Colby v. Union Security Insurance Compa

Filing

OPINION issued by Michael Boudin, Appellate Judge; Bruce M. Selya, Appellate Judge and Norman H. Stahl, Appellate Judge. Published. [11-2270]

Case: 11-2270

Document: 00116481056

Page: 1

Date Filed: 01/17/2013

Entry ID: 5704689

United States Court of Appeals
For the First Circuit
No. 11-2270
JULIE COLBY,
Plaintiff, Appellee,
v.
UNION SECURITY INSURANCE COMPANY & MANAGEMENT
COMPANY FOR MERRIMACK ANESTHESIA ASSOCIATES
LONG TERM DISABILITY PLAN,
Defendant, Appellant.
ASSURANT EMPLOYEE BENEFITS; FORTIS BENEFITS INSURANCE COMPANY,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Boudin,* Selya and Stahl,
Circuit Judges.
Joshua Bachrach, with whom Wilson, Elser, Moskowitz, Edelman
& Dicker LLP was on brief, for appellant.
Mala M. Rafik, with whom Sean K. Collins, S. Stephen
Rosenfeld, and M. Katherine Sullivan were on brief, for appellee.

*

Judge Boudin heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's opinion. The remaining two panelists have
issued the opinion pursuant to 28 U.S.C. § 46(d).

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SELYA, Circuit Judge.

Date Filed: 01/17/2013

Entry ID: 5704689

This cutting-edge case involves

the existence vel non of an obligation to pay long-term disability
(LTD) benefits under a conventional group insurance plan.

The

central question is whether, in an addiction context, a risk of
relapse

can

disability.

be

so

significant

as

to

constitute

a

current

Although we recognize that our decision creates a

circuit split, we answer this question affirmatively and uphold the
district court's award of LTD benefits to the plaintiff.

In our

view, a risk of relapse into substance dependence — like a risk of
relapse into cardiac distress or a risk of relapse into orthopedic
complications

—

can

swell

to

so

significant

a

level

as

to

constitute a current disability.
I.

BACKGROUND
Between 1988 and 2004, the plaintiff, Dr. Julie Colby,

was a partner in a medical practice known as Merrimack Valley
Anesthesia Associates (MVAA).
staff

anesthesiologist

Massachusetts.

at

a

In that capacity, she served as a
hospital

located

in

Newburyport,

Her schedule was demanding: she worked 60 to 90

hours per week.
The landscape changed dramatically in July of 2004, when
a colleague happened upon the plaintiff "sleeping or unconscious"
on a table in the hospital.

The plaintiff tested positive for

Fentanyl, an opioid used in her anesthesiology practice.

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As

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matters turned out, she had for some time been self-administering
opioids and had become addicted.
The consequences of this discovery were stark: within a
matter of weeks, the plaintiff took a leave of absence and entered
inpatient substance abuse treatment at the Talbott Recovery Campus
(Talbott) in Atlanta, Georgia. Talbott professionals diagnosed the
plaintiff as having an opioid dependence, a dysthymic disorder, and
obsessive-compulsive personality traits.

In addition, her intake

examination revealed severe back pain associated with degenerative
disc disease and a history of major depression.
The plaintiff stayed at Talbott until November of 2004,
after which she remained under regular medical supervision on an
outpatient basis.

For aught that appears, she has not resumed her

use of Fentanyl.

Her license to practice medicine was first

relinquished, then revoked.
When the plaintiff's dependence on opioids came to light,
her employer, MVAA, had in force a group employee benefit plan,
underwritten and administered by Union Security Insurance Company
& Management Company for Merrimack Anesthesia Associates Long Term
Disability Plan (USIC), which included LTD benefits.1

The plan is

governed by the Employee Retirement Income Security Act of 1974
(ERISA), 29 U.S.C. §§ 1001-1461.

1

The parties variously refer to the paperwork undergirding
the LTD benefits as "the plan" or "the policy." We use these terms
interchangeably.
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The plan had a 90-day waiting period (denominated as a
"qualifying period") for LTD benefits.

When the plaintiff applied

for those benefits, USIC approved payment from the end of that
period (November 8, 2004) to the end of her stay at Talbott
(November 20, 2004).
point.

But USIC refused to pay benefits past this

It noted that the plaintiff had been discharged from

Talbott and that, although she remained under a doctor's care and
feared a relapse, a "risk for relapse is not the same as a current
disability."
The plaintiff exhausted her administrative appeals within
the structure of the plan and then brought suit in the federal
district court.

See 29 U.S.C. § 1132(a)(1)(B).

Her complaint

named an array of defendants but, to all intents and purposes, USIC
— the lone appellant — is the real party in interest.

For ease in

exposition, we refer to USIC as if it were the sole defendant.
In due course, the parties cross-moved for judgment on
the record.

Ruling on these cross-motions, the district court

deemed USIC's termination of benefits unreasonable.

Colby v.

Assurant Emp. Benefits (Colby I), 603 F. Supp. 2d 223, 244 (D.
Mass. 2009).

Pertinently, the court stated that a denial of

benefits premised on the ground that an "LTD plan does not cover
future risk generally or treats physical and psychological future
risks differently, absent language allowing such distinctions, is
arbitrary and capricious."

Id.

The court remanded the matter for

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further consideration "[b]ecause USIC [had] categorically excluded
risk of relapse as a basis for disability" and thus had not
"conducted the appropriate analysis, i.e. whether the probability
of Dr. Colby relapsing upon a return to the practice of medicine
was so high" that she was totally disabled under the plan.

Id. at

246.
The remand had little practical effect.

USIC's position

hardened: it continued to resist the payment of any benefits beyond
November 20,

2004,

insisting

that

"[u]nder

the

terms

of

the

applicable policy, risk of a potential future disability is not
considered a current disability for which benefits are available."
The plaintiff again exhausted her administrative appeals
and repaired to the district court.

The district court reopened

the case, and, responding to a new set of cross-motions for
judgment on the record, awarded the plaintiff LTD benefits for the
remainder of the 36 month period (the maximum available to her
under the plan).

Colby v. Assurant Emp. Benefits (Colby II), 818

F. Supp. 2d 365, 384 (D. Mass. 2011).

In support, the court

explained "that categorically excluding the risk of drug abuse
relapse is an unreasonable interpretation of the Plan."
378.
II.

Id. at

This timely appeal followed.
ANALYSIS
The plan at issue here is conventional, and its contours

are unremarkable.

The baseline facts are pellucid: the plan falls

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within the compass of ERISA, USIC is the plan administrator, and
the plan documents vest discretion in the plan administrator with
respect to both the interpretation and application of the plan's
provisions.

Refined to bare essence, this appeal poses only a

single question: whether, under the plan, USIC exercised its
discretion reasonably in terminating the plaintiff's benefits on
the ground

that

risk

of

relapse

cannot

constitute

a

present

disability.
We approach this question with an understanding that our
review is deferential.

Where, as here, the administrator of an

ERISA plan is imbued with discretion in the interpretation and
application of plan provisions, its use of that discretion must be
accorded deference.
U.S. 101, 115 (1989).
of discretion.

See Firestone Tire & Rubber Co. v. Bruch, 489
It follows that judicial review is for abuse

See Conkright v. Frommert, 130 S. Ct. 1640, 1646

(2010); Firestone Tire, 489 U.S. at 115.
In the ERISA context, this metric is equivalent to the
familiar arbitrary and capricious standard. D & H Therapy Assocs.,
LLC v. Bos. Mut. Life Ins. Co., 640 F.3d 27, 34 & n.5 (1st Cir.
2011); Cook v. Liberty Life Assur. Co., 320 F.3d 11, 17 n.7 (1st
Cir. 2003).

Whatever label is applied, the relevant standard asks

whether a plan administrator's determination "is plausible in light
of the record as a whole, or, put another way, whether the decision

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is supported by substantial evidence in the record."

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Leahy v.

Raytheon Co., 315 F.3d 11, 17 (1st Cir. 2002) (citations omitted).2
Even though this standard of review is deferential, we
hasten to add that there is a sharp distinction between deferential
review and no review at all.

"Applying a deferential standard of

review does not mean that the plan administrator will prevail on
the merits."

Conkright, 130 S. Ct. at 1651.

In order to withstand

scrutiny, the plan administrator's determinations must be "reasoned
and supported by substantial evidence." D & H Therapy, 640 F.3d at
35 (internal quotation marks omitted).
reasonable.

In short, they must be

See Conkright, 130 S. Ct. at 1651.

In some cases, an inherent conflict of interest exists;
that is, the plan administrator (typically, an insurer) not only
evaluates claims but also underwrites the plan.
dual role here.

USIC has such a

See Colby II, 818 F. Supp. 2d at 377; Colby I, 603

F. Supp. 2d at 236.

This inherent conflict may be weighed as a

factor in assessing the reasonableness of USIC's decision, but its
existence does not perforce alter our standard of review.

See

Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 115, 117 (2008).

2

Where applicable, the abuse of discretion standard binds all
reviewing courts, whether district or appellate, in the evaluation
of a plan administrator's determinations. Accordingly, we review
de novo the district court's own assessment of USIC's decision.
See Leahy, 315 F.3d at 17-18.
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Against this backdrop, we turn to the plaintiff's claim.3
The case for coverage is straightforward.

The plan contains an

"occupation test." The scope of coverage under the occupation test
is set out in simple terms.

The plan covers an "injury" or

"sickness" that requires a claimant to "be under the regular care
and attendance of a doctor, and prevents [her] from performing at
least one of the material duties of [her] regular occupation"
(emphasis in original).

Coverage pursuant to this metric applies

to the first 36 months of a period of disability, subsequent to a
90-day waiting period.4
For purposes of this test, the plaintiff's "regular
occupation" is that of "physician."
therefore,
physician.

relates

to

the

The issue in this case,

plaintiff's

ability

to

See Colby I, 603 F. Supp. 2d at 237-38.

work

as

a

Under the

plan, the material duties of that position include working fulltime (at least 45 hours per week), reviewing and evaluating medical
records, diagnosing patients' medical conditions, "[e]xpress[ing]

3

In our review of this matter, we focus on opioid dependence.
Although the plaintiff's application for LTD benefits cited a
number of grounds in addition to opioid dependence, the district
court rejected these other grounds.
The plaintiff has not
challenged this ruling.
4

The district court found the plaintiff ineligible for LTD
benefits past this 36-month span pursuant to the policy's "Any
Gainful Occupation" test. See Colby II, 818 F. Supp. 2d at 384.
The plaintiff has not challenged this finding on appeal.
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an opinion on or prescrib[ing], diagnostic measures and treatment,"
and recording and reporting facts and findings.5
The definitions contained in the plan make clear that
substance abuse, dependence, and addiction — like mental illness
more generally — are conditions that may give rise to "sickness"
within the purview of the plan.

The plaintiff says that during the

relevant period she suffered from opioid dependence and addiction,
remained under the regular care of a series of doctors, and faced
such a significant risk of relapse that she could not perform one
or more of the material duties of her customary occupation.

This

risk of relapse was particularly acute because returning to work as
a physician would afford her easy access to opioids and other
addictive substances.
Although

there

is

evidence

pointing

in

different

directions, the record generally suggests that the plaintiff was at
a

high

risk

of relapse

into opioid

discharge from inpatient care.6

dependence

following her

Her attending physician at Talbott

5

Although USIC says that anesthesiologists, as compared to
physicians generally, have an increased exposure to opioids, its
initial motion for judgment on the record asserted that "any
difference between job classification really does not matter"
because "risk of relapse . . . is not a proper basis for a
disability claim." Its later motion did not back away from this
assertion.
Thus, we need not inquire into the effect of the
differing
levels
of
opioid
temptation
(if
any)
between
anesthesiologists and other physicians.
6

The district court repeatedly used the phrase "substance
abuse." See, e.g., Colby II, 818 F. Supp. 2d at 369; Colby I, 603
F. Supp. 2d at 226, 238. USIC seizes upon this awkward locution,
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recommended that she should "not return to the practice of medicine
for six months to allow her to continue to work on her recovery."
The plaintiff followed this advice and entered into a three-year
contract with Physician Health Services (PHS),7 which required her,
among other things, to abstain from alcohol and drugs, submit to
random urine screens, meet with a therapist (once or twice per
month), attend a weekly support group, and submit to monitoring by
a physician.
The
theoretical.

plaintiff's

risk

of

relapse

was

not

merely

In perhaps the most striking actualization of this

risk, the plaintiff was arrested in May of 2005 — some six months
after her departure from Talbott — for driving under the influence
of

alcohol.

This

incident constituted

a relapse

within

the

parameters of her PHS contract and precipitated the execution of a
new contract (which restarted the three-year clock).

directing our attention to the difference between substance abuse
and substance dependence.
We agree that substance abuse and
substance dependence are distinct conditions, see Diagnostic &
Statistical Manual of Mental Disorders 191-99 (4th ed., text rev.
2000), but any error in this regard was harmless. A diagnosis of
substance dependence necessarily preempts a diagnosis of substance
abuse, id. at 198, and the record makes manifest that the plaintiff
was appropriately diagnosed with the former condition.
7

According to its website, PHS "is a non-profit corporation
founded by the [Massachusetts Medical Society] that provides
confidential consultation and support to physicians, residents and
medical students facing health concerns related to: Alcoholism[,]
Substance abuse[,] Behavioral or mental health issues[, and]
Physical illness."
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Here, moreover, the plaintiff's opioid dependence did not
exist in a vacuum; instead, it was part of a constellation of
factors, including back pain and various mental health disorders.
See Colby I, 603 F. Supp. 2d at 238.

Copious evidence, including

statements by her therapist, Patricia Dell-Ross, linked her opioid
dependence to her back pain, her turbulent personal life, and the
stresses of her job.8
thus

contemplated

Her professed inability to return to work

not

only

enhanced

physical

and

logistical

exposure to her drug of choice but also the likely exacerbation of
other triggering conditions.

Cognizant of this nearly perfect

storm, Dell-Ross, in a letter dated January 30, 2007, predicted
that, should the plaintiff return to work, her "access to opiates,
. . . combined with the usual and unusual stressors of everyday
life and work would make her relapse almost inevitable."
The record reflects that, due largely to the risk of
relapse, a number of medical experts agreed that the plaintiff
remained disabled for at least some period of time following her
discharge

from

Talbott.

On

November

1,

2005,

Dr.

Alan

A.

Wartenberg wrote that "to a reasonable degree of medical certainty,
[] Dr. Colby is at high risk of relapse should she return to the

8

The term "turbulent personal life" is hardly an
overstatement. For example, during the 2005-2007 time frame, the
plaintiff's mother-in-law (with whom she was close) died of cancer;
her mother drowned in a hotel bathtub; and her abusive ex-husband,
after attempting to interfere with her custody of their twin
daughters, died of a heroin overdose.
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practice of anesthesia, or to any situation where she could access
anesthetic opioids." The plaintiff, he added, "appears to still be
in significant denial and minimizes the level of her dependency and
the dangers associated with her drug use."
Marcus

J.

Goldman

wrote

that

the

In the same vein, Dr.

plaintiff

had

psychiatric

functional incapacity from July 2004 through the end of 2005 and
that her "risk of relapse . . . was significant."

As such, "she

could not work from July 2004 through to December 2005."

So, too,

Dr. William B. Land wrote that the plaintiff's "combination of []
psychiatric and physical conditions [including opioid dependence]
rendered

her

unable

to

perform

the

duties

not

only

of

an

anesthesiologist, but also for a physician generally given the
access to opio[i]ds" during the period from July of 2004 through
the last date for which Dr. Land had access to the plaintiff's
medical records (December of 2007).

He noted that the plaintiff

"appeared to have numerous psychosocial stressors which would have
precipitated a relapse," including "severe and disabling back
pain."

Working full-time, he explained, "would clearly increase

[the plaintiff's] risk of relapse," and "[h]er strong attraction to
her drug of choice (Fentanyl) would distract her and preclude her
from conducting her essential duties."
A
assessments.

number

of

allied

professionals

agreed

with

these

For example, Dr. Milton Jay, Ed.D., wrote that the

plaintiff had a "moderate severity relapse risk profile" such that

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she did not have "functional capacity for returning to work" until
June of 2006.

Factors increasing her risk of relapse included

denial

dependence;

of

her

relapse

to

alcohol;

an

obsessive-

compulsive personality trait; and a history of major depression,
dysthymia, and post-traumatic stress disorder.
The overwhelming weight of this evidence indicates that
the plaintiff was, at least for some appreciable time after leaving
Talbott, at a very significant risk of relapse.

It might have been

possible for USIC to limit the period of disability by arguing that
this risk progressively diminished over the 36-month period.
USIC eschewed this possibility before the district court.
a

categorical

approach,

steadfastly

maintaining

that

But

It took
risk

of

relapse, whatever the degree, could not constitute a current
disability under the plan.

For example, its initial motion for

judgment on the record posited that "a mere risk of relapse into a
prior, self-controlled condition is not . . . [a] condition that
would preclude the plaintiff from working in her occupation."9
Even after the district court remanded for the specific
purpose

of

allowing

USIC

to

find

the

facts

relating

to

the

significance of the risk of relapse over time, see Colby I, 603 F.

9

To be sure, USIC observed at one point that the plaintiff
had failed to establish a "significant probability of relapse."
This observation, however, was little more than a throwaway,
unaccompanied by any attempt at either differential factfinding or
developed argumentation. We therefore regard the observation as
secondary to USIC's categorical approach.
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Supp. 2d at 246-47, USIC stuck to its guns.
some

additional

medical

evidence,

it

Entry ID: 5704689

While it collected

continued

to

view

that

evidence through the prism of its insistence that a risk of
relapse, no matter how grave, could not constitute a current
disability.
On appeal, USIC reiterates this single-minded insistence
but couches its argument in somewhat different phraseology.

It

says that the plaintiff did not provide "objective proof" of a
disability and cites Boardman v. Prudential Insurance Co., 337 F.3d
9 (1st Cir. 2003), for the proposition that, when such objective
proof

is

lacking,

a

denial

of

benefits

discretion, see id. at 16-17 n.5.

is

not

an

abuse

of

But this change in phraseology

does not herald a change in substance.

Cf. William Shakespeare,

Romeo and Juliet act 2, sc. 2 (1595) ("[T]hat which we call a rose
[b]y any other name would smell as sweet[.]"). USIC collapsed this
"objective proof" argument on itself when it noted that no such
objective proof could exist because the plaintiff "admittedly was
not actively addicted on or after November 20, 2004."

Appellant's

Br. at 26. USIC then reaffirmed its categorical approach asserting
that, "a doctor's opinion that there is a high probability of
relapse is not objective or even reliable evidence of a current
disability."

Appellant's Reply Br. at 13.

So viewed, USIC's

defense remains the same as the one that it offered in the district

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court: that a risk of relapse, even if significant, cannot ground
a claim for LTD benefits under the policy.
We readily acknowledge that the caselaw is mixed as to
the viability of such a defense. Compare, e.g., Stanford v. Cont'l
Cas. Co., 514 F.3d 354, 360 (4th Cir. 2008) (upholding insurer's
denial of LTD benefits to Fentanyl-addicted nurse anesthetist),
with, e.g., Kufner v. Jefferson Pilot Fin. Ins. Co., 595 F. Supp.
2d 785, 787-88 (W.D. Mich. 2009) (overturning insurer's denial of
continuing

LTD

anesthesiologist).

benefits

to

opioid-

and

alcohol-dependent

We conclude that the defense is not viable in

this case: given the language of the plan, categorically excluding
risk of relapse as a source of disability is simply unreasonable.
To begin, the language of the plan admits of no such
categorical bar.

It does not mention risk of relapse, let alone

exclude risk of relapse as a potential basis for a finding of
disability.

This silence is telling in an ERISA case because the

discretion of a plan administrator is cabined by the text of the
plan and the plain meaning of the words used.

See Harris v. Harv.

Pilgrim Health Care, Inc., 208 F.3d 274, 277-78 (1st Cir. 2000)
(explaining that "the plain language of an ERISA plan must be
enforced in accordance with its literal and natural meaning"
(internal quotation marks omitted)).

Plucking an exclusion for

risk of relapse out of thin air would undermine the integrity of an
ERISA plan.

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In an effort to turn dross into gold, USIC suggests that
the

plain

meaning

rule

actually

operates

in

its

favor.

It

emphasizes that the plan's language is crafted in the present
indicative tense: a claimant is disabled if a sickness "prevents"
her from performing one of the material duties of her regular
occupation.

Because a risk of relapse is a speculative future

possibility, USIC's thesis runs, the use of this present indicative
verb perforce excludes risk of relapse.
This alchemy is clever but unavailing.

Its primordial

flaw is that USIC has persistently refused to consider whether the
plaintiff was presently disabled through risk of relapse.

Rather,

it has assumed that she could not be disabled after her release
from Talbott because she was not still experiencing the effects of
opioid dependence.

This assumption carves out an exclusion from

coverage that is nowhere expressed in the plan itself.

In an ERISA

plan, exclusions from coverage are not favored, cf. B & T Masonry
Constr. Co. v. Pub. Serv. Mut. Ins. Co., 382 F.3d 36, 39 (1st Cir.
2004) (explaining that, under Massachusetts law, any ambiguity in
an insurance policy exclusion "must be construed strictly against
the insurer"), and the employer (or an insurance company that
stands

in

distinctly.

the

employer's

shoes)

must

spell

out

exclusions

Importing into an ERISA plan an unwritten proviso

categorically excluding risk of relapse as a basis for disability
undercuts a plan administrator's "higher-than-marketplace quality"

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obligation to use its discretion to process claims "'solely in the
interests of the participants and beneficiaries' of the plan."
Glenn, 554 U.S. at 115 (quoting 29 U.S.C. § 1104(a)(1)); see
Kufner, 595 F. Supp. 2d at 796-97.
Here, moreover, there is no principled basis for implying
the

exclusion

that

USIC

seeks

to

read

into

the

plan.

The

provisions of an ERISA plan must be read in a natural, commonsense
way.

See Harris, 208 F.3d at 277-78; Rodriguez-Abreu v. Chase

Manhattan Bank, 986 F.2d 580, 586 (1st Cir. 1993).

We think it is

a commonsense proposition that a substance-dependent individual's
risk of relapse can swell to a critical mass of disability.

See

Price v. Disability RMS, No. 06-10251, 2008 WL 763255, at *17 &
n.2, *21 (D. Mass. Mar. 21, 2008) (recognizing, in a case in which
a urologist was claiming LTD benefits, that a risk of relapse into
substance abuse might be so significant as to warrant a finding of
total disability).

The unwritten textual exclusion that USIC

advocates flies in the teeth of this commonsense proposition.
The

argument

for

an

unwritten

textual

exclusion

is

especially weak because risk of relapse is not a concept peculiar
to the realm of substance abuse and dependence.

It is a critical

aspect of many types of physical and mental disability. See, e.g.,
Lasser v. Reliance Standard Life Ins. Co., 344 F.3d 381, 391-92 &
n.12 (3d Cir. 2003) (finding arbitrary and capricious insurer's
denial of LTD benefits to orthopedic surgeon at risk of additional

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For example, an air traffic controller with a

seizure disorder may be totally disabled with respect to her
regular occupation because the radar illumination and the runway's
flickering lights put her at grave risk of convulsive episodes. It
is not that she is physically unable to go through the motions
required by an air traffic controller's job but, rather, that her
risk of relapse is prohibitively impairing and thus becomes, for
all practical purposes, a current disability.
Our conclusion that there is no basis for importing an
unwritten textual exclusion for risk of relapse into the plan finds
solid support in Judge Wilkinson's dissenting opinion in Stanford.
That case involved a very similar situation: the claimant, a nurse
anesthetist, suffered from substance addiction to Fentanyl, and LTD
benefits were initially paid.
Eventually,

however,

the

Stanford, 514 F.3d at 355-56.

parties

quarreled

over

whether

the

claimant actually had to undergo a relapse in order to maintain his
entitlement to benefits.
that he did.

Id.

See id. at 359.

The panel majority said

Judge Wilkinson disagreed; in his view,

requiring the claimant either "to relapse into addiction or lose
his benefits would [] thwart the very purpose for which disability
plans exist: to help people overcome medical adversity if possible,
and otherwise to cope with it."
dissenting).

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Id. at 362 (Wilkinson, J.,

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USIC's denial of LTD benefits is unreasonable in yet
another way: it creates a perverse incentive.

Declaring the

plaintiff fit for her usual occupation immediately upon her release
from Talbott would, if the plaintiff acted in accordance with that
declaration, not only put her at risk but also threaten to endanger
her patients.

As another court stated in an analogous case,

denying benefits to an anesthesiologist "unless and until . . . an
actual

relapse

of

[]

narcotics

addiction

[occurs]

.

.

.

is

untenable given the serious risk this poses to public health and
safety."

Kufner, 595 F. Supp. 2d at 796.

The court below

recognized this danger, see Colby I, 603 F. Supp. 2d at 243-44, and
so do we.
Let us be perfectly clear.

Our holding today is narrow.

It pivots on a fusion of the plain language of the plan and USIC's
all-or-nothing approach to its benefits determination.

USIC could

have written into the plan an exclusion for risk of relapse, but it
did not choose to do so.

Without such a written exclusion in

place, we believe that USIC acted arbitrarily and capriciously in
refusing to consider whether the plaintiff's risk of relapse
swelled to the level of a disability.

A benefits determination

cannot be "reasoned" when the plan administrator sidesteps the
central inquiry.10

10

The district court painted with a much broader brush,
holding that USIC had unlawfully discriminated between physical and
mental conditions. See Colby II, 818 F. Supp. 2d at 378-79. We
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We are keenly aware that the only court of appeals to
have considered this precise issue has — albeit in a two-to-one
decision — reached a contrary conclusion.
354.

See Stanford, 514 F.3d

We do not cavalierly part company with a sister circuit.

When all is said and done, however, we have "an obligation to
engage independently in reasoned analysis," In re Korean Air Lines
Disaster of Sept. 1, 1983, 829 F.2d 1171, 1176 (D.C. Cir. 1987);
and here, the desire to achieve uniformity must give way to the
need to ensure that plan administrators handle claims reasonably.
There is one loose end with respect to coverage.

The

plan provides, in part, that if a claimant "can perform the
material

duties

of

[her]

regular

occupation

with

reasonable

accommodation(s)," she "will not be considered disabled" (emphasis
in original).

In a letter to the plaintiff dated March 25, 2010,

USIC for the first time suggested that it would have been "a
reasonable work accommodation" for another healthcare professional
to monitor and supervise the plaintiff's exposure to opioids, thus
permitting the plaintiff to return to work.

This suggestion came

too late.
USIC denied continuing LTD benefits to the plaintiff in
July of 2005.

At that point, less than one-quarter of the 36-month

benefit period had elapsed.

USIC, however, did not mention a

possible accommodation until more than four years later.

take no view of this reasoning.
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In the

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interim, the district court had decided Colby I and remanded to the
plan administrator for reconsideration of a specific point. Having
failed to suggest the accommodation at a time when it might have
forestalled the accrual of benefits and allowed the plaintiff to
return to work, USIC cannot raise the reasonable accommodation
defense now.11

Cf. Valle-Arce v. P.R. Ports Auth., 651 F.3d 190,

200 (1st Cir. 2011) (explaining that employer's unwarranted "delay
may amount to a failure to provide reasonable accommodations" under
Americans with Disabilities Act); Glista v. Unum Life Ins. Co., 378
F.3d 113, 128-32 (1st Cir. 2004) (barring insurer from relying on
particular basis for denying LTD benefits that was not communicated
to claimant during internal review process).
This leaves the question of remediation.

The district

court awarded the plaintiff "retroactive LTD benefits for the
initial

thirty-six

month

period

benefits already received."

of

disability,

less

any

Colby II, 818 F. Supp. 2d at 384.

USIC questions this remedial order.
discretion.

her

Our review is for abuse of

Cook, 320 F.3d at 24.

A district court enjoys considerable latitude in the
selection of a remedy in an ERISA case.

Buffonge v. Prudential

Ins. Co., 426 F.3d 20, 31 (1st Cir. 2005); Cook, 320 F.3d at 24.

11

The district court precluded USIC from raising its proposed
reasonable accommodation on the ground that USIC did not comply
with its internal guidelines regarding the vetting of such
accommodations. See Colby II, 818 F. Supp. 2d at 383. We do not
reach this issue.
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The retroactive reinstatement of benefits is often an appropriate
outcome.

See, e.g., Cook, 320 F.3d at 24.

Sometimes, however, it

may be more appropriate for the court to defer to the plan
administrator and remand for further proceedings.
Buffonge, 426 F.3d at 31-32.

See, e.g.,

The choice of remedy depends on the

circumstances of the particular case.
In this instance, the district court did not abuse its
discretion in awarding retroactive benefits.
remanded the case once, to no avail.

It already had

While a court should be

respectful of a plan administrator's prerogatives, it is not
obliged to make an endless series of remands.

Cf. Cook, 320 F.3d

at 24 (explaining that "the variety of situations is so great as to
justify considerable discretion on the part of the district court"
in

deciding

benefits).

between

remand

and

retroactive

reinstatement

of

Here, the court afforded USIC an opportunity to cure

the defects

in

its

original

determination.

Given

that

USIC

squandered that opportunity, we cannot fault the court's subsequent
decision to take the bull by the horns and bring this longfestering matter to a conclusion.
The amount of benefits scarcely can be questioned.

On

this record, awarding a full 36 months of benefits flowed naturally
from

USIC's

all-or-nothing

defense

of

the

case.

USIC

has

consistently sought to construct a dichotomy, insisting that the
plaintiff was disabled while she was actively abusing Fentanyl and

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receiving inpatient care, but not disabled thereafter. In light of
USIC's unfounded position and the medical evidence showing a
significant risk of relapse, we cannot say that the district court
abused its discretion in awarding a full 36 months of LTD benefits.
There is one more leg to our journey. The district court
awarded the plaintiff attorneys' fees (including costs) because she
prevailed on her ERISA claim.

See Colby II, 818 F. Supp. 2d at

385; Colby I, 603 F. Supp. 2d at 246-47; see also Colby v. Assurant
Emp. Benefits, 635 F. Supp. 2d 88, 100 (D. Mass. 2009) (quantifying
interim fee award).

USIC contests the fee award.

By statute, the district court has discretion to award
attorneys' fees to a prevailing plaintiff in an ERISA benefitdenial case. See 29 U.S.C. § 1132(g)(1). USIC's disagreement with
the fee award is premised exclusively on its insistence that the
underlying award of benefits was arbitrary and capricious. Because
we have upheld the underlying benefits determination, see text
supra, we reject USIC's challenge to the fees.
III.

CONCLUSION
We need go no further. For the reasons elucidated above,

we uphold the judgment of the district court.

Affirmed.

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