Opposition Brief — Gouras v. Burroughs Wellcome Co.

-

Sunveme Court, U.S.

FILED

rs JT 7

4)

(= - JoSGPH F. SPANIOL, JR,

NO. 90-553 OLERK

rr ict

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

BARBARA J. GOURAS (WADE),

Petitioner,

V.

BURROUGHS WELLCOME COMPANY,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Charles R. Holton John Campion

(Counsel of Record) Asst. Gen. Counsel

Laura B. Luger BURROUGHS WELLCOME CO.

MOORE & VAN ALLEN 3030 Cornwallis Road

2200 W. Main Street R.T.P., N.C. 27709

Suite 800 (919) 248-3000

Durham, N.C. 27705

(919) 286-8000

BEST AVAILABLE COPY

— 2

II.

QUESTIONS PRESENTED

DID THE FOURTH CIRCUIT ERR IN APPLYING

THE STANDARD OF FIRESTONE TIRE & RUBBER

CO. v. BRUCH TO REVIEW THE BURROUGHS

WELLCOME BENEFITS COMMITTEE'S DECISION TO

TERMINATE PETITIONER'S DISABILITY

BENEFITS?

DID THE FOURTH CIRCUIT ERR IN FINDING

THAT THE BURROUGHS WELLCOME BENEFITS

COMMITTEE'S DECISION WAS REASONABLE AND

PROPER WITHOUT CONSIDERATION OF

VOCATIONAL EXPERT TESTIMONY WHEN NO SUCH

EVIDENCE WAS PROFFERED TO THE

COMMITTEE?

ii

LIST OF PARTIES

All of the parties in the United States

Court of Appeals for the Fourth Circuit are

listed in the caption.

Respondent Burroughs Wellcome Co. is a

wholly owned subsidiary of The Wellcome

Foundation Ltd., whose shares are held by

Wellcome plc, both of which are corporations

Organized under the laws of the United

Kingdom.

ss PN Eh 5

Se ee ae ee

iii

TABLE OF CONTENTS

QUESTIONS in id ad es eek te eee ee ee

LIST OF ee a oa weg 6 6 eas eeeee Ke SS

TABLE OF AUTHORITIES. ....cccccccccccecs oscee Vi

COUNTERSTATEMENT OF THE CASE.........2.2-22--e1

I. THE FOURTH CIRCUIT'S DECISION

CORRECTLY APPLIED BRUCH AND

DOES NOT CONFLICT WITH THE

DECISION OF ANY OTHER COURT

OP APPEALS... ccccccccvcccccccccccs 9

A.

The Fourth Circuit Opinion

Applying Bruch Does Not

Conflict With The Eighth

Circuit Opinion In Gunderson

Which Did Not Apply Bruch......9

This Case Does Not Conflict

With Gunderson Because of

Significant and Material

Factual Distinctions.......... 16

The Eighth Circuit Does Not

Require Consideration Of

Vocational Evidence In All

CaS@S.ccccccce eocceces Tr TTTTT 19

The Fourth Circuit's Opinion

In This Case Is In Harmony

With All Other Circuits'

Application Of Bruch.......... 20

7. he

—_— “~-

II.

iv

The Fourth Circuit's

Unpublished Opinion Is Not

Binding Precedent Even In

The Fourth Circuit And

Consequently Poses No Conflict

With Any Other Court Of Appeals

DECISION. .cccccsccccsccsccccccal

THE PETITION SHOULD BE DISMISSED

BECAUSE IT DOES NOT PRESENT ANY

ISSUES OF GENERAL OR NATIONAL

CREE Pamibe © boseceeebadeocceccec ad

A.

Because Of The Unique

Contractual Provisions Of

The Benefit Plans, This

Case Lacks National

Significance And Is

Inappropriate For

Review By Certiorari..........24

The Fourth Circuit

Correctly Rejected

Petitioner's Position

That The Benefits

Committee Should Be

Required to Consider

Vocational Expert

Testimony..... TETTELELELE 0004S

1. Consistent With The

Plan's Grant Of

Discretionary Authority,

The Benefits

Committee Reasonably

Chose To Rely On The

Medical Evidence

RUGS aeee SO BSescecccease 25

a ON ee ee

— >.) 3 ee

_ is -_ =

.

1

.

7

;

‘

,

]

a

q

‘a

.

—

4]

4

>

°

.

.

.

f

»

,

«

“ *

- |

y

2. Petitioner's

Contention That

Social Security

Law Must Be

Incorporated Into

The Plan Is Unsound

And Unfounded.........+6+++27

3. Even If Social

Security Law Were

Applied Here,

Petitioner Failed

To Introduce Any

Evidence of

Disability Whatsoever,

Thereby Failing To

Shift To the Committee

The Burden Of Proving

That Petitioner Can

Perform Work In The

National Economy..........31

oo es 8s rrr rr TTT PT TErrrrTiry ..

vi

TABLE OF AUTHORITIES

Bali v. Blue Cross & Blue Shield Ass'n,

673 F.2d 1043 (7th Cir. 1989)...........21,28

Davis v. Kentucky Finance Cos. Retirement

Plan, 887 F.20 689 (6th Cir.), cert.

denied, _U.S. , 110 S.Ct. 1924

( RS Ec ee aoe eee ee > |

de Nobel v. Vitro Corp., 885 F.2d 1181

(4th Cir. 1989) cee eeeeeeeeeeeeee elSm 16, ais 28

Egert v. Conn. General Life Ins. Co.,

See dee De A Gs AOE Oh ccccccccccccccdh

Exborn v. Central States Health and

Welfare Fund, 900 F.2d 1138

(RE eRe MDs baenelis cc bcccccccccccscce. 21

Firestone Tire & Rubber Co. v.

Bruch, 489 U.S. 101, 109 S.Ct. 948

Ee a ee Y passim, 25,26,30

Gunderson v. W. R. Grace & Co. Long

Term Disability Income Plan,

874 F.2d 496 (8th Cir. re 9 passim

Jenkinson,v. Chevron Corp., 634

Fa Me BED Eictls Gs BECO) cc cc ccccccse 9-10

Perry v. Simplicity Engineering,

900 F.2d 963 (6th Cir. eee 21

Potter v. Conn. General Life Ins. Co.,

901 F.2d 685 (8th Cir. 1990)......... 19-20,21

Shaw v. Delta Airlines, Inc., 463

Sk re SS ee ee. ft Sl Pee 30

vii

Smith v. Califano, 592 F.2d 1235

(4th = ccc cccccc cote 32

Stoetzner v. U.S. Steel Corp., 897

F.2d 115 (3d Cif. DCE te ive eecaceeccedh

Taylor v. United States, U.S. ’

8 Se | > Rep 23-24

Taylor v. Weinberger, 512 F.2d 664

ee sco ccc ccccccccccsocs 29

STATUTES AND RULES

WE oct ccc ccc ccc cccccce 24

ey eereere OME C RPE SDTA). ccc ccccccccccce 28

ED .28

U.S. Fourth Circuit Court of

Appeals Internal Operating

eee ccc ccc ccee 22-23

-l-

COUNTERSTATEMENT OF THE CASE1/

Burroughs Welicome paid this Petitioner

long term disability benefits based on her

total disability rating from 1979 until 1985

when uncontroverted evidence demonstrated

that she was no longer totally disabled and,

could, in fact, perform sedentary work.

Disregarding this change in disability

1/ the Petitioner makes reference to

the Joint Appendix filed with the Fourth

Circuit. Petition at 4. Respondent

understands that the Joint Appendix is not

now before the Court as the Clerk of the

Supreme Court has not requested the Clerk of

the Fourth Circuit to certify and transmit

the Joint Appendix from the proceedings below

to the Clerk of this Court. See Supreme

Court Rule 12.5. Respondent therefore refers

only to the Appendix to the Petition,

abbreviated as "P.A.," and the Appendix to

Respondent's Brief in Opposition to the

Petition, abbreviated as "R.A."

L iia iad in tannin

-2-

rating, Petitioner has insisted to Respondent

and the courts below that she should have

continued to receive benefits as if they were

a lifetime entitlement. Both the Respondent

and the courts below have rejected her

unfounded position. Respondent respectfully

submits that Petitioner's claim should end

here with this Court's dismissal of the

petition for writ of certiorari.

While Petitioner qualified for disability

benefits from 1979 until 1983, a September

1984 physical examination by her medical

doctor, Lee A. Whitehurst, M.D., revealed

that Petitioner's disability rating changed

in 1984. Dr. Whitehurst wrote in his office

notes:

I cannot find any objective reasons

to preclude her from returning to

work that does not require heavy

lifting or prolonged bending or

stooping, and possibly repetitive

motions involving extension of the

left arm... . Otherwise, I would

recommend that she be given a

| |

-3-

rmanent partial disability of 10%,

indeed, she has documentation

that she sustained a left elbow

njury on the job. I do not find

any objective evidence on which to

base a permanent partial disability

for the spine.

(Emphasis added). (R.A. 1-2)

Dr. Whitehurst's 1984 medical report

reflected his expert opinion that Petitioner

was no longer totally disabled within the

definition of the Burroughs Wellcome Long

Term Disability Plan (the "Plan"), as she was

capable of performing work requiring limited

physical exertion. (R.A. 1-2).

One year later, Dr. Whitehurst examined

Petitioner again. In his notes from the

September 1985 examination, Dr. Whitehurst

adopted and reiterated the findings he had

made in his earlier notes:

I would recommend that the

recommendations given on the report

of September 11, 1984 should be

followed in regard to [Petitioner's]

permanent partial disability...

iii ileal

-4-

(R.A. 3). For the second time in a year,

Dr. Whitehurst had found in his expert

opinion that Petitioner was no longer totally

disabled.

Following Dr. Whitehurst's September 1985

examination, the Plan's Benefits Committee

reevaluated Petitioner's status under the LTD

Plan. On October 10, 1985, the Chairman of

the Benefits Committee and administrator of

the Plan notified Petitioner by certified

mail that “({bJased upon mec ical

examinations," her long term disability

benefits had been terminated. (R.A. 4). He

also informed Petitioner of her right to

appeal the determination. (R.A. 4).

Following receipt of the October 10 letter,

Petitioner's counsel requested and obtained

from the Benefits Committee additional

information and documentation regarding the

termination of Petitioner's benefits. (R.A.

Tao seeeeniemenmapeameieaiieaaiaaaieacaaiiaiiaaaaiee

-5-

10). On November 8, 1985, Petitioner

appealed the decision to the Benefits

Committee.

In a November 21, 1985 letter written in

response to Petitioner's notice of appeal,

the LTD Plan administrator informed

Petitioner that as part of the process of

reviewing Petitioner's appeal, the Committee

was requesting further medical evaluation

“regarding [Petitioner's] ability to perform

gainful employment.” (R.A. 5). The plan

administrator also encouraged Petitioner,

through her counsel, to submit any additional

information she wished the Committee to

consider. Id. Neither Petitioner nor her

counsel ever submitted any evidence to

support her claim.

Pursuant to the request of the Benefits

Committee, Paul Burroughs, M.D., of the Bone

and Joint Clinic in Raleigh, North Carolina,

«lk sical

-6-

rendered an expert medical opinion concerning

Petitioner's disability based on a physical

examination and interview with Petitioner on

December 10, 1985, and review of her medical

records provided by Respondent.

Dr. Burroughs concluded in his medical

report:

No specific reasons for complete

disability rating is noted in the

records from Burroughs Wellcome. On

the basis of this examination, a 10%

disability status of the elbow, as

well aS perhaps 5 to 10% disability

of the me could be justified. I

do not believe the patient will be

able to do any heavy work due to

these factors but should be able to

do sedentary work on the basis of

information available to me.

(R.A. 7-8) (emphasis added).

On January 16, 1986, the plan

administrator advised Petitioner and her

attorney of the Benefits Committee's

final determination that Petitioner was

not totally cisabled under the Plan.

(R.A. 9). Subsequently, the plan

-7-

administrator provided Petitioner's

attorney with a copy of Dr. Burroughs’

medical evaluation and explained the

reasons for the Committee's decision:

~~

As you recollect, in response to

Ms. Wade's appeal of the initial

denial of continued Plan benefits,

the Benefits Committee sought an

additional medical evaluation to

determine whether Ms. Wade continued

to remain totally disabled within

the definition of total disability

under the plan. Dr. Burroughs [sic]

conclusion was that Ms. Wade ‘should

be able to do sedentary work...

To remain eligible for plan

benefits, Ms. Wade must be unable to

engage in any substantial gainful

employment as a result of her

disability. The Committee also

offered to consider any additional

evidence Ms. Wade might wish to

offer, but received no further

submissions from or on behalf of

Ms. Wade.

} (R.A. 10-11).

The Burroughs Wellcome LTD Plan grants

exclusive discretion to the Benefits

Committee to determine a participant's right

to benefits based on evidence which the

fe

Committee deems necessary or desirable. The

Plan provides in relevant part:

Total Disability .. . The

determination of whether or not a

rtic n s tota sable

Shall ian Eee iv tha Camaittes,

s

sed upon such evidence as the

Committee deems necessary or

(P.A. 28) (emphasis added). The Plan further

vests the Committee with the sole discretion

to interpret and apply the Plan's terms aiid

provides that the Committee's decisions in

this regard “shall be binding and conclusive

upon all participants.” (P.A. 31). Finally,

the Plan provides that following the denial

of benefits to a participant, where the

Committee has given the participant proper

notice and an opportunity for review, the

Committee's final determination upon review

shall be “binding and conclusive.“ (P.A. 3l-

32).

I. THE FOURTH CIRCUIT'S DECISION CORRECTLY

APPLIED BRUCH AND DOES NOT CONFLICT WITH

THE DECISION OF ANY OTHER COURT OF

APPEALS.

A. The Fourth Circuit Opinion Applying

Bruch Does Not Conflict With The

Eighth Circuit Opinion In Gunderson

Which Did Not Apply Bruch.

Petitioner asks this Court to grant

certiorari because of a purported conflict

between the Fourth Circuit's opinion in this

case and the Eighth Circuit's opinion in

Gunderson v. W. R. Grace & Company Long-Term

Disability Income Plan, 874 F.2d 496 (8th

Cir. 1989) .2/ There is no conflict.

-2/ Petitioner also cites one District

Court opinion, Jenkinson v. Chevron Corp.,

634 F. Supp 375 (N.D. Cal. 1986). Inasmuch

(Continued) .

ee

-10-

As Petitioner concedes, in this case the

Fourth Circuit properly applied the analysis

mandated by this Court in Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct.

948 (1989) (P.A. 7-8) and found that “(the

Burroughs Wellcome] Plan clearly vested in

the Benefits Committee the discretion to

determine ‘total disability’ and, thus,

eligibility for [long term disability]

benefits." (P.A. at 8). The Court of

Appeals then applied the “abuse of

discretion” standard to examine the

Committee's decision, as required by Bruch.

489 U.S. at , 109 S.Ct. at 954.3/

as Jenkinson has not been cited, favorably or

otherwise, by the Ninth Circuit, it does not

repggent the Ninth Circuit's view.

In those plans vesting discretionary

authority in the plan administrator, Bruch

(Continued)

-ll-

In contrast, Gunderson was not decided

under Bruch, as it was briefed and argued

prior to the decision in Bruch, and the

Eighth Circuit appears to have applied a more

rigorous de novo standard in reviewing the

administrator's decision rather than an abuse

of discretion standard. Gunderson 874 F.2d

at 498-99, n.3, and 500. The two opinions

cannot conflict when they reach different

conclusions applying different standards of

review.

teaches that the deferential abuse of

discretion standard applies unless the

administrator is biased or otherwise

interested in the decision. See Bruch, 489

U.S. at , 109 S.Ct. at 956-57. Petitioner

has not alleged or suggested any such bias on

the part of the Burroughs Wellcome Benefits

Committee.

-12-

Bruch teaches that the standard of review

must be determined by an analysis of plan

language. If the plan grants discretionary

authority to the decision-maker, the |

deferential abuse of discretion standard

applies. If there is no express grant of

authority, de novo review is in order. The

evidence before the decision maker only comes

into play after the reviewing body has

decided which standard of review should apply

in order to determine whether the standard

has been satisfied.

Following Bruch, the Fourth Circuit in

the instant case based its determination on

the following language in the Plan:

The determination of whether or not a

participant is totally disabled shall be

made by the Committee, based upon such

evidence as the Committee deems necessar”

or desirable.

The Fourth Circuit found no abuse of

discretion as there was sufficient evidence

-l13-

from which the Committee could conclude that

Petitioner was not totally disabled. The

record showed that the Committee had before

it and relied upon the reports of three

examinations by two physicians over a period

of fourteen months between 1984 and 1985, all

of which determined that Petitioner suffered

from at worst a 5% to 10% disability and

would be able to perform sedentary work.

(P.A. 9, R.A. 2,3,7-8). Petitioner never

presented any evidence to the Committee to.

refute or contradict these expert opinions.

(R.A. 9). Thus, the Court of Appeals found

that the Committee could reasonably conclude

that Petitioner was no longer “totally

disabled" under the Plan's definition.

(P.A. 9).

Contrary to Bruch, the Gunderson court

failed to select its standard of review on

the basis of whether the plan in question

-14-

granted discretion to the plan administrator,

as required by Bruch. It did not analyze the

provisions of the W. R. Grace plan to

determine whether the plan administrator had

the discretionary power to make eligibility

determinations. Since Gunderson lacks this

crucial analysis, it is clear that Gunderson

does not follow Bruch. Moreover, the

footnoted reference to possible applicability

of an “arbitrary and capricious" standard,

which this Court rejected in Bruch, reflects

the Eighth Circuit's misunderstanding of the

Bruch holding. 874 F.2d at 498-99, n.3.

In Gunderson, the Eighth Circuit applying

what was, in essence, a de novo standard of

review, looked first to the evidence before

the plan administrator, and then refused to

defer to the administrator's decision to

terminate benefits. Id. at 500. The plan

administrator in that case awarded long-term

-15-

disability benefits at first, but

subsequently attempted to terminate those

benefits without receiving any new evidence

of changed disability status to support the

termination. Id. at 499-500. The Gunderson

court observed: “we don't believe such

deference encompasses the Plan's decision to

use the same evidence which once supported

its finding of disability to now support a

finding . . . Of no disability." Id. at

500. Not surprisingly, using different

reasoning, the Gunderson Court reached a

result different from the Fourth Circuit

which applied a Bruch analysis.

Another Fourth Circuit decision contrasts

with Gunderson, which was decided by a

District Court Judge sitting by designation

without benefit of briefing or argument

concerning Bruch. de Nobel v. Vitro Corp.,

885 F.2d 1181 (4th Cir. 1989), isa case

-16-

where a Court of Appeals requested

supplemental briefing after Bruch was decided

to properly consider its implications. Id.

at 1185, n.3. The Gunderson court's failure

to request ddditional briefing or argument

for the purpose of further considering Bruch

is additional proof that Gunderson is, in

essence, a pre-Bruch case. Thus, there is no

conflict between Gunderson and the Fourth

Circuit opinion here, in which the Fourth

Circuit carefully and correctly followed

Bruch.

B. This Case Does Not Conflict With

Gunderson Because Of Significant and

Material Factual Distinctions.

The Gunderson opinion is based on the

facts and specific plan provisions in that

case, which differ significantly from the

facts and material provisions of the

Burroughs Wellcome Plan. The Gunderson plan

administrator terminated the claimant's

-l17-

benefits without any change in expert medical

opinion regarding the extent of claimant's

disability. In sharp contrast with the facts

of Gunderson, the Burroughs Wellcome Benefits

Committee obtained additional evidence of

changed disability rating before reaching its

decision to terminate Petitioner's

benefits. As part of the decision-making

process, the Committee arranged for a follow-

up physical examination of Petitioner.

(R.A. 5). In addition, the Benefits

Committee invited evidence from the

Petitioner, but Petitioner failed to offer

one iota of support for her claim of total

disability. (R.A. 5, 10). Thus, unlike

Gunderson, where the plan administrator

terminated benefits without obtaining any

additional evidence of changed disability

rating, the Benefits Committee of the

Burroughs Wellcome Plan relied on: ample

-18-

additional evidence from two different

physicians before it rendered its final

decision terminating Petitioner's benefits.

Significant differences between the

provisions of the W. R. Grace Plan applied in

Gunderson and the Burroughs Wellcome Flan

also distinguish the two cases. Here, the

Fourth Circuit properly concluded that the

Burroughs Wellcome Plan clearly gives the

Benefits Committee discretion to make

benefits eligibility decisions. In contrast,

the Gunderson court makes no mention of any

such discretionary provisions in the W. R.

Grace Plan. Furthermore, the Gunderson plan

specifically referred to the employee's

ability to perform “any occupation” as a

factor to be considered in making eligibility

decisions. The Gunderson court explicitly

relied upon the “any occupation" language to

hold that the administrators of the Gunderson

ee en ee tn ne en en ore erent Ree

-19-

plan should have obtained a vocational

expert's opinion as part of the decision

making process. Id. at 499. In contrast,

the Burroughs Wellcome Plan contains no

comparable language concerning the

Petitioner's ability to perform “any

occupation.” Thus, the plan language which

supported the Gunderson holding concerning

vocational expert testimony is totally absent

from the Plan at issue in this case.

C. * The Eighth Circuit Does Not Require

Consideration Of Vocational Evidence

In All Cases.

Contrary to Petitioner's assertion, this

case does not conflict with the Eighth

Circuit's views on vocational expert

testimony in ERISA welfare benefit plans.

Notwithstanding Gunderson, the Eighth Circuit

does not require consideration of vocational

expert testimony in all cases of denials of

benefits under ERISA plans. In Potter v.

-20-

Conn. General Life Ins. Co., 901 F.2d 685,

686 (8th Cir. 1990), the court affirmed a

denial of such disability benefits. There

the Eighth Circuit rejected the claimant's

argument that failure to consider vocational

expert testimony was grounds for reversal.

Id. at 686.

D. The Fourth Circuit's Opinion In This

Case Is In Harmony With All Other

Circuits’ Application Of Bruch.

Since Bruch, federal appellate courts,

including the Eighth Circuit, have carefully

examined the provisions of each plan to

determine whether it vests its administrator

with discretionary powers. Where the plan

contains such grants of discretionary

authority, the appellate courts uniformly

reject the de novo standard of review, as

Bruch requires; in the absence of

discretionary powers, de novo review is the

rule. Consequently, the Fourth Circuit

-21-

opinion is in complete harmony with the

post-Bruch decisions of the other Courts of

Appeal. See Potter v. Conn. General Life

Ins. Co., 901 F.2d 685, 686 (8th Cir. 1990);

| Exborn v. Central States Health and Welfare

Pund, 900 F.2d 1138, 1141 (7th Cir. 1990);

Perry v. Simplicity Engineering, 900 F.2d

963, 965 (6th Cir. 1990); Egert v. Conn.

General Life Ins. Co., 900 F.2d 1032, 1035

(7th Cir. 1990); Stoetzner v. U.S. Steel

Corp., 897 F.2d 115, 119 (3d Cir. 1990);

Davis v. Kentucky Finance Cos. Retirement

Plan, 887 F.2d 689, 694 (6th Cir. 1990); de

Nobel v. Vitro Corp., 885 F.2d 1181, 1186

(4th Cir. 1989); Bali v. Blue Cross and Blue

. Shield Ass'n, 873 F.2d 1043, 1047 (7th Cir.

1989).

E. The Fourth Circuit's Gnpublished

Opinion Is Not Binding Precedent

Even In The Fourth Circuit And

Consequently Poses No Conflict With

Any Other Court Of Appeals Decision.

‘ise 4

-22-

The Court of Appeals‘ decision in this

case is an unpublished opinion which is not

binding precedent in the Fourth Circuit .4/

4/ The cover page of the Fourth

Circuit's opinion states: “Unpublished

opinions are not binding precedent in this

circuit. See 1.0.P. 36.5 and 36.6." (P.A.

1). 1.0.P. 36.6 provides:

Citation of Unpublished

Dispositions. In the absence of unusual

circumstances, this Court will not cite

an unpublished disposition in any of its

published opinions or unpublished

dispositions. Citation of this Court's

unpublished dispositions in briefs and

Oral arguments in this Court and in the

district courts within this Circuit is

disfavored, except for the purpose of .

establishing res judicata, estoppel, or

| the law of the case.

| If counsel believes, nevertheless,

: that an unpublished disposition of any

court has precedential value in relation

: to a material issue in a case and that

there is no published opinion that would

serve as well, such disposition may be

cited if counsel serves a copy thereof on

all other parties in the case and on the

(Continued)

-23-

(P.A. 1). Fourth Circuit 1.0.P. 36.6

provides that the Fourth Circuit will not

cite an unpublished disposition in any of its

published opinions or unpublished

dispositions, absent “unusual

circumstances.” Since the Fourth Circuit's

Opinion is not even binding precedent in that

circuit, it can present no conflict with any

opinion of any other federal court of

appeal. See Taylor v. United States, _

U.S. _s 110 S.Ct. 265 (19869) (Justice

Stevens observed the rule that because an

unpublished court of appeals opinion lacks

Court. Such service may be accomplished

by including a copy of the disposition in

the appendix to the brief. (emphasis

added).

-24-

“precedential value," there is no "“inter-

Circuit conflict" and consequently no reason

to grant a petition for certiorari.)

II. THE PETITION SHOULD BE DISMISSED BECAUSE

IT DOES NOT PRESENT ANY ISSUES OF GENERAL

OR NATIONAL SIGNIFICANCE.

A. Because Of The Unique Contractual

Provisions Of The Benefit Plans,

This Case Lacks National

Significance And Is Inappropriate

Por Review By Certiorari.

This case involves nothing more than the

interpretation of the contractual language of

the Burroughs Wellcome Plan. It does not

concern the interpretation of any provision

of the Employee Retirement Income Security

Act of 1974 ("ERISA") ,2/ Or any other federal

2/29 : U.S.C. § 1001 et seq.

eens 2 OA sire: hove

-25-

statute. The Fourth Circuit opinion

correctly observed that

the threshold question in this case

[. . .] 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?"

(citation omitted). (P.A. 8). Inasmuch as

the terms of the Burroughs Wellcome Plan are

unique to that plan, this case presents no

issues of national importance, since the

interpretation of the language would be

unique to this plan and would have little

application to other plans throughout the

country.

B. The Fourth Circuit Correctly

Rejected Petitioner's Position That

The Benefits Committee Should Be

Required to Consider Vocational

Expert Testimony.

Ze Consistent With The Plan's

Grant of Discretionary

Authority, The Benefits

Committee Reasonably Chose To

Rely On The Medical Evidence

Available To It.

-26-

As required by Bruch, the Fourth Circuit

correctly found that the Plan expressly

vested the Benefits Committee with broad

discretion to make benefits determinations.

(P.A. 8). The Plan aiso vests the Committee

with the discretion to determine what

evidence is necessary or desirable in making

disability determinations. The Plan provides

that the Committee's determinations are to be

- « + 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 Committee to determine the

commencement or continuation of

total disability.

(R.A. 28-29). (emphasis added). Bruch

teaches that the Committee's determination

regarding evidence should not be disturbed so

long as it is reasonable. See id., 489 U.S.

at _, 109 S.Ct. at 954.

It follows that the Fourth Circuit

-27-

correctly deferred to the Committee's

discretion in deciding what evidence was

“necessary and desirable” to consider in

determining whether to continue Petitioner's

long term disability benefits. The

Committee's reliance on expert medical

evidence here was clearly reasonable. The

Committee relied on three different

examinations by two different physicians over

a fourteen month period. Petitioner never

presented any evidence of any sort to support

her position despite numerous opportunities

to do so. The uncontraverted medical

evidence established that Petitioner was not

totally disabled but was capable of

performing sedentary work. The Committee did

not abuse its discretion in this case.

2. Petitioner's Contention That

Social Security Law Must Be

Incorporated Into The Plan Is

Unsound And Unfounded.

Petitioner's assertion that the case law

-28-

interpreting certain provisions in the Social

Security act§/ must be applied in reviewing

the Benefits Committee's decision is

unsound. Petitioner cites not one case in

which a court has held that social security

law must be applied in interpreting an ERISA

plan. In fact, the Courts of Appeals have

not, typically, employed Social Security Act

analysis to the interpretation of an ERISA

plan. Bali v. Blue Cross & Blue Shield

Ass'n, 873 F.2d 1043 (7th Cir. 1989); de

Nobel v. Vitro Corp., 885 F.2d 1181 (4th Cir.

1989). It makes no sense to do so.

The burden of proof on the Secretary of

6/ = Pitle 42 U.S.C. §§ 423(d)(1)-

(2)(A),(3).

-29-

Health and Human Services in a social

security benefits case differs dramatically

from that of a plan administrator in

determining eligibility under an ERISA

benefits plan. Social security benefits are

provided by the federal government with

burdens of proof concerning eligibility

dictated in large part by public policy and

constitutional concerns not applicable to

private contractual relationships. In

contrast to the exclusive discretion often

vested in an ERISA plan administrator, as

typified by the Burroughs Wellcome Plan, once

a social security claimant has established a

prima facie case of disability, “the burden

of going forward and proving that the

claimant can perform an alternate job which

exists in the national economy shifts to the

Secretary." Smith v. Califano, 592 F.2d

1235, 1236 (4th Cir. 1979), citing, Taylor v.

-30-

Weinberger, 512 F.2d 664 (4th Cir. 1975).

The Secretary of Health and Human Services .

thus bears an affirmative duty to show that :

the claimant can perform a particular job and

that the job actually exists. The

specificity of this showing often

necessitates the consideration of vocational

evidence. 592 F.2d at 1236.

In contrast to the proof burdens in

social security disability cases, private

parties may allocate burdens as they wish.

The provisions of the Burroughs Wellcome Plan

place no affirmative duty on the Benefits

Committee to prove Petitioner's ability to

perform an alternate job, or that any such

job exists. To adopt Petitioner's contention

would effectively reverse the Plan's

provisions which implicitly contemplate that

the burden is not on the plan administrator,

but rather on the benefits claimant to come

=-3)]-

forward to rebut evidence which established a

change in disability status. Contrary to the

provisions of the Burroughs Wellcome LTD

Plan, Petitioner's position would require the

Committee to prove the existence of work in

the national economy which Petitioner could

perform. Such an interpretation is not in

keeping with the respect due the contractual

provisions of this Plan.// See Bruch, 489

U.S. at , 109 S.Ct. at 955; Shaw v. Delta

Airlines, Inc., 463 U.S. 85, 90 103 S.Ct.

2890, 2896 (1983) (recognizing contractual

nature of ERISA plans).

7/ as stated in Bruch, ERISA was

enacted to “'protect contractually defined

benefits.'" (citations omitted).

-32-

3. Even If Social Security Law

Were Applied Here, Petitioner

Failed To Introduce Any

Evidence Of Disability

Whatsoever, Thereby Failing To

Shift To The Committee The

Burden Of Proving That

Petitioner Can Perform Work In

The National Economy.

Even assuming that law interpreting the

Social Security Act should apply here, the

Fourth Circuit committed no error in finding

that the Benefits Committee need not consider

vocational expert testimony, since Petitioner

failed to introduce evidence which would

shift that burden to the Benefits

Committee. As indicated above, under

applicable law interpreting the Social

Security Act, the initial burden of proving

disability rests upon the claimant, after

which the burden shifts to the Secretary of

the Social Security Administration to prove

affirmatively that the claimant can perform

an alternate job wach exists in the national

-33-

economy. Smith v. Califano, 592 F.2d 1235,

1236 (4th Cir. 1979).

Here, when notified of the change in her

disability status, Petitioner offered no

evidence, whether vocational, medical, or

otherwise, supporting her claim of total

disability to rebut the expert medical

evidence which uniformly demonstrated that

Petitioner had, at most, a five (5) to ten

(10) percent disability rating. Thus, even

applying the law applicable to the Social

Security Act, Petitioner failed to shift to

the Benefits Committee the burden of going

forward with vocational evidence. Since

Petitioner failed to shift this burden, under

Social Security disability analysis the

Committee would never have become obligated

to introduce evidence proving the existence

of jobs which Petitioner was capable of

performing, or to consider vocational

ia iineaeeieienieiaillle

-34-

evidence in connection with that proof.

CONCLUSION

For the foregoing reasons, Respondent

respectfully requests this Court to deny the

Petition for Writ of Certiorari.

Respectfully submitted,

Charles R. Holton

Counsel of Record

Laura B. Luger

MOORE & VAN ALLEN

2200 W. Main St., Suite 800

Durham, North Carolina 27705

Telephone: (919) 286-8000

John E. Campion, III

Assistant General Counsel

Burroughs Wellcome Company

3030 Cornwallis Road

RTP, N.C. 27709

Telephone: (919) 248-3000

a a a

NO. 90-553

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

BARBARA J. GOURAS (WADE),

Petitioner,

Vv.

BURROUGHS WELLCOME COMPANY,

Respondent.

APPENDIX TO

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Charles R. Holton John E. Campion, III

(Counsel of Record) Asst. Gen. Counsel

Laura B. Luger BURROUGHS WELLCOME CO.

MOORE & VAN ALLEN 3030 Cornwallis Road

2200 W. Main Street R.T.P., N.C. 27709

Suite 800 (919) 248-3000

Durham, N.C. 27705

(919) 286-8000

EXCERPTS FROM OFFICE NOTES OF

LEE A. WHITEHURST, M.D., POLLOWING

SEPTEMBER 11, 1984

——__ BXANINATION OF PETITIONER

SOCIAL RISTORY

She has been working for Burroughs

Wellcome for 5 months.

She was seen on 8/4/80 by this

examiner. At that time, she expressed a

strong desire to go back to work. I Felt at

that time it would be satisfactory. I did

not Feel that her condition would be made

worse by her working.

I cannot Find any objective reasons to

preclude her from returning to work that does

not require heavy lifting or prolonged

bending or stooping, and possibly repetitive

motions involving extension of the left

A=-1

arm. These activities may cause increased

discomfort. Otherwise, I would recommend

that she be given a permanent partial

disability of 10%, if indeed, she has

documentation that she sustained a left elbow

injury on the job. I do not find any

objective evidence on which to base a

permanent partial disability for the spine.

08S Re we

EXCERPT FROM OFFICE NOTES OF

LEE A WHITEHURST, M.D.,

FOLLOWING SEPTEMBER 16, 1985

EXAMINATION OF PETITIONER

RECOMMENDATIONS :

If her symptoms warrant, I. would

recommend that she have exploration of the

elbow. . .. . She will think about her

options of treatment and we may proceed

accordingly. She was extensively

counselled. I would recommend that the

recommendations given on the report of

September 11, 1984 should be following in

regard to her permanent partial disability,

if she does not feel that her symptoms

warrant surgical intervention.

COMPLETE TEXT OF OCTOBER 10, 1985

LETTER FROM BURROUGHS WELLCOME

LONG TERM DISABILITY PLAN ADMINISTRATOR

KENNETH W. KIDD TO PETITIONER

MRS. BARBARA J. WADE.

October 10, 1985

Mrs. Barbara J. Wade

Route 7, Box 458

Greenville, NC 27834

Dear Mrs. Wade:

Based on medical examinations, I must

determine that you are no longer totally

disabled under the rules of the Long-Term

Disability Plan of Burroughs Wellcome Co.

Therefore, any benefits you were receiving

under this Plan are terminated.

You have the right to appeal this decision to

the Benefits Committee. Your appeal must be

in writing and dated no later than 30 days

from the date of this letter.

Very truly yours,

Kenneth W. Kidd

Chairman, Benefits Committee

_— — ™

ee aa

COMPLETE TEXT OF NOVEMBER 21, 1985

LETTER FROM BURROUGHS WELLCOME

LONG TERM DISABILITY PLAN ADMINISTRATOR

KENNETH W. KIDD TO PETITIONER'S

ATTORNEY WILLIS A. TALTON, ESQ.

November 21, 1985

Mr. Willis A. Talton

Attorney at Law

P. O. Box 390

216 South Washington Street

Greenville, North Carolina 27834

Re: Barbara J. Wade

Dear Mr. Talton:

At it's [sic] regularly scheduled meeting on

November 19, 1985, the Benefits Committee

reviewed Ms. Wade's appeal of the termination-

of her benefits under the Long-Term

Disability Plan of Burroughs Wellcome Co.

After reviewing the various medical reports

on Ms. Wade, the Committee has asked for

further medical evaluation regarding

Ms. Wade's ability to perform gainful

employment.

We are in the process of setting up an

appointment for Ms. Wade to have another

medical evaluation performed by an outside

physician. You and Ms. Wade will be notified

regarding this evaluation.

If there is any additional information you

wish to submit regarding Ms. Wade, please do

so. The next meeting of the Benefits

A-5

Committee is scheduled for Tuesday,

December 17, 1985.

Very truly yours,

S/Kenneth W. Kidd ;

Plan Administrator

cc: Ms. Barbara Wade

Ne ey ee ee

EXCERPT OF MEDICAL REPORT OF PAUL

PHYSICAL EXAMINATION

OF PETITIONER ON DECEMBER 10, 1985

This 45 year old female is referred by

Burroughs Welcome (sic) Company for

disability evaluation. Patient is seen

without benefit of any medical records and

this has been ordered and will be hopefully

received in the near future. All information

is obtained from the patient.

1-9-86 ADDENDUM: Burroughs-Welcome (sic)

sent over the medical records from Ms. Briley

which date to 1979. Examinations by

Dr. Whitehurst and Dr. Crisp were present as

well as by Dr. Bill Fore.

No specific reasons for a complete

disability rating is noted in the records

from Burroughs Wellcome. On the basis of

this examination, a 10% disability status of

the elbow, as well as perhaps 5% to 10%

A-7

To eeG~eeeeeno

disability of the back could be justified. I

do not believe the patient will be able to do

any heavy working due to these factors but

should be able to do sedentary work on the

basis of information available to me.

lt al kn ns

COMPLETE TEXT OF JANUARY 16, 1986

LETTER FROM BURROUGHS WELLCOME

LONG TERM DISABILITY PLAN ADMINISTRATOR

KENNETH W. KIDD TO PETITIONER'S

ATTORNEY WILLIS A. TALTON, ESQ.

January 16, 1986

Mr. Willis A. Talton

Attorney at Law

P.O. Box 390

216 S. Wilmington Street

Greenville, NC 27834

Re: Barbara J. Wade

Dear Mr. Talton:

The Benefits Committee met on Wednesday,

January 15, 1986 to review Dr. Burroughs

medical evaluation of Mrs. Wade.

The Committee has determined that she is not

totally disabled under the rules of the

Long-term Disability Plan of Burroughs

Wellcome Co.

Very truly yours

Kenneth W. Kidd

Plan Administrator

cc:.Mrs. Barbara J. Wade

COMPLETE TEXT OF FEBRUARY 14, 1986

LETTER FROM BURROUGHS WELLCOME

LONG TERM DISABILITY PLAN ADMINISTRATOR

KENNETH W. KIDD TO PETITIONER'S

ATTORNEY WILLIS A. TALTON, ESQ.

February 14, 1986

Mr. Willis A. Talton

Attorney at Law

P.O. Box 390

216 S. Wilmington Street

Greenville, NC 27834

Re: Long-Term Disability Claim

Barbara J. Wade

Dear Mr. Talton:

Pursuant to your letter dated February 6,

1986, I am including a copy of the medical

evaluation of Barbara J. Wade submitted to

the Benefits Committee by Dr. Paul Burroughs

after his examination of Ms. Wade. I also

include a copy of the Long-Term Disability

Plan (the Plan) you requested from the

Benefits Office in our Greenville plant.

As you recollect, in response to Ms. Wade's

appeal of the initial denial of continued

Plan benefits, the Benefits Committee sought

an additional medical evaluation to determine

whether Ms. Wade continued to remain totally

disabled within the definition of total

disability under the Plan. Dr. Burroughs

conclusion was that Ms. Wade “should be able

to do sedentary work. . ." To remain

eligible for Plan benefits, Ms. Wade must be

unable to engage in any substantial gainful

employment as a result of her disability.

A-10

The Committee also offered to consider any

additional evidence Ms. Wade might wish to

offer, but received no further submissions

from or on behalf of Ms. Wade.

The Plan provides for a determination and an

appeal from that determination. In this

case, there was a determination and an

appeal. On appeal, the Committee reviewed

the medical evaluations, including

Dr. Burroughs evaluation, and in light of the

evidence, determined that Ms. Wade was

ineligible for benefits. Any action that

Ms. Wade might choose to take in this case

does not seem to depend upon any further

action by the Benefits Administrator, the

Benefits Committee or the Company.

If you have any further questions, please

feel free to write me.

Very truly yours

S/Kenneth W. Kidd

Administrator of the Benefits Committee

A-1li