*THE HONORABLE ALFRED T. GOODWIN, United States Circuit

Judge for the Ninth Circuit, sitting by designation.

___________

No. 95-2372

___________

Jerry Buttram; Juston Buttram, *

*

Appellants, *

*

v. *

*

Central States, Southeast and *

Southwest Areas Health and *

Welfare Fund, *

* Appellee. *

* Appeal from the United States

------------------ * District Court for the

* Eastern District of Missouri.

Central States, Southeast and *

Southwest Areas Health and *

Welfare Fund, Trustees of an *

Illinois Trust, ** Appellee, ** v. ** Ford Motor Company, a Delaware *

corporation; Elmer C. *

Oberhellmann, ** Defendants, ** Jerry Buttram; Juston Buttram, ** Appellants. *

__________

 Submitted: December 12, 1995

 Filed: February 16, 1996 __________

Before MAGILL, GOODWIN,* and MURPHY, Circuit Judges. ___________
 1

The Honorable George Gunn, United States District Judge for

the Eastern District of Missouri, adopting the review and

recommendation of the Honorable William S. Bahn, United States

Magistrate Judge for the Eastern District of Missouri.

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MAGILL, Circuit Judge.

Jerry Buttram appeals the district court's1 grant of summary

judgment to Central States in this action governed by the Employee

Retirement Income Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B).

Buttram alleged that Central States improperly denied him

reimbursement for home nursing care under Central States' employee

health benefits plan. Because the benefits plan gave the plan

administrator discretionary interpretive authority and the

administrator's plan interpretation denying benefits was

reasonable, we affirm.

I.

Jerry Buttram's son, Juston, suffered a severe spinal cord

injury in an automobile accident on August 17, 1984, leaving him

with quadriplegia. Juston received medical treatment at Freeman

Hospital and St. John's Hospital in Missouri and at Craig

Rehabilitation Hospital in Colorado, before returning home in 1985.

Because Jerry Buttram's employer contributed to Central States'

Health and Welfare Fund, Buttram was reimbursed $226,083.45 through

February 1989 to cover the costs of Juston's hospitalization and

institutional care.

Jerry Buttram asked Central States to pay for home nursing

care in 1985 and again in late 1987, but in 1988 Central States

denied this request. Buttram was entitled to three levels of

review of this decision. The first-level appeal was initiated by

the Buttrams and apparently denied; although Central States

normally offers a written explanation to the applicant and notifies
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the applicant of the right to further appeal this decision, there

is no proof that such notice was ever sent to Buttram. Because

Buttram did not receive notice of his right to further review, his

claims were not reviewed at a second-level appeal.

 

Nothing more was heard on this issue until 1993. In the

interim, Buttram filed suit in 1989 against Central States,

arguing, inter alia, that Central States impermissibly denied

reimbursement to the Buttrams for the cost of renovations to their

home and van, needed to accommodate Juston. In 1993, Buttram

amended this complaint to include a claim for reimbursement for

home nursing services provided by Virginia Buttram, Juston's

mother. These services included help with hygiene, dressing,

eating, and other daily living acts.

The magistrate judge ordered Buttram to pursue administrative

remedies and submit his claims to the plan trustees. In evaluating

the claim for benefits, the plan trustees relied on two reports,

dated September 9, 1993 and February 3, 1994, written by Dr. W.B.

Buckingham, the plan's reviewing physician. Dr. Buckingham noted

that "[t]he nature of a spinal cord transection is total and

permanent, and there is no known medical or surgical procedure that

will restore function below the level of transection." Appellant's

App. at 143. Any services rendered after Juston's discharge from

Craig Hospital could not restore any function and thus should be

considered custodial services. Id. Dr. Buckingham further noted

that the care at issue in this case, including help with feeding,

dressing, and hygiene, is not generally considered medical

treatment, but rather is part of the management of these patients

by the family caregivers. Dr. Buckingham analogized to the care

given to an infant which, while important to the health of the

infant, is not considered to be "medical care" as that term is

commonly used.

The plan trustee also reviewed evidence, submitted by Buttram,
 2

The trustees also denied reimbursement to the Buttrams for

the money spent renovating their house and van in order to

accommodate Juston's return home. This issue was not pursued on

appeal.

 3Prior to January 1, 1988, custodial care was defined as

care rendered to a patient who (1) has a mental or physical

disability that is expected to continue for a prolonged period of

time; (2) requires a protected controlled environment in an

institution; (3) requires assistance and support concerning the

essence of daily living; and (4) is not under active and specific

medical, surgical, or psychiatric treatment that will reduce the

disability to the extent necessary to function outside the

protected environment. Plan Section 1.18, reprinted in

Appellee's App. at 271. 

On February 11, 1988, the plan trustees amended this

definition, effective retroactive to January 1, 1988, by deleting

the first two requirements. After this date, the prohibition on

reimbursement for custodial care was applicable to Juston because

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that the care given by Virginia Buttram had helped to improve the

mental and physical condition of Juston. Specifically, to the

extent that the care permitted Juston to leave his home and

interact with his surroundings, it ensured that Juston would be

able to enjoy psychologically rewarding activities and lead a long

and productive life. However, even Dr. Simowitz, one of Juston's

treating physicians, conceded that Juston's physical condition was

irreversible and that the care given by Virginia Buttram only

prevented further debilitation. Dr. Simowitz did note, though,

that to the extent that such care prevented disease and infection,

it could "broadly" be considered "medical treatment."

On February 22, 1994, the trustees reviewed, and rejected, the

claim for home nursing services.2 The trustees based this decision

on Plan Sections 1.24(a)(3) (prohibiting reimbursement for medical

care rendered by a patient's family member); Plan Section 4.02

(prohibiting reimbursement for care that is not standard medical

care); and, for care given after January 1, 1998, Plan Section 4.16

(prohibiting reimbursement for custodial care, as defined by Plan

Section 1.18).3 The trustees noted that the care given by Virginia
institutionalization was no longer an element of custodial care.

 4The district court did not base the denial of benefits on

Plan Section 1.24(a)(3), which prohibits reimbursement for

medical care rendered by a family member.

 5Central States' health benefits plan states that "any

construction adopted by the Trustees in good faith shall be

binding upon the Union, Employees and Employers. The Trustees

are vested with discretionary and final authority in construing

plan documents of the Health and Welfare Fund." Trust Agreement,

Art. IV, § 17.

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Buttram was analogous to the care given to an infant, which,

although necessary, would not lessen Juston's physical infirmities.

The district court upheld this denial of benefits.4 Applying

an abuse of discretion standard of review, the district court

concluded that Central States' interpretation of its plan to

exclude the nursing services was reasonable. Further, performing

a precautionary de novo review of the denial, the court held that

the action was proper. This appeal followed.

II.

While ERISA itself does not specify the standard of review for

a plan administrator's determinations, the Supreme Court has held

that where a benefits plan gives the "administrator or fiduciary

discretionary authority to determine eligibility for benefits or to

construe the terms of the plan," then a court should review the

plan administrator's decision only for abuse of discretion.

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); see

also Cox v. Mid-America Dairymen, Inc., 965 F.2d 569, 571 (8th Cir.

1992), aff'd after remand, 13 F.3d 272 (8th Cir. 1993). Because it

is undisputed that the benefits plan at issue grants discretionary

interpretive authority to the plan trustees,5 we review the

benefits determination for abuse of discretion.
 6

Although all courts agree that such events trigger a less

deferential standard of review, the circuits are split on how

this lesser degree of deference actually alters the review

process. Some circuits use a "sliding scale" approach, under

which a reviewing court will always apply an abuse of discretion

standard, but it decreases the deference given to the conflicted

administrator's decision in proportion to the seriousness of the

conflict. See Doe v. Group Hospitalization & Medical Serv., 3

F.3d 80, 87 (4th Cir. 1993); Van Boxel v. Journal Co. Employees'

Pension Fund, 836 F.2d 1048, 1052-53 (7th Cir. 1987). 

Other circuits apply a "presumptively void" test, under

which a decision rendered by a conflicted plan administrator is

presumed to be an abuse of discretion unless the administrator

can demonstrate that either (1) under de novo review, the result

reached was nevertheless "right," or (2) the decision was not

made to serve the administrator's conflicting interest. See

Atwood v. Newmont Gold Co., Inc., 45 F.3d 1317, 1323 (9th Cir.

1995) (citing George T. Bogert, Trusts § 95, at 341-42 (6th ed.

1987); Brown v. Blue Cross & Blue Shield of Ala., Inc., 898 F.2d

-6-

Buttram offers two arguments in support of overturning the

plan administrator's determination. First, he contends that a

"less deferential" abuse of discretion standard should be applied

because of the presence of procedural irregularities in this case.

Second, he argues that the substantive decision denying benefits

was an abuse of discretion. We address each argument in turn.

A.

In certain situations, factors external to the actual decision

on the merits can mandate the application of a less deferential

abuse of discretion standard. Under the common law of trusts,

which is our guide in reviewing the benefits determinations of

ERISA plan trustees, see Bruch, 489 U.S. at 110-11, where the plan

trustee labors under a conflict of interest, see Restatement

(Second) of Trusts § 187 cmt. d (1959), or where, in the exercise

of his power, he acts dishonestly, see id. cmt. f, or from an

improper motive, see id. cmt. g, or he fails to use judgment in

reaching his decision, see id. cmt. h, the resulting decision may

be accorded stricter scrutiny.6 
1556, 1566-67 (11th Cir. 1990), cert. denied, 498 U.S. 1040

(1991).

This Circuit has not yet decided which of the two tests to

employ. We do not have occasion to answer the question in this 

case, however, because we conclude that the procedural

irregularities at issue are not sufficiently egregious as to

amount to evidence of abuse of discretion.

 7These procedural irregularities could, in certain

situations, also constitute circumstantial evidence of bad faith

or improper motives on the part of the plan trustees. However,

Buttram has not contended that the plan trustees acted out of bad

faith or improper motives, and so we will confine the discussion

to the lack-of-judgment analysis.

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For this heightened review to apply, the beneficiary must show

(1) that a serious procedural irregularity existed, which (2)

caused a serious breach of the plan trustee's fiduciary duty to the

plan beneficiary. See Atwood v. Newmont Gold Co., Inc., 45 F.3d

1317, 1323 (9th Cir. 1995). However, absent material, probative

evidence, beyond the mere fact of the apparent irregularity,

tending to show that the administrator breached his fiduciary

obligation, see id. (requiring plaintiff to come forward with

specific evidence of conflict of interest); see also Cuddington v.

Northern Ind. Pub. Serv. Co., 33 F.3d 813, 816 (7th Cir. 1994)

(same), we will apply the traditional abuse of discretion analysis

to discretionary trustee decisions.

Buttram notes that he never received written notice in 1988

when his benefits claim was denied, he never received his secondlevel appeal, and his third-level appeal took place seven years

after his application for benefits; we interpret these claims as

alleging that the plan trustees failed to use their judgment in

rendering the decision or that their decision was arbitrary or made

on a whim.7

 Buttram further notes that his third-level appeal

occurred only after suit had been filed and after the trustees had

moved for summary judgment, on the grounds that Buttram was not

entitled to benefits. Buttram contends that the plan trustees
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therefore acted under a conflict of interest and that the outcome

was a foregone conclusion. Neither of these contentions has merit.

Buttram did not come forward with any evidence establishing

that the plan trustees failed to use judgment in rendering their

decision. We note first that Buttram could have satisfied this

burden by providing material, probative circumstantial evidence

that left the court with serious doubts as to whether the result

reached was the product of an arbitrary decision or the plan

administrator's whim; see Restatement (Second) of Trust § 187 cmt.

h. For example, where the plan trustee does not inquire into the

relevant circumstances at issue; where the trustee never offers a

written decision, so that the applicant and the court cannot

properly review the basis for the decision; or where procedural

irregularities are so egregious that the court has a total lack of

faith in the integrity of the decision making process, a court may

infer that the trustee did not exercise judgment when rendering the

decision. Such circumstantial evidence was not offered by Buttram.

Although the procedural irregularities in this case give us

pause, they do not demonstrate that the actual decision reached in

1994 was arbitrary or whimsical. Before the plan trustees denied

the benefits application in 1994, the plan's medical consultant

twice reviewed the files and made extensive findings and

recommendations, and the trustees reviewed contrary evidence

submitted by the Buttrams in support of their application. Upon

rejecting the application for benefits after reviewing the files at

the February 22, 1994 meeting, the trustees offered a thorough

written opinion. We are not left with a firm conviction that the

denial of benefits was the result of an arbitrary decision or whim.

It is important to remember that it is not the existence of

procedural irregularities per se that will cause a court to employ

a heightened standard of review when evaluating a plan

administrator's decision. Rather, those irregularities must have
-9-

some connection to the substantive decision reached; i.e., they

must cause the actual decision to be a breach of the plan trustee's

fiduciary obligations. When, as here, the procedural

irregularities do not demonstrate that the actual decision was

reached without reflection and judgment, a deferential standard of

review is appropriate.

That the trustees conducted the third-level review after

Buttram had filed his complaint and after the trustees had moved

for summary judgment does not affirmatively show that the plan

trustees violated their fiduciary obligations by acting out of

self-interest; nor does it show that the result reached was a

foregone conclusion. Buttram has not come forward with any

evidence beyond the mere fact of the apparent conflict of interest,

which on its own is insufficient to warrant heightened review; see

Atwood, 45 F.3d at 1323. We agree with the district court that any

apparent conflict of interest would not have affected the decision

making process for, in this case, the presence of a lawsuit and the

specter of immediate judicial review would cause the trustees to be

more, not less, scrupulous in carrying out their fiduciary

obligations.

Further, Buttram's allegation that the denial of benefits was

a foregone conclusion is belied by the record. Between the filing

of the summary judgment motion and the administrative decision to

deny benefits, the trustees solicited further evidence in this

case, receiving reports from both its own medical consultant and

from the Buttrams' doctors. The issue was placed on the February

22 meeting and debated at that time, and a thorough written opinion

was offered. Buttram has offered no probative evidence that the

outcome was a foregone conclusion.

Because there was no evidence that the plan trustees failed to

use judgment in reaching their decision or that they labored under

a conflict of interest, the substantive decision will be reviewed
 8

Plan Section 1.24(a)(3) applies only to medical care given

by a family member. Because Central States argues that the care

at issue is custodial, and not medical, care, this provision only

applies in the alternative; that is, the provision applies only

if the court disagrees with Central States and determines that

the care given in fact was medical care.

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under the traditional abuse of discretion analysis.

B.

Under an abuse of discretion standard, the plan

administrator's plan construction will be upheld, if reasonable.

Finley v. Special Agents Mut. Ben. Ass'n, Inc., 957 F.2d 617, 621

(8th Cir. 1992) (citing Bruch, 489 U.S. at 111); see also

Restatement (Second) of Trusts § 187 cmt. e (trustee must act

within the bounds of reasonable judgment). This Court considers

five factors in evaluating reasonableness: (1) whether the

interpretation is consistent with the goals of the plan, (2)

whether the interpretation renders any plan language meaningless or

inconsistent, (3) whether the interpretation conflicts with the

requirements of the ERISA statute, (4) whether the administrators

have interpreted the words at issue consistently, and (5) whether

the interpretation is contrary to the clear language of the plan.

Finley, 957 F.2d at 621; see also Lutheran Medical Ctr. v.

Contractors Health Plan, 25 F.3d 616, 621-22 (8th Cir. 1994)

(applying Finley factors).

In this case, Central States argues that reimbursement for

nursing care given by Juston's mother is prohibited because the

care was given by a family member (prohibited by Plan

Section 1.24(a)(3)),8 the care amounts to custodial care

(prohibited by Plan Section 1.18), and in any event, because it is

custodial care, the care is not standard medical care (prohibited
 9

The trustees apparently rejected the conclusions of

Juston's treating physician, Dr. Simowitz, that, accepting that

preventing debilitation is the same as reducing the patient's

disability, the care at issue may broadly be defined as medical

treatment.

 10As noted above, the custodial care limitation was not

relied upon by the trustees in rejecting the application for pre1988 benefits.

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by Plan Section 4.02).

The denial of post-1988 benefits was clearly not an abuse of

discretion. First, the care given meets the definition of

custodial care, because Juston's injury will last the remainder of

his life, there is little hope for extensive recovery, and the

services rendered concern the basic activities of daily living.

Second, the trustees credited the conclusions of its reviewing

physician that the care at issue, because it concerned help with

hygiene, dressing, and eating, could not be considered medical

care, but was rather more akin to the care given by a mother to a

newborn child, and thus is not covered by the plan; see Plan

Section 4.02 (limiting coverage to standard medical care).9

The denial of pre-1988 benefits was also not an abuse of

discretion, although this is a closer question because the

custodial care limitation is not applicable.10 However, Plan

Section 4.02, which prohibits reimbursement for care that is not

standard medical care, supports the committee's determination. As

Dr. Buckingham noted, the care at issue in this case is not

generally considered to be standard medical care. In light of the

plan's policy of not providing for long-term nonmedical care, this

decision is not an abuse of discretion. Alternatively, even if the

care were standard medical care, § 1.24(a)(3), which prohibits

reimbursement for care given by a family member, would apply.

The district court correctly noted that this plan
 11The Buttrams submitted evidence that the care given by

Virginia Buttram helped Juston to more fully participate in daily

living activities. This misses the point. While this care may

be necessary, the plan was not intended to cover nonmedical care

to a person suffering from an irreversible injury. Because

Juston's physical condition at this point is irreversible,

Virginia Buttram's services could not reduce the extent of the

physical injury. The expenses incurred in this case, while

perhaps necessitated by the injuries received by Juston, are

nonetheless collateral to those injuries. They do not fall

within the ambit of the health benefits plan.

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interpretation meets the five Finley factors. The decision to deny

coverage is "consistent with the Plan's goal of not providing longterm coverage for non-medical care to a person suffering from an

irreversible injury;[11] does not render Plan language meaningless

or internally inconsistent; does not conflict with ERISA; and is

not contrary to the clear language of the Plan. Furthermore, there

is no indication that the Trustees have ever interpreted this

provision differently." Review and Recommendation at 16-17,

reprinted in Appellant's App. at 193, 208-09 (adopted by the

district court, see Mem. and Order, March 22, 1995, reprinted in

Appellant's App. at 235).

III.

We conclude that the decision of the plan trustees denying

benefits was reasonable. Accordingly, we affirm.

A true copy.

Attest:

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