                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 07-1520
LISA PAKOVICH,
                                              Plaintiff-Appellant,
                               v.

BROADSPIRE SERVICES, INC.,
                                             Defendant-Appellee.
                        ____________
           Appeal from the United States District Court
              for the Southern District of Illinois.
            No. 05 C 445—Michael J. Reagan, Judge.
                        ____________
       ARGUED APRIL 14, 2008—DECIDED JULY 24, 2008
                        ____________


 Before FLAUM, EVANS, and TINDER, Circuit Judges.
  FLAUM, Circuit Judge. Plaintiff Lisa Pakovich brought an
ERISA suit after Defendant Broadspire Services deter-
mined she was no longer entitled to long term disability
benefits. The lower court found in Pakovich’s favor,
determining that Broadspire had unreasonably con-
cluded that Pakovich was able to perform the essential
functions of her sales position with Verizon Wireless, the
standard for receiving disability benefits for the first
24 months (“own occupation” standard). The district
court went further, however, and also determined that
Pakovich was not entitled to disability benefits beyond
2                                              No. 07-1520

the 24 month mark, where benefits were only available if
Pakovich was disabled from all occupations (“any occupa-
tion” standard). Pakovich appeals this latter ruling,
arguing that the district court’s decision should be
reversed and her benefits reinstated. For the following
reasons, we vacate that portion of the district court’s
decision appealed by Pakovich, with orders that the
determination of long term disability under the “any
occupation” standard be remanded to the Plan Administra-
tor.


                     I. Background
  Pakovich worked as a retail sales representative for
Verizon and applied for long term disability benefits in
September 2002 following a series of back surgeries. At
the time, the long term disability plan (“the Plan”) was
administered by Kemper National Services, which in
October 2002, found Pakovich to have been disabled as
of July 17, 2002. Under the long term disability policy’s
terms, benefits for the first 24 months were based upon
Pakovich’s inability to perform “the Essential Functions of
[her] Regular Occupation,” with continuing benefits
beyond the 24 month mark depending upon Pakovich
being “prevented from performing the Essential Func-
tions of any Gainful Occupation that [her] training, educa-
tion and experience would allow [her] to perform.” The
policy also provided that any benefits paid out by the
Plan would be offset by the receipt of Social Security
benefits. In November 2003, Pakovich was found to be
“totally disabled” by the Social Security Administration,
and thus was approved for Social Security benefits retro-
active to July 2002. By the end of 2003, Broadspire
was administering the Plan.
No. 07-1520                                              3

  Between February 2002 and March 2004, Pakovich was
examined by a host of different physicians, some of
whom noted that Pakovich was only capable of per-
forming sedentary work. The records from these exam-
inations were then reviewed by physicians selected by
Broadspire. In February 2004, Pakovich received a letter
from Broadspire indicating that, based upon the informa-
tion at its disposal, it did not appear that Pakovich was
disabled under the Plan’s “own occupation” standard.
She also received a separate letter the same day informing
her that Broadspire would be conducting an evaluation
in the future to determine whether Pakovich would
continue to qualify for long term disability after July 17,
2004 under the “any occupation” standard. This “any
occupation” evaluation, however, never occurred. Instead,
on April 22, 2004, Pakovich was informed by letter
that after reviewing all her medical documentation,
Broadspire had concluded that she was no longer dis-
abled under the “own occupation” standard and that her
benefits would be discontinued after April 30, 2004.
Pakovich appealed the decision, and on June 22, 2004,
was awarded further benefits from May 1 until May 14,
2004 due to a recent knee surgery, but nothing beyond that
date. Pakovich then brought suit in federal court pursuant
to Section 502(a) of the Employee Retirement Income
Security Act of 1974 (“ERISA”), challenging Broadspire’s
termination of her benefits.
  In November 2006, the district court issued a memoran-
dum and order on Pakovich’s Motion for Judgment under
FED. R. CIV. P. 52 and Broadspire’s Motion for Sum-
mary Judgment. The court concluded that Broadspire’s
decision to terminate Pakovich’s long term disability
benefits was arbitrary and capricious. The district court
4                                                   No. 07-1520

noted that many physicians had determined that Pakovich
was only capable of performing sedentary work, and
found that Broadspire had unreasonably characterized
Pakovich’s current position as one involving “light work,”
when by Defendant’s own analysis of the position, it
entailed lifting requirements near the high end of what is
classified as “medium work.”1
  The district court’s entry of judgment in Pakovich’s favor
regarding her qualification for disability benefits under
the “own occupation” standard, however, did not end
the matter. Instead, the district court then went on to
determine for itself whether Pakovich was also entitled
to benefits under the “any occupation” standard. The
court, in a brief paragraph, stated that the evidence in
the record indicated that Pakovich could perform at least
sedentary work, and accordingly, found that Pakovich did
not qualify for disability benefits after July 2004, and thus
entered judgment for Broadspire on that issue. In sum,
these two rulings meant that Pakovich was entitled
to disability benefits from Broadspire between May 14,
2004 and July 16, 2004.
  Following this Memorandum and Order, Pakovich filed
a Motion to Alter or Amend the Judgment under FED. R.
CIV. P. 59(e). In her motion, she argued that Broadspire
never addressed her qualification for benefits under the
“any occupation” standard, and moreover, that the dis-
trict court’s finding that she could perform sedentary


1
   Pakovich’s position required her to be able to lift up to fifty
pounds. Under federal regulations, “light work” is classified as
lifting no more than 20 pounds at a time, while “medium work”
is listed as involving lifting up to 50 pounds maximum. 20
C.F.R. § 416.967.
No. 07-1520                                                  5

work still did not mean that it had been found that there
was an occupation she could hold that would comport
with her “training, education and experience,” as required
by the Plan documents. Pakovich then asked that the
district court reinstate her benefits. The district court
denied this motion, stating that Pakovich was now pro-
ceeding with a new argument not fully presented origi-
nally, and explaining that the record indicated that
Pakovich had the “training, education and experience” to
perform sedentary work. This appeal followed.


                       II. Discussion
  Pakovich appeals the district court’s finding that she
was not disabled from all occupations, as required by the
Plan in order to receive disability benefits beyond 24
months. As a preliminary matter, the parties dispute the
proper standard of review concerning this issue. Pakovich
asserts that the standard should be that for a motion for
summary judgment, while Broadspire claims that the
standard of review for judgment on the record under
FED. R. CIV. P. 52 controls. This dispute stems from the
procedural posture below—Broadspire initially filed a
motion for summary judgment, which Pakovich responded
to with her own motion for judgment under Rule 52. The
district court made clear, however, that it would “decide
this matter on the pending cross motions pursuant to
Rule 52 for judgment on the Administrative Record.”
Accordingly, because we are reviewing the district
court’s judgment on a Rule 52 motion, we review any
findings of fact or fact-law application for clear error. Sehie
v. City of Aurora, 432 F.3d 749, 751 (7th Cir. 2005). The
additional deference shown by this Court when re-
viewing the district court’s factual findings under Rule 52,
6                                             No. 07-1520

however, has no bearing on this particular case, since our
decision rests purely on legal conclusions, which we
review de novo. Id.; compare with Reich v. Ladish Co., 306
F.3d 519, 522 (7th Cir. 2002) (“We review the district
court’s grant of summary judgment de novo.”).
  The focus of Pakovich’s appeal is on her contention that
ERISA requires plans to provide beneficiaries with the
specific reason for denying benefit coverage, and that
because the Plan itself did not provide a reason why
she was not entitled to benefits under the “any occupa-
tion” standard, the district court erred in finding for
Broadspire on this issue. Broadspire, however, claims
that Pakovich waived this issue below. Although the
district court, when addressing this claim as part of
Pakovich’s Rule 59(e) motion, also apparently viewed
this argument as waived, we do not find this to be the
case. Pakovich, in her Rule 52 motion and response to
Broadspire’s motion for summary judgment, stated that
she was also entitled to her “any occupation” benefits
because ERISA required that the Plan give all the rea-
sons for her denial, and she was only given the reason
for denial under the “own occupation” standard. Al-
though Pakovich developed this argument more fully in
her Rule 59(e) motion, contrary to the district court’s
waiver statement in its order on that motion, Pakovich’s
argument was sufficiently developed in her original
motion that the district court felt compelled to address
the claim (albeit in a footnote) in its Rule 52 order.
  We now turn to the substance of Pakovich’s claim. Her
argument rests upon ERISA’s requirement that every
plan must “provide adequate notice in writing to any
participant or beneficiary whose claim for benefits under
the plan has been denied, setting forth the specific rea-
No. 07-1520                                              7

sons for such denial.” 29 U.S.C. § 1133(a); see 29 C.F.R.
§ 2560.503-1(g) (accompanying federal regulations); see
also Schneider v. Sentry Group Long Term Disability Plan,
422 F.3d 621, 627-28 (7th Cir. 2005) (discussing these
statutory and regulatory requirements). Pakovich thus
contends that in order for her disability benefits to be
denied beyond the 24 month mark under the “any occupa-
tion” standard, it was necessary for Broadspire to pro-
vide specific reasons why she was not deemed to be
“prevented from performing the Essential Functions of any
Gainful Occupation that [her] training, education and
experience would allow [her] to perform,” something
which indisputably did not occur.
   Broadspire argues that the rule contemplated by
Pakovich is unworkable, since it would require plans
denying benefits under an “own occupation” standard
to also expend their resources evaluating participants
under the “any occupation” standard, solely in anticipa-
tion of a possible reversal on the “own occupation” issue
on appeal. According to Broadspire, such a rule would
inappropriately require it to make a determination that
had not yet ripened for consideration, since the rule
would mandate that plans make determinations under
the “any occupation” standard prior to that standard
first being triggered by 24 months of disability under
the “own occupation” standard.
  We agree with Broadspire that it is unnecessary for plans
to hedge their bets on a possible reversal on appeal by
requiring that, after a plan has already found that an
employee does not qualify for disability benefits under
the “own occupation” standard, it also must determine
whether the employee is disabled from “any occupation.”
Requiring this further analysis would be impractical and
8                                                   No. 07-1520

redundant. Here, for example, Broadspire had already
determined, albeit erroneously, that Pakovich was able
to perform the essential functions of her own occupation.
This finding, in and of itself, necessarily means that
Broadspire had already concluded that Pakovich was
not “prevented from performing the Essential Functions
of any Gainful Occupation that [her] training, education
and experience would allow [her] to perform,” and thus
would not qualify for disability benefits under the “any
occupation” standard either. Any finding to the con-
trary on Broadspire’s part at that stage of the proceedings
would have been internally inconsistent.
  While Broadspire was not required to evaluate
Pakovich’s eligibility under the “any occupation” standard
contemporaneously with its determination that she was
not disabled from working her “own occupation,” such a
determination became necessary after the district court
found that Broadspire erred in denying Pakovich coverage
under the “own occupation” standard. At issue, then, is
whether the district court properly took it upon itself
to make this determination, or whether Broadspire
should have had the first attempt at the matter.2 As the


2
  Broadspire argues that judicial estoppel prevents Pakovich
from arguing that it was improper for the district court to
decide the “any occupation” issue when Pakovich had earlier
sought that the district court grant it disability under the “any
occupation” standard. Judicial estoppel, however, does not
apply here. The doctrine of judicial estoppel provides that
“when a party prevails on one legal or factual ground in a
lawsuit, that party cannot later repudiate that ground in
subsequent litigation based on the underlying facts.” Urbania v.
Cent. States, Se. & Sw. Areas Pension Fund, 421 F.3d 580, 589 (7th
                                                    (continued...)
No. 07-1520                                                    9

district court made clear, and the parties do not dispute
on appeal, the Plan gave the Administrator discretionary
authority, and thus its decisions were only to be reviewed
by the district court under an arbitrary and capricious
standard. See Herzberger v. Standard Ins. Co., 205 F.3d 327,
329 (7th Cir. 2000). Broadspire argues, however, that
since it passed on the opportunity to evaluate Pakovich’s
disability eligibility under the “any occupation” standard
in the spring and summer of 2004, it was then proper
for the district court to make that determination de novo.
Broadspire acknowledges that this Court has not directly
addressed this issue, but contends that its position is
supported by other Circuits’ decisions. See Gatti v. Reliance
Standard Life Insurance Co., 415 F.3d 978 (9th Cir. 2005); see
also Gilbertson v. Allied Signal, Inc., 328 F.3d 625 (10th Cir.
2003); see also Seman v. FMC Corp. Retirement Plan for
Hourly Employees, 334 F.3d 728 (8th Cir. 2003); see also
Gritzer v. CBS, Inc., 275 F.3d 291 (3rd Cir. 2002). This,
however, is not the case.
  The cases cited by Broadspire address an issue distinct
from that found in this case—the proper standard of



2
   (...continued)
Cir. 2005) (emphasis added). Thus, one of the requirements for
judicial estoppel to apply is that “the party to be estopped must
have prevailed upon the first court to adopt the position.” Id.
This did not occur here. Pakovich initially argued that she
should be granted disability benefits under the “any occupa-
tion” standard because the Plan failed to provide any reason
why she should be denied those benefits. The district court
plainly rejected that argument in its order on Pakovich’s Rule
52 motion. Accordingly, Pakovich did not prevail on this issue
in the first instance and judicial estoppel is thus inapplicable.
10                                               No. 07-1520

review to be given to claims “deemed denied” by the
Plan’s administrative appeals board. Federal ERISA
regulations previously provided that, after an initial
benefits determination had been made by the plan admin-
istrator, an internal review could be requested by the
beneficiary, in which case, if a decision was not issued
within 120 days, the claim would be “deemed denied.” See
29 C.F.R. § 2560.503-1(h) (1999). The issue that arose in
many Circuits was what standard of review the federal
courts were to apply to these “deemed denied” claims,
given that the plans had discretionary authority and
thus, if the plan had issued a timely denial, its decision
would have only been subject to arbitrary and capricious
review. Courts split on this issue, with the majority find-
ing that in such circumstances de novo review was ap-
propriate, see Nichols v. Prudential Ins. Co. of Am., 406 F.3d
98, 109 (2nd Cir. 2005) (applying de novo review); see also
Gritzer, 275 F.3d at 296 (same); Gilbertson, 328 F.3d at 632
(same), while others held that deferential review still
applies. See Southern Farm Bureau Life Ins. Co. v. Moore, 993
F.2d 98, 101 (5th Cir. 1993) (applying deferential stand-
ard of review); see also Gatti, 415 F.3d at 982 (failure to
comply with 29 C.F.R. § 2560.503-1(h) (1999) does not alter
standard of review). In all those cases, however, the plan
administrator made an initial determination to deny
benefits, something which did not happen in this case
under the “any occupation” disability standard. The
question in those cases, then, was whether deference
was still owed to the plan when, on review, it had failed
to analyze the appeal before it, and instead let the issue
lapse. In other words, was deference owed to the plan
when it had failed to take a fulsome bite of the apple
that was before it? Here, however, the “any occupation”
issue did not ripen into an “apple” ready to be bitten until
No. 07-1520                                              11

the district court rendered a disability determination under
the “own occupation” standard. Thus, not only had the
Plan’s review board failed to address the issue, but the
issue was never properly put before the Plan Admin-
istrator.
  An Eighth Circuit opinion is instructive in how to
address the situation in this case. In Seman, our sister
Circuit crafted a rule that distinguishes the case before
this Court from those involving a “deemed denied”
decision:
    When a plan administrator fails to render any deci-
    sion whatsoever on a participant’s application for
    benefits, it leaves the courts with nothing to review
    under any standard of review, so the matter must be
    sent back to the administrator for a decision. When
    a plan administrator denies a participant’s initial
    application for benefits and the review panel fails to
    act on the participant’s properly filed appeal, the
    administrator’s decision is subject to judicial review,
    and the standard of review will be de novo rather
    than for abuse of discretion if the review panel’s
    inaction raises serious doubts about the administrator’s
    decision.
334 F.3d at 733 (harmonizing McGarrah v. Hartford Life Ins.
Co., 234 F.3d 1026 (8th Cir. 2000) and Shelton v. Contigroup
Co., 285 F.3d 640 (8th Cir. 2002)). Here, the Plan Adminis-
trator did not issue any decision on Pakovich’s eligibility
for disability benefits under the “any occupation” stan-
dard, which, like the former example above, left the dis-
trict court with nothing to review. Although, based
upon scattered information in the record, the district
court was able to piece together its conclusion that
Pakovich was physically capable, and had the “training,
12                                                  No. 07-1520

education and experience” to perform sedentary work,
there was no decision by the Plan Administrator for the
Court to review and the record was not fully developed
on this issue. We therefore adopt the first part of the
Eighth Circuit’s rule for this Court, holding that when the
plan administrator has not issued a decision on a claim
for benefits that is now before the courts, the matter
must be sent back to the plan administrator to address
the issue in the first instance. Accordingly, we order
that the district court remand the case to the Plan Admin-
istrator to determine whether Pakovich was eligible for
disability benefits beyond July 17, 2004 under the Plan’s
“any occupation” standard.3


3
  Pakovich argues that instead, the proper remedy is for this
Court to order reinstatement of benefits, with Broadspire then
being permitted to revisit Pakovich’s eligibility for those
benefits. See Schneider v. Sentry Group Long Term Disability Plan,
422 F.3d 621, 629-30 (7th Cir. 2005). This Court bases its remedy
determination in ERISA cases “ ‘on what is required in each case
to fully remedy the defective procedures given the status quo
prior to the denial or termination’ of benefits.” Id. at 629
(quoting Hackett v. Xerox Corp. Long-Term Disability Income
Plan, 315 F.3d 771, 776 (7th Cir. 2003)). In this case, we have
distinguished between Pakovich’s eligibility for disability
benefits for the first 24 months under the “own occupation”
standard, and her continued receipt of benefits beyond that
point under the “any occupation” standard. Thus, the status
quo, prior to Broadspire’s termination of Pakovich’s benefits,
was only her receipt of 24 months’ disability under the “own
occupation” standard. See Quinn v. Blue Cross & Blue Shield Ass’n,
161 F.3d 472, 477-78 (7th Cir. 1998) (remand was the proper
remedy when the wrongful termination of benefits occurred
two days before benefits would have ceased under the terms
                                                    (continued...)
No. 07-1520                                                 13

                      III. Conclusion
  For the foregoing reasons, we VACATE the district court’s
grant of summary judgment for Broadspire and denial
of motion for judgment for Pakovich with respect to
Pakovich’s eligibility for disability benefits beyond 24
months under the Plan’s “any occupation” standard,
and order this issue REMANDED to the Plan Administrator
for determination. We also DENY Pakovich’s request for
reasonable attorney’s fees, costs and expenses incurred
since the district court’s Order on November 7, 2006.




3
   (...continued)
of the plan unless additional medical information was submit-
ted). Furthermore, reinstatement would undermine our decision
that the Plan Administrator must have the first opportunity to
decide the “any occupation” issue, since “[i]n essence, . . .
awarding retroactive benefits . . . [would amount to] the dis-
trict court decid[ing] that [Pakovich] was disabled, thus sub-
stituting its own judgment for that of [the Plan Administrator,
when] that was inappropriate in this case.” Id. at 478.


                    USCA-02-C-0072—7-24-08
