328 F.Supp.2d 186 (2004) | Cited 2 times | D. Massachusetts | August 10, 2004


Plaintiff Mark R. Colby ("Colby") filed this action againstDefendant UnumProvident ("Unum"), alleging wrongful terminationof his long-term disability benefits in violation of the EmployeeRetirement Income Security Act of 1974 ("ERISA").1

Both parties have filed dispositive motions, which are nowbefore this court.


A. Background

The parties briefed motions for judgment on the administrativerecord and submitted the Administrative Record ("the Record"),which was the basis for Unum's decision that Colby no longerqualified for long-term disability benefits. The following factsare derived from that Record.

Colby is a sixty-three-year-old former case coordinator atNorth Charles, Inc. ("North Charles"). Such a position qualifies as "light capacity"employment.2 He began working at North Charles in 1997,and he had been working there full-time when he filed his claimfor long-term disability in 2001. Unum was at all relevant timesthe plan administrator and insurer of North Charles' EmployeeDisability Plan ("the Plan"). The Plan is an employee benefitplan and is, therefore, governed by ERISA.3

On January 9, 2001, Colby suffered a stroke.4 He washospitalized at Beth Israel Medical Center until January 16,2001, at which time he was transferred to SpauldingRehabilitation Hospital for further treatment. He was dischargedfrom the rehabilitation hospital on January 27, 2001, and he thenreceived care from Spaulding's Home Health Agency from February1, 2001 through February 8, 2001. In addition, Colby's treatingphysician, Dr. Eva Selhub, prescribed physical therapy for him.Colby was discharged from that therapy at the end of June 2001.

Colby filed his initial claim for disability benefits onJanuary 25, 2001. Unum approved his claim on April 11, 2001 andimmediately began paying Colby benefits under the Plan.5

In August 2001, Dr. Selhub submitted a letter to Unum at itsrequest, in which she noted, "[Colby] is limited by a lot offatigue especially on the extremities effected by the stroke. Heis unable to stand or walk for long periods of time, nor able toconcentrate."6

Unum reevaluated Colby's claim for disability benefits inJanuary 2002. It conducted a medical review of Colby's file anddetermined that Colby had no neurological impairment and hadrecovered sufficiently from his stroke to engage in "sustainedlight functional capacity" work.7 On February 22, 2002,Unum terminated Colby's benefits. In its letter to Colby, Unumstated: In review of the information available to us, from a neurovascular standpoint, we conclude that you would have sustained light functional capacity. In regards to the restrictions and limitations provided by Dr. Selhub, we were not provided any objective medical evidence to support them. . . . . If you have new, additional information not already in our file to support your request for disability benefits, please send it to the address noted in this letter. For example: • All current medical records (including treatment notes, procedure notes, and test results) from all treating providers from August 1, 2001 to the present. • A list from your physician indicating the activities you cannot and should not do along with an explanation of the medical reasoning supporting these restrictions and limitations. • The enclosed Functional Capacities Evaluation form and supplemental form.8

Colby appealed Unum's decision by a letter dated March 20,2002. With that letter, Colby submitted to Unum two additionalreports. One of the reports was from Dr. Jeffrey Garber, hisendocrinologist, who opined that "[i]t may well take severalmonths to optimize his hormonal status, which could interferewith his functional status in many ways."9 The otherreport was an Estimated Functional Abilities form completed byDr. David August, Colby's internist. Dr. August wrote: Mr. Colby has had [two] strokes. He has gradually improved BUT his recovery is clearly delayed secondary to a pituitary tumor, HTN [hypertension], diabetes, [and] hyperlipidemia [high cholesterol]. It would be impossible for him to work at present BUT his prognosis is reasonably good and he should be able to return to work at some point.10

On May 3, 2002, Unum notified Colby that it was upholding itsdecision to terminate his benefits. Explaining its decision, Unumwrote: Dr. Garber's records document you report being tired, exhausted and poor energy level, but your attending physician does not indicate how your daily activities or functional capacity is effected by this condition. . . . To date we have not been provided any objective medical data to review regarding treatment provided by Dr. August for conditions of status post two strokes, pituitary tumor, hypertension (HTN), diabetes or hyperlipidemia referenced on the estimated functional abilities dated March 4, 2002.11

As part of Colby's next appeal, Dr. August completed a PhysicalResidual Capacity Questionnaire ("Questionnaire") on June 24,2002, which was submitted to Unum soon thereafter. In theQuestionnaire, Dr. August concluded that, due to his disability,Colby: (1) suffers from severe fatigue and exhaustion, (2) cansit for one to two hours, (3) can stand for ten to fifteenminutes, (4) can sit for a total of three hours in an eight-hourworkday, (5) can stand for a total of thirty to sixty minutes inan eight-hour workday, (6) should walk four to five times fortwenty to thirty minutes in an eight-hour workday, (7) will needto take unscheduled breaks during the workday, and (8) willlikely be absent from work more than four times permonth.12 Colby also submitted the medical records fromthe Beth Israel Hospital Emergency Room, where he obtainedtreatment for complaints of weakness and lightheadedness on July24, 2002.

Despite this new evidence, Unum upheld its decision toterminate Colby's benefits. B. Standard of Review

The appropriate standard of review for denial of benefitsclaims under ERISA is outlined by the Supreme Court in FirestoneTire and Rubber Company v. Bruch.13 In Firestone, theCourt differentiated between a plan that "gives the administratoror fiduciary discretionary authority to determine eligibility forbenefits or to construe the terms of the plan"14 and onethat does not.15 A court reviewing the denial of ERISAbenefits under a plan that accords the plan administratordiscretion must apply a deferential standard of review.16There is no dispute that Unum, as plan administrator, haddiscretion to construe the terms of the Plan.17

The First Circuit has explicitly laid out the deferentialstandard a district judge must follow in reviewing suchclaims.18 Following the guidance of the Supreme Court inFirestone, the First Circuit reiterated that "an insurer'stermination decision will be reviewed under a deferentialarbitrary and capricious standard where . . . the language of theunderlying plan reserves discretion to the insurer in determining eligibility forbenefits."19 A judge "must ask whether the aggregateevidence, viewed in the light most favorable to the non-movingparty, could support a rational determination that the planadministrator acted arbitrarily in denying the claim forbenefits,"20 for "the arbitrary and capricious standardasks only whether a factfinder's decision is plausible in lightof the record as a whole."21

C. Analysis

Colby asserts that Unum's decision to terminate his benefitswas "unreasonable, arbitrary and capricious."22 Hepresents two main arguments in favor of his position. First,Colby contends that Unum erred when it cited, as a reason for thetermination of benefits, Colby's failure to provide objectivemedical evidence of his disabling impairment. Colby insists thathe had submitted adequate evidence. And second, Colby argues thatUnum failed to abide by ERISA's statutory procedures fornotification of the denial of his claim.23

To qualify for benefits under the Plan, a claimant must showthat: — [he is] limited from performing the material and substantial duties of [his] regular occupation due to [his] sickness or injury; and — [he has] a 20% or more loss in [his] indexed monthly earnings due to the same sickness or injury. After 24 months of payments, [he is] disabled when UNUM determines that due to the same sickness or injury, [he is] unable to perform the duties of any gainful occupation for which [he is] reasonably fitted by education, training or experience.24In addition, Unum requires the claimant to submit the followingas proof of his claim: — that [he is] under the regular care of a doctor; — the appropriate documentation of [his] monthly earnings; — the date [his] disability began; — the cause of [his] disability; — the extent of [his] disability, including restrictions and limitations preventing [him] from performing [his] regular occupation; and — the name and address of any hospital or institution where [he] received treatment, including all attending doctors.25Unum also reserves the right to request that the claimant sendproof of his continuing disability, which requires that theclaimant show he is still under the regular care of adoctor.26 Colby, at least initially, met all of theabovementioned requirements, and Unum began paying him long-termdisability benefits in April 2001.

Colby's benefits were terminated in February 2002 after Unumconducted a medical review of his claim. His claim was reviewedby two members of Unum's medical department, Nurse Elizabeth M.Israel and Dr. George J. DiDonna. Nurse Israel concluded thatColby, "from a neurovascular standpoint[,] has sustained lightfunctional capacity" and that "with regard to the restrictionsand limitations . . . from Dr. Selhub[,]. . . . [Dr. Selhub] doesnot provide objective evidence to support [them]."27 Dr.DiDonna agreed with Nurse Israel's assessment and noted in hisreport to Unum that there was "[n]o documentation of neurologicalimpairment."28 Despite the great deference that courts must give suchdeterminations, this court finds that Unum's decision toterminate Colby's benefits was arbitrary and capricious. It isundisputed that Colby suffered his second stroke in January 2001.It is also undisputed that Unum initially considered hiscondition debilitating enough to award him long-term disabilitybenefits. And, while the Record certainly shows that Colby hasmade significant progress in terms of improving from his stroke,there is no evidence that Colby has recovered sufficiently toengage in "sustained light functional capacity" work.

This court is aware that Unum is not required to give specialdeference to the opinion of a claimant's treatingphysician.29 Unum, however, "may not arbitrarily refuseto credit a claimant's reliable evidence, including the opinionsof a treating physician."30 And, none of Colby's treatingphysicians has indicated that he has improved sufficiently toengage in "sustained light functional capacity" work. In fact,all of them recount the same impediment — limitation due tofatigue.

Unum asserts that it does not need to consider Dr. Selhub'sopinions concerning Colby's restrictions and limitations becausethey were not supported by objective medical evidence. This courtdisagrees. Unum must consider those restrictions and limitationseven if they were not supported by objective medical evidence.

The First Circuit has acknowledged that not all disabilitiescan be supported by "objective medical evidence."31 InBrigham v. Sun Life of Canada, the First Circuit recognizedthat these types of cases "are by nature very fact-oriented," andthat "laboratory tests or similar diagnostic procedures will not always be necessary to substantiate a claimof disability, as certain disabling conditions are notsusceptible to such objective evaluations."32 While theimmediate cause of Colby's disability, his stroke, can be, andwas, revealed via diagnostic testing, his residual physicallimitations cannot. And, Colby has submitted more than adequatedocumentation of his stroke and the limitations that it hascaused.

Unum's subsequent denials of Colby's appeals are equallyarbitrary and capricious. With each appeal, Colby submittedupdated medical reports from his treating physicians. TheQuestionnaire completed by Dr. August on June 24, 2002 againdelineated Colby's restrictions and limitations. ThisQuestionnaire, while still concluding that Colby was unable toreturn to work, imposed fewer restrictions on Colby's activitiesthan the ones contained in his August 2001 report. Colby'scondition was improving, but he had still not recoveredsufficiently to engage in "sustained light functional capacity"work.

No evidence in the Record contradicts the medical reportssubmitted by Colby. Nowhere does Unum allege that Colby isparticipating in activities that belay the restrictions andlimitations imposed by his physicians, nor did Unum conduct anindependent medical examination of Colby that could have produceda contrary opinion of his medical condition. The medical opinionson which Unum relied were provided by a nurse and a doctor whonever actually examined Colby and, instead, depended onobservations made by others.

Because this court holds that Unum's decision to terminateColby's benefits was arbitrary and capricious, there is no needto address the merits of Colby's argument that Unum failed toabide by ERISA's statutory procedures for notification of thedenial of his claim. Unum shall pay Colby all benefits due from the date of its original denial ofbenefits through his twenty-four month initial benefits period.Unum shall also conduct a new claim review to determine whetherColby is entitled to receive benefits subsequent to that date.


For the foregoing reasons, Plaintiff's motion for judgment onthe administrative record is ALLOWED, and Defendant's motion forjudgment on the administrative record is DENIED. AN ORDER WILLISSUE.

1. 29 U.S.C. §§ 1001 et seq.

2. Administrative R. at 225.

3. Id.; see 29 U.S.C. § 1144(a).

4. This was Colby's second stroke in three years. He sufferedan earlier stroke in 1998, but he had fully recovered by 2001.Mem. in supp. of Pl.'s Mot. for J. at 3.

5. The plan had a three-month "elimination period" duringwhich no benefits would be paid. Administrative R. at 519.Colby's elimination period ran from January 9, 2001 to April 9,2001. So, Unum's payment obligation commenced on April 10, 2001.

6. Administrative R. at 220.

7. Id. at 231.

8. Id. at 238-39 (emphasis in original).

9. Id. at 247.

10. Id. at 245.

11. Id. at 277-78.

12. Id. at 301-06.

13. 489 U.S. 101 (1989).

14. Id. at 115.

15. Id.

16. Id. at 111.

17. Colby, while agreeing that Unum had discretion to construethe terms of the Plan, argues that this court should apply anelevated arbitrary and capricious standard of review because Unumis both the plan administrator and the insurer. Mem. in supp.Pl.'s Mot. for J. at 5; see Doe v. Travelers Ins. Co.,167 F.3d 53 (1st Cir. 1999). Because this court finds that Unumdecision to terminate benefits was arbitrary and capricious underthe more deferential standard, it need not address the merits ofColby's argument.

18. Leahy v. Raytheon Co., 315 F.3d 11, 18 (1st Cir. 2002).

19. Pari-Fasano v. ITT Hartford Life & Accident Ins. Co.,230 F.3d 415, 418 (1st Cir. 2000).

20. Id.

21. Id. at 17.

22. Mem. in supp. of Pl.'s Mot. for J. at 6.

23. See 29 U.S.C. § 1133 & 29 C.F.R. § 2560.503-1.

24. Administrative R. at 519 (emphasis in original).

25. Id. at 536 (emphasis in original).

26. Id.

27. Id. at 231.

28. Id.

29. Black & Decker Disability Plan v. Nord, 538 U.S. 822,825 (2003) (holding that "plan administrators are not obliged toaccord special deference to the opinions of treatingphysicians").

30. Id. at 834.

31. See Brigham v. Sun Life of Canada, 317 F.3d 72, 84(1st Cir. 2003).

32. Id. at 84.

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