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Case No. 12-cv-13330













On July 28, 2012, Plaintiff, Delores Purifoy, filed the instant action claiming Defendant,

United of Omaha Life Insurance Company, breached the terms of an employee benefit plan by

denying her claim for short-term disability (“STD”) benefits in violation of the Employee

Retirement Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. § 1001 et seq.

Presently before the Court are the following motions: (1) Plaintiff’s Motion Requesting Judgment

on the Administrative Record, filed on April 22, 2013, and (2) Defendant’s Motion to Affirm the

Administrator’s Decision, also filed on April 22, 2013. The parties’ motions are fully briefed and


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the Court concludes that oral argument will not aid in the disposition of this matter. Accordingly,

the motions will be resolved on the briefs submitted pursuant to E.D. Mich. L.R. 7.1(f)(2). For the

reasons that follow, the Court grants Plaintiff’s Motion Requesting Judgment on the Administrative

Record and denies Defendant’s Motion for Judgment Affirming the Administrator’s Decision.




Plaintiff’s STD benefits claim

Plaintiff began working for Greektown Casino-Hotel/Greektown Casino, LLC (“Greektown

Casino”) on October 12, 2001 as a Food Cart Attendant. Greektown Casino’s Job Description for

a Food Cart Attendant states in relevant part:

TYPICAL PHYSICAL/MENTAL DEMANDS: Requires mobility. Requires
prolonged standing. Requires bending and reaching from floor level to 7 ft.
Requires lifting up to 80 lbs. Requires normal sense of smell, taste, touch, and
sound. Requires normal vision range. Requires eye/hand coordination and manual
dexterity. Requires the use [of] electrical equipment. Requires regular, predictable

AR 168. Greektown Casino further listed examples of Plaintiff’s job duties as a Food Cart




Organize and prep food cart menu items as directed by Chef.
Assist with other staff in assuring “great” customer service.
Responsible for the sanitation of the general work area of their cart, as well
as surrounding areas of the casino and food courts.
Responsible for setting up, maintaining, breaking down, and cleaning a
specific food cart station.
Perform food preparation functions as necessary or assigned.
Work the casino floor.
Other job related duties as assigned.


As a benefit of her employment, Greektown Casino sponsored the Greektown Casino, LLC

Short and Long-Term Disability Plan (the “Plan”). Under the Plan, STD benefits are provided to


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eligible participants who satisfy the criteria for receipt of such benefits. Specifically, under the Plan,

disability is defined as follows:

[B]ecause of an Injury or Sickness, a significant change in Your
mental or physical functional capacity has occurred in which You



prevented from performing at least one of the Material Duties of
Your Regular Job on a part-time or full-time basis; and
unable to generate Current Earnings which exceed 80% of Your
Weekly Earnings due to that same Injury or Sickness.

Disability is determined relative to Your ability or inability to work. It is not
determined by the availability of a suitable position with Your employer.

AR 13.

On August 14, 2011, Plaintiff claims she was forced to stop working due to significant

degenerative spinal pathologies , upper extremity neuropathy and carpel tunnel syndrome that

caused chronic pain and functional impairments. On September 13, 2011, Plaintiff submitted a

claim for STD benefits. Plaintiff described the nature of her illness as “lower back pain, leg pain,

right and left hand pain, up and down arms” with an onset date of August 15, 2011. AR 162.

Plaintiff also checked “Yes” in response to the question: “Was the disability work related?” Id.

Plaintiff further indicated that she had not filed a workers’ compensation claim. Id. Greektown

Casino prepared an Employer’s Statement dated September 19, 2011 indicating that Plaintiff’s

illness was not work related. AR 165. Greektown Casino also described the strength demand

required for Plaintiff’s position as “light” with a 20 lbs. maximum lifting requirement and a frequent

lifting requirement of 10 lbs. Id. Plaintiff’s treating physician, Christina L. Clark, also prepared a

physician’s statement on September 14, 2011. AR 166-67. Dr. Clark’s statement indicates that

Plaintiff’s illness is work related. Id.

On September 29, 2011, Defendant denied Plaintiff’s claim based upon the Plan’s workers’


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compensation exclusion (“General Exclusion (f)”) that precludes the payment of short-term

disability benefits for any claim that is attributable to a workplace injury. AR 143-144. Defendant’s

September 29, 2011 letter stated in relevant part:

The provision(s) in your policy on which the denial of your claim is based on, stated
the following:

General Exclusions
We will not pay benefits for any Disability which is caused by, contributed to by, or
resulting from:


an occupational Sickness or Injury, unless You cannot be covered by
workers’ compensation law.

AR 143. On October 17, 2011, Ms. Banderas contacted Plaintiff concerning pending medical

records. AR 47. At this time, Plaintiff advised Ms. Banderas that there was no new work related

injury and that her last workers’ compensation claim was filed in 2008. Ms. Banderas informed

Plaintiff that she would review new medical records and advise Plaintiff as to her STD claim.

On November 3, 2011, Defendant referred Plaintiff’s records to a Nurse Case Manager,

April Ewing, RN CCM, for review. On November 7, 2011, following a review of Plaintiff’s medical

records from July 19, 2011 through October 18, 2011, Ms. Ewing opined that “[t]here is no clinical

or diagnostic evidence of a focal neurological deficit. Examinations do not suggest compromise in

strength, range of motion, or sensory function.” AR 174. On November 13, 2011, Defendant sent

a letter to Plaintiff informing her of its decision to deny her STD benefits claim, indicating that the

“documentation does not support disability nor an inability to perform your job duties.” AR 111.

Specifically, the letter stated in pertinent part:

There is no weakness or decrease in range of motion to the upper extremities on
examination. The MRI of the lumbar spine revealed no significant narrowing to the
spine. The cervical MRI revealed some mild flattening of the spinal cord, however,
the CSF fluid is preserved. You were referred by Dr. Clark to physical therapy and


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to a neurosurgeon, however, you have yet to be seen by either physician.

AR. 110-11.

Plaintiff retained counsel and filed an appeal of Defendant’s denial of her STD benefits claim

on June 14, 2012. Plaintiff’s counsel sent medical records and a narrative report from Dr. Clark,

dated June 10, 2012. AR 57-59. After another file review by Defendant’s nurse, Sara Schmit, RN

BSN, Defendant upheld its decision denying Plaintiff’s STD benefits claim on July 24, 2012. Ms.

Schmit opined:

The claimant is a 60-year-old female with a diagnosis of lumbar and cervical disc
disease. According to the APS the claimant has symptoms of stiffness aggravated
by standing, bending, and lifting. The claimant reports pain in upper neck with pain
radiating into bilateral shoulders. According to the past history provided by the
claimant, back pain has bene present for some years, but has recently gotten worse.
The claimant underwent lumbosacral x-rays as well as MRI of the lumbar and
cervical spine. MRI shows significant arthritis degenerative disc changes of the
cervical and lumbar spine. The claimant’s physical examination notes tenderness to
the spine, but negative leg raise. There is tenderness of the cervical spine that is
aggravated with flexion and rotation consistent with complaints of bilateral shoulder
pain with tingling radiating down arms, however, there is no objective
documentation (electromyography/EMG) to confirm muscle or nerve dysfunction.
. . . The claimant reports increased stress at work due to a recent change in work
schedule and increased demands. Despite the reported symptoms, function is
preserved with no focal neurological deficit noted. There is no validity of
restrictions based on the medical evidence.

AR 178.


Medical Evidence

Plaintiff was a regular patient of Dr. Clark, who had treated Plaintiff for the past twenty

years for chronic hypothyroidism and anemia. On August 15, 2011, Plaintiff was seen by Dr. Clark

for complaints of worsening back and radicular pain, numbness and tingling in both her wrists. AR

67. Dr. Clark diagnosed Plaintiff as suffering from lumbar disc syndrome and ordered a follow up


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appointment in a week. Id. On August 24, 2011, Plaintiff continued to complain of worsening back

pain, and Dr. Clark noted:

Pt with h/o carpel [sic] tunnel syndrome and complaints of low back strain. Pt.
states having stress at work. Notes crying in office. Pt. states recently . . . at work
to evenings & increased demands. Pt. states having to stand from 6:00 p.m. to 2:00
a.m. noted unable to sit during the day. Pt currently taking Naprosyn w/out relief .
. . back and tenderness L3-5 spinal and paraspinal tenderness . . . neg straight leg test.

AR 66. September 1, 2011, X-rays reveal degenerative spinal changes, notably at L3-L4. AR 121.

On September 7, 2011, Plaintiff was seen by Dr. Clark, who noted:

Pt has X-ray done significant L4-L5 deg disc. Pt notes pain with prolonged standing
or sitting. Pt notes stiffness in the arm. Pt states also experiencing pain radiating
from neck down both arms.

AR 65-66. Additionally, a September 30, 2011 cervical MRI showed:




C5-6 central disc protrusion mildly flattens thecal sac and spinal cord though
GCF is preserved along the dorsal aspect of the cord.
Mild spondylotic foraminal narrowing is appreciated at C5-6 bilaterally and
C6-7 on the left.
Minimal retrolisthesis is appreciated of the C5 on C6 and grade 1
anterolisthesis of C4 on C5.

AR 124, 128. A September 30, 2011 lumbar MRI indicated:


Multilevel disc bulges without significant spinal canal narrowing.
Multilevel facet joint arthropathy.
Mild spondylotic foraminal narrowing is appreciated at L3-4 on the right.
L3-4 and L4-5 disc degeneration, intervertebral disc space narrowing, and
endplate changes.

AR 122-23. On October 3, 2011, Dr. Clark noted that Plaintiff’s MRIs showed significant arthritis

and referred her to Dr. Diaz for a neurological consult. AR 65. On October 4, 2011, Plaintiff

followed up with Dr. Clark to learn the MRI results. She continued to report significant back and

neck pain and significant tingling into her hands. She also stated that it would be difficult to lift


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heavy pans, which was an integral part of her job duties. Id. On exam, Dr. Clark found back and

spinal tenderness, L3-L5 paraspinal muscle hypertrophy, decreased range of motion, and pain with

flexion. Id. She referred Plaintiff to Dr. Claybrooks for physical therapy and continued Plaintiff’s

pain medications.

On December 19, 2011, Plaintiff treated with Dr. Clark for ongoing back, neck and shoulder

pain that radiated into both hands. Plaintiff informed Dr. Clark that her insurance had been

cancelled and she could not afford to treat with either Dr. Diaz or Dr. Claybrooks. On June 10,

2012, Dr. Clark prepared a narrative report summarizing Plaintiff’s medical history, diagnoses and

prognosis. AR 58-59. Specifically, Dr. Clark indicated the following:

Ms. Purifoy’s MRI showed significant findings in both the cervical and lumbar
spine. She had central disc protrusion of C5-6 with retrolisthesis and grade 1
anterolisthesis in the same region. She had mild spondylotic foraminal narrowing
at C5-6 and C6-7. The results also showed multilevel disc bulges at L3-4, L4-5 and
L5-6. She also had multiple areas of degenerative changes most significant at L3-4
and L4-5.




Ms. Purifoy was never able to meet with the neurosurgeon or complete her course
of physical therapy due to the cancellation of her insurance. This was detrimental
to her treatment course. I believe the neurosurgeon may have order[sic] additional
studies to determine the extent of her neuropathy in her upper extremities. Ms.
Purifoy would likely have benefitted greatly from physical therapy by improving her
range of motion and decreasing her pain. I do not think surgery would have been the
initial course of action. However, without the expert analysis by the neurosurgeon,
I cannot be sure.

Ms. Purifoy’s injuries would have certainly made it impossible for her to stand 8
hours a day while carrying heavy trays that weigh 5-10 pounds. The peripheral
neuropathy in both her wrist would limit her ability to lift heavy objects without the
risk of dropping them. She certainly would not be able to lift anywhere close to 80
lbs at any time. Ms. Purifoy would require several unscheduled breaks throughout
the day to take the pressure off her back.

Her injuries render her medically disabled for her specified duties as of August 15,


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Standard of Review

A denial of benefits under an ERISA plan “is to be reviewed under a de novo standard unless

the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility

for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 103, 115 (1989). The Sixth Circuit requires “a clear grant of discretion” to the administrator

or fiduciary before replacing the de novo standard of review. Wulf v. Quantum Chem. Corp., 26

F.3d 1368, 1373 (6th Cir. 1994). “When conducting a de novo review, the district court must take

a ‘fresh look’ at the administrative record but may not consider new evidence or look beyond the

record that was before the plan administrator.” Wilkins v. Baptist Healthcare Sys., 150 F.3d 609,

616 (6th Cir. 1998). “When a court reviews a decision de novo, it simply decides whether or not it

agrees with the decision under review.” Perry v. Simplicity Eng’g, 900 F.2d 963, 966 (6th Cir.

1990). Under the de novo standard, the court does not presume the correctness of the administrator’s

benefits determination nor does it provide deference to its decision. Id. at 966. If a plan gives the

administrator discretion, the administrator’s decision is reviewed under the “highly deferential

arbitrary and capricious standard.” Miller v. Metro. Life Ins. Co., 925 F.2d 979, 983 (6th Cir. 1991).

Such decisions are not arbitrary and capricious if the decision to terminate benefits was the product

of deliberate principled decision-making and based on substantial evidence. Killian v. Healthsource

Provident Administrators, Inc., 152 F.3d 514, 520 (6th Cir. 2005).

Plaintiff argues, and Defendant concedes, that the de novo standard of review applies to the


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instant matter. See Am. Council of Life Insurers v. Ross, 558 F.3d 600 (6th Cir. 2009). Here, the

Plan was amended on June 1, 2011, thus, even if the Plan contains a discretionary clause, Michigan

statutory law prohibits its application to this action and the Court must review Plaintiff’s claim using

a de novo standard of review. On March 1, 2007, Michigan banned the use of discretionary clauses

in insurance policies, and the United States Court of Appeals for the Sixth Circuit has determined

that this law is not preempted by ERISA. Id.; see also Gray v. Mutual of Omaha Life Insurance

Co., No. 11-15016, 2012 U.S. Dist. LEXIS 101682 (E.D. Mich. July 23, 2012); Pierzynksi v.

Liberty Life Assurance Co., No. 10-14369, 2012 U.S. Dist. LEXIS 111216 (E.D. Mich. Aug. 8,

2012) (finding that the policy was revised after July 1, 2007 and applying a de novo standard of

review to reverse the defendant’s benefits decision). Thus, this Court “must determine whether the

administrator properly interpreted the plan and whether the insured was entitled to benefits under

the plan.” Wilkins, 150 F.3d at 619.


Defendant’s Denial of Plaintiff’s STD Benefits Claim

Plaintiff maintains that Defendant ignored critical medical evidence, failed to analyze the

medical evidence in conjunction with Plaintiff’s job description as well as the Plan’s definition of

disability, and erroneously denied her claim for short-term, and presumed long-term disability

benefits. Conversely, Defendant argues that Plaintiff’s conditions do not amount to a functional

impairment that prevents her from performing the material duties of her position

Here, the Court concludes that Defendant improperly interpreted the Plan in light of

Plaintiff’s medical evidence and she is entitled to benefits pursuant to the Plan language. Defendant

acknowledges Plaintiff “feels aches and pain and has a history of carpel tunnel syndrome and neck

and back pain problems of a degenerative nature consistent with age, [however, Defendant] does not


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agree that these conditions amount to functional impairment that prevents plaintiff from performing

the material duties of her regular job.” See Def.’s Mot. at 11.

The Plan’s definition for disability states:

Disability and Disabled means that because of an Injury or Sickness, a significant
change in Your mental or physical functional capacity has occurred in which You

(a) prevented from performing at least one of the Material Duties of Your

Regular Job on a part-time or full-time basis; and

(b) unable to generate Current Earnings which exceed 80% of Your Weekly

Earnings due to that same Injury or Sickness.

AR 39. Additionally, material duties include “the essential tasks, functions, and operations relating

to Your Regular Job that cannot be reasonably omitted or modified.” AR 40. Plaintiff’s job duties

require her to organize and prepare the food cart, including set up, maintenance, and cleaning, in

addition to her food preparation duties, requiring an ability to lift heavy pots and pans. The physical

demands of Plaintiff’s position require mobility, prolonged standing, bending and reaching, the

ability to lift up to 80 pounds, with frequent lifting of up to 10 pounds.

Contrary to the nurse reviewers’ conclusions, there was ample evidence to demonstrate

Plaintiff’s spinal pathologies and carpal tunnel syndrome prevent her from performing at least one

of the material duties of her regular job. Cervical and lumbar MRIs show degenerative disc disease,

with significant degenerative changes at L3-4, L4-5, and L5-6, multilevel disc bulges, and

spondylotic foraminal narrowing. Dr. Clark’s examinations further reveal decreased strength and

range of motion abilities due to Plaintiff’s carpel tunnel syndrome and neuropathy in her upper

extremities, with radicular pain from the neck downward.

The nurse file reviewers either completely ignored, or outright rejected without explanation,


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Plaintiff’s treating physician’s conclusions concerning her medical condition and its resulting impact

on her ability to perform the material duties of her position. Specifically, Dr. Clark opined that

Plaintiff’s spinal pathologies and carpel tunnel syndrome prevented her from standing for an eight

hour day and carrying heavy trays without risking dropping them. While a plan administrator is not

obligated to blindly accept the opinions of treating physicians, it may not solely rely on its

employees’ opinions, while automatically discarding a credible treating physician’s opinion:

Generally speaking, a plan may not reject summarily the opinions of a treating
physician, but must instead give reasons for adopting an alternative opinion. Evans
v. Unumprovident Corp., 434 F.3d 866, 877 (6th Cir. 2006) (“[A] plan
administrator may not arbitrarily disregard reliable medical evidence proffered by
a claimant, including the opinions of a treating physician.”)



Of course, MetLife need not defer automatically to the treating physician’s opinion.
However, that MetLife gave “greater weight” to a non-treating physician’s opinion
for no apparent reason lends force to the conclusion that MetLife acted arbitrarily
and capriciously.


Elliott v. Metro Life Ins. Co., 473 F.3d 613, 620 (6th Cir. 2006); see also Pierzynski, 2012 U.S.

Dist. LEXIS 111216, *at 9.

In addition to ignoring or selectively considering the evidence, Defendant improperly

discredited Plaintiff’s credibility concerning the description of her symptoms and pain, finding

Plaintiff’s complaints of disabling pain incredible because she failed to be seen by a neurosurgeon

or obtain physical therapy treatment recommended by Dr. Clark. The record demonstrates Plaintiff

could not afford to treat with these medical providers because she had no health insurance. The

record further shows that conservative treatment was unsuccessful in remedying Plaintiff’s


Defendant’s misplaced reliance on Plaintiff’s failure to treat with a neurosurgeon and


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apparent outright rejection of Plaintiff’s treating physician’s conclusions evidences the disingenuous

and erroneous denial of Plaintiff’s STD benefits claim. “[W]here an administrator exercises its

discretion to conduct a file review, credibility determinations without the benefit of a physical

examination support a conclusion that the decision was arbitrary.” Helfman v. GE Grp. Life Assur.

Co., 573 F.3d 383, 395-96 (6th Cir. 2009); see also Evans v. UNUMProvident Corp., 434 F.3d 866,

877 (6th Cir. 2006) (“[T]he failure to conduct a physical examination–especially where the right

to do so is specifically reserved in the plant –may, in some cases, raise questions about the

thoroughness and accuracy of the benefits determination.”); Gray, 2012 U.S. Dist. LEXIS 101682,

at *18-19. Defendant’s decision to ignore Plaintiff’s treating physician’s diagnosis and conclusions

without ordering an independent physical examination is additional evidence that Defendant acted

improperly in denying Plaintiff’s STD benefits claim.

Defendant argues there is no explanation in the record as to why Plaintiff’s back and wrist

pain suddenly became acute in August of 2011 in an attempt to support its rejection of Plaintiff’s

credibility. Defendant’s argument misconstrues the relevant inquiry, which is not why Plaintiff’s

medical condition suddenly worsened. Rather, the pertinent question is whether Plaintiff’s condition

prevented her from performing at least one of the material duties of her occupation, which include

frequent lifting of pans and trays weighing up to ten pounds and occasional lifting of trays weighing

up to twenty to eighty pounds, as well as physical demands of mobility and the ability to stand for

prolonged periods of time.

To the extent Defendant suggests the Plan requires Plaintiff to have a sudden, disabling event

before August 14, 2011, such an interpretation is beyond the scope of the Plan’s definition of

disability. The relevant language states: “Disability and Disabled means that because of an Injury


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or Sickness, a significant change in Your . . . physical functional capacity has occurred . . . .” AR

39. Further, the United States Court of Appeals for the Sixth Circuit has held that “there is no

‘logical incompatibility between working full time and being disabled from working full time.’”

Delisle v. Sun Life Assur. Co., 558 F.3d 440, 448 (6th Cir. 2009) (citing Rochow v. Life Ins. Co.

of N. Am., 482 F.3d 860 (6th Cir. 2007)). Thus, it is entirely credible that Plaintiff was disabled

while she was working, a fact not just ignored by Defendant, but apparently construed against


Based on a de novo review of the administrative record, the Court concludes that the lumbar

and cervical MRI studies showing spinal pathologies, along with Dr. Clark’s examinations of

Plaintiff evidencing carpel tunnel syndrome and upper extremity neuropathy and her conclusions

concerning Plaintiff’s ability to perform her material job duties, including, but not limited to, lifting

heavy pans and trays during food preparation and food cart set up, demonstrates Plaintiff is disabled

within the meaning of the Plan.

The Court further rejects Defendant’s alternative argument that it properly rejected Plaintiff’s

STD benefits claim based on General Exclusion (f) in the Plan. This provision states:

We will not pay benefits for any Disability which is caused by, contributed by, or
resulting from:

(f) an occupational Sickness or Injury, unless You cannot be covered by workers’
compensation law.

AR 26. It is simply inaccurate for Defendant to argue that it denied Plaintiff’s STD benefits claim

because Plaintiff’s disability is caused by an occupational sickness. First, Greektown Casino

submitted a statement to Defendant denying that Plaintiff’s claim for STD benefits was based on an

occupational injury. Additionally, the evidence of record shows that Plaintiff suffers from


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significant spinal pathologies which were not the result of a workplace accident or acute injury.

Thus, Plaintiff did not file a workers’ compensation claim because she is ineligible for such


Defendant’s original denial of Plaintiff’s claim was based on the improper conclusion that

her illness was compensable under workers’ compensation law. In October of 2007, Plaintiff

informed Defendant that she had not filed a workers’ compensation claim for the instant injury. On

November 13, 2011, Defendant received a denial letter from the Worker’s Compensation Agency1

and proceeded with its merits review of Plaintiff’s claim presumably because it determined that

Plaintiff was not in fact eligible for workers’ compensation benefits. Defendant’s merits review of

Plaintiff’s STD benefits claim effectively abandons its denial based on General Exclusion (f).

Neither the November 13, 2011, nor the July 24, 2012 denial letters reference this exclusion as a

basis for denying Plaintiff’s STD benefits claim. Thus, it strains credulity for Defendant to maintain

that Plaintiff was not entitled to STD benefits because she was eligible for workers’ compensation

benefits. If this were true, Defendant would not have conducted a merits review in November of

2011 or July of 2012, it would have simply upheld its original denial based on General Exclusion




Accordingly, for the reasons stated above, Plaintiff’s Motion Requesting Judgment on the

Administrative Record [#11] is GRANTED with respect to Plaintiff’s request for payment of short-

term disability benefits. Plaintiff’s request for payment of long-term disability benefits is denied

1 It is unclear why Defendant failed to include this letter as part of the administrative
record since it was a document that Defendant reviewed during its administrative review of
Plaintiff’s STD benefits claim.


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without prejudice. Defendant has not had an opportunity to evaluate Plaintiff’s entitlement to these

benefits, therefore her request is premature and unexhausted. Defendant’s Motion for Judgment

Affirming the Administrator’s Decision [#12] is DENIED. This matter is remanded to the Plan

Administrator for a determination of Plaintiff’s eligibility for long-term disability benefits. This

matter may be reopened by either party, without costs, after Defendant issues its final decision on

Plaintiff’s claim for long-term disability benefits.


Dated: July 30, 2013

s/Gershwin A. Drain