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United States Court of Appeals,
Fifth Circuit.
No. 911368.
Murphy R. GODWIN, PlaintiffAppellant,
v.
SUN LIFE ASSURANCE COMPANY OF CANADA, DefendantAppellee.
Dec. 31, 1992.
Appeal from the United States District Court for the Southern
District of Mississippi.
Before JOLLY and EMILIO M. GARZA, Circuit Judges, and SHAW,
District Judge.**
EMILIO M. GARZA, Circuit Judge:
Murphy R. Godwin alleges that Sun Life Assurance Company of
Canada ("Sun Life") violated the Employee Retirement Income
Security Act of 1974 ("ERISA")1 by (a) failing to provide plan
information that Godwin had requested; (b) illegally offsetting
his award under the plan with Social Security old age benefits;
and (c) erroneously calculating an offset for workers' compensation
benefits. The district court granted Sun Life's motion for summary
judgment. Godwin appeals, and, finding no error, we affirm.
I
Godwin began work for School Pictures, Inc., in 1966. In the
mid1970s, Godwin became a participant in a group long-term
disability plan issued to School Pictures by Sun Life. Subsequent
to his participation, the plan was amended five times, the last
amendment taking effect in December 1983. On December 19, 1984,
Godwin sustained an injury in the course of his employment. He
continued to work, however, until November 4, 1986, when a second
employment-related injury left him disabled. On November 18, 1986,
School Pictures terminated Godwin--then sixty-seven years old--for
*Chief Judge of the Western District of Louisiana, sitting
by designation.
129 U.S.C. § 1001 et seq. (1988).

health reasons. After he was terminated, Godwin applied to Sun
Life for benefits under the plan.
Sun Life determined that Godwin was entitled to fifteen months
of benefits (eighteen months less a three-month waiting period),
and it issued Godwin two checks for a total of $1,773.11. Those
checks represented three months of benefits at $591.04 a month.2
2With respect to Godwin's application for benefits, Sun Life
issued one check for $1,182.07, representing pay period 1 March
87 to 30 April 87 and a second check for $591.04. The amounts of
these checks were calculated as follows:
1st check
March 1987
Gross Monthly Benefit
$1,188.95
Less Workers Comp. Offset
--estimated
576.00
612.95

April 1987
Gross Monthly Benefit
$1,188.95
Less Workers Comp. Offset
--estimated
576.00
612.95

Less FICA Tax
43.83
$1,182.07

2nd Check
May 1987
Gross Monthly Benefit
$1,188.95
Less Workers Comp. Offset
--estimated
576.00

However, Sun Life later recalculated the benefits to which Godwin
was entitled, included an offset of $725 a month for social
security benefits, and determined that the offsets exceeded
benefits.3 Subsequently, the Mississippi Workers' Compensation
Commission approved Godwin's workers' compensation claims with
regard to his two on-the-job injuries. After deducting attorneys
fees and expenses, Godwin received $9,941.62.4
In July 1989, Godwin brought suit in district court against
Sun Life, claiming that Sun Life's actions violated ERISA. The
parties filed cross-motions for summary judgment, and the district
court granted Sun Life's motion. Godwin appeals.
II
Godwin contends (a) that he is entitled to statutory penalties
under ERISA because Sun Life failed to provide plan information
that Godwin requested; (b) that Sun Life's offset of social
security old age benefits was illegal because the offset was not
Less FICA tax
21.91
$591.04
3Sun Life arrived at the new figures under a 1981 amendment
to the plan that offset "any amount of Old Age Income provided to
the employee under the Social Security Act." Sun Life determined
that, pursuant to the policy (as amended), Godwin was entitled to
receive, during his fifteen-month period, $1188.95 monthly, less
a $576 monthly workers' compensation offset and a $725 offset
representing Godwin's monthly payment from the Social Security
Administration. These calculations result in a negative $112.05;
however, the plan provides for a minimum monthly benefit of $50.
4The gross amount for both claims was $15,000. The
settlement of Godwin's claims were general in nature, citing,
among other things, payment for disability, loss of wage-earning
capacity, penalties, interest, and all medical expenses which
Godwin might incur in the future or which may have been incurred
in the past.

set forth in the original policy and Godwin never received notice
that the plan was amended to include the offset; and (c) that Sun
Life erroneously calculated an offset for workers' compensation
benefits.
A
Godwin contends that he is entitled to penalties due to Sun
Life's failure to supply certain requested information. Godwin
alleges that, in July 1985--prior to his application for disability
benefits--he requested from Sun Life information relating to the
benefit plan and that, over the course of the next four years, Sun
Life and School Pictures refused his requests. Godwin argues that
Sun Life's failure to provide the information violates ERISA.
Section 502(c)(1) of ERISA provides, in relevant part, that:
Any administrator who ... fails or refuses to comply with a
request for any information which such administrator is
required by this subchapter to furnish to a participant or
beneficiary (unless such failure or refusal results from
matters reasonably beyond the control of the administrator) by
mailing the material requested to the last known address of
the requesting participant or beneficiary within 30 days after
such request may in the court's discretion be personally
liable to such participant or beneficiary in the amount of up
to $100 a day from the date of such failure or refusal and the
court may in its discretion order such relief as it deems
proper.
29 U.S.C. § 1132(c). The term administrator is defined as:
(i) the person specifically so designated by the terms of the
instrument under which the plan is operated;
(ii) if an administrator is not so designated, the plan
sponsor....
29 U.S.C. § 1002(16)(A).
The district court's summary judgment against Godwin was
based, in part, on its conclusion that, because no administrator
was named in the policy, School Pictures was the sponsor and,

therefore, the administrator, pursuant to 29 U.S.C. § 1002(16)(A).
The district court thus found that an action under 29 U.S.C. § 1132
did not exist against Sun Life. See Record on Appeal, vol. 2, at
44445. The district court also discounted Godwin's argument that
Sun Life was a de facto administrator of the plan. The district
court concluded that Godwin was not prejudiced by the alleged
failure to disclose information, and that the question whether Sun
Life was a de facto administrator thus was irrelevant.5
Godwin asks us to recognize Sun Life as a de facto
administrator and argues that ERISA does not require a claimant to
show prejudice in order to be entitled to penalties.6 In support
5Record on Appeal, vol. 2, at 446:
[E]ven if Sun life is a plan fiduciary and had a duty
to provide Godwin the information he requested, Godwin
has not demonstrated that any prejudice to his right to
benefits resulted from a failure by Sun Life to provide
the requested information.
6Godwin cites Curry v. Contract Fabricators Inc. Profit
Sharing Plan, 891 F.2d 842 (11th Cir.1990), in support of this
argument. In Curry, the defendant argued that the plaintiff
should not recover under section 1132 because he suffered no
prejudice due to the defendant's denial of benefits. The court
found that the district court's decision whether to impose
penalties under this section rested within its discretion. The
court stated:
In exercising its discretion, therefore, the trial
court may undoubtedly consider whether a denial of
information prejudiced a plaintiff, but prejudice is
not a prerequisite to an award of civil penalties.
Curry, 891 F.2d at 847 (citations omitted) (discussing Paris
v. Profit Sharing Plan For Employees of Howard B. Wolf,
Inc., 637 F.2d 357 (5th Cir.), cert. denied, 454 U.S. 836,
102 S.Ct. 140, 70 L.Ed.2d 117 (1981)); see also id. at 848
("A careful reading of Paris, therefore, suggests that
prejudice was merely one factor (although an important one)
that the trial court considered in exercising its discretion
whether to award a civil penalty under section
1132(c)....").

of this argument, Godwin reminds us of our decision in Fisher v.
Metropolitan Life Ins. Co., 895 F.2d 1073, 1077 (5th Cir.1990).
In Fisher, the plaintiff suggested that the plan insurer,
Metropolitan, should be regarded as a de facto plan administrator
because Metropolitan had been delegated responsibility for
evaluating and administering claims. Noting that "Fisher's
argument that Metropolitan should be regarded as a de facto
administrator has intuitive appeal[,]"7 we nevertheless declined to
recognize Metropolitan as the de facto administrator because, in
any event, we found no abuse of discretion on the part of the
district court in refusing to award the plaintiff penalties under
section 1132(c).
As in Fisher, we need not here resolve the question whether
Sun Life should be regarded as a de facto administrator, thus
entitling Godwin to penalties under 29 U.S.C. § 1132. See Paris v.
Profit Sharing Plan For Employees of Howard B. Wolf, Inc., 637 F.2d
357, 362 (5th Cir.), cert. denied, 454 U.S. 836, 102 S.Ct. 140, 70
L.Ed.2d 117 (1981) ("The decision to grant relief under 29 U.S.C.
§ 1132(c) is committed to the discretion of the trial judge.").
Although section 1132 does not require the claimant to show he was
prejudiced to be entitled to penalties,8 we suggested in Paris that
prejudice is one factor a district court may consider in exercising
its discretion. See Paris, 637 F.2d at 362 ("The plaintiffs have
not attempted to demonstrate that they were prejudiced by the
7Fisher, 895 F.2d at 1077.
8The express statutory language does not require a
demonstration of prejudice. See 29 U.S.C. § 1132(c).

alleged failure to respond, and we cannot say the district court
abused its discretion."); accord Curry v. Contract Fabricators
Inc. Profit Sharing Plan, 891 F.2d 842, 847 (11th Cir.1990)
(citations omitted). The district court's consideration of a lack
of prejudice in denying an award of penalties was, therefore, not
an abuse of discretion.
B
Godwin next contends that the 1981 amendment to the Sun Life
plan which mandates an offset for "any amount of Old Age Income
provided to the employee under the Social Security Act"9 does not
apply to him because he had no notice of the amendment when he
applied for benefits.
We begin with the premise that, as a general rule, Social
Security old age income may be offset against monthly disability
payments. See Alessi v. RaybestosManhattan, Inc., 451 U.S. 504,
51415, 101 S.Ct. 1895, 190102, 68 L.Ed.2d 402 (1981) (integration
of employee benefits with other sources of income available to
employees is permissible); see also Fisher, 895 F.2d at 1076 n. 1
(noting that the Supreme Court has upheld the validity of
integration provisions, which Congress had specifically approved in
enacting ERISA). We then determine whether the 1981 amendment to
the Sun Life plan is valid and applicable to Godwin. That is, did
Sun Life comply with the ERISA requisites for plan modifications
with respect to Godwin?10
9See supra note 3.
10The amendment procedure, in general, was proper. Written
amendments were authorized under the plan if agreed to by a
representative of the company. See Record on Appeal, vol. 2, at

ERISA requires that participants and beneficiaries be
furnished with a summary plan description. See 29 U.S.C. § 1022.
This summary plan description must contain certain information,
including "circumstances which may result in disqualification,
ineligibility, or denial or loss of benefits ..." 29 U.S.C. §
1022(b). Sections 102(a)(1) and 104(b)(1) of ERISA require that a
copy of the summary plan description and all modifications and
changes be furnished to participants and beneficiaries not later
than 210 days after the plan year in which the change is adopted.
See 29 U.S.C. §§ 1022(a)(1) and 1024(b)(1), amendment noted in 29
U.S.C.A. § 1024(b)(1) (Supp.1991).
In support of its assertion that Sun Life gave proper notice
of the amendment, Sun Life presented to the district court the
affidavit of its Director of Group Services and Administration--Dale
L. Kurtz.11 In his affidavit, Kurtz testified that Sun Life
prepared and sent to School Pictures for distribution updated
summary plan description booklets following each amendment to the
School Pictures plan.12 Godwin, however, maintains that he never
249. Sun Life presented to the district court the affidavit of
its Senior Claims Officer--J. Neville Meehan--who testified that
the 1981 amendment was approved in writing by A. Don Goss--Vice
President of Finance for School Pictures. See Record on Appeal,
vol. 2, at 235.
11Record on Appeal, vol. 2, at 283286.
12Record on Appeal, vol. 2, at 285:
Employees of School Pictures, Inc. were notified of the
terms and conditions of the School Pictures LTD plan by
means of summary plan description booklets ("SPD's")
which were composed by Sun Life according to
instructions received from School Pictures, Inc.
regarding desired changes in coverage. The SPD's were
printed in Massachusetts and then forwarded to School

received notice of the amendment, and he argues that such personal
notice was required under ERISA.
The district court, in rejecting Godwin's argument that the
1981 amendment was invalid as to him for lack of notice, relied
principally on two cases interpreting the ERISA notification
provisions: Moore v. Metropolitan Life Ins. Co., 856 F.2d 488 (2d
Cir.1988) and Henne Corp. v. AllisChalmers Corp., 660 F.Supp. 1464
(E.D.Wis.1987). The district court found:
Wherever fault might lie for the alleged nonreceipt by Godwin
of notice of the [1981] amendment, the amendment to the
employee welfare benefit plan at issue is valid even in the
absence of his knowledge of its existence. Henne [ ], 660
F.Supp at 147475 (amendment valid though its adoption was
never noticed by employer); see also Moore, 856 F.2d at
49192 (employer could alter benefit plan where summary plan
descriptions unambiguously reserved the right to change or
discontinue welfare benefit plan). That is because when
benefit plans may by their terms be modified at any time and
[when] an employer makes no attempt to conceal amendments, an
employee cannot seek to avoid application of a valid amendment
by claiming he never received notice of its adoption. Henne,
660 F.Supp. at 1475.
Record on Appeal, vol. 2, at 44950. The district court found, in
the alternative, that Godwin was not prejudiced by his lack of
knowledge of the amendment. Id.
We agree with the district court that an amendment to a
welfare benefit plan is valid despite a beneficiary's lack of
personal notice, unless the beneficiary can show active concealment
of the amendment, Blau v. Del Monte Corp., 748 F.2d 1348, 1352 (9th
Cir.), cert. denied, 474 U.S. 865, 106 S.Ct. 183, 88 L.Ed.2d 152
Pictures' home office in Jackson, Mississippi, for
distribution to covered employees. This same procedure
was followed on each occasion when the School Pictures
LTD plan was amended.

(1985),13 or "some significant reliance upon, or possible prejudice
flowing from" the lack of notice. Govoni v. Bricklayers, Masons
and Plasterers Int'l Local No. 5 Pension Fund, 732 F.2d 250, 252
(1st Cir.1984). Here, there is no evidence of active concealment,
and Godwin can show neither significant reliance nor prejudice from
his alleged lack of notice.14 The 1981 amendment allowing an offset
for old age Social Security benefits is thus valid and applicable
to Godwin.15
C
Godwin's final argument is that the offset for workers'
compensation benefits was incorrectly calculated. The exclusion
clause in question provides, in relevant part:
The Monthly Indemnity of an employee at any date will be the
13But see Hozier v. Midwest Fasteners, Inc. 908 F.2d 1155,
116669 (3d Cir.1990) (analyzing and disagreeing with Blau ).
The Third Circuit in Hozier held that procedural reporting
violations are irrelevant to an appellate court's construction of
the terms of a welfare benefit plan. Id. at 1168. The Third
Circuit, however "d[id] not decide the different question whether
reporting and disclosure violations are relevant or dispositive
in determining the validity of plan amendments." Id. at 116869
n. 15.
14Indeed, not only was Godwin not prejudiced by the 1981
amendment, he benefitted from it. Under the unamended plan,
Godwin would not have been eligible for any benefits when he
became disabled at sixty-seven because benefits were terminated
at age sixty-five. Thus the amendment that Godwin complains of
was the same amendment which made him eligible for any benefits
at all.
15As the Third Circuit noted in Hozier v. Midwest Fasteners,
Inc., 908 F.2d 1155 (3d Cir.1990), invalidating a plan amendment
for disclosure violations is problematic even in cases involving
active concealment or prejudice. See id. at 116869 n. 15 ("One
difficulty with striking down a plan amendment on the basis of
reporting and disclosure violations ... is that the failure to
report and disclose a proposed amendment does not ripen into a
violation until 210 days after the end of the plan year in which
the change is adopted." (citation and quotation omitted)).

amount of the employee's insurance at such date, less the sum
of the following amounts:
* * * * * *
(5) any indemnity provided for the employee under any
Workmen's Compensation law or similar legislation.
Record on Appeal, vol. 2, at 264. At the time Godwin's disability
payments became payable under the policy, Godwin's workers'
compensation claim was controverted. Because Godwin was not then
receiving workers' compensation benefits, Sun Life relied upon
reference manuals setting forth the maximum weekly amount of
workers' compensation available in Mississippi and determined that
$576 should be offset monthly.16
Godwin does not dispute Sun Life's authority to offset
benefits with workers' compensation payments. But he does
challenge Sun Life's calculation of the workers' compensation
offset, reasoning that the payment for the worker's compensation
settlements occurred after Godwin's benefit period and that his
lump sum workers' compensation settlements also included payment
for items that had nothing to do with his disability.17 Godwin
suggests that the settlement payments should have been prorated
over 450 weeks. Sun Life, on the other hand, contends that
Godwin's entire settlement award should be applied as an offset.
The validity of workers' compensation offsets is
well-established. Alessi v. RaybestosManhattan, Inc., 451 U.S.
16This amount was the maximum monthly benefit allowed by
state law for the injury of December 19, 1984. The total
disability payment was $126 per week, for 450 weeks, or $56,700
in total. See Miss.Code Ann. § 71317 (1972).
17For example--penalties, interest, and medical benefits.

504, 51415 & 526, 101 S.Ct. 1895, 190102 & 1908, 68 L.Ed.2d 402
(1981). Our inquiry is limited to the district court's conclusion
that Sun Life did not erroneously calculate the amount of the
workers' compensation offset. Because this is an action brought
under 29 U.S.C. § 1132(a)(1)(B), we review de novo the district
court's decision. Firestone Tire and Rubber Co. v. Bruch, 489 U.S.
101, 115, 109 S.Ct. 948, 956, 103 L.Ed.2d 80 (1989).
The district court, in allowing an offset for the entire
amount of the workers' compensation award rather than a prorated
amount, noted that the Sun Life plan mandated an offset for "any"
workers' compensation award. Record on Appeal, vol. 2, at 453. As
noted supra, the precise words of the exclusion clause provide that
"any indemnity provided for the employee under any Workmen's
Compensation law or similar legislation" may be offset. We find
these words to be clear and unambiguous: "any indemnity" means
"any indemnity".
Godwin cites two cases as supporting the proposition that only
a prorated portion of the workers' compensation should have been
offset--Martin v. McCarthy, 520 F.Supp. 783 (D.C.Mass.1981) and
Sciarotta v. Bowen, 837 F.2d 135 (3d Cir.1988). As Sun Life points
out, however, Sciarotta addresses an extremely narrow issue--the
Social Security Administration's interpretation of the Social
Security Act--which is not applicable to ERISA.
Martin likewise is inapplicable to the case sub judice. In
Martin, a district court found 1) that the trustees of an
ERISA-regulated pension plan properly withheld pension benefits
pending the settlement of a workers' compensation claim; and 2)

that the trustees of the plan properly refused to pay pension
benefits once the workers' compensation claim was settled and the
amount of the workers' compensation benefits exceeded the amount of
the pension benefits. Martin, 520 F.Supp. at 78486. Godwin is
correct when he states that the district court in Martin prorated
the workers' compensation benefits over the concurrent disability
period. However, the district court, in doing so, relied upon the
express language of the plan in question, which provided that
"[a]ny pension benefits payable for any month for which the
Pensioner or Participant received worker's compensation benefits
shall be offset by the amount of such worker's compensation
benefits." Id. at 784 n. *. The language of the Martin plan
arguably mandated a monthly offset of the prorated workers'
compensation benefit. There is no such language in Godwin's Sun
Life plan.
We conclude, therefore, that Sun Life was entitled to reduce
Godwin's disability benefits by the entire amount he received due
to workers' compensation. See Barklage v. Metropolitan Life Ins.
Co., 614 F.Supp. 51, 59 (W.D.Mo.1985) (receipt of lump sum rather
than monthly award of workers' compensation does not bar an
offset).
III
For the foregoing reasons, we AFFIRM.
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