IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 95-30588

___________________

EDWARD EARL LYND,

Plaintiff-Appellant,

versus

RELIANCE STANDARD LIFE INSURANCE

COMPANY; FORD BACON & DAVIS, INC.

Defendants-Appellees

________________________________________________

Appeal from the United States District Court for the

Western District of Louisiana

________________________________________________

August 30, 1996

Before GARWOOD, EMILIO M. GARZA and DENNIS, Circuit Judges.

GARWOOD, Circuit Judge:

Bringing this action under ERISA, 29 U.S.C. § 1001, et seq

.,

plaintiff-appellant Edward E. Lynd (Lynd) alleged in his complaint

that the benefits he had been receiving pursuant to a long-term

disability plan were wrongfully terminated. In his appeal of the

district court’s rulings on the parties’ cross motions for summary

judgment, Lynd presently contends that the district court reviewed

the plan administrator’s decision to terminate these benefits under

an inappropriate standard of review, and that the grant of summary

judgment dismissing his suit was erroneous.2 Facts and Proceedings Below

Lynd was employed by defendant-appellee Ford, Bacon & Davis,

Inc. (FBD) on December 18, 1989. In September of 1990, Lynd became

unable to work and began receiving short-term disability benefits

under FBD’s Employee Welfare Benefit Plan (the plan). After six

months, Lynd applied for and began receiving long-term disability

benef its. The group policy associated with this long-term

disability plan was issued by defendant-appellee Reliance Standard

Life Insurance Company (Reliance).

Long-t erm disability payments were made to Lynd for twentyfour consecutive months. At the close of this two-year period, on

March 9, 1993, the plan administrator terminated these payments to

Lynd. The administrator made this decision to terminate benefits

based on a limitation provision found in both the master policy and

the certificate of insurance which stated that, “Monthly Benefits

for Total Disability due to mental or nervous disorders will not be

payable beyond twenty-four (24) months unless you are in a Hospital

or Institution at the end of the twenty-four (24) month period.”

Following the termination of these benefits, Lynd filed a

peti tion in the Fourth Judicial District Court of Louisiana

alleging that his disability did not result from a “mental or

nervous disorder[],” and that his benefits under the plan were

therefore wrongly terminated by defendants-appellees. The action

was removed to federal district court pursuant to 28 U.S.C. § 1331,3

a nd the parties thereafter filed cross motions for summary

judgment. The district court denied Lynd’s motion and, in granting

appellees’ motion, held that the plan administrator had not abused

its discretion in deciding to terminate benefits.

On appeal, Lynd contends that the district court erred by

reviewing the plan administrator’s decision under an abuse of

discretion standard. Lynd argues that the district court should

have reviewed the plan administrator’s d ecision d e novo

.

Furthermore, Lynd maintains that, regardless of the standard of

review employed, his long-term disability benefits were wrongfully

terminated.

Discussion

Whether the district court employed the appropriate standard

in reviewing an eligibility determination made by an ERISA plan

administrator is a questio n of law. S ee Chevron Chemical Co. v.

Oil, Chemical and Atomic Workers Local Union 4-447

, 47 F.3d 139,

142 (5th Cir. 1995). Therefore, we review the district court’s

decision de novo

.

In Firestone Tire and Rubber Co. v. Bruch

, 109 S.Ct. 948, 956-

57 (1989), the Supreme Court established that a denial of ERISA

benefits by a plan administrator should be reviewed de novo by the

courts unless the plan gives the adminis t rator “discretionary

authority to determine eligibility for benefits or to construe the

terms of the plan.” However, it remains unclear precisely what1 The plan at issue in D uhon addressed the di scretionary

authority of the administrator in two passages: (1) “The decisions

of the Plan Administrator shall be final and conclusive with

respect to every question which may arise relating to either the

interpretation or administration of this Plan;” and (2) “After you

un dergo the necessary physical examination(s) and upon review of

all facts in the case, the Plan Administrator will make the

decision to authorize or deny payments.” Id. at 1305.

4 language must be employed in the plan to confer such discretionary

authority upon the plan administrator. In Duhon v. Texaco, Inc.

,

15 F.3d 1302 (5th Cir. 1994), this Court applied the analysis from

Bruch to the language of an ERISA plan and held that de novo review

was inappropriate because:

“[I]t is clear that the plan ad ministrator has the

discretionary authority to make a final and conclusive

determination of the claim. This court has not imposed

a linguistic template to satisfy this requirement . . .

but in this case the plan’s plain language provides that

the administrat o r may make an independent and final

determination of eligibility.” I d. at 1305-06 (citations

omitted). 1

Additionally, we have observed that t he requisite grant of

discretionary authority cannot be inferred from the language of an

ERISA plan. In C hevron Chemical Co., supra

, i n the course of

holding abuse of discretion was the proper standard of review, we

stated that:

“[T]he Supreme Court ‘surely did not suggest [in Bruch ]

that ‘discretionary authority’ hinges on incantation of

the word ‘discretion’ or any other ‘magic word.’ Rather,

the Supreme Court directed lower courts to focus on the

breadth of the administrators’ power

—— their ‘authority to

determine eligibil ity for benefits or to construe the

terms of the plan’. . . .’ On the other hand,

discretionary authority cannot be implied

. . . ‘an

administrator has no discretion to determine eligibility2 Lynd concedes that, if he is found to be disabled as a result

of a “mental or nervous disorder,” then he cannot recover under the

plan; he allows that “it makes absolutely no difference” which

standard is employed to review the administrator’s determination of

eligibility should his disability be so characterized.

5 or interpret the plan unless the plan language expressly

confers such authority on the administrator.’” 47 F.3d at

142 (citations omitted).

In the present case, however, we pretermit the issue regarding

which standard of review the district court should have employed in

reviewing the plan administrator’s eligibility determination. We

do so because, re gardless of whether the district court reviewed

the administrator’s eligibility determination for abuse of

discretion or de novo

, the nature of Lyn d’s disability compelled

the district court to conclude that Lynd’s long-term benefits under

the plan were properly terminated. 2

Section 8.0 of the instant plan includes the limitation that

“Monthly Benefits for Total Disability due to m ental or nervous

disorders will not be payable beyond twenty-four (24) months unless

you are in a Hospital or Institution at the end of the twenty-four

(24) month period.” The parties do not dispute that Lynd remains

disabled. Neither, however, is there any suggestion that Lynd was

hospitalized or institutionalized on March 9, 1993, at the end of

the two-year period during which he received long-term disability

benefits. Therefore, this dispute turns on the proper

characterizat ion of Lynd’s disability; specifically, it must be

determined whether or not his disability constituted a “mental or3 The following characterizations of Lynd’s disability were

attached to Reliance’s motion for summary judgment:

(1) In a letter of October 22, 1990, Lynd’s treating physician,

psychiatrist Dr. Arthur Dumont III, described Lynd’s disability as

“major depression”;

(2) In a letter of April 24, 199 1, Dr. Dumont described Lynd’s

disability as “a severe treatment resistant depression”;

(3) In a letter of January 14, 1992, Dr. Dumont described Lynd’s

disability as “a severe major depressive disorder”;

(4) In a letter of May 12, 1993, Dr. Dumont characterized Lynd’s

disability as a “major depressive illness.”

6 nervous disorder” within the meaning of this plan. We hold that

t he district court correctly affirmed the plan administrator’s

determinati on that Lynd’s disability was due to a “mental or

nervous disorder”; therefore, the district court’s holding is

affirmed regardless of the standard of review employed by the

district court in reviewing the plan administrator’s eligibility

determination.

The undisputed evidence before the district cou rt was that

Lynd was diagnosed on September 19, 1990, as suffering from “major

depressive disorder.” This diagnosis, documented on Lynd’s

benefits claims form, has remained static since that time. 3

However, Lynd contends that this gener al diagnosis of his

disability

—— as a “maj or depressive disorder”

— — comports with his

claim that his condition is physical in nature. In support of this

position, Lynd presented to the district court the deposition

(taken well after benefits were denied) of his treating physician,7

psychiatrist Dr. Dumont, in which Dr. Dumont asserted his belief

that depression is a “physical” disorder:

“Q: All right, sir. But I guess the question I am

driving at is, depression itself, that is not something

caused from a physical disorder itself?

A: Yes, it is. Yes, it is. We think of depression as

being a chemical imbalance. It is a malfunction in the

part of the brain that controls mood regulation. And we

see it as us ually an inefficiency of the

neurotransmitters or a relative deficit of certain

neurotransmitters and we try to treat that by utilization

of medications that can help elevate or increase the

efficiency of the neurotransmitters.

. . . Q: All right, sir. So depression in essence

results from a nervous disorder as I understand?

A: From a disorder of the central nervous system.”

Dr. Dumont further testified that:

“Major depression is a disease and it has a physiologic

basis every bi t as much as diabetes, hypertension,

cardiomyopathy or any other”

and that in his opinion “every major depressive disorder

implicate[s] inefficiency of neurotransmitters in the central

nervous system.”

Dr. D umont testified regarding the symptoms experienced by

Lynd as a consequence of his “major depressive disorder”:

“[Lynd] reported symptoms of lack of physical stamina,

loss of energy and inter est, unable to deal with

pressure, unable to make decisions, he had sleep

disturbance, he would wake up in a cold sweat with

apprehension. He had to leave the office early one day

or went to the office early one day and found anxiety so

great he had to leave. He has been very anergic meaning

no energy and ahdonia [sic] meaning unable to experience

pleasure. He thus contacted Dr. Nichols who then

referred him to me.”4 The medication included Prozac, Wellbutrin, Lithium, Desyrel,

Klonopin, Buspar, Anafranil, Depakote, Cylert, Zoloft, and Serzone.

8 Dr. Dumont expressed the view that “resolution of Mr. Lynd’s major

depressive disorder would remove his disability.”

Dr. Dumont described himself as “a physician who specializes

in the practice of psychiatry.” He saw Lynd on referral from

Lynd’s regular physician, but received from the referring physician

no “documentation” or “medical reports.” When asked if his records

reflected “whether Mr. Lynd had any physical disorder or diseases,”

Dr. Dumont responded, “not of any consequences that would have been

co nnected with this, no.” Dr. Dumont treated Lynd with

psychoreactive medication and psychotherapy. 4 When asked “You did

not conduct a physical examination” of Lynd, Dr. Dumont

unqualifiedly responded “No, I did not.”

This Co u rt has not previously addressed the interpretive

issues raised by the allegation that the “physical” aspects of

“mental” illnes ses necessarily impact the construction of such

qualifying phrases as “mental or nervous disorders” used in ERISA

plans. However, we find the Eighth Circuit’s approach to be

instructive:

“It would be improper and unfair to allow experts to

define [ERISA plan] terms that were specifically written

for and targeted toward laypersons. This requirement

p rovides a source from which we may fashion a f ederal

common law rule; the terms should be accorded their

ordinary, and not specialized, meanings.

The cause of a disease is a judgment for experts,

while laymen know and understand symptoms. Laymen5 In identifying the “causes” and “symptoms” of illnesses, it

seems that an argument could always be fashioned that the illness

itself should be viewed as a “symptom” of some underlying

“physical” cause; this is particularly true if one is willing to

trace the origins of the illness ad infinitum

. An illustration of

this is provided by Dr. Dumont’s testimony that depression

represents a “chemical imbalance” and stems from “an inefficiency

of the neurotransmitters

. . .” The Eighth Circuit reasonably

concludes that, within this analytical framework, laymen will look

to the “symptom” of an illness in order to characterize that

illness, and the symptom “depression” is indicative of a “mental”

illness.

9 undoubted ly are aware that some mental illnesses are

organically caused while others are not; however, they do

not classify illnesses based on their origins. Instead,

laypersons are inclined to foc us on the symptoms of an

illness; illnesses whose primary symptoms are depression,

mood swings and unusual behavior are commonly

characterized as mental illnesses regardless of their

cause.

. . . By focusin g upon the disease’s etiology, the

district court considered factors that are important to

experts but not to laypersons. The court thus failed to

examine the term “men tal illness” as a layperson would

have, which is the exa mination we conclude ERISA and

federal common law require.” B rewer v. Lincoln National

Life Ins. Co. , 921 F.2d 150, 154 (8th Cir. 1990) , cert.

denied

, 111 S.Ct. 2872 (1991); see also Stauch v. Unisys

Corp., 24 F.3d 1054, 1056 (8th Cir. 1994) (observing that

when an ERISA plan participant complained of depression,

sleeplessness, impaired concentration and other symptoms,

the court concluded that the participant “suffered from

what laypersons would consider” a “mental” or “nervous”

disorder). 5

In its DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS,

the American Psychiatric Association (APA) acknowledges that there

is no bright-line distinction betwe en “mental” disorders and

“physical” disorders. Nevertheless, the APA also recognizes that,

while “there is much ‘physical’ in ‘mental’ disorders,” the phrase10

“mental disorder” persi sts “because we have not found an

appropriate substitute.” American Psychiatric Association,

DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS xxi (Fourth

Edition, 1994). Accordingly, the APA has not wavered from its

classification of Lynd’s disability

—— “major depressive disorder”

——

as a “mental disorder.” I d. at 339. Thus, it is not just the lay

population that holds to the view that certain disorders are

properly and necessarily characterized as “mental disorders,” even

though what is thus referred to may have a “physical” aspect and/or

origin, as well.

The approach taken by the Ninth Circuit in Patterson v. Hughes

Aircraft Co.

, 11 F.3d 948 (9th Cir. 1993), is also instructive. In

Patterson

, the court confronted an ERISA p lan pursuant to which

benefits resulting from “mental, nervous or emotional disorders of

any type” would be limited to two year s. I d. at 949. The court

observed that the plan did not define “mental disorder,” and held

that ambiguities in the plan were to be resolved in favor of the

plan participant. I d. at 950. In reaching its conclusion that

the term “mental disorder” was ambiguous in this context, the court

a sserted its view that, when a disability was caused by

“depression,” then that disability would be properly characterized

as resulting from a “mental disorder”: “If Patterson’s disability

was c aused solely by his depression, . . . then his condition is

subject to the two-year limitation by any possible meaning of the6 The court’s view that disabilities caused by depression fall

within the classification of “mental disorders” is further

underscored by the following:

“First, the Plan does not specify whether a disability is

to be classified as ‘mental’ by looking to the cause of

the disability or to its symptoms. Since the ambiguity

is to be resolved in Patterson’s favor, his disability is

not a mental disorder subject to the two-year limitation

on payments if it is either manifested by headaches

though caused by depression, or caused by headaches but

manifested by depression.

Second, the Plan does not make clear whether a

disability qualifies as a ‘mental disorder ’ when it

res ults from a combination of physical and mental

factors. Patterson’s disability may result solely from

depression, or solely from headac hes, or from a

combination of the two. Since this ambiguity must also

be resolved in Patterson’s favor, he is not within the

limitation for mental disorders if his disability is

caused in any part by headaches.” I d. at 950 (citations

omitted).

7 Patterson filed his claim for benefits under the ERISA plan

at issue in that case “for disability benefits due to headaches.”

Id. at 949.

11 Plan’s term ‘mental disorder.’” Id. at 951. 6

The court ultimately remanded the case to the district court,

concluding that, “[I]f Patterson’s hea daches contributed to his

total disability, or they are either a cause o r symptom of his

depression, then Patterson’s disability does not fa ll within the

‘mental disorder’ limitation interpreted in his favor.” I d. at 951

(emphasis add ed). The court reached this conclusion because the

cause of Patterson’s disability had no t been determined. I d. 7

However, the language quoted above woul d apparently sanction the

conclusion that, even if it were established that the cause of12

Patterson’s disability was “d epression”

— — and that Patterson’s

headaches were only a symptomof his depression

— — then Patterson’s

disability would nevertheless fail to constitute a “mental

disorder.” We disagree with this view, particularly if the court

intended that this analysis apply not only to Patterson’s

headaches, but to all “physical” symptoms of “mental” disabilities.

If we begin with the premise that t he cause of a disability is

“mental”

—— and the Eighth and Ninth Circuits, as well as the American

Psychiatric Association, characterize “depression” as a “mental”

disorder

—— then to find that a disability falls outside of the term

“mental disorder” (as used in an ERISA plan) because the disability

has “physical” symptoms would render the term “mental disorder”

obsolete in this context. As the ERISA plan in the instant case

pointedly refers to “mental or nervous disorders,” it would be

inappropriate to effectively collapse the term “mental disorder” to

includ e only those illnesses, if any exist, which have no

“physical” manifestations. If the exclusion of disability, lasting

more than twenty-four months, due to “mental or nervous disorders”

is to mean anything

— — and we think it must

—— then there is no

principled basis on which to exclude Lynd’s “major depressive

disorders” from the reach of that exclusion.

Lynd suffers from “major depressive disorder”. There has been

no suggestion that Lynd’s major depression is in some relevant

aspect unusual, nor that his disability is caused by anything other

than this disorder. As noted, Dr. Dumont testified that13

“resolution of Mr. Lynd’s major depressive disorder would resolve

his disability.” Instead, Lynd maintains that his condition falls

outside the phrase “mental or nervous disorder” simply b ecause

“every major depressive disorder,” according to Lynd’s

psychiatrist, has “physical” origins and symptoms. Based on this

evidence, the di strict court was compelled to affirm the plan

administrator’s eligibility determination, regardless of the

standard of review employed by the district court in reviewing this

determination.

Accordingly, the judgment of the district court is

AFFIRMED.