Escolar Documentos
Profissional Documentos
Cultura Documentos
In re Disability Applications of
WILLIE JACKSON, JEREMIAH WALKER,
and ALBERT BARBEE.
________________________________________/
The claimants, Willie Jackson, Jeremiah Walker and Albert Barbee, are
former employees of Wessels Company which withdrew from the Plan and
lengthy Resolution dated December 14, 1979, the Board of Administration set
December 31, 1979 as the date the Plan should be deemed terminated with
respect to Wessels' employees and the date as of which Wessels' portion of Plan
were not resolved until February 9, 1982. In the interim, benefit application
forms were not given out to Wessels' participants but the current disability
claimants somehow managed to obtain forms and filed them about November
16-17, 1981. The Plan's administrative agent transmitted the claimants' files to
M. Colton Hutchins, M.D., Plan physician, under cover letter of December 16,
1981, in which the administrative agent indicated that the claimants must have
because it did not establish Permanent and Total Disability within the meaning
of the Plan or because the date of PTD was not established. Numerous requests
for additional information were made by the Plan's administrative agent, which
went unanswered. In the Spring of 1983, claimants Jackson and Walker retained
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an attorney to press their claims.1 By letter dated April 10, 1983, Plan counsel
counsel's letter, except for a medical opinion on Willie Jackson transmitted June
15, 1983. During the pendency of the applications, the Board began paying
Albert Barbee early retirement benefits, since he already was over 60.
At a meeting held April 19, 1984, the Board considered the applications
of Messers. Jackson, Walker and Barbee for disability pensions but deadlocked
over their disposition. In order to break the deadlock, the parties selected an
immediate oral decisions in each case so that the claimants could be notified at
J3. 4/27/81 Letter from F. Barry Abrams, D.O., Jackson's doctor, opining
PTD but setting no date.
1
The same attorney also represented Vernon McDuell, S.S. No. [xxx-xx-xxxx], whose case is not before the
Impartial Chairman.
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J4. 7/7/81 Social Security disability award indicating period of disability
began 1/31/80.
J5. 11/17/81 Application for disability pension stating last day worked
9/21/79 and giving termination date of 1/1/80 and disability as reason for
termination.
J7. 4/19/82 Letter to administrative agent from Plan physician opining PTD
but setting no date.
J10. 7/25/83 Letter to Plan counsel from Plan physician reads in pertinent
part:
notably emphysema and other pulmonary disorders, heart trouble and diabetes.
Disabled within the meaning of the Plan, only over when he became PTD. The
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disability from January 31, 1980, as did Jackson's own physician on the Plan's
medical evaluation form which Dr. Abrams signed April 19, 1982 (J6). After
Jackson retained an attorney, Dr. Abrams revised his opinion and dated
Jackson's disability back to September 21, 1979, the date which Jackson
skepticism, in Mr. Jackson's case, this skepticism is tempered by the fact that the
doctor's original date, as well as Social Security's,2 was so close to the cutoff
date of December 31, 1979 set by the Board and its administrative agent. In
a participant became PTD with any degree of certainty. In Mr. Jackson's case,
timely fashion when Wessels withdrew. On balance, it seems quite likely that
Mr. Jackson was PTD at the time Wessels withdrew (note injuries as early as
1978 in Jl-2) and most probably by the December 1979 date set by the Board
granted.
2
The rules and procedures which Social Security applied for eligibility are not before the Impartial Chairman,
although it was suggested that S.S. at the time did not attempt to determine the very earliest date by which a person
became medically disabled, only the earliest date by which he became eligible for benefits.
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II. Application of Jeremiah Walker
The pertinent documents from the Walker file are the following, in
chronological order:
W7. 4/7/82 Letter to administrative agent from Plan physician saying can't
determine PTD.
W8. 7/25/83 Letter to Plan counsel from Plan physician reads in pertinent
part:
"I indicated in my letter of April 7, 1982 that I did not have sufficient
information concerning this man to determine the degree of disability."
Walker's case is much weaker than Jackson's for two reasons. First, the
Plan physician does not accept Walker's proof of PTD (W7-8); second, no
medical report clearly dates Walker's PTD prior to Wessels' withdrawal (S.S.
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date in W6). Either is sufficient ground for denying Mr. Walker's application. If
he is not PTD within the meaning of the Plan, then certainly he is not entitled to
a disability pension. Even if he is PTD, unless his PTD began before Wessels
withdrew, he is not eligible for a disability pension. This latter point requires
some discussion.
the employees of the withdrawing employer (§2). Upon withdrawal, the assets
When these three sections are read together, it is clear that when an
employer withdraws from the Plan, the benefits to which its participants are
entitled become fixed. If this were not the case, the actuary could not determine
the correct amount of assets to set aside. The participants' segregated account
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The foregoing interpretation of the Plan document is consistent with the
(a), the PBGC insures disability benefits only in those cases in which total and
course, each of the other disability claimants) must prove that his PTD predates
Wessels' withdrawal.
The evidence on this point is not persuasive, even if one accepts the
opinion of Walker's doctor that he is PTD (recall that the Plan physician did
not). Dr. Mehendale's undated report probably was prepared in early April of
1982 because on April 2, 1982 the administrative agent wrote Walker urging
that he have a medical report completed and on April 7, 1982 the Plan physician
wrote the administrative agent after receiving the report. Dr. Mehendale says
only that Walker has been disabled "for the last 2-3 yrs." The 3-year figure
to find for Mr. Walker, one not only would have to give him the benefit of the
doubt about the date of PTD but one also would have to dismiss the Plan
physician's doubts about PTD at all. Walker is asking too much indulgence. The
burden is on him to establish PTD prior to Wessels' withdrawal and he has not
carried that burden. Thus, his application for a disability pension is denied.
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III. Application of Albert Barbee
chronological order:
B3. 11/17/81 Disability application stating last day worked 9/21/79 and date
terminated 1/80 and giving disability as reason for termination.
B4. 3/9/82 Administrative agent's note re phone call with Plan physician
saying insufficient evidence on which to make a determination.
letters and phone calls by the administrative agent, Mr. Barbee has failed to
seriously ill, having had one or both legs amputated. If Mr. Barbee wishes to
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_________________________
E. Frank Cornelius, J.D., Ph.D,
Dated: May 4, 1984 Impartial Chairman
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