TALANA ORZECHOWSKI v. BOEING COMPANY; AETNA LIFE INSURANCE COMPANY,

Below is another case that examines a termination of ERISA long-term disability benefits for abuse of discretion.  This is a very important determination and is one that the Courts are constantly examining.  If your benefits have been terminated, or if you are trying to get initial benefits, contact us — we can help.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TALANA ORZECHOWSKI,
Plaintiff-Appellant,
v.
THE BOEING COMPANY NON-UNION
LONG-TERM DISABILITY PLAN, Plan
Number 625, an ERISA Plan;
BOEING COMPANY; AETNA LIFE
INSURANCE COMPANY,
Defendants-Appellees.
No. 14-55919
D.C. No.
8:12-cv-01905-
CJC-RNB
OPINION
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted August 30, 2016
Pasadena, California
Filed May 11, 2017
Before: Alex Kozinski and Jay S. Bybee, Circuit Judges,
and Donald E. Walter,* District Judge.
Opinion by Judge Bybee
* The Honorable Donald E. Walter, United States District Judge for
the Western District of Louisiana, sitting by designation.
ORZECHOWSKI V. BOEING CO. NON-UNION
LONG-TERM DISABILITY PLAN
2
SUMMARY**
Employee Retirement Income Security Act
The panel reversed the district court’s judgment, after a
bench trial, in favor of the defendants in an ERISA action
challenging a decision to terminate the plaintiff’s long-term
disability benefits.
The district court reviewed the benefits decision for an
abuse of discretion because the ERISA plan gave defendants
discretionary authority. The panel held that de novo review
was required under California Insurance Code § 10110.6,
which voided the discretionary clause contained in the plan.
The panel held that § 10110.6 is not preempted by
ERISA because it falls within the savings clause set forth in
29 U.S.C. § 1144(b)(2)(A). Agreeing with the Seventh
Circuit, the panel concluded that § 10110.6 is directed toward
entities engaged in insurance, and it substantially affects the
risk-pooling arrangement between the insurer and the insured.
The panel held that § 10110.6 applied to the plaintiff’s
claim because the relevant insurance policy renewed after the
statute’s effective date. The panel remanded the case to the
district court.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ORZECHOWSKI V. BOEING CO. NON-UNION
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COUNSEL
Russell George Petti (argued), Law Offices of Russell G.
Petti, La Canada, California; Glenn R. Kantor and Peter S.
Sessions, Kantor & Kantor LLP, Northridge, California; for
Plaintiff-Appellant.
Ronald Keith Alberts, Matthew G. Kleiner, Jessica Wolff,
Michelle L. Steinhardt, and Adelle Greenfield, Gordon &
Rees LLP, Los Angeles, California, for Defendants-
Appellees.
OPINION
BYBEE, Circuit Judge:
Talana Orzechowski challenges Aetna Life Insurance
Company’s (Aetna) decision to terminate her long-term
disability benefits under a plan created by her employer, The
Boeing Company (Boeing). Under the Employee Retirement
Income Security Act of 1974 (ERISA), we may review a
denial of benefits. Where a plan grants discretion to an
administrator to determine benefits, we ordinarily review for
abuse of discretion. By statute, however, California has
voided such provisions conferring discretionary authority to
ERISA plan administrators such as Aetna. Cal. Ins. Code
§ 10110.6(a). The district court held that California’s statute
did not apply to Boeing’s plan and upheld Aetna’s denial of
benefits to Orzechowski. We disagree and hold that
§ 10110.6(a) applies here. We reverse the district court’s
judgment and remand the case to the district court to review
Aetna’s decision de novo.
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I. BACKGROUND
A. Boeing’s ERISA Plan
The lawsuit arises from Aetna’s termination of
Orzechowski’s benefits under a health and welfare benefits
plan that Boeing offers to its non-union employees (the Plan),
which is governed by ERISA. The principal plan document
is The Boeing Company Master Welfare Plan (Master Plan).
This document provides general information about the
various benefit plans Boeing offers, but does not detail the
various benefits payable through the Plan. The Master Plan
has a broad grant of discretionary authority, which has been
delegated to a service representative, Aetna.1 This grant
includes the power to “determine all questions that may arise
including all questions relating to the eligibility of Employees
and Dependents to participate in the Plan and amount of
benefits to which any Participant or Dependent may become
entitled.”
The Master Plan incorporates by reference various
component benefit programs and the applicable Governing
Documents describing the entitlement to benefits under those
programs. One such benefit program is The Boeing
Company Non-Union Long-Term Disability Plan (PN 625) at
issue in this case. The Summary Plan Description, a
Governing Document, is a description of the plan which the
Plan Administrator is required to provide under ERISA.
1 Orzechowski disputes whether Boeing actually delegated its
discretionary authority to Aetna. This argument is raised for the first time
on appeal, and we will not consider it. Smith v. Marsh, 194 F.3d 1045,
1052 (9th Cir. 1999).
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29 U.S.C. § 1022. Boeing’s Summary Plan Description
explains that insured employees are eligible for long-term
benefits when they become disabled. For the first 24 months,
“disabled” is defined as the employee’s inability to perform
“the material duties of [the employee’s] own occupation” due
to an injury or illness. (Emphasis added). After 24 months,
disability is redefined so that an employee is disabled if she
is “unable to work at any reasonable occupation for which
[she] may be fitted by training, education, or experience.”
(Emphasis added). There are exclusions or limitations on the
payment of long-term benefits. Relevant here, the long-term
benefits plan covers conditions for a maximum of 24 months
if the “primary cause” of the disability is “mental illness.”
Aetna issued two documents, a policy and a certificate,
which fund the disability benefits and are Governing
Documents incorporated into the Master Plan.2 Through the
Aetna Life Insurance Company Group Life and Accident and
Health Insurance Policy No. 000707 (Policy) issued to
Boeing, Aetna agreed to fund and administer long-term
disability benefits to employees insured under the Boeing
2 Aetna argues the Policy is not a Governing Document. A Governing
document is defined as
the applicable certificate of insurance booklets issued
by an insurance company, summary plan descriptions
or other documents distributed by the Company and
intended by the Plan Administrator to be Governing
Documents, including summaries of material
modification, applicable trust agreements or other
funding vehicles . . . .
The Policy in question is clearly a “funding vehicle” and meets the
definition.
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plan. The Policy includes a grant of discretionary authority
to Aetna to “review all denied claims,” “determine whether
and to what extent employees and beneficiaries are entitled to
benefits,” and “construe any disputed or doubtful terms of the
policy.” The Policy further specifies that “Aetna shall be
deemed to have properly exercised such authority unless
Aetna abuses its discretion by acting arbitrarily and
capriciously.”
B. Orzechowski Becomes Disabled
Talana Orzechowski worked at Boeing until February 27,
2009. In 2004, she was diagnosed with fibromyalgia and
chronic fatigue syndrome. In January and February 2009,
Orzechowski began suffering memory problems and
increases in fatigue. Orzechowski suffered from a number of
serious symptoms of largely unknown cause, including
fatigue, loss of motor control, spinal and joint pain, and loss
of cognitive functioning. Some of the symptoms appeared to
be psychological in nature, including depression, obsessive
compulsions, and suicidal thoughts. Other symptoms were
more typical of physical illness, such as profuse sweating,
muscle and nerve pains, and lung weakness. She also
suffered from a wide range of other physical ailments,
including fatigue, headaches, tiredness, extended periods of
sleeping, asthma, decreasing muscle tone, and nausea.
Orzechowski saw numerous doctors to attempt to
diagnose and address these issues. In February 2009,
Orzechowski applied for short-term disability benefits under
Boeing’s employee benefits plan, which Aetna approved for
the maximum duration of six months (26 weeks), until July
28, 2009. Aetna then completed a long-term disability
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review, and approved long-term disability benefits under the
“own occupation” definition of disability effective July 29,
2009. This benefits period would run through July 28, 2011.
In 2010, Aetna informed Orzechowski that the definition
of disability would change from the “own occupation” to
“any reasonable occupation” standard after her current benefit
period ended. Aetna requested documentation to support her
disability claim under the new standard.
Aetna received substantial medical records prepared by
Orzechowski’s physicians. It then sent Orzechowski’s file to
two physicians to review, a psychiatrist and a neurologist.
Neither examined her. The psychiatrist agreed with
Orzechowski’s physicians that she could perform no work,
including “even simple, routine and repetitive work duties
reliably and safely.” His conclusion was based on her
psychiatric impairments, and the report noted that “potential
physical impairment [was] outside the scope of [his] expertise.” The neurologist acknowledged her extensive
diagnoses, including “chronic fatigue, mood disorder, adrenal
disorder and inflammatory polyarthropathy,” and her
symptoms of “fatigue, depression, memory impairment . . .
loss of motor strength [and] deteriorating motor and cognitive
skills,” but he, however, concluded she had “[n]o functional
limitations” on her ability to work and that she “can likely
perform own occupation (light)” with “[n]o limitations or
restrictions.” Based on these reports, Aetna denied
Orzechowski’s claim.
In a response to Aetna’s reviewers, Orzechowski’s own
treating physician wrote a letter formally disagreeing:
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It is concerning to me that a simple common
sense review of the multiple historic findings
detailed thoroughly in my monthly hour long
evaluations of the patient would make it quite
clear that this patient is not able to perform
any level of work. She has not been able to
care for herself without assistance and is
unable to even administer her own medication
. . . .
And while no specific neurological cause had been
discovered for her condition, he noted that “if the patient has
no neurological disorder, why has she remained so
neurologically and functionally impaired? It is clear in this
case that the absence of evidence does not constitute evidence
of absence.”
Aetna asked its outside reviewing neurologist to examine
her file again. After a peer-to-peer conference with her
doctors, he again concluded that Orzechowski’s symptoms
must be psychiatric in origin because there is no definite
evidence of a neurologic diagnosis. In July 2011, Aetna
terminated payment of Orzechowski’s long-term disability
benefits based on its determination that her disability is
caused by a mental condition, more specifically depressive
disorder and mood disorder, which falls under the Plan’s 24-
month mental health limitation. Aetna determined she was
physically capable of “light work.”
Orzechowski’s attorney appealed Aetna’s denial and
provided additional documentation showing that
“Orzechowski’s depression and anxiety symptoms are clearly
secondary to her medical conditions.” Aetna referred
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Orzechowski’s evidence to yet a third reviewer. He found
that Ms. Orzechowski had “no functional impairment” that
would preclude her ability to perform any reasonable
occupation.
Orzechowski’s primary physician sent another letter in
disagreement and pointed out the problems with attempting
to diagnose Orzechowski’s medical condition based only on
a paper review and suggested Aetna examine the patient in
person:
[B]asing your assessment solely on the
“provided documentation” is as silly as trying
to assess the quality of a meal at a restaurant
by reading the menu’s description without
actually tasting the dish.
He also attacked Aetna’s attempts to evaluate the severity of
the chronic fatigue Orzechowski experienced, through
objective evidence, when, by definition, there is no objective
evidence of chronic fatigue.
In June 2012, Aetna upheld its decision to terminate
Orzechowski’s long-term disability benefits, stating that
“there was insufficient medical evidence to support
[Orzechowski’s] continued disability for the period of July
29, 2011, and beyond based upon any physical conditions.”
C. Orzechowski Appeals to the District Court
Orzechowski sought district court review under ERISA,
29 U.S.C. § 1132, of Aetna’s determination that she fell into
the mental health exception and was not totally disabled, as
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required for a continuation of benefits under Boeing’s long
term disability plan. Following a bench trial, the district
court ruled in favor of Boeing.
The district court applied an abuse of discretion standard
of review to Orzechowski’s claim, rather than a de novo
standard. Orzechowski argued that California Insurance
Code § 10110.6 voided the discretionary clause contained in
the Plan. The district court, however, held that § 10110.6
does not apply retroactively, and found that the Master Plan
was last issued or renewed January 1, 2011, a year before the
statute became effective. Therefore, it held that the statute
did not render any provision of the Master Plan void and so
abuse of discretion was the appropriate standard of review.
Applying that standard, the District Court held that “Aetna’s
decision to terminate Ms. Orzechowski’s [long-term] benefits
was supported by substantial evidence in the record and was
not an abuse of discretion.”
This appeal followed.
II. STANDARD OF REVIEW
“We review de novo the district court’s choice and
application of the standard of review to decisions by ERISA
fiduciaries . . . .” Pannebecker v. Liberty Life Assurance Co.
of Bos., 542 F.3d 1213, 1217 (9th Cir. 2008).
III. DISCUSSION
A denial of ERISA benefits challenged under 29 U.S.C.
§ 1132 “is to be reviewed under a de novo standard unless the
benefit plan gives the administrator or fiduciary discretionary
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authority to determine eligibility for benefits or to construe
the terms of the plan.” Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 115 (1989). If an insurance contract has
a valid discretionary clause, the decisions of the insurance
company are reviewed under an abuse of discretion standard.
See id. at 111; Stephan v. Unum Life Ins. Co. of Am., 697 F.3d
917, 928 (9th Cir. 2012).
We previously observed that discretionary clauses have
been the subject of much controversy. See Standard Ins. Co.
v. Morrision, 584 F.3d 837, 840–41 (9th Cir. 2009)
(explaining arguments for and against discretionary clauses).
Opponents believe such clauses lead to inappropriate claim
practices, as insurers may use them as a shield to deny valid
claims. Id. Supporters, meanwhile, argue they keep
insurance costs manageable. Id. Resolving the merits of
discretionary clauses is thankfully not before us; individual
states make that policy determination for themselves. In
response to a particularly notorious example of an insurer
who had used discretionary clauses to boost its profits by
intentionally denying valid claims, a number of states acted
via statute, regulation, or administrative action to ban or limit
discretionary clauses. See Saffon v. Wells Fargo & Co. Long
Term Disability Plan, 522 F.3d 863, 867 (9th Cir. 2008).
California Insurance Code § 10110.6 is one such example
of state legislation limiting discretionary clauses. Section
10110.6 provides in relevant part:
(a) If a policy, contract, certificate, or
agreement offered, issued, delivered, or
renewed, whether or not in California, that
provides or funds life insurance or disability
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insurance coverage for any California resident
contains a provision that reserves
discretionary authority to the insurer, or an
agent of the insurer, to determine eligibility
for benefits or coverage, to interpret the terms
of the policy, contract, certificate, or
agreement, or to provide standards of
interpretation or review that are inconsistent
with the laws of this state, that provision is
void and unenforceable.
(b) For purposes of this section, “renewed”
means continued in force on or after the
policy’s anniversary date.
Cal. Ins. Code § 10110.6(a), (b). The statute, which became
effective on January 1, 2012, is “self-executing”; thus, if any
discretionary provision is covered by the statute, “the courts
shall treat that provision as void and unenforceable.” Id.
§ 10110.6(g).
Orzechowski argues that the district court erred when it
refused to apply § 10110.6(a) to Boeing’s Plan and,
accordingly, applied the wrong standard of review. Boeing
has two responses. First, it argues that ERISA preempts the
California statute. Second, following the district court,
Boeing argues that even if § 10110.6(a) is not preempted, it
does not apply retroactively to Boeing’s Plan. For the
reasons explained below, we conclude that § 10110.6(a) is
not preempted and applies to Boeing’s Plan; the district court
should have reviewed Orzechowski’s claim de novo.
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A. California Insurance Code § 10110.6 Is Saved from
ERISA Preemption
ERISA preempts “any and all State laws insofar as they
may now or hereafter relate to any employee benefit plan.”
29 U.S.C. § 1144(a). Nevertheless, ERISA also has a saving
clause that saves from preemption “any law of any State
which regulates insurance, banking, or securities.” Id.
§ 1144(b)(2)(A). So, although ERISA has broad preemptive
force, its “saving clause then reclaims a substantial amount of
ground.” Rush Prudential HMO, Inc. v. Moran, 536 U.S.
355, 364 (2002).
No one disputes that the California law comes within the
broad terms of the preemption clause because it “relate[s] to
any employee benefit plan.” 29 U.S.C. § 1144(a). In order
to take advantage of the saving clause in § 1144(b)(2)(A),
California’s statute must satisfy the two-part test set forth in
Kentucky Ass’n of Health Plans v. Miller, 538 U.S. 329, 342
(2003). First, the law must be “specifically directed toward
entities engaged in insurance,” and second, it “must
substantially affect the risk pooling arrangement between the
insurer and the insured.” Id. at 342. Section 10110.6 meets
both prongs of the Miller test.
1. The statute is directed toward entities engaged in
insurance
A law is specifically directed toward entities engaged in
insurance if it is “grounded in policy concerns specific to the
insurance industry.” UNUM Life Ins. Co. of Am. v. Ward,
526 U.S. 358, 372 (1999) (noting that was “key” to its
decision). Boeing asks us to read “insurance industry”
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literally: “Boeing, a leading aerospace company, is not
engaged in the business of insurance” and its Master Plan is
“not insurance.” The argument is not without some logic, but
we think the Supreme Court’s decision in Miller and our
decision in Morrison foreclose it.
In Miller, the Court considered preemption of Kentucky’s
“Any Willing Provider” (AWP) laws, which prevent health
insurers from discriminating against providers within their
area who are willing to meet the terms and conditions of
participation. Miller, 538 U.S. at 332. The insurance
companies argued that the Kentucky law swept too broadly
because “the AWP laws equally prevent providers from
entering into limited network contracts with insurers, just as
they prevent insurers from creating exclusive networks in the
first place.” Id. at 334. However, the Court found that the
saving clause nonetheless applied because “[r]egulations
‘directed toward’ certain entities will almost always disable
other entities from doing, with the regulated entities, what the
regulations forbid; this does not suffice to place such
regulation outside the scope of ERISA’s saving clause.” Id.
at 335–36. ERISA’s saving clause “saves laws that regulate
insurance, not insurers.” Id. at 334.
In Morrison, we gave effect to a Montana statute that
required the State Auditor to disapprove insurance contracts
with a discretionary clause. The insurance company
challenging the statute argued that the law was preempted
because it was “not specifically directed at insurance
companies,” but was “instead directed at ERISA plans,” and
thus “ha[d] an effect on third parties.” Morrison, 584 F.3d at
842. We rejected the attempt to distinguish between a law
directed at insurance companies and a law directed at ERISA
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plans and procedures. Id. We explained that ERISA plans
“are a form of insurance,” even when issued by a corporation
whose principal business is not insurance. Id. Citing Miller,
we held: “That an insurance rule has an effect on third parties
does not disqualify it from being a regulation of insurance.”
Id.
Our decision is consistent with holdings of other circuits.
The Seventh Circuit recently addressed an Illinois statute
similar to § 10110.6 in Fontaine v. Metropolitan Life
Insurance Co., 800 F.3d 883 (7th Cir. 2015). MetLife, the
ERISA plan administrator for a law firm, denied long-term
benefits to one of the firm’s partners. As in this case, “[b]oth
sides presented extensive medical evidence” and “[t]he
standard of review [was] the pivotal issue.” Id. at 885–86.
MetLife argued that the Illinois statute was “not specifically
directed toward entities engaged in insurance because it
prohibits a plan sponsor . . . from delegating discretionary
authority to the insurer of an employee benefit plan.” Id. at
887. Applying Miller and citing our decision in Morrison
with approval, the court held:
While [the law firm] is not an insurer and is
nevertheless affected by [the discretionary
clause prohibition], that does not mean that
[the law] is not specifically directed toward
entities engaged in insurance. The Supreme
Court rejected essentially the same too-clever
argument in Miller . . . . Prohibitions on
discretionary clauses, like any-willingprovider
laws, have similarly inevitable
effects on “entities outside the insurance
industry.” Just as in Miller, that does not
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change their character as insurance
regulations.
Id. (internal citation omitted). The court also rejected the
argument that because “the discretionary clause in this case
is not actually in an insurance policy but in an ERISA plan
document,” the statute was not a law specifically directed
towards entities engaged in insurance. The Seventh Circuit
termed it a “hyper-technical argument”:
Whether a provision for discretionary
interpretation is placed in an insurance policy
or in a different document is arbitrary and
should make no legal difference. If MetLife’s
interpretation of ERISA’s saving clause were
correct, then states “would be powerless to
alter the terms of the insurance relationship in
ERISA plans; insurers could displace any
state regulation simply by inserting a contrary
term in plan documents. This interpretation
would virtually ‘read the saving clause out of
ERISA.’”
Id. at 888 (quoting Ward, 526 U.S. at 376); see also Am.
Council of Life Insurers v. Ross, 558 F.3d 600, 602 (6th Cir.
2009) (holding that Michigan’s regulation banning
discretionary clauses was saved from preemption).
We too conclude that § 10110.6(a) regulates “entities
engaged in insurance,” Miller, 538 U.S. at 342, even if they
are not insurance companies. Section 10110.6 is directed at
“insurance, not insurers,” id. at 334, because it covers “a
policy, contract, certificate, or agreement . . . that provides or
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funds life insurance or disability insurance coverage,” Cal.
Ins. Code § 10110.6(a).
2. The statute substantially affects the risk-pooling
arrangement
California’s law substantially affects the risk-pooling
arrangement between the insurer and the insured, satisfying
the second part of Miller. This requirement is aimed at
ensuring that the laws in question are “targeted at insurance
practices, not merely at insurance companies.” Morrison,
584 F.3d at 844.
As we recognized in Morrison, bans on discretionary
clauses, such as § 10110.6, clearly alter “the scope of
permissible bargains between insurers and insureds.” Id.
(quoting Miller, 538 U.S. at 338–39). In Morrison, we held
that a regulation disapproving of discretionary clauses
“substantially affect[ed] the risk pooling arrangement” by
narrowing “[t]he scope of permissible bargains between
insurers and insureds.” Id. at 844–45. Here, as in Morrison,
the “disapproval of discretionary clauses ‘dictates to the
insurance company the conditions under which it must pay
for the risk it has assumed.’” Id. at 845 (citation omitted).
“By removing the benefit of a deferential standard of review
from insurers, it is likely that the [California law] will lead to
a greater number of claims being paid. More losses will thus
be covered, increasing the benefit of risk pooling for
consumers.” Id.; see also Fontaine, 800 F.3d at 889
(concluding that “a state law prohibiting discretionary clauses
squarely satisfies this requirement”); Am. Council, 558 F.3d
at 607 (same).
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Section 10110.6(a) satisfies both of the Miller prongs.
Having determined that it is saved from ERISA preemption,
we must resolve whether the statute applies to Orzechowski’s
claim against Boeing.
B. Section 10110.6 Applies
As we have quoted above, § 10110.6 voids any “provision
that reserves discretionary authority to the insurer, or an agent
of the insurer.” Cal. Ins. Code § 10110.6(a). The statute
applies to any “policy, contract, certificate, or agreement
offered, issued, delivered, or renewed.” Id. “‘[R]enewed’
means continued in force on or after the policy’s anniversary
date.” Id. § 10110.6(b). Thus, for § 10110.6 to void the
discretionary clauses in question, “a policy, contract,
certificate, or agreement” must have been “offered, issued,
delivered, or renewed” after the statute’s effective date of
January 1, 2012. See Stephan v. Unum Life Ins. Co. of Am.,
697 F.3d 917, 927 (9th Cir. 2012) (“The law in effect at the
time of renewal of a policy governs the policy . . . .”).
Boeing argues, and the district court agreed, that
§ 10110.6 did not apply to Orzechowski’s claim because its
Master Plan was dated January 1, 2011.3 There is no dispute
that Boeing’s Policy—which is different from its Plan—had
an anniversary date of January 1, 2012, and renewed
accordingly. We think this is sufficient to invoke the statute.
The statute makes clear that it applies when the “policy”
3 Boeing states that the Plan was amended effective January 1, 2013,
but that 2013 Plan amendment did not apply to Orzechowski’s claim
because it was first denied in 2012.
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renews. When the definition of “renewed” found in
§ 10110.6(b) is inserted into section (a), the statute reads:
If a policy, contract, certificate, or agreement
offered, issued, delivered, or [continued in
force on or after the policy’s anniversary
date], . . . contains a provision that reserves
discretionary authority to the insurer . . . that
provision is void and unenforceable.
Cal. Ins. Code § 10110.6(a). A document (not just a policy,
but also the contract, certificate, or agreement) is “renewed”
if it “continue[s] in force on or after the policy’s anniversary
date.” Id. § 10110.6(b). Boeing’s Policy here “renewed”
when it continued in force beyond its anniversary date of
January 1, 2012 and, accordingly, the Master Plan similarly
“renewed” when it continued in force beyond the Policy’s
anniversary date.
Boeing argues that § 10110.6(b) must refer only to
insurance policies and not other plan documents. Thus,
claims Boeing, the discretionary clause in the Master Plan
survives and applies to Orzechowski’s claim. This is a
variation on the prior argument that ERISA’s saving clause
applies only to insurance companies, and not to insurance
provided or funded by other companies. The argument fares
no better the second time. By its terms, § 10110.6 covers not
only “policies” that provide or fund disability insurance
coverage but also “contracts, certificates, or agreements” that
“fund” disability insurance coverage. “An ERISA plan is a
contract,” Harlick v. Blue Shield of Ca., 686 F.3d 699, 708
(9th Cir. 2012), and thus the Master Plan falls under
§ 10110.6.
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IV. CONCLUSION
Because California Insurance Code § 10110.6 applies to
Boeing’s Master Plan and Summary Plan Description, the
district court should have voided the discretionary clauses and
reviewed Orzechowski’s claim de novo. On de novo review,
the district court should give appropriate consideration to
Orzechowski’s fibromyalgia and chronic fatigue syndrome
diagnoses, which were ignored by Aetna in its denial of
benefits based on file reviews. Aetna demanded that
Orzechowski produce objective evidence showing that her
disability was caused by a non-psychological condition. But
as we have previously acknowledged, fibromyalgia and
chronic fatigue syndrome are not established through
objective tests or evidence. See Salomaa v. Honda Long
Term Disability Plan, 642 F.3d 666, 678 (9th Cir. 2011)
(citing Jordan v. Northrop Grumman Corp. Welfare Benefit
Plan, 370 F.3d 869, 877 (9th Cir. 2004), overruled on other
grounds, Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955
(9th Cir. 2006) (en banc)). We remand to the district court for
review in accordance with this opinion.
REVERSED AND REMANDED.