Pursuing a disability claim when one is functionally impaired by symptoms related to fibromyalgia can be difficult. That’s because plan administrators will insist upon “objective evidence” of disability and deny that corroborated “subjective” complaints meet the disability plan’s requirements. For a long time, courts appeared to be agreeing with plan administrators that symptoms from fibromyalgia were not disabling, or at least that there wasn’t enough objective evidence to establish disability. See e.g., Pralutsky v. Metro. Life Ins. Co., 435 F.3d 833 (8th Cir. 2006); Johnson v. Metro. Life Ins. Co., 437 F.3d 809 (8th Cir. 2006); Ianniello v. Hartford Life & Acc. Ins. Co., 508 F. App’x 17 (2d Cir. 2013); Meraou v. Williams Co. Long Term Disability Plan, 221 F. App’x 696 (10th Cir. 2007)
Fortunately, in the past several years, courts are becoming keenly aware of how debilitating fibromyalgia can be and how the nature of the condition does not lend itself to traditional forms of “objective” evidence. See Holmstrom v. Metro. Life Ins. Co., 615 F.3d 758, 769 (7th Cir. 2010); Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666 (9th Cir. 2011); Kennedy v. Lilly Extended Disability Plan, 856 F.3d 1136 (7th Cir. 2017). This week’s notable decision is a good case to add to this (hopefully) growing body of caselaw.
In Kamerer v. Unum Life Ins. Co. of Am., No. 15-CV-40146, __F.Supp.3d__, 2018 WL 4539693 (D. Mass. Sept. 21, 2018), Kamerer stopped working in 2004 due, at least in part, to symptoms related to fibromyalgia. When her symptoms failed to improve, Kamerer sought treatment at the Mayo Clinic where her diagnosis of fibromyalgia was confirmed. She also received treatment for depression. Unum approved and paid her long term disability claim for nearly ten years before its medical department conducted a file review and determined that she could return to her job as a Systems Project Manager. Kamerer’s doctors provided statements in support of her claim and so Unum arranged for an in-person evaluation which ultimately came out against her.
On de novo review of Unum’s decision, the court considered the question of whether Plaintiff can perform the duties of her profession within the national economy, not just her specific duties with her employer. Thus, Kamerer had the burden of demonstrating at least one of the following: “(1) She cannot exert up to 10 pounds of force occasionally and a negligible amount of force frequently to move objects; or (2) That she cannot work while sitting most of the time, although the job might include walking or standing for brief periods; or (3) That she cannot work in an occupation that mandates travel, the frequency of which would be job specific.”
With respect to the type of proof required, the court explained that it can find that a claimant satisfies her burden of proof of disability by the totality of the evidence even if there is no objective evidence that her symptoms preclude her from fulfilling the physical requirements of her occupation. The court disagreed with Unum that there was no objective evidence where numerous doctors found that Plaintiff tested positively for many fibromyalgia tender points. There was also an overwhelming amount of subjective evidence credited by medical professionals. The court found that the Plaintiff could not perform her occupation of Systems Project Manager given her credible complaints of pain and medication side effects.
With respect to the plan’s mental health limitation, the court noted that “the issue of whether it is the insured or the insurer who bears the burden of proving that a limitation does or does not apply remains unsettled.” The court found that the better approach is to shift the burden to Unum, such that it is Unum’s burden to prove that the mental illness limitation in the disability policy applies to Plaintiff’s claim. In this case, Unum has not demonstrated by the preponderance of the evidence that Plaintiff’s depression is a but-for cause of her physical disability. For these reasons, the court granted summary judgment to Kamerer and ordered her benefits to be reinstated.
Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.
Johnson v. The Guardian Life Insurance Company of America, No. 3:16-CV-1141 (MPS), 2018 WL 4623025 (D. Conn. Sept. 26, 2018) (Judge Michael P. Shea). The court previously “found serious procedural defects in Guardian’s decision-making process” and “remanded the case to Guardian to properly consider all of the medical evidence, re-evaluate its disability determination, and provide a fuller explanation of its conclusions.” Based on this and the weighing of the Chambless factors, Plaintiff is entitled to attorneys’ fees and costs. The court awarded a total of $47,416.35 in fees and costs based on the hourly rate of $375 for Plaintiff’s attorney and $100 for the paralegal.
Bommarito v. Nw. Mut. Life Ins. Co., No. 2:15-CV-1187 WBS DB, 2018 WL 4657243 (E.D. Cal. Sept. 26, 2018) (Judge William B. Shubb). Following the court’s grant of partial summary judgment to Northwestern Mutual, Defendant submitted a bill of costs totaling $13,541.14, to which Plaintiff objected. The court determined that Defendant was the prevailing party and it exercised its discretion to award costs. The court reduced the costs for various reasons to $7,668.05.
Breach of Fiduciary Duty
Bekker v. Neuberger Berman Group LLC, No. 16 CV 6123-LTS-BCM, 2018 WL 4636841 (S.D.N.Y. Sept. 27, 2018) (Judge Laurataylor Swain). In this lawsuit alleging breach of fiduciary duty related to the maintenance of a particular investment fund, the court granted Defendants’ motion to dismiss the Complaint as against all Defendants except the Investment Committee. The court also dismissed Plaintiff’s breach of fiduciary duty claim but denied Defendants’ motion to dismiss the prohibited transaction claim. The court granted Plaintiff’s Rule 56(d) motion insofar as a brief targeted period of discovery will be allowed and denied Defendant’s summary judgment motion without prejudice to renewal after the completion of that discovery.
Disability Benefit Claims
Kamerer v. Unum Life Ins. Co. of Am., No. 15-CV-40146, __F.Supp.3d__, 2018 WL 4539693 (D. Mass. Sept. 21, 2018) (Judge Timothy S. Hillman). See Notable Decision summary above.
Aitken v. Aetna Life Ins. Co., No. 16 CIV. 4606 (PGG), 2018 WL 4608217 (S.D.N.Y. Sept. 25, 2018) (Judge Paul G. Gardephe). The court determined that Aetna violated 29 C.F.R. § 2560.503-1(i) by not making a timely decision on Plaintiff’s appeal. Aetna’s violation was not inadvertent so the court will review Aetna’s determination de novo. In addition, Aetna violated 29 C.F.R. § 2560.503-1(h) by not considering a doctor’s report in its decision-making process. Its failure was not inadvertent and harmless. This also requires the application of de novo review. The court determined that neither side is entitled to summary judgment because “determining whether Plaintiff is disabled based on his alleged need to avoid stress will require weighing physicians’ competing opinions.”
Naphys v. Prudential Insurance Company of America, No. CV 16-1450 (JBS-JS), 2018 WL 4562404 (D.N.J. Sept. 21, 2018) (Judge Jerome B. Simandle). “Plaintiff received 26 months of STD benefits and two years of LTD benefits, the maximum allowed under the Plan for disabilities due in whole or in part to mental illness. Prudential ultimately determined that Plaintiff was not eligible for additional LTD benefits after determining that his physical conditions, including a diagnosis of gastroparesis for which Plaintiff did not seek any treatment between 2012 and March 7, 2014, did not prevent him from working. Prudential made this determination following a lengthy review process of Plaintiff’s medical records involving several doctors and nurses, which involved an independent physician who is board-certified in internal medicine, another physician who is board-certified in internal and occupational medicine, and two separate appeals. The plain language of the Plan clearly grants Prudential full discretion to make all eligibility determinations, and the Court finds Prudential did not abuse this discretion.”
Miller v. Sedgwick Claims Management Services, Inc., et al., No. 2:17-CV-881, 2018 WL 4610515 (S.D. Ohio Sept. 26, 2018) (Judge Kimberly A. Jolson). The court determined that “Defendants’ credibility determinations regarding Plaintiff’s pain, in light of its decision to rely on only Plaintiff’s file and the inherently subjective nature of Plaintiff’s condition, support a finding that Defendants’ process was arbitrary and capricious.” On Defendants’ demand for objective evidence, the court determined that an FCE is a proper form of objective evidence to support an inherently subjective condition like fibromyalgia. Thus, Defendants’ conclusory assertion that Plaintiff’s file lacked objective evidence supports a finding that its decision was arbitrary and capricious. Defendants also arbitrarily disregarded the opinions of Plaintiff’s treating physician and engaged in an inadequate decision-making process. The remedy, in this case, is a remand to the plan administrator.
Ennis v. Aetna Life Ins. Co., No. 3:18-CV-01617-WHO, 2018 WL 4636197 (N.D. Cal. Sept. 24, 2018) (Judge William H. Orrick). The court found good cause to grant Defendants’ motion to seal the portions of their argument and supporting documents that contain Plaintiff’s personal identifiers and confidential medical and health information, which are protected by the Federal Health Insurance Portability and Accountability Act of 1996 and the California Constitution.
Green v. Life Insurance Company of North America, No. 17-1383, __F.App’x__, 2018 WL 4628113 (10th Cir. Sept. 26, 2018) (Before BRISCOE, SEYMOUR, and HOLMES, Circuit Judges). The court affirmed the district court’s decision in favor of LINA. The court determined that LINA made a reasonable and good faith determination that Mr. Green had a pre-existing condition, posterior vitreous detachment, 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 that PVD was a highly probable link to Mr. Green’s ultimate vision loss.” Plaintiff received treatment for his vision problems and the diagnosis of PVD during the look-back period.
Carver et al. v. Bank of New York Mellon, et al., No. 15CV10180JPOJLC, 2018 WL 4579831 (S.D.N.Y. Sept. 25, 2018) (Magistrate Judge James L. Cott). In this putative class action alleging that Defendant breached its fiduciary duty to ERISA plans that held American Depositary Receipts for which Defendant served as a depositary, the court denied Plaintiff’s motion to compel amended responses to Request for Admissions because: (1) Defendant has denied each of the RFAs in question, and, as such, no amended responses are needed; (2) the RFAs in dispute do not conform to the requirements of Rule 36 and the case law construing the Rule because the RFAs do not seek to establish the admission of facts about which there is no real dispute; (3) many of the RFAs use terminology that is either vague, ambiguous, or at a minimum, subject to dispute given that the terms are not specifically defined; (4) at least some of the RFAs improperly seek the ratification of legal conclusions; and (5) the RFAs appear to request that Defendant simply concede essential elements rather than contest them.
Bajrami v. Reliance Standard Life Ins. Co., No. 18-CV-162, __F.Supp.3d__, 2018 WL 4635714 (E.D. Pa. Sept. 27, 2018) (Judge Rufe). The court determined that ERISA does not govern the claim for long-term disability benefits brought by a foreign national working outside of the United States. The policy was delivered in Rhode Island and governed by its laws and/or ERISA. Reliance Standard administered the plan in the U.S. But, Plaintiff was a citizen of the Republic of Kosovo, was employed in Afghanistan, and his actions related to the disability insurance occurred outside of the United States. Absent Congress’s clear manifestation to legislate extraterritorially, the court must presume ERISA is primarily concerned with domestic conditions. Court granted Plaintiff’s motion to remand to state court.
Tellep v. Oxford Health Plans, et al., No. CV 18-392-BRM-TJB, 2018 WL 4590000 (D.N.J. Sept. 25, 2018) (Judge Brian R. Martinotti). Plaintiff, a self-employed working owner of his business who purchased a health insurance plan from Defendants, brought a number of state law claims against Defendants for ceasing coverage of the brand-name medication which he alleges caused his uncontrolled breakthrough seizures. The court found these claims preempted by ERISA because his health insurance plan is an ERISA plan. As a working owner of his business, Plaintiff qualifies as a “participant” under ERISA.
Glastein, M.D. v. Aetna, Inc., Aetna Insurance Company, No. CV 18-9262, 2018 WL 45624672 (D.N.J. Sept. 24, 2018) (Judge Anne E. Thompson). The court determined that the state laws at issue here—breach of contract, promissory estoppel, account stated, and fraudulent inducement—neither “refer to” nor have an “impermissible connection with” an ERISA plan. Thus, Section 514(a) of ERISA does not preempt Plaintiff’s state law claims and the court denied Defendant’s motion to dismiss.
Bd. of Trustees of The IBEW Fund Local No. 82 Pension Fund, et al. v. Bright Street, LLC, et al., No. 3:16-CV-481, 2018 WL 4560828 (S.D. Ohio Sept. 21, 2018) (Judge Walter H. Rice). In this action seeking unfunded employer contributions from a federal common law successor, Defendant Security Fence brought counterclaims of fraud, negligent misrepresentation, conspiracy and abuse of process against Plaintiffs. The court determined that these claims were not pleaded adequately, but “even assuming that Security Fence has alleged sufficient facts in its Amended Counterclaim to comply with Ashcroft v. Iqbal and Bell Atlantic v. Twombly,” “the state law claims of Security Fence’s Amended Counterclaim are preempted by ERISA and that, based on the facts of this case, no federal common law claim in favor of Security Fence exists.”
Exhaustion of Administrative Remedies
House v. Umum Life Ins. Co. of Am., No. 1:17-CV-220, 2018 WL 4604019 (E.D. Tenn. Sept. 25, 2018) (Judge Harry S. Mattice, Jr.). Plaintiff was receiving long term disability benefits when Unum exercised its discretion to request that she undergo an independent medical exam (“IME”) to determine if she continued to be disabled under the policy. Plaintiff attended the exam with a friend who intended to monitor and videotape the exam. The doctor refused to allow her friend to attend and Plaintiff declined to undergo the exam. Plaintiff filed a lawsuit asserting a right under the policy to videotape the IME and to have a witness present. Rather than decide the issue of her contractual right under the policy to have her IME videotaped, the court determined that Plaintiff was required to exhaust her administrative remedies and failed to do so. She also failed to establish that exhaustion would be futile. The court explained that Unum may not have discontinued her LTD benefits for refusing to attend the IME and there are a number of possible outcomes had Plaintiff pursued her internal remedies. The court granted Unum’s motion for summary judgment and dismissed the case without prejudice.
Life Insurance & AD&D Benefit Claims
Goggins v. Huntington Ingalls Industries, No. 1:18CV23-LG-RHW, 2018 WL 4572671 (S.D. Miss. Sept. 24, 2018) (Judge Louis Guirola, Jr.). The deceased’s alleged common-law wife does not have standing to pursue her case because she has not submitted any evidence or testimony indicating that she was designated as a beneficiary; rather, the administrative record indicates that the insured designated his sons as beneficiaries. The lawsuit is dismissed for lack of jurisdiction.
Christopoulos v. Trout et al., No. 15 CV 3466, 2018 WL 4563050 (N.D. Ill. Sept. 24, 2018) (Judge Joan B. Gottschall). The court determined that a nunc pro tunc Qualified Domestic Relations Order must be enforced and the insured’s named beneficiaries are not entitled to the life insurance proceeds. It is of no moment that the final judgment dissolving the marriage was not entered before the insured’s death. The equitable defense of laches does not apply to minors so the court denied the beneficiaries’ request to conduct discovery on this defense.
Medical Benefit Claims
Shah, M.D. v. Horizon Blue Cross Blue Shield of New Jersey, No. CV 17-1574, 2018 WL 4629515 (D.N.J. Sept. 27, 2018) (Judge Joseph H. Rodriguez). The court granted summary judgment to Blue Cross, where the plan in question provides that “reimbursable allowances are calculated based on 250% of the value that Medicare would pay for the same service” and that is the amount Defendant paid Plaintiff.
Stacy S. v. The Boeing Company Employee Health Benefit Plan, No. 1:15-CV-72, 2018 WL 4600652 (D. Utah Sept. 25, 2018) (Judge Robert J. Shelby). Applying the arbitrary and capricious standard of review, the court determined that ValueOptions’ refusal to cover care at a residential treatment center had a reasonable basis. “The criteria for admission to RTC services and continued stay are highly subjective. ValueOptions’ determination that M.K. did not meet these criteria relied on the physicians’ well-detailed reports about M.K.’s history of treatment and other available options.”
E.G. V. Companion Benefit Alternatives, Inc., No. CV 18-0265-WS-MU, 2018 WL 4623653 (S.D. Ala. Sept. 26, 2018) (Judge William H. Steele). In this dispute over the payment of residential mental health treatment, the court held that “[b]ecause the de facto plan administrator doctrine does not apply to third-party administrative services providers in this Circuit, plaintiff’s Amended Complaint does not state cognizable ERISA claims against CBA.”
Pleading Issues & Procedure
Ojeda-Resto v. Blankenship, et al., No. CV 17-1978 (GAG), 2018 WL 4657191 (D.P.R. Sept. 26, 2018) (Judge Gustavo A. Gelpi). “Plaintiffs’ Amended Complaint alleges that Defendant’s violated the duty of prudence and loyalty required under ERISA. Specifically, they make five distinct allegations. Succinctly stated the allegations are as follows; (1) that the Welfare Fund has been operated and managed in “total obscurity,” and that Defendants have “refused to provide participants with copies of the full annual financial reports,” (2) Defendants have modified plan eligibility requirements without notifying participants, (3) that “unauthorized and/or illegal disbursements” have been made, (4) the purchase of health benefits to individuals who are ineligible, and (5) excessive administrative expenses and payments that Defendants “have made and/or contemplate to make,” all actions which Plaintiffs contend depleted the Welfare Fund. While this may satisfy Article III constitutional standing requirements, Plaintiffs’ allegations, taken as true, are insufficient to establish proximate cause. Plaintiffs’ Amended Complaint lacks sufficient factual basis for all five alleged violations.” (internal citations omitted).
IHC Health Services, Inc. v. Hilton Domestic Operating Company. Inc., No. 2:17-CV-1286, 2018 WL 4621768 (D. Utah Sept. 26, 2018) (Judge David Nuffer). Plaintiff, a medical provider, sought to file a Second Amended Complaint to substitute the plan beneficiary as the plaintiff following notice of an anti-assignment provision in the beneficiary’s plan. The court granted the motion and rejected Defendants’ arguments that “(1) the statute of limitations has expired and the relation back of amendments provision of Rule 15(c) does not apply; and (2) IHC unduly delayed in seeking the amendment.”
Children’s Hosp. Med. Ctr. of Akron v. Youngstown Assocs. in Radiology, Inc. Welfare Plan, No. 4:11CV506, 2018 WL 4539282 (N.D. Ohio Sept. 21, 2018) (Judge Benita Y. Pearson). The court determined that Plaintiff Children’s Hospital Medical Center of Akron has no standing to challenge the administrator’s decision to deny insurance coverage for treatment B.W., a minor child, received for leukemia. The health policy has a valid anti-assignment clause.
IHC Health Services, Inc. v. Calfrac Well Services Corporation, No. 2:16-CV-1028, 2018 WL 4621761 (D. Utah Sept. 26, 2018) (Judge Jill N. Parrish). The court concluded “that IHC is a valid assignee of any benefits due to T.Q. by the Plan, and thus has standing to challenge a denial of such benefits under § 1132(a)(1)(B).” The court found that Calfrac’s denial of benefits was arbitrary and capricious for failing to offer any rationale why the plan’s emergency care provision did not excuse T.Q.’s failure to obtain prior authorization. The court found that the proper remedy is a remand to Calfrac to interpret the post-emergency care provision in this case. The court awarded attorneys’ fees to the plaintiff provider.
Smith v. Liberty Life Assurance Company of Boston, No. 17-CV-01794-PAB-GPG, 2018 WL 4635983 (D. Colo. Sept. 27, 2018) (Judge Philip A. Brimmer). In this dispute over long term disability benefits, the court dismissed “certain forms of relief that plaintiff is claiming, including pre-litigation attorney’s fees and damages for emotional pain and suffering. Plaintiff argues that the pre-litigation fees and non-economic harms that she has incurred as a result of defendant’s conduct are injuries that cannot be remedied by a denial-of-benefits claim under § 1132(a)(1)(B).” The court explained that the remedies the plaintiff is seeking is not available under ERISA. The Tenth Circuit has indicated that § 1132 does not permit recovery of non-economic damages.
Statute of Limitations
Gregoire v. United Healthcare Services, Inc., No. C 18-04764 WHA, 2018 WL 4635630 (N.D. Cal. Sept. 27, 2018) (Judge William H. Alsup). In this case, brought by a pro se plaintiff, Defendants argued that her ERISA claim is time-barred because it was filed outside of the plan’s 6-month contractual limitations period. The court noted that in a non-ERISA contractual dispute, the Ninth Circuit has established that “[a] contractual limitation period requiring plaintiff to commence action within 12 months following an event giving rise to a claim is considered a reasonable limitation which generally manifests no undue advantage and no unfairness.” Han v. Mobil Oil Corp., 73 F.3d 872, 877 (9th Cir. 1995). The court declined to incorporate by reference letters communicating Plaintiff’s short-term disability claim denial because “if plaintiff is not provided an opportunity to respond plaintiff would not otherwise have the opportunity to properly plead whether the contractual time-period here manifests any undue advantage or unfairness.”
Stacy S. v. The Boeing Company Employee Health Benefit Plan, No. 1:15-CV-72, 2018 WL 4600652 (D. Utah Sept. 25, 2018) (Judge Robert J. Shelby). The court determined that final benefit determinations must notify the claimant of the time limit to file an action in district court. The remedy for the failure to do so prevents the plan administrator from enforcing the Plan’s contractual time limits for judicial review. Instead, the court will apply the most analogous statute of limitations for an ERISA plan, which in this case is Utah’s six-year statute of limitations for breach of contract actions.
Ennis v. Aetna Life Ins. Co., No. 3:18-CV-01617-WHO, 2018 WL 4636197 (N.D. Cal. Sept. 24, 2018) (Judge William H. Orrick). In this dispute over long-term disability benefits, Defendants moved to transfer venue to the Northern District of Georgia under section 1404(a). It is undisputed that venue is proper in N.D. Cal. In weighing the convenience factors and considering the interests of justice, the court denied Defendants’ motion. Since judicial review is limited to the administrative record, convenience to witnesses and ease of access to evidence are neutral factors. While Georgia’s interest in the case is slightly greater than California’s (since Plaintiff is a resident of Georgia), it does not overcome the Plaintiff’s choice of forum.