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UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

:

DEBRA KINSMAN :::

v. : CIV. NO. 3:03CV280 (WWE)

:

UNUMPROVIDENT CORPORATION:

and PROVIDENT LIFE AND :

ACCIDENT INSURANCE COMPANY ::::

RULING ON PENDING DISCOVERY MOTIONS

Plaintiff brings this lawsuit pursuant to 29 U.S.C.

§1132(a)(1)(b) and (a)(3) to challenge the denial of long term

disability benefits by UnumProvident and Provident Life and Accident

Insurance Company ("defendants"). Provident was the "fiduciary" and

onset of disability on September 21, 2001, due to several medical

conditions including colitis, fibromyalgia and depression.

for Order [Doc. #14]. Oral argument was held on November 12, 2003.

1. Social Security Rulings 96-2(p), 96-3(p), 96-4(p), 96-7(p)

and 96-8(p); PLACL00780-820 41 pages;

2. Dorsey v. Provident Life, USDC (E.D.P.A) 10.5/01;

PLACL00769-00779 11 pages;

3. "Fibromyalgia Basics" and "Diagnostic Criteria for

Fibromyalgia and CFS" from the Fibromyalgia Network [a

web-based advocacy site]; PLACL00762-768 7pages;

4. The deposition of Patrick Fergal McSherry, volumes I, II,

III including but not limited to issues regarding

fibromyalgia; PLACL00496-00745 249 pages; and

requiring doctors to alter and destroy medical documents

and reports; PLACL00480-495 15 pages.

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exclude documents from the administrative record at the beginning of

the litigation to avoid any inequitable results. Specifically,

defendants move this Court to enter an order striking five documents

Provident by plaintiff on September 22, 2002, and were considered by

the company as part of the administrative record on appeal. [Doc. #17

at 2, Ex. A].

Defendants did not object to the submission of these documents

"salted" the administrative record with irrelevant and immaterial

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administrative appeal was denied.

Plaintiff argues that she "had every reasonable expectation

that the documents submitted would be a part of the administrative

record in this matter, and considered by the plan administrator."

[Doc. #17 at 5]. ERISA affords to any participant whose claim for

benefits has been denied "a reasonable opportunity . . . for a full

and fair review by the appropriate named fiduciary of the decision

denying the claim." 29 U.S.C. §1133 (emphasis added). The Third

Circuit Court of Appeals has held that Section 1133 requires the

following:

To afford a plan participant whose claim has been denied a

reasonable opportunity for full and fair review, the

plan's fiduciary must consider any and all pertinent

information reasonably available to him. The decision

must be supported by substantial evidence. The fiduciary

must notify the participant promptly, in writing and in

language likely to be understood by laymen, that the claim

has been denied with the specific reasons therefor. The

fiduciary must also inform the participant of what

evidence he relied upon and provide him with an

opportunity to examine that evidence and to submit written

comments or rebuttal documentary evidence. If the

fiduciary allows third parties to appear personally, the

same privilege must be extended to the participant.

Cir. 1983); see Birdsell v United Parcel Service of America, Inc.,

903 F. Supp. 1338, 1350 (E.D. Mo. 1995) (claimant "invited to submit

any additional information which he feels the [Appeals] Committee

should consider"); Leonardt v. Holden Business Forms Co., 828 F.

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claimant's right to have an attorney submit written argument on her

behalf undermined the appeals process in two important ways: (1)

claimant was denied the opportunity to submit evidence in support of

her position; and (2) claimant was denied the opportunity to

challenge the information the plan administrator relied on in denying

coverage); Brown v. Retirement Committee of the Briggs & Stratton

requirements" of a "full and fair review" satisfied as claimant had

"the opportunity to present as much documentary evidence as she

wished," the committee considered all the evidence submitted before

reaching its decision, and claimant was furnished with the minutes of

the hearing listing the evidence relied upon and contained comments

about the evidence.), cert. denied, 479 U.S. 1094 (1987).

Plaintiff correctly argues that she has a legal right to submit

written comments, documents, records and other information relating

to her claim for benefits. The regulations promulgated by the

Secretary of Labor to implement 29 U.S.C. §1133 require, among other

things, that "claims procedures of a plan providing disability

benefits will not . . . be deemed to provide a claimant with a

reasonable opportunity for a full and fair review of a claim and

adverse benefit determination unless the claims procedures comply

with the requirements of paragraphs (h)(2)(ii) through (iv) and

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(h)(3)(i) through (v) of this section."29 C.F.R. §2560.503-

1(h)(4) (emphasis added). Section (h)(2)(ii) provides that a

claimant shall have the "opportunity to submit written comments,

documents, records, and other information relating to the claim for

benefits." 29 C.F.R. §2560.503-1(h)(2)(ii). Section (h)(2)(iv)

requires the plan administrator "provide a review that takes into

account all comments, documents, records, and other information

submitted by the claimant relating to the claim, without regard to

whether such information was submitted or considered in the initial

benefit determination." 29 C.F.R. §2560.503-1(h)(2)(iv). The

regulations do not limit what maybe submitted by the claimant to the

plan administrator in support of her claim.29 C.F.R. §2560.503-

1(h)(2)(ii). Defendants "do not deny that plaintiff had a right to

submit relevant and pertinent documents relating to her claim for

benefits." Rather, defendants point out that the regulations relied

on by plaintiff were not in effect until January 1, 2002, after

plaintiff's application for benefits on September 21, 2001. The

documents at issue in the administrative record were submitted by

plaintiff on appeal on September 22, 2002.

Plaintiff argues that at no time did defendant qualify, reject

be excluded from the administrative record. Defendant offers no case

law to support its argument to exclude from an administrative record

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evidence that was considered by the administrator in rendering an

adverse benefit determination.

The parties agree that Provident had discretion to interpret

the provisions of the plan it administered. Therefore, reviewing

courts can disturb Provident's interpretations and actions only if

they are arbitrary and capricious. Miller v. United Welfare Fund, 72

F.3d 1006, 1070 (2d Cir. 1995). "A plan fiduciary’s decision will be

deemed arbitrary and capricious by a district court if it is 'without

reason, unsupported by substantial evidence or erroneous as a matter

of law.'" Neely v. Pension Trust Fund of the Pension, Hospitalization

and Benefit Plan of the Electrical Industry, No. O0CV2013 SJ, 2003 WL

21143087, (E.D.N.Y. Jan. 16, 2003) (quoting Miller, 72 F.3d at 1072.

When reviewing a denial of benefits under ERISA, the district court

may consider only the evidence available to the claims administrator

at the time the final decision was made. Miller, 72 F.3d at 1071.

Our Circuit Court has "implied that the district court should not

accept information from the insurer that was not part of the original

record unless the insured is instrumental in causing the information

to be added to the record." Zervos v. Verizon New York, Inc., 277

F.3d 634, 646 (2d Cir. 2002).

On appeal to the district court, Kinsman may challenge the

evidence from the administrative record relied on by the plan

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administrator, and cite evidence available to but not considered by

the plan administrator. Conversely, defendants may argue that the

evidence in the administrative record supported the plan

administrator’s decision, which should not be reversed by the

district court. See Black & Decker Disability Plan v. Nord, ---

U.S. ---, 123 S.Ct. 1965, 1970 (2003) (Comparing ERISA to the Social

Security program, the Court held that ERISA does not require plan

administrators to accord special deference to opinions of treating

physicians). The administrative record in this case is closed and

this Court finds no authority to delete any evidence that was

available for consideration by the plan administrator in rendering

its decision to deny disability benefits. See Zervos, 277 F.3d at

646 (declining to hear new evidence on appeal to the district court,

the Zervos court confined its review to the administrative record);

Miller, 72 F. 3d at 1071 ("a review under the arbitrary and

capricious standard is limited to the administrative record.").

CONCLUSION

This is not a recommended ruling. This is a discovery ruling

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and order which is reviewable pursuant to the "clearly erroneous"

statutory standard of review. 28 U.S.C. § 636 (b)(1)(A); Fed. R.

Civ. P. 6(a), 6(e) and 72(a); and Rule 2 of the Local Rules for

United States Magistrate Judges. As such, it is an order of the

Court unless reversed or modified by the district judge upon motion

timely made.

SO ORDERED at Bridgeport this ___ day of January 2004.

__________________________

HOLLY B. FITZSIMMONS

UNITED STATES MAGISTRATE JUDGE