Dimry v. The Bert Bell/Pete Rozelle NFL Player Retirement Plan et al
Filing
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ORDER by Judge James Donato on 59 Motion for Summary Judgment; 63 Motion for Judgment on Partial Findings. (jdlc1S, COURT STAFF) (Filed on 3/12/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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CHARLES DIMRY,
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Case No. 16-cv-01413-JD
Plaintiff,
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ORDER RE MOTIONS
v.
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Re: Dkt. Nos. 59, 63
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United States District Court
Northern District of California
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THE BERT BELL/PETE ROZELLE NFL
PLAYER RETIREMENT PLAN, et al.,
Defendants.
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Plaintiff Charles Dimry was a cornerback in the National Football League. He was a fifth
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round draft pick for the Atlanta Falcons in 1988, and played for several other clubs over a twelve-
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year career. Like many NFL veterans, he left the game with a number of physical injuries. The
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dispute in the parties’ cross-motions for summary judgment is whether the Retirement Board (the
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“Board”) of the Bert Bell/Pete Rozelle NFL Player Retirement Plan (the “Plan”) properly denied
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Dimry total and permanent disability benefits under the Plan and the Employee Retirement
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Income Security Act of 1974 (“ERISA”). Dkt. Nos. 59, 63.
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BACKGROUND
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The material facts are undisputed. The parties agree that the governing benefits agreement
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is the amended and restated Plan dated April 1, 2014. Administrative Record (“AR”) 001.1 The
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Plan is the product of collective bargaining, AR 006, and sets out in Article 5 and Article 8 the
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pertinent provisions for total and permanent (“T&P”) disability benefits.
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Article 5 states that a player will be deemed totally and permanently disabled if the Board
finds “that he has become totally disabled to the extent that he is substantially prevented from or
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All AR citations are contained in Exhibit A to Dkt. No. 61.
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substantially unable to engage in any occupation or employment for remuneration or profit,” and
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that this condition is permanent. AR 030. Article 8 vests the Board with “full and absolute
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discretion” to interpret and manage the Plan, and to decide claims for T&P benefits. AR 048-49.
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The Plan emphasizes that the Board’s discretion is “the broadest possible discretion permissible
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under ERISA and any other applicable laws.” AR 052. The Board’s voting members consist of
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three former players appointed by the NFL Players Association and three representatives
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appointed by the League. AR 048.
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Dimry applied on his own for T&P disability benefits in 2014. AR 093. He claimed
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stenosis and disc disease in his cervical spine, which is the neck area, and a limited range of
motion and severe pain following two fusion surgeries. AR 093, 097. He also claimed bilateral
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United States District Court
Northern District of California
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knee strains, torn ligaments, lumbar spine degeneration, kidney disease and Crohn’s disease, a
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disorder of the bowel. AR 093. Dimry stated that he had been unemployed since 2012 and had
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stopped working at his last job with a sports business because he “could no longer stand or lift,”
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“couldn’t perform job functions,” and could not concentrate from “exhaustion and ongoing pain.”
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AR 095, 097.
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Dimry submitted multiple physician assessments with the application. The main report
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was from Dr. Paul Murphy, who was Dimry’s primary treating physician. AR 099. Among other
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examination-based findings, Dr. Murphy noted chronic neck pain post-dating the fusion
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procedures, spinal disc herniation, and knee strains. AR 105-06. Dr. Murphy concluded that
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Dimry “is unable to be employed” due to these “industrially related” injuries. Id. Dr. Murphy
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completed a residual functional capacity questionnaire used by the Social Security Administration,
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and found that Dimry had no capacity for any meaningful work. AR 107-11. Dimry also
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provided reports from several other treatment providers who expressed findings and opinions
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similar to Dr. Murphy’s, although in more cursory form. See AR 112-49.
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In response to the application, the Board required Dimry to submit to an examination by a
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Plan-selected doctor. AR 159. At the Board’s request, Dr. Steven Meier, an orthopedic surgeon
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in Beverly Hills, California, AR 189, met with and physically examined Dimry in January 2015.
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AR 173. Dr. Meier found: (1) a decreased range of motion in Dimry’s cervical and lumbosacral
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spine but with capacity to perform mild to moderate activities; (2) no activity limitations in the
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right knee; and (3) no sitting, standing or walking limitations in the left knee. AR 187. He
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concluded that Dimry could not perform physically demanding work but that he had the capacity
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for light work and was not substantially unable to engage in any occupation. AR 188.
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In February 2015, the Board voted, apparently by mail ballots and not in person, to deny
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Dimry’s application on the ground that he did not meet the substantially unable to work standard
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for T&P disability benefits. AR 197-98. Minutes for the Board vote give no indication that it
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discussed or considered any of the medical reports Dimry submitted, or did anything to weigh or
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evaluate the record as a whole. Id.
The Board promptly advised Dimry of its determination. AR 201. The letter of decision
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United States District Court
Northern District of California
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said the Board “noted that the Plan neutral orthopedist -- Steven Meier, M.D., indicated that you
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are employable.” AR 202. No other physicians or medical reports are mentioned, and no
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explanation is given for the Board’s apparent decision to disregard the findings and opinions of
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Dimry’s treatment providers.
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Dimry hired a lawyer and filed an internal appeal. AR 218. For the most part, the appeal
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repeated the prior medical reports submitted with the original application, and criticized the report
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by Dr. Meier for alleged inaccuracies and inconsistencies. The appeal also raised questions about
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Dr. Meier’s independence and neutrality. It asked for information about how much the Plan had
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paid Dr. Meier, and how many of his evaluations had been favorable to the Plan versus the
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claimant. AR 231-32. The administrative record does not show a response by the Plan.
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After receiving the appeal, the Board again required Dimry to submit to a medical exam by
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a Plan-selected doctor. AR 279. This time, the Board directed Dimry to Dr. James Chen, an
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orthopedic surgeon in San Francisco, California. AR 299. In September 2015, Dr. Chen met with
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and physically examined Dimry. Id. Dr. Chen found signs of degenerative disc disease in
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Dimry’s spine and loss of “two motion segments” but no muscle weakness and no significant knee
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issues. AR 304-06. He concluded that Dimry should not engage in physical labor but “could do
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desk or sedentary work.” AR 306.
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In November 2015, the Board voted to deny Dimry’s appeal. AR 339. This time, the vote
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appears to have been in a live meeting and not by mail, but the minutes again do not show that the
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Board gave any consideration to Dimry’s medical submissions, or engaged in an evaluation of the
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record as a whole. Id.
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Dimry was again promptly advised of this determination. AR 342. This letter of decision
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provided a somewhat more detailed explanation of the basis of the denial than the prior letter. The
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letter referred to Dr. Meier’s report, and noted that a second “neutral physician,” Dr. Chen, had
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examined Dimry and reached conclusions about his employability that were consistent with those
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of Dr. Meier. AR 343. The letter acknowledged “potentially conflicting medical evidence” in the
record, but stated that the Board had “credited the findings of the Plan’s neutral physicians over
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that evidence” because it “generally has more confidence in the reports of its neutral physicians.”
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Id. The letter added that “neutral evaluations are uniformly accepted and relied upon” by the
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Board. Id.
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While this process was unfolding under the Plan, Dimry separately pursued a disability
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claim with the Social Security Administration (“SSA”). In August 2016, an administrative law
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judge with the SSA determined that Dimry had been disabled as of October 2012 within the
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meaning of the Social Security Act. Dkt. No. 66-1 at 1. Based in part on testimony by a
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vocational expert, the ALJ also found that Dimry’s relevant work experience consisted of being a
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professional athlete and coach, and that he could not meet the demands of that work or transfer
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those skills to any other job. Id. at 7. The ALJ concluded with the determination that “there were
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no jobs in the national economy that the individual [Dimry] could perform.” Id. at 8. The parties
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agree that the SSA decision came out after the Board’s denial of benefits, and was not considered
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in the Board’s decisionmaking.
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DISCUSSION
As the Plan acknowledges, Dimry supported his benefits application with “some evidence
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showing that he was totally and permanently disabled.” Dkt. No. 59 at 3. The question is whether
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the Board properly exercised its discretion to deny an award of benefits.
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The parties agree, correctly, that the Board’s decision to deny benefits is reviewed for
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abuse of discretion. Boyd v. Bert Bell/Pete Rozelle NFL Players Retirement Plan, 410 F.3d 1173,
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1178 (9th Cir. 2005). The Court’s practice is to conduct that review on summary judgment, and
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so treats all the pending motions as for summary judgment. See also Rabbat v. Standard Ins. Co.,
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894 F. Supp. 2d 1311, 1313 (D. Or. 2012) (and cases cited therein). “In the ERISA context, ‘a
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motion for summary judgment is merely the conduit to bring the legal question before the district
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court and the usual tests of summary judgment, such as whether a genuine dispute of material fact
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exists, do not apply.’” Harlick v. Blue Shield of California, 686 F.3d 699, 706 (9th Cir. 2012)
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(internal citation omitted).
Whether the review for abuse of discretion should be tempered with a degree of skepticism
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is a nuanced issue. The existence of a structural conflict -- which arises when the same entity that
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pays the benefits also decides the claims -- warrants review for abuse of discretion with
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“skepticism.” Demer v. IBM Corp. LTD Plan, 835 F.3d 893, 900 and n.3 (9th Cir. 2016). Dimry
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does not argue that a structural conflict may be present here, but he contends that skepticism is
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nonetheless appropriate because the Plan relied on referral doctors who had a financial conflict of
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interest. Our circuit has held that the reliance of a benefits plan “on the reports of its retained
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experts who have a financial incentive to make findings favorable” to the plan “may warrant
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skepticism,” even in the absence of a structural conflict. Id. at 902. The concern is that a doctor
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who reaps substantial income or business benefits from plan referrals might allow economic self-
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interest to influence medical opinions and judgments about a claimant’s disabilities. Id. at 904;
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see also Black & Decker Disability Plan v. Nord, 538 U.S. 822, 832 (2003) (“physicians
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repeatedly retained by benefits plans may have an ‘incentive to make a finding of ‘not
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disabled.’’”) (internal citation omitted). This is not to say that referral physicians are per se biased
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against claimants any more than treating physicians are per se biased in favor of their patients.
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The party claiming a conflict bears the burden of producing “evidence of a financial conflict
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sufficient to warrant a degree of skepticism.” Demer, 835 F.3d at 902. If that showing is
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successful, the burden shifts to the plan to counter it. Id.
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Dimry tenders evidence that the Plan paid Dr. Meier, the first orthopedist it retained to
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examine Dimry, approximately $188,683 in direct compensation between April 2014 and May
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2015.2 That period includes the time in January 2015 when Dr. Meier examined Dimry. This
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satisfies Dimry’s burden of production. The amount paid to Dr. Meier is substantial and exceeds
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the amounts found to be of concern in Demer. 835 F.3d at 902.
The Plan has not rebutted this showing. It does not contest the dollar amounts paid to Dr.
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Meier, and says mainly that they are of no moment because the Plan’s referral physicians are paid
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a fixed fee for examinations regardless of their final conclusions. Dkt. No. 72 at 1. That may be,
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but the observation is off point because the inquiry under Demer is whether the magnitude of the
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payments raises a fair inference of a financial conflict. 835 F.3d at 902. The sizable payments to
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Northern District of California
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Dr. Meier do just that, and the Plan has not negated the inference by tendering evidence of
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“neutrality in practice.” Id. at 903. The Plan suggests that Demer is distinguishable because the
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relationship between the doctors and the plan there was “nothing like” the one here, Dkt. No. 72 at
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2, but the Plan does not explain why that is so. In both Demer and here, the doctors were
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“independent” outside physicians called in by the plans to evaluate the claimants. See Demer, 835
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F.3d at 897-98 (noting use of “independent physician consultants”). The fact that the exams in
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Demer were on the medical records is inconsequential. The conflict analysis turns on the financial
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incentives to shade reports and conclusions, and not on the nature of the examination.
The financial conflict adds a modicum of skepticism to the standard of review. But the
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result here would be the same even under a plain review for abuse of discretion. The problem is
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that the Board denied benefits based upon an unreasonable bias in favor of Plan-selected
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physicians. Although the Board noted “potentially conflicting medical evidence contained in the
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record,” it did not resolve the conflicts by examining the evidence or delving into the record
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before it. AR 343. It simply adopted the opinions of its retained physicians by default. Id. The
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Board underscored the reflexive and non-discretionary quality of this action by stating that it
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This evidence is in Dimry’s request for judicial notice, Dkt. No. 71-1 at pg. 3-8 (a single page
number and not pages 3 through 8), which the Court grants for this document to evaluate the
conflict. Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 970 (9th Cir. 2006) (en banc).
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“uniformly” accepts and relies upon the reports of its retained doctors. Id. It is true, as the Plan
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notes, that the Board owed no special deference to the opinions of Dimry’s treating physicians.
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Black & Decker, 538 U.S. at 831. It was also entitled to treat a single medical opinion as
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sufficient to adjudicate Dimry’s claim. Boyd, 410 F.3d at 1179. But it was not entitled to decide a
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benefits claim by mere default to a Plan-selected physician. That is the abandonment of
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discretion, not the exercise of it.
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The Board’s conduct is all the more questionable because it is hardly a self-evident
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proposition that Plan-selected physicians are always more neutral and reliable than a claimant’s
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treating physicians, particularly when an inference of financial conflict arises. It is certainly
possible that in any given claim proceeding involving disputed issues, the Plan-selected physicians
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may reach the sounder conclusions. That might even have been the case here, but nothing in the
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administrative record gives any explanation to that end.
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The Board has little to say in response to this problem. Its main argument is that a denial
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of benefits to a former player was upheld in Boyd and that this Court should do the same. Boyd
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does not compel that result because the record there did not feature an automatic default in favor
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of a Plan-selected physician, or an inference of financial conflict for that physician. See 410 F.3d
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at 1178-79. The Board’s suggestion that “‘uniformly’ merely highlights the fact that both sides of
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the Board [the player and League voting members] place confidence in the Plan’s neutral
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physicians,” Dkt. No. 59 at 15, does not meaningfully address the issue.
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Consequently, the Board’s denial of benefits to Dimry was an abuse of discretion.
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Dimry’s request for discretionary statutory penalties under 29 U.S.C. § 1132(c)(1) is declined.
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Dkt. No. 63 at 18. The parties dispute whether the penalties are available against the Plan itself,
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but even assuming purely for discussion that they are, the record does not show bad faith on the
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Plan’s part or that Dimry was prejudiced by any delays in receiving documents. Kronzer v. Hintz,
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601 Fed. App’x. 687, 690 (9th Cir. 2012).
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CONCLUSION
Summary judgment is granted for Dimry on the abuse of discretion in the denial of his
benefits application. Statutory penalties are declined. Summary judgment is denied for
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defendants.
The case is remanded to the Board for re-evaluation of Dimry’s T&P benefits claim.
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Remand is appropriate because the record is mixed and does not clearly establish Dimry’s
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eligibility for benefits. On remand, the Board may want to consider the SSA decision that was not
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previously available to it. The Court has not relied on the SSA decision for the conclusions
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reached here.
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IT IS SO ORDERED.
Dated: March 12, 2018
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JAMES DONATO
United States District Judge
United States District Court
Northern District of California
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