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Barboza v. California Association of Professional Firefighters

June 23, 2009


The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge


This matter is before the court on (1) plaintiff David Barboza's ("plaintiff") motion for judgment on the administrative record, pursuant to Fed. R. Civ. P. 52 and (2) defendants'*fn1 motion for summary judgment, pursuant to Fed. R. Civ. P. 56.*fn2 In this action, brought under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., plaintiff seeks recovery of long term disability benefits under the relevant Plan provided by defendant CAPF. CAPF has agreed to pay plaintiff benefits subject, however, to certain offsets it contends are permissible under the Plan. Plaintiff disputes the applicability of any offsets and seeks payment of his benefits in full.

Before reaching the substantive merits of the parties' motions, the court must address a threshold issue. In moving for summary judgment, defendants contend, in the first instance, that plaintiff's action should be dismissed for failure to exhaust administrative remedies. Because the court finds that plaintiff has failed to exhaust the CAPF Plan's administrative remedies, and plaintiff has no valid excuse for failing to do so, the court does not reach the merits of the parties' dispute regarding the amount of benefits due under the policy.

For the reasons set forth below, defendants' motion for summary judgment is GRANTED on the basis that plaintiff failed to exhaust his administrative remedies prior to bringing the instant suit. Plaintiff's cross-motion is accordingly DENIED.


CAPF offers a long term disability plan to eligible firefighters in California. CAIS is the independent third-party administrator for the CAPF Plan. (Defs.' Reply to Pl.'s Stmt. of Admitted and Disputed Facts in Opp'n to Defs.' MSJ [Docket #29-2], filed June 5, 2009 ["UF"],*fn3 ¶ 1.) Prior to March 2006, plaintiff was a firefighter for the City of Tracy and a participant in the CAPF Plan. Plaintiff held the rank and position of Battalion Commander and, in that position, did not routinely respond to fires. In or about December 2005, the City decided to eliminate the Battalion Commander position. By letter dated March 2, 2006, plaintiff was given an official notice of layoff from the City Manager. According to the letter, plaintiff had four choices: (1) he could retire if eligible by virtue of his age and years of service; (2) he could accept a layoff effective March 21, 2006; (3) he could resign from the Tracy Fire Department, or (4) if determined by the Personnel Manager to be qualified, he could accept a demotion to Fire Captain. (UF ¶ 2.)

Plaintiff was too young to retire and did not want to accept a layoff or resign. (UF ¶ 3.) He was also not physically qualified to accept the Fire Captain position. Plaintiff injured his back in 1993 or 1994 and filed a claim for benefits under the workers' compensation system. His disability was found to be permanent and stationary, and he was given a permanent work restriction for "no very heavy lifting" by his doctor. (UF ¶ 4.) Plaintiff was able to continue work, and he received regular treatments from a chiropractor, but his back never got better. (Id.) In 1999, he was promoted to Division Chief, but the pain from his prior back injury was getting worse. (UF ¶ 5.) The position changed to Battalion Commander in 2003, a position that was primarily a supervisory one involving mostly desk work. Despite this change, the pain in plaintiff's neck, back and shoulders became more of a problem in 2003-2004. (Id.) The pain was spreading down his back and he developed peripheral neuropathy in his legs, which caused pain, numbness and tingling. In 2005, he was rated "marginal" in his mandatory agility testing. (Id.)

In early March 2006, Tracy Fire Chief Bosch called plaintiff in for a meeting to inquire whether in light of his physical condition, plaintiff could safely do the job of Fire Captain. (UF ¶ 6.) Plaintiff told Bosch he did not know if he could safely perform the job physically and asked if there were any other positions available. Chief Bosch said that there were not and sent plaintiff to Dr. Patel to determine if he was physically qualified to perform the duties of the Fire Captain position. (Id.)

Plaintiff reported to work as a Fire Captain on or about March 21, 2006. (UF ¶ 7.) He was subsequently evaluated by Dr. Patel on March 27, 2006. Dr. Patel found plaintiff physically unqualified for the Fire Captain position due to his previously sustained back injury and peripheral neuropathy. Dr. Patel placed permanent work restrictions on plaintiff that prevented him from repetitive lifting above 40 pounds, repetitive bending at the waist, and repetitive stooping, and he could only occasionally work at height or climb a ladder. (UF ¶ 8.)

The City placed plaintiff on administrative leave the following day. (UF ¶ 9.) After two months of paid administrative leave, the City gave plaintiff a disability retirement from the position of Fire Captain. (Id.)

On or about March 29, 2006, plaintiff contacted CAIS to discuss filing a long-term disability claim because he was physically unable to perform the duties of Fire Captain. CAIS advised plaintiff to review the benefits available to him under California Labor Code § 4850, as CAIS understood plaintiff's acceptance of retirement benefits may preclude him from receiving benefits under Section 4850, and that any long-term disability claim made under the CAPF Plan would be offset by the benefits available to him under that code section.*fn4 (UF ¶ 10.) CAIS also advised plaintiff to file a workers' compensation claim for cumulative trauma to his back. (Id.) Defendants assert plaintiff advised CAIS that he would have his workers' compensation attorney file a workers' compensation claim for cumulative trauma and seek benefits under Section 4850. As such, defendants maintain they believed that plaintiff would receive these benefits. (UF ¶ 11.) Plaintiff contends, to the contrary, that he told CAIS that he would receive Section 4850 pay only until his disability retirement went through, as his physical condition was permanent and stationary, thereby precluding him from receiving Section 4850 benefits. (Id.) Plaintiff filed a workers' compensation claim, and CAPF subsequently filed a lien in the workers' compensation proceeding. Plaintiff disputes that defendants' lien was properly filed and perfected. (UF ¶ 12.)*fn5

Plaintiff did not pursue the statutory benefits available under Section 4850 and, instead, accepted retirement due to permanent disability. He was granted disability retirement by the City effective May 16, 2006. On May 31, 2006, he filed a written claim for disability benefits under the CAPF Plan. (UF ¶ 14.) After receiving plaintiff's claim, CAIS asserts it made several attempts to communicate with plaintiff and his attorney to discuss the issue of Section 4850 benefits, but it received no response. As a result, CAIS presumed that plaintiff had applied for and was receiving the Section 4850 benefits it believed he was entitled to, and thus, there was no immediate need for a determination on plaintiff's long-term disability claim. (UF ¶s 15-16.) Plaintiff contends CAIS's presumption was unreasonable since it knew plaintiff had been retired for a permanent disability since May 16, 2006, which plaintiff contends made him ineligible for Section 4850 benefits. Plaintiff asserts he was entitled under the Plan to a claims' decision within 45 days of filing his claim. (Id.)

On October 7, 2006, plaintiff faxed a letter to CAIS complaining that he had not been given any explanation for why he was not being paid long-term disability benefits from defendants and requesting payment of his benefits because his injuries were permanent. (White Decl. in Supp. of Pl.'s Mot., filed May 8, 2009, Ex. 1 at 0007.) CAIS responded on October 13, 2006, stating that plaintiff needed to obtain legal advice immediately before allowing his first PERS retirement payment to be deposited in his account, as CAIS believed plaintiff could no longer receive further Section 4850 benefits once he began receiving PERS payments. (Id. at 0008.) CAIS attempted to contact plaintiff's attorney to discuss this issue with him as well, but counsel never responded to CAIS. (Id. at 0008-0009.)

On May 2, 2007, CAPF received a letter from plaintiff inquiring why he was not receiving benefits for his claim. (UF ¶ 17.) This was the first time since October 2006 that CAPF had been contacted by plaintiff. (UF ¶ 18.) On May 18, 2007, CAIS denied plaintiff's claim for disability benefits on the ground there was "no documentation on file to show that [plaintiff was] disabled from [his] Own Occupation as a chief officer and you were able to work ...

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