MEMORANDUM OPINION
Currеntly before the court is a claim for disability pension benefits under a plan governed by the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001, et seq. (ERISA). Both parties have moved for summary judgment.
On March 23, 1984, plaintiff Andrew Barish suffered a heart attack while employed as a bulldozer operator at the Bolgna Coal Company. As a member of the United Mine Workers of America (UMWA), he sought benefits from the UMWA 1974 Pension Trust under the eligibility requirements set forth in the 1974 Pension Plan (the Plan). 1 The Plan provides that a “[p]articipant who ... becomes totally disabled as the result of a mine accident ... shаll ... be eligible for a disability pension while so disabled.” (Defendant’s Exhibit B at 5). Mr. Barish’s claim was denied, however, on the grounds that his disability is not the “result of a mine accident.” 2 After an internal review process, plaintiff filed this action seeking to recover the benefits in question. 29 U.S.C. § 1132(a)(1)(B).
*167 The instant dispute is a factual dispute. Plaintiff contends that he was removing a heavy branch from the hydraulic system in his bulldozer when he suffered the heart attack. Defendant argues that Barish was merely operating the bulldozer. Apparently this is significant because if the heart attack resulted from the strenuous activity of removing the branch, Mr. Barish might qualify as having been injured as a result of a “mine accident.” To so qualify, his injury must have been “unexpected,” “definite,” and the result of “force or impact.” (Defendant’s Memorandum at 5, and Exhibit C). All agree that plaintiffs injury met the first two tests, defendant argues that because Mr. Barish was merely operating the bulldozer, it fails to meet the third.
There is absolutely no disagreement about the interpretation of the relevant provision; the Fund does not argue that even if plaintiff suffered the heart attack as a result of removing the branch he still lacks the requisite “force or impact” element in his claim. In fact, an example promulgated by the trustees to aid in the plan’s construction explicitly shows that the plan covers “a miner who suffers a heart attack while pushing a heavy object in the normal course of his job.” (Plaintiffs Brief in Support of Summary Judgment Exhibit 8). Nеither does the plaintiff argue that merely operating a bulldozer is sufficient to qualify as a mine accident. Instead, each party makes a purely fact-based argument.
Defendant argues that the evidence establishes that plaintiff did not remove any branches or engage in аny strenuous work. Moreover, the Fund continues, the evidence proves conclusively that Barish was merely operating a bulldozer when he was stricken. Defendant points out that when plaintiff sought medical treatment in 1984 he made no mention of removing the branch— he stated only that he operated the bulldozer. In fact, according to the defendant, the only evidence of strenuous activity is plaintiff’s own 1986 testimony which is contradictory to the 1984 statements he made in the course of medical treatment. Naturally, plaintiff counters that the 1986 statements are correct and were given the first time they were requested.
Applicability of Firestone to Factual Determinations
Firestone Tire & Rubber, Co. v. Bruch,
New courts have confronted the issue and those that have are not in agreement. Compare
Petrilli v. Drechsel,
The courts finding that
Firestone
applies to both types оf decisions rely on the language of the Supreme Court’s holding which, they explain, specifically recognizes and addresses the two discrete types of determinations: questions of fact are those where the administrator “determine[s] eligibility” under pre-determined standards, while questions of interpretation are those where the administrator would “construe the terms” of a plan.
Petrilli,
These cases are unpersuasive. We find that Firestone does not apply to issues of fact and that absent any conflict оf interest, bad faith or similar concerns, plan administrators’ resolutions of factual disputes are to be reviewed only to insure that they are supported by substantial evidence. 3
The special treatment accorded original factual determinations dates from the Constitution, U.S. Cоnst. Am. VII, and is found throughout our legal system, especially in the areas of appellate review, see Fed.R. Civ.P. 52, and administrative law, see K. Davis, Administrative Law Treatise 1982 Supp. at 518-30; see, e.g.,
Marsh v. Oregon Natural Resources Council,
The reasons for the disparate treatment vary with the context, but the common and most glaring reason is the exorbitant cost to the government and all parties of repetitive trials on factual matters. Thе argument that allowing de novo review is in the employees’ interest, therefore, is far from self-evident; extra litigation costs will ultimately be borne by the employees themselves. It is true that the Supreme Court rejected a similar argument in
Firestone
regarding the costs of litigating
interpretive
questions de novo,
Firestone,
Neither does the language of the Supreme Court’s opinion suggest the same treatment for these different types of determinations. As noted earlier, courts emphasize the dichotomy in the holding itself: “a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to
determine eligibility
for benefits or to
construe the terms
of the plan.”
Firestone,
It is a truism that language in the Supreme Court’s opinions should not readily be assumed to be superfluous, and perhaps the explicit reference to “eligibility” in the holding is more telling than the lack of any such reference in other passages.
Petrilli,
Review of the Denial of Benefits Undеr the Arbitrary and Capricious Standard
Before
Firestone,
administrators’ decisions were reviewed under the arbitrary and capricious standard,
Wolf v. National Shopmen Pension Fund,
Theoretically, there are three levels of review, (1) arbitrary and capricious, (2) substantial evidence, and (3) clearly erroneous. See K. Davis, Administrative Law Treatise 1982 Supplement 518-19. The borders of these standards are not well defined, however, id.; cf.
Citizens to Preserve Overton Park, Inc. v. Volpe,
Here, the trustees found that Barish was not engaged in any strenuous activity such as removing a branch from the bulldozer’s hydraulic system. This conclusion is amply supported by the evidence. First, the medical report Barish gave to his treating physician on the day of the attack states that he “began working ... running a bulldozer at 7 o’clock. At 8 o’clock he developed substernal chest pressure and aching pain which was rather severe. He stopped working and sat down with his head down to relax, the pain resolved slowly over 10 minutes. He went back to work and 30 minutes later he had a recurrence of the same pain.” (Defendant’s exhibit A at 183). This fairly detailed account of the moments аround the attack makes no mention of the branch, while later Barish himself described the task as “real rough” job that took “about eight to ten minutes.” (Defendant’s Exhibit A at 19). Moreover, Barish’s employer’s report also lacked any reference to a branch. “Indeed, evidence that Barish had performed any activity in addition to operating the bulldozer did not surface until June 10, 1986' — more than two years after the date of his heart attack— when Barish testified before the Bureau of Compensation.... ” (Defendant’s Brief at 12). Barish, on the other hand, presents only his own testimony and the letter of a doctor who, because he examined Barish in 1986, could only have re-reported what Barish told him. Thus, the trustees, and the Bureau of Compensation which heard the appeal, have more than a substantial evi-dentiary basis for their denial of benefits.
On this motion for summary judgement, I must dеtermine whether there is a genuine dispute over a material fact which a trial is needed to resolve. The defendants have proffered substantial evidence to support their determination. It is now incumbent upon Mr. Barish to come forward with evidence discrediting or discounting the defendants’, or which might in some other way allow a fact-finder to conclude that notwithstanding defendants’ substantial evidence, the finding was irrational in the face of the plaintiff’s evidence. Only then would there be “a genuine factual issue as to whether [he] was so clearly entitled to the benеfits [he] sought that the denial was clear error or not rational.”
Shiffler,
ORDER
AND NOW, this 20th day of December, 1990, for the reasons set forth in the accompanying memorandum opinion,
IT IS HEREBY ORDERED THAT:
(1) Plaintiff ANDREW BARISH, SR.’s motion for summary judgment is DENIED.
(2) Defendant UNITED MINE WORKERS OF AMERICA HEALTH AND RETIREMENT FUND’S motion for summary judgment is GRANTED. Judgment is entered in favor of defendant UNITED MINE WORKERS OF AMERICA HEALTH AND RETIREMENT FUND and against plaintiff ANDREW BARISH.
(3) Defendant UNITED MINE WORKERS OF AMERICA HEALTH AND RETIREMENT FUND’S motion to strike plaintiff’s demand for a jury trial is DENIED as MOOT.
Notes
. The 1974 fund is one of five separate employee benefit funds, collectively referred to as The Unitеd Mine Workers of America Health and Retirement Funds, set up by the National Bituminous Coal Wage Agreement of 1974 in accordance with section 302(c) of the Labor Management Relations Act, 29 U.S.C. § 186(c). We will refer to the defendant in this case as the "Fund."
. Both sides agree that Mr. Barish is disabled and that he is a participant in the plan.
. There is no allegation of bad faith or conflict of interest in this case.
. See, e.g.,
Huber v. Casablanca Industries, Inc.,
