WHATLEY v. CNA INSURANCE COMPANIES, 1999 U.S. App. LEXIS 22504 (11th Cir. September 20, 1999)-Plaintiff brought an action under ERISA to recover disability benefits from Continental Casualty Company ("CNA"), Baker Brothers, Inc., and Baker Brothers, Inc. Long Term Disability Plan ("the Plan"). The district court granted CNA's and the Plan's motion for summary judgment on the ground that Whatley's employment with Baker Brothers, Inc. was terminated before Whatley met the requirements for benefits under his disability plan. Reviewing de novo (since the plan did not grant the administrator discretion), this court found that because there were disputed issues of material fact, summary judgment was not appropriate.
When Whatley filed a claim for disability benefits, CNA denied coverage, stating that Whatley had become disabled on October 3, but had been terminated on September 29. The plan required a participant to be "totally disabled" while still employed with Baker Brothers; in other words, since he was fired while still able to work, any "total disability" arising after the termination would not be covered.
In order to qualify as "totally disabled" under the policy, a participant had to show: "(1) [he is] continuously unable to perform the substantial and material duties of his regular occupation; (2) [he is] under the regular care of a licensed physician other than himself; and (3) [he is] not gainfully employed in any occupation for which he is or becomes qualified by education, training or experience."
The district court acknowledged that appellant had to take frequent rests and had difficulty performing day-to-day, but stated that "the essence of the requirement is performance, not quality of performance." This court, however, found evidence that could lead a reasonable jury to believe that in spite of the fact that plaintiff attended work and collected a paycheck, he could have been "totally disabled" several days before he was diagnosed as such.
Such evidence tending to raise a fact question on total disability even when an employee attends work, includes: "(1) medical records indicating the existence of a serious medical condition (and associated problems with medication) before termination, (2) an affidavit by a physician stating that [the employee] "may have" been totally disabled on the date of his termination, and (3) a determination by the Social Security Administration that [the employee] was disabled."
