Postma, Vickie L. v. Paul Revere Life

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-2627 & 99-2652

VICKIE L. POSTMA,

Plaintiff-Appellee,

Cross-Appellant,

v.

PAUL REVERE LIFE INSURANCE COMPANY,

a Massachusetts corporation,

Defendant-Appellant,

Cross-Appellee.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 95 C 6575--Wayne R. Andersen, Judge.

Argued February 9, 2000--Decided August 7, 2000

Before BAUER, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge. Vickie Postma injured her

back while at work for her employer, Computer

Power Group ("CPG"). She thereafter filed a claim

for disability benefits with her insurer, Paul

Revere Insurance Company ("Paul Revere"). Paul

Revere denied her claim for disability benefits

and, when she appealed, continued to deny her

claim despite additional evidence provided by

her. In response to Paul Revere’s repeated

refusal to pay disability benefits, Ms. Postma

filed this action in the district court. The

district court granted summary judgment for Ms.

Postma; Paul Revere appeals that decision. For

the reasons set forth below, we affirm the

decision of the district court, although on

alternative grounds.

I

BACKGROUND

A. Facts

1.

Ms. Postma began working as a computer

consultant for the Computer Power Group in 1989.

As a consultant for CPG, she traveled--by car,

train, and airplane--to the places of business of

her clients. The work supplies she brought to her

clients included boxes of training manuals and

supplies, reference materials, and reports. Her

job involved a combination of both light and

medium lifting: The "light lifting" encompassed

the frequent lifting and carrying of objects

weighing between 10 and 20 pounds, and the

"medium lifting" involved the lifting of

materials weighing between 25 and 50 pounds.

R.29, Ex.21 at 6. At her clients’ work sites, she

sometimes needed to carry these boxes up and down

stairs. Ms. Postma’s job duties also required her

to walk and to stand for significant periods of

time. Some days, she reported, she needed to

stand between 8 and 9 hours.

While at CPG, Ms. Postma enrolled in a long term

disability insurance program provided by Paul

Revere.

2.

Ms. Postma, while traveling to visit a client on

October 2, 1991, boarded a train and injured her

back when she tried to lift her briefcase. She

consulted a chiropractor, but her condition did

not improve. She then visited an orthopedic

surgeon who diagnosed a herniated lumbar disc.

This physician performed surgery, but Ms. Postma

continued to experience pain, and she did not

return to work at CPG.

On April 9, 1992, CPG terminated Ms. Postma. It

had held her position open for the six-month

medical leave period required by company policy

and then, because she had not returned to work,

discharged her.

Ms. Postma then visited a different orthopedic

surgeon, Dr. Gutierrez. He diagnosed a recurrent

herniated lumbar disc and performed a second

surgery. After this surgery, she did not report

feeling pain. On September 9, 1992, Dr. Gutierrez

released Ms. Postma to return to work but placed

restrictions on her work activities. She then

attempted to find a position with a different

employer that involved the same duties as her

position at CPG but that could accommodate her

medical restrictions. Even though she sent over

500 resumes to different companies and

interviewed over 15 times, she did not secure

employment.

In March, Ms. Postma again visited Dr.

Gutierrez; however, this visit stemmed from neck

pain she was experiencing. At that time, he

reported that she was not suffering pain in her

back. He also advised her to return to him on an

"as needed" basis. R.35, Ex.F at 22.

Starting on April 26, 1993, and continuing until

June 11, 1993, Ms. Postma worked for Highland

Park Animal Hospital as a veterinary assistant.

While at the animal hospital, she worked subject

to Dr. Gutierrez’s restrictions. On June 12,

however, she was admitted to a hospital for

reinjuring her initial back injury. After this

date, Ms. Postma’s back injury again prevented

her from returning to work at all.

Later that year, Ms. Postma notified Paul Revere

that she intended to file a claim for disability

benefits. She thereafter submitted to Paul Revere

her medical records, which included Dr.

Gutierrez’s attending physician statement. Dr.

Gutierrez’s statement indicated that Ms. Postma

had been unable to work in her occupation at CPG

from October 1991 to October 1993 (the date of

his statement).

After reviewing Ms. Postma’s file, Paul Revere

denied her claim for disability benefits because

it opined that (1) her injury did not prevent her

from performing her previous occupation’s

important duties, (2) she was not under the

regular care of a physician, and (3) her

termination from CPG ended its obligation to pay

her benefits. She appealed Paul Revere’s initial

decision. In the process, she submitted the

deposition of her manager at CPG, John Kinstler,

which stated that her medical restrictions

prevented her from fulfilling her job duties.

Paul Revere, however, again denied Ms. Postma’s

claim for benefits.

Ms. Postma later received disability benefits

from the Social Security Administration and

settled her worker’s compensation award. Both of

these decisions and the evidence supporting them

were provided to Paul Revere; however, it

continued to deny her claim for benefits.

B. Proceedings in the District Court

Ms. Postma then filed this action against Paul

Revere for breach of contract and for breach of

the implied covenant of good faith and fair

dealing. She requested a declaratory judgment

that Paul Revere must pay her benefits, and she

requested attorney’s fees.

The district court held that Ms. Postma was

entitled to benefits for total disability from

October 2, 1991, (the date of her initial injury)

to April 26, 1993, (the date she started working

at the animal hospital)./1 Also, it stated that

she was under a residual disability from April

26, 1993, to June 11, 1993, while she worked at

the animal hospital. Finally, the court

determined that she was totally disabled again

following June 11, 1993 (the date she reinjured

her back).

II

DISCUSSION

A. Standard of Review

1.

The parties dispute whether Paul Revere’s long

term disability ("LTD") plan is governed by the

Employee Retirement Income Security Act of 1974

("ERISA"), 29 U.S.C. sec. 1000 et seq. Ms. Postma

argues that the insurance policy was not an ERISA

plan and that we therefore should review Paul

Revere’s decision to deny her benefits de novo.

The district court held, however, that the policy

was an ERISA plan.

The district court’s finding that this plan is

an ERISA plan is a finding of fact that is

reversed only if it is clearly erroneous. See

Zavora v. Paul Revere Life Ins. Co., 145 F.3d

1118, 1120 (9th Cir. 1998). We previously have

explained that a welfare plan requires five

elements:

(1) a plan, fund, or program, (2) established or

maintained, (3) by an employer or by an employee

organization, or by both, (4) for the purpose of

providing medical, surgical, hospital care,

sickness, accident, disability, death,

unemployment or vacation benefits, apprenticeship

or other training programs, day care centers,

scholarship funds, prepaid legal services or

severance benefits, (5) to participants or their

beneficiaries.

Ed Miniat, Inc. v. Globe Life Ins. Group, Inc.,

805 F.2d 732, 738 (7th Cir. 1986).

According to the district court, the parties

here dispute only whether the plan was

"established or maintained" by "an employer."

R.52 at 8. An employer establishes or maintains a

plan if it enters a contract with the insurer and

pays its employees’ premiums. See Brundage-

Peterson v. Compcare Health Serv. Ins. Corp., 877

F.2d 509, 511 (7th Cir. 1989). To help determine

whether an insurance plan falls under ERISA, the

Department of Labor’s regulations, through a

"safe harbor" provision, provide a guideline for

when a plan does not fall under ERISA. The

regulation that Ms. Postma claims is applicable

to her case is the following:

(j) Certain group or group-type insurance

programs. For purposes of Title I of the Act and

this chapter, the terms "employee welfare benefit

plan" and "welfare plan" shall not include a

group or group-type insurance program offered by

an insurer to employees or members of an employee

organization, under which

(1) No contributions are made by an employer or

employee organization;

(2) Participation in the program is completely

voluntary for employees or members;

(3) The sole functions of the employer or employee

organization with respect to the program are,

without endorsing the program, to permit the

insurer to publicize the program to employees or

members, to collect premiums through payroll

deductions or dues checkoffs and to remit them to

the insurer; and

(4) The employer or employee organization receives

no consideration in the form of cash or otherwise

in connection with the program, other than

reasonable compensation, excluding any profit,

for administrative services actually rendered in

connection with payroll deductions or dues

checkoffs.

29 C.F.R. sec. 2510.3-1(j). This court has held

that "[a]n employer who creates by contract with

an insurance company a group insurance plan and

designates which employees are eligible to enroll

in it is outside the safe harbor created by the

Department of Labor regulation." Brundage-

Peterson, 877 F.2d at 511. In Brundage-Peterson,

we also explained that, when the employer helps

defray the cost of the employee’s insurance, it

is even clearer that the plan falls outside of

the safe harbor. See id.

The district court determined that the plan at

issue here did not fit within the Department of

Labor regulations’ safe harbor. Although the

employees at CPG originally covered the costs of

the LTD policy, CPG made LTD benefits a standard,

rather than optional, benefit for all employees

in February 1992 and thus began paying the

premiums. The court also explained that, because

CPG purchased the plan and offered it to its

employees and because it started paying the

premiums while Ms. Postma was still an employee

(although on medical leave at the time), CPG

established or maintained the benefit plan. The

court’s finding that CPG maintained its benefit

plan for its employees is not clearly erroneous.

CPG did pay its employees’ premiums while Ms.

Postma was still an employee. Moreover, CPG began

these payments before she made her claim for

benefits to Paul Revere. We note, further, that,

throughout its existence, the disability policy

was part of a broader benefits package maintained

by CPG for its employees. Many aspects of that

plan were financed in whole or in part by CPG.

For purposes of determining whether a benefit

plan is subject to ERISA, its various aspects

ought not be unbundled. See Gaylor v. John

Hancock Mut. Life Ins. Co., 112 F.3d 460, 463

(10th Cir. 1997); Glass v. United of Omaha Life

Ins. Co., 33 F.3d 1341, 1345 (11th Cir. 1994);

Smith v. Jefferson Pilot Life Ins. Co., 14 F.3d

562, 567 (11th Cir. 1994). We note, moreover,

that CPG "performed all administrative functions

associated with the maintenance of the Policy,"

and that, consequently, "CPG employees received

discounts on the policy premiums by virtue of the

fact that they were involved in a group policy

through CPG." R.28 at 4. See New England Mut.

Life Ins. Co. v. Baig, 166 F.3d 1, 4 (1st Cir.

1999) (stating that "finding [an ERISA] plan

requires that the employer have at least some

minimal, ongoing administrative scheme or

practice" (citations and quotation marks

omitted)). Therefore, we uphold the district

court’s finding that the Paul Revere insurance

plan is subject to ERISA.

2.

Having decided that Paul Revere’s LTD plan is

subject to ERISA, we now must decide the

appropriate standard for reviewing Paul Revere’s

decision to deny benefits. The Supreme Court set

forth the applicable basic rule in Firestone Tire

& Rubber Co. v. Bruch, 489 U.S. 101 (1989). In

Firestone, the Court explained that de novo

review of an ERISA plan administrator’s

determination to deny benefits is the default

rule "unless the benefit plan gives the

administrator or fiduciary discretionary

authority to determine eligibility for benefits

or to construe the terms of the plan." Id. at

115. "Where a plan confers discretionary power on

the plan administrator, the deferential

’arbitrary and capricious’ standard governs."

Wilczynski v. Kemper Nat’l Ins. Cos., 178 F.3d

933, 934 (7th Cir. 1999); see also Ross v.

Indiana State Teacher’s Ass’n Ins. Trust, 159

F.3d 1001, 1008-09 (7th Cir. 1998), cert. denied,

119 S. Ct. 113 (1999); Hightshue v. AIG Life Ins.

Co., 135 F.3d 1144, 1147 (7th Cir. 1998).

To determine whether a plan grants its

administrator discretion, we must look to the

language of the plan. See Herzberger v. Standard

Ins. Co., 205 F.3d 327, 329 (7th Cir. 2000);

Trombetta v. Cragin Fed. Bank for Sav. Employee

Stock Ownership Plan, 102 F.3d 1435, 1437-38 (7th

Cir. 1996). Ms. Postma claims that the policy did

not reserve discretion in Paul Revere because the

contract defined "disability" objectively. The

district court, however, determined that the plan

granted Paul Revere discretion. We review the

district court’s determination de novo. See

Hightshue, 135 F.3d at 1147. Because we do not

believe that the plain language of the plan

grants discretion to Paul Revere as its

administrator, we cannot accept the district

court’s determination and, therefore, hold that

the appropriate standard of review is de novo.

According to the plan, for a claimant to show

that she is disabled, she must provide proof that

she is receiving a doctor’s care. The plan states

in relevant part:

Totally disabled from your own occupation or

total disability from your own occupation means:

1. because of injury or sickness, you cannot

perform the important duties of your own

occupation;

2. you are receiving Doctor’s Care. We will waive

this requirement if we receive written proof

acceptable to us that further Doctor’s Care would

be of no benefit to you; and

3. you do not work at all.

R.6, Ex.A at 13 (emphasis added). The district

court concluded that the ability of Paul Revere

to waive the requirement of a doctor’s care, if

it received proof "acceptable to us," granted

Paul Revere discretion to interpret the entire

policy. However, a claimant does not need to

submit proof acceptable to Paul Revere unless she

is seeking a waiver. In this context, the

"acceptable to us" language certainly does not

inform a reasonable reader of the Paul Revere

policy that the administrator has discretion on

the ultimate issue of whether a claimant is

disabled. Indeed, the placement of such language

only in the waiver provision makes such a reading

of the entire disability provision so awkward as

to be implausible. A determination by an insurer

that an element of disability may be waived

differs fundamentally from a finding that the

requirements necessary to qualify for disability

have been satisfied. The waiver provision is

applicable to only one of the three requirements

for a disability. If a claimant satisfies all

three requirements for disability, she does not

even need to seek Paul Revere’s approval for a

waiver. Therefore, because the language granting

discretion is only in the clause pertaining to a

waiver, we must consider this language

insufficient to grant the administrator

discretion.

The district court also noted that the plan

requires a claimant to provide medical evidence

acceptable to Paul Revere to prove eligibility

for insurability. As the plan states, "EVIDENCE OF

INSURABILITY means proof given to us that an employee

is insurable. This proof must be based on medical

information and must be acceptable to us." R.6,

Ex.A at 3. Eligibility for insurance, however,

clearly is distinguishable from eligibility for

benefits. Once the claimant submits proof of

eligibility for insurance and the administrator

determines that she is eligible, the

administrator does not have discretion, based on

that provision, to deny benefits. The two

provisions are completely separate, and we hold

that the discretion to determine eligibility for

insurance does not grant the administrator

discretion to determine eligibility for benefits.

Finally, Paul Revere argues that language in the

plan pertaining to the proof of loss that a

claimant must submit to Paul Revere is sufficient

to grant Paul Revere discretion in determining

whether to grant benefits. The relevant language

states: "Written proof should establish facts

about the claim such as occurrence, nature and

extent of the disability, injury or sickness or

the loss involved." R.6, Ex.A at 39. Also, "[w]e

have the right to require additional written

proof to verify the continuance of any

disability. We may request this additional proof

as often as we feel is necessary, within reason."

Id. at 40. Finally, the plan explains that "[w]e

have the right to require written proof of

financial loss. This includes, but is not limited

to: . . . any other proof we may reasonably

require. . . . Payment of benefits may be

contingent upon receipt of satisfactory proof of

financial loss." Id. at 41.

"Proof of loss" language is standard insurance

contract language. See Herzberger, 205 F.3d at

332. It does not automatically grant discretion;

instead, it is the means by which the claimant

submits a claim to the insurer. As this circuit

recently held, language pertaining to "proof of

loss," without more, is insufficient to confer

discretion. See id. In Herzberger, the two ERISA

plans used language such as "determine," "proof,"

and "satisfactory proof." We held that

the mere fact that a plan requires a

determination of eligibility or entitlement by

the administrator, or requires proof or

satisfactory proof of the applicant’s claim, or

requires both a determination and proof (or

satisfactory proof), does not give the employee

adequate notice that the plan administrator is to

make a judgment largely insulated from judicial

review by reason of being discretionary.

Id. Paul Revere’s LTD plan does not contain any

language, independent of typical policy terms

that require proof of disability, to indicate

that it intended to reserve discretion in itself.

We therefore conclude that the proof of loss

language in this policy does not confer

discretion on Paul Revere.

Because Paul Revere’s insurance plan does not

grant Paul Revere the discretion to determine a

claimant’s eligibility for benefits, we conclude

that the appropriate standard for our review of

Paul Revere’s decision to deny benefits is de

novo.

B. The Disability Claim

The question remains whether Paul Revere

correctly denied Ms. Postma’s application for

disability benefits. The district court,

employing the more deferential arbitrary and

capricious standard of review, refused to uphold

Paul Revere’s decision to deny Ms. Postma

disability benefits. Although we disagree with

the district court’s determination on the

appropriate standard of review, we uphold the

grant of summary judgment for Ms. Postma because

it is clear that, when the appropriate de novo

standard is employed, she has presented

sufficient proof of her disability and,

therefore, that she is entitled to disability

benefits from Paul Revere.

1.

Paul Revere’s LTD policy states that, to be

totally disabled, the claimant must show:

1. because of injury or sickness, you cannot

perform the important duties of your own

occupation;

2. you are receiving Doctor’s Care. We will waive

this requirement if we receive written proof

acceptable to us that further Doctor’s Care would

be of no benefit to you; and

3. you do not work at all.

R.6, Ex.A at 13. Ms. Postma clearly met the

requirements for total disability after she

injured her back: She was unable to work at all

and therefore unable to perform the important

duties of her occupation. Once Dr. Gutierrez

released her to return to work, however, the

provision for total disability no longer applied.

The existence of the work release indicated that,

as of September 9, 1992, Ms. Postma could perform

at least some, although not all, of the duties of

her occupation.

The applicable provision for Ms. Postma then

became the clause for residual disability. The

policy explains the requirements for residual

disability as follows:

Residually disabled or residual disability means,

after a continuous period of disability which

lasts at least as long as your elimination

period[/2]:

1. (A) you are prevented, by the same injury or

sickness which caused your disability, from

performing one or more of the important duties of

your own occupation; or

(B) you work at your own or some other occupation

on less than a full-time basis; and

2. you are receiving Doctor’s Care. We will waive

this requirement if we receive written proof

acceptable to us that further Doctor’s Care would

be of no benefit to you; and

3. you do not earn more than 80% of your prior

earnings.

R.6, Ex.A at 14. Although Paul Revere admits that

Ms. Postma was totally disabled until she

received her work release, it claims that her

work release demonstrates that she was no longer

disabled./3 Ms. Postma did not meet the

requirements for total disability after her work

release, but the question remains whether she met

the requirements for residual disability. As long

as Ms. Postma was continuously disabled--either

totally or residually--between her work release

(September 9, 1992) and the date she reinjured

her back (June 11, 1993), when she again could

not work at all, she is entitled to disability

benefits for the entire time following her

initial back injury.

Ms. Postma may satisfy the first element for

residual disability by showing that she cannot

perform one or more of the important duties of

her occupation at CPG. As a consultant for CPG,

Ms. Postma had traveled by car, train, and

airplane to her clients’ businesses carrying

boxes of supplies. She frequently had to lift

materials weighing between 10 and 20 pounds and

often had to lift materials weighing between 25

and 50 pounds. Her job duties also had required

her to walk and to stand for significant periods

of time. Some days, she reported, she needed to

stand between 8 and 9 hours. The staffing manager

at CPG, John Kinstler, also explained that, as

part of her job responsibilities, Ms. Postma

regularly had to lift objects that weighed more

than 10 pounds, to drive for over 30 minutes, to

kneel, to squat, and to bend. Dr. Gutierrez’s

work release for Ms. Postma listed the activities

that she could not perform, including: not

lifting more than 10 pounds, not driving for more

than 30 minutes, not twisting, not squatting, not

bending, not kneeling, and not doing any other

physical activity that could injure her back.

Kinstler explained that these medical

restrictions prevented Ms. Postma from performing

her job responsibilities./4 Thus, due to her

medical restrictions, we must conclude that Ms.

Postma was unable to perform one or more of the

important duties of her occupation at CPG even

after her work release and even after she began

working at the animal hospital.

After Ms. Postma found employment at the animal

hospital, she worked subject to Dr. Gutierrez’s

medical restrictions. These medical restrictions

again demonstrate that she was prevented by her

back injury from performing one or more of the

important duties of her occupation at CPG. Dr.

Gutierrez’s attending physician statement further

clarified that Ms. Postma was unable to perform

her occupation at CPG from October 1991 (the date

of her initial injury) through October 1993 (the

date of his report after her reinjury).

Therefore, Ms. Postma satisfies the first element

of residual disability beginning on the date of

her work release and continuing until she

reinjured her back.

The next element that Ms. Postma must satisfy is

the requirement that she receive a doctor’s care.

The policy defines doctor’s care as "the regular

and personal care of a Doctor which under

prevailing medical standards, is appropriate for

the condition causing the disability." R.6, Ex.A

at 15. Dr. Gutierrez stated that he provided the

appropriate doctor’s care for Ms. Postma’s back

injury, and, because Paul Revere did not provide

evidence to show that Dr. Gutierrez’s care did

not meet prevailing medical standards, we hold

that she was under a doctor’s care and that she

satisfies this element for disability.

Finally, Ms. Postma must have earned less than

80% of her original income at CPG. While she was

seeking employment after she received her work

release, Ms. Postma clearly made less than 80% of

her prior income because she did not work at all.

Also, after she began working at the animal

hospital, the parties do not dispute that she

received less than 80% of the income she received

while employed as a consultant for CPG. Thus, she

meets the final element of residual disability

under the policy.

Because Ms. Postma can satisfy the plan’s

requirements for residual disability from the

time of her work release on September 9, 1992,

until her reinjury on June 11, 1993, and, because

Paul Revere concedes that she can meet the

elements of total disability from October 2,

1991, to September 9, 1992, and again after June

11, 1993, we hold that Ms. Postma should be

awarded disability benefits.

C. Attorneys’ Fees

Having determined that the plaintiff’s action

was governed by ERISA, the district court

correctly acknowledged that it had discretion to

award attorneys’ fees to the prevailing party.

See 29 U.S.C. sec. 1132(g); see also Trustmark

Life Ins. Co. v. University of Chicago Hosp., 207

F.3d 876, 884 (7th Cir. 2000). We also believe

that the district court was correct in its

determination that, although Ms. Postma did not

prevail on the threshold question of ERISA

preemption, she did prevail on the ultimate

question of whether she was owed disability

payments from Paul Revere. Therefore, she should

be considered the "prevailing party" for the

purpose of awarding attorneys’ fees. There is a

"modest presumption" that a prevailing party is

entitled to her attorneys’ fees; however, "a

court may decline to award fees and costs if it

finds that: (1) the losing party’s position had a

reasonable or solid basis in law and facts; or

(2) special circumstances make an award unjust."

Harris Trust & Sav. Bank v. Provident Life &

Accident Ins. Co., 57 F.3d 608, 617 (7th Cir.

1995) (citations and quotation marks omitted). We

cannot say that the district court abused its

discretion in concluding that Paul Revere’s

denial of benefits was not substantially

justified under the law as applied to the facts

of this case. See Production & Maintenance

Employees’ Local 504 v. Roadmaster Corp., 954

F.2d 1397, 1405 (7th Cir. 1992)./5 Accordingly,

we shall not disturb its judgment in this regard.

Conclusion

For the foregoing reasons, we affirm the

decision of the district court to grant Ms.

Postma’s motion for summary judgment. Ms. Postma

may recover her costs in this court. Ms. Postma

also may recover her attorneys’ fees for this

appeal by filing with the district court a

statement of reasonable attorneys’ fees within 14

days of the issuance of this court’s mandate.

AFFIRMED

/1 The district court, in its initial order,

identified the applicable dates as October 2,

1991, and April 26, 1993. However, in its

subsequent order, without explanation, it used

the dates of October 1, 1991, and April 27, 1993.

Because both the parties and the record indicate

that the dates of October 2, 1991, and April 26,

1993, are the correct dates, we shall use those

dates as the applicable ones.

/2 An elimination period is the length of time a

claimant must wait before benefits begin. Ms.

Postma’s elimination period was 90 days. There is

no dispute that she was continuously disabled for

the 90 days of her elimination period.

/3 Paul Revere also argues that Ms. Postma’s

disability benefits should have ceased as soon as

she was terminated by CPG. However, the policy

clarifies that, as long as a claimant’s

disability continues, she is entitled to

benefits. Because we hold that Ms. Postma was

disabled continuously by her back injury, from

October 1991 until at least the time when she

filed this lawsuit, her benefits continued

despite the fact that she no longer worked for

CPG. If insurance benefits ended as soon as a

claimant stopped working for her original

employer, then the residual disability provision,

which allows the disabled claimant to work at a

different job and still receive benefits, would

be superfluous.

/4 Although Kinstler stated that CPG would have been

willing to provide accommodations for Ms.

Postma’s medical restrictions, he also admitted

that CPG would need to consult with the clients

Ms. Postma would work with before it could commit

to accommodating her restrictions because her

accommodations would require assistance from her

clients. He also conceded that some clients might

not want to assist CPG and Ms. Postma in

accommodating her.

/5 The district court also acknowledged that our

circuit on occasion has employed another test:

(1) the degree of the offending parties’

culpability or bad faith; (2) the degree of the

ability of the offending parties to satisfy

personally an award of attorneys’ fees; (3)

whether or not an award of attorneys’ fees would

deter other persons acting under similar

circumstances; (4) the amount of benefit

conferred on members of the [benefits] plan as a

whole; and (5) the relative merits of the

parties’ positions.

Harris Trust, 57 F.3d at 616 n.5.