* Pursuant to Local Rule 47.5, the Court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_______________

No. 95-30537

(Summary Calendar)

_______________

DIANA J PAHAL,

Plaintiff-Appellant

and 

MICHAEL PAHAL,

Plaintiff,

versus

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY,

Defendant-Appellee.

_______________________________________________

Appeal from the United States District Court

For the Western District of Louisiana

(93-CV-1696)

_______________________________________________

March 7, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Plaintiff Diana J. Pahal appeals the district court's grant of

summary judgment denying her ERISA claim brought to recover

benefits under an accidental death and disability plan. We affirm.
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I

Pahal, an employee of State Farm Mutual Auto Insurance Company

("State Farm"), suffered a serious neck injury at work in 1984.

Although she continued to experience physical difficulties as a

result of the injury, Pahal returned to work shortly after the

accident and remained an employee of State Farm until the end of

1991. Approximately ten months after her injury, Pahal enrolled in

the Accidental Death and Disability plan ("the AD&D plan"), a

supplemental benefits plan which was wholly funded by employee

contributions and administered by State Farm. The AD&D plan

provided coverage for "accidental injuries," defined as "bodily

injury caused by accident occurring while the policy is in force."

Six years after her initial injury, Pahal suffered a ruptured

disk which required corrective surgery. She did not return to work

after surgery, and was terminated upon the expiration of her

medical leave. Pahal applied for "permanent and total disability"

benefits under the AD&D plan. Upon review, the plan administrator

denied her application. Pahal resubmitted her claim for review by

an employee panel, and it was again denied. Pahal then filed suit

in district court under the Employee Retirement Income Security Act

of 1974 ("ERISA"), seeking judicial review of State Farm's denial

of benefits under the AD&D plan, pursuant to 29 U.S.C. § 1132

(a)(1)(B). The district court granted summary judgment in favor of

State Farm. Pahal filed a timely notice of appeal.

II

Summary judgment is proper where the record reveals that there
 

1 Pahal contends that the district court erred by not applying the twoprong test for abuse of discretion articulated in Dennard v. Richards, 681 F.2d

306, 314 (5th Cir. 1982). Application of this test is not mandatory. Chevron

Chem. v. Oil, Chemical and Atomic Workers Local Union 4-447, 47 F.3d 139, 145

(5th Cir. 1995); Duhon v. Texaco, Inc., 15 F.3d 1302, 1307 n.3 (5th Cir. 1994);

see also Trahan v. BellSouth Telecommunications, Inc., 847 F. Supp. 54, 56 (W.D.

La. 1994) (noting that two-prong test has been utilized exclusively in cases

involving plan interpretation). Thus, the district court did not err by not

applying the Dennard two-prong test.

-3-

is no genuine issue as to any material fact, and the moving party

is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548,

2552, 91 L. Ed. 2d 265 (1986). We review the district court's

grant of summary judgment de novo and apply the same standard of

review as the district court. Duhon v. Texaco, Inc., 15 F.3d 1302,

1305 (5th Cir. 1994). Where the benefit plan grants an

administrator or fiduciary discretionary authority, the district

court properly reviews the plan administrator's denial of benefits

for abuse of discretion. Sweatman v. Commercial Union Ins. Co., 39

F.3d 594, 601 (5th Cir. 1994); 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).1 Pursuant to its

fiduciary duty as plan administrator, State Farm must provide a

"full and fair review" of claim denials. 29 U.S.C. § 1133(2);

Pierre, 932 F.2d at 1557.

Pahal claims that the plan administrator erred in denying her

claim for benefits on the ground that she had not experienced an

accidental injury during the plan's coverage period. In evaluating

whether the plan administrator abused its discretion, the court is

limited to the evidence before the plan administrator at the time
 

2 Pahal alleges that the district court erroneously refused to consider

the deposition of Dr. Robert Wharen, in which he speculates that Pahal's injury

may not have been directly caused by the 1984 accident. This claim is without

merit. As noted above, the court is limited to the evidence that was before the

plan administrator. Moore, 993 F.2d at 102. Dr. Wharen's deposition was taken

only after the second denial of Pahal's claim for benefits, and was therefore not

included in the evidence considered by the plan administrator.

 

3 Pahal contends that State Farm was operating under a conflict of

interest because it acted as plan administrator, and should therefore have

obtained independent medical reviews to ascertain the date of Pahal's injury.

Our precedent establishes that independent review is not required where, as in

this case, all necessary information is otherwise available. See Salley v. E.I.

DuPont de Nemours & Co., 966 F.2d 1011, 1015 (5th Cir. 1992) (holding that plan

administrator may rely on treating physician's reports unless reports fail to

provide all necessary information). Without discussion, Pahal also argues that

State Farm breached its fiduciary duty to her. We decline to review issues

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the factual determinations were made. Southern Farm Bureau Life

Ins. Co. v. Moore, 993 F.2d 98, 102 (5th Cir. 1993). In the

instant case, the evidence before the plan administrator included:

(1) multiple accident report and disability claim forms, completed

by Pahal herself, listing the date of injury as March 24, 1984; (2)

the medical report of Dr. Roy G. Clay, one of Pahal's treating

physicians, who reported that Pahal remained symptomatic after the

1984 injury and opines that "since she was asymptomatic prior to

the injury, and since her symptoms have focused upon this area, it

is not unreasonable to implicate the injury as the causative

factor"; (3) the medical report of Dr. Arias Cox, one of Pahal's

evaluating physicians, which states that Pahal experienced

persistent neck problems following the 1984 injury, and concludes

that the 1991 surgery was necessary to correct the 1984 neck

injury; and (4) Dr. Robert Wharen's statement of disability.2

We conclude that the record supports the plan administrator's

determination that Pahal did not experience an "accidental injury"

during the period of her coverage under the AD&D plan.3 In order
raised on appeal that are not adequately developed. Bank One, Texas, N.A. v.

Taylor, 970 F.2d 16, 27 (5th Cir. 1992), cert. denied, ___ U.S. ___, 113 S. Ct.

2331, 124 L. Ed. 2d 243 (1993).

 

4 Pahal also contends that State Farm improperly denied her benefits

because the policy did not exclude pre-existing conditions. This argument lacks

merit. The terms of the plan))an "occurrence" plan))necessarily exclude preexisting conditions by requiring that the "accidental injury" have occurred

during the coverage period. The policy also specifically excludes injury caused

by "sickness, illness, or bodily infirmity."

-5-

to qualify for benefits under the plan, Pahal must have suffered a

"bodily injury caused by accident occurring while the policy is in

force." In light of the evidence before the plan administrator,

most notably Pahal's own statements and the reports of her treating

physicians, we find that it was not an abuse of discretion for the

plan administrator to conclude that Pahal's injury occurred in

1984, prior to her enrollment in the AD&D plan.4

 

III

For the foregoing reasons, the district court's grant of

summary judgment is AFFIRMED.