UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

John R. Crooker

v. Civil No. 05-cv-008-JD

Opinion No. 2007 DNH 069

Anheuser-Busch, Inc.

O R D E R

In his first claim under the Employee Retirement Income

Security Act ("ERISA"), John R. Crooker seeks retiree medical

benefits from his former employer, Anheuser-Busch, Inc. ("AB"). 

AB denied his claim for benefits, concluding that he was

ineligible due to his age and insufficient years of creditable

service with AB when he ceased active work. Crooker and AB have

filed a joint statement of material facts and each has filed a

motion for judgment on the administrative record as to Crooker's

first claim.

Background

Crooker began his employment with AB at the Merrimack, New

Hampshire, brewery in 1971. He became a member of the

International Brotherhood of Teamsters, Chauffeurs, Warehousemen

and Helpers of America, Local Union #633, at the same time. On

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February 27, 1997, Crooker was injured at work. He was fifty-one

years old at the time of his injury.

Because of his injury, Crooker stopped working on October

25, 1998, and began receiving workers' compensation benefits. At

that time, Crooker had accrued eight years and five and one-half

months of continuous employment with AB since his forty-fifth

birthday. Crooker was maintained on the AB payroll records with

contractual wage increase information until September 18, 2002,

when he entered into a Severance Agreement with AB to settle his

workers' compensation claim. As part of that agreement, Crooker

resigned from employment at AB as of September 18, 2002.

As a member of Local Union #633, the terms and conditions of

Crooker's employment at AB were governed by a collective

bargaining agreement (the "CBA"), the 1998-2004 Plant Agreement

Between AB and the Brewery and Soft Drink Workers Conference,

U.S.A. and Canada and Local Union 633 Affiliated with the

International Brotherhood of Teamsters, Chauffeurs, Warehousemen

and Helpers of America. AB also provided insurance benefits

through the Group Insurance Plan for Certain Employees of

Anheuser-Busch Companies, Inc., which includes the Information

Sheet for Early Retiree Eligibility and the Administrative

Booklet, (the "Plan"). Under the terms of the CBA and the Plan,

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members of the Union could be eligible for retiree health

benefits based on meeting certain requirements.

Crooker filed suit to receive retiree medical benefits from

AB, who removed the action from state court to this court. In

his third amended complaint, Crooker alleged two ERISA claims,

one under 29 U.S.C. § 1132, seeking medical benefits under the

Plan, and a second claim, brought under 29 U.S.C. § 1140,

alleging that AB discharged or discriminated against him to

interfere with his rights under the Plan. The parties agreed to

remand the § 1132 claim to the Plan Administrator for a

redetermination of Crooker's eligibility. The second claim,

brought under § 1140, is stayed pending the outcome on the first

claim.

On March 8, 2006, the AB Health and Welfare Benefits

Eligibility Appeals Committee denied Crooker's claim for retiree

medical benefits because he had not achieved ten years of

credited service. AB determined that the time Crooker was not

working, after October of 1998 but before his employment was

terminated in 2002, was not credited service because he did not

return to active work. 

Crooker appealed that decision, arguing that the Committee

improperly interpreted provisions of the summary plan description

and applied non-relevant rules for a leave of absence to his

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application. He argued that because he remained an AB employee

until 2002, that time should have been credited toward service

for purposes of his eligibility for retiree medical benefits. AB

denied his appeal "due to his not meeting the age and service

requirements for retiree medical coverage at the time of his

separation of employment from Anheuser-Busch . . . .' Ad. Rec.

at 137. The Committee again concluded that because Crooker did

not have a qualifying leave of absence, the time between October

of 1998 and September of 2002 did not count toward credited

service. The Committee also stated: "Contrary to the assertions

you make in your letter of April 20, 2006, Anheuser-Busch

administrators and the Committee have consistently interpreted

the Plan Documents's two year limitation and return to active

work requirements as applying to periods of extended absence due

to occupational as well as non-occupational injuries and

illnesses." Ad. Rec. at 139. The Committee concluded:

Based on the foregoing, it is the Committee's decision

that under the retiree medical eligibility rules Mr.

Crooker's credited service stopped accruing as of

October 25, 1998, his last day of active work prior to

his leave of absence. At that time Mr. Crooker was 53

years old, had 8 years of credited service under the

Plan, and was ineligible for retiree medical.

Ad. Rec. at 139.

The parties now seek judgment on the administrative record

as to Crooker's claim for retiree medical benefits brought under

§ 1132.

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Standard of Review

Anheuser Busch Corporation, AB's parent, is the Plan

Administrator. The parties agree that the Plan gives the

Administrator discretionary authority to interpret its provisions

and to make eligibility determinations. Ordinarily, such

discretionary authority means that the Administrator's decision

is reviewed deferentially, under an arbitrary and capricious

standard. See Morales Alejandro v. Med. Card Sys., Inc., ---

F.3d ---, 2007 WL 1430180, at *3 (1st Cir. May 16, 2007). 

Crooker argues that because the decision to deny him

benefits was not made by a third-party entity, "heightened

scrutiny of Anheuser-Busch's determination regarding Mr.

Crooker's eligibility is warranted due to the inherent conflict

of interest created by Anheuser-Busch's role as both

administrator and employer." Pl. Mem. at 5. Crooker further

argues that when a potential conflict of interest exists, the

court should review the challenged interpretation of the plan and

the surrounding circumstances to determine whether the structural

conflict influenced the decision to deny benefits. AB disputes

Crooker's conflict theory and asserts that the deferential

standard applies here.

Recently, a split panel of the First Circuit stated that the

standard applicable in ERISA cases where the plan administrator

is both the decision maker and the payor of benefits should be

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addressed by that court sitting en banc. Denmark v. Liberty Life

Assurance Co. of Boston, 481 F.3d 16, 19 & 41 (1st Cir. 2007). 

As that has not yet occurred, this court applies the "battletested standard of review." Id. at 40. 

The First Circuit holds that "the fact that the plan

administrator will have to pay the claim out of its own assets

does not change the arbitrary and capricious standard of review." 

Id. at 29 (internal quotation marks omitted); Green v. ExxonMobil

Corp., 470 F.3d 415, 418 n.2 (1st Cir. 2006). Instead, to

heighten the standard, the plaintiff must show that an improper

motivation actually affected the decision to deny benefits. 

Janeiro v. Urological Surgery Prof'l Ass'n, 457 F.3d 130, 140

(1st Cir. 2006). If such a conflict is demonstrated, the court

"may cede a diminished degree of deference - or no deference at

all - to the administrator's determinations." Id. at 141.

Crooker argues that AB's improper motivation is demonstrated

by its requirement that he resign his employment as a condition

of receiving the settlement of his workers' compensation claim

against AB. He contends that requirement shows that AB has an

interest in ending the employment of its employees who were

injured while working at AB and asserts that AB's "interest in

severing employment with workers injured on the job is related to

the claims of these workers for retiree benefits." Pl. Mem. at

6. He explains that he lacks evidence to support his theory

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because the severance requirement is part of his second claim,

which is stayed pending the outcome the motions for judgment on

the administrative record. 

Speculation that AB may have wanted to terminate Crooker's

employment to make him ineligible for benefits, if that indeed is

Crooker's theory, does not demonstrate a conflict of interest

that invokes a heightened standard of review. See Tsoulas v.

Liberty Life Assurance Co. of Boston, 454 F.3d 69, 77 (1st Cir.

2006) ("'To affect the standard of review . . . a conflict of

interest must be real. A chimerical, imagined, or conjectural

conflict will not strip the fiduciary's determination of the

deference that otherwise would be due.'" quoting Leahy v.

Raytheon Co., 315 F.3d 11, 16 (1st Cir. 2002)). Therefore, the

deferential standard will apply here.

"Under arbitrary and capricious review, [the] court will

uphold an administrator's decision to deny benefits to a

beneficiary if the decision was reasoned and supported by

substantial evidence." Denmark, 481 F.3d at 33. The plan

administrator's interpretation of plan language and its decision

to deny benefits must both be reasonable. Otero Carrasquillo v.

Pharmacia Corp., 466 F.3d 13, 17 (1st Cir. 2006). The court,

however, must defer to a reasonable decision and is not free to

substitute its own judgment for that of the administrator. 

Denmark, 481 F.3d at 33.

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Discussion

An AB employee, such as Crooker, who was hired before

January 1, 1995, is eligible for retiree medical benefits if

terminated from a full-time hourly position after January 1,

1995, and "on your last day of active work: you are at least age

55 but younger than 65, you have at least 10 years of credited

service as defined later in this information sheet, and you are

represented by IBT 633 at the Merrimack brewery." Ad. Rec. at

141. Credited service is defined to mean "continuous years of

employment" and includes "any periods of layoff or authorized

leave of absence of up to two years, only if you return to active

work at the end of the period." Ad. Rec. at 142. 

It is undisputed that on October 25, 1998, Crooker "ceased

working because of [a job related injury] and [] began receiving

workers compensation benefits on October 26, 1998." Joint

Statement ¶ 3. It is also undisputed that he never returned to

work at AB. He was fifty-three years old and had almost eight

and a half years of credited service when he ceased working at

AB. He remained an AB employee, however, until September of

2002, when he resigned his employment in exchange for settling

his workers' compensation claim against AB.

Based on the undisputed facts, Crooker did not qualify for

retiree medical benefits when he ceased working on October 25,

1998. In response to his application for benefits, AB considered

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whether the time between October 25, 1998, and September 18,

2002, while Crooker received workers' compensation because of his

injury but did not work at AB, was an authorized leave of absence

that qualified as "credited service." AB concluded that the time

after October 25, 1998, was not credited service because Crooker

did not return to full-time active work as would be required

under the leave of absence provision. 

Crooker argues that he should be credited for the time he

received workers' compensation benefits, although he was not

working, because he remained an AB employee during that time. He

argues that because an employee earns "one year of credited

service for each year of full-time employment," he should have

been credited for the four additional years he remained an

employee. He contends that the leave of absence provisions in

the Plan do not apply to him so that his failure to meet their

requirements does not bar his eligibility for benefits. 

Therefore, Crooker argues, AB's interpretation of the Plan,

imposing the leave of absence rules on him, was unreasonable and

led to an unreasonable decision to deny him benefits. Crooker

also argues that AB unreasonably considered its past

interpretations of the Plan that broadened the leave of absence

for medical reasons to include work-related injuries. 

The eligibility requirements are that an applicant must meet

the age and credited service criteria on his last day of "active

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1In fact, Crooker states that Article 14 of the CBA, titled

"Payment for Time Lost for Medical Attention Related to Injury

Arising out Employment," does not provide a leave of absence for

job-related injuries. Article 14 also does not provide for

credited service. 

10

work." If Crooker's theory were credited, his last day of

"active work" would have been September 18, 2002, when he had not

worked at AB for almost four years. Crooker makes no developed

argument that remaining an employee while receiving workers'

compensation equates with "active work" as used in the Plan. 

In the "Credited Service" section, the Plan defines "active

work" in the context of a leave of absence as follows: "Active

work means that you have been medically released to return to

work, in accordance with the company policies or collective

bargaining agreement in effect at your location." Ad. Rec. at

142. Crooker does not suggest that he was medically released to

return to work while he was receiving workers' compensation

benefits from AB. He does not point to any other provision in

the Plan or the CBA that would allow him to accrue credited

service for the time between October 25, 1998, and September 18,

2002, when he was not actively working, although he remained an

AB employee.1 

Therefore, it was reasonable for AB to conclude that during

time Crooker remained an employee but did not work he was not

engaged in "active work" within the meaning of the Plan. 

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2Crooker also argues that it was unreasonable for AB to

consider other cases where it had broadly interpreted the medical

leave provision to include both occupational and non-occupational

injuries. In this case, that interpretation did not affect the

outcome. Therefore, the court need not consider Crooker's

argument. 

11

Further, it was reasonable to conclude that merely remaining an

employee, while not working, does not count as "full-time

employment" for purposes of accruing credited service. Based on

those reasonable conclusions, AB's determination that Crooker did

not meet the age or credited service requirements when he ceased

active employment was also reasonable. Even if a form of

heightened scrutiny applied in this case, AB's determination

would meet that level of review. Consequently, neither AB's

interpretation of the Plan nor the decision to deny benefits was

arbitrary or capricious.2

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Conclusion

For the foregoing reasons, the plaintiff's motion for

judgment on the administrative record on his first claim

(document no. 59) is denied. The defendant's motion for judgment

on the administrative record as to the plaintiff's first claim

(document no. 60) is granted. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

May 29, 2007

cc: David A. Garfunkel, Esquire

Andrea K. Johnstone, Esquire

Paul B. Kleinman, Esquire

David W. McGrath, Esquire

Shenanne Ruth Tucker, Esquire

John-Mark Turner, Esquire

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