Turner v. American Airlines Inc.
ORDER granting 9 Defendant's Motion for Summary Judgment. Signed by Judge Daniel T. K. Hurley on 4/21/2011. (lr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-80623-CIV-HURLEY/HOPKINS
GLEN A. TURNER,
AMERICAN AIRLINES, INC.,
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE comes before the court upon the defendant’s motion for summary
judgment [DE # 9]. For the reasons given below, the court will grant defendant’s motion.
This is an Employee Retirement Income Security Act of 1974 (“ERISA”) case. Plaintiff
Glen A. Turner (“Mr. Turner”) alleges that American Airlines, Inc. (“American”) denied him
long-term disability benefits to which he was entitled under the American Airlines, Inc. Pilot
Long Term Disability Plan (the “Plan”). As required on a motion for summary judgment, the
facts described below have been viewed in the light most favorable to plaintiff as the nonmoving party. See Waters v. Miller, 564 F.3d 1355, 1356 (11th Cir. 2009).
Mr. Turner has worked for American since 1992 as a pilot. In 2005, Mr. Turner was
diagnosed with obstructive sleep apnea and began using a Continuous Positive Airway Pressure
(CPAP) machine.1 He took a leave of absence from work and obtained long-term disability
“CPAP is a treatment that delivers slightly pressurized air during the breathing cycle. This
makes breathing easier for persons with obstructive sleep apnea and other respiratory problems.”
U.S. Nat'l Library of Medicine & NIH, Medline Plus-Encyclopedia, “Nasal CPAP,” http://
www.nlm.nih.gov/medlineplus/ency/article/001916.htm (last visited April 4, 20011).
benefits under the Plan until he was cleared to return to work in October 2006. The following
year, Mr. Turner again began experiencing problems with sleep apnea. In September 2007, Mr.
Turner’s physician, Dr. Alejandro Chediak, determined that Mr. Turner’s sleep apnea treatment
had become ineffective, and Mr. Turner again applied for long-term disability benefits.
In support of his application for disability benefits, Mr. Turner submitted Dr. Chediak’s
notes from two office visits. According to Dr. Chediak’s notes from August 27, 2007, Mr.
Turner had “not been fully adherent to CPAP therapy due to” complaints about “nasal dryness
and repeated episodes of ‘colds’ mainly associated with the use of” his CPAP machine. The
notes reveal that, between February 25, 2007 and August 25, 2007, Mr. Turner complied with
the recommended CPAP treatment on 30 days, did not fully comply with the treatment on 36
days, and did not use CPAP therapy at all on 116 days. Dr. Chediak recommended that Mr.
Turner “change mask to a Respironics ComfortGel,” change the solution to “[h]umidified
normal saline,” get a “CT of sinuses” and a rhinomanometry, and lose weight.
Dr Chediak’s notes from October 8, 2007 observed that Mr. Turner’s mask “was
supposed to have been changed after the last visit, but that “[r]egrettably, he ha[d] not received
the new interface.” The notes indicated that Mr. Turner’s complaint of “nasal dryness and
repeated episodes of ‘colds’ [had] improved and decreased in frequency” due to the use of
“saline as the vehicle for humidification,” but noted that Mr. Turner had “not been fully
complaint with CPAP therapy and continues to inadvertently remove the mask during sleep.”
The notes commented that Mr. Turner had not lost weight, had not completed a CT scan, and had
not scheduled a rhinomanometry.
Dr. Fanancy Anzalone, a doctor from American’s Medical and Occupational Health
Services Department, conducted an initial review of Mr. Turner’s application for disability
benefits and recommended that Mr. Turner’s application be denied. In a letter to Mr. Turner
dated January 21, 2008, Dr. Anzalone explained that Mr. Turner’s “application for disability
benefits under the Plan is incomplete due to insufficient evidence that [he] followed
recommended treatment for a medical condition.” Dr. Anzalone advised Mr. Turner that he may
“submit additional information within thirty days,” and that the claim would be sent to the
“Corporate Medical Director” for review.
In March 2008, Mr. Turner submitted notes from his January 28, 2008 visit to Dr.
Chediak. The notes reported that Mr. Turner had “been unable to tolerate using CPAP nightly.
On a typical night, about 2-3 hours after sleep onset, he inadvertently remove[d] the CPAP mask
[for reasons that were] not fully clear. He state[d] that the main cause revolves around skin
irritation from the mask.”
According to the notes, Mr. Turner tried using a “Respironics
ComfortGel,” but he could not “tolerate the larger size of the mask, [and] therefore . . . resumed
treatment with the” old mask. Nonetheless, Mr. Turner’s “nasal complaints, including frequent
colds,” [had] improved following the utilization of saline humidification with CPAP.” Between
October 28, 2007 and January 27, 2008, Mr. Turner had 26 compliance days, 18 noncompliance
days, and 47 day on which he did not use the CPAP machine. According to Dr. Chediak’s notes,
Mr. Turner’s failure “to adequately use CPAP [was] not volitional but rather result[ed] from side
effects of CPAP treatment.”
On March 10, 2008, Dr. Thomas Bettes, American’s Corporate Medical Director, wrote
Mr. Turner a letter explaining that his “claim for benefits under the Plan [was] denied due to
there being insufficient evidence of a diagnosis that indicates that [he had] an ongoing Disability
as required by the Plan.” Dr. Bettes explained his decision as follows:
In summary, your records indicate that you were initially diagnosed with sleep
apnea on Sept 28, 2005 and reported to your physician nasal symptoms related to
the use of CPAP in August, 2007. Usage of your CPAP is documented from Feb
25, 2007 to August 25, 2007 and which reveals 30 Compliance Days, 36 noncompliance days, and 116 days not used. Office notes from Miami Beach
Pulmonologists, PA on Oct 8, 2007 reveal that the CPAP mask utilized had not
been changed since the previous visit in Aug, 2007. On January 28, 2008 your
physician noted that initially after your diagnosis of sleep apnea was made your
‘CPAP was used with subjective beneficial effects and ease of use,’ and that
‘nasal complaints, including the frequent colds, have improved following the
utilization of saline humidification with CPAP.’ At this visit it was noted that
your Compliance Days = 26, Non-compliance days =18 and Days not used = 47
from a period of time from Oct 29, 2007 until January 27, 2008. Behavioral
changes icnluding weight loss, nasal CPAP, auto-titrating CPAP, BiPAP, dental
appliances, and/or outpatient surgical procedures are all recognized options in the
effective treatment of obstructive sleep apnea.
The letter informed Mr. Turner that he had a right to appeal the denial.
Mr. Turner submitted an appeal of the denial to American’s Pension Benefits
Administration Committee (the “PBAC”) on August 24, 2008, along with the notes from his
May 23, 2008 visit with Dr. Chediak. The notes indicate that Mr. Turner continued to have
“difficulty tolerating positive pressure therapy. The pattern described as similar to that reported
in the last office encounter and involves inadvertent removal of CPAP during sleep.” The notes
recommended that Mr. Turner switch to a bi-level positive airway pressure device “as a salvage
strategy for positive airway pressure treatment of sleep apnea.”
The Plan provides that, before the PBAC may issue its decision on an appeal, any
“dispute as to the clinical validity of a Pilot Employee’s claim of the existence of a Disability or
the continuation of the illness or injury which gave rise to such Disability shall be referred to a
clinical authority selected under the Agreements.” In August 2008, American and the Allied
Pilot Association (the “APA”), the exclusive bargaining agent for American pilots, terminated
their contract with the then-existing independent clinical authority.
Under their collective
bargaining agreement, American and the APA were required to mutually agree on a new
independent clinical authority for pilot appeals. In November 2008, the University of Texas
Medical Branch at Galveston (the “UTMB”) was chosen as an interim independent clinical
authority. Shortly after, the PBAC asked a doctor at the UTMB to review Mr. Tuner’s case.
Due to the effects of Hurricane Ike, however, the UTMB was unable to conduct the medical
review and returned Mr. Turner’s file to the PBAC on January 9, 2009. In June 2009, after
several months of identifying and interviewing potential clinics, American and the APA selected
the Mayo Clinic – Rochester (“Mayo”) as the interim independent clinical authority. The PBAC
requested that Dr. Clayton Cowl perform an evidence-based, forensic review of Mr. Turner’s
Before Dr. Cowl issued his report on the clinical validity of Mr. Turner’s claim, Mr.
Turner submitted notes from two recent visits with Dr. Chediak. The March 16, 2009 notes
observed that Mr. Turner “claim[d] more comfort and better utilization” with the BPAP
treatment and that his “diurnal symptoms of alertness ha[d] benefitted considerably.” The notes
indicated, however, that that “objective numbers suggest that [Mr. Turner] is still not properly
using the device,” but that Mr. Turner “wonders if the device utilization counter is properly
functioning.” The April 22, 2009 notes observed that “diurnal symptoms of alertness ha[d]
benefitted considerably from the switch to BPAP.”
Nonetheless, “the objective numbers
differ[ed] substantially from that which was recorded . . . manually” by Mr. Turner. The notes
said that it “is possible that the device [was] not properly or fully tracking utilization.”
On June 23, 2009, Dr. Chediak issued a report summarizing the previous year of
treatment for Mr. Turner. The report explained that, once Mr. Turner changed his treatment
from CPAP to BPAP, he began experiencing “normal capacity to maintain wakefulness.” The
report concluded that:
The preponderance of the evidence, both subjective and objective, indicates
normalization of prior excessive daytime sleepiness and inability to maintain
wakefulness using BPAP therapy of sleep apnea. [Mr. Turner] should no longer
be considered encumbered as a result of sleep apnea. Therefore, it is my
considered professional recommendation that Mr. Turner be allowed to return to
active flight status.
On July 24, 2009, Mr. Turner returned to work as a pilot for American.
In September 2009, Dr. Cowl completed his review of Mr. Turner’s claim. In his report,
Dr. Cowl opined that Mr. Turner suffered from “continued presence of sleep apnea for the dates
of 8/20/2007 and beyond,” but that the “recurrence of non-restorative sleep and increasing
daytime somnolence [was] due to partial compliance with treatment.” Because “the disability
plan language suggests that noncompliance would cause the ‘Pilot Employee’s Disability to
cease  to exists[,]’ . . . the evidence submitted [did] not support continuation of disability as
defined by Plan language for the dates in question.”
On October 5, 2009, after reviewing Mr. Turner’s file, the PBAC denied Mr. Turner’s
appeal, finding that he was not disabled as a result of his condition of obstructive sleep apnea.
This court possesses federal subject-matter jurisdiction under 28 U.S.C. § 1331 because
plaintiff’s complaint raises a claim arising under the Employee Retirement Income Security Act,
29 U.S.C. § 1001 et seq.
Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(2) because a substantial
part of the events giving rise to the claims occurred in the Southern District of Florida.
Standard on Motion for Summary Judgment
In an ERISA benefits denial case “in a very real sense, the district court sits more as an
appellate tribunal than as a trial court.” See Curran v. Kemper Nat. Servs., Inc., 2005 WL
894840, at * 7 (11th Cir. 2005). The court “does not take evidence, but, rather, evaluates the
reasonableness of an administrative determination in light of the record compiled before the plan
fiduciary.” Id. Therefore, where, as here, “the decision to grant or deny benefits is reviewed for
abuse of discretion, a motion for summary judgment is merely the conduit to bring the legal
question before the district court and the usual tests of summary judgment, such as whether a
genuine dispute of material fact exists, do not apply.” See Crume v. Metropolitan Life Ins. Co.,
417 F.Supp.2d 1258, 1272 (M.D. Fla. 2006) (citing Bendixen v. Standard Ins. Co., 185 F.3d
939, 942 (9th Cir. 1999). That is, “conflicting evidence on the question of disability cannot
alone create an issue of fact precluding summary judgment, since an administrator's decision that
rejects certain evidence and credits conflicting proof may nevertheless be reasonable.” Id.
Standard of Review in ERISA Cases
Although ERISA provides no standard for reviewing decisions of plan administrators or
fiduciaries, the Supreme Court in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109
(1989), “established three distinct standards for reviewing an ERISA plan administrator's
decision: (1) de novo where the plan does not grant the administrator discretion; (2) arbitrary and
capricious where the plan grants the administrator discretion; and (3) heightened arbitrary and
capricious where the plan grants the administrator discretion and the administrator has a conflict
of interest.” Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1195 (11th Cir. 2010). The Eleventh
Circuit has expanded the Firestone test into a six-step analysis “for use in judicially reviewing
virtually all ERISA-plan benefit denials” cases:
(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
(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 of interest, then apply heightened arbitrary and capricious
review to the decision to affirm or deny it.
Williams v. BellSouth Telecommunications, Inc., 373 F.3d 1132, 1137 (11th Cir. 2004)
(emphasis in original).
The Eleventh Circuit recently amended the sixth step of the Williams analysis in light of
Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), which called into question the burdenshifting, heightened arbitrary and capricious standard. See Capone, 592 F.3d at 1195. Under the
amended approach, “the existence of a conflict of interest should merely be a factor for the
district court to take into account when determining whether an administrator's decision was
arbitrary and capricious.” Id. at 1360. Additionally, “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.” Id.
Step One: Was the Administrator’s Decision Wrong?
Because, as discussed below, the arbitrary and capricious standard applies in this case,
the court will analyze whether the denial of disability benefits was reasonable. That is, “the
Court will proceed as if Defendant's decision, were it reviewable under the de novo standard,
was in fact wrong.” Pinto v. Aetna Life Ins. Co., 2011 WL 536443, at * 9 (M.D. Fla. Feb. 15,
2011) (skipping the first step of the Williams analysis where the arbitrary and capricious
Step Two: Did the Administrator have Discretion?
The parties do not dispute that the Plan vests the Plan administrator with discretion to
Specifically, the Plan gives the administrator discretion to “determine all
questions concerning the rights of Pilot Employees under the Plan, which decisions shall be final
and binding upon the Employer, unless arbitrary and capricious.” Therefore, the denial of Mr.
Turner’s claim for disability benefits would normally be reviewed under the arbitrary and
Mr. Turner, however, argues that the arbitrary and capricious standard should not apply
in this case, because the Plan administrator failed to issue a timely decision on his appeal.
According to ERISA regulations, American was required to decide Mr. Turner’s appeal within
forty-five days, with the possibility of a forty-five day extension if special circumstances existed
and written notice was given. 29 C.F.R. § 2560.503-1(i)(1)(I), (3)(I). Here, it took American
407 days to issue its adverse decision on Mr. Turner’s appeal.
Mr. Turner claims that American’s failure to issue a timely appeal amounted to a
“deemed denial.” Mr. Turner bases his argument on a former ERISA regulation that provided
that if an plan administrator’s appeal decision was not timely furnished, the claim would be
“deemed denied.” In some circuits, “a deemed denial receives no deference upon judicial
review, since the plan administrator did not in fact exercise any discretion.” Torres v. Pittston
Co. 346 F.3d 1324, 1332-33 (11th Cir. 2003). Other circuit courts have had “held that the fact
that the denial occurs by operation of ERISA regulations does not alter the otherwise-applicable
standard of review.” Id. The Eleventh Circuit has not taken an express position on the issue.
However, the regulation cited by plaintiff was amended in 2000.2 The amendments
removed the words “deemed denied” and replaced them with “deemed to [be] exhausted.” The
current regulation provides as follows:
the failure of a plan to establish or follow claims procedures consistent with the
requirements of this section, a claimant shall be deemed to have exhausted the
administrative remedies available under the plan and shall be entitled to pursue
any available remedies under section 502(a) of the Act on the basis that the plan
has failed to provide a reasonable claims procedure that would yield a decision on
the merits of the claim.”
29 C.F.R. § 2560.503-1(I). The current “regulation, like its predecessor, protects a claimant by
insuring that the administrative appeals process does not go on indefinitely.” LaAsmar v. Phelps
Dodge Corp. Life, Accidental Death & Dismemberment & Dependent Life Insurance Plan, 605
F.3d 789, 798 (10th Cir. 2010).
Whether, under the amended regulation, an untimely appeal decision should receive less
deference upon judicial review is an issue that most circuit courts have left unresolved. See
Krauss v. Oxford Health Plans, Inc., 517 F.3d 614, 624 (2d Cir. 2008) (“Although amended
regulations have replaced the ‘deemed denied’ provision with one that, upon a defendant's
failure to follow regulatory time frames, deems a plaintiff's administrative remedies exhausted,
see 29 C.F.R. § 2560.503-1( l ), and neither we nor any other circuit has, to our knowledge,
addressed whether de novo review similarly applies under the revised regulations, we join our
sister circuits in delaying resolution of the question for another day.”); Gatti v. Reliance
Standard life Ins. Co., 415 F.3d 978, 982 (9th Cir. 2005) (“We do not address the question of
The amendment applies to claims, such as the instant one, filed on or after January 1, 2002
whether, under the new regulation, claimants who can establish a failure to comply with the
claims procedures established by ERISA regulations are entitled to de novo consideration of
their claims.”). However, it is likely that, in the circuits where a “deemed denial” was entitled to
deference on judicial review, an untimely decision under the amended regulation would still be
entitled to deference.
Under the facts of this case, the court finds that the Plan administrator’s denial of Mr.
Turner’s appeal should be entitled to deference for several reasons. First, Mr. Turner did not file
the instant lawsuit when the administrator failed to issue a timely decision, but instead waited for
the administrator’s decision. Thus, unlike deemed denial cases where the insurer fails to issue a
decision before the claimant files suit, in this case the Plan administrator did issue a decision and
did exercise discretion in denying Mr. Turner’s claim. Thus, the justification for applying the de
novo standard in many deemed denial cases – i.e. because the plan administrator did not actually
exercise any discretion – does not apply here. See Demirovic v. Building Service 32 B-J Pension
Fund, 467 F.3d 208, 211-12 (2d Cir. 2006) (holding that a appeal decision was entitled to
deference even after a procedural violation, because the “eventual decision [was an] exercise of
the Fund's discretion, to which [the court] must defer”).
Second, there is no record evidence that the delay in deciding Mr. Turner’s appeal was
the result of bad faith or negligence. The PBAC sent Mr. Turner’s claim to the UTMB for
review shortly after American and the APA decided that the UTMB would serve as interim
independent clinical authority. Unfortunately, Hurricane Ike struck Texas and prevented the
UTMB from timely reviewing his file. Subsequently, American and the APA spent several
months considering new clinics. Once they finally selected Mayo, Mr. Turner’s claim was sent
to Dr. Cowl for review, and the month after he issued his report, the PBAC issued its ruling. The
record therefore shows that the delay in deciding Mr. Turner’s appeal was not the result of bad
faith, but instead a series of uncontrollable events. See Finley v. Hewlett-Packard Co. Employee
Benefits, 379 F.3d 1168, 1173-74 (10th Cir. 2004); Jesbian v. Hewlett Packard Co., 349 F.3d
1098, 1103 (9th Cir. 2003) (holding that deference is still due where the plan administrator is
“engaged in a good faith attempt to comply with its deadlines when they lapse”).
Third, Mr. Turner was an active participant in the appeal process. The record reveals that
there were ongoing exchanges between the parties while the appeal was pending. On October
23, 2008, the date of expiration of the 45-day review period, the PBAC sent Mr. Tuner a letting
explaining that a 45-day extension would be required to complete a full and fair review of his
case. Then, on December 12, 2008, the PBAC sent Mr. Turner a letter explaining that there was
a change in clinical authorities and informing him that his claim had been submitted to UTMB.
And on July 6, 2009, the PBAC sent Mr. Tuner a letter explaining that Mayo was the new
independent medical authority and that his claim had been submitted to Mayo for review.
Further, Mr. Turner sent American updated medical records while the appeal was pending.
Given that the delay was not the product of bad faith, and that there was an ongoing exchange
between the parties, the court finds that de novo review is not appropriate. See Torres v. Pittston
Co., 346 F.3d 1324, 1333-34 (11th Cir. 2003) (observing that
considerations – “e.g. that there were ongoing exchanges between the parties warranting time
extensions, or that the Insurers . . . did issue a determination (albeit one well past the deadline,
but before receiving notice of [claimant’s] suit)” – might “negate the purpose of applying de
Step Three: Was the Decision Supported by Reasonable Grounds?
The third step of the Williams analysis examines 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. Doyle v. Liberty Life Assurance Co. of Boston, 542 F.3d 1352, 1358 (11th Cir. 2008). As
long as there is a reasonable basis for the decision, it “must be upheld as not being arbitrary or
capricious, even if there is evidence that would support a contrary decision.” White v.
Coca–Cola Co., 542 F.3d 848, 856 (11th Cir. 2008). “If the evidence is close, then the
administrator did not abuse its discretion, and the requisite deference compels the affirmance of
the administrator's decision.” See Meadows v. American Airlines, Inc., 2011 WL 1102774, at * 7
(S.D. Fla. Mar. 24, 2011) (internal quotations and citations omitted).
The court must “begin with the language of the Plan itself” in determining whether the
Plan administrator’s denial of benefits was arbitrary and capricious. Oliver v. Coca Cola Co.,
497 F.3d 1181, 1195 (11th Cir. 2007). Here, to receive benefits under the Plan, a participant
must be unable to work as a result of a disability. The Plan defines a disability as “an illness or
injury, verified though a qualified medical authority . . . which prevents a Pilot Employee from
continuing to act as an Active Pilot Employee in the Service of the Employer.” (AR 0000006).
According to the plan, a disability “will be considered to cease to exist if (1) health is restored so
as not to prevent the Pilot Employee from acting as an Active Pilot Employee in the service of
the company, (2) verification of such Disability can no longer be established, (3) appropriate
medical care is wantonly disregarded by such Pilot Employee.” (AR 0000009).
Here, the record shows that Mr. Turner was diagnosed with sleep apnea in 2005 and,
after taking disability leave, was able to return to work and successfully perform his job duties
while using CPAP therapy. Mr. Turner, however, stopped complying with this CPAP therapy in
2007. Over a period of 182 days between February 25, 2007 and August 25, 2007, Mr. Turner
did not use CPAP therapy at all on 116 days. Between October 28, 2007 and January 27, 2008,
Mr. Turner did not use CPAP therapy at all on 47 out of 91 days. Because he was not using his
CPAP therapy, Mr. Turner’s treatment had become ineffective and he was unable to work.
As a result of Mr. Turner’s failure to comply with his CPAP therapy, the Plan
administrator found that his disability could not longer be verified and that he had wantonly
disregarded treatment. Based on the materials available to the plan administrator at the time of
his decision, the court find that his decision was neither arbitrary nor capricious.
To be sure, the record shows that Mr. Turner was having trouble tolerating the CPAP
therapy. According to Dr. Chediak’s notes, Mr. Turner would remove his CPAP mask while he
was sleeping, not because of a purposeful decision to reject the treatment, but because of
The tolerance issue explains why Mr. Turner had 54 days of
noncompliance over a period of 273 days. But issues with tolerance does not explain why Mr.
Turner failed to use CPAP treatment at all on a significant number of days.
Mr. Turner argues that American was arbitrary and capricious because “it failed to look
at the ultimate conclusions of Dr. Chediak[,] and instead, only emphasized those sections of the
medical reports that seemed to provide support for American’s denial [while] ignoring all other
findings.” See DE # 16, p. 7. Mr. Turner’s argument, however, is belied by the record, which
shows that Dr. Chediak’s medical observations were considered by Dr. Cowl during his
independent medical examination.
Chediak’s findings and conclusions.
Indeed, Dr. Cowl’s report cites and summarizes Dr.
Additionally, Plan administrators “are not obliged to
accord special deference to the opinions of treating physicians.” Black & Decker Disability Plan
v. Nord, 538 U.S. 822, 825, 123(2003). Though ERISA and federal regulations “require ‘full
and fair’ assessment of claims . . . these measures do not command plan administrators to credit
the opinions of treating physicians over other evidence relevant to the claimant's medical
Mr. Turner also argues that American was arbitrary and capricious in failing to contact
his treating physician, Dr. Chediak, before making its appeal decision. However, there is no
requirement that American or its independent medical examiner contact Mr. Turner’s treating
physician before issuing a decision. See Jett v. Blue Cross & Blue Shield of Ala., 890 F.2d 1137,
1139 (11th Cir. 1989)(holding that plan administrator’s decision not to contact treating physician
was not an abuse of discretion); Reimann v. Anthem Ins. Companies, Inc. 2008 WL 4810543, at
* 24 (S.D. Ind. Oct. 31, 2008) (holding that “nothing in the statute or regulations requires either
[the claim’s administrator] or the independent physicians evaluating [claimant’s] claim to
contact her or her treating physicians”). In addition, although Dr. Chediak could have clarified a
couple questions about his notes, the record shows that American had all the information it
needed to make a well-informed decision about whether Mr. Tuner was disabled and entitled to
Mr. Turner argues that American was arbitrary and capricious in relying on the opinions
and conclusions its independent medical examiner, Dr. Cowl, because he is not a “qualified sleep
medicine specialist” and therefore lacks the requisite training to opine on the issue of sleep
apnea. The court disagrees. “[A]n ERISA plan is not required to hire specialists for every
claimed malady.” Mote v. Aetna Life Ins. Co., 502 F.3d 601, 607 (7th Cir. 2007). Here, it
appears that Dr. Cowl is qualified to render his opinions and conclusions. He is a highly
credentialed doctor at a well-known hospital, with training in internal medicine, pulmonary
diseases, and preventative medicine. Accordingly, the Plan administrator’s reliance on his report
was not arbitrary and capricious.3
Final Step: Was there a Conflict of Interest?
The final step in the Williams analysis is to determine whether the defendant operated
under a conflict of interest that tainted its decision. Here, Mr. Turner contends that a conflict of
interest exists because American not only determines the eligibility for disability benefits, but
also pays such benefits. Defendant argues that there is no conflict of interest because disability
benefits are paid from a trust, which is funded through periodic, non-reversionary contributions.
The Eleventh Circuit has held that no conflict of interest exists where plan benefits are
paid out of a trust funded by periodic, non-reversionary payments. See Townsend v. Delta
Family-Care Disability & Survivorship Plan, 295 F. App’x 971, 975-76 (11th Cir. 2008); White,
542 F.3d at 858. However, “some courts have interpreted [the law] to institute a broader view of
the existence of a structural conflict of interest . . .[,] because even in an actuarially grounded
plan, the employer provides the monetary contribution and any money saved reduced the
employer’s projected benefit obligation.”
Meadows, 2011 WL 1102774, at * 21 (internal
citations and alterations omitted).
Here, even if a structural conflict exists, American “has taken active steps to reduce any
potential bias – i.e., by using a trust funded through non-reversionary payments and requiring the
involvement of an independent medical consulting entity.” Id. at 22. Further, Mr. Turner has
introduced no evidence “of a pattern or practice of unreasonably denying meritorious claims, of
evidence that was disregarded, or of the production of only selective medical evidence.” Id.; see
Mr Turner complains that Dr. Bettes’ initial benefits denial letter failed to inform Mr.
Turner what type of information he must submit in his appeal. After carefully reviewing Dr. Bettes’
letter, the court finds that this argument is without merit.
Order Granting Defendant’s Motion for Summary Judgment
Turner v. American Airlines, Inc.
Case No. 10-80623-CIV-HURLEY/HOPKINS
Miller v. Prudential Ins. Co. of Am., 625 F.Supp.2d 1256, 1266 (noting, even where a conflict is
present, a lack of evidence of “malice, self dealing, [or] a parsimonious claims granting history”
renders the conflict of low importance). Therefore, any conflict of interest favors Mr. Turner
only slightly, and does not affect the court’s determination that the Plain administrator’s decision
After carefully reviewing the administrative record, the applicable law, and the parties
briefs, the court concludes that (1) the denial of Mr. Turner’s appeal is entitled to deference on
judicial review; (2) the Plan administrator did not act arbitrarily or capriciously in denying Mr.
Turner’s appeal; and (3) any potential conflict of interest does affect the court’s determination
that American acted reasonably.
Accordingly, it is ORDERED and ADJUDGED that:
Defendant’s motion for Summary Judgment [DE # 9] is GRANTED.
Pursuant to Fed. R. Civ. P. 58(a), the court will enter final judgment by separate
DONE and ORDERED in Chambers in West Palm Beach, Florida, this 21st day of April,
Daniel T. K. Hurley
U.S. District Judge
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