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In the case of Dorris v. Unum Life Insurance Company of America, No. 19-1701, __F.3d__, 2020 WL 524726 (7th Cir. Feb. 3, 2020), the Seventh Circuit took a look at the standard of review and stated, “[a]t least in this this circuit, ERISA de novo review requires no review at all, but an independent decision.” The Court then proceeded to place the burden of proof of entitlement to benefits squarely on the shoulders of the plaintiff.
In the Dorris case, the Plaintiff had been receiving disability benefits from Unum for over 12 years, with the last 10 of which were received under the “any occupation” standard. Finally, Unum terminated the Plaintiff’s benefits claiming that she was now able to return to work in her own occupation. The Plaintiff took this before the district court which determined that this decision was incorrect because the Plaintiff’s occupation required long hours and was demanding mentally, and that these duties aggravated the Plaintiff’s Lyme disease symptoms.
However, the district court then look at whether the Plaintiff was entitled to benefits under her plan’s “any occupation” standard, not the “own occupation” standard which Unum had applied. The court found that there was hardly any evidence in the record which goes to that question. The court found that the burden of proving her case was on the Plaintiff and, since she had failed to conduct discovery on the merits of her case and failed to provide any additional evidence which would go to this question, her claim failed and the court decided in favor of Unum.
The court specifically set out that the word “review” in the de novo review standard was misleading — there actually is no review, but a brand new determination in an action like this, “akin to a contact dispute.” For this reason, the court said, the parties should be allowed to introduce new evidence which was beyond the scope of the administrative record, should they so desire.
Since the Plaintiff has the burden of proof in a de novo case, gaps in the record impact the Plaintiff’s claim. However, the Plaintiff should be allowed to patch these gaps before the court makes a final decision.