REFUSAL TO REVIEW DOCUMENTS RESULTS IN REMAND

Carey v. Continental Casualty Company, C.A. No. 01-381-A (E.D. Va. Oct. 22, 2001 ) (Order Remanding Case for Administrator’s Refusal to Review Documents).

In Carey v. Continental Casualty Company,[1] the court remanded the case because the plan administrator refused to review documents the claimant submitted after the final decision.  Without citing it, at least one court has now held that Vega[2] means what the court says it means.[3]  In Carey, DynCorp employed plaintiff from February 1992 until she became disabled and unable to work in 1995.  Defendant was the claims administrator for the long-term disability plan and made all of the decisions regarding Plaintiff’s claim.  Plaintiff first claimed benefits from Defendant in September 1995.[4]

            Plaintiff began receiving long-term disability benefits in March 1996.  In September 1997, Defendant terminated the benefits and Plaintiff appealed this decision to an appeals committee.  In February 1998, the appeals committee reinstated the benefits.  In August 1998, Defendant again terminated the benefits, Plaintiff appealed that decision.[5]

In December 1998 the appeals committee rejected Plaintiff’s appeal and Defendant did not reinstate the benefits.  After the final denial of her claim, Plaintiff continued to seek and receive medical treatment and diagnoses.[6]

In December 2000 Plaintiff asked Defendant to review the evidence of these post-denial diagnoses as well as documentation that plaintiff did not submit before December 1998.[7]  Defendant argued that the time for submitting evidence for a claim review was long past, since more than two years lapsed between the final denial and the submission of additional evidence.[8]

            The court first determined the standard of review.  The language of the policy provided that the plan will pay benefits once the defendant received “due written proof of loss.”  Two federal district courts within the Fourth Circuit have held that similar language does not grant deference to a claims administrator.[9]  Judge Hilton held the language “due written proof of loss” did not grant a claims administrator discretionary authority, it simply addressed the manner in which a claimant presents claim.  Thus, the court applied a de novo standard of review.[10]

            To determine whether the defendant should have reviewed the evidence it received after the denial, the court again viewed the language of the policy.  Defendant’s policy had no clear time limit for submitting evidence of disability claims or submitting new claims.  The policy contained the following clause relating to when it will consider evidence in reviewing a claim:

Written proof of loss must be furnished to Us within 90 days after the end of a period for which We are liable.  If it is not possible to give the proof within 90 days, the claim 8s not affected if the proof is given as soon as reasonably possible.  Unless you are legally incapacitated, written proof must be given with 1 year of the time it is otherwise due.[11]

            Judge Hilton noted that this clause did not expressly prohibit any evidence after a certain point, rather, it allowed a claimant to submit proof of loss any time after 90 days provided that it was impossible for the claimant to give such proof within the 90 day period and that the claimant submitted such proof “as soon as reasonably possible.”[12]  Judge Hilton also determined this clause did not prohibit the submission of a new claim for injuries based upon the emergence of more substantial evidence.[13]

            The court determined that the written proof that the Plaintiff attempted to submit in December 2000 included tests, analyses and diagnoses that Plaintiff’s doctors completed after the final termination of benefits in December 1998.  The court found that Plaintiff could not have reasonably submitted such written proof before December 1998 because it did not exist at that point.  The court found that Defendant should have reviewed plaintiff’s documents as written proof hat plaintiff could not submit within 90 days and that plaintiff gave “as soon as reasonably possible.”[14]

            Judge Hilton determined that the defendant should have considered such evidence in making a determination of whether to grant benefits.  The court remanded the claim to the defendant for a review of the evidence.[15]

            Judge Hilton made the correct decision in this case.  Plaintiffs run into this problem especially if they attempt to exhaust their own claim and only hire a lawyer when it finally dawns on them that they must sue.  Plaintiff's counsel should routinely submit the evidence as the acquire it.  In addition, the counsel should summit a copy of Judge Hilton’s order  (along with copies of all other court orders supporting the claim.)  By submitting copies of the "unpublished" orders the claimants can circumvent various courts' prohibition on the consideration of unpublished decisions.  Since the administrative record contains the unpublished decision then the reviewing court must review it as part of the administrative record.  Since the plans' counsel know the orders are in the administrative record they should advise their clients to address the points raised in the unpublished order and attempt to distinguish the case.  Assuming, of course, that the denial is proper.