The opinion of the court was delivered by: Bumb, United States District Judge:
[NOT FOR PUBLICATION] [Docket Nos. 10 and 11]
Robert S. Conrad, Sr. ("Plaintiff") brought suit against the Wachovia Group Long Term Disability Plan*fn1 ("LTD Plan" or "the Plan" or "Defendant") pursuant to the Employee Retirement Income Security Act ("ERISA"), seeking recovery of benefits under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). Plaintiff and the Plan both move for summary judgment.
On September 21, 2010, the Court issued an Opinion wherein Plaintiff's motion was denied, without prejudice, and Defendant's motion for summary judgment was granted, in part, and denied in part, without prejudice. The Court ordered supplemental briefing on two issues: whether or not the Plan was presented with evidence that Plaintiff experienced Intermittent Chronic Disability between the denial of the 2003 claim and the finding of disability in 2004; and whether Plaintiff still alleges a claim for damages under ERISA § 502(c).
Plaintiff was a commissioned securities broker for Wachovia Corporation
("Wachovia") who participated in Wachovia's disability plan. (Plaintiff's Statement of Undisputed Facts ("Pl. SOF") ¶ 1; Defendant's Statement of Undisputed Facts ("Def. SOF") ¶¶ 1-2.) The Plan provided for disability benefits after the end of an eight-day Elimination Period, which could be satisfied by eight consecutive absences due to disability or eight non-consecutive absences due to related chronic symptoms. (Def. SOF ¶¶ 7, 15-18; Pl. SOF ¶¶ 15 - 18.) Once the Elimination Period is satisfied benefits are calculated as, inter alia, a percentage of pre-disability income, known as Benefits Eligible Compensation ("BEC").
In November 2003, Plaintiff was hospitalized for a period of five days, being admitted on November 24 and discharged on November 28, for a cluster of symptoms. (Pl. SOF ¶¶ 3-4; Def. Resp. SOF ¶¶ 3-4; Def. SOF ¶ 12.) Plaintiff submitted a claim for disability benefits in December 2003, which was denied because Plaintiff had not missed eight consecutive days of work. (Pl. SOF ¶¶ 11-12; Def. Resp. SOF ¶¶ 11-13.) Plaintiff admits receiving a telephone call that he would not qualify "so [he] dropped [his claim]". Pl. SOF ¶¶ 12, 127, Ex. 4; Def. SOF ¶ 13. In fact, during this telephone call a Plan representative attempted to explain to Plaintiff that intermittent absences could count toward the Elimination Period, and told Plaintiff to contact the Plan if his symptoms persisted. (Defs.' Sup. SOF ¶ 7.)
Plaintiff contends his symptoms persisted and contributed to his absence from work for at least 10 days a month, albeit not consecutive absences. (Pl. SOF ¶¶ 5-7.) Plaintiff also contends these absences "had a devastating effect on his commission income." (Pl. SOF ¶ 5.) Yet, Plaintiff did not contact the Plan about these intermittent absences.
In August 2004, Plaintiff stopped working entirely and was subsequently approved for disability benefits with a disability date of August 3, 2004. (Pl. SOF ¶ 8; Def. Resp. SOF ¶ 8; Def. SOF ¶ 20.) Plaintiff contends that the date of disability should be earlier than August 2, 2004, because of his intermittent absences. (Pl. SOF ¶ 36; Def. Resp. SOF ¶ 36.) Plaintiff further contends that this later disability date has resulted in an incorrect BEC because it is based on earnings that were artificially depressed by his intermittent disability.
Plaintiff carries the burden to establish that Defendant's decision constituted an abuse of discretion that was "'without reason, unsupported by substantial evidence or erroneous as a matter of law.'" Hinkle v. Assurant, Inc., No. 09-2710, 2010 WL 3199730, *2 (3d Cir. 2010) ...