In the recent case of Robinson v. Liberty Life Assur. Co., 2014 U.S. Dist. LEXIS 79366 (M.D. Pa. June 11, 2014) the court examined this issue in detail. In that case, the parties filed cross-motions for summary judgment regarding Plaintiff’s eligibility for long-term disability benefits under a policy governed by ERISA. The court denied Plaintiff’s motion and granted Defendant’s finding the existence of substantial record evidence supporting Defendant’s denial of benefits and held that Defendant did not act arbitrarily and capriciously. One particularly interesting issue in this matter involved Plaintiff’s challenge of the earnings test performed by Defendant’s vocational consultant. Defendant argued that Plaintiff had waived any argument protesting the earnings associated with the identified occupations because she failed to raise such assertion during the administrative review. Though the Court ultimately examined the merits of Plaintiff’s contention, it is noteworthy that the Court did so only after stating it was arguable that Plaintiff had, in fact, waived her claim regarding wage calculation by failing to raise it during the administrative proceeding. Certainly any claimant should be careful to evaluate and dispute, if necessary, any wage calculations or earnings tests during the administrative process and the lawyers at Burke Harvey are trained to recognize and raise this potential issue.