Nelson v. N. Cent. States Reg'l Council of Carpenters' Pension Fund

TODD D. NELSON, Plaintiff, v. NORTH CENTRAL STATES REGIONAL COUNCIL OF CARPENTERS' PENSION FUND, Defendant.

No. 20-cv-585-wmc

United States District Court, W.D. Wisconsin

September 16, 2021

OPINION AND ORDER

WILLIAM M. CONLEY District Judge

In July of 2006, plaintiff Todd Nelson sustained an injury to his neck while lifting tiles at work. Since that date, he has been unable to earn more than $8000 per year, and three doctors have found him to be permanently disabled. In 2017 after discovering he might be eligible due to his two decades of contributions, Nelson also submitted a benefits application to defendant North Central States Regional Council of Carpenters' Pension Fund (“North Central”). At the initial level, the Trustees concluded Nelson was eligible for both prospective and twelve months of retroactive disability benefits. On review, however, the eligibility committee decided that Nelson was owed no more than twelve months of retroactive disability benefits. As for any prospective right, the committee found Nelson was ineligible, including for unreduced early retirement benefits. At the final level of review, North Central's executive committee affirmed that Nelson was owed no more than twelve months of retroactive disability benefits without expressly addressing his claim for unreduced early retirement benefits.

Plaintiff subsequently filed this lawsuit, claiming that North Central wrongfully denied Nelson's claims for unreduced early retirement benefits and disability benefits in violation of § 502(a)(1)(B) of the Employee Retirement Income Security Act (“ERISA”) (codified at 29 U.S.C. § 1132(a)(1)(B)). In response, defendant counterclaimed, seeking to walk back any payments made based on their initial determination that Nelson was owed prospective disability benefits and requesting their repayment. Now pending before the court is defendant's motion for judgment on the administrative record and plaintiff's motion for summary judgment. For the reasons discussed below, the court will enter judgment against plaintiff on his claim for an award of additional retroactive disability benefits, but will otherwise grant his requested relief for unreduced early retirement benefits. Finally, for the same reasons, the court will dismiss defendant's counterclaim.

UNDISPUTED FACTS^[1]

A. The Plan

Nelson was a participant in the North Central States Regional Council of

Carpenters' Pension Fund Pension Plan (“the Plan”). Contributions were last paid to the Fund on Nelson's behalf on July 31, 2006.

The Plan grants discretion to the Trustees to construe and interpret the Plan. Article VII addresses claims for total and permanent disability benefits. Under Section 7.1, total and permanent disability benefits are payable when: the participant has ten years of continuous service immediately preceding his total and permanent disability; the total and permanent disability occurs within 24 months of the last month for which contributions were payable to the fund on the participant's behalf; the participant applies for benefits, submitting satisfactory evidence of his disability; and the Trustees approve the application.

Section 7.2, defines “Total and Permanent Disability” as:

physical or mental condition of a Participant which the Trustees, in their sole judgment, find on the basis of medical evidence, totally and permanently to prevent such participant from engaging in any regular occupation or employment for remuneration or profit and which, within reasonable medical probability, will be permanent and continuous during the remainder of his life.

(AR vol. 1 at 173.) The Plan itself does not provide a definition of what constitutes “employment for remuneration or profit” for purposes of Section 7.2; however, the Summary Plan Description (“SPD”) provides that a participant engages in employment for reasonable remuneration or profit if his income equals or exceeds 2, 080 hours of wages at the federal minimum wage. Section 7.2 further provides that the Trustees may in their discretion accept a Social Security award of disability benefits as evidence of total and permanent disability.

A participant may apply for early retirement benefit (reduced or unreduced) upon reaching the later of age 55 or his tenth anniversary of participation in the Plan. Moreover, a participant may receive unreduced early retirements if he has twenty years of continuous service immediately preceding his retirement and is determined to be totally and permanently disabled at the time he applies for an early retirement benefit, provided the total and permanent disability occurred within 36 months of the last month for which contributions were made on his behalf. To be eligible to receive early retirement benefits, he must have “applied for an Early Retirement Benefit on a form prescribed by or satisfactory to the Trustees, ” and further, the Trustees must have approved the application. (AR vol. 1 at 153.) If the Trustees approve an application for disability benefits, the Plan also contemplates approval of retroactive benefits of not more than twelve months of retroactive payments are to be made, except that a greater award may be given if the Trustees “in their discretion, determine the circumstances warrant it on a case by case basis.” (AR vol. 1 at 177.)

On the other hand, if an application is denied in whole or in part by the Trustees, the Plan permits participants to request a review by the eligibility committee. Additionally, a participant may request further review of the eligibility committee's determination by the executive committee. The Plan requires the executive committee to render a decision within 60 days after receipt of the written request for further review, except for disability claims, which are to be rendered within 90 days.

B. Nelson's Medical History

Nelson suffers from a variety of medical conditions, including degenerative disc disease, arthropathy, fibromyalgia, and hypertension. In 1999, Nelson underwent a C6-C7 cervical spine fusion to treat chronic neck pain secondary to a work-related injury. As previously noted, Nelson suffered another injury at work on July 11, 2006, while lifting tiles as a part of his job as a ceiling installer. About a week after his injury, Nelson met with his primary care physician, Jeffrey Kiel, M.D., complaining of pain and tingling that radiated down the right side of his back and into his leg, limited range of motion, and diffuse tightness and tenderness of paraspinous muscles. An x-ray and MRI confirmed a new, prolapsed disc at ¶ 7-T1 contacting a nerve. On July 25, 2006, therefore, Dr. Kiel limited Nelson to only sedentary work with restrictions on neck movement.

At an August 18, 2006, follow-up appointment, Dr. Kiel advised that “[Nelson] should not work in the field at this time, esp[ecially] looking up at the ceilings as this will only make his herniations worse.” (AR vol. 3 at 32.) On October 12, 2006, Dr. Kiel reiterated that Nelson could only work in a sedentary capacity, and because of Nelson's recurrent neck problems, further stated that he could not do a significant amount of looking up or working with his arms over his head. Dr. Kiel also limited Nelson to lifting no more than ten pounds and seldom lifting above mid chest.

At the end of December of 2006, Nelson began physical therapy with Melissa Roswold, P.T. Physical Therapist Roswold noted that Nelson had “significant left upper extremity symptoms” and “extensive cervical spine degeneration” that limits his “functional activities such as sitting, standing, and sleeping.” (AR vol. 3 at 73.) Despite attending twice weekly physical therapy throughout 2006 and into 2007, Nelson continued to struggle with neck pain.

Dr. Kiel then referred Nelson to Mark Moore, M.D., in occupational medicine, who met with Nelson on May 11, 2007. Dr. Moore concluded after an examination that Nelson should be subject to the following permanent restrictions:

He should have a 10-pound occasional lift restriction, should have a restriction for no repetitive motions of the neck, and absolutely no backward extension. Pushing and pulling should be limited to 25 pounds. . . . He can occasionally bend, squat, or twist, and crawling should be seldom. No lifting above mid chest.

(AR vol. 3 at 117-19.) In particular, according to Dr. Moore, Nelson was “not capable of doing his old job.” (AR vol. 3 at 117-19.)

During an appointment with Dr. Kiel in June of 2007, Nelson also reported that he could no longer work as a ceiling tile installer, and he would love to work at Central Ceiling in an administrative capacity, but management was not willing to offer him a position. During an October 18, 2007, appointment, Dr. Kiel reported that Nelson was “desperate and near tears” and that Nelson “clearly would like to return to work but physically cannot.” (AR vol. 3 at 142.)

A number of years later, in July of 2012, Dr. Kiel again saw Nelson, observing that his physical condition had deteriorated further between 2010 and 2012, and in a subsequent appointment on October 28, 2013, Dr. Kiel once again noted that Nelson's symptoms were much worse. Since conservative measures had obviously failed to relieve his pain, Nelson was deemed a candidate for surgery at that time. However, this could have entailed the removal the old anterior cervical plate and a new anterior cervical discectomy and fusion, and Nelson never underwent that surgery. According to Nelson, he turned down surgery after losing his job, although defendant disputes that joblessness played any role in his decision to forego the surgery.^[2] Regardless, Dr. Kiel concluded, “it does not appear that [Nelson] can achieve gainful employment and will likely have chronic neck pain even if he undergoes...