UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CURTIS NORMAN,

Plaintiff-Appellee,

v.

MICHAEL H. HOLLAND; MARTY D.

No. 96-2693

HUDSON; ELLIOT A. SEGAL; JOSEPH J.

STAHL, II, as trustees of the United

Mine Workers of America 1974

Pension Plan and Trust,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of West Virginia, at Huntington.

Joseph Robert Goodwin, District Judge.

(CA-95-440)

Argued: October 3, 1997

Decided: December 2, 1997

Before WIDENER and MOTZ, Circuit Judges, and MICHAEL,

Senior United States District Judge for the Western District of

Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Matilda Ann Brodnax, Senior Associate Counsel, Office

of the General Counsel, UMWA HEALTH AND RETIREMENT
FUNDS, Washington, D.C., for Appellants. Robert B. Wilson,

Charleston, West Virginia for Appellee. ON BRIEF : Glenda S.

Finch, Deputy General Counsel, Office of the General Counsel,

UMWA HEALTH AND RETIREMENT FUNDS, Washington, D.C.,

for Appellants.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

This case arises out of a denial of pension plan benefits to a mine

worker claiming to be totally disabled by a mine accident.

Background

Curtis Norman worked in the West Virginia coal mines as a shuttle

car operator until he injured his back in a mining accident on August

12, 1982.1 In 1983, the Social Security Administration (SSA) awarded

Mr. Norman Social Security Disability Insurance ("Disability Insurance") benefits based on a primary diagnosis of subphrenic abscess,2

which stemmed from gastric stapling surgery undergone by Mr. Norman in 1980. The SSA determined that the date of the onset of disability was August 14, 1982. The SSA terminated Mr. Norman's

Disability Insurance benefits, effective October 31, 1987, when the

subphrenic abscess improved. When Mr. Norman reapplied for benefits, the SSA granted a second period of disability commencing

November 1, 1987. At this point, the SSA relied on medical evidence

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1 Mr. Norman was also involved in a mining accident in 1980, but continued to work after that time.

2 A subphrenic abscess is an abscess occurring beneath the diaphragm.

4 J.E. Scmidt, M.D., Attorneys' Dictionary of Medicine and Word Finder

S-244 (1995).

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indicating "scoliosis of the back with chronic back pain, bursitis, borderline intellectual functioning and atypical depressive disorder." Pvt.

Ltr. Rul. 3 (October 15, 1990).

Mr. Norman then applied to the United Mine Workers of America

("United Mine Workers") 1974 Pension Plan ("Pension Plan") for a

disability pension.3 The appellants, Trustees of the United Mine

Workers Pension Plan ("Trustees"), acknowledged that Mr. Norman

was totally disabled because he received Disability Insurance benefits

for two periods of disability (August 14, 1982 to October 31, 1987;

November 1, 1987 forward), which periods the Trustees treated separately. By letter dated November 23, 1994, the Trustees granted Mr.

Norman a disability pension for the period of November 1, 1987 forward, but denied him a pension for the period of August 14, 1982 to

October 31, 1987. Letter from Kyu W. Lee, Assistant Director for Eligibility Services, United Mine Workers of America Health and

Retirement Funds, to Curtis Norman (Nov. 23, 1994); Claim Decision, Claim No. 000-00-6640 at 4 (November 8, 1994). The Trustees

based the denial on the determination by the SSA that Mr. Norman's

primary diagnosis in the first period was the subphrenic abscess

which did not result from a mining accident. Id. Mr. Norman submitted to the Trustees additional evidence indicating that the disability

was due to problems with his back and the subphrenic abscess. However, by letter dated June 2, 1995, the Trustees again denied Mr. Norman a pension for the period from 1982 to 1987, asserting that Mr.

Norman had still failed to demonstrate that the disability resulted

from a mining accident. Letter from Linda W. Fritz, Senior Manager,

Eligibility Processing, United Mine Workers Health and Retirement

Funds, to Curtis Norman (Jun. 2, 1995).

Mr. Norman filed suit on June 14, 1995 in the district court of the

Southern district of West Virginia. The district court held that the

denial of benefits was an abuse of discretion, granted summary judgment to Mr. Norman, and overturned the Trustee's decision to deny

benefits for the period from 1982 to 1987. This appeal ensued.

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3 An award of Disability Insurance is a prerequisite for application to

the United Mine Workers Pension Plan.

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Standard of Review

This court reviews de novo the grant of summary judgment by the

district court. Thus, this court reviews the decision of the Trustees

under the same standard used by the district court. Traditionally, district courts reviewed pension plan eligibility decisions of trustees for

support by substantial evidence and to determine that the decisions

were not arbitrary and capricious. LeFebre v. Westinghouse Elec.

Corp., 747 F.2d 197, 204 (4th Cir. 1984). The United States Supreme

Court has held, however, that review of plan trustees' decisions

should be de novo unless the benefit plan grants the plan administrators or fiduciaries discretionary authority to determine eligibility for

benefits. Firestone Tire & Rubber v. Bruch, 489 U.S. 101, 113

(1989). If plan administrators have such discretion, then a denial of

benefits is reviewed for abuse of discretion only. Boyd v. Trustees of

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

1989). The Fourth Circuit has held that the 1974 United Mine Workers Pension Plan confers "full and final" authority on the Trustees to

determine eligibility for benefits. Lockhart v. UMWA 1974 Pension

Trust, 5 F.3d 74, 77 (4th Cir. 1993); Boyd, supra, 895 F.2d at 59. See

also Hale v. United Mine Workers Health and Retirement Funds, 23

F.3d 899, 901 (4th Cir. 1994). Thus, the decision of the Trustees is

reviewed for abuse of discretion. Id.

While it remains unclear whether the Bruch abuse of discretion

standard is synonymous with the pre-Bruch arbitrary and capricious

standard used in the Fourth Circuit, a decision which was arbitrary

and capricious under pre-Bruch standards would be an abuse of discretion under the Bruch test. Richards v. United Mine Workers of

America Health and Retirement Fund, 895 F.2d 133, 135 (4th Cir.

1990), citing Boyd, supra, 873 F.2d at 60). Whether the Trustees

abused their discretion turns on whether their decision was supported

by substantial evidence in the record before them. LeFebre, 747 F.2d

at 204 (4th Cir. 1984). The court thus now reviews the decision of the

Trustees to deny Mr. Norman benefits for abuse of discretion.

Analysis

The case before the court arises under the Employee Retirement

Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461, under which

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any award of benefits "is governed in the first instance by the language of the plan itself." Lockhart, supra , 5 F.3d at 78 (4th Cir.

1993). The 1974 Pension Plan provides, in pertinent part, that:

Any Participant who (a) has less than 10 years of signatory

service prior to retirement and (b) becomes totally disabled

as a result of a mine accident ... shall, upon retirement ... be

eligible for a pension while so disabled. A participant shall

be considered 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.

United Mine Workers Pension plan, Article II, Part D. The Fourth

Circuit has interpreted "as a result of a mine accident" to mean that

the total disability must have been:

proximately caused by the mine accident. That is, if the

plaintiff was injured in a mine accident and that injury,

whether in combination with a previous or subsequent condition, is substantially responsible for plaintiff's inability to

perform his job and for whatever medical and vocational

reasons he is unable to perform an alternative job, then his

total disability results from a mine accident.

Boyd, supra, 873 F.2d at 59, quoting Robertson v. Conners, 848 F.2d

472, 475 (4th Cir. 1988), quoting Horn v. Mullins, 498 F.Supp. 1197,

1200 (W.D. Va. 1980). The Trustees in the instant case concede that

Mr. Norman was totally disabled between 1982 and 1987. They

assert, however, that, for the period between 1982 and 1987, Mr. Norman's disability did not result from a mine accident and that the district court erred in finding an abuse of discretion on their part.

For the following three reasons, we hold that the district court correctly determined that the Trustees abused their discretion in denying

Mr. Norman a pension under the United Mine Workers 1974 Pension

Plan. First, the substantial evidence in the record indicates that Mr.

Norman's disability was proximately related to a mine accident and

proximate causation is all the Fourth Circuit has required to qualify

a miner for a disability pension under the 1974 Pension Plan. A miner

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may qualify for a disability pension if his disability is the result of a

mine injury "in combination with a previous or subsequent condition." Boyd, supra, 873 F.2d at 59, quoting Horn v. Mullins, 498

F.Supp. 1197, 1200 (W.D. Va. 1980).

The evidence in this case indicates that the mine accident acted in

combination with Mr. Norman's other conditions to render him

unable to work. Mr. Norman underwent stomach stapling surgery in

April 1980; sustained an injury to his middle back in a shuttle car

accident in the mines in September 1980; and received periodic medical treatment between 1980 and 1982 for recurrent dorsolumbar and

lumbar fibrositis, a chronic subphrenic abscess, and fever; yet he

always returned to work until the mine accident on August 12, 1982.

The subphrenic abscess was diagnosed in December of 1981, yet the

SSA determined August 14, 1982 as the date of the onset of disability.

In the Notice of Disability Cessation, the SSA indicated a primary

diagnosis of gastric stapling and subphrenic abscess, and a secondary

diagnosis of lumbar spine strain, suggesting that both conditions contributed to Mr. Norman's disability. Notice, Claim Number

000-00-6640 (Aug. 26, 1987).

Moreover, two doctors noted the difficulty of assessing Mr. Norman's condition because of the interaction between the gastric/subphrenic problems and the lumbar problems. Dr. Robert B.

Mattill stated, on April 29, 1983, "It is extremely difficult if not

impossible to evaluate [Mr. Norman's] low back condition at this

time because of current active treatment for his abdominal condition

and a drain in his left lower abdomen." Letter of Robert B. Mattill,

M.D., to Linda Perry Bowman, Claims Management Division, Workers Compensation Fund, Medical Division. Similarly, Dr. Hernandez

indicated in a conversation with Lisa Behr, a Disability Examiner for

the Disability Determination Section of the West Virginia Division of

Vocational Rehabilitation, that, "[i]t is difficult to assess Mr. Norman." (April 6, 1983). Mr. Norman suffered from numerous physical

ailments. The evidence indicates that several physical and mental conditions factored into Mr. Norman's inability to work. Under Boyd,

plaintiff's injury need only be, "whether in combination with a previous or subsequent condition, ... substantially responsible for plaintiff's

inability to perform his job." It appears to this court that the weight

of the evidence indicates that the mine accident, combined with prior

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and subsequent ailments, prevented Mr. Norman from returning to

work.

Second, the Trustees failed to consider all of the evidence before

them. Instead, they incorrectly relied on the diagnosis of the SSA for

social security disability benefits to make the their own decision as to

the pension award. Chicarelli v. UMWA Health and Retirement Funds

indicates that the SSA's finding of disability is only "a salient bit of

evidence." 943 F.2d 457, 462 n.6 (4th Cir. 1991). The finding of causation lies with the Fund, not the SSA. Id. The district court properly

noted, "[T]he Trustees misunderstand their responsibility here. They

have limited their inquiry to determining whether the accident caused

the specific disability noted by SSA in the SSA's determination of eligibility for SSDI benefits." Norman v. Holland, No. 3:95-0440 at 11

(September 25, 1996). The Trustees stated in their decision on Mr.

Norman's claim: "Social Security disability benefits granted for the

closed period August 14, 1982 through October 31, 1987 were based

upon subphrenic abscess.... Based on this information, I am unable to

establish the existence of a causal link between Mr. Norman's mining

accident and his disability for the closed period August 14, 1982

through October 31, 1987." Claim Decision No. 000-00-6640, supra,

at 4. The Trustees' decision to deny benefits was an abuse of discretion because it limited its inquiry too narrowly.

Third, the award of a disability pension for the period after November 1, 1987 reveals the inconsistency of the Trustees denial of a disability pension for the 1982 to 1987 period. The Trustees granted the

pension for the post-1987 period based on a finding by the Pension

Plan's Disability Pension Analyst of a causal link between the 1982

accident and Mr. Norman's dorsolumbar fibrositis, scoliosis, and

depression in 1987. Claim Decision, Claim No. 000-00-6640 at 4,

supra. In the same letter, the Trustees indicate that Dr. Hernandez

treated Mr. Norman for dorsolumbar fibrositis; that Dr. Hernandez

noted residual effects from prior back injury; that Dr. Andrews of the

West Virginia Disability Determination Service noted that Mr. Norman's stress-linked depression "in combination with the physical

sequela of his occupational injuries render him disabled;" and that Dr.

Whelan, a psychiatrist, found that Mr. Norman's depression was

"brought about and sustained by chronic pain, due to the combined

effects of his injuries and medical conditions." Id. Thus, for the same

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symptoms and problems, the Trustees make the strange finding that

there was no causal link for the first five years after the accident but,

in effect, that a link then developed in the sixth year. Such strained

analysis falls into the heartland of caprice and, therefore, abuse of discretion.

Conclusion

For these reasons, the decision of the Trustees to deny Mr. Norman

a pension under the United Mine Workers Pension Plan was an abuse

of discretion which the district court properly overruled in its thorough opinion. The opinion below is, therefore,

AFFIRMED.

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