                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 06-1517
                                  ___________

Daniel Johnson,                        *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
Bert Bell/Pete Rozelle NFL             *
Player Retirement Plan,                *
                                       *
            Appellee.                  *
                                  ___________

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

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

WOLLMAN, Circuit Judge.

       Daniel Johnson appeals from the district court’s1 grant of summary judgment
in favor of Bert Bell/Pete Rozelle NFL Retirement Plan (Plan) in his action brought
pursuant to the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§
1001, et seq. We affirm.




      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota
                                          I.

       Johnson played professional football from 1982 until 1988, when he suffered
a career-ending back injury while diving for a pass. In August 1988, Johnson
underwent surgery to repair the injury, but thereafter his condition continued to
gradually degenerate. As a vested inactive professional football player, Johnson is
eligible for disability benefits under the Plan if he becomes totally and permanently
disabled. A player is considered to be totally and permanently disabled if he is
“substantially prevented from or substantially unable to engage in any occupation or
employment for remuneration or profit.” Under the Plan, the Disability Initial Claims
Committee (Claims Committee) decides all initial claims for disability benefits. The
Plan’s Retirement Board (Board) decides appeals from decisions made by the Claims
Committee and renders final decisions on behalf of the Plan. If the Board is
deadlocked concerning a decision, the dispute can be referred to a Medical Advisory
Physician (MAP), whose opinion is final and binding on the Board.

      Johnson first applied for total and permanent disability benefits under the Plan
in October 2000, citing back problems resulting from his 1988 injury. The Plan had
him undergo a medical examination with Dr. Edward Hanley, who concluded that
Johnson was not totally and permanently disabled and could perform sedentary work.
Based on this conclusion, the Claims Committee denied Johnson’s claim. Johnson’s
appeal was denied by the Board.

       On November 21, 2001, Johnson sought a medical opinion from Dr. Scott
Middlebrooks, who concluded that Johnson was “disabled from any occupation.”
Johnson consequently reapplied for disability benefits in February 2002, whereupon
the Plan again referred him to Dr. Hanley for an evaluation. In his March 14, 2002,
opinion, Dr. Hanley answered “yes” to the question whether Johnson was totally
disabled, but also remarked that Dr. Middlebrooks’s diagnosis was consistent with Dr.
Hanley’s previous evaluation. Because Dr. Hanley had previously concluded that

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Johnson was not totally and permanently disabled, the Claims Committee asked him
to clarify his answer. Dr. Hanley replied that Johnson “could probably do sedentary
work.” Based on this information, the Claims Committee denied Johnson’s second
application for benefits.

      Johnson appealed the Claims Committee’s second denial, and the Plan referred
him to Dr. Craig Chebuhar for another evaluation. On July 23, 2002, Dr. Chebuhar
determined that Johnson was totally and permanently disabled and unable to return to
any gainful employment, but also noted that this was a “difficult question.”
Thereafter, the Board sent Johnson to a MAP, Dr. Bernard Bach, for a final, binding
determination regarding Johnson’s disability status. On October 30, 2002, Dr. Bach
concluded that Johnson was totally and permanently disabled. He also commented
that he believed the disability had persisted for more than twelve months.
Consequently, the Board awarded Johnson disability benefits at its January 2003
meeting and began paying him monthly benefits thereafter.

      To determine the date when Johnson’s disability became total and permanent,
which would determine whether he was entitled to any retroactive benefits, the Board
asked Johnson to submit additional evidence that would support a disability onset
date earlier than January 1, 2003, including past tax records and Social Security
earnings. Johnson provided past tax records and Social Security earnings, but did not
provide any additional medical information. The Board found that Johnson’s tax and
Social Security records showed that he had received wage and self-employment
income during most, if not all, of the years from 1988 through 2002. Based on this
information and Dr. Chebuhar’s report, the Board determined that the effective date
of Johnson’s total and permanent disability was July 23, 2002, the date on which Dr.
Chebuhar found Johnson to be totally and permanently disabled. Accordingly,
Johnson was entitled under the Plan to receive retroactive benefits as of August 1,
2002,– the first day of the month following the disability onset date. On appeal, the
Board denied Johnson’s request for an award of benefits prior to August 1, 2002.

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        Johnson then commenced this action, alleging that the Board abused its
discretion when it denied his claim for retroactive benefits prior to August 1, 2002.
It is from the district court’s decision that the Board did not abuse its discretion that
Johnson appeals.

                                           II.

       “We review de novo the district court’s grant of summary judgment, viewing
the record in the light most favorable to the nonmoving party.” Tillery v. Hoffman
Enclosures, Inc., 280 F.3d 1192, 1196 (8th Cir. 2002). Because the Plan gives the
Board the discretionary authority to construe the terms of the Plan and to determine
eligibility for benefits, we review the Board’s decision for abuse of discretion. Norris
v. Citibank, N.A. Disability Plan (501), 308 F.3d 880, 883 (8th Cir. 2002). “This
deferential standard reflects our general hesitancy to interfere with the administration
of a benefits plan.” Id. (quoting Layes v. Mead Corp., 132 F.3d 1246, 1250 (8th Cir.
1998)). Under the abuse of discretion standard, “we must affirm if a reasonable
person could have reached a similar decision, given the evidence before him, not that
a reasonable person would have reached that decision.” Wise v. Kind & Knox
Gelatin, Inc., 429 F.3d 1188, 1190 (8th Cir. 2005) (quoting Ferrari v. Teachers Ins.
& Annuity Ass’n, 278 F.3d 801, 807 (8th Cir. 2002)). To be reasonable, the decision
must be supported by substantial evidence. Norris, 308 F.3d at 883-84. Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. at 884 (quoting Fletcher-Merrit v. NorAm Energy Corp.,
250 F.3d 1174, 1179 (8th Cir. 2001)).

         Johnson contends that a less deferential standard should apply because the
Board’s composition creates a conflict of interest . While “[a] conflict of interest may
trigger a less deferential standard of review,” Tillery, 280 F.3d at 1197, no such
conflict exists here. The Board is composed of an equal number of NFL management-
appointed representatives and NFL player-appointed representatives and must reach

                                          -4-
a majority vote on any disability determination. If a majority is not reached, the case
can be forwarded to a MAP for a final, binding disability determination. Given this
arrangement, there is no conflict of interest. See, e.g., Manny v. Central States,
Southeast and Southwest Areas Pension and Health and Welfare Funds, 388 F.3d 241,
243 (7th Cir. 2004); Courson v. Bert Bell NFL Player Retirement Plan, 75 F.Supp. 2d
424, 431 (W.D. Pa. 1999). Accordingly, the Board’s decision need not be subjected
to a more stringent standard of review.

                                         III.

       We turn to the question whether the Board abused its discretion when it set
August 1, 2002, as the date when Johnson’s disability became permanent and total.
To support his argument that the Board abused its discretion, Johnson initially
contends that the Board was bound by that portion of Dr. Bach’s October 30, 2002,
opinion which stated that Johnson’s disability had persisted for more than twelve
months. At the latest, this would establish October 30, 2001, as the date of onset and
require the plan to make disability payments retroactive to November 1, 2001.
Johnson therefore contends that the Board abused its discretion when it set Johnson’s
effective date as August 1, 2002, rather than in accordance with Dr. Bach’s binding
determination.

       Under Section 8.3 of the Plan, the Board may call upon a MAP for a final and
binding determination as to “whether a claimant medically is substantially prevented
from or substantially unable to engage in any occupation or employment for
remuneration or profit.” Johnson asserts that this language makes Dr. Bach’s opinion
regarding the duration of the disability binding on the Board. The Board, which has
the authority to interpret the Plan’s provisions, does not consider itself bound by Dr.
Bach’s statement. We conclude that the Board’s interpretation is reasonable. A plain
reading of Section 8.3 suggests that the Board is bound to a MAP’s opinion regarding
whether a total and permanent disability exists, but not necessarily as to when the

                                         -5-
disability became total and permanent. A determination regarding the onset date
might well often be difficult for a MAP to make, for it typically requires a
consideration of evidence that cannot be gleaned from a medical examination itself,
such as the past employment and medical records of the claimant. Further, the
physician report form that must be completed by a MAP does not ask the MAP to set
an effective date for the total and permanent disability. Had the Plan intended such
a determination to be binding on the Board, the MAP would likely have been asked
to make this determination. For these reasons, we think it was reasonable for the
Board to conclude that it was not bound by Dr. Bach’s statement concerning the onset
of the disability. Accordingly, the Board had the discretion to make such a
determination, a discretion that it did not abuse by setting a date that was not in
accordance with Dr. Bach’s opinion.

       Johnson further contends the Board abused its discretion when it refused to set
an earlier effective date because its decision was not supported by substantial
evidence. In making its determination, the Board examined Johnson’s medical
records and employment history and concluded that Johnson was not totally and
permanently disabled until Dr. Chebuhar’s July 23, 2002, examination. The Board
relied primarily on Dr. Hanley’s opinion and the earnings Johnson received from his
landscaping business as evidence that Johnson was not totally and permanently
disabled prior to that date. Johnson argues this decision was unreasonable because Dr.
Hanley’s opinion did not constitute substantial evidence and the earnings from
Johnson’s business should not have been considered. We disagree.

       Johnson’s medical history contained conflicting reports regarding the date of
his disability. Dr. Middlebrooks opined that Johnson was totally and permanently
disabled in November 2001. Dr. Hanley initially appeared to make a similar
determination in his March 2002 report, but in April 2002 stated that Johnson “can
probably do sedentary work.” In October 2002, Dr. Bach found that Johnson was
totally and permanently disabled and stated that “the disability has persisted for at

                                         -6-
least twelve months.” These opinions do not provide a clear picture as to the actual
onset date of Johnson’s total and permanent disability. The opinions of Dr.
Middlebrooks and Dr. Bach can be interpreted to support a finding that Johnson was
totally and permanently disabled on or around October/November 2001, whereas Dr.
Hanley’s opinion can be interpreted to contradict those opinions and show that
Johnson could perform sedentary work as of March, 2002. Because Dr. Hanley was
one of the Plan’s neutral physicians and had earlier examined Johnson, the Board
ultimately gave greater weight to his testimony and determined that it showed that
Johnson was not disabled in November 2001. Johnson contends that Dr. Hanley’s
opinion did not constitute substantial evidence because his April 2002 statement was
a short, conclusory remark that contradicted his March 2002 opinion rather than
clarifying it.

       Because Dr. Hanley’s April statement was made in response to the Board’s
request for clarification, we think it was reasonable for the Board to interpret it as such
and conclude that Dr. Hanley believed that Johnson was not totally and permanently
disabled as of March 2002. Further, we do not think it was unreasonable for the
Board to give greater weight to Dr. Hanley’s opinion. The Board, as the plan
administrator, had the authority to weigh the conflicting testimony and come to a
reasonable conclusion. As recounted above, Dr. Hanley was a neutral physician who
had experience working with the Plan and had earlier examined Johnson. Dr.
Middlebrooks, on the other hand, was not a Plan physician, was retained by Johnson,
and had never before examined him. As for Dr. Bach’s opinion, the parties dispute
whether his statement concerning the length of the disability was referring to total and
permanent disability or some lesser form of disability. Given these circumstances, we
think the Board’s decision was reasonable.

      As for Johnson’s employment history, Johnson contends that the earnings he
received as the owner of a landscaping business from 1999 until 2002 should not have
been considered. Johnson claims that because as the owner/manager he was not

                                           -7-
actively involved in any of the actual labor performed by the business, these earnings
should have been excluded from consideration because the Plan provides that “[a]
[p]layer will not be considered to be able to engage in any occupation or employment
for remuneration or profit merely because such person . . . manages personal or family
investments.” The Board, however, interprets this provision as applying only when
a player is managing an investment portfolio, and not when the player is managing or
owning an active business. Again, the Board has the authority to construe the terms
of the Plan, we are required to give deference to its interpretation, and we reverse only
if it has abused its discretion. Leonard v. Southwestern Bell Corp. Disability Income
Plan, 341 F.3d 696, 703 (8th Cir. 2003). Given the Plan’s language, we cannot say
the Board’s interpretation was unreasonable or constituted an abuse of discretion. The
Board therefore acted within its rights in considering Johnson’s earnings from his
landscaping business when determining the onset date of his permanent and total
disability.

       Given Johnson’s medical records and employment history, we conclude that
there is substantial evidence to support the Board’s decision to set the effective date
of permanent and total disability as August 1, 2002, rather than Johnson’s proposed
earlier date. Johnson’s tax records showed that he had received earnings through
2002, and Dr. Hanley’s opinion supported a finding that Johnson was not totally and
permanently disabled as of March, 2002. Although there is evidence that would
support an earlier effective date, a reasonable person could have concluded that
Johnson’s disability benefits should start on August 1, 2002. Accordingly, the Board
did not abuse its discretion when it refused to set a start date earlier than this.

      The judgment is affirmed.
                      ______________________________




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