UNPUBLISHED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.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.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.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

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 Insur-
ance") benefits based on a primary diagnosis of subphrenic abscess,2
which stemmed from gastric stapling surgery undergone by Mr. Nor-
man in 1980. The SSA determined that the date of the onset of dis-
ability 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 bene-
fits, the SSA granted a second period of disability commencing
November 1, 1987. At this point, the SSA relied on medical evidence
_________________________________________________________________
1 Mr. Norman was also involved in a mining accident in 1980, but con-
tinued 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).

                    2
indicating "scoliosis of the back with chronic back pain, bursitis, bor-
derline 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 sepa-
rately. By letter dated November 23, 1994, the Trustees granted Mr.
Norman a disability pension for the period of November 1, 1987 for-
ward, but denied him a pension for the period of August 14, 1982 to
October 31, 1987. Letter from Kyu W. Lee, Assistant Director for Eli-
gibility Services, United Mine Workers of America Health and
Retirement Funds, to Curtis Norman (Nov. 23, 1994); Claim Deci-
sion, Claim No. XXX-XX-XXXX 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 submit-
ted to the Trustees additional evidence indicating that the disability
was due to problems with his back and the subphrenic abscess. How-
ever, by letter dated June 2, 1995, the Trustees again denied Mr. Nor-
man 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 judg-
ment to Mr. Norman, and overturned the Trustee's decision to deny
benefits for the period from 1982 to 1987. This appeal ensued.
_________________________________________________________________

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, dis-
trict 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 administra-
tors 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 Work-
ers 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 dis-
cretion 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

                     4
any award of benefits "is governed in the first instance by the lan-
guage 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 acci-
          dent such Participant is subsequently determined to be eligi-
          ble 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 con-
          dition, 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. Nor-
man's disability did not result from a mine accident and that the dis-
trict court erred in finding an abuse of discretion on their part.

For the following three reasons, we hold that the district court cor-
rectly 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

                     5
may qualify for a disability pension if his disability is the result of a
mine injury "in combination with a previous or subsequent condi-
tion." 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 medi-
cal 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 con-
tributed to Mr. Norman's disability. Notice, Claim Number
XXX-XX-XXXX (Aug. 26, 1987).

Moreover, two doctors noted the difficulty of assessing Mr. Nor-
man's condition because of the interaction between the gas-
tric/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, Work-
ers 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. Nor-
man." (April 6, 1983). Mr. Norman suffered from numerous physical
ailments. The evidence indicates that several physical and mental con-
ditions factored into Mr. Norman's inability to work. Under Boyd,
plaintiff's injury need only be, "whether in combination with a previ-
ous 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

                     6
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 cau-
sation 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 eli-
gibility 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. XXX-XX-XXXX, supra,
at 4. The Trustees' decision to deny benefits was an abuse of discre-
tion because it limited its inquiry too narrowly.

Third, the award of a disability pension for the period after Novem-
ber 1, 1987 reveals the inconsistency of the Trustees denial of a dis-
ability 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. XXX-XX-XXXX 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. Nor-
man'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

                    7
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 dis-
cretion.

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 thor-
ough opinion. The opinion below is, therefore,

AFFIRMED.

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