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Blackwood v. Sun Life Assurance Company of the Canada

March 10, 2009


The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge


Doc. # 16

This is an action pursuant to the federal Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. In this action, plaintiff Cislyn Blackwood ("Plaintiff") seeks to recover benefits she contends were wrongfully denied by defendants Sun Life Assurance Company of Canada ("Sun Life"), and plan administrator Community Medical Centers Employee Benefit Plan (collectively, "Defendants"). In the instant motion, Plaintiff seeks to augment the administrative record with medical records dating from the inception of her illness and with declarations of treating physicians and of personnel associated with her former employer and with her own declaration. For the reasons that follow, Plaintiff's motion to augment the administrative record will be granted in part and denied in part.


On October 22, 2008, the court issued a memorandum opinion and order dismissing the action in case number 08cv074 AWI GSA for failure to name a proper party defendant. The dismissal was with leave to amend. On October 30, 2008, Plaintiff filed the complaint in the instant case in Fresno County Superior Court. The case was removed to this court on November 25, 2008. The instant petition to augment the record was filed by Plaintiff on February 2, 2009. Sun Life filed its opposition to the motion to augment on February 16, 2009, and Plaintiff filed her reply on February 23, 2009. The court vacated the hearing date of March 2, 2009, and took the matter under submission as of that date.

Plaintiff was formerly employed by Community Hospitals of Central California ("Community Hospitals") as the manager of the skilled nursing department. The complaint alleges Community Hospitals of Central California dba Community Medical Centers Employee Benefit Plan (hereinafter, the "Plan") is an employee benefit plan as defined by ERISA sponsored by Community Hospitals. As the court has previously noted, Community Hospitals is the Plan administrator, and Sun Life is the Plan's third-party insurer and claims administrator. It is the court's understanding that Sun Life has complete authority for claims review and to accept or reject claims applications.

Plaintiff became a participant in Community Hospitals' group disability insurance program on January 1, 1999. Plaintiff paid an extra premium so as to be entitled to enhanced disability benefits. The FAC alleges that Plaintiff was diagnosed in September 2001 as suffering from multiple myeloma, a cancer affecting the body's antibody-producing plasma cells. Multiple myeloma results in the production of plasma cell tumors that are usually located in bone where they tend to cause bone and joint pain, and loss or abnormality of bone structure. The FAC alleges Plaintiff suffered pain in all her joints and "experienced symptoms of swelling and generalized weakness and fatigue." FAC at ¶ 11.

Multiple Myeloma is a cancer that is treatable, but not curable. Plaintiff was informed that patients with multiple myeloma survive for periods of time ranging from two to five years. The complaint alleges that Plaintiff began to experience "cognitive difficulties as well as impaired memory secondary to medications that she was required to take for the treatment of her cancer." Plaintiff has been treated by several doctors including an oncologist a physiatrist and an internist. Plaintiff has been receiving daily chemotherapy since 2004. Plaintiff continued to work in her position as nurse manager until August 15, 2006, at which time she left employment and did not return. Plaintiff filed for disability under the Plan on January 30, 2007, alleging she was disabled as of August 16, 2006. In her claim for disability benefits, Plaintiff stated she suffered from fatigue, chronic bone and joint pain requiring continuous pain medication, peripheral neuropathy in her feet and cognitive impairment, apparently due to the effects of cancer chemotherapy drugs she was receiving.

Plaintiff executed an "Authorization for Release and Disclosure of Health Related Information" on January 30, 2007 (the "Release"). The Release authorized Sun Life to access the entirety of Plaintiff's medical records from any physician or healthcare provider without limitation as to dates of the records in question. In her petition to augment the record, Plaintiff cites a number of entries in Sun Life's record of telephone communications with Plaintiff that indicate Sun Life informed Plaintiff that they were in the process of retrieving medical records from Dr.'s Jones and Wittlinger and that Plaintiff had contacted those physician offices in order to facilitate the process of provision of the records.

On July 2, 2007, Sun Life informed Plaintiff of Sun Life's preliminary determination that Plaintiff was not entitled to disability benefits (the "July 2 Letter") because it had been determined that Plaintiff was not physically disabled at the time she applied for disability. Disability, for purposes of qualification for long term disability benefits under the Plan requires that the plan member be unable to perform the material and substantial duties of his/her own occupation during the entirety of a 180-day elimination period that begins to run as of the day following the last day of work. In Plaintiff's case, Sun Life determined that the elimination period ran from August 16, 2006 through November 13, 2006. In its July 2 Letter, Sun Life summarized its findings as follows:

After careful consideration of the available medical documentation and all other information in your file, we have concluded that, although you have a history of multiple myeloma dating back to September2001, the medical evidence does not support a marked change in your condition prior to August 16, 2006 that would have caused a change in your functional status as of August 16, 2006. Additionally, there is no indication immediately before, during or after your date of disability (August 16, 2006) that indicates any worsening of reported symptoms, clinical findings or diagnostic values.

Overall, the medical documentation substantiates that your multiple myeloma has been stable and that good control of the disease is being maintained. Additionally, it appears that you are tolerating therapy well. Furthermore, the restrictions and limitations provided by Dr. Wittlinger (consistent with less than full time sedentary capacity) are not supported by his own medical documentation for the reasons outlined above.

McQuillan Declaration, Doc. # 22, Exh. "C." The July 2 Letter reviewed the medical record information that was used in formulating Sun Life's conclusion and informed Plaintiff that the record had been reviewed by their medical consultant and had been submitted for "independent peer review" by a Dr. Andrew Schneider, M.D. The July 2 Letter informed Plaintiff of her opportunity to administratively appeal and of her right to "submit written comments, documents, records or other information relating to [Plaintiff's] claim for benefits, and [to] request free of charge copies of all documents, records, and other information relevant to your claim for benefits." Id.

Plaintiff timely filed an administrative appeal and submitted a letter on August 7, 2007, (the "August 7 Letter") addressing the matters raised by the Sun Life's July 2 Letter. See Doc# 22, Exh. "D". Plaintiff's August 7 Letter references a letter from Dr Wittlinger, M.D. as an enclosure, but the letter from Dr. Wittlinger does not appear to have been included in the exhibit that was provided to the court. Plaintiff's August 7 Letter states, inter alia, that the physician's notes reflecting the stability of Plaintiff's condition refer to stability within the context of Plaintiff's underlying condition of continuing pain requiring continuous pain management, peripheral neuropathy and fatigue. Plaintiff's August 7 Letter does not appear to mention cognitive impairment.

Plaintiff was informed by Sun Life on November 8, 2007, (the "November 8 Letter") that her appeal had been denied and that Plaintiff had exhausted all administrative remedies. See Exhibit "I" to McQuillan Dec., Doc. # 22. Sun Life's final denial was based on essentially the same grounds as the preliminary denial. Sun Life's November 8 Letter informed Plaintiff that her medical record had been reviewed by a Dr. Lodovico Baldacci,MD, who opined there was no evidence of change in Plaintiff's medical condition that was evident in the medical record at or near the time Plaintiff discontinued her work that was sufficient to indicate medical disability. The final denial letter also informed Plaintiff that Dr. Baldacci had reviewed the medical records of Dr. Wittinger regarding cognitive impairment and had concluded there was no evidence in the medical record of significant cognitive impairment.

The instant petition to augment the record was filed on February 2, 2009. Sun Life filed its opposition on February 16, 2009, and Plaintiff filed her reply on February 23, 2009. On February 25, 2009, the court vacated the hearing date of March 2, 2009, for Plaintiff's petition to augment the record and took the matter under submission as of that date.


The default standard for the judicial review of benefits decisions by plan administrators in ERISA cases is de novo unless the plan unambiguously retains discretion in the plan administrator. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 105 (1989). The parties in this case do not dispute that the proper standard for review is de novo. Under de novo review the district court simply determines whether the plan administrator correctly or incorrectly denied benefits. Opeta v. Northwest Airlines Pension Plan, 484 F.3d 1211, 1217 (9th Cir. 2007). "Where there is a sufficiently developed record before the plan administrator the court should not review document not submitted to the plan administrator prior to its decision." Mongeluzo v. Baxter Travenol Long Term Disability, 46 F.3d 938, 943 (9th Cir. 1995). However, a district court employing de novo review of a ...

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