A recent district court order deciding a long-term disability dispute highlights the importance of claimants with ERISA-governed claims to submit everything to the claims administrator that they might want a court to consider down the line. In Himes v. Provident Life and Accident Insurance Company, No. 3:19-CV-00215, 2021 WL 679280 (M.D. Tenn. Feb. 22, 2021), Plaintiff Himes filed suit against Defendant Provident Life and Accident Insurance Company (a.k.a. Unum) challenging Unum’s termination of his long-term disability benefits after paying him for over twenty years. The court denied Himes’ motion to supplement the record and his motion for judgment on the administrative record.
What I want to highlight about this decision is the court’s denial of Himes’ request to supplement the record with portions of a Regulatory Settlement Agreement (RSA) that Unum entered with the United States Department of Labor and other multi-state jurisdictions that allowed for reassessment of certain claims previously denied and/or terminated. Himes submitted some portions of the RSA with his appeal to Unum but wanted the court to consider other portions related to Unum’s conduct on appeal, including Unum’s request to have him undergo an Independent Medical Evaluation (“IME”).
In denying Himes’ request, the court noted that its review of Unum’s decision will be de novo, that is, the court will not give Unum’s decision any deference. However, the court’s review is still limited to the record developed before Unum made a final decision (i.e., the information considered by Unum) on Himes’ appeal unless the extra-record evidence is offered in support of a procedural challenge to Unum’s decision, such as an alleged lack of due process afforded by Unum or alleged bias on its part.
The court explained that Unum told Himes several times that he could request and submit whatever information he wanted it to consider. He received his claim file and knew what it contained, yet he chose to only submit portions of the RSA rather than the full RSA. “Thus, to the extent evidence is missing from the administrative record, Himes is to blame, and he ‘cannot now seek to make a complete evidentiary record, having failed to do so during his administrative appeal.’” citing to Fendler v. CNA Grp. Life Assur. Co, 247 F. App’x 754, 758 (6th Cir. 2007). In response to Himes’ argument that the new portions of the RSA pertaining to IMEs was not relevant at the time he submitted his request for review, the court determined that Himes was aware of the issue prior to his appeal and had ample opportunity to submit any relevant portions of the RSA after he filed his appeal. In sum, “Himes had multiple opportunities to submit or supplement the record with the entire RSA or those portions that he believed relevant to the IME requirement, and, by failing to do so, he is barred from trying to supplement the administrative record at this juncture.”
Himes is a pro se plaintiff. The court’s decision may have been different if Himes requested that the court take judicial notice of the RSA, as did a court in California. Alvarez v. Unum Life Ins. Co. of Am., No. C 07-00974 WHA, 2007 WL 2348737 (N.D. Cal. Aug. 14, 2007) (granting Plaintiff’s request for judicial notice of the California settlement agreement). A court can consider material that is subject to judicial notice under Rule 201 of the Federal Rules of Evidence. Under Rule 201, the court can judicially notice “[o]fficial acts of the legislative, executive, and judicial departments of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” FED.R.EVID. 201. While the court may have denied Plaintiff’s request, it is an avenue worth exploring for evidence meeting Rule 201’s requirements.
New documents or information in an ERISA benefit claim dispute may be admitted by a reviewing court subject to limited exceptions or by judicial notice, but it is important for claimants to understand that they cannot assume that a court will consider new information after an administrator makes a final decision. This reality counsels toward retaining an experienced ERISA attorney to handle an administrative or pre-litigation appeal. If Unum has denied your long-term disability claim, contact Roberts Disability Law for assistance with the appeal.
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