### The Honorable Lyle E. Strom, United States Dis trict Judge for 1 

### the District of Nebraska, sitting by designation.



# United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-2063

___________ Curtis Duffie, * * Plaintiff-Appellant, * * v. * Appeal from the United States * District Court for the Deere & Company; The Disability * Northern District of Iowa. Benefit Plan for Hourly and * Incentive Paid Employees for * [PUBLISHED] Deere & Company, * * Defendants-Appellees. *

___________ Submitted: December 13, 1996 Filed: April 9, 1997

___________ Before BOWMAN and LAY, Circuit Judges, and STROM, District Judge. 1

___________

PER CURIAM.
Curtis Duffie brought this action ag ainst his former employer, Deere & Company, pursuant to 29 U.S.C. § 1132, part of the Employee Retirement Income Security Act ( ERISA), 29 U.S.C. § 1101 et seq . Duffie appeals the distri ct court’s decision to affirm the Plan Administrator’s denial o f disabi litybenefits under Deere’s Plan for Hourly and Incentive Pai d Employees.

### Although Deere raises the jurisdictional argum ent that Duffie 2 

### failed to exhaust his remedies , we agree with the district court’s rejection of such a claim on the ground that Deere, notwiths tanding the failure to exhaust, acquiesced in Duffie’s appeal procedure.
2 The distr ict court affirmed Deere’s denial of benefits in a cursory opinion, finding that Duffie was not unable to perform and attend his job due to any sickness or injury. The court concluded that the “plaintiff failed to prove by a preponderance of the evidence that he was totall y disabled within the meaning of the Plan prior to the termination of hi s employment.” Duffie v. Deere & Co. , No. C93-1025, slip op. at 2-3 (N.D. Iowa Mar. 22, 1996).

Th oughDeere argues otherwise, the Plan Administrator’s decisio n should not be reviewed under the arbitrary or capricious standard. That standard is used only when a plan administrator has discretionary authorit y to determine eligibility for benefits or to construe the terms of the plan

. Firestone Tire & Rubber v. Bruch , 489 U.S. 101, 115 (1989). The plan here does not provide the Plan Administrator with this power. The distric t court properly reviewed the claim de novo, making findings of fact an d
conc lusions of law. We review the district court’s findings of fac t (which, in this case, includes only one finding) under the clearl y erroneous rule. Grea ter Kan. City Laborers Pension Fund v. Superior Gen. Contractors, Inc. , 104 F.3d 1050, 1054 (8th Cir. 1996). 2
Background Curti s Duffie had been employed in various positions at Deere fo r twenty -one years, when in 1988 Deere terminated his employment, citin g Duff ie’s chronic tardiness and absenteeism as its reason. From 196 7 thr ough1988, the term of Duffie’s employment with Deere, he repeatedl y missed work, most often for medical reasons. Deere’s “Absence Occurrences ” chart reflects that Duffie took approximately

### These figures ar e rough but conservative approximations from 3 

### Deere’s chart. Duffie’s brief estimates that he “was on medica l leave for approximately 1400 days from 1975 through 1988 due to a varie tyof medical problems.” Appellant’s Br. at 3. The brie f also notes that while this number includes non-work days such a s weekends and holidays, it does not include shorter-term absences. Id. at 3 n.1. Apparently, the “Absence Occurrences” chart set s out only Duffie’s medical leave, and not his individual sick days or tardiness. 3 194 weeks of medical leave: thirty-two weeks for injuries and pain in his back, neck, and shoulders; thirty-one weeks for stomach problems; nineteen weeks for elbow surgery; thirteen weeks for depression; twelve weeks for hyp ertension; eleven weeks for a jaw fracture; ten weeks for depressio n headaches; eight weeks for foot surgery; seven weeks for carpal tunne l surgery; five weeks f or headaches; four weeks for rib surgery; four weeks for a burned hand; an d thirty-eight weeks for miscellaneous illnesses and
reasons. App. at 243. Duffie’s me dical records show that at the time of

3 his te rmination in 1988, he suffered from arthritis, fibromyalgia ( a ch ronic musculoskeletal pain syndrome), neuropathy and carpal tunne l synd rome (both syndromes affecting the nerves), headaches, depression , substance abuse (alcoholism), and Post Traumatic Stress Disorder.

In Dec ember 1981, Deere held an “unemployable” conference wit h Duffie, where Duffie was told his absenteeism rate was fifty percent, and that he needed to “get his medical problems under control.” Record o f Unempl oyable Conference (Dec. 11, 1981), App. at 233. A Deer e representative told Duffie that if his attendance did not improve, he woul d be terminated. Id. When the absences continued, a Deere representative held a second unemployable conference in March 1984. The representative told Du ffie that his absenteeism rate was fifty-three percent, and i f absenteeism continued, “a third conference wouldeventually be held and at that

### 4

time a disciplinary action hearing would be convened and he would b e terminated.” Record of Unemployable Conference (March 12, 1984), App. at 234

. In March 1985, Deere management conducted another conference wit h Duf fie, which was not termed an unemployable conference, but rather wa s held to “review [Duffie’s] absenteeism and current status.” Record o f Con ference (March 14, 1985), App. at 235. At that meeting, Duffi e expressed his desire to enter an inpatient alcohol treatment program, but management told him that outpatient treatment wo uld be “best suited to his current situation” because of his absenteeism rate. Id. Deere terminate d Duffie from work in April 1987, but rehired him under a “last chanc e agreement” in August 1987. Under the agreement, Duffie could return t o work o n probationary status, but with the understanding that continue d attendance problems would result in termination. He missed 170.75 hours of work after signingthis agreement, and was finally terminated June 22, 1988, due to his “accumulation of absences.” Rec ord of Disciplinary Action (June 22, 1988), App. at 239, 241. In Mar ch 1992, Duffie sought disability benefits under Deere’ s Disability Benefit Plan for Hourly and Incentive Paid Employees (the Plan)

. In June 1992, Deere denied Duffie’s application for benefits. Duffi e req uested the United Automobile, Aerospace and Agricultural Implemen t Wor kers of America (the Union), to which he had belonged while he wa s employed at Deere, to appeal the decision. The Union refused. Deere then gave Duffie permission to appeal individually to the Plan Administrator. The Plan Administrator denied Duffie’s appeal, determining that none of hi s conditions, “alone or coupled with others,” prevented Duffie from doing hi s job. Duffie argued to the Plan Administrator that despite his apparen t ability to perform hi s job, he was, due to his health problems, unable to attendhis job, and was thereby disabled under the Plan. The Pla n Administrator rejected this argument,

### 5

conclud ing that even “without considering absences related to illnes s and/or injury, Claimant had a deplorable attendance record -- a recor d ju stifying disciplinary action under the circumstances of his case. ” Reviewof Denied Claim for Disability Benefits (March 31, 1993), at 16

. According to the Plan Administrator, Duffie’s ab sences were due not to his various maladies, but instead to his “irresponsibility.” Id. at 18.
Findings of the District Court

Under Federal Rule of Civil Procedur e 52(a), trial courts should and must “state legal andfactual conclusions sufficient to give an appellate court a clear understanding of the grounds of its decision.” White Indus. , Inc. v. Cessna Aircraft Co. , 845 F.2d 1497, 1499 (8th Cir. 1988). If an app ellate court does not know what facts the trial court took int o consideration in drawing its conclusions, its findings become suspect. Se e Atlantic Thermoplasti cs Co. v. Faytex Corp. , 5 F.3d 1477, 1479 (Fed. Cir. 1993) (remanding because the district court’s findings were “too conclusor y and sparse ” to provide a factual basis for appellate review); EEOC v
. United Va. Bank/Seaboard Nat’l , 555 F.2d 403, 40 6 (4th Cir. 1977) (holding that appellate review is precluded when “the trial court provides onl y conclusory findings, illuminated by no subsidiar y findings or reasoning on all the relevant facts”).

The only critical fact the district court found states as follows : “Plaintiff was not, by sickness or injury, rendered unable to attend and perform the duties of his occupation prior to his termination fro m employment on June 22, 1988.” Duffie v. Deere & Co. , No. C93-1025, slip op. at 2 (N.D. Iowa Mar. 22, 1996). Because the district court provided
no support or additional findings, we hold that this finding is clearl y erroneous. The

### The record also indicates that Duffie’s musculoskeleta l 4 

### difficulties caused him pain when he was working, and that h is work as a forklift driver exacerbated the pain. See, e.g. , App. at 46 (setting out Duffie’s testimony). 6 re cord is overwhelmingly contrary to the district court’s conclusor y finding.

The record shows that Duffie had approximately forty-five docto r visits between July 2 3, 1987 (the date of the last chance agreement), and June 22, 1988 (the da te he was terminated). Of the total 170.75 hours of documented absences o ccurring after the last chance agreement, the record is undisputed that 132.5 hours were related to illness, including 36. 5 hours missed for the flu and 88 hours missed for a broken ankle. Duffie was ultimately termin ated for his “accumulation of absences.” The record is replete with corroboration of Duffie’s visits to physicians -- often th e Deere physician -- during this period. Duffie saw a Deere physician for degene rative ailments related to knee, elbow, back and neck problem s throughout February 1 988. Duffie phoned a Deere physician concerning his should er pain on June 22, 1988, the day of his discharge. Deer e
cons istentlyreferred to Duffie’s medical problems when discussing hi s absenteeism. The medical record inthis case is voluminous; there can be 4 little reasonable doubt that Duffie’s absenteeism was causally related to Duffie’s numerous medical problems. Additionally, there should be little doubt that the district court’s concl usionthat Duffie was not disabled within the meaning of the Pla n directly f ollowed from its finding that he was not rendered unable t o attend his job by reason of his illnesses. Since the underlying factual finding is clearly er roneous, we think it procedurally judicial to remand the ca se to the district court to decide again the ultimate issue o f whether Duffie is disabled

### We are cognizant that the Plan Administrator conceded tha t 5 

### the test for disability under the Deere Plan is substantially the same a s the standard followed by the Social Securit y Administration. All parties agree that upon the date o f termination, Duffie had been f ound to be “totally disabled” by the Social Security Administration, and not capable of undertakin g substantial gainful activity. We are also cognizant, howeve r, that Deere was not privy to that litigation, and although the award of benefits and finding of the Social Security Administration i s admissible evidence in this case to support Duffie’s claim, it is not binding against Deere.
7 under the Plan, making further factual findings to support it s determination. For us to proceed to the ultimat e issue of disability with
no factual findings as our basis would violate this court’s function, whic h is to review, rather than to make, findings of fact. See Atlanti c Thermoplastics , 5 F.3d at 1479 (“This court must review factual findings mad e by the district court; it may not guess at findings left unmade

. Fact-f inding by the appellate court is simply not permitted.”) (citin g Anderson v. City of Bessemer City , 470 U.S. 564, 573 (1985)). 5

Thus, we remand to the district court for a de novo review of th e issue of Duffie’s disability under the Plan as of the date of his las t termina tion. The court must apply the law of the case, bearing in min d that this court holds the earlier determination that Duffie was no t rendered unable to attend his job to be clearly erroneous.

The district court shall make its fi ndings and certify such findings within ninety days to the clerk of this court.

IT IS SO ORDERED.

### 8 A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.