                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT

                                  ___________

                                  No. 96-2063
                                  ___________

Curtis Duffie,                        *
                                      *
              Plaintiff-Appellant,    *
                                      *
     v.                               *   Appeal from the United States
                                      *   District Court for the
Deere & Company; The Disability       *   Northern District of Iowa.
Benefit Plan for Hourly and           *
Incentive Paid Employees for          *           [PUBLISHED]
Deere & Company,                      *
                                      *
              Defendants-Appellees.   *

                                  ___________

                     Submitted:   December 13, 1996

                         Filed:   April 9, 1997
                                  ___________

Before BOWMAN and LAY, Circuit Judges, and STROM,1 District Judge.
                               ___________


PER CURIAM.


     Curtis Duffie brought this action against his former employer, Deere
& Company, pursuant to 29 U.S.C. § 1132, part of the Employee Retirement
Income Security Act (ERISA), 29 U.S.C. § 1101 et seq.      Duffie appeals the
district court’s decision to affirm the Plan Administrator’s denial of
disability benefits under Deere’s Plan for Hourly and Incentive Paid
Employees.




     1
      The Honorable Lyle E. Strom, United States District Judge for
the District of Nebraska, sitting by designation.
     The district court affirmed Deere’s denial of benefits in a cursory
opinion, finding that Duffie was not unable to perform and attend his job
due to any sickness or injury.    The court concluded that the “plaintiff
failed to prove by a preponderance of the evidence that he was totally
disabled within the meaning of the Plan prior to the termination of his
employment.”   Duffie v. Deere & Co., No. C93-1025, slip op. at 2-3 (N.D.
Iowa Mar. 22, 1996).


     Though Deere argues otherwise, the Plan Administrator’s decision
should not be reviewed under the arbitrary or capricious standard.     That
standard is used only when a plan administrator has discretionary authority
to determine eligibility for benefits or to construe the terms of the plan.
Firestone Tire & Rubber v. Bruch, 489 U.S. 101, 115 (1989).   The plan here
does not provide the Plan Administrator with this power.       The district
court properly reviewed the claim de novo, making findings of fact and
conclusions of law.     We review the district court’s findings of fact
(which,   in this case, includes only one finding) under the clearly
erroneous rule.   Greater Kan. City Laborers Pension Fund v. Superior Gen.
Contractors, Inc., 104 F.3d 1050, 1054 (8th Cir. 1996).2


Background
     Curtis Duffie had been employed in various positions at Deere for
twenty-one years, when in 1988 Deere terminated his employment, citing
Duffie’s chronic tardiness and absenteeism as its reason.         From 1967
through 1988, the term of Duffie’s employment with Deere, he repeatedly
missed work, most often for medical reasons.   Deere’s “Absence Occurrences”
chart reflects that Duffie took approximately




     2
      Although Deere raises the jurisdictional argument that Duffie
failed to exhaust his remedies, we agree with the district court’s
rejection of such a claim on the ground that Deere, notwithstanding
the failure to exhaust, acquiesced in Duffie’s appeal procedure.

                                     2
194 weeks of medical leave: thirty-two weeks for injuries and pain in his
back, neck, and shoulders; thirty-one weeks for stomach problems; nineteen
weeks for elbow surgery; thirteen weeks for depression; twelve weeks for
hypertension; eleven weeks for a jaw fracture; ten weeks for depression
headaches; eight weeks for foot surgery; seven weeks for carpal tunnel
surgery; five weeks for headaches; four weeks for rib surgery; four weeks
for a burned hand; and thirty-eight weeks for miscellaneous illnesses and
reasons.3   App. at 243.   Duffie’s medical records show that at the time of
his termination in 1988, he suffered from arthritis, fibromyalgia (a
chronic musculoskeletal pain syndrome), neuropathy and carpal tunnel
syndrome (both syndromes affecting the nerves), headaches, depression,
substance abuse (alcoholism), and Post Traumatic Stress Disorder.


       In December 1981, Deere held an “unemployable” conference with
Duffie, where Duffie was told his absenteeism rate was fifty percent, and
that he needed to “get his medical problems under control.”              Record of
Unemployable     Conference   (Dec.   11,   1981),   App.   at    233.    A   Deere
representative told Duffie that if his attendance did not improve, he would
be terminated.    Id.   When the absences continued, a Deere representative
held a second unemployable conference in March 1984.             The representative
told Duffie that his absenteeism rate was fifty-three percent, and if
absenteeism continued, “a third conference would eventually be held and at
that




       3
      These figures are rough but conservative approximations from
Deere’s chart. Duffie’s brief estimates that he “was on medical
leave for approximately 1400 days from 1975 through 1988 due to a
variety of medical problems.” Appellant’s Br. at 3. The brief
also notes that while this number includes non-work days such as
weekends and holidays, it does not include shorter-term absences.
Id. at 3 n.1.     Apparently, the “Absence Occurrences” chart sets
out only Duffie’s medical leave, and not his individual sick days
or tardiness.

                                        3
time a disciplinary action hearing would be convened and he would be
terminated.”   Record of Unemployable Conference (March 12, 1984), App. at
234.   In March 1985, Deere management conducted another conference with
Duffie, which was not termed an unemployable conference, but rather was
held to “review [Duffie’s] absenteeism and current status.”       Record of
Conference (March 14, 1985), App. at 235.         At that meeting, Duffie
expressed his desire to enter an inpatient alcohol treatment program, but
management told him that outpatient treatment would be “best suited to his
current situation” because of his absenteeism rate.   Id.   Deere terminated
Duffie from work in April 1987, but rehired him under a “last chance
agreement” in August 1987.    Under the agreement, Duffie could return to
work on probationary status, but with the understanding that continued
attendance problems would result in termination.      He missed 170.75 hours
of work after signing this agreement, and was finally terminated June 22,
1988, due to his “accumulation of absences.” Record of Disciplinary Action
(June 22, 1988), App. at 239, 241.
       In March 1992, Duffie sought disability benefits under Deere’s
Disability Benefit Plan for Hourly and Incentive Paid Employees (the Plan).
In June 1992, Deere denied Duffie’s application for benefits.         Duffie
requested the United Automobile, Aerospace and Agricultural Implement
Workers of America (the Union), to which he had belonged while he was
employed at Deere, to appeal the decision.   The Union refused.   Deere then
gave Duffie permission to appeal individually to the Plan Administrator.
The Plan Administrator denied Duffie’s appeal, determining that none of his
conditions, “alone or coupled with others,” prevented Duffie from doing his
job.   Duffie argued to the Plan Administrator that despite his apparent
ability to perform his job, he was, due to his health problems, unable to
attend his job, and was thereby disabled under the Plan.           The Plan
Administrator rejected this argument,




                                     4
concluding that even “without considering absences related to illness
and/or injury, Claimant had a deplorable attendance record -- a record
justifying disciplinary action under the circumstances of his case.”
Review of Denied Claim for Disability Benefits (March 31, 1993), at 16.
According to the Plan Administrator, Duffie’s absences were due not to his
various maladies, but instead to his “irresponsibility.”       Id. at 18.


Findings of the District Court


     Under Federal Rule of Civil Procedure 52(a), trial courts should and
must “state legal and factual conclusions sufficient to give an appellate
court a clear understanding of the grounds of its decision.”    White Indus.,
Inc. v. Cessna Aircraft Co., 845 F.2d 1497, 1499 (8th Cir. 1988).       If an
appellate court does not know what facts the trial court took into
consideration in drawing its conclusions, its findings become suspect.      See
Atlantic Thermoplastics Co. v. Faytex Corp., 5 F.3d 1477, 1479 (Fed. Cir.
1993) (remanding because the district court’s findings were “too conclusory
and sparse” to provide a factual basis for appellate review); EEOC v.
United Va. Bank/Seaboard Nat’l, 555 F.2d 403, 406 (4th Cir. 1977) (holding
that appellate review is precluded when “the trial court provides only
conclusory findings, illuminated by no subsidiary findings or reasoning on
all the relevant facts”).


     The only critical fact the district court found states as follows:
“Plaintiff was not, by sickness or injury, rendered unable to attend and
perform   the duties of his occupation prior to his termination from
employment on June 22, 1988.”    Duffie v. Deere & Co., No. C93-1025, slip
op. at 2 (N.D. Iowa Mar. 22, 1996).       Because the district court provided
no support or additional findings, we hold that this finding is clearly
erroneous.   The




                                      5
record is overwhelmingly contrary to the district court’s conclusory
finding.


     The record shows that Duffie had approximately forty-five doctor
visits between July 23, 1987 (the date of the last chance agreement), and
June 22, 1988 (the date he was terminated).              Of the total 170.75 hours of
documented absences occurring after the last chance agreement, the record
is undisputed that 132.5 hours were related to illness, including 36.5
hours missed for the flu and 88 hours missed for a broken ankle.                  Duffie
was ultimately terminated for his “accumulation of absences.”                The record
is replete with corroboration of Duffie’s visits to physicians -- often the
Deere physician -- during this period.             Duffie saw a Deere physician for
degenerative ailments related to knee, elbow, back and neck problems
throughout February 1988.       Duffie phoned a Deere physician concerning his
shoulder   pain    on   June   22,   1988,   the   day    of   his   discharge.   Deere
consistently referred to Duffie’s medical problems when discussing his
absenteeism.4     The medical record in this case is voluminous; there can be
little reasonable doubt that Duffie’s absenteeism was causally related to
Duffie’s numerous medical problems.
     Additionally, there should be little doubt that the district court’s
conclusion that Duffie was not disabled within the meaning of the Plan
directly followed from its finding that he was not rendered unable to
attend his job by reason of his illnesses.               Since the underlying factual
finding is clearly erroneous, we think it procedurally judicial to remand
the case to the district court to decide again the ultimate issue of
whether Duffie is disabled




     4
      The record also indicates that Duffie’s musculoskeletal
difficulties caused him pain when he was working, and that his work
as a forklift driver exacerbated the pain. See, e.g., App. at 46
(setting out Duffie’s testimony).

                                             6
under       the   Plan,   making   further       factual   findings   to   support   its
determination.      For us to proceed to the ultimate issue of disability with
no factual findings as our basis would violate this court’s function, which
is to review, rather than to make, findings of fact.                       See Atlantic
Thermoplastics, 5 F.3d at 1479 (“This court must review factual findings
made by the district court; it may not guess at findings left unmade.
Fact-finding by the appellate court is simply not permitted.”) (citing
Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)).5


        Thus, we remand to the district court for a de novo review of the
issue of Duffie’s disability under the Plan as of the date of his last
termination.       The court must apply the law of the case, bearing in mind
that this court holds the earlier determination that Duffie was not
rendered unable to attend his job to be clearly erroneous.


        The district court shall make its findings and certify such findings
within ninety days to the clerk of this court.


        IT IS SO ORDERED.




        5
      We are cognizant that the Plan Administrator conceded that
the test for disability under the Deere Plan is substantially the
same   as   the   standard   followed  by   the  Social   Security
Administration.     All parties agree that upon the date of
termination, Duffie had been found to be “totally disabled” by the
Social Security Administration, and not capable of undertaking
substantial gainful activity. We are also cognizant, however, that
Deere was not privy to that litigation, and although the award of
benefits and finding of the Social Security Administration is
admissible evidence in this case to support Duffie’s claim, it is
not binding against Deere.

                                             7
A true copy.


     Attest:


           CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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