                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 07a0132p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                     X
                               Plaintiff-Appellee, -
 THOMAS WENNER,
                                                      -
                                                      -
                                                      -
                                                          Nos. 05-6534/6740
           v.
                                                      ,
                                                       >
 SUN LIFE ASSURANCE COMPANY OF CANADA,                -
                             Defendant-Appellant. -
                                                     N
                      Appeal from the United States District Court
                    for the Middle District of Tennessee at Nashville.
                    No. 03-00934—Todd J. Campbell, District Judge.
                                       Argued: September 20, 2006
                                   Decided and Filed: April 12, 2007
        Before: ROGERS and GRIFFIN, Circuit Judges; OBERDORFER, District Judge.*
                                            _________________
                                                 COUNSEL
ARGUED: Mark E. Schmidtke, SCHMIDTKE HOEPPNER CONSULTANTS, Valparaiso,
Indiana, for Appellant. Robert Jan Jennings, BRANSTETTER, KILGORE, STRANCH &
JENNINGS, Nashville, Tennessee, for Appellee. ON BRIEF: Mark E. Schmidtke, SCHMIDTKE
HOEPPNER CONSULTANTS, Valparaiso, Indiana, for Appellant. Robert Jan Jennings,
BRANSTETTER, KILGORE, STRANCH & JENNINGS, Nashville, Tennessee, for Appellee.
    OBERDORFER, D. J., delivered the opinion of the court, in which GRIFFIN, J., joined.
ROGERS, J. (pp. 7-8), delivered a separate opinion concurring in part and dissenting in part.
                                            _________________
                                                OPINION
                                            _________________
        OBERDORFER, District Judge. Thomas Wenner was the Chief Operating Officer of Orchid
Manufacturing Group (“Orchid”) when he suffered a heart attack. He sought disability benefits from
Sun Life Assurance Company of Canada (“Sun Life”) under his employer’s disability benefits plan
and, for a time, received them. In 2003, Sun Life discontinued the benefits, having determined that
Wenner was no longer disabled. Wenner challenged Sun Life’s decision in state and then federal


        *
          The Honorable Louis F. Oberdorfer, United States District Judge for the District of Columbia, sitting by
designation.


                                                        1
Nos. 05-6534/6740               Wenner v. Sun Life Assurance Co. of Canada                       Page 2


court. He argued, inter alia, that Sun Life failed to notify him of the specific reasons for its decision
as required by the Employee Retirement Income Security Act of 1974 (ERISA).
        The district court rejected Sun Life’s decision for a different reason. It concluded that Sun
Life’s determination that Wenner was no longer disabled was arbitrary and capricious and
unsupported by the administrative record. Although we do not necessarily agree with that
determination, we will affirm the district court’s judgment on the separate ground that Sun Life
violated the notice requirements of ERISA.
                                          BACKGROUND
        Suffering from acute inferior myocardial infarction, Wenner successfully underwent heart
bypass surgery in January 2001. Before the surgery Wenner could walk for only ten minutes at a
time; after the surgery Wenner could “walk[] over a mile and a quarter . . . without any kind of
symptoms.” Physician Notes (Jan. 24, 2001), JA 427. By March 2001, Wenner had returned to
work at Orchid on a reduced-hours basis, and by January 2002, he was working approximately eight-
hour workdays, with three-and-one-half of those hours spent at Orchid’s plants or corporate
headquarters and the remainder working from home. He also engaged in a number of other common
daily activities, including walking for thirty to forty-five minutes four times a week. Nevertheless,
he continued to experience shortness of breath and claimed that he was not able to cope well with
any personal or work-related stress. See Claimant Activity Questionnaire (Jan. 23, 2002), JA 375-
76.
        Sun Life initially approved Wenner’s claim for disability benefits following his surgery, and
began issuing monthly payments of about $7000 in early 2001. The benefits plan required that
Wenner periodically submit to Sun Life updated medical and personal activity information. In
October 2002, Sun Life made such a request by letter, but sent the letter to the wrong address. When
Wenner failed to respond, Sun Life followed up with a voicemail message and a second mis-
addressed letter. When Wenner again did not respond, Sun Life sent a third letter which terminated
his disability benefits. Its stated reason for the termination was that “the materials requested have
not been received.” Sun Life Letter to Wenner (Feb. 21, 2003) [“February Letter”], JA 339. The
February Letter further provided:
                If you disagree with our decision, you may request in writing a
                review of the denial within 180 days after receiving this notice of
                denial.
                You may submit written comments, documents, records or other
                information relating to your claim for benefits . . . .
                We will review your claim on receipt of the written request for
                review, and will notify you of our decision within a reasonable period
                of time . . . .
                ....
                You have the right to bring a civil action under [ERISA] following
                an adverse determination on review.
Id. Although the February Letter also was wrongly addressed, Wenner received it and appealed the
termination to Sun Life, as provided for in the letter. He claimed that he had not received Sun Life’s
other written and voicemail requests. He then submitted the requested information.
Nos. 05-6534/6740              Wenner v. Sun Life Assurance Co. of Canada                     Page 3


       Sun Life reviewed Wenner’s claim and updated information. It referred Wenner’s updated
medical records to two doctors. They both determined that Wenner was no longer physically
incapable of doing the work of a full-time corporate executive. For example, one of the doctors, a
cardiologist, said that Wenner’s medical records reflected the health of a man capable of doing the
work of a lumberjack or heavy laborer.
        Based on this information, Sun Life affirmed its termination of disability benefits. Sun Life
did not rest its termination of benefits on the ground stated in its February Letter, viz., that “the
materials requested ha[d] not been received.” Instead, it determined that Wenner was “not disabled
by [his] cardiac condition.” See Sun Life Letter to Wenner (April 30, 2003) [“April Letter”], JA
171. The April Letter further stated:
               Therefore, based on the medical information provided by your
               treating physician, the comprehensive review by our independent
               physician reviewers, and the fact that you have been performing the
               duties of your own occupation on a full-time basis as needed, you do
               not meet the policy definition of disability as outlined elsewhere in
               this letter. Therefore, no further benefits are payable, and your claim
               will remain closed.
               All administrative remedies have been exhausted and your file will
               remain closed.
               ....
               You have the right to bring a civil action under [ERISA] . . . .
Id., at JA 172. The April Letter, unlike the February Letter, did not provide for any means of appeal
to Sun Life of the determination that Wenner was no longer disabled. Indeed, on at least three
separate occasions thereafter when Wenner attempted to appeal this determination to Sun Life, it
expressly denied him any right to appeal and referred him to his rights under ERISA. See DeCoff
Letter to Johnson (Aug. 15, 2003), JA 147; Prior Letter to Johnson (June 26, 2003), JA 151; Prior
Letter to Johnson (June 5, 2003), JA 156.
       Finally, on September 8, 2003, Wenner filed a judicial complaint against Sun Life in the
Chancery Court of Davidson County in Nashville, Tennessee. The complaint prayed for a decree
“awarding the total value of [long-term disability income] benefits” that Sun Life had denied him.
Sun Life removed the action to the United States District Court for the Middle District of Tennessee
(Campbell, J.), basing federal jurisdiction on ERISA’s preemption of Wenner’s claims. 28 U.S.C.
§ 1441; see Dist. Ct Mem. Op., at 3 (April 11, 2005), JA 612 (noting that Wenner’s claim is
preempted and governed by ERISA).
         Following the parties’ cross motions for judgment on the administrative record, the district
court held that Sun Life’s decision to terminate the benefits was arbitrary and capricious. The court
agreed with Wenner that where Sun Life had mis-addressed the letters requesting updated
information, the failure to provide such information could not serve as a basis for Sun Life’s denial
of benefits. Sun Life does not appeal this finding. See Appellant’s Br. at 29 n.7 (dismissing the
district court’s finding in this regard because “[i]n any event” Sun Life ultimately did receive and
render decision on the requested information).
        The court further concluded that Sun Life’s determination that Wenner was not disabled was
not supported by the administrative record. Sun Life appeals this finding, arguing that the district
court failed to abide by the appropriate standard for reviewing a plan administrator’s determination
Nos. 05-6534/6740              Wenner v. Sun Life Assurance Co. of Canada                      Page 4


under ERISA and improperly imposed on Sun Life the burden of proving cessation of Wenner’s
disability.
                                           DISCUSSION
        It is well-settled that this court “review[s] de novo the decision of a district court granting
judgment in an ERISA disability benefit action based on an administrative record,” applying the
same legal standard as does the district court. Glenn v. MetLife, 461 F.3d 660, 665-66 (6th Cir.
2006) (citing Whitaker v. Hartford Life & Accident Ins. Co., 404 F.3d 947, 949 (6th Cir. 2005), and
Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 613 (6th Cir. 1998)). Here, the correct legal
standard to apply to Sun Life’s denial of benefits is the arbitrary and capricious standard. See Dist.
Ct Mem. Op., at 4 (April 11, 2005), JA 613 (noting that it is undisputed that the benefits plan
“clearly indicates that the arbitrary and capricious standard applies to review of the plans
administrator’s benefits determination”); see also Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 115 (1989); Glenn, 461 F.3d at 666. However, this court reviews de novo the legal question
whether Sun Life in denying Wenner’s claim complied with the notice requirements of ERISA.
McCartha v. National City Corp., 419 F.3d 437, 444 (6th Cir. 2005) (citing Kent v. United Omaha
Life Ins. Co., 96 F.3d 803, 806 (6th Cir. 1996)).
     It is clear from the record that Sun Life failed to comply with the notice requirements of
ERISA. ERISA § 503, codified at 29 U.S.C. § 1133, provides:
               In accordance with regulations of the Secretary, every employee
               benefit plan shall --
                       (1) provide adequate notice in writing to any
                       participant or beneficiary whose claim for benefits
                       under the plan has been denied, setting forth the
                       specific reasons for such denial, written in a manner
                       calculated to be understood by the participant, and
                       (2) afford a reasonable opportunity to any participant
                       whose claim for benefits has been denied for a full
                       and fair review by the appropriate named fiduciary of
                       the decision denying the claim.
29 U.S.C. § 1133; see also 29 C.F.R. § 2560.503-1 (implementing regulation). The “essential
purpose” of the statute is twofold: (1) to notify the claimant of the specific reasons for a claim
denial, and (2) to provide the claimant an opportunity to have that decision reviewed by the
fiduciary. See Moore v. Lafayette Life Ins. Co., 458 F.3d 416, 436 (6th Cir. 2006) (citing Kent, 96
F.3d at 807). This circuit applies a “substantial compliance” test to determine whether § 1133’s
notice requirements have been met. See id. The test “considers all communications between an
administrator and plan participant to determine whether the information provided was sufficient
under the circumstances.” Id. (citing cases). If the communications between the administrator and
participant as a whole fulfill the twin purposes of § 1133, the administrator’s decision will be upheld
even where the “particular communication does not meet those requirements.” Id. (quoting Kent,
96 F.3d at 807).
       Sun Life attempted to fulfill the requirements of § 1133 by the two letters sent to Wenner in
February and April 2003. The letters explained that his disability benefits would be terminated and
provided detailed reasons for Sun Life’s determination. However, neither substantially complies
with the requirements of § 1133.
        Assuming arguendo that Sun Life complied with § 1133(1), it violated § 1133(2) by failing
to “afford a reasonable opportunity to [Wenner] for a full and fair review by the appropriate named
Nos. 05-6534/6740               Wenner v. Sun Life Assurance Co. of Canada                       Page 5


fiduciary of the decision denying the claim,” 29 U.S.C. § 1133(2). Such language cannot encompass
Sun Life telling Wenner it was denying his claim for one reason, and then turning around and
terminating his benefits for an entirely different and theretofore unmentioned reason, without
affording him the opportunity to respond to the second, determinative reason for the termination.
As this court has repeatedly said, the purpose of § 1133 is to “notify[] Plaintiff of [the plan
administrator’s] reasons for denying his claims and affording him a fair opportunity for review,”
Moore, 458 F.3d at 436. This Sun Life did not do.
         In a very similar case, a panel of this court noted that, where a plan administrator provided
notice that implied one basis for its termination of benefits, but then in its final decision letter
included an entirely new basis, the plan administrator did not substantially comply with § 1133. See
McCartha, 419 F.3d at 446. In McCartha, the claimant received long-term disability benefits
because she suffered from depression. Id. at 439. The benefits plan conditioned payment of benefits
upon, inter alia, (a) submission to a treatment program that included monthly therapist and doctor
visits and (b) certification of continuing disability. Id. at 439-40. The plan administrator, in its
initial letter terminating the claimant’s benefits, “created the distinct impression” that its decision
rested upon the claimant’s failure to comply with her treatment program and her history of regularly
missing her appointments. Id. at 445. The appeals committee, in time, adhered to the plan
administrator’s decision to terminate benefits; however, its letter added as a second basis for denying
benefits that the claimant was no longer disabled. Id. at 441. This court ruled on appeal that that
decision violated § 1133 “because [the claimant] was never timely informed that the failure to
provide current medical opinions as to her long-term disability would be one of the bases for the
termination of her benefits.” Id. at 446.
        Likewise, in the appeal sub judice, we are confronted with the facts that Wenner’s initial
termination letter indicated that his failure to respond to an updated information request was the sole
basis for the benefits termination, but the final decision letter stated the entirely new reason that Sun
Life had determined that Wenner was no longer disabled.
         These actions clearly violated ERISA; we are left with the question of the appropriate
remedy. In McCartha, despite finding a violation of § 1133, we nonetheless held that the
“procedural violation does not require a substantive remedy” because a remand in that case would
have been a useless formality and served no useful purpose. McCartha, 419 F.3d at 447. The
appeals committee in McCartha “provided two independent reasons for denying [the claimant]
benefits,” one of which survived § 1133 scrutiny. Id. Because the second reason for the denial
(which had failed to satisfy § 1133) did not vitiate the original correct basis for the decision (that
claimant was not adhering to the required treatment program), the court found that the original basis
for the decision survived the violation of § 1133. Before this court, Sun Life no longer contends that
Wenner failed to provide updated medical information. Instead, it relies on only one reason: that
Wenner is no longer disabled. Because Sun Life never provided Wenner an opportunity to respond
by the appropriate appeals process to that dispositive basis for its decision, it violated § 1133.
        Under these circumstances, it is appropriate to reinstate all benefits beginning from the
invalid termination, as the district court did (albeit for different reasons). Our aim in granting relief
under ERISA is to place Wenner “in the position he . . . would have occupied but for the defendant’s
wrongdoing.” See Ford v. Uniroyal Pension Plan, 154 F.3d 613, 618 (6th Cir. 1998). To do so,
reinstatement is necessary. As this court observed in Sanford v. Harvard Indus., Inc., 262 F.3d 590
(6th Cir. 2001), when an initial grant of benefits has been terminated in violation of § 1133, the
benefits have “never been properly revoked. Thus [the] procedural violation is not the reason that
[the] benefits commenced, but [it] is the reason that they should continue until a decision regarding
the potential revocation of . . . benefits has been properly determined in compliance with the plan’s
provisions.” Id. at 599 (emphasis added); see Schneider v. Sentry Group Long Term Disability Plan,
422 F.3d 621 (7th Cir. 2005).
Nos. 05-6534/6740              Wenner v. Sun Life Assurance Co. of Canada                      Page 6


         Responding to our dissenting colleague, it is noteworthy McCartha provided no occasion
for the court to address the question of reinstatement of benefits. There, the court simply found that
the “procedural violation d[id] not require a substantive remedy” because the plaintiff’s claim was
meritless, and it then upheld the plan administrator’s termination of benefits. 419 F.3d at 447.
        Finally, the other cases from this court cited by the dissent all concern the proper remedy for
a § 1133 violation when the plan administrator denies a plaintiff’s initial disability claim, not the
termination of benefits that have already been granted. See, e.g., Elliott v. Metro. Life Ins. Co., 473
F.3d 613, 622 (6th Cir. 2006); Moore, 458 F.3d at 436;Univ. Hosps. of Cleveland v. S. Lorain
Merchs. Ass’n, 441 F.3d 430, 434 (6th Cir. 2006); Marks v. Newcourt Credit Group, Inc., 342 F.3d
444, 461 (6th Cir. 2003); VanderKlok v. Provident Life & Accident Ins. Co., 956 F.2d 610, 616-17
(6th Cir. 1992). We agree with the Seventh Circuit that the distinction is important: A plaintiff
denied any benefits at all has no expectation of receiving them unless her claim is meritorious, and
thus returning her to the status quo prior to the § 1133 violation requires only curing the procedural
violation so that she may fairly pursue the merits of her claim. On the other hand, a plaintiff whose
benefits have been terminated has, prior to the termination, a full expectation of continued disability
payments until they are terminated by lawful procedures. Thus, “prior to the termination of her
benefits by improper procedures, the status quo was that [the plaintiff] was receiving long-term
disability benefits” and “the appropriate remedy is an order vacating the termination of her benefits
and directing [the defendant] to reinstate retroactively the benefits.” See Schneider, 422 F.3d at 629-
30.
                                          CONCLUSION
       We have considered the other arguments of the parties and find them to be either unnecessary
to address in light of our present disposition of this appeal or without merit. For the foregoing
reasons, the judgment of the district court is affirmed for the reasons set forth in this opinion.
Nos. 05-6534/6740              Wenner v. Sun Life Assurance Co. of Canada                       Page 7


                    _______________________________________________
                     CONCURRING IN PART, DISSENTING IN PART
                    _______________________________________________
         ROGERS, Circuit Judge, concurring and dissenting. I concur in the majority opinion except
that I dissent as to the remedy. See Maj. Op. at 5-6.
        There is no legal basis to order the payment of benefits as a penalty for violation of the
procedural requirements of ERISA. First, there is no statutory basis in ERISA for the payment of
benefits not otherwise required by the plan as a penalty for violating procedural requirements. We
held, for instance, in McCartha v. National City Corp., 419 F.3d 437, 447 (6th Cir. 2005), that a plan
administrator’s procedural violation did not require a substantive remedy because the administrator
affirmed the initial benefits denial on appeal. Thus, even though the administrator violated 29
U.S.C. § 1133, the plaintiff was not entitled to a substantive remedy under ERISA because the
administrator properly determined that the plaintiff was not entitled to disability benefits. See also
Marks v. Newcourt Credit Group, Inc., 342 F.3d 444, 461 (6th Cir. 2003); Syed v. Hercules Inc., 214
F.3d 155, 162 (3d Cir. 2000) (Alito, J.).
         Reinstatement is not necessary in order to make the plaintiff whole for a procedural violation.
The flaw in holding otherwise is that a plaintiff is more than made whole—and indeed receives a
windfall—if after proper procedures it is determined that the plaintiff was not entitled to the benefits
that the administrator terminated with flawed procedures. In this regard I respectfully disagree with
the Seventh Circuit’s analysis in Schneider v. Sentry Long Term Disability, 422 F.3d 621, 629-30
(7th Cir. 2005). The plan determines what the plaintiff is entitled to in the way of benefits, and
nothing in the plan has been shown to provide benefits until the administrator complies with all
procedural requirements. Instead, the plan provides that benefits will continue until “the date the
Employee is no longer Totally or Partially Disabled.” JA 44. The plan does not provide that
benefits will continue until the administrator complies with ERISA’s procedural provisions. This
is consistent with ERISA’s procedural provisions, which contemplate that a plan participant receives
notice and an opportunity for review only after the administrator has denied benefits. See 29 U.S.C.
§ 1133 (requiring notice and opportunity for review to any participant whose claim for benefits “has
been denied”). Wenner was entitled to benefits until the plan administrator determined that he was
no longer disabled, not until the administrator followed ERISA’s procedural requirements for
notifying Wenner of its decision and providing him a full and fair review of that decision. The plan
administrator’s substantive disability determination is not the same as the administrator’s failure to
provide Wenner an opportunity for review of that determination, and an error in the latter does not
negate the effect of the former.
        Furthermore, if our job is “to place Wenner in the position he would have occupied but for
the defendant’s wrongdoing,” Maj. Op. at 5, then ordering reinstatement of benefits goes too far.
At the time that Sun Life failed to comply with ERISA’s procedural requirements, it had already
concluded that Wenner was no longer disabled and, accordingly, denied him continued benefits.
Wenner was in the position of a claimant who had been denied benefits but afforded no opportunity
for review of that denial. To order reinstatement of benefits places Wenner in a better position than
he was in prior to Sun Life’s violation of § 1133.
        Sanford v. Harvard Industries, Inc., 262 F.3d 590 (6th Cir. 2001), does not truly support the
remedy ordered in this case. In Sanford we upheld a district court order reversing an ERISA
administrator’s termination of certain retirement benefits. Id. at 592. The district court held that,
because of procedural violations by the administrator, the case should be remanded to the
administrator for a decision on whether the beneficiary was indeed eligible. Id. at 594. The district
court also held that the benefits should be reinstated “pending a decision on the issue of Sanford’s
Nos. 05-6534/6740              Wenner v. Sun Life Assurance Co. of Canada                    Page 8


retirement eligibility by the [Administrator].” Id. at 599. We upheld the order in all respects. We
did not hold, however, that Sanford was simply entitled to the retirement benefits because of a
procedural violation. If so, there would have been no need for a remand. In contrast, in this case
a remand is not ordered on the theory that the procedural violation simply entitles Wenner to the
benefits. Sanford does not compel that result.
         Indeed, Sanford is inconsistent with the Seventh Circuit’s analysis in Schneider. In
Schneider the Seventh Circuit in affirming retroactive reinstatement of benefits rejected the
possibility of a remand to the administrator, 422 F.3d at 629-30, while in Sanford we affirmed a
district court order requiring a remand, 262 F.3d at 599.
        A procedural violation of the type we find in this case warrants remand to the administrator
to make a proper determination. Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 622 (6th Cir. 2006);
Sanford, 262 F.3d at 599; Marks, 342 F.3d at 461; Moore v. LaFayette Life Ins. Co., 458 F.3d 416,
436 (6th Cir. 2006). In the alternative, a remand to the district court to supplement the record may
be warranted. VanderKlok v. Provident Life & Accident Ins. Co., 956 F.2d 610, 616-17 (6th Cir.
1992); Univ. Hosps. of Cleveland v. S. Lorain Merchs. Ass’n Health & Welfare Benefit Plan &
Trust, 441 F.3d 430, 434 (6th Cir. 2006). Moreover, the fact that this case involves a termination
of benefits rather than an initial denial may warrant equitable interim relief like that affirmed in
Sanford, 262 F.3d at 599. But none of this warrants dispensing altogether with the need for a
remand on the theory that Wenner is substantively entitled to benefits because of a procedural error.
Wenner was denied an opportunity to have Sun Life review the initial denial of benefits, and he
would receive just that with a remand to Sun Life. If, after such a review, Sun Life determined that
Wenner was still disabled according to the terms of the plan (or, if Sun Life determined that Wenner
was not disabled, but a reviewing court concluded that the determination was arbitrary or
capricious), Wenner would be entitled to benefits. There is no need to manufacture a substantive
remedy for a procedural violation when the procedural violation can be appropriately remedied by
requiring the denied procedures.
        I note finally as a policy matter that today’s holding will unduly increase the stakes when
procedural violations are alleged in the termination of ERISA-covered benefits. On the one hand,
terminated beneficiaries with little chance of successful substantive appeals will be encouraged to
raise procedural challenges. On the other hand, reviewing courts may be reluctant to insist on full
compliance with procedural requirements when the identification of procedural flaws results in
automatic substantive reinstatement.
