Last month, a split panel of the Sixth Circuit concluded that a disability benefits plan administrator offers a full and fair review under ERISA even where it consults the same physician for both the initial claim as well as the subsequent appeal.
In Castor v. AT&T Umbrella Benefits Plan No. 3
, No. 17-3400, 2018 U.S. App. LEXIS 7494 (6th Cir. Mar. 26, 2018), the administrator denied benefits based on a lack of physical disability after consulting with an cardiologist. Id.
at *3. The claimant appealed, arguing a psychiatric component to her disability. Id.
at *4. In assessing her appeal, the administrator consulted with a psychiatrist as well as an internist, both of whom found no disabling condition. Id.
at *6. Significantly, the administrator also asked the cardiologist to review the updated file, and nothing in the appeal altered his earlier conclusion.
Although ERISA’s implementing regulations require that a plan administrator, on appeal, consult with a health care professional “who is neither an individual who was consulted in connection with the adverse benefit determination that is the subject of the appeal, nor the subordinate of any such individual,” 29 C.F.R. § 2560.503-1(h)(3)(v), a majority of the Court in Castor
concluded that, so long as new practitioners considered the claimant’s arguments on appeal, the regulations did not preclude the plan administrator from also consulting with the previously retained physician. Specifically, the Court pointed out: “The regulations do not speak to what more
an administrator can do when reviewing an appeal once an appropriate consultation with a new doctor has been made. They neither affirmatively preclude an administrator from seeking additional review, nor preclude an administrator from asking the original doctor whether his opinion has changed in light of new medical evidence.” Id.
Given the Sixth Circuit’s interpretation of the regulations at issue in Castor
, so long as other independent consultants are retained for appeal, it appears that
plan administrators can now consult the same consultant for both the initial claim decision as well as a later appeal without running afoul of ERISA’s requirements for a full and fair review.