A magistrate judge from The Northern District of California has handed a victory to a former NFL player, who had challenged the decision of the Retirement Board of the Bert Bell/Pete Rozelle NFL Player Retirement Plan (Plan), which denied him total and permanent (T&P) disability benefits under the Plan and the Employee Retirement Income Security Act of 1974.
In ruling for the plaintiff, Charles Dimry, the court found that the defendants abused their discretion in denying his disability claim and remanded the case for further proceedings.
Dimry was drafted by the Atlanta Falcons in 1988. Throughout his 12-year career with the NFL he sustained a number of injures including concussions, and other head and neck injuries. In 2000, he retired from the San Diego Chargers and shortly thereafter underwent an anterior cervical fusion at C5-C6. Other neck surgeries followed.
In 2014, Mr. Dimry applied for T&P Disability benefits under the Plan. The Plan states that an individual qualifies for T&P benefits if he is “substantially prevented from or substantially unable to engage in any occupation or employment for remuneration or profit.”
Dimry claimed he was disabled based on (1) cervical spine degenerative disc disease, stenosis, osteophytes at C3-4, C4-5, twice failed fusion at C5-6, C6-7; (2) lumbar spine-degenerative disc disease at T12-L1, L1-2, L5-S1; (3) focal segmental glomerulosclerois; (4) Crohn’s Disease; and (5) knees: bilateral sprain and MCL tear of the left knee.
In February 2015, the Plan’s Disability Initial Claims Committee denied Dimry’s application finding that he was not totally and permanently disabled because (1) the neutral orthopedist found that he was employable, and (2) he had not presented evidence that he received Social Security disability benefits.
Dimry appealed the Committee’s denial to the Retirement Board, which is the Plan Administrator. In November 2015, the Board voted unanimously to deny Dimry’s appeal concluding that he was not totally and permanently disabled within the meaning of Section 5.2(a) of Plan because the Plan’s neutral physicians reported, after examination, that Dimry was capable of employment. In reaching its decision, the Board noted that there was “potentially conflicting medical evidence” in the record and that “[t]o the extent some of the evidence suggested that you might be totally and permanently disabled, the Retirement Board credited the findings of the Plan’s neutral physicians over that evidence” because “[w]when presented with conflicting medical evidence, the Retirement Board generally has more confidence in the reports of its neutral physicians, who are instructed to evaluate Players fairly, without bias for or against the Player, and who have experience evaluating Players and other professional athletes.”
In March 2016, Dimry filed a complaint in federal court under ERISA. The district judge granted judgment in Dimry’s favor finding the Board abused its discretion, noting that its denial of the claim was “based upon an unreasonable bias in favor of Plan-selected physicians” and remanded the matter to the Board to re-evaluate Dimry’s T&P benefits claim.
Again, the Board denied Dimry’s request, leading to the instant appeal.
At the core of Dimry’s argument was that “there is a conflict of interest given the Plan-retained physicians’ financial (interests).”
The magistrate judge relied heavily on Demer v. IBM Corp. LTD Plan, 835 F.3d 893, 902 (9th Cir. 2016) as it reasoned that “given the frequency and amount of compensation the Plan-retained physicians had a financial interest in continuing to be retained by the Plan, it is difficult to discern why the physicians might infer that an opinion in favor of no disability would be more likely to lead to future retention. It is thus unsurprising that Dimry has not cited any case other than Dimry I that extends Demer to a multi-employer benefit trust fund maintained under the Taft-Hartley Act. Accordingly, the Court concludes that a straight-forward abuse-of-discretion standard applies.”
The court went on to summarize Dimry’s argument that the Board “abused its discretion in denying his benefits claim because (1) he was excluded from the remand process; (2) the denial was based on incomplete, inaccurate, and inconsistent reports from the Plan physicians; (3) the Board’s insistence on “objective evidence” is not supported by the Plan; (4) the Board failed to consider Mr. Dimry’s Social Security award; and (5) the Board failed to consider or obtain a vocational evaluation.”
The magistrate laid out an exhaustive position why there was an abuse of discretion.
Toward the end of the opinion, it wrote that the Board’s “glaring procedural error of conducting its review of Dimry’s appeal in secret and then, after denying his appeal, refusing even then to engage in a meaningful dialogue and instead telling Dimry to file a lawsuit is reason alone to find that the Board abused its discretion. Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011). Further, this error was not harmless. Providing Dimry, his attorney, and physicians the opportunity to participate in the appeal and comment on the new evidence might have persuaded the Board to revisit its unreasoned decision to require objective medical evidence given that its own medical director opined that for Dimry’s impairments the objective medical evidence would not be expected to always corroborate with legitimate pain complaints. A meaningful dialogue could have led to the Board actually grappling with the ALJ’s finding that the medical evidence ‘fully supported’ Dimry’s allegations. Instead, once again, the Board seemed intent on simply following the conclusions of its initially retained physicians, see Dimry I, 2018 U.S. Dist. LEXIS 41359, 2018 WL 1258147, at *4, and thus, once again, abused its discretion.
“Given the Court’s findings above, remand is the appropriate remedy. The Court expects that once the Board gives Mr. Dimry the full and fair review ERISA requires, and eliminates the mandate of objective evidence—a mandate not in the Plan and not in Dr. Jackson’s reports—that Mr. Dimry will be found disabled under the Plan. “
Charles Dimry v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, et al.; N.D. Cal.; 2020 U.S. Dist. LEXIS 168952, Case No. 19-cv-05360-JSC; 9/15/20
