___________ No. 95-4002

___________ Don Birdsell, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. United Parcel Service of * America, Inc.; UPS Health and * Welfare Plan; Aetna Life and * Casualty Company, * * Appellees. *

___________ Submitted: June 13, 1996 Filed: August 27, 1996

___________ Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.

___________ WOLLMAN, Circuit Judge.

Donald Birdsell appeals the district court's grant of summar y judgment in favor of United Parcel Service of America, Inc., (UPS), UP S Health and Welfare Plan (the plan), and Aetna Life & Casualty Compan y (Aetna), in his actio n brought pursuant to the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq. (ERISA). We affirm.

I.

As an emp loyee of UPS, Birdsell is a participant in the plan, which is an ERI SA-covered employee welfare benefit plan. See 29 U.S.C. § 1002(1). The day-to-day operations of the plan are managed by Aetna as th e cla imadministrator; however, UPS retains the exclusive right an d discre tion to determine whether a participant is eligible for benefit s under the plan.

### -2- Birdsell began treatment for periodontal disease in 1986, at whic h time he had a number of teeth extracted and was fitted with denture plates to replace his top teeth. In June of 1991, Birdsell's oral surgeon, Dr. Bisch, determined that it would be necessary to extract Birdsell' s remaining bottom teeth. Aetna agreed to cover this procedure. The presen t controversy arose when Aetna's dental consultants and Birdsell's physician s could not agree on the appropriate prosthetic de vice with which to replace the t eeth once they were removed. Birdsell and his physicians favore d dental implants -- in essence, false teeth permanently placed in the jaw bone -- contending th at Birdsell's remaining jaw bone was insufficient to supp ort conventional dentures. Conversely, Aetna's dental consultant s recommended such dentures.

Fol lowing Dr. Bisch's initial letter to Aetna recommending tha t Birdse ll be approved for dental implants, a barrage of correspondenc e ensued. Aetna's lett ers included several requests for X-rays and for any additional information necessary to make a proper benefit determination. Dr. Bisch enclosed the requested X-rays with his letters and, according to his testimony, provided all of the facts necessary to determine the medica l necessity of the implants.
Birdsell's dentist, Dr. Smith, also wrote to Aetna, offering hi s view that providing Birdsell with conventional dentures would be clinicall y unacceptable because of "minimal bone remaining" in part of Birdsell's jaw

. Each t ime Aetna was provided with new information, it re-evaluate d Birdsell's request and then denied coverage.

In making its determination to deny benefits, Aetna obtained th e opinions of three dental consultants -- two dent ists and one oral surgeon. Each of these physicians came to the conclusion that the implants were not medica llynecessary and that the use of conventional dentures wa s appropriate. Aetna's letters informed

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Birdsell of these conclusions, stating specifically that "it appears the pat ient has sufficient bone present to hold conventional denture s properly[.] Therefore, implants do not appear medically necessary . . ."

De spite these consistent denials, Birdsell decided to proceed wit h the implants. In January 1993, Birdsell had his teeth extracted and was fitted for a temporary denture pending placement of dental implants

. Ther eafter, Birdsell, Smith, and an administrative supervisor with UP S wrote to A etna requesting review of Birdsell's claim. In his letter , Birdsell explained that he had tried conventional dentures but that they caused him constant p ain, that he was unable to eat solid foods, and that he felt restricted to eating his meals in private. Aetna again reviewed Birdsell's claim and again denied coverage, this time informing Birdsell of his right to appeal the decision to UPS, the plan administrator.

On December 29, 1993, Birdsell had the implant procedure performe d with out obtaining a commitment for coverage from Aetna. Aetna agai n revi ewed Birdsell's file, and on January 20, 1994, wrote to Birdsel l advising him that it was adhering to its previous determination.

On March 17, 1994, Birdsell's attorney wrote to the pla n admini strator for UPS requesting that she be provided with numerou s docu ments relating to the denial of dental implants. UPS responded , informing counsel that it had treated the March 17 letter as a request for appeal and that the appeals committee had conducted a thorough review of the in formation available, which included letters from Dr. Bisch, Dr

. Smith , and Birdsell, as well as Aetna's response letters. UPS furthe r stated that the committee did not find sufficient evidence to overrid e Aetna's decision. In addition, UPS enclosed some of the requeste d documents and stated that others would be provid ed upon payment of copying charges and that the remainder of requested documents either were not

### In his deposition, Birdsell acknowledged that, as an employee 1 

### of UP S earning over $19.00 per hour, he could have afforded th e $27.50 charge had he needed the copies.

We reject Birdsell's argument that the record does no t 2 

### support a finding of discretionary authority to determine be nefits. The Summary Plan Description provides: United Parcel Service shall ha ve the exclusive right and discretion to interpret the te rms and conditions of the plan , and to decide all matter arising in it s administration and operation, including question s pertaining to eligibility for, and the amount of benefit s to be paid by the plan . . . . Thus, UPS's discretionary authority is apparent. -4- applicable to or had not been issued with respect to the plan. Birdsell refused to pay the $27.50 necessary to obtain the copies, claiming tha t such charges were excessive. 1

Bi rdsell then filed this action, claiming that defendants breache d their fiduciary duties under ERISA by failing to authorize payment for his dental implants and by failing to provide timely and proper information an d docume ntation concerning their reasons for denying these benefits. H e requ ested review of the decision to deny his claim, equitable relie f (inclu ding the removal of the fiduciaries), and statutory damages fo r failure to provide documents and information under ERISA.

II.

Because t he plan gave UPS the exclusive right and discretion t o determine eligibility of benefits, the district court reviewed the decisio n to de ny benefits for abuse of discretion. Maune v. Internationa l Brotherhood of Electrical Workers , 83 F.3d 959, 962 (8th Cir. 1996). We revie w the district court's determination de novo. Id. We will uphol d 2 the decision to deny benefits if we find it to be reasonable -- that is, if it is supported by a

### -5-

reaso ned explanation, even if another reasonable, but different , interpr etation may be made. Donaho v. FMC Corp. , 74 F.3d 894, 899 (8t h Cir. 1996).

In it s description of the plan's coverage of dental expenses, th e Summary Plan Description states:

Your dental plan provides protection against most denta l exp enses. But, as you might expect, some services an d treatments are not covered . . . No benefits are payable for

. . . dental implants (unless specifically approved i n advance).

The plan further esta blishes two criteria that the desired treatment must sat isfyto qualify for benefits: 1) the desired procedure must b e
necess aryand customarily employed nationwide for the treatment of th e dental condition; and 2) the treatment must be appropriate and mee t professionally recognized standards of quality.

We find the conclusion that the dental implants were not medicall y necessary to be reasonable. Aetna sought and ob tained the opinions of two dent ists and one oral surgeon, all of whom agreed that the requeste d implants were not med ically necessary. Birdsell's physicians' opinion to the contrary does not render the decision unreasonable. See Bolling v. El i Lilly & Co. , 990 F.2d 1028, 1029-30 (8th Cir. 1993) (decision no t
unreas onable simply because it adopts one of two competing medica l opinions).

Birds ell argues that defendants failed to conduct a full and fai r review of his claim. This contention appears to be based on thre e perceived deficiencies in the review of his clai m: 1) defendants' failure to con duct an independent clinical analysis of Birdsell; 2) defendants ' allege d failure to obtain Birdsell's full medical records; and 3 ) defendants' alleged f ailure to adequately explain to Birdsell the reasons for the denial of benefits. We

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find each of these allegations to be without merit.

This is n ot a case where a clinical evaluation of the patient wa s
necess aryto make the proper benefits determination. Birdsell's ora l surgeon acknowledged that he provided Aetna with all of the requisit e information to determine whether the implants were medically necessary

. After v iewing the X-rays and related information, Aetna's consultant s simply reached a conclusion different from that reached by Birdsell' s phys icians regarding whether Birdsell's bone was sufficient to suppor t dentures. Birdsell has given us no reason to be lieve that the consultants would have agreed with his physicians had they examined Birdsell in person

. On several occasions Aetna requested that Birdsell submit any f urther releva nt information. Birdsell, however, failed to bring to Aetna' s attention the information that he now claims was crucial to Aetna' s decision. Birdsell's failure to offer additional information, coupled wit h Dr. Bisch's statement that he had provided Aetna with all of the necessary information, precludes Birdsell from now claiming that Aetna's decision wa s based on insufficient information. See Davidsonv. Prudential Ins. Co. of Am. , 953 F.2d 1093, 1095 (8th Cir. 1992).

We furthe r conclude that Birdsell received a sufficient explanation regarding the denial of benefits. Aetna explained to Birdsell tha t coverage was being denied because three dental consultants had concluded that t he implants were not medically necessary and that conventiona l dentures were a workable alternative. This evaluation by Aetna and th e subsequen t review by UPS is more than sufficient to satisfy us tha t Birdsell o btained a full and fair review of his claims. See Wald v

. Southwestern Bell Corp. , 83 F.3d 1002, 1007 (8th Cir. 1996).

### -7- III.

Birdsell makes various allegations regarding defendants' allege d failure to comply with his request for documents. ERISA section 1132(c) provid es that an ERISA administrator who fails to provide requeste d information within thirty days may be personally liable for up to $100 per day. After a review of the record and of the district court's meticulous descr iption of all of the documents requested and provided, we find n o merit in this claim.

IV.

We also decline Birdsell's invitation to remove the trustees as ERISA fiduciaries. The rem oval of ERISA fiduciaries is warranted only when the fiduciaries have "engaged in repeated or substantial violations of their responsibility." Holcomb v. United Automotive A ssoc. of St. Louis , 658 F. Sup p. 84, 86-87 (E.D. Mo. 1987), aff'd , 852 F.2d 330 (8th Cir. 1988) ; Katsaros v. Cody , 744 F.2d 270, 281 (2d Cir.), c ert. denied , 469 U.S. 1072 (1984). We have found no violations of fiduciary responsibility, much les s repeated or substantial ones.
The judgment is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.