Suter v. The Carpenter Health and Welfare Trust Fund of St. Louis

Filing 71

OPINION AND MEMORANDUM IT IS HEREBY ORDERED that the decision of the defendant is reversed and this matter is remanded with instructions to reopen the administrative record and allow plaintiffs an out-of-time appeal. IT IS FURTHER ORDERED that Count I of defendant's Counterclaim is dismissed without prejudice. Signed by Magistrate Judge Frederick R. Buckles on 9/28/2012. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL SUTER, et al.,
Plaintiffs/Counter-Defendant,

v.
THE CARPENTERS’ HEALTH AND
WELFARE TRUST FUND OF
ST. LOUIS,
Defendant/Counter-Claimant.

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Case No. 4:10CV1855 FRB

OPINION AND MEMORANDUM
This matter is before the Court for decision following a
trial before the Court without a jury.

All matters, including all

pretrial matters, trial, entry of final judgment, and determination
of all post-trial matters, are pending before the undersigned
United States

Magistrate Judge, with consent of the parties,

pursuant to 28 U.S.C. § 636(c).
Plaintiffs Michael Suter and Candice Suter brought this
action in the Associate Division of the 21st Judicial Circuit
Court, St. Louis County, Missouri, alleging that The Carpenters’
Health And Welfare Trust Fund Of St. Louis (also “defendant” or
“Fund”) wrongfully denied health care benefits.

On October 1,

2010, defendant removed the matter to this Court, alleging that
this Court has jurisdiction over plaintiffs’ claims inasmuch as
they arise under the civil enforcement provision of the Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(a)(3).
On October 8, 2010, defendant filed an Answer and a two-count
-1-

Counterclaim,

acknowledging

individuals under the Plan.

that

the

plaintiffs

are

covered

Count II of the Counterclaim was

dismissed by this Court on June 17, 2011.

In Count I of the

counterclaim, defendant seeks a declaration that, if the plaintiffs
receive money from a third party based on an act or omission that
caused

injuries

for

which

the

Fund

paid

benefits,

that

the

plaintiffs will hold such money as trustees of the Settlement Trust
for the benefit of the Fund.

The parties do not dispute that The

Carpenters’ Health and Welfare Plan (“Plan”) is an employee benefit
plan governed by ERISA.

Michael Suter is an employee participant

in the Plan, and his wife Candice Suter and their children, A.S.
and G.S., are eligible dependents.
Michael Suter and Candice Suter filed individual motions
for summary judgment on Count I of defendant’s Counterclaim.

On

November 3, 2011, this Court granted Candice Suter’s motion for
summary judgment, but denied Michael Suter’s motion for summary
judgment.
On December 5, 2011, a non-jury trial was held before the
undersigned.

Candice Suter testified for the plaintiffs, and Fund

employee Carolyn Perez, Benefits Plans Assistant Administrator,
testified for defendant.
presented testimony.

Michael Suter neither

appeared nor

Each party has submitted a post-trial brief,

to which responses have been filed.

The matter is now ripe for

adjudication. Pursuant to Rule 52(a) of the Federal Rules of Civil
Procedure, from the testimony and evidence adduced at trial, the
undersigned makes the following findings of fact and conclusions of
-2-

law.
FINDINGS OF FACT
1.
welfare

The Plan is a multi-employer, jointly trusteed, employee
benefit

plan

established

pursuant

to

the

collective

bargaining agreement between the union representing carpenters
working

in

covered

employment

and

the

employers

of

those

carpenters.
2.

The Fund is a trust established to receive employer

contributions made pursuant to a collective bargaining agreement
and to hold those funds in trust for the exclusive purpose of
providing medical benefit payments to or for covered individuals
under the terms of the Plan Document, and is managed, administered
and directed by its trustees.
3.

The Plan and the Fund were, at all times relevant to this

litigation,

subject

to

ERISA

and

the

applicable

regulations

promulgated by the Department of Labor.
4.

The

Plan

provided

that

the

Plan

Administrator

had

discretionary authority to interpret the Plan terms.
5.

Plaintiff Michael Suter is a union carpenter and member

of Local Union 097.
6.

At all times relevant to this litigation, plaintiff

Michael Suter had worked sufficient hours in covered employment to
meet the “hours requirement” for eligibility under the Plan.
7.

At all times relevant to this litigation, plaintiff

Candice Suter, as the wife of Michael Suter, and G.S. and A.S., as
the children of Michael Suter, were eligible for coverage under the
-3-

Plan as dependents of plaintiff Michael Suter.
8.

The Plan Document and Summary Plan Description provided

that the Plan was not obligated to pay benefits to a covered person
for

services

related

to

an

injury

or

sickness

related

to

a

potential third party liability claim.
9.

The Plan includes an exception to that provision: if the

covered person complies with the terms of the Plan’s Subrogation
Agreement

and

executes

a

Subrogation

Agreement

Right

To

Reimbursement document, assigning the proceeds of any third party
recovery, without any deduction whatsoever, from any third party up
to the amount paid to or on behalf of the covered person in
connection with the injury or incident, then the Plan will pay
benefits to the covered person for services related to an injury or
sickness related to a potential third party liability claim.
10.

Michael Suter was involved in a motor vehicle accident in

April of 2004.
11.

Following that accident, Michael Suter sought medical

treatment and incurred medical bills.
12.

The medical treatment providers submitted claims for

their services to the Fund.
13.

Based upon the diagnostic codes used by the providers in

those claims to describe the services rendered to Michael Suter as
a result of the accident, the Fund denied the claims.
14.

The Fund sent Michael Suter Explanation of Benefits

(“EOB”) forms advising of the denials and offering various reasons
therefor. Some of the EOBs specified “Reason Code” D04 (“Diagnosis
-4-

consistant [sic] with an injury - please submit accident detail
information”
(“Services

related

Subrogation

to

agreement

Exhibit

potential
must

be

I-001)
third

and

party

submitted

for

Reason

Code

liability

D90

claim.

consideration

of

(Id. at 025).

charges.”)
15.

(Defendant’s

Michael

subsequently
Reimbursement.

Suter

executed

and
a

his

then-attorney,

Subrogation

Debra

Agreement

Suter,

Right

To

Michael Suter signed the Agreement on January 3,

2005, and Debra Suter signed it on December 28, 2004.
16.

On January 4, 2005, Fund employees Lesa Davis and Sharon

Friedrich of the Claims Department communicated by email.

Ms.

Davis advised that Michael Suter’s Subrogation Agreement had been
received, and instructed Ms. Friedrich to process any claims which
had previously been denied, reversed or “pended.” (Defendant’s
Exhibit H).
17.

Candice Suter testified that Michael Suter’s 2004 motor

vehicle accident led to a civil lawsuit which she believes was
settled.
18.

Candice Suter testified that no money was paid to her in

settlement, but that she believes there was money paid to Michael
Suter.
19.

The

Fund

took

no

action

to

intervene

in

the

civil

lawsuit.
20.

The Plan’s Summary Plan Description contains a Right of

Offset and Recovery (also “ROR”) provision which provided that the
Fund had the right to recover any amounts that were erroneously
-5-

paid or overpaid by offsetting such amounts by reducing future
benefits due to either the person on whose behalf the payments were
made, or any member of that person’s family also covered under the
Plan.
21.

In April of 2009, a telephone conversation occurred

between Attorney Gregory Fenlon and Fund employee Vicky Caravia.
(Defendant’s Exhibit S). During that conversation, Gregory Fenlon
advised that Michael Suter’s April 27, 2004 motor vehicle accident
case had been turned over to him and was close to settling, and
requested the Fund’s total lien amount.

Gregory Fenlon further

advised Vicky Caravia that Michael Suter’s injuries related to the
motor vehicle accident were head and knee, and stated that Michael
Suter’s ending date of treatment was December 31, 2005.
22.

Vicky Caravia indicated that Michael Suter had knee

surgery on March 1, 2006, and that she was therefore including that
claim in the total lien amount.
23.

Vicky Caravia wrote to Gregory Fenlon on April 7, 2009

notifying him of the total lien amount, stated that reimbursement
was expected 30 days following settlement, and attached a report of
subrogation-related claims indicating which of Michael Suter’s
claims the Fund had deemed related to the motor vehicle accident.
The amount of the claims defendant deemed related to the accident
totaled $3,364.23.
24.

On June 25, 2009, Carolyn Perez wrote a letter to Michael

Suter advising him that the Plan had elected to enforce its rights
of offset and recovery to satisfy a subrogation lien in the amount
-6-

of $3,364.23, and that, “[e]ffective August 1, 2009, the Plan will
offset all payable charges to satisfy your Subrogation Lien amount
of $3,364.23.

You will be responsible for all charges incurred

until the lien is paid in full.”
25.

(Defendant’s Exhibit U).

The June 25, 2009 letter stated that Michael Suter could

contact Ms. Perez with any questions or comments, but the letter
contained no information regarding appeal rights.
26.

Carolyn Perez testified that she sent the June 25, 2009

letter to Michael Suter because she believed that Michael Suter was
not going to comply with the terms of the Subrogation Agreement.
Carolyn

Perez

made

this

determination

on

the

basis

of

communications via telephone and letters that occurred earlier.
27.

When Carolyn Perez wrote the June 25, 2009 letter, she

was aware that there was a dispute between Michael Suter and the
Fund as to whether all of the claims applied to the lien were
actually related to Michael Suter’s motor vehicle accident.
28.

Carolyn Perez

testified that she did not hear from

Michael Suter regarding the June 25, 2009 letter.
29.

Carolyn Perez testified that the Fund got a late start in

implementing the ROR, and on September 15, 2009, the Fund sent an
additional letter to Michael Suter stating that “due to lack of
response to our previous letters” the Plan had decided to enforce
the ROR provision to satisfy the Subrogation Lien in the amount of
$3,364.23.

The letter stated “[e]ffective immediately the Plan

will offset all payable charges to satisfy your Subrogation Lien in
the amount of $3,364.23.

Please note the Right Off Set and
-7-

Recovery

is

applicable

to

all

family

members.

You

will

be

responsible for all charges incurred until the lien is paid in
full.”
30.

(Defendant’s Exhibit V-2).
The September 15, 2009 letter stated that Michael Suter

could contact Ms. Perez with any questions or comments, but the
letter contained no information regarding appeal rights.
31.

Commencing in September of 2009 and ending by October of

2010, the Plan did not pay approximately 57 claims filed in
conjunction with care received by either Michael Suter, Candice
Suter, G.S., or A.S.
32.

By October of 2010, the Fund had recovered the full

amount of the Subrogation Lien.
33.

One of the denied bills related to services rendered to

Michael Suter on March 1, 2010 by a dentist named Dr. John W.
Probst in the amount of $52.00.
34.

The remainder of the denied bills related to services

rendered to either Candice Suter, G.S. or A.S.
35.

For each denial, the Fund sent a written notice addressed

to Michael Suter at the address he shares with Candice Suter, G.S.,
and A.S.

Each written notice was in the form of an EOB, which is

a preprinted form filled in with the relevant information.

The

relevant information included the name of the patient, the service
provider’s name, the claim number, the claim status, the paid date,
the date of service and description of the service received, the
charges incurred, and the amounts not covered.

The EOBs also

included a section called “Reason Code” and a key purporting to
-8-

describe the reason codes provided.
36.

The Fund’s policy was to send denial notices only to the

member rather than to the person whose claim had been denied.
37.

Candice Suter testified that Michael Suter would not

necessarily share such notices with her.
38.

Candice Suter had primary medical coverage through her

employment as of October of 2010.
39.

The Plan sets out a procedure to be followed in instances

where a settlement is less than the total amount of a subrogation
lien.
bringing

That procedure requires the member to file an appeal
the matter to an appeals committee which determines

whether the Plan can accept a settlement that is insufficient to
satisfy the lien.
CONCLUSIONS OF LAW
Under ERISA, a plan participant may bring a civil action
to “recover benefits due to him under the terms of his plan, to
enforce his rights under the terms of the plan, or to clarify his
rights to future benefits under the terms of the plan.”

29 U.S.C.

§ 1132(a)(1)(B).
Although ERISA itself does not specify the appropriate
standard of review, the United States Supreme Court has held that
a reviewing court should use a de novo standard of review, unless
the plan grants the

administrator the authority to determine

eligibility for benefits, or to construe the terms of the Plan.
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).
When the plan administrator possesses such discretionary powers,
-9-

the district court reviews the administrator’s decision for abuse
of discretion.
(8th

Cir.

Green v. Union §. Ins. Co., 646 F.3d 1042, 1050

2011);

McGee

v.

Reliance

Standard

Life

Insurance

Company, 360 F.3d 921, 924 (8th Cir. 2004); Cash v. Wal-Mart Group
Health Plan, 107 F.3d 637, 640-41 (8th Cir. 1997).
Under

this

deferential

standard

of

review,

an

administrator’s decision must stand unless it was arbitrary and
capricious.

Green, 646 F.3d at 1050.

uphold

administrator’s

the

decision

The district court shall
if

that

decision

“reasonable; i.e., supported by substantial evidence.”

was

McGee, 360

F.3d at 924. Substantial evidence means “such relevant evidence as
a

reasonable

conclusion.”

mind

might

accept

as

adequate

to

support

a

Id. (citing Consolidated Edison Co. v. N.L.R.B., 305

U.S. 197, 229 (1938)).

If substantial evidence is found, the

Administrator’s decision should be upheld even if a different,
reasonable interpretation exists.

Cash, 107 F.3d at 641.

There is a dispute between the parties regarding, inter
alia,

whether

the

claims

that

defendant

attributed

subrogation lien were related to the accident.

to

the

For example,

plaintiffs contend that Michael Suter’s March 1, 2006 knee surgery,
which was included in the subrogation lien amount, was not related
to the accident. Indeed, the record indicates that, although Vicky
Caravia was specifically notified that Michael Suter ceased his
accident-related

medical

treatment

on

December

31,

2005,

she

included his March 1, 2006 knee surgery in the total lien amount
because she had been told that Michael Suter sustained a knee
-10-

injury in the accident.

It is unclear whether this decision was

reasonable, especially because there is no indication that Vicky
Caravia investigated whether the surgery was actually related to
the accident even though she had been told that Michael Suter had
ceased his accident-related medical treatment months earlier.
The undersigned first addresses the threshold issue of
whether the plaintiffs exhausted their administrative remedies.
Before bringing suit for denial of claims under an employee benefit
plan, claimants must exhaust administrative remedies.
exhaustion requirement

ERISA’s

originates in 29 U.S.C. § 1133, which

provides:
In accordance with regulations of the secretary, every
employee benefit plan shall (1) provide adequate notice in writing to any
participant or beneficiary whose claim for
benefits under the plan has been denied,
setting forth the specific reasons for such
denial, written in a manner calculated to be
understood by the participant, and
(2) afford
participant
denied for
appropriate
denying the

a reasonable opportunity to any
whose claim for benefits has been
a full and fair review by the
named fiduciary of the decision
claim.

29 U.S.C. § 1133.
While

§

1133

does

not

expressly

provide

that

beneficiaries exhaust their contractual remedies prior to bringing
suit, federal courts have universally construed § 1133 to require
exhaustion.

Brown v. J.B. Hunt Transportation Services, Inc., 586

F.3d 1079, 1084 (8th Cir. 2009).
exhaust

administrative

If a claimant fails to pursue and

remedies
-11-

that

an

ERISA

plan

clearly

requires, his claim for relief is barred.
omitted).
the

Id. (internal citations

This judicially-created exhaustion requirement serves

important

purposes

of

enabling

a

plan

to

obtain

full

information about a claim for benefits, to compile an adequate
record, and to make a reasoned decision, giving a reviewing court
Id. (quoting Back v.

“a factual predicate upon which to proceed.”
Danka

Corp.,

335

F.3d

790,

792

(8th

Cir.

2003)).

In

some

circumstances, however, such as when an ERISA-governed plan fails
to adequately provide participants with the notice and review
required by § 1133, the participants are relieved of their duty to
exhaust their administrative remedies.

Id. (internal citations

omitted).
One of the purposes of § 1133 is to provide claimants
with

enough

information

to

adequately

prepare

for

administrative review, or to appeal to the federal courts.
586 F.3d at 1086 (internal citations omitted).

further
Brown,

“To the extent the

statute is ambiguous, § 1133’s disclosure requirements should be
construed broadly, because ERISA is remedial legislation and should
be liberally construed to effectuate Congress’s intent to protect
plan participants.

Id. (citing Starr v. Metro Sys., Inc., 461 F.3d

1036, 1040 (8th Cir. 2006)).
The

Regulation

implementing

the

statutory

mandate

provides, inter alia, that the plan administrator shall provide a
claimant with written notice which shall set forth in a manner
calculated to be understood by the claimant:
(i)

The specific reason or reasons for the
-12-

adverse determination;
(ii) Reference to the specific plan provisions
on which the determination is based;
(iii)
A description of any additional
material or information necessary for the
claimant
to
perfect
the
claim
and
an
explanation
of
why
such
material
or
information is necessary; [and]
(iv) A description of the plan’s review
procedures and the time limits applicable to
such procedures, including a statement of the
claimant’s right to bring a civil action under
section 502(a) of the Act following an adverse
benefit determination on review[.]
29 C.F.R. § 2560.503-1(g); Chorosevic v. MetLife Choices,
600

F.3d

934,

943

(8th

Cir.

2010).

“The

purpose

of

this

requirement is to provide claimants with enough information to
prepare adequately for further administrative review or an appeal
to the federal courts.”

Id. (quoting DuMond v. Centex Corp., 172

F.3d 618, 622 (8th Cir. 1999)).

“[I]f a claim is wholly or

partially denied, the plan administrator shall notify the claimant
.

.

.

of

the

plan’s

adverse

benefit

determination

within

a

reasonable period of time, but not later than 90 days after receipt
of the claim by the plan, unless the plan administrator determines
that

special

circumstances

processing the claim.”

require

an

extension

of

time

for

29 C.F.R. § 2560.503-1(f)(1).

The Regulations further provide that, in sending notice
required by ERISA, the plan administrator “shall use measures
reasonably calculated to ensure actual receipt of the material by
plan participants, beneficiaries and other specified individuals.”
29 C.F.R. § 2520.104b-1(b). These regulations “establish extensive
-13-

requirements to ensure full and fair review of benefit denials.”
Aetna Health Inc. v. Davila, 542 U.S. 200, 220 (2004).
In the case at bar, plaintiffs contend that defendant did
not act in accordance with 29 C.F.R. § 2520.104b-1 in sending the
EOBs,

inasmuch

as

they

were

all

addressed

to

Michael

Suter

regardless of the identity of the person whose claim for benefits
was denied.

Plaintiffs also contend that the EOBs all contained

confusing and misleading information.

In response, defendant

admits that “the EOBs could have been more precise and specific,”
(Docket No. 70 at 5), but contends that all of the EOBs addressed
to Michael Suter were mailed to the address he admittedly shared
with Candice Suter, G.S. and A.S. Defendant also contends that the
EOBs clearly stated the name of the patient to whom the claim
pertained.
The undersigned first addresses the June 25, 2009 and
September 15, 2009 letters from Carolyn Perez addressed to Michael
Suter.
ERISA.

These letters qualify as denial notices for purposes of
Although

neither

letter

denied

a

specific

claim

for

benefits, the June 25, 2009 letter clearly expressed the Plan’s
intention to deny Michael Suter future benefits to satisfy the
Fund’s lien of $3,364.23, and the September 15, 2009 letter clearly
expressed the Plan’s intention to deny the future benefits of
Michael Suter and all of his family members to satisfy the Fund’s
lien of $3,364.23.

These are clear repudiations of benefits.

The

Eighth Circuit has held that a before-the-fact repudiation of
benefits qualifies as a denial notice.
-14-

Union Pacific R. Co. v.

Beckham, 138 F.3d 325, 330 (8th Cir. 1998); Janssen v. Minneapolis
Auto Dealers Ben. Fund, 447 F.3d 1109, 1114-15 (8th Cir. 2006)
(citing same).

The letters therefore should have included notice

of a method and reasonable opportunity for full and fair review.
29 U.S.C. § 1133; 29 C.F.R. § 2560.503-1.

However, neither letter

mentioned the right to appeal, nor explained the proper appeals
process.

The undersigned therefore determines that, while the

letters qualify as denial letters for purposes of ERISA, neither
letter satisfies the requirements of 29 U.S.C. § 1133 and 29 C.F.R.
§ 2560.503-1.

Janssen, 447 F.3d at 1115 (In order to comply with

ERISA, an initial denial letter must include an explanation of the
appeals process).
The record also contains written notices regarding 57
individual claims that were applied towards defendant’s subrogation
lien.

For each of these 57 claims, the Fund provided written

notice in the form of EOBs.

All of the EOBs were addressed to

Michael Suter and mailed to him at the address he shares with
Candice Suter, G.S. and A.S.

Of the 57 EOBs sent, only one related

to a claim for benefits related to care rendered to Michael Suter.
The remaining EOBs related to claims for benefits for care rendered
to either Candice Suter, G.S., or A.S.
As plaintiffs contend, the Regulations provide that, when
sending denial notices, the plan administrator shall “use measures
reasonably calculated to ensure actual receipt of the material by
plan participants, beneficiaries, and other specified individuals.”
29 C.F.R. § 2520.104b-1.

A measure “reasonably calculated to
-15-

ensure

actual

receipt

of

the

material

by

plan

participants,

beneficiaries, and other specified individuals” would presumably
include addressing the denial notice to the person to whom the
claim for benefits pertained.

The Regulations also specify that,

if a claim for benefits is wholly or partially denied, the plan
administrator shall notify “the claimant” of the adverse benefits
determination.

29 C.F.R. § 2560.503-1(f)(1).

With the exception

of the single dental claim by Michael Suter, the “claimant” for the
remainder of the 57 denied claims was either Candice Suter, G.S. or
A.S., and yet the notices were sent only to Michael Suter.

See

Scibelli v. Prudential Ins. Co. of America, 666 F.3d 32, 43 1st
Cir. 2012) (noting that sending notice to the claimant’s employer
rather than to the claimant did not procedurally comply with the
requirement of 29 C.F.R. § 2560.503-1 that the plan administrator
send adverse benefit notices to the claimant).

In addition, even

if the EOBs had been addressed to the claimant to which they
pertained, the undersigned notes that they are all undated.
(Defendant’s Exhibit X).
determine

whether

See

This leaves the undersigned unable to

defendant

sent

any

of

the

EOBs

“within

a

reasonable period of time, but not later than 90 days after receipt
of the claim by the plan” as required by 29 C.F.R. § 2560.5031(f)(1).

The foregoing is especially troubling given Candice

Suter’s uncontroverted testimony that she never received any of the
EOBs.
In addition, all of the EOBs contained conflicting,
confusing, and misleading information.
-16-

Each EOB includes a “Claim

Status” section, and on each EOB the claim status is denoted, in
all-capital letters, as “PAID,” and even includes a “Paid Date”
section that indicates the date on which the claim was paid.

See

(Defendant’s Exhibit X). This information directly conflicted with
the remainder of the information provided on the EOBs.

On all of

the EOBs, below the section that included the claim status and the
paid date there is a grid indicating various information, including
the

total

amount

of

the

provider’s

charges,

a

“Not

Covered/Discount” amount, an “Allowable Amount”, the deductible,
the co-pay, a section marked “Reason Code,” the total amount paid,
any

other

insurance,

and

the

amount

of

the

patient’s

responsibility. (Defendant’s Exhibit X). All of the EOBs included
calculations on this grid, and indicated a dollar amount in the
“Patient Responsibility”

section.

See Id.

This information

directly conflicts with the information appearing directly above
the grid indicating that the claim had been paid and the date on
which it had been paid.

While the EOBs were not required to

include a lengthy, reasoned opinion, they were required to be
written

in

a

participant.”
claim

status

manner

“calculated

29 U.S.C. § 1133(1).
was

denoted

“PAID”

to

be

understood

by

the

While it may be that the
because,

from

defendant’s

perspective, the claim was “paid” towards its subrogation lien, §
1133

requires

that

notices

be

written

in

a

calculated to be understood by the participant.

manner

that

is

After-the-fact

plan interpretations devised for litigation cannot be used to
buttress the rationale provided at the time of the denial.
-17-

King v.

Hartford Life and Acc. Ins. Co., 414 F.3d 994, 999-1000 (8th Cir.
2005).
As

plaintiffs

argue,

and

as

defendant

essentially

conceded when it stated that the EOBs “could have been more precise
and specific” (Docket No. 70 at 5), the EOBs were undated, and they
contained

conflicting,

confusing,

and

misleading

information.

Plaintiff’s argument that the EOBs failed to comply with § 1133 is
therefore well-taken.
As

defendant

argues,

the

appropriate

remedy

for

a

violation of § 1133 is not an award of benefits from this Court,
but

a

remand

to

the

Fund

with

instructions

to

re-open

the

Brown, 586

administrative record and allow an out-of-time appeal.

F.3d at 1086 (collecting cases holding that the appropriate remedy
for a violation of § 1133 is to remand to the plan administrator to
allow

the

claimant

the

contemplated by § 1133).

benefit

of

the

full

and

fair

review

Remand is especially appropriate in this

case given the sparse factual record before the Court.
In

Count

I

of

its

Counterclaim,

which

pertains

to

plaintiff Michael Suter, defendant seeks a declaration that, if he
receives money from a third party based on an act or omission that
caused injuries for which the Fund paid benefits, that he will hold
such money as trustee of the Settlement Trust for the benefit of
the Fund.
be

However, given that the decision to deny benefits should

reversed

and

the

cause

remanded

for

further

proceedings

including a re-opening of the administrative record, finding for
either party on Count I of defendant’s Counterclaim would not be
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appropriate.
Therefore, for all of the foregoing reasons,
IT IS HEREBY ORDERED that the decision of the defendant
is reversed and this matter is remanded with instructions to reopen the administrative record and allow plaintiffs an out-of-time
appeal.
IT

IS

FURTHER

ORDERED

that

Count

I

of

defendant’s

Counterclaim is dismissed without prejudice.

_______________________________
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 28th day of September, 2012.

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