[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-11079

Non-Argument Calendar

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D.C. Docket No. 1:17-cv-03680-TCB

SHARON PIERCE, 

 Plaintiff - Appellant,

versus

WYNDHAM WORLDWIDE OPERATIONS,

INC.,

 Defendant,

CIGNA HEALTH AND LIFE INSURANCE 

COMPANY, 

 Defendant - Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(October 24, 2019)
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Before WILSON, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM: 

Sharon Pierce was covered by an Employee Retirement Income Security Act 

(ERISA) healthcare plan (the Plan) provided by her former employer, Wyndham 

Worldwide Operations, Inc. Cigna Health and Life Insurance Company

administered the Plan. Pierce sought coverage under the Plan for a two-level 

spinal fusion surgery to treat her multilevel lumbar degenerative disc disease. 

Cigna denied Pierce’s claim, concluding that the surgery was “experimental, 

investigational or unproven” and thus not covered by the Plan. Pierce sued, and 

the district court granted summary judgment for Cigna.1

 Pierce now appeals, 

arguing that Cigna’s decision was improper under a deferential arbitrary and 

capricious standard. We disagree and affirm. 

I. Background

A. The Plan

The Plan covered medically necessary services but excluded coverage for 

expenses “for or in connection with experimental, investigational or unproven 

services.” The Plan defined those terms to mean procedures “that are determined 

1 Pierce also sued her former employer, Wyndham Worldwide Operations, Inc., for both 

wrongful denial of benefits under ERISA § 1132(a)(1)(B) and breach of fiduciary duty under 29 

U.S.C. § 1132(a)(3). The district court dismissed Wyndham as a party. Pierce did not appeal 

that decision and Wyndham is not a party to this appeal.
3

by the utilization Physician to be . . . not demonstrated, through existing peerreviewed, evidence-based, scientific literature to be safe and effective” for treating 

the condition. 

B. Pierce’s Claim for Coverage

Dr. Max Stuer, a neurosurgeon, diagnosed Pierce with multilevel lumbar 

degenerative disc disease in early 2015. Dr. Stuer told Pierce, and later Cigna, that 

Pierce might need a two-level spinal fusion if she did not improve after injections. 

Cigna informed Pierce that Dr. Stuer was no longer part of its network, Pierce saw 

Dr. Arun Jacob, another neurosurgeon. Dr. Jacob also recommended a two-level 

spinal fusion, noting that it would give Pierce “a reasonable chance of recovery 

back to her baseline.” Dr. Jacob requested prior authorization from Cigna to 

perform the surgery, which Cigna denied. 

Two Cigna physicians reviewed the claim. The first, Dr. Greg Przybylski, 

concluded that, under the Plan’s exclusion for experimental, investigational or 

unproven services, “coverage cannot be approved because there is not enough 

scientific evidence that shows the safety and/or effectiveness of lumbar fusion for 

the management of multiple-level degenerative disc disease.” Dr. Przybylski 

referred to Cigna’s Medical Coverage Policy on lumbar surgery (the Coverage 

Policy). The Coverage Policy states that “Cigna does not cover ANY of the 

following because each is considered experimental, investigational or unproven: 
4

lumbar fusion for treatment of multiple-level (i.e., >1 level) degenerative disc 

disease . . . .” The Coverage Policy then refers to and explains the medical 

literature that supports that conclusion.2

Dr. Jacob appealed the denial of prior authorization. He compiled an appeal 

record, which contained medical records that confirmed Pierce’s multilevel 

degenerative disc disease. Dr. David E. Mino, Cigna’s National Medical Director 

of Orthopaedic Surgery and Spinal Disorders, reviewed the materials and upheld

the denial of benefits.

C. Procedural History

Pierce sued Cigna for wrongful denial of benefits under ERISA § 1132, 

which allows a plan participant to bring a civil action “to recover benefits due to 

him under the terms of the plan, to enforce his rights under the terms of the plan, or 

2 The main takeaways from the literature review in the Coverage Policy are: 

• “The general consensus in the medical literature is that the addition of multiple levels 

increases the complexity of the surgery and risks compared to single-level fusion. It has 

been reported in the literature that rate of nonunion (pseudoarthrosis) increases with 

multilevel fusions. Lumbar fusion of more than two segments (single level), is not 

typically recommended, particularly for degenerative disease, and is unlikely to reduce 

pain, as it removes normal motion in the lower back and may cause strain on other 

remaining joints. Added stress on nearby vertebrae can accelerate the degenerative 

process.”

• “Determining if a disc is the primary source of pain is challenging and treatment, 

particularly surgical, is considered controversial for this indication [degenerative disc 

disease].”

• “Evidence supporting lumbar fusion however, as a method of treatment for DDD

[(degenerative disc disease)] is limited, and few well-designed clinical studies have 

supported arthrodesis as superior to nonoperative therapy for improving clinical 

outcomes. (Resnick, et. al., 2005).”
5

to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. 

§ 1132(a)(1)(B). Cigna filed a motion for summary judgment, which the district 

court granted, concluding that Cigna’s denial of benefits was not arbitrary or 

capricious. Pierce appealed.

II. Discussion

We review a district court’s grant of summary judgment de novo, applying 

the same legal standards as the district court. Doyle v. Liberty Life Assurance Co. 

of Bos., 542 F.3d 1352, 1358 (11th Cir. 2008). 

A. Deference to ERISA Plan Administrator’s Coverage Decision

ERISA does not tell courts how to interpret ERISA plans, but federal courts 

“have the authority to develop a body of federal common law” to govern their 

interpretation and enforcement. Tippitt v. Reliance Standard Life Ins. Co., 457 

F.3d 1227, 1234–35 (11th Cir. 2006). Courts review the coverage decision of a 

plan administrator de novo “unless the benefit plan gives the administrator or 

fiduciary discretionary authority to determine eligibility for benefits or to construe 

the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 

(1989). 

In Blankenship v. Metro Life Ins. Co., we outlined a six-part test for 

determining the appropriate standard of review under Firestone: 
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(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.

644 F.3d 1350, 1355 (11th Cir. 2011). Under the first three steps, even when the 

administrator’s decision was de novo wrong, we apply a deferential arbitrary and 

capricious standard if the plan vests the administrator with discretion to review 

claims.3

 Id. In reviewing a plan administrator’s medical necessity determination, 

3 We need not decide whether Cigna’s decision was de novo wrong. Instead, consistent with our 

precedent, we may assume the decision was de novo wrong in order to reach the discretion 

question. See, e.g., Doyle v. Liberty Life Assurance Co. of Bos., 542 F.3d 1352, 1357 (11th Cir. 

2008) (on review of summary judgment, skipping straight to step two and determining whether 

the administrator had discretion to review benefit claims under the plan); see also Wulf v. 

Quantum Chem. Corp., 26 F.3d 1368, 1373 (6th Cir. 1994) (“Discretion is the exception, not the 
7

we only consider the material available to the administrator at the time it made its 

decision. See id. at 1354. 

The first question, then, is whether the ERISA Plan vested the plan 

administrator with discretion to make coverage decisions. This grant of discretion 

must be apparent from the text of the Plan. See Kirwan v. Marriot Corp., 10 F.3d 

784, 788 (11th Cir. 1994) (“This circuit has interpreted [Firestone Tire] to mandate 

de novo review unless the plan expressly provides the administrator discretionary 

authority to make eligibility determinations or to construe the plan’s terms.”). The 

parties agree that the Plan expressly grants Cigna the discretion to make medical 

necessity determinations.

4

 The arbitrary and capricious standard is therefore 

appropriate. Blankenship, 644 F.3d at 1355.

B. Reasonableness of Cigna’s Coverage Decision

The Plan excluded coverage for expenses “for or in connection with 

experimental, investigational or unproven services.” The Plan defined those terms 

to mean procedures “that are determined by the utilization Physician to be . . . not 

demonstrated, through existing peer-reviewed, evidence-based, scientific literature 

to be safe and effective” for treating the condition. Through its Coverage Policy, 

rule and . . . the arbitrary and capricious standard does not apply unless there is a clear grant of 

discretion to determine benefits or interpret the plan.”). 

4 The Plan provided that “[t]he Plan Administrator [Wyndam] delegates to Cigna discretionary 

authority to interpret and apply plan terms and to make factual determinations in connection with 

its review of claims under the plan.”
8

Cigna interpreted the Plan’s “experimental, investigational or unproven” language 

and accompanying definition to exclude coverage for Pierce’s two-level spinal 

fusion surgery. 

That decision is not arbitrary and capricious if “reasonable” grounds 

supported it. Id. at 1355. “Plan administrators need not accord extra respect to the 

opinions of a claimant’s treating physicians.” Id. at 1356. And administrators 

“may give different weight to [certain doctors’] opinions without acting arbitrarily 

and capriciously.” Id. As long as there is a reasonable basis in the record for 

Cigna’s decision, it “must be upheld as not being arbitrary and capricious, even if 

there is evidence that would support a contrary conclusion.” White v. Coca-Cola 

Co., 542 F.3d 848, 856 (11th Cir. 2008). 

Pierce argues that the “experimental, investigational or unproven” language 

is ambiguous, citing our decision in Dahl-Eimers v. Mutual of Omaha Life Ins. 

Co., 986 F.2d 1379 (11th Cir. 1993). In Dahl-Eimers, a non-ERISA case, we held 

that the term “considered experimental” was ambiguous because “[t]he insurance 

policy does not clearly specify who will determine whether a treatment is 

considered experimental or how that determination will be made.” 986 F.2d at 

1384. Dahl-Eimers does not help Pierce for two reasons. First, the Plan here 

expressly defined the “experimental, investigational or unproven” term and 

specified who would make the determination. The Plan, therefore, cures the 
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precise defect that created the ambiguity in Dahl-Eimers. Pierce does not argue 

how the term, as defined in the Plan, is ambiguous. Second, even if that term was 

ambiguous, under the arbitrary and capricious standard, Cigna need only have 

reasonably interpreted it. See Tippitt, 457 F.3d at 1232 (“If [the administrator’s 

interpretation] is reasonable, then the interpretation is entitled to deference even 

though the claimant’s interpretation is also reasonable . . . .” (internal quotation 

marks omitted)). 

In White v. Coca-Cola Co., we held that an ERISA plan administrator 

reasonably interpreted a plan term when the administrator’s interpretation was 

“consistent with the summary plan description, the past practices of [the 

employer], and the other provisions of the plan.” 542 F.3d at 857. The summary 

plan description also “clearly explain[ed]” the administrator’s interpretation. Id. 

Cigna reasonably concluded that a two-level spinal fusion surgery falls 

under the “experimental, investigational or unproven” exclusion in the Plan. 

Under the definition in the Coverage Policy, Cigna had a reasonable basis for 

concluding that the procedure was “not demonstrated, through existing peerreviewed, evidence-based, scientific literature to be safe and effective” for Pierce’s 

degenerative disc disease. Cigna’s Coverage Policy clearly explains the 

evidentiary basis for that determination. The Coverage Policy cites and details 

multiple peer-reviewed, evidence-based, scientific articles. See supra note 1. This 
10

Coverage Policy was not created for Pierce. It was instead existing and uniformly 

applied.5

 

Pierce does not identify a single article to counter Cigna’s position.

6

 Pierce 

instead argues that because her physicians considered the procedure medically 

necessary, Cigna’s interpretation was unreasonable. Pierce’s argument is 

unconvincing. First, the opinions of Pierce’s physicians only established that she 

had degenerative disc disease. Those opinions are not “existing peer-reviewed, 

evidence-based, scientific literature.” And they are also not evidence that the twolevel spinal fusion was not “experimental, investigational or unproven.” Although

Cigna reviewed those medical records as part of its determination, Cigna was not 

required to use Pierce’s physicians’ opinions to determine whether the surgery was 

“experimental, investigational or unproven.” Second, even if Pierce’s physicians 

opined that the procedure was not experimental, Cigna “need not accord extra 

5 To rebut this contention, Pierce cites Dubaich v. Conn. Gen. Life Ins. Co., No. CV 11-10570 

DMG, 2013 WL 3946108 (C.D. Cal. July 31, 2013). In Dubaich, Cigna took the position that 

spinal fusion was the “standard surgical treatment” for the participant’s two-level degenerative 

disc disease. 2013 WL 3946108 at *3. The participant in Dubaich provided evidence that the 

surgery she sought—an artificial disc replacement—was non-experimental. Id. The district 

court correctly concluded that Dubaich is not evidence that Cigna inconsistently applied its 

Coverage Policy. First, Cigna’s Plan and Coverage Policy cover spinal fusion in some scenarios, 

but they do not exist in this case. And it is unclear that the Coverage Policy at issue in Dubaich

and the one at issue here are even the same. Pierce relies on language in Dubaich that discusses 

degenerative disc disease and spinal fusion generally. Second, the court in Dubaich reviewed the 

participant’s claim de novo because there was no evidence that Cigna had discretionary 

authority. Id. at *8–9. Dubaich thus does not show that Cigna inconsistently applied the

Coverage Policy in effect at the time it denied Pierce’s claim. 

6 She only asserts, without citation, that “multi-level lumbar spinal fusion procedures were 

routinely accepted in the relevant medical community in 2015–2016.”
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respect to the opinions of a claimant’s treating physicians.” Blankenship, 644 F.3d

at 1356. Third, if we accepted Pierce’s argument, we would be reading out the 

“experimental, investigational or unproven” exclusion from the Plan entirely. 

Cigna would be required to cover every medically necessary procedure, even those 

that are expressly excluded under the “experimental, investigational or unproven” 

exclusion in the Plan. 

Pierce has not identified any record evidence that the two-level spinal fusion 

surgery was “demonstrated, through existing peer-reviewed, evidence-based, 

scientific literature to be safe and effective” for degenerative disc disease. Cigna 

had a reasonable basis for concluding otherwise. See White, 542 F.3d at 857.

C. Conflict of Interest

Because we conclude that Cigna’s decision was supported by a reasonable 

basis in the record, the next task is to determine whether Cigna operated under a 

conflict of interest. Blankenship, 644 F.3d at 1355. A conflict of interest exists 

when the same entity both evaluates claims and pays benefits. See Metro. Life Ins. 

Co. v. Glenn, 554 U.S. 105, 112 (2008). Pierce argues that Cigna acted under a 

conflict of interest because Cigna, as Wyndham’s claims administrator, “had a 

financial interest in pleasing Wyndham.” This financial relationship is too remote 

to establish a conflict of interest. See Gilley v. Monsanto Co., Inc., 490 F.3d 848, 

857 (11th Cir. 2007) (“Our circuit law is clear that no conflict of interest exists 
12

where . . . the provider incurs no immediate expense as a result of paying 

benefits.”). The benefits here were self-funded by Wyndham and were not paid 

from the funds of Cigna. Cigna and Wyndham are separate entities. This case thus 

lacks the structural conflict of interest articulated in Glenn. 

There is no conflict of interest, which ends our inquiry. See Blankenship, 

644 F.3d at 1355 (“If there is no conflict, then end the inquiry and affirm the 

decision.”).

III. Conclusion

Cigna had a reasonable basis for denying Pierce’s claim for coverage. We 

therefore affirm.

AFFIRMED.