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Ballew v. Asbestos Workers Local #8, Retirement Trust Fund

United States District Court, S.D. Ohio, Western Division

June 5, 2017



          Timothy S. Black United States District Judge.

         This 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).

         I. BACKGROUND

         A. Plaintiff's employment history

         Plaintiff 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 2).

         B. The LTD plan

         By 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).

         The 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.

         Of 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.

         C. Plaintiff's pre-application medical history

         The 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 back pain.

         At the 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).

         Dr. 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).

         On 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 improvement. (Id.).

         On 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.

         Plaintiff 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, 2012.

         Following 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).

         D. Plaintiff's LTD application

         Plaintiff 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 ...

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