WILCZYNSKI v. KEMPER NATIONAL INSURANCE COMPANIES, 1999 U.S. App. LEXIS 10796 (7th Cir. May 26, 1999)-Before POSNER, Chief Judge, CUDAHY and RIPPLE, Circuit Judges.
Court affirmed denial of long-term disability claim and claim for COBRA benefits. District Court applied the arbitrary and capricious standard of review based on language in the summary plan description. This language read as follows:" A claim form provided by the Company must be completed and returned to the employee group claim department prior to receiving any benefit payment under the Plan" and "the Company may require confirmation of a continuing disability at reasonable intervals through submission of a new form."
Seventh Circuit stated that it did not believe that this language conferred discretion. In addition the Seventh Circuit noted that the plan document did not contain the language the district court relied upon. Thus, not having the discretionary language in the plan document may mean the administrator may not have discretion. Meaning no arbitrary and capricious standard of review.
In this case, Court applied the de novo standard of review. In March 1987, Wilczynski had been diagnosed with multiple sclerosis. (MS). Plaintiff started working with Kemper insurance as a supervisor. Plaintiff became disabled due to the MS and received less that 24 months of disability benefits. (Plan's definition of disability for first 24 months was inability to perform own occupation. After that, it was inability to perform all occupations.) Before plaintiff received 24 months of benefits, plan denied future benefits claiming plaintiff could perform her old job. The administrative record contained conflicting evidence as to plaintiff's disability and whether she even had MS. All independent physicians who examined plaintiff determined she was not totally disabled. Plaintiff's treating physicians disagreed amongst themselves whether Plaintiff was totally disabled. At trial Plaintiff testified that her employer allowed her to leave when she was fatigued-which occurred approximately 5-6 times a month. Seventh circuit held "there is ample evidence to support Kemper's contention that Wilczynski could have performed her previous position on a flex-time schedule--the benchmark for determining her eligibility for benefits--notwithstanding the vagaries of her condition.
As to the COBRA claim, Plaintiff had to send in the election form by May 20, 1994. Plaintiff's husband testified he mailed it, via regular mail, sometime between May 2, 1994 and May 10, 1994. District Court struck this testimony since it had not been provided to Defendant. Seventh Circuit held it irrelevant. On or about May 20, 1994, Plaintiff called CobraServ, the Cobra administrator, and CobraServ told her that it had not received her election form but still had more to process. In June 1994 Plaintiff called CobraServ to check on her coverage. CobraServ told her she had no coverage since she did not make a timely election.
In denying Plaintiff's claim, district court thought it was significant that Plaintiff, after learning on or about May 20, 1994 that CobraServ had not received her form, made no effort to send it via fax. Seventh Circuit deferred to district court's finding that Plaintiff's evidence was not credible.
Practice not: Plaintiff should have faxed the election form and sent it via certified mail.
