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

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit

10-9-2001

Skretvedt v. EI DuPont de Nemours
Precedential or Non-Precedential:

Docket 00-2918

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Recommended Citation
"Skretvedt v. EI DuPont de Nemours" (2001). 2001 Decisions. Paper 229.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/229

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Filed October 5, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2918

ORRIN T. SKRETVEDT, Appellant

v.

E.I. DUPONT DE NEMOURS AND COMPANY, a Delaware
Corporation; E.I. DUPONT DE NEMOURS AND COMPANY,
PLAN ADMINISTRATOR;* PENSION AND RETIREMENT
PLAN; HOSPITAL AND MEDICAL-SURGICAL PLAN;
DENTAL ASSISTANCE PLAN; NONCONTRIBUTORY
GROUP LIFE INSURANCE PLAN; CONTRIBUTORY GROUP
LIFE INSURANCE PLAN; TOTAL AND PERMANENT
DISABILITY INCOME PLAN; SAVINGS AND INVESTMENT
PLAN; TAX REFORM ACT STOCK OWNERSHIP PLAN;
SHORT TERM DISABILITY PLAN

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

On Appeal From the United States District Court
For the District of Delaware
(D.C. Civ. No. 98-cv-00061)
U.S. Magistrate District Judge: Honorable Mary P. Thynge

Argued: June 28, 2001

Before: BECKER, Chief Judge, NYGAARD and
REAVLEY,* Circuit Judges.

(Filed October 5, 2001)

_________________________________________________________________
* Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth
Circuit, sitting by designation.

JOHN M. STULL, ESQUIRE
(ARGUED)
1300 North Market Street, Suite 700
P.O. Box 1947
Wilmington, DE 19899

Counsel for Appellant

RAYMOND M. RIPPLE, ESQUIRE
(ARGUED)
 DONNA L. GOODMAN, ESQUIRE
Legal D-7012
E.I. du Pont de Nemours and
Company
1007 Market Street
Wilmington, DE 19898

Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

This is an appeal by Orrin T. Skretvedt, a former
employee of defendant E.I. Du Pont de Nemours &
Company ("DuPont"), from the order of the District Court
granting summary judgment for DuPont on Skretvedt's suit
alleging that DuPont had denied his claim for disability
benefits under its pension and benefits plans in violation of
the Employee Retirement Income Security Act ("ERISA"), 29
U.S.C. S 1001 et seq. For the reasons that follow, we will
reverse.

The appeal first presents several questions about our
scope of review, which we resolve in favor of applying the
arbitrary and capricious standard prevalent in ERISA
cases. We do not find the exceptions to that standard
applicable here. Most significantly, we do not think the fact
that DuPont's Associate Medical Director was involved in
evaluating Skretvedt's claim both during the initial
determination and on appeal creates a procedural
impropriety that heightens the standard of review.

2

Despite the demanding arbitrary and capricious test, we
conclude that the medical evidence of job-related stress
that Skretvedt presented clearly demonstrates that he is
eligible for disability benefits under Dupont's"Incapability
Retirement" pension plan, one of the forms of disability
benefits that he claims. Although we take the evidence in
the light most favorable to DuPont, we are not convinced by
DuPont's arguments that the medical evidence was
inconclusive or equivocal with respect to the severity or
permanence of Skretvedt's incapability to perform
successfully the duties of his position. Indeed, Dupont can
point to no truly conflicting medical evidence. Dupont's
decision was "without reason," and it was"unsupported by
substantial evidence." Pinto v. Reliance Standard Life Ins.
Co., 214 F.3d 377, 393 (3d Cir. 2000) (quoting Abnathya v.
Hoffman-La Roche, Inc., 2 F.3d 40, 45 (3d Cir. 1993)
(internal quotation marks omitted)). It was therefore
arbitrary and capricious, requiring us to reverse the grant
of summary judgment and to direct that summary
judgment be entered on the Incapability Retirement claim
in favor of Skretvedt.

I. Facts and Procedural History

Skretvedt worked as an environmental engineer for
DuPont from June 28, 1974, until February 7, 1995, when
he was discharged. At that time, Skretvedt held the position
of Senior Research Environmental Engineer at DuPont's
Spruance Plant in Richmond, Virginia. Among other things,
he was responsible for ensuring that the plant complied
with federal environmental regulations. Skretvedt's job
responsibilities and the pressures associated with them
increased significantly in 1994 when certain regulations
under the Clean Air Act went into effect and the
department where he worked was simultaneously
downsized.

In early 1994, Skretvedt began receiving treatments for
work-related anxiety from his family physician, Harold
Binhammer, M.D., who periodically prescribed to him the
anti-anxiety drug Lorazepam. Skretvedt took a leave of
absence from his job at the Spruance Plant beginning on
November 11, 1994, and did not return to work at Dupont

3

thereafter.1 In November 1994, Dr. Binhammer diagnosed
Skretvedt with depression, prescribed the antidepressant
Paxil and referred him to a psychiatrist, Graenum R. Schiff,
M.D. Dr. Schiff saw Skretvedt periodically beginning in
November 1994. Schiff put Skretvedt on a regular daily
dose of twenty milligrams of Paxil and referred him for
therapy with Teresa A. Buczek, Ph.D., a clinical
psychologist who specializes in work-related stress
disorders.

On December 5, 1994, James E. Layton, M.D., the
Medical Supervisor at the Spruance Plant, wrote to Drs.
Binhammer, Schiff and Buczek, requesting that they
complete medical report forms to help him prepare a
written opinion on whether Skretvedt's condition qualified
him for disability benefits under DuPont's pension plan. All
three doctors responded to Dr. Layton's request, giving
their diagnoses and medical opinions of the severity and
likely duration of Skretvedt's condition. We describe these
opinions in greater detail below.

DuPont fired Skretvedt on February 7, 1995, citing the
incident in which he was accused of taking home a
company fax machine without permission as the reason for
the discharge. See supra note 1. Skretvedt filed a claim
with the Equal Employment Opportunity Commission
(EEOC), alleging that DuPont violated the Americans with
Disabilties Act (ADA) by discriminating against him based
on his anxiety disorder. The EEOC found no violation of the
ADA based on the information that Skretvedt submitted,
and issued him a right-to-sue letter. By September 1995,
Skretvedt had contacted an attorney regarding his ADA and
disability benefits claims. On September 29, Skretvedt,
acting on the advice of counsel, signed a "Settlement
_________________________________________________________________

1. Skretvedt was not officially terminated until February 7, 1995. The
parties disagree about the reason that Skretvedt went on a leave of
absence. Skretvedt contends that he was put on medical leave on the
recommendation of his physician. DuPont counters that Skretvedt was
asked to go on leave pending the outcome of an investigation into his
taking home a fax machine from the office without permission (Skretvedt
claims that he took it home for work-related use). As will appear, the
alleged incident with the fax machine has little bearing on whether
Skretvedt is eligible for disability benefits under DuPont's pension plan.

4

Agreement and Release of All Claims" with DuPont. Under
this agreement, Skretvedt released all of his employment-
related claims against DuPont except for his application for
disability benefits, which DuPont agreed to review in a
"neutral" manner.

DuPont's pension plan provides two different long-term
disability benefits: (1) the "Incapability Retirement" pension
("incapability benefits"); and (2) the "Total and Permanent
Disability Income Plan" ("T & P benefits"). An employee is
eligible for incapability benefits if he is "permanently
incapable of performing the duties of his position with the
degree of efficiency required by the Company, and he has at
least 15 years of service." Under its separate T & P benefits
plan, DuPont provides additional benefits to individuals
who are "disabled by injuries or disease and presumably
will be totally and permanently prevented from pursuing
any gainful occupation." At all times relevant to this
litigation, it was the practice of DuPont's three-member
Board of Benefits and Pensions ("Board"), which was
responsible for administering both disability benefits plans,
to first determine whether an employee qualified for
incapability benefits.2 If so, the Board would determine
whether the employee also qualified for T & P benefits.

Following the September 29, 1995 settlement agreement,
the Board reviewed Skretvedt's claims for disability
benefits. The Board considered the medical evidence that
DuPont's Dr. Layton had collected from Skretvedt's treating
physicians and psychologist as well as a medical opinion
from Dr. Layton himself, and determined that Skretvedt
was not eligible for either type of long-term disability
benefits. On May 23, 1996, the Board denied Skretvedt's
application for both incapability and T & P benefits and
issued a one-page form letter denying his benefits claims.
The letter stated that Skretvedt had failed to show that he
was "permanently incapable of performing the duties of
[his] job with the degree of efficiency required by the
_________________________________________________________________

2. In April 1997, DuPont outsourced the task of reviewing all employee
benefits claims to an insurance company. However, Skretvedt's
application, both before and after 1997, was processed using the internal
review procedure that DuPont used before April 1997.

5

Company, at the time of [his] termination." It also advised
him that in order to succeed on his appeal he would need
to submit "additional objective evidence that will indicate a
total impairment of function." The letter provided examples
of such "objective evidence," including "tests such as MRI,
x-ray reports and complete medical evaluations," but
warned that "[o]pinions of healthcare providers are not
sufficient without objective medical evidence to support
such opinions."

Skretvedt contends that he and Dr. Binhammer sent
three letters to the Board's designated contact for appeals,
requesting clarification of the types of "objective medical
evidence" needed to perfect his application on appeal in
light of the fact that his claimed disability is psychological.3
After receiving no response for almost a year, Skretvedt
formally submitted his appeal to the Board on May 16,
1997. He included with his application updated letters from
the doctors who had examined him prior to his initial
application, as well as letters and evaluation forms from
other doctors. After hearing nothing from the Board for
more than three more months, Skretvedt wrote to DuPont
inquiring about the status of his appeal. He received no
immediate response.

Having received no response from the Board, Skretvedt
initiated the present lawsuit by filing a complaint on
February 4, 1998, invoking 29 U.S.C. S 1132(a)(1)(B), which
allows a beneficiary of an ERISA-governed benefits plan to
sue for "benefits due to him under the terms of the plan."
Skretvedt alleged that DuPont's pension and benefits review
board had violated ERISA by arbitrarily and capriciously
denying him disability benefits, by acting in bad faith, and
by operating under a conflict of interest. The parties
entered into a stipulation agreeing to stay the proceedings
until October 1, 1998, pending a final decision by the
Board on Skretvedt's appeal for disability benefits. The
parties also stipulated that the Board's decision on
Skretvedt's appeal would "be the only decision for the
purpose of judicial review of the denial of benefits."
_________________________________________________________________

3. DuPont denies receiving these letters.

6

Following the October 1, 1998 stipulation, Skretvedt
resubmitted the materials that he had included in his
initial appeal application as well as additional materials.
These included updated opinion letters from Drs.
Binhammer and Schiff, and a psychological evaluation
report and opinion letter from Richard B. Zonderman,
Ph.D., a licensed clinical psychologist who had performed
some standardized psychological tests on Skretvedt. All of
these physicians and psychologists concluded that
Skretvedt was unable to return to his previous job at
DuPont. Skretvedt also submitted the "Explanation of
Determination" that he received from the Social Security
Administration following the denial of an application that
he had filed for social security disability benefits. The
explanation concluded that Skretvedt's "condition prevents
[him] from doing the type of work that [he] has done in the
past," but that he did not qualify for social security
disability benefits because his disability "does not prevent
[him] from doing less demanding work that does not require
extensive public contact."

Skretvedt held two different jobs during the period
following his termination from DuPont. In the spring of
1995, he established his own furniture repair and
refinishing business. The business earned a modest profit
in 1995, but lost money in 1996, and Skretvedt was forced
to seek other employment. Beginning in May 1996,
Skretvedt took a job with the Virginia Department of Labor
as a compliance inspector. The position involved a two-year
training period, during which his job responsibilities
gradually increased. Skretvedt's work-related anxiety and
depression increased in 1998 as his training period ended.
As a result, Dr. Schiff recommended that Skretvedt take a
two-month medical leave of absence beginning on August
17, 1998. Skretvedt has since resigned from his position at
the Virginia Department of Labor.

The Board finally denied Skretvedt's appeal for disability
benefits on October 13, 1998. Following the Board's final
decision, discovery in the present suit proceeded, after
which the parties filed cross-motions for summary
judgment. Acting pursuant to 28 U.S.C. S 636, a magistrate
judge reviewed the motions and recommended that the

7

District Court grant DuPont's motion for summary
judgment and deny Skretvedt's cross-motion. The District
Court approved the report and issued the recommended
orders. Skretvedt now appeals. The District Court had
jurisdiction based on 28 U.S.C. S 1331 and 29 U.S.C.
S 1132, and we have jurisdiction under 28 U.S.C. S 1291.

We exercise plenary review over a district court's grant of
summary judgment. See Pi Lambda Phi Fraternity, Inc. v.
Univ. of Pittsburgh, 229 F.3d 435, 441 n.3 (3d Cir. 2000).
The familiar standards that we apply when reviewing
motions for summary judgment are set forth in the margin.4

II. Standard of Judicial Review of the Board's
Decision

Skretvedt argues that the District Court erred by
reviewing the Board's denial of his disability benefits under
the arbitrary and capricious standard, and that it should
have applied a heightened standard of review due to the
structural conflicts of interest and procedural irregularities
in DuPont's pension benefits review system. In Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), the
Supreme Court addressed the appropriate standard of
review for courts to apply when reviewing an employer's
denial of a benefit under an ERISA-governed plan. Drawing
on principles of trust law, the Court held that where, as
here, an employer's pension plan gives discretion to a plan
administrator or fiduciary to interpret the plan and make
benefits determinations, "a deferential standard of [judicial]
review [is] appropriate." Id. at 111. When reviewing the
denial of pension benefits under ERISA where the pension
plan commits discretion to the fiduciary, we have employed,
as Bruch directs, the "arbitrary and capricious" standard.
_________________________________________________________________

4. Summary judgment is proper if there is no genuine issue of material
fact and if, viewing the facts in the light most favorable to the non-
moving party, the moving party is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317
(1986). The judge's function at the summary judgment stage is not to
weigh the evidence and determine the truth of the matter, but to
determine whether there is a genuine issue for trial. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
 8

See, e.g., Keating v. Whitmore Mfg. Co., 186 F.3d 418, 420-
21 (3d Cir. 1999). A court reviewing a benefits denial under
the arbitrary and capricious standard must defer to the
plan administrator unless the administrator's decision was
"without reason, unsupported by substantial evidence, or
erroneous as a matter of law." Pinto v. Reliance Standard
Life Ins. Co., 214 F.3d 377, 393 (quoting Abnathya v.
Hoffman-La Roche Inc., 2 F.3d 40, 45 (3d Cir. 1993)
(internal quotation marks omitted)).

In Bruch, the Court also went on to state that "if a benefit
plan gives discretion to an administrator or fiduciary who is
operating under a conflict of interest, that conflict must be
weighed as a factor in determining whether there is an
abuse of discretion." 489 U.S. at 115 (quotation marks and
citation omitted). Interpreting this language, we have held
that even when a pension plan commits discretion to a
fiduciary or plan administrator, a reviewing court should
apply a heightened standard of review "either when the
plan, by its very design, creates a special danger of a
conflict of interest, or when the beneficiary can point to
evidence of specific facts calling the impartiality of the
administrator into question." Goldstein v. Johnson &
Johnson, 251 F.3d 433, 442 (3d Cir. 2001) (citing Pinto, 214
F.3d at 383-87).

In Pinto, we specifically identified two conditions that
indicate a special danger of a conflict of interest that would
warrant applying a heightened standard of review. These
are: (1) when a pension plan is unfunded, i.e., not
"actuarially grounded, with the company making fixed
contributions to the pension fund," 214 F.3d at 388, but
rather funded by the employer on a claim-by-claim basis;
and (2) when a plan is administered by an administrator
outside of the employer company, such as an insurance
company, that does not have strong incentives to keep
employees satisfied by granting meritorious claims. Id. In
circumstances that warrant a heightened level of review, we
have held that a court should use a sliding-scale approach,
examining each case on its facts to determine what level of
review to apply; the greater the danger of a conflict of
interest, the less deference the reviewing court should
apply. Id.

9

The parties do not dispute that DuPont's pension plan
gives substantial discretion to the Board to interpret the
terms of the plan and to administer benefits based on these
interpretations. Usually, this would counsel a court to
review the Board's decision under the arbitrary and
capricious standard. Skretvedt argues, however, that Pinto
requires us to apply a heightened standard in this case
because: (1) the T & P benefits at issue in this case are part
of an unfunded plan; and (2) there are procedural defects
in DuPont's pension and benefits review system. 5

As noted above, the Board first considered Skretvedt's
incapability claim, and finding that he did not qualify,
denied his claims for both incapability benefits and for
T & P benefits. DuPont does not make a regular actuarially
determined contribution to a fund that supports the
payment of benefits to employees who are totally and
permanently disabled, hence the T & P benefits that
Skretvedt applied for would be paid out of an unfunded
plan. DuPont's incapability benefits, however, which
Skretvedt also applied for, are part of a funded plan. As we
explain in the margin, the mere fact that the T & P benefits
plan is unfunded does not require applying a heightened
standard of review to the denial of funded incapability
benefits.6 However, a heightened standard of review might
_________________________________________________________________

5. Skretvedt also argues that the Board showed a general partiality
toward DuPont and a failure to appreciate its role as a fiduciary that
would justify applying a heightened standard of review under Pinto.
However, he does not document these contentions, and conclusory
contentions do not constitute "evidence of specific facts calling the
impartiality of the administrator into question." Goldstein, 251 F.3d at
442.
6. While it could conceivably be argued that the Board was biased in its
evaluation of Skretvedt's incapability benefits claim because it was
anticipating that a grant of incapability benefits would put it one step
closer to granting benefits under the unfunded T & P plan, we think that
this link to the source of the conflict (the unfunded plan) is too
attenuated to "create[ ] a special danger of a conflict of interest."
Goldstein, 251 F.3d at 442. As we observed in Pinto, all of the courts of
appeals that have considered the judicial standard of review over denials
of benefits governed by ERISA "appear to agree that some level of conflict
may be unavoidable and not every conflict will heighten the level of
scrutiny." 214 F.3d at 389. Here, the unfunded plan is at most indirectly
connected to the incapability benefits determination; therefore any
conflict that the T & P plan presents does not rise to the level at which
Pinto counsels heightening the standard of review.

10

be applicable to the Board's denial of Skretvedt's claim for
the unfunded T & P benefits, because of the potential
conflict under Pinto. Because we conclude that the Board's
reason for denying incapability benefits was arbitrary and
capricious, see infra Part III.B.4, and because the Board
relied on the same reason to deny T & P benefits, that
denial was also arbitrary and capricious. We therefore need
not decide whether a stricter standard of review is
applicable to the Board's denial of Skretvedt's claim for
T & P benefits.

Skretvedt also contends that there are defects in the
structure and procedure of DuPont's pension and benefits
review system that require us to apply a heightened level of
review. These arguments focus mainly on the role that Dr.
Benjamin Ramirez, Dupont's Associate Medical Director,
played in the Board's review of claims for disability benefits.
While he was not a member of the Board, Ramirez was
involved in evaluating applications for disability benefits at
both the initial stage and at the appeal level. During the
period relevant to this case, the initial determination to
deny an application for disability benefits was not made by
the three-member Board, but rather by two board
"delegates": Dr. Ramirez, and Herbert Watson, a DuPont
benefits administrator. If the delegates decided that the
employee did not qualify for the benefits that he claimed,
the employee was notified of the decision and informed that
he could appeal. At the appeal level, the three-member
Board (which did not include Ramirez or Watson), would
vote on whether to change the initial determination, relying
in part on Dr. Ramirez's recommendation, which he based
on his review of all of the medical evidence presented.

Skretvedt argues that two features of Dr. Ramirez's
participation in the evaluation process call into question
the Board's impartiality in a way that counsels increasing
the standard of review above arbitrary and capricious.

First, Skretvedt submits that it was improper for Dr.
Ramirez to be involved in the evaluation process during
both the initial benefits determination and the appeal. In
Skretvedt's view, Dr. Ramirez could not impartially advise
the Board regarding appeals from benefits denials if he
made the initial determination. But under the ERISA

11

regulations in effect during the times relevant to this case,
there was no requirement that the appellate decisionmaker
even be someone different from the initial decisionmaker.
See Brown v. Retirement Comm. of Briggs & Stratton
Retirement Plan, 797 F.2d 521, 534 (7th Cir. 1986); 29
C.F.R. S 2560.503-1(g)(1) & (2) (2000). Therefore, Ramirez's
roles as a decisionmaker in the initial proceeding and as an
advisor in the appellate proceeding are not evidence of a
conflict of interest that would require heightened review.7

Second, Skretvedt contends that, as DuPont's Associate
Medical Director, Dr. Ramirez necessarily acted as an
"advocate" for DuPont, and sought to convince the Board to
deny Skretvedt's claim on appeal. Skretvedt submits that
because DuPont had an advocate present at the Board
meetings, he also should have been permitted to have a
representative present.

In Grossmuller v. International Union, United Automobile,
Aerospace & Agricultural Implement Workers of America,
715 F.2d 853 (3d Cir. 1983), we held that in order to give
an ERISA-governed benefits claim "full and fair review" as
is required by ERISA S 503, 29 U.S.C. S 1133, a
decisionmaker must allow a claimant to make his case in
person (or through a representative) if the decisionmaker
receives testimony from a third party in opposition to
granting the claim. See id. at 858. Subsequent cases have
made it clear, however, that Grosmuller extends only to "the
situation wherein a third party is permitted to appear at a
meeting and provide factual information which the absent
claimant cannot refute." Hlinka v. Bethlehem Steel Corp.,
_________________________________________________________________

7. Dr. Ramirez's role as the initial decisionmaker and as an advisor on
the appeal level would be permitted even under the new and more
detailed regulations governing appeals from ERISA benefits
determinations, which will apply to claims filed on or after January 1,
2002. See 66 Fed. Reg. 35886 (July 9, 2001). The new regulations
require only that appellate review of a benefits claim be conducted by
"an appropriate named fiduciary of the plan who is neither the individual
who made the adverse benefit determination that is the subject of the
appeal, nor the subordinate of such individual." 29 C.F.R. S 2560.503-
1(h)(3)(ii) (2001). Here, Ramirez was not a member of the Board that
acted as the fiduciary decisionmaker in Skretvedt's appeal, nor is there
any evidence that the members of the Board were his subordinates.

12

863 F.2d 279, 287 (3d Cir. 1988). In this case, there is no
evidence that Dr. Ramirez presented any factual testimony
that Skretvedt did not have a chance to review. Ramirez
gave an opinion based on his review of the medical reports
from Skretvedt's own doctors and from Dupont's Dr.
Layton, all of which Skretvedt had seen. Nor is Ramirez a
"third party" as contemplated by Grossmuller.

In short, there is no reason to doubt the Board's
contention that Dr. Ramirez was acting merely as an
advisor to the Board rather than as an advocate for
DuPont. Therefore, the District Court was correct to apply
an arbitrary and capricious standard when reviewing the
Board's denial of Skretvedt's claim for incapability benefits.
We decline to reach the question whether a stricter
standard of review is applicable to the Board's denial of
Skretvedt's claim for T & P benefits.

III. The Board's Decision to Deny Skretvedt's Claim
for Incapability Benefits

A. Introduction

The language from DuPont's benefits plan that governs a
claimant's eligibility for incapability benefits is as follows:

An employee may be retired by the Company if the
Board of Benefits and Pensions finds that he has
become, for any reason, permanently incapable of
performing the duties of his position with the degree of
efficiency required by the Company, and he has at
least 15 years of service.

DuPont's Board interprets this language to require that the
claimant show that his or her incapability was permanent
at the time of his or her termination. DuPont presented the
following interpretation to the District Court:"[T]o receive
an award of benefits: (1) the applicant must present
evidence that he was permanently (as opposed to
temporarily) disabled; (2) at the time of the termination; and
(3) the severity of the disability at termination permanently
precluded the applicant from performing the duties of his
position." Mem. Op., Sept. 6, 2000, at 5 n.6. The Board's

13

interpretation of DuPont's pension and benefits plan is
entitled to deference under the arbitrary and capricious
standard, unless it is contrary to the plain language of the
plan. See Epright v. Envt'l Res. Mgmt., 81 F.3d 335, 339 (3d
Cir. 1996). Because DuPont's interpretation is consistent
with the plan's language, we apply it here when reviewing
the Board's denial of Skretvedt's claim for incapability
benefits.

The reasons that DuPont now offers for denying
Skretvedt's disability claims are that the medical evidence
that he presented was not sufficient to show that his
disability was permanent at the time of his termination,
and that the evidence was not sufficient to show that his
disability was severe enough to prevent him from
performing his previous job at DuPont. We find these
justifications to be post hoc because they were never offered
to Skretvedt following the denial of his initial claim or his
appeal.8
_________________________________________________________________

8. The original denial letter sent to Skretvedt merely restated the
requirements of the benefits plan, concluding that Skretvedt had failed
to show that he was "permanently incapable of performing the duties of
[his] job with the degree of efficiency required by the Company, at the
time of . . . termination," without providing any explanation of why the
Board reached that conclusion. Dr. Ramirez admitted in deposition that
the instruction that Skretvedt received in his initial denial letter
regarding what additional information he needed to provide on appeal in
order to succeed was a "boilerplate statement." Similarly, the letter that
the Board sent Skretvedt denying his appeal, while it listed the evidence
that the Board had before it, did not provide any specific reasons for
denying the appeal. The Board's failure to provide Skretvedt with
reasoned explanations for why it denied his disability claims or
information on what evidence he could present to improve his claims
raises policy concerns that underlie the notice requirements that ERISA
places on pension and benefit review boards. Specifically, the review
boards must give reasons to applicants for denying their claims so that:
(1) applicants may clarify their application on appeal; and (2) federal
courts may exercise an informed and meaningful review of the pension
boards' decisions.

Skretvedt argues that both the Board's initial letter denying his claims
and the letter denying his appeal provided insufficient notice of the
reasons for denial to satisfy the requirements of ERISA S 503, 29 U.S.C.

14

However, we will assume arguendo that it is proper for us
to consider these post hoc justifications. For the reasons
_________________________________________________________________

S 1133. Section 503 requires that employee benefit plans "provide
adequate notice in writing" of a claim denial"setting forth the specific
reasons for such denial." 29 U.S.C. S 1133(1); see also 29 C.F.R.
S 2560.503-1(g) (2001). Skretvedt contends that the letters violated S 503
by failing to provide reasons for the denial and by failing to provide an
explanation of what would constitute sufficient"objective" medical
evidence of a psychological disability. One of the main purposes for the
requirement that the denial letter provide specific reasons "is to provide
claimants with enough information to prepare adequately for further
administrative review or an appeal to the federal courts." DuMond v.
Centex Corp., 172 F.3d 618, 622 (8th Cir. 1999).

We find the lack of explanations in the denial letters that DuPont sent
Skretvedt troubling. We do not reach the question whether the notice
was legally inadequate under S 503, however, because we resolve this
appeal on the ground that, even fully crediting the post hoc rationales
offered by Dupont, the Board's decision to deny benefits was arbitrary
and capricious. For the same reason, we decline to reach the question of
what level of deference is owed to rationales for denying benefits under
an ERISA-governed plan that a pension board presents for the first time
in federal court. We take this opportunity, however, to underscore the
importance of pension boards providing specific reasons for denying
applicants' benefits claims, both so that applicants may introduce the
proper evidence on appeal and so that a federal court may exercise
meaningful review.

We note in this regard our agreement with the policy concerns
identified in University Hospitals of Cleveland v. Emerson Electric Co.,
202 F.3d 839 (6th Cir. 2000), where the court held that it would not
defer to post hoc rationales for denying benefits claims generated for the
purpose of litigation by ERISA plan administrators when those rationales
did not appear in the denial letters sent to the benefits claimants or in
the administrative record. The court observed that:

it strikes us as problematic to, on one hand, recognize an
administrator's discretion to interpret a plan by applying a
deferential "arbitrary and capricious" standard of review, yet, on
the
other hand, allow the administrator to "shore up" a decision after-
the-fact by testifying as to the "true" basis for the decision
after the
matter is in litigation, possible deficiencies in the decision are
identified, and an attorney is consulted to defend the decision by
developing creative post hoc arguments that can survive deferential
review. . . . To depart from the administrative record in this
fashion

15

that follow we nonetheless conclude that the Board's
proffered justifications are unconvincing in light of its own
interpretation of the eligibility requirements for incapability
benefits and the medical evidence before it.

B. The Medical Evidence Presented

Skretvedt submitted two sets of medical evidence to the
Board, one set with his initial application, and another set
with his appeal. Together, these two sets of medical
opinions make up the entirety of the medical evidence that
the Board had before it when it made its decision to deny
Skretvedt's benefits. Our disposition of the case turns on
whether this evidence is sufficient to demonstrate that
Skretvedt was permanently disabled at the time of his
termination and that his disability was (and continues to
be) severe enough to prevent him from "performing the
duties of his position with the degree of efficiency required"
by DuPont.
1. Items Submitted in Skretvedt's Initial Application

The items that Skretvedt submitted with his initial
application included several letters from his treating
physicians, Dr. Graenum Schiff and Dr. Harold
Binhammer, a letter from his treating clinical psychologist,
Dr. Theresa Buczek, and an evaluation form that Dr. James
Layton, the Spruance Plant's Medical Director, completed in
October 1995.

Skretvedt submitted an evaluation report from Dr. Schiff
dated November 16, 1994, which diagnosed him with an
"[a]djustment Disorder with anxious mood" and stated that
he suffered from "severe work stress." At the bottom there
were handwritten notes explaining that, since he had been
_________________________________________________________________

would, in our view, invite more terse and conclusory decisions from
plan administrators, leaving room for them -- or, worse yet,
federal
judges -- to brainstorm and invent various proposed "rational
bases" when their decisions are challenged in ensuing litigation.

Id. at 848 n.7.

16

taking the antidepressant drug Paxil, Skretvedt was"much
improved." On January 17, 1995, however, Dr. Schiff wrote
to Dr. Layton that although the antidepressant drug Paxil
was helping, Skretvedt "is no longer temperamentally suited
to do the job he was doing at his previous level of efficiency
. . . and for this reason I would recommend early
retirement."

In a letter dated January 26, 1995, Dr. Binhammer,
Skretvedt's family physician, explained that in November
1994, Skretvedt was in an "acute" state of depressive
anxiety, which was ameliorated with medication and with
his leave from work. Binhammer concluded that "Skretvedt
should not go back to his position as an Environmental
Engineer . . . because of the anxiety precipatated[sic] to
him by this type of work and then the resultant breakdown
in his psyche. At this time while not clearly definable as to
the length of time, I suspect it may be permanent."

Dr. Buczek, a clinical psychologist who treated Skretvedt,
wrote two letters to the Board regarding his condition. The
first, dated January 16, 1995, stated that Skretvedt was
suffering from emotional problems due to job pressure, and
that "[i]n regard to the question of whether these
impairments are temporary . . . I am still unclear. I
recommend that he be considered unfit for work activity for
the next 90 days. During that time in therapy, we can
better determine if he will be able to work at some other job
in DuPont. I do not believe that he will be able to return to
his former position, and that this is a very unlikely
possibility for now or the future." Dr. Buczek's second
letter, dated January 23, 1995, described Skretvedt's
symptoms in greater detail, but did not mention his fitness
for work or the permanence of his condition.

Finally, Skretvedt submitted an evaluation that Dr.
Layton completed in October 1995. The evaluation
diagnosed Skretvedt with an "Adjustment Disorder with
Mixed Emotional Features," and stated "Prognosis: guarded,
to be able to return to present job assignment . . . because
of his inability to concentrate and think coherently because
of stress." On the basis of the foregoing evidence, the Board
denied his benefits claims, stating that "the medical
evidence submitted does not support a conclusion that you

17

are permanently incapable of performing the duties of an
Environmental Engineer with the degree of efficiency
required by the Company. . . . In order for your appeal to
be successful, you must provide additional objective
evidence . . . ."

2. New Documents Submitted on Skretvedt's Appeal

Skretvedt relates that, at this point, he and Dr.
Binhammer sent a total of three letters requesting
clarification as to what kind of evidence they should submit
on appeal. DuPont denies receiving the letters. After he did
not hear anything further from DuPont, Skretvedt
attempted to get a complete set of psychological tests
performed. He then submitted several new sources of
medical evidence in his appeal application (in addition to
resubmitting the documents that he had included in his
initial application).9

The new documents that Skretvedt submitted with his
appeal application included: two letters from Dr. Richard B.
Zonderman, a clinical psychologist who in March 1997
performed a clinical interview and two types of standard
psychological tests for Skretvedt; updated letters from Drs.
Schiff and Binhammer; and a letter from the Social Security
Administration denying Skretvedt's claim for disability
insurance benefits.

The first Zonderman letter describes the clinical interview
and two standardized psychological tests: MMPI-2
(Minnesota Multiphasic Personality Inventory), and MCMI-
III (Millon Clinical Multiaxial Inventory). Based on his
examination of Skretvedt, Zonderman concluded that
Skretvedt was at that time experiencing many of the same
_________________________________________________________________

9. It is unclear whether the magistrate judge, when reviewing DuPont's
motion for summary judgment, considered the medical evidence that
Skretvedt submitted to the Board with his appeal application. The
magistrate judge's September 6, 2000 memorandum opinion cites and
discusses only the medical evidence that Skretvedt submitted in his
initial claim for disability benefits. However, it is proper for us to
consider all of the medical evidence that Skretvedt submitted since
DuPont represents that its Board considered all of the medical evidence
when it denied Skretvedt's appeal.

18

symptoms that he had complained of in 1994 and 1995,
and was suffering from a "prominent anxiety disorder."
Zonderman went on to conclude that "[w]hat began as a
work related situation has spread and now affects all
aspects of [Skretvedt's] life" and that"[r]eturn to a job
resembling the environmental engineering position which
caused [Skretvedt's] problems would most likely precipitate
post traumatic stress like symptoms." Zonderman also
stated that "[w]hatever the etiology, . . . underlying
personality features will make change difficult and
protracted." In his second letter, dated July 29, 1998,
Zonderman opined that Skretvedt's emotional problems had
been caused by his job, that some of the symptoms had
been treated by doctors before Skretvedt left his
employment with DuPont, that Skretvedt was still in
therapy in July 1998 with two different doctors, and that
"[h]e cannot return to a similar work environment . . . ."

The first letter from Dr. Schiff, dated May 9, 1997,
explained that he was writing to supply the evidence
required by the Board regarding the permanence of
Skretvedt's condition. The letter noted that Drs. Schiff,
Buczek, and Binhammer had all examined Skretvedt before
his termination and concurred that Skretvedt would never
be able to return to his position at DuPont. The letter
questioned the Board's requirement of "objective" evidence,
such as X-rays and MRIs, representing that such evidence
is impossible to obtain for psychiatric disabilities. Schiff
concluded by citing two pieces of "objective proof " of the
permanence of Skretvedt's psychiatric disabilities. First, he
related that when Skretvedt attempted to return to a job in
his old field of industrial hygiene (i.e., his job as a
compliance inspector at the Virginia Department of Labor)
"his symptoms returned and his condition deteriorated."
Second, he pointed out that several specialists had
examined Skretvedt and had all agreed that his condition is
permanent.

Dr. Schiff 's second letter, dated July 28, 1998, updated
the previous letter, stating that Skretvedt's anxiety disorder
had intensified as the two-year training program for his
entry-level industrial hygiene position was drawing to a
close, and that as a result, his medication had to be

19

increased. Dr. Schiff concluded that Skretvedt should not
be working at all. Moreover, on August 17, 1998, soon after
writing his second letter, Dr. Schiff recommended that
Skretvedt go on a two-month medical leave of absence.

An updated letter from Dr. Binhammer, dated May 9,
1997, stated that, as of that date, Skretvedt would respond
to stress with "post traumatic episodes," and that these
symptoms were the same as those "Skretvedt was
experiencing back in 1994." The letter noted that during
the time that Skretvedt worked as a furniture refinisher,
these episodes were less frequent because of the change of
job environment, but that when Skretvedt attempted to
return to his old field, the symptoms returned and
"escalated." The letter concluded: "My prognosis today is
the same as in 1995, with firmer conviction. More than two
years have passed and the problems . . . have continued.
. . . I think time and circumstance have proven our original
prognosis for Mr. Skretvedt. I continue to believe his
condition is total and permanent."

Finally, Skretvedt submitted the letter from the Social
Security Administration denying his claim for disability
insurance benefits. As discussed above, the SSA concluded
that Skretvedt was permanently unable to perform his
previous job at DuPont, but was ineligible for disability
insurance benefits because he was still able to perform
other work.

3. DuPont's Contentions Evaluated

DuPont contends that Skretvedt's medical evidence was
inconclusive with respect to showing (1) that his disability
was severe enough to render him incapable of performing
his former job at DuPont; and (2) that Skretvedt's disability
was permanent as of the time of his termination. The
District Court agreed. However, we find neither of these
arguments convincing in the face of the persuasive and
essentially unrebutted medical evidence that Skretvedt
presented to the Board.
DuPont challenges several of the pieces of medical
evidence that Skretvedt submitted, arguing that internal
contradictions or insufficiency in certain pieces of medical

20

evidence demonstrate that the medical documents are as a
whole equivocal or inconclusive with respect to either the
severity or the permanence of Skretvedt's disability, or
both. We take these up seriatim.

a. Documents Submitted with the Initial Application

DuPont first challenges two evaluations that diagnosed
Skretvedt with an "Adjustment Disorder," one from Dr.
Schiff in 1994 and one from Dr. Buczek in 1995. According
to the fourth edition of the Diagnostic and Statistical
Manual of Mental Disorders (DSM-IV), cited by DuPont,
adjustment disorders are generally triggered by a stressor,
"and last[ ] no longer than 6 months after the stressor or its
consequences have ceased." DSM-IV 625 (4th ed. 1994).
DuPont argues that this treatise demonstrates that the
psychiatric disorder that Drs. Schiff and Buczek diagnosed
is not permanent. This argument overlooks the fact,
however, that the DSM also states that "[i]f the stressor or
its consequences persist, the Adjustment Disorder may also
persist." Id. Drs. Schiff and Buczek made it clear in the
documents in which they diagnosed Skretvedt with an
adjustment disorder that the stressor that triggered the
adjustment disorder was Skretvedt's job at DuPont.

More particularly, the narrative section of Dr. Schiff 's
1994 medical evaluation form focused on Skretvedt's
complaints about the stresses of his job at DuPont.
Furthermore, Dr. Buczek's January 16, 1995 letter
concluded that "[t]his diagnosis and these symptoms
appear to be related to increased job pressures and
responsibilities." The relevant question with respect to
Skretvedt's eligibility for incapability benefits is whether his
disability renders him permanently incapable of doing his
previous job. Therefore, the DSM's statement that an
adjustment disorder will usually last no longer than six
months after the removal of the triggering stressor does not
diminish the force of the diagnosis when the stressor that
the diagnosing doctors identified is Skretvedt's previous job.

DuPont next submits that notes from Dr. Schiff and a
medical report from Dr. Binhammer show that Skretvedt's
medical condition improved quickly once he started

21
treatment with the antidepressant drug Paxil, and that
therefore the condition is not permanent. Handwritten
notes at the end of Dr. Schiff 's November 16, 1994 medical
report indicate that Skretvedt was "much improved on
Paxil." A January 26, 1995 letter from Dr. Binhammer also
notes that Skretvedt's "Depressive Medical illness [had]
improved." But the fact that Dr. Schiff 's notes and Dr.
Binhammer's letter indicate that Skretvedt's depression
improved with medication does not mean that his condition
no longer rose to the level of severity that would prevent
him from doing his previous job at the required degree of
efficiency.

Reading these statements in the context of the totality of
the reports and letters in which they appear, it is clear that
Drs. Schiff and Binhammer meant that Skretvedt's
condition had improved, not that it had improved to a point
where he was capable of performing his previous job at
DuPont. For example, in the same letter in which
Binhammer wrote that medication and therapy had
improved Skretvedt's depression, he also wrote that"Mr.
Skretvedt should not go back to his position as an
Environmental Engineer . . . because of the anxiety
precipatated [sic] to him by this type of work and then the
resultant breakdown in his psyche."

DuPont also points to the statements that Dr. Buczek
made about the permanence of Skretvedt's condition in the
materials that Skretvedt submitted with his initial
application for disability benefits. Specifically, DuPont cites
a recommendation that Buczek made in her January 16,
1995 letter -- that Skretvedt should be "considered unfit for
work activity for the next 90 days" and that he should be
reevaluated at that time. However, the next sentence in
Buczek's letter makes it clear that while she held out hopes
that Skretvedt might at that time "be able to work at some
other job at Dupont," she did "not believe that he w[ould]
be able to return to his former position."

b. The Period from 1995 to 1997

DuPont submits that two different aspects of the evidence
presented regarding Skretvedt's condition during the period

22

from 1995 to 1997 show that the evidence is equivocal and
that therefore the Board's denial of disability benefits was
reasonable.
DuPont first contends that Skretvedt's failure to present
evidence that he received treatment from February 1995
through March 1997 shows that his condition was either
insufficiently severe or that it was temporary. But
Skretvedt's failure to present evidence that he was treated
during this period does not mean, as DuPont suggests, that
treatments were suspended because the disability no longer
existed. Such an inference is unreasonable in light of the
statement of Dr. Layton, the Spruance Plant's Medical
Director, that as of October 1995, Skretvedt told him that
he had stopped receiving treatment from Drs. Schiff and
Buczek because of the expense. Skretvedt's attorney
confirmed at argument that Skretvedt had no health
insurance during much of the period from 1995 to 1997
and was unable to pay for treatments.

DuPont next argues that the fact that Skretvedt held a
job at the Virginia Department of Labor during the period
from 1995 to 1997 that was generally in the same field as
his job at DuPont shows either that his condition was not
so severe that it would have prevented him from doing his
old job at DuPont, or that the condition was not
permanent, i.e., it had improved enough for him to take a
position similar to the one he held at DuPont. The
circumstances surrounding Skretvedt's job at the Virginia
Department of Labor, however, demonstrate otherwise.

Motivated by financial necessity, Skretvedt abandoned
his furniture refinishing business, and took what was,
according to a letter from Dr. Binhammer, an entry-level
position as a compliance inspector with the Virginia
Department of Labor. Both Drs. Schiff and Binhammer
opined that Skretvedt's job as a compliance inspector had
made his psychological condition as bad or worse than it
was during the last year of his employment at DuPont. Dr.
Schiff wrote that "[a]s the end of [the] training approached
. . . and full responsibilities were assumed, he experienced
a serious escalation in symptoms." Similarly, describing
Skretvedt's job at the Department of Labor, Dr. Binhammer
concluded that when Skretvedt returned to "even a similar

23

work situation [to his job at Dupont,] the condition
returned with even more severity." Given these descriptions
of the return of Skretvedt's symptoms, the fact that
Skretvedt worked for a time in an entry-level position at the
Virginia Department of Labor that was generally in the
same field as his previous job at DuPont does not rebut or
render inconclusive the medical evidence of his permanent
inability to do his previous job at DuPont.
c. Documents Submitted to the Board for the First
Time in the Appeal Application

DuPont argues that the 1997 report from Dr. Zonderman
contains only "general, conclusory" statements, and could
be interpreted as stating only that current stressors in
Skretvedt's life in 1997 were causing his illness. In
addition, DuPont contends that Dr. Zonderman's diagnosis
that Skretvedt suffered from an Axis I disorder of"Major
Depression, single episode, moderate chronic," indicates
that the condition is not permanent. Zonderman's report,
however, also diagnosed Skretvedt with a psychological
syndrome that it described as a "longstanding behavioral
pattern," and recommended that Skretvedt receive
immediate treatment with both drugs and psychotherapy.
In a follow-up letter dated July 29, 1998, Zonderman
indicated that he had been treating Skretvedt since his
initial evaluation, and that he continued to show symptoms
of post-traumatic stress disorder.

Dupont also challenges the sufficiency of Schiff 's and
Zonderman's follow-up letters from 1997 and 1998,
asserting that they are conclusory and that they do not
provide conclusions as to whether Skretvedt's condition is
treatable or permanent, or whether it existed at the time of
his termination. We are unpersuaded. These brief letters
were merely introduced to update letters written earlier,
which do state case dispositive conclusions. Dr. Schiff 's
earlier letter specified his opinion that Skretvedt's condition
was permanent. Dr. Zonderman, in his 1998 letter,
specifically stated that all of the problems began during
Skretvedt's DuPont employment.

24

4. Summary--Applying DuPont's Standard for
Eligibility to the Medical Evidence

The question that the Board faced when reviewing
Skretvedt's appeal application was whether in light of all
the medical evidence presented, he demonstrated that he
was "permanently . . . disabled; at the time of the
termination; and [that] the severity of the disability at
termination permanently precluded [him] . . . from
performing the duties of his position." Mem. Op., Sept. 6,
2000, at 5 n.6. The dispositive question is whether,
applying the Board's interpretation of Dupont's benefits
plan and taking the evidence in the light most favorable to
DuPont, the Board's denial of Skretvedt's claim for
incapability benefits was arbitrary or capricious, i.e.,
whether it was "without reason [or] unsupported by
substantial evidence." Pinto, 214 F.3d at 393 (quoting
Abnathya v. Hoffman-La Roche Inc., 2 F.3d 40, 45 (3d Cir.
1993) (internal quotation marks omitted)).

In light of the foregoing medical evidence, we conclude
that even under the deferential arbitrary and capricious
standard, DuPont's denial of Skretvedt's incapability
benefits claim must be rejected because it was unsupported
by substantial evidence. The medical evidence provides
clear support for all three of the elements of the eligibility
requirements for incapability benefits as DuPont defines
them. It shows that Skretvedt had a psychological disability
that: (1) is severe enough to prevent him from performing
his previous job at the required level of efficiency; (2) is
permanent; and (3) existed as of the date of his
termination. Indeed, the medical experts who examined
Skretvedt concluded unanimously that his psychological
condition was severe enough to prevent him from
"performing the duties of his position with the degree of
efficiency required" by DuPont. While in 1994 and 1995
some of the doctors expressed uncertainty about the
duration for which Skretvedt would be required to forego all
work, all concluded that he could not return to his old job.

Moreover, the follow-up statements of Skretvedt's
examining physicians and the supplemental medical report
and letter from Dr. Zonderman confirm their initial
opinions that Skretvedt's psychological disability is

25

permanent. In these documents, all of the doctors who
submitted evaluations for Skretvedt's initial application
reaffirmed their conclusion that he is not capable of
performing his old job at DuPont, lending support to their
previous conclusions that the condition is permanent. Dr.
Zonderman's evaluation reached the same conclusion, and
linked Skretvedt's psychological condition to the stresses
that he faced at work at DuPont.

The letters from Drs. Schiff, Binhammer, and Buczek
also establish that Skretvedt's condition existed before his
termination from DuPont in February 1995. All three of
these doctors examined Skretvedt and diagnosed his
disorder before he was fired. We find it relevant that Drs.
Binhammer and Schiff had long-term treatment
relationships with Skretvedt and that therefore they were
uniquely able to provide detailed longitudinal information
on Skretvedt's condition. We have long recognized that in
the analogous area of disability benefits determinations
under the Social Security Act, the "opinions of a claimant's
treating physician[s] are entitled to substantial and at times
even controlling weight." Fargnoli v. Massanari, 247 F.3d
34, 43 (3d Cir. 2001); see also Cotter v. Harris , 642 F.2d
700, 704 (3d Cir. 1981).

For the reasons stated above, although we take the
evidence in the light most favorable to DuPont, we are not
convinced by DuPont's arguments that the medical
evidence was inconclusive or equivocal with respect to the
severity or permanence of Skretvedt's disability. Because
the medical evidence that Skretvedt presented makes it
clear that he meets the eligibility standards for incapability
benefits, and the Board can point to no conflicting medical
evidence, we find that the Board's decision was arbitrary
and capricious because it was "without reason" and it was
"unsupported by substantial evidence." Pinto, 214 F.3d at
393 (quoting Abnathya v. Hoffman-La Roche Inc. , 2 F.3d 40,
45 (3d Cir. 1993) (internal quotation marks omitted)). The
order of the District Court granting summary judgment in
favor of DuPont and denying summary judgment in favor of
Skretvedt on the claim for incapability benefits will
therefore be reversed, and the case remanded to the
District Court with directions to grant summary judgment

26

in favor of Skretvedt on the claim for incapability benefits.
See, e.g., Canseco v. Constr. Laborers Pension Trust, 93
F.3d 600, 609 (9th Cir. 1996) (no remand is necessary
where no new factual determinations remain). Finally,
because the Board denied Skretvedt's claim for T & P
benefits for the same reasons that it denied his claim for
incapability benefits, we will vacate the District Court's
order granting summary judgment on the count challenging
the Board's denial of Skretvedt's application for T & P
benefits and remand it to the District Court. We assume
that the District Court will direct that DuPont's Board
consider this claim in the first instance, since even though
Skretvedt is incapable of performing the duties of his
previous position at DuPont, he may nevertheless be
ineligible for T & P benefits.10

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________

10. Skretvedt has also requested that he be awarded attorneys' fees
pursuant to ERISA's discretionary fee-shifting provision. That section
provides that in any action under ERISA "by a participant, beneficiary,
or fiduciary, the court in its discretion may allow a reasonable
attorney's
fee and costs of action to either party." 29 U.S.C. S 1132(g)(1). The
question whether to award attorneys' fees to Skretvedt is a matter of
discretion, which we remand for the District Court to consider guided by
the five-factor analysis applied by courts in this circuit when
considering
such fee applications. See McPherson v. Employees' Pension Plan of Am.
Re-Insurance Co., 33 F.3d 253, 254 (3d Cir. 1994).

27