Sharp v. Trustees of the UMWA 1974 Pension Trust

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

WILLIAM R. SHARP, )

)

Plaintiff, )

)

v. ) Case No. 18-cv-03056

)

TRUSTEES OF THE UMWA 1974 )

PENSION TRUST, )

)

Defendants. )

OPINION

SUE E. MYERSCOUGH, U.S. District Judge:

Now before the Court are Defendants’ Motion for Summary

Judgment (d/e 19) and Plaintiff’s Motion for Summary Judgment

(d/e 21). For the reasons set forth below, Plaintiff’s summary

judgment motion is GRANTED. Accordingly, Defendants’ summary

judgment motion is DENIED.

I. INTRODUCTION

On March 23, 2018, Plaintiff William R. Sharp filed a

Complaint against the United Mine Workers of America Health and

Retirement Funds. On August 3, 2018, Plaintiff, with leave of

Court, filed an Amended Complaint against Defendants, Trustees of

the UMWA 1974 Pension Trust. Plaintiff’s Amended Complaint,

pursuant to provisions of the Employee Retirement Income Security

Act (ERISA), requests an award of pension disability benefits under

the United Mine Workers of America 1974 Pension Plan (Pension

Plan), prejudgment interest, costs, and attorney’s fees.

Both parties now move for summary judgment. The material

facts are undisputed.1 Plaintiff claims that the undisputed material

facts establish that he is entitled to pension disability benefits

under the Pension Plan. In contrast, Defendants assert that the

undisputed material facts establish that Defendants’ decision to

deny Plaintiff pension disability benefits was not arbitrary or

capricious and must be affirmed.

1 Plaintiff failed to respond to the facts asserted in paragraphs 23, 37, 83, and

110 of Defendants’ Motion for Summary Judgment. Accordingly, the Court

treats these facts as admitted by Plaintiff. See CDIL-LR 7.1(D)(2)(b)(6) (“A

failure to respond to any numbered fact will be deemed an admission of the

fact.”). Plaintiff claims that paragraphs 116 through 119 of Defendant’s

summary judgment motion contain disputed material facts. Response (d/e

24), at 18-24. These paragraphs merely assert that a document explaining

Defendants’ decision to deny Plaintiff disability benefits contains certain

statements. Plaintiff disagrees with the statements but does not dispute that

they are located in the document. The same can be said with respect to

Plaintiff’s disputes as to additional facts put forth by Defendants in response to

Plaintiff’s summary judgment motion. See Reply (d/e 26), at 1-6. Lastly,

despite Plaintiff’s claim that facts asserted in paragraphs 41, 93, and 111 of

Defendant’s summary judgment motion are disputed, the Court cannot discern

any dispute that Plaintiff has with the facts asserted in those paragraphs.

II. JURISDICTION AND VENUE

The Court has subject matter jurisdiction over Plaintiff’s claim

for pension disability benefits because that claim is brought under

29 U.S.C. § 1132(a)(1)(B). See 28 U.S.C. § 1331 (“The district courts

shall have original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States.”).

Because a substantial part of the events giving rise to

Plaintiff’s claim occurred in the Central District of Illinois, this

district is a proper venue for Plaintiff’s claim. See 28 U.S.C. §

1391(b)(2) (stating that a civil action may be brought in “a judicial

district in which a substantial part of the events or omissions giving

rise to the claim occurred”).

III. FACTS

Since the 1980s, Plaintiff has been evaluated for “numerous

problems including his low back.” R. 346.2 Plaintiff had chronic

low back pain complaints prior to December 16, 2003. Id. In

testimony provided in connection with a workers’ compensation

claim, Plaintiff stated that he had low back pain and left-leg

2 In this Opinion, the Court uses “R.” followed by a number (or numbers) to cite

to the Administrative Record (d/e 18).

numbness prior to December 16, 2003 and that he filed a previous

workers’ compensation claim after an accident in October 1999

involving his low back. R. 352-53.

In 1999, Plaintiff had radiculopathy and, possibly, a lumbar

disk rupture. R. 349. Vittal Chapa, M.D., ordered a lumbar MRI.

Id. Plaintiff underwent an MRI in November 1999. R. 355. The

MRI results, when compared to the results of an MRI conducted in

June 1997, noted a significant change at the L2-3 and L4-5 levels.

Id. At L3-4, Plaintiff had developed a posterolateral herniation of

the disk with encroachment upon the L3 nerve root. Id. On

January 19, 2000, Plaintiff underwent a CT myelogram, which

showed a diffuse disk bulge at L3-4 with bilateral inferior foraminal

stenosis. Id.

In 2000, Dr. Chapa diagnosed Plaintiff with lumbar disk

radiculopathy, and Plaintiff was admitted to the hospital for

intractable low back pain. R. 349. An MRI from September 2000

showed a diffuse bulging of the disk at L3-4. R. 69. On October

17, 2000, Dr. Chapa diagnosed Plaintiff with chronic low back pain

and lumbar disk disease. R. 349. On July 21, 2003, Dr. Chapa

noted Plaintiff’s history of chronic back pain and osteoarthritis. R.

352.

Plaintiff was employed by Freeman United Coal Mining

Company (Freeman), a signatory company to the Pension Plan,

which was administered by Defendants. On December 17, 2003,

Freeman completed an accident report stating that Plaintiff had

stepped in a hole and twisted his back, resulting in a sprain. R.

116.

Two days later, Dr. Chapa met with Plaintiff, who reported that

he had stepped in a hole and twisted his back and was experiencing

pain in his low back that radiated down his right leg. R. 93.

Plaintiff also reported that his pain was somewhat better than it

had been two days prior and that he was experiencing some

intermittent numbness in his right leg. Id. Dr. Chapa found that

Plaintiff had a “positive straight leg raising test on both sides at 70

degrees.” Id. Dr. Chapa’s impression was “[l]umbosacral sprain,”

“[r]ule out lumbar radiculopathy,” and “[p]revious history of lumbar

disk disease.” Id. Dr. Chapa noted that Plaintiff could return to

restricted work not involving physical activity on December 20,

2003. R. 93-94.

On December 23, 2003, Dr. Chapa again saw Plaintiff, who

reported that his pain was still present and that he was

experiencing numbness radiating down his right leg. R. 95.

Plaintiff also reported that he was back at work but not doing any

bending, lifting, or stooping. Id. Dr. Chapa found that Plaintiff had

a “positive straight leg raising test on the right at 70 degrees” and

mild paravertebral muscle spasms. Id. Dr. Chapa’s impression was

“[l]umbar disk with radiculopathy,” and he ordered an MRI of the

lumbar spine. Id.

On January 5, 2004, Plaintiff underwent an MRI of his lumbar

spine. R. 363. The findings were as follows: (1) “mild degenerative

change without significant canal or foraminal stenosis” at the L1-2

and L2-3 interspaces; (2) “mild degenerative change without

significant canal or foraminal stenosis” at L3-4; (3) “moderate canal

and bilateral foraminal stenosis secondary to a combination of disk

bulge, ligamentous hypertrophy and facet arthropathy” at L4-5; (4)

“minimal degenerative change in the disc with small central disc

bulge” and “[n]o significant canal or foraminal stenosis” at L5-S1;

and (5) “a rudimentary disc at S1-S2.” Id. The MRI findings were

summarized as follows: “Significant canal and foraminal stenosis at

L4-5. Very small disc at S1-2.” Id. During a deposition, David W.

Mack, M.D., an orthopedic surgeon who treated Plaintiff, “opined

that all the things seen on the [January 5, 2004,] MRI were present

prior to the December 16, 2003 accident and were present and

growing for years.” R. 346-47, 368.

On January 12, 2004, Plaintiff saw Dr. Chapa and reported

significant back pain that required Plaintiff to lay with a heating

pad for two hours after work. R. 96. Dr. Chapa, whose impression

was “[s]pinal stenosis,” planned to refer Plaintiff to Dr. Mack. Id.

Dr. Chapa advised that Plaintiff should not bend, stoop, lift over 20

pounds, or ride on rough equipment. R. 97.

On January 20, 2004, Plaintiff visited Dr. Mack and reported

back pain that went into his legs and “a long history of difficulty

with his back.” R. 342, 368. However, Plaintiff felt that his back

was doing “fairly well” until he stepped in a hole and twisted his

back in December 2003. R. 368. Dr. Mack diagnosed “degenerative

disc at L3-4 and L4 nerve root irritation” involving the lower legs

and thighs. R. 343. Ten days later, Dr. Mack diagnosed

“degenerative disc with lumbar spinal stenosis and foraminal

stenosis.” Id. On January 28, 2004, a return-to-work slip

diagnosed Plaintiff with a lumbar strain. Id.

On February 11, 2004, Plaintiff was seen by Paul A. Smucker,

M.D., who performed electromyography (EMG) testing on Plaintiff.

R. 268. Plaintiff reported “longstanding pain in his low back, with

an exacerbation this past December when he stepped into a hole,” a

“sharp pain radiating into his right leg” when he stepped into the

hole, a history of “episodic back problems,” and a “tendency to

experience numbness and tingling” in his thighs and legs. Id.

Plaintiff also reported that his low back pain was more problematic

than his “lower extremity symptoms.” Id.

Dr. Smucker’s conclusions were “[m]ild right L5 and S1

radiculopathy” with no “electrodiagnostic evidence of definable

radiculopathy on the left” and “[n]o electrophysiological evidence of

diffuse peripheral neuropathy.” R. 269. Dr. Smucker’s impression

was “[l]ow back pain, suggesting possible discogenic/degenerative

disc pain, with history of exacerbation this past December.” Id.

On February 19, 2004, Plaintiff saw Dr. Chapa, who noted

that Plaintiff was performing restricted work and reporting back

pain. R. 99. Dr. Chapa’s impression was “[l]umbar disc with

radiculopathy.” Id.

On March 19, 2004, Plaintiff informed Dr. Mack that Plaintiff’s

pain was worse on the left. R. 344. Dr. Mack diagnosed “spinal

stenosis L4-5 with radicular pain.” Id. Three days later, Plaintiff

was seen by Dr. Chapa, who noted that Plaintiff was seeing Dr.

Mack for his back pain and had received epidural injections. R.

100. Dr. Chapa’s impression was “[l]umbar disc with back pain.”

Id.

On April 7, 2004, Plaintiff visited Dr. Mack. R. 344. At this

visit, according to an August 2007 decision by the Illinois Workers’

Compensation Commission (Commission), Plaintiff complained of

low back pain that went into the left hip and, according to Dr.

Mack, voiced a desire to “have something done” because Plaintiff’s

level of activity had markedly decreased. R. 340, 344, 358.

According to the Commission decision, Dr. Mack diagnosed L4-5

spinal stenosis with radicular pain and “degenerative changes with

foraminal stenosis” and felt that Plaintiff needed “a bilateral

decompression and possibly a posterolateral fusion.” R. 344.

The same Commission decision also summarized a report by

Timothy Van Fleet, M.D., to Dr. Mack on April 23, 2004, as follows:

[Plaintiff] was seen this day and reported he had been

experiencing low back pain and lower extremity pain for

some time. Dr. Van Fleet noted that he had previously

worked [Plaintiff] up with a discogram which

demonstrated 3 positive disc spaces and opined that

[Plaintiff] would not do well with a spinal fusion. Dr. Van

Fleet recommended bilateral laminectomies at L3-4 and

L4-5. He opined [Plaintiff] should be able to return to

work after the surgery.

R. 344.

Plaintiff underwent a preoperative examination by Dr. Chapa

on May 2, 2004. R. 101-03. Dr. Chapa noted that Plaintiff had a

history of chronic back pain and lumbar disk disease. R. 101. Dr.

Chapa’s impression included spinal stenosis. Id.

On May 10, 2004, Plaintiff underwent L3-4 and L4-5 bilateral

laminectomies performed by Dr. Van Fleet. R. 271-72. Plaintiff’s

preoperative diagnosis was lumbar radiculopathy. R. 271. Dr. Van

Fleet noted that Plaintiff “has a history of lumbar

spondyloradiculopathy” and “has failed to improve despite

nonoperative measures.” Id. The Commission’s August 2007

decision noted that Dr. Mack testified that Dr. Van Fleet “did not

remove any disc material” during Plaintiff’s surgery but did remove

“degenerative bony growth that had been occurring for a number of

years and some degenerative ligamentum flavum.” R. 347.

On May 26, 2004, Plaintiff was doing well, and the pain in his

legs had improved. R. 347. On June 23, 2004, Plaintiff reported to

Dr. Van Fleet that Plaintiff had no “significant difficulties other than

occasional burning into the leg.” Id. On June 25, 2004, Dr. Van

Fleet released Plaintiff from care in good condition to return to full

duty. R. 326-27, 344.

On August 4, 2004, Plaintiff reported that his back felt better

but that he had occasional numbness in his right leg. R. 347. Due

to a work suspension, Plaintiff did not return to work until

September 7, 2004. R. 327, 345.

During a deposition conducted on September 9, 2004, Dr.

Mack was asked whether Plaintiff’s accident on December 16, 2003,

was a cause, by way of aggravation, of the condition for which Dr.

Mack treated Plaintiff and Plaintiff’s May 10, 2004 surgery. R. 373.

Dr. Mack responded as follows:

Yes. What he gives is pretty much classic history. They

will have the degenerative changes. They will have the

narrowing, the foraminal stenosis, do fairly well, come

and go, and then all of the [sic] sudden he will get into

some accident, and then we get him in here.

Probably about half of the time you can bail them out

with a combination of shots, medicine, epidurals. Then a

small percentage will go on just like him, and everything

you do is not fruitful. So, consequently you wind up

doing surgery. Surgery usually, fortunately you get them

back going, and they do pretty well now. When you do

foraminotomies, the down side of it is if he gets back into

mining, he could do well for three, five, seven, ten years,

and then it is gradually going to fill in again.

Id. Dr. Mack also stated that Plaintiff would return to work and

“probably do well for a while.” R. 375.

The decision issued in August 2007 by the Commission

described a portion of Dr. Mack’s deposition testimony as follows:

Dr. Mack opined that [Plaintiff’s] foraminal stenosis is a

result of degenerative disease. Dr. Mack did not know if

[Plaintiff] ever made radicular complaints in his legs prior

to December 16, 2003, but that could be consistent with

his problem. The results noted in the EMG would have

been a nerve problem prior to December 16, 2003. There

were no left leg findings on the February 27, 2004 EMG.

Facet hypertrophy is essentially an enlargement of the

joints which occur secondary to the degenerative process

and most people think of this as arthritis.

Dr. Mack testified that when he was reviewing [Plaintiff’s]

records for this deposition, he discovered that [Plaintiff]

had prior low back injuries. He noted that [Plaintiff] had

a long history of low back treatment. Prior tests such as

MRIs had shown [Plaintiff] had bulging discs and

worsening of the condition.

* * *

Dr. Mack opined that all the MRI findings and other tests

in 2004 could be the result of prior low back injuries.

Dr. Mack opined that degenerative conditions in the low

back are generally progressive in nature. He opined that

[Plaintiff’s] condition has been progressive, but was not

necessarily unusually progressive. He opined that facet

arthropathy can get worse over time and [Plaintiff] has

this.

R. 347 (citations omitted).

On September 16, 2004, Plaintiff informed Dr. Chapa that

Plaintiff had back pain that had started a few weeks prior and was

radiating to the right leg. R. 105. Plaintiff stated that his pain was

worse than before the surgery. Id. Dr. Chapa found that Plaintiff

had a “positive straight leg raising test on [the] right side at 60

degrees,” which could have indicated a pinched nerve in Plaintiff’s

back. R. 105, 378. Dr. Chapa’s impression was persistent

radicular symptoms post lumbar disk surgery. R. 105. According

to Dr. Chapa, Plaintiff did not link his renewed back pain to a

“worsening or new onset at work.” R. 349. Plaintiff indicated that,

after the appointment with Dr. Chapa on September 16, 2004, that

Plaintiff “‘bid off’ the mine examiner job, took a reduction in pay,

and began performing duties as a general laborer on the midnight

shift.” R. 327.

During a follow-up visit with Dr. Chapa on September 30,

2004, Plaintiff reported significant pain in his right thigh radiating

down from his back and stated that his back surgery “did not help

him very much.” R. 106. Dr. Chapa noted that Plaintiff was known

to have lumbar disk disease, ordered an MRI of the lumbar spine,

and referred Plaintiff for an EMG. Id. Dr. Chapa’s impression was

lumbar radiculopathy with persistent pain post lumbar surgery. Id.

With respect to the MRI conducted on October 12, 2004, the

August 2007 Commission decision noted the following:

Dr. Chapa testified that the lumbar MRI . . . showed mild

diffuse disc bulge at L4-5. Dr. Chapa opined that diffuse

is usually a degenerative finding as opposed to a focal

bulge, which can be traumatic. The radiologist who

interpreted the . . . MRI found no disc herniation or

significant central canal stenosis at L4-5. The foamina

[sic] was [sic] not narrowed and was [sic] still open and

there was room for the nerve roots to exit and there was

no nerve root impingement. The prior stenosis seen on

the earlier MRI had been relieved by surgery.

R. 350 (citations omitted).

On October 27, 2004, Plaintiff was examined by M.L. Mehra,

M.D., a neurologist, and underwent an EMG. R. 274-75. Plaintiff

reported residual burning pain in his back and right thigh that

went into the right leg but no pain on the left side. R. 274. Plaintiff

also stated that the pain, which never got better after his surgery,

was worse when he stood, walked, or stooped. Id. Dr. Mehra noted

that Plaintiff had a lumbar laminectomy in May 2004 after an

accident in December 2003. Id. Dr. Mehra also noted that Plaintiff

had lumbar disk disease three years ago and also had an epidural

block and a local cortisone injection. Id. Dr. Mehra reviewed

Plaintiff’s MRI scan, which showed mild postop changes at L4-5. Id.

Dr. Mehra noted that the EMG of Plaintiff’s paraspinous,

quadriceps, tibialis anterior, extensor hallucis longus, extensor

digitorum brevis, gastrocnemius, soleus, and hamstrings showed

“an old right L5 irritation with fibrillation and positive wave in the

paraspinous, tibialis anterior and gastrocnemius with diminished

number of motor units and increased polyphasic potential.” R. 275.

Dr. Mehra’s impression was recurrent right L5 radiculopathy post

lumbar laminectomy. R. 276. Dr. Mehra recommended and

scheduled an epidural block. Id. The August 2007 Commission

decision stated that Dr. Mehra’s examination found Plaintiff

“entirely normal.” R. 350.

On October 28, 2004, Dr. Chapa saw Plaintiff, who

complained of significant back pain that sometimes radiated to the

right leg. R. 107. Dr. Chapa noted Dr. Mehra’s diagnosis of an L5

root irritation and referral for epidural injections. Id. Dr. Chapa’s

impression was lumbar radiculopathy with persistent pain post

lumbar surgery. Id. Dr. Chapa recommended restricted work as

tolerated with no prolonged walking and epidural injections. R.

108.

On November 4, 2004, Plaintiff reported back pain to Dr.

Chapa, who restricted Plaintiff to light-duty work. R. 109. Dr.

Chapa’s impression was lumbar radiculopathy. Id. Five days later,

Dr. Chapa reported that Plaintiff was able to perform light work. R.

114.

On December 7, 2004, Plaintiff saw Dr. Chapa and complained

of back pain and side effects from epidural injections. R. 110. Dr.

Chapa’s impression was chronic back pain with radicular

symptoms post back surgery. Id. Dr. Chapa, who stopped

Plaintiff’s steroid injections, noted that Plaintiff had a “positive

straight leg raising test on both sides.” Id.

On December 21, 2004, Plaintiff complained of back pain and

numbness in the right leg to Dr. Chapa, whose impressions were

lumbar radiculopathy and “[f]ailed laminectomy syndrome” due to a

work-related injury on December 16, 2003. R. 111. On January 4,

2005, Dr. Chapa, during a deposition, testified that Plaintiff’s back

pain and “lower extremity symptoms” are related to Plaintiff’s

December 2003 injury. R. 380. With respect to this impression of

“failed laminectomy syndrome,” Dr. Chapa explained that the term

is sometimes used to describe patients who do not response to

surgery and continue to have back pain in spite of surgery. Id.

The August 2007 Commission decision described testimony

provided by Dr. Chapa as follows:

Dr. Chapa’s January 12, 2004 impression was spinal

stenosis. He opined that stenosis can be arthritis and

ligaments can add to stenosis. A bulging or herniated

disc can cause stenosis. Dr. Chapa reviewed the

Operative Report and stated that Dr. Van Fleet did not

remove any disc material. He opined that the

laminectomies performed were to make more room for the

nerve roots to exit the spinal cord. Dr. Chapa opined

that the bulging disc could be due to dehydration of the

disc, which is normal aging process or injury, and he

could not tell which is the case here.

* * *

There are situations where the stenosis exists and is the

result of trauma and have [sic] increased pain.

* * *

Dr. Chapa testified that the disc was not taken out and

that space was made so the nerves in the spine were not

pinched. The December 2003 x-rays showed significant

degenerative changes. Dr. Chapa opined that these

degenerative changes progressed to the point where they

impinged on the nerves. Dr. Chapa opined that normal

activity can make degenerative changes symptomatic.

R. 349-50 (citations omitted).

On February 1, 2005, Dr. Chapa saw Plaintiff, who

complained of intermittent numbness in his right leg, which

sometimes gave out on him. R. 169. Dr. Chapa’s impression was

lumbar radiculopathy. Id.

On February 4, 2005, Dr. Mehra conducted a nerve

conduction study on Plaintiff. R. 193. Dr. Mehra’s clinical

impression was mild right L5 radiculopathy post lumbar

laminectomy. Id.

On February 18, 2005, Plaintiff saw Dr. Mack, who noted that

Dr. Van Fleet saw Plaintiff on May 4, 2004 and scheduled him for

bilateral laminectomies, which were completed six days later. R.

144. Plaintiff complained of back pain that went down into his leg.

Id. Dr. Mack noted that Plaintiff, at the time the laminectomies

were performed, had been diagnosed with spinal stenosis and had

decompression at the L3-4 and L4-5 levels. Id. According to Dr.

Mack, the laminectomies cleared up Plaintiff’s pain “on the left,” but

Plaintiff “developed more pain on the right.” Id. Dr. Mack noted

that Plaintiff had “positive straight leg raising on the right” with

slight weakness. Id.

Dr. Mack also noted that Plaintiff was shown to have

“inflammation in the right with radicular symptoms” and that

Plaintiff “had evidence back in February 2004 of the mild right L5-

S1 radiculopathy.” Id. In addition, Dr. Mack stated that Plaintiff’s

MRI on October 13, 2004, showed a mild, diffuse bulge at L3-4 and

some postop changes on the right at L4-5. Id. Dr. Mack’s

impression was “[d]egenerative disc with foraminal stenosis” and he

recommended another decompression of Plaintiff’s lower back and,

possibly, a fusion. Id.

On March 17, 2005, Lawrence Leventhal, M.D., performed an

independent medical examination of Plaintiff at Freeman’s request.

R. 351. On May 11, 2005, Dr. Leventhal, testified in a deposition

regarding Plaintiff. Id. The August 2007 Commission decision

described Dr. Leventhal’s examination and opinion as follows:

Dr. Leventhal opined that [Plaintiff’s] reported diffuse

numbness was not in a normal dermatomal pattern

which would indicate a nerve root distribution. Dr.

Leventhal opined that negative straight leg raising tests

would indicate there was no nerve root irritation. Dr.

Leventhal found no cause for the range of motion

limitation. Dr. Leventhal opined that the examination

results were fairly normal, other than decreased range of

motion. Dr. Leventhal stated he had viewed the

videotapes and opined that the activities at the

examination were not consistent with what he saw on the

videotapes in that [Plaintiff] had a much greater range of

motion seen on the videotapes. Dr. Leventhal opined

that he saw no signs of disability or discomfort by

[Plaintiff] on the videotapes. He had reviewed [Plaintiff’s]

job description and opined he was capable of the work.

* * *

Dr. Leventhal took x-rays . . . [and] opined that the

spurring had been present for years . . . [and] that the

degenerative changes noted in the MRI reports and x-

rays were consistent with long-standing arthritis.

Dr. Leventhal diagnosed spinal stenosis of the lumbar

spine, status post-two level decompression with

continued subjective complaints. Dr. Leventhal opined

that the December 16, 2003 accident did not cause the

spinal stenosis. Dr. Leventhal opined that the accident

might have caused a temporary aggravation of back pain,

but would not cause any progression of the spinal

stenosis.

* * *

Dr. Leventhal opined that the surgery was not

necessitated by the December 16, 2003 accident, but was

necessitated by the spinal stenosis.

* * *

Dr. Leventhal opined no causal connection for the

surgery, which was necessitated by the spinal stenosis

[Plaintiff] had. He opined [Plaintiff’s] low back condition

was degenerative and progressive and that it can

progress over time to where normal activities of life can

cause it to become symptomatic.

* * *

Dr. Leventhal opined that [Plaintiff] was capable of

working as an electrician.

* * *

Dr. Leventhal opined that the accident could have made

[Plaintiff] symptomatic on a temporary basis. Dr.

Leventhal opined that the accident would not aggravate

the spinal stenosis, but could potentially have been a

temporary exacerbation of symptoms and increased his

low back pain.

* * *

Dr. Leventhal opined that the December 16, 2003

accident did not cause a permanent exacerbation.

R. 351-52 (citations omitted).

In 2004, Plaintiff filed a workers’ compensation claim based on

his work accident on December 16, 2003. R. 322-28. On August

10, 2005, the Commission issued an arbitration decision awarding

Plaintiff temporary total disability benefits from Freeman from May

10, 2004, through June 25, 2004. R. 324. The Arbitrator noted as

follows:

Prior to December 16, 2003, [Plaintiff] suffered from a

condition of both spinal stenosis and foraminal stenosis,

predominantly at the L3-4 and L4-5 levels. [Plaintiff] had

injured his back in 1999 and received treatment to his

low back, including epidural steroid injections. The case

was arbitrated in July, 2001 and [Plaintiff] testified at

that time that he still suffered from occasional low back

pain and occasional radiation of pain into the left leg.

* * *

There is no indication that [Plaintiff] had any treatment

for low back pain or symptoms radiating into either leg

during the calendar year 2001 and 2002.

* * *

Dr. Mack acknowledged that the spinal stenosis and

foraminal stenosis was a degenerative condition which

existed prior to December 16, 2003, but testified that the

accident of December 16, 2003 was a cause by way of

aggravation of his preexisting condition, and that the

need for surgery performed by Dr. Van Fleet was related

to the accident of December 16, 2003. It was Dr. Mack’s

opinion that the onset of low back pain with pain

radiating into the legs is usually traumatic in nature and

the injury as described (a fall with twisting) is most

consistent as the cause which led to the need for surgery

on May 10, 2004.

* * *

[Freeman’s] IME physician, Dr. Lawrence Leventhal,

agreed that [Plaintiff’s] accident of December 16, 2003

could indeed result in [Plaintiff’s] preexisting condition of

spinal stenosis and foraminal stenosis becoming

symptomatic and further agreed that [Plaintiff’s]

preexisting condition made him more prone to injury

from a trauma than a person who did not have a

degenerative condition in his low back. While Dr.

Leventhal concluded that the symptoms would be

causally related only on a temporary basis . . . Dr. Mack

and Dr. Van Fleet, were of the opinion . . . that surgery

was indicated and necessary.

R. 325-26.

The Arbitrator found that Plaintiff’s May 2004 surgery was

“causally related” to Plaintiff’s December 2003 accident. R. 326.

Specifically, the Arbitrator stated as follows on the issue of causal

connection:

Given the significant complaints and lack of any

treatment for low back complaints between the years

2001 and the date of the accident on December 16, 2013

and the testimony of Dr. Mack and Dr. Chapa supporting

causal connection, the evidence viewed in its entirety

supports the conclusion that the condition of [Plaintiff]

and the surgery performed on May 10, 2004 is causally

related to [Plaintiff’s] accident of December 16, 2003.

R. 326. With respect to whether Plaintiff’s recommended second

surgery was causally connected to his December 2003 accident, the

Arbitrator stated as follows:

Given the totality of the evidence, including the onset of

recurrent symptoms in the low back and radiation of

pain into the right leg within a week to ten days after

returning to heavy labor on a full-time basis with

[Freeman], and considering the testimony of Dr. Chapa

and his diagnosis of “failed laminectomy syndrome” and

the report of Dr. Mack indicating the reasonableness of a

repeat decompression, the proposed treatment of a repeat

decompression is reasonable and proper and causally

related to the accident of December 16, 2003.

R. 328.

The Arbitrator awarded Plaintiff temporary total disability

benefits for 6 and 4/7 weeks and $4,245 for necessary medical

expenses. R. 324, 328. On August 25, 2005, Freeman filed a

petition to review the Arbitrator’s decision. R. 341.

On September 13, 2005, Dr. Chapa saw Plaintiff, who reported

back pain that had been “on and off” and occasional numbness in

his right leg. R. 170. Dr. Chapa noted that Plaintiff’s lumbar spine

MRI in October 2004 “revealed no evidence of disc herniation or

significant central canal stenosis.” Id. Dr. Chapa’s impression was

lumbar radiculopathy. Id.

The Commission affirmed the Arbitrator’s August 2015

decision on July 19, 2006. R. 330-31. Freeman subsequently

appealed to the Circuit Court of Macoupin County, Illinois, and a

state court judge remanded the case to the Commission for further

consideration. R. 341.

On August 11, 2006, Plaintiff had a visit with Dr. Chapa, who

noted that it was Plaintiff’s first visit in about a year. R. 171. Dr.

Chapa counseled Plaintiff about weight reduction and smoking, and

labs were drawn. Id. There was no mention of back pain or issues

with lower extremities. On August 21, 2006, Dr. Chapa saw

Plaintiff to discuss Plaintiff’s lab results and advised Plaintiff to lose

weight. R. 172. Again, there was no mention of back pain or issues

with lower extremities. There are no documents within the

administrative record indicating that Plaintiff complained of back

pain or extremity pain or had medical appointments concerning

back pain or extremity pain between September 13, 2005, and

January 26, 2007.

On January 26, 2007, Dr. Mack saw Plaintiff, who reported

pain in the lower back and right leg with tingling and numbness.

R. 145. Plaintiff rated the pain as a 9 on a scale from 1 to 10. Id.

Dr. Mack noted that the pain was on Plaintiff’s left side but went to

the right side after Plaintiff’s surgery and that Plaintiff’s pain was

consistent on the right “with severe pain down the leg.” Id.

According to Dr. Mack, x-rays of Plaintiff showed “a great deal of

degenerative changes at the two lower levels.” Id. Dr. Mack

recommended an EMG and an MRI. Id.

On February 2, 2007, an MRI of Plaintiff’s lumbar spine was

performed. R. 146. According to Lucy R. Christopherson, M.D., the

MRI showed mild degenerative disk disease and mild facet arthritis

at L3-4, mild diffuse disk bulge and facet arthritis at L4-5, and mild

diffuse disk bulge at L5-S1. Id. Noted with respect to L4-5 were an

extremely limited axial data set, possible postop changes on the

right, possible moderate spinal canal stenosis, and foraminal

narrowing that was “greater on the left.” Id. Noted with respect to

L5-S1 were foraminal narrowing, “greater on the right,” and a

possible small central disk protrusion. Id. Dr. Christopherson’s

impression was that the MRI provided very limited views and that

Plaintiff had a small central disk protrusion at L5-S1. Id.

On February 6, 2007, Plaintiff underwent a nerve conduction

test and an EMG conducted by Edward R. Trudeau, M.D. R. 154-

59. Dr. Trudeau interpreted the EMG results as showing right L5

radiculopathy, “moderately severe in electroneurophysiologic testing

terms,” with chronic and acute features, which was consistent with

the “quite correct clinical assessment of Dr. Mack” and right S1

radiculopathy, “mild in electroneurophysiologic testing terms.” R.

159. Dr. Trudeau did not suggest the presence of peripheral

neuropathy. R. 69, 159. Dr. Trudeau noted that his findings “may

be consistent with a persistent, residual lesion and would not be

unusual” given the relevant time frame and suggested a bone scan

of Plaintiff’s lower back and right leg “to assess for degenerative,

occult, or inflammatory lesions.” R. 156-57. Dr. Trudeau, in his

report, also stated as follows:

[Plaintiff] may have right L5 and right S1 radiculopathies

on the basis of structural abnormalities both at L4/5 and

L5/S1. The patient has disc bulge at both L4/5 and

L5/S1 levels, it was noted that there is possibly moderate

spinal canal stenosis at L4/5, and we suspect that

structural abnormalities at the L4/5 level may

compromise both the right L5 and less so the right S1

nerve root.

Therefore it may be that both at the L4/5 and L5/S1

levels there are structural factors which may contribute

to compromise of right L5 and right S1 nerve roots,

through this of course is theoretical speculation at this

point.

Id.

On February 20, 2007, Plaintiff reported severe pain in his low

back and right leg to Dr. Mack, who noted that Plaintiff was a self-

employed electrician who was having trouble “if he spen[t] too much

time up.” R. 148. Plaintiff also informed Dr. Mack that Plaintiff’s

pain was on the left side before his surgery but is now on the right

side. Id. Dr. Mack noted that Plaintiff’s MRI showed degenerative

changes, noted that Plaintiff’s EMG showed a L5-S1 nerve root

“compatible with his pain pattern.” Id. Dr. Mack, whose

impression was disk syndrome on the right, recommended a partial

laminectomy. Id.

On March 13, 2007, Plaintiff underwent a preoperative

examination. R. 174. Plaintiff’s history included “lumbar radicular

Sx on Rt, lumbar radiculopathy, [and] osteoarthritis.” Id. On

March 21, 2007, Plaintiff underwent a decompressive laminectomy

with posterolateral fusion and disk removal at L4-5, which was

performed by Dr. Mack. R. 149. Dr. Mack encountered

considerable scar tissue during the surgery. Id. The report from

the operation noted that Plaintiff had a previous procedure in which

a disk was removed that eliminated the pain from Plaintiff’s left leg.

Id. The report also noted that Plaintiff began experiencing pain in

his right leg after a while. Id.

On March 28, 2007, Plaintiff filed for Social Security disability

benefits. R. 122. In applying for the disability benefits, Plaintiff

indicated that he had difficulty with bending over to tie his shoes

and that his ability to lift diminished after his surgery. R. 214. On

April 22, 2007, Plaintiff completed an SSA Work History Report. R.

220-23. In the report, Plaintiff noted that he stopped working at

Freeman in December 2004 but continued working as an electrician

until March 2007. R. 220. Plaintiff also noted that his work as an

electrician required him to frequently lift 50 pounds or more, climb

five hours a day, stoop for two hours a day, carry supplies and

materials, and hold boxes to be fastened. R. 222. Plaintiff stated

that, after his back surgery, he could not be as active as he once

was or perform his job duties as he once could. R. 223.

On May 9, 2007, the Social Security Administration (SSA)

determined that Plaintiff did not qualify for Social Security disability

benefits. R. 122, 227-29. Plaintiff’s primary diagnosis was

“[d]isorders of back (discogenic and degenerative),” and no

secondary diagnosis was established. R. 122. The SSA, having

reviewed reports from Dr. Chapa, Dr. Trudeau, Memorial Medical

Center, and Dr. Mack, found that, although Plaintiff had some

restrictions, Plaintiff could still do light work. R. 123. Plaintiff filed

for reconsideration of the SSA’s decision on the same day it was

issued. R. 120.

On May 29, 2007, Plaintiff reported leg pain to Dr. Mack, who

attributed the pain to Plaintiff not wearing a brace. R. 135. Dr.

Mack noted that Plaintiff’s x-rays showed wide decompression. Id.

Dr. Mack recommended that Plaintiff lose weight and go to therapy

to develop his abdominal muscles. Id.

On July 2, 2007, Dr. Chapa saw Plaintiff, who complained of

back pain and pain shooting down his right leg. R. 129. Dr.

Chapa’s impressions included chronic back pain after two back

surgeries. Id.

On July 12, 2007, Dr. Chapa wrote a letter stating that

Plaintiff injured his back at work in December 2003, had back

surgery in May 2004, went back to work in September 2004,

reinjured his back after returning to work, and had a second back

surgery in March 2007. R. 130. Dr. Chapa’s letter also states that

Plaintiff complains of right thigh numbness and back pain that

radiates down the left leg, issues that have not improved since the

second surgery. Id. Dr. Chapa, whose impression was persistent

lumbar radicular symptoms after two back surgeries, noted that

Plaintiff’s back pain after the surgeries was significant and radiated

down Plaintiff’s legs. R. 130-31. Dr. Chapa’s letter also stated that

Plaintiff was able to do sedentary work only. R. 131.

On July 13, 2007, Plaintiff reported leg soreness to Dr. Mack,

who noted that Plaintiff had a “decompression with a fusion” on

March 21, 2007. R. 136. Dr. Mack recommended an injection in

Plaintiff’s back, that Plaintiff join Weight Watchers, and that

Plaintiff go to physical therapy for abdominal strengthening. Id.

On August 22, 2007, the Illinois Workers’ Compensation

Commission issued an Amended Decision and Opinion on Review

on Remand. R. 340-58. The Commission affirmed the August 10,

2005, decision, finding a causal relationship between the injuries

Plaintiff sustained on December 16, 2003, and his “condition of ill-

being.” R. 355. The Commission noted that Plaintiff was

temporarily totally disabled from May 10, 2004, to June 25, 2004,

and entitled to a “repeat decompression surgery.” Id.

On September 4, 2007, the SSA affirmed its decision of May 9,

2007. R. 120-21, 224-26. The SSA acknowledged that Plaintiff’s

condition prevented him from doing his past jobs, but determined

that Plaintiff, who was 52 years old and had completed 12 years of

school, would be able to perform less demanding work within 12

months of his condition’s onset. R. 121.

On November 27, 2007, Dr. Trudeau performed an EMG and

evaluated Plaintiff. R. 180-85. Dr. Trudeau interpreted the EMG

results as showing “right lateral femoral cutaneous neuropathy

(meralgia paresthetica), mild to moderately severe in

electroneurophysiologic testing terms,” that was not seen in

Plaintiff’s February 2007 EMG results. R. 184. Dr. Trudeau’s

interpretation of the EMG results also included “[r]ight L5

radiculopathy, old or chronic as well as acute features, likely

persistent or residual lesion and not unusual” given that Plaintiff

had surgery in March 2007, a month after his previous EMG. Id.

Dr. Trudeau also noted that the report from Plaintiff’s March

2007 surgery mentioned that “considerable scar formation was

encountered,” that “marked thickening was present in the lateral

recess on the right,” and that “the L5 and S1 nerve roots freed up.”

R. 182. On this basis, Dr. Trudeau opined that Plaintiff likely has

“a persistent or residual right L5 radiculopathy.” Id.

On January 17, 2008, an Administrative Law Judge (ALJ) for

the SSA issued a decision finding that Plaintiff was disabled under

sections 216(i) and 223(d) of the Social Security Act beginning on

March 21, 2007. R. 87. The ALJ found that Plaintiff had the

following severe impairments: “disorders of the back (discogenic and

degenerative), neuropathy, and obesity.” R. 85.

While the ALJ found that Plaintiff had the residual functional

capacity to perform some work, the ALJ determined that “there are

no jobs that exist in significant numbers in the national economy

that [Plaintiff] can perform” given Plaintiff’s age, education, work

experience, and residual functional capacity. R. 86. In rendering

his decision, the ALJ stated as follows:

The evidence of record shows that the claimant stopped

working in March 2007 because of a recurrent back

injury that resulted in surgery in February 2005 and

again in March 2007. David Mack, M.D., the surgeon

performed a laminectomy at L3 and L4-5 and a

decompressive laminectomy with fusion and disc removal

at L4-5. During the second surgery, considerable scar

tissue was revealed. The claimant continues to complain

of back pain and numbness radiating down the left lower

extremity.

* * *

In July 2007, Vittal Chapa, M.D., the claimant’s long

time treating physician indicated that the claimant would

be unable to perform more than sedentary work.

R. 85-86. The ALJ found that Plaintiff’s “statements concerning the

intensity, persistence and limiting effects” of Plaintiff’s symptoms

were “generally credible.” R. 86. The ALJ also found that the

demands of Plaintiff’s past relevant work exceeded his residual

functional capacity. Id. On February 11, 2008, the SSA issued a

Notice of Award, finding that Plaintiff became disabled under the

SSA’s rules on March 21, 2007. R. 72.

On June 19, 2009, Plaintiff was seen by David R. Lange, M.D.,

for an independent spine evaluation at Freeman’s request. R. 67,

71. Plaintiff indicated that the back pain and right thigh discomfort

he was experiencing as a mine examiner led him to bid on a belt

shoveling job on the midnight shift. Id. Plaintiff stated that,

although he felt better after his surgery in March 2007, he had

more chronic pain than he would prefer and experienced back pain

with prolonged sitting or standing. R. 68. Plaintiff also indicated

that he had an unpleasant and numbing sensation in his right

thigh that began after the March 2007 surgery. Id. Dr. Lange

noted that “Waddell testing was totally normal.”3 Id. Dr. Lange also

noted that Plaintiff’s reflexes from a seated position were essentially

absent in the lower extremities. Id.

Based on a review of Plaintiff’s medical records and an

examination of Plaintiff, Dr. Lange found that Plaintiff presented

with “residual mechanical low back pain and right lower extremity

3 Waddell’s signs—tenderness tests, simulation tests, distraction tests, regional

disturbances, and overreaction—are used to detect nonorganic/psychogenic

manifestations of low back pain.

symptoms consistent with a persistent right L5 radiculopathy and a

right lateral femoral cutaneous neuropathy.” R. 68-70. Dr. Lange

found that Plaintiff “presented with no signs of symptom

magnification.” R. 70. Dr. Lange opined that Plaintiff’s “current

treatment is at least indirectly related to the original injury and the

treatment to address the initial 2003 injury.” Id.

In addition, Dr. Lange opined that Plaintiff “has a residual L5

radiculopathy on the right despite 2 decompressive attempts,” that

Plaintiff’s “right lateral femoral cutaneous neuropathy unfortunately

is likely a complication of the second surgical procedure,

presumably due to positioning,” and that “both in one way or the

other are related to the 2003 incident.” Id. Dr. Lange suggested a

spinal cord stimulator trial to try to address Plaintiff’s right leg pain

and stated that Plaintiff would be at “maximal medical improvement

after the spinal cord stimulator trial.” Id.

On November 5, 2009, Plaintiff underwent a percutaneous

insertion of a spinal cord stimulator. R. 313. The preoperative

diagnosis was “[f]ailed back syndrome, having had 2 laminectomy

surgeries, with persistent pain radiating down the right lower limb.”

Id.

On December 22, 2009, Plaintiff activated his service pension

application with the UMWA 1974 Pension Trust, and he began

receiving a 1974 Deferred Vested Pension effective March 1, 2010.

R. 33-34, 44. On May 27, 2015, over seven years after receiving an

award for Social Security disability benefits, Plaintiff applied for

disability benefits from the Pension Plan. R. 51-52.

On July 26, 2016, Plaintiff’s application for pension disability

benefits from the Pension Plan was denied. R. 252. A detailed

explanation was given for the denial, with all medical evidence

received up to the date of the denial considered. R. 242-251. The

denial explanation stated that the medical documentation did not

support a causal link between Plaintiff’s December 2003 mine

accident and his disabilities. R. 250.

On October 18, 2016, Plaintiff appealed the denial of pension

disability benefits. R. 256-57. In an affidavit submitted in support

of the appeal, Plaintiff asserted that he performed only light work

while working as an electrician from 2004 to 2007. R. 315, 318-19.

On February 1, 2017, the Pension Plan informed Plaintiff that

an additional independent review of the medical evidence on file

would be conducted and that medical evidence not previously

considered would be accepted as relevant and material to the

appeal. R. 258. On July 17, 2017, Plaintiff’s counsel sent to the

Pension Plan a letter and the following medical evidence, some of

which had been previously submitted: EMG reports from May 2004,

October 2004, February 2007, and November 2007; reports for

Plaintiff’s surgeries in 2004 and 2007; Dr. Lange’s June 2009

report; and the report for Plaintiff’s spinal cord stimulator surgery

in November 2009. R. 261-62.

On October 17, 2017, Plaintiff’s appeal for pension disability

benefits was denied. R. 389. The explanation for the denial stated

as follows:

The neurologic exam [on December 19, 2003] was normal

and Dr. Chapa returned [Plaintiff] to work the following

day. Dr. Chapa diagnosed low back strain with a history

of lumbar disc disease and rule out radiculopathy. On

January 5, 2004, an MRI of the lumbar spine revealed

significant canal stenosis and foraminal stenosis at L4-5

and a developmental abnormality at S1-S2. On February

11, 2015, Dr. Smucker completed an EMG study for

[Plaintiff’s] complaints that he had a flare of his back

pain in December 2003. The EMG revealed right L5 and

S1 radiculopathy suggestive of degenerative disc disease,

but no neuropathy. On May 10, 2004, Dr. Vanfleet [sic]

performed bilateral laminectomies at L3-4 and L4-5.

This surgical procedure, as described by Dr. Vanfleet [sic]

was intended to relieve the pain caused by degenerative

spondyloradiculopathy. Radiculopathy and neuropathy

are different conditions, although they have some of the

same symptoms. In his operative report, Dr. Vanfleet

[sic] made no reference to repairing an injury or removing

a herniated or ruptured disc. He stated he found

evidence of age related stenosis and bony overgrowth

during the surgical procedure. On February 18, 2005,

[Plaintiff] saw Dr. Mack for evaluation of back pain and

leg pain and was diagnosed with degenerative disc

disease with foraminal stenosis.

* * *

After that visit, the records indicated that Mr. Sharp did

not see Dr. Mack or any doctor for seven months. If

stepping into a hole and twisting the back caused an

acute and disabling injury, then it would be reasonable

to expect immediate medical intervention with the

diagnosis of traumatic injury. It is reasonable to assume

that [Plaintiff] suffered a temporary worsening of an

existing degenerative spine condition when he strained

his back on December 16, 2003, as opined by Dr.

Leventhal.

* * *

[Plaintiff] suffered from disc disease and arthritis of the

shoulders as early as the 1980’s [sic], when he began to

see Dr. Mack, an orthopedic surgeon, and his partners

for complaints of low back pain. It would have been

helpful to have had the missing records of Dr. Mack’s

care for review. He returned to work in the mine after an

injury in 1999. In 2000 he was hospitalized for

uncontrollable low back pain. He suffered low back

strain in 2003, and again he returned to work. The

nature of spinal disc disease is progressive and despite

treatment, it can worsen over time. There can also be

periods of reduced pain, as evidenced by gaps in

[Plaintiff’s] medical care.

* * *

The medical records, in the file of evidence, clearly

described an on-going, progressive and degenerative

condition of the spine over a period of more than 20

years.

[Plaintiff] had a successful return to gainful employment

after this injury. After [Plaintiff] recovered from back

surgery, Dr. Vanfleet [sic] returned him to full time,

regular duty on June 25, 2004, although he did not

return to work in the mine until September 7, 2004, due

to a work suspension. He continued to work in the mine

until he was terminated on November 22, 2004.

* * *

[Plaintiff] was a self-employed electrician from 1999 until

March 21, 2007, the date he stated that he became

disabled, almost four years after his mine accident. He

described his work as an electrician as heavy duty: lifting

50 or 100 pounds, carrying supplies and holding boxes

up to houses to be attached and operating machinery.

* * *

The onset date of his disability, the lack of records

defining functional limitations, the lack of medical

evidence of a traumatic injury, the gaps in medical care

and his return to work were critical factors in

determining that a causal link did not exist between his

accident and his Social Security award.

For these reasons, it would not be reasonable to conclude

that the 2003 mine accident caused or significantly

contributed to his total disability as defined by Social

Security.

R. 409-10. Regarding the ALJ’s diagnosis of “disorders of the back

(discogenic and degenerative),” the denial explanation noted that it

is a “broad diagnostic term used to describe osteoarthritis” and

further stated as follows:

[Plaintiff] had been diagnosed with lumbar spinal

stenosis in 1999, or earlier in the 1980’s [sic], which is

an age-related, progressive and degenerative condition.

* * *

After [Plaintiff] underwent [a] laminectomy; his condition

improved temporarily[,] but later he developed additional

symptoms. That speaks to the progressive and

changeable nature of discogenic and degenerative spine

conditions.

R. 411. Regarding the ALJ’s diagnosis of “neuropathy,” the denial

explanation stated as follows:

On February 11, 2004, Dr. Smucker completed an EMG

and found no peripheral (hands and feet) neuropathy.

Dr. Trudeau noted on February 6, 2007, that

electrodiagnostics revealed no evidence of peripheral

neuropathy. Repeat studies performed on November 27,

2007[] revealed right lateral cutaneous femoral

neuropathy[,] or meralgia paresthetica. This diagnosis

was made four years after the reported mine accident. In

this condition, the nerve is pinched where the hip meets

the pelvis, not in the spine.

Id.

IV. LEGAL STANDARD

Summary judgment is proper if the movant shows that no

genuine dispute exists as to any material fact and that the movant

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

The movant bears the initial responsibility of informing the Court of

the basis for the motion and identifying the evidence the movant

believes demonstrates the absence of any genuine dispute of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A

genuine dispute of material fact exists if a reasonable trier of fact

could find in favor of the nonmoving party. Carroll v. Lynch, 698

F.3d 561, 564 (7th Cir. 2012).

When ruling on a motion for summary judgment, the Court

must construe facts in the light most favorable to the nonmoving

party and draw all reasonable inferences in the nonmoving party’s

favor. Woodruff v. Mason, 542 F.3d 545, 550 (7th Cir. 2008). The

ordinary standards for summary judgment remain unchanged if the

parties have filed cross-motions for summary judgment; the Court

must “construe all inferences in favor of the party against whom the

motion under consideration is made.” Oneida Nation v. Vill. of

Hobart, Wis., 371 F. Supp. 3d 500, 508 (E.D. Wis. 2019) (quoting

Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 561–62 (7th Cir.

2002)).

V. ANALYSIS

Pursuant to 29 U.S.C. § 1132(a)(1)(B), Plaintiff challenges

Defendants’ decision to deny him disability benefits under the

Pension Plan. “[A] denial of benefits challenged under §

1132(a)(1)(B) is to be reviewed under a de novo standard unless the

benefit plan gives the administrator or fiduciary 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 (1989). If the plan gives the administrator or fiduciary the

authority to determine eligibility for benefits or construe the plan’s

terms, the decision to deny benefits is reviewed to determine

whether the decision is arbitrary and capricious. Jackman Fin.

Corp. v. Humana Ins. Co., 641 F.3d 860, 864 (7th Cir. 2011).

The parties agree that Defendants’ denial of disability benefits

to Plaintiff should be reviewed under the arbitrary-and-capricious

standard.4 This deferential standard, which, in ERISA cases, is

4 The Pension Plan states that “[t]he Trustees or such other named fiduciaries

as may be properly designated shall have full and final determination as to all

issues concerning eligibility for benefits.” Pension Plan (d/e 20-2), at 29.

synonymous with the abuse of discretion standard, is not a rubber

stamp. Holmstrom v. Metro. Life Ins. Co., 615 F.3d 758, 766, 767

n.7 (7th Cir. 2010). “[I]f fiduciaries or administrators of an ERISA

plan controvert the plain meaning of a plan, their actions are

arbitrary and capricious.” Swaback v. Am. Info. Techs. Corp., 103

F.3d 535, 540 (7th Cir. 1996).

Under the arbitrary-and-capricious standard, the Court will

overturn an administrator’s decision to deny disability benefits

“only where there is an absence of reasoning to support it.”

Jackman, 641 F.3d at 864. If an administrator offers a reasonable

explanation for its decision to deny disability benefits, that decision

will not be disturbed “even if another reasonable, but different,

interpretation may be made.” Krawczyk v. Harnischfeger Corp., 41

F.3d 276, 279 (7th Cir. 1994). So long as an administrator “makes

an informed judgment and articulates an explanation for it that is

satisfactory in light of the relevant facts,” the administrator’s

decision will be upheld. Loyola Univ. of Chicago v. Humana Ins.

Co., 996 F.2d 895, 898 (7th Cir. 1993).

A. Defendants’ Application of the “Substantially Responsible”

Causation Standard in Denying Plaintiff Disability Benefits

Under the Pension Plan Was Arbitrary and Capricious.

While the parties agree on the standard of review, they

disagree on the causation standard applicable to the determination

of whether Plaintiff is entitled to disability benefits under the

Pension Plan. With respect to disability benefits, the Pension Plan

states as follows:

A Participant who (a) has at least 10 years of signatory

service prior to retirement, and (b) becomes totally

disabled as a result of a mine accident occurring on or

after January 1, 2002, shall, upon retirement (hereinafter

“Disability Retirement”), be eligible for a pension while so

disabled. A Participant shall be considered to be totally

disabled only if by reason of such accident such

Participant is subsequently determined to be eligible for

Social Security Disability Insurance Benefits under Title

II of the Social Security Act or its successor.

Pension Plan (d/e 20-2), at 5. Defendants assert that for Plaintiff to

have become disabled “as a result of a mine accident,” Plaintiff’s

December 2003 mine accident must be “substantially responsible”

for Plaintiff’s disabilities. See, e.g., Response (d/e 20), at 29.

Plaintiff, relying on Cerentano v. UMWA Health and Retirement

Funds, 735 F.3d 976 (7th Cir. 2013), takes the position that he

need only establish a “causal link” between his disabilities and his

mine accident. See, e.g., Reply (d/e 24), at 42.

When a pension plan’s language is ambiguous, the trustees’

interpretation is entitled to deference. Cerentano, 735 F.3d at 981.

In Cerentano, the trustees, in denying the plaintiff’s application for

pension disability benefits, stated that the plaintiff’s Social Security

disability benefits were not “causally related” to the plaintiff’s mine

injuries and that the plaintiff did not establish a “causal link”

between his mine accidents and his Social Security disability

benefits. Id. Therefore, the Seventh Circuit, deferring to the

trustee’s interpretation of the plan, determined that the crucial

question was whether there was a “causal link” between the

plaintiff’s injuries from his mine accidents and the ALJ’s decision to

award him Social Security disability benefits. Id.

Defendants, in arguing that Plaintiff must establish that

Plaintiff’s mine accident was “substantially responsible” for

Plaintiff’s disability to receive a pension disability under the Pension

Plan, rely on DP-1(81), an interpretation of the Pension Plan by

Defendants. Reply (d/e 25), at 2. The Court must give deference to

Defendants’ plan interpretations, but DP-1(81) offers no support for

the position that the “substantially responsible” causation standard

applies here.

DP-1(81) states, in pertinent part, as follows:

Where a condition which resulted from a mine accident is

aggravated or compounded by another condition which

arises later and is not the direct result of a mine

accident, and the two conditions, combined, result in a

total disability, the mine worker will be considered

“totally disabled as the result of a mine accident,” if:

(a) the condition which resulted from a mine

accident contributed substantially to the total

disability;

(b) the condition which was not the result of a

mine accident was a foreseeable or normal

consequence of the condition which was the result

of a mine accident; and

(c) the existence of the condition which resulted

from a mine accident substantially increased the

probability that the condition did not result from a

mine accident would occur.

Response (d/e 24), Ex. 1.

However, this interpretation of the Pension Plan—requiring

that a mine accident injury contribute substantially to the worker’s

total disability in order for the worker to be eligible for disability

benefits under the Pension Plan—is applicable only where the mine

accident injury predates the condition not related to the mine

accident and the two combine to render the worker totally disabled.

In this case, Plaintiff already had a preexisting back condition when

his December 2003 mine accident occurred. Therefore, the

language from DP-1(81) that applies to Plaintiff’s request for

pension disability benefits is the following:

If a condition or injury resulting from a mine accident

aggravates or combines with a pre-existing condition or

prior injury which did not result from a mine accident

and the mine worker thereby becomes totally disabled,

the mine worker is considered “totally disabled as the

result of a mine accident.”

Id. (emphasis added). As a result, Plaintiff need only show that his

injury stemming from the December 2003 mine accident aggravated

or combined with his preexisting back condition to render him

totally disabled in order to be eligible for disability benefits under

the Pension Plan.

In an effort to convince the Court that the “substantially

responsible” causation standard applies in this case, Defendants

cite several cases from the Fourth, Sixth, and Eleventh Circuits.

These cases from outside the Seventh Circuit are not binding on the

Court. See United States v. Glaser, 14 F.3d 1213, 1216 (7th Cir.

1994) (noting that opinions bind a court “only within a vertical

hierarchy”).

Nor do these cases persuade the Court that Plaintiff is eligible

for disability benefits under the Pension Plan only if his December

2003 mine accident was “substantially responsible” for Plaintiff’s

disability. In most of these cases, the “substantially responsible”

causation standard is determined to apply based on previous cases

where the standard was applied, not an analysis of documentation

interpreting the relevant pension plan. See Green v. Holland, 480

F.3d 1216, 1219 (11th Cir. 2007); Ball v. Holland, 142 F. App’x 860,

862 (6th Cir. 2005); McCoy v. Holland, 364 F.3d 166, 170 (4th Cir.

2004); Boyd v. Trustees of United Mine Workers Health & Ret.

Funds, 873 F.2d 57, 59 (4th Cir. 1989); Robertson v. Connors, 848

F.2d 472, 475 (4th Cir. 1988).

In the only case cited by Defendants in which a provision

interpreting the relevant pension plan is discussed, the Eleventh

Circuit specifically notes that the provision applies only where a “a

mining-related injury [] is ‘aggravated or compounded’ by a later

condition, unrelated to the mine accident.” Wayton v. United Mine

Workers of Am. Health & Ret. Funds, 568 F. App'x 738, 740 (11th

Cir. 2014) (emphasis added). As explained above, this case does

not involve a mine injury that was aggravated by a later condition;

rather, Plaintiff’s back issues preexisted his December 2003 mine

accident. Therefore, under Defendants’ own interpretation of the

Pension Plan, Plaintiff need not show that his preexisting back

condition was substantially related to his disability in order to be

eligible for disability benefits.

In denying Plaintiff pension disability benefits under the

Pension Plan, Defendants determined that “it would not be

reasonable to conclude that [Plaintiff’s] 2003 mine accident caused

or significantly contributed to [Plaintiff’s] total disability as defined

by Social Security.” R. 410. Based on the language of DP-1(81), on

which Defendants rely in their arguments to the Court, Defendants’

decision to apply the “substantially responsible” causation standard

was unreasonable and an abuse of discretion. See Swaback, 103

F.3d at 540. Plaintiff need only show that the injury from his

December 2003 mine accident aggravated or combined with his

preexisting back condition, thereby rendering him totally disabled.

Defendants’ decision to apply the wrong causation standard in

determining whether Plaintiff is entitled to disability benefits under

the Pension Plan would justify a remand for Defendants to conduct

another eligibility determination. However, the Court will instead

apply the appropriate causation standard and determine whether

Defendants’ decision to deny Plaintiff disability benefits was

arbitrary or capricious.

The Court’s decision to forego another eligibility determination

by Defendants is supported by Defendant’s explanation in denying

Plaintiff disability benefits under the Pension Plan. Indeed, the

explanation contains language indicating that the result will be the

same if Defendants apply the correct causation standard. See R.

409 (“It is reasonable to assume that [Plaintiff] suffered a temporary

worsening of an existing degenerative spine condition when he

strained his back on December 16, 2003 . . . .”); R. 410 (“'The onset

date of [Plaintiff’s] disability, the lack of records defining functional

limitations, the lack of medical evidence of a traumatic injury, the

gaps in medical care and his return to work were critical factors in

determining that a causal link did not exist between his accident

and his Social Security award.”); R. 411 (“[Plaintiff] failed to

establish a link between his 2003 mine accident and his total

disability as defined by Social Security.”); Id. (“There was no link

found between [Plaintiff’s neuropathy] diagnosis and a mine

accident.”); R. 412 (“The medical records of evidence fail to show a

causal relationship between the impairments that are the basis of

[Plaintiff’s] Social Security disability and the mine accident that

occurred on December 16, 2003.”).

In addition, although Defendants rely heavily on the

“substantially responsible” causation standard in their summary

judgment filings, that standard is referenced only once in the

explanation for Defendants’ denial of disability benefits. The Court

will analyze Defendants’ denial of pension disability benefits as if

they had applied the applicable causation standard—whether

Plaintiff’s December 2003 mine accident aggravated or combined

with his preexisting back condition to render Plaintiff disabled.

B. Defendants’ Decision to Deny Plaintiff Disability Benefits

Under the Pension Plan Was Arbitrary and Capricious.

Two days after a December 2003 mine accident, Plaintiff saw

Dr. Chapa complaining of low back pain radiating down the right

leg and intermittent right-leg numbness. Four days later, Plaintiff

saw Dr. Chapa and again reported pain and numbness in the right

leg. Although Plaintiff was back at work at this time, he was not

bending, lifting, or stooping. Dr. Chapa’s impression changed from

“lumbosacral sprain” to “lumbar disk with radiculopathy.”

In February 2004, Plaintiff told Dr. Smucker that Plaintiff’s

low back pain was exacerbated by the December 2003 accident,

which resulted in Plaintiff experiencing a sharp pain in the right leg.

Plaintiff saw Dr. Chapa and reported having back pain doing

restricted work. In April 2004, just four months after the December

2003 mine accident, Plaintiff complained of low back pain to Dr.

Mack, who felt that Plaintiff needed a “bilateral decompression and

possibly a posterolateral fusion.”

In May 2004, Plaintiff, whose preoperative diagnosis was

lumbar radiculopathy, underwent L3-4 and L4-4 bilateral

laminectomies performed by Dr. Van Fleet. The following month,

Plaintiff reported no “significant difficulties” after the surgery except

for “occasional burning into the leg,” and Dr. Van Fleet released

Plaintiff to full duty. In August 2004, Plaintiff reported occasional

numbness in the right leg.

In September 2004, Plaintiff returned to work after serving a

work suspension. However, less than two weeks after returning to

work, Plaintiff complained to Dr. Chapa about back pain that had

started a few weeks prior, pain that was radiating to the right leg

and worse than the pain prior to Plaintiff’s surgery. This renewed

pain led Plaintiff to take a different position at work. At the end of

September 2004, Plaintiff was still reporting significant back pain

and indicating that his back surgery had not helped him much.

After complaints of pain in the low back and right leg in

October and November of 2004, Plaintiff was restricted to light-duty

work. Plaintiff continued to complain of back pain throughout

December 2004. In February 2005, Dr. Mack recommended

another decompression of Plaintiff’s back and, possibly, a fusion.

In September 2005, Plaintiff reported “on and off” back pain and

occasional numbness in the right leg.

In January 2007, Plaintiff reported to Dr. Mack pain in the

lower back and right leg that Plaintiff rated as a 9 on a scale from 1

to 10. Plaintiff again reported severe pain in the lower back and

right leg in February 2007, at which time Dr. Mack recommended a

partial laminectomy. In March 2007, Dr. Mack performed a

decompressive laminectomy with posterolateral fusion and disk

removal at L4-5. Dr. Mack encountered considerable scar tissue

during Plaintiff’s surgery.

Defendants abused their discretion in failing to conclude that

Plaintiff’s SSA disability determination was the result of Plaintiff’s

preexisting back condition being aggravated by Plaintiff’s December

2003 mine accident. In denying Plaintiff pension disability benefits,

Defendants rely heavily on the fact that Plaintiff’s degenerative back

condition was diagnosed prior to his mine accident and referenced

in the medical records related to Plaintiff’s treatment beginning in

December 2003. But Defendants fail to give any weight to the fact

that Plaintiff’s back condition never prevented Plaintiff from working

for Freeman prior to December 2003. Only after the December

2003 accident did Plaintiff begin to visit doctors with complaints of

severe back pain that went down into the right leg and intermittent

numbness in the right leg, issues that eventually rendered Plaintiff

unable to work in the mine at full duty. Only after the December

2003 accident was Plaintiff required to have not one, but two

surgeries for the purpose of alleviating his back pain. The only

reasonable conclusion to be drawn is that Plaintiff’s injury from the

December 2003 accident aggravated Plaintiff’s preexisting back

condition to render Plaintiff disabled.

Defendants’ refusal to award Plaintiff pension disability

benefits also relies on Dr. Leventhal’s opinion that Plaintiff’s

December 2003 accident created a mere temporary aggravation of

Plaintiff’s preexisting back condition. However, in Defendants’

analysis as to whether Plaintiff was disabled as a result of his mine

accident, Defendants fail to note that, in September 2004, Dr. Mack

opined that Plaintiff’s December 2003 accident was a cause of

Plaintiff’s May 2004 surgery. Also ignored in Defendants’ causation

analysis is that, in January 2004, Dr. Chapa opined that Plaintiff’s

back pain and “lower extremity symptoms” were related to Plaintiff’s

December 2003 injury and that, in June 2009, Dr. Lange

determined that Plaintiff’s “residual L5 radiculopathy” and “right

lateral femoral cutaneous neuropathy” are both related, “in one way

or the other,” to Plaintiff’s December 2003 accident.

Another important aspect of this case gets almost no play in

Defendants’ causation analysis: In August 2005, an Arbitrator for

the Illinois Workers’ Compensation Commission awarded Plaintiff

temporary total disability benefits, finding that Plaintiff’s May 2004

surgery was causally related to Plaintiff’s December 2003 accident

and that another back surgery was proper and causally related to

the accident. The Arbitrator’s decision took the opinions of Dr.

Mack, Dr. Chapa, and Dr. Leventhal into account, but only Dr.

Leventhal’s opinions are referenced in the causation analysis

adopted by Defendants in denying Plaintiff’s application for pension

disability benefits.5 Further, in August 2007, the Commission

affirmed the August 2005 decision, finding a causal relationship

between Plaintiff’s December 2003 accident and his “condition of ill-

being.”

The only other portion of the causation analysis adopted by

Defendants in denying Plaintiff’s application for pension disability

benefits related to the Arbitrator’s decision states as follows: “The

Funds does [sic] not rely on Workers’ Compensation guidelines or

regulations when determining eligibility for a Funds Disability

Pension.” R. 410. Defendants are not required to defer to the

Commission’s determinations with respect to causation, but

Defendants’ failure to include a thorough discussion of the

Arbitrator’s decision in their causation analysis was arbitrary and

5 The causation opinions of Dr. Mack and Dr. Chapa are referenced in an

earlier section of the explanation for Defendants’ denial of Plaintiff’s application

for disability benefits under the Pension Plan. See R. 397.

capricious. See Holmstrom, 615 F.3d at 774 (“Administrators may

not arbitrarily refuse to credit a claimant’s reliable evidence . . . .”).

Other facts on which Defendants’ decision relies indicate that

the decision was arbitrary and capricious. In finding that Plaintiff

is not eligible for disability benefits under the Pension Plan,

Defendants rely on the fact that there are no documents within the

administrative record indicating that Plaintiff complained of back

pain between September 13, 2005 and January 26, 2007, a period

of time falling between Plaintiff’s first back surgery and his second

back surgery. However, what Defendants ignore in their causation

analysis is that Plaintiff’s complaints of pain in the lower back and

right leg after his first surgery had caused Dr. Mack to recommend

a second back surgery in February 2005—six months prior to the

gap in Plaintiff’s medical treatment.

Defendants also point to the fact that Plaintiff returned to

work in the mine for Freeman after his December 2003 accident as

a basis to deny Plaintiff pension disability benefits. However,

Defendants’ causation analysis, while noting that Plaintiff returned

to work shortly after his mine accident, fails to mention that

Plaintiff was off work for a significant period of time prior to and

after his first surgery. And while Defendants noted that Plaintiff

experienced pain shortly after returning to work in September 2004,

Defendants failed to mention that Plaintiff characterized this pain

as worse than before the surgery and eventually switched positions

at the mine in an effort to reduce his back pain. Defendants

characterize these developments as Plaintiff’s “successful return to

gainful employment.” R. 410.

In addition, Defendants cite McCoy v. Holland, 364 F.3d 166

(4th Cir. 2004), as support for their decision to deny Plaintiff

disability benefits under the Pension Plan. Response (d/e 22), at 9-

11. In McCoy, the plaintiff was awarded Social Security disability

benefits based on a primary diagnosis of “severe major affective

disorder” and a second diagnosis of “degenerative disc disease of

the cervical and lumbar spine.” 364 F.3d at 169. The trustees

subsequently denied the plaintiff’s application for pension disability

benefits, finding that the “medical evidence did not establish a

causal link” between the plaintiff’s mine accident and his disabling

conditions. Id. The plaintiff filed suit, and the district court

granted the plaintiff’s motion for summary judgment and ordered

the trustees to award the plaintiff a disability pension. Id.

On appeal, the Fourth Circuit reversed, finding that the

trustees’ decision to deny the plaintiff pension disability benefits

was supported by substantial evidence. Id. at 171-72. The court

noted that the plaintiff became disabled more than two years after

the mine accident, continued working in the mine after the

accident, worked as a carpenter after being laid off from the mine,

and had been “diagnosed with degenerative disc disease on

numerous occasions by several physicians.” Id. at 171.

Defendants find the facts in McCoy to be “remarkably similar”

to the facts in this case. Response (d/e 22), at 10. Defendants

point out that Plaintiff’s disability onset date was over three years

after his December 2003 mine accident, that Plaintiff continued

working in the mine and as an electrician after his accident, and

that Plaintiff was “diagnosed with degenerative back conditions on

numerous occasions by several different physicians.” Id. at 10-11.

However, Defendants ignore several relevant facts from McCoy

that serve to distinguish that case from this one. In McCoy, there

was no evidence in the record that the plaintiff had “sought any

medical treatment relating to the mine accident between May 1993,

shortly after the mine accident, and May 1995.” 364 F.3d at 171.

There was also no evidence that the plaintiff “was experiencing

neck, back or shoulder pain between May 1993 and April 1995.”

Id. Further, the only doctor who opined that the plaintiff’s disability

was related to the plaintiff’s mine accident did not examine the

plaintiff until more than six years after the accident. Id.

In contrast, Plaintiff sought medical treatment for pain in his

low back and right leg as well as intermittent numbness in his right

leg on numerous occasions beginning shortly after the December

2003 mine accident. In addition, two of the doctors who treated

Plaintiff after the mine accident, Dr. Chapa and Dr. Mack, opined

that Plaintiff’s pain and the first surgery performed to alleviate that

pain were causally related to the accident. Dr. Lange, a doctor

hired by Freeman to examine Plaintiff, also opined that there was a

causal connection between Plaintiff’s December 2003 mine accident

and Plaintiff’s back issues.

Another case on which Defendants rely in responding to

Plaintiff’s summary judgment motion, Pacconi v. Trustees of the

United Mine Workers of Am., 264 F. App’x 216 (3d Cir. 2008), is

similarly distinguishable. In Pacconi, the Third Circuit held that

the trustees’ decision to deny pension disability benefits was

supported by the record. 264 F. App’x at 218. This holding was

based on the fact that the plaintiff did not receive medical treatment

until five months after his accident and that the plaintiff did not

miss any work due to the accident. Id.

Like the facts in McCoy, the facts in Pacconi are easily

distinguishable from the undisputed facts in this case. Plaintiff

began receiving medical care a couple of days after his December

2003 accident, care which continued for some time and included

two surgeries. Plaintiff also missed several months of work due to

his back pain, had to switch positions at work once he returned due

to increased pain, and was, at one point, restricted to light duty.

In conclusion, Defendants, in addition to applying the wrong

causation standard to Plaintiff’s application for disability benefits

under the Pension Plan, adopted a causation analysis that failed to

credit important pieces of the administrative record, evidence that

shows that Plaintiff’s December 2003 mine accident aggravated his

preexisting back condition and, eventually, rendered him disabled.

The result of this unreasonable analysis was a denial of disability

benefits under the Pension Plan by Defendants that was arbitrary

and capricious.

C. An Award of Disability Benefits Under the Pension Plan Is

the Appropriate Remedy.

“The most common remedy when an ERISA plan

administrator’s benefits decision is deemed arbitrary is to remand

the matter for a fresh administrative decision.” Lacko v. United of

Omaha Life Ins. Co., 926 F.3d 432, 447 (7th Cir. 2019). However,

no remand for further findings or explanations is required where

the record “contains such powerfully persuasive evidence that the

only determination the plan administrator could reasonably make is

that the claimant is disabled.” Majeski v. Metro. Life Ins. Co., 590

F.3d 478, 484 (7th Cir. 2009).

The material facts in this case are undisputed and not subject

to change. The Court finds that the record in this case can lead to

only one reasonable conclusion: Plaintiff’s December 2003 mine

accident aggravated his preexisting back condition and thereby

rendered him disabled. Accordingly, rather than remand this case

for another determination by Defendants as to whether Plaintiff is

entitled to disability benefits under the Pension Plan. The amount

of pension disability benefits to be awarded by the Court will be

determined prior to entry of judgment in favor of Plaintiff and

against Defendants.

VI. CONCLUSION

For the reasons stated, Plaintiff’s Motion for Summary

Judgment (d/e 21) is GRANTED. Accordingly, Defendants’ Motion

for Summary Judgment (d/e 19) is DENIED. Plaintiff is hereby

awarded disability benefits under the United Mine Workers of

America 1974 Pension Plan that have accrued from March 21, 2007

to the present. Plaintiff’s disability benefits shall continue to accrue

until such time as Defendants can establish that Plaintiff is no

longer entitled to Social Security disability benefits.

The parties are DIRECTED to engage in a good-faith effort to

agree on the amount of pension disability benefits Plaintiff is owed

as of the date of this Opinion and to submit a stipulation as to this

amount by Monday, March 23, 2020. If the parties are unable to

reach an agreement as to the amount of pension disability benefits,

Plaintiff shall file a brief stating his position as to the amount owed

by Monday, March 30, 2020. Defendants shall file a response to

Plaintiff’s brief by Monday, April 6, 2020.

Plaintiff is DIRECTED file a brief, supported by sufficient

documentation, regarding his requests for prejudgment interest,

costs, and reasonable attorney’s fees by Monday, March 23, 2020.

Any response by Defendants to the amounts requested by Plaintiff

for prejudgment interest, costs, or attorney’s fees shall be filed by

Monday, April 6, 2020. Even if Defendants do not believe that

prejudgment interest is warranted, the parties are DIRECTED to

engage in a good-faith effort to agree on the appropriate amount of

prejudgment interest. The Final Pretrial Conference set for March

2, 2020, at 3:00 p.m. is VACATED. The Bench Trial set for March

17, 2020, at 9:00 a.m. is VACATED. The Court schedules a

telephone status hearing for Monday, April 13, 2020, at 10:00 a.m.

ENTER: February 27, 2020

/s/ Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE