Você está na página 1de 18

Case 1:08-cv-00651-SS Document 1 Filed 08/29/2008 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT


FILED
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION AUG 2 9 2008
CLERK, U.S. 0 ST: ICT COURT
WESTERN DIS T O~E;~
GENE ATKINS, § BY
--~~~~--
Plaintiff §
§
v. § CIVIL ACTION NO.
§
BERT BELL/PETE ROZELLE NFL §
PLAYER RETIREMENT
PLAN AND THE NFL
§
§
AOBCA 651SS
SUPPLEMENTAL DISABILITY PLAN, §
Defendants §

PLAINTIFF'S ORIGINAL COMPLAINT

TO THE HONORABLE JUDGE OF SAID COURT:

GENE ATKINS, Plaintiff, complains that the Bert Bell/Pete Rozelle NFL Retirement

Plan ("Retirement Plan") and the NFL Supplemental Disability Plan ("Supplemental Disability

Plan") are liable to him for additional disability benefits because his disabilities arise from playing

NFL football. The claims administrator for both plans, the Retirement Board of the Bert

Bell/Pete Rozelle NFL Player Retirement Plan (the "Board"), the body that provides the

fiduciary review and final decision as to disability claims brought under the Retirement Plan by

former NFL players such as Atkins, determined that Atkins' disabling conditions are not related

to football. This determination by the Board is incorrect and is not supported by substantial

evidence. In addition, on behalf of the Retirement Plan and the Disability Plan, Atkins asserts

that the Board breaches its fiduciary duty by not providing a full andfair review of denied claims

as required by paragraph 8.8 of the Retirement Plan and by 29 U.S.c. 1133 of the Employee

R~tirement Income Security Act of 1974 ("ERISA").

1
Case 1:08-cv-00651-SS Document 1 Filed 08/29/2008 Page 2 of 18

I. PARTIES

1. Plaintiff Gene Atkins is a resident of Round Rock, Travis County, Texas.

2. Defendant Retirement Plan can be served with citation by serving the agent for

service that is appointed in the plan, the Retirement Board, the joint Board of Trustees for the

Retirement Plan, 200 St. Paul Place, Suite 2420, Baltimore, MD 21202-2040.

3. Defendant Disability Plan can be served with citation by serving the agent for

service that is appointed in the plan, the Disability Board, the joint Board of Trustees for the

Disability Plan, 200 St. Paul Place, Suite 2420, Baltimore MD 21202-2040.

II. JURISDICTION AND VENUE

4. The Court has jurisdiction because this suit alleges that the Retirement Board

abused its discretion in classifying Atkins' disability benefits as inactive benefits, meaning that

the Board decided that Atkins' disability was unrelated to NFL football. The Retirement Plan

and Disability Plan from which Atkins seeks additional benefits are employee welfare benefit

plans subject to ERISA. This court has jurisdiction over this claim for improper classification

of disability benefits under 29 U.S.CA. 1132(e)(1) of the ERISA. Venue is proper in the

Western District of Texas, Travis County, in accordance with 29 U.S.C 1132(e)(2) as Atkins is

seeking benefits which the plans are obligated to pay to him at his residence in Round Rock,

Travis County, Texas.

III. STATEMENT OF FACTS

5. Gene Atkins was born in Tallahassee, Florida in 1964. He attended Florida A&M,

which is in Tallahassee, on a football scholarship beginning in the fall of 1983. In 1987, before

he graduated from Florida A&M, he was drafted by the New Orleans Saints of the National

Football League. Even though he played professional football for the Saints during the years

2
Case 1:08-cv-00651-SS Document 1 Filed 08/29/2008 Page 3 of 18

1987 and 1988, he fmished his education at A&M and was awarded a Bachelor of Science

Degree from A&M on April 28, 1989.

6. Atkins played for ten seasons in the NFL. From 1987 until 1993, he played

cornerback and safety for the New Orleans Saints. He started every game. From 1988 through

1991, he returned kick-offs and punts in addition to playing cornerback and safety. From 1994

through 1996, Atkins played cornerback and safety for the Miami Dolphins. During his playing

days Atkins was known as "Mean Gene" because he hit opposing players so hard.

7. Atkins retired in 1996. He engaged in various types of work after that, including

ownership of a construction company, ownership of a sporting goods store, coaching, and

starting a semi-professional football team. During his playing days, he had suffered from some

serious injuries, including many concussions and injuries to his neck and shoulders. By 2003

and 2004, he was no longer able to function at any full time job.

8. In December of 2004 Atkins applied for disability benefits under the Bert Bell/Pete

Rozelle NFL Player Retirement Plan. Within his application, he described three conditions

which caused him to be disabled, all ofwhich he attributed to his ten years playing NFL football:

"1) Unable to lift right shoulder or move arm to functional positions


cannot reach up or more than 90 degrees to either side. Had
several dislocated shoulder injuries and eventually had a pin
inserted to keep shoulder in place. The pin was removed in
1996 because of chronic pain in the area. I have trouble driving
because its difficult to turn the steering wheel;

2) Chronic constant pain at the base of head and neck. Pain sometimes
radiates through arms and my hands, feels like plastic. Everything I
touch feels numb and I drop objects I try and pick up. Unbearable
pain most days. I had several stingers while playing but did not feel
any affects until I turned 38 years old;

3) Mood swings-because of my inability to function without constant


pain, my mood has been effected. Depression over the physical

3
Case 1:08-cv-00651-SS Document 1 Filed 08/29/2008 Page 4 of 18

condition of my body and not being able to work."

Atkins submitted a letter with his application in efforts to further explain his condition. The last

paragraph reads as follows:

"I suffer from depression, and probably have for several years, but was
in denial. 1 have not sought any medical attention, because of my lack
of insurance coverage. 1 have not been able to work, therefore 1 am not
covered by any insurance. 1 am now seeking disability income to recover
and hopefully get better to where 1 can function and take care of my
children. 1 am in great need of immediate medical attention and would
welcome the opportunity be seen by your physician in order to receive the
help 1 need."

9. Atkins was then sent to various physicians selected by the Retirement Plan. The fIrst

physician that he visited was Raul Isern, Jr., M.D. in Beaumont. He saw Dr. Isern on January

4,2005. Dr. Isern never turned in a report to the NFL subsequent to his examination ofAtkins,

at least according to Atkins' claim flie.

10. On January 11, 2005, at the Retirement Plan's request, Atkins was examined by

Tarek Souryal, M.D., an orthopedic specialist in Dallas. Dr. Souryal indicated in his report to

the NFL Retirement Plan, completed on a form created by the plan and sent to Souryal, that he

thought Atkins could, from an orthopedic perspective, perform many tasks which did not

involve heavy lifting, but indicated that "headaches and arm/hand numbness may signify non-

orthopedic problem. Should have a neurologic eval." Dr. Souryal indicated in the NFL form

that he was asked to complete that Atkins had impairments to his neck and shoulder, and that

these impairments were caused by playing NFL football.

11. On May 16, and May 20, 2005, the Retirement Plan had Atkins examined by Keith

Kessler, M.D. a psychiatrist. Kessler concluded that Atkins was totally disabled as a result of

the following impairments: poor cognitive functioning, chronic pain with depressed mood,

4
Case 1:08-cv-00651-SS Document 1 Filed 08/29/2008 Page 5 of 18

chronic headaches, and possible neurologic deficits. Kessler indicated that it was his opinion

that the chronic pain with depressed mood, chronic headaches, and possible neurologic deficits

were all related to playing football. Like the orthopedic specialist Dr. Souryal, Dr. Kessler

indicated that Atkins should be examined by a neurologist. Dr. Kessler also indicated that

Atkins needed to be seen by a pain specialist.

12. After these reports were obtained by the Plan, the initial decision-maker for the plan,

the Disability Initial Claims Committee ("Committee"), deadlocked in its decision whether

Atkins was disabled. It reported this to Atkins by letter dated June 15,2005, which indicated

that since the Committee had deadlocked, Atkins' application for disability benefits had been

denied by virtue of Retirement Plan section 8.6, which provides that "if the members of the

Disability Initial Claims Committee are deadlocked with respect to a decision as to whether a

claimant is entitled to a benefit, the claim will be deemed denied."

13. Atkins appealed the Committee's decision by letter dated June 22, 2005. In

response, the NFL Retirement Plan sent Atkins to another orthopedic specialist and a

neurologist. On July 11, 2005, Atkins was examined by J. Bryan Williamson, M.D., an

orthopedic specialist in Houston. Dr. Williamson examined Atkins for approximately 30

minutes and indicated on the NFL Retirement Plan's physician report form that Atkins had

impairments to his neck, right shoulder, and thumb, all of which were caused by football, but

Dr. Williamson indicated that he felt Atkins would be able to engage in a light duty or sedentary

occupation.

14. Atkins was examined by Raymond Martin, a neurologist also located in Houston, on

July 14, 2005. Dr. Martin determined that Atkins was "totally disabled to the extent that he is

substantially unable to engage in any occupation for remuneration or profit,", i.e. disabled as that

5
Case 1:08-cv-00651-SS Document 1 Filed 08/29/2008 Page 6 of 18

tenn was defined by the Retirement Plan. Dr. Martin indicated that the impainnents which

caused Atkins to be disabled were bilateral numbness in hands, frozen right shoulder, neck pain

and limited range of motion in the neck, chronic headaches, and memory problems. On the

NFL fonn, Dr. Martin indicated that the numbness in Atkins' hands, his frozen right shoulder,

and his neck pain all resulted from playing football. Dr. Martin was unable to say whether

Atkins' memory problems were related to football.

15. During this time, the summer of2005, Atkins attempted full-time work. He applied

and got a job at a Target store near the apartment in Round Rock, Texas where Atkins lived with

his wife, Patricia, and their sons Jason and Jared. His responsibilities were to hang signs and

perfonn other tasks. Due to his constant headaches, shoulder and neck pain, limited range of

motion, and numbness in his hands, he was not able to perfonn the tasks required of him and

was forced to quit three or four months after being hired.

16. On October 28 t h, 2005, approximately 10 months after Atkins had submitted his

claim, the body that considers appeals of denied claims for the Retirement Plan, the Retirement

Board ("Board") of the Retirement Plan, advised Atkins that it had deadlocked, just as the

Committee had deadlocked in considering his initial claim.! Atkins was advised in the letter that

pursuant to plan provision 8.3(a) his claim would be referred to a Medical Advisory Physician

("MAP") for a determination of disability that would be binding on the Board.

17. Atkins was sent to see Thomas Boll, Ph.D. on December 29, 2005. Dr. Boll is a

neuropsychologist. After having his assistant administer a test to Atkins by having Atkins

JIhe Board has six voting members, three of whom are selected by the NFLPA (National
Football League Players' Association) and three of whom are selected by the NFL Management
Council.

6
Case 1:08-cv-00651-SS Document 1 Filed 08/29/2008 Page 7 of 18

answer a long series of questions, Dr. Boll detennined that Atkins was disabled due to the

impairments of illiteracy and borderline mental ability, major depression, and pain. Dr. Boll

indicated that illiteracy and borderline mental ability was not related to football, that it could not

be detennined whether Atkins' depression was related to football, but indicated that his pain was

related to football.

18. By letter dated February 23, 2006, the Board notified Atkins that his claim for

disability benefits had been approved. However, the Board also detennined that his disability

was unrelated to football. Accordingly, in the parlance of the Retirement Plan, he was approved

for "inactive" total and permanent disability. The Board found the effective date of disability,

i.e. the date disability payments would commence, as being June 1,2005.

The Retirement Plan's Disability Categories:


Triggering the Supplemental Disability Plan

19. Although the details of the plans trend towards providing leverage for the denial of

benefits rather than their approval, the NFL Retirement Plan and the NFL Player Supplemental

Disability Plan, by their covers, are promoted as a safety net for ex-NFL players such as Mr.

Atkins, and they are intertwined. If an ex-player is disabled, but that disability is deemed to have

been caused by disease or injury unrelated to football, the Retirement Plan provides a formula

for disability benefits for that employee but the Supplemental Disability Plan is not triggered.

This is what occurred to Atkins in February of 2006. Atkins had a net credit for ten seasons

with the NFL. In accordance with the formula within the Retirement Plan, and providing for

cost of living adjustments and plan modifications as of April 1, 2008, Atkins is paid $1,225.00

per month and his ex-wife is paid the same amount pursuant to a divorce decree which divides

7
Case 1:08-cv-00651-SS Document 1 Filed 08/29/2008 Page 8 of 18

any payments from the Retirement Plan 50/50. 2 Most disability plans pay the disabled employee

approximately 60% of his or her pre-disability earnings up to a certain cap, the cap often in the

neighborhood of $20,000.00 per month for executives, most of whom, during their working

days, earned far less than most NFL players. Benefits are generally not reduced or eliminated

when the disability is not work-related. The NFL treats its former employees who become

disabled much differently. For those that become disabled from a condition deemed to be

unrelated to football, the players are paid a pittance of their former earnings. The Retirement

Plan currently pays Atkins disability benefits that are approximately 3% of the salary he was

earning at the end of his football career. Had the Board approved Atkins for disability benefits

that were "football degenerative", meaning that the disability is deemed to have arisen out of

football activities, he would be paid substantially more under the Retirement Plan and this

decision by the Board would also trigger a substantial monthly payment to Atkins under the

Supplemental Disability Plan.

20. Atkins was relieved to finally receive some disability benefits from the Retirement

Plan after more than a year of endeavor, having visited six different specialists chosen by the

administrators of the Retirement Plan. However, he was shocked to learn that the Board did

not consider his disability to arise out of football activities. He promptly appealed the

categorization of his disability by letter dated March 3, 2006.

21. Atkins received a letter dated March 21,2006, acknowledging his appeal and advising

him that his appeal would be considered by the Board during its meeting on May 10t h, 2006. At

the May 10 th meeting, the Board decided that it would like the opinion of another neurologist,

2Atkins' disability payments are also reduced 25% because he opted for an early payment
benefit of a portion of his retirement, receiving 25% of its present value in a lump sum.

8
Case 1:08-cv-00651-SS Document 1 Filed 08/29/2008 Page 9 of 18

as it was apparently dissatisfied with the opinions of the neurologist that the Retirement Plan

administrators had sent him to in July of2005, Dr. Raymond Martin, who found that most of

his impairments were caused by playing football. The Board withheld its decision on Atkins'

appeal and sent Atkins to a seventh doctor.

22. At the request of the NFL Retirement Plan, Atkins was then seen by Robert Gilbert,

M.D., a neurologist in Atlanta, on June 12,2006. Atkins brought medical records and fllms with

him, but Dr. Gilbert advised that he didn't need to see them. Dr. Gilbert conducted a physical

exam on Atkins that lasted two or three minutes and then told Atkins that there was nothing

wrong with him. Dr. Gilbert's notes reflect that he spent a total of five minutes with Atkins. 3

In his notes, Dr. Gilbert indicates that Atkins has no neck pain or neck stiffness, even though

Atkins came in complaining about chronic neck pain and neck stiffness. In the Retirement Plan

form, Dr. Gilbert writes that Atkins has "subjective complaints of pain but MRI and NC/EMG

studies show relatively mild abnormalities including carpal tunnel and cervical radiculopathy."

This contradicts the findings of previous physicians who had examined Atkins. A year earlier,

after taking his own x-rays of Atkins' neck and shoulder, orthopedist J. Bryan Williamson

described the degenerative changes in Atkins' neck as significant.

23. The Retirement Plan director, Sarah E. Gaunt, sent Atkins a letter datedJuly 26, 2006,

indicating that the Board had denied his appeal, and that Atkins' benefits would continue to be

classified as not arising out of his football activities, i.e. inactive.

24. Atkins, depressed due to his constant pain and troubled by what was perceived by him

and others around him, such as his wife Patricia, as a gradual decline in memory, concentration,

Atkins confinns in his videotaped interview submitted with his last appeal that he spent
3
approximately 5 minutes with Dr. Gilbert.

9
Case 1:08-cv-00651-SS Document 1 Filed 08/29/2008 Page 10 of 18

and cognitive skills, went to see a neurosurgeon named Robert Cantu, M.D. in February of 2007.

Dr. Cantu practices in Maryland and specializes in post-concussion injury to athletes such as

Atkins. After conducting a number of tests on Atkins, Cantu diagnosed Atkins with post-

concussion syndrome and early traumatic encephalopathy.4 Dr. Cantu indicated that Atkins was

not able to work due to demented mental status caused by head trauma from professional

football activities and that this condition was permanent.

25. On August 23, 2007, Atkins, now represented by counsel, requested that the

categorization of his disability be reconsidered by the Retirement Plan. Atkins supplied the

Retirement Plan Committee with a number of documents in support of his request for

reconsideration, including Dr. Cantu's records. By letter dated October 5, 2007, Atkins was

informed that the Committee denied Atkins' request for reconsideration and reclassification, but

advised Atkins that he could appeal the determination. Atkins appealed the decision by letter

dated February 11, 2008, and provided additional support for his appeal, including interviews

with Atkins and his wife Patricia along with a notice that Atkins had received from the Social

Security Administration awarding him disability benefits. The decision by the Administrative

LawJudge with the Social Security Administration's Office ofDisability Adjudication and Review

found that Atkins had been disabled since January 1, 1998. The Judge based his decision on the

opinion of Dr. Cantu, that Atkins had a declining mental status due to post-concussion

syndrome, and Dr. Ronald DeVere, who had seen Atkins in May of 2007, and found that Atkins

had a significantly slowed mental functioning and problems

4"Encephalopathy" is generalized brain dysfunction marked by varying degrees of


impairment of speech, cognition, orientation, and arousal. Taber's Cyclopedic Medical
Dictionary, 20th Edition, page 698.

10
Case 1:08-cv-00651-SS Document 1 Filed 08/29/2008 Page 11 of 18

carrying/lifting/fingering/ climbing/reaching.

26. Dr. DeVere's records, five pages, were the only additional medical records submitted

with Atkins' appeal. The bulk of the records that supported his request for reconsideration had

been provided the Committee in August of 2007.

27. The benefits coordinator for the Plan, Paul Scott, advised by correspondence dated

February 15,2008 that the appeal had been received and that the appeal would be presented to

the Retirement Board for decision at its next quarterly meeting on April 30, 2008. Prior to April

30,2008, no representative of the Board advised Atkins or his counsel that the Board needed

additional time to decide Atkins' appeal. Atkins was advised after the Board meeting on April

30, 2008 that the Board had tabled its decision of his appeal and wanted Atkins to see another

physician. By letter datedJune 16, 2008, Paul Scott, the benefits coordinator, advised Atkins that

he was to see a neurologist, James Gordon, M.D., on June 25,2008 in Seattle, Washington. As

before, Atkins complied and saw Dr. Gordon on June 2sr\ 2008. Dr. Gordon evaluated Atkins

for the following health conditions: concussions, headaches, and memory loss. Dr. Gordon was

the third neurologist and the eighth physician who evaluated Atkins at the request of the

administrators of the NFL Retirement Plan.

28. The Board's next quarterly meeting was scheduled for July 23, 2008, at which time

Atkins' claim was supposed to be decided. Neither Atkins nor his counsel received any prior

notice that an additional extension of time was necessary. By letter from the Plan Director Sarah

Gaunt dated August 6,2008, Atkins and his counsel were advised that at its July 23, 2008 meeting

the Board again tabled its consideration of Atkins' appeal and advised that the appeal would not

be considered until the next quarterly meeting scheduled for November 11, 2008. The Board

claimed that it needed the extension because the neutral physician, Dr. Gordon, had not yet

11
Case 1:08-cv-00651-SS Document 1 Filed 08/29/2008 Page 12 of 18

provided his report to the Board.

IV. CAUSES OF ACTION UNDER ERISA

29. Atkins brings this cause of action for benefits under 29 U.S.CA. 1132(a)(1)(B) of

ERISA as neither the Committee nor the Board had substantial evidence to support its decision

that Atkins' disability was not football related.

30. In addition, Atkins brings this cause of action on behalf of the participants of the

Plan under the authority of 29 U.S.C 1132(a)(2) because the Board routinely denies a full and

fair review of a participants' claim and routinely breaches paragraph 8.8 of the Plan, both of

which occurred to Atkins in response to his appeals of his claim. It does so because during the

appeals process it selects physicians who are biased towards finding that a disabling injury or

illness is not football-related to such a degree that their selection violates both Paragraph 8.8 of

the Plan and the statutory requirement that a plan fiduciary, in this case the Board, conduct a full

and fair review of a denied claim.

Paragraph 8.8 of the Plan provides as follows:

8.8 Duty of Care. The Retirement Board and the Disability Initial
Claims Committee will discharge their duties with respect to the Plan
and Trust solely and exclusively in the interest of the Players and their
beneficiaries, and with the care, skill, prudence, and diligence under
the circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of like character and like aims .

Section 29 U.S.C 1133 provides as follows:

29 U.S.C.1133
"In accordance with regulations of the Secretary, every employee
benefit plan shall-

(1) provide adequate notice in writing to any participant or


beneficiary whose claim has been denied, setting forth
the specific reasons for such denial, written in a manner
calculated to be understood by the participant, and
Case 1:08-cv-00651-SS Document 1 Filed 08/29/2008 Page 13 of 18

(2)qfford a reasonable opportunity to any participant


whose daim for benefits has been deniedfor afull
andfair review by the appropriate namedfiduciary of
the decision denying the daim. "

31. The breach of the Plan and the breach of 29 U.S.c. 1133 were both breaches of

fiduciary duties by the Board actionable under 29 U.S.c. 1132(a)(2) and Section 29 U.S.c.

1109(a), with Article 29 U.S.c. 1104 describing the fiduciary duties of plan fiduciaries such as the

Board.

Section 1109(a) provides as follows:

"Any person who is a fiduciary with respect to a plan who breaches


any of the responsibilities, obligations, or duties imposed upon
fiduciaries by this subchapter shall be personally liable to make
good to such plan any losses to the plan resulting from each such
breach, and to restore to such plan any profits of such fiduciary
which have been made through use of assets of the plan by the
fiduciary, and shall be subject to such other equitable or remedial
relief as the court may deem appropriate, including removal of
such fiduciary. A fiduciary may also be removed for a violation
of section 1111 of this title."

Section 1104(a)(1)(A) & (D) provide as follows:

"(a)(l) Subject to sections 1103( c) and (d), 1342, and 1344 of


this title, a fiduciary shall discharge his duties with respect to a plan
solely in the interest of the participants and beneficiaries and-
(A) for the exclusive purpose of:
(i) providing benefits to participants and their beneficiaries; and
(ii) defraying reasonable expenses of administering the plan;

(D) in accordance with the documents and instruments governing


the plan insofar as such documents and instruments are consistent
with the provisions of this subchapter or subchapter III of this
chapter.

32. In this case, the selection of Dr. Robert Gilbert during the appeals stage, who held

13
Case 1:08-cv-00651-SS Document 1 Filed 08/29/2008 Page 14 of 18

a substantial bias against finding that Atkins was disabled as a result of his football career, was

not a fair review of his claim, nor did it follow the plan's requirements that the Board discharge

its duties solely for the benefit of players and their beneficiaries.

V. THE ADMINISTRATIVE CLAIM


PROCEDURES HAVE BEEN EXHAUSTED

33. It is expected that the Defendant Plans will contend that Atkins has failed to exhaust

the administrative process before filing suit, as he has filed suit before the November Board

meeting when the Board mayor may not have decided his claim. Time,. and time again the

Retirement Plan administrators have not met the minimum requirements of ERISA claim

procedures as set forth in 29 C.P.R. § 2560.503-1. At this point, in accordance with 29 C.F.R.

§ 2560.503-10), Atkins, who up to now has been a paragon of patience, is deemed to have

exhausted the administrative remedies available under the plans and is now permitted to pursue

any available remedies under Section 1132(a) of ERISA on the basis that the plans have failed to

provide reasonable claim procedures. In regards to the time requirements for deciding an appeal

of a denied disability claim in the case of a multiemployer plan (such as the plans at issue, as they

cover players of the various teams within the NFL, each team being an employer of its players

) with a board or committee that makes the final decision, the minimum requirements are as

follows:

"29 C.F.R. S 2560.503-1(i)(3)(ii) In the case of a multiemployer


plan with a committee or board of trustees designated as the
appropriate named fiduciary that holds regularly scheduled
meetings at least quarterly, paragraph (i) (3) (i) of this section
shall not apply, and the appropriate named fiduciary shall
instead make a benefit determination no later than the date
of the meeting of the committee or board that immediately
follows the plan's receipt of a request for review, unless
the request for review is flied within 30 days preceding the
date of such meeting. In such case, a benefit determination

14
Case 1:08-cv-00651-SS Document 1 Filed 08/29/2008 Page 15 of 18

may be made by no later than the date of the second meeting


following the plan's receipt of the request for review. If
special circumstances (such as the need to hold a hearing,
if the plan's procedures provide for a hearing) require a
further extension of time for processing, a benefit determination
shall be rendered not later than the third meeting of the committee
or board following the plan's receipt of the request for review.
If such an extension of time for review is required because of
special circumstances, the plan administrator shall notify the
claimant in writing of the extension, describing the special
circumstances and the date of which the benefit determination
will be made prior to the commencement of the extension."

34. Under the claim regulations the board was required to decide Mr. Atkins' claim at the

board meeting on April 30, 2008. Atkins had submitted everything more than 30 days prior to

the meeting, and had advised the board that nothing further would be submitted. No special

circumstances were present, nor did Atkins or his counsel even receive written notice prior to

April 30, 2008 that his claim would not be decided at that meeting. The only notice that Atkins

received regarding his claim was a letter dated June 16, 2008, which advised that the Board

wanted to send Atkins to another physician (this physician would be the 8th physician that would

examine Atkins at the request of the NFL and the third neurologist-hardly special circumstances

n~cessitating additional time, especially considering that the referral was meant to provide a

second opinion to Dr. Cantu's opinions, which had been provided to the administrators of the

Retirement Plan in August of 2007). The next meeting was on July 23, 2008. Again, not only

did the Board not decide his claim but no written notice was given prior to the meeting that

special circumstances existed and additional time was needed. Atkins was then sent notice that

his claim would be decided at the November meeting. Under 29 CFR § 2560.503-10), Atkins is

deemed to have exhausted the administrative remedies available under the plans due to the

Board's repeated failure to comply with minimum claim regulations and is therefore permitted

15
Case 1:08-cv-00651-SS Document 1 Filed 08/29/2008 Page 16 of 18

to bring this suit.

v. RELIEF REQUESTED

A. Benefits

35. Atkins requests all benefits due him under the Retirement Plan and the Supplemental

Disability Plan. As Atkins' disability is football related, he should have been receiving, in the

aggregate, $6,875.25 per month instead of $2,430.00 per month from June 1, 2005 forward. The

$6,875.25 is calculated by taking the sum of the $4,000.00 per month payment from the

Retirement Plan that he should have been paid and a $5,167.00 payment from the Supplemental

Plan that he should have been paid and reducing it by 25% because of Atkins' early withdrawal

of benefits from the Retirement Plan (($9,167.00 ($4,000.00 + $5,167.00) x .75=$6,875.25)).

36. Since Atkins has received inactive (i.e. non-football related) disability benefits under

the Retirement Plan from June 1, 2005 forward, the amount of benefits that he has been

receiving, $2,430.00, needs to be credited against the$6,875.25 that is owed. Therefore, after

crediting this amount, $4,445.25 is owed per month from June 1, 2005 to the present. As of

October 31, 2008, the back benefits that will be owed total $182,255.25, with additional benefits

accruing monthly (November 1, 2008 forward) at the rate of $6,875.25 per month rather than

$2,430.00 per month. Atkins prays that these back benefits be awarded him, as the decision by

the Board that Atkins' disability is not football-related is an abuse of discretion.

B. Injunctive Relief

37. Section 1109 of ERISA provides that equitable relief may be granted for breaches

of fiduciary duty. Atkins requests that the Board be compelled to comply with the Retirement

Plan and its statutory duty to claimants to conduct a full and fair review, as required by 29 U.s.c.

1133, by sending claimants such as Atkins to physicians who do not have a conflict of interest

16
Case 1:08-cv-00651-SS Document 1 Filed 08/29/2008 Page 17 of 18

with the participant and further compel the board to timely decide claims and comply with the

notice procedures as previously described. As part of the injunctive or equitable relief for breach

of fiduciary duty, Atkins asks that the claims administrators of the Retirement Plan, the

Committee and the Board, be compelled to provide specific information to participants

concerning consulting physicians that the Board or the Committee intends to use to examine the

participants. The specific information which they should be compelled to disclose, prior to a

final decision, is the physician's current C.V., the number of times that the consulting physician

has seen participants of the Plan and the conclusion (yes or no) made by that physician in answer

to the question on line 8 of the Plan's Physician's Report Form as to each prior participant

examined by that physician. 5

VI. ATTORNEY'S FEES

38. In addition, Atkins prays for his attorney's fees and costs under 29 U.S.CA.

1132(g).

PRAYER

Wherefore, premises considered, Atkins prays for past due benefits, and further that the

Board and the Initial Claims Committee be enjoined from sending claimants to physicians who

have a conflict of interest with the claimant, that they be compelled to provide information

regarding the consulting physicians prior to a final decision and that they timely decide claims in

accordance with the minimum claim procedure requirements of ERISA. Atkins prays for

reasonable and necessary attorney's fees incurred in bringing this action. Atkins prays for such

other and further equitable relief to which he may show himself to be justly entitled.

5Line 8 of the fonn asks "In your opinion, is the patient totally disabled to the extent that
he is substantially unable to engage in any occupation for remuneration or profit?"

17
Case 1:08-cv-00651-SS Document 1 Filed 08/29/2008 Page 18 of 18

Respectfully Submitted,

HARKINS, LATIMER & DAHL, P.C.


405 N. St. Mary's Street, Suite 242
San Antonio, Texas 78205
(210) 527-0900 (Telephone)
(210) ~7 -' (pac" e

By: ----'-""'-H-hf+--f--.L----=--+------
JEFF AHL
ate at No. 05310900
ATTORNEYS FOR PLAINTIFF
GENE ATKINS

18

Você também pode gostar