In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-2627 & 99-2652

VICKIE L. POSTMA,

Plaintiff-Appellee,
Cross-Appellant,

v.

PAUL REVERE LIFE INSURANCE COMPANY,
a Massachusetts corporation,

Defendant-Appellant,
Cross-Appellee.



Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 C 6575--Wayne R. Andersen, Judge.


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



  Before BAUER, EASTERBROOK and RIPPLE, Circuit Judges.

  RIPPLE, Circuit Judge. Vickie Postma injured her
back while at work for her employer, Computer
Power Group ("CPG"). She thereafter filed a claim
for disability benefits with her insurer, Paul
Revere Insurance Company ("Paul Revere"). Paul
Revere denied her claim for disability benefits
and, when she appealed, continued to deny her
claim despite additional evidence provided by
her. In response to Paul Revere’s repeated
refusal to pay disability benefits, Ms. Postma
filed this action in the district court. The
district court granted summary judgment for Ms.
Postma; Paul Revere appeals that decision. For
the reasons set forth below, we affirm the
decision of the district court, although on
alternative grounds.

I
BACKGROUND
A. Facts
1.
   Ms. Postma began working as a computer
consultant for the Computer Power Group in 1989.
As a consultant for CPG, she traveled--by car,
train, and airplane--to the places of business of
her clients. The work supplies she brought to her
clients included boxes of training manuals and
supplies, reference materials, and reports. Her
job involved a combination of both light and
medium lifting: The "light lifting" encompassed
the frequent lifting and carrying of objects
weighing between 10 and 20 pounds, and the
"medium lifting" involved the lifting of
materials weighing between 25 and 50 pounds.
R.29, Ex.21 at 6. At her clients’ work sites, she
sometimes needed to carry these boxes up and down
stairs. Ms. Postma’s job duties also required her
to walk and to stand for significant periods of
time. Some days, she reported, she needed to
stand between 8 and 9 hours.

  While at CPG, Ms. Postma enrolled in a long term
disability insurance program provided by Paul
Revere.

2.

  Ms. Postma, while traveling to visit a client on
October 2, 1991, boarded a train and injured her
back when she tried to lift her briefcase. She
consulted a chiropractor, but her condition did
not improve. She then visited an orthopedic
surgeon who diagnosed a herniated lumbar disc.
This physician performed surgery, but Ms. Postma
continued to experience pain, and she did not
return to work at CPG.

  On April 9, 1992, CPG terminated Ms. Postma. It
had held her position open for the six-month
medical leave period required by company policy
and then, because she had not returned to work,
discharged her.

  Ms. Postma then visited a different orthopedic
surgeon, Dr. Gutierrez. He diagnosed a recurrent
herniated lumbar disc and performed a second
surgery. After this surgery, she did not report
feeling pain. On September 9, 1992, Dr. Gutierrez
released Ms. Postma to return to work but placed
restrictions on her work activities. She then
attempted to find a position with a different
employer that involved the same duties as her
position at CPG but that could accommodate her
medical restrictions. Even though she sent over
500 resumes to different companies and
interviewed over 15 times, she did not secure
employment.

  In March, Ms. Postma again visited Dr.
Gutierrez; however, this visit stemmed from neck
pain she was experiencing. At that time, he
reported that she was not suffering pain in her
back. He also advised her to return to him on an
"as needed" basis. R.35, Ex.F at 22.

  Starting on April 26, 1993, and continuing until
June 11, 1993, Ms. Postma worked for Highland
Park Animal Hospital as a veterinary assistant.
While at the animal hospital, she worked subject
to Dr. Gutierrez’s restrictions. On June 12,
however, she was admitted to a hospital for
reinjuring her initial back injury. After this
date, Ms. Postma’s back injury again prevented
her from returning to work at all.

  Later that year, Ms. Postma notified Paul Revere
that she intended to file a claim for disability
benefits. She thereafter submitted to Paul Revere
her medical records, which included Dr.
Gutierrez’s attending physician statement. Dr.
Gutierrez’s statement indicated that Ms. Postma
had been unable to work in her occupation at CPG
from October 1991 to October 1993 (the date of
his statement).

  After reviewing Ms. Postma’s file, Paul Revere
denied her claim for disability benefits because
it opined that (1) her injury did not prevent her
from performing her previous occupation’s
important duties, (2) she was not under the
regular care of a physician, and (3) her
termination from CPG ended its obligation to pay
her benefits. She appealed Paul Revere’s initial
decision. In the process, she submitted the
deposition of her manager at CPG, John Kinstler,
which stated that her medical restrictions
prevented her from fulfilling her job duties.
Paul Revere, however, again denied Ms. Postma’s
claim for benefits.

  Ms. Postma later received disability benefits
from the Social Security Administration and
settled her worker’s compensation award. Both of
these decisions and the evidence supporting them
were provided to Paul Revere; however, it
continued to deny her claim for benefits.

B.   Proceedings in the District Court

  Ms. Postma then filed this action against Paul
Revere for breach of contract and for breach of
the implied covenant of good faith and fair
dealing. She requested a declaratory judgment
that Paul Revere must pay her benefits, and she
requested attorney’s fees.

  The district court held that Ms. Postma was
entitled to benefits for total disability from
October 2, 1991, (the date of her initial injury)
to April 26, 1993, (the date she started working
at the animal hospital)./1 Also, it stated that
she was under a residual disability from April
26, 1993, to June 11, 1993, while she worked at
the animal hospital. Finally, the court
determined that she was totally disabled again
following June 11, 1993 (the date she reinjured
her back).
II
DISCUSSION
A. Standard of Review
1.

  The parties dispute whether Paul Revere’s long
term disability ("LTD") plan is governed by the
Employee Retirement Income Security Act of 1974
("ERISA"), 29 U.S.C. sec. 1000 et seq. Ms. Postma
argues that the insurance policy was not an ERISA
plan and that we therefore should review Paul
Revere’s decision to deny her benefits de novo.
The district court held, however, that the policy
was an ERISA plan.

  The district court’s finding that this plan is
an ERISA plan is a finding of fact that is
reversed only if it is clearly erroneous. See
Zavora v. Paul Revere Life Ins. Co., 145 F.3d
1118, 1120 (9th Cir. 1998). We previously have
explained that a welfare plan requires five
elements:

(1) a plan, fund, or program, (2) established or
maintained, (3) by an employer or by an employee
organization, or by both, (4) for the purpose of
providing medical, surgical, hospital care,
sickness, accident, disability, death,
unemployment or vacation benefits, apprenticeship
or other training programs, day care centers,
scholarship funds, prepaid legal services or
severance benefits, (5) to participants or their
beneficiaries.

Ed Miniat, Inc. v. Globe Life Ins. Group, Inc.,
805 F.2d 732, 738 (7th Cir. 1986).

  According to the district court, the parties
here dispute only whether the plan was
"established or maintained" by "an employer."
R.52 at 8. An employer establishes or maintains a
plan if it enters a contract with the insurer and
pays its employees’ premiums. See Brundage-
Peterson v. Compcare Health Serv. Ins. Corp., 877
F.2d 509, 511 (7th Cir. 1989). To help determine
whether an insurance plan falls under ERISA, the
Department of Labor’s regulations, through a
"safe harbor" provision, provide a guideline for
when a plan does not fall under ERISA. The
regulation that Ms. Postma claims is applicable
to her case is the following:

(j) Certain group or group-type insurance
programs. For purposes of Title I of the Act and
this chapter, the terms "employee welfare benefit
plan" and "welfare plan" shall not include a
group or group-type insurance program offered by
an insurer to employees or members of an employee
organization, under which
(1) No contributions are made by an employer or
employee organization;

(2) Participation in the program is completely
voluntary for employees or members;

(3) The sole functions of the employer or employee
organization with respect to the program are,
without endorsing the program, to permit the
insurer to publicize the program to employees or
members, to collect premiums through payroll
deductions or dues checkoffs and to remit them to
the insurer; and

(4) The employer or employee organization receives
no consideration in the form of cash or otherwise
in connection with the program, other than
reasonable compensation, excluding any profit,
for administrative services actually rendered in
connection with payroll deductions or dues
checkoffs.

29 C.F.R. sec. 2510.3-1(j). This court has held
that "[a]n employer who creates by contract with
an insurance company a group insurance plan and
designates which employees are eligible to enroll
in it is outside the safe harbor created by the
Department of Labor regulation." Brundage-
Peterson, 877 F.2d at 511. In Brundage-Peterson,
we also explained that, when the employer helps
defray the cost of the employee’s insurance, it
is even clearer that the plan falls outside of
the safe harbor. See id.

  The district court determined that the plan at
issue here did not fit within the Department of
Labor regulations’ safe harbor. Although the
employees at CPG originally covered the costs of
the LTD policy, CPG made LTD benefits a standard,
rather than optional, benefit for all employees
in February 1992 and thus began paying the
premiums. The court also explained that, because
CPG purchased the plan and offered it to its
employees and because it started paying the
premiums while Ms. Postma was still an employee
(although on medical leave at the time), CPG
established or maintained the benefit plan. The
court’s finding that CPG maintained its benefit
plan for its employees is not clearly erroneous.
CPG did pay its employees’ premiums while Ms.
Postma was still an employee. Moreover, CPG began
these payments before she made her claim for
benefits to Paul Revere. We note, further, that,
throughout its existence, the disability policy
was part of a broader benefits package maintained
by CPG for its employees. Many aspects of that
plan were financed in whole or in part by CPG.
For purposes of determining whether a benefit
plan is subject to ERISA, its various aspects
ought not be unbundled. See Gaylor v. John
Hancock Mut. Life Ins. Co., 112 F.3d 460, 463
(10th Cir. 1997); Glass v. United of Omaha Life
Ins. Co., 33 F.3d 1341, 1345 (11th Cir. 1994);
Smith v. Jefferson Pilot Life Ins. Co., 14 F.3d
562, 567 (11th Cir. 1994). We note, moreover,
that CPG "performed all administrative functions
associated with the maintenance of the Policy,"
and that, consequently, "CPG employees received
discounts on the policy premiums by virtue of the
fact that they were involved in a group policy
through CPG." R.28 at 4. See New England Mut.
Life Ins. Co. v. Baig, 166 F.3d 1, 4 (1st Cir.
1999) (stating that "finding [an ERISA] plan
requires that the employer have at least some
minimal, ongoing administrative scheme or
practice" (citations and quotation marks
omitted)). Therefore, we uphold the district
court’s finding that the Paul Revere insurance
plan is subject to ERISA.

2.

  Having decided that Paul Revere’s LTD plan is
subject to ERISA, we now must decide the
appropriate standard for reviewing Paul Revere’s
decision to deny benefits. The Supreme Court set
forth the applicable basic rule in Firestone Tire
& Rubber Co. v. Bruch, 489 U.S. 101 (1989). In
Firestone, the Court explained that de novo
review of an ERISA plan administrator’s
determination to deny benefits is the default
rule "unless the benefit plan gives the
administrator or fiduciary discretionary
authority to determine eligibility for benefits
or to construe the terms of the plan." Id. at
115. "Where a plan confers discretionary power on
the plan administrator, the deferential
’arbitrary and capricious’ standard governs."
Wilczynski v. Kemper Nat’l Ins. Cos., 178 F.3d
933, 934 (7th Cir. 1999); see also Ross v.
Indiana State Teacher’s Ass’n Ins. Trust, 159
F.3d 1001, 1008-09 (7th Cir. 1998), cert. denied,
119 S. Ct. 113 (1999); Hightshue v. AIG Life Ins.
Co., 135 F.3d 1144, 1147 (7th Cir. 1998).

  To determine whether a plan grants its
administrator discretion, we must look to the
language of the plan. See Herzberger v. Standard
Ins. Co., 205 F.3d 327, 329 (7th Cir. 2000);
Trombetta v. Cragin Fed. Bank for Sav. Employee
Stock Ownership Plan, 102 F.3d 1435, 1437-38 (7th
Cir. 1996). Ms. Postma claims that the policy did
not reserve discretion in Paul Revere because the
contract defined "disability" objectively. The
district court, however, determined that the plan
granted Paul Revere discretion. We review the
district court’s determination de novo. See
Hightshue, 135 F.3d at 1147. Because we do not
believe that the plain language of the plan
grants discretion to Paul Revere as its
administrator, we cannot accept the district
court’s determination and, therefore, hold that
the appropriate standard of review is de novo.

  According to the plan, for a claimant to show
that she is disabled, she must provide proof that
she is receiving a doctor’s care. The plan states
in relevant part:

Totally disabled from your own occupation or
total disability from your own occupation means:

1. because of injury or sickness, you cannot
perform the important duties of your own
occupation;

2. you are receiving Doctor’s Care. We will waive
this requirement if we receive written proof
acceptable to us that further Doctor’s Care would
be of no benefit to you; and

3. you do not work at all.

R.6, Ex.A at 13 (emphasis added). The district
court concluded that the ability of Paul Revere
to waive the requirement of a doctor’s care, if
it received proof "acceptable to us," granted
Paul Revere discretion to interpret the entire
policy. However, a claimant does not need to
submit proof acceptable to Paul Revere unless she
is seeking a waiver. In this context, the
"acceptable to us" language certainly does not
inform a reasonable reader of the Paul Revere
policy that the administrator has discretion on
the ultimate issue of whether a claimant is
disabled. Indeed, the placement of such language
only in the waiver provision makes such a reading
of the entire disability provision so awkward as
to be implausible. A determination by an insurer
that an element of disability may be waived
differs fundamentally from a finding that the
requirements necessary to qualify for disability
have been satisfied. The waiver provision is
applicable to only one of the three requirements
for a disability. If a claimant satisfies all
three requirements for disability, she does not
even need to seek Paul Revere’s approval for a
waiver. Therefore, because the language granting
discretion is only in the clause pertaining to a
waiver, we must consider this language
insufficient to grant the administrator
discretion.

  The district court also noted that the plan
requires a claimant to provide medical evidence
acceptable to Paul Revere to prove eligibility
for insurability. As the plan states, "EVIDENCE OF
INSURABILITY means proof given to us that an employee
is insurable. This proof must be based on medical
information and must be acceptable to us." R.6,
Ex.A at 3. Eligibility for insurance, however,
clearly is distinguishable from eligibility for
benefits. Once the claimant submits proof of
eligibility for insurance and the administrator
determines that she is eligible, the
administrator does not have discretion, based on
that provision, to deny benefits. The two
provisions are completely separate, and we hold
that the discretion to determine eligibility for
insurance does not grant the administrator
discretion to determine eligibility for benefits.
  Finally, Paul Revere argues that language in the
plan pertaining to the proof of loss that a
claimant must submit to Paul Revere is sufficient
to grant Paul Revere discretion in determining
whether to grant benefits. The relevant language
states: "Written proof should establish facts
about the claim such as occurrence, nature and
extent of the disability, injury or sickness or
the loss involved." R.6, Ex.A at 39. Also, "[w]e
have the right to require additional written
proof to verify the continuance of any
disability. We may request this additional proof
as often as we feel is necessary, within reason."
Id. at 40. Finally, the plan explains that "[w]e
have the right to require written proof of
financial loss. This includes, but is not limited
to: . . . any other proof we may reasonably
require. . . . Payment of benefits may be
contingent upon receipt of satisfactory proof of
financial loss." Id. at 41.

  "Proof of loss" language is standard insurance
contract language. See Herzberger, 205 F.3d at
332. It does not automatically grant discretion;
instead, it is the means by which the claimant
submits a claim to the insurer. As this circuit
recently held, language pertaining to "proof of
loss," without more, is insufficient to confer
discretion. See id. In Herzberger, the two ERISA
plans used language such as "determine," "proof,"
and "satisfactory proof." We held that

the mere fact that a plan requires a
determination of eligibility or entitlement by
the administrator, or requires proof or
satisfactory proof of the applicant’s claim, or
requires both a determination and proof (or
satisfactory proof), does not give the employee
adequate notice that the plan administrator is to
make a judgment largely insulated from judicial
review by reason of being discretionary.

Id. Paul Revere’s LTD plan does not contain any
language, independent of typical policy terms
that require proof of disability, to indicate
that it intended to reserve discretion in itself.
We therefore conclude that the proof of loss
language in this policy does not confer
discretion on Paul Revere.

  Because Paul Revere’s insurance plan does not
grant Paul Revere the discretion to determine a
claimant’s eligibility for benefits, we conclude
that the appropriate standard for our review of
Paul Revere’s decision to deny benefits is de
novo.

B.   The Disability Claim

  The question remains whether Paul Revere
correctly denied Ms. Postma’s application for
disability benefits. The district court,
employing the more deferential arbitrary and
capricious standard of review, refused to uphold
Paul Revere’s decision to deny Ms. Postma
disability benefits. Although we disagree with
the district court’s determination on the
appropriate standard of review, we uphold the
grant of summary judgment for Ms. Postma because
it is clear that, when the appropriate de novo
standard is employed, she has presented
sufficient proof of her disability and,
therefore, that she is entitled to disability
benefits from Paul Revere.

1.

  Paul Revere’s LTD policy states that, to be
totally disabled, the claimant must show:

1. because of injury or sickness, you cannot
perform the important duties of your own
occupation;

2. you are receiving Doctor’s Care. We will waive
this requirement if we receive written proof
acceptable to us that further Doctor’s Care would
be of no benefit to you; and

3. you do not work at all.

R.6, Ex.A at 13. Ms. Postma clearly met the
requirements for total disability after she
injured her back: She was unable to work at all
and therefore unable to perform the important
duties of her occupation. Once Dr. Gutierrez
released her to return to work, however, the
provision for total disability no longer applied.
The existence of the work release indicated that,
as of September 9, 1992, Ms. Postma could perform
at least some, although not all, of the duties of
her occupation.

  The applicable provision for Ms. Postma then
became the clause for residual disability. The
policy explains the requirements for residual
disability as follows:
Residually disabled or residual disability means,
after a continuous period of disability which
lasts at least as long as your elimination
period[/2]:

1. (A) you are prevented, by the same injury or
sickness which caused your disability, from
performing one or more of the important duties of
your own occupation; or

(B) you work at your own or some other occupation
on less than a full-time basis; and

2. you are receiving Doctor’s Care. We will waive
this requirement if we receive written proof
acceptable to us that further Doctor’s Care would
be of no benefit to you; and

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

R.6, Ex.A at 14. Although Paul Revere admits that
Ms. Postma was totally disabled until she
received her work release, it claims that her
work release demonstrates that she was no longer
disabled./3 Ms. Postma did not meet the
requirements for total disability after her work
release, but the question remains whether she met
the requirements for residual disability. As long
as Ms. Postma was continuously disabled--either
totally or residually--between her work release
(September 9, 1992) and the date she reinjured
her back (June 11, 1993), when she again could
not work at all, she is entitled to disability
benefits for the entire time following her
initial back injury.

  Ms. Postma may satisfy the first element for
residual disability by showing that she cannot
perform one or more of the important duties of
her occupation at CPG. As a consultant for CPG,
Ms. Postma had traveled by car, train, and
airplane to her clients’ businesses carrying
boxes of supplies. She frequently had to lift
materials weighing between 10 and 20 pounds and
often had to lift materials weighing between 25
and 50 pounds. Her job duties also had required
her to walk and to stand for significant periods
of time. Some days, she reported, she needed to
stand between 8 and 9 hours. The staffing manager
at CPG, John Kinstler, also explained that, as
part of her job responsibilities, Ms. Postma
regularly had to lift objects that weighed more
than 10 pounds, to drive for over 30 minutes, to
kneel, to squat, and to bend. Dr. Gutierrez’s
work release for Ms. Postma listed the activities
that she could not perform, including: not
lifting more than 10 pounds, not driving for more
than 30 minutes, not twisting, not squatting, not
bending, not kneeling, and not doing any other
physical activity that could injure her back.
Kinstler explained that these medical
restrictions prevented Ms. Postma from performing
her job responsibilities./4 Thus, due to her
medical restrictions, we must conclude that Ms.
Postma was unable to perform one or more of the
important duties of her occupation at CPG even
after her work release and even after she began
working at the animal hospital.

  After Ms. Postma found employment at the animal
hospital, she worked subject to Dr. Gutierrez’s
medical restrictions. These medical restrictions
again demonstrate that she was prevented by her
back injury from performing one or more of the
important duties of her occupation at CPG. Dr.
Gutierrez’s attending physician statement further
clarified that Ms. Postma was unable to perform
her occupation at CPG from October 1991 (the date
of her initial injury) through October 1993 (the
date of his report after her reinjury).
Therefore, Ms. Postma satisfies the first element
of residual disability beginning on the date of
her work release and continuing until she
reinjured her back.

  The next element that Ms. Postma must satisfy is
the requirement that she receive a doctor’s care.
The policy defines doctor’s care as "the regular
and personal care of a Doctor which under
prevailing medical standards, is appropriate for
the condition causing the disability." R.6, Ex.A
at 15. Dr. Gutierrez stated that he provided the
appropriate doctor’s care for Ms. Postma’s back
injury, and, because Paul Revere did not provide
evidence to show that Dr. Gutierrez’s care did
not meet prevailing medical standards, we hold
that she was under a doctor’s care and that she
satisfies this element for disability.

  Finally, Ms. Postma must have earned less than
80% of her original income at CPG. While she was
seeking employment after she received her work
release, Ms. Postma clearly made less than 80% of
her prior income because she did not work at all.
Also, after she began working at the animal
hospital, the parties do not dispute that she
received less than 80% of the income she received
while employed as a consultant for CPG. Thus, she
meets the final element of residual disability
under the policy.

  Because Ms. Postma can satisfy the plan’s
requirements for residual disability from the
time of her work release on September 9, 1992,
until her reinjury on June 11, 1993, and, because
Paul Revere concedes that she can meet the
elements of total disability from October 2,
1991, to September 9, 1992, and again after June
11, 1993, we hold that Ms. Postma should be
awarded disability benefits.
C.   Attorneys’ Fees

  Having determined that the plaintiff’s action
was governed by ERISA, the district court
correctly acknowledged that it had discretion to
award attorneys’ fees to the prevailing party.
See 29 U.S.C. sec. 1132(g); see also Trustmark
Life Ins. Co. v. University of Chicago Hosp., 207
F.3d 876, 884 (7th Cir. 2000). We also believe
that the district court was correct in its
determination that, although Ms. Postma did not
prevail on the threshold question of ERISA
preemption, she did prevail on the ultimate
question of whether she was owed disability
payments from Paul Revere. Therefore, she should
be considered the "prevailing party" for the
purpose of awarding attorneys’ fees. There is a
"modest presumption" that a prevailing party is
entitled to her attorneys’ fees; however, "a
court may decline to award fees and costs if it
finds that: (1) the losing party’s position had a
reasonable or solid basis in law and facts; or
(2) special circumstances make an award unjust."
Harris Trust & Sav. Bank v. Provident Life &
Accident Ins. Co., 57 F.3d 608, 617 (7th Cir.
1995) (citations and quotation marks omitted). We
cannot say that the district court abused its
discretion in concluding that Paul Revere’s
denial of benefits was not substantially
justified under the law as applied to the facts
of this case. See Production & Maintenance
Employees’ Local 504 v. Roadmaster Corp., 954
F.2d 1397, 1405 (7th Cir. 1992)./5 Accordingly,
we shall not disturb its judgment in this regard.

Conclusion

  For the foregoing reasons, we affirm the
decision of the district court to grant Ms.
Postma’s motion for summary judgment. Ms. Postma
may recover her costs in this court. Ms. Postma
also may recover her attorneys’ fees for this
appeal by filing with the district court a
statement of reasonable attorneys’ fees within 14
days of the issuance of this court’s mandate.

AFFIRMED


/1 The district court, in its initial order,
identified the applicable dates as October 2,
1991, and April 26, 1993. However, in its
subsequent order, without explanation, it used
the dates of October 1, 1991, and April 27, 1993.
Because both the parties and the record indicate
that the dates of October 2, 1991, and April 26,
1993, are the correct dates, we shall use those
dates as the applicable ones.
/2 An elimination period is the length of time a
claimant must wait before benefits begin. Ms.
Postma’s elimination period was 90 days. There is
no dispute that she was continuously disabled for
the 90 days of her elimination period.

/3 Paul Revere also argues that Ms. Postma’s
disability benefits should have ceased as soon as
she was terminated by CPG. However, the policy
clarifies that, as long as a claimant’s
disability continues, she is entitled to
benefits. Because we hold that Ms. Postma was
disabled continuously by her back injury, from
October 1991 until at least the time when she
filed this lawsuit, her benefits continued
despite the fact that she no longer worked for
CPG. If insurance benefits ended as soon as a
claimant stopped working for her original
employer, then the residual disability provision,
which allows the disabled claimant to work at a
different job and still receive benefits, would
be superfluous.

/4 Although Kinstler stated that CPG would have been
willing to provide accommodations for Ms.
Postma’s medical restrictions, he also admitted
that CPG would need to consult with the clients
Ms. Postma would work with before it could commit
to accommodating her restrictions because her
accommodations would require assistance from her
clients. He also conceded that some clients might
not want to assist CPG and Ms. Postma in
accommodating her.

/5 The district court also acknowledged that our
circuit on occasion has employed another test:
(1) the degree of the offending parties’
culpability or bad faith; (2) the degree of the
ability of the offending parties to satisfy
personally an award of attorneys’ fees; (3)
whether or not an award of attorneys’ fees would
deter other persons acting under similar
circumstances; (4) the amount of benefit
conferred on members of the [benefits] plan as a
whole; and (5) the relative merits of the
parties’ positions.

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