WOLGEMUTH & LEVINSON

Law Offices
P.O. BOX 10305
LANCASTER, PA 17605-0305
717-392-0389

January 14, 2016

By Email: e-ORI@dol.gov

Office of Regulations and Interpretations,
Employee Benefits Security Administration
Room M-5655

US. Dept. 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 Assistant Secretary Borzi:

I wish to offer comments on the proposed regulations for amending the claims procedure
regulations applicable to disability benefit plans. I am an attorney who represents claimants in
ERISA-governed disability claims. I can tell you that it is an unfair battle to represent claimants
in these cases with the current regulations. The most important changes in your proposed
regulations in my opinion are your changes to require claims administrators to disclose evidence
they have acquired prior to making a claims decision on appeal and to ensure that all claims
decisions and appeals decisions are impartial.

Right to Respond to New Evidence or Rationales.

The DOL’s proposed regulations will help claimants respond to evidence generated by
hired guns with new rationales or evidence during review on appeal. This change is needed since
sandbagging has been a persistent problem in the ERISA appeals process. Often the appeal
decision will be issued the same day that the new evidence is received. Without the proposed
changes claimants do not get a fair and full review on appeal. In addition, while I think that the
proposed change to the regulation is good, the regulation should include a time deadline for the
claimant to respond to the new evidence and a time deadline for the claims administrator to make
its final decision.

Impartiality

I believe that your proposed changes requiring impartiality in claims and appeal decisions
is good but I think the change will be hard to enforce without additional changes to the



regulations. I think the regulation should include a provision that requires the claims
administrator to disclose to a claimant how many times the decision maker found in favor of the
claims administrator and how many times the decision maker ruled in favor of claimants.
Similarly, I think that the proposed changes to the regulations should include a requirement that
the claims administrator disclose how many times they have used the medical source for a peer
review and how times the medical source found that a claimant was disabled and not disabled.
To say that the medical sources that claims administrators use are “impartial” is a joke. I prevail
in appeals of disability benefit determinations in only about 20% of the claims. Statistically, that
should not be the case.

Social Security Awards.

The regulation requiring a discussion about the difference between the plan’s decision
and awards made by other systems, such as Social Security, should be expanded to set forth a
deferential review requirement. For example, in the regulatory settlement agreement UNUM
was required to follow, this language was used:

The Companies must give significant weight to evidence of an award of
Social Security disability benefits as supporting a finding of disability,
unless the Companies have compelling evidence that the decision of the
Social Security Administration was (i) founded on an error of law or an
abuse of discretion, (ii) inconsistent with the applicable medical evidence,
or (iii) inconsistent with the definition of disability contained in the
applicable insurance policy.

Claims administrators typically discount a Social Security disability award by claiming
that the provisions in the plan are different then the law that the Social Security Administration
applies. This explanation is nonsense. To prevail in an award of SSD, a claimant must prove that
he is unable to perform substantial gainful employment. With that determination, it should be
extremely difficult for a claims administrator to rule against an ERISA claimant. Thus, the SSD
award should control unless the claims administrator can show one of the above.

Respectfully submitted,

WOLGEMUTH & LEVINSON

By: K ZL Moma

Kirk L. Wolgemuth, Esquire
Attorney ID #: 45792
Attorneys for Plaintiff

501 Richardson Drive

P.O. Box 10305

Lancaster, PA 17603

717 / 392-0389
kwolgemuth@palawyers1.com