FILED
NOT FOR PUBLICATION AUG 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARA A. BURKE, No. 09-16608
Plaintiff - Appellant, D.C. No. 3:04-CV-04483-MHP
v.
MEMORANDUM*
PITNEY BOWES INC.
LONG TERM DISABILITY PLAN,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Marilyn Hall Patel, District Judge, Presiding
Argued and Submitted July 15, 2010
San Francisco, California
Before: W. FLETCHER and M. SMITH, Circuit Judges, and TODD, Senior
District Judge.**
In this appeal governed by ERISA, Appellant Cara A. Burke appeals the
district court’s decision in favor of Appellee Pitney Bowes Inc. Long Term
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James Dale Todd, Senior United States District Judge
for the Western District of Tennessee, sitting by designation.
Disability Plan following the termination of her long term disability benefits. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. The parties are
familiar with the facts of the case so we repeat them here only to the extent
necessary to explain our decision.
“We review de novo a district court’s choice and application of the standard
of review” to the plan administrator’s decision. Abatie v. Alta Health & Life Ins.
Co., 458 F.3d 955, 962 (9th Cir. 2006) (en banc). Factual findings are reviewed
for clear error. Id. In this case, the plan granted the administrator discretionary
authority to determine eligibility for benefits and construe the plan’s terms.
Therefore, we review the decision for abuse of discretion. Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Where, as here, the plan
administrator is also the source of funding for the plan, the structural conflict of
interest is a factor to be considered in that review. Metro. Life Ins. Co. v. Glenn,
554 U.S. 105, 128 S. Ct. 2343, 2350-51 (2008); Abatie, 458 F.3d at 968-69. See
also Conkright v. Frommert, — U.S. — , 130 S. Ct. 1640, 1646 (2010) (reiterating
that under Metropolitan Life, if discretionary authority is granted to the plan
administrator, “a deferential standard of review remains appropriate even in the
face of a conflict”).
2
The plan administrator terminated Burke’s benefits based on the report of an
independent medical examination (“IME”) in which Dr. Richard J. Barry opined
that she could return to light duty work. Burke appealed and submitted additional
medical evidence from a treating physician who strongly disagreed with Dr.
Barry’s conclusions. While the appeal was under consideration, the plan
administrator requested that Burke undergo a second IME by Dr. Barry so that he
could respond to the new medical evidence. Burke refused, contending that the
request was unreasonable.
The provisions of the plan specifically conditioned the payment of benefits
on the administrator’s right to require the employee to submit periodically to an
IME. The plan also expressly provided that benefits could be terminated for
refusal to attend a scheduled IME. Nevertheless, Burke persisted in her refusal
even after she was warned that her benefits could be terminated on that basis alone.
Contrary to Burke’s arguments, it was reasonable for the plan administrator
to request a second IME in order to allow Dr. Barry to consider whether his
opinion had changed in light of the contrary evidence from her treating physician.
Assuming, without deciding, that the plan is even required to show it has suffered
prejudice before denying benefits on the basis of a participant’s refusal to comply
3
with a procedural requirement, Burke’s failure to attend the IME prejudiced the
administrator’s ability to determine whether her claim was meritorious.
Even taking into account as a factor the plan administrator’s structural
conflict of interest, the termination of Burke’s benefits for her failure to attend the
IME was not an abuse of discretion.
AFFIRMED.
4