United States Court of Appeals
For the First Circuit
No. 03-2494
BERNARD J. GLISTA,
Plaintiff, Appellant,
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, U.S. District Judge]
Before
Lynch, Circuit Judge,
Rosenn,* Senior Circuit Judge,
and Lipez, Circuit Judge.
S. Stephen Rosenfeld, with whom Mala M. Rafik and Rosenfeld &
Rafik, P.C. were on brief, for appellant.
Geraldine G. Sanchez, with whom Byrne J. Decker and Pierce
Atwood were on brief, for appellee.
Mary Ellen Signorille and Melvin Radowitz on brief for
American Association of Retired Persons (AARP), amicus curiae.
August 11, 2004
*
Of the United States Court of Appeals for the Third
Circuit, sitting by designation.
LYNCH, Circuit Judge. Bernard Glista, who is in his mid-
fifties, was diagnosed in January 2000 with Primary Lateral
Sclerosis (PLS), a rare neurological disorder that arises in adults
in mid to late life and causes progressive weakness in the muscles
of the face, arms, and legs and eventual loss of basic motor
functions such as speech and swallowing. Although long-term
survival is possible, those afflicted can die within as few as
three years from onset.
Glista, who had just changed jobs in the summer of 1999,
filed a claim for long-term disability benefits with his new
employer under its disability plan (the Plan), administered by Unum
Life Insurance Company of America under the Employee Retirement
Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. The Plan
grants Unum, as plan administrator, discretion to determine
eligibility for benefits and to interpret Plan provisions. Unum
found that Glista was disabled but denied his claim on the ground
that his PLS was a pre-existing condition and, hence, was within an
exclusion from coverage.
This case requires that we address for the first time two
questions of general import: (a) the admissibility in ERISA cases
of internal guidelines and training materials that interpret
certain plan terms and are promulgated by the plan administrator;
and (b) whether a plan administrator may defend a denial of
benefits on the basis of a different reason than that articulated
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to the claimant during the internal review process. We decline to
adopt hard-and-fast rules as to either question. We conclude that
such internal documents are admissible under certain conditions,
which are met here. We also conclude that where a plan
administrator articulates in litigation an additional reason for
denial of benefits that differs from the reasons articulated to the
plaintiff, reviewing courts have a range of options available.
Here, we decline to consider the merits of the reason not
articulated to Glista. Considering only the reason articulated to
Glista, we conclude that the denial of benefits was arbitrary and
capricious.
I.
On June 30, 1999, Glista left his position as a senior
sales director at PictureTel. His long-term disability coverage
under PictureTel's Unum plan stopped that day. Fifteen days later,
on July 15, 1999, Glista began work at Ezenia, Inc., as the vice
president of worldwide sales, and started receiving long-term
disability coverage under a different Unum plan, one for Ezenia
employees (the Plan). His coverage under the Plan became effective
on July 15, 1999.
The Plan provides that "[w]hen making a benefit
determination under the policy, UNUM has discretionary authority to
determine [the claimant's] eligibility for benefits and to
interpret the terms and provisions of the policy." The terms of
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the Plan provide coverage for claimants who are disabled for more
than 180 days. One is "disabled" if one is "limited from
performing the material and substantial duties of [one's] regular
occupation due to [one's] sickness or injury" and has "a 20% or
more loss in [one's] indexed monthly earnings due to the same
sickness or injury" (emphasis omitted).
The Plan, however, "does not cover any disabilities
caused by, contributed to by, or resulting from . . . [a] pre-
existing condition" (the Pre-Ex Clause). The Plan states that:
You have a pre-existing condition if:
- you received medical treatment, consultation, care or
services including diagnostic measures, or took
prescribed drugs or medicines in the 3 months just prior
to your effective date of coverage [the Treatment
Clause]; or you had symptoms for which an ordinarily
prudent person would have consulted a health care
provider in the 3 months just prior to your effective
date of coverage [the Symptoms Clause]; and
- the disability begins in the first 12 months after your
effective date of coverage.
The Plan's glossary defines "pre-existing condition" (the Glossary
Definition) as
a condition for which you received medical treatment,
consultation, care or services including diagnostic
measures, or took prescribed drugs or medicines for your
condition during the given period of time as stated in
the plan; or you had symptoms for which an ordinarily
prudent person would have consulted a health care
provider during the given period of time as stated in the
plan.
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Glista's coverage under the Plan began on July 15, 1999. Hence,
the three-month period to which the Plan refers (the Pre-Ex Period)
was April 15, 1999 through July 15, 1999.
On April 23, 1999, during the Pre-Ex Period, Glista saw
Dr. Anthony A. Pikus for a "slowly progressive" sense of "left
lower extremity weakness" over the past several months, pain in his
left heel and proximal lateral arm, and discomfort in his mid-back
area. Dr. Pikus prescribed Naprosyn for the pain and referred
Glista to a neurologist.
On May 26, 1999, Glista saw Dr. David A. Kolb, a
neurologist, who performed a neurological exam. The exam revealed
some weakness in Glista's foot and shoulder. Dr. Kolb also noted
a finding of hyperreflexia, observing that Glista's "reflexes
[were] quite hyperactive and perhaps 7-8 beats of clonus [could]
intermittently be elicited at the left ankle." In addition, Dr.
Kolb observed that Glista's left heel pain "does not have a
radicular quality." Dr. Kolb requested an electromyography test
(EMG) of the left leg and left shoulder girdle to check for "any
component of lower motor neuron involvement." Primary lateral
sclerosis (PLS), the disease with which Glista was ultimately
diagnosed in January 2000, involves a purely upper motor neuron
deficit. (A. 561)
The EMG, which was done on June 8, 1999, revealed "[m]ild
chronic reinnervation change, most likely in an L5 distribution."
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In response, Dr. Kolb requested a lumbar and cervical MRI and
prescribed Anaprox. The MRIs, conducted on June 15, 1999, showed
conjoining of the left L5 and S1 nerve roots, a possible minimal
mass effect on the left L5 nerve root, degenerative disc disease at
L5-S1, and mild early osteoarthritis.
Seven days after the Pre-Ex Period ended, on July 22,
1999, Glista went for a follow-up visit with Dr. Kolb. Glista told
Dr. Kolb that he was having difficulty walking. Dr. Kolb did
another neurological exam, finding that Glista's deep tendon
reflexes were "normoactive to slightly hyperactive" in Glista's
upper extremities and "remain[ed] hyperactive in the lower
extremities." Dr. Kolb concluded, "With [Glista's] hyperreflexia
which I think is a fairly solid clinical finding and some very soft
findings of functional weakness . . . , I think ongoing workup is
mandated." He stated,
I think Bernard probably has a left L5 or S1
radiculopathy that is responsible for his left leg
numbness and left foot dorsiflexor weakness . . . . This
is certainly supported by his MRI and EMG testing.
The larger issue is his more global bilateral leg
difficulties and hyperactive reflexes. My differential
at this point includes structural/mass lesion of the
thoracic cord, demyelinating disease, and motor neuron
disease.
PLS is a type of motor neuron disease.
On August 19, 1999, an MRI of Glista's brain revealed
"multiple punctate cerebral white matter lesions." When Glista
returned to Dr. Kolb on September 17, 1999, Dr. Kolb reported that
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he "need[ed] to look into the possibility of demyelinating disease
but [would] also keep the possibility of neuron disease/primary
lateral sclerosis in mind." This was the first time that any
doctor had specifically mentioned the possibility that Glista had
PLS.
Dr. Kolb reiterated PLS as a possible diagnosis at
Glista's November 8 evaluation, although he thought that Glista's
sensory symptoms made such a diagnosis "improbable." Dr. Kolb sent
Glista to Dr. Allan H. Ropper, Chief Professor of Neurology at St.
Elizabeth's Medical Center, for a second opinion. Dr. Ropper, who
examined Glista on December 13, 1999, stated that "in closely
reviewing the [brain] MRI, I think there are subtle lesions in the
corticospinal tracts that suggest primary lateral sclerosis"
(emphasis omitted). At Glista's January 19, 2000 evaluation, Dr.
Kolb reported that his "working diagnosis" was "primary lateral
sclerosis."
On February 6, 2000, Glista submitted a claim for long-
term disability benefits under the Plan. Glista stated on the
application form that the symptoms of his disabling condition,
including "leg weakness, heel & shoulder pain, [and] lower back
discomfort," began around January of 1999. On the attending-
physician form submitted in support of Glista's claim, dated
February 15, 2000, Dr. Kolb stated that he had diagnosed Glista
with PLS. In response to the item marked "When did symptoms first
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appear?" Dr. Kolb wrote "9/98." In a second supporting form, dated
February 16, 2000, Dr. Kolb reiterated the diagnosis of PLS. In
response to the item marked "Date of first visit for this illness
or injury," Dr. Kolb wrote "5/26/1999."
Unum began an investigation into whether Glista was
excluded from coverage under the Pre-Ex Clause. Glista's claim
file was referred to Dr. Robert MacBride, an Unum Medical Director,
who was asked whether Glista had a pre-existing condition. Dr.
MacBride found that during the Pre-Ex Period, Glista had received
"treatment" for a "condition" -- namely, "neurological [symptoms]
forming [the] basis of Primary Lateral Sclerosis."
In a letter dated March 30, 2000, Heather Smith, a
disability benefit specialist at Unum, informed Glista that his
application for long-term disability benefits had been denied.
Smith's letter stated, "Information gathered during our
investigation supports that you were treated by Dr. Kolb on May 26,
1999 and June 8, 1999 for a condition which caused, contributed to,
or resulted in the condition for which you are now claiming
disability. Since this was within the [Pre-Ex Period], we must
deny any liability on your claim."
Glista timely appealed on June 30, 2000, arguing that the
treatment he received during the Pre-Ex Period was for L5 or S1
radiculopathy, not for PLS. He attached a letter from Dr. Kolb,
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dated May 9, 2000, seeking to clarify the original attending-
physician statement. Dr. Kolb's letter stated:
Jim [Glista] has primary lateral sclerosis, a
diagnosis that was established as a probable diagnosis
only approximately in January of 2000.
Previous investigation with an EMG in June of 1999
demonstrated abnormalities, however these abnormalities
were not germane to what was subsequently proven to be
his disabling disease, i.e. primary lateral sclerosis.
Furthermore, while medical treatments of a general
nature were used pursuant to Jim's EMG testing, these too
were directed at pain related problems that are also, in
retrospect, not felt to be related to his disabling
diagnosis of primary lateral sclerosis.
In addition, Glista attached a letter from his primary care
physician, Dr. Joseph F. Shalhoub, stating that when Dr. Pikus (who
is an associate of Dr. Shalhoub's) saw Glista in April 1999,
Glista's "symptoms were felt to be musculoskeletal and not related
to his present condition."
On July 10, 2000, Unum had Dr. MacBride re-review
Glista's claim. Dr. MacBride noted that Dr. Kolb had found
hyperreflexia in his assessment of Glista on May 26, 1999, and that
hyperreflexia "is a characteristic of upper motor neuron
disease[s]" such as PLS and "would not be explained by
radiculopathy." Dr. MacBride further noted that Dr. Kolb had not
limited his differential diagnosis to radiculopathy at Glista's May
26, 1999 visit and had ordered tests that were "not limited to a
possible collateral existence of radiculopathy." Dr. MacBride thus
concluded that "[t]he evidence continues to indicate that the
claimant was under treatment/investigation for an array of
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neurological problems, the most critical of which was ultimately
diagnosed as Primary lateral sclerosis."
Unum denied Glista's appeal in a letter dated July 24,
2000. The letter concluded that Glista was not covered because he
had "received medical treatment, consultation, care and services
including diagnostic measures" during the Pre-Ex period. The
letter relied principally on Dr. Kolb's May 26, 1999 finding of
hyperreflexia, noting that "[o]ur medical advisors indicate that
bilateral hyperreflexia would not normally be a finding associated
with radiculopathy." Glista's medical records, the letter stated,
"confirm[ed] that [Glista] had neurological symptoms present and
under investigation during [the] Pre-ex period which . . . indicate
a concern for and ultimate relationship to" PLS.
Glista's claim was forwarded to Unum's Quality Review
Unit for a second review. On September 26, 2000, Karen Van
Deventer, an Unum appeals consultant, reviewed Glista's case file
and forwarded it to neurologist Dr. Richard Sullivan. Van Deventer
asked Dr. Sullivan to determine if "the treatment and diagnostic
measures undertaken on 5/26/99, 6/8/99, 6/15/99 along with the EMG
and MRI's clearly indicate a condition that caused, contributed to,
or resulted in the disabling diagnosis of Primary Lateral
Sclerosis." Dr. Sullivan called Unum to clarify "what determines
if the condition is pre-existing." An Unum representative, after
consulting Van Deventer, gave Dr. Sullivan the text of the Pre-Ex
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Clause, including both the Treatment and Symptoms Clauses, but did
not mention the definition of "pre-existing condition" in the Plan
glossary. Dr. Sullivan responded that under the definition
provided, Glista's condition was pre-existing. In a follow-up
letter dated November 17, 2000, Dr. Sullivan stated, "Though the
patient did not receive a definite diagnosis until December 1999 by
Dr. Rop[p]er, clearly he sought medical attention for the symptoms
which ultimately led to this diagnosis as early as April 1999.
From April until December, his doctors were actively trying to
diagnose his rare condition."
On November 21, 2000, relying on Dr. Sullivan's analysis
and Dr. Kolb's finding of hyperreflexia during the Pre-Ex Period,
Van Deventer informed Glista by letter that Unum was upholding the
denial of his appeal on the ground that he "was treated during the
pre-existing time period for the same symptoms, which ultimately
led to his diagnosis of primary lateral sclerosis."
II.
On February 2, 2001, Glista brought suit against Unum in
federal district court for unlawful termination of his benefits
under ERISA, 29 U.S.C. § 1132(a)(1)(B).1 Following discovery, Unum
1
The complaint also included two other counts: (1) a claim
that Unum had breached its fiduciary obligations under ERISA, 29
U.S.C. § 1132(a)(2), and (2) a claim that Unum had failed to
provide copies of documents upon which it relied in denying
Glista's benefits during the appeals process, 29 U.S.C. § 1332(c).
Glista voluntarily withdrew the count based on breach of fiduciary
duty. The district court ruled against Glista on the count based
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moved for judgment on the administrative record on June 7, 2002,
arguing that its denial of coverage could be overturned only if
arbitrary and capricious and that the denial here did not meet that
standard. Unum emphasized that the Plan contains no requirement
that doctors or patients be aware of the correct diagnosis of the
patient's illness during the Pre-Ex Period. Here, Unum argued,
Glista had received treatment during the Pre-Ex Period for
hyperreflexia, a symptom of PLS that, according to Dr. MacBride,
could not be explained by radiculopathy. Unum contended that
because Glista had received treatment for a condition, i.e., a set
of symptoms including hyperreflexia and weakness in his
extremities, that was caused by PLS, he was excluded from receiving
benefits under Treatment Clause. Eventually, Unum additionally
argued that Glista was also barred from benefits by the Symptoms
Clause because he had symptoms of PLS for which an ordinary person
would have sought treatment, as he ultimately did.
Glista opposed the motion, arguing that Unum's
interpretation of the Plan was arbitrary and capricious. Glista
argued that Unum could not rely on the Symptoms Clause because Unum
had not relied on the Symptoms Clause in the internal review
process and because the Symptoms Clause applied only when the
claimant had not sought treatment. As for the Treatment Clause,
on failure to provide documents, and Glista has not challenged that
ruling in this appeal.
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Glista stressed that the Glossary Definition of "pre-existing
condition" referred to a "condition for which [he] receive[d]
treatment" (emphasis added). Glista contended that he could not
have received treatment "for" PLS if he and his doctors were not
aware that he had PLS. Further, he argued that even if the Pre-Ex
Clause did not require awareness of his diagnosis or disabling
condition, the treatment he received was "for" symptoms caused by
radiculopathy, a condition not related to PLS. Although
hyperreflexia was noted in his exam, Glista contends, Dr. Kolb's
May 9, 2000 letter demonstrated that Dr. Kolb had ordered the EMG
and MRI tests to address radiculopathy.
In addition, Glista moved on July 8, 2002, to include as
part of the administrative record two documents (and related
deposition testimony) that he had obtained, over Unum's objections,
in discovery.
The first document was a set of excerpts from Unum's
computer-based "risk management reference" guide, known as RIMARE,
concerning the interpretation of pre-existing condition provisions.
Van Deventer, who handled the second internal review of Glista's
claim and who has sole discretion to approve or deny appeals of
claims to which she is assigned, stated in her deposition that
RIMARE is a tool used "to help with the analytical process of
reviewing a claim." Although she could not recall when she was
first pointed to RIMARE, she said that, at some point, she "was
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informed to check [RIMARE] when processing appeals." Van Deventer
stated, though, that she personally does not use RIMARE on an
everyday basis in reviewing claims and, as of her deposition on
March 18, 2002, had not referenced it in over a year. She could
not recall whether she had used RIMARE when evaluating Glista's
claim. Van Deventer also said that she received "hands-on
training" on the use of RIMARE from a mentor who advised her "what
systems to use and what systems to review or look at for
information" when reviewing claims. She noted, though, that her
training in RIMARE did not specifically address its use "with
respect to the preexisting [condition] clause" and that she
typically relies on attorneys when the appeal raises a legal issue
concerning the proper interpretation of the policy.
In evaluating whether a Pre-Ex Clause applies, RIMARE
states:
[T]here must be a clear and direct relationship between
the sickness or injury treated during the pre-existing
period and that causing the insured to become disabled.
A "possible" or "hypothetical" relationship is not a
sufficient basis for denial of a claim.
RIMARE notes, though, that whether a condition has "manifested"
itself during the Pre-Ex Period is "governed by the terms of the
policy" and advises claims examiners to "[s]ee the specific terms
of the particular contract, which can vary."2
2
RIMARE also informs Unum's claims examiners of Unum's
views on this court's ruling in Hughes v. Boston Mut. Life Ins.
Co., 26 F.3d 264 (1st Cir. 1994):
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The second document that Glista sought to add to the
administrative record was Unum's training materials on applying
various pre-existing conditions clauses (the Training Materials).
The Training Materials were created on March 9, 1999, and revised
on May 27, 1999, before Glista's claim was filed. Van Deventer
testified in her deposition that she encountered the Training
Materials in a training course on long-term disability claims, but
that this course occurred in August 2001, after she had handled
Glista's claim.
The Training Materials state that in determining if a
condition is pre-existing, claims examiners should apply the
following standard:
If there is no record of treatment in the pre-ex period:
...
If the claim is under a CXC policy which contains
"prudent person" wording in the pre-ex provision,
discuss the claim with a MCR to determine if an
ordinarily prudent person would have consulted a
health care provider in the pre-ex period for
symptoms which the disabling condition was caused
by, contributed to by or resulting from.
In this case, the court determined that an insurer (such as
UNUM), in order to determine pre-x, needs to evaluate whether
the physician and/or the claimant had knowledge during the
pre-x period, that the treatment the insured was receiving was
for the condition which is the cause of the disability.
RIMARE states that Hughes affects "[a]ll ERISA Plans in the 1st
Circuit, with the exception of CXC contracts. This is due to the
fact that the language in our policies, except CXC, is almost
identical to language in the Boston Mutual policy cited in the
case." Here, the Plan is one of Unum's series CXC contracts.
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If yes, the disabling condition is pre-ex.
If no, the disabling condition is not pre-ex.
If there is a record of treatment in the pre-ex period:
Refer all medical records showing treatment in
the pre-ex period to a MCR, asking if the
treatment was for a condition which the disabling
condition was caused by, contributed to by or
resulting from.
If the MCR documents a clear link between
the treatment in the pre-ex period & the
disabling condition, the disabling condition
is pre-ex.
If the MCR does not establish a clear link
between the treatment in the pre-ex period &
the disabling condition, the disabling
condition is not pre-ex.
In addition, the Training Materials instruct claims examiners to
"[r]efer to RIMARE for more in-depth information on how to
determine if a condition is pre-ex."
On September 30, 2003, the district court denied Glista's
motion to include RIMARE, the Training Materials, and related
deposition testimony in the administrative record. The court
accepted Unum's argument that the discretion of a plan
administrator could be fettered only by the language of the Plan
itself, and not by any internal guidelines or interpretations. The
court held that "by creating a training or a reference manual, Unum
did not relinquish its discretion to interpret the terms of its own
insurance policy." Both documents and the associated deposition
testimony were therefore excluded for lack of relevance.
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In the same order, the court also granted Unum's motion
for judgment on the administrative record, finding that Unum's
denial of coverage was not arbitrary and capricious. The court
noted that it would have reached the same result even if it had
included RIMARE in the administrative record. The court found
Unum's interpretation of the Treatment Clause -- that the clause
does not require the claimant or his physicians to be aware that
the treatment was "for" the disabling condition -- to be
reasonable. The court emphasized that the plain language of the
Pre-Ex Clause did not require diagnosis or awareness of the
disabling condition. Although contra proferentum ordinarily
requires reading insurance contracts in favor of the insured, the
court found that rule inapplicable here because the terms of the
Plan expressly gave Unum discretion to interpret the Plan's
provisions and decide Glista's eligibility for benefits.
The court then concluded that substantial evidence
supported Unum's denial of benefits under either the Treatment
Clause or the Symptoms Clause. Glista, the court found, had sought
treatment and diagnostic services during the Pre-Ex period for a
range of neurological symptoms that turned out to be caused by PLS
and that were identified during the Pre-Ex Period as involving some
form of neuron disease. The fact that Glista was also diagnosed as
suffering from radiculopathy, the court concluded, "does not
undermine the reasonableness of Unum's determination."
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Glista timely appealed the order, challenging both
rulings.
III.
We turn first to Glista's argument that the district
court erred in excluding RIMARE and the Training Materials as
irrelevant. Unum contends that the documents are irrelevant as a
matter of law because to admit them would be an impermissible
constraint on the discretion of the plan administrator. Unum also
argues that these documents are inadmissible because they are of
the same category as those on which the court refused to allow
discovery in Liston v. Unum Corp. Officer Severance Plan, 330 F.3d
19 (1st Cir. 2003). Both arguments overreach.
Liston was concerned with a different problem. It held
that the district court had not abused its discretion in refusing
to grant to a claimant who had been denied benefits discovery about
other similarly situated claimants who did receive benefits. Id.
at 25-26. Liston held that "[w]hether discovery was warranted
depends in part on if and in what respect it matters whether others
were better treated . . . and this is not a question that has a
neat mechanical answer." Id. (emphasis in original). Liston was
clear that "how others were treated could -- in some cases -- be
substantively relevant" to the reasonableness of the plan
administrator's decision. Id. But it concluded that such
information was not relevant in Liston because "[t]he plan's
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general standard is too vague and the variables in executive jobs
are too numerous to expect that anyone else will be identically
placed." Id. As a result, "discovery in such a situation would be
[so burdensome as to be] at odds with the concerns about efficient
administration that underline the ERISA statute itself." Id. at
26.
Liston is unlike this case in several respects. Liston
involved an effort to put into the record facts about other persons
that were not before the administrator. Here, by contrast, what is
sought to be admitted are the plan administrator's own documents
interpreting the language of the Plan and providing the standard
for evaluation of the facts presented. The documents here are more
analogous to an administrative agency's guidelines or regulations,
which are routinely considered in evaluating whether the agency's
actions were arbitrary or capricious. The documents here shed
light on the "legal" rule the Plan applies, not the underlying
facts presented to the Administrator.
Liston's concerns about burdening the plan administrator
and allowing quick and efficient disposition of claims are also of
considerably less weight here. RIMARE and the Training Materials
are discrete documents easily made available.
Moreover, under new federal regulations, claimants are
entitled to obtain copies of precisely such documents. ERISA
requires that "[i]n accordance with regulations of the Secretary
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[of Labor]," every employee benefit plan must provide participants
whose benefits claims were denied with a "full and fair review" of
the denial. 29 U.S.C. § 1133 (2003). In 2000, the Department of
Labor promulgated regulations interpreting "full and fair review"
to require that claimants be given access to all "relevant"
documents. 29 C.F.R. § 2560.503-1(h)(2)(iii). Where the plan in
question provides disability benefits, the Department of Labor
defines "relevant" documents to include "statement[s] 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." § 2560.503-1(m)(8)(iv). The Department
indicated that these new regulations were intended to make clear
that "the claimant should receive any information demonstrating
that, in making the adverse benefit determination, the plan
complied with its own processes for ensuring appropriate
decisionmaking and consistency." 65 Fed. Reg. 70,246, 70,252 (Nov.
21, 2000).
Although these regulations apply only to claims made on
or after January 1, 2002, 65 Fed. Reg. at 70,246, and thus do not
apply to Glista's claim, the Department of Labor has made clear
that the new regulations were intended to clarify the preexisting
ones and that, in its view, the preexisting regulations already
contemplated disclosure of such information. See 65 Fed. Reg. at
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70,252. In addition, the new regulations reflect the Department of
Labor's expert judgment that the benefits of making such
information available to claimants outweigh the potential burdens
on plan administrators.
The weight and admissibility of internal documents,
whether those documents are offered in support of the
interpretation of the plan administrator or that of the claimant,
will vary with the facts of each case. See Doe v. Travelers Ins.
Co., 167 F.3d 53, 57 (1st Cir. 1999). Such documents are most
likely to be relevant where they have been authenticated, have been
generated or adopted by the plan administrator, concern the policy
in question, are timely to the issue in the case, are consistently
used, and were known or should have been known by those who made
the decision to deny the claim. Where a plan administrator has
chosen consistently to interpret plan terms in a given way, that
interpretation is relevant in assessing the reasonableness of the
administrator's decision. The Department of Labor regulations
state that claims procedures "will be deemed reasonable only if"
they ensure that "plan provisions [are] applied consistently with
respect to similarly situated claimants." 29 C.F.R. § 2560.503-
1(b)(5).3
3
Although this regulation applies only to claims made
after January 1, 2002, the Department of Labor emphasized that this
interpretation of ERISA was based on a long-standing requirement of
consistency. "Courts have long recognized that such consistency is
required even under the most deferential judicial standard of
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Contrary to Unum's arguments, we do not see a court's
consideration of internal memoranda as impermissibly narrowing the
discretion of plan administrators. By creating and promulgating
internal guidance documents, plan administrators choose to exercise
their discretion to define terms. When courts place weight on
those definitions, they do not narrow the plan administrator's
discretion beyond what the administrator itself has chosen to do.
There is nothing uncommon about reviewing courts
considering such internal memoranda containing ERISA
interpretations. For example, in Doe, this court considered
internal guidelines upon which Travelers, the plan administrator,
had relied in applying the mental health provisions of its plan.
167 F.3d at 59. We ultimately found the administrator's denial of
benefits unreasonable, in part because that denial conflicted with
Travelers' own guidelines. Id. Similarly, in Egert v. Conn. Gen.
Life Ins. Co., 900 F.2d 1032 (7th Cir. 1990), the Court of Appeals
for the Seventh Circuit relied on an internal memorandum in finding
arbitrary and capricious the plan administrator's denial of a claim
for in vitro fertilization on the ground that the plan authorized
reimbursement only for the treatment of an "illness" and
infertility was not an illness. Although the court found that
"illness" could be credibly interpreted either to include or to
exclude infertility, id. at 1037, it held that the denial was
review." 65 Fed. Reg. 70,246, 70,251 (Nov. 21, 2000).
-22-
arbitrary and capricious because "Connecticut General ha[d]
described infertility as an 'illness' in its own internal
guidelines," id. at 1038, which "outline[d] appropriate
applications of the Plan to individual circumstances," id. at
1034.4 The court stressed the importance of "uniformity of
construction" when evaluating whether an action was arbitrary and
capricious. Id. at 1037 (quoting Reilly v. Blue Cross & Blue
Shield United of Wisc., 846 F.2d 416, 420 (7th Cir. 1988), which
cites Dennard v. Richards Group, Inc., 681 F.2d 306, 318 (5th Cir.
1982)).
Here, RIMARE and the associated deposition testimony
regarding its use are relevant to the interpretation of the
Treatment Clause. In particular, RIMARE states that in applying
"3/12" exclusions, i.e., those that, like the Pre-Ex Clause here,
create a three-month Pre-Ex Period for disability claims made in
the first twelve months of coverage, the Treatment Clause does not
apply unless there is a "clear and direct relationship" between the
condition treated and the disabling condition.5 There is no
4
The court stated that the internal guidelines were not
"dispositive," but only in the sense that the interpretation
adopted in those guidelines would not govern if it was unreasonable
given the plan terms. See Egert, 900 F.2d at 1036.
5
Glista also points to RIMARE's statement that under this
court's decision in Hughes, "an insurer (such as UNUM), in order to
determine pre-x, needs to evaluate whether the physician and/or the
claimant had knowledge during the pre-x period, that the treatment
the insured was receiving was for the condition which is the cause
of the disability." We think that statement to be of limited
-23-
question as to RIMARE's authenticity or its use by Unum.6
Moreover, Van Deventer's deposition testimony establishes that
decisionmakers at Unum were instructed to consult RIMARE when
processing appeals and that RIMARE was in use when Glista's claim
was evaluated. Van Deventer, who made the decision to reject
Glista's appeal, received hands-on training on using RIMARE. The
fact that she does not remember if she actually relied on RIMARE in
evaluating Glista's claim does not undercut RIMARE's relevance.
See Cannon v. Unum Life Ins. Co. of Am., 219 F.R.D. 211, 214 (D.
Me. 2004) ("[I]f an internal memorandum existed that favored [the
claimant's] receipt of continuing benefits, the fact that it was
disregarded would be powerful evidence of an arbitrary and
capricious claims determination." (emphasis added)).
The Training Materials and the associated deposition
testimony regarding their use are relevant as well. In particular,
relevance. RIMARE specifically notes that Hughes does not affect
CXC contracts of the sort at issue in this case. That notation
likely reflects the fact that the contract in Hughes, unlike CXC
contracts, did not reserve discretion to the plan administrator and
was therefore subject to de novo review. 26 F.3d at 267.
6
Unum argues that RIMARE is of limited relevance because
RIMARE states that claims examiners should consult the specific
terms of the policy at issue because RIMARE applies to many
different types of contracts. It is true that some provisions of
RIMARE, such as that governing whether a pre-existing condition has
"manifested" itself, refer examiners to the language of the
specific contract at issue. But RIMARE's requirement of a "clear
and direct relationship" between the pre-existing condition and the
disabling condition is not limited in any such fashion. And RIMARE
clearly states that the requirement applies to the particular type
of contract at issue here.
-24-
we note the relevance of the statement in the Training Materials
that "[i]f the [medical review] does not establish a clear link
between the treatment in the pre-ex period & the disabling
condition, the disabling condition is not pre-ex" (emphasis
added).7 The Training Materials indicate that this statement is
intended to apply to pre-existing condition clauses of the 3/3/12
type in CXC contracts -- precisely the sort at issue here. Van
Deventer testified in her deposition that the Training Materials
were used in Unum's training courses on the application of pre-
existing conditions clauses, and the Training Materials indicate
that they were created on March 9, 1999, and revised on May 27,
1999, before Glista filed his claim with Unum in February 2000.
Accordingly, we give the Training Materials some weight, as they
reflect the plan administrator's interpretation of the Pre-Ex
Clause at the time Glista's claim was evaluated. We do not,
however, give them as much weight as RIMARE because it is not clear
that the decisionmakers in Glista's case knew or should have known
of the Training Materials when evaluating Glista's claim. Van
Deventer said in her deposition that she herself did not receive
training on using the Training Materials until after she had
7
Glista argues that the Training Materials are also
relevant because they demonstrate that the Symptoms Clause applies
only when the claimant has not sought treatment. We are not
certain that the Training Materials go so far. But we need not
address the weight we place on this section of the Training
Materials. For reasons we discuss later, Unum is barred from
relying on the Symptoms Clause in this litigation.
-25-
handled Glista's claim, and there is no evidence that any of the
other decisionmakers in Glista's case received such training.
IV.
We turn next to Glista's challenge to Unum's denial of
benefits. Our review of the district court's grant of judgment on
the administrative record is de novo. See, e.g., Spangler v.
Lockheed Martin Energy Sys., Inc., 313 F.3d 356, 361 (6th Cir.
2002). Where, as here, a plan administrator has discretion to
determine eligibility for and entitlement to benefits, the district
court must uphold the administrator's decision "unless it is
arbitrary, capricious, or an abuse of discretion." Gannon v.
Metro. Life Ins. Co., 360 F.3d 211, 212-13 (1st Cir. 2004)
(internal quotation marks omitted). The fact that Unum, the plan
administrator, will have to pay Glista's claim out of its own
assets does not change that standard of review. Pari-Fasano v. ITT
Hartford Life & Accident Ins. Co., 230 F.3d 415, 418-19 (1st Cir.
2000).
On arbitrary and capricious review, Unum's decision will
be upheld if the denial is reasonable and supported by substantial
evidence. Gannon, 360 F.3d at 212-13. Here, Unum argues that it
had two bases for denying benefits: the Treatment Clause and the
Symptoms Clause. We take up each in turn.
-26-
A. Treatment Clause
The Treatment Clause, as we have said, excludes coverage
for disabilities beginning in the first year of coverage when the
claimant "received medical treatment, consultation, care or
services including diagnostic measures, or took prescribed drugs or
medicines in the 3 months just prior to [his] effective date of
coverage" for a "condition" that caused, contributed to, or
resulted in his disability. RIMARE states that the Treatment
Clause applies only when there is "a clear and direct relationship
between the sickness or injury treated during the pre-existing
period and that causing the insured to become disabled." RIMARE
specifically states that "a 'possible' or 'hypothetical'
relationship is not a sufficient basis for denial of a claim." The
Training Materials further require "a clear link between the
treatment in the pre-ex period & the disabling condition," stating
that without such a link, "the disabling condition is not pre-ex."
In short, under Unum's interpretation as articulated in RIMARE and
the Training Materials, the Treatment Clause applies only where
there is a clear and direct relationship between the symptoms and
treatment in the Pre-Ex Period and the disabling condition (here,
PLS).
Even assuming arguendo, in Unum's favor on both
assumptions, that the Treatment Clause itself contains no awareness
requirement and, further, that the term "condition" can refer to an
-27-
array of symptoms,8 the Treatment Clause, as applied in RIMARE and
the Training Materials, does not provide a reasonable basis for
denying Glista's claim. Six events occurred during the Pre-Ex
Period: (1) Glista's April 23, 1999 visit to Dr. Pikus, a general
practitioner; (2) Dr. Pikus's prescription of Naprosyn; (3)
Glista's May 26, 1999 visit to Dr. Kolb, a neurologist; (4) an EMG
test on June 8, 1999; (5) lumbar and cervical MRIs on June 15,
1999; and (6) Dr. Kolb's prescription of Anaprox. None of those
events constituted treatment that was both itself clearly linked to
PLS and addressed to symptoms clearly linked to PLS.
Glista's visit to Dr. Pikus concerned complaints of left
leg weakness and heel pain, lower back pain, and arm pain. The
record does not support a "clear and direct relationship" between
those symptoms and PLS. It is undisputed that Glista suffered from
radiculopathy during the Pre-Ex Period and that those symptoms were
consistent with radiculopathy. Unum concedes in its brief that Dr.
Kolb's diagnosis of radiculopathy was correct, albeit, in Unum's
estimation, "incomplete." The evidence of record is that, to the
extent any clear and direct link existed between any illness and
the symptoms experienced by Glista when he visited Dr. Pikus, it
8
The parties disagree over whether the text of the
Treatment Clause requires the claimant and his treating physicians
to be aware that he suffers or could be suffering from the
disabling condition. They also disagree over whether the term
"condition" can refer to an array of symptoms or whether it refers
only to a specific sickness or injury. We express no opinion on
either dispute.
-28-
was between those symptoms and radiculopathy, not PLS. Indeed,
even after Glista had been diagnosed with PLS, Dr. Kolb's
assessment was that Glista's "pain related problems" during the
Pre-Ex Period were "not felt to be related to his disabling
diagnosis of primary lateral sclerosis."9
Dr. Pikus's prescription of Naprosyn is similarly
unhelpful to Unum. Dr. Pikus stated that he prescribed Naprosyn to
treat Glista's arm, back, and heel pain, symptoms that did not have
a "clear and direct relationship" to Glista's disabling condition
of PLS.
Glista's May 26, 1999 visit to Dr. Kolb did uncover a
symptom of PLS not consistent with radiculopathy: hyperreflexia.
Dr. Kolb noted that symptom in his report but did nothing further
about it during that visit. Unum argues that the mere fact of this
notation constituted treatment with a clear and direct relationship
9
Unum points to Dr. Kolb's responses on two attending
physician forms submitted in February 2000. Dr. Kolb indicated on
the first form that the "[d]ate of first visit for this illness or
injury" was May 26, 1999, and on the second form that "symptoms
first appear[ed]" in September 1998. These statements are not
sufficient to support a clear relationship between PLS and the
symptoms of pain and weakness that Glista experienced during the
Pre-Ex Period. Dr. Kolb's statement on the first form is most
logically read to mean that Glista began in May 1999 the process
that eventually uncovered PLS. Similarly, Dr. Kolb's statement on
the second form that symptoms consistent with PLS began in
September 1998 does not mean that those symptoms that occurred
during the Pre-Ex period were clearly attributable to PLS. Dr.
Kolb clarified his statements in a letter on May 9, 2000, stating
that although Glista had since been diagnosed with PLS, Glista's
pain-related symptoms during the Pre-Ex Period were related to
other health problems (chiefly, radiculopathy) and not to PLS.
-29-
to PLS. We disagree. Notation of a symptom in a report does not
constitute "treatment" for that symptom. Oxford English Dictionary
(2d ed. 1989) (defining "treatment" as "[m]anagement in the
application of remedies; medical or surgical application or
service"). Nor does it constitute "consultation" for that symptom.
The Oxford English Dictionary defines "consult" as "to take counsel
with; to seek advice from." Oxford English Dictionary (2d ed.
1989). The record does not indicate that Glista asked for or
received advice about his hyperreflexia, or that Dr. Kolb even
mentioned the symptom to Glista. Moreover, mere notation of the
symptom does not constitute a "diagnostic measure," much less one
clearly linked to PLS. A "measure" is a "plan or course of action
intended to attain some object," see Oxford English Dictionary (2d
ed. 1989). Notation of a symptom, without further investigation of
its causes, does not alone constitute a "plan or course of action"
for arriving at a diagnosis of PLS.
Dr. Kolb did order several diagnostic measures in
response to his examination of Glista. But none of those measures
was clearly linked to PLS. First, Dr. Kolb ordered an EMG. But
Dr. Kolb described the EMG as a test for "lower motor neuron
involvement," a point that has not been controverted by Unum's own
medical experts. See ALS Center at UCSF, Information About
Diagnosis and Related Disorders, available at
http://www.ucsf.edu/brain/als/diagnosis.htm ("Electromyography
-30-
(EMG) is a test that is very sensitive in detecting lower motor
neuron disease.") Lower motor neurons run from the spinal cord to
muscles. See Gould Medical Dictionary 781 (1979). PLS is a purely
upper motor neuron, not lower motor neuron, disease. (A. 561)
Upper motor neurons are located in the motor cortex of the brain
and run from the brainstem to the spinal cord. See Gould Medical
Dictionary 1428 (1979).
After the EMG, Dr. Kolb ordered lumbar and cervical MRIs,
which produced images of Glista's lower back and neck,
respectively. See Gould Medical Dictionary 782, 252 (1979)
(defining "lumbar" and "cervical"). Nothing in the record
indicates that either MRI had any relation to PLS. The cervical
MRI report did mention Glista's hyperreflexia among other symptoms
in his medical history, and Dr. Kolb later stated that the cervical
MRI "checked both for [Glista's] hyperactive reflexes and some mild
arm complaints." But the cervical MRI report stated that its
clinical concern was with "cervical myelopathy or demyelination."
Nothing in the record connects either of those conditions to PLS.
The only mention of either of those conditions in the record
indicates that demyelination is a sign of multiple sclerosis, not
PLS. Indeed, as best the record shows, Dr. Kolb used the cervical
and lumbar MRIs as tests for radiculopathy, a condition unrelated
to PLS and described by Dr. MacBride in his deposition as involving
pressure on nerve roots in the "cervical, thoracic or lumbar"
-31-
spine. Dr. Kolb stated in the report of Glista's July 22, 1999
visit (after the Pre-Ex Period had ended) that a diagnosis of
radiculopathy was "certainly supported by [Glista's] MRI and EMG
testing."
Dr. Kolb's prescription of Anaprox following the MRIs
does not trigger the Treatment Clause either. Dr. Kolb's July 22,
1999 report indicates that he prescribed the drug to treat Glista's
heel pain: "[Glista] complained of left heel pain . . . . I placed
him on Anaprox previously. He did not have much of a response to
this, but . . . [a]s he has become less active and more sedentary,
his heel pain has abated quite a bit." That pain, as we have
mentioned, was not clearly linked to PLS.
Using Unum's own definition of the Treatment Clause, the
decision to deny benefits under that clause was neither reasonable
nor supported by the evidence.
B. Symptoms Clause
Having determined that the denial of benefits cannot be
justified under the Treatment Clause, we turn to Unum's reliance on
the Symptoms Clause. Glista argues, inter alia, that Unum should
not be permitted to rely on the Symptoms Clause in litigation
because it did not rely on that clause in its communications to him
during the internal review process. We agree. Because we do not
reach the question whether the Symptoms Clause would have been a
proper basis for denying coverage if it had been raised earlier, we
-32-
do not address Golden Rule Ins. Co. v. Atallah, 45 F.3d 512, 517-18
(1st Cir. 1995), upon which Unum relies heavily in its discussion
of the applicability of the Symptoms Clause.
Both the statute and the ERISA regulations require that
the plan administrator provide a claimant with the specific reasons
for its denial of a claim. ERISA provides that:
In accordance with regulations of the Secretary, every
employee benefit plan shall . . . 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 .
. . .
29 U.S.C. § 1133 (emphasis added). The Department of Labor's
implementing regulations require that the initial notice of a claim
denial contain:
(1) The specific reason or reasons for the denial;
(2) Specific reference to pertinent plan provisions on
which the denial is based;
(3) A description of any additional material or
information necessary for the claimant to perfect the
claim and an explanation of why such material or
information is necessary; and
(4) Appropriate information as to the steps to be taken
if the participant or beneficiary wishes to submit his or
her claim for review.
-33-
29 C.F.R. § 2560.503-1(f) (2000).10 The regulations also require
that decisions in subsequent internal appeals "include specific
reasons for the decision, written in a manner calculated to be
understood by the claimant, as well as specific references to the
pertinent plan provisions on which the decision is based." §
2650.503-1(h)(3).
"[T]hese regulations are designed to afford the
beneficiary an explanation of the denial of benefits that is
adequate to ensure meaningful review of that denial." Halpin v.
W.W. Grainger, Inc., 962 F.2d 685, 689 (7th Cir. 1992); see
also Terry v. Bayer Corp., 145 F.3d 28, 39 (1st Cir. 1998) (the
purpose of 29 U.S.C. § 1133 and its implementing regulations is to
ensure "a sufficiently clear understanding of the administrator's
position to permit effective review" (internal quotation marks
omitted)).
The regulations also further the overall purpose of the
internal review process: "to minimize the number of frivolous
lawsuits; promote consistent treatment of claims; provide a
nonadversarial dispute resolution process; and decrease the cost
and time of claims settlement." Powell v. AT&T Comm., Inc., 938
F.2d 823, 826 (7th Cir. 1991); see also Makar v. Health Care Corp.
10
Additional requirements were added to this regulation in
2000, see 29 C.F.R. § 2560.503-1(g), but those amendments apply
only to claims made after January 1, 2002, see 65 Fed. Reg. 70,246,
70,246 (2000), and hence do not apply to Glista's claim.
-34-
of the Mid-Atlantic (Carefirst), 872 F.2d 80, 83 (4th Cir. 1989);
Short v. Cent. States, S.E. & S.W. Areas Pension Fund, 729 F.2d
567, 575 (8th Cir. 1984); Amato v. Bernard, 618 F.2d 559, 568 (9th
Cir. 1980). Those goals are undermined where plan administrators
have available sufficient information to assert a basis for denial
of benefits, but choose to hold that basis in reserve rather than
communicate it to the beneficiary. Such conduct prevents ERISA
plan administrators and beneficiaries from having a full and
meaningful dialogue regarding the denial of benefits. See Juliano
v. The Health Maint. Org. of N.J., Inc., 221 F.3d 279, 288 (2d Cir.
2000).
Glista argues that in Unum's communications to him during
the internal review process, Unum never mentioned the Symptoms
Clause as a reason for its denial and relied instead on the
Treatment Clause alone. Unum denies this. Our review of the
record supports Glista's characterization. ERISA requires denial
letters to be "written in a manner calculated to be understood by
the participant." 29 U.S.C. § 1133. We have little doubt that a
reasonable participant would have understood the denial to rest on
the Treatment Clause alone.11
11
Indeed, Glista's complaint and initial motions in the
District Court focused only on the Treatment Clause. Unum first
raised the Symptoms Clause, and not in its answer but only later in
its opposition to Glista's attempt to obtain discovery regarding
RIMARE and other internal documents relating to Unum's
interpretation of the Pre-Ex Clause.
-35-
The first denial letter, dated March 30, 2000, quoted the
entirety of the Pre-Ex Clause (including both the Symptoms and
Treatment Clauses) but stated that Unum had denied coverage because
"you were treated by Dr. Kolb on May 26, 1999 and June 8, 1999 for
a condition which caused, contributed to, or resulted in the
condition for which you are now claiming disability." That denial
was plainly based on the Treatment Clause.
The second denial letter, dated July 24, 2000, did
mention in its narrative of events that Glista had "neurological
symptoms present and under investigation" during the Pre-Ex Period
and that Glista's physicians recognized those "symptoms" as
"significant and worrisome." But these statements were used to
support the application of the Treatment Clause: the letter stated
that "[t]his medical information [in reference to the narrative
described above] clearly supports the fact that you received
treatment, consultation, care and services including diagnostic
measures in the 3 months prior to the effective date of insurance."
Although the word "symptoms" was used, it was never connected to
the Symptoms Clause or its requirements. No mention was made, for
example, of whether an "ordinarily prudent person would have
consulted a health care provider" for the symptoms described, as
required under the Symptoms Clause.
The third and final denial letter, dated November 21,
2000, also mentioned the word "symptoms," but again in the context
-36-
of the Treatment Clause. The letter stated, "Glista was treated
during the pre-existing time period for the same symptoms, which
ultimately led to his diagnosis of primary lateral sclerosis. As
a result, his disabling condition is the same condition for which
he received treatment, and therefore, coverage for this claim is
excluded." This denial was plainly based on the Treatment Clause.
Again, although the word "symptoms" was used, no mention was made
of the requirements of the Symptoms Clause, such as whether an
ordinarily prudent person would have consulted a doctor for the
symptoms described.
Unum argues that even if its letters to Glista did not
rely on the Symptoms Clause, its own internal documents demonstrate
that Dr. MacBride and Dr. Sullivan found Glista's condition to be
pre-existing based on the Symptoms Clause as well as the Treatment
Clause. Even assuming arguendo that Unum's characterization of
those documents is correct,12 internal documents cannot satisfy
ERISA's requirement that the specific reasons for the denial be
12
We are not certain that this is the case. Unum cites an
internal memorandum stating that "Medical review by Dr. MacBride
indicates [employee] . . . had symptoms for which an ordinarily
prudent person would have consulted a health care provider between
1/15/99 - 7/14/99." That quotation is misleading. The language in
ellipses indicates that Dr. MacBride's actual finding was that
Glista "received medical treatment, consultation, care or services
including diagnostic measure[s] or took prescribed drugs or
medicine, or had symptoms for which an ordinarily prudent person
would have consulted a health care provider." There was no
indication in that document that Dr. MacBride relied on the
Symptoms Clause in finding that Glista had a pre-existing
condition.
-37-
articulated to the claimant. Indeed, Unum violated ERISA and its
regulations by relying on a reason in court that had not been
articulated to the claimant during its internal review.
That leaves the question of how a court should address
the situation.13 In this context, no single answer fits all cases.
See Lauder v. First Unum Life Ins. Co., 284 F.3d 375, 381 (2d Cir.
2002) (adopting a "case-specific" approach to these situations).
Courts have adopted a variety of remedies. Some courts have simply
engaged in de novo, non-deferential review of the previously
unarticulated reason. Matuszak v. The Torrington Co., 927 F.2d
320, 322-23 (7th Cir. 1991); see also Gritzer v. CBS, Inc., 275
F.3d 291, 296 (3d Cir. 2002) (where plan administrator provided no
reason for denial, reasons provided for the first time in
litigation reviewed de novo); Mansker v. TMG Life Ins., 54 F.3d
1322, 1328 (8th Cir. 1995) (same). Other courts have limited the
grounds for decision to those articulated to the claimant by the
plan administrator. See Halpin, 962 F.2d at 696.
Some courts have held that the administrator waived
defenses to coverage not articulated to the insured during the
claims review process when the administrator had sufficient
information to have raised those defenses if it so chose. Lauder,
13
This court has held, in other contexts, that mere
procedural irregularities under the regulations do not
automatically entitle plaintiff to benefits. See Terry v. Bayer,
145 F.3d 28, 39 (1st Cir. 1998); Recupero v. N.E. Tel. & Tel. Co.,
118 F.3d 820, 840 (1st Cir. 1997).
-38-
284 F.3d at 380-81; Marolt v. Alliant Techsystems, Inc., 146 F.3d
617, 620 (8th Cir. 1998); Pitts v. Am. Sec. Life Ins. Co., 931 F.2d
351, 357 (5th Cir. 1991).
By contrast, other courts have held that state common law
doctrines of waiver have no place in review of ERISA claims, see
White v. Provident Life & Accident Ins. Co., 114 F.3d 26, 29 (4th
Cir. 1997), or that if such doctrines apply, they did not bar ERISA
plan administrators, on the facts of those particular cases, from
raising new bases for the denial of benefits in litigation. Farley
v. Benefit Trust Ins. Co., 979 F.2d 653, 659-60 (8th Cir. 1992);
Loyola Univ. of Chicago v. Humana Ins. Co., 996 F.2d 895, 901 (7th
Cir. 1993); see also Juliano, 221 F.3d at 288 (waiver not
applicable where new argument involves existence of coverage rather
than application of policy conditions).
Still other courts have remanded to the plan
administrator to consider new factual evidence or plan
interpretations presented for the first time to the district court.
See Vizcaino v. Microsoft Corp., 120 F.3d 1006, 1014 (9th Cir.
1997) (en banc) (new plan interpretation); Wolfe v. J.C. Penney
Co., 710 F.2d 388, 393 (7th Cir. 1983) (new factual evidence). In
our case, no new factual evidence has been submitted ab initio to
the court.
-39-
We turn back to ERISA, the governing statute. On review
of ERISA benefit claims, Congress gave the federal courts a range
of remedial powers:
A civil action may be brought . . . by a participant,
beneficiary, or fiduciary (A) to enjoin any act or
practice which violates any provision of this subchapter
or the terms of the plan, or (B) to obtain other
appropriate equitable relief (i) to redress such
violations or (ii) to enforce any provisions of this
subchapter or the terms of the plan.
29 U.S.C. § 1132(a). We think that this power encompasses an array
of possible responses when the plan administrator relies in
litigation on a reason not articulated to the claimant.
Here, we conclude that several factors weigh in favor of
barring Unum from raising the Symptoms Clause for the first time in
this litigation. First, traditional insurance law places the
burden on the insurer to prove the applicability of exclusions such
as the Pre-Ex Clause. See 2 Law and Prac. of Ins. Coverage Litig.
§ 1.3 (describing as "well-settled" the rule that "the burden of
proving that an exclusion defeats coverage rests with the
insurer"); GRE Ins. Group v. Metro. Boston Hous. P'ship, Inc., 61
F.3d 79, 81 (1st Cir. 1995) (under Massachusetts law, insurer bears
burden of proof on exclusions). Although background rules of state
law are not controlling, they are reinforced here by ERISA's
statutory command that the administrator articulate specific
reasons for a denial of benefits. 29 U.S.C. § 1133; see also McGee
v. Equicor-Equitable HCA Corp., 953 F.2d 1192, 1205 (10th Cir.
-40-
1992) (ERISA insurer bears burden of proof in demonstrating
applicability of exclusion); Farley, 979 F.2d at 658 (same).
Second, the Plan here expressly provides that
participants "must receive a written explanation of the reason for
the denial" of benefits. It states that "Unum will notify you [of
a denial of benefits] in writing within 90 days after your claim
form was filed" and that this "notice of denial shall include . .
. the specific reason or reasons for denial with reference to those
policy provisions on which the denial is based." The Plan also
provides that in Unum's internal appeals process, "[t]he final
decision on review shall be furnished in writing and shall include
the reasons for the decision with reference, again, to those policy
provisions upon which the final decision is based." Unum could
hardly be caught by surprise by an insistence that it comply with
its own plan.
Third, Unum, by claiming that it did raise the Symptoms
Clause, has taken the position that it had sufficient information
to raise the Symptoms Clause during the claims review process. No
information was withheld from it. Indeed, in arguing in this
litigation that the Symptoms Clause applies, Unum has relied
exclusively on the administrative record created during the claims
review process. Unum has offered no explanation for why it did not
explain earlier to Glista that the Symptoms Clause was a basis for
-41-
the denial of benefits. Congress intended ERISA insurers to speak
clearly, in plain language, to plan recipients.
Fourth, Glista's medical condition calls for resolving
this controversy quickly. Glista, who is unable to work, filed his
application for benefits on February 6, 2000. Almost two months
later, his application was denied. The administrative appeal
process took nearly eight more months. Litigation in the district
court, unfortunately, added another thirty months. As we write, it
has been over four years since Glista applied for benefits. PLS is
degenerative and can be terminal. Dr. MacBride, on reviewing
Glista's medical file in March 2000, estimated that Glista had
three to four years to live; Glista has already reached that point.
Under these circumstances, we think the "appropriate
equitable relief" is to hold Unum to the basis that it articulated
in its internal claims review process for denying benefits, i.e.,
the Treatment Clause. We recognize that ERISA trusts plan
administrators to make the first determination as to the
availability of benefits and thus that remand may be appropriate in
some, or even many, cases. But, given the countervailing concerns
raised on the facts of this particular case, we do not find that to
be the appropriate solution here. Unum failed to raise the
Symptoms Clause in the claims review process even though it had the
burden, obligation, and opportunity to do so. We simply do not
know, had Unum raised the Symptoms Clause, what additional
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information would have been provided to Unum by Glista or whether
Glista would have settled his claim with Unum earlier. In addition
to driving up the cost of proceedings, Unum's failure may well have
prevented a more efficient resolution of this case.
V.
We reverse the grant of judgment in favor of Unum and
hold that Glista is entitled to judgment. We remand with
instructions that an order be entered requiring Unum to pay the
benefits that Glista seeks, including all benefits past due, with
any interest to which he may be entitled. Glista is awarded his
costs.
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