378 F.3d 113 (1st Cir. 2004), 03-2494, Glista v. Unum Life Ins. Co. of America

Docket Nº:03-2494.
Citation:378 F.3d 113
Party Name:Bernard J. GLISTA, Plaintiff, Appellant, v. UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant, Appellee.
Case Date:August 11, 2004
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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378 F.3d 113 (1st Cir. 2004)

Bernard J. GLISTA, Plaintiff, Appellant,



No. 03-2494.

United States Court of Appeals, First Circuit

August 11, 2004

Heard June 9, 2004.

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[Copyrighted Material Omitted]

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S. Stephen Rosenfeld, with whom Mala M. Rafik and Rosenfeld & Rafik, P.C. were on brief, for appellant.

Geraldine G. Sanchez, with whom Byrne J. Decker and Pierce Atwood were on brief, for appellee.

Mary Ellen Signorille and Melvin Radowitz on brief for American Association of Retired Persons (AARP), amicus curiae.

Before LYNCH, Circuit Judge, ROSENN,[*] Senior Circuit Judge, and LIPEZ, Circuit Judge.

LYNCH, Circuit Judge.

Bernard Glista, who is in his mid-fifties, was diagnosed in January 2000 with Primary Lateral Sclerosis (PLS), a rare neurological disorder that arises in adults in mid to late life and causes progressive weakness in the muscles of the face, arms, and legs and eventual loss of basic motor functions such as speech and swallowing. Although long-term survival is possible, those afflicted can die within as few as three years from onset.

Glista, who had just changed jobs in the summer of 1999, filed a claim for long-term disability benefits with his new employer under its disability plan (the Plan), administered by Unum Life Insurance Company of America under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. The Plan grants Unum, as plan administrator, discretion to determine eligibility for benefits and to interpret Plan provisions. Unum found that Glista was disabled but denied his claim on the ground that his PLS was a pre-existing condition and, hence, was within an exclusion from coverage.

This case requires that we address for the first time two questions of general import: (a) the admissibility in ERISA cases of internal guidelines and training materials that interpret certain plan terms and are promulgated by the plan administrator; and (b) whether a plan administrator may defend a denial of benefits on the basis of a different reason than that articulated to the claimant during the internal review process. We decline to adopt hard-and-fast rules as to either question. We conclude that such internal documents are admissible under certain conditions, which

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are met here. We also conclude that where a plan administrator articulates in litigation an additional reason for denial of benefits that differs from the reasons articulated to the plaintiff, reviewing courts have a range of options available. Here, we decline to consider the merits of the reason not articulated to Glista. Considering only the reason articulated to Glista, we conclude that the denial of benefits was arbitrary and capricious.


On June 30, 1999, Glista left his position as a senior sales director at PictureTel. His long-term disability coverage under PictureTel's Unum plan stopped that day. Fifteen days later, on July 15, 1999, Glista began work at Ezenia, Inc., as the vice president of worldwide sales, and started receiving long-term disability coverage under a different Unum plan, one for Ezenia employees (the Plan). His coverage under the Plan became effective on July 15, 1999.

The Plan provides that "[w]hen making a benefit determination under the policy, UNUM has discretionary authority to determine [the claimant's] eligibility for benefits and to interpret the terms and provisions of the policy." The terms of the Plan provide coverage for claimants who are disabled for more than 180 days. One is "disabled" if one is "limited from performing the material and substantial duties of [one's] regular occupation due to [one's] sickness or injury" and has "a 20% or more loss in [one's] indexed monthly earnings due to the same sickness or injury" (emphasis omitted).

The Plan, however, "does not cover any disabilities caused by, contributed to by, or resulting from ... [a] pre-existing condition" (the Pre-Ex Clause). The Plan states that:

You have a pre-existing condition if:

--you received medical treatment, consultation, care or services including diagnostic measures, or took prescribed drugs or medicines in the 3 months just prior to your effective date of coverage [the Treatment Clause]; or you had symptoms for which an ordinarily prudent person would have consulted a health care provider in the 3 months just prior to your effective date of coverage [the Symptoms Clause]; and

--the disability begins in the first 12 months after your effective date of coverage.

The Plan's glossary defines "pre-existing condition" (the Glossary Definition) as

a condition for which you received medical treatment, consultation, care or services including diagnostic measures, or took prescribed drugs or medicines for your condition during the given period of time as stated in the plan; or you had symptoms for which an ordinarily prudent person would have consulted a health care provider during the given period of time as stated in the plan.

Glista's coverage under the Plan began on July 15, 1999. Hence, the three-month period to which the Plan refers (the Pre-Ex Period) was April 15, 1999 through July 15, 1999.

On April 23, 1999, during the Pre-Ex Period, Glista saw Dr. Anthony A. Pikus for a "slowly progressive" sense of "left lower extremity weakness" over the past several months, pain in his left heel and proximal lateral arm, and discomfort in his mid-back area. Dr. Pikus prescribed Naprosyn for the pain and referred Glista to a neurologist.

On May 26, 1999, Glista saw Dr. David A. Kolb, a neurologist, who performed a neurological exam. The exam revealed some weakness in Glista's foot and shoulder. Dr. Kolb also noted a finding of hyperreflexia, observing that Glista's "reflexes

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[were] quite hyperactive and perhaps 7-8 beats of clonus [could] intermittently be elicited at the left ankle." In addition, Dr. Kolb observed that Glista's left heel pain "does not have a radicular quality." Dr. Kolb requested an electromyography test (EMG) of the left leg and left shoulder girdle to check for "any component of lower motor neuron involvement." Primary lateral sclerosis (PLS), the disease with which Glista was ultimately diagnosed in January 2000, involves a purely upper motor neuron deficit. (A.561)

The EMG, which was done on June 8, 1999, revealed "[m]ild chronic reinnervation change, most likely in an L5 distribution." In response, Dr. Kolb requested a lumbar and cervical MRI and prescribed Anaprox. The MRIs, conducted on June 15, 1999, showed conjoining of the left L5 and S1 nerve roots, a possible minimal mass effect on the left L5 nerve root, degenerative disc disease at L5-S1, and mild early osteoarthritis.

Seven days after the Pre-Ex Period ended, on July 22, 1999, Glista went for a follow-up visit with Dr. Kolb. Glista told Dr. Kolb that he was having difficulty walking. Dr. Kolb did another neurological exam, finding that Glista's deep tendon reflexes were "normoactive to slightly hyperactive" in Glista's upper extremities and "remain[ed] hyperactive in the lower extremities." Dr. Kolb concluded, "With [Glista's] hyperreflexia which I think is a fairly solid clinical finding and some very soft findings of functional weakness ..., I think ongoing workup is mandated." He stated,

I think Bernard probably has a left L5 or S1 radiculopathy that is responsible for his left leg numbness and left foot dorsiflexor weakness.... This is certainly supported by his MRI and EMG testing.

The larger issue is his more global bilateral leg difficulties and hyperactive reflexes. My differential at this point includes structural/mass lesion of the thoracic cord, demyelinating disease, and motor neuron disease.

PLS is a type of motor neuron disease.

On August 19, 1999, an MRI of Glista's brain revealed "multiple punctate cerebral white matter lesions." When Glista returned to Dr. Kolb on September 17, 1999, Dr. Kolb reported that he "need[ed] to look into the possibility of demyelinating disease but [would] also keep the possibility of neuron disease/primary lateral sclerosis in mind." This was the first time that any doctor had specifically mentioned the possibility that Glista had PLS.

Dr. Kolb reiterated PLS as a possible diagnosis at Glista's November 8 evaluation, although he thought that Glista's sensory symptoms made such a diagnosis "improbable." Dr. Kolb sent Glista to Dr. Allan H. Ropper, Chief Professor of Neurology at St. Elizabeth's Medical Center, for a second opinion. Dr. Ropper, who examined Glista on December 13, 1999, stated that "in closely reviewing the [brain] MRI, I think there are subtle lesions in the corticospinal tracts that suggest primary lateral sclerosis" (emphasis omitted). At Glista's January 19, 2000 evaluation, Dr. Kolb reported that his "working diagnosis" was "primary lateral sclerosis."

On February 6, 2000, Glista submitted a claim for long-term disability benefits under the Plan. Glista stated on the application form that the symptoms of his disabling condition, including "leg weakness, heel & shoulder pain, [and] lower back discomfort," began around January of 1999. On the attending-physician form submitted in support of Glista's claim, dated February 15, 2000, Dr. Kolb stated that he had diagnosed Glista with PLS. In response

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to the item marked "When did symptoms first appear?" Dr. Kolb wrote "9/98." In a second supporting form, dated February 16, 2000, Dr. Kolb reiterated the diagnosis of PLS. In response to the item marked "Date of first visit for this illness or injury," Dr. Kolb wrote "5/26/1999."

Unum began an investigation into whether Glista was excluded from coverage under the Pre-Ex Clause. Glista's claim file...

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