The Friday Five: Five Current ERISA Litigation Highlights - February 2023

This month’s Friday Five covers cases relating to potential impacts of COVID-19, full and fair review of the claim file, an attempt to use an insurer’s internal policy against itself, and a “second bite at the apple” by amending a complaint for denial of benefits to include a claim for breach of fiduciary duty.

1. Eastern District of Michigan Gives Weight to Plaintiff’s “Self-Reported” Pain and Opinions by Treating Physicians. The plaintiff—a physician—submitted a claim for long-term disability (LTD) benefits due to spinal pain and the cognitive effects of medication to treat the spinal pain. The insurer denied the plaintiff’s claim based on file reviews by two board-certified physicians and a third review by the insurer’s Designated Medical Officer. The plaintiff appealed and a fourth review was conducted, this time by a physician board-certified in family, occupational, and aerospace medicine. The fourth reviewer concluded the plaintiff was able to work as a physician, noting, among other things, that the plaintiff’s “level of treatment” was not consistent with the “severe level of impairment” the plaintiff reported. The plaintiff responded, asserting that more aggressive treatments were made impossible by the COVID-19 pandemic (the fourth review was issued in April 2020). According to the court, the insurer’s final denial “relied heavily” on the fourth reviewer’s report. Upon review, the court found the plaintiff was indeed disabled, due more to the cognitive requirements of his duties as a physician, and less due to the physical requirements. It gave the plaintiff’s self-reported level of pain “considerable weight,” which the Sixth Circuit found is appropriate where the claimant’s “subjective level of pain is well-documented” and the claimant “has been consistent in reporting that his pain is debilitating and increasing.” (quoting Bruton v. Am. United Life Ins. Corp., 798 F. App'x 894, 904 (6th Cir. 2020)). Moreover, the court did not find the conclusions of the “[insurer’s] file reviewers” to be persuasive because their reviews were based “solely on reviews of [the plaintiff’s] file, rather than on in-person medical examinations[.]” The court also noted the fourth reviewer’s failure to address “the fact that, by March of 2020, certain pain management options were not available due to the COVID-19 pandemic—a fact highlighted by both Plaintiff and his doctors.” Ultimately, the court found the “conclusions of [the insurer’s] file reviewers ... are insufficient to overcome the opinions of the doctors who examined, treated, and diagnosed [the plaintiff]” and granted the plaintiff’s motion for judgement on the record. Carney v. Unum Life Ins. Co. of Am., 596 F. Supp. 3d 845 (E.D. Mich. 2022).
2. Western District of Washington Finds Plaintiff Entitled to LTD Benefits for Symptoms Possibly Caused by “Long COVID.” In April 2020, the plaintiff—a trial lawyer—began experiencing fevers, “severe fatigue,” and “mental fogginess.” An insurer denied his claim for LTD benefits finding impairment was not supported for the elimination period. After receiving the denial, the plaintiff saw seven different medical doctors; three diagnosed him with “long COVID” and four diagnosed him with chronic fatigue syndrome. The insurer challenged the diagnoses and the court acknowledged that the insurer “may be right on that score,” noting the lack of evidence to support the diagnoses. Nevertheless, the court explained it had not been tasked with assessing the accuracy of the plaintiff’s diagnoses; the question before the court was whether the plaintiff met his burden of establishing disability, and the court found that he had. “If Plaintiff cannot follow movie plots and suffers daily fevers, Plaintiff cannot be expected to plan out trial strategies for multiple, complex cases.” (record citations omitted). Additionally, the court was persuaded by the plaintiff’s financial circumstances since the onset of symptoms: “If Plaintiff were able to work, then he would have done so prior to selling his home and exhausting his savings. Instead, Plaintiff remains housebound and unemployed.” Accordingly, the court concluded the plaintiff was entitled to LTD benefits. Abrams v. Unum Life Ins. Co. of Am., No. C21-0980 TSZ, 2022 WL 17960616 (W.D. Wash. Dec. 27, 2022).
3. Seventh Circuit Reverses Insurer-Friendly Summary Judgment Ruling, and Remands Case for Full and Fair Review of Plaintiff’s Claim. The plaintiff asserted the insurer failed to afford him a full and fair review of the decision denying his disability claim because the insurer did not provide him with a consulting physician’s medical review report on which the insurer relied in rejecting the plaintiff’s appeal. Under the 2002 version of the Department of Labor’s regulations for claims procedures, the insurer was required to provide the report to the plaintiff only upon request. However, the regulations, as amended in 2018, “demand more of a plan administrator” and require the insurer to provide “any new or additional evidence” regardless of whether the plaintiff requests it. The Western District of Wisconsin granted summary judgment in the insurer’s favor, finding the 2018 amendments did not apply. The Seventh Circuit, however, found the plaintiff’s claim did not fall into any of the 2018 amendment’s exceptions. The insurer’s failure to provide the report to the plaintiff “sufficiently in advance” of its final determination “simply was not the ‘full and fair review’ ERISA requires.” Zall v. Standard Ins. Co., 58 F.4th 284 (7th Cir. 2023).
4. District of Rhode Island Rejects Plaintiff’s “Alternative” Theory for Invoking ERISA. To avoid running afoul of his group disability policy’s three-year limitations period, the plaintiff argued the plan at issue was an ERISA plan and thus, his claim was timely. The court rejected the plaintiff’s argument because he “produced no evidence at all showing that his employer at the time of his disability had created, offered, or administered the disability plan.” The plaintiff advanced an alternative theory to argue that ERISA applied, relying on an unusual resource:  the insurer’s own internal policies. He pointed to language in the insurer’s appeals process policy stating ERISA procedures are “consistent with [the insurer’s] group claim philosophy” and directing its employees to “apply these [ERISA claims] procedures to both ERISA controlled cases, and to non-ERISA cases.” However, because the plaintiff cited no legal authority requiring the insurer to treat the plaintiff in accordance with its internal policies, the court found it could not “enforce those voluntary guidelines against [the insurer] in favor of [the plaintiff]” and granted the insurer’s motion for summary judgment. Smith v. Prudential Ins. Co. of Am., No. 1:21-cv-00121-MSM-LDA, 2023 WL 355915 (D.R.I. Jan. 23, 2023).
5. Eastern District of New York Allows Second Bite at the Apple Where Plaintiff Seeks to Remove Plan Fiduciary. The plaintiff sought to amend his complaint to add an allegation that the insurer breached its fiduciary duty and should be removed as claim administrator from the plan. The insurer argued that the plaintiff should not be permitted to amend the complaint because the new allegation would not withstand a motion to dismiss and thus, was futile. The court acknowledged that generally, courts should “prevent plaintiffs from having two bites at the apple” by “[repackaging]” a denial of benefits claim as a claim for breach of fiduciary duty. However, it distinguished the plaintiff’s request to add a breach of fiduciary duty claim because of the remedy the plaintiff sought: “[h]ere, rather than seek monetary relief for his breach of fiduciary duty claim Plaintiff is seeking the removal of [the insurer] as plan fiduciary.” The court determined the new claim could withstand a motion to dismiss and granted the plaintiff’s motion to amend the complaint. McQuillin v. Hartford Life & Accident Ins. Co., --- F. Supp. 3d ----, No. 20CV2353JSARL, 2023 WL 177909, at *3 (E.D.N.Y. Jan. 13, 2023).