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Pamela Hinz v. Hewlett Packard Company Disability Plan


March 30, 2011


The opinion of the court was delivered by: Lucy H. Koh United States District Judge


(re: docket #25)

the standard of review. See Dkt. #25. Plaintiff seeks a de novo standard of review because Defendant Hewlett-Packard Company Disability Plan (Defendant or "the Plan") has yet to issue a 19 decision on appeal in connection with the termination of Plaintiff's long-term disability benefits. 20

Court finds this matter appropriate for resolution without oral argument, and vacates the March 31, 22 2011 motion hearing. See Civ. L.R. 7-1(b). The March 31, 2011 Case Management Conference 23 remains as set. For the reasons set for below, the Court DENIES Plaintiff's motion for a de novo 24 standard of review, and instead finds a heightened abuse of discretion review appropriate. 25

Presently before the Court is Plaintiff Pamela Hinz's motion for summary adjudication of Defendant has filed an opposition, arguing for an abuse of discretion standard of review. The


Plaintiff filed suit on August 17, 2010 under the Employment Retirement Income Security Act of 1974, 29 U.SC. §1001 et seq. ("ERISA"). See Compl. Plaintiff became an employee of the Hewlett-Packard Company in August 1982, and is a beneficiary of the Plan. Id. at ¶¶ 7-8. Plaintiff 2 alleges that she became disabled on or about May 1, 2005, with injuries to her hands, wrist, and 3 cervical spine due to long hours sitting and working on a keyboard. Id. at ¶¶ 10-12. Plaintiff 4 received short-term disability benefits from May 1, 2005 through October 30, 2005. Id. at ¶ 13. 5

Plaintiff's claim for long-term disability benefits under the Plan was approved on December 23, 2005. Id. From December 23, 2005 through August 15, 2009, Sedgwick CMS ("Sedgwick"), 7 the Plan's claims administrator, periodically reviewed and approved Plaintiff's claim for long-term 8 disability benefits. Id. at ¶ 14. The Plan provides Sedgwick with discretionary authority to decide 9 any appeal of denial of benefits. Under the Plan, after receipt of the request for an appeal, 10 Sedgwick has 45 days to act upon that request, with a potential additional 45 day extension if necessary. Section 8(c) of the Plan. In amendment to the Plan effective April 1, 2006 entitled "Limitations on Actions," no suit or legal action may be filed more than one year after the earlier 13 of: i) the date of the final decision on review; or ii) the date a final decision on review "should have 14 been issued." Section 9(f) of the Plan. 15

By a letter dated August 20, 2009, Sedgwick advised Plaintiff that her claim for long-term disability benefits was denied as of August 16, 2009 because Plaintiff's medical documents failed 17 to validate her inability to engage in full-time regular work. Id. at ¶ 15. Defendant based this 18 initial denial on the report of Dr. Robert Y. Pick. After reviewing Plaintiff's administrative file, 19 but not examining Plaintiff herself, Dr. Pick concluded that Plaintiff's "multiple diagnoses are not 20 supported by objective medical information." The August 20, 2009 letter also notified Plaintiff 21 that if she did not receive notice of Sedgwick's decision by the end of the 90-day period, "the 22 appeal can be considered denied." Plaintiff appealed the denial on January 20, 2010, and Sedgwick 23 acknowledged receipt of the appeal in a letter dated to Plaintiff on February 9, 2010. Id. at ¶¶ 15-24 . In that appeal, Plaintiff submitted additional medical information and documents in support of 25 her claim. Id. 26 To date, Defendant has not responded to Plaintiff's appeal.

or any part" of a claim "shall be rendered forthwith if the pleadings, depositions, answers to 4 interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 5 genuine issue as to any material fact and that the moving party is entitled to judgment as a matter 6 of law." See Fed. R. Civ. P. 56(b), (c). Material facts are those that may affect the outcome of the 7 case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material 8 fact is "genuine" if the evidence is such that "a reasonable jury could return a verdict for the 9 nonmoving party." See id. "[A]ll justifiable inferences must be drawn in [the non-movant's] 10 favor." See United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. for its motion and identifying those portions of the pleadings, depositions, interrogatory answers, 14 admissions and affidavits, if any, that it contends demonstrate the absence of a genuine issue of 15 material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party opposing a properly 16 supported motion for summary judgment "may not rest upon the mere allegations or denials of 17 [that] party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for 18 trial." See Fed. R. Civ. P. 56(e); see also Liberty Lobby, 477 U.S. at 250. The opposing party need 19 not show the issue will be resolved conclusively in its favor. See Liberty Lobby, 477 U.S. at 248-20 49. All that is necessary is submission of sufficient evidence to create a material factual dispute, 21 thereby requiring a jury or judge to resolve the parties' differing versions at trial. See id. 22

Defendant's termination of her disability benefits. Defendant argues that, despite the failure to rule 26 on Plaintiff's appeal, an abuse of discretion standard of review is appropriate. 27 28


Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment as to "all 1989) (en banc) (citing Liberty Lobby, 477 U.S. at 255).

The moving party bears the initial responsibility for informing the district court of the basis


Plaintiff moves for summary adjudication of the standard of review, arguing that Defendant's failure to decide her appeal requires the Court to conduct a de novo review of is de novo. See Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); see also Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006) (en banc). However, if the plan 5 unambiguously gives the plan administrator discretion to determine a plan participant's eligibility 6 for benefits, then the standard of review shifts to abuse of discretion. Abatie, 458 F.3d at 963.

Plan participation and entitlement to Plan benefits in accordance with the terms of the Plan." The

A.Standard of Review in ERISA Cases

The default standard of review applicable to a plan administrator's decision to deny benefits Here, there is no dispute that the Plan confers discretionary authority to "determine eligibility for Plan also provides discretionary authority on the claims administrator (e.g., Sedgwick) to 10 determine entitlement to Plan benefits, including initial claims and appeals. See Section 9(a) of the Plan. With such discretion unambiguously granted, it would appear that Defendant's decision to terminate Plaintiff's long-term disability benefits should be reviewed for abuse of discretion. 13

taken into consideration when deciding upon the standard of review, and that the benefits denial "should be reviewed de novo if 'an administrator engages in wholesale and flagrant violations of 16 the procedural requirements of ERISA, and thus acts in utter disregard of the underlying purpose of 17 the plan as well.'" See Abatie, 458 F.3d at 971. The court cautioned, however, that such de novo 18 review is only appropriate in a "rare class of cases," and "a procedural irregularity in processing an ERISA claim does not usually justify de novo review." Id. at 972. Finally, the Abatie court noted 20 that, even if the review is for abuse of discretion, "[a] procedural irregularity, like a conflict of 21 interest, is a matter to be weighed in deciding whether an administrator's decision was an abuse of 22 discretion." Id. 23 standard of review analysis in ERISA cases clarifying that "the conflict of interest must be 'weighed as a factor' but does not convert abuse of discretion review into de novo review. The 26 weight given the factor varies." See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 112-14 (2008); 27 see also Conkright v. Frommert, 130 S. Ct. 1640, 1646 (2010) (confirming that, under Glenn,

The Ninth Circuit in Abatie, however, also held that "procedural irregularities" should be

Since the Ninth Circuit's en banc decision in Abatie, the Supreme Court has refined the "when the terms of a plan grant discretionary authority to the plan administrator, a deferential standard of review remains appropriate even in the face of a conflict"). In response to the Supreme Court's opinion in Glenn, the Ninth Circuit has recently issued its own clarification. See Salomaa v. Honda Long Term Disability Plan, 2011 U.S. App. LEXIS 4386 (9th Cir. Mar. 7, 2011). In "left with a definite and firm conviction that a mistake has been committed." Id. at *24-25. In 6 addition, the Ninth Circuit stated that "deference to the plan administrator's judgment does not 7 mean that the plan prevails." Id.

appeal is a serious procedural irregularity. That failure, however, is not so flagrant or severe as to Salomaa, the Ninth Circuit explained the meaning of "abuse of discretion" as whether the court is 5

B.The Appropriate Standard of Review in Plaintiff's Case

In the instant action, Defendant's unexplained failure to issue a decision on Plaintiff's create a "substantive harm" to Plaintiff such that de novo review is appropriate. See Abatie, 458 F.3d at 971 ("procedural violations of ERISA do not alter the standard of review [from abuse of 13 discretion review to de novo review] unless the violations are so flagrant as to alter the substantive 14 relationship between the employer and employee, thereby causing the beneficiary substantive 15 harm") (citing Gatti v. Reliance Std. Life Ins. Co., 415 F.3d 978, 985 (9th Cir. 2005). Even though 16 there has been no decision on appeal, Defendant did exercise its discretion in denying Plaintiff's 17 original claim. 18

Aside from Abatie, Plaintiff also relies on the Ninth Circuit case of Jebian v. Hewlett- Packard Co. Emple. Benefits Org. Income Prot. Plan, 349 F.3d 1098 (9th Cir. 2003). In Jebian, 20 the plan at issue provided that if the administrator did not respond to the claimant's appeal within 21 sixty days, the claim would be "deemed denied" on review. Id. at 1102. The applicable regulation 22 at the time, 29 C.F.R. § 2560.503-1(h) (1998), also stated that if the appeal was not decided within 23 sixty days, the appeal was "deemed denied." Id. at 1103. The Ninth Circuit held that "where, 24 according to plan and regulatory language, a claim is 'deemed . . . denied' on review after the 25 expiration of a given time period, there is no opportunity for the exercise of discretion and the 26 denial is usually to be reviewed de novo." Id. included in the Jebian plan. See Pl.'s Mot. for Summary Adjud. at 8. However, Plaintiff argues Plaintiff acknowledges that the Plan does not include the "deemed denied" language that her case is "functionally identical" to Jebian because: (1) the Plan's one-year limitation period 2 for bringing suit runs from the end of the 90-day time period for making a decision on the request 3 for an appeal; and (2) the August 20, 2009 denial letter states that Plaintiff's appeal can be 4 considered denied if she does not receive notice of a decision by the 90-day period.

in two crucial respects. First, unlike in Jebian, the Plan itself does not contain a "deemed denied" 7 provision, a fact critical to the Ninth Circuit's reasoning and outcome. See Jebian, 349 F.3d at 8 Jebian, however, is not directly on point, as Plaintiff's claim is distinguishable from Jebian 1106. The Plan, which is the operative document defining the scope of Sedgwick's discretion, 9 does not contain the "deemed denied" or "considered denied" language. Second, the regulation at 10 issue in Jebian, 29 C.F.R. § 2560.503-1(h),was amended to delete the "deemed denied" language.

Now, in the event a plan does not yield a decision within the relevant time limits, the regulation provides that "a claimant shall be deemed to have exhausted the administrative remedies available 13 under the plan." See 29 C.F.R. § 2560.503-1(l) (emphasis added); see also Tabatabai v. Hewlett-14 Packard Co. Disability Plan, 2006 U.S. Dist. LEXIS 66110, *10 (N.D. Cal. Sept. 1, 2006) ("The 15 plan here contains no provision deeming claims denied. Jebian does not apply to this situation.").

the Plan itself contained the "deemed denied" language. See Gatti, 415 F.3d at 982 ("The Jebian 18 opinion discusses the time limits established by the plan and those imposed by regulation in 19 tandem, but the court's ultimate holding was based solely on the time limitation language in the 20 plan . . . We conclude that Jebian does not control the issue presented here, and hold that violations 21 of the time limits established in 29 C.F.R. § 2560.503-1(h) are insufficient to alter the standard of 22 review") (emphasis added). The Ninth Circuit reasoned that, when the "deemed denied" language 23 is not included in the plan, an exhaustion "mechanism is necessary to allow claimants access to the 24 courts in the event that their plan never makes a decision." Id. at 983. In light of Gatti, the 25 limitations period and August 20, 2009 letter provide Plaintiff a mechanism to bring suit in court, 26 but do not change the standard of review in connection with Plaintiff's appeal.

This is not a toothless form of review. Under Ninth Circuit guidance, "deference to the plan Most importantly, the Ninth Circuit has directly narrowed Jebian to circumstances in which

Thus, the weight of authority points toward application of an abuse of discretion standard.

administrator's judgment does not mean that the plan prevails." See Salomaa, 2011 U.S. App. 2 LEXIS 4386, *24. Moreover, because of the procedural irregularities involved, the Court will 3 review the denial of Plaintiff's claim with a heightened degree of skepticism and will consider 4 additional evidence submitted with Plaintiff's notice of appeal to Defendant. See, e.g., Cushman v. Motor Car Dealers Servs., 652 F. Supp. 2d 1122, 1131 (C.D. Cal. 2009) (in a similar ERISA 6 case involving a claims administrator's failure to make a decision on appeal, applying an abuse of 7 discretion standard "tempered with a large amount of skepticism" and considering additional 8 evidence submitted with the appeal of the denial of the claim).


For the reasons stated above, Plaintiff's motion for summary adjudication of a de novo ill review Plaintiff's claim under an abuse of standard of review is DENIED. The Court w 12 discretion standard. Because of Defendant's actions and the serious procedural irregularity 13 involved, however, the Court will review Defendant's decision to terminate Plaintiff's long-term 14 disability benefits with a greater degree of skepticism and will consider additional evidence 15

Plaintiff submitted to Defendant in connection with her notice of appeal. The March 31, 2011 16 motion hearing is vacated. The March 31, 2011 Case Management Conference, however, remains 17 as set. 18



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