Basil A. Frye v. Thompson Steel Company, Incorporated

Circuit Judge Evans died on August 10, 2011, and did not å
participate in the decision of this case, which is being resolved
by a quorum of the panel under 28 U.S.C. § 46(d).
Employee Retirement Income Security Act of 1974 (“ERISA”), 1
29 U.S.C. § 1001 et seq.
In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1900
BASIL A. FRYE,
Plaintiff-Appellee,
v.
THOMPSON STEEL COMPANY,
INCORPORATED,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
1:09-cv-00977—Jeffrey N. Cole, Magistrate Judge.
ARGUED JANUARY 13, 2011—DECIDED SEPTEMBER 2, 2011
Before RIPPLE, EVANS and SYKES, Circuit Judges.å
RIPPLE, Circuit Judge. Basil Frye brought this ERISA1
action in the United States District Court for the Northern

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2 No. 10-1900
District of Illinois against his former employer, Thompson
Steel Company. Mr. Frye sought review of a denial of
pension benefits by the Thompson Steel Retirement
Committee (“the Committee”), which administers a
company-sponsored retirement plan. The Committee
had determined that the plan required it to offset against
his pension the amount Mr. Frye previously had re-
ceived from Thompson Steel in settlement of two
Illinois workers’ compensation permanent partial dis-
ability claims. On cross-motions for summary judgment
on the administrative record, the district court held that
the Committee had misread the plain language of the
plan and that the offset therefore was arbitrary and
capricious. Accordingly, the district court granted sum-
mary judgment in favor of Mr. Frye and remanded the
matter to the Committee for a new determination. Thomp-
son Steel now appeals.
We conclude that the decision of the Committee was not
arbitrary and capricious. The Committee’s determination
that the offset provision is applicable has rational sup-
port in the plan’s terms. Accordingly, we reverse the
judgment of the district court and remand the case with
directions that the court grant summary judgment
for Thompson Steel.
I
BACKGROUND
A. Facts
In 2007, Mr. Frye, a longtime employee at Thompson
Steel and a member of the United Steelworkers of America,

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No. 10-1900 3
Citations to documents in the administrative record will 2
contain a citation to the district court record followed by a
parallel citation to the administrative record page number
(AR) in parentheses.
Local 7773, retired when Thompson Steel’s Franklin
Park, Illinois steel plant, at which he had worked for forty-
two years, was shut down. At the time of the shutdown,
he had the choice of being laid off or of taking early
retirement. He chose the latter.
Thompson Steel and Mr. Frye’s union had negotiated
the terms of the benefit plan. Under its terms, Mr. Frye’s
pension payment, without any offset, was $688.13 a
month. The Committee notified him, however, that pay-
ment of his pension would be deferred for eight years
and two months. According to the Committee, the terms
of the benefit plan required that, before the pension
payments could start, Mr. Frye had to pay back the
total amount of payments from workers’ compensation
settlements that he had received after sustaining two on-
the-job injuries in 2005 and 2006. The Committee later
recalculated the amount due and increased the offset
period to about ten years and two months. See R.30-3 at 2
(AR0002).2
1.
We now turn to a detailed examination of the pay-
ments that are the basis of the claimed deduction from
Mr. Frye’s retirement pension. During his employment

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4 No. 10-1900
See 27 Donald Ramsell, Illinois Practice, Illinois Workers’ 3
Compensation Law § 18:1 (2009).
at Thompson Steel, Mr. Frye suffered two workplace
injuries, one to his right arm in 2005 and one to his left
leg almost exactly one year later. After his arm injury,
Mr. Frye missed twelve weeks of work and received
$6,893.16—or $574.43 per week—in “temporary total
disability benefits” for lost wages. Id. at 15 (AR0072). After
his leg injury, he missed no work and did not receive
any temporary disability benefits. He continued to
work for another year until the plant closed.
Mr. Frye also received workers’ compensation settle-
ment awards for permanent partial disabilities of
$48,597.06 for his arm injury and $35,291.50 for his leg
injury from Thompson Steel. The total award amount was
$83,888.56. After the subtraction of attorney’s fees, the
cost of obtaining medical reports and the cost of making
copies of exhibits and reports, Mr. Frye actually received
$75,622.09. See id. at 16, 18 (AR0073, AR0075).
The Illinois Workers’ Compensation Commission
(“IWCC”) calculated the amount of Mr. Frye’s settle-
ment awards in the following manner. The Illinois Work-
ers’ Compensation Act, 820 ILCS 305, contains a
schedule that sets a certain number of weeks’ compensa-
tion for the loss of a body part or the loss of use of a body
part, called a “permanent partial disability” (“PPD”). For3
example, at the time Mr. Frye was injured, the loss of an
arm or the full loss of the use of an arm was set at
235 weeks PPD, and the loss of a leg at 215 weeks PPD.

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No. 10-1900 5
For example, in the year preceding the injury to his arm, 4
Mr. Frye’s average weekly wage was $861.65, 60% of which
is $516.99. $516.99 multiplied by 94 (weeks PPD) equals
$48,597.06, the settlement amount for the arm injury. See R.30-3
at 15-16 (AR0072-73).
See 820 ILCS 305/8(e)(10), (12). Because Mr. Frye lost only
part of the use of his limbs, the number of weeks was
multiplied by the percentage of lost use. IWCC deter-
mined that Mr. Frye had lost 40% of the use of his right
arm and 35% of the use of his left leg; after multiplica-
tion, this resulted in 94 weeks for the arm and 75.25
weeks for the leg. R.30-3 at 16, 18 (AR0073, AR0075).
Therefore, IWCC determined the total settlement amount
by multiplying the number of weeks PPD by a statutorily
fixed percentage, 60%, of Mr. Frye’s average weekly
wage for the year preceding the injury. The settlement4
agreements recite that, given Mr. Frye’s life expectancy
of 16.8 years from the date of settlement, the settlement
amount would compensate Mr. Frye for the equivalent
of $86.56 per week for the rest of his life. See id. The
award did not include medical expenses, which also
were paid by Thompson Steel.
2.
We now examine the deduction of these settlement
amounts for permanent partial disability from Mr. Frye’s
pension. To ensure a comprehensive understanding, we
describe the key provisions of the retirement plan that
are pertinent to this matter.

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6 No. 10-1900
The pension offset is based on section 4.8 of the re-
tirement plan. That section provides:
Any amount paid to or on behalf of any Employee
or Pensioner on account of injury or occupational
disease causing disability in the nature of a permanent
disability for which the Company is liable . . .
pursuant to Workers’ Compensation . . . shall be
deducted from or charged against any regular
pension payable under this Plan[.]
R.30-5 at 72-73 (AR00221-22) (emphasis added). The
Committee determined that this provision applies to
Mr. Frye’s permanent partial disability awards and that
Thompson Steel is entitled to recoup the $83,888.56 by
withholding Mr. Frye’s pension payments in the full
amount of $688.13 a month until the awards are paid
back. Under this determination, the Committee will not
begin paying Mr. Frye any portion of his pension for 121.9
months, or approximately ten years and two months,
from the date of his retirement.
Mr. Frye challenged this determination before the
Committee. He contended that a definition of “disability”
contained elsewhere in the plan constrains the Com-
mittee’s discretion to interpret the offset provision as
applicable to his injuries. Specifically, section 3.4 of the
plan defines “disability” and “disabled” as
totally disabled by bodily injury or disease so as to
be prevented thereby from engaging in any occupation
or employment for remuneration or profit[,] . . .
[which disability] shall have continued for a
period of six consecutive months and, in the opin-

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No. 10-1900 7
ion of a qualified physician, . . . will be permanent
and continuous during the remainder of his life.
Id. at 67 (AR00216) (emphasis added). Mr. Frye took the
view that this definition does not include his injuries
because he continued to work for two years after the
first injury until he retired and, presumably, still could
work today.
In its letter denying Mr. Frye’s challenge, the Committee
maintained that it “has consistently interpreted and
applied this definition only to determine eligibility
for a Disability Retirement and not to determine the ap-
plicability of an offset for ‘permanent disability’ under
Section 4.8.” R.30-3 at 22 (AR0079). Instead, “[t]he charac-
terization of monies received on account of ‘permanent
disability’ under Section 4.8 is a function of the payment,
itself, not an unrelated eligibility definition under the
Plan,” and because IWCC characterized Mr. Frye’s settle-
ment as a “permanent partial disability,” the plan “man-
dates the offset” to Mr. Frye’s pension. Id. Mr. Frye filed
an appeal with the Committee, which also was denied.
The Committee’s decision on appeal provided the fol-
lowing elaboration of its earlier reasoning:
The reference to “permanent disability” in Sched-
ule C, Article 4.8 refers to the legal characterization
of the payment received by the employee, not the
plan’s definition of “permanent disability” for
pension eligibility purposes. In Mr. Frye’s case,
the Illinois Workers Compensation Commission
characterized the benefits he received as pay-
ments in respect of his “permanent disability.”

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8 No. 10-1900
Accordingly, those payments were properly de-
ducted from his pension benefit pursuant to
Schedule C, Article 4.8. The Committee’s denial of
Mr. Frye’s claim is consistent with its previous
interpretation and application of Schedule C,
Article 4.8 to awards for permanent partial disabil-
ity under the Illinois Workers’ Compensation Act.
Id. at 28 (AR0085).
B. Proceedings Before the District Court
Mr. Frye then filed this action against Thompson Steel
in the district court under section 502 of ERISA. See 29
U.S.C. § 1132(a)(1)(B). This provision permits a plan
participant to bring a civil action “to recover benefits due
to him under the terms of his plan, to enforce his
rights under the terms of the plan, or to clarify his rights
to future benefits under the terms of the plan.” Id. After
both parties moved for summary judgment on the ad-
ministrative record, the district court granted judgment
in favor of Mr. Frye and remanded to the Committee for
a new determination.
According to the district court, the Committee’s deduc-
tion of benefits was arbitrary and capricious because it
ignored the plain language of section 3.4 of the plan. The
court agreed with Mr. Frye that this section defines
“disability” not as a function of IWCC’s characterization
of the payment, but as being “totally disabled by bodily
injury or disease so as to be prevented thereby from
engaging in any occupation or employment for remunera-

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No. 10-1900 9
tion or profit.” R.30-5 at 67 (AR00216) (emphasis added);
see R.53 at 5-7.
The district court explained that, without this defini-
tion, interpreting the offset provision of section 4.8 to
require deductions from Mr. Frye’s pension because a
“permanent partial disability” is “in the nature of a
permanent disability” would have been reasonable,
which usually is all that is required for a plan admin-
istrator’s interpretation to survive review. See R.53 at 4.
Yet here, the specific definition provided in section 3.4,
and made applicable to the offset provision in section 4.8
by section 1.9, controlled. It would be unreasonable,
held the court, to employ a new definition for a term
already defined in the plan. Instead, what the Committee
should have done—and would have to do on remand—is
to determine whether Mr. Frye received payments on
account of an injury that met the requirements for a
disability as set out in section 3.4 or that was in the nature
of such a disability.
II
DISCUSSION
A.
The parties agree that, because the plan vests in the
Committee the discretion to interpret the plan’s terms
and to determine eligibility for benefits, we, like the
district court, must review the Committee’s determination
deferentially, “asking only whether the . . . decision was
arbitrary or capricious.” Hess v. Reg-Ellen Mach. Tool

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10 No. 10-1900
See, e.g., Majeski v. Metro. Life Ins. Co., 590 F.3d 478, 484 (7th 5
Cir. 2009) (holding that an administrator’s “failure to address
[key] evidence in its determination surely constitutes an
absence of reasoning”); Marrs v. Motorola, Inc., 577 F.3d 783,
786 (7th Cir. 2009) (stating that a court may “reject the ad-
ministrator’s interpretation only if it is unreasonable (arbitrary
and capricious)” (internal quotation marks omitted)); Fischer
v. Liberty Life Assurance Co., 576 F.3d 369, 376 (7th Cir. 2009)
(“We will not uphold a termination of benefits if there is no
support in the record for the ultimate decision.”); id. at 377
(affirming an administrator’s decision because “the evidence
permitted it”); Hess v. Reg-Ellen Mach. Tool Corp. Emp. Stock
Ownership Plan, 502 F.3d 725, 727 (7th Cir. 2007) (insisting that
courts will not overturn an administrator’s decision unless “it
is ‘downright unreasonable’ ” (quoting Cozzie v. Metro. Life Ins.
Co., 140 F.3d 1104, 1110 (7th Cir. 1998))); Dabertin v. HCR Manor
Care, Inc., 373 F.3d 822, 828 (7th Cir. 2004) (“The committee
(continued...)
Corp. Emp. Stock Ownership Plan, 502 F.3d 725, 727 (7th
Cir. 2007).
Under arbitrary-or-capricious review, we look to
“whether the plan administrator communicated ‘specific
reasons’ for its determination to the claimant, whether
the plan administrator afforded the claimant ‘an oppor-
tunity for full and fair review,’ and ‘whether there is
an absence of reasoning to support the plan admin-
istrator’s determination.’ ” Majeski v. Metro. Life Ins. Co.,
590 F.3d 478, 484 (7th Cir. 2009) (quoting Leger v. Tribune
Co. Long Term Disability Benefit Plan, 557 F.3d 823, 832-33
(7th Cir. 2009)). This last requirement—absence of rea-
soning—has been stated in various formulations. The5

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No. 10-1900 11
(...continued) 5
must articulate a rational connection between the facts found,
the issue to be decided, and the choice made.”); Ross v. Indiana
State Teacher’s Ass’n Ins. Trust, 159 F.3d 1001, 1011 (7th Cir. 1998)
(upholding decision because the administrator’s “approach
was reasonable in light of the plan language”).
semantical variations no doubt reflect the different situa-
tions in which fiduciaries must make determinations
affecting eligibility. These situations vary significantly.
For instance, a fiduciary may be required in one case
to assess the quality and quantity of evidence submitted
by a beneficiary to support a claim; in another, the
task may be to determine whether the submitted evi-
dence can be characterized as fulfilling a particular re-
quirement of the plan. Here, the Committee was faced
with a question of plan interpretation.
As a general rule, “federal common law principles of
contract interpretation govern” the interpretation of ERISA
plans. Swaback v. Am. Info. Techs. Corp., 103 F.3d 535, 540
(7th Cir. 1996). In this context, we have said that the
fiduciary, in interpreting the plan, is not free, by virtue of
its discretion, “to disregard unambiguous language in
the plan.” Marrs v. Motorola, Inc., 577 F.3d 783, 786 (7th
Cir. 2009); Swaback, 103 F.3d at 540. On the other hand,
the fiduciary’s “use of interpretive tools to disambiguate
ambiguous language is . . . entitled to deferential con-
sideration by a reviewing court.” Marrs, 577 F.3d at 786
(emphasis omitted). In using such tools, the fiduciary
may not, of course, rewrite or modify the plan. See Ross
v. Indiana State Teacher’s Ass’n Ins. Trust, 159 F.3d 1001,

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12 No. 10-1900
1011 (7th Cir. 1998). “Interpretation and modification
are different; the power to do the first does not imply
the power to do the second.” Cozzie v. Metro. Life Ins. Co.,
140 F.3d 1104, 1108 (7th Cir. 1998). Rather, the fiduciary
must reach an interpretation compatible with the
language and the structure of the plan document. Of
course, “it is not our function to decide whether we
would reach the same conclusion as the administrator.”
Sisto v. Ameritech Sickness & Accident Disability Benefit
Plan, 429 F.3d 698, 701 (7th Cir. 2005) (internal quotation
marks omitted).
B.
We begin our analysis by examining thoroughly the
text of the sections of the plan that are pertinent to the
inquiry.
At the time relevant to this action, Thompson Steel had
several plants throughout the United States. Before 2003,
the company negotiated and entered into separate
benefit plan agreements with the local unions repre-
senting workers at each plant. In 1997, Thompson Steel
entered into a Supplemental Agreement Covering Pensions
(“the Supplemental Agreement”) with Local Union
No. 7773, the union that represented workers at the now-
interred Franklin Park Plant where Mr. Frye worked.
Thompson Steel then merged the Supplemental Agree-
ment into its Retirement Plan for Salaried Employees of
Thompson Steel Company, Inc. (“the Master Plan”), see
R.30-4 at 36 (AR00107), which includes special provi-

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No. 10-1900 13
See R.30-4 at 39 (AR00110) (listing Exhibit B: Boston Plan; 6
Exhibit C: Worcester Plan; Exhibit D: Randolph Plan;
Schedule A: Merger Roseville Plan; Schedule C: Merger Local
Union 7773 Plan; and Schedule D: Merger Local Union 5211-01
Plan).
The Master Plan was amended and restated effective 7
January 1, 2007, but Schedule C was not altered by these
amendments.
sions applicable to particular plants. Schedule C to the6
Master Plan governs workers at the Franklin Park Plant.7
Section 1 of Schedule C covers definitions and provides
that these definitions apply throughout Schedule C. R.30-5
at 63 (AR00212) (“For purposes of this Schedule C, terms
defined in section 1.3 of the Plan shall have the meanings
assigned therein, and the following terms shall have the
meanings specified below.”). One such defined term is
“disability.” According to section 1.9, the terms “ ‘Perma-
nently incapacitated’, ‘permanent incapacity’ and ‘disabil-
ity’ shall have the meanings stated in section 3.4.” Id. at
64 (AR00213) (emphasis added).
Section 3.4, titled “Disability Retirement,” sets out the
terms upon which an employee who has been
permanently incapacitated may retire early. It defines
“permanently incapacitated” as follows:
An Employee shall be deemed to be permanently
incapacitated (as the term “permanently incapaci-
tated” is used herein) and shall be retired only (i)
if he has been totally disabled by bodily injury
or disease so as to be prevented thereby from

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14 No. 10-1900
engaging in any occupation or employment for
remuneration or profit and (ii) if such total disa-
bility shall have continued for a period of six
consecutive months and, in the opinion of a quali-
fied physician, it will be permanent and continu-
ous during the remainder of his life.
Id. at 67 (AR00216). Section 3.4 also provides that, “[a]s
used herein, the terms ‘disability’ and ‘disabled’ shall
have the same meanings as the phrases ‘permanent inca-
pacity’ or ‘permanently incapacitated’, respectively.” Id.
Finally, section 4.8, entitled “Deduction for Disability
Payments,” provides:
Any amount paid to or on behalf of any Employee
or Pensioner on account of injury or occupational
disease causing disability in the nature of a permanent
disability for which the Company is liable . . .
pursuant to Workers’ Compensation . . . shall be
deducted from or charged against any regular
pension payable under this Plan[.]
Id. at 72-73 (AR00221-22) (emphasis added). This section
continues:
provided, however, there shall not be deducted
from any regular pension payable prior to age
sixty-five (65) because of eligibility arising under
section 3.4 any payments which shall be received
by the Pensioner under Workers’ Compensation
or Occupational Disease laws for any disability
in the nature of a permanent disability.
Id. at 73 (AR00222).

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No. 10-1900 15
C.
Keeping firmly in mind the applicable standards gov-
erning the authority of the Committee, we now turn to
an examination of the decision of the Committee with
respect to these provisions and the review of that deci-
sion by the district court.
The Committee determined that Mr. Frye’s permanent
partial disability workers’ compensation payments
were subject to the offset provision of section 4.8 of the
benefit plan. In its view, the payments he received for
his permanent partial disabilities were received on
account of disabilities “in the nature of a permanent
disability.” R.53 at 4. As the district court noted, when
section 4.8 is read alone, there is nothing irrational
about calling a permanent partial disability a “disability
in the nature of a permanent disability” and basing an
offset provision on “the legal characterization,” R.30-3
at 28 (AR0085), made by a state workers’ compensation
commission.
The district court believed, however, that there was
one major infirmity in accepting this construction of the
benefit plan. Employing the definition of disability in
section 3.4, which is made applicable throughout
Schedule C by section 1.9, “disability” as used anywhere
in Schedule C must mean “permanent incapacity,” which
in turn must mean an injury rendering an employee
“totally disabled by bodily injury or disease so as to be
prevented thereby from engaging in any occupation or
employment for remuneration or profit” and which, in
the opinion of a physician, “will be permanent and con-

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16 No. 10-1900
tinuous during the remainder of [the Employee’s] life.”
R.30-5 at 67 (AR00216). Under this reasoning, held the
court, Mr. Frye’s payments for partial disabilities could
not be offset against the retirement plan payments.
Yet, as Thompson Steel observes, importing this defini-
tion from section 3.4 into the offset provision in section 4.8
of Schedule C poses an interpretative ambiguity because
of section 4.8’s double use of “disability.” See id. at 72
(AR00221). If the definition from section 1.9 applies to
both uses of disability in section 3.4, then the relevant
portion of the operative sentence would read something
along the lines of “a total and permanent bodily disability
preventing further employment in the nature of a total
and permanent bodily disability preventing further
employment,” which is circular.
Alternatively, of course, the section 3.4 definition may
not have been intended to apply to the offset provision
at all, but it inadvertently was made applicable to the
offset provision when the drafters overlooked the round-
about effect of section 1.9.
A review of the rest of the plan does not shed any
definitive light on the ambiguity. Neither the language
nor the structure of Schedule C or of the Master Plan as
a whole can solve conclusively the interpretative dif-
ficulties posed by the offset provision. Were we sifting
through the pieces independently, we might have con-
cluded that Mr. Frye’s interpretation should carry the
day. However, reconciling the conflicting provisions of
the plan by dealing with the difficulties posed by its
language is precisely the task entrusted to a plan adminis-

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No. 10-1900 17
trator vested with interpretative discretion by the plan
document.
To be sure, “[d]eferential review is not no review;
deference need not be abject. Sometimes the structure
of the plan or sheer common sense or inconsistent inter-
pretations will provide the court with a handle for pro-
nouncing the administrator’s determination arbitrary
and capricious.” Gallo v. Amoco Corp., 102 F.3d 918, 922
(7th Cir. 1996). Here, however, the plan contains a
real ambiguity that the Committee had to face and re-
solve. The offset provision, when read in relation to the
remainder of the plan, is sufficiently ambiguous that
its meaning cannot be ascertained from its plain
language or from the structure of the document.
Resolving how the terms relate to one another calls for a
detailed interpretative process, and ERISA permits that
process to be entrusted to the Committee. See Comrie
v. IPSCO, Inc., 636 F.3d 839, 843 (7th Cir. 2011).
The Committee’s resolution of this ambiguity was not
arbitrary or capricious. To prevail, Mr. Frye had to demon-
strate that there was no “rational support in the record,”
Sellers v. Zurich Am. Ins. Co., 627 F.3d 627, 632 (7th Cir.
2010) (quotation marks omitted), for the Committee’s
determination that the offset provision applies to his
workers’ compensation partial disability payments. He
did not carry this burden. Although Mr. Frye’s alternate
interpretation was also reasonable, the Committee
adopted a reasonable construction of the phrase “disability
in the nature of a permanent disability,” considered
Mr. Frye’s contention regarding the definition of “disabil-

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18 No. 10-1900
ity” in section 3.4 and communicated a rational explana-
tion for its decision. The phrase “in the nature of”
suggests a broad and somewhat fluid concept of
qualifying disabilities that lends itself quite naturally
to payments for injuries denoted permanent partial
disabilities by the workers’ compensation statute. It also
could be indicative of the drafters’ intent to widen the
scope of the offset provision to include disabilities that
are like permanent disabilities but are not permanent in
the strictest sense. The specific mention of workers’
compensation payments in section 4.8 provides further
rational support for the Committee’s decision to base
the offset on IWCC’s characterization of the injury. More-
over, there is no evidence that the Committee has ap-
plied the plan provisions inconsistently or that it manu-
factured its interpretation for the occasion. Therefore,
the Committee’s decision fell within the bounds of its
discretion.
The district court’s decision granting summary judg-
ment in favor of Mr. Frye must be reversed. Because it is
clear that Mr. Frye cannot prevail as a matter of law,
Thompson Steel is entitled on remand to a grant of sum-
mary judgment in its favor. See Swaback, 103 F.3d at 544
(stating that, “in instances in which the facts and law
establish that the appellant is entitled to judgment as a
matter of law, we are free to direct the district court
to enter judgment in appellant’s favor”).
Conclusion
The judgment of the district court is reversed and the
case is remanded with instructions to grant summary

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No. 10-1900 19
judgment in favor of Thompson Steel. Thompson Steel
may recover its costs in this court.
REVERSED and REMANDED
with INSTRUCTIONS
9-2-11

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