The opinion of the court was delivered by: Judge Milton I. Shadur
Magistrate Judge Schenkier
PLAINTIFF'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW PURSUANT TO RULE 52 OF THE FEDERAL RULES OF CIVIL PROCEDURE Plaintiff, DALE C. GITTINGS, through his attorneys JOHN C. KREAMER and SUSAN J. BEST of BEST, VANDERLAAN & HARRINGTON, for his proposed findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, states as follows:
Background on Sun Life's Denials of Plaintiff's Benefit Claims
On July 25, 2006, Sun Life denied Plaintiff's claim stating that Plaintiff was working full time up until his termination and therefore was not eligible for Long Term Disability Benefits. SUN 156. Plaintiff appealed Sun Life's denial, explaining in his appeal letter that he was performing light duty and office work and that he was not performing the regular duties of his job in the weeks leading up to his termination. Therefore he met the definition of "Totally Disabled" before he was terminated. SUN 159-160.
On March 2, 2007, Sun Life upheld its denial again stating that Plaintiff was not eligible for coverage under the Long Term Disability policy because he was working full-time as of the date of his termination. SUN 210-213. The decision went on to state that because Plaintiff received his full paychecks through the date of his termination, he was able to perform all the material and substantial duties of his occupation. SUN 212.
On February 12, 2010, Plaintiff appealed Sun Life's second denial of his claims to this court pursuant to Rule 52. This Court ordered that the matter be remanded to the Plan for reconsideration on Plaintiff's eligibility for long term disability benefits on May 20, 2010. SUN 241.
On January 20, 2011, Sun Life denied Plaintiff's long term disability benefits for the third time. SUN 1969. The decision stated that Gittings was not Totally Disabled as defined in the policy at the time of his termination. Further, Sun Life classifies Plaintiff's maintenance supervisor as "light occupation." SUN 1988. Sun Life again fails to consider the fact that Plaintiff was unable to perform the physical duties of his position as Maintenance Supervisor and remained on "light duty" until he was terminated. SUN 3430.
On April 11, 2011, Plaintiff agreed to waive his right to an internal administrative appeal and Sun Life agreed to waive its failure to exhaust defense relating to Plaintiff's decision to forego the administrative appeal. With this Court's permission, the parties have again agreed to resolve Plaintiff's ERISA claims pursuant to Federal Rule 52.
Just as this Court found in its previous decision rendered on May 20, 2010, the applicable standard of review is de novo. SUN 247. This Court stated:
It is not disputed that Plan is an "employee welfare benefit plan" as defined by Section 1001 (1)(A) and that Gittings is entitled to judicial review of Plan's final decision. Under the seminal teaching of Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989), any such review is de novo unless Plan has reserved discretion to its administrator to determine when benefits are due or to interpret Plan provisions, in which event the court examines the record only to ensure that the decisions was not arbitrary and capricious (id. 109-11). SUN 246.
Here, the Plan has not reserved discretion to its administrator to determine when benefits are due or to interpret Plan provisions.
Further, this Court considered the decision of Herzberger v. Standard Ins. Co.,, 205 F. 3d 327 (7th Cir. 2000), and noted the binding effect of said decision. As quoted in this Court's opinion, the Herzberger's Court stated:
We hold that the mere fact a plan.requires proof or satisfactory proof of the applicant's claims.does not give the employee adequate notice that the plan administrator is to make a judgment largely insulated from judicial review by reasons of being discretionary.
This Court used the reasoning in Herzberger and Diaz v. Prudential Ins. Co. of Am., 424 F.3d 635, 639-40 (7th Cir. 2005), to determine that de novo review applied to Gittings case. Specifically, this court compared the language in Diaz to the language in Sun Life's policy. Diaz dealt with language requiring "proof of continuing disability, satisfactory to Prudential, indicating that [the claimant is] under the regular care of a doctor." Here, the only language contained in Plan approaching this subject is the following: "Proof [of LTD] must be satisfactory to Sun Life." SUN 32. That unelaborated use of "satisfactory" is present here as well. This Court, in its May 20, 2010, opinion followed Diaz in finding that language insufficient to trigger deferential review, for it gives no clue as to what would suffice as "satisfactory" proof or as to whether Plan "has the power to re-define the entire concept of disability...on a case-by- case basis" (Diaz I, 424 F.3d at 639). Hence de novo review is appropriate.
PROPOSED FINDINGS OF FACT
I. Significant Plan Provisions
For and in consideration of premiums paid, Sun Life issued a policy of disability income insurance providing for payment of monthly benefits in the event a Tredegar employee becomes totally or partially disabled. SUN 16. The Plan defines "eligible classes" for benefits under the Plan as follows: "All full-time Employees; Working a minimum of 30 hours per week." SUN 4.
The Plan uses the following definition to determine "totally disabled:"
Total Disability or Totally Disabled means during the Elimination Period and the next 24 months, the Employee, because of Injury or Sickness, is unable to perform all of the material and substantial duties of his own occupation. After benefits have been paid for 24 months, the Employee will continue to be Totally Disabled if he is unable to perform all of the material and substantial duties of any occupation for which he is or becomes reasonably qualified for by education, training or experience. (Emphasis added) .
To qualify for benefits, the Employee must satisfy the Elimination Period with the required number of days of Total Disability, Partial Disability or a combination of Total or Partial days of Disability. SUN 13.
The Plan defines the "Elimination Period" as follows:
Elimination Period means a period of continuous days of Total or Partial disability for which no LTD Benefit is payable. The Elimination Period is shown in Section I, Schedule of Benefits and begins on the first day of Total or Partial Disability.
If the Employee returns to work for 15 working days or less during the Elimination Period and cannot continue working, the Total or Partial Disability will be treated as continuous. Only those days that the Employee is Totally or Partially Disabled will count toward satisfying the Elimination Period. SUN 10.
The Plan defines "Actively at Work" as follows:
Actively at Work means that an Employee performs all the regular duties of his job for a full work day scheduled by the Employer at the Employer's normal place of business or a site where the Employer's business requires the Employee to travel.
An Employee is considered Actively at Work on any day that is not his regular scheduled work day (i.e., vacation, layoff, or an approved leave of absence), if the Employee:
* is not hospital confined; or
* is not disabled due to an injury or sickness; and
* was Actively at Work on his immediately preceding scheduled ...