application for payment of disability benefits in Eastern.
3. Prior to May 31, 1962, Eastern had a policy of consenting to Early Retirement at age 55 under its Retirement Plan and of adding to the retirement benefit provided by the Plan a supplemental benefit whenever an employee's job was eliminated by internal reorganization.
4. There was no plan or practice in Eastern of eliminating a job position when the incumbent became disabled so that he could qualify for early retirement.
5. On June 1, 1962, Mr. Stewart's job position was eliminated by internal reorganization.
6. As of May 31, 1962, Mr. Stewart had been a salaried executive of Eastern with a continuous employment record of 32 years.
7. Sometime in 1961, Mr. Stewart had suffered a severe paralysis which required hospitalization and subsequent therapy.
8. On April 25, 1962, the general manager of Eastern announced that Mr. Stewart is being given a leave of absence for reasons of health.
9. On May 22, 1962, by an inter-office memo to Mr. Stewart, entitled "Early Retirement -- May 1, 1963; Leave of Absence June 1, 1962 to April 30, 1963" notified Mr. Stewart that he was granted a leave of absence from June 1, 1962 to April 30, 1963 and would be placed on retirement beginning May 1, 1963. This notice did not specify the subsection of Sec. V, Early Retirement, under which the benefits would be paid but merely stated that "Your retirement benefits are covered by Eastern's Retirement Plan for Salaried Employees, a copy of which has been furnished to you * * *".
10. The Notice of May 22, 1962, instructed Mr. Stewart that he would be supplied retirement forms to be filled out and returned after the first of the year.
11. The notice of May 22, 1962, stated that during his leave of absence beginning June 1, 1962, Mr. Stewart would be paid 40% of his present salary, or $710.67 per month.
12. The notice of May 22, 1962, stated that beginning May 1, 1963, Mr. Stewart's retirement benefit is estimated to be $197.05 monthly, and that in addition the Board of Trustees will be asked to approve a supplementary allowance of $513.62 per month effective May 1, 1963, subject to approval of the Trustees each year and to be reduced at the time he was eligible for Social Security.
13. The total of the $710.67 in payments as specified in par. 10 above were paid monthly to Mr. Stewart in his lifetime, although somewhat differently appointed between the two sources.
14. On December 28, 1962, Mr. Stewart filled out a form "Application for Retirement" which contained four spaces for the basis of payment; i. e.; (a) Normal Retirement (b) Early Retirement -- Disability (c) Early Retirement -- Other, and (d) Optional Retirement. He marked XXX in the space following (c) Early Retirement -- Other.
It is the payments received in 1963, 1964 and 1965 from the aforesaid sources to the limit of $100 per week which the plaintiff argues should be excluded. To rebut the government's contention that such payments were not made under an "accident or health plan" for employees, plaintiff contends that the "plan" was that contained in the notice of May 22, 1962 for Mr. Stewart. Plaintiff claims that this is a "plan" for disability benefits because it recognized that Mr. Stewart would no longer be able to work because of illness. A valid "plan" under Sec. 105 may cover a single employee. Kuhn v. United States, 258 F.2d 840 [3d Cir., 1958].
Plaintiff further argues that this is a "plan" because it follows the same company policy as was established for salaried employees no longer able to work because of job elimination through internal reorganization.
The most convincing of plaintiff's arguments is that Eastern did have a "plan" for sickness or disability under Sec. V(2) of its Retirement Plan. The requirements of V(2) were that:
(1) The employee have reached his 55th birthday;
(2) The employee have completed 20 years of service;