United States District Court, D. Vermont
SUPPLEMENT THE ADMINISTRATIVE RECORD, GRANTING
PLAINTIFF'S MOTION FOR JUDGMENT ON THE ADMINISTRATIVE
RECORD, DENYING DEFENDANT'S MOTION FOR JUDGMENT ON THE
ADMINISTRATIVE RECORD, AND DEFERRING ADJUDICATION OF
DEFENDANT'S COUNTERCLAIM (Docs. 20, 22 & 24)
Christina Reiss, Chief Judge United States District Court
lawsuit, Plaintiff David Galuszka seeks an award of continued
and past due disability benefits from Defendant Reliance
Standard Life Insurance Company ("Reliance")
pursuant to the Employee Retirement Income Security Act of
1974 ("ERISA"), 29 U.S.C. §§1001-1461.
Based upon the administrative record ("AR") before
the court, Mr. Galuszka requests a determination that he is
"totally disabled" within the meaning of
Reliance's group long term disability ("LTD")
insurance policy LTD 120310 ("the Policy") issued
to his former employer Northwestern Medical Center, Inc.
("NMC"). On July 8, 2016, the parties filed cross
motions for judgment on the AR (Docs. 22 & 24).
6, 2016, Mr. Galuszka moved to supplement the AR to include
four documents (Doc. 20). Reliance agreed that the AR may be
supplemented with two of these documents: a July 21, 2014
letter from Mr. Galuszka's counsel to Reliance appealing
the denial of coverage under group term life insurance and
supplemental group term life insurance policies GL146604 and
GL146608 (the "Life Insurance Policies") (Doc.
20-1); and Reliance's August 25, 2014 letter to Mr.
Galuszka's counsel regarding its denial of coverage under
the Life Insurance Policies (Doc. 20-2).
opposes Mr. Galuszka's request to supplement the AR with
two additional documents: a January 17, 2014 letter from his
Social Security Disability Insurance ("SSDI") claim
representative, Allsup, Inc. ("Allsup"), to the
Social Security Administration ("SSA") (the
"Allsup letter") (Doc. 20-3); and the SSA's
March 17, 2014 fully favorable decision awarding Mr. Galuszka
SSDI benefits based on a finding that he is disabled within
the meaning of the Social Security Act (the "SSDI
Decision") (Doc. 20-4).
12, 2016, the court granted Mr. Galuszka's motion to
supplement the AR to the extent it was unopposed and deferred
ruling on the remainder. After oral argument on October 24,
2016, the court took the pending motions under advisement.
Galuszka is represented by Arthur P. Anderson, Esq. Reliance
is represented by Andrew S. Davis, Esq. and Byrne J. Decker,
Policy states that Reliance will pay monthly benefits under
the Policy if the insured:
(1) is Totally Disabled as the result of a Sickness or Injury
covered by this Policy;
(2) is under the regular care of a Physician;
(3) has completed the Elimination Period; and
(4) submits satisfactory proof of Total Disability to
Policy defines "Total Disability" and "Totally
Disabled" to mean that "as a result of an Injury or
(1) during the Elimination Period and for the first 24 months
for which a Monthly Benefit is payable, an Insured cannot
perform the material duties of his/her regular occupation; .
. . and
(2) after a Monthly Benefit has been paid for 24 months, an
Insured cannot perform the material duties of any occupation.
Any occupation is one that the Insured's education,
training or experience will reasonably allow. We consider the
Insured Totally Disabled if due to an Injury or Sickness he
or she is capable of only performing the material duties on a
part-time basis or part of the material duties on a
Policy provides that, at its expense, Reliance has the right
to have a claimant "interviewed and/or examined . . .
physically[, ] psychologically[, ] and/or
psychiatrically" "to determine the existence of any
Total Disability which is the basis for a claim" and
"[t]his right may be used as often as it is reasonably
required while a claim is pending[.]" (AR 14.)
Policy calculates an Insured's benefit by determining a
percentage of the Insured's monthly earnings using a
schedule of benefits and subtracting "Other Income
Benefits" "resulting from the same Total
Disability" which includes "disability or
Retirement Benefits under the United States Social Security
Act[.]" (AR 18.) The Policy states that "[i]f we
have overpaid the Monthly benefit for any reason, the
overpayment must be repaid to us." (AR 19.)
Whether to Supplement the Administrative Record.
court "may expand its review of an administrative
decision beyond the record in front of the claims
administrator upon finding 'good cause' warranting
the introduction of additional evidence." Krizek v.
Cigna Grp. Ins., 345 F.3d 91, 97 (2d Cir. 2003) (citing
Zervos v. Verizon N.Y., Inc., 277 F.3d 635, 646 (2d
Cir. 2002)); see also DeFelice v. Am. Int'l Life
Assurance Co. of N.Y., 112 F.3d 61, 66 (2d Cir. 1997)
("[T]he decision whether to admit additional evidence is
one which is discretionary with the district court, but which
discretion ought not to be exercised in the absence of good
cause."). "A demonstrated conflict of interest in
the administrative reviewing body is an example of 'good
cause' warranting the introduction of additional
evidence." Id. at 67. An administrator's
conflict of interest, however, "does not constitute jeer
se good cause" to allow additional evidence in
a de novo review. Locher v. Unum Life Ins. Co.
of Am., 389 F.3d 288, 294 (2d Cir. 2004).
Galuszka argues that "good cause" exists to
supplement the AR because Reliance's claim decision was
tainted by a conflict of interest. He contends that Reliance
arranged for Allsup to represent him in his application for
SSDI benefits. At the same time, he asserts Allsup allegedly
represented Reliance in the recovery of any overpayment of
benefits under Policy. Reliance paid Allsup for its services on
Mr. Galuszka's behalf In turn, Allsup waived any fee from
Mr. Galuszka in the event he was awarded past due benefits
pursuant to the Social Security Act.
Galuszka further notes that the Allsup letter contains
factual representations regarding the extent of his
disability and his ability to work that are inconsistent with
Reliance's determination that he is not "totally
disabled" under the Policy. Mr.Galuszka contends that
Allsup's coterminous representation of him and Reliance,
and its conflicting factual representations, create a
conflict of interest that supports a finding of "good
Galuszka argues that "good cause" exists for the
further reason that he had a reasonable, albeit mistaken,
belief that the Allsup letter and the SSDI Decision were
included in the AR. He faults Reliance for not asking Allsup
to supply it with those documents upon Reliance's receipt
of Allsup's March 25, 2014 notification that it had
obtained the fully favorable SSDI Decision on his behalf. He
claims that he was unaware that these documents were missing
from the AR until his present counsel obtained the SSA file
in preparation for this lawsuit.
counters that it was Mr. Galuszka's burden to ensure that
the AR was complete and that his neglect and delay in doing
so precludes a finding of "good cause." While not
challenging Mr. Galuszka's contention that Reliance paid
Allsup to represent him before the SSA, Reliance asserts that
Mr. Galuszka "cites no record evidence to support the
notion that Reliance somehow controls Allsup and in fact
Allsup is not related to Reliance." (Doc. 21 at 2.) With
regard to whether the Allsup letter and the SSDI Decision
should be included in the AR, Reliance contends that
"[c]ontrary to [Mr. Galuszka's] argument, Reliance
did consider the award of Social Security benefits"
(Doc. 21 at 3) in its denial of benefits under the Policy.
See Doc. 32 at 4 ("After Reliance notified
[Plaintiff of its decision to discontinue benefits], the
Social Security Administration awarded disability benefits to
Plaintiff retroactively. Reliance considered the award as
well as other evidence when it again considered Plaintiffs
eligibility for benefits on appeal."). Reliance
nonetheless asks the court to exclude the Allsup letter and
the SSDI Decision from the AR because those documents reflect
a different standard for a "disability" than the
Policy, and are based on a different administrative record.
determining "good cause, " the court considers
whether Mr. Galuszka's neglect was excusable, whether he
timely sought supplementation of the AR, whether
supplementation of the AR is unfairly prejudicial to
Reliance, and whether the documents sought to be included are
material to the court's determination or are merely
collateral to the issues before the court or cumulative of
information already in the AR. The court also considers
whether there is a conflict of interest rising to the level
of "good cause." Before filing the motion to
supplement the AR, Mr. Galuszka's counsel sought
Reliance's permission to include the additional documents
in the AR. He made this request one day prior to the filing
of the parties' cross motions, but prior to the
completion of their briefing, and several months in advance
of the court's October 24, 2016 hearing. Reliance neither
asked to amend its motion in light of Mr. Galuszka's
request to supplement the AR, nor sought a continuance on
that basis. It is thus reasonable to infer that Reliance
suffered no real prejudice because of Mr. Galuszka's
also can claim no unfair prejudice if the Allsup letter and
the SSDI Decision are included in the AR. Reliance was aware
of Mr. Galuszka's SSDI application and the fully
favorable SSDI Decision well in advance of its January 6,
2015 final claims determination. It also factored the outcome
of the SSDI Decision in its decision.
Mr. Galuszka bears the burden of proof, Reliance had an
independent duty to ensure that the record before it was
sufficient for a fair and accurate claims determination.
See Metro. Life v. Glenn, 554 U.S. 105, 116 (2008)
(noting the claim administrator's independent burden to
ensure accurate claims assessment and declining "to come
up with a one-size-fits-all procedural system that is likely
to promote fair and accurate review"); Demirovic v.
Bldg. Serv. 32 B-JPension Fund, 467 F.3d 208, 313 (2d
Cir. 2006) ("ERISA requires that benefit plans give a
full and fair review by the appropriate named fiduciary of
the decision denying the claim.") (quoting 29 U.S.C.
§ 1133(2)) (internal quotation marks omitted). Reliance
promised Mr. Galuszka that it would conduct "[a]n
investigation ... in order to gather the necessary
information to determine your continued eligibility for LTD
benefits." (AR 289.) If Allsup's letter and the SSDI
Decision provided relevant information, Reliance could and
should have ensured their inclusion in the AR. See, e.g.,
Mead v. ReliaStar Life Ins. Co., 755 F.Supp.2d 515, 526
(D. Vt. 2010) (noting that as part of its benefits
determination on remand, "ReliaStar obtained Mead's
Social Security Administration ('SSA') disability
and its accompanying regulations 'were intended to help
claimants process their claims efficiently and fairly; they
were not intended to be used ... as a smoke screen to shield
[insurers] from legitimate claims.'" Halpin v.
W. W. Grainger, Inc., 962 F.2d 685, 696 (7th Cir. 1992)
(citations omitted). For this reason, ERISA and its
implementing regulations require "a meaningful dialogue
between ERISA plan administrators and their
beneficiaries." Booton v. Lockheed Med. Benefit
Plan, 110 F.3d 1461, 1463 (9th Cir. 1997). To the extent
that there was no meaningful dialogue about the contents of
the AR before Reliance rendered its final claims
determination, the fault lies with both
further contention that the SSDI Decision is immaterial to
this court's de novo review is untenable. Courts
may consider a SSA determination in determining whether a
claimant is entitled to benefits under ERISA. See Paese
v. Hartford Life & Accident Ins. Co., 449 F.3d 435,
443 (2d Cir. 2006) ("True, the SSA's determination
did not bind either the ERISA Plan or the district court.
However, it does not follow that the district court was
obligated to ignore the SSA's determination, especially
if the district court found the determination probative, if
not necessarily dispositive, as was the case here.");
see also Hobson v. Metro. Life Ins. Co., 574 F.3d
75, 92 (2d Cir. 2009) ("We encourage plan
administrators, in denying benefits claims, to explain their
reasons for determining that claimants are not disabled where
the SSA arrived at the opposite conclusion[.]"). This is
especially true where, as here, the ERISA plan administrator
played a role in obtaining the SSDI Decision. See
Glenn, 554 U.S. at 118 (observing that the court of
appeals properly "found questionable the fact that
MetLife had encouraged [the claimant] to argue to the Social
Security Administration that she could do no work, received
the bulk of the benefits of her success in doing so . . . and
then ignored the agency's finding in concluding that [the
claimant] could in fact do sedentary work"). A court is
well-equipped to analyze whether the two decision-makers were
presented with materially different factual records and used
different standards to determine disability.
the Allsup letter and the SSDI Decision are not duplicative
or cumulative of other information in the AR. They thus
present helpful additional information to assist this
court's determination of whether Mr. Galuszka is
"totally disabled" under the Policy. Inclusion of
the Allsup letter and the SSDI Decision in the AR is also
consistent with the court's and the parties'
obligation to secure the just determination of this
proceeding. See Fed. R. Civ. P. 1. Because
"good cause" exists to supplement the AR, the court
hereby GRANTS Mr. Galuszka's motion (Doc. 20) to include
Documents 20-3 and 20-4 in the AR. The court therefore need
not decide whether Reliance's relationship with Allsup
rises to the level of a conflict of interest.
Findings of Fact.
Mr. Galuszka's Claim.
2009, Mr. Galuszka accidentally shot himself in the left foot
while black powder hunting during deer season. His injury
required an initial hospitalization followed by multiple
surgeries, and a partial transmetatarsal amputation.
time of his accident, Mr. Galuszka was employed as a
respiratory therapist at NMC in St. Albans,
Vermont. He has approximately eleven years of
experience as a respiratory therapist and has an Associate
Degree in Science from Champlain College. Although Mr.
Galuszka was initially able to return to work after his
accident, he thereafter developed pain that made it difficult
for him to walk. X-rays taken on February 8, 2012 revealed
"bony fragments and metallic appearing foreign bodies in
[his] foot." (Doc. 20-3 at 2.)
March 22, 2012, David Groening, D.P.M., performed
transmetatarsal amputation and revision surgery on Mr.
Galuszka's left foot. Mr. Galuszka stopped working at NMC
on the day prior to his revision surgery. On March 26, 2012,
he filed a claim for benefits under the Policy and for a
waiver of premium ("WOP"). He supplemented his claim
with a statement from his podiatrist, Dr. Groening, that he
had been diagnosed with "pain [secondary] to bone
fragments, exostosis & foreign bodies." (AR 673.) In
May of 2012, Dr. Groening recommended that Mr. Galuszka not
return to work for a month which was later extended to July
July 9, 2012 telephone interview, Mr. Galuszka advised
Reliance that his prognosis for returning to work was
"unknown" and that he was "still in a great
deal of pain." (AR 278.) When asked to explain his
current activities in a typical day, he indicated that he was
"[s]itting with foot elevated a lot" but he could
go to the grocery store, take short walks, and do his own
cooking, housework, and yard work. Id. He noted that
the part of his position as a respiratory therapist that he
could not perform was "[n]eeds to be on feet all
day." Id. He advised Reliance that he had not
applied for any Social Security Act benefits because he hoped
to return to work.
30, 2012, Reliance approved Mr. Galuszka's claim for
monthly benefits under the Policy after the elimination
period based on its determination that Mr. Galuszka could no
longer work as a respiratory therapist as of March 22, 2012.
Reliance informed Mr. Galuszka that, after his receipt of
twenty-four months of benefits, he would be required to
establish that he was "totally disabled" as defined
by the Policy in order to receive LTD benefits. Reliance
advised Mr. Galuszka that it would conduct an investigation
prior to its final benefits determination. Mr. Galuszka began
receiving benefits accrued as of June 20, 2012, and was
scheduled to receive benefits until June 20, 2014.
Complex Regional Pain Syndrome.
parties are in agreement that Mr. Galuszka suffers from
complex regional pain syndrome. According to a SSA
publication dated October 20, 2003, "complex regional
pain syndrome, " which is also known as reflex
sympathetic dystrophy syndrome, is:
a chronic pain syndrome most often resulting from trauma to a
single extremity. It can also result from diseases, surgery,
or injury affecting other parts of the body. . . . The most
common acute clinical manifestations include complaints of
intense pain and findings indicative of autonomic dysfunction
at the site of the precipitating trauma.
(Doc. 20-1 at 3.) "It is characteristic of this syndrome
that the degree of pain reported is out of proportion to the
severity of the injury sustained by the individual."
Id. The condition is characterized by symptoms
including: "[s]welling; [a]utonomic instability- seen as
changes in skin color or texture, changes in sweating[, ] . .
. changes in skin temperature, and abnormal pilomotor
erection[;] [a]bnormal hair or nail growth[;] [o]steoporosis;
or [i]nvoluntary movements of the affected region of the
initial injury." Id. at 6. The SSA publication
further acknowledges that:
[c]hronic pain and many of the medications to treat it may
affect an individual's ability to maintain attention and
concentration, as well as adversely affect his or her
cognition, mood, and behavior, and may even reduce motor
reaction times. These factors can interfere with an
individual's ability to sustain work activity over time,
or preclude sustained work activity altogether.
Id. at 7.
briefing, Mr. Galuszka references the National Institute of
Neurological Disorder and Stroke's (the
"NINDS") definition of complex regional pain
syndrome. The court finds the NINDS's website provides a
useful source of information regarding complex regional pain
syndrome that supplements and corroborates the information
set forth in the SSA publication. Pursuant to Fed.R.Evid. 201
and subject to the parties' right to object, the court
takes judicial notice of the NINDS's definition which
provides in relevant part:
Complex regional pain syndrome (CRPS) is a chronic pain
condition most often affecting one of the limbs (arms, legs,
hands, or feet), usually after an injury or trauma to that
limb. CRPS is believed to be caused by damage to, or
malfunction of, the peripheral and central nervous systems.
The central nervous system is composed of the brain and
spinal cord, and the peripheral nervous system involves nerve
signaling from the brain and spinal cord to the rest of the
body. CRPS is characterized by prolonged or excessive pain
and mild or dramatic changes in skin color, temperature,
and/or swelling in the affected area.
CRPS symptoms vary in severity and duration. Studies of the
incidence and prevalence of the disease show that most cases
are mild and individuals recover gradually with time. In more
severe cases, individuals may not recover and may have
The key symptom is prolonged pain that may be constant and,
in some people, extremely uncomfortable or severe. The pain
may feel like a burning or "pins and needles"
sensation, or as if someone is squeezing the affected limb.
The pain may spread to include the entire arm or leg, even
though the precipitating injury might have been only to a
finger or toe. Pain can sometimes even travel to the opposite
extremity. There is often increased sensitivity in the
affected area, such that even light touch or contact is
painful (called allodynia).
People with CRPS also experience constant or intermittent
changes in temperature, skin color, and swelling of the
affected limb. This is due to abnormal microcirculation
caused by damage to the nerves controlling blood flow and
temperature. An affected arm or leg may feel warmer or cooler
compared to the opposite limb. The skin on the affected limb
may change color, becoming blotchy, blue, purple, pale, or
Other common features of CRPS include:
• changes in skin texture on the affected area; it may
appear shiny and thin
• abnormal sweating pattern in the affected area or
• changes in nail and hair growth patterns
• stiffness in affected joints
• problems coordinating muscle movement, with decreased
ability to move the affected body part, and
• abnormal movement in the affected limb, most often
fixed abnormal posture (called dystonia) but also
tremors in or jerking of the affected limb.
www.ninds.nih.gov (last visited January 9, 2017).
Mr. Galuszka's Relevant Medical Treatment.
Mr. Galuszka's revision surgery, in March and April of
2012, Dr. Groening noted that Mr. Galuszka did not initially
have any acute pain and on April 18, 2012 recorded that Mr.
Galuszka stated he was "doing well" and "doing
better" and experiencing a "minimal amount of
edema." (AR628, 1286.) By May of 2012, however, Mr.
Galuszka reported to Dr. Groening that he was "unable to
stand/walk for more than 30 minutes without a break[, ]"
was "still having a significant amount of pain[, ]"
and was "not able to do some of the activity that he was
able to do previously . . . [because] it is so painful that
he is not able to bear all of his weight." (AR 629,
12, 2012, Mr. Galuszka advised Dr. Groening that "he
believes that he still has more pain than he did
pre-operatively." (AR 629.) On July 24, 2012, after
noting that Mr. Galuszka continued to have pain Dr. Groening
referred him to William Roberts, M.D., a pain specialist.
report, Dr. Roberts noted that he had seen Mr. Galuszka after
his accident and that he "had a significant amount of
pain." (AR 596.) He recorded that Mr.
"subsequently underwent debridements and then a complete
amputation and then a revision amputation since then."
Id. Because Reliance relies on Dr. Roberts's
treatment and opinions as evidence that Mr. Galuszka is not
"totally disabled, " the court quotes from Dr.
Roberts's report at some length:
I have not seen [Mr. Galuszka] since the February 2010
[accident] except in the hallways at work. My understanding
from him is that he is working very little as a result of
uncontrolled pain. He described allodynia at the site of the
incision on the left foot and distal and what would be
approximately the metatarsals of the 3 and 4. He also has
complained of alternating having a cold foot or warm foot.
Today, it was cold. There is no indication that he has had
any new trauma. He is not sure if something is getting
pinched between his metatarsals. I am open to the possibility
that that could be the case, but I think it is important that
we consider the mechanism of injury and most important the
interval of time between the injury and his definitive
therapy which was several weeks.
He denies any vasal motor instability as evidenced by
hyperhidrosis. He does have coloration changes.
He is a well-appearing white male with no difficulty with his
gait or station. There is a well-healed, well coapted wound
across the mid portion of the metatarsals of the left foot.
This appears to be a very nicely closed and healed
transmetatarsal amputation. There is no indication of any
dystrophic changes of the skin. There is no indication of any
peripheral vascular compromise. His capillary refill is quite
brisk. He does have true allodynia in the areas outlined
above, but overall, the foot is very cold, as compared to the
opposite side. There is no indication of any true mottling,
but he does have an overall general rosy hue to the left foot
as compared to the right.
There is no thickening of the hairs, nor any hyperhidrosis.
Somewhat difficult to determine if this is an automatically
mediated pain process without doing a diagnostic
paravertebral chemical sympathectomy. Certainly, I would not
want to miss the diagnosis without aggressively considering
that this could be an autonomically mediated pain problem.
Today we discussed the diagnostic features of a paravertebral
chemical sympathectomy and the therapeutic features of
permanent surgical sympathectomy. I have sent him home with
key words and we will review with him his questions after he
has had a chance to look into these. He was told that he
could come back even today if he had an adequate duration of
time to read through some web sites and consider the
diagnosis of complex regional pain syndrome.
on June 21, 2012, Dr. Roberts administered a paravertebral
block to Mr. Galuszka which was unsuccessful in relieving his
pain. During the procedure, Dr. Roberts was able to document
a temperature differential in Mr. Galuszka's feet.
See AR 599 ("Temperature differential was
clearly documented, left side being nearly 9 degrees cooler
than the right."). He also noted "[o]f interest is
the fact that David points out that when he was having
problems with his neck he had entirely right-sided basil
motor symptoms, sweating profusely in the right with no
sweating whatsoever noted on the left." Id. Dr.
Roberts observed that "[i]t is not clear to me if his
failure to vaso-dilate is the result of failure to obtain
access on the paravertebral sympathetic motor ganglia or if
his sympathetic nervous system simpl[y] does not have normal
motor function[.]" Id.
25, 2012, Dr. Roberts documented that Mr. Galuszka "had
no improvement in either his vasomotor symptoms or pain
following a chemical paravertebral sympathectomy last
week." (AR 600.) He noted that "there is no
improvement in his reticular pattern of discoloration in his
foot" and "[h]is foot continues to be cold as
compared to his nonoperative side." Id. After a
consultation, Mr. Galuszka agreed to undergo the procedure a
second time. This, too, proved unsuccessful as "[h]e
neither vasodilated nor had any pain relief during the
block" and "no interval improvements in his
symptoms either." (AR 602.) During the two hours
following the block, Dr. Roberts noted "differential
temperatures went from a temperature differential of 14
degrees with the right foot being warmer than the ...