1 The Honorable David S. Doty, United Stat es District Judge for the District of Minnesota 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-1517

___________ 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. *

___________ Submitted: September 28, 2006 Filed: November 21, 2006

___________ Before WOLLMAN, BOWMAN, and BENTON, Circuit Judges.

___________ WOLLMAN, Circuit Judge. Daniel Johnson appeals from the district court’s 1 grant of summary judgment in favor of Bert Bell/Pete Rozelle NFL Re tirement Plan (Plan) in his action brought pursuant to the Employee Retirement Inco me Security Act (ERISA), 29 U.S.C. §§ 1001, et seq. We affirm.-2- 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 inac tive professional football player, Johnson is eligible for disability benefits under the Pl an 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 dis pute can be referred to a Medical Advisory Physician (MAP), whose opinion is final and binding on the Board.

Johnson first applied for total and perm anent disability benefits under the Plan in October 2000, citing back problems resu lting 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 Co mmittee 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 Johns on was “disabled from any occupation.” Johnson consequently reapplie d 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. Middleb rooks’s diagnosis was consistent with Dr. Hanley’s previous evaluation. Because Dr. Hanley had previously concluded that-3- Johnson was not totally and permanently di sabled, the Claims Committee asked him to clarify his answer. Dr. Hanley rep lied that Johnson “could probably do sedentary work.” Based on this information, th e 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 eval uation. On July 23, 2002, Dr. Chebuhar determined that Johnson was totally and perm anently 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 MA P, Dr. Bernard Bach, for a final, binding determination regarding J ohnson’s disability status. On October 30, 2002, Dr. Bach concluded that Johnson was totally and pe rmanently disabled. He also commented that he believed the disability had pers isted for more than twelve months. Consequently, the Board awarded Johnson disability benefits at its January 2003 meeting and began paying him m onthly benefits thereafter.

To determine the date when Johnson’s disability became total and permanent, which would determine whether he was entitle d to any retroactive benefits, the Board asked Johnson to submit additional eviden ce that would support a disability onset date earlier than January 1, 2003, includi ng 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 hehad received wage and self-employment income during most, if not all, of th e years from 1988 through 2002. Based on this information and Dr. Chebuhar’s report, the Board determin ed 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 receiveretroactive benefits as of August 1, 2002,– the first day of the month following th e disability onset date. On appeal, the Board denied Johnson’s request for an awar d of benefits prior to August 1, 2002.-4- 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 construethe terms of the Plan and to determine eligibility for benefits, we re view 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 inte rfere 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 sta ndard, “we must affirm if a reasonable person could have reached a similar decision, gi ven 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-M errit v. NorAm Energy Corp ., 250 F.3d 1174, 1179 (8th Cir. 2001)).

Johnson contends that a less defere ntial standard should apply because the Board’s composition creates a conflict of intere st . While “[a] conf lict of interest may trigger a less deferential st andard of review,” Tillery , 280 F.3d at 1197, no such conflict exists here. The Board is compos ed of an equal number of NFL managementappointed representatives and NFL playe r-appointed representatives and must reach-5- a majority vote on any disability determination. If a majority is not reached, the case can be forwarded to a MAP for a final, bi nding disability determination. Given this arrangement, there is no conflict of interest. See, e.g. , Manny v. Central States, Southeast and Southwest Areas Pens ion 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 Bo ard 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 disab ility had persisted for more than twelve months. At the latest, this would establis h 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 clai mant medically is substantially prevented from or substantially unable to engage in any occupation or employment for remuneration or profit.” J ohnson asserts that this langua ge makes Dr. Bach’s opinion regarding the duration of the disability bi nding 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 Bo ard’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 exis ts, but not necessarily as to when the-6- disability became total and pe rmanent. A determinati on 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 comple ted by a MAP does not ask the MAP to set an effective date for the total and perman ent 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 Bo ard had the discretion to make such a determination, a discretion that it did not abuse by setting a da te that was not in accordance with Dr. Bach’s opinion.

Johnson further contends the Board abusedits discretion when it refused to set an earlier effective date because its decision was not supported by substantial evidence. In making its determinati on, 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 argue s 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 statedthat “the disability has persisted for at-7- least twelve months.” These opinions do notprovide a clear picture as to the actual onset date of Johnson’s total and perm anent disability. The opinions of Dr. Middlebrooks and Dr. Bach can be interpre ted 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 te stimony 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 remarkthat contradicted his March 2002 opinion rather than clarifying it.

Because Dr. Hanley’s April statement wa s made in response to the Board’s request for clarification, we think it was r easonable for the Board to interpret it as such and conclude that Dr. Hanl ey 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. Ha nley’s opinion. The Board, as the plan administrator, had the authority to wei gh 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 examinedhim. 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 landscapi ng business from 1999 until 2002 should not have been considered. Johnson claims that because as the owner/manager he was not-8- 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 o ccupation or employment for remuneration or profit mere ly because such person . . . manages pers onal or family investments.” The Board, however, interp rets this provision as applying only when a player is managing an investment portfo lio, and not when the player is managing or owning an active business. Again, the Boar d has the authority to construe the terms of the Plan, we are required to give deference to its interp retation, 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 Augus t 1, 2002, rather than Johnson’s proposed earlier date. Johnson’s tax records showedthat 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 refuse d to set a start date earlier than this.

The judgment is affirmed.

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