Patrick Torres v. UNUM Life Ins. Co. ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
__________
No. 03-3852
__________
Patrick Torres, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
UNUM Life Insurance Company of *
America, *
*
Defendant - Appellee. *
___________
Submitted: October 22, 2004
Filed: April 26, 2005
___________
Before MORRIS SHEPPARD ARNOLD, JOHN R. GIBSON, and SMITH, Circuit
Judges.
___________
JOHN R. GIBSON, Circuit Judge.
Patrick Torres appeals from the summary judgment order entered on behalf of
UNUM Life Insurance Company of America in this suit to enforce his rights under
a long-term disability plan issued and administered by UNUM. UNUM denied
Torres’s application for benefits. After exhausting his administrative remedies,
Torres brought this action under the Employee Retirement Income Security Act of
1974 (ERISA). Because the record reveals that UNUM abused its discretion in
denying Torres’s application, we reverse.
TORRES’S EMPLOYMENT AND MEDICAL CONDITION
Torres worked as a clinical perfusionist for nineteen years. A perfusionist is
a surgical room technologist who operates the heart-lung machine during
cardiopulmonary bypass. Dorland’s Illustrated Medical Dictionary (29th ed. 2000).
He spent the last six years at Rapid City Regional Hospital where he practiced under
the supervision of the primary surgeon in the operating room and, ultimately, under
the hospital’s Director of Surgery.
In May 1998, the hospital suspended Torres from his job because he had
suffered hearing loss. On May 19, Torres was examined by an audiologist at
Mountain Plains Audiology Associates. Torres reported that he had been gradually
losing his hearing since 1972, and he was very concerned about the loss and the
difficulty it caused in communicating. He had tried a hearing aid several years before
but had returned it because it amplified unwanted sounds and did not improve his
ability to hear in noisy settings. His examination revealed that he had a high
frequency impairment of moderate to moderately severe for his left ear and severe for
his right ear. The audiologist wrote, "With this man’s type and degree of hearing
loss, it would be typical for him to experience difficulty with speech discrimination
ability in situations where background noise is present." He recommended that
Torres try a hearing aid again, and Torres agreed.
One month later, Torres was also examined by an otorhinolaryngologist, Dr.
Gary Carlson. Dr. Carlson agreed with the recommendation of a hearing aid. Torres
obtained two hearing aids but eventually settled on wearing only one of them to avoid
"white light noise" but still be able to hear the doctors’ requests in the operating
room.
The record does not indicate when or how Torres’s 1998 job suspension ended.
The next event of note occurred in March 2000 when Torres was admitted to the
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hospital and diagnosed with congestive heart failure and cardiomyopathy. He
remained in the hospital for five days and, upon his discharge, was told not to return
to work until further notice. He began seeing a cardiologist, Dr. Drew Purdy, on
April 11, 2000. Dr. Purdy adjusted his medication, directed him to continue with the
exercise he had been doing, and discussed the benefits of getting Torres returned to
work at some point at a reduced number of hours and with realistic responsibilities.
At his next appointment three weeks later, Dr. Purdy opined that he should be able
to return to his regular job but not be on call. The record does not reveal when he did
return to work.
Torres continued to see Dr. Purdy throughout the time relevant to this appeal.
In April 2001, Dr. Purdy noted that the medications prescribed for his heart problems
intermittently caused Torres to get "somewhat lightheaded or dizzy." The following
month, just after his discharge from employment, Dr. Purdy adjusted Torres’s
medication and cautioned him that he may need to discontinue one type1 if he became
hypotensive or progressively lethargic or fatigued.
On April 5, 2001, Torres was called to a meeting with his department manager,
Marcia Taylor, to discuss three items: continuing concern over his performance,
specifically with respect to "keeping attention through the process of the case;"
concern as to his "overall safe clinical decision-making in crises times;" and a request
by a surgeon that he "not pump cases independently because of lack of response to
patient status at any given moment and concern of safe and timely perfusion
intervention during crises situations." Ms. Taylor urged him to consider other
employment opportunities. They met again on April 16, when she agreed to place
him for two weeks in a perfusion assistant position with fewer responsibilities and at
a lower salary. At the conclusion of that two-week period, they were to meet again
1
The medication is Prinivil which, according to pharmacy records, is an ACE
inhibitor used to treat congestive heart disease.
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"to sign [Torres’s] termination papers." Although the parties describe the termination
of his employment in different terms, the record contains an executed copy of his
notice of resignation which cites "plans for other job opportunities" as the reason for
Torres’s resignation.
TORRES’S APPLICATION FOR BENEFITS
Five days before he resigned his employment,2 Torres filed a claim for long-
term disability benefits under the UNUM policy.3 In it, he stated that he was unable
to work at his present job because he could not hear the surgeon correctly when he
was surrounded by "white noise" in the operating room. He listed two audiologists
and his cardiologist, Dr. Purdy, as having provided medical attention for his disabling
condition. One of the audiologists and Dr. Purdy each completed a Physician’s
Statement in connection with his claim. The audiologist reported findings of "severe
high frequency sensorineural hearing loss in both ears," and noted that Torres may
find it "difficult to hear with noise going on around him." He also indicated that
Torres had reached maximum medical improvement for his hearing condition. Dr.
Purdy listed restrictions against lifting, pushing, or pulling anything over fifty pounds
and noted that Torres is limited by fatigue, drowsiness, and blurred vision.
The UNUM policy defines "disability:"
You are disabled when UNUM determines that due to sickness or injury:
2
UNUM also argues that Torres was not covered under the plan once his
employment ended. The company did not deny his application on that account, but
it did state in its letter denying his appeal that he was not a covered employee. Torres
applied for the benefits while he was still employed by the hospital and he claims that
his disability prevented him from continued work as a perfusionist.
3
Torres enrolled in the long-term disability plan in 1996. Under its terms, the
employee pays the entire premium.
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- you are unable to perform with reasonable continuity and in the usual
and customary manner the substantial and material acts of your
occupation, business or profession; and
- you have a 20% or more loss in your indexed monthly earnings due to
the same sickness or injury.
UNUM denied Torres’s claim on August 2, 2001, after determining that he was not
disabled and unable to perform the material and substantial duties of his occupation
as a perfusionist. The record documents the information UNUM reviewed in
considering Torres’s claim and its handling of that information.
Bob Callahan is the UNUM employee who was in charge of Torres’s claim.
On June 18, 2001, he sought review of the claim by Diane Case, another UNUM
employee whose title is not identified. Three days later, she responded. She found
it difficult to assess whether the medical information would qualify him as disabled.
She agreed that the clinical data supported a significant diagnosis of hearing loss but
felt that a physician should address the level of impairment as related to his
occupation. Finally, she noted that she had not been provided with Torres’s cardiac
records and suggested that the cardiac unit review those. She referred the case to an
in-house doctor, Dr. Horne, for her opinion as to whether Torres’s hearing loss
appeared significant enough to support the limitations listed by the audiologist.
Dr. Horne did not reply, but instead the file contains a response from Dr.
Joseph Sentef of the family and occupational medicine unit. Although he does not
list the documents he reviewed, his one-page recitation suggests that he read the
audiologists’ reports and a memo concerning Torres’s April 5 meeting with his
supervisor. On June 29, Dr. Sentef wrote:
The claimant’s hearing problems occur at high frequencies with a noisy
background. The claimant was given two hearing aids to improve his
hearing in his job. I do not know if he works in the operating room with
a noisy background. It would appear that in most operating rooms the
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noise level would be low. He also noted in the medical records, that he
only wore one hearing aid so he could hear the surgeons. From that
statement alone, it appears he is able to hear the surgeons by using only
one hearing aid. This would point more towards a performance issue.
If his problems had been secondary to hearing, he would have worn both
hearing aids for maximum auditory effect. The claimant had worked
with his hearing aids during the past year. The issue of decreased
hearing had not come up from the hospital personnel over the past year
span. It would appear that his termination from his job was more of a
performance issue, based on objective findings in the medical records
along with audiogram analysis. It would appear the hearing loss is not
enough to warrant the restrictions and limitations.
Dr. Sentef was not asked to and did not address Torres’s cardiac condition. Based
only on Dr. Sentef’s assessment, Bob Callahan recommended on July 3 that Torres’s
claim be denied for lack of medical evidence supporting disability. In his
recommendation, he repeated Dr. Sentef’s speculation that Torres’s terminated
employment was "a performance issue not related to his condition but rather other
issues." An unidentified UNUM consultant wrote on the same sheet that UNUM
should obtain Torres’s cardiac records and have them reviewed by the cardiac unit,
and also get an occupational analysis to compare his restrictions and limitations with
the occupational requirements. UNUM then ordered Torres’s records from Dr. Purdy
and from his hospitalization, and they asked Dr. Purdy to complete a Physical
Capacities form. Dr. Purdy did not complete that form until several months later.
Bob Callahan apparently reviewed the cardiac records and once again
recommended that benefits be denied. On July 25, he wrote: "Based on additional
cardiac records received & reviewed it doesn’t appear condition precludes him from
performing own occ. Recommend denial based on medical does not support
disability." In the same handwriting as appeared on Callahan’s July 3
recommendation of denial, an unidentified UNUM employee recommended that the
claim be "walked in" to a cardiac physician to confirm if any cardiac restrictions and
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limitations are supported, and again recommended that they obtain an occupational
analysis if Torres was restricted to lifting no more than fifty pounds. That same day,
a "Medical Review Walk-in" form was completed by UNUM employee Shirley
Yeager. Ms. Yeager wrote: "The file documentation does not support [restrictions
and limitations] from a cardiac standpoint."
Dr. E.C. Curtis, a UNUM doctor who is a certified consultant in occupational
medicine, also reviewed Torres’s claim in a July 25 report. He stated that his report
was "based on a brief, selective review of documentation that appears to be the most
relevant to the issue of his functional abilities to perform his occupation." In less than
a page, he summarized the unidentified documents and concluded that Torres had not
"firmly established" the medical necessity for his continuing absence from work.
Based on Dr. Curtis’s report, Callahan once again recommended denial of Torres’s
claim. A UNUM consultant agreed with the recommendation, and Callahan sent the
denial letter on August 2. UNUM denied the claim because it found there was no
medical evidence to support Dr. Purdy’s restrictions and limitations, and no physical
limitations had been imposed as a result of his hearing loss "except if there is a lot of
noise around you."
Torres appealed the denial and submitted additional medical support for his
claim, including reports from an ENT doctor and Dr. Purdy, drug information sheets
concerning the medications prescribed to treat his heart condition, a description of his
working conditions in the heart surgery operating room, and a denial letter for health
insurance based on his cardiac problems. UNUM received these items on October
22.4
4
UNUM also received Dr. Purdy’s completed form and letter directly from Dr.
Purdy on October 5.
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The appeal documents included Dr. Purdy’s completed Physical Capacities
form in which he noted that the medications may lower Torres’s blood pressure and
cause lightheadedness, fainting, and dizziness. In a separate letter, Dr. Purdy also
noted that Torres had experienced episodic confusion and prolonged fatigue. Dr.
Carlson, the ENT who first saw Torres in 1998, examined him again in August 2001.
He opined that Torres could have significant problems hearing and understanding
because of the noise levels in the operating room, and he thought it no longer
reasonable for Torres to work as a perfusionist.
On October 11, Callahan asked Shirley Yeager to review Dr. Purdy’s letter and
Physical Capacities form and determine if his restrictions and limitations were
supported. In notes dated October 22, she erroneously concluded that the symptoms,
restrictions, and limitations Dr. Purdy described in his September documents were
new. Because she believed they were new, she concluded that they were not
supported. At the bottom of Yeager’s notes, Dr. Thomas Hashaway wrote three
sentences, the third of which concluded that there was no cardiovascular basis for
impairment. He also directed Callahan to Yeager’s summary in a note on the bottom
of Callahan’s October 11 review request.
On November 13, UNUM also requested that Dr. Laird Caruthers, an in-house
family practitioner, review the new medical records and offer his opinion on the claim
from a general medical standpoint and specifically answer whether Torres’s hearing
loss would preclude him from remaining in his occupation. Before Dr. Caruthers
conducted that review, Torres submitted an evaluation conducted by a certified
vocational evaluator at the Department of Veteran Affairs who expressed her
"professional opinion that [Torres’s] employment as a Perfusionist could have
significant liability consequences to him and his employer based on the knowledge
of his inability to hear directions clearly. . . . According to research, it is impossible
to ‘filter out’ the background sounds as the machines, etc. are required for life
sustaining of the patient." She also noted that Torres had been diagnosed with sleep
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apnea and concluded that this condition, along with his hearing loss, physical
limitations, and the side effects of his medications suggested that he was unable to
meet the demands of a perfusionist because of his significantly compromised abilities.
She concluded the assessment part of her report by writing:
Based on total assessment including review of medical information, job
requirements, etc., it is this counselor’s opinion that return to
employment as a Perfusionist is not feasible. The degree of hearing loss
and the significant consequences of inaccurate hearing/interpretation of
directions in the surgical setting could result in legal issues. [Torres]
also does not meet the physical requirements of the job based on the
limitations as documented by physician. Also of concern are the side
effects of his medications as described previously.
UNUM never conducted an in-house review of this vocational report.
On January 14, 2002, family practitioner Caruthers conducted the final UNUM
medical review that he had been asked to complete two months earlier. Dr. Caruthers
summarized the history of UNUM’s consideration of the claim but did not review any
of Torres’s medical records. He acknowledged the vocational report and described
it as concluding that Torres could not continue in his occupation because of his
hearing problems. He wrote:
There are performance issues and conflicts with the employer as well as
reference to a problem with alcohol use (? on the job) and a reference to
an unspecified legal problem. It might be useful to explore these issues
further with claimant’s employer. Claimant was fired then put in a claim
for disability. There does not appear to be medical documentation to
support a work capacity impairment. There is no evidence of any
change in his condition to warrant a sudden declaration of disability, but
I will defer comments about claimant’s ability to do his particular
occupation to our vocational consultant.
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Dr. Caruthers’s entry is remarkable for the innuendo, misstatements, and
unsupported conclusions it contains. This ultimate medical review in UNUM’s
consideration of Torres’s appeal contains at least four red flags. First, Torres’s claim
file contains no evidence of conflicts with his employer. Dr. Caruthers’s statement
is completely unsupported. Second, his speculation about Torres using alcohol while
at work is also unsupported. Alcohol is mentioned once in Torres’s medical records,
in the March 23, 2000, History and Physical taken upon his hospital admission which
states: "He has used alcohol in the past but stopped in July [1999]." When Dr. Purdy
sent copies of his medical records to UNUM, the documents included a May 8, 2000,
personal letter he wrote to a judge in Rapid City. The letter is a character reference
for Torres. It concludes with Dr. Purdy stating that he knows Torres feels deep regret
and considerable embarrassment over an episode which resulted in charges
concerning his alcohol use. Dr. Purdy did not explain his statement, and his
description of Torres’s medical condition makes no mention of alcohol use.
Once in UNUM’s file, Dr. Purdy’s letter was flagged with an arrow and given
great attention. Dr. Curtis, the UNUM occupational medicine doctor, apparently used
it as the basis for a comment in his July 25, 2001, review. He wrote: "Incidentally,
as a matter of interest, in view of information in the chart concerning problems Mr.
Torres faces related to alcohol abuse, one wonders whether that may have been an
element in the development of cardiomyopathy per se and/or a factor in his
performance difficulties." The record contains no mention of alcohol abuse by
Torres, and UNUM did nothing to investigate any possible relationship between
alcohol use and Torres’s heart problems. In her October 22, 2001, records review,
Yeager repeats the statements concerning alcohol use from Dr. Purdy’s letter. At the
bottom of Yeager’s notes, family practitioner Hashaway wrote: "The improving
ejection fraction suggests that the claimant had a reversible etiology for his
congestive cardiomyopathy (? alcohol)." Again, UNUM did nothing to try to
determine if there was any causal relationship between Torres’s alcohol use and his
cardiac problems.
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The third red flag in Caruthers’s review is the sequence and description of
Torres’s application for benefits and end of his employment. Caruthers states:
"Claimant was fired then put in a claim for disability." The record shows that Torres
filed his claim with his employer as directed on April 26, 2001. Once the
administrator received supporting documents such as Torres’s release of records
form, physicians’ statements, and the employer’s statement, it forwarded the entire
package to UNUM. UNUM originally recorded Torres’s date of disability as April
16, 2001, but, after learning that his employment continued until the end of the
month, UNUM changed Torres’s date of disability to May 1, 2001. Moreover,
UNUM received copies of Torres’s notice of resignation and the hospital’s form
acknowledging that act. There is no employment record in the file that suggests
Torres was fired.
The final problem area in Caruthers’s summary concerns Torres’s vocational
prospects. In spite of Caruthers’s inconclusiveness, UNUM did not refer Torres’s
appeal to its vocational consultant. UNUM conducted no review of Torres’s
vocational report.
Following the Caruthers report, UNUM did not seek any further medical
evidence concerning Torres’s cardiac problems. UNUM conducted one last inquiry
concerning Torres’s performance in a February 7, 2002, telephone call to the
hospital’s human resources department. A handwritten note in the file reports that the
hospital employee stated "off the record there may have been a mental issue," and that
Torres blamed his performance on health issues but not on hearing problems. That
is the extent of UNUM’s inquiry into Torres’s job performance throughout their
consideration of his claim and appeal.
That same day, UNUM sent Torres a letter denying his appeal. The letter was
devoted primarily to repeating UNUM’s handling of the claim, but its description of
the review UNUM conducted when Torres appealed the denial of benefits is
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inaccurate. The letter recited that UNUM received the new medical and drug
information Torres submitted on October 22 as part of his appeal and that it "was
reviewed in conjunction with his entire claim file" by a board certified
internist/cardiologist on October 23, 2001. That was the review by Hashaway. He
did not review any of the new information, however, as UNUM did not begin
processing the new documents until October 31.
UNUM’s denial letter continued with an excerpt from Caruthers’s January 14
medical review and concluded by informing Torres that he did not meet the definition
of disability because "restrictions and limitations are not supported to the degree to
preclude performing in his occupation." In addition, UNUM informed Torres that he
was not a covered employee and was thus ineligible for disability benefits because
he had been fired and no restrictions and limitations were supported as of that date.
UNUM’s denial of Torres’s appeal marked the end of his administrative
review. Torres filed this action two months later.
I.
We review de novo the district court’s grant of summary judgment while
viewing the record in the light most favorable to Torres. We also review de novo the
district court’s determination of the appropriate standard of review of the
administrator’s denial of benefits. Barnhart v. UNUM Life Ins. Co. of Am., 179 F.3d
583, 587 (8th Cir. 1999).
The district court reviewed UNUM’s decision under the abuse of discretion
standard that applies when the plan at issue allows the administrator the discretionary
authority to determine a claimant’s eligibility for benefits. See Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Torres concedes that the UNUM
plan grants such authority but argues that a less deferential standard is appropriate
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under Woo v. Deluxe Corp., 144 F.3d 1157, 1160-61 (8th Cir. 1998), because he
presented evidence demonstrating that a palpable conflict of interest and a serious
procedural irregularity existed which caused UNUM to deny Torres benefits. The
conflict of interest he asserts is a financial one because UNUM administers and funds
the long-term disability plan in which Torres was enrolled. The procedural
irregularity he alleges is UNUM’s failure to exercise proper judgment in its
deliberations as demonstrated by the shortcomings in its medical and vocational
review.
UNUM admits that it serves as both insurer and administrator of the long-term
disability plan at issue. We have held this to be palpable evidence of a conflict of
interest. Farfalla v. Mut. of Omaha Ins. Co., 324 F.3d 971, 973 (8th Cir. 2003);
Phillips-Foster v. UNUM Life Ins. Co. of Am., 302 F.3d 785, 795 (8th Cir. 2002);
Schatz v. Mut. of Omaha Ins. Co., 220 F.3d 944, 947-48 (8th Cir. 2000). But see
McGarrah v. Hartford Life Ins. Co., 234 F.3d 1026, 1030 (8th Cir. 2000) (wrong to
assume financial conflict of interest from fact that plan administrator is also insurer).
Torres also alleges substantial procedural irregularities in UNUM’s
consideration of Torres’s claim. Torres points to several inadequacies: UNUM
sought no independent medical review, did not consider Torres’s earlier suspension
for hearing loss, did not evaluate the side effects of his heart medications, did not
have a review performed by a vocational consultant, and provided no theory for why
Torres suddenly became unable to perform his job other than an alcohol abuse theory
unsupported by the record. UNUM asserts that it conducted a complete and
appropriate medical review and denies that its decision had anything to do with
alcohol use.5
5
In its brief, UNUM’s counsel adopts a much different tone than that used in
the company’s internal memos. In the memos, a mention of past alcohol use in a
personal letter from Dr. Purdy was inflated to statements that Torres could be abusing
alcohol while at work. The brief denies that alcohol was the basis for the denial of
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The UNUM plan imposed no obligation on the administrator to obtain an
independent medical review and case law contains no such absolute requirement.
Torres’s earlier suspension for hearing loss may have been of interest, but the medical
issues underlying the suspension are the only relevant facts. UNUM was not required
to articulate a theory for Torres’s inability to perform his job, but rather was to
consider the evidence Torres submitted to determine whether it proved him disabled.
UNUM’s failure to acknowledge the side effects of the prescription drugs
Torres was taking for his cardiac condition and failure to obtain a vocational
evaluation are significant omissions. As Torres explained, his ejection fraction had
improved because he was taking the medications, but the price he paid for improved
heart function was that he suffered side effects including dizziness, fatigue, and
lightheadedness. Dr. Caruthers specifically excluded the drug information sheets
from his January 14, 2002, medical review because he believed Dr. Hashaway
(UNUM’s cardiologist) had already discussed them. Hashaway made his three-
sentence review of Torres’s medical records without having seen the drug information
sheets. Because the side effects of necessary medication caused many of the
problems that kept Torres from being able to perform the job of perfusionist, UNUM
had an obligation to address those effects.
Likewise, as its employees noted on at least three occasions throughout the
review process, including a comment by Caruthers in UNUM’s final medical review,
UNUM could not evaluate Torres’s ability to perform his occupation without the
opinion of a vocational consultant. UNUM offers no reason for its failure to obtain
such an evaluation or to respond in any way to the comprehensive vocational
evaluation Torres submitted.
benefits because "alcohol disabilities are not even excluded in the Plan." The
possibility that alcohol problems could be a basis for awarding long-term disability
benefits explains the inconsistency.
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UNUM’s policy defines disability in relation to a participant’s ability to
perform "with reasonable continuity and in the usual and customary manner the
substantial and material acts" of the participant’s occupation. UNUM did nothing to
determine the "substantial and material acts" of the occupation of perfusion,
particularly with regard to the noise level attendant to the kind of surgical rooms in
which perfusionists work. UNUM’s failure to consider the effects of Torres’s
medication and to assess his ability to perform the substantial and material acts of
perfusion are serious procedural irregularities.
The existence of a palpable conflict of interest and serious procedural
irregularities does not necessarily mean that we will apply a less deferential standard
of review. Torres must also satisfy the second part of the Woo test which requires
him to show how the conflict of interest or serious procedural irregularity caused a
serious breach of UNUM’s fiduciary duty. He would do so by showing that the
conflict or irregularity has "some connection to the substantive decision reached."
Woo, 144 F.3d at 1160-61. We have recognized that this requirement "presents a
considerable hurdle" for plaintiffs, Barnhart, 179 F.3d at 588 n.9, and we are aware
of only two cases that have satisfied the second part of the Woo test.
In Morgan v. Contractors, Laborers, Teamsters & Eng’rs Pension Plan, 287
F.3d 716 (8th Cir. 2002), we determined that trustees of a pension plan violated plan
provisions by withholding relevant information from the claimant before his appeal
hearing and denying his claim based on their own "preconceptions and personal
observations." 287 F.3d at 722-23. This violation was a procedural irregularity, and
we concluded that it caused a serious breach of the trustees’ duty to the claimant
because they voted based on their predispositions rather than objectively analyzing
evidence and employing proper judgment and reflection based on such evidence. Id.
at 723. We reviewed the trustees’ decision de novo, reversed the judgment, and
remanded with directions to enter judgment in favor of the claimant. Id. at 723, 725.
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In Harden v. Am. Express Fin. Corp., 384 F.3d 498 (8th Cir. 2004), the
claimant applied for long-term disability benefits and was denied initially and on
appeal. MetLife, the plan administrator, required him to apply for Social Security
disability in conjunction with his application for plan benefits, and his Social Security
application was successful. Id. at 499. MetLife led Harden to believe that his Social
Security medical records were part of the administrative record it was considering,
but in fact the administrator had never obtained those records. Id. at 499-500. We
concluded that its failure amounted to a serious procedural irregularity that raised
significant doubts about the decision to deny benefits. Id. Although the Harden case
does not set forth how the facts satisfied the second part of the Woo requirement, we
concluded that Woo’s less deferential sliding-scale standard of review was
appropriate. We remanded with directions that the district court in turn remand to
MetLife with instructions that it obtain the Social Security records and reconsider the
claim on the expanded administrative record. Id. at 500.
Torres presented no evidence that UNUM denied his claim because it was
financially advantageous for it to do so. Accordingly, he has not shown that
UNUM’s financial conflict of interest had a sufficient connection to the decision
reached to trigger a departure from the abuse of discretion standard. The procedural
irregularities we have discussed present a much closer case of a serious breach of
UNUM’s fiduciary duties. However, cognizant of the considerable hurdle plaintiffs
have in reaching this standard and realizing that virtually anything connected to an
administrator’s denial of benefits could be said to have "some connection to the
substantive decision reached," Woo, 144 F.3d at 1161, we conclude that UNUM’s
decision is not subject to less deferential review.
II.
Review of an administrator’s decision under an abuse of discretion standard,
though deferential, is not tantamount to rubber-stamping the result. On the contrary,
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we review the decision for reasonableness, which requires that it be supported by
substantial evidence that is assessed by its quantity and quality. Phillips-Foster v.
UNUM Life Ins. Co. of Am., 302 F.3d 785, 798 (8th Cir. 2002); Donaho v. FMC
Corp., 74 F.3d 894, 899-901 (8th Cir. 1996). Our review employs five factors:
(1) whether the administrator’s interpretation is consistent with the goals
of the Plan; (2) whether the interpretation renders any language in the
Plan meaningless or internally inconsistent; (3) whether the
administrator’s interpretation conflicts with the substantive or
procedural requirements of the ERISA statute; (4) whether the
administrator has interpreted the relevant terms consistently; and (5)
whether the interpretation is contrary to the clear language of the Plan.
Shelton v. Contigroup Cos., Inc., 285 F.3d 640, 643 (8th Cir. 2002) (citation omitted).
UNUM’s failure to consider the side effects of medicine Torres took as prescribed for
his cardiac condition and its failure to conduct a vocational evaluation resulted in a
decision that can be described as rendering Plan language meaningless or as contrary
to clear language of the Plan. The UNUM Plan defines disability as an inability "to
perform with reasonable continuity and in the usual and customary manner the
substantial and material acts" of the claimant’s occupation. UNUM asked for and
received from the hospital a copy of Torres’s job responsibilities as a clinical
perfusionist.6 The hospital lists six major responsibilities for the position which
include providing "for the delivery of patient care through the collection of health
data and on-going patient assessment with identification of pertinent problems and
needs," demonstrating the "skill and judgment necessary to implement procedures and
documents appropriately," and coordinating and promoting "continuity of patient care
6
The Plan also states, "UNUM will look at your occupation as it is normally
performed in the national economy, instead of how the work tasks are performed for
a specific employer or at a specific location." The record contains no evidence that
UNUM conducted independent research into the average working conditions of a
perfusionist, and nothing suggests that the conditions and requirements at the Rapid
City hospital were outside the norm.
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through clear communication." The responsibilities are weighted, with the highest
weight assigned to the implementation of procedures and documents and the second
highest assigned both to delivery of patient care and clear communication.
Torres submitted evidence to UNUM that his cardiac medications caused him
to experience fatigue, confusion, dizziness, and lack of concentration while he was
at work. The medications were essential to treat his heart problems, but the demands
of his job made it impossible for him to take them in a timely manner. Although his
hearing was somewhat improved with the use of hearing aids, Torres listed the
multiple machines at work in a cardiac operating room and described how the noise
and his position in relation to the surgeon made it very difficult for him to hear. His
treating ENT doctor recommended that he be trained in another area because of the
noise level attendant to the job of perfusionist.
UNUM had no medical evidence from Torres’s treating physicians that
contradicted these assertions, nor did it send Torres to be examined by any other
physician. In other words, the only medical evidence in the record supported Torres’s
claim that he was unable "to perform with reasonable continuity and in the usual and
customary manner the substantial and material acts" of the job of perfusionist.
UNUM likewise did not evaluate the comprehensive vocational assessment
Torres submitted, nor did it conduct its own vocational assessment in spite of its in-
house doctor’s assumption that it would do so before rendering a decision on Torres’s
appeal. According to the certified evaluator, Torres’s inability to clearly hear the
surgeon’s directions created significant liability issues for him and his employer.
Using the Classification of Jobs, a publication based on data from the Department of
Labor, the evaluator concluded that it would not be feasible for Torres to return to the
occupation of perfusionist. The evaluator’s use of the Classification of Jobs presents
the only record evidence of the occupational aspects of a perfusionist. Through its
inaction, UNUM completely failed to comply with the Plan’s requirement that
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UNUM consider Torres’s ability to perform his occupation "as it is normally
performed in the national economy."
The third factor we consider in an abuse of discretion review is whether the
administrator’s interpretation conflicts with the substantive requirements of ERISA.
ERISA requires all plan fiduciaries–a term that includes plan administrators–to
discharge their duties in accordance with the plan documents. 29 U.S.C. §
1104(a)(1)(D). UNUM failed to discharge its duty to assess Torres’s eligibility for
benefits when it ignored evidence that was directly related to the Plan’s definition of
disability.
The record reveals another manner in which UNUM abused its discretion in its
review of Torres’s claim. Although there was absolutely no evidence that Torres had
work-related or medical problems due to alcohol use, UNUM seized upon a private
letter that mentioned his regret and embarrassment over an incident that resulted from
his use of alcohol. Torres’s employment records give no suggestion that his work
was ever affected by alcohol use. Nonetheless, UNUM began writing of Torres’s
"alcohol abuse problems" as "a factor in his performance difficulties," which by the
time of its last review grew to an innuendo that Torres had a problem with alcohol use
on the job and a conclusion that he was discharged from employment because of
performance issues7 and conflicts with his employer. Similarly, although Torres’s
medical records contain absolutely no mention of alcohol use as a factor in his health,
UNUM’s in-house cardiologist suggests in his three-sentence review and opinion that
alcohol was the "reversible etiology for [Torres’s] congestive cardiomyopathy."
7
The performance issues noted in Torres’s employment records related
specifically to attention, decision-making in crises times, and lack of response. The
medical evidence indicates these were a result of Torres’s hearing problems and side
effects of his cardiac medications.
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UNUM conducted its review of Torres’s claim without probing issues directly
relevant to the Plan’s definition of disability and, in the process, included baseless
speculation that became the foundation of its conclusion that Torres did not qualify
for benefits. UNUM’s decision is not supported by substantial evidence and cannot
be affirmed. See Donaho, 74 F.3d at 901 (where decision lacks record support or
evidence in support does not ring true and is overwhelmed by contrary evidence,
administrator’s decision is unreasonable).
CONCLUSION
UNUM abused its discretion as administrator of its long-term disability plan
when it denied Torres’s benefits claim. The record contains abundant evidence that
because of sickness Torres was unable to perform the substantial and material acts of
his job with reasonable continuity in his usual and customary manner. This is not a
case that requires expansion of the administrative record. Accordingly, we reverse
and remand to the district court for further proceedings consistent with this opinion.
Our decision makes it unnecessary to consider the evidentiary issue Torres raised.
REVERSED AND REMANDED.
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