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Kennard v. Means Industries, Inc.

United States District Court, E.D. Michigan, Northern Division

July 7, 2015

KYLE KENNARD, Plaintiff,


THOMAS L. LUDINGTON, District Judge.

The substantive question posed by Plaintiff Kyle Kennard's immediate motion is not particularly complex. But the procedural history of the case and, to some extent, the underlying facts are. Kennard was a long-term employee of Defendant Means Industries, Inc. who was injured on the job in 1990. In 2011 Kennard sought disability benefits from his Long-Term Disability Plan and was denied benefits because the Plan Administrator determined that he was not totally disabled from engaging in any employment. This Court agreed but the Sixth Circuit disagreed, finding that he was disabled because there were no jobs within the national economy meeting his limitations. The Sixth Circuit remanded to this Court, which in turn remanded to the Plan Administrator who, accepting the Sixth Circuit's decision that Kennard was disabled within the meaning of Means' Plan, nevertheless found that Kennard was still not entitled to a benefit because he had received a workers' compensation benefit from Means that was coordinated with his long-term disability benefit. Kennard disagrees, contending that he is entitled to both benefits. Now, the procedural posture of the case should be explained.

The immediate motion before the Court is Kennard's December 11, 2014 Motion for Relief from this Court's Order and Judgment Entered on June 26, 2014 finding Kennard disabled under the Means' Industries, Inc. Long-Term Disability Plan but remanding the matter to the Plan Administrator for a determination of Kennard's benefit. ECF No. 85. Kennard seeks relief under Federal Rule of Civil Procedure 60 from the judgment that was entered after this case was remanded from the Sixth Circuit. Id. Defendant Means Industries responded claiming that the requested relief is untimely. ECF No. 86. The Plan Administrator determined that Kennard was not entitled to a benefit payment because of the workers' compensation benefit coordination provision in the Plan. The motion also follows Kennard's effort to obtain a writ of mandamus from the Sixth Circuit vacating the June 26, 2014 Opinion & Order and Judgment. Kennard argued that mandamus was appropriate because the Sixth Circuit had directed this Court to make its own benefit calculation, not remand to the Plan Administrator.

The Sixth Circuit denied mandamus and noted that Kennard still had avenues of relief available for review of the Plan Administrator's decision. For the sake of completeness, the Court directed supplemental briefing after the case returned from the Sixth Circuit. The purpose of the supplemental briefing was to address the parties' differing interpretations of the Sixth Circuit's remand. Again, the resulting question is whether the Plan Administrator's decision that Kennard is not entitled to a benefit payment due to the Plan's offset of his workers' compensation settlement amounts was a reasonable interpretation of the Plan. If the Plan Administrator did not act arbitrarily or capriciously in applying the workers' compensation coordination provision, the Plan Administrator's decision should be affirmed and judgment entered against Kennard. If the Plan Administrator did act arbitrarily and capriciously, appropriate relief-possibly including remand-must be decided.

As set forth below, the Plan Administrator did not act arbitrarily or capriciously in determining that Kennard was not entitled to a disability benefit payment under the Plan. Judgment will be entered against Kennard and the Plan Administrator's decision will be affirmed.



Kennard began working for Means in 1983 and was employed there for over 20 years. In 1990, he suffered a severe injury to his lungs when he was exposed to an improperly mixed batch of synthetic oil. Kennard later began suffering from headaches and a range of respiratory symptoms following his exposure to the oil.

Rendered ultra-sensitive to airborne pollutants due to this incident, Kennard received a life-long restriction to work in a clean-air environment. Means provided Kennard a clean-air environment, beginning in March 1992, when he returned to work.

In 1999, Kennard filed a Michigan Workers' Compensation Act and Americans with Disabilities Act claim contending that during the eight years he continued to be employed by Means the company discriminated against him because of his injury. He argued that other employees received pay increases that he did not. In March of 2000, an agreement was reached and Kennard was paid $24, 000 and given certain work-related commitments by Means to accommodate his lung injury.

Beginning in 2005 Kennard alleges that Means required Kennard to punch in and out on a time clock in Means' plant, which was not located in a clean air environment. Due to this exposure, he alleges he became increasingly ill and was forced to miss work. Eventually Kennard was laid-off during a reduction in force. He nevertheless sought workers' compensation benefits for the earlier injury. Means ultimately redeemed Kennard's past and future claims to workers' compensation benefits for $220, 000.

On May 29, 2007, Kennard also sought Social Security Disability (SSD) benefits, alleging that he was disabled as of February 14, 2006. After a hearing before the Honorable Joanne E. Adamczyk, the Social Security Administration found Kennard totally disabled in a decision dated October 6, 2009 because "there are no jobs in the national economy that [Kennard] could perform." First A.R. 106, ECF No. 49. Based on this finding, he then applied for disability retirement benefits under the Plan, which is governed by ERISA.[1]

Section 2.3 of the Plan provides that an employee "who shall have become, through some unavoidable cause, permanently disabled and who at such time shall be an Eligible Employee shall be eligible for a disability benefit." First A.R. 22, ECF No. 49. Section 2.3 then defines "permanent disability" under the Plan:

A Participant shall be considered to be permanently disabled (as "permanently disabled" is used herein) only:
(a) if he has been totally disabled by bodily injury or disease so as to be prevented thereby from engaging in any occupation or employment for remuneration or profit, and which condition constitutes total disability under the federal Social Security Act; and
(b) after such total disability shall have continued for a period of six consecutive months and, in the opinion of a qualified physician chosen by the Committee (subject to Section 11), it will be permanent and continuous during the remainder of his life.

Id. According to the Plan's summary description, to qualify for disability retirement, "a physician selected by the Plan Administrator must determine that [the] disability totally and permanently prevents [an employee] from engaging in any occupation or employment." Id. at 5.


One month after Kennard submitted his long-term disability request form, Means' Senior Human Resources Director Joyce Hynes scheduled examinations with two doctors to review his alleged disability. See id. at 89. The appointments were with Dr. Gerald Levinson, D.O. on December 3, 2009, and Dr. Michael Holda, M.D. on December 10, 2009. Kennard was encouraged to "have any medical records with tests, etc." sent to the doctors before the appointments.[2] Id.

Kennard was examined by Dr. Levinson on December 3 in Southfield, Michigan. Following the examination, Dr. Levinson authored a report in which he concluded:

[Kennard] is permanently and totally medically disabled from his usual and customary employment at Means Industries on the basis of occupational asthma as described above. However, he is employable as long as he could be guaranteed that he would be placed in an absolute clean air environment with absolutely no noxious fumes or inhalants, as he is sensitive to this. If that criteria could be met, then he could be employable in a clerical position.

Id. at 88. Kennard was examined by Dr. Holda one week later in Flint, Michigan. After that examination, Dr. Holda authored his report. He recommended that Kennard "be restricted from repetitive bending and twisting at the waist and lifting over 25 pounds" with "no prolonged sitting, ...

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