1

Employee Retirement Income Security Act of 1974, 29 U.S.C. §§

1001-1461.

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BECKY LEAKE, §

 §

Plaintiff, §

 § Civil Action No. 3:04-CV-2707-D

VS. §

 §

KROGER TEXAS, L.P., et al., §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

In this action to recover medical and income replacement

benefits under an ERISA1

-qualified occupational injury or disease

benefits plan, the court must decide whether plaintiff is entitled

to relief based on the Plan Administrator’s alleged violations of

ERISA and related regulations in handling her claim and whether the

Plan Administrator abused its discretion in denying benefits.

Concluding that plaintiff has failed to establish continuous ERISA

procedural violations that resulted in prejudice, and that the Plan

Administrator did not abuse its discretion, the court grants

defendants’ motion for summary judgment and dismisses this suit.

I

Plaintiff Becky Leake (“Leake”) sues defendants Kroger Texas,

L.P. (“Kroger”) and Kroger Texas Occupational Injury or Disease

Benefits Plan (the “Plan”) to recover Plan benefits that she

maintains were wrongly denied her after she suffered an on-the-job

 

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2In their brief, defendants at times refer in the plural to

the “Plan Administrators.” See, e.g., Ds. Br. 9. Moreover, there

are documents in the record that indicate the decision to uphold

Kroger’s denial of benefits was made by the “Plan Administrators,”

and suggest that the Plan Administrators met as a body to consider

Leake’s appeal. See Ds. App. 289. Because the Plan uses the

singular term “Plan Administrator,” which it defines as including

a “person or persons responsible for the administration of the Plan

benefits,” and “a committee of one or more persons to serve as the

Administrator of this Plan,” see Ds. App. 16, the court in this

memorandum opinion will refer in the singular to “Plan

Administrator.”

3

Defendants object to parts of Leake’s summary judgment

evidence. The court need not specifically address the

admissibility of this evidence because it concludes that Leake is

not entitled to relief. Accordingly, the admissibility question is

moot. 

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injury to her hands. Kroger denied Leake’s claim for Plan benefits

on the grounds that (1) she had failed to report the occupational

injury to her supervisor or to a designated Kroger representative

as soon as she was aware of it, (2) she had used the services of an

unapproved health care provider, and (3) her injury did not qualify

as an occupational injury under the Plan. Leake appealed Kroger’s

decision to the Plan Administrator,2

 who upheld the decision

denying benefits. Leake now sues Kroger and the Plan under 29

U.S.C. § 1132(a)(1)(B), and defendants move for summary judgment.3

As of July 2002, Kroger had employed Leake for approximately

20 years, including 17 years as a cashier and scanner. Under the

Plan, which is an ERISA plan, Kroger provides employees with income

replacement benefits for occupational injuries and diseases. In

March 2002 Leake requested a medical leave of absence, initially

 

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asking for 11 days, from February 28 to March 11, 2002. In

February 2003 Kroger notified Leake that her official leave had

expired and that she was on an unauthorized leave of absence.

Leake did not return to work, and Kroger terminated her employment.

During 2000 Leake began suffering episodes of painful and

debilitating swelling, tenderness, numbness, and loss of strength

in her hands. They continued until March 2002, when Leake took a

leave of absence from Kroger. In the Request for Leave of Absence

form, she checked the box for “illness” rather than an “injury.”

Ds. App. 24.

At about that time, Leake initially sought treatment for her

condition from Randall C. Perkins, D.O. (“Dr. Perkins”). He noted

in February 2003 that Leake “is known to have diabetes and changes

consistent with diabetic neuropathy” as well as “Raynaud’s

phenomena.” Ds. App. 161. Dr. Perkins did not diagnose Leake’s

condition, but he noted a “strong suspicion of a connective tissue

disease.” Id. He “felt very strongly this suggested a serious

condition called scleroderma.” Id.

On a referral from Dr. Perkins, Leake sought treatment from

Thuan Vu, M.D. (“Dr. Vu”), a rheumatology specialist, in March

2002. Dr. Vu diagnosed Leake’s condition as “[p]ositive ANA, with

arthralgia, Raynaud’s phenomenon,” “[p]ossible underlying

connective tissue disorder,” and “[p]ossible seronegative

rheumatoid.” Id. at 65. During a May 2002 follow-up visit, Dr. Vu

 

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diagnosed “Arthralgia, positive ANA with mildly elevated CPK and

Raynaud’s phenomenon,” and “[p]ossible underlying undifferentiated

connective tissue disorder and also a component of diabetic hand

syndrome.” Id. at 69.

In May 2002 Leake saw Cherie H. O’Brien, M.D. (“Dr. O’Brien”),

a neurologist, who diagnosed bilateral carpal tunnel syndrome

(“CTS”). Id. at 125. Leake then sought a surgical consultation

with Brent T. Alford, M.D. (“Dr. Alford”), a neurological surgeon.

Dr. Alford described Leake as a patient who was “currently

undergoing workup for some type of connective tissue disease,

possibly scleroderma.” Id. at 138. He noted that “[s]he has

Raynaud’s type phenomena” and that “[o]ver the past 2 to 3 years

she has had episodes of pain, numbness, and tingling out into her

first three digits of each hand.” Id. Dr. Alford’s recommendation

included the opinion that “[i]t’s unclear what component her

underlying connective tissue disease/possible scleroderma is

playing in this scenario.” Id. at 139. Although Dr. Alford noted

that Leake worked as a cashier, he did not indicate what he

believed to be the cause of her CTS.

In July 2002 Dr. Alford performed carpal tunnel release

surgery on Leake’s left hand, noting in his operative report that

Leake has “a yet to be diagnosed connective tissue disease,

possibly scleroderma.” Id. at 146. Leake reported no improvement

one week following surgery, and Dr. Alford “cautioned her that due

 

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to the uncertainty of her diagnoses,” she might not experience “the

usual progression of symptom improvement after surgery.” Id. at

287.

On September 2, 2002, after she had exhausted her paid leave

from Kroger, Leake telephoned Kroger’s Risk Management Department

and spoke with Debbie Cantu (“Cantu”). Leake explained to Cantu

that she had already undergone surgery, that her left hand was not

healing properly, that she had exhausted her 13 weeks of pay from

insurance and/or the union, and that she could not obtain an

extension. Leake also told Cantu that she had used up the hours in

her hour bank, had no medical benefits remaining, and could not

have surgery on her right hand. She informed Cantu that she now

wanted to report the injury as “work related.”

Cantu responded that Leake would need to complete an

Occupational Injury Report, which Leake did that day. Leake stated

on the Associates Report of Accident form that she had suffered an

on-the-job injury on approximately February 15, 2002. After Jim

Dickinson (“Dickinson”), the Plan Manager, obtained copies of

Leake’s medical records, he forwarded them to Melissa D. Tonn, M.D.

(“Dr. Tonn”), a board certified occupational physician. Based on

her review of the medical records, Dr. Tonn opined, in relevant

part, that “[n]one of [Leake’s] conditions, nor her presentation

with hand and arm symptoms can be reasonably assumed the result of

her work with Kroger.” Id. at 150.

 

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Kroger denied Leake’s claim for benefits on the grounds that

(1) she had failed to report the occupational injury to her

supervisor or to a designated Kroger representative as soon as she

was aware of it, (2) she had used the services of an unapproved

health care provider, and (3) her injury did not qualify as an

occupational injury under the Plan. Leake appealed Kroger’s

decision and submitted additional medical records for review. At

her attorney’s request, Kroger provided a copy of her claim file.

The Plan Administrator denied Leake’s appeal.

Through her attorney, Leake disputed this determination. She

submitted additional materials and requested that they be made part

of the administrative record. The parties met to discuss Leake’s

reasons for challenging the denial of her claim, and Kroger agreed

to reconsider her request for benefits following receipt of

additional information. The requested information included medical

records that Leake maintained indicated that her condition was work

related, an explanation of the “incident” or “injury” that

purportedly occurred on February 15, 2002, and an explanation of

when and why Leake changed her mind about whether her condition was

work related. Following an interval of several months, Leake’s

attorney submitted additional documents for the administrative

record, and Kroger forwarded the documents to Dr. Tonn for review.

The Plan Administrator did not change its decision, and this suit

followed.

 

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4

29 U.S.C. § 1133 provides:

In accordance with regulations of the

Secretary, every employee benefit plan

shall—(1) provide adequate notice in writing

to any participant or beneficiary whose claim

for benefits under the plan has been denied,

setting forth the specific reasons for such

denial, written in a manner calculated to be

understood by the participant, and (2) afford

a reasonable opportunity to any participant

whose claim for benefits has been denied for a

full and fair review by the appropriate named

fiduciary of the decision denying the claim.

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II

The court decides as a threshold matter the nature of claim

that Leake asserts in this lawsuit. 

Leake brings this action under 29 U.S.C. § 1132(a)(1)(B),

which provides that “[a] civil action may be brought——(1) by a

participant or beneficiary—— . . . to recover benefits due to him

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

of the plan, or to clarify his rights to future benefits under the

terms of the plan[.]” She alleges that Kroger denied her medical

and income benefits to which she is entitled under the Plan as a

result of various hand-related conditions. Am. Compl. ¶¶ 6-7 & 9.

She also asserts that the denial did not comply with 29 U.S.C.

§ 11334

 and the accompanying regulations. Id. at ¶ 8. And she

avers that the Plan, through Kroger, in at least three respects

acted inconsistently with its fiduciary duty to her: it applied a

definition of “Occupational Injury” that is inapplicable under the

 

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5

This ¶ 12 is the second of two that have the same number.

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Plan; in denying her claim, it relied on a physician of uncertain

credentials whose opinion reflected incorrect or selectively selfserving characterizations of Leake’s medical records; and it

ignored or dismissed for unstated reasons opinions of her medical

providers that she suffered an occupational injury. Id. at ¶ 12.

Although in their summary judgment brief defendants address

the § 1133 and 29 C.F.R. § 2560.503-1 allegations as if they formed

the basis for independent claims, see Ds. Br. 24-30, in the claim

that is asserted in her amended complaint, Leake seeks relief

solely under § 1132(a)(1)(B). She sues defendants to recover all

unpaid medical and income benefits that she says are due her under

the Plan, prejudgment interest, attorney’s fees, expenses, and

court costs. Am. Compl. ¶ 12.5

 Moreover, it is apparent from her

brief that she relies on alleged violations of § 1133 and related

regulations to demonstrate that the decision to deny her Plan

benefits cannot stand and to recover in this lawsuit the benefits

to which she contends she is entitled. Accordingly, this lawsuit

is properly viewed as one to recover unpaid benefits under

§ 1132(a)(1)(B).

 

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III

The court now turns to the merits of Leake’s lawsuit. 

A

A plan participant who is denied benefits under an ERISA plan

can sue to recover them. See 29 U.S.C. § 1132(a)(1)(B). This

court has jurisdiction to review determinations made by an ERISA

employee benefit plan. Vega v. Nat’l Life Ins. Servs., Inc., 188

F.3d 287, 295 (5th Cir. 1999) (en banc). In conducting this

review, a 

plan administrator’s factual determinations

are always reviewed for abuse of discretion;

but its construction of the meaning of plan

terms or plan benefit entitlement provisions

is reviewed de novo unless there is an express

grant of discretionary authority in that

respect, and if there is such then review of

those decisions is also for abuse of

discretion. 

Vercher v. Alexander & Alexander Inc., 379 F.3d 222, 226 (5th Cir.

2004). Under the Plan, “[t]he Administrator shall have full

discretion as to each feature of this Plan, including, but not

limited to, the payment or denial of benefits provided herein.”

Ds. App. 16. Moreover, “[t]he Administrator shall have sole and

exclusive discretion in interpreting the provisions of the Plan, in

making factual determinations related to the Plan, its benefits and

eligibility, to make equitable adjustments, and in construing any

disputed or ambiguous terms.” Id. Accordingly, review of the Plan

Administrator’s construction of the meaning of Plan terms or Plan

 

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benefit entitlement provisions is reviewed for abuse of discretion.

See, e.g., MacLachlan v. ExxonMobil Corp., 350 F.3d 472, 478 (5th

Cir. 2003) (“Where a plan administrator has been vested with the

discretionary authority to interpret a benefit plan, a district

court reviews the administrator’s interpretations only for abuse of

discretion.”). Leake acknowledges in her brief that the Plan

Administrator’s decision is reviewed for abuse of discretion. See

P. Br. 4-5.

“In reviewing a plan for abuse of discretion, the district

court first must determine whether the administrator’s

interpretation is legally correct; if it is not, the court must

decide whether the decision was an abuse of discretion.”

MacLachlan, 350 F.3d at 481 (citing Abraham v. Exxon Corp., 85 F.3d

1126, 1131 (5th Cir. 1996); Pickrom v. Belger Cartage Serv., Inc.,

57 F.3d 468, 471 (5th Cir. 1995)). If “the fiduciary’s

interpretation of the plan was legally correct, the inquiry is

over, pretermitting any need to consider whether a legally

incorrect interpretation of the fiduciary was not an abuse of

discretion.” Ellis v. Liberty Life Assurance Co. of Boston, 394

F.3d 262, 270 (5th Cir. 2004). If the Plan Administrator’s

interpretation is not legally correct, the court must still decide

whether the Plan Administrator abused its discretion. 

Regarding the plan fiduciary’s factual findings, “[t]he law

requires only that substantial evidence support a plan fiduciary’s

 

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decisions, including those to deny . . . benefits.” Id. at 273.

“Regardless of the administrator’s ultimate authority to determine

benefit eligibility, however, factual determinations made by the

administrator during the course of a benefits review will be

rejected only upon a showing of an abuse of discretion.” Meditrust

Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 213 (5th

Cir. 1999) (citing Pierre v. Conn. Gen. Life Ins. Co., 932 F.2d

1552, 1562 (5th Cir. 1991) (“When reviewing for arbitrary and

capricious actions resulting in an abuse of discretion, we affirm

an administrator’s decision if it is supported by substantial

evidence.”)). “If the plan fiduciary’s decision is supported by

substantial evidence and is not arbitrary and capricious, it must

prevail.” Ellis, 394 F.3d at 273. 

“‘[R]eview of the administrator’s decision need not be

particularly complex or technical; it need only assure that the

administrator’s decision fall somewhere on a continuum of

reasonableness——even if on the low end.’” MacLachlan, 350 F.3d at

478 (quoting Vega, 188 F.3d at 297).

B

1

When a plan “administrator’s decision is tainted by a conflict

of interest, the court employs a ‘sliding scale’ to evaluat[e]

whether there was an abuse of discretion.” Id. (citing Vega, 188

F.3d at 297). “The greater the evidence of conflict on the part of

 

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the administrator, the less deferential [the] abuse of discretion

standard will be.” Vega, 188 F.3d at 297. When the record is

sufficient to establish “a minimal basis for a conflict” of

interest, the court “review[s] the decision with ‘only a modicum

less deference than [it] otherwise would.’” Lain v. UNUM Life Ins.

Co. of Am., 279 F.3d 337, 343 (5th Cir. 2002) (quoting Vega, 188

F.3d at 301 (“On our sliding scale, therefore, we conclude that it

is appropriate to review the administrator’s decision with only a

modicum less deference than we otherwise would.”)).

2 

Leake maintains that the Plan Administrator’s decision is

entitled to less deference. She posits that Dickinson, the Plan

Manager, addressed her claim as a plan administrator and is a

Kroger employee and its Risk Management Representative. The money

to pay benefits would come from Kroger’s general assets. She

therefore maintains that, without considering any actual selfserving conduct, Kroger’s exercise of discretion is subject to

close scrutiny under the sliding scale approach. 

When the insurer and the administrator are the same entity, an

“inherent conflict of interest” exists. Robinson v. Aetna Life

Ins. Co., 443 F.3d 389, 395 (5th Cir. 2006) (citing Lain, 279 F.3d

at 343). The court will assume arguendo that because a plan

administrator is a Kroger employee and Kroger is the insurer of the

Plan, this creates the same “inherent conflict of interest” as

 

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existed in Robinson. See id. Applying the sliding scale approach,

“an administrator with such a conflict is ‘entitled to all but a

modicum’ of the deference afforded to unconflicted administrators.”

Id. The court will apply this adjusted level of deference in

evaluating the decisions of the Plan Administrator in deciding

Leake’s claim.

IV

Leake maintains that the Plan Administrator violated several

ERISA procedural requirements in denying her claim. She argues

that these violations, when combined with bad faith, require that

the court afford less deference to the Plan Administrator’s

decision.

A

As a threshold matter, the court must decide whether——and, if

so, how——the alleged violations on which Leake relies are pertinent

to the court’s review. Failure to comply with ERISA procedural

requirements generally does not give rise to a substantive damage

remedy unless the violations are continuous and amount to actual

harm. Hines v. Mass. Mut. Life Ins. Co., 43 F.3d 207, 211 (5th

Cir. 1995) (citing cases) (addressing breach of fiduciary duty

claims); see also Duncan v. Assisted Living Concepts, Inc., 2005 WL

331116, at *4 (N.D. Tex. Feb. 10, 2005) (Godbey, J.) (“Procedural

violations of ERISA do not entitle the plan beneficiary to a

substantive remedy unless the beneficiary can prove continuous

 

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629 C.F.R. § 2560.503-1(g) provides: 

The notification shall set forth, in a manner

calculated to be understood by the claimant--

(i) The specific reason or reasons for the

adverse determination; (ii) Reference to the

specific plan provisions on which the

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violations resulting in some prejudice to the beneficiary.”).

“Challenges to ERISA procedures are evaluated under the substantial

compliance standard.” Robinson, 443 F.3d at 392 (citing Lacy v.

Fulbright & Jaworski, 405 F.3d 254, 257 (5th Cir. 2005)). “This

means that ‘[t]echnical noncompliance’ with ERISA procedures ‘will

be excused’ so long as the purposes of section 1133 have been

fulfilled.” Id. at 393 (citing White v. Aetna Life Ins. Co., 210

F.3d 412, 414 (D.C. Cir. 2000)). Accordingly, to demonstrate that

she is entitled to relief, Leake must show that the Plan

Administrator violated ERISA under the substantial compliance

standard and that the violations were continuous and prejudicial.

B

Leake complains that the Plan Administrator failed to give her

adequate notice of the grounds for denying her benefits claim. She

relies on the ERISA requirement that every employee benefit plan

“provide adequate notice in writing to any participant or

beneficiary whose claim for benefits under the plan has been

denied, setting forth the specific reasons for such denial, written

in a manner calculated to be understood by the participant.” 29

U.S.C. § 1133(1); 29 C.F.R. § 2560.503-1(g) (2005).6 Leake posits

 

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determination is based; (iii) A description of

any additional material or information

necessary for the claimant to perfect the

claim and an explanation of why such material

or information is necessary; (iv) A

description of the plan’s review procedures

and the time limits applicable to such

procedures, including a statement of the

claimant’s right to bring a civil action under

section 502(a) of the Act following an adverse

benefit determination on review . . . .

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that the Plan Administrator’s failure, apart from citing the Plan

provisions, to state the reasons for denying her benefits claim

violated § 1133(1) and the relevant regulations.

A court will excuse a failure to comply with the technical

requirements of § 1133(1) and related regulations if the purposes

of § 1133(1) are fulfilled. Robinson, 443 F.3d at 393. The

purposes of the § 1133 notice provision are to ensure that a

claimant understands the reasons her claim was denied and

comprehends her right to review of the decision. Kent v. United of

Omaha Life Ins., 96 F.3d 803, 807 (6th Cir. 1996). To ensure that

the claimant understands the reasons for the claim decision, a plan

administrator must articulate the specific reasons for denying the

claim, but it need not explain to the claimant “the reasoning

behind the reasons.” Militello v. Central States, Se. & Sw. Areas

Pension Fund, 360 F.3d 681, 689 (7th Cir. 2004)(quoting Gallo v.

Amoco Corp., 102 F.3d 918, 923 (7th Cir. 1996)); see also Gallo,

102 F.3d at 923 (“All [the plan administrator] has to give the

 

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applicant is the reason for the denial of benefits; he does not

have to explain to him why it is a good reason.”).

The Plan Administrator’s initial letter denying Leake’s claim

was cursory in its explanation of the reasons for denying benefits.

Without elaboration, it cited the relevant Plan provisions that she

allegedly violated. The Plan provisions themselves explain in some

detail, however, the rationale for denying a claim. Specifically,

the Plan states that certain disqualifying conduct will result in

the denial of benefits, and it specifies in plain English the

various types of “disqualifying conduct.” P. App. 5. The Plan

Administrator promptly sent the denial letter to Leake and advised

her how to appeal the decision.

Even if the court were to conclude, however, that the initial

denial letter did not comply with the § 1133 notice provision, the

series of communications between Leake’s attorney and the Plan

Administrator clearly apprised Leake of the reasons her claim was

being denied. “[W]hen claim communications as a whole are

sufficient to fulfill the purposes of Section 1133 the claim

decision will be upheld even if a particular communication does not

meet those requirements.” Kent, 96 F.3d at 807; see also Lacy, 405

F.3d at 257 (“substantial rather than strict compliance with ERISA

§ 1133 and DOL Regulation § 2560.503-1(f) is all that the law

 

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7The text of the DOL Regulation referred to in Lacy was

amended and can now be found in § 2560.503-1(g). See 65 Fed. Reg.

70,246 (Nov. 21, 2000) (revising 29 C.F.R. § 2560.503-1). 

- 17 -

requires.”).7 Here, the Plan Administrator sent the initial denial

letter in October 2002. In May 2003 it sent a letter denying

Leake’s appeal, setting forth in detail the specific Plan

provisions on which the decision was based and the specific factual

reasons for each ground. This letter unquestionably complies with

§ 1133(1) and the relevant regulations. Viewed together, the two

letters are sufficient to satisfy the purposes of § 1133(1). 

The court does not suggest, of course, that a cursory initial

denial letter followed by a more detailed letter denying a

claimant’s appeal will always be sufficient to satisfy the notice

provision of § 1133. But the two letters in this case are

sufficient because the Plan Administrator afforded Leake further

review after it sent the letter denying her appeal. Also, Leake’s

arguments in support of her appeal, and her arguments made

thereafter, are substantially similar, suggesting that the more

detailed letter denying her appeal did not apprise her of any new

facts of which she was not already aware. Accordingly, the court

concludes that the Plan Administrator substantially complied with

ERISA’s notice provisions.

Assuming arguendo that the Plan Administrator’s denial failed

to comply substantially with § 1133(1), the violation would not

 

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829 C.F.R. § 2560.503-1(m)(8):

A document, record, or other information shall

be considered ‘relevant’ to a claimant’s claim

if such document, record, or other

information. (i) Was relied upon in making the

benefit determination; (ii) Was submitted,

considered, or generated in the course of

making the benefit determination, without

regard to whether such document, record, or

other information was relied upon in making

the benefit determination; (iii) Demonstrates

compliance with the administrative processes

and safeguards required pursuant to paragraph

(b)(5) of this section in making the benefit

determination; or (iv) In the case of a group

health plan or a plan providing disability

benefits, constitutes a statement of policy or

guidance with respect to the plan concerning

the denied treatment option or benefit for the

claimant’s diagnosis, without regard to

whether such advice or statement was relied

upon in making the benefit determination.

- 18 -

entitle Leake to relief, because she has not shown prejudice

resulting from the alleged inadequate notice of the reasons her

claim was denied. 

C

Leake also argues that she was not supplied certain documents

to which she was entitled under 29 C.F.R. § 2560.503-1(h)(2)(iii)

(2005). This regulation provides that for full and fair review, a

claimant must be “provided, upon request and free of charge,

reasonable access to, and copies of, all documents, records, and

other information relevant to the claimant's claim for benefits.”8

Id. The information that Leake requested and was allegedly denied

 

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consisted of (1) the medical records in her claim file, (2) the

medical records that the physician consultant reviewed, (3) the

medical literature on which the physician consultant relied, and

(4) information as to potential conflicts of interest involving the

Plan’s physician consultant.

After filing the appeal, Leake’s attorney requested a copy of

Leake’s claim file. In response, the Plan Administrator provided

the file, excluding the duplicate medical information that Leake

had sent Kroger. The Plan Administrator thus substantially

complied with 29 C.F.R. § 2560.503-1(m)(8). As noted above,

“‘[t]echnical noncompliance’ with ERISA procedures ‘will be

excused’ so long as the purposes of section 1133 have been

fulfilled.” Robinson, 443 F.3d at 393 (citing White, 210 F.3d at

414). Because Leake already had copies of her medical records, the

Plan Administrator’s failure to provide her duplicates did not

violate ERISA under the substantial compliance standard. 

In a separate letter dated May 5, 2003, Leake’s attorney

requested directly from Dr. Tonn copies of the doctor’s resume and

of any documents she reviewed in connection with the review of

Leake’s claim. Dr. Tonn failed to comply with this request. But

this failure does not lead to the conclusion that the Plan

Administrator failed to comply substantially with the requirements

of 29 C.F.R. § 2560.503-1(m)(8). And assuming arguendo that Dr.

Tonn’s failure to respond can be attributed to Kroger, her

 

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technical noncompliance did not undermine the purposes of

§ 1133(2). Consequently, the court concludes that Kroger

substantially complied with ERISA in this respect. 

Section 1133(2) and the accompanying regulations are intended

to ensure a full and fair review of the denial of a benefits. See

29 U.S.C. § 1133(2) (“[E]very employee benefit plan shall . . .

afford a reasonable opportunity to any participant whose claim for

benefits has been denied for a full and fair review by the

appropriate named fiduciary of the decision denying the claim.”)

Leake contends she was denied access to certain documents, but she

has not presented evidence that supports the conclusion that her

right to a full and fair review was affected by the denial. 

First, Leake did not request the documents allegedly denied

her until after she had already filed her appeal. She cannot

plausibly contend that she was prevented from obtaining a full and

fair review due to the denial of access to documents when she did

not request copies before she appealed. 

Second, Leake had several opportunities to obtain full review

of her claim. She was able to appeal the initial denial of

benefits. When the decision was upheld, the Plan Administrator met

personally with her attorney to discuss the denial. At this

meeting, the Plan Administrator agreed to consider again her claim

and explained to her attorney exactly what additional information

would be necessary to assist in the determination. None of these

 

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facts suggests that Leake was denied the opportunity for a full and

fair review of her claim.

Third, Leake does not contend that she was denied the

opportunity for a full and fair review under § 1133(2). She points

instead to Kroger’s failure to comply with the technical

requirements of 29 C.F.R. § 2560.503-1(m)(8) as evidence of bad

faith and an abuse of discretion. But minor violations of the

technical requirements of the regulation may not even violate ERISA

when, as here, there has been substantial compliance. See

Robinson, 443 F.3d at 393. And Leake adduces no evidence that

would permit a finding that there was a continuous violation that

amounted to substantive harm. See Hines, 43 F.3d at 211. She has

not produced evidence that would permit a finding of prejudice or

harm resulting from Kroger’s failure to supply her with the

documents she requested from Dr. Tonn. 

D

Leake also asserts throughout her brief that the Plan

Administrator failed to consider certain evidence contained in her

claim file and submitted in connection with her appeal. She

maintains that the Plan Administrator ignored evidence that Leake

discovered her CTS in July 2002, and that it disregarded evidence

that her supervisor mishandled the reporting of her medical

problems. Leake posits that this failure to consider evidence

violates § 1133(2) and 29 C.F.R. § 2560.503-1(h)(2)(iv). Under

 

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§ 2560.503-1(h)(2)(iv), a plan administrator must “[p]rovide for a

review that takes into account all comments, documents, records,

and other information submitted by the claimant relating to the

claim, without regard to whether such information was submitted or

considered in the initial benefit determination.” Id.

In deciding a claim, a plan administrator is not obligated to

rebut specifically all evidence that the claimant offers. As

explained above, a plan administrator is only required to state the

specific reasons for denying the claim. Kent, 96 F.3d at 807;

Militello, 360 F.3d at 689. The Plan Administrator met this

disclosure obligation in its June 9, 2003 letter, and it was under

no obligation to answer and specifically rebut each piece of

evidence that Leake offered. Other than the Plan Administrator’s

failure to rebut specifically Leake’s evidence, Leake can point to

no fact that would permit the court to find that the Plan

Administrator refused to consider any of her evidence. 

E

Leake also contends that the Plan Administrator breached its

fiduciary duty to her by engaging in inequitable conduct. She

argues that when she reported her occupational injury to her

supervisor, she was not given facts about properly filing a claim

or obtaining approval for her medical providers. Leake maintains

that the Plan Administrator told her it was reviewing her claim

from a medical standpoint when it was already beginning to

 

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9Leake has not filed a claim for breach of fiduciary duty.

Thus any alleged breach of a fiduciary duty is only relevant

insofar as it suggests that the Plan Administrator violated ERISA

continuously, thereby prejudicing Leake. 

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formulate non-medical reasons for denying her claim. Leake posits

that this conduct violates the doctrine of unclean hands because

ERISA does not permit a fiduciary to engage in inequitable conduct

in order to frustrate a claimant’s rights.

The Plan provides that as soon as an employee is aware of an

injury or occupational disease, she should report it to her

supervisor. The employee’s “supervisor or other designated Kroger

representative will assist [the employee] in obtaining any

necessary medical treatment and in completing the forms necessary

to document such an injury.” P. App. 4. Leake’s evidence shows

that, once she decided to report her condition as work related,

Cantu, an employee in Kroger’s Risk Management Department, assisted

Leake in determining the necessary procedures for filing a claim.

The Plan Administrator could not have been expected to assist Leake

in filling out the required paperwork and finding approved

physicians for an occupational injury before she reported such an

injury. The court declines to find that the Plan Administrator

breached its fiduciary duty to Leake by violating the Plan.9

 

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F

In sum, the court could at most find that the Plan

Administrator committed technical violations of ERISA regulations,

but that none was significant enough to undermine the purposes of

ERISA. See Robinson, 443 F.3d at 393. The Plan Administrator

substantially complied with the notice and review procedures of

ERISA, and Leake has not presented sufficient evidence to support

a finding that the Plan Administrator violated any other

provisions. 

Leake argues that the court should afford the Plan

Administrator’s decision less deference because there are evident

violations of ERISA and its implementing regulations that, as

Baker v. Metropolitan Life Insurance Co., 364 F.3d 624 (5th Cir.

2004), recognizes, constitute abuse of discretion, especially when

combined with evidence of bad faith. Baker, however, does not

stand for this proposition. It holds that “if an administrator

interprets an ERISA plan in a manner that directly contradicts the

plain meaning of the plan language, the administrator has abused

his discretion even if there is neither evidence of bad faith nor

of a violation of any relevant administrative regulations.” Id. at

630 (quoting Gosselink v. AT&T, Inc., 272 F.3d 722, 727 (5th Cir.

2001)). This statement is inapposite to Leake’s argument that bad

faith, when combined with violations of ERISA, constitutes abuse of

discretion.

 

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ERISA violations must be continuous and must amount to

substantive harm in order to affect the amount of deference the

court gives the Administrator’s decision. See Hines, 43 F.3d at

211. Not only has Leake failed to adduce sufficient evidence to

permit a finding of an ERISA violation, but the alleged violations

on which she relies were neither continuous nor prejudicial to her

benefits claim. Consequently, the court will evaluate the Plan

Administrator’s denial of claim benefits under the sliding-scale

abuse of discretion standard described above. It will not, as

Leake requests, afford the Plan Administrator less deference due to

its technical violations of certain ERISA procedural requirements.

IV

The court now addresses whether the Plan Administrator abused

its discretion in denying Leake’s claim for benefits. The court

first determines whether the Plan Administrator’s interpretation of

the Plan is legally correct; if it is not, the court must determine

whether the decision was an abuse of discretion. See MacLachlan,

350 F.3d at 481. 

A

The court assesses three factors to determine whether the

interpretation is legally correct: (1) whether the Plan

Administrator has given the Plan a uniform construction, (2)

whether the interpretation is consistent with a fair reading of the

Plan, and (3) any unanticipated costs resulting from different

 

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interpretations of the Plan. Wildbur v. Arco Chem. Co., 974 F.2d

631, 638 (5th Cir. 1992). Leake has neither alleged nor presented

evidence that the Plan was not given a uniform construction or that

there were unanticipated costs that resulted from different

interpretations of the Plan. Therefore, the court’s inquiry

focuses on whether the Plan Administrator’s interpretation is

consistent with a fair reading of the Plan. See Vercher, 379 F.3d

at 228 (“the essential inquiry here is whether [the Plan

Administrator’s] interpretation of the plan was fair and

reasonable, as [the plaintiff] did not allege that the construction

of the plan was not uniform or that there were unanticipated

costs.”)

Leake first argues that the Plan Administrator incorrectly

interpreted the notice provision of the Plan as requiring solely

formal written notice. The Plan Administrator did not state that

the Plan required formal written notice. Rather, it found that,

under the facts of the case, Leake had not adequately complied with

the requirement that an employee must report an occupational injury

to her manager or supervisor as soon as she is aware of it. The

Plan Administrator’s decision that Leake did not comply with the

notice provision turns on whether she in fact gave notice of her

occupational injury as soon as she was aware of it. Leake’s

compliance vel non with the notice provision is a question of fact,

not a question of legal interpretation. There is no evidence that

 

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suggests that the Plan Administrator interpreted the notice

provision to require anything beyond its plain meaning. Thus the

court concludes that the Plan Administrator gave a fair and

reasonable interpretation to the notice requirement of the Plan.

Leake’s arguments that the Plan Administrator incorrectly

interpreted the requirement of an approved medical provider and the

requirement of an occupational injury are likewise misplaced. At

issue is whether Leake used approved providers and whether her CTS

was an occupational injury. These are also fact questions, not

questions about the legal interpretation of the Plan. Accordingly,

the court concludes that the Plan Administrator gave a fair and

reasonable interpretation to these Plan provisions. 

V

The court turns finally to whether the Plan Administrator’s

factual findings are supported by substantial evidence. The court

must uphold the Plan Administrator’s decision if they are. See

Meditrust, 168 F.3d at 215 (“When reviewing for arbitrary and

capricious actions resulting in an abuse of discretion, we affirm

an administrator’s decision if it is supported by substantial

evidence.”). 

For the factual findings to be supported by substantial

evidence, there need only be a rational connection between the

known facts and the decision or between the found facts and the

evidence. See id. (“A decision is arbitrary only if ‘made without

 

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a rational connection between the known facts and the decision or

between the found facts and the evidence.’” (quoting Bellaire Gen.

Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 828-29 (5th

Cir. 1996)).

A

In denying Leake’s claim, the Plan Administrator relied on

§ 8.1 of the Plan, which provides eight different grounds for

denying Plan benefits. The grounds are listed in the disjunctive;

any one is sufficient of itself to support denial. A claim can be

denied if, inter alia, “the injury does not qualify as an

Occupational Injury.” Ds. App. 152. Based on Leake’s medical

records and the opinion of Dr. Tonn, the reviewing physician, the

Plan Administrator determined that Leake’s CTS was caused by a

progression of pre-existing conditions that were unrelated to her

work. Thus it found that Leake’s condition did not qualify as an

“Occupational Injury” under the Plan.

The Plan defines Occupational Injury as: “(i) an injury caused

by a specific event occurring in the course and scope of your

employment activities for Kroger . . . or (ii) a disease arising

out of and in the course of your employment with Kroger that causes

damage or harm to the physical structure of the body.” Ds. App. 16

(bold font omitted). The Plan specifically excludes from the

definition of “Occupational Injury” any “illness that is determined

by the Plan Administrator to be predominantly the result of the

 

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progression of a preexisting disease, injury or illness.” Id.

Further, the Plan states that 

[a] repetitive trauma injury will be

considered an Occupational Injury only if (a)

it is the direct result of a working event or

events, (b) a specific date can be proven upon

which the injury and its causal connection to

a working event would have become apparent to

a reasonable person, (c) you report the injury

promptly upon such date, and (d) it is not

otherwise excluded from the definition of an

Occupational Injury under the limitations

provided above.

Id.

In her Associate’s Report of Accident, Leake first classified

her condition as work related, stating that the

“scanners–repetitive trauma” caused her injury. Id. at 25. But

other than this self-diagnosis, there is no evidence in the

administrative record that would establish that her CTS was work

related. Even if CTS can generally be classified as a “repetitive

trauma injury,” under the Plan, Leake still must provide evidence

that the injury was “the direct result of a working event or

events.” Id. at 16. None of her physicians classified her

condition this way. 

Leake’s medical reports suggest that Drs. Perkins, Vu, and

Alford all believed her CTS to be the result of an underlying

connective tissue disease. Even Dr. O’Brien, who Leake believed

“explain[ed] [her] correct history the best,” P. App. 154, did not

attribute her condition to work. Dr. O’Brien did note that there

 

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was “no evidence of the Diabetes causing a diffuse neuropathy,” but

she did not note any connection between Leake’s CTS and her work as

a Kroger cashier. Ds. App. 125.

Leake’s medical records provide sufficient evidence to support

the Plan Administrator’s finding that Leake’s CTS was not an

“Occupational Injury” under the Plan. Not one of her doctors

suggests that the CTS is work related, and this evidence alone is

rationally connected to the conclusion that her CTS is not an

“Occupational Injury.” See Meditrust, 168 F.3d at 215.

Accordingly, the Plan Administrator did not abuse its discretion in

denying Leake’s benefits claim based on a finding that her CTS was

not an “Occupational Injury.” Because this ground alone is

sufficient to dismiss Leake’s lawsuit and uphold the Plan

Administrator’s decision, the court need not address the other

grounds on which the Plan Administrator relied to deny her claim.

* * *

For the reasons set out, the court grants defendants’ motion

for summary judgment and dismisses this action with prejudice.

SO ORDERED.

September 28, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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