This month’s Friday Five covers cases relating to augmentation of the administrative record following new rationales, attempted alternative ERISA causes of action, untimely ERISA claims, plans governed by ERISA even in the absence of a written plan document, and the limited weight given to residual functional capacity evaluations.

1. Ninth Circuit Reverses District Court Decision Finding Abuse of Discretion for Not Permitting Plaintiff to Augment Administrative Record. After initially receiving disability benefits under her employer’s long-term disability plan, the insurer terminated the plaintiff’s benefits and later upheld its termination in an administrative appeal. The Southern District of California upheld the insurer’s termination of benefits and denied the plaintiff’s motion to augment the administrative record. However, the Ninth Circuit found the district court abused its discretion by not allowing the plaintiff to augment the record. “[A]dditional evidence is necessary when an administrator tacks on a new reason for denying benefits in a final decision, thereby precluding the plan participant from responding to that rationale for denial at the administrative level.” (internal quotations omitted). The Ninth Circuit found that the administrator “functionally redefin[ed]” the plaintiff’s occupation in its denial of the plaintiff’s administrative appeal, providing new reports to support the new rationale, which had not been previously available to the plaintiff. According to the Ninth Circuit, by denying the plaintiff’s motion to augment the record with the additional evidence, “the district court effectively insulated the insurer’s decision from ‘full and fair review.’” The Court also determined that both the insurer and the district court erred in omitting certain travel and lifting requirements from the plaintiff’s occupation—the insurer’s occupational specialist incorrectly defined the plaintiff’s occupation by “matching DOT titles to generic job descriptions from Indeed.com and failed to select DOT titles that approximated her actual responsibilities” with her employer. Kay v. Hartford Life & Accident Ins. Co., No. 21-55463, 2022 WL 4363444 (9th Cir. Sept. 21, 2022).
2. Northern District of Georgia Dismisses Claims for Breach of Fiduciary Duty Under ERISA Plan and Violation of ERISA Claims Procedure Statute. The plaintiff brought causes of action against the insurer for (1) benefits under the Plan pursuant to 29 U.S.C. § 1132(a)(1)(B); (2) breach of fiduciary duty; and (3) violation of claims procedure. The Plaintiff also asserted a claim for breach of contract under Georgia state law, but agreed to withdraw the claim as preempted by ERISA. Regarding Count II—breach of fiduciary duty under 29 U.S.C. §1132(a)(3), the Court recognized Subsection (a)(3) as a “catchall” provision that “acts as a safety net” for violations that cannot be remedied under other parts of Section 1132. “This means that, if a plaintiff has an adequate remedy under Section 1132(a)(1)(B), she cannot also plead a claim under the equitable catchall provision.” Regarding Count III—violation of claims procedure under 29 U.S.C. § 1133 and 29 C.F.R. 2560.503-1, the Court determined that Section 1133 does not establish an independent right of action. “[T]he Supreme Court has made clear that, in adopting Section 1132(a), Congress ‘clearly expressed an intent that the[se] civil enforcement provisions . . . be the exclusive vehicle for actions by ERISA-plan participants and beneficiaries asserting improper processing of a claim for benefits. . . . The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies’ not provided for by Congress.” (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 52 (1987), superseded by statute on other grounds as stated in Hunter v. Ameritech, 779 F. Supp. 419, 420 (N.D. III. 1991)). Johnson v. Reliance Standard Life Ins. Co., No. 1:21-CV-02900-SDG, 2022 WL 4773515 (N.D. Ga. Sept. 29, 2022).
3. District of Nevada Rejects Plaintiff’s Pandemic-Related Excuse for Untimely Claim. An insurer moved for judgment on the pleadings, arguing that the plaintiff’s claim related to the denial of short-term disability benefits was barred by the group policy’s three-year contractual limitations period. The plaintiff attributed her inability to file sooner to the “pandemic and unprecedented situation caused by the shutdown.” The District of Nevada granted the insurer’s motion for judgment on the pleadings, finding the group policy’s three-year limitations period to be reasonable and enforceable. In fact, the Court recognized that “[n]umerous courts in this circuit and elsewhere have held that contractual limitations periods of one year or less are reasonable.” Moreover, even Nevada’s six-year breach of contract limitation period could not save the plaintiff’s claim as the cause of action accrued more than six years before she filed suit. Adamian v. Sun Life Assurance Co. of Canada, No. 221CV01586GMNEJY, 2022 WL 4585279 (D. Nev. Sept. 29, 2022).
4. District of Massachusetts Confirms Written Plan Document is Not Required for ERISA Plan; Denies Motion to Remand Action to State Court. When the plaintiff was denied disability benefits, he filed suit in Massachusetts alleging only state-law claims. The insurer removed the action to federal court, contending that ERISA governed the case. The plaintiff moved to remand the case on the basis that (1) the plaintiff was the owner, rather than an employee, of the corporation that purchased the plan, (2) the corporation merely purchased, rather than established or maintained the plan, (3) the policy was an individual policy not governed by ERISA, (4) the plaintiff paid the premium directly, rather than the corporation paying the premium, and (5) because the insurer did not provide the plaintiff with written documentation of a plan, the plan did not fall under ERISA. The District of Massachusetts rejected all of the plaintiff’s arguments and denied his motion to remand. Regarding plaintiff’s argument that the insurer did not provide a written plan document, the Court noted that the First Circuit had indicated that a written document is not required for ERISA to apply (citing New Eng. Mut. Life Ins. Co., Inc. v. Baig, 166 F.3d 1, 4 (1st Cir. 1999)). The District of Massachusetts underscored the First Circuit’s decision in Baig, finding “the absence of a formal, written plan document” does not support the finding that a plan is outside the bounds of ERISA. Campbell v. Unum Grp., --- F. Supp. 3d ----, No. CV 21-11637-TSH, 2022 WL 4486073 (D. Mass. Sept. 27, 2022).
5. Southern District of Florida Grants Insurer’s Motion for Summary Judgment, Giving RFCE “Only Limited Weight.” On a claim centered on an ERISA long-term benefits denial, the plaintiff argued that reports from his primary care physician and a residual functional capacity evaluation (“RFCE”) objectively demonstrated by a preponderance of the medical evidence that the plaintiff was disabled under the terms of the ERISA plan. The Southern District of Florida found the plaintiff’s medical evidence to be insufficient to meet the requirements of the Plan. The PCP’s reports were afforded little evidentiary weight due to the PCP’s “lack of relevant medical expertise, lack of objective findings, lack of supporting explanation and detail, numerous inconsistencies, contradictions, and exaggerations in the reports he submitted, along with the almost complete reliance on [the plaintiff’s] subjective complaints” thus revealing a lack of professional objectivity. Regarding the plaintiff’s RFCE, the Court was similarly unimpressed. The Court recognized that traditional Functional Capacity Evaluations (“FCEs”) by qualified evaluators are generally regarded as reliable evidence of functional restrictions and limitations because FCEs involve objective measurements that “include physical abilities and tolerances as well as validity, credibility, and reliability.” (emphasis in original). RFCEs, on the other hand, are abbreviated and do not represent that the test is objective or includes validity, credibility, and reliability testing. Ultimately, while the Court accepted the RFCE as “some evidence” of the plaintiff’s restrictions and limitations, it did not view the RFCE as “persuasive objective evidence” of disability. Dunham-Zemberi v. Lincoln Life Assurance Co. of Bos., --- F. Supp. 3d ----, No. 1:21-CV-24224-PCH, 2022 WL 6261780 (S.D. Fla. Sept. 16, 2022).