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United States District Court, D. Arizona.


No. CV-18-02191-PHX-SMB

Decided: March 31, 2020

Scott Edward Davis, Scott E. Davis PC, Scott M. Harris, Scott M. Harris PC, Scottsdale, AZ, for Plaintiff. Stephen M. Bressler, Nicole Marie True, Lewis Roca Rothgerber Christie LLP, Phoenix, AZ, for Defendant.


Pending before the Court is Plaintiff's Motion to Supplement the Administrative Record, (Doc. 53).1 Defendant responded, (Doc. 56), and Plaintiff replied, (Doc. 60). Although Plaintiff requests oral argument, the Court deems it unnecessary and elects to resolve the motion on the arguments before the Court. See L.R. Civ 7.2(f). The Court thus considers the motions and attached exhibits and enters the following Order:


This case arises out of Defendant Unum Life Insurance Company's (“Unum”) decision to deny Plaintiff, an employee of Drury Hotels Company, LLC,2 long-term disability (“LTD”) benefits and a Life Insurance Premium Waiver (“LIPW”). Plaintiff challenges Unum's determinations on both claims. (See Doc. 1.)

Complaining of migraines as well as various coronary and circulatory issues, Plaintiff stopped working at Drury on August 25, 2015. He then submitted claims for short and long-term disability benefits under the plans administered by Unum. Unum approved Plaintiff's short-term disability (“STD”) benefits for three months—from August 26, 2015 to November 24, 2015—and thereafter paid long-term disability (“LTD”) benefits until December 4, 2015 when Unum determined Plaintiff's condition did not satisfy his policy's definition of disability. (Doc. 56-1 (LTD claim denial letter dated February 9, 2016).) Plaintiff appealed. Unum denied his LTD appeal on May 31, 2016. (Doc. 56-2.) In that appeal denial, Unum found nothing to change the initial claim denial and reaffirmed that, as of December 24, 2015, Plaintiff no longer met the LTD policy's definition of disability.3 (Id.) Plaintiff was unrepresented during the claim process for LTD benefits.

After his LTD claim was denied, Plaintiff, now represented by counsel, filed a claim for LIPW benefits. Unum denied the latter claim on October 27, 2016. (Doc. 60-1 at 5-9.) Plaintiff appealed. The character of that appeal is disputed. Plaintiff contends this appeal was his first and, accordingly, asserts it is governed by ERISA. Unum characterizes its review of the LIPW benefits appeal as purely voluntary. As a consequence, Unum believes the review was unencumbered by ERISA restrictions. It is clear, however, that Plaintiff's Counsel intervened, requested that Unum furnish complete records from its review and reconsider both claims. Unum largely complied. Unum's February 6, 2017 response stated: “Scott - I confirmed with Genna Peeler-Bagley, the Lead Appeals Specialist on the LTD claim, that you have until 4/25/17 to submit additional information. Once she receives the information from you, she will open up the LTD claim as a re-appeal, and the LWOP claim will be opened as an Appeal.” (Doc. 56-2 at 14.) Unum thereafter affirmed its initial claim determinations as to both appeals—denying the LIPW appeal on September 20, 2017, (Doc. 53-4 at 9-13), and the LTD appeal five days later, (id. at 2-8).

During this process, Unum engaged two medical professionals to conduct paper reviews. Dr. Zimmerman, a neuropsychologist, was asked to solely review Plaintiff's previous neuropsychological evaluations. (Doc. 53-3 at 2.) Unum consulted with Dr. Brown, a psychiatrist, to determine overall limitations evidenced by comprehensive review of Plaintiff's medical record. (Id. at 5.) Plaintiff requested Unum to provide reports of consulting experts by letter on 3 dates: June 22, 2017, (Doc. 53-5 at 14-16); July 12, 2017 (id. at 9-12); and July 26, 2017, (id. at 3-8). Those letters are dated after the final denial but during the mandatory appeal of the LIPW decision and during a voluntary appeal of the LTD claim.

Plaintiff seeks to supplement the administrative record with addendum responses from Plaintiff's evaluating neuropsychologist, Marc Walter, Ph.D. dated April 20, 2019 and July 29, 2019. (Doc. 53-2 at 1-10.)


The Employment Retirement Income Security Act (“ERISA”) “governs the administration of employer-provided benefit pension plans.” Metro. Life. Ins. v. Parker, 436 F.3d 1109, 1111 (9th Cir. 2006). ERISA requires plan administrators, as fiduciaries, to administer their plans “in accordance with the documents and instruments governing the plan insofar as the documents and instruments are consistent with the provisions of [ERISA].” 29 U.S.C. § 1104(a)(1)(D).

Courts review the denial of ERISA benefits 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.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). When a plan “unambiguously provide[s] discretion to the administrator,” the standard of review shifts from the default, de novo, to abuse of discretion. Abatie v. Alta Health and Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006) (en banc) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)); see also Met. Life Ins. Co. v. Glenn, 554 U.S. 105, 110-11, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). “Under the abuse of discretion standard of review, ‘the plan administrator's interpretation of the plan will not be disturbed if reasonable.’ ” Day v. AT&T Disability Income Plan, 698 F.3d 1091, 1096 (9th Cir. 2012) (quoting Conkright v. Frommert, 559 U.S. 506, 512, 130 S.Ct. 1640, 176 L.Ed.2d 469 (2010)).

Generally, when applying an abuse of discretion standard to an ERISA plan, the district court's review is limited to the administrative record. Burke v. Pitney Bowes Inc. Long-Term Disability Plan, 544 F.3d 1016, 1027–28 (2008) (citing Abatie, 458 F.3d at 970). However, “when an administrator has engaged in a procedural irregularity that has affected the administrative review, the district court should ‘reconsider [the denial of benefits] after [the plan participant] has been given the opportunity to submit additional evidence.’ ” Abatie, 458 F.3d at 973 (citing Vanderklok v. Provident Life & Accident Ins. Co., 956 F.2d 610, 617 (6th Cir. 1992)).


a. Motion to Supplement Records

Plaintiff argues Unum's failure to disclose the reviewing physicians’ reports when requested during the appeals process is a procedural error that entitles him to supplement the administrative record. In support of his request, Plaintiff relies primarily on Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 972-73 (9th Cir. 2006) and Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 680 (9th Cir. 2011). In Abatie, the Ninth Circuit examined circumstances in which Court may consider outside evidence. Supplementation is particularly warranted when an administrator's procedural errors effectively deny a claimant a full and fair hearing. See Abatie, 458 F.3d at 973. By supplementing the record, a court aims to reconstitute the record as it would have been without the administrator's error. Id. In separate proceedings, the Ninth Circuit has found error when an ERISA plan fails to disclose a reviewing physicians report to the claimant when requested. See Salomaa, 642 F.3d at 671; see also Leu v. Cox Long-Term Disability Plan, No. 2:08-CV-00889-PHX-JAT, 2009 WL 2219288, at *5-6 (D. Ariz. Jul. 24, 2009) (determining that evidence outside the administrative record may be considered if procedural irregularities prevent the full development of the administrative record). In this case, Unum relied on the reports of Dr. Zimmerman and Dr. Brown to deny two appeals at different stages: (1) a voluntary appeal of from denial of Plaintiff's LTD benefits; and, (2) a mandatory appeal from denial of Plaintiff's LIPW benefits. (See Doc. 53-4 at 2-8 (LTD appeal decision); id. at 9-13 (LIPW appeal decision).) While Unum did not provide the doctors’ reports to Plaintiff or his counsel in either instance. This deprived Plaintiff the opportunity to respond and thus denied him a full and fair review procedure.

Defendant argues that because ERISA does not apply to voluntary appeals like these, no response was required. This is half-true. The record supports that Unum rendered its final determination on Plaintiff's LTD claim prior to Drs. Zimmerman and Brown's review. Thus, the voluntary nature of Unum's review of Plaintiff's LTD claim did not obligate Unum to supply records that would otherwise be required during a first-level, ERISA-governed appeal. That argument is supported by several cases and the Court agrees. See Prezioso v. Prudential Ins. Co. of Am., 748 F.3d 797, 805 (8th Cir. 2014) (determining ERISA did not establish that a voluntary appeal procedure is part of the plan's statutory obligation to provide “full and fair review” of the initial decision); DaCosta v. Prudential Ins. Co. of Am., No. 10-CV-720 JS ARL, 2010 WL 4722393, at *3 (E.D.N.Y. Nov. 12, 2010) (holding that ERISA does not require a “full and fair review” on voluntary appeals that an insurer elects to conduct, otherwise required by first-level appeals). But, here, the LTD claim was not the only claim under review. The appeal of Plaintiff's LIPW claim was a first-level review governed by ERISA.4 Unum's own communications confirm this. (See Doc. 60-1 at 8; Doc 56-2 at 14.) Although Unum's argument persuades in circumstances involving only a voluntary review like the review of Plaintiff's LTD claim, it falls short when considering first-level reviews governed by ERISA. Plaintiff's LIPW claim falls in the latter category. of the LTD claim at the request of Plaintiff, then Unum's argument would be persuasive. Unum was required to provide Plaintiff the reviewing physicians’ reports prior to rendering their final decision on his LIPW claim. Accordingly, the Court will grant Plaintiff's request to supplement the record.

b. Records “Replacement”

Plaintiff also asks the Court to “replace” illegible or poor copies in the Administrative Record with legible, clean copies of the same documents. (Mot. at 16.) Defendant objects. Leery of the addition—accidental or purposeful—of documents outside the administrative record and noting the identified records are legible as is, Defendants see no need for such unnecesary efforts. After review of exemplar records provided by Plaintiff that supposedly need replacement, the Court is unmoved. (See Doc. Exh. F.) Although a tad faded, the documents are legible. Given the parties’ do not yet agree that the records marked for replacement are, in fact, exact copies of their original versions, the Court will deny this request. In the instance the Court has an issue reading a document, it will contact the parties to explore an expedient and satisfactory resolution.


IT IS ORDERED GRANTING Plaintiff's motion to supplement the record with Dr. Walter's addendum reports but DENYING Plaintiff's motion to replace illegible records;

IT IS FURTHER ORDERED GRANTING Defendant's request to supplement the record with a response to Dr. Walter's addendum reports.

IT IS FURTHER ORDERED setting the following deadlines:

1. Unum's expert report in response to Dr. Walter's addendum reports is due no later than April 24, 2020;

2. All dispositive motions shall be filed no later than June 12, 2020;

3. Responses shall be filed no later than July 10, 2020; and

4. Replies shall be filed no later than July 24, 2020.


1.   The Motion is fully titled: “Motion to Supplement the Administrative Record with Dr. Walter's Addendum Reports and Motion to Replace Illegible Records in the Administrative Record.” (Doc. 53.)

2.   Drury provided both long-term disability insurance and life insurance to employees. The LIPW waived any premiums due on the life insurance policy when an employee's condition meets the plan's definition of disability.

3.   The LIPW policy defines disability as the inability “to perform the duties of any gainful occupation for which you are or become reasonably fitted by training, education or experience.” (Doc. 53-4 at 11.) A “gainful occupation” is one that “within 12 months of [a beneficiary's] return to work is or can be expected to provide [the beneficiary] with an income that is at least 60% of [pre-disability] annual earnings.” (Id. at 12.)

4.   There appears to be some dispute as to whether Unum made an initial claim determination or failed to communicate that decision (along with Plaintiff's rights under ERISA to appeal) to Plaintiff at all. (See Doc. 60-1 at 2.)

Susan M. Brnovich, United States District Judge

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Docket No: No. CV-18-02191-PHX-SMB

Decided: March 31, 2020

Court: United States District Court, D. Arizona.

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