Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 1 of 21 PageID 6618 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION TYRONE KEYS v. Plaintiff, BERT BELL/PETE ROZELLE NFL PLAYER RETIREMENT PLAN and the NFL PLAYER DISABILITY & NEUROCOGNITIVE BENEFIT PLAN Defendants. : : Case No. 8:18-cv-02098-CEH-JSS : : : : : PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION The Defendants continue their smear campaign against Tyrone Keys. There is not substantial evidence within the Administrative Record (Record) to support the Board’s decision that Keys was rendered disabled by a 2002 rear-end collision rather than playing defensive lineman in the NFL for seven years. Furthermore, the Record contradicts the Defendants’ assertions that Keys engaged in a long-running campaign of deception. Keys’ Motion for Summary Judgment should be granted and the Defendants’ Motion for Summary Judgment should be denied. II. THE BOARD’S CONCLUSION THAT THE CAR ACCIDENT WAS A ‘BUT FOR’ CAUSE OF KEYS’ DISABILITY IS NOT A REASONABLE CONCLUSION In their motion, the Defendants assert that it was reasonable for the NFL Retirement Board to “conclude that the accident-and not NFL football-was the proximate cause of [Keys’] total and permanent disability.” See Defendants’ Motion for Summary Judgment (MSJ), Doc. Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 2 of 21 PageID 6619 58, at p. 17. Defendants maintain that the Janecki Accident Report, indicating that Keys continued to have symptoms over a year after the auto accident and some permanent impairment and permanent restrictions due to the accident, amounts to substantial evidence that the 2002 rear-end collision, not Keys’ participation in the NFL for seven years, caused his total and permanent disability (Defendants’ MSJ, Doc. 58, at p. 16). 1 The NFL Retirement Board members are not medical experts. There is not a single page of medical expert opinion within the 5,287 page Record that supports the Board’s conclusion that Keys was rendered disabled as a result of the 2002 auto accident. This includes the opinion of Dr. Janecki, who concluded that it was Keys’ NFL football career, not the 2002 rear-end collision, that caused him to be disabled (See Exhibit 1, Dr. Janecki’s April 7, 2009 narrative; AR 03030). The Defendants rely upon one document, the Janecki Accident Report, in asserting that it “was reasonable for the Board to conclude the car accident was the real ‘but for’ cause of Keys’ total and permanent disability.” See Defendants’ MSJ, Doc. 58, at p. 16. They assert that the decision was reasonable, and therefore not an abuse of discretion, because there was “conflicting evidence.” Id. There is not conflicting evidence within the Record. In arguing that the final decision made by the Board in February, 2018, to reclassify Keys’ T&P disability benefits from Inactive A to Inactive B, retroactively to 2004, was reasonable, the Plans rely upon the following statements in Janecki’s Accident Report: “Keys continued to have symptoms without remission during the course of the last year and 3 months since the accident; 1 Dr. Janecki’s Accident Report is his four-page progress note dated August 1, 2003 (AR 0358603589). 2 Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 3 of 21 PageID 6620 Keys had permanent impairment with permanent loss of important bodily functions and permanent restrictions in terms of his activities of daily living and his occupation; Keys had not been restored to his pre-injury state and continue(d) to have substantial symptoms in his cervical and lumbar spine as well as his left knee; and Keys’ symptoms had worsened during the course of the last year following the accident.” Id. (Internal quotation marks omitted). Dr. Janecki did not render an opinion regarding disability in his Accident Report. Dr. Janecki’s statement that Keys would have occupational restrictions as a result of the accident stands in contradiction to the Board’s position that the auto accident rendered Keys disabled. Dr. Janecki did provide the Plans’ administrators his opinion of Keys’ disability in April 2009. Dr. Janecki advised the Plans’ administrators as follows: “I am an orthopedic surgeon in Tampa, Fl, and I have evaluated and treated Mr. Tyrone Keys since July of 2002. The most recent evaluation of Mr. Keys was performed in late 2008. Mr. Keys has been evaluated for orthopedic conditions of his cervical spine, lumbar spine, and left knee. These conditions have occurred as a result of his participation in professional football and are causally related to this participation. Specifically, Mr. Keys has developed premature degenerative arthritis of his left knee which has required multiple surgical procedures. The patient has also developed significant cervical spine spondylosis, or arthritis, with symptomology radiating into his upper extremities. The same is true of the patient’s lumbar condition where he has developed significant lumbar spondylosis/degenerative arthritis with significant facet arthropathy and radicular symptoms of his lower extremities, right greater than left. The conditions mentioned above have resulted in this patient’s total Disability. These diagnoses have been established not only by clinical examination but by x-ray and MRI, and also have been corroborated by other physicians who have treated him.” (Exhibit 1; AR 03030). As pointed out in Keys’ MSJ, Keys had an Independent Medical Exam (IME) in March of 2003. The specific purpose of the IME, performed by Howard Hochman, D.C., was to 3 Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 4 of 21 PageID 6621 determine whether or not Keys needed further treatment and had any lasting injury as a result of the 2002 auto accident (AR 04375). Dr. Hochman determined that Keys had no residual signs of injury related to the auto accident (Exhibit 3 to Keys’ MSJ, Doc. 57-3; AR 04378). The Board’s decision not only stands in opposition to Dr. Janecki’s opinion, but also stands in opposition to Dr. Hochman’s opinion. When Keys was awarded T&P football degenerative disability benefits, the Board relied upon the medical examinations of the Plans’ neutral orthopedic expert, Dr. Harlan Selesnick, and a couple of years later relied upon another orthopedic expert appointed by the Plans’ administrators, Dr. David Apple. Dr. Selesnick and Dr. Apple, along with the other experts employed by the Plans’ administrators to conduct IMEs and determine entitlement to benefits under the Plans, are described by the Plans’ counsel as “renowned specialists in their field.” (AR 04282). The Plans’ counsel contends that when Keys provided medical records with his 2003 T&P application, only page four of Janecki’s Accident Report was provided, and this invalidated the Plans’ experts’ opinions. In its final decision in February, 2018, the Board determined that “by concealing the fact of the accident from the Plan, you precluded the Plan’s neutral physicians from properly evaluating the cause of your alleged total and permanent disability.” (AR 05281). The Board’s speculation that the Plans’ experts might have found that the cause of Keys’ disability was the 2002 rear-end collision rather than playing seven years in the NFL was unreasonable, and therefore an abuse of discretion. The Board’s decision was unreasonable because 1) the conditions for which Keys was claiming disability were provided to the Plans’ medical experts prior to the IMEs in order to define the scope of the examination, and those conditions were verified as being caused by Keys playing NFL football; 2) the medical records provided to the Plans’ experts prior to the IMEs gave them notice of the 2002 accident; 3) the 4 Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 5 of 21 PageID 6622 Plans’ experts had a great deal of experience in examining former NFL players; 4) Dr. Hochman’s opinion was that as of March 2003, Keys had no residual sign of injury as a result of the accident; 5) Dr. Janecki’s opinion was that Keys was disabled by playing in the NFL, not by the rear-end collision; 6) the second page of Dr. Richard Shaker’s report indicated that the imaging studies in 2002 revealed an abnormal degree of degenerative osteoarthritis in Keys’ cervical spine, lumbar spine, and knees that existed prior to the auto accident; 7) Keys had repeated surgeries due to playing in the NFL; and 8) the findings of Dr. Unger that as of 1991, over twelve years before Dr. Selesnick’s first examination of Keys, Keys had a 50-59% loss of use of his back as a result of playing in the NFL, a 30 to 49% loss of use in his shoulder as a result of playing in the NFL, and a 60-79% loss of use in both knees as a result of his career in the NFL (Keys’ MSJ, Doc. 57, at pp. 16-18). 2 Not only does all of the competent expert evidence indicate that Keys was rendered disabled as a result of his NFL career, rather than the 2002 car accident, but his treatment records demonstrate Keys sustained treatment for his back, neck, knee, and shoulder injuries that occurred prior to the 2002 auto accident. In responding to the Plans’ counsel’s requests, Dr. Culverhouse provided a 13-page summary of Keys’ medical treatment beginning in January 2000 (AR 03715-03728). The records show repeated treatment with Richard Shaker, D.C. for degenerative joint disease, spondylosis, spasms, and nerve irritation in cervical and lumbar spine/cartilage injury to Keys’ right shoulder prior to the car accident (AR 03716-03717). 2 The second page of Dr. Shaker’s report was not addressed in Keys’ MSJ but is addressed later in this response. 5 Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 6 of 21 PageID 6623 A. The Second Page of Dr. Shaker’s Report As support for its final decision in February, 2018, the Board asserted that “of all the records that you chose to provide with your 2003 application, only Dr. Janecki’s August 1, 2003 report is incomplete.” AR 05279. That is not so. Assuming, for the sake of argument, that all the medical records Keys provided with his 2003 T&P application were preserved by the Plans’ administrators over the years and are now within the Record, there are two incomplete reports within the Record: 1) the Janecki Accident Report, since only the fourth page of the Report appears in the Record as a document provided by Keys with his T&P application in 2003; and 2) the second page of a report from Chiropractor Richard Shaker (Exhibit 2; the fourth page of Janecki’s Accident Report is AR 01007; the second page of Dr. Shaker’s report is AR 01014). Dr. Shaker’s report provides the following opinion regarding the cause of Keys’ lumbar, cervical, and knee impairments: “These imaging studies revealed an abnormal degree of degenerative osteoarthritis in Mr. Keys’ cervical spine, lumbar spine, and knees, which were all existing prior to the May 7th, 2002 accident. The arthritic lesions demonstrated are largely the result of his football activities.” Exhibit 2; AR 01014. This concise opinion from Dr. Shaker is not mentioned by the Board nor by the Defendants in their motion because it stands in stark opposition to their contention that the 2002 car accident, not NFL football, caused Keys’ total and permanent disability. This opinion also stands in stark contradiction of the Board’s contention in its final denial that it did not receive notice of the 2002 auto accident until 2016 (Defendants’ MSJ, Doc. 58, at p. 12). 6 Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 7 of 21 PageID 6624 III. THE DEFENDANTS’ ALLEGATIONS OF MATERIALLY FALSE, INCOMPLETE, AND CONTRADICTORY STATEMENTS BY KEYS ARE NOT SUPPORTED BY THE RECORD A. The Plans’ LOD Overpayment Claims The Defendants allege that the Plans’ counsel revealed an “alarming pattern of false statements and incomplete submissions stretching back to Keys’ first application for LOD benefits in 1991.” Defendants’ MSJ, Doc. 58, p. 17. In dramatic fashion, the Defendants characterize Keys as a man who engaged in “malfeasance” and who has been “remorseless in the face of his misdeeds” and someone who has conducted a “years-long campaign of deception” against the Plans (Defendants’ MSJ, Doc. 58, at p. 1). In Count I of their Counterclaim the Defendants seek reimbursement of an alleged overpayment of $39,000 in LOD payments (Defendants’ Answer and Counterclaim, Doc. 39, at pp. 22-23). In their motion, the Retirement Plan seeks to recover this alleged overpayment of LOD benefits (Defendants’ MSJ, Doc. 58, at p. 21). What the Defendants fail to mention is that Keys advised the Plan administrators in his 2003 application for T&P disability benefits that he had received $39,000 in workers’ compensation benefits. More significantly, Defendants also fail to mention that the Record reveals that Keys not only reimbursed the Retirement Plan for the alleged overpayment of LOD benefits, he overpaid the Plan (Keys’ notice to the Plans administrators’ office of receipt of workers’ compensation benefits in the amount of $39,000 is on the final page of his 2003 T&P application; AR 00786). The Memorandum received by the Plans’ benefit office on August 30, 2004 from Valerie Cross on behalf of the Management Council to Paul Scott, who was the Benefits Coordinator for the Plans, advised as follows: “Enclosed is Tyrone Keys’ check in the amount of $4,820.48 as reimbursement for the overpayment of his Inactive T&P disability 7 Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 8 of 21 PageID 6625 benefit. As we discussed, I am returning to Tyrone his check in the amount of $21,062.95 as he has already reimbursed the Plan for the overpayment of his Line-of-Duty disability benefit.” (Exhibit 3: AR 01142-AR 01144). (emphasis added) The allegations that Keys’ “malfeasance” has caused an LOD overpayment are untrue. Keys gave notice of his receipt of workers’ compensation benefits in 2003 and during the following year he not only paid back the overpayment of LOD benefits, he overpaid. A check in the amount of $21,062.95 was sent back to him as a result of his overpayment. B. Keys Did Not Lie on his 2003 T&P Application In their Motion for Summary Judgment, the Defendants mischaracterize the Plans’ 2003 benefit application form. In seeking to build evidence of what they describe as a “campaign of deception,” they state as follows: “Keys did not disclose the accident (in his application), despite being prompted to ‘describe all accidents injuries or illnesses that did not result from NFL Football (for example auto accidents) and may have caused or contributed in any way’ to his alleged disability.” Defendants’ MSJ, Doc. 58, at p. 18). The Defendants omit a critical part of the instruction within the application. The instruction states as follows: “Describe all accidents, injuries, or illnesses that did not result from NFL Football (for example, auto accidents) and that may have caused or contributed in any way to any of the above conditions.” (AR 00784)(emphasis added). The Defendants omit the last six critical words of the instruction on the application. Players are asked to report events such as auto accidents if they “may have caused or contributed in any way to the above conditions,” meaning the conditions reported by the player that he believes to be the cause of his disability. As is made clear in his MSJ, Keys listed four orthopedic conditions in his application that were all caused by playing NFL football (Exhibit 1 8 Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 9 of 21 PageID 6626 to Keys’ MSJ, Doc. 57-1; AR 00784). Dr. Janecki’s September 4, 2003 letter, and Dr. Unger’s December 9, 1991 and March 4, 1993 reports to the NFL Retirement Plan office verify that the conditions that Keys listed in his 2003 T&P application were caused by playing in the NFL (Exhibit 1 to Keys’ MSJ, Doc. 57-1; Janecki’s September 4, 2003 letter is AR 04374; Dr. Unger’s reports are within the Record at AR 01075-01076; AR 01020). The cornerstone of the Board’s February 28, 2018 final decision to terminate Keys’ Inactive A T&P disability benefits and to seek recoupment of $831,488.28 is the assertion that Keys’ failure to disclose the 2002 auto accident in his application was an intentional misrepresentation (AR 05278). As pointed out in his MSJ and again here, Keys’ failure to disclose the auto accident in his T&P application was not a misrepresentation. When the instruction on the 2003 benefit application is read accurately and in its entirety, and after a full review of the medical records within the Record, it is abundantly clear that Keys completed his application accurately (See Keys’ MSJ, Doc. 57, at pp. 11-14). C. Documents That Were Allegedly Not Provided by Keys With His 2003 Application Besides the claim that Keys’ application was a misrepresentation, the Plans allege that with his 2003 T&P application, Keys provided “incomplete documents, and misrepresented the nature of other documents.” Defendants’ MSJ, Doc. 58, at p. 1. In its final denial, the Board asserted as a reason for its decision that Keys failed to provide a full copy of the Janecki Accident Report and that he provided chiropractic records but did not disclose the reason for his chiropractic treatment, contended by the Board to be the 2002 auto accident (AR 05279). Underlying the Board’s final decision, and the Defendants’ claims, is the proposition that a benefit decision by the Board is never final, regardless of the number of years that have passed. The Board contends that under the Plans and federal common law, it has authority to reach back 9 Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 10 of 21 PageID 6627 over thirteen years and claw back benefits paid over that time period, and that it may base such a decision on events that occurred well over a decade prior to the decision. Not surprisingly, Keys did not preserve any confirmation of what he or his counsel sent to the Plans’ office in 2003. He is caught at a disadvantage due to the passage of time. Nevertheless, accepting the Record that the Defendants have assembled and provided, a quick review of the documents that Keys is alleged to have provided with his T&P application in 2003 invites great skepticism towards the Defendants’ claims that 1) they were incomplete when provided, or 2) that they mattered to the Plans’ administrators. As the Plans confirm, documents received by the Plan office from a claimant are typically bates labeled by staff members with the NFL Player Benefits Office before a meeting and then distributed to committee members or Board members before a meeting (See Exhibit 4 to Keys’ MSJ, responses to requests for admissions one and two, Doc. 57-4). The Record as assembled by the Plans indicates that when Keys provided medical records with his 2003 T&P application, he provided the fourth page of Janecki’s Accident Report (Ex. 2; AR 01007). The Record also indicates that he provided the second page of Dr. Shaker’s report with the documents he sent to the Benefits Office (Ex. 2; AR 01014). The bates labels on each document are the same, indicating that they were distributed to the Plans’ Disability Initial Claims Committee (DICC) for consideration at a meeting in April, 2004 and two meetings in 2005. Id. It is clear from a quick glance at the documents that they are incomplete records. It is also very clear from both documents that they concern a 2002 accident. At the top of the fourth page of the Janecki Accident Report, there is a “4.” Exhibit 2; AR 01007. If truly received in this manner from a claimant, what claims administrator would not promptly ask for the first three pages? At the top of the fourth page of the Janecki Accident 10 Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 11 of 21 PageID 6628 Report is the acronym DOI 5/20/02. Every claims administrator knows that DOI is an acronym for Date of Injury. 3 The top of the page, in bold letters, is titled PLAN OF MANAGEMENT CONTINUED, making clear that the report concerns an injury and is an excerpt of a longer report. At the top of the second page of Dr. Shaker’s report, there is a “2.” Exhibit 2; AR 01014. If truly received in this manner from a claimant, what claims administrator would not promptly ask for page one? Page two is not a difficult read. It contains three sentences, the first one being “these imaging studies revealed an abnormal degree of degenerative osteoarthritis in Mr. Keys’ cervical spine, lumbar spine, and knees, which were all existing prior to the May 7, 2002 accident.” Then Dr. Shaker offers his phone number if anyone wants to call him about his opinions. Id. This document, like the fourth page of the Janecki’s Accident Report, was distributed to the Plans’ administrators for their consideration, in this instance the DICC, on three separate occasions, yet the DICC never asked for the missing pages of the reports. There are three possibilities to explain the DICC’s silence regarding the alleged incomplete documents that were distributed to them for review in 2004 and 2005. The first is that the DICC did not review the medical records Keys provided, meaning that it wouldn’t have mattered whether Keys provided the complete records or not. The second plausible alternative is that the DICC reviewed Dr. Shaker’s opinion on page two and concluded that the May 7, 2002 accident was a rabbit trail the DICC did not need to follow, since Dr. Shaker attributed Keys’ arthritis in his back, neck, and knees to his career in the NFL. The third alternative explanation is that Keys provided the records in complete form and the Plan office lost pages over the many 3 Dr. Janecki got the date of accident wrong on his report. According to Dr. Hochman’s report (AR 04378) and Dr. Shaker’s second page (AR 01014), the accident occurred on May 7, 2002. 11 Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 12 of 21 PageID 6629 years that passed between their initial submission and the Plans Counsel’s gathering of Keys’ Social Security file in 2015 and 2016. Regardless, contrary to the Defendants’ assertions in their motion, Keys provided ample notice to the Plans’ administrators when he submitted his records with his 2003 T&P application that he had been in an accident in 2002, including Dr. Shaker’s concise opinion that the early osteoarthritis in his lumbar and cervical spine and knees was the result of his NFL career, not the May 7, 2002 accident. The other aspect that invites skepticism concerning the narrative that this 2002 auto accident and the Janecki Accident Report were shocking discoveries is that it is routine for the Plans’ office administrators to send the medical records submitted by the claimant, along with the claimant’s application, to their experts who conduct the IMEs. The two letters from the Plan office, specifically Benefits Coordinator Paul Scott, to Keys, advising him of his scheduled IMEs with the Plans’ expert Harlan Selesnick, M.D. indicate that Keys’ application and his medical records were sent to Dr. Selesnick (Ex. 2 to Keys’ MSJ, Doc. 57-2; AR 00778; AR 01163). David Apple, M.D., the Plans’ expert who conducted an IME in April of 2006 was also sent Keys’ 2003 T&P application, along with the medical records Keys provided in 2003 (AR 01240). Therefore, according to the Record as assembled by the Plans, both Dr. Selesnick and Dr. Apple received page 4 of the Janecki Accident Report and page 2 of Dr. Shaker’s report prior to their examinations of Keys. The second page of Dr. Shaker’s report rendered a clear opinion that the MRI films showed osteoarthritis in Keys lumbar and cervical spine and knees that “existed prior to the May 7, 2002 accident.” AR 01014. Dr. Selesnick and Dr. Apple were also provided Dr. Shaker’s phone number if they wanted to call him about these opinions. They may have called him – that fact is simply unknown. They may or may not have obtained the complete 12 Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 13 of 21 PageID 6630 Janecki Accident Report and Dr. Shaker’s report. Clearly, they were comfortable in offering their opinions regarding Keys’ disability with the knowledge that Keys had been in an accident in 2002. D. The Alleged Misrepresentations to the Social Security Administration (SSA) The Defendants assert that Keys “passed off the Retirement Plan’s neutral physicians as his own personal, treating physicians, knowing that the Administration defers to treating physicians.” Defendants’ MSJ, Doc. 58 at p. 19. This is untrue. In Section 8.B of his application for Social Security disability benefits, Keys was asked to identify “who may have medical records about any of your physical and/or mental condition(s).” AR 02774. He was not asked to list his treating physicians. Keys identified Dr. Apple, who he indicated he saw one time, on 5/30/2006, and who conducted “evaluations for NFL disability.” Id. Keys also identified Dr. Selesnick, who he indicated he saw in 2003 and 2005, and again, when asked for what medical condition was he treated or evaluated, he responded “evaluations for NFL disability.” AR 02778. The SSA application does not ask for treating physicians but for physicians who have “evaluated” the claimant. Keys answered those questions accurately. This is verified by the SSA decision by Administrative Law Judge Edwin E. Kerstine (AR 02715-02720). Judge Kerstine found that Keys “underwent an independent orthopaedic evaluation by Dr. Harlan Selesnick in January 2005.” AR 02717. Contrary to the Defendants assertions, Judge Kerstine knew that Dr. Selesnick was not a treating physician. He did, however, give Dr. Selesnick’s opinion “significant weight” because “(Dr. Selesnick) evaluated the claimant and his opinion is based upon objective medical and clinical findings.” AR 02718. 13 Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 14 of 21 PageID 6631 The Defendants also contend that Keys “falsely claimed he lived in Mississippi, presumably to seek benefits in a more favorable venue . . . .” Defendants MSJ, Doc. 58, at p. 19. Keys’ response, through Dr. Culverhouse, was that he has a residence in Mississippi as well as in Florida and therefore filed in Mississippi (AR 03711). The Defendants contend that Keys told the SSA that he was gainfully employed until 2009 (Defendants MSJ, Doc. 58, at p. 19). He told the SSA that he was the founder, and continued to serve as Director, of All Sports Community Service Organization until 2009, although as his conditioned worsened he decreased his hours and delegated jobs (AR 02772). All Sports is a non-profit youth mentoring and scholarship program for first generation collegebound students. Id. The Plans encourage former NFL players who are disabled to use their celebrity as former pro football players to work for, or be associated with, non-profit organizations such as All Sports. The Retirement Plan and Disability Plan specifically address working for charitable organizations, stating that former players who submit claims for benefits will not be considered able to work merely because they are employed or associated with a charitable organization (Section 3.1(d)(ii) of the 2017 Player Disability & Neurocognitive Benefit Plan; AR 00315-00316). Dr. Culverhouse provided the Plans’ administrators Keys’ yearly earnings from All Sports (AR 03714). IV. THE PLANS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON THEIR COUNTERCLAIMS A. The Plans’ Overpayment Provisions The principal function of ERISA is to protect contractually defined benefits. U.S. Airways, Inc. v. McCutchen, 569 U.S. 88, 100 (2013). Consequently, it is essential to tether the circumstances under consideration to the plan terms that address those circumstances. In their Motion, the Defendants correctly state that there are two overpayment provisions within the 14 Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 15 of 21 PageID 6632 Retirement Plan (and the Disability Plan) that are relevant to their claims (Defendants’ MSJ, Doc. 58, at p. 4). They are also correct in saying that all of the benefit plans within the Record contain these same two provisions. Id. The first provision regarding overpayment is found within the list of powers granted the Board, specifically the power “to recover any overpayment of benefits through reduction or offset of future benefit payments or other method chosen by the Retirement Board.” Plan §8.2(o); AR 00205. This provision is the grant of the general power to the Board to recover overpayments. The second overpayment provision is more specific and applies to the actions taken by the Board in its final decision in February, 2018 (AR 05277-05287). The Defendants allege that Keys provided false information to the Board, which caused Keys to receive amounts under the Disability Plan to which he was not entitled, asserting that the 2002 car accident, not his NFL career, caused him to be disabled. The relevant provision of the 2017 Retirement Plan provides as follows: “12.12 Recovery of Certain Overpayments. If false information submitted by or on behalf of a Player causes the Player to receive amounts under the Disability Plan to which such Player is not entitled, any future disability benefit payable to the Player or his beneficiary . . . under Articles 5 or 6 of the Plan will be reduced by the amount of the overpayment from the Disability Plan, plus an interest rate of 6% per year.” (AR 00221). B. The Board’s Decision and the Plans’ Efforts to Seek Alleged Overpayments From Keys Does Not Comply With the Plan Requirements Under §12.12 As argued in Keys’ Motion for Summary Judgment and in this response, Keys did not provide false information to the Board nor has he ever received amounts under the Plans to which he was not entitled. Keys’ 2003 T&P application was accurate. Further, there was no campaign of misrepresentation by Keys that led to a decision to award him benefits to which he was not entitled. In order to claw back paid benefits due to misrepresentations, the Retirement 15 Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 16 of 21 PageID 6633 Board must have substantial evidence that the misrepresentations led to an award of benefits that otherwise would not have been paid, i.e. the misrepresentations must be material and they must be substantial. Keys is entitled to the benefits that he has been paid by the Plans. C. The Defendants’ Claims for Unjust Enrichment Since Keys did not provide false information to the Plans’ administrators, and since substantial evidence within the Record supports his prior and continued right to receive Inactive A, formerly Football Degenerative, T&P disability benefits, he has not been unjustly enriched. For the same reasons that Keys should be awarded summary judgment on his claims, the Defendants’ claims of unjust enrichment should be denied in all respects . D. The Defendants’ Counterclaims are Barred by Limitations The Defendants contend that the Plans’ limitations period, Section 12.7 of the 2017 Retirement Plan, requiring benefit claims to be brought within 42 months of the final adverse benefit determination, “governs Players’ claims against the Plans, not claims Plans might bring against Players.” Defendants’ MSJ, Doc. 58, at p. 23. They are correct. There is no statute of limitations within the relevant plans that governs the Defendants’ counterclaims. As a result, because ERISA does not have a statute of limitations provision that applies to claims brought under its remedial statute §1132, the Court is to look to the forum state’s statute of limitations for the most analogous cause of action. Blue Cross & Blue Shield of Alabama v. Sanders, 138 F.3d 1347, 1356 (11th Cir. 1998). The causes of action that are analogous to the Defendants’ counterclaims are an action for breach of contract or fraud. The statute of limitations in Florida for breach of contract is 5 years. Section 95.11(2)(b), Florida Statutes. An action founded upon fraud must be brought within 4 years. Section 95.11(3)(j), Florida Statutes. When either period is applied, the Defendants’ counterclaims are barred by limitations. 16 Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 17 of 21 PageID 6634 The Defendants had notice that Keys received a $39,000 workers compensation award when the Plan office received his 2003 T&P application on September 16, 2003 (The bates stamp from the Plan office, indicating that it was received on September 16, 2003, is found on the first page of the application, AR 00781; notice to the Plans’ administrators that Keys had received a workers’ compensation award of $39,000 is on the final page of his application at AR 00786). The Plans first brought their claims for reimbursement of LOD benefits when they filed their counterclaim on June 24, 2019 (Doc. 39). Since their LOD reimbursement claim was brought more than five years after they had notice of Keys’ receipt of workers’ compensation benefits, their LOD claim is barred by the applicable statute of limitations. As evidenced by the bates label stamps, the Plans’ administrators had notice that Keys had been in a car accident, at the latest, when the DICC received the fourth page of the Janecki Accident Report and the second page of Dr. Shaker’s report on or before the date of their meeting on April 7, 2004 (Exhibit 2; the fourth page of Janecki’s Accident Report is AR 01007; the second page of Dr. Shaker’s report is AR 01014). Since their counterclaims are based upon allegations that the car accident, not participation in NFL football, caused Keys’ total and permanent disability, the Plans were required to pursue their counterclaims for reimbursement of an alleged overpayment of T&P disability benefits within four, or at the latest five years, after they received notice of the car accident. They did not do so. Thus, the Plans’ counterclaims for overpayment of T&P disability benefits are barred by the applicable statute of limitations. E. The Defendants Waived Their Claims of Overpayment The Defendants contend that the reservation of rights in their notice letters to Keys in 2017 and 2018 prevent their overpayment claims from being waived (Defendants’ MSJ, Doc. 58, at p. 23). Waiver is an intentional or voluntary relinquishment of a known right, or conduct 17 Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 18 of 21 PageID 6635 giving rise to an inference of the relinquishment of a known right. Air Prods. & Chems, Inc. v. La. Land & Expl. Co., 867 F.2d 1376, 1379 (11th Cir. 1989). The doctrine of waiver applies in ERISA benefit cases. See, e.g., Lee Memorial Health System v. Winn Dixie Stores Inc., Case No. 2:16-cv- 738, Opinion and Order, Doc. 79, at pp. 11-14. The Plans’ administrators had notice that Keys had been in a car accident when Keys provided his medical records with his application in the fall of 2003 (Exhibit 2; the fourth page of the Janecki Accident Report is AR 01007; the second page of Dr. Shaker’s report is AR 01014). Both documents were reviewed by the DICC, or at least distributed to the DICC for its review, during three separate meetings in 2004 and 2005. If those documents were indeed submitted by Keys as the Plans contend, just page 4 of the Janecki Accident Report and page 2 of Dr. Shaker’s report, the Plans’ administrators had a right during the claims process to ask for complete documents, and also have a dialogue with Keys about the 2002 accident. They chose not to do so but instead accepted the documents as submitted. The Plans’ administrators approved Keys for Football Degenerative, now Inactive A, T&P disability benefits with full knowledge of the 2002 car accident. Thus, the Plans waived their right to complain and may not now belatedly seek reimbursement from Keys for T&P disability benefits paid to him beginning in 2004. F. The Defendants Cannot Place an Equitable Lien on Keys’ General Assets The Defendants recognize that when a fiduciary makes a claim against a plan participant for equitable reimbursement under §1132(a)(3), the fiduciary cannot enforce an equitable lien against the plan participant’s general assets. Montanile v. Bd. of Trs. Of the Nat’l Elevator Indus. Health Ben. Plan, 136 S. Ct. 651, 655 (2016). There is a strict requirement that the funds be traced to a particular fund or asset. Id. at 662. Defendants have attached deposition excerpts 18 Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 19 of 21 PageID 6636 of Tyrone Keys and Bessie Keys in which the Keys testify that some bank and investment accounts may hold or have held NFL disability funds at one time or another (Exhibits L and M to Defendants’ MSJ, Docs. 58-12 and 58-13). This evidence is insufficient to attach a lien on an asset or fund. Neither Tyrone nor Bessie Keys testified with reasonable certainty that there are amounts remaining in one or more of their accounts that were paid from the Plans. Under Montanile’s strict tracing requirement, the fact that an account may hold, or once upon a time held, funds paid by the Plans is insufficient evidence to place a lien on that account. G. The Plans Cannot Reduce Keys Disability Benefit to Satisfy the Alleged Overpayment and Pursue Their Counterclaim for Reimbursement The general overpayment provision within the 2017 Retirement Plan allows the named fiduciary, the Retirement Board, to recover any overpayment of benefits through reduction or offset of future benefit payments or other method chosen by the Retirement Board.” (Section 8.2(o); AR 00205). As noted in the Board’s final decision, the Board has approved Keys for Inactive B T&P disability benefits but continue to offset this benefit to partially recover the alleged overpayment to Keys (AR 05277). Although reducing Keys’ benefits to Inactive B T&P disability benefits was an abuse of discretion for the reasons stated in Keys’ MSJ and this response, even if such a reduction were proper, the Plans would have to choose whether to offset future benefit payments or seek equitable relief through litigation. The Retirement Plan does not give authority to the Board to offset future benefits and sue a player for reimbursement. (emphasis added). In their motion, the Defendants complain that this interpretation of the Plan, providing a binary choice to the fiduciary, doesn’t make sense because it would mean that if the Plans want to continue to pursue their counterclaims against Keys, they would have to continue to pay him disability benefits each month (Defendants’ MSJ, Doc. 58, at p. 24). The Plans may not like the 19 Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 20 of 21 PageID 6637 provision and the implications that it holds, but the text is crystal clear. The fiduciary can offset future payments or exercise other options. The Defendants’ counterclaim violates the plain language of Section 8.2(o) of the Plan and should also be dismissed for that reason. V. CONCLUSION Keys’ Motion for Summary Judgment should be granted and the Plans’ Motion for Summary Judgment be denied. Keys did not present false information to the Board. The four orthopedic impairments he listed in his application were all caused by his NFL career. Accordingly, summary judgment should be granted in favor of Keys: 1) awarding him Inactive A benefits; and 2) denying the Plans’ claims of an overpayment of T&P disability benefits, as there has been no overpayment. /s/ Lansing C. Scriven LANSING C. SCRIVEN, ESQ. Florida Bar No. 729353 LANSE SCRIVEN LAW lanse@lansescriven.com 3903 Northdale Blvd., Suite 100e Tampa, FL 33624 813/940-4000 (Telephone) 813/327-4828 (Facsimile) --and-JEFFREY DAHL, ESQ. Texas State Bar No. 05310900 LAW OFFICE OF JEFFREY E. DAHL 405 N. St. Mary's Street, Suite 242 San Antonio, Texas 78205 210/527-0900 (Telephone) 210/527-0901 (Facsimile) Attorneys for Plaintiff, Tyrone Keys 20 Case 8:18-cv-02098-CEH-JSS Document 61 Filed 11/29/19 Page 21 of 21 PageID 6638 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT has been electronically filed with the Clerk of the Court using the CM/ECF system. I further certify that a true and correct copy of the foregoing will be furnished through the CM/ECF system to counsel of record on this 29th day of November, 2019. /s/ Lansing C. Scriven 21