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.
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Photo of Mike Reilly Mike Reilly

Mike Reilly is a nationally recognized labor, employment and employee benefits attorney, named one of the “Top 100 Most Powerful Employment Attorneys in the Nation” for the past five consecutive years by Human Resource Executive®. He has decades of experience providing strategic employment…

Mike Reilly is a nationally recognized labor, employment and employee benefits attorney, named one of the “Top 100 Most Powerful Employment Attorneys in the Nation” for the past five consecutive years by Human Resource Executive®. He has decades of experience providing strategic employment advice, and has represented clients in more than 75 jury trials, arbitrations, bench trials and claims before the EEOC and Washington State Human Rights Commission.

Small and large employers retain Mike for his strategic advice and decades of experience in employment issues and litigation, business decisions and litigation avoidance. Mike provides advice in claims involving discrimination, retaliation, wrongful discharge, disability accommodation, ERISA and non-ERISA employee benefit claims, and wage/hour claims. He served as lead counsel in an employee raiding/trade secret case as reported in the Wall Street Journal, and defends employers in class action claims.

Mike’s remarks on employment issues have been quoted in NewsweekCorporate Legal TimesSeattle TimesEmployee Relations Law JournalPuget Sound Business JournalCFO.com, and other professional journals and management publications. Chambers USA’s Guide to America’s Leading Lawyers for Businessrates Mike in the top ranking (band one) for his work in labor and employment law, and has described him as “one of Seattle’s top-rate attorneys” who is “truly phenomenal [with] superb legal instincts” and “an amazingly assertive litigator.” His clients include Nordstrom, Seattle Seahawks, Home Depot, KeyBank, Starbucks, Fred Hutchinson Cancer Research Center, Red Robin and Seattle Chamber of Commerce, among others.