This month’s Friday Five explores a decision ordering an IME prior to a ruling on summary judgment motions, the extent claims reporting records can be sealed, the scope of ERISA preemption in the context of removal, and two decisions awarding summary judgment for the defendant despite the plaintiffs having received disability benefits for several years prior.

1. Can a court take the “highly unusual” step of ordering an IME to supplement the record in a ”subjective pain” case when the administrator has chosen not to examine the plaintiff before ruling on summary judgment motions? Yes, so says the District Court for the Eastern District of Pennsylvania. The plaintiff filed a complaint against Hartford alleging disability due to fibromyalgia and the wrongful denial of LTD benefits. The parties filed cross-motions for summary judgment and oral argument was held. Thereafter, the Court issued an order describing this as a “subjective” pain case and requested that the parties submit additional briefing on this issue because the Court was considering a remand combined with instruction for an in-person IME. The parties submitted additional briefing and the Court thereafter issued an order on July 6, 2023, appointing an independent physician to perform a medical records review and IME. Hartford moved for reconsideration. The Court granted the motion for reconsideration only insofar as to recharacterize the physician as a “Special Master”. Hartford appealed. On September 22, 2023, the District Court wrote a lengthy opinion (click here to read the opinion) for consideration by the Third Circuit and conceded that “judicial review of ERISA benefits claims typically may not extend outside of the administrative record where, as here, the plan gives the insurance company discretionary authority. However, the court found the case involved unusual circumstances. . . There is substantial evidence in the administrative record that Hartford rejected Plaintiff’s evidence of pain without providing an in-person exam where one was warranted.” On October 26, 2023, the Third Circuit issued an order (click here to read the order) denying Hartford’s request to “vacate the District Court’s orders related to the independent medical expert via a writ of mandamus” describing this as an “extraordinary remedy.” However, the Third Circuit remanded the matter back to the District Court with a suggestion that it remand the matter back to Hartford since the District Court had indicated that “in this circumstance, it could and would remand back to Hartford”. On October 27, 2023, the District Court issued an order (click here to read the order) remanding the case back to Hartford and “suggest[ed]” that Hartford retain the independent IME provider that the Court had appointed to not only review the plaintiff’s medical records, but also “suggest[ed]” that Hartford should schedule the plaintiff for an IME with a “pain specialist.” Lewis v. Hartford Life & Accident Co. E.D. Pa. Case No. 2:21-cv-01438-MMB, 3rd Cir. Case No. 23-2431. 
2. Will the Court issue a confidentiality order to protect the disclosure of an insurer’s claims tracking data? Yes. The District Court for the Eastern District of Tennessee granted a Motion to Seal certain documents produced by Defendant Unum and submitted by Plaintiff in support of Plaintiff’s Motion to Determine the Extent of Deference Given to Unum's Decision to deny LTD disability benefits. At issue were Unum’s “Weekly Tracking Reports” which track data regarding claims. The Plaintiff argued such data was relevant to show that Unum was motivated “by its own financial interests when it denied Plaintiff's claim.” The Court observed that general information about these reports is public and cited to a published article referring to the reports. The Court agreed with Unum, however, that it demonstrated a compelling interest to have the records sealed because the case “involves only one claim for long-term disability; it does not affect a wide spectrum of people such as a class action would”; Plaintiff’s interest in disability benefits is a private, not public, concern; general information regarding the reports is public; and Unum’s request to seal just the Weekly Tracking Reports at issue in the case was “narrowly tailored” and “effectively seals only the specific data applicable to this case.” Smith v. Unum Life Ins. Co. of Am. No. 1:21-cv-00294-KAC-CHS, 2023 WL 7991809 (E.D. Tenn. Sept. 26, 2023).
3. Can a complaint that does not state an ERISA claim on the face of the complaint survive a motion to remand? No. The District Court for the District of New Jersey granted the Plaintiff’s motion to remand the case to New Jersey state court. The Plaintiff filed suit against her former employer alleging she was wrongfully terminated for engaging in protected whistleblower activities. Plaintiff further alleged that her disability and medical leave claims were denied in retaliation for her protected conduct. The Defendant employer removed the case to federal court arguing that federal question jurisdiction existed because Plaintiff’s claims were preempted by ERISA. Plaintiff filed an amended complaint removing certain allegations and thereafter filed a motion to remand arguing that her claims did not seek to enforce her rights under ERISA. The Court analyzed the motion to remand under the doctrine of complete preemption which “operates to confer original federal jurisdiction notwithstanding the absence of a federal cause of action on the face of the complaint.” The Court further explained that “[t]o determine if Section 502(a) completely preempts a plaintiff's state law claims two prongs must be satisfied: (1) the plaintiff could have brought the action under Section 502(a); and (2) no independent legal duty supports the plaintiff's claims.” As to the first prong, the Court concluded that “Plaintiff's claims are supported by legal duties that are entirely distinct from Plaintiff's ERISA Plan.” As for the second prong, “[b]ecause Defendants’ purported actions towards Plaintiff, and the relief she seeks, are based on CEPA and NJLAD, her claims do not rely on her rights under ERISA, and do not require an examination or application of Plaintiff's benefits plan under ERISA.” Ham v. Novartis Int’l AG, Civil Action No. 23-3503 (MEF) (MAH), 2023 WL 7634774 (D.N.J. Oct. 17, 2023). 
4. Is an insurer entitled to summary judgment on a claim for wrongful denial of LTD benefits despite approving plaintiff’s claim for several years prior without documentation supporting the claim? Yes. Plaintiff filed a claim for LTD benefits with Defendant Guardian alleging disability due to “(1) unspecified trauma and stressor related disorder; (2) major depressive disorder, recurrent, moderate; and (3) agoraphobia”. The Defendant, Guardian Life Insurance Company of America, approved her claim and paid benefits for approximately eight years. The Defendant thereafter reviewed evidence suggesting that Plaintiff’s symptoms had improved and were not consistent with someone “suffering from a severely impairing or an incapacitating condition.” The policy at issue required the plaintiff to provide “ongoing” proof of disability based on “objective medical evidence” to qualify for LTD benefits. The Court agreed that the Plaintiff had not met this burden. “The administrative record and the parties’ submissions, taken as a whole, support Guardian's decision to terminate Delucca's LTD benefits for three related reasons: First, Delucca's symptoms significantly improved over time; second, Delucca's providers’ opinion that she was unfit to work was unsupported by objective medical evidence; and third, Guardian's decision was supported by the opinion of an independent physician consultant, Dr. Yuppa.” The Court further explained that “Guardian was entitled to discount Delucca's doctors’ conclusions that she was unfit to work because they were based largely on her self-reported symptoms rather than on objective medical examination.” The Court ultimately held that Guardian’s decision to terminate benefits was not de novo wrong. Delucca v. The Guardian Life Ins. Co. of Am. Case No.: 9:22-cv-80903-DMM, 2023 WL 7129986 (S.D. Fl. Sept. 15, 2023).
5. Can a plan terminate benefits after paying for benefits for several years when the decision is supported by the conclusions of Plaintiff’s own treating provider and an IME? Yes. Plaintiff filed suit against his former employer alleging that his LTD benefits were wrongfully terminated. Plaintiff, a former engineer, alleged disability primarily due to back pain and neuropathy combined with major depression. The defendant employer awarded benefits for a number of years but ultimately terminated benefits after having Plaintiff examined by a non-treating neurologist who concluded Plaintiff was not disabled as a result of neck or back pain. Ultimately, Plaintiff filed suit and argued that the employer failed to adhere to time requirements set by the DOL’s claims procedures, the employer should therefore be stripped of discretionary review and the decision reviewed by the court de novo. The court rejected this argument, finding that the DOL rules cited only applied to initial claims filed after April 1, 2018 and Plaintiff’s claim was filed in 2017 – thus the rules cited by Plaintiff did not apply. The Court found the employer’s decision to terminate benefits was supported by substantial evidence, including the conclusions of Plaintiff’s own treating provider that he was able to return to work from a mental health standpoint. Additionally, from a physical perspective, the employer relied upon the conclusions of a doctor who performed an in-person examination at the employer’s direction. The court rejected Plaintiff’s argument that the existence of evidence in the file supporting his claim showed an abuse of discretion. The court explained that “the fact that the administrative record includes evidence supporting Mr. Cortez's claim—even evidence on which a reasonable administrator might have approved the claim—does not show an abuse of discretion.” The Court also rejected the Plaintiff’s argument that because the employer had approved benefits for a period of time it was estopped from terminating benefits absent a change in his medical condition. The Court explained that “[a]n ERISA plan's decision to pay benefits does not “operate forever as an estoppel so that an [administrator] can never change its mind.” The plan had significant new information to support the termination of benefits including the opinion of Plaintiff’s own treating provider that he was cleared to work from a mental health perspective and an IME that concluded Plaintiff did not show significant impairment due to back or neck pain. Cortez v. General Mills, Inc. File No. 22-cv-1552 (ECT/JFD), 2023 WL 7489998 (D. Minn. Nov. 13, 2023).