In Criss v. Union Security Ins.Co., 2014 WL 2707774, 2014 U.S.Dist.LEXIS 79300 (N.D.Ala. June 11, 2014), Judge William Acker, Jr. challenged the current methodology utilized by courts in adjudicating benefit disputes brought under ERISA. The court based its premise on the universally recognized legal maxim, nemo judex in causa sua; i.e., “No man should be the judge in his own case.” (citing Chief Justice Sir Edward Coke in Dr. Bonham’s Case, 8 Co. Rep. 107a, 77 Eng. Rep. 638 (C.P. 1610)). In derogation of that principle, the court noted that “clearly conflicted ERISA plan administrators and insurers, when granted by the plan document that they drafted full discretion to interpret their plans and to decide the ultimate issue of entitlement, are routinely allowed, even required, to rule on their own cases.”
Turning to the case at hand, the court described the circumstances in which Karen Criss found herself. The court described her as a 57 year old woman who suffered from fibromyalgia, neuropathy, carpal tunnel, degenerative disc disease and shoulder impingement, along with depression and anxiety. Although her disability benefit claim was approved, it was subject to a 24-month limitation on the duration of benefits on account of the psychiatric illness that triggered the onset of disability. The court found it metaphysically impossible to reach a determination as to whether Criss’s physical condition, wholly independent of her psychiatric impairments, rendered her disabled. However, the court pointed to Helms v. Monsanto Co., Inc., 728 F.2d 1416 (11th Cir. 1984), which recognized that one does not have to be “utterly helpless” in order to be deemed disabled. Instead, the court interpreted “total disability” to mean that the insured demonstrate a “physical inability to follow any occupation from which he could earn a reasonably substantial income rising to the dignity of a income or livelihood, even though the income is not as much as he earned before the disability.” Hence, the court recognized, “In today’s job market, employers are not eager to hire sedentary workers 57 years of age who are in pain and have pervasive physical ailments.”
ERISA litigation, as this case illustrates, has taken on an unfortunate character that is unique in American jurisprudence. Cases involving complex and technical factual disputes of critical importance are resolved without trials under a decisional paradigm that resembles administrative law adjudications, but without the due process protections inherent in such cases.
Judge Acker not only exposes the glaring defects in ERISA litigation; he also recognizes the reality of disability, particularly as it affects the older members of the work force who suffer the effects of chronic illness. Although the opinion cites no authority for the proposition that no employer would hire an older worker with multiple impairments, no text or treatise citation is necessary to support such an obvious truism. It may be unlawful to refuse to hire an older or disabled job applicant, but no law obligates an employer to hire someone who cannot work.
This ruling is a commendable effort to stand against the tide of unfair rulings that fail to grasp the reality of pain and the impact of illness on the ability to work on a regular basis. If other courageous judges pick up the banner raised by Judge Acker, the endeavor will not have been in vain.