                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-2559
                        ___________________________

                                     Marc Kutten

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                     Sun Life Assurance Company of Canada

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                             Submitted: April 14, 2014
                               Filed: July 21, 2014
                                 ____________

Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
                          ____________

SHEPHERD, Circuit Judge.

       Marc Kutten sued Sun Life Assurance Company of Canada, alleging that Sun
Life improperly denied him long-term disability benefits under a disability plan
governed by the Employee Retirement Income Security Act of 1974 (ERISA). Sun
Life and Kutten filed cross-motions for summary judgment. The district court denied
Sun Life’s motion for summary judgment and granted Kutten’s motion. We reverse.
                                           I.
       Kutten was the president and a co-owner of Property Solutions Group LLC.
In 1994, Kutten was diagnosed with retinitis pigmentosa, a progressive eye disease
that can eventually lead to blindness. At his doctor’s direction and under his doctor’s
supervision, Kutten took 15,000 units a day of a non-prescribed, over-the-counter
vitamin A palmitate supplement. J.A. 431. The National Eye Institute supported
Kutten’s course of treatment, and, though his vitamin A supplements could not cure
his retinitis pigmentosa, they could slow the disease’s rate of progression.

       Prior to June 2010, Property Solutions Group offered a group disability benefit
plan through Aetna. The Aetna plan offered maximum gross benefits of $1,000 a
month. Effective June 1, 2010, Property Solutions Group purchased a new policy
with Sun Life. The Sun Life Plan (the Plan) offered maximum gross benefits of
$6,000 a month. The Plan also included an exclusion for pre-existing conditions:

      No LTD benefit will be payable for any Total or Partial Disability that
      is due to:

      ...

      6. a Pre-Existing Condition.

      Pre-Existing Condition means during the 3 months prior to the
      Employee’s Effective Date of Insurance the Employee received medical
      treatment, care or services, including diagnostic measures, or took
      prescribed drugs or medicines for the disabling condition.1

J.A. 133. If Sun Life determined that an employee had a pre-existing condition
according to the Pre-Existing Condition clause, then the employee was not entitled



      1
       A similar clause excluded coverage for any “increases in amounts of
insurance.” J.A. 133.
                                         -2-
to the benefits under the Plan. The employee was still entitled, however, to the same
level of benefits available to the employee under the Aetna plan. J.A. 134.

        On September 21, 2010, Kutten’s eye condition forced him to stop working.
He applied for long-term disability benefits under the Plan on October 6, 2010. After
initially denying Kutten’s claim, Sun Life concluded on appeal that Kutten was
“Totally Disabled.” Nevertheless, Sun Life determined that Kutten was not entitled
to the increased amount of $6,000 a month under the Plan because his retinitis
pigmentosa constituted a pre-existing condition. According to Sun Life, Kutten’s
daily use of vitamin A supplements at his doctor’s direction qualified as a “medical
treatment.” Because Kutten received his “medical treatment” during the three-month
period prior to the Plan’s effective date, the Pre-Existing Condition clause barred full
benefits.

      Kutten filed suit in February 2012. Kutten and Sun Life filed cross-motions
for summary judgment. The district court granted Kutten’s motion for summary
judgment, finding that Sun Life abused its discretion in construing the Pre-Existing
Condition clause to apply to Kutten’s taking of supplements. According to the court,
Sun Life’s broad interpretation of the phrase “medical treatment” was contrary to the
Plan’s plain language and rendered portions of the clause meaningless and internally
inconsistent. Sun Life appealed.

                                           II.
       The parties agree that the Plan grants Sun Life discretionary authority to
construe its terms. We therefore review Sun Life’s decision for abuse of discretion.
See King v. Hartford Life & Acc. Ins. Co., 414 F.3d 994, 998-99 (8th Cir. 2005) (en
banc). Applying the abuse-of-discretion standard, an “administrator’s interpretation
of uncertain terms in a plan ‘will not be disturbed if reasonable.’” Id. at 999 (quoting
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989)). In Finley v.
Special Agents Mut. Ben. Ass’n, 957 F.2d 617, 621 (8th Cir. 1992), our court

                                          -3-
developed factors to assess the reasonableness of an administrator’s decision. Under
Finley, we consider whether the “administrator’s interpretation (1) is consistent with
the plan’s goals; (2) renders any of the plan language meaningless or internally
inconsistent; (3) conflicts with the substantive or procedural requirements of ERISA;
(4) has been followed similarly in the past; and (5) is contrary to the clear language
of the policy.” Khoury v. Grp. Health Plan, Inc., 615 F.3d 946, 954 (8th Cir. 2010)
(citing Finley, 957 F.2d at 621). Though these factors “inform our analysis,” “‘[t]he
dispositive principle remains . . . that where plan fiduciaries have offered a
“reasonable interpretation” of disputed provisions, courts may not replace [it] with
an interpretation of their own—and therefore cannot disturb as an “abuse of
discretion” the challenged benefits determination.’” King, 414 F.3d at 999
(alterations in original) (quoting de Nobel v. Vitro Corp., 885 F.2d 1180, 1188 (4th
Cir. 1989)).

       This case turns on a narrow question. Was it reasonable for Sun Life to
conclude that Kutten’s vitamin A supplements constituted a “medical treatment”?
The parties focus their attention on Finley factors two and five: whether the
administrator’s interpretation renders language meaningless or internally inconsistent
and whether the interpretation is contrary to clear language of the policy. Because
these inquiries are closely related in this case, we will analyze them together.

      Kutten urges us to adopt the district court’s rationale, that because the Pre-
Existing Condition clause separates “medical treatment” from “prescribed drugs or
medicines” with the conjunction “or,” Sun Life intended to exclude all “drugs or
medicines” from the phrase “medical treatment.” Kutten argues if “prescribed drugs
or medicines” are excluded from the phrase “medical treatment,” then vitamin A
supplements must be excluded from the phrase as well because vitamin supplements
require even less medical intervention than “prescribed drugs or medicines.” To
construe the phrase “medical treatment” to include vitamin supplements but exclude
“prescribed drugs or medicines” would create an internal inconsistency in the Pre-

                                         -4-
Existing Condition clause, and to construe the phrase “medical treatment” as broad
enough to encompass both “prescribed drugs or medicines” and vitamin supplements
would render the phrase “prescribed drugs or medicines” meaningless.

       We decline to adopt Kutten’s rigid construction of the Pre-Existing Condition
clause. In Smith v. United Television, Inc. Special Severance Plan, 474 F.3d 1033
(8th Cir. 2007), our court refused to “mechanically interpret” every “or” contained in
an ERISA plan as disjunctive and instead opted to “interpret the word ‘or’ according
to context.” Id. at 1037 (internal quotation marks omitted). In a similar manner, we
cannot construe the Pre-Existing Condition clause to require all “prescribed drugs or
medicines” to fall outside of the phrase “medical treatment.” Drawing a sharp
distinction between “prescribed drugs or medicines” and “medical treatment” is a
virtually impossible task because “prescribed drugs or medicines,” as the words are
commonly understood, are forms of “medical treatment.” A doctor’s given treatment
plan may simultaneously qualify as both. Extending Kutten’s proposed interpretive
method—that every term in the Pre-Existing Condition clause must be given a
distinct meaning—to the entire clause would require us to give distinct meanings to
“treatment,” “care,” and “services” as well as to “drugs” and “medicines.” Focusing
on such semantics misses the larger purpose of the clause. These terms define and
clarify what constitutes a “Pre-Existing Condition” by casting a broad net over
potential types of medical intervention. See JA Apparel Corp. v. Abboud, 568 F.3d
390, 407 n.4 (2d Cir. 2009) (Sack, J., concurring) (reasoning that the “itemization of
terms” in a list “may reflect an intent to occupy a field of meaning, not to separate it
into differentiated parts” and concluding that the “rule against surplusage” should be
“applied with a grain or two of salt when examining a list of words having similar or
even overlapping meaning”).

      Our search is not for the “best or preferable interpretation” of the Pre-Existing
Condition clause’s terms. Hutchins v. Champion Int’l Corp., 110 F.3d 1341, 1344
(8th Cir. 1997). An interpretation of a term is reasonable if the interpretation

                                          -5-
conforms with ordinary meaning, which can be derived from “the dictionary
definition of the word and the context in which it is used.” Id.; see Khoury, 615 F.3d
at 955 (“‘[R]ecourse to the ordinary, dictionary definition of words is not only
reasonable, but may be necessary.’” (quoting Finely, 957 F.2d at 622)). Webster’s
Third New International Dictionary defines “Medical” as, “of, relating to, or
concerned . . . with the practice of medicine.” Webster’s Third New International
Dictionary 1402 (3d ed. 2002). “Medicine,” as used in the definition of “medical,”
is defined as “the science and art dealing with the maintenance of health and the
prevention, alleviation, or cure of disease,” and “medicine,” as a substance, is defined
as “a substance or preparation used in treating disease.” Id. Treatment is defined as
“the action or manner of treating a patient medically or surgically,” and to “treat” is
“to care for (as a patient or part of the body) medically.” Id. at 2435. These
definitions support the conclusion that the ordinary meaning of the phrase “medical
treatment” would encompass Kutten’s vitamin A supplements. The supplements are
“medical” in the sense that they prevented or alleviated the progression of Kutten’s
retinitis pigmentosa. Further, Kutten’s daily supplement regimen constituted a
“treatment” because it was the “manner,” in fact the only manner, by which Kutten
could “care for” his condition. Thus, each day he continued his doctor-recommended
regimen, he received medical treatment.

       Kutten attempts to portray Sun Life’s interpretation of the Pre-Existing
Condition clause as absurd by analogizing his vitamin regimen to other common, self-
administered and seemingly mild forms of personal healthcare such as applying
suntan lotion or eating a high-fiber diet. These analogies, however, are flawed. The
controversy’s context and the clause’s purpose enlighten our assessment of Sun Life’s
interpretation. See Hutchins, 110 F.3d at 1344. Kutten had a known, debilitating
disease for which he undertook the only treatment plan he could, at his doctor’s
direction. Though the Pre-Existing Condition clause’s literal language may not neatly
fit Kutten’s course of treatment, no one disputes that Kutten had the disease and
treated it during the relevant time period. Kutten’s analogies fail because they do not

                                          -6-
account for the fact that his treatments were in response to his retinitis pigmentosa,
a disease that otherwise qualified him for long-term disability benefits. It is
reasonable to conclude Sun Life designed the Pre-Existing Condition clause to
exclude coverage in circumstances similar to this case, where a substantial increase
in coverage coincided with a claim for long-term disability. In this sense, Sun Life’s
interpretation is consistent with the broader goals of the Plan, supporting Finley
factor one. See Cash v. Wal-Mart Grp. Health Plan, 107 F.3d 637, 643 (8th Cir.
1997). As to the remaining factors, factors three and four, we have no indication that
Sun Life’s interpretation contravenes ERISA’s requirements or that Sun Life has
taken inconsistent positions in the past.

       With the benefit of hindsight, Sun Life could have drafted the Pre-Existing
Condition clause to more clearly cover Kutten’s supplement regimen. We return,
however, to the “dispositive principle” governing our abuse-of-discretion review:
“‘[W]here plan fiduciaries have offered a ‘reasonable interpretation’ of disputed
provisions, courts may not replace [it] with an interpretation of their own.’” See
King, 414 F.3d at 999 (second alteration in original) (quoting de Nobel, 885 F.2d at
1188). In light of an ordinary understanding of what constitutes a “medical
treatment” and the purpose of the Pre-Existing Condition clause, we hold that Sun
Life did not abuse its discretion in denying Kutten’s claim for benefits under the Plan.

                                         III.
      For the reasons stated, we reverse the district court’s entry of summary
judgment and remand for the district court to enter summary judgment in favor of Sun
Life.

BYE, Circuit Judge, dissenting.

      I believe the district court properly concluded Sun Life abused its discretion
in denying Kutten long-term disability benefits. It was unreasonable for Sun Life to

                                          -7-
conclude the use of a vitamin supplement constituted medical treatment. I therefore
respectfully dissent from the decision reversing the district court.

       In my view, this is a simple case of an insurer issuing a poorly-drafted policy
and then going to significant lengths to evade its terms. My major concern is with the
expansive definition of the term “medical treatment” which the majority permits. To
me, the use of a vitamin supplement does not constitute medical treatment. While the
use of prescribed drugs and medicines generally require that a person have interacted
with a medical professional, the use of vitamin supplements requires no such medical
intervention as they are available over the counter and without a prescription. Under
Sun Life’s expansive interpretation, it is hard to imagine a scenario which would not
be covered by its Pre-Existing Condition clause. Any time a medical official gave
advice it would be considered medical treatment under Sun Life’s interpretation.
Even simple things such as getting eight hours of sleep a night, brushing one’s teeth,
exercising thirty minutes a day, or taking an aspirin for a headache would be
encompassed by this interpretation.

       The majority acknowledges “Sun Life could have drafted [its policy] to more
clearly cover Kutten’s supplement regimen,” and the policy’s “literal language may
not neatly fit Kutten’s course of treatment.” It is for precisely these reasons the
district court properly concluded Sun Life abused its discretion in denying Kutten’s
claim. The Pre-Existing Condition clause’s language simply does not cover the use
of a vitamin supplement. Of course, in hindsight, Sun Life may wish it had drafted
the Pre-Existing Condition clause in a different manner so it would apply to
conditions such as Kutten’s retinitis pigmentosa, but the clause’s language cannot be
construed to apply here.

      The flaw in the majority’s reasoning as contained is its decision is to essentially
ignore the policy language and, instead, apply its own definition of what should be
included within the Pre-Existing Condition clause. Intuitively, it may seem Kutten’s

                                          -8-
retinitis pigmentosa should fall within the ordinary definition of a pre-existing
condition. Indeed, I agree Kutten had a “pre-existing condition” in the ordinary
definition of that term. Nonetheless, Kutten did not have a “Pre-Existing Condition”
as defined by Sun Life’s policy, and such is the critical distinction Sun Life and the
majority have failed to make. We are not free to use the ordinary definition. Instead,
we must apply the specific language of Sun Life’s policy. For future policies, Sun
Life is free to revise its policy language to more clearly exclude conditions such as
retinitis pigmentosa, but in this case it should be bound by the bargain it entered into
with Kutten.

       The majority notes, “[w]ith the benefit of hindsight, Sun Life could have
drafted the Pre-Existing Condition clause to more clearly cover Kutten’s supplement
regimen.” Yet, hindsight is unnecessary when Sun Life can simply rely on a federal
court to retroactively fix its poorly-drafted policies. It is not this Court’s prerogative
to assist a plan administrator in evading its own poorly-chosen policy language.
Instead, our responsibility is to confirm that the plan administrator interprets its
policies in a reasonable manner. Because I view Sun Life’s expansive interpretation
of medical treatment as unreasonable, I respectfully dissent.
                         ______________________________




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