MEMORANDUM AND ORDER

EWING WERLEIN, Jr., District Judge.

Pending is Defendant's Motion for Summary Judgment (Document No. 17). After having considered the motion, response, reply, the applicable law, and the administrative record, the Court concludes as follows.

I. Background

Plaintiff Nicholas D. Brooks ("Plaintiff") brings this suit under the Employment and Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq., alleging that Defendant Ryder System, Inc. ("Defendant" or "RSI") wrongly denied him medical and wage replacement benefits and failed timely to respond to his requests for information.1

Until August 31, 2013, Plaintiff was employed as a truck driver by Ryder Integrated Logistics, Inc. ("RIL").2 RIL is a non-subscriber under the Texas Workers' Compensation Act, and participates in the Ryder Texas Occupational Injury Benefit Plan (the "Plan") to provide medical and wage replacement benefits to its employees.3 Defendant RSI is the plan administrator of the Plan, Gallagher Bassett Services, Inc. ("Gallagher Bassett") is the claims administrator, and PartnerSource, Inc. ("PartnerSource") is the appeals committee.4 Neither Gallagher Bassett nor PartnerSource is an affiliate or subsidiary of RIL or RSI.5

On July 26, 2013, Plaintiff slipped and fell off the end of his flatbed trailer, injuring his lower back and thumb.6 When emergency responders arrived, they found Plaintiff lying on the ground unable to move, complaining of "severe lower back pain and right thumb pain."7 Plaintiff was taken to Sweeny Community Hospital, where he reported severe pain and was initially unable to walk.8 Plaintiff was diagnosed with a dislocated thumb, which was reduced9 and splinted, and with lumbar strain and contusion.10 X-rays of Plaintiff's right thumb were "unremarkable," showing no bone or joint abnormality, joint spaces well preserved, and normal soft tissues.11 A CT scan of Plaintiff's cervical spine indicated no fracture or dislocation, disc spaces well preserved, and normal soft tissues.12 Plaintiff was discharged later that day.13

Plaintiff was examined at Concentra Medical Centers on July 29 and August 2, 2013, producing further assessments that his thumb had been sprained and dislocated and that his back was strained.14 Plaintiff was cleared to return to work with restrictions, including that he could not drive company vehicles, and was referred to an orthopedic specialist for further examination of his thumb injury.15

On August 8, Gallagher Bassett conducted a recorded phone interview of Plaintiff to discuss his claim, in which Plaintiff confirmed that he knew when his next follow-up appointment was, and Gallagher Bassett informed Plaintiff that he "must attend all your follow up appointment[s] as scheduled" and "if you miss too many appointments your claim can be denied."16 In a letter dated August 16, 2013, Gallagher Bassett, the claims administrator, notified Plaintiff that (1) he had missed his August 27, 2013 appointment with Dr. Dean Smith, who is an orthopedic specialist, (2) his appointment had been rescheduled to September 16, 2013, and (3) "any further failure to comply with any provision of the Plan, including the keeping of scheduled appointments with health care providers, will result in termination of your benefits claim under the Plan."17

On August 31, RIL terminated Plaintiff's employment.18 Prior to his termination, he had been suspended but was receiving regular pay continuously from the date of his injury.19

On September 16, Dr. Smith examined Plaintiff's thumb and recommended an MRI.20 Dr. Smith noted "[s]ignificant pain on exam," but that Plaintiff's tendons appeared intact, he was "able to initiate flexion and extension of the digits to the involved extremity," and there was no swelling.21 Five days later, Plaintiff's MRI exam revealed that everything was normal except for "[m]inimal osteoarthritis of the 1st MCP joint."22

By letter dated October 8, 2013, Gallagher Bassett, the claims administrator, notified Plaintiff of the partial denial of his Plan benefits, explaining that treatment of osteoarthritis is not covered under the Plan because it is a degenerative condition and not a work-related injury.23 Plaintiff appealed the decision a month later.24

Three days after Plaintiff's appeal, on November 12, Gallagher Bassett notified Plaintiff by letter that his claim was denied in full because Plaintiff had missed two scheduled appointments.25 In addition to the August 27 missed appointment, the letter noted that "our records indicate that you missed your October 24, 2013 appointment with the Approved Physician. The Nurse Case Manager and Dr. Dean Smith's office contacted you and left several voice mails in regards to your missed appointment but you failed to return their calls."26 Plaintiff responded by letter dated December 23, 2013, recounting his injuries and treatment and requesting full medical and wage replacement benefits.27 Plaintiff's appeal letter did not address his missed appointments.

PartnerSource, the appeals committee, referred Plaintiff's case to a peer review, which was performed by Dr. Gary N. Pamplin.28 Dr. Pamplin reviewed Plaintiff's medical records29 and concluded that based on the radiographic and MRI tests, Plaintiff suffered from degenerative joint disease, and

Dr. Pamplin further concluded that

Dr. Pamplin noted the possibility of "some degree of significant ligament injury to the metacarpal-phalangeal joint of the right thumb," and recommended further evaluation by a "board-certified orthopaedic hand surgeon specialist."32

After reviewing Plaintiff's appeal and medical records, PartnerSource on January 27, 2014, denied Plaintiff's appeal in full.33 PartnerSource stated that it was denying Plaintiff's appeal for continued medical benefits "because (1) the Plan specifically excludes the claimed injury to your right thumb as a `Non-Covered Injury;' and (2) you failed to comply with the Plan's requirement to attend all scheduled appointments with your medical providers," and that it was denying Plaintiff's appeal for wage replacement benefits because Plaintiff was paid for the time period while he was on suspension, and wage replacement benefits cease under the Plan upon termination.34

Plaintiff filed suit against Defendant RSI under 29 U.S.C. § 1132(a) and (c), alleging that he is entitled under the Plan to recover medical and wage replacement benefits, and that RSI failed to provide him with documents and records used in deciding his appeal within 30 days of his request as required by ERISA.35 Defendant moves for summary judgment, arguing that it properly denied Plaintiff benefits and that Plaintiff never requested documents from Defendant.36

II. Legal Standard

ERISA confers jurisdiction on federal courts to review benefit determinations by fiduciaries or plan administrators.37 See 29 U.S.C. § 1132(a)(1)(B). A plan claims administrator makes two general decisions when deciding whether to pay benefits: (1) finding the facts underlying the claim and (2) determining "whether those facts constitute a claim to be honored under the terms of the plan." Schadler v. Anthem Life Ins. Co., 147 F.3d 388, 394 (5th Cir. 1998) (quoting Pierre v. Conn. Gen. Life Ins. Co./Life Ins. Co. of N. Am., 932 F.2d 1552, 1557 (5th Cir. 1991)) (emphasis in original). The administrator's first decision, its fact finding, is always reviewed for abuse of discretion. Wade v. Hewlett-Packard Dev. Co. LP Short Term Disability Plan, 493 F.3d 533, 537 (5th Cir. 2007), abrogated on other grounds by Hardt v. Reliance Standard Life Ins. Co., 130 S.Ct. 2149 (2010). The second determination, the administrator's interpretation of the plan, is typically reviewed de novo, "[b]ut where, as here, a plan expressly confers discretion on the plan administrator to construe the plan's terms, the administrator's construction is reviewed for abuse of discretion." Id. at 537-38 (internal footnote omitted); see also Firestone Tire & Rubber Co. v. Bruch, 109 S.Ct. 948, 956-57 (1989). Because the Plan confers discretionary authority upon Gallagher Bassett and PartnerSource,38 their determinations are appropriately reviewed for an abuse of discretion.

When reviewing the administrator's second decision— interpretation and application of the plan language—for an abuse of discretion, the Fifth Circuit applies a two-step inquiry. Stone v. UNOCAL Termination Allowance Plan, 570 F.3d 252, 257 (5th Cir. 2009). First, the court examines whether the determination was legally correct; if so, there can be no abuse of discretion. Id. If not legally correct, then the court proceeds to step two to decide whether the determination was an abuse of discretion. Id.

An abuse of discretion occurs when "the decision is not based on evidence, even if disputable, that clearly supports the basis for its denial." Holland v. Int'l Paper Co. Ret. Plan, 576 F.3d 240, 246 (5th Cir. 2009) (internal quotation marks and citation omitted). Such an abuse occurs "only where the plan administrator acted arbitrarily or capriciously," and "[a] decision is arbitrary only if made without a rational connection between the known facts and the decision or between the found facts and the evidence." Id. (citing Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 214-15 (5th Cir. 1999)) (internal quotation marks omitted). The decision need only "fall somewhere on a continuum of reasonableness—even if on the low end." Corry v. Liberty Life Assur. Co. of Boston, 499 F.3d 389, 398 (5th Cir. 2007) (quoting Vega v. Nat'l Life Ins. Servs., Inc., 188 F.3d 287, 297 (5th Cir. 1999) (en banc), overruled on other grounds by Metro. Life Ins. Co. v. Glenn, 128 S.Ct. 2343 (2008)). The district court, in reviewing the administrator's decision, should consider only the evidence that was before the administrator, assuming that both parties had the opportunity to present facts to the administrator. See Meditrust, 168 F.3d at 215.

III. Analysis

A. Timeliness of Plaintiff's Response

As an initial matter, Defendant argues in its reply that the Court should deem its motion for summary judgment unopposed because Plaintiff did not file his response until 18 days after the deadline for responding, and neither sought leave to file the response late nor provided any explanation for his failure to meet the deadline.39 See Local Rule 7.4. Although the Court expresses its disapprobation for Plaintiff's conduct in the foregoing respects, in this instance the Court was unable earlier to consider Defendant's motion and, because it is generally preferable to decide cases on the merits, the Court has considered Plaintiff's late-filed response.

B. Plan Coverage for Treatment of Plaintiff's Thumb

The Plan covers medical treatment of injuries that are "incurred in, and directly and solely result from, the Course and Scope of Employment."40 The Plan expressly excludes coverage of osteoarthritis and degenerative joint disease:

In finally denying Plaintiff medical benefits related to treatment of his thumb, PartnerSource relied on the MRI exam of Plaintiff's thumb, which revealed minimal osteoarthritis and no other discernible injury; Dr. Smith's conclusion that Plaintiff was experiencing early signs of degenerative joint disease; and Dr. Pamplin's conclusion that "the natural and progressive course of this pre-existing disease of life was neither enhanced, accelerated, altered, or aggravated in any manner by the reported occupational event of 7/26/13."42 This medical evidence, particularly in the absence of specific medical evidence demonstrating any enduring non-degenerative injury, establishes that Defendant's denial of benefits for Plaintiff's thumb was not arbitrary and capricious. See Corry, 499 F.3d at 398 ("Substantial evidence [sufficient to establish no abuse of discretion] is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.") (citation omitted). Accordingly, Defendant did not abuse its discretion in determining that Plaintiff's thumb pain was caused by a degenerative condition which was not a covered injury under the Plan.

C. Denial of Benefits for Failure to Attend Scheduled Appointments

The Plan provides that

It is undisputed that Plaintiff missed scheduled medical appointments on August 27, 2013 and October 24, 2013, and that Plaintiff received a written warning after the first missed appointment informing him that further missed appointments "will result in a termination of your benefits claim under the Plan."44

Plaintiff argues, however, that he never received the phone calls regarding his scheduled appointments because Gallagher Bassett was using his former work cell phone number to contact him, and that therefore "[t]he plan administrator abused its discretion in finding that Brooks was noncompliant in keeping his medical appointments when he was not being properly informed of the scheduled appointments."45 Nevertheless, when Plaintiff was notified of the termination of his benefits on the basis of his missed appointments, he did not make this argument as part of his appeal. "Assuming that both parties were given an opportunity to present facts to the administrator, our review of factual determinations is confined to the record available to the administrator." Meditrust, 168 F.3d at 215. Plaintiff's December 23, 2013 letter to PartnerSource provided "pertinent medical records" but made no reference whatever to his missed appointments and offered no excuse for such.46 There is no evidence in the record that Plaintiff ever provided to PartnerSource as part of his appeal any evidence or argument regarding the allegedly wrong phone number or any other excuse for having missed two medical appointments, despite having had the opportunity to do so. Accordingly, PartnerSource did not abuse its discretion in finding on the record before it that Plaintiff had missed two appointments and that his medical benefits should therefore be terminated based on the Plan's requirements.

D. Denial of Wage Replacement Benefits

The Plan provides that wage replacement benefits "shall continue until the earliest of . . . (4) termination of both the Participant's status as a Covered Employee and all other employment of the Participant with an Employer," subject to certain exceptions that are inapplicable here.47 "`Covered Employee' means an Employee whose employment with the Employer is principally located within the State of Texas."48

It is undisputed that RIL terminated Plaintiff on August 31, 2013.49 The uncontroverted summary judgment evidence is that Plaintiff received his regular wages from the time of his injury through his termination, while he was suspended.50 Plaintiff argues, however, that "[t]he plan administrator abused its discretion in denying wage replacement benefits after August 31, 2013" because RIL had wrongfully terminated Plaintiff.51 Plaintiff has filed a separate suit in this Court challenging his termination,52 and argues that if he was wrongfully terminated, "he would be entitled to wage replacement after August 31, 2013."53

Plaintiff has not cited to any Plan provision or any legal authority to establish that he would be entitled to wage replacement benefits under the Plan if his termination was wrongful. Instead, under the plain language of the Plan quoted above, Plaintiff's entitlement to wage replacement benefits only lasted until termination of his employment. Accordingly, Defendant correctly interpreted the Plan and did not abuse its discretion when it denied Plaintiff's claim for wage replacement benefits following his termination on August 31, 2013.

E. Plaintiff's Request for Records

Finally, Plaintiff argues that he is entitled to recover penalties under 29 U.S.C. § 1132(c)(1), which provides:

Plaintiff argues that he "sent a request for all documents considered in his appeal by letter dated February 10, 2014 and sent by certified mail on February 14, 2014 to Partner Source," which was the appeals committee, but that "[a]fter receiving the request for the administrative record, Partner Source failed to submit the records until contacted by the U.S. Department of Labor."54

Defendant disputes that Plaintiff ever sent such a request to PartnerSource.55 This dispute is immaterial, however, because—even if so—the uncontroverted summary judgment evidence is that PartnerSource never transmitted Plaintiff's request for documents to Defendant itself.56 Moreover, Plaintiff does not allege—much less produce evidence—that he ever sent any request for documents to Defendant RSI. Plaintiff cites to no authority suggesting that Defendant could be held liable under Section 1132(c)(1) for "fail[ing] or refus[ing] to comply with a request" when it never received such a request.57 Accordingly, Defendant is entitled to summary judgment on Plaintiff's claim for statutory penalties against Defendant under 29 U.S.C. § 1132(c)(1).

IV. Order

Based on the foregoing, it is

ORDERED that Defendant's Motion for Summary Judgment (Document No. 17) is GRANTED, and Plaintiff's claims are dismissed with prejudice. Defendant's counterclaim for attorneys' fees and costs remains for adjudication.

The Clerk will enter this Order, providing a correct copy to all counsel of record.