De Novo Review

Ordorf v. Paul Revere Life Insurance Company, 404 F.3d 510 (1st Cir. 2005).

Ordorf v. Paul Revere Life Insurance Company, 404 F.3d 510 (1st Cir. 2005). Plaintiff appealed the district court’s denial of benefits on de novo review of an ‘own occupation’ disability policy.  He started benefits in 1995 for drug dependency but was limited to three years of benefits for that condition.  Before benefits ended for that reason he informed defendant he was disabled due to back problems.   Plaintiff treated for back injuries beginning in 1976.  He did have objective evidence of disc disease and had multiple treatments over the years.  The question for the first circuit was what is entailed in a de novo review.  Firestone v. Bruch, 489 U.S. 101 (1989) makes clear that in plan language disputes no deference is given and courts should apply the normal rules for contract interpretation.  But it also includes a conclusion to deny benefits based on a set of facts.  The court agreed with the plaintiff that the correct standard is whether, upon a full review of the administrative record, the decision of the administrator was correct.  De novo review generally consists of the court’s independent weighing of the facts and opinions in the record to determine whether the claimant has met his burden of showing that he is disabled within the meaning of the policy.  Plaintiff bears the burden of making a showing sufficient to establish a violation of ERISA.  GRE Ins. Group v. Met. Boston Hous., 61 F.3d 79, 81 (1st Cir. 1995).  As in deferential review, see Liston v. Unum, 330 F.3d 19 (1st Cir. 2003) on de novo review, the focus of judicial review is ordinarily the record made before the administrator and at least some very good reason is needed to overcome that preference.  After an exhaustive review of the medical history and other facts, the court concluded that Plaintiff did not meet his burden because he worked for years despite back pain and treatment, he originally became disabled for drug dependency, his back pain was controllable even after he went out on disability, his recreational life was inconsistent with his claim, the SSA decision did not establish disability due to back problems alone and his claim based on the back disability came only after he expressed concerns with work issues as he started to cope with the idea of getting cut off from benefits based on the drug disability limitation. 


Other notable rules and statements.  The plan is limited to the grounds of denial it articulates to the claimant.  Citing Glista v. Unum Life Ins. Co., 378 F.3d 113, 128-29 (1st Cir. 2004).  (It’s hard to see how this applies to de novo review).  Summary judgment is just a vehicle for deciding the issue.  Liston v. Unum, 330 F.3d 19 (1st Cir. 2003).  The fact that judicial review is de novo does not itself entitle a claimant to a trial or to put on new evidence. 

Jane Doe v. Harvard Pilgram, 2018 WL 4237288 (1st Cir.).

Jane Doe v. Harvard Pilgram, 2018 WL 4237288 (1st Cir.). Health benefits case in which participant was admitted to a mental health facility.  HPHC paid for the initial stay, then denied coverage for additional time.  Then she was readmitted and HPHC paid again.  Plaintiff sued after an unsuccessful appeal where she said the record was incomplete.  After suit was filed, HPHC told Plaintiff she had additional claims whose administrative remedies had not been exhausted.  The parties agreed to a post lawsuit review during which time Plaintiff submitted more evidence.  After HPHC denied that review HPHC filed an updated administrative record that did not include anything submitted after the final denial before suit was filed.  Plaintiff filed a motion to expand the record.  The district court denied it and found for HPHC.  Plaintiff appealed to the first circuit. 

            Plaintiff challenged the district court’s decision on the definition of the administrative record and the finding on the merits.  Regarding the record, the first circuit’s rule is that the decision for judicial review is the final administrative record and, absent a good reason or very good reason, courts reviewing that decision are limited to the evidence presented to the administrator as of that time.  Held that the administrative record for review includes documents submitted or generated as part of the post-filing review.  The court found that there was an unambiguous agreement to include this evidence in the record and found that in none of its cases had it suggested that an ERISA fiduciary can unilaterally walk away from a clear agreement with the beneficiary concerning the status of an administrative review under a plan.  The court had previously found that an administrative record can be reopened and the records supplemented.  Gross v. Sun Life Assurance Co. of Canada, 734 F.3d 1 (1st Cir. 2013).  Therefore there was a more than good reason to deem the documents submitted to HPHC after filing suit to be part of the record. 

            Regarding the review standard on the merits, the court held that where the court is reviewing the merits of an ERISA benefits denial de novo it will review the court’s factual findings for clear error.  They specifically offered no opinion on the standard of appellate review when the court below reviews a discretionary determination under the arbitrary and capricious standard.  See ft. 3.   They  cited a recent Supreme Court case, U.S. Bank National Ass’n ex rel. CWCapital Asset Management LLC v. Village at Lakeridge, LLC, -U.S.-, 138 S.Ct. 960, 200 L.Ed.2d 218 (2018).  They reasoned that summary judgment in the ERISA context is akin to judgment after a bench trial.

Kamerer v. UNUM, 2018 WL 4539693 (D.Mass.) 

Plaintiff’s summary judgment granted and benefits reinstated on a de novo review where she had been receiving benefits from 2004 to 2013 for fibromyalgia with secondary depression where an early arthritis specialist wrote that her depression could be playing a role and it was difficult to know where was primary, on group and individual own occupation policies.  Her doctors supported her claim.  Unum had an internal clinical consultant review the file and found her not disabled and they terminated her benefits.  Then they reinstated pending an in person evaluation with an IME ordered by a second in house doctor.   The IME doctor said there were longstanding symptoms in excess of objective findings and no identified basis to conclude disability.  He said she had fibromyalgia but could do her job functions if psychological symptoms are not taken into account, but she said he only spent 5 minutes with her.  Unum’s in house consultant based on the IME said she was not disabled and that her pain was secondary to psychological symptoms.  The second in house doctor then concluded she was not disabled and that her pain was secondary to psychological issues.  On appeal another internal doctor reviewed the file


            Burden of proof.  Plaintiff has the burden of demonstrating that she is disabled within the terms of the policy by a preponderance of the evidence.  Has to show she cannot meet one of the necessary conditions of her employment. 


            Type of proof.  It is unreasonable to require objective evidence of a diagnosis that evades objective verification.  See Cook v. Liberty Life Assurance Co., 320 F.3d 11, 21 (1st Cir. 2003).  No argument as to diagnosis.  Regarding evidence of inability to work due to the symptoms of the illness, where a plan gives an insurer discretion it is not arbitrary to require objective evidence.  But on de novo review the court looks to the totality of the evidence.  Cites Gross v. Sun Life Assur. Co. of Canada, 734 F.3d 1,22 (1st Cir. 2013). 


            Weighing the evidence.  Administrators can’t arbitrarily refuse to credit a claimant’s reliable evidence, including of treating physicians.  Black & Decker Disability Plan v. Nord, 538 U.S 822,823 (2003).  Where the credibility of the claimant is a factor the impressions of the examining doctors sensibly may be given more weight than those who looked only at paper reviews.  Gross v. Sun Life Assurance Company of Canada, 880 F.3d 1, 14 (1st Cir. 2018).  While subjective reports of pain are difficult to prove, they should be accorded some weight on the ledger.  Gross v. Sun Life Assur. Co. of Canada, 763 F.3d 73, 84 (1st Cir. 2014).  Opinions of internal paper reviews may be given less weight when credibility is central to a plaintiff’s claim.  Gross, 880 F.3d at 14.  None of the reviewers offered any reasons to disagree with the numerous other medical professionals that had seen Plaintiff over many years and without reason arbitrarily refused to credit their findings.  Court found there was objective evidence – the fibromyalgia tender point tests.  Court concluded that there was some objective evidence and overwhelming subjective evidence and found her disabled.


            Regarding the mental health limitation, the court said (1) burden of proof shifts to defendant; (2) caused by or contributed to by means the mental condition must be a but-for cause of disability; and (3) on the fact, the IME doctor’s diligence was disputed and the in house doctor just reiterated that opinion, so not much weight was given to them.

Gross v. Sun Life Assur. Co. of Canada, 880 F.3d 1 (1st Cir. 2018). 

Appeal of district court’s de novo granting of plaintiff’s summary judgment motion for benefits, where the case originally went up to the first circuit but was remanded for additional administrative proceedings relating to the significance of surveillance evidence.   The court found that plaintiff had already met her burden of showing disability and that on remand the surveillance video did not undermine the court’s prior assessment of the medical evidence. 

Multiple examining doctors found plaintiff disabled due to chronic pain, inability to sit, severely diminished use of her right arm, due to reflex sympathetic dystrophy (RSD), fibromyalgia, complex regional pain syndrome (CRPS) or the like.  The PT who performed the FCE found her credible, as did her doctors and her co-workers, who wrote letters of support.  Several doctors speculated she had psychological factors contributing, and diagnostic tests were negative.  There were nine days of surveillance.  Most days showed little activity, but on three days she acted in ways inconsistent with her restrictions and limitations, including driving longer than expected, using her right hand to pump gas, going into a store and bending, kneeling and reaching.  She stopped to rest on both drives, and video showed her having effects from these activities, including limping and being taken to her car in a wheelchair after visiting her mother in the hospital.  The only doctor who both examined plaintiff and reviewed the video was an IME for the insurer.  He originally found her disabled, but after reviewing the video he changed his mind, but added that she should be reevaluated.  On remand the insurer got two more paper reviews and plaintiff got two more supportive letters, from a pain specialist and from the PT who did the FCE. 

Standard of review.  The court made it de novo in Gross I for plans that require proof ‘satisfactory’ to the reviewer.  As to the standard on appeal, since the court upheld the district court even on de novo review, it did not have to address whether the appeal should be de novo or for clear error.

Evaluating the evidence.  The video surveillance and reviews of it did not dislodge the finding that plaintiff met her burden of showing she’s disabled.  The questionable activities on surveillance were not far from the limitations established.  Pain medication and the nature of the diseases could account for the activities.  The insurer and the two IME reviewers failed to assess the questionable activities in the context of the nine days, during which the investigator saw little activity on most days.  Fluctuation in physical abilities is predictable and the new assessments failed to account for that.  This was true even though the record reflected some exaggeration by the plaintiff. 

Weight of reports by treating physicians and paper reviewers.  Where the determination of disability depends on an assessment of largely subjective, self-reported symptoms, those who have had in person exposure, whether treating physician or not, have access to information not available to non-examining doctors.  Where the claimant’s credibility is a central factor, and particularly where a claimant’s in person presentation of symptoms was credited by the IME, the impressions of examining doctors may be given more weight than those who only did paper reviews.

The court addressed sanctions for plaintiff’s attorney for threatening to sue the IME if he did not “correct” his medical opinions, then lied to the first circuit about it, where he had already been sanctioned in the past.  No sanctions given, but did direct that his actions be reported to his professional conduct counsel in Kentucky. 

Prejudgment interest.  Prejudgment interest is not in the ERISA statute but a court has discretion to grant it and its discretion extends to the rate to be applied.  The two primary factors are the remedial objectives of ERISA, which are served by making a participant whole and to prevent unjust enrichment.  The complexity in setting a rate is the ever-changing relationship between statutory interest rates and the actual cost of money.  In determining the rate, the court’s task is to identify a fair percentage reflecting both the rationale of full compensation and ERISA’s underlying goals.  Citing Cottrill v. Sparrow, Johnson & Ursillo, Inc, 100 F.3d 220 (1st Cir. 1996).  The court set it at the federal statutory rate (§ 1961(a)).  The first circuit said that was too low and the court did not give reasons for the rate, so it was vacated for a reassessment.

Attorney’s Fees.ERISA provides for attorney’s fees at 29 U.S.C. § 1132(g)(1).The district court used the loadstar analysis, which is an assessment of hours reasonably spent and a determination of a reasonable hourly rate. Matalon v. Hynnes, 806 F.3d 627, 638 (1st Cir. 2015).The district court awarded $96,243.50, a reduction of more than $188,000 from the requested fees.Reduction of out of state counsel’s rate based on his local area did not exceed the court’s authority.As to hours, 105.5 attorney hours for summary judgment motions was cut in half by the court below based on discounting time spent on losing arguments.The first circuit said that was in error.But as to total hours, the court found no abuse in finding that unreasonable and concluded a 25% reduction would reflect the success of plaintiff and the view that the hours were excessive.