HURON FORGE AND MACHINE COMPANY - UAW RETIREMENT INCOME PLAN

In re Disability Application of [JRG], Claimant. ________________________/

DECISION OF THE IMPARTIAL CHAIRMAN

February 10, 1984

After a Hearing Held 11/11 & 12/2/83

Thomas Khederian, Esq., Attorney for Claimant

For the Union: WEST SIDE LOCAL NO. 174, UAW 6495 W. Warren Avenue Detroit, Michigan 48210 Edward M. Angeluski International Representative, UAW Union Committee Members: Lugene Nelson John Sharp Will B. Sanders

For the Company:

HURON FORGE AND MACHINE COMPANY 9041 Alpine Avenue Detroit, Michigan 48204 Robert J. Battista, Esq. Attorney for Company Company Committee Members: William H. Purdy Douglas A. Frederick Carl E. Demaree

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Decision The Company is correct in its contention that [Claimant]'s application is

not governed by the collective bargaining agreement dated October 6, 1979 [Jt

Ex 15]. However, for the reasons explained below, I vote to approve

[Claimant]'s application for a disability pension under the terms of the collective

bargaining agreement in effect at the time of his application [Jt Ex 14].

Factual Background

The claimant, [JRG], was employed by the Company, Huron Forge and

Machine Company, on July 13, 1965. During the course of his employment,

[Claimant] was a member of and represented by the Union, West Side Local

No. 174 of the United Automobile, Aerospace and Agricultural Implement

Workers of America ("UAW"). [Claimant]'s last day worked was June 15,

1977, at which time he went on sick leave for hypertension. [Claimant] was not

in good health, having taken sick leave for hypertension some two years earlier.

[Claimant] has not worked at all since his last day with the Company in 1977.

After leaving work, [Claimant] applied for Social Security disability

benefits, Workers' Compensation and a Disability Retirement Benefit from the

Huron Forge and Machine Company - UAW Retirement Income Plan ("Plan")

[Jt Ex 1, §2.3, p 4]. [Claimant]'s original application for Social Security benefits

was denied in a decision dated August 14, 1978 [Jt Ex 11, p 4]. However, his

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Workers' Compensation claim was redeemed by order dated August 30, 1979

[Jt Ex 5]. As part of the settlement of his Workers' Compensation claim,

[Claimant] executed a Release and Waiver of Seniority dated June 28, 1979 [Jt

Ex 4]. On that same date, [Claimant] filled out an application for a Disability

Retirement Benefit from the Plan [Jt Ex 3]. It is from a denial of this application

that the instant dispute arises.

Procedural Posture of Case The Plan's Administrative Committee met on August 9, 1979 to consider

[Claimant]'s application. From the minutes of that meeting [Co Ex 1], it appears

that the Committee reviewed the provisions of the Plan document pertaining to

Disability Retirement Benefits and two statements submitted by Dr. Bernard

Dash, [Claimant]'s physician [Un Ex 7A-B]. Although Dr. Dash opined that

[Claimant] was disabled1, the Committee was aware that the Social Security

Administration had reached a contrary conclusion2. In an effort to resolve the

conflict regarding [Claimant]'s physical condition, the Committee, acting under

Plan §4.2(c)(l), p 12, referred [Claimant] to Dr. Sonia Ramirez for examination

[Jt Ex 6-7].

Although the Plan document provides in pertinent part that "[t]he

decision of such physician *** shall be conclusive as to the physical *** 1 For a discussion of Dr. Dash's criteria, see infra. 2 For a discussion of the Social Security criteria, see infra.

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condition of such disabled Employee," Dr. Ramirez* report [Jt Ex 8] was

anything but conclusive. Although the final paragraph is labeled "Conclusion",

nothing in that paragraph or in the rest of the report gives Dr. Ramirez' opinion

as to whether or not [Claimant] is permanently and totally disabled within the

meaning of Plan §1.17, p 2.

Following receipt of Dr. Ramirez' report, the Committee met on April 30,

1980 and voted unanimously to deny [Claimant]'s application [Co Ex 2]. The

letter informing [Claimant] of the Committee's decision also apprised him of his

appeal rights under Plan §8.4, p 19 [Jt Ex 9]. In response, on May 27, 1980,

[Claimant] wrote the Committee, asking that his application be put on hold

pending a new hearing on his application for Social Security disability benefits

[Jt Ex 10].

The matter was held in abeyance until the issuance of a favorable

decision on [Claimant]'s Social Security application by Administrative Law

Judge Arthur Yim on February 25, 1982 [Jt Ex 11]. Upon learning of the award,

the Company members of the Committee sought advice from the Plan actuary

[Co Ex 5A-D]3; the Union members requested a meeting [Jt Ex 12].

The Committee met April 26, 1982 and split along organizational lines

over [Claimant]'s application. However, the minutes [Co Ex 3] reflect: 3 On substantive issues of this case, the actuary's advice respectfully is disregarded since he purports to decide the very questions before the impartial chairman.

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In view of the split vote, it was the unanimous decision of the Committee that letters be sent to John Hancock requesting *** information on *** their proof of disability and Dr. Sonia Ramirez, M.D., examining physician for specific medical opinion of his case.

Although a letter to John Hancock was drafted [Un Ex 6], it was never sent, nor

was one sent to Dr. Ramirez. A letter dated April 27, 1982 [Un Ex 11] was sent

to [Claimant] informing him that a hearing was to be held in his case, although

no date was set.

The debate over resolution of the Committee's deadlock was renewed on

August 24, 1982 and continued into 1983. The Union filed a grievance, to

which the Company responded that an impartial chairman should be selected

pursuant to Plan §8.1, p 18 and §8.6, p 19. This procedure finally was agreed

upon.

A hearing was held before an impartial chairman on November 11, 1983

and continued on December 2, 1983. Present were the claimant and his counsel.

Also present were the three Company Committee members and the three Union

Committee members. The case for the claimant and Union was presented by an

International Representative from the UAW. The case for the Company was

presented by outside counsel. At the conclusion of the hearing, the claimant

stated that he was satisfied with the representation afforded him by his Union

and agreed that he had received a full and fair hearing. Counsel for the claimant

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and Company filed post-hearing briefs on January 23, 1984, while the Union

filed a brief at the time of hearing.

Discussion At the outset, it should be noted that the collective bargaining agreement

dated October 6, 1979 [Jt Ex 15] ("1979 Agreement") and the Plan as amended

by the 1979 Agreement [Un Ex 1] have absolutely no application to this case.

The 1979 Agreement covers all Company "employees" except office workers,

the salaried and supervisors [1979 Agreement, Art I, §1, p 1 and §4, p 2].

Although there is some debate as to whether the effective date of the claimant's

Release and Waiver of Seniority [Jt Ex 4] ought to be June 28, 1979 or the

August 30, 1979 date of the Redemption Order [Jt Ex 5], in either case the

claimant was not an "employee" of any sort as of October 6, 1979 because, by

the express terms of the release, he "voluntarily quit his employment with the

*** Company."

Although the 1979 Agreement did make some what might be called

"retroactive" changes in the Plan [1979 Agreement, pp 76-78], the parties were

careful to delineate which changes applied to past retirees and which applied

only to new retirees. There is nothing whatsoever to indicate that ¶C.l on p 76 of

the 1979 Agreement is to be given effect to anyone who was not an "employee"

at the time. The language of the Second Amendment to the Plan [Un Ex 1],

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signed by the Union and the Company in implementation of the 1979

Agreement, strongly reinforces this conclusion:

NOW, THEREFORE, the Parties Hereby Agree that the Plan shall be amended effective as of October 6, 1979, which amendment for all purposes shall be effective as of October 6, 1979, except as provided specifically herein, with respect only to Employees represented by the Union in active employment with the Company on or after October 6, 1979.

The Union urges that the disability provisions of ¶C.l, p 76 of the 1979

Agreement were not accurately embodied in the Second Amendment. Although

there may be some merit to this point, it is irrelevant to the issue of the effective

date of the Second Amendment. Thus the claimant is entitled, if at all, to a

disability pension only under the terms of the Plan as it existed prior to the 1979

Agreement.

To qualify for a disability pension under Plan §2.3, p 4, the claimant must

satisfy the definition found in Plan §1.17, p 2:

"Permanent and Total Disability" means a physical or mental condition *** of an Employee which totally and permanently prevents such Employee from engaging in any regular full time occupation or employment for remuneration or profit.

The claimant in his brief urges that the "occupation or employment" must be

with the Company but this narrow interpretation does not comport readily with

the broad language which the parties chose to express their intent. Thus the

ultimate issue is whether the claimant was or was not able to engage in any

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regular full time occupation or employment for remuneration or profit as of the

date of his application for a disability pension, June 28, 1979.

The evidence on this point, especially when reviewed by a medical

layman almost 5 years later in 1984, is far from satisfactory. It is all the more

unsatisfactory when one considers that the sad state of the evidence is due to the

refusal of some Committee members to seek clarification of Dr. Ramirez1

report [Jt Ex 8] which, according to the express terms of the Plan document, is

supposed to be dispositive [§4.2 (c) (1), p 12].4 Indeed, seeking such a

clarification is so easy, so obvious a solution to the problem that I would vote

for it without hesitation except for the fact that [Claimant]'s application has been

pending for almost 5 years. This dispute simply must come to an end. The

evidence, such as it is, must be examined in its present state.

The original evidence which [Claimant] submitted in support of his

application consisted of two medical reports on John Hancock insurance forms

4 The explanation offered is that these Committee members became convinced that the 1979 Agreement had some retroactive effect or that it codified past practice of awarding disability pensions on the basis of Social Security awards. As has been discussed, the language of both the 1979 Agreement and the Second Amendment implementing it negate any suggestion of retroactivity. As to past practice of granting disability pensions on the basis of Social Security awards, the testimony was highly conflicting. Some of the very Committee members who were alleged to have voted to award disability pensions on the basis of Social Security awards flatly denied doing so. Documented evidence of past practice was offered only in the form of the complete files of previous claimants without any summary, synopsis or digest from which the Committee's decision-making process could be reviewed. Nothing short of retrials of earlier cases could have established the basis for the Committee's decisions. If the Committee wants its decisions to be helpful as precedents, it should consider embodying them in a useful, written form. There was a suggestion that some Committee members led the claimant to believe that a favorable decision from Social Security automatically would entitle him to a disability pension under the Plan. A Committee member's authority to make such a representation is clearly restricted by Plan §8.9, p 20 and a member does so at his own legal peril.

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signed by [Claimant]'s personal physician, Dr. Dash [Un Ex 7A-B]. The

Company contends that the definition of disability used by Dr. Dash is different

than that found in Plan §1.17, p 2. However, a consideration of Un Ex 7A

reveals Dr. Dash diagnosed [Claimant] as having "Epilepsy. Hypertensive

cardiovascular disease. Rheumatoid Arthritis. Cerebral Ischemia Drop Attack.

Atherosclerosis. Syncope. Cephalgia" and opined (a) that [Claimant] was totally

disabled for his regular occupation and for any occupation, and (b) that

[Claimant] would never be able to resume any work in his regular occupation or

in any occupation. Not a perfect match with the Plan definition, but really very

close. In Un Ex 7B, Dr. Dash basically reiterated his earlier diagnosis and

opinion.

The more difficult question is the correct interpretation of the opinion of

Administrative Law Judge Yim [Jt Ex 11]. It is unclear if Judge Yim had before

him Dr. Dash's February 15, 1978 report [Un Ex 7A], either at the original

hearing in 1978 or at the subsequent one in 1982. It is important to note that the

Committee, consisting of legal laymen, did not seek the advice of counsel in

deciding how to interpret Judge Yim's opinion or what weight it should be

given.

The Company contends [Co Brief, p 9] that Judge Yim in 1982

concluded that [Claimant] “‘still has the residual functional capacity to perform

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sedentary work.’” However, a close reading of Judge Yim's opinion indicates

that he actually wrote [Jt Ex 11, p 5]:

[T]he Administrative Law Judge concludes and finds that the claimant still has the residual functional capacity for no more than sedentary work. (Emphasis supplied)

See also Claimant's Brief, p 1. This choice of language reveals a change from

that on the previous page:

In a decision dated August 14, 1978, it was determined that the claimant *** had the residual functional capacity to perform sedentary work and was, therefore, not disabled ***.

To say that a car was going no more than 60 miles per hour is not to say

that the driver necessarily was speeding. He may have been driving 55, yet the

description remains true as stated. By analogy, although Judge Yim in 1978

affirmatively found that [Claimant] had the capacity to perform sedentary work,

in 1982 he weakened that finding to no more than sedentary work; that is,

[Claimant] may not have had the capacity to do sedentary work, just as the

driver may not have been speeding. If Judge Yim had meant only that

[Claimant] could do sedentary work in 1982, he could have said it quite as

distinctly and succinctly as he did in 1978.

When one considers the task before a decision-maker like Judge Yim, it

is not difficult to understand why he may have phrased his opinion as he did.

What Judge Yim may have done is decided [Claimant]'s case by taking the easy

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way out. Judge Yim could have reviewed all of the detailed, complicated

medical evidence in the case and found [Claimant] to be disabled and thus

entitled to disability benefits or he could have found for [Claimant] based upon

what might be called a procedural point, or technicality. If the case could be

resolved readily and easily on the basis of a technicality, there was no incentive

for Judge Yim to undertake the more difficult, time-consuming task of delving

deeply into medical evidence and reaching the real merits on [Claimant]'s

physical condition.5 We shall never know for sure, because Judge Yim did not

give us the benefit of his thought processes. In any event, it is my conclusion

that too much weight has been given to Judge Yim's opinion [Jt Ex 11].

It is always somewhat unsatisfying to dissect legal opinions because

more tends to be read out of them than is written into them. With the foregoing

discussion freshly in mind, the absence of a definitive opinion from Dr. Ramirez

becomes all the more distressing. She does not say that [Claimant] is disabled

within the meaning of the Plan; on the other hand, she does not say that he is

not. Like Judge Yim's opinion, Dr. Ramirez' report compels no conclusion one

way or the other. 5 There was indeed evidence that [Claimant]'s condition had deteriorated between August 14, 1978 and February 25, 1982; see the last paragraph of Judge Yim's opinion on p 4. Because of the disposition of the opinion, it is unnecessary to discuss the differences between the Social Security definition of disabled and that used in the Plan, although the one used by Social Security generally is considered to be more liberal. The point is that if one had all of the medical evidence available to Judge Yim and all that placed before the Committee, one might conclude that [Claimant] is disabled under both definitions, No explanation was offered as to why the claimant did not submit to the Committee the medical evidence which he submitted to Social Security, or why the Committee did not request such a submission, especially in light of the great weight which it placed on Judge Yim's opinion.

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In summary, the evidence before me is as follows: 1. Claimant with history of hypertension. 2. Last day worked 6/15/77. 3. Dr. Dash's report 2/15/78 saying claimant disabled essentially within

meaning of Plan. 4. Social Security decision 8/14/78 denying disability but without indication

of whether doctor's report (3) was considered. 5. Dr. Dash's report 6/28/79 confirming earlier report 6. Application for disability pension 6/28/79. 7. Dr. Ramirez' report 10/9/79 indicating hypertension and extreme obesity

but reaching no conclusion on disability under Plan. 8. Social Security decision 2/25/82 granting S.S. disability without reaching

full merits of claimant's medical condition. 9. Undisputed fact that claimant has not worked at all since 6/15/77, i.e., in

over 6 years. I conclude that the claimant has, by the narrowest of margins, established that he

is permanently and totally disabled within the meaning of Plan §1.17, p 2.

In so deciding, I am not unmindful of the fact that the minutes6 reflect the

Committee voted unanimously on several occasions to deny [Claimant]'s

6 Minutes of Committee meetings were received over objections that they were incomplete, inaccurate or had not been approved by Committee members; see, e.g., Jt Ex 16. There is no reason to doubt the integrity of the Committee secretary who wrote the minutes nor is there any reason to attribute to him any sinister motive. This being the case, minutes written contemporaneously with the events described therein are as good or better evidence than witnesses' memories of the same events long past. If the Committee wants its minutes to have precedential value, and especially if the Committee expects to rely on the minutes to prove that it acted prudently, then procedures might be adopted for circulating and approving minutes as soon as they are prepared.

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application because members felt he did not meet the Plan's criteria for a

disability pension. If the regular members of the Committee have doubts about

the status of the claimant's health, they can exercise their discretion under Plan

§4.2(b)(2), (3) and (c)(l) to require that the claimant submit to a new physical

examination.

In the meantime, [Claimant] is entitled to a Disability Retirement Benefit

retroactive to the date of his application, June 28, 1979 (unless the Committee

sets an earlier effective date pursuant to Plan §4.3, p 12). His pension is, of

course, subject to the offsets described in Plan §3.3, p 7. Interest need not be

added to any net amount found owing because the delay was due in part to the

claimant's own request and because a bona fide dispute existed over his

entitlement.

____________________________ E. Frank Cornelius, J.D., Ph.D. Impartial Chairman Dated: February 10, 1984