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I d% Pension Benefit Guaranty Corporation 

z PBEc 1200 K Street, N.W.. Washington. D.C. 20005-4026 YL-lCBO 

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1 APR 1 8 2003 

Re: Appeal McLouth Steel Products Corporation 

Pension Plan (the "MSPC Plan," Case #: 173584) 

Dear- 

', 

The Appeals Board has reviewed your appeal of PBGC's April 3,2002 determination that 

you are not entitled to a disability retirement under the MSPC Plan. As explained below, we 

changed PBGC's determination by finding you are entitled to Permanent Incapacity Retirement. 

As I explained to you in my January 10,2003 letter, MSPC Plan section 2.5 ("Permanent 

Incapacity Retirement") provides that "any participant who shall have had at least 15 years of 

continuous service and who shall have become permanently incapacitated shall be eligible to retire 

on orafter November 1, 1989, and shall upon his retirement (hereinafter "permanent incapacity 

retirement") be eligible for a pension. A participant shall be considered to be permanently 

incapacitated . . . only (a) if he has been totally disabled by bodily injury or disease so as to be 

prevented thereby from engaging in any employment of the type covered by the Basic Agreement, 

and (b) after such total disability shall have continued for a period of six consecutive months and, 

in the opinion of a qualified physician, it will be permanent and continuous durmg the remainder 

of his life." 

PBGC's regulations require that, for a disability benefit to be guaranteeable, a participant 

must satisfy the conditions of the plan necessary to establish the right to receive the benefit on or 

before the earlier of the date the participant's employment ended or the date the plan terminated 

(see 29 Code of Federal Regulations (CFR) sm2.3, .4(a)(3)). PBGC's files show that your 

employment termination date for this purpose is the same as the Plan termination date of 

August 13, 1996. Based on the information'then available to the Appeals Board, you did not 

show that you met the MSPC Plan's definition of permanent incapacity on or before the Plan 

termination date. 
To support your claim that you are entitled to a Permanent Incapacity Retirement, you 

submitted additional information that included, among other items, a copy of your complete 

medical file from /3f the Detroit Institute of Physical Medicine and 

Rehabilitation, the specialist to whom you were referred by your primary care physician and who 

continues to treat you. These records document I findings from your initial visit 

(December 2, 1994) through the more than 40 visits that followed (the most recent was 

February 22,2003). 

The earlier Appeals Board decision relied on13 September 24, 1996 

letter to McLouth's Supervisor of Employee Benefits concluding that you do "not qualify for 

permanent incapacity retirement through the description in paragraph 2.5 of the ~~LouthSteel 

contract."' We have reviewed -1 stated basis for this conclusion, in light of new facts 

in the record and also of somewhat inconsistent statements in the letter itself. 

PBGC's files include documents that PBGC's auditors obtained from the prior Plan 

Administrator after the Plan terminated that show you (1) suffered a work-related injury in late 

1993, (2) received Workers' Compensation benefits from December 18, 1993 through June 7, 

1994, (3) renuned to work for about two months, and (4) went back on Workers' Compensation 

from August 29, 1994 until May 22, 1995. You then attempted to return to work in a less 

physicallydemand'ig job as a ladle and pot hauler and were unable to do so successfully. MSPC 

records show September 30. 1995 as both your "last day worked" and the date on which you 

returned to Workers' Compensation status. Your January 31, 2003 letter said you continued 

receiving Workers' Compensation until the McLouth plant closed. 

letter noted that Tlat the Detroit Rehab Center wrote a 

prescription to modify your work on a permanent basis. In an October 12, 1994 letter, 

after treating you in 1994, limited your lifting to 25 pounds, and occasionally 50. He 

added that there was "risk of injury without great caution" and that it is "sometimes difficult to 

exercise this great caution and meet productivity demands." I reported that you 

retunid to work in 1995 as a ladle and pot hauler "with restrictions," but that employment ended 

in September and you had not worked since. He also noted the fact, confirmed by documents in 

the record, that you actively sought this work, even filing a Disabilities Act grievance with 

McLouth for a job consistent with your disabilities. 

"Impressions" included fdigs that your prognosis was "poor" and your 

"pain behavior is well established." Hi "Conclusion" was that your original heavy work "would 

not be realistic." However, he said a modified work description might be developed "which 

would include no heavy lifting frequently or repetitively over 25 pounds. Then duties could be 

fulfilled as a ladle and pot hauler." In sum, 1 is predicting that your condition will not 

improve, but you would somehow be able to handle the same job you already tried, and failed, 

to do in 1995. 
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n The new documents you submitted show that you have been under continuous medical care 

3 for the pain and physical restrictions resulting from your work-related injury. The documents 

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fuaher show that, before the Plan terminated on August 13,1996, you were unable to engage in 

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4 any employment of the type coveted by the Basic Agreement and that this disabiili was expeaed 

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to be permanent and continuous during the remainder of your life. dq~rtof his 

most recent examination (Febmary 22,2003) summarizes your course of care: "The pateint has 

been under care since 12/94 . . . with the continuing li~nctionalimitations preventing his work 

and work-related activities for which no job was available within his restrictions . . ." Based on 

this information, the Appeals Board found that you satisfied the Plan's definition of Permanent 

Incapacity before the Plan termination date and are, therefore, entitled to a Permanent Incapacity 

Retirement under Plan section 2.5. 

Having applied the law, the provisions of the Plan and PBGC policy to the facts in this 

case, the Appeals Board found that you are entitled to a Permanent Incapacity Retirement. We 

will forward a copy of this letter to PBGC's insurance Operations Department, the organization 

responsible for determining and paying benefits. They will send you a new determination of your 

Permanent Incapacity benefit amount and benefit start date, with a new 45-day right of appeal. 

They will also pay you, in a single lump sum with interest, any underpayments to which you may 

be entitled. 

Meanwhile, if you have any questions, please call PBGC's Customer Service Center at 1- 

80C400-7242. 

Sincerely, 

*f5+ 

Linda M. Mizzi 

Member, Appeals Board