When does evidence of malingering justify denial of a long term disability claim?  It depends. A physician’s subjective opinion regarding malingering may have less weight than objective neuropsychological testing.

Key Take Away:  When the claimant’s neuropsychological testing is rendered invalid due to “failed validity tests,” that may be enough to deny the claim. It is important that the record contain evidence how the tests were conducted, and how the tests objectively measured validity.

Here’s the case of Johnston v. Prudential Ins. Co., 916 F. 3d 712 (8th Cir. February 25, 2019). 

FACTS: Johnston, a computer engineer, sought ERISA-governed long term disability benefits for cognitive impairment after brain surgery. Johnston underwent neuropsychological tests, rendered invalid because he “failed almost all of the validity tests.” Failed validity tests indicate one may be “actively attempting to perform poorly.” After Prudential denied disability, Johnston appealed. Prudential sought a second neuropsychological examination, and Johnston’s testing failed the validity tests again.

The District Court, applying discretionary review, affirmed Prudential’s denial of the disability and Johnston appealed. 

ISSUE: Whether repeat, invalid neuropsychological tests justified claim denial?

 EIGHTH CIRCUIT HELD: YES. 

  1. Prudential’s benefit denial was upheld because there was evidence Johnston was “deliberately exaggerating his symptoms, making it impossible to determine whether he had cognitive deficiencies that rendered him disabled.”  Op. at 5.
  2. With neuropsychological tests there are “multiple established ways to test validity of a neuropsychological examination.  The record showed how the tests were administered, and how these tests objectively measure validity.”  Op. at 6.

You already know that ERISA sets forth a 180-day time limit for internal administrative appeals of benefit denials.

And failure to pursue a timely internal administrative appeal can subject the claimant (in a later federal lawsuit) to the defense of failure to exhaust administrative remedies.

But can a claimant save an untimely administrative appeal by arguing the “substantial compliance doctrine”?  No.

Here’s the case of Fortier v. Hartford Life and Acc. Ins. Co., __ F. 3d __ (1st Cir., February 20, 2019)(Affirming dismissal of lawsuit due to untimely administrative appeal and failure to exhaust administrative remedies, concluding: “‘[To apply the substantial compliance doctrine to appeal deadlines] would render it effectively impossible for plan administrators to fix and enforce administrative deadlines while involving the courts incessantly in detailed, case-by-case determinations as to whether a given claimant’s failure to bring a timely appeal from a denial of benefits should be excused or not.’”)  

FACTS: Fortier sought ERISA-governed long term disability benefits claiming an infection had caused him memory problems. Fortier’s physician determined impairment resulted from a mood disorder, and Hartford granted benefits up to the 24 month mental/nervous limitation period. Fortier appealed the denial of benefits, and later sued.  The Court dismissed the lawsuit, and Fortier appealed.

ISSUE:  Does the “substantial compliance” doctrine excuse a claimant’s late appeal? 

1st Cir. HELD:

  1. “‘It seems consistent neither with the policies underlying the requirement of exhaustion of administrative remedies in ERISA cases nor with judicial economy to import into the exhaustion requirement the substantial compliance doctrine.’” Op. at 21 (quoting Edwards v. Briggs & Stratton Ret. Plan, 639 F.3d 355, 362 (7th Cir. 2011)).
  2. “‘[To apply the substantial compliance doctrine to appeal deadlines] would render it effectively impossible for plan administrators to fix and enforce administrative deadlines while involving the courts incessantly in detailed, case-by-case determinations as to whether a given claimant’s failure to bring a timely appeal from a denial of benefits should be excused or not.’”   Id.
  3. “[T]he Supreme Court has discussed ERISA’s ‘careful balancing’ between ensuring fair and prompt enforcement of rights under a plan and the encouragement of the creation of such plans.’”  Op. at 22.
  4. “[S]tate common law notice-prejudice rules do not apply to ERISA appeals.”  Op. at 24 (Emph. added).

 

From time to time you may see ERISA benefit claimants seeking declarations from the Court regarding “future benefits.”

But there is that old rule, recently recognized again, that such claims should be dismissed because there is no “live case or controversy.”  

To highlight this point, here’s the recent case of  Peer v. Liberty Life Assurance Co.., __ Fed. Appx. __ (11th Cir. February 8, 2019)(“Absent an adverse benefits determination, there is no ripe claim before us.”)

FACTS: Peer brought a claim for ERISA-governed life insurance benefits. She sought (1) a ruling enforcing the Waiver of Premium benefit (this allows a covered person who become “Totally Disabled” while insured to remain eligible for coverage without paying premiums); and (2) a declaration as to “future eligibility of benefits—whether and how [Liberty] will handle her waiver of premium requests in the future.”

ISSUE: Can a Claimant Seek a Declaration of Future Benefits?

11th CIRCUIT COURT OF APPEALS HELD:  NO.

  1. Peer’s Waiver of Premium claim “was moot because Liberty reversed its initial adverse benefits determination and reinstated Peer’s coverage.” By doing so, “there is no further relief that the Court can award [Peer] on her claim for an award of the Waiver of Premium.”  Op. at 3.
  2. The Court denied Peer’s request to make a declaration regarding future benefits because there is no “live case or controversy.”  “Peer must first be deemed not  “Totally Disabled” and that decision must then be administratively reviewed by Liberty….  Absent an adverse benefits determination, there is no ripe claim before us.” Op. at 4-5.
  3.  The Court distinguished this case from Lamuth v. Hartford, 30 F. Supp. 3d 1036 (W.D. Wash 2014)(In Lamuth, the Claimant requested a declaration on a claim “that had been exhausted and repeatedly subject to dispute” involving application of the Pre-existing Condition Limitation). Op. at 4.

 

You already know that in ERISA cases the court has discretion to award reasonable attorney fees if the claimant shows “some degree of success on the merits” and this success is more than ‘trivial success on the merits’ or ‘purely procedural.’”

So, what happens when the Court remands the claim for further consideration by the administrator, and on remand the claim is still denied? 

Is the Claimant still entitled to attorney fees, even though the remand failed to change the outcome of the claim denial? Yes.

Here’s the case of Host v. First Unum Life Insurance Company, 2019 WL 343255 (D. Mass. January 28, 2019) that highlights the point.

FACTS: Host brought suit after Unum denied his claim for ERISA-governed long term disability benefits. The Court remanded the decision, stating that Unum should conduct “a more thorough inquiry” by “compel[ling] Deutsche Bank to provide any information reasonably required to resolve a benefits claim.”

Unum then reviewed on remand, and denied the claim again. Host then sought attorney fees.

ISSUE:  Whether Plaintiff was entitled to attorney fees when, on remand, his disability claim was denied again?

DISTRICT COURT HELD: Yes.

  1.  “[A] court has the discretion to award ‘a reasonable attorney’s fee and costs of action to either party.’”  Op. at 2.
  2.  “However, a ‘claimant must show some degree of success on the merits before a court may award attorney fees [and] this success must be more than ‘trivial success on the merits’ or ‘purely procedural.’” Op. at 2.
  3.  “Although Unum’s ultimate denial of benefits on remand may be relevant to the Court’s calculation of attorney’s fees, that fact should not prevent Host from recovering fees for getting a second chance at making his case.”  Op. at 3.
  4. “Regardless of what occurred after the remand order, Host successfully demonstrated that Unum’s initial decision was defective, and he is eligible to recover reasonable attorney’s fees as a result of that success.”  Op. at 3.

 

A common battle ground in ERISA claims involves the argument that ambiguous terms should be construed against the party that drafted the document.  This is known as the doctrine of contra proferentem.  See generally E. Erlich, [How to] Conquer Your Enemies and Impress Your Friends with Everyday Latin (2010).

But when the ERISA Plan has vested discretionary authority to the plan administrator to determine eligibility and construe plan terms, should the court construe ambiguous terms against the plan administrator?  NO.

To highlight this point, here is the case of Holzman v. Hartford Life and Accident Ins. Co., ___F. Supp. 3d __, 2019 WL 181527 (D. Mass. January 14, 2019). (Kudos to some nice work by my friend Byrne Decker at Ogletree…)

FACTS: Holzman sought ERISA-governed disability benefits for facial paralysis. Hartford, the claim administrator, denied the claim under the Pre-Existing Condition provision. Holzman claimed Hartford “failed to define pre-existing condition adequately or to specify what constitutes “nonspecific symptomology.”  Holzman argued that this ambiguity should be resolved in his favor under the doctrine of contra proferentem (which construes vague terms against the insurer).

ISSUE: Whether ambiguous terms should be construed against the disability insurer under the contra proferentem doctrine?

DISTRICT COURT HELD:

  1.  “[C]ontra proferentem does not apply because…the Group Policy grants full discretionary authority to the Hartford to determine eligibility for benefits and to construe and interpret all terms and provisions in the Policy.”  Op. at 6.
  2.  Where the policy does not contain discretionary language, you should expect the court to apply contra proferentem and to construe vague terms against the drafter or insurer.  Op. at 7.

You already know that discovery is usually limited in appeals of the denial of ERISA-governed benefits. This is especially true when there is de novo review. 

But watch out if a breach of fiduciary duty claim is asserted. That same rule (prohibiting discovery) does not apply when a party seeks discovery into purported breaches of fiduciary duty under 29 USC 1132(a)(3).

Here’s the case of Friemon v. National Carriers’ Conference Committee and Union Pacific Railroad Company,  2018 WL 6171439 ( E.D. Missouri November 26, 2018).

FACTS: Friemon sought ERISA-governed Supplemental Sickness Benefits after sustaining injuries in a head-on auto accident. After Aetna denied the claim, Plaintiff brought suit claiming his benefits were: (1)  wrongly denied, and that (2) the employer breached a fiduciary duty under 29 USC 1132(a)(3) essentially by failing “to provide the necessary paperwork to apply” for the benefits. 

Even though there was no evidence the employer was even a fiduciary of the plan, Plaintiff sought discovery on the breach of fiduciary duty claim.

ISSUE: Is discovery allowed with regard to a breach of fiduciary duty claim under 29 USC 1132(a)(3)?

DISTRICT COURT HELD: YES.

  1. “The Court finds it would be premature to determine [the employer’s] fiduciary status at this early stage of the proceeding.”  Op. at 4.
  2. “‘[T]he general rule is that review is limited to evidence that was before the administrator.’”  Op. at 3.
  3. “This limitation on discovery does not apply, however ‘to claims involving ERISA plans when the claims are for equitable relief under 1132(a)(3) or for equitable estoppel. …This is so because these types of actions ‘do not benefit from the administrative process.’”  Op. at 3.

 

Many states have banned discretionary clauses in life and disability policies. But remember to look closely at the language… to see if the ban actually applies to the policy at issue.

Here’s the case of Brian H and Alex H v. Blue Shield of California, 2018 WL 5778318 (N.D. Cal. November 1, 2018)(California’s ban on discretionary language did not apply to health insurance).

FACTS: Plaintiff sued contending certain medical treatments were “medically necessary”. The initial claims denial was made by Blue Shield’s Mental Health Administrator, which had not been expressly granted discretionary authority to make claims determinations. The final claim decision, however, was made by Blue Shield, which did have discretionary authority under the ERISA Plan.

Plaintiff argued that: (1) that California’s ban on discretionary clauses in life and disability policies applied to health insurance policies; (2) that de novo review should apply because the claims administrator was not granted discretionary authority, and (3) a conflict (Blue Shield made claim decisions and would pay the claim) required “heightened skepticism” during the court’s review.

DISTRICT COURT HELD: Abuse of Discretion Standard of Review Applies

  1. California’s regulation banning discretionary clauses in a “‘policy…that provides or funds life or disability insurance coverage’ is not applicable, as the Plan provides health insurance.”  Op. at 1
  2. “[N]othing in the [ERISA] Plan precludes Blue Shield from applying the ‘Magellan Medical Necessity Criteria Guidelines’ in determining whether services are ‘medically necessary’ under the Plan.” Op. at 2.
  3. With regard to whether a structural conflict requires review by the Court under “heightened skepticism,” “courts need not accord such factor signficant weight in the absence of evidence of bias.”  Op. at 2

Most ERISA plans contain provisions limiting benefits for disabilities “which are primarily based on self-reported symptoms” or “mental illness.” (Emphasis added).

So, what does “primarily” mean? And what evidence in the medical records justifies the conclusion that the diagnosis is primarily based on self-reported symptoms?

Here’s a new case that highlights that the limitation still applies even when there might be some weak evidence in the medical records verifying the diagnosis. That’s because the diagnosis rested “primarily” on self-reported symptoms. Floerke v. SSM Health Care Plan and Unum Life Ins. Co., 2018 WL 5045770 (W.D. Wisc. October 17, 2018)(Relying on nurse reviews, Unum properly discontinued benefits after concluding the diagnosis of headaches was primarily based on self-reported symptoms and discontinued benefits).

FACTS: Floerke sought ERISA-governed disability benefits as a result of “chronic daily persistent headaches” and anxiety. UNUM, vested with discretion in making the claim determination, discontinued benefits after 12 months under the “self-reported symptoms” limitation, which applies to disabilities “which are primarily based on self-reported symptoms” or “mental illness.” (Italics added). Floerke sued alleging wrongful denial of benefits.

ISSUES: Whether Plaintiff’s chronic migraine diagnosis was primarily based on medical records, tests and physical exams which sufficiently verified her condition?

DISTRICT COURT HELD: NO. Unum did not abuse its discretion in discontinuing benefits.

  1. Plaintiff argued the self-reported symptoms limitation should not apply because the diagnosis was primarily based on her medical history, physical exam, and “a process of exclusion diagnosed through standard clinical practice.” This medical information included “evidence of increased spinal pressure,” and muscle tenderness and range of motion limitations. Op. at 17.
  2. “[T]he self-reported limitation applies only to the method used to diagnose the sickness or injury that [led] to the disability, and not the symptoms of the claimed disability itself.” Op. at 17.
  3. Floerke’s clinical migraine diagnosis was based primarily on self-reported symptoms. Op. at 18.
  4. Evidence of “increased spinal fluid pressure” was not verifiable evidence confirming the headaches because the medical records did not consistently establish she had increased spinal fluid pressure, or that it was the cause of the headaches. Op. at 19.
  5. Unum properly relied on nurses’ analyses concluding that the medical records failed to verify Floerke’s headaches. Op. at 23.

You already know that many ERISA plans contain discretionary language, which calls for a court to review the ERISA claim denial under an abuse of discretion standard.

But many times a structural “conflict of interest” can occur where the plan administrator has the “dual role” of administering and funding the plan benefit. Courts typically look for evidence that the structural conflict actually affected the claim handling, which can affect the scrutiny of review.

One well-known and easy way to inoculate the effect of structural conflicts of interest is to use “independent peer reviewers.”

Here’s the case of Green v. Life Insurance Company of North America (LINA), ___ Fed. Appx. __ (10th Cir. September 26, 2018) that highlights the point.

FACTS: In December 2014, Green, a tractor-trailer operator experienced “cloudy and foggy vision” and sought medical treatment. Three unsuccessful surgeries resulted in permanent loss of vision, rendering him unable to work as a truck driver. Green sought ERISA-governed disability benefits, administered and funded by LINA. The ERISA plan contained discretionary language.

LINA denied the claim, concluding Green’s condition was a pre-existing condition: the posterior vitreous detachment Green experienced in December 2014 likely caused a retinal tear and eventual detachment in 2015. Green sued to recover benefits.

ISSUE: Whether the structural conflict of interest affected the claim?

HELD: The structural conflict of interest was properly addressed by LINA.

  1. “LINA properly dealt with its conflict of interest in its dual capacity role by twice referring Mr. Green’s case to independent medical reviewers.” Op. at 6.
  2. LINA made a reasonable and good faith determination that Mr. Green had a pre-existing condition…that caused or substantially contributed to his vision loss….LINA relied on five doctors’ opinions, two of whom were Mr. Green’s own doctors, and all of whom agreed….” Op. at 7.

ERISA plans and related disability or health policies contain language granting the right to reimbursement of overpayments made to the claimant. Overpayments usually occur when the claimant receives lump sum Social Security benefits, or the claimant receives a tort settlement.

Can the claimant oppose repaying the overpayment by asserting equitable defenses? Maybe.

Here’s the case of Jalali v. Unum Life Insurance Company of America, 2018 WL 4468207 (S.D. Ohio September 18, 2018).

FACTS: Jalali was severely injured in a 2007 car accident. She sought and received ERISA-governed disability benefits from Unum. Before Jalali settled her tort claim with the adverse car driver, Unum twice sent Jalali a form asking her to certify that she would notify Unum of any tort settlement. Jalali never returned the form, and then settled her tort claim for $631,530 after attorney fees and costs. Jalali then paid off $260,000 in mortgages and $110,000 in student loans.

Unum discontinued benefits, determining she was no longer disabled. Jalali sued Unum, and during that suit Unum did not seek reimbursement of the tort settlement proceeds and the Court ordered Unum to pay disability benefits ($2400 per month). After the Court ordered Unum to resume $2400 per month disability payments, Unum sought repayment from the tort settlement by reducing disability benefits to zero for 102 consecutive months, until it recouped the overpayment. Jalali sought equitable relief, claiming the offset was inequitable.

ISSUE: Whether equitable arguments may defeat efforts to enforce provisions of the policy allowing for reimbursement from tort settlement proceeds.

DISTRICT COURT HELD:

  1. ERISA Section 1132(a)(3) allows for a civil action “to obtain appropriate equitable relief…” Op. at 6.
  2. “[T]he test for whether a remedy constitutes ‘appropriate equitable relief’ under [ERISA]…is whether such relief was ‘typically available in equity….’” Op. at 7.
  3. “[T]he power to reform contracts…is a traditional power of an equity court … To seek reformation it is not necessary to suggest specific contract language. Op. at 7.
  4. No Unclean Hands. Unum properly informed Jalali it was “possible” that it could seek reimbursement. This was an accurate representation and did not constitute misrepresentation. Op. at 9.
  5. No Waiver. Unum did not “intentionally relinquish” its known rights, even though Unum never asserted reimbursement as an affirmative defense. Emails between counsel showed that both parties understood that Unum planned to assert its interest in the settlement proceeds. Op. at 10.
  6. No Laches. Jalali argued that Unum was not diligent in pursuing reimbursement because Unum did not seek to do so when Unum learned of the settlement in 2012. “There is no strict time limit within which Unum must seek enforcement, and there is no evidence that the delay caused Ms. Jalali’s legal position to change”. Op. at 11.
  7. The Make Whole Rule — Remand for Further Proceedings. “‘[A]n insured should not be allowed to retain a double recovery at the expense of the insurer.’” The Sixth Circuit follows the make whole rule, which means that the “insurer does not have a right to subrogation until the insured has been fully compensated….’” Op. at 12.
    • Unum has not attempted to establish an equitable lien over the settlement funds. Op. at 13.
    • “Because …the settlement funds have been dissipated, [Unum cannot now establish an equitable lien].” Op. at 13.
    •  The record indicated that Jalali’s future wage loss exceeded the amount of the settlement…[b]ut this evidence is not conclusive”. The court remands for fact-finding on application of the “make whole” rule. Op. at 14.