Feher v. UNUM
Filing
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ORDER granting 15 Motion to Dismiss. See attached Ruling and Order for further details. Signed by Judge Robert N. Chatigny on 12/18/14. (Reardon, C)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KELLY FEHER,
Plaintiff,
v.
UNUM LIFE INSURANCE COMPANY
OF AMERICA,
Defendant.
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Case No. 3:14-CV-334 (RNC)
RULING AND ORDER
This is an action under the Employee Retirement Income
Security Act ("ERISA"), 29 U.S.C. §§ 1001, et seq., challenging
the denial of a claim for short term disability benefits.
The
defendant has moved to dismiss the action on the grounds that it
is untimely and the plaintiff failed to exhaust an administrative
appeal procedure before commencing litigation.
I agree that
dismissal is required as a matter of law due to plaintiff’s
failure to file an administrative appeal and grant the motion on
this basis without addressing defendant’s other arguments.
I. Background
The complaint, and documents referenced in the complaint,
show the following.
Plaintiff Kelly Feher is a former employee
of CVS Caremark Corporation, which maintains a short term
disability plan covered by ERISA.
The plan is underwritten and
insured by the defendant, Unum Life Insurance Company of America
("Unum").
In the summer of 2010, the plaintiff became ill and
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was diagnosed with Lyme Disease.
her unable to work.
Her symptoms worsened rendering
She applied for benefits under the plan
claiming that she was disabled as of November 11, 2010.
Under the terms of the plan, a person is not eligible to
receive benefits until she experiences a period of continuous
disability lasting seven days, which the plan refers to as the
"elimination period."
The plan requires that a written proof of
claim be filed no later than 90 days after the elimination
period.
In the event of a claim denial, the plan requires that
an appeal be submitted in writing within 180 days of the
claimant’s receipt of the denial letter.
The plan requires that
a claimant exhaust all administrative appeal procedures before
bringing suit to challenge the denial of a claim.
On December 3, 2010, Unum notified the plaintiff that it was
unable to render a decision on her claim because she had not
provided an "Attending Physician Statement."
Plaintiff responded
by submitting the necessary form, which reached Unum on February
14, 2011.
Unum denied plaintiff’s claim three weeks later in a
letter dated March 7, 2011.
The letter cited a lack of
documented findings of symptoms showing an impairment in function
causing an inability to work.
The letter informed plaintiff about the “next steps
available to [her].”
with the decision?
The document stated, "What if I disagree
If you disagree with our decision you have
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the right to request that we reconsider our decision.
Regardless
of whether you ask for reconsideration, you have the right to
appeal the decision."
With regard to reconsideration, the letter explained that if
the plaintiff had new information she wanted Unum to consider,
she could submit the new information for review by the same
Disability Benefits Specialist who rendered the initial decision,
in which case the claim denial would be reconsidered by that
person in light of the new information.
The letter pointed out
that a request for reconsideration should be submitted “as soon
as possible” to enable Unum to complete its review before the end
of the 180-day period for requesting an appeal of the claim
denial.
The letter stated:
If you choose to submit new information for our review
(which is a request for reconsideration), and later
decide to appeal the claim decision, you must send your
appeal within the 180 days from the date you receive
this letter (not from the date you received the letter
about the reconsideration decision)(emphasis in the
original).1
With regard to the appeal process, the letter explained that
if plaintiff wanted to have the claim decision reviewed by an
1
The plan itself also provided information about appeals,
including the 180-day limitation period. See ECF No. 16-2 at 1617.
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Appeals Specialist, she would need to submit a letter outlining
the basis for her disagreement with the decision along with any
additional information supporting her appeal.
This section of
the letter repeated the admonition that an appeal had to be
submitted within 180 days from the date plaintiff received the
denial letter.
The letter was signed by Sharon Thayer, Lead
Disability Benefits Specialist.
Because the claim was denied on March 7, 2011, plaintiff’s
window to appeal was open until September 3, 2011.
On September
1, 2011, plaintiff’s counsel faxed a letter to the attention of
Ms. Thayer.
The letter stated, “I am writing along the lines you
described in your letter to Ms. Feher dated March 7, 2011,
specifically to include addition[al] documentation of her
conditions and to comment on the positions taken by Unum that
suggest that she doesn’t qualify for the subject benefits.”
Enclosed with the letter were medical records.
The letter asked
Unum to “take a fresh look at the case, which, after all, is now
six (6) months beyond your last review and has followed a
persistent medical pattern - and make appropriate findings that
Mrs. Fehrer qualifies for benefits.”
Ms. Thayer responded by letter dated September 7, 2011.
letter stated, “Thank you for sending additional information
The
about your Short Term Disability claim.
We have reviewed this
information and it does not change our original decision.”
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Though the time to appeal had elapsed, Ms. Thayer stated that an
appeal would be permitted because reconsideration had been sought
so late.
Plaintiff did not appeal.
She filed this action on
March 14, 2014.
II. Discussion
Courts "have uniformly required that participants [in ERISA
plans] exhaust internal review before bringing a claim for
judicial review."
Heimeshoff v. Hartford Life & Acc. Ins. Co.,
134 S. Ct. 604, 610 (2013).
Exhausting administrative remedies
requires a claimant to pursue an available administrative appeal.
Berkinow v. Xerox Corp. Long-Term Disability Income Plan, 517 F.
Supp. 2d 646, 652 (W.D.N.Y. 2007).
The parties agree that the
plan required plaintiff to submit an appeal within 180 days of
her receipt of the March 7, 2011 letter denying her application
for benefits.
They further agree that no appeal was filed.
No. 21, at 4.
This, Unum argues, "would appear to close the
matter."
I agree.
Id.
ECF
Plaintiff urges that she should not be penalized for failing
to appeal because she was confused about how to proceed.
The
source of the trouble, she contends, was the availability of
reconsideration in addition to an appeal.
The Court recognizes
that a potential for confusion may exist when the deadline for
filing an appeal is unaffected by the filing of a request for
reconsideration.
Even so, there is no ambiguity in the terms of
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the plan or the denial letter that could be construed against
Unum in the context of this case to excuse plaintiff’s failure to
appeal.
The section of the plan dealing with appeals states
unequivocally that an appeal “must be sent to Unum within 180
days of your denial notice.”
ECF No. 16-2, at 17.
Moreover, the
denial letter specifically stated that if plaintiff requested
reconsideration, and later decided to appeal, the 180-day period
would run from the date of her receipt of the denial letter,
rather than the date of her receipt of the decision on
reconsideration.
Together, the plan and the letter provided
adequate guidance regarding the operation of the 180-day
deadline.
In addition, it is undisputed that Unum encouraged plaintiff
to appeal the decision on reconsideration, notwithstanding the
expiration of the 180 day period.
Ms. Thayer stated that an
appeal probably would be permitted because the request for
reconsideration had been filed so late in the 180 day period.
For whatever reason, plaintiff did not take advantage of that
opportunity.
In these circumstances, plaintiff’s failure to
appeal cannot be attributed to Unum.
Plaintiff also argues that an appeal would have been
futile.
To avoid dismissal on this ground, plaintiff must make
"a clear and positive showing that pursuing available
administrative remedies would be futile."
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Davenport v. Harry N.
Abrams, 249 F.3d 130, 133 (2d Cir. 2001).
The initial denial of
her claim cannot establish the futility of an administrative
appeal.
Siemionko v. Bldg. Serv. 32B-J Ben. Funds, No. 07 Civ.
1548, 2009 WL 3171955, at *6 (E.D.N.Y. Sept. 30, 2009).
Rather,
cases finding futility generally involve either bad faith on the
part of the insurer or an unambiguous statement from the insurer
indicating that its denial is final.
See, e.g., Paese v.
Hartford Life & Acc. Ins. Co., 449 F.3d 435, 449 (2d Cir. 2006)
("This [futility] argument finds considerable support in
Hartford's March 20 letter to Paese containing its final
decision, which, as quoted above, stated that Hartford's 'claim
decision is now final' and informed Paese that he had 'exhausted
any administrative remedies available to [him] under the
policy.'"); Greifenberger v. Hartford Life Ins. Co., 131 Fed.
Appx. 756, 759 (2d Cir. 2005).
Plaintiff’s futility argument does not provide the clear and
positive showing required to excuse her failure to exhaust.
She
identifies no bad faith and no statement from Unum suggesting
that its initial claim decision was final.
Careful review of the
record discloses no statement that could be interpreted by
plaintiff as an indication that the initial claim decision was
final.
In fact, the March 7, 2011 letter expressly invited her
to file an appeal and made it clear that an Appeals Specialist,
not the Disability Benefits Specialist who issued the denial,
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would review her claim.
ECF No. 16-3, at 4.
Plaintiff argues that if she had appealed, the Appeals
Specialist would have reviewed the very same materials presented
to the Disability Benefits Specialist.
Plaintiff characterizes
this method of review as "[not] even an appeal," but "simply a
parallel finding by someone else in the same claims office,
although located in a physically different place."
at 8.
ECF No. 19,
Plaintiff’s argument must be rejected because the appeal
process was not simply duplicative of the initial claim decision
process.
As explained in the denial letter, the appeal process
gave plaintiff an opportunity to (1) submit a letter explaining
the basis for her disagreement with the claim decision, (2) along
with information and documents supporting her appeal, (3) for
consideration by an Appeals Specialist.
These features of the
appeal process served to distinguish it from the initial claim
decision process.
The Court cannot say that the appeal process
was so flawed as to render any appeal futile.
III. Conclusion.
Accordingly, the motion to dismiss is hereby granted.
So ordered this 18th day of December 2014.
/s/
Robert N. Chatigny
United States District Judge
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