Continental Casualty opposes the remand motion, arguing that the two reports were
merely summaries of other evidence that was already in file and that was available to plaintiff.
Thus, despite any failure to disclose the reports, plaintiff stil? got a full and fair opportunity to
present her case. Continental Casualty asserts that what plaintiff is really trying to do is to get
“another bite at the apple” by supplementing the administrative record with evidence she
previously chose not to submit to the administrator and with evidence gathered after the
administrative review process concluded. As we understand the defendant’s position, it is not
disputing the fact that plaintiff should have been given the two reports during the administrative
process and that if she had becn given those reports she would have been able to submit rebuttal
evidence. In effect, defendant is arguing that any procedural error from failing to provide the
reports is a harmless error,

Plaintiffs argument relies primarily on the Seventh Circuit’s ruling in Halpin v. W.W.
Grainger, Inc., 962 F.2d 685, 689 (7th Cir. 1992). Specifically, plaintiff cites to the following
language in Halpin:

[T]he persistent core requirements of review intended to be full and fair include

knowing what evidence the decision-maker relied upon, having an opportunity to

address the accuracy and reliability of'that evidence, and having the decision-

maker consider the evidence presented by both parties prior to reaching and

rendering his decision.

Id, at 689 (quoting Grossmuller v. Int'l Union, United Automobile Aerospace and Agricultural
Implement Workers of Am., UAW, 715 F.2d 853, 858 n.5 (3d Cir. 1983). This case falls squarely
within this dictate, which requires that plaintiff “know(] what evidence the decision-maker relied

upon” so that, among other things, she has the “opportunity to address the accuracy and

reliability of that evidence.” Jd. Here, plaintiff clearly did not receive the reports in time to

4.



her performing those same duties for another employer.” In the March 13th letter, the appeals
committee referred to the fact that it had commissioned the Paskewicz report and it also attached
a copy of that report but it did not otherwise discuss the details of the report.

The first time plaintiff became aware of the Paskewicz report was when she received the
committee’s March 13th letter attaching a copy of that report. In addition to not receiving the
Paskewicz report during the administrative process, plaintiff also did not receive a copy of a
November 29, 1999 report prepared by a nurse working for Continental Casualty, Lissa Estes.
Two pages long, the Estes report summarizes some of the facts relating to plaintiff's case and
then concludes that she has “some symptoms of anxiety and depression” but that those symptoms
“do not indicate severity.” The March 13th appeals committee letter does not attach a copy of
the Estes report nor does it refer to it in any direct way.

DISCUSSION

Plaintiff has filed a motion asking us to remand this case to the administrator for a re-
determination of benefits. She states that she never received a copy of the Paskewicz and Estes
reports during the original administrative review and that she therefore was not able to submit
rebuttal evidence to these two reports, In effect, she is arguing that defendant concealed from her
the expert opinions upon which it relied in denying her claim, She argues that this failure to
disclose the two reports denied her a “full and fair” review of her claim. 29 U.S.C. § 1133. To
correct this error, she asks that we remand this case back to the administrator to allow plaintiff to

present this evidence and to then allow the administrator to make a new determination.

“The first time plaintiff became aware of the Estes report was in response to a discovery
request in this case asking for a copy of her claim file.

3.



allow her to attack their “accuracy and reliability.” Basic procedural fairness suggests that the
committee not be allowed to rely on an expert opinion that was not disclosed to plaintiff.

As noted above, defendant does not really dispute this point. The only real question is
whether defendant is correct in maintaining that the two reports were essentially harmless
because they added nothing of significance and were merely summaries of the existing evidence.
This description of the reports is misleading, A fair reading of Dr. Paskewicz’s report makes it
clear that he was doing more than simply summarizing the evidence and that in fact he was
offering his expert opinion that plaintiff was not disabled under the policy. If defendant is
correct, then why go to the trouble of getting an independent licensed psychologist to simply
summarize the existing evidence? The fact that the appeals committee asked Dr. Paskewicz to
follow-up on his initial conclusions in the March 9th letter, which he did in his March 10th letter,
shows that his report was important and that the committee was relying on it in a meaningful
way!

For all the above reasons, we will remand this case for a new determination of benefits
consistent with this opinion. See Quinn v. Blue Cross and Blue Shield Assoc., 161 F.3d 472, 477
(7th Cir, 1998).* Concurrently with the motion to remand, plaintiff also filed a motion to compel

discovery. However, plaintiff stated that this motion would be rendered moot if we granted the

‘If limited solely to the Estes report, defendant’s argument is stronger. The Estes report
was not referred to at all in the appcals committee's letter and so it is not entirely clear the
committee relied on that report. Moreover, the Estes report was drafted by a nurse rather than an
independent psychologist.

5At the end of her reply brief, plaintiff requested fees pursuant to 29 U.S.C. § 1132(g). If
plaintiff wishes to pursue her request for fees, she should file a separate motion, and we will then
set a briefing schedule on the issue.

5.



‘Minyte Onder Form (06/97)

United States District Court, Northern District of Ilinois

Name of Assigned Judge John A. Nordberg Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER |9/¢ /6/p ~90-C-2568- DATE 11/2/2000
CASE Flood vs. Long Term Disability Plan
TITLE

[In the following box {a) indicate the party filing the motion, c.g. plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
nature of the motion being presented.)

MOTION:

DOCKET ENTRY;

a5) a Filcd motion of ( use listing in “Motion” box above.]

(2) a Brief in support of motion due

Q) i Answer brief to motion due__. Reply to answer brief due__

@ oO Ruling/Hearing on _setfor at

(5) o Status hearing{held/continued to] {set for/re-sct for}on set for_ at,
(6) aq Pretrial conference[held/continued to] [set for/re-set for]on__—setfor, at,
(7) Oo Trial{set for/re-set for]on__at

(8) oO [Bench/Jury trial] [Hearing] held/continuedto at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OERCP4(m) General Rule 21 OFRCP4(a)(1) OFRCP41(a)(2).

ao [Other docket entry] For the foregoing reasons, the court grants the motion to remand (11-1) and
remands this case for a new determination of benefits consistent with this opinion. The motion to compel
(10-1) discovery is denied as moot.

ql) {For further detail see order attached to the original minute order.)
No notives reqnired, advised in open court,
No notices required. umber a retiecs ;
Notices maifed by judge's staff
Notified counsel by telephone. Bla
Y | Docketing to mait notices. Wy 4 eh
Mail AO 450 form. eo OEE cea ieee TPA ahead dopey nis on
Copy to judge/magistrate judge.

hi bead

dutc mnited nance

couritoom
TP deputy's
initials

Date/time received in
central Clerk's Office mailing deputy initials



motion to remand. In light of our ruling herein, we will deny the motion to compel as moot.

CONCLUSION

For the foregoing reasons, the court grants the motion to remand and remands this case
for a new determination of benefits consistent with this opinion. The motion to compel

discovery is denied as moot.

ENTER:

6.



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CHARLENE MARIE FLOOD,
Plaintiff

No. 00 C 2568
v.

LONG TERM DISABILITY PLAN FOR
FIRST DATA CORPORATION, and
CONTINENTAL CASUALTY
COMPANY, a CNA Company,

Judge Jobn A. Nordberg

“StthPres-
PAaia200

Defendants.

I eee ne

MEMORANDUM OPINION AND ORDER,

Plaintiff has filed a claim for long term disability insurance benefits under an ERISA
plan, 29 U.S.C. § 1132(a)(1)(B). Currently before the court is a motion to remand this case for a
re-determination by the plan administrator. For the reasons set forth below, the motion is
granted.

BACKGROUND!

Plaintiff Charlene Marie Flood was an active full-time employce of First Data
Corporation until May 3, 1999 when she quit working due to what she describes in her complaint
as “major depression with anxiety.” She then filed a claim for disability benefits under a long

term disability plan sponsored by her employer (the “Plan”). Plan benefits are paid through an

‘The following facts are taken from the complaint und the exhibits attached by both
parties to their briefs, For purposes of this motion, the facts are generally undisputed.

ale



insurance policy underwritten by defendant Continental Casualty Company, a CNA Company
(“Continental Casualty” or “defendant”,

On September 27, 1999, Continental Casualty denied the initial request for benefits in a
three-page letter written by Frank Martinko, a claim analyst. Martinko reviewed plaintiff's
medical records, which consisted primarily of “therapy notes” made by her two treating doctors
--Dr. Theodore Handrup, Jr. (a psychiatrist) and Dr, Robert Wynkoop (a psychologist) - during
multiple office visits she made to each of them during the summer and fall of 1999, Based on his
review of these records, Martinko concluded that plaintiff was initially disabled from her anxicty
but that she improved over the next month and thus was not continuously disabled over the entire
three-month period, as was required under the Plan to qualify for long term benefits,

With the help of counsel, plaintiff then filed an internal administrative appeal, which was
denied in a March 13, 2000 letter written by Robert Troxell, a member of the appeals committee.
The appeals committee reviewed the claim file “in its totality, during a comprehensive,
independent appraisal” and concluded that the original decision to deny long-term benefits “was
correct and true to the policy’s provisions.” Ag part of its review process, the committee sent
plaintiff's claim file to a licensed psychologist for an “Independent Peer Review.” This
psychologist, Dr. Charles W, Paskewicz, prepared two letter reports for the committce -- a 4-
page letter dated March 9, 2000 and a follow-up one-page letter dated March 10, 2000.? Dr.
Paskewicz concluded that plaintiff's “inability to work at her current job is work-site specific”

and that she “does not have a mental/nervous problem of such severity that would interfere with

>For convenience, we will refer to the two letters together as the Paskewicz report.

2.