Provident Ordered to Pay LTD Benefits Back to 2009 After Bench Trial Excuses Brain Cancer Survivor’s 12-Year Late Notice

In Nabi v. Provident Life and Casualty Insurance Company, No. 1:23-CV-00844-HKS, 2026 WL 1132875 (W.D.N.Y. Apr. 27, 2026), the Western District of New York concluded after a bench trial that the plaintiff was entitled to long-term disability benefits under an ERISA-governed policy issued by Provident Life and Casualty Insurance Company (“Provident”), with a disability onset date of December 31, 2009—even though her husband did not discover the policy and submit a claim on her behalf until September 2021.

Nabi was diagnosed with Glioblastoma Multiforme (“GBM”), an aggressive form of brain cancer with a typical survival rate of six to twelve months, in August 2003. She underwent surgical resection followed by chemotherapy and a higher-than-normal dose of whole-brain radiation. Although she initially returned to her position as office manager at her husband’s medical practice, she stopped working in December 2009 due to a gradual cognitive decline. Her husband discovered the Provident policy in September 2021, and Nabi submitted her claim in April 2022, identifying GBM as the disabling condition and December 2009 as her last day of work.

Unum, on Provident’s behalf, approved benefits beginning September 8, 2021—the date notice was received—but denied the earlier period as untimely under the policy’s “Notice of Claim” provision, which required written notice within 20 days “or as soon as reasonably possible.” The administrator reasoned that because Nabi continued working through 2009, she could have provided notice earlier and was not “legally incapacitated.” Unum’s medical consultant, Dr. Judith Cohen, reviewed records only from 2016 forward and was specifically not asked to evaluate Nabi’s cognitive status as of December 2009. Unum determined that Nabi was totally disabled when she turned 65 in 2017 (allowing the policy to conditionally renew) but maintained the September 2021 onset date for the 24-month benefit period.

Reviewing the denial de novo, Magistrate Judge H. Kenneth Schroeder, Jr. found that Nabi met her burden of proving by a preponderance of the evidence that her notice was given “as soon as reasonably possible.” Central to the court’s findings was the testimony of Dr. Gregory Castiglia, the board-certified neurosurgeon who treated Nabi continuously since her 2003 diagnosis. Dr. Castiglia testified that GBM patients who survive long-term—as Nabi has, against all odds—frequently develop delayed cognitive effects from radiation, including radiation necrosis and progressive ventriculomegaly visible on Nabi’s MRIs as early as 2009. He testified that by December 2009, Nabi’s cognitive and executive functions were impaired to the point that she could not have processed the terms of an insurance policy or filed a claim. The court found Dr. Castiglia’s testimony “clear, credible, and unrebutted.”

The court rejected each of Provident’s counterarguments. The progressive nature of Nabi’s decline did not undermine Dr. Castiglia’s opinion that the threshold for processing claim information had already been crossed by 2009. The fact that Nabi gave “informed consent” for later surgeries carried little weight given Dr. Castiglia’s testimony that she relied heavily on her family in those discussions. Provident’s reliance on office notes indicating Nabi was driving in 2016, 2017, 2019, and 2020 was undercut by Dr. Castiglia’s testimony—including that a July 28, 2020 note stating Nabi was still driving was contradicted by his own examination of her one week later, when she was confused, in a wheelchair, and unable to ambulate. The court further noted the inconsistency of Provident relying on those same post-2017 records to argue intact cognitive function while having simultaneously determined that Nabi was totally disabled due to cognitive decline as of August 2017. Nabi’s statement during the claims process that she had “forgot” about the insurance was, in context, not a garden-variety memory lapse but a manifestation of her treatment-induced cognitive impairment.

The court also rejected Provident’s argument that benefits were independently barred by the policy’s proof-of-loss provision. Citing Collier v. Lincoln Life Assurance Co. of Boston, 53 F.4th 1180 (9th Cir. 2022), and a chorus of decisions from other circuits, the court held that a plan administrator may not advance a new rationale in litigation that was not specifically identified during the administrative process. Provident’s denial letters had relied exclusively on the Notice of Claim provision, and its proof-of-loss theory could not be raised for the first time in litigation.

Finally, the court declined to remand the matter, holding that the administrative record was complete and the denial unreasonable on that record. The court awarded Nabi long-term disability benefits with an onset date of December 31, 2009, along with reasonable attorneys’ fees, costs, and prejudgment interest, and directed the parties to report on the calculation of benefits, fees, and interest within 30 days.