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Kristin Cox, SBN 030240

Erin Ronstadt, SBN 028362

OBER & PEKAS, PLLC

3030 North 3rd Street, Suite 1230

Phoenix, AZ 85012

(602) 445-5667 Phone

(602) 761-4443 Fax

kristin@oberpekas.com 

erin@oberpekas.com

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA

Gale Boyes, a single woman,

Plaintiff,

v.

Banner Health, a plan administrator; Banner Health Master Health and Welfare 

Benefits Plan, an ERISA benefit plan; and 

Life Insurance Company of North America, a Cigna company, a plan fiduciary;

Defendants.

No. 

COMPLAINT

For her claims against Defendant Banner Health (“Banner”); Defendant Banner 

Health Master Health and Welfare Benefits Plan (the “Plan”); and Defendant Life 

Insurance Company of North America (“LINA”), a Cigna company (collectively 

“Defendants”), Plaintiff Gale Boyes (“Plaintiff” or “Ms. Boyes”) 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. The Plan is a single-employer welfare benefit plan that offers various 

welfare benefits, including group short and long-term disability (“LTD”) benefits.

3. Banner is the Plan Sponsor, Plan Administrator, and Employer for the 

Plan. 

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3030 North 3rd Street, Suite1230

Phoenix, AZ 85012

(602) 277-1745

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4. The Plan and Banner, a large corporation, have their principal place of 

business in the State of Arizona. 

5. Banner administered the Plan to its employees, including Ms. Boyes.

6. Ms. Boyes is a participant and beneficiary of the Plan by virtue of her 

former employment with Banner. 

7. Ms. Boyes is a single person. She was formerly a resident of Pinal County 

and is now a resident of Maricopa County, Arizona.

8. LINA is a licensed insurance company authorized to write LTD insurance 

policies in Arizona. 

9. LINA is domiciled in the Commonwealth of Pennsylvania and the State of 

Connecticut and is a wholly owned subsidiary of CG Corporation, a Connecticut holding 

company. CG Corporation is in turn a wholly owned subsidiary of CIGNA Holdings, 

Inc., a Delaware holding company. The parent company of CIGNA Holdings, Inc. is 

Cigna Corporation, a Delaware holding company. 

10. Ms. Boyes is informed and believes that Banner and LINA are either 

named fiduciaries of the Plan pursuant to 29 U.S.C. § 1133(2); deemed fiduciaries 

pursuant to 29 U.S.C. § 1002 (21)(A); or designated fiduciaries pursuant to 29 U.S.C. § 

1105(c)(1)(B).

11. LINA had actual or apparent authority to act as a fiduciary on behalf of the 

Plan. 

12. Defendants are licensed and authorized to do business in Maricopa 

County, Arizona, and reside or are 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.

13. 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).

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& PEKAS, PLLC

3030 North 3rd Street, Suite1230

Phoenix, AZ 85012

(602) 277-1745

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

§ 1391(b).

GENERAL ALLEGATIONS

15. All previous and succeeding paragraphs are incorporated by reference.

Cigna’s Claim Reserve Buy-Out Program

16. Cigna is a global health service organization that provides medical, dental, 

disability, life and accident insurance and related products and services in the United 

States and selected international markets.

17. Cigna’s “Group Disability and Life” segment provides insurance products 

and related services for group short and LTD insurance, group life insurance, and 

accident and specialty insurance. These products and services are provided by 

subsidiaries of Cigna Corporation, including LINA.

18. According to Cigna’s 2012 Annual Report, the majority of Cigna’s 

products are offered to employers, including sponsors of ERISA employee benefits 

plans. Cigna represents itself as an industry leader in returning employees to work 

quickly. Cigna’s Group Disability and Life programs are designed to help improve 

employee productivity and lower employers’ overall absence costs.

19. The majority of products and services provided through Cigna’s Group 

Disability and Life segment are fully insured, which means that Cigna assumes the risk 

for any claims and/or costs that arise under the issued disability policy. 

20. In addition to its fully insured disability products, Cigna and its 

subsidiaries, including LINA, also contract with employers with self-funded disability 

plans. In exchange for service fees, Cigna administers claims and performs other plan 

related services. The employer, however, remains responsible for paying any claims 

under the plan. 

21. On information and belief, in an effort to expand its disability product line 

and to capture self-funded claims, Cigna and its subsidiaries, including LINA, also 

Case 2:15-cv-02502-ROS Document 1 Filed 12/08/15 Page 3 of 41
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market and sell LTD insurance policies to employers through its Claim Reserve Buy-Out 

Program (the “RBO Program”).

22. On information and belief, under Cigna’s RBO Program, Cigna and its 

subsidiaries, including LINA, acquire blocks of open disability claims from employers 

under self-funded plans. In exchange for a fixed payment or premium, Cigna insures and 

assumes liability for the management and payment of those claims moving forward. 

23. Cigna markets its RBO Program to employers as an alternative to selffunding, whereby employers are able to eliminate the compliance issues and claim risks 

associated with managing and funding their own disability programs. 

24. In its marketing materials to employers, Cigna boasts the many advantages 

of participation in its RBO Program. Cigna advertises the following benefits for the 

employer: the ability to protect against claims volatility and adverse economic events, 

the ability to avoid the risks associated with reserve funding, favorable tax deductions 

for the buy-out price, and maintaining strong employee relations by helping to avoid 

benefit claim lawsuits.

25. In its marketing materials, Cigna also advertises its success in shortening 

the lives of disability claims. Under its RBO Program, Cigna claims that nearly 10 

percent of LTD claims showed shorter durations.

Banner’s Transition to a Fully Insured Plan under Cigna’s RBO Program

26. In 2001, Banner established the Banner Health Master Health and Welfare 

Benefits Plan, No. 501, for the benefit of its employees.

27. Initially, LTD benefits under the Plan were self-funded by Banner and paid 

from its general assets.

28. However, beginning on October 1, 2012, Banner converted its LTD benefit 

program to a fully insured program through LINA. With respect to these benefits, the 

Plan transitioned from a self-funded and self-administered plan to a fully insured plan. 

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29. On information and belief, Banner entered into two separate insurance 

contracts with LINA in 2012 to provide LTD coverage under the Plan: Group Policy No. 

LK-980211 and Group Policy No. RBO-030026 (collectively the “Policies”).

30. On information and belief, Group Policy No. LK-980211 insures LTD 

claims made on or after October 1, 2012 by Banner employees.

31. On information and belief, Group Policy No. RBO-030036 (the “RBO 

Policy”) insures existing LTD claims made and approved by Banner prior to October 1, 

2012. 

32. Ms. Boyes is informed and believes that the RBO Policy was issued to 

Banner under Cigna’s RBO Program.

33. In exchange for premiums from Banner, LINA fully insured all claims 

made under the Policies and assumed financial liability for said claims.

34. Ms. Boyes is informed and believes that Banner paid LINA a $14,022,000

premium for the RBO Policy to accept all of its open and existing claims, which were 

previously funded by Banner.

35. On information and belief, the RBO Policy provides LTD coverage to all 

“Covered Person[s]” under the policy.

36. On information and belief, the RBO Policy defines a Covered Person as a 

participant in the Plan who has been determined to be totally disabled and to qualify for 

benefits under the Plan, and who is listed in Exhibit B.

37. On information and belief, as the named policyholder of the RBO Policy, 

Banner agreed to provide LINA with Exhibit B, which it represented and warranted to be 

an accurate and complete list of persons who had reported claims for benefits to the Plan 

Administrator, as of the effective date of the Policy, and whose claims for benefits under 

the Plan had not been terminated.

Ms. Boyes’ Claim for LTD Benefits Under the Plan

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38. Ms. Boyes began working for Banner on or about December 6, 1982. By 

the end of her employment on January 12, 2003, she was working as a Charge Nurse 

supervising other nurses. Ms. Boyes dedicated over 20 years of service to Banner before 

leaving due to disability. 

39. Ms. Boyes has suffered from fibromyalgia for over 15 years. The pain 

began while she was still employed with Banner. Despite her attempts to work, the pain 

increased and prompted Ms. Boyes to apply for disability benefits. She continues to have 

generalized muscle pain, myalgia, fatigue, low back and leg pain, stiffness, weakness, 

and depression. 

40. In addition to her fibromyalgia, Ms. Boyes has increased pain in her 

shoulders and knees. Despite multiple surgeries, including left rotator cuff repair surgery 

and total knee replacements in both knees, she continues to have significant pain and 

decreased range of motion.

41. Ms. Boyes worked until she could no longer do so and sought disability 

benefits based on her inability to work. Her last day of work with Banner was on January 

12, 2003.

42. After her receipt of short-term disability (“STD”) benefits, Ms. Boyes was 

approved for LTD benefits effective July 21, 2003. She received them for over ten years 

through December 10, 2013. During this time, her claim had been managed by various 

entities, including but not limited to, Disability Management Alternatives, Banner 

Health/Northern Trust, and LINA. 

43. In a letter dated August 25, 2003, Ms. Boyes was advised that her claim 

for LTD benefits had been approved by the Disability Department at Banner. The letter 

advised that benefits checks would be sent at the beginning of the month and would be 

issued by the Northern Trust Company, which was the bank that handled Banner’s LTD 

Trust at the time. Ms. Boyes was also informed that the maximum period of time that she 

could receive LTD benefits was through August 26, 2023.

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44. Beginning on October 1, 2012 and pursuant to its arrangement under the 

RBO Policy, LINA began administering and processing LTD claims, including Ms. 

Boyes. 

45. On September 13, 2012, a LTD claim was initiated for Ms. Boyes. Her

claim was marked as a “TAKEOVER CLAIM/RBO3006.”

46. Ms. Boyes’ claim was assigned to Jeffrey Smith, a “Settlement Specialist”

for Cigna Group Insurance.

47. On or about October 1, 2012, Mr. Smith initiated a task to issue Ms. 

Boyes’ benefits checks for 10/01, 11/06 and 12/18 with instruction to “set rep pay.”

48. Over the next year, LINA requested medical records and documentation 

from Ms. Boyes’ treating providers. Ms. Boyes’ claim was reassigned to multiple claims 

managers, including but not limited to, Heather Zapf and Deanna Jessup.

49. During this time, LINA paid Ms. Boyes her LTD benefits without 

reservation. 

50. Finally, on or about November 22, 2013, Ms. Boyes’ claim was referred to 

Linda Price for a Nurse Case Manager (“NCM”) staffing. 

51. On November 26, 2013, Ms. Price reviewed Ms. Boyes’ claim. Based on 

her review, she noted:

Comments

staffing for LTD, claim is past AO [Any Occupation], customer is oow [out of 

work] for fibro and L shoulder, treating with PMR and Ortho, Thomas, PMR 

PAA [Physical Ability Assessment] on 11/20/13 documents occassionally [sic] 

for all functions, PAA from AP Thomas on 10/31/13 documents able to lift up to 

10 lbs. PCP-Payne will not fill out PAA but is restricting, Medical does not 

support the PAA from PMR as evidenced by OVN w/ PMR, 11/21/13 documents 

no functional impairments on exam, OVN 10/16/13 documents on exam no 

functional impairments, OVN with AP Thomas orhto [sic] on 9/3/13 documents 

on exam fowared [sic] wlevation [sic] to apporx [sic] 140 degress of L shoulder, 

has excellent strength with testing on rotator cuff musculature some tightness is 

noted wiht [sic] ehte [sic] extremes of abd and ER., Function unclear Ncm to 

escalate. LP Rn Bsn.

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(602) 277-1745

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(emphasis added)

52. Ms. Price improperly summarized Ms. Boyes’ medical records. For 

instance, with respect to Dr. Sahai’s November 21, 2013 office visit note, impairment 

was documented on examination including, but not limited to, diffuse tenderness to 

palpation above and below the waist, tenderness to palpation at the anterior shoulder 

girdles and bicipital grove, positive shoulder impingement signs and positive Hawkin’s 

maneuver. Contrary to Ms. Price’s summary, Ms. Boyes’ functional impairments were 

documented on exam and substantiated the restrictions and limitations outlined in Dr. 

Sahai’s November 20, 2013 Physical Ability Assessment (the “PAA”).

53. In the PAA, which was a form provided by LINA, Dr. Sahai provided her 

assessment of Ms. Boyes’ “physical abilities” based on Ms. Boyes’ complaints and her 

personal observation, examination and functional assessment of Ms. Boyes. Dr. Sahai 

advised that in an eight-hour work day, Ms. Boyes could only tolerate the following 

activities for the specified durations: sitting, standing and walking no more than two and 

a half hours per day. 

54. After her review, Ms. Price spoke with Ms. Boyes over the phone. Ms. 

Boyes clarified her functional limitations, which were noted by Ms. Price:

Call Summary

11/26/13- The customer is a 55yr old female oow for fibromyalgia, DM and L 

shoulder repair on 7/22/13...The customer states that she had both knees replaced 

one and the other 3 yrs later. The customer had her R shoulder repaired a long 

time ago, this is her second surgery on her L shoulder. The customer states that 

she has difficulty with sitting, standing, and walking she has trouble with her calfs 

[sic] she is unable to walk for a long time her calfs [sic] will start to spasm. The 

customer states that if she sits for a long time she will have a hard time standing 

up straight... The customer states that her sister lives with her and she does the 

cleaning, cooking and shopping...The customer states that she has trouble getting 

her clothes on, bending over to put on socks or pulling up her paints... The 

customer states she is obsessive compulsive disorder, depression, along with 

fibromyalgia. The customer is currently on Depakote, Effexor Trazodone, 

Theoretic, TRICOR, Prednisone, Coumadin, Omeprazole, Lisinopril, Metformin, 

Glipizide, Ropinirole Hydroxyzine, Simvastatin, Lopid, Cyclobenzaprine, 

gabapentin, Salsalate, Vicodine...

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& PEKAS, PLLC

3030 North 3rd Street, Suite1230

Phoenix, AZ 85012

(602) 277-1745

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55. On December 5, 2013, Ms. Price reviewed Ms. Boyes’ claim for a second 

time. Because she had not yet received a response from Dr. Sahai, she used the medical 

information on file to make her recommendation. As part of her assessment, Ms. Price 

noted that no other products were associated with the claim. Ms. Price concluded, 

“Medical does not support the R/Ls from PAA dated 11/20/13 from AP-Sahai, pain 

management as evidenced by the following. There is reported pain by the customer due 

to a diagnosis of fibromyalgia however that is [sic] no measurable functional 

impairments documented by AP-Sahai due to her fibromyalgia. There are no diagnostic 

studies on file to support the diagnosis for fibromyalgia. Ncm will staff claim with 

MD...”

56. That same day, Ms. Boyes’ claim was referred to LINA’s Associate 

Medical Director (“AMD”), Paul Seiferth, M.D., for further staffing. 

57. On information and belief, Dr. Seiferth received his medical degree in 

1982 from the Autonomous University of Guadalajara School of Medicine. After his 

internship and residency in New York and Pennsylvania, he worked as an Emergency 

Room Staff Physician for various medical establishments in Pennsylvania.

58. On information and belief, Dr. Seiferth began working for LINA as an 

AMD or Lead Medical Director in 2003. Ms. Boyes is informed and believes that Dr. 

Seiferth is an employee of LINA and draws a substantial salary for his employment.

59. After reviewing Ms. Boyes’ claim, Dr. Seiferth concluded that her 

restrictions and limitations were not supported. Dr. Seiferth failed to provide any 

explanation beyond a two-sentence assessment. Dr. Seiferth’s assessment was 

conclusory and did not provide substantial support for the termination of Ms. Boyes’ 

LTD benefits. His summary of only two office visit notes from Drs. Sahai and Thomas 

omitted favorable information, which supported Ms. Boyes’ disability, including diffuse 

tenderness above and below her waist and continued range of motion issues with her 

shoulder.

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& PEKAS, PLLC

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60. On or about December 6, 2013, Ms. Boyes’ claim was referred to 

vocational rehabilitation counselor (“VRC”), Eric Moyer, for a transferrable skills 

analysis (“TSA”). Mr. Moyer was asked to complete a TSA to determine Ms. Boyes’ 

transferable work skills and to determine whether there were transferable occupations 

based on her prior work history, education and restrictions and limitations. 

61. In a December 6, 2013 email, Mr. Moyer was notified LINA did not have 

a job description on file for Ms. Boyes. The claims manager, Deanna Jessup, volunteered 

to request one from Banner. Mr. Moyer declined Ms. Jessup’s offer stating, “As for the 

JD, I don’t think it’s necessary. She was a nurse. That’s about as standard an occupation 

as there is, so it shouldn’t be a problem.”

62. On December 10, 2013, Mr. Moyer completed the TSA. Ms. Boyes’ 

transferable skills were purportedly based on Dr. Desai’s PAA. In his report, Mr. Moyer 

stated, “[t]he analysis of transferability is based on PAA completed by Dr. Sahai dated 

11/20/2013. Per PAA, Ms. Boyes is able to sit, stand and walk occasionally.”

63. Based on her prior education and training, Mr. Moyer concluded that Ms. 

Boyes had the following transferable skills: applying technical knowledge, common 

sense and special medical skills to care for sick or handicapped people; instructing, 

planning and directing work of others; keeping accurate records; and distinguishing 

shapes, forms and colors. 

64. Based on Ms. Boyes’ transferable skills, Mr. Moyer identified four 

occupations that she could purportedly perform based on the Queen Creek labor market. 

The occupations he found included: Surveillance-System Monitor, Information Clerk, 

Cardiac Monitor Technician, and Gate Guard. These occupations had a sedentary and 

light work strength demand, and required “sitting most of the time” under the Dictionary 

of Occupational Titles (“DOT”) framework used by LINA. 

65. The occupational alternatives that Mr. Moyer found were not consistent 

with Dr. Sahai’s PAA. Based on Dr. Sahai’s PAA, Ms. Boyes had a less than sedentary 

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level of function. She could only sit “occasionally,” which was defined by LINA as 

between zero (0) to two and a half hours (2.5) hours of an eight-hour workday. 

66. The transferable skills and the occupational alternatives that were 

previously found by Mr. Moyer are questionable. Ms. Boyes has an impressive 

employment history; she worked as a Head Nurse for several years prior to her 

disability. The transferable skills and occupational alternatives identified by Mr. Moyer 

are not representative of Ms. Boyes experience, training, or education. For instance, 

given Ms. Boyes’ background, it is elusive as to how the occupation of a “Gate Guard” 

is in line with her past vocational experiences. 

67. On December 10, 2013, Ms. Jessup recommended the closure of Ms. 

Boyes’ claim based on Dr. Seiferth’s AMD assessment and Mr. Moyer’s TSA. 

68. Ms. Boyes’ claim was then referred to Senior Claim Manager (“SCM”), 

William Smith, for a “Second Eye Review.” He agreed with Ms. Jessup’s decision to 

deny further benefits and concluded that she had “appropriately reviewed with NCM, 

MD and VRC.”

69. Despite having medical evidence supporting her continuing eligibility, 

LINA terminated Ms. Boyes’ LTD benefits in a letter dated December 10, 2013 

concluding that she was no longer Disabled (the “First Denial”).

70. Shortly after the First Denial, LINA received a responsive letter from Dr. 

Desai to Ms. Price’s faxed questions. Dr. Desai reported that Ms. Boyes was unable to 

frequently sit even with an allowance for a change in position for comfort, and was 

unable to frequently reach or perform fine manipulation or firm grasping. Dr. Desai 

noted that Ms. Boyes’ pain was exacerbated with increased frequency of activities.

71. Despite this, Ms. Price determined that the new medical did not impact the 

prior recommendation. While she admitted that there were complaints of tenderness and 

pain, she concluded that there were no functional impairments documented on exam 

caused by the pain.

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72. As a result of Ms. Price’s recommendation, Ms. Boyes’ claim remained 

closed. In a letter dated December 13, 2013, LINA advised that Dr. Sahai’s response did 

not otherwise change its prior decision.

73. In a letter dated December 31, 2013, Ms. Boyes appealed LINA’s adverse 

determination (the “First Appeal”). 

74. LINA acknowledged receipt of Ms. Boyes’ First Appeal in a letter dated 

January 14, 2014.

75. Ms. Boyes’ claim was referred to Appeal Specialist, Melissa Graham. 

76. On February 7, 2014, LINA received a supporting letter from Dr. Desai 

dated December 30, 2013. In that letter, Dr. Desai stated:

Ms. Boyes is a 55-year-old female who has been under my care for pain 

management for several years. The patient has diagnoses of chronic pain 

syndrome, fibromyalgia, sciatica, and rotator cuff injuries status post repair. The 

patient is on chronic opioid medications in the form of 

hydrocodone/acetaminophen 10/325 for her pain management. She is unable to 

perform any work activities of any kind. She has been on disability for 12 years. 

The patient has polyarticular pain, also related to end-stage osteoarthritis and 

status post knee replacements. The patient cannot perform any lower extremity 

activities due to her sciatica and lower extremity osteoarthritis. She is unable to 

perform upper extremity activities due to polyarticular osteoarthritis and rotator 

cuff injuries. She cannot perform any type of lifting greater than 10 pounds on 

rare occasions, but no repetitive upper extremity activities. She cannot do desk 

work or typing due to her fibromyalgia and her arthritis and rotator cuff injuries. 

She is on medications that can impair cognition and concentration. She should not 

be performing activities that require any long-term attention.

77. On or about February 19, 2014, Ms. Graham referred Ms. Boyes’ claim for 

a Peer Review. The specialty requested was Occupational Health. The stated rationale 

for the Peer Review was “Conflicting Medical Information.”

78. Ms. Boyes’ claim was referred to Professional Disability Associates 

(“PDA”) for a Peer Review. 

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79. PDA advertises itself as the leading provider of independent medical peer 

reviews in the disability insurance industry. PDA boasts a full range of board certified 

medical specialists with over 120 disability-trained physicians and nurses.

80. PDA’s stated mission is to be the premier provider of specialty risk 

management services in the industry and to improve its client’s risk management 

capabilities. PDA fulfills this mission by providing a consultative approach that supports 

its clients in attaining their business objectives.

81. According to PDA’s website, “7 of the top 10 disability insurers in 

America are current clients.” 

82. PDA assigned Ms. Boyes’ claim to Medical Consultant, Dr. Joseph Braun.

83. On information and belief, Dr. Braun began working for PDA as a Peer 

Reviewer and Medical Legal Analyst in June 2013. Prior to that, he managed his own 

company, Braun Professional Enterprises, providing utilization review arbitration, 

disability medical evaluations, and federal workers’ compensation services. His prior 

work history includes serving as a Medical Director for another disability insurer, Aetna, 

and heading its disability medical evaluations. He has also worked as a Medical Director 

for Monsanto and UnitedHealthcare. 

84. Dr. Braun completed his PDA Medical File Review on March 14, 2014.

85. The large majority of Dr. Braun’s report is focused on old medical records 

and completely ignores the limitations set forth by Drs. Sahai and Payne, whom he spoke 

with separately over the phone as part of the Peer Review.

86. During the teleconference, Drs. Sahai and Payne unequivocally maintained 

that Ms. Boyes could not perform sedentary work and had regressed. Dr. Braun’s call 

summaries are provided in relevant part below:

Dr. Sahai PMR, 480-398-1940 AZ

I spoke with Dr. Sahai on 3/10/14. He [sic] stated she saw the claimant last 

month. His [sic] impression is that claimant is declining... When asked about the 

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ability to perform a sedentary job, Physician stated claimant would not be able to 

do sedentary work because of pain that would not allow sitting. Furthermore she 

is on cognitive impairing medications.

Dr. Payne, PCP, 480-543-6680

I spoke with Dr. Payne on 3/11/14. He stated he primarily treats the claimant for 

her diabetes mellitus which has gotten worse. Claimant has just been started on 

insulin. He stated the claimant does have some neuropathy but no other end organ 

damage. Claimant also has hemochromatosis. When asked, he stated he felt that 

claimant would have difficulty performing in a sedentary occupation because of 

her shoulders...

87. Without having ever evaluated Ms. Boyes in-person, Dr. Braun proposed 

restrictions that he thought were more appropriate. For instance, Dr. Braun opined:

... the claimant is capable of exerting 20 pounds occasionally with the left 

shoulder and certainly so with the right shoulder. This is based on the risk of re 

injury to the shoulder only. No limitations/restrictions are supported as to sitting 

except that claimant has polycythemia vera and hemochromatosis and is on 

Coumadin. This would require breaks every 1 hour to change positions on a risk 

basis. The claimant has no condition that prevents standing and walking 

occassionally. 

88. The proposed restrictions listed by Dr. Braun are arbitrary, capricious, and 

unsupported by the medical evidence. His review should not have been considered over 

the weight of Ms. Boyes’ treating providers.

89. Dr. Braun unreasonably faulted Ms. Boyes for having the ability to 

advocate for herself. In his report, he stated, “Claimant was capable of handwriting a 5 

page appeal. Therefore other limitations on the use of the upper extremities are not

supported.” Ms. Boyes’ ability to write a five-page appeal letter has no bearing on her 

ability to perform Any Occupation consistently. 

90. On March 20, 2014, Ms. Graham referred Ms. Boyes’ claim for second 

vocational review. The review was assigned to VRC, Vincent Engel. Mr. Engel was 

asked to review Mr. Moyer’s prior TSA and to advise if the restrictions and limitations 

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in Mr. Braun’s report would interfere with Ms. Boyes’ ability to perform the prior 

occupations identified.

91. Pursuant to Ms. Graham’s instruction, Mr. Engel relied on Dr. Braun’s 

proposed restrictions over and to the exclusion of those set forth by Ms. Boyes’ 

providers to ascertain whether another TSA was necessary. Based on Dr. Braun’s 

restrictions and limitations, Mr. Engel concluded, “Boyes would have the capability to 

perform the occupations identified on the 12/10/13 TSA. Another TSA is not required in 

this situation since the previous TSA is valid...”

92. Despite overwhelming medical evidence supporting Ms. Boyes’ Disability, 

Ms. Graham affirmed the decision to terminate Ms. Boyes’ LTD benefits. She based her 

recommendation on Dr. Braun’s report and Mr. Engel’s vocational assessment.

93. In a letter dated March 28, 2014, LINA upheld the termination of Ms. 

Boyes’ LTD benefits (the “Second Denial”). In the Second Denial, LINA advised Ms. 

Boyes that a second appeal request would be accepted and considered if she had 

different or additional information to submit. 

94. With the assistance of counsel, Ms. Boyes requested relevant information 

under ERISA. In a letter dated July 22, 2014, Ms. Boyes requested a copy of her entire 

claim file and all information relevant to her claim. This included all documents that 

were relied upon in making the benefit determination; were submitted, considered or 

generated in the course of making the benefit determination without regard to whether it 

was relied upon in making the benefit determination; demonstrated compliance with the 

administrative processes and safeguards in making the benefit determination; and 

constituted a statement of policy or guidance with respect to the Plan concerning her 

diagnoses. Specifically, she requested a copies of all her medical records, all 

correspondence to her and to Banner, all medical reviews performed by LINA and its 

consultants, LINA’s internal notes, and the Policy and group insurance contract between 

Banner and LINA. Ms. Boyes’ request was addressed to LINA and also to Banner in its 

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capacity as the Plan Administrator. As the Plan Administrator, Banner was advised that 

it was responsible for ensuring that Ms. Boyes received all documents relevant to her 

claim for benefits.

95. In a separate letter dated July 22, 2014, Boyes also requested copies of the 

Plan documents from Banner. Among the items requested were the Plan document(s) 

executed by Banner controlling the operation of the Plan, the Policy, the group insurance 

contract and/or service contact between Banner and LINA, the Summary Plan 

Description, the Annual Reports or Form 5500 filings, and the Summaries of Material 

Modifications for the Plan. This letter was addressed to Banner in its capacity as the Plan 

Administrator. LINA was copied on the letter. 

96. In response to Ms. Boyes’ request for her claim file, LINA disclosed a 

935-page file. In the cover letter enclosing Ms. Boyes’ file, LINA stated that it had also 

enclosed a copy of the RBO Policy, however, this was withheld from disclosure. 

97. Banner did not respond to Ms. Boyes’ July 22, 2014 letters.

98. With the assistance of counsel, Ms. Boyes timely submitted her second, 

voluntary appeal to LINA on or about September 24, 2014 (the “Second Appeal”). With 

her Second Appeal, Ms. Boyes provided additional evidence for consideration, including 

but not limited to, a sworn declaration statement about her medical conditions, the May 

13, 2013 Regulatory Settlement Agreement (the “RSA”) between LINA and various 

Monitoring and Participating States regarding LINA’s disability insurance claims 

handling practices, and background information regarding LINA’s physician reviewers, 

including Drs. Seiferth and Braun. 

99. In a letter dated October 8, 2014, LINA refused to consider Ms. Boyes’ 

Second Appeal. LINA stated that because the information provided was a copy of Ms. 

Boyes’ administrative file, which was previously reviewed, LINA “could not” consider 

the information for appeal at that time.

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100. LINA’s refusal to accept and consider Ms. Boyes’ Second Appeal was a 

violation of its fiduciary duties to Ms. Boyes and of ERISA’s claims regulations under 

29 C.F.R. § 2560.503-1(h)(2)(iv). Under this regulation, an ERISA fiduciary must

“[p]rovide for a review that that takes into account all comments, documents, records 

and other information submitted by the claimant related to claim, without regard to 

whether such information was submitted or considered in the initial benefit 

determination.” (emphasis added)

101. Through counsel, Ms. Boyes responded to LINA’s October 8, 2014 letter. 

With her response, Ms. Boyes provided additional medical documentation supporting 

her continuing disability.

102. In a letter dated December 4, 2014, LINA finally acknowledged receipt of 

Ms. Boyes’ Second Appeal. LINA advised that a new member of the Appeals Team 

would contact Ms. Boyes regarding her Second Appeal.

103. On December 16, 2014, Ms. Boyes’ Second Appeal was assigned to 

Appeals Specialist, Jamille Biggs. 

104. On or about January 5, 2015, Ms. Biggs referred Ms. Boyes’ claim for a 

second Peer Review. As with the first Peer Review, she requested an Occupational 

Medicine specialist to conduct the Peer Review. Again, the stated rationale for the Peer 

Review was “Conflicting Medical Information.”

105. In the Vendor Referral Form, Ms. Biggs listed Ms. Boyes’ treating 

providers as Dr. Sahai, Dr. Payne, and Ms. Carolyn DeCarli. With the referral, she 

provided “Special Instructions.” She requested that the Peer Reviewer attempt at least 

two phone contacts with each provider. 

106. In a letter dated January 8, 2015, Ms. Boyes’ counsel addressed her 

concerns about the Peer Review. Ms. Boyes’ counsel reminded LINA that based on the 

authorizations it had on file, LINA and the Peer Reviewer only had authorization to 

communicate with her treating providers in writing or by telephone conference arranged 

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through counsel in advance so that it could be properly recorded. Ms. Boyes’ counsel 

advised LINA that to the extent it had already initiated or had already completed 

“telephonic interviews” with Ms. Boyes’ providers, it was acting outside the scope of its 

authorization. 

107. In that same letter, Ms. Boyes’ counsel also renewed her request for the 

RBO Policy, which had never been disclosed to Ms. Boyes.

108. On or about January 20, 2015, Ms. Boyes’ counsel received the purported 

Policy from LINA. Instead of the RBO Policy, LINA disclosed a copy of the Samaritan 

Long-Term Disability Plan Amended and Restated January 1, 1994.

109. Ms. Boyes’ claim was referred to Exam Coordinators Network (“ECN”) 

for the Peer Review. 

110. ECN advertises itself as the leading national provider of medical expert 

procurement and independent medical review services. It provides a wide array of 

services to assist clients in managing the cost of medical claims and cases. ECN’s clients 

include insurance carriers, public and private disability insurers, nurse case managers, 

and risk managers.

111. ECN assigned Ms. Boyes’ claim to Medical Consultant, Dr. Randal 

Wojciehoski. 

112. On information and belief, Dr. Wojciehoski received his Doctor of 

Podiatric Medicine (“DPM”) degree from the New York College of Podiatric Medicine 

in New York City, and his Doctor of Osteopathic Medicine (“DO”) degree at the 

University of New England in Biddeford, Maine. After graduating, he completed his 

residency in internal medicine at the University of Wisconsin-Marshfield Clinic Program 

in Marshfield, Wisconsin. 

113. Dr. Wojciehoski completed his Peer Review report on or about January 19, 

2015. Dr. Wojciehoski’s report consists of only four pages, with the majority of the 

report listing the medical records reviewed.

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114. Dr. Wojciehoski purportedly faxed a request for teleconference on January 

13, 2015 to Drs. Sahai and Payne and Ms. DeCarli. Allegedly, “no responses were 

received with regard to the questions asked.” To date, LINA has not produced or 

disclosed the fax or questions sent to Ms. Boyes’ providers.

115. In his report, Dr. Wojciehoski noted that he received a phone call from Dr. 

Sahai on January 15, 2015 and that it was her opinion that Ms. Boyes “was unable to 

function as a registered nurse.” Dr. Wojciehoski did not have authorization to speak with 

Dr. Sahai telephonically.

116. Dr. Wojciehoski’s opinions were conclusory and without substantial 

support. His opinions were limited to two paragraphs and are provided in their entirety 

below:

Based upon the review of the medical records provided as well as the associated 

documentation, it is my opinion to a reasonable degree of medical probability that 

Ms. Boyes would be capable of working in sedentary capacity based upon her 

chronic pain syndrome, fibromyalgia, and generalized joint pain. Dr. Sahai has 

raised concern with regard to Ms. Boyes [sic] functionality and chronic opioid 

use, but it is my opinion to a reasonable degree of medical probability that Ms. 

Boyes would benefit from maintaining gainful employment in sedentary 

capacity on a fulltime basis.

It is my opinion to reasonable degree of medical probability that based upon my 

conversation with Dr. Sahai that Ms. Boyes does have functional impairment 

secondary to her chronic pain, generalized joint pain, and depression. It is my 

opinion to reasonable degree of medical probability that Ms. Boyes would be 

capable of working in sedentary capacity based upon her physical limitations.

(emphasis added)

117. Relying on Dr. Wojciehoski’s report, Ms. Biggs affirmed the prior 

decision to deny Ms. Boyes’ LTD benefits. In her Medical Investigation Results, she 

noted, “Peer review report completed by Dr. Randal Wojciehoski, Occupational 

Medicine. P2P contact with Dr. Sahai established. After review of the claim file and 

teleconference with Dr. Sahai, it has been determined that there is no evidence to support 

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a global impairment that would prevent Ms. Boyes from performing the duties of any 

occupation, including sedentary work...”

118. In a letter dated February 13, 2015, LINA upheld the First and Second 

Denials (the “Final Denial”).

119. In response to LINA’s Final Denial, Ms. Boyes’ counsel requested all 

relevant documents under ERISA in a written request dated March 25, 2015. Ms. Boyes 

requested disclosure of all information relevant to her claim that was submitted, 

considered or generated by LINA after the Second Denial. She also renewed her request 

for information specifically requested in her July 22, 2014 letter that had not been 

disclosed. This included the Plan document, the RBO Policy, and the group insurance 

contract and/or service contract between Banner and LINA. As with previous requests, 

Ms. Boyes addressed her letter to both LINA and Banner in its capacity as the Plan 

Administrator. Again, Banner was advised that as the Plan Administrator it was 

responsible for ensuring that Ms. Boyes received all documents relevant to her claim for 

benefits.

120. Over the years, Ms. Boyes has tried a number of treatments, which have all 

yielded varying symptom relief. She has tried trigger point injections. She has also been 

on various doses of Vicodin, Gabapentin, and Cyclobenzaprine, which have helped but 

do no completely control the pain. Her pain requires her to take Vicodin every four hours 

for pain relief.

121. On information and belief, should Ms. Boyes remain eligible for LTD 

benefits, she could be entitled to receive benefits until she is 65 years old. This would 

entitled her to benefits until August 27, 2023.

122. Since her last day worked, Ms. Boyes has remained disabled under the 

Plan. 

123. Ms. Boyes cannot engage in Any Occupation with reasonable continuity.

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124. Ms. Boyes continues to be Disabled as defined by the Plan for LTD 

benefits.

125. On information and belief, Ms. Boyes is a Covered Person under the RBO 

Policy, because she was receiving LTD benefits directly from Banner prior to October 1, 

2012. 

126. Ms. Boyes exhausted her administrative remedies under the Plan. 

127. Ms. Boyes satisfied all of the jurisdictional prerequisites to filing her

claims, and her claims are timely before this Court.

128. On information and belief, Ms. Boyes may be entitled to additional 

benefits from Banner as a disabled employee including, but not limited to, health 

insurance, life insurance, supplemental LTD benefits, and retirement/pension credits.

COUNT I

(Recovery of Plan Benefits)

(LINA & the Plan)

129. All previous and succeeding paragraphs are incorporated by reference.

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

U.S.C. § 1002. Defendants are Banner and LINA as the Plan Administrator and/or Plan

fiduciaries under ERISA.

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

until Ms. Boyes is no longer Disabled under the terms of the Plan.

132. Ms. Boyes became Disabled in 2003 and continues to be Disabled. Due to 

her medical conditions and the supporting medical evidence, Ms. Boyes would not be 

able to reliably perform Any Occupation in a satisfactory manner. She has claimed the 

benefits under the Plan to which she is entitled.

133. Ms. Boyes reasonably expected that her conditions met the requirements of 

Disability as defined by the Plan for LTD benefits, and that she would receive benefits 

under the Plan until age 65 or until she was no longer Disabled.

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134. Despite the coverage of Ms. Boyes’ Disability, LINA improperly 

terminated Ms. Boyes’ LTD benefits in breach of the Plan. This breach was arbitrary, 

capricious, an abuse of discretion, not supported by substantial evidence, and clearly 

erroneous.

135. LINA’s determination that Ms. Boyes was not entitled to LTD benefits 

was influenced by an improper conflict of interest. 

136. On information and belief, LINA was motivated to terminate Ms. Boyes’ 

claim, in part, because it was insured under a RBO Policy. LINA’s internal records were 

peppered with notes and references to her claim being an “RBO claim” and “no 

products” claim, which meant that LINA was not expecting any further premiums or fees 

from Banner and that Banner did not have any other insurance products with LINA. 

When LINA first initiated Ms. Boyes’ claim, it tagged her claim as a “takeover claim.”

137. Because LINA had already received the one time, $14,022,000 premium

from Banner to insure claims under the RBO Policy, LINA had no financial incentive to 

pay Covered Persons under the RBO Policy, including Ms. Boyes. 

138. In terminating Ms. Boyes’ LTD benefits, LINA ignored credible medical 

evidence, which supported her continuing eligibility for benefits. LINA ignored critical 

medical records, letters from her treating providers, and other relevant information 

supplied during the administrative appeal process, including sworn declaration 

statements, background information about LINA’s physician reviewers and LINA’s 

RSA.

139. LINA failed to meaningfully address or consider Ms. Boyes’ SSDI award, 

alleging that it had received medical documentation after her award, which did not 

support her Disability. However, the only evidence which supported LINA’s position of 

non-disability were the reviews it had secured from biased peer review companies. Ms. 

Boyes’ conditions had not changed. LINA made no attempt to reconcile its decision with 

the prior findings of Disability. 

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140. Ms. Boyes provided objective medical evidence that was consistent with 

her complaints and supported Disability.

141. Given Ms. Boyes’ declining health, she cannot engage in Any Occupation, 

sedentary or otherwise.

142. LINA acted arbitrarily and capriciously when it selectively reviewed Ms. 

Boyes’ medical records, relying only on those portions of her medical records that 

supported a denial of benefits. LINA unreasonably disregarded medical evidence in Ms. 

Boyes’ file. 

143. On information and belief, LINA handled Ms. Boyes’ claim in an 

adversarial manner and failed to administer the Plan prudently and in Ms. Boyes’ best 

interests. 

144. On information and belief, the peer reviewers and LINA’s employees were 

financially incentivized to deny Ms. Boyes’ claim. This includes LINA’s AMD, Dr. 

Seiferth, and LINA’s peer reviewers, Drs. Braun and Wojciehoski. 

145. The peer reviewers secured by LINA, including but not limited to Drs.

Braun and Wojciehoski, are biased for insurance companies and acted with bias in 

conducting their respective peer reviews.

146. On information and belief, Dr. Braun has a history of bias against 

claimants, which impacted the objectivity and reliability of his review of Ms. Boyes’ 

claim.

147. On information and belief, Drs. Braun and Wojciehoski have been retained 

by LINA on numerous occasions to conduct medical records and/or peer reviews.

148. LINA’s peer reviewers contradicted one another, intentionally misstated 

the medical evidence, and also intentionally misstated the assessments of Ms. Boyes’ 

treating providers.

149. LINA’s peer reviewers arbitrarily reached their opinions based on 

insufficient evidence or investigation.

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150. Drs. Braun and Wojciehoski did not have a reasonable basis for their 

recommended restrictions and limitations. They did not personally examine Ms. Boyes 

nor did they perform their due diligence with respect to getting proper clarification from 

Ms. Boyes’ treating providers.

151. Ms. Boyes’ ability to write a five-page appeal does not demonstrate her 

ability to work in Any Occupation, and LINA’s reliance on Dr. Braun’s conclusions of 

this demonstrates LINA’s malicious, adversarial claims handling. 

152. LINA and its peer reviewers cherry-picked Ms. Boyes’ medical records to 

create a selective and incomplete rendition of Ms. Boyes’ medical history.

153. LINA and its peer reviewers improperly failed to consider Ms. Boyes’ 

subjective complaints, as well as the effect of her medications, in determining whether 

she was disabled under the Plan. 

154. LINA failed to explain why it credited its peer reviewers over Ms. Boyes’ 

treating physicians and unreasonably relied on the peer reviewers’ reports when it knew 

they had conducted inadequate reviews. 

155. LINA unreasonably credited unreliable evidence over reliable evidence in 

its administration and review of Ms. Boyes’ claim, making its determination contrary to 

the clear weight of the medical evidence.

156. Aware that Ms. Boyes’ claim was insured under a RBO Policy, LINA 

handled Boyes’ claim in an adversarial manner and failed to administer the claim in Ms. 

Boyes’ best interests. 

157. LINA deliberately conducted a biased investigation. It avoided and 

unreasonably failed to review all of the medical evidence fully and fairly. It further 

selected reviewers whom it knew to be unreasonable and unqualified to evaluate Ms. 

Boyes’ claim, misrepresented facts to those reviewers, and obtained reviewers from 

vendors known to provide biased reviews. This included but is not limited to LINA’s

retention of peer reviewers from PDA and ECN.

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158. PDA and ECN are companies known to demonstrate bias against claimants 

and to act in the best interests of their clients, the insurance companies. 

159. LINA used personnel and peer reviewers who lacked adequate training and 

experience to evaluate Ms. Boyes’ claim.

160. PDA and ECN frequently provide insurance companies, including LINA,

with reviews that are favorable for the denial of claims. 

161. LINA knew or should have known that PDA and ECN are biased 

companies. 

162. On information and belief, as a company-wide practice, LINA uses PDA 

and ECN, because it knows that PDA and ECN provide reviews that are favorable to the 

denial of claims. 

163. LINA used PDA and ECN in Ms. Boyes’ claim, because it knew that the 

reviews would be unfavorable for the continuation of Ms. Boyes’ benefits. 

164. LINA unreasonably failed to ensure that PDA and ECN provided unbiased 

and/or qualified reviewing doctors for purposes of its claims administration. 

165. LINA unreasonably refused to consider Ms. Boyes’ subjective complaints 

in violation of the Plan. 

166. LINA produced incomplete claims procedure guidelines and failed to 

indicate which procedures were relied upon in its termination of Ms. Boyes’ LTD 

benefits.

167. LINA intentionally and in bad faith withheld relevant information in 

violation of ERISA, which includes but is not limited to, a copy of the RBO Policy, the 

internal rules or guidelines used by LINA in evaluating Ms. Boyes’ claim and 

conditions, and the procedures designed to mitigate LINA’s structural conflict of interest 

and to verify that the determinations are made with the correct and governing Plan 

documents. 

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168. Under ERISA, LINA had an obligation to disclose all documents 

“relevant” to Ms. Boyes’ claim for benefits. Under 29 C.F.R. § 2560(m)(8), a document 

is “relevant” to a claim if it: 1) was relied upon in making the benefit determination; 2) 

was submitted, considered, or generated in the course of making the benefit 

determination, without regard to whether such document, record, or other information 

was relied upon in making the benefit determination; 3) demonstrates compliance with 

the administrative processes and safeguards in making the benefit determination; or 4) 

constitutes a statement of policy or guidance with respect to the plan concerning the 

denied benefit for the claimant’s diagnosis, without regard to whether such advice or 

statement was relied upon in making the benefit determination. Under ERISA, this 

necessarily contemplated disclosure of the RBO Policy and other documents outlined 

above.

169. Because of LINA’s improper actions, Ms. Boyes was denied a full and fair 

review of her claim. 

170. LINA’s procedural irregularities include but are not limited to: behaving as 

an adversary bent on denying the claim; impermissibly “cherry picking” only evidence 

favorable to LINA from Ms. Boyes’ claim file; retaining biased physician reviewers, 

who either were unqualified to comment on Ms. Boyes’ conditions, or otherwise 

conducted the bare minimum for their reviews; failing to credit Ms. Boyes’ subjective 

complaints and improperly demanding objective evidence. 

171. In the event that Banner properly delegated LINA with discretionary 

authority, LINA’s numerous procedural errors rise to the level of a “wholesale and 

flagrant” violation of ERISA, entitling Ms. Boyes to de novo review with a bench trial 

on the record. 

172. If LINA is entitled to review under an abuse of discretion standard, this 

Court should review LINA’s decision with heavy skepticism, because there is ample 

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evidence of LINA’s malice, self-dealing, and biased claims handling as a result of its 

conflicted status. 

173. LINA had a significant financial conflict of interest with respect to 

handling, monitoring, and eventually denying Ms. Boyes’ LTD benefits.

174. On information and belief, LINA has not established any safeguards to 

insulate its decision-making process against its significant structural conflict of interest. 

175. Because LINA had already received the one-time fixed premium, Ms. 

Boyes is informed and believes LINA managed her claim with the intent to terminate her 

LTD benefits. 

176. LINA’s bad faith and structural conflict is also evidenced in part by its 

many procedural irregularities and failure to provide timely and adequate disclosures. 

The record supports that LINA placed its financial interest above Ms. Boyes’ best 

interests in administering her claim. 

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

1132(a)(1)(B), and to applicable federal and state common law, Ms. Boyes is entitled to 

recover all benefits due under the terms of the Plan, and to enforce her rights under the 

Plan. 

178. Ms. Boyes is entitled to seek any and all relief allowed pursuant to ERISA, 

including equitable remedies, in an effort to enforce her rights under the Plan. 

179. Ms. Boyes is entitled to reinstatement of any other employee benefits that 

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

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

benefits were wrongfully terminated. 

180. Pursuant to 29 U.S.C. § 1132(g), Ms. Boyes is entitled to recover her

attorneys’ fees and costs incurred herein from LINA.

181. Ms. Boyes is entitled to prejudgment interest on the benefits to which she

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

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COUNT II

(Statutory Penalties)

(Banner)

182. All previous paragraphs are incorporated by reference.

183. Pursuant to 29 U.S.C. § 1132(c)(1)(B), “any administrator who fails to 

comply with a request for any information which such administer is required by this 

subchapter to furnish to a participant or beneficiary... may in the court’s discretion be 

personally liable to such participant or beneficiary.”

184. Under 29 U.S.C. §1024(b)(4), “[t]he administrator shall, upon written 

request of any participant or beneficiary furnish a copy of the latest updated summary 

plan description, and the latest annual report, any terminal report, the bargaining 

agreement, trust agreement, contract, or other instruments under which the plan is 

established or operated.”

185. On July 22, 2014, Ms. Boyes made a written request exclusively to Banner 

seeking disclosure of the governing plan documents under ERISA. Among some of the 

information requested, she requested the Plan Document executed by Banner controlling 

the operation of the Plan, the RBO Policy, Banner’s 5500 Filings, and Summaries of 

Material Modifications for the Plan.

186. In the July 22, 2014 letter, Ms. Boyes’ counsel specifically requested that 

if Banner refused to disclose any of the requested information, it provide an explanation 

as to why it believed the information was exempted from its disclosure obligations under 

ERISA. 

187. In a separate letter dated July 22, 2014, which was addressed to LINA and 

Banner, Ms. Boyes enumerated her request for her Plan documents including, but not 

limited to, the RBO Policy, Certificate of Insurance, Plan Booklet, group insurance 

contract and/or service contract between LINA and Banner.

188. After LINA’s Final Denial, Ms. Boyes sent another request to LINA and 

Banner dated March 25, 2015. Ms. Boyes renewed her request for information, which 

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was previously requested and had not been disclosed. As the Plan Administrator, Banner 

was advised that it was responsible for ensuring that Ms. Boyes received all document 

relevant to her claim. This request contemplated the RBO Policy. 

189. On April 10, 2015, LINA provided a disclosure totaling 1,143 pages. In the 

cover letter enclosing Ms. Boyes’ file, LINA represented that it had provided a copy of 

the RBO Policy, but this was in fact, withheld.

190. On May 15, 2015, Ms. Boyes’ counsel received a voice message from 

Banner’s general counsel, Cyrus Martinez, advising that he was in the process of 

gathering a response with respect to Ms. Boyes’ requests. He apologized for the delay. 

191. To date, Ms. Boyes has not received her Plan documents from Banner. 

192. Banner failed or refused to comply with its disclosure obligations under 29 

U.S.C. § 1024(b). 

193. On information and belief, Banner purposely and in bad faith withheld 

information that Ms. Boyes was legally entitled to under ERISA.

194. Banner acted in bad faith and with prejudice by failing to disclose relevant 

documents under ERISA in response to Ms. Boyes’ written requests.

195. The undisclosed information was critical to Ms. Boyes’ claim and appeals

for benefits, and Ms. Boyes has been prejudiced by Banner’s failure to disclose 

information under ERISA.

196. The disclosure requirements of ERISA are not empty suggestions for 

fiduciaries such as Banner. The disclosure requirements amount to specific guidelines 

imposed for the purpose of ensuring that plan participants, such as Ms. Boyes, can 

follow and gauge the availability and character of ERISA plans, including the very 

structure of the benefit plan itself. Without adequate disclosure, Ms. Boyes cannot know 

or enforce her rights to benefits or anticipate alterations in benefits under the Plan. 

197. As the Plan Administrator, Banner is liable to Ms. Boyes for its failure to 

properly disclose documents pursuant to 29 U.S.C. § 1132, et. seq. 

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198. Under 29 U.S.C. § 1132(c)(1), the Court may impose a statutory penalty of 

up to $110 per day for each day that Banner failed to provide a complete and proper 

disclosure of Ms. Boyes’ plan documents.

199. Penalties began to accrue thirty (30) days after the date Ms. Boyes made a 

written request to Banner for her plan documents, which is August 22, 2014.

200. Boyes is entitled to penalties, as well as interest, costs, and her attorneys’ 

fees.

201. Banner continues to accrue penalties under ERISA until it properly 

discloses requested documents pursuant to ERISA.

COUNT III

(Breach of Fiduciary Duty under 29 U.S.C. § 1132(a)(2))

(LINA)

202. All previous paragraphs are incorporated by reference.

203. LINA owes fiduciary duties to the Plan.

204. Ms. Boyes has reason to believe that LINA breached its fiduciary duties to 

the Plan and that the Plan has and will continue to be injured as a result of LINA’s 

conflicted and unchecked claims handling. 

205. LINA’s breaches injured the Plan, jeopardized the Plan or put at risk Plan 

assets. The Plan as a whole incurred an injury as a result of LINA’s breaches of its 

fiduciary duties. 

206. Ms. Boyes is informed and believes that after LINA acquired the block of 

existing claims from Banner, it targeted those claims for termination. It had already 

received the $14,022,00 premium and was not expecting further premiums or payments 

from Banner. Furthermore, after assuming liability for the RBO claims, LINA knew that 

Banner’s involvement in the administration and oversight of those claims would be 

limited or non-existent. Ms. Boyes is informed and believes that LINA had no incentive 

pay valid claims insured under the RBO Policy, and LINA breached its fiduciary duties 

by acting directly against the Plan for its own gain. 

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207. The Plan was harmed because it paid a $14,022,00 premium for otherwise 

illusory coverage. In exchange for this premium, LINA agreed to accept and to insure all 

of Banner’s existing claims, including Ms. Boyes. Ms. Boyes is informed and believes 

that it was not Banner’s intention to transfer claims for termination. 

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

violations to the Plan, because it wrongfully terminated and withheld benefits for its own 

profit. 

209. Ms. Boyes has reason to believe that LINA’s claim statistics with respect 

to the RBO Policy will reveal LINA’s intent. Other cases insured under the same RBO 

Policy and presenting similar facts are currently pending in the Arizona District Court. 

210. Ms. Boyes it entitled to seek relief on behalf of the Plan under § 

1132(a)(2), because it may be the only avenue for holding LINA accountable to the Plan 

in equity.

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

Plan by LINA’s breach of fiduciary duty violations.

212. On information and belief, an injunction to LINA’s claims handling 

practices with respect to claims insured under the RBO Policy will significantly inure to 

the benefit of the Plan. 

213. When Banner entered into the RBO contract with LINA, LINA already 

had a demonstrated history of biased claims handling. At the time of the contract, LINA 

was the subject of several state insurance investigations, which finally resulted in the 

2013 RSA. 

214. Based on Cigna’s 2012 Annual Report, the profitability of LINA’s 

disability products depends on the adequacy of premiums charged and investment 

returns relative to claims and expenses. Without the promise of future premiums and 

having already secured a large premium from Banner, Ms. Boyes is informed and 

believes that LINA’s profitability goals directly influenced its handling of all claims 

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insured under the RBO Policy under the Plan. Against this backdrop, LINA was also 

faced with significant operating expenses for the administration of these claims. 

215. On information and belief, as an institution, LINA uses claim payment 

reduction goals and cost containment measures as a method of profitmaking for the 

company. In doing so, LINA unfairly and arbitrarily reduces or denies payments on 

legitimate claims in an across-the-board fashion to attain its numerical reduction goals. 

LINA’s cost containment measures are consistent with and a part of a corporate-wide plan 

and scheme.

216. On information and belief, LINA does not have proper safeguards to ensure 

that its focus on profitability does not affect how its employees handled, evaluated, and 

assessed claims. 

217. On information and belief, LINA offers incentive or bonus programs to 

award and to encourage employees to meet its savings and operational goals.

218. On information and belief, LINA instructs and/or incentivizes its employees

to terminate otherwise legitimate RBO claims.

219. On information and belief, LINA’s RBO policy designation is used as an 

internal claims guideline to manage claims based on LINA’s profit goals.

220. LINA has a demonstrated history of biased claims handling. It has a 

pattern and practice of engaging in unfair claims practices, which is evidenced by the 

2013 RSA. 

221. On May 13, 2013, LINA entered into the RSA with five state insurance 

regulators for its claims handling practices related to group LTD insurance policies. 

222. The RSA resulted from individual examinations by the insurance 

departments of California, Connecticut, Maine, Massachusetts, and Pennsylvania (the 

“Monitoring States”). 

223. Under the RSA, LINA was assessed with penalties and fees totaling 

$1,675,000 to the Monitoring States.

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224. Under the RSA, LINA was also required to establish a remediation 

program for the redetermination of certain previously denied or adversely terminated 

claims. LINA was required to set aside $77 million for projected payments to claimants 

under the remediation program. 

225. LINA was also ordered to participate in a 24-month monitoring program 

involving random sampling and ongoing consultation. Upon completion of the 

monitoring period, LINA is subject to re-examination, and upon material noncompliance, may be subject to additional fines and/or penalties. 

226. On behalf of the Plan, this Court should enjoin LINA as most 

appropriately determined upon further discovery, as well as provide other equitable relief 

this Court deems appropriate.

COUNT IV

(Breach of Fiduciary Duty under 29 U.S.C. § 1132(a)(3))

(LINA)

227. All previous paragraphs are incorporated by reference.

228. Under 29 U.S.C. § 1132(a)(3), a civil action may be brought by a 

participant to enjoin any act or practice which violates any provision of ERISA or the 

terms of the plan, or to obtain other appropriate equitable relief to redress violations of 

ERISA or the plan.

229. Under ERISA, a fiduciary owes a special duty of loyalty to the Plan and its 

Participants. Under 29 U.S.C. § 1104(a)(1)(A), a fiduciary shall discharge its duties with 

respect to a plan solely in the interest of the participants and beneficiaries and for the 

exclusive purpose of providing benefits to participants and their beneficiaries. 

230. ERISA also requires a fiduciary to discharge its duties with the care, skill, 

prudence, and diligence under the circumstances then prevailing that a prudent man 

acting in a like capacity and familiar with such matters would use in the conduct of an 

enterprise of a like character and with like aim.

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231. LINA owed fiduciary duties to Ms. Boyes, and breached those duties by 

acting directly against Ms. Boyes’ interests for its own gain. LINA failed to administer 

the Plan prudently and in Ms. Boyes’ best interests. It failed to present the medical facts 

accurately and failed to provide a fair and reasonable evaluation, which considered all 

available medical evidence, both objective and subjective, that supported impairment. 

232. On information and belief, LINA’s conduct was motivated by financial 

considerations, caused by its structural conflict of interest as both decision maker and 

payer of Ms. Boyes’ LTD benefits. LINA has failed to produce any evidence that it 

protected Ms. Boyes from its conflict and instead intentionally withheld information that 

would have otherwise revealed the depth of its self-interested conduct. 

233. ERISA does not elsewhere adequately remedy the injuries caused to Ms. 

Boyes by LINA’s breach of fiduciary duty violations.

234. For LINA’s conduct, Ms. Boyes is entitled to equitable relief, which could 

take the form of injunctive or mandamus relief. The Court could order LINA to comply 

with the enhanced claims procedures established by the RSA, which it violated 

throughout the administration of Ms. Boyes’ claim. It could also enjoin LINA from 

employing and/or relying on Peer Reviews to determine a claimant’s functionality, 

where a claimant’s functionality is in dispute, the Peer Reviewer does not afford the 

claimant’s providers sufficient time to respond or to clarify questions about the 

claimant’s functionality, and LINA has the option and authority to conduct an IME 

and/or FCE, which would provide better insight into a claimant’s true function given that 

it is based on an in-person examination.

235. Based on its prior conduct, LINA agreed to a plan of corrective action 

under the RSA, which included the adoption of enhanced claim procedures. 

236. The enhanced claim procedures are aimed at improving the claims 

handling process and ensuring full and fair evaluations of insureds’ eligibility for and 

entitlement to disability benefits.

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237. Enhanced claim procedures were established and provided in Exhibits B, 

C, and D of the RSA.

238. Exhibits C and D of the RSA outline procedures for gathering medical 

information and using external medical resources. Under these procedures, relevant 

medical documentation should be drawn from multiple sources and should be given 

proper consideration. Relevant medical documentation, includes but is not limited to, 

medical records from treating providers, medical texts, articles, and other publications, 

the claimant’s own statements, and observations of the claimant’s activities. 

239. The procedures outline that when LINA’s opinion regarding the claimant’s 

functionality differs from the claimant’s treating provider, contact with the treating 

provider should be made to clarify functional discrepancies. Contact can be made either 

by phone or by letter requesting clarification. If telephone contact cannot be arranged, a 

letter outlining the question(s) and issues should be sent to the treating provider, which 

invites a reply either by phone or by letter.

240. If these efforts do not resolve questions of functional status and level of 

impairment, the use of external resources, such as an Independent Medical Examination 

(“IME”) and/or Functional Capacity Evaluation (“FCE”), should be considered and/or 

employed to gain further understanding of the claimant’s functional capacity. IMEs and 

FCEs should be ordered when there are disputed or unclear medical conditions, 

functional status, or levels of impairment. A Peer Review may also be considered, but

should be reserved only where there is an issue of data interpretation and an in-person 

examination of a claimant would not be useful to understand the cause and nature of 

impairment. 

241. An IME or FCE of the claimant should be sought whenever there is lack of 

agreement and the opinion of the company’s internal medical resource is the primary 

basis for the denial or termination of benefits. 

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242. With respect to Ms. Boyes’ claim, LINA failed to follow the enhanced 

claims procedures outlined under the RSA. 

243. LINA ignored credible evidence, which was supplied during the 

administrative appeals process, including Ms. Boyes’ Second Appeal. During this 

process, Ms. Boyes provided updated medical records, articles and literature about her 

conditions, and sworn testimony regarding her functionality and difficulties with her 

activities of daily living. 

244. LINA did not seek proper clarification from Ms. Boyes’ treating providers. 

Where it did reach out to Ms. Boyes’ providers, it did not provide sufficient time for 

them to respond nor did it contact Ms. Boyes or her counsel to facilitate a timely 

response. Despite several reminders from counsel, LINA communicated with Ms. 

Boyes’ providers telephonically. This was outside the scope of the authorizations it had 

in file and was in disregard of Ms. Boyes’ instruction. 

245. LINA never referred Ms. Boyes’ claim for an IME or FCE. Throughout 

her claim, LINA consistently noted that Ms. Boyes’ functional loss was “unclear” and 

that there were conflicting medical opinions. Rather than getting proper clarification, 

LINA referred Ms. Boyes’ claim for a Peer Review despite noting there were conflicting 

medical opinions. Based on the RSA’s enhanced claims procedures, a Peer Review 

should only be considered where an in-person examination would not be useful. 

246. On information and belief, LINA had the authority to order an IME or 

FCE.

247. LINA owed a duty of loyalty to Ms. Boyes but instead acted with bad 

faith, which constitutes a violation of its fiduciary duty. Ms. Boyes is informed and 

believes that LINA managed her claim with the intent to deny her claim in order to avoid 

financial liability. The duty of loyalty prohibits LINA from favoring its own interests 

over Ms. Boyes.

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248. Under ERISA, a plan administrator and/or insurance company engages in a 

fiduciary act when making a determination about whether a claimant is entitled to 

benefits under the terms of the plan. 

249. LINA arbitrarily and capriciously denied Ms. Boyes benefits, which 

constitutes a breach of fiduciary duty. 

250. In addition to injunctive and/or mandamus relief, Ms. Boyes may be found 

to be entitled to surcharge as a result of the actual harm she suffered. As a result of 

LINA’s breaches, Ms. Boyes was financially devastated. Although she only received 

$577/month from LINA, that income was important. Without it, she cannot afford her 

medical copays. As a result, she has had to forego routine medical check ups, 

colonoscopies and treatments. She has had to borrow money from her family members for 

groceries and basic necessities and repairs. She has depleted all of her savings and has 

accrued significant credit card debt.

251. 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. 

252. In equity, the Court could make Ms. Boyes whole following LINA’s breach 

and mold the relief to protect the rights of the beneficiary. The Court has broad discretion 

to fashion appropriate relief.

253. On behalf of the Plan, this Court should enjoin LINA as most 

appropriately determined upon further discovery, as well as provide other equitable relief 

this Court deems appropriate.

254. On information and belief, separate equitable relief may be appropriate 

under 29 U.S.C. § 1132(a)(3), because 29 U.S.C. § 1132(a)(1)(B) is inadequate for 

recovery. 

255. ERISA does not elsewhere adequately remedy the injuries caused to Ms. 

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Boyes by LINA’s breach of fiduciary duty violations. Even if Ms. Boyes were to recover 

the benefits due to her under 29 U.S.C. § 1132(a)(1)(B), there would be nothing estopping 

LINA from engaging in the same bad faith claims practices that it has already been 

scrutinized for based on the RSA. This is especially true if Ms. Boyes’ claim is remanded 

back down to LINA for a determination regarding future benefits. 

256. Ms. Boyes is entitled to equitable relief for LINA’s breach of their fiduciary 

duties, including for the breaches of fiduciary duties committed by any agents or third 

parties for LINA. 

257. Because LINA breached its fiduciary duties, Ms. Boyes was actually 

harmed. 

258. Pursuant to 29 U.S.C. § 1132(g), Ms. Boyes is entitled to recover her 

attorneys’ fees and costs incurred herein from LINA.

259. LINA must return any benefits or profits resulting from its breach to Ms. 

Boyes.

260. Banner acted imprudently by failing to oversee LINA’s claims 

administration especially with respect to claims insured under the RBO Policy. As the 

continuing Plan Administrator, Banner knew or should have known that LINA handled 

claims against the best interests of its employees and not pursuant to the Plan.

261. On information and belief, Banner received notifications from LINA for 

each claim terminated under the RBO Policy, including Ms. Boyes. For instance, on the 

date of each adverse benefit determination, including the First, Second and Final 

Denials, LINA issued a letter to Banner advising of the termination and affirmation of its 

decisions on Ms. Boyes’ claim. Ms. Boyes is informed and believes that Banner received 

similar notices with respect to other Covered Persons insured under the RBO Policy and 

was aware of LINA’s actions. 

262. On information and belief, Banner, as the Plan Administrator, did not 

periodically review LINA’s actions as a purported delegated fiduciary under the Plan. 

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263. On information and belief, Banner’s failure to periodically review LINA’s

actions as a delegated fiduciary under the Plan was unreasonable and constituted a 

breach of fiduciary duty. 

264. On information and belief, if Banner did periodically review LINA’s 

actions as a delegated fiduciary under the Plan, then its periodic review was 

unreasonable and constituted a breach of fiduciary duty. 

265. On information and belief, Banner is liable for LINA’s actions, because 

Banner violated its fiduciary obligations by failing to protect the Plan and Plan 

Participants from LINA’s conflicted, unchecked and adversarial claims handling. 

266. On information and belief, Banner knew or should have known that LINA

improperly handles claims insured under the RBO Policy in an effort to avoid financial 

liability on LTD claims. 

267. As a direct and proximate result of LINA and Banners’ breaches of 

fiduciary duty, Ms. Boyes has suffered actual financial harm and incurred financial 

expenses.

268. Ms. Boyes is entitled to injunctive and/or mandamus relief under 29 

U.S.C. § 1132(a)(3). She is entitled to enjoin any act or practice by LINA and Banner

that violates ERISA or the Plan, and she is entitled to see other appropriate equitable 

relief that is traditionally available in equity. 

269. Because of LINA’s breach of fiduciary duties to the Plan and its 

participants, and because of Banner’s failure to appropriately monitor LINA and protect 

Plan participants and beneficiaries from LINA’s breaching conduct, Banner should be 

required to implement appropriate procedures in oversight of LINA, which will maintain 

accountability for the administrative responsibilities it delegates under the Plan.

270. Ms. Boyes is entitled to equitable relief for Defendants’ breaches of their 

fiduciary duties, including for the breaches of fiduciary duties committed by any agents or 

third parties for Defendants.

Case 2:15-cv-02502-ROS Document 1 Filed 12/08/15 Page 39 of 41
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& PEKAS, PLLC

3030 North 3rd Street, Suite1230

Phoenix, AZ 85012

(602) 277-1745

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271. Ms. Boyes relied on the Plan to her detriment, believing that she was 

entitled to LTD benefits pursuant to the provisions of the Plan.

272. LINA must return any benefits or profits resulting from its breach to Ms. 

Boyes.

273. Ms. Boyes was harmed by Defendants’ breaches of their fiduciary duties. 

274. Ms. Boyes is entitled to prejudgment interest on the benefits to which she 

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

275. Pursuant to 29 U.S.C. § 1132(g), Ms. Boyes is entitled to recover her

attorneys’ fees and costs incurred herein from LINA and Banner.

276. On information and belief, separate equitable relief may be appropriate 

under 29 U.S.C. § 1132(a)(3), because 29 U.S.C. § 1132(a)(1)(B) is inadequate for 

recovery. 

WHEREFORE, Ms. Boyes prays for entry of judgment against Defendants as 

follows:

A. For all past LTD benefits under the terms of the Plan;

B. Clarifying and determining her rights to future benefits under the terms of 

the Plan;

C. For all other equitable relief that is proper as a result of Defendants’ breach 

of fiduciary duties;

E. For an award of Ms. Boyes’ attorneys’ fees and costs incurred herein;

F. For an award of prejudgment interest on benefits and damages at the 

highest legal rate until paid in full; and

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

Case 2:15-cv-02502-ROS Document 1 Filed 12/08/15 Page 40 of 41
OBER

& PEKAS, PLLC

3030 North 3rd Street, Suite1230

Phoenix, AZ 85012

(602) 277-1745

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Dated this 8th day of December, 2015.

OBER & PEKAS, PLLC

By: s/ Kristin Cox

Kristin Cox

Erin Ronstadt

Attorneys for Plaintiff

Case 2:15-cv-02502-ROS Document 1 Filed 12/08/15 Page 41 of 41