                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 04a0185n.06
                            Filed: December 20, 2004

                                             No. 03-6607

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


PATRICIA BURDEN, Administratrix of the             )
Estate of Darrell Burden,                          )
                                                   )
        Plaintiff-Appellant,                       )
                                                   )
v.                                                 )    ON APPEAL FROM THE UNITED
                                                   )    STATES DISTRICT COURT FOR THE
HARTFORD LIFE AND                  ACCIDENT        )    WESTERN DISTRICT OF KENTUCKY
INSURANCE COMPANY,                                 )
                                                   )
        Defendant-Appellee.                        )



        Before: NORRIS and COOK, Circuit Judges; BECKWITH, District Judge.*


       COOK, Circuit Judge. Plaintiff Patricia Burden appeals the district court’s grant of summary

judgment for Defendant-Appellee Hartford Life and Accident Insurance Company on her deceased

husband’s ERISA action challenging a denial of disability benefits. Because Hartford did not abuse

its discretion in denying benefits, we affirm the district court’s decision.


                                       I. Standard of Review


       Where, as here, a disability insurance plan grants its administrator discretion to determine

benefit eligibility, we review a denial of benefits under the arbitrary and capricious standard. Yeager


        *
        The Honorable Sandra S. Beckwith, United States District Judge for the Southern District
of Ohio, sitting by designation.
 No. 03-6607
 Burden v. Hartford Life & Accident Ins. Co.

v. Reliance Standard Life Ins. Co., 88 F.3d 376, 380 (6th Cir. 1996). Though plaintiff argues for

“heightened arbitrary and capricious review” because Hartford both funds and administers this plan,

courts factor an insurer’s dual role into its review under an arbitrary and capricious standard, rather

than alter the standard. Peruzzi v. Summa Med. Plan, 137 F.3d 431, 433 (6th Cir. 1998).


                          II. Burden’s workers’ compensation agreement.


        According to plaintiff, because Hartford’s letter denying benefits did not address a statement

in a workers’ compensation settlement agreement between Burden and his employer that Burden did

“not retain the physical capacity to return to the same type of work he performed at the time of the

injury,” Hartford’s decision was arbitrary and capricious. In its initial denial letter, Hartford did list

the workers’ compensation agreement among the materials it considered in making its decision.

Plaintiff insists, however, Hartford was also required to state specifically why it disagreed with the

unable-to-return-to work statement. We conclude that Hartford’s detailed review of Burden’s

medical record rendered further discussion of the workers’ compensation agreement unnecessary.

See Hurse v. Hartford Life & Accident Ins. Co., No. 02-5496, 77 Fed. Appx. 310, 318 (6th Cir. Sep.

26, 2003) (decision was not arbitrary and capricious where denial letter did not mention a Social

Security Administration determination that plaintiff was disabled).


                      III. Ex parte communication with the treating physician.


        Burden also argues that an ex parte call to his treating physician by Hartford’s

independent medical expert evidences the arbitrary and capricious nature of Hartford’s decision.

                                                   -2-
No. 03-6607
Burden v. Hartford Life & Accident Ins. Co.

Even if improper, however, the other independent evidence identified by Hartford prevents

labeling Hartford’s decision arbitrary and capricious. For example, after reviewing the medical

record, Hartford’s physician concluded Burden’s subjective complaints exceeded the symptoms

one would expect from his diagnosed disease, carpal tunnel syndrome. Burden’s treating

physician also supported this conclusion, noting on Burden’s application for disability benefits

that his determinations of Burden’s impairments were “based upon subjective complaints.”

Burden’s treating physician also stated that Burden could work forty hours per week, with certain

restrictions. In view of this evidence and other evidence Hartford reviewed, the ex parte

communication with Burden’s treating physician cannot be said to render Hartford’s denial

arbitrary and capricious.


       We affirm.




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