LAW OFFICE OF

STEPHEN L. RAYMOND, ESQ.

SUITE 206

3 WASHINGTON SQUARE

HAVERHILL, MASSACHUSETTS 01830

 

*ALSO ADMITTED

IN NEW YORK

_________________

 (978) 372-6590

FAX (978) 372-6596

sraymond@attorneyraymond.com

January 19, 2016

By Electronic Transmission

Pyllis C. Borzi, Assistant Secretary of Labor

Employee Benefits Security Administration

Room M-5655

U.S. Department of Labor

200 Constitution Avenue, NW

Washington, D.C. 20210

Re: Claims Procedure Regulations for Plans Providing Disability Benefits

RIN No.: 1210-AB39

Regulation: 29 C.F.R. §2560.503-1

Dear Secretary Borzi:

I write on behalf of past and present clients, each of whom is an ERISA plan participant

and disability benefit claimant who was denied benefits. 

After law school, I went on to earn an LL.M. in Labor and Employment Law from

Georgetown University Law Center, and in conjunction therewith, also earned its Certificate in

Employee Benefits Law. I began private practice in New York, representing individuals whose

disability claims had been denied, approximately 90% of these individuals were participants in

ERISA-covered employee benefit plans. I later moved my practice to suburban Boston. I

believe, based upon what I have been told by prospective clients and colleagues alike, that I am

the only attorney who routinely handles ERISA disability benefits litigation on behalf of

individual plan participants north of Boston. Over the past twenty years I have represented

hundreds of such clients at all stages: administrative claim review, through federal litigation, as

well as appeal. Approximately 80-90% of my practice is dedicated to representing ERISA

disability claimants. 

When I started out, the federal courts were still of the view that a claimant was entitled to

a trial in the review of his benefit denial, and full discovery was allowed without question, just as

in any other civil suit in federal court. Much has changed, however, over time, and an ERISA
Pyllis C. Borzi, Assistant Secretary of Labor January 19, 2016

Re: Proposed Changes to 29 C.F.R. §2560.503-1

2

plan’s participant’s opportunity for success in the litigation of claim denial review has been

steadily narrowed. The above-noted dearth of competing plaintiff-side ERISA benefit attorneys

is due to the difficulty in achieving positive results in these cases due to the unbalanced

application of the governing law. Simultaneously, because the entities charged with the

administration and management of employee benefit plans and their assets operate under a

conflict of interest, the trend has been an increase in unreasonable claim practices. This has

made the internal, or “administrative” review of claims all the more important. Accordingly, the

proposed changes to the regulations would strengthen them, particularly to the benefit of plan

participants.

I would also like to provide three additional comments.

First, the DOL should codify Abram v. Cargill, 395 F.3d 882 (8th Cir. 2005). A full and

fair review–that which is required by ERISA–is meaningless where an insurer simply waits to

hire its own paid medical reviewers, and then relies upon their paid opinions without the

opportunity for input or rebuttal by the claimant. This type of “sandbagging” is a practice which

must be stopped, for ERISA to be true to its intent.

Second, the regulations should require significant deference to favorable Social Security

Disability (“SSDI”) decisions because obtaining SSDI is more difficult. SSA uses different

criteria for determining disability, than that found in the typical ERISA Long Term Disability

(“LTD”) Plan. It is a tougher standard for a claimant to meet. Under most LTD plans, the

claimant must show only an inability to work in any occupation, taking into account training,

education, experience, and (in some cases) pre-disability earnings. This is far less strict than

SSA’s standard.

Finally, I join my colleagues who have suggested that the plan administrator be required

to alert a claimant, specifically, and in writing, to the limitations period’s actual date, for

bringing suit in federal court. The administrator is in the best position to do so. Alternatively, I

propose the regulation be amended to provide that:

a plan will be deemed to be reasonable only if– it includes a provision such that its

contractual limitation period begins to run only as of the date of its final denial upon

review, and be for a period of no less than one year. 

Respectfully submitted,

/s/ Stephen L. Raymond

Stephen L. Raymond