IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20477

Summary Calendar

PATRIZIA LALONDE,

Plaintiff – Appellant

v.

CHRISTUS HEALTH TEXAS OCCUPATIONAL INJURY ASSISTANCE 

PLAN; CHRISTUS HEALTH,

Defendants – Appellees 

Appeal from the United States District Court 

for the Southern District of Texas

No. 4:12-cv-1752

Before KING, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Patrizia Lalonde appeals the district court’s order granting summary

judgment in favor of Christus Health Texas Occupational Injury Assistance 

Plan in this Employee Retirement Income Security Act case. Because there is 

substantial evidence in the record to support the denial of benefits, we 

AFFIRM the judgment of the district court. 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 29, 2014

Lyle W. Cayce

Clerk

 

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I. Factual and Procedural Background

Patrizia Lalonde is a registered nurse and was employed by Christus St. 

Michael Health System in Texarkana, Texas. Throughout her employment, 

Lalonde was covered by the Christus Health Texas Occupational Injury 

Assistance Plan (“the Plan”). The Plan provides a number of benefits, 

including Wage Replacement Benefits (“WRB”), which are payable to a Plan 

participant who is temporarily totally disabled1 due to an injury that occurred 

in the course and scope of employment. On May 22, 2010, Lalonde injured her 

back at work while lifting an overweight patient. The injury was promptly 

reported to the Plan, and the Plan arranged for Lalonde to receive medical care 

from Mark Gabbie, M.D., an Approved Physician.2 

Dr. Gabbie first saw Lalonde on May 26, 2010. He noted that Lalonde 

had tenderness, swelling, and muscle spasms, but she had no radicular signs 

or symptoms. Dr. Gabbie diagnosed her with a lumbosacral strain, sacroiliac 

strain, and muscle spasms. He prescribed medication and ordered physical 

therapy three times a week for two weeks. He further recommended that she 

perform only light duty work, with specific postural limitations, and stated 

1 “Temporarily totally disabled” is defined by the Plan as:

Medically demonstrable anatomical or physiological abnormality caused by an 

injury, and commencing within six months from the date of injury that—

(a) causes the Participant to be unable to perform the normal duties for 

which he or she was employed;

(b) causes the Participant to be under the regular care of an Approved 

Physician; and

(c) causes the participant to be unable to engage in Transitional Duty or 

any other occupation for wage or profit.

2 The Plan defines “Approved Physician” as “a person duly licensed under Texas law 

as a Doctor of Osteopathy or Medical Doctor and either expressly approved by the Plan

Administrator, included on an approved list . . . , or otherwise approved in writing by the 

Plan Administrator upon the request of a Participant.” 

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that he would re-evaluate Lalonde’s condition after physical therapy. The Plan

authorized her physical therapy. 

On June 16, 2010, Lalonde returned to Dr. Gabbie, and he opined that 

the physical therapy had exacerbated her pain. Dr. Gabbie noted radicular 

pain and burning in her right leg. He diagnosed her with sciatica, lumbosacral 

strain, and radiculopathy; ordered an MRI; and recommended that she remain 

on light duty work. 

The MRI, performed on June 23, 2010, revealed that Lalonde had severe 

multilevel degenerative disease; that disc protrusions and posterior element 

hypertrophy from T12-L1 through L2-L3 caused significant AP canal stenosis; 

and that she had mild to moderate canal stenosis at L3-L4. 

On July 21, 2010, Lalonde saw Dr. Gabbie for a third time and 

complained of continued pain and mild incontinence. Dr. Gabbie recommended 

to the Plan that Lalonde be evaluated by Marc Smith, M.D., a neurosurgeon, 

and that she receive steroid injections in her back. Dr. Gabbie diagnosed 

Lalonde with “lumbar spine stenosis” and recommended that she continue on

light duty. Dr. Gabbie’s records from this visit are silent as to whether 

Lalonde’s pain was caused by her May work injury. 

On July 28, after receiving Dr. Gabbie’s recommendation, the Plan sent

Lalonde’s file to Ken Ford, M.D., an Approved Physician, for an evaluation of 

Lalonde’s pre-existing condition. Dr. Ford believed that there was no objective, 

verifiable evidence of an injury resulting from the May incident, nor of any 

aggravation of a pre-existing condition. He stated that the MRI showed only 

“incidental, pre-existing multilevel degenerative changes,” with no “acute 

changes” as a direct result of the work incident. He concluded that, based on 

the documentation, Lalonde “at most, may have experienced some soft tissue 

muscle strain” requiring one or two clinic visits and some over-the-counter 

medications.

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During this period, Lalonde continued to request medical treatment 

under the Plan. She contacted her designated Plan adjuster to obtain 

authorization for a visit to Dr. Smith, but she was told that Dr. Smith was not 

an Approved Physician. According to Lalonde’s affidavit, the adjuster directed

her not to act until she received instructions from the Plan. She claims to have 

placed numerous calls to the adjuster over a five-day period in early August 

2010, but her calls went unanswered. During this time, Lalonde also requested 

authorization from the Plan to return to Dr. Gabbie for further treatment, but 

the Plan denied permission.

On August 9, 2010, Lalonde was sent home from work by her supervisor 

because she was in “no condition” to work. Since she had not received 

authorization from the Plan for further medical care, she claims that she had 

no choice but to seek outside medical care. On August 12, 2010, she was

treated by Ronald Rush, M.D., a non-Approved Physician. Lalonde complained 

of pain in her lower back and minimal relief from the medications prescribed 

by Dr. Gabbie. Dr. Rush examined Lalonde and diagnosed her with 

hypertension, sinusitis, allergic rhinitis, peripheral neuropathy, and back 

pain. He reviewed her MRI and noted that she had moderate canal stenosis, 

secondary to disc protrusion. Dr. Rush referred Lalonde to a neurosurgeon for 

a consultation on the treatment of her back pain and spinal stenosis. Although 

Dr. Rush’s examination notes do not discuss Lalonde’s ability to work, Dr. Rush 

signed a slip stating that Lalonde would “be able to return to work/school on 8-

26-2010 . . . [with] No Restrictions.”

The same day that Lalonde saw Dr. Rush, the Plan denied Dr. Gabbie’s 

neurosurgical referral as well as his request that Lalonde receive steroid 

injections, stating that there was no objective evidence of radiculopathy. The 

denial was based upon Dr. Ford’s peer review of Lalonde’s medical records. 

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Lalonde filed a claim for WRB as of August 12, 2010, alleging temporary 

total disability. On August 20, 2010, Lalonde wrote to the Plan protesting the 

denial of Dr. Gabbie’s referral. She claimed that she was in pain, Dr. Rush had 

removed her from work, and she was incapable of performing light duty work. 

She further stated that, after receiving no response from the designated Plan 

adjuster, she had no choice but to seek treatment outside the Plan. She 

attached records from Dr. Gabbie in support of her claim.

On August 25, 2010, the Plan requested that Lalonde undergo an

Independent Medical Exam (“IME”) by an Approved Physician. It also asked 

Lalonde to furnish copies of her medical records from Dr. Rush within ten days

in order to assist with the IME. 

On August 26, 2010, Lalonde returned to Dr. Rush for a follow-up visit. 

Dr. Rush signed a slip similar to the one signed on August 12, confirming that 

he had seen Lalonde, and she would “be able to return to work/school . . . after 

Eval. [with] No Restrictions,” stating “Excuse pt. til release by Dr.” The slip 

contains no additional information. Lalonde reported to Dr. Rush that she still 

suffered from back pain, but Dr. Rush’s examination notes contain no 

additional details about her back’s condition. Several weeks later, Dr. Rush 

referred Lalonde to a neurosurgeon, Zachary Mason, M.D. Dr. Rush also 

ordered an electrodiagnostic examination, which was performed on October 8, 

2010.

Throughout this period, Lalonde’s counsel corresponded with the Plan, 

questioning the need for an IME and updating the Plan on Dr. Rush’s 

treatment of Lalonde. On October 12, 2010, the Plan informed Lalonde’s 

counsel that it would not pay WRB based on Rush’s work releases, because 

there was “no additional narrative or diagnostic medical evidence” to support 

the opinion. The Plan informed Lalonde that it required an assessment by an 

Approved Physician to award WRB and that Lalonde’s WRB claim “remain[ed] 

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suspended pending receipt of Dr. Rush’s medical records and completion of the 

[IME].”

On November 16, 2010, Lalonde saw Dr. Mason. Dr. Mason noted that 

Lalonde’s MRI from June 2010 showed multiple disc herniations, and she 

reported numbness in her right leg and foot, difficulty controlling urination, 

and pain reported as seven on a scale of one to ten. He observed that Lalonde 

had difficulty standing erect and walked in flexed position. Dr. Mason 

concluded that Lalonde would likely require surgical intervention and ordered 

a follow-up MRI. He did not address Lalonde’s ability to work. The second 

MRI ultimately showed herniated discs at T12-L1, L1-L2, and L2-L3 resulting 

in moderate canal stenosis; mild chronic compression at T11; and minimal 

grade-one spondylolisthesis at L4-L5 due to facet degeneration.

On February 8, 2011, Lalonde saw Richard L. Weiner, M.D., an 

Approved Physician, for an IME. Dr. Weiner reviewed both MRIs and Dr. 

Mason’s opinion and recommendation for back surgery. Dr. Weiner also 

conducted a neurological examination on Lalonde. He opined that Lalonde had 

multilevel degenerative lumbar disc disease, a large left paracentral T12-L1 

disk herniation, a broad-based disc protrusion at L1-L2, and a central disc 

protrusion at L2-L3. He believed that Lalonde did “not appear to have 

neurologic damage,” but she should undergo an examination for “possible 

neurogenic bladder” given her incontinence. He also noted that she exhibited 

symptoms related to a chronic degenerative spinal condition and that the 

effects of lifting a heavy patient may have exacerbated her condition and 

caused one or more of the disc herniations. However, he did not think that 

Lalonde had reached “maximum rehabilitative capacity” and additional testing 

was needed, such as a CT myelogram scan, in order to evaluate the instability 

in Lalonde’s lumbar spine and the relation between the instability and the 

herniated discs, spinal cord, and nerve roots. Dr. Weiner’s report did not 

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address or render any opinion regarding Lalonde’s ability to work, despite the 

Plan having sent Lalonde to him for purposes of determining eligibility for

benefits. 

Following Lalonde’s visit to Dr. Weiner, the Plan sent Lalonde’s medical 

records to William E. Blair, Jr., M.D., for review. Dr. Blair issued a report on 

March 4, 2011, opining that there was no objective evidence to support new 

physical damage from the May 22 incident and no evidence of neurological 

deficiencies. He believed that further treatment or a “workup” was not

medically necessary as a result of the May 22 incident.

On March 22, 2011, more than six weeks after the appointment with Dr. 

Weiner, the Plan authorized Dr. Weiner’s request that Lalonde receive a CT 

myelogram of her lumbar spine. The Plan scheduled an examination and 

informed Lalonde, but Lalonde refused to attend on the grounds that it was a 

risky procedure and that no doctor had discussed it with her. Lalonde’s counsel 

contacted the Plan and requested the name of the doctor who had ordered the 

CT myelogram. A month later, Lalonde spoke with Dr. Weiner’s nurse 

practitioner about the test but still ultimately refused to undergo the CT 

myelogram. 

On May 2, 2011, the Plan denied Lalonde’s claim for WRB. The letter 

explained the Plan’s basis for its decision to deny benefits as follows: 

[T]here is insufficient medical evidence from an Approved 

Physician to support your client’s [WRB] claim. The Plan will only 

pay [WRB] due to a disability that is solely and directly related to 

the work injury. With your client’s documented degenerative and 

arthritic conditions that overlay the possible work related 

component, there is lack of medical documentation from an 

Approved Provider supporting the requested period of disability.

On September 26, 2011, Lalonde appealed the decision of the Plan. The 

Appeals Committee informed Lalonde that it would require an additional IME 

before deciding her appeal. On October 24, Lalonde refused to submit to the 

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additional IME on the ground that an IME conducted in November 2011, a 

year and a half after her injury, would not be beneficial in determining whether 

she was eligible for benefits from August 12, 2010, to April 25, 2011. She 

believed that the request that she undergo an additional IME was harassment. 

Additionally, she stated that she could not afford to travel once more from 

Texarkana to Dallas. However, she agreed to attend an IME in Texarkana or 

travel to Dallas if the Plan paid her travel expenses, and if the Plan provided 

a sufficient reason for the exam. 

On November 4, 2011, the Plan stated that the IME had been canceled 

based on Lalonde’s refusal and that, because the WRB claim involved an issue 

of medical judgment, the Plan was required to consult a health care 

professional who was not consulted as part of the initial claim. The Plan thus 

submitted Lalonde’s claim to Mitchell Brooks, M.D., for a peer review. Dr. 

Brooks, an orthopedic surgeon, completed his review on November 23, 2011.

Based on the diagnostic testing, the medical records from Drs. Gabbie, Ford, 

and Weiner, as well as those from the non-Approved Physicians, Drs. Rush and 

Mason, Dr. Brooks concluded that the extent of Lalonde’s at-work injury “was, 

at most, a soft tissue sprain/strain.” He also opined that, giving Lalonde the 

“broadest benefit of the doubt,” Lalonde required no more than ten sessions of 

physical therapy, over-the-counter medications, and two follow-up 

appointments to treat her injury. Lalonde would have achieved maximum 

rehabilitative capacity at six to eight weeks after the injury, “with or without 

treatment.” According to Dr. Brooks, the injury would have required a 

maximum of one or two days off work, with some form of modified duty for six 

to eight weeks. However, other than these restrictions, Dr. Brooks stated that 

there was “no evidence that this patient was disabled due to her injury from 

any gainful employment subsequent to 5/22/10.”

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Dr. Brooks’s report also addressed the findings in the MRIs. He believed 

that the “documented objective clinical findings” did not demonstrate “the 

presence of any injury to the structure of the lumbar spine and/or the discs and 

any aggravation, enhancement or acceleration of this patient’s previously 

existing condition.” He clarified that the initial MRI of Lalonde’s lumbar spine 

did not indicate the presence of an acute injury in anatomical structures and 

that, if such injury had existed, “one would expect to have found swelling in 

the musculature and in the soft tissue surrounding the lumbar spine.”

On December 16, 2011, the Appeals Committee issued a final denial of

Lalonde’s claim. The Appeals Committee decided that WRB were not payable

because no Approved Physician had ever decided that Lalonde was temporarily

totally disabled. It also mentioned that Lalonde had refused the CT 

myelogram requested by Dr. Weiner. The Appeals Committee relied on Dr. 

Brooks’s opinion that Lalonde’s at-work injury was, at most, a soft tissue strain 

or sprain and that such injury would require no more than ten physical therapy 

sessions and one or two days off of work.

On June 11, 2012, Lalonde filed this suit under the Employee Retirement 

Income Security Act (“ERISA”), challenging the denial of her claim for WRB 

for the period from August 12, 2010, through April 25, 2011. The parties filed 

cross-motions for summary judgment, and the district court entered summary 

judgment in favor of the Plan. The district court held that there was 

substantial evidence in the record to support the Plan’s determination.

Lalonde timely appealed.

II. Standard of Review

We review de novo the district court’s conclusion that an ERISA plan 

administrator did not abuse its discretion in denying disability benefits. 

Crowell v. Shell Oil Co., 541 F.3d 295, 312 (5th Cir. 2008). Under this 

approach, we review the plan administrator’s decision from the same 

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perspective and with the same standard of review as the district court. 

Anderson v. Cytec Indus., 619 F.3d 505, 512 (5th Cir. 2010). When a benefits 

plan’s terms grant the plan administrator discretionary authority to determine 

eligibility for benefits or construe the terms of the plan, which it does here, we 

review the determination to deny benefits for abuse of discretion. Id. We will 

affirm a plan administrator’s determination to deny benefits if it is “supported 

by substantial evidence and is not arbitrary or capricious[.]” Ellis v. Liberty 

Life Assurance Co. of Boston, 394 F.3d 262, 273 (5th Cir. 2004). “Substantial 

evidence is ‘more than a scintilla, less than a preponderance, and is such 

relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion.’” Id. (quoting Deters v. Sec’y of Health, Educ. & Welfare, 789 F.2d 

1181, 1185 (5th Cir. 1986)). “The fact that the evidence is disputable will not 

invalidate the decision; the evidence need only assure that the administrator’s 

decision falls somewhere on the continuum of reasonableness—even if on the 

low end.” Porter v. Lowe’s Cos., Inc.’s Business Travel Accident Ins. Plan, 731 

F.3d 360, 363–64 (5th Cir. 2013) (internal quotation marks and footnote 

omitted).

III. Denial of Benefits

Lalonde claims that the Plan abused its discretion in denying her WRB 

based on her at-work injury. Specifically, she asserts that the Plan “ignored 

its obligations” by refusing to send Lalonde to Approved Physicians. Thus, 

Lalonde concludes that the Plan’s decision is not supported by substantial 

evidence because it “prevented any evidence from coming into existence by 

refusing to send Lalonde to a Plan Approved Physician.” In support of her 

claim that the Plan prevented her from generating a complete record, Lalonde 

points to the Plan’s denial of Dr. Gabbie’s neurosurgeon referral and 

recommendation for steroid injections. She also claims that she attempted to 

return to Dr. Gabbie in August 2010, but the Plan ignored her request. 

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Lalonde concedes that no Approved Physicians concluded that she was 

temporarily totally disabled, but she contends that the lack of evidence on this 

point is the direct result of the Plan’s behavior. Additionally, Lalonde argues 

that the Plan relied on reports from doctors who had not physically examined 

her, rendering its decision arbitrary and capricious.

Despite Lalonde’s claims that the Plan denied her access to doctors, 

inhibiting the development of a complete and accurate record, she offers no 

legal support for the proposition that the Plan has an obligation to send her to 

multiple doctors for this purpose. Additionally, the record does not support her 

claim that she was prevented from seeing Approved Physicians. First, Lalonde

received immediate medical care from Dr. Gabbie following her injury, and she 

returned for two additional follow-up visits and underwent an MRI. For more 

than a year, the Plan continued to send her to additional physicians and for

diagnostic testing. Although the Plan’s responses to her requests were less 

than prompt, the Plan did not prevent her from developing the medical record 

with evidence of her condition. There are multiple evaluations from physicians 

in the record as well diagnostic reports. 

Second, the Plan provided specific reasons for its refusal to send Lalonde 

to the neurosurgeon suggested by Dr. Gabbie and its denial of coverage for the 

cortisone injections. In a letter dated August 12, 2010, the Plan explained that, 

based on Dr. Ford’s review of Lalonde’s medical records, neither the 

neurosurgeon consultative examination nor the injections were medically 

necessary. The Plan’s decision was not a blanket denial with no support; it 

was based on the opinion of a medical professional. 

Third, Lalonde refused two opportunities to further develop the medical 

record. She refused to undergo the CT myelogram, which would have assisted 

the Plan in determining whether her herniated discs were related to her 

degenerative condition or whether they were the result of her at-work injury. 

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She also refused to attend the IME scheduled by the Appeals Committee, 

which is what prompted the Plan to send her file to Dr. Brooks for a peer 

review. Lalonde cannot claim that the Plan was thwarting her attempts to 

develop the record, but then refuse to participate in the record’s development. 

Having concluded that the Plan did not prevent Lalonde from attaining

medical evaluations and developing the record as to the extent of her medical 

impairments, we turn to Lalonde’s main claim—that the Plan’s decision was 

not supported by substantial evidence. We agree with the district court that 

there is sufficient evidence in the record to support the Plan’s determination 

that Lalonde was not temporarily totally disabled and, therefore, ineligible for 

benefits. Dr. Brooks reviewed the medical record, including the notes from 

physicians who treated Lalonde, their evaluations, and reports from diagnostic 

tests, and Dr. Brooks concluded that Lalonde had at most a soft tissue strain.3

Dr. Brooks’s opinion is also consistent with other evidence in the record, 

including the evaluations by Drs. Weiner, Ford, and Blair, and the two MRIs,

which indicated that Lalonde’s back problems were degenerative in nature. 

While only Dr. Weiner physically evaluated Lalonde, ERISA plan 

administrators may rely on a wide variety of medical evidence in making a 

decision, including evaluations from physicians who did not evaluate the 

claimant in person. Cf. Vercher v. Alexander & Alexander Inc., 379 F.3d 222, 

232 (5th Cir. 2004); see also Black & Decker Disability Plan v. Nord, 538 U.S. 

822, 831 (2003) (explaining that nothing in ERISA “suggests that plan 

administrators must accord special deference to the opinions of treating 

physicians.”). Collectively, this constitutes substantial evidence. 

3 Lalonde argues for the first time on appeal that Dr. Brooks’s evaluation should not 

serve as substantial evidence because he never physically examined her and his opinion 

conflicts with the objective medical evidence. However, we do not consider arguments raised 

for the first time on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 

1999).

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IV. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the district court. 

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