*The Honorable Gerald E. Rosen, United States District Judge for theEastern District of Michigan, sitting by designation.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0040P (6th Cir.)File Name: 00a0040p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________UNIVERSITYHOSPITALS OFCLEVELAND,Plaintiff-Appellant,v.EMERSONELECTRICCOMPANYand EMERSONELECTRICCOMPANYBENEFITPLAN,Defendants-Appellees.;>1No. 98-4061Appeal from the United States District Courtfor the Northern District of Ohio at Cleveland.No. 92-01555—Paul R. Matia, Chief District Judge.Argued: August 5, 1999Decided and Filed: February 1, 2000Before:NELSON and MOORE Circuit Judges;ROSEN, District Judge.*2University Hospitals v.Emerson Electric Co., et al.No. 98-4061_________________COUNSELARGUED:Daniel W. Dreyfuss, DANIEL W. DREYFUSSCO., Cleveland, Ohio, for Appellant. Phillip J. Campanella,CALFEE, HALTER & GRISWOLD, Cleveland, Ohio, forAppellees.ON BRIEF:Daniel W. Dreyfuss, DANIEL W.DREYFUSS CO., Cleveland, Ohio, for Appellant. Phillip J.Campanella, CALFEE, HALTER & GRISWOLD, Cleveland,Ohio, for Appellees.ROSEN, D. J., delivered the opinion of the court, in whichMOORE, J., joined. NELSON, J. (pp. 25-29), delivered aseparate dissenting opinion._________________OPINION_________________ROSEN, District Judge.I.INTRODUCTIONPlaintiff/Appellant University Hospitals of Cleveland(“UHOC”) appeals from the most recent award of summaryjudgment in favor of Defendants/Appellees Emerson ElectricCompany and the Emerson Electric Company Benefit Plan(collectively, the “Plan”) in this action brought under theEmployee Retirement Income Security Act of 1974(“ERISA”), 29 U.S.C. § 1001et seq.In the ruling now onappeal, the District Court found that the Plan’s administrativereview body, the Employee Benefit Committee (“EBC”), didnot act arbitrarily or capriciously in denying a claim for healthcare benefits made by UHOC as assignee of the claims of adeceased Plan participant, Gerald Weaver. In a prior appeal,we reversed an initial award of summary judgment to thePlan, citing evidence in the record that the EBC had“erroneously relied upon a provision that was not included inNo. 98-4061University Hospitals v.Emerson Electric Co., et al.3the actual Plan documents.”SeeUniversity Hosps. ofCleveland v. Emerson Elec. Co. Benefit Plan, No. 93-4924,slip op. at 4 (6th Cir. Dec. 22, 1994). Accordingly, weordered the matter remanded to the EBC with instructions toreconsider UHOC’s claim in light of “the actual Planprovisions applicable to such claim.”Id.On remand, the EBC once again denied UHOC’s claim, andthe District Court again affirmed that decision under the“arbitrary and capricious” standard of review. UHOC nowraises four arguments on appeal: (1) that the District Courterred in ruling that the EBC’s decision on remand was exemptfrom the time limits set forth in the Plan for acting uponrequests for review of claim denials; (2) that the lower courtimproperly disregarded the “law of the case,” as purportedlyestablished in our earlier decision, regarding the applicabilityof the Plan’s time limits on remand to the EBC; (3) that theEBC’s decision on remand was tainted by the same error thatled us to reverse and remand in the initial appeal; and (4) thatthe EBC acted arbitrarily and capriciously in denying benefitsbased upon a determination that the decedent, Mr. Weaver,suffered from a pre-existing condition. For the reasons statedbelow, we find that the EBC’s decision to deny benefits wasarbitrary and capricious, and we accordingly reverse theaward of summary judgment to the Plan.II.FACTUAL AND PROCEDURAL BACKGROUNDA. The PartiesAs we noted in our earlier decision, there is little, if any,factual dispute in this case. Plaintiff/Appellant UHOCbrought this ERISA action as the assignee of Gerald Weaver,seeking to recover benefits from the Defendant/Appellee Planfor medical services rendered to Mr. Weaver before his deathon June 3, 1991. The Plan’s administrative review body, theEBC, has twice denied UHOC’s claim for benefits, findingthat the medical services at issue were not covered by the Planbecause they constituted treatment for a pre-existing condition4University Hospitals v.Emerson Electric Co., et al.No. 98-4061suffered by Mr. Weaver before he became eligible for Planbenefits.Mr. Weaver began working for Automatic Switch Company(“ASCO”), a division of Defendant/Appellee EmersonElectric Company, on September 24, 1990. He becameeligible for medical benefits under the Plan on December 24,1990, the ninetieth day of his employment. From March 27,1991 until his death on June 3, 1991, Mr. Weaver receivedtreatment at UHOC for myelodysplastic syndrome, a bonemarrow disease. The principal dispute in this case is whetherMr. Weaver received prior treatments for this disease thatwould trigger the Plan’s “pre-existing condition” exclusionfrom coverage.B. Mr. Weaver’s 1990-91 Visits to Physicians andMedical TreatmentsOn September 11, 1990, shortly before he began workingfor ASCO, Mr. Weaver visited his physician, Dr. UnniKumar, complaining of fatigue and stress. Dr. Kumardiagnosed Mr. Weaver as suffering from anemia,recommended a blood test, and asked Mr. Weaver to returnfor further evaluation. (J.A. at 468-70.) That same day, bloodsamples were taken from Mr. Weaver and submitted to alaboratory for analysis.On September 28, 1990, four days after Mr. Weaver beganhis employment at ASCO, Mr. Weaver again visited Dr.Kumar to discuss the results of his recent blood test. Dr.Kumar advised Mr. Weaver that the serum iron, folic acid,and B-12 portions of this test were “all normal.” (J.A. at474.) Nevertheless, in light of the previous diagnosis ofanemia, Dr. Kumar recommended that the blood test berepeated “before we embark on a complete hematologicalwork-up.” (Id.) In accordance with this recommendation, asecond blood sample was taken from Mr. Weaver that dayand submitted for laboratory analysis. If this second testNo. 98-4061University Hospitals v.Emerson Electric Co., et al.29Given the structure of the Pre-existing Limitation provision,where “Pre-existing” has no meaning except in relation to thestart of coverage and where the date used for the calculationof the first two of the three time periods mentioned is clearlythe date on which the individual becomes eligible under theplan, it was not irrational for the Committee to conclude thatthe drafters intended the use of the same date for calculatingthe third time period as well. This is not the only possibleconstruction of the provision, but it is certainly not anirrational construction.The parties agree that there was no three-month periodwhen Mr. Weaver was treatment-free between December 24,1990, the date on which he became eligible for coverage, andJune 3, 1991, the date on which he died. Accordingly, andbecause I agree with the district court that the Committee’smost recent decision was rendered pursuant to the order ofremand and was not subject to the contractual time limits thatapplied during the initial decision-making process, I wouldaffirm the challenged judgment.28University Hospitals v.Emerson Electric Co., et al.No. 98-4061489 U.S. 101, 115 (1989), andYeager v. Reliance StandardLife Ins. Co., 88 F.3d 376, 381 (6th Cir. 1996).The record leaves no room for doubt as to why theCommittee upheld the denial of benefits in the case at bar. Asthe deposition testimony of Committee Member JamesDraeger shows, the Committee saw no reason even toconsider whether Mr. Weaver had received treatment orservices during the first 90 days after September 28, 1990.The Committee upheld the denial of benefits solely on thebasis of its construction of the provisions of the Plan relatingto pre-existing medical conditions. And the record shows, Ibelieve, that the Committee had a rational basis for construingthe provisions in the way that it did.Addressing the Pre-existing Limitation clause in theSchedule of Benefits, Mr. Draeger explained at page 104 ofhis deposition transcript that “this particular provision startswhere an individual is eligible for the plan . . . .” (Mr.Weaver became eligible on December 24, 1990.) Theexclusion for medical expenses incurred in connection withcertain pre-existing conditions, Mr. Draeger went on toexplain, continues “for a period of one year.” Draeger Depo.Trans. at 104-105. Once eligibility starts, in other words,“[the exclusion] is going to go for one year from thatdate. Or it is going to go . . . from that date for threemonths.Q From which date?A We are talking about an individual becomingeligible under the plan, so now the individual iseligible. So now we are talking about one date[i.e., one year] from the date of eligibility, or ifthe individual has been free of treatment at anythree-month period during that particular oneyear period of time, whichever fi[r]st occurs.”Id. at 105.No. 98-4061University Hospitals v.Emerson Electric Co., et al.5proved abnormal, Dr. Kumar “plan[ned] to refer [Mr.Weaver] to a hematologist.” (Id.)This September 28, 1990 test revealed a number of resultsoutside the normal range, including low red blood cell andplatelet counts, low hemoglobin and hematoocrit values, andelevated MCV and MCH levels. (J.A. at 473.) Accordingly,on October 8, 1990, Dr. Kumar called Mr. Weaver andadvised him to see a hematologist. (J.A. at 470.) Althoughthere are two subsequent entries in Dr. Kumar’s records forthe month of October — the first dated October 12, 1990,scheduling Mr. Weaver for an additional blood test, and thesecond dated October 26, 1990, reflecting Mr. Weaver’srefusal to submit to this additional test, (J.A. at 475) — Mr.Weaver declined any further treatment in October, citing alack of insurance coverage that would pay for a pre-existingcondition. (Id.)Instead, Mr. Weaver elected to wait until January 8, 1991— two weeks after his Plan eligibility date of December 24,1990 — to visit a hematology specialist as recommended byDr. Kumar. The examining physician, Dr. Jon Reisman,diagnosed Mr. Weaver as suffering from mild anemia andmoderately severe thrombocytopenia. (J.A. at 674.) Over thecourse of the next several days, Mr. Weaver underwent anumber of procedures, including additional blood and bonemarrow tests, a chest x-ray, and a CT scan of his abdomen.These procedures were intended, at least in part, to rule out adiagnosis of myelodysplastic syndrome. (J.A. at 476.) Whenthe results proved inconclusive, Dr. Reisman referred Mr.Weaver to Dr. James Weick at the Cleveland Clinic forfurther evaluation. (J.A. at 671.)Beginning on February 8, 1991 and continuing until hisdeath four months later, Mr. Weaver received a variety ofmedical services and treatments at the Cleveland Clinic,UHOC, and elsewhere. His treatments at UHOC commencedon March 27, 1991, and resulted in total billings for medicalservices in the amount of $233,829.75. Mr. Weaver6University Hospitals v.Emerson Electric Co., et al.No. 98-4061ultimately was diagnosed as suffering from myelodysplasticsyndrome, a bone marrow disease in which defective stemcells proliferate to the exclusion of normal cells. This diseaseevolved to acute leukemia, and led to Mr. Weaver’s death onJune 3, 1991 from kidney and heart failure. (J.A. at 536-37.)C. The Relevant Plan ProvisionsThis case turns upon the EBC’s determination that all of themedical expenses incurred by Mr. Weaver at UHOC derivedfrom treatments for a “pre-existing condition” as defined inthe Plan document, and therefore are not “covered medicalexpenses” under the Plan. This determination rests upon thefollowing Plan provision, entitled “Pre-Existing ConditionLimits”:Hospital expenses and other medical expenses incurredin connection with a disease or injury for which acovered individual received treatment or services or tookprescribed drugs during the three month periodimmediately preceding the effective date of suchindividual’s coverage under this Plan will not beincluded as covered medical expenses prior to the earliestof the dates shown in the Schedule of Benefits.(Plan, § 4, ¶ 1.84, J.A. at 609.) The Plan’s Schedule ofBenefits, in turn, sets forth the terms under which aparticipant may obtain coverage for a pre-existing condition:No benefits are payable for a pre-existing illness orinjury for which an individual was treated or tookprescribed medicine within 3 months prior to coverageuntil:1) the individual has been covered under this Plan forone year, or2) the individual has been free of treatment for thepre-existing illness or injury for 3 months.No. 98-4061University Hospitals v.Emerson Electric Co., et al.272) the individual has been free of treatment for thepre-existing illness or injury for 3 months.”As written, the second clause is open to conflictinginterpretations. It is possible that the drafters intended toprovide that the one-year-of-coverage requirement would beoverridden upon the expiration of three treatment-free monthscommencing with the last treatment. Had this been theirintent, the drafters could have said so explicitly. They couldhave said, for example, that the year-of-coverage requirementwould be overridden once the individual had gone withouttreatment for three months “from the date of the lasttreatment.” Unfortunately, the quoted words were notincluded in the Pre-existing Limitation provision.It is also possible – and perhaps more likely – that thedrafters intended to provide that the year-of-coveragerequirement would be overridden once the individual hadbeen free of treatment for three months during that first yearof coverage. Unfortunately, however, the drafters did notexplicitly say this either. Through inadvertence, no doubt,they left their intention ambiguous.Such ambiguities are almost certain to creep into adocument as complex as this one. The drafters could, ofcourse, have left the resolution of these inevitable ambiguitiesto the courts. But they chose not to. Instead, the draftersprovided that a five-member Employee Benefit Committeeappointed by the Emerson Electric Company’s Board ofDirectors should have “discretionary authority to determineeligibility for benefits or to construe the terms of the Plan. . . .” And they further provided that unless the Committee’sconstruction of the Plan’s terms should be “arbitrary andcapricious” –i.e., simply irrational – the Committee’sdecision “shall be final and non-reviewable . . . .” In the faceof such language, it is clear that the courts have no authorityto second-guess the Committee unless the Committee hasacted irrationally. SeeFirestone Tire & Rubber Co. v. Bruch,26University Hospitals v.Emerson Electric Co., et al.No. 98-4061has not been briefed and argued, however, and I haveconducted no independent research on the matter. I dissenthere not because of what was said by the original panel (apanel of which I was a member, incidentally), but because Iremain of the opinion that it was not irrational for theCommittee to construe the terms of the Plan as meaning thatno benefits would be payable in connection with Mr.Weaver’s pre-existing illness during the first year of coverageunless and until there had been three months of coverage inwhich Mr. Weaver had been free of treatment for the illness.I acknowledge that the language of the Plan is not as clearas it might be. The Plan’s Benefit Provisions start off plainlyenough by establishing certain “Pre-Existing ConditionLimits” once coverage commences:“Hospital expenses and other medical expenses incurredin connection with a disease or injury for which acovered individual received treatment or services or tookprescribed drugs during the three month periodimmediately preceding the effective date of suchindividual’s coverage under this Plan will not beincluded as covered medical expenses prior to the earliestof the dates shown in the Schedule of Benefits.”Under the catchline “Pre-existing Limitation” (a reference,obviously, to the limits pertaining to medical conditions thatwere “pre-existing” as of the commencement of coverage),the Plan’s Schedule of Benefits – speaking as of thecommencement of coverage, in the Committee’s undertaking– then says this:“No benefits are payable for a pre-existing illness orinjury for which an individual was treated or tookprescribed medicine within 3 months prior to coverageuntil:1) the individual has been covered under this Planfor one year, orNo. 98-4061University Hospitals v.Emerson Electric Co., et al.71As we observed in UHOC’s prior appeal to this Court, PAI’sreference to a condition “for which you received diagnosis” does notcomport with either the Plan or the SPD, both of which speak only ofreceiving treatment or taking prescribed drugs.(Plan, § 7, at 3, J.A. at 625.)The Summary Plan Description (“SPD”) includes similarlanguage, in a section entitled “Expenses Not Covered”:No medical benefits will be paid for the following:• A pre-existing illness or injury for which you weretreated or took prescribed medicines within 3 monthsbefore your coverage began until:— you have been covered under this Plan for a year, or— you haven’t had any charges for this illness orinjury for 3 months,whichever comes first . . . .(SPD at 12, J.A. at 157.)D. Procedural BackgroundThis case has a lengthy procedural history. In May of 1991,shortly before his death, Mr. Weaver sought reimbursementfrom the Plan for a portion of the medical expenses heincurred at UHOC and elsewhere. On May 29, 1991, thePlan’s third-party administrator, Pension AssociatesIncorporated (“PAI”), denied this claim for benefits, statingthat “[n]o benefits are payable for a condition for which youreceived diagnosis, were treated or took prescribed medicineswithin 3 months before [the] effective date” of Plan coverage.(J.A. at 224.)1On August 15, 1991, PAI reiterated thisposition upon being presented with a request for8University Hospitals v.Emerson Electric Co., et al.No. 98-4061reimbursement of additional medical expenses incurred byMr. Weaver before his death. (J.A. at 355.)On November 11, 1991, the executor of Mr. Weaver’sestate, Clark Weaver, assigned to UHOC “all benefits in theform of health insurance or similar benefits under anemployer-sponsored health and welfare fund which GeraldWeaver (deceased) had at the time of his treatment at[UHOC], not to exceed the hospital/physician charges.” (J.A.at 28.) At about the same time, Clark Weaver appealed thedenial of benefits to the Plan’s administrative review body,the EBC, asserting that Mr. Weaver “had never beendiagnosed nor had he ever been treated for any condition”prior to the date of Plan coverage. (J.A. at 364.) On April 10,1992, the EBC denied this appeal, quoting the above-citedPlan language regarding pre-existing conditions, and statingthat “based upon the information which was reviewed by twomedical consultants, it is the Committee’s decision that [Mr.Weaver’s] illness was pre-existing and, as such, the chargeshave been correctly denied.” (J.A. at 225.)UHOC then brought this action on July 1, 1992, seekingreversal of the EBC’s decision to deny benefits. On October29, 1993, the District Court granted the Plan’s motion forsummary judgment. In so ruling, the Court found that Mr.Weaver’s September 28, 1990 visit to Dr. Kumar triggeredthe Plan’s “pre-existing condition” exclusion, because itoccurred less than three months before Mr. Weaver becameeligible for Plan coverage on December 24, 1990. The Courtnext held that the EBC had reasonably construed the Plan’sSchedule of Benefits as requiring that a participant go withouttreatment of a pre-existing condition for three monthsafterhis Plan eligibility date — as opposed toanythree-monthperiod, before or after the eligibility date, as UHOCcontended — in order to qualify for coverage of furthermedical expenses incurred in connection with a pre-existingcondition. Because Mr. Weaver had visited a physician onJanuary 8, 1991, just two weeks after his eligibility date, theNo. 98-4061University Hospitals v.Emerson Electric Co., et al.25________________DISSENT________________DAVID A. NELSON, Circuit Judge, dissenting. I agreewith my colleagues on the panel that the Employee BenefitCommittee did not act irrationally in determining that Mr.Weaver received “treatment or services” when he saw Dr.Kumar on September 28, 1990. I also agree that theCommittee did not act irrationally in determining that thehospital and medical expenses incurred after thecommencement of coverage were incurred in connection withthe same pre-existing disease for which Mr. Weaver receivedtreatment or services on September 28. I cannot agree,however, that the Committee acted irrationally in determiningthat Mr. Weaver failed to come within the three-monthswithout-treatment exception to the provision under which thepayment of benefits for such a pre-existing disease is barreduntil there has been a full year of coverage.If the Committee was irrational in finding this exceptioninapplicable, then a unanimous three-judge panel of this courtmust have been equally irrational when, speaking for the courtwhen the case was here earlier, the panel quoted the pertinentsections of the Plan in their entirety and went on to note thatneitherexception to the preclusion of benefits for certain preexisting conditions – neither the one-year-of-coverageprovision nor the three-months-without-treatment provision– had been satisfied in the matter at hand. SeeUniversityHospital of Cleveland v. Emerson Electric Co. Benefit Plan,No. 93-4924, slip op. at 3 n.1 (6th Cir. Dec. 22, 1994) (“Itshould be noted that neither exception (1) nor exception (2)applies to the matter at hand”).I should have thought, at first blush, that this court’s 1994opinion might well have established the law of the case withrespect to the issue on which the current panel rests itsdecision. The applicability of the law-of-the-case doctrine24University Hospitals v.Emerson Electric Co., et al.No. 98-406113Because the EBC determined that the expenses incurred at UHOCwere wholly excluded from coverage as relating to a “pre-existingcondition,” it appears that neither the third-party administrator nor theEBC considered whether the particular expenses claimed by UHOC werecovered by the Plan, subject to a deductible, or the like. Thus, we cannotorder an award of benefits, but must order the matter remanded to theEBC, with the understanding that further proceedings must be confinedto addressing the specific expenses contained in UHOC’s claim.it be remanded to the EBC for further proceedings inaccordance with our ruling.13IV.CONCLUSIONFor the foregoing reasons, we REVERSE the judgment ofthe court below and REMAND this matter to the DistrictCourt, with instructions that UHOC’s claim be remanded tothe EBC for further proceedings consistent with this decision.No. 98-4061University Hospitals v.Emerson Electric Co., et al.9Court upheld the EBC’s determination that his subsequentmedical expenses were not covered under the Plan.UHOC appealed to this Court, and we reversed. In ourDecember 22, 1994 Opinion, we held that the EBC’sdetermination could not be sustained, in light of the evidencein the record that the EBC had considered a definition of “preexisting condition” that could not be found either in the Planor in the SPD. Accordingly, we ordered the matter remandedto the EBC with instructions to review UHOC’s claim “underthe terms of the actual Plan provisions applicable to suchclaim.”University Hosps. of Cleveland v. Emerson Elec. Co.Benefit Plan, No. 93-4924, slip op. at 4 (6th Cir. Dec. 22,1994).On remand, the EBC again concluded, in a decision datedJune 7, 1995, that UHOC was not entitled to an award ofbenefits:After a thorough reconsideration and review, theEmployee Benefit Committee voted unanimously to denythe appeal of the University Hospitals of Cleveland. TheEmployee Benefit Committee concluded that the experttestimony establishes that Gerald Weaver had a diseasefor which he received treatment or services during thethree month period immediately preceding the effectivedate of his coverage under the Plan.In addition, the evidence establishes that Mr. Weaverwas not covered by the Plan for one year, and theevidence further establishes that Mr. Weaver had notbeen free of treatment for the pre-existing condition forthe three month period as required by the terms of thePlan. This decision is consistent with past interpretationsof the applicable Plan provisions.(J.A. at 767-68.)Following this second EBC determination, the DistrictCourt issued an Opinion and Order on January 17, 1997,10University Hospitals v.Emerson Electric Co., et al.No. 98-40612We recently held inWilkins v. Baptist Healthcare Sys., Inc., 150F.3d 609, 617-19 (6th Cir. 1998), that summary judgment generally is aninappropriate mechanism for adjudicating ERISA claims for benefits.The District Court did not have the benefit of this decision, issued just afew days before the ruling now on appeal. In any event, as we explainedinWilkins, such reliance on summary judgment standards does notwarrant reversal, so long as the District Court’s review of the challengedbenefit decision is confined to the evidence contained in theadministrative record. 150 F.3d at 620. The lower court’s decision in thiscase appears to satisfy this standard. Likewise, in our review of theDistrict Court’s ruling, we will consider only the materials available to theEBC, and not any depositions, affidavits, or similar litigation-relatedmaterials that the parties submitted to the District Court.restoring the case to its active docket, and setting a briefingschedule for cross-motions for summary judgment. Theparties filed their cross-motions and, by Opinion and Orderdated August 6, 1998, the Court granted the Plan’s motionand denied UHOC’s motion. In this decision, as in its 1993ruling, the District Court found that the EBC’s denial ofbenefits was not arbitrary and capricious. The Court alsorejected UHOC’s argument that the EBC failed to timelyissue its latest decision in accordance with the relevant Planprovision governing appeals of claim denials. UHOC nowappeals this latest award of summary judgment to the Plan.2III.ANALYSISA. The Standards Governing Review of the ChallengedDenial of BenefitsA participant or beneficiary of an ERISA plan — or, as inthis case, an assignee of the rights held by a plan participant— may bring suit in federal district court to recover benefitsallegedly due under the terms of the plan.See29 U.S.C.§ 1132(a)(1)(B). It is by now well-established that courtsreview such challenges to benefit determinations under thedenovostandard, unless the benefit plan gives the planadministrator discretionary authority to determine eligibilityfor benefits or to construe the terms of the plan.SeeNo. 98-4061University Hospitals v.Emerson Electric Co., et al.23thereby satisfied the Plan’s requirement for coverage of a preexisting condition. Thus, having surveyed all of the possiblebases for the EBC’s determination to the contrary, and findingeach of them lacking in reasoned justification, we concludethat the EBC’s decision to deny UHOC’s claim was arbitraryand capricious.In so holding, we cannot be blind to the totality of thecircumstances surrounding Mr. Weaver’s medical treatment.According to Dr. Kumar’s medical records, Mr. Weaveraffirmatively cited the “pre-existing condition” limitation onhis health care coverage when he refused further treatment inOctober of 1990. The Plan suggests that this wasopportunistic behavior, and urges us to reject “the notion thata person can deliberately and intentionally ignore arecommended course of care in order to create the illusion ofthe absence of treatment for an existing disease.”(Defendants/Appellees’ Appeal Br. at 30.) Yet, we discern no“illusion” here, nor any unfairness in the result. Rather, Mr.Weaver’s conduct was the entirely foreseeable and reasonableproduct of Plan language that created an incentive to foregotreatment of a pre-existing condition. If the Plan wishes tocurtail “deliberate and intentional” elections by itsparticipants to “ignore” recommended courses of treatment,then the Plan should be amended so as not to encourage suchbehavior.As the Plan is now written, however, such conduct isrewarded, and we see no reason to penalize Mr. Weaver forconforming his health care decisions to a reasonable —indeed, in our view, theonlyreasonable — construction of thePlan. Accordingly, we find that the EBC’s denial of UHOC’sclaim for benefits was arbitrary and capricious, we reverse thejudgment of the court below upholding this denial, and weremand this matter to the District Court with instructions that22University Hospitals v.Emerson Electric Co., et al.No. 98-406112Tellingly, in an August 20, 1991 letter clarifying “the status of Mr.Gerald Weaver and the contact he has had with our office,” Dr. Kumardid not even mention any contacts with Mr. Weaver in October of 1990,but instead concluded his summary with the September 28, 1990 officevisit. (J.A. at 367.)be termed “treatment” was administered or received onOctober 8.SeeAmerican Heritage College Dictionary 1440(3d ed. 1993) (defining “treatment” as “[a]dministration orapplication of remedies to a patient or for a disease or aninjury,” or “[t]he substance or remedy so applied”). Rather,the treatment was received on September 28, and thedoctor/patient contact on October 8 merely followed up onthis prior treatment, reporting its outcome and recommendingfurther treatment.12We do not believe that a mererecommendation constitutes treatment, particularly where, ashere, the patient declines to adopt the recommended course ofcare.The Plan’s suggestion that the October 8 contact was partof an ongoing “treatment” is all the more untenable whenconsidered in light of the SPD, which effectively equates“treatment” with “charges.” The record does not indicate thatMr. Weaver incurred any charges based on Dr. Kumar’sOctober 8 telephone call, and one would not expect that sucha physician contact following an office visit would result in aseparate charge. Because we must give controlling effect tothe language of the SPD, it is not enough that the October 8contact might constitute “treatment” under some conceivabledefinition of that term, if Mr. Weaver incurred no charges thatday.In any event, even if the October 8 contact could be viewedas “treatment” under the Plan and its SPD, Mr. Weaverwaited three full months, until January 8, 1991, beforeseeking any further treatment of his condition. Under theplain language of the Plan, then, Mr. Weaver remained “freeof treatment for the pre-existing illness or injury for threemonths,” between October 8, 1990 and January 8, 1991, andNo. 98-4061University Hospitals v.Emerson Electric Co., et al.113While conceding that this Plan language, viewed in isolation,dictates application of the deferential “arbitrary and capricious” standard,UHOC argues that thede novostandard should apply here by virtue of theEBC’s alleged failure to timely issue a decision following our priorremand of this matter to that body for reconsideration. As UHOC pointsout, if a plan administrator fails to timely decide an appeal of a claimdenial, the challenged claim “shall be deemed denied on review,” 29C.F.R. § 2560.503-1(h)(4), and the claimant may then “bring a civil actionto have the merits of his application determined, just as he may bring anFirestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115,109 S. Ct. 948, 956 (1989);Smith v. Ameritech, 129 F.3d 857,863 (6th Cir. 1997). In this latter case, the administrator’sbenefit determination is reviewed under an “arbitrary andcapricious” standard.Firestone, 489 U.S. at 115, 109 S. Ct.at 956-57;Smith, 129 F.3d at 863.The Plan in this case provides that the EBC “shall have thediscretionary authority to determine eligibility for benefits orto construe the terms of the Plan,” (Plan, § 6, BlanketAmendment, J.A. at 629), and further provides:The Employee Benefit Committee, as outlined inSection One (2.), is empowered to review requests forreview of denied claims submitted in writing by anyparticipant. The Plan gives the Employee BenefitCommittee the discretionary authority to determineeligibility for benefits or to construe the terms of the Planin carrying out the duties outlined in this Section [i.e.,Section 5] and Section One (2.). The decision of theReview Board shall be final and non-reviewable unlessfound to be arbitrary and capricious by a court ofcompetent review.(Id.) As the parties apparently agree, this language constitutesa sufficient grant of discretionary authority to triggerapplication of the “arbitrary and capricious” standard ofreview.See,e.g.,Bagsby v. Central States, Southeast &Southwest Areas Pension Fund, 162 F.3d 424, 428 (6th Cir.1998);Smith, 129 F.3d at 863.312University Hospitals v.Emerson Electric Co., et al.No. 98-4061action to challenge an outright denial of benefits.”Massachusetts Mut.Life Ins. Co. v. Russell, 473 U.S. 134, 144, 105 S. Ct. 3085, 3091 (1985).Although neither the regulation norRusselladdresses the applicablestandard of review in such circumstances, there is undeniable logic in theview that a plan administrator should forfeit deferential review by failingto exercise its discretion in a timely manner.But seeDaniel v. EatonCorp., 839 F.2d 263, 267 (6th Cir. 1988) (stating that “the standard ofreview is no different whether the appeal is actually denied or is deemeddenied”),cert. denied, 488 U.S. 826 (1988). In any event, given ourruling on the merits of the EBC’s denial of benefits, we need not decidewhether the EBC timely issued its decision on remand, nor whether anyfailure to timely decide UHOC’s appeal should trigger a less deferentialstandard of review.Under this deferential “arbitrary and capricious” standard,we will uphold a benefit determination if it is “rational inlight of the plan’s provisions.”Yeager v. Reliance StandardLife Ins. Co., 88 F.3d 376, 381 (6th Cir. 1996) (internalquotations and citation omitted). Stated differently, “[w]henit is possible to offer a reasoned explanation, based on theevidence, for a particular outcome, that outcome is notarbitrary or capricious.”Davis v. Kentucky Finance Cos.Retirement Plan, 887 F.2d 689, 693 (6th Cir. 1989) (internalquotations and citation omitted),cert. denied, 495 U.S. 905(1990).We note, however, that our deferential review of the benefitdenial at issue here is tempered by two principles. First, asUHOC argued in the early stages of this litigation before theDistrict Court, we should not overlook the fact that the Planis funded largely by Defendant/Appellee Emerson Electric,and that the EBC is appointed by Emerson’s Board ofDirectors. The “possible conflict of interest” inherent in thissituation “should be taken into account as a factor indetermining whether the [EBC’s] decision was arbitrary andcapricious.”Davis, 887 F.2d at 694;see alsoBorda v. Hardy,Lewis, Pollard & Page, P.C., 138 F.3d 1062, 1069 (6th Cir.No. 98-4061University Hospitals v.Emerson Electric Co., et al.21condition. Although this phrase is not further defined in thePlan, the Summary Plan Description (“SPD”) restates thePlan’s three-month treatment-free provision as requiring that“you haven’t hadany chargesfor this illness or injury for 3months.” (SPD at 12, J.A. at 157 (emphasis added).)Because employees rely on summary descriptions “forinformation which will allow them to make intelligentdecisions about their future benefit needs,” we have held thatthe language of the SPD controls over any conflictinglanguage in the Plan itself.Helwig v. Kelsey-Hayes Co., 93F.3d 243, 247-48 (6th Cir. 1996),cert. denied, 519 U.S. 1059(1997). Accordingly, in considering the Plan’s contentionthat Mr. Weaver was not “free of treatment” in October of1990, we must be mindful of the SPD’s linkage between“treatment” and “charges.”Viewed in this context, it is clear that nothing in Mr.Weaver’s medical history for October of 1990 couldreasonably be considered “treatment.” First, the cursory entryfor October 12 does not establish any contact whatsoeverbetween Mr. Weaver and his physician, much less the“treatment” required under the terms of the Plan. Next, theOctober 26 entry not only fails to reflect any treatmentreceived by Mr. Weaver, but affirmatively shows hisrefusalof treatment. Plainly, such a refusal cannot be equated withtreatment, as it is the very antithesis of treatment. And, therecord is devoid of any evidence that Mr. Weaver incurredcharges relating to these October 12 and October 26 entries inhis medical history.Turning, finally, to the October 8 contact between Dr.Kumar and Mr. Weaver, the Plan asserts that it is reasonableto view this as a continuation of the September 28 office visit,in which Dr. Kumar reported the results of the testsadministered during the office visit and recommended afurther course of action. Yet, the Plan itself is clear in statingthat onlytreatmentis relevant, and not, for example, the mere“services” that are sufficient to initially trigger the exclusionfor pre-existing conditions. Simply stated, nothing that could20University Hospitals v.Emerson Electric Co., et al.No. 98-406110The record does not indicate whether this blood test was to occuron October 12 or some other date, nor whether Mr. Weaver was contactedin regard to this matter. In any event, it appears that Dr. Kumar’s officedid not administer any blood tests in October.11We note that there is nothing in the administrative record toindicate that the EBC ever made such a finding of a “continuing courseof treatment” extending into October of 1990. Nevertheless, in theinterest of resolving this nearly eight-year-old litigation, we will addressthis argument as a possible alternate ground for sustaining the EBC’sdecision.without “treatment” for this condition, whether before or afterhis Plan eligibility date. The parties agree that Mr. Weaverdid not seek treatment in November or December of 1990,and that his treatment resumed on January 8, 1991. Thedispositive question, therefore, is whether Mr. Weaver was“free of treatment” during all or most of October, 1990, sothat there was a three-month period before January 8, 1991 inwhich he received no treatment for his condition.Dr. Kumar’s medical history for Mr. Weaver includes threeentries for October of 1990. First, on October 8, 1990, Dr.Kumar called Mr. Weaver to inform him of the results of hisrecent blood test and recommend that he see a hematologist.(J.A. at 470.) Next, there is a short entry for October 12,1990, stating only “CBC,” which apparently reflects anattempt to schedule an additional blood test.10(J.A. at 475.)Finally, an entry dated October 26, 1990 indicates that Mr.Weaver refused a blood test, stating that his health insurancewould not cover a pre-existing condition. (Id.) The Planargues that these October entries reflect a “continuing” courseof treatment which began with Mr. Weaver’s September 28office visit. (Defendants/Appellees’ Appeal Br. at 27.)11We cannot accept this as a reasonable characterization ofMr. Weaver’s medical history. We begin by observing thatthe Plan itself offers considerable guidance in determiningwhat it means to be “free of treatment” for a pre-existingNo. 98-4061University Hospitals v.Emerson Electric Co., et al.134In its initial decision granting summary judgment to the Plan, theDistrict Court rejected UHOC’s claim of a conflict of interest, reasoningthat “[t]he Plan is clearly a separate and distinct entity requiring fiduciaryduties under ERISA.” (District Court’s 10/29/93 Op. at 4, J.A. at 680.)Because we found a different defect in the EBC’s decisional process, wedid not reach this issue in the initial appeal, and UHOC has not raised itin the present appeal. Nevertheless, we believe it appropriate to observehere that the mere existence of fiduciary duties, which always are presentin any benefit determination governed by ERISA, does not obviate theneed to more carefully examine decisions that might be tainted by aconflict of interest. Courts should be particularly vigilant in situationswhere, as here, the plan sponsor bears all or most of the risk of payingclaims, and also appoints the body designated as the final arbiter of suchclaims. Under these circumstances, the potential for self-interesteddecision-making is evident.1998).4Next, to the extent that the Plan’s language issusceptible of more than one interpretation, we will apply the“rule ofcontra proferentum” and construe any ambiguitiesagainst Defendants/Appellees as the drafting parties.Perezv. Aetna Life Ins. Co., 150 F.3d, 550, 557 n. 7 (6th Cir. 1998).B. The EBC’s Interpretation of the Plan as Not Coveringthe Medical Expenses Mr. Weaver Incurred atUHOC Is Arbitrary and Capricious.As indicated by the above-quoted Plan provisions relatingto pre-existing conditions, the EBC’s consideration ofUHOC’s claim for benefits involved a two-step inquiry. First,under the Plan’s definition of a “pre-existing condition,” theEBC had to determine whether Mr. Weaver’s medicalexpenses at UHOC were “incurred in connection with adisease or injury for which [Mr. Weaver] received treatmentor services or took prescribed drugs during the three monthperiod immediately preceding” Mr. Weaver’s Plan eligibilitydate of December 24, 1990. If so — in other words, if Mr.Weaver’s medical expenses were traceable to a “pre-existingcondition” — the EBC then would have to consider whetherMr. Weaver satisfied either of the two conditions under whichthe Plan would commence to pay expenses relating to this14University Hospitals v.Emerson Electric Co., et al.No. 98-4061“pre-existing condition”: namely, either (1) that Mr. Weaverwas “covered under this Plan for one year,” or (2) that he hadbeen “free of treatment for the pre-existing illness or injuryfor 3 months.” Upon carrying out this two-step inquiry, theEBC concluded that Mr. Weaver’s UHOC expenses weretraceable to a pre-existing condition, but that he had notsatisfied either of the two conditions for coverage of this preexisting condition by the time he was treated at UHOC.UHOC now challenges both of these conclusions.As for the first step of the inquiry — namely, whether Mr.Weaver triggered the “pre-existing condition” exclusion byreceiving “treatment or services” within three months prior tohis Plan eligibility date of December 24, 1990 — we find thatthe EBC’s determination was reasonable in light of theavailable evidence. It is undisputed that Mr. Weaver visitedhis physician, Dr. Kumar, on September 28, 1990, and that heprovided a blood sample for testing that day. Plainly, then,Mr. Weaver received medical treatment or services within thethree-month period prior to December 24, 1990.UHOC, however, challenges the EBC’s finding that thecondition for which Mr. Weaver received treatment onSeptember 28, 1990, was the same “pre-existing condition”for which he subsequently received treatment at UHOC inMarch through June of 1991. In reaching this conclusion, theEBC obtained and considered two separate and independentmedical opinions, both of which indicated that the conditiondiagnosed in early 1991 was a continuation of the conditionfor which Mr. Weaver sought treatment in September of1990. (J.A. at 543-44.) In addition, in its review uponremand, the EBC heard a presentation from UHOC’s counsel,and was provided an opinion from UHOC’s medical expert,Dr. Lawrence Kass, stating that it was “uncertain” whether theanemia diagnosed by Dr. Kumar in September of 1990“eventually evolved” into myelodysplasia, and that it wouldbe “only speculative” to so conclude. (J.A. at 391.)No. 98-4061University Hospitals v.Emerson Electric Co., et al.199Although Plan participants are required to pay certain deductiblesand co-pays, there is nothing in the record to indicate that any suchparticipant contributions would significantly reduce the burden on thePlan if it were determined that the Plan must pay UHOC’s claim.Given all these express references to the date a participant’scoverage commences, we cannot help but place significanceon theabsenceof any such language in the three-monthtreatment-free provision at issue here. If we were to view thePlan as “impliedly” including the additional qualificationimposed by the EBC, we would sanction an inconsistentreading and permit the Plan to have it both ways. Under theEBC’s interpretation, a Plan participant triggers the “preexisting condition” exclusion by accepting any treatment orservices atanytimewithin the three months prior to his Plancoverage date. Yet, in the EBC’s view, no significanceattaches to any decision by a Plan participant toforegotreatment during this same three-month period; suchdecisions, we are told, count only if madeafterthe Plancoverage date.We cannot accept this attempt to impose an additional andone-sided limitation not stated in the Plan itself. This isparticularly so where, as we have noted, the Plan is largelyfunded by Defendant/Appellee Emerson Electric and the EBCis appointed by Emerson’s Board of Directors, so that theEBC has an evident self-interest in seeing that UHOC’s rathersizable claim is not paid.9Moreover, the rule ofcontraproferentumprecludes the EBC from finding an “ambiguity”in the Plan’s three-month treatment-free provision, and theninvoking its discretionary power to “construe” this provisionin the Plan’s favor. There is no ambiguity here: the provisionin question includes no limitation beyond the requirement ofthree months without treatment.This leads us to the second suggested basis for the EBC’sdecision: that, following his visit to Dr. Kumar in lateSeptember of 1990 which triggered the “pre-existingcondition” exclusion, Mr. Weaverneverwent three months18University Hospitals v.Emerson Electric Co., et al.No. 98-40618Likewise, the SPD requires only that “you haven’t had any chargesfor this illness or injury for 3 months,” and does not further specify thatthis three-month period must follow the date of Plan coverage.coverage of expenses incurred in connection with a preexisting condition, a participant must be “free of treatment forthe pre-existing illness or injury for 3 months.” On its face,this language is satisfied byanythree-month period withouttreatment, whether it falls entirelyafterthe Plan eligibilitydate or extends into the 90-day periodbeforean employee iscovered by the Plan.8It is not a permissible act of“construction” to augment this language with the additionalqualifier that a participant must be “free of treatment . . . for3 monthsafter the effective date of Plan coverage.” Rather,the terms of the Plan must be construed “according to theirplain meaning, in an ordinary and popular sense,”Perez, 150F.3d at 556, and those terms simply do not impose therequirement that a participant not seek treatment for threemonthsafterhe is covered by the Plan.The implausibility of the EBC’s interpretation is amplyillustrated through comparison with other Plan language, alsorelating to “pre-existing conditions,” thatdoescompute timeperiods by reference to a participant’s date of coverage. Forexample, the Plan defines a “pre-existing condition” as one“for which a covered individual received treatment or servicesor took prescribed drugs during the three month periodimmediately preceding the effective date of suchindividual’s coverage under this Plan.” (J.A. at 609(emphasis added).) The Plan further provides that coverageof a pre-existing condition will commence once theparticipant “has been covered under this Plan for oneyear.” (J.A. at 625 (emphasis added).) Similarly, the SPDstates that a pre-existing condition is one “for which you weretreated or took prescribed medicines within 3 monthsbeforeyour coverage began,” and that medical expenses will bepaid for such a condition once “you have beencovered underthis Planfor a year.” (J.A. at 157 (emphasis added).)No. 98-4061University Hospitals v.Emerson Electric Co., et al.155UHOC argues that these expert opinions necessarily are “tainted”by our ruling in the prior appeal that the EBC’s initial decision might haverested upon a definition of “pre-existing condition” not found in the Planor the SPD. As the District Court observed in rejecting this argument,however, these medical opinions do not turn on matters of Planinterpretation or any particular definition of “pre-existing condition,” butinstead are based upon analysis of Mr. Weaver’s medical history to seewhether his treatments before and after December 24, 1990 were directedat the same or different medical conditions. Once the medical expertsweighed in on this issue, it was left to the EBC to decide whether Mr.Weaver’s particular interactions with medical personnel in the threemonths before December 24, 1990 constituted “receiv[ing] treatment orservices or t[aking] prescribed drugs” within the meaning of the Plan’sdefinition of a “pre-existing condition.”Given this range of medical opinions and evidence beforethe EBC, we cannot say that its determination on this pointwas arbitrary and capricious. In particular, where the EBC’sdecision enjoys the support of two independent medicalopinions, it is sufficiently grounded in reason and evidence tosatisfy the “least demanding form of judicial review,” thearbitrary and capricious standard.Davis, 887 F.2d at 693(internal quotations and citation omitted). Although UHOC’smedical expert reached a different conclusion, completeconsensus is not required to establish a reasoned basis for anadministrative decision. Indeed, even UHOC’s expert wasunwilling to say that the anemia suffered by Mr. Weaver inSeptember of 1990 was altogether unrelated to themyelodysplastic syndrome that ultimately led to his death; hestated only that any such connection was “uncertain” and“speculative.” The EBC could rationally have elected insteadto heed the opinions of two other experts, both of whomviewed the evidence in Mr. Weaver’s medical history assufficient to make this connection.5The next step in the EBC’s inquiry, however, is moreproblematic. All are agreed that Mr. Weaver was not coveredunder the Plan for a year prior to his treatment at UHOC, sothat he did not satisfy the first of the two conditions for Plancoverage of a pre-existing disease. The EBC also found that16University Hospitals v.Emerson Electric Co., et al.No. 98-40616As Judge Nelson notes in his dissent, our decision in the priorappeal of this case included a footnote tersely stating, without discussion,that the Plan’s three-month treatment-free provision did not “appl[y] tothe matter at hand.”University Hosps. of Cleveland v. Emerson Elec. Co.Benefit Plan, No. 93-4924, slip op. at 3 n.1 (6th Cir. Dec. 22, 1994).Notably, in the present appeal, the Plan does not even mention this earlierstatement, much less argue that we have already ruled upon theapplicability of the three-month treatment-free provision. Similarly, whileJudge Nelson quotes this footnote, he elects not to rely on the “law of thecase” doctrine in his dissent. Having considered the matter, we do notbelieve that this statement represents the “law of the case,” where ourearlier ruling did not address the merits of or reasoning behind the EBC’sinitial denial of benefits, but instead rested on the limited ground that theEBC might have erroneously relied on language not found in the Planitself. As we have observed, the “law of the case” doctrine is “limited tothose questions necessarily decided in the earlier appeal.”Hanover Ins.Co. v. American Eng’g Co., 105 F.3d 306, 312 (6th Cir. 1997).7The dissent sees “no room for doubt” that this construction was theone adopted by the EBC in denying UHOC’s claim. This conclusion isbased on the deposition testimony of one EBC member, James Draeger;the EBC’s written decision includes no such statement of its reasoning.Our decision inWilkins,supra, 150 F.3d at618, however, precludes usMr. Weaver did not satisfy the second condition, stating in itsJune 7, 1995 decision that “the evidence further establishesthat Mr. Weaver had not been free of treatment for the preexisting condition for the three month period as required bythe terms of the Plan.” (J.A. at 768.) We find insufficientsupport in the record to sustain this determination, even underthe deferential “arbitrary and capricious” standard of review.6While the EBC’s decision is stated in somewhat conclusoryfashion, the Plan suggests two possible rationales for thisdecision, and argues that either is adequate to sustain it. First,we are told that the EBC “construed the Plan as requiringparticipants with a pre-existing disease to be free of treatmentfor a three month periodafter the effective date of coverageby the Planin order to receive benefits for the pre-existingdisease.” (Defendants/Appellees’ Appeal Br. at 25-26(emphasis added).)7Given the EBC’s discretionary authorityNo. 98-4061University Hospitals v.Emerson Electric Co., et al.17from considering evidence, such as Draeger’s testimony, that is not partof the administrative record.Indeed, we should be all the more reluctant to stray from theadministrative record where, as here, the proffered evidence is oneperson’s post hoc explanation of an administrative body’s decision. In ananalogous situation, we do not look to post-enactment statements oflegislators when determining the meaning of statutes.SeeMichiganUnited Conservation Clubs v. Lujan, 949 F.2d 202, 209-10 (6th Cir.1991). More importantly, it strikes us as problematic to, on one hand,recognize an administrator’s discretion to interpret a plan by applying adeferential “arbitrary and capricious” standard of review, yet, on the otherhand, allow the administrator to “shore up” a decision after-the-fact bytestifying as to the “true” basis for the decision after the matter is inlitigation, possible deficiencies in the decision are identified, and anattorney is consulted to defend the decision by developing creative posthoc arguments that can survive deferential review. The concerns inherentin this scenario are even more pronounced where, as here, theadministrator has a financial incentive to deny benefits. To depart fromthe administrative record in this fashion would, in our view, invite moreterse and conclusory decisions from plan administrators, leaving room forthem — or, worse yet, federal judges — to brainstorm and invent variousproposed “rational bases” when their decisions are challenged in ensuinglitigation. At a minimum, if we permit such rehabilitation of theadministrative record, there no longer is any reason why we should notapply a more searchingde novoreview of the administrator’s decision.Having said this, we do not mean to imply that Mr. Draeger’stestimony fails to accurately reflect the basis for the EBC’s decision. Thepoint is, we simply cannot tell from the text of the decision itself, norfrom the administrative record. Ideally, that text should be the principalpoint of reference in our review of a challenged denial of benefits.in matters of Plan interpretation, the Plan argues that we mustdefer to this construction of the three-month treatment-freerequirement. If this proposed construction is accepted, itfollows that the EBC properly denied UHOC’s claim, as it isundisputed that Mr. Weaver sought treatment within twoweeks after he became eligible for Plan benefits.Upon reviewing the plain language of the Plan, however,we find that the EBC has exceeded its power tointerpretthePlan, and instead has effectivelyrewrittenit. To trigger