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Fortier v. Hartford Life and Accident Insurance Co.

United States Court of Appeals, First Circuit

February 20, 2019

THERESA FORTIER, Plaintiff, Appellant,


          Jonathan M. Feigenbaum for Theresa Fortier.

          Byrne J. Decker, with whom Scott K. Pomeroy and Ogletree, Deakins, Nash, Smoak & Stewart, P.C. were on brief, for Hartford Life and Accident Insurance Company and Dartmouth Hitchcock Clinic Company Long Term Disability Plan.

          Before Lynch, Thompson, and Barron, Circuit Judges.


         A disability insurer, Hartford Life and Accident Insurance Company ("Hartford"), gave notice to Theresa Fortier that the long-term disability ("LTD") benefits it had provided her under the Dartmouth Hitchcock Clinic Company Long Term Disability Plan (the "Plan") would expire because she had not shown she was eligible for a continuation of those benefits. The notice informed her she must file any appeal within 180 days of receipt of the notice. She did not do so, filing her appeal about two months after this deadline.

         In this Employee Retirement Income Security Act of 1974 ("ERISA") suit, Fortier first argues that her appeal was timely under the Plan. She then argues that even if untimely, that untimeliness should be excused under either of two doctrines: the ERISA substantial compliance doctrine or a state law notice-prejudice rule. The district court rejected these arguments and granted a motion for judgment on the administrative record for Hartford and the Plan. Fortier v. Hartford Life & Accident Ins. Co., No. 16-CV-322-LM, 2018 WL 3542863, at *12 (D.N.H. July 23, 2018). We also reject all these arguments and affirm. In rejecting the equitable arguments, our result is similar to that reached by the Seventh Circuit in Edwards v. Briggs & Stratton Ret. Plan, 639 F.3d 355 (7th Cir. 2011).


         We describe the material undisputed facts. Because this court is not reviewing the merits of Hartford's 2013 "adverse benefit determination"[1] on Fortier's claim, facts concerning Fortier's medical condition(s) and medical treatment are described only where relevant.

         A. Illness and Initial LTD Claim

         In January 2008, Fortier was employed as a doctor by the Dartmouth-Hitchcock Clinic, and so became a beneficiary and participant in an LTD benefits plan (the Plan), offered through Hartford. The Plan provided for LTD benefits if a participant became disabled. There is no dispute that Fortier became disabled in May 2009.

         The Plan had limitations on the duration of LTD benefits, as relevant here, depending on the cause of the disability. One such duration limit was a twenty-four month limitation for disability caused by "Mental Illness and Substance Abuse Benefits" (the "Mental Illness Limitation"). The Mental Illness Limitation stated, in part:

If You are Disabled because of:
1) Mental Illness that results from any cause;
2) any condition that may result from Mental Illness . . .
[b]enefits will be payable:
1) for as long as you are confined in a hospital or other place licensed to provide medical care for the disabling condition; or
2) if not confined, or after you are discharged and still Disabled, for a total of 24 month(s) for all such disabilities during your lifetime.

         The Plan defined "Mental Illness" as "a mental disorder as listed in the current version of the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association. A Mental Illness may be caused by biological factors or result in physical symptoms or manifestations."

         Under the Plan, "Mental Illness does not include the following mental disorders outlined in the Diagnostic and Statistical Manual of Mental Disorders: . . . Delirium, Dementia, and Amnesic and Other Cognitive Disorders" (emphasis added). It has been Fortier's position that she suffers from a "Cognitive Disorder" such that the limitation period does not apply. To be clear, Fortier was eligible for and received benefits for at least twenty-four months regardless of whether the cause of her disability was a "Mental Illness" or a "Cognitive Disorder."

         In November 2009, Fortier filed a disability claim with Hartford under the Plan, stating that she could not work because of a disability as of May 6, 2009.[2] In a "Claimant Interview" with Hartford, Fortier, according to Hartford's contemporaneous notes, explained that she had "got[ten] sick with some form of infection" and subsequently had "significant problems with memory." Fortier maintained this was corroborated by "neurophysch[ological] eval[uation]."

         As part of Hartford's review of Fortier's claim, Hartford obtained medical records from several doctors who had treated Fortier. Her psychiatrist, Dr. Paul Belliveau, stated in June 2009 that Fortier's primary diagnoses were "Major Depressive Disorder" and "Cognitive Disorder NOS [(Not Otherwise Specified)]," from "resolving encephalopathy."[3] Her neurologist at the time, Dr. Evan Murray, found that the results of electroencephalogram (EEG) and brain magnetic resonance imaging (MRI) tests were normal and stated that "[i]t is probable that the majority of Dr. Fortier's current cognitive difficulties are due to a mood disorder." In Dr. Murray's view, then, "both the EEG and brain MRI did not reveal evidence to support such an etiology [of encephalopathy]."

         After reviewing medical records and having the "Claimant Interview" with Fortier, Hartford notified Fortier in a letter dated December 18, 2009, that it had approved her disability claim and would start paying the appropriate benefits effective November 2, 2009. This letter stated that "[o]n a periodic basis we will be providing you with supplemental claim forms for the purpose of furnishing us with continued proof of disability." When Fortier's claim was granted, a Manager at Hartford stated in Hartford's internal notes that "further clarification should be requested to determine whether Dr. Fortier's primary disabling diagnosis is due to a physical or [a] mental/nervous condition." Hartford had previously "coded" Fortier's disability claim as a physical diagnosis.

         B. 2011 Adverse Benefit Determination and 2012 Appeal

         In 2010 and 2011, Hartford periodically requested updated medical information from Fortier. In response, Dr. Belliveau stated in January 2011, on an "Attending Physician's Statement" form, that Fortier's "[c]ognitive dysfunction appears to be grad[ually] improving" and the "[p]rimary concern now is increasing depression." In February 2010, an Examiner at Hartford spoke with Fortier on the phone and, according to Hartford's notes, Fortier declined to undergo further testing, saying that further neuropsychological tests would not make sense. Later, Hartford requested updated medical records from Dr. Belliveau on April 8, 2011, which he provided promptly. Dr. Belliveau's notes indicated that Fortier was "reluctant to retake the neuropsychology testing" in July 2010. After further requests for information and communication with Fortier, an Examiner at Hartford referred the case for a medical review "for clarification of [Fortier's] disabling condition" in June 2011. In July 2011, a nurse employed by Hartford determined that Fortier's disabling condition was a mental illness rather than a cognitive disorder or other physical ailment. In August 2011, Hartford continued to write to Fortier's treating physicians for further information. On September 13, 2011, Hartford determined, in its view, that an "in-depth . . . review" had "found no support for a physical [disabling condition]."

         In a letter dated September 13, 2011, Hartford notified Fortier that her benefits would terminate on November 1, 2011, because the Plan's Mental Illness Limitation applied to her disability. Hartford's letter stated that "[i]f you do not agree with our denial, in whole or in part, and you wish to appeal our decision, you or your authorized representative must write to us within one hundred eighty (180) days from your receipt of this letter." About 174 days after receipt of this letter, Fortier's attorney requested a sixty-day extension to appeal the adverse benefit determination. Hartford granted this request, and the time to file an appeal was extended to May 11, 2012. Fortier, through her attorney, appealed. That appeal resulted in an extension of LTD benefits.

         In a letter to Fortier's attorney dated May 22, 2012, Hartford stated that "we have determined that Dr. Fortier is entitled to continued LTD benefits beyond November 1, 2011, subject to all policy provisions and guidelines," but did not specify the reason. This deficiency was cured within two weeks. In a June 4, 2012, follow-up letter to Fortier's attorney, Hartford provided a reason for not cutting off and for continuing her LTD benefits: "As Dr. Fortier was not notified until the letter dated 09/13/2011 of the limitation for Mental Illness Benefits she is subject to the limitation beginning 09/13/2011." That is, Hartford restarted the twenty-four month period (for benefits paid due to a disability falling under the Mental Illness Limitation) anew from September 13, 2011, because of the lack of prior notice to Fortier regarding the Mental Illness Limitation. The letter explicitly stated that "no benefits will be payable beyond 09/12/2013," except that benefits would be payable if, and for as long as, "[Fortier is] confined in a hospital or other place licensed to provided medical care for the disabling condition." This letter also sought further information from Fortier and Fortier's treating physicians.

         After the June 4, 2012, letter, Hartford repeatedly requested more information about Fortier's disabling condition from Fortier, Fortier's attorney, and Fortier's healthcare providers[4] throughout the rest of 2012 and the first seven months of 2013. A June 6, 2012, letter to Fortier's attorney requested "more information to evaluate [Fortier's] claim," including an "Attending Physician's Statement of Continued Disability" from each of Fortier's treating physicians. This letter requested this information by July 9, 2012, but the record does not show that Hartford received any such information by this date. A July 13, 2012, letter referred to the June 6 letter and made the same request for "more information to evaluate [Fortier's] claim," this time by August 5, 2012. Hartford received an updated Attending Physician's Statement from Dr. Belliveau, dated August 16, 2012, but the record does not show the receipt of an Attending Physician's Statement from any other treating physician. An August 7, 2012, letter from Hartford requested assistance from Fortier's attorney in obtaining records from two particular hospitals where Fortier had received medical care. Nothing in the record suggests that Hartford received the requested information from the two hospitals from Fortier's attorney.

         A February 15, 2013, Hartford letter to Fortier's attorney similarly requested assistance in obtaining information from a medical provider, including updated Attending Physician's Statements. Dr. Belliveau returned an Attending Physician's Statement form that stated "See attached" and was otherwise nearly blank. The attached documents were Dr. Belliveau's office notes regarding Fortier for May 2011 through November 2012. There were no records pertaining to January and February 2013. A February 18, 2013, letter to Dr. Belliveau requested a completed Attending Physician's Statement as well as "any other information you feel is pertinent to the processing of [Fortier's] claim." A March 29, 2013, letter to Fortier's attorney sought ...

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