Eighth Circuit concludes that decision in Abram v. Cargill, Inc. does not apply under new ERISA regulations

April 2009


In Midgett v. Washington Group Int'l Long Term Disability Plan, __ F.3d __, 2009 WL 996682 (8th Cir. April 15, 2009), the Eighth Circuit considered the amended ERISA claim regulations in deciding whether a claimant received a "full and fair review" of the denial of benefits.  The court ultimately agreed with the Tenth and Eleventh Circuits and concluded that a plan is under no obligation to provide a claimant with copies of reports obtained during the appeal so they may comment on them prior to a final decision.


Since the day it was decided, counsel for plaintiffs in ERISA cases have relied on Abram v. Cargill, Inc., 395 F.3d 882 (8th Cir. 2005), when arguing that their clients did not receive a "full and fair review" of the denial of benefits.  In Abram, the Eighth Circuit held that the plan improperly failed to provide the claimant with a copy of a report from an independent medical examination that was prepared during the appeal.  According to the court, the claimant should have been permitted to review and respond to this "new information" before the final decision.  By failing to share the report, the plan deprived the claimant of a full and fair review.


A similar situation arose in Midgett; however, there was a critical difference.  Midgett's claim was governed by the amended ERISA claim that was effective January 1, 2002.  The Eighth Circuit concluded that, "this case presents one of those exceptional circumstances where a change in the law renders a prior decision non-binding."  Under the older version of the regulation, a claimant was entitled to review "pertinent" documents.  However, the old regulation did not define that term.  The new regulation changed the language.  It now states that a claimant is entitled to review "relevant" materials.  The term "relevant" is defined as materials "relied on in making the benefit determination."

Other language in the "new" regulation confirms that the purpose of the production of documents to a claimant is to evaluate whether to appeal an adverse determination.  Thus, the Eighth Circuit concluded that the requirement to produce documents only applies to materials that are before the plan at the time of denial, not during an appeal from the denial.  In reaching this conclusion, the court cited with approval to the Eleventh Circuit's decision in Glazer v. Reliance Standard Life Ins. Co., 524 F.3d 1241 (11th Cir. 2008).  The court also agreed with the Tenth Circuit in Metzger v. Unum Life Ins. Co., 476 F.3d 1161, 1166 (10th Cir. 2007), "that requiring a plan administrator to grant a claimant the opportunity to review and rebut medical opinions generated on administrative appeal 'would set up an unnecessary cycle of submission, review, re-submission and review."  Accordingly, the Eighth Circuit concluded that the plan did not deprive the claimant of a "full and fair review" when it did not provide with her peer review reports prepared during the appeal so that she could comment on them.

For more information, please contact Joshua Bachrach via e-mail at or by phone in our Philadelphia office at 215.627.6900.  Joshua also handled the Glazer case, which was relied on by the court in the Midgett case, as discussed above.

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