[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11079
Non-Argument Calendar
________________________
D.C. Docket No. 1:17-cv-03680-TCB
SHARON PIERCE,
Plaintiff - Appellant,
versus
WYNDHAM WORLDWIDE OPERATIONS,
INC.,
Defendant,
CIGNA HEALTH AND LIFE INSURANCE
COMPANY,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(October 24, 2019)
Before WILSON, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Sharon Pierce was covered by an Employee Retirement Income Security Act
(ERISA) healthcare plan (the Plan) provided by her former employer, Wyndham
Worldwide Operations, Inc. Cigna Health and Life Insurance Company
administered the Plan. Pierce sought coverage under the Plan for a two-level
spinal fusion surgery to treat her multilevel lumbar degenerative disc disease.
Cigna denied Pierce’s claim, concluding that the surgery was “experimental,
investigational or unproven” and thus not covered by the Plan. Pierce sued, and
the district court granted summary judgment for Cigna.1 Pierce now appeals,
arguing that Cigna’s decision was improper under a deferential arbitrary and
capricious standard. We disagree and affirm.
I. Background
A. The Plan
The Plan covered medically necessary services but excluded coverage for
expenses “for or in connection with experimental, investigational or unproven
services.” The Plan defined those terms to mean procedures “that are determined
1
Pierce also sued her former employer, Wyndham Worldwide Operations, Inc., for both
wrongful denial of benefits under ERISA § 1132(a)(1)(B) and breach of fiduciary duty under 29
U.S.C. § 1132(a)(3). The district court dismissed Wyndham as a party. Pierce did not appeal
that decision and Wyndham is not a party to this appeal.
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by the utilization Physician to be . . . not demonstrated, through existing peer-
reviewed, evidence-based, scientific literature to be safe and effective” for treating
the condition.
B. Pierce’s Claim for Coverage
Dr. Max Stuer, a neurosurgeon, diagnosed Pierce with multilevel lumbar
degenerative disc disease in early 2015. Dr. Stuer told Pierce, and later Cigna, that
Pierce might need a two-level spinal fusion if she did not improve after injections.
Cigna informed Pierce that Dr. Stuer was no longer part of its network, Pierce saw
Dr. Arun Jacob, another neurosurgeon. Dr. Jacob also recommended a two-level
spinal fusion, noting that it would give Pierce “a reasonable chance of recovery
back to her baseline.” Dr. Jacob requested prior authorization from Cigna to
perform the surgery, which Cigna denied.
Two Cigna physicians reviewed the claim. The first, Dr. Greg Przybylski,
concluded that, under the Plan’s exclusion for experimental, investigational or
unproven services, “coverage cannot be approved because there is not enough
scientific evidence that shows the safety and/or effectiveness of lumbar fusion for
the management of multiple-level degenerative disc disease.” Dr. Przybylski
referred to Cigna’s Medical Coverage Policy on lumbar surgery (the Coverage
Policy). The Coverage Policy states that “Cigna does not cover ANY of the
following because each is considered experimental, investigational or unproven:
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lumbar fusion for treatment of multiple-level (i.e., >1 level) degenerative disc
disease . . . .” The Coverage Policy then refers to and explains the medical
literature that supports that conclusion. 2
Dr. Jacob appealed the denial of prior authorization. He compiled an appeal
record, which contained medical records that confirmed Pierce’s multilevel
degenerative disc disease. Dr. David E. Mino, Cigna’s National Medical Director
of Orthopaedic Surgery and Spinal Disorders, reviewed the materials and upheld
the denial of benefits.
C. Procedural History
Pierce sued Cigna for wrongful denial of benefits under ERISA § 1132,
which allows a plan participant to bring a civil action “to recover benefits due to
him under the terms of the plan, to enforce his rights under the terms of the plan, or
2
The main takeaways from the literature review in the Coverage Policy are:
• “The general consensus in the medical literature is that the addition of multiple levels
increases the complexity of the surgery and risks compared to single-level fusion. It has
been reported in the literature that rate of nonunion (pseudoarthrosis) increases with
multilevel fusions. Lumbar fusion of more than two segments (single level), is not
typically recommended, particularly for degenerative disease, and is unlikely to reduce
pain, as it removes normal motion in the lower back and may cause strain on other
remaining joints. Added stress on nearby vertebrae can accelerate the degenerative
process.”
• “Determining if a disc is the primary source of pain is challenging and treatment,
particularly surgical, is considered controversial for this indication [degenerative disc
disease].”
• “Evidence supporting lumbar fusion however, as a method of treatment for DDD
[(degenerative disc disease)] is limited, and few well-designed clinical studies have
supported arthrodesis as superior to nonoperative therapy for improving clinical
outcomes. (Resnick, et. al., 2005).”
4
to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C.
§ 1132(a)(1)(B). Cigna filed a motion for summary judgment, which the district
court granted, concluding that Cigna’s denial of benefits was not arbitrary or
capricious. Pierce appealed.
II. Discussion
We review a district court’s grant of summary judgment de novo, applying
the same legal standards as the district court. Doyle v. Liberty Life Assurance Co.
of Bos., 542 F.3d 1352, 1358 (11th Cir. 2008).
A. Deference to ERISA Plan Administrator’s Coverage Decision
ERISA does not tell courts how to interpret ERISA plans, but federal courts
“have the authority to develop a body of federal common law” to govern their
interpretation and enforcement. Tippitt v. Reliance Standard Life Ins. Co., 457
F.3d 1227, 1234–35 (11th Cir. 2006). Courts review the coverage decision of a
plan administrator de novo “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 Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989).
In Blankenship v. Metro Life Ins. Co., we outlined a six-part test for
determining the appropriate standard of review under Firestone:
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(1) Apply the de novo standard to determine whether the
claim administrator’s benefits-denial decision is “wrong”
(i.e., the court disagrees with the administrator’s decision);
if it is not, then end the inquiry and affirm the decision.
(2) If the administrator’s decision in fact is “de novo
wrong,” then determine whether he was vested with
discretion in reviewing claims; if not, end judicial inquiry
and reverse the decision.
(3) If the administrator’s decision is “de novo wrong” and
he was vested with discretion in reviewing claims, then
determine whether “reasonable” grounds supported it
(hence, review his decision under the more deferential
arbitrary and capricious standard).
(4) If no reasonable grounds exist, then end the inquiry and
reverse the administrator’s decision; if reasonable grounds
do exist, then determine if he operated under a conflict of
interest.
(5) If there is no conflict, then end the inquiry and affirm
the decision.
(6) If there is a conflict, the conflict should merely be a
factor for the court to take into account when determining
whether an administrator’s decision was arbitrary and
capricious.
644 F.3d 1350, 1355 (11th Cir. 2011). Under the first three steps, even when the
administrator’s decision was de novo wrong, we apply a deferential arbitrary and
capricious standard if the plan vests the administrator with discretion to review
claims.3 Id. In reviewing a plan administrator’s medical necessity determination,
3
We need not decide whether Cigna’s decision was de novo wrong. Instead, consistent with our
precedent, we may assume the decision was de novo wrong in order to reach the discretion
question. See, e.g., Doyle v. Liberty Life Assurance Co. of Bos., 542 F.3d 1352, 1357 (11th Cir.
2008) (on review of summary judgment, skipping straight to step two and determining whether
the administrator had discretion to review benefit claims under the plan); see also Wulf v.
Quantum Chem. Corp., 26 F.3d 1368, 1373 (6th Cir. 1994) (“Discretion is the exception, not the
6
we only consider the material available to the administrator at the time it made its
decision. See id. at 1354.
The first question, then, is whether the ERISA Plan vested the plan
administrator with discretion to make coverage decisions. This grant of discretion
must be apparent from the text of the Plan. See Kirwan v. Marriot Corp., 10 F.3d
784, 788 (11th Cir. 1994) (“This circuit has interpreted [Firestone Tire] to mandate
de novo review unless the plan expressly provides the administrator discretionary
authority to make eligibility determinations or to construe the plan’s terms.”). The
parties agree that the Plan expressly grants Cigna the discretion to make medical
necessity determinations.4 The arbitrary and capricious standard is therefore
appropriate. Blankenship, 644 F.3d at 1355.
B. Reasonableness of Cigna’s Coverage Decision
The Plan excluded coverage for expenses “for or in connection with
experimental, investigational or unproven services.” The Plan defined those terms
to mean procedures “that are determined by the utilization Physician to be . . . not
demonstrated, through existing peer-reviewed, evidence-based, scientific literature
to be safe and effective” for treating the condition. Through its Coverage Policy,
rule and . . . the arbitrary and capricious standard does not apply unless there is a clear grant of
discretion to determine benefits or interpret the plan.”).
4
The Plan provided that “[t]he Plan Administrator [Wyndam] delegates to Cigna discretionary
authority to interpret and apply plan terms and to make factual determinations in connection with
its review of claims under the plan.”
7
Cigna interpreted the Plan’s “experimental, investigational or unproven” language
and accompanying definition to exclude coverage for Pierce’s two-level spinal
fusion surgery.
That decision is not arbitrary and capricious if “reasonable” grounds
supported it. Id. at 1355. “Plan administrators need not accord extra respect to the
opinions of a claimant’s treating physicians.” Id. at 1356. And administrators
“may give different weight to [certain doctors’] opinions without acting arbitrarily
and capriciously.” Id. As long as there is a reasonable basis in the record for
Cigna’s decision, it “must be upheld as not being arbitrary and capricious, even if
there is evidence that would support a contrary conclusion.” White v. Coca-Cola
Co., 542 F.3d 848, 856 (11th Cir. 2008).
Pierce argues that the “experimental, investigational or unproven” language
is ambiguous, citing our decision in Dahl-Eimers v. Mutual of Omaha Life Ins.
Co., 986 F.2d 1379 (11th Cir. 1993). In Dahl-Eimers, a non-ERISA case, we held
that the term “considered experimental” was ambiguous because “[t]he insurance
policy does not clearly specify who will determine whether a treatment is
considered experimental or how that determination will be made.” 986 F.2d at
1384. Dahl-Eimers does not help Pierce for two reasons. First, the Plan here
expressly defined the “experimental, investigational or unproven” term and
specified who would make the determination. The Plan, therefore, cures the
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precise defect that created the ambiguity in Dahl-Eimers. Pierce does not argue
how the term, as defined in the Plan, is ambiguous. Second, even if that term was
ambiguous, under the arbitrary and capricious standard, Cigna need only have
reasonably interpreted it. See Tippitt, 457 F.3d at 1232 (“If [the administrator’s
interpretation] is reasonable, then the interpretation is entitled to deference even
though the claimant’s interpretation is also reasonable . . . .” (internal quotation
marks omitted)).
In White v. Coca-Cola Co., we held that an ERISA plan administrator
reasonably interpreted a plan term when the administrator’s interpretation was
“consistent with the summary plan description, the past practices of [the
employer], and the other provisions of the plan.” 542 F.3d at 857. The summary
plan description also “clearly explain[ed]” the administrator’s interpretation. Id.
Cigna reasonably concluded that a two-level spinal fusion surgery falls
under the “experimental, investigational or unproven” exclusion in the Plan.
Under the definition in the Coverage Policy, Cigna had a reasonable basis for
concluding that the procedure was “not demonstrated, through existing peer-
reviewed, evidence-based, scientific literature to be safe and effective” for Pierce’s
degenerative disc disease. Cigna’s Coverage Policy clearly explains the
evidentiary basis for that determination. The Coverage Policy cites and details
multiple peer-reviewed, evidence-based, scientific articles. See supra note 1. This
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Coverage Policy was not created for Pierce. It was instead existing and uniformly
applied. 5
Pierce does not identify a single article to counter Cigna’s position.6 Pierce
instead argues that because her physicians considered the procedure medically
necessary, Cigna’s interpretation was unreasonable. Pierce’s argument is
unconvincing. First, the opinions of Pierce’s physicians only established that she
had degenerative disc disease. Those opinions are not “existing peer-reviewed,
evidence-based, scientific literature.” And they are also not evidence that the two-
level spinal fusion was not “experimental, investigational or unproven.” Although
Cigna reviewed those medical records as part of its determination, Cigna was not
required to use Pierce’s physicians’ opinions to determine whether the surgery was
“experimental, investigational or unproven.” Second, even if Pierce’s physicians
opined that the procedure was not experimental, Cigna “need not accord extra
5
To rebut this contention, Pierce cites Dubaich v. Conn. Gen. Life Ins. Co., No. CV 11-10570
DMG, 2013 WL 3946108 (C.D. Cal. July 31, 2013). In Dubaich, Cigna took the position that
spinal fusion was the “standard surgical treatment” for the participant’s two-level degenerative
disc disease. 2013 WL 3946108 at *3. The participant in Dubaich provided evidence that the
surgery she sought—an artificial disc replacement—was non-experimental. Id. The district
court correctly concluded that Dubaich is not evidence that Cigna inconsistently applied its
Coverage Policy. First, Cigna’s Plan and Coverage Policy cover spinal fusion in some scenarios,
but they do not exist in this case. And it is unclear that the Coverage Policy at issue in Dubaich
and the one at issue here are even the same. Pierce relies on language in Dubaich that discusses
degenerative disc disease and spinal fusion generally. Second, the court in Dubaich reviewed the
participant’s claim de novo because there was no evidence that Cigna had discretionary
authority. Id. at *8–9. Dubaich thus does not show that Cigna inconsistently applied the
Coverage Policy in effect at the time it denied Pierce’s claim.
6
She only asserts, without citation, that “multi-level lumbar spinal fusion procedures were
routinely accepted in the relevant medical community in 2015–2016.”
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respect to the opinions of a claimant’s treating physicians.” Blankenship, 644 F.3d
at 1356. Third, if we accepted Pierce’s argument, we would be reading out the
“experimental, investigational or unproven” exclusion from the Plan entirely.
Cigna would be required to cover every medically necessary procedure, even those
that are expressly excluded under the “experimental, investigational or unproven”
exclusion in the Plan.
Pierce has not identified any record evidence that the two-level spinal fusion
surgery was “demonstrated, through existing peer-reviewed, evidence-based,
scientific literature to be safe and effective” for degenerative disc disease. Cigna
had a reasonable basis for concluding otherwise. See White, 542 F.3d at 857.
C. Conflict of Interest
Because we conclude that Cigna’s decision was supported by a reasonable
basis in the record, the next task is to determine whether Cigna operated under a
conflict of interest. Blankenship, 644 F.3d at 1355. A conflict of interest exists
when the same entity both evaluates claims and pays benefits. See Metro. Life Ins.
Co. v. Glenn, 554 U.S. 105, 112 (2008). Pierce argues that Cigna acted under a
conflict of interest because Cigna, as Wyndham’s claims administrator, “had a
financial interest in pleasing Wyndham.” This financial relationship is too remote
to establish a conflict of interest. See Gilley v. Monsanto Co., Inc., 490 F.3d 848,
857 (11th Cir. 2007) (“Our circuit law is clear that no conflict of interest exists
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where . . . the provider incurs no immediate expense as a result of paying
benefits.”). The benefits here were self-funded by Wyndham and were not paid
from the funds of Cigna. Cigna and Wyndham are separate entities. This case thus
lacks the structural conflict of interest articulated in Glenn.
There is no conflict of interest, which ends our inquiry. See Blankenship,
644 F.3d at 1355 (“If there is no conflict, then end the inquiry and affirm the
decision.”).
III. Conclusion
Cigna had a reasonable basis for denying Pierce’s claim for coverage. We
therefore affirm.
AFFIRMED.
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