PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LISA CHAMPION, 

Plaintiff-Appellant,

v.

BLACK & DECKER (U.S.)

INCORPORATED; THE BLACK &

DECKER DISABILITY PLAN,  No. 07-1991

Defendants-Appellees,

and

THE BLACK & DECKER LIFE

INSURANCE PLAN,

Defendant. 

Appeal from the United States District Court

for the District of South Carolina, at Rock Hill.

Cameron McGowan Currie, District Judge.

(0:06-cv-01548)

Argued: September 23, 2008

Decided: December 19, 2008

Before NIEMEYER, Circuit Judge, HAMILTON,

Senior Circuit Judge, and T. S. ELLIS, III,

Senior United States District Judge for the Eastern District

of Virginia, sitting by designation.

Affirmed by published opinion. Judge Niemeyer wrote the

opinion, in which Senior Judge Hamilton and Senior Judge

Ellis joined.
COUNSEL

ARGUED: Nekki Shutt, CALLISON, TIGHE & ROBINSON, L.L.C., Columbia, South Carolina, for Appellant. David

L. Woodard, POYNER & SPRUILL, Raleigh, North Carolina, for Appellees. ON BRIEF: Susanna K. Gibbons,

POYNER & SPRUILL, Raleigh, North Carolina, for Appellees.

OPINION

NIEMEYER, Circuit Judge:

In this appeal, we review an ERISA plan’s discretionary

determination denying disability benefits to an employee

where the plan’s administrator is alleged to have operated

under a conflict of interest. Before the Supreme Court’s recent

decision in Metropolitan Life Insurance Co. v. Glenn, 128

S. Ct. 2343 (2008), we would have either applied a modified

abuse-of-discretion standard of review to neutralize any effect

of the conflict of interest, see, e.g., Stanford v. Cont’l Cas.

Co., 514 F.3d 354, 357 (4th Cir. 2008), or we would have

concluded that no conflict existed at all, see Colucci v. Agfa

Corp. Severance Pay Plan, 431 F.3d 170, 179-80 (4th Cir.

2005). But now, under Glenn, we must take a new approach.

Applying Glenn, we conclude that in this case a conflict of

interest did indeed exist; that we nonetheless review the

plan’s determination under the familiar abuse-of-discretion

standard; and that we consider the conflict only as a factor,

among several, in determining whether the plan’s determination was reasonable. Conducting our review in this manner,

we find that the plan in this case did not abuse its discretion,

and accordingly we affirm.

I

Lisa Champion, a former employee of Black & Decker

(U.S.) Inc. ("Black & Decker"), commenced this action under

2 CHAMPION v. BLACK & DECKER
the Employee Retirement Income Security Act of 1974

("ERISA") against the Black & Decker Disability Plan ("the

Plan") and Black & Decker as the sponsor and administrator

of the Plan. She challenges the Plan’s termination of her disability benefits after the Plan paid her benefits for a period of

30 months.

When Champion began working for Black & Decker in

1995, she came under the Plan, which Black & Decker both

funds and administers. As authorized by the Plan, Black &

Decker employed CIGNA Integrated Care as its claims

administrator, but Black & Decker retained ultimate authority

to make determinations of whether to pay disability benefits.

The Plan grants to the "Plan Manager," a Black & Decker

executive, specific powers and duties, including the responsibility "to decide all questions concerning the Plan and the eligibility of any person to participate in the Plan or to receive

benefits." It requires that the Plan Manager base his determinations on "suitable medical evidence and a review of the Participant’s prior employment history that the Plan Manager

deems satisfactory in its sole and absolute discretion."

In the proceedings before the district court, the parties stipulated (1) that the Plan gives discretion to the Plan Manager

to make determinations, such as whether Champion is to

receive the disability benefits claimed in this case, and (2) that

judicial review of any determination is to be conducted under

the abuse-of-discretion standard. The parties reserved, however, the right to argue whether the standard must be adjusted

for a conflict of interest.

Substantively, the Plan provides for the payment of disability benefits, using two different definitions of disability,

depending on how long the employee has been ill or injured.

One definition applies to benefits payable up to 30 months,

and another applies to benefits payable after 30 months. During the first 30 months, an employee is considered disabled

and eligible for benefits if the illness or injury results in the

CHAMPION v. BLACK & DECKER 3
employee’s "complete inability . . . to engage in his regular

occupation with the Employer." (Emphasis added). After 30

months, the employee is considered disabled and eligible for

benefits only if the employee is completely unable "to engage

in any gainful occupation or employment with any employer

for which the Employee is . . . reasonably qualified by education, experience or training." (Emphasis added). Additionally,

after 30 months, the Plan terminates disability benefits if the

disability was "initially attributable to a Mental Health . . .

Disability" or later "substantiated on a Mental Health . . . Disability Diagnosis."

In 1999, Champion was diagnosed with a "complex partial

seizure disorder," based in part on "epileptiform activity in the

left temporal region." Her actual epileptic seizures were

mostly of the petite mal or "absence" variety and were thereafter controlled with medication. Treating physicians noticed

that Champion also reported seizure-like events that were not

epileptic seizures. These events were sometimes characterized

as panic attacks and sometimes as "pseudoseizures." Pseudoseizures are a recognized medical diagnosis with symptoms

closely resembling epilepsy, causing physicians often to misdiagnose one as the other. Champion was also diagnosed with

various emotional and psychiatric conditions including anxiety, depression, panic attacks, and post-traumatic stress disorder. 

In January 2002, Champion had a seizure at work that

required emergency room care. Thereafter, she never returned

to work at Black & Decker. She did, however, apply for shortterm disability benefits under the Plan. CIGNA Integrated

Care assessed Champion’s condition and denied her application. Champion appealed to the Plan’s Appeals Committee,

composed entirely of Black & Decker employees, and the

Committee reversed CIGNA’s denial and awarded benefits,

which continued for 30 months.

After 30 months, CIGNA terminated benefits, concluding

that Champion’s disability resulted from mental illness and

4 CHAMPION v. BLACK & DECKER
therefore, under the Plan, no benefits were payable after 30

months. On Champion’s appeal to the Plan’s Appeals Committee, the Committee affirmed CIGNA’s decision. Champion

then retained counsel, who requested a second appeal. The

Appeals Committee granted counsel’s request and considered

additional evidence submitted by Champion, but again denied

further benefits.

Champion commenced this action under § 502 of ERISA,

29 U.S.C. § 1132, seeking disability benefits beyond the first

30 months. The district court initially found that the Plan had

abused its discretion by failing to determine whether Champion’s disabilities actually fell within the Plan’s explicit definition of "Mental Health Disability." The Plan defined a mental

health (or substance abuse) disability as one "with a primary

diagnosis in the range of 290 to 319 under the International

Classification of Diseases, 9th Revision, Clinical Modification (ICD-9-CM) promulgated by the World Health Organization." But, because the district court was also unable to find

evidence sufficient to grant Champion benefits outright, it

ordered a remand to the Plan (1) to determine the proper ICD9-CM classification of Champion’s disability, and (2) to give

Champion the opportunity to submit additional evidence.

On remand, the Plan’s two consulting physicians reviewed

the record, including the records provided by Champion’s

treating physicians, and concluded that Champion’s pseudoseizures were properly classified as 300.11 under the ICD9-CM, thus falling within the Plan’s 290 to 319 range for a

mental health disability. The physicians also concluded that

when they considered only Champion’s non-mental-health

conditions, she would be able to work because her physical

seizures were infrequent and manageable with medication.

Champion also submitted additional evidence, including a

physician’s opinion that she was indeed totally disabled by

her epilepsy and pseudoseizures. With this evidence before it,

the Plan determined that Champion’s pseudoseizures had a

mental health diagnosis and therefore her disability was subCHAMPION v. BLACK & DECKER 5
stantiated on a mental health disability. It reaffirmed its termination of Champion’s benefits after the initial 30-month

period.

The district court again reviewed the Plan’s determination

in light of the augmented record and concluded that the Plan

had not abused its discretion in denying further benefits.

Champion appealed and now contends that (1) the Plan operated under a conflict of interest and therefore judicial review

should be modified to give the Plan less deference; (2) in any

event, the Plan’s determination was unreasonable; and (3) the

district court abused its discretion in ordering a remand to the

Plan to allow for augmentation of the record.

II

After the district court decided this case and Champion

appealed, the Supreme Court decided Metropolitan Life Insurance Co. v. Glenn, 128 S. Ct. 2343 (2008), which clarified

when a conflict of interest exists and how a conflict is to be

taken into account. Glenn altered several aspects of judicial

review of ERISA plan determinations in the Fourth Circuit.

In Glenn, the Court began by restating the foundational

principles of judicial review of ERISA plan determinations.

First, it pointed out, a reviewing court must be guided by

principles of trust law, taking a plan administrator’s determination as "a fiduciary act (i.e., an act in which the administrator owes a special duty of loyalty to the plan beneficiaries)."

128 S. Ct. at 2347. Second, courts must "review a denial of

plan benefits under a de novo standard unless the plan provides to the contrary." Id. at 2348 (internal quotation marks

and citation omitted). Third, when the plan grants the administrator "discretionary authority to determine eligibility for

benefits, . . . a deferential standard of review is appropriate."

Id. (emphasis and citations omitted). And fourth, "[i]f a benefit plan gives discretion to an administrator or fiduciary who

is operating under a conflict of interest, that conflict must be

6 CHAMPION v. BLACK & DECKER
weighed as a factor in determining whether there is an abuse

of discretion." Id. (internal quotation marks, citations, and

emphasis omitted).

Focusing particularly on the fourth principle, the Glenn

Court held that when the plan administrator serves in the dual

role of evaluating claims for benefits and paying the claims,

the dual role itself creates a conflict of interest. 128 S. Ct. at

2346, 2348. The Court found in the case before it that because

an insurance company served as both administrator and

insurer of the plan—as administrator it had discretionary

authority to determine claims and as insurer it paid the claims

—the insurance company had a conflict of interest. Id. at

2346. But it also noted that the same conflict is created when

an employer serves in a similarly dual role. Id. at 2348.

The Court held, however, that the presence of a conflict of

interest did not change the standard of review from the deferential review, normally applied in the review of discretionary

decisions, to a de novo review, or some other hybrid standard.

128 S. Ct. at 2350. Indeed the Court stated that the conflict of

interest should not otherwise lead to "special burden-of-proof

rules, or other special procedural or evidentiary rules, focused

narrowly upon the evaluator/payor conflict." Id. at 2351.

Rather, it held that when reviewing an ERISA plan administrator’s discretionary determination, a court must review the

determination for abuse of discretion and, in doing so, take

the conflict of interest into account only as "one factor among

many" that is relevant in deciding whether the administrator

abused its discretion. Id. The process that the Court envisioned is similar to that followed by courts generally in applying any multiple-factor test to review for reasonableness. As

the Court said:

In such instances, any one factor will act as a tiebreaker when the other factors are closely balanced,

the degree of closeness necessary depending upon

the tiebreaking factor’s inherent or case-specific

CHAMPION v. BLACK & DECKER 7
importance. The conflict of interest at issue here, for

example, should prove more important (perhaps of

great importance) where circumstances suggest a

higher likelihood that it affected the benefits decision, including, but not limited to, cases where an

insurance company administrator has a history of

biased claims administration.

Id.

The principles announced in Glenn alter some of our

court’s earlier approaches to reviewing discretionary determinations made by ERISA administrators allegedly operating

under a conflict of interest. For example, before Glenn, when

we found a conflict of interest, we applied a "modified"

abuse-of-discretion standard that reduced deference to the

administrator to the degree necessary to neutralize any untoward influence resulting from the conflict of interest. See,

e.g., Stanford, 514 F.3d at 357. And before Glenn we defined

a conflict of interest more narrowly. See Colucci, 431 F.3d at

179-80.

As it now stands after Glenn, a conflict of interest is readily

determinable by the dual role of an administrator or other

fiduciary, and courts are to apply simply the abuse-ofdiscretion standard for reviewing discretionary determinations

by that administrator, even if the administrator operated under

a conflict of interest. Under that familiar standard, a discretionary determination will be upheld if reasonable. See Guthrie v. Nat’l Rural Elec. Coop. Assoc. Long-Term Disability

Plan, 509 F.3d 644, 650 (4th Cir. 2007). And any conflict of

interest is considered as one factor, among many, in determining the reasonableness of the discretionary determination. In

Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare

Plan, 201 F.3d 335 (4th Cir. 2000), we identified eight nonexclusive factors that a court may consider, including a conflict

of interest:

8 CHAMPION v. BLACK & DECKER
(1) the language of the plan; (2) the purposes and

goals of the plan; (3) the adequacy of the materials

considered to make the decision and the degree to

which they support it; (4) whether the fiduciary’s

interpretation was consistent with other provisions in

the plan and with earlier interpretations of the plan;

(5) whether the decisionmaking process was reasoned and principled; (6) whether the decision was

consistent with the procedural and substantive

requirements of ERISA; (7) any external standard

relevant to the exercise of discretion; and (8) the

fiduciary’s motives and any conflict of interest it

may have.

Id. at 342-43 (footnote omitted).

Accordingly, we review the Plan’s determination in this

case for abuse of discretion, taking into account any conflict

of interest as one of the factors considered in determining reasonableness.

III

Turning to Champion’s appeal, she devotes the first half of

her brief to arguing that a conflict of interest exists in this case

because Black & Decker "had a significant financial interest

in the decision to terminate disability benefits to Champion."

She argues accordingly that under our pre-Glenn decisions,

judicial review of the Plan’s determination should be under a

"modified abuse of discretion standard." See, e.g., Stanford,

514 F.3d at 357. She contends that the conflict of interest was

substantial and was manifested by the Plan’s several procedural deficiencies in determining her claim.

In view of Glenn, decided after the district court had ruled

and this appeal had been taken, we conclude that the Plan did

indeed operate under a conflict of interest. The Plan sponsor,

Black & Decker, served in the dual role of both evaluating

CHAMPION v. BLACK & DECKER 9
and paying Champion’s claims. This dual role alone fulfills

the requirements for finding a conflict under Glenn. See 128

S. Ct. at 2346, 2348. But the consequence of this finding is

not to modify the standard of review, as urged by Champion,

but rather to consider the conflict as but one among many factors in determining the reasonableness of the Plan’s discretionary determination. We do this by considering the relevant

factors, as identified in Booth. See 201 F.3d at 342-43.

IV

Acting under the discretion conferred by the Plan’s terms,

the Plan terminated payment of disability benefits to Champion after 30 months, concluding in its final affirmation of the

decision (1) that "her physical condition — her seizure disorder — did not render her unable to engage in a gainful occupation," as her physical seizures were "infrequent" and often

followed her failure to comply with her medication regimen;

(2) that she also suffers from a range of mental health conditions, including pseudoseizures, for which the proper ICD-9-

CM code was 300.11, "which is within the range of the definition of Mental Health in the Plan"; and (3) that while Champion’s pseudoseizures and depression "may have rendered her

unable to engage in a gainful occupation after the initial 30

month period of Disability," she was not entitled to benefits

under the Plan after the 30-month period because such benefits for a disability "substantiated by a Mental Health condition," were limited to 30 months. Thus, the validity of the

Plan’s determination to deny Champion further benefits turns

on whether the 300.11 classification was proper.

The district court concluded that there was substantial evidence to justify the Plan’s characterization of Champion’s

pseudoseizures as a mental health disability, i.e., a condition

falling within the ICD-9-CM code range of 290 to 319, and

that Champion could not demonstrate that she was unable to

engage in "any gainful occupation" absent consideration of

her pseudoseizures and other mental health problems. While

10 CHAMPION v. BLACK & DECKER
the court considered the opinions of various doctors that were

submitted to the Plan, it found Dr. Ebeling’s opinion most

enlightening on the matter. As the court stated:

Dr. Ebeling provided a full and persuasive explanation of his reasons for characterizing Champion’s

pseudoseizures as psychiatric in origin. Most critically, he referred to Dr. Gettlefinger’s contemporaneous characterization of the cause of the

pseudoseizures as being related to other mental

health causes (anxiety and depression). He also:

noted Champion’s own statements which suggest her

pseudoseizures were of psychological origin; supported his opinion as to the nature of the pseudoseizures with a specific reference to a medical text; and

explained how his characterization of the pseudoseizures fit with Champion’s significant psychiatric difficulties.

In light of Dr. Ebeling’s opinion and the other evidence in the

record, the court concluded that "it was not unreasonable for

the Plan to conclude that Champion’s pseudoseizures should

be characterized as psychiatric in origin . . . . Given this conclusion, it follows that the Plan acted within its discretion in

determining that Champion’s pseudoseizures came within the

Plan’s definition of a mental health condition," thus making

it reasonable for the Plan to find that "Champion was not disabled by any non-mental health condition."

On Champion’s appeal, we review the district court’s decision de novo, employing the same standards governing district

court review of a plan administrator’s discretionary decision.

See Evans v. Eaton Corp. Long Term Disability Plan, 514

F.3d 315, 321 (4th Cir. 2008).

There is no dispute that if Champion’s pseudoseizures fall

within the ICD-9-CM code range of 290 to 319, they are

treated as a mental health disability that affects whether Plan

CHAMPION v. BLACK & DECKER 11
benefits continue after 30 months. But the parties vigorously

dispute whether her pseudoseizures fall within the 290 to 319

range. And the record on this issue is ambiguous.

During the extensive diagnostic monitoring of Champion

performed at the Medical College of Georgia, physicians

observed seizures both psychogenic and physical in origin.

The professionals treating her over the years used a wide

range of ICD-9-CM diagnostic codes. Some fell between 290

and 319, and some did not, while many of the professionals

did not assign ICD-9-CM codes at all. Champion’s primary

neurologist wrote in 2004, "she continues to have spells, the

dilemma is which of them are epilepsy and which of them are

pseudoseizures related to anxiety and depression." (Emphasis

added).

The Plan’s consulting physician Dr. Ebeling analyzed

Champion’s medical record, which included the notes of her

treating physicians, and he found that code 780.39, which

Champion contends should have applied to her pseudoseizures, was inappropriate as an actual diagnosis. He explained

that the 780 to 799 code range refers to "symptoms, signs and

ill-defined conditions," and the ICD-9-CM diagnosis guide

submitted by Champion confirms that this is, indeed, the

heading for the entire 780 to 799 range. Dr. Ebeling found her

treating physicians’ notations and her overall medical history

most consistent with a 300.11 diagnosis for her pseudoseizures.

Champion did produce extensive evidence that her seizures

and pseudoseizures were attributable to physical causes,

including past physical abuse. But that evidence did not

advance her argument that the pseudoseizures themselves

should not fall within the code range of 290 to 319. The

Plan’s definition of mental health disability unambiguously

states that the 290 to 319 range governs "regardless of underlying cause for such disorder, whether such underlying cause

12 CHAMPION v. BLACK & DECKER
is mental health, substance abuse, organic, physical or medical in origin." (Emphasis added).

In view of this record, it was reasonable for the Plan to

have concluded that her pseudoseizures fell within the Plan’s

mental health diagnosis definition. But this still leaves the

question of whether the Plan properly terminated benefits

after 30 months on the ground that Champion’s inability to

work was "substantiated on" a mental health disability diagnosis.

Champion produced no evidence showing or tending to

show that she could substantiate her disability claim on just

her epilepsy. She produced persuasive evidence that she is

disabled by her pseudoseizures and epilepsy. But because the

Plan reasonably concluded that her pseudoseizures fell within

the definition of mental health disability, her evidence does

not support a claim that her epilepsy alone rendered her

unable to work within the Plan’s definition of disability.

In contrast, the Plan provided substantial reasons to believe

that Champion would not be disabled without her mental

health disabilities. Dr. Ebeling concluded from the record that

Champion’s physical seizures were "relatively infrequent, not

intractable, and would not preclude her from any occupation

which does not require her to operate machinery or work at

unprotected heights." In accepting this conclusion, the Plan

acted reasonably, especially when Champion’s own correspondence with the Plan supports the conclusion.

Taking into consideration the first seven Booth factors, to

the extent they are relevant, we find no evidence to support

Champion’s claim that the Plan abused its discretion. The

Plan applied the language defining benefits, as well as the

limitations on those benefits; it considered the materials supplied by the professionals who treated Champion; it fully

cured any initial procedural irregularities; and it engaged in a

CHAMPION v. BLACK & DECKER 13
decisionmaking process that was ultimately reasoned and

principled.

This brings us to the eighth and final Booth factor —

whether the Plan’s determination is rendered unreasonable by

the effects of its conflict of interest. Although the district

court did not address the effect of any alleged conflict of

interest, it did find that the Plan did not act in a biased manner. It noted that even though the Plan initially made procedural errors requiring a remand, "[t]he errors [did] not . . .

appear to have been based on any improper intent." The court

found it significant that

Plaintiff’s initial claim was denied by a [third party

administrator] which lacked a direct financial interest in the matter, and that the initial denial was

reversed by the Plan based on only minimal submissions by Plaintiff. It is also significant that the Plan

allowed Plaintiff an additional untimely appeal, after

her appeals were otherwise concluded and upon the

appearance of counsel. During the final appeal, the

Plan presented the issue to two independent experts

whose advice the Plan followed in its ultimate denial

decision. While the court has found errors in the process and in Plan interpretation, it finds no evidence

of bad faith or improper intent.

When we heed Glenn’s instruction on considering the conflict factor, we can find no evidence raising a concern that

would increase the weight of the conflict. See 128 S. Ct. at

2351. Indeed, when the Plan overruled the initial denial of

short-term disability benefits by CIGNA, the third-party

administrator, it manifested an approach demonstrating an

unbiased interest that favored Champion, making the conflict

factor "less important (perhaps to the vanishing point)." Id. In

the same vein, the Plan also voluntarily granted Champion a

second appeal after she hired a lawyer, allowing her to present

further matters. This second appeal, which was not required

14 CHAMPION v. BLACK & DECKER
by the Plan language, increased the likelihood of an accurate

final decision, thereby also reducing the conflict factor "to the

vanishing point." Id. Champion provides no contrary evidence

tending to show that the Plan’s dual role "affected the benefits

decision." Id.

Thus, the evidence does not support giving such weight to

the conflict that it "act[s] as a tiebreaker when the other factors are closely balanced." Glenn, 128 S. Ct. at 2351. Indeed,

the factors are not closely balanced here, and the conflict factor in particular approaches "the vanishing point." Id. The

Plan provided a well-reasoned justification for its decision

denying further benefits, based on the record and the Plan language. Utilizing the combination-of-factors method employed

by Booth and endorsed in Glenn, we conclude that the Plan

did not abuse its discretion in terminating Champion’s disability benefits after 30 months.

V

Champion also contends that the district court erred by

ordering a remand to the Plan to determine the appropriate

ICD-9-CM code for her pseudoseizures, rather than simply

ordering that the Plan continue her benefits after the 30-month

period.

We agree that "remand should be used sparingly." Elliott v.

Sara Lee Corp., 190 F.3d 601, 609 (4th Cir. 1999) (internal

quotation marks and citation omitted). But we review a district court’s decision whether to remand for abuse of discretion. Sheppard & Enoch Pratt Hosp., Inc. v. Travelers Ins.

Co., 32 F.3d 120, 125 (4th Cir. 1994). In conducting such a

review, we recognize that district courts require flexibility to

augment records, as "[s]ome ERISA cases involve complex

medical issues crucial to the interpretation and application of

plan terms." Quesinberry v. Life Ins. Co. of North America,

987 F.2d 1017, 1025 (4th Cir. 1993).

CHAMPION v. BLACK & DECKER 15
The district court here faced just such an issue in ascertaining the appropriate ICD-9-CM classification code for Champion’s pseudoseizures. The court also recognized that if the

pseudoseizures were a mental health problem, then the record

justifying benefits beyond 30 months was sparse and inadequate. Accordingly, it ordered the remand to permit the Plan

to make the proper classification and to permit Champion to

supplement the record. We find that in the circumstances of

this case, the district court acted within its discretion in

remanding to the Plan, and therefore we reject Champion’s

argument.

The judgment of the district court is

AFFIRMED.

16 CHAMPION v. BLACK & DECKER