Kamerer v. UNUM Life Insurance Company of America et al

Filing 86

District Judge Timothy S. Hillman: MEMORANDUM AND ORDER entered granting in part and denying in part 73 Motion for Discovery. Plaintiff is permitted to take a 2-hour deposition of Dr. Steven Handler. All other requested discovery is denied. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
)
JUDITH KAMERER,
)
CIVIL ACTION
)
Plaintiff,
)
NO. 4:15-CV-40146-TSH
)
v.
)
UNUM LIFE INSURANCE COMPANY OF )
)
AMERICA; PROVIDENT LIFE AND
)
ACCIDENT INSURANCE COMPANY;
)
and UNUM GROUP
)
Defendants.
______________________________________ )
MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO TAKE DISCOVERY
AND ADD TO THE ADMINISTRATIVE RECORD
(Docket No. 73)
May 4, 2017
HILLMAN, D.J.
Plaintiff Judith Kamerer brings this action seeking damages and equitable relief after
defendants Unum Life Insurance Company of America, Provident Life and Accident Insurance
Company, and Unum Group terminated her long-term disability benefits under two employee
disability plans governed by the Employee Retirement Income Security Act of 1974 (“ERISA”).
Kamerer filed the present motion urging the court to permit her to conduct limited discovery to
add to the administrative record on review. Specifically, Kamerer seeks:
(1) documents showing Unum's efforts to mitigate effects of structural conflicts
(2) documents for 3 key employees for 2014-2015 (expectations reports, performance
reviews, etc.)

1

(3) documents explaining requirements of the 10/3/2005 amendment to Unum's
Reassessment Agreement regarding whether or not to grant deference to the determination
of the Attending Physician; and
(4) a 2-hour deposition of Unum's hired physician, Dr. Steven Hendler

Kamerer argues such evidence is necessary because of Unum's well-documented history
of unfair claims practices, which led state and federal regulators to find Unum's claims processes
to be institutionally biased, and resulted in Unum entering into a Regulatory Settlement Agreement
(“RSA”) in 2004. The RSA was amended in 2005 requiring the opinions of an attending physician
(“AP”) be given significant weight, as long as the AP was properly licensed, the opinion was based
on accepted medical standards, and did not run contrary to other substantial evidence on the record.
Kamerer alleges Unum did not grant the appropriate deference to her treating physicians when it
decided her claim, instead giving disproportionate weight to the opinions of its hired examining
physician and file reviewers, in violation of the RSA. Kamerer asserts that the requested discovery
will produce evidence to allow the court to determine the credibility it should assign each
consultant's report and the individuals involved in the claims determination process.
In reviewing a final ERISA administrative decision, “[t]he focus of the review…is…the
administrator's decision and must ordinarily be based on the administrative record,” however,
“[t]here may be times when it is appropriate for courts to hear new evidence. Orndorf v. Paul
Revere Life Ins. Co., 404 F.3d 510, 519-20 (1st Cir. 2005). “Where the challenge is not to the
merits of the decision to deny benefits, but to the procedure used to reach the decision, outside
evidence may be of relevance.” Id. at 520. However, the First Circuit has made clear that "some
very good reason is needed to overcome the strong presumption that the record on review is limited

2

to the record before the administrator." Liston v. Unum Corp. Officer's Severance Plan, 330 F.3d
19, 23 (1st Cir. 2003). “This is true as to discovery as well, regardless of whether the standard of
review is de novo or deferential.” Orndorf, 404 F.3d at 520.
The Defendants argue that the reason advanced by Kamerer to expand the administrative
record – Unum’s history of institutional bias more than 10 years ago – is stale. Defendants cite
several recent cases that show Unum has since adopted improved claims-handling practices to
remedy their previous conflict of interest, and note that the decision to terminate Kamerer’s
disability benefits and the subsequent appeals occurred in 2013-2015. See, e.g., Swanson v. Unum
Life Ins. Co. of Am., 2015 WL 339313, at *8 (D. Kan. 2015); Mercado v. First Unum Life Ins. Co.,
2013 WL 633100, at *27 (S.D.N.Y. 2013); Burton v. Unum Life Ins. Co. of Am., 2010 WL
2430767, at *11 (W.D.Tex. 2010).
This court will not “assume Unum is biased every time it denies a claim” simply because
it employed unfair claims practices more than a decade ago, particularly in light of changes to
claims processing it has since made. Truitt v. Unum Life Ins. Co. of Am., 729 F.3d 497, 514 (5th
Cir. 2013) (quoting Burton v. Unum Life Ins. Co., 2010 WL 2430767, at *10 (W.D.Tex. June 14,
2010); Mercado, 2013 WL 633100, at *27 (citing a January 6, 2009 letter from the Commissioners
of Insurance for Maine, Massachusetts, Tennessee and New York, to an industry publication,
noting “our most recent examination of [Unum] demonstrates that the types of systemic
misconduct found to have occurred ... are no longer present.”)). This is not to say Unum’s
unsavory past is not entitled to any weight. It most certainly is. But given the time that has passed
and the new claims-processing practices adopted by Unum pursuant to the RSA, that history does
not, by itself, amount to the “very good reason…needed to overcome the strong presumption that
the record on review is limited to the record before the administrator.” Liston, 330 F.3d at 23.

3

Apart from Unum’s pre-2006 unfair practices, the only additional reasoning Kamerer
provides for her requested document discovery are the circumstances surrounding her termination
of benefits. Kamerer received disability benefits from the Defendants without issue for 10 years
due to “a number of serious medical afflictions.” Docket No. 74, p. 2. Unum terminated her
benefits abruptly in 2014 because it claimed Kamerer could perform “sedentary” work. Kamerer
successfully appealed this termination of benefits on the basis that both of her disability policies
paid “own occupation” benefits, and that her last occupation was “light duty.” Shortly thereafter,
Unum terminated her benefits again, this time on the basis that Kamerer’s disability was mental
illness, and both plans limit benefits for mental illness to a maximum of 24-months. Kamerer
claims that these sequential actions taken to terminate her benefits “raise[] significant questions
regarding Unum’s handling of [her] claim as a fiduciary,” and that “Unum seemed fixated on
finding any reason to terminate [her] claim.” Docket No. 74, p.4.
The fact that Unum may have looked for reasons to terminate Kamerer’s benefits is not
evidence of bias or unfair claims processing. Seeking a reason to deny or terminate benefits is just
the sort of behavior that would be rationally expected of an insurance carrier with a legitimate
interest in limiting its costs to those required under its various policies. This also serves a
legitimate public interest in minimizing fraud, and helps to ensure a fair and economical insurance
marketplace in which overall costs (which are, after all, incurred by the insureds in the long run)
are held down.
As stated above, for a plaintiff to reach outside the administrative record relating to the
specific decision they must have a meaningful challenge to the “procedure used.” Orndorf, 404
F.3d at 520. The Court does not see such a challenge to the adequacy of the procedure in the
present discovery request, except on the narrow issue of Unum’s use of a physician, Dr. Hendler,

4

who has “spoken publicly about how it is his job to assist employers and insurance companies to
unmask insurance fraud.” (Docket No. 74, p. 3). As Dr. Hendler has made comments that indicate
he may favor insurers and employers, his deposition testimony would aid the court in determining
his credibility, and the appropriate weight to be given to his opinions. Accordingly, this court
allows Kamerer’s request to take a 2-hour deposition of Dr. Hendler. The court denies Kamerer’s
motion to take discovery of (1) documents showing Unum's efforts to mitigate effects of structural
conflicts, (2) documents for 3 key employees for 2014-2015 (expectations reports, performance
reviews, etc.), and (3) documents explaining requirements of the 10/3/2005 amendment to Unum's
Reassessment Agreement regarding whether or not to grant deference to the determination of the
Attending Physician.

Conclusion
For the reasons set forth above the plaintiff’s motion (Docket No. 73) is granted-in-part
and denied-in-part. Plaintiff is permitted to take a 2-hour deposition of Dr. Steven Handler. All
other requested discovery is denied.

SO ORDERED.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

5