Disability claimants often attack the ERISA plan’s expert medical reviewer as biased, sometimes seeking discovery in an attempt to show bias.

Here’s a new case that highlights what can happen in a de novo review case: No discovery about a medical expert allowed.

Shaikh v. Aetna Life Ins. Co., 2019 WL 1571876 (N.D. Cal. April 11, 2019)(In de novo review case, the Court denied discovery related to alleged bias of medical reviewers).

FACTS: Plaintiff Shaikh sought ERISA-governed long term disability benefits. He alleged the independent reviewer retained by Aetna was biased and sought limited discovery about the medical reviewer including: (a) total annual compensation Aetna paid the medical reviewer from 2007; (b) the number of hours per week the medical reviewer actually treats patients (rather than performs record reviews).

ISSUE: Was Aetna compelled to answer discovery about the medical reviewer?

DISTRICT COURT HELD:  NO.

  1. New evidence may be considered by a court performing de novo review only in “exceptional circumstances.” Op. at 2.
  2. “‘It makes little sense to allow broad and costly discovery when the court’s review of the merits is limited to the administrative record (except in narrow circumstances where additional evidence is necessary to conduct an adequate de novo review).’”  Op. at 2.
  3. ”[S]everal district courts in this circuit have held that the mere fact a physician receives compensation from a plan administrator for performing medical reviews is insufficient by itself to be probative of bias.” Op. at 3 (emph. added).
  4. “Permitting the requested discovery in this case is inconsistent with the limitations [the Ninth Circuit] contemplates on extra-record evidence in de novo cases.” Op. at 4.

 

Practicing law can create real headaches.

But do headaches constitute a disabling condition justifying ERISA-governed long term disability benefits?  

This new case explains the correct process in assessing “job duties” in the “Own Occupation” analysis…

Foster v. Principal Life Ins. Co., 920 F. 3d 298 (5th Circuit April 4, 2019)(Benefit denial when based on “passing references” to the claimant’s ‘own occupation’ or ‘own sedentary level occupation’ when “unaccompanied by any attempt to articulate the material duties of the appellant’s own occupation” is inadequate to sustain benefit denial).

FACTS: Foster, a “healthcare attorney,” sought ERISA-governed long term disability benefits claiming she had “chronic and intractable” migraine headaches. Her physicians opined she could not perform full-time sedentary work, yet surveillance showed her ably shopping and picking up children. Principal Life denied the claim and Foster’s appeal of the claim denial after independent reviews by a psychologist, neurologist, neuropsychologist, along with normal MRIs and EEGs, found no clinical evidence of any functional impairment to perform a sedentary job. The plan vested discretion with the administrator.

Foster sued, however, claiming Principal never evaluated whether she could perform the specific duties of a healthcare attorney, “e.g., meeting deadlines, handling stress…prolonged computer use…and [the] intellectual challenges of handling complex situations.”

DISTRICT COURT HELD: Principal did not abuse its discretion in denying long term disability benefits.

ISSUE: Whether Principal failed to analyze Foster’s disabling condition in light of her actual job duties as a healthcare attorney?

FIFTH CIRCUIT AFFIRMS:

  1. “[A]n ERISA plan administrator abuses its discretion by denying benefits under an ‘Own Occupation” clause based on reports couched only in terms of a claimant’s ability to work “a full time sedentary position.” Denial of benefits, when based on “passing references” in medical reviews to the appellant’s ‘own occupation’ or ‘own sedentary level occupation’ when “unaccompanied by any attempt to articulate the material duties of the appellant’s own occupation” is inadequate to sustain benefit denial.  Op. at 10 (Citing cases from the 1st, 2nd, 3rd, 5th, and 6th circuits).  
  2.  [T]here is substantial evidence showing that at least one of the [independent reviewing doctors] considered Foster’s disability in light of the specific duties required by her occupation as an attorney.”  Op. at 11.
  3. “Principal asked Foster for a description of her job duties and then provided to all reviewing physicians the documents she gave them.” Op. at 11.
  4. “To be sure, Foster adduced evidence of her own suggesting that her headaches rendered her unable to perform as an attorney. But that does not entitle her to prevail under the substantial evidence standard….Principal marshaled enough evidence to satisfy its burden, and Principal did not abuse its discretion on this ground. Op. at 11-12.

 

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.