United States District Court, M.D. Florida, Tampa Division
Charlene Edwards Honeywell United States District Judge.
cause comes before the Court upon Defendants' Motion to
Dismiss Count Three of Plaintiff's First Amended
Complaint (Doc. 38) (the “Motion”) and
Plaintiff's response in opposition (Doc. 41). In the
Motion, Defendants argue that Count III of Plaintiff's
First Amended Complaint should be dismissed because a
plaintiff cannot assert a claim for equitable estoppel based
upon silence under the Employee Retirement Income Security
Act, 29 U.S.C. § 1132 (“ERISA”). Plaintiff
disagrees, arguing that the Court should allow his claim to
proceed because the doctrine of equitable estoppel based upon
silence furthers ERISA's scheme and goals. The Court,
having considered the parties' submissions and being
fully advised in the premises, will grant the Motion.
STATEMENT OF FACTS
Tyrone Keys (“Keys”) played in the National
Football League (“NFL”) for seven seasons as a
defensive lineman. Doc. 35 at ¶ 5. He played from 1983
until he had to retire in 1989 due to football injuries to
his back, knees, and shoulder. Id. Shortly after his
NFL career ended, Keys submitted a disability claim to
Defendant, the Bert Bell/Pete Rozelle NFL Player Retirement
Plan (the “Plan”), a multi-employer pension and
welfare benefit plan. Id. at ¶¶ 2, 6. Keys
submitted the claim to the Plan administrators due to his
significant football-induced impairments. Id. at
time Keys submitted his initial disability claim, there were
three relevant classifications of disability benefits: (1)
Line of Duty Benefits, awarded to players who have a
“substantial disablement” due to playing NFL
football but who are considered not totally disabled; (2)
Football Degenerative Total and Permanent
(“T&P”) benefits awarded to players who are
considered to be substantially prevented from engaging in any
occupation, i.e. totally disabled, due to
impairments caused by playing NFL football; and (3) Inactive
T&P benefits, awarded to former NFL players who are found
to be totally and permanently disabled but whose disability
is considered to be unrelated to their NFL football careers.
administrators for the Plan (collectively, the “Plan
Administrators”) include (1) the Disability Initial
Claims Committee (the “DICC”), an entity
consisting of two people, one appointed by the NFL Players
Association and one appointed by NFL management, and (2) the
Retirement Board (the “Board”), an entity
consisting of six people, three appointed by the NFL Players
Association and three appointed by NFL management.
Id. at ¶ 7. The DICC is the initial decision
maker and the Board members are the Plan fiduciaries who
conduct the fiduciary review of a claim that has been denied.
1991, Keys submitted a claim for Line of Duty benefits.
Id. at ¶ 9. Once Keys submitted his claim for
Line of Duty benefits, the Plan Administrators sent him to
one of its top orthopedic physicians, Hugh Unger, M.D., for
an evaluation. Id. Dr. Unger performed his first
evaluation of Keys on December 9, 1991, approximately two
years after Keys' last season. Id. Dr. Unger
noted that Keys suffered a herniated lumbar disc and tore the
meniscus of his right knee in 1989, his last season.
Id. Dr. Unger also noted that Keys sustained a
cracked glenoid rim of his right shoulder while playing.
Id. By 1991, Keys had been through knee, back, and
shoulder surgeries for NFL-related injuries. Id.
examining Keys in December 1991, Dr. Unger reported the
following NFL- related impairments to the Plan
Administrators, predicting that the impairments would
degenerate further with time:
Impression: Chondromalacia of the patella, bilateral
Degenerative arthritis of the right shoulder and Glenolabrial
disease Osteoarthritis of the medial and lateral patellar
facets and of the medial femoral condyle
Status post foraminotomy and discectomy, L4 5
Id. at ¶ 10. Dr. Unger also evaluated the
degree of Keys' NFL-related impairments. Id. at
¶ 11. He reported that Keys had a 50 to 59 percent loss
of use of his back as a result of playing in the NFL, a 30 to
49 percent loss of use of his shoulder as a result of playing
in the NFL, and a 60 to 79 percent loss of use of both knees
as a result of playing in the NFL. Id. In the
additional remarks section of the report to the Board in
1991, Dr. Unger wrote as follows:
This patient has multiple extremity involvements, with
arthritis of the right shoulder, chondromalacia of both
knees, and tear of the medial meniscus. It is anticipated
that further degeneration in the right shoulder may develop
in time and he may develop early arthritic changes in his
Board awarded Keys Line of Duty benefits based upon Dr.
Unger's findings and opinions. Id. at ¶ 12.
Dr. Unger examined Keys annually at the Plan
Administrators' request up until 1999. Id. At
each examination, Dr. Unger found the same degree of
NFL-related impairments. Id.
was paid Line of Duty benefits for the maximum period
available of five years. Id. at ¶ 13. Prior to
those benefits expiring on December 1, 1997, Keys requested
that his benefits be reclassified as Football Degenerative
T&P benefits. Id. at ¶ 14. That request was
denied in 1997. Id.
7, 2002, Keys was involved in a minor automobile accident.
Id. at ¶ 15. His car was hit from behind while
stopped at a red light. Id. The accident aggravated
his pre-existing professional football injuries but had no
effect on the permanent injuries he sustained playing NFL
September 2003, Keys re-applied for Football Degenerative
T&P benefits. Id. at ¶ 16. In his
application, he listed his impairing conditions caused by
playing NFL football. Id. He relied upon the
opinions of his treating physicians, an independent medical
examination, and his medical history in attributing the
following impairments to his NFL football career:
Condition 1 I have unfortunately cervical spondylosis with
upper extremity radicular symptoms referred to as
radiculopathy. I am unable to sit for much more than 10
minutes without having to stand. I am unable to stand for
more than 5 minutes without having to sit.
Condition 2 I unfortunately have significant spondylosis
lumbar spondylosis with facet arthropathy at multiple levels
& lower extremity radiculopathy. I am unable to complete
a work day because of having to constant alternate between
sitting & standing every few minutes to relive (sic) the
pain. I herniated my lumbar in the last NFL game.
Condition 3 I unfortunately have degenerative joint disease
chondromalacia & osteochondrel defect of the humeral and
osteochondrel defect of the humeral & osteochondral
defect of the glenoid rim and degenerative tears of the
glenoid. I am scheduled to begin pain management consultation
next week. I landed on my shoulder & was never told that
it was cracked by team doctors.
Condition 4 I have chondromalacia patella in both knees. I am
unable to sit for more than 10 minutes without having to
stand up to relieve the pain. I also cannot stand for more
than 10 minutes because of the pain. I am to begin pain
management consultation to include facet injection &