Charlene Edwards Honeywell, United States District Judge

Jeffrey E. Dahl, Pro Hac Vice, Law Office of Jeffrey Dahl, San Antonio, TX, Lansing C. Scriven, Lanse Scriven Law, Tampa, FL, for Plaintiff.

Brian Douglas Equi, Goldberg Segalla LLP, Orlando, FL, Katherine Burgess Kohn, Pro Hac Vice, Michael L. Junk, Pro Hac Vice, Groom Law Group, Chartered, Washington, DC, for Defendants.

ORDER

Charlene Edwards Honeywell, United States District Judge

The matter comes before the Court upon the parties’ cross motions for summary judgment. In this action, retired professional football player, Tyrone Keys, seeks reinstatement of his NFL-related benefits under the Bert Bell/Pete Rozelle NFL Player Retirement Plan and the NFL Player Disability & Neurocognitive Benefit Plan ("the Plans"), and declaratory relief to prevent the administrators of the Plans from clawing back benefits that were paid to him. (Doc. 35). The Plans have filed counterclaims to recover alleged overpayments of certain benefits to Keys that Keys wrongfully obtained through misrepresentations and omissions to the Plans. (Doc. 39).

Keys has filed a motion for summary judgment, arguing that he did not present any false information to the Board; did not receive an incorrect classification of benefits; should receive reinstatement of those benefits; and is not liable for any overpayment. (Doc. 57). In response, the Plans contend that the decision to terminate Keys’ benefits was reasonable considering Keys’ history of false, incomplete, and contradictory statements, and incorporated the arguments in their motion for summary judgment. (Doc. 60). In their motion for summary judgment, the Plans argue that the decision to reduce and terminate Keys’ disability benefits was reasonable because Keys repeatedly failed to provide complete and accurate information to the Plans—including hiding a 2002 car accident—in order to shore up a higher disability award than he was truly entitled to. (Doc. 58). Keys responds in opposition, asserting that there was nothing in the administrative record supporting the claim that he was rendered disabled by the car accident, and not NFL football. (Doc. 61). Keys also lists various reasons why the decision to reduce and terminate his benefits was not reasonable, including that he provided medical records regarding the 2002 accident to the Plans’ experts prior to their independent medical examination, and those experts had significant experience examining former NFL players and opined that his disability resulted from professional football. See id. Having considered the motions, responses, and replies, and having heard oral argument, the Court will deny Defendants’ motion and grant in part Keys’ motion.

I. STATEMENT OF FACTS

Initial Request for Benefits

Keys played football in the NFL for several seasons, as a defensive lineman for the Chicago Bears, Tampa Bay Buccaneers, and the San Diego Chargers. AR at 1228, 1034. In 1989, injuries to his back, knees, and shoulders apparently forced him to retire from the sport. Id. at 1034. About two years later, in 1991, he submitted a claim for disability benefits to the administrators of the Plans. Id. at 457. In his application, he sought "Line of Duty Disability" benefits ("LOD") and "Total and Permanent Disability" benefits ("T&P"). Id. The nature and cause of the disability was listed as football and Keys also indicated that there was a workers’ compensation claim pending. Id.

In furtherance of his claim for benefits, Keys was examined by Dr. Hugh S. Unger, a neutral physician appointed by the Plans, on December 9, 1991. Id. at 448-449. In his report, Dr. Unger described the nature of the disability as "[r]restriction of back motion and patellofemoral compression, on the right." Id. at 448. He opined that Keys would never be able to return to professional football, but may engage in occupations which preclude bending, lifting, climbing and like physical activities. Id. He also indicated that Keys suffered a 50-59% loss of the use of his back, 30-49% loss of the use of his shoulder, and a 60-79% loss of use of his knees. Id. at 449. Additionally, Dr. Unger opined that Keys had "multiple extremity involvements, with arthritis of the right shoulder, chondromalacia of both knees, and tear of the medial meniscus" and he "anticipated that further degeneration in the right shoulder may develop in time and [that Keys] may develop early arthritic changes in the knees." Id. at 449.

Approval for LOD benefits

By correspondence dated January 23, 1992, Keys was notified that he was approved for LOD benefits. Id. at 506. The first payment, retroactive to January 1, 1992, was provided to Keys with correspondence dated March 3, 1992. Id. at 512. In the letter, the Plans indicated that LOD benefits were payable for the duration of the disability, but not to exceed five years. Id. Keys was examined yearly by Dr. Unger for the next four years—on March 4, 1993, March 7, 1994, March 24, 1995, and March 11, 1996—in order to retain his benefits. Id. at 522, 526-531, 534, 536-543, 550, 552-557, 564-565, 567-571. Each time, Dr. Unger opined that Keys was able to work, subject to his limitations. See id. Around the time of his examination by Dr. Unger in 1996, Keys requested reclassification of his disability from LOD to T&P. Id. at 589. That request was denied, and Keys appealed. Id. at 573-574, 618. The appeal was rejected. Id. at 622. Keys was again examined by Dr. Unger in October 1997 and May 1998, and his opinion regarding Keys’ ability remained the same as in prior years—Keys’ could work with limitations. Id. at 631-632, 658.

May 2002 car accident

A few years later, in May 2002, Keys was involved in a motor vehicle accident. Id. at 3726. Following the accident, he presented to various medical practitioners with injuries arising from the accident. One such provider was Dr. Chet Janecki, to whom he complained of neck pain, low back pain, and left knee pain, arising from a rear-end collision around May 7, 2002. Id. at 3836. He was seen several times after. Id. at 1023, 1088. He was also seen by his chiropractor Dr. Richard Shaker—whom he had been treating with even as early as January 2000—as well Dr. Howard Hochman. Id. at 3843-3848, 3851-3857.

2003 Application for T&P benefits and benefits award

On or about September 16, 2003, the Plans received an application for Total and Permanent disability benefits from Keys. Id. at 755-760. In that application, Keys indicated that he had previously received a workers’ compensation award in the amount of $39,000. Id. at 760. He also provided a copy of his income tax return January – December 2000 tax year. Id. at 761-792. By correspondence dated November 25, 2003, the Plans acknowledged Keys application and notified him that a neutral physical examination was required. Id. at 793. Subsequently, he was scheduled for the independent medical evaluation with Orthopedist, Dr. Harlan Selesnick. Id. at 794. That examination was conducted on December 18, 2003. Id. at 846. Dr. Selesnick examined Keys’ knees, cervical spine, lumbar spine, and right shoulder. In his report, Dr. Selesnick opined that Keys was totally disabled to the extent that he was substantially unable to engage in any occupation or employment for remuneration or profit and this disability was permanent. Id. In the letter that accompanied his report, Dr. Selesnick provided more details:

"I believe that due to Mr. Keys’ chronic cervical and lumbar injuries, right shoulder limitations of motion, and pain and bilateral knee degenerative arthritis with limitation of motion and pain, that he is unable to work in any occupation or employment for remuneration or profit. I believe these limitations are permanent and he is likely to worsen with time to the point that he will eventually require bilateral knee replacements and possible right shoulder replacement surgery. I believe the cervical degenerative arthritis and lumbar degenerative arthritis will likely progress with time as well."

Id. at 848-849.

By correspondence dated March 3, 2004, the Plans informed Keys that he was approved for T&P Inactive disability benefits, and benefits would be payable for life or until cessation of the total and permanent disablement, subject to periodic examination as required by the Board. Id. at 976. An appeal was filed about a month later, challenging the classification as Inactive. Id. at 1102. In the request for administrative review, Keys argued that he should have been approved for the "Football Degenerative" benefits because "his disabilities all ar[o]se out of NFL football activities." Id. at 1102. Hence, Keys believed he was entitled to gross monthly benefits in an amount no less than $4,000, rather than the $1,207.50 awarded. Id. at 1107. Upon further review, Keys was reclassified to Football Degenerative and found "eligible for benefits under the NFL Player Supplemental Disability Plan in the amount of $5,167.00 per month." Id. at 1107, 1186. Keys was also awarded "a monthly benefit of $3,000" under the Retirement Plan. Id. at 1120-22, 1186.

Keys requests for reclassification of disability status

Later that year, Keys again sought reclassification, this time to Active Football T&P disability status. Id. at 1180, 1187-1202. He was examined by Dr. Selesnick who stated that his "orthopaedic opinion [was] essentially unchanged from December 18, 2003." Id. at 1185. In their March 16, 2005 correspondence denying Keys’ request, the Plans indicated that he had not shown any change of circumstances warranting reclassification. Id. at 1246. The Plans further explained that Keys had been examined by Plan neutral physicians in the years following his career, and those physicians consistently opined that Keys was not totally and permanently disabled through the 1990s. Id. at 1247.

Around May 30, 2006, Keys was examined by Dr. David Apple, a neutral Plan physician. Id. at 1260-65. In his report, Dr. Apple stated that Keys had sustained multiple musculoskeletal injuries during his NFL career which would worsen with advancing age and which continued to render him unemployable. Id. at 1265. Keys again sought administrative review of his disability classification in July 2007. Id. at 1287-1319. The Plans denied the request finding no change of circumstance. Id. at 1371-72. An appeal followed in February 2008 and the decision was affirmed. Id. at 1384-1385, 1419-23. 2009 Termination of benefits

In response to the Plans’ request, Keys—through his accountant—provided a copy of his completed 2007 tax returns by correspondence dated January 26, 2009. Id. at 1462-1493. Upon consideration of Keys’ tax returns, the Board was deadlocked as to whether he was still totally and permanently disabled, and terminated his T&P benefits pursuant to Plan sections 5.3 and 8.6. Id. at 1581-1582. He was notified of the decision by letter dated November 5, 2009. Id. An appeal was filed, accompanied by correspondence from Daniel Bubley—the President of All Sports Community Service Inc., the non-profit corporation Keys formed—explaining Keys’ 2007 tax returns. Id. at 1628. In that correspondence, Mr. Bubley explained that the compensation reported on Keys’ 2007 tax returns was an accumulation of past deferred payroll amounts as there were occasions in which All Sports lacked the necessary funds and Keys opted to defer a portion of his salary. Id. at 1616-1617. He also advised that Keys’ work activity had been substantially restricted due to his physical disability. Id. at 1617.

By correspondence dated April 8, 2010, the Board inquired into various wage payments made to Keys. Id. at 1665. Mr. Bubley—in his role as board member of All Sports and attorney—provided the response, again explaining that Keys had consistently deferred portions of his salary over the years when All Sports lacked the necessary funding to make payment. Id. at 1666. Mr. Bubley also explained that the two companies cited in the Board's correspondence were payroll companies that assisted All Sports with payroll and related insurance benefits, and that Keys had no affiliation with either company. Id. Additionally, the Board was presented with correspondence addressed to Keys from Keys’ accountant, indicating that expenses on Keys’ tax returns for vehicle expenses, parking, and business expenses were specifically used for All Sports. Id. at 1668. The Board considered Keys’ appeal at its August 18, 2010, meeting and reversed its eligibility determination. Id. at 1716. Keys was found eligible for T&P benefits, including for retroactive payments from January 2010 to September 2010. Id. at 1716, 1721.

Continued Evaluation of Eligibility and Appeal

As the Board continually evaluated Keys’ eligibility for benefits, it determined in October 2010 that Keys’ 2008 tax refunds supported continued payment of benefits. Id. at 1763. However, it then denied Keys’ eligibility by correspondence dated May 3, 2011, following a deadlock of its committee surrounding whether the 2009 tax returns supported continued eligibility. Id. at 1793-1794. Subsequently, around May 23, 2011, the Social Security Administration issued a fully favorable decision on Keys’ 2008 application for benefits, which was reopened based on the submission of new and material evidence. Id. at 1795-1804. In an amended decision, the administrative law judge found that Keys has been under a disability as defined in the Social Security Act since April 1, 2007, through the date of the Order. Id. at 1798. From his review of treatment records, the judge noted Keys’ history of orthopaedic injuries resulting from his previous career as a professional football player. Id. at 1800-1801. In furtherance of an appeal of the Board's denial of continued eligibility, the Plans were notified of the Social Security Administration's decision. Id. at 1805-1811. The Board denied the appeal on the basis that income exceeding $30,000—as reflected in his 2009 income tax returns—was incompatible with a finding of total and permanent disability, and that Keys’ attorney had only submitted a social security order relating to attorneys’ fees, and not one showing he had qualified for social security disability benefits. Id. at 1877-1878.

Keys sought administrative review of the decision by correspondence dated January 22, 2012. Id. at 1896. The following month, the Board advised him that a previously submitted application was missing his signature and date. Id. at 1884-1886. The reviewing committee subsequently denied that application following a deadlock. Id. at 1943-1944. In its denial letter, dated March 5, 2012, the Board noted the committee member who voted to deny the application had determined that although Keys had been approved for social security disability benefits, the documents and articles submitted with his application showed he continued to work. Id. at 1944. Again, Keys appealed this determination, pointing out that because he was found entitled to disability benefits by the Social Security Administration and was still receiving such benefits, he should be deemed disabled pursuant to Plan section 5.2(b). Id. at 1957-1960. Ultimately, the Board approved his request and found that he was eligible for Inactive B T&P benefits, with retroactive effect starting December 2011. Id. at 2184-2187. An appeal challenging the classification of Keys’ disability soon followed. Id. at 2196-2197. Reclassification was denied by the Board at its May 2013 meeting. Id. at 2317-2319. The Board found that because the February 2012 application was not within fifteen years of Keys’ last credited season as a professional football player, he did not qualify for Inactive A T&P benefits. Id. at 2318. However, the Board changed its decision later that year and temporarily reinstated Inactive A benefits—by correspondence dated December 16, 2003, subject to Keys assisting the Plan in obtaining his tax returns and social security disability file, and providing a complete list of for profit employment and or activities engaged in since January 2004. Id. at 2328-2331.

2015 Suspension and Reclassification to Inactive A status

Having found that the response from attorney J. Christopher Deem did not satisfy its reasonable request, the Board decided to suspend Keys’ benefits at its February 26, 2015 meeting. Id. at 2452-2255. Keys was informed of the decision by correspondence dated March 13, 2015, and again asked to assist the Board in obtaining his federal income tax returns for 2004 to 2012 and his social security disability file. Id. at 2454. He was also asked to provide a full and complete list of employment and or activities engaged in for profit since January 2004. Id. The letter advised Keys that the Board would make a final determination on his classification and whether he owed funds for prior overpayments. Id. at 2455. Attorney J. Christopher Deem again provided a response to the Board around May 22, 2015. Id. at 2467-2472.

The Board considered the issue and voted to award Keys Inactive A T&P benefits. Id. at 2512-226. He was notified of the decision by correspondence dated July 23, 2015, and informed that the classification was effective December 1, 2013, and that he would receive retroactive payments in the amount of $9,664.00 from the Retirement Plan and $126,000 from the Disability Plan. Id. at 2527-2529. The Board reasoned that it adjusted its classification because had Keys timely presented evidence of his Social Security award in 2011, his Inactive A T&P may not have been terminated, and Keys had subsequently complied with its request for additional information. Id. at 2528-2529. However, the Board also indicated that Keys’ case would be considered further upon receipt of the records from the IRS and the Social Security Administration. Id. at 2529. As was the case following previous decisions from the Board, Keys through his attorney, again raised issues with the decision. In the correspondence dated April 11, 2016, Mr. Deem submitted that the Inactive A T&P classification should have been effective from December 2011, when Keys was terminated, and that retroactive payments should have been made from this point. Id. at 2538-2539.

Groom discovers ‘troublesome’ issues

The Board considered Keys’ request for retroactive reclassification at its meeting on February 22, 2017. Id. at 3510. At the meeting, Douglass Ell of the Groom Law Group, Chartered—counsel to the Plans—indicated that his firm had uncovered a number of inconsistent or troublesome items relating to Keys’ application for benefits and disability classification. Id. at 3507. The Board laid out all these items in its February 28, 2017 correspondence to Keys as follows:

1. You did not report a workers’ compensation award made on November 26, 1991 by the State of California for football injuries for appropriate offset against your Line-of-Duty ("LOD") benefits arising out of the same injuries and which commenced effective January 1, 1992. Full documentation of this failure will be forwarded to you for explanation. The Retirement Board may seek recovery from you for these overpayments.

2. You have not, at any time, provided copies of your federal income tax returns for years 2003, 2004, 2005, and 2006.

3. You have failed to properly complete the IRS Form 4506 on two separate occasions causing the IRS to reject the request for those tax returns to be provided directly to the NFL

Player Benefits Office ("NFL PBO").

4. Your SSA-3288 Consent for SSA to Release Information has been rejected by the SSA because you used an address that does not match the address of record for you at the SSA.

5. You stated in your 2003 application for T & P disability benefits "all injuries are the direct result of football." Your signature on that application appears directly under the following statement in bold: "I recognize that I may be subject to the loss of benefits and to other penalties and sanctions under law If I have made any false or misleading statements." Contrary to your representations to the Plan, you had in fact suffered injuries from, and received medical treatment for, a car accident preceding that application. To support your application for T&P disability benefits, you submitted records of medical treatment for that car accident but intentionally omitted pages disclosing that the treatment was for injuries sustained in a car accident.

6. You submitted incomplete records to the NFL PBO in connection with your SSA disability determination. For example, page 3 of 6 of the SSA Office of Disability Adjudication and Review, Amended Decision Dated May 23, 2011, refers to Exhibit SD. However, you did not submit any such exhibit with the records sent to the NFL PBO.

7. After being denied Social Security disability in the Tampa, Florida area, you reapplied in Jackson, Mississippi. There is evidence in the claim file that your home is in Lutz, Florida. That fact, combined with other discrepancies identified in the records you provided, suggests that you may have obtained Social Security benefits via fraud.

8. In connection with your 2003 application for T&P benefits, you sent a written statement to the NFL PBO that you were "only able to average 2½ hours a week, because I have to constant alternate (sic) between sitting and standing to make calls to the students or colleges. I am unable to perform substantial gainful activity at this time." However, the Form SSA-3368 Disability Report - Adult that you filed with the SSA states that you worked six hours a day from 1993 through June 30, 2009, including walking for 6 hours, standing for 5.5 hours, and sitting for 6 hours.

Id. at 3510-3511. Based on these issues, the payment of benefits to Keys was suspended. Id. at 3512. He was also advised that this was pending the Board's satisfaction of his responses to specific questions which would be provided under separate cover. Id. Those questions addressing specific representations—to both the Board and the Social Security Administration, discrepancies, and omissions were provided with correspondence dated March 22, 2017. Id. at 3550-3560. The Board directly inquired about the May 2002 car accident and why Keys had only provided excerpts of the records relating to this accident. Id. at 3552-3553. Additionally, the Board again requested certain tax returns and proper authorizations to obtain Keys’ tax returns and social security disability file, noting that Keys had twice failed to properly complete the IRS forms and that the Social Security Administration did not recognize the address used on the form provided by Keys. Id. at 3553-3554. Keys was instructed to respond to Groom Law. Id. at 3550.

Dr. Gay Culverhouse responded on Keys’ behalf in a letter dated May 1, 2017. Id. at 3722-37802. As to the May 20, 2002 car accident, Culverhouse explained that it did not occur to Keys to tell his attorney about the accident when applying for T&P benefits because prior to the date of the accident and afterward, "all reports from all doctors reflected his injuries were due to football" and the insurance company denied his claim arising from the accident on the basis that "his pain and suffering were the direct result of football." Id. at 3726. He also explained that "Dr. Janecki wrote his report in August of 2003 to reflect Mr. Keys’ efforts to claim insurance money." Id. Next, Culverhouse indicated that Keys was unable to explain the discrepancies between the information provided in his T&P application and his social security disability application regarding his functional capacity to work, but that this was "basically irrelevant" because there was more than enough evidence that Keys was doing charitable work. Id. at 3726-3727. The response did not explain why Keys had used a Jackson, Mississippi address on his application for social security benefits, and merely indicated that Keys has two residences. Id. at 3727. As to the receipt of workers’ compensation, Culverhouse explained that Keys did not disclose the award in his LOD application due to a timing issue—benefits were apparently pending when he applied and received at the time he completed the LOD application process—and did not disclose the award in August 2008 and January 2010 social security applications due to confusion from miscommunication between Keys and the attorney who filed the forms. Id. At 3726.

Keys’ disability classification is changed to Inactive B

The Board met on May 11, 2017, and considered the response prepared by Dr. Culverhouse. Id. at 3859. Again, the Board found it had not been provided all the requested information and asked Culverhouse to supplement the response with federal income tax returns for 2003-2006, a signed IRS Form for tax returns from 2011 to 2015, and additional information regarding his 2002 accident. Id. at 3859. The supplemental response was provided by letter dated June 4, 2017. Id. at 3836. There, Culverhouse explained that the tax returns for 2003-2006 were no longer available either from the IRS or Keys’ accountant, and that neither Highway patrol nor State Farm had a copy of the 2002 accident report. Id. at 3836, 3840. However, a signed IRS form 4506 for tax returns from 2011-2015 and medical records reports from Chiropractor Dr. Richard Shaker, Dr. Howard Hochman, and Dr. Chet Janecki were provided. Id. at 3837-3839, 3843-3848, 3851-3857. Keys’ 2011 to 2015 tax returns were subsequently provided. Id. at 3865-3897, 3903-4006.

Upon review of the information provided, Groom Law determined that there was "new and conclusive evidence that [ ] Keys sustained injuries in the accident of May 7, 2002," which was "significant because the extensive medical care for pain that was the basis for Mr. Keys’ disability claim commenced on May 10, 2002, just three days after the accident." Id. at 4018-4019. Groom Law found that this contradicted Keys’ representation on his 2003 disability application that all his injuries were the result of professional football. Id. at 4019. Groom Law also pointed to the discrepancy between Dr. Janecki's August 2003 report and his April 2009 report. Id. The August 2003 report documented Dr. Janecki's observations regarding Keys’ cervical spine, bilateral shoulder, lumbar spine, and left knee and conclusion that "[t]he symptoms and diagnoses established in [the] report are the direct result of injuries that [Keys] sustained in a motor vehicle accident on 5/20/02." Id. at 3602-3605, 4019. However, in his April 2009 report Dr. Janecki opined that Keys’ orthopaedic conditions of his cervical spine, lumbar spine, and left knee "occurred as a result of his participation in professional football and are causally related to this participation." Id. at 3046, 4019. Per Groom Law's review of the files, Keys had only filed a portion of the August 2003 report with his 2003/2004 application for T&P benefits. Id. at 4019. The excerpt provided to the Plans did not include reference to the 2003 car accident. Id. However, the 2009 report was provided to the Plans on multiple occasions. Id. Groom Law also pointed to evidence that Keys no longer had the physical limitations that he had claimed. Id. The internal memorandum closed with an indication that if the Board were to restore suspended payments for Inactive A benefits and make retroactive payments for the period December 2011 to November 2013, Keys would be owed back payment in the amount of $159,933.72. Id. at 4020. However, if Keys was retroactively classified as Inactive B for the entire period of disability, he would owe the Retirement Plan $831,488.28. Id.

Retroactive Reclassification of Keys’ disability status to 2004

At its meeting on August 16, 2017, the Board decided to reclassify Keys’ disability to Inactive B T&P, effective January 1, 2004, on the basis that he had "affirmatively misrepresented that League Football activities were the sole cause of [his] totally and permanently disabling impairments." Id. at 4061-4064. In its August 30, 2017 letter notifying Keys of its decision, the Board informed Keys that to recover a small portion of the $831,488.28 overpayment, the Board was suspending all disability payments and was reserving the right to take further action as considered appropriate. Id. The Board also cited to the relevant Plan provisions along with its evidence of fraud, inconsistencies relating to medical reports, and other material inconsistencies in the claims file suggesting fraud. Id. at 4065-4083.

Subsequently, Groom Law was provided a partial copy of Keys’ social security files and conducted a review in October 2017. Id. at 4163. From its review of these files, Groom Law opined that Keys had misrepresented to the Social Security Administration that Dr. Apple was a treating physician, when in fact, Dr. Apple had performed a neutral exam. Id. at 4163. Groom Law believed this was significant because the Social Security Administration accorded great weight to a treating physician's statements and Dr. Apple's May 2006 report contained a finding of total and permanent disability. Id. at 4163. Groom Law also found there were discrepancies between statements made by Keys and his wife, Bessie. Id. at 4164. The Board was updated on the development at its November 7, 2017 meeting. Id. at 4182.

Keys requests review of the reclassification decision

Around January 22, 2018, Dr. Culverhouse sought review from the Board of Keys’ reclassification. Id. at 4265-4395, 4402. In her letter, she raised various arguments against the Board's decision that Keys had failed to disclose the 2002 car accident. Id. at 4265-4277. She first argued that Keys was "not asked to describe any accident, injury, or illness not related to NFL Football that he has experienced during his lifetime." Id. at 4268. Instead, she contended that he was "only asked to identify those non-football accidents, injuries, or illnesses that may have caused or contributed to the impairing condition that he describe[d] in his application." Id. She explained that Keys was entitled to rely upon Dr. Unger's findings and opinions, Dr. Shaker's opinion, and Dr. Janecki's September 2003 narrative when describing his impairing conditions to the NFL Board in his 2003 application." Id. at 4272. Moreover, Dr. Culverhouse argued that because the second page of Dr. Shaker's report—which referenced the accident—was provided with Keys’ 2003 claim for T&P Football Degenerative benefits, that provided notice to the Committee of the accident and the Committee could have followed up but chose to believe Dr. Shaker at his word, that the studies showed Keys’ injuries were related to his NFL career and not the 2002 accident. Id. at 4270-4271, 4276. Considering all the medical evidence, including the opinions of Dr. Selesnick and Dr. Apple, Dr. Culverhouse believed the Board's "assertion that the 2002 car accident was the proximate cause of the impairments underlying Keys 2003 application [was] unreasonable." Id. at 4274.

Dr. Culverhouse also challenged the Board's decision to claw back Inactive A benefits paid to Keys. Id. at 4274. In doing so, she first contended that the medical evidence did not support a finding that Keys had submitted false information that led to the award of Football Degenerative T &P benefits that otherwise would not have been awarded. Id. at 4275. She explained that there is no requirement that a player submit all of his medical records when he applies for disability benefits and Keys provided the records that verified the impairments that he described in his 2003 application. Id. She further pointed out that Dr. Janecki's August 2003 progress note was not a magical document that trumped, and rendered inconsequential, the opinions of the other doctors who had examined Keys or those in Dr. Janecki's September 2003 narrative. Id. Again she argued that the Plan could have easily requested all of Dr. Janecki's records, as Keys had provided the Plan with Dr. Janecki's address and phone number in the 2003 application where he was listed as a treating physician, and clawing back fourteen years of benefits would be unfair on this basis. Id. at 4276.

Final Board Action

The Board considered the appeal at its February 22, 2018, meeting and denied it "largely for the same reasons explained ... in the August 20, 2017 letter." Id. at 5293. In its letter to Keys, the Board explained the reason for its decision as follows:

In your September 2003 application, you stated that you were totally and permanently disabled due to impairments to your cervical and lumbar spine, shoulder, and knees. In the application, you were asked to "Describe all accidents, Injuries, or illnesses that did not result from NFL Football (for example, auto accidents) and that may have caused or contributed in any way to the above conditions" (emphasis added). You responded-in your own handwriting-that "All Injuries were the direct result of Pro Football unfortunately." You also signed a statement on that application confirming that all of the Information you provided (including supporting documentation) was, to the best of your knowledge, true, correct, and complete. And you acknowledged that any false or misleading statements or omissions could subject you to loss of benefits and to other penalties and sanctions under the law.

...

Contrary to the instructions given to you and your certification that the September 2003 application for T&P benefits was true, accurate, and complete, the application failed to disclose that you were involved in a car accident on May 7, 2002. That is indisputable. It is also indisputable that you failed to provide the Plan with a full copy of an August 1, 2003 report from your physician, Dr. Chet Janecki, which stated that all of your disabilities-i.e., the disabilities that formed the basis for your application for T&P benefits-were "the direct result of injuries that [you] sustained in [the May 7, 2002] motor vehicle accident ...." And it is indisputable that, when you submitted chiropractic records which you said demonstrated your disabilities and documented the therapy necessary to treat them, you never disclosed the true reason for that treatment: the May 7, 2002 car accident.

At its February 22, 2018 meeting, the Retirement Board once again reviewed the record surrounding your claim(s) for benefits and your recent appeal of the Retirement Board's August 2017 reclassification/termination decision. The Retirement Board concluded that you intentionally failed to disclose the May 7, 2002 car accident in your application; you intentionally provided incomplete records in support of your application; and you intentionally misrepresented the facts and circumstances surrounding many of the records that you did submit with the application, all in an effort to obtain Plan T&P benefits.

Your failure to disclose was, in fact intentional. The Retirement Board found that your attempts to paint your failure to disclose the May 7, 2002 car accident as an innocent oversight are belied by the record as a whole. That record—which has developed over many years and now spans thousands of pages of material—demonstrates that you, acting either alone or in concert with others, have consistently concealed or misrepresented the nature and extent of your

impairments, the cause of your impairments, and your employment status not just to the Retirement Board, but to your insurance carriers and the Social Security Administration as well.

Prior letters sent by or on behalf of the Retirement Board have detailed the numerous inconsistencies and contradictions identified throughout the extensive record in this matter.

...

Your failure to disclose was, in fact, material. The Retirement Board found that your failure to disclose the May 7, 2002 car accident deprived the Plan and its neutral physicians of material Information relevant to your application for benefits. Even if your orthopedic impairments existed prior to the car accident, as Dr. Culverhouse argues, to be entitled to Football Degenerative benefits you had to show that League football activities proximately caused your total and permanent disability. The Retirement Board noted that the record is devoid of medical evidence showing that you were totally and permanently disabled by your orthopedic impairments prior to the May 7, 2002 car accident. This alone reasonably suggests that you would not have been totally and permanently disabled but for the car accident, and as such you would not have been entitled to Football Degenerative benefits. In any event, by concealing the fact of the accident from the Plan, you precluded the Plan's neutral physicians from properly evaluating the cause of your alleged total and permanent disability. [FN: The Plan's neutral physician, Dr. Selesnick, later relied on Dr. Janecki's Incomplete August 1, 2003 report and the contradictory September 4, 2003 report to conclude that you were totally and permanently disabled due to League football activities.].

Because you knowingly concealed material information from the Plan in conjunction with your 2003 application, the Retirement Board determined that you are subject to the loss of the Football Degenerative benefits awarded to you under that application. Rather than strip you of T&P benefits entirely, however, the Retirement Board, in its discretion, determined that it was appropriate to retroactively reclassify your benefits to the Inactive/Inactive B category. That category was available to Players whose total and permanent disability arose from something other than League football activities or after the applicable age-45 or 12-year deadline. (Plan Section 5. l(d), Amended and Restated as of 4/1/2001.) Giving you the benefit of the doubt about your employment status and capabilities, and crediting the later findings of the Plan's neutral physicians about the extent of your disability (but not the Initial cause of your total and permanent disability), the Retirement Board determined that the Inactive/Inactive B would have been the appropriate category for the T&P benefits that you were awarded in 2003.

...

The Retirement Board considered and rejected Dr. Culverhouse's argument that the Plan's limitations provision, Plan Section 12.7, prevents it from "clawing back" overpayments made more than 42 months prior to its August 2017 decision. The limitations provision applies to legal actions initiated by Players against the Plan under section 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B). It does not force the Plan to overlook prior overpayments. The Retirement Board has a fiduciary duty to do what is reasonably necessary to recover overpayments and protect the assets of the Plan. Terminating your T&P benefits is a prudent step toward

recovering a portion of the Plan's overpayment to you.

Id. at 5294-5299. This was the Board's final decision on review and Keys was advised of his right to bring suit. Id. at 5299.

The Lawsuit

Keys then filed this action on August 22, 2018. (Doc. 1). In his amended complaint, he asserts three counts: (i) for a declaration that the Board's claw back of amounts paid to him was an abuse of discretion since he did not provide false information to either the Board or the DICC that led to an award of Plan benefits to which he was not entitled; (ii) that the Board's denial of his claim for Inactive A T&P benefits for the period from December 2011 to November 2013 and further termination of Inactive A benefits beginning August 2017 was an abuse of discretion because disabling impairments listed on his application were the result of his seven-year NFL career and he remained totally and permanently disabled as a result of those impairments; (iii) for equitable estoppel based upon silence under § 1132(a)(1)(B) in relation to the clawing back of Benefits because the DICC knew about the accident in 2004 and the Board trustees knew about the accident, at the latest, in April 2008 and he has been substantially prejudiced by their years of silence. (Doc. 35 at 10-16).

The Plans then filed counterclaims for recovery of overpayments resulting from Keys’ knowing, intentional, and fraudulent statements and omissions. (Doc. 39). The Plans alleged claims for (i) Equitable and Declaratory Relief Seeking the Recovery of LOD Overpayments Under Section 502(a)(3) of ERISA relating to Keys’ misrepresentation of the status of his workers’ compensation award in his LOD application and intentional failure to disclose his receipt of workers’ compensation benefits to prevent the Retirement Plan from applying the required offset to his LOD benefits; (ii) Equitable and Declaratory Relief Seeking the Recovery of T&P Overpayments Under Section 502(a)(3) of ERISA due to the wrongful classification of Keys for Football Degenerative/Inactive A T&P benefits due to his failure to disclose his 2002 car accident in his T&P application; and (iii) Unjust Enrichment Under ERISA and/or Federal Common Law to recover the full amount of the LOD and T&P benefits overpayments. See id. at 21-33.

The cross motions then followed, raising arguments regarding (i) the Board's determination that Keys engaged in fraudulent conduct and (ii) whether Keys’ total and permanent disability was caused by NFL football or the 2002 car accident. (Doc. 57, Doc. 60).

II. LEGAL STANDARD

"In an ERISA benefit denial case ... the district court sits more as an appellate tribunal than as a trial court." Crume v. Metro. Life Ins. Co. , 417 F. Supp. 2d 1258, 1272 (M.D. Fla. 2006). Evidence is not taken by the court. Id. Instead, it evaluates the administrative determination in light of the record compiled before the plan fiduciary. Id. The Supreme Court has long held that "a denial of benefits challenged under [ 29 U.S.C.] § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 115, 109 S. Ct. 948, 956–57, 103 L. Ed. 2d 80 (1989). Subsequently, the Court of Appeals for the Eleventh Circuit "interpreted Bruch to mandate de novo review unless the plan expressly provides the administrator discretionary authority to make eligibility determinations or to construe the plan's terms." Kirwan v. Marriott Corp. , 10 F.3d 784, 788 (11th Cir. 1994). The Eleventh Circuit stated:

This court has applied the arbitrary and capricious standard when the plan provides that the administrators " ‘determinations shall be final and conclusive’ " so long as they are " ‘reasonable determinations which are not arbitrary and capricious.’ " This court has also applied the arbitrary and capricious standard when the plan confers upon the administrator " ‘full and exclusive authority to determine all questions of coverage and eligibility’ " and " ‘full power to construe the provision’ " of the plan.²¹ On the other hand, this court has applied the de novo standard when the plan confers upon the administrator the authority to make initial eligibility determinations " ‘according to the terms of the Plan.’ "

Id. ; Levinson v. Reliance Standard Life Ins. Co. , 245 F.3d 1321, 1325 (11th Cir. 2001) ("Because the policy gives the administrator discretion to determine eligibility for benefits, we must determine whether the administrator's decision was arbitrary and capricious."); Lee v. BellSouth Telecomm., Inc. , 318 Fed. Appx. 829, 836 (11th Cir. 2009) (analyzing whether defendant's denial of benefits was arbitrary and capricious); Under an arbitrary and capricious standard of review, "the administrator's fact-based determinations will not be disturbed if reasonable based on the information known to the administrator at the time the decision was rendered." Crume v. Metro. Life Ins. Co. , 417 F. Supp. 2d 1258, 1271 (M.D. Fla. 2006) (discussing Kirwan, 10 F.3d at 788 and Paramore v. Delta Air Lines, Inc., 129 F.3d 1446, 1451 (11th Cir. 1997) ).

In Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350, 1363 (11th Cir. 2011), based on the Supreme Court's guidance in Firestone and Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008), the Eleventh Circuit established a multi-step framework to guide courts when reviewing benefits decisions. Under this six-step rubric, a district court must:

(1) Apply the de novo standard to determine whether the claim administrator's benefits-denial decision is "wrong" (i.e., the court disagrees with the administrator's decision); if it is not, then end the inquiry and affirm the decision.

(2) If the administrator's decision in fact is "de novo wrong," then determine whether he was vested with discretion in reviewing claims; if not, end judicial inquiry and reverse the decision.

(3) If the administrator's decision is "de novo wrong" and he was vested with discretion in reviewing claims, then determine whether "reasonable" grounds supported it (hence, review his decision under the more deferential arbitrary and capricious standard).

(4) If no reasonable grounds exist, then end the inquiry and reverse the administrator's decision; if reasonable grounds do exist, then determine if he operated under a conflict of interest.

(5) If there is no conflict, then end the inquiry and affirm the decision.

(6) If there is a conflict, the conflict should merely be a factor for the court to take into account when determining whether an administrator's decision was

arbitrary and capricious.

Id. (citing Capone v. Aetna Life Ins. Co. , 592 F.3d 1189, 1195 (11th Cir. 2010) ).

At step four of the test, a conflict of interest exists "where the ERISA plan administrator both makes eligibility decisions and pays awarded benefits out of its own funds." Id. (citing Glenn , 554 U.S. at 105, 128 S.Ct. 2343 ). Even if a conflict exists and a court reaches step six, "the burden remains on the plaintiff to show the decision was arbitrary; it is not the defendant's burden to prove its decision was not tainted by self-interest." Doyle v. Liberty Life Assur. Co. of Boston, 542 F.3d 1352, 1360 (11th Cir. 2008). The severity of the conflict and the nature of the case will determine the effect that a conflict of interest has in any given case and, accordingly, the Court will look to the conflict's "inherent or case-specific importance." Blankenship , 644 F.3d at 1355 (citing Glenn , 554 U.S. at 117, 128 S.Ct. 2343 ). After Glenn, the existence of a conflict of interest should merely be a "factor" for the district court to consider when determining whether an administrator's decision was arbitrary and capricious, but the basic analysis still centers on whether a reasonable basis existed for the administrator's decision. See id. (citing Conkright v. Frommert , 559 U.S. 506, 521, 130 S.Ct. 1640, 176 L.Ed.2d 469 (2010) (noting that the plan administrator's interpretation of the plan "will not be disturbed if reasonable")).

As both the Eleventh Circuit and the Supreme Court have noted, "the presence of a structural conflict of interest [is] an unremarkable fact in today's marketplace [and] constitutes no license, in itself, for a court to enforce its own preferred de novo ruling about a benefits decision." Blankenship , 644 F.3d at 1356 ; see also Glenn , 554 U.S. at 120, 128 S.Ct. 2343 (noting that a "conflict of interest ... is a common feature of ERISA plans.") (Roberts, C.J., concurring in part and concurring in the judgment). However, even where a conflict of interest exists, courts still owe deference to the plan administrator's "discretionary decision-making" as a whole. Doyle, 542 F.3d at 1363 ; see also Glenn, 554 U.S. at 120, 128 S.Ct. 2343 (noting the "deference owed to plan administrators when the plan vests discretion in them").

This Court has acknowledged in Crume that it is difficult to ascertain how the ‘normal’ summary judgment rules can sensibly apply where the ultimate issue to be determined is whether there is a reasonable basis for a claims administrator's benefits decision. 417 F. Supp. 2d at 1273. The summary judgment standard set forth in Federal Rule of Civil Procedure 56 is incongruent with the ERISA standard of review. Compare Fed. R. Civ. P. 56(c) with Williams v. BellSouth Telecomms., Inc., 373 F.3d 1132, 1138 (11th Cir. 2004), overruled on other grounds by Doyle v. Liberty Life Assurance Co. of Boston , 542 F.3d 1352 (11th Cir. 2008). As explained above, the Eleventh Circuit charges the district court with determining de novo whether the administrator's decision was wrong, unless discretionary authority was granted by the plan, Williams, 373 F.3d at 1138, rather, than whether there are questions of material fact that require trial and whether the parties are entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). There may indeed be unresolved factual issues evident in the administrative record, but unless the administrator's decision was wrong, or arbitrary and capricious, these issues will not preclude summary judgment as they normally would. See Crume, 417 F. Supp. 2d 1258, 1272–73.

III. DISCUSSION

Both Keys and the Plans have moved for summary judgment in relation to the Board's 2018 final decision that Keys committed fraud when he failed to disclose the 2002 car accident and that the accident, not NFL football, was the cause of his disability, as well as the Board's determination that Keys’ failure to timely disclose his workers’ compensation award resulted in an overpayment of LOD benefits. Keys and the Plans agree that the abuse of discretion standard applies to the Board's benefits determination. (Doc. 57 at 19, Doc. 58 at 14). Pursuant to Plan section 8.2, the Board has "full and absolute discretion, authority and power to interpret, control, implement, and manage the Plan," including the authority to construe the terms of the Plan, adopt procedures and rules for administering the Plan, decide benefit claims, and bring suit on behalf of the Plan. AR at 35-36. Because the Plan grants full and absolute discretion to the Board, the arbitrary and capricious or abuse of discretion standard of review applies. See Levinson , 245 F.3d at 1325 ; Lee , 318 Fed. Appx. at 836 ; Mottert v. Union Sec. Ins. Co. , No. 8:17-CV-998-T-36AEP, 2018 WL 6447307, at *12 (M.D. Fla. Nov. 15, 2018). Accordingly, the Board's decision will not be disturbed unless it is not reasonable based on the information known to the Board at the time the decision was made. See Crume , 417 F. Supp. 2d at 1271 (stating same). a. Submission of false information to the Plans regarding the 2003 application

In its 2018 decision, the Board stated that when Keys applied for T&P benefits in September 2003, he failed to disclose that he was involved in a car accident on May 7, 2002. Id. at 5294. In that application, Keys was asked to "[d]escribe all accidents, injuries, or illnesses that did not result from NFL Football (for example, auto accidents) and that may have caused or contributed in any way to the" impairments that caused him to be totally and permanently disabled. Id. Keys indicated that he was totally and permanently disabled due to impairments to his cervical and lumbar spine, shoulder, and knees and that these were the direct result of NFL football. Id. The Board also found that Keys failed to provide it with the portion of Dr. Janecki's August 1, 2003 report which determined that the conditions for which Keys was seen were "the direct result of injuries ... sustained in a motor vehicle accident on 5/20/02." Id. at 5295. These omissions, the Board believed, were intentional and done to obtain T&P benefits. Id. The Board also found discrepancies regarding the information provided to the Plans and the Social Security Administration about Keys’ employment status when it reviewed Keys’ social security file. Id. at 5296. For instance, Keys represented to the Plans in his 2003 application that he was "unable to sit for more than 10 minutes without having to stand," and "unable to stand for no more than 5 minutes," but then represented to the Social Security Administration that he worked 6 hours a day from 1993 through 2009, routinely walked for 6 hours, stood for 5.5 hours, and sat for 6 hours during that timeframe. Id. Additionally, the Board noted that Keys had previously failed to disclose at least one workers’ compensation award to the Plans—resulting in an overpayment of at least $39,000—and it appeared that Keys had not disclosed his workers’ compensation award(s) to the Social Security Administration. Id. at 5297.

In their motion for summary judgment, the Plans describe Keys’ conduct as "an alarming pattern of false statements and incomplete submissions" to the Plans. (Doc. 58 at 17-18). To the contrary, Keys contends that the Plans have sought to build evidence to support the theory that he has engaged in a campaign of deception. (Doc. 61 at 8). In fact, he maintains that he did not lie on his T&P application because the four conditions he listed there existed long before his 2002 accident and were caused by playing in the NFL. See id. at 8-9, Doc. 57 at 11-14. He acknowledges that he relied on Dr. Janecki's September 2003 report—rather than the August 2003 one—and has noted that he provided the name and contact information of all his medical providers in his application, including Dr. Janecki. Id. (Doc. 57 at 13-14). Further, he argues that there was no intentional misrepresentation in failing to disclose the car accident because his answer was based on an accurate reading of the question. (Doc. 61 at 8-9). Based on his reading of the question, there was no need to disclose the car accident if it did not cause or contribute to the impairments listed in the application, and based on his view of the medical records, NFL football caused his impairments such that he had no duty to disclose the accident. Id. He also argues that the fourth page of Dr. Janecki's August 2003 report and the second page of Dr. Shaker's report—that MRI films showed osteoarthritis in Keys’ lumbar and cervical spine and knees existed prior to the May 7, 2002 accident—were provided to the Board with his 2003 application and clearly referenced the 2002 accident and would have been sent to the Plan doctors prior to their examinations. Id. at 9-13.

While there is truth to Keys’ claims that medical records predating his 2002 accident attribute his impairments to NFL football, the Board's decision that Keys submitted false and incomplete information to the Plans is supported by the administrative record and therefore not arbitrary or capricious. Of significance is the failure to disclose the 2002 car accident. Even if the Court were to accept Keys’ reading of the question as accurate, his failure to provide the complete report—without explanation—is highly suspect, and leads to a reasonable inference that he did not want the Plans to see Dr. Janecki's conclusion that the accident caused the conditions disclosed because it could harm his application.

Moreover, the issues identified by the Board upon its review of Keys’ Social Security disability file provide cause for alarm and, when taken as a whole, support the reasonableness of the Board's decision. Specifically, the information Keys provided in his application for Social Security disability benefits regarding his capacity to work did not comport with what he provided to the Plans. In fact, the information was pointedly different; while telling the Plans in 2003 that he could only average 2½ hours of work a week due to his physical condition, he then told the Social Security Administration that he worked six hours a day from 1993 through June 30, 2009, including walking for 6 hours, standing for 5.5 hours, and sitting for 6 hours. Additionally, evidence that Keys reapplied for Social Security disability in Jackson, Mississippi after being denied in Tampa, Florida is puzzling considering that he resided in the Tampa area and his various submissions to the Board concerned that area. Keys later used the Jackson, Mississippi award to support his appeal of the Board's decision in 2011 and the Board subsequently found him eligible for benefits based on this award. Because of these glaring inconsistencies, the Board's determination that Keys may have obtained Social Security benefits via fraud was reasonable.

Notwithstanding the questionable conduct that appears on the record, it is the cause of Keys’ disability that resolves the issues of whether he received the wrong disability classification and whether he was overpaid T&P benefits which the Plans can recoup as raised in the complaint and counterclaims. The Court's decision, therefore, ultimately turns on whether the Board reasonably decided the cause of Keys’ total and permanent disability. The Court finds that the Board did not reasonably decide the cause of Keys’ total and permanent disability.

b. Cause of Keys’ total and permanent disability

In their motion for summary judgment, the Plans take the position that "[t]he Board reasonably concluded the car accident was the ‘but for’ cause of Keys’ disability, and therefore he was not entitled to Football Degenerative benefits." (Doc. 61 at 15). The Board acknowledges that Keys had impairments predating the accident, but then argues that Plan doctors repeatedly found that he was able to work with the impairments. See id. at 15-16. The Board further argues that things changed only after the car accident, with Keys starting treatment within days of the accident and undergoing medical care for the next year or more and that the treating doctor determined in August 2003 that the disabling impairments were a direct result of the injuries sustained in the car accident. Id. at 16. Notwithstanding, Keys maintains that the Plan's medical experts determined that he was unable to work due to his NFL related impairments and this determination was valid. (Doc. 57 at 17). He argues that the Plans’ doctors were aware of the impairing conditions he had identified, were on notice of his 2002 accident based on the medical records provided to them, and "had a great deal of experience in examining NFL players.". (Doc. 61 at 4-5). Further, he argues that the Board members—who are not medical experts—relied solely on Janecki's August 2003 report to find that the car accident was the "but for" cause of his injuries and this was not reasonable. Id. at 1-6.

The medical records before the Board included Dr. Unger's reports from 1991-1998, Dr. Janecki's August 2003 and September 2003 reports, Dr. Shaker's report of MRI studies, Dr. Hochman's March 2003 IME report, Dr. Selesnick's December 2003 IME report for the Plans, and Dr. Apple's April 2006 IME report Plans. As indicated earlier, Dr. Unger opined in 1991 that Keys could engage in occupations which preclude bending, lifting, climbing and like physical activities. AR at 448-449. At that time, however, he determined that Keys suffered a 50-59% loss of the use of his back, 30-49% loss of the use of his shoulder, and a 60-79% loss of use of his knees due to his NFL career; had "multiple extremity involvements, with arthritis of the right shoulder, chondromalacia of both knees, and tear of the medial meniscus ;" and "anticipated that further degeneration in the right shoulder may develop in time and [that Keys] may develop early arthritic changes in the knees." Id. at 449, 452. That opinion remained the same over the next several years that Dr. Unger examined Keys. Id. at 522, 526-531, 534, 536-543, 550, 552-557, 564-565, 567-571, 631-632, 658.

A few years later Keys was involved in the rear end car accident—on May 7, 2002. Id. at 3588. His left knee struck the dashboard during the collision, but he did not suffer any cuts or bruises and he did not lose consciousness. Id. at 4391, 3588. According to Dr. Hochman's March 2003 IME report, Keys began to experience pain to his neck, lower back, and left knee following the accident and was seen by Dr. Shaker on May 10, 2002, who referred him for cervical and lumbar MRIs. Id. at 4391. The MRI reports and the second page of Dr. Shaker's report—which is undated —appear in the administrative record. Id. at 1025-1030. On the second page, Dr. Shaker opined that "[the] imaging studies revealed an abnormal degree of degenerative osteoarthritis in Keys’ cervical spine, lumbar spine, and knees, which were all existing prior to the May 7, 2002 accident," and that "[t]he arthritic lesions demonstrated were largely the result of his football activities." Id. at 1030.

Dr. Hochman examined Keys on March 21, 2003, "relating to injuries sustained in a MVA on May 7, 2002." Id. at 4391-4395. From his examination and review of Keys’ medical records and the accident history, Dr. Hochman opined that Keys "was not disabled by the subject injury." Id. at 4392. He further stated:

It is my opinion ... that Mr. Keys sustained left knee contusion as well as grade I cervical and lumbar sprains / strains, during the 5/7/02 MVA. This injury was at least somewhat complicated by previous spinal and bilateral knee injuries / surgeries associated with Mr. Keys’ previous occupation as a collegiate, and then professional, football player. Today's examination, however, revealed no objective residual signs of injury related specifically to the 5/7/02 MVA.

Mr. Keys has undergone a protracted (10 month) course of chiropractic treatment, as described. It is my opinion that further chiropractic treatment is not reasonable, necessary, and causally related for/to the 5/7/02 injury. Prognosis, as it relates solely to the 5/7/02 injury, appears good.

Id. at 4394.

In his August 1, 2003 report, Dr. Janecki indicated that Keys presented with pain to his neck, lower back, left knee, and weakness of his right knee as a result of a motor vehicle accident of 05/20/02." Id. at 3602. From his examination, Dr. Janecki opined that the conditions observed to Keys’ cervical spine, bilateral shoulder, lumbar spine, and left knee were "the direct result of injuries that [Keys] sustained in a motor vehicle accident on 05/20/02." Id. at 3604. He further opined:

This patient has reached maximum medical improvement and his overall prognosis for the future is poor. Despite adequate treatment and the passage of time, this patient has not been restored to his pre-injury state and continues to have substantial symptoms in his cervical and lumbar spine as well as his left knee. His symptoms have worsened during the course of the last year and in my judgment, based on his physical examination, x-rays, and MRI findings, this patient has permanent impairment with permanent loss of important bodily functions and permanent restrictions in terms of his activities of daily living and his occupation.

Id.

Subsequently, in a letter dated September 4, 2003, directed "To Whom It May Concern," Dr. Janecki attributed Keys’ injuries to his participation in professional football. Id. at 1032. In that letter, Dr. Janecki explained:

I have evaluated and treated Mr. Tyrone Keys since July 10, 2002. l am an orthopaedic surgeon in Tampa, Florida, and we have evaluated him for his neck low back, and his left knee. The patient's left knee condition, which at the present time has developed degenerative arthritis conditions, is a direct result of his participation in professional football.... The patient's cervical spine has been actively managed by other physician, but we have evaluated him on one occasion

and, based on our review, the patient has developed premature cervical spondylosis with upper extremity radicular symptoms referred to as radiculopathy. This premature development of spondylosis again is directly related to his participation in professional football.

The same can be said of the patient's lumbar condition where he is again known to have significant lumbar spondylosis with facet arthropathy at multiple levels and lower extremity radiculopathy or symptoms into his lower extremities, right greater than left. This again is a consequence of his participation and has been accelerated as a result.

Id. There is no indication or explanation as to why Dr. Janecki's opinion changed in the space of a month and it does not appear from the record that the Board inquired of Dr. Janecki.

Dr. Selesnick first examined Keys in December 2003 and then again in January 2005 in furtherance of the application for T&P benefits. As Keys contends, the Board advised on each occasion that Dr. Selesnick was provided a copy of the medical records Keys had provided to the Plans. Id. at 794, 1179. This would have included among other things, the fourth page of Dr. Shaker's report of MRI studies which referenced the May 7, 2002 accident and reports regarding various MRI scans taken in 2002. Id. at 4360-4365. Dr. Selesnick specifically indicated in his 2003 report that he reviewed scans performed on August 27, 2002. Id. at 850-851. Based on other evidence in the record, those scans related to the May 2002 incident. Id. at 1024. Thus, even though Keys did not disclose his 2002 accident in his application, documents provided to Dr. Selesnick could have put him on notice of the accident which in turn could have informed his opinion. Following his examination, Dr. Selesnick opined that Keys was unable to work in any employment or occupation for remuneration or profit and that his limitations were permanent. Id. at 850-852. His opinion remained the same following his 2005 examination of Keys. Id. at 1183-1185. The Plan concedes that the opinions tie Keys’ injuries to his NFL career. (Doc. 58 at 16)

About a year later, Dr. Apple examined Keys for the Plans. Id. at 1262-1265. As before, the Plans informed Keys that his medical records were sent to Dr. Apple. Id. at 1256. Dr. Apple reviewed the 2002 scans which were performed after the car accident. Id. at 1264. While those scans would have noted the date of incident, it is apparent from the report that Keys did not disclose his 2002 accident when describing any of his various injuries. Id. at 1262-1264. Dr. Apple opined that Keyes "sustained multiple musculoskeletal injuries due to his NFL career, the cervical spine, the right shoulder, the lumbar spine, and both knees ... [and] continues to be unemployable because of these musculoskeletal problems." Id. at 1265.

According to the Board's final letter to Keys, Dr. Selesnick and Dr. Apple were precluded from evaluating the cause of Keys’ alleged total and permanent disability due to their lack of knowledge of the car accident. Id. at 5297. As such, it is apparent that the Board did not rely on either opinion in assessing whether Keys’ injuries resulted from NFL football. Certainly, a plan administrator can reject certain evidence presented to it. See Hopp v. Aetna Life Ins. Co. , 3 F. Supp. 3d 1335, 1339 (M.D. Fla. 2014) (noting that "an administrator's decision that rejects certain evidence and credits conflicting proof may be reasonable"). Because, the accident was not expressly disclosed by Keys at that point, and it is not clear if they became aware of the accident before or prior to their examination of Keys, it was not unreasonable for the Board to reject the opinions of Dr. Selesnick and Dr. Apple in determining the source of Keys’ disability.

The Board also determined that Dr. Janecki's reports were "patently contradictory" and noted that Dr. Culverhouse's explanation undermined Dr. Janecki's credibility. Id. at 5296. Yet, from all indications, the Board gave more deference to the August 2003 report which opined that the disabling impairments were the direct result of the injuries sustained in the accident. This is clear from the Plans’ motion for summary judgment, in which they cite portions of that letter, point to the Board's ability to weigh conflicting evidence, and argue that Keys would downplay the report. (Doc. 58 at 16-17). Interestingly, the Board also argues that Dr. Culverhouse's explanation as to Dr. Janecki's conflicting opinion did not make the September 20003 report attributing the injuries to NFL football, any more credible than the August 2003 report attributing the injuries to the 20002 accident. (Doc. 58 at 20 n.22). The converse is also true, leaving the Court to speculate as to how the Board eventually decided to rely on Dr. Janecki's August 2003 opinion when he reached the exact opposite conclusion just a month later.

A plan administrator may not ignore certain statements of a medical consultant in favor of other statements by the same consultant. See Mottert, 2018 WL 6447307, at *13 (M.D. Fla. Nov. 15, 2018). As this Court has stated on multiple occasions, cherry-picking findings evidences an abuse of discretion. Id. at 15. In Rementer v. Metro. Life Ins. Co. , No. 6:04-cv-1148-ORL-22JGG, 2006 WL 66721 at *2 (M.D. Fla. Jan. 10, 2006), the claims administrator, MetLife, in denying the benefits application, cited all of the restrictions identified by its paid independent consultant except the one that was the most damaging to its position. This Court held that it was patently unreasonable that in denying the claim MetLife relied on its hired consultant yet ignored his "specially-identified limitation of no ‘prolonged sitting (ie needs to change position),’ " and that "it was arbitrary and capricious for the insurer to ‘cherry-pick’ among the limitations specifically identified by [the consultant]."

Very recently, the Eleventh Circuit took a similar approach while addressing an analogous issue in Boysen v. Illinois Tool Works Inc. Separation Pay Plan , 767 F. App'x 799 (11th Cir. 2019). In that case, Plaintiff David Boysen was the beneficiary of a separation pay benefits plan administered by his former employer, Illinois Tool Works ("ITW"), and governed by ERISA. Id. at 800. Pursuant to the terms of the plan, he was entitled to severance benefits only if he was terminated because his job had been permanently eliminated, but not if he was terminated for cause. Id. The issue therefore concerned the reason for his termination. Id. at 807-808. In the district court, the Parties offered competing evidence about whether Boysen was terminated because of poor performance or because his job was eliminated. The district court granted summary judgment in favor of ITW, finding that "[t]he documentary record is absolutely clear that [he] was fired for poor performance" and that "[t]here [wa]s no evidence that this was a pretext for eliminating his position." Id. at 805 (first two alterations in original). The Eleventh Circuit disagreed, finding that ITW denied Boysen a full and fair review because, on appeal of the termination of his benefits, it failed to investigate his claims that his job had been eliminated. Id. at 800, 808-811. The following remarks are certainly relevant to the case at bar:

We assume, for the sake of argument, that ITW and the Plan are correct that the burden is generally on a claimant like Mr. Boysen to prove his entitlement. ... And we acknowledge that nothing in ERISA statutes or our precedent requires a plan administrator to "ferret out evidence in [Mr. Boysen's] ... possession." Id. But this does not mean that the plan administrator is free to simply ignore evidence that has a direct bearing on, or refutes, his findings. Nor can he refuse to conduct additional investigation when it has been brought to his attention that relevant documents almost certainly exist. Prior precedent supports our conclusion.

...

Nothing in ERISA, of course, requires plan administrators to independently "scour the countryside in search of evidence to bolster a petitioner's case." Harrison v. Wells Fargo Bank, N.A. , 773 F.3d 15, 22 (4th Cir. 2014). But, as the Fourth Circuit explained in Harrison , neither does "ERISA ... envision that the claims process will mirror an adversarial proceeding where the claimant bears almost all of the responsibility for compiling the record, and [where] the fiduciary bears little or no responsibility to seek clarification when the evidence suggests the possibility of a legitimate claim." Id. at 21 (internal quotation marks omitted) (quoting Gaither , 394 F.3d at 807 ). "Rather, the law anticipates, where necessary, some back and forth between administrator and beneficiary." Id. "A searching process does not permit a plan administrator to shut his eyes to the most evident and accessible sources of information" that might support the claim; indeed, "an ERISA fiduciary presented with a claim that a little more evidence may prove valid should seek to get to the truth of the matter." Id. (internal quotation marks omitted) (quoting Gaither , 394 F.3d at 808 ).

We do not hold that plan administrators are obliged to search for and consider every document "submitted by identification." We rule only that plan administrators, constrained as they are by certain fiduciary obligations, cannot refuse to consider key relevant information, or to investigate further when faced with potentially conflicting evidence , or deny access to information that is potentially beneficial to a claimant.

Id. at 809, 811 (emphasis added).

Similarly, the Southern District of Florida took this approach in Browning v. Hartford Life & Accident Ins. Co. , No. 18-80991-CV, 2019 WL 7841719 (S.D. Fla. Apr. 23, 2019). Like the case at bar, there were two conflicting statements from the same provider. Id. at *3, 7. In denying summary judgment for the Defendant, the court stated:

This transaction suggests that Defendant focused on the one statement by Dr. MacGill that most strongly indicated that Plaintiff was physically capable of returning to work while ignoring those statements that indicated an increasingly diminished level of physical capability. While I acknowledge that it was not Defendant's burden to " ‘scour the countryside in search of evidence to bolster [Plaintiff's] case,’ " Defendant was not entitled to refuse "to investigate further when faced with potentially conflicting

evidence." Boysen , 2019 WL 1489078 *10-11 [767 Fed.Appx. at 811-12] (quoting Harrison , 773 F.3d at 22 ). Dr. MacGill's statements about Plaintiff's condition do not create a clear picture of Plaintiff's physical capabilities. But rather than asking Dr. MacGill to clarify the ambiguities in his statements, Defendant wrote to him to reinforce the statement in which Plaintiff seems the healthiest. In doing so, Defendant ignored contradictory and ambiguous evidence about Plaintiff's condition in favor of evidence that would support a conclusion that Plaintiff was not disabled under an "Any occupation" standard. Defendant is not entitled to ignore the evidence that does not suit it.

Id. at *8 (emphasis added). From these cases, it is apparent that it is not simply enough to consider two conflicting statements from a single source and then rubber stamp the one that most supports the Plans’ position, as was done here.

The Board's conclusion that the accident must have led to the change in the nature of Keys’ disability—in light of repeated findings that he could still work—is backed only by Dr. Janecki's August 2003 report which conflicted with Dr. Janecki's September 2003 and April 2009 reports. Yet, the Board also had evidence from Dr. Hochman that in March 2003, Keys had "no objective residual signs of injury related specifically to the 5/7/02 MVA. " Id. at 4394 (emphasis added). The Board also had an opinion from Dr. Shaker that "[the] imaging studies revealed an abnormal degree of degenerative osteoarthritis in Keys’ cervical spine, lumbar spine, and knees, which were all existing prior to the May 7, 2002 accident. " Id. at 4271 (emphasis added). It does not appear that the Board considered either of these two statements when it rendered its decision. The decision by the Board that Keys’ disability resulted from his 2002 motor vehicle accident was not reasonable, in light of all the evidence, especially when coupled with the fact that the Board apparently found issues as to Dr. Janecki's credibility and selected the opinion that most supported its position, without further clarification from Dr. Janecki. Thus, the Board arbitrarily ignored evidence, rendering its decision to reduce and terminate Keys’ disability benefits arbitrary and capricious.

Therefore, the Plans’ motion for summary judgment as to Plaintiff's claims addressing the Board's decision that T&P benefits were overpaid must be denied. Likewise, Count II of the Plans’ Counterclaim and the portion of Count III alleging unjust enrichment based upon the overpayment of T&P benefits must be denied. Both claims allege that Keys was never entitled to Football Degenerative/ Inactive A benefits and received amounts he was not entitled to. (Doc. 39 at ¶¶ 28-61). The Board's decision that Keys’ disability resulted from the car accident was not reasonable and thus precludes summary judgment in its favor on those claims. Plaintiff's motion for summary judgment will be granted, in part, as the Board acted arbitrarily and capriciously in cherry-picking evidence, not investigating further when faced with conflicting evidence and not considering key relevant information. Thus, the Board's decision was unreasonable.

c. Remand

The Plans contend that remand is appropriate where the Court finds that the Board failed to conduct a full and fair review of Keys’ entitlement to benefits. (Doc. 60 at 9). "District courts have ‘considerable discretion’ in deciding whether remanding the claim to the administrator is appropriate." Vivas v. Hartford Life & Accident Ins. Co. , No. 10-22992-CIV, 2012 WL 13076326, at *7 (S.D. Fla. Sept. 17, 2012). The Eleventh Circuit has stated that "as a general rule, remand to the plan fiduciary is the appropriate remedy when the plan administrator has not had an opportunity to consider evidence on an issue." Levinson v. Reliance Standard Life Ins. Co. , 245 F.3d 1321, 1330 (11th Cir. 2001). However, the Court cautioned that "remand to the plan administrator is [not] appropriate in every case." Id. In Levinson ,

The district court held that remand was not necessary in this case because the administrator had considered all of the record evidence and had reached a conclusion under the heightened arbitrary and capricious standard that was unsupported by the evidence in the record. The district court reasoned that in cases like this one, where the administrator considered all of the record evidence and reached a conclusion, remand is not appropriate.

Id. at 1327. The Eleventh Circuit upheld the "the district court's refusal to remand the issue of Levinson's eligibility for benefits to Reliance." Id. at 1328. The court reasoned that Reliance had an adequate opportunity to establish an administrative record containing evidence contradicting Levinson's evidence pointing to disability on two occasions—when it first considered Levinson's claim and upon Levinson's administrative appeal—but did not do so. Id. Remand is also inappropriate when such action would be futile, such as where denial was particularly flagrant, or the proper result will be again to deny benefits for some or all of the relevant period once the plan administrator corrects the errors in its decision. Vivas , 2012 WL 13076326, at *7.

However, in Melech v. Life Ins. Co. of N. Am. , 739 F.3d 663, 666 (11th Cir. 2014), the Eleventh Circuit instructed the district court to remand to defendant plan administrator for consideration of the evidence Melech had presented to the Social Security Administration because the administrator did not have that evidence when it denied her last appeal—and in fact could not have had that evidence when it initially denied her claim. Recently, this Court remanded to the plan administrator in Mottert for further consideration of evidence not properly considered. 2018 WL 6447307, at *15. That decision was based on the Court's finding that the administrative record reflected that the plan administrator relied on flawed reports of its consultants, arbitrarily ignored evidence, cherry-picked its consultants’ findings, or all three, and that proper consideration of the evidence may support a finding of disability. Id. at *14.

In this case, the Board did in fact have ample opportunity to consider all the records before it, obtain necessary clarification from the doctors involved, and develop an administrative record which more fully addressed the cause of Keys’ total and permanent disability as in Levinson. However, the Court's finding that the Board cherry-picked which of Dr. Janecki's 2003 reports to rely on and ignored other evidence supporting a finding that Keys’ disability resulted from his professional football career makes this case more analogous to Mottert . As in Mottert , remand for further consideration is proper. The Court will therefore remand this case for the Board to take actions consistent with this decision, including, but not limited to, seeking clarification from Dr. Janecki as to the change in his opinions between August 2003 and September 2003, inquiring of Dr. Apple regarding whether he was aware of the 2002 accident, considering his specific finding that Keys’ injuries were caused by football, and if not, whether that knowledge would affect his opinion. To be clear, "plan administrators ... cannot refuse to ... investigate further when faced with potentially conflicting evidence." Boysen , 767 F. App'x at 811. This matter will be remanded for further consideration of all relevant evidence.

d. Overpayment of LOD benefits

In its 2018 letter to Keys, the Board asserted that Keys’ fraudulent conduct predated his 2003 application because Keys failed to inform the Plans that he was awarded workers’ compensation benefits, which precluded the Plans from offsetting amounts from his LOD benefits. Id. at 5279. Because of this, he was overpaid by at least $39,000. Id. Keys’ application to the Plans was dated November 11, 1991. Id. at 457. In it, he noted that his workers’ compensation application was still pending. Id. The Plans received the application on December 16, 1991. Id. Apparently a decision had been rendered on his workers’ compensation application before then—on November 26, 1991. Id. 1166-1167. Yet, Keys did not notify the Plans until he sought benefits again in September 2003. Id. at 802, Doc. 57 at 15, Doc. 61 at 7. The record supports that Keys did not timely disclose his receipt of the workers’ compensation award.

In his response to the Plans’ motion, Keys argues that the LOD reimbursement claim was barred because it was brought more than five years after the Plans had notice of his receipt of workers’ compensation benefits. (Doc. 61 at 16-17). In reply, the Plans contend that "mere mention of a prior workers’ compensation award on the last page of Keys’ T&P application was insufficient to put the Plan on notice that it had overpaid Keys LOD years earlier" under the circumstances and that "[t]he first true notice that Keys had been overpaid LOD benefits came in February 2017" upon Groom Law's advice. (Doc. 64 at 7-8).

The parties both agree that the Plans’ own limitation provision does not apply to claims the Plans might bring. (Doc. 58 at 23, Doc. 61 at 60). As the claim regarding Plaintiff's failure to disclose his workers’ compensation award sounds in fraud, the Court finds that this claim is governed by the statute of limitations on fraud. Pursuant to Florida Statutes § 95.11 (3)(j) "[a]legal or equitable action founded on fraud" shall be commenced within four years. The period begins to run "from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence." Fla. Stat. § 95.031(2)(a) ; Sphere Drake Ins., Ltd. v. La Cruise, Inc. , No. 3:04-CV-948-J-25 MCR, 2010 WL 11508182, at *1 (M.D. Fla. Nov. 15, 2010) ("In cases of fraud, the statute of limitations ordinarily begins to run with the discovery of the fraud.") (citing Brugiere v. Credit Commerciale France , 679 So.2d 875, 877 (Fla. 1st DCA 1996) ). However, "an action for fraud under s. 95.11(3) must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered." Fla. Stat. Ann. § 95.031(2)(a)

Here, the Plans were on notice of the possible overpayment as early as September 2003 when Keys submitted his T&P application. The four-year period to bring a claim based on fraud had long expired when this action was commenced in 2018 and the Plans filed their counterclaims in 2019, and serves as a bar to the Plans’ recovery. See Mangin v. Robertson , No. 6:07CV1649-ORL-18KRS, 2008 WL 2522576, at *3 (M.D. Fla. June 24, 2008) (finding that claim for medical fraud was barred where "Plaintiff discovered the facts giving rise to the alleged medical fraud by September 19, 2002" and filed suit on October 16, 2007). Regardless, by the time the action was commenced in 2018 and the Plans raised their claims in 2019, more than twelve years had elapsed since Keys failed to notify the Board that he was awarded workers’ compensation benefits—in November 1991—that should have offset his LOD benefits. See § 95.031(2)(a), Fla. Stat. (stating that "in any event an action for fraud under s. 95.11(3) must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered."). Accordingly, the Court agrees with Keys that regardless of the merit to the Plans’ claim that Keys was overpaid LOD benefits, the action on this claim was not brought timely and the Court therefore denies summary judgment for the Plans on the claims related to the overpayment of LOD benefits.

Accordingly, it is hereby ORDERED :

1. Defendants’ Motion for Summary Judgment [Doc. 58] is DENIED.

2. Plaintiff's Motion for Summary Judgment [Doc. 57] is GRANTED, IN PART , as discussed in this Order.

3. This case is REMANDED to Defendants for further evaluation of the evidence and reconsideration of Plaintiff's entitlement to Inactive A T&P benefits. Specifically, Defendants shall clarify and evaluate (1) the reason for the change in Dr. Janecki's opinion between August 2003 and September 2003; (2) whether the plan neutrals were aware of the 2002 accident, and if not; (3) whether that would change their opinion on causation. Defendants shall also consider Dr. Shaker and Dr. Hochman's conclusions that there were no residual injuries from the 2002 car accident.

DONE AND ORDERED in Tampa, Florida on October 2, 2020.