Author: Cody Allison

by Cody Allison

The Basics of ERISA According to the U.S. Department of Labor

Many people who contact us have never heard the term “ERISA” and do not know how it applies to them.  Many lawyers who have been practicing for years may not know much or anything about ERISA.  In order to make a claim under your long term disability plan pursuant to ERISA, you need a lawyer who is familiar with this area of the law and is able to maximize the benefit you receive.  That is why we are here — call us!

ERISA is a complex law.  The Attorneys at Cody Allison & Associates, PLLC provide experienced representation related to enforcement of ERISA rights.  If you need assistance in learning more about your rights as they pertain to a claim which is governed by ERISA, please call my office office at (615) 234-6000.  You can also e-mail us at  cody@codyallison.com.  We handle cases in many states and would be happy to spend time with you to discuss your claim.  Below is an outline of ERISA as stated on the website for the U.S. Department of Labor.

Question: What is ERISA?

ERISA is a federal law that sets minimum standards for pension plans in private industry.  For example, if an employer maintains a pension plan, ERISA specifies when an employee must be allowed to become a participant, how long they have to work before they have a nonforfeitable interest in their pension, how long a participant can be away from their job before it might affect their benefit, and whether their spouse has a right to part of their pension in the event of their death.  Most of the provisions of ERISA are effective for plan years beginning on or after January 1, 1975.
ERISA does not require any employer to establish a pension plan.  It only requires that those who establish plans must meet certain minimum standards.  The law generally does not specify how much money a participant must be paid as a benefit.

ERISA does the following:

• Requires plans to provide participants with information about the plan including important information about plan features and funding.  The plan must furnish some information regularly and automatically.  Some is available free of charge, some is not.
• Sets minimum standards for participation, vesting, benefit accrual and funding.  The law defines how long a person may be required to work before becoming eligible to participate in a plan, to accumulate benefits, and to have a nonforfeitable right to those benefits.  The law also establishes detailed funding rules that require plan sponsors to provide adequate funding for your plan.
• Requires accountability of plan fiduciaries.  ERISA generally defines a fiduciary as anyone who exercises discretionary authority or control over a plan’s management or assets, including anyone who provides investment advice to the plan.  Fiduciaries who do not follow the principles of conduct may be held responsible for restoring losses to the plan.
• Gives participants the right to sue for benefits and breaches of fiduciary duty.
• Guarantees payment of certain benefits if a defined plan is terminated, through a federally chartered corporation, known as the Pension Benefit Guaranty Corporation.

by Cody Allison

FedEx Office employees / ERISA disability benefits at a glance

by Cody Allison

Vanderbilt Employees / ERISA Long-Term Disability Information

If you live or work in Nashville or the surrounding area, chances are you may be employed by Vanderbilt, one of the largest employers in this area.  Below is information that will be helpful for employess of Vanderbilt.  If you have questions about this or any questions about your long-term disability claim, call us -- we are here to help1

If you work for Vanderbilt University, below is helpful information from

Vanderbilt regarding ERISA long-term disability coverage for their employees.

Coverage

Long-term disability insurance (LTDi) is administered by Unum and is a benefit for faculty and staff that pays 60 percent of your annual base benefits rate, up to a maximum monthly benefit of $33,000, if you ever become disabled and are unable to work for six months or longer. The LTD benefit also includes a 10% monthly contribution to your retirement account if you are a participant in the Vanderbilt University Retirement Plan.

Enrollment

Automatic enrollment in LTDi occurs on the first of the month after your one-year anniversary for faculty and staff and immediately for house staff, so no enrollment is necessary. You may be able to waive the one-year wait if you had group LTDi coverage within 90 days prior to coming to work at Vanderbilt. Complete and submit the Long-Term Disability Certification of Prior Coverage Form within 90 days of your hire date to waive the one-year wait. If approved, full long‐term disability coverage must be effective on your hire date. Any missed LTDi premiums will be collected from future paychecks.

Vanderbilt pays for basic LTDi which covers the first $24,000 of your annual base pay. You pay for full coverage between $24,000 and your annual base pay. You can waive full coverage at any time (above the $24,000 that Vanderbilt pays) on the My VU Benefits website.

How to File a Long-Term Disability Claim

If you expect to be out of work for six months or more you should begin the LTDi application process within 30 days after the disability begins or as soon as possible so that a claim decision can be made in a timely manner. Generally, the application process may take two to three months. There is a six-month period between the onset of the condition constituting a disability and when benefits are payable¹. However, the LTDi application should be submitted within 12 months of the onset of the disability for consideration for this benefit.

To file a claim with Unum, call the Office of Benefits Administration at 615.322.8977. A claim will be set up on your behalf. When the disability carrier is in receipt of the completed application, they will notify you and the Office of Benefits Administration if your claim is approved as eligible for LTDi benefits.

Receiving Long-Term Disability Benefits

What is Provided:

Long-term disability insurance provides two standard payment benefits. Those benefits include:

• an income payment of a percentage of covered monthly earnings exclusive of overtime pay, bonuses and other types of extra compensation, and
• a contribution of 10% of retirement eligible salary to your Vanderbilt University Retirement Plan account(s).

When Benefits Begin:

Benefits begin on the first day following six (6) consecutive months of total disability as defined by the plan and determined by Unum. LTDi payments continue for as long as the disability lasts or up to age 65, whichever occurs first. If disability occurs after age 60, the maximum period of LTDi payments is based upon the following schedule:

Unum Defines Disability When:

• you are limited from performing the material and substantial duties of your regular occupation due to your sickness or injury; and
• you have a 20% or more loss in your indexed monthly earnings due to the same sickness or injury; and
• during the waiting period, you are unable to perform any of the material and substantial duties of your regular occupation.

Use of Leave Accumulations

During the six-month period, you must use all accrued leave available, grandfathered sick time, flexPTO, vacation and/or personal, before going into an unpaid status. In cases of a delayed application for LTDi benefits, the approval may happen after the six-month waiting period ends. Because of this, part of the LTDi payment may be made retroactively given the following considerations:

• If the LTDi payment is approved and flexPTO/leave accumulations have been used, no LTDi payments will be made for the period covered by the flexPTO/leave time.
• If no flexPTO/leave time was available following the six-month leave of absence, the approved LTDi payment will be paid once the six-month elimination period has been satisfied.
• If the LTDi company denies the claim and you have not been out beyond six months (maximum leave available under our policy), and remain under the care of a physician, you can continue the leave for the balance of the six months.
• If the LTDi company denies the claim and you have been out beyond six months, you may be either returned to work or terminated.

NOTE: If an application has been submitted to Unum for LTDi payments, but the approval takes longer than six months, the staff member who has flexPTO/leave time available may continue to remain in a paid status until one of two things occurs: approval/denial is given for the benefit or accruals are exhausted. This is an exception to the use of grandfathered sick time accruals and the maximum leave time available under the Family and Medical Leave Act (FMLA) and Tennessee Maternity Leave Act (TMLA) policy.

Employment Status While on Long-Term Disability

Once disability benefits are approved, the Benefits office will process a Personnel Action Form terminating your employment.

You may consider the following options to gain access to health care:

• You may be eligible for Medicare. TN SHIP (Tennessee State Health Insurance & Assistance Programs) offers free Medicare information and counseling: Call 877.801.0044 (Office hours 8 am – 4 pm).
• The new state health exchanges may be an option to consider. Visit https://www.healthcare.gov/ for more information.
• If you want to continue your Vanderbilt health care benefits, you must complete the COBRA which will be mailed to your home. Your first monthly payment will be due within 45 days of electing COBRA.

Returning to Work

If you return to work as an active, full-time employee for 6 month(s) or more, any recurrence of a disability will be treated as a new disability. A new disability is subject to a new Elimination Period and a new Maximum Duration of Benefits. Please notify the Office of Benefits Administration when you anticipate returning to work at benefits@vanderbilt.edu or 615.322.8977.

You may return to work so long as you have been released by your physician and there is an available position in your department. Long-term disability benefits are a protection of your income. Please refer to your department for the status of a vacant position.

Making Changes to LTDi Coverage

You can waive full coverage at any time (above the $24,000 that Vanderbilt pays) on the My VU Benefits website.

If you have waived Full Long-term Disability and wish to reenroll at a later date, you must submit Evidence of Insurability satisfactory to Unum.

What is Evidence of Insurability?

If you are required to submit Evidence of Insurability, you must:

1. complete and sign a health and medical history form provided by Unum;
2. submit to a medical examination, if requested;
3. provide any additional information and attending physicians’ statements that Unum may require; and
4. furnish all such evidence at Your own expense.

Unum will then determine if you are insurable under the plan.

___________________________________________________________________________________________________________

If you are involved in a long-term disability claim and need a qualified attorney to review your case at no charge, please call the legal professionals at Cody Allison & Associates, PLLC (615) 234-6000. You can also visit our website LTDanswers.com. At Cody Allison & Associates, PLLC we fight denied long-term disability claims everyday. It’s what we do. If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000. We are lawyers based in Nashville, TN; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com.

by Cody Allison

RSD and CRPS Long-Term Disability Claims

When you are preparing to make a long-term disability claim, you may wonder what is covered under your policy.  Of course, there are conventional illnesses and injuries that will prevent you from working and qualify.  However, there are some more unusual conditions that will also qualify.  The main consideration here is your medical treatment and your doctor’s opinion on the disabling nature of the condition.  If you have questions, call us — we are ready to help!

Chronic pain can have a devastating affect on the life of anyone it touches.  RSD (“Reflex Sympathetic Disorder”) /CRPS (“Complex Regional Pain Syndrome”) is a chronic neuro-inflammatory disorder which causes extreme pain.  It is classified as a rare condition by the United States Food and Drug Administration.  This pain disorder is difficult to diagnose and is often seen as “exaggerated” by those not experiencing it first-hand.  RSD/CRPS can affect daily life activities and the ability to work.

At Cody Allison & Associates, we see many denied long-term disability insurance claims related to this disorder.  In many cases we spend a great deal of time going over the client’s medical records to determine if the documentation related to these claims is sufficient.  Many times the insurance company will not thoroughly discuss your condition with your treating doctors, if at all, before denying the claim.  Our job is to make sure that we locate and dissect the documentation that does exist, then contact your doctors to supplement any deficiencies in documentation before the claim advances.   Time is of the essence.  If you are suffering from chronic pain and a long-term disability insurance company doesn’t believe your pain is real, or severe, we can help.  Our team of dedicated legal professionals fight long-term disability insurance companies every day.

If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000. We are based in Nashville, Tennessee; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com.

by Cody Allison

Arbitration in ERISA Cases

More and more contracts seem to be moving toward clauses which require the parties to submit to arbitration rather than taking the matter to court. In the case linked below, the U.S. Court of Appeals for the Ninth Circuit examines the issue of whether or not an arbitration clause in an insurance contract forces the employee to arbitrate all claims or if some claims were excluded from this clause. In this case, Munro v. University of Southern California, the Court examined whether or not an arbitration clause bound employees to settle a dispute in arbitration that was not personal to the employee but rather a dispute brought on behalf of the ERISA plan itself.

As more and more companies move to arbitration clauses, these type of issues will arise. If you need help with your long-term disability claim, call us. We are here to help.

This is the link to the Munro case: https://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/24/17-55550.pdf

by Cody Allison

Meeting LA Dodgers Great, Tommy Lasorda

The great thing about being in Nashville is not only that we can represent folks all over the south in their long-term disability claims, but that we get to meet a lot of great people who come to Nashville for business or pleasure.  Below is the story of one of those meetings.  Keep us in mind if you need help on your case, and remember: you don’t have to be local to Nashville for us to help you!

I wanted to share something on our ERISA long-term disability blog that is outside the scope of the blog but a fun topic for me.  My wife, Melanie, and I had the good fortune recently to meet and watch the Music City Bowl football game with legendary sports figure, Tommy Lasorda.  The former LA Dodgers great was a pleasure to spend time with and told many great stories from his days with the Dodgers and meeting various celebrities and world political leaders over the years.  Mr. Lasorda even enjoyed talking about his days on the Baseball Bunch television show (with Johnny Bench) which I watched as a kid growing up in East Tennessee.

by Cody Allison

Jones v. Aetna / Equitable Considerations

This case has to do with equitable considerations in a denial of coverage under a long-term disability policy.  If your coverage is denied, that may not be the end of your claim.  If your coverage has been denied, contact us — we are here to help.

If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000, or toll free (844) LTD-CODY. We are based in Nashville, Tennessee; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com

____________________________________________________________________________________

United States Court of Appeals, Eighth Circuit.

Lisa Jones Plaintiff – Appellant v. Aetna Life Insurance Company; The Boeing CompanyEmployee Health and Welfare Benefit Plan; Employee Benefit Plans Committee of The Boeing Company; The Boeing Company Defendants – Appellees

No. 16-1714

    Decided: May 08, 2017

Before WOLLMAN, SMITH,1 and BENTON, Circuit Judges.

Lisa E. Jones submitted a claim for disability benefits. Her plan administrator denied it. She sued under the Employee Retirement Income Security Act (ERISA) for denial of benefits and breach of fiduciary duty. The district court dismissed the fiduciary claim as “duplicative” of the denial-of-benefits claim. It then granted summary judgment against Jones on the denial-of-benefits claim. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and remands.

I.

Jones worked for The Boeing Company as a business and planning analyst. She was covered by Boeing’s employee welfare benefit plan. The plan provided short-term (up-to-26-weeks) disability benefits funded by Boeing and administered by Aetna Life Insurance Company. It also provided long-term disability benefits funded and administered by Aetna.

On October 16, 2013, Jones stopped working and submitted a claim for short-term benefits. On October 21, rheumatologist Dr. Francisco J. Garriga submitted an “Attending Physician Statement” with a primary diagnosis of “ankylosing spondylitis” (inflammatory arthritis primarily affecting the spine), and a secondary diagnosis of “migraines.” Dr. Garriga first stated that Jones could not work through November 4. On October 23, Aetna approved her claim for short-term benefits effective October 24. Dr. Garriga then extended Jones’s unable-to-work dates many times. Aetna extended her benefits and required updates from Dr. Garriga. On January 30, 2014, Aetna made what would be its final extension—through February 17.

On February 26, Dr. Garriga extended Jones’s unable-to-work date to April 28. At Aetna’s request, he submitted a “Capabilities and Limitations” worksheet on March 17. It was mostly blank because “no formal testing has been done – would need PT appointment to accurately assess.” On April 11, chiropractor Dr. Brian Dent submitted a “Capabilities and Limitations” worksheet stating that Jones was limited to working two to four hours per day pending flare-ups.

On April 16, Aetna told Jones that her submitted information did not sufficiently document a level of impairment preventing her from working. Aetna requested more information. Aetna then sent Jones’s file to Dr. Kia Swan-Moore for review. Dr. Swan-Moore reviewed the medical records and spoke to Dr. Garriga, who said “there is no physical clinical reason [Jones] cannot work however [Jones] continues to tell him that the pain is so intense she could not concentrate.” Dr. Swan-Moore also tried, unsuccessfully, to contact Dr. Mahendra Gunapooti, a pain management specialist who Jones said had treated her. On April 24, Dr. Swan-Moore concluded, based on the medical records, Jones could work an eight-hour day for the period of February 17 through May 30 (with unlimited sitting, standing, and walking, and with some limits on pushing, pulling, and carrying). On April 28, Aetna essentially restated Dr. Swan-Moore’s conclusions and told Jones her benefits were terminated effective February 17. The same day, Dr. Gunapooti sent records to Aetna. Those records showed that Jones reported chronic pain, was on numerous medications (including painkillers), and received epidurals. In light of Dr. Gunapooti’s records, Dr. Swan-Moore reviewed her determination and tried to contact him (but was again unsuccessful). Dr. Swan-Moore reaffirmed her determination. Aetna reaffirmed its denial.

On July 8, Jones submitted to a functional capacity evaluation by physical therapist Kevin J. Wilhite. He said Jones “demonstrated lifting performance that would place her in the Sedentary Physical Demand Category,” but he was “ultimately Unable to Classify her ability of work over an 8 hour work day due to her inability to complete the aerobic capacity testing” (which he did not conduct “due to safety concerns of using a treadmill with her gait performance and use of the cane”). He said, based on her self-reported pain, he “would not expect her to tolerate any activity over 2 hours,” and noted that “Productive Sedentary work for an 8 hour work day would not be expected based on this date’s performance.” Wilhite did say that Jones “demonstrated inconsistent performance,” including “movement and muscle recruitment patterns that were inconsistent when aware and unaware of observation.” Aetna concluded that Wilhite’s report did not support a disability finding, especially due to Jones’s reported inconsistent performance.

On July 17, Jones appealed the denial of benefits. She submitted Wilhite’s report and a newer “Attending Physician Statement” from Dr. Garriga saying that her inability to work was “ongoing” and she “cannot remain standing for over 2 hrs.” Aetna sent Jones’s medical documentation to Dr. Daniel Gerstenblitt to see if Jones qualified as disabled between February 18 and April 16. Dr. Gerstenblitt tried to call Dr. Garriga seven times, leaving messages that were not returned. Dr. Gerstenblitt stated that Jones “appears to have chronic neck and back pain,” determined that her “functional capacity evaluation was an invalid study and self-limited,” and concluded that “there is absolutely no reason that she is incapable for performing in at least a sedentary position.” Aetna denied Jones’s appeal on October 8. On January 19, 2015, Jones asked Aetna to place in her file a letter from the Social Security Administration granting her disability benefits.

In February 2015, Jones sued Aetna, the “Boeing Employee Health and Welfare Plan,” and the “Employee Benefit Plans Committee, the Boeing Company.” Her amended complaint had two counts. Count I alleged that Aetna denied her short-and long-term disability benefits in violation of 29 U.S.C. § 1132(a)(1)(B). Count II alleged Aetna breached its fiduciary duty to her as a participant by (among other things) failing to obtain medical records, failing to tell her where to send evidence of disability, and using claims examiners with conflicts of interest, all in violation of § 1132(a)(3). The district court dismissed Count II as “duplicative” of Count I, and denied Jones’s motion for discovery on the fiduciary-duty claim. It then granted summary judgment to Aetna on Count I, determining Aetna did not abuse its discretion in denying Jones’s claim. It also granted Aetna’s motion to strike documents Jones attached to her memorandum opposing summary judgment.

II.

Jones argues that the district court erred in dismissing Count II. This court reviews the district court’s dismissal de novo. Wilson v. Ark. Dep’t of Human Servs., 850 F.3d 368, 371 (8th Cir. 2017).

Two of ERISA’s theories of recovery are relevant here. First, under § 1132(a)(1)(B), a plan participant or beneficiary may sue “to recover benefits due to him under the terms of his plan.” Second, under § 1132(a)(3), a participant or beneficiary may sue “to obtain other appropriate equitable relief ․ to enforce any provisions of this subchapter”—including provisions of the subchapter that impose liability on fiduciaries ² that breach their statutory duty to exercise a “prudent man standard of care.” See §§ 1104(a), 1109(a); Varity Corp. v. Howe, 516 U.S. 489, 507-15 (1996).

A.

This court’s cases conflict about whether a participant or beneficiary bringing a § 1132(a)(1)(B) claim “to recover benefits due to him under the terms of his plan” may also bring a § 1132(a)(3) claim to obtain benefits (as “other appropriate equitable relief” for a breach of fiduciary duty by a plan administrator).

In Conley v. Pitney Bowes, 176 F.3d 1044 (8th Cir. 1999), a beneficiary sued under (a)(1)(B) for benefits. He also sued under (a)(3) for breach of fiduciary duty. He “described the alleged fiduciary violations as failure to provide him with proper notice of his opportunity to appeal, failure to maintain a complete administrative record, and failure to conduct a full and impartial investigation of his condition.” Id. at 1047. He “sought equitable relief in the form of a restoration to him of past and future additional long-term disability benefits.” Id. The district court dismissed the (a)(3) claim. This court affirmed, explaining that “where a plaintiff is provided adequate relief by the right to bring a claim for benefits under § 1132(a)(1)(B), the plaintiff does not have a cause of action to seek the same remedy under § 1132(a)(3)(B).” Id. (internal quotation marks omitted). It held that the beneficiary “has a claim for benefits under § 1132(a)(1)(B) and therefore may not seek the same benefits in the form of equitable relief under § 1132(a)(3)(B).” Id.

More recently, in Silva v. Metropolitan Life Insurance Co., 762 F.3d 711 (8th Cir. 2014), a beneficiary sued under (a)(1)(B) for benefits from a valid insurance policy. He also sued under (a)(3), arguing that even if the policy was never validly approved (and thus never took effect), the employer and insurer still owed benefits because of fiduciary misconduct in failing to obtain approval. Id. at 727-28. Both counts sought the same relief—“payment of benefits that were seemingly owed under the Plan [in the amount of] $429,000.” See id. at 724, 728 n.12. The court refused to dismiss the (a)(3) claim, holding the beneficiary “is allowed to assert liability under the two subsections of 29 U.S.C. § 1132 at issue in this case.” Id. at 728.

Silva acknowledged that earlier Eighth Circuit cases suggest that a plan beneficiary cannot bring both (a)(1)(B) and (a)(3) claims. Id. at 726, citing Pilger v. Sweeney, 725 F.3d 922, 927 (8th Cir. 2013). The earlier cases rely on the Supreme Court’s 1996 Varity decision—specifically, its statement that “where Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief normally would not be ‘appropriate.’ ” 516 U.S. at 515. Silva determined that Varity and the earlier Eighth Circuit cases do not “stand for the proposition that [a beneficiary] may only plead one cause of action.” Silva, 762 F.3d at 726. Instead, Varity and the earlier Eighth Circuit cases more narrowly “prohibit duplicate recoveries when a more specific section of the statute, such as § 1132(a)(1)(B), provides a remedy similar to what the plaintiff seeks under the equitable catchall provision, § 1132(a)(3).” Silva, 762 F.3d at 726.

Silva buttressed its interpretation of Varity and the earlier Eighth Circuit cases with “further support” from CIGNA Corp. v. Amara, 563 U.S. 421 (2011). Silva, 762 F.3d at 726. Amara reviewed an order for plan reformation under (a)(1)(B). The Court held that (a)(1)(B) does not authorize that type of relief, but a different statutory basis—(a)(3), which the district court had considered and rejected—does authorize that relief. Amara, 563 U.S. at 438, 442. According to Silva, the Amara “Court addressed the issue in terms of available relief and did not say that plaintiffs would be barred from initially bringing a claim under the § 1132(a)(3) catchall provision simply because they had already brought a claim under the more specific portion of the statute, § 1132(a)(1)(B).” Silva, 762 F.3d at 727.

Silva acknowledged that “this interpretation of Varity may seem to be at odds with earlier Eighth Circuit cases,” but distinguished those earlier cases “based on the stage of litigation the court was reviewing.” Silva, 762 F.3d at 727. The earlier Eighth Circuit cases, Silva said, were all summary judgments, where “a court is better equipped to assess the likelihood for duplicate recovery, analyze the overlap between claims, and determine whether one claim alone will provide the plaintiff with ‘adequate relief.’ ” Id. Silva, on the other hand, was a motion-to-dismiss case, where “it is difficult for a court to discern the intricacies of the plaintiff’s claims to determine if the claims are indeed duplicative, rather than alternative, and determine if one or both could provide adequate relief.” Id.

Silva’s attempt to distinguish previous cases based on the stage of litigation falters because Conley dismissed a § 1132(a)(3) claim on a motion to dismiss, not at summary judgment. Silva did not cite Conley. Neither Silva nor any other case from this court explicitly holds that Conley is no longer good law.

This court must resolve the intracircuit conflict between Conley’s rule—an (a)(1)(B) claimant may not seek relief under (a)(3)—and Silva’s rule—an (a)(1)(B) claimant may seek relief under (a)(3). Generally, in the case of an intracircuit conflict, the earliest opinion controls. Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc); T.L. ex rel. Ingram v. United States, 443 F.3d 956, 960 (8th Cir. 2006). However, “a panel may depart from circuit precedent based on an intervening opinion of the Supreme Court that undermines the prior precedent.” T.L. ex rel. Ingram, 443 F.3d at 960. The Silva panel’s departure from prior precedent followed the intervening Amara opinion that undermined the prior panels’ interpretations of Varity. Indeed, Amara implicitly determined that seeking relief under (a)(1)(B) does not preclude seeking relief under (a)(3). See Amara, 563 U.S. at 438; Moyle v. Liberty Mut. Ret. Benefit Plan, 823 F.3d 948, 960-62 (9th Cir. 2016) (agreeing with Silva’s interpretation of Amara). Although Silva did not recognize Conley, it did properly depart from it based on Amara. Silva controls.

B.

Aetna tries to distinguish Silva by limiting it to its facts, essentially arguing it applies only where the (a)(3) claim asserts that a plan was never validly approved. But Silva’s rule is broader than that: so long as two claims “assert different theories of liability,” plan beneficiaries “may plead both.” Silva, 762 F.3d at 728 & n.12.

Here, Jones asserts different theories of liability. Like Silva, the two counts seek functionally identical relief—“an amount in excess of one million dollars,” the benefits Jones says Aetna denied her. But despite the similarity of the relief, Counts I and II allege distinct theories of liability. Count I asserts that Aetna denied her benefits due under the plan. Count II asserts that Aetna, among other things, used claims examiners with conflicts of interest and denied short-term benefits solely to disqualify long-term claims. Count II’s theory of liability is that Aetna used a claims-handling process that breached its fiduciary duties, not that Aetna denied her benefits due. True, Jones argues that this process caused her to be denied benefits she was due. But Aetna’s alleged liability under (a)(3) flows from the process, not the denial of benefits itself. A plan administrator is not liable under (a)(1)(B) for administering a claims process contrary to its fiduciary obligation to carry out its duties solely for participants and beneficiaries. Even if an administrator made a decision with procedural irregularities that “serious[ly] breach” its duties to its beneficiary, it is not necessarily liable under (a)(1)(B); instead, the serious breach prompts more searching review of the denial-of-benefits claim. See Ingram v. Terminal R.R. Ass’n of St. Louis Pension Plan for Nonschedule Emps., 812 F.3d 628, 631 (8th Cir. 2016); Waldoch v. Medtronic, Inc., 757 F.3d 822, 830 (8th Cir. 2014) (explaining that a “serious breach of the plan trustee’s fiduciary duty to the plan beneficiary” will either “alter the standard of review or affect our review under the abuse-of-discretion standard”).

Despite Aetna’s attempts to characterize the two claims as duplicative because both allege “improper claims processing,” the two claims assert different theories of liability. The district court erred in dismissing Jones’s Count II (a)(3) claim on that basis. Its dismissal of Count II is reversed.³

III.

Jones contends that the district court erred in granting summary judgment on her Count I (a)(1)(B) denial-of-benefits claim. According to her, she is entitled to both short-term and long-term disability benefits under the plan. The parties agree that the Summary Plan Description gives Aetna discretionary authority to interpret the plan. “When a plan grants an administrator this type of discretion, the district court reviews the administrator’s construction of the plan terms for an abuse of discretion.” Silva, 762 F.3d at 717 (internal quotation mark omitted). Under abuse-of-discretion review, “[a]n administrator’s decision is upheld if it is reasonable, that is, supported by substantial evidence”—meaning “more than a scintilla but less than a preponderance.” Id. See also King v. Hartford Life & Accident Ins. Co., 414 F.3d 994, 998-1000 (8th Cir. 2005) (en banc); Tillery v. Hoffman Enclosures, Inc., 280 F.3d 1192, 1199 (8th Cir. 2002). If an administrator also funds the benefits it administers—like Aetna does for Jones’s long-term benefits—the district court “should consider that conflict as a factor” in determining whether the administrator abused its discretion. Silva, 762 F.3d at 718. See also Whitley v. Standard Ins. Co., 815 F.3d 1134, 1140 (8th Cir. 2016). This court reviews de novo the grant of summary judgment, viewing the evidence most favorably to Jones. Silva, 762 F.3d at 718.

A.

In her “Statement of the Issues,” Jones frames her challenge to the district court’s summary judgment grant narrowly: “Whether the trial court erred in granting summary judgment because the trial court failed to consider the administrative record in that Aetna’s own doctor found Jones had a functional impairment in evaluating her disability.” Taking the issue as defined by Jones, she does not show that Aetna’s decision was unreasonable. Yes, Aetna’s reviewing doctor, Dr. Swan-Moore, found that “functional impairment is supported” for February 17 through May 20, 2014. But the functional impairment found by Dr. Swan-Moore was limited: “Based on an 8 hour day; sitting, standing, and walking would be unlimited. She could push, pull, and carry no more than 10 pounds at any time. There are no restrictions to emotional control, focus or concentration as well as cognition.” By the “disabled” definition in the Summary Plan Description, you are not disabled due to a “functional impairment”; rather, you are disabled if an illness “prevents you from performing the material duties of your own occupation or other appropriate work the Company makes available.” Dr. Swan-Moore’s determination that Jones had some functional impairment does not render Aetna’s no-disability determination unreasonable.

B.

Jones makes other arguments, none of which shows that Aetna’s denial of benefits was unreasonable. First, she asserts that Dr. Swan-Moore never considered she suffered from migraines. Jones is incorrect. Dr. Swan-Moore’s review noted twice that Dr. Garriga diagnosed her as suffering from migraines. Dr. Swan-Moore also discussed Jones’s condition with Dr. Garriga, who said “there is no physical clinical reason [Jones] cannot work.” Aetna reasonably relied on Dr. Swan-Moore’s review, which “accurately represent[ed] [Jones’s] medical record and adequately address[ed] the evidence supporting her claim for disability.” Midgett v. Washington Grp. Int’l Long Term Disability Plan, 561 F.3d 887, 898 (8th Cir. 2009). Second, she argues that Aetna’s Summary Plan Description (which the district court used to determine her benefits) has two flaws: (1) it was not authenticated, and (2) there is no way to know whether the underlying plan contradicts the Summary Plan Description. The first premise fails because the plan was authenticated by affidavit. Her second premise fails because courts frequently look to summary plan descriptions in determining benefits. See generally Jobe v. Med. Life Ins. Co., 598 F.3d 478, 481-86 (8th Cir. 2010). It is true that since the summary plan description states that the plan governs in cases of a conflict between the summary and the plan, the plan governs if there is a conflict. See id. at 485-86. But the underlying plan matters only if there is a conflict. Jones presents no evidence of a conflict and does not argue that she requested discovery of the underlying plan. Third, she contends—without citing any evidence—that Aetna denied her short-term benefits in order to avoid having to later pay long-term benefits. Even considering this potential conflict in determining whether Aetna abused its discretion, Jones has not shown that Aetna’s determination was unreasonable.

C.

Jones contends that the district court erred in striking evidence she submitted to oppose summary judgment. “Determinations as to the admissibility of evidence lie within the sound discretion of the district court, and we review those determinations under an abuse of discretion standard, even at summary judgment.” Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 818 (8th Cir. 2010). Jones submitted a “Supplemental Administrative Record,” which included a letter from the Social Security Administration granting disability benefits, a letter from Jones to Aetna asking for inclusion of the SSA letter in the administrative record, and a letter from Aetna acknowledging receipt. Jones sent the letter to Aetna on January 19, 2015—over three months after Aetna denied her appeal.

When applying abuse-of-discretion review, a court reviewing a denial of benefits should not consider information that was not before the plan administrator: “Review of a plan administrator’s discretionary decision must be limited to the administrative record ․” Ingram, 812 F.3d at 634. Since the “Supplemental Administrative Record” materials were not before the plan administrator when it made its discretionary determination, the district court correctly struck those materials.

D.

In her reply brief, Jones makes additional arguments for reversal of summary judgment. This court generally does not consider arguments raised for the first time in a reply brief, although it may if the new arguments supplement those raised in an initial brief. Barham v. Reliance Standard Life Ins. Co., 441 F.3d 581, 584 (8th Cir. 2006). These arguments assert errors not raised in the initial brief. Jones offers no reason for not raising them sooner. This court declines to consider the new arguments. The district court’s grant of summary judgment on Count I is affirmed.

* * * * * * *

The judgment of the district court is affirmed in part, reversed in part, and the case remanded for proceedings consistent with this opinion.

FOOTNOTES

2.   ERISA defines fiduciaries to include any person exercising “discretionary authority or discretionary control respecting management of [a] plan” and any person with “discretionary authority or discretionary responsibility in the administration of [a] plan.” 29 U.S.C. § 1002(21)(A).

3.   Before the district court, Jones moved for discovery to support her Count II claim. The district court denied that motion “in light of its dismissal of Count II.” Since this court reverses the basis for the denial, on remand the district court should reconsider the discovery motion.

BENTON, Circuit Judge.

by Cody Allison

What is the ERISA “Safe Harbor” Provision And Why Should I Care?

Below is an explanation of the “safe harbor” provision under ERISA.  As you will learn in dealing with your claim, there are all sorts of wrinkles in the law as it may apply to your policy or your situation.  This is why it is important to consult with a professional when you are thinking of making a claim.  Contact us — we’re here to help!

The ERISA “safe harbor” provision is covered under 29 C.F.R. 2510.3-1(j).

If a long-term disability plan, or other employee insurance policy, is excluded from ERISA coverage if it meets the criteria under this provision. The criteria include:

1) The employer makes no monetary contribution to the policy;
2) Employee participation in the policy is completely voluntary;
3) The Employer’s only function, without endorsing the policy, is to allow the insurer to publicize the policy to employees, and collect the premiums through payroll deduction;
4) The only consideration the Employer receives is in the form of an administrative fee for the payroll deduction function.

A policy must meet all four (4) criteria in order to be exempted from ERISA coverage. If these criteria are found to exist, the plan can be exempted under ERISA. Why should Employees / Claimants care if their plan can be exempted under the safe harbor provision of ERISA? The answer is because ERISA favors the Employer/inurance company. When attempting to enforce the payment provisions under the policy, it is to the advantage of the Employee / Claimant if the policy can be exempted from ERISA coverage, thus, the Employee / Claimant can argue coverage (payment) under state law.

If you are involved in a long-term disability claim and need a qualified attorney to review your case at no charge, please call the professionals at Cody Allison & Associates, PLLC (615) 234-6000. You can also visit our website LTDanswers.com. At Cody Allison & Associates, PLLC we fight denied long term disability claims everyday. It’s what we do. If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000. We are based in Nashville, Tennessee; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com.

by Cody Allison

Long-Term Disability Future Benefit Buyout

Once a long term disability payment amount is reached, the question of a future benefit buyout may arise.  Sometimes, the insurer or the insured wants to settle the entire claim for a one-time lump sum buyout of all future benefits.  The insured has many questions to consider before doing this.  You need to consult a professional — that’s why were are here.  Call us today.

Does a future benefit buyout make sense for your claim? How much is your buyout worth?

My law firm deals with these two questions weekly. The answers are dependent on the facts of each individual claim. There are many factors to consider, such as:

1) Claimant’s basis of disability;
2) Policy definitions;
3) Mortality considerations;
4) Claimant’s age;
5) Proper calculation of future value and assessment of present value of the policy;
6) reinsurance agreements;
7) interest rates at the time of buyout proposal;
8) Personal financial obligations of the Claimant.

It’s important to remember each buyout situation is different. Just because an insurance company is offering a potential buyout doesn’t necessarily mean that a future benefits buyout is right for you. At Cody Allison & Associates, we understand these are difficult considerations. That’s why we have a team of professionals ready to assist you in assessing your individual situation. Further, we ONLY get paid if we successfully negotiate a buyout on your behalf.

If you are involved in a long-term disability claim and need a qualified attorney to review your case at no charge, please call the professionals at Cody Allison & Associates, PLLC (615) 234-6000. You can also visit our website LTDanswers.com. At Cody Allison & Associates, PLLC we fight denied long term disability claims everyday. It’s what we do. If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000. We are based in Nashville, TN; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com.

by Cody Allison

Fibromyalgia In Long Term Disability Claims

Long-term disability can arise from a variety of reasons.  One of these reasons my be Fibromyalgia.  Below is an explanation of the condition and a warning that making a claim for benefits may be a long and complex process.  If you need help making such a claim, contact us.  We are ready to help.

Fibromyalgia is a real condition which may have a great effect on an individual’s ability to work; however, fibromyalgia claims for ERISA long-term disability benefits are difficult and need extensive documentation.

Symptoms of fibromyalgia include widespread pain and fatigue; however, some tests may not show this.  Fibromyalgia is not like other chronic conditions such Rheumatoid arthritis, Multiple Sclerosis, or degenerative disc disease.  Fibromyalgia does not appear on what are called objective tests, such as MRIs, x-rays, or even blood tests.  It is often difficult condition to diagnose.