Wittmann v. UNUM Life Insurance Company of America

Filing 98

ORDER AND REASONS: For the following reasons, the plaintiff's 87 motion is GRANTED, and the defendant's 88 motion is DENIED as set forth in document. Signed by Judge Martin L.C. Feldman on 10/31/2018. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANNE WITTMANN

CIVIL ACTION

v.

NO. 17-9501

UNUM LIFE INSURANCE
COMPANY OF AMERICA

SECTION “F”
ORDER AND REASONS

Before the Court are two motions: (1) the plaintiff’s motion
to strike from the administrative record all documents generated
after September 22, 2017; and (2) the defendant’s motion for
partial summary judgment that the documents generated as a result
of plaintiff’s post-litigation administrative appeal are part of
the administrative record, or in the alternative, motion for
summary

judgment

dismissing

plaintiff’s

exhaust administrative remedies.

suit

for

failure

to

For the following reasons, the

plaintiff’s motion is GRANTED, and the defendant’s motion is
DENIED.
Background
This

ERISA

lawsuit

challenges

the

denial

of

disability

benefits under a group benefits plan.
Anne Wittmann is a participant to a long-term disability
insurance plan through her employment as an attorney with Baker,
Donelson, Bearman, Caldwell, Berkowitz PC.

Unum Life Insurance

Company of America serves as the underwriter of the Plan and has
been

delegated

the

discretionary

1

authority

to

make

benefit

determinations.

Suffering

from

fibromyalgia,

working as an attorney on December 31, 2013.

Wittmann

ceased

She then filed a

claim for long-term disability benefits under the Plan in April of
2014, which Unum denied by letter dated October 3, 2014. 1

That

letter also advised Wittmann of her right to request an appeal,
which she exercised on January 26, 2015.

By letter dated May 29,

2015, Unum denied Wittmann’s appeal and invited her to submit
additional information in support of her claim. 2 Unum acknowledged
receipt of Wittmann’s request for a second appeal on June 23, 2015,
and ultimately denied that appeal by letter dated July 20, 2015. 3
In that letter, Unum also advised:
Unum Life Insurance Company of America has
completed our review of your appeal.
No
further review is available and your appeal is
now closed.
. . .
If you disagree with this decision, you have
a right to bring a civil suit under section
502(a) of the Employee Retirement Income
Security Act of 1974.
1

In filing her April 2014 claim, Wittmann described her medical
condition as “unknown – other than fibromyalgia and pericarditis,”
and identified her first symptoms as “chest pain, SOB, muscle/joint
pain, fatigue, lightheaded.” In its October 3, 2014 Claim Denial
Letter, Unum stated that there was “no evidence of any tender point
testing to support a diagnosis of Fibromyalgia.”
2 In denying Wittmann’s first administrative appeal, Unum noted
that although Wittman “may have fibromyalgia based on reports of
widespread unexplained pain,” those reports “are out of proportion
to the physical exams, physician observations, diagnostic tests
and lab studies.”
3 In denying Wittman’s second administrative appeal, Unum reasoned
that a review of new information, including neuropsychological
test results, did not change the prior appeal decision.
2

Before filing suit, Wittmann submitted to Unum a disability
determination by the Social Security Administration and invited
Unum to reconsider its decision once again.

By letter dated

January 24, 2017, Unum granted Wittmann mental illness disability
benefits from June 30, 2014 through June 30, 2016 and stated that
it would investigate further to determine her entitlement to
benefits beyond 24 months for a disability unrelated to mental
illness. 4

In response, plaintiff’s counsel provided Unum with

updated medical records from Wittmann’s treating psychiatrist, a
letter from her massage therapist, and office notes from one of
her physicians.
plaintiff’s

By letter dated July 31, 2017, Unum notified

counsel

that

Wittmann

was

not

entitled

to

such

additional benefits because there was no evidence of physical or
organic medical problems that would preclude her from being able
to perform her sedentary occupation as an attorney after June 30,
2016. The letter also advised that, pursuant to the Plan, Wittmann
was required to file an administrative appeal within 180 days if
she disagreed with the decision.
On September 22, 2017, Wittmann sued Unum for the denial of
her claim for physical disability benefits under her long-term
disability plan, pursuant to Section 502(a)(1)(B) of the Employee

4

Pursuant to the Plan, mental illness benefits are limited to 24
months, while physical disability benefits are payable through
expected retirement. Although Wittmann experiences depression,
she has never claimed to be disabled due to depression.
3

Retirement Income Act of 1974.

29 U.S.C. § 1132(a)(1)(B).

Four

months later, by letter dated February 25, 2018, Wittmann’s counsel
requested an administrative appeal of Unum’s July 2017 decision.
Because the request was made within the requisite 180-day appeal
period, Unum agreed to consider the appeal; it then filed a motion
to dismiss this lawsuit for failure to exhaust administrative
remedies, or in the alternative, to stay the proceedings pending
the exhaustion of administrative remedies.
the

opportunity

to

consider

that

motion,

Before the Court had
Unum

completed

its

administrative review, rendering the motion moot. 5
About a month later, Unum filed a motion to submit the
“disputed administrative record” under seal, which this Court
granted in its Order dated May 16, 2018.

In that motion, Unum

noted that Wittmann objects to the inclusion in the administrative
record of any documents generated after her complaint was filed on
September

22,

administrative

2017.

Wittmann

record

and

now

this

moves

Court’s

to

strike

record

from

those

the

post-

litigation documents, and Unum moves for partial summary judgment
that

all

documents

associated

with

Wittmann’s

post-litigation

administrative appeal are part of the administrative record, or in

5

In considering the post-lawsuit administrative appeal, Unum
retained an independent rheumatologist to review new medical
information submitted by Wittmann. Nonetheless, Unum upheld its
determination that Wittmann was not entitled to benefits exceeding
24 months for a disability unrelated to mental illness.
4

the alternative, for summary judgment dismissing Wittmann’s suit
for failure to exhaust administrative remedies.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

A genuine

dispute of fact exists only “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion.

See id.

In this regard,

the non-moving party must do more than simply deny the allegations
raised by the moving party.

See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).

Rather, he

must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.

Id.

Hearsay evidence and

unsworn documents that cannot be presented in a form that would be
admissible

in

evidence

opposing evidence.

at

trial

do

not

qualify

as

competent

Martin v. John W. Stone Oil Distrib., Inc.,

819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).
5

“[T]he

nonmoving

conclusory

party

allegations,

cannot

defeat

summary

unsubstantiated

scintilla of evidence.”

judgment

assertions,

or

with

only

a

Hathaway v. Bazany, 507 F.3d 312, 319

(5th Cir. 2007)(internal quotation marks and citation omitted).
Ultimately, “[i]f the evidence is merely colorable . . . or is not
significantly

probative,”

summary

judgment

is

appropriate.

Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are
improper as summary judgment evidence.”).
II.
ERISA gives a plan participant standing to bring a civil
action “to recover benefits due to him under the terms of his plan
[or] to enforce his rights under the terms of the plan . . . .”
29 U.S.C. § 1132(a)(1)(B).
A.
Fifth Circuit precedent instructs that “claimants seeking
benefits

from

an

ERISA

plan

[must]

first

exhaust

available

administrative remedies under the plan before bringing suit to
recover benefits.”

Crowell v. Shell Oil Co., 541 F.3d 295, 308

(5th Cir. 2008) (quoting Bourgeois v. Pension Plan for the Emps.
of Santa Fe Int’l Corps., 215 F.3d 475, 479 (5th Cir. 2000)).
The
policies
underlying
‘the
exhaustion
requirement are to: (1) uphold Congress’
desire that ERISA trustees be responsible for
their actions, not the federal courts; (2)
provide a sufficiently clear record of
6

administrative action if litigation should
ensue; and (3) assure that any judicial review
of fiduciary action (or inaction) is made
under the arbitrary and capricious standard,
not de novo.’
Meza v. Gen. Battery Corp., 908 F.2d 1262, 1279 (5th Cir. 1990)
(quoting Denton v. First Nat’l Bank of Waco, 765 F.2d 1295, 1300
(5th Cir. 1985)).

Although the exhaustion requirement is not

specifically required by ERISA, it “has been uniformly endorsed by
the courts in keeping with Congress’ intent in enacting ERISA.”
Hall v. Nat’l Gypsum Co., 105 F.3d 225, 231 (5th Cir. 1997).
The exceptions to the exhaustion requirement are limited: a
claimant may be excused from the exhaustion requirement if he shows
either that pursuing an administrative remedy would be futile or
that

he

remedies.

has

been

denied

meaningful

access

to

administrative

Denton, 765 F.2d at 1302 (futility exception); Meza,

908 F.2d at 1279 (meaningful access exception). “To show futility,
Plaintiffs must show that the review was conducted with ‘hostility
or bias’ against the claimants.”

Ctr. for Restorative Breast

Surgery, L.L.C. v. Blue Cross Blue Shield of La., No. 11-806, 2016
U.S. Dist. LEXIS 105458, at *31 (E.D. La. Aug. 10, 2016) (Morgan,
J.) (quoting McGowin v. Manpower Int’l, Inc., 363 F.3d 556, 559
(5th Cir. 2004)).

In a similar vein, “[c]onclusory allegations

are insufficient to support an exception to the exhaustion rule
based on a denial of meaningful access.”

7

Id. at *32 (citing

McGowin, 363 F.3d at 560).

Accordingly, “these exceptions apply

. . . only in extraordinary circumstances.”

Id. at *30.

Where the proper procedure has not been followed for filing
a claim, or administrative remedies have not been exhausted, the
appropriate remedy is dismissal of the complaint.

See Medina v.

Anthem Life Ins. Co., 983 F.2d 29, 33 (5th Cir. 1993).
B.
In reviewing a plan administrator’s benefits determination
under

an

ERISA

plan,

administrative record.”

the

Court

“is

constrained

to

the

Hamburg v. Life Ins. Co. of N. Am., No.

10-3071, U.S. Dist. LEXIS 841142, at *3 (E.D. La. Aug. 1, 2011)
(Feldman, J.).
consists

of

As a general rule, “the administrative record
relevant

information

made

available

to

the

administrator prior to the complainant’s filing of a lawsuit and
in a manner that gives the administrator a fair opportunity to
consider it.”

Vega v. Nat’l Life Ins. Servs., 188 F.3d 287, 300

(5th Cir. 1999) (en banc), abrogated on other grounds by Metro.
Life Ins. Co. v. Glenn, 554 U.S. 105 (2008).

Accordingly, a

claimant can supplement the administrative record by “submit[ting]
additional information to the administrator . . . and request[ing]
the administrator to reconsider his decision.”

Id. at 300.

But

“if supplementation of the administrative record is to be permitted
at all, it must take place before a claimant files suit.”

Hamburg,

No. 10-3071, U.S. Dist. LEXIS 841142, at *5; see also Roig v. Ltd.
8

Long Term Disability Program, No. 99-2460, 2000 U.S. Dist. LEXIS
11379, at *22-23 (E.D. La. Aug. 4, 2000) (Vance, J.) (“To approve
the post-suit, extra-Plan review agreed to here would permit ERISA
plan administrators to drag their feet until they are sued and
then allow them to belatedly bolster the administrative record in
their favor.”).
challenge

a

Nonetheless, where a claimant files suit to

decision

for

which

she

has

not

exhausted

her

administrative remedies, a post-litigation administrative appeal
properly forms part of the administrative record.

See Roig v.

Ltd. Long Term Disability Program, No. 03-1059, U.S. Dist. LEXIS
2764, at *19-21 (E.D. La. Feb. 20, 2004) (Vance, J.).
III.
Wittmann moves to strike from the administrative record all
documents generated after September 22, 2017, the date on which
she filed suit, while Unum seeks partial summary judgment that the
documents

generated

as

a

result

of

the

post-litigation

administrative appeal are part of the administrative record, or in
the alternative, summary judgment dismissing the suit for failure
to exhaust administrative remedies.

The Court first considers the

parties’ contentions as to their competing motions about the
administrative record.
Wittmann
Unum’s

contends

October

2014,

that,
May

because

2015,

and

this

lawsuit

July

2015

challenges

denials,

the

administrative record for purposes of considering those decisions
9

closed as of the date she filed suit.

To support her contention

that the administrative record is limited to relevant information
presented to the plan administrator before the claimant files suit,
she invokes Vega v. Nat’l Life Ins. Servs., 188 F.3d 287, 300 (5th
Cir. 1999) (en banc); Hamburg v. Life Ins. Co. of N. Am., No. 103071, U.S. Dist. LEXIS 841142, at *5 (E.D. La. Aug. 1, 2011)
(Feldman, J.); and Roig v. Ltd. Long Term Disability Program, No.
99-2460, 2000 U.S. Dist. LEXIS 11379, at *22-23 (E.D. La. Aug. 4,
2000) (Vance, J.).

Wittmann places special emphasis on Roig, No.

99-2460, 2000 U.S. Dist. LEXIS 11379 (“Roig I”), in which another
Section of this Court addressed a plan administrator’s attempt to
include within the administrative record two reports of a medical
expert who was not retained until after the plaintiff filed suit.
In declining to consider those post-suit reports as part of the
administrative record, Judge Vance, in Roig I, reasoned that to do
so “would permit ERISA plan administrators to drag their feet until
they

are

sued

and

then

allow

them

to

administrative record in their favor.”

belatedly

bolster

Id. at *23.

the

Wittmann

contends that this is exactly what Unum is attempting to do here.
Although she filed suit on September 22, 2017, Unum has nonetheless
included within the administrative record, filed under seal with
this Court, documents generated months after that date.

Most

notably, she submits, Unum seeks to include a “peer review” report
of Dr. Benjamin Kretzmann, its retained rheumatologist, which
10

concludes that years old diagnoses other than fibromyalgia – such
as hysterectomy, appendectomy, and cervical discectomy – could
somehow explain Wittmann’s symptoms of diffuse joint and muscle
pain, severe fatigue, and cognitive problems.

Wittmann maintains

that this report, dated February 22, 2018, is a self-serving, longafter-the-fact attempt by Unum to justify its October 3, 2014
denial of Wittmann’s claim for long-term disability benefits.
Accordingly, Wittmann argues, Vega and Roig I instruct that this
report, as well as all other documents dated or generated after
September 22, 2017, must be excluded from the administrative record
to be considered by this Court.
Unum takes issue with Wittmann’s contention that this lawsuit
challenges the October 3, 2014 denial of her claim for long-term
disability benefits.

In particular, Unum contends that this

argument is contradicted by the fact that: (1) the October 2014
decision that Wittmann was not entitled to benefits under the
policy was overturned by Unum, and thus negated, on January 24,
2017; and (2) her January 25, 2018 request for an administrative
appeal clearly stated “On behalf of Anne D. Wittmann I submit this
appeal from the July 31, 2017 denial of claim for long term
physical disability benefits by Unum.”

Accordingly, Unum submits

that the ultimate question before the Court is whether Unum abused
its discretion in determining that Wittmann was not entitled to

11

additional benefits beyond June 30, 2016 for a disability unrelated
to mental illness.
Unum further contends that Wittmann’s reliance on Roig I is
misplaced.

In Roig I, Unum submits, the plaintiff filed suit

challenging MetLife’s denial of her claim for long-term disability
benefits, after she had exhausted her administrative remedies.
Roig, No. 99-2460, 2000 U.S. Dist. LEXIS 11379.

In that case, the

plaintiff and the plan administrator, which had delegated to
MetLife

the

discretionary

authority

to

make

benefits

determinations, agreed that the administrator would conduct an
additional administrative review of the plaintiff’s claim.
*14-23.

Id. at

The district court rejected the parties’ attempt to

supplement the administrative record with an additional postlitigation administrative review, reasoning, in part, that it was
not authorized by the terms of the plan.

Id. at *19-23.

The

district court then awarded the plaintiff initial benefits but
denied long-term disability benefits because the record lacked
evidence to support them.

Roig v. Ltd. Long Term Disability

Program, 275 F.3d 45, *2 (5th Cir. 2001) (per curiam).

On appeal,

the Fifth Circuit remanded the case to the district court to remand
to the plan administrator to determine entitlement to long-term
disability

benefits,

considered that issue.

because

the

Id. at *4.

plan

administrator

had

not

On remand, MetLife denied the

long-term disability claim, and the plaintiff requested a formal
12

appeal.

Roig v. Ltd. Long Term Disability Program, No. 03-1059,

U.S. Dist. LEXIS 2764, at *6 (E.D. La. Feb. 20, 2004) (Vance, J.).
But before expiration of the time within which MetLife was required
to decide the appeal, the plaintiff filed another suit (Roig II)
without exhausting her administrative remedies.

Id. at *6-7, 17.

MetLife completed its administrative review of the claim after
suit was filed, and the plaintiff sought to exclude documents
generated

during

that

review

process

on

the

ground

that

administrative record was complete once suit was filed.
*7.

the

Id. at

The Roig II Court disagreed, holding that the administrative

record

consisted

administrative

of

review

all

documents

process,

which

generated
was

not

during

complete

MetLife rendered its decision on the administrative appeal.

the
until
Id.

at *17-21.
Unum contends that, here, unlike in Roig I and similar to
Roig II, Wittmann filed suit before exhausting her administrative
remedies.

Accordingly,

Unum

submits

that

the

administrative

record necessarily includes all documents generated in connection
with the appeal of the July 31, 2017 decision that was not rendered
until after her unauthorized suit had been filed.
In a nutshell, Wittmann notes that the facts of this case are
more similar to those presented in Roig I, while Unum argues that
this case more closely resembles Roig II.

Reading Roig I and Roig

II together, it seems to this Court that doctrinally whether or
13

not a plaintiff had exhausted her administrative remedies before
filing suit informs the scope of the administrative record.
Accordingly,
administrative

to

record

determine

the

here,

Court

the

proper

scope

must

consider

of

the

whether

Wittmann exhausted her administrative remedies prior to filing
suit.
Plan

The Court therefore turns to the relevant provisions of the
regarding

the

administrative

appeal

process.

provides:
APPEAL PROCEDURES
You have 180 days from the receipt of notice
of an adverse benefit determination to file an
appeal. Requests for appeals should be sent
to the address specified in the claim denial.
A decision on review will be made not later
than 45 days following receipt of the written
request for review. If Unum determines that
special circumstances require an extension of
time for a decision on review, the review
period may be extended by an additional 45
days (90 days in total). Unum will notify you
in writing if an additional 45 day extension
is needed.
. . .
The
review
of
the
adverse
benefit
determination will take into account all new
information, whether or not presented or
available at the initial determination.
No
deference will be afforded to the initial
determination.
The review will be conducted by Unum and will
be made by a person different from the person
who made the initial determination and such
person will not be the original decision
maker’s subordinate.
. . .
14

The

Plan

Unless there are special circumstances, this
administrative
appeal
process
must
be
completed before you begin any legal action
regarding your claim.
DISCRETIONARY ACTS
The
Plan,
acting
through
the
Plan
Administrator, delegates to Unum and its
affiliate Unum Group discretionary authority
to make benefit determinations under the Plan.
Unum and Unum Group may act directly or
through their employees and agents to further
delegate their authority through contracts,
letters or other documentation or procedures
to other affiliates, persons or entities.
Benefit determinations include determining
eligibility for benefits and the amount of any
benefits, resolving factual disputes, and
interpreting and enforcing the provisions of
the Plan. All benefit determinations must be
reasonable and based on the terms of the Plan
and the facts and circumstances of each claim.
Once you are deemed to have exhausted your
appeal rights under the Plan, you have the
right to seek court review under Section
502(a) of ERISA of any benefit determinations
with which you disagree.
(Emphasis added).
When read together, these provisions provide that a claimant
must submit a written request for an appeal within 180 days from
receipt of notice of an “adverse benefit determination” and that
Unum must render a decision on review within 45 days (or 90 days,
if an extension is required) following receipt of the request.
Thus, a claimant exhausts her administrative remedies by timely
filing

a

written

request

for

an

15

administrative

appeal

after

receiving notice of an adverse benefit determination and waiting
up to 45 days, or 90 days, for Unum to render a decision on appeal.
However, in practice, Unum appears to employ a two-level
appeal procedure.

In this case, Unum denied Wittmann’s claim for

long-term disability benefits by letter dated October 3, 2014, and
advised

her

of

her

“right

to

request

an

appeal.”

Wittmann

exercised that right, after which Unum again denied her appeal on
May 29, 2015 and invited her to submit additional information in
support of her claim.

Then, in denying her second appeal by letter

dated July 20, 2015, Unum advised Wittmann that the review of her
appeal

was

“completed,”

that

“[n]o

further

review

[wa]s

available,” and that she could “bring a civil suit” under ERISA if
she disagreed with the decision.

Accordingly, it appears that

Wittmann’s administrative remedies were deemed exhausted under the
Unum Plan as of July 20, 2015.
But the parties spotlight the implications of Unum’s January
24, 2017 decision to grant Wittmann mental illness disability
benefits

and

undertake

further

evaluation

regarding

her

entitlement to benefits after June 30, 2016 based on a disability
unrelated to mental illness.

Wittmann contends that, in doing so,

Unum rejected the opportunity to cure its prior erroneous denial
of her claim for long-term disability benefits based on a physical
disability.

Unum counters that it overturned its prior benefit

determination,

which

reversed

that
16

decision

and

unilaterally

renewed

the

claims-handling

process

and

appeal

procedure.

Accordingly, Unum submits, its July 31, 2017 decision that Wittmann
was not entitled to physical disability benefits after expiration
of her mental disability benefits constitutes an “initial” denial,
which she was required to administratively appeal before pursuing
judicial review.
In response, Wittmann asserts that Unum did not overturn its
October 3, 2014 decision denying her claim for long-term disability
benefits based on a physical condition.

Instead, it granted her

mental illness benefits and initiated a separate review of whether
she could recover benefits not resulting from mental disability as
of June 30, 2016 and beyond.

As such, she maintains that Unum’s

July 31, 2017 decision that she was not entitled to additional
benefits beyond June 30, 2016 has no bearing on her ability to
bring a civil action challenging Unum’s October 3, 2014 denial of
her claim for physical disability benefits, as she had long since
exhausted
decision.

her

administrative

remedies

with

regard

to

that

The Court agrees that Wittmann’s right to challenge

Unum’s October 3, 2014 decision vested on July 20, 2015, as
confirmed by Unum’s letter bearing that date.
Unum’s attempt to analogize the facts of this case to Roig
II,

in

which

another

Section

of

this

Court

allowed

a

plan

administrator to introduce into the administrative record evidence
concerning an administrative appeal conducted after institution of
17

a premature lawsuit, is unpersuasive. Contrary to Unum’s position,
this case does not involve litigation of a matter that was still
subject to administrative review under the Plan at the time in
which it was instituted.

Rather, this lawsuit challenges Unum’s

October 3, 2014 denial of Wittmann’s claim for long-term disability
benefits, for which Wittmann exhausted her administrative remedies
on

July

20,

2015,

following

administrative appeals.

no

less

than

two

rounds

of

Moreover, Unum points to no case law to

support the proposition that a plan administrator can reset the
administrative procedural clock after administrative remedies have
been exhausted or require a claimant to exhaust additional rounds
of administrative appeals prior to filing suit.

And the Court is

unable to locate such case literature either. 6

Thus, guided by

the common sense general rule articulated in Vega, Roig I, and
Hamburg, the Court finds that the administrative record in this
matter closed on September 22, 2017, the date on which Wittmann
filed this lawsuit. 7

Accordingly, for the foregoing reasons, IT

IS ORDERED: that the plaintiff’s motion is hereby GRANTED, and the

6

Therefore, as of July 20, 2015, Wittmann had exhausted her
administrative remedies for Unum’s October 3, 2014 denial of her
claim for long-term disability benefits based on a physical
disability – the decision that Wittmann challenges in this lawsuit.
Accordingly, Wittmann was not required to appeal Unum’s July 31,
2017 determination that she was not entitled to additional benefits
beyond June 30, 2016 for a disability unrelated to mental illness,
in order to challenge Unum’s October 3, 2014 decision.
7 The admonition in Roig I about the administrator’s delay seems
possibly applicable here also.
18

defendant’s motions are DENIED.

All documents dated or generated

after September 22, 2017 are excluded from the administrative
record and will not be considered by this Court in determining
whether Unum abused its discretion in denying Wittmann’s claim for
long-term disability benefits.

New Orleans, Louisiana, October 31, 2018
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

19