There has been a growing volume of litigation relating to disability benefit claims brought by former professional football players.
A recent example is the ruling issued by a federal court in California in Dimry v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, 2020 WL 5526607 (N.D. Cal., Sept. 15). This ruling was the second time the court had to address Charles Dimry’s disability claim. The court had previously overturned a benefit denial (2018 WL 1258147 (N.D. Cal., March 12, 2018) and ordered the plan to reconsider its initial benefit denial; however, the plan reaffirmed its refusal to award benefits. In this decision, once again, the court found the denial was arbitrary and capricious.
Following the first remand, the plan’s medical director wrote that if Dimry’s claim has “to be supported by objective findings which would support his subjective complaints, then it is my opinion that the medical records reviewed do not provide significant objective support for this determination of total and permanent disability.” That conclusion formed the basis of denial.
However, the court found Dimry was never given a chance to address any deficiencies following the initial remand, which the court viewed as a denial of his right to a “full and fair review” guaranteed by the ERISA statute.
The court elaborated on that finding by observing: “The first review was reversed as an abuse of discretion; thus, the full and fair review requirement applied equally if not more so on remand. There is no justification for the Board’s decision to exclude Mr. Dimry from the renewed review of his appeal — especially given that the Board’s decision was based on a plethora of new evidence — in violation the rule that there be ‘a meaningful dialogue between ERISA plan administrators and their beneficiaries.’” Booton [v. Lockheed], 110 F.3d at 1463.”
Of even greater significance, though, the court also found the plan’s imposition of an “objective evidence” requirement was an abuse of discretion. The court cited the opinion of the plan’s medical director, which acknowledged that pain results from degenerative arthritis of the spine, but cannot be quantified or predicted. As a result, the court ruled the plan’s objective evidence requirement was “illogical” and “without support in inferences that may be drawn from the facts in the record.”
The court added that “reliance on objective evidence can be problematic for medical conditions that are not amenable to objective verification.”
Moreover, while the initial benefit denial was based, at least in part, on a denial of Social Security disability benefits, Dimry’s Social Security claim was ultimately approved during the course of litigation. Yet the plan refused to take the award into consideration on remand. Instead, the defendant argued that the two Social Security denials preceding the ultimate approval established that reasonable minds could differ, and thus showed the benefit denial was not arbitrary.
The court disagreed, observing, “Not so. The issue is that the ALJ found that the medical evidence supported Mr. Dimry’s pain complaints while the Plan physicians did not.” Although the court was careful to point out that the plan did not have to accept the ALJ’s finding, it was still required to explain why it reached a different conclusion.
The court also overruled a second reason the defendant asserted for disregarding Social Security — that SSA relies on vocational factors the plan does not take into consideration. The court observed “that even without the vocational expert’s opinion, the ALJ found that Mr. Dimry was limited to sedentary work such that he could only stand for 15 minutes at a time and sit for 15 minutes at a time, that he can only sit, stand, and walk a total of 2 hours in an 8-hour day, and that he would miss approximately 4 days of work a month.” Dimry’s education and work experience had nothing to do with that conclusion.
Having concluded that the denial following remand was unprincipled and an abuse of discretion, the district court nonetheless remanded the matter yet again to the plan administrator, but admonished: “Given the Court’s findings above, remand is the appropriate remedy. The Court expects that once the Board gives Mr. Dimry the full and fair review ERISA requires, and eliminates the mandate of objective evidence — a mandate not in the Plan and not in Dr. Jackson’s reports— that Mr. Dimry will be found disabled under the Plan.”
The court’s findings raised serious doubts about the fairness of the NFL’s disability process. The court rightfully called out the plan’s deception and refusal to carry out the type of dialogue required by ERISA. In addition, the court challenged the plan’s unwritten objective evidence requirement when its own physician acknowledged that pain cannot be measured or predicted. The court’s views on the Social Security determination were also instructive since the Social Security Administration is a federal agency that objectively assesses disability claims under a demanding standard that requires claimants for benefits to establish their inability to engage in “any substantial gainful activity” (42 U.S.C. §423(d)(1)(A) — statutory definition of “disabled” under the Social Security Act).
But the court’s willingness to remand the case a second time is mystifying since there is no language in the ERISA statute that requires, or even permits, remands to plan administrators, unlike the judicial review provisions of the Social Security Act (42 U.S.C. §405(g)) which explicitly grant federal courts authority to remand claims to the agency. After having once remanded the case only to have its order essentially disregarded, the court should have been guided by the admonition “fool me once, shame on you; fool me twice, shame on me.”
Mark DeBofsky is a shareholder at DeBofsky Sherman Casciari Reynolds PC.
This article was published in Law Bulletin on 10/22/2020.