Filed: Patrick Fisher

F I L E D
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
NOV 15 1999
PATRICK FISHER
Clerk
JOSEPH P. ROCK, JR.,

Plaintiff-Appellant,
v.
UNUM LIFE INSURANCE
COMPANY OF AMERICA,
No. 98-1387
(D.C. No. 94-WY-2939-AJ)
(D. Colo.)
Defendant-Appellee.
ORDER AND JUDGMENT
Before EBEL , LUCERO , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Joseph P. Rock, Jr. appeals the district courts judgment in favor
of defendant UNUM Life Insurance Company of America (UNUM) on his claims
for insurance payments based on his permanent disability. The insurance policy
at issue was governed by the Employees Retirement Income Security Act,
29 U.S.C. 1001-1461 (ERISA). We exercise jurisdiction under 28 U.S.C.
1291 and affirm.
Plaintiff was employed by Boettcher & Co. from 1981 to 1988, and again
from February through June of 1989. Defendant issued a group long-term
disability policy to Boettcher & Co., effective March 1, 1982, to cover Boettcher
& Co.s employees. Plaintiff was covered by the UNUM policy for permanent
disability. On July 1, 1989, plaintiff filed for temporary, and then permanent,
disability benefits based on evidence that he suffered from a mental illness. The
UNUM policy limited benefits for total disability for mental illness to twenty-four
months. UNUM paid benefits to plaintiff for twenty-four months, through
December 1991.
In April 1994, plaintiff requested that UNUM reopen his claim to consider
evidence that his disability was not, and had never been, caused by a mental
condition, but, instead, was due to physical causes. Plaintiff sought
a determination that his disability was caused by physical conditions.
Consequently, he claimed he was entitled to reinstatement of his disability
-2-
payments to continue until he attained the age of sixty-five, as provided by the

UNUM policy for a physically caused disability. UNUM declined to reclassify
plaintiffs condition and denied additional disability payments. Plaintiff then
filed suit, pursuant to 29 U.S.C. 1132(a)(1)(B), to challenge the denial of
benefits. He claimed that UNUM failed to consider his medical evidence of
a physically disabling condition and that UNUM based the amount of disability
payments only on his income during the few months plaintiff worked for
Boettcher & Co. in early 1989, and not on his previous employment with
Boettcher & Co.
Following a trial to the court, submission of deposition testimony and
closing arguments, the district court issued its findings of fact and conclusions of
law. It concluded that UNUM had properly denied reconsideration of plaintiffs
disability claim and determined that the amount of benefits paid to plaintiff was
correct.
On appeal, plaintiff asserts that the district court erred in (1) failing to
review his physicians opinion that plaintiffs condition was the result of chronic
fatigue syndrome, a physical illness; (2) finding that UNUMs review of his case
was adequate; (3) holding that the UNUM mental illness limitation was not
ambiguous; (4) finding that plaintiff was not disabled based on Dr. Levys report;
-3-
(5) refusing to consider exhibits and testimony proffered by plaintiff; and

(6) concluding that the monthly benefit payment amounts were correct.
[A] denial of benefits challenged under 1132(a)(1)(B) is to be reviewed
under a de novo standard unless the benefit plan gives the administrator or
fiduciary discretionary authority to determine eligibility for benefits or to
construe the terms of the plan.
McGraw v. Prudential Ins. Co. of Am.
1253, 1258 (10th Cir. 1998) (quoting
, 137 F.3d
Firestone Tire & Rubber Co. v. Bruch
489 U.S. 101, 115 (1989)). The district court found, and the parties do not
dispute, that the UNUM policy under review here does not provide the plan
administrator or fiduciary with discretion to determine eligibility for benefits or
construe the plans terms. Therefore, we review
de novo UNUMs decision to
deny plaintiff benefits based on his claim of a physical disability. Pursuant to the
order in limine, review of the decision to deny further benefits was limited to the
evidence before the plan administrator at the time the decision was made.
Sandoval v. Aetna Life & Cas. Ins. Co.
See
, 967 F.2d 377, 380 (10th Cir. 1992)
(reviewing administrators decision under arbitrary and capricious standard). For

matters not covered by the order in limine, we review the district courts findings
of fact for clear error and its conclusions of law
de novo . See State Ins. Fund v.
Ace Transp. Inc. , No. 98-6368, 1999 WL 961184, *2 (10th Cir. Oct. 20, 1999).
-4-
We first address plaintiffs claim that the district court found that plaintiff
was not disabled. This argument is based on the district courts finding number
fifty-three, stating that an independent psychiatric examiner, Dr. Levy, [a]ttached
to [his] report . . . a Mental Disorders Functional Assessment Form, indicating
that plaintiff was capable of working.
Appellants App., Vol. III at 1039
(findings of fact and conclusions of law). The statement does not constitute an
independent district court finding that plaintiff was not disabled. Moreover, the
district courts judgment does not rely on Dr. Levys opinion. Accordingly, there
was no reversible error.
Similarly, we are not persuaded that the district court refused to consider
evidence plaintiff submitted pertaining to his income records and depositions to
support his claim that the amount of disability payments was incorrect. The
district court determined that UNUM had correctly calculated the payment amount
pursuant to the unambiguous policy language. Therefore, plaintiffs proffered
evidence was irrelevant to the district courts conclusion.
Our review of the record on appeal, the briefs submitted by the parties, and
the district courts ruling does not indicate any reversible error in the district
courts judgment. Applying the standards set out above, we affirm the district
courts judgment for substantially the reasons stated in the Findings of Fact and
-5-
Conclusions of Law, dated September 9, 1998, and entered on the docket

September 17, 1998.
The judgment of the United States District Court for the District of
Colorado is AFFIRMED.
Entered for the Court
Michael R. Murphy
Circuit Judge
-6-

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

JOSEPH P. ROCK, JR.,

ORDER AND JUDGMENT

Before EBEL , LUCERO , and MURPHY , Circuit Judges.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

payments to continue until he attained the age of sixty-five, as provided by the

(5) refusing to consider exhibits and testimony proffered by plaintiff; and

McGraw v. Prudential Ins. Co. of Am.

1253, 1258 (10th Cir. 1998) (quoting

Firestone Tire & Rubber Co. v. Bruch

de novo UNUMs decision to

, 967 F.2d 377, 380 (10th Cir. 1992)

(reviewing administrators decision under arbitrary and capricious standard). For

de novo . See State Ins. Fund v.

Appellants App., Vol. III at 1039

Conclusions of Law, dated September 9, 1998, and entered on the docket

Entered for the Court

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