HomeMy WebLinkAbout07-3444f ~
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
DAVID P. DIEHL,
Plaintiff,
v.
ELECTRONIC DATA SYSTEMS
CORPORATION, and
LIFE INSURANCE CORPORATION
OF NORTH AMERICA,
Defendants
NOTICE
JURY TRIAL DEMANDED
CIVIL ACTION -LAW
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST
THE CLAIMS SET FORTH IN THE FOREGOING PAGES, YOU MUST TAKE ACTION
WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE
SERVED BY ENTERING A WRITTEN APPEARANCE, PERSONALLY OR BY AN
ATTORNEY, AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR
OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED
THAT IF YOU FAIL TO DO SO, THE CASE MAY PROCEED WITHOUT YOU, AND A
JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT
FURTHER NOTICE TO YOU OR RELIEF REQUESTED BY THE PLAINTIFF. YOU
MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
1-800-990-9108
717-249-3166
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
DAVID P. DIEHL,
Plaintiff,
v.
ELECTRONIC DATA SYSTEMS
CORPORATION, and
LIFE INSURANCE CORPORATION
OF NORTH AMERICA,
Defendants
No, a 7- 3 ~ ~f y
JURY TRIAL DEMANDED
CIVIL ACTION -LAW
COMPLAINT
ANn Now, this 25th day of May, 2007, comes David P. Diehl by and through his
attorney, JOSEPH C. KORSAK, EsQ., who files the following complaint:
1. Plaintiff David P. Diehl is an adult individual residing at 209 York Road, Jacobus,
Pennsylvania, 17407.
2. Defendant Electronic Data Systems Corporation (hereafter, EDS) is believed to be a
Texas corporation doing business in the Commonwealth of Pennsylvania. It has a
facility located at 225 Grandview Avenue, E-90, Camp Hill, PA, 17011.
3. Defendant Life Insurance Corporation of North America(hereafter, LICNA) is
believed to be a Texas corporation, with its principal place of business at 12225
Greenville Avenue, Suite 1000, Dallas, Texas.
4. Between the dates of March 13, 1993, and April 1, 2000, Plaintiff was hired as a
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contractor by EDS.
5. On or about April 1, 2000, Plaintiff was hired by EDS as an employee.
6. Plaintiff worked for EDS for approximately six (6) years.
7. Plaintiff was afull-time, active, salaried employee.
8. Plaintiff worked approximately 40 hours per week.
9. Plaintiff was employed at the EDS's Camp Hill facility until his disabling condition
became such that EDS permitted him to telecommute from home.
10. As an employee of EDS, Plaintiff was entitled, among other things, to participate in
the company short term disability plan and a long term disability plan.
11. EDS provides ashort-term disability (STD) benefit program for its employees who
aze full-time, active employees, who work at least 30 hours per week, who have
completed at least 60 days of service, and who are employed in the United States.
Plaintiff meets all the criteria for participation. (See Exhibit A, attached)
12. The STD benefit is available to an employee considered to be disabled, defined as an
employee unable to perform all the material duties of his or her occupation and unable
to earn 80% or more of his covered earnings from working in his or her regulaz
occupation.
13. Plaintiff was also entitled to participate in the company's Long Term Disability Plan.
Plaintiff, for an additional chazge, purchased coverage over and above the base line
amount of coverage available for purposes of Long Term Disability.
14. The STD benefit is not an insurance product.
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15. The STD benefit is aself-funded salary continuance payroll practice of EDS which is
administered under contract with the co-defendant Life Insurance Company of North
America.
16. At the time Plaintiff applied for the STD benefit, he met all criteria for the receipt of
benefits and continued to remain eligible so throughout.
17. The STD benefit provides for the Plaintiff provides up to 26 weeks of 100% of pay.
18. The STD benefit provided by EDS is a payroll practice, not governed by the
Employee Retirement Income Security Act.
19. The administration of the EDS STD policy is underwritten by co-defendant LICNA,
pursuant to a master agreement set forth as Exhibit B.
20. On or about May 11, 2006, Plaintiff stopped working due to lumbaz degenerative disc
disease and lumbar radiculitis. (See attached Exhibit C) Plaintiff was deemed unable
to work by his attending physicians.
21. On or about May 12, 2006, Plaintiff was granted Short-Term Disability Benefits.
22. Plaintiff engaged in physical therapy three times a week at Health South in York,
Pennsylvania from June 12, 2006, through September 6, 2006.
23. On or about August 2, 2006, Plaintiff was informed by the plan administrator that his
short-term disability benefits could not continue past July 7, 2006. (See attached
Exhibit D)
24. On or about Monday, August 7, 2006, Plaintiff contacted the Disability Claim
Manager for CIGNA to determine what was necessary to continue the receipt of STD.
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25. Co-Defendant CIGNA advised Plaintiff that a Functional Capacity Evaluation was all
that would be required.
26. Plaintiff attempted the FCE but was unable to complete due to the condition of his
health. (Exhibit E, attached)
27. Plaintiff was paid for approximately 17 weeks under the salary continuance program
(STD benefit) provided by the Defendant.
28. On or about October 23, 2006, Plaintiff returned to work working four hours a day
and taking four hours of vacation until vacation was fully consumed. The last day this
occurred was November 17, 2006.
29. During this period, Plaintiff again received his STD for an additional four weeks
more, bringing the total to 21 weeks.
29. Plaintiff timely appealed the decision by the Plan Administrator on September 22,
2006.
30. On or about October 10, 2006, Plaintiff s appeal was denied. (See attached Exhibit F).
31. Plaintiff provided substantial medical information establishing that he was disabled as
that term is defined in the STD.
32. The denial of coverage was wrongful, azbitrazy, capricious, and constitutes a breach of
the agreement by which the employer agreed to pay STD benefits to qualified
employees.
33. Plaintiff is fully qualified and entitled to the full measure of coverage available under
the EDS STD plan.
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34. In failing to honor its responsibilities, EDS owes to Plaintiff the balance of the wage
continuation plan, which would include five weeks of wages, or a total of $8720.18,
the Company's portion of the insurance premiums or $595.50, the Company
contribution to his pension of $469.08, and the Company's match to his 401 K plan of
$108.26.
COUNT 1
As Against all Defendants
35. The averments of clauses 1 - 34 are incorporated by reference.
36. LICNA at all times acted as an agent on behalf of EDS.
37. The wage continuation plan is a fringe benefit or wage supplement as those terms are
defined in the Pennsylvania Wage Payment and Collection Act.
38. EDS is an employer as defined within the Pennsylvania Wage Payment and
Collection Act (PWPCA).
39. The additional 5 weeks of compensation are now overdue.
40. Plaintiff prays for the application of the statutory penalty under the PWPCA, counsel
fees, and court costs.
WHEREFORE, Plaintiff prays for entry of judgment in excess of $10,000.00 along
with all penalties, counsel fees, and court costs.
COUNT 2
As Against EDS
41. The averments of clauses 1 - 40 aze incorporated by reference herein.
42. While an employee of EDS, Plaintiff purchased additional long term disability
coverage over and above that offered to employees.
43. Plaintiff was regularly charged for the coverage.
44. Plaintiff is further entitled to the coverage.
45. Plaintiff avers and believes that he was denied LTD solely as a consequence of being
allegedly ineligible for STD.
46. Plaintiff avers an believes that the refusal to provide the full measure of STD was in
violation of his contractual rights.
47. Plaintiff was eligible to receive $1,087.00 per week under the LTD plan.
48. To date, Plaintiff has received nothing.
WHEREFORE, Plaintiff prays for entry of judgment against Defendant EDS in a sum
in excess of $50,000.00, along with all penalties, counsel fees, and court costs.
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Respectfully submitted,
OF JOSH C. KORSAK
Date: ~ ~ f ' 1j ~ ~ 1
By:
Jose C. ~orsak, Esquire
Sup m Court Id: 22233
33 o Queen Street
Y , PA 17403
Telephone: (717)854-3175
Fax: (717)845-2643
Email: josephkorsak@comcast.net
2006 U.S. Benefits Handbook
STD Benefits for Salaried Employees
Eligible salaried employees, who have worked more than 60 days,
will receive their regular salary during the seven consecutive
calendar-day elimination period. After the elimination period
has been exhausted, STD benefit eligibility is based upon the
following schedule:
• You are a full time, active employee, working at least 30
hours or more each workweek (temporary workers, contract
laborers and seasonal employees are not eligible).
• You have completed at least 60 days of active, continuous
full-time employment, or re-employment in the case of rehired
employees or if returning from personal or educational leave
of absence.
0-2 Up to 8 weeks paid at 100% of pay; 6096
thereafter (max. 26 weeks total)
3-5 Up to 16 weeks paid 10096 of pay. 60% thereafter
(max. 26 weeks)
6+ Up to 26 weeks paid 100% of pay (maximum
Important note on overlap with FMLA: Although a seven consecutive
calendar-day elimination period applies prior to payment of STD
benefits, an eligible employee may qualify for FMIA leave of ler a
three-day absence or otherwise as specified in the FMLA or other
applicable state law.
STD benefits for all employees end on the earliest of the
following dates:
• The end of the approved maximum benefit duration
• The date the employee is no longer disabled
• The date the employee fails to provide required medical
information to support a disability claim
• The date the employee fails to provide the signed
reimbursement agreement
• The date the employee is separated from EDS employment
• The date of the employee's death
• The date the employee is no longer an Eligible Employee
Overpayments
Any STD benefits or wages that are overpaid must be repaid as
outlined in the reimbursement agreement.
How the Policy Works
Who is eligible to participate?
You are an Eligible Employee and maybe eligible for coverage
under the STD Policy if you meet all of the following conditions:
• You are employed by EDS or one of its subsidiaries or other
affiliates as designated by the appropriate committee of the
EDS Board of Directors to participate in the EDS Short Term
Disability Policy.
• You are employed in the United States.
Who is an active employee?
You are an Active Employee if you:
• Are an Eligible Employee working full-time for the employer
doing all the material duties of your occupation at: (i) your
usual place of business; or (ii) some other location that your
employer's business requires you to be
• Are a citizen or legal resident of the United States or Canada,
receiving U.S. benefits and on U.S. payroll
• Are not a temporary or seasonal employee ~'--
You will be deemed an Active Employee if:
• You meet the above conditions; and
• You are absent from work solely due to vacation days,
holidays, scheduled days off, or approved leaves of absence
not due to Disability, an educational leave of absence, or a
personal leave of absence.
What determines if 1 am disabled under short-term
disability?
You are considered "Disabled° if, solely because of injury or
sickness, you are: receiving Appropriate Care and Treatment
from a Medical Provider on a continuing basis; and,
• Are unable to earn more than 80 percent of your covered
earnings from working in your Regular Occupation; and
• Are unable to perform all the material duties of his or her
Regular Occupation
CIGNA AbilityRetums will require proof of continued disability.
"Appropriate Care and Treatment" means the determination of
an accurate and medically supported diagnosis of the employee's
disability by a Medical Provider, or a plan established by a Medical
Provider of ongoing medical treatment and care of the disability
that conforms to generally accepted medical standards,
including frequency of treatment and care.
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2006 U.S. Benefits Handbook
"Regular Occupation" means the occupation the employee
routinely performs at the time the Disability begins. In evaluating
the Disability, CIGNA AbilityRetums will consider the duties of
the occupation as it is normally performed in the general labor
market in the national economy. It is not work tasks that are
performed for a specific employer or at a specific location.
"Medical Provider" means a person who: (i) is legally licensed
to practice medicine; and (ii) is not related to you. A licensed
medical practitioner will be considered a Medical Provider:
• If applicable state law requires that such practitioners be
recognized for the purposes of certification of disability; and,
• The care and treatment provided by the practitioner is within
the scope of his or her license
Absences eligible for STD benefits are those that last more
than seven consecutive calendar days. Your inability to work
must be a direct result of your Disability.
The STD Policy does not cover any condition that results from
or is caused by or contributed to by:
• War, insurrection, or rebellion
• Active participation in a riot
• Intentionally self-inflicted injuries or attempted suicide
• Elective and/or cosmetic surgery that is not medically
required to improve health (except where mandated by
state or federal law)
• Committing a felony
Maternity Leave
EDS allows employees to work until their expected due date.
An additional two weeks off prior to the expelled due date is
available and is considered part of the disability period. However,
if any or all of this time is not used, the unused time may not
be added to the end of the maternity leave.
EDS recognizes employees have six weeks to recover after
delivery, except in the case of a Cesarean section birth, in
which case employees would receive eight weeks to recover.
If additional time offis needed beyond the EDS guidelines
due to medical reasons, a doctor's certification is required.
Maternity leave is considered the same as Short Term Disability
and, as such, receives the same consideration for salary
continuation as other illnesses and injuries. Holiday days do
not apply and will not be reimbursed retroactively if the
employee has requested or is away from work due to a FMLA
or Short Term Disability (STD) leave.
Maternity leave is courned toward your eligible FMLA entitlement.
Certain states may provide additional FMLA leave benefits.
Employees eligible for FMLA may take time for bonding
purposes beyond the disability period. Time taken away for
bonding is not eligible for Short Term Disability benefits.
Please also refer to the EDS "Parental Leave" section for
information about additional time off allowed for new births.
Please contact your HR representative for additional information.
What is the EDS policy regarding maternity leave and taking
off two weeks prior to your due date? My understanding
is that I can take off two weeks prior to the expected
due date as part of my Short Tenm Disability benefits.
Is this correct?
EDS considers the two weeks prior to the estimated due date
part ofthe employee's Short Term Disability and Family &
Medical Leave Act (FMLA) entitlement. Paid Time Off (PTO)
is taken at the employee's discretion for hourly employees
only. Salaried employees will have their salary continued as
part of the salary continuation. If an employee chooses not to
take this time off prior to the baby's birth, this time may not
be added to the end of the maternity leave.
Employees will receive six weeks paid Short Term Disability
for recovery from a normal delivery or eight weeks Short Term
Disability for a delivery via Cesarean section. Female employees
with two or more years of service, will receive two weeks of
paid Parental Leave.
Here are two examples of time allowed for a new birth by a
salaried, female employee with two or more years of service:
2 weeks prior to due date paid Short Term Disability leave, if taken
6 weeks paid Short Term Disability for a normal delivery
2 weeks paid Parental Leave
10 weeks total leave
OR
2 weeks prior to due date paid Short Term Disability leave, if taken
8 weeks paid Short Term Disability for a delivery via Cesarean section
2 weeks paid Parental Leave
12 weeks total leave
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2006 U.S. Benefits Handbook
Here is an example of time allowed for a new birth by an
hourly, female employee with two or more years of service:
2 weeks prior to due date (this includes the 7 calendar-day waiting
period during which the employee could use available PTO)
6 weeks paid Short Term Disability for a normal delivery
2 weeks paid Parental Leave
10 weeks total leave
Who qualifies as a legitimate Medical Provider?
For you to receive STD benefits, your Medical Provider must
be a person who is legally licensed to practice medicine and is
not related to you. A licensed medical practitioner will also be
considered a Medical Provider if (1) the practitioner is recognized
and authorized by applicable state law or regulations for the
purposes of certification of disability; and (2) the care and
treatment provided by the practitioner is within the scope of
his/her license.
Note: Depending upon the actual length of service and whether
you are hourly or salaried, Short-Term Disability benefits may be
paid at either 100 percent or 60 percent. Please refer to Benefit
Payable section of the Short-Term Disability Wcb site.
What does "Appropriate Care and Treatment" mean?
Appropriate Care and Treatment° means the determination of
an accurate and medically supported diagnosis of the employee's
disability by a medical provider, or a plan established by a
Employees with at least 12 months of service and 1,250 service medical provider of ongoing medical treatment and care of the
hours may be eligible for a maximum of 12 weeks of unpaid
leave within a rolling backward 12-month period under FMIA
The time off associated with Short Term Disability benefits
and the new Parental Leave runs concurrently with FMLA. For
more information on FM1J1, please refer to the FMIA Web site.
Questions & Answers
What is the "elimination period?"
The "elimination period" is the minimum length of time in
which you must be disabled to qualify for STD benefits. It
begins on the first day you become unable to work and lasts up
to a maximum of seven consecutive calendar days. During this
time, STD benefits are not payable. You must complete the
elimination period and meet all other eligibility criteria before
you are able to receive STD benefits.
Can PTO hours be used to supplement my income
while 1 am on STD?
If you are an hourly employee eligible for PTO, PTO can be
used to replace your income during the seven calendar day
unpaid elimination period. Once an STD claim is approved,
you may not use any remaining PTO hours until you have
returned to work. PTO may not be used to replace the 40
percent differential between STD benefits and an hourly
employee's regular hourly wages.
disability that conforms to generally accepted medical standards,
including frequency of treatment and care.
What if I return to work and then have a relapse of
the same condition?
If you return to work and experience a relapse of the same
medical condition for which you were already receiving STD
benefits prior to working 30 continuous days, the seven
calendar days elimination period will not apply and you again
become eligible for STD benefits for up to the maximum 26-
week period for that Disability. If your relapse occurs after
working 30 continuous days you will be filing a new claim.
What if CIGNA determines that I am able to return to
full time work, but I do not return to work, and I have
a relapse of the same condition?
If you do not return to work upon CIGNAs determination that
you are able to return to work full-time, then your STD benefits
are denied, and your leave becomes unpaid. If you have a
relapse ofthe same condition within 30 days, the claim will
remain denied.
Note: The 30 day timeframe begins on the day CIGNA determines
you were able to return to work.
Upon returning from an unpaid disability leave of
absence, when am I eligible for STD benefits?
You will be eligible for STD benefits after you have returned to
work for 30 continuous days.
<138>
2006 U.S. Benefits Handbook
What if I am out of work receiving STD benefits, and
develop a new and distinct condition?
If a new qualifying condition occurs while you are currently
receiving STD benefits, the condition will be treated as part of
the same period of Disability for purposes of benefit coverage.
STD benefits will continue for the duration of the approved
STD absence or until the maximum benefit duration of 26
weeks occurs, whichever is earlier. However, once you have
returned to work for one full day, any new and distinct condition
that occurs after retuming to work will be treated as a separate
event when determining STD eligibility, and you may qualify for
benefits of up to a maximum of 26 weeks for the new Disability.
In this event, a new seven calendar day elimination period
will apply.
Can my STD benefits be reduced?
Subject to applicable laws, your STD benefits amount will be
reduced by any recovery of disability income from athird-party
payer, or benefits from Social Security or a state disability plan
or workers' compensation Indemnity payments. If you recover
lost wages from athird-party payer or receive benefits from
Social Security or a state disability plan, and EDS STD benefits
are/were paid, you must repay EDS the lesser of the disability
income recovered or benefits received or the EDS STD benefit
that was paid based on the schedule of benefits for your
employment type, (hourly or salaried).
Additionally, if you are in a state that provides a disability
benefit, we will assume that you have applied for the state
disability benefit. If your claim for EDS STD benefits is
approved, we will assume you are receiving the state disability
payment, and your EDS STD benefit will be reduced to the
appropriate amount or stopped, In this case, you will be billed
directly for your other EDS benefits.
Will I be able to file a STD claim if my Medical
Provider refuses to complete the required forms?
It is the employee's responsibility to submit the necessary
documentation to CIGNA AbilityRetums for claim eligibility.
Therefore, a refusal by a medical provider to complete necessary
documentation could result in a denial of benefit coverage.
If my Medical Provider charges a fee for completion
of the Disability forms, am I responsible for the fee?
Yes. Any fees associated with the completion of Disability
claim forms are the employee's responsibility.
If, in the opinion of my Medical Provider or an EDS-
selected Medical Provider, I am able to return to work,
what impact will this have on my STD benefits?
If a Medical Provider finds you are capable of retuming to work
in either a full or modified-duty capacity, and you refuse to
return to work, your benefits and wages could be terminated or
stopped, and you may be subject to disciplinary action up to
and including separation from EDS. In addition, you may have
to pay any wage overpayments that you received while you
were out on unpaid or denied STD leave.
If 1 return to work under restricted duty at the direction
of a Medicat Provider, how is my pay affected?
You will receive your regular compensation for all hours worked
while on modified duty. Additionally, you could be entitled to
STD benefits for the hours in which you are unable to work.
If my position changes from an hourly position to
salaried position, how are my STD benefits affected?
If your position changes from an hourly position to a salaried
position or vice versa, you will become eligible to receive the STD
benefits based on your status the day your STD benefit began.
If I have a pre-existing condition, can I file a STD claim?
Yes. There are nopre-existing condition limitations applicable
for short-term disability benefits. However, you must satisfy all
STD benefit eligibility requirements.
If i do not agree with my Medical Provider's
prescribed treatment, will I be penalized for not
following the treatment plan?
If your inability to return to work is due to lack of compliance
with your Medical Provider's treatment plan, your STD benefits
could be denied or terminated. Therefore, if your STD claim is
denied, you will be placed on an unpaid leave.
How are payroll deductions for my other benefit
elections handled if I am receiving STD benefits?
Your payroll deductions will continue for your elected Flexible
Benefits programs. However, if your Flexible Benefits
premiums and/or deductions exceed your STD benefit amount,
you will be billed for the difference. (Note: A "family-related"
qualifying event is needed to change elections for EDS Flexible
Benefit plan purposes.) Deductions will also continue for other
programs in which you may participate, for example, the EDS
Employee Stock Purchase Plan and the EDS 401(k) Plan. (Note:
These plans may allow changes at any time). If your deductions
for these plans exceed your pay, no deduction will be made.
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2006 U.S. Benefits Handbook
What if I separate from EDS?
If you separate from EDS, your eligibility to receive STD
benefits will cease on your last day of employment.
I am a salaried employee and was hired on
September 1,1996. When will I receive 16 weeks of
STD pay at 100 percent and when will I receive the
full 26 weeks of STD pay at 100 percent?
When do I appeal?
If your STD claim has been denied and you disagree with
CIGNA's decision, you will have 15 days from the date of the
decision letter to submit your written -via letter or.e-mail -
request for appeal. This request must contain your written
request that CIGNA review your appeal and the medical
documentation that supports your claim for disability benefits.
You will be eligible to receive up to 16 weeks of STD benefits at What does CIGNA consider an appeal?
100 percent as of September 1,1999, and 100 percent of pay for
up to 26 weeks of a Disability as of September 1, 2002.
If I initially receive STD benefits and it is determined my
claim is denied, am I required to reimburse this pay?
You are required to reimburse any overpayment of STD benefits.
This is detailed in the reimbursement agreement that requires
your signature during claim filing.
What does medically approved absences mean?
CIGNA will review all medical documentation upon receipt. If
the medical documentation supports disability as defined in
the plan, your STD benefits will be approved and you will be
considered on a "medically approved absence."
What does CIGNA consider appropriate medical
documentation/proof of a disability?
In order to determine if you meet the definition of disability, it
will be necessary to submit medical documentation to support
your claim for benefits. This information may include but is not
limited to: physician's office notes, hospital records, consultation
reports, test result reports, therapy notes, physical and/or mental
limitations (i.e., Functional Capacities Testing), treatment
history including a list of prescribed drugs along with their
dosages and frequency. If you are seeing more than one
physican, it may be necessary to submit the above information
from all physicans. A note from your physician is not sufficient
and will not be considered as evidence of disability.
What if my doctor indicates I cannot work, but
CIGNA denies my claim?
A note from your physician is not sufficient and will not be
considered as evidence of disability. CIGNA will require
appropriate medical documentation from your doctor to
support their opinion that you need to be off work for a certain
time period. EDS may require a written release from your
If your claim is denied, you must send a written request to
CIGNA for an appeal. With the written request, please submit
medical documentation as described above. Please note the
documentation must cover from your date of disability tothe /
denial date forward.
How many appeals am I allowed?
Under the EDS Plan, CIGNA will consider one appeal. Therefore,
it is important to submit all medical documentation for review
with your written request for an appeal.
How will I receive my disability payments?
When your claim is submitted, EDS will continue to pay your
salary until a disability decision is made by CIGNA. If your
claim is approved, you will receive your benefits through your
normal payroll cycle. Please note, in order to receive benefits,
you must remain disabled as defined in the Plan.
Although EDS continues your pay while CIGNA is conducting a
medical investigation, this does not imply you are disabled or
are an active employee.
What happens to my pay if my Short-Term Disability
is denied?
If your short-term disability claim is denied, you will no longer
receive a payroll check from EDS.
Can I substitute vacation pay for my STD benefits if
my claim is denied?
With your manager's approval, you can substitute vacation pay
for disability benefits and wages. However, it is important to
note, this impacts your eligibility for benefits if you become
disabled again. The definition of an active employee indicates
if you are absent from work due to your own disability, you will
not be considered an active employee. You must be an alive
employee in order to be eligible for disability benefits.
doctor before you can return to work.
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2006 U.S. Benefits Handbook
Long-Term Disability
You may be eligible for LTD that may provide income
replacement protection to you after STD benefits due to
Disability have been exhausted. Basic LTD coverage is
provided to you at no cost and provides 60 percent income
replacement (before taxes). You may also elect to purchase
supplemental LTD coverage.
Who is eligible to participate?
You are eligible for tongTerm Disability benefit coverage if
you meet all of the following conditions:
• You are employed by EDS or one of its subsidiaries or other
affiliates as designated by the appropriate committee of the
EDS Board of Directors to participate in the EDS LongTerm
Disability Policy.
• You are afull-time, active employee and are regularly
scheduled to work at least 30 hours or more each workweek
(temporary workers, contract laborers and seasonal employ-
ees are not eligible).
• You have completed at least 60 days of alive continuous
employment or reemployment in the case of rehired employees.
• You are employed in the United States.
When short-term disability benefits have ended, if you are
unable to or do not return to work, you maybe separated. This
may occur regardless of whether you are eligible or approved
for tong Term Disability benefits.
Who is an active employee?
You are an Active Employee if you:
• Are an Eligible Employee working for the employer doing all
the material duties of your occupation at: (i) your usual
place of business; or (ii) some other location that your
employer's business requires you to be
• Are a citizen or legal resident of the United States or Canada
• Are not a temporary or seasonal employee
You will be deemed an Active Employee if:
You are considered "Disabled" under the tTD plan if, solely
because of injury or sickness, you are:
Receiving Appropriate Care and Treatment from a Medical
Provider on a continuing basis; and
-during your elimination period and the next 24month
period you are unable to eam more than 80 percent of
your covered eamings from working in your Regular
Occupation; and
- are unable to perform all the material duties of his or her
Regular Occupation.
After the first 24 months on LTD you are considered
"Disabled" under the LTD plan if, solely because of injury or
sickness, you are:
• Receiving Appropriate Care and Treatment from a Medical
Provider on a continuing basis; and
- you are unable to eam more than 60 percent of your covered
eamings from working in your Regular Occupation; and
- are unable to perform all the material duties of his or her
Regular Occupation.
CIGNA AbilityRetums will require proof of continued disability.
"Appropriate Care and Treatment" means the determination of
an accurate and medically supported diagnosis ofthe employee's
disability by a Medical Provider, or a plan established by a
Medical Provider of ongoing medical treatment and care of the
disability that conforms to generally accepted medical standards,
including frequency of treatment and care.
"Regular Occupation" means the occupation the employee
routinely performs at the time the Disability begins. In evaluating
the Disability, CIGNA AbilityReturns will consider the duties of
the occupation as it is normally performed in the general labor
market in the national economy. It is not work tasks that are
performed for a specific employer or at a specific location.
"Medical Provider" means a person who: (i) is legally licensed
to practice medicine; and (ii) is not related to you. A licensed
medical practitioner will be considered a Medical Provider:
• You meet the above conditions; and
• You are absent from work solely due to vacation days, holidays,
scheduled days off or approved leaves of absence not due to
Disability or a personal or educational leave of absence.
If approved, LTD benefits begin the later of 180 days, or the
end of the STD benefit period.
If applicable state law requires that such practitioners be
recognized for the purposes of certification of disability; and,
The care and treatment provided by the practitioner is within
the scope of his or her license.
<141>
2006 U.S. Benefits Handbook
Who is eligible for supplemental LTD coverage?
You are eligible if you meet the eligibility requirements for the
basic LTD benefit and you are actively at work on your effective
date of coverage after 60 days of active continuous employment.
If you enroll for supplemental tTD coverage but are not actively
at work on the effective date of coverage, your coverage begins
the day after you complete one full day of alive work.
How do I apply for LTD benefits?
If you are out on disability through the integrated disability
program, your claim will be automatically evaluated fortTD
eligibility if you are disabled for more than three months.
Failure to return the application materials may affect your
ability to receive tTD benefits. In addition to completing the
forms, you must also obtain a physician's statement that
provides your medical condition, including documentation
such as test results, office notes and treatment plans. All
completed forms and supporting documentation must be
sent to Cigna AbilityRetums, as outlined in your packet.
Basic LTD Benefits
If you qualify for basic LTD coverage, you may receive 60
percent of your total pay to a maximum monthly benefit of
$3,000 before applicable taxes.
For example, if your total pay is $48,000, you would receive
$2,400 per month of income replacement:
$48,000 total annual pay =12 months = $4,000 monthly pay
$4,000 x 60% _ $2,400 monthly benefit
The LongTerm Disability (LTD) benefit is calculated during
each annual enrollment period and is effective the following
plan year from January 1 through December 31. This benefit is
based on your "total pay." The total pay calculation is composed
of a salary as of a point in time, (July 1 of the year prior to the
effective plan year) and bonuses and commissions received
over aone-year period (July 1 of the year prior to the effective
plan year back to the preceding July 2).
For example, an employee who has a date of Disability that
occurs on any date during the year 2003, the LTD benefit will
be calculated as follows:
Your salary as of July 1, 2002, plus
Any bonuses and commissions received
from July 2, 2001, to July 1, 2002.
If approved for benefits, you will receive a disability check
once a month for as long as you are eligible for benefits. This
benefit is reduced by applicable federal, state, local taxes and
other entitlements (e.g., Social Security, Workers' Compensation,
etc.). The same reductions, exclusions, limitations, definitions
and requirements that apply to basic LTD coverage also apply
to supplemental LTD. Any LTD benefits that are overpaid must
be repaid as described in the LTD plan,
Limitations & Exclusions
Monthly benefits are limited to 24 months during your lifetime
if you are Disabled due to a mental or nervous disorder or disease,
unless your disease results from schizophrenia, bipolar disorder,
dementia or organic brain disease. If you are Disabled due to
alcohol, drug or substance abuse or dependency, monthly
benefits are limited to one period of Disability during your
lifetime. Income benefits are paid for up to 24 months while
you participate in a rehabilitative program recommended and
approved by a Medical Provider. tTD benefits are not paid if
your Disability results from:
• Intentionally self-inflicted injuries or attempted suicide
• War, insurrection or rebellion
• Active participation in a riot
• Committing a felony
Certificates of Insurance
A Certificate of Insurance for tongTerm Disability Insurance
for the employees of Electronic Data Systems Corporation is
available upon request. This information is intended to be a
summary of the Certificate that provides a detailed description
of your benefits under the LTD Plan in effect as of January 1,1998.
The Certificate will be furnished within 30 days after receiving
a written request for the Certificate of Insurance for Long Term
Disability Insurance. Send requests to EDS Disability Services,
5400 Legacy Drive, H3-1C-53, Plano, TX 75024.
Questions & Answers
What about pre-existing conditions?
LTD benefits will not be available for any Disability due to a
pre-existing condition until you have been an active employee
under this plan for 12 consecutive months. Apre-existing
condition is a Disability for which you, in the three months
before your date of coverage, received medical treatments,
consultation, care or services, took prescription medications or
had medications prescribed. Pre-existing condition rules also
apply to any supplemental increase in coverage.
< 142 >
2006 U.S. Benefits Handbook
What happens to my medical, dental and life benefits?
While receiving LTD benefits, you and your dependents may
continue health and dental benefits on an after-tax basis for 30
months from the first day of your disability. Life insurance may
be continued for the duration of the disability.
You will be billed each month for these premiums. Premiums
are due to be paid by the first of each month. If the premium is
not received by the first of the following month, coverage will
be canceled. If you wish to lower your health, dental or life
insurance coverage, you may do so within 31 days of being
approved for tTD benefits. You may not increase your employee
life insurance once you receive approval for LTD benefits.
Your medical and dental coverage will continue if you remain
"totally disabled" under the terms of the LTD plan and if you
have applied for and been denied Medicare coverage. Coverage
is subject to the contribution requirements of the EDS Health
Benefit Plan. Employee coverage ends when you become eligible
for Medicare. Dependents who want to continue coverage must:
• Have been enrolled in the plan when you became totally Disabled
• Be continually enrolled in the plan for at least 30 consecutive
months since your disability occurred
• Have no other group insurance available
Once you are approved for Social Security disability benefits, you
may be Medicare-eligible 24 months from that date. Contact the
Social Security Administration department at least two months
prior to the date your health benefits will end and enroll. This
should ensure a smooth transition for your health insurance benefit.
If you or your dependents have other coverage, continuation of
EDS coverage after 30 months is available only for existing
conditions that are limited to or excluded by your other coverage.
Your monthly benefit, including your rehabilitation incentive
(below) when applicable
• The amount of your eamings for working while Disabled
The combined sum will never exceed 100 percent of your pre-
disabilityeamings. After the first 24 months of LTD benefits, your
monthly benefit will be reduced by 50 percent of your eamings
from working while Disabled. Upon request, you must provide
CIGNA AbilityRetums any evidence needed to verify eamings.
What is the rehabilitation incentive?
While Disabled, your monthly benefit is increased by 10 percent
when you participate in a rehabilitation program approved by
CIGNA AbilityRetums. This rehabilitation incentive will begin
if you:
• Retum to active employment on either apart-time orfull-time
basis to enable you to resume gainful employment or service in
an occupation for which you are reasonably qualified taking
into account your training, education, experience and past
eamings; or
• Participate in vocational training or physical therapy deemed
appropriate by a rehabilitation coordinator from the CIGNA
AbilityRetums team.
During the first 24 months of LTD benefits, when you work or
participate in a rehabilitation program approved by CIGNA
AbilityRetums, you may also be reimbursed for eligible family care
expenses that you incur when participating in a rehabilitation
program (up to $250 for each family member living with you as
part of your household and chiefly dependent on you for support).
Family expenses include child cam by licensed facilities or qualified
providers for eligible family members under age 13 and care
for an eligible family member who, as a result of a mental or
physical impairment, is incapable of caring for himself or herself.
Employees on tTD who have opted out of EDS medical, dental
or life insurance will not receive the benefit dollar associated
with those plans.
Can I still make 4O1(k) contributions?
No, you are ineligible to contribute to the EDS 401(k) Plan or
Employee Stock Purchase Plan while on LTD.
What happens to my LTD benefits if I work at EDS or
at another company while Disabled?
If you work while Disabled, you will receive the sum of the
following amounts:
Eligible family care expenses do not include services provided
by a member of your immediate family, services provided by
anyone living in your residence or expenses for which you are
eligible for reimbursement under any other group plan or from
any other source.
Will my LTD benefits (basic and supplemental) be
reduced by other income benefits?
Your monthly LTD benefit will be reduced by:
• The amount of Social Security disability income you and
your dependents are awarded. Under the tTD plan, federal
cost-of-living adjustments to your Social Security disability
award will not further reduce your tTD benefit payments.
<143>
2006 U.S. Benefits Handbook
• The amount of any disability income provided or available
from any employer's pension plan
• The amount of any disability income provided by any group
disability income or health insurance plan, if EDS makes
contributions or payroll deductions to the plan
• The amount of any disability and/or retirement income you
receive, attributable to EDS' contributions to the EDS
Retirement Plan
• The basic reparations portion for loss of income of a law
providing for payments without determining fault in connection
with automobile accidents; supplemental disability benefits
you buy under a no-fault auto law will not be counted
• The amount of disability income provided by any compulsory
benefit act or law and/or any sick pay/salary continuation,
other than vacation pay, paid to you by EDS
• The amount of any disability income provided by any Workers'
Compensation, Occupational Disease, Maritime Maintenance
& Cure, Unemployment Insurance and similar law/program
• The amount of recovery you receive for loss of income as a
result of claims against a third party by judgment, settlement
or otherwise
You are guaranteed a $100 minimum monthly payment from
the LTD Plan, regardless of other income benefits.
Wili my LTD benefits be taxed?
LTD benefit payments are not subject to Social Security or
Medicare taxes. However, the LTD basic benefit payments are
subject to federal income tax and any applicable state income
and city taxes. The supplemental LTD benefit payment is not
subject to federal income tax or any applicable state or city
taxes for claims with a date of disability of January 1, 2003, or
later. This is because the premiums were paid with post-tax
dollars beginning January 1, 2003.
What is the LTD survivor benefit payment?
If you die while you are receiving income benefit payments
under this plan, an eligible survivor may be entitled to receive
a lump-sum survivor's benefit. This payment is equal to three
times your monthly LTD income benefit, before reductions for
other income benefits. The amount of survivor's benefits payable
is reduced by any overpayments that may have occurred.
An eligible survivor is one of the following:
• Our surviving spouse
If there is no surviving spouse, your unmarried children or
your spouse's unmarried children under age 25. The term
children also includes adopted children and children placed
for adoption until legal adoption. Payment will be divided
into equal shares among eligible children.
Survivor's benefits will be paid to your eligible survivor on the
date one month after the last monthly benefit payment was
made before your death. However, if there is no eligible survivor
on the date payment is due to be paid, no payment will be made.
Payment to a minor child may be made to an adult who
submits proof satisfactory to us that he or she has assumed
custody and support of the child.
What if I separate from EDS?
When you separate from EDS, you maybe eligible to buy a
conversion policy for your LTD coverage if you have been an
alive employee under this plan for 12 consecutive months
prior to the date your employment ends, for reasons other than
retirement. Contact EDS Disability Services at 1 972 605 7335.
You will then need to complete the conversion application and
pay the first premium for the Long Term Disability conversion
plan within 31 days after your coverage under this plan ends.
Evidence of insurability is not required.
Supplemental LTD Benefits
You may buy additional income replacement coverage through
supplemental LTD benefits. The cost of this supplemental
coverage is based on the option you choose and your total pay.
Monthly premiums are paid on apost-tax basis. You may enroll
for supplemental LTD coverage within 31 days of your start date
or during the annual EDS Flexible Benefits open enrollment.
If you make less than $60,000 in total pay, you may purchase
supplemental LTD coverage that will bring your total income
protection level up to 70 percent.
If you make more than $60,000 in total pay, you have the
option of purchasing supplemental tTD coverage that will
bring you up to the 60 percent income protection level. The
60 percent option is made available because the maximum
monthly benefit for the Basic LTD Plan is $3,000. if you make
more than $60,000, your monthly benefit would exceed that
maximum. Therefore, this option allows you to receive 60
percent income replacement beyond the company-paid limit.
<144>
Case 1:06-cv-02222-CCC Document 16-2 Filed 05/02/2007 Page 14 of 23
CLAIM CONSULTING AGREEMENT
Advice to Pay -Certification of Disability and Benefet Calculation
No. SHD-985005
Between: ELECTRONIC DATA SYSTEMS CORPORATION
Plano, Texas
("Employer"}
And: LIFE INSURANCE COMPANY OF NORTH AMERICA
Philadelphia, Pennsylvania
{"Consultant")
Effective: January 1, 2004
WHEREAS, Employer sponsors aself-funded salary continuance payroll practice (the "Plan") for
its employees; and
WHEREAS, Consultant is qualified and experienced as an administrator of benefits under plans
similar to the Plan; and
WHEREAS, Employer desires to retain Consultant to provide the services specified herein for the
proper administration ofthe Plan;
IN CONSIDERATION OF the mutual promises herein contained, the parties agree as follows
Section 1. The Plan.
As used in this Agreement, "Plan" refers to the salary continuance payroll practice provided by
Employer to its employees, together with any modifications to the Plan made in accordance with
this Section. A copy of the Plan as existing on the effective date of this Agreement is included as
Schedule C. Employer warrants that it has provided eligible employees with a complete and
accurate description of the benefits provided by the Plan.
Employer reserves the right to modify, amend, or terminate the Plan. Employer agrees to notify
Consultant in writing of any such modification, amendment or termination, or of any acquisition,
divestiture, merger or other corporate reorganization which may affect employee eligibility.
Implementation of any of the foregoing shall be mutually agreed upon by the Employer and
Consultant, subject to data processing systems changes, retroactive effective dates, adjustments in
Consultant's compensation, and other adjustments and procedure changes made necessary thereby.
• .
Case 1:06-cv-02222-CCC Document 16-~ Filed 05/02/2007 Page 15 of 23
Consultant is entitled to rely on the teens of the Plan as set forth in Schedule C and shalt not be
responsible for administering any changes in the Plan until 34 days after receipt of written notice
of such changes, and after any adjushnents described in the preceding paragraph have been agreed
upon.
Section 2. Performance of Services.
Consultant agrees to furnish the services specified in Schedule A in connection with the PIan.
These services may be modified upon agreement of the parties. Any such modification (and the
revised administration charge, if any, applicable thereto) shall be evidenced by letter agreement
between the parties which, upon execution, shall become a part ofthis Agreement.
Employer shall remain responsible for performance of all services in connection with the Plan
other than those provided for in this Agreement. Without limiting the generality of the foregoing,
this shall include all activities relating to the enrollment of eligible employees, maintenance of
eligibility and enrollment records and salary information, furnishing such information to
Consultant when necessary for the determination of any claim for benefits under the Pian,
calculating benefits payab}e, issuing benefit payment checks, notifying employees of approval. or
denial of the claim and handling routine inquiries from employees; as well as any other duties and
responsibilities reserved to the Employer in Schedule A.
Section 3. Consultant's Compensation.
In return for the performance of the specified services, Employer agrees to pay Consultant the fees
set forth in Schedule B on a monthly basis. In addition, Employer shall reimbwse Consultant for
any expenses or liabilities provided for in Section 6 of this agreement which are incurred by
Consultant. Consultant shall bill Employer monthly at a single location or at multiple locations as
requested by Employer and invoices shall specify fees charged for covered employees at each
location as requested by Employer and as agreed to by Consultant. Employer shall provide 30
days notice of any change that would affect the billing of multiple locations. Payment of fees
shall be due on the I Sa' of the month following the month to which the fees relate. Fees not paid
within 30 days of the due date will be assessed a late charge at the rate of 13% per annum.
Employer shall remain liable for all fees billed to separate locations.
The fees set forth in Schedule B shall be subject to change as provided for in Sections 1 and 2 of
this Agreement. In addition, Consultant shall have the right to revise the schedule of fees at the
end of the initial term of this Agreement, or at any time thereafter, by giving Employer not less
than 90 days prior written notice. Further, Consultant shall have the right to review and revise the
schedule of fees if the covered employee population change +/- 10% due to expansion or
reduction, acquisitions, divestitures, new business ventures, etc.
Section 4. Term of the Agreement.
This Agreement shall be effective for an initial term of 12 months commencing with the effective
date shown above. This Agreement shall thereafter automatically continue, until terminated as
provided for herein.
-2-
Case 1:06-cv-02222-CCC Document ,16-2 • Filed 05/02/2007 Page 16 of 23
Either party may terminate this Agreement as of the end ofthe initial term, or at any time
thereafter, by giving the other party at least 90 days advance written notice.
This Agreement shall automatically terminate upon the termination ofthe Plan or upon the
effective date of any statute, regulation, or court decision which would prohibit the activities of the
parties under this Agreement.
Consultant may terminate this Agreement immediately, upon written notice to Employer, in the
event Employer fails to pay the fees and, if applicable, charges as provided in Section 3 within the
time specified, or otherwise breaches any provision of this Agreemen#. Any such notice shall state
with particularity the reasons therefor, and shall not be effective unless Employer shall fail within
30 days to pay the fees due or initiate and pursue the cure of any other breach, and to resolve the
breach to Consultant's reasonable satisfaction within 90 days of such notice.
Employer may terminate this Agreement at any time, following written notice to Consultant, in the
event Consultant fails to perform the services required under this Agreement in a manner
reasonably satisfactory to Employer, or otherwise breaches any provision of this Agreement. Any
such notice shalt state with particularity the reasons therefor, and shall not be effective unless
Consultant shall fait within 30 days to initiate and pursue the removal of such grounds to the
reasonable satisfaction of Employer.
This Agreement may be terminated as of any other date that is mutually agreed upon by the
parties.
Upon termination of this Agreement for any reason, Consultant shall cease the processing of all
Plan claims then in its possession, and shall make all records relating to claims in process
reasonably available to the Employer.
Section 5. Service Staadards• Liability
Consultant shall use ordinary and reasonable care in the performance of its duties, but shall not be
liable to the Employer for mistakes of judgment or other actions taken in good faith.
Consultant agrees to indemnify and hold harmless Employer, and its parents, affiliates, directors,
officers and employees (excluding employees who bring litigation described herein)
("Indemnitees") from and against all claims, liabilities, losses, damages and expenses, including
court costs and reasonable attorneys' fees, but excluding costs described in Section 6 of this
Agreement, incurred by Indemnitee solely as the result of litigation undertaken by an employee of
Employer against Indemnitee seeking redress for alleged improper determination, denial or
termination of benefit payments hereunder, where Employer, acting solety on direction provided
by Consultant, denies or terminates such benefit payments. This obligation to indemnify and hold
harmless shall not arise with regard to claims, liabilities, losses, damages and expenses which do
not arise directly and solely as a result of the negligent act or omission, criminal actor willful
misconduct of Consultant. This obligation shall apply only with respect to claims denied or
terminated an or before December 3 t, 2006.
-3-
,
. .
Case 1:06-cv-02222-CCC Document 18-~ Filed 05/02/2007 Page 17 of 23
Section 6. Liability for Benefits. Expenses and Taxes
This is not a contract of insurance and Consultant shall not underwrite any risk of the Plan. All
liability for payment of claims made under the Plan shall rest with Employer. Consultant acts only
as the provider of the services described in this Agreement and, with respect to Plan participants,
acts only as the agent of the Employer.
Except as otherwise expressly provided in this Agreement, all expenses and liabilities incident to
the operation of the Plan shall be the Employer's responsibility. Without limiting the generality of
the foregoing, Employer shall be responsible for:
• Any state or federal tax, however denominated, including but not limited to premium taxes,
taxes based on sales or gross receipts, and employment taxes, together with any penalties and
interest, assessed on the basis of and/or measured by (i} the amount of Plan benefits; or (ii) the
amount of Consultant's fees hereunder.
• Any costs or expenses incurred by Consultant in obtaining medical records, attending
physician statements, reports of insurance support organizations, medical or rehabilitation
consultant reports, or any other item of expense incurred with respect to any particular claims
for benefits under the Plan.
• The defense of any legal action or proceeding to recover benefits under the Plan, and any legal
liability arising in connection with any such action or proceeding (other than liability assumed
by Consultant under Section 5 of this Agreement).
This obligation shall survive the termination of this Agreement.
To avoid misunderstanding by third parties concerning the respective duties and liabilities
hereunder, the Employer agrees not to use Consultant's name or logotype in any release or printed
forms without the prior written approval of Consultant.
Section 7. Record Retention and Review.
All documents relating to the determination of benefit claims shall be the property of the
Employer subject to Consultant's right io possession and use during the continuation of this
Agreement. Upon 30 days' advance written request and execution of any audit agreement, such
documentation shall be made available to the Employer, at Employer's expense, for its auditor
inspection during regular business hours at the places of business where it is maintained by
Consultant. Upon termination of this Agreement, such documentation shall be returned to
Employer. Any liability resulting from Employer's use or disclosure of such information or
documentation shall be the sole responsibility of the Employer.
Employer's property interest and right of access shall not extend to any claim data recorded for or
otherwise integrated into Consultant's data processing systems during the ordinary course of
business. Consultant shalt maintain such data records for the periods of time required by law and
subject to the privacy and confidentiality requirements ofa11 applicable laws.
-4-
. ~ I
Case 1:06-cv-02222-CCC Document 16-2 ,Filed 05/02/2007 Page 18 of 23
Section 8. General Provisions.
a. This Agreement constitutes the entire contract between the parties and, subject to the
provisions of Sections 1, 2 and 3, no modification or amendment hereto shall be valid unless in
writing and signed by an officer of each of the parties.
b. This Agreement shall be governed by, and shall be construed in accordance with the laws of
the Commonwealth of Pennsylvania, without regard to its principles of conflict of laws.
c. The failure of either party to insist upon strict adherence to any term of this Agreement shall
not be considered a waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term of the Agreement.
d. Consultant may, at any time, without prior notice to or approval from Employer, assign any or
all of its rights or obligations under this Agreement to an affiliate of its choice.
e. Neither Consultant nor any of its ofiicers, directors or employees shall be deemed to be an
employee of Employer. Neither Emp}ayer nor any of its officers, directors or employees shall
be deemed to be an employee of Consultant. The sale relationship of the parties is that of
independent contractors.
f. This is an agreement solely between Employer and Consultant. It shall not create any right or
legal relation whatever between Consultant and any person other than the Employer, including,
without limitation, any employee of Employer or any participant in the Plan.
IN WITNESS WHEREOF, and intending to be legally bound, the parties have signed this
Agreement.
LIFE INSURANCE COMPANY OF
NORTH AMERICA
Date February 28, 2005
' ; :.....
tuegory Fi. iS-ollr:Pre~denc
ELECTRONIC DATA SYSTEMS
CORPORATION
Date
By:
Title:
-5-
. ,
Case 1:06-cv-02222-CCC Document 16-2 Filed 05/02/2007 Page 19 of 23
SCHEDULE A
DESCRIPTION OF ADMINISTRATIVE BENEFITS
I. CLAIlVI ADMINISTRATION
Basic Review of Claims
Consultant will provide Employer with a supply of Consultant's standard disability claims forms,
or Consultant will provide Employer with an electronic or telephonic means for collection of claim
form information. Employer shall furnish Consultant's telephone number or claim forms to all
employees who provide notice of claim. For paper claim form, Employer will complete the
employer portion of the claim form and will forward completed claim forms to Consultant. fior
electronic or telephonic claim form, Employer will provide employer information as requested by
Consultant.
Consultant will provide the initial and ongoing screening of claims to determine whether benefits
are payable in accordance with the terms of the Plan. Where required, and at Employer's expense,
Consultant will seek and obtain information from medical providers and others necessary to
determine qualification for benefits and amount thereof. Consultant will review the expected
claim duration against duration guidelines used by the claim office at the dme of the claim and
deternnine the reasonable duration based on feedback from the claimant's attending physician, as
appropriate. Consultant will advise Employer, with respect to each claim, as to whether, in
Consultant's judgment, the claim is payable under the Plan. If payable, Consultant will advise
Employer of the approved payment period and amount payable under the terms of the Plan.
Employer shall be responsible for making the final decision with respect to all claims, for
communicating such decisions and the amount payable to the claimants and Consultant, and for
funding and issuing all benefit payments.
In determining any person's right to benefits under the Plan, Consultant shall rely upon eligibility
information furnished by the Employer. It is mutually understood that the effective performance
of this Agreement by Consultant will require that it be advised on a timely basis by the Employer
during the continuance of this Agreement of the identity of individuals eligible for benefits under
the Plan. Such information shall identify the effective date of eligibility and the termination date
of eligibility and shall be provided promptly to Consultant in a form and with such other
information as may reasonably be required by Consultant for the proper administration of the Plan.
Employer acknowledges that its prompt and complete furnishing of the required eligibility and
income information is essential to the timely and efficient review by Consultant of claims for Plan
benefits.
Screening and Implementation for Rehabilitation and Social Security Benefits
Consultant shall at appropriate times and intervals screen ail claims for rehabilitation potential and
for potential entitlement for Social Security benefits.
-b-
Case 1:06-cv-02222-CCC Document 16-~
Rehabilitation Assistance
Filed 05/02/2007 Page 20 of 23
Where Consultant determines that a claimant has the potential for successful rehabilitation and re-
employment, Consultant shall develop and implement a rehabilitation program for the claimant.
Social Security Appeal Assistance
Where Consultant determines that a claimant potentially qualifies for Social Security disability
benefits, Consultant will notify claimant, providing general information concerning filing far
benefits and providing assistance with appeals if benefits are denied.
Standards for Qnaiity Assurance
Where required in Consultant's judgment, Consultant will consult with its in-house medical
director and with other qualified professionals to determine whether a claimant is disabled and
whether the claimant's disability is covered in accordance with the terms of the Plan and
applicable laws.
Consultant sha[l regularly audit a random sample of claims from Consultant's claim offices that
are not dedicated to a specific account to assure that determination of disability has been proper,
payment periods and benefit payments have been property calculated, and that Consultant's
general standards for the proper and timely handling of claims have been followed.
In the event Consultant finds that i# has advised that a benefit payment to any person be less than
the amount to which he is entitled under the Plan, Consultant will promptly report the
underpayment to Employer. In the event Consultant finds that it has advised an overpayment to
any person entitled to benefits under the Plan, or advised payment of benefits to any person who is
not entitled to them, Consultant shall promptly report the overpayment to Employer. Employer
shall be responsible for recovering the overpayment Consultant shall not be required to initiate
court proceedings to recover an overpayment.
Handling of Inquiries. Complaints and Appeals
Subject to Section 5. of the Agreement, Consultant shall have no duty or obligation to defend
against any legal action or proceeding brought to recover a claim for Plan benefits. Consultant
shall, however, make available to the Employer and its counsel, such evidence relevant to such
action or proceeding as Consultant may have as a result of its administration of the contested
benefit determination.
-7-
',
~~ ~~/ ~aaar a tP
g ln: Pah~ Mans . F_Iscbodra . M ta! Dfsaders. / Mwiiai~. Genera/RehsbiGtetlan
Bruce E. Sia'1i8, M. D. BoaRO cERnF/ED: An-ericrn Bamd ~Physla~t Msat~i~ne a R.n~r~~°n
'~IariaP. delosAnge%s, M.D. '~of°~0a`M~~
Arnricsri cord aPair, Are~a6otne
Initial Evaluation
Re: David P. Diehl
June 7, 2006
DOB: 5/24149
York Neurosurgical Associates
2319 South George Street
York, PA 17403
Dear Dr. Krzeminski,
HPI: Thank you fot your referral. Mr. Diehl is a 58 year old gentleman with chronic low back Pain. ~ fen flow
back sya~toms for > 6 months. Symptoms occurred somewhat spontaneously when he was standing,
Pops in his low back_ Sinx that limo he's had excruciating low back pain limiting his ability to work. He works at
hoar, but his job requires prolonged sitting and he's been unable to do that so far because of pain and if be takes
pain medication he's too groggy to concentrate on the cmnputer. 'This work~up including CT scan of the pelvis, MRI
of the lumbar spine, hmobar discogtam reveals huubar ~ disc disease. Facet i~edions wen not
beneficial. He has not had physical therapy- I saw him in 2003, for diacogenic tow back pain, that resolved to a
manageable level with an epidural steroid injection. He feels the pain has been getting worse gradually. The pain in
the low back is constant bet intc~cntly severe with radiation into ~ 1~ and hoes. Pain is worse with standing,
twisting, sitting and wal>ong. Pain levels are rated at 6. Activity level is cxtr+emely limited and he reports having to ~j pn ~
lie down on the sofa to get relief from his back pain. Mood is obviously very depressed. Sleep Pattern is Poor. Bahr
~~, sly revealed increased uptake at Ifl 5. Flexion extension x rays of the himbar spine are unremarkable for
instabtlity, there is degenerative changes.
Medication: Paxil 20 mg darly, allopurino1300 mg daily, colchicine 0.6 mg daily, loratadine 10 mg daily, Azmacort
inhaler, propoxyphene 2 or 3 tablets a day, soma 2 or 3 tablets a day.
Allergies: Penicillin
Past Medical History: Gastroesophageal refhnc disease, Gout, obstructive sleep apnea, ncphmlithiasis ,occipital
skull fracture 1966, left wrist fracture as a child, asthma. amnety and depression.
Past Surgical History: IDET lumbaz spine 2003, left cataract extraction. 9/~~ ~D6
Faintly History: colon cancer, heart disease.
Social History: Employed as a computer analyst, no tobacco use and no alcohol use, presently disabled in the
process of applying for short term disability.
ROS: Negative fever, skin rash, weight change, headache, bhmed vision, seiwres, chest pain, SOB, nausea,
vomiting. diarrhea, constipation, stomach pain. liver disease, bowel income, bhuickr inccx, ,
positive lower limb and mmobness, positive low back stiffness, joie aching, negative swelling, Positive fatigue,
spasm, cramping,
Physical Ezam
Height 5 foot 10 inches Weight 230 pounds 1'uLse 72 regular
The patient is alert, oriented, and well nourished. Speech is clear and the face is symmetric.
There is no skin rash. Pedal pulses are palpable. He is in a moderate amount of distress.
1881 Loucks Road 423 S. Wa~gton 57met
Gsltysbag, PA 17325
Yak, PA 17408 (717) 339-099~D
(717J 7s4-o843/o8ao FAx(7~7~ 7s4-1sn1
FAxn17~ ~s4-~sn1
E'iwerra vnagr
,_,_,~ CIGhA Group Insurance
~~225+'(Ire~hvill~Avenue
Suite 1000
Dallas,lX 75243-9337
Phone: 800-352-0611 ex~ 5604
Fax: 860-731-3511
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MR DAVID D1EHL
209 YORK ROAD
YORI{, PA 17407
August 2, ZU06
Name:
Employee ID:
Plan/Policy Number:
Plan/Policy Holder:
Administered By:
DEAR MR D1EHL,
,, ~ ~ .7 ~
DAVID DIEHL
01083961
SHD0985005
ELECTRONIC DATA SYSTEMS
Life Insurance Company of North America
CIGNA Group Insuran
Life • Accident • Disability
This letter is regarding your Short Term Disability (STD) claim. After completing our review of your claim, we are
unable to continue paying benefits beyond July 7, 2006.
your contract contains the following provision:
"The employee is considered Disabled if, solely because of Injury or Sickrsess, he or she is:
1. Unable to perforyrt all Ilse mater~ia! duties of his or her Regular Occupation: and "
Z. Unctbte to earn 80'/ or more of his or her Covered Earnings from working in his or her Regular Occupation.
"Appropriate Care means the determination of an accurate and medically ~PPo~ diagnosis of the Employee's
Disability by a PhJ~ician, or a plan established by a Physician of ongoing medical treatment and cxtre of the Disabilig-
that conforms tv generally accepted medical standards, includingfrequency of treatment and care."
"The occupation the Employee routinely performs at the time the Disability begins. In evaluating the Disability, we will
consider the duties of the occupation as it is normally performed in the general labor market in the national economy. l
is not r+~ork tasks that are performed for a specif c employer or at a spec f c location."
We recently completed a review of the informmation on file. Specifically, this included:
• Office visit notes from Dr. Maria delosAngeles dated June 16, 2006
• Office visit notes from Dr. Bruce Sicilia dated June 29, 2006
• Office visit notes from Dr. Diane Zimardo dated July 12, 2006
• Office visit notes from Dr. Ica Garonzik dated July 3, 2006
• Medical Request Form completed by Dr. Ira Garonzik dated July 24, 2006
Medical information reviewed provides no clinical basis to support any measured changes in your condition after your
previously approved through date of July 7, 2006, or to provide measured functional deficits to a severity to preclude yt
from performing the material duties of your occupation beginning July 8, 2006. Medical information was reviewed by
the Claim Manager, Nursc Case Manager, and the Associate Medical Director and it was determined that information
•CIGNK and'CIGNA Getup ka:uw~w•• ~ roy~laiad:arviu made and rdara,rarioue uaeuTxw auhs"af~iaa °~ gGNA Corpordioa Produeb and aani~ees "ie povidea by Mesa
suhekfiarisa and net by CIGNA CeTnraUa2 These au6sidiadas inducts LYe k~sutanea Company of Nath Amedea• CIGNA LHa Ineuranea Company of Nair Yak. and Camseticut General
~ ~ ` n
• ` . august 2, 2006 '`
Page 2
received after the last approval date was inadequate in establishing clinical measurable deficits that support the
limitations and restrictions of your off work status. The Associate Medical Director observed that there is no new
s treatment plan outlined in any of the clinical documentation presented. Dr. Sicilia stated his scepticism regarding the
a h sicians did
~~ option of surgery and recommended the contim~ation of conservative therapy. In addition, your treating p y
not outline any return to work plan.
.~.e
~~ At this time your claim has been closed and no further benefits are payable.
ass:
~: You may request a review of this denial by writing to the attention of the representative signing this letter at:
Life Insurance Company of Nortb America
12225 Greenville Ave.
Saite 1000
Dallas, TX 75243
The written request for review must be sent within 15 days of the date of this letter and state the reasons why you feel
your claim should not have been denied. Please inch~de anY medical evidence, which supports your contimrting
disability. Medical evidence includes, but is not Limited to physician's office notes, hospital records, consultation report
test result reports, therapy notes, Physical and/or mental limitations (ie. Functional Capacities Testing), treatment histo:
including a list of prescnbed drugs along with their dosages, frequency and response, etc• These records should cover
from duly 8, 2006 through the present. A note from your physician is not sufficient and will not be considered as
evidence of disability. tCIGNA will not reach out to any of yoar physiciiana for additional information. If due tQ
eztenmting circumstanes, yon are unable bu provide the medical docnmenhtion within 15 days, we mast be
notified immediately. Please be advised that you are entitled to access of relevant documents, records, and other
information that was used to make this determination. This information w~71 be supplied upon your request.
Under normal circumstances, you will be notified of a decision on your appeal within 45 days of the daft your request
for review is received. If there are special circumstances requiring delay, yon will be notified of the reason for delay
within 30 days of receipt of your request, and every 30 days thereafter. A final decision will be made no later than 90
~-
Nothing contained in this letter should be tom'trued as a waiver of any rights or defenses under the policy. This
determination has been made in good faith and without prejudice under the teams and conditions of the contract, whetht
or not spocific~lly mentioned herein. Should yon have any information which would prove contrary to our findings,
please submit it to us. We will be pleased to review any information yon may wish to submit.
Please review your insurance booklet, certifiarte or coverage information available from your employer to determine if
-~ you-are eligible feF-additional benefits: - -- - - --~- - - - - - -
Your leader will discuss with you any reimbursement to I:DS for disability benefits that were over paid to you as a resu
of the denial or closure of your claim.
Your Short-Term Disability (STD) may also qualify as a FMLA leave under your company's Family Medical Leave Ac
(FML.A) policy. You wdl receive additional information ender s~arate cover from our CIGNA Leave Solutions servic
ceirter regarding your FMLA status.
Please contact our office at 800-352-0611 ext. 5604 should you have any futher questions.
sincerely,
~~~ or~~
Emeka Ohagi
Disability Claim Manager
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` • Karen L HIchols ~ 'r. ~ « «
• Appeals Claim Manage.
CIGNA Disability Management Solutions O~
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\\ CIGNA Group Insurance
tibe . A«ident • Disebnity
October 10, 2006
12225 Greeaville Ave
DAVID DIEHL Ste. 1000 LB 179
209 YORK ROAD Dallas, TX 75243-9384
YORK PA 17407 Telephone 800-352-0611X1249
Faaimile 860-731-3211
Re: LOB Short Term Disability
Policy #: SHD 985005
Policyholder. Electzonic Data Systems
Administered by: Life Insurance Company of North America
Dear Mr. Diehl:
We have completed our review of your appeal for Short Term Disability benefits under the
above captioned Plan. We must advise you that we aze affirming our previous denial of
benefits dated August 2, 2006, (copy enclosed). Please refer to our letter for specific Plan
provisions and details regazding your denial.
The definition of disability under the above Plan is defined as follows:
Under the EDS Short Term Disability Plan, the employee is considered Disabled if,
solely because of Injury or Sickness, he or she is:
1. unable to perform all the material duties of his or her Regular
Occupation; or
2. unable to eam 8096 or more of his or her Indexed Covered Earnings
from working in his or her Regular Occupation.
Regulaz Occupation:
The occupation the Employee routinely performs at the time the Disability begins. In
evaluating the Disability, the Insurance Company will rnnsider the duties of the occupation
as it is normally performed in the general labor market in the national economy. It is not
work tasks that are performed for a specific employer or at a specific location.
For the purposes of this review we will determine whether or not you aze unable to function
in your occupation after July 7, 2006, the last date you were paid benefits under the above
group plan. The information on file indicates that your occupation is that of an
Information Specialist. This occupation as it is performed in the national economy is
sedentary in nature. The definition of sedentary work is as follows: Exerting up to 10
pounds of force occasionally (occasionally: activity or condition exists up to 1/3 of the time)
and/or a negligible amount of force frequently (frequently: activity or condition exists from
1/3 to 2/3 of the time) to lift carry, push, pull, or otherwise move objects, including the
human body. Sedentary work involves sitting most of the time, but may involve walking or
'CIGNA• and "CIGNA Group losrrtano:' arc registcrcd servim marks and refe* to vuious opwgng su6sfdiades of CIGNA
~w.44./ w...wrn. w.w.tALir .~A ww w.. I9rN • r ~n.w ...w.i.4..ar t...d...i. ~ as. 1...........~. r`........w....r wlw.
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October 10, 2006
Page 2
standing for brief periods of time. Jobs are sedentazy if walking and standing are required
only occasionally and all other sedentary aiteria aze met.
We based our decision to deny your claim for benefits on Plan language and all of the
documents contained in your claim file, viewed as a whole.
The additional medical information we received when you appealed, was records from
Steven Triantafyllou, MD, Bruce Sicilia, MD, Ira Gazonzik, MD, and Physical Therapy records
from Healthsouth. This additional information and the information already on rernrd were
reviewed as part of the whole of your appeal.
The information in your file indicates you stopped working May 11, 2006, because of your
back condition and your disability claim was approved through July 7, 2006. Your disability
claim was denied additional benefits as medical information did not support functional
deficits to prevent you from performing your occupational duties.
The new and existing medical information on file was reviewed by our Associate Medical
Director. The results of that review indicated that the medical information does not support
a functional impairment precluding your capacity to work. The records reviewed were
l3MG/NCS dated June 16, 2006, noted as positive for mild lift lateral plantaz sensory
neuropathy, but no radiculopathy, a May 25, 2006 note by Dr. Triantafyllou noted that you
might be a candidate for dernmpression, however there is no current documentation of any
significant physical, rngnitive or gsychological limitations andlor clinical infnrrnation to
support a change in our prior assessment. Your exam showed that you were overweight,
your have 4+/5 leg strength, significant loss of range of motion, not otherwise quantified,
however, the Physical Therapy note of July 12, 2006 indicates that was your start date, but it
does not contain measured lumbaz range of motion documentation. Dr. Garonzik the Neuro
surgeon recommends no sitting for more than an hour at a time, however the July 3, 2,006
note he refer to documents full bilateral lower a mules strength and again does not
document lumbar range of motion deficits. Finally the August 2, 2006, physiatrist note by
Dr. Sicilia, indicates gait pattern is normal, moderately limited lumbaz range of motion, and
normal muscle strength. There is no medical documentation on file to support significant
findings that would preclude return to work after July 7, 2006.
In conclusion our Associate Medical Director indicated that the review of the available
information does not document any significant physical limitation and/or clinically
measured functional deficits in the lumbaz area, such as measured range of motion deficits
to support the recommended sitting restrictions that would preclude working at a sedentary
level of function.
Disability is determined by medically supported functional limitations/restrictions which
preclude an inability to perform your occupation. We do not dispute you may have been
somewhat limited or restricted due to your diagnosis as your claim was initially approved
through June 9, 2006; however, we have not received sufficient clinical medical
documentation to substantiate any limitations and restrictions to support an inability in
~. •. •
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VERIFICATION
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The undersigned verifies that the statements made in the foregoing instrument which
aze within the personal knowledge of the undersigned, aze true and correct, and as to the facts
based on the information of others, the undersigned, after diligent inquiry, believe them to be
true. And further, this Verification is signed on the recommendation of my attorney, who
advises me that the allegations and language in this document aze required legally to raise
issues for resolution at trial, by the Court, or by continuing investigation and prepazation for
trial. I understood that some of these allegations may prove inappropriate after investigation
and trial prepazation are complete and I leave the determination of these matters to my
attorney on his advice.
I understand that all statements herein are made subject to the penalties of 18
Pa.C.S.A. §4904 relating to unsworn falsifications to authorities.
Date: ~ ~`f ~ 7'
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Alan R. Boynton, Jr.
PA 39850
Kimberly M. Colonna
PA 80362
McNees Wallace & Nurick LLC
100 Pine Street, P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000 (telephone)
(717) 237-5300 (facsimile)
Counsel for Defendant
Electronic Data Systems Corporation
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
David P. Diehl,
Plaintiff,
v.
Electronic Data Systems Corporation
and Life Insurance Company of North
America,
Defendants.
CASE NO. 07-3444
NOTICE OF FILING OF NOTICE OF REMOVAL
OF CIVIL ACTION TO FEDERAL COURT
TO THE CLERK OF THE ABOVE-ENTITLED COURT
AND TO PLAINTIFF DAVID P. DIEHL AND
HIS ATTORNEY OF RECORD:
PLEASE TAKE NOTICE that on July 3, 2007, Defendant Electronic Data Systems
Corporation filed with the United States District Court for the Middle District of Pennsylvania
the original of a Notice of Removal of Civil Action (the "Notice"), together with copies of all
process, pleadings and orders served upon it in the above-captioned action.
A copy of the Notice is attached hereto as Exhibit A and is served upon you. The filing of the
Notice effects the removal of this action and this Court of Common Pleas may proceed no further
unless the case is remanded.
McNEES WALLCE & NURICK LLC
By - ~ - ~r~--
Alan R. ynton, Jr.
PA 39850
Kimberly M. Colonna
PA 80362
McNees Wallace & Nurick LLC
100 Pine Street, P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000 (telephone)
(717) 237-5300 (facsimile)
Counsel for Defendant
Electronic Data Systems Corporation
Of Counsel:
Michelle B. Anselmo
manselmo@bakerlaw.com
Martin T. Wymer
mwymer@bakerlaw.com
Baker & Hostetler LLP
3200 National City Center
1900 East Ninth Street
Cleveland, OH 44114-3485
(216) 621-0200 (telephone)
(216) 696-0740 (facsimile)
Dated: July 3, 2007
2
E~"~bk ~
1. On or about November 13, 2006, David P. Diehl ("Plaintiff') initiated
a civil action against Defendant Life Insurance Company of North America
("LINA") by filing a complaint with this Court, captioned David P. Diehl v. Life
Insurance Company of North America, Case No. 1:06-CV-2222, (the "First Federal
Action"), a copy of which has been attached as Exhibit A.
2. That action was premised solely on alleged violations by LINA of the
Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001-1461,
arising from denial of short term disability benefits under the Short Term
Disability Policy (the "STD Policy") maintained by EDS, Plaintiffls former
employer.
3. LINA moved to dismiss the complaint on the grounds that the single
claim made by Diehl did not arise under federal law, because the EDS STD Policy
is not a "benefit plan" within the meaning of the federal ERISA. Specifically,
LINA demonstrated the EDS STD Policy was a payroll practice, funded solely by
EDS with benefits paid out of EDS' general assets, and therefore excluded from
the coverage of ERISA.
4. All issues relevant to LINA's motion to dismiss were fully briefed by
the parties.
2
4. On May 3, 2007, this Court granted LINA's motion and dismissed
Plaintiff's claim on the grounds that the Court lacked subject matter jurisdiction
because the STD Policy could not be characterized as an ERISA plan. A copy of
the Court's Memorandum and Order is attached hereto as Exhibit B.
5. On or about May 25, 2007, Plaintiff filed a complaint with the Court
of Common Pleas of Cumberland County Pennsylvania, captioned David P. Diehl
v. Electronic Data Systems Corporation and Life Insurance Company of North
America, Case No. 07-3444 (the "State Court Action"), a copy of which has been
attached as Exhibit C.
6. In the State Court Action, Plaintiff reasserted his claim for benefits
under the STD Policy against both EDS and LINA. He brought these claims under
the Pennsylvania Wage Payment and Collection Act and not ERISA.
7. Unlike the First Federal Court Action, Plaintiff also included for the
first time a claim in which he alleged he was entitled to long term disability
benefits under EDS' Long Term Disability Plan (the "LTD Plan"). See Exhibit C
at ¶¶ 41-48.
8. The first date upon which any Defendant was served with a copy of
the complaint was June 13, 2007.
3
9. This Notice of Removal is timely filed within 30 days after the first
Defendant was served and all Defendants consent to and join in the removal of this
action. (Exhibit D -Consent of Defendant LINA).
10. This Court has federal question jurisdiction as provided in 28 U.S.C.
§ 1331 and 28 U.S.C. § 1441(b). Count II of Plaintiff s State Court Action arises
out of Plaintiff s alleged entitlement to benefits under EDS' LTD Plan which,
unlike the STD Policy, clearly is an employment benefit plan governed by ERISA.
11. Insofar as Plaintiff's claim in Count II is for long term disability
benefits, it arises under the Employee Retirement Income Security Act ("ERISA"),
29 U.S.C. § 1001 et seq. and, therefore, raises a federal question. As such, it is
properly removed to this Court.
12. Removal is not made for purposes of delay and EDS is not attempting
to engage in a game of jurisdictional ping-gong. However, the claim over which
this Court has jurisdiction -the ERISA claim for LTD benefits -was not asserted
initially in the First Federal Action and for some reason was asserted for the first
time in the State Court Action. Thus, neither LINA nor EDS had any reason to
believe a federal question was being asserted, or would be asserted, by Plaintiff at
the time LINA filed its motion to dismiss in the First Federal Action.
4
13. EDS files with this Notice of Removal a copy of all process,
pleadings, and other papers served upon it or filed by all parties in the State Court
Action prior to the filing of this Notice of Removal (see Exhibit C).
14. EDS has provided a copy of this Notice of Removal to Joseph E.
Korsak, counsel of record for Plaintiff, as well as to counsel for LIMA. In addition,
EDS has filed a copy of this Notice of Removal with the Clerk of the Court of
Common Pleas of Cumberland County Pennsylvania.
WHEREFORE, EDS requests that the Court take jurisdiction in this Notice
of Removal and issue all necessary orders and process in order to remove the
above-captioned case from the Court of Common Pleas of Cumberland County,
Pennsylvania to the United States District Court for the Middle District of
Pennsylvania.
McNEES WALLCE & NURICK LLC
By s/Kimberly M. Colonna
Alan R. Boynton, Jr.
PA 39850
Kimberly M. Colonna
PA 80362
McNees Wallace & Nurick LLC
100 Pine Street, P.O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000 (telephone)
(717) 237-5300 (facsimile)
Counsel for Defendant
Electronic Data Systems Corporation
Of Counsel:
Michelle B. Anselmo
manselmo@bakerlaw. com
Martin T. Wymer
mwymer@bakerlaw.com
Baker & Hostetler LLP
3200 National City Center
1900 East Ninth Street
Cleveland, OH 44114-3485
(216) 621-0200 (telephone)
(216) 696-0740 (facsimile)
Dated: July 3, 2007
6
CERTIFICATE OF SERVICE
I hereby certify that on July 3, 2007, a copy of the foregoing Notice of
Removal was served upon the following through the means indicated:
By First Class Mail, postage pre-paid:
Joseph C. Korsak
Law Office of Joseph C. Korsak
33 North Queen Street
York, PA 17403
Counsel for Plaintiff, David P. Diehl
Christina McNally
CIGNA Group Insurance Law Department
Two Liberty Place - TL 16J
1061 Chestnut Street
Philadelphia, PA 19121
Counsel for Defendant, Life Insurance Company of North America
s/Kimberly M. Colonna
Kimberly M. Colonna
PA 80362
CERTIFICATE OF SERVICE
I hereby certify that on July 3, 2007, a copy of the foregoing Notice of Removal was
served upon the following through the means indicated:
B_y First Class Mail, postage pre-paid:
Joseph C. Korsak
Law Office of Joseph C. Korsak
33 North Queen Street
York, PA 17403
Counsel for Plaintiff David P. Diehl
Christina McNally
CIGNA Group Insurance Law Department
Two Liberty Place - TL16J
1061 Chestnut Street
Philadelphia, PA 19121
Counsel for Defendant, Life Insurance Company of North America
Kimbei+ly . Colonna
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SHERIFF'S RETURN - REGULAR
CASE NO: 2007-03444 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
DIEHL DAVID P
VS
ELECTRONIC DATA SYSTEMS ET AL
MEGAN GILBRIDE Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
ELECTRONIC DATA SYSTEMS CORPORATION the
DEFENDANT
at 1704:00 HOURS, on the 13th day of June 2007
at 225 GRANDVIEW AVENUE E-90
CAMP HILL, PA 17011 by handing to
RANDY IRELAND, ADULT IN CHARGE
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 14.40
Postage .41
Surcharge 10.00
/~ .00
~ ~ 191 7 `'7"~' 4 2.81
Sworn and Subscibed to
before me this day
of ,
So Answers:
R. Thomas Kline
06/14/2007
By:
JOSEPH KORSAK
' -Deputy Sheriff
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