You already know that many state laws ban the “abuse of discretion” standard of review in denials of ERISA-governed long term disability benefits.

But self-funded ERISA plans may still apply the discretionary standard of review.

And “incorporating by reference” the Summary Plan Description (SPD) is effective in making the SPD part of the ERISA plan.

Here’s the recent case of Sorger v. Norvatis, __ Fed. Appx. __ (9th Cir. August 25, 2021)(Pre-existing condition case: Abuse of discretion standard of review applied to self-funded plan and employee-purchased supplemental benefit).

FACTS:  Sorger sought ERISA-governed long term disability (LTD) benefits from a self-funded plan. Participants could also purchase supplemental LTD coverage that added 17% more to the disability benefit. Funds from purchases by employees were held in a Voluntary Employee Benefit Association (VEBA) trust. The operative ERISA plan conferred discretion to Met Life to construe plan terms and decide eligibility.

Sorger argued the pre-existing condition clause was not valid because the plan stated that Met Life would establish the pre-existing condition limitations, but argued that Met Life had not created the relevant limitation.

Ninth Circuit Court of Appeals Held:

  1. The abuse of discretion standard applied. The VEBA Trust was not a separate ERISA plan because the trust was used only as a funding mechanism for the plan’s supplemental LTD benefit. Op. at 4. Since there was only one ERISA plan, and it clearly conferred discretion, the abuse of discretion standard applied. Op. at 4-5.
  2. “[T]he pre-existing condition clause in the Summary Plan Description was valid.” The plain language of the Plan expressly incorporates, in its entirety, the Summary plan Description prepared by Novartis.  Accordingly, Met Life had discretion to construe and enforce the Summary Plan Description.  Op. at 6-7.
  3. Sorger had a pre-existing condition, justifying denial of the claim. During the look back period, but prior to when a definitive diagnosis was reached,  Sorger received treatment for a variety of unrelated conditions and “underlying conditions” related to his ultimate medical diagnosis. Consequently, “Sorger ‘received medical treatment, consultation, care or services’ for his pre-existing condition.” Op. at 9.

We all are seeing more “breach of fiduciary duty claims” asserted in lawsuits seeking ERISA-governed benefits.  As you know, ERISA allows participants, beneficiaries, and the Secretary of Labor to obtain relief against ERISA fiduciaries for breaching the fiduciary duties they owe to the plan or its participants. ERISA fiduciaries can also be liable under § 502(a) for engaging in certain types of specified self-dealing and prohibited transactions under ERISA § 406 that are per se fiduciary duty violations.

But what is a “fiduciary duty”?  Do repeated calculation errors, or the failure to audit for calculation errors, involve “fiduciary duties”? NO. 

This new case highlights the point:  Morris v. Aetna Life Insurance Company, 2021 WL 3509553 (C.D. California August 9, 2021)(“…miscalculation [of benefits], the repeated affirmation of the miscalculation, and the failure to audit to catch miscalculations—all are inextricably entwined with the ‘calculation of benefits,’ which is ‘a ministerial function that does not have a fiduciary duty attached to it.’”)(Emph. added).

FACTS:  In 2009, Morris sought ERISA-governed long term disability benefits during chemotherapy treatments for cancer.  Aetna approved benefits, concluding she was totally disabled.  Over the next ten years Aetna paid Morris based on the assumption that her employer paid Morris bi-weekly (26 paychecks a year)… but the employer had paid Morris bi-monthly (24 paychecks per year). Aetna’s repeated ten-year calculation errors resulted in an overpayment to Morris totaling $56,478.

So, when Aetna discovered its repeated calculation errors and overpayment, it began reducing monthly payments to Morris.  Morris sued alleging she was entitled to the higher benefit, and also asserted an ERISA 502(a)(3) claim seeking equitable remedies, like estoppel and waiver, claiming Aetna breached its fiduciary duties to her.

ISSUE: Whether Aetna breached its fiduciary duty because of repeated calculation errors overpaying Morris, and for seeking reimbursement of the overpayment?

DISTRICT COURT HELD: Aetna wins summary judgment: Repeated calculation errors, and failure to audit to catch miscalculations, do NOT involve fiduciary duties.

  1. “In every case charging breach of ERISA fiduciary duty…, the threshold question is not whether the actions of some person employed to provide services under a plan adversely affected a plan beneficiary’s interest, but whether that person was acting as a fiduciary (…performing a fiduciary function) when taking the action subject to the complaint.”  Op. at 8-9.
  2. “[T]he calculation of benefits according to a pre-set formula was not a fiduciary function under ERISA.” Op. at 9 (Citing Bafford v. Northrop Grumman Corp., 994 F.3d 1020, 1028 (9th Cir. 2021) (Emph. added)).
  3. “The alleged breach of fiduciary duties—resulting from the miscalculation, the repeated affirmation of the miscalculation, and the failure to audit to catch miscalculations—all are inextricably entwined with the ‘calculation of benefits,’ which is ‘a ministerial function that does not have a fiduciary duty attached to it.’”  Op. at 9-10.
  4. “Claims for estoppel and waiver fail for another reason: ‘The concepts of waiver or estoppel cannot be used to create coverage beyond that actually provided by an employee benefit plan.’”  Op. at 10.

What happens when the claimant is “disabled” from performing her job with her current employer… but can perform that same job with another employer?

This issue highlights the importance of the “national economy” definition of disability as found in most long term disability policies.

Here’s the case of Holden v. Unum Life Ins. Co. of Am., __ Fed. Appx. __, 2021 WL 2836624 (6th Cir. July 8, 2021)(This decision also provides good defense responses to criticisms of benefit denials based solely on medical record reviews rather than independent medical exams.).

FACTS: Holden sought ERISA-governed Long Term Disability (LTD) benefits due to Post Traumatic Stress Disorder arising out of alleged overwork, bullying and abuse at her law firm. Her physician also opined that she was disabled and could not work for her current, or any other, employer. But Unum concluded Holden was not disabled because: (1) her claimed disability related to “issues unique to your specific workplace”; and (2) Holden was “able to perform… her regular occupation as it is normally performed in the national economy….” Holden then sued Unum.

SIXTH CIRCUIT COURT OF APPEALS, APPLYING ABUSE OF DISCRETION STANDARD OF REVIEW, HELD:

1.   “[Under the terms of the plan], what mattered to Unum’s determination was not whether Holden was capable of performing her job [at her law firm] but rather whether Holden could have performed a similar job for another employer at another location.” Op. at 21 (emph. added).

2.  “Holden’s [claim fails because the]… allegations were specific to [her law firm employer]…. Her physicians concluded her “struggles were workplace-specific.”  Op. at 22.

3.  The Court disregarded the opinions of one treater who opined that Holden would not be able to perform the same occupation for a different employer because:

a.  the statement was internally inconsistent with the physician’s notes/opinions; and

b.  “Unum is not required to defer to [the treating physician’s] opinion.” “When [applying the abuse of discretion standard] we are tasked with asking whether it is possible to offer a reasoned explanation…[and] we cannot require Unum to adopt some of [the treating physician’s] observations while discrediting others.”  Op. at 25 (underscore in original).

4.  Unum’s reliance merely on a medical record review (rather than an independent medical exam) was not arbitrary and capricious because Unum did not deny benefits “based on any credibility determination regarding Holden….[Unum] appears to have based its decision by crediting Holden’s own statements rather than finding her not credible.”  Op. at 29.

5.  “This Court has never held that if a psychiatric determination is at issue, it is necessarily arbitrary and capricious to fail to conduct an independent medical evaluation.”  Op. at 31.

6.  “‘Even if in-person examination is favored…reliance on a file review does not, standing alone, require the conclusion that [the administrator] acted improperly.’”  Op. at 34 (citation omitted).

7.  Doc-to-Doc and Peer Reviews help. The Court also was not troubled that the claim denial was based solely on a medical file review because “some of the reviewing experts here spoke directly with those who treated Holden.” Op. at 34.

You know that a claimant must exhaust administrative remedies before filing a suit. But is an appeal “optional” when the denial letter says that claimant “may request a second level review”? NO.

And what’s with 502(a)(3) breach of fiduciary claims anyway?  “‘[A] review of the [ERISA] legislative history confirms that Congress did not contemplate that [the] phrase [equitable relief] would include an award of money damages’.”

This new case addresses these issues: Benson v. Tiffany and Company SPD, 2021 WL 1864035 (S.D. N.Y. May 10, 2021)(Claims denied because: (1) Plaintiff failed to exhaust administrative remedies; (2) Plaintiff’s breach of fiduciary duty claim dismissed because the “alleged harms can be compensated by money damages and Plaintiff has not sought any equitable relief that would distinguish her 502(a)(3) claim from her 502(a)(1)(B) claim.”)

FACTS: Benson sought ERISA-governed dental benefits after a biking accident. The Plan stated she would be reimbursed “only [for those]… costs beyond what Medicare would have paid, whether or not [she] file[d] claims with Medicare[.]” Benson knew she had to file an appeal within 60 days of receiving the denial letter.  Benson filed an appeal on the 66th day after denial of her claim.

DISTRICT COURT HELD:

  1. “[A] failure to exhaust ERISA administrative remedies is not jurisdictional, but is an affirmative defense.”  Op. at 13.
  2. “A clamant may be excused from exhaustion where pursuing a claim through administrative means would be futile.”  Op. at 14.
  3. Tiffany argued Benson failed to submit her First-Level Appeal or Second-Level Appeal…”within the time periods [60 days] required under the 2017 Plan.”  Op. at 16.
    • The Court concluded Benson had adequate notice of the appeal timeline requirements.  60 day time limits for appeals are reasonable.  Non-plan letters providing an explanation that appeal “must” be submitted in 60 days are sufficient to meet ERISA requirements.  Op. at 21.
    • The Court concluded a denial letter stating “that Plaintiff  ‘may request a second level review’  does not render exhaustion optional.”  Op. 23, n. 17 (italics in original; underscore added).
    • The Court stated: “[W]here a plaintiff failed to timely pursue ‘available and open’ administrative remedies, courts have found that ‘the plaintiff cannot later claim futility based on her inability to pursue those remedies any longer.’”  Op. at 24-25.
    • The Court rejected application of equitable tolling to extend the deadline for her Second-Level Appeal. “[E]quitable tolling is only appropriate in ‘rare and exceptional circumstances’ such as ‘where a plaintiff was unaware of his or her cause of action due to misleading conduct of the defendant, or where a plaintiff’s medical condition or mental impairment prevented her from proceeding in a timely fashion.”  Op. at 28.
    • “[M]ere administrative inconvenience, without more, is insufficient to demonstrate that some ‘extraordinary circumstance stood in [Plaintiff’s] way’ and prevented timely filing.” Op. at 29.
    • Even though “there may have been missteps in UHC’s handling of Plaintiff’s claims and appeals,” Plaintiff must prove these missteps “were more than inefficiencies [and that] they were preventable.”  Op. at 30.

4. The Court dismissed the breach of fiduciary duty claim, stating:

    • “[T]he law is clear that a 502(a)(3) claim cannot exist solely as a second route to the damages sought under 502(a)(1)(b).”  Op. at 33.
    • “‘[A] review of the [ERISA] legislative history confirms that Congress did not contemplate that [the] phrase [equitable relief] would include an award of money damages’.”  Op. at 33 (Emph. added).
    • “Plaintiff’s alleged harms can be compensated by money damages and Plaintiff has not sought any equitable relief that would distinguish her 502(a)(3) claim from her 502(a)(1)(B) claim.”  Op. at 35.

What happens when the ERISA claimant files suit after the disability claim has been denied, and then the ERISA claims administrator reinstates benefits retroactively?

Doesn’t reinstatement “moot” the issues in the lawsuit, or make claims regarding future benefits unripe — requiring dismissal of the suit? YES it should.

And a Plaintiff’s decision to continue the case after reinstatement may expose the plaintiff to an award of attorney fees to the defendant.

The procedural history is actually more important than the final holding in this new case:  Peer v. Liberty-Life Insurance Company, __ F.3d __, 2021 WL 1257440 (11th Cir. April 6, 2021)(District court awarded defendant attorney fees, to be paid by plaintiff’s attorney, after plaintiff’s attorney refused to dismiss case after reinstatement.  Reinstatement eliminated any justiciable controversy. The Court of Appeals reversed and remanded solely on the basis that the district court could impose fees only against a party, and not her attorney.)

FACTS: Peer sought ERISA-governed disability benefits. After Liberty Life determined Peer was not disabled from “any occupation” Peer brought suit seeking (1) waiver of premium, (2) a “clarification of her right to future benefits,” and (3) “a reasonable claims procedure going forward.” After suit was filed, Liberty Life “gave up,” reinstating coverage and the waiver of premium benefit retroactive to the original termination date.

Liberty Life reasonably thought that its decision to put Peer back on claim should have resolved all issues, and told the court the remaining issues on the pending motion for summary judgment were moot. The court concluded that each remaining issue was rendered moot by the reinstatement of coverage or was “confusingly intertwined” with the mooted issues.

Peer then amended her complaint twice, incorporating by reference 46 paragraphs from her original complaint. The district court concluded: (1) “Peer has already received the relief that she seeks; (2) ‘there is no further relief that the Court can award [Peer]’; and (3) any claim for adjudication of the right to future benefits was unripe.”

The district court later awarded Liberty Life attorney fees incurred “for any work performed after the reinstatement of Peer’s policy, including fees for litigating the appeal.”

The Court required Peer’s attorney to pay the fees in part because Plaintiff’s counsel “had 30 years of ERISA experience and ‘should have known that [Peer’s] case was moot and that there was no further justiciable controversy between the parties.”  Peer appealed.

11th CIRCUIT HELD:

  1. ERISA provides that “the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.”  Op. at 6
  2. As a matter of first impression, the Court concluded that a court does not have discretion “to require an attorney to pay another party’s fee.”  Op. at 6 (emphasis in original).
  3. The ruling, that an attorney fee award cannot be assessed against the attorney,  “comports with the longstanding rule that clients are responsible for the actions of their lawyers, not the other way around.”  Op. at 11.
  4. The Court concluded the district court abused its discretion in assessing fees against Plaintiff’s counsel because ERISA does not allow the court to impose fees against the party’s attorney. The Court remanded the case for proceedings consistent with the opinion.

You know that claims administrators retain experts to review a claimant’s medical and mental health condition to assess whether a claimant is sufficiently impaired to be eligible for disability benefits.

But what happens when the claimant argues that a medical opinion should be rejected due to the sheer volume of opinions the expert has provided in other matters? And what discovery is allowed to examine that issue?

Here’s the recent case of Adkins v. Life Insurance Company of North America, __ F. Supp. 3d __ (E.D. WA., March 1, 2021)(attaching discovery Order denying discovery, and Order granting judgment in favor of Life Insurance Company of North America).

 FACTS:  Adkins, an office manager in a medical office, sought ERISA-governed disability benefits for cervical spine pain, and alleged cognitive deficiencies resulting from multiple automobile accidents.  LINA granted benefits through her recovery from spinal surgery.  But after LINA had two neurosurgeons and two mental health experts review the claim, LINA concluded Adkins could perform her sedentary job. Adkins appealed, and LINA had psychologist Dr. Elana Mendelssohn review the mental health records.  She concluded Adkins was not cognitively disabled.

Adkins sued seeking benefits and a surcharge and injunctive relief under (a)(3). Adkins fiercely attacked the credibility of psychologist Dr. Mendelssohn, entering a series of unrelated cases into the record to assert Dr. Mendelssohn had a bias against claimants.

DISTRICT COURT HELD: DISCOVERY OF MEDICAL EXPERT DENIED; JUDGMENT IN FAVOR OF LINA ON BENEFIT CLAIM; FIDUCIARY CLAIM DISMISSED

ISSUE I:  Discovery about Dr. Mendelssohn’s opinion history denied as being too expensive. Adkins sought information from LINA that would require LINA to review “every claim file during the relevant time at issue.”  The Court found such discovery was “too expensive and burdensome” given that such information could be more easily obtained from Dr. Mendelssohn’s employer.  Opinion on Reconsideration, at  3.

ISSUE 2: The Court rejected Plaintiff’s challenges to Dr. Mendelssohn’s credibility merely because she had reviewed many disability claims.  “Plaintiff’s allegations of Dr. Mendelssohn’s bias are unpersuasive. Plaintiff points to the sheer volume of reviews Dr. Mendelssohn conducts for insurance companies to support her argument. However, the fact that Dr. Mendelssohn conducts a significant number of insurance claim reviews is insufficient on its own to demonstrate bias. … Plaintiff has not proffered any evidence to demonstrate Dr. Mendelssohn is biased against Plaintiff in particular or that Dr. Mendelssohn’s findings in favor of insurance companies are directly tied to a financial incentive (e.g., her pay is increased for favorable determinations or her pay is contingent solely upon favorable determinations).”  Op. Granting LINA’s Motion for Judgment, at 24.

The Court distinguished other published cases involving other claimants, where courts were critical of Dr. Mendelssohn’s opinions regarding other claims. Op. at 24-26.

ISSUE 3.  The Court gave a good list why experts’ reports submitted by claimant lacked credibility:

  • Claimant’s 2018 psychologist report and opinion was contrary to the medical record.  Op. at 20;
  • Claimant’s treating physician’s opinions on impairment were not consistent with treatment notes, which showed claimant in better condition.  Op. 20-1; and
  • Claimant’s second psychologist mistakenly relied upon flawed assumptions found in the first expert’s report. Op. at 22.

ISSUE 4. ERISA “breach of fiduciary duty” claims fail if the underlying disability claim is affirmed.  “As Plaintiff acknowledged during the telephonic hearing, her claim for breach of fiduciary duty is likely contingent upon the success of her claim for award of benefits under 29 U.S.C. § 1132(a)(1)(B). Having determined Plaintiff is not entitled to an award of benefits under § 1132(a)(1)(B), the Court finds additional discovery pertaining to her claim for breach of fiduciary duty is unnecessary as her claim under § 1132(a)(3) will likely fail. See, Wise v. MAXIMUS Fed. Servs., Inc., 478 F. Supp. 3d 873, 897 (N.D. Cal. 2020); Talbot v. Reliance Standard Life Ins. Co., No. CV-14-00231-PHX-DJH, 2018 WL 10419233, at *20 (D. Ariz. Feb. 7, 2018), aff’d, 790 F. App’x 129 (9th Cir. 2020); Mullin v. Scottsdale Healthcare Corp. Long Term Disability Plan, No. CV-15-01547-PHX-DLR, 2016 WL 107838, at *3 (D. Ariz. Jan. 11, 2016).”  Order on Reconsideration, at 4.

You know that claimants seeking ERISA-governed benefits sometimes assert “breach of fiduciary” duty claims under ERISA Section 502(a)(3)(b).

This case highlights some arguments that can be used to defeat breach of fiduciary duty claims. Staropoli v. Metro. Life Ins. Co., 465 F. Supp. 3d 501 (E.D. Pa., June 8, 2020).

Key takeaways:

  • To be a proper defendant in a breach of fiduciary duty claim the entity must do more than merely “ministerially apply[] the unambiguous neutral rules of the plan.”
  • “‘[A] fiduciary has a legal duty to disclose to the beneficiary only those material facts known to the fiduciary but unknown to the beneficiary, which the beneficiary must know for its own protection.’”
  •  A claims administrator owes no fiduciary duty to an insured when it “was not a fiduciary at the time of a triggering event and had no knowledge of the triggering event.”

FACTS: Staropoli sought ERISA-governed supplemental death benefits after her former husband (they divorced in 2013) passed away in 2018. Staropoli alleged her two children had been designated as beneficiaries of Mr. Staropoli’s $300,000 in death benefits. MetLife denied the claim because ex-spouses were not eligible for coverage under the policy. Staropoli then sued the plan sponsor, JPMorgan Chase Bank, and MetLife (claims administrator) alleging breach of fiduciary duty, and detrimental reliance claims.

DISTRICT COURT HELD: Breach of Fiduciary Duty Claims Dismissed

  1. JPMorgan Chase Bank was not a proper defendant.  “The proper defendant in an ERISA claim for wrongful denial of benefits is ‘the plan itself or the person who controls administration of benefits under the plan…. Exercising control over the administration of benefits is the defining feature of the proper defendant….’” “[T]he plan documents explicitly limit this authority to the JPMorgan Chase U.S. Benefits Executive as the plan administrator and to MetLife as the claims administrator.” Op. at 6-7.
  2. At best “JP Morgan would have simply been ministerially applying the unambiguous neutral rules of the plan regarding eligibility of spouses,” which is insufficient control to be deemed a fiduciary. Op. at 7.
  3. “…[ERISA] Section 502(a)(1)(b) does not create a private cause of action for breach of fiduciary duty.”  Op. at 9.
  4.  Breach of fiduciary duty claim under ERISA Section 502(a)(3)(b) dismissed.
    • The Court rejected the agency argument. Plaintiff alleged MetLife breached its fiduciary duty in part by virtue of conduct of the “agent” employer, JPMorgan Chase Bank, by misleading Ms. Staropoli that Mr. Staropoli was covered under the policy and accepting premiums for that coverage. Op. at 12.
    • “[S]tate agency law allowing an employer to be deemed agent of an insurer in administering group insurance policies [is] preempted by ERISA because ‘it relates’ to employee benefit plans.” Op. at 13.
    • Applying federal common law governing agency, Ms. Staropoli “failed to explain how the facts alleged demonstrate a relationship between JP Morgan and MetLife that satisfies the elements of federal common law agency.”  Op. at 15.
    • The Court concluded Plaintiff’s amended complaint failed to give the defendants proper notice of the misrepresentation claims. Plaintiffs’ amended complaint also violated Rule 8(a) because it used “a pleading style” in which Plaintiffs’ allegations “jump from alleging conduct of one defendant to allegations that both defendants are liable…. This…prevents necessary deconstruction to discern which allegations [apply to which defendant]…. [Plaintiffs’ misrepresentation allegations] ‘fail to provide Defendants with the requisite notice of their alleged improper conduct, in contravention of Rule 8(a).’” Op. at 18.
    • The Court rejected Plaintiffs’ allegation that MetLife breached its fiduciary duties by failing to disclose post-divorce ineligibility. “[A] fiduciary has a legal duty to disclose to the beneficiary only those material facts known to the fiduciary but unknown to the beneficiary, which the beneficiary must know for its own protection.’” Op. at 20 (Emph. in original).
    • MetLife did not become the claims administrator until three years after the divorce.  “MetLife could not have breached a supposed fiduciary duty to notify Plaintiffs that they no longer qualified for life insurance following the divorce [because] MetLife was not a fiduciary at the time Ms. Staropoli provided notice of her divorce and [because] MetLife had no knowledge of the triggering event that rendered Mr. Staropoli ineligible….”  Op. at 20.
    • “[A]n insurer does not have an independent duty to monitor every insured’s marital status.  Such a system would be entirely unworkable….”  Op. at 22 (Emph. added).
    • The Court rejected Plaintiffs’ allegation that MetLife breached fiduciary duty by failing to notify Plaintiff of the right to convert the group policy to an individual life policy.  MetLife did not know about the divorce.  Op. at 25.
    • The Court rejected Plaintiff’s argument that MetLife should be equitably estopped from denying the claim because MetLife continued to accept premiums. “MetLife can hardly be said to have acted in bad faith or conducted itself insidiously where it was never aware of the triggering event that rendered Mr. Staropoli ineligible for coverage.”  Op. at 26-27.

You know the Ninth Circuit has taken the position that an “employee who cannot sit for more than four hours in an eight hour workday cannot perform ‘sedentary work that requires ‘sitting most of the time.’” Armani v. NW Mut. Life Ins. Co., 840 F.3d 1159, 1163 (9th Cir. 2016) (Emp. added.)

But what if there is evidence in the record (like a job analysis) that the claimant’s job “could be performed by alternating sitting and standing”?

This evidence may be sufficient for the court to sustain a conclusion that the job was not sedentary.  And if the job is not sedentary, then—the claimant could perform her job even though she could not sit for more than four hours in an eight hour workday.

This new case shows that an effective job analysis can help work around the Armani decision…

Perez v. Lincoln National Life Ins. Co., __ Fed. Appx. __ , 2021 WL 195022 (9th Cir. January 20, 2021) (claimant’s payroll specialist position was not sedentary because job analysis showed position “could be performed by alternating sitting and standing.”)

FACTS: Perez was a payroll analyst and sought ERISA-governed disability benefits. She apparently was unable to sit for more than four hours in an eight hour workday. But a job analysis showed she could perform her position by “alternating sitting and standing.”

Lincoln National argued her position was not sedentary and discontinued payment of benefits concluding she could perform this job. Perez sought judicial review contending the district court erred in concluding her payroll analyst job was “not [a] sedentary occupation” and that (2) the court improperly considered credibility evidence in the social security decision.

NINTH CIRCUIT HELD: District Court’s decision denying claim for disability benefits AFFIRMED.

  1. “Where…the district court reviews de novo the denial of benefits, that review must be limited to the administrative record unless ‘circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision.’”  Op. at 4.
  2. A district court’s decision to admit evidence that was not before the administrator is reviewed for abuse of discretion.  Op. at 4.
  3. The Court did not abuse its discretion when it admitted adverse credibility determinations from Perez’s social security decision because…such a decision ‘could not have [been] presented in the administrative process’ and could be ‘particularly important in ERISA cases.’”.  Op. at 4.
  4. “‘Factual findings in one case ordinarily are not admissible for their truth in another case through judicial notice.’” Op. at 5, citing Nagy v. Group Long Term Disability Plan for Employees of Oracle Am., Inc., 739 F. Appx. 366, 367 (7th Cir. 2018).
  5. “Perez’s failure to oppose admission of the social security decision before the district court amounts to waiver of the argument on appeal.” Op. at 5.

Some of the more challenging disability claims involve impairment resulting from Chronic Fatigue Syndrome.  There are no tests for Chronic Fatigue Syndrome, and the impairment assessment often relies heavily on self-reported symptoms and…the credibility of the claimant and the treating physician.

But there are distinct ways to help the court assess these claims. This new case provides a helpful playbook of arguments to make in assessing chronic fatigue, or self-reported, disability types of cases. Lukianczyk v. Unum Life Ins. Company of America, 2020 WL 7122007 (E. D. Cal. December 4, 2020)(chronic fatigue syndrome case: “While there can be little doubt that plaintiff suffers from medical conditions that impair her to some degree, there is insufficient evidence to persuade the court that plaintiff was disabled…”)

FACTS: Lukianczyk, an accountant, sought ERISA-governed disability benefits primarily due to “fatigue” related to rheumatoid arthritis, chronic fatigue syndrome, sleep apnea and generalized anxiety disorder. Treating physicians initially stated Plaintiff was disabled because she “was unable to stay awake more than two hours at a time” and could not operate a computer. Plaintiff was able, however, to attend a wedding in Las Vegas, take long driving trips, and a cruise to Mexico, but she claimed she “slept a lot.”

During the review process, Plaintiff’s treating physician later agreed with a Unum peer review that Plaintiff could work in her own occupation. After Unum denied the claim, Lukianczyk appealed, submitting revised opinions by her treating physician, a Functional Capacity Exam, and reports from other rheumatologists indicating she was unable to perform her occupation.

ISSUE: Whether Plaintiff established her fatigue rendered her disabled?

DISTRICT COURT HELD: NO. “While there can be little doubt that plaintiff suffers from medical conditions that impair her to some degree, there is insufficient evidence to persuade the court that plaintiff was disabled…” Op. at 12

  1. “While there are no test[s] for chronic fatigue syndrome, ‘there are a variety of tests and evaluations designed to measure an individual’s cognitive, psychological, and physical functioning.’” Op. at 20.
  2. “While…evidence supports plaintiff’s diagnoses of rheumatoid arthritis and chronic fatigue syndrome during the relevant time frame, it does little to confirm her contention that it was disabling.”  Op. at 21-22.
  3. “Courts ‘have held it unreasonable to reject Plaintiff’s treating/examining physician’s notes of Plaintiff’s self-reporting and subjective observations…where, as here…the applicable Plan does not restrict the type of evidence that may be used to demonstrate disability.’”  Op. at 23.
  4. “The credibility of the opinions of physicians and the weight to be accorded to those opinions ‘turns not only on whether they report subjective complaints or objective evidence of disability but on (1) the extent of patient’s treatment history, (2) the doctor’s specialization or lack thereof, and (3) how much detail the doctor provides supporting his or her conclusions.’”  Op. at 25.
  5. “‘[T]he prospect of receiving disability benefits based on an ailment whose extent is objectively unverifiable provides a strong incentive to falsify or exaggerate…assessment of the claimant’s credibility thus becomes exceptionally important in such cases.’”  Op. at 26.
  6. Lukianczyk’s activities were incongruous with the reported severity of her symptoms. She drove 12 hours to Utah, traveled to Grand Teton National Park, and took lengthy road trips to San Diego and Las Vegas.  Op. at 26-27.
  7. “‘Courts discredit a plaintiff’s subjective belief that she is disabled if she refuses treatment or is not diligent in following a treatment plan that could alleviate her symptoms.’”  Op. at 27.  The court found she was not compliant with treatment plans.
  8. A claimant’s credibility will be viewed as negative when the claimant’s alleged symptoms around the time of the elimination period are “not entirely consistent” with complaints during the appeals process. “[V]acillating explanations cast a negative light on plaintiff’s credibility….”  Op. at 30.
  9. “The fact that plaintiff did not take large amounts of sick leave casts doubt upon her reports to both Unum and [her treating physician] where she stated she needed  to be on long term disability because ‘she has to call in [sick] so often….’”  Op. at 30-31.
  10. The court did not find narrative statements (provided by claimant and her husband) persuasive because “plaintiff’s narrative…at times directly contradict contemporaneous statements [she] made to her physicians.” Op. at 32.
  11. “‘[T]he mere existence of an impairment is insufficient proof of disability.’” Op. at 35.

Best holiday wishes!

You know that typically claimants seeking ERISA-governed benefits make claims for recovery under Section 1132(a)(1)(B).

Now you are likely seeing more simultaneous assertions of equitable claims for breach of fiduciary duty and disgorgement under Section 1132(a)(3). A successful claimant asserting this theory may recover additional forms of monetary relief, and may get broader discovery.

But the availability of relief under Section 1132(a)(3) claims is narrow: a claimant may pursue a Section 1132(a)(3) claim “only where the [equitable] claim is based on an injury separate and distinct from the denial of benefits or where the remedy afforded by Congress…is otherwise shown to be inadequate.”

So, how do you defend Section 1132 (a)(3) equitable claims? This new case highlights the point: Davis v. Hartford Life & Accident Insurance Company, __F. 3d__, 2020 WL 6789448 (6th Circuit November 19, 2020)(attached) Section 1132(a)(3) claims dismissed).

FACTS: Davis sought ERISA governed short and long term disability benefits due to back pain, neuropathy and fatigue due to multiple myeloma. Hartford approved short term and long term disability.

The treating physician (Dr. Reddy) then reported in September 2012 that Davis had continued restrictions; but also stated that Davis was clinically stable and able to perform sedentary work. Hartford conducted surveillance, interviewed Davis, and had an orthopedist conduct an independent medical exam (IME). The IME report, which concluded Davis could perform sedentary work, was also sent to Dr. Reddy for comment. Dr. Reddy did not respond to the request for comment on the IME report.

After Hartford discontinued benefits, Davis appealed. Hartford then obtained a review by a pain management specialist and an internist. Both concluded Davis could perform sedentary work. An employability analysis also identified five occupations that aligned with the “Any Occupation” definition. Hartford denied the appeal and Davis sued, alleging among other claims, “breach of fiduciary duty and disgorgement” claims.

ISSUE: Whether claims for breach of fiduciary duty and disgorgement should be dismissed?

6TH CIRCUIT COURT OF APPEALS HELD: YES.

  1. “Section 1132(a)(3) permits a plan participant to file suit ‘to enjoin any act or practice which violates [ERISA] or the terms of the plan’, or ‘to obtain other appropriate relief (i) to redress such violations or (ii) to enforce any provisions of [ERISA] or the terms of the plan.’” Op. at 12.
  2. “[T]he availability of relief under Section 1132(a)(3) claims is narrow: a claimant may pursue a Section 1132(a)(3) claim ‘only where the [equitable] claim is based on an injury separate and distinct from the denial of benefits or where the remedy afforded by Congress…is otherwise shown to be inadequate.’” Op. at 12.
  3. “The upshot is that Davis fails to show that his fiduciary duty claim is based on an injury distinct from his contract claim.” Op. at 12.
  4. Purported examples to support the fiduciary duty claim included allegations that Hartford personnel “‘systematically delay[ed] claim decisions”, “automatically accepted[ed] the opinions of Hartford’s paid medical reviewers”, and “did not seek to reach an accurate decision.” Op. at 12.
  5. “As these are conclusory allegations without factual support we need not accept them as true.” Op. at 12.
  6. The Court also rejected the disgorgement claim. Davis alleged that Hartford “accumulated earnings on the plan benefits otherwise payable to Davis.” “But this too is not a distinct injury from the termination of Davis’s benefits.” Op. at 12-13.
  7. “’[I]n an action for wrongful denial of benefits, like this one, the denial of benefits necessarily results in a continued withholding of benefits until the denial is either finalized or rectified.’…As a result, ‘[t]he denial is the injury and the withholding is simply ancillary thereto…Together they comprise a single injury.’” Op. at 13.
  8. The Court also concluded Davis failed to show that remedies under Section 1132(a)(1)(B) were inadequate. Davis failed to show a separate injury for his breach of fiduciary duty claim. And Section 1132(a)(1)(B) “provides an adequate remedy for Davis’s disgorgement claim.” Op. at 13.
  9. “[W]here an avenue of relief for the injury [is] unavailable under Section 1132(a)(1)(B), ‘irrespective of the degree of success obtained,’ a breach-of-fiduciary-duty claim cannot be brought.’” Op. at 13. “As Davis plainly was able to avail himself of such a remedy, his equitable claims under Section 1132(a)(3) were properly dismissed.” Op. at 13.
  10. While the U.S. Supreme Court Amara case allowed participants to seek equitable relief under Section 1132(a)(3), the case is distinguishable from this case because the claimants in Amara were not otherwise authorized to seek relief under Section 1132(a)(1)(B) for “CIGNA’S misrepresentations about its ERISA plan.” Op. at 13-14.

KEY TAKE AWAYS

Section 1132(a)(3) permits a plan participant to file suit ‘to enjoin any act or practice which violates [ERISA] or the terms of the plan’, or “to obtain other appropriate relief (i) to redress such violations or (ii) to enforce any provisions of [ERISA] or the terms of the plan.”

  1. Be strategic on when to seek dismissal of the Section 1132(a)(3) claim. While it may be satisfying to file an early motion to dismiss, some courts are reluctant to grant motions at this stage because it is difficult to discern whether the claims are duplicative rather than alternative. It may be more strategic to seek dismissal at the dispositive motion stage. For additional thoughts, read this article.

    ERISA: Winning Early Motions to Dismiss Breach of Fiduciary Claims — the Ministerial Defense

  2. Stress the available remedies under Section 1132(a)(1(B). Plaintiff must prove that remedies under Section 1132(a)(1)(B) are:
    -inadequate and
    -the injury asserted is “separate and distinct from the denial of benefits.” As the Davis v Hartford case above shows, courts are receptive to these arguments.
  3. Consider seeking to limit remedies to the plan terms. U.S. Airways v. McCutchen, 133 S. Ct. 1537, 1548 (2013). Language in the McCutchen may support an argument that a participant who loses the benefits claim cannot recover, through equitable relief, a benefit never authorized under the plan terms.