attorney Michael E. Douglas Attorney at Law
  Personal Injury Attorney
  St. Paul Workers Compensation Lawyer work comp attorney
 > About Me
   :: My Commitment
   :: Our Community
 > Legal Practice Areas
  twin cities comsumer lawPersonal Injury
   :: Traffic Accidents
   :: Medical Malpractice
   :: Social Security Disability
   :: Premises Liability
   :: Wrongful Death
   :: Dog Bite
   :: Back/Spinal/Neck Injuries
   :: Whiplash
   :: Defective Medical Devices
   :: Defective Drugs
  Minnesota Personal InjuryWorkers Compensation
  St. Paul personal injuryConsumer Law
   :: Debt Collection
   :: Repossessions
   :: Foreclosures
   :: Loan, Credit, Banking
   :: Arbitration Agreements
   :: Deception and Fraud
   :: Auto Fraud / Lemon Law
   :: Warranties
   :: Predatory Lending
 > Contact Us
   :: Contact Us

Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551

 Saint Paul Lawyer


Wattenhofer v. Target Corp.: US District Court : ERISA - no full and fair review where doctor's report given only after final decision

Civil No. 07-4116(DSD/JJG)
Diane Wattenhofer,
Target Corporation and
Principal Financial Group,
Robert J. Leighton, Jr., Esq. and Nolan, MacGregor,
Thompson & Leighton, 380 St. Peter Street, Suite 710, St.
Paul, MN 55102, counsel for plaintiff.
Deborah A. Ellingboe, Esq., Megan S. Clinefelter, Esq.
and Faegre & Benson, Suite 2200, 90 South Seventh Street,
Minneapolis, MN 55402, counsel for defendants.
This matter is before the court on the parties cross-motions
for summary judgment. Based upon a review of the file, record and
proceedings herein, and for the reasons stated, the court grants
plaintiffs motion in part.
This disability benefits dispute arises under the Employee
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1001
et seq. In January 1996, plaintiff Diane Wattenhofer
(Wattenhofer) began working as a pharmacist for defendant Target
Corporation (Target). Target is the administrator of a long-term
disability plan (Plan) governed by ERISA. Principal Financial
Group (Principal) manages Targets health insurance policy and is
responsible for the initial investigation and payment of Target
employees health insurance claims, as well as the review of firstlevel
appeals from Principals decisions. Target considers secondlevel
In August 2001, Wattenhofer developed swelling in her right
arm and in October 2001, doctors discovered a clot in her right
sub-clavian vein. Wattenhofer was later diagnosed with thoracic
outlet syndrome. In November 2001, Wattenhofer also began to
experience dizziness and nausea. Due to these conditions,
Wattenhofer stopped working at Target on December 11, 2001.
Between April 2002 and December 2004, Wattenhofer underwent
three surgeries to relieve the conditions of thoracic outlet
syndrome. None of the surgeries proved successful. Wattenhofer
also sought medical attention for her continued episodes of
dizziness and was diagnosed with vestibular Menieres disease on
May 12, 2003. Target granted Wattenhofer long-term disability
(LTD) benefits on May 10, 2002. The Social Security
Administration awarded Wattenhofer Social Security Disability
Income benefits on December 27, 2005, retroactive to December 11,
Target discontinued Wattenhofers LTD benefits on February 9,
2006. On December 13, 2006, Principal affirmed Targets decision,
finding that Wattenhofer was not disabled under the Plan. On
June 8, 2007, Wattenhofer filed a second-level appeal with Target.
In response, Target hired an unidentified physician to review
Wattenhofers file and make a report. On July 25, 2007, Target
informed Wattenhofer by letter that it had denied her claim for
disability benefits. At that time, Target also provided a copy of
the physicians July 18, 2007, report.
Wattenhofer brought this ERISA action against Target and
Principal on September 26, 2007, challenging the denial of her LTD
benefits. Before the court are the parties cross-motions for
summary judgment.
I. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law. See Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). A fact is material only when its
resolution affects the outcome of the case. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the
1 The parties agree that Principal should be dismissed
because it is not an ERISA fiduciary. (Def.s Br. [Doc. No. 14] at
15-16; Pl.s Resp. [Doc. No. 26] at 2). Therefore, the court
dismisses Principal from this action.
evidence is such that it could cause a reasonable jury to return a
verdict for either party. See id. at 252.
On a motion for summary judgment, all evidence and inferences
are to be viewed in a light most favorable to the nonmoving party.
See id. at 255. The nonmoving party, however, may not rest upon
mere denials or allegations in the pleadings but must set forth
specific facts sufficient to raise a genuine issue for trial. See
Celotex, 477 U.S. at 324. Moreover, if a plaintiff cannot support
each essential element of his claim, summary judgment must be
granted because a complete failure of proof regarding an essential
element necessarily renders all other facts immaterial. Id. at
II. Full and Fair Review
Wattenhofer argues that Target1 denied her a full and fair
review because she had no opportunity to respond to Targets
reviewing physicians report before Target decided her second-level
appeal. ERISA requires that plan procedures afford a reasonable
opportunity to any participant whose claim for benefits has been
denied for a full and fair review ... of the decision denying the
claim. 29 U.S.C. 1133(2). A full and fair review requires
knowing what evidence the decision-maker relied upon, having an
2 The court in Abram relied on a pre-2000 version of 29 C.F.R.
2560.503-1(h), which provided that full and fair review includes
the right to review all documents, records, and other information
relevant to the claimants claim for benefits and the right to an
appeal that takes into account all comments, documents, records,
and other information submitted by the claimant relating to the
claim. See Abram, 395 F.3d at 886. The Department of Labor
amended this regulation in 2000, stating that a plan does not
provide a claimant a reasonable opportunity for full and fair
review unless it provide[s] ... claimant ... , upon request and
free of charge, reasonable access to, and copies of, all documents,
records and other information relevant to the claimants claim for
benefits. 29 C.F.R. 2560.503-1(h)(2)(iii)(2000). Despite this
change, the court determines that Abram remains binding Eighth
Circuit precedent. See Lammers v. Am. Express Long Term Disability
Benefit Plan, No. 06-CV-1099, 2007 WL 2247594, at *2 (D. Minn. Aug.
2, 2007); Walters v. Prudential Ins. Co. of Am., No. 06-CV-20, 2007
WL 4531311 (N.D. Iowa Dec. 18, 2007); Rouse v. UNUM Life Ins. Co.,
No. 04-1090, 2005 WL 2000181 (D. Minn. Aug. 18, 2005).
opportunity to address the accuracy and reliability of that
evidence, and having the decision-maker consider the evidence
presented by both parties prior to reaching and rendering his
decision. Abram v. Cargill, 395 F.3d 882, 886 (8th Cir. 2005)
(quoting Grossmuller v. Intl Union, UAW, 715 F.2d 853, 858 n.5 (3d
Cir. 1983)). To satisfy these requirements, a plan administrator
that solicits a medical opinion must provide the claimant an
opportunity to respond to the opinion before reaching a final
decision. Id. at 886.2
In this case, the physician Target hired to review
Wattenhofers appeal issued a report on July 18, 2007, stating that
Wattenhofer could perform the work required of a pharmacist with
some limitations. (AR at 14.) Target adopted the physicians
conclusion in the July 25, 2007, letter, noting that this decision
on review is the Plans final decision. Id. Wattenhofer,
however, was not provided an opportunity to respond to the
reviewing physicians opinions. Therefore, the court determines
that Wattenhofer was denied a full and fair review and remands the
case to Target. Upon remand, Target shall reopen the
administrative record to permit Wattenhofer to file a timely
response to the reviewing physicians July 18, 2007, report. In
her response, Wattenhofer may not submit new medical evidence. See
Lammers, 2007 WL 2247594, at *2 (A claimant cannot unduly delay
the decision-making process by continuously submitting new medical
evidence after the appeal period has closed.). Target shall
reconsider Wattenhofers eligibility for LTD benefits in light of
her response.
Accordingly, based upon the file, record and proceedings
herein, and for the reasons stated, IT IS HEREBY ORDERED that:
1. Defendant Principal is dismissed;
2. Wattenhofers motion for summary judgment [Doc. No. 19]
is granted in part, and the case is remanded to Target with
instructions to reopen the administrative record to permit
Wattenhofer to respond to the reviewing physicians July 18, 2007,
3. Wattenhofers motion for summary judgment [Doc. No. 19]
is denied without prejudice in all other respects;
4. Targets motion for summary judgment [Doc. No. 12] is
denied without prejudice; and
5. The case is stayed pending the proceedings on remand.
Dated: October 10, 2008
s/David S. Doty
David S. Doty, Judge
United States District Court


  What day were you injured?

  / /

  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall

  How have your injuries affected

  your life?


  What kinds of medical care
  professionals have you seen?


  What has your treatment cost?


  Is Insurance Involved?
My insurance may cover

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement

I accepted a settlement

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



          By visiting this page or clicking the
  "submit" button above, you agree
  that you have read and accept this   "disclaimer".
Copyright © Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights Reserved.
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.