___________

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 summary

judgment in favor of United Parcel Service of America, Inc., (UPS), UPS

Health and Welfare Plan (the plan), and Aetna Life & Casualty Company

(Aetna), in his action brought pursuant to the Employee Retirement Income

Security Act, 29 U.S.C. §§ 1001 et seq. (ERISA). We affirm.

I.

 

As an employee of UPS, Birdsell is a participant in the plan, which

is an ERISA-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 the

claim administrator; however, UPS retains the exclusive right and

discretion to determine whether a participant is eligible for benefits

under the plan. 
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Birdsell began treatment for periodontal disease in 1986, at which

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 present

controversy arose when Aetna's dental consultants and Birdsell's physicians

could not agree on the appropriate prosthetic device with which to replace

the teeth once they were removed. Birdsell and his physicians favored

dental implants -- in essence, false teeth permanently placed in the jaw

bone -- contending that Birdsell's remaining jaw bone was insufficient to

support conventional dentures. Conversely, Aetna's dental consultants

recommended such dentures.

Following Dr. Bisch's initial letter to Aetna recommending that

Birdsell be approved for dental implants, a barrage of correspondence

ensued. Aetna's letters 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 medical

necessity of the implants. 

Birdsell's dentist, Dr. Smith, also wrote to Aetna, offering his view

that providing Birdsell with conventional dentures would be clinically

unacceptable because of "minimal bone remaining" in part of Birdsell's jaw.

Each time Aetna was provided with new information, it re-evaluated

Birdsell's request and then denied coverage.

In making its determination to deny benefits, Aetna obtained the

opinions of three dental consultants -- two dentists and one oral surgeon.

Each of these physicians came to the conclusion that the implants were not

medically necessary and that the use of conventional dentures was

appropriate. Aetna's letters informed
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Birdsell of these conclusions, stating specifically that "it appears the

patient has sufficient bone present to hold conventional dentures

properly[.] Therefore, implants do not appear medically necessary . . ."

Despite these consistent denials, Birdsell decided to proceed with

the implants. In January 1993, Birdsell had his teeth extracted and was

fitted for a temporary denture pending placement of dental implants.

Thereafter, Birdsell, Smith, and an administrative supervisor with UPS

wrote to Aetna requesting review of Birdsell's claim. In his letter,

Birdsell explained that he had tried conventional dentures but that they

caused him constant pain, 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 performed

without obtaining a commitment for coverage from Aetna. Aetna again

reviewed Birdsell's file, and on January 20, 1994, wrote to Birdsell

advising him that it was adhering to its previous determination. 

On March 17, 1994, Birdsell's attorney wrote to the plan

administrator for UPS requesting that she be provided with numerous

documents 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 information available, which included letters from Dr. Bisch, Dr.

Smith, and Birdsell, as well as Aetna's response letters. UPS further

stated that the committee did not find sufficient evidence to override

Aetna's decision. In addition, UPS enclosed some of the requested

documents and stated that others would be provided 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 UPS earning over $19.00 per hour, he could have afforded the

$27.50 charge had he needed the copies.

 We reject Birdsell's argument that the record does not

2

support a finding of discretionary authority to determine benefits.

The Summary Plan Description provides:

United Parcel Service shall have the exclusive right and

discretion to interpret the terms and conditions of the

plan, and to decide all matter arising in its

administration and operation, including questions

pertaining to eligibility for, and the amount of benefits

to be paid by the plan . . . .

Thus, UPS's discretionary authority is apparent.

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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 that

such charges were excessive.1

Birdsell then filed this action, claiming that defendants breached

their fiduciary duties under ERISA by failing to authorize payment for his

dental implants and by failing to provide timely and proper information and

documentation concerning their reasons for denying these benefits. He

requested review of the decision to deny his claim, equitable relief

(including the removal of the fiduciaries), and statutory damages for

failure to provide documents and information under ERISA.

II.

Because the plan gave UPS the exclusive right and discretion to

determine eligibility of benefits, the district court reviewed the decision

to deny benefits for abuse of discretion. Maune v. International

Brotherhood of Electrical Workers, 83 F.3d 959, 962 (8th Cir. 1996). We

review the district court's determination de novo. Id. We will uphold

2

the decision to deny benefits if we find it to be reasonable -- that is,

if it is supported by a
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reasoned explanation, even if another reasonable, but different,

interpretation may be made. Donaho v. FMC Corp., 74 F.3d 894, 899 (8th

Cir. 1996).

In its description of the plan's coverage of dental expenses, the

Summary Plan Description states:

Your dental plan provides protection against most dental

expenses. But, as you might expect, some services and

treatments are not covered . . . No benefits are payable for

. . . dental implants (unless specifically approved in

advance).

The plan further establishes two criteria that the desired treatment must

satisfy to qualify for benefits: 1) the desired procedure must be

necessary and customarily employed nationwide for the treatment of the

dental condition; and 2) the treatment must be appropriate and meet

professionally recognized standards of quality.

We find the conclusion that the dental implants were not medically

necessary to be reasonable. Aetna sought and obtained the opinions of two

dentists and one oral surgeon, all of whom agreed that the requested

implants were not medically necessary. Birdsell's physicians' opinion to

the contrary does not render the decision unreasonable. See Bolling v. Eli

Lilly & Co., 990 F.2d 1028, 1029-30 (8th Cir. 1993) (decision not

unreasonable simply because it adopts one of two competing medical

opinions).

Birdsell argues that defendants failed to conduct a full and fair

review of his claim. This contention appears to be based on three

perceived deficiencies in the review of his claim: 1) defendants' failure

to conduct an independent clinical analysis of Birdsell; 2) defendants'

alleged failure to obtain Birdsell's full medical records; and 3)

defendants' alleged failure 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 not a case where a clinical evaluation of the patient was

necessary to make the proper benefits determination. Birdsell's oral

surgeon acknowledged that he provided Aetna with all of the requisite

information to determine whether the implants were medically necessary.

After viewing the X-rays and related information, Aetna's consultants

simply reached a conclusion different from that reached by Birdsell's

physicians regarding whether Birdsell's bone was sufficient to support

dentures. Birdsell has given us no reason to believe that the consultants

would have agreed with his physicians had they examined Birdsell in person.

 

On several occasions Aetna requested that Birdsell submit any further

relevant 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 with

Dr. Bisch's statement that he had provided Aetna with all of the necessary

information, precludes Birdsell from now claiming that Aetna's decision was

based on insufficient information. See Davidson v. Prudential Ins. Co. of

Am., 953 F.2d 1093, 1095 (8th Cir. 1992).

We further conclude that Birdsell received a sufficient explanation

regarding the denial of benefits. Aetna explained to Birdsell that

coverage was being denied because three dental consultants had concluded

that the implants were not medically necessary and that conventional

dentures were a workable alternative. This evaluation by Aetna and the

subsequent review by UPS is more than sufficient to satisfy us that

Birdsell obtained a full and fair review of his claims. See Wald v.

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

Birdsell makes various allegations regarding defendants' alleged

failure to comply with his request for documents. ERISA section 1132(c)

provides that an ERISA administrator who fails to provide requested

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

description of all of the documents requested and provided, we find no

merit in this claim. 

 

IV.

We also decline Birdsell's invitation to remove the trustees as ERISA

fiduciaries. The removal of ERISA fiduciaries is warranted only when the

fiduciaries have "engaged in repeated or substantial violations of their

responsibility." Holcomb v. United Automotive Assoc. of St. Louis, 658 F.

Supp. 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.), cert. denied, 469 U.S. 1072

(1984). We have found no violations of fiduciary responsibility, much less

repeated or substantial ones.

The judgment is affirmed.

A true copy.

Attest:

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