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Case: 4:20-cv-01921-AGF Doc. #: 1 Filed: 12/31/20 Page: 1 of 10 PageID #: 1
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`LYNNE WENDEL,
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`Plaintiff,
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`vs.
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`LIFE INSURANCE COMPANY
`OF NORTH AMERICA d/b/a CIGNA
`GROUP INSURANCE
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`Case No.: 4:20-cv-1921
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MISSOURI
`EASTERN DIVISION
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`Serve:
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`Defendant.
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`COMPLAINT
`EMPLOYEE RETIREMENT INCOME SECURITY ACT
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`COMES NOW Plaintiff Lynne Wendel, by and through undersigned counsel, pursuant to
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`the Employee Retirement Income Security Act of 1974, as amended 29 U.S.C. §1001 et.
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`seq., and for her cause of action against defendant Life Insurance Company of North America
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`d/b/a Cigna Group Insurance (hereinafter “Cigna”), respectfully states the following:
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`1.
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`Plaintiff Lynne Wendel (hereinafter “Mrs. Wendel”) brings this action against
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`Defendant Cigna for damages caused by the Defendant’s breach of statutory, contractual, and
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`fiduciary obligations and violations of the Employee Retirement Income Security Act of 1974, as
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`amended 29 U.S.C. § 1001 et. seq. (“ERISA”).
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`2.
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`This is an action brought pursuant to 29 U.S.C. §1132(e)(1) and 28 U.S.C. §1331.
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`Under 29 U.S.C. §1132(f), the Court has jurisdiction without respect to the amount in
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`controversy or the citizenship of the parties.
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`

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`Case: 4:20-cv-01921-AGF Doc. #: 1 Filed: 12/31/20 Page: 2 of 10 PageID #: 2
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`3.
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`Venue is proper in this District pursuant to 29 U.S.C. §1132(e)(2), in that the
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`subject employee welfare benefit plan and employee insurance program are administered in this
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`District, the breaches of duty herein alleged occurred in this District, and Defendants reside or
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`are found in this District.
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`Parties
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`4.
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` Mrs. Wendel is an individual residing in Jefferson County, in the Eastern District
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`of Missouri. Mrs. Wendel was an employee of the Dolan Company and is a vested participant in
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`a Group Insurance Policy which provides an employee benefit plan within the meaning of 29
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`U.S.C. § 1132(a).
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`5.
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`Mrs. Wendel has standing to bring this action as a beneficiary under 29 U.S.C.
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`§1132(a).
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`6.
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`Defendant Cigna provides coverage for certain employees of the Dolan Company
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`under an employee welfare benefit plan (hereinafter “Plan”) within the meaning of 29 U.S.C. §
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`1002(1). Specifically, Cigna provides Long Term Disability benefits (hereinafter “LTD”), among
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`other benefits for the Dolan Company.
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`7.
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`Cigna is an insurance company incorporated in Pennsylvania and is doing
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`business in Missouri under a license to do business as a Foreign Insurance Company.
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`8.
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`Cigna administers and pays benefits under the terms of the LTD plan and is a
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`fiduciary within the meaning of 29 U.S.C. §1002(21) and 1102.
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`9.
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`The Dolan Company serves as the plan administrator and sponsor under the
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`meaning of 29 U.S.C. § 1002(16).
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`COUNT I
`WRONGFUL DENIAL OF BENEFITS PURSUANT TO 29 U.S.C § 1132 (a)(1)(b)
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`

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`Case: 4:20-cv-01921-AGF Doc. #: 1 Filed: 12/31/20 Page: 3 of 10 PageID #: 3
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`10. Mrs. Wendel became disabled in 2015 and was forced to stop working due to
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`righted sided breast cancer status post chemotherapy and radiation. Mrs. Wendel had post-
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`operative issues with an axillary seroma requiring incision and drainage and ongoing issues with
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`pain and weakness in her right upper extremity, including lymphedema.
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`11. Mrs. Wendel also suffers from chest pain, lifelong intractable chronic migraines,
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`double vision, poor memory, fatigue, neuropathy in her feet and hands, vertigo, a frozen right
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`shoulder, diabetes, major depression, post-traumatic stress disorder (PTSD) in relation to her
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`breast cancer, seizures, rheumatoid arthritis, and secondary parkinsonism.
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`12.
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`As a result of Mrs. Wendel’s diagnoses and the resulting disability, Mrs.
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`Wendel’s treating physicians and psychiatrists have determined that Mrs. Wendel is unable to
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`work.
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`13.
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`Since 2016, Mrs. Wendel’s conditions have worsened and have in no way
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`improved.
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`14.
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`At the time Mrs. Wendel was forced to stop working, she was an eligible
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`employee under the Plan for her Long-Term Disability (LTD) benefits and Wavier of Premium
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`benefits (WOP) for the diagnoses of breast cancer and her post-operative issues.
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`15.
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`On April 18, 2017, Cigna determined that Mrs. Wendel was no longer qualified
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`for her Waiver of Premium benefits.
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`16.
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`On June 8, 2017, Mrs. Wendel filed an appeal for review of Cigna’s adverse
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`determination of her WOP benefits.
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`17.
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`On September 17, 2019, Cigna further determined that Mrs. Wendel was no
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`longer disabled and no longer qualified for her Long-Term Disability benefits under the Plan.
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`

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`Case: 4:20-cv-01921-AGF Doc. #: 1 Filed: 12/31/20 Page: 4 of 10 PageID #: 4
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`18.
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`The adverse determination prompted Mrs. Wendel to file her second WOP appeal
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`and her first LTD appeal on November 8, 2019.
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`19.
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`In the review of her appeals, on May 20, 2020, Cigna upheld their adverse
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`determinations of her WOP and LTD benefits, and Mrs. Wendel promptly filed her second
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`appeal for her LTD benefits.
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`20.
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`21.
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`Her second appeal for her LTD benefits was denied on October 17, 2020.
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`In support of her appeals of Mrs. Wendel submitted extensive medical records
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`dating from 2015 through 2020 from several physicians, which outlined the treatment and care
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`Mrs. Wendel received and was receiving for her multiple conditions.
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`22.
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`Throughout her treatment, she was given various physical restrictions and
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`recommendations, including the use of a cane and roller to assist in ambulation.
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`23.
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`Due to her neuropathy and seizure-like spells, Cigna’s medical reviewers
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`suggested that as a matter of safety, she followed standard seizure precautions, which included:
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`a) no driving unless state laws are satisfied;
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`b) no climbing and working around heights;
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`c) no working in a water environment;
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`d) no working around electronic mechanical hazards;
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`e) can stand and walk up to four hours, no more than 30 minutes at a time;
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`f) occasionally, lift and carry 20 pounds and frequently 10 pounds; and
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`g) occasionally bend, stoop, kneel, crouch, and crawl.
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`24.
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`Her physicians suggested further restrictions. Most recently, on June 3, 2019, Dr.
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`Gregory Galakatos opined that Mrs. Wendel could only stand or walk occasionally for 0-2.5
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`hours a day and that she could only occasionally lift more than 10 pounds.
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`

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`Case: 4:20-cv-01921-AGF Doc. #: 1 Filed: 12/31/20 Page: 5 of 10 PageID #: 5
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`25.
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`On August 26, 2020, Mrs. Wendel submitted to Cigna for review the results of a
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`Functional Capacity Evaluation (FCE) that concluded that Mrs. Wendel met only the material
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`handling demands for a light demand vocation.
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`26.
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`The FCE explained that Mrs. Wendel was not able to safely perform sitting for
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`long periods, standing for long periods, lifting and moving work required weights, and walking
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`work required distances.
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`27.
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`Cigna determined that Mrs. Wendel was able to perform sedentary level work,
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`which as defined by the Dictionary of Occupational Titles and expanded upon by Cigna as work
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`that involves sitting “most of the time.”
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`28.
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`Since Mrs. Wendel cannot safely sit or stand for long periods of time, she does
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`not meet the definitional criteria needed for sedentary level work.
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`29.
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`Additionally, the FCE report further confirmed that Mrs. Wendel had diminished
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`functional use of her upper extremities in work above the chest, shoulder, and head level, along
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`with gait deficiencies.
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`30.
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`Despite providing substantial evidence that she has been continuously totally
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`disabled under the terms of the Plan, Cigna has denied, and continues to deny, Mrs. Wendel her
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`LTD benefits since 2019 and her WOP benefits since 2017.
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`31.
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`At all relevant times, Mrs. Wendel has been under the care of licensed medical
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`doctors.
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`32. Mrs. Wendel has appealed all adverse benefit determinations and exhausted all
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`available administrative remedies.
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`Case: 4:20-cv-01921-AGF Doc. #: 1 Filed: 12/31/20 Page: 6 of 10 PageID #: 6
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`33. Cigna’s denial of long-term disability benefits was arbitrary and capricious, a
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`breach of fiduciary duties not based on substantial evidence, and was the product of a conflict of
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`interest and serious procedural irregularities.
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`34.
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`Cigna is required to pay the benefits due under the terms of the Plan, together
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`with prejudgment interest, attorney’s fees, and costs.
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`COUNT II
`WRONGFUL DENIAL OF LIFE INSURANCE WAIVER OF PREMIUM BENEFITS
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`35.
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`Plaintiff incorporates by reference paragraphs 1-34 of his Complaint as if fully set
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`forth as paragraph
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`36.
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`At all times relevant to this action, Plaintiff was a covered beneficiary under the
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`group policy issued by Cigna to the Dolan Company pursuant to the policy’s waiver of premium
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`payments in the event of total disability.
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`37.
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`The waiver of premium (hereinafter “WOP”) policy states:
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`“An employee will be considered Disabled if, because of Injury or Sickness,
`he or she is unable to perform the material and substantial duties of his or her
`occupation. After 12 months of disability, the Employee will be considered
`disabled only if he or she is unable to perform the material and substantial
`duties of any occupation which he or she may reasonably become qualified
`based on education, training, or experience.”
`38. Mrs. Wendel is entitled to a waiver of her premiums for that life insurance benefit
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`due to her disability, as outlined above.
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`39.
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`Cigna has denied Mrs. Wendel’s waiver on the grounds that she does not meet the
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`definition of disability under the policy.
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`

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`Case: 4:20-cv-01921-AGF Doc. #: 1 Filed: 12/31/20 Page: 7 of 10 PageID #: 7
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`40. Mrs. Wendel has exhausted her procedural remedies with regards to the waiver of
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`her life insurance premium.
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`41.
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`Cigna is required to reinstate her life benefit under the policy for life insurance,
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`including the waiver of premiums.
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`COUNT III
`BREACH OF FIDUCIARY DUTY PURSUANT TO 29 U.S.C. §1132(a)(3)
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`
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`Plaintiff incorporates by reference paragraphs 1 through 43 as though fully set
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`42.
`therein.
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`43. Mrs. Wendel also brings this claim against Cigna under ERISA § 502(a)(3), 29
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`U.S.C. § 1132(a)(3), which permits a participant to bring an action to enjoin any act or practice
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`which violates ERISA or the terms of the plan or to obtain other appropriate equitable relief to
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`redress such violations or to enforce any provisions of ERISA or the terms of the plan.
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`44.
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`In terminating benefits under the Plan, Cigna, acting as a fiduciary in the
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`administration of Mrs. Wendel’s claim, failed to adequately consider the facts and circumstances
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`regarding her claims, failed to adequately investigate the facts supporting her claim, and relied
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`on biased reviews of Mrs. Wendel’s medical conditions in terminating benefits.
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`45.
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`ERISA § 503, 29 U.S.C. § 1133 requires that every employee benefit plan must:
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`1)
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`provide adequate notice in writing to any participant or beneficiary whose claim
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`for benefits under the plan has been denied, setting forth the specific reasons for
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`such denial, written in a manner calculated to be understood by the participant;
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`and
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`

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`Case: 4:20-cv-01921-AGF Doc. #: 1 Filed: 12/31/20 Page: 8 of 10 PageID #: 8
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`2)
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`afford a reasonable opportunity to any participant whose claim for benefits has
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`been denied for a full and fair review by the appropriate named fiduciary of the
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`decision denying the claim.
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`46.
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`As set forth above, Mrs. Wendel provided objective medical information
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`regarding her disability, however, Cigna made its claims decisions without reviewing that
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`information or giving that information the appropriate consideration and weight.
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`47. Cigna arbitrarily terminated Mrs. Wendel’s LTD and WOP benefits, without
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`objective evidence of a change in her condition, in order to apply a 36-month minimum limit
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`applicable to long-term disabilities and terminate Mrs. Wendel’s benefits.
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`48.
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` Furthermore, in August 2016, Mrs. Wendel was awarded Social Security
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`Disability Insurance (SSDI) by the Social Security Administration, but Cigna did not consider
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`the SSDI determination in making its own disability benefit determination.
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`49.
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`Cigna interpreted the provisions of the Plan in an arbitrary and inconsistent way
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`and did not provide Mrs. Wendel with a reasonably clear explanation of what evidence they
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`required her to provide and what standards and guidelines they were utilized to determine her
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`disability benefits.
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`50.
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`As a result of Cigna’s violations of ERISA, Mrs. Wendel suffered actual harm, as
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`she was denied benefits to which she was entitled under the Plan, the incurred attorneys’ fees and
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`costs, and suffered other financial losses.
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`51.
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`Cigna breached their fiduciary duties under ERISA § 404, 29 U.S.C. § 1104,
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`insofar as they failed to discharge their duties handling Mrs. Wendel’s benefits claim in a
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`careful, skillful, and diligent manner.
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`

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`Case: 4:20-cv-01921-AGF Doc. #: 1 Filed: 12/31/20 Page: 9 of 10 PageID #: 9
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`WHEREFORE, Plaintiff Lynne Wendel respectfully prays that this Court:
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`1) Grant judgment in her favor and against Defendants on all claims;
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`2) Order that Defendants pay all benefits due under the Plan from to the date of
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`judgment, including interest thereon;
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`3) Declare Plaintiff’s rights under the terms of the Plan, and clarify her rights to future
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`benefits under the terms of the Plan;
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`4) Enjoin Defendants to provide a procedure for a full and fair review of adverse
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`determinations under the Plan in accordance with 29 U.S.C. § 1133;
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`5) Enjoin Defendants to discharge their fiduciary duties in accordance with 29 U.S.C. §
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`1104;
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`6) Order restitution or surcharge to disgorge Defendants’ unjust enrichment in wrongfully
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`delaying and denying benefits and/or to make Plaintiff whole for losses, and payment of her
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`attorneys’ fees caused by Defendants’ violation of 29 U.S.C. § 1133 and breach of fiduciary
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`duty;
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`7) Order that Defendant pay the costs of suit, including Plaintiff’s attorneys’ fees and
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`costs pursuant to 29 U.S.C. § 1132(g); and
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`8) Award all such other and further relief as this Court deems just and proper.
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`GALLAGHER DAVIS, L.L.P.
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`/s/ Matthew R. Davis
`Matthew R. Davis
`Adam J. Olszeski
`Gallagher Davis, LLP
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`

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`Case: 4:20-cv-01921-AGF Doc. #: 1 Filed: 12/31/20 Page: 10 of 10 PageID #: 10
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`2333 S. Hanley Road
`St. Louis, MO 63144
`(314) 725-1780
`(314) 725-0101 Fax
`matt@gallagherdavis.com
`adam@gallagherdavis.com
`
`
`
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`

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