Law Offices

John J. Spiegel

Professional Association

14901 Bald Eagle Drive

Fort Myers, Florida 33912

_____________

Telephone (305) 804-3051

jspiegel@bellsouth.net

John J. Spiegel

Rosann M. Spiegel

January 19, 2016

Employee Benefits Security Administration

Re: RIN 1210-AB39

Dear Assistant Secretary Borzi:

I am an attorney. For nearly 30 years I have represented hundreds of clients who found it 

necessary to make a claim for private disability insurance benefits. Over this time, an 

increasingly greater portion of my clients’ claims are governed by ERISA. My substantial 

experience in disputes over entitlement to these benefits has taught me that there are stark 

differences in the outcomes of disability insurance claims governed by ERISA and those 

governed by state law.

The simple fact is that in every state in which I have handled claims, state law is fundamentally 

more fair, more balanced and easier for a claimant to navigate than ERISA claims. I will also 

admit that while I have substantial experience in the handling of ERISA matters, even for an 

experienced attorney, ERISA is daunting, complex and loaded with pitfalls for the unwary.

The proposed regulatory revisions will be helpful for claimants and their representatives. 

Allowing claimants sufficient time to respond to “new” evidence or a “new rationale” asserted 

by the plan administrator is critical. There also can be little doubt that clear, well communicated 

deadlines will be an improvement. It is essential that claimants know the date after which their 

claim or internal appeal will be time barred. Indeed, these deadlines should be required to be 

communicated repeatedly to claimants, many of whom suffer mild to moderate cognitive 

problems and are easily confused.
I. Claimants should have at least 90 days to respond to “new evidence” or a “new 

rationale” asserted by plan administrators.

As a practical matter, a claimant confronted with new evidence may need time to 

return to her treating doctor, undergo new diagnostic testing, consult a vocational

expert, collect statements from co-workers, supervisors, family members and the like.

Doctors are busy. Appointments can be weeks away. Diagnostic testing only occurs 

long after being prescribed by a physician. Follow-up doctor visits are required to 

discuss the testing results with the patient/claimant. Insured plans, however, have 

readily available medical personnel whose job it is to help satisfy the agenda of the 

insurance company, who, after all, pays the medical personnel’s salary.

Allowing claimants 90 days to rebut purported new evidence is devoid of prejudice to 

the plan. Denying a reasonable 90 day period to claimants is likely substantially 

prejudicial to the claimant. This is true not only for the internal appeal, but perhaps 

more so later when the administrative file is reviewed by a court. It is imperative that 

claimants be afforded a full opportunity to “make their record.”

II. Claimants should be clearly notified of the date of expiration of their internal 

appeal opportunity and the running of any limitations period for the filing of a 

civil action.

No reasonable person would argue against this proposition. Fairness dictates the 

giving of fundamental information. The date the clock runs out is fundamental. 

ERISA was supposed to be simple enough that a claimant would not feel the need to 

hire an attorney, yet for unrepresented claimants, it is quite likely that they will not 

appreciate the importance of a limitations period, or if they perceived the approach of 

such a deadline would have no idea where to find the information. It would be 

painless for the plans to be required to clearly state the date of limitations periods, and 

the importance of the running of limitations. 

The minimum limitations period to file a civil action should be at least 2 years after 

the internal appeal has concluded. To allow a shorter time is unreasonable and unfair. 

Again, the plans will suffer no meaningful prejudice by allowing a minimum 2 year 

period, yet the claimants will be substantially prejudiced with any shorter period. It 

takes time to find a lawyer experienced in ERISA disability matters, obtain the 

necessary records, evaluate the situation, communicate with interested parties and 

potential witnesses, etc. I have seen many, many circumstances where uninformed 

claimants tried to handle their claims themselves only to end up with an incomplete 

record. The typical claimant has no idea how to properly prepare an internal appeal.

Plans, plan administrators and insurance companies provide scant information, if any 

as to just what is needed to perfect a claim or an appeal, as they take an adversarial 

position from the outset of a claim.
III. The absence of meaningful sanctions against plans, plan administrators and 

insurance companies in ERISA governed disability claims compels regulations 

which facilitate full and fair review. 

Florida law, as contrasted with ERISA, affords meaningful protections to insureds as 

Florida law mandates an award of attorney fees to a successful insured who was 

caused to file a civil action against her own insurance carrier. Fla. Stat. 627.428. 

This statute acts as a powerful incentive to the insurance industry to make correct 

claim decisions. ERISA attorney fee awards are discretionary with the court, often 

resulting in no award despite the claimant having prevailed in the litigation. The 

absence of a mandatory attorney fee award in ERISA matters also causes lawyers to 

decline cases that they would have handled if they were assured of an award of fees if 

successful. I admit to having declined countless small benefit ERISA matters for this 

reason. I know many of my colleagues have done the same.

Just as important is the absence of any extra-contractual sanction for reckless or 

deliberate misconduct in the handling of ERISA disability claims. Again, under 

Florida law, Fla. Stat. 624.155, an insured may invoke a statutory protocol to be able 

to file a civil action based on the failure of the insurance company to act in good faith 

toward the insured with due regard for the insureds’ interests. I can attest to having 

handled a number of non-ERISA matters involving deplorable conduct on the part of 

the insurance company which ultimately concluded with my client recovering not 

only the benefits at issue, but additional compensation paid by the insurance 

company. The availability of statutory sanctions is a very powerful tool to rein in 

insurance company personnel who have become jaded, spiteful and deceitful. 

I appreciate the opportunity to offer some comments on some of the proposed regulations. 

Please feel free to contact me at any time with questions or requests. Thank you.

Sincerely,

/S/ John J. Spiegel

JJS/rs