Adair v. El Pueblo Boys & Girls Ranch, Inc.

• Decision Date: 05 September 2013
• Docket Number: Civil Action No. 11-cv-02749-WYD-KLM
• Parties: KIMBERLY ADAIR, Plaintiff, v. EL PUEBLO BOYS & GIRLS RANCH, INC. LONG TERM DISABILITY PLAN (a/k/a "Your Group Employee Benefits Plan"; a/k/a Plan Number G204821/00001; also left specifically unnamed in an Addendum To Summary Plan Description), Defendant.
• Court: U.S. District Court — District of Colorado

KIMBERLY ADAIR, Plaintiff, v. EL PUEBLO BOYS & GIRLS RANCH, INC. LONG TERM DISABILITY PLAN(a/k/a "Your Group Employee Benefits Plan"; a/k/a Plan Number G204821/00001;also left specifically unnamed in an Addendum To Summary Plan Description), Defendant.

Civil Action No. 11-cv-02749-WYD-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: September 5, 2013

Senior Judge Wiley Y. Daniel

ORDER

I. INTRODUCTION

THIS MATTER is before the Court in connection with Plaintiff Kimberly Adair's action for Long Term Disability ["LTD"] benefits under the Employee Retirement Income Security Act ["ERISA"]. Kimberly Adair ["Plaintiff"] asserts that she has remained continuously disabled under the terms of the applicable Plan, which includes a contract of insurance, from October 1, 2002 to the present and is entitled to monthly benefits in the amount of $2,272.50 from January 1, 2003 forward. Defendant El Pueblo Boys & Girls Ranch, Inc. Long Term Disability Plan ["the Plan"] has failed to pay those benefits from December 30, 2005.

In the previous suit filed by Plaintiff against the Plan, Civil Action No. 06-cv-01343, I found by Order of March 20, 2008, that the denial of LTD benefits to Plaintiff "did not take into account or make adequate findings as to all of Plaintiff's impairmentsand whether these impairments impacted her ability to work." (March 20, 2008 Order at 36, ECF No. 84 in 06-cv-01343 [hereinafter "Order of Remand"]). Accordingly, I remanded the case for further fact finding and dismissed the case without prejudice. (Id.) On June 2, 2010, Plaintiff moved to reopen that case and requested that the Court award further benefits. I denied that motion on October 29, 2010, finding that any alleged errors while the case was on remand could be brought to the Court's attention through a new lawsuit.

Plaintiff commenced the current action on October 21, 2011. By Order of January 24, 2013, I denied the Plan's Motion for Summary Judgment which sought judgment as a matter of law because Plaintiff failed to exhaust her administrative remedies. (ECF No. 33.) I found that Plaintiff is deemed to have exhausted her administrative remedies pursuant to 29 C.F.R. § 2560.503-1(l). (Id. at 12.)

Plaintiff contends in this action that after assuming the role of claim reviewer without any apparent authority to do so, AIG Employee Benefit Solutions' Disability Claims Center ["AIG"]¹ (1) failed to review the evidence and make even a partial determination of her claim until October 15, 2008; (2) ignored findings by its own employees that Plaintiff was disabled; (3) made only a partial determination of Plaintiff's right to benefits in October of 2008, despite having all of the documents necessary to decide the entire claim; (4) did not issue a check for the partial benefits awarded in October until December of 2008; (5) conducted no further analysis of Plaintiff's claimuntil a full year later, in October of 2009; (6) failed to issue a final decision until December 29, 2009, and did not issue a check for benefits which accrued between December 30, 2004 and December 29, 2005 until December 29, 2009; and (7) issued a final denial of Plaintiff's claim for benefits accruing after December 30, 2005, based solely on an analysis of total disability when the Plan also pays benefits for partial disability, for which Plaintiff remains qualified. Plaintiff also asserts that the Plan itself failed to take any action at all on her claim despite the Court Order requiring it to do so.

Plaintiff seeks the benefits due under the Plan; an order directing the Plan to (i) issue a lump sum payment for back payments from December 30, 2005 to present, plus interest, and (ii) to make monthly benefit payments for as long as Plaintiff remains disabled; and to enjoin the Plan from any future violations of 29 U.S.C. § 2560.503-1. A hearing was held on June 7, 2013, and the matter was taken under advisement.

II. FACTS

On June 19, 2008, 90 days after this Court issued its Judgment in the previous action, AIG sent a letter to Plaintiff's counsel at an address which Plaintiff asserts AIG knew was five years out of date. (EPR0727).² The letter stated that AIG lacked the necessary information concerning Plaintiff's functional ability to return to work at the Sedentary Strength Level, and requested medical information from October 2003 through December 2004 so that AIG could "complete our review of this claim." (Id.)³

Plaintiff's counsel states that he did not receive the letter until after he called to inquire why he had not yet heard from the Plan and, in response, AIG faxed the letter to him on June 27, 2008. Although Plaintiff asserts that AIG is neither the Plan administrator nor the insurance company which insures the Plan, nor is it even the third-party claim review company which conducted the initial review of the Plan, Plaintiff complied with its requests for information.

Plaintiff also asserts that as a result of the previous action and the claim review process occurring as a result of that action, the Plan administrator already had most of the relevant records through February 2004. According to Plaintiff, her original entitlement to benefits arose on December 30, 2003, and she had supplied the administrator with medical records to support her claim for disability through a psychiatric evaluation report dated February 20, 2004, before the original action was filed in this Court. Therefore, Plaintiff contends that the Plan administrator could have reviewed Plaintiff's entitlement to benefits through at least February 2004 without any further documents.

In any event, and since four additional years had passed for which Plaintiff claimed benefits, there were additional records which were relevant to her claim. Upon receipt of AIG's letter in June 2008, Plaintiff's counsel informed AIG that Plaintiff had an appointment with a treating physician on July 22, 2008, and that she would request the records AIG requested at that time. (EPR0728.) Plaintiff requested the records as represented, and on August 7, 2008, Plaintiff's counsel provided AIG with a CD containing all of Plaintiff's updated medical records through July 22, 2008. (EPR0622-23.) This included almost 100 pages of up-to-date records from 2003 through July 2008, including the psychiatric evaluation from February 2004. (EPR0627-0725.)

In August 2008, AIG undertook its reevaluation of Plaintiff's claim pursuant to the remand order. (EPR0002.) On August 19, 2008, AIG acknowledged the receipt of the records from Plaintiff's counsel and requested 30 days, up to September 19, 2008, to complete its review. (EPR0617.) AIG's letter stated that "if for some reason additional time is required to complete our review, we will notify you in writing and will state the reason(s) for the extension." (Id.)

On September 15, 2008, although it had already acknowledged receiving the CD containing Plaintiff's records, AIG sent another letter to Plaintiff's counsel. It stated in the letter that "we have made several attempts to obtain a copy of Ms. Adair's psychiatric evaluation report, dated March 29, 2004," and requested an additional 30 days to review the claim, up to October 15, 2008. (EPR0594.)⁴

Plaintiff's counsel responded the same day, September 15, 2008, with a return fax including a copy of the psychiatric report from February 2004. (EPR0587-0592.) Counsel stated in the letter that he was "surprised" that AIG did not have a copy of the report because "AIG's attorneys were provided with a copy of this document, and many others, as part of the lawsuit in U.S. District Court", and "they should have provided you with a copy because AIG is deemed to possess any documents its attorneys possess." (EPR0587.) Plaintiff notes that the psychiatric report was also sent to Disability RMS ["DRMS"] in 2004, who had performed the first evaluation of Plaintiff's disability claim,and had also been disclosed to the Plan during the original litigation. Indeed, AIG's own internal notes from September 2, 2008, document that the psychiatric evaluation had been sent to DRMS as part of the original appeal. (EPR0003.) Further, Plaintiff notes that the Court's Order of March 20, 2008 documented that a psychiatric evaluation was provided to DRMS on March 24, 2004, and informed the Plan that this evidence should be considered on remand. (Order of Remand at 45.)

AIG's internal notes state that on October 9, 2008, it digitally processed medical records for the following dates: 03/24/2004, 08/16/2008, 06/19/2008, 12/13/2006, 07/24/2007, and 07/22/2008. (EPR0004-0005.) Plaintiff asserts that AIG's internal fax scan orders show that the records which are stamped on the bottom as having been "[r]eceived on 8/26/2009 . . ." were actually received by AIG through the CDs provided by Plaintiff's counsel on August 7, 2008 and September 15, 2008. (EPR0077, 0086.)

On October 15, 2008, AIG notified Plaintiff that she was awarded disability benefits "as the claim file supports the inability to perform her job as a Human Resources Director from October 1, 2002 through the elimination period up to August 20, 2004." (EPR0222.) AIG stated in its letter that "[a]s a result of the decision to overturn the appeal, Long-Term Disability Benefits will be paid retroactively from the effective date of Long-Term Disability, December 30, 2002 through August 20, 2004." (Id.) AIG also stated that "[i]n order for LTD benefits to continue beyond August 20, 2004, Ms. Adair must provide additional medical documentation from February 20, 2004 through the present." (EPR0222-0223.) Plaintiff asserts in response that not only did AIG already have these medical records in its possession, they had been scanned into its computer system and should have been available for the claim analyst to review.

On October 17, 2008, Plaintiff's counsel responded to AIG's October 15, 2008 letter, stating that he was "uncertain why AIG did not award benefits beyond August 20, 2004, and that Plaintif...