Unpublished Disposition, 936 F.2d 578 (9th Cir. 1991)

MEMORANDUM^* 

* Sheila McDonough appeals summary judgment for Lever Brothers affirming its denial of disability benefits under an employee benefit plan. We hold the denial of benefits was arbitrary and capricious and remand for new consideration by Lever Brothers's Benefits Administration Committee ("BAC").¹ 

II

McDonough argues that Lever Brothers breached its fiduciary duty to collect all information necessary for a determination of her eligibility for disability benefits. She further argues that Lever Brothers failed to comply with ERISA and Department of Labor procedural requirements in reviewing and denying her disability claim. We agree with both assertions.

As Lever Brothers conceded during oral argument, it is a fiduciary of the employee defined benefit plan, and as such has a fiduciary duty to its employees. Lever Brothers conceded in its response to McDonough's requests for admission that it had failed to provide Dr. Wing, the medical expert who evaluated McDonough's fitness for work, with the following information prior to the BAC's final denial of McDonough's claim: (1) Dr. Joel Frank's deposition testimony stating he believed McDonough should never return to work at Lever Brothers; (2) a summary of this deposition testimony; (3) three reports by Dennis Gowans, McDonough's treating psychologist. Lever Brothers also admitted that Dr. Wing "did not conduct a thorough review of Ms. McDonough's medical history in connection with her appeal of her disability pension claim." The BAC relied entirely on Dr. Wing's determination that McDonough was not psychologically disabled in her denying her claim. We hold that Lever Brothers's failure to provide the above information to Dr. Wing, Dr. Wing's cursory review of McDonough's incomplete file, and finally, the BAC's total reliance on Dr. Wing's inadequate recommendation denying benefits, constituted arbitrary and capricious behavior. See Toland v. McCarthy, 499 F. Supp. 1183, 1194-95 (D. Mass. 1980) (reversing denial of benefits for failure to develop available evidence).

Furthermore, the BAC's letter denying McDonough benefits failed to comply with ERISA and Department of Labor requirements. The notice of denial simply states that McDonough does not have a condition that renders her unable to perform the work for which she was employed, with no expectation that she will be able to perform such work in the future. This conclusory statement does not satisfy the requirement that the BAC set forth specific reasons for the denial, as required by section 503 of ERISA, 29 U.S.C. § 1133, nor does it inform McDonough of how she can cure her claim, as required by 29 C.F.R. Sec. 2560.503-1(f). See White v. Jacobs Engineering Group, 896 F.2d 344, 347 (9th Cir. 1989) (discussing the information that must be given to a rejected claimant); cf. Blau v. Del Monte Corp., 748 F.2d 1348, 1353-54 (9th Cir. 1984) (total failure to comply with ERISA procedural requirements grounds for reversing denial of benefits).

In returning McDonough's claim to the BAC for new consideration, we must express our concern that the BAC may have some difficulty taking a fresh, unbiased look at McDonough's claim. Lever Brothers stated at oral argument that it was not inclined at that time to consider Dr. Wing's changed opinion regarding McDonough's disability, out of a need for finality in benefits determinations. Not only shall Dr. Wing's changed opinion be considered by the BAC, but all medical evidence that was before the court below shall be given a fresh evaluation by the BAC.

REVERSED and REMANDED.