Kevin M. McCann, M.d. v. Unum Provident

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-2014
___________
KEVIN M. MCCANN, M.D.,
Appellant
v.
UNUM PROVIDENT; *HARTFORD LIFE &
ACCIDENT INSURANCE COMPANY
*(Dismissed Per Court Order dated October 12, 2017)
_______________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3-11-cv-03241)
District Judge: Honorable Mary L. Cooper
______________
ARGUED: April 26, 2018
Before: JORDAN, BIBAS, and SCIRICA, Circuit Judges.
(Opinion Filed: October 5, 2018)

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Tybe A. Brett [ARGUED]
Feinstein Doyle Payne & Kravec
429 Fourth Avenue
Law & Finance Building, Suite 1300
Pittsburgh, PA 15219
Michael E. Quiat
Uscher, Quiat, Uscher & Russo
433 Hackensack Avenue
2nd Floor
Hackensack, NJ 07601
Counsel for Appellant
Steven P. Del Mauro [ARGUED]
Janet Nagotko
McElroy Deutsch Mulvaney & Carpenter
570 Broad Street
Suite 1500
Newark, NJ 07102
Counsel for Appellee
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
This appeal addresses two principal issues: First,
whether a group insurance plan is governed by the Employee

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Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.
§§ 1001, et seq., and second, whether the physician–claimant
was incorrectly denied his disability benefit payments.
Plaintiff–appellant, Dr. Kevin McCann, is a radiologist
certified in the specialty of interventional radiology. The
gravamen of this appeal concerns a supplemental long-term
disability insurance policy Dr. McCann purchased from
defendant, Provident Life and Accident Insurance Company.
After initially issuing payments under the policy, Provident
terminated Dr. McCann’s disability benefits. Central to its
decision was a determination that Dr. McCann was primarily
practicing as a diagnostic radiologist—rather than as an
interventional radiologist—at the time he became disabled.
This suit followed.
As a preliminary matter, the parties dispute whether Dr.
McCann’s claim arises under ERISA. Thus, we first consider
the outer bounds of an employer’s involvement in a group or
group-type insurance plan before deciding whether the plan
may be governed by ERISA. The Department of Labor has
promulgated a safe harbor regulation exempting certain plans
from the definition of an “employee welfare benefit plan.” But
we conclude Dr. McCann’s then-employer sufficiently
endorsed the plan under which his policy was purchased to
render the safe harbor inapplicable. ERISA will supply the
governing framework.
As to the merits, we believe Provident incorrectly
defined Dr. McCann’s occupation in administering his
disability claim and that the claim must be evaluated in the
context of his specialty—interventional radiology. We will
remand for the District Court to consider whether Dr.

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McCann’s medical conditions prevent him from being able to
perform his “substantial and material duties” as an
interventional radiologist, as required by the terms of the
policy.
I. Factual Background
A. Dr. McCann’s Employment at Henry Ford
Hospital and Supplemental Long-Term
Disability Insurance Policy
After graduating from medical school and obtaining
certification as an interventional radiologist, Dr. McCann was
hired by Henry Ford Hospital to serve in a two-year Graduate
Trainee Physician Program. While there, Dr. McCann worked
in the Hospital’s Department of Diagnostic Radiology until the
completion of his fellowship on June 30, 1991.
To Dr. McCann and other employees, the Hospital
offered a “Base Plan” of non-contributory long-term disability
benefits. The Hospital determined the Base Plan’s eligibility
criteria and set the available maximum monthly benefit. As
relevant here, the Hospital also provided certain groups of
employees with information pertaining to supplemental long-
term disability insurance. Fellows, like Dr. McCann, who
served in the Hospital’s Graduate Trainee Physician Program
were eligible to purchase supplemental insurance under the
Residents’ Supplemental Disability Insurance Plan (RSDP).
The RSDP was funded through the purchase of individual
policies and underwritten by Provident’s predecessor, Unum
Life Insurance Company of America. While participants paid
100% of policy premiums, all policyholders received a fifteen

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percent discount based solely on their association with the
Hospital.
During Dr. McCann’s employment, Lucasse, Ellis, Inc.
(“Lucasse”) served as the Hospital’s broker for insurance
policies issued under the Base Plan and RSDP. Lucasse sent
Dr. McCann a letter advertising the RSDP in 1991 and
informing him that Provident had been chosen by the Hospital
“to provide supplemental disability insurance to Ford
physicians.” Joint App. at 166. The letter explained that the
RSDP was designed to address the “single greatest concern”
for physicians—that they may be disabled within their
specialty. Joint App. at 168. Specifically, Lucasse’s letter
stated: “Unlike many occupations, a doctor may become
disabled by an injury or illness that would not preclude
working in another occupation,” and that “[y]our program will
state . . . that your occupation is a recognized medical specialty,
with its own specific duties. Thus, it is possible for you to be
disabled within your specialty while you can still be a
physician.” Id.
Thereafter, Dr. McCann spoke with a Lucasse
brokerage agent, David Manes. After discussing with Manes a
long-term disability insurance policy he had purchased earlier
from a different insurer, Dr. McCann applied to Provident for
supplemental insurance coverage in May 1991. Dr. McCann’s
application was approved and his policy took effect on July 1,
1991.1 Particularly relevant are the provisions relating to total
disability, which state:
1 At the time he became disabled, Dr. McCann’s policy
provided a monthly benefit of $15,000.00.

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Total Disability or totally disabled
means that due to Injuries or
Sickness:
1. [Y]ou are not able to perform
the substantial and material
duties of your occupation; and
2. [Y]ou are receiving care by a
Physician which is appropriate
for the condition causing the
disability. We will waive this
requirement when continued
care would be of no benefit to
you.
Joint App. at 308. The policy also provides the following
definition of occupation:
[Y]our occupation means the
occupation (or occupations, if
more than one) in which you are
regularly engaged at the time you
become disabled. If your
occupation is limited to a
recognized specialty within the
scope of your degree or license, we
will deem your specialty to be your
occupation.
Id.

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B. Dr. McCann’s Medical Diagnoses
Nearly fifteen years after completing his fellowship at
Henry Ford Hospital, Dr. McCann began employment at
Holzer Clinic in Gallipolis, Ohio. While at Holzer, between
2006 and 2010, Dr. McCann consulted a variety of medical
providers for the evaluation and treatment of obstructive sleep
apnea (OSA)2, a mildly dilated ascending aortic root
aneurysm,3 hypertension, and obesity. These conditions form
the basis of Dr. McCann’s Total Disability claim.
First, in December 2006, Dr. Howard Linder diagnosed
Dr. McCann with OSA. The condition caused Dr. McCann to
experience “excessive daytime sleepiness,” and Dr. Linder
opined that he was “probably unable to stay alert for long
periods” at work. Joint App. at 1328–29. Dr. McCann
underwent a sleep study later that month to evaluate the
severity of his OSA and, based upon the results of the study,
Dr. Linder developed a treatment plan. The plan included using
a continuous positive airway pressure (CPAP) machine at night
to assist with breathing during sleep.
Shortly thereafter, Dr. McCann also began experiencing
shortness of breath and dizziness. On April 16, 2007, an
echocardiogram revealed his “aortic root mildly dilated at 3.71
2 OSA “is a condition in which the flow of air pauses or
significantly decreases during breathing while the individual is
asleep due to a narrowing or blockage of the airway.” Joint
App. at 4054. As a result, OSA can cause interruptions in
breathing patterns and excessive fatigue.
3 “An aneurysm consists of an abnormal enlargement of a
weakened area in the aortic wall.” Joint App. at 4057. The aorta
supplies blood pumped by the heart to the rest of the body.

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[cm].” Joint App. at 2174. Several months later, Dr. McCann
visited a specialist, Dr. Joseph Coselli, Chair of Cardiothoracic
Surgery at the Texas Heart Institute at Baylor Medical Center,
and was diagnosed with a mildly dilated aortic root aneurysm,
hypertension, and obesity.
Following his diagnoses, Dr. McCann stopped working
at Holzer and sent Provident a notice of claim for benefit
payments in March 2008.4 In support of the claim, Dr. Coselli
submitted an Attending Physician Statement (APS) listing
“restrictions” as “no lifting that ilicits [sic] Valsalva maneuver5
otherwise no restrictions” and “limitations” as “avoid heavy
lifting [and] avoid stress to help keep BP under control to
prevent further dilation of aorta.” Joint App. at 810.6 Dr.
Coselli also wrote a letter to Holzer Clinic in April, in which
he noted Dr. McCann’s hypertension and sleep apnea put him
“into a high risk population for risk of further dilation of his
aorta” and recommended “tight blood pressure control, weight
loss and undertaking an exercise regime in order to improve
[Dr. McCann’s] overall functional capacity.” Joint App. at
1176. Dr. Coselli further stated that “[i]n light of these
restrictions, I feel it would be best if he was classified as fully
disabled permanently, effective March 10, 2008.” Id.
4 Prior to ceasing work completely, Dr. McCann reduced his
workload on two occasions because of OSA-related fatigue.
5 A Valsalva maneuver is a breathing technique that requires a
forceful attempted exhalation against a closed airway.
6 Dr. Linder also submitted an APS to Provident on July 15,
2008, listing Dr. McCann’s diagnoses as “obstructive sleep
apnea causing daytime sleepiness” and “excessive daytime
sleepiness despite CPAP.” Joint App. at 1328.

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C. Provident’s Initial Payment of Benefits
Provident acknowledged Dr. McCann’s disability claim
on April 4, 2008, and informed him that medical and financial
information would be requested and reviewed to process the
claim. Provident also interviewed Dr. McCann, both in person
and via telephone, on numerous occasions. These interviews
discussed Dr. McCann’s educational and employment
background, his medical conditions, and the impact of the
medical conditions on his medical practice.
Regarding Dr. McCann’s occupational duties,
Provident requested information from Holzer. Dr. Phillip
Long, Vice-Chairman of Radiology, completed a job
description form estimating that Dr. McCann worked an
average of 60 hours per week divided among interventional
radiology (approximately 20 hours), diagnostic radiology
(approximately 28 hours), fluoroscopy7 (approximately 1
hour), night call (approximately 10 hours), and paperwork
(approximately 1–2 hours).
In addition, Provident requested the Current Procedural
Terminology (CPT) codes8 related to Dr. McCann’s practice.
Upon receipt of the codes, Provident employed a vocational
7 Described as “[p]erform[ing] barium studies under
fluoroscopy in standing position wearing lead apron.” Joint
App. at 1014.
8 CPT codes are five-digit, procedure-specific codes
maintained by the American Medical Association used for
reporting medical services and surgical procedures to third-
party payers.

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rehabilitation specialist to verify the duties of Dr. McCann’s
occupation as an interventional radiologist. To this end, David
Gaughan submitted a report on November 13, 2008. Gaughan
confirmed that Dr. Long’s job description, in combination with
the CPT codes, were sufficient to conclude Dr. McCann
performed duties related to “Diagnostic & Interventional
Radiology prior to disability.” Joint App. at 1514.
Regarding Dr. McCann’s medical conditions, Provident
submitted Dr. McCann’s file to Dr. Joseph Davids, a board-
certified physician in internal medicine and cardiovascular
diseases. Dr. Davids reviewed Dr. Coselli’s and Dr. Linder’s
letters and notes as of July 2008 and concluded that “the
prognosis for functional improvement is poor because it is
difficult to maintain [a] level of tight BP [blood pressure]
control while working in a stressful occupation, such as
interventional radiology. Furthermore, an interventional
radiologist will often perform Valsalva maneuvers during a
procedure, which will lead to a rise in BP.” Joint App. at 1455.
Dr. Davids also opined that evidence of good blood pressure
control might alleviate Dr. McCann’s restrictions and
limitations.
Following this medical review and analysis of Dr.
McCann’s financial and occupational information, Provident
approved Dr. McCann for Total Disability payments on
September 4, 2008.9 Provident initially issued payments with a
Reservation of Rights, but this reservation was later
withdrawn.
9 Provident also paid Residual Disability benefits to Dr.
McCann from April 1, 2007 to March 10, 2008, during which
time Dr. McCann was working reduced hours.

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D. Provident Reviews its Determination
Provident reexamined Dr. McCann’s Total Disability
status in the summer of 2009. In May, a medical consulting
team consisting of Dr. Davids and a clinical consultant, Patricia
Carroll, reviewed the medical records in Dr. McCann’s file.
Davids and Carroll recommended a 24-hour blood pressure
study, which was scheduled for July 9, 2009. The results of this
study were forwarded to another clinical representative and Dr.
Alfred Parisi, who concluded:
[T]he systolic BP shows good but
not ideal BP control . . . The
[insured’s] occupation as an
interventionalist would involve
some pushing requirements when
putting in a catheter and he would
have some potential problems
doing this. The act of pushing does
tend to increase BP. The [insured]
might also have increased stress
during a difficult procedure. If the
[insured] is an interventional
radiologist it is reasonable that he
would not be able to perform some
of the interventional activities. If
the [insured] does not perform
much interventional radiology
work, he should be able to perform
many of the sedentary
[occupational] requirements.
Joint App. at 2043.

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Based on Dr. Parisi’s conclusions, Provident
representatives recommended scheduling another field
interview and obtaining updated medical records. This
included the records of Dr. Nabil Fahmy, Dr. McCann’s
primary care physician. Dr. Fahmy’s notes from Dr. McCann’s
most recent visit in July stated that he was “generally doing
okay with no new problems,” that his “[h]ypertension [was]
doing well, BP [was] under good control at home,” and that Dr.
McCann was “[n]on compliant with diet and exercise
schedule,” but taking “medications daily as recommended.”
Joint App. at 2204.
Provident also reviewed the treatment notes from Dr.
McCann’s follow-up visit with Dr. Coselli on August 10, 2009.
Katharine Loring, a nurse practitioner, noted that in response
to Dr. McCann’s request that Dr. Coselli’s office continue
supporting his disability claims, she “discuss[ed] with him that
his aorta is really not a size we would recommend he need
disability and that many people with much larger aortas
continue to work.” Joint App. at 2435. She accordingly
suggested Dr. McCann “do just regular radiology as a way to
continue to work but with less stress.” Id.
Dr. Coselli’s notes similarly observed:
We discussed the terminology of
permanent and total disability and
we agreed to disagree regarding
the sequencing of events. The fact
remains that over the past two
years following him, his aorta has
been essentially stable. Surgery is
not indicated at this time – the size

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does not dictate intervention and
although there is a 30% chance that
he will need surgery, it may not be
for 5, 10 or 20 years.
Joint App. at 2434. This discussion was memorialized in a
follow-up letter to Dr. McCann dated September 9, 2009, in
which Dr. Coselli explained: “your aortic aneurysm has had
only minimal increase in size since the January 2008 study,
increasing from 4.0 cm to the current 4.3 cm,” but that “[a]s in
the original letters to Holzer Clinic, your disability
classification remains unchanged.” Joint App. at 2433. Dr.
Coselli also informed Dr. McCann that while he was “happy to
monitor [his] aorta studies, [his office was] not a medical
practice, but surgical,” id., and that Dr. McCann should consult
his primary care physician to coordinate his care.
To this end, Dr. McCann chose Dr. David Lombardi, a
board-certified internist, as his local primary care physician.
Following an appointment in October 2009, Dr. Lombardi
submitted an APS to Provident supporting Dr. McCann’s
disability claim and identifying his primary diagnosis as
“thoracic ascending aortic aneurysm” and his secondary
diagnosis as OSA. Regarding job-related restrictions and
limitations, Dr. Lombardi concluded Dr. McCann could not
complete “work of any kind due to [his] cardiac condition.”
Joint App. at 2389.
Around this time, Provident again reviewed Dr.
McCann’s CPT codes for procedures performed from 2005 to
2008. Vocational analyst Christina Lubin compared the
percentage of interventional procedures performed to the
percentage of diagnostic procedures. Using this data, another

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vocational analyst concluded that “interventional charges
accounted for 11% – 18% of total charges” and
“[i]nterventional units accounted for 6% – 11% of total units.”
Joint App. at 2341. Based on this information, Lubin
concluded Dr. McCann “reasonably spent the majority of his
time reading films and dictating interpretive reports.
Interventional procedures appear to have been performed on an
occasional basis.” Joint App. 2579.
Provident also assembled a second medical review team
to review Dr. McCann’s medical files. The team included a
clinical representative, Beth O’Brien, and Dr. Parisi. After
reviewing all of the files, O’Brien observed that Dr. McCann’s
aortic aneurysm was stable and that Dr. Coselli was no longer
supporting restrictions and limitations from his condition. Dr.
Parisi also reviewed Dr. McCann’s file and concluded that Dr.
McCann should avoid lifting heavy objects (> 50 lbs.), restrict
his work hours to 50 hours per week, and not work night call
or night shift hours. This assessment was based on his finding
that Dr. McCann’s “thoracic aneurysm was not large and
relatively stable, that his hypertension was reasonably
controlled on medication and he was doing well with his CPAP
treatment for sleep apnea.” Joint App. at 2564.
In addition to reviewing Dr. McCann’s files, Dr. Parisi
contacted Dr. Lombardi to “obtain clarification of . . . Dr.
McCann’s functional capacity.” Id. Dr. Lombardi responded
via letter stating:
I have reviewed the most recent
letter from Dr. Coselli’s office
dated September 2009 and prior
letters. I have included them for

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your review. In these letters, Dr.
Coselli, the cardiothoracic
surgeon, states that Dr. McCann is
fully and permanently disabled
due to his condition. He indicates
that the aneurysm has increased in
size since a prior study. I now
oversee Dr. McCann’s general
medical care. Given the
documentation and
recommendations of the
cardiothoracic surgeon, I,
therefore, agree and support Dr.
McCann’s ongoing disability
application.
Joint App. at 2596.
Nevertheless, Dr. Parisi maintained his conclusion. He
noted “[Dr. McCann’s] hypertension is adequately controlled
as evidenced by the 24 hour ambulatory blood pressure study,”
and that the “[m]ost recent information indicates his sleep
apnea is well controlled,”10 and he again suggested the
limitations described above. Joint App. at 2607.
10 Around this time, Provident requested Dr. McCann’s
medical records from Dr. Linder going back to March 1, 2009.
Dr. Linder provided the records, which were reviewed by a
Provident-employed physician, Dr. Alfred Kaplan. The records
included the results of a March 2009 sleep study. Based on this
study, Dr. Kaplan concluded that Dr. McCann “was tolerating
the CPAP well and was not symptomatic from the sleep

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In light of this disagreement, Provident forwarded Dr.
McCann’s claim file to Dr. Costas Lambrew, a designated
medical officer, for an independent medical review on
December 22, 2009. Dr. Lambrew’s review also concluded Dr.
McCann was capable of performing a modified work schedule.
This assessment was based on the fact that Dr. McCann’s aorta
was asymptomatic and stable, Dr. Coselli’s most recent
treatment notes, and that Dr. McCann’s “hypertension has been
controlled, as reflected by his recorded home pressures and the
[24-hour blood pressure study].” Joint App. at 2619. He further
concluded Dr. McCann could perform “[s]ustained, full time
light work as a non-interventional Radiologist, with a
restriction of no heavy lifting, and reduction of . . . perceived
stress by working no more than 50 hours.” Id.
E. Provident Terminates Dr. McCann’s Benefit
Payments
After the extensive communications with Dr. McCann
and various medical professionals, noted above, Provident
terminated benefit payments in December 2009. In its letter to
Dr. McCann, Provident supported its decision by pointing to,
among other things: the records from Dr. Coselli in connection
with Dr. McCann’s August 10, 2009 visit; recent sleep studies
from Dr. Linder reporting that Dr. McCann was tolerating the
CPAP machine well; its medical reviews; and the review of Dr.
McCann’s CPT codes.
Based on this information, Provident concluded Dr.
McCann was “able to perform the duties of [his] occupation,
apnea[.] Consequently he was not experiencing impairing
daytime somnolence.” Joint App. at 2559.

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maintain a regular work schedule of up to 50 hours per week
with no night hours or night call” and therefore was “not
Totally Disabled in accordance with the Policy provisions.”
Joint App. at 125. Provident noted its vocational consultant
“concluded that the majority of [Dr. McCann’s] practice was
diagnostic radiology which involves sitting at a computer to
read films.” Id. Further, the letter stated Dr. McCann was not
eligible for residual disability11 because, “[a]lthough [he]
11 Dr. McCann’s policy defines residual disability as follows:
Residual Disability or residually
disabled, during the Elimination
Period, means that due to Injuries
or Sickness:
1. [Y]ou are not able to do one or
more of your substantial and
material daily business duties
or you are not able to do your
usual daily business duties for
as much time as it would
normally take you to do them;
2. [Y]ou have a Loss of Monthly
Income in your occupation of
at least 20%; and
3. [Y]ou are receiving care by a
Physician which is appropriate
for the condition causing
disability. We will waive this
requirement when continued
care would be of no benefit to
you.

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indicated that [he] previously worked 60 hours per week, [his]
ability to work 50 hours per week would not be expected to
cause a reduction of [his] monthly income of more than 20%.”
Joint App. at 126.
F. Dr. McCann’s Appeal
Dr. McCann appealed Provident’s decision and,
following the termination of his benefits, visited one new
consulting physician: Dr. Chandra Madala, a board-certified
cardiologist. Dr. Madala addressed a letter to Dr. McCann on
June 14, 2010, stating his agreement with “Dr. Coselli’s letter
to Holzer . . . . that [Dr. McCann was] fully and permanently
disabled.” Joint App. at 2841. Dr. Madala recommended
continued medical management of Dr. McCann’s condition
with blood pressure control and lifestyle modification and
noted that “[o]f particular importance is to avoid stress.” Id. At
Dr. McCann’s request, Dr. Linder also drafted a letter in June,
stating that Dr. McCann’s diagnosis of OSA exacerbated “his
hypertension which is a continuing risk factor for possible
rupturing [of] his aneurysm.” Joint App. at 2836. Dr. Linder
further stated that “[t]reatment with CPAP certainly helps but
does not eliminate the risk factor of contributing to [Dr.
McCann’s] hypertension.” Id.
Provident continued to review Dr. McCann’s file in
connection with his appeal. On August 3, 2010, Provident met
with Dr. Long to discuss Dr. McCann’s occupational duties.
Dr. Long did not dispute Provident’s CPT code analysis, but
when asked whether Dr. McCann was hired as an
interventional radiologist or a diagnostic radiologist, Dr. Long
Joint App. at 313.

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replied “[b]oth” and explained that interventional radiologists
do both things. Joint App. at 3148. He noted that nine
radiologists perform diagnostic radiology at Holzer, with work
evenly divided among the practicing radiologists, but that only
three also perform interventional radiology, and that Dr.
McCann would not have been hired by Holzer if he did not
perform some interventional radiology. Dr. Long also
explained that in the same amount of time it can take to do an
interventional procedure, e.g., an angioplasty, he can probably
read more than 10 MRIs. Finally, when asked whether Holzer
would consider hiring Dr. McCann again, Dr. Long stated
Holzer might if Dr. McCann “could work as a diagnostic
radiologist who could also perform on-call work.” Joint App.
at 3151.
Provident also conducted another medical review. In
September, Dr. Paul Sweeney, a board-certified internist with
a subspecialty in cardiology, evaluated Dr. McCann’s file. In
his review, Dr. Sweeney observed “[t]he medical record
clearly documents an asymptomatic mildly dilated ascending
aorta,” but that “aggressive efforts and blood pressure control,
lipid management, and weight reduction” were still
appropriate. Joint App. at 3198. Dr. Sweeney also concluded
from Dr. Coselli’s office records that “there is no longer any
valid rationale” which “would prevent Dr. McCann from
resuming on a full-time basis his previous occupation as an
interventional and diagnostic radiologist.” Id. Specifically, Dr.
Sweeney found “no restrictions on standing, sitting, or
walking. Dr. McCann can occasionally climb and operate
heavy machinery. He can frequently twist and reach above
shoulder level. He can continuously lift up to 10 pounds,
frequently lift 11–20 pounds, and occasionally lift 21–100
pounds.” Joint App. at 3199.

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G. Provident’s Final Determination
Following Dr. Sweeney’s review, Provident upheld its
decision in a letter to Dr. McCann’s counsel dated September
20, 2010. Again emphasizing review of Dr. McCann’s CPT
codes, and the August 10, 2009 follow-up visit with Dr.
Coselli, Provident explained that “Dr. Coselli released Dr.
McCann to ‘regular radiology’, which is primarily what Dr.
McCann was doing prior to his claim for disability, as
evidenced by the CPT code review.” Joint App. at 152. While
based on Dr. Sweeney’s conclusions, Provident concluded Dr.
McCann could perform both the diagnostic and interventional
components of his occupation, Provident also noted that even
if Dr. McCann could not perform his interventional duties,
because interventional duties accounted for a small part of his
practice, he would not qualify for Residual Disability.
In addition, Provident explained its initial payments of
Total Disability were based on an “incorrect understanding of
[Dr. McCann’s] occupation.” Joint App. at 155. “[D]espite the
fact that Dr. McCann was hired by and listed by Holzer Clinic
as an Interventional Radiologist,” the letter stated, “his CPT
codes clearly reflect that, in the years prior to disability, Dr.
McCann was practicing primarily as a Diagnostic
Radiologist.” Joint App. at 153. Because the restrictions and
limitations described by physicians (i.e., lesser work load and
no night work) “would not prevent Dr. McCann from
performing the substantial and material duties of his
occupation, which were primarily diagnostic in nature,” id.,
Provident maintained its decision to terminate Dr. McCann’s
Total Disability payments.

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II. Procedural History
Dr. McCann brought suit under ERISA in federal court
seeking payment for all past due benefits and reinstatement of
his monthly Total Disability payments. Despite citing ERISA
as the basis for federal jurisdiction, Dr. McCann contested
ERISA’s applicability before the District Court, arguing the
policy was not part of the RSDP nor a separate employee
welfare benefit plan. Alternatively, Dr. McCann argued a safe
harbor regulation promulgated by the Department of Labor
removed the policy from ERISA’s purview.
Concluding the RSDP was an employee welfare benefit
plan within the meaning of ERISA, and that the safe harbor
criteria were not satisfied, the District Court asserted
jurisdiction under 29 U.S.C. § 1132(e)(1) and 28 U.S.C. §
1331. The District Court further found that ERISA preempted
Dr. McCann’s breach-of-contract claim, but that Dr. McCann’s
claim could reasonably be construed as a claim under ERISA
§ 502(a), 29 U.S.C. § 1132(a), which provides a cause of
action for plan participants who are denied benefits.
The parties subsequently filed cross-motions for
summary judgment as to the merits of Dr. McCann’s claim to
benefits. Reviewing Provident’s denial of benefits de novo, the
District Court found Dr. McCann had failed to meet his burden
of demonstrating Provident’s determination was incorrect. The
court reasoned Provident had not incorrectly administered its
medical review because Dr. McCann failed to provide
objective evidence of job-related restrictions and limitations,
and that Provident’s determination with respect to Dr.
McCann’s occupation was not incorrect. Furthermore, the
court agreed with Provident that any claim for Residual

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Disability benefits under the policy was untimely because Dr.
McCann did not submit a claim for residual benefits before
Provident’s final determination.
This timely appeal followed.
III. ERISA’s Applicability
As a threshold matter, we address whether Dr.
McCann’s policy is governed by ERISA. This question is not
only one of jurisdiction,12 but also of practical import. “[T]he
substitution of ERISA principles . . . for state-law principles
can make a pronounced difference.” Johnson v. Watts
Regulator Co., 63 F.3d 1129, 1131 (1st Cir. 1995). ERISA
preempts parallel state law remedies—here, the breach-of-
contract claim Dr. McCann has raised against Provident. See,
e.g., Wirth v. Aetna U.S. Healthcare, 469 F.3d 305, 309 (3d
Cir. 2006). But beyond this, ERISA’s applicability also
determines such entitlements as those to a jury trial, see Cox v.
Keystone Carbon Co., 894 F.2d 647, 650 (3d Cir. 1990), and
punitive damages, see Pane v. RCA Corp., 868 F.2d 631, 635
(3d Cir. 1989).
12 Dr. McCann renews his challenge to ERISA’s applicability
on appeal but this challenge does not implicate our subject-
matter jurisdiction. The parties are diverse and the amount in
controversy exceeds $75,000. See 28 U.S.C. § 1332. We
therefore have jurisdiction under 28 U.S.C. § 1291 whether or
not ERISA governs. But if we were to conclude jurisdiction
derives from the parties’ diversity, state substantive law would
govern the interpretation of Dr. McCann’s policy.

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23
By its terms, ERISA applies to insurance policies
obtained through (1) a plan, fund, or program (2) that is
established or maintained (3) by an employer (4) for the
purpose of providing benefits (5) to its participants or
beneficiaries. See 29 U.S.C. § 1002(1); Donovan v.
Dillingham, 688 F.2d 1367, 1371 (11th Cir. 1982) (en banc).
This appeal concerns the second requirement that a plan, fund,
or program be “established or maintained” by the employer.13
We must interpret the U.S. Department of Labor’s safe harbor
regulation describing when, and to what extent, an employer
may be involved with an employee welfare benefit plan
without establishing or maintaining it. See 29 U.S.C. § 1135
13 On appeal, Dr. McCann challenges only the District Court’s
determination as to the regulatory safe harbor. “Whether a plan
exists within the meaning of ERISA is a question of fact, to be
answered in light of all the surrounding facts and
circumstances from the point of view of a reasonable person.”
Deibler v. United Food & Commercial Workers’ Local Union
23, 973 F.2d 206, 209 (3d Cir. 1992) (internal quotation marks
and citation omitted). But the interpretation of a regulation also
presents a legal question, thus, this issue presents a mixed
question of law and fact. We review de novo the District
Court’s interpretation of the safe harbor criteria but will reverse
factual findings made in connection with the criteria only if
clearly erroneous. See Johnson, 63 F.3d at 1132 (explaining
that the safe harbor’s applicability “may require factfinding,
and if it does, that factfinding is reviewed only for clear error”);
Thompson v. Am. Home Assur. Co., 95 F.3d 429, 434–5 (6th
Cir. 1996) (describing application of the safe harbor as a
“factual inquiry”); Pacificare Inc. v. Martin, 34 F.3d 834, 837
(9th Cir. 1994) (applying the clearly erroneous standard to
factual findings in this context).

-- 23 of 46 --

24
(authorizing the Secretary to promulgate interpretive
regulations).
In relevant part, the safe harbor provides that an
“employee welfare benefit plan” or “welfare plan” is not
covered by ERISA when:
(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

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25
compensation, excluding any
profit, for administrative
services actually rendered in
connection with payroll
deductions or dues
checkoffs.
29 C.F.R. § 2510.3-1(j). All four of the safe harbor’s criteria
must be established for an otherwise qualified plan, fund, or
program to be exempt from ERISA’s coverage, see Menkes v.
Prudential Ins. Co. of Am., 762 F.3d 285, 293 (3d. Cir. 2014),
and that burden rests with the party asserting the exception. But
a program that fails to satisfy any one criterion is not
necessarily “established or maintained” by the employer. See,
e.g., Johnson, 63 F.3d at 1133; Anderson v. UNUM Provident
Corp., 369 F.3d 1257, 1263 n.2 (11th Cir. 2004); Gaylor v.
John Hancock Mut. Life Ins. Co., 112 F.3d 460, 463 (10th Cir.
1997); Hansen v. Continental Ins. Co., 940 F.2d 971, 976 (5th
Cir. 1991), abrogated on other grounds by CIGNA Corp. v.
Amara, 563 U.S. 421 (2011).
In the present appeal, Dr. McCann is the party who
asserts that the safe harbor exempts his policy from ERISA’s
requirements. Thus, he bears the burden of proof that the policy
fulfills the safe harbor’s four criteria. Provident does not
dispute that the RSDP was completely voluntary and that
Henry Ford Hospital received no compensation in connection
with the program, establishing the second and fourth criteria.14
14 Provident asserts, however, our statement in Menkes that “no
authority. . . suggest[s] that . . . closely related components of
an overarching welfare benefit plan ought to be unbundled,”
762 F.3d at 291, is fatal to Dr. McCann’s safe harbor argument.

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26
We therefore consider whether Dr. McCann has established the
remaining criteria—whether Henry Ford made “contributions”
to or endorsed the RSDP—but find the question of
endorsement to be the dispositive one.
A. Background
ERISA was enacted “to protect . . . the interests of
participants in employee benefit plans and their beneficiaries.”
29 U.S.C. § 1001; see also Nachman Corp. v. Pension Ben.
Guar. Corp., 446 U.S. 359, 362 (1980) (discussing ERISA’s
enactment and purpose). This goal manifests itself in the
statutory text, including, for example, the fiduciary duties
applicable to the management of both pension and non-pension
benefits. See 29 U.S.C. §§ 1101–1114.
See also Gross v. Sun Life Assur. Co. of Canada, 734 F.3d 1,
10 (1st Cir. 2013) (“[The insured’s] argument that the safe
harbor exception applies depends on her assumption that the
LTD policy may be examined independently from the rest of
Pinnacle’s insurance benefits plan.”). But in Menkes, we
emphasized that “[a]ll of the characteristics of the Basic
Policies and Supplemental Coverage indicate that they are not
two separate sources of coverage, but two parts of one broader
benefits plan,” because all policies were governed by a single
group contract between the company and the insurer and
because all of the information regarding benefit terms, rules,
exclusions, and claim procedures for the policies were the
same and contained in the same documents. 762 F.3d at 291.
Provident points to no facts in the record which would resolve
this factually intensive inquiry and so we will examine the
RSDP independently from Henry Ford Hospital’s Base Plan of
non-contributory benefits, as did the District Court.

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27
Mindful of this purpose, the Department of Labor’s safe
harbor regulation “operates on the premise that the absence of
employer involvement vitiates the necessity for ERISA
safeguards.” Johnson, 63 F.3d at 1133. This is clear from the
proposed rule’s preamble, in which the Department of Labor
explains the safe harbor applies where “[t]he involvement of
the employer or employee organization in such programs is so
minimal that the program cannot be said to be ‘established and
maintained by an employer.’” 40 Fed. Reg. 24642, 24643 (June
9, 1975).
As we interpret the Department’s safe harbor, we
recognize that “[t]he basic tenets of statutory construction hold
true for the interpretation of a regulation.” Burns v. Barnhart,
312 F.3d 113, 125 (3d Cir. 2002). Where the language of a
regulation is plain and unambiguous, we need not inquire
further. See id. But this is not such a case and we will,
therefore, consider the ordinary and natural meaning of the
regulatory language within its context and the safe harbor’s
overreaching purpose. In this case, the record is more
developed on the issue of endorsement. Because we find Henry
Ford Hospital’s actions sufficient to fall within the meaning of
endorsement, we leave for another day the meaning of
contribution.
B. Whether Henry Ford Hospital Endorsed the
RSDP
The third criterion for establishing eligibility for the
ERISA safe harbor requires that “[t]he sole functions of the
employer . . . are, without endorsing the program, to permit the
insurer to publicize the program to employees or members

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28
[and] to collect premiums through payroll deductions or dues
checkoffs and to remit them to the insurer.” 29 C.F.R. §
2510.3-1(j). This case concerns the contours of endorsement.
Beginning with the ordinary meaning of “endorse,” to
endorse something is generally to indicate approval or support.
See, e.g., Oxford English Dictionary 162–63 (Compact ed.
1987) (defining “endorse” as to “vouch for” and
“endorsement” as “approving testimony”); Webster’s Third
New International Dictionary 749 (1964) (similarly defining
“endorse” as “to vouch for” and “to express definite approval
or acceptance of”). This aligns well with the final rule’s
preamble, which conceptualized the third criterion as a
“requirement of employer neutrality”—“the key to the
rationale for not treating such a program as an employee
benefit program.” 40 Fed. Reg. 34526, 34527 (Aug. 15, 1975).
In view of this, we conclude the key inquiry for
endorsement is whether an employer has strayed from the
equilibrium of neutrality. “If an employer offers no welfare
benefit plan to its employees but leaves each employee free to
shop around,” Brundage-Peterson v. Compcare Health Servs.
Ins. Corp., 877 F.2d 509, 510 (7th Cir. 1989), neutrality is
apparent. Where the employer takes one step further, merely
permitting an insurer to publicize the program and performing
only ministerial tasks, the visage of neutrality remains. See,
e.g., Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207,
1213 (11th Cir. 1999) (explaining the safe harbor “explicitly
obliges the employer” to “refrain from any functions other than
permitting the insurer to publicize the program and collecting
premiums”); Johnson, 63 F.3d at 1137 (noting “the safe harbor
may be accessible” where “it reasonably clear that the program
is a third party’s offering”). But at some point, an employer’s

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29
actions sufficiently compromise neutrality to an extent that
triggers ERISA’s “uniform regulatory regime.” Menkes, 762
F.3d at 293 (quoting Aetna Health Inc. v. Davila, 542 U.S. 200,
208 (2004)). In identifying this point, we are aided by the
decisions of our sister circuits.
At the outset, however, we emphasize that endorsement
may take many forms. Our inquiry is not a checklist but a
holistic assessment of the employer’s “involvement with the
administration of the plan.” Anderson, 369 F.3d at 1263
(quoting Hansen, 940 F.2d at 978); see also Gaylor, 112 F.3d
at 464 (looking to the “degree of participation by the
employer”). While objective, this inquiry should also consider
the viewpoint of the employee. See Thompson, 95 F.3d at 436–
37; Johnson, 63 F.3d at 1134 (finding “a communication to
employees indicating that an employer has arranged for a
group or group-type insurance program would constitute an
endorsement” if it leads a reasonable employee to believe the
program is established or maintained by the employer).15
So when does an employer stray from neutrality? We
conclude endorsement exists where there is some showing of
material employer involvement in the creation or
administration of a plan. As might be conveyed by the most
natural understanding of the term, this involvement may
manifest as an expression of encouragement. In Hansen v.
15We note this is consistent with the Department of Labor’s
interpretation that endorsement exists if the employer “engages
in activities that would lead a member reasonably to conclude
that the program is part of a benefit arrangement established or
maintained by the employee organization.” Dep’t of Labor Op.
No. 94–26A (1994).

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30
Continental Insurance Company, for example, the Fifth Circuit
emphasized that the employer had provided employees a
booklet with its name and logo that “encouraged the employees
to consider carefully participating in the group accidental death
and dismemberment plan, as it would be ‘a valuable
supplement to your existing coverages.’” 940 F.2d at 978; cf.
Johnson, 63 F.3d at 1139–41 (finding no endorsement where
the employer’s communication to employees stated the
decision was “entirely an individual one”).16
Material involvement may also constitute determining
an insurance program’s eligibility criteria and selecting the
insurance company. “The requirements for a safe harbor
exception under 29 C.F.R. § 2510.3–1(j) are strict,” Moorman
v. UnumProvident Corp., 464 F.3d 1260, 1267 (11th Cir.
2006), and the employer need only play a limited role in the
creation of the insurance program for neutrality to be
compromised.17 Where an employer selects the insurer,
16 The Department of Labor likewise considers an employer to
have endorsed a program where it “expresses to its members
any positive, normative judgment regarding the program.”
Dep’t of Labor Op. No. 94–26A (1994).
17 This mirrors the showing courts have required outside of the
safe harbor context for a plan, fund, or program to be
“established or maintained” by the employer, and thereby
subject to ERISA’s coverage. See, e.g., Gruber v. Hubbard
Bert Karle Weber, Inc., 159 F.3d 780, 789 (3d Cir. 1998)
(noting that an employer “can establish an ERISA plan rather
easily” (quoting Credit Managers Ass’n of S. California v.
Kennesaw Life & Acc. Ins. Co., 809 F.2d 617, 625 (9th Cir.
1987))); Int’l Res., Inc. v. New York Life Ins. Co., 950 F.2d 294,
297 (6th Cir. 1991) (same). Unless the employer “is a mere

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31
particularly as the sole provider, and limits eligibility criteria,
these facts make the plan “a benefit closely tied to the
employer-employee relationship.” Anderson, 369 F.3d at 1265
(making this observation where an employer selected an
insurer as the sole long term disability plan offered and limited
eligibility to hourly employees); see also Butero, 174 F.3d at
1213–14 (finding endorsement where the employer picked the
insurer and deemed certain employees ineligible to
participate); Moorman, 464 F.3d at 1268 (finding endorsement
where the employer decided on at least one of the eligibility
terms and identified the plan in its employee handbook as part
of the company’s employee benefits). Thus, in Thompson, the
Sixth Circuit found sufficient employer involvement “where
the employer plays an active role in either determining which
employees will be eligible for coverage or in negotiating the
terms of the policy or the benefits provided thereunder.” 95
F.3d at 436.
This conclusion echoes across other circuits as well. See
Custer v. Pan American Life Ins. Co., 12 F.3d 410, 417 (4th
Cir. 1993) (ERISA plan existed where employer determined
benefits, negotiated terms of coverage, and paid premiums);
Gross v. Sun Life Assur. Co. of Canada, 734 F.3d 1, 10 (1st
Cir. 2013) (emphasizing that eligibility for a policy was not
only tied to employment at the company, but the company also
“determined which employees had access to that benefit.
Consequently, both in outward appearance and internally, [the
employer] played more than a bystander’s role”); Brundage-
advertiser who makes no contributions on behalf of its
employees,” the establishment requirement will be satisfied.
Gruber, 159 F.3d at 789 (quoting Credit Managers Ass’n, 809
F.2d at 625).

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32
Peterson, 877 F.2d at 511 (“An 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.”). In Johnson, the First Circuit found endorsement
lacking only where the employer “had no hand in drafting the
plan, working out its structural components, determining
eligibility for coverage, interpreting policy language,
investigating, allowing and disallowing claims, handling
litigation, or negotiating settlements.” 63 F.3d at 1136
(emphasis added).
Turning to the case at hand, the question of endorsement
is close. Lucasse’s letter to Dr. McCann regarding the RSDP
states, “[Provident] understand[s] your ability to participate in
this plan is limited by the fact that disposable income is
probably pretty tight. We have been able to mitigate this
problem by achieving a plan design and pricing structure
expressly for residents, which makes the premium affordable.”
Joint App. at 166. This suggests Henry Ford Hospital had no
involvement in determining the substance of Dr. McCann’s
supplemental insurance policy or in the RSDP’s
administration. Nonetheless, Dr. McCann has failed to
demonstrate that a reasonable employee would view the plan
merely as a third-party offering, and it appears that sufficient
indicia of endorsement are present to preclude application of
the safe harbor.
Several facts are of particular importance. First,
residents were not presented with a menu of options or free to
select any insurer. To the contrary, Henry Ford Hospital
selected Provident as the sole provider of supplemental
disability insurance for the RSDP. See McCann v. Unum

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33
Provident, 921 F. Supp. 2d 353, 368 (D.N.J. 2013). The
Hospital also acted to encourage enrollment in the RSDP and
expressed some judgment about the plan because its broker
explained Provident “is the industry’s leader in individual
disability coverage for physicians” and was “chosen by the
Henry Ford Medical Group to provide supplemental disability
insurance to Ford physicians.” Joint App. at 166. A reasonable
employee could conclude the Hospital was endorsing the plan
from this language.
Furthermore, the District Court found that the Hospital
determined eligibility for the RSDP.18 See McCann, 921 F.
Supp. 2d at 360. As noted, this is sufficient to compromise the
appearance of neutrality because the Hospital played a material
role in creating the RSDP. The District Court also found a
perception of endorsement “would rise from and be fostered by
the agreements repeatedly executed by [Dr.] McCann and the
Hospital, wherein the Hospital agreed to provide disability
insurance as part of its standard benefits package.” Id. at 368.
This finding goes to the core of endorsement’s purpose—that
the plan not be perceived as a benefit of employment.
18 At oral argument, Dr. McCann’s counsel contested the
origins of Dr. McCann’s policy and its relation to the RSDP.
See Transcript of Oral Argument at 6, 10–11, McCann v. Unum
Provident (No. 16-2014) (3d Cir. April 26, 2018); see also
Appellant’s Reply Br. at 26 (“The Policy was not part of a
program of benefits available to current Hospital employees or
of the RSDP.”). But counsel fails to point to any evidence in
the record which would suggest the District Court’s finding
that Dr. McCann was a participant in and a beneficiary of the
RSDP, see McCann, 921 F. Supp. 2d at 370, is clearly
erroneous.

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34
For these reasons, Dr. McCann fails to establish the safe
harbor’s third criterion and ERISA shall provide the governing
framework.
IV. Dr. McCann’s Claim for Total Disability
We now turn to the substance of Dr. McCann’s claim
for Total Disability. While ERISA governs Dr. McCann’s
supplemental coverage, both parties agree that Provident’s
decision to terminate Dr. McCann’s benefits must be reviewed
de novo. Where a plan administrator is vested with the
discretionary authority to construe the terms of a plan or
determine benefit eligibility, we review its decisions under an
arbitrary and capricious standard. See Firestone Tire & Rubber
Co. v. Bruch, 489 U.S. 101, 115, (1989). But where, as here,
such discretionary authority is lacking, our review is plenary.
Id.
In exercising this plenary review, our role “is to
determine whether the administrator . . . made a correct
decision.” Viera v. Life Ins. Co. of N. Am., 642 F.3d 407, 413
(3d Cir. 2011) (quoting Hoover v. Provident Life & Accident
Ins. Co., 290 F.3d 801, 808–09 (6th Cir. 2002)). Our review is
not colored by a presumption of correctness and we determine
whether the insured was entitled to benefits under the plain
terms of their policy. Id. at 414. As noted, Dr. McCann’s policy
defines “Total Disability” as being unable to perform “the
substantial and material duties of your occupation.” Joint App.
at 308. Dr. McCann’s claim for disability benefits accordingly
raises three questions: What was Dr. McCann’s “occupation”
at the time he became disabled? What were the “substantial and
material duties” of that occupation? And do Dr. McCann’s

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35
medical conditions prevent him from performing those duties?
We address these questions in turn.
A. Defining Dr. McCann’s Occupation
Beginning with the question of Dr. McCann’s
occupation, the relevant policy language states:
[Y]our occupation means the
occupation (or occupations, if
more than one) in which you are
regularly engaged at the time you
become disabled. If your
occupation is limited to a
recognized specialty within the
scope of your degree or license, we
will deem your specialty to be your
occupation.
Joint App. at 308.
In terminating Dr. McCann’s benefits, Provident
explained its initial payments were based on an incorrect
understanding of Dr. McCann’s occupation and that while “Dr.
McCann was hired by and listed by Holzer Clinic as an
Interventional Radiologist, his CPT codes clearly reflect[ed]
that, in the years prior to disability, Dr. McCann was practicing
primarily as a Diagnostic Radiologist.” Joint App. at 153. The
District Court agreed with this analysis, see McCann v. Unum
Provident, No. CV 11-3241 (MLC), 2016 WL 1161261, at *34
(D.N.J. Mar. 23, 2016), but Dr. McCann maintains the record
undisputedly shows his “‘recognized specialty’ is
interventional radiology, involving stressful, intrusive medical
procedures and weekend and night call.” Appellant’s Br. at 48.

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36
We therefore consider, in light of the policy’s definition,
whether Dr. McCann’s occupation is interventional radiology
or diagnostic radiology for purposes of evaluating his disability
claim.
As an initial matter, we address Provident’s contention
that our decision in Lasser v. Reliance Standard Life Insurance
Company, 344 F.3d 381 (3d Cir. 2003) should guide this
analysis. There, we considered the meaning of “regular
occupation” in an orthopedic surgeon’s disability insurance
policy and concluded “‘regular occupation’ is the usual work
that the insured is actually performing immediately before the
onset of disability.” Id. at 386. But this statement was
addressing the insurer’s decision to interpret “regular
occupation” based on a typical work setting for any employer
in the general economy. Id. at 385. We held that “[b]oth the
purpose of disability insurance and the modifier ‘his/her’
before ‘regular occupation’” made clear the analysis had to be
conducted based on the insured’s own occupation. Id. at 386.
No one disputes Dr. McCann’s own occupation is the relevant
scope of analysis. We are also mindful that Lasser, and other
cases cited by the parties, turn on the policy language specific
to those cases and are therefore of no application to Dr.
McCann’s specialty-specific policy.19
Turning to the policy language at issue here, we agree
that particularly the first part of the definition—defining
occupation as that “in which you are regularly engaged at the
19 For example, Lasser discusses the meaning of “regular
occupation” because the insured’s policy classified a claimant
as totally disabled when he was “[in]capable of performing the
material duties of his/her regular occupation.” 344 F.3d at 383.

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37
time you become disabled”—supports a practical assessment
of Dr. McCann’s pre-disability activities, similar to that in
Lasser. But importantly, this language precedes, and is
therefore qualified by, the concept that “your occupation [can
be] limited to a recognized specialty.” Joint App. at 308.
Because the record demonstrates diagnostic radiology was a
component of Dr. McCann’s responsibilities as an
interventional radiologist, we conclude Provident’s final
determination regarding Dr. McCann’s occupation was
incorrect.
First, from a formalistic perspective, it is undisputed
that Dr. McCann possesses the qualifications of an
interventional radiologist. He is certified in that specialty.20 Dr.
McCann was also hired by Holzer Clinic as one of three
interventional radiologists, and, in fact, would not have been
hired but for his ability to perform some interventional work.
Functionally, it is also clear from Dr. Long’s job
description, detailing Dr. McCann’s duties and
responsibilities, that Dr. McCann performed at least some
amount of interventional radiology, estimated at as much as 20
hours per week. The District Court focused its analysis on the
fact that “the diagnostic duties associated with his occupation
accounted for 91% of the procedures he performed each week
during the three and a half year period preceding [Dr.
20 Specifically, Dr. McCann’s Statement of Material Facts
describes his education as the “completion of a surgical
internship, four years of study as a diagnostic radiologist, and
board-certification as a diagnostic radiologist, followed by a
one-year interventional radiology fellowship program.” Joint
App. at 4053.

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38
McCann’s] application for disability leave.” McCann, 2016
WL 1161261, at *34 (internal quotations omitted). But we note
that a purely mechanical comparison of the number of
interventional procedures and diagnostic tasks fails to account
for the time dedicated to each type of work. Dr. Long explained
during Provident’s field visit that in the same amount of time
it can take to do an interventional procedure, e.g., an
angioplasty, he can probably read more than 10 MRIs.
Even accepting that diagnostic work accounted for the
bulk of Dr. McCann’s billing, the record makes clear that
interventional radiologists perform diagnostic radiology.
When asked whether Dr. McCann was hired as an
interventional radiologist or a diagnostic radiologist, Dr. Long
replied “[b]oth” and explained that interventional radiologists
do both things. Joint App. at 3148. The first CPT review
conducted by Provident produced a similar percentage ratio
between interventional procedures and diagnostic readings,
and these same percentages were used to support a conclusion
that Dr. McCann performed duties related to “Diagnostic &
Interventional Radiology prior to disability.” Joint App. at
1514. We also note the American Board of Radiology
recognizes a specialty in “Interventional Radiology and
Diagnostic Radiology” distinct from a specialty in “Diagnostic
Radiology.” See ABMS Guide to Medical Specialties 66–67
(2018), https://www.abms.org/media/176512/abms-guide-to-
medical-specialties-2018.pdf.
Thus, the interventional aspects of Dr. McCann’s
practice cannot be cast aside from the definition of his
occupation merely by focusing exclusively on the number of
“units” of work Dr. McCann billed. The policy explicitly
cabins the definition of “occupation” to an insured’s

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39
recognized medical specialty, and, in fact, this was a primary
selling point in Lucasse’s marketing materials.21 The letter
21Specifically, Lucasse’s letter stated:
[T]he definitions written in
disability policies are of utmost
importance, and may vary greatly.
We want to assure you that
Provident has achieved its position
by providing the best possible
definitions, and continually
updating to the industry’s highest
standards . . . .
The single greatest concern for a
physician is the definition of
disability. Unlike many
occupations, a doctor may become
disabled by an injury or illness that
would not preclude working in
another occupation. Your program
will state that you are disabled if
“you can not do the duties of your
occupation” without regard to your
ability to do any other. It further
states that your occupation is a
recognized medical specialty, with
its own specific duties. Thus, it is
possible for you to be disabled
within your specialty while you
can still be a physician.
This explanation of benefits is
offered to assure you that all of the

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40
represented that “your occupation is a recognized medical
specialty, with its own specific duties,” and explains “it is
possible for you to be disabled within your specialty while you
can still be a physician.” Joint App. at 168 (emphasis added).
The record reflects Dr. McCann was performing at least some
interventional procedures—procedures a diagnostic radiologist
would not be able to perform. Accordingly, we hold Dr.
McCann’s occupation to be an interventional radiologist for
purposes of assessing the merits of his claim.
B. Dr. McCann’s “Substantial and Material
Duties”
We next turn to Dr. McCann’s “substantial and material
duties,” having defined Dr. McCann’s occupation as his
specialty: interventional radiology. Provident again relies on
our decision in Lasser to argue that materiality is necessarily
derivative of the income earned from and the amount of time
spent performing a duty. Once again, we decline to apply
Lasser out-of-context to Dr. McCann’s specialty-specific
policy.
Furthermore, in Lasser we considered whether night
call and emergency surgeries were “material” to an orthopedic
surgeon’s occupation. We concluded yes, finding the district
court’s reasoning supported by comparing the insured’s pre-
disability earnings with his post-disability earnings from a
reduced schedule. See 344 F.3d at 387–88. But we also
considered the materiality question in the abstract and
elements of planning have been
addressed.
Joint App. at 166–168 (emphasis added).

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concluded those duties were material based, in part, on a labor
market survey the insurer had conducted. Id. Even if Lasser
were helpful to our analysis, therefore, it in no way suggests an
analysis of pre-and post-disability earnings is the only measure
of materiality.
On the record before us, we think Dr. McCann’s
“substantial and material duties” are established and include
both his ability to perform interventional procedures and his
ability to do so on nights and weekends.22 As noted, Dr.
McCann “would not have been hired by Holzer Clinic if he did
not perform some interventional radiology.” Joint App. at
3148. Dr. Long also explained during Provident’s field visit
that diagnostic radiology was evenly divided among the
practicing radiologists at Holzer and Dr. McCann’s
interventional responsibilities were “on top of” his “even
share” of diagnostic duties. Joint App. at 3149. As one of three
interventional radiologists, Dr. McCann was responsible for
performing all interventional procedures every third week.
Regarding on-call work, Dr. Long confirmed that
Holzer requires radiologists to perform on-call duty for
weekends, holidays, and emergency cases and “has never hired
a radiologist who has been unable to perform on-call work.”
Joint App. at 3152. When asked whether Holzer would
consider hiring Dr. McCann again, Dr. Long stated that Holzer
might, hypothetically, if he “could work as a diagnostic
22 Indeed, Provident’s counsel agreed at oral argument that
working night shifts and weekends is a substantial and material
duty of Dr. McCann’s occupation. See Transcript of Oral
Argument at 35, McCann v. Unum Provident (No. 16-2014)
(3d Cir. April 26, 2018).

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radiologist who could also perform on-call work.” Joint App.
at 3151 (emphasis added).
Provident and the District Court place significant
emphasis on Dr. McCann’s CPT codes and the fact that over
82% to 90% of his income was generated from performing
diagnostic radiology. Again, we note that Dr. McCann’s CPT
codes do not take into account that a single interventional
procedure can take significantly longer to perform than a
diagnostic procedure. And to the extent Dr. McCann’s income
was predominantly derived from his diagnostic work, dollar
value of billings is only one measure of “substantial and
material”—it does not eclipse all other aspects of Dr.
McCann’s occupation, particularly when Dr. McCann’s policy
defines his occupation as limited to his specialty. The record
makes clear that diagnostic radiology is one component of an
interventional radiologist’s specialty, but not the only
component. We will not define Dr. McCann’s occupation and
its “substantial and material duties” solely by counting up
billing units.
C. Dr. McCann’s Ability to Perform his
“Substantial and Material Duties”
One question remains: whether Dr. McCann’s medical
conditions prevented him from being able to perform the
substantial and material duties of his specialty, either by
rendering him physically unable or by so limiting his
availability that he was precluded from continuing his practice
as an interventional radiologist. On this question we find a
dispute of material fact, which we remand for the District Court
to consider.

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The record demonstrates some level of consensus on
this question. Dr. Davids concluded “the prognosis for
functional improvement is poor because it is difficult to
maintain [a] level of tight BP control while working in a
stressful occupation, such as interventional radiology.” Joint
App. at 1455. Dr. Parisi concluded “[i]f [Dr. McCann] is an
interventional radiologist it is reasonable that he would not be
able to perform some of the interventional activities.” Joint
App. at 2043. Dr. Lambrew similarly concluded McCann could
perform “[s]ustained, full time light work as a non-
interventional Radiologist,” Joint App. at 2619, and nurse
practitioner Loring’s notes suggest McCann “try to do just
regular radiology,” Joint App. at 2435.
But Dr. Sweeney’s most recent report concluded
“[t]here are no limitations on function supported” which
“would prevent Dr. McCann from resuming on a full-time
basis his previous occupation as an interventional and
diagnostic radiologist.” Joint App. at 3198-99. This raises
enough of a factual issue to warrant remand.
V. Dr. McCann’s Claim for Residual Disability
We also remand for the District Court to consider Dr.
McCann’s claim for Residual Disability. The court found this
argument untimely because the claim was filed after
Provident’s final determination and emphasized that to
consider Residual Disability in the first instance would “thwart
ERISA’s underlying objective to promote the exhaustion of
administrative remedies.” McCann, 2016 WL 1161261, at *35.
While the doctrine of exhaustion undoubtedly furthers
numerous sound policies, we think Dr. McCann’s failure to

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exhaust the Residual Disability claim can be excused in this
instance.
Exhaustion, in the ERISA context, is not a rule of
jurisdiction. See Metro. Life Ins. Co. v. Price, 501 F.3d 271,
279 (3d Cir. 2007). Rather, exhaustion is “a judicially-crafted
doctrine” placing “no limits on a court’s adjudicatory power.”
Id. While traditionally the exhaustion requirement is strictly
enforced, we have recognized an exception where “resort to the
administrative process would be futile.” Berger v. Edgewater
Steel Co., 911 F.2d 911, 916 (3d Cir. 1990); see also Price, 501
F.3d at 279 (“[T]he failure to exhaust will be excused in cases
where a fact-sensitive balancing of factors reveals that
exhaustion would be futile.”).
The principle of futility lends itself to this case.
Provident addressed Residual Disability in its December 2009
letter terminating benefits and in its September 2010 letter
denying Dr. McCann’s appeal. The 2009 letter states, for
example: “Based on our review of you [sic] medical conditions
we have determined that you are no longer Totally Disabled or
Residually Disabled in accordance with the terms of your
policy.” Joint App. at 124. Provident also explained:
Although you indicated that you
previously worked 60 hours per
week, your ability to work 50
hours per week would not be
expected to cause a reduction of
your monthly income of more than
20% as required by the terms of
Residual Disability. As such, you

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are not Residually Disabled in
accordance with the policy terms.
Joint App. at 126. In the 2010 letter, Provident continues to say
“it was determined [Dr. McCann] can perform the duties of his
occupation, and therefore, was not Totally or Residually
Disabled.” Joint App. at 149. Based on this language, Dr.
McCann could reasonably have been under the impression that
Provident was considering both types of disability claims in its
review or that raising a Residual Disability claim would be
futile.
Regarding ERISA’s underlying objectives, we have
recognized that exhaustion helps to reduce frivolous lawsuits,
promote consistent treatment of claims, and to minimize the
costs of settlement. See Prince, 501 F.3d at 279. Exhaustion
also “has the salutary effect of refining and defining the
problem for final judicial resolution.” Id. (internal quotation
marks and citation omitted). These objectives are important,
but Dr. McCann’s claim for Residual Disability is based on a
medical condition Provident has already considered and
approved for Total Disability and, as such, the traditional
purposes of exhaustion are less compelling here. Particularly
in light of Provident’s consideration of Residual Disability,
both in its initial determination and in response to Dr.
McCann’s appeal, we conclude the doctrine should not be
applied without regard to the particular facts of this case.
VI. Conclusion
For the foregoing reasons, we will affirm the District
Court’s January 31, 2013 determination as to ERISA’s

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applicability but will vacate its March 23, 2016 grant of
summary judgment for defendant-appellee and remand for
further proceedings consistent with this opinion.

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