REVISED

United States Court of Appeals,

Fifth Circuit.

No. 97-30452

Summary Calendar.

Annie DOWDEN, also known as Annie J. Dowden, Plaintiff-Appellant,

v.

BLUE CROSS & BLUE SHIELD OF TEXAS, INC., Defendant-Appellee.

Sept. 19, 1997.

Appeal from the United States District Court for the Western

District of Texas.

Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

Appellant Annie Dowden (Dowden) brought suit against Appellee

Blue Cross & Blue Shield of Texas, Inc. (Blue Cross) for an alleged

breach of a policy obligation to pay benefits for expenses incurred

in treatment for silicone breast implant complications. Dowden

complains on appeal that the district court erred in granting

summary judgment against her, holding that the Employment

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

governs the facts in this case, and that Blue Cross rationally

determined that the medical expenses which Dowden incurred were not

medically necessary, and therefore, not covered under the insurance

policy. We affirm.

I. JURISDICTION

The district court properly exercised subject matter

jurisdiction pursuant to 28 U.S.C. § 1441(b). A defendant may
remove a case on grounds that the plaintiff has asserted a claim

preempted by § 514(a) of ERISA. Metropolitan Life Ins. Co. v.

Taylor, 481 U.S. 58, 66, 107 S.Ct. 1542, 1547, 95 L.Ed.2d 55

(1987). ERISA comprehensively regulates, inter alia, employee

benefit welfare plans that provide medical care or benefits in the

event of sickness through the purchase of insurance. 29 U.S.C. §

1002(1); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45, 107

S.Ct. 1549, 1551, 95 L.Ed.2d 39 (1987); Memorial Hosp. Sys. v.

Northbrook Life Ins. Co., 904 F.2d 236 (5th Cir.1990).

ERISA's preemption clause dictates that ERISA "shall

supersede any state causes of action insofar as they may now or

hereafter relate to any employee benefit plan." 29 U.S.C. §

1144(a). The federal courts have broadly construed the

"deliberately expansive" language of the ERISA preemption clause.

Corcoran v. United HealthCare, Inc., 965 F.2d 1321, 1328-29 (5th

Cir.1992). A state cause of action relates to an employee benefit

plan whenever it has "a connection with or reference to such a

plan." Hubbard v. Blue Cross & Blue Shield Ass'n, 42 F.3d 942, 945

(5th Cir.1995)(quoting Corcoran, 965 F.2d at 1329). If a state law

claim addresses an area of exclusive federal concern, such as the

right to receive benefits under the terms of an ERISA plan, then

the claim falls in the province of the federal courts. Hubbard, 42

F.3d at 945.

Dowden's claim to recover medical expenses from Blue Cross

"relates to an employee benefit plan" thus falling within the scope

of ERISA's preemption provision. "It is clear that ERISA preempts

a state law cause of action brought by an ERISA plan participant or
beneficiary alleging improper processing of a claim for plan

benefits." Memorial Hosp., 904 F.2d at 245 (citing Pilot Life Ins.

Co., 481 U.S. at 48, 107 S.Ct. at 1553). Dowden was insured under

the group health insurance policy issued by her former employer.

Through the provisions of the Consolidated Omnibus Budget

Reconciliation Act of 1985, Dowden continued to participate in the

Blue Cross group policy even after she left her employment.

Dowden, as a former employee, comes under the rubric of ERISA

as a participant, 29 U.S.C. § 1002(7). She is able to assert her

claim pursuant to ERISA's civil enforcement provision, 29 U.S.C. §

1132(a)(1)(B). The Supreme Court has held that any suit falling

within this provision, even if it purports to raise only state law

claims, is necessarily federal in character by virtue of the

clearly manifested intent of Congress. Metropolitan Life, 481 U.S.

at 62, 107 S.Ct. at 1545.

We agree with the district court that Dowden claims a

violation of ERISA when she alleges a denial of benefits due under

the Blue Cross policy. A federal question exists on her claim and

the district court's exercise of jurisdiction was proper. Hubbard,

42 F.3d at 945.

II. MEDICAL NECESSITY

Dowden's theory of recovery and the summary judgment entered

against her rest upon whether Blue Cross as the plan administrator

abused its discretion in interpreting the term "medically

necessary" as expressly defined in the insurance contract.

A denial of ERISA benefits by a plan administrator is

reviewed by the courts de novo unless the plan gives the plan
administrator "discretionary authority to determine the eligibility

for benefits or to construe the terms of the plan." Duhon v.

Texaco, Inc., 15 F.3d 1302, 1305 (5th Cir.1994)(quoting Firestone

Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956,

103 L.Ed.2d 80 (1989)). Contrary to Dowden's assertion, Southern

Farm Bureau Life Insurance Co. v. Moore, 993 F.2d 98 (1993), does

not stand for the proposition that the court may look to general

principles of common law or state law absent ERISA guidance on the

interpretation of the plan. Moore states that because ERISA does

not dictate the appropriate standard of review for evaluating

benefit determinations of plan administrators, courts must first

look to the plan terms to determine if the plan administrator has

the discretionary authority to interpret the plan terms. 993 F.2d

at 100.

The abuse of discretion standard is the appropriate standard

of review to challenges to a plan administrator's interpretation of

the plan terms when that plan grants the administrator the

authority to make a final and conclusive determination of the

claim. Duhon, 15 F.3d at 1305 (citing Bruch, 489 U.S. at 115, 109

S.Ct. at 956). In applying the abuse of discretion standard, we

analyze whether the plan administrator acted arbitrarily or

capriciously. Bellaire Gen. Hosp. v. Blue Cross Blue Shield, 97

F.3d 822, 829 (5th Cir.1996).

The district court correctly concluded that the contested

plan grants Blue Cross "the exclusive and conclusive authority to

determine coverage and benefits, and to interpret provisions of the

plan, including whether treatment is medically necessary." In
pertinent part, the contract provides that "[t]he operation of the

plan requires decisions regarding eligibility and the construction

of terms. In executing this Contract, the Employer gives full and

complete authority and discretion to the Carrier to make decisions

regarding eligibility and benefits under this Contract. Such

authority and discretion includes, but is not limited to,

determination whether services, care, treatment or supplies are

Medically Necessary...." The contract also delineates which

services are medically necessary such as those "essential to,

consistent with and provided for the diagnosis or the direct care

and treatment of the condition, sickness, disease, injury, or

bodily malfunction," as well as those treatments "consistent with

accepted standards of medical practice." Because the plan vests

Blue Cross with such authority, judicial review is limited to

determining whether substantial evidence exists in the record to

support Blue Cross's decision that Dowden's treatment was medically

unnecessary or whether its refusal to pay the submitted claim was

arbitrary and capricious. Bellaire Gen. Hospital, 97 F.3d at 828

(5th Cir.1996). "An arbitrary decision is one made without a

rational connection between the known facts and the decision or

between the found facts and the evidence." Id.

Dowden carries the burden of proving that Blue Cross

arbitrarily and capriciously concluded that the medical test and

treatments were medically unnecessary and therefore not covered

under the policy. Bayles v. Central States, Southeast, & Southwest

Areas Pension Fund, 602 F.2d 97, 99 (5th Cir.1979). We agree with

the district court's finding that Dowden has not satisfied her
burden. Blue Cross evidences an established procedure and policy

for processing claims involving silicone breast implant patients.

Relying upon learned publications, Dr. Benjamin V. Carnovale, along

with other medical and legal staff, developed a written policy for

the uniform processing of the claims of silicone breast implant

patients. Consistent with the insurance contract, the policy also

enumerates which procedures are medically necessary. We agree with

the district court's finding that Blue Cross demonstrated a

reasonable basis in the record in making its determination of

non-coverage. Dr Carnovale's application of Blue Cross's

established policy and his ensuing interpretation of medical

necessity does not appear to be arbitrary and capricious,

inconsistent or evidence of a lack of good faith.

Dowden contends that in lieu of the definition expressly

provided in the contract, medically necessary treatment should be

defined by "medical experts" with great weight given to the opinion

of the attending physician. No evidence in the record exists nor

does any legal authority stipulate that an attending physician's

opinion should be granted more weight than the established policies

and procedures of the plan administrator. To grant conclusive

weight to the opinion of the attending physician would vitiate the

discretionary authority expressly granted to Blue Cross in the

contract.

Dowden further argues that the trial judge was "absolutely

wrong and unjust" to defer to Dr. Carnovale's determination that

the disputed claim was not medically necessary. Despite Dowden's

contention, it is indeed proper for the district court to exercise
deference to the plan administrator's interpretation when the plan

grants the plan administrator discretionary authority to interpret

the plan. Sunbeam-Oster Co. Group Ben. Plan v. Whitehurst, 102

F.3d 1368, 1373 (5th Cir.1996); Pierre v. Connecticut Gen. Life

Ins. Co., 932 F.2d 1552, 1562 (5th Cir.), cert. denied, 502 U.S.

973, 112 S.Ct. 453, 116 L.Ed.2d 470 (1991)("Federal courts owe due

deference to an administrator's factual conclusions that reflect a

reasonable and impartial judgment.").

Finally, Dowden's allegation that Blue Cross did not assert,

in its answer, an affirmative defense that applies to the district

court's decision, is without merit. Blue Cross affirmatively

asserted its defense that Dowden's claims were not covered by the

ERISA plan and were not medically necessary within the terms,

condition and exclusions of the policy as legally construed by the

plan administrator. Further, there is no requirement that Blue

Cross rely on a fiduciary in order to fall within the abuse of

discretion standard governing the interpretation the contract.

Blue Cross may rely on its own plan administrator to interpret the

contract of insurance. Bruch, 489 U.S. at 115, 109 S.Ct. at 956.

We find no error in the district court's holding that the

ERISA plan vests discretionary authority in Blue Cross to make

determinations as to the medical necessity of treatments. Blue

Cross did not abuse its discretion in refusing to pay Dowden's

claims under Blue Cross's interpretation of the plan terms.

AFFIRMED.