UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT BUCHANAN; ALICIA

BUCHANAN; ANDREA BUCHANAN,

Plaintiffs-Appellees,

v.

No. 97-2484

CONSOLIDATED COAL COMPANY

BENEFIT PLAN FOR UMWA

REPRESENTED EMPLOYEES; B. V.

HYLER, Plan Administrator,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

William M. Kidd, Senior District Judge.

(CA-96-62-1)

Argued: October 26, 1998

Decided: December 17, 1998

Before ERVIN and HAMILTON, Circuit Judges, and

G. ROSS ANDERSON, JR., United States District Judge for the

District of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Michael James Florio, STEPTOE & JOHNSON, Clarksburg, West Virginia, for Appellants. Rocco Samuel Fucillo, WIL-
SON, FUCILLO & SHIELDS, Fairmont, West Virginia, for

Appellees. ON BRIEF: Robert M. Steptoe, Jr., STEPTOE & JOHNSON, Clarksburg, West Virginia, for Appellants. Brent Beveridge,

Fairmont, West Virginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Consolidated Coal Company Benefit Plan for UMWA Represented

Employees (Plan) and B. V. Hyler (Plan Administrator), appeal the

district court's granting of summary judgment under the Employee

Retirement Income Security Act of 1974 (ERISA). 29 U.S.C. § 1001

et seq. The district court reversed the Plan Administrator's denial of

benefits under the Plan, concluding that the fiduciary had abused its

discretion in denying Andrea Buchanan benefits. For the reasons set

forth below, we affirm the district court's ruling.

I.

Appellee Andrea Buchanan, then 16 years old, was a beneficiary

of the Plan, resulting from her father's employment with Consolidated

Coal Company. Andrea was referred to Dr. John M. Carson, an Oral

and Maxillofacial Surgeon, for treatment of facial-skeletal deformities.

In a letter dated April 21, 1994, Dr. Carson informed the Plan that

Andrea required surgery to correct "a destructive process which interfered with the condylar1 development of the lower jaw and develop-

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1 Pertaining to the smooth, rounded eminence on the end of the lower

jaw bone which enters into the formation of the joint with the temporal

bone on the side of the skull. 2 J.E. SCHMIDT, ATTORNEY'S DICTIONARY OF

MEDICINE AND WORD FINDER C-320 (1997).

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ment of the upper jaw . . . ." Dr. Carson sought authorization for

surgical correction of Andrea's deformities because of a "pronounced

negative psychological impact on this patient as well as physical

problems to include masticatory2 insufficiency and speech problems."

Under Article III.A.(3)(e) and (11)(a)19 of the Plan, benefits are

not generally provided for dental services. One exception to the plan,

however, provides:

(e) Oral Surgery

Benefits are not provided for dental services. However, benefits are provided for the following limited oral surgical procedures if performed by a dental surgeon or general

surgeon:

. . .

Temporomandibular Joint Dysfunction, only when medically necessary and related to an oral orthopedic problem.

It is important to note that the Plan itself does not define Temporomandibular Joint (TMJ) dysfunction, nor does it provide any standards for TMJ dysfunction.3 Despite this exception, the Plan

Administrator denied authorization for the surgery because he found

no evidence that Andrea had TMJ dysfunction.

On August 26, 1994, Dr. Carson again wrote the Plan, seeking

reconsideration of the prior denial of benefits. In this letter, Dr. Carson provided the American Association of Oral and Maxillofacial

Surgeons (AAOMS) parameters for TMJ dysfunction surgery and

noted that "Andrea possess [sic] all of the above listed indications and

has suffered for years with facial pain." Dr. Carson asserted that the

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2 Pertaining to, involved in, or serving the function of chewing. 4 J.E.

SCHMIDT, ATTORNEY'S DICTIONARY OF MEDICINE AND WORD FINDER M-59

(1997).

3 The first time appellants provided any definition or standard for TMJ

dysfunction was in appellant's brief to this Court, which is outside the

scope of review.

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"[o]verwhelming evidence for this literature points to the association

between skeletal malocclusions4 and the development of TMJ dysfunction, as well as other functional deficits." After a review by the

Plan's medical consultant, Peter Collis, M.D., the Plan again denied

benefits finding no evidence that Andrea had TMJ dysfunction that

would make surgical correction medically necessary.

The Plan Administrator enclosed two prior decisions of the Plan

Trustees that supported the denial of benefits. In Resolution of Dispute (ROD) Case No. 88-255 and ROD Case No. 88-272, the Plan

Trustees denied coverage under the Plan in two separate, unrelated

cases involving TMJ dysfunction.

The Plan Trustees reviewed and upheld the denial of benefits under

the Plan.

Following exhaustion of administrative remedies, which also

resulted in a denial of benefits, the district court conducted a final

review of the administrative record. In his September 24, 1997 Order,

the district judge reversed the administrative denial of benefits for

Andrea's surgery. The district judge found that"[t]he record before

the Plan clearly shows that Andrea suffered from TMJ dysfunction,

that surgery was medically necessary, and was related to an oral

orthopedic problem." The district judge further found that "[t]here is

simply no medical evidence put forth by the Plan to support its position," but that the Buchanans, "through Dr. Carson, have documented

their claim and provided the appropriate standard of care for TMJ surgery, namely the AAOMS."

The Plan and Plan Administrator now appeal the district court's

final judgment pursuant to 28 U.S.C. § 1291.

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4 A condition in which the teeth of the upper and lower jaws do not

meet properly so that the movement of the jaws is interfered with and the

best results in the process of chewing are not attainable. 4 J.E. SCHMIDT,

ATTORNEY'S DICTIONARY OF MEDICINE AND WORD FINDER M-28 (1997).

 4
II.

The district court's entry of summary judgment is reviewed de

novo. Cole v. Keller Indust., 132 F.3d 1044, 1046 (4th Cir. 1998).

This standard applies with equal force to cases involving the denial

of benefits under ERISA. See, e.g., Brogan v. Holland, 105 F.3d 158,

161 (4th Cir. 1997).

III.

This Court has "developed a well-settled framework for review of

the denial of benefits under ERISA plans." Ellis v. Metropolitan Life

Ins. Co., 126 F.3d 228, 232 (4th Cir. 1997). Where the benefit plan

grants the administrator or the plan fiduciary discretionary authority

to determine eligibility or to construe the terms of the plan, the decision to deny benefits "must be reviewed for abuse of discretion." Id.

Under this deferential abuse of discretion standard, the administrator

or fiduciary's decision will not be disturbed if it is reasonable. Id. A

decision in this regard is "reasonable" if it is "the result of a deliberate, principled reasoning process and if it is supported by substantial

evidence." Id. (emphasis added).

In determining whether or not the fiduciary abused its discretion,

this Court has developed a five-factor test. See Brogan v. Holland,

105 F.3d 158, 161 (4th Cir. 1997) (quoting Lockhart v. UMWA 1974

Pension Trust, 5 F.3d 74, 77 (4th Cir. 1993)). Specifically, the Court

must give "due consideration":

[1] to whether administrator's interpretation is consistent

with the goals of the plan; [2] whether it might render some

language in the plan meaningless or internally inconsistent;

[3] whether the challenged interpretation is at odds with the

procedural and substantive requirements of ERISA itself;

[4] whether the provisions at issue have been applied consistently; [5] and of course whether the fiduciaries' interpretation is contrary to the clear language of the plan.

Id. In light of the Lockhart five-factor test, we are convinced that the

fiduciary abused its discretion.

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First, the administrator's interpretation is wholly at odds with providing benefits under the Plan. Given the severe emotional and physical problems suffered by Andrea, the decision to deny her claim is

patently offensive to the Plan's goals to provide health benefits.

Second, the denial of benefits also makes the plain language of the

Plan meaningless. While it is undisputed that dental benefits are not

normally covered by the Plan, the Plan itself provides an exception

for TMJ dysfunction. The blanket denial of claims under this exception renders this exception useless; it gives the appearance of coverage without actually providing such coverage.

Third, the challenged interpretation is at odds with the procedural

requirements of ERISA itself. The Plan Administrator failed to comply with the procedural requirements of 29 C.F.R.§ 2560.503-1,

which provides that

(f) Content of Notice. A plan administrator . . . shall provide to every claimant who is denied a claim for benefits

written notice setting forth in a manner calculated to be

understood by the claimant:

(1) The specific reason or reasons for the denial;

(2) Specific reference to pertinent plan provisions on

which denial is based;

(3) A description of any additional material or information

necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; and

(4) Appropriate information as to the steps to be taken if

the participant or beneficiary wishes to submit his or her

claim for review.

29 C.F.R. § 2560.503-1(f)(1)-(4); see also 29 U.S.C. § 1133. The Plan

Administrator's denial of Andrea's claim did not state the specific

reasons for the denial, but only the conclusory statement that Andrea

was not covered under the Plan. The record before this Court is

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devoid of any evidence that the Plan Administrator notified the

Buchanans of any additional information necessary to perfect their

claim or why such information was necessary. The record is similarly

devoid of any attempts by the Plan Administrator to inform the

Buchanans of the steps required for review of the denial of their claim.5

Fourth, while it is undisputed that the Trustees have been consistent in their interpretation of the TMJ exception, such consistency

weighs against them where the Plan itself does not define TMJ dysfunction.

Finally, the fiduciary's interpretation is contrary to the plain meaning of the Plan. The Plan itself does not define TMJ dysfunction nor

does it provide any standards for guidance. Indeed, the Buchanans'

physician, Dr. Carson, provided the only standards in this case when

he informed the Plan of the AAOMS standards for TMJ surgery. Dr.

Carson, as the treating physician, clearly stated that Andrea suffered

from TMJ dysfunction. In addition, the treating physician, an Oral

and Maxillofacial Surgeon, was in a far better position to examine and

diagnose Andrea's condition than was the Plan's medical consultant,

Peter Collis. Therefore, the Plan abused its discretion in denying

Andrea's benefits.

The Plan argues that its decision to deny benefits was not an abuse

of discretion because the Plan provides certain"`external standards'

. . . to which the Trustees refer to ensure consistent interpretation and

application of the various plans that come within their purview." The

Plan goes on to cite its own RODs as an example of these "external

standards."

Aside from the fact that these external standards carry no precedential weight with this Court, the Plan cannot rely on its own previous

decisions to deny benefits under a Plan for which they offer no defini-

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5 While normally such a failure to comply with ERISA's procedural

guidelines would require this Court to remand the case to the Plan

Administrator for a "full and fair" review, a remand for further action is

unnecessary where the evidence clearly shows that the Plan abused its

discretion. See Weaver v. Phoenix Home Life Mut. Ins. Co., 990 F.2d

154, 159 (4th Cir. 1993).

 7
tions and no guidance for TMJ dysfunction, except to state that benefits were denied. This circular reasoning cannot stand. There is clearly

an overwhelming distinction in this case because the treating physician, Dr. Carson, provided the only standards by which to judge this

claim -- the AAOMS parameters for TMJ surgery. The Plan never

challenged the validity nor the applicability of these standards to

Andrea's case. Additionally, these so-called "external standards" fall

outside the four corners of the policy itself and provide no notice to

potential claimants that their claim may be in peril. Hence, the Plan's

argument must fail.

IV.

For the reasons stated above, we find that the Plan abused its discretion in denying benefits to Andrea Buchanan. The judgment of the

district court is affirmed.

AFFIRMED

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