The Honorable Richard H. Kyle, United States District Judge 1 for the District of Minnesota, sitting by designation. No. 96-1876

Alton Cash, * * Appellee, * Appeal from the United States * District Court for the Eastern v. * District of Arkansas. * Wal-Mart Group Health Plan, * * Appellant. *

Submitted: December 9, 1996 Filed: February 26, 1997
Before FAGG and LOKEN, Circuit Judges, and KYLE, District Judge. 1

KYLE, District Judge.
Appellee Alton Cash’s (“Cash”) wife was an employee of Wal-Mart , making Cash eligible for health benefits under Wal-Mart’s Group Health Pla n (“the Pla n”). The Plan appeals from the order of the district cour t granting Cash’s motion for summary judgment; the district court overturned the decision of the Plan’s Administrative Committee (“the Committee”) whic h had deni ed benefits to Cash. The Committee had found that Cash’ s diverticulitis was a pre-existing condition based on his previous diagnosi s of diverticular disea se. As such, Cash was not eligible for reimbursement for the medical expenses he had incurred. The di strict court disagreed and awarded Cash his clai med benefits. After a careful review of the record, we reverse the judgment of the district court an d direct entry of judgment in favor of the Plan.Diverticular disease is a disease of the sigmoid colon in 2 which bulging pouches (diverticula) in the gastrointestinal wall push the mucosal lining through the surrounding muscle. Diverticular disease has two clinical forms: (1) diverticul osis , in which diverticula are present but do not cause symptoms; and (2) diverticul itis , at issue here, in which diverticula are inflamed and may cause potentially fatal obstruction, infection, or hemorrhage. See Appellant’s App., Ex. H. -2- I. Background

Undisputed Facts

Before the district court, the parties stipulated to the followin g facts:

On the advice of Dr. Michael Koone, Cash periodically ha d colono scopic examinations performed by Dr. Dean Kumpuris. Following a colonoscopy performed in August of 1992, Dr. Kum puris’ report to Dr. Koone noted Cash’s “extraordinary severe diverticular disease for someone of his age.” 2

In Jan uary of 1993, Cash became entitled to health benefits i n accordance with the terms of the Plan. In August of 1993, he wa s hospitalized complaining of severe abdominal pain. Upon admittance to th e hospital, Cash stated that he had been told he had diverticular disease. Dr. Kumpuris attended to Cash during this hospit al stay. Upon discharging Cash, Dr. Kumpuris recorded a discharge diagnosis of diverticulitis.

Cash subm itted a claim for the costs of his hospitalization an d treat ment. After reviewing the relevant medical documentation, th e Com mittee denied the claim, finding that the expenses incurred were th e result of a pre-existing condition.

The P lan contained the following definition of “pre-existin g condition”:-3- Any charge with respect to any PARTICIPANT for any ILLNESS , INJ URY or symptom (including secondary conditions an d complications) which was medically documented as existing, or for which medical treatment, medical service, presc riptions, or other medical expense was incurred within 12 months preceding the EFFECTIVE DATE of these benefits as to that PARTICIPANT , shall be considered PRE- EXISTING and shall not be eligible for be nefits under this PLAN, until the PARTICIPANT has bee n continuouslycovered by the PLAN 12 consecutive months. (Preexisting conditions include any diagnosed or undiagnose d condition).
This language also appeared twice in the Summary Plan Description mad e available to participants in accordance with the provisions of the Employe e Retirement Income Security Act of 1974 (“ERISA”).
Cash sought further review of his cl aim. He submitted a letter from Dr. Kumpuris acknowledging Cash’s diverticular disease but denying th e existence of diverticulitis prior to his August 1993, hospital visit. In this letter, Dr. Kump uris stated that Cash “has never had . . . a problem with an infection in the diverticulum until this occasion.”
In accordance with the Plan’s appeal process, Cash’s claim was then subm itted to Dr. William D. McKnight for further consideration. Dr

. McKnight recommended overturning the denial of Cash’s claim. He noted tha t other than Dr. Kumpuris’ notation of severe diverticular disease, there wa s “no evidence in the record of [Cash] having seena physician for abdominal pain, or diverticulitis in twelve months that pr eceded the effective onset of t he group health plan.” Dr. McKnight noted that although Cash ha d “documented diverticular disease based on numero us colonoscopies for polyp surveillance[,] [t]he presence of diverticular d isease does not constitute
a di agnosis of diverticulitis, and the first clear evidence of acut e diverticulitis as a diagnosis did not emerge until August, 1993.”-4- In May o f 1994, Dr. McKnight’s recommendation was forwarded to the Committee. The Committee concluded that Dr. McKnight had based his opinio n
on the ab sence of a prior diagnosis of the condition for which benefit s
were c laimed, rather than on the Plan’s language defining pre-existin g condition. The Committee declined to follow the recommendation and upheld denial of Cash’s claim.

When n otified of the Committee’s decision. Cash obtained a n attorn ey, who argued that “[d]iverticulitis is such a commo n
occurrence that it is neither an illness, injury nor symptom an d that the infection would not be secondary, but primary.”

The C ommittee forwarded Cash’s medical records and th e language of the Plan to Dr. James Arkins for further review. Dr

. Arkins recommended denying the claim. Because a person cann ot have diverticulitis without first having diverticular disease, he opined that “diverticulitis is an exacerbation of a preexisting con dition, specifically, diverticular disease.”

In Oct ober 1994, Wal-Mart notified Cash that his claim wa s again denied, explaining that “the existence of diverticula in the sigmoid colon was the condition which existed within the one year period prior to [Cash’s] becoming effective under the Plan. Th e diverticulitis (inflammation o f the diverticula) [was] denied as a complication and secondary condition of the presence of dive rticula in the wall of the colon.”

Procedural History Cash filed a complaint in stat e court, alleging that Wal-Mart
was acti ng in bad faith by refusing to pay his medical expenses

. Asserting that ERISA was Cash’ s exclusive remedy, Wal-Mart removed the case to federal court. Both parties moved for summar y judgment. The district court granted Cash’s motion, concluding-5-

that the Committee’s decision to deny his benefits was unrea sonable and constituted an abuse of discretion.
In this appeal, Wal-Mart asserts: 1) the district court err ed in applying the de novo standard of review when assessing th e Committee’s decision; 2) the district court erred in considering
an affidavit from Cash’s physician that was not presented to th e Com mittee; 3) the Committee’s interpretation of the Plan wa s reasonable; and, therefore, 4) the district court erred in denying the Plan’s motion for summary judgment and granting Cash’s motion for summary judgment.

II. Discussion

Standard of Review
We review a grant of summary judgment de novo

. Donaho v. FMC Corp. , 74 F.3d 894, 897 (8th Cir. 1996), citing LeBus v
. Northwestern Mut. Life Ins. Co. , 55 F.3d 1374, 1376 (8th Cir

. 1995 ). Thus, in the case at bar, we review de novo the distric t court’s application of the app ropriate standard dictated by ERISA.
ERISA itself does not specify a standard of review; however, the Supreme Court has held that a reviewing court should use a de
novo standard of review unless the plan gives the “administr ator or fiduciarydiscretionary authority to determine eligibility fo r benefits or to construe the terms of the plan.” Id. (quotin g Fireston e Tire & Rubber Co. v. Bruch , 489 U.S. 101, 115 (1989)) ; Wilson v. Prudential Ins. Co. of Am. , 97 F.3d 1010, 1013 (8th Cir. 1996). If the plan gives such discretionary authority, the court reviews the plan administrator ’s decision for abuse of discretion. Donaho , 74 F.3d at 898.The Plan states in relevant part: 3 The PLAN herein expressly gives the ADMINISTRATIVE COMMITTEE discretionary authority to resolve all questions concerning the administration, interpretation or application of the PLAN, including, without limitation, discretionary authority to determine eligibility for benefits or to construe the terms of the PLAN in conducting the review of the appeal. When making its initial determination pursuant to the claim denial and appeals section of the plan document, the PLAN shall also have such discretionary authority. Appellant’s App., Ex. H, pp. 175-76 (Wal-Mart Associates’ Health Plan Document pp.52-53).
-6- It is undisputed that the language of the Plan i s discre tionary. The district court properly found that the pla n 3 ad ministrator’s decision should be reviewed under the abuse o f discretion standard. We review the district court’s applica tion of the deferential standard de novo

. Id. (citing Bolling v. El i Lilly & Co. , 990 F.2d 1028, 1029 (8th Cir. 1993)).
The proper inquiry under the deferential standard is whether “the plan administrator’s decision was reasonable; i.e. supported by substantial evidence.” Id. at 899. While the word “reas onable” possesses numerous connotations, this Court has rejected any such definition that would “permit a reviewing court to reject a discretionarytrustee decision with which the court simpl y disagrees[.]” Id. (quoting Coxv. Mid-American Dairymen, Inc. , 965 F.2d 569, 572 (8th Cir. 1992)). The Committee’s decision will be deemed reasonable if “a reasonable person could have reached a similar decision, given the evidence before him, not that a reasonable person would have reached that decision.” Id. If th e decision is supported by a reasonable explanation, it shouldnot be disturbed, even though a diffe rent reasonable interpretation could have been made. See id.-7-

In determining whether a commi ttee’s interpretation of a plan is reasonable, this circuit ut ilizes the five-factor test outlined in Finley v.Special Agents Mut. Benefit Ass’n , 957 F.2d 617 (8t h Cir. 1 992). See Donaho , 74 F.3d at 899 n.9.; see also Buttram v
. Central States, S.E. & S.W. Areas Health & Welfare Fund , 76 F.3 d 896 , 901 (8th Cir. 1996) (applying Finleyfive-factor test t o evaluate reasonableness under deferential review); Lickteig v

. Business Men’s Assurance Co. o f Am. , 61 F.3d 579, 583-84 (8th Cir. 1995) (noting that deferential review of plan’s interpretatio n “requires us to examine” the Finley factors). These factors are: 1) whether the Committee’s interpretation is consistent with th e goals of the Plan; 2) whether the in terpretation renders any language in the Plan meaningless or internally inconsistent; 3) whether th e Committee’s interpretation conflicts with the substantive o r proced ural requirements of the ERISA statute; 4) whether th e Committee has interpreted the relevant terms consistently; and 5) whether the interpretation is contrary to the clear language of the Plan

. See Finley , 957 F.2d at 621; Buttram , 76 F.3d at 901

. District courts should apply all five factors, or explain why a particular factor is inapplicable. Lickteig , 61 F.3d at 584.

In making its evaluation, the court does not substitute it s own weighing of evidence for that of the Committee. See Bol ling v. Eli Lilly & Co. , 990 F.2d 1028, 1029 (8th Cir. 1993). To do s o would be to ignore the appropriate deferential standard of review and impose an improper de novo review. See Cox , 965 F.2d at 573. Moreover, review under the deferential standard is limited “ to evidence that was before” the Committee. Collins v. Central States S.E. & S.W. Health & Welfare Fund , 18 F.3d 556, 560 (8th Cir

. 1991). Even when reviewing a plan’s decision de novo , courts are discouraged from considering “evidence in addition to tha t presented” to the Committee. Donatelli v. Home Ins. Co. , 992 F.2d 763, 765 (8th Cir. 1993). The purpose of this caveat is to “ensure expeditious judicial review of ERISA benefit decisions and to keepThe affidavit was prepared over 15 months after the Committee 4 had made its final determination. -8- district courts from becoming substitute plan administrators .” Id.

Discussion

The District Court’s Review

The Plan alleges that while the district court articulated t he abu se of discretion standard in its analysis, it, in fact , reviewed the Committee’s decision de novo . We agree.

In its review of the Committee ’s decision, the district court
con sidered the January 11, 1996 affidavit of Dr. Kumpuris, whic h ha d not been submitted to the Committee. In that affidavit, Dr

. 4 Kumpuris opined that “the fact that you have diverticula does not mean that you will have diverticulitis. Millions and millions of Americ ans have diverticular changes in their colon and the vas t
ma joritywill never have diverticulitis.” Cash , No. LR-C-94-837 , slip. op. at 8. The district court “accept[ed] that represen tation” to support its finding that Cash was entitled to judgment as a matter of law. See id.

In reviewing Dr. Kumpuris’ affidavit, the district cour t acknow ledged that it could only consider “evidence the committe e had before it when it made its decisions.” Cash v. Wal-Mart Health Plan , No. LR-C-94-837, slip op. at 7 (E.D. Ark. Feb. 21, 1996) , (ci ting Oldenberger v. Central States S.E. & S.W. Areas Teamste r Pension Fund , 934 F.2d 171 (8th Cir. 1991)). However, the cour t stated that while it could not consider the factual represen tations in the affidavit, it could “consider [Dr. Kumpuris’] explanation of the med ical issues in this case.” Id. We disagree with th e dist rict court’s implicit assertion that these explanations ar e somehow not “evidence” outside the permissible scope of defe rentialThe district court noted that this assertion was “undoubtedly 5 true.” Cash , No. LR-C-94-837, slip op. at 8. -9- revie w. See, e.g. , Davidson v. Prudential Ins. Co. of Am. , 95 3 F.2d 1093, 1095 (8th Cir. 1992) (noting that administrative record
was “replete with medical reports, physicians statements , vocational assessments and other evidence ” bearing on appellant’s abil ityto work, and characterizing additional report of neuro

psychiatrist as “evidence” ).

We determine that the district court conducted a de nov o review. It impermissibly consi dered the affidavit of Dr. Kumpuris, weighed this evidence against that before the Committee, and then
ac cepted Dr. Kumpuris’ contentions over the opinion before th e Committee. This process clearly exceeded the scope of deferential review. See, e.g. , Bolling , 990 F.2d at 1029-30 (finding district court conducted de novo review when it construed evidence in light most favorable to the appellant, faulted the Committee for it s conduc t, and held that conclusions formed by appellant’s doctor s yea rs after relevant injury were binding on Committee); Cox , 96 5 F.2d at 573 (noting that district court’s substitution of its own weighi ng of conflicting evidence for that of the committee’ s
con stituted an improper de novo review). Further support for ou r conclusion that the district court conducted a de novo review i s its failure to utilize the Finleytest in its analysis.

The Committee’s Decision We now review the Committee’s decision, applying th e deferential standard and the Finleytest. The issue before th e Commit tee was whether Cash’s diverticulitis was a pre-existin g condition based on his previou s diagnosis of diverticular disease. To support its conclusion that it was, the Committee primaril y relie d on the opinion of Dr. Arkins, who stated that one canno t have diverticulitis without first having diverti cular disease. We 5We note that Cash’s arguments to this Court consist of 6 debunking the testimony of Dr. Arkins; reiterating the testimony of Dr. Kumpuris, which, he alleges, contains nothing “new”; and asserting that the district court applied the appropriate standard of review. As it is not our province to reweigh the evidence before the Committee, we must rely on the testimony of Dr. Arkins, irrespective of Cash’s criticism of its validity. Since we have already determined that Dr. Kumpuris’ testimony was erroneously considered by the district court, and that the district court conducted a de novo review, Appellee’s other arguments are equally unavailing. -10- are not allowed to reweigh the evidence before the Committee, and th us are constrained to rely on Dr. Arkin’s opinion as well. 6 Therefore, our task is to determine whether it was reasonable for the Committee to conclude that the presence of a conditio n (di verticular disease) which is a necessary precursor to a late rillness (diverticulitis), means that the later condition was preexistin g within the meaning of the Plan. We find that such a conclusion is reasonable.

The first of the five Finleyfactors is whether th e Comm ittee’s interpretation was consistent with the goals of th e Plan. See Finley , 957 F.2d at 621. The stated purpose of the Plan is “to provide to Participants and their Beneficiaries certai n welfare benefits described herein.” Appellant’s App. at 15, Article I, Section 1.2 of the Plan. Th e intent of the Plan document is “to clearly define the health benefits provided for the PARTICIP ANTS in this PLAN. It will describe e ach aspect of these benefits and the el igibilityrequirements for PARTICIPANTS.” Appellant’s App. a t 173, Introduction to Wal-Mart Associates’ Health Plan Docume nt. The Plan goes on to define pre-existing condition, stating tha t par ticipants with such conditions are not eligible for benefit s under the Plan until they have been continuously covered by th e Plan for twelve consecutive months. Id. We agree with Appe llant’s argume nt that the “obvious purpose of the pre-existing conditio n exclusion is to insure the actuarial soundness” of the Plan.-11-

Second, we examine whether the Committee’s interpretation of the pre-existing condition exclusion conflicted with th e requirements of the ERISA statute. See Finley , 957 F.2d at 621. We find that it did not. This circuit has upheld pre-existin g condition exclusions under ERISA. See Kirk v. Provident Life & Accident Ins. Co. , 942 F.2d 504, 506 (8th Cir. 1991) (upholdin g district court’s finding that appellant had a pre-existin g condition, and rejecting argument that ERISA violates the Seventh Amendm ent). Nothing presented here convinces us that this cas e represents a unique situation warranting a contrary determination.
The remaining three Finley factors: 1) whether the Committee ’s in terpretation renders any language in the Plan meaningless o r internally inconsistent; 2) whether the Committee has interpreted the wo rds at issue consistently; and 3) whether the Committee’ s int erpretation is contrary to the clear language of the Plan , Finley , 957 F.2d at 621, can all be addressed through a n examination of the meaning of the terms in the Plan’s defini tion of pre-existing condition.
The Plan defines “pre-existing condition” as follows: Any ch arge with respect to any PARTICIPANT for an y ILLNESS, INJURY or symptom (including secondar y conditions and complications) which was medicall y documented as existing, or for which medical treatment, medical service, prescriptions , or other medical expense was incurred within 12 months preceding the EFFECTIV E DATE of these benefits as to that PARTICIPANT, shall be cons idered PRE-EXISTING and shall not be eligible fo r benefits under this PLAN, unti l the PARTICIPANT has been continuously covered by the PLAN 12 consecutive months. (Pre-existing conditions include any diagnosed o r undiagnosed condition).
The Committee gave the following explanation of its reason fo r reje cting Cash’s benefits: “the existence of diverticula in th e sigmoid colon was the condition which existed within the one year period prior to [Cash’s] becoming effective under the Plan. Th e diverticulitis (inflammation o f the diverticula) [was] denied as a-12-

complication and secondary condition of the presence of dive rticula in the wall of the colon.”

The Plan did not define the terms within the pre-existin g condit ion exclusion. In such circumstances, “[r]ecourse to th e ordina ry, dictionary definition of words is not only reasonable , but may be necessary.” Finley , 957 F.2d at 622 (quoting Centra l States, S.E. & S.W. Areas Pension Fund v. Independent Fruit & Produce Co. , 919 F.2d 1343, 13 50 (8th Cir. 1990)). “[W]ords are to be given their plain and ordinary meaning as understood by a reasonable, average person.” Id. Thus, we turn to the dictio nary to aid our analysis. See Finley , 957 F.2d at 622 (using dictionary to determine ERISA claim).
According to Webster’s Third New International Dictionary , a “complication” is “a secondary disease, or condition developing in the course of a primary disease either as a result of the primary diseas e or arising from independent causes.” Webster’s Third Ne w Intern ational Dictionary465 (3d ed. 1986). A “condition” is “ a mode or state of being” or “something that exists as an occa sion of something else : a circumstance that is essential to the app earance
or occurrence of something else.” Id. at 473. “Secondary” i s defined as “immediately derived from something original, primary,
or basic : dependent on or following something fundamental o r first,” or “not first in order of occurrence or development” o r “dependent or conseq uent on another disease.” Id. at 2050.

At the o utset, we again note that it is undisputed that on e cannot have diverticulitis without first having diverticula r disease. A “complication” is a “secondary disease.” One need s diverticular disease to develop diverticulitis. Cash ha d diverticular disease and eventually developed diverticulitis

. Therefore, we cannot say that it was unreasonable for the Co mmittee to have determined that Cash’s diverticulitis was a complica tion ofNeither party argues that, in the case at bar, the Committee 7 has somehow deviated from its standard applicable definitions of the relevant terms. -13- his diverticular disease, and thus his diverticulitis was a pre

existing condition as defined by the Plan.

Likewise, diverticulitis could reasonably be considered a
se condarycondition of diverticular disease. Since diverticula r diseas e is necessary to the later development of diverticulitis ;
a “condition” is “essential to the appearance or occurrence o f
some thing else,”; “secondary” means “dependent or consequent o n another disease,” it is not unreasonable to construe diverti culitis
as a secondary condition of Cash’s diverticular disease. Unde r eithe r of the above constructions of the terms of the Plan, th e Committee’s decision was consi stent with the clear language of the Plan. The Committee’s finding does not appear to render an y language in the Plan meaningless or internally inconsistent, nor is there any indication that the Committee has not consistentl y interpreted the relevant terms. 7

In light of the undisputed facts, and an evaluation of th e Fin leyfactors, when the evidence before the Committee is viewe d deferentially, we cannot say t hat the Committee’s decision denying Cash b enefits was unreasonable. Accordingly, we reverse th e district court’s order and direct the entry of judgment in f avor of the Plan.

A true copy.

Attest:

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