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May 5, 1994


The opinion of the court was delivered by: MILTON I. SHADUR

 Lawrence Chandler ("Chandler") has filed this action under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. ยงยง 1001-1461, *fn1" against his former employer Underwriters Laboratories Inc. ("UL"). Chandler charges that UL:

1. improperly denied him Long Term disability benefits under its Salary Continuation Plan ("Plan") in violation of Section 1132(a)(1)(B), and
2. retaliatorily discharged him after he asserted a claim for benefits under the Plan in violation of Section 1140.

 UL has responded that Chandler was correctly denied benefits and properly discharged, and it relatedly asserts that it is entitled to a partial rebate of amounts previously paid to Chandler under the Plan.

 UL has now moved for summary judgment on all of those issues under Fed. R. Civ. P. ("Rule") 56. *fn2" For the reasons stated in this memorandum opinion and order, UL's motion and counterclaim are granted in their entirety and this action is dismissed with prejudice.


 Background of Chandler's Employment and Medical History

 Chandler began his employment with UL on February 3, 1958 (D. 12(m) P 7). Beginning in March 1983 he was assigned to work as a Senior Field Representative out of UL's Park Forest *fn4" Inspection Center (D. 12(m) P 8), visiting companies to inspect products enjoying the UL mark of approval. That required a significant amount of driving to and from such companies (19,306 miles in 1990), and then walking to conduct the necessary inspections once at the companies (D. 12(m) P 10).

 Chandler had a long history of medical problems during his career at UL. For present purposes the account may begin with two injuries suffered during inspections, one when he injured his lower back on November 30, 1990 and the other when he fell in a parking lot on January 11, 1991 (D. 12(m) PP 12i, 12k). Just a day before that last injury Chandler had sent a letter to Gary Hansen ("Hansen"), the Associate Managing Engineer in UL's Follow-Up Services Department at Northbrook, describing his need for a third hernia operation and his continuing problems with and therapies for his back (id. P 12j).

 Some time before February 5, 1991 the then Managing Engineer of UL's Follow-Up Services Department at its Northbrook office Richard Clinard ("Clinard") met with Hansen and another Associate Managing Engineer also at Northbrook, Tim Russell ("Russell"), to discuss Chandler's transfer to a "desk job" at the Northbrook offices (Clinard Dep. 38-39). They agreed on that transfer and then met with Chandler to tell him about it. At his deposition Chandler testified to his understanding that if "my problems cleared up" he would be returned to his old job as a Senior Field Representative (P. 12(n)(1) P 11; Chandler Dep. 155-57). *fn5" On February 5, 1991 he transferred to Northbrook as an Engineering Assistant (Clinard Dep. 40-41), a desk job that had no counterpart in the Park Forest office or in UL's Elmhurst inspection center (D. 12(m) P 14).

 After Chandler's transfer his medical problems continued. On February 8, 1991 he had another car accident resulting in a trip to a hospital, and from February 12 to April 1, 1991 he was absent from work due to his third hernia operation and back problems (D. 12(m) PP 15-16). When Chandler returned to work on April 1 he was expected "to work full scheduled time" (Doc. D00011). *fn6" But UL's April 17, 1991 "Return to Work Recommendation" limited Chandler's work day to 6 hours (D. Ex. 5P at DD0261), apparently in response to a recommendation by orthopedic surgeon Dr. Richard Beaty that Chandler "May do old job limit driving & Hrs. to 8 1/2 hrs/day" (D. 12(m) P 17; D. Ex. 5P at DD0262). That 6-hour limitation was imposed because Chandler had a 96-mile round trip commute from his Tinley Park home to his Northbrook job (D. 12(m) P 18). UL also assigned him a parking spot closer to his office building to minimize his walking (D. 12(m) P 17). Chandler continued working a reduced work day until August 7, 1991, when he went on paid disability leave until October 7, 1991 for prostate surgery (D. 12(m) P 19). After Chandler returned to work on a full-time basis on October 7, he left work again on October 22, 1991 for surgery on a herniated disc in his neck. That surgery was performed on October 30 by Dr. Danilo B. Soriano (D. 12(m) PP 24).

 Denial of Disability Benefits

 On November 8, 1991 UL's Assistant to the Treasurer Robert Scott ("Scott")--who manages Corporate Employee Benefits, the department that "facilitates claims under UL's" Plan--informed Chandler that "due to the complex nature of your disability" his claim had been referred to Parkside Health Management Corporation ("Parkside"). *fn7" Scott asked Chandler to provide Parkside "with any information they might need regarding your disability" (D. 12(m) P 27).

 Parkside recommended paid short-term disability leave through February 27 and later through June 26, 1992, recommendations that UL accepted and implemented (D. 12(m) PP 31, 32, 38). On July 13, 1992 Parkside's Physician Advisor Dr. George Beranek reviewed its information about Chandler and concluded that he had been "cleared by his attending physicians to return to work with certain restrictions" (Kreie Aff. P 16; D. 12(m) P 44). Next day Parkside sent a Notice of Program Compliance ("Notice") to Scott to that effect, "recommend[ing] non-authorization beyond 6/26/92" (D. Ex. 25; D. 12(m) P 45).

 Based on that recommendation and on a review of Chandler's medical information maintained in Scott's department, Scott concluded that Chandler was no longer eligible for benefits under the Plan because (D. 12(m) P 46; Scott Aff. P 17):

It appeared that Chandler's primary limitation was his inability to make a lengthy commute and this limitation did not appear to be a covered "disability" based on the terms of the Salary Continuation Plan.

 Chandler's Appeal of Denial of Benefits

 When Chandler did not report for work on August 3 (D. 12(m) P 48), Ryder again wrote Chandler on August 4 (D. 12(m) P 49; D. Ex. 28) stating that (1) his claim for benefits under the Plan had been denied based on Parkside's conclusion that he had been able to return to work since June 26, 1992, (2) she was enclosing "a page" from the Plan explaining his right to appeal that decision, *fn8" (3) his payroll check had been cancelled because he had not returned to work as requested and (4) "continued failure to return to work may lead to further action up to and including termination." When Chandler still did not report for work, Ryder sent yet another letter on September 2 reiterating parts of her earlier letter and telling Chandler (1) that he had 65 days after the denial of his claim to "file a written request for a review of the claim denial" and (2) that retroactively to August 3 he had been put on an "unpaid Leave of Absence (LOA)" to continue for the 65-day appeal period (D. 12(m) P 51; D. Ex. 29 at DD0347). Chandler appealed the discontinuation of his benefits through a September 29, 1992 letter from his attorney (D. 12(m) P 52).

 Under the Plan a Committee on Claims ("Appeals Committee") comprising three UL Vice Presidents (Treasurer Lawrence Newman ("Newman"), General Counsel Debra Rade ("Rade") and Secretary Ken Melnick ("Melnick")) had been appointed to hear appeals challenging the denial of benefits (D. 12(m) P 54). Scott prepared a memorandum for Newman (D. 12(m) P 56; D. Ex. 34) that summarized and attached Parkside's April 3, 1992 Notice that had recommended the authorization of benefits through June 27, 1992, Parkside's July 14, 1992 Notice, Ryder's three letters to Chandler and four doctors' letters from the June-July 1992 period--one each from Dr. Ronald Mochizuki, Dr. Beaty, rheumatologist Dr. Richard Gainey and Dr. Robert Eilers of Physical Medicine and Rehabilitation Associates. Scott also enclosed some items submitted by Chandler's lawyer: the same note from Dr. Eilers, an earlier letter from Dr. Gainey, a "Neuropsychological Evaluation" conducted on September 23 and 28 and October 7, 1992 by Clinical Psychologist Denise Gehrling, Ph.D. and this brief August 12, 1992 letter from Professor of Urology Dr. Ilija Sreckovic:

I had the opportunity to see you on the day of August 12, 1992 as well as July 14, 1992. I would like to stress that your overall condition and illness lead me to give you 100% disability for any work.
Please seek for disability immediately.

 Scott's forwarding memorandum said that the additional evidence submitted by Chandler had been sent to Parkside for evaluation and that Parkside had reaffirmed its recommendation that Chandler was not eligible for benefits beyond June 26, 1992 (D. Ex. 34 at DD0411; D. Exs. 35, 36). In his later-prepared affidavit Scott states that he did not include Chandler's complete and extensive medical history because Chandler had been on approved disability leave until June 26, 1992 and the sole issue for purposes of Chandler's appeal was his "most recent medical status" (D. 12(m) P 56; Scott Aff. P 24). Newman sent copies of Scott's memorandum and its attachments to Rade and Melnick.

 On November 19, 1992 the Appeals Committee met and discussed the case for a half hour, concluded that Chandler could perform his prior job and hence denied his appeal (D. 12(m) PP 58, 58d, 58e). It was the Appeals Committee's understanding that Chandler was still able to perform his desk job at Northbrook (D. 12(m) PP 58c, 58c(4), 58e). They found that Chandler's "primary limitation" was an inability to tolerate a lengthy commute, which they determined was not a disability within the meaning of the Plan, but rather a "limitation within the control of the employee" (D. 12(m) P 58e). For that purpose they relied on the medical evidence: the letters from Drs. Mochizuki, Beaty, Gainey (his later letter) and Eilers, plus Parkside's recommendation that benefits not be authorized past June 26, 1992.

 It was clear that the Appeals Committee had also considered the materials emanating from Chandler's counsel. It did not credit Dr. Sreckovic's conclusion that Chandler was "100%" disabled because it was inconsistent with all of the other medical evidence (D. 12(m) P 58(e)). As for Dr. Gehrling's evaluation, the Appeals Committee decided not to consider it as part of the claim before it--the neuropsychological claim had not gone through UL's regular claims process, and the Appeals Committee was after all an appellate body.

 On November 23, 1992 Newman wrote Chandler that the appeals Committee had "unanimously denied" his appeal because (D. 12(m) P 59, D. Ex. 37 at DD0441):

In particular, information we reviewed indicated that you are capable of performing the duties of your present job. An individual who is capable of performing the duties of his present job, irrespective of whether or not he is capable of tolerating a lengthy commuting distance, does not present a condition which constituted a disability under the Plan.

 But to dispel any notion that it had turned down the newly-proffered material (Dr. Gehrling's evaluation) on the merits, Newman went on to say that the denial related only to Chandler's "original disability claim" and that Dr. Gehrling's evaluation would be treated as a "new psychological claim" that would be "handled through our disability review process" to determine if it constituted a disability under the Plan (id. at DD0441).

 Denial of Chandler's Psychological Claim

 UL continued Chandler's LOA status while it awaited a determination on his neuropsychological claim (D. 12(m) P 61). In response to a February 2, 1993 fax inquiry from UL (D. Ex. 38 at DD0444), Parkside stated that it recommended denying Chandler's second claim based only on Dr. Gehrling's "Neuropsychological Evaluation" (it had received no other information or correspondence about that claim from Chandler or his representative) (D. 12(m) P 62; D. Ex. 38 at DD0445; Scott Aff. P 27). On February 5 Ryder wrote Chandler that his second claim was denied because (D. 12(m) P 63; D. Ex. 40 at DD0452):

1. Dr. Gehrling's evaluation did not support a claim of disability.
2. In any event the claim was not timely filed under the Plan, for it arose in part from a February 8, 1991 car crash but the claim was not filed until October 1992.
3. Chandler's return to work after the car crash in April 1991 and his then performing his work for four months in an adequate manner "substantiated your ability to perform the duties of your job."

 Ryder's letter went on to say (id.):

Enclosed is a copy of the page from the Summary Plan Description for the Salary Continuation Plan explaining your rights to appeal this decision. If you choose to file such a request, you should send it to the UL Committee.

 Neither Chandler nor his attorney ever filed such an appeal (D. 12(m) P 65).

 Chandler's Termination

 On February 5 and March 26, 1993 Ryder wrote letters telling Chandler that he had until April 1, 1993 to return to his job and that his failure to do so would mean he had "voluntarily resigned your employment" (D. 12(m) PP 66-67, D. Ex. 40 at DD0453-DD0454, D. Ex. 44). *fn9" Chandler did not return to work on April 1, and his resignation was processed by UL effective that day (D. 12(m) P 74). On April 2 Ryder wrote Chandler that his "resignation has been processed" (D. 12(m) P 75; D. Ex. 45A).

 Chandler's Social Security Claim

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