Don Birdsell v. United Parcel Serv. ( 1996 )

___________
No. 95-4002
___________
Don Birdsell, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
United Parcel Service of *
America, Inc.; UPS Health and *
Welfare Plan; Aetna Life and *
Casualty Company, *
*
Appellees. *
___________
Submitted: June 13, 1996
Filed: August 27, 1996
___________
Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.
___________
WOLLMAN, Circuit Judge.
Donald Birdsell appeals the district court's grant of summary
judgment in favor of United Parcel Service of America, Inc., (UPS), UPS
Health and Welfare Plan (the plan), and Aetna Life & Casualty Company
(Aetna), in his action brought pursuant to the Employee Retirement Income
Security Act, 29 U.S.C. §§ 1001 et seq. (ERISA). We affirm.
I.
As an employee of UPS, Birdsell is a participant in the plan, which
is an ERISA-covered employee welfare benefit plan. See 29 U.S.C. §
1002(1). The day-to-day operations of the plan are managed by Aetna as the
claim administrator; however, UPS retains the exclusive right and
discretion to determine whether a participant is eligible for benefits
under the plan.
Birdsell began treatment for periodontal disease in 1986, at which
time he had a number of teeth extracted and was fitted with denture plates
to replace his top teeth. In June of 1991, Birdsell's oral surgeon, Dr.
Bisch, determined that it would be necessary to extract Birdsell's
remaining bottom teeth. Aetna agreed to cover this procedure. The present
controversy arose when Aetna's dental consultants and Birdsell's physicians
could not agree on the appropriate prosthetic device with which to replace
the teeth once they were removed. Birdsell and his physicians favored
dental implants -- in essence, false teeth permanently placed in the jaw
bone -- contending that Birdsell's remaining jaw bone was insufficient to
support conventional dentures. Conversely, Aetna's dental consultants
recommended such dentures.
Following Dr. Bisch's initial letter to Aetna recommending that
Birdsell be approved for dental implants, a barrage of correspondence
ensued. Aetna's letters included several requests for X-rays and for any
additional information necessary to make a proper benefit determination.
Dr. Bisch enclosed the requested X-rays with his letters and, according to
his testimony, provided all of the facts necessary to determine the medical
necessity of the implants.
Birdsell's dentist, Dr. Smith, also wrote to Aetna, offering his view
that providing Birdsell with conventional dentures would be clinically
unacceptable because of "minimal bone remaining" in part of Birdsell's jaw.
Each time Aetna was provided with new information, it re-evaluated
Birdsell's request and then denied coverage.
In making its determination to deny benefits, Aetna obtained the
opinions of three dental consultants -- two dentists and one oral surgeon.
Each of these physicians came to the conclusion that the implants were not
medically necessary and that the use of conventional dentures was
appropriate. Aetna's letters informed
-2-
Birdsell of these conclusions, stating specifically that "it appears the
patient has sufficient bone present to hold conventional dentures
properly[.] Therefore, implants do not appear medically necessary . . ."
Despite these consistent denials, Birdsell decided to proceed with
the implants. In January 1993, Birdsell had his teeth extracted and was
fitted for a temporary denture pending placement of dental implants.
Thereafter, Birdsell, Smith, and an administrative supervisor with UPS
wrote to Aetna requesting review of Birdsell's claim. In his letter,
Birdsell explained that he had tried conventional dentures but that they
caused him constant pain, that he was unable to eat solid foods, and that
he felt restricted to eating his meals in private. Aetna again reviewed
Birdsell's claim and again denied coverage, this time informing Birdsell
of his right to appeal the decision to UPS, the plan administrator.
On December 29, 1993, Birdsell had the implant procedure performed
without obtaining a commitment for coverage from Aetna. Aetna again
reviewed Birdsell's file, and on January 20, 1994, wrote to Birdsell
advising him that it was adhering to its previous determination.
On March 17, 1994, Birdsell's attorney wrote to the plan
administrator for UPS requesting that she be provided with numerous
documents relating to the denial of dental implants. UPS responded,
informing counsel that it had treated the March 17 letter as a request for
appeal and that the appeals committee had conducted a thorough review of
the information available, which included letters from Dr. Bisch, Dr.
Smith, and Birdsell, as well as Aetna's response letters. UPS further
stated that the committee did not find sufficient evidence to override
Aetna's decision. In addition, UPS enclosed some of the requested
documents and stated that others would be provided upon payment of copying
charges and that the remainder of requested documents either were not
-3-
applicable to or had not been issued with respect to the plan. Birdsell
refused to pay the $27.50 necessary to obtain the copies, claiming that
such charges were excessive.1
Birdsell then filed this action, claiming that defendants breached
their fiduciary duties under ERISA by failing to authorize payment for his
dental implants and by failing to provide timely and proper information and
documentation concerning their reasons for denying these benefits. He
requested review of the decision to deny his claim, equitable relief
(including the removal of the fiduciaries), and statutory damages for
failure to provide documents and information under ERISA.
II.
Because the plan gave UPS the exclusive right and discretion to
determine eligibility of benefits, the district court reviewed the decision
to deny benefits for abuse of discretion. Maune v. International
Brotherhood of Electrical Workers, 83 F.3d 959, 962 (8th Cir. 1996). We
2
review the district court's determination de novo. Id. We will uphold
the decision to deny benefits if we find it to be reasonable -- that is,
if it is supported by a
1
In his deposition, Birdsell acknowledged that, as an employee
of UPS earning over $19.00 per hour, he could have afforded the
$27.50 charge had he needed the copies.
2
We reject Birdsell's argument that the record does not
support a finding of discretionary authority to determine benefits.
The Summary Plan Description provides:
United Parcel Service shall have the exclusive right and
discretion to interpret the terms and conditions of the
plan, and to decide all matter arising in its
administration and operation, including questions
pertaining to eligibility for, and the amount of benefits
to be paid by the plan . . . .
Thus, UPS's discretionary authority is apparent.
-4-
reasoned explanation, even if another reasonable, but different,
interpretation may be made. Donaho v. FMC Corp., 74 F.3d 894, 899 (8th
Cir. 1996).
In its description of the plan's coverage of dental expenses, the
Summary Plan Description states:
Your dental plan provides protection against most dental
expenses. But, as you might expect, some services and
treatments are not covered . . . No benefits are payable for
. . . dental implants (unless specifically approved in
advance).
The plan further establishes two criteria that the desired treatment must
satisfy to qualify for benefits: 1) the desired procedure must be
necessary and customarily employed nationwide for the treatment of the
dental condition; and 2) the treatment must be appropriate and meet
professionally recognized standards of quality.
We find the conclusion that the dental implants were not medically
necessary to be reasonable. Aetna sought and obtained the opinions of two
dentists and one oral surgeon, all of whom agreed that the requested
implants were not medically necessary. Birdsell's physicians' opinion to
the contrary does not render the decision unreasonable. See Bolling v. Eli
Lilly & Co., 990 F.2d 1028, 1029-30 (8th Cir. 1993) (decision not
unreasonable simply because it adopts one of two competing medical
opinions).
Birdsell argues that defendants failed to conduct a full and fair
review of his claim. This contention appears to be based on three
perceived deficiencies in the review of his claim: 1) defendants' failure
to conduct an independent clinical analysis of Birdsell; 2) defendants'
alleged failure to obtain Birdsell's full medical records; and 3)
defendants' alleged failure to adequately explain to Birdsell the reasons
for the denial of benefits. We
-5-
find each of these allegations to be without merit.
This is not a case where a clinical evaluation of the patient was
necessary to make the proper benefits determination. Birdsell's oral
surgeon acknowledged that he provided Aetna with all of the requisite
information to determine whether the implants were medically necessary.
After viewing the X-rays and related information, Aetna's consultants
simply reached a conclusion different from that reached by Birdsell's
physicians regarding whether Birdsell's bone was sufficient to support
dentures. Birdsell has given us no reason to believe that the consultants
would have agreed with his physicians had they examined Birdsell in person.
On several occasions Aetna requested that Birdsell submit any further
relevant information. Birdsell, however, failed to bring to Aetna's
attention the information that he now claims was crucial to Aetna's
decision. Birdsell's failure to offer additional information, coupled with
Dr. Bisch's statement that he had provided Aetna with all of the necessary
information, precludes Birdsell from now claiming that Aetna's decision was
based on insufficient information. See Davidson v. Prudential Ins. Co. of
Am., 953 F.2d 1093, 1095 (8th Cir. 1992).
We further conclude that Birdsell received a sufficient explanation
regarding the denial of benefits. Aetna explained to Birdsell that
coverage was being denied because three dental consultants had concluded
that the implants were not medically necessary and that conventional
dentures were a workable alternative. This evaluation by Aetna and the
subsequent review by UPS is more than sufficient to satisfy us that
Birdsell obtained a full and fair review of his claims. See Wald v.
Southwestern Bell Corp., 83 F.3d 1002, 1007 (8th Cir. 1996).
-6-
III.
Birdsell makes various allegations regarding defendants' alleged
failure to comply with his request for documents. ERISA section 1132(c)
provides that an ERISA administrator who fails to provide requested
information within thirty days may be personally liable for up to $100 per
day. After a review of the record and of the district court's meticulous
description of all of the documents requested and provided, we find no
merit in this claim.
IV.
We also decline Birdsell's invitation to remove the trustees as ERISA
fiduciaries. The removal of ERISA fiduciaries is warranted only when the
fiduciaries have "engaged in repeated or substantial violations of their
responsibility." Holcomb v. United Automotive Assoc. of St. Louis, 658 F.
Supp. 84, 86-87 (E.D. Mo. 1987), aff'd, 852 F.2d 330 (8th Cir. 1988);
Katsaros v. Cody, 744 F.2d 270, 281 (2d Cir.), cert. denied, 469 U.S. 1072
(1984). We have found no violations of fiduciary responsibility, much less
repeated or substantial ones.
The judgment is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-7-