LAW OFFICES OF TONY C. MERRY, L.L.C.

7100 N. High street, suite 302

worthington, ohio 43085

TO: Employee Benefits Security Administration

United States Department of Labor

RE: Comments to RIN 1210-AB39

INTRODUCTION

Ladies and Gentlemen:

I am a solo practitioner in Central Ohio, and my practice consists largely of the 

representation of claimants in ERISA benefits matters and plaintiffs in ERISA litigation. I 

commend the Department for addressing issues associated with the processing of employee 

benefit claims, and particularly claims for disability benefits.

I further appreciate that the Department is endeavoring to address what, in my 

experience, are the two most persistent and grievous abuses that disability benefit claims 

administrators visit upon claimants. Now more than ever, administrators are relying on file 

reviews, too often prepared by physicians who long ago stopped practicing medicine, and always 

prepared by physicians who are out to collect the consulting money that administrators are 

willing to pay. The Supreme Court cautioned long ago that one should be wary of a physician 

who has a vested interest in concluding that a claimant is not disabled in order to protect the 

physician’s consulting relationship. The Department’s proposal is a step in the right direction, 

but as my comments below reflect, it does not go far enough.

The second abuse is the claims administrators’ two-faced approach to Social Security 

disability determinations. Administrators are, of course, eager to have clients pursue a Social 

Security disability claim because of the fiscal windfall that accrues to the plan following a 

disability award. But these administrators too frequently turn a blind eye to the same disability

determination when it comes to deciding whether the claimant is disabled for purposes of their 

own plan.

On too many occasions, my clients have received, sometimes within days of each other, 

two letters from claims administrators. The first informs them that their claim has been overpaid 

due to the Social Security determination, demands immediate repayment, and threatens legal 

action if the repayment isn’t promptly forthcoming. The second letter informs the client that the 

same claims administrator has determined that the claimant is no longer disabled and terminates 

their claim. The Department’s proposal to address this abuse is a positive development, but it,

too, does not go far enough.

The comments below are based upon more than 20 years of experience handling these 

claims. I appreciate the opportunity to offer them.
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COMMENTS

I. Comments regarding the proposed regulations.

A. Addition of paragraph (b)(7)

I support the addition of this paragraph as far as it goes, but offer the following 

suggestions:

• Persons employed by the administrator also should not be indirectly rewarded for 

denying claims. For example, a plan employee who participates in the employer’s 

profit sharing plan or holds the employer’s stock in a qualified or non-qualified 

plan may perceive that it is to the benefit of the employee to deny disability 

claims because the denial of the claims improves the profitability of the employer.

The rule should be extended to address these potential indirect conflicts of

interest.

• With respect to paid consultants, this rule is likely meaningless without a 

concomitant disclosure requirement that identifies how many times each 

consultant has recommended approval or denial of disability claims. In light of 

the fairly sophisticated computer systems that all insurers now employ, it cannot 

be difficult for them to track this information (or to require the vendors with 

whom they contract to provide this information).

• I suggest that the new rule include a further requirement regarding medical 

experts. Administrators should be precluded from contracting with medical 

experts who do not maintain an active and vigorous medical practice.

o As an example, Ohio Rule of Evidence 601(D) requires medical experts to 

be actively engaged in medical practice at least half-time before they are 

considered competent to testify as an expert in a medical malpractice case.

o Limiting experts to actual practicing physicians would have at least two 

beneficial effects. First, it would increase the likelihood that the experts 

consulted would be current in their understanding of relevant medical 

practice. Second, it would help end the consulting class that courts have 

observed have an incentive to find in favor of administrators in order to 

preserve their consulting relationships.

B. Revision to paragraph (g)(1)(v)

No comments, except to note that it makes sense to separate health claims and 

disability claims.
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C. Addition of paragraphs (g)(1)(vii) and (viii)

I support the addition of these paragraphs, but I believe they need to be strengthened, 

as follows:

• With respect to opinions offered by treating physicians, the Department should 

adopt the “treating physician rule” that is applicable in Social Security disability 

case. Adoption of the treating physician rule simply recognizes that physicians 

who have treated a claimant over an extended period of time are in the best 

position to know and understand the claimant’s symptoms, the diagnoses and 

treatment plans, and the claimant’s limitations. Adopting the “treating physician 

rule” would also complement the Department’s view that private plan

determinations should more reasonably align with Social Security disability 

determinations.

• Subsection (A) should further be strengthened to require that a plan provide a

substantive response to a Social Security (or other plan) determination of 

disability.

o An administrator in a recent case that I am handling explained the basis 

for its disagreement with a Social Security determination simply by stating 

“we have received more recent medical information than was available to 

the Social Security Administration.” Under the rule as proposed, those are 

the kinds of answers that administrators will provide.

o The rule, therefore, should be strengthened to require the plan to draw a 

substantive distinction. For example, in a situation similar to the one just 

described, an administrator should be required to identify with specificity 

the “more recent” medical records upon which it relies and to explain why 

these “more recent” medical records justify a departure from the Social 

Security Administration’s decision.

• With respect to subsection B, I recently encountered a circumstance where an 

administrator refused to rely on an internal protocol that I knew (from prior 

experience with the administrator) to exist. I did not, however, have a copy of 

that protocol, and since the administrator professed not to rely on it, it did not 

disclose the protocol to me upon my request. The rule should require the 

disclosure of applicable protocols, whether or not relied upon.

D. Revision of paragraphs (h)(4), (i)(3)(i) and (j)(5)

I agree with the intent of the (h)(4) revision. All too often, in my experience, 

administrators have obtained an opinion from a consultant, then denied the claim based 

upon that opinion, without providing me or my client the opportunity to respond.
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There is, however, a danger in the proposal, particularly as the Department has 

explained how it is intended to work. Administrators will always be able to obtain 

another opinion from another consultant, requiring the claimant to respond yet again. 

Thus, the review process can be extended indefinitely - or at least until the claimant 

wearies of rebutting an endless series of file reviews. 

Administrators and their consultants should be required to get it right the first 

time. Cf. Hayden v. Martin Marietta Materials, Inc. Flexible Benefits Program, 763 F.3d 

598, 609 (6th Cir. 2014) (“Plan administrators should not be given two bites at the 

proverbial apple where the claimant is clearly entitled to disability benefits. They need to 

properly and fairly evaluate the claim the first time around; otherwise they take the risk 

of not getting a second chance, except in cases where the adequacy of claimant's proof is 

reasonably debatable.”).

I suggest, therefore, that an administrator not be permitted to acquire “consultant

evidence” ad infinitum. Thus, the rule should be, as follows. If an administrator obtains 

an opinion from a consultant who recommends that a claim be denied, the administrator

must provide the opinion to the claimant and offer the claimant an opportunity to 

respond. If the claimant or his physician provides a response, the administrator then must 

evaluate the claim based upon the original consultant’s opinion and the claimant’s 

response to it. The administrator should not be permitted to obtain yet another opinion 

from another consultant.

This rule would be beneficial for two reasons. First, it would prevent round after 

round of reviews without a final and conclusive determination. Second, too often 

administrators issue decisions that simply incorporate the consultant’s opinion, without 

making any effort to weigh the consultant’s opinion against the other evidence. Putting it 

another way, too often administrators simply delegate the decision-making to their paid 

consultants. Requiring them to assess the consultant’s opinion in light of the claimant’s 

rebuttal will return the decision-making to the administrator.

E. Addition of paragraphs (j)(6) and (j)(7)

See my comments in Part C above.

F. Revision to paragraphs (l) and (m)(4)

With respect to the new rule on deemed exhaustion, I suggest the Department modify 

or eliminate the sentence: “This exception is not available if the violation is part of a 

pattern or practice of violations by the plan.”

• As written, many administrators will argue, and some courts will accept the 

argument, that everything is de minimus unless the claimant can demonstrate that 

the violation is part of a pattern and practice. This sentence, therefore, effectively 

destroys the intent of the rule.
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• The sentence, furthermore, is unnecessary because a violation that is part of a 

pattern or practice cannot, perforce, be for “good cause.”

G. Addition of paragraphs (m)(9) and (p)

In my opinion, the addition of the definition of “claim file” creates a conflict - or at least 

creates the opportunity to litigate over a perceived conflict - with the definition of 

“relevant information? Is a “claim file” a subset of the “relevant information” that an 

administrator must provide. Or is a “claim file” required to contain all “relevant 

information?” And if it is, what other information is a “claim file” permitted (or

required) to include? At a minimum, the Department should clarify the purpose of the 

new definition.

II. Comment regarding the statute of limitations.

I wholeheartedly support requiring claims administrators to state in unambiguous terms the 

date by which a claimant must pursue legal action. Many claimants are unrepresented by 

counsel, ERISA should not be a game of “gotcha,” and with the array of computerized 

information at their disposal, claims administrators are in the best position to know when 

the statute of limitations is to run.

I appreciate the opportunity to provide comments and will be happy to provide further 

information upon request. 

Yours very truly,

Tony C. Merry

Tony C. Merry

Law Offices of Tony C. Merry, LLC

7100 N. High Street, Suite 302

Worthington, Ohio 43085

(614) 372-7114

(614) 505-6109 [fax]

tmerry@tmerrylaw.com