Nancy Harrison v. Wells Fargo Bank, N.A. , 773 F.3d 15 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2379
NANCY A. HARRISON,
Plaintiff - Appellant,
v.
WELLS FARGO BANK, N.A.; WELLS FARGO AND COMPANY DISABILITY
PLAN,
Defendants - Appellees.
-------------------------------------
SECRETARY OF LABOR,
Amicus Supporting Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Senior
District Judge. (3:13-cv-00279-JRS)
Argued: October 28, 2014 Decided: December 5, 2014
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Reversed and remanded by published opinion. Judge Wilkinson
wrote the opinion, in which Judge King and Senior Judge Hamilton
joined.
ARGUED: Richard F. Hawkins, III, THE HAWKINS LAW FIRM, PC,
Richmond, Virginia, for Appellant. Dana Lewis Rust,
MCGUIREWOODS LLP, Richmond, Virginia, for Appellees. Gail A.
Perry, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for
Amicus Supporting Appellant. ON BRIEF: Summer L. Speight,
MCGUIREWOODS LLP, Richmond, Virginia, for Appellees. M.
Patricia Smith, Solicitor of Labor, G. William Scott, Acting
Associate Solicitor for Plan Benefits Security, Elizabeth
Hopkins, Counsel for Appellate and Special Litigation, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus
Supporting Appellant.
_______________
2
WILKINSON, Circuit Judge:
Nancy Harrison brought suit against her employer Wells
Fargo, arguing that the company improperly terminated her short-
term disability benefits while she was undergoing a series of
treatments for thyroid disease. The district court upheld Wells
Fargo’s decision, finding the plan administrator did not abuse
its discretion in denying Harrison’s claim. However, because
Wells Fargo failed to consider readily available material
evidence of which it was put on notice, the review process
failed to conform to the directives of ERISA and the Plan’s own
terms. We thus reverse and remand to the district court with
directions to return the case to Wells Fargo for a full and fair
review of Harrison’s claims.
I.
A.
Wells Fargo hired Nancy Harrison as an Online Customer
Service Representative in 2008. In this role, she was
responsible for assisting customers with a wide range of
inquiries related to online financial products and services. Her
work was primarily sedentary in nature but required her to keep
up in a “fast paced environment” and “adequately maintain
service levels” for customers. J.A. 203. She was also required
to work ten hours a day for four consecutive days while sitting
for 97% of that time.
3
In May 2011, Harrison’s doctor discovered she had an
enlarged thyroid and a large mass extending into her chest that
was causing her to suffer chest pain and tracheal compression.
Harrison underwent a bronchoscopy on June 9, 2011, and a
thyroidectomy on August 17, 2011. She was unable to work and
received short-term disability benefits under a plan offered by
her employer. As part of her claim, she provided documentation
and contact information for her primary care doctor, Dr. Mark
Petrizzi, her Ear, Nose & Throat doctor, Dr. Daniel Van
Himbergen, and her thoracic surgeon, Dr. Darius Hollings.
Although she needed a second surgical procedure to remove the
remaining mass in her chest, her benefits were terminated on
September 10, 2011, just three weeks after her thyroidectomy.
Wells Fargo adjudged this to be the normal period of recovery
from this sort of operation.
While Harrison was facing her surgeries, her husband died
unexpectedly, triggering a recurrence of depression and post-
traumatic stress disorder (PTSD) related to the death of her
mother and her children in a house fire in 2004. Her primary
care physician, Dr. Petrizzi, doubled her dosage of anti-
depressants and referred her to a psychologist, Dr. R. Glenn,
for additional treatment. After her thyroidectomy, Harrison also
reported pain in her right shoulder for which Dr. Petrizzi
prescribed home-based physical therapy.
4
Although the doctor was able to remove Harrison’s thyroid
during the August 17, 2011, procedure, it was a difficult
surgery and he was unable to remove the entire mass in her
chest. One week after the operation, Harrison notified Wells
Fargo that she was scheduled for another more serious procedure,
a median sternotomy, on October 31, 2011, where Dr. Hollings
would cut open her chest to remove the remaining tissue.
However, on September 10, 2011, Wells Fargo found that she had
fully recovered from the thyroidectomy, deemed her fit to return
to work, and discontinued her short-term disability benefits.
The parties do not dispute that Harrison was properly
granted benefits during the period from her bronchoscopy (June
9, 2011) through her arguable recovery from the thyroidectomy
(September 10, 2011) nor do they dispute that she would have
been eligible for benefits following the October 31st sternotomy
had she gone back to work in the interim. The only dispute is
whether Harrison was properly denied benefits from September 10,
2011, to October 31, 2011. *
*
Employees must return to work once Wells Fargo determines
they are no longer disabled in order to be eligible for future
benefits under the terms of the Plan. Because she did not return
to work after Wells Fargo found her sufficiently recovered on
September 10, 2011, Harrison was denied benefits for the October
31st surgery and subsequent recovery period. If benefits were
improperly denied for the disputed period between the surgical
procedures, the entire period from June 9, 2011, through her
recovery from the sternotomy may be considered a single period
(Continued)
5
B.
The Short-Term Disability (STD) Plan (“the Plan”), provided
by Wells Fargo to its employees, entitles employees to salary
replacement benefits where a “medically certified health
condition” renders an employee “unable to perform some or all of
[his or her] job duties for more than seven consecutive days.”
Id. at 477. The Plan defines a medically certified health
condition as a disabling injury or illness that is “documented
by clinical evidence as provided and certified by an approved
care provider . . . includ[ing] medical records, medical test
results, physical therapy notes, mental health records, and
prescription records.” Id. at 480. Such condition must also
“prevent [the employee] from performing the essential functions
of [his or her] own job as regularly scheduled.” Id.
The Plan is self-funded by Wells Fargo and Liberty Life
Assurance Company of Boston serves as the claims administrator.
After an employee submits a claim for disability benefits,
Liberty must notify the claimant of the decision either to
approve or deny benefits. At the time of a denial, Liberty must
include the reasons why the claim was denied and, if applicable,
any additional information that is needed. The Plan provides for
of disability and she may be eligible to recover benefits from
October 31, 2011, through mid-December 2011 as well.
6
a two-level appeals process. Employees who believe their claims
were improperly denied may file a first-level appeal with
Liberty. If Liberty denies this appeal, claimants may file a
second-level appeal directly with Wells Fargo. If Wells Fargo
denies the second-level appeal, that decision is considered
final and claimants may file suit under Section 502(a) of ERISA.
See J.A. 485-87; see also, 29 U.S.C. § 1132.
Following Liberty’s initial denial of benefits, Harrison,
acting pro se, sought a first-level appeal with Liberty, the
claims administrator. In her appeal, she noted that she
continued to have chest pain from her recent thyroid surgery and
had suffered emotional trauma from the death of her husband. Her
primary care physician, Dr. Petrizzi, provided additional
documentation to that effect. Harrison also noted that she had
an appointment to see Dr. Glenn, a psychologist, with regard to
her mental health condition and provided contact information for
Drs. Petrizzi, Hollings (her thoracic surgeon), and Glenn (her
psychologist). A nurse case manager reviewed her file, and on
November 28, 2011, Liberty upheld the denial of her claim.
Harrison, again acting pro se, filed a second-level appeal
with Wells Fargo under the terms of the Plan. She provided
documentation from Drs. Petrizzi and Hollings as well as a
detailed letter from her sister who was her primary caretaker
outlining her continuing pain, disability, and severe panic
7
attacks. Wells Fargo, as part of the second-level appeal, sought
two independent peer reviews -- one of Harrison’s physical
disability claims by Dr. Dan Gerstenblitt and another of her
psychological disability claim by Dr. A.E. Daniel.
Dr. Daniel contacted Dr. Petrizzi regarding Harrison’s
mental health, but did not contact Dr. Glenn despite being
referred to him by Dr. Petrizzi. In his review, Dr. Daniel
concluded that while there was evidence in the record to suggest
that the loss of her husband could have triggered PTSD caused by
the death of her mother and children, “[i]n the absence of
psychiatric/psychological records or telephone conference with
her psychologist, an opinion as to whether her psychiatric
status limited her functional capacity cannot be provided.” Id.
at 394. On May 4, 2012, Wells Fargo rendered a final decision,
upholding the denial decision.
Harrison brought suit under 29 U.S.C. § 1132 of the
Employee Retirement Income Security Act (ERISA) in the Eastern
District of Virginia arguing that Wells Fargo abused its
discretion in denying her short-term disability benefits. Wells
Fargo moved for summary judgment. The district court found there
was insufficient evidence of disability under the Plan to
conclude that Wells Fargo had abused its discretion in denying
Harrison’s claim. This appeal followed.
8
Harrison contends on appeal that Wells Fargo substantively
abused its discretion in rejecting her claim between her
surgical procedures, at a time when she continued to have pain
and other complications from the mass in her chest. See
Appellant’s Br. at 31. In addition, she argues that Wells
Fargo’s denial was procedurally flawed because the plan
administrator neither considered records from Dr. Glenn nor
specifically explained to her that such records were necessary
to perfect her claim. Because we find that Wells Fargo did not
meet the “full and fair review” requirements imposed by ERISA in
29 U.S.C. § 1133, we reverse and remand to the district court
with instructions to return the case to Wells Fargo.
II.
We review the district court’s grant of summary judgment to
Wells Fargo de novo. See Williams v. Metro Life Ins. Co., 609
F.3d 622, 629 (4th Cir. 2010). We apply the same standards
employed by the district court when considering the plan
administrator’s decision. Id. Because the Plan language gives
the plan administrator “full discretionary authority,” J.A. 504,
we consider whether Wells Fargo abused its discretion in denying
Harrison’s claim, see Evans v. Eaton Corp. Long Term Disability
Plan, 514 F.3d 315, 321 (4th Cir. 2008).
This circuit has identified “eight nonexclusive factors for
courts to consider in evaluating whether a plan administrator
9
abused its discretion.” Helton v. A.T. & T. Inc., 709 F.3d 343,
353 (4th Cir. 2013). Those factors, enunciated in Booth v. Wal-
Mart Stores, Inc. Assocs. Health and Welfare Plan are:
(1) the language of the plan; (2) the purposes and
goals of the plan; (3) the adequacy of the materials
considered to make the decision and the degree to
which they support it; (4) whether the fiduciary’s
interpretation was consistent with other provisions in
the plan and with earlier interpretations of the plan;
(5) whether the decisionmaking process was reasoned
and principled; (6) whether the decision was
consistent with the procedural and substantive
requirements of ERISA; (7) any external standard
relevant to the exercise of discretion; and (8) the
fiduciary’s motives and any conflict of interest it
may have.
201 F.3d 335, 342-43 (4th Cir. 2000). In considering these
factors, we hold that Wells Fargo failed to meet its statutory
and Plan obligations to Harrison as a beneficiary. By failing to
contact Dr. Glenn when it was on notice that Harrison was
seeking treatment for mental health conditions and when it had
his contact information, as well as properly signed release
forms from Harrison, the plan administrator chose to remain
willfully blind to readily available information that may well
have confirmed Harrison’s theory of disability.
III.
The Employee Retirement Income Security Act of 1974 (ERISA)
governs the short-term benefits plan offered by Wells Fargo. In
29 U.S.C. § 1104 Congress charged plan administrators to act as
fiduciaries for purposes of “providing benefits to participants
10
and their beneficiaries” and for “defraying reasonable expenses
of administering the plan.” 29 U.S.C. § 1104(a)(1)(A). Plan
administrators like Wells Fargo thus have a fiduciary duty to
beneficiaries like Harrison. Id. As part of this duty, ERISA
requires a balance between “the obligation to guard the assets
of the trust from improper claims, as well as the obligation to
pay legitimate claims.” LeFebre v. Westinghouse Elec. Corp., 747
F.2d 197, 207 (4th Cir. 1984) overruled by implication on other
grounds by Black & Decker Disability Plan v. Nord, 538 U.S. 822
(2003); see also Evans, 514 F.3d at 326 (“For more than thirty
years, then, courts have balanced the need to ensure that
individual claimants get the benefits to which they are entitled
with the need to protect employees . . . from a contraction in
the total pool of benefits available.”).
A.
However, Congress did not leave the process of balancing
these interests solely to the judgment of plan administrators.
Rather, ERISA imposes on trustees a number of procedural
requirements relevant to the denial of claims. For example,
section 1133 requires plan administrators, where any claim for
benefits under the plan is denied, to set forth “the specific
reasons for such denial.” 29 U.S.C. § 1133(1). In addition,
ERISA requires that plans provide claimants with a “reasonable
opportunity . . . for a full and fair review by the appropriate
11
named fiduciary of the decision denying the claim.” 29 U.S.C.
§ 1133(2).
While the primary responsibility for providing medical
proof of disability undoubtedly rests with the claimant, a plan
administrator cannot be willfully blind to medical information
that may confirm the beneficiary’s theory of disability where
there is no evidence in the record to refute that theory. See
Gaither v. Aetna Life Ins. Co., 394 F.3d 792, 807 (10th Cir.
2004). ERISA does not envision that the claims process will
mirror an adversarial proceeding where “the [claimant] bear[s]
almost all of the responsibility for compiling the record, and
the [fiduciary] bears little or no responsibility to seek
clarification when the evidence suggests the possibility of a
legitimate claim.” Id. Rather, the law anticipates, where
necessary, some back and forth between administrator and
beneficiary.
An administrator is also “required to use a deliberate,
principled reasoning process and to support its decision with
substantial evidence.” McKoy v. Int’l Paper Co., 488 F.3d 221,
223 (4th Cir. 2007). A complete record is necessary to make a
reasoned decision, which must “rest on good evidence and sound
reasoning; and . . . result from a fair and searching process.”
Evans, 514 F.3d at 322-23. A searching process does not permit a
plan administrator to shut his eyes to the most evident and
12
accessible sources of information that might support a
successful claim. As the Tenth Circuit explained, “[a]n ERISA
fiduciary presented with a claim that a little more evidence may
prove valid should seek to get to the truth of the matter.”
Gaither, 394 F.3d at 808.
It is not asking too much that, in the course of a “full
and fair review,” see 29 U.S.C. § 1133, administrators notify a
claimant of specific information that they were aware was
missing and that was material to the success of the claim. A
similar and limited rule has been recognized by a number of our
sister circuits. See Harden v. Am. Express Fin. Corp., 384 F.3d
498, 500 (8th Cir. 2004) (“In the limited circumstances of this
case, we conclude that [the plan administrator’s] failure to
obtain Social Security records amounted to a serious procedural
irregularity that raises significant doubts about [the]
decision.”); Quinn v. Blue Cross and Blue Shield Assoc., 161
F.3d 472, 476 (7th Cir. 1998) (“We agree that [trustee] was
under no obligation to undergo a full-blown vocational
evaluation of [claimant’s] job, but she was under a duty to make
a reasonable inquiry into the types of skills [claimant]
possesses and whether those skills may be used at another job.”)
abrogated on other grounds by Hardt v. Reliance Standard Life
Ins. Co., 560 U.S. 242 (2010); Booton v. Lockheed Med. Benefits
Plan, 110 F.3d 1461, 1463 (9th Cir. 1997) (“In simple English,
13
what this regulation calls for is a meaningful dialogue between
ERISA plan administrators and their beneficiaries.”).
We do, of course, recognize that plan administrators
possess limited resources, and that there are practical
constraints on their ability to investigate the volume of
presented claims. The rule is one of reason. Nothing in our
decision requires plan administrators to scour the countryside
in search of evidence to bolster a petitioner’s case. The
Gaither decision was similarly cautious. See 394 F.3d at 804
(“[N]othing in ERISA requires plan administrators to go fishing
for evidence favorable to a claim when it has not been brought
to their attention that such evidence exists.”); see also Vega
v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 298 (5th Cir.
1999) (en banc) (declining to place “the burden solely on the
administrator to generate evidence relevant to deciding the
claim”), overruled on other grounds by Metro. Life Ins. Co. v.
Glenn, 554 U.S. 105 (2008).
The law in this circuit has likewise been clear that there
is no open-ended duty for plan administrators to “look all
over. . . for a doctor whose testimony might contradict the
medical reports from reliable physicians that ha[ve] been
submitted.” LeFebre, 747 F.2d at 208. In Berry v. Ciba-Geigy
Corp., 761 F.2d 1003, 1008 (4th Cir. 1985), we also noted that
plan trustees are not “under any duty to secure evidence
14
supporting a claim for disability benefits when those trustees
had in their possession reliable evidence that a claimant was
not, in fact, disabled.” And in Elliott v. Sara Lee Corp., 190
F.3d 601, 608 (4th Cir. 1999), we held that a claimant who did
not submit supplemental evidence to disprove the existing record
showing that she was not disabled, “[could not then] prevail on
an argument that [her employer] had insufficient evidence to
make a reasoned decision.”
In these cases, however, there was sufficient evidence in
the existing record to refute claimant’s theory of disability.
In LeFebre, there was evidence that the plaintiff, who claimed
total disability due to blindness, was nonetheless driving on
his own and able to perform most of his job duties. 747 F.2d at
205. In Berry, the plan administrator “possessed letters from
claimant, claimant’s lawyer, and claimant’s doctor stating that
[he] was ready to resume his employment.” 761 F.2d at 1008.
Similarly, in Elliott, claimant’s treating physicians submitted
statements that “her degree of impairment was 35 to 55 percent
and that she was capable of clerical or administrative activity”
and thus did not meet the plan’s definition of totally disabled.
190 F.3d at 604. We agree that a plan administrator is not
“under any duty to secure evidence [to the contrary]” under such
circumstances. Berry, 761 F.2d at 1008.
15
Harrison’s claim, however, is distinguishable from the
above cases. Here, as Dr. Daniel, the independent peer reviewer
commissioned by Wells Fargo to assess Harrison’s claim, stated,
the record was incomplete and his “opinion as to whether
[Harrison’s] psychiatric status limited her functional capacity
[could not] be provided.” J.A. 394. Wells Fargo was repeatedly
put on notice that Harrison was seeking psychiatric treatment.
In fact, it even commissioned an independent reviewer to assess
whether her mental condition prevented her from returning to
work. That very reviewer made clear to the plan administrator
that the record was not sufficient to render a decision. At the
time it commissioned the review, Wells Fargo had been notified
that Harrison was seeking mental health treatment from Dr.
Glenn. Wells Fargo had Dr. Glenn’s contact information, but it
only provided Dr. Daniel with Dr. Petrizzi’s information. Dr.
Daniel contacted Dr. Petrizzi, Harrison’s primary care physician
who referred him to Dr. Glenn for additional documentation.
However, Dr. Daniel did not take the additional step of
contacting Dr. Glenn directly.
Unlike our earlier cases, the record did not refute
Harrison’s claim of disability. To the contrary, Harrison’s
medical records for her thyroid condition alone present a close
case. She was undergoing multiple surgical procedures for a
large mass in her chest that was causing her pain and tracheal
16
compression. One week after her first surgery she notified Wells
Fargo that she needed a second and significantly more serious
operation to completely remove the mass from her chest. The fact
of and need for these medical procedures Wells Fargo does not
dispute. In the midst of it all, Harrison suffered the
unexpected loss of her husband who had been a source of support
after the earlier deaths of her mother and children. Her sister
provided a statement that claimant was unable to care for
herself. In addition, her primary care doctor noted her chest
pain was made worse by anxiety and stress. In between her
surgeries, and before the mass had been fully removed from her
chest, it was hardly unlikely that Harrison would be unable to
return to work. On such a close record, Wells Fargo’s process
was simply not the collaborative undertaking that ERISA
envisions. A denial on such a basis cannot satisfy ERISA’s full
and fair review requirements.
B.
Here, the Plan documents are consistent with ERISA
provisions –- including the requirement that notification of a
denial must “state the reasons why [the] claim was denied and
reference the specific STD Plan provision(s) on which the denial
[was] based.” J.A. 486. The Plan requires claimants to submit
proof of disability, which may include “medical records, test
results, or hospitalization records.” Id. at 479. However, it
17
also authorizes Liberty, once a release has been signed, to
“contact [a claimant’s] physician to obtain medical information
concerning [the] disability.” Id. The Plan likewise requires
that Liberty notify claimants where sufficient medical
information is lacking and “describe the additional information
needed and explain why such information is needed.” Id. at 486.
The Plan further and properly provides that it is the
“responsibility [of the claimant] to ensure that Liberty
receives requested medical proof.” Id. at 481. Here, the plan
administrator contends Harrison defaulted on that obligation
because she was told to submit all necessary medical information
and she failed to provide any records from Dr. Glenn.
And yet, Harrison did in fact submit proper documentation
authorizing Liberty to contact her treating physicians on June
23, 2011, and Liberty relied on that release to contact Drs.
Petrizzi, Van Himbergen, and Hollings throughout the claims
process. Absent notice to the contrary, it would have been
perfectly reasonable for Harrison to assume that the plan
administrator had done the same with Dr. Glenn, especially since
she provided Wells Fargo with his contact information in her
request for appeal. See id. at 134-35. Yet, notwithstanding the
release and contact information, neither Liberty nor Wells Fargo
got in touch with Dr. Glenn’s office for records or evidence
regarding her mental disability claim.
18
Furthermore, if an initial claim is denied, the Plan
requires that where additional information is needed “the claims
decision [must] describe the additional information needed and
explain why such information is needed.” Id. at 486. Wells Fargo
failed to comply with this requirement of the Plan. Although
Wells Fargo was on notice that Harrison was receiving treatment
for potentially debilitating psychological trauma, it never made
clear to her that records from Dr. Glenn were missing and needed
-- noting only vaguely and deep into a long letter that she
should provide relevant medical information without ever once
mentioning Dr. Glenn by name. See id. at 56-57. The Plan itself
recognizes that, consistent with ERISA, the claims process must
be collaborative not adversarial, especially in light of the
fact that claimants must often proceed without the aid of legal
counsel. Wells Fargo should have made clear that records from
Dr. Glenn were absent from the record and necessary to perfect
Harrison’s claim. It was not appropriate under the circumstances
to require that the claimant wonder and guess.
Ultimately, as we have earlier mentioned, Harrison was
undergoing difficult diagnostic tests and repeated surgeries
when she suffered the sudden loss of her husband just several
years after the loss of her mother and children in a house fire.
There was a real possibility under the terms of the Plan that
she could have demonstrated a medically certified condition that
19
prevented her from returning to work in between her surgeries.
The record at hand provides evidence of claimant’s mental and
physical distress. Dr. Petrizzi, Harrison’s treating physician,
referenced her psychological condition in his records, and
increased her dosage of anti-depressant drugs during the
relevant timeframe, and her sister’s statement detailed
debilitating panic attacks. Wells Fargo was put on notice that
Harrison was seeking treatment for psychological ailments in
addition to thyroid disease and yet failed to undertake the same
minimal effort to obtain records from Dr. Glenn that it properly
took with regard to records from Drs. Petrizzi, Van Himbergen,
and Hollings. Instead, it denied Harrison benefits on an
incomplete record. A plan administrator cannot decline to
undertake the most nominal efforts to obtain readily available
information that was made known to the Plan, that was plainly
material to the claim, and that could well have provided the
proof crucial to Harrison’s success. At least, under the terms
of the Plan here, Wells Fargo should have instructed Harrison
plainly and specifically that additional records from Dr. Glenn
were needed to perfect her claim.
IV.
It bears repeating that the primary responsibility for
providing medical evidence to support a claimant’s theory rests
with the claimant. See Berry, 761 F.2d at 1008. Claimants are
20
more familiar with their medical history and their treating
physicians and are far better suited to provide the evidence
necessary to support a claim for disability. However, once a
plan administrator is on notice that readily-available evidence
exists that might confirm claimant’s theory of disability, it
cannot shut its eyes to such evidence where there is little in
the record to suggest the claim deficient.
Like our sister circuits, we now adopt this narrow
principle – narrow because it does not undercut claimant’s
responsibility to provide medical information nor impose a duty
on plan administrators to fish for medical information on the
mere possibility that it may be helpful in some remote way.
Here, however, Wells Fargo breached the fiduciary duty owed to
Nancy Harrison when it neither sought readily available records
from Dr. Glenn that might have confirmed her theory of
disability nor informed her in clear terms that those records
were necessary. Even absent those records, this was a close
case. The judgment must be reversed and remanded to the district
court with instructions to return this case to Wells Fargo for
proceedings consistent with this decision.
REVERSED AND REMANDED
21