F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 15 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
GREG PACK,
Plaintiff-Appellant,
v. No. 99-7088
(D.C. No. 98-CIV-584-S)
THE MICHELIN (E.D. Okla.)
RETIREMENT PLAN,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK , KELLY , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiff Greg Pack appeals from the district court’s entry of summary
judgment in favor of defendant, the Michelin Retirement Plan (the Plan), on his
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
claim for disability benefits under the Employee Retirement Income Security Act
of 1974 (ERISA), 29 U.S.C. §§ 1001-1461. Plaintiff argues that the Plan acted
arbitrarily and capriciously by denying his application for disability benefits.
We exercise jurisdiction under 28 U.S.C. § 1291, and we affirm.
Background
Mr. Pack worked as a tire builder at the Uniroyal Goodrich Tire
manufacturing facility in Ardmore, Oklahoma, a division of Michelin North
America, Inc. (Michelin). He began work at the Ardmore tire facility in 1982.
Beginning in June 1993, Mr. Pack began to suffer from fatigue, shivering,
extreme cold, and palpitations. He reported that these symptoms intensified when
he was at work, but subsided when he was absent from work. He underwent
a battery of testing and medical examinations over the next two years.
From June 1993 to February 1994, Mr. Pack experienced symptoms to
a degree necessitating absence from work on several occasions. Mr. Pack did not
return to work after February 9, 1994. In September 1994, Mr. Pack’s physician,
Dr. Kenneth Hart, diagnosed him with multiple chemical sensitivity syndrome
possibly attributable to exposure to one or more unknown chemicals or substances
at the tire facility. Dr. Hart opined that Mr. Pack could return to work, but would
have to avoid whatever unknown substances or odors may have created his
-2-
symptoms. Mr. Pack was terminated from employment in May 1995 because he
failed to return to work.
In April 1995, Mr. Pack applied for disability retirement benefits under the
Plan, in which he was a qualified, vested participant. The Plan is an employee
pension plan authorized and governed by the requirements of ERISA. It was
formed as a result of the merger of several pension plans maintained by Michelin,
including the Uniroyal Goodrich Tire Company Tire Pension Plan. An entity
referred to as the Pension and Benefits Appeals Board (the Board) is
designated as the plan administrator for purposes of ERISA. The Plan gives
the Board discretion to determine eligibility for benefits and to interpret the
terms of the Plan.
The Plan provides for disability retirement benefits to any qualified
participant “who, through no fault of his own, becomes totally and permanently
disabled as a result of sickness or injury.” Appellee’s Supp. App., at 48.
The Plan’s summary plan description defines permanent and total disability to
mean that the participant is “no longer able to meet the requirements of [his] job
and [is] not able to qualify for transfer to another job in the Ardmore Plant.”
Id. at 77.
Mr. Pack’s application for disability benefits was denied, and he appealed
that decision to the Board. All of the Board members were given copies of the
-3-
materials and information submitted by Mr. Pack. The Board met, discussed the
information, and denied his appeal on February 5, 1996. The Board determined
that the information provided by Mr. Pack established that he could have
performed the essential functions of his job as a tire builder. Mr. Pack brought
suit in federal court claiming the Board’s denial of benefits was arbitrary and
capricious. The district court granted the Plan’s motion for summary judgment
and Mr. Pack appeals that decision.
Discussion
I.
“We review the district court’s grant of summary judgment de novo,
applying the same legal standard used by the district court.” Charter Canyon
Treatment Ctr. v. Pool Co. , 153 F.3d 1132, 1135 (10th Cir. 1998). Summary
judgment is appropriate “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
“‘A court reviewing a challenge to a denial of employee benefits under
29 U.S.C. § 1132(a)(1)(B) applies an “arbitrary and capricious” standard to a plan
administrator’s actions if the plan grants the administrator discretionary authority
to determine eligibility for benefits or to construe the plan’s terms.’” Kimber v.
-4-
Thiokol Corp. , 196 F.3d 1092, 1097 (10th Cir. 1999) (quoting Charter Canyon ,
153 F.3d at 1135). It is undisputed that the Board had such discretion; thus, the
court applies an arbitrary and capricious standard in reviewing the Board’s denial
of benefits. See id .
Mr. Pack argues, however, that the Board was operating under a conflict of
interest and, therefore, the court should grant less deference to its decision.
[I]f a plan administrator is operating under a conflict of interest, the
court may weigh that conflict as a factor in determining whether the
plan administrator’s actions were arbitrary and capricious. The
Tenth Circuit has adopted a sliding scale, decreasing the level of
deference in proportion to the severity of the conflict. The conflict,
then, is weighed as one factor in determining whether the plan
administrator’s decision was arbitrary and capricious.
Pitman v. Blue Cross & Blue Shield of Okla. , 217 F.3d 1291, 1295 (10th Cir.
2000) (quotations and citation omitted).
Mr. Pack argues, for the first time on appeal, that the Board was operating
under a conflict of interest because the Board “served in the dual capacity of
insurer and adjudicator.” Appellant’s Br. at 8. We have recognized that there are
some circumstances in which a plan administrator can be operating under
a conflict of interest where it is both the plan administrator and the insurer.
See Pitman , 217 F.3d at 1295-96. It is a general rule, however, that this court
will not consider an issue on appeal that was not raised below. See Walker v.
Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992). Mr. Pack did not
-5-
make any legal argument before the district court that the Board was operating
under a conflict of interest, nor did he present sufficient factual evidence to
enable the district court to make a determination whether any such conflict of
interest existed. See Pitman , 217 F.3d at 1296 (discussing factors to be
considered by court in determining whether conflict of interest exists). Moreover,
the district court independently recognized the possibility that the Board had
a potential conflict of interest, and appropriately weighed this as one factor
in determining whether the Board’s decision was arbitrary and capricious.
See Appellant’s App. at 23.
II.
Under the arbitrary and capricious standard of review, we will not set aside
a plan administrator’s decision if it was based on a reasonable interpretation of
the plan’s terms and was made in good faith. See Jones v. Kodak Med. Assistance
Plan , 169 F.3d 1287, 1292 (10th Cir. 1999).
When reviewing under the arbitrary and capricious standard, the
Administrator’s decision need not be the only logical one nor even
the best one. It need only be sufficiently supported by facts within
[its] knowledge to counter a claim that it was arbitrary or capricious.
The decision will be upheld unless it is not grounded on any
reasonable basis. The reviewing court need only assure that the
administrator’s decision falls somewhere on a continuum of
reasonableness-- even if on the low end.
Kimber , 196 F.3d at 1098 (quotations omitted).
-6-
Mr. Pack raises several issues with respect to his claim that the Board’s
denial of benefits was arbitrary and capricious. First, he contends the Board
erroneously interpreted Dr. Hart’s report as a release for him to return to work.
After evaluating Mr. Pack for several months, Dr. Hart reported in September
1994, that while a review of the available literature “failed to reveal any
published material or opinions that would support a toxic exposure as the cause
of Mr. Pack’s condition,” Appellee’s Supp. App. at 101, nevertheless, “there is
a strong suggestion that Mr. Pack is sensitive or hypersensitive to the odors that
are present at his place of employment.” Id. at 102. In the disputed passage in
his report, Dr. Hart concluded:
While I feel that Mr. Pack is in good health at this time, I am
convinced that re-exposure to these odors or substances would
produce the symptoms that he experienced originally and for which
he was recently evaluated. Based on this then, my recommendations
would be that Mr. Pack could, in fact, return to work but would have
to avoid any future exposures to the substances which may have
created the symptoms originally.
Id.
The Board interpreted this as meaning that Mr. Pack was able to return to
work at the tire facility. Mr. Pack contends it would have been impossible for
him to return to work and still avoid the irritants at his job site. We conclude the
Board’s interpretation of Dr. Hart’s report was reasonable, because it is clear
from Dr. Hart’s report and the other evidence before the Board that Mr. Pack was
-7-
currently in good health and able to work, but that further observation of
Mr. Pack at work was needed in order to ascertain what, if any, odors or
substances at the tire facility were responsible for Mr. Pack’s symptoms and
whether Mr. Pack’s symptoms reoccurred if he worked in different areas of the
plant. Mr. Pack never attempted to return to work to see if he could avoid
exposure to whatever substance or odor may have triggered his symptoms; thus
there was no evidence before the Board to support his claim that he could not
return to work at the tire facility under any conditions.
Mr. Pack next contends the Board was inappropriately swayed by the Social
Security Administration’s (SSA) determination that he was not disabled. Because
the SSA’s standards for determining disability differ significantly from those used
to determine disability under the terms of the Plan, he contends this evidence was
inadmissable and improperly considered by the Board. He cites no authority
for this proposition. The Board took into consideration the SSA’s finding that
Mr. Pack’s chemical sensitivity “caused no severe physical limitations which
would prevent [him] from working.” Appellee’s Supp. App. at 105. This report
was only one item in the totality of information presented to, and considered by,
the Board. There is no evidence that the Board placed any conclusive or
otherwise undue reliance on this particular report, or that its consideration of
this report rendered its denial of benefits arbitrary and capricious.
-8-
Mr. Pack also contends it was inappropriate for the Board to have
considered the medical report from Dr. Carnahan, who opined that it was
necessary to attempt further trials to see if Mr. Pack was able to work in other
areas of the tire facility. Dr. Carnahan also noted that Mr. Pack seemed unwilling
to attempt a trial of work and had not returned to work status at the plant.
Mr. Pack disputes that he made no attempts to return to work and contends that
this dispute precluded a grant of summary judgment.
It is undisputed that Mr. Pack did not attempt to return to work after
February 1994. Dr. Carnahan’s recommendation that further trials at work be
attempted was written a year later, in February 1995. His recommendation was
consistent with an August 1994 medical report from the University of Oklahoma’s
Health Sciences Center recommending that Mr. Pack be observed at work to see if
a chemical effect could be observed and with Dr. Hart’s September 1994 report
that he could return to work if he avoided the as yet unidentified substance. Thus,
it is undisputed that after the August and September 1994 reports, Mr. Pack never
attempted to see if he could avoid exposure to irritating chemicals or odors at
work, or if he could work in other areas of the facility. Therefore, the Board’s
consideration of Dr. Carnahan’s report did not render its decision arbitrary or
capricious.
-9-
Mr. Pack also contends the Board erroneously relied on an early medical
diagnosis in June 1993 suggesting that the most likely cause of his illness was
a low blood oxygen level caused by his cigarette smoking. Mr. Pack contends
that he did stop smoking and that physicians later ruled out cigarette smoking as
a causative factor for his illness. This evidence, however, was never presented to
the Board. “An administrator’s decision is not arbitrary or capricious for failing
to take into account evidence not before it.” Sandoval v. Aetna Life & Cas. Ins.
Co. , 967 F.2d 377, 381 (10th Cir. 1992); see also Kimber , 196 F.3d at 1098
(“[t]he reviewing court may consider only the evidence that the administrators
themselves considered on or before the final decision denying benefits.”
(quotation omitted)).
Based on our review of the record on appeal, we agree with the district
court that Mr. Pack failed to establish a genuine issue of material fact that the
Board acted arbitrarily and capriciously in denying benefits. The record contains
-10-
substantial evidence in support of the Board’s determination. Accordingly, the
judgment of the United States District Court for the Eastern District of Oklahoma
is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
-11-