Dimry v. Bert Bell/Pete Rozelle NFL Player Retirement Plan

Background

Charles Dimry, a former National Football League player, applied in 2014 for total and permanent disability benefits under the Bert Bell/Pete Rozelle NFL Player Retirement Plan. The Plan provides those benefits when a person is substantially prevented from, or substantially unable to, work in any occupation for pay or profit. Dimry cited multiple medical conditions, including cervical and lumbar spine problems, kidney disease, Crohn’s disease, and knee injuries.

The Plan initially denied the application and later denied Dimry’s appeal, relying in part on examinations by Plan-selected physicians who concluded that he could work. In an earlier round of this case, the court found that the Board had abused its discretion by relying on an unreasonable preference for Plan-selected physicians and sent the claim back for reconsideration.

During the renewed review, the Plan’s medical director, Dr. Allen Jackson, prepared a report and answered follow-up questions from the Board. The Board did not tell Dimry that it had requested these reviews, did not provide him with the reports, and did not give him an opportunity to respond before again denying his claim. The Board also relied on the absence of objective medical evidence supporting the severity of Dimry’s pain. Meanwhile, the Social Security Administration had awarded Dimry disability benefits after finding that his medical evidence supported his pain complaints.

Standard of Review

The Plan gave the Board discretion to decide benefit claims, so the court reviewed the decision for abuse of discretion. Under that standard, a decision is improper if it is illogical, implausible, or unsupported by reasonable inferences from the record. The court concluded that a straightforward abuse-of-discretion standard applied rather than adding extra skepticism based on a structural conflict of interest. Although Dimry presented evidence that Plan-retained physicians had received substantial compensation, the court found it difficult to identify how those physicians would have understood that denying benefits would increase their chances of future retention by this multi-employer plan.

Reasons for Finding an Abuse of Discretion

First, the Board failed to provide the full and fair review required by ERISA. The Board conducted its renewed review in secret and relied on new reports without giving Dimry, his lawyer, or his physicians access to them or a chance to comment. The court rejected the Board’s argument that Dimry should have requested the documents. The applicable regulations required the Board to provide new evidence on which it intended to rely and allow a response before ruling.

Second, the Board effectively required objective medical proof of Dimry’s pain even though the Plan did not impose that requirement. Dr. Jackson had explained that pain from degenerative disc disease is not always predictable, quantifiable, or directly related to the severity of degenerative changes. The court concluded that the Board improperly treated the lack of objective evidence as a reason to reject pain that might not be objectively measurable.

Third, the Board did not meaningfully consider or explain its treatment of the Social Security Administration’s award. The Board was not required to reach the same conclusion as the Social Security Administration, but it had to consider the administrative law judge’s finding that the medical evidence supported Dimry’s pain complaints and explain why it disagreed. Instead, the Board relied on earlier Social Security denials, the differences between the two programs, and medical reports that the Social Security Administration had not reviewed, while failing to examine the evidence underlying the later award. The court found that this was not a principled and deliberative decision-making process.

Disposition and Remedy

The court held that the Board abused its discretion in denying Dimry’s disability claim. Because the record did not clearly establish that benefits necessarily had to be awarded, the appropriate remedy was a remand rather than an order requiring retroactive benefits. The court granted Dimry’s motion for judgment, denied defendants’ motion for judgment, and remanded the matter to the Board for further proceedings consistent with the order. The Board was reminded to provide Dimry a full and fair opportunity to participate in the review.