Scott v. Union Security Insurance Company

Filing 48

MEMORANDUM AND ORDER - Defendant's motion for summary judgment 34 is hereby granted, and judgment shall be entered in favor of defendant on plaintiff's claims. Plaintiff's motion for summary judgment 36 is hereby denied. Signed by District Judge John W. Lungstrum on 02/05/2019. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANDREW SCOTT,

)
)
Plaintiff,
)
)
v.
)
)
UNION SECURITY INSURANCE
)
COMPANY,
)
)
Defendant.
)
)
_______________________________________)

Case No. 17-2686-JWL

MEMORANDUM AND ORDER
Defendant insurer denied plaintiff long-term disability benefits, and plaintiff now
asserts claims under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §
1132(a). This matter presently comes before the Court on the cross-motions for summary
judgment filed by plaintiff (Doc. # 36) and defendant (Doc. # 34). For the reasons set forth
below, the Court concludes that summary judgment is warranted in favor of defendant on
plaintiff’s claims. Accordingly, the Court grants defendant’s motion and denies plaintiff’s
motion.

I.

Background

The following facts are undisputed. Plaintiff worked as an orthopedic surgeon
specializing in sports medicine. Plaintiff’s employer provided a long-term disability plan

though a policy from defendant insurer. The Plan contained the following provisions
relevant to this case:
Disability or disabled means that in a particular month, you satisfy one or
more of the three Tests, as described below.
Occupation Test
• During the first 36 months of a period of disability . . ., an injury . . .
prevents you from performing at least one of the material duties of
your regular occupation; and
• after 36 months of disability, an injury . . . prevents you from
performing at least one of the material duties of each gainful
occupation for which your education, training, and experience
qualifies you.
Earnings Test
You may be considered disabled in any month in which you are
actually working, if an injury . . . prevents you from earning more than
80% of your monthly pay in that month in any occupation for which
your education, training or experience qualifies you. . . .
...
You may still be considered disabled according to the Occupation
Test, without regard to your level of current earnings, if you meet the
requirements of that Test.
[Third Test not applicable here.]
...
Gainful occupation means an occupation in which you could reasonably be
expected to earn at least as much as your Schedule Amount [in this case
$6,000 per month].
Plaintiff ceased working as a surgeon for his employer in October 2012 because of a
shoulder rotator cuff injury, for which he had surgery. In February 2013, defendant notified
plaintiff that it approved his claim for benefits under the plan, with a disability onset date
2

of October 9, 2012, with benefits to commence in April 2013 pursuant to the Plan, with a
maximum duration until April 2023 (assuming plaintiff continued to satisfy the terms of
the Plan). This letter also noted that the definition of disability would change after 36
months and that an investigation would take place to determine whether plaintiff met the
disability definition at that time.
In 2015, as the change-in-definition approached, defendant undertook an
investigation of plaintiff’s continuing eligibility for benefits. Defendant’s medical review,
based on a 2013 evaluation from plaintiff’s surgeon, Dr. Burkhart, concluded that while
plaintiff could not perform his own occupation, he could work full-time with light duty
above the waist, with no other restrictions or limitations.

Defendant completed a

transferable skills analysis (TSA) and obtained a labor market study (LMS), which revealed
four positions in the geographical area that plaintiff could perform, for which he was
qualified, in which he could earn as much as his Schedule Amount (meaning such positions
would be considered “gainful occupations” under the Plan). Defendant asked plaintiff if
he was working, and plaintiff responded that he was considering a consulting engagement.
On September 30, 2015, plaintiff notified defendant that he was starting work at a Culver’s
restaurant, as a front-line crew member, at a wage of $8.50 per hour. Plaintiff conceded
during the claims process that he took that job in order to meet the Earnings Test of the
Plan’s disability definition.
On November 5, 2015, defendant sent plaintiff a letter concerning his eligibility for
benefits after the change-in-definition after 36 months. The letter accurately quoted the
Occupation Test and Earnings Test from the Plan, but it did not quote the introductory
3

language stating that a participant had to satisfy only one test to meet the disability
definition. The letter then stated as follows:
As of October 9, 2015 you have been disabled for 36 months. You must
satisfy both the Occupation Test and the Earnings Test to receive further
disability benefits.
After reviewing all of the medical, financial, and vocational evidence in your
file we have determined that you currently remain disabled as defined by the
policy and are entitled to benefits.
The letter also notified plaintiff that it would continue to request updated information “to
substantiate ongoing entitlement to disability benefits and to confirm the accuracy of the
benefit paid;” that plaintiff should inform it if he returned to work or had a change in
medical condition; and that he remained eligible until April 2023 as long as he remained
disabled and satisfied the provisions of the Plan.
In March 2016, plaintiff left his Culver’s job and took full-time employment as a
medical officer with the FDA in Washington DC, at an annual salary of $197,000. In April
2016, after approximately one month, plaintiff left his employment with the FDA because
he no longer desired to be employed so far from his home and family in the Kansas City
area. Plaintiff notified defendant of these changes.
In July 2016, defendant notified plaintiff that it was continuing to review his
eligibility for benefits, and it asked for updated information. Subsequently, defendant
completed an updated vocational services assessment and obtained an updated LMS, which
again concluded that positions were available in the area for plaintiff at a gainful wage.
Defendant also updated its medical review, although the review was based on the same

4

2013 evaluation from Dr. Burkhart that had informed the prior review. Defendant also
confirmed that plaintiff was not employed.
By letter of December 22, 2016, defendant notified plaintiff of the denial of his longterm disability benefits. The letter stated that plaintiff did not satisfy the Occupation Test
because his medical condition did not prevent him from performing the material duties of
each gainful occupation for which he was qualified. It also noted that the Earnings Test
did not apply because plaintiff was not working. Defendant subsequently denied plaintiff’s
appeal of that decision.
In this suit, plaintiff asserts two claims under ERISA arising from the denial of his
claim for benefits. First, plaintiff seeks an award of benefits under the Plan pursuant to 29
U.S.C. § 1132(a)(1)(B). Second, plaintiff seeks equitable relief to redress a breach of
fiduciary duty by defendant pursuant to 29 U.S.C. § 1132(a)(3). Each party has moved for
summary judgment on these claims.

II.

Summary Judgment Standards

Summary judgment is appropriate if the moving party demonstrates that there is “no
genuine dispute as to any material fact” and that it is “entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(a). In applying this standard, the court views the evidence and all
reasonable inferences therefrom in the light most favorable to the nonmoving party. Burke
v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (10th Cir. 2006). An issue of fact
is “genuine” if “the evidence allows a reasonable jury to resolve the issue either way.”

5

Haynes v. Level 3 Communications, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006). A fact is
“material” when “it is essential to the proper disposition of the claim.” Id.
The moving party bears the initial burden of demonstrating an absence of a genuine
issue of material fact and entitlement to judgment as a matter of law. Thom v. Bristol-Myers
Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986)). In attempting to meet that standard, a movant that does not bear the
ultimate burden of persuasion at trial need not negate the other party’s claim; rather, the
movant need simply point out to the court a lack of evidence for the other party on an
essential element of that party’s claim. Id. (citing Celotex, 477 U.S. at 325).
If the movant carries this initial burden, the nonmovant may not simply rest upon
the pleadings but must “bring forward specific facts showing a genuine issue for trial as to
those dispositive matters for which he or she carries the burden of proof.” Garrison v.
Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). To accomplish this, sufficient evidence
pertinent to the material issue “must be identified by reference to an affidavit, a deposition
transcript, or a specific exhibit incorporated therein.” Diaz v. Paul J. Kennedy Law Firm,
289 F.3d 671, 675 (10th Cir. 2002).
Finally, the court notes that summary judgment is not a “disfavored procedural
shortcut;” rather, it is an important procedure “designed to secure the just, speedy and
inexpensive determination of every action.” Celotex, 477 U.S. at 327 (quoting Fed. R. Civ.
P. 1).

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III.

Claim for Benefits
A.

Applicable Standards

As noted above, in his first claim plaintiff seeks an award of benefits under the Plan.
As plaintiff concedes, the Plan gives defendant, the Plan administrator, discretion to
determine eligibility and to construe terms under the Plan. Accordingly, the Court reviews
defendant’s decision to deny benefits under a deferential standard, asking only whether the
denial was arbitrary and capricious. See Eugene S. v. Horizon Blue Cross Blue Shield of
New Jersey, 663 F.3d 1124, 1130 (10th Cir. 2011). The Tenth Circuit has elaborated on
that standard as follows:
Using the arbitrary and capricious standard, we ask whether the
administrator’s decision was reasonable and made in good faith. We will
uphold the decision of the plan administrator so long as it is predicated on a
reasonable basis, and there is no requirement that the basis relied upon be the
only logical one or even the superlative one. We look for substantial
evidence in the record to support the administrator’s conclusion, meaning
more than a scintilla of evidence that a reasonable mind could accept as
sufficient to support a conclusion.
See id. at 1133-34 (internal quotations and citations omitted).
Because defendant acted as both insurer and administrator of the Plan, it operated
under an inherent conflict of interest, and the Court may weigh that conflict as a factor in
reviewing the decision under the arbitrary-and-capricious standard. See Holcomb v. Unum
Life Ins. Co. of Am., 578 F.3d 1187, 1192 (10th Cir. 2009). The conflict is weighed more
heavily if circumstances suggest a higher likelihood that it affected the benefits decision.

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See id. at 1193. The conflict does not shift the burden of proof, however, which remains
with plaintiff. See id. at 1192-93.1
The parties agree that the Court’s review is generally limited to the administrative
record of the proceedings before defendant on plaintiff’s claim for benefits. Plaintiff notes
that, although extra-record materials may not be considered with respect to his eligibility
for benefits, they may be considered with respect to the administrator’s dual-role conflict
of interest. See Murphy v. Deloitte & Touche Group Ins. Plan, 619 F.3d 1151, 1162 (10th
Cir. 2010). Plaintiff asks the Court to consider defendant’s discovery responses and its
procedures manual.

Plaintiff has not explained, however, how any such additional

evidence shows an increased likelihood that defendant denied benefits in this case because
of its inherent conflict. Thus, there is no reason to give any less deference to defendant.2
B.

Occupation Test

Plaintiff cites Null v. Community Hospital Ass’n, 379 F. App’x 704 (10th Cir.
2010), in arguing that the burden should shift to defendant to justify a termination of
benefits. The Court rejects that argument for several reasons. First, Null is an unpublished
decision that therefore does not serve as precedent. Second, while the court in Null noted
that “[t]here is authority” for shifting the burden when the plan administrator is attempting
to terminate benefits, it did not expressly choose to follow any such authority. Third, the
case is distinguishable because there the court was applying a de novo standard, not the
arbitrary-and-capricious standard that applies in the present case. The Tenth Circuit has
made clear that under the latter standard, plaintiff bears the burden of proof. See Holcomb,
578 F.3d at 1192-93. Finally, even if defendant bore the burden of proof in this case, the
Court would conclude that defendant has met that burden to show that its benefits decision
was not arbitrary and capricious.
2
Moreover, even if the Court gave no deference to defendant’s decision, it would
nonetheless conclude, under a de novo standard, that plaintiff was not entitled to benefits
under the Plan.
1

8

Under the Plan, plaintiff had to satisfy either the Occupation Test or the Earnings
Test to be entitled to disability benefits. Defendant denied plaintiff benefits in December
2016 on the basis of its determination that plaintiff did not satisfy the provision of the
Occupation Test that applied after 36 months. The Court concludes that that determination
was reasonably supported by substantial evidence in the record and thus was not arbitrary
and capricious. The only limitation or restriction mentioned by plaintiff’s surgeon was that
plaintiff could perform only light duty (lifting no more than 20 pounds) above the waist,
and plaintiff did not submit any other relevant medical evidence to defendant. Initial and
updated TSAs and LMSs revealed that there were positions available in the area for which
plaintiff was qualified that met the applicable salary threshold (at least $6,000 per month).
In addition, in 2016 plaintiff did actually secure a medical job at a salary of $197,000 per
year.
Plaintiff’s primary argument is that defendant stated in its November 2015 letter
that plaintiff met the Occupation Test and that his medical condition had not changed when
defendant determined otherwise in December 2016.3 The record shows unequivocally,
however, that the 2015 statement was a mistake. First, the letter misstated the requirements
of the Plan, which clearly required satisfaction of only one of the disability tests. Second,
defendant undertook the relevant analysis in 2015, which indicated that sufficient

3

Defendant argues that the 2015 letter did not state that plaintiff had satisfied the
Occupation Test, but the Court rejects that argument. The letter plainly stated that plaintiff
had to meet both tests and that defendant had determined that plaintiff was disabled. The
only conclusion to be drawn from those statements is that plaintiff had satisfied the
Occupation Test.
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employment was available, which meant in turn that plaintiff did not satisfy the “any
occupation” version of the Occupation Test that applied after 36 months.
In addition, even if defendant had actually concluded in 2015 that plaintiff satisfied
the Occupation Test as of that date, it had additional evidence to consider in 2016, namely
plaintiff’s employment with the FDA, which demonstrated that plaintiff’s injury did not
prevent him from performing the material duties of a gainful occupation. Plaintiff argues
that one month at the FDA is not significant vocationally, but he does not explain why that
employment does not provide relevant evidence. There is no evidence that plaintiff could
not perform the duties of that job, and plaintiff does not dispute that he left that job only
because he wished to return home to the Kansas City area and not because of any
performance-related reason.
Most importantly, plaintiff has not attempted to explain (or point to evidence to
support) why his injury actually prevented him from performing the duties of the gainful
occupations identified by defendant. Thus, plaintiff has not shown that defendant’s
determination was incorrect.
Plaintiff also argues that defendant’s TSAs and LMSs – and thus its ultimate
determination – were based on a misunderstanding of his physical restrictions.
Specifically, plaintiff argues that Dr. Burkhart, in his 2013 evaluation, did not actually state
that plaintiff was restricted to light duty above the waist. The Court rejects this argument.
In that evaluation, Dr. Burkhart addressed plaintiff’s ability to work as an orthopedic
surgeon, but he did not address plaintiff’s ability to perform other jobs. With respect to
plaintiff’s prior occupation, after noting that that occupation required plaintiff to perform
10

heavy lifting, Dr. Burkhart stated that the results of a Functional Capacity Evaluation (FCE)
showed that plaintiff “does not have the capacity to work full time even within light duty
job at anything above waist level.” Dr. Burkhart elaborated as follows:
Since orthopedic surgeons do all their work above waist level and since his
FCE does not support a capacity to work even [within] light duty status above
waist level . . ., I do not think that he can return to his job as an orthopedic
surgeon. I think that he is fully and permanently disabled from that
occupation.
Finally, Dr. Burkhart stated that plaintiff was free to play lighter, low-level sports such as
golf and tennis, which are not comparable to the heavy work performed by an orthopedic
surgeon. Defendant reasonably interpreted this evaluation, including the opinion that
plaintiff could play golf and tennis (sports that require some above-the-waist exertion), as
indicating that although plaintiff could not perform his prior occupation, he could perform
duties that required some (no more than light) exertion above the waist. Dr. Burkhart did
not expressly set forth any limitation other than the inability to perform the occupation of
orthopedic surgeon, which requires heavy lifting; he did not state that plaintiff could not
perform any work whatsoever above the waist. Moreover, plaintiff has not provided any
other evidence of physical limitations. (Plaintiff repeatedly told defendant during the
claims process that defendant did not need any medical evidence other than the evaluation
by Dr. Burkhart, a leading expert.) Thus, plaintiff has not cited any evidence to suggest
that he actually had restrictions beyond those used for the TSAs and LMSs. Nor does
plaintiff argue that the TSAs and LMSs were deficient in any other way. Accordingly, the
Court concludes that defendant’s reliance on those assessments – as well as on the evidence
that plaintiff had performed the FDA job – was reasonable.
11

Plaintiff also notes that defendant did not insist on a new medical examination in
2016, but as noted, plaintiff insisted that his 2013 evaluation, which indicated that plaintiff
had reached maximum recovery, was still sufficient. Plaintiff never indicated to defendant
that his condition had worsened in any way. Even now, plaintiff has not argued that a new
examination would have revealed additional limitations.
Finally, plaintiff cites the December 2016 letter’s determination that plaintiff did
not meet the Occupation Test as of October 31, 2016, and he argues that defendant’s
determination is undermined by the fact that he was still paid benefits up to that date, even
while he was not working at all (which meant that he could only qualify as disabled if he
met the Occupation Test). Those payments do not provide evidence that he actually met
the test in December 2016, however; rather, they indicate only that defendant had not
completed its determination (for which it obtained an updated TSA and LMS and asked for
any additional relevant medical evidence) before then.

Again, plaintiff has never

articulated why he was unable to perform the duties of the gainful occupations identified
by defendant (despite being able to perform the FDA job). Thus, plaintiff’s receipt of
benefits after he left the FDA serves only as evidence that he received a windfall, and not
evidence that he actually satisfied the Occupation Test and was therefore disabled in
December 2016.
C.

Earnings Test

By its express terms, the Earnings Test applied only if the claimant was working.
For that reason, defendant declined to apply the test in making its determination in
December 2016. Plaintiff does not dispute that he was not working after he left the FDA
12

in April 2016. Thus, the Earning Test did not provide a basis for plaintiff’s continuing
eligibility for disability benefits, and defendant’s conclusion to that effect was reasonable.
Plaintiff argues that defendant, in deciding when to make its benefits determination
in 2016, was able to determine when the Earnings Test inquiry would be triggered, without
informing plaintiff of any potential trigger date (to allow plaintiff to begin working).
Plaintiff argues that any interpretation of the Plan that allowed such conduct by defendant
was unreasonable. Plaintiff notes that the Plan states only that a claimant may not be
considered disabled in any month in which he is actually working. Thus, plantiff appears
to argue that the Plan should be interpreted to him to allow him to receive benefits again in
some future month in which he is working.4
The Court will not consider this argument for multiple reasons. First, plaintiff made
this argument for the first time in its reply brief in support of his summary judgment motion
(which, because of the cross-motions, was plaintiff’s third opportunity to brief the issues),
and the Court does not consider arguments not raised in the initial brief. See U.S. Fire Ins.
Co. v. Bunge N. Am., Inc., 2006 WL 1007099, at *3 n.5 (D. Kan. Apr. 14, 2006) (citing
Minshall v. McGraw Hill Broadcasting Co., 323 F.3d 1273, 1288 (10th Cir. 2003)).
Second, plaintiff did not contend in the pretrial order that defendant misinterpreted the
Plan, and thus plaintiff failed to preserve any such claim. Third, plaintiff has not shown

4

Defendant argues that the 2015 letter did not provide a final determination of
plaintiff’s eligibility after 36 months, and that such a determination was not made until
December 2016. The record does not support that argument, however, as the 2015 letter
stated that, after reviewing the medical, financial, and vocational evidence, defendant had
“determined” that plaintiff remained disabled under the Plan.
13

that any such argument is ripe, as plaintiff has failed to show that he actually sought and
was denied benefits in a month while he was working.
For these reasons, the Court concludes that plaintiff has not shown that defendant’s
denial of benefits in December 2016 was unreasonable or was not supported by substantial
evidence. Accordingly, the Court grants summary judgment in favor of defendant on
plaintiff’s claim for benefits under Section 1132(a)(1)(B), and it denies plaintiff’s motion
for summary judgment on that claim.

IV.

Claim for Breach of Fiduciary Duty

Plaintiff also asserts a claim for breach of fiduciary duty under 29 U.S.C. §
1132(a)(3), which allows a plan participant to sue to obtain appropriate equitable relief.
See id. As the basis for that claim, plaintiff alleges that defendant made a material
misrepresentation when it represented in the November 2015 letter that plaintiff met the
provision of the Occupation Test that applied after 36 months. Defendant does not dispute
that a material misrepresentation may constitute a breach of fiduciary duty under Section
1132(a)(3). See, e.g., Randles v. Galichia Med. Group, P.A., 2006 WL 3760251, at *13
(D. Kan. Dec. 18, 2006) (citing Romero v. Allstate Corp., 404 F.3d 212, 226 (3d Cir.
2005)).
Defendant argues that plaintiff may not pursue this claim because the claim for
benefits under Section 1132(a)(1)(B) provides an adequate remedy. See Swearingen v.
Honeywell, Inc., 189 F. Supp. 2d 1189, 1197 (D. Kan. 2002) (plan beneficiary may not
seek equitable relief under Section 1132(a)(3) if he has another adequate ERISA remedy
14

available, such as a claim for benefits under Section 1132(a)(1)(B)). Defendant notes that
in the pretrial order, plaintiff seeks only an award of benefits (in addition to a declaration
of violation and an injunction against future violations), and it argues that any claim for
benefits may be pursued only under Section 1132(a)(1)(B).
The Court is not persuaded that plaintiff cannot pursue this claim. The Supreme
Court has made clear that equitable relief under Section 1132(a)(3) may include monetary
relief intended to make a plan beneficiary whole for a fiduciary’s violation of its duty. See
CIGNA Corp. v. Amara, 563 U.S. 421, 441-42 (2011). In this case, plaintiff seeks a
monetary award to compensate him for the loss of benefits that he allegedly sustained
because of his reliance on a material misrepresentation by defendant. Thus plaintiff does
not seek exactly the same relief that he seeks in his claim for benefits under Section
1132(a)(1)(B). Accordingly, the Court will consider the merits of plaintiff’s claim for
breach of fiduciary duty.5
The parties agree that, to succeed on his claim for a breach of fiduciary duty based
on a misrepresentation, plaintiff must prove defendant’s status as an ERISA fiduciary, a
material misrepresentation, and detrimental reliance on that misrepresentation.

5

See

The Court does agree with defendant that plaintiff is limited to the relief sought in
the pretrial order. In his briefs, plaintiff requests equitable relief in the form of an order
requiring defendant to grant plaintiff some period of time in which to meet the requirements
of the Occupation Test or the Earnings Test, or an order requiring defendant to enroll
plaintiff in a rehabilitation program. Plaintiff did not preserve any claim for such specific
non-monetary relief in the pretrial order, however, which governs the present scope of
plaintiff’s lawsuit. Nor has plaintiff moved to amend the pretrial order to include any such
claim.
15

Randles, 2006 WL 3760251, at *13 (citing Romero, 404 F.3d at 226); Fulghum v. Embarq
Corp., 2011 WL 13615, at *2 (D. Kan. Jan. 4, 2011) (citing Randles for these elements).6
Plaintiff claims in his briefs that he did not take another job (after leaving the FDA) because
he relied on defendant’s statement in the November 2015 letter that he met the Occupation
Test. The Court agrees with defendant, however, that plaintiff has failed to provide any
evidence that he actually relied on this representation.
At the summary judgment stage, plaintiff is required to support his claim with
evidence. Plaintiff argues that he may rely on evidence outside the administrative record
in proving his claim for breach of fiduciary duty, and defendant does not dispute that
position. Plaintiff has not provided any such evidence to show that he actually relied on
the letter in choosing not to seek employment, however, not even an affidavit stating that
he did so rely. Plaintiff argues generally that he should have the opportunity to present
testimony at trial (for instance concerning communications between the parties), but he
was obligated to provide the necessary evidence at this stage.
In arguing that he did rely, plaintiff points only to the letter itself and to the fact that
defendant continued to pay him benefits even after he left the FDA. At most, however,
that evidence supports an argument that any reliance by plaintiff was reasonable; it does

Plaintiff cites the Supreme Court’s statement in CIGNA that there is no general
principle requiring detrimental reliance before an equitable remedy may be decreed. See
CIGNA, 563 U.S. at 443. The Supreme Court further stated, however, that such reliance
must be shown before a remedy equivalent to estoppel may be imposed. See id. Plaintiff
was harmed by defendant’s misrepresentation only if he relied on it, and thus this Court
would not grant plaintiff any equitable relief in the absence of detrimental reliance.
Plaintiff has not cited any authority indicating that a court may grant relief for a breach
based on a misrepresentation in the absence of detrimental reliance.
6

16

not create any reasonable inference that he actually relied on the letter. In addition, in the
statement of facts in his summary judgment motion, plaintiff states that he relied on
defendant’s representations “in his pursuit of employment,” but in support of that
statement, plaintiff cites only two notices that he gave to defendant about taking jobs.
Those notices do not provide evidence that he chose not to take other jobs because of
defendant’s representations. In fact, plaintiff’s decision to take the FDA job after he
received the 2015 letter undercuts any argument that he chose not to work because of the
statements in the letter.
As defendant noted in its briefs, plaintiff (through his attorney) stated during the
claims process that he took the Culver’s job in October 2015 specifically in an attempt to
satisfy the Earnings Test. That fact is not enough to save plaintiff’s claim, however. That
evidence might lend credibility to a suggestion that plaintiff would do the same thing again
if necessary. Again, however, there is no evidence that in 2016 plaintiff actually decided
not to pursue that course because of the 2015 letter’s statement that he met the Occupation
Test. Moreover, the fact that plaintiff, a former orthopedic surgeon, did not quit his menial
Culver’s job after receiving the letter provides evidence of a lack of reliance; if he was
working only to satisfy the Earnings Test and if he actually believed (from the letter) that
he had satisfied the Occupation Test (because of the letter), he would have had no reason
to continue in that job for four more months.7

7

Plaintiff essentially argues that he believed and relied on the statement in the 2015
letter that he met the Occupation Test, but that he did not believe or rely on the statement
that he needed to meet both tests (otherwise he would have made sure he continued working
to meet the Earnings Test).
17

Therefore plaintiff has not met his burden to provide evidence of actual reliance
sufficient to support his claim for breach of fiduciary duty based on a misrepresentation.
Accordingly, defendant is entitled to summary judgment on that claim.
The only other conduct identified by plaintiff as a breach of fiduciary duty is
defendant’s alleged failure to comply with its own manual for processing claims. Plaintiff
mentioned such a breach only in his initial summary judgment brief; he appears to have
abandoned that claim in his response to defendant’s motion and in his reply in support of
his own motion, in which he argued only a breach based on defendant’s misrepresentation.
Nor has plaintiff sufficiently supported a claim based on manual violations, including by
citation to relevant authority.
The Court concludes that plaintiff has not provided evidence of a breach based on
any of the particular violations cited by plaintiff that would be sufficient to persuade the
Court to grant equitable relief here. First, plaintiff claims that defendant failed to comply
with the manual’s requirement that it act in good faith with respect to benefits claims.
Plaintiff has not provided any evidence, however, that defendant acted in bad faith. The
record supports only the conclusion that defendant made a mistake in the 2015 letter and
that it failed to correct that mistake until the 2016 denial. Second, plaintiff claims that
defendant failed to obtain additional information about plaintiff’s limitations and abilities.
The record shows, however, that in 2016 defendant updated its TSA and LMS and asked
plaintiff for any additional medical information, and plaintiff has not identified any
additional limitations that that defendant should have considered. Third, plaintiff claims
that defendant violated the manual in failing to educate plaintiff about possible
18

rehabilitation programs. The record shows, however, that the parties did discuss plaintiff’s
work options, and there is no evidence that plaintiff needed or wanted specific services
from defendant (he apparently succeeded in securing a high-paying job with the FDA
without those services). Moreover, plaintiff has not explained (or provided evidence to
show) how he was harmed by any such failure by defendant or how that failure relates to
his loss of benefits (the only harm claimed in the pretrial order). For instance, plaintiff has
not preserved any claim that he lost income from another job because he did not receive
rehabilitation services. Fourth and finally, plaintiff claims that defendant failed to comply
with the manual’s instruction to communicate well with claimants. Any such claim mirrors
plaintiff’s misrepresentation claim, however, and is similarly doomed by a lack of evidence
of actual reliance.
Plaintiff has failed to support any claim for equitable relief under Section 1132(a)(3)
for a breach of fiduciary duty. Accordingly, defendant is awarded summary judgment on
all of plaintiff’s claims, and plaintiff’s motion is denied in its entirety.

IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion for
summary judgment (Doc. # 34) is hereby granted, and judgment shall be entered in favor
of defendant on plaintiff’s claims.

IT IS FURTHER ORDERED BY THE COURT THAT plaintiff’s motion for
summary judgment (Doc. # 36) is hereby denied.

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IT IS SO ORDERED.

Dated this 5th day of February, 2019, in Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

20