### The HONORABLE JOHN R. TUNHEIM, United States District Judge 1 

### for the District of Minnesota, sitting by designation. The Honorable Harry F. Barnes, United States District Judge 2 

### for the Western District of Arkansas.



# United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-1855 No. 96-2203

___________ Robert Dodson, * * Appellee, * * Appeals from the United States v. * District Court for the * Western District of Arkansas. Woodmen of the World Life * Insurance Society, * * Appellant. *

___________ Submitted: December 13, 1996 Filed: March 20, 1997

___________ Before WOLLMAN and MURPHY, Circuit Judges, and TUNHEIM, District 1 Judge.

___________ WOLLMAN, Circuit Judge.

Woodmen of the World Life Insurance Society (Woodmen) appeals fro m the district court's orders awarding Robert Dodson disability benefits and 2 attorney fees. We affirm.

### -2- I.

Dodso n was employed by Woodmen as a field representative for mor e than eighteen years. Under his contract with Wo odmen, Dodson was enrolled in a group disability insurance policy (the group policy). In the summer of 1990, Dodson began suffering from various physical ailments, anxiety, and depression, and his work level progressively declined. By letter date d August 24, 1990, Dodson's manager stated that although he "sympathize[d] with [ Dodson's] health problems," Dodson would be terminated if hi s production did not "drastically improve[] immedi ately." Although Dodson's activity increased slightly the following week, he did not work at all the first three weeks in September. Dodson was terminated on September 20 , 1990, and his coverag e under the group policy ended on this date as well.

On Februa ry 15, 1993, Dodson filed a claim for disability under the group policy. Because the group policy provided that claims must be made within one year after the onset of disability, Woodmen denied Dodson’ s claim as untimely.
Dodson then filed this ERISA action, alleging that the group po licy’s
summar y plan description (SPD) was insufficient because it failed t o disclose the time limit for filing and that the time limit was therefore not enforceable against him. The district court agreed, found that Dodson
was disabled before the termination of the group policy, and awarded Dodso n benefits and attorney fees.

II.
Woodmen contends that the district court erred in finding that Dodson was disabled before the termination of the policy on

### Woodmen ass erts that Dodson's alleged disability was related 3 

### to his fear that he might be terminated, apparently implying that this fact would take his disability out of the scope of coverage. Under our reading of the policy, however, all that is required is a showing that Dodson was disa bled prior to the termination of the policy, September 20, 1990, and that the source of stress causing Dodson's disability is irrelevant. -3- September 20, 1990. We review the district court's factual determination of Dodson's disability status for clear error. See Cooper Tire & Rubber Co. v. St. Paul Fire & Marine Ins. Co. , 48 F.3d 365, 369 (8th Cir.), cert. denied , 116 S. Ct. 300 (1995).

As releva nt, the group policy defines "disabled" as "not able to do substantially all the basic duties of the participant's regular work" and "not doing any work for wage or profit." Woodmen argues that Dodson' s allege dly disabling symptoms did not occur until after Dodson wa s terminated. Relying on the testimony of Dodson's treating physician, Dr. Kendal l, and on Dodson's weekly activity reports, the district cour t concluded that Dodson was unable to substantiall y perform the basic duties of his work and thus was disabled prior to his termination on September 20 , 1990.

Dr. Kendall treated Dodson regularly between October of 1989 an d September of 1990. He testified that physical ailments caused Dodson to miss work in the summer of 1990, which in turn c aused Dodson to experience stress and anxiety and to fear he would be termi nated. Dr. Kendall opined that t hese job-related factors, in addition to family problems, cause d Dodson acute depression or anxiety that rendered him mentally disabled and completely unable to work as of September 7, 1990, thirteen days before hi s termination and before coverage under the group policy ended. 3 The district court found that Dodson 's weekly work activity reports, which showed declining activity in July and August of 1990

### -4-

and virtually no activity the first three weeks of September, corroborated Dr. Kendall's testimony that Dodson was disabled before the termination of the policy. Woodmen asserts that this finding is erroneous and that the presence of some activity in July and August of 1990 shows that Dodso n maintained his ability to perform work and was t herefore not disabled. We agree with the district court, however, that Dodson's diminishing wor k activity level corroborates Dr. Kendall's testim ony that Dodson was unable to perfor m substantially all the basic duties of his job before th e termination of coverage on September 20, 1990.

Woodmen contends that the district court erred in discountin g testimony of Woodmen' s medical director that Dodson was not disabled when he was terminated. We have held that opinions o f a reviewing physician in
an ERISA case are entitled to less deference than those of a treatin g physicia n. See Donaho v. FMC Corp. , 74 F.3d 894, 901 (8th Cir. 1996)
. Accordingly, the dist rict court did not err in finding that the testimony of the medical director was entitled to less deference because he was an employee of Woodmen, had never personally examined Dodson, and had no t actively practiced me dicine since 1961. Based on Dr. Kendall's testimony and the documentary evidence, we cannot say that the district court' s conclusion that Dodson was disabled before the termination of the policy is clearly erroneous.

III. Woodmen c ontends that the group policy's time limit for filing bars Dodso n's claim for benefits. The omission from the SPD of informatio n regarding the time limit for filing violated ERISA, for ERISA requires tha t SPDs co ntain information regarding "circumstances which may result i n disqualification, ineligibility,

### -5-

or den ial or loss of benefits" and "the procedures to be followed i n presenting claims for benefits under the plan." 29 U.S.C. § 1022(b)
. Woo dmen concedes that the SPD did not contain information regarding th e time limit for filing claims, but contends that because Dodson did not rel y on the omitted inform ation the time limit should not be waived as applied to him.

A showing of reliance or prejudice must be shown to entitle a claimant to relief based on a faulty SPD. See Maxa v. John Alden Life Ins
. Co. , 972 F.2d 980, 984 (8th Cir. 1992); Andersonv. Alpha Portland Indus., Inc. , 836 F.2d 1512, 1520 (8th Cir. 1988). The facts in this case sho w that Dods on was prejudiced by the omission of the time limit for filin g from the SPD. He was disabled in September of 1 990 and had one year under the policy to file for benefits. He became aware of the group policy in June of 1991 and thus had three months -- until September of 1991 -- i n which he could have t imely filed had he known of the time limit. The SPD
was t he only document describing the group policy that Dodson had eve r received. Dodson testified that he read the SPD in June of 1991 but could not "get anything out of" it and that "there was . . . no evidence of any deadlines or claims to be filed or anything like that." Had the SP D informe d Dodson that the period for claiming benefits would expire i n September of 1991, he would have had the opportunity to timely file o r otherwise preserve his benefits. Cf. Branch v. G. Bernd Co. , 955 F.2 d 157 4, 1579 n.2 (11th Cir. 1992) (evidence that beneficiary received an d read summary and failed to take timely action ba sed on belief there was no tim e limit would support beneficiary's claim for relief based on fault y summary).

### -6- We re ject Woodmen's contention that the time limit applied to ba r Dodson's claim becaus e Dodson is an "expert" and should have known of the allegedly standard year-long filing period. ERISA requires that SPDs be "underst[andable] by the average Plan participant, and . . . sufficiently
accu rate and comprehensive to reasonably apprise such participants an d beneficiaries of thei r rights and obligations under the plan." 29 U.S.C. § 1022(a)(1). There is no provision excluding i nsurance salesmen from the pur view of ERISA protection. Moreover, Dodson sold life insurance, no t disability insurance, and we will not assume that he possessed specia l familiarity with stan dard characteristics of disability policies. Absent evidence showing that Dodson actually knew of the time limit in the group policy, he should not be barred from coverage inthe circumstances of this
case.

IV.
Finally, Woodmen argues that the district court erred in awardin g Dodson attorney fees, a decision we review for an abuse of discretion. Se e Maune v. International Bhd. of Elec. Workers , 83 F.3d 959, 963 (8th Cir. 1996). In determining whether to award attorney fees, a court shoul d consider the opposing party's culpability or bad faith, its ability to pay , the deterr ent effect an award would have on others, whether the part y requesting attorney fees sought to benefit all participants an d ben eficiaries or to resolve a significant ERISA legal question, and th e relative merits of the parties' positions. See Lawrence v. Westerhaus , 74 9 F.2d 494, 495-96 (8th Cir. 1984) (per curiam); M aune , 83 F.3d at 963. The distri ct court carefully weighed these factors and found that the y supported an award of fees. We find no abuse of discretion in this ruling
.

### -7- The judgment is affirmed.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.