UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-60367
MOSTAFA ABOUL-FETOUH,
Plaintiff-Appellant,
VERSUS
EMPLOYEE BENEFITS COMMITTEE, as Administrator and named
Fiduciary of the Group Insurance Plan; THE HARTFORD LIFE
AND ACCIDENT INSURANCE COMPANY, as the Group Insurance Plan;
ENTERGY OPERATIONS, INCORPORATED, a Division of Entergy
Corporation, as Fiduciary of the Group Insurance Plan,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
March 16, 2001
Before REAVLEY, SMITH, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
This is an ERISA benefits case. Plaintiff-plan beneficiary
Mostafa Aboul-Fetouh appeals from the district court's order
granting summary judgment in favor of defendant-employer Entergy
Operations, Inc. (Entergy), defendant-plan administrator Employee
Benefits Committee (EBC), and defendant-claims administrator-
insurer The Hartford Life and Accident Insurance Company
(Hartford). We affirm.
I.
Between April 1989 and April 1997, Aboul-Fetouh, who has a
masters degree in engineering, was employed by Entergy as a
technical or senior engineer. In 1990, Entergy Corporation
established the Entergy Corporation Companies' Benefits Plus Long
Term Disability Plan (the plan). The plan meets the requirements
of an employee welfare benefit plan as that term is defined in
ERISA. See 29 U.S.C. § 1002(1). Entergy funded the plan with a
group insurance policy issued by Hartford.
Any review of an ERISA benefit determination must begin with
the relevant plan language.1 The plan provides that it pays
1
The record contains two versions of the relevant plan.
One appears to be the original 1990 plan, as amended in 1992, while
the other is an amended and restated version of the plan dated
March 1, 1997. Aboul-Fetouh claims that his entitlement to
disability benefits is controlled by the January 1990 plan, while
the defendants maintain that his entitlement to benefits is
controlled by the March 1997 plan. For the most part, the
controlling terms material to our disposition are substantively
identical in both plans. To the extent there is any relevant
conflict in plan terms, we apply the terms set out in the 1990
plan. The March 1997 version of the plan was not promulgated until
after Aboul-Fetouh was no longer entitled to benefits. Moreover,
Hartford's final determination letter denying Aboul-Fetouh's claim
for a continuation of long term disability payments appears to be
based upon terms specific to the 1990 plan. While an
administrator's decision to apply one version of the plan over
another when making a benefit determination is entitled to some
deference, see Matassarin v. Lynch, 174 F.3d 549, 564 (5th Cir.
1999), cert. denied, 120 S. Ct. 934 (2000); Spacek v. Maritime
Ass'n, 134 F.3d 283, 292-93 (5th Cir. 1998), there is no like
principle requiring deference to an administrator's decision to
apply one version of the plan to deny benefits, and a second
version to defend that decision in subsequent litigation. When
these facts are construed in Aboul-Fetouh's favor, we conclude that
the 1990 plan must be viewed as providing the controlling language
2
disability benefits:
[T]o a Member if, while covered hereunder, the
Member (i) becomes Totally Disabled; (ii) remains
Totally Disabled throughout the Elimination Period;
(iii) remains Totally Disabled beyond the
Elimination Period; and (iv) submits proof of loss
satisfactory to the Claims Administrator.
The plan defines total disability as follows:
“Totally Disabled” means that during the
Elimination Period and for the next 24 months, the
Member is prevented by Disability from doing all
the material and substantial duties of this own
occupation. After that, “Totally Disabled” means
that the Member is prevented by such Disability
from doing any occupation or work for which he is
or could become qualified by training, education,
or experience.
The plan defines the elimination period as follows:
“Elimination Period” means the first 6 months of
any one period of Total Disability before benefits
are payable under this Plan. Notwithstanding any
other provision contained herein to the contrary,
if a Member ceases to be Totally Disabled and
returns to work for a total of 14 or fewer days
during an Elimination Period, the Elimination
Period shall not be interrupted or extended.
Except as otherwise set forth herein, the Member
must be Totally Disabled by the same condition for
the entire Elimination Period.
Generally, a participant must be disabled by the same condition for
the entire elimination period. Moreover, even a series of
causally-related disabilities, each lasting less than six months
alone, but adding up to an aggregate of six months when combined,
will generally not suffice to establish total disability throughout
the elimination period. There are, however, at least two
for purposes of this appeal.
3
exceptions. First, the elimination period will not be interrupted
if the participant returns to work during the elimination period
for a period of fourteen or fewer days. Second, when the
participant suffers from a second period of disability which is (1)
caused by the same or a related condition, and (2) begins within
three months after the first period of disability terminates, then
the second period of disability will be tacked on to the first
period of disability and the two periods will be considered a
single period of continuous disability under the plan. The plan
terms describing this feature provide:
“Period of Disability” means a continuous length of
time during which a Member is Disabled under this
Plan.
Successive Periods of Disability. If successive
Periods of Disability are (i) due to the same
cause; or (2) due to a related cause; and (3)
separated by 3 months or less; then such successive
periods shall be considered one Period of
Disability, provided the Plan remains in effect.
When, as here, the participant becomes totally disabled before
age 62, the plan potentially provides long term disability benefits
for a period of continuous disability until age 65. Benefits
terminate earlier, however, upon the occurrence of any of the
following circumstances:
(i) the date the Member is no longer Disabled;
(ii) the date on which the Member fails to furnish
proof that he is continuously Disabled;
(iii) the date on which the Member refuses to be
examined, if the Claims Administrator requires an
examination;
4
(iv) the date on which the Member first receives
retirement benefits from a plan provided or
sponsored by his Employer; [or]
(v) the date on which the Member dies.
Finally, the plan expressly limits the coverage for conditions
“caused, contributed to, or made disabling by” most mental
illnesses to a lifetime maximum of twenty-four months. The
relevant plan term provides:
Additional Plan Limits. Notwithstanding any other
provision contained herein to the contrary, if the
Member is Disabled because of: (i) psychosis or
neurosis; (ii) any condition caused, contributed
to, or made disabling by a psychosis or neurosis;
. . . then, subject to all other provisions of this
Plan, the Plan shall pay benefits only for so long
as the Member is confined in a hospital or other
place licensed to provide medical care for such
Disability for at least 14 days; or when the Member
is not so confined, for a total of 24 months for
all such disabilities during his lifetime.
Having set forth the controlling plan terms, we turn to a
consideration of the facts relating to Aboul-Fetouh's claim for
long term disability benefits.
Aboul-Fetouh was first disabled by a knee injury in August
1993. Aboul-Fetouh filed a claim for long-term disability
benefits, which Hartford approved. In March 1994, Aboul-Fetouh's
treating physician, Dr. Tiwari, reported that Aboul-Fetouh was no
longer totally disabled and that he could return to work at the end
of April 1994. Aboul-Fetouh continued receiving benefits until he
returned to work on May 2, 1994.
Shortly thereafter, in July 1994, Aboul-Fetouh became disabled
5
by a bout of major depression. Aboul-Fetouh filed a second claim
for long term disability benefits on July 15, 1994, which was
accompanied by a statement from his psychiatrist, Dr. Coleman. Dr.
Coleman stated that Aboul-Fetouh was totally disabled by
depression, but that Aboul-Fetouh was expected to make a "full
recovery" and to return to work on at least a part-time basis in
September 1994.
Earlier in July 1994, Aboul-Fetouh was seen by Dr. Tiwari and
by another medical provider, Dr. Nordal, Ph.D. Dr. Tiwari recorded
that Aboul-Fetouh was being seen for a separate problem,
documenting that Aboul-Fetouh was complaining of crying spells,
memory loss, depression, and anxiety. Dr. Tiwari conducted
clinical studies, including an MRI and EMG studies. The results of
these studies were either within normal limits or reported only as
minimally significant medical findings. Dr. Nordal likewise
concluded that Aboul-Fetouh had difficulty controlling his emotions
and making decisions, and that Aboul-Fetouh was suffering from
severe anxiety and depression.
Hartford approved Aboul-Fetouh's second claim, but informed
Aboul-Fetouh that it was establishing a new elimination period
beginning on July 15, 1994, the date of his second disability
benefits claim, and ending six months later, on January 14, 1995.
Hartford also informed Aboul-Fetouh that it intended to rely upon
plan and policy language limiting coverage to a maximum of 24
months when the beneficiary is disabled by some form of mental
6
disability. Hartford subsequently paid long-term disability
benefits to Aboul-Fetouh for the 24-month period beginning January
15, 1995 and ending January 14, 1997, and for a short time period
thereafter, ending in March 1997.
In the two-year period that Aboul-Fetouh was receiving
disability benefits, he was receiving treatment from Dr. Coleman
for depression. During at least some of that period, he was also
receiving medical treatment from Dr. Tiwari for chronic pain in his
neck, chest, and lower back. In January 1996, Aboul-Fetouh also
consulted a rheumatologist, who prescribed injections for pain.
When Aboul-Fetouh's entitlement to long-term disability
benefits on the basis of his mental disability expired in January
1997, Aboul-Fetouh claimed that he was entitled to continued
benefits because he was totally disabled by chronic pain, a
condition that would not be subject to the twenty-four month
limitation applicable to his claim for depression. Hartford
arranged for a functional capacity evaluation to determine whether
Aboul-Fetouh was totally disabled by chronic pain. The functional
capacity evaluation report stated that Aboul-Fetouh could perform
sedentary to light work, as required by his engineering position.
The evaluation specifically reported that Aboul-Fetouh was able to
lift 15 pounds floor-to-thigh and carry 20 pounds.
After receiving the functional capacity evaluation, Hartford
forwarded the report, together with Aboul-Fetouh's file, to a Dr.
Silver for an independent medical evaluation. Dr. Silver was
7
charged with deciding whether Aboul-Fetouh was totally disabled by
a physical condition that would support the payment of benefits
beyond the twenty-four months paid for Aboul-Fetouh's claim based
upon depression and anxiety. Dr. Silver concluded that Aboul-
Fetouh’s depression was severe, but that he was physically capable
of returning to the work required by his employment with Entergy.
Hartford relied upon the functional evaluation and Dr. Silver’s
opinion to deny long-term disability payments beyond the twenty-
four month period permitted for conditions “caused, contributed to,
or made disabling by” a psychosis or neurosis.
In May 1997, after Hartford denied an extension of benefits,
Aboul-Fetouh submitted Dr. Tiwari's statement that Aboul-Fetouh
suffered from chronic pain syndrome or fibromyalgia. Aboul-Fetouh
sought additional medical treatment for chronic pain in 1997 and
1998. While it is clear that Aboul-Fetouh was suffering from some
level of chronic pain, Dr. Tiwari himself assigned only a ten
percent disability rating to the whole body for the condition.
Medical tests conducted in this period reveal “mild” abnormalities,
but are likewise not supportive of Aboul-Fetouh's claim of total
disability.
In October 1997, about nine months after Hartford discontinued
disability payments, Aboul-Fetouh filed this lawsuit in federal
district court under ERISA. See 29 U.S.C. § 1132(a)(1)(B)
(providing that "a participant or beneficiary" may bring a civil
8
action “to recover benefits due him under the terms of the 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”). Aboul-
Fetouh sought to recover past and future long-term disability
benefits, as well as attorney fees and costs.
In March 1998, the case was stayed by agreement of the parties
pending Aboul-Fetouh’s exhaustion of administrative remedies.
While the case was stayed, Aboul-Fetouh and Hartford exchanged
additional information relating to the extent of Aboul-Fetouh’s
disability and medical condition. In October 1998, Hartford
subjected Aboul-Fetouh’s complete file to a second independent
medical evaluation. The subsequent report concluded that Aboul-
Fetouh continued to suffer from severe and disabling depression, as
well as fibromyalgia and other mild problems affecting his neck,
shoulder and back, but that Aboul-Fetouh no longer had any
continuing or totally disabling physical condition. The report
concluded that Aboul-Fetouh was capable of returning to work.
In November 23, 1998, Hartford sent Aboul-Fetouh a final
determination letter denying Aboul-Fetouh’s claim for further
benefits under the plan. Hartford concluded that Aboul-Fetouh's
medical evidence failed to establish that he was totally disabled
by a physical impairment when his entitlement to long-term
disability benefits on the basis of the July 1994 depression and
anxiety claim expired.
In December 1998, the district court removed the stay and set
9
scheduling deadlines. On June 15, 1999, defendant Hartford moved
for summary judgment, arguing that there was no legal error and no
abuse of discretion arising from its interpretation and application
of the plan. Defendants EBC and Entergy filed a separate pleading
joining in Hartford's motion and making an additional argument that
neither EBC nor Entergy were proper parties to the suit.2 After a
hearing on the motions, the district court granted summary judgment
in favor of the defendants.
II.
Summary judgment is appropriate when there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. See FED. R. CIV. P. 56. This Court
reviews the district court's determination that the defendants were
entitled to judgment as a matter of law de novo, applying the same
standards as the district court. See Duffy v. Leading Edge Prods.,
44 F.3d 308, 310 (5th Cir. 1995).
A plan administrator's interpretation or application of the
plan, including a denial of plan benefits challenged under
§ 1132(a)(1)(B), is reviewed de novo "unless the benefit plan gives
the administrator or fiduciary discretionary authority to determine
2
Because we conclude that the administrator's
interpretation of the plan was legally correct and that there was
no abuse of the considerable discretion vested with the
administrator in this case, we need not and do not consider this
alternative basis for affirming the district court's summary
judgment in favor of the defendants.
10
eligibility for benefits or to construe the terms of the plan.”
Firestone Tire & Rubber Co. v. Bruch, 109 S. Ct. 948, 956-57
(1989). Many plans, like the Entergy plan at issue here, vest plan
administrators with broad discretion to interpret and apply to the
plan. In such cases, the "administrator’s interpretation of the
plan and action based thereon" is reversed only for "an abuse of
discretion." Spacek v. Maritime Ass'n, 134 F.3d 283, 292 (5th Cir.
1998) (citing Bruch, 109 S. Ct. at 956). The abuse of discretion
standard applicable here is sometimes referred to or equated with
an "arbitrary and capricious" standard of review. See Matassarin
v. Lynch, 174 F.3d 549, 563 (5th Cir. 1999), cert. denied, 120 S.
Ct. 934 (2000); Penn v. Howe-Baker Eng'rs, 898 F.2d 1096, 1100 &
n.2a (5th Cir. 1990).
"[T]he abuse of discretion standard may involve a two-step
process." Spacek, 134 F.3d at 292. First, the court determines
whether the administrator’s interpretation of the plan is legally
correct. Id. at 292; Threadgill v. Prudential Securities Group,
Inc., 145 F.3d 286, 292 (5th Cir. 1998). For this analysis, plan
language is preeminent. If the court determines that the plan
administrator’s interpretation of the plan is legally correct, then
the administrator's interpretation and the denial of benefits
should be upheld because there cannot have been any abuse of
discretion. See Spacek, 134 F.3d at 292. If, on the other hand,
the court determines that the plan administrator’s interpretation
11
is not legally correct, then the court must proceed to determine
whether the administrator’s decision denying benefits was an abuse
of discretion. See Threadgill, 145 F.3d at 293; Spacek, 134 F.3d
at 292-93. The district court’s determination that the plan
administrator either did or did not abuse its discretion by denying
benefits is reviewed de novo. See Threadgill, 145 F.3d at 292.
III.
Aboul-Fetouh argues that Hartford abused its discretion by
failing to treat the August 1993 period of disability and the July
1994 period of disability as a single period of disability under
the successive disability provision of the plan. In a related
argument, Aboul-Fetouh maintains that Hartford's benefit
determination was an abuse of discretion because he has been
continuously and totally disabled by chronic pain since 1993.
Hartford defends its application of the successive disability
provision. Hartford maintains that its factual determination that
the August 1993 knee injury claim and the July 1994 depression
claim and subsequent period of disability had different and
unrelated causes is supported by substantial evidence in the
record.
We agree. Dr. Tiwari's records reflect that Aboul-Fetouh had
reached a normal state and was ready to return to work in late
April 1994. When Aboul-Fetouh returned to Dr. Tiwari in July 1994,
it was for the “separate” problem arising from crying spells,
12
memory loss, depression, and anxiety. Aboul-Fetouh's subsequent
problems with that condition are well documented by those
physicians providing medical care in July 1994. While Aboul-Fetouh
may have continued to experience symptoms of pain in his neck,
shoulder, and back, there is no evidence that would support a
reasonable inference of total disability caused by such pain in
July 1994. We conclude, therefore, that Hartford did not apply an
incorrect interpretation of the plan and did not abuse its
discretion in refusing to tie Aboul-Fetouh's August 1993 claim for
total disability caused by his knee injury and complications
arising from that injury and his July 1994 claim for depression and
anxiety together as a single continuing period of disability.
Aboul-Fetouh next maintains that Hartford abused its
discretion because the summary judgment evidence is sufficient to
create a fact question concerning whether he has been totally
physically disabled by chronic pain since 1993. Aboul-Fetouh does
not dispute that there are no objective medical records tending to
support his claim, but contends that Hartford cannot rely upon that
evidentiary deficiency because Dr. Tiwari explained that there is
no known etiology for his complaints of chronic pain, and therefore
no way to conclusively establish disabling pain with objective
medical evidence.
We find no abuse of discretion in Hartford's benefit
determination. As an initial matter, the record evidence simply
does not support Aboul-Fetouh's assertion that he was continuously
13
disabled between 1993 and 1997. In April 1994, Dr. Tiwari reported
that Aboul-Fetouh was fit and ready to return to work. Aboul-
Fetouh did in fact return to work until he became disabled by
anxiety and depression in July 1994. Even as late as June 1997,
Dr. Tiwari assigned only a ten percent disability rating on the
basis of Aboul-Fetouh's chronic pain and myofascial syndrome.
Moreover, we note that the key issue in this case is whether Aboul-
Fetouh was totally disabled by chronic pain as of March 1997, when
Hartford terminated benefits. Without regard to whether Aboul-
Fetouh was totally disabled by chronic pain between 1993 and that
time, the plan provides that benefits terminate when the
participant can no longer furnish proof of total disability. There
is no dispute about the fact that Aboul-Fetouh exhausted his
entitlement to benefits on the basis of his July 1994 claim for
depression and anxiety. Once those benefits were exhausted, Aboul-
Fetouh would not have been entitled to additional benefits unless
he could demonstrate total disability as of March 1997.
Hartford's denial of benefits was expressly tied to the
extensive medical evidence in this record. Hartford's deter-
mination was supported by the functional capacity test results, and
the two independent medical evaluations concluding that Aboul-
Fetouh could perform the level of work required for his position at
Entergy. While Aboul-Fetouh offers some evidence that he continued
seeking some treatment for pain, that evidence does not indicate
that Aboul-Fetouh suffered from those symptoms at such a level that
14
he would have been unable to perform his work, the standard
required to support a finding of total disability.
Neither does Dr. Tiwari's statement that chronic pain is hard
to verify with objective medical evidence create a triable issue of
fact. Once Hartford demonstrated the absence of proof to support
Aboul-Fetouh’s claim of total disability, Aboul-Fetouh bore the
burden of coming forward with "concrete evidence" that there was a
genuine issue of material fact for trial. See Duffy, 44 F.3d at
310; see also Douglass v. United Serv. Auto. Ass’n, 79 F.3d 1415,
1429 (5th Cir. 1996) (en banc) ("conclusory allegations,
speculation, and unsubstantiated assertions” are inadequate to
satisfy the non-movant's burden). Even assuming that chronic pain
may not be verified by any form of objective medical testing,
objective medical evidence is not the only means for establishing
an inability to perform relevant work. As just one example, Aboul-
Fetouh could have offered evidence directly contradicting
Hartford's evidence of his residual capacity for work.
Notwithstanding plenty of time for discovery and the
development of adequate medical records, Aboul-Fetouh has not
produced probative evidence that he could not perform the
substantial duties of his job in March 1997. Hartford’s
interpretation of the successive disability provision and other
plan provisions is consistent with a fair reading and should be
considered legally correct as a matter of law. Hartford’s decision
15
that Aboul-Fetouh did not suffer from any totally disabling
physical condition in March 1997 was based upon sound evidence and
was not an abuse of the discretion vested with Hartford by the
relevant plan terms.
For the foregoing reasons, the district court's grant of
summary judgment in favor of defendants Entergy Operations, Inc.,
Employee Benefits Committee, and The Hartford Life and Accident
Insurance Company is AFFIRMED.
16