This month’s Friday Five examines cases applying an arbitrary and capricious standard of review and recent “church plan” jurisprudence, and cases that address the issue of a participant’s burden to prove that disease did not cause or contribute to an accidental amputation.

1. Does a claim administrator act arbitrarily and capriciously where it allegedly gave different reasons for denial and created a “moving target” for the plaintiff? The U.S. District Court for the Western District of Wisconsin denied a plaintiff’s motion for summary judgment, holding that Unum acted “reasonably and rationally” in revisiting its decision in light of incomplete and inaccurate initial information from an employer. Unum’s initial information from the plaintiff’s employer indicated that the plaintiff did not satisfy the elimination period, and therefore the initial denial was based on that premise alone; Unum’s subsequent finding that the plaintiff could also perform light-level activity did not constitute “moving the target.” Dahlka v. Unum Life Insurance Company of America et al., 17-cv-245-bbc (W.D. Wisc., June 12, 2018).
2. Is reclassification of job requirements during a claim review arbitrary and capricious? The District of New Jersey held that a determination that the plaintiff’s job duties were “sedentary” rather than “light” was reasonable and supported by substantial evidence, where the reviewing committee obtained an occupational demands analysis based upon the duties of the plaintiff’s former colleague, received a medical review from an orthopedic surgeon, and obtained an independent vocational review. Prezioso v. Bayer Corporation, et al. No. 14–3140, 2018 WL 3054681 (D.N.J. June 20, 2018).
3. The U.S. Government defends “church plan” exemption as constitutional. The United States intervened in a proposed class action in Florida for the limited purpose of defending the constitutionality of ERISA’s “church plan” exemption. The government asserted that the exemption, which was added to ERISA in a 1980 amendment, “is a permissible accommodation of religion under well-settled establishment clause jurisprudence” and said courts have applied it to “a variety of ‘church plans’” without questioning its constitutionality. See Memorandum, Sheedy v. Adventist Health System Sunbelt Healthcare Corporation et al., No. 16-cv-01893 (M.D. Fla. May 11, 2018).
4. What is the burden to prove accidental dismemberment, not medical illness, as the cause of an amputation? Reversing the district court’s ruling, the U.S. Court of Appeals for the Ninth Circuit held that participants in an accidental dismemberment plan met their burden of proving that the amputation of a participant’s leg was caused solely by an auto accident and that the participant’s diabetes did not substantially cause or contribute to the amputation. The Ninth Circuit panel held that the record did not support a finding that the pre-existing condition of diabetes substantially contributed to the plaintiff’s loss. Dowdy v. Metropolitan Life Insurance Co., No. 16-15824 (9th Cir. 2018).
5. A Pennsylvania court examines the same question on proving accidental dismemberment, not medical illness, as the cause of an amputation. Similarly, the U.S. District Court for the Middle District of Pennsylvania denied an insurer’s motion for summary judgment on an AD&D policy where a diabetic plaintiff’s foot was amputated after a slip and fall. The court held that the plaintiff was entitled to recover under Hartford’s policy where his injury resulted in the loss of either foot. Under the terms of the policy, while the injury had to be independent of any “sickness or disease,” there was no similar requirement applicable to the plaintiff’s loss – in other words, if the plaintiff could demonstrate that he suffered some accidental injury, not caused in any way by his diabetes, which eventually “resulted in” his amputation, it was irrelevant whether or not his diabetes exacerbated the consequences of his injury. Long v. Hartford Life and Accident Insurance Co., No. 4:16-CV-00138, 2018 WL 3155826 (M.D. Pa. June 28, 2018).