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The Honorable David S. Doty, United States District Judge for the District of

Minnesota

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-1517

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Daniel Johnson, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Bert Bell/Pete Rozelle NFL *

Player Retirement Plan, *

*

Appellee. *

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Submitted: September 28, 2006

Filed: November 21, 2006

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Before WOLLMAN, BOWMAN, and BENTON, Circuit Judges.

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WOLLMAN, Circuit Judge.

Daniel Johnson appeals from the district court’s1

 grant of summary judgment

in favor of Bert Bell/Pete Rozelle NFL Retirement Plan (Plan) in his action brought

pursuant to the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§

1001, et seq. We affirm.
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I.

Johnson played professional football from 1982 until 1988, when he suffered

a career-ending back injury while diving for a pass. In August 1988, Johnson

underwent surgery to repair the injury, but thereafter his condition continued to

gradually degenerate. As a vested inactive professional football player, Johnson is

eligible for disability benefits under the Plan if he becomes totally and permanently

disabled. A player is considered to be totally and permanently disabled if he is

“substantially prevented from or substantially unable to engage in any occupation or

employment for remuneration or profit.” Under the Plan, the Disability Initial Claims

Committee (Claims Committee) decides all initial claims for disability benefits. The

Plan’s Retirement Board (Board) decides appeals from decisions made by the Claims

Committee and renders final decisions on behalf of the Plan. If the Board is

deadlocked concerning a decision, the dispute can be referred to a Medical Advisory

Physician (MAP), whose opinion is final and binding on the Board. 

Johnson first applied for total and permanent disability benefits under the Plan

in October 2000, citing back problems resulting from his 1988 injury. The Plan had

him undergo a medical examination with Dr. Edward Hanley, who concluded that

Johnson was not totally and permanently disabled and could perform sedentary work.

Based on this conclusion, the Claims Committee denied Johnson’s claim. Johnson’s

appeal was denied by the Board. 

On November 21, 2001, Johnson sought a medical opinion from Dr. Scott

Middlebrooks, who concluded that Johnson was “disabled from any occupation.”

Johnson consequently reapplied for disability benefits in February 2002, whereupon

the Plan again referred him to Dr. Hanley for an evaluation. In his March 14, 2002,

opinion, Dr. Hanley answered “yes” to the question whether Johnson was totally

disabled, but also remarked that Dr. Middlebrooks’s diagnosis was consistent with Dr.

Hanley’s previous evaluation. Because Dr. Hanley had previously concluded that
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Johnson was not totally and permanently disabled, the Claims Committee asked him

to clarify his answer. Dr. Hanley replied that Johnson “could probably do sedentary

work.” Based on this information, the Claims Committee denied Johnson’s second

application for benefits.

Johnson appealed the Claims Committee’s second denial, and the Plan referred

him to Dr. Craig Chebuhar for another evaluation. On July 23, 2002, Dr. Chebuhar

determined that Johnson was totally and permanently disabled and unable to return to

any gainful employment, but also noted that this was a “difficult question.”

Thereafter, the Board sent Johnson to a MAP, Dr. Bernard Bach, for a final, binding

determination regarding Johnson’s disability status. On October 30, 2002, Dr. Bach

concluded that Johnson was totally and permanently disabled. He also commented

that he believed the disability had persisted for more than twelve months.

Consequently, the Board awarded Johnson disability benefits at its January 2003

meeting and began paying him monthly benefits thereafter. 

To determine the date when Johnson’s disability became total and permanent,

which would determine whether he was entitled to any retroactive benefits, the Board

asked Johnson to submit additional evidence that would support a disability onset

date earlier than January 1, 2003, including past tax records and Social Security

earnings. Johnson provided past tax records and Social Security earnings, but did not

provide any additional medical information. The Board found that Johnson’s tax and

Social Security records showed that he had received wage and self-employment

income during most, if not all, of the years from 1988 through 2002. Based on this

information and Dr. Chebuhar’s report, the Board determined that the effective date

of Johnson’s total and permanent disability was July 23, 2002, the date on which Dr.

Chebuhar found Johnson to be totally and permanently disabled. Accordingly,

Johnson was entitled under the Plan to receive retroactive benefits as of August 1,

2002,– the first day of the month following the disability onset date. On appeal, the

Board denied Johnson’s request for an award of benefits prior to August 1, 2002. 
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Johnson then commenced this action, alleging that the Board abused its

discretion when it denied his claim for retroactive benefits prior to August 1, 2002.

It is from the district court’s decision that the Board did not abuse its discretion that

Johnson appeals.

II.

“We review de novo the district court’s grant of summary judgment, viewing

the record in the light most favorable to the nonmoving party.” Tillery v. Hoffman

Enclosures, Inc., 280 F.3d 1192, 1196 (8th Cir. 2002). Because the Plan gives the

Board the discretionary authority to construe the terms of the Plan and to determine

eligibility for benefits, we review the Board’s decision for abuse of discretion. Norris

v. Citibank, N.A. Disability Plan (501), 308 F.3d 880, 883 (8th Cir. 2002). “This

deferential standard reflects our general hesitancy to interfere with the administration

of a benefits plan.” Id. (quoting Layes v. Mead Corp., 132 F.3d 1246, 1250 (8th Cir.

1998)). Under the abuse of discretion standard, “we must affirm if a reasonable

person could have reached a similar decision, given the evidence before him, not that

a reasonable person would have reached that decision.” Wise v. Kind & Knox

Gelatin, Inc., 429 F.3d 1188, 1190 (8th Cir. 2005) (quoting Ferrari v. Teachers Ins.

& Annuity Ass’n, 278 F.3d 801, 807 (8th Cir. 2002)). To be reasonable, the decision

must be supported by substantial evidence. Norris, 308 F.3d at 883-84. Substantial

evidence is “such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Id. at 884 (quoting Fletcher-Merrit v. NorAm Energy Corp.,

250 F.3d 1174, 1179 (8th Cir. 2001)). 

 Johnson contends that a less deferential standard should apply because the

Board’s composition creates a conflict of interest . While “[a] conflict of interest may

trigger a less deferential standard of review,” Tillery, 280 F.3d at 1197, no such

conflict exists here. The Board is composed of an equal number of NFL managementappointed representatives and NFL player-appointed representatives and must reach
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a majority vote on any disability determination. If a majority is not reached, the case

can be forwarded to a MAP for a final, binding disability determination. Given this

arrangement, there is no conflict of interest. See, e.g., Manny v. Central States,

Southeast and Southwest Areas Pension and Health and Welfare Funds, 388 F.3d 241,

243 (7th Cir. 2004); Courson v. Bert Bell NFL Player Retirement Plan, 75 F.Supp. 2d

424, 431 (W.D. Pa. 1999). Accordingly, the Board’s decision need not be subjected

to a more stringent standard of review. 

III.

We turn to the question whether the Board abused its discretion when it set

August 1, 2002, as the date when Johnson’s disability became permanent and total.

To support his argument that the Board abused its discretion, Johnson initially

contends that the Board was bound by that portion of Dr. Bach’s October 30, 2002,

opinion which stated that Johnson’s disability had persisted for more than twelve

months. At the latest, this would establish October 30, 2001, as the date of onset and

require the plan to make disability payments retroactive to November 1, 2001.

Johnson therefore contends that the Board abused its discretion when it set Johnson’s

effective date as August 1, 2002, rather than in accordance with Dr. Bach’s binding

determination. 

Under Section 8.3 of the Plan, the Board may call upon a MAP for a final and

binding determination as to “whether a claimant medically is substantially prevented

from or substantially unable to engage in any occupation or employment for

remuneration or profit.” Johnson asserts that this language makes Dr. Bach’s opinion

regarding the duration of the disability binding on the Board. The Board, which has

the authority to interpret the Plan’s provisions, does not consider itself bound by Dr.

Bach’s statement. We conclude that the Board’s interpretation is reasonable. A plain

reading of Section 8.3 suggests that the Board is bound to a MAP’s opinion regarding

whether a total and permanent disability exists, but not necessarily as to when the
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disability became total and permanent. A determination regarding the onset date

might well often be difficult for a MAP to make, for it typically requires a

consideration of evidence that cannot be gleaned from a medical examination itself,

such as the past employment and medical records of the claimant. Further, the

physician report form that must be completed by a MAP does not ask the MAP to set

an effective date for the total and permanent disability. Had the Plan intended such

a determination to be binding on the Board, the MAP would likely have been asked

to make this determination. For these reasons, we think it was reasonable for the

Board to conclude that it was not bound by Dr. Bach’s statement concerning the onset

of the disability. Accordingly, the Board had the discretion to make such a

determination, a discretion that it did not abuse by setting a date that was not in

accordance with Dr. Bach’s opinion.

Johnson further contends the Board abused its discretion when it refused to set

an earlier effective date because its decision was not supported by substantial

evidence. In making its determination, the Board examined Johnson’s medical

records and employment history and concluded that Johnson was not totally and

permanently disabled until Dr. Chebuhar’s July 23, 2002, examination. The Board

relied primarily on Dr. Hanley’s opinion and the earnings Johnson received from his

landscaping business as evidence that Johnson was not totally and permanently

disabled prior to that date. Johnson argues this decision was unreasonable because Dr.

Hanley’s opinion did not constitute substantial evidence and the earnings from

Johnson’s business should not have been considered. We disagree. 

Johnson’s medical history contained conflicting reports regarding the date of

his disability. Dr. Middlebrooks opined that Johnson was totally and permanently

disabled in November 2001. Dr. Hanley initially appeared to make a similar

determination in his March 2002 report, but in April 2002 stated that Johnson “can

probably do sedentary work.” In October 2002, Dr. Bach found that Johnson was

totally and permanently disabled and stated that “the disability has persisted for at
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least twelve months.” These opinions do not provide a clear picture as to the actual

onset date of Johnson’s total and permanent disability. The opinions of Dr.

Middlebrooks and Dr. Bach can be interpreted to support a finding that Johnson was

totally and permanently disabled on or around October/November 2001, whereas Dr.

Hanley’s opinion can be interpreted to contradict those opinions and show that

Johnson could perform sedentary work as of March, 2002. Because Dr. Hanley was

one of the Plan’s neutral physicians and had earlier examined Johnson, the Board

ultimately gave greater weight to his testimony and determined that it showed that

Johnson was not disabled in November 2001. Johnson contends that Dr. Hanley’s

opinion did not constitute substantial evidence because his April 2002 statement was

a short, conclusory remark that contradicted his March 2002 opinion rather than

clarifying it. 

Because Dr. Hanley’s April statement was made in response to the Board’s

request for clarification, we think it was reasonable for the Board to interpret it as such

and conclude that Dr. Hanley believed that Johnson was not totally and permanently

disabled as of March 2002. Further, we do not think it was unreasonable for the

Board to give greater weight to Dr. Hanley’s opinion. The Board, as the plan

administrator, had the authority to weigh the conflicting testimony and come to a

reasonable conclusion. As recounted above, Dr. Hanley was a neutral physician who

had experience working with the Plan and had earlier examined Johnson. Dr.

Middlebrooks, on the other hand, was not a Plan physician, was retained by Johnson,

and had never before examined him. As for Dr. Bach’s opinion, the parties dispute

whether his statement concerning the length of the disability was referring to total and

permanent disability or some lesser form of disability. Given these circumstances, we

think the Board’s decision was reasonable. 

As for Johnson’s employment history, Johnson contends that the earnings he

received as the owner of a landscaping business from 1999 until 2002 should not have

been considered. Johnson claims that because as the owner/manager he was not
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actively involved in any of the actual labor performed by the business, these earnings

should have been excluded from consideration because the Plan provides that “[a]

[p]layer will not be considered to be able to engage in any occupation or employment

for remuneration or profit merely because such person . . . manages personal or family

investments.” The Board, however, interprets this provision as applying only when

a player is managing an investment portfolio, and not when the player is managing or

owning an active business. Again, the Board has the authority to construe the terms

of the Plan, we are required to give deference to its interpretation, and we reverse only

if it has abused its discretion. Leonard v. Southwestern Bell Corp. Disability Income

Plan, 341 F.3d 696, 703 (8th Cir. 2003). Given the Plan’s language, we cannot say

the Board’s interpretation was unreasonable or constituted an abuse of discretion. The

Board therefore acted within its rights in considering Johnson’s earnings from his

landscaping business when determining the onset date of his permanent and total

disability.

Given Johnson’s medical records and employment history, we conclude that

there is substantial evidence to support the Board’s decision to set the effective date

of permanent and total disability as August 1, 2002, rather than Johnson’s proposed

earlier date. Johnson’s tax records showed that he had received earnings through

2002, and Dr. Hanley’s opinion supported a finding that Johnson was not totally and

permanently disabled as of March, 2002. Although there is evidence that would

support an earlier effective date, a reasonable person could have concluded that

Johnson’s disability benefits should start on August 1, 2002. Accordingly, the Board

did not abuse its discretion when it refused to set a start date earlier than this. 

The judgment is affirmed.

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