Thornton v. Western & Southern Fin. Grp. Beneflex Plan
| Citation | 797 F.Supp.2d 796 |
| Decision Date | 23 June 2011 |
| Docket Number | Civil Action No. 3:08CV–00648–JHM. |
| Court | U.S. District Court — Western District of Kentucky |
| Parties | Scott THORNTON, Plaintiff v. WESTERN & SOUTHERN FINANCIAL GROUP BENEFLEX PLAN, et al., Defendants. |
OPINION TEXT STARTS HERE
Kathleen M.W. Schoen, Stuart E. Alexander, III, Tilford, Dobbins, Alexander, PLLC, Louisville, KY, for Plaintiff.
Kristie Alfred Daugherty, Mitzi Denise Wyrick, Wyatt, Tarrant & Combs LLP, Louisville, KY, Leila O'Carra, William Craig Robertson, III, Wyatt, Tarrant & Combs LLP, Lexington, KY, for Defendants.
This matter is before the Court on a motion by Defendants for summary judgment on all the claims [DN 36]; on a motion by Plaintiff, Scott Thornton, for summary judgment regarding LTIR Plan Benefits [DN 37]; and on a motion by Defendants to strike the Plaintiff's “Reply Memorandum” addressing his ERISA claim [DN 49]. Fully briefed, this matter is ripe for decision.
Plaintiff, Scott Thornton (“Thornton”), was hired as a field representative selling life insurance for Defendant, Western and Southern Life Insurance Company (“Western & Southern”), on July 11, 2005. While employed at Western & Southern, Thornton participated in a long-term disability insurance plan, The Western and Southern Life Insurance Company Flexible Benefits Plan. The long-term disability insurance plan is a self-insured plan, the administration of which is vested in the Benefits Committee of Western & Southern. Benefits are payable under the Plan if the employee qualifies as “long term disabled” as defined under the Plan and meets the length of service requirement. Section 2.34 of the Plan defines “Long Term Disability or Long Term Disabled” in relevant part as “[w]ith respect to a Covered Employee who is a Field Representative or District Office Clerical Employee, Long Term Disability or Long Term Disabled shall mean the complete and continuous incapacity of such Covered Employee, to engage in any and every occupation, business or employment, including self employment, for wages, compensation or profit.” ( Id. at § 2.34(a).) The Plan further provides that “[a] Field Representative ... shall not be eligible for Long Term Disability Benefits until the January 1 of the Plan Year following the completion of his second Year of Employment.” ( Id. at § 7.2(b).) The Plan also contains a pre-existing condition limitation that provides in part as follows: “No benefits shall be paid for any period of Long Term Disability ... which results from a Pre-existing Condition.” ( Id. at § 7.6.)
Thornton also participated in the Long Term Retention Incentive Plan (“LTIR”) which was designed to provide an incentive for field representatives to maximize performance and to remain within Western & Southern. On May 1, 2007, Thornton was awarded four units under the LTIR Plan valued at $24,492.00. The LTIR Plan benefits were scheduled to vest in seven years on May 1, 2014. However, the LTIR Plan provided that “[i]n the event that a Participant dies or becomes long term disabled as defined in the Company's Flexible Benefits Plan while employed by the Company or an Affiliate, all of the Performance Units in such Participant's Account shall become 100% vested.” (LTIR Plan at § 3.3(d)).
In 1970, Plaintiff suffered a broken neck when a grain elevator fell on him. At that time, Thornton underwent neck surgery and was then asymptomatic for neck pain until 2002. In 2002, Thornton was treated for the neck pain by Dr. John R. Dimar, an orthopedic surgeon. In December of 2002, Thornton underwent a vertebrectomy at the C6. A subsequent surgery was conducted to reinforce the fourth cervical vertebrae to the first thoracic vertebrae. At that time, ten screws and two rods were placed in his neck. Thornton testified that the second surgery relieved the pain.
Plaintiff was hired by Western & Southern in July of 2005. Plaintiff began experiencing neck pain in late 2006, and in February of 2007, it was discovered that one of the screws placed in his neck had broken. On June 18, 2007, Dr. Dimar, along with Dr. John Harpring and Dr. Christopher Shields, operated on Thornton at which time the medical team attempted to repair, or fuse, the nonunion at the C7–T1 level. The screws were removed and replaced with larger screws. Plaintiff returned to work on July 9, 2007, but continued to experience severe pain following the surgery. Plaintiff continued to work until August 24, 2007. At that time, Dr. Dimar informed Thornton that he would need to undergo additional surgery to place an anterior plate in his neck. Thornton went on Family Medical Leave in August of 2007. Thornton applied for and received short-term disability benefits in September of 2007. Thornton underwent surgery in October of 2007. Thornton testified that the surgery failed and he has been in constant neck pain since that time. Thornton exhausted his FMLA leave on October 30, 2007. On January 28, 2008, Western & Southern terminated Thornton due to his inability to return to work.
On November 26, 2007, Thornton applied for long-term disability under the Plan. (WS 619.) By letter dated February 1, 2008, Benefits Director Dean Vonderheide (“Vonderheide”) denied Thornton's long-term disability claim finding that Thornton was “not eligible for these benefits since [he] did not have a disabling condition that began on or after January 1, 2008 that lasted 26 weeks.” Specifically, Vonderheide concluded that Thornton's condition began before January 1, 2008. (WS 614; Vonderheide Letter 2/01/08.)
On January 29, 2008, Plaintiff requested that Western & Southern pay his benefits under the LTIR Plan. On February 1, 2008, Western & Southern notified Thornton that he would be required to submit to an examination by a physician of Western & Southern's choosing in order to determine whether Plaintiff was disabled as of January 28, 2008. (WS 614.) Western & Southern obtained an Independent Medical Examination (“IME”) of Thornton from Dr. Daniel Primm, an orthopedic surgeon. After conducting an exam of Thornton, Dr. Primm concluded that Thornton was not disabled for any and all work for which he may be qualified. In his report dated April 17, 2008, Dr. Primm opined that:
I think he could perform light work as long as it involved no lifting with the upper extremities over 5 pounds and no lifting or reaching above shoulder level or directly overhead. I also would recommend that he not have to perform work that would require repetitive or regular turning of the head and neck. Overall I still feel that his prognosis remains fairly good in terms of his being able to return to his previous work as a life insurance salesman. I say that particularly if that work could conform to the above recommended work restrictions. Overall my impression at this time, even though I do not feel he is at MMI, is that he is not completely disabled for any and all work for which he may be qualified.
(Primm IME, April 17, 2008; WS 628.) Relying on the IME of Dr. Primm, Western & Southern denied Thornton's claim for vesting of the LTIR units stating that “Mr. Thornton was not unable to perform the duties of any and every occupation as of January 28, 2008,” and as a result, “[h]e has forfeited all units in the LTIR Plan.” (WS 609; Vonderheide Letter, 5/21/08.)
By letter dated August 6, 2008, Thornton appealed the denial of long-term disability benefits and the denial of LTIR benefits. (WS 606.) The Benefits Appeals Committee denied Thornton's appeal finding in relevant part:
The Benefits Appeals Committee has reviewed the facts surrounding Mr. Thornton's case, including medical records associated with his condition and the results of an independent medical examination performed by Dr. Daniel D. Primm, Jr. Section 2.34(a) of the Western & Southern Flexible Benefits Plan defines long-term disability as complete and continuous incapacity of a covered employee to engage in any and every occupation, business or employment, including self-employment, for wages, compensation or profit. Section 7.6(a) prohibits payment of long-term disability benefits which result from a pre-existing condition. A pre-existing condition is defined in Section 2.42 as a medical or other health condition for which an individual had treatments, diagnosed symptoms or diagnostic tests performed for the condition within five years before Long Term Disability coverage begins. Section 7.6 states that a Field Representative shall not be eligible for Long Term Disability Benefits until January 1 of the Plan Year following the completion of his second year of employment. From the information submitted, Mr. Thornton's condition was in existence prior to his eligibility for Long Term Disability benefits. In addition, it is the Committee's decision that Mr. Thornton is not completely and continuously unable to perform any and all occupations. Therefore, we are unable to honor your request for long-term disability benefits.
LTIR Plan units vest if an associate is determined to be long term disabled according to the Western & Southern Flexible Benefits Plan. Since it is the opinion of Dr. Primm, who performed the independent medical examination, that Mr. Thornton is able to perform light work with restrictions, he is not considered to be long-term disabled as defined by the Plan. Therefore, the LTIR Plan units have not vested, and are not payable to Mr. Thornton.
(WS 598; Hayes Letter, 09/08/08.)
On December 2, 2008, Thornton filed this lawsuit alleging that Western & Southern had wrongfully denied Thornton's long-term disability income benefits under ERISA. Thornton also asserts claims for a violation of the Kentucky Wage and Hour Act, KRS § 337.010, et seq. , a breach of fiduciary duty related to his LTIR benefits, and appropriation of Plaintiff's name and likeness.
The Court reviews Western & Southern's decision to deny Thornton long-term...
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