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Erin Rose Ronstadt, SBN 028362

Kevin Koelbel, SBN 016599

OBER & PEKAS, PLLC

3030 N. 3rd Street, Suite 1230

Phoenix AZ 85012

Phone: (602) 277-1745

Fax: (602) 761-4443

erin@oberpekas.com kevin@oberpekas.com

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA

Shane Balderston, a single man,

Plaintiff,

v.

Life Insurance Company of North America,

Defendant.

No.

COMPLAINT

For his claims against Defendant Life Insurance Company of North America (“LINA”

or “Defendant”), Plaintiff Shane Balderston (“Mr. Balderston” or “Plaintiff”) alleges as 

follows:

Jurisdiction, Venue And Parties 

1. This action arises under the Employee Retirement Income Security Act of 

1974, 29 U.S.C. §§ 1001 et seq. (“ERISA”).

2. Mr. Balderston was a participant and beneficiary of a long-term disability 

(“LTD”) plan (the “Plan”) as an employee of Level 3 Communications, LLC.

3. The Plan is a purported ERISA benefit plan established and maintained by 

Level 3 Communications for the benefit of its employees. 

4. Level 3 Communications fully insures LTD benefits under the Plan with a 

Policy, Number LK980182 (the “LTD Policy”). 

5. Mr. Balderston is a single man, currently residing in Maricopa County, 

Arizona and has been a resident of Maricopa County at all times since becoming a Plan 

participant.

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6. At the time Mr. Balderston sought LTD benefits under the Plan, LINA 

administered claims for Level 3 Communications under the Plan, acted on behalf of the 

Plan, and acted as an agent for Level 3 Communications. 

7. LINA acted as an agent to Level 3 Communications and/or the Plan to make 

final decisions regarding the payment of disability benefits for the Plan and to administer 

the Plan. 

8. LINA administered claims under the name CIGNA.

9. LINA has its principal place of business in the state of Pennsylvania. 

10. LINA is licensed and authorized to do business in Maricopa County, Arizona, 

and resides and is found within Maricopa County within the meaning of the jurisdiction and 

venue provisions of ERISA, 29 U.S.C. § 1132 and 28 U.S.C. § 1391.

11. This Court has jurisdiction over the subject matter of this action under 

ERISA, 29 U.S.C. §§ 1132(a), 1132(e)(1), and 28 U.S.C. §§ 2201-02 (declaratory judgments). 

12. Venue is proper in this Court under ERISA, 29 U.S.C. § 1132(e)(1) and 28 

U.S.C. § 1391(b).

13. Mr. Balderston is informed and believes that LINA does not have 

discretionary authority under the Plan.

14. Because discretionary authority has not been delegated to LINA, LINA

should not be entitled to any deference in its decision-making in light of the facts and 

circumstances of this claim. 

15. Mr. Balderston is entitled to de novo review of his claim.

GENERAL ALLEGATIONS

LTD Plan Language 

16. In order to meet the definition of Disability under the LTD Policy, Mr. 

Balderston must be “unable to perform the material duties of [his] Regular Occupation; and 

unable to earn 80% or more of [his] Indexed Earnings from working in [his] Regular 

Occupation,” “solely because of Injury or Sickness.” 

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17. In order to meet the definition of Disability under the LTD Policy after 

Disability Benefits have been payable for 24 months, Mr. Balderston must prove that 

“solely because of Injury of Sickness” he is “unable to perform the material duties of any 

occupation for which [he] is, or may reasonably become, qualified based on education, 

training, or experience,” and “unable to earn 80% or more of [his] Indexed Earnings. 

18. The LTD Policy defines “Indexed Earnings” as follows:

For the first 12 months Monthly Benefits are payable. Indexed Earnings will be equal to Covered Earnings. After 12 Monthly Benefits are payable. Indexed Earnings will be an Employee's Covered Earnings plus an increase applied on each anniversary of the date Monthly Benefits became 

payable. The amount of each increase will be the lesser of:

1. 10% of the Employee’s Indexed Earnings during the preceding year of Disability; or

2. the rate of increase in the Consumer Price Index (CPI-W) during the preceding calendar year.

19. The LTD Policy defines “Sickness” as “[a]ny physical or mental illness.”

20. The LTD Policy defines “Injury” as “[a]ny accidental loss or bodily harm 

which results directly and independently of all other causes from an Accident.”

21. The LTD Plan defines Regular Occupation as “[t]he occupation [Mr. 

Balderston] routinely perform[ed] at the time the Disability begins. In evaluating the 

Disability, [LINA] will consider the duties of the occupation as it is normally performed in 

the general labor market in the national economy. It is not work tasks that are performed 

for a specific employer or at a specific location.”

Mr. Balderston’s Employment 

22. Level 3 Communications employed Mr. Balderston as a Senior IT Project 

Manager.

23. Mr. Balderston initially went out of work on August 29, 2014. 

24. Mr. Balderston returned to work from April 7, 2015 to April 21, 2015. 

Because of worsening medical issues, he did not return to work after that. 

25. The material duties of Senior IT Project Manager based on Level 3 

Communications’ job description include the following:

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Ø Advised business stakeholders on optimal scope, phasing and delivery options;

Ø Develops and proposed high-level functional architecture;

Ø Solicits and gathers detailed business requirements;

Ø Validates systems requirements against business requirements;

Ø Demonstrated subject-matter expertise in assigned area(s);

Ø Understands and explains business drives and balances those with solution 

options;

Ø Estimates high-level effort for programs – analysis, design, development and testing;

Ø Leads and guides development teams through program completion and rollout;

Ø Facilitates communication of scope and outcome of program to executive-level 

business stakeholders;

Ø Creates the Concept of Operations/Vision documents.

26. According to Level 3 Communication’s job description, Mr. Balderston’s

occupation as a Senior IT Project Manager required the following physical and cognitive 

demands:

Ø Ability to sit five to seven hours per day;

Ø Ability to stand or walk one to three hours per day;

Ø Ability to bend, reach, stoop and crouch throughout the day;

Ø Ability to lift and/or move up to 10 pounds; 

Ø Ability to hear, speak and see effectively to perform the necessary tasks of the 

position;

Ø Ability to use keyboards and to view data on computer displays; and

Ø Ability to communicated verbally and in writing to the needs of others

Mr. Balderston’s Disability 

27. In 2014, Mr. Balderston was hospitalized for a severe, antibiotic resistant 

cellulitis infection in his right leg. Mr. Balderston spent several months in and out of the 

hospital fighting the infection. He underwent a long course of antibiotic therapy. 

28. While hospitalized, the infection worsened requiring antibiotics to be 

administered through a peripherally inserted central catheter (“PICC”) line. Mr. Balderson 

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experienced a severe complication, thrombosis, from the insertion of the PICC line. As a 

result, the PICC line was discontinued and a central line was placed to administer further 

medication. 

29. After that, Mr. Balderston underwent extensive medical work-up for his 

blood clots. During his work-up, several issues were identified. A CT scan of his neck 

revealed internal jugular vein thrombosis or an occlusion/clot in his right internal jugular 

vein. Mr. Balderston was also determined to have styloidogenic jugular venous compression 

syndrome. 

30. Mr. Balderston suffers from chronic and debilitating occular headaches and 

visual disturbances, which are consistent with the diagnoses in the preceding paragraph.

31. Mr. Balderston also suffers from other medical issues including, but not 

limited to, cervical spine degenerative disc disease, chronic pain syndrome, polyarthralgia, 

osteoarthritis, irritable bowel syndrome, and chronic foot and ankle pain following multiple 

surgical ligamentous repair. 

32. Mr. Balderston’s diagnoses are substantiated by objective evidence, including 

diagnostic imaging and physical examination findings. 

33. Mr. Balderston experiences cognitive difficulties secondary to his pain.

34. Mr. Balderston’s ability to seek more aggressive treatment is stunted by his 

lack of income since LINA’s termination of his LTD benefits.

Mr. Balderston’s LTD Benefits 

35. On April 1, 2015, LINA approved Mr. Balderston’s LTD claim. LINA 

approved the claim based on Mr. Balderston’s history of blood clots and recent hospital 

admissions. 

36. LINA issued Mr. Balderston’s first benefits check in the amount of $4,454, 

which covered the period, February 28, 2015 through March 27, 2015. 

37. A couple weeks after his claim had been approved, Mr. Balderston notified 

LINA that he had persuaded his physician, Dr. Woods, to release him back to work. 

Despite his best intentions, Mr. Balderston had difficulty managing his work hours. He 

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communicated this to LINA. 

38. Based on his return to work, LINA closed Mr. Balderston’s claim effective 

April 5, 2015.

39. Mr. Balderston returned to his employment from April 7, 2015 to April 21, 

2015 until he was hospitalized again on April 21, 2015 for worsening headaches and neck 

pain. 

40. Mr. Balderston was re-admitted to the hospital again in May 2015 and 

underwent further testing. Mr. Balderston notified LINA of his hospital admissions in April 

and May 2015.

41. Based on his hospital admissions, diagnosis of styloidogenic jugular venous 

compression syndrome, history of clots, cellulitis, swelling in his upper and lower 

extremities, and ongoing evaluation, LINA determined that the medical evidence continued 

to support Mr. Balderston’s Disability from his Regular Occupation. 

42. On May 20, 2015, LINA reopened Mr. Balderston’s LTD claim.

43. LINA continued to monitor Mr. Balderston’s claim, and on December 2, 

2015, notified Mr. Balderston that it was referring him for an Independent Medical 

Examination (“IME”). 

44. LINA employed MES Solutions (“MES”) to coordinate the IME. 

45. Mr. Balderston attended the IME on February19, 2016. The IME was 

performed by Dr. Scott Krasner.

46. In his report, Dr. Krasner noted that Mr. Balderston appeared cooperative 

throughout the exam. He opined that “[g]iven his history, continued symptomatology, use 

of medications, and findings on exam, Mr. Balderston [had] moderate effects on his 

functional capabilities.” Despite this conclusion, Dr. Krasner concluded that Mr. Balderston 

was capable of sitting constantly.

47. LINA reviewed Dr. Krasner’s IME report on February 29, 2016. No actions 

were made on Mr. Balderston’s claim on the basis of Dr. Krasner’s report.

48. On November 28, 2016, LINA advised Mr. Balderston that it was initiating 

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an Any Occupation investigation under the LTD Policy. LINA notified Mr. Balderston that 

further testing might be needed. Mr. Balderston reminded LINA that he had undergone an 

IME earlier that year.

49. LINA scheduled another IME for Mr. Balderston. Due to circumstances 

beyond Mr. Balderston’s control, the IME was rescheduled several times.

50. LINA employed Exam Coordinators Network (“ECN”) to coordinate the 

IME and received a 5% discount off the final report. 

51. Mr. Balderston underwent a second IME on March 3, 2017 with Dr. Brian 

McCrary. 

52. Dr. McCrary completed a Physical Ability Assessment for LINA and 

determined that based on his exam of Mr. Balderston, he was capable of sitting constantly 

or more than five and a half hours a day. He also noted that Mr. Balderston could 

frequently stand, walk and/or reach. 

53. Dr. McCrary has a demonstrated record of bias against disability claimants.

Mr. Balderston is informed and believes that Dr. McCrary derives a substantial portion of 

his income from performing IMEs. 

54. On information and belief, Dr. McCrary has performed over 900 IME 

reviews and has testified or been deposed over 125 times. See

https://www.imenet.com/content/imedir.pdf. 

55. In his report, Dr. McCrary was openly adversarial and distrustful of Mr. 

Balderston stating, “There was some tenderness to palpation of the lateral neck, which he 

expressed only when I specifically asked him. He did not express any discomfort when he 

was distracted.” 

56. Out of all of the physicians who have evaluated Mr. Balderston, no one but 

Dr. McCrary, has ever insinuated or implied that Mr. Balderston is malingering or otherwise 

exaggerating his symptoms. Mr. Balderston’s providers have never found any reason to find 

his symptoms less than credible.

57. Dr. McCrary is not qualified to comment on Mr. Balderston’s conditions and 

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lacks the appropriate training and medical experience. According to his SEAK profile

(https://www.imenet.com/content/imedir.pdf), Dr. McCrary’s specialty focus is: 

“Occupational Medicine, Toxicology – Medical Toxicology, Causation analysis, 

Musculoskeletal Injury, Wound Care, Hyperbaric Medicine, Diving Medicine, Osteopathy, 

Impairment rating, Toxicology, Aerospace Medicine, Aviation Medicine, Disability claims, 

FMLA, Return to work, Long term disability, Second opinions and peer reviews, Fitness for 

duty evaluation.”

58. Prior to the second IME, LINA documented the details of its “AO 

Investigation.” It noted that Mr. Balderston continued to have symptoms and was 

undergoing appropriate treatment. LINA also noted that Mr. Balderston had less than 

sedentary capacity stating that his functional abilities were “less than [his] own occ,” which 

LINA had previously identified as a sedentary occupation. 

59. Dr. McCrary’s opinion is contrary to LINA’s prior assessment of functional 

capacity, as LINA found restrictions and limitations precluding Mr. Balderston’s ability to 

work in his Regular Occupation, a sedentary occupation.

60. On March 10, 2017, LINA reviewed Dr. McCrary’s IME report. 

61. LINA referred the claim to an internal vocational rehabilitation counselor for 

a Transferable Skills Analysis (“TSA”). Instruction was made for the TSA to be performed 

based off of Dr. McCrary’s report. 

62. Based on the restrictions and limitations set forth by Dr. McCrary, LINA 

determined as part of its TSA that Mr. Balderston had the “reasonable functional capacity” 

to perform two occupations: Manager, Computer Operations and Project Manager. The 

TSA noted that Manager, Computer Operations was “Customer’s own occupation.”

63. LINA terminated Mr. Balderston’s claim on March 16, 2017 and issued a 

formal denial letter addressed to Mr. Balderston that day. 

64. The March 16, 2017 denial letter (the “Denial Letter”) proffered little insight 

into the reasons for the denial. It was devoid of any meaningful discussion of the medical 

evidence. Instead, LINA provided the following rationale for its decision:

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Based on the Independent Medical Evaluation performed March 3, 2017, it was 

determined that you are capable of performing a sedentary occupation...

We then referred your claim to our vocational department for review for a 

Transferable Skills Analysis. They considered your work capacity, restrictions and 

limitations, along with your education and employment history, to determine 

occupations that would be able to perform based on your current work experience.

This review confirmed that you would be able to perform the following occupations:

-- Manager, Computer Operations – 169.167-082

-- Project Manager – 189.17-030

The above identified occupations are compatible with your work capacity. 

Additionally, all of the jobs listed above satisfy the earnings requirement for your 

Indexed Covered Earnings under the contract.

At this time, you no longer meet the definition of Disability stated above and your 

claim has been closed. Payments have been made through March 16, 2017 and no 

further benefits are due. 

65. Despite mentioning the IME, LINA did not discuss or reveal any of the IME 

findings in the Denial Letter.

66. On June 23, 2017, LINA received Mr. Balderston’s appeal letter. Because the 

medical records in Mr. Balderston’s file were not current, LINA provided Mr. Balderston 

with additional time to submit more recent records. 

67. While his appeal was pending, Mr. Balderston’s health deteriorated. He was 

admitted to an assistive living facility. 

68. Mr. Balderston retained counsel to assist with his appeal submission.

69. Mr. Balderston’s counsel notified LINA of her representation and requested a 

90-day extension to submit supplemental information in support of Mr. Balderston’s appeal. 

70. Counsel was presented with the option of withdrawing Mr. Balderston’s 

appeal and resubmitting it by January 15, 2018. Counsel agreed to this arrangement on the 

condition that any applicable statute of limitations would be tolled while the appeal was 

pending submission. LINA agreed to remove his appeal from review and toll the deadline 

for appeal until January 15, 2018. 

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71. Out of an abundance of caution, Mr. Balderston filed this lawsuit before 

exhausting the administrative appeal process because the contractual limitation period to 

commence a lawsuit may expire before the administrative appeal process is exhausted. See 

Heimeshoff v. Hartford Life & Acc. Ins. Co, 134 S.Ct. 604, 610 (2013) (rejecting argument that a 

limitations provision cannot commence before accrual of the cause action.)

COUNT I

(Recovery of LTD Plan Benefits)

(Defendants LINA and the LTD Plan)

72. All other paragraphs are incorporated by reference.

73. The Plan is an Employee Welfare Benefit Plan as defined in ERISA, 29 

U.S.C. § 1002. 

74. The Plan represents LTD coverage and a promise to provide LTD benefits 

until Mr. Balderston is no longer Disabled under the terms of the Plan.

75. Mr. Balderston continues to be Disabled. He is unable to perform the 

material and substantial duties of any occupation for which he is qualified by training, 

education, or experience and provides 80% or more of his Indexed Earnings. 

76. Mr. Balderston has claimed the benefits under the Plan to which he is 

entitled.

77. Mr. Balderston reasonably expected that his medical conditions met the 

requirements of Disability as defined by the Plan, and that he would receive benefits under 

the Plan until he reached 65 or until he was no longer disabled.

78. Despite the coverage of Mr. Balderston’s Disability, LINA improperly 

terminated his LTD benefits in breach of the Plan and ERISA. 

79. LINA’s collective conduct was arbitrary, capricious, an abuse of discretion, 

not supported by substantial evidence, and clearly erroneous.

80. Even if discretionary authority was properly delegated to LINA, in light of 

LINA’s wholesale and flagrant procedural violations of ERISA, Mr. Balderston should be 

entitled to de novo review. See Halo v. Yale Health Plan, 819 F.3d 42, 60-61 (2d Cir. 2016) 

(“when denying a claim for benefits, a plan’s failure to comply with the Department of 

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Labor’s claims-procedure regulation, 29 C.F.R. § 2560.503-1, will result in that claim being 

reviewed de novo in federal court, unless the plan has otherwise established procedures in full 

conformity with the regulation and can show that its failure to comply with the claimsprocedure regulation in the processing of a particular claim was inadvertent and harmless.”)

81. Instead of evaluating a participant’s eligibility based on the applicable plan 

language and medical evidence, Mr. Balderston is informed and believes that LINA makes 

claims decisions based on the claims resources and financial risk it faces on certain claims. 

82. LINA wrongfully denied Mr. Balderston’s disability benefits without 

providing a coherent explanation for its denial, and in a way that conflicts with the plain 

language of the Plan, violating 29 U.S.C. §§ 1109, 1132.

83. LINA did not properly consider all of the available evidence when 

terminating Mr. Balderston’s benefits.

84. LINA failed to conduct a full and fair review.

85. LINA blatantly misstated medical evidence for its own financial benefit, e.g., it 

overstated and excessively relied on biased medical reviews. 

86. LINA relied on findings that constitute “clearly erroneous findings of fact” to 

deny Mr. Balderston’s benefits. 

87. LINA abused its discretion by basing its decision on unreliable and inaccurate 

information. When confronted with this knowledge, LINA either ignored the inaccuracies 

or corrected the inaccuracies and created new reasons for denial.

88. Upon information and belief, LINA tainted its IME reviewers by giving the 

reviewers inaccurate information regarding Mr. Balderston, while also failing to provide its 

reviewers with all of the relevant evidence.

89. Upon information and belief, LINA provided its reviewers and vendors with 

internal notes and financial information about the claim, compromising their ability to make 

“independent” medical determinations and creating further bias in reviews. 

90. LINA routinely emphasizes information that favors a denial of benefits while 

deemphasizing other information that suggests a contrary conclusion. 

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91. LINA failed to properly consider all of the medical evidence. 

92. In terminating Mr. Balderston’s LTD benefits, LINA completely disregarded 

evidence that his conditions had not changed or improved. 

93. LINA has no evidence that Mr. Balderston’s conditions changed or improved 

since it determined that he met the definition of Disabled in the LTD Policy. 

94. The IME reviewers arbitrarily reached their opinions based on insufficient 

evidence or investigation. 

95. The IME reviewers were not given the Plan or other important records for 

reaching its decision that Mr. Balderston could perform work. 

96. LINA engaged in other procedural irregularities, which it did to serve its own

financial best interests. 

97. On information and belief, LINA engaged in claim discussions to decide the 

directions of appeals without having reviewed all of the medical evidence, demonstrating its 

predetermined path of terminating benefits. 

98. LINA intentionally gathered evidence to stack the deck in its favor and 

against Mr. Balderston.

99. Mr. Balderston alleges upon information and belief that LINA has a 

parsimonious claims handling history.

100. LINA failed to conduct a “meaningful dialogue” regarding Mr. Balderston’s 

claim. 

101. Under the de novo standard of review, Mr. Balderston need only prove by a 

preponderance of the evidence that he is disabled to be entitled to benefits.

102. Even under the abuse of discretion standard of review, LINA abused its 

discretion, because its decision terminating Mr. Balderston’s disability benefits was arbitrary 

and capricious and was caused or influenced by LINA, its reviewing physicians, and its 

vendors’ financial conflicts of interest. These conflicts of interest precluded the full and fair 

review required by ERISA, 29 U.S.C. 1133(2) and 29 C.F.R. § 2560.503-1(g)(1) and (h)(2). 

103. Mr. Balderston is entitled to discovery regarding the effects of the procedural 

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irregularities and structural conflict of interest that infiltrated the claims handling process 

and also regarding the effects of LINA’s reviewing physicians’, its employees’, and its 

vendors’ financial conflicts of interest, biases, and motivations on the decision terminating 

Mr. Balderston’s LTD claim.

104. Under the de novo standard of review, Mr. Balderston is entitled to discovery 

regarding, among other things, the credibility of LINA’s medical reviews and LINA’s lack 

of partiality due to its financial conflicts of interest. Opeta v. Nw. Airlines Pension Plan for 

Contract Employees, 484 F.3d 1211, 1217 (9th Cir. 2007) (under the de novo standard of review, 

new evidence may be admitted regarding, among other things: “the credibility of medical 

experts... [and] instances where the payor and the administrator are the same entity and the 

court is concerned about impartiality” (quoting Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 

1017, 1026-27 (4th Cir. 1993))).

105. Pursuant to the coverage provided in the LTD Plan, to ERISA 29 U.S.C. § 

1132(a)(1)(B), and to applicable federal law, Mr. Balderston is entitled to recover all benefits 

due under the terms of the Plan, and to enforce his rights under the Plan. 

106. Mr. Balderston is entitled to reinstatement of any other employee benefits 

that were terminated, discontinued, or suspended as a result of the termination of his

disability benefits. He is entitled to a restoration of the status quo ante before LTD benefits 

were wrongfully terminated. 

107. Pursuant to 29 U.S.C. § 1132(g), Mr. Balderston is entitled to recover his 

attorneys’ fees and costs incurred herein from LINA.

108. Mr. Balderston is entitled to prejudgment interest on the benefits to which he 

is entitled and on his damages at the highest legal rate until paid.

COUNT II

(Breach of Fiduciary Duty)

(LINA)

109. All other paragraphs are incorporated by reference.

110. Under 29 U.S.C. § 1132(a)(3), this Court may enjoin any act or practice that 

violates ERISA or the terms of the Plan, as well as grant other appropriate equitable relief, 

Case 2:17-cv-04445-DGC Document 1 Filed 11/30/17 Page 13 of 16
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& PEKAS, PLLC

3030 North 3rd Street, Suite 1230

Phoenix, AZ 85012

(602) 277-1745

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provided that such relief is not recoverable under 29 U.S.C. § 1132(a)(1)(B). 

111. LINA is a fiduciary and owes fiduciary duties to Plan participants, including 

Mr. Balderston. 

112. Under 29 U.S.C. § 1104(a), LINA is required to discharge its duties with the 

care, skill, prudence, and diligence under the circumstances that a prudent man acting in like 

capacity and familiar with such matters would use under 29 U.S.C. § 1104(a). 

113. Under ERISA, which is founded in trust principles, LINA is required to 

administer claims in the best interests of beneficiaries and participants as part of its fiduciary 

duty.

114. In multiple ways throughout the administration of Mr. Balderston’s claim, 

LINA breached its fiduciary duties pursuant to 29 U.S.C. § 1132(a)(3). 

115. LINA’s arbitrary and capricious claims handling generally constitutes a breach 

of fiduciary duty, because LINA’s claims handling was discharged imprudently and caused 

Mr. Balderston harm that cannot be recovered under 29 U.S.C. § 1132(a)(1)(B). 

116. LINA’s actions have caused Mr. Balderston serious harm. 

117. Moreover, Mr. Balderston now owes significant attorneys’ fees because of 

LINA’s breaching conduct. 

118. By unreasonably denying Mr. Balderston’s benefits, LINA breached its 

fiduciary duties. To the extent that LINA’s denial of benefits caused Mr. Balderston harm 

unrecoverable under 29 U.S.C. § 1132(a)(1)(B), then that harm is recoverable under 29 

U.S.C. § 1132(a)(3). 

119. On information and belief, LINA instructs and/or incentivizes certain 

employee(s) to terminate fully insured LTD claims and appeals based on bias or its financial 

interests. 

120. Mr. Balderston is informed and believes that LINA’s employees are trained in 

administering claims in the best interests of LINA, not Plan participants. LINA

demonstrated bias and malice against Mr. Balderston through its employees. Instead of fully 

and fairly reviewing the medical evidence, LINA unreasonably denied Mr. Balderston’s

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& PEKAS, PLLC

3030 North 3rd Street, Suite 1230

Phoenix, AZ 85012

(602) 277-1745

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claim based on unreliable evidence. 

121. LINA’s failure to act prudently and in the best interests of Mr. Balderston is a 

breach of fiduciary duty requiring appropriate equitable relief following discovery of LINA’s 

conduct as it relates to Mr. Balderston’s claim.

122. Mr. Balderston is informed and believes that LINA has targeted claims under 

the LTD Plan, including Mr. Balderston’s, which is a breach of fiduciary duty. 

123. On information and belief, LINA breached its fiduciary duty to Mr. 

Balderston by terminating his claim in an effort to avoid its financial liability. 

124. Based on the facts of this case, Mr. Balderston has “other equitable relief” 

available to him in several forms, including but not limited to surcharge,1 because the relief 

available under 29 U.S.C. § 1132(a)(1)(B) does not make Mr. Balderston whole for his losses 

from LINA’s breaching conduct. 

125. The Court has broad discretion to fashion appropriate relief to make Mr. 

Balderston whole and should mold the relief necessary to protect the rights of the 

participants. 

126. Mr. Balderston is entitled to injunctive or mandamus relief under 29 U.S.C. § 

1132(a)(3). 

127. He is entitled to enjoin any act or practice by LINA that violates ERISA or 

the Plan, or seek other appropriate equitable relief that is traditionally available in equity. 

128. LINA was unjustly enriched as a result of its breach of fiduciary duty 

violations, because it wrongfully withheld Mr. Balderston’s benefits for its own profit.

129. LINA engaged in several procedural violations in an attempt to circumvent 

its obligations under ERISA, and these violations are by definition under 29 U.S.C. § 

1132(a)(3) conduct that can be enjoined by this Court. 

130. LINA acted with malice and in bad faith against Mr. Balderston, which 

 1 A surcharge is a kind of equitable monetary remedy against a trustee, which puts the beneficiary 

in the position he would have attained but for the trustee’s breach. Surcharge extends to a breach of trust committed by a fiduciary encompassing any violation of a duty imposed upon that 

fiduciary.

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& PEKAS, PLLC

3030 North 3rd Street, Suite 1230

Phoenix, AZ 85012

(602) 277-1745

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constitutes a violation of its fiduciary obligations. 

131. ERISA “does not elsewhere adequately remedy” the injuries caused to Mr. 

Balderston by LINA’s breach of fiduciary duty violations.

132. As a direct and proximate result of the breaches of fiduciary duty, Mr. 

Balderston suffered actual, significant financial harm and has incurred financial expense.

133. Mr. Balderston is entitled to prejudgment interest on the benefits to which he 

is entitled and on his damages at the highest legal rate until paid in full.

134. Pursuant to 29 U.S.C. § 1132(g), Mr. Balderston is entitled to recover his

attorneys’ fees and costs incurred herein from LINA.

WHEREFORE, on all claims, Mr. Balderston prays for entry of judgment against

Defendants as set forth in this Complaint, which includes:

A. All past LTD benefits under the terms of the LTD Plan;

B. Clarifying and determining Mr. Balderston’s rights to future benefits under 

the terms of the LTD Plan;

C. For any other benefits Mr. Balderston may be entitled to receive under the 

LTD Plan due to his disability;

D. All other equitable relief that is proper as a result of LINA’s breaches of 

fiduciary duties;

E. An award of Mr. Balderston’s attorneys’ fees and costs incurred herein;

F. An award of prejudgment interest on benefits and damages at the highest 

legal rate until paid; and

G. For such and further relief as the Court deems just, equitable, and reasonable.

Dated this 30th day of November 2017.

OBER & PEKAS, PLLC

By: s/ Kevin Koelbel

Erin Rose Ronstadt

Kevin Koelbel

Attorneys for Plaintiff

Case 2:17-cv-04445-DGC Document 1 Filed 11/30/17 Page 16 of 16