451 F.3d 1114 (10th Cir. 2006), 05-1146, Rekstad v. U.S. Bancorp

Docket Nº:05-1146.
Citation:451 F.3d 1114
Party Name:Denise REKSTAD, Plaintiff-Appellee, v. U.S. BANCORP, formerly doing business as First Bank System, Inc., a Delaware corporation, and U.S. Bank Long Term Disability Plan, formerly known as First Bank System Long Term Disability Plan (Plan # 509), Defendants-Appellants, and FBS Mortgage Corporation, a Nevada corporation doing business as Colorado Nat
Case Date:June 21, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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451 F.3d 1114 (10th Cir. 2006)

Denise REKSTAD, Plaintiff-Appellee,

v.

U.S. BANCORP, formerly doing business as First Bank System, Inc., a Delaware corporation, and U.S. Bank Long Term Disability Plan, formerly known as First Bank System Long Term Disability Plan (Plan # 509), Defendants-Appellants,

and

FBS Mortgage Corporation, a Nevada corporation doing business as Colorado National Mortgage Corporation; Knutson Mortgage Corporation, a Delaware Corporation, Defendants.

No. 05-1146.

United States Court of Appeals, Tenth Circuit.

June 21, 2006

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO, D.C. No. 97-N-1315.

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[Copyrighted Material Omitted]

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Carmen S. Danielson (and Peter C. Dietze, on the brief), Dietze and Davis, P.C, Boulder, Colorado, for Plaintiff - Appellee.

Steven J. Merker, (Van Aaron Hughes and Jason L. Johnson, with him on the briefs), Dorsey & Whitney, L.L.P., Denver, Colorado, for Defendants - Appellants U.S. Bancorp and U.S. Bank Long Term Disability Plan.

Before KELLY, SEYMOUR, and HARTZ, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellants U.S. Bancorp and U.S. Bank Long Term Disability Plan, (the "Plan"), successors in interest to First Bank Systems, Inc. and First Bank Systems Long-Term Disability Plan, respectively, appeal from the district court's grant of summary judgment in favor of Plaintiff-Appellee Denise Rekstad on her claim for disability benefits under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461. Our jurisdiction arises under 28 U.S.C. § 1291, and we reverse and remand.

Background

Ms. Rekstad worked for U.S. Bancorp1 as a loan originator and took part in the Plan, which it administered and insured. After an ankle injury in November 1993, she could not work for a period of time and therefore received short-term and eventually long-term disability benefits pursuant to the Plan. In April 1995, Ms. Rekstad's physician, Dale Kaiser, M.D., determined that Ms. Rekstad's ankle had healed sufficiently so that she could return to work. He in turn informed ITT Hartford ("ITT")—U.S. Bancorp's agent with respect to the administration, management and payment of the benefits described in the Plan—that she was medically cleared.

In June 1995, U.S. Bancorp offered Ms. Rekstad her previous position of employment. In response, she informed U.S. Bancorp that, on June 9, 1995, she was involved in an automobile accident. She explained that injuries she suffered therefrom rendered her totally disabled and that she needed to continue her long-term disability benefits under the Plan. Ms. Rekstad continued to receive long-term disability benefits until February 1996 when ITT sent her a letter explaining that she no longer met the Plan's definition of "total disability." Aplt. App. at 1331. Ms. Rekstad administratively appealed that decision and was again denied further benefits.

In April 1996, U.S. Bancorp sold its Colorado mortgage offices to Knutson Mortgage ("Knutson"). In May 1996, after Ms. Rekstad exhausted her administrative

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appeals, U.S. Bancorp terminated her employment because she did not return to work. U.S. Bancorp did advise her, however, that Knutson had agreed to offer continued employment to all U.S. Bancorp loan originators and that she should therefore immediately contact Knutson. Ms. Rekstad contacted Knutson and represented that she desired to commence her employment as soon as possible as a loan originator, presenting herself as ready and willing to work. Knutson refused to hire her in any capacity.

Ms. Rekstad's post-accident medical condition has been extensively evaluated and treated. She has undergone several neuropsychological evaluations, and she continues to see a physician regarding her physical condition—namely in regards to chronic pain she allegedly continues to suffer as a result of the accident.

In June 1996, Dr. Thomas Bennett, Ph.D., a psychologist under whose care Ms. Rekstad was receiving neuropsychological treatment, released Ms. Rekstad for part-time work. This was the first time she had ever been released to do any type of work since her automobile accident. In a report documenting the release, Dr. Bennett explained that Ms. Rekstad would have residual deficits with fatigue, problems with memory and attention/concentration, and confusion with financial aspects.

Ms. Rekstad subsequently sought and obtained employment three different times. Beginning in August 1996, she worked as a full-time straight-commissioned loan originator with the Norwest Corporation ("Norwest"). Ms. Rekstad was terminated by Norwest in February 1997, but soon thereafter, she began working for Cherry Creek Mortgage ("Cherry Creek"). She was terminated from that position in May 1997 but was again quickly employed by Chase Manhattan Mortgage ("Chase"). While working at Chase from May 1997 to July 1998, Ms. Rekstad earned $58,395.79. During this period, she also enrolled in Regis University's masters of non-profit management program.

In July 1998, Ms. Rekstad took a leave of absence from Chase. Her supervisor at Chase informed her that her performance was unsatisfactory but that Chase proposed placing her on disability instead of terminating her. Ms. Rekstad was approved for and received short-term and then long-term disability benefits through Chase's long-term disability carrier...

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