Sent: Tuesday, January 19, 2016 8:43 PM

To: EBSA, E-ORI - EBSA

Subject: RIN 1210-AB39

Re: RIN 1210-AB39

I am writing to comment on the Proposed Regulations issued by the Department of Labor, 

Employee Benefits Security Administration on November 18, 2015 (“Proposed Regulations”).

Firstly, I want to commend the Department of Labor (“Department”) for this very constructive 

proposal. I strongly approve of the comment made by the Department in the preamble that 

“disability claimants deserve protections equally as stringent as those that Congress and the 

President have put into place for health care claimants under the Affordable Care Act.”

I am presently a disability recipient under an employer-sponsored disability plan governed by the 

Employee Retirement Income Security Act of 1974 (“ERISA”) and its requirements regarding 

claims procedures. I can speak first hand to the potential abuses occurring under the current 

claims-procedure regulations and the urgent need to address these in the Proposed 

Regulations. My journey toward obtaining disability benefits was a many-years-long nightmare 

which I was forced to fight while at my weakest and sickest.

The proposed tightening of the conflict-of-interest rules is particularly welcome. Prohibition 

against a claims fiduciary (typically the insurance carrier insuring the disability claim under the 

employer plan) making any decisions regarding hiring, compensation, termination, promotion or 

similar matters with respect to any individual (such as a claims adjustor or medical expert), based 

on the likelihood that the individual will support the limitation or denial of disability benefits, 

should—going forward—help eliminate, or substantially reduce, the documented cases of such 

behavior by disability insurance carriers, most notably Unum/Provident (see John H. Lanbein, 

Susan J. Stabile, Bruce A. Wolk, Pension and Employee Benefit Laws at pp. 669-74). The 

insurance carrier would not be permitted to contract with a medical expert based on the expert’s 

pattern of denying claims, as is clearly the typical situation today, which I know from my own 

experience. This will, I hope, add a measure of integrity to independent medical exams (IMEs) 

used so frequently to contest, and ultimately deny, a disability claim notwithstanding the opinion 

of the claimant’s doctor.

The proposed amendments to the disclosure requirements should also prove helpful to disability 

claimants faced with a claim denial based on ill-defined reasons. The requirement to produce a 

detailed description of the denied decision, including the basis for the plan’s disagreement with 

the claimant’s treating physician or the Social Security Administration as well as the internal 

rules, guidelines, protocols, standards or other criteria applied to deny the claim, should prove 

helpful in appealing denied claims in court.

The other proposed changes are meritorious as well and should be adopted as part of the final 

regulations. For example, the “de novo” standard of review in cases where the plan has not 

followed the correct procedures should provide an effective incentive for disability carriers to 

comply with the relevant rules—an incentive that is unfortunately so desperately needed.
The Proposed Regulations give disability claimants more procedural rights and safeguards to 

partially offset what is a an unacceptably and unjustifiably uneven playing field at present. I can 

speak from personal experience that disabled claimants are faced with substantial procedural 

obstacles put in their way by disability carriers. This is particularly disturbing in light of the 

diminished capacity of most claimants—due to the limitations imposed by their disability—to 

get through all the gratuitously cumbersome procedural hurdles and grueling, harassing and 

irrelevant requirements placed on them by the disability carriers. Given the lack of a jury trial, 

the prohibition against punitive damages and the potential deferential standard of review of 

denied claims, these proposed changes are critical to provide at least some fairness to disabled 

claimants in a process that is heavily structured against them.

For the above reasons, I strongly support adoption of the Proposed Regulations as soon as 

possible. Thank you very much.