Solomon v. Bert Bell/Pete Rozelle NFL Player Retirement Plan et al
MEMORANDUM AND ORDER Granting in Part 23 Motion for Summary Judgment; Denying 27 Motion for Summary Judgment. Signed by Judge Marvin J. Garbis on 3/4/2016. (bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
THE BERT BELL/PETE ROZELLE NFL
PLAYER RETIREMENT PLAN and THE
NFL PLAYER SUPPLEMENTAL
CIVIL ACTION NO. MJG-14-3570
MEMORANDUM AND ORDER RE: MOTIONS FOR SUMMARY JUDGMENT
The Court has before it Plaintiff's Motion for Summary
Judgment [ECF No. 23], Defendants' Motion for Judgment on the
Administrative Record [ECF No. 27], and the materials submitted
The Court has held a hearing and had the
benefit of the arguments of counsel.
As discussed herein, Plaintiff Jesse Solomon ("Solomon")
has sued Defendants the Bert Bell/Pete Rozelle NFL Player
Retirement Plan and the NFL Player Supplemental Disability Plan
(collectively referred to as "the Plan") for payment of certain
Upon his graduation from Florida State University in 1986
with a Bachelor's degree in Political Science, Solomon played
Minnesota Vikings until 1989.
In 1989, he was traded to the
Dallas Cowboys and played for that team until 1991.
In 1991, he
was traded to the New England Patriots and then immediately retraded to the Tampa Bay Buccaneers, for whom he played in 199192.
He was released by the Buccaneers in 1992 and played for
the Atlanta Falcons from 1992 until 1994.
In 1994, he signed
professional football at the end of the 1994/95 season.
Over the course of his nine-season NFL career, it is
estimated that Solomon sustained approximately 69,000 "fullspeed contact hits."
"Too many times to count," he
experienced "triple vision" after an impact and would, at times,
"lose sense of who [he was]."
sustained numerous injuries to his knees and underwent multiple
knee operations to repair ligaments, tendons, and scar tissue.
All citations herein to "AR" refer to the Administrative
Record filed under seal by the Plan [ECF No. 28].
Following his NFL career, Solomon completed a Master's
degree program at Florida A&M University, obtained a Florida
teaching and coaching certificate, and worked, starting in 2001,
as a high school football coach and physical education
But, as time passed, he suffered increasingly from
chronic headaches, joint problems, depression, and anxiety.
In 2005, an MRI of Solomon's brain revealed abnormalities
that his physician, Dr. Hudson, opined were "most likely a
result of multiple high velocity impacts in a helmet-to-helmet
fashion and chronic concussion syndrome."
In that same
report, Dr. Hudson noted that he suffered from a wide variety of
injuries "that are likely to worsen with time and are seemingly
the result of the violent conditions he experienced during his
In 2007, Solomon was forced to resign from
his high school teaching and coaching job because of changing
behaviors, namely that he kept "losing his cool."
has been unemployed ever since.
On October 29, 2008, an Occupational Therapist, Brian
Matuszak, opined that Solomon was totally and permanently
disabled ("TPD"), noting:
Mr. Solomon is not able to perform even
SEDENTARY level of work secondary to his
inability to sit greater than 10 mins. at
one time without change in positioning,
stand for greater than 2-3 mins. at one time
and walk for greater than 10-15 mins. at one
time, poor concentration requiring frequent
redirection secondary to his focus on pain
which inhibits vocational productivity, poor
overall endurance inhibiting ability to
maintain basic positional tolerances and
sustain concentration to perform sedentary
tasks over a full workday.
The Plan provides disability benefits to, among others not
here relevant, retired players like Solomon who become TPD as a
result of their football career and are thus unable to work
The level of benefits paid varies depending
upon when the player's disability manifested.
"Football Degenerative" benefits2 are paid for
disabilities stemming from a player's football career
that manifest within 15 years of retirement;
See Plan Section 5.1(c), AR 023.
Lesser "Inactive" benefits are paid for disabilities
not stemming from a player's football career, or if
stemming from a player's football career, that did not
manifest within 15 years of retirement.
See Plan Section 5.1(d), AR 023-24.
However it is
of these benefits as of the date of the Board
at issue is different from the amount at present.
clear that, at all times, Football Degenerative
greater than Inactive benefits.
Because Solomon retired at the end of the 1994/95 season,
in order to be eligible for Football Degenerative benefits, his
disability must have manifested by March 31, 2010.
The Plan provides a review process for consideration of
applications for disability benefits from current and former
Applications are initially considered by a two-
person Disability Initial Claims Committee ("the Committee").
An applicant can appeal from an adverse Committee decision to
the six member3 Retirement Board ("the Board").
On March 11, 2009, Solomon, not represented by an attorney,
applied to the Disability Initial Claims Committee ("the First
Application") for T&P benefits under the Plan, claiming that he
was TPD based on a variety of orthopedic impairments.
On May 14, 2009, the Committee denied the First
On July 13, 2009, Solomon filed an application with the
Social Security Administration ("SSA") for Social Security
Three appointed by the NFL and three by the NFL Players
Pl.'s Mem. [ECF No. 23-1] at 16.
application was later4 supplemented or superseded.
On August 3, 2009, while his SSA application was pending,
Solomon appealed the Committee's denial of his T&P benefits
application ("the First Appeal") to the Board.
November 19, 2009, the Board denied the First Appeal.
On December 12, 2010, Solomon filed a second, different
application ("the Second Application") with the Committee,
seeking T&P benefits under the Plan related to neurological and
cognitive impairments resulting from countless helmet-to-helmet
impacts sustained during his NFL career.
Committee was deadlocked as to whether Solomon was TPD, and his
application was deemed denied on March 9, 2011.
April 27, 2011, Solomon appealed the denial of the Second
Application to the Board ("the Second Appeal").
On June 21, 2011, while the Second Appeal was pending, an
SSA Administrative Law Judge issued a Notice of granting Solomon
disability benefits and stating:
I found you disabled as of October 29, 2008
because your impairment or combination of
impairments is so severe that you cannot
perform any work existing in significant
numbers in the national economy.
On December 20, 2010.
Solomon was awarded SSA benefits retroactive to April
payments of $2,063.00 effective August 2011.
On August 4, 2011, the Board designated Solomon TPD,
awarding benefits effective October 1, 2010.6
Because the Board determined that Solomon had not become TPD
within 15 years of this retirement (i.e., by March 31, 2010), he
was awarded Inactive level benefits. Id.
The Board, however,
notified Solomon that he had a right to appeal to the Board for
reconsideration of his level of benefits.
On September 27, 2011, Solomon appealed to the Board
seeking reclassification of benefits to the Football
Degenerative category and contending that he became TPD before
the March 31, 2010 cutoff date for Football Degenerative
benefits ("the Third Appeal").
On November 16, 2011,
the Board rejected the Third Appeal, stating that the record did
The SSA Notice of Decision stated, "you have to be disabled
for 5 full calendar months in a row before you can be entitled
to benefits." AR 686. Thus, because Solomon was found TPD as
of the end of October 2008, his benefits did not begin until
April 2009. He received retroactive benefits from that date
through June 2011, minus an amount subtracted by the SSA for
payment of his representative (AR 687), and an amount for July
2011. Regular monthly payments began effective August 2011.
In most cases, the Board awards retroactive benefits beginning
on the first day of the month that is two months before the
application was filed. Because Solomon's Second Application was
filed in December 2010, the first day of the month two months
previous was October 1, 2010.
not support a finding that he had become TPD prior to the cutoff
A November 23, 2011 letter informing Solomon
of the Board's denial of the Third Appeal stated that the denial
was a "final decision on review within the meaning of section
503 of the Employee Retirement Income Security Act of 1974"
("ERISA") and that, to challenge the decision, Solomon could
file suit under ERISA § 502(a).
Judicial Procedural Posture
On November 14, 2014, Solomon filed the instant lawsuit for
denial of benefits, pursuant to ERISA § 502(a)(1)(B), 29 U.S.C.
§ 1132,7 in response to the Board's November 2011 final denial of
Football Degenerative benefits.
The parties have filed cross-motions for summary judgment
and agree that there are no genuine issues of material fact with
regard to Solomon's claim of entitlement to Football
Hence, summary judgment is appropriate
in regard to that claim.8
"A civil action may be brought by a participant or beneficiary
. . . to recover benefits due to him under the terms of the
plan, to enforce his rights under the terms of the plan, or to
clarify his rights to future benefits under the terms of the
plan." 29 U.S.C. § 1132(a)(1)(B).
A motion for summary judgment shall be granted if the
pleadings and supporting documents "show that there is no
genuine dispute as to any material fact and the movant is
Level of Benefits
As stated above, the Plan provides benefits to retired
players who become TPD as a result of their NFL career.
"Football Degenerative" benefits are paid in regard to such
disabilities that manifest within 15 years of retirement.
Lesser "Inactive" benefits are paid in regard to such
disabilities that manifest more than fifteen years after
The parties agree that Solomon's total and permanent
disability stemmed from his football career.
See Defs.' Opp.
and Reply [ECF No. 33] at 1 ("When the Retirement Board denied
Solomon's request for Football Degenerative benefits, it never
questioned his diagnosis or whether his impairments were caused
by League football activities."). However, they disagree as to
whether his disability had manifested within fifteen years of
his retirement, i.e., by March 31, 2010.
Solomon contends that the Board wrongly denied him Football
Degenerative benefits because:
The Board was required to accept the Social Security
Administration determination that he became TPD as of
October 29, 2008, and
entitled to judgment as a matter of law."
Fed. R. Civ. P.
The Board abused its discretion in failing to find
that he was TPD by March 31, 2010.
The Court shall address these contentions in turn.
The Social Security Determination
As stated above, while the Second Appeal was pending, the
Social Security Administration issued a Notice of Decision,
finding Solomon TPD as of October 29, 2008 and awarding monthly
disability benefits of $2,063.00 retroactive to April 2009.
Solomon contends that, by virtue of the Social Security
determination, the Board was bound to award him the Football
Degenerative benefits he sought.
At the time of the Board decision at issue, Section 5.2(b)
of the Plan stated:
Social Security Awards.
Effective April 1,
2007, a Player who has been determined by
the Social Security Administration to be
insurance program or Supplemental Security
Income program, and who is still receiving
such benefits at the time he applies, will
be deemed to be totally and permanently
disabled . . . .9
Subject to an exception not here relevant regarding fraudulent
receipt of Social Security benefits.
The Plan concedes that, by virtue of this provision, it was
bound by the SSA determination that Solomon was TPD but argues
it was not bound to accept the SSA determination of the date on
which he became TPD.
As the Plan stated regarding denial of the
Third Appeal, "the Retirement Board noted your argument that the
Social Security Administration set the effective date of your
disability benefits at October 29, 2008.
The Retirement Board
found that such effective date decisions are not binding on the
Plan, and that the issue of classification is based on all the
facts and circumstances."
The Plan takes the position that, despite the SSA
decision's statement that Solomon was TPD as of October 29,
2008, it was not required by Section 5.2(b) to accept the onset
date determined by the SSA.
The Plan contends that it is bound
only as of the date that the SSA decision is presented to the
The Court finds the Plan's position regarding the
meaning of Section 5.2(b) erroneous.
Section 5.2(b), as in effect until 2014, does not
expressly state the date as of which an SSA disability award
binds the Plan.
The Court finds, contrary to the Plan position,
that the most reasonable – perhaps the only reasonable –
interpretation is that the SSA determination is binding as to
the findings made by the SSA.
That is, that the player was TPD
on the date as of which SSA awards benefits.
The SSA does not
determine the level of Plan benefits because the SSA's award is
not dependent upon a finding that the disability stemmed from
the player's NFL career.
This interpretation is supported by the Plan's 2014
As noted by the Plan, Section 5.2(b) was amended in
2014 "so that it now explicitly states that 'determinations by
the Social Security Administration as to the timing . . . of
total and permanent disability are not binding' on the
Retirement Board when making classification decisions."
Defs.' Mem. [ECF No. 27-1] at 20-21.
Such a change is generally
viewed as indicating a change of meaning.
See, e.g., DIRECTV,
Inc. v. Brown, 371 F.3d 814, 817 (11th Cir. 2004).
Even if the
amendment is viewed as clearing up an ambiguity in the plan
prior to amendment, the ambiguity should be construed against
As stated by the United States Court of Appeals
for the Fourth Circuit in Glocker v. W.R. Grace & Co., 974 F.2d
540 (4th Cir. 1992), pertaining to an ERISA plan:
Alleged ambiguities should be reconciled, if
possible, by giving language its ordinary
meaning and, if necessary, by admitting
ambiguities remain, the Plan should be
construed against the drafter, in this case
[the employer] . . . .
Id. at 544.
The Plan suggests that an unpublished district court
decision, Bryant v. Bert Bell/Pete Rozelle NFL Player Retirement
Plan, Civ. No. 1:12-cv-936-MHC (N.D. Ga. March 23, 2015) [ECF
No. 27-2], supports its position.
This Court would – if
presented with the facts of the Bryant case, reach the same
bottom line conclusion but not for the reason proposed by the
The Bryant decision did not turn upon the issue critical
to Solomon, that is, whether an SSA determination of the
disability onset date was binding on the Plan under Section 5.2
of the Plan as it existed prior to the 2014 amendment.
Nevertheless, even if Bryant is read as stating an opinion (not
necessary to the decision) that the SSA date was not binding on
the Plan, this Court would respectfully disagree.
In the instant case, the parties agree that Solomon became
TPD stemming from his NFL career and disagree only as to the
In Bryant, there was agreement that the player had
become TPD but disagreement as to both the onset date and
whether the disability stemmed from the player's football
On December 1, 2008, Bryant applied for T&P benefits, and
the application was denied promptly because Bryant was then
Bryant did not file a timely appeal to the Board.
did, however, thereafter apply to the SSA for disability
Sometime prior to June 10, 2010, the SSA granted Bryant
social security disability benefits with a finding of disability
as of December 1, 2009 and granted benefits to begin in May
Bryant appealed, in SSA proceedings, the determination of
the date of onset of his disability.
In his SSA appeal, Bryant
contended that he was TPD as of June 1, 2008 rather than
December 1, 2009.
On June 10, 2010, while his SSA appeal was pending, Bryant
reapplied to the Plan for T&P benefits.
On July 8, 2010, the
Committee awarded Bryant Inactive T&P benefits based on the
SSA's December 1, 2009 disability onset date, relying upon
The Committee denied Football Degenerative
benefits because it found that the onset of his disability was
more than 15 years after the end of Bryant's football career,
i.e., after March 31, 2009.10
The Committee did not determine
whether Bryant's disability stemmed from his football career.
On February 24, 2011, an SSA Administrative Law Judge ruled
for Bryant with regard to his SSA appeal, determining that his
disability onset date was June 1, 2008.
Fifteen years after his retirement.
On or about April 20, 2011, Bryant petitioned the Committee
to reclassify his benefits as Football Degenerative, based upon
Section 5.5(b) of the Plan.
That section permits
reclassification of benefits if a player shows the Committee by
clear and convincing evidence "that, because of changed
circumstances, the Player satisfies the conditions of
eligibility for a benefit under a different category of total
and permanent disability benefits."
Bryant [ECF No. 27-2] at 12
(emphasis in original).
Bryant contended that the SSA change of his disability
onset date constituted "changed circumstances" under Section 5.5
and that it was "clear from the Administrative Law Judge's
decision that [his] totally and permanently disabling
impairments are football related."
Id. at 5.
The Committee denied Bryant's petition on or around June
Bryant then appealed to the Board.
As stated by the
The Board denied the appeal at its August 4,
2011 meeting (AR 223-26), reiterating that
"the fact of a new Social Security date does
not constitute a 'changed circumstance'
within the meaning of the Plan." (AR 225.)
The Board stated that it "has interpreted
the term 'changed circumstances' to mean a
change in the Player's physical condition,
such as a new or different disability."
(Id.) The Board then opined that, even if
changed circumstances were "hypothetically
present," the evidence was not "clear and
convincing" because the SSA's findings were
not binding on the Board and the Board did
not have the records that were available to
the ALJ. (Id.) There is nothing in the
Board's decision that indicated whether
Id. at 6-7.
Bryant filed suit in the Northern District of Georgia on or
about March 20, 2012.
He contended that the SSA's determination
of a June 1, 2008 disability onset date constituted a "changed
circumstance" and that it was clear that his disability was
The Bryant court held that "the Plan's interpretation of
the term 'changed circumstances' as meaning a change in physical
condition is within the authority of the Plan and reasonable."
Id. at 14-15.
Therefore, regardless of the onset date change,
Bryant had not established entitlement to Football Degenerative
Bryant's attempt to rely upon Section 5.2(b) of the plan
was also rejected.
The Bryant court stated:
. . . Section 5.2(b) of the Plan does one
thing and one thing only - it deems any
determination made by the SSA to be totally
and permanently disabled under the Plan.
That entitles the Player to T&P disability
category of those benefits.
decision of the SSA to change the date for
the onset of Bryant's disability did not
result in the automatic awarding of Football
Degenerative T&P benefits under Section
5.2(b). Consequently, this Court concludes
that the Board's decision that the SSA's
determination of the date of disability does
not obligate the Plan to award a certain
category of T&P disability benefits is not
Id. at 15-16.
The Bryant court was not faced with a situation in which
(as in the instant case) the onset date of disability was
determinative of the level of benefits.
Hence, the Bryant
decision did not turn on the onset date as a substantive matter.
Rather, Bryant turned on the procedural question whether a
changed onset date would constitute "changed circumstances"
under Section 5.5.
It would not.
Bryant did not establish by
clear and convincing evidence that there had been a change in
his physical condition from that considered previously, such as
a new or different disability, that would satisfy the conditions
of eligibility for Football Degenerative level benefits.
The Court agrees with the Bryant court that "[t]he
subsequent decision of the SSA to change the date for the onset
of Bryant's disability did not result in the automatic awarding
of Football Degenerative T&P benefits under Section 5.2(b)."
Id. at 16.
That is because the SSA finding changing the date of
onset of disability to be within 15 years of retirement did not
address, much less determine, whether Bryant's disability
stemmed from his football career.
The bottom line is that the Court finds that Section 5.2(b)
of the Plan, as it existed at times pertinent to the instant
case, provided that the Plan was bound by the fact, and onset
date, of disability found by the SSA when it made its disability
award to Solomon.
Inasmuch as the parties agree that Solomon's
disability stemmed from his NFL career, he is entitled to
Football Degenerative benefits.
The Board's Abuse of Discretion
As discussed herein, if the SSA determination of the onset
date of Solomon's disability were not given conclusive effect,
the Court would find that the Board abused its discretion in
denying Solomon Football Degenerative benefits.
Standard of Review
"When a plan administrator's denial of benefits was based
on an exercise of discretion . . . judicial review of the denial
of benefits is for abuse of discretion."
Switzer v. Benefits
Admin. Comm., No. MJG-13-1613, 2014 WL 4052855, at *7 (D. Md.
Aug. 13, 2014).
Section 8.9 of the Plan, pertaining to
"deciding claims for benefits," states:
In deciding claims for benefits under this
Plan, the Retirement Board and Disability
Initial Claims Committee will consider all
information in the Player's administrative
record, and shall have full and absolute
discretion to determine the relative weight
to give to such information.
Therefore, the abuse of discretion standard applies and
the Board's denial of Solomon's Third Appeal will be set aside
"only if it is not reasonable."
Switzer, 2014 WL 4052855, at
In determining whether a plan administrator abused its
discretion, a court may not "re-weigh the evidence itself" or
"substitute its own judgment in place of the judgment of the
"The administrator's decision is reasonable 'if it is the
result of a deliberate, principled reasoning process and if it
is supported by substantial evidence.'"
Duperry v. Life Ins.
Co. of N. Am., 632 F.3d 860, 869 (4th Cir. 2011) (quoting
Bernstein v. CapitalCare, Inc., 70 F.3d 783, 788 (4th Cir.
"Substantial evidence" is "evidence which a reasoning
mind would accept as sufficient to support a particular
Switzer, 2014 WL 4052855, at *7 (citation
Courts in this circuit consider, inter alia, eight factors
in reviewing a plan administrator's decision for reasonableness:
(1) the language of the plan, (2) the purposes and goals of the
plan, (3) the adequacy of the materials considered to make the
decision and the degree to which they support it, (4) whether
the Retirement Board's interpretation was consistent with other
provisions in the Plan and with earlier interpretations thereof,
(5) whether the decision-making process was reasoned and
principled, (6) whether the decision was consistent with the
procedural and substantive requirements of ERISA, (7) any
external standard relevant to the exercise of discretion, and
(8) the Retirement Board's motives and any conflict of interest
it may have.
Booth v. Wal-Mart Stores, Inc. Assocs. Health &
Welfare Plan, 201 F.3d 335, 342–43 (4th Cir. 2000).
It is well settled that "it is not an abuse of discretion
for a plan fiduciary to deny . . . benefits where conflicting
medical reports were presented."
F.3d 601, 606 (4th Cir. 1999);
4052855, at *9.
Elliott v. Sara Lee Corp., 190
see also Switzer, 2014 WL
Indeed, it is the responsibility of the plan
administrator, not the Court, to resolve conflicting medical
Spry v. Eaton Corp. Long Term Disability Plan, 326
F. App'x 674, 679 (4th Cir. 2009);
Webster v. Black & Decker
(U.S.) Inc., 33 F. App'x 69, 75 (4th Cir. 2002).
administrators do not bear the "discrete burden of explanation
when they credit reliable evidence that conflicts" with a
claimant's evidence, they cannot "arbitrarily refuse to credit a
claimant's reliable evidence, including the opinions of a
Black & Decker Disability Plan v. Nord,
538 U.S. 822, 834 (2003).
The Board's Decision
The Court finds that the Board's determination, that
Solomon was not TPD as of March 31, 2010 based on his cognitive
impairments, was not "the result of a deliberate, principled
reasoning process and . . . supported by substantial evidence."
Bernstein v. CapitalCare, Inc., 70 F.3d 783, 788 (4th Cir.
The evidence supporting Solomon's position was
overwhelming and not opposed by any substantial evidence
supporting the Board's decision.
For example, the evidence in the record includes:
The December 15, 2005 MRI of Solomon's brain showing
"white matter changes in the deep white matter of both
parietal lobes", AR 346;
The February 15, 2006 letter from Dr. Hudson noting
"chronic headaches" and stating the white matter
changes observed in the 2005 MRI "are most likely a
result of multiple high velocity impacts in a helmetto-helmet fashion and chronic concussion syndrome," AR
Solomon's resignation from his coaching job in
November 2007 related to "escalating" thoughts and
behaviors stemming from his cognitive impairments, AR
Solomon's unemployment since resigning from his
coaching job in November 2007, AR 616;
The June 10, 2008 letter from Dr. Hudson noting
"progressive numbness" in Solomon's hands and feet
related to the changes in Solomon's brain observed in
the 2005 MRI, AR 371;
The October 29, 2008 Functional Capacity Evaluation
finding Solomon TPD and noting, inter alia, his
inability to "sustain concentration to perform
sedentary tasks over a full workday," AR 435;
The June 11, 2009 letter from Dr. Hudson noting that
Solomon will require treatment from a "variety of
medical specialists" and will never "obtain or
sustain meaningful employment," AR 500;
The June 11, 2010 MRI of Solomon's brain and resulting
report by Dr. Stallworth finding diffuse axonal
injury, a devastating traumatic brain injury, AR 780;
The August 23, 2010 evaluation by Dr. Fernandez noting
complaint of worsening cognition over a 5-10 year
period, including "decreased attention, poor
concentration, slurred speech, decreased recall, and
increased irritability," AR 781;
The February 17, 2011 evaluation by Plan physician,
Dr. DiDio, noting Solomon's worsening cognition over
5-10 years, AR 615; and
The April 11, 2011 letter from Dr. Hudson noting
Solomon's "severe cognitive impairments" and saying
"it has been my contention for the recent past" that
Solomon was TPD, AR 667.
Perhaps the most significant unrefuted evidence is the
confirmation of the pre-March 31, 2010 cognitive disability by
the June 2010 diagnosis of diffuse axonal injury.
There is no
evidence to support the notion that this condition manifested
less than three months prior to the diagnosis.
February 2011, the Plan's own neurologist noted that Solomon had
suffered from worsening cognition over 5-10 years, not that his
condition had suddenly deteriorated in the 11 months since March
The Res Judicata Contention
The Plan presents a res judicata theory, stating that, in
reaching its decision regarding the TPD onset date:
determined (in conjunction with a previous
application for T&P benefits [the First
Application]) that Solomon was not totally
and permanently disabled as late as November
19, 2009. Solomon never challenged that
prior decision, and absent a challenge the
Retirement Board treated that prior decision
as res judicata, as it must to prevent a
otherwise final benefits decision.
between November 19, 2009 and March 31,
2010, and what little there is does not
permanently disabled prior to the Football
Defs.' Mem. [ECF No. 27-1] at 3.
The Court finds the Plan's position untenable at least11 by
virtue of § 5.2(d) of the Plan, which states:
The Court is not herein addressing Solomon's additional
arguments regarding the Plan's res judicata contentions.
A Player whose claim for benefits . . . has
been denied and is not subject to further
permanently disabled under the provisions of
Section 5.2(a) for twelve months following
the date of such final denial. . . . This
application that first informs the Plan of
an award of disability benefits under the
Social Security disability Insurance program
or Supplemental Security Income program to
Of course, Solomon could not have informed the Plan of the
June 21, 2011 award to him of SSA benefits in the course of the
First Application that resulted in the November 19, 2009
Solomon first informed the Plan of the SSA award in
the course of the Second Application.
Hence, the "res judicata"
effect of § 5.2(d) is inapplicable with regard to the Second
Ordinarily, a court finding improperly denied benefits
would remand the case for further proceedings before the plan
Gorski v. ITT Long Term Disability Plan for
Salaried Employees, 314 F. App'x 540, 548 (4th Cir. 2008) ("[I]t
is generally the case that when a plan administrator's decision
is overturned, a remand for a new determination is
However, when a plan administrator abuses its
discretion, the Court may award benefits to the claimant rather
than remand the case.
Helton v. AT&T Inc., 709 F.3d 343, 360
(4th Cir. 2013) (affirming district court's award of summary
judgment and retroactive benefits to plaintiff, noting that
"remand is not required, particularly in cases in which evidence
shows that the administrator abused its discretion");
314 F. App'x at 549 (reinstatement of benefits was the
appropriate remedy when plan administrator's termination of
those benefits was an abuse of discretion).
In the instant case, neither side seeks remand.
shall, therefore, determine that Solomon is entitled to Football
Solomon's Second Application, seeking Football Degenerative
benefits, was filed on December 12, 2010.
The Board rejected
the claim for Football Degenerative benefits but awarded
The Plan, pursuant to its usual practice,12
awarded these benefits retroactively to October 1, 2010.
The Plan generally awards TPD benefits retroactive to the
first day of the month beginning two months prior to the
application's filing date. Plan § 5.6(a), AR 028 ("For a
written application for total and permanent disability benefits
. . . that resulted in the award of the total and permanent
The Plan provides that, if "an application was delayed
because of the Player's mental incapacity," up to 36 months of
benefits may be retroactively awarded.
Plan § 5.6(a), AR 028.
Solomon contends that his filing the Second Application was
delayed more than three years by virtue of his mental
However, because of the existence of genuine issues
of material fact regarding this contention, the matter cannot be
resolved on cross motions for summary judgment
Solomon states, in the conclusion of his memorandum in support
of his Motion for summary judgment, ECF No. 31 at 35, that he
wishes to receive prejudgment interest.
Neither party has
addressed the matter in their briefing or at the hearing on the
Therefore, the issue shall not be resolved by
the instant decision.
disability benefits that is received on or after April 1, 2008,
total and permanent disability benefits will be paid retroactive
to the first day of the month that is two months prior to the
date such application . . . is received.").
For the foregoing reasons:
Plaintiff's Motion for Summary Judgment [ECF No. 23]
is GRANTED in part.
Plaintiff shall be awarded Football Degenerative
Defendants' Motion for Judgment on the
Administrative Record [ECF No. 27] is DENIED.
By April 8, 2016, Plaintiff shall arrange a
telephone conference to identify those matters that
require resolution prior to the entry of final
judgment and such further proceedings as may be
SO ORDERED, this Friday, March 04, 2016.
Marvin J. Garbis
United States District Judge
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