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This week’s notable decision is Gross v. Sun Life Assurance Co. of Canada, No. 16-1958, __F.3d__, 2018 WL 460203 (1st Cir. Jan. 18, 2018).  It’s jam packed with lots of goodies concerning consideration of chronic pain, surveillance, sanctions, prejudgment interest, and attorneys’ fees.  

Plaintiff Gross worked as an optician and office manager until August 2006, when debilitating symptoms of chronic and severe pain caused by reflex sympathetic dystrophy (“RSD”) and fibromyalgia forced her into disability leave.  Unfortunately, her case dragged on for many years, including two trips to the First Circuit Court of Appeals.  On remand, the district court determined that Gross was entitled to benefits and attorneys’ fees.  In the most recent appeal, Sun Life challenged the district court’s determination that the expanded administrative record supports Plaintiff’s claim of disability. 
Continue Reading First Circuit Holds that Claimant Is Disabled by RSD and Fibromyalgia; Sanctions against Her Attorney for Threatening to Sue Insurer’s “Independent” Doctor Are Not Warranted.

Happy MLK Day!  In honor of this American civil rights hero, I want to share one of his famous quotes that has been resonating with me as of late:  If you can’t fly then run, if you can’t run then walk, if you can’t walk then crawl, but whatever you do you have to keep moving forward.

Today’s ERISA Watch is out on the late side since the kids were home with me all day from school and I just couldn’t get them to help me with the summaries.  We did see Paddington 2, however, but I won’t issue any spoiler alerts.  Hopefully these summaries make for good bedtime reading.
Continue Reading Court Denies Insurer Equitable Trust over Erroneously Paid Life Insurance Benefits Since It Seeks Unavailable “Legal” Relief

This week’s notable decision is from the land of ERISA preemption:  Allied Constr. Indus. v. City of Cincinnati, No. 16-4248, __F.3d__, 2018 WL 283775 (6th Cir. Jan. 4, 2018).  The City of Cincinnati and Laborers International Union of North America, Local 265 appealed the district court’s decision that three City ordinance provisions concerning bidder specifications for certain City projects were preempted by ERISA. The Sixth Circuit reversed the district court and held that the City was acting as a market participant in enacting the Ordinance, and therefore these provisions are not preempted by ERISA.  

By way of background, in Bldg. & Constr. Trades Council of the Metro. Dist. v. Associated Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993) (“Boston Harbor”), the Supreme Court determined that a state agency’s bidding specifications for selecting contractors for the state-funded clean-up of the Boston Harbor was not preempted by the NLRA because the state acted as a proprietor rather than a regulator in imposing the requirement.  In this case, the City argued that the market-participant doctrine set forth in Boston Harbor should be applied to ERISA.  
Continue Reading Sixth Circuit Adopts Boston Harbor Market-Participation Doctrine to ERISA Preemption