“See Attached:” Andy Rooney and The Two Most Important Words in Completing LTD Forms.

Andy Rooney  used to have a regular humor segment on 60 Mintues complaining about minor annoyances of daily life.    I was never a fan: if you have airtime, why not complain humorously about the major issues with daily life rather than the size of paper towels, as he did in the link provided?   One segment in particular stuck with me as an example of how trivial his complaints were: the whole segment was about forms that left too little space to fill in the information requested.

Once I started helping Connecticut long-term disability claimants submit initial long-term disability claims, however, I realized that insurance companies can use small spaces on forms for their own advantage.  In prior articles,  here and here, I’ve discuss the games insurance companies play in constructing their forms – creating a form that could lead to someone in a coma being found capable of performing a sedentary job - and ways to avoid the insurance company’s trap.  The too-little-space problem Andy Rooney identified is easier to deal with that this - we can solve it with   two words: See Attached.

Most long-term disability claims are started with two forms:  the claimant’s statement you complete, and the attending physician’s statement completed by your doctor.  The forms request similar information: the impairment you suffer from; your job duties; and how your impairments prevent you from performing your job.  

The topics can be complex and require a lot of information to explain.  But, the forms only give you a little space to explain them.  Here are the relevant sections from one company’s form:

This is not a lot of room to describe the effect of a complex condition on a demanding job.  You could write in little letters, but there is a better way:  simply write “See attached” in the space, and then attached a document were you can describe everything in detail.   Make sure you tell your doctor that he can put down “see attached” as well.  The best things the doctor can attach are actual office visit notes, or tests results (MRI’s showing severe spinal stenosis or a neuropsychological exam documenting cognitive impairments), that demonstrate the vocational impairments resulting from your physical condition.

The too-small-space problem arises in long-term disability benefit appeals as well, as the insurer will commonly require your doctors to prepare attending physician statements for the appeal.  The forms are more important in initial LTD applications, though, because it might be your only chance to explain your condition and how it keeps you from doing your job.  Even though you now know about the "See Attached" trick, using a lawyer who regularly works on initial LTD applications, and who knows through an active LTD benefit appeals practice  what insurance companies need to see to establish disability from giving medical condition, can make it more likely that your first application will be successful.  

Tricks Insurance Companies Play Part 2: When the Insurance Company Asks the Doctor for the Wrong Information

Previously, I wrote about one trick insurance companies use to deny benefits, when they deceptively structure the attending physician’s form so the insurance company can claim it shows the patient can do the job, even though the doctor intended to state that the patient could not perform the job.  A doctor could fill out the form properly for a bed-ridden paraplegic but the insurer could interpret it as allowing the person to perform a sedentary job. 

I recently saw another insurance company trick in a LTD ERISA appeal for a Westchester County client who was disabled by migraines. The basis for the denial was the same as I’ve seen in almost every case of disability based on migraines: the medical records did not address the frequency, duration and intensity of the headaches, so there was no proof the migraines were disabling.  Given that this was the basis for the denial, in reviewing the claim file, I expected to see the insurer asking the doctors about the frequency, duration and intensity of the headaches.  

What I found instead was that even though the insurer had sent detailed questionnaires to the three treating physicians, none of the questionnaires asked about the frequency, duration or intensity of the headaches suffered by my client!  Why didn’t the insurer ask for the frequency, duration and intensity information that it claimed was crucial to establishing disability?  Do you think that the insurance company didn’t want to get the right information from the doctors, and deliberately asked for the wrong information so it could deny benefits?  

I will be able to help this migraine disability client. I have ways to establish frequency, duration and intensity, and to prove that the migraines prevent the person from performing their job.  Also, since most of my ERISA appeal practice is in in Connecticut and Westchester County, I have worked with her doctors before, so I know we can work together to prove the client’s disability from migraines.  This is an example of two things to remember when choosing a LTD appeal lawyer for any type of condition:

• Choose a lawyer who has substantial of experience with ERISA LTD appeals so he or she knows how to prove disability with your particular condition; and

• Choose a local lawyer who may have dealt with your doctors before.  Knowing how a specific doctor works, what they want to see from the lawyer, and how responsive they are quite helpful in winning an ERISA LTD appeal. 

Proving Disability in Internal ERISA Benefit Appeals: Why It Is Easy to Get it Wrong

In my ERISA benefits practice, I often have the opportunity to review the work other lawyers have done in the initial internal appeal with the insurance company.  For more background on why the internal appeal process is so important, you can see this article from my firm’s website.  Most often, the lawyers have not done many ERISA internal appeals.  They may think that long-term disability appeals are not really that different from other areas where inability to do a job is an issue, such as a Social Security Disability Income denial or workers’ compensation.      

• In one way, they are right: in each area, the claimant must show he or she can’t work, so the burden of proof is on the claimant.

BUT

• What is required to meet the burden of proof in the three areas is fundamentally different.  Evidence that can win a workers’ compensation or SSDI case can be a loser in a disability insurance case.  

In both Social Security and workers’ compensation cases, once a claimant submits a certain amount of evidence, the effective burden of proof is shifted:   

• Social security disability income appeals have a “treating physician rule:” once the claimant submits an opinion of disability from a treating physician supported by medical evidence, the claimant generally wins.

• In workers compensation, a doctor’s statement that contains the magic words “I state with a reasonable degree of medical certainty,” that a disability resulted from a workplace injury may be enough to force the insurance company to prove that the opinion is wrong.

Of course, the doctors’ statements in these areas have to be supported by the medical records, but in many cases the treating doctor’s statement can be short and conclusory.

Claimants in ERISA cases don’t get the benefit of these presumptions: while a plan has to have some reason to reject a treating physician’s opinion, there is no treating physician rule that requires deference.  A short doctor’s letter that can win a workers’ compensation case can probably be safely ignored by an ERISA plan that has a contrary opinion from a doctor who has only reviewed medical records and has not examined the patient.  

Two aspects of ERISA make it more difficult to establish disability than under SSDI or workers’ compensation:    

• The first is the basic ERISA principle that the language of the plan documents governs almost everything.  To a great degree, the plans get to establish what a claimant must show to be entitled to benefits, and understandably, they do not make it easy.

  

• The second is the standard by which a court is likely to review the benefit denial.  Due again to language in the plan, almost every benefit denial reviewed by a court is going to be arbitrary and capricious review, which means the court is supposed to uphold the denial if there is any rational basis for the decision. So, what happens when a lawyer submits a doctors’ letter that could win a workers’ compensation case?  The court is likely to hold that a plan that relies on a medical file review paid for by the plan rather than a short letter stating the doctor’s opinion has a rational basis for the denial, and the claimant loses.   

In many states, it can be hard to find a lawyer who is experienced with appealing long-term disability denials, either for private insurance or group plans governed by ERISA.   In Connecticut where I practice, there are only a few experienced long-term disability insurance attorneys.  But, finding an attorney who knows how different it is to prove an inability to work in an ERISA case can make the difference between winning and losing.

What Do We Submit for an Internal Appeal With the Insurance Company?

In this blog, I have frequently discussed the importance of the internal appeal with the insurance company.  I haven't discussed what we commonly submit for internal appeals, though.  I recently posted an article to my new firm's website discussing what I commonly put in the letter, and the reports and medical records I submit with the letter.  As you can see, a lot goes into an effective appeal of a long-term disability denial.

In Introduction to Why the Internal Appeal is Important in ERISA Benefit Denials

As you may know, I moved my Connecticut LTD and ERISA practice last month to Zeldes, Needle & Cooper in Bridgeport, I've been working on posting articles to the new firm's web site.  Today I posted an article discussing the administrative appeal process and why it is important.  It is a good general introduction to the issues involved.  As the article notes, the insurance company won't tell you one of the most important things about the internal appeal process: that you probably won't be able to submit any new information in litigation that you haven't submitted during the appeal process. That is why is can be important to have an attorney during the appeal process to make sure you have the best chance to get the result you want in the appeal, and to put you in the best position to win in court if you don't win the internal appeal.

Even Ex-NFL Players Have Trouble Getting Disability Benefits for Post-Concussion Impairments

The New York Times has an article this week about the lawsuit that Haruki Nakamura brought against Lloyd’s of London for wrongfully denying disability insurance after his doctors, and the NFL, told him he could no longer play in the NFL.  While my clients are more likely to sit at a desk and work at a computer all day than tackle an NFL running back, it is remarkable to me in reading the complaint that Mr. Nakamura confronted the same issues as my clients.  The post would be far too long if I addressed all the similarities, but I will note a couple of points:

• Mr. Nakamura alleges that Lloyd’s imposed “virtually impossible” procedures, making repeated requests for the same documents, losing documents, and distorting medical records.  If the procedures were virtually impossible to fulfill for someone who made a million dollars a year and had a personal assistant to help deal with the insurance company , imagine how easy it is for an insurance company to impose absolutely impossible requirements on someone who made $75,000 a year and has a working spouse.  As I tell my clients, the courts are remarkably tolerant of insurers requiring endless recertification, updated medical records, and independent medical examinations.  Even if we think they are grossly unfair, we have to do the best we can to comply, as the insurance company will use any failure to comply as a basis to reject the claim, and we can’t count on a federal judge being sympathetic to the procedural difficulty of complying with the request.
• The complaint shows how hard it can be to prove post-concussion syndrome and other conditions that result in cognitive impairments.  As regular readers of this blog know, I have frequently discussed how it is difficult to get insurers to accept cognitive impairments without a neuropsychological exam.  Mr. Nakamura didn’t get such an exam, and it was one basis for the denial.  Neuropsych exams are not always a help, though.  They are a rough measure that may not show the slight decreases in cognitive ability that can make it impossible to perform a cognitively demanding job like a bond trader, so Mr. Nakamura may have decided not to risk a neuropsych that was not helpful.  But, it shows how important it is to have a comprehensive strategy to demonstrate disabling cognitive issues.  I always make sure to emphasize and prove any psychological or physical impairments to make up for any difficulties in proving the cognitive side.
• The case also shows how willing insurers are to ignore the opinions of highly-credentialed treating physicians.  Mr. Nakamura’s doctor was “an internationally renowned expert in sports-related concussion” who had established the first and largest research and clinical program on the issue.  The doctor on whom the insurer based the denial is employed by “Triangle Forensic Neuropsychiatry,”  and has no particular expertise in concussions 
• Due to the strong medical community in Fairfield County and Southern Connecticut available to support LTD disability appeals, I am fortunate to work with some of the most prominent doctors in their fields.  The insurance companies, however, are happy to rely on anyone with the right initials after their name.  One insurance company rejected the opinion of a national authority on multiple sclerosis who was a full professor at Yale in favor of an opinion from a family medicine doctor whose only clinical experience was ten years of work in a rural Maine medical clinic.  Again, the way to deal with this is a comprehensive strategy to create an overwhelming case for disability.

The lesson of the Nakamura case is that insurers are equal-opportunity abusers, happy to abuse the rich and famous as well as poor and the middle class.  Make sure you are not alone on this journey by finding an experienced, sympathetic and aggressive lawyer who can create the comprehensive strategy necessary to succeed in long term disability appeals and long term disability litigation.

Residential Treatment for Eating Disorders: What Does Your Doctor Need to Say?

Slate.com had a great article recently by Katy Waldman talking about anorexia, and the potentially damaging narratives that even those in recovery from anorexia tell themselves.  As she writes: "[t]he anorexic impulse to lyricize one’s illness is a prescription for estrangement, for controlling and muffling the messy truths about who we are."

In the article, she calls for treatment that addresses the physical issues resulting from eating disorder: nutrition and weight restoration, rather than trying "to crack some psychological code—to unearth the mysterious psychic forces driving the illness "  

Whatever type of treatment a patient and his or her doctors want to pursue, obtaining insurance coverage for treatment of anorexia, bulimia and other eating disorders is challenging.  As with many issues with ERISA health benefits and group health insurance, what you think should work frequently doesn't.

In Connecticut, residential treatment of eating disorders, substance abuse and psychiatric illness has been difficult because there were no residential treatment programs for adolescents in the area.  There is now residential treatment for adolescents in Fairfield County, at Silver Hill Hospital, which I discussed in a prior blog post.   But, I believe we will still have many insurance companies denying coverage for residential treatment, even with a local provider.

So, what does your doctor need to say to get coverage for residential treatment of eating disorders, whether it is the "crack the psychological code" treatment or treatment addressed directly to the physical issues of eating disorders that Katy Waldman endorses?

• Typically, a doctor will tell you that:

Residential treatment is the best way for your daughter to recover

That should do it, right?  Nope.  

• What if your doctor tells you:

Residential treatment is the only way for your daughter to recover

That's got to do it, doesn't it?  The purpose of the policy is to provide treatment to cure problems, so if the treatment is medically necessary for the patient to get better, doesn't the insurance company have to pay for it?  

Still nope.  Under most health insurance policies, to get residential treatment for eating disorders, or for substance abuse treatment, or most any psychiatric illness, the doctor has to tell you:

Residential treatment is the only only way to protect your daughter from a serious risk of imminent death or serious injury to herself or others. 

I will post more in in the future about what specifically you need to do to make the best case for residential treatment for eating disorders, substance abuse treatment or other psychiatric issues, including the arcane treatment protocols that you have to follow to get benefits.  But, reviewing the policy and the incorporated treatment protocols before the claim is submitted will give you the best chance to get insurance coverage for residential treatment of eating disorders in Connecticut or in another state.   

An experienced health benefits attorney can help you get coverage for the treatment that you and your doctors think is best for treatment of eating disorders or other residential treatment.  

Residential Treatment for Eating Disorders Now Available in Connecticut

Patients and their parents in Connecticut have frequently encountered great difficultly in obtaining the residential treatment for eating disorders recommended by their doctors.   In the past, residential treatment of eating disorders was only available out of state.  Insurers fought hard to not cover out-of-state treatment, and I think the expense of out-of-state treatment was one reason for that.  I will discuss coverage for eating disorders in a upcoming post, and grounds for appealing a denial of benefits for residential treatment of eating disorders.  

Connecticut now has a residential treatment program for eating disorders.  Silver Hill Hospital in New Canaan recently started offering residential treatment.  I hope with in-state treatment available, it may be a little easier to obtain coverage for residential treatment of eating disorders in Connecticut.  It will still be a fight, but maybe we will start a little closer to the goal.  

Deceptive Attending Physician’s Statements: How to Fight the Form

What your treating physicians say about your condition and disabilities is the most important part of the claims process.  If you were an insurance company, wouldn’t it be great if it could come up with a way where it is almost impossible for the doctor to find that you are disabled?  Well, some insurers have done that with the form that asks the doctor to list your diagnosis, treatment, and you capacity to perform work-related activities like standing, walking, and lifting.  Different insurers have different names for the statements: 

• Sun Life and Aetna call it an Attending Physician’s Statement;
• Cigna calls it a Physician’s Statement of Disability;  
• Sedgwick calls is a Physician’s Certificate for Disability Benefits.

Some forms are fair, and others are intended to keep your doctor from certifying you as disabled so long as you can occasionally sit, stand or walk.   

Here’s a link to an unfair form that Aetna uses for some cases.  The crucial part of the form is in the middle, asking the doctor to state whether the patient's ability to sit, walk, stand, etcetera, is "Occasional," "Frequent," or "Constant."

How does this form convert a physician’s certification of disability into a certification of no disability?

• The form uses broad categories: The most restrictive category available is “Occasional,” for activities the claimant can perform from .5 to 2.5 hours a day.  There is no category for “Never.”  So, let’s say you doctor thinks you can stand, sit or walk for half an hour each, or a total of 1.5 hours in a day. So he fills in “O” for “Occasionally” for the sit, stand and walk categories.  The doctor understandably believes he has certified that you cannot do a sedentary job.

• The insurer using the top of the broad range: Despite your doctor’s intentions, the insurer can read this form to establish that your doctor believes you can do a sedentary job.  “Occasional” is defined in the form as up to 2.5 hours day.  So, adding together the maximum hours for the three categories gives a 7.5 hour a day work capacity. The insurer can therefore use this form to conclude that your doctor believes you can perform a sedentary job requiring sitting, standing and walking, even though your doctor thinks you can only do these things for 1.5 hours! 

So, what do you do?  How can you fight the form?  In my Connecticut LTD denial practice:

• I use my own form if the insurers’ forms are deceptive, breaking down the first category into “Never,” “Less than 5%,” “5-20%” and “20-33%” so that the insurer won’t be able to convert a doctor’s certification of an 1.5 of work capacity into a full day’s work, or

• I have the doctors prepare a narrative discussing more specifically what my client can and can’t do as it relates to the specific job duties of the position at issue, without being locked into the categories the insurer uses on its forms.  

Deceptive attending physician’s statement forms are one of the reasons it can be difficult to represent yourself, whether in an appeal of a LTD denial or an initial application for short-term disability or long-term disability.  The best way to fight these tactics is to have an experienced long-term disability insurance attorney in your corner who knows the games insurer’s play, and how to fight them.  

The Disability Insurer Is Calling You a Liar: Objective Evidence of Subjective Conditions

The most common reason stated by insurance companies for denying my clients benefits is there is no objective evidence of the client's impairments.  By this they mean that there are no medical or vocational test results assessing the extent the client's impairments affect her ability to work.

Of course, the medical records commonly include many statements by the claimant about her pain, cognitive difficulties, trouble walking, sitting for extended periods, or using a keyboard.  The insurers' hardly ever give any weight to these statements, claiming that they are mere subjective complaints; that is, they are not in themselves proof that the person is experiencing what she says she is experiencing.    The insurers are in essence calling the patients liars: the insurer clams the patient is telling untrue things to their doctors.  This happens frequently with chronic back pain, migraine headaches, fatigue, and early stage Parkinson's and multiple sclerosis.  

Why would a patient lie to her doctor?  The insurers never say, but there are only two possibilities:  

• the patients are suffering from a delusion, that they are not really experiencing the symptoms they are feeling, that the condition is a "somatic disorder" or "psychosomatic disorder"," which is what medical records say then a doctor believes the reported symptoms are the product of a delusion rather than an organic illness; or 

• the patients are lying in order to qualify for disability benefits, making up symptoms they are not real experiencing.  In the medical literature, lying about symptoms to get a financial benefit is called reporting symptoms for "secondary gain."

Discounting self-report of pain is fine if there is evidence that the claimant is lying or delusional, such as surveillance in the record, or activities reported in the medical records, that are inconsistent with the limitations the patient is claiming, or the patient claims to have cancer but no cancer can be detected.  

But in the absence of evidence of lying or a mental illness, why should insurers be allowed to call claimants liars just because a medical test doesn't show their chronic pain or cognitive impairment?   When objective evidence can't exist, courts in the past decade have done a pretty good job not allowing insurers to deny benefits based solely the fact the impairment is based on subjective complaints.  Kelly v. Reliance Std. Life Ins. Co., 2011 U.S. Dist. LEXIS 147133, 2011 WL 6756932 (D.N.J. Dec. 21, 2011) ("The defendants are not free to ignore the plaintiff's chronic and severe pain under the apparent theory that MRIs or EMGs must demonstrate some structural deformity for a person to be disabled because of back pain. Unfortunately for all parties involved, back pain, even severe pain, is not so simple.")

But, courts have rarely directly addressed the issue that insurers are really calling claimants liars when the insurers don't credit subjective reports of pain.  Remember the context in which these statements are made: in a doctor's office, where the patient is seeking diagnosis and treatment for serious conditions.  A patient who lies in a medical office risks painful, dangerous and expensive treatments to address an imaginary malady.  And frequently, the patient reported the pain at a time when there is no motivation to lie: the statements may have been  made before any application for disability benefits is filed; or when benefits are being paid routinely and the the claimant would have no reason to think their benefits were at risk.  

The rules that govern what evidence can be presented in Federal Court even acknowledge that statements made to a medical professional for purposes of diagnosis and treatment have "intrinsic indicia of reliability," which is judge talk meaning that the statements are likely enough to be true that they should be admitted into evidence.  Therefore, statements made to obtain medical treatment are an exception to the hearsay rule that out-of-court statements cannot be admitted into evidence to show that what was said was true.    Some courts have accepted this analogy.  Lasser v. Reliance Std. Life Ins. Co., 146 F. Supp. 2d 619, 640 (D.N.J. 2001) (“it was in Dr. Lasser's interests accurately to inform him of his daily activities in order to obtain an effective program of rehabilitation. Indeed, it is based on this indicium of reliability that such out-of-court statements by Dr. Lasser would be admissible under the Federal Rules of Evidence.”).

In my Connecticut disability insurance practice, I will keep arguing that an insurer can't dismiss a claimant's pain unless there is a factual basis for it.  The insurance company's insist on objective evidence of pain; courts should start requiring long-term disability insurers to produce "objective evidence" that the patient is lying or delusional before calling the claimant a liar.  We'll see if Connecticut federal courts will start turning the tables and require  insurers to show "objective evidence" that the claimant is not telling the truth in reviewing decisions on long-term disability insurance appeals.  

What is ERISA: Retirement Benefits & Fiduciary Duties

ERISA was enacted primarily to regulate something that we would all like to have, but hardly exists anymore: the private-sector traditional pension plan.  These plans promise retirees a certain payment every month for the rest of their life, and sometimes a reduced for the life of a spouse.  These are called “defined benefit plans” under ERISA, since the plan promises to pay definite amount every month.  No matter what happens with the market, the amount you get doesn’t change. 

In the other type of retirement plan, the plan promises that a certain amount of money will go into the plan each year, and the amount you get each month when you retire depends on what happens with the stock market.  These are called “defined contribution plans.”  These are the 401k plans and cash balance plans that most of us have now.  In the defined benefit plan, the risk of market changes rests with the employer.  With the defined contribution plan, the risk of market changes rests on the retiree. 

As discussed in my first post in the “What is ERISA?” series of post, the primary purpose of ERISA was to protect the traditional defined benefit pension plan. Most employers have moved to defined contribution plan, ERISA applies to these plans, too. 

In the prior post on ERISA and welfare benefits, I discussed some of the differences between the way ERISA treats welfare benefits versus retirement benefits: retirement benefits are vested prior to you actually receiving the benefit; and ERISA imposes substantive requirements on retirement plans while imposing few on welfare benefit plans.

The most significant effect of ERISA on retirement plans is that it imposes fiduciary duties on the people who administer retirement plans.  A fiduciary duty means that someone has the obligation to act in another’s interest, rather than his or her own interest.  So, a plan fiduciary responsible for investing the plans assets is supposed to seek the best/safest return possible, rather than investing in the hot new club opening down the block.  Huge treatises have been written on the scope of fiduciary duties, but below are some examples of cases involving fiduciary duties under ERISA:

• Nationwide Life Insurance administers 401k plans for small and medium-sized companies, and chooses the investment options to be offered to the plan participants.   The companies that it managed the plans for sued Nationwide for allegedly choosing mutual fund companies based on what the mutual fund companies paid Nationwide, rather than choosing the companies that offered the best investment options at the lowest cost.  Such an action, acting in its own interest rather than the interests of those it owed fiduciary duties to, would violate ERISA’s fiduciary duties.  Northwestern settled the case for $140 million, a record settlement.  

• In Amara v. Cigna, a  Connecticut ERISA litigation matter,that has already gone to the U.S. Supreme Court once, and is likely to go again, CIGNA was sued for telling plan participants that the change from a defined benefit plan to a defined contribution plan would have no effect on benefits, and that it was not being done to save money.  In fact, the benefits were worse for many participants, particularly those eligible for early retirement, and there were internal emails stating that the change was intended to save CIGNA money.    One of the most notable things about this case is that even though the plan fiduciary was flat out lying to the participants, courts have struggled to come up for a remedy.  As I have discussed in other posts, the courts have severely limited the remedies available under ERISA.  That is may take two trips to the Supreme Court to figure out how to fix this wrong shows how messed up the ERISA remedial scheme is.  Some courts are making baby steps towards removing the shackles on ERISA remedies (see this post  and this one), and the Amara case may be the case that ultimately unchains ERISA’s remedies.

• How plan fiduciaries invest plan assets has been fertile grounds for ERISA fiduciary litigation.  After the 2008 stock market crash, many cases, called “stock drop cases,” were brought against plans that invested in the employer’s stock.  While few of the cases succeeded, they generated a lot of law about the scope of an ERISA fiduciary’s duties in investing plan assets.  See, for instance, the U.S. Supreme Court case Fifth Third Bancorp v. Dudenhoeffer, 134 S. Ct. 2459 (2014). This case is an example of why ERISA drives lawyers nuts.  The one line summary of the case is pro-plaintiff, as the Court rejected a defense commonly used by plan fiduciaries in these cases.  In the body of the case, though, the Court sets for rules for what a plaintiff must prove to win that are so difficult that few plaintiffs will be able to satisfy them.  Little is simple with ERISA litigation.

ERISA fiduciary duties have a significant impact on retirement plans, but the duties also apply to welfare benefit plans.  For instance, in Devine v. Combustion Engineering, a case where I was counsel for plaintiffs in a nationwide class action, we alleged Combustion Engineering had breached its fiduciary duty to the participants by promising lifetime free health benefits in connection with an early retirement programs, and then reducing the benefits after they had retired. 

The distinction between retirement benefits and non-retirement benefit under ERISA is one of the arcane distinctions that scare away many attorneys from practicing ERISA law.  If you choose to have a lawyer represent you in these matters, make sure he or she is comfortable with this and the other arcane aspects of ERISA.