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WATERFALL, ECONOMIDIS, CALDWELL, 

 HANSHAW & VILLAMANA, P.C. 

5210 E. Williams Circle, #800 

Tucson, AZ 85711 

(520) 745-7810 

Barry Kirschner/SBN 005592/PAN 31284 

bkirschner@waterfallattorneys.com 

Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Jeffery Wallace, 

 Plaintiff,

vs. 

Freeport-McMoRan Inc. Health & Welfare 

Plan, Plan Identification Number 597; and, 

The Hartford, 

 Defendants. 

D.C. No. 

COMPLAINT 

Plaintiff Jeffery Wallace (“Wallace”) alleges for his Complaint: 

1. This dispute is within the jurisdiction of the United States District Court 

for the District of Arizona. 29 U.S.C. §1132 (a)(1)(B) and (a)(3). Venue is proper. 

2. Wallace was a long term employee of Freeport-McMoRan (“Freeport”) 

and a participant in the Defendant Freeport-McMoRan Inc.’s Short Term Disability 

Plan, a component plan of the Freeport-McMoRan Inc. Health & Welfare Plan, Plan 

Identification Number 597 (“Plan”). Freeport-McMoRan was then known as Phelps 

Dodge Corporation with its headquarters in Phoenix, Arizona. 

3. The Freeport-McMoRan Inc. Plan is administered through its office in 

Phoenix, Arizona. 

4. Defendant The Hartford Insurance Company (“Hartford”) is an insurer 

which makes itself available to insure, and to administer Policies of insurance and 

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claims for Plans, including within Arizona and plans governed by the Employee 

Retirement Income Security Act (ERISA), 29 U.S.C. §1101 et seq. 

5. The relevant insurance group disability protection in which Wallace is a 

participant is part of a contract between the Plan and Hartford to provide benefits to 

employees such as Wallace. The Plan is within the scope of ERISA. 

6. The purpose of Congress in enacting the Employee Retirement Income 

Security Act (ERISA) is described in 29 U.S.C. §1001(b): 

It is hereby declared to be the policy of this chapter to protect 

interstate commerce and the interests of participants in employee 

benefit plans and their beneficiaries, by requiring the disclosure 

and reporting to participants and beneficiaries of financial and 

other information with respect thereto, by establishing standards of 

conduct, responsibility, and obligation for fiduciaries of employee 

benefit plans, and by providing for appropriate remedies, sanctions, 

and ready access to the Federal courts. 

29 U.S.C. §1001(b). 

7. All procedures which must be exhausted prior to bringing this civil action 

have been exhausted. This claim is ripe for decision by the United States District Court. 

8. Defendants Hartford and Freeport owe a fiduciary duty to its Plan 

participants including Wallace. 

9. Defendants have acted with bias in not providing a full and fair review of 

Wallace’s claim for short term disability benefits, and related appeals. 

10. Wallace had medical problems which became disabling by Spring 2016. 

11. Defendants recognized Wallace was disabled and entitled to STD benefits 

effective March 18, 2016 through June 12, 2016. 

12. Wallace returned to work June 10, 2016. 

13. Medical ailments persisted and Wallace obtained additional medical work 

up including from a team of doctors at the Mayo Clinic in Rochester Minnesota, and 

with Dr. Christopher Marsh in Tucson. 

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14. Defendants again acknowledged disability and approved resumed STD 

benefits effective October 4, 2016. 

15. As of October 21, 2016 Wallace’s prescribed medications included 

Duloxetine, Neurontin, Naltrexone, Liothyronine, Levothyroxine, and Lyrica. 

16. Defendants approved continued benefits noting: “Med supports ext of 

claim as ee is unable to perform his occ as a Sr. Engineer which involves Open pit 

above ground combination of driving, short range mine planning, driving in pit, 

working on computer. In a vehicle 20% of the day. Up to 10 hrs per day. . . .” In 

context, “ee” refers to employee Wallace. 

17. Wallace’s STD benefits were terminated effective November 20, 2016. 

18. Prior to being represented by counsel, Wallace timely appealed the 

termination of his STD benefits. 

19. The Wallace appeal was denied. 

20. By letter dated January 18, 2017, Hartford denied Wallace’s next appeal. 

Hartford’s letter accepted the diagnosis of fibromyalgia. It also stated: “There are no 

objective findings noted on the attending physicians’ statement. Upon review of all the 

medical information contained in your file, we are unable to conclude that your medical 

condition prevents you from performing the duties of your occupation including driving 

and lifting 30 lbs.” 

21. Wallace again appealed, to Freeport on February 1, 2017. This appeal 

was denied by a May 22, 2017 letter from the Plan Administrator in Phoenix, Arizona. 

22. Through all appeals, Defendants never obtained a functional capacity 

evaluation (“FCE”), or paid for an independent medical examination (“IME”). 

23. To assist in denying Wallace’s claim, Defendants hired a doctor, Amido 

Hameed, to perform a “paper review” without examining Wallace. The reviewer 

worked through a for-profit organization called “Medical Review Institute of America, 

Inc.”. 

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24. The Hameed medical review described that a January 5, 2017 “....note 

verifies diagnoses of fibromyalgia, hypogammaglobullnemia, history of Valley Fever 

and history of urinary tract infections. Hameed’s conclusion was there is no objective 

medical evidence in the attached medical records to support inability to perform the 

essential duties as described. 

25. The termination of benefits is based on Defendant’s statements that there 

is no objective evidence in support of the claim. 

26. The termination of benefits is not based on objective findings which 

contradict the history of Wallace’s complaints of fibromyalgia and related diminished 

function. 

WALLACE AND HIS OCCUPATION 

27. Wallace is a Mining Engineer and has been since 1993 for Freeport, then 

known as Phelps Dodge. From 2002-2013 Wallace worked at the Sahuarita mine in 

Pima County, Arizona. 

28. Wallace has long worked in an occupation which includes responsibilities 

to drive in an open pit mine up to 10 hours/day. 

29. The regular occupation performed by Wallace is critical to the operation 

of a mine and the safety or employees and others who may be at or near the mine site. 

30. As a Senior mining engineer, Wallace’s substantial and material duties 

include a combination of driving, short range mine planning, driving in the pit of the 

mine, and working on a computer. Wallace’s employer estimates performance for his 

regular occupation includes being in a vehicle 20% of the day. Sometimes up to 10 

hours in a vehicle in a single day is required. 

31. The terrain in the pit is unpaved, at times very steep, and more challenging 

than driving on a public highway. Walking in the pit includes walking near explosives, 

loose rock, and uneven terrain, sometimes complicated by significant slope. Driving in 

the pit is rough requiring multi-tasking, recognizing changing hazards, complex 

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intersections, steep drops or climbs, and coordinating movement with very large moving 

machinery at different rates of speed. In short, it is dangerous to walk or drive in the pit 

while fatigued or influenced by the effect of powerful medications even when they are 

prescribed for a recognized condition. 

32. After becoming aware of Wallace’s symptoms and medical limitations in 

November 2016, his employer advised Hartford that the limitations placed by Wallace’s 

medical providers could not be accommodated for Wallace to perform his occupational 

duties. 

33. The Physical requirements of the Mining Engineer is described by 

Wallace’s employer: 

a. Work is in a mine or manufacturing plant setting, which may 

include exposure to extremes in temperature and humidity, moving 

mechanical parts, risk of electrical shock, toxic chemicals, 

explosives, fumes or airborne particles. 

b. While performing the duties of this job, the employee is regularly 

required to stand, sit, demonstrate manual dexterity, climb stairs 

and ladders, work on elevated platforms, talk, hear and see. 

c. Occasionally may be required to lift moderately heavy objects (up 

to 30 pounds) during the course of the workday. 

d. Personal protective equipment is required when performing work 

in a mine, outdoor, manufacturing or plant environment, including 

hard hat, hearing protection, safety glasses, safety footwear, and as 

needed, respirator, rubber steel-toe boots, protective clothing, 

gloves and any other protective equipment as required. 

34. Freeport requires a work environment in which operation of heavy 

equipment or driving in mine locations is not consistent with certain medications even if 

those medications are prescribed for medical ailments. 

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WALLACE AND FIBROMYALGIA 

35. Wallace was diagnosed with fibromyalgia in 2005. He was able to 

continue work on a continual basis until 2016. 

36. Wallace’s fibromyalgia is associated with the onset of pain in multiple 

locations and fatigue. 

37. Wallace was examined by a team at the Mayo Clinic in Rochester, 

Minnesota in the summer of 2016. Findings and assessments of the medical team 

include that Wallace meets the criteria for diagnosing fibromyalgia using either the 

1990 ACR Fibromyalgia criteria or the 2010 ACR fibromyalgia criteria. 

38. The Mayo Clinic team medical work up included a medical note with the 

Heading PHYSICAL EXAMINATION which states: 

Refer to HPI for mood assessment. 

Tender Points: 15/18 standard tender points are positive: right 

occiput, left occiput, right low cervical, left low cervical, right 

trapezius, left trapezius, right gluteal, left gluteal, right greater 

trochanter, left greater trochanter, right second rib, left second rib, 

right lateral epicondyle, left lateral epicondyle, right medial fat 

pad proximal to joint line of knee, dorsum on right forearm 

(control point), left thumb nail (control point). 

In addition, the patient is diffusely tender over most of the muscle 

groups and a number of joint regions. 

See note from Sanjeev Nanda MD dated 7/25/2016 for more 

details of examination. 

39. Following examinations and multiple visits the Mayo Clinic diagnoses 

were: #1 Fibromyalgia; #2 Chronic multifactorial fatigue; #3 Sleep Disorder; and #4 

Deconditioning. 

40. On September 6, 2016, and October 10, 2016, Wallace was examined by 

Dr. Christopher Marsh in Tucson, Arizona. Marsh’s examination found musculoskeletal 

abnormalities including tenderness and myalgias at multiple sites. His assessment 

included chronic fatigue and generalized myalgias in proximal muscle groups. Marsh 

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assessed myalgias at multiple sites, noting that the afflicted proximal muscle groups 

also showed elevated CPK. 

41. As of November 2016, Wallace was prescribed medications which 

cautioned against using heavy machinery of difficult driving. For instance warnings for 

the prescribed mediation taken by Wallace. Lyrica includes: 

17.5 Dizziness and Somnolence 

Counsel patients that LYRICA may cause dizziness, somnolence, 

blurred vision and other CNS signs and symptoms. Accordingly, 

advise patients not to drive, operate complex machinery, or engage 

in other hazardous activities until they have gained sufficient 

experience on LYRICA to gauge whether or not it affects their 

mental, visual, and/or motor performance adversely. (Italics added.) 

42. Other medications taken as prescribed by Wallace, including Deluxatene, 

also contain warnings that side effects could cause dizziness. 

43. Wallace’s medical ailments did not improve from disabling to nondisabling as of the time his benefits were terminated effective November 20, 2016. 

44. One or more of Wallace’s treating physicians have limited and/or 

restricted Wallace’s ability to return to work for all relevant times at issue since 

November 20, 2016. 

45. By a Work Status Report on a Freeport form, Dr. Tecaya restricted 

Wallace to work no more than 5 hours/day; 20 hours/week; and to do no overhead work, 

repetitive overhead work, climbing of ladders, use of power tools, operating heavy 

machinery or stair climbing. Wallace was also limited in his lifting and sitting abilities. 

46. Freeport terminated Wallace’s lengthy employment by certified letter of 

April 12, 2017, because the mining company was not able to accommodate the 

restrictions listed. 

. . . . 

. . . . 

. . . . 

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DEFENDANTS HAVE USED AN ARBITRARY AND INAPPROPRIATE 

STANDARD OF REVIEW IN TERMINATING WALLACE’S STD BENEFITS 

47. By letter dated May 22, 2017 Defendants denied the final appeal of 

Wallace to have his STD benefit reinstated. The reason given for the denial was: “The 

basis for the denial are the medical records (including the restrictions and limitations) 

do not support being unable to perform the essential duties of occupation beyond 

November 20. 2016. The BAC obtained an independent third party medical evaluation 

by MRI that determined there was no objective medical evidence.” 

48. The letter gave no weight to the findings of fibromyalgia diagnosed 

multiple times and places including at the Mayo Clinic in Rochester Minnesota in 

summer 2016. 

49. The diagnostic analysis concluding Wallace suffered from fibromyalgia 

included references to palpation and trigger points and tenderness on physical 

examination from physicians treating Wallace. 

50. Nowhere in the Policy definitions of the relevant Plan is there a 

requirement that the medical ailment causing disabling symptoms needs to have those 

symptoms, or the degree of those symptoms, measurable as if a laboratory numerical 

analysis or a radiology image finding were necessary. 

51. Fibromyalgia has been a long recognized physical medical ailment which 

is often accompanied with disabling features. E.g. Lang v. Long-Term Disability Plan 

of Sponsor Applied Remote Technology, Inc., 125 F.3d 794, 799 (9th Cir. 1997). 

52. The difficulty of measurement of diseases including fibromyalgia has 

been the subject of discussion by the United States Court of Appeals where the 

consensus is that it is not legitimate to require an unprovable quality of evidence to 

prove a disease such as fibromyalgia or the measurement of pain or discomfort from the 

disease. E.g., Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676-678 (9th

Cir. 2011). 

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53. Wallace has support for his claim from multiple treating physicians who 

had performed many diagnostic techniques including physical examination. Defendants 

had no medical doctor, or physician of any sort, who denied the existence of 

fibromyalgia in Wallace. 

54. The Defendants did not have Wallace personally examined in an 

Independent Medical Examination (IME) or even a Functional Capacity Examination 

(FCE) before terminating his benefits and denying his appeal. 

55. Defendants have improperly discredited the history of medical ailments 

described by Wallace in multiple medical histories and the opinions and medical 

examination assessment of Wallace’s treating physicians. 

COUNT 1 

DECLARATORY JUDGMENT 

56. Wallace incorporates all paragraphs above as if fully set forth herein. 

57. Defendant(s) have a financial conflict of interest which has influenced 

STD decision making adverse to the interests of fairness and of Wallace. 

58. Defendants have breached their fiduciary duties by not performing their 

duties solely in the interests of the participants and beneficiaries and for the exclusive 

purpose of providing benefits to participants and their beneficiaries as required by 

ERISA, 29 U.S.C. § 1104(A)(1). 

59. Defendants improperly terminated the Wallace claim for STD benefits. 

60. Wallace seeks a declaration by this Court that he is entitled to short term 

disability benefits, attorneys’ fees and costs, and all other relief including equitable 

relief for detriment caused Wallace by procedural irregularities of Defendants, 

particularly Hartford. Wallace asks for a Declaratory Order that: 

 1. Short Term Disability benefits should be paid for the entire 26 

week period of Wallace’s eligibility; 

 2. Wallace be able to submit his claim for Long Term Disability 

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(LTD) without punishment or negative assessments made against him of the termination 

of the STD claim; 

 3. Wallace be awarded pre-judgment interest as the Court deems just. 

RESPECTFULLY SUBMITTED this 16th day of January, 2018. 

WATERFALL, ECONOMIDIS, CALDWELL, 

HANSHAW & VILLAMANA, P.C. 

By /s/ Barry Kirschner 

Barry Kirschner 

Attorney for Plaintiff 

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