From: Marcus Castillo [mailto:marcus1499@gmail.com] 

Sent: Tuesday, January 19, 2016 4:04 PM

To: EBSA, E-ORI - EBSA

Subject: RIN 1210-AB39 Comments re proposed ERISA claims regulation amendments 

Dear Sirs/Madam,

I am writing to comment in support of the proposed amendments to the ERISA claim 

procedures affecting disability plans published at 80 F.R.No. 222 at 72014, which would amend 

29 C.F.R. Part 2560.

I am an attorney board-certified by the Florida Bar in Labor and Employment Law 

specializing in employee benefits litigation. A significant portion of my practice includes 

disability insurance cases. As such, my clients’ cases are governed by the existing claim 

regulation. Unfortunately, my experience echoes the Department’s comments stated as a 

rationale for adoption: “insurers ... are often motivated to aggressively dispute disability 

claims.” I see this most clearly demonstrated in the “gotcha” tactic of retaining new consulting 

experts after submission of the claimant’s appeal and thwarting any effort to disclose any 

information about such expert, let alone allow rebuttal of any new opinions. As noted in the 

commentary, this conduct has been condoned by the courts because the existing regulation does 

not provide a “review and response” right. See for e.g., Glazer v. Reliance Standard Life 

Insurance Co., 524 F.3d 1241 (11th Cir. 2008).

The manifest unfairness of the status quo is several-fold. Remember that the claimant 

bears the burden of proof on judicial review. The claimant bears that burden under the present 

system without having had the slightest opportunity to cross-examine adverse witnesses and 

without even having had the benefit of disclosure of adverse witnesses during the pre-suit 

appeals process. And yet that process is the closest justice to a “trial” the claimant ever 

gets. Adoption of review and response rights is merely a step in the right direction. True justice 

would afford claimants an opportunity to cross-examine the carrier’s retained experts. This 

might well be the only opportunity to test their credibility since many federal courts severely 

restrict discovery during judicial review.

I strongly support backing the new regulation’s mandate with “teeth” by stripping 

disability insurance carriers of the deference that often steers a court’s decision in their 

favor. The status quo is often a “fox guarding the henhouse” situation: the so-called “neutral” 

claims adjudicator is simultaneously a representative of the carrier potentially responsible for 

paying the claim. Add to that the existing lack of effective “review and response” rights and it is 

a marvel that the existing system is even constitutional.

In sum, I urge you to adopt the proposed amendments as a first step towards rectifying 

the gross abuse of trust placed in carriers handling these claims.

Marcus A. Castillo, Esquire

Haas & Castillo, P.A.

Attorneys At Law

19321-C U.S. Hwy 19 N, Ste. 401
Clearwater, Florida 33764

(727) 535-4544 telephone

(727) 535-1855 facsimile

marcus@haas-castillo.com

Visit our newly redesigned website at www.haas-castillo.com

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