JAMES L. GRAHAM, District Judge.
This is an action brought pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §1001,
A plan administrator's denial of benefits is reviewed de novo unless the benefit plan specifically gives the plan administrator discretionary authority to determine eligibility for benefits or to construe the terms of the plan.
Plaintiff contends that any financial conflict of interest on the part of the fund administrator should be considered in reviewing the decision to deny benefits. In applying the arbitrary and capricious standard, a court will weigh as a factor whether a conflict of interest existed on the part of the decision-maker in determining whether there was an abuse of discretion.
In this case, the Plan is a multi-employer plan which is funded by employer contributions, and all contributions and Plan assets are held in trust.
In 2006, plaintiff began receiving an early unreduced retirement pension benefit based on disability after he was diagnosed with lymphoma in 2005. By letter dated March 18, 2011, Ray Orrand, the Plan administrator, advised plaintiff that "it has been brought to our attention that you may be working full time as an operating engineer while receiving benefits from Local 18." Orrand asked plaintiff to submit his 2010 tax return "[i]n order to verify that you are not working in excess of 40 hours per month while receiving pension benefits[.]" Doc. 26-1, p. 1. Plaintiff submitted his 2010 federal and Ohio tax returns and W-2 forms. Doc. 26-1, pp. 3-14. On his individual tax return, plaintiff claimed $761 in business income, and identified his occupation as "DRIVER." Doc. 26-1, pp. 4-5. On the schedule for profit or loss from business, he specified that his principal business was "FARM HAND" and claimed expenses in the amount of $1,411 for gravel and limestone. Doc. 26-1, pp. 6-7.
By letter dated April 18, 2011, Orrand informed plaintiff that after "reviewing your job classifications on the [tax returns] submitted, farm hand and driver, it is my decision that you are no longer qualified to receive disability pension benefits" and that plaintiff's benefits would "cease effective May 1, 2011." Doc. 26-1, p. 15. In a letter dated May 12, 2011, to Orrand, plaintiff's counsel referenced the April 18, 2011, letter "terminating [plaintiff's] pension benefits" and stated that plaintiff was appealing the denial of benefits under the Plan. AR 38. Counsel further stated that in 2010, plaintiff "was self employed as a driver/farm hand. His duties in these positions consisted of driving a trailer with hay and driving a dump truck with gravel." However, counsel claimed that plaintiff "has never operated any machinery even remotely similar to the work [he] performed as an operating engineer." AR 39. By letter dated June 2, 2011, counsel asked Orrand whether plaintiff's benefits had been restored, as he had received a benefits payment for June of 2011. Doc. 26-1, p. 16. By letter dated June 8, 2011, Orrand informed counsel that plaintiff had not appealed the suspension of his benefits, and that the June payment was made in error and should be returned. Doc. 26-1, p. 18. Counsel responded to Orrand by letter dated June 14, 2011, and stated that plaintiff had appealed the denial of his benefits, referencing counsel's letter of May 12, 2011, and that plaintiff "requests a review that the suspension/termination of his benefits be repealed[.]" Doc. 26-1, p. 19. However, before any appeal was submitted to the trustees, Orrand notified counsel by letter dated June 24, 2011, that "[b]ased on current language contained in the Ohio Operating Engineers Pension Fund, Mr. Willard's pension benefits have been reinstated at this time." Doc. 26-1, p. 27.
On July 20, 2011, plaintiff was examined by Dr. Robert F. Shadel, M.D., pursuant to the terms of the Ohio Operating Engineers Health and Welfare Plan, from which plaintiff was also receiving benefits. In his report dated July 21, 2011, Dr. Shadel noted that plaintiff "did not work as a crane operator after 2005 but worked as an operating engineer." AR 33. Dr. Shadel further wrote that plaintiff stated that "there was some upset with him working as an operating engineer and he believes that is why he has been sent in for this examination today." AR 33.
By letter dated August 15, 2011, Orrand advised plaintiff that his disability retirement benefit under the Plan was "suspended as of September 1, 2011 ... pursuant to Article 6, Section 6.06 of the Plan." AR 5. The letter further stated:
AR 5. The letter went on to advise plaintiff of his right to appeal the adverse decision to the trustees. AR 5-7. The administrative record includes an abstract driver record indicating that plaintiff had a Class A commercial driver's license issued on April 1, 2011, with endorsements for "MOTORCYCLE, TANK VHCL, DBL/TRP/TL" (AR 8); photographs of plaintiff operating a backhoe
By letter dated October 14, 2011, plaintiff's counsel informed Orrand that plaintiff was appealing the Plan's decision suspending benefits. Plaintiff submitted tax returns and W-2 forms for the years 2004 through 2010, which reflected income from Kokosing Construction from 2004 to 2006, and income from C & L Erectors and Riggers in the amount of: $18,171.20 in 2007; $4,157.73 in 2008; and $1,170.00 in 2009. AR 40-58. By letter dated November 11, 2011, plaintiff's counsel was advised that plaintiff's appeal was scheduled to be heard at the trustees' meeting on January 30, 2012. This letter further stated that plaintiff and counsel could present plaintiff's opinion at the meeting and submit a position statement along with authorities or additional evidence. AR 61.
Plaintiff's counsel informed Thomas Tarpy, counsel for the Plan, by letter in January of 2012 that he and plaintiff would not be attending the trustees' meeting. AR 91. In this letter, counsel stated that plaintiff denied working as an operating engineer after 2005, and argued that plaintiff was still disabled. AR 92-94. Counsel also submitted several medical records, including: a December 22, 2009, report from Dr. Robert Mueller concerning surgery on plaintiff's right arm (Ex. A); August 9, 2011, and August 23, 2011, reports from Dr. Brian Jenkins, who treated plaintiff for low back pain (Exs. B and D); a July 21, 2011, radiology report from Dr. John Leach, diagnosing plaintiff as having lumbar spine degenerative disc disease (Ex. C); an August 11, 2011, report from Dr. James Sardo concerning plaintiff's back pain (Ex. E); a letter dated August 29, 2011 from Dr. Jeanna Knoble expressing concern about plaintiff returning to work in light of his lymphoma (Ex. F); a September 5, 2008 report from Dr. Praveen Giri, who saw plaintiff for numbness and tingling in his hands (Ex. H); a note from Dr. James Mosley stating that plaintiff has persistent dizziness and problems with equilibrium (Ex. G) and Dr. Mosley's September 26, 2011, report regarding his treatment of plaintiff for back pain (Ex. I). AR 96-114. Dr. Mosley noted in an addendum to his September report that plaintiff had called to state that there were some inaccuracies in the past medical history and social history portion of the treatment notes for September 22, 2011, which contained information taken from the medical records of Dr. Jenkins, plaintiff's primary physician. AR 113-114. The "Social History" section of Dr. Mosley's notes originally stated that plaintiff was a "former crane operator for Kokosing; self employed part-time dump truck operator." AR 110. The notes were amended to state that plaintiff was a "former crane operator and truck operator for Kokosing, now disabled." AR 114.
The administrative record also includes a WebTAP investigative report from Joshua Nehis, an investigator with InfoQuest Investigative Services, concerning a background investigation conducted on plaintiff on November 28, 2011. The report indicated that plaintiff stated on his Facebook profile that he works for Willard Gravel. The phone number provided for the business was the same number registered to plaintiff's home address and the same number provided by plaintiff on his 2010 tax return. AR 68, 234. The report also stated that the number for Willard Gravel was found in various online phone books, the 2010 Hocking Valley Advertiser, and the 2011 Ross County Advertiser. AR 69-70. The record includes copies of advertisements for Willard Gravel contained in the April 4, 2010, Hocking Valley Advertiser and the February 13, 2011, Pickaway County Advertiser. AR 117, 128. The InfoQuest report also included a traffic crash witness statement prepared by Trooper Ward of the Ohio State Highway Patrol following plaintiff's motorcycle accident on July 12, 2011, in which plaintiff stated that at the time of the accident, he had just looked at a driveway estimate job. AR 78.
The record contains a report from InfoQuest dated December 23, 2011, regarding the surveillance of plaintiff's residence. The report stated that plaintiff has a dump truck registered in his name. AR 62. On December 12, 2011, a dump truck arrived at plaintiff's residence and dumped a load of gravel near the pole barn. Plaintiff's registered dump truck arrived around 1:45 p.m., but it was not clear who was driving the truck. AR 63. On December 14, 2011, the investigator observed plaintiff's dump truck parked in the driveway with a trailer attached containing a skid steer, and he also observed a backhoe near the pole barn. Plaintiff left his residence driving the dump truck at 8:28 a.m. and was followed to Melvin Stone, a limestone company in Chillicothe, where he obtained a load of stone. Plaintiff returned to his residence and dumped the load of stone. Plaintiff then returned to Chillicothe and went to Melvin Stone for another load of gravel. Plaintiff proceeded to a residence on State Route 56, where he dumped the gravel in the driveway. He got out of the truck and raked the driveway before leaving. Plaintiff then drove back to his residence. AR 63-66. A copy of the video taken on December 14, 2011, is included in the record.
In an e-mail dated January 26, 2012, InfoQuest investigator Michael Doody reported that he spoke that day with Moni, a scale clerk at Melvin Stone, concerning plaintiff. AR 139. An audio recording of this phone interview is included in the record.
The record also includes an audio recording of a conversation on January 27, 2012, between the InfoQuest investigator and Dr. Douglas Paul, whose residence plaintiff visited on December 14, 2011, during the video surveillance.
On February 3, 2012, following the trustees' meeting on January 30, 2012, Plan Administrator Orrand, on behalf of the trustees, notified plaintiff that the trustees had decided to uphold the suspension of his pension benefits. Orrand referred to Plan §6.06(a), which provides that "[a]ny monthly benefit otherwise payable under this Plan shall be permanently forfeited for any month in which a Participant or former Participant is credited with 41 or more hours of service in that month in the geographic jurisdiction of the Union in a trade or craft in which the Participant was employed while a Participant in the Plan." Orrand also quoted from Plan §6.06(f), which provides:
AR 170.
Orrand further stated that plaintiff's benefits were suspended in August, 2011, based on evidence indicating that plaintiff was "actively working in the trade," including: statements allegedly made by plaintiff during the July 21, 2001, physical examination; plaintiff's 2010 tax return, which listed plaintiff's occupation as a "driver;" plaintiff's current commercial driver's license; and photographs of plaintiff operating a front loader. AR 143. The letter then discussed additional evidence obtained while the appeal was pending "confirming that you are actively working in Local 18's jurisdiction as an operating engineer," including: the December, 2011, video which showed plaintiff picking up, hauling and delivering gravel to a residence and resurfacing the driveway; advertisements from 2010 and 2011 for Willard Gravel offering driveway, bank run, top soil, fill material and mobile home transport and set-up services; the fact that the number given for Willard Gravel was the number included by plaintiff on his 2010 tax return; and plaintiff's statements to the accident investigator on July 12, 2011, that he was on his way back from a driveway estimate job prior to the accident. AR 144. Orrand concluded, "All of this evidence supports the Plan's presumption that you are working more than 41 hours a month as an operating engineer." AR 144.
Orrand noted the arguments made in plaintiff's position paper, including plaintiff's allegations that Dr. Shadel's notation that he was working as an operating engineer was a fabrication, and that the Plan was previously aware that he had a commercial driver's license and that he did "driving work." He also noted plaintiff's denial that he had worked as an operating engineer since 2005. AR 144. Orrand referred to the medical reports submitted by plaintiff, including the opinion of Dr. Jenkins that he could not see how plaintiff could be expected to operate heavy machinery again. Orrand then stated, "The issue before the Board, however, was not whether you are still disabled, but rather whether it was reasonable for the Plan to presume you were working more than 41 hours a month as an operating engineer." AR 114.
Orrand goes on to state that the Board agreed with the Plan's decision to suspend plaintiff's benefits based on: 1) plaintiff's statements to Dr. Shadel; 2) photos of plaintiff operating heavy equipment; 3) the 2010 tax return listing plaintiff's occupation as "driver;" 4) plaintiff's commercial driver's license; and 5) W-2 forms from 2007-2009 showing that plaintiff received income from C&L Erectors & Riggers, a business located in Laurelville, Ohio. Orrand then observed:
AR 144-145. Orrand then noted the "[p]articularly troubling" notation in Dr. Mosley's September 26, 2011, report that plaintiff called his office to say that the statement that plaintiff was a self-employed part-time dump truck operator was inaccurate, after which Dr. Mosley revised his report to state that plaintiff was a former crane operator and truck operator for Kokosing, now disabled. Orrand commented, "Your action in having this report revised indicates an attempt on your part to misrepresent your current employment status to both your physicians and to the Plan." AR 145.
Plaintiff argues that the Plan's decision suspending his benefits did not comply with ERISA's notice requirements. Under 29 U.S.C. §1133, an employee benefit plan must:
29 U.S.C. §1133. Similarly, the Department of Labor regulations require that a notification letter contains: (1) the specific reason(s) for the adverse determination; (2) reference to the specific plan provisions on which the determination is based; (3) a description of any additional materials necessary to perfect a claim; and (4) a description of the plan's review procedures, the time limits applicable to such procedures, and the claimant's right to bring a civil action following an adverse benefit determination or review. 29 C.F.R. §2560.503-1(g).
The essential purposes of the statute are: (1) to notify the claimant of the specific reasons for a claim denial; and (2) to provide the claimant an opportunity to have that decision reviewed by the fiduciary.
The August 15, 2011, notification letter complied with the requirements of §1133. The letter noted the specific Plan provision, §6.06(f), which was relied upon as the basis for the suspension of benefits, and quoted the relevant language from that provision. The letter explained the evidence relied upon by the Plan in concluding that plaintiff was in violation of that section of the Plan. The letter also advised plaintiff of his right to appeal the decision, specified the time limits for filing an appeal, and advised him of his right to present additional evidence. AR 5. Plaintiff was advised that the appeal would be heard at the next quarterly meeting of the trustees, and that he had a right to bring a civil action following the completion of the appeals process. AR 6. Attached to the letter is a copy of the Plan's appellate procedure. AR 7. The October 14, 2011, letter of plaintiff's counsel to Orrand also indicates that plaintiff understood the reason for the suspension of his benefits.
Plaintiff also argues that he was not afforded a fair review process because the trustees considered evidence which was submitted following the August 15, 2011, decision of the Plan denying benefits, including video showing plaintiff hauling gravel and resurfacing a driveway, audio of interviews with an employee at Melvin Stone and plaintiff's customer, Dr. Paul, and advertisements for plaintiff's gravel business.
In
Under 29 C.F.R. §2560.503-1(h)(2)(iii), an administrator on appeal is required to:
29 C.F.R. §2560.503-1(h)(2)(iii)(emphasis supplied). Under paragraph (m)(8), a document, record or other information is considered "relevant" if it was "relied upon in making the benefit determination" or "submitted, considered, or generated in the course of making the benefit determination." 29 C.F.R. §2560.503-1(m)(8). The court in
A different regulation permits access to documents following a adverse benefit determination on review or appeal. Section 2560.503-2(i)(5) provides: "In the case of an adverse benefit determination
The court in
A separate issue is presented by the claimant's duty under §2560.503-1(h)(2)(iii) to request documents. In
In the instant case, plaintiff was informed in the August 15, 2011, letter, that "upon request, the Plan will provide you, free of charge, with a copy of the documents, records, or other information that are relevant to your appeal." AR 6. No request by plaintiff for documents appears in the record. No request to inspect either the administrative record before the Plan administrator or new documents received by the trustees during the appeal was included in the appeal letter of October 14, 2011.
The court in
The record fails to show that plaintiff was prejudiced by the trustees' consideration of the new evidence. That evidence was more of the same type of evidence already before the Plan administrator. The new evidence, such as the video of plaintiff picking up and delivering gravel and the advertisements for his business, concerned matters with which plaintiff had personal involvement and knowledge. Plaintiff does not deny that he drove a dump truck with gravel, as depicted in the video. In fact, plaintiff stated in his motion that the Plan had previously been given documents "on two occasions that Mr. Willard was employed as a driver/farm hand and even specifically stated he hauled gravel" and that plaintiff "does not deny" that he "hauls gravel in a dump truck from time to time." Doc. 30, pp. 11, 13;
In his motion, plaintiff does not contest the accuracy of the new evidence. Plaintiff does not contend that he would have challenged the veracity of this evidence if given the opportunity during the appeals process. In fact, the nature of the new evidence would have made it difficult to refute. It includes video footage of plaintiff driving a dump truck, standing outside the truck at a gas station during the trip, dumping gravel on a driveway and raking it, then driving the truck into his own driveway; audio recordings of the investigator's conversations with Dr. Paul and a clerk at Melvin Stone; and newspaper advertisements for Willard Gravel bearing the same phone number shown on plaintiff's 2010 tax returns.
The court concludes that the receipt by the trustees of new evidence during the appeals process did not deprive plaintiff of a full and fair review of his claim on appeal.
A plan administrator "may not initially deny benefits for one reason, and then turn around and deny benefits for an entirely different reason, after an administrative appeal, without affording the claimant an opportunity to respond to the second, determinative reason for the denial of benefits."
The August 15, 2011, decision of the Plan referred to Plan §6.06(f). AR 5. The administrator specifically noted §6.06(f)'s language that the administrator shall "notify the Fund Administrator of certain details of any employment after such benefits have commenced" and "shall suspend pension benefits upon learning of subsequent potential service of 41 Hours of Service or more for an employer within the jurisdiction of the union." AR 05. The Plan noted that plaintiff had made a statement during his disability examination that he had worked as an operating engineer after 2005; that the Plan had received documents indicating that plaintiff had worked as a dump truck driver hauling gravel in 2010; and that plaintiff had a current commercial driver's license. AR 5. The Plan concluded that plaintiff was in violation of §6.06(f).
In the February 3, 2012, decision, the trustees began by quoting from Plan §6.06(a). That section provides, "Any monthly benefit otherwise payable under this Plan shall be permanently forfeited for any month in which a Participant or former Participant is credited with 41 or more hours of service in that month in the geographic jurisdiction of the Union in a trade or craft in which the Participant was employed[.]" AR 143. Basically, §6.06(a) addresses the issue of whether a participant has any property rights in suspended benefits, whereas §6.06(f) addresses the procedural requirements for a suspension of benefits. However, the issue of forfeited property rights was not before the trustees, and they made no findings on that subject.
Rather, the trustees' decision reviewing the suspension of benefits by the Plan was clearly based on §6.06(f), the same provision relied upon by Orrand in the initial notification letter suspending plaintiff's benefits. The trustees' decision also quoted from the notification requirement and the suspension of benefits provision in §6.06(f). AR 143. The trustees' decision noted that the "evidence supports the Plan's presumption that you are working more than 41 hours a month as an operating engineer[,]" a reference to the presumption afforded the Plan under §6.06(f). AR 143-144. The trustees' decision also observed that the issue before the Board was "whether it was reasonable for the Plan to presume you were working more than 41 hours a month as an operating engineer." AR 144. The Plan suspended plaintiff's benefits due to evidence that plaintiff was potentially working more than 41 hours per month working as a dump truck driver. AR 5. The trustees on appeal concluded that the evidence "supports the Fund Administrator's decision to suspend your pension benefits." AR 144. This was not a case where the trustees on appeal relied on an entirely different reason for denying benefits.
Review under the arbitrary and capricious standard is "extremely deferential."
Where the plan grants the administrator discretionary authority to construe and interpret the provisions of the plan, the administrator is entitled to "great leeway in interpreting ambiguous terms."
Under §6.06(f), a participant receiving benefits "must notify the Fund Administrator of certain details of
Section 6.06(f) states that the details provided by the participant "shall include the name and address of the employer, work site location, date employment commenced, nature of employment, actual hours worked by month and expected monthly hours." Such a plan provision is authorized under 29 C.F.R. §2530.203-3(b)(5), entitled "Verification," which provides that "[a] plan may provide that an employee must notify the plan of any employment" and "may request from an employee access to reasonable information for the purpose of verifying such employment." 29 C.F.R. §2530.203-3(b)(5). The purpose of this regulation is to permit an employer to obtain "factual information sufficient to establish that any employment does not constitute" the type of employment under 29 C.F.R. §2530.203-3(c) which would render pension benefits subject to forfeiture. §2530.203-3(b)(5).
Plaintiff provided copies of his 2010 tax returns in response to Orrand's letter of March 18, 2011. Those returns included plaintiff's name and address, along with a Schedule C for profit or loss from business which stated that plaintiff was a "FARM HAND." AR 236. The federal 2010 tax return also listed plaintiff's occupation as "DRIVER." AR 235. Even assuming that the administrator could conclude from these documents that plaintiff was self-employed in his own business as a "FARM HAND" and "DRIVER," the tax documents provide no information concerning the work site location, date employment commenced, the precise nature of the employment, actual hours worked by month, or expected monthly hours. Some additional information was provided by plaintiff's counsel in his letter of May 12, 2011, in which he stated that plaintiff was "self employed as a driver/farm hand. His duties in these positions consisted of driving a trailer with hay and driving a dump truck with gravel." AR 252. However, this additional information likewise falls short of providing all of the "details" required under §6.06(f), most critically, the actual number of hours he worked and his expected monthly hours, information which is highly relevant to the suspension of benefits clause. It is obvious from the plain language of §6.06(f) that the information provided by plaintiff to the Plan was not sufficient to satisfy the notice requirements of that section, and the Plan administrator was justified in proceeding to decide if a suspension of benefits was warranted.
Plaintiff argues that the decision of the trustees affirming the suspension of benefits was arbitrary and capricious in light of the June 24, 2011, decision reinstating his benefits. Although the Plan's letter of April 18, 2011, stated that it was in regard to "Suspension of Pension Benefits", neither that letter nor the June 24th letter made any reference to §6.06(f). Rather, the April 18th letter stated that plaintiff was "no longer qualified to receive disability pension benefits" and that plaintiff's benefits "will cease effective May 1, 2011." AR 245. The letter of June 24, 2011, informed plaintiff that "[b]ased on current language contained in the Ohio Operating Engineers Pension Fund, Mr. Willard's pension benefits have been reinstated at this time." AR 257. This language indicates that Orrand reinstated plaintiff's benefits based upon his review of Plan terms.
The terms of the Plan support this conclusion. Although §6.06(f) gives the plan administrator the authority to suspend pension benefits on the ground that plaintiff had worked for "41 Hours of Service or more for an employer within the jurisdiction of the Union," that section does not permanently disqualify a participant from receiving benefits. Under Plan §6.06(b), "[b]enefits shall be payable again after the Participant notifies the Fund Administrator in writing as to the first calendar month in which the Participant did not engage in 41 or more hours of service." AR 169. Based on this language, Orrand may have concluded that the April 18th notice stating that plaintiff was "no longer qualified to receive disability pension benefits" and that his benefits would "cease" overstated his authority under the Plan.
The June 24th letter contains no language suggesting that Orrand had concluded that the evidence was insufficient to support a finding that plaintiff was self-employed for 41 hours per month in his gravel business. Even if such a conclusion could be inferred from that notice, it would not conflict with the Plan's subsequent decision to suspend benefits. When the Plan suspended plaintiff's benefits in August 15, 2011, it had additional evidence before it, namely, the statements credited to plaintiff by Dr. Shadel that plaintiff was working as an operating engineer, the record of plaintiff's current commercial driver's license, and photographs of plaintiff operating heavy equipment taken in March of 2011. The record fails to demonstrate that the Plan's August 15, 2011, decision suspending benefits conflicted with the earlier reinstatement of benefits on June 24, 2011.
Plaintiff also argues that the trustees acted arbitrarily and capriciously used the term "operating engineer" in place of the language "trade or craft" found in §6.06(a) of the Plan. Again, that section provides for the forfeiture of benefits for any month in which a participant "is credited with 41 or more hours of service in that month in the geographic jurisdiction of the Union in a trade or craft in which the Participant was employed while a Participant in the Plan." AR 169. Plaintiff essentially argues that in determining whether he had "subsequent potential service of 41 Hours of Service or more for an employer" under the benefits suspension provision of §6.06(f), the Plan and the trustees were also required to incorporate the language "trade or craft in which the Participant was employed" found in §6.06(a) as an additional requirement under §6.06(f). Advocating a narrow interpretation of the phrase "trade or craft," plaintiff further argues that since he was formerly employed in the "trade or craft" of crane operator, the finding of the Plan that he was working as an "operating engineer" was not sufficient to authorize a suspension of benefits under §6.06(f).
The court notes that the language of §6.06(f), the procedural vehicle for the Plan's decision in this case, is broader than the language of §6.06(a). Subsection (f) makes no reference to "trade or craft." Rather, it provides that participants receiving benefits "must notify the fund Administrator of certain details of
In short, the trustees were not required to determine whether plaintiff's gravel-hauling business fell within the "trade or craft" language found in §6.06(a) in deciding whether plaintiff complied with the notice requirements of §6.06(f) or whether the Plan acted properly in suspending plaintiff's benefits under §6.06(f). There was language in the trustees' decision, which may be regarded as
Even assuming that a §6.06(f) suspension of benefits also requires addressing the §6.06(a) "trade or craft" issue, and even assuming that the trustees' letter actually decided that issue, their interpretation of the Plan language was not arbitrary and capricious. As noted above, the plan administrator is entitled to "great leeway in interpreting ambiguous terms."
Plaintiff argues that no evidence has been submitted to support the trustees' conclusion that his work as a dump truck driver and operating a backhoe constituted working in the same "trade or craft" in which he was previously employed. However, because the Board of Trustees is composed of both employer and union representatives, it is reasonable to assume that the trustees would be familiar with what kinds of positions would constitute the "trade or craft" within their industry. In addition, the trustees did have before them Dr. Mosley's treatment records dated September 26, 2011, which reflect that plaintiff was a "former crane operator and truck operator for Kokosing." This patient background information was added to Dr. Mosley's records following a phone call from plaintiff. AR 114, 145. Therefore, even if the words "trade or craft" in §6.06(a) must be narrowly construed, as plaintiff suggests, to include only the specific work previously performed by plaintiff, the trustees had evidence before them that plaintiff was previously engaged in the "trade or craft" of truck driver prior to receiving disability pension benefits.
Plaintiff also argues that the evidence was insufficient to support the suspension of his benefits. Section 6.06(f) requires the administrator to suspend pension benefits "upon learning of subsequent potential service of 41 Hours of Service or more for an employer within the jurisdiction of the Union unless it is unreasonable under the circumstances for the Fund Administrator to Presume that the Participant was engaged in such service." AR 170. This provision only demands a finding of the "potential" for 41 hours of service in a month. The evidence before the Plan and the trustees, discussed above in the court's summary of the administrative record, was sufficient to meet this standard.
Plaintiff argues that his 2010 tax returns, which showed minimal income from sources other than his pension benefits, and the surveillance video, which only documented his activities for a few hours, fail to support the Plan's conclusion that he was working at least 41 hours in one month as an operating engineer. However, the Plan was not required to accept the income figures plaintiff reported on his tax returns as being accurate, particularly in light of the other evidence the Plan had which indicated that plaintiff had been actively operating a gravel business since at least 2010. Further, the fact that the surveillance video, which showed plaintiff driving a dump truck and applying gravel to a driveway, encompassed only a representative sample of plaintiff's business activities, does not preclude a finding that there was a "potential" that plaintiff worked in his business at least 41 hours per month.
The court finds that the Plan and the trustees have offered "an explanation based on substantial evidence that results from a deliberate and principled reasoning process[,]"
The court concludes that the decision of the Plan administrator suspending plaintiff's benefits and the trustees' decision upholding that suspension were not arbitrary and capricious. The trustees' decision was rational and based upon substantial evidence. Plaintiff's motion for judgment on the administrative record (Doc. 30) is denied. Defendants' motion for judgment on the administrative record (Doc. 29) is granted. The clerk shall enter judgment on the administrative record in favor of the Ohio Operating Engineers Pension Plan and the Ohio Operating Engineers Pension Plan Board of Trustees.
