In Dimry v. Bert Bell/pete Rozelle NFL Player Ret. Plan, No. 20-17049, __F.App’x__, 2021 WL 3509349 (9th Cir. Aug. 10, 2021), a dispute over total and permanent disability benefits under ERISA, the Bert Bell/Pete Rozelle NFL Player Retirement Plan, The NFL Player Supplemental Disability Plan, and the plan administrator (“the Plan”) appealed a second favorable judgment to Charles Dimry and Dimry cross-appealed. The trial court determined that the Plan did not give Dimry a full and fair review and mandated “objective evidence” which is not required by the Plan. The court ordered a remand to the Plan for reconsideration.

The Ninth Circuit agreed with the district court that the Plan violated the requirement of “a meaningful dialogue between ERISA plan administrators and their beneficiaries.” Booton v. Lockheed Med. Ben. Plan, 110 F.3d 1461, 1463 (9th Cir. 1997). On remand after the first judgment in Dimry’s favor, the Plan did not inform Dimry that it was reopening the record to obtain a report from the Plan’s Medical Director, Dr. Allen Jackson. Excluding Dimry from the process following remand was procedural error. The court found that this error prevented the full development of the administrative record and that the district court should determine whether Dimry is entitled to benefits. Notably, both parties agreed that if a remand was necessary that the court should not remand to the Plan. Following Ninth Circuit precedent, the district court should decide Dimry’s entitlement to benefits.