Former professor’s disability benefits lawsuit goes back to court

The case was originally dismissed more than a year ago.

A lawsuit against the UM System, filed by a former MU professor, is back in Boone County Circuit Court after three appellate judges from the Missouri Western District Court of Appeals in Kansas City disagreed with the original ruling.

Ken Whithaus filed the suit after he received a letter on Nov. 2, 2009, informing him he would no longer receive disability payments. Whithaus taught at MU until he left in 1999 with a heart condition. Whithaus claims his heart defibrillator has caused painful shocks that disrupt his sleep, stop him from driving regularly and prevent him from working.

Whithaus collected benefits from the end of 1999 until Nov. 2009. According to the benefits provider, Assurant Employee Benefits, Whithaus was no longer eligible to receive disability because a doctor had determined he was not prevented from working.

Along with the letter, Assurant attached the procedure for appealing the decision, which required that a written request for review be made to either the university or Assurant within 90 days. According to MU’s official long-term disability plan, "the claimant has 90 days from the date of notification of discontinuation to furnish proof of the claimant's continued Total Disability.”

Whithaus said he followed procedure, sending his doctor's proof and requesting a review of the decision by letter on Nov. 23, 2009. Assurant wrote back on Jan. 29, 2010, denying his review request and instructing him to write the university within 90 days using the same appeal procedure.

Requesting this second letter is where “(the university) made their mistake,” Whithaus' lawyer Paul Graham said. He said he believes it was unfair for MU to make him write the same letter twice.

Then on July 7, 2010, Graham wrote Assurant again requesting another review of their doctor's decision to repeal his benefits. The university denied this request for review because the 90-day period had expired.

After this Whithaus filed the lawsuit against the UM System, petitioning them to reinstate his benefit plan. After argument, Circuit Judge Kevin Crane sided with UM System general councel Kelly S. Mescher and dismissed the case for lack of subject matter jurisdiction. In his verdict, he claimed that Whithaus had not gone through all appeal levels at the university level before filing suit, so he did not have jurisdiction over the case.

Assurant also claims that Whithaus is not fully disabled because he allegedly manages a farm, according to court records. Whithaus and Graham challenged this claim in their letter and argued he was not qualified to manage a farm under terms laid out in his benefits plan.

Graham declined to comment on the farming claim in an interview. The UM System does not comment on pending litigation.

Graham and his client then took the case to the Missouri Western District Court of Appeals in Kansas City. The three judges who heard the case, Thomas Newton, Cynthia Martin and Gary Witt, disagreed with Crane's ruling. They questioned the wording of the disability plan and noted the appeal procedure at the university level was not defined in it.

The judges also contented Whithaus went through all appeals at the university level and shouldn't have had to request review twice. Consequently they ruled Crane did have jurisdiction.

The case now goes back to Judge Crane's courtroom in Boone County Circuit Court.

Under MU's long-term disability plan, Whithaus received $998 a month in benefits. He is asking the court to reinstate his plan and pay the monthly payments he hasn't been receiving since Nov. 2009.

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