January 19, 2016

Office of Regulations and Interpretations

Employee Benefits Security Administration 

Room N–5655

U.S. Department of Labor

200 Constitution Avenue NW, 

Washington, DC 20210

Attention: Claims Procedure Regulation Amendment for Plans 

Providing Disability Benefits - RIN 1210–AB39

Dear Sir or Madam:

My law partner, Peter Casciano and I wish to comment on “Claims Procedure for Plans 

Providing Disability Benefits,” 80 Fed.Reg. 72014 (November 18, 2015). 

The Use of IME’s During The Appeal Process

I appreciate that proposed regulations will give claimants an opportunity to respond to new 

evidence or a newly advanced rationale during the appeal process. This is a proper and 

important regulation to ensure fairness to claimants. Claimants normally have the burden of 

proof and should have an opportunity to review new medical reviewer’s reports as well as an 

opportunity to respond.

However, I am concerned that some Plans may take advantage of this regulation to obtain IMEs 

(Independent Medical Examinations) during the appeal period. In fact this already happens 

occasionally. 

I do not think that it is fair to claimants to face an IME (Independent Medical Examination) for 

the first time during the appeal process and I think the regulations should prohibit that. See 

generally in accord Neiheisel v. AK Steel Corporation, 2005 U.S.Dist.LEXIS 4639 (S.D. Ohio 

February 17, 2005) (during the course of appeals from benefit denials, the ERISA regulations 

allow for "consultation" with health professionals; however, that ruling held examinations after 

termination are outside the bounds of the regulations). See, e.g., Harper v. Reliance Standard 

Life Ins.Co., 2008 U.S.Dist.LEXIS 36788 (N.D.Ill. May 8, 2008) (finding a demand for an FCE 

and then an IME during the post-denial claim appeal was arbitrary and capricious); Kosiba v. 

Merck & Co., 384 F.3d 58 (3d Cir. 2004). 

As the regulations stand now, the Plan Administrator, or its appointee – usually an insurance 

company - can use a medical review to terminate or deny a claimant. Then the claimant has to 

put together medical and vocational evidence to rebut the conclusion of the medical reviewer for 

the Plan. This is a time consuming and expensive process. 
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The Plan can now - and under the proposed regulations - then require a claimant to undergo an 

IME examination during the appeal. As the regulations stand now, the claimant has no 

opportunity to review or respond to the IME. That was and is grossly unfair. The proposed 

regulations will ensure that the claimant both get to see the IME report and have an opportunity 

to respond. 

But that still creates an unfair advantage for the Plan and an unreasonable expense and delay for 

a claimant if the Plan chooses to obtain an IME during the appeal process. The delay is caused 

by the claimant having to wait for results of the IME and then having to put together a rebuttal of

the IME. The expense is the cost to the claimant of obtaining the rebuttal evidence. The unfair 

advantage for the Plan is that allowing the Plan to obtain an IME during the appeal process, the 

regulations are really allowing Plans a second bite at the apple. First a medical reviewer 

recommends denial of the claim and then, after the claimant has rebutted the medical reviewer, if 

the Plan obtains an IME, the IME may again recommend denial of the claim. That subsequent 

denial can be for similar or different reasons than the medical reviewer used. In either case, the 

claimant has the additional burden and expense of having to rebut the IME report. 

If the Plan is going to set up an IME, it should have to do so during an initial review of a 

claimant’s application or during any subsequent review. But the Plan should not be allowed to 

set up an IME during the appeal process. That way the claimant does not face multiple rebuttals. 

The process will go faster and be less expensive for claimants. It is fundamentally unfair to 

claimants to have to spend time and resources rebutting the medical reviewers’ analyses of the 

claim file that led to termination of benefits, and then have the Plan order an IME during 

consideration of the appeal which requires the claimant to spend additional time and resources 

rebutting the IME.. 

In conclusion, the regulations should prohibit this practice. If a Plan wants to get an IME 

examination, it should do so during its review of the claim, and not during an appeal of the denial 

or termination of benefits. 

______________________________

In addition we have read and reviewed comments submitted earlier by attorney Mark DuBofsky. 

I agree with his comments and restate them as our own below.

“Full and Fair Review”

I commend the Department of Labor for issuing proposed regulations that go a long way toward 

closing gaps in the prior regulations, especially in relation to giving claimants an opportunity to 

respond to new evidence or a newly advanced rationale during the claim process. The Notice of 

Proposed Rulemaking cites a number of court rulings, but omitted a critical decision, 

Grossmuller v. Int'l Union, United Auto. Aerospace & Agric. Implement Workers of Am., 

U.A.W., Local 813, 715 F.2d 853, 858 n.5 (3d Cir. 1983), which captured the essence of the "full 

and fair review" requirement by finding: “[T]he persistent core requirements of review intended 

to be full and fair include knowing what evidence the decision-maker relied upon, having an 

opportunity to address the accuracy and reliability of that evidence, and having the decisionmaker consider the evidence presented by both parties prior to reaching and rendering his 
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decision.” 

Recissions and Limited Benefit Conditions

One glaring issue that was overlooked by the regulations is the situation where a policy 

limitation is invoked to limit the duration of benefit payments, such as in cases involving mental 

and nervous disorders or for “self-reported” illnesses. The proposed language regarding treating 

rescissions as adverse benefit determinations should be expanded to encompass any situation 

where a limitation is invoked so that the claimant can immediately appeal. Many insurers defer 

the right to appeal until the date the benefits end, which imposes significant economic hardship 

on claimants who may then be deprived of benefits for several months while appeals proceed.

Contractual Limitations Periods

The limitations problem is another issue on which there should be a regulation, especially after 

the confusion engendered by the Supreme Court’s ruling in Heimeshoff v. Hartford Life and Acc. 

Ins. Co., 134 S.Ct. 604 (2013). That ruling raises the specter of a limitations period expiring 

before the claimant can even appeal and the ruling does not allow for tolling of a limitations 

period during the claim appeal. A regulation may easily be issued amending 29 C.F.R. § 

2560.503-1(j) to provide: A statement that all applicable limitations periods are tolled during the 

claim appeal. The claim administrator must also include in its final denial notification a 

statement setting forth the date calculated by the claim administrator on which the relevant 

limitations period expires.

The Effect of a Favorable Social Security Determination

The proposed requirement that plan administrators/insurers must address their disagreement with 

the treating doctor or with a Social Security determination is significant, but does not go far 

enough. In the multi-state regulatory settlement agreements between Unum and CIGNA and 

state insurance departments (and the U.S. Department of Labor), the insurance companies agreed 

to give deference to favorable Social Security findings. Unum, to its credit, has established an 

elaborate procedure for doing so and documenting a rationale explaining the basis for 

disagreement with the Social Security finding in situations where it has rendered a contrary 

decision. CIGNA, however, has not yet fully implemented procedures for meaningfully giving 

deference to the Social Security finding. The regulation should be expanded to explicitly set 

forth a deferential requirement utilizing the same language as the regulatory settlement 

agreements. The Unum Regulatory Settlement Agreement, for example, states: “[T]he 

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.” 

Consulting versus Treating/Examining Physicians

The Department’s concern about financial bias of medical consultants retained by benefit plans 

can also be more forcefully addressed by imposing a requirement that the medical consultant 
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certify that no more than 20% of their income is derived from reviewing files for insurance 

companies and/or self-funded disability benefit plans. Such a proposal would fulfill two salutary 

goals: 

1) it would assure that the consultants are independent of the insurance companies and thus 

address a concern raised in Black and Decker v. Nord, 538 U.S. 822, 832 (2003)(“Nor do we 

question the Court of Appeals' concern that physicians repeatedly retained by benefits plans may 

have an incentive to make a finding of 'not disabled' in order to save their employers money and 

to preserve their own consulting arrangements." (internal quotations omitted)) that consultants 

may be financially beholden to the insurance companies that retain them; and 

2) it would assure that the consultants be actual practitioners who are familiar with the medical 

conditions that they are addressing and up to date on medical testing and treatment for such 

conditions.

Finally, while the proposed regulations impose a requirement that insurers must furnish a 

rationale for disagreeing with the treating doctor or with the findings of the Social Security 

Administration, the Supreme Court handed the Department of Labor an opportunity to issue a 

more substantive regulation requiring that deference be given to treating doctor opinions. In 

Black & Decker v. Nord, 538 U.S. 822 (2003), the Supreme Court rejected an argument that plan 

administrators should give discretion to opinions rendered by treating doctors, much as the 

Social Security Administration has issued a regulation requiring such deference. 20 C.F.R. § 

404.1527(d). However, the Court stated:

If the Secretary of Labor found it meet [sic] to adopt a treating physician rule by 

regulation, courts would examine that determination with appropriate deference. 

See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 

837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). The Secretary has not chosen that 

course, however, and an amicus brief reflecting the position of the Department of 

Labor opposes adoption of such a rule for disability determinations under plans 

covered by ERISA. See Brief for United States as Amicus Curiae 7-27. 

538 U.S. at 832. 

Hence, there is no reason why the DOL cannot adopt a rule identical to the one used in Social 

Security cases, 20 C.F.R. § 404.1527(c), which provides:

(1) Examining relationship. Generally, we give more weight to the opinion of a 

source who has examined you than to the opinion of a source who has not 

examined you.

(2) Treatment relationship. Generally, we give more weight to opinions from your 

treating sources, since these sources are likely to be the medical professionals 

most able to provide a detailed, longitudinal picture of your medical 

impairment(s) and may bring a unique perspective to the medical evidence that 

cannot be obtained from the objective medical findings alone or from reports of 

individual examinations, such as consultative examinations or brief 

hospitalizations. If we find that a treating source's opinion on the issue(s) of the 
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nature and severity of your impairment(s) is well-supported by medically 

acceptable clinical and laboratory diagnostic techniques and is not inconsistent 

with the other substantial evidence in your case record, we will give it controlling 

weight. When we do not give the treating source's opinion controlling weight, we 

apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well 

as the factors in paragraphs (c)(3) through (c)(6) of this section in determining the 

weight to give the opinion. We will always give good reasons in our notice of 

determination or decision for the weight we give your treating source's opinion.

(i) Length of the treatment relationship and the frequency of examination.

Generally, the longer a treating source has treated you and the more times you 

have been seen by a treating source, the more weight we will give to the source's 

medical opinion. When the treating source has seen you a number of times and 

long enough to have obtained a longitudinal picture of your impairment, we will 

give the source's opinion more weight than we would give it if it were from a

nontreating source.

(ii) Nature and extent of the treatment relationship. Generally, the more 

knowledge a treating source has about your impairment(s) the more weight we 

will give to the source's medical opinion. We will look at the treatment the source 

has provided and at the kinds and extent of examinations and testing the source 

has performed or ordered from specialists and independent laboratories. For 

example, if your ophthalmologist notices that you have complained of neck pain 

during your eye examinations, we will consider his or her opinion with respect to 

your neck pain, but we will give it less weight than that of another physician who 

has treated you for the neck pain. When the treating source has reasonable 

knowledge of your impairment(s), we will give the source's opinion more weight 

than we would give it if it were from a nontreating source.

(3) Supportability. The more a medical source presents relevant evidence to 

support an opinion, particularly medical signs and laboratory findings, the more 

weight we will give that opinion. The better an explanation a source provides for 

an opinion, the more weight we will give that opinion. Furthermore, because 

nonexamining sources have no examining or treating relationship with you, the 

weight we will give their opinions will depend on the degree to which they 

provide supporting explanations for their opinions. We will evaluate the degree to 

which these opinions consider all of the pertinent evidence in your claim, 

including opinions of treating and other examining sources.

(4) Consistency. Generally, the more consistent an opinion is with the record as a 

whole, the more weight we will give to that opinion.

(5) Specialization. We generally give more weight to the opinion of a specialist 

about medical issues related to his or her area of specialty than to the opinion of a 

source who is not a specialist.

(6) Other factors. When we consider how much weight to give to a medical 

opinion, we will also consider any factors you or others bring to our attention, or 

of which we are aware, which tend to support or contradict the opinion. For 

example, the amount of understanding of our disability programs and their 

evidentiary requirements that an acceptable medical source has, regardless of the 

source of that understanding, and the extent to which an acceptable medical 

source is familiar with the other information in your case record are relevant 
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factors that we will consider in deciding the weight to give to a medical opinion.

Given the specific requirements necessary before a treating doctor’s opinion is given deference 

according to the quoted regulation, a similar rule in disability insurance cases, which is simply a 

reflection of common sense, can only enhance the process. 

Sincerely, ,

Elliott Andalman 

Peter Casciano