United Policy Holders Article – Offsets

Q: What are offsets?

A. Offsets are provisions in your disability coverage that allow your insurer to deduct from your regular benefit other types of income you receive or are eligible to receive from other sources due to your disability. Common types of offsets include, but are not limited to, Social Security disability benefits, worker’s compensation benefits, and benefits from state disability programs like those offered in California, New York, New Jersey, Rhode Island, and Hawaii. Other common offsets include employer provided disability retirement benefits, and in some cases, income received from a third party who may have caused the injury that resulted in your disability.

Q. Where can I find offset wording in my disability policy?

A. Usually the section of the policy (sometimes the policy will be labeled as either a “long term disability Plan” or a “Summary Plan Description’) that explains your benefit amount will have language indicating that the insurer is allowed to deduct “other benefits” or “other income benefits.” The policy will then have a separate section shortly thereafter explaining what types of benefits constitute “other benefits,” and how the insurer will offset them from your regular benefit.

Q. I got my disability policy through my employer but I don’t have my master policy–just an explanation of benefits. Is that enough to tell me what offsets are in my policy?

A. Probably. A federal law called the Employee Retirement Income Security Act, or “ERISA,” governs employee benefits, including disability benefits. This law has extensive rules and regulations about what employers must do when they offer benefits to their employees, and how benefit claims should be treated. ERISA requires employers to give to their employees a “Summary Plan Description” which explains, in plain language that can be understood by the average plan participant, what the participant’s rights and obligations are under the plan. This Summary Plan Description should include provisions regarding what kinds of offsets the insurance company is allowed to apply. If your Summary Plan Description does not include this information, you are still entitled to it, and you should ask your employer for it in writing.

Q. Does ERISA say what kinds of offsets insurers can take and which they can’t?

A. No. ERISA is a regulatory law that is primarily concerned with explaining what employers and insurance companies must do if they offer benefits to employees. It does not tell employers and insurers what kinds of benefits they have to offer, or how those benefits should be calculated.

However, some States, such as California, have insurance regulations that may govern what offsets insurance companies may take from your benefits, and when they can take them. For instance, California does not permit insurance companies to offset Social Security benefits that you may be entitled to receive, until you have actually been awarded the benefits. There are exceptions to this rule if you are not cooperating in seeking the benefits to which you may be entitled.

Q. Why are insurance companies allowed to offset my disability benefits?

A. The short answer is because no law prohibits them from doing so. The longer answer is that if you were allowed to keep the full amount of all of the various disability benefits to which you might be entitled, it would be possible for you to earn more money on disability than you would by working. Disability benefit programs, both public and private, are designed to avoid this result. In addition, insurance companies are able to sell plans to your employer that suggest that they will be paying 60% or 70% of your pre-disability income, which is an attractive selling benefit to employers. However, the insurance companies have actuarial studies that have shown them that, in fact, if they are paying a claim, they end up paying substantially less than their potential financial obligation, as the offset provision of the policy allows the insurance companies to shift the burden to some other party.

Q. Is there anything I can do to get rid of offsets in my policy?

A. Generally no. If you are receiving a disability benefit through your employer, the terms of your disability benefit plan have already been negotiated between your employer and the insurance company, and there is nothing you can do to change it. If you are receiving benefits through a private insurance policy, you can try to negotiate with your insurer to remove offset provisions, but they are unlikely to be receptive to your requests.

Q. What kinds of offsets can insurance companies take?

A. As noted above, the most common types of offsets are Social Security disability benefits, worker’s compensation benefits, and state disability program benefits. However, there are many other kinds of benefits that can be offset as well. Among these are retirement or pension benefits (including disability pension benefits), and other group and individual insurance benefits. Every policy is different, so you should read yours carefully to see which offsets apply to you and how they apply.

Q. What if I’m still working on a part-time basis? Are insurance companies allowed to offset my benefit?

A. Yes; this is usually called “partial disability” or “residual disability.” If you are able to work in a part-time capacity, insurers are allowed to offset your disability benefit for this reason. Each insurance policy has a different method of calculating the amount of this offset. Usually the calculation is based on how much you are working and/or what your earnings are, so read your policy carefully to see how your benefit should be calculated.

Q. Can offsets be applied to payments that family members receive or are entitled to?

A. Usually no. Most policies limit offsets only to those benefits you personally are entitled to receive for your disability. One important exception is family Social Security benefits, or “dependent benefits.” These are benefits to which your dependent children are entitled when you are receiving Social Security disability benefits. Very often policies will contain an offset for both types of Social Security benefits – your individual disability benefit as well as dependent benefits. This is permitted. Not all policies offset for dependent benefits, however, so read your policy carefully.

However, even reading your policy carefully may not answer your question. For example, one major insurance carrier has language in its policies offsetting other benefits received for “loss of time” at work. While primary Social Security benefits paid to a disabled adult are for “loss of time,” the benefits paid to their eligible dependants are arguably NOT for “loss of time.” A Federal Court has ruled that when such language is in a policy, dependant Social Security Benefits may not be offset. You may need an experienced ERISA attorney to assist you in convincing the insurance company that the other income at issue may not be offset against your long-term disability benefit.

Q. Worker’s compensation benefits are designed to compensate injured workers for several different things: replacement of wages, loss of use, and medical treatment, among other things. If I receive worker’s compensation benefits, can the insurer offset all of my worker’s compensation benefits, even if they are not attributed specifically to lost wages?

A. Sometimes. This issue is currently in a gray area in the law. There is a strong argument that insurance companies should not be allowed to offset the part of your worker’s compensation benefit that is not attributable to wage replacement. Under this argument, it would be permissible for an insurer to offset your “temporary total disability” benefits, because these benefits are typically based on your prior salary. After you have become “permanent and stationary,” the insurer would not be allowed to offset the full amount of your “permanent total disability” benefits, because these benefits include compensation for multiple injuries, as described above.

California has recently enacted an insurance regulation that reflects this rationale [10 C.C.R. § 2232.45.4.]; it allows group disability insurers to offset temporary total disability benefits, but prohibits them from offsetting permanent total disability benefits. Again, the language of your policy is important. Some policies only allow offsets for benefits based on “loss of time,” while others are more broadly worded. This can be a confusing issue, so you should consult with your worker’s compensation attorney to ensure that your benefits are properly attributed to avoid being offset. If your worker’s compensation attorney is not fully equipped to protect your rights, you should insist that he or she consult with an ERISA attorney.

Q. I’m disabled because of an accident that someone else caused. I’m suing the responsible person. Can the insurance company offset my benefit by the payments I receive from the person who caused my disability?

A. Yes, to the extent the policy allows for such an offset. However, even if the policy language permits such an offset, that doesn’t automatically mean that your full recovery from the third party may be offset. The legal terms for this situation are referred to as either “subrogation,” or a “right of reimbursement.” They involve the “make whole” doctrine, which is a legal rule that says that if you are entitled to benefits from different sources for your injury – here, the person who caused the accident and the insurance company – the insurance company can only collect its offset, that is, enforce its “reimbursement rights,” if you have been “made whole” for your injury, or, in other words, you have been fully compensated for your injury.

If the person who caused your injury has limited assets, or no insurance, or insufficient insurance, you may not be fully compensated for your injuries. Even if you are fully compensated, it is likely that you will have hired an attorney to represent you in your lawsuit against the person who caused your injury. The attorney’s fee itself will then prevent you from being made whole. Some policies will claim a right to reimbursement of the full amount paid, even if your attorney received a third of the payment!

If your claim is governed by ERISA, there is currently a dispute in the law as to whether the “make whole” doctrine applies to your claim. In some states (such as California) the courts will apply the doctrine, but in others, they will not. If you are in this situation, you should consult with an attorney who specializes in ERISA law to determine whether the “make whole” doctrine applies to your claim, so you can limit the insurer’s rights.

Q. What happens if the offset amount is larger than my benefit amount?

A. Occasionally people are receiving benefits from several different sources, and the amount they are receiving from the other sources exceeds the benefit amount in their policy. For people in this situation, most policies have a minimum monthly benefit that is payable regardless of the total offset amount. Each policy calculates this benefit differently. Some policies have a set amount, such as $100; some set the amount as a percentage of your regular benefit; and some have a combination of the two. Some policies, however, do not have a minimum monthly benefit at all — insurers are not required to include one in their policies. Again, read your policy carefully.

Q. What if my other benefits go up? Can the insurance company increase the amount of its offset to keep pace with the increase in my other benefits?

A. Social Security disability benefits are the primary example here, as they adjust every year to compensate for the effect of inflation on fixed incomes. Some states, such as California, have laws that prevent insurance companies from reducing your benefit if your Social Security disability benefit goes up. [Cal. Ins. Code § 10127.1] Even if there is no law prohibiting an insurer from reducing your benefit, insurance policies will often contain a provision stating that the insurer will not do so. As always, read your policy carefully to see if the insurer can reduce your benefit if your other benefits go up.

Q. Can an insurance company estimate other income benefits to which I might be entitled and offset those amounts from my regular benefit, even though I haven’t received them yet?

A. Sometimes. Insurance policies often purport to give insurers the right to make these kinds of estimates, especially with regard to Social Security disability benefits, which are usually easy to calculate. Sometimes insurers will give claimants a choice. An insurer will ask a claimant if the claimant wants the company to estimate the other benefit and apply the offset now, or whether the claimant wants to wait until he or she receives the other benefit and pay the insurer back.

Some states, however, prohibit certain kinds of estimates. For example, in California, group disability insurers are not allowed to estimate retirement benefits [10 C.C.R. § 2232.45.2], or worker’s compensation temporary total disability benefits [10 C.C.R. § 2232.45.3], and therefore may not offset those kinds of benefits until they are actually received by the claimant. If you have a question regarding whether your insurer is allowed to estimate other benefits you haven’t received yet, and offset them from your regular benefit, you should contact an attorney.

Q. If I think my insurance company is calculating my offsets incorrectly, what can I do about it?

A. If the insurance company approves your claim for benefits, it will often explain in its letter how your benefit has been calculated. If the insurer does not do so, or if you are concerned that your benefit has been miscalculated, you should request a detailed calculation in writing from the insurer. If your benefits are governed by ERISA, you have the right to question the insurance company’s calculation, and insist they reconsider either their right to offset other income, or to reconsider their calculations.

If the reconsideration results in what you believe to be an incorrect determination, you have the right to bring a lawsuit in federal court. To maximize your chances of succeeding, you should contact an attorney who specializes in ERISA law before going through the ERISA reconsideration process. ERISA imposes strict evidentiary limits, so if you do not present your best evidence and arguments during the appeals process, you may be prevented from doing so later when you get to court. As a result, it is important to obtain legal advice from an attorney experienced in disability policies and, if applicable, ERISA, as early in the process as possible.

Q: Are there offsets in individual, non-ERISA disability policies?

A: Very rarely for “other income.” Individual policies often have residual or partial disability provisions that offset earned income.

For example, let’s say someone is making $100,000 with a 60% benefit. After having been on total disability, they return to work half time, earning $50,000. During the first year they will only offset the earned income to the extent it results in a total benefit plus earned income that exceeds pre-disability income. $60K + $50K = $110K, so they would offset $10K during the first year.

After that, typically they will figure out your percentage loss of income, and pay you that percentage of your benefit. In the above case, the loss of earned income is 50%, so they pay 50% of the $60,000 benefit, or $30,000.00. The insured is now getting a total of $80K for working only half time, but the carrier is getting to reduce its obligation to the insured by 50%. It is kind of a win win. Both sides get something out of it.

Some policies, however, take a dollar for dollar offset, but that is rare as it gives the insured NO incentive to try and return to work, so they don’t try. There are dozens of variations of offsets for part-time work.

Q: Is group policy offsetting permissible for private disability income benefits?

A: Very few insurers try it, and there is a California insurance code that prohibits coordinating benefits between group and individual HEALTH benefits. It has been used to argue against coordination (which is basically offsetting by another name) of group and individual disability.

 

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Our law firm fights on behalf of individuals to obtain their long-term disability benefits.
If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000. We are based in Nashville, Tennessee; however, we represent clients in many states (Tennessee, Kentucky, Georgia, Alabama, Texas, Mississippi, Arkansas, North Carolina, South Carolina, Florida, Michigan, Ohio, Missouri, Louisiana, Virginia, West Virginia, New York, Indiana, Massachusetts, Washington DC (just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com.

 

 

An Important Decision Regarding ERISA Review Standard

U.S. Supreme Court

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989)

No. 87-1054

Argued November 30, 1988

Decided February 21, 1989

489 U.S. 101

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Syllabus

Petitioner Firestone Tire & Rubber Co. (Firestone) maintained, and was the plan administrator and fiduciary of, a termination pay plan and two other unfunded employee benefit plans governed by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. After Firestone sold its Plastics Division to Occidental Petroleum Co. (Occidental), respondents, Plastics Division employees who were rehired by Occidental, sought severance benefits under the termination pay plan, but Firestone denied their requests on the ground that there had not been a “reduction in workforce” that would authorize benefits under the plan’s terms. Several respondents also sought information about their benefits under all three plans pursuant to § 1024(b)(4)’s disclosure requirements, but Firestone denied those requests on the ground that respondents were no longer plan “participants” entitled to information under ERISA. Respondents then brought suit for severance benefits under § 1132(a)(1)(B) and for damages under §§ 1132(a)(1)(A) and (c)(1)(B) based on Firestone’s breach of its statutory disclosure obligation. The Federal District Court granted summary judgment for Firestone, holding that the company had satisfied its fiduciary duty as to the benefits requests because its decision not to pay was not arbitrary or capricious, and that it had no disclosure obligation to respondents because they were not plan “participants” within the meaning of § 1002(7) at the time they requested the information. The Court of Appeals reversed and remanded, holding that benefits denials should be subject to de novo judicial review, rather than review under the arbitrary and capricious standard, where the employer is itself the administrator and fiduciary of an unfunded plan, since deference is unwarranted in that situation, given the lack of assurance of impartiality on the employer’s part. The Court of Appeals also held that the right to disclosure of plan information extends both to people who are entitled to plan benefits and to those who claim to be, but are not, so entitled.

Held:

1. De novo review is the appropriate standard for reviewing Firestone’s denial of benefits to respondents. Pp. 489 U. S. 108-115.

Page 489 U. S. 102

(a) The arbitrary and capricious standard — which was developed under the Labor Management Relations Act, 1947 (LMRA) and adopted by some federal courts for § 1132(a)(1)(B) actions in light of ERISA’s failure to provide an appropriate standard of review for that section — should not be imported into ERISA on a wholesale basis. The raison d’etre for the LMRA standard — the need for a jurisdictional basis in benefits denial suits against joint labor-management pension plan trustees whose decisions are not expressly made reviewable by the LMRA — is not present in ERISA, which explicitly authorizes suits against fiduciaries and plan administrators to remedy statutory violations, including breaches of fiduciary duty and lack of compliance with plans. Without this jurisdictional analogy, LMRA principles offer no support for the adoption of the arbitrary and capricious standard insofar as § 1132 (a)(1)(B) is concerned. Pp. 489 U. S. 108-110.

(b) Principles of the law of trusts — which must guide the present determination under ERISA’s language and legislative history and this Court’s decisions interpreting the statute — establish that a denial of benefits challenged under § 1132(a)(1)(B) must be reviewed under a de novo standard unless the benefit plan expressly gives the plan administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the plan’s terms, in which cases a deferential standard of review is appropriate. The latter exception cannot aid Firestone, since there is no evidence that, under the termination pay plan, the administrator has the power to construe uncertain plan terms or that eligibility determinations are to be given deference. Firestone’s argument that plan interpretation is inherently discretionary is belied by other settled trust law principles whereby courts construe trust agreements without deferring to either party’s interpretation. Moreover, ERISA provisions that define a fiduciary as one who “exercises any discretionary authority,” give him control over the plan’s operation and administration, and require that he provide a “full and fair review” of claim denials cannot be interpreted to empower him to exercise all his authority in a discretionary manner. Adopting Firestone’s interpretation would afford employees and their beneficiaries less protection than they received under pre-ERISA cases, which applied a de novo standard in interpreting plans, a result that Congress could not have intended in light of ERISA’s stated purpose of “promot[ing] the interest of employees and their beneficiaries.” The fact that, after ERISA’s passage, Congress failed to act upon a bill to amend § 1132 to provide de novo review of benefits denial decisions does not indicate congressional approval of the arbitrary and capricious standard that had by then been adopted by most courts, since the bill’s demise may have resulted from events having nothing to do with Congress’ views on the relative merits of the two

Page 489 U. S. 103

standards, and since the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one. Firestone’s assertion that the de novo standard would impose higher administrative and litigation costs on plans, and thereby discourage employers from creating plans in contravention of ERISA’s spirit, is likewise unpersuasive, since there is nothing to foreclose parties from agreeing upon a narrower standard of review, and since the threat of increased litigation is not sufficient to outweigh the reasons for a de novo standard. Those reasons have nothing to do with the concern for impartiality that guided the Court of Appeals, and the de novo standard applies regardless of whether the plan at issue is funded or unfunded and whether the administrator or fiduciary is operating under a conflict of interest. If a plan gives discretion to such an official, however, the conflict must be weighed as a factor in determining whether there is an abuse of discretion. Pp. 489 U. S. 110-115.

2. A “participant” entitled to disclosure under § 1024(b)(4) and to damages for failure to disclose under § 1132(c)(1)(B) does not include a person who merely claims to be, but is not, entitled to a plan benefit. The Court of Appeals’ interpretation to the contrary strays far from the statutory language, which does not say that all “claimants” are entitled to disclosure; begs the question of who is a “participant”; and renders the § 1002(7) definition of “participant” superfluous. Rather, that definition of a “participant” as “any employee or former employee . . . who is or may become eligible” for benefits must be naturally read to mean either an employee in, or reasonably expected to be in, currently covered employment, or a former employee who has a reasonable expectation of returning to covered employment or a colorable claim to vested benefits. Moreover, a claimant must have a colorable claim that (1) he will prevail in a suit for benefits, or that (2) eligibility requirements will be fulfilled in the future in order to establish that he “may be eligible.” This view attributes conventional meanings to the statutory language, since the “may become eligible” phrase clearly encompasses all employees in covered employment and former employees with a colorable claim to vested benefits, but simply does not apply to a former employee who has neither a reasonable expectation of returning to covered employment nor a colorable claim to vested benefits. Congress’ purpose in enacting the ERISA disclosure provisions — ensuring that the individual participant knows exactly where he stands — will not be thwarted by this natural reading of “participant,” since a rational plan administrator or fiduciary faced with the possibility of $100-a-day penalties under § 1132(c)(1)(B) for failure to disclose would likely opt to provide a claimant with the requested information if there were any doubt that he was a participant, especially since the claimant could be required to pay the reasonable

Page 489 U. S. 104

costs of producing the information under § 1024(b)(4) and Department of Labor regulations. Since the Court of Appeals did not attempt to determine whether respondents were “participants” with respect to the plans about which they sought information, it must do so on remand. Pp. 489 U. S. 115-118.

828 F.2d 134, affirmed in part, reversed in part, and remanded.

O’CONNOR, J., delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Part III, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, STEVENS, O’CONNOR, and KENNEDY, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 489 U. S. 119.

JUSTICE O’CONNOR delivered the opinion of the Court.

This case presents two questions concerning the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat.

Page 489 U. S. 105

829, as amended, 29 U.S.C. § 1001 et seq. First, we address the appropriate standard of judicial review of benefit determinations by fiduciaries or plan administrators under ERISA. Second, we determine which persons are “participants” entitled to obtain information about benefit plans covered by ERISA.

I

Late in 1980, petitioner Firestone Tire and Rubber Company (Firestone) sold, as going concerns, the five plants composing its Plastics Division to Occidental Petroleum Company (Occidental). Most of the approximately 500 salaried employees at the five plants were rehired by Occidental and continued in their same positions without interruption and at the same rates of pay. At the time of the sale, Firestone maintained three pension and welfare benefit plans for its employees: a termination pay plan, a retirement plan, and a stock purchase plan. Firestone was the sole source of funding for the plans, and had not established separate trust funds out of which to pay the benefits from the plans. All three of the plans were either “employee welfare benefit plans” or “employee pension benefit plans” governed (albeit in different ways) by ERISA. By operation of law, Firestone itself was the administrator, 29 U.S.C. § 1002(16)(A)(ii), and fiduciary, § 1002(21)(A), of each of these “unfunded” plans. At the time of the sale of its Plastics Division, Firestone was not aware that the termination pay plan was governed by ERISA, and therefore had not set up a claims procedure, § 1133, nor complied with ERISA’s reporting and disclosure obligations, §§ 1021-1031, with respect to that plan.

Respondents, six Firestone employees who were rehired by Occidental, sought severance benefits from Firestone under the termination pay plan. In relevant part, that plan provides as follows:

“If your service is discontinued prior to the time you are eligible for pension benefits, you will be given termination pay if released because of a reduction in workforce

Page 489 U. S. 106

or if you become physically or mentally unable to perform your job.”

“The amount of termination pay you will receive will depend on your period of credited company service.”

Several of the respondents also sought information from Firestone regarding their benefits under all three of the plans pursuant to certain ERISA disclosure provisions. See §§ 1024(b)(4), 1025(a). Firestone denied respondents severance benefits on the ground that the sale of the Plastics Division to Occidental did not constitute a “reduction in workforce” within the meaning of the termination pay plan. In addition, Firestone denied the requests for information concerning benefits under the three plans. Firestone concluded that respondents were not entitled to the information because they were no longer “participants” in the plans.

Respondents then filed a class action on behalf of “former, salaried, nonunion employees who worked in the five plants that comprised the Plastics Division of Firestone.” Complaint � 9, App. 94. The action was based on § 1132(a)(1), which provides that a

“civil action may be brought . . . by a participant or beneficiary [of a covered plan] . . . (A) for the relief provided for in [§ 1132(c)], [and] (B) to recover benefits due to him under the terms of his plan.”

In Count I of their complaint, respondents alleged that they were entitled to severance benefits because Firestone’s sale of the Plastics Division to Occidental constituted a “reduction in workforce” within the meaning of the termination pay plan. Complaint �� 23-44, App. 98-104. In Count VII, respondents alleged that they were entitled to damages under § 1132(c) because Firestone had breached its reporting obligations under § 1025(a). Complaint �� 87-94, App. 104-106.

The District Court granted Firestone’s motion for summary judgment. 640 F.Supp. 519 (ED Pa.1986). With respect to Count I, the District Court held that Firestone had satisfied its fiduciary duty under ERISA because its decision not to pay severance benefits to respondents under the termination

Page 489 U. S. 107

pay plan was not arbitrary or capricious. Id. at 521-526. With respect to Count VII, the District Court held that, although § 1024(b)(4) imposes a duty on a plan administrator to respond to written requests for information about the plan, that duty extends only to requests by plan participants and beneficiaries. Under ERISA. a plan participant is

“any employee or former employee . . . who is or may become eligible to receive a benefit of any type from an employee benefit plan.”

§ 1002(7). A beneficiary is

“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.”

§ 1002(8). The District Court concluded that respondents were not entitled to damages under § 1132(c) because they were not plan “participants” or “beneficiaries” at the time they requested information from Firestone. 640 F.Supp. at 534.

The Court of Appeals reversed the District Court’s grant of summary judgment on Counts I and VII. 828 F.2d 134 (CA3 1987). With respect to Count I, the Court of Appeals acknowledged that most federal courts have reviewed the denial of benefits by ERISA fiduciaries and administrators under the arbitrary and capricious standard. Id. at 138 (citing cases). It noted, however, that the arbitrary and capricious standard had been softened in cases where fiduciaries and administrators had some bias or adverse interest. Id. at 138-140. See, e.g., Jung v. FMC Corp., 755 F.2d 708, 711-712 (CA9 1985) (where “the employer’s denial of benefits to a class avoids a very considerable outlay [by the employer], the reviewing court should consider that fact in applying the arbitrary and capricious standard of review,” and “[l]ess deference should be given to the trustee’s decision”). The Court of Appeals held that, where an employer is itself the fiduciary and administrator of an unfunded benefit plan, its decision to deny benefits should be subject to de novo judicial review. It reasoned that, in such situations, deference is unwarranted, given the lack of assurance of impartiality on

Page 489 U. S. 108

the part of the employer. 828 F.2d at 137-145. With respect to Count VII, the Court of Appeals held that the right to request and receive information about an employee benefit plan

“most sensibly extend[s] both to people who are in fact entitled to a benefit under the plan and to those who claim to be, but in fact are not.”

Id. at 153. Because the District Court had applied different legal standards in granting summary judgment in favor of Firestone on Counts I and VII, the Court of Appeals remanded the case for further proceedings consistent with its opinion.

We granted certiorari, 485 U.S. 986 (1988), to resolve the conflicts among the Courts of Appeals as to the appropriate standard of review in actions under § 1132(a)(1)(B) and the interpretation of the term “participant” in § 1002(7). We now affirm in part, reverse in part, and remand the case for further proceedings.

II

ERISA provides “a panoply of remedial devices” for participants and beneficiaries of benefit plans. Massachusetts Mutual Life Ins. Co. v. Russell, 473 U. S. 134, 473 U. S. 146 (1985). Respondents’ action asserting that they were entitled to benefits because the sale of Firestone’s Plastics Division constituted a “reduction in workforce” within the meaning of the termination pay plan was based on the authority of § 1132(a)(1)(B). That provision allows a suit to recover benefits due under the plan, to enforce rights under the terms of the plan, and to obtain a declaratory judgment of future entitlement to benefits under the provisions of the plan contract. The discussion which follows is limited to the appropriate standard of review in § 1132(a)(1)(B) actions challenging denials of benefits based on plan interpretations. We express no view as to the appropriate standard of review for actions under other remedial provisions of ERISA.

A

Although it is a “comprehensive and reticulated statute,” Nachman Corp. v. Pension Benefit Guaranty Corp., 446

Page 489 U. S. 109

U.S. 359, 446 U. S. 361 (1980), ERISA does not set out the appropriate standard of review for actions under § 1132(a)(1)(B) challenging benefit eligibility determinations. To fill this gap, federal courts have adopted the arbitrary and capricious standard developed under 61 Stat. 157, 29 U.S.C. § 186(c), a provision of the Labor Management Relations Act, 1947 (LMRA). See, e.g., Struble v. New Jersey Brewery Employees’ Welfare Trust Fund, 732 F.2d 325, 333 (CA3 1984); Bayles v. Central States, Southeast and Southwest Areas Pension Fund, 602 F.2d 97, 99-100, and n. 3 (CA5 1979). In light of Congress’ general intent to incorporate much of LMRA fiduciary law into ERISA, see NLRB v. Amax Coal Co., 453 U. S. 322, 453 U. S. 32 (1981), and because ERISA, like the LMRA, imposes a duty of loyalty on fiduciaries and plan administrators, Firestone argues that the LMRA arbitrary and capricious standard should apply to ERISA actions. See Brief for Petitioners 13-14. A comparison of the LMRA and ERISA, however, shows that the wholesale importation of the arbitrary and capricious standard into ERISA is unwarranted.

In relevant part, 29 U.S.C. § 186(c) authorizes unions and employers to set up pension plans jointly and provides that contributions to such plans be made “for the sole and exclusive benefit of the employees . . . and their families and dependents.” The LMRA does not provide for judicial review of the decisions of LMRA trustees. Federal courts adopted the arbitrary and capricious standard both as a standard of review and, more importantly, as a means of asserting jurisdiction over suits under § 186(c) by beneficiaries of LMRA plans who were denied benefits by trustees. See Van Boxel v. Journal Co. Employees’ Pension Trust, 836 F.2d 1048, 1052 (CA7 1987) (“[W]hen a plan provision as interpreted had the effect of denying an application for benefits unreasonably, or as it came to be said, arbitrarily and capriciously, courts would hold that the plan as structured’ was not for the sole and exclusive benefit of the employees, so that the denial

Page 489 U. S. 110

of benefits violated [§ 186(c)]).” See also Comment, The Arbitrary and Capricious Standard Under ERISA: Its Origins and Application, 23 Duquesne L.Rev. 1033, 1037-1039 (1985). Unlike the LMRA, ERISA explicitly authorizes suits against fiduciaries and plan administrators to remedy statutory violations, including breaches of fiduciary duty and lack of compliance with benefit plans. See 29 U.S.C. §§ 1132(a), 1132(f). See generally Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 481 U. S. 52-57 (1987) (describing scope of § 1132(a)). Thus, the raison d’etre for the LMRA arbitrary and capricious standard — the need for a jurisdictional basis in suits against trustees — is not present in ERISA. See Note, Judicial Review of Fiduciary Claim Denials Under ERISA: An Alternative to the Arbitrary and Capricious Test, 71 Cornell L.Rev. 986, 994, n. 40 (1986). Without this jurisdictional analogy, LMRA principles offer no support for the adoption of the arbitrary and capricious standard insofar as § 1132(a)(1)(B) is concerned.

B

ERISA abounds with the language and terminology of trust law. See, e.g., 29 U.S.C. §§ 1002(7) (“participant”), 1002(8) (“beneficiary”), 1002(21)(A) (“fiduciary”), 1103(a) (“trustee”), 1104 (“fiduciary duties”). ERISA’s legislative history confirms that the Act’s fiduciary responsibility provisions, 29 U.S.C. §§ 1101-1114, “codif[y] and mak[e] applicable to [ERISA] fiduciaries certain principles developed in the evolution of the law of trusts.” H.R.Rep. No. 93-533, p. 11 (1973). Given this language and history, we have held that courts are to develop a “federal common law of rights and obligations under ERISA-regulated plans.” Pilot Life Ins. Co. v. Dedeaux, supra, at 481 U. S. 56. See also Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U. S. 1, 463 U. S. 24, n. 26 (1983) (“[A] body of Federal substantive law will be developed by the courts to deal with issues involving rights and obligations under private welfare and pension plans'”) (quoting 129 Cong.Rec. 29942 (1974) (remarks of Sen. Javits)).

Page 489 U. S. 111

In determining the appropriate standard of review for actions under § 1132(a)(1)(B), we are guided by principles of trust law. Central States, Southeast and Southwest Areas Pension Fund v. Central Transport, Inc., 472 U. S. 559, 472 U. S. 570 (1985).

Trust principles make a deferential standard of review appropriate when a trustee exercises discretionary powers. See Restatement (Second) of Trusts § 187 (1959) (“Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the trustee of his discretion”). See also G. Bogert & G. Bogert, Law of Trusts and Trustees § 560, pp.193-208 (2d. rev. ed.1980). A trustee may be given power to construe disputed or doubtful terms, and in such circumstances the trustee’s interpretation will not be disturbed if reasonable. Id. § 559, at 169-171. Whether “the exercise of a power is permissive or mandatory depends upon the terms of the trust.” 3 W. Fratcher, Scott on Trusts § 187, p. 14 (4th ed.1988). Hence, over a century ago we remarked that

“[w]hen trustees are in existence, and capable of acting, a court of equity will not interfere to control them in the exercise of a discretion vested in them by the instrument under which they act.”

Nichols v. Eaton, 91 U. S. 716, 91 U. S. 724-725 (1875) (emphasis added). See also Central States, Southeast and Southwest Areas Pension Fund v. Central Transport, Inc., supra, at 568 (“The trustees’ determination that the trust documents authorize their access to records here in dispute has significant weight, for the trust agreement explicitly provides that any construction [of the agreement’s provisions] adopted by the Trustees in good faith shall be binding upon the Union, Employees, and Employers'”). Firestone can seek no shelter in these principles of trust law, however, for there is no evidence that under Firestone’s termination pay plan the administrator has the power to construe uncertain terms or that eligibility determinations are to be given deference. See Brief for Respondents

Page 489 U. S. 112

24-25; Reply Brief for Petitioners 7, n. 2; Brief for United States as Amicus Curiae 14-15, n. 11.

Finding no support in the language of its termination pay plan for the arbitrary and capricious standard, Firestone argues that, as a matter of trust law, the interpretation of the terms of a plan is an inherently discretionary function. But other settled principles of trust law, which point to de novo review of benefit eligibility determinations based on plan interpretations, belie this contention. As they do with contractual provisions, courts construe terms in trust agreements without deferring to either party’s interpretation.

“The extent of the duties and powers of a trustee is determined by the rules of law that are applicable to the situation, and not the rules that the trustee or his attorney believes to be applicable, and by the terms of the trust as the court may interpret them, and not as they may be interpreted by the trustee himself or by his attorney.”

3 W. Fratcher, Scott on Trusts § 201, at 221 (emphasis added). A trustee who is in doubt as to the interpretation of the instrument can protect himself by obtaining instructions from the court. Bogert & Bogert supra, § 559, at 162-168; Restatement (Second) of Trusts § 201, Comment b (1959). See also United States v. Mason, 412 U. S. 391, 412 U. S. 399 (1973). The terms of trusts created by written instruments are

“determined by the provisions of the instrument as interpreted in light of all the circumstances and such other evidence of the intention of the settlor with respect to the trust as is not inadmissible.”

Restatement (Second) of Trusts § 4, Comment d (1959).

The trust law de novo standard of review is consistent with the judicial interpretation of employee benefit plans prior to the enactment of ERISA. Actions challenging an employer’s denial of benefits before the enactment of ERISA were governed by principles of contract law. If the plan did not give the employer or administrator discretionary or final authority to construe uncertain terms, the court reviewed the employee’s claim as it would have any other contract claim —

Page 489 U. S. 113

by looking to the terms of the plan and other manifestations of the parties’ intent. See, e.g., Conner v. Phoenix Steel Corp., 249 A.2d 866 (Del.1969); Atlantic Steel Co. v. Kitchens, 228 Ga. 708, 187 S.E.2d 824 (1972); Sigman v. Rudolph Wurlitzer Co., 57 Ohio App. 4, 11 N.E.2d 878 (1937).

Despite these principles of trust law pointing to a de novo standard of review fOr claims like respondents’, Firestone would have us read ERISA to require the application of the arbitrary and capricious standard to such claims. ERISA defines a fiduciary as one who

“exercises any discretionary authority or discretionary control respecting management of [a] plan or exercises any authority or control respecting management or disposition of its assets.”

29 U.S.C. § 1002(21)(A)(i). A fiduciary has “authority to control and manage the operation and administration of the plan,” § 1102(a)(1), and must provide a “full and fair review” of claim denials, § 1133(2). From these provisions, Firestone concludes that an ERISA plan administrator, fiduciary, or trustee is empowered to exercise all his authority in a discretionary manner subject only to review for arbitrariness and capriciousness. But the provisions relied upon so heavily by Firestone do not characterize a fiduciary as one who exercises entirely discretionary authority or control. Rather, one is a fiduciary to the extent he exercises any discretionary authority or control. Cf. United Mine Workers of America Health and Retirement Funds v. Robinson, 455 U. S. 562, 455 U. S. 573-574 (1982) (common law of trusts did not alter nondiscretionary obligation of trustees to enforce eligibility requirements as required by LMRA trust agreement).

ERISA was enacted “to promote the interests of employees and their beneficiaries in employee benefit plans,” Shaw v. Delta Airlines, Inc., 463 U. S. 85, 463 U. S. 90 (1983), and “to protect contractually defined benefits,” Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. at 473 U. S. 148. See generally 29 U.S.C. § 1001 (setting forth congressional findings and declarations of policy regarding ERISA). Adopting Firestone’s

Page 489 U. S. 114

reading of ERISA would require us to impose a standard of review that would afford less protection to employees and their beneficiaries than they enjoyed before ERISA was enacted. Nevertheless, Firestone maintains that congressional action after the passage of ERISA indicates that Congress intended ERISA claims to be reviewed under the arbitrary and capricious standard. At a time when most federal courts had adopted the arbitrary and capricious standard of review, a bill was introduced in Congress to amend § 1132 by providing de novo review of decisions denying benefits. See H.R. 6226, 97th Cong., 2d Sess. (1982), reprinted in Pension Legislation: Hearings on H.R. 1614 et al. before the Subcommittee on Labor-Management Relations of the House Committee on Education and Labor, 97th Cong., 2d Sess., 60 (1983). Because the bill was never enacted, Firestone asserts that we should conclude that Congress was satisfied with the arbitrary and capricious standard. See Brief for Petitioners 19-20. We do not think that this bit of legislative inaction carries the day for Firestone. Though “instructive,” failure to act on the proposed bill is not conclusive of Congress’ views on the appropriate standard of review. Bowsher v. Merck & Co., 460 U. S. 824, 460 U. S. 837, n. 12 (1983). The bill’s demise may have been the result of events that had nothing to do with Congress’ view on the propriety of de novo review. Without more, we cannot ascribe to Congress any acquiescence in the arbitrary and capricious standard. “[T]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.” United States v. Price, 361 U. S. 304, 361 U. S. 313 (1960).

Firestone and its amici also assert that a de novo standard would contravene the spirit of ERISA because it would impose much higher administrative and litigation costs, and therefore discourage employers from creating benefit plans. See, e.g., Brief for American Council of Life Insurance et al. as Amici Curiae 10-11. Because even under the arbitrary and capricious standard, an employer’s denial of benefits could

Page 489 U. S. 115

be subject to judicial review, the assumption seems to be that a de novo standard would encourage more litigation by employees, participants, and beneficiaries who wish to assert their right to benefits. Neither general principles of trust law nor a concern for impartial decisionmaking, however, forecloses parties from agreeing upon a narrower standard of review. Moreover, as to both funded and unfunded plans, the threat of increased litigation is not sufficient to outweigh the reasons for a de novo standard that we have already explained.

As this case aptly demonstrates, the validity of a claim to benefits under an ERISA plan is likely to turn on the interpretation of terms in the plan at issue. Consistent with established principles of trust law, we hold that a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Because we do not rest our decision on the concern for impartiality that guided the Court of Appeals, see 828 F.2d at 143-146, we need not distinguish between types of plans or focus on the motivations of plan administrators and fiduciaries. Thus, for purposes of actions under § 1132(a)(1)(B), the de novo standard of review applies regardless of whether the plan at issue is funded or unfunded and regardless of whether the administrator or fiduciary is operating under a possible or actual conflict of interest. Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a “facto[r] in determining whether there is an abuse of discretion.” Restatement (Second) of Trusts § 187, Comment d (1959)

III

Respondents unsuccessfully sought plan information from Firestone pursuant to 29 U.S.C. § 1024(b)(4), one of

Page 489 U. S. 116

ERISA’s disclosure provisions. That provision reads as follows:

“The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated. The administrator may make a reasonable charge to cover the cost of furnishing such complete copies. The Secretary [of Labor] may by regulation prescribe the maximum amount which will constitute a reasonable charge under the preceding sentence.”

When Firestone did not comply with their request for information, respondents sought damages under 29 U.S.C. § 1132(c)(1)(B) (1982 ed., Supp. IV), which provides that

“[a]ny administrator . . . who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary . . . may in the court’s discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day.”

Respondents have not alleged that they are “beneficiaries” as defined in § 1002(8). See Complaint �� 87-95, App. 104-106. The dispute in this case therefore centers on the definition of the term “participant,” which is found in § 1002(7):

“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.”

The Court of Appeals noted that § 1132(a)(1) allows suits for benefits “by a participant or beneficiary.” Finding that it would be illogical to say that a person could only bring a claim for benefits if he or she was entitled to benefits, the Court of

Page 489 U. S. 117

Appeals reasoned that § 1132(a)(1) should be read to mean that “a civil action may be brought by someone who claims to be a participant or beneficiary.'” 828 F.2d at 152. It went on to conclude that the same interpretation should apply with respect to § 1024(b)(4):

“A provision such as that one, entitling people to information on the extent of their benefits, would most sensibly extend both to people who are in fact entitled to a benefit under the plan and to those who claim to be, but in fact are not.”

Id. at 153.

The Court of Appeals

“concede[d] that it is expensive and inefficient to provide people with information about benefits — and to permit them to obtain damages if information is withheld — if they are clearly not entitled to the benefits about which they are informed.”

Ibid. It tried to solve this dilemma by suggesting that courts use discretion and not award damages if the employee’s claim for benefits was not colorable or if the employer did not act in bad faith. There is, however, a more fundamental problem with the Court of Appeals’ interpretation of the term “participant”: it strays far from the statutory language. Congress did not say that all “claimants” could receive information about benefit plans. To say that a “participant” is any person who claims to be one begs the question of who is a “participant” and renders the definition set forth in § 1002(7) superfluous. Indeed, respondents admitted at oral argument that “the words point against [them].” Tr. of Oral Arg. 40.

In our view, the term “participant” is naturally read to mean either “employees in, or reasonably expected to be in, currently covered employment,” Saladino v. I.L.G.W.U. National Retirement Fund, 754 F.2d 473, 476 (CA2 1985), or former employees who “have . . . a reasonable expectation of returning to covered employment” or who have “a colorable claim” to vested benefits, Kuntz v. Reese, 785 F.2d 1410, 1411 (CA9) (per curiam), cert. denied, 479 U.S. 916 (1986). In order to establish that he or she “may become eligible” for benefits, a claimant must have a colorable claim that (1) he or she will prevail in a suit for benefits, or that (2) eligibility requirements

Page 489 U. S. 118

will be fulfilled in the future.

“This view attributes conventional meanings to the statutory language, since all employees in covered employment and former employees with a colorable claim to vested benefits ‘may become eligible.’ A former employee who has neither a reasonable expectation of returning to covered employment nor a colorable claim to vested benefits, however, simply does not fit within the [phrase] ‘may become eligible.'”

Saladino v. I.L.G.W.U. National Retirement Fund, supra, at 476.

We do not think Congress’ purpose in enacting the ERISA disclosure provisions — ensuring that “the individual participant knows exactly where he stands with respect to the plan,” H.R.Rep. No. 93-533, p. 11 (1973) — will be thwarted by a natural reading of the term “participant.” Faced with the possibility of $100 a day in penalties under § 1132(c)(1)(B), a rational plan administrator or fiduciary would likely opt to provide a claimant with the information requested if there is any doubt as to whether the claimant is a “participant,” especially when the reasonable costs of producing the information can be recovered. See 29 CFR § 2520.104b-30(b) (1987) (the “charge assessed by the plan administrator to cover the costs of furnishing documents is reasonable if it is equal to the actual cost per page to the plan for the least expensive means of acceptable reproduction, but in no event may such charge exceed 25 cents per page”).

The Court of Appeals did not attempt to determine whether respondents were “participants” under § 1002(7). See 828 F.2d at 152-153. We likewise express no views as to whether respondents were “participants” with respect to the benefit plans about which they sought information. Those questions are best left to the Court of Appeals on remand.

For the reasons set forth above, the decision of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for proceedings consistent with this opinion.

So ordered.

Page 489 U. S. 119

JUSTICE SCALIA, concurring in part and concurring in the judgment.

I join the judgment of the Court, and Parts I and II of its opinion. I agree with its disposition, but not all of its reasoning, regarding Part III.

The Court holds that a person with a colorable claim is one who “may become eligible’ for benefits” within the meaning of the statutory definition of “participant,” because, it reasons, such a claim raises the possibility that “he or she will prevail in a suit for benefits.” Ante at 489 U. S. 117. The relevant portion of the definition, however, refers to an employee “who is or may become eligible to receive a benefit.” There is an obvious parallelism here: one “may become” eligible by acquiring, in the future, the same characteristic of eligibility that someone who “is” eligible now possesses. And I find it contrary to normal usage to think that the characteristic of “being” eligible consists of “having prevailed in a suit for benefits.” Eligibility exists not merely during the brief period between formal judgment of entitlement and payment of benefits. Rather, one is eligible whether or not he has yet been adjudicated to be — and similarly one can become eligible before he is adjudicated to be. It follows that the phrase “may become eligible” has nothing to do with the probabilities of winning a suit. I think that, properly read, the definition of “participant” embraces those whose benefits have vested, and those who (by reason of current or former employment) have some potential to receive the vesting of benefits in the future, but not those who have a good argument that benefits have vested, even though they have not.

Applying the definition in this fashion would mean, of course, that, if the employer guesses right that a person with a colorable claim is in fact not entitled to benefits, he can deny that person the information required to be provided under 29 U.S.C. § 1024(b)(4) without paying the $100-a-day damages assessable for breach of that obligation, 29 U.S.C. § 1132(c)(1)(B) (1982 ed., Supp. IV). Since, however, no employer

Page 489 U. S. 120

sensible enough to consult the law would be senseless enough to take that risk, giving the term its defined meaning would produce precisely the same incentive for disclosure as the Court’s opinion.

Disclaimer: Official Supreme Court case law is only found in the print version of the United States Reports. Justia case law is provided for general informational purposes only, and may not reflect current legal developments, verdicts or settlements. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or information linked to from this site. Please check official sources.

 

____________________________________________________________________________________

Our law firm fights on behalf of individuals to obtain their long-term disability benefits.
If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000. We are based in Nashville, Tennessee; however, we represent clients in many states (Tennessee, Kentucky, Georgia, Alabama, Texas, Mississippi, Arkansas, North Carolina, South Carolina, Florida, Michigan, Ohio, Missouri, Louisiana, Virginia, West Virginia, New York, Indiana, Massachusetts, Washington DC (just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com.

 

GMA Looks Into ‘Hired Gun’ Insurance Doctors In ERISA Long-Term Disability Case

‘GMA’ Gets Answers: Man With MS Fights for Long-Term Disability Insurance

“I started getting tremors, shaking real bad in my hands and feet, making typing difficult or impossible at times, and writing getting worse under stressful conditions,” Tucker said. “I started having numbness in the hands and feet, severe, severe headaches.”

Tucker, who supports his wife, two daughters and baby grandson, was so tired he was falling asleep at work.

VIDEO: MS Victim Fights for Insurance

 

Soon, Tucker realized his fatigue and trembling were actually part of something much worse.”He is suffering from multiple sclerosis, which has basically disabled him from performing his occupation,” said Dr. Daniel Nieves Quinones, Tucker’s neurologist.

Too sick to keep working, Tucker reluctantly left his accounting job.

“It was a very emotional, very difficult thing to do, to leave my job and wonder, you know, how I was going to support my family,” he said.

Luckily, Tucker had been paying for long-term disability insurance with the Standard Insurance Company.

Last June, Tucker filed a claim with Standard. He did not receive a denial, but for months he could not get an answer. All he got were notices that the company needed more time and requests for more information.

Tucker was worried, so he hired an attorney and they obtained his records from Standard. Inside his file he discoved a surprising medical report from a doctor who works for Standard. That doctor had never met Tucker.

It was the expert opinion of 11 doctors that Tucker had MS, but the insurance company doctor said there wasn’t enough evidence. In an official report, he said, “the diagnois of multiple sclerosis is not supported … and the patient could return to a sedentary work activity.”

Tucker said the report was devastating.

“I mean, it took me almost two years to really accept the fact that I did have this disease,” Tucker said. “I had all these doctors telling me I did. And then this guy, who’s never seen me — from my understanding, he doesn’t even see patients; he does reviews like this on a routine basis — would say something like that.”

Critics Call Insurance Doctors ‘Hired Guns’

Quinones said the insurance company doctor never even contacted him about Tucker.

“My honest opinion is that you can’t arrive to the conclusions that he arrived at after reading his report withought having a proper evaluation of your patient,” Quinones said.

And Standard Insurance Company isn’t alone. Most insurance companies hire their own doctors to review patients’ claims without any in-person examination.

John Morrison, who just stepped down from his job as Montana’s insurance commissioner, said doctors who work for insurance companies risk being in their pocket.

“There’s no question that in certain cases, disability income carriers and health carriers use hired gun physician opinions in order to deny claims,” Morrison told ABC News.

What’s worse, Morrison said, is that in 39 states, insurers can add legal language to their policies, called “discretionary clauses,” which enable them to uphold claim denials in court based on evidence, such as reports from their in-house doctors.

“If there’s a little bit of evidence that supports denying the claim, such as the opinion of an in-house doctor, then a discretionary clause may support and uphold the denial of the claim by the insurance company,” Morrison said.

‘GMA’ Gets Answers

Tucker contacted “Good Morning America” to help get answers.

“GMA” asked Susan Pisano, spokeswoman for the insurance lobbying group America’s Health Insurance Plans, about the critics who say some doctors that work for insurance companies are hired guns.

“Ten billion dollars are paid out in claims. Five-hundred-thousand people are receiving disability claims annually,” Pisano said. “You know, I know a lot of physicians who are employed by disability carriers. The typical profile is a very smart, very compassionate physician who understands the health care system.”

“But you can find out if you don’t have MS or leukemia from somebody who has never seen you?” “GMA” anchor Chris Cuomo asked Pisano.

“Well, my understanding of the way this works is that the reviewer is looking at whether the medical record supports these claims,” Pisano said.

Health Insurance Denial

Standard would not talk on camera, but did issue a statement saying that Tucker’s claim was handled in a “thorough, responsive, ethical and fair manner.”Tucker had waited for Standard to approve his claim for five months, and says he was in a hellish limbo during that time. But just a day after “GMA” called Standard, they said they were now approving Tucker’s claim. The company said an independent medical review now confirmed Tucker does have multiple sclerosis after all.

Tucker is less nervous these days. Standard now pays his disability benefits, which are about 40 percent of his old salary and which allow him to support his family.

Standard said it paid Tucker when he became eligible and deny that “GMA” was the reason they paid him. But Tucker and his lawyer are grateful to “GMA” for helping and for shining light on his problem.

“It’s just absolutely terrible, and I don’t think people ought to have to go through this,” Tucker said. “I’m very hopeful that by doing stories like this that you are doing, that you can bring this to light.”

_________________________________________________________________________________________________________

Cody Allison & Associates, PLLC fights on behalf of individuals to obtain their long-term disability benefits.  If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000. We are based in Nashville, Tennessee; however, we represent clients in many states (Tennessee, Kentucky, Georgia, Alabama, Texas, Mississippi, Arkansas, North Carolina, South Carolina, Florida, Michigan, Ohio, Missouri, Louisiana, Virginia, West Virginia, New York, Indiana, Massachusetts, Washington DC (just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com.

 

Some Inside Info. on UNUM

So How Does Unum Deny Payable Disability Claims? It Used To Be Hard Work, But Not Anymore 2016

Silly Me (Although this article is indeed the most frequently viewed post on the blog, I realize it is a bit technical, but important for all insureds to understand completely how the claims process works. If your disability insurer determines the file direction, and then “stacks the deck against paying the claim” you should at least understand how it works. Again, this post is the number one most reviewed post on Lindanee’s blog.)

All group disability claims submitted to the insurance company for payment are investigated and reviewed to determine whether the claimant does or does not meet the conditions of eligibility written in policy provisions. If the insured is found to meet the conditions of the definition of disability as written, then monthly benefits are paid. If the disability insurer finds the insured does not meet any condition of the policy, benefits are denied.

This process requires the application of an objective and fair evaluation of the eligibility and medical circumstances of each claim at the time of the investigation. Unfortunately, since the disability insurer (Unum Group in this discussion) is the sole recipient of profits resulting from claim denials, management sponsored claims processes may be implemented which deprive the insured of a fair review of the facts of the claim for profit. In other words, the fox is in charge of the hen house and a majority of insureds are getting “plucked.”

In order to accomplish the desired corporate profits, all claims specialists must learn to manage, or strive to manage, blocks of LTD claims at a zero growth level. This means the number of new claims entering the block must equal the number of claims leaving the block on a weekly basis. Unum claim specialists receive anywhere from 2-6 new claims per week, therefore, the same number of claims must resolve  from the block in order to maintain manageable numbers.

Therefore, the primary question for the claims specialist is then “How am I going to get these new claims off my desk and out of my block?” Under the Unum Provident claims organization the question “when” was added by assigning expected dates of recovery to each claim. (ERD) (ERDs are currently being used in the Unum Group organization.)

The answer to the first question is called the “File Plan” or “Primary Plan Direction”. All weekly new claims are required to have a written plan documenting the steps the claim specialist needs to take in order to deny or resolve  claims, commonly referred to as a file plan.

Once devised, the file plan is expected to be followed without change unless the “change in file direction” is approved by a manager. Therefore, a great deal of thought and planning is needed in setting the primary plan direction in the first place.

Despite what many new trainees believe there are only 11 ways in which group LTD claims can be denied, or removed from a Unum claim block. Please consider the following:

Primary Plan Objective(denying or removing LTD claims from any claim block) How to Achieve the File Objective
Eligibility EP, pre-existing, eligible class etc.  This is the first rung of investigation. When claimants are found to “not be eligible” there is no further investigation and claims are denied.
Claim Withdrawn Unexpected and generally unplanned.
Not Totally Disabled Work the claim to deny based on not meeting the definition of disability in the policy.
Advance Pay & Close Deny and pay in advance in anticipation of the claimant being able to return to work full-time.
RTW DBS works the claim to obtain a medical release to return to work, or it is known the claimant intends to return to work full time. Part-time work is not a plan direction since the claim stays in the block and doesn’t do the DBS much good in terms of “resolutions.”
Reservation of Rights Status End of the month or quarter is approaching and the DBS is within 90 days of denying the claim
Deny at Change in Definition Denials are planned as the result of an any occupation investigation at the change in definition.
Settlements Negotiation with claimant will probably result in closure of claim due to settlement.
SSDI Award/Extended Duration Unit Refer claim to Extended Duration Unit for further investigation at periodic intervals.
Claimant Dies (does not generally count toward meeting financial goals.) Technically, this shouldn’t happen if a claim has remained active in a block. These claims should be immediately referred to EDU.
Mental and Nervous Limitation (does not count toward targets) Claim payments automatically end at the end of 12 or 24 months.

The first step, then in creating a File Plan is to set the expected type of denial or resolution given the circumstance of the claim, and then determine how the claim specialist is going to bring it about and make it happen. Unum’s roundtable reviews are based on this concept of determining when the claim will be denied (set the ERD), then making a sequential file plan of how to make the denial look credible.

The above is perhaps overly simplified and currently changed, but the point I’m trying to make is that the overall denial direction is determined first, and then the DBS/claims specialist fills in the necessary internal strategies needed to be taken to achieve the desired result. And, the desired result is always removing the claim from the DBS’ claim block, or the assembly line as quickly as possible.

Remember, the disability claims review process is all about financial reserves, not people. New claims came into the units every week, and claims must go out every week. The type of denial is set first, and then the DBS determines what steps needed to be taken in order to actually deny the claim and make it look credible.

This is the first priority step in terminating legitimate payable group LTD benefits –first you determine what you are going to do, and then you figure out how you are going to do it using all of the internal resources available to you as a claims specialist.

It should be obvious how important the File Plan is in terms of claim documentation since it “lays out” how the claim specialist intends to deny the claim. I learned the hard way how critical this file document was when one of the managers happened by while I was preparing a copy of a claim to send to an attorney who had requested it.

What are you doing?” the manager remarked, looming over my shoulder. “You  aren’t going to send them the whole claim file are you?”

I wasn’t sure. The manager, one of the more senior ones I might add, pointed  under my desk and said “Hand me that wastebasket.”

“Here, you don’t want them to have this do you?” she gasped, pulling documents out of the claim file copy.

I shrugged. In the can the document went.

“And what about this?” she said pulling out the File Plan.

“Never send these”, or this or this”, pointing to papers documenting conversations I’d had with my manager at roundtables.

“Got the idea? Go through the claim and pull out what you think is internal  confidential information and give the rest to me for review before you send it  out.”

Little did I realize at the time this was my first lesson in how to “sanitize” a claim file copy, but it did drive home how important the File Plan was. In addition, this was one of my first indoctrinations to the concept of “it’s ok to do what we’re doing, we just don’t want anyone else to know about it.”

So what is the first step in denying LTD claims that should be paid?  You plan it. It’s deliberate, and willful, and diagramed. Disability insurance companies tell you “each claim is reviewed and determined on its own unique circumstances.” This statement may make for good marketing, but it isn’t truthful at all.

In today’s claim review environment disability insurers use any number of internal diary systems such as SOAP NOTEs or Navalink to keep track of how the claims handler is progressing toward the eventual goal of terminating benefits. Unum Group today uses Navalink as their diary system and upon recommendations of upper management actually documents less in the file, not more.

(Today, Unum encourages less claim documentation rather than more. Ten years ago there was a Unum manager saying, “If it isn’t documented, it didn’t happen. I suspect today the saying is closer to, “If it did happen, leave it out.”)

After the file plan is written and placed in the Administrative Record, the claim specialist  “utilizes resources” to obtain what appears to be credible claim file documentation written by internal resources attesting to the fact the claimant has work capacity and therefore does not meet the conditions of disability as written in the policy.

In effect, all liability claim denials are the result of the accumulation of review documentation from internal and external resources rendering opinions favorable to the insurance company. There’s nothing unique, fair or equitable about it.

Although the claims handler may not deny benefits without written documentation obtained from qualified internal resources, it is believed the more documentation there is, the more credible the denial will be on appeal. LTD claim denials do not take place over night since it takes time to walk the claim through the predetermined steps in the file plan. The idea is to create the “illusion” of credibility by “stacking the deck” with what appears to be credible information supporting claim denials.

Unum Group resources available to the claims handlers  includes physicians (OSP), nurses (RN), vocational experts(CRC), social security experts, special investigation unit representatives, and financial and settlement unit specialists. Claim specialists were instructed to use as many of the resources as possible to obtain written opinions from credentialed staff. Claims could be “walked-in” for review during certain hours, or referrals could be made for more formal reviews.

Unum Group employs a staff of medical resources with “board certified” credentials and psychiatric specialties as well as outsourcing other medical reviews to local physicians. Vocational specialists were required to have CRC, or Certified Rehabilitation Counselor credentials and Masters Degrees, while members of other specialized units consisted of experienced claims specialists with 15+ years experience in some cases. In fact Unum Group often boasts of predominately tenured employees, not just in the claims areas, but company wide. An experienced and well-trained claims personnel  is Unum Group’s greatest and best resource which is why it wasn’t a good idea to fire tenured claims staff and replace it with new personnel.

Today, Unum employs a 3 or 4 step hierarchy of claim review whereby several of Unum’s doctors are asked to review information and agree with medical reviews that took place before it. Of course,  no internal Unum physician will ever disagree with another, the message is loud and clear that Unum “stacks the deck” against its insureds and claimants.

As a general rule, the insurance industry was, and still is, really big on credentials. In documenting claim files, the best credentials the industry could buy are essential to the credibility of the entire claims review process. Internally acquired medical and vocational credentials are marketed to the general public as an assumed standard of review, but in reality both medical and vocational resources receive the same incentive bonuses (and, at higher levels) than anyone else, thereby giving these internal resources a clearly defined financial “vested interest” to tote the company line and implement management’s claims strategies. And, in order to keep one’s job you had to be a team player and buy-in to protocols set by company management.

After the claim specialist applies all of the resources or “steps” indicated in the file plan, the desired outcome, a claim denial or resolution, was achieved. A piece of cake. Once the specialist had sufficient documentation from the medical department indicating the claimant’s restrictions and limitations were not supported, as well as an opinion from the vocational specialist identifying an exertional standard related to work capacity, the claim is easily denied as not meeting the definition of disability in the policy. As indicated previously, given the time needed to obtain documented opinions from the department resources, any experienced claims specialist could obtain sufficient documentation to deny an LTD claim.  It’s not that hard.

I am often sarcastically asked if Unum Group ever “approves” claims and the answer to that is, “Of course they do.” Approximately fifty percent or less of the group LTD claims are paid to duration and were eventually transferred to EDU where they receive minimal attention and no risk management activity is applied to them. The paid claims are those with critical and/or terminal disabilities such as end stage renal disease, blindness, loss of limbs, heart transplants, and so on. These approved impairments were generally serious enough such that Unum Group would appear to be ridiculous if benefits were denied.

In addition, when departmental block numbers grow to an unmanageable size, managers indiscriminately pull claim files for massive referrals to EDU. These were “the lucky” claimants. At differing times, claims are targeted for those over 50 years of age, lack of a high school credentials, multiple sclerosis diagnoses, and even lack of skills for transfer to EDU. Transfers to EDU remain the manager’s “ace in the hole” when the unit claim specialists fail to manage the claim blocks at 0 growth level. Keep in mind though, that transfers of claims to a permanently and totally disabled area produce  no recognizable profit for Unum, and therefore are seen as” lost opportunities for resolution and profit.”

According to a terminated Unum employee, there is no longer any safety zone in Unum’s EDU. From 2012- present Unum has been denying claims awarded SSDI and paid 10, 15, 20 or more years. Unum’s ex-employee told DCS, Inc. she was in the process of being reassigned to EDU with the charge of “denying as many claims as she could.” Obviously, Unum made short order of claims in the EDU and continues to do so today.

ADDENDUM

I think it is extremely important for me to add information to this post. After reading Unum’s benefit manual in 2013, it is clear the company tightened its claims process in an extremely harsh way. Medical Directors and OSPs (internal docs) are monitored by the Quality Compliance Department which demands and corrects certain language in internal medical reports. In addition, the company increased the number of reviews received by LTD claims since it is better to deny group LTD at the initial application review rather than later on. In the end, it is reasonable to come to the conclusion that Unum denies claims unfairly and indiscriminately. It’s not really hard work anymore, but more the norm.

Off and on I hear or read about Unum’s “Rule of 3’s”. According to a few of Unum’s terminated employees, if the claims handler can obtain evidence of work capacity from 3 sources, the claim can be denied. Along with this Unum is thought to use IMT sheets targeting certain claims on a daily basis. If you name appears on one of these sheets, it’s likely you will receive the lion’s share of “risk management” until the claim is actually denied.

What is apparent from all of the above is that Unum DELIBERATELY plans and sets out to deny legitimate, payable claims for profit at the expense of insureds and claimants.

ADDENDUM 2015

In my opinion, Unum Group’s claims process is perhaps worse than pre-multi-state settlement levels. The company now uses a hierarchal medical review process intended to substantiate its claim denials by numbers of medical reviews stacked against insureds and claimants. IME and patient information is misrepresented to favor Unum’s denial agenda.

The company also created specialized departments or “fixers” to prevent its dirty laundry from reaching regulators and therefore the company appears immune from prosecution. Of late, company executives have tried to influence the US government in a manner very similar to what transpired in the UK. Propaganda information communicated to the US government including SSA is likely to give Unum Group authority and power to direct US government policy in the future.

Insureds and claimants have an opportunity now to curb Unum’s influence in government affairs. Nevertheless, there is no indication that Unum Group will ever “walk the talk” of good faith and fair dealing.

ADDENDUM 2016

So far there is no expectation that Unum Group’s operations and claims practices are changing for the better in 2016. The company has several regular employee “firings” during the year eliminating aging female personnel and those who have demonstrated the need to use medical insurance or be out on STD.

Unum continues with its multi-layered medical reviews that “stack the deck” against insureds and claimants in ways that appear credible. There is no evidence to indicate state regulators are “watching” either. It’s my understanding Unum’s “Settlement Area” has also transitioned from offering “alternative options” to just another “risk management” opportunity for the company to rid themselves of more claims.

This isn’t a great outlook for 2016.

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Cody Allison & Associates, PLLC fights on behalf of individuals to obtain their long-term disability benefits.  If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000. We are based in Nashville, Tennessee; however, we represent clients in many states (Tennessee, Kentucky, Georgia, Alabama, Texas, Mississippi, Arkansas, North Carolina, South Carolina, Florida, Michigan, Ohio, Missouri, Louisiana, Virginia, West Virginia, New York, Indiana, Massachusetts, Washington DC (just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com.

 

I Recently Came Across this Article on Disability Insurance

 5 Myths about Disability Insurance

 

I write about how to build, manage and enjoy your family’s wealth.

Safety Goggles 3Shortly after putting out the group’s first pamphlet on how disability insurance can protect your family, Stephen Brobeck, executive director of the Consumer Federation of America, started offering it as a benefit to his employees. “That work [15 years ago] made me aware that I was being an irresponsible employer because we weren’t offering disability insurance,” he says, adding, “We feel pretty strongly that this is an important type of program.”

Brobeck is still trying to get the message out to other employers, and to employees, many of whom don’t even know whether or not they’re offered this benefit at work. Add it to your checklist for this fall’s open enrollment season when you sort through the benefits you’ll sign up for for next calendar year.

This week the Consumer Federation of America and Unum, the leading long-term disability insurance player by market share (16.2%), released a report based on interviews with 407 individuals who put in claims based on their employer group policies through Unum and have been on long-term disability for at least six months—or used to be. “The beneficiaries told us that disability insurance payments played an essential role in protecting their financial and emotional lives,” Brobeck says.

Long-term disability payments don’t replace your salary; they provide a buffer—usually 60% of your salary. That means that most recipients have to adjust their lifestyles and priorities: of those interviewed for the report, 85% cut back or completely stopped saving for retirement, and 58% skipped or delayed some medical, dental or vision care for themselves or family members.

Here are five myths about disability insurance the report debunks:

I doubt I’ll ever need it. The Social Security Administration estimates that one in four 20-year-olds will become disabled and unable to work before they reach the age of 67. In 2012, more than 650,000 disabled workers received more than $9 billion in long-term disability benefits through employer-sponsored group disability coverage.

Worker’s compensation will cover me. Worker’s comp replaces lost income if an injury or illness occurs on the job, but fewer than 5% of disabling accidents and illnesses are work-related. Most (90%) of long-term disability claims are for illnesses, not accidents. Vicki Burhenn, a Unum long-term disability recipient, from Lawrence, Indiana, went on disability in 2010 when her chronic obstructive pulmonary disease progressed so that she could no longer work as an office administrator at a mental health facility. “Emotionally, going on disability insurance was a Godsend, knowing I had the money coming in; it’s like going from drowning to taking a deep breath,” she says.

Recommended by Forbes

It’s a man’s problem. 60% of the Unum long-term disability recipients over the 2009-2012 time period were women.

I’m too young to worry about it.  41% of Unum long-term disability recipients over the 2009-2012 time period were younger than 50, with a third of those under 40. Dawn-Michelle Wyzard, a single mom in her 30s, from Clarksville, Indiana, counted on two rounds of disability payments when she had back surgery and needed time off from her job as a healthcare data processing administrator. “There is no way I could have survived the surgery financially without disability benefits,” she says, adding, “It helped me to not be stressed because I knew the money would be there.”

I can get coverage on my own. Individual disability insurance, sold through financial advisors, is considerably more expensive than employer-sponsored coverage. Yet only a third of private industry workers have access to employer-sponsored coverage, according to the Bureau of Labor Statistics. Some employers pay 100% of the premiums; some share the cost with employees; and some offer it as a voluntary employee benefit, requiring the employee to pay 100% of the premium. Before you go on the individual market to try to buy a better policy, check if your employer gives you the option to “buy up” and add additional coverage.

____________________________________________

Our law firm fights on behalf of individuals to obtain their long-term disability benefits.  If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000. We are based in Nashville, Tennessee; however, we represent clients in many states (Tennessee, Kentucky, Georgia, Alabama, Texas, Mississippi, Arkansas, North Carolina, South Carolina, Florida, Michigan, Ohio, Missouri, Louisiana, Virginia, West Virginia, New York, Indiana, Massachusetts, Washington DC (just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com.