In Ariana M v. Humana Health Plan of Texas, Inc., 2018 WL 1096980 (5th Cir. March 1, 2018), a divided Fifth Circuit issued an en banc ruling that fiinally overturned Pierre v. Conn. Gen. Life Ins. Co., 932 F.2d 1552 (5th Cir. 1991) and concurred with every other Circuit that Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989) applies the default de novo standard of judicial review to both legal and factual determinations, thus paving the way for the Texas ban on discretionary clauses (TEX. INS. CODE § 1701.062(a), along with similar bans by 25 other states - Nat'l Ass'n of Ins. Comm'rs, Prohibition on the Use of Discretionary Clauses Model Act ST-42-3-6 (2014), http://www.naic.org/store/free/MDL-42.pdf.) to trigger de novo review of benefit denials of health and disability benefit claims.
Because federal courts generally consider the scope of their review of an ERISA benefit denial as being limited to review of a record, what happens if significant material evidence such as a Social Security determination becomes available only after the claim appeals are exhausted.If the standard of judicial review is arbitrary and capricious, it may be tough luck of the claimant.Majeski v. Metropolitan Life Ins.Co., 590 F.3d 478 (7th Cir. 2009); White v. Airline Pilots Assn., 364 F.Supp.2d 747 (N.D.Ill. 2005); Groth v. Centurylink Disability Plan, 2016 WL 1621724 (S.D. Ohio April 25, 2016).And in situations where the evidence could have been obtained and presented earlier, the courts will not allow the evidence later - Alford v. DCH Foundation Group Long-Term Disability Plan, 311 F.3d 955 (9th Cir. 2002).Thus, we counsel all of our clients as to the need to obtain whatever expert support is necessary during the claim process.