223 F.3d 533 (7th Cir. 2000)
VICKIE L. POSTMA, Plaintiff-Appellee,  Cross-Appellant,v.PAUL REVERE LIFE INSURANCE COMPANY,  a Massachusetts corporation, Defendant-Appellant,  Cross-Appellee.
Nos. 99-2627 & 99-2652
In the  United States Court of Appeals  For the Seventh Circuit
Argued February 9, 2000Decided August 7, 2000

Appeals from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 95 C 6575--Wayne R. Andersen, Judge.[Copyrighted Material Omitted]
Before BAUER, EASTERBROOK and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge.


1
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.


2
* BACKGROUND

A.  Facts
1.

3
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.


4
While at CPG, Ms. Postma enrolled in a long term  disability insurance program provided by Paul  Revere.

2.

5
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.


6
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.


7
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.


8
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.


9
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.


10
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).


11
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.


12
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

13
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.


14
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.

15
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.


16
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


17
(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.


18
Ed Miniat, Inc. v. Globe Life Ins. Group, Inc.,  805 F.2d 732, 738 (7th Cir. 1986).


19
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


20
(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


21
(1) No contributions are made by an employer or  employee organization;


22
(2) Participation in the program is completely  voluntary for employees or members;


23
(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


24
(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.


25
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.


26
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.

27
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).


28
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.


29
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


30
1. because of injury or sickness, you cannot  perform the important duties of your own  occupation;


31
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


32
3. you do not work at all.


33
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.


34
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.


35
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.


36
"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.


37
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

38
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.

39
Paul Revere's LTD policy states that, to be  totally disabled, the claimant must show


40
1. because of injury or sickness, you cannot  perform the important duties of your own  occupation;


41
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


42
3. you do not work at all.


43
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.


44
The applicable provision for Ms. Postma then  became the clause for residual disability. The  policy explains the requirements for residual  disability as follows


45
Residually disabled or residual disability means,  after a continuous period of disability which  lasts at least as long as your elimination  period[2]


46
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


47
(B) you work at your own or some other occupation  on less than a full-time basis; and


48
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.


49
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.


50
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.


51
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.


52
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.


53
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.


54
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

55
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

56
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


Notes:


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.


