You know the Ninth Circuit has taken the position that an “employee who cannot sit for more than four hours in an eight hour workday cannot perform ‘sedentary work that requires ‘sitting most of the time.’” Armani v. NW Mut. Life Ins. Co., 840 F.3d 1159, 1163 (9th Cir. 2016) (Emp. added.) But what if there is evidence in the record (like a job analysis) that the claimant’s job “could be performed by alternating sitting…

Some of the more challenging disability claims involve impairment resulting from Chronic Fatigue Syndrome.  There are no tests for Chronic Fatigue Syndrome, and the impairment assessment often relies heavily on self-reported symptoms and…the credibility of the claimant and the treating physician. But there are distinct ways to help the court assess these claims. This new case provides a helpful playbook of arguments to make in assessing chronic fatigue, or self-reported, disability types of cases. Lukianczyk …

You know that typically claimants seeking ERISA-governed benefits make claims for recovery under Section 1132(a)(1)(B). Now you are likely seeing more simultaneous assertions of equitable claims for breach of fiduciary duty and disgorgement under Section 1132(a)(3). A successful claimant asserting this theory may recover additional forms of monetary relief, and may get broader discovery. But the availability of relief under Section 1132(a)(3) claims is narrow: a claimant may pursue a Section 1132(a)(3) claim “only where…

You already know that ERISA plans frequently delegate discretionary authority to an administrator or fiduciary to make benefit decisions. When reviewing the claim decision, courts may examine whether the ERISA Plan administrator properly designated authority to a claims administrator to make benefit decisions for the Plan. If the delegation of authority is not done according to a process set forth in the ERISA Plan for designating administrators, the Court will apply the de novo standard…

You already know that an ERISA plan recipient may recover attorney fees when prevailing in an action to enforce rights under the plan. But to win attorney fees, the claimant must show: “[success] on [a] significant issue of litigation which achieves some of the benefit…sought in bringing the suit…’” something more than “‘trivial success on the merits’ or a ‘purely procedural victory….’” SO… what IS “trivial success on the merits” or a “purely procedural victory”?…

You already know that denials of ERISA-governed disability benefits are reviewed under a de novo standard unless the benefit plan gives the administrator discretionary authority to determine eligibility for benefits or to construe the terms of the plan. But courts sometimes override this grant of discretionary review and apply de novo review when there is a conflict of interest (the administrator both decides and funds the benefit) and there were procedural irregularities in the claims…

You know that many states ban discretionary language in ERISA plans.  This issue tees up litigation over what state law will apply –the choice of law issue. This new case is a good read because it provides helpful analysis when litigating choice of law issues: the structure of the plan may help win choice of law issues. Choice of law decisions may be more favorable when the employer’s plan is part of a trust with…