Meyers v. Sheet Metal Workers Local 73 Pension & Welfare Fund et al
Filing
40
Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 2/27/2015. Mailed notice (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KIRK MEYERS,
Plaintiff,
v.
SHEET METAL WORKERS’ LOCAL
NO. 73 PENSION FUND,
Defendant.
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No. 13 C 7045
MEMORANDUM OPINION AND ORDER
Kirk Meyers (“Meyers”) has sued the Sheet Metal Workers’
Local No. 73 Pension Fund (“Fund”) under the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. §
1132(a)(1)(B), to recover benefits allegedly owed to him under a
disability pension plan.
The parties have filed cross motions for summary judgment.
I grant Meyers’s motion and deny the Fund’s cross motion for the
reasons stated below.
I.
At all relevant times, Meyers was a member of the Sheet
Metal Workers’ International Association, Local Union No. 73
(“Union”).
Since 1985, Meyers has performed sheet metal work
for several employers who were contractually required to
contribute to the Fund based on the number of hours he worked.
1
The Fund, in turn, administers the Sheet Metal Workers Local No.
73 Pension Plan (“Plan”).
Among other benefits, the Plan
provides disability pensions to participants who have earned a
sufficient number of credits.
Meyers could earn up to one
pension credit each calendar year if he worked at least 1,200
hours for contributing employers.
He could also receive up to
two pension credits for any disability arising in covered
employment for which he received workers’ compensation benefits.
On September 14, 2005, while working for a contributing
employer, Meyers’s right foot was crushed by a 4,000 pound lift
driven by another employee.
After the injury, Meyers continued
to work for contributing employers until December 2005.
59.
R. 558-
He stopped working in December 2005 and remained off work
until April 2006 because of his injury.
R. 559.
Meyers
received workers’ compensation benefits during this four to five
month period, for which he received 760 hours or seven-twelfths
of a pension credit.
Id.
Meyers resumed working for contributing employers in April
2006 and earned a full pension credit in 2006 and 2007.
59.
R. 558-
In 2008, however, Meyers earned no pension credit because
he worked only 70.5 hours for contributing employers.
R. 559.
His only other period of covered employment was in February 2009
when he worked 107.5 hours, which was enough to earn one-twelfth
of a pension credit.
Id.
2
In July 2008, as his hours of covered employment were
dwindling, Meyers applied for a disability pension based on the
injuries he sustained in September 2005.
Section 3.9 of the
Plan provides that:
(a)
A Participant shall be eligible for a Disability
Pension if he meets the following requirements:
(i)
(ii)
He has at least 10 Pension Credits of
which at least 4 were earned during
the Contribution Period;
(iii)
He earned at least 1/2 Pension Credit
in Covered Employment during the
Contribution
Period
within
the
twelve-month
period
immediately
preceding the time he became Totally
and Permanently Disabled; [and]
(iv)
R. 627.
He becomes
Disabled;
Totally
and
Permanently
After January 1, 1990, he has not at
any time performed any employment in
the
Sheet
Metal
Industry
at
a
position not covered by a Collective
Bargaining
Agreement
between
the
Union and the Employee.
Only the first and third requirements are at issue in
this case.
In order to determine whether a pension applicant is
“totally and permanently disabled,” the Plan requires applicants
to “submit to an examination by a competent physician or
physicians selected by the Trustees.”
R. 629.
The Fund
selected Dr. Steven DeAngeles, M.D., to examine Meyers in July
2008.
After acknowledging Meyers’s complaints about persistent
3
pain in his right foot, Dr. DeAngeles stated, “I don’t doubt the
patient’s description of his pain but I was unable to
objectively identify a cause for this pain.”
Pl.’s Ex. D.
Therefore, in Dr. DeAngeles’s opinion, Meyers was not totally
and permanently disabled.
Id.
An initial review committee denied Meyers’s pension
application in August 2008.
Meyers appealed the committee’s
decision to the Fund’s Board of Trustees (“Trustees”), which was
comprised of three Union representatives and three employer
representatives.
The Trustees rejected Meyers’s appeal in
November 2008 because a recent functional assessment showed that
he could perform work at the medium to heavy physical demand
level, which included sheet metal work.
See Pl.’s Ex. C.
Meyers declined to seek judicial review of the Trustees’
decision.
In April 2011, over two years after he last performed sheet
metal work, Meyers reapplied for a disability pension.
Meyers
identified September 2005 as the date when he first became
disabled with complex regional pain syndrome (“CRPS”). 1
1
R. 555.
Complex regional pain syndrome that does not involve nerve
damage is known as Type 1 CRPS, “reflex sympathetic dystrophy
syndrome,” or “RSD.” See Complex Regional Pain Syndrome, Mayo
Clinic, http://www.mayoclinic.org/diseases-conditions/complexregional-pain-syndrome/basics/causes/con-20022844 (last visited
Feb. 17, 2015).
4
In support of his application, Meyers submitted his work history
and the six medical records:
1. a May 27, 2008 letter from Dr. Tariq Malik, M.D., of the
University of Chicago Hospitals in which he diagnosed
Meyers with “right foot neuropathic pain versus RSD” and
“right foot neuropathic pain versus CRPS” (R. 562);
2. a July 23, 2009 report from Dr. Rodney Stuck, D.P.M., of
Loyola University in which he reached the same diagnoses
as Dr. Malik (R. 563);
3. an August 31, 2010 functional capacity evaluation by
Elizabeth Patterson, a licensed athletic trainer,
concluding that Meyers could perform jobs at the medium
physical demand level (R. 564-72);
4. a March 12, 2011 letter from Susan Entenberg, a certified
rehabilitation counselor, concluding that Meyers could
not perform the duties of a sheet metal work because he
could not stand, walk, or maintain his balance for
prolonged periods of time or climb frequently (R. 573-4)
5. a March 21, 2011 letter from Dr. O. Ramsey, M.D.,
concluding that Meyers experienced a “significant amount
of pain” while performing medium to heavy duty work and
opining that his chances of resuming sheet metal work
were “very slim due to his pain and limited endurance”
(R. 575); and
6. an April 12, 2011 letter from Dr. Stuck in which he
released Meyers to perform “half day work” at the medium
physical demand level because his foot pain varied from
day to day (R. 576).
Meyers asked the Fund to grant him a disability pension
“dating back to December 2007 which is the date I conceded I
could no longer perform my duties as a sheet metal worker.
couldn’t tolerate the pain I suffered any longer.”
R. 561.
described his “failed attempt to continue as a sheet metal
5
I
He
worker” as “heart breaking” and explained that he was working
towards a degree in facilities management.
Id.
The Trustees once again selected Dr. DeAngeles to examine
Meyers.
Meyers reported to Dr. DeAngeles that he had been
diagnosed with CRPS and presented “a chronological timelines of
events that appears to be suggestive of his diagnosis.”
R. 557.
Before discussing the medications Meyers was taking, Dr.
DeAngeles remarked that his evaluation of Meyers in April 2011
was “no different than it was on the 2008 visit.”
Id.
Meyers
remained on medications that were, in Dr. Angeles’s words,
“consistent with regional pain syndrome disorder.”
Id.
Dr.
DeAngeles also noted that Meyers’s medical records from Loyola
University “confirm[ed] the diagnosis of RSD.”
Id.
In sum,
“[b]ased on the diagnosis of RSD/RPS 1”, Dr. DeAngeles
“approv[ed] total disability dating back to February 2009 when
the pain significantly worsened.”
Id.
Dr. DeAngeles did not
specify what evidence, if any, supported his conclusion that
Meyers’s pain worsened in February 2009.
A committee comprised of two union trustees and one
employer trustee reviewed Meyers’s disability pension
application de novo on May 26, 2011.
R. 580-82.
Among other
requirements, the Plan provides that participants are eligible
for a disability pension only if they have earned at least onehalf of a pension credit in the twelve month period immediately
6
preceding the diagnoses of a disability.
R. 627.
Meyers had
received only one-twelfth of a pension credit in the twelve
months before February 2009, which the committee accepted as the
date when he became disabled.
Therefore, the committee denied
Meyers’s application for a disability pension.
R. 584.
On October 11, 2011, Meyers appealed the committee’s
decision to the Board of Trustees.
R. 588-89.
He submitted a
“binder of medical records” and a journal recording his
subjective complaints of pain from December 2006 to November
2008. 2
R. 552.
Meyers also argued that, assuming he became
disabled in February 2009, the Fund should have awarded him
pension credit during the preceding twelve months because he
received workers’ compensation benefits during that period.
2
R.
R. 135 (Feb. 2008 progress note in which Meyers reports
“further problems with pain in his foot”); R. 134-35 (Apr. 2008
progress note reporting that Elavil and Neurontin were not
relieving Meyers’s foot pain); R. 142 (May 2008 referral letter
documenting Meyers’s complaint of “a four inch band of pain that
wraps around his right mid-foot” and gets worse during
activities such as standing and walking); R. 145-46 and 148-49
(June 2008 clinic notes describing right lumbar sympathetic
block procedure performed on Meyers to alleviate right foot
pain); R. 151-52 (July 2008 clinic note reporting minimal pain
relief from sympathetic blocks and describing trigger point
injection performed on Meyers’s right lower extremity); R. 15354 (Sept. 2008 clinic note concluding that “due to the prolonged
state of the current symptoms, it is unlikely that [Meyers] is
going to gain significant improvement in his symptoms”); R. 15960 (Oct. 2008 clinical note reporting that Meyers’s pain had
diminished, but was still “constant” and exacerbated by
activity); R. 133-34 (Nov. 2008 progress reporting that Meyers
thought he was “unable to maintain a sustained routine to work
due to his pain levels which get worse over the course of weeks
or so”).
7
589.
In support of this argument, Meyers submitted excerpts
from an August 2011 arbitration decision from the Illinois
Workers’ Compensation Commission ordering a contributing
employer to pay him “the temporary total disability benefits
that have accrued from 9/14/2005 through 7/14/2011.”
R. 591.
Meyers argued that the Fund should retroactively award him the
unused portion of his two credit allowance under Section
4.1(d)(i)(B) of the Plan for the time when he was receiving
workers’ compensation benefits. 3
At a meeting on February 15, 2012, the Trustees deadlocked
on whether to grant Meyers a disability pension.
R. 550.
The
Union Trustee voted to grant Meyers the pension while the
Employer Trustee voted to deny the pension.
Id.
In a letter
dated February 20, 2012, the Fund informed Meyers that his
appeal had been denied because of the deadlocked vote.
R. 551.
The Fund determined that Meyers’s disability started in February
2009 based on three factors: (1) Meyers last performed sheet
metal work for a contributing employer in February 2009; (2) Dr.
DeAngeles identified February 2009 as the start of Meyers’s
3
Meyers admits that he did not provide the Trustees with the
portion of the arbitrator’s decision showing that he was
entitled to 39.42 weeks of workers compensation benefits--which
exceeds the 1,200 hour threshold necessary to earn one pension
credit--between February 1, 2008 and January 31, 2009. See Dkt.
No. 23 at 4 n.2 (admitting that the chart at “K MEYERS 00055859” was not part of the administrative record before the
Trustees).
8
disability; and (3) Meyers received workers’ compensation
benefits for a temporary disability between September 2005 and
July 2011 whereas the Plan required his disability to be total
and permanent.
R. 552.
As for Meyers’s argument that the Fund should have awarded
him pension credit starting in 2008 for the unused portion of
the two credit allowance for the receipt of workers’
compensation benefits, the Trustees said:
[T]he Fund has a longstanding and consistent policy of
crediting time under Section 4.1(d)(i)(B) on the
earliest
dates
for
which
Workers’
Compensation
benefits were received until the maximum of two years
of such credit is awarded.
Thus, this credit was
exhausted prior to February 2008 and cannot be used to
meet
the
1/2
pension
credit
rule
under
these
circumstances.
R. 553.
Having exhausted his administrative remedies, Meyers sued
the Fund under ERISA to obtain disability pension benefits.
See
Heimeshoff v. Hartford Life & Accident Ins. Co., 134 S. Ct. 604,
613 (2013) (explaining that judicial review of an adverse
benefits determination is “the second tier of ERISA's remedial
scheme”).
The parties have filed cross motions for summary
judgment on Meyers’s denial of benefits claim.
II.
“As with any summary judgment motion, [I] review crossmotions for summary judgment ‘construing all facts, and drawing
9
all reasonable inferences from those facts, in favor of the nonmoving party.’”
Laskin v. Siegel, 728 F.3d 731, 734 (7th Cir.
2013) (quoting Wis. Central, Ltd. v. Shannon, 539 F.3d 751, 756
(7th Cir. 2008)).
Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving
party, there is no genuine issue for trial.”
Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(internal quotation omitted).
“[A] denial of benefits challenged under [ERISA]
§ 1132(a)(1)(B) is to be reviewed under a de novo standard
unless the benefit plan gives the administrator or fiduciary
discretionary authority to determine eligibility for benefits or
to construe the terms of the plan.”
Firestone Tire and Rubber
Co. v. Bruch, 489 U.S. 101, 115 (1989).
“When the administrator
has such discretionary authority, as the vast majority now do,
the [reviewing] court applies a more deferential standard,
seeking to determine only whether the administrator's decision
was ‘arbitrary and capricious.’”
Holmstrom v. Metropolitan Life
Ins. Co., 615 F.3d 758, 766 (7th Cir. 2010).
The parties agree that the Plan confers sufficient
discretion on the Trustees to trigger arbitrary and capricious
10
review.
Meyers argues, however, that I should apply a
heightened form of arbitrary and capricious review because the
Supreme Court has held that a conflict of interest exists
whenever an ERISA plan administrator “both evaluates claims for
benefits and pays benefits claims.”
Metro. Life Ins. Co. v.
Glenn, 554 U.S. 105, 112-15 (2008).
The Seventh Circuit has
rejected the argument that Glenn requires courts to “apply a
heightened standard of review whenever a plan administrator
is...also the payor of benefits.”
Majeski v. Metro. Life Ins.
Co., 590 F.3d 478, 482 (7th Cir. 2009) (collecting cases).
Instead, “[t]he likelihood that the conflict of interest
influenced the [plan administrator’s] decision is...the decisive
consideration” in deciding whether to apply a heightened form of
arbitrary and capricious review.
Marrs v. Motorola, Inc., 577
F.3d 783, 789 (7th Cir. 2009).
The Fund maintains a structural safeguard against biased
decision-making by having an equal number of Union and Employer
Trustees on its Board.
See 29 U.S.C. § 186(c)(5)(B) (requiring
union-established trust funds to be administered such that
“employees and employers are equally represented in the
administration of such fund”).
The Seventh Circuit has held,
post-Glenn, that “a conflicts analysis [is] not [even] necessary
when the plan at issue [is] a multi-employer welfare plan whose
trustees consisted of an equal number of union and employer
11
representatives, whose union representatives had ‘no discernible
incentive to rule against an applicant,’ and whose trustees were
unanimous in their ruling.”
Tompkins v. Central Laborers’
Pension Fund, 712 F.3d 995, 1000-01 (7th Cir. 2013) (quoting
Manny v. Central States, SE and SW Areas Pension & Health &
Welfare Funds, 388 F.3d 241, 243 (7th Cir. 2004)). 4
Although the Trustees were not unanimous in denying
Meyers’s appeal, Thompkins does not require a heightened form of
arbitrary and capricious review whenever union and employer
trustees deadlock on whether to grant a disability pension.
More importantly, Meyers has not presented evidence that the
evaluator/payor conflict of interest influenced the Employer
Trustee’s vote to deny him a pension.
“No weight is given to a
conflict in the absence of any evidence that the conflict
actually affected the administrator's decision.”
F.3d at 140.
Durakovic, 609
Because there is no evidence raising a “suspicion
of partiality” in this case, Meyers’s claim remains subject to
the non-heightened form of arbitrary and capricious review.
Thompkins, 712 F.3d at 1001.
4
Contra Durakovic v. Bldg. Serv. 32 BJ Pension Fund, 609 F.3d
133, 139 n.4 (2d Cir. 2010) (describing Manny as “outdated” and
holding that a conflicts analysis is necessary even when an
equal number of employer and employees representatives
administer an ERISA pension fund).
12
III.
On the merits, Meyers argues that the Trustees arbitrarily
selected February 2009 as the date when he became “totally and
permanently disabled” as that term is defined in the Plan.
Alternatively, Meyers contends that even if his disability
started in February 2009, the Trustees should have awarded him
at least one-half of a pension credit in the preceding twelve
months because he received workers’ compensation benefits during
that period.
A.
In the first instance, Meyers’s pension claim turns on when
he became disabled.
Section 3.11 of the Plan provides:
A Participant shall be deemed to be Totally and
Permanently Disabled only if the Board of Trustees
shall determine on the basis of medical or similar
evidence that:
(a)
such Participant is totally unable, as
a result of bodily injury or disease,
to engage in or perform the duties of a
Sheet Metal Worker or other employment
in
the
construction
industry
for
remuneration or profit and does not
engage
in
or
secure
any
other
employment or gainful pursuit, except
for an activity (so long as that
activity does not involve work as a
Sheet Metal Worker or employment in the
construction
industry)
at
which
he
earns
less
than
$35,000
per
year
($1,000 per month prior to January 1,
2006), subject to the limitations of
Section 6.7(a) of the Plan; and
13
(b)
Such disability will be permanent and
continuous for the remainder of his
life.
R. 628-29.
The Plan does not define “the duties of a Sheet Metal
Worker,” but the Trustees listed the following five factors in
their November 2008 denial of Meyers’s first appeal:
If a [P]articipant cannot perform any one of the
following five abilities then the Participant may be
considered to be Totally and Permanently Disabled.
1.
Ability to stand for extended periods
of time
2.
Ability to lift 30 pounds above head
3.
Ability to climb stairs and ladders on
a frequent basis; at least 3 to 4 times
per day
4.
Ability to kneel
frequent basis
5.
Ability
to
work
with
hand
tools
(shears, hammer) up to 6 hours per day.
and/or
crawl
on
a
Pl.’s Ex. C.
After quoting the Plan’s definition of “totally and
permanently disabled,” the Trustees rejected September 2005 as
the date when Meyers became disabled because he worked for
contributing employers after that date until February 2009.
The Trustees also stated that Dr. DeAngeles had determined on
Id.
“two separate occasions” that Meyers did not become disabled
14
until February 2009. 5
Id.
Finally, the Trustees noted that
Meyers had received workers’ compensation benefits for a
temporary disability between September 2005 and July 2011
whereas the Plan required his disability to be total and
permanent.
Id.
Meyers’s burden is to show that the Trustees’ selection of
February 2009 as the date when he first became disabled was
arbitrary and capricious in light of the evidence he presented.
“[P]rocedural reasonableness is the cornerstone of the
arbitrary-and-capricious inquiry.”
Majeski, 590 F.3d at 484.
“[A] plan administrator's procedures are not reasonable if its
determination ignores, without explanation, substantial
[medical] evidence that the claimant has submitted that
addresses what the plan itself has defined as the ultimate
issue.”
Id.
The Fund must “provide a reasonable explanation
for its determination and...address any reliable, contrary
evidence presented by the claimant.”
Love v. Nat’l City Corp.
Welfare Benefits Plan, 574 F.3d 392, 397 (7th Cir. 2009).
Measured against these standards, the Trustees’ conclusion
that Meyers first became disabled in February 2009--as opposed
to September 2005, the only other date they considered--was an
5
The record shows that Dr. DeAngeles identified February 2009 as
the date of Meyers’s disability on only one occasion (i.e., in
April 2011). His other examination of Meyers occurred before
February 2009.
15
arbitrary and artificially binary choice.
The Trustees did not
address any of the six medical records that Meyers submitted
with his original application.
Significantly, the Trustees did
not explain why Dr. Malik’s report from May 2008 in which he
diagnosed Meyers with CRPS in his right foot was insufficient
evidence that he could no longer perform the specific duties of
a sheet metal worker listed in the November 2008 denial of
Meyers’s first appeal.
Meyers essentially stopped performing sheet metal work
after December 2007.
R. 560.
As Meyers explained in his
pension application, by the end of 2007, he “couldn’t tolerate
the pain [he] suffered any longer.”
R. 561.
His complaints of
pain in 2008 also appear in the numerous medical records and
journal entries submitted to the Trustees on appeal, all of
which the Trustees failed to address.
See supra at n. 2.
The
Trustees could not ignore Meyers’s complaints of pain simply
because they were subjective.
See Hawkins v. First Union Corp.,
326 F.3d 914, 919 (7th Cir. 2003).
Moreover, the 107.5 hours
Meyers worked in February 2009 do not preclude a finding that he
was disabled before that date.
Id. at 913 (“A desperate person
might force himself to work despite an illness that everyone
agreed was totally disabling.”).
In short, the Trustees decided that Meyers became disabled
in February 2009 without addressing any of the medical evidence
16
he had presented.
The Seventh Circuit has consistently reversed
ERISA plan administers in similar circumstances.
See Raybourne
v. Cigna Life Ins. Co. of New York, 700 F.3d 1076, 1088 (7th
Cir. 2012) (reversing denial of disability benefits where plan
administrator “failed to adequately explain why it gave more
weight to [independent medical evaluation performed by its
chosen physician] than to all of the medical evidence to the
contrary produced by [claimant’s] treating physician”); Majeski,
590 F.3d at 483 (reversing denial of disability benefits where
plan administrator “[did] not acknowledge, much less analyze,
the significant evidence of functional limitations that
[claimant] offered”); Leger v. Tribune Co. Long Term Disability
Benefits Plan, 557 F.3d 823, 835 (7th Cir. 2009) (reversing
termination of disability benefits where plan administrator
“failed to consider [claimant’s] complete medical history and
rejected, without explanation, important aspects of [a
functional capacity evaluation]”); Love, 574 F.3d at 396
(reversing termination of disability benefits where plan
administrator failed to explain why it “chose to discredit the
evaluations and conclusions of [claimant’s] treating
physicians”).
Meyer’s claim falls squarely within this line of
cases holding that it is arbitrary for an ERISA plan
administrator to terminate or deny disability benefits without
addressing the claimant’s medical evidence.
17
B.
“When a plan administrator does not give adequate reasoning
for its decision, [courts] normally remand the case so that the
administrator can make further findings or provide additional
explanation.”
Schane v. Int’l Bhd. of Teamsters Union Local No.
710 Pension Fund Pension Plan, 760 F.3d 585, 592 (7th Cir.
2014).
A court may, however, award benefits “in cases where the
evidence is ‘so clear cut that it would be unreasonable for the
plan administrator to deny the application for benefits on any
ground.’”
Love, 574 F.3d at 398 (quoting Gallo v. Amoco Corp.,
102 F.3d 918, 923 (7th Cir. 1996)).
This is not a case where the medical evidence establishes
beyond dispute the precise date when Meyers became “totally and
permanently disabled” under Section 3.11 of the Plan.
Therefore, a remand to the Fund is the appropriate remedy.
Because the date when Meyers became disabled is still an open
question, I cannot decide at this stage whether he earned at
least one-half of a pension credit in the twelve month period
before an undetermined date.
The Fund’s obligation to address Meyers’s medical evidence
on remand is “a question of degree.”
Majeski, 590 F.3d at 484
(noting that plan administrator need not “annotate every
paragraph of a thousand-page medical record”).
At a minimum,
the Fund must explain why it finds Meyers’s medical evidence
18
unreliable or insufficient to render him disabled on a date
before February 2009.
See Leger, 557 F.3d at 835.
IV.
I grant Meyers’s motion for summary judgment and deny the
Fund’s cross motion for the reasons stated above.
The case is
remanded to the Fund for further proceedings consistent with
this opinion.
ENTER ORDER:
_____________________________
Elaine E. Bucklo
United States District Judge
Dated: February 27, 2015
19
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