Opinion
Civil Action No. 01-0013.
November 1, 2001.
ORDER AND REASONS
This is an ERISA case. The plaintiff alleges that his eligibility to receive certain employment benefits was wrongfully terminated by defendants. The following motions have been filed: plaintiff James Ramos' motions to supplement the administrative record and for summary judgment; and defendants BellSouth Long Term Disability Plan and Kemper National Services, Inc.'s motion for summary judgment. The motions were submitted on the briefs at an earlier date.
FACTUAL SUMMARY
Plaintiff James Ramos ("Ramos") is a fifty year old man who was employed as an installer repairman (service technician) by BellSouth Telecommunications, Inc., ("BST") for seventeen years. BST's parent company, BellSouth Corporation, established a self-funded BellSouth Long Term Disability Plan (the "Plan") to provide long term disability ("LTD") benefits to eligible employees at participating companies such as BST. Defendant Kemper National Services ("Kemper") is the third party administrator of BellSouth's Plan. Kemper is solely responsible for making benefit determinations under the long term disability plan. BellSouth compensates Kemper for its services on a flat fee basis.
Ramos first injured his back on the job in 1986 and underwent a partial diskectomy. He returned to work after the surgery. A year later, again while on the job, he sustained another injury and underwent another partial diskectomy. He returned to work. In 1989, Ramos was again injured on the job and underwent his third surgery. He was only able to return to work on a limited basis and in 1991 was given a disability retirement. Ramos subsequently underwent surgery a fourth time, a complete diskectomy at the L4-L5 level. See Administrative Record ("AR") at #11, IME report by Dr. D.L. Kewalramani dated 08/07/00.
In 1992, Kemper determined that Ramos was "disabled" under the Plan and eligible for LTD benefits. Ramos never received any LTD benefit payments under the Plan because his worker's compensation and Social Security benefits offset the LTD payments to which he otherwise would be entitled under the Plan. Ramos has had several medical examinations to determine his continued eligibility for LTD benefits under the Plan. On June 10, 1998, Dr. Robert Steiner, his treating orthopedic surgeon, concluded that Ramos suffered from "multi-level degenerative lumbar disc disease." See AR at #3, Letter by Dr. Steiner to Kemper, 6/10/98. After an examination in April, 2000, requested by Kemper. Dr. Steiner opined Ramos "has multi-level degenerative lumbar disc disease and persistent left sciatica secondary to epidural scarring", has undergone four lower back surgeries, and was "unfit for work", including work in a sedentary capacity. See AR #6, Opinion letter by Dr. Steiner to Kemper, 4/18/2000.
On May 18, 2000, at Kemper's request, an occupational therapist and a physical therapist of HealthSouth, an independent contractor, examined Ramos for a Functional Capacity Evaluation ("FCE"). The FCE indicated that Ramos "demonstrated some abilities within the sedentary physical demand category", but that "inconsistencies were evident during functional testing" and suggested "possible submaximal effort and symptom magnification behaviors." See AR at #7, Functional Capacity Evaluation.
On July 10, 2000, Kemper received the office notes of Dr. Kathleen Wilson of the Oschner Clinic, Ramos' current treating physician, describing his recent physical examination. She reported no health problems other than "1. Heavy smoker, now with chronic cough . . ., 2. Hypercholesterol . . ., 3. Tobacco abuse. 4. Alcoholism." See AR #9, Notes of Dr. Wilson, 2/21/2000.
On August 7, 2001, Dr. D.L. Kewalramani, a physiatrist, conducted an independent medical examination ("IME")for Kemper. According to Dr. Kewalramani, Ramos "was definitely magnifying his complaints." He concluded that Ramos "should be able to work in a sedentary position for a period of 8 hours a day." See AR #11, IME of Dr. D.L. Kewalramani, 8/7/00.
Kemper had Ramos under surveillance between March and August of 2000. Surveillance reports indicated that his activities included driving a car, leaning out of the driver's side door to pick up a newspaper, retrieving mail, carrying trash to the street and carrying the garbage can back to his house, and walking to and from a bar and a convenience store. His gait was described a normal, with hands swinging at his side, and without the use of a cane. See AR #5, 8 and 12, surveillance reports.
In July of 2000, Kemper requested a Labor Market Survey and Transferrable Skills Analysis ("LMS/TSA"). The TSA, part of an Employability Assessment Report ("Report"), concluded that Ramos was "capable of engaging in gainful employment." See AR #16, LMS/TSA dated 11/10/00, p. 3. The Report noted that Ramos was earning $628.52 a week or $15.71 an hour at the onset of disability, and that the Plan requires potential occupations located within a 35-mile radius from Ramos' home that pay at least 50 percent of his prior earning capacity, $314.26 a week or $7.86 an hour. The LMS then identified jobs available within 35 miles of Ramos' home that were within Ramos' work capabilities and that paid the requisite amount.
On November 21, 2000, based on the results of the LMS/TSA, Kemper determined that Ramos was no longer "disabled" under the Plan and terminated his eligibility for LTD benefits. Ramos filed this lawsuit and an administrative appeal.
On July 10, 2000, Kemper notified Ramos that he was no longer eligible for disability pension benefits. Kemper indicated in its letter to Ramos that the Functional Capacities Evaluation performed on May 18, 2000 supported a finding that he could perform work in a sedentary capacity. Ramos' administrative appeal was denied. See AR at #10 and 14. This particular determination has not been challenged in this lawsuit.
According to the Statement of Uncontested Facts and the Declaration of Rosalie Fortis, Exhibit A attached to Kempers motion for summary judgment, the appeal was denied by the appeal review committee, but no date was given.
LAW
A. Summary Judgment
Summary Judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). "A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, `that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor.'" Moore v. Reliance Standard Life Ins. Co., 2000 U.S. dist. LEXIS 15603 *4 (E.D. La. Oct. 17, 2000) (Vance, J.), citing Lavespere v. Niagra Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1989), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed. 2d 202 (1986)).
If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. [Citations omitted.] The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. [Citations omitted.] The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. [Citations omitted.]
Moore, supra at *4-5.
B. Review of ERISA claims
Federal Courts have exclusive jurisdiction to review determinations made by employee benefit plans, including disability benefit plans. 29 U.S.C. § 1132(a)(1)(B). Generally, benefit determinations made by a plan administrator may be divided into two categories: 1) determination of the facts underlying the claim for benefits; and 2) determination of whether those facts constitute a claim to be honored under the terms of the plan. Wildbur v. ARCO Chemical Co., 974 F.2d 631, 637 (5th Cir. 1992) (citing Pierre v. Connecticut General Life Ins. Co., 932 F.2d 1552, 1557 (5th Cir.), cert. denied, U.S. 112 S.Ct. 453, 116 L.Ed.2d 470 (1991) (emphasis in original). Case law provides the appropriate standards for review depending on which category the challenged administrative determination falls into; that is, whether the district court is asked to review an issue of plan interpretation or a factual determination by the plan administrator. This case implicates both categories.
It is well settled in this circuit that all factual determinations under ERISA plans are to be reviewed under an abuse of discretion standard. Meditrust Fin. Servs. Corp. v. The Sterling Chemicals, Inc., 168 F.3d 211, 215 (5th Cir. 1999) (citing Pierre v. Connecticut Gen. Life. Ins. Co., 932 F.2d 1552, 1562 (5th Cir.), cert. denied, 502 U.S. 973, 112 S.Ct. 453, 116 L.Ed.2d 470 (1991)).
The standard for reviewing the plan administrator's interpretation of the terms of the plan depends on the authority granted to the plan administrator by the plan.
A denial of benefits challenged under § 504(a)(1)(B) of ERISA, 28 U.S.C. § 1132(a)(1)(B), is reviewed under a de novo standard unless the plan gives the administrator "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, 103 L.Ed.2d 80 (1989). If the administrator has discretionary authority, a reviewing court applies an abuse of discretion standard. Id. Discretionary authority cannot be implied; an administrator has no discretion to determine eligibility or interpret the plan unless the plan language expressly confers such authority on the administrator. Cathey v. Dow Chemical Co. Medical Care Program, 907 F.2d 554, 558 (5th Cir. 1990), cert. denied, U.S., 111 S.Ct. 964, 112 L.Ed.2d 1051 (1991).Wildbur, 974 F.2d at 636.
The Plan at issue provides as follows:
10.6 Final Authority. The EBCRC (and its delegates) has complete discretionary authority to determine Benefits and to interpret the terms and provisions of the Plan. Such determinations and interpretations shall be final and conclusive.
Record V.1, Doc. #18-Exhibit B, BellSouth Long Term Disability Plan for Non-Salaried Employees at p. 9. Clearly, under the Plan the administrator has absolute discretionary authority to determine eligibility and interpret the terms of the Plan. The Court therefore reviews Kemper's interpretation of the Plan for abuse of discretion.
Under the abuse of discretion standard, the Court considers whether the plan administrator's actions were arbitrary and capricious. Moore, 2000 LEXIS at 6; Meditrust, 168 F.3d at 215; see also Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 601 (5th Cir. 1994) (quoting Salley v. E.I. DuPont de Nemours Co., 966 F.2d 1011, 1014 (5th Cir. 1992)). "Arbitrary and capricious" is a standard that requires a reviewing court to determine if "the decision of the plan fiduciary is `supported by substantial evidence' and based on correct interpretations of law." Wildbur, 974 F.2d at 637, citing Dennard v. Richards Group, Inc., 681 F.2d 306, 314 (5th Cir. 1982)). Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Girling Healtheare, Inc., 85 F.3d 211, 215 (5th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)).
ANALYSIS
A. Kemper's Factual Determination
Ramos claims that Kemper abused its discretion when it made the factual determination that he could do sedentary work. The Court reviews Kemper's factual determinations for abuse of discretion, and that review is limited to consideration of the administrative record. Meditrust Fin. Servs. Corp., 168 F.3d at 215, There is no dispute as to Ramos' medical history or diagnosis of multi-level degenerative lumbar disc disease.
Ramos argues (1) that his treating physician, Dr. Steiner, opined that he was incapable of even sedentary work, (2) that the FCE concluded that "he did appear to have a decreased tolerance for a full work day", and (3) that Dr. Kewalramani indicated that Ramos would need at least six weeks of rehabilitation and medication before being able to return to a sedentary position on a full time basis. Ramos argues that this evidence outweighs other evidence before Kemper that he could work full time in a sedentary job.
Kemper need not give more weight to the opinion of a claimant's treating physician than it gives to the opinions of other physicians or other evidence in the record. See Johnson v. Sun Life Assurance Company of Canada, 2000 WL 33225469 (M.D. La. Nov. 29, 2000) (Parker, J.); Menendez v. Sun Life of Canada, No. Civ. A. 99-2134, 2000 WL 300923 (E.D. La. Mar. 17, 2000) (Mentz, J.); Sweatman, 39 F.3d at 602-03 (declining to give treating physician's opinion greater weight than those of consulting physicians and an investigator's report.) Kemper considered the findings of three doctors: Dr. Steiner, Dr. Wilson and Dr. Kewalramani. It considered the FCE prepared by an occupational therapist and a physical therapist. Dr. Kewalramani opined that Ramos had the functional capacity to work in a sedentary position for 8 hours a day. Dr. Wilson did not state an opinion as to Ramos' capacity to work, but reported no complaints of back pain or use of a cane. Both Dr. Kewalramani and the FCE concluded that Ramos was magnifying his complaints. Dr. Kewalramani noted that "[t]he examination was inconsistent." The FCE noted inconsistencies during functional testing indicating "submaximal effort". Dr. Steiner noted that Ramos displayed a "mild antalgic gait on the left", but the FCE examination reported that he displayed an "antalgic gait right". Furthermore, surveillance reports indicate that Ramos was capable of performing day-to-day physical activities without any human or other physical assistance.
The Court finds Kemper's conclusion that Ramos was capable of sedentary work is supported by substantial evidence and is not an abuse of its discretion.
B. Kemper's Interpretation of the Plan
The Court reviews Kemper's determination that Ramos is not "disabled" under the Plan for abuse of discretion. Wildbur 974 F.2d at 636. Application of the abuse of discretion standard to an administrator's interpretation of a plan may involve a two-step process. Id. at 637; see also Whittaker v. BellSouth Telecommunications, 206 F.3d 532, 535 (5th Cir. 2000). First, the court must determine if the plan administrator's interpretation of the plan was legally correct. Id. It the administrator did not give the plan the legally correct interpretation, the court must then consider whether the administrator's decision was an abuse of discretion. Id., citing Jordan v. Cameron Iron Works, Inc., 900 F.2d 53, 56 (5th Cir. 1990).
1. Was Kemper's interpretation of the Plan legally correct?
In answering the first question, a court considers: (1) whether the administrator has given the plan a uniform construction; (2) whether the interpretation is consistent with a fair reading of the plan; and (3) any unanticipated costs resulting from different interpretations of the plan. Id. at 637-638. In this case, there has been no allegation or evidence as to whether Kemper gave the Plan uniform construction. The only potential unanticipated cost resulting from a different interpretation of the Plan would be that BellSouth may have to pay Ramos LTD benefits under the Plan in the future. This issue is specific to Ramos' case; it does not have broader implications.
The Court's inquiry is focused on the second factor: was Kemper's interpretation consistent with a fair reading of the Plan? Under the Plan, an employee or former employee is eligible for long term disability benefits if that employee meets the definition of "disability" as defined in Section 2 of the Plan:
"Disability" means a physical or mental illness, whether work-related or non-work related, which makes a participant who has been covered under the short term Disability Plan for 52 weeks unable to perform any type of work other than one which pays less than half of his base pay at the time his benefits under the Short Term Disability Plan begin. Effective January 1, 1993, for purposes of the definition of "Disability", a participant's earnings potential shall be determined using potential jobs in the community. The earnings test shall take into account a participant's functional capacities, background, (education, training, work experience) transferable skills, and the participant's age. The geographic area searched for jobs will be within a 35-mile radius of a participant's home address and/or within his prior work location. A participant subject to a Disability is referred to as "Disabled."
Record V. 1, Doc. #18, Exhibit B. If Kemper identifies jobs (1) that Ramos is capable of performing both physically and functionally, (2) located within a 35 mile radius of his home, and (3) that pay at least $7.86 per hour, Ramos is not "disabled" under the Plan. In making this determination, Kemper relied on the LMS/TSA dated 11/10/2000 and prepared by a vocational consultant, Pamela J. Wade, MA, CRC. AR at #16. Ms. Wade was assigned to the case on 10/19/2000 by Cynthia Abadie, identified as a "primary supervisor" in Kemper's Field Care Management office in Plantation, Florida. See AR at #15. The TSA notes that the "client's education level is unknown" and identified the following transferable skills:
The TSA is included in the Employability Assessment Report ("Report") dated 11/10/2000 and attached to the LMS of the same date.
A. Use arithmetic and shop geometry to figure amounts of materials needed, dimensions to be followed, and cost of materials; B. Accept responsibility for the accuracy of the work as it is turned out; C. Perform clerical tasks that do not requite special skills; D. Follow directions and perform work that is routine; E. Read or copy information correctly; F. Speaking clearly and listen carefully; G. Communicate well with many different kinds of people.
Ramos' "work background" was noted as follows:
The FCE noted that Ramos' entire work history was as an employee of BellSouth, and that he worked as a clerk and operator at BellSouth prior to his work as a service technician.
Service Technician 17 years Clerk, General N/A Directory-Assistance Operator N/A
The TSA worksheet titled DOT OCCUPATION MATCHES identified ten jobs that were the closest match to Ramos' work background and transferable skills. Those potential jobs were apparently culled to seven occupational titles for which a wage survey noted a mean salary range for all occupational titles of from $5.15 to $11.00 per hour. Only two of those occupational titles appeared to meet the necessary wage and capability requirements for Ramos: Dispatcher at a mean salary range of $9.03 per hour, and Loan/Credit Clerk at a mean salary range of $9.18 per hour.
The LMS was then conducted to "determine the availability of appropriate occupations within Mr. Ramos' skill and physical capabilities." See AR at #16, p. 1. It identified the following six jobs within a 35 mile radius of Ramos' home that pay at least $7.86 per hour: 1) Customer Service Representative, 2) Clerk General, 3) Collections Representative, 4) Sr. Collections Representative, 5) Assembly Lead Person and/or Assembler, and 6) Input Clerk. See AR at #16 (LMS/TSA) and #17 (Notice of termination letter to Ramos dated 11/21/2000).
In his motion for summary judgment, Ramos argues that he does not have the transferable skills or the work background to perform any of those jobs. Record, V. 2, Doc. #19. The Court agrees that none are within Ramos' capabilities. The position of Customer Service Representative requires twenty-four months of experience in customer service, PC computer skills and knowledge of Windows 95/98. The position of Clerk General, a part-time position, requires at least one year of computer experience and the ability to type 50 words per minute. The two Collections Representative positions require strong customer service skills, and "some computer and typing skills a must". One of those positions requires twelve months of experience. The position of Assembly Lead Person requires twelve months of experience, communication, leadership, organizational skills and basic computer skills; the position of Assembler requires three years of verifiable experience in a machine or fabrication shop. The position input clerk pays $14,770 per year, or $7.10 per hour, and does not meet the minimum salary requirement. The position also requires bookkeeping experience and significant typing and computer skills.
All positions identified require a high school education. While the Preliminary Vocational Assessment prepared by Sharon Shelmire notes that Ramos has a high school education, that document was not in the Administrative Record and was not considered by Kemper. The Court found nothing in the Administrative Record that informed Kemper of Ramos' educational level.
The administrative record is utterly devoid of evidence that Ramos has any typing skills, any computer skills or experience, any leadership or organization skills, any customer service, machine or fabrication shop experience. Based on the information in the record before Kemper, and given his identified transferable skills and work background, Ramos could not qualify for any of the positions identified in the LMS.
Kemper argues that two of the sedentary positions identified in the TSA, dispatcher and loan/credit clerk, pay $9.03 and $9.18 per hour respectively, that Ramos previously worked as a dispatcher, and that for those positions alone, approximately 40 openings are available within 35 miles of Ramos' home.
First, a "mean salary range", which is what the TSA wage survey found, does not identify actual high or low (entry level) salary rates. It is not evidence that a job as "dispatcher", if available, would pay Ramos $9.03 per hour. Second, the TSA states that the wage survey yielding these mean wage rates was completed for the Lake Charles area. It is inapplicable to Ramos' case, and Kemper cannot rely on it as evidence of wage rates (even mean wage rates) in the New Orleans area. Finally, Ramos' prior work as a dispatcher and a clerk was for an unknown duration nearly 30 years ago. It hardly qualifies Ramos as experienced at either occupation.
Next, Kemper argues that according to the LMS, there are 10 current job openings for "collections representative" that pay $8.50 per hour and require no experience. Further, according to Kemper, "[a]lthough a candidate needs "some computer and typing skills", the job does not require the ability to type a minimum number of words per minute, nor does it require knowledge of or experience with any particular program, software, database, or PC." Record Vol. 2, Doc. #25 at p. 4. Kemper argues that "[b]ecause no evidence suggests that Plaintiff is for some reason incapable of performing `hunt-and-peck' typing or of using a computer, the Collections Representative Job should be deemed suitable employment for him". Id. Essentially, Kemper argues that Ramos has the burden of proving that he incapable of performing the identified jobs. Kemper is mistaken.
The Plan states that "the earnings test shall take into account a participant's functional capacities, background, (education, training, work experience) transferable skills, and the participant's age." (Emphasis provided). The word "shall" is mandatory, not permissive. Sierra Club v. Train v. State of Alabama, 557 F.2d 485, 489 (5th Cir. 1997); Coffman v. Wilson Police Dept., 739 F. Supp. 257, 264 (E.D. Pa., June 4, 1990) ("The word `shall' is mandatory, not precatory, and its use in a simple declarative sentence brooks no contrary interpretation.")
Clearly, Kemper failed to "take into account" Ramos' functional capacities, background, education, training, work experience, or transferable skills when it determined that he was no longer disabled under the Plan. Kemper's interpretation is inconsistent with a fair reading of the Plan, therefore, Kemper failed to give the Plan its legally correct interpretation.
2. Did Kemper abuse its discretion?
If a court concludes that the administrator's interpretation is incorrect, the court must then determine whether the administrator abused his discretion. Wildbur, 974 F.2d at 638. Three factors considered in this analysis are: 1) the internal consistency of the plan under the administrator's interpretation; (2) any relevant regulations formulated by the administrative agencies; and (3) the factual background of the determination and any inferences of lack of good faith. Id.; see also Batchelor v. International Brotherhood of Electrical Workers Local 861 Pension Retirement Fund, 877 F.2d 441, 445-48 (5th Cir. 1989). As the Fifth Circuit explained in Batchelor, "when [an administrator's] interpretation of a plan is in direct conflict with express language in a plan, this action is a very strong indication of arbitrary and capricious behavior." Batchelor, 877 F.2d at 445 (quoting Dennard v. Richards Group, Inc., 681 F.2d 306, 314 (5th Cir. 1982).
In this case there is no allegation or evidence as to the first two factors. Ramos claims that Kemper's decision is not supported by the facts and was not made in good faith, therefore was arbitrary and capricious. In support of his claim, Ramos moved to supplement the administrative record with an Initial Vocational Assessment prepared by Sharon Shelmire and a copy of a "chronolog" maintained by Kemper of its determination of Ramos' eligibility for LTD benefits.
In Wildbur, the Fifth Circuit explained that "well-established criteria for evaluating a benefit determination under an abuse of discretion standard makes it obvious that some evidence other than that contained in the administrative record may be relevant to both steps of this process of judicial review." Wildbur, 974 F.2d at 638. The Court reasoned
"One of these (which really involves two separate questions), the factual background of the determination and any inferences of a lack of good faith, may, at least on the question of good faith, require the court to review evidence that was not presented to the administrator. [n14] This is especially true because we have instructed district courts to evaluate inferences of lack of good faith on a sliding scale. We note that "the arbitrary and capricious standard may be a range, not a point. There may be in effect a sliding scale of judicial review of trustees' decisions — more penetrating the greater the suspicion of partiality, less penetrating the smaller that suspicion is . . ." Lowry v. Bankers Life Casualty Retirement Plan, 871 F.2d 522, 525 n. 6 (5th Cir.), cert. denied, 493 U.S. 852, 110 S.Ct. 152, 107 L.Ed.2d 111 (1989).Id. The Fifth Circuit held that "a district court is not confined to the administrative record in determining whether, under our analytical framework, a plan administrator abused his discretion in making a benefit determination." Id. at 639.
Both Ms. Shelmire's Initial Vocational Assessment ("Assessment") and the chronolog were in Kemper's possession and control during the administrative review process and were available for inclusion in the administrative record prior to Ramos' filing of this suit. Both documents are attached to Ramos' opposition to Kemper's motion for summary judgment. Rec. V. 2, Doc. #19. The Court finds that Ms. Shelmire's Assessment and the chronolog are relevant to the issue of Kemper's good faith or lack thereof, and both were considered in the Court's analysis of whether Kemper abused its discretion when it terminated Ramos' eligibility for LTD benefits under the Plan.
As noted previously, although Ramos has been eligible for LTD benefits under the Plan since 1992, BellSouth has paid none because his workers' compensation and Social Security benefits offset any amount he would receive under the Plan. The chronolog entry at 02/11/2000 notes that as of 8/24/99, the claimant (Ramos) was not interested in a lump sum settlement of his claim, but that if his workers' compensation claim is "finalized by way of lump sum settlement", he would be entitled to LTD benefits under the Plan. The chronolog entry dated 3/20/2000 noted that Ramos "is interested in making a settlement with WC since he feels that due to the new buyout plan that is being offered in the 1999 contract [sic] would be beneficial". The entry at 4/19/2000 notes that Ramos is leaning towards making a settlement of his workers' compensation claim. At 5/31/2000, the chronolog notes that the file had been "discussed with Marilyn Seiden a TCM for BST", and states as follows:
3. When all information is rec'd will assess to see if termination of D/P bens is in order * This is a sensitive case, WC adjuster Ellen Marcus has advised that she is currently working on a settlement agreement, and I want to make certain that the correct protocol is followed
On 7/11/2000, the chronolog entry states:
Terminated D/P due to FCE and surveillance initially indicated claimant walking w/o a cane, additional surveillance being considered, currently f/u [follow up] with FCE therapist to see if claimant has enough functionality to support denial of LTD, based upon information rec'd a LMS and TSA/termination of LTD will follow
Please f/u for denial of LTD based upon results of LMS/TSA.
On August 22, 2000, Sharon Shelmire, Kemper Field Care Manager for Louisiana, was assigned to the case to conduct the LMS/TSA. AR at #15. Ms. Shelmire produced an Initial Vocational Assessment dated 9/14/2000, stamped "Received Sep 29, 2000 Plantation, FL." Ms. Shelmire reviewed Dr. Steiner's report, Dr. Wilson's records and the FCE. She interviewed Ramos. She reported that he graduated from high school in 1969, that he has no other vocational training, degrees or certificates, and that he does not have skills or experience in bookkeeping, inventory control, shipping/receiving, scheduling, supervising, instructing, office machines, farm equipment, construction, transportation equipment or machine shop tools. Her Assessment concluded as follows:
Based upon my interview and observation of Mr. Ramos, it is not felt that he is employable within his current physical restrictions. Conducting a Labor Market Survey will not provide viable options for Mr. Ramos.
On November 19, 2000, Kemper removed Ms. Shelmire from the case. The only reference in the record is a copy of an email from Cynthia Abadie to Rosalie Fortis, Kemper Claims Examiner II, as follows:
After speaking with Sharon, it was determined there are issues which may result in conflict of interest/legal concerns if Sharon conducts the TSA/LMS. I have discussed this case with my branch manager, Beth Deitch. It was decided to assign Mr. Ramos' case to another voc FCM.
Ramos argues that Ms. Shelmire was removed because her conclusion did not support Kemper's predetermination to terminate Ramos' eligibility for future LTD benefits. Kemper argues that there is no evidence that Ms. Shelmire was improperly removed from the case.
Kemper was well aware that if Ramos accepted a lump sum settlement of his workers' compensation benefits he would be eligible to actually receive LTD benefits under the Plan, and that he had apparently decided to accept a such a settlement. The chronolog notes that Kemper discussed the case with a BellSouth representative, Marilyn Seiden. One can reasonably infer Kemper's bias toward terminating Ramos' LTD eligibility before he settled his workers' compensation claim. The chronolog entry of 7/11/2000, nearly four months before the LMS/TSA was conducted, does not state that denial of Ramos' LTD eligibility would be considered based on the results of the LMS/TSA. It states that "termination of LTD will follow" (emphasis supplied) based on the results of the LMS/TSA, and "[p]lease f/u for denial of LTD based upon results of LMS/TSA", on the obvious assumption that the LMS/TSA would support that decision. It is no great leap to infer that Ms. Shelmire was removed from the case because her conclusion that Ramos was not currently employable did not support the desired result. Kemper has offered no explanation of what other "conflict of interest/legal concerns" would warrant her removal, and there is no evidence in the record that there was any other reason for it.
The Court concludes that Kemper abused its discretion when it determined that Ramos was not disabled according to the Plan and terminated his eligibility for LTD benefits under the Plan.
STATE LAW CLAIMS
Ramos' complaint stated claims against defendants seeking relief under the Louisiana Insurance Code and state tort law for intentional infliction of emotional distress. These claims are preempted by Section 514(a) of ERISA. Heinamm v. National Elevator Indus. Pension Fund, 187 F.3d 493, 512 (5th Cir. 1999)
CONCLUSION
"ERISA was enacted `to promote the interest of employees and their beneficiaries in employee benefit plans,' [citations omitted] and `to protect contractually defined benefits'. [Citations omitted]". Bruch 109 S.Ct. at 956. The district court understands the Supreme Court's statement to express ERISA's goal of promoting the efficient, inexpensive and fair resolution of benefit claims by the plan administrator. In the case at bar, Kemper did not provide a fair resolution of Ramos' claim. Accordingly, for the above and foregoing reasons,
IT IS ORDERED that Ramos' state law claims are DISMISSED with prejudice; and
IT IS FURTHER ORDERED that Ramos' motion to supplement the administrative record and motion for summary judgment are GRANTED and that defendants' motion for summary judgment is DENIED.