United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge
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.
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:
or disabled means that in a particular month, you
satisfy one or more of the three Tests, as described below.
• 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.
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].
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 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.
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.
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 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
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
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 ...