Skretvedt v. E.I. DuPont De Nemours & Co.

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

10-9-2001

Skretvedt v. EI DuPont de Nemours

Precedential or Non-Precedential:

Docket 00-2918

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Filed October 5, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-2918

ORRIN T. SKRETVEDT, Appellant

v.

E.I. DUPONT DE NEMOURS AND COMPANY, a Delaware

Corporation; E.I. DUPONT DE NEMOURS AND COMPANY,

PLAN ADMINISTRATOR;* PENSION AND RETIREMENT

PLAN; HOSPITAL AND MEDICAL-SURGICAL PLAN;

DENTAL ASSISTANCE PLAN; NONCONTRIBUTORY

GROUP LIFE INSURANCE PLAN; CONTRIBUTORY GROUP

LIFE INSURANCE PLAN; TOTAL AND PERMANENT

DISABILITY INCOME PLAN; SAVINGS AND INVESTMENT

PLAN; TAX REFORM ACT STOCK OWNERSHIP PLAN;

SHORT TERM DISABILITY PLAN

*(Amended per Clerk's Order dated 12/13/00)

On Appeal From the United States District Court

For the District of Delaware

(D.C. Civ. No. 98-cv-00061)

U.S. Magistrate District Judge: Honorable Mary P. Thynge

Argued: June 28, 2001

Before: BECKER, Chief Judge, NYGAARD and

REAVLEY,* Circuit Judges.

(Filed October 5, 2001)

_________________________________________________________________

* Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth

Circuit, sitting by designation.

JOHN M. STULL, ESQUIRE

(ARGUED)

1300 North Market Street, Suite 700

P.O. Box 1947

Wilmington, DE 19899

Counsel for Appellant

RAYMOND M. RIPPLE, ESQUIRE

(ARGUED)

DONNA L. GOODMAN, ESQUIRE

Legal D-7012

E.I. du Pont de Nemours and

Company

1007 Market Street

Wilmington, DE 19898

Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

This is an appeal by Orrin T. Skretvedt, a former

employee of defendant E.I. Du Pont de Nemours &

Company ("DuPont"), from the order of the District Court

granting summary judgment for DuPont on Skretvedt's suit

alleging that DuPont had denied his claim for disability

benefits under its pension and benefits plans in violation of

the Employee Retirement Income Security Act ("ERISA"), 29

U.S.C. S 1001 et seq. For the reasons that follow, we will

reverse.

The appeal first presents several questions about our

scope of review, which we resolve in favor of applying the

arbitrary and capricious standard prevalent in ERISA

cases. We do not find the exceptions to that standard

applicable here. Most significantly, we do not think the fact

that DuPont's Associate Medical Director was involved in

evaluating Skretvedt's claim both during the initial

determination and on appeal creates a procedural

impropriety that heightens the standard of review.

2

Despite the demanding arbitrary and capricious test, we

conclude that the medical evidence of job-related stress

that Skretvedt presented clearly demonstrates that he is

eligible for disability benefits under Dupont's"Incapability

Retirement" pension plan, one of the forms of disability

benefits that he claims. Although we take the evidence in

the light most favorable to DuPont, we are not convinced by

DuPont's arguments that the medical evidence was

inconclusive or equivocal with respect to the severity or

permanence of Skretvedt's incapability to perform

successfully the duties of his position. Indeed, Dupont can

point to no truly conflicting medical evidence. Dupont's

decision was "without reason," and it was"unsupported by

substantial evidence." Pinto v. Reliance Standard Life Ins.

Co., 214 F.3d 377, 393 (3d Cir. 2000) (quoting Abnathya v.

Hoffman-La Roche, Inc., 2 F.3d 40, 45 (3d Cir. 1993)

(internal quotation marks omitted)). It was therefore

arbitrary and capricious, requiring us to reverse the grant

of summary judgment and to direct that summary

judgment be entered on the Incapability Retirement claim

in favor of Skretvedt.

I. Facts and Procedural History

Skretvedt worked as an environmental engineer for

DuPont from June 28, 1974, until February 7, 1995, when

he was discharged. At that time, Skretvedt held the position

of Senior Research Environmental Engineer at DuPont's

Spruance Plant in Richmond, Virginia. Among other things,

he was responsible for ensuring that the plant complied

with federal environmental regulations. Skretvedt's job

responsibilities and the pressures associated with them

increased significantly in 1994 when certain regulations

under the Clean Air Act went into effect and the

department where he worked was simultaneously

downsized.

In early 1994, Skretvedt began receiving treatments for

work-related anxiety from his family physician, Harold

Binhammer, M.D., who periodically prescribed to him the

anti-anxiety drug Lorazepam. Skretvedt took a leave of

absence from his job at the Spruance Plant beginning on

November 11, 1994, and did not return to work at Dupont

3

thereafter.1 In November 1994, Dr. Binhammer diagnosed

Skretvedt with depression, prescribed the antidepressant

Paxil and referred him to a psychiatrist, Graenum R. Schiff,

M.D. Dr. Schiff saw Skretvedt periodically beginning in

November 1994. Schiff put Skretvedt on a regular daily

dose of twenty milligrams of Paxil and referred him for

therapy with Teresa A. Buczek, Ph.D., a clinical

psychologist who specializes in work-related stress

disorders.

On December 5, 1994, James E. Layton, M.D., the

Medical Supervisor at the Spruance Plant, wrote to Drs.

Binhammer, Schiff and Buczek, requesting that they

complete medical report forms to help him prepare a

written opinion on whether Skretvedt's condition qualified

him for disability benefits under DuPont's pension plan. All

three doctors responded to Dr. Layton's request, giving

their diagnoses and medical opinions of the severity and

likely duration of Skretvedt's condition. We describe these

opinions in greater detail below.

DuPont fired Skretvedt on February 7, 1995, citing the

incident in which he was accused of taking home a

company fax machine without permission as the reason for

the discharge. See supra note 1. Skretvedt filed a claim

with the Equal Employment Opportunity Commission

(EEOC), alleging that DuPont violated the Americans with

Disabilties Act (ADA) by discriminating against him based

on his anxiety disorder. The EEOC found no violation of the

ADA based on the information that Skretvedt submitted,

and issued him a right-to-sue letter. By September 1995,

Skretvedt had contacted an attorney regarding his ADA and

disability benefits claims. On September 29, Skretvedt,

acting on the advice of counsel, signed a "Settlement

_________________________________________________________________

1. Skretvedt was not officially terminated until February 7, 1995. The

parties disagree about the reason that Skretvedt went on a leave of

absence. Skretvedt contends that he was put on medical leave on the

recommendation of his physician. DuPont counters that Skretvedt was

asked to go on leave pending the outcome of an investigation into his

taking home a fax machine from the office without permission (Skretvedt

claims that he took it home for work-related use). As will appear, the

alleged incident with the fax machine has little bearing on whether

Skretvedt is eligible for disability benefits under DuPont's pension plan.

4

Agreement and Release of All Claims" with DuPont. Under

this agreement, Skretvedt released all of his employment-

related claims against DuPont except for his application for

disability benefits, which DuPont agreed to review in a

"neutral" manner.

DuPont's pension plan provides two different long-term

disability benefits: (1) the "Incapability Retirement" pension

("incapability benefits"); and (2) the "Total and Permanent

Disability Income Plan" ("T & P benefits"). An employee is

eligible for incapability benefits if he is "permanently

incapable of performing the duties of his position with the

degree of efficiency required by the Company, and he has at

least 15 years of service." Under its separate T & P benefits

plan, DuPont provides additional benefits to individuals

who are "disabled by injuries or disease and presumably

will be totally and permanently prevented from pursuing

any gainful occupation." At all times relevant to this

litigation, it was the practice of DuPont's three-member

Board of Benefits and Pensions ("Board"), which was

responsible for administering both disability benefits plans,

to first determine whether an employee qualified for

incapability benefits.2 If so, the Board would determine

whether the employee also qualified for T & P benefits.

Following the September 29, 1995 settlement agreement,

the Board reviewed Skretvedt's claims for disability

benefits. The Board considered the medical evidence that

DuPont's Dr. Layton had collected from Skretvedt's treating

physicians and psychologist as well as a medical opinion

from Dr. Layton himself, and determined that Skretvedt

was not eligible for either type of long-term disability

benefits. On May 23, 1996, the Board denied Skretvedt's

application for both incapability and T & P benefits and

issued a one-page form letter denying his benefits claims.

The letter stated that Skretvedt had failed to show that he

was "permanently incapable of performing the duties of

[his] job with the degree of efficiency required by the

_________________________________________________________________

2. In April 1997, DuPont outsourced the task of reviewing all employee

benefits claims to an insurance company. However, Skretvedt's

application, both before and after 1997, was processed using the internal

review procedure that DuPont used before April 1997.

5

Company, at the time of [his] termination." It also advised

him that in order to succeed on his appeal he would need

to submit "additional objective evidence that will indicate a

total impairment of function." The letter provided examples

of such "objective evidence," including "tests such as MRI,

x-ray reports and complete medical evaluations," but

warned that "[o]pinions of healthcare providers are not

sufficient without objective medical evidence to support

such opinions."

Skretvedt contends that he and Dr. Binhammer sent

three letters to the Board's designated contact for appeals,

requesting clarification of the types of "objective medical

evidence" needed to perfect his application on appeal in

light of the fact that his claimed disability is psychological.3

After receiving no response for almost a year, Skretvedt

formally submitted his appeal to the Board on May 16,

1997. He included with his application updated letters from

the doctors who had examined him prior to his initial

application, as well as letters and evaluation forms from

other doctors. After hearing nothing from the Board for

more than three more months, Skretvedt wrote to DuPont

inquiring about the status of his appeal. He received no

immediate response.

Having received no response from the Board, Skretvedt

initiated the present lawsuit by filing a complaint on

February 4, 1998, invoking 29 U.S.C. S 1132(a)(1)(B), which

allows a beneficiary of an ERISA-governed benefits plan to

sue for "benefits due to him under the terms of the plan."

Skretvedt alleged that DuPont's pension and benefits review

board had violated ERISA by arbitrarily and capriciously

denying him disability benefits, by acting in bad faith, and

by operating under a conflict of interest. The parties

entered into a stipulation agreeing to stay the proceedings

until October 1, 1998, pending a final decision by the

Board on Skretvedt's appeal for disability benefits. The

parties also stipulated that the Board's decision on

Skretvedt's appeal would "be the only decision for the

purpose of judicial review of the denial of benefits."

_________________________________________________________________

3. DuPont denies receiving these letters.

6

Following the October 1, 1998 stipulation, Skretvedt

resubmitted the materials that he had included in his

initial appeal application as well as additional materials.

These included updated opinion letters from Drs.

Binhammer and Schiff, and a psychological evaluation

report and opinion letter from Richard B. Zonderman,

Ph.D., a licensed clinical psychologist who had performed

some standardized psychological tests on Skretvedt. All of

these physicians and psychologists concluded that

Skretvedt was unable to return to his previous job at

DuPont. Skretvedt also submitted the "Explanation of

Determination" that he received from the Social Security

Administration following the denial of an application that

he had filed for social security disability benefits. The

explanation concluded that Skretvedt's "condition prevents

[him] from doing the type of work that [he] has done in the

past," but that he did not qualify for social security

disability benefits because his disability "does not prevent

[him] from doing less demanding work that does not require

extensive public contact."

Skretvedt held two different jobs during the period

following his termination from DuPont. In the spring of

1995, he established his own furniture repair and

refinishing business. The business earned a modest profit

in 1995, but lost money in 1996, and Skretvedt was forced

to seek other employment. Beginning in May 1996,

Skretvedt took a job with the Virginia Department of Labor

as a compliance inspector. The position involved a two-year

training period, during which his job responsibilities

gradually increased. Skretvedt's work-related anxiety and

depression increased in 1998 as his training period ended.

As a result, Dr. Schiff recommended that Skretvedt take a

two-month medical leave of absence beginning on August

17, 1998. Skretvedt has since resigned from his position at

the Virginia Department of Labor.

The Board finally denied Skretvedt's appeal for disability

benefits on October 13, 1998. Following the Board's final

decision, discovery in the present suit proceeded, after

which the parties filed cross-motions for summary

judgment. Acting pursuant to 28 U.S.C. S 636, a magistrate

judge reviewed the motions and recommended that the

7

District Court grant DuPont's motion for summary

judgment and deny Skretvedt's cross-motion. The District

Court approved the report and issued the recommended

orders. Skretvedt now appeals. The District Court had

jurisdiction based on 28 U.S.C. S 1331 and 29 U.S.C.

S 1132, and we have jurisdiction under 28 U.S.C. S 1291.

We exercise plenary review over a district court's grant of

summary judgment. See Pi Lambda Phi Fraternity, Inc. v.

Univ. of Pittsburgh, 229 F.3d 435, 441 n.3 (3d Cir. 2000).

The familiar standards that we apply when reviewing

motions for summary judgment are set forth in the margin.4

II. Standard of Judicial Review of the Board's

Decision

Skretvedt argues that the District Court erred by

reviewing the Board's denial of his disability benefits under

the arbitrary and capricious standard, and that it should

have applied a heightened standard of review due to the

structural conflicts of interest and procedural irregularities

in DuPont's pension benefits review system. In Firestone

Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), the

Supreme Court addressed the appropriate standard of

review for courts to apply when reviewing an employer's

denial of a benefit under an ERISA-governed plan. Drawing

on principles of trust law, the Court held that where, as

here, an employer's pension plan gives discretion to a plan

administrator or fiduciary to interpret the plan and make

benefits determinations, "a deferential standard of [judicial]

review [is] appropriate." Id. at 111. When reviewing the

denial of pension benefits under ERISA where the pension

plan commits discretion to the fiduciary, we have employed,

as Bruch directs, the "arbitrary and capricious" standard.

_________________________________________________________________

4. Summary judgment is proper if there is no genuine issue of material

fact and if, viewing the facts in the light most favorable to the non-

moving party, the moving party is entitled to judgment as a matter of

law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317

(1986). The judge's function at the summary judgment stage is not to

weigh the evidence and determine the truth of the matter, but to

determine whether there is a genuine issue for trial. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

8

See, e.g., Keating v. Whitmore Mfg. Co., 186 F.3d 418, 420-

21 (3d Cir. 1999). A court reviewing a benefits denial under

the arbitrary and capricious standard must defer to the

plan administrator unless the administrator's decision was

"without reason, unsupported by substantial evidence, or

erroneous as a matter of law." Pinto v. Reliance Standard

Life Ins. Co., 214 F.3d 377, 393 (quoting Abnathya v.

Hoffman-La Roche Inc., 2 F.3d 40, 45 (3d Cir. 1993)

(internal quotation marks omitted)).

In Bruch, the Court also went on to state that "if a benefit

plan gives discretion to an administrator or fiduciary who is

operating under a conflict of interest, that conflict must be

weighed as a factor in determining whether there is an

abuse of discretion." 489 U.S. at 115 (quotation marks and

citation omitted). Interpreting this language, we have held

that even when a pension plan commits discretion to a

fiduciary or plan administrator, a reviewing court should

apply a heightened standard of review "either when the

plan, by its very design, creates a special danger of a

conflict of interest, or when the beneficiary can point to

evidence of specific facts calling the impartiality of the

administrator into question." Goldstein v. Johnson &

Johnson, 251 F.3d 433, 442 (3d Cir. 2001) (citing Pinto, 214

F.3d at 383-87).

In Pinto, we specifically identified two conditions that

indicate a special danger of a conflict of interest that would

warrant applying a heightened standard of review. These

are: (1) when a pension plan is unfunded, i.e., not

"actuarially grounded, with the company making fixed

contributions to the pension fund," 214 F.3d at 388, but

rather funded by the employer on a claim-by-claim basis;

and (2) when a plan is administered by an administrator

outside of the employer company, such as an insurance

company, that does not have strong incentives to keep

employees satisfied by granting meritorious claims. Id. In

circumstances that warrant a heightened level of review, we

have held that a court should use a sliding-scale approach,

examining each case on its facts to determine what level of

review to apply; the greater the danger of a conflict of

interest, the less deference the reviewing court should

apply. Id.

9

The parties do not dispute that DuPont's pension plan

gives substantial discretion to the Board to interpret the

terms of the plan and to administer benefits based on these

interpretations. Usually, this would counsel a court to

review the Board's decision under the arbitrary and

capricious standard. Skretvedt argues, however, that Pinto

requires us to apply a heightened standard in this case

because: (1) the T & P benefits at issue in this case are part

of an unfunded plan; and (2) there are procedural defects

in DuPont's pension and benefits review system. 5

As noted above, the Board first considered Skretvedt's

incapability claim, and finding that he did not qualify,

denied his claims for both incapability benefits and for

T & P benefits. DuPont does not make a regular actuarially

determined contribution to a fund that supports the

payment of benefits to employees who are totally and

permanently disabled, hence the T & P benefits that

Skretvedt applied for would be paid out of an unfunded

plan. DuPont's incapability benefits, however, which

Skretvedt also applied for, are part of a funded plan. As we

explain in the margin, the mere fact that the T & P benefits

plan is unfunded does not require applying a heightened

standard of review to the denial of funded incapability

benefits.6 However, a heightened standard of review might

_________________________________________________________________

5. Skretvedt also argues that the Board showed a general partiality

toward DuPont and a failure to appreciate its role as a fiduciary that

would justify applying a heightened standard of review under Pinto.

However, he does not document these contentions, and conclusory

contentions do not constitute "evidence of specific facts calling the

impartiality of the administrator into question." Goldstein, 251 F.3d at

442.

6. While it could conceivably be argued that the Board was biased in its

evaluation of Skretvedt's incapability benefits claim because it was

anticipating that a grant of incapability benefits would put it one step

closer to granting benefits under the unfunded T & P plan, we think that

this link to the source of the conflict (the unfunded plan) is too

attenuated to "create[ ] a special danger of a conflict of interest."

Goldstein, 251 F.3d at 442. As we observed in Pinto, all of the courts of

appeals that have considered the judicial standard of review over denials

of benefits governed by ERISA "appear to agree that some level of conflict

may be unavoidable and not every conflict will heighten the level of

scrutiny." 214 F.3d at 389. Here, the unfunded plan is at most indirectly

connected to the incapability benefits determination; therefore any

conflict that the T & P plan presents does not rise to the level at which

Pinto counsels heightening the standard of review.

10

be applicable to the Board's denial of Skretvedt's claim for

the unfunded T & P benefits, because of the potential

conflict under Pinto. Because we conclude that the Board's

reason for denying incapability benefits was arbitrary and

capricious, see infra Part III.B.4, and because the Board

relied on the same reason to deny T & P benefits, that

denial was also arbitrary and capricious. We therefore need

not decide whether a stricter standard of review is

applicable to the Board's denial of Skretvedt's claim for

T & P benefits.

Skretvedt also contends that there are defects in the

structure and procedure of DuPont's pension and benefits

review system that require us to apply a heightened level of

review. These arguments focus mainly on the role that Dr.

Benjamin Ramirez, Dupont's Associate Medical Director,

played in the Board's review of claims for disability benefits.

While he was not a member of the Board, Ramirez was

involved in evaluating applications for disability benefits at

both the initial stage and at the appeal level. During the

period relevant to this case, the initial determination to

deny an application for disability benefits was not made by

the three-member Board, but rather by two board

"delegates": Dr. Ramirez, and Herbert Watson, a DuPont

benefits administrator. If the delegates decided that the

employee did not qualify for the benefits that he claimed,

the employee was notified of the decision and informed that

he could appeal. At the appeal level, the three-member

Board (which did not include Ramirez or Watson), would

vote on whether to change the initial determination, relying

in part on Dr. Ramirez's recommendation, which he based

on his review of all of the medical evidence presented.

Skretvedt argues that two features of Dr. Ramirez's

participation in the evaluation process call into question

the Board's impartiality in a way that counsels increasing

the standard of review above arbitrary and capricious.

First, Skretvedt submits that it was improper for Dr.

Ramirez to be involved in the evaluation process during

both the initial benefits determination and the appeal. In

Skretvedt's view, Dr. Ramirez could not impartially advise

the Board regarding appeals from benefits denials if he

made the initial determination. But under the ERISA

11

regulations in effect during the times relevant to this case,

there was no requirement that the appellate decisionmaker

even be someone different from the initial decisionmaker.

See Brown v. Retirement Comm. of Briggs & Stratton

Retirement Plan, 797 F.2d 521, 534 (7th Cir. 1986); 29

C.F.R. S 2560.503-1(g)(1) & (2) (2000). Therefore, Ramirez's

roles as a decisionmaker in the initial proceeding and as an

advisor in the appellate proceeding are not evidence of a

conflict of interest that would require heightened review.7

Second, Skretvedt contends that, as DuPont's Associate

Medical Director, Dr. Ramirez necessarily acted as an

"advocate" for DuPont, and sought to convince the Board to

deny Skretvedt's claim on appeal. Skretvedt submits that

because DuPont had an advocate present at the Board

meetings, he also should have been permitted to have a

representative present.

In Grossmuller v. International Union, United Automobile,

Aerospace & Agricultural Implement Workers of America,

715 F.2d 853 (3d Cir. 1983), we held that in order to give

an ERISA-governed benefits claim "full and fair review" as

is required by ERISA S 503, 29 U.S.C. S 1133, a

decisionmaker must allow a claimant to make his case in

person (or through a representative) if the decisionmaker

receives testimony from a third party in opposition to

granting the claim. See id. at 858. Subsequent cases have

made it clear, however, that Grosmuller extends only to "the

situation wherein a third party is permitted to appear at a

meeting and provide factual information which the absent

claimant cannot refute." Hlinka v. Bethlehem Steel Corp.,

_________________________________________________________________

7. Dr. Ramirez's role as the initial decisionmaker and as an advisor on

the appeal level would be permitted even under the new and more

detailed regulations governing appeals from ERISA benefits

determinations, which will apply to claims filed on or after January 1,

2002. See 66 Fed. Reg. 35886 (July 9, 2001). The new regulations

require only that appellate review of a benefits claim be conducted by

"an appropriate named fiduciary of the plan who is neither the individual

who made the adverse benefit determination that is the subject of the

appeal, nor the subordinate of such individual." 29 C.F.R. S 2560.503-

1(h)(3)(ii) (2001). Here, Ramirez was not a member of the Board that

acted as the fiduciary decisionmaker in Skretvedt's appeal, nor is there

any evidence that the members of the Board were his subordinates.

12

863 F.2d 279, 287 (3d Cir. 1988). In this case, there is no

evidence that Dr. Ramirez presented any factual testimony

that Skretvedt did not have a chance to review. Ramirez

gave an opinion based on his review of the medical reports

from Skretvedt's own doctors and from Dupont's Dr.

Layton, all of which Skretvedt had seen. Nor is Ramirez a

"third party" as contemplated by Grossmuller.

In short, there is no reason to doubt the Board's

contention that Dr. Ramirez was acting merely as an

advisor to the Board rather than as an advocate for

DuPont. Therefore, the District Court was correct to apply

an arbitrary and capricious standard when reviewing the

Board's denial of Skretvedt's claim for incapability benefits.

We decline to reach the question whether a stricter

standard of review is applicable to the Board's denial of

Skretvedt's claim for T & P benefits.

III. The Board's Decision to Deny Skretvedt's Claim

for Incapability Benefits

A. Introduction

The language from DuPont's benefits plan that governs a

claimant's eligibility for incapability benefits is as follows:

An employee may be retired by the Company if the

Board of Benefits and Pensions finds that he has

become, for any reason, permanently incapable of

performing the duties of his position with the degree of

efficiency required by the Company, and he has at

least 15 years of service.

DuPont's Board interprets this language to require that the

claimant show that his or her incapability was permanent

at the time of his or her termination. DuPont presented the

following interpretation to the District Court:"[T]o receive

an award of benefits: (1) the applicant must present

evidence that he was permanently (as opposed to

temporarily) disabled; (2) at the time of the termination; and

(3) the severity of the disability at termination permanently

precluded the applicant from performing the duties of his

position." Mem. Op., Sept. 6, 2000, at 5 n.6. The Board's

13

interpretation of DuPont's pension and benefits plan is

entitled to deference under the arbitrary and capricious

standard, unless it is contrary to the plain language of the

plan. See Epright v. Envt'l Res. Mgmt., 81 F.3d 335, 339 (3d

Cir. 1996). Because DuPont's interpretation is consistent

with the plan's language, we apply it here when reviewing

the Board's denial of Skretvedt's claim for incapability

benefits.

The reasons that DuPont now offers for denying

Skretvedt's disability claims are that the medical evidence

that he presented was not sufficient to show that his

disability was permanent at the time of his termination,

and that the evidence was not sufficient to show that his

disability was severe enough to prevent him from

performing his previous job at DuPont. We find these

justifications to be post hoc because they were never offered

to Skretvedt following the denial of his initial claim or his

appeal.8

_________________________________________________________________

8. The original denial letter sent to Skretvedt merely restated the

requirements of the benefits plan, concluding that Skretvedt had failed

to show that he was "permanently incapable of performing the duties of

[his] job with the degree of efficiency required by the Company, at the

time of . . . termination," without providing any explanation of why the

Board reached that conclusion. Dr. Ramirez admitted in deposition that

the instruction that Skretvedt received in his initial denial letter

regarding what additional information he needed to provide on appeal in

order to succeed was a "boilerplate statement." Similarly, the letter that

the Board sent Skretvedt denying his appeal, while it listed the evidence

that the Board had before it, did not provide any specific reasons for

denying the appeal. The Board's failure to provide Skretvedt with

reasoned explanations for why it denied his disability claims or

information on what evidence he could present to improve his claims

raises policy concerns that underlie the notice requirements that ERISA

places on pension and benefit review boards. Specifically, the review

boards must give reasons to applicants for denying their claims so that:

(1) applicants may clarify their application on appeal; and (2) federal

courts may exercise an informed and meaningful review of the pension

boards' decisions.

Skretvedt argues that both the Board's initial letter denying his claims

and the letter denying his appeal provided insufficient notice of the

reasons for denial to satisfy the requirements of ERISA S 503, 29 U.S.C.

14

However, we will assume arguendo that it is proper for us

to consider these post hoc justifications. For the reasons

_________________________________________________________________

S 1133. Section 503 requires that employee benefit plans "provide

adequate notice in writing" of a claim denial"setting forth the specific

reasons for such denial." 29 U.S.C. S 1133(1); see also 29 C.F.R.

S 2560.503-1(g) (2001). Skretvedt contends that the letters violated S 503

by failing to provide reasons for the denial and by failing to provide an

explanation of what would constitute sufficient"objective" medical

evidence of a psychological disability. One of the main purposes for the

requirement that the denial letter provide specific reasons "is to provide

claimants with enough information to prepare adequately for further

administrative review or an appeal to the federal courts." DuMond v.

Centex Corp., 172 F.3d 618, 622 (8th Cir. 1999).

We find the lack of explanations in the denial letters that DuPont sent

Skretvedt troubling. We do not reach the question whether the notice

was legally inadequate under S 503, however, because we resolve this

appeal on the ground that, even fully crediting the post hoc rationales

offered by Dupont, the Board's decision to deny benefits was arbitrary

and capricious. For the same reason, we decline to reach the question of

what level of deference is owed to rationales for denying benefits under

an ERISA-governed plan that a pension board presents for the first time

in federal court. We take this opportunity, however, to underscore the

importance of pension boards providing specific reasons for denying

applicants' benefits claims, both so that applicants may introduce the

proper evidence on appeal and so that a federal court may exercise

meaningful review.

We note in this regard our agreement with the policy concerns

identified in University Hospitals of Cleveland v. Emerson Electric Co.,

202 F.3d 839 (6th Cir. 2000), where the court held that it would not

defer to post hoc rationales for denying benefits claims generated for the

purpose of litigation by ERISA plan administrators when those rationales

did not appear in the denial letters sent to the benefits claimants or in

the administrative record. The court observed that:

it strikes us as problematic to, on one hand, recognize an

administrator's discretion to interpret a plan by applying a

deferential "arbitrary and capricious" standard of review, yet, on

the

other hand, allow the administrator to "shore up" a decision after-

the-fact by testifying as to the "true" basis for the decision

after the

matter is in litigation, possible deficiencies in the decision are

identified, and an attorney is consulted to defend the decision by

developing creative post hoc arguments that can survive deferential

review. . . . To depart from the administrative record in this

fashion

15

that follow we nonetheless conclude that the Board's

proffered justifications are unconvincing in light of its own

interpretation of the eligibility requirements for incapability

benefits and the medical evidence before it.

B. The Medical Evidence Presented

Skretvedt submitted two sets of medical evidence to the

Board, one set with his initial application, and another set

with his appeal. Together, these two sets of medical

opinions make up the entirety of the medical evidence that

the Board had before it when it made its decision to deny

Skretvedt's benefits. Our disposition of the case turns on

whether this evidence is sufficient to demonstrate that

Skretvedt was permanently disabled at the time of his

termination and that his disability was (and continues to

be) severe enough to prevent him from "performing the

duties of his position with the degree of efficiency required"

by DuPont.

1. Items Submitted in Skretvedt's Initial Application

The items that Skretvedt submitted with his initial

application included several letters from his treating

physicians, Dr. Graenum Schiff and Dr. Harold

Binhammer, a letter from his treating clinical psychologist,

Dr. Theresa Buczek, and an evaluation form that Dr. James

Layton, the Spruance Plant's Medical Director, completed in

October 1995.

Skretvedt submitted an evaluation report from Dr. Schiff

dated November 16, 1994, which diagnosed him with an

"[a]djustment Disorder with anxious mood" and stated that

he suffered from "severe work stress." At the bottom there

were handwritten notes explaining that, since he had been

_________________________________________________________________

would, in our view, invite more terse and conclusory decisions from

plan administrators, leaving room for them -- or, worse yet,

federal

judges -- to brainstorm and invent various proposed "rational

bases" when their decisions are challenged in ensuing litigation.

Id. at 848 n.7.

16

taking the antidepressant drug Paxil, Skretvedt was"much

improved." On January 17, 1995, however, Dr. Schiff wrote

to Dr. Layton that although the antidepressant drug Paxil

was helping, Skretvedt "is no longer temperamentally suited

to do the job he was doing at his previous level of efficiency

. . . and for this reason I would recommend early

retirement."

In a letter dated January 26, 1995, Dr. Binhammer,

Skretvedt's family physician, explained that in November

1994, Skretvedt was in an "acute" state of depressive

anxiety, which was ameliorated with medication and with

his leave from work. Binhammer concluded that "Skretvedt

should not go back to his position as an Environmental

Engineer . . . because of the anxiety precipatated[sic] to

him by this type of work and then the resultant breakdown

in his psyche. At this time while not clearly definable as to

the length of time, I suspect it may be permanent."

Dr. Buczek, a clinical psychologist who treated Skretvedt,

wrote two letters to the Board regarding his condition. The

first, dated January 16, 1995, stated that Skretvedt was

suffering from emotional problems due to job pressure, and

that "[i]n regard to the question of whether these

impairments are temporary . . . I am still unclear. I

recommend that he be considered unfit for work activity for

the next 90 days. During that time in therapy, we can

better determine if he will be able to work at some other job

in DuPont. I do not believe that he will be able to return to

his former position, and that this is a very unlikely

possibility for now or the future." Dr. Buczek's second

letter, dated January 23, 1995, described Skretvedt's

symptoms in greater detail, but did not mention his fitness

for work or the permanence of his condition.

Finally, Skretvedt submitted an evaluation that Dr.

Layton completed in October 1995. The evaluation

diagnosed Skretvedt with an "Adjustment Disorder with

Mixed Emotional Features," and stated "Prognosis: guarded,

to be able to return to present job assignment . . . because

of his inability to concentrate and think coherently because

of stress." On the basis of the foregoing evidence, the Board

denied his benefits claims, stating that "the medical

evidence submitted does not support a conclusion that you

17

are permanently incapable of performing the duties of an

Environmental Engineer with the degree of efficiency

required by the Company. . . . In order for your appeal to

be successful, you must provide additional objective

evidence . . . ."

2. New Documents Submitted on Skretvedt's Appeal

Skretvedt relates that, at this point, he and Dr.

Binhammer sent a total of three letters requesting

clarification as to what kind of evidence they should submit

on appeal. DuPont denies receiving the letters. After he did

not hear anything further from DuPont, Skretvedt

attempted to get a complete set of psychological tests

performed. He then submitted several new sources of

medical evidence in his appeal application (in addition to

resubmitting the documents that he had included in his

initial application).9

The new documents that Skretvedt submitted with his

appeal application included: two letters from Dr. Richard B.

Zonderman, a clinical psychologist who in March 1997

performed a clinical interview and two types of standard

psychological tests for Skretvedt; updated letters from Drs.

Schiff and Binhammer; and a letter from the Social Security

Administration denying Skretvedt's claim for disability

insurance benefits.

The first Zonderman letter describes the clinical interview

and two standardized psychological tests: MMPI-2

(Minnesota Multiphasic Personality Inventory), and MCMI-

III (Millon Clinical Multiaxial Inventory). Based on his

examination of Skretvedt, Zonderman concluded that

Skretvedt was at that time experiencing many of the same

_________________________________________________________________

9. It is unclear whether the magistrate judge, when reviewing DuPont's

motion for summary judgment, considered the medical evidence that

Skretvedt submitted to the Board with his appeal application. The

magistrate judge's September 6, 2000 memorandum opinion cites and

discusses only the medical evidence that Skretvedt submitted in his

initial claim for disability benefits. However, it is proper for us to

consider all of the medical evidence that Skretvedt submitted since

DuPont represents that its Board considered all of the medical evidence

when it denied Skretvedt's appeal.

18

symptoms that he had complained of in 1994 and 1995,

and was suffering from a "prominent anxiety disorder."

Zonderman went on to conclude that "[w]hat began as a

work related situation has spread and now affects all

aspects of [Skretvedt's] life" and that"[r]eturn to a job

resembling the environmental engineering position which

caused [Skretvedt's] problems would most likely precipitate

post traumatic stress like symptoms." Zonderman also

stated that "[w]hatever the etiology, . . . underlying

personality features will make change difficult and

protracted." In his second letter, dated July 29, 1998,

Zonderman opined that Skretvedt's emotional problems had

been caused by his job, that some of the symptoms had

been treated by doctors before Skretvedt left his

employment with DuPont, that Skretvedt was still in

therapy in July 1998 with two different doctors, and that

"[h]e cannot return to a similar work environment . . . ."

The first letter from Dr. Schiff, dated May 9, 1997,

explained that he was writing to supply the evidence

required by the Board regarding the permanence of

Skretvedt's condition. The letter noted that Drs. Schiff,

Buczek, and Binhammer had all examined Skretvedt before

his termination and concurred that Skretvedt would never

be able to return to his position at DuPont. The letter

questioned the Board's requirement of "objective" evidence,

such as X-rays and MRIs, representing that such evidence

is impossible to obtain for psychiatric disabilities. Schiff

concluded by citing two pieces of "objective proof " of the

permanence of Skretvedt's psychiatric disabilities. First, he

related that when Skretvedt attempted to return to a job in

his old field of industrial hygiene (i.e., his job as a

compliance inspector at the Virginia Department of Labor)

"his symptoms returned and his condition deteriorated."

Second, he pointed out that several specialists had

examined Skretvedt and had all agreed that his condition is

permanent.

Dr. Schiff 's second letter, dated July 28, 1998, updated

the previous letter, stating that Skretvedt's anxiety disorder

had intensified as the two-year training program for his

entry-level industrial hygiene position was drawing to a

close, and that as a result, his medication had to be

19

increased. Dr. Schiff concluded that Skretvedt should not

be working at all. Moreover, on August 17, 1998, soon after

writing his second letter, Dr. Schiff recommended that

Skretvedt go on a two-month medical leave of absence.

An updated letter from Dr. Binhammer, dated May 9,

1997, stated that, as of that date, Skretvedt would respond

to stress with "post traumatic episodes," and that these

symptoms were the same as those "Skretvedt was

experiencing back in 1994." The letter noted that during

the time that Skretvedt worked as a furniture refinisher,

these episodes were less frequent because of the change of

job environment, but that when Skretvedt attempted to

return to his old field, the symptoms returned and

"escalated." The letter concluded: "My prognosis today is

the same as in 1995, with firmer conviction. More than two

years have passed and the problems . . . have continued.

. . . I think time and circumstance have proven our original

prognosis for Mr. Skretvedt. I continue to believe his

condition is total and permanent."

Finally, Skretvedt submitted the letter from the Social

Security Administration denying his claim for disability

insurance benefits. As discussed above, the SSA concluded

that Skretvedt was permanently unable to perform his

previous job at DuPont, but was ineligible for disability

insurance benefits because he was still able to perform

other work.

3. DuPont's Contentions Evaluated

DuPont contends that Skretvedt's medical evidence was

inconclusive with respect to showing (1) that his disability

was severe enough to render him incapable of performing

his former job at DuPont; and (2) that Skretvedt's disability

was permanent as of the time of his termination. The

District Court agreed. However, we find neither of these

arguments convincing in the face of the persuasive and

essentially unrebutted medical evidence that Skretvedt

presented to the Board.

DuPont challenges several of the pieces of medical

evidence that Skretvedt submitted, arguing that internal

contradictions or insufficiency in certain pieces of medical

20

evidence demonstrate that the medical documents are as a

whole equivocal or inconclusive with respect to either the

severity or the permanence of Skretvedt's disability, or

both. We take these up seriatim.

a. Documents Submitted with the Initial Application

DuPont first challenges two evaluations that diagnosed

Skretvedt with an "Adjustment Disorder," one from Dr.

Schiff in 1994 and one from Dr. Buczek in 1995. According

to the fourth edition of the Diagnostic and Statistical

Manual of Mental Disorders (DSM-IV), cited by DuPont,

adjustment disorders are generally triggered by a stressor,

"and last[ ] no longer than 6 months after the stressor or its

consequences have ceased." DSM-IV 625 (4th ed. 1994).

DuPont argues that this treatise demonstrates that the

psychiatric disorder that Drs. Schiff and Buczek diagnosed

is not permanent. This argument overlooks the fact,

however, that the DSM also states that "[i]f the stressor or

its consequences persist, the Adjustment Disorder may also

persist." Id. Drs. Schiff and Buczek made it clear in the

documents in which they diagnosed Skretvedt with an

adjustment disorder that the stressor that triggered the

adjustment disorder was Skretvedt's job at DuPont.

More particularly, the narrative section of Dr. Schiff 's

1994 medical evaluation form focused on Skretvedt's

complaints about the stresses of his job at DuPont.

Furthermore, Dr. Buczek's January 16, 1995 letter

concluded that "[t]his diagnosis and these symptoms

appear to be related to increased job pressures and

responsibilities." The relevant question with respect to

Skretvedt's eligibility for incapability benefits is whether his

disability renders him permanently incapable of doing his

previous job. Therefore, the DSM's statement that an

adjustment disorder will usually last no longer than six

months after the removal of the triggering stressor does not

diminish the force of the diagnosis when the stressor that

the diagnosing doctors identified is Skretvedt's previous job.

DuPont next submits that notes from Dr. Schiff and a

medical report from Dr. Binhammer show that Skretvedt's

medical condition improved quickly once he started

21

treatment with the antidepressant drug Paxil, and that

therefore the condition is not permanent. Handwritten

notes at the end of Dr. Schiff 's November 16, 1994 medical

report indicate that Skretvedt was "much improved on

Paxil." A January 26, 1995 letter from Dr. Binhammer also

notes that Skretvedt's "Depressive Medical illness [had]

improved." But the fact that Dr. Schiff 's notes and Dr.

Binhammer's letter indicate that Skretvedt's depression

improved with medication does not mean that his condition

no longer rose to the level of severity that would prevent

him from doing his previous job at the required degree of

efficiency.

Reading these statements in the context of the totality of

the reports and letters in which they appear, it is clear that

Drs. Schiff and Binhammer meant that Skretvedt's

condition had improved, not that it had improved to a point

where he was capable of performing his previous job at

DuPont. For example, in the same letter in which

Binhammer wrote that medication and therapy had

improved Skretvedt's depression, he also wrote that"Mr.

Skretvedt should not go back to his position as an

Environmental Engineer . . . because of the anxiety

precipatated [sic] to him by this type of work and then the

resultant breakdown in his psyche."

DuPont also points to the statements that Dr. Buczek

made about the permanence of Skretvedt's condition in the

materials that Skretvedt submitted with his initial

application for disability benefits. Specifically, DuPont cites

a recommendation that Buczek made in her January 16,

1995 letter -- that Skretvedt should be "considered unfit for

work activity for the next 90 days" and that he should be

reevaluated at that time. However, the next sentence in

Buczek's letter makes it clear that while she held out hopes

that Skretvedt might at that time "be able to work at some

other job at Dupont," she did "not believe that he w[ould]

be able to return to his former position."

b. The Period from 1995 to 1997

DuPont submits that two different aspects of the evidence

presented regarding Skretvedt's condition during the period

22

from 1995 to 1997 show that the evidence is equivocal and

that therefore the Board's denial of disability benefits was

reasonable.

DuPont first contends that Skretvedt's failure to present

evidence that he received treatment from February 1995

through March 1997 shows that his condition was either

insufficiently severe or that it was temporary. But

Skretvedt's failure to present evidence that he was treated

during this period does not mean, as DuPont suggests, that

treatments were suspended because the disability no longer

existed. Such an inference is unreasonable in light of the

statement of Dr. Layton, the Spruance Plant's Medical

Director, that as of October 1995, Skretvedt told him that

he had stopped receiving treatment from Drs. Schiff and

Buczek because of the expense. Skretvedt's attorney

confirmed at argument that Skretvedt had no health

insurance during much of the period from 1995 to 1997

and was unable to pay for treatments.

DuPont next argues that the fact that Skretvedt held a

job at the Virginia Department of Labor during the period

from 1995 to 1997 that was generally in the same field as

his job at DuPont shows either that his condition was not

so severe that it would have prevented him from doing his

old job at DuPont, or that the condition was not

permanent, i.e., it had improved enough for him to take a

position similar to the one he held at DuPont. The

circumstances surrounding Skretvedt's job at the Virginia

Department of Labor, however, demonstrate otherwise.

Motivated by financial necessity, Skretvedt abandoned

his furniture refinishing business, and took what was,

according to a letter from Dr. Binhammer, an entry-level

position as a compliance inspector with the Virginia

Department of Labor. Both Drs. Schiff and Binhammer

opined that Skretvedt's job as a compliance inspector had

made his psychological condition as bad or worse than it

was during the last year of his employment at DuPont. Dr.

Schiff wrote that "[a]s the end of [the] training approached

. . . and full responsibilities were assumed, he experienced

a serious escalation in symptoms." Similarly, describing

Skretvedt's job at the Department of Labor, Dr. Binhammer

concluded that when Skretvedt returned to "even a similar

23

work situation [to his job at Dupont,] the condition

returned with even more severity." Given these descriptions

of the return of Skretvedt's symptoms, the fact that

Skretvedt worked for a time in an entry-level position at the

Virginia Department of Labor that was generally in the

same field as his previous job at DuPont does not rebut or

render inconclusive the medical evidence of his permanent

inability to do his previous job at DuPont.

c. Documents Submitted to the Board for the First

Time in the Appeal Application

DuPont argues that the 1997 report from Dr. Zonderman

contains only "general, conclusory" statements, and could

be interpreted as stating only that current stressors in

Skretvedt's life in 1997 were causing his illness. In

addition, DuPont contends that Dr. Zonderman's diagnosis

that Skretvedt suffered from an Axis I disorder of"Major

Depression, single episode, moderate chronic," indicates

that the condition is not permanent. Zonderman's report,

however, also diagnosed Skretvedt with a psychological

syndrome that it described as a "longstanding behavioral

pattern," and recommended that Skretvedt receive

immediate treatment with both drugs and psychotherapy.

In a follow-up letter dated July 29, 1998, Zonderman

indicated that he had been treating Skretvedt since his

initial evaluation, and that he continued to show symptoms

of post-traumatic stress disorder.

Dupont also challenges the sufficiency of Schiff 's and

Zonderman's follow-up letters from 1997 and 1998,

asserting that they are conclusory and that they do not

provide conclusions as to whether Skretvedt's condition is

treatable or permanent, or whether it existed at the time of

his termination. We are unpersuaded. These brief letters

were merely introduced to update letters written earlier,

which do state case dispositive conclusions. Dr. Schiff 's

earlier letter specified his opinion that Skretvedt's condition

was permanent. Dr. Zonderman, in his 1998 letter,

specifically stated that all of the problems began during

Skretvedt's DuPont employment.

24

4. Summary--Applying DuPont's Standard for

Eligibility to the Medical Evidence

The question that the Board faced when reviewing

Skretvedt's appeal application was whether in light of all

the medical evidence presented, he demonstrated that he

was "permanently . . . disabled; at the time of the

termination; and [that] the severity of the disability at

termination permanently precluded [him] . . . from

performing the duties of his position." Mem. Op., Sept. 6,

2000, at 5 n.6. The dispositive question is whether,

applying the Board's interpretation of Dupont's benefits

plan and taking the evidence in the light most favorable to

DuPont, the Board's denial of Skretvedt's claim for

incapability benefits was arbitrary or capricious, i.e.,

whether it was "without reason [or] unsupported by

substantial evidence." Pinto, 214 F.3d at 393 (quoting

Abnathya v. Hoffman-La Roche Inc., 2 F.3d 40, 45 (3d Cir.

1993) (internal quotation marks omitted)).

In light of the foregoing medical evidence, we conclude

that even under the deferential arbitrary and capricious

standard, DuPont's denial of Skretvedt's incapability

benefits claim must be rejected because it was unsupported

by substantial evidence. The medical evidence provides

clear support for all three of the elements of the eligibility

requirements for incapability benefits as DuPont defines

them. It shows that Skretvedt had a psychological disability

that: (1) is severe enough to prevent him from performing

his previous job at the required level of efficiency; (2) is

permanent; and (3) existed as of the date of his

termination. Indeed, the medical experts who examined

Skretvedt concluded unanimously that his psychological

condition was severe enough to prevent him from

"performing the duties of his position with the degree of

efficiency required" by DuPont. While in 1994 and 1995

some of the doctors expressed uncertainty about the

duration for which Skretvedt would be required to forego all

work, all concluded that he could not return to his old job.

Moreover, the follow-up statements of Skretvedt's

examining physicians and the supplemental medical report

and letter from Dr. Zonderman confirm their initial

opinions that Skretvedt's psychological disability is

25

permanent. In these documents, all of the doctors who

submitted evaluations for Skretvedt's initial application

reaffirmed their conclusion that he is not capable of

performing his old job at DuPont, lending support to their

previous conclusions that the condition is permanent. Dr.

Zonderman's evaluation reached the same conclusion, and

linked Skretvedt's psychological condition to the stresses

that he faced at work at DuPont.

The letters from Drs. Schiff, Binhammer, and Buczek

also establish that Skretvedt's condition existed before his

termination from DuPont in February 1995. All three of

these doctors examined Skretvedt and diagnosed his

disorder before he was fired. We find it relevant that Drs.

Binhammer and Schiff had long-term treatment

relationships with Skretvedt and that therefore they were

uniquely able to provide detailed longitudinal information

on Skretvedt's condition. We have long recognized that in

the analogous area of disability benefits determinations

under the Social Security Act, the "opinions of a claimant's

treating physician[s] are entitled to substantial and at times

even controlling weight." Fargnoli v. Massanari, 247 F.3d

34, 43 (3d Cir. 2001); see also Cotter v. Harris , 642 F.2d

700, 704 (3d Cir. 1981).

For the reasons stated above, although we take the

evidence in the light most favorable to DuPont, we are not

convinced by DuPont's arguments that the medical

evidence was inconclusive or equivocal with respect to the

severity or permanence of Skretvedt's disability. Because

the medical evidence that Skretvedt presented makes it

clear that he meets the eligibility standards for incapability

benefits, and the Board can point to no conflicting medical

evidence, we find that the Board's decision was arbitrary

and capricious because it was "without reason" and it was

"unsupported by substantial evidence." Pinto, 214 F.3d at

393 (quoting Abnathya v. Hoffman-La Roche Inc. , 2 F.3d 40,

45 (3d Cir. 1993) (internal quotation marks omitted)). The

order of the District Court granting summary judgment in

favor of DuPont and denying summary judgment in favor of

Skretvedt on the claim for incapability benefits will

therefore be reversed, and the case remanded to the

District Court with directions to grant summary judgment

26

in favor of Skretvedt on the claim for incapability benefits.

See, e.g., Canseco v. Constr. Laborers Pension Trust, 93

F.3d 600, 609 (9th Cir. 1996) (no remand is necessary

where no new factual determinations remain). Finally,

because the Board denied Skretvedt's claim for T & P

benefits for the same reasons that it denied his claim for

incapability benefits, we will vacate the District Court's

order granting summary judgment on the count challenging

the Board's denial of Skretvedt's application for T & P

benefits and remand it to the District Court. We assume

that the District Court will direct that DuPont's Board

consider this claim in the first instance, since even though

Skretvedt is incapable of performing the duties of his

previous position at DuPont, he may nevertheless be

ineligible for T & P benefits.10

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

10. Skretvedt has also requested that he be awarded attorneys' fees

pursuant to ERISA's discretionary fee-shifting provision. That section

provides that in any action under ERISA "by a participant, beneficiary,

or fiduciary, the court in its discretion may allow a reasonable

attorney's

fee and costs of action to either party." 29 U.S.C. S 1132(g)(1). The

question whether to award attorneys' fees to Skretvedt is a matter of

discretion, which we remand for the District Court to consider guided by

the five-factor analysis applied by courts in this circuit when

considering

such fee applications. See McPherson v. Employees' Pension Plan of Am.

Re-Insurance Co., 33 F.3d 253, 254 (3d Cir. 1994).

27