Standard of review in ERISA cases 'too deferential'
Chicago Daily Law Bulletin
August 1, 2005
by MARK D. DEBOFSKY
A former football player for the Minnesota Vikings, Brent Boyd, sought disability benefits under a plan maintained by the National Football League. His claim was denied by the plan based on a finding that Boyd's disability did not result from football-related injuries, and the district court upheld that determination. On appellate review, the 9th U.S. Circuit Court of Appeals affirmed. Boyd v. Bert Bell/Pete Rozelle NFL Players Retirement Plan, 2005 U.S.App.LEXIS 11057 (9th Cir., June 13).
Boyd initially claimed benefits under the plan in 1997 due to a knee injury; however, that claim was denied and Boyd failed to appeal.
Then, in 2000, Boyd reapplied, alleging an organic brain disorder resulting from head trauma sustained in football-related activities. Boyd cited an incident where he was knocked unconscious during a preseason game; and he later developed persistent headaches, which team doctors told him were a side effect of Indocin, a prescription medication that had been prescribed to treat pain and inflammation of Boyd's knees.
After the headaches began, Boyd began using alcohol on a ''habitual basis,'' and he also began experiencing fatigue, forgetfulness, intermittent blurred vision, difficulty reading, concentrating, and learning, as well as flu-like symptoms.
The Bert Bell plan is governed by the ERISA law, and the Retirement Board, which manages the plan, is vested with discretion to interpret the plan provisions and adjudicate claims for benefits. The plan offers two types of benefits - a minimum $4,000 per month benefit if disability arises out of football injuries and results in total and permanent disability prior to the player reaching the age of 45 or within 12 years after the player's last credited season. A second benefit of at least $1,500 is paid if total and permanent disability is unconnected with football activities or if it arises from football activities and occurs after the age of 45 or more than 12 years after the player's last credited season.
The plan also provides for benefits if a player is permanently disabled during their active career, but that benefit was not at issue. Also, a 1998 amendment to the plan relates to psychological or psychiatric disorders caused by a head injury or the use of a prescribed substance used to treat a football injury.
Although the Retirement Board determined that Boyd was totally and permanently disabled and entitled to $1,550 per month, it deferred consideration of the larger football-related benefit.
Several medical reports were reviewed. The first was a report written by plan neutral physician J. Sterling Ford, M.D., a neurologist, who concluded that Boyd appeared to have problems that may be due to head injuries which he suffered during his playing days; and Dr. Ford suggested that further testing was necessary to determine the extent of the injuries. A subsequent SPECT scan showed decreased brain activity which was interpreted as consistent with head trauma.
Subsequently, the board referred Boyd to a psychologist who found him disabled as the result of depression due to post-traumatic organic brain disorder. However, the plan sought additional evidence, and referred Boyd for two days of neuropsychological testing at Johns Hopkins Hospital. The examining psychologist determined that the 1980 head injury could not have been responsible for all or a major part of the neurologic and neuropsychological problems Boyd was experiencing. That doctor opined that Boyd's problems were attributable to depression and/or chronic pain as well as untreated hypertension and physical deconditioning. After receiving the neuropsychological report, benefits were denied.
In applying the ''arbitrary and capricious'' standard of review, the court concluded that the single report from Johns Hopkins was sufficient to sustain the determination. To overturn the Retirement Board, the court would have to conclude ''that the entire record leads to a 'definite and firm conviction that a mistake has been committed' by the board in concluding that Boyd's disability did not arise from his football career.''
The court further explained: ''Boyd's claim is not saved by relying on what he characterizes as the medical experts who expressed the opinion that Boyd's disability does arise from his League football activities. An ERISA administrator's exercise of its discretion to adjudicate claims is not a mere exercise in expert poll-taking. We hold that a mere tally of experts is insufficient to demonstrate that an ERISA fiduciary has abused its discretion, for even a single persuasive medical opinion may constitute substantial evidence upon which a plan administrator may rely in adjudicating a claim.''
The court added that those experts Boyd cited in support of his claim furnished equivocal findings as to causation; thus, the board could justifiably rely on the neuropsychological testing results. A concurring opinion added that the fact that the head injury was not contemporaneously diagnosed gave further support to a conclusion that it was not unreasonable to conclude that Boyd's disability was not the result of a football-related occurrence; however, the concurring judge felt the language in the majority opinion about the ''exercise in expert poll-taking'' went too far.
This ruling may have reached the right result if careful scrutiny of the opinion from the Johns Hopkins neuropsychologist was well-supported by research and test data, but the outcome of this case was reached for the wrong reasons; and there is language in the opinion that should concern plaintiffs' counsel.
Boyd changes the standard of court review of ERISA benefit decisions to the ''clearly erroneous'' standard, which may lead to unfortunate consequences since it is so difficult to meet that standard.
This ruling also conveys a sense of abdication of judicial responsibility. It is understandable that courts are reluctant to involve themselves in benefit decisions where complex medical questions about which judges lack expertise are at issue; however, from a philosophical standpoint, given the importance of employee benefits, the more significant issue is whether a deserving claimant has been wrongfully denied benefits. The entire history of American jurisprudence has focused on the courts' role of being the arbiter of disputed questions such as this. It should not be the role of the courts to put a stamp of approval on a decision that ''seems'' right just because the plan obtained a report from a psychologist who practices at a prestigious institution. In the future, if a claimant has a supportive medical opinion from a University of Chicago physician, are courts going to hold that the opinion is trumped by a Harvard doctor?
The procedure applied in Boyd should be compared to three other recent decisions. In Sheehan v. Metropolitan Life Insurance Co., 2005 U.S.Dist.LEXIS 4087 (S.D. N.Y. March 17, 2005), the court conducted a plenary bench trial and assessed the underlying support for the competing medical opinions in adjudicating the plaintiff's entitlement to benefits.
Similarly, in Napoli v. First Unum Life Insurance Co., 2005 U.S.Dist.LEXIS 7310 (S.D. N.Y. April 22, 2005), the court heard testimony from the plaintiff's and insurer's physicians, which enabled the judge to evaluate whether the plaintiff faced a substantial risk of a heart attack if he returned to work. The court carefully considered the competing medical opinions in determining that the underlying support for the plaintiff's medical opinions lacked the strength of the evidence on which the insurer's doctor based his opinions.
In contrast, in Leipzig v. AIG Life Insurance Co., 326 F.3d 406 (7th Cir. 2004), the court did the same thing as it did in this case - it simply credited a medical opinion offered by a reviewing doctor and discredited the plaintiff's physicians in finding it was not arbitrary and capricious for the insurer to deny disability benefits, even though his claim was supported by the treating and examining cardiologists, the plaintiff's internist, a rheumatologist, and a psychologist; and Social Security and a life insurer found him disabled.
Once again, we see in Boyd a court ruling that shows why a deferential standard of review in ERISA benefit cases is wholly inappropriate. The mistake appears to be the result of courts mis-analogizing these cases to Social Security disability benefit claims or misapplying trust law, which Professor John Langbein convincingly showed was a mistaken approach in his 1990 article entitled ''The Supreme Court Flunks Trusts,'' 1990 Supreme Court Review 207.
The analogy to both areas of practice is entirely inappropriate because in both Social Security administrative law claims and in trust disputes a de novo hearing is held to give the court an opportunity to weigh the evidence after the parties are afforded the right to cross-examination.
No one can dispute the utility of cross-examination as the means of either highlighting weaknesses in medical opinions or reinforcing the strength of those opinions, particularly when the finder of fact is able to simultaneously evaluate the credibility of witnesses. The ERISA system has completely broken down; it needs to be fixed before the public completely loses confidence in the courts.
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