Steven Prelutsky v. Greater Georgia Life Insurance

Filing

Opinion issued by court as to Appellant Greater Georgia Life Insurance Company. Decision: Reversed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15900
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-00628-WSD

STEVEN D. PRELUTSKY,
Plaintiff-Appellee,
versus
GREATER GEORGIA LIFE INSURANCE COMPANY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 2, 2017)
Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:

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Greater Georgia Life Insurance Company (“GGL”) appeals the district
court’s grant of summary judgment to Steven Prelutsky on Prelutsky’s claim under
the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et
seq., that GGL wrongfully denied him benefits. After careful review, we reverse.
I.
Steven Prelutsky was a partner at the law firm Hall, Booth, Smith, PC and
participated in the firm’s long-term disability benefits plan (“the Plan”). The Plan
is provided through a group insurance policy insured by GGL. GGL serves as both
the Plan’s administrator of claims and the payor of benefits. The Plan vests GGL
with discretionary authority to interpret the Plan’s terms and determine whether a
claim should be paid. The Plan excludes from coverage any disability “caused by,
resulting from, or related to” intoxication (“the Intoxication Exclusion”). The
Plan’s Intoxication Exclusion says:
The Policy does not cover any disabilities or loss caused by, resulting
from, or related to any of the following . . .
Any accident, Injury or Illness caused by, resulting from, or related to
Your being under the voluntary influence of any drug, narcotic,
intoxicant or chemical, unless administered by or taken according to
the advice of a Physician.
In March 2014, while on a ski vacation in Aspen, Colorado, Prelutsky fell
down a flight of twenty stairs in the home where he was staying. There were no

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witnesses to the fall. At some point after the fall, Prelutsky’s son found him. 1
When paramedics arrived, Prelutsky did not have a pulse. They performed CPR
and then took him to the hospital. Prelutsky was admitted to Aspen Valley
Hospital at 9:33 p.m., where he was then intubated and diagnosed with bilateral
subdural hematomas associated with a midline shift and skull fracture.
At 9:51 p.m., a blood-alcohol test was performed. The test showed
Prelutsky’s blood-alcohol level was 281 mg/dL. 2 The following day, Prelutsky
was transferred to St. Mary’s Hospital in Grand Junction, Colorado, where a
craniectomy was performed. In April 2014, Prelutsky was transferred to a longterm rehabilitation facility. Nine months after his injury, Prelutsky’s condition had
improved but he was still unable to return to work due to continuing cognitive
deficits and word-finding problems.
In June 2014, Prelutsky applied to GGL for long-term disability benefits. To
conduct its initial review of Prelutsky’s claim, GGL obtained his medical records
from the rehabilitation facility. A report by attending physician Dr. Brock

1

The record does not show how much time passed between when Prelutsky fell and
when his son found him.
2
A level of 281 mg/dL equals a blood-alcohol concentration (“BAC”) of .281%. For
comparison, a BAC of .08% is the legal driving limit in every state. See Capone v. Aetna Life
Ins. Co., 592 F.3d 1189, 1193 n.3 (11th Cir. 2010).
The toxicology report contained a disclaimer that said: “These unconfirmed ‘screening’
results are to be used for medical purposes only. They are not intended for non-medical
purposes (e.g. employment and/or legal testing).” However, Prelutsky does not challenge the
accuracy or reliability of the hospital’s determination that his BAC was .281% on the night of the
fall, and therefore we do not question it.
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Bowman listed as one of the “admitting diagnoses”: “alcohol abuse (binge
drinking) with a blood alcohol of 0.250 at the time of his fall.” 3 Dr. Bowman also
noted that Prelutsky had a history of “binge drink[ing] approximately 2-3 times per
week” and that his “[l]ast alcohol intake would have been at the time of the
accident.” In addition, a physical therapy discharge note by attending physician
Dr. Payal M. Fadia said: “Alcohol abuse reported with a blood alcohol level of
0.25 at the time of his fall.” In July 2014, GGL denied Prelutsky’s claim, citing
the Intoxication Exclusion and the fact that Prelutsky’s “blood alcohol level was
0.25 when tested at the hospital” after the fall. Prelutsky appealed the denial,
arguing that GGL failed to properly investigate his claim.
Before deciding Prelutsky’s appeal, GGL compiled a more comprehensive
record, including many documents submitted by Prelutsky. In addition to the
records from the rehabilitation facility, GGL obtained: Prelutsky’s medical records
from the two hospitals where he was treated; a report from an independent
physician, Dr. Richard E. Sall; an affidavit from Cynthia Cameron, the owner of
the home where Prelutsky was staying when he fell; and pictures of the stairs as
they looked on the day of the accident.
The medical records from Aspen Valley Hospital contained the bloodalcohol test showing Prelutsky’s blood alcohol was 281 mg/dL on the night of the
3

We’ve been offered no explanation for why some medical records listed Prelutsky’s
BAC as .25% when the toxicology report showed a BAC of .281%.
4

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fall. The Aspen Valley records also included a report from consulting surgeon Dr.
William Rodman, which listed as one of Prelutsky’s diagnoses: “Intoxication
(blood alcohol 253).” The records from St. Mary’s Hospital, prepared the day after
the fall, stated that “[t]he patient[’]s BAL was 250 on admission,” and listed
“alcohol intoxication” among the final diagnoses. The consultation notes from
another physician, Dr. David James, listed “[a]cute alcohol intoxication” as one of
Prelutsky’s diagnoses, and indicated that the hospital should commence its alcohol
withdrawal protocol. A document titled “History and Physical Notes” said:
“Patient . . . is 53 year old attorney skiing in Aspen on family vacation. Had drank
heavily this evening; fall 20 carpeted steps with immediate LOC [loss of
consciousness].”
As part of its review of Prelutsky’s appeal, GGL forwarded his medical
records to an independent physician, Dr. Richard E. Sall, who is board-certified in
forensic medicine. GGL asked Dr. Sall to assess whether Prelutsky’s “blood
alcohol level contribute[d] to his fall or were any other contributing factors
identified.” Dr. Sall determined that:
[I]n my medical opinion, the claimant’s BAC contributed to his
fall. . . . The claimant had a blood alcohol level of .281%. Since at
0.25% BAC, the individual would need assistance in walking and
have impaired coordination, it would contribute to his fall down the
stairs.

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Dr. Sall concluded: “Considering all the facts and circumstances in this case, it is
my medical opinion that the claimant was Intoxicated at the time of admission to
the hospital and the level of intoxication most probably contributed to the cause for
falling down the steps.”
In support of his appeal, Prelutsky produced an affidavit from Cynthia
Cameron, the owner of the home where Prelutsky fell. Cameron saw Prelutsky for
two “brief period[s] of time” on the night of the accident, though it is unclear how
much time passed between when she saw him and when he fell. Cameron said
Prelutsky did not “appear to be overtly intoxicated” and “was not stumbling or
falling down” when she saw him. She also said “[i]t is [her] personal belief that
[Prelutsky] probably slipped on his ski pants” because, when she saw him, he was
still wearing his ski pants, which were “longer than normal, designed to fit over ski
boots.” Cameron was not with Prelutsky when he fell and had no first-hand
observations of the accident.
In January 2015, GGL upheld its denial of Prelutsky’s claim for long-term
disability benefits. Like the initial denial, GGL said Prelutsky’s disability was not
covered by the Plan because his disability fell under the Intoxication Exclusion.
Prelutsky then filed this ERISA action challenging GGL’s denial of his claim.

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The parties filed cross motions for summary judgment. 4 In its summary
judgment decision, the district court first considered whether Prelutsky was “under
the voluntary influence of an intoxicant, in this case alcohol, when he was injured.”
The district court reviewed the evidence of intoxication and found that Prelutsky
“was intoxicated at the time of his fall.” The court then considered whether
Prelutsky’s injury was “caused by, resulted from, or was related to his being
intoxicated.” On de novo review (the first step of the ERISA analysis), the district
court found that the evidence did not support “a causal link” between Prelutsky’s
intoxication and his fall, and thus found GGL’s benefits-denial decision was
“wrong.” The court then proceeded to the next step of the ERISA analysis:
whether GGL’s decision to deny benefits was supported by “reasonable grounds.”
The court found that because GGL’s decision was based on “insufficient
investigation,” its decision to deny benefits was not supported by reasonable
grounds. As a result, the district court granted summary judgment in favor of
Prelutsky. GGL appealed.
II.
4

GGL called its motion a “Motion for Judgment on the Administrative Record.” As we
have recognized, the motion that serves “as [a] vehicle[] for resolving conclusively” an ERISA
benefits-denial action is not a typical motion for summary judgment. See Blankenship v. Metro.
Life Ins. Co., 644 F.3d 1350, 1354 n.4 (11th Cir. 2011) (per curiam). Unlike the usual summaryjudgment standard, the district court in the ERISA context “does not take evidence, but, rather,
evaluates the reasonableness of an administrative determination in light of the record compiled
before the plan fiduciary.” Leahy v. Raytheon Co., 315 F.3d 11, 17–18 (1st Cir. 2002). Thus,
GGL properly named its final dispositive motion a “Motion for Judgment on the Administrative
Record.”
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We review de novo a district court’s ruling on a plan administrator’s
decision to deny benefits, applying the same legal standards that governed the
district court’s decision. Blankenship, 644 F.3d at 1354. “Review of the plan
administrator’s denial of benefits is limited to consideration of the material
available to the administrator at the time it made its decision.” Id. Where a plan
administrator has denied a claim because of a policy exclusion, as GGL did here,
the burden is on the administrator to show that the “exclusion prevents coverage.”
Horton v. Reliance Std. Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir. 1998) (per
curiam). We use a six-step test to review a plan administrator’s denial of benefits:
(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.
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Blankenship, 644 F.3d at 1355.
Here, it is undisputed that GGL was vested with discretion in reviewing
claims under the Plan. Therefore, even assuming that GGL’s decision was “de
novo wrong,” as the district court found, the dispositive question is whether GGL’s
decision was arbitrary and capricious. See Jett v. Blue Cross & Blue Shield of
Ala., 890 F.2d 1137, 1139 (11th Cir. 1989). Thus, we will begin our analysis at
step three and determine whether GGL’s decision to deny Prelutsky’s claim was
arbitrary and capricious. “When conducting a review of an ERISA benefits denial
under an arbitrary and capricious standard . . ., the function of the court is to
determine whether there was a reasonable basis for the decision, based upon the
facts as known to the administrator at the time the decision was made.” 5 Id.
The district court found that Prelutsky was intoxicated at the time of his fall,
and Prelutsky does not challenge that finding on appeal. However, in order for the
Intoxication Exclusion to apply, it is not enough merely to show that Prelutsky was
intoxicated at the time of his injury. Rather, Prelutsky’s injury must have been
“caused by, resulting from, or related to” his intoxication. Because GGL had a

5

We “equate the arbitrary and capricious standard with the abuse of discretion standard.”
Doyle v. Liberty Life Assur. Co. of Bos., 542 F.3d 1352, 1356 n.1 (11th Cir. 2008). Under this
standard, deference is “due both for the administrator’s plan interpretations and for [its] factual
determinations.” Blankenship, 644 F.3d at 1355 n.6.
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reasonable basis to conclude that Prelutsky’s injury was, at a minimum, “related
to” his intoxication, its denial of benefits was not an abuse of discretion.6
GGL reviewed the complete medical-record history of Prelutsky’s brain
injury. The records contained undisputed toxicological evidence that, at the time
Prelutsky fell, his BAC was .281%—which the physicians who treated Prelutsky
diagnosed as “[a]cute alcohol intoxication.” The records describing his fall also
specifically mentioned that Prelutsky “[h]ad drank heavily this evening.” While
the treating physicians never expressly determined that Prelutsky’s intoxication
was the cause of his fall, the fact that they said he “[h]ad drank heavily this
evening” directly before noting that he “f[e]ll 20 carpeted steps” indicates that the
doctors believed Prelutsky’s intoxication was an important aspect of the
circumstances of his fall and provided important context for understanding the
nature of his fall.
GGL then submitted Prelutsky’s medical records for review by Dr. Sall, an
independent forensic physician. Dr. Sall confirmed that Prelutsky’s intoxication
likely played a causal role in his fall. He explained that a person with Prelutsky’s
level of intoxication “needs assistance in walking” and “experiences total mental
confusion,” “slurred speech, incoordination, unsteady gait, . . . and stupor.”
6

“Related” is defined as “[c]onnected in some way; having relationship to or with
something else.” Black’s Law Dictionary 1479 (10th ed. 2014).

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Moreover, Dr. Sall’s ultimate conclusion was that Prelutsky’s “intoxication most
probably contributed to the cause for falling down the steps.” GGL was entitled to
rely on these expert findings to determine that Prelutsky’s injury was “related to”
his intoxication. See Turner v. Delta Family-Care Disability & Survivorship Plan,
291 F.3d 1270, 1274 (11th Cir. 2002) (per curiam) (holding that plan administrator
is “entitled to rely on the opinion of the independent medical examiner”). The
causal link between Prelutsky’s intoxication and his injury is especially strong
because his medical records show that, aside from the extreme intoxication, he was
a perfectly healthy middle-aged man, who was “[i]ndependent in all ways” and had
no condition that would make him prone to fall.
The fact that Prelutsky submitted an affidavit from Cameron, who believed
Prelutsky “probably slipped on his ski pants,” does not render GGL’s conclusion
unreasonable. Cameron did not witness the fall. Neither did she indicate how
much time passed between when she last saw Prelutsky and when he fell. In light
of these limitations, GGL was entitled to discount Cameron’s “personal belief”
about what caused Prelutsky’s fall. We have held that a plan administrator is
permitted to rely on medical evidence over a conflicting witness account, even
when that account comes from a reliable eyewitness to the accident. See Capone,
592 F.3d at 1194, 1200. Certainly, GGL was entitled to rely on expert medical
evidence over an affidavit from someone who had not witnessed the accident. See
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Brown v. Blue Cross & Blue Shield of Ala., Inc., 898 F.2d 1556, 1572 (11th Cir.
1990) (“[A] fiduciary is entitled to choose an apparently more reliable source of
information when sources conflict.”). But even assuming that Prelutsky did trip on
his ski pants, it is not unreasonable to infer that Prelutsky’s highly-intoxicated state
was still “related to” his injury, because the symptoms of extreme intoxication
could have prevented him from catching himself, or covering his head, or
mitigating the impact of his fall in some other way.
The district court said our decision in Capone required a finding that GGL’s
investigation was not sufficient “to reasonably find a causal link between
[Prelutsky’s] alcohol consumption and his fall.” The district court read Capone to
hold that the “causal link” between alcohol intoxication and injury must be
“supplemented by a further investigation by the insurer” if all the insurer has is a
“blood test and a list of physical symptoms expected at a certain blood alcohol
level.” But this was not the holding of Capone.7
The plaintiff in Capone was severely injured when he struck his head on the
bottom of the ocean while diving off a dock in the Bahamas. 592 F.3d at 1192–93.
A test revealed he had a BAC of .244%. Id. at 1192–93. Relying solely on this
BAC and a medical treatise’s generic description that a person with such a BAC
would be “grossly impaired,” id. at 1194, the insurance company decided there was
7

Even accepting the district court’s reading of Capone, it would not govern here. GGL’s
evidence was not limited to a “blood test and a list of physical symptoms.”
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a causal connection between the plaintiff’s intoxication and his “decision to dive.”
Id. at 1200 (emphasis added). The insurance company made this determination
even though it knew the plaintiff was accompanied by other people who (1) also
decided to dive but had not consumed any alcohol, and (2) saw “the series of
events leading up to the [plaintiff’s] dive.” Id. The insurance company made no
attempt to interview these witnesses before it denied the plaintiff’s claim for
benefits. Id. 1199–1200. In other words, the company failed to investigate
witnesses who may well have directly contradicted the company’s theory of the
causal connection between the plaintiff’s intoxication and his injury. Reviewing
those facts, we concluded the company’s investigation was unreasonable. Id. at
1200.
The situation here is very different from Capone. Unlike in Capone, there
were no witnesses to Prelutsky’s fall or to the “series of events leading up to” it.
Id. Thus, there were no other sources of direct evidence GGL could have
investigated that were likely to disprove what the evidence already showed:
Prelutsky’s extremely high level of intoxication was causally connected in some
way to his fall and subsequent injury. As a result, GGL’s determination that
Prelutsky’s claim was barred by the Intoxication Exclusion was supported by
reasonable grounds. See Blankenship, 644 F.3d at 1355.

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Because we find there were reasonable grounds for GGL’s decision, we
must consider whether any conflict of interest renders GGL’s decision arbitrary
and capricious. Id. Here, the only conflict is the “structural” conflict of interest
that is always present when a plan administrator “both makes eligibility decisions
and pays awarded benefits out of its own funds.” Id. “The presence of a structural
conflict of interest—an unremarkable fact in today’s marketplace—constitutes no
license, in itself, for a court” to overturn an otherwise reasonable benefits decision.
Id. at 1356. Prelutsky has not shown that GGL’s conflict was anything other than
standard industry practice. Neither has he shown that GGL’s decision was in any
way “tainted by self-interest.” See id. at 1355 (“Where a conflict exists . . . the
burden remains on the plaintiff to show the decision was arbitrary; it is not the
defendant’s burden to prove its decision was not tainted by self-interest.”
(quotation omitted)). Indeed, it was only after an independent forensic physician
reviewed Prelutsky’s medical records and issued his report finding a causal link
between Prelutsky’s intoxication and his injury that GGL upheld its initial denial.
Therefore, we cannot say that GGL’s conflict of interest made its decision arbitrary
and capricious.
REVERSED.

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