Frequently Asked Questions

1. WHAT IS ERISA?

The Employee Retirement Income Security Act of 1974, P.L. 93-406 (“ERISA), codified at 29 U.S.C. § 1001 et seq. and in other titles, is a “comprehensive and reticulated statute.” Nachman v. Pension Benefit Guaranty Corp., 116 U.S. 359, 361 (1980).

2. WHAT IS AN ERISA PLAN?

“The terms ‘employee welfare benefit plan’ and ‘welfare plan’ mean any plan, fund, or program which was . . . established or maintained by an employer or by an employee organization . . . to the extent that such plan, fund, or program was established . . . for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 186(c) [holiday benefits, among others] of this title (other than pensions on retirement or death, and insurance to provide such pensions).

(2)(A) Except as provided in subparagraph (B) [relating to severance pay arrangements and supplemental retirement income payments], the terms ‘employee pension benefit plan’ and ‘pension plan’ mean any plan, fund, or program which was . . . established . . . by an employer or by an employee organization . . . to the extent that by its express terms or as a result of surrounding circumstances such plan, fund, or program -

(i) provides retirement income to employees, or

(ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond, regardless of the method of calculating the contributions made to the plan, the method of calculating the benefits under the plan or the method of distributing benefits from the plan.”

29 U.S.C. § 1002(1) (emphasis supplied).

3. SHOULD THE PLAN BE IN WRITING?

Every employee benefit plan should be established and maintained pursuant to a written instrument. The written instrument "shall provide for one or more named fiduciaries who jointly or severally shall have authority to control and manage the operation and administration of the plan." 29 U.S.C. § 1102(a)(1).

4. IF THE PLAN IS NOT IN WRITING, WHAT MINIMUM INDICATIONS CAN DEFINE A PLAN?

(1) A plan, fund or program, (2) established or maintained, (3) by an employer or by an employee organization, or by both, (4) for the purpose of providing medical, surgical, hospital care, sickness, accident, disability, death, unemployment or vacation benefits, apprenticeship or other training programs, day care centers, scholarship funds, pre-paid legal services or severance benefits, (5) to participants or their beneficiaries.

Donovan v. Dillingham, 688 F.2d 1367, 1371 (11th Cir. 1982) (en banc). In discussing the statutory elements, the Donovan court held that a “plan fund, or program under ERISA implies the existence of intended benefits, intended beneficiaries, a source of financing, and a procedure to apply for and collect benefits.” Id. at 1372.

An ERISA plan can be held to exist in the absence of a written plan document or compliance with other ERISA requirements. Donovan v. Dillingham, 688 F.2d at 1372. The test is whether a reasonable person could ascertain from the surrounding circumstances: (1) intended benefits, (2) intended beneficiaries, (3) a source of financing, and (4) a procedure for obtaining benefits. Id.

5. ARE THERE PLANS THAT ARE NOT GOVERNED BY ERISA?

Yes, those that fall within the Safe Harbor provision and satisfy all four of these items:

A. no contributions by employer or union;
B. participation voluntary;
C. no endorsement by employer or union; and
D. no compensation to employer or union except for reasonable compensation for payroll deduction.

29 C.F.R. § 2510.3-1(j).

6. ARE THE PLANS BY CHURCHES, GOVERNMENT ENTITIES OR WORKERS COMPENSATION GOVERNED BY ERISA?

No.

The provisions of this subchapter shall not apply to any employee benefit plan if -

(1) such plan is a governmental plan (as defined in section 1002(32) of this title);
(2) such plan is a church plan (as defined in section 1002(33) of this title) with respect to which no election has been made under section 410(d) of title 26;
(3) such plan is maintained solely for the purpose of complying with applicable workmen's compensation laws or unemployment compensation or disability insurance laws;
(4) such plan is maintained outside of the United States primarily for the benefit of persons substantially all of whom are nonresident aliens; or
(5) such plan is an excess benefit plan (as defined in section 1002(36) of this title) and is unfunded.

29 U.S.C. § 1003(b) (underlining supplied).

7. WHO ARE THE PLAN PRINCIPALS?

“The term ‘employer’ means any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan; and includes a group or association of employers acting for an employer in such capacity. ” 29 U.S.C. § 1002(5).

“The term ‘employee’ means any individual employed by an employer.” 29 U.S.C. § 1002(6).

“The term ‘participant’ means any employee or former employee of an employer, or any
member or former member of an employee organization, who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer or members of such organization, or whose beneficiaries may be eligible to receive any such benefit.” 29 U.S.C. § 1002(7).

“The term ‘beneficiary’ means a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder.” 29 U.S.C. § 1002(8).

“The term 'administrator' means (i) the person specifically designated by the terms of the instrument under which the plan is operated." 29 U.S.C. § 1002(16)(A). The statutory definition makes clear that an employer can be a plan administrator. 29 U.S.C. § 1002(16)(A)(ii). ERISA defines [plan] administrator as: “(i) the person specifically so designated by the terms of the instrument under which the plan is operated; and (ii) if an administrator is not so designated,. . .” (29 U.S.C. § 1002(16)(A)) the administrator by default would be the plan sponsor.

“The term ‘plan sponsor’ means the employer in the case of an employee benefit plan established or maintained by a single employer.” 29 U.S.C. § 1002 (16)(B)(i).

8. WHO ARE FIDUCIARIES OF THE PLAN?

A named fiduciary is [1] "a fiduciary who is named in the plan instrument, or [2] who, pursuant to a procedure specified in the plan, is identified as a fiduciary." 29 U.S.C. § 1102(a)(2).

A plan may allocate fiduciary responsibilities. A plan document may expressly provide for procedures for allocating fiduciary responsibilities (other than trustee responsibilities) among named fiduciaries. U.S.C. § 1105(c)(1)(A).

A plan document may expressly provide for procedures for named fiduciaries to designate persons other than named fiduciaries to carry out fiduciary responsibilities. 29 U.S.C. § 1105(c)(1)(B).

ERISA requires that any procedures for allocating responsibilities for the operation and administration of a plan must be described under the plan. 29 U.S.C. § 1102(b)(2).

Except as otherwise provided in subparagraph (B), a person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. Such term includes any person designated under section 1105(c)(1)(B) of this title.

29 U.S.C. § 1002 (21)(A).

9. WHAT ARE THE OBLIGATIONS OF A FIDUCIARY?

(a) Prudent man standard of care.

(1) Subject to sections 1103(c) and (d), 1342, and 1344 of this title, a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and -

(A) for the exclusive purpose of:
(i) providing benefits to participants and their beneficiaries; and
(ii) defraying reasonable expenses of administering the plan;
(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims;
(C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and
(D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter and subchapter III of this chapter.

29 U.S.C. § 1104.

10. WHAT ARE TEN OF THE MOST IMPORTANT ISSUES IN ANY ERISA CLAIM THAT A LAWYER SHOULD KNOW BEFORE YOU HIRE HIM/HER?

1. Time Limits and Deadlines:

A. Notice of Claim - per plan/policy term
B. Proof of Claim - per plan/policy term
C. Statute of Limitation - per plan/policy term

1. claim for benefits - 4 years but can be as short as 90 days
2. interference/discrimination - 2 years
3. injunction - 2 years
4. breach of fiduciary duty - 3 years (could be as long as 6 years by ERISA statute § 413)

2. Claim Process:

A. Application for Benefits- Proof of Loss
B. Deadlines
C. Obtaining Documents by Which the Plan Is Operated
D. Definition of Disability
E. Claim Record

3. Appeal Process:

A. Denial Letter
B. Obtaining a copy of your claim file
C. Contents of the appeal to be submitted

4. Exhaustion of Remedies:

exhaustion of administrative remedies before filing suit - there are few exceptions to this requirement

5. Lawsuit for Benefits:

A. Claim for Benefits
B. Jurisdiction/Venue
1. favorable/unfavorable law of circuit/division

C. Preemption

6. Standard of Review used by the federal judge that will review your case

7. Discovery

8. Remedy, if successful in lawsuit:

A. Benefits that are past due
B. Interest on past due benefits
C. Reinstatement for future benefits
D. Costs
E. Discretionary Attorney’s Fees

9. Taxability of benefits:

A. Benefits
B. Interest
C. Attorney’s Fees

10. Collateral coverages:

A. Health
B. Life
C. Waiver of Premiums

11. WHAT SHOULD BE INCLUDED IN THE APPLICATION FOR BENEFITS- PROOF OF LOSS?

a. written claim form or verbal claim - sometimes referred to as a “proof of claim”
b. employee portion of written proof of claim - biographical information, reason for disability, restrictions and limitations, and very important - date of disability
c. employer portion of written proof of claim - biographical information, job description, monthly pay and miscellaneous questions
d. physician portion of written proof of claim - period of treatment, restrictions and limitations, perhaps diagnosis and treatment records
e. other material

12. HOW DO I OBTAIN THE DOCUMENTS BY WHICH THE PLAN IS OPERATED

In most situations, you, the employee, would be provided with the summary plan description (SPD), which is a much shorter document and a much easier to read document than would be the plan document. If you need to make a claim under the employee benefit plan, you would most likely start with the summary plan description. The plan and summary plan description provide you with the description of the benefits of the plan and how to make a claim regarding same. This SPD, that should have been provided to you, most likely, would provide the information on the benefits available and how to make the claim for benefits.

The summary plan description or for that matter the plan document may refer to a particular insurance policy which may set out the benefits and/or the claim procedure.

You should also request relevant documents from the Plan - definition of relevant, 29 C.F.R. § 2560.503-1(m)(8),

a. relied on in making benefit determination;
b. submitted, considered or generated in the course of making benefit determination, regardless of whether relied on;
c. demonstrates compliance with administrative procedures in making benefit determination in accordance with plan documents; and
d. in case of group health or disability benefits, constitutes a statement of policy with concerning the denied treatment, regardless of whether relied on in making benefit determination.

29 C.F.R. § 2650.503-1(m).

13. WHAT SHOULD BE INCLUDED IN THE DENIAL LETTER?

The denial letter must provide the information required by ERISA (29 U.S.C. § 1133) and ERISA regulations (29 C.F.R. § 2560.503-1(f)) Weaver v. Phoenix Home Life Mut. Ins. Co., 990 F.2d 154 (4th Cir. 1993) (Non-compliance with §1133(1) was evidence of abuse of discretion but did not require a heightened standard of review.)

Claims Procedure provides:

(g) Manner and content of notification of benefit determination.

(1) Except as provided in paragraph (g)(2) of this section, the plan administrator shall provide a claimant with written or electronic notification of any adverse benefit determination. . . . The notification shall set forth, in a manner calculated to be understood by the claimant –

(i) The specific reason or reasons for the adverse determination;
(ii) Reference to the specific plan provisions on which the determination is based;
(iii) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary;
(iv) A description of the plan's review procedures and the time limits applicable to such procedures, including a statement of the claimant's right to bring a civil action under section 502(a) of the Act following an adverse benefit determination on review;
(v) In the case of an adverse benefit determination by a group health plan or a plan providing disability benefits,

(A) If an internal rule, guideline, protocol, or other similar criterion was relied upon in making the adverse determination, either the specific rule, guideline, protocol, or other with the specific rule, guideline, protocol, or other similar criterion; or a statement that such a rule, guideline, protocol, or other similar criterion was relied upon in making the adverse determination and that a copy of such rule, guideline, protocol, or other similar criterion will be provided free of charge upon request. . . .

29 C.F.R. § 2560.503-1 (g).

14. WHAT IS EXHAUSTION OF REMEDIES?

You must comply with all administrative procedures in the plan/policy to exhaust all of the remedies available before filing suit - there are few exceptions to this requirement.

15. WHAT IS A CLAIM FOR BENEFITS?

Plaintiff has a claim against the plan for the recovery of plan benefits owed and is brought pursuant to the ERISA civil enforcement provision which provides "A civil action may be brought . . . (1) by a participant or by a beneficiary . . . (B) to recover benefits due to him under the terms of his plan." 29 U.S.C. § 1132(a)(1)(B).

16. WHY IS THE DEFINITION OF DISABILITY IN THE PLAN/POLICY SO IMPORTANT?

a. Disability - the definition of disability determines the scope of the coverage provided by the plan

1. “own occupation” (usually first 24 months period of disability)
2. “any occupation” (after first 24 months of disability)

b. Variance in the elements of the definition of disability - actions/skills

1. cannot perform each of the material duties of regular occupation
2. unable to perform the important duties of occupation
3. cannot perform the substantial material duties of occupation

c. The additional requirement of “loss of income”

1. less than 20% loss of income - no benefit paid
2. more than 80% loss of income - total benefit paid
3. in between loss of income - proportionate benefit paid

d. The definition of “regular occupation”

1. “material and substantial duties” are defined by “regular occupation”
2. Department of Labor - Table of Occupations
3. as the insurer defines the tasks/skills

17. WHAT STANDARD OF REVIEW WILL BE USED BY THE FEDERAL COURT REVIEWING MY CLAIM?

The standard of review for an administrator's actions is de novo or abuse of discretion based on the determination of whether the administrator has the discretion to determine eligibility for benefits or to construe the terms of the plan. If the administrator does not have this discretion, the district court should apply the de novo standard of review for the law aspects of the decision by the administrator. However, the factual aspects of the decision by the administrator are reviewed for abuse of discretion. Estate of Bratton v. Nat.'l Union Fire Ins. Co. of Pittsburgh, Pa., 215 F. 3d. 516, 522 (5th Cir. 2000). Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 946, 103 L. Ed. 2d 80 (1989).

On the other hand, if the plan administrator is determined to have discretionary authority to determine eligibility for benefits or to construe the terms of the plan, in the Fifth Circuit, the review of both the administrators’ law and factual aspects of the decision is based on abuse of discretion.

Post- Glenn

The United States Supreme Court issued its opinion in MetLife v. Glenn on June 19, 2008. Metropolitan Life Ins. Co. v. Glenn, 554 U.S. _____, 128 S.Ct. 2343, 2008 U.S. Lexis 5030, 2008 WL 2444796 (2008). The Court visited the issue of conflict of interest presented in the circumstance where the administrator both evaluates and pays claims, and then discussed how that conflict of interest should be taken into account on judicial review. The Court held:

Often the entity that administers the plan, such as an employer or an insurance company, both determines whether an employee is eligible for benefits and pays benefits out of its own pocket. We here decide [1] that this dual role creates a conflict of interest; [2] that a reviewing court should consider that conflict as a factor in determining whether the plan administrator has abused its discretion in denying benefits; and [3] that the significance of the factor will depend upon the circumstances of the particular case.

Id. at *6

The Court reiterates that the conflict must be taken into account. “Trust law continues to apply a deferential standard of review to the discretionary decisionmaking [sic] of a conflicted trustee, while at the same time requiring the reviewing judge to take account of the conflict when determining whether the trustee, substantively or procedurally, has abused his discretion.” Id. at *18 (emphasis supplied). The reviewing judge must determine the lawfulness of the benefits denial by taking into account several factors, including conflict, reaching a result by weighing all together. The Court has fashioned a facts-and-circumstances reasonableness test to administrative decisions

The reviewing court must also determine the inherent or case-specific importance of the conflict factor based on the likelihood that it affected the claim decision. The Court stated, “The conflict of interest at issue here, for example, should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision. . .” Id. at *21. The Court also noted that certain conduct by the insurance company may give weight to the conflict. “This course of events was not only an important factor in its own right (because it suggested procedural unreasonableness), but also would have justified the court in giving more weight to the conflict (because MetLife's seemingly inconsistent positions were both financially advantageous).” Id. at *23.

Glenn cited with approval to Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-417, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), and Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed.2d 456 (1951) as guideposts showing how a court is to review a claim decision. Metropolitan Life Ins. Co. v. Glenn, 2008 U.S. LEXIS 5030 at *21. Both cases require a far more critical court review than what the panel ruling provided.

According to Overton Park, despite a “presumption of regularity” to which an underlying “administrative” decision is entitled, a court should nonetheless conduct a “substantial inquiry” and a “thorough, probing, in-depth review.” 401 U.S. at 415. The court is not to “substitute its judgment for that of the agency,” but is required to “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment;” the “inquiry into the facts is to be searching and careful.” Id. at 416.

The citation to Universal Camera is even more explanative. There, the Court expressly rejected the notion that deferential review begins and ends with a search for evidence supporting the reasonableness of the decision under consideration:

...Congress has left no room for doubt as to the kind of scrutiny which a Court of Appeals must give the record before the Board to satisfy itself that the Board’s order rests on adequate proof.

. . .The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is clearly the significance of the requirement in both statutes that courts consider the whole record.

. . .Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.

340 U.S. at 487-488. Universal Camera further emphasized that courts must independently exercise their judicial function even when applying a deferential standard of review:

We conclude, therefore, that the Administrative Procedure Act and the Taft-Hartley Act direct that courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions that some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals.

Id. at 490 (emphasis supplied). Although ERISA is not governed by either the APA or Taft-Hartley, the Supreme Court’s citation to Universal Camera allows directs a substitution of the term “plan administrator” for “Board” or “Labor Board.” A court cannot “abdicate the conventional judicial function” by merely accepting an administrator’s reasoning without any analysis of the reliability of the evidence relied upon by the administrator or the reasonableness of its conclusions.

18. WHAT DISCOVERY(REQUEST FOR INFORMATION FROM THE PLAN/INSURANCE COMPANY) WILL BE ALLOWED IN A LAWSUIT?

No discovery is allowed on the fact resolution of the plan’s/insurance company’s decision but there is discovery in ERISA cases.

Pre-Glenn

The sliding scale applies whenever there is an abuse of discretion review. As formulated by the Court, the test for factual determinations apparently is a "reasonable and impartial judgment." Pierre v. Conn. Gen’l Life Ins. Co., 932 F. 2d 1552, 1562 (5th Cir. 1991). An arbitrary and capricious (the Fifth Circuit's terminology used before the term abuse of discretion) standard for any administrator's decision may involve a sliding scale. The greater the conflict, the less deference to the administrator. A slight conflict only moves the scale slightly. "[T] he arbitrary and capricious standard may be a range, not a point. There may be in effect a sliding scale of judicial review of trustees' decisions-more penetrating the greater is the suspicion of partiality, less penetrating the smaller that suspicion is ...." Vega v. Nat'l Life Ins. Services, Inc., 188 F.3d 287, 296 (5th Cir. 1999) en banc, citing Wildbur v. ARCO Chemical Co., 974 F.2d 631, 638 (5th Cir. 1992).

The Fifth Circuit has instructed district courts to evaluate inferences of lack of good faith on a sliding scale. In order to demonstrate a greater suspicion of partiality, the plaintiff (and the court) would require evidence outside the administrative record in order to determine where on the sliding scale the judicial review should lie. This is based on the Court’s statement that "[t]he greater the evidence of conflict on the part of the administrator, the less deferential our abuse of discretion standard will be." Lain v. UNUM Life Ins. Co. of America, 279 F.3d at 343, citing Vega v. Nat'l Life Ins. Services, Inc., 188 F.3d at 297.

Wildbur v. ARCO Chemical Co.,974 F.2d 631, 638 (5th Cir. 1992), states "[It is] obvious that some evidence other than that contained in the administrative record may be relevant at both steps of this process of judicial review."

Post-Glenn

The Court’s opinion makes it clear that discovery is appropriate and proper regarding the existence of various areas of conflict. It is even more clear that discovery is necessary to show the “case-specific” importance of the conflict as a factor. The Court stated “The conflict of interest at issue here, for example, should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision,. . .” Metropolitan Life Ins. Co. at *21. Claimant believes discovery is appropriate to show that the areas of conflict affected the decision.

The Court certainly envisioned that a claimant would have discovery with respect to the payor/determiner conflict as well as conflicts of that type and whether those conflicts affected the benefit determination. Without such discovery, it would be difficult for a claimant to convince a court that a conflict existed or to demonstrate the importance of that conflict as a factor, if the claimant is not given an opportunity for discovery regarding those issues.

19. WHAT REMEDY WILL I RECEIVE IF I AM SUCCESSFUL IN A LAWSUIT?

A. Benefits

a. long term disability benefits:

1. past due benefits
2. reinstatement for benefits in the plan - temporary, to age 65, for life
3. other “income” which is subtracted from benefits: workers’ compensation, social security benefits, retirement, and/or other disability insurance

b. medical benefits:

1. medical benefits due
2. pre-certification of needed treatment
3. avoidance of post-treatment financial crisis

B. Costs

proper - deposition and court transcripts, filing fee, photocopying, postage

C. Discretionary Attorney’s Fees

a. pre-lawsuit - in the Fifth Circuit there are no attorney’s fees allowed for attorney work in the claim process
b. lawsuit - attorney’s fees and cost of the action are discretionary with the district court
c. what are reasonable and necessary attorney’s fees

1. discretion of the court 29 U.S.C. § 1132(g)(1)-
five factors in the Fifth Circuit:

A. degree of opposing party’s culpability
B. ability of opposing party to satisfy award of attorney’s fees
C. deterrent effect of award on other persons
D. whether party requesting fees sought to benefit all participants in the plan or to resolve a significant legal question regarding ERISA
E. relative merits of the party’s position

20. ARE THERE COLLATERAL COVERAGES THAT ARE DEPENDENT ON MY STATUS AS BEING DISABLED?

Yes, some plans allow for the continuation of coverages such as life and/or health insurance without the payment of premiums by you. You must make an application for waiver of the premiums.

21. WHAT ACTIVITIES ARE TYPICALLY PERFORMED IN THE CLAIM PROCESSING?

a. before the claim is made to the plan

1. examine claim for all the reasons used by insurance companies to deny claims; and
2. request plan document with all amendments, summary plan description, insurance policies, correspondence and other relevant documents from plan administrator and employer (must be provided within 30 days of request; discretionary penalty of up to $110.00 per day against plan administrator if not provided)

b. during claim/appeal process - accomplish the items in (a) above

1. review and dissect the denial letter to identify reasons for denial
2. determine the time for response or appeal
3. request the claim file from the claim administrator (typically the insurance company)
4. request relevant documents - definition of relevant, 29 CFR § 2560.503-1(m)(8), from the plan
5. request surveillance videos, photographs, interviews with clients and others, from the plan
6. respond with correspondence, doctor’s narrative/recorded statement, treatises, information regarding the client’s doctors and the insurance company’s doctors, case law on issues and adverse press
7. supplement the record at any time before the lawsuit (the administrative record can only include information which was submitted and available to the plan administrator for making a decision)

22. WHAT YOU SHOULD BE AWARE OF REGARDING THE HANDLING OF A LAWSUIT ON A CLAIM?

a. jurisdiction - depends on cause of action alleged

1. claim for benefits - state or federal court - Defendant will remove to federal court
2. breach of fiduciary duty - federal court only
3. interference with the right to receive benefits - federal court only
4. state common law and most state law insurance claims are preempted

b. venue - specific venue statute for ERISA
c. the issue for the court is the appropriateness of the decision that you are not entitled to benefits, e.g., not disabled, preexisting condition, not covered by plan, etc.
d. standard of district court’s review for law and fact aspects of plan’s/insurance company’s decision to deny you benefits
e. Discovery the Fifth Circuit allows

23. WHAT ARE SOME OF THE REASONS FOR DENIAL OF BENEFITS BASED ON THE FACTS OF THE CLAIM.

a. time and scope (exclusions) of coverage.
b. pre-existing condition - disability caused by, contributed to, or relating to prior medical condition.
c. not continuously disabled during elimination period and thereafter.
d. 24 months of benefits only for “mental and nervous” or “self-reported conditions”.
e. restrictions and limitations do not prevent performance of material and substantial duties of occupation.
f. 24 months change of definition of disability from “own occupation” to “any occupation”

24. WHAT ARE SOME OF THE REASONS GIVEN FOR DENIAL OF BENEFIT BASED ON THE FACTS OF THE CLAIM?

a. you do not meet the definition of disability, especially since your job allows you to sit and stand as you please.
b. restrictions and limitations were not specified.
c. there is no objective medical evidence to show your restrictions and limitations.
d. your medical condition is not severe enough to prevent you from doing your occupation.
e. if you could work before the date you claimed disability with all of the symptoms of your medical condition, you should be able to work the day after you claimed disability with the same conditions.
f. there is nothing in the medical records to show a significant change in your condition before and after the date you chose to go on disability.
g. your treating doctor did not say you were disabled.
h. your doctor’s records do not show you are disabled and/or justify the restrictions and limitations.
i. there is a letter from one of your treating physicians that he said you were doing just fine.