Walsvick, Ronald v. Cuna Mutual Ins (7th Cir. 2005)

Federal Circuits, 7th Cir. (October 25, 2005)

Docket number: 04-2821


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Citations:

U.S. Court of Appeals for the 7th Cir. - Hugo Diaz, Plaintiff-Appellant, v. Prudential Insurance Company of America, Defendant-Appellee., 424 F.3d 635 (7th Cir. 2005)

U.S. Court of Appeals for the 7th Cir. - Latosha Armstead, Petitioner-Appellant, v. Matthew J. Frank, Secretary, Respondent-Appellee., 383 F.3d 630 (7th Cir. 2004)

U.S. Court of Appeals for the 7th Cir. - Patrick J. O'Reilly, Plaintiff-Appellant, v. Hartford Life & Accident Insurance Company, Defendant-Appellee., 272 F.3d 955 (7th Cir. 2001)

U.S. Court of Appeals for the 8th Cir. - No. 98-3350., 179 F.3d 583 (8th Cir. 1999)

U.S. Supreme Court - Black & Decker Disability Plan v. Nord, 538 U.S. 822 (2003)


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Text:

UNPUBLISHED ORDER Not to be cited per Circuit Rule 53United States Court of AppealsFor the Seventh Circuit Chicago, Illinois 60604Argued September 13, 2005 Decided October 25, 2005BeforeHon. William J. Bauer, Circuit JudgeHon. Daniel A. Manion, Circuit JudgeHon. Ann Claire Williams, Circuit JudgeNo. 04-2821Ronald Walsvick, Plaintiff-Appellant, Appeal from the United States District Court for the Western Districtof Wisconsinv. No. 03 C 0637CUNA Mutual Insurance Society,Defendant-Appellee. Barbara B. Crabb, Chief Judge.O R D E RThe CUNA Mutual Insurance Society employed Ronald Walsvick as a senior underwriter. While working at CUNA, Walsvick participated in CUNA§ 1132(a)(1)(B). When, as here, the terms of an employee benefit plan clearly give the plan administrator broad discretion to deny claims, our review of the denial is limited to the arbitrary-and-capricious standard. See Diaz v. Prudential Ins. Co. of Am., 424 F.3d 635, 637 (7th Cir. 2005); Tegtmeier, 390 F.3d at 1045. Walsvick concedes that this highly deferential standard applies. We will uphold a denial of benefits under this standard so long as the denial has § 1105(c)(1). Through this delegation of authority, CUNAÂ’s ERISA Committee reviewed WalsvickÂ’s claim on multiple occasions, and CUNAÂ’s ERISA Appeals Review Committee conducted the final review of his claim. Therefore, the Benefit Committee, through its agents, did review his claim (and did so thoroughly). Next, Walsvick contends that CUNA used an expert with a conflict of interest.Before consulting with Drs. Minton and Goldenberg, the ERISA Committee had the aforementioned medical consultant, Hewitt, review WalsvickÂ’s claim. Hewitt also happened to be the underwriting manager for CUNAÂ’s reinsurer. Without further discussion, Walsvick labels this a conflict of interest and suggests that it tainted the denial of his claim. However, the ERISA Committee and the ERISA Appeals Review Committee made the decisions in this process, and the final decision was supported with evidence beyond HewittÂ’s analysis. Thus, any bias on the part of Hewitt was indirect and diluted. The three cases cited by Walsvick to support this argument all dealt with the alleged bias of the actual decisionmaker, not a mere consultant. See Perlman v. Swiss Bank Corp. Comprehensive Disability Protection Plan, 195 F.3d 975, 980-81 (7th Cir. 1999); Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1343-44 (7th Cir. 1995); Darland v. Fortis Benefits Ins. Co., 317 F.3d 516, 527 (6th Cir. 2003). What is more, Walsvick has provided no evidence that Hewitt had a specific stake in the outcome of his claim or was otherwise “any more ‘partialÂ’ against applicants than are federal judges when deciding income-tax cases.” Perlman, 195 F.3d at 981. “In the absence of specific evidence of bias, we shall not presume that there is a significant bias.” OÂ’Reilly v. Hartford Life & Accident Ins. Co., 272 F.3d 955, 960 (7th Cir. 2001). WalsvickÂ’s allegation of bias, therefore, does not undermine the denial of his claim.Walsvick further asserts that CUNA impermissibly “doctor shopped.” Not so. CUNA did nothing wrong in seeking the opinions of Drs. Minton and Goldenberg. It was a routine matter of verification. Getting second opinions, as CUNA did here, is entirely appropriate. As we have observed: “Most of the time, physicians accept at face value what patients tell them about their symptoms; but insurers . . . must consider the possibility that applicants are exaggerating in an effort to win benefits (or are sincere hypochondriacs not at serious medical risk).” Leipzig, 362 F.3d at 409. CUNA had a duty, moreover, to all participants in its plan to investigate claims such as WalsvickÂ’s, making sure to avoid paying benefits to claimants who are not entitled to receive them. See Barnhart v. UNUM Life Ins. Co. of Am., 179 F.3d 583, 589 (8th Cir. 1999) (“A company failing to conduct proper inquiries into claims for benefits breaches its duty to all claimants as a fiduciary of the benefit funds when it grants claims to unqualified claimants.”).Finally, Walsvick claims that CUNA exhibited bad faith by manipulating Dr. MintonÂ’s analysis. According to Dr. MintonÂ’s initial report, one indication that stress has a role in a particular illness is when the individual in question loses work time due to stress. Attempting to make such a showing, Walsvick responded with an unsworn statement from his former supervisor, Jim Rosenberger, which said that, during 2000 and 2001, Rosenberger allowed Walsvick to leave work early approximately two days per month. In his second report, Dr. Minton assumed that this early leave was a result of work-related stress. The ERISA Committee disagreed with that assumption and asked Dr. Minton to reevaluate, pointing out that Rosenberger, who no longer worked at CUNA, did not explicitly give a reason—stress or otherwise—for why Walsvick requested and Rosenberger granted the early leave. Also, while records for such early leave were not kept, records were kept for full-day and half-day sick leave, and CUNA informed Dr. Minton that, even though Walsvick occasionally left work early, his employment records did not reveal any regular or large amounts of sick leave (i.e., full- day or half-day sick leave) prior to his 2001 heart attack. Highlighting such details for Dr. Minton on the important issue of whether stress caused Walsvick to miss work is not the type of nefarious behavior that would constitute bad faith, especially given CUNAÂ’s aforementioned investigatory duty to avoid paying benefits to unqualified claimants. See Barnhart, 179 F.3d at 589. Furthermore, absent Dr. MintonÂ’s analysis, CUNAÂ’s ultimate decision can be supported independently by Dr. GoldenbergÂ’s opinion. At bottom, Walsvick has not presented a reason that would warrant disturbing CUNAÂ’s denial under the arbitrary-and-capricious standard.B. Separately, Walsvick claims that ERISA should not preempt his state law claims. Our precedent is against him on this point, and Walsvick readily concedes that it is. See, e.g., Smith v. Blue Cross & Blue Shield United of Wis., 959 F.2d 655, 657-58 (7th Cir. 1992). He nevertheless asserts that this precedent is “wrong.” However, Walsvick does not say why he thinks it is wrong. His appellate brief only states that he “preserves this issue for appeal.” Such a conclusory and underdeveloped argument is insufficient to obtain appellate review. See Gen. Motors Acceptance Corp. v. Cent. NatÂ’l Bank of Mattoon, 773 F.2d 771, 778 n.5 (7th Cir. 1985) (“[The appellant] must make an argument to obtain review, it cannot simply ‘reserveÂ’ our consideration of these issues.”); see also Armstead v. Frank, 383 F.3d 630, 633 (7th Cir. 2004); Fed. R. App. P. 28(a)(9)(A). Accordingly, Walsvick has waived the preemption issue. The matter merits no further discussion.III. CUNAÂ’s denial of WalsvickÂ’s claim for LTD benefits has rational support in the record. Moreover, there was no bad faith or other wrongdoing by CUNA that would justify overriding its decision. Accordingly, under the arbitrary-and-capricious standard, we will not disturb the denial. The judgment of the district court is AFFIRMED.

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