certainly not in concert

with the concept of a full and fair review or the

protections afforded participants under ERISA.

Furthermore, the rule of Glazer and Metzger creates

the incentive for conflicted administrators to refuse to

engage in a meaningful dialogue with the claimant

during the initial claim phase, refrain from fully

investigating initial claims, and to gather and submit

evidence into the administrative record only after an

appeal is submitted, when the claimant is foreclosed

12. See supra note 11.

13. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,

115 (1989), (holding that the default standard of review is

de novo unless “the benefit plan gives the administrator or

fiduciary discretionary authority to determine eligibility for

benefits or to construe the terms of the plan,” then an arbitrary

and capricious standard of review applies).

‘

;

from ever responding to the previously undisclosed

information. As the Secretary of Labor provided in its

Amicus Curiae brief filed in Russo, “an interpretation

of the regulation that allows plans to withhold evidence

used to justify a claim denial undermines the rationale

for limiting the court’s review of evidence to what was

before the plan.” Brief for the Plaintiff at 15, Russo v.

Hartford Life & Acc. Co., No. Civ. 00-938, 2002 WL

32138296 (S.D. Cal. Feb. 5, 2002).

Allowing plan participants an opportunity to review

and respond to evidence gathered by the administrator

prior to the final benefit determination ensures that

participants receive the fullness and fairness of review

contemplated by 29 U.S.C. § 1133 and its accompanying

DOL regulations. It also ensures that that chief goals

of ERISA, including the promotion of administrative

resolution of claims and that any adverse claim

determinations are based on a complete administrative

record, are furthered. The issue before this Honorable

Court has far reaching implications for a substantial

portion of the population and promotes non-uniform

claims administration under ERISA. Resolution of this

matter is imperative to prevent frustration of the ERISA

administrative process intended by Congress and the

DOL.

CONCLUSION

For the foregoing reasons, petitioner respectfully

requests the Court to grant the petition for a writ for

certiorari in this case.

Respectfully submitted,

ALICIA PAULINO-GRISHAM

DI Law Group

1111 Hypoluxo Road

Suite 110

Lantana, Florida 33462

(561) 202-9170

Attorneys for Petitioner

ep Oe ee ee ese >

APPENDIX A— OPINION OF THE :

UNITED STATES COURT OF APPEALS 3

FOR THE ELEVENTH CIRCUIT

DATED APRIL 21, 2008

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

No. 06-15855

PRISCILLA GLAZER, :

3 Plaintiff-Appellant, f

RELIANCE STANDARD LIFE INSURANCE

4 COMPANY, a Pennsylvania Corporation,

Defendant-Appellee.

: April 21, 2008

Appeal from the United States District Court for the

Southern District of Florida.

Before BIRCH, PRYOR and KRAVITCH, Circuit

Judges.

PRYOR, Circuit Judge:

This appeal raises an issue of first impression in this

Circuit under the Employee Retirement Income

Security Act of 1974: when medical reports relied on by

‘

;

Appendix A

a plan administrator during the review of a denial of

benefits must be produced to the claimant for her to

receive a “full and fair review.” 29 U.S.C. § 1133(2).

Priscilla Glazer appeals a summary judgment against

her complaint about the denial of her application for long

term disability benefits by Reliance Standard Life

Insurance Company. /d. § 1132(a)(1)(B). Glazer argues

that Reliance failed to provide her with a “full and fair

review” of its initial decision to deny her application for

benefits, the district court applied an incorrect standard

of review, and Reliance wrongly denied her benefits.

We reject Glazer’s argument that Reliance denied her

a “full and fair review”; the pertinent federal regulations

did not require Reliance to produce the medical reports

requested by Glazer during the pendency of the review.

We also conclude that the district court applied the

correct standard of review and the decision of Reliance

to deny Glazer’s application for benefits was right.

We affirm.

I. BACKGROUND

For several years, Glazer was employed as a senior

technical writer for The Ultimate Software Group, which

offered employees insurance for long-term disability

with a plan provided by Reliance. The plan granted

Reliance discretion “to determine eligibility for benefits.”

The plan also provided that an insured is “totally

disabled” if the insured “cannot perform the substantial

and material duties of his/her regular occupation.”

Glazer began to experience pain in her shoulders in 1996

and has since been diagnosed with several conditions,

‘

Appendix A

including myofascial pain syndrome, fibromyalgia,

cervical spondylosis, chronic cervical strain, and

radiculopathy.

In June 2003, Glazer stopped working based on the

recommendation of her physician, Dr. Thomas Hoffeld,

and Glazer applied for disability benefits under the plan.

During the fall of 2003, Hoffeld found that Glazer had

difficulty typing and that she could sit only 33 percent

of the time.

On January 13, 2004, Reliance approved Glazer’s

application. In April 2004, Hoffeld opined that he did

“not see [Glazer] returning” to work. Dr. Alan Novick

began treating Glazer in October 2003 and noted

improvement of her pain in May 2004.

In March 2004, Reliance requested updated medical

records from Glazer’s physicians. Hoffeld did not

respond to the request. On May 7, 2004, Novick

represented on a form provided by Reliance that Glazer

could sit continuously; perform basic physical activities,

including simple grasping and fine manipulation; and

work at a sedentary level. Based on an interview of

Glazer, Novick’s representations, and job descriptions

of Glazer’s occupation, Reliance concluded that Glazer

was able to perform the requirements of her job.

In July 2004, Reliance terminated Glazer’s long-

term disability benefits. Glazer visited Dr. Benjamin

Lechner, whom she had not seen since February 2003.

Glazer submitted to Reliance a report prepared by

Appendix A

Lechner in which he reviewed her medical conditions,

noted she could not use a computer, and opined that

Glazer was “disabled for gainful employment due to this

condition.” Glazer also requested that Reliance review

its benefits determination.

Glazer saw Novick in July 2004, and Novick reported

that Glazer was feeling better and had remained stable.

Novick saw Glazer once in November 2004, twice in

February 2005, and once in March 2005. During these

examinations, Glazer complained of increased pain, but

Novick’s description of her condition remained

consistent.

As part of the review of its decision to terminate

Glazer’s benefits, Reliance submitted Glazer’s medical

records to Dr. William Hauptman for an independent

peer review. After reviewing Glazer’s records,

Hauptman concluded that Novick’s evaluation of

Glazer’s capabilities in May 2004 was consistent with

her medical records. Hauptman reasoned that the

improvements in Glazer’s physical capabilities after

Hoffeld’s evaluation in 2003 were the result of Novick’s

treatment. Hauptman also concluded that there was no

medical evidence to support Glazer’s complaints of

increased pain.

After its review, Reliance denied Glazer’s application

for long term disability benefits. Glazer filed this action

in the district court. The district court granted summary

judgment in favor of Reliance.

Appendix A

Il. STANDARD OF REVIEW

We review a summary judgment de novo. Williams

v. BellSouth Telecomms., Inc., 373 F.3d 1132, 1134 (11t

Cir.2004). :

III. DISCUSSION

We evaluate Glazer’s arguments in three parts.

First, we consider whether Reliance denied Glazer a “full

and fair review.” Second, we consider whether the

district court applied the correct legal standard. Third,

we consider whether the decision of the plan

administrator was “wrong.”

A. To Provide Glazer a “Full and Fair Review,”

Reliance Was Not Required to Produce

Hauptman’s Report Earlier.

Glazer argues that she was not provided a “full and

fair review” of the denial of her request for benefits as

required by ERISA. 29 U.S.C. § 1133(2). If benefits are

denied, section 1133 requires the plan administrator,

“{iJn accordance with regulations of the Secretary,” to

provide a “full and fair review . .. of the decision denying

the claim.” Jd. § 1133. The administrator must “[p}rovide

... upon request... all documents, records, and other

information relevant to the claimant’s claim for benefits”

for the review to qualify as a “full and fair review.”

29 C.ER. § 2560.503-1(h)(2)(iii). The plan administrator

must also “take[ ] into account all comments, documents,

records, and other information submitted by the

claimant relating to the claim.” /d. § 2560.503-1(h)(2)(iv).

Appendix A

Glazer argues that the failure of Reliance to provide

her with a copy of the report produced by Hauptman

during the pendency of the review of the initial denial

of benefits deprived her of a “full and fair review.”

Reliance responds that it was not required to produce

the documents it relied upon while it reviewed the initial

denial of benefits; the production occurs after a final

decision is reached. We agree with Reliance.

Glazer’s argument is contrary to the plain text of

the regulations. Subsection (h)(2)(iii) requires the plan

administrator to produce all “relevant” documents. A

document is relevant if it “[w]Jas relied upon” or “[wJas

submitted, considered, or generated in the course of

making the benefit determination.” Jd. § 2560.503-

1(m)(8)(i)-(ii). Reliance had not “relied upon” the

Hauptman report or used the report “in the course

of making the benefit determination” until the

determination had been made. After Reliance reached

its final decision, all relevant documents generated

during the review and initial claim determination had

to be produced to the claimant. Jd. § 2560.503-1(i)(5).

This requirement would be superfluous if the claimant

had a right to the documents during the pendency of

the review. See Kornblau v. Dade County, 86 F.3d 193,

195 (11th Cir.1996) (courts should avoid rendering other

provisions of a regulation superfluous or inoperative).

The only other circuit court that has decided this

issue reached the same conclusion as we do. The Tenth

Circuit held, in Metzger v. UNUM Life Insurance

Company of America, that “subsection (h)(2)(iii) does

Appendix A

not require a plan administrator to provide a claimant

with access to the medical opinion reports of appeal-

level reviewers prior to a final decision on appeal.” 476

F:3d 1161, 1167 (10th Cir.2007). The court explained that

requiring these documents to be produced earlier would

create “an unnecessary cycle of submission, review, re-

submission, and re-review.” Jd. at 1166. The court agreed

with the Department of Labor that the purpose of the

production of these documents is to enable a claimant

to evaluate whether to appeal an adverse determination.

Id. at 1167 (quoting ERISA Claim Procedure, 65

Fed.Reg. 70,246, 70,252 (Nov. 21, 2000)). Documents

produced before a decision is made would not assist a

claimant in deciding whether to pursue an appeal

because the claimant would not yet know if there has

been an adverse determination. /d.

B. The District Court Applied the

Correct Legal Standard.

Glazer argues that the district court erred when it

granted summary judgment because there were factual

disputes about whether Glazer was disabled, but this

argument misunderstands our standard of review. Our

review of a denial of benefits is for whether the decision

of the administrator was arbitrary and capricious. Jett

v. Blue Cross & Blue Shield of Ala., 890 F:2d 1137, 1139

(11th Cir.1989). “When conducting a review of an ERISA

benefits denial under an arbitrary and capricious

standard (sometimes used interchangeably with an

abuse of discretion standard), the function of the court

is to determine whether there was a reasonable basis

Appendix A

for the decision, based upon the facts as known to the

administrator at the time the decision was made.” /d.

“(W]e review both the administrator’s construction of

the plan and concomitant factual findings.” See

Paramore v. Delta Air Lines, Inc., 129 F.3d 1446, 1451

(11th Cir.1997).

This Court has created “a well-defined series of steps

in reviewing a denial of benefits decision in an ERISA

case” to determine whether the decision of the

administrator was arbitrary and capricious. Tippitt v.

Reliance Standard Life Ins. Co., 457 F.3d 1227, 1231-32

(llth Cir.2006). “At each step, the court makes a

determination that results in either the progression to

the next step or the end of the inquiry.” /d. at 1232

(quoting HCA Health Servs. of Ga., Inc. v. Employers

Health Ins. Co., 240 F.3d 982, 993 (11th Cir.2001))

(internal quotation marks omitted). First, the court

“examin[es] the plan documents to determine whether

they grant the administrator discretion” in making

benefit determinations. /d. If the administrator has

discretion under the plan, “then at a minimum, the court

applies arbitrary and capricious review and possibly

heightened arbitrary and capricious review.” Jd. (quoting

HCA, 240 F:3d at 993) (internal quotation mark omitted).

Under either form of review, the court is limited to “the

facts as known to the administrator at the time the

decision was made.” Jett, 890 F.2d at 1139.

“(Rjegardless of whether the arbitrary and

capricious review or the heightened form of that

standard of review applies,” the court reviews the

Appendix A

decision by the administrator to determine whether it

was “wrong.” Tippitt, 457 F.3d at 1232; see also Levinson

v. Reliance Standard Life Ins. Co., 245 F.3d 1321, 1326

(11th Cir.2001) (quoting Brown v. Blue Cross & Blue

Shield of Ala., Inc., 898 F.2d 1556, 1566 n. 12 (11th

Cir.1990)). A decision is “wrong” if, after a review of the

decision of the administrator from a de novo perspective,

“the court disagrees with the administrator’s decision.”

Williams, 373 F.3d at 1138 & n. 8. The court must |

consider, based on the record before the administrator

at the time its decision was made, whether the court

would reach the same decision as the administrator. If

the court determines that the plan administrator was

right, the analysis ends and the decision is affirmed.

Tippitt, 457 F.3d at 1232.

Glazer’s argument that the district court applied the

wrong standard fails. Although there was‘a dispute

about whether Glazer was disabled, there was no dispute

about what was in the record when Reliance made its

decision. The district court had to review that record

and decide whether the resolution of the dispute by

Reliance was wrong. The district court reviewed the

record and determined that the decision by Reliance

was right, which ended the analysis of whether the

decision of Reliance was arbitrary and capricious. /d.

The district court applied the correct standard of review.

10a

Appendix A

C. The Decision by Reliance to Deny Benefits

Was Right.

Glazer also contends that the record establishes that

she is entitled to disability benefits. To evaluate that

argument, we consider, as the district court did, whether

the decision of Reliance was “wrong.” Jd. We are limited

to the record that was before Reliance when it made its

decision. Jett, 890 F.2d at 1139. Glazer bears the burden

to prove that she is disabled. Horton v. Reliance

Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th

Cir.1998).

The denial of Glazer’s application for benefits by

Reliance was not wrong. Giazer failed to establish that

she is disabled. Glazer asserts that the record “clearly

demonstrated” that she is disabled under the plan, but

she fails to explain how her condition prevents her from

performing the “substantial and material” duties of her

occupation.

The only support in the record for Glazer’s position

is Hoffeld’s statement and Lechner’s report, but that

support is unpersuasive. Hoffeld stated that Glazer was

not capable of performing her occupation in April 2004,

but his opinion was formed before Novick’s treatment

led to an improvement in Glazer’s condition in May 2004.

Hoffeld also failed to respond to the request from

Reliance for updated medical records. Lechner opined

that Glazer was “disabled” in July 2004, but Lechner,

who had not seen Glazer in over one year, expressed an

opinion that was contrary to both the contemporaneous.

PO tn pee eee aE ail

lla

Appendix A

observations of Novick and the independent peer

review by Hauptman. Neither Hoffeld nor Lechner

compared Glazer’s physical capabilities with the

requirements of her occupation.

The record contains ample evidence that Glazer is

not disabled within the meaning of the policy. Her

physician, Novick, reported that she was capable of

sitting for an eight-hour day, frequent walking, standing,

climbing stairs, and simple grasping with her hands.

Reliance compared this information about her physical

capabilities with a description of her job and determined

that she was capable of performing her job

requirements. Reliance also relied on the opinion of its

reviewing doctor, Hauptman, who reviewed Glazer’s

medical records and stated that the record supported

Novick’s findings and that she was capable of working.

We agree with the district court that Glazer failed

to establish that she was totally disabled. Because we

conclude that Reliance was right, our analysis of the

denial of Glazer’s application ends. The district court

was correct to enter summary judgment in favor of

Reliance.

IV. CONCLUSION

We AFFIRM the summary judgment in favor of

Reliance Standard Life Insurance Company.

AFFIRMED.

12a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

DATED AND FILED SEPTEMBER 25, 2006

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 06-60112-CIV-

MIDDLEBROOKS/JOHNSON

PRISCILLA GLAZER,

Plaintiff,

vs.

RELIANCE STANDARD

LIFE INSURANCE COMPANY,

Defendant.

ORDER ON DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT

THIS CAUSE comes before the Court on the

Defendant’s Motion for Summary Judgment (DE 27)

filed on July 21, 2006. Plaintiff responded in opposition

to Defendant’s Motion (DE 29-31). Defendant filed a

Reply (DE 32). The Court has reviewed the record, the

submissions of counsel, the relevant statutory and case

law, and is otherwise fully advised in the premises.

13a

Appendix B

Introduction

The following facts are taken from the submissions

of the parties, including Defendant’s Motion for

Summary Judgment, Plaintiff’s Response in Opposition

to the Motion to Summary Judgment, the Memorandum

of law in support of her Opposition, and Defendant’s

Reply.

This case involves a claim for long-term disability

benefits brought by Plaintiff Priscilla Glazer (“Glazer”),

who was a senior technical writer for The Ultimate

Software Group. Defendant Reliance Standard Life

Insurance Company (“Reliance”) insured the long-term

disability plan (“Plan”) used by The Ultimate Software

Group.

Glazer’s job entailed writing software documentation,

software release notes, computer reports, and

communicating via email. As early as 1996, Glazer had

pain in her shoulder when using a computer. She

continued to work despite this pain and sought medical

treatment from her family physician, Dr. Mark H. Lazar.

Eventually, in 2003 she reported an increase in pain and

began to see other doctors for treatment.

In 2003, Glazer went to see Dr. Thomas A. Hoffeld,

specializing in orthopaedics, complaining of increased

pain in her shoulders, arms, and hands. At that time,

Hoffeld advised her to stay out of work a couple days

and then return with no restrictions. She continued to

see Hoffeld and to report an increase in her symptoms.

[

l4a

Appendix B

By June 2003, Hoffeld recommended she stop working,

at least temporarily to “let things settle down a bit.”

She continued to have pain in her neck and reported

pain from her neck to her left shoulder. Hoffeld reported —

“limited motion in all parameters of cervical range of

motion,” but “upper extremities show[ed] good range

of motion.” Glazer tried using a special pillow and a

cervical collar. She continued to have trigger points of

pain which she reported were especially present when

she used her mouse. During the following couple months,

the pain continued. Glazer had diagnoses of arthritis,

osteopenia, and myalgia/myositis. She underwent

physical therapy, got diagnostic testing, and tried

medically to keep her pain under control. By late

August, Hoffeld determined Glazer was not a surgical

candidate and recommended she see a physiatrist to help

her with pain management. Glazer was also seeing Dr.

Benjamin Lechner, a rheumatologist, who had diagnosed

her with Fibromyalgia and Myofascial pain. He treated

her with various medications and recommended home

exercise and relaxation techniques to help her with her

symptoms.

Glazer continued to stay out of work. In October

2003, Glazer went to see Dr. Alan Novick, a physiatrist,

for an evaluation of her chronic neck pain. Novick’s

treatment included trying various medications to help

her with her pain. Novick also recommended home

exercise and physical therapy. In April 2004, Novick saw

little improvement in her condition and determined

trigger point injections were appropriate. Glazer

continued on some medication and received the trigger

i ee ee

‘

;

1Sa

Appendix B

point injections. In May 2004, after having received the

trigger point injections, Novick’s notes indicate that

Glazer was “doing better with the pain.” During that

visit, Glazer was advised not to hold her head in one

position for a prolonged period of time such as during

reading and to take frequent breaks to avoid the

tightening of muscles.

In the meantime in 2003, Glazer made her claim for

long-term disability under the Plan. The Plan’s

definition of totally disabled was that “an Insured cannot

perform the substantial and material duties of his/her

regular occupation.” In January 2004, Reliance

approved her claim determining that she became

disabled on June 13, 2003. In March 2004, Reliance

referred Glazer’s matter to a rehabilitation service,

Paramount, for an evaluation. Paramount interviewed

Glazer, who expressed doubt as to whether she could

physically resume any type of gainful employment.

Glazer continued to have constant cervical pain. She

reported that she was able to drive and perform

household tasks, including cooking, cleaning, and

laundry. As part of its evaluation, Paramount sought

updated medical information from Hoffeld and Novick.

Only Novick responded. In response to Paramount’s

request, on May 20, 2004, Novick completed a physical

capacities form (“PCQ”). The PCQ asked specific

questions about Glazer’s physical capabilities. Novick

indicated Glazer could sit continuously, stand, walk, and

climb stairs frequently, and perform sedentary lifting.

In evaluating Glazer’s upper extremities, Novick

indicated she could frequently perform simple grasping

16a

Appendix B

and fine manipulation and occasionally reach above her

mid chest, waist/desk level, and pull/push. Paramount

evaluated these limitations with the definition of a

writer for technical publications as published in the

Dictionary of Occupational Titles published by the

Department of Labor (“DOT definition”). The DOT

general definition defined her position as a sedentary

one which occasionally required lifting, carrying,

pushing, and pulling of ten pounds, but was mostly

sitting and may involve standing or walking for brief

periods of time. Based on Novick’s PCQ and the DOT

definition, Reliance determined, with Paramount’s

assistance, that Glazer was able to perform her

sedentary level job. Reliance informed Glazer of this by

letter in July 2004.

During this time, Glazer continued to see Novick

and in July 2004 went to see Lechner again after having

not seen him since February 2003. At his July 2004

evaluation of Glazer, Novick reported that she remained

stable and functional on her current medication regime

so she would continue on that. Lechner, on the other

hand, opined in that same month that Glazer was

disabled from gainful employment, diagnosing her with

cervical spondylosis with nerve root compression. In

September 2004, Glazer presented to Novick with new

pain and stiffness. Novick prescribed medication and

recommended doing blood work to check for additional

causes of her pain.

17a

Appendix B

Glazer appealed Reliance’s decision. During the

appeal, Reliance attempted to have an independent

medical examination (“IME”) of Glazer completed.

However, the IME was not completed. Glazer went to

the examination with her lawyer and a court reporter.

The doctor conducting the IME informed them that they

could not all fit in the examining room. The doctor

offered to participate in a deposition after the

examination was completed, but Glazer did not accept

that offer. Instead she did not go through with the IME.

Reliance did not try to schedule another IME. Instead,

Reliance asked Dr. William Scott Hauptman to do an

independent review of Glazer’s medical records.

In Hauptman’s initial review of Glazer’s file, he noted

that the physical capabilities indicated by Novick in the

May 2004 PCQ were of a greater capacity than those

indicated in her records from December 2003 and while

subsequent records, such as that from Lechner in July

2004, indicated a possible deterioration, for a specific

determination Hoffeld would have to obtain more

medical records from all medical providers. In closing,

Hauptman opined that the “[m]edical records presented

for review currently do not provide an objective medical

basis upon which to support the paticnt’s increased

subjective complaints documented by Dr. Lechner, July

13, 2004.” In his second report, after having reviewed

additional medical records, Hauptman opined that the

physical capacities documented by Novick in May 2004

were consistent with the medical records presented to

him through the last office visit, September 29, 2004,

with Novick. Hauptman opined that the medical records

18a

Appendix B

did not support the possibility of deterioration and while

Glazer presented to Novick with new pain in her finger,

such pain did not significantly impact the capacities of

her upper extremities as outlined by Novick in May 2004.

Hauptman conducted a third review of Glazer’s claim in

May 2005 after having received additional medical

records. Hauptman reviewed medical records through

March 2005 and noted that while in February 2005 Glazer

had an increase in pain, on March 10, 2005, Glazer

reported to Novick that she felt slightly better than her

last visit and Novick determined it was not necessary

to restart Glazer on the Duragesic patch. In conclusion,

Hauptman again found nothing new in Glazer’s medical

records that negated Novick’s May 2004 evaluation of

her physical capacities. Based on Hauptman’s review

and a review by rehabilitation services, Reliance denied

Glazer’s appeal determining that she “is capable of

performing her own occupation.”

The Plan includes the following provision under the

claims provisions section:

Reliance Standard Life Insurance Company

shall serve as the claims review fiduciary with

respect to the insurance policy and the Plan.

The claims review fiduciary has the

discretionary authority to interpret the Plan

and the insurance policy and to determine

eligibility for benefits. Decisions by the claims

review fiduciary shall be complete, final and

binding on all parties.

19a

Appendix B

Reliance was the claims administrator of the Plan

and the fiduciary charged with making benefit

determinations under the Plan. As a result of this

termination of benefits, Glazer brought this action

pursuant to the Employee Retirement Income Security

Act of 1947 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B).

Legal Standard

Summary judgment is appropriate only when there

are no genuine issues of material fact and the movant is

entitled to judgment as a matter of law. See Fed. R. Civ.

P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The moving party bears the burden of meeting this

exacting standard. See Adickes v. S.H. Kress & Co., 398

U.S. 144, 157 (1970). In applying this standard, the

evidence, and all reasonable factual inferences drawn

therefrom, must be viewed in the light most favorable

to the non-moving party. See Arrington v. Cobb County,

139 F:3d 865, 871 (11th Cir. 1998); Allen v. Tyson Foods,

Inc., 121 F.3d 642, 646 (11th Cir. 1997).

The non-moving party, however, bears the burden

of coming forward with evidence of each essential

element of their claims, such that a reasonable jury

could find in their favor. See Earley v. Champion Int'l

Corp., 907 F.2d 1077, 1080 (11th Cir. 1990). The non-

moving party “[mJay not rest upon the mere allegations

and denials of [its] pleadings, but [its] response . .. must

set forth specific facts showing that there is a genuine

issue for trial.” Fed. R. Civ. P 56(e). “The mere existence

of a scintilla of evidence in support of the [non-movant’s]

20a

Appendix B

position will be insufficient; there must be evidence on

which the jury could reasonably find for the

[non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986). Further, conclusory, uncorroborated

allegations by a plaintiff in an affidavit or deposition will

not create an issue of fact for trial sufficient to defeat a

well supported summary judgment motion. See Earley,

907 F.2d at 1081. The failure of proof concerning an

essential element of the non-moving party’s case

necessarily renders all other facts immaterial and

requires the court to grant the motion for summary

judgment. See Celotex, 477 U.S. at 322.

The burden is on Glazer to prove that she is entitled

to the benefits she seeks. See Horton v. Reliance

Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir.

1998). Reviews of ERISA decisions are subject to a very

particular and multi-step framework as discussed in

Williams v. BellSouth Telecomm., Inc., 373 F.3d 1132,

1137-38 (11th Cir. 2004). The analysis begins with a

determination of whether the administrator’s decision

was “wrong,” essentially determining if the Court

disagrees with the administrator’s decision. /d. If the

decision was not “wrong,” the judicial inquiry is complete

and the decision must be affirmed. /d. If the decision

‘was wrong, then I must determine if the plan gave the

administrator discretion to review claims. /d. at 1138. If

the plan does not give the administrator discretionary

authority to construe the terms of the plan or determine

the eligibility for benefits and the decision is wrong, the

decision must be reversed. Jd. On the other hand, if the

decision is wrong and the plan granted the administrator

2la

Appendix B

the requisite discretion, the administrator’s decision is

subject to an arbitrary and capricious standard of review.

Id. Under this standard of review, the question becomes

whether based on the facts known to the administrator

at the time, there were reasonable grounds in the record

to support its decision. /d.; Jett v. Blue Cross & Blue

Shield of Ala., Inc., 890 F.2d 1137, 1139 (11th Cir. 1989).

If no reasonable basis existed, the analysis is complete

and the decision must be reversed. Williams, 373 F.3d

at 1138. If a reasonable basis existed for the decision,

the analysis continues to determine if the administrator

operated under a conflict of interest. Jd. Finding no

conflict of interest requires affirming the decision. /d.

Where there is a conflict of interest, the heightened

arbitrary and capricious standard is to be employed to

review the decision. Jd. The heightened arbitrary and

capricious standard of review is “somewhere between

the de novo and ‘mere’ arbitrary and capricious

standards.” Jd. It is under this framework that I analyze

Reliance’s decision to terminate Glazer’s benefits.

Analysis

The parties disagree about the facts surrounding

the IME and argue about the situation’s impact on

Glazer’s claim.' I do not find it necessary to address that

1. Reliance argues Glazer failed to exhaust her

administrative remedies by refusing to allow the IME to be

conducted. Therefore, it argues, Glazer’s claim is barred relying

on Zalka v. Unum Life Ins. Co. of America, 65 FSupp.2d 1369

(S.D. Fla. 1998). Glazer responds that it is her legal right under

(Cont'd)

22a

Appendix B

issue because even on the merits Reliance’s motion

should be granted. Therefore, I begin my analysis with

a discussion of whether Reliance’s decision in July 2004

was wrong. For the reasons that follow, I determine

Reliance’s decision was not wrong.

The record before Reliance supported its decision

that Glazer was capable of performing her job. The

Plan’s definition of total disability was that “an Insured

cannot perform the substantial and material duties of

his/her regular occupation.” Glazer argues that she is

disabled under this standard unless she can perform

her own job, “as she was performing it prior to her

disability.” Pl. Opposition at 14. Glazer’s own description

of her job entailed prolonged repetitive movement, fine

manipulation, grasping with both hands, prolonged

coordinated eyes, hands, arms, and neck movement,

prolonged sitting, twisting, reaching, and carrying. The

general definition as outlined by the Department of

(Cont'd)

Florida law to have her lawyer present for the IME citing US.

Sec. Inc. Co. v. Cimino, 754 So.2d 697 (Fla. 2000). Glazer also

points out that when Reliance denied her claim, it informed her

that she had exhausted her administrative remedies. Reliance

disagrees about whether Glazer had an absolute right to be

accompanied by her lawyer and a court reporter. It asserts that

there is no absolute right because Cimino provides that the

opposing party can put forth a valid reason, which it had here,

when not allowing a claimant to have her attorney present at

the IME. Either way, while conducting an IME may be a

preferable route in these type of claims, there is no requirement

that the administrator complete one. See Fought v. Unum Life

Ins. Co. of America, 379 F.3d 997, 1015 (10th Cir. 2004).

23a

Appendix B

Labor defined a technical writer’s position as one that

is sedentary, requiring occasional lifting, carrying,

pushing, and pulling of ten pounds, but was mostly

sitting and may involve standing or walking for brief

periods of time. Under the specific physical demands,

the general definition provides for occasional reaching

and frequent handling and fingering. The language of

the Plan uses the term “regular occupation,” which is

not defined in the Plan. In such situations it is not

uncommon for the administrator to turn to the

Dictionary of Occupational Titles published by the

Department of Labor. See Gallagher v. Reliance

Standard Life Ins. Co., 305 F.3d 264, 271 (4th Cir. 2002);

Richards v. Hartford Life and Accident Ins. Co., 356

F.'Supp.2d 1278, 1287 (S.D. Fla. 2004). Similar to the

employee in Gallagher, Glazer fails to point out specific

duties that are substantial and material parts of her job

which are not included in the DOT definition. See

Gallagher, 305 F.3d at 272. It does not appear that the

two definitions are that far apart. Therefore, Reliance’s

use of the general definition in evaluating Glazer’s claim

was not inappropriate.

The analysis now moves on to the evidence in the

record regarding Glazer’s physical limitations and

Reliance’s evaluation as to how such physical limitations

impacted her ability to perform the substantial and

material duties of her occupation. After working with

Glazer for a few months, Hoffeld determined that she

was not a surgical candidate. Hoffeld’s report in October

2003 stated that “[rJight now there is again no real

change in her situation and at least from an orthopedic

24a

Appendix B

sense she is at maximum medical improvement. Whether

she will do so with Dr. Novick remains to be seen.” In

December 2003, Hoffeld completed a PCQ form

indicating that the only activities Glazer could frequently

do were standing and walking. She could not sit more

than occasionally. Hoffeld did not check an exertion level

on the PCQ. As to her upper extremities, Hoffeld

indicated that Glazer could do no pushing/pulling, and

all other tasks she could only do occasionally, such as

simple grasping, reaching above mid chest, waist/desk

level, fine manipulation, and feeling/tactile sensation.

Novick’s first impression was cervical spinal stenosis and

chronic cervical strain. He planned to treat her with

medication, indicated she may need injections, and

possibly surgery. Glazer continued seeking treatment

with Novick. His treatment continued, trying various

medications until determining that she was a candidate

for trigger injections. It was after receiving these trigger

injections that Glazer reported to Novick feeling better.

This coincides with the timing of when Novick completed

the PCQ Reliance, at least in part, relied on. The only

item Novick’s PCQ indicated Glazer was completely

restricted from was climbing ladders. On this form, the

exertion level question was answered. The form

specifically asked what exertion level the patient could

work at. Novick responded sedentary lift, which was

defined as exerting up to ten pounds of force

occasionally, and/or a negligible amount of force

frequently. There were no complete restrictions

regarding Glazer’s upper extremities. The Novick PCQ

indicated Giazer could frequently perform simple

grasping and fine manipulation and continuously feel

25a

Appendix B

and have tactile sensation. Reaching above mid chest

and waist/desk level continued to be restricted to

occasionally, as was pulling/pushing, unlike in Hoffeld’s

PCQ where he said Glazer could not push or pull at all.

Novick’s notes from his May 2004 visit with Glazer only

included one limitation. It was that Glazer not hold her

head in one position for a prolonged period of time,

taking frequent breaks. At that visit, Novick reported

that Glazer was “doing better with the pain, although,

she [wa]s frustrated that it [wa]s not completely

resolved.” Over two months later, Novick saw Glazer

again and noted that she remained stable and functional

on her current medication regime. Novick’s notes

indicate Glazer “[wa]s using the treadmill approximately

20 minutes three times per week.” Glazer’s medical

records from Novick’s office and Novick’s PCQ indicate

an improvement in her condition compared to when she

was seeing Hoffeld and first stopped working. Given

these physical limitations and capacities, it is difficult to

determine what substantial and material duty Glazer

could not do at her job as a senior technical writer.

Glazer’s own definition of her job includes prolonged

neck movement. Novick did specifically tell her not to

keep her neck in one place, but stated that she could

take frequent breaks. Glazer does not articulate how

taking frequent breaks from holding her neck in one

place prohibits her from doing a substantial and material

duty of her job.

Glazer also argues that Reliance’s decision is wrong

where it is based on one document despite voluminous

documentation contradicting that document. This

26a

Appendix B

argument is not persuasive. Reliance’s decision is

supported, not only by the PCQ completed by Novick,

but also by his comments of her May and July 2004 visits.

Glazer’s own treating doctor indicated that she could

sit for eight hours a day, do sedentary lifting, and

frequently grasp and perform fine manipulation. Glazer

was able to drive, perform household duties, and use a

treadmill for twenty minutes a day three times a week.

The question is not whether there is more evidence

supporting Glazer’s disability than her lack of disability.

The question is whether the decision made by Reliance

was wrong. Given Glazer’s regular occupation and the

medical records presented to Reliance at the time it

made its decision, the decision was not wrong.

Glazer brings up two other arguments to cast doubt

on Reliance’s decision. The first is that Novick never

got information about her job. Glazer does not provide

any support for the proposition that Novick must receive

such information. The PCQ specifically states “[t]he

patient can work at the following exertion level(s).”

Novick responded by checking the sedentary lift

definition. This answer implies that Novick was of the

opinion that Glazer could work. Reliance then presented

such information to an independent doctor for an

evaluation. Hauptman also agreed with Novick’s

limitations and capacities. This nonexamining doctor’s

opinion is also considered medical evidence in such cases.

See Gannon v. Metropolitan Life Ins. Co., 360 F.3d 211,

214 (1st 2004). Novick indicated, and Hauptman agreed,

that Glazer had the ability to perform sedentary work.

Reliance was under no obligation to provide Novick with

27a

Appendix B

specific duties of Glazer’s job. The other argument

Glazer raises is her social security determination. Glazer

has been determined totally disabled for social security

purposes.” The social security decision was made

after Reliance made its final decision. Therefore, the

Court need not consider it in evaluating Reliance’s

determination. See Richards, 356 F.Supp.2d at 1288.

Furthermore, as Reliance points out, while it may

consider a social security determination, such

determination is not dispositive. See Whatley v. CNA

Ins. Cos., 189 F-3d 1310, 1314 n.8 (11th Cir. 1999). Neither

of these arguments cast doubt on Reliance’s decision.

I do not disagree with Reliance’s decision.

However, even if Reliance’s decision was wrong, it

was not arbitrary and capricious, even under the

heightened standard.’ A decision is not to be overturned

2. Glazer’s social security disability application was

originally denied. She appealed the decision and in January

2006 a hearing was held before an Administrative Law Judge.

The Social Security Administration changed its determination

issuing a decision in January 2006. This is some time after

Reliance made the decision being reviewed by this Court.

3. Glazer argues that the heightened arbitrary and

capricious standard is applicable where Reliance insures the

Plan and made the decision. Reliance argues that its decision

should be affirmed regardless of what standard of review is

applicable. The plan clearly gives Reliance the requisite

discretion. However, Reliance is the insurer of the Plan.

Therefore, as discussed in Brown v. Blue Cross and Blue Shield

of Alabama, Inc., 898 F.2d 1556, 1563 (11th Cir. 1990) the

modified arbitrary and capricious standard is applicable.

28a

Appendix B

merely because the Court disagrees with the decision.

See Turner v. Delta Family-Care Disability & Surv.

Plan, 291 F:3d 1270, 1274 (11th Cir. 2002)(discussing that

“i]t is irrelevant that the court or anyone else might

reach a different conclusion.” under the arbitrary and

capricious standard of review). The arbitrary and

capricious standard of review requires that the

administrator’s decision not be unreasonable or

inconsistent with the record before the administrator.

Paramore v. Delta Air Lines, Inc., 129 F.3d 1446, 1452

(llth Cir. 1997). The heightened arbitrary and

capricious standard also requires deference to the

administrator’s decision, but the review is to be

contextually tailored to the facts of the case. Levinson

v. Reliance Standard Life Ins. Co., 245 F.3d 1321, 1326

(11th Cir. 2001). This in between standard of review is

somewhere between de novo and arbitrary and

capricious. Williams, 373 F.3d at 1138. Having

determined that I do not find the decision wrong, with

the added amount of deference required, even if it is

not the same amount required by the arbitrary and

capricious standard, the decision would also be affirmed.

There exists a reasonable basis in the record before

the administrator that Glazer was able to perform a

sedentary job. There is no support in the record that

Glazer’s job was not a sedentary one. Reliance relied

upon the opinion of one of Glazer’s own treating doctors

and an independent review of her medical records by

another doctor. Glazer presents no reason to suspect

that Novick’s opinion is somehow biased. In fact, the

record indicates that Glazer’s own lawyer recommended

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29a

Appendix B

she see Novick. Glazer points to the determination by

Lechner that she it totally disabled. Lechner seems to

disagree with Novick. Lechner made such determination

on July 13, 2004, one day after Reliance wrote Glazer’s

letter terminating her benefits. When Lechner made

that determination, he had not seen Glazer in over a

year. Lechner’s determination is at odds with Novick’s.

This Court’s role is not to resolve conflicts between

doctors in these cases. The Court must only decide under

these particular circumstances whether Reliance’s

decision was reasonable looking particularly at Glazer’s

medical records and the requirements of her job.

Glazer’s arguments do not persuade me that Reliance’s

decision is incorrect under the heightened arbitrary and

capricious standard.

It is

ORDERED AND ADJUDGED that the Defendant’s

Motion for Summary Judgment (DE 27) is GRANTED.

DONE AND ORDERED in Chambers at West Palm

Beach, Florida, this 25 day of September, 2006.

s/ Donald M. Middlebrooks

DONALD M. MIDDLEBROOKS

UNITED STATES DISTRICT JUDGE

cc: All Counsel of Record

a :

30a

APPENDIX C — ORDER OF THE UNITED

STATES COURT OF APPEALS DENYING

PETITION FOR REHEARING

FILED JUNE 13, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 06-15855-BB

PRISCILLA GLAZER,

Plaintiff-Appellant,

versus

RELIANCE STANDARD LIFE INSURANCE

COMPANY, a Pennsylvania Corporation,

Defendant-Appellee.

On Appeal from the United States District Court for

the Southern District of Florida

ON PETITION(S) FOR REHEARING AND

PETITION(S) FOR REHEARING EN BANC

Before: BIRCH, PRYOR and KRAVITCH, Circuit

Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no

Judge in regular active service on the Court having

3la

Appendix C

requested that the Court be polled on rehearing en banc

(Rule 35, Federal Rules of Appellate Procedure), the

Petition(s) for Rehearing En Banc are DENIED. |

ENTERED FOR THE COURT:

s/ [illegible]

UNITED STATES CIRCUIT JUDGE

| 32a

| APPENDIX D — REGULATION INVOLVED

29 C.ER. § 2560.503-1

§ 2560.503-1 Claims procedure.

(a) Scope and purpose. In accordance with the

authority of [ERISA], 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) ....

4 * *

(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—

* * *

33a

Appendix D

(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.

(2) Grovp 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—

34a

Appendix D

(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;

(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;

35a

Appendix D

(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.

* * *

(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.

* + *

(5) Furnishing documents. In the case of an

adverse benefit determination on review, the

plan administrator shall provide such access

36a

Appendix D

to, and copies of, documents, records, and

other information described in paragraphs

(j)(3), (j)(4), and (j)(5) of this section as is

appropriate.

(j) (3) Astatement that the claimant is entitled

to receive, 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;

(4) A statement describing any voluntary

appeal procedures offered by the plan and the

claimant’s right to obtain the information

about such procedures described in

paragraph (c)(3)(iv) of this section, and a

statement of the claimant’s right to bring an

action under section 502(a) of the Act; and

(5) In the case of a group health plan or a plan

providing disability benefits—

(i) 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

37a

Appendix D

similar criterion; or a statement that such rule,

guideline, protocol, or other similar criterion

was relied upon in making the adverse

determination and that a copy of the rule,

guideline, protocol, or other similar criterion

will be provided free of charge to the claimant

upon request;

(ii) 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 plan to the claimant’s medical

circumstances, or a statement that such

explanation will be provided free of charge

upon request; and

(iii) The following statement: “You and your

plan may have other voluntary alternative

dispute resolution options, such as mediation.

One way to find out what may be available is

to contact your local U.S. Department of

Labor Office and your State insurance

regulatory agency”.

*~ ** *

(m) Definitions. The following terms shall

have the meaning ascribed to such terms in

this paragraph (m) whenever such term is

used in this section:

* x *

38a

Appendix D

(8) A document, record, or other information

shall be considered “relevant” to a claimant’s

claim if such document, record, or other

information.

(i) Was relied upon in making the benefit

determination;

(ii) Was submitted, considered, or generated

in the course of making the benefit

determination, without regard to whether

such document, record, or other information

was relied upon in making the benefit

determination;

(iii) Demonstrates compliance with the

administrative processes and safeguards

required pursuant to paragraph (b)(5) of this

section in making the benefit determination;

(iv) In the case of a group health plan or a

plan providing disability benefits, constitutes

a statement of policy or guidance with respect

to the plan concerning the denied treatment

option or benefit for the claimant’s diagnosis,

without regard to whether such advice or

statement was relied upon in making the

benefit determination.

* + * *

)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.