UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HOWARD VERNATTER,

Plaintiff-Appellee,

v.

MICHAEL H. HOLLAND, Trustee;

DONALD PIERCE, JR., Trustee;

No. 97-2647

ELLIOT A. SEGAL, Trustee; JOSEPH J.

STAHL, II, Trustee; UNITED MINE

WORKERS OF AMERICA HEALTH AND

RETIREMENT FUNDS,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of West Virginia, at Beckley.

Elizabeth V. Hallanan, Senior District Judge.

(CA-96-1824-5)

Argued: December 3, 1998

Decided: March 12, 1999

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge,

and WILLIAMS, United States District Judge for the

District of Maryland, sitting by designation.

_________________________________________________________________

Reversed and remanded with instructions by unpublished per curiam

opinion.

_________________________________________________________________

COUNSEL

ARGUED: Matilda Ann Brodnax, Assistant General Counsel, Office

of the General Counsel, UMWA HEALTH AND RETIREMENT
FUNDS, Washington, D.C., for Appellants. S.F. Raymond Smith,

RUNDLE & RUNDLE, L.C., Pineville, West Virginia, for Appellee.

ON BRIEF: Glenda S. Finch, Deputy General Counsel, Carolyn J.

O'Meara, Senior Associate Counsel, UMWA HEALTH AND

RETIREMENT FUNDS, Washington, D.C., for Appellants.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This case is an appeal from an October 22, 1997 decision by the

Honorable Elizabeth Hallanan, United States District Court for the

Southern District of West Virginia. The case arises under Title I of

the Employee Retirement Income Security Act of 1974 ("ERISA"),

29 U.S.C. §§ 1001-1168. Appellants are the Trustees ("Trustees") of

the United Mine Workers of America ("UMWA") 1974 Pension Trust

("1974 Pension Trust" or "1974 Pension Plan"). Appellee, Howard

Vernatter brought his action against the Trustees to recover benefits

allegedly due to him pursuant to 29 U.S.C. §§ 1132(a)(1)(B),

1132(e)(1) and 1132(f). The district court granted summary judgment

in favor of Vernatter, finding that the Trustees had abused their discretion in determining that Vernatter had not established his eligibility

for the pension benefits. For the reasons set forth below, we reverse.

I

Before discussing the facts specific to this appeal, a brief discussion of the eligibility requirements of the 1974 Pension Trust might

be helpful. The 1974 Pension Trust is one of many employee benefits

trusts, collectively called the United Mine Workers of America Health

and Retirement Funds. The eligibility requirements for disability benefits under this Trust are found in Article II. C. of the 1974 Pension

Plan, which provides:

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A participant who (a) has at least 10 years of signatory service prior to retirement, and (b) becomes totally disabled as

a result of a mine accident . . . shall, upon retirement (hereinafter "Disability Retirement"), be eligible for a pension

while so disabled. A Participant shall be considered to be

totally disabled only if by reason of such accident such Participant is subsequently determined to be eligible for Social

Security Disability Insurance Benefits under Title II of the

Social Security Act or its successor.

JA at 355. Therefore, in order to be eligible for the benefits a claimant

must establish: (1) that he has sustained injuries from a mine accident;

(2) that he is totally disabled, which is a determination made by the

Social Security Administration ("SSA"); and (3) that the mine accident is substantially responsible for his total disability. See Boyd v.

Trustees of the United Mine Workers of America Health and Retirement Funds, 873 F.2d 57, 59 (4th Cir. 1989).

There is not one established definition of what constitutes a mine

accident. Instead, the Trustees apply the Plan's rules and regulations,

which are presented in a question and answer format ("Q & A"), to

make that determination. Q & A 252 provides the three characteristics

that must be present for the Trustees to find that a miner has been

"disabled as the result of a mine accident." JA at 394. It states that:

The following three characteristics must be present: (1)

Unexpectedness: The disability must have been unlooked

for and unforeseen; (2) Definiteness: The disability must be

traceable to a definite time, place, and occasion which

occurred within the course of the mine worker's employment. A progressive disease does not meet this test and

therefore cannot be a disability that resulted from a mine

accident; (3) Force and impact: The disability must have

been caused by the exertion or impact of some external

physical force or object against the body or by the exertion

or impact of the body against some external physical object;

i.e., not simply as a result of the mine worker's own physical condition.

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Id. Q & A 252 also provides a list of examples of mine accidents. It

is important for the purposes of this appeal to note that rock falls are

not specifically enumerated as mine accidents.

II

Howard Vernatter, is a member of the United Mine Workers of

America. Vernatter is also a participant in the 1974 Pension Plan.

Vernatter has claimed that he is entitled to disability benefits because

he is totality disabled. Initially, Vernatter claimed that his disability

stemmed from back and shoulder injuries sustained in two accidents

that occurred in 1980, while he was performing classified work for a

signatory employer. Later, Vernatter claimed that his disability, which

is mostly psychological in nature, stemmed from a facial injury that

he received in a rock fall in June of 1984.

Vernatter was determined to be totally disabled by Administrative

Law Judge ("ALJ") Virginia Mae Brown, of the SSA, in February of

1986. Judge Brown made reference to the alleged mine accident in

1984. She noted that "[d]uring an evaluation conducted [in September

1984] by D. Soulis, a psychiatrist . . ., the claimant said he had been

extremely anxious since being covered up by a rock slide the previous

June." JA at 181. Although Judge Brown found that Vernatter's back

and shoulder injuries were not debilitating, she found that he was suffering from "severe post-traumatic stress disorder, anxiety, and

depression, the forgoing greatly compromising his ability to function." JA at 182-83.1 She stated that the

anxiety and post traumatic stress related difficulties in connection with a June 1984 cave in in which [Vernatter] was

nearly buried alive have greatly impaired his ability to

acceptably interact with co-workers, supervisors, the public,

or deal with even minimal stress encountered in a variety of

routine, unskilled, entry level occupations.

_________________________________________________________________

1 Vernatter received Social Security disability benefits based on his

psychological problems as well as his chronic obstructive pulmonary disease and arthritis in his lower back. See JA at 19.

 4
JA at 181.

In January 1988, Vernatter sought disability benefits based on the

1980 accidents. In June of 1989, the Trustees determined that Vernatter was not totally disabled as a result of these accidents. The Trustees

acknowledged that Vernatter suffered from medical and psychological problems, but found that these ailments were not the result of a

mine accident.

Afterward, Vernatter provided the Trustees with additional medical

records, and witness statements about the June 1984 incident. This

information included medical records from several doctors, see JA at

22-25, 31-36, 152-53, 240-43, and 244-45, and corroborating statements from three co-workers who claimed to have witnessed the accident. See JA at 52-54. Vernatter had not filed a claim for West

Virginia Workers' Compensation benefits. Nor did he submit any

contemporaneous medical reports to establish that the injury occurred.

Vernatter maintained that he did not file an accident report because

his employer had informed him that there were not any forms available at the time of the incident. See JA at 51, 59. The Trustees reconsidered Vernatter's application, but determined that there was not

enough evidence to show that his disability was caused by a mine

accident as defined by Q & A 252.

Vernatter filed suit against the Trustees, claiming that they had

wrongfully denied his application for disability pension benefits based

on the 1984 incident, not the 1980 accidents. On August 6, 1996, the

Honorable David Faber, United States District Court of West Virginia, remanded the case to the Trustees so that they could review

new evidence produced by Vernatter. This evidence included an

audiogram which indicated that Vernatter had normal hearing, JA at

23, progress notes, dated April 25, 1995, which indicated that Vernatter had an obstruction in his nose, JA at 24, and a February 7, 1986

evaluation, which referenced a nasal obstruction. JA at 25. The Trustees, by a letter dated September 23, 1996, stated that they had

reviewed this evidence but found that it failed to establish that

Vernatter's disability was the result of a mining accident. The letter

stated that "[n]one of this information relates to injury received in a

mining accident, and none relates to the impairments determined to

be disabling by the Administrative Law Judge." JA at 19.

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Thereafter, Vernatter again filed suit. After the parties filed cross

motions for summary judgment, the district court granted Vernatter's

motion, specifically finding that Richards v. United Mine Workers of

America, et al., 895 F.2d 133 (4th Cir. 1990), which also dealt with

the 1974 Pension Plan, was controlling. In that case, this Court held

that findings of the SSA "[are] entitled to great weight." Id. at 138.

As Judge Brown had referenced the 1984 accident in making her disability decision, the district court concluded that the ALJ had found

that this accident was the cause of the disability. The district court

stated that a "careful review of the ALJ's decision reveals that the

ALJ accepted as fact the occurrence of Plaintiff's alleged mining accident of June 1984. Further, the ALJ held that it was the June 1984

mining accident which, to the near exclusion of all other factors,

brought about Plaintiff's permanent disability. . . ." JA at 412. Moreover, the district court stated:

The ALJ's determination is conclusive evidence of disability for purposes of the pension plan. Boyd v. Trustees of the

UMWA Health & Retirement Funds, 873 F.2d [57], 59 [(4th

Cir. 1989)]. . . . It seems only rational to maintain that, if the

ALJ's determinations as to disability are conclusive, then

the reasons relied on for the finding of disability should be

treated as conclusive as well. . . . Therein is the significance

for the weight given by the Fourth Circuit to the ALJ's

determination of disability onset.

JA at 404.

The district court found that the Trustees had abused their discretion by relying "solely upon the fact that there was neither an accident

report nor any contemporaneous medical records detailing the alleged

mining accident." JA at 414. The court stated that under Richards

"such deficiencies do not automatically trump all other evidence and

effectively terminate the requisite inquiry." Id. The district court

found that the Trustees' "decision further failed to examine any of the

evidence supporting the existence and disabling nature of the alleged

mining accident of June 1984, or offer any evidence which Defen-

 6
dants may have relied upon to refute the same." JA at 413. The district court, therefore, granted summary judgment in favor of Vernatter.2

III

The Trustees argue that the district court erred by granting summary judgment in favor of Vernatter, thus reversing the Trustees'

decision to deny Vernatter's application for disability benefits. They

maintain that they had substantial evidence to support their determination that no accident had occurred in June 1984, and therefore did

not abuse their discretion by denying the application. We agree.3

_________________________________________________________________

2 The parties subsequently requested an order remanding the case so

that the Trustees could address the issue of causation. The district court

found that such an action would be contrary to her reasoning in its October 22, 1997 opinion. The court stated that:

The Court finds the determination suggested by the"Modified

Order" to be illogical. If it is to be accepted that the alleged

mining-accident actually occurred, and let it be remembered that

a denial of the mining-accident's occurrence was the cornerstone

of Defendant's argument, the Court does not see how it can turn

its back on the ALJ's finding of causation. As the ALJ found

Plaintiff disabled for psychological reasons alone, and pointed to

the disputed mining-accident as the major cause of Plaintiff's

psychological problems, the Court finds it virtually impossible,

if the fact of the mining-accident is to be accepted, to legitimately determine that the issue of causation remains in doubt.

JA at 408. Therefore, on April 28, 1998, The district court issued a Modified Memorandum Opinion and Order, which reiterated its original findings.

3 The Trustees also argue that even if the district court did not err in

finding that there was an accident, the district court should have

remanded the case back to them so that they could determine whether

there was a causal link between the accident and Vernatter's current disability. They argue that under the terms of the Plan, this determination

is within their purview, and thus the district court erred by holding that

they were bound to follow the findings of Judge Brown in terms of causation. Because we find that the Trustee's decision to deny pension benefits was supported by substantial evidence, we do not need to address this

argument.

 7
We review the district court's grant of summary judgment under

the de novo standard. Brogan v. Holland et al. , 105 F.3d 158, 161

(4th Cir. 1997). Under ERISA, if the pension plan gives the trustees

of the plan discretionary powers to determine eligibility, a reviewing

court must examine the trustees' decision concerning eligibility under

the abuse of discretion standard. Firestone Tire and Rubber Co. v.

Bruch, 489 U.S. 101, 111 (1989). This Court has previously held that

the 1974 Pension Plan affords its Trustees the discretion to determine

eligibility. See Boyd, 873 F.2d at 59; Lockhart v. United Mine Workers of America 1974 Pension Trust, 5 F.3d 74 (4th Cir. 1993). Therefore, the abuse of discretion standard will apply in this case.

In Richards, this Court held that the abuse of discretion standard

was synonymous with the arbitrary and capricious standard once used

by this Court. See Richards, 895 F.2d at 135. Under this standard of

review, the Trustees' decisions "will not be disturbed if they are reasonable." Bernstein v. CapitalCare, Inc., 70 F.3d 783, 787 (4th Cir.

1995). Further, the Trustee's decision will not be disturbed if it "is the

result of a deliberate, principled reasoning process and if it is supported by substantial evidence." Id. at 788 (internal quotations omitted). Moreover, if the record includes conflicting credible evidence,

the Court "cannot substitute [its] judgment for that of the [Trustees].

[The court's] review is at an end when [it] conclude[s] ... there is substantial evidence to support the [Trustees' decision]. . . ." Hamrick v.

Schweiker, 679 F.2d 1078, 1082 (4th Cir. 1982).

In the present case, there is substantial evidence to support the

Trustees' conclusion that Vernatter had not established that a mine

accident within the meaning of Q & A 252 had occurred. The record

contains several reports from doctors that vary in detail as to the

severity of, and even the date of, the alleged accident. The earliest

report that includes a reference to the June 1984 event is that of Dr.

Demosthenes Soulis. Dr. Soulis stated that on September 5, 1984,

Vernatter told him that "on June 8, 1984 he was covered up by rock

and sustained some cuts and bruises on his face and around his eyes."

JA at 317.

Arthur Ballas, a vocational consultant and psychologist, reported

on March 28, 1985 that Vernatter had suffered a"head injury" on

June 7, 1984. JA at 257. Ballas also reported that Vernatter told him

 8
that he had stopped working because "a piece of rock fell on me and

scared me out [of the mines]." Id.

On April 7, 1985, Paul Crawford, another psychologist reported

that Vernatter informed him that he had injured his nose on June 7,

1984, when it "was struck by a rock which fell from the ceiling of a

mine." JA at 256. This date and depiction of the event was also

reported by Dr. Kwan Ho Lee on May 31, 1985. See JA at 244.

On June 5, 1985, Dr. R.A. Crawford, Jr. reported that Vernatter had

told him that "[o]n June 7, 1984 a rock fell from the mine top striking

him on the nose." JA at 240. Dr. Crawford also indicated that Vernatter had not sought "medical treatment for this injury except that he

stopped work about July 1, 1984 due to nervousness and fear of

returning to work in underground coal mining." Id.

Vernatter told William Brezinski, a psychologist, on July 20, 1985,

that he was "struck by a piece of falling rock which hit him on the

forehead and lacerated his nose." JA at 242. Brezinski's report also

indicates that Vernatter informed him that after the incident, Vernatter

"was dazed for a few moments and stayed "shook up" for a long time

after that." Id.

In October 23, 1987, Vernatter told Dr. Nasreen Dar, a psychiatrist,

about the rock fall and claimed that his nose was broken by it. See JA

at 152. Finally, on July 13, 1995, Vernatter was examined by Dr.

Mohammed Ranavaya, a consultant in Occupational and Environmental Medicine. In a July 14, 1995 letter, Dr. Ranavaya stated:

Mr. Vernatter reports that ever since that rock fall on his

face in June 1984 in the mines his `nerves' are shot and he

has developed nervousness/fear to return to work after the

injury to his face. He states that he tried to return to work

but he was so tense and scared that he could hardly do his

job. He also states that he felt that he was going to die during the rock fall and the thought of going back to the mines

gives him a chill down his spine.

JA at 32. Moreover, Dr. Ranavaya reported that Vernatter told him

that his face had been injured "on June 11, 1984 when he was covered

 9
by a rock fall. According to him, he had black eyes and a broken nose

from this injury, but apparently he never went to the doctor for this."

JA at 33. Dr. Ranavaya found "evidence of facial injury in the past

which has resulted in the deformity of his nose and[a] deviated nasal

septum." JA at 35. He also found that Vernatter was suffering from

post-traumatic stress disorder. In making these determinations, however, Dr. Ranavaya relied solely on Vernatter's statements about the

alleged event as the cause of these injuries.

In fact all of the doctors, as well as ALJ Brown, who found that

Vernatter's post-traumatic stress disorder, anxiety and depression

were causally linked to the alleged June 1984 incident based their

opinions on information provided by Vernatter alone. However, as

has been shown, Vernatter provided three different dates for the accident: June 7, 8, and 11. As Q & A 252 requires a mine accident be

traceable to a "definite time, place, and occasion which occurred

within the course of the mine worker's employment," the Trustees

could reasonably find that the reports offered by Vernatter did not

establish that a mine accident had occurred. The reports also varied

in the severity of the event. Some indicated that a rock had simply

struck Vernatter's nose, others that his nose had been lacerated, and

still others that he had been given black eyes and a broken nose.

Given these contradictions, this Court believes that the Trustees reasonably concluded that the reports lacked reliability. On the other

hand, the district court opined that these inconsistencies were minimal

and "rather insignificant." JA at 415. The district court, in attempting

to resolve the conflicting but credible evidence as presented by this

record, in effect substituted its judgment for that of the Trustees. This

is, of course, precluded under the abuse of discretion standard of

review. See Hamrick, 679 F.2d at 1082.

Moreover, the record also includes reports which do not reference

the alleged accident. For example, there is no mention of the incident

in either Dr. V.D. Modi's December 18, 1984 report or his September

29, 1987 report. See JA at 164-67, 321-24. Moreover, in his January

28, 1985 letter to the State of West Virginia Disability Determination

Section, Dr. I.A.K. Rana commented on Vernatter's depression due

to the death of his son. He, however, did not make any mention of the

alleged June 1984 accident. See JA at 272. Finally, there is a report

from Constantine G. Demopoulos, a vocational consultant and clinical

 10
psychologist, dated September 17, 1984, which not only does not

mention the June 1984 incident, but also states that"[n]o facial disfigurement was indicated." JA at 320. Therefore, according to

Demopoulos, a mere three months after the alleged accident, Vernatter did not have any visible signs of such an event.

The Trustees also note that not only did Vernatter not seek medical

treatment immediately after the incident, he worked overtime for

weeks afterward. See JA at 118. Moreover, the Trustees note that

Vernatter never reported the incident to the Workers' Compensation

Fund, although he spent three years (1984-1987) trying to get benefits

from it. See JA at 140, 142-47.

The only independent evidence submitted by Vernatter to support

his claims were three statements by former co-workers. These three

identical statements were are all signed on February 23, 1995. Each

assert that the co-worker "witnessed the mine accident on June 11,

1984 in which Howard Vernatter was involved." JA at 52-54. These

statements are very general in nature. They do not indicate whether

Vernatter was actually struck by a rock or merely present when a rock

fall occurred. In fact, they do not indicate what type of "mine accident" occurred. The district court stated that"[t]he [witness] statements strike the court as evidence that something happened on that

day." JA at 417 (emphasis in original). While conceivably this may

be true, the 1974 Pension Plan requires more than just evidence that

something happened. Q & A 252 requires evidence of unexpectedness, definiteness, and force or impact upon the body.

The district court relied heavily on Richards and Boyd, and held

that Judge Brown's findings were to be given great weight. Further,

in its Order denying the parties Joint Motion Requesting Remand, the

district court stated that "when the ALJ makes specific findings,

absent legal error, they are not to be ignored by the party to whom

they are detrimental or inconvenient." JA at 409. We believe that the

reliance on Richards was misplaced.

In Richards, the plaintiff, Homer Richards had chest pains while he

was lifting heavy timbers at work, on January 30, 1981. 895 F.2d at

134. No accident report was filed, and there was not any independent

verification by the eyewitnesses to the event. The next day, January

 11
31, 1981, while attending a wrestling match, Richards suffered severe

chest pains which were later diagnosed as symptoms of a heart attack.

The issue in the case was when Richards had suffered the heart attack,

at work, or at the match. Further, there was conflicting testimony by

two physicians. One found that the heart attack was caused by the

heavy lifting at work and the other did not. Id . at 135.

This Court found that "[a] reading of the Trustees' regulations

establishes that, once Richards shows that he suffered a heart attack

while lifting heavy objects in the mine, he qualifies for benefits if the

heart attack in turn caused his disability." Id. at 137. There was no

question that the heart attack had caused the disability, only whether

it had occurred at work. Because an at-work heart attack is specifically enumerated in Q & A 252, this Court found that it "preclude[d]

further inquiry into whether the heavy lifting was merely coincidental

to or instead actually caused the heart attack." Id.

In making the determination whether Richard's heart attack

occurred at work, this Court noted that there was conflicting evidence.

This Court held, however, that the SSA determination of the disability

onset date as January 30, 1981 tipped the scale in favor of finding that

the heart attack occurred on that date. This Court stated:

Both the Social Security Administration and the Ohio

Bureau of Workers' Compensation predicated their awards

of benefits to Richards on a disability onset date of January

30, 1981. . . . The social security finding as to the date of

onset probably does not by itself decide the matter. Nonetheless, it appears that the social security determination that

Richards' disability began on January 30, 1981 is entitled to

great weight, reducing in the present case, the contrary evidence to insignificance.

Id. at 138.

The present case is distinguishable from Richards. In Richards, the

Trustees did not have to apply Q & A 252's three characteristics test

because a heart attack was specifically enumerated as a mine accident. In the instant case, however, Q & A 252 does not specifically

mention injuries stemming from rock falls. Nor does it specifically

 12
state that any psychological disability that occurs after an injury due

to a rock fall is necessarily caused by that incident. Therefore, Vernatter was required to establish that a mine accident, having the characteristics of unexpectedness, definiteness, and force or impact upon the

body, had occurred.

Further, in Richards, unlike here, there was no question about causation. The real issue in Richards was the disability onset date. The

plain language of the 1974 Pension Plan delegates the authority to

determine whether the applicant is disabled to the SSA. "[A] Social

Security disability award conclusively establishes the medical disability of the pension applicant." Robertson v. Connors, 842 F.2d 472,

475 (4th Cir. 1988). The disability award, however, does not conclusively establish that the disability was the "result of a mine accident."

See Hale v. Trustees of the United Mine Workers Health & Retirement Funds, 23 F.3d 899, 902 (4th Cir. 1994).

An ALJ, in making the determination about disability or the disability onset date, does not have to consider whether the disability

was caused by a mine accident as defined by Q & A 252. Instead, the

ALJ uses a five-step test, which focuses on the medical status of the

claimant. See Sullivan v. Zebley, 493 U.S. 521 (1990). Although, in

this case, Judge Brown's findings did indicate that Vernatter's disability stemmed from the alleged June 1984 incident, she did not have to

apply the 1974 Pension Plan's definition of mine accident in making

the disability determination. Therefore, her findings that an accident

occurred, unlike her findings as to disability and disability onset date,

are not entitled to great weight.

Moreover, Article VIII. A of the 1974 Pension Plan states that

"[t]he Trustees or such other named fiduciaries as may be properly

designated shall have full and final determination as to all issues concerning eligibility for benefits." JA at 376. Therefore, the findings as

to whether a mine accident has occurred within the meaning of the

1974 Pension Plan, and the determination as to causation are for the

Trustees, and not the SSA to make. See Hale, 23 F.3d at 902.

The Trustees had substantial evidence to reasonably conclude that

Vernatter had not submitted "credible information showing an injury

in the mines on a given date that involved force or impact against his

 13
body as required by Q & A 252: "(1) the absence of an accident

report, (2) the lack of Worker's Compensation records, (3) the

absence of contemporaneous medical reports, (4) the inconsistencies

found in the existing medical reports, and (5) the fact that the only

independent sources of evidence supporting Vernatter's claim were

three brief unspecific statements by his coworkers. Appellants' Reply

Brief at 3. See Brogan, 105 F.3d at 163. Accordingly, we reverse and

remand this case to the district court with instructions to enter summary judgment in favor of the Trustees.

REVERSED AND REMANDED

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