You already know that judicial review of ERISA claims generally will be limited to the administrative record considered by the claim administrator.

But the courts will allow claimants to augment the record if ERISA claims procedure was not followed.

…And courts might conclude that failing to make an IME report (obtained and relied on during the appeal process) available to claimant for review and comment violates ERISA claims procedure.

Here’s the case of Yancy v. United of Omaha Life Insurance Co., _ F.Supp. 3d _, 2015 WL 5132086 (C.D. California August 25, 2015)(“Because the record reflects that United considered and even relied on [the IME] report in making its appellate determination to uphold the claim denial, United violated ERISA’s procedural requirement when it failed to make the report available to plaintiff for review and comment during the appeals process.”)(PDF)

FACTS: Yancy made a disability claim which was denied after medical reviews. When Yancy appealed, United obtained an independent medical exam (IME)  and affirmed the claim denial.  Yancy sued and moved to augment the record, seeking to add a rebuttal to the IME report.

ISSUE:  When can a claimant “augment” the administrative record?

HELD: Claimant allowed to augment record.

1.  “‘In most cases’ only evidence that was before the plan administrator should be considered. ‘[A] district court should not take additional evidence merely because someone at a later time comes up with new evidence that was not presented to the plan administrator.’”  Op. at 3 (Citations omitted).
2.  “‘When a plan administrator has failed to follow a procedural requirement of ERISA, the court may have to consider evidence outside the administrative record.’”  Op. at 4.
3. “Even when procedural irregularities are smaller…and abuse of discretion review applies, the court may take additional evidence when the irregularities have prevented full development of the administration record.”  Op. at 4.
4. “Because the record reflects that United considered and even relied on [the IME] report in making its appellate determination to uphold the claim denial, United violated ERISA’s procedural requirement when it failed to make the report available to plaintiff for review and comment during the appeals process.” Op. at 7.