United States District Court, S.D. Ohio, Western Division
WINSTON J. BALLEW, Plaintiff,
ASBESTOS WORKERS LOCAL #8, RETIREMENT TRUST FUND, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT (DOC. 10)
Timothy S. Black United States District Judge.
case arises under the Employee Retirement Income Security Act
of 1974, 29 U.S.C. § 1001, et seq.
(“ERISA”). Plaintiff Winston J. Ballew brings
this action under 29 U.S.C. § 1132 against Defendants,
the Asbestos Workers Local #8 Retirement Trust Fund and that
fund's Board of Trustees, seeking to recover long-term
disability (LTD) benefits under the terms of his
employer-sponsored group benefits plan. The case is now
before the Court on Defendants' motion for summary
judgment (Doc. 10) and the parties' responsive memoranda
(Docs. 12, 13).
Plaintiff's employment history
began his employment with the Asbestos Workers Union #8
(“Local #8”) on or around August 1985. (Doc. 12,
at 2). His last day of work was January 7, 2012. (Doc. 10, at
8). At the time Plaintiff's employment with Local #8
ended, Plaintiff worked as a mechanic/insulator. (Doc. 12, at
The LTD plan
virtue of his employment with Local #8, Plaintiff was
enrolled in the Asbestos Workers Local 8 Retirement Trust
Fund (the Pension Fund), a multiemployer pension plan this
was established by Local #8 in cooperation with an employer
association of employers (“the Employer
Association”) signed to collective bargaining
agreements with Local #8. (A.R. at 96). The primary purpose
or the Pension Fund was to provide age-based pension benefits
to the employees of various members of the Employer
Association who were covered by collective bargaining
agreements with Local #8. The Pension Fund also provides
certain disability benefits to those employees. (A.R. at 98).
Pension Fund is governed by a board of trustees (“Plan
Trustees”). Two of the four Plan Trustees are appointed
by Local #8 and the other two are appointed by the Employer
Association. The Board of Trustees has established a plan of
benefits which sets forth the eligibility requirements for
age based and disability based pension benefits (“the
Plan”). (Id. at 111). The Plan established a
normal retirement benefit at age 65 as well as a variety of
early retirement benefits. The Plan also provides for
disability benefits for employees who meet certain
eligibility requirements. The Trustees are given complete
discretionary authority to determine eligibility requirements
for benefits under the Plan.
particular importance to the adjudication of this motion to
dismiss is Section 6.9 II (2) of the Plain, which states:
A participant will be eligible for a reduced trade disability
benefit from the plan only if all of the following conditions
apply: . . .
2. The individual must have been an active participant in the
plan within a 12 month period immediately prior to the onset
of disability. For purposes of eligibility for a reduced
trade disability benefit an individual is considered an
active participant in the plan if employer contributions to
the plan were made on the employee's behalf (or payments
under a reciprocal agreement where applicable) for hours
worked within a 12 month period immediately prior to the
onset of disability.
(Id. at 141). Due to this provision, the
parties' differing assertions regarding the onset date of
Plaintiff's disability are determinative of whether
Plaintiff can receive any LDT benefits under the Plan.
Plaintiff's pre-application medical history
administrative record submitted to the Court includes
voluminous medical records from the Veteran's
Administration (“VA”), where Plaintiff went to
see his doctors and receive diagnoses/treatment.
Plaintiff's medical records mainly cover the period from
2012, after he had ceased work, to the present. Although
Plaintiff was examined by many medical professionals at the
VA, his primary treating physicians appeared to be Dr. Claire
Cunningham and Dr. James Plunkett. The following is a
summation of the relevant examinations and treatments
Plaintiff received related to his alleged disability due to
request of Dr. Cunningham, Plaintiff received a functional
capacity evaluation administered by occupational therapist
Jason Hayes on August 2, 2012. (A.R. at 75). The evaluation
notes indicate that available imaging was “mostly
unremarkable for anything other than mild multilevel
degenerative changes” that were identified at vertebrae
C5-C6. (Id. at 78). Plaintiff “seem[ed] to do
well with many tasks during limited evaluation.”
(Id.). Specifically, Hayes noted that during
Plaintiff's lifting test, Plaintiff did not present an
elevated heart rate that would be considered a
“reliable indicator of subject effort.”
Id. The report concludes, “[Plaintiff] may not
be able to continue to perform the work in his trade, but at
the very least, should be able to tolerate sedentary tasks.
Perhaps he could pursue disability through his union since
this is his trade. Vocational rehabilitation may also be an
option.” (Id. at 78-79).
Cunningham then ordered an MRI on Plaintiff's lumbar
spinal canal, which was conducted August 24, 2012.
(Id. at 58). The MRI showed no significant bulging
of herniated discs at the L3/4 level, mild diffuse disc bulge
at the L4/5 level, and significant bulging or herniated discs
at the l5/S1 level with no central spinal canal or foraminal
stenosis. (Id. at 59). The impression from the MRI
interpreter was that Plaintiff had “minimal
degenerative disease” with “no definite evidence
for metastatic tumor.” (Id. at 60).
January 11, 2013, Plaintiff received facet joint injections
done at the L4-L5 and L5-S1 level. (Id. at 65).
Plaintiff stated the injections gave him partial relief for
one or two weeks, but that there was no functional
February 19, 2013, Plaintiff received a second functional
capacity evaluation from occupational therapist James Bishop.
(Id. at 65). Plaintiff endured several functional
tests, including a sitting test, a gait test, and a lifting
test. (Id. at 68). Mr. Bishop's report notes the
lack of significant increase in heart rate during certain
tests and concludes that it was “[d]ifficult to assess
full functional capabilities as believe [Plaintiff] not
giving full effort.” (Id. at 68). The report
states that “in summary, no significant change”
was noted since Plaintiff's functional capacity
evaluation on August 2, 2012.
returned to Dr. Plunkett on July 7, 2014 for a pain consult
and to request a letter reflecting Dr. Plunkett's medical
opinion regarding Plaintiff's disability. (Id.
at 61). Dr. Plunkett's report indicates that various
treatment options were discussed with Plaintiff during the
consult. The report also states that “Mr. Winston
Ballew has been disabled from prior employment as a
Insulator/Pipe coverer since January 7, 2012 due to lumbar
spondylosis and pain aggravated by motion, bending, lifting.
He is likely permanently disabled from this employment based
on his lumbar spinal condition.” (Id. at 64).
Plaintiff relies primarily upon this record as evidence in
support of his asserted disability onset date of January 7,
the July 7, 2014 consult, Plaintiff had multiple appointments
with Dr. Michael Clay, a chiropractor. Dr. Clay created a
treatment plan for Plaintiff that included a home exercise
program, modifications to Plaintiff's lifestyle, and
outpatient treatment. (Id. at 85).
Plaintiff's LTD application
initially filed for LTD benefits under the Plan on June 9,
2014. (Id. at 1). Attached to the initial
application was a letter from Dr. Cunningham stating that
Plaintiff suffered from hypertension, disability, and lower
back pain. (Id. at 3). This one page letter stated
that “[t]his back pain severely limits
[Plaintiff's] abilities” but made no assertions