Gross v. Sun Life Assurance Co.

Citation: 880 F.3d 1Docket: 16-1958P

Court: Court of Appeals for the First Circuit; January 17, 2018; Federal Appellate Court

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Diahann L. Gross filed a lawsuit against Sun Life Assurance Company of Canada after her claim for disability benefits was denied. The United States Court of Appeals for the First Circuit had previously remanded the case, instructing Sun Life to reassess the claim based on medical evidence supporting Gross's total disability due to chronic pain. Despite the remand, Sun Life again denied the claim, prompting Gross to challenge the decision in federal court. The district court ruled in Gross's favor, stating that Sun Life's surveillance evidence did not undermine the medical evidence previously evaluated. 

On appeal, Sun Life contested the district court's interpretation of the administrative record, arguing that Gross failed to provide sufficient medical evidence to counter the surveillance findings. Sun Life also claimed the district court erred by not imposing sanctions on one of Gross's attorneys. In contrast, Gross cross-appealed, criticizing the district court's calculations regarding prejudgment interest and attorney's fees.

The appellate court affirmed the district court's decisions on the disability claim and sanctions but vacated the prejudgment interest award for further consideration of the interest rate. It affirmed the attorney's fee calculation except for two components that were ordered to be increased. The background included details of Gross's medical condition, with several professionals noting her debilitating symptoms and concluding she was unable to perform even sedentary work.

In late 2006, Egan reported that Gross had significant physical limitations, including an inability to sit or drive for extended periods, use her right hand, or lift over ten pounds. Other medical practitioners confirmed Egan's findings, noting abnormalities in Gross's right hand. A physical therapist, Chris Kaczmarek, conducted a functional capacity evaluation (FCE) in early 2007, identifying key limitations such as lack of functional use of her right arm, poor balance, and the need for assistance with stairs. Kaczmarek suspected Gross might have complex regional pain syndrome (CRPS) or fibromyalgia, concluding she could not maintain sustained work activity despite her cooperative demeanor during the evaluation.

Co-workers and employers provided additional evidence of Gross's determination to work despite her pain; her employer noted that she only stopped working upon receiving a doctor's order declaring her unfit. However, medical evidence did not uniformly support her disability claim; all diagnostic tests were negative, and some doctors suggested psychological factors might exacerbate her symptoms. Although advised to seek counseling, Gross did not pursue this treatment.

Surveillance over nine days showed limited activity from Gross, with notable exceptions including driving significant distances and engaging in physical tasks like bending and kneeling. Medical consultants, including Dr. James Sarni, indicated that her medical documentation did not strongly support a diagnosis of RSD or CRPS. After reviewing surveillance footage, Dr. Rukmaiah Bhupalam revised his initial opinion of Gross's disability status, which had previously classified her as totally disabled even for part-time sedentary work.

Gross exhibited the ability to function well and may return to her previous job, though a re-evaluation is recommended. Dr. William Hall, a non-examining consultant, found that surveillance videos contradicted her claims of pain and functional limitations. Dr. Alan Neuren, after reviewing her appeal, noted discrepancies between Gross's reported condition and her behavior in the videos, suggesting she may have exaggerated symptoms for secondary gain. The review acknowledged the documented history of her pain and corroborating testimonies from co-workers, leading to a conclusion that Gross had provided sufficient medical evidence for disability benefits. Despite this, concerns arose regarding inconsistencies between her claims and observed capabilities, particularly under surveillance. Dr. Bhupalam's suggestion for re-evaluation indicated that the surveillance did not entirely negate her claim. Further, it was unclear if the consultants were aware of circumstances surrounding her hospital visit during her mother's medical emergency, raising questions about Sun Life's investigation into her abilities. Additionally, there was no statement from Gross's doctor countering Sun Life's claim that surveillance indicated a greater capacity than reported by Gross. Consequently, the case was remanded for further examination of the surveillance evidence's significance in relation to Gross's claimed limitations and the credibility of her self-reported symptoms, especially regarding her right arm condition.

In the renewed administrative proceedings after remand, both Gross and Sun Life submitted additional medical opinions without new examinations of Gross. Sun Life's submissions included reports from neurologists Drs. David Ross and Rajat Gupta. Ross's nine-page report reviewed Gross's medical history, concluding that there was no medical evidence supporting functional impairment as of August 1, 2006, and noted inconsistencies between Gross's reported limitations and her observed activities during surveillance. Gupta's report also examined Gross's history and found no clinically supported functional impairments, questioning the diagnoses of Complex Regional Pain Syndrome (CRPS) or Reflex Sympathetic Dystrophy (RSD) based on symptoms that could be self-induced. He observed that Gross wore long sleeves, contrary to typical behavior of CRPS sufferers, and noted a psychological component to her condition. Gupta remarked that Gross's ability to move fluidly while attending to her mother during a medical emergency was inconsistent with her claimed impairments, though he acknowledged that extreme circumstances could temporarily enhance an individual's performance.

Sun Life also acquired a follow-up opinion from Dr. Neuren, who asserted that visiting her mother due to illness could not credibly result in a temporary resolution of Gross's condition, emphasizing that CRPS is not a part-time ailment. Gross submitted letters from pain management specialist Dr. James Murphy and physical therapist Chris Kaczmarek. Murphy concluded that surveillance evidence did not contradict the limitations placed on Gross and highlighted the variable nature of symptoms associated with CRPS and fibromyalgia. Kaczmarek's letter stated that, based on his review of Gross's records and the surveillance, her activities were consistent with his prior assessment that she could not engage in sedentary employment due to her limitations.

The district court, upon remand, evaluated whether the surveillance evidence undermined the panel’s previous conclusion supporting Gross's claim of total disability. It determined that to discredit the disability assessment, the videos needed to show activities that contradicted Gross's self-reported limitations, which they did not. The court found no evidence suggesting Gross exaggerated her symptoms and noted that only one examining professional, Bhupalam, disagreed with the disability diagnoses. However, his later opinion was discounted since he had initially agreed Gross was unable to work and recommended a follow-up evaluation, indicating the surveillance did not clearly contradict his initial assessment. Consequently, the court ordered Sun Life to pay Gross benefits retroactive to January 30, 2007, and established that the interest rate for her benefits recovery would align with 28 U.S.C. 1961. Additionally, Gross was awarded approximately $96,000 in attorney's fees due to her success in the prior appeal, under ERISA guidelines. The decision in Gross I shifted the review standard for disability claims from arbitrary-and-capricious to de novo, enhancing employee benefit entitlements. Both parties appealed the district court's judgment; Sun Life argued Gross failed to prove total disability and sought sanctions against one of her attorneys, while Gross contended the court abused its discretion regarding the prejudgment interest rate and attorney's fees awarded for pre-remand proceedings.

Sun Life's denial of benefits to Gross is reviewed under a de novo standard, as established in Gross I. Although there is debate regarding the standard of appellate review for ERISA benefit-denial cases, both parties accept de novo review, which ultimately favors Sun Life but still upholds the district court's judgment. Sun Life argues that the supplemented record on remand reinforces its conclusion that Gross did not demonstrate total disability, specifically highlighting gaps in evidence related to video surveillance and Gross's self-reported symptoms. However, the analysis reveals that Sun Life overstates its post-remand evidence and overlooks prior findings that Gross's medical evidence was adequate for her claim. The sustained nature of Gross's complaints, their credibility to examining medical practitioners, and objective symptoms indicative of Reflex Sympathetic Dystrophy (RSD) support her disability claim. The remand aimed to assess how surveillance evidence might impact the established medical evidence. Ultimately, the district court found that Sun Life failed to demonstrate that the surveillance evidence significantly undermined Gross's medical record, which substantiated her claim of total disability. Sun Life's evaluations relied on existing records and surveillance without re-evaluating Gross, primarily restating known inconsistencies between her reported symptoms and observed activities, which were interpreted as not conclusively disproving her functional impairment.

The medical evidence presented during Gross's first appeal supported her self-reported limitations, which indicated entitlement to benefits, pending further review of surveillance evidence. Egan's 2006 assessments defined Gross's functional limits as sitting for two hours, driving for ninety minutes, standing or walking for an hour, and lifting ten pounds. Activities observed during a hospital visit in early 2007 were consistent with these limits, suggesting that Gross’s actions may have been achievable due to pain medication amidst a family crisis. Gross indicated improved functioning after changing her medication and reported daily use of multiple medications prior to her hospital visit.

Sun Life was required to demonstrate that the surveillance footage contradicted Gross's medical record of disability. However, their experts, Ross and Gupta, inadequately considered the broader context of the surveillance, particularly the consistent evaluations from medical professionals affirming Gross's pain complaints. The surveillance spanned over nine days, during which Gross displayed limited activity, notably limping during brief outings in November 2006 and remaining mostly inactive on several days in January 2007. Despite some observations of activity, such as driving and brief errands, these were not representative of her overall condition.

Ross and Gupta appeared to prioritize the more active moments captured in surveillance, overlooking Gross's extensive periods of inactivity and her established history of credible pain. Additionally, Sun Life's counsel admitted a lack of evidence that Ross was informed about the circumstances surrounding Gross’s February 21 hospital visit. Gupta noted Gross's use of her right hand during surveillance days, but these brief actions were deemed insignificant compared to her overall inactivity and limitations during the observed period.

Fluctuations in Gross's physical abilities due to factors like fatigue and medication timing are expected, making any assessments that ignore these variations misleading. An investigator observed Gross limping on a day referenced by Gupta, who questioned the CRPS diagnosis based on the normal functioning displayed in videos. Neuren indicated CRPS is not a 'part-time condition,' but did not clarify the temporary improvements Gross might experience from her medications. Gupta acknowledged that extreme circumstances could enable someone to perform activities typically deemed unachievable. Regardless of the CRPS diagnosis, Gross suffers from other pain-related conditions like fibromyalgia and severe migraines, which can also see temporary relief through medication. Sun Life argued that inconsistencies in Gross's complaints and surveillance footage suggested she was exaggerating or self-inducing symptoms. However, all physicians who examined Gross found her credible, and the speculation from Neuren and Gupta failed to account for the consistent observations of multiple observers, including co-workers. Bhupalam's addendum, which downplayed his initial disability finding, was based solely on video evidence without reconciling it with his in-person evaluation, leading him to suggest a reevaluation. Despite the credibility of Gross’s symptoms acknowledged by medical practitioners and co-workers, Sun Life relied on non-examining physicians, asserting they are not required to favor treating physicians' opinions. However, the relevant issue is that disability determinations based on subjective symptoms benefit from the insights of those who have conducted in-person evaluations.

Examining doctors' opinions are not inherently more credible than those based solely on records review, as established in prior cases (Orndorf v. Paul Revere Life Ins. Co. and Richards v. Hewlett-Packard Corp.). However, when a claimant's credibility is central to the disability assessment, especially if an independent medical examiner has credited the claimant's in-person symptom presentation, the opinions of examining doctors may carry more weight. Sun Life's post-remand submissions lack substantive insight, failing to contextualize significant discrepancies between the claimant's reported limitations and actual observations. Gross's two post-remand reports lacked new examinations and were largely summary, with one report from a pain specialist making general statements about the unreliability of surveillance without addressing specific discrepancies. Another submission noted that surveillance activities were consistent with prior findings of the claimant's disability but lacked explanation. The district court misidentified one physician as a treating doctor, but this error did not affect the evidence review. Although Gross's supplemental materials addressed previous concerns, they would have been more persuasive with elaboration from the practitioners regarding the surveillance findings. Gross did not supply a rebuttal from her doctor concerning Sun Life's claims about her activity levels, and while it was speculated that this omission was detrimental to her case, such inference was deemed speculative. The limitations identified by Gross's doctor were consistent with the activities observed in surveillance. Overall, the remand process yielded minimal new understanding regarding the significance of the surveillance activities in relation to Gross's claimed disabilities.

Murphy's assessment of Gross's medical condition is deemed more credible than opposing views, as her most severe symptoms are not consistently evident. Murphy indicates that various factors can influence symptom severity, a position reinforced by surveillance reports showing significant fluctuations in Gross's capabilities, particularly during times when there was no incentive to feign symptoms. Notably, the days following her visit to her hospitalized mother and subsequent medical appointment show her physical decline, including using a wheelchair and assistance from her husband.

The surveillance data suggest that Sun Life may have overemphasized the few instances where Gross appeared less disabled, thereby misrepresenting her overall capacity for full-time work. The day after her medical examination, she exhibited no activity, reinforcing the notion that the observed limitations are not indicative of her maximum capabilities but rather necessary precautions to manage her serious medical condition.

Furthermore, Gross's pain conditions—potentially fibromyalgia, RSD, or CRPS—underscore the importance of credibility in evaluations. While Neuren and Gupta expressed skepticism about Gross's ability to engage in normal activities, Gupta acknowledged that assessing impairment based on subjective complaints requires establishing credibility, which he found lacking. However, the document argues against this view, asserting that Gross's credibility is supported by the record, despite some indications of exaggeration or selective reporting of her experiences.

In fall 2006, Gross informed Egan that she could not use her right hand, and Kaczmarek reported a lack of functional use in her right arm. By January 2007, Gross communicated to Kaczmarek her limited activity tolerance and frequent falls while walking. In November 2007, Egan observed that Gross struggled to raise her arm. Despite occasional functionality, Gross's medical records indicate chronic severe pain significantly limiting her mobility and use of her right arm, affecting her daily activities and supported by credible assessments from multiple healthcare providers. The medical evidence aligns with a finding of total disability, leading to the affirmation of the district court's decision granting Gross disability benefits from Sun Life.

Sun Life contended that Gross's disability findings were flawed, arguing that some physicians attributed her symptoms to emotional factors and noted her failure to seek counseling. While counseling is recommended for managing CRPS symptoms, the potential benefit of such treatment does not imply that Gross’s condition would improve sufficiently for her to work full-time.

In a separate matter, Sun Life alleged that the district court erred by not sanctioning attorney Michael Grabhorn for interfering with Sun Life's investigation into Gross’s claim. In November 2014, Grabhorn requested Bhupalam to revise a previous addendum to reflect Gross's total disability, suggesting Bhupalam had not been fully informed of Gross's medical history or the context of observations from surveillance videos. Grabhorn's communication included a report from Kaczmarek but received no response from Bhupalam, leading to further inquiries in early 2015.

An attorney reiterated a mistaken claim that Dr. Bhupalam had not received all of Mrs. Gross's medical records or the Functional Capacity Evaluation (FCE), despite these being included in a prior correspondence. The attorney requested that Bhupalam amend his medical opinion to reflect that Mrs. Gross's physical limitations prevented her from full-time employment. Specifically, the attorney urged Bhupalam to retract an April 2007 addendum that altered his assessment of Gross's work capability based on video surveillance. A threat of legal action was made against Bhupalam if he did not revise his opinion, accompanied by a draft complaint alleging negligence, defamation, and fraud, and seeking punitive damages.

Subsequent to these communications, Sun Life was informed by Bhupalam's attorney that he would not respond to Sun Life's request for further comments about Gross's condition, expressing his desire to avoid involvement in the ongoing litigation. Sun Life later argued on appeal that the district court should have addressed the attorney's "unacceptable" actions, asserting that the threat of legal action hindered Bhupalam's response, which would have confirmed that Gross was capable of sedentary employment. Sun Life highlighted the need for sanctions against the attorney, referencing a previous case where similar conduct resulted in sanctions for making threats intended to silence an opposing witness. Although Sun Life noted Grabhorn's troubling pattern of behavior and pointed to sanctions he faced in other cases, it did not provide the district court with guidance on how to assess the sanctions or the authority under which they might be imposed. The potential basis for such authority was presumably the federal court's inherent power to discipline attorneys.

Courts have the authority to impose sanctions, including punitive ones, to discipline attorneys and may refer to federal rules or statutes for guidance. The Supreme Court has emphasized that the exercise of inherent powers for sanctions should be approached with restraint and discretion due to their significant impact. While harm to an opposing party is not a prerequisite for imposing sanctions, it can influence the court's decision on whether to impose them. In this case, Sun Life has not shown that it was disadvantaged by Grabhorn's actions, as the necessary information was ultimately included in the record. Sun Life's complaints about delays in obtaining comments from Bhupalam were found to lack merit, as the relevant letters and responses were accessible to the district court. Although Grabhorn's behavior was criticized, the district court's choice not to impose sanctions was upheld. Further complicating the matter, Grabhorn's appellate brief claimed that a threatening letter was prompted by unsuccessful attempts to acquire medical records; however, the letters did not reference such requests. Sun Life's timing in seeking follow-up opinions was also questioned, as they delayed their inquiries until late in the remand process, despite earlier denials of Gross's claim.

The district court's discretion regarding sanctions is upheld, but Grabhorn's threatening litigation against Bhupalam, along with his misrepresentations during the appeal, are criticized. Consequently, the court mandates that the Clerk of Court send a copy of this opinion to the Kentucky Office of Bar Counsel for potential action. In Gross's cross-appeal, she contends that the district court misused its discretion by awarding her prejudgment interest at the federal statutory rate, as outlined in 28 U.S.C. § 1961(a). While ERISA does not explicitly allow for prejudgment interest, its award is within the district court's discretion, informed by equitable considerations. The court typically considers two main factors: first, to ensure the plan participant is made whole for the period funds were withheld, and second, to prevent unjust enrichment of the wrongdoer. Courts aim to ensure the interest compensates for the lost value of money during the withholding period and does not incentivize delay in payment. It is emphasized that allowing the Fund to retain interest on wrongfully withheld funds constitutes unjust enrichment. However, the interest rate should not be punitive. The court supports using the rate specified in § 1961(a) as it aligns with these principles, although the specific issues in prior cases like Cottrill and Pacific Ins. Co. did not precisely mirror the current situation.

In Pacific Insurance Co., the court addressed whether the employer or its insurer was responsible for paying interest on delayed contributions to an employee profit-sharing plan. The interest in question was characterized as prejudgment interest that could have been awarded to employees had they pursued legal action for unpaid benefits. The court emphasized the importance of uniformity in ERISA cases, particularly since the plan's funds were initially invested in Treasury bills, while also noting that courts possess broad discretion in selecting interest rates and may reference state law for guidance. Various benchmarks have been employed to ensure ERISA plaintiffs receive full compensation without unjust enrichment, including using interest rates specified in agreements or applying the higher of statutory rates or actual returns during the prejudgment period. The selection of an appropriate interest rate can be complex due to fluctuations in statutory rates and the actual cost of money. For instance, in Schumacher, the Sixth Circuit criticized the use of a low federal statutory rate, directing courts to consider broader economic factors, such as inflation and borrowing costs, to achieve a fair rate. Conversely, in Cottrill, the court preferred the 1961(a) rate over a higher state rate when the federal rate was comparatively higher. Ultimately, when awarding prejudgment interest, courts must identify a fair percentage that aligns with both full compensation and ERISA’s objectives. In the case of Gross v. Sun Life Assurance Co., Gross sought prejudgment interest reflective of the actual interest earned on her withheld benefits or based on her borrowing rate, claiming that interest should accrue from January 2007, when she became eligible for benefits.

The district court awarded prejudgment interest from the date Gross filed her complaint, following the method outlined in 28 U.S.C. § 1961, without providing an explanation. Gross contends this decision was an abuse of discretion, arguing the federal rate was insufficient to fully compensate her and unfairly enriched Sun Life. She advocates for using either Massachusetts's higher interest rate for contractual obligations or Sun Life's earnings percentage, which she claims exceeded 12% during part of the relevant period. In contrast, the federal rate was only 0.37% at the time of filing and 0.51% at the judgment in July 2016. Although the court has discretion in setting the interest rate, the lack of explanation for its choice prevents proper evaluation of its reasoning. The court's mechanical adoption of the federal rate, particularly in light of the nearly eleven-year delay in benefit payments to Gross, raises concerns of discretion abuse. Consequently, the prejudgment interest award is vacated and remanded for the district court to reassess or explain its rate selection. Additionally, Gross has requested attorney's fees under ERISA, prompting the court to seek supplemental briefs due to uncertainties regarding her entitlement to such fees.

A split panel in Gross II determined that a fee award was justified due to Gross's success in Gross I, which established that the "arbitrary and capricious" standard of review should no longer apply to certain benefits decisions. The majority concluded that Gross had met the success threshold for fee eligibility despite not being granted disability benefits. The panel ruled her fee request was ripe for consideration, as a remand for benefits reconsideration and a less deferential review standard indicated her eligibility for fees. The panel did not conduct the traditional lodestar analysis to calculate fees, instead directing the district court to perform this evaluation, which involves assessing attorney hours and determining reasonable hourly rates, subsequently multiplying these to arrive at a lodestar amount, which may be adjusted based on other relevant factors.

The district court ordered Sun Life to pay Gross $96,243.50 for counsel fees related to her initial appeal and the post-judgment fee petition. Gross contended that this award was excessively low, challenging specific reductions, including a lowered hourly rate for one attorney, disallowed fees for discovery motions, and cuts to the time permitted for her prior appeal and fees petition preparation. The review of the district court's fee decision is based on an abuse of discretion standard, which is highly deferential. The district court provided a thorough opinion with a detailed analysis of billing records, justifying its reductions. The appellate review found no abuse of discretion regarding the hourly rate for one of her attorneys but acknowledged the need for two adjustments to the fee award.

Grabhorn and Feigenbaum, both ERISA lawyers, sought fees at a rate of $500 per hour, which the district court deemed reasonable for Feigenbaum due to Boston's high legal fees, but awarded Grabhorn $375 per hour based on his Kentucky rate. On appeal, Gross argued both should be compensated based on Boston's prevailing rates. The court supported the principle that reasonable hourly rates should reference the local rates of the court rather than the lawyer’s home region. Although a court may decide that the prevailing local rate isn't appropriate in certain situations, such as when an attorney is recruited from outside the local area, it still has discretion to award rates in between or at the attorney’s standard rate.

The district court’s choice to compensate Grabhorn at a lower rate than Feigenbaum was upheld, as it recognized the option to use the Boston rate but chose to apply the Kentucky rate instead, finding no reason to overturn that discretion. In the fee petition calculation, the district court reduced Gross's requested fees from 67.3 hours to 22.4 hours, asserting that an ERISA fee petition should be straightforward and could reasonably be completed in a third of the billed time. While the court’s view on the simplicity of standard ERISA fee petitions was acknowledged, it noted that specific circumstances could affect the complexity and, thus, the fee awarded for the petition in this case. The court had previously requested additional briefs to address the appropriate fees for proceedings leading to its earlier decision.

The panel found that the district court erred in treating Gross's fee petition as typical, leading to an abuse of discretion when it determined only 22.4 hours were reasonably expended. Upon reviewing the billing records, the panel concluded that the 67.3 hours billed (37.6 by one attorney, 27.7 by another, plus two paralegal hours) accurately reflected the complexity of the legal issues and the phases of the fee proceedings. The district court is instructed to adjust its calculation to include the full 67.3 hours.

Additionally, the panel criticized the district court's 50% reduction in attorney hours for summary judgment work. The court had reduced hours partly due to unsuccessful arguments, despite Gross primarily challenging Sun Life’s benefits decision, which she ultimately won. Although the panel did not find abuse of discretion in deeming the total 105.5 attorney hours and 5.5 paralegal hours excessive, it determined that a 25% downward adjustment was warranted to reflect Gross's success and the district court's acceptable view of excessiveness.

Lastly, the panel addressed the 33% reduction in hours for Gross's first appeal, which the district court justified by noting the mixed results in her previous case. The panel agreed that the district court acted within its discretion, as Gross had not fully established her right to benefits and had encountered setbacks, thus justifying a reduction in allowable hours for the appeals work.

The district court's decisions regarding Sun Life's appeal are upheld, affirming the award of disability benefits to Gross and maintaining the judgment against the appeal. The appeal raised three issues: the applicability of the ERISA safe harbor exception, the governing standard of review for Gross's ERISA claim, and whether she was entitled to relief under that standard. The court ruled that the safe harbor exception did not apply, determined the appropriate standard of review, and ultimately reversed and remanded the case for further consideration of Gross's entitlement to relief. Gross is eligible for additional attorney's fees due to her success in the post-remand phase, with her motion for fees being reactivated and potentially expanded to include appeal-related costs.

On Gross's cross-appeal, the court remanded the issue of prejudgment interest and partially vacated the district court's attorney's fee calculation, directing a recalculation that includes additional hours for attorney work on the fee petition and adjusts the fee for summary judgment motions. The opinion is affirmed in part, vacated in part, and remanded for further proceedings.

A concurring opinion emphasizes that Gross bore the burden of proof regarding her disability under Sun Life's policy. It notes that only one doctor, Bhupalam, initially deemed her disabled but reversed his opinion after reviewing video evidence that contradicted her claimed symptoms. The concurring judge expresses skepticism about Gross's ability to prove her disability, highlighting the absence of supporting opinions from her treating physicians after viewing the video. The judge acknowledges the majority's interpretation of the previous case as potentially shifting the burden of proof to Sun Life and concurs with their decision despite reservations.