Petition for Writ of Certiorari — Gouras v. Burroughs Wellcome Co.

IN THE

September Term i990

BARBARA J. GOURAS (WADE),

Petitioner,

Vv.

BURROUGHS WELLCOME COMPANY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Willis A. Talton

Counsel of Record

Post Office Box 390

308 S. Evans Street

Greenville, N.C. 27858

TEL: 919-752-6888

Attorney for Petitioner

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

September Term i990

BARBARA J. GOURAS (WADE),

Petitioner,

Vv.

BURROUGHS WELLCOME COMPANY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Willis A. Talton

Counsel of Record

Post Office Box 390

308 S. Evans Street

Greenville, N.C. 27858

TEL: 919-752-6888

Attorney for Petitioner

QUESTIONS PRESENTED FOR REV EW

i. Did the appellate court err in

concluding that the decision of the

Benefits Committee could withstand

scrutiny under the arbitrary and

capricious standard of review when no

evidence of a vocational expert, as was

mandated in Gunderson v. W.R. Grace & Co.

Lona-Term Disability Income Plan, 874 F.2d

496 (‘8th Cir. 1989), was presented?

2. Did the appellate court err in

declining to consider the issue of whether

social security law was applicable?

TABLE OF CONTENTS

Questions Presented for Review . .

Teme Gf Authorities . ss. 2 ke

oS ae ae ee ae a

Jurisdiction. . Ste

Statutory Provisions Involved. .

Statement of the Case. .

Reasons for Granting the Writ)

WONrr< =

I. THE APPELLATE COURT

ERRED IN CONCLUDING

THAT THE DECISION OF

THE BENEFITS COMMITTEE

WAS NOT ARBITRARY AND

CAPRICIOUS DESPITE THE

LACK OF ANY VOCATIONAL

EXPERT TESTIMONY AS TO

MRS. WADE’S ABILITY TO

PERFORM OTHER WORK... . 12

aus THE APPELLATE COURT

ERRED IN REFUSING TO

CONSIDER THE ISSUE OF

WHETHER SOCIAL

SECURITY LAW WAS

ne. se Sp el le: A

RE aa a, be ae ee Pe eg g

Appendices

A. Opinion of the asthe

gg Pe a aco

B. Order of the District

ee 2 eee ee a Se ORD

C. Burroughs Wellcome Company

Long Term Disability Plan A -23

11

ee

-

ad

a ;

* uy . q * : a - * .

Ria eal a wt te en aici » Pike (a PS nek ott ee a ; 7 a . 7 J ae

P32 - re ate nen ga ee a es ———- "7 ss

D. Employee Retirement Income

Security Act. ...... A -33

E. 42 U.S.c.S. 423 . . . . . ny -37

F. Order of the Appellate

Court Denying Petition for

Rehearing and Suggestion for

Rehearing in Banc .... A -39

-lv-

et ED Se SR ee 2 ne a eee dine mating

TABLE OF AUTHORITIES

Cases Page

Bownan Transportation, Inc. vy.

Ackansas-Best Freight System.

Inc,., 419 U.S. 281, C1974) . .13

, 598 F.2d 1117,

i .~ So < & 5 6 . 22

» 856 F.2d

133S, 1340-41 (9th Cir. 1988) . ~ &

Park vy. Yolpe, 401 U.S.

hi. 49a Sg y 13

» 641 F.

2d 243 «Sth Cir. 1981) . .22

Beuch, 109 S. Ct.

CD 5S. 5 © « .15, 16

Gunderson vy. W.R. Grace & Co,

Lona Term Disability

Income Plan, 874 F.2d 496

CB8th cir.

is = « « ley S07, 86, 19, 81, 2

, 658 F.2d 260

C4th Cir. 1981>. : .22, 26

Heckler_y.camabell. 461 U.S.

458, 103 S.Ct. 1952, 76

L.Ed.2d 66 (1983). .... .18

634 F.Supp. rs CN.D.Cal.

1986). .. oh = ss we ee

/

:

LeFebre v, West |Inghouse

Electrica) Corp, 747 F.2d

[77 4am Cie. 1964)... ...13, 19, 20

, 538 F.2d

IE ESS a i

Smith v. Califano, 592 F.

is Se Ge} er

Tavlor v,. Weinberger, S512 F.2d

OE SS ES ee

Warner vy. Califano, 623 F.2d 521,

(ie ee a es

Wilson v. Califano, 617 F.2d.

fone Caen Ginn 1900? cu. . . « 22.

Statutes

i

tens Mee, Olea CA). «ee @ 6 6 ere

NE EE ee ae a

42 U.S.C. sec. 423 <d> <1) -

a! i el | a Pa) eee

-yvi-

en tha PRE UR

~jo

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the Fourth Circult

(App. A, infra, A-1 -- A-12) and the order

of the district court CApp. B, infra, A-13

-- A-22) are unpubl ished.

JURISDICTION

The petitioner first brought this

action in the Pitt County Superior Court

of North Carolina. The respondent removed

the action to the United States District

Court for the Eastern District of North

Carolina. Jurisdiction was invoked on the

basis of the Employment Retirement Income

Security Act of 1974 (1974), 29 U.S.C.

Sec. 1001 et seq.

On August 15, 1989, the district

court entered an order and judgment

granting the respondent’s motion for

summary judgment.

ae ae a Le ee ee

-2-

On petitioner’s appeal, the United

States Court of Appeals for the Fourth

Circult on May 7, 1990, entered a judgment

and opinion affirming the district court.

On June 18, 1990, the Fourth Circult

denied petitioner’s petition for rehearing

and suggestion for a rehearing in banc.

The Jurisdiction of this court to

review the Judgment of the Fourth Circuit

is invoked pursuant to 28 U.S.C. Sec. 1254

C1).

This case involves 29 United States

Code, sec. 1001 et, seq,, the respondent

having set up a disability plan under sald

statute, dealing with the Employee

Retirement Income Security Act CERISA) (A

=" De

Also involved is 42 United States,

Sec. 423¢d)¢€1)-¢€2) (A>, and -€3), where is

found the definition of disability under

the Social Security Act. The respondent,

in its disability plan, cited said

provision and providéd that the

participant under its plan would be under

a “disabllity" as defined in the

provisions of sald section 423. («A - >).

STATEMENT OF THE CASE

Mrs. Wade was employed by Burroughs

Wellcome in thelr production facility near

Greenville, North Carolina, on December

Mita Vins Ahh 0s Mile edhe

26, 1978, where she worked as a Sterile

Operator untll she was injured on the Joab

on May 29, 1979 (J.A. 16, 17)¢"J.A."

refers to the Joint Appendix filed in the

appellate court). Burroughs Wellcome paid

Mrs. Wade from thelr Sickness and Accident

Plan until she exhausted those benefits

(J.A. 17).and, she having shown no

significant improvement, began paying her

benefits from thelr Long-Term Disability

FO BL BS Ce AADOW a OO AB A NDA AW DOA Ra Nc, 8 He he LR A 0 OA as Ae Sant SI. + wll Has sian

Plan ("the Plan"), which was set up under

the provisions of the Employee Ret!irement

Income Security Act of 1974 CERISA), 29

USCS Sec. 1001, et seq, sald plan ¢J.A. 17

& 40> providing in part:

Total Disability. A

; participant shall be determined

BEST AVAILABLE COPY

-§-

by the Committee to be ‘totally

disabled’ lf ¢1> during the

first year of any period for

which a claim is made

hereunder, the participant is

unable, mentally or physically,

to perform (i> the usual labor

or services required of the

participant as a full-time

employee of the Company and

C11> any other labor oar

services required of the

participant by the Company

taking into account the

participant’s education,

training and experience; or (2)

during the continuation of such

period beyond one year, the

participant is under a

‘disablliity’ as that term is

defined in Section 423 (d) (1)

- €2) CAD, and - (3) of Title

42 ot the United States Code,

as in effect on January 1,

i976.

(J.A. 40)

The parties agree that the physicians

who examined Mrs. Wade from 1979 through

1983 all concluded that she was totally

disabled as defined by the the Plan, and

thus entitled to receive weekly long-term

disability benefits in the amount of

$97.48.

On September ii, 1984, Mrs. Wade was

examined by Dr. Lee A. Whitehurst, of the

=¢=

notes reflect his postulations that Mrs.

Wade would be able to do sedentary work,

although he otherwise recommended that she

be given a permanent partial disability

base (J.A. 34). Thereafter, the benefits

committee continued Mrs. Wade as totally

disabled under the Plan (J.A. 17,

One year later, on September 16,

i8>.

1985S, Dr.

Whitehurst again made similar findings

CJ.A.

i8, 19, 34), Including the

fol lowing:

» « « She relates that she

continues to have symptoms as

she did when she was last seen

CJ.A. 34, p. 1). . . that she

has been unable to return to

work because of the low pain in

her back and in her left arm.

» »« and numbness in her leg

Cld, p. 2). . . that she

continues to have difficulty

with her left arm---that x-rays

show a change in her left

elbow---an area of degeneration

(ld, p. 2)---I would recommend

that the recommendations given

on the report of September i1,

1984, should be followed in

regard to her permanent partial

disablliity, If she does not

wren Ab

ee ee eee

ew et relies RR ae he Lt

ee ee es

=,

feel that her symptoms warrant

surgical intervention. .

(J.A. 34, pp. 1 & 2).

Thereafter, on October 10, 1985, Kenneth

W. Kidd, the chalrman of the benefits

committee, notified Mrs. Wade by letter that,

based on the medical examination, she was no

longer totally disabled and that her benefits

would cease. This letter also advised Mrs.

Wade of her appeal right (J.A. 18, 19, 32).

On October 25, 1985, Burroughs We! 1come

further notified Mrs. Wade that because she

was no longer totally disabled, and because no

sultable opening was avallable for her, she

was terminated from employment with Burroughs

| Wellcome as of October 10, 1985 (J.A. 19, 33).

Maar eeisee 9 -d 2o-WHEKs > &

At the request of Mrs. Wade’s attorney,

Mr. Kidd, on October 29th, forwarded a copy of

Dr. Whitehurst’s medical evaluation, and

stated further that:

Total disability under our long

term disabllity plan uses the

same test as defined under

eth A ae A a ie Ph ca eatin OE We a

afin

Section 423 (dd) (1)- €2) CAD

and (3) of Title 42 of the

United States Code as in effect

on January i, 1976.

Based on Dr. Whitehurst’s

evaluations I have determined

she is not totally disabled.

1 OJ.A. 19, 20, 34).

Mrs. Wade, then, pursuant to company

rules, gave notice of appeal to the

Burroughs Wellcome Benefits Committee on

November 8, 1985 (J.A. 20, 48).

Mrs. Wade was shortly thereafter

advised by Mr. Kidd that the Benefits

Committee wanted further medicals,

following which, pursuant to Mr. Kidd’s

instructions, Mrs. Wade visited Dr. Paul

Burroughs in Raleigh (J.A. 21. 49).

After also reviewing Mrs. Wade’s records

and examining her, Dr. Burroughs mirrored

Dr. Whitehurst’s opinion as to disability,

also postulating that she should be able

to do sedentary work (J.A. 51). Based on

this report, Mr. Kidd, on January 16,

ial

PO See ee ee TT ee

Fa ee Te ee eT ey

Di aan

ae be el od TW es eS ae Ba Sn

DS et oe BD

an

1966, again advised Mrs. Wade that she was

no longer eligible for disabllity ¢J.A.

21, 22, 50>. On February i4th thereafter,

pursuant to Mrs. Wade’s request, Mr. Kidd

forwarded the Dr. Burroughs evaluation,

and for an apparent "Indication of the

findingS made to justify his decision," he

stated that “Dr. Burroughs conclusion was

that Mrs. Wade ‘should be able todo

sedentary work. . .”%; To remain eligible

for plan benefits, Mrs. Wade must be

unable to engage in any substantial

gainful employment as a result of her

disabllity. .. ." Mr. Kidd further

indicated that that message concluded the

appeal (J.A. 22, S1).

Dr. Burroughs report (J.A. Si)

indicated that, without any previous

medical records, he first conferred with

the plaintiff and then examined her (J.A.

52, 53, p. 1), he then took x-rays and

|

-10-

‘noted some changes in the lower back area

Jand deformity in the elbow (p. 2). He

then shows no difference in the lumbar

spine area between his x-ray and that of

jr. Crisp In 1979 <p. 2). After

Indicating a problem with the left elbow, :

he, in his RECOMMENDATION, stated that:

The reason for the permanent

disabliity status Is not clear

on the basis of the Iimited

information now avallable to

me. Additional Information

will be sent and with it’s

receipt, the completion of the

disabllity evaluation may be

possible.

1-9-86--ADDENDUM: Burroughs

Wellcome sent over the medical

records from Mr. Briley which

date to 1979. Examinations by

Dr. Whitehurst, and by Dr.

Crisp were present as well as

by Dr. Bill Fore.

No specific reason for complete

disabllity rating Is noted In

the records from Burroughs

Wellcome. On the basis of this

examination, a 10% disabllity

status of the elbow, as wel! as

perhaps S-10% disabllity of the

back could be justified. I do

not believe that the patient

will be able to do any heavy

working due to these factors

but should be able to do

} solely on the medical evaluations of Dr.

-j{i-

sedentary work on the basis of

Information avallable to me.

(J.A. 22, 53>.

The plaintiff Mrs. Wade thereafter

| filed this action on November 3, 1988,

| alleging wrongful discharge from the

+ long-term disabllity program of the

: defendant, Burroughs Wellcome Co. (J.A.

) 16-23).

REASONS FOR GRANTING THE WRIT

I. THE APPELLATE COURT ERRED

IN CONCLUDING THAT THE

DECISION OF THE BENEFITS

COMMITTEE WAS NOT

ARBITRARY AND CAPRICIOUS

DESPITE THE LACK OF ANY

VOCATIONAL EXPERT |

TESTIMONY AS TO MRS.

WADE’S ABILITY TO PERFORM

OTHER WORK.

The decision by the benefits

committee to terminate Mrs. Wade’s

benefits under the Burrouchs Wellcome Long

Term Disability Plan (the Plan) was based

a : C Ree MN eT ES — re MeN hel

-12-

Whitehurst and Dr. Burroughs. Such a

decision was arbitrary and capricious,

|

igiven the Plan’s definition of disability. |

|

Under the Plan, a participant is

totally disabled if, after one year of

+ ea

being unable to perform his prior job with

the company, he is also unable to perform

ee

}any other kind of substantial gainful work

in the national economy considering his

“age, education, and work experience." A

review of the medical reports of Dr.

Whitehurst and Dr. Burroughs shows no

indication that the relevant factors of

age, education, and work experience were

; considered. Their conclusions, therefore,

that Mrs. Wade could perform light or

sedentary work cannot be held to

constitute the substantial evidence

necessary to support the decision of the

benefits committee.

eT eee

-1{3-

While the arbitrary and capricious

) standard of review is a narrow one, see

) LeFebre vy. Westinghouse Electrica) Corp,

| 747 F.2d 197, 204 (4th Cir. 1984), "Ca)

reviewing court must ‘consider whether the

decision was based on a consideration of

) the relevant factors.’" Bowman

Transportation, Inc, v. Arkansas-Best

\ Freight System, Inc, 419 U.S. 281, 285

(1974) Cquoting Citizens to Preserve

Overton Park v. Volpe, 401 U.S. 402, 416

€1971)). Moreover, any “inquiry" by the

reviewing court Into the facts must also

| be “searching and careful." Bowman

| Transportation, Inc, v, Arkansas-Best

Freight System, Inc. supra, 419 U.S. at

28s.

Despite this lack of any showing of

rellance upon the relevant factors, the

Fourth Circuit affirmed the district

court’s granting of Burroughs We! |lcome’s

-14-

}mot ion for summary judgment. It

~~ |

— pote ee ee

tan! jaa BC se ah alee

conc ]uded:

Hence, the only remaining

question is whether the

Committee’s determination that

Wade was not "totally disabled"

was reasonable. We think it

was. The plan’s definition of

total disability provided that

after one year, a claimant

would not be eligible for

benefits lf he could perform

any substantial gainful work

that exists in the national

economy. In light of Dr.

Whitehurst’s two reports saying

that Wade was capable of

performing sedentary work, and

the Committee’s solicited

report of Dr. Burroughs

corroborating that conclusion,

lt was not unreasonable for the

Committee to conclude that Wade

was no longer "totally

disabled" under the plan’s

definition.

Wade v, Burrouchs Wellcome, No. 89-1542 at

6 (4th Cir. 1989) (footnote omitted).

It then determined that it was

"unnecessary" to consider Mrs. Wade’s

other objections to the decision of the

Benefits Committee, and in particular her

specific assertion regarding the "fallure

_ SS = - Oe rh

i

-15-

to seek the opinion of a vocational

expert." This was plain error on the part

Sof the Fourth Circult. The requirement of

the testimony of a vocational expert as to

a plan participant’s ability to engage In

any other work goes right to the heart of

any “reasonable” decision even under the

arbitrary and capricious standard which

admittedly governs this case. Firestone

Tire & Rubber Co, v. Bruch, 109 S. Ct.

948, 956 (1989). It is the position of

the petitioner herein that without a

consideration of testimony from a

vocational expert, no decision by the

Benefits Committee may withstand even the

limited standard of review which governs

herein.

Such was the position of the Eighth

Circult Court of Appeals in Gunderson v.

WR, Grace & Co, Long Term Disability

Income Plan, 874 F.2d 496 (8th Cir. 1989).

eens :

«1g.

The disablilty plan therein was similar to

‘that of Burroughs Wellcome In that It

contained two categories of

I disabi }ity--namety the inability to

Jperform one’s prior job and subsequently

the inability to perform any job for which

he “is or becomes reasonably qualified by

: training, education or experience." Id.

at 498 n.2. There was no dispute between

the parties that Gunderson was totally

7 disabled under the first category of the

}plan. He could not perform his prior job.

Id. at 498. The district court found

> there was not substantial evidence to

)} support the determination by plan

administrators that the employee Gunderson

) was not totally disabled under the second

I category. Id. On appeal, the Eighth

: Circuit affirmed that determination. It

| noted that Firestone Tire & Rubber Co. v.

3 Bruch, 109 S. Ct. 948 (1989), which

oi?

establishes a de novo standard of review

Jin ERISA cases where the benefit plan does

not grant discretionary authority to the

J aaministrator, had been handed down in the

J interim between the district court opinion

and its own decision. Nevertheless, it

found that "the Plan’s decision to

terminate Gunderson’s benefits fails under

Jeither an arbitrary and capricious

@ standard or under a de novo standard."

» Gunderson v. W.R. Grace & Co, Long Term

7 Disability Income Plan, supra, 874 F.2d at

| 498-99 n.3.

The plan administrators sought to

rely upon opinions of treating physicians

that Gunderson was no longer disabled.

Id. at 499. The court, however, held that

such reliance was not sufficient. It

declared:

We agree that before

terminating benefits, the Plan

should have obtained a

es wv

ee

nan setts

-18-

vocational expert’s opinion to

determine |f Gunderson is

presently capable, In light of

his physical impalrment, to

perform “any occupation." See

Jenkinson v. Chevron

Corporation, 634 F.Supp. 375,

379 (N.D.Cal.1986) (clting

Heckler vy, Campbe]], 461 U.S.

458, 103 S.Ct. 1952, 76 L.Ed.2d

66 (1983)>. Without that |

information, we cannot say |

there was substantial evidence

to support the Plan’s decision.

See Jenkinson, 634 F.Supp. at

379-80.

Jl1d. ‘footnote omitted.

The Elghth Circuit specifically cited

Tto a federal district court opinion

> Jenkinson v. Chevron Corp., 634 F.Supp.

9375 «N.D.Cal.i1986>. In this latter

decision, the district court also

Tconsidered the lack of vocational expert

Stestimony on the question of reasonable or

Ssubstantial evidence in support of a

Sdecision terminating disabllity benefits.

iThe long-term disability plan of Chevron

was similar to that of Burroughs Wellcome

1Co. in the instant case as well as the

*

W.R. Grace & Co. plan in Gunderson v. W.R.

-19-

§ Grace & Co, Long Term Disabllity Income

HPlan, supra. Total disability was defined

as an inabliity to perform one’s prior job

for the first twenty-fouc months and,

thereafter, an inability “to perform any

occupation for which the Member is

= qualified or may reasonably become

qualified by reason of education, training

or experience.“ Jenkinson v. Chevron

Corp., supra, 634 F.Supp. at 378. The

court, Jd. at 380, applied the substantial

evidence test, specifically relying on the

definition of that term as set forth by

this court in LeFebre v. Westinghouse

§ Electrical Corp. supra, and held that

insufficient evidence was offered to

support the decisio® to terminate

benefits. Id at 378-79. The court added:

Logic dictates that a

determination as to whether the

"any occupation" definition of

disabllity has been met by a

claimant requires consideration

of two types of evidence.

-20-

First, there must be evidence

as to the medical condition or

degree of impairment of the

claimant. Additionally, there

must be evidence as to the

existence of Jobs for those of

the claimant’s qualifications,

or potential qualifications, In

tight of his or her impairment.

Id. at 379 (footnote omitted). “The

vocational evidence in this case was far

from substantial," said the court. Id,

Mere conclusory statements by a physician

were not sufficient. Jd at 378-79, 380.

The court added:

In short, the “any occupation"

test adopted in the plan

requires that the fiduciary

give meaningful consideration

to plaintlff’s vocational

options. Such consideration

cannot be rendered unless the

record contains competent

evidence linking the claimant’s

medical condition and other

quallfications to his ablilty

to perform specified Jobs. In

this case, the record is devoid

of evidence which a reasoning

mind would accept as sufficient

to support the conclusion that

there were jobs plaintiff could

have performed. See LeFebre v.

West inghouse Electrical Corp,

747 F.2d 197, 208 (4th

eal

— eee

-21-

Cir.1984) (defining

“substantial evidence").

Id. at 380.

While the lanquage of the disability

plans in Gunderson and Jenkinson is not

@ precisely identical to that of the

# Burroughs Wellcome Co. plan, the

similarities are sufficient to permit the

application of the rationales in both of

the above decisions. The omission of the

word “training” from the Burroughs

Wellcome Co. plan does not, as the

district court haein oembiuded,

"distinguish" either Gunderson or

Jenkinson ‘See p. 4 of the trial court’s

Order; A - 13>. It must be remembered

that the definition of disability under

the Plan !s merely the Incorporated

statutory language of the Social Security

Act, 42 U.S.C, sec. 423 (d) (2) CAD, which

act requires that “age, education, and

work experience" be considered.

-22-

| Despite the lack of any reference to a

clalmant’s “training,” numerous courts

Ihave concluded that total disability under

42 U.S.C. sec. 423¢d) (Addendum) cannot be

determined without reliance on the

test Imony of vocational experts. See,

e.g., Burkhart v, Bowen, 856 F.2d 1335,

1340-41 (9th Cir. 19868); Ferquson v.

Schweiker, 641 F.2d 243, 247-48 (Sth Cir.

1981>; Warner v. Califano, 623 F.2d 521,

932 (8th Cir. 1981); Bover v, Califano.

598 F.2d 1117, 1119 (8th Cir. 1979); Hall

vy. Harris, 658 F.2d 260, 266, 267 ‘4th

Cir. 1981); Wilson v. Califano, 617 F.2d.

§ 1050, 1053-55 ¢4th Cir. 1980); Smith vs

a Califano, 592 F. 2d. 1235, 1236-37 (1979);

Tavlor v. Welnberger, 512 F.2d 664, 666-68

(4th Cir. 1975).

It is apparent, therefore, that the

View of the Fourth Circult herein Is

markedly divergent from that of the Elghth

‘ye oe ®

> ale gata

’

E

|

}

|

-23-

Circult in Gunderson v, W.R, Grace & Co,

Long-Term Disability Income Plan, supra,

and from at least one district court from

the Ninth Circuit, Jenkinson v. Chevron

Corporation, supra. There can be no doubt

that given the scope and national impact

of ERISA upon millions of workers,(see 29

U.S.C. Sec. 1001 (a> - (c)), there is a

need for a uniform interpretation of the

provisions which govern it. For this

reason, it is imperative that the Court

review the questions presentea here. The

disability plan of Burroughs Wellcome Co.

ls not unlque. Its definition of "total

disabllity" is similar to that of other

employee welfare benefit plans which have

been put into effect by other employers

While as yet there is only direct conflict

=*i—

between two circuit courts of appeals on

the issue of the necessity for expert

vocational testimony, there is a

likelihood that this confusion will grow. |

The grant of the writ of certiorar! can

resolve this dispute and end the

confusion.

Eke THE APPELLATE COURT ERRED

IN REFUSING TO CONSIDER .

THE ISSUE OF WHETHER

SOCIAL SECURITY LAW WAS

APPLICABLE.

The Fourth Circult erred when it

dismissed Mrs. Wade’s assertion that

social security case law was applicable in

resolving the question of whether the

decision of the Benefits Committee was

supported by reasonable evidence.

The decisional law cited, supra,

relating to the need for a vocational

expert’s testimony in cases where benefits

have been denied by the Social Security

Secretary is not only particularly

-25-

relevant in the instant case but Is also

controlling, given the language of the

Plan, which does not merely follow the |

language of the Social Security Act |

regarding the definition of disability,

but specifically incorporates by reference

that definition. The Plan provides that

safter a participant is unable for one year

to perform his usual labor or service with

the company, “during the continuation of

such period beyond one year, the

participant is under a ‘disability’ as

@ that term is defined in Section 423¢d)

€1)-€2) CAD, and - ¢3) of Title 42 of the

United States Code, as In effect on

i January 1, 1976." (A - 37>. Since

f Burroughs Wellcome Co. elected to

incorporate the statutory definition of

"disability," it is not unreasonable to

apply the governing decisional law that

has interpreted the langquage of that

‘ -26-

definition. That decisional law is clear.

"Ordinarily, the testimony of a vocational

expert is required in order to support a

finding that alternate jobs which the

claimant can do exist in the national

economy." Smith v. Califano, supra, 592

F.2d at 1236. While there may be an

exception to such a requirement when the

evidence of ability to perform other jobs

ls so clear as to be “within the common

knowledge and exper lence of ordinary men,

and requires no substantiation by a

vocational expert," see McLamore v.

Welnberaer, 538 F.2d 572, 575 (4th Cir.

1976), that narrow exception is

reluctantly applied. See Hall _v. Harris,

Supra, 658 F.2d at 267, Wilson v.

Califane, supra, 617 F.2d at 1054-55;

Smith v. Califano, supra, S92 F.2d at

1236-37. Furthermore, the conclusory

statements by the physicians who examined

jn

|

|

|

Mrs. Wade, to the effect that she could

perform other light or sedentary work in

the natlonal economy ‘App. 34, 52) do not

meet the specificity required in the

exception in McLamore v. Weinberger,

Supra, where the Social Security Secretary

expressly considered the plan

participant’s age, education, the relative

minor nature of his medical condition, and

the availability of specific jobs for

which the participant was qualified. 538

F.2d at 574-75.

As the Burroughs Wellcome Co.

disablliity plan incorporates the social

security definition of “disabiility" It

would hardly appear justified in

concluding that the testimony of a

vocational expert is not needed in order

to support a decision of the plan

administrator even under the | imited

standard of review apolied herein. The

_—

~28-

Fourth Circuit’s refusal to give any

consideration to the objection of Mrs.

Wade regarding the applicability of social

security case law was, therefore, error.

WHEREFORE, this petitioner

s respectfully requests that this Court

@ grant this petition and Issue a Writ of

Certiorari to the Fourth Circuit Court of

Appeals.

Respectfully submitted, this the 17th

= day of September, 1990.

ee wat

Willis A. Talton

Attorney for Petitioner

Post Office Box 390

308 S. Evans Street

Greenville, N.C. 27858

TEL: 919-752-6888

BEST AVAILABLE COPY

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

September Term 1990

BARBARA J. GOURAS ‘WADED,

Petitioner,

v.

BURROUGHS WELLCOME COMPANY,

Respondents.

APPENDIX

Willis A. Talton

Counsel of Record

Post Office Box 390

308 S. Evans Street

Greenville, N.C. 27858

TEL: 919-752-6888

Attorney for Petitioner

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 89-1542

BARBARA J. GOURAS ‘WADED,

Plaintiff-Appellant,

versus

BURROUGHS WELLCOME COMPANY,

Defendant - Appellee

Appeal from the United States District

Court for the Eastern District of North

Carolina, at New Bern. Malcolm J. Howard,

District Judge. (CA-86-137-4-CIV)>

Submitted: January 18, 1990

Decided: May 7, 1990

Afficmed by unpubl !ished per curiam

opinion.

Willls A. Talton, Greenville, North

Carolina, for Appellant. Charles R.

Holton, Laura B. Luger, MOORE & VAN ALLEN,

Durham, North Carolina; John Campion,

Assistant General Counsel, BURROUGHS

WELLCOME COMPANY?, Research Triangle Park,

North Carolina, for Appellee.

Unpublished opinions are not binding

precedent in this circuit. See 1.0.P.

36.5 and 36.6.

&

i

APART AER AMIE AGEL Dey DIGITAL

PER CURIAM:

Barbara Gouras Wade appeals the

district court’s grant of summary judgment

for Burroughs Wellcome Company in this

action under the Employment Retirement

Income Security Act of 1974 (ERISA), 29

U.S.C. Sec 1001 et geq., challenging

Burroughs Wellcome’s discontinuation of

her long-term disability benefits. The

district court granted summary judgment

for Burroughs Wellcome because |t found

the company’s denial of benefits was

supported by substantial evidence and thus

was not arbitrary and capricious.

Although the district court applied the

wrong standard in reviewing the company’s

termination of benefits, we affirm its

udgment upon our application of the

correct standard to the record evidence.

ONE Mv

SNIP Gs PURO Ng

Ie 1h AEE a NN 8 1 ee PR AIO A RI IS

{ ;

Dime MACS EN MGIRS ar NTU

Wade worked as a Sterile

Operator in Burroughs Wel lcome’s

Greenville, North Carolina, production

facility from December 1978 to May 1979,

when she fell] at work and Injured her left

arm and her back. She recelved benefits

under Burroughs Wellcome’s long-term

disability ¢LTD) plan until 1985. In

October 1985, Burroughs Wel 1]1come

terminated Wade’s benefits when the

company’s Benefits Committee determined

that she was no longer "totally disabled"

under the LTD plan’s definition. The plan

provided that after more than a year of

recelving LTD benefits a claimant had to

show a “disablilty" within the meaning of

42 U.S.C. Sec. 423 (d)(1)-C€2)¢€A), and

-(3), which defines "disability" for

purposes of the Social Security Act, In

order to continue to be eligible to

recelve benefits.! Under the Social

p-3

:

¥

*

b:

AE TUG RNs aS

Security Act definition, a claimant is not

totally disabled if she can perform any

substantial gainful work that exists In

the national economy. Although the plan

borrowed the Social Security Act’s

definition, it provided that

{t)he determination of whether

or not a participant Is totally

disabled shall! be made by the

Committee, based upon such

evidence as the Committee deems

necessary or desirable. The

Committee may require one or

more physical examinations of

the Participants by a physiclan

selected or approved by the

Committee to determine the

commencement or continuation of

total disability.

Joint Appendix at 42.

The Benefits Committee’s decision to

discontinue Wade’s benefits was based on

the reports of two examining physicians

who concluded that she could perform

sedentary work. In September 1984,

orthopedic specialist Dr. Lee Whitehurst

examined Wade and found that at that time

she had, at most, a partial (10%)

permanent disablility in her left arm and

that she was capable of performing

sedentary work. Whitehurst examined Wade

again one year later and reached the same

conclusions. Acting on these reports, the

Chairman of Burroughs Wellcome’s Benefits

Committee notified Wade in October 1985

that her LTD benefits had been terminated

after reevaluation of her eligibility for

them.2 Wade exercised her right of appeal!

ot the Benefits Committee. The Committee

then sought the expert opinion of Dr. Paul

Burroughs of the Raleigh, North Carolina,

Bone and Joint Clinic. Dr. Burroughs’

conclusions were substantially the same as

those of Dr. Whitehurcst--that Wade had a

10% disability in her left arm and

"perhaps* a 5% to 10% disability in her

back and that she should be able to do

sedentary work. The Benefits Committee

al

.

thus notified Wade that it had finally

determined, based on Whitehurst’s and

Burroughs’ reports--as well as Wade’s

failure to submit any additional evidence,

that she was no longer eligible to receive

LTD benefits.

Wade sued Burroughs Wellcome in Pitt

County (North Carolina) Superior Court,

seeking reimbursement and reinstatement of

her LTD benefits. Burroughs Wellcome

removed the case to federal district court

and at the close of discovery moved for

summary judgment. The district court

granted Burroughs Wellcome’s motion,

reasoning that the Benefits Committee’s

decision was not arbitrary and capricious

because it was supported by the

substantial evidence of Drs. Whitehurst’s

and Burrough’s medical reports. Wade now

appeals.

II

pr 6

te

~

ap ha iil

Ss SE A FS

Wade claims that the Committee’s

decision to terminate her benefits was

arbitrary and capricious because it was

made based solely on her medical

condition, without reference to other

relevant factors, and because |t was made

without the benefit of a vocational

expert’s testimony. Although we once used

and arbitrary and capricious standard In

reviewing denials of ERISA benefits, see

Berry v, Ciba-Gelay Corp,, 761 F.2d 1003

(4th Cir. 19865), and LeFebre v,

West Inghouse Electric Corp., 747 F.2d 197

(4th Cir. 1984), the Supreme Court has now

made it clear that such denials must be

“revlewed under a de novo standard unless

the benefit plan gives the administrator

or fiduciary discretionary authority to

determine eligibility for benefits or to

construe terms of the plan." Firestone

Tire & Rubber Co, v. Bruch, 109 S. Ct.

p-?

948, 956 (1989). In the latter case,

where the plan gives the trustee

discretion to Interpret its critical

terms, a court should apply the

deferential “abuse of discretion" standard

and not disturb the trustee’s

interpretation if it is a reasonable one.

Id. at 954.

The threshold question In this case,

then, Is a matter of contract

interpretation: Has the plan given the

Benefits Committee discretion "to

determine eligibility for benefits or to

construe terms of the plan?" Jd. at 956.

We think this plan clearly vested in the

Benefits Committee the discretion to

determine “total disability" and, thus,

eligibility for LTD benefits. That grant

of discretion is found In the provision

stating that "(t]he determinat§on of

whether or not a participant Is totally

A-8

disabled shall be made by the Committee,

based upon such evidence as the Committee

deems necessary or desirable." Joint

Appendix at 42.

Hence, the only remaining question is

whether the Committee’s determination that

Wade was not “totally disabled" was

reasonable.3 We think it was. The plan’s

definition of total disability provided

that after one year, a claimant would not

be eligible for benefits if he could

perform any substantial gainful work that

exists in the national economy. In Ilght

of Dr. Whitehurst’s two reports saying

that Wade was capable of performing

sedentary work, and the Committee’s

solicited report of Dr. Burroughs

corroborating that conclusion, it was not

unreasonable for the Committee to conclude

that Wade was no longer “totally disabled"

under the plan’s definition.

Under the standard we must use, we

find It unnecessary to address Wade’s

specific objections to the Benefits

Committee’s weighing of the evidence

before it and its claimed fallure to seek

the opinion of a vocational expert or to

apply decisional law under the Social

Security Act. Nor need we discuss Wade’s

further contentions that the district

court improperly considered evidence not

before the Benefits Committee and that

this court should apply Social Security

law. Rather, we affirm the judgment of

the district court on the ground that the

plan gave the Benefit Committee discretion

to determine total disability and the

Committee did not abuse that discretion in

this case. We dispense with oral argument

because the facts and legal arguments ace

adequately presented in the materials

before the court and oral argument would

q

f\-10

not significantly ald the decisional

process.

1 The plan defined "Total

Disab! lity" as follows:

A participant shall

determined by the Committee to

be totally disabled if (1) the

participant is unable, mentaily

or physically, to perform (1>

the usual labor or services

required of the participant as

a full-time employee of the ’

Company, and (11) any other

labor or services required of

the participant by the Company

taking Into account the

participant’s education,

training and experience or (2)

during the continuation of such

perlod beyond one year, the

participant is under a

disabllity as that term is

defined in Section

4236 d)(1)9-C2)(A), and -<3) of

Title 42 of the United States

Code, as in effect on January

‘. Sees

Joint Appendix at 41-42.

2 Burroughs Wellcome later

terminated Wade’s employment because it

A-414

had no position for a person of Wade’s

qualifications. That employment action is

not at issue here.

3 Wade has not suggested that the

Benefits Committee operated under an

actual or possible conflict of Interest, a

factor that in appropriate cases might

warrant a finding of abuse of discretion.

See Firestone, 109 S. Ct. at 956.

ROR Eas eres Ne A Set Ow

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

NEW BERN DIVISION

CASE NO. 88-137-CIV-4-H

BARBARA J. GOURAS CWADE),

Plaintiff,

>

)

»)

v. > ORDER

BURROUGHS WELLCOME COMPANY, >

Defendant. »>

This matter is before the court on

the motion of the defendant for summary

Judgment pursuant to F.R.Civ.P. 56.

Plaintiff was granted two extensions of

time In which to reply to the motlon. On

July 24, 1989, after the second extension

had expired, plaintiff flled a motion for

yet another extension of time, and

contemporaneously filled a memorandum in

opposition to the defendant’s motion.

Without specifically rullng on the request

for an extension, the court has considered

the response of the plaintiff. For the

reasons indicated below, the court wil]

grant the defendant’s motion for summary

Judgment and dismiss this action.

STATEMENT OF THE CASE

Plaintlff flled her complaint on

November 3, 1986, In the General Court of

Justice, Superior Court Division, of Pitt

County, North Carolina, seeking

reinstatement In defendant’s long term

disability plan. On December 12, 1988,

defendant removed this action to this -

court, noting this court’s jurisdiction

over the subject matter pursuant to the

Employee Retirement Income Security Act of

1974 (hereafter “ERISA") 29 U.S.C. sec.

1001 et seq, Discovery in this action

closed on April 28, 1989. Defendant filed

the instant motion on May 30, 1989, and

the matter is now ripe for ruling.

FACTS

omen . , q

. ‘

Plaintiff began working for defendant

at defendant’s plant in Greenville, North |

Carolina on December 26, 1978. On May 29,

i979, piaintiff suffered an injury at

work. Plaintiff first received benefits

under defendant’s Sickness and Accident

Plan. After exhausting those benefits, |

plaintiff began receiving benefits under

defendant’s Long Term Disability Plan )

(hereafter "LTD Plan"). She received |

these benefits in the amount of $97.48 per

week until she was terminated. In 1984,

plaintlff was examined by orthopedic

surgeon, Dr. Lee A. Whitehurst, M.D., who

found her able to perform sedentary work.

In September 1985, the same doctor agaln

reached the same conclusion. On October

10, 1985, defendant notified plaintiff by

letter that based upon the medical

evaluations, plaintiff was no longer

totally disabled, and therefore no longer

A- 15

eligible for benefits under the plan.

- _—

- Sn ee ee ae er Oe

~~ CEOS ARPA HO

This letter also advised plaintiff of her

appeal rights. On October 25, 1985,

defendant notifled plaintiff that because

she was no longer totally disabled, and

because no suitable opening was available

for her, that she was terminated from

employment by defendant as of October 10,

1985. On October 29, 1985, defendant

notified plaintlif£’s counsel that the

determination of ineligibility was based

upon the examinations of Dr. Whitehurst,

and enclosed with the letter coples of Dr.

Whitehurst’s notes. On November 8, 1985,

plaintiff appealed the decision to

terminate her from the LTD Plan, but

submitted no additional evidence in her

behalf. On November 21, 1985, the

defendant notified plaintiff that the

termination decision was being reviewed,

and that an appointment with another

A- 16

*

4 Jr ~ s

‘

« t

!

idic mation seta waht eetiat tact clit ong hyn ein tetas to Satanic > i tpitnmaing Gita inode DY we Ndi aaaes ee ee - mon a - se pn = -

ie I OE en nr NA ALE ELLE ED EAL LE LLL AAO, ee LR ELL ALAA AL OO AS ae hoe —-

- ee Pe ee _ - - - — ——— ; Ere

physician was being scheduled for her.

Plaintiff was examined by Dr. Paul

Burroughs of Raleigh on December 30, 1985.

Dr. Burroughs concluded that plaintiff was

not totally disabled, but capable of

performing sedentary work. On January 16,

1986, defendant notified plaintiff that

her appeal had been rejected and that she

was not totally disabled under the LTD

Plan. In response to a letter from

plaintiff’s counsel, defendant on February

14, 1986 forwarded Dr. Burroughs’ records

to plainitff’s counsel, and reiterated

that the defendant’s Benefits Committee

had offered to consider any additional

evidence that plaintiff had sought to

submit, and that plaintiff had not

submitted any. Finally, in 1988, this

action followed.

DISCUSSION

A-1?

Defendant correctly points out that

the only question before the court is

whether or not the decision of the

defendant’s Benefits Committee to

terminace plaintiff from the LTD plan was

arbitrary and capricious; in other words,

was the decision to terminate plaintiff

supported by substantial evidence. Berry

vy. Ciba-Geigy Corp,, 761 F.2d 1003 (4th

Cir. 1985). Substantial evidence has been

Aefined as “more than a mere scintilla of

evidence that may be somewhat less than a

preponderance,“ or “evidence to justify a

refusal to direct a verdict were the case

before a jury .. .“ DLeFebre v.

Westinghouse Electric Corp,, 747 F.2d 197

C4th Cir. 1984), quoting Laws v.

Celebrezze, 368 F.2d 640, at 642 <4th Cir.

1966).

The record of this case clearly

Indicates that the decision of the

A-18

= —

e a .

. “ by } ' .

Pe ee eee eae ee SY eee ee

defendant to terminate plaintiff from the

LTD plan was not arbitrary and capricious,

but was indeed supported by substantial

evidence. Three different medical

examinations by two different doctors both

concluded that plaintiff was capable of

some gainful employment. Such findings by

competent physicians led the Benefits

Committee to the conclusion that plaintiff

was no longer totally disabled. Plaintiff

claims that the defendant did not consider

vocational evidence when making the

decision to terminate plaintiff from the

LTD plan. In support of this, plaintiff

cites Gunderson v, W.R, Grace Lona Term

Disabliity Income Plan, 874 F.2d 496 <

8th Circ. 1989). Gunderson, however, is

distinguishable. The plan at Issue in

Gunderson specifically made vocational

' evidence relevant in determining the

definition of total disability. The LTD

A-19

plan at issue in this case does not. The

LTD plan makes clear that If the covered

Individual can perform any job in the

national economy, then that individual is

not totally disabled. Such Is the

evidence in this case. The examining

physicians both certified that plaintiff

can perform sedentary work. Indeed, the

record demonstrates that plaintiff has

admitted this to be true. The law of this

circult does not require that a plan

administrator review vocational evidence

before terminating an Individual from a

Plan. LeFebre, supra, Berry, supra. In

Berry, the Fourth Circult held that Clba

Gelgy’s reliance on the statements of

treating physicians alone was permissible.

Therefore, based upon the applicable

standards of review and the law of this

circuit, substantial evidence existed to

Justify the decision by defendant to

A- 20

terminate plaintiff from the LTD plan. As

well, the Benefits Committee Invited

plaintiff to submit additional evidence

before making a final ruling. Certainly

she could have proffered vocational

evidence at that time. This, however, she

chose not to do. Accordingly, for all of

these reasons, there exists no genuine

Issue of material fact, and the defendant

ls entitled to judgment as a matter of

law. Therefore, summary judgment is

proper for the defendant.

Plaintiff also claims that defendant

applied an erroneous standard of law in

lts decision to terminate plaintiff from

the LTD plan. The court finds no evidence

to support this argument whatsoever. As

Stated above, the defendant corrected

stated the applicable standard of law, and

the evidence Is that defendant followed

that law when terminating plaintiff from

f-2s

fra 2h: 6

tae

2

Me

pl

at a et

‘

—

re Nt

en

nee ale tT 6 AOE I ELLA NOT

SO AO TRE EE OO

the LTD plan. No further consideration of

this argument lis warranted.

In summary, it Is hereby ORDERED that

the motion of defendant for summary

Judgment pursuant to F.R.Clv.P. 56 Is

GRANTED. Accordingly, this action Is

DISMISSED.

This the 14th day of August, 1989.

s/ Malcolm J. Howard

United States District Judge

AT GREENVILLE, NORTH CAROLINA

#23

Ai- 22

» haere a)

ce oka Sa

iytetis

Stee

t

| rn

CONFORMED: Including amendments

through October i3th

BURROUGHS WELLCOME CO.

LONG-TERM DISABILITY PLAN

Burroushs Wellcome Co. hereby amends its

Long-Term Disability Plan, effective

January i, 1976, to read in Its entirety

as fo] lows:

Ca) Board of Directors. “Board of

Directors" means the Board of

Directors of the Company as from

time to time constituted.

(b> Committee. "Committee" means

the persons appointed by, and

\ ‘ions en goo

Ce ne nme oe

penn ae cere en = er mn ne "Tes coladinesains sah Sinan: ihch milan tae teuarcime\ nme aaah Re IIR EI ee

ened

nner aren

ie all oll

ATER FI

PPLE IL OT

>

ee ee

Rr TT mn etme a oes

Ce)

Cf)

who shall serve at the pleasure

of, the Board of Directors to

administer this Plan and to

review participants’ petitions

regarding benefits under this

Plan. For purposes of ERISA,

the Committee shall be deemed to

be the “administrator” with

regard to this Plan.

ERISA “ERISA" means the

Employee Retirement Income

Security Act of 1974, as now In

effect and as may be hereafter

amended.

Full-time Employment. A person

is In the “full-time employment"

or is a “full-time employee" of

the Company if (1) such person

is employed by the

A- 24

of

2 .. =Aye> = ~ ~~

: so : —<——

8 -- —

Company; ¢2>) the usual service

for which such person is

compensated by the Company is

for at least 20 hours per week;

and ¢€3) the duration of such

person’s employment with the

Company, as established between

such person and the Company at

the commencement thereof, Is not

for a period of less than 12

months. An employee who is on a

Company-approved leave of

absence without pay and who was

a full-time employee immediately

prior to such leave shal]

continue to qualify for benefits

under and subject to all other

terms and conditions of this

Plan for any total disability

occurring during such leave.

A- 25

en ee

_—! —,

Cg)

Participant. Each full-time

employee of the Company who was

a participant in the Company’s

Long-Term Disability Plan as it

existed on the day Immediately

preceding the effective date

hereof, shall continue to be a

participant of this Plan, as

amended. Except as provided

hereinafter, each other

full-time employee of the

Company shall become a

participant of this Plan on the

first day of the month

coincident with or next

following his commencement of

continuous full-time emp] oyment

with the Company. An employee

of the Company whose terms and

conditions of employment are

covered by a collective

A- 26

CK)

bargaining agreement shall not

become a participant in this

Plan, except and then only to

the extent such collective

bargaining agreement

specifically provides for

participation in this Plan.

Total Disability. A participant

shall be determined by the

Committee to be "totally

disabled" if ¢1>) during the

first year of any period for

which a claim is made hereunder,

the participant is unable,

mentally or physically, to

perform (i) the usual] labor or

services required of the

participant as a full-time

employee of the Company, and

C11) any other labor or services

A-27

i?

Ll", , eed ae

ee

5 Oe TT ee ED Se SE Oe ee ee eee ee

ate ee

+

a a a?

ern Pe,

2 a

(ee Pre:

an a dle vel

eg ah oe, eR

ee et eee ran ane ot Rn ee

required of the participant by

the Company taking into account

the participant’s education,

training and experience or (2)

during the continuation of such

perlod beyond one year, the

participant is under a

disabllity as that term is

defined in Section

423(d)(1)-€2)(A), and -¢3) of

Title 42 of the United States

Code, as in effect on January 1,

1976. The determination of

whether or not a participant is

totally disabled shal! be made

by the Committee, based upon

such evidence as the Committee

deems necessary or desirable.

The Committee may require one or

more physical examinations of

the Participant by a physician

selected or approved by the

A- 2

nas

hom eworvaey pnw temmnare ee

. y oe,

saaciientioaiaaaaanten bated PATE OEIOE EE OREN

Committee to determine the

commencement or continuation of

total disabllity. ---

Ca) BENEFIT PERIOD. To be eligible

for benefit payments under this

Plan, the participant must have

received the maximum benefits

payable pursuant to the

Company’s Sickness and Accident

Plan, and must thereafter be

totally disabled, from the same

cause or directly related

causes, continuously; provided,

however, that continuity of

total disablliity due to the same

cause or directly related causes

shall not be considered broken,

lf Interrupted one or more times

Ar 29

a

erty

scmandinamatiamneeamaepaeimmeinamcnmaeltiamien a

rere mance ceteeennernn Sonne

\

’

.

conte metee \ btm. ee ed

peer ey tr earn Sea sass a= mre aa ? —

er ce oiled a

ee me ay aee y

oT

by less than two consecutive

weeks of full-time employment

with he Company or by

rehabilitative employment.

Benefits, as provided in

paragraph 2¢b), below, shall be

payable for the period of

continuous total disabliity

commencing with the first day of

total disabllity followlng the

last day for which payment was

made of the maximum beneflts

payable pursuant to the

Company’s sickness and Accident

Plan, and terminating as of the

last day of the month during

which the earliest of the

following occurs:

€1> The death of the

participant;

a

30

Cb)

Cil> The cessation of

continuous total disability

of the participant; or

Cii1> The termination of the

Plan.

Claims Procedure. The Committee

shall have authority to construe

any ambiguities or reconcile any

Inconsistencies contained in the

provision s of this Plan In such

manner and to such extent as the

Committee, in its sole

discretion, may determine, and

any such action

of the Committee shall be

binding and conclusive upon al!

A- 31

PIL TT FT PIR IE MEMES Ie

epee ere eagin Pat ae a! Ma Te Bee aoe Le . Ams

participants. The Committee

shali make all determinations as

to the right of any persons to a

benefit under this Plan. Any

denial by the Committee of the

claim for benefits under thsis

Plan by a participant shall be

stated in writing by the

Committee and delivered or

mailed to the participant; and

such notice shall set forth the

specific reasons for the denial.

In addition, the Committee sha}!

afford a reasonable opportunity

to any participant whose claim

for benefits has been denied for

a review of the decision denying

the claim. The determination of

the Committee upon review shal!

be binding and conclusive.

Tr) Ar ws ANTS ee, tS

es. a a

RETIREMENT INCOME SECURITY

29 USCS Sec. 1001

PROTECTION OF EMPLOYEE BENEFITS RIGHTS

GENERAL PROVISIONS

Sec. 1001. Congressional findings and

declaration of Policy

Ca> Benefit plans as affecting Interstate

commerce and the Federal Taxing power.

The Congress finds that the growth In

size, scope, and numbers of employee

benefit plans inr ecent years has been

rapid and substantial; that the

operational scope and economic impact of

such plans is increasingly interstate;

that the continued well-belng and security

of millions of employees and thelr

dependents are directly affected by these

plans; that they are affected with a

national public Interest; that they have

become an important factor affecting the

stabllilty of employment and the successfu!

development of industrial relations; that

they have become an important factor in

commerce because of the interstate

character of their activities, and of the

activities of thelr participants, and the

employers, employee organizations and

other entities by which they are

established or malntained; that a large

volume of the activities of such plans is

carried on by means of the malls and

instrumentalities of Interstate commerce;

that owlng to the lack of employee

information and adequate safeguards

concerning thelr operation, it is

desirable in the interests of employees

and thelr beneficiaries, and to provide

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for the general welfare and the free flow

of commerce, that disclosure be made and

safeguards be provided with respect to the

establishment, operation, and

administration of such plans; that they

substantially affect the revenues of the

United States because they are afforded

preferential Federal] tax treatm ent; that

despite the enormous growth in such plans

many employees with long years of

employment are losing anticipated

retirement benefits owing to the lack of

vesting provisions in such plans; that

owlng to the inadequacy of current minimum

standards, the soundness and stability of

plans with respect to adequate funds to

pay promised benefits may be endangered;

that owlng to the termination of plans

before requisite funds have been

accumulated, employees and their

beneficiaries have been deprived of

anticipated benefits; and that it Is

therefore desirable in the interests of

employees and their beneficiaries, for the

protection of the revenue of the United

States, and to provide for the free flow

of commerce, that minimum standards be

provided assuring the equitable character

of such plans and thelr financial

soundness.

(b>) Protection of interstate commerce and

beneficlarles by requiring disclosure and

reporting, setting standards of conduct,

etc., for fiduciaries. It is hereby

declared to be the policy of this Act to

protect interstate commerce and the

Interests of participants in employee

benefit plans and their beneficiaries, by

requiring the disclosure and reporting to

particlpants and beneficiaries of

financial and other information with

p-34

——-

respect thereto, by establishing standards

of conduct, responsibllility, and obligation

for fiduciaries of employee benefit plans,

and by providing for appropriate remedies,

sanctions, and ready access to the Federal]!

courts.

Cc) Protection of interstate commerce,

the Federal taxing power, and

beneficiaries by vesting of accrued

benefits, setting minimum standards of

funding, requiring termination insurance.

It is hereby further declared to be the

policy of this Act to protect interstate

commerce, the Federal taxing power, and

the interests of participants in private

pension plans and thelr beneficlarles by

improving the equitable character and the

soundness of such plans by requiring them

to vest the accrued benefits of employees

and by requiring plan termination

insurance.

(Sept. 2, 1974, P.L. 93-406, Title I,

Subtitle A, Sec. 2, 88 Stat. 832.)

Sec. 100ib. Findings and declaration of

policy.

Ca) Findings. The Congress finds that--

€1> single-employer defined benefit

pension plans have a substantial

Impact on interstate commerce and are

affected with a national interest;

C2) the continued well-being and

retirement income security of millions

of workers, retirees, and thelr

dependents are directly affected by

such plans;

(3> the existence of a sound

termination Insurance system is

fundamental to the retirement income

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security of participants and

beneficiaries of such plans; and

€4> the current termination insurance

system in some instances encourages

employers to terminate pension plans,

evade thelr obligations to pay

benefits, and shift unfunded pension

liabllities onto the termination

insurance system and the other

premlium-payers.

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42 U.5.C, 423

C1>€ADd

"The term ’disabllity’ means---inabllity

to engage in any substantial gainful

activity by reason of any medically

determinable physical or mental

impairment which can be expected to

result in death or which has lasted or

can be expected to last for a continuous

period of not less than 12 months; or

Cnot pertinent>)."

€2> For purposes of Paragraph (1)¢A)---

€A> An Indlividual---shall be determined

to be under a disabllity only if his

physical or mental impairment or

Impairments are of such severity that he

is not only unable to do his previous

work but cannot, considering hls age,

education, and work experience, engage

in any other kind of substantial gainful

work which exists in the national

economy, regardless of whether such work

exists in the Immediate area in which he

lives, or whether a specific Job vacancy

exists for him, or whether he would be

hired if he applied for work. For

purposes of the preceding sentence (with

respect to any individual), “work which

exists in the national economy’ means

work which exists in significant numbers

either in the region where such

Individual lives or in several regions

of the country.

€3> For purposes of this subsection, a

‘physical or mental impairment’ is an |

impairment that results from anatomical,

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physiological, or psychological

abnormalities which we are demonstrable

by medically acceptable clinical and

laboratory diagnostic techniques.

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— Se ee ee ee ee ee

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

June 18, 1990

No. 89-1542

BARBARA J. GOURAS (WADE)

Plaintiff - Appellant

v.

BURROUGHS WELLCOME COMPANY

Defendant - Appellee

On Petition for Rehearing with Suggestion

for Rehearing in Banc

The appellant’s petition for

rehearing and suggestion for rehearing in

banc were submitted to this Court. As no

member or this Court or the pane!

requested a poll on the suggestion for

rehearing in banc, and

As the panel considered the petition

for rehearing and is of the opinion that

it should be denied,

IT IS ORDERED that the petition for

rehearing and suggestion for rehearing in

banc are denied.

Entered at the Girection of Judge

Phillips with the coénmcurrence of Judge

Ervin and Judge Russel).

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For the Court,

s/ John M. Greacen

Clerk

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