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“With regard to Dr. Wender’s report, the Committee concluded that this report was received a significant amount of time after the denial in this case occurred, and the Committee felt that Dr. Maser who had been treating Ms. Wolf throughout the entire disability period was in a better position to provide an opinion on her condition around the time of the original denial of benefits.”

Dr. Wender’s report specifically stated that Ms. Wolf was unable to work in any

capacity at the time of his examination. This necessarily implies that Ms. Wolf was

disabled at the time of the decision. This fact did not matter to Delta.

Ms. Wolf filed suit against Delta for the wrongful termination of her benefits.

When Delta discovered that Ms. Wolf had been determined as being totally and

permanently disabled by the Social Security Administration and was receiving benefits,

Delta sued for the overpayment of benefits due to the Social Security offset provision in

the Plan24.

A moving party is entitled to summary judgment if the pleadings, affidavits and

other supporting papers show there is no genuine issue of material fact and the movant is

entitled to judgment as a matter of law. Fed. R.Civ.P., 56(c); Celotex Corp. v. Catrett,

477 U.S. 317, 322, 91 L.Ed. 2d 265, 106 S.Ct. 2548 (1986). “The burden of establishing

the absence of a genuine issue of material fact is on the party seeking summary

judgment.” United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of America, 894 F.2d

1555, 1557 (11th Cir. 1990)(citations omitted). Once this burden has been met, the

adverse party must show there remains a genuine issue for trial. Fed.R.Civ.P., 56(e).


Delta was specifically asked whether it was aware that Ms. Wolf was receiving Social Security benefits.

This question was denied. Request for Admissions (attached as

), number 31. Plaintiff admits

that she is receiving total disability benefits from the Social Security Administration, but if Delta’s response to Request number 31 is accurate, then it had no good faith belief of the veracity of its allegations when it filed suit.


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