*1 may full plaintiff part-time employees court faulted share While the district evidence, it not first producing purposes, for not did the status of a CHI for FTCA determine that defendants had met their the individual doctor defendant never as- discovery obligations produce relevant serted that he did so share. This itself plaintiff evidence to before dismissed questions raised about the status CSILI required action. Basic fairness the court aas CHI. not to act on the motion to dismiss when pro- We reverse and remand for further plaintiff, entitled court order to rele- ceedings opinion. consistent with this discovery, given
vant had not been are Costs awarded Cirino. Indeed, discovery. the defendants had produce times to evi- been ordered three
dence, including pertinent evidence to this
“jurisdictional question,” yet they did
not do so. There are no answers to inter-
rogatories anywhere in the record plain-
case.2 The effect dismissal of
tiffs action is to reward defense counsel Bradley BRIGHAM, Plaintiff, B. discovery obligations. who flout their We Appellant, encourage system do not that creates discovery incentives to violate the rules. v. plaintiff protested several times CANADA, LIFE SUN OF premature
that it was act on the motion Defendant, Appellee. given dismiss because she had not been No. 02-1237. course, discovery. say Of if we could discovery sought clearly irrelevant Appeals, United States Court of issues, any to the dismissal then error First Circuit. would be harmless. But we cannot. First, 7, the district court found the discov- Heard Nov. 2002. ery permissible specifically ordered 28, Decided Jan. production jurisdictional discovery. Further, plaintiff says discovery she needs whether,
because it is not clear at the time 1998,
of the incident in CSILI maintained status, if
CHI even it had CHI status at point.
some earlier One of the documents
CSILI filed makes it clear there condi- are
tions which must be met to maintain cover-
age; plaintiff coverage, contends that if it earlier, may
existed have been revoked.
Plaintiff oddity also notes the that while argument
2. At erencing oral CSILI produced required said documents the documents 24, 33(d). Further, attached to its November 1999 motion to by Fed.R.Civ.P. CSILI discovery production. dismiss constituted its discovery respond July ordered to only Not so. Not is the assertion incredible 8, 2002, February long after it had light interrogatories sought, of what the submitted the documents in connection with provided plaintiff CSILI has never its 1999 motion. interrogatories, answer to much less one ref- *2 Background1 I. whom John C. Bonifaz with Cristobal Boni- of Cristobal Law Offices Bonifaz and 47-year-old man Appellant Brigham, a appellant. faz were on brief a motor- paraplegic since who has been *3 16, hired he was cycle accident when Joseph whom M. Symonds with Jay P. employment as an spring in the of 1990 O’Connell, Mirick, DeMallie Hamilton organiza- a social services coordinator for appellee. Lougee were on brief & an advisor on the tion. He served as R. and Melvin Mary Signorille Ellen individuals, handicapped employment curiae for amicus Radowitz on brief every day. visiting multiple employers AARP. required frequent transfers The travel back, wheelchair and
from his car to his job years the re- and after two on LIPEZ, Judge, COFFIN Before Circuit chair led twisting lifting of his peated STAHL, Judges. Senior Circuit pain that left side and back significant as muscle family diagnosed his doctor COFFIN, Judge. Circuit Senior strain. claims that Appellant Bradley Brigham plan by employee benefit issued violated the appellee Sun Life Canada employer provides Life to Sun Security Income Employee Retirement stages long- two for both short-term and (“ERISA”), 29 Act of 1974 U.S.C. disability Long-term bene- term benefits. 1001-1461, long- §§ it when terminated sixty the first months fits are available for disability Brigham had term benefits. if totally disabling prevents illness it of a years receiving benefits for five been “all employee performing from inability perform regu- based on his occupation” regular material duties of his period, time occupation. lar After that added). that initial five- (emphasis After only plan under his benefits were available eligible for year period, employee performing if he from was disabled pre- only disabling benefits if the condition or could be- occupation for which he was engaging “any occupa- him vents from concluded that qualified. come Sun Life reasonably tion for which he is or becomes work, sedentary and the capable he was education, training experi- qualified by insurer’s de- district court found added). (emphasis ence” indisputably supported termination Appel- in the record. substantial evidence 1993, developed a res- In June that the court used argues appeal lant on piratory triggered tract infection that se- and, wrong even under the standard coughing spells, exacerbating his left vere used, wrong result. standard reached pain forcing stop him to work. side dif- Although judgment might our disability short-term benefits He received deciding on fered from Sun Life’s were we for six months and then December slate, the record before us we on his applied long-term clean benefits based summary In an Attend- are constrained to affirm the severe back and side strain. Disability Physician’s ing Statement judgment. (D.Mass.2002). liberally 428-434 As the district from the well 1. We have borrowed noted, background section of the dis- stated factual id. at the facts are essen- court see Brig- opinion trict court's in this case. See tially undisputed. Canada, F.Supp.2d ham v. Sun Life of (“APS”) 21,2Dr. cal dated December Christo- information contained in the record. pher opined French was un- We summarize below Dr. French’s his own because “the able during five-year period the relevant frequent stress of transfer from car [his] review other details surrounding Brig- physical symptom.” intolerable He [is an] receipt ham’s of benefits. impair- characterized — response March to a re- 1994- 4”
ment as “Class out of five levels of quest updated Life for informa- progressively physical capaci- more limited tion, Dr. French sent a letter dated March ty, signifying limitation of “[m]oderate 31 that stated: capacity; capable functional of clerical/ad- *4 [Brigham] paraplegic is a (sedentary) Al- who had activity.” ministrative developed Dr. left side though Brigham hip pain French stated that sec- disabled, ondary he also observed that frequent [the] car to chair “good he was a candidate for more seden- transfer his work requires. These tary get work but do this he must symptoms improved have following retraining.” graduated Brigham several months of leave from work. I colleges both Williams and Amherst believe, therefore, that he should February a In degree. holds master’s avoid situations that require frequent 1994, approved payment Sun Life car to chair transfers. stage long-term disability the first bene- — July 1994 n Sun Life conducted an occupation” provision. fits under the “own personal Brigham, extensive interview of He received those benefits until December the notes the insurer’s file state 1998, sixty when coverage months of that he “indicated that he would have out, ran although temporarily Sun Life position company sumed another with his in January cancelled benefits 1995 based road, if it being did not involve out on the on its belief that could at that they had no work for him.” The notes point job. regular return to his Brigham reported also state that applying appealed, investigation, and after further to law school and indicated an interest occupation” “own Sun reinstated the that, earning a degree among law so other benefits in March 1995. endeavors, represent he could individuals During years in the five which that, with disabilities. He further if stated long-term disability payments, received proved law demanding, school too he Dr. French submitted at least six addition- earning teaching would consider certifi- reports al sup- APS after the one filed in cate, noting previously that he had worked
port original application for benefits. private as a in a teacher school. this sufficiency Because case turns on the — 1994 n Brigham’s ability of the evidence of October The third APS from work, French,3 closely we reported reviewed the medi- Dr. dated October two-page identify 2. The APS is a standardized form 3. Both the district court and Sun Life APS, by the October submission as the third al- provided the insurer that includes sections though it was at least the fourth such state- Treatment,” "Diagnosis,” "Prog- "Dates of Brigham stopped ment since work in June ress,” "Physical Impairment,” "Prognosis,” had submitted two state- typically and "Rehabilitation.” The sections ments from Dr. in the summer of French answers, offer several alternative with boxes request 1993 in connection with his for short- response. to be checked for the chosen The disability appears term benefits. It that one provides general space unguid- form also of those earlier is considered the ed "Remarks.” sequence "first” APS discussed possibility “the occupation because un- his own remained condition Brigham’s recurring in and of itself does problem increased physician changed, but disabling to Class condition.” impairment constitute a of his not level capaci- French, functional limitation of Life’s claims informing “[s]evere so (sedentary) activi- minimal ty; incapable condition manager “[i]f also wrote labeled “Rehabilita- ty.” exist, In the section objective medical infor- continues tion,” however, indicated that Dr. French disability support the continued mation impair- despite his necessary.” getting involve into if did not ment above, company reversed As noted car, and he recommended out of a reinstated bene- position its retraining. clarifying letters from after it received fits — 1995. In a November 1994—March stating Brig- French and Perri Drs. 9, Dr. French stat- November letter dated with pain would “no doubt” return ham’s pain back had subsided ed that of his car. repeated transfers into and out stopped working, and ex- since he had previously insurer had confirmed previ- that a return to his pressed concern *5 have to employer Brigham that would his frequent travel— position its ous —with day if he to ten times a transfer five again it He recom- bring back. previous job. resumed his in a placed “be situ- mended that — Brigham responded to June 1995. getting in and require that does not ation impact from Life about the inquiry Sun In a day.” car all December out of the by stating disability daily on his life of his representa- Life Sun conversation ... in funda- “severely that he is limit[ed] tive, reported that Dr. French ways.” mental He wrote: improved and his muscle condition example, very painful it is for me For later, Brig- A week strain had resolved. onto the my transfer wheelchair told another caller from Sun Life ham bed, toilet, bathtub, into into the or al- pursued schooling either he hadn’t result, my require car. As a I into According to Sun Life’s ternative work. part all or of these assistance to notes, Brigham explained that “he has dif- transfers. ficulty mobilizing himself and wheel- [his] — 1995. Dr. French submit- October during the periods chair for extended reported Brigham’s a fourth ted APS Life’s medi- day.” On December Sun designated unchanged, condition as but he consultant, nurse, Speed, a cal Maureen impairment as both Brigham’s physical clarify Dr. French to the as- spoke with again 5. The doctor de- Classes Nov. 9 letter. sessment the doctor’s disabled, Brigham as information, scribed includ- Based on Dr. French’s section that he noted the “Remarks” ing a statement return appro- re-enter the “with job could workforce previous “might” trigger recur- trans- priate part-time and available pain, Life concluded that he rence Sun performing portation.” longer no was disabled from actually page of the December Our discussion considers the is the first district court. APS, Decem- appendix seven that were filed between which elsewhere in the is 1998. ber 1993 and December stamp shown with a date of December We add one further note about these re- reason for the double- 1998. Whatever the ports. The reflect confusion about an briefs dating, February clear that the document appears stamped APS that to be as received in is not a new APS. however, February page, stamped 1999. The — January-February 1996. manipulating. He also listed Brigham as reported daily bend, that his activities remained able to twist body, push, pull, pain grasp “limited” because muscle and reach between 1% and 33% of longer independently no able to he was during day, the time and stated that he transfer into or out of his current vehicle. could lift a pounds. maximum of ten Noting lift-equipped that he needed a van Asked on form whether attempt “in order to either re-enter the limitations, work within these Dr. French acquire appropriate profes- work force checked the for “part box time” and added re-training,” proposed sional he that Sun “possibly.” gave response He the same buy disability coverage out his so that question whether could work purchase he could a van as soon as possi- occupation part another time. rejected Brigham ultimately ble. as inade- month, That same completed a $52,000 quate approximately Life’s Questionnaire” Activity “Claimant in which settlement offer. explained large portions he day of his — November French’s fifth were consumed eating, resting, and again reported Brigham’s progress APS personal matters of hygiene. shopped He “unchanged,” but this time he classified his others, twice week with sometimes made physical impairment as Class 4. The doctor phone calls related to his volunteer work joba stated that modification would enable non-profit organization, for a read the extent,” Brigham to “[t]o some and newspaper news, and watched television “pa- in the “Remarks” section he wrote: help sometimes ran errands with the upper tient has body transporta- use weekends, — of a neighbor or friend. On he *6 tion to and a from worksite would need to frequently more reported visitors. He addressed, as would assistance with that his balance in his wheelchair was transfers.” “poor[,j so I can’t do much sitting from a
— position,” and he noted that his back and June 1997. Dr. French submitted neck become stiff sitting from in the APS, again his sixth in which he checked wheelchair, requiring a short afternoon off the indicating Brigham’s boxes nap. He stated: unchanged condition was and that had a he 4 impairment. impairment Class In the I am my able to transfer into and out of section, he noted that “[transferring great is car but it takes a energy deal of painful often and my joints therefore difficult and and usually and muscles ache Transportation prob.” slow. try The doc- as a result. If I to do I too much “yes” tor usually get checked neither nor “no” in the can’t easily out of bed section that asked if following day. a modification enable to work with his — October-December 1998. On Octo- did, however, impairment. He check “no” ber Sun Life sent a letter if Brigham when asked was now explaining sixty that his months of “own “[a]ny job.” disabled from other occupation” expire benefits were about to — January that, Dr. receiving long-term French’s sev- and to continue repeated “unchanged” enth APS disability payments, pro- condi- he would need to impairment disability tion and Class notations. In vide evidence total from “Limitations,” occupation. eighth section labeled Dr. French Dr. French’s and final reported could sit again, 5-10 APS followed. Once Dr. French hours, day, hours a normal drive 1-3 Brigham’s described condition as un- and use his hands for grasping changed designated and fine im- totally disabled. permanently earli- that he was repeated his 4. He
pairment as Class Review ability on the Medical Brigham’s The notation regarding final assessment er drive, judgment of well as his he’s not restricted “appears to sit form stated: twist, pull and push, ability to Brigham’s sedentary work.” es- percentage his earlier (repeating reach — The insurer se- June-August 1999. maxi- timates, Brigham’s increasing Analysis Transferable Skills cured a objects from 33% of ability grasp mum (“TSA”), completed by a voca- which day). only day to 66% on Dr. primarily based tional counselor section from the Limitation changes other con- report The TSA reports. French’s APS, any nota- January he omitted on the seden- cluded (one of ability to bend tion on heading “Function- tary Under the work. “0%”), neither and checked the choices was report, received on June Capacities,” the al beside entries “yes” nor “no” 15, stated: manip- grasp ability to use his hands He also left blank precision. ulate with day five to ten hours may He work lifting Brigham’s maximum space for and fine grasping limitation on without capacity. may drive from one manipulation, daily. He must avoid all capa- hours three In the sections balancing, kneeling, Dr. stated prognosis, squatting, climbing, French bilities However, capable at all” may was “not he be re- crawling. working bend, the limitations noted occasionally within twist his quired to form, capable of another that he was not pull, and reach. body, push, basis, and occupation on even Brigham’s lift- also noted that report (em- “permanently that he was disabled” pounds. ten The voca- ing limitation phasis original). that these limi- concluded tional counselor — response January-March 1999. In equivalent” to “approximately tations were medical request for more to Sun Life’s sedentary work contained the definition information, January sent French Titles: Dictionary Occupational in the *7 other of his handwritten notes and copies up Sedentary Exerting Work March, a from his file. In Sun occasionally [up to pounds of force 1/3 out a Life medical consultant who filled negligible ... a amount of the or time] form referred to a few Medical Review lift, carry, push, ... frequently force French’s difficult-to-read items Dr. objects, move includ- pull, or otherwise notes, July 1998 including his handwritten body. Sedentary human ing the swimming ev- Brigham was statement that time, most the but sitting involves day May 1998 statement ery walking standing for may involve “finishing new building [a] was are seden- periods brief of time. Jobs that Dr. house.” The consultant noted walking standing are re- tary if reported Brig- French June 1997 all quired only occasionally and other any totally disabled from ham was not sedentary criteria are met.4 occupation in December 1998 stated wrote the dictionary ly," vocational who Although definition included the counselor 4. push, report recognized ability to walk or stand one-third time, only similarly "occa- analysis adjusted pull, move to ac- reach skills addition, opin- sionally” French’s Brigham’s paraplegia. Dr. count for —consistent between ability ion he could do such movements although definition includes "frequent- of the time. of force negligible exert a amount 1% 33% jobs report twenty-one identified present.” The cember 1998 to the at qualified, which least sev- administrator also sent a letter to Dr. required eral of which no travel other than French, August dated asking “any workplace, to and from the and involved specific any objective measures or test re- primarily telephone verbal or communica- your sults in may provide file that informa- computer tion and skills. tion on the nature of his condition since day
On the it received the TSA June 1992.”6 Dr. subsequently French report, Brigham’s attorney Sun sent spoke by phone with the claims adminis- reporting Brig- letter its conclusion that trator and then sent back a copy of her ham totally was not disabled from letter with a handwritten notation at the occupation longer eligible and thus was no bottom indicating that a neurological eval- A among for benefits. series of letters uation would be obtained to answer Life, Dr. French and attor- questions raised in the letter.7 ney Dr. followed. French sent a brief — September 1999-January By 2000. contesting letter Sun Life’s conclusion.5 appeal period, the end of the Brigham had In August, Sun Life’s claims administrator following submitted the sup- materials in attorney appeal informed the that an (1) port of his claim: Dr. French’s June quired “objective submission medical ev- 28th letter disagreeing with Sun Life’s de- support continuing idence in total dis- termination that fully was not ability,” explaining that such evidence disabled; (2) a records, letter from the neurologist, diagnostic would include “medical Reinert, records, 9, 1999, September dated hospital test results and which presence echoing document aof condition to the conclusion that Brigham was (3) disabled;8 the extent it would disabling, from De- Brig- affidavits from view, support repeated To Dr. French get notation reads: "will Nero Eval and send almost verbatim the observations he had it to answer above ?s.” We construe this mes- made tempo- when benefits were sage say to Sun Life—to that Dr. —sent rarily early terminated Brig- 1995: “Mr. French had discussed with Alice Kern that he fragile, ham's muscular-skeletal condition get neurological is evaluation and limited, ability severely to transfer is questions would send it posed to answer the possible only with assistance and then with understanding in Sun Life’s letter. This discomfort.... Mr. is in a continu- the notation is reinforced the fact that such incapacity ous state of total by Brig- an evaluation was sent to Sun Life any assignment given duties of attorney. the disabilities ham's described above.” Reinert, 8.The district court noted that Dr. *8 6. The letter also noted that had been who first treated after his 1972 acci- using years, a wheelchair for more than 25 dent, opinion entirely offered his in “almost reported that the TSA opportuni- available conclusoiy terms”: ties, and that the doctor's notes indicated that feels, [Brigham] rightly my opin- and so in year swimming before had been ion, physical problems resulting that the every day finishing building and a new house. years employment from those three of Appellant asserts that Dr. totally French's notes left him disabled insofar as he can reflect the longer accomplish, regular administrator's commitment to ar- no on a sched- that, ule, range for the previously evaluation. We think what he could do. For ex- context, reading ample, this is an unreasonable longer ... it takes him much begins notes. The notation accomplish things management “Discussed with such as of "], [using a form of shorthand for 'with' and prop- bladder and bowel function as well as then a name per- management. written on the same er skin care At the time that line— haps developed “Anita”—is crossed out. pain Below it is the he left flank he also line, area, name "Alice Kern.” pain right On the next noted in his shoulder mak- 80 (1st 11, (who 315 F.3d Cir. Raytheon father, also was v. mother, aunt
ham’s summary 2002), it therefore entered attendant), family and and personal his This limitations;9 the insurer. judgment behalf physical his describing friend the Massa- (4) appeal followed. approval notice and an Assistance of Medical chusetts Division Review II. Standard daily assistance per week of
20 hours tasks. Co. v. Tire & Rubber In Firestone 28, 2000, 948, Bruch, 101, 115, January 109 S.Ct.
In a letter dated
489 U.S.
(1989),
it
attorney
Supreme
Court
informed
Brigham then filed discre- high or unfettered were matters violated Life’s of benefits that Sun denial tion[.]”). “steadfastly applied We have state law. rights under ERISA novo review of de Firestone mandate 1132(a)(1)(B). § The dis- See 29 U.S.C. unless ‘a benefits determinations benefits claims that the state law trict court ruled discretionary clearly grant[s] au- plan ... a thor- by ERISA. After preempted were ” administrator,’ Terry v. thority to the evidence, the the record ough review of Cir.1998) (1st 145 F.3d Bayer Corp., facts undisputed that the court concluded v. Chase Man- (quoting Rodriguez-Abreu support a rational determination could not (1st Bank, N.A., F.2d arbitrarily, Leahy see hattan Life acted that Sun Bradley disabled in that frequently I believe is ing he for him more difficult regular, out of car. routine tasks on lift wheelchair he cannot into early pain 20's instead of his late experiencing Were he in his basis consistent without may happened this he 30’s at the time that to do If he tries some level of discomfort.... problem from the have been able to recover activity then he either too much grad- developed But with the in 1992. (Lilli- days after.” pain or discomfort several physical capabilities ual decline in which mother); Brigham, appellant's "I would older, experience getwe in Brad’s we all fragile physical state as characterize his significant superimposed dis- case day- as tentative his muscular condition ability being paraplegic, he had been days to-day. He seldom has back-to-back *9 level of function unable to recover to the to move pain-free when he is and able about quite problem is self evident pre-1992. His my daily comfortably.... upon obser- Based additional studies and I feel years I helping him for several vations from problem would be su- evaluate further Bradley fully say is disabled and unnecessary. perfluous and employment.” incapable of even (Althea personal Brigham, aunt and attend- following com- 9. These affidavits included ant). my day-to-day "From observations of ments:
81
Cir.1993)).
istrator,
grant
of discretion-
When
distinguishing such phrasing from
found,
ary authority
apply
is
we
deferen-
policies
simply require “satisfactory
arbitrary
tial
capricious
standard of proof’
disability,
of
without specifying who
judicial
(citing Recupero
review.
Id.
v. must be satisfied. See Nance v. Sun Life
Co.,
England
New
Tel. and
Canada,
Tel.
118 F.3d Assur. Co.
294
1263,
F.3d
of
(1st Cir.1997)).
820,
(10th Cir.2002)
827
1267-68
(“‘Satisfactory to
Life’ ... adequately
conveys to the
While the choice of standards is
participants
Plan
and beneficiaries that the
clear-cut, there remains considerable de
disability
evidence of
must be persuasive
language
bate over what
constitutes a suf
Life.”);
to Sun
Ferrari v. Teachers Ins.
ficiently
grant
discretionary
clear
of
au
Ass’n,
(8th
Annuity
801,
278 F.3d
806
thority
judicial
to transform
review from Cir.2002) (describing plan
stating
as
de novo to
In Herzberger
deferential.
v.
“proof must be satisfactory to [the admin
Co.,
(7th
327,
Standard Ins.
205 F.3d
331
istrator]”); Herzberger,
82 otherwise,
Cir.1998) (en banc).10 to we only ruling And one cir- we consider Were thorough exploration of cuit, Second, suggested—in dicta— undertake has the stand, “satisfactory language to matters the wide- us” the issue. As that even convey to discretion. of the that the inadequate spread acceptance view may be Kinstler, discretionary This we F.3d at 252. language triggers See here present of the law. We adhering as the state that to our raise- view view assures us in this of the injustice turn to the state record in no now results this or-waive rule case. case. only on consider therefore move to We in dis proceedings the
Throughout Sun Life’s decision to terminate whether court, the ar assumed that trict arbitrary ca- Brigham’s benefits applied, bitrary capricious standard question must view this now,11 pricious. the We he does that arguing, as never lens, summary judgment through the lead- insufficiently explicit language was policy Indeed, specifically the discretionary ing us examine “whether trigger review. occasion, evidence, light in the appellant’s aggregate one viewed on more than non-moving party, expressly identified the issue most to the counsel favorable support as Sun Life’s decision rational that the case whether determination arbitrary capricious. light arbitrarily plan administrator acted above, do not precedent Leahy, described we denying claim for benefits.” at depart the well compelled to feel “‘arguments not sea principle that
worn III. The Termination cannot sonably in the district court raised Benefits ” appeal,’ for the first time on be raised As at the outset this indicated Int’l, 456, 460 Nyer v. Winterthur 290 F.3d we that a rational opinion, have concluded Cir.2002) (1st v. (quoting Corrada Betances find, not this decision-maker could on rec (1st Serv., Inc., 40, 44 248 F.3d Sea-Land ord, that Sun Life lacked a reasonable Cir.2001)); Relief, Airport Impact also see basis its determination (1st n. 3 Wykle, v. 192 F.3d Inc. sedentary posi in a could return to work Cir.1999)(“ interject into a Amici cannot is especially tion. This conclusion clear litigants chosen case issues which the have Doyle respect work. See ignore.”). Paul Ins. 144 F.3d v. Revere (1st Cir.1998) part- recog- (capacity to work may increasing It well be signals supports finding for the time that claimant was nition of need clearest “totally any occupa fu- portends discretion not disabled from of administrative tion”). greater Although we considerable requiring precision. ture consensus confess yet does exist. ambivalence about whether But consensus not Indeed, expected to return to the work possible exception with the should dicta, force, believe, appeals no we for the rea Circuit in federal nonetheless Second follow, type at that Sun Life cannot be language has sons court viewed reaching in this to confer found to violated inadequate issue case as ERISA consider plan administrator. the decision it did. We first discretion argument joined appeal by plan language 11. He is in this 10. The relevant stated right require shall have "[the insurer] amicus AARP. satisfactory evi- part proof of claim claimant] dence ... that has furnished all [the required proofs for such benefits.” *11 Thus, record evidence which Sun Life relied Dr. French’s medical reports did particular and then several address chal- not reflect a in Brigham’s decline physical lenges to the insurer’s decision-making. condition from the time he became dis- abled in 1993. Despite Sun request Life’s A. Evidence in the Record objective medical evidence substanti- Unquestionably, the significant evi- most ate the doctor’s in assertion December dence the record is the series of Attend- 1998 that Brigham no longer capable ing Physician Statements from Dr. of the sedentary work the doctor earlier French. report In each before the last feasible, deemed reports no two, opined Brigham French that kind submitted were based on either re- could part-time, return with re- cent examinations or clinical showing tests training, long job so as require did not progressive loss of abilities. Dr. Reinert’s transfers and into out of his car. The little; assessment adds he noted that “the report, next-to-last in January stated gradual in physical decline capabilities “possibly” could resume which we all experience older, as we get Only work. report— the last ... superimposed significant dis- filed after notified ability of being paraplegic,” rendered prove he needed to inability to work at Brigham unable to recover to his level of any occupation Dr. French assert —did function before the 1992 muscle strain. capable “not at all” of But Dr. French’s consistently had working on a part-time even basis. indicated that Brigham retained at least APS, however, that same Dr. French con- part-time sedentary employment capabili- classify tinued to Brigham’s physical im- ties his 1992 injury. after And the TSA pairment as Class seemingly indicating identified a sedentary number of jobs that ability sedentary to do work.12 The appeared they suitable in that largely re- repeated doctor his earlier assessment that quired phone calling or counseling in a sit 5-10 and hours drive 1- single location.13 hours normal day a and rated him sure, capable To the record range a wide also contained move- significant ments at least a daily small evidence of the percentage challenges of the time. Each throughout APS faced as a paraplegic the five-year ongo- with period that Brigham’s ing noted condition re- issues of pain. muscle strain and mained unchanged previous family affidavits from and empha- friends port. pain sized typically accompanied Brigham's argument interface, computer Dr. French's 12. telephone contact “Class 4” relating evaluation to sedentary others”; ac- (3) with program clients tivity signify ability does not to do seden- specialist employee within an pro- assistance tary work given is meritless employment gram, whose is to context “Physical and the reference in the delivery coordinate of services to cov- Impairment” section of APS to the Feder- employees, receiving ered calls from the Dictionary al Occupational Titles. employees connecting ap- them with Among (1) propriate community positions [Program services. were: noted cor- specialists] delivery then specialist, rectional-treatment oversee the of ser- essentially prison counselor setting parameters coverage. vices within the pri- within whose mary activity entirely sedentary verbally The work is requires communication with others; (2) travel, virtually inmates and vocational no since performed rehabilita- most is counselor, tion primary in which phone computer and on activities within station- clients, are "verbal interaction axy some office.
84 evidence,” request activity, arguing the for physical his own
or followed unnecessary—as such was Dr. evidence re described the substantial effort of his opined—in light Reinert had obvious daily tasks. accomplish to basic quired objective infirmity, improper because beyond question a return think We expressly evidence was not re- medical to a substantial burden to would add quired by employee plan. benefit life. difficult Yet we Brigham’s already unavailing. These are arguments required was say that the insurer cannot conclude, pro on the medical evidence to argument to respond the first We vided, him that that burden rendered total necessity to the of additional addressed i.e., disabled, unable physically to work ly “objective by stressing medical evidence” basis. Nor do we on even particularistic state of this record. In any factfinder could think reasonable note that cases such as passing, we would Ray such a See Vlass v. reach result. very these nature are fact-oriented. Trust, Disability 244 Employees theon fully recognize laboratory We tests or (1st Cir.2001) (“[T]he 27, 30 existence procedures F.3d not diagnostic similar will al not, contradictory does in it ways necessary of evidence to a claim substantiate self, disability, disabling ar as certain conditions make administrator’s decision Co., susceptible objective are not such evalu bitrary.”); Raytheon Sullivan v. 262 See, (1st Cir.2001) (same). e.g., ations. Mitchell v. Eastman Ko n. 8 52 The F.3d Cir.1997)(“It (3d dak F.3d beyond decision insurer’s to look the sub widely recognized in is now the medical family jective conclusions of and others legal communities that ‘there is no beyond his close to him—and doctors’ une- “dipstick” laboratory test for chronic fa specific abili laborated conclusions—to ”). tigue syndrome.’ ties listed Dr. French’s medical forms inevitable, however, not but neither was it arbi Here, was opinion in French’s trary. report That offered a totally the TSA the final was APS employment possibilities occupation for an disabled for contradicted number reports, was no earlier and there ex- individual with those abilities underscores view, planation for his new such as evi- Life’s the reasonableness of Sun decision. specific physical changes dence of that fur- however, argues, that Sun Brigham’s capacity ther limited to work. decision flawed it was Life’s because Indeed, repeatedly Dr. French described rely improper for the insurer to “unchanged.” condition as “objective medical evidence” absence justified seeking insurer therefore failed to and because insurer obtain some explanation clinical doctor’s independent to counter medical evaluation changed perception. Had doc- disability. Dr. French’s conclusion of total responsive, tors example, been turn now to those issues. We August request claims administrator’s 24, 1999, “any spe- come forward with Objective B. Medical Evidence report cific measures” and submitted rejecting Brigham’s appeal of its ben- examination recent decision, pointed termination Sun Life efits weakening strength, vealed muscle de- “objective lack of support” to the medical creasing stamina or visible indica- other deterioration, for the assertion that he is disabled tors of Life could not any occupation. Brigham makes a reasonably relied on earlier medical multi-pronged reports stating capac- attack on the insurer’s reli- that he retained “objective ity to As claim- perform sedentary ance on the absence of medical work. ant, Brigham “objective needed demonstrate his demand medical evidence” on benefits, occasion, entitlement and he either sought therefore evidence ad- substantiating burden of dition the doc- to his doctor’s inconsistent or unex- *13 plained diagnosis tors’ new incapable that he was conclusions. The request for more information performing fully was sedentary particularly work. reasonable in 1999 in light of the prior doctor’s contrary amici) Brigham’s argument (joined by assessments of his work abilities. request “objective that the medical evi- imposed impermissible dence” an extra- Independent C. Medical Review eligibility contractual criterion was not suggests also that it was raised below and is therefore waived. improper for reject Sun Life to his own court, Brigham the district did not contend doctors’ conclusions without obtaining that request objective Sun Life’s medi- independent Life, medical evaluation. Sun cal impermissible evidence was because however, accepted the limitations identified extra-contractual, argued but instead by Dr. French and adopted Dr. French’s provided that he had sufficient in evidence judgment earlier that those limitations did support event, his claim. In as our prevent not Brigham from all types of indicates, prior discussion specific rec- work. As Sun Life did not disagree with in ord this case demonstrates that Sun proffered claimant’s diagnosis, it had Life was not rejecting Brigham’s claim no to obligation obtain its own medical of failure satisfy predeter- because evidence. House v. Paul Revere Cf. Life prerequisite mined eligibility, but was (8th Ins. Cir.2001) 241 F.3d 1048 responding to a late-developing and unex- (insurer possessed that “not even a scintil plained change of position part la of [contrary] not evidence” entitled to Brigham’s doctor by seeking non-concluso- discount claimant’s doctor’s extensive evi support medical ry for the onset of total dence of severe heart disease without con disability. ducting independent examination). medical Brigham also accuses Sun Life of chang- Although the final medical consultant’s re ing the standard evidentiary for medical brief, port was it reflected a review of the evidence because the same information materials submitted Brigham, particu that he submitted in 1999 had been suffi- larly Dr. French’s most physician recent cient when it was submitted in 1995 statements. Further medical information prompt of his reinstatement benefits. For would have been illuminating, but it was reasons, however, two the “inconsistency” up Brigham tu explain why Dr. French’s not position. First, does assist his quantitative assessments of his changed had issue from ability abilities longer were no an accurate indica job to do his own the travel require- —with ability tor of his to work. ments —to any job. whether he could do
Second, IV. Conclusion medical information provided in 1995—that the inevitably muscle strain question we face this appeal is would resume with frequent transfers into “not which side we right, believe is and out of the car—was linked with infor- whether [the insurer] had substantial evi- mation from employer his multiple grounds dentiary for a reasonable decision transfers would required. The same in its Doyle, favor.” F.3d at 184. We medical explain evidence not why, did share the district sentiment court’s 1999, Brigham could not do a that had this is a difficult case because of “the Thus, requirements. no travel the record courage obvious plaintiff has shown fac- shows Sun Life did not arbitrarily ing his disability,” F.Supp.2d at 438. Cir.1997) (in (3d n Beyond 433, 440 Co., 113 F.3d counterintuitive this, it seems denial plan administrator’s concluding that muscle suffering serious paraplegic that a capricious, arbitrary in his limited severely of benefits pain, strain to- Security deemed Administra- functions, not be noted Social bodily court Moreover, clear it seems claimant determination tally disabled. tion’s minimalist view work). has that this find- taken think that Sun One would not equally true it is Brig- But the record. the affidavits coupled with ing, surmount, es- plaintiff the hurdle reports from family and the ham’s any oc- inability to tablishing disabled, would he was doctor that *14 trained, was he for which cupation an inde- Life to seek prompted have issue, we As to that high one. condi- Brigham’s of pendent examination un- that the court the district agree final decision making tion before us permit do not facts of record disputed set the standard Since deny his benefit. arbitrary in an that Sun acted to find to us”— policy “satisfactory in the forth — terminating appel- manner in capricious degree of evi- question leaves lant benefits. Brigham’s Life, I its solely up to Sun believe dence in this case was deny benefits decision Affirmed. capricious. arbitrary and Judge, STAHL, Senior Circuit part. dissenting part in in concurring and opinion Judge in
I Coffin’s concur in this matter of review
the standard facts capricious. Given arbitrary America, STATES UNITED difficulty however, I have case, of this Appellant, not actions Life’s were concluding that Sun the evi capricious. While arbitrary v. permanence
dence as QUINONES Diego B. Alan question, some not without disability is Rodriguez, Defendants- evi and unrebutted significant there was Appellees, condition he was his current dence Jimbo; Soto; Vega, Janet consistently. Williams Hector to work a/k/a unable Cf. (6th Brown; Rivera; Joseph C. F.3d Milton Paper v. Int’l Blaze; (court Cir.2000) plan Johnny Rodriguez, administra Saul held that a/k/a capriciously Hernandez, when arbitrarily Hernandez; tor acted Raul a/k/a evidence of Luis; it failed to consider relevant P. “Twin”, Carlos a/k/a condition). Brigham’s Defendants, claimant’s Veve, Robert malingerer. Affida that of a life was not 02-1405(CON). 02-1403(L), Nos. Docket members vits submitted Appeals, Court United States if he engaged family indicated Circuit. Second day, he would be activity on one much subsequent days, discomfort on pain or 21, 2002. Argued: Oct. leave his bed. making difficult him Dec. Decided: hardly seems to be short, Brigham Rehearing: on Petition Order sustaining regular em capable person 16, 2003. Jan. Moreover, Security the Social ployment. Administration, presumably using information, Brigham was found
same Eastman Kodak Mitchell v. See
disabled.