Jani v. Bert Bell/Pete Rozelle NFL Player Retirement Plan

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2386
SUNNY JANI, Administrator of the Estate of
Michael L. Webster, deceased,
Plaintiff - Appellee,
versus
THE BERT BELL/PETE ROZELLE NFL PLAYER
RETIREMENT PLAN; THE NFL PLAYER SUPPLEMENTAL
DISABILITY PLAN,
Defendants - Appellants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CA-04-1606-WDQ)
Argued: September 18, 2006 Decided: December 13, 2006
Before WILKINSON and DUNCAN, Circuit Judges, and Henry F. FLOYD,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by unpublished opinion. Judge Duncan wrote the opinion,
in which Judge Wilkinson and Judge Floyd joined.
ARGUED: Edward Arthur Scallet, GROOM LAW GROUP, CHARTERED,
Washington, D.C., for Appellants. Cyril Vincent Smith, ZUCKERMAN
SPAEDER, L.L.P., Baltimore, Maryland, for Appellee. ON BRIEF:
Douglas W. Ell, GROOM LAW GROUP, CHARTERED, Washington, D.C., for
Appellants. Sean P. Vitrano, William K. Meyer, ZUCKERMAN SPAEDER,
L.L.P., Baltimore, Maryland; Robert P. Fitzsimmons, Wheeling, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DUNCAN, Circuit Judge:
Mike Webster, the Hall of Fame center best known for anchoring
the offensive line of the Pittsburgh Steelers professional football
team from 1974 to 1988, developed brain damage as a result of the
multiple head injuries he suffered as a player. He was awarded
degenerative disability benefits by the administrator (the “Board”)
of the NFL’s retirement plans.1 The Board acknowledged that
injuries sustained during his football career had caused Webster
eventually to suffer total and permanent mental disability in
September 1995, four years after his retirement, but denied him the
more lucrative benefits reserved for those whose disabilities begin
while they are still actively playing football.
Webster’s estate sued the retirement plans under the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C.
§§ 1001-1461 (2000), claiming that the Board abused its discretion
in setting Webster’s total disability date at September 1995. The
district court ruled that the Board first abused its discretion by
ignoring the unanimous medical evidence that established March 1991
as the onset date for Webster’s total and permanent disability, and
1
The NFL enrolls all players in the Bert Bell/Pete Rozelle NFL
Retirement Plan (the “Plan”) and the NFL Player Supplemental
Disability Plan (together, the “Plans”). J.A. 98 (Plan art. 2).
The operative language determining eligibility for benefits is
found in the Plan. The NFL Player Supplemental Disability Plan, in
contrast, operates to augment the size of benefits awards after
eligibility has been established under the Plan.
3
second in refusing to toll the Plan’s limitations period for filing
a claim for disability. The Plans2 appealed both rulings.
While recognizing that the decisions of a neutral plan
administrator are entitled to great deference, we are nevertheless
constrained to find on these facts that the Board lacked
substantial evidence to justify its denial here. In particular,
the Board ignored the unanimous medical evidence, including that of
its own expert, disregarded the conclusion of its own appointed
investigator, and relied for its determination on factors
disallowed by the Plan. Because we also find that Webster’s mental
incapacity should have tolled the limitations period, we affirm the
decision of the district court.
I.
A.
“Iron Mike” Webster played center in the National Football
League (“NFL”) for the Pittsburgh Steelers from 1974 to 1988,
collecting four Super Bowl rings during that era. J.A. 628-29.
After becoming a free agent, Webster started for the Kansas City
Chiefs in 1989 and played as a backup center in 1990 before
retiring from active play in March 1991. J.A. 629. In total,
2
Because the Plans, not the Board, are the Defendants in this
case, we refer to the Board when discussing Webster’s application
process and to the Plans when discussing party actions during
litigation.
4
Webster played 245 games, the most ever by a center, and at one
point played six years without missing a single offensive down.
J.A. 622-24. Webster was designated an All-Pro nine times during
his career and was inducted into the Pro Football Hall of Fame in
1997. Id.Webster endured numerous blows to the head as a center. J.A.
622. The center is the player in the middle of the offensive line
and is responsible for snapping the football between his legs to
the quarterback to begin each offensive play. Defensive players
are permitted to rush at the quarterback as soon as the football is
snapped. The center is particularly vulnerable because he must
right himself after the snap to protect the quarterback from the
oncoming defensive rush. Of particular danger to offensive linemen
in Webster’s era was the “head slap” technique, in which defensive
linemen would begin their quarterback rush by striking the
offensive linemen on the sides of the helmet to daze them. J.A.
676. Though made illegal by an NFL rule change in 1977, use of the
head slap and other violent techniques by defensive linemen
continued. J.A. 683-84.
After playing sixteen years and sustaining multiple
concussions, Webster retired from football in March 1991. His
remaining eleven years of life were plagued by a series of failed
business ventures and stunted career attempts. In fact, the
5
parties agree that none of these attempts at gainful employment
succeeded. J.A. 695.
First, Webster was hired to work as a football analyst for NBC
in July 1991. J.A. 629. After auditioning in two preseason games,
he moved back to Wisconsin and did not continue this work. J.A.
647. Webster also tried his hand as an investor. In May 1992, for
example, he invested in “Webster Asset Management, Ltd.” and in
“Terra Firma Development Trust,” which owned real estate in
Pittsburgh. J.A. 479, 629.
Webster made a number of representations about his employment
status in 1993 and 1994. For example, he told a doctor in May 1993
that he was working “as a financial investment advisor and real
estate manager.” J.A. 266. He told another doctor during a
hospital stay in June 1993 that he was running “several self-owned
business [sic] in Pittsburgh,” J.A. 277, and that he was part-owner
of Olympia Steel, J.A. 294. In August 1993, he applied for a
credit card, calling himself the manager of Distinctively Lazer for
the previous six months and representing that he earned $80,000 per
year. J.A. 458. In September 1993, Webster told a doctor that he
was employed full-time. J.A. 264. In October 1993, Webster and
two others registered the name “Tins, Totes and Tees” for a
business to conduct retail sales. J.A. 630.
It is undisputed, however, that none of these business
ventures generated income. Tax records, social security records,
6
and Webster’s own affidavit show that his only income during 1991-
1993 consisted of his final payments from the Chiefs in 1991,
deferred payments from the Steelers in 1992, and fees of $10,000
for card-signing and appearances in 1992 and 1993. J.A. 704-49.
In fact, an associate of Webster’s at Distinctively Lazer told the
Board’s investigator, “I think there was something mentally wrong
with Mike. His business thinking was very poor.” J.A. 700-01.
Webster returned to football in 1994 as a strength and
conditioning coach for the Chiefs. The Assistant General Manager
of the Chiefs indicated that Webster was hired “as a favor” and
that he was not “doing very well during this time period and . . .
may have been living in his car.” J.A. 699. Webster later averred
that as a strength and conditioning coach he had no “specific
coaching duties but was there supposedly to help out if necessary.”
J.A. 709. In November 1994, Webster showed up at a friend’s house,
stating that he “was tired of sleeping in his car.” J.A. 652. The
friend, citing Webster’s “strange habits,” allowed him to stay for
a few months. J.A. 653. Webster left the coaching position at
some point in 1995, having earned a total of about $30,000 from the
Chiefs for his services. J.A. 409. Webster’s former teammates
told the Board’s investigator that beginning in 1995 through 1997,
Webster did not appear well, with some “characterizing his behavior
as strange or paranoid.” J.A. 518.
7
Webster was mostly unemployed after 1995, earning essentially
nothing until his death in 2002. The Board’s investigator
summarized Webster’s post-retirement history by noting that he
found no “evidence that any of [his business ventures] succeeded.”
J.A. 519. He concluded, “It is unclear whether any of these
ventures were successful and whether or not Mr. Webster’s health
has affected his ability to operate these business ventures.” J.A.
464.
Webster had contacted the Board on five occasions in 1995 and
1996, sometimes only days apart, each time seeking an application
for filing a disability claim. J.A. 206-210, 215, 218. Not one of
these applications was ever completed. Webster was diagnosed in
1998 with brain damage resulting from multiple head injuries he
incurred while playing football. In the spring of 1999, Webster
finally completed an application for disability benefits under the
NFL retirement plans. We now examine the language of those plans.
B.
The Plans provide for four types of benefits for players who
suffer a total and permanent (“T&P”) disability as a result of
football, two of which are relevant here. An applicant may qualify
for “Active Football” benefits if “the disability(ies) results from
League football activities, arises while the Player is an Active
Player, and causes the Player to be totally and permanently
8
disabled ‘shortly after’ the disability(ies) first arises.” J.A.
110 (Plan § 5.1(a)). A lesser benefit, styled “Football
Degenerative,” is available provided that “the disability(ies)
arises out of League football activities, and results in total and
permanent disability before the later of (1) age 45, or (2) 12
years after the end of the Player’s last Credited Season.” J.A.
110 (Plan § 5.1(c)).
Common to both types of benefit, then, is the requirement that
an applicant prove that he suffered a T&P disability as a result of
playing football. An applicant “will be deemed to be totally and
permanently disabled if the Retirement Board finds that he has
become totally disabled to the extent that he is substantially
prevented from or substantially unable to engage in any occupation
or employment for remuneration or profit.” J.A. 111 (Plan § 5.2).
However, “[a] Player will not be considered to be able to engage in
any occupation or employment for remuneration or profit . . .
merely because such person is employed by the League or an Employer
. . . or is employed out of benevolence.” Plan § 5.2 (J.A. 112)
(emphasis added); see also J.A. 93 (Plan § 1.13) (defining
“Employer” as “a member Club of the League”). The Board may
require an applicant “to submit to an examination by a competent
physician or physicians selected by the Retirement Board and may be
required to submit to such further examinations as, in the opinion
of the Retirement Board, are necessary to make an adequate
9
determination respecting his physical or mental condition.” J.A.
112 (Plan § 5.2).
To be eligible for the higher Active Football benefits, an
applicant must also show that he became disabled while an Active
Player, which disability became T&P “shortly after” it first arose.
Each of these elements is defined further in the Plan. A player
remains an “Active Player” upon retirement until the July 15
following his retirement or the first day of the next preseason
training camp, whichever is later. See J.A. 91 (Plan § 1.1). An
applicant becomes T&P disabled “shortly after” the disability first
arises for purposes of the definition of Active Football benefits
according to a three-tiered scheme of presumptions:
A player who becomes totally and permanently disabled no
later than six months after a disability(ies) first
arises will be conclusively deemed to have become totally
and permanently disabled “shortly after” the
disability(ies) first arises, . . . and a Player who
becomes totally and permanently disabled more than 12
months after a disability(ies) first arises will be
conclusively deemed not to have become totally and
permanently disabled “shortly after” the disability(ies)
first arises . . . . In cases falling within this six-
to twelve-month period, the Retirement Board will have
the right and duty to determine whether the “shortly
after” standard is satisfied.
J.A. 111 (Plan § 5.1).
Even if an applicant otherwise would succeed in earning Active
Football or Football Degenerative benefits from the onset date of
his T&P disability, a limitations provision, added to the Plan and
effective for claims received on and after November 1, 1998, may
10
prevent him from recovering certain time-barred benefits.
Specifically:
[N]o total and permanent disability benefit . . . will be
payable with respect to any month or other period of time
that precedes by more than forty-two (42) months the date
the Plan Director first receives a written application or
similar letter requesting such benefit, provided that
such written application or similar letter begins the
administrative process that results in the award of the
benefit.
J.A. 151 (Plan § 5.7). Section 5.7 also includes a tolling
provision, however:
The forty-two month limitations period in each of the
above sentences will be tolled for any period of time
during which such Player is found by the Retirement Board
to be physically or mentally incapacitated in a manner
that substantially interferes with the filing of such
claim.
Id.
C.
Webster applied for Active Football benefits and, in the
alternative, Football Degenerative benefits in the spring of 1999.
In support of his claim, Webster submitted his post-retirement
medical records and the reports of Dr. Fred Krieg, Dr. James
Vodvarka, and Dr. Jonathan M. Himmelhoch.
Webster’s medical records revealed that he sought medical
treatment for certain physical ailments between March 1991 and
September 1995. In late 1992, for example, Webster began to suffer
from an “extensive lymphedema,” or fluid collection resulting in
11
swelling, “involving both lower extremities.” J.A. 273, 276. In
May 1993, a CT scan revealed a likely lymphoma, or cancer of the
lymph nodes. J.A. 274-75. Webster checked into a hospital in June
1993 under the care of Dr. Stanley Marks, a hematologist and
oncologist. A treatment regimen orchestrated by Dr. Marks led to
improvement in Webster’s physical condition over the subsequent
several months. J.A. 264, 269-72.
Webster then saw Dr. Robert Conn, a cardiovascular specialist,
for an echocardiogram in January 1994. J.A. 295. Dr. Conn noted
in a contemporaneous letter that “Mr. Webster is capable of most
physical activities that would be relevant to his age and
recreational desires.” J.A. 295-96 (emphasis added).
Webster followed up with Dr. Marks on September 5, 1996. Dr.
Marks noted that Webster’s “life has really deteriorated recently
and he is living out of his car. His income has been nominal. He
has major problems with depression and obsessive compulsive
behavior and is currently being treated with Ritalin and Paxil.”
J.A. 265.
Later that day, Webster met with Dr. Jerry Carter, a
psychiatrist, because some of his former teammates had “encouraged
him to have an evaluation” after Webster was found sleeping in a
local train station. Webster told Dr. Carter that he had been
living in hotels and in his car for the previous three-and-one-half
years. Webster also insisted that he need only overcome his
12
reclusive tendencies and then his mood and ability to function
“would improve considerably.” Webster recounted a tumultuous
childhood, a history of low self-esteem, and that he was living
only for his periodic visits with his children in Wisconsin. J.A.
307.
Webster then saw Dr. Vodvarka, an osteopath and practitioner
of internal medicine, in late 1997. J.A. 300-03. Dr. Vodvarka
recognized that Webster might be suffering from post-concussion
syndrome. J.A. 302.
Webster retained an attorney, Mr. Robert P. Fitzsimmons, to
assist him in applying for disability benefits. Fitzsimmons
referred Webster to Dr. Krieg, a psychologist, to determine whether
Webster was disabled. In November 1998, Dr. Krieg diagnosed
Webster with brain damage--that is, dementia resulting from his
football-related head traumas. J.A. 227. Dr. Krieg observed that
“although it is [to] Mr. Webster’s advantage to have ‘done poorly’
on this evaluation, he really tried throughout the interview to
make himself look as good as possible, covering up certain
information.” J.A. 225. Dr. Krieg concluded that Webster “had
become disabled to the extent that he is substantially unable to
engage in any occupation or employment at this time.” J.A. 232.
Webster was reevaluated by Dr. Vodvarka, who opined in an open
letter dated March 1999 that Webster “would have been able to prove
total disability at the time he was released by the Pittsburgh
13
Steelers” because of his dementia and cognitive dysfunction. J.A.
253, 257. Dr. Vodvarka linked Webster’s mental ailments to the
head injuries suffered during his years of football, and concluded
that Webster “will never be able to engage in any occupation or
employment for remuneration or profit.” J.A. 259.
Webster also met with Dr. Himmelhoch, a psychiatrist, in a
series of six sessions beginning in March 1999. J.A. 315. Dr.
Himmelhoch opined, in a letter to the Plans dated June 22, 1999,
that Webster suffered from “traumatic or punch drunk
encephalopathy3” resulting from football, leaving him totally and
permanently disabled. J.A. 317-20.
Finally, Webster submitted an affidavit stating that he had
been unable to perform any productive work for the Chiefs during
his coaching tenure in 1994 and 1995 because of the crippling
nature of his brain damage. J.A. 709. He explained that “[s]ince
completing my football playing years, I have been unable to obtain
or keep any type of meaningful and/or gainful employment because of
the problems I have experienced from my brain injury.” J.A. 710.
Responding to Webster’s application, the Board required
Webster to be evaluated by a neurologist of its choosing, Dr.
Edward Westbrook, on June 21, 1999, pursuant to Plan section 5.2.
On a form provided by the Board for his completion, Dr. Westbrook
3
Encephalopathy literally means “brain disease.” Random House
Webster’s Unabridged Dictionary 640 (2001).
14
answered the question “When did present disability occur?” with
“3/91 or before.” J.A. 362. In an accompanying letter dated
October 28, 1999, Dr. Westbrook indicated that though Webster
offered only a “poor history,” he was able to determine that
Webster was “completely and totally disabled.” J.A. 367.
On the same date that Dr. Westbrook’s report issued, the Board
awarded Webster Football Degenerative benefits prospectively
without setting an onset date for his T&P disability and tabled
Webster’s application for Active Football benefits “to allow [a]
neutral physician to review additional medical information and make
[a] final report.” J.A. 374.
Webster appealed the decision, which appeal was denied on May
8, 2000 by the Board. J.A. 397-99. First, the Board diminished
the significance of its own medical expert’s report because the
report only indicated when Webster became disabled, not when he
became totally and permanently disabled. Second, the Board
discounted Dr. Vodvarka’s assessment that Webster was totally and
permanently disabled as of 1988. Because Webster played two more
seasons after 1988 with the Chiefs, the Board concluded that Dr.
Vodvarka must have misinterpreted the Plan’s definition of “T&P
disability.” Finally, the Board chided Webster for failing to
submit sufficient evidence showing that he did not work from 1991
onward. J.A. 399.
15
Webster appealed again. This time, to respond to the Board’s
concerns, Webster submitted supplemental reports from Drs. Krieg
and Himmelhoch, each of whom concluded, to a reasonable degree of
professional certainty, that Webster was totally and permanently
disabled as of March 1991. J.A. 580, 608. Webster also submitted
a report from Dr. L. Charles Kelly, an osteopath, setting Webster’s
T&P disability date at March 1991. J.A. 422-25.
To strengthen the appeal, Webster’s attorney asked Dr.
Westbrook, the Board’s neutral physician, to opine as to the onset
date of Webster’s T&P disability. Dr. Westbrook wrote to the
Board:
It is clear that the patient had significant trouble
playing football in 1990 and officially retired in 1991.
It would appear on that basis that he was completely and
totally disabled as of the date of his retirement and was
certainly disabled when he stopped playing football
sometime in 1990. . . . He has remained completely and
totally disabled for any occupation beginning in
approximately 1990 and will not be expected to improve.
J.A. 565.
The Board responded on October 31, 2000, by again requesting
additional documentation to prove Webster’s lack of income during
the critical 1991 to 1996 period. Webster submitted records from
the Internal Revenue Service, the Social Security Administration,
the Commonwealth of Pennsylvania, the Kansas City Chiefs and the
Pittsburgh Steelers, corroborating his assertion that he earned
nothing after his retirement other than his coaching salary from
the Chiefs. J.A. 714-49.
16
Not satisfied with this response, the Board also hired a
private investigator to delve into the details of Webster’s
employment history. The investigator found evidence that Webster
was nominally involved in various business ventures as detailed
above, but concluded that he “was unable to find any evidence that
any of them succeeded.” J.A. 695. While the investigation was
underway, Webster died of a heart attack, on September 24, 2002.
The Board finally denied Webster’s application for Active
Football benefits on March 17, 2003, and set the onset date for his
T&P disability at September 1, 1996. In setting this date, the
Board gave the following reasons: (1) Webster’s work as a
broadcaster for two games in 1991, his series of failed business
ventures from 1992 to 1994, and his work as an assistant coach for
the Chiefs in 1994 and 1995 demonstrated his ability “to engage in
any occupation . . . for remuneration or profit”; and (2) the
medical evaluation in 1996 by Dr. Marks stating that Webster’s life
“has really deteriorated recently” implies that Webster was not
mentally disabled during his 1993 visit to Dr. Marks. J.A. 555.
The Board made no reference to either the findings of its own
medical expert or the other medical evidence that expressly set the
onset date of Webster’s T&P disability at March 1991.
Webster’s estate appealed the Board’s March 2003 decision. In
July 2003, the Board affirmed by letter its previous determination,
disavowing the medical reports of Dr. Krieg, Dr. Vodvarka, Dr.
17
Himmelhoch, Dr. Kelly, and its own Dr. Westbrook because so much
time had passed between 1991 and 1997, when the first of these
doctors evaluated Webster for brain damage. J.A. 612-16. Noting
that these assessments were not performed “contemporaneous[ly] with
the suggested onset date” of Webster’s T&P disability, the Board
deemed such ex post pronouncements as “speculative and conclusory.”
J.A. 614-15.
The Board also cited for the first time the 42-month
limitation provision in Plan section 5.7 that disallows
establishment of an onset date for T&P disability earlier than 42
months prior to the filing of the application, unless the
applicant’s mental incapacity substantially interfered with the
filing of the claim. J.A. 615. Finding that Webster had offered
no proof of “substantial interference,” the Board found that the
limitations provision barred the recovery of any benefits prior to
January 1, 1996.4 J.A. 616. This letter of denial marked the
Board’s final administrative decision.
Webster’s estate filed an ERISA complaint in the United States
District Court for the District of Maryland, seeking money damages
4
The Board’s denial letter referred to January 1, 1995 as the
retroactivity cutoff date. Presumably, the Board intended to
utilize the limitations provision to bar recovery of any benefits
prior to January 1, 1996.
In any case, the parties disagree on which date Webster filed
his application for purposes of applying the limitations period.
Because we hold that the 42-month rule was tolled here, however,
the exact application date is of no moment.
18
and declaratory relief under § 1132(a)(1)(B) and (a)(3). Both
parties moved for summary judgment. The district court granted the
Plaintiff’s motion, but denied the Plans’ motion.
In finding that the Board abused its discretion by denying
Webster Active Football benefits, the district court noted that
“[e]ach specialist who examined Webster’s neurological status
concluded that he was totally and permanently disabled under the
terms of the Plan by March 1991.” Jani v. Bert Bell/Pete Rozelle
NFL Player Ret. Plan, No. 04-1606, 2005 WL 1115250, at *6 (D. Md.
April 26, 2005). The court further found the lack of diagnosis of
mental impairment in 1993 by Dr. Marks, an oncologist, to be
insufficient to provide “substantial evidence” to justify denial of
Active Football benefits to Webster. Id. The court also cursorily
held that because “Webster had been incapacitated by brain damage
since 1991, the Plan’s limitations period does not apply to his
disability claim.” Id.The Plans timely appealed, arguing that the Board’s denial of
Active Football benefits was a reasoned exercise of discretion
supported by substantial evidence and, in the alternative, that the
Plan’s limitations provision barred recovery of benefits prior to
January 1, 1996. We consider each argument in turn.
19
II.
A.
Because the Plans grant the Board “full and absolute
discretion, authority and power to interpret . . . the Plan,” J.A.
121 (Plan § 8.2), we review the Board’s decision under the
deferential abuse of discretion standard5 rather than de novo. See
Smith v. Cont’l Cas. Co., 369 F.3d 412, 417 (4th Cir. 2004) (citing
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989)).
The Board’s discretion, however, is not unfettered. Its exercise
must be supported by substantial evidence. Bernstein v.
CapitalCare, Inc., 70 F.3d 783, 788 (4th Cir. 1995).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
5
The Plans seem to argue for an even higher level of deference
than that typically afforded ERISA fiduciaries, because of the
knowledge and skill required to assess football injuries in
particular. See, e.g., Appellants’ Br. at 45 (“The Board believes
that the complexity of the Plan here and the unique medical and
occupational issues faced by professional football players present
special challenges to a decision maker, and that experience with
meeting those challenges is important.”). To be sure, special
knowledge is indeed helpful in making benefits determinations in
football, as it is in any industry. The deferential abuse of
discretion standard obtains in part precisely because courts cannot
have expertise in every industry. See Berry v. Ciba-Geigy, 761
F.2d 1003, 1006 (4th Cir. 1985) (“[T]he standard exists to ensure
that administrative responsibility rests with those whose
experience is daily and continual, not with judges whose exposure
is episodic and occasional.”). That our knowledge of football-
related disability pales in comparison to the Board’s knowledge,
however, does not militate to bestowing a higher standard than
abuse of discretion. Instead, the Board is entitled to the same
abuse of discretion review afforded to knowledgeable fiduciaries of
any ERISA plan.
20
Richardson v. Perales, 402 U.S. 389, 401 (1971) (noting that this
definition obtains widely “in varying statutory situations”). It
is thus “more than a mere scintilla,” id., but “less than the
weight of the evidence,” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607,
620 (1966).
Because a fiduciary must present substantial evidence to
justify a denial of benefits, it logically follows that a fiduciary
appears to abuse its discretion when, in denying benefits, it
ignores unanimous relevant evidence supporting the award of
benefits. Cf. Pikulas v. DaimlerChrysler, 397 F. Supp. 2d 883,
892-93 (E.D. Mich. 2005) (finding an abuse of discretion when a
fiduciary denied benefits despite the unanimous evidence of three
examining doctors agreeing that the claimant was unable to work);
Giannone v. Metro. Life Ins. Co., 311 F. Supp. 2d 168, 177-78 (D.
Mass. 2004) (finding an abuse of discretion when a fiduciary denied
benefits, citing the opinion of a non-examining physician, which
was contrary to the unanimous opinion of several treating
physicians, the fiduciary’s own investigator, and the claimant’s
medical history). Similarly, a plan fiduciary abuses its
discretion by crediting a doctor’s earlier, incomplete evaluation
but ignoring the same doctor’s later, more comprehensive opinion.
Donovan v. Eaton Corp., Long Term Disability Plan, 462 F.3d 321,
329 (4th Cir. 2006).
21
We have required benefits administrators to follow unanimous
evidence in other contexts in which we employ an abuse of
discretion standard as well. For example, in Stawls v. Califano,
596 F.2d 1209 (4th Cir. 1979), a case involving a social security
disability benefits claim, the administrator denied the applicant’s
claim for T&P disability benefits because it found that she was
unable to prove that her T&P disability began prior to 1962 and was
continuously present thereafter. Id. at 1213. The administrator
ignored the medical opinion of one psychiatrist that the
applicant’s schizophrenia was indeed continuously disabling, rather
than intermittently so, and the medical opinion of another
psychiatrist that the disability began prior to 1962. The second
psychiatrist, though he had treated the applicant since 1954, had
lost his contemporaneous notes. He nevertheless opined in 1976
that the applicant had been disabled prior to 1962. The applicant
challenged the denial of benefits in court, and this court
ultimately remanded the dispute to the benefits administrator,
demanding an explanation for “why the uncontradicted evidence of
the psychiatrists should not suffice to afford recovery.” Id.Thus, even though the second psychiatrist’s ex post and
undocumented opinion might have been less weighty were there
conflicting medical opinions, it remained uncontradicted and could
not therefore be ignored. See id.; see also Martin v. Sec’y of
Dept. of Health, Ed. and Welfare, 492 F.2d 905, 907-08 (4th Cir.
22
1974) (holding in a social security disability benefits case that
the mere “opinion evidence of the non-examining Social Security
doctor” is not “substantial enough to sustain [a denial of
benefits] when (a) the claimant’s subjective evidence of
disability, (b) the expert medical opinion of examining physicians,
(c) claimant’s vocational history, and (d) the objective medical
facts, are all to the contrary”).
Similarly, our jurisprudence under the Black Lung Benefits
Act, 30 U.S.C. §§ 901-945 (2000), allows a claimant to establish
total disability by offering uncontradicted reasoned medical
evidence. See, e.g., Milburn Colliery Co. v. Hicks, 138 F.3d 524,
529 (4th Cir. 1998) (citing 20 C.F.R. § 718.204(c)(4) (1997)). It
is only “[i]f the evidence is contradicted [that] we must determine
whether the ALJ conducted an appropriate analysis of the evidence
to support his conclusion.” Hicks, 138 F.3d at 529; see also Curry
v. Beatrice Pocahontas Coal Co., 67 F.3d 517, 521 (4th Cir. 1995)
(finding that three medical opinions did not constitute
“substantial evidence” sufficient to justify a denial of benefits
because the doctors had not opined “without equivocation” on the
dispositive question--whether the claimant “suffer[ed] no
respiratory or pulmonary impairment of any kind”).6
6
We recognize that the standards and processes governing cases
involving black lung and social security disability benefits are
different from those that apply under ERISA. We refer to this
parallel jurisprudence only to show our consistent treatment of
unanimous medical evidence in other statutory contexts.
23
B.
With the foregoing guidance as to what constitutes substantial
evidence in mind, we turn to a consideration of the facts on which
the Board here based its decision. We do so mindful of the fact
that the Board has the discretion to define “T&P disability” in any
reasonable and consistent manner. See J.A. 121 (Plan § 8.2(a));
Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan, 201
F.3d 335, 342 (4th Cir. 2000).
The Plans proffer two principal justifications for the Board’s
denial of Active Football benefits. First, the Plans argue that
Webster could not possibly have been “substantially unable to
engage in any occupation or employment for remuneration or profit,”
J.A. 111 (Plan § 5.2), because he was actually employed between
1991 and 1996. The Plans cite Webster’s stint as a broadcast
analyst for two games in 1991, his work as a strength and
conditioning coach for the Chiefs in 1994-95, and his ongoing self-
employment from 1991 to 1996.
Not one of these ostensible occupations provides substantial
evidence that Webster was not “substantially unable to engage in
any . . . employment” between 1991 and 1996. First, Webster need
only show that he suffered T&P disability “shortly after” his
disability first arose upon retirement. Thus, his two-game
dalliance ending within six months of retirement does not disprove
that he suffered T&P disability “shortly after” retirement. See
24
J.A. 111 (Plan § 5.1). In any case, the medical evidence suggests
that his stunted broadcasting career was in fact merely an audition
that failed as a result of his diminished cognitive capabilities.
Second, Webster’s coaching position with the Chiefs is excluded
from Board consideration by the plain language of the Plan itself.
See J.A. 112 (Plan § 5.2). Section 5.2 provides, “A Player will
not be considered to be able to engage in any occupation or
employment for remuneration or profit . . . merely because such
person is employed by an Employer,” that is, by a team, “or is
employed out of benevolence.” Id. Because Webster was “employed
by an Employer,” and, moreover, was “employed out of benevolence,”
the Plan twice deprives Webster’s brief coaching spell of any
conclusive value. Finally, Webster’s occasional representations in
the early 1990s that he was gainfully employed and that his various
sinecures demanded his “full-time” attention evaporate in the
absence of any evidence to show that Webster ever earned a single
dollar from or contributed anything other than his name to these
enterprises. “[U]nable to find any evidence that any of them
succeeded,” the Board’s own investigator refutes its conclusion
that Webster was able to work after retirement. See J.A. 695.
Second, the Plans direct us to the evaluations of Webster by
various doctors during the critical period that tended to show he
was “generally in good health.” See Appellants’ Br. at 46. Not
one of these doctors, however, was either asked, or for that matter
25
was qualified, to comment on Webster’s mental health. That a
cardiologist reported, for example, that “Webster is capable of
most physical activities that would be relevant to his age and
recreational desires” proves nothing regarding the state of
Webster’s brain damage at the time. See J.A. 285 (emphasis added).
Webster has never argued before the Board, nor does his estate
argue now, that he was unable to work because of a physical
disability.
The Plans lean heavily on the reports of Dr. Marks in
particular to prove that Webster was mentally fit in 1993 and 1994,
but by September 1996 had suffered a drastic reduction in mental
wellness. In examining Webster for pain in his armpit in 1993, Dr.
Marks, a hematologist and oncologist, did not record any
observations about Webster’s mental state. However, in 1996, Dr.
Marks reported that Webster’s “life has really deteriorated
recently.” J.A. 265.
The Plans ask us to infer from this change in scope between
Dr. Marks’s two reports that Webster was not T&P disabled by dint
of brain damage in 1993. The Plans assert that had Webster in fact
been brain damaged in 1993, “none of the above trained physicians
would have missed it.” Appellants’ Br. at 46. Similarly, the
Plans question the lack of any contemporaneous medical evidence
between 1991 and 1996 showing that Webster was brain damaged. Id.
26
The Board’s own expert, however, opined directly on the
question of when Webster’s T&P disability began. Dr. Westbrook
wrote to the Board, “[Webster] was completely and totally disabled
as of the date of his retirement and was certainly disabled when
stopped playing football sometime in 1990.” J.A. 565.7
Thus, the Plans ask us, in short, to do two things: first, to
disregard the testimony of the Board’s own medical expert (in
addition to all the others) because it was not “contemporaneous,”
a fact of which it had to have been aware when it engaged him, and
second, to hold that the absence of contemporaneous evidence is
itself “substantial evidence.” As inclined as we are to defer to
the Board’s discretion, the law does not permit such a leap of
faith.
We are not unsympathetic to the Board’s desire to protect Plan
assets in the context of claims of mental disability that may be
susceptible of misdiagnosis. However, the Board is not without
recourse in this situation. As we have discussed, the Plan itself
provides the Board with tools to resolve precisely this type of
scenario--an applicant submitting medical evidence that is
substantial but which the Board does not find dispositive. The
7
The Board discredited Dr. Westbrook’s opinion setting an
onset date for Webster’s TPD, choosing instead to credit only Dr.
Westbrook’s earlier opinion that did not provide such a date.
Parsing a doctor’s opinions, however, to ignore his later, more
comprehensive assessment is unreasonable. See Donovan, 462 F.3d
at 329.
27
Board availed itself of one such option by enlisting Dr. Westbrook
to examine Webster for mental disability. When Dr. Westbrook
returned his reports concurring with Webster’s doctors and opining
that Webster had become T&P disabled by 1991, the Board was faced
with unanimous, albeit ex post, evidence supporting Webster’s
claim. If the Board still harbored qualms about the strength of
Webster’s evidence, it could have easily “required [him] to submit
to such further examinations as, in the opinion of the Retirement
Board, are necessary to make an adequate determination respecting
his . . . mental condition.” See J.A. 112 (Plan § 5.2). Instead,
the Board truncated its medical investigation and chose to ignore
not only the views of Webster’s experts but also that of its own.8
In sum, the Board has offered no relevant medical or
employment evidence to contradict the unanimous medical opinion of
examining experts, even though those opinions were open to
challenge. Because these expert opinions at least establish a
presumption that Webster is entitled to Active Football benefits,
8
The Plans claim that the Board customarily invokes its right
to utilize a neutral physician only to determine whether an
applicant is T&P disabled, not when he became T&P disabled. This
claim is belied by the record. In eight other cases of T&P
disability due to brain damage, the Board appointed a neutral
physician to examine the applicants. J.A. 757-808. In every such
case in which the neutral physician offered a clear, conclusive
assessment of the applicant’s disability, the Board chose to follow
that neutral recommendation. Id. In one case in particular, the
Board “based the . . . effective date [of disability] on the . . .
report of the Plan neutral psychiatrist.” J.A. 786-92. Thus, the
Plans cannot now escape the uncontradicted opinion of Dr. Westbrook
that Webster became T&P disabled by March 1991.
28
and the Board did not rely on substantial evidence to contradict
them, we conclude that the Board abused its discretion in denying
Webster Active Football benefits.9 Cf. Stawls, 596 F.2d at 1213(remanding and demanding an explanation for “why the uncontradicted
evidence of the psychiatrists should not suffice to afford
recovery”).
III.
The Plans urge us in the alternative to bar recovery of any
benefits that accrued prior to January 1, 1996, pursuant to the
Plan limitations provision. Section 5.7 provides that “no total
and permanent disability benefit . . . will be payable with respect
to any month or other period of time that precedes by more than
forty-two (42) months” the T&P benefits application date. J.A. 151
(Plan § 5.7).
Webster’s estate concedes that Plan section 5.7 applies to his
application, but insists that the limitations period should be
9
Webster’s estate argues further that the Board abused its
discretion because its “decisionmaking process was [not] reasoned
and principled.” See Booth, 201 F.3d at 342. Five years and
repeated meetings passed between the Board’s initial tabling of
Webster’s claim for Active Football benefits and its final decision
to reject Webster’s last appeal. Webster’s estate insists that the
delay arose while the Board was seeking to rationalize its
predetermined decision to deny Webster’s claim. Appellee’s Br. at
49. The Plans, on the other hand, cite this time period as
evidence of careful deliberation. Because we find that the Board’s
decision was not supported by substantial evidence, we need not
endorse either of these characterizations.
29
tolled from March 1991 onward because of Webster’s brain damage.
The Plan requires that the limitations period “will be tolled for
any period of time during which such Player is found by the
Retirement Board to be physically or mentally incapacitated in a
manner that substantially interferes with the filing of such
claim.” Id. Thus, the issue before the court is whether the Board
abused its discretion in finding that Webster was not “mentally
incapacitated in a manner that substantially interfere[d] with the
filing of [his] claim.” Id.The Board is entitled to interpret the terms “mentally
incapacitated” and “substantially interferes” in any reasonable
manner. See J.A. 121 (Plan § 8.2(a)); Booth, 201 F.3d at 342. In
its letter denying Active Football benefits to Webster, however,
the Board did not define either term nor did it explain why the
tolling provision should not apply to Webster’s application.10
10
In their reply brief, the Plans for the first time propose
a definition for “incapacitated,” declaring that a person is
incapacitated only “if ‘the mind was so affected as to render him
wholly and absolutely incompetent to comprehend and understand the
nature of the transaction.’” Reply Br. at 21 (quoting Ortelere v.
Teachers’ Ret. Bd., 250 N.E.2d 460, 464 (N.Y. App. 1969)). This
dilatory attempt to cabin the breadth of the term “incapacitated”
is to no avail. First, the Board’s discretion to interpret and
define Plan terms does not allow the Plans to contrive ex post
interpretations on appeal. Second, the proffered definition
renders surplusage the Plan language “in a manner that
substantially interferes with the filing of such a claim.” That
is, if “incapacitated” means “absolute incompeten[ce],” then when
the Board finds that an applicant is “mentally incapacitated,” it
would necessarily also find that such incapacity “substantially
interfere[d] with the filing of [his] claim.” We cannot accept
such a definition that would render other Plan language of no
30
Instead, the Board merely relied on the failure of Webster’s
attorney to argue expressly for the limitations period to be
tolled. See J.A. 615.
It would require delicate parsing, however, to decide that the
medical and employment evidence that supports a finding of T&P
disability on these facts does not also support a finding of mental
incapacity that substantially interfered with the filing of
Webster’s claim. We cannot hold, then, that any further burden of
production lay upon Webster to invoke investigation into whether
the tolling provision should apply to his case.
That is not to say that “mental incapacity” and “mental T&P
disability” are coextensive. To equate the terms would, as the
Plans warn, render surplusage the words “or mentally” in the
provision tolling the limitations period whenever an applicant is
“physically or mentally incapacitated.” See J.A. 151 (Plan § 5.7).
The Plans argue instead that there is a higher standard for
proving “mental incapacity” than for proving “T&P disability.” To
put it differently, the Plans argue that all mentally incapacitated
applicants would suffer from a T&P mental disability, but not all
applicants suffering from a T&P mental disability would be deemed
mentally incapacitated.
moment. See de Nobel v. Vitro Corp., 885 F.2d 1180, 1188 (4th Cir.
1989) (warning that a benefits decision cannot be reasonable if it
“render[s] some language in the plan documents ‘meaningless’”).
31
We need not decide whether one standard is higher or the two
are merely different. Instead, we need only recognize that in some
cases, an applicant suffering from a mental condition that is T&P
disabling would be incapacitated to the extent that his condition
“substantially interferes” with his filing of a claim. Webster’s
history presents just such a case.
The Plans point to Webster’s numerous requests for disability
applications from the Board in 1995 and 1996 as evidence that he
was not mentally incapacitated. These requests, however, were at
times submitted only days apart. J.A. 206-210, 215, 218. Not one
of these applications was ever completed. Contrary to the Plans’
assertion, these staccato requests weigh significantly in favor of
a finding of mental incapacity that “substantially interfered” with
Webster’s ability to file a claim. For the tolling provision to
have any meaning, it must extend to protect applicants such as
Webster, who was so disabled that he could not even open his own
mail, see J.A. 604, let alone complete any of the several benefits
applications he requested without first securing significant
assistance from an attorney.
Moreover, had Webster been successful in returning any one of
these applications, even without any supporting documentation, the
limitations provision would never have attached to his case. See
J.A. 151 (Plan § 5.7) (calculating the 42-months limitations period
backwards from the date the Board “first receives a written
32
application or similar letter requesting” the benefit and requiring
only that such letter “begin[] the administrative process that
results in the award of the benefit”). The limitations provision
was only added to the Plan effective November 1, 1998, a mere six
months prior to the date that Webster finally managed to submit an
application for benefits.
The Plans finally insist that it would have been illogical for
the Board to have found Webster mentally incapacitated from 1991 to
1998 because he was apparently well enough in 1999 to submit an
application. This argument has only superficial appeal. The Plans
appear to read the word “substantially” to mean “completely” in the
phrase “mentally incapacitated in a manner that substantially
interferes with the filing of [a] claim.” Such an interpretation
cannot be reasonable, however, or the tolling provision would never
apply to an applicant who is permanently mentally incapacitated.
That is, under the Plans’ interpretation, the fact that an
application is ever submitted is evidence that the applicant is
not, at that time, suffering from incapacity that “substantially
interferes” with the filing of a claim. Instead, we have held that
the Board must interpret the tolling provision to give meaning to
each word. See de Nobel, 885 F.2d at 1188. The Plans’ suggested
reading of the tolling provision is thus unreasonable.
At bottom, the evidence of Webster’s brain damage tends to
show not only that he was T&P disabled, but that he was “mentally
33
incapacitated in a manner that substantially interfere[d]” with the
filing of his claim. J.A. 151 (Plan § 5.7). The Board has not
presented substantial evidence on which to deny Webster the
protection of the provision tolling the limitations period. We
therefore hold that the Board abused its discretion in applying the
limitations provision to bar Webster’s claim for Active Football
benefits retroactive to March 1991.
IV.
The Plans finally ask us to vacate the award of attorney’s
fees and costs to Webster’s estate.11 They advance only one
argument on appeal supporting the request--that attorney’s fees and
costs are inappropriate because Jani should not have prevailed on
the merits. Because the Plan failed to make any other argument,
the award of attorney’s fees and costs should be upheld provided
that Webster’s estate remains “a prevailing party” on a substantive
issue on appeal. See Martin v. Blue Cross & Blue Shield of Va.,
11
In ERISA actions, a district court has wide latitude in
deciding whether to award attorney’s fees and costs. See
§ 1132(g)(1); Metro. Life Ins. Co. v. Pettit, 164 F.3d 857, 865
(4th Cir. 1998). The district court here found significant that
the Board ignored the opinion of its own medical doctor and the
“overwhelming evidence supporting Webster’s claim, . . . relying
instead on Webster’s oncologist” to make the definitive
neurological determination. Jani v. Bert Bell/Pete Rozelle NFL
Player Ret. Plan, No. 04-1606, at *3-4 (D. Md. November 7, 2005).
Because the district court thus found that the Board’s “decision
indicates culpable conduct, if not bad faith,” it awarded
attorney’s fees to Webster’s estate. Id. at *4-5.
34
115 F.3d 1201, 1210 (4th Cir. 1997) (“[O]nly a prevailing party is
entitled to consideration for attorneys’ fees in an ERISA
action.”). Webster’s estate has prevailed on appeal, and we
therefore uphold the award of attorney’s fees and costs.
V.
Because there is nothing in this record on which to uphold the
Board’s denial of Webster’s application for Active Football
benefits, the decision of the district court is
AFFIRMED.
35