           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0040P (6th Cir.)
                    File Name: 00a0040p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                             ;
                              
 UNIVERSITY HOSPITALS OF
                              
 CLEVELAND,
                              
          Plaintiff-Appellant,
                              
                                               No. 98-4061

                              
           v.                  >
                              
                              
                              
 EMERSON ELECTRIC

 ELECTRIC COMPANY BENEFIT 
 COMPANY and EMERSON
                              
                              
 PLAN,
       Defendants-Appellees. 
                             1

       Appeal from the United States District Court
      for the Northern District of Ohio at Cleveland.
    No. 92-01555—Paul R. Matia, Chief District Judge.
                    Argued: August 5, 1999
              Decided and Filed: February 1, 2000

    Before: NELSON and MOORE Circuit Judges;
                   ROSEN, District Judge.*



    *
     The Honorable Gerald E. Rosen, United States District Judge for the
Eastern District of Michigan, sitting by designation.

                                   1
2      University Hospitals v.                     No. 98-4061
       Emerson Electric Co., et al.

                    _________________
                         COUNSEL
ARGUED: Daniel W. Dreyfuss, DANIEL W. DREYFUSS
CO., Cleveland, Ohio, for Appellant. Phillip J. Campanella,
CALFEE, HALTER & GRISWOLD, Cleveland, Ohio, for
Appellees. ON BRIEF: Daniel W. Dreyfuss, DANIEL W.
DREYFUSS CO., Cleveland, Ohio, for Appellant. Phillip J.
Campanella, CALFEE, HALTER & GRISWOLD, Cleveland,
Ohio, for Appellees.
  ROSEN, D. J., delivered the opinion of the court, in which
MOORE, J., joined. NELSON, J. (pp. 25-29), delivered a
separate dissenting opinion.
                    _________________
                        OPINION
                    _________________
    ROSEN, District Judge.
                    I. INTRODUCTION
  Plaintiff/Appellant University Hospitals of Cleveland
(“UHOC”) appeals from the most recent award of summary
judgment in favor of Defendants/Appellees Emerson Electric
Company and the Emerson Electric Company Benefit Plan
(collectively, the “Plan”) in this action brought under the
Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1001 et seq. In the ruling now on
appeal, the District Court found that the Plan’s administrative
review body, the Employee Benefit Committee (“EBC”), did
not act arbitrarily or capriciously in denying a claim for health
care benefits made by UHOC as assignee of the claims of a
deceased Plan participant, Gerald Weaver. In a prior appeal,
we reversed an initial award of summary judgment to the
Plan, citing evidence in the record that the EBC had
“erroneously relied upon a provision that was not included in
No. 98-4061                    University Hospitals v.        3
                            Emerson Electric Co., et al.

the actual Plan documents.” See University Hosps. of
Cleveland v. Emerson Elec. Co. Benefit Plan, No. 93-4924,
slip op. at 4 (6th Cir. Dec. 22, 1994). Accordingly, we
ordered the matter remanded to the EBC with instructions to
reconsider UHOC’s claim in light of “the actual Plan
provisions applicable to such claim.” Id.
  On remand, the EBC once again denied UHOC’s claim, and
the District Court again affirmed that decision under the
“arbitrary and capricious” standard of review. UHOC now
raises four arguments on appeal: (1) that the District Court
erred in ruling that the EBC’s decision on remand was exempt
from the time limits set forth in the Plan for acting upon
requests for review of claim denials; (2) that the lower court
improperly disregarded the “law of the case,” as purportedly
established in our earlier decision, regarding the applicability
of the Plan’s time limits on remand to the EBC; (3) that the
EBC’s decision on remand was tainted by the same error that
led us to reverse and remand in the initial appeal; and (4) that
the EBC acted arbitrarily and capriciously in denying benefits
based upon a determination that the decedent, Mr. Weaver,
suffered from a pre-existing condition. For the reasons stated
below, we find that the EBC’s decision to deny benefits was
arbitrary and capricious, and we accordingly reverse the
award of summary judgment to the Plan.
 II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties
  As we noted in our earlier decision, there is little, if any,
factual dispute in this case. Plaintiff/Appellant UHOC
brought this ERISA action as the assignee of Gerald Weaver,
seeking to recover benefits from the Defendant/Appellee Plan
for medical services rendered to Mr. Weaver before his death
on June 3, 1991. The Plan’s administrative review body, the
EBC, has twice denied UHOC’s claim for benefits, finding
that the medical services at issue were not covered by the Plan
because they constituted treatment for a pre-existing condition
4    University Hospitals v.                    No. 98-4061      No. 98-4061                    University Hospitals v.       29
     Emerson Electric Co., et al.                                                            Emerson Electric Co., et al.

suffered by Mr. Weaver before he became eligible for Plan           Given the structure of the Pre-existing Limitation provision,
benefits.                                                        where “Pre-existing” has no meaning except in relation to the
                                                                 start of coverage and where the date used for the calculation
   Mr. Weaver began working for Automatic Switch Company         of the first two of the three time periods mentioned is clearly
(“ASCO”), a division of Defendant/Appellee Emerson               the date on which the individual becomes eligible under the
Electric Company, on September 24, 1990. He became               plan, it was not irrational for the Committee to conclude that
eligible for medical benefits under the Plan on December 24,     the drafters intended the use of the same date for calculating
1990, the ninetieth day of his employment. From March 27,        the third time period as well. This is not the only possible
1991 until his death on June 3, 1991, Mr. Weaver received        construction of the provision, but it is certainly not an
treatment at UHOC for myelodysplastic syndrome, a bone           irrational construction.
marrow disease. The principal dispute in this case is whether
Mr. Weaver received prior treatments for this disease that         The parties agree that there was no three-month period
would trigger the Plan’s “pre-existing condition” exclusion      when Mr. Weaver was treatment-free between December 24,
from coverage.                                                   1990, the date on which he became eligible for coverage, and
                                                                 June 3, 1991, the date on which he died. Accordingly, and
B. Mr. Weaver’s 1990-91 Visits to Physicians and                 because I agree with the district court that the Committee’s
   Medical Treatments                                            most recent decision was rendered pursuant to the order of
                                                                 remand and was not subject to the contractual time limits that
  On September 11, 1990, shortly before he began working         applied during the initial decision-making process, I would
for ASCO, Mr. Weaver visited his physician, Dr. Unni             affirm the challenged judgment.
Kumar, complaining of fatigue and stress. Dr. Kumar
diagnosed Mr. Weaver as suffering from anemia,
recommended a blood test, and asked Mr. Weaver to return
for further evaluation. (J.A. at 468-70.) That same day, blood
samples were taken from Mr. Weaver and submitted to a
laboratory for analysis.
  On September 28, 1990, four days after Mr. Weaver began
his employment at ASCO, Mr. Weaver again visited Dr.
Kumar to discuss the results of his recent blood test. Dr.
Kumar advised Mr. Weaver that the serum iron, folic acid,
and B-12 portions of this test were “all normal.” (J.A. at
474.) Nevertheless, in light of the previous diagnosis of
anemia, Dr. Kumar recommended that the blood test be
repeated “before we embark on a complete hematological
work-up.” (Id.) In accordance with this recommendation, a
second blood sample was taken from Mr. Weaver that day
and submitted for laboratory analysis. If this second test
28    University Hospitals v.                       No. 98-4061    No. 98-4061                   University Hospitals v.        5
      Emerson Electric Co., et al.                                                            Emerson Electric Co., et al.

489 U.S. 101, 115 (1989), and Yeager v. Reliance Standard          proved abnormal, Dr. Kumar “plan[ned] to refer [Mr.
Life Ins. Co., 88 F.3d 376, 381 (6th Cir. 1996).                   Weaver] to a hematologist.” (Id.)
  The record leaves no room for doubt as to why the                  This September 28, 1990 test revealed a number of results
Committee upheld the denial of benefits in the case at bar. As     outside the normal range, including low red blood cell and
the deposition testimony of Committee Member James                 platelet counts, low hemoglobin and hematoocrit values, and
Draeger shows, the Committee saw no reason even to                 elevated MCV and MCH levels. (J.A. at 473.) Accordingly,
consider whether Mr. Weaver had received treatment or              on October 8, 1990, Dr. Kumar called Mr. Weaver and
services during the first 90 days after September 28, 1990.        advised him to see a hematologist. (J.A. at 470.) Although
The Committee upheld the denial of benefits solely on the          there are two subsequent entries in Dr. Kumar’s records for
basis of its construction of the provisions of the Plan relating   the month of October — the first dated October 12, 1990,
to pre-existing medical conditions. And the record shows, I        scheduling Mr. Weaver for an additional blood test, and the
believe, that the Committee had a rational basis for construing    second dated October 26, 1990, reflecting Mr. Weaver’s
the provisions in the way that it did.                             refusal to submit to this additional test, (J.A. at 475) — Mr.
                                                                   Weaver declined any further treatment in October, citing a
  Addressing the Pre-existing Limitation clause in the             lack of insurance coverage that would pay for a pre-existing
Schedule of Benefits, Mr. Draeger explained at page 104 of         condition. (Id.)
his deposition transcript that “this particular provision starts
where an individual is eligible for the plan . . . .” (Mr.           Instead, Mr. Weaver elected to wait until January 8, 1991
Weaver became eligible on December 24, 1990.) The                  — two weeks after his Plan eligibility date of December 24,
exclusion for medical expenses incurred in connection with         1990 — to visit a hematology specialist as recommended by
certain pre-existing conditions, Mr. Draeger went on to            Dr. Kumar. The examining physician, Dr. Jon Reisman,
explain, continues “for a period of one year.” Draeger Depo.       diagnosed Mr. Weaver as suffering from mild anemia and
Trans. at 104-105. Once eligibility starts, in other words,        moderately severe thrombocytopenia. (J.A. at 674.) Over the
                                                                   course of the next several days, Mr. Weaver underwent a
       “[the exclusion] is going to go for one year from that      number of procedures, including additional blood and bone
       date. Or it is going to go . . . from that date for three   marrow tests, a chest x-ray, and a CT scan of his abdomen.
       months.                                                     These procedures were intended, at least in part, to rule out a
                                                                   diagnosis of myelodysplastic syndrome. (J.A. at 476.) When
  Q    From which date?                                            the results proved inconclusive, Dr. Reisman referred Mr.
                                                                   Weaver to Dr. James Weick at the Cleveland Clinic for
  A    We are talking about an individual becoming                 further evaluation. (J.A. at 671.)
       eligible under the plan, so now the individual is
       eligible. So now we are talking about one date                Beginning on February 8, 1991 and continuing until his
       [i.e., one year] from the date of eligibility, or if        death four months later, Mr. Weaver received a variety of
       the individual has been free of treatment at any            medical services and treatments at the Cleveland Clinic,
       three-month period during that particular one               UHOC, and elsewhere. His treatments at UHOC commenced
       year period of time, whichever fi[r]st occurs.”             on March 27, 1991, and resulted in total billings for medical
       Id. at 105.                                                 services in the amount of $233,829.75. Mr. Weaver
6      University Hospitals v.                     No. 98-4061     No. 98-4061                    University Hospitals v.       27
       Emerson Electric Co., et al.                                                            Emerson Electric Co., et al.

ultimately was diagnosed as suffering from myelodysplastic             2) the individual has been free of treatment for the
syndrome, a bone marrow disease in which defective stem                pre-existing illness or injury for 3 months.”
cells proliferate to the exclusion of normal cells. This disease
evolved to acute leukemia, and led to Mr. Weaver’s death on           As written, the second clause is open to conflicting
June 3, 1991 from kidney and heart failure. (J.A. at 536-37.)      interpretations. It is possible that the drafters intended to
                                                                   provide that the one-year-of-coverage requirement would be
C. The Relevant Plan Provisions                                    overridden upon the expiration of three treatment-free months
                                                                   commencing with the last treatment. Had this been their
  This case turns upon the EBC’s determination that all of the     intent, the drafters could have said so explicitly. They could
medical expenses incurred by Mr. Weaver at UHOC derived            have said, for example, that the year-of-coverage requirement
from treatments for a “pre-existing condition” as defined in       would be overridden once the individual had gone without
the Plan document, and therefore are not “covered medical          treatment for three months “from the date of the last
expenses” under the Plan. This determination rests upon the        treatment.” Unfortunately, the quoted words were not
following Plan provision, entitled “Pre-Existing Condition         included in the Pre-existing Limitation provision.
Limits”:
                                                                     It is also possible – and perhaps more likely – that the
      Hospital expenses and other medical expenses incurred        drafters intended to provide that the year-of-coverage
    in connection with a disease or injury for which a             requirement would be overridden once the individual had
    covered individual received treatment or services or took      been free of treatment for three months during that first year
    prescribed drugs during the three month period                 of coverage. Unfortunately, however, the drafters did not
    immediately preceding the effective date of such               explicitly say this either. Through inadvertence, no doubt,
    individual’s coverage under this Plan will not be              they left their intention ambiguous.
    included as covered medical expenses prior to the earliest
    of the dates shown in the Schedule of Benefits.                    Such ambiguities are almost certain to creep into a
                                                                   document as complex as this one. The drafters could, of
(Plan, § 4, ¶ 1.84, J.A. at 609.) The Plan’s Schedule of           course, have left the resolution of these inevitable ambiguities
Benefits, in turn, sets forth the terms under which a              to the courts. But they chose not to. Instead, the drafters
participant may obtain coverage for a pre-existing condition:      provided that a five-member Employee Benefit Committee
                                                                   appointed by the Emerson Electric Company’s Board of
      No benefits are payable for a pre-existing illness or        Directors should have “discretionary authority to determine
    injury for which an individual was treated or took             eligibility for benefits or to construe the terms of the Plan
    prescribed medicine within 3 months prior to coverage          . . . .” And they further provided that unless the Committee’s
    until:                                                         construction of the Plan’s terms should be “arbitrary and
                                                                   capricious” – i.e., simply irrational – the Committee’s
      1) the individual has been covered under this Plan for       decision “shall be final and non-reviewable . . . .” In the face
      one year, or                                                 of such language, it is clear that the courts have no authority
                                                                   to second-guess the Committee unless the Committee has
      2) the individual has been free of treatment for the         acted irrationally. See Firestone Tire & Rubber Co. v. Bruch,
    pre-existing illness or injury for 3 months.
26    University Hospitals v.                    No. 98-4061      No. 98-4061                      University Hospitals v.          7
      Emerson Electric Co., et al.                                                              Emerson Electric Co., et al.

has not been briefed and argued, however, and I have              (Plan, § 7, at 3, J.A. at 625.)
conducted no independent research on the matter. I dissent
here not because of what was said by the original panel (a          The Summary Plan Description (“SPD”) includes similar
panel of which I was a member, incidentally), but because I       language, in a section entitled “Expenses Not Covered”:
remain of the opinion that it was not irrational for the
Committee to construe the terms of the Plan as meaning that         No medical benefits will be paid for the following:
no benefits would be payable in connection with Mr.
Weaver’s pre-existing illness during the first year of coverage     • A pre-existing illness or injury for which you were
unless and until there had been three months of coverage in           treated or took prescribed medicines within 3 months
which Mr. Weaver had been free of treatment for the illness.          before your coverage began until:

  I acknowledge that the language of the Plan is not as clear          — you have been covered under this Plan for a year, or
as it might be. The Plan’s Benefit Provisions start off plainly
enough by establishing certain “Pre-Existing Condition                 — you haven’t had any charges for this illness or
Limits” once coverage commences:                                       injury for 3 months,

  “Hospital expenses and other medical expenses incurred               whichever comes first . . . .
  in connection with a disease or injury for which a              (SPD at 12, J.A. at 157.)
  covered individual received treatment or services or took
  prescribed drugs during the three month period                  D. Procedural Background
  immediately preceding the effective date of such
  individual’s coverage under this Plan will not be                  This case has a lengthy procedural history. In May of 1991,
  included as covered medical expenses prior to the earliest      shortly before his death, Mr. Weaver sought reimbursement
  of the dates shown in the Schedule of Benefits.”                from the Plan for a portion of the medical expenses he
                                                                  incurred at UHOC and elsewhere. On May 29, 1991, the
Under the catchline “Pre-existing Limitation” (a reference,       Plan’s third-party administrator, Pension Associates
obviously, to the limits pertaining to medical conditions that    Incorporated (“PAI”), denied this claim for benefits, stating
were “pre-existing” as of the commencement of coverage),          that “[n]o benefits are payable for a condition for which you
the Plan’s Schedule of Benefits – speaking as of the              received diagnosis, were treated or took prescribed medicines
commencement of coverage, in the Committee’s undertaking          within 3 months   before [the] effective date” of Plan coverage.
– then says this:                                                 (J.A. at 224.)1 On August 15, 1991, PAI reiterated this
                                                                  position upon being presented with a request for
  “No benefits are payable for a pre-existing illness or
  injury for which an individual was treated or took
  prescribed medicine within 3 months prior to coverage
  until:
                                                                      1
                                                                        As we observed in UHOC’s prior appeal to this Court, PAI’s
     1) the individual has been covered under this Plan           reference to a condition “for which you received diagnosis” does not
     for one year, or                                             comport with either the Plan or the SPD, both of which speak only of
                                                                  receiving treatment or taking prescribed drugs.
8    University Hospitals v.                     No. 98-4061      No. 98-4061                    University Hospitals v.       25
     Emerson Electric Co., et al.                                                             Emerson Electric Co., et al.

reimbursement of additional medical expenses incurred by                               ________________
Mr. Weaver before his death. (J.A. at 355.)
                                                                                           DISSENT
   On November 11, 1991, the executor of Mr. Weaver’s                                  ________________
estate, Clark Weaver, assigned to UHOC “all benefits in the
form of health insurance or similar benefits under an                DAVID A. NELSON, Circuit Judge, dissenting. I agree
employer-sponsored health and welfare fund which Gerald           with my colleagues on the panel that the Employee Benefit
Weaver (deceased) had at the time of his treatment at             Committee did not act irrationally in determining that Mr.
[UHOC], not to exceed the hospital/physician charges.” (J.A.      Weaver received “treatment or services” when he saw Dr.
at 28.) At about the same time, Clark Weaver appealed the         Kumar on September 28, 1990. I also agree that the
denial of benefits to the Plan’s administrative review body,      Committee did not act irrationally in determining that the
the EBC, asserting that Mr. Weaver “had never been                hospital and medical expenses incurred after the
diagnosed nor had he ever been treated for any condition”         commencement of coverage were incurred in connection with
prior to the date of Plan coverage. (J.A. at 364.) On April 10,   the same pre-existing disease for which Mr. Weaver received
1992, the EBC denied this appeal, quoting the above-cited         treatment or services on September 28. I cannot agree,
Plan language regarding pre-existing conditions, and stating      however, that the Committee acted irrationally in determining
that “based upon the information which was reviewed by two        that Mr. Weaver failed to come within the three-months-
medical consultants, it is the Committee’s decision that [Mr.     without-treatment exception to the provision under which the
Weaver’s] illness was pre-existing and, as such, the charges      payment of benefits for such a pre-existing disease is barred
have been correctly denied.” (J.A. at 225.)                       until there has been a full year of coverage.
   UHOC then brought this action on July 1, 1992, seeking           If the Committee was irrational in finding this exception
reversal of the EBC’s decision to deny benefits. On October       inapplicable, then a unanimous three-judge panel of this court
29, 1993, the District Court granted the Plan’s motion for        must have been equally irrational when, speaking for the court
summary judgment. In so ruling, the Court found that Mr.          when the case was here earlier, the panel quoted the pertinent
Weaver’s September 28, 1990 visit to Dr. Kumar triggered          sections of the Plan in their entirety and went on to note that
the Plan’s “pre-existing condition” exclusion, because it         neither exception to the preclusion of benefits for certain pre-
occurred less than three months before Mr. Weaver became          existing conditions – neither the one-year-of-coverage
eligible for Plan coverage on December 24, 1990. The Court        provision nor the three-months-without-treatment provision
next held that the EBC had reasonably construed the Plan’s        – had been satisfied in the matter at hand. See University
Schedule of Benefits as requiring that a participant go without   Hospital of Cleveland v. Emerson Electric Co. Benefit Plan,
treatment of a pre-existing condition for three months after      No. 93-4924, slip op. at 3 n.1 (6th Cir. Dec. 22, 1994) (“It
his Plan eligibility date — as opposed to any three-month         should be noted that neither exception (1) nor exception (2)
period, before or after the eligibility date, as UHOC             applies to the matter at hand”).
contended — in order to qualify for coverage of further
medical expenses incurred in connection with a pre-existing         I should have thought, at first blush, that this court’s 1994
condition. Because Mr. Weaver had visited a physician on          opinion might well have established the law of the case with
January 8, 1991, just two weeks after his eligibility date, the   respect to the issue on which the current panel rests its
                                                                  decision. The applicability of the law-of-the-case doctrine
24    University Hospitals v.                             No. 98-4061        No. 98-4061                   University Hospitals v.           9
      Emerson Electric Co., et al.                                                                      Emerson Electric Co., et al.

it be remanded to the EBC     for further proceedings in                     Court upheld the EBC’s determination that his subsequent
accordance with our ruling.13                                                medical expenses were not covered under the Plan.
                        IV. CONCLUSION                                          UHOC appealed to this Court, and we reversed. In our
                                                                             December 22, 1994 Opinion, we held that the EBC’s
  For the foregoing reasons, we REVERSE the judgment of                      determination could not be sustained, in light of the evidence
the court below and REMAND this matter to the District                       in the record that the EBC had considered a definition of “pre-
Court, with instructions that UHOC’s claim be remanded to                    existing condition” that could not be found either in the Plan
the EBC for further proceedings consistent with this decision.               or in the SPD. Accordingly, we ordered the matter remanded
                                                                             to the EBC with instructions to review UHOC’s claim “under
                                                                             the terms of the actual Plan provisions applicable to such
                                                                             claim.” University Hosps. of Cleveland v. Emerson Elec. Co.
                                                                             Benefit Plan, No. 93-4924, slip op. at 4 (6th Cir. Dec. 22,
                                                                             1994).
                                                                               On remand, the EBC again concluded, in a decision dated
                                                                             June 7, 1995, that UHOC was not entitled to an award of
                                                                             benefits:
                                                                                 After a thorough reconsideration and review, the
                                                                               Employee Benefit Committee voted unanimously to deny
                                                                               the appeal of the University Hospitals of Cleveland. The
                                                                               Employee Benefit Committee concluded that the expert
                                                                               testimony establishes that Gerald Weaver had a disease
                                                                               for which he received treatment or services during the
                                                                               three month period immediately preceding the effective
                                                                               date of his coverage under the Plan.
                                                                                 In addition, the evidence establishes that Mr. Weaver
                                                                               was not covered by the Plan for one year, and the
                                                                               evidence further establishes that Mr. Weaver had not
                                                                               been free of treatment for the pre-existing condition for
                                                                               the three month period as required by the terms of the
     13
       Because the EBC determined that the expenses incurred at UHOC           Plan. This decision is consistent with past interpretations
were wholly excluded from coverage as relating to a “pre-existing              of the applicable Plan provisions.
condition,” it appears that neither the third-party administrator nor the
EBC considered whether the particular expenses claimed by UHOC were          (J.A. at 767-68.)
covered by the Plan, subject to a deductible, or the like. Thus, we cannot
order an award of benefits, but must order the matter remanded to the
EBC, with the understanding that further proceedings must be confined         Following this second EBC determination, the District
to addressing the specific expenses contained in UHOC’s claim.               Court issued an Opinion and Order on January 17, 1997,
10       University Hospitals v.                            No. 98-4061         No. 98-4061                   University Hospitals v.       23
         Emerson Electric Co., et al.                                                                      Emerson Electric Co., et al.

restoring the case to its active docket, and setting a briefing                 thereby satisfied the Plan’s requirement for coverage of a pre-
schedule for cross-motions for summary judgment. The                            existing condition. Thus, having surveyed all of the possible
parties filed their cross-motions and, by Opinion and Order                     bases for the EBC’s determination to the contrary, and finding
dated August 6, 1998, the Court granted the Plan’s motion                       each of them lacking in reasoned justification, we conclude
and denied UHOC’s motion. In this decision, as in its 1993                      that the EBC’s decision to deny UHOC’s claim was arbitrary
ruling, the District Court found that the EBC’s denial of                       and capricious.
benefits was not arbitrary and capricious. The Court also
rejected UHOC’s argument that the EBC failed to timely                             In so holding, we cannot be blind to the totality of the
issue its latest decision in accordance with the relevant Plan                  circumstances surrounding Mr. Weaver’s medical treatment.
provision governing appeals of claim denials. UHOC now2                         According to Dr. Kumar’s medical records, Mr. Weaver
appeals this latest award of summary judgment to the Plan.                      affirmatively cited the “pre-existing condition” limitation on
                                                                                his health care coverage when he refused further treatment in
                           III. ANALYSIS                                        October of 1990. The Plan suggests that this was
                                                                                opportunistic behavior, and urges us to reject “the notion that
A. The Standards Governing Review of the Challenged                             a person can deliberately and intentionally ignore a
   Denial of Benefits                                                           recommended course of care in order to create the illusion of
                                                                                the absence of treatment for an existing disease.”
   A participant or beneficiary of an ERISA plan — or, as in                    (Defendants/Appellees’ Appeal Br. at 30.) Yet, we discern no
this case, an assignee of the rights held by a plan participant                 “illusion” here, nor any unfairness in the result. Rather, Mr.
— may bring suit in federal district court to recover benefits                  Weaver’s conduct was the entirely foreseeable and reasonable
allegedly due under the terms of the plan. See 29 U.S.C.                        product of Plan language that created an incentive to forego
§ 1132(a)(1)(B). It is by now well-established that courts                      treatment of a pre-existing condition. If the Plan wishes to
review such challenges to benefit determinations under the de                   curtail “deliberate and intentional” elections by its
novo standard, unless the benefit plan gives the plan                           participants to “ignore” recommended courses of treatment,
administrator discretionary authority to determine eligibility                  then the Plan should be amended so as not to encourage such
for benefits or to construe the terms of the plan. See                          behavior.
                                                                                  As the Plan is now written, however, such conduct is
     2                                                                          rewarded, and we see no reason to penalize Mr. Weaver for
      We recently held in Wilkins v. Baptist Healthcare Sys., Inc., 150         conforming his health care decisions to a reasonable —
F.3d 609, 617-19 (6th Cir. 1998), that summary judgment generally is an
inappropriate mechanism for adjudicating ERISA claims for benefits.             indeed, in our view, the only reasonable — construction of the
The District Court did not have the benefit of this decision, issued just a     Plan. Accordingly, we find that the EBC’s denial of UHOC’s
few days before the ruling now on appeal. In any event, as we explained         claim for benefits was arbitrary and capricious, we reverse the
in Wilkins, such reliance on summary judgment standards does not                judgment of the court below upholding this denial, and we
warrant reversal, so long as the District Court’s review of the challenged      remand this matter to the District Court with instructions that
benefit decision is confined to the evidence contained in the
administrative record. 150 F.3d at 620. The lower court’s decision in this
case appears to satisfy this standard. Likewise, in our review of the
District Court’s ruling, we will consider only the materials available to the
EBC, and not any depositions, affidavits, or similar litigation-related
materials that the parties submitted to the District Court.
22     University Hospitals v.                              No. 98-4061         No. 98-4061                         University Hospitals v.             11
       Emerson Electric Co., et al.                                                                              Emerson Electric Co., et al.

be termed “treatment” was administered or received on                           Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115,
October 8. See American Heritage College Dictionary 1440                        109 S. Ct. 948, 956 (1989); Smith v. Ameritech, 129 F.3d 857,
(3d ed. 1993) (defining “treatment” as “[a]dministration or                     863 (6th Cir. 1997). In this latter case, the administrator’s
application of remedies to a patient or for a disease or an                     benefit determination is reviewed under an “arbitrary and
injury,” or “[t]he substance or remedy so applied”). Rather,                    capricious” standard. Firestone, 489 U.S. at 115, 109 S. Ct.
the treatment was received on September 28, and the                             at 956-57; Smith, 129 F.3d at 863.
doctor/patient contact on October 8 merely followed up on
this prior treatment,12reporting its outcome and recommending                     The Plan in this case provides that the EBC “shall have the
further treatment.         We do not believe that a mere                        discretionary authority to determine eligibility for benefits or
recommendation constitutes treatment, particularly where, as                    to construe the terms of the Plan,” (Plan, § 6, Blanket
here, the patient declines to adopt the recommended course of                   Amendment, J.A. at 629), and further provides:
care.
                                                                                     The Employee Benefit Committee, as outlined in
   The Plan’s suggestion that the October 8 contact was part                      Section One (2.), is empowered to review requests for
of an ongoing “treatment” is all the more untenable when                          review of denied claims submitted in writing by any
considered in light of the SPD, which effectively equates                         participant. The Plan gives the Employee Benefit
“treatment” with “charges.” The record does not indicate that                     Committee the discretionary authority to determine
Mr. Weaver incurred any charges based on Dr. Kumar’s                              eligibility for benefits or to construe the terms of the Plan
October 8 telephone call, and one would not expect that such                      in carrying out the duties outlined in this Section [i.e.,
a physician contact following an office visit would result in a                   Section 5] and Section One (2.). The decision of the
separate charge. Because we must give controlling effect to                       Review Board shall be final and non-reviewable unless
the language of the SPD, it is not enough that the October 8                      found to be arbitrary and capricious by a court of
contact might constitute “treatment” under some conceivable                       competent review.
definition of that term, if Mr. Weaver incurred no charges that
day.                                                                            (Id.) As the parties apparently agree, this language constitutes
                                                                                a sufficient grant of discretionary authority to trigger
  In any event, even if the October 8 contact could be viewed                   application of the “arbitrary and capricious” standard of
as “treatment” under the Plan and its SPD, Mr. Weaver                           review. See, e.g., Bagsby v. Central States, Southeast &
waited three full months, until January 8, 1991, before                         Southwest Areas Pension Fund,      162 F.3d 424, 428 (6th Cir.
seeking any further treatment of his condition. Under the                       1998); Smith, 129 F.3d at 863.3
plain language of the Plan, then, Mr. Weaver remained “free
of treatment for the pre-existing illness or injury for three
                                                                                    3
months,” between October 8, 1990 and January 8, 1991, and                             While conceding that this Plan language, viewed in isolation,
                                                                                dictates application of the deferential “arbitrary and capricious” standard,
                                                                                UHOC argues that the de novo standard should apply here by virtue of the
     12                                                                         EBC’s alleged failure to timely issue a decision following our prior
        Tellingly, in an August 20, 1991 letter clarifying “the status of Mr.   remand of this matter to that body for reconsideration. As UHOC points
Gerald Weaver and the contact he has had with our office,” Dr. Kumar            out, if a plan administrator fails to timely decide an appeal of a claim
did not even mention any contacts with Mr. Weaver in October of 1990,           denial, the challenged claim “shall be deemed denied on review,” 29
but instead concluded his summary with the September 28, 1990 office            C.F.R. § 2560.503-1(h)(4), and the claimant may then “bring a civil action
visit. (J.A. at 367.)                                                           to have the merits of his application determined, just as he may bring an
12     University Hospitals v.                             No. 98-4061        No. 98-4061                     University Hospitals v.        21
       Emerson Electric Co., et al.                                                                        Emerson Electric Co., et al.

   Under this deferential “arbitrary and capricious” standard,                condition. Although this phrase is not further defined in the
we will uphold a benefit determination if it is “rational in                  Plan, the Summary Plan Description (“SPD”) restates the
light of the plan’s provisions.” Yeager v. Reliance Standard                  Plan’s three-month treatment-free provision as requiring that
Life Ins. Co., 88 F.3d 376, 381 (6th Cir. 1996) (internal                     “you haven’t had any charges for this illness or injury for 3
quotations and citation omitted). Stated differently, “[w]hen                 months.” (SPD at 12, J.A. at 157 (emphasis added).)
it is possible to offer a reasoned explanation, based on the                  Because employees rely on summary descriptions “for
evidence, for a particular outcome, that outcome is not                       information which will allow them to make intelligent
arbitrary or capricious.” Davis v. Kentucky Finance Cos.                      decisions about their future benefit needs,” we have held that
Retirement Plan, 887 F.2d 689, 693 (6th Cir. 1989) (internal                  the language of the SPD controls over any conflicting
quotations and citation omitted), cert. denied, 495 U.S. 905                  language in the Plan itself. Helwig v. Kelsey-Hayes Co., 93
(1990).                                                                       F.3d 243, 247-48 (6th Cir. 1996), cert. denied, 519 U.S. 1059
                                                                              (1997). Accordingly, in considering the Plan’s contention
   We note, however, that our deferential review of the benefit               that Mr. Weaver was not “free of treatment” in October of
denial at issue here is tempered by two principles. First, as                 1990, we must be mindful of the SPD’s linkage between
UHOC argued in the early stages of this litigation before the                 “treatment” and “charges.”
District Court, we should not overlook the fact that the Plan
is funded largely by Defendant/Appellee Emerson Electric,                        Viewed in this context, it is clear that nothing in Mr.
and that the EBC is appointed by Emerson’s Board of                           Weaver’s medical history for October of 1990 could
Directors. The “possible conflict of interest” inherent in this               reasonably be considered “treatment.” First, the cursory entry
situation “should be taken into account as a factor in                        for October 12 does not establish any contact whatsoever
determining whether the [EBC’s] decision was arbitrary and                    between Mr. Weaver and his physician, much less the
capricious.” Davis, 887 F.2d at 694; see also Borda v. Hardy,                 “treatment” required under the terms of the Plan. Next, the
Lewis, Pollard & Page, P.C., 138 F.3d 1062, 1069 (6th Cir.                    October 26 entry not only fails to reflect any treatment
                                                                              received by Mr. Weaver, but affirmatively shows his refusal
                                                                              of treatment. Plainly, such a refusal cannot be equated with
                                                                              treatment, as it is the very antithesis of treatment. And, the
                                                                              record is devoid of any evidence that Mr. Weaver incurred
                                                                              charges relating to these October 12 and October 26 entries in
                                                                              his medical history.
action to challenge an outright denial of benefits.” Massachusetts Mut.
Life Ins. Co. v. Russell, 473 U.S. 134, 144, 105 S. Ct. 3085, 3091 (1985).
Although neither the regulation nor Russell addresses the applicable             Turning, finally, to the October 8 contact between Dr.
standard of review in such circumstances, there is undeniable logic in the    Kumar and Mr. Weaver, the Plan asserts that it is reasonable
view that a plan administrator should forfeit deferential review by failing   to view this as a continuation of the September 28 office visit,
to exercise its discretion in a timely manner. But see Daniel v. Eaton        in which Dr. Kumar reported the results of the tests
Corp., 839 F.2d 263, 267 (6th Cir. 1988) (stating that “the standard of       administered during the office visit and recommended a
review is no different whether the appeal is actually denied or is deemed     further course of action. Yet, the Plan itself is clear in stating
denied”), cert. denied, 488 U.S. 826 (1988). In any event, given our
ruling on the merits of the EBC’s denial of benefits, we need not decide      that only treatment is relevant, and not, for example, the mere
whether the EBC timely issued its decision on remand, nor whether any         “services” that are sufficient to initially trigger the exclusion
failure to timely decide UHOC’s appeal should trigger a less deferential      for pre-existing conditions. Simply stated, nothing that could
standard of review.
20     University Hospitals v.                             No. 98-4061         No. 98-4061                          University Hospitals v.              13
       Emerson Electric Co., et al.                                                                              Emerson Electric Co., et al.

without “treatment” for this condition, whether before or after                1998).4 Next, to the extent that the Plan’s language is
his Plan eligibility date. The parties agree that Mr. Weaver                   susceptible of more than one interpretation, we will apply the
did not seek treatment in November or December of 1990,                        “rule of contra proferentum” and construe any ambiguities
and that his treatment resumed on January 8, 1991. The                         against Defendants/Appellees as the drafting parties. Perez
dispositive question, therefore, is whether Mr. Weaver was                     v. Aetna Life Ins. Co., 150 F.3d, 550, 557 n. 7 (6th Cir. 1998).
“free of treatment” during all or most of October, 1990, so
that there was a three-month period before January 8, 1991 in                  B. The EBC’s Interpretation of the Plan as Not Covering
which he received no treatment for his condition.                                 the Medical Expenses Mr. Weaver Incurred at
                                                                                  UHOC Is Arbitrary and Capricious.
   Dr. Kumar’s medical history for Mr. Weaver includes three
entries for October of 1990. First, on October 8, 1990, Dr.                      As indicated by the above-quoted Plan provisions relating
Kumar called Mr. Weaver to inform him of the results of his                    to pre-existing conditions, the EBC’s consideration of
recent blood test and recommend that he see a hematologist.                    UHOC’s claim for benefits involved a two-step inquiry. First,
(J.A. at 470.) Next, there is a short entry for October 12,                    under the Plan’s definition of a “pre-existing condition,” the
1990, stating only “CBC,” which apparently          reflects an                EBC had to determine whether Mr. Weaver’s medical
attempt to schedule an additional blood test.10 (J.A. at 475.)                 expenses at UHOC were “incurred in connection with a
Finally, an entry dated October 26, 1990 indicates that Mr.                    disease or injury for which [Mr. Weaver] received treatment
Weaver refused a blood test, stating that his health insurance                 or services or took prescribed drugs during the three month
would not cover a pre-existing condition. (Id.) The Plan                       period immediately preceding” Mr. Weaver’s Plan eligibility
argues that these October entries reflect a “continuing” course                date of December 24, 1990. If so — in other words, if Mr.
of treatment which began with Mr. Weaver’s September         28                Weaver’s medical expenses were traceable to a “pre-existing
office visit. (Defendants/Appellees’ Appeal Br. at 27.)11                      condition” — the EBC then would have to consider whether
                                                                               Mr. Weaver satisfied either of the two conditions under which
  We cannot accept this as a reasonable characterization of                    the Plan would commence to pay expenses relating to this
Mr. Weaver’s medical history. We begin by observing that
the Plan itself offers considerable guidance in determining
what it means to be “free of treatment” for a pre-existing                         4
                                                                                     In its initial decision granting summary judgment to the Plan, the
                                                                               District Court rejected UHOC’s claim of a conflict of interest, reasoning
                                                                               that “[t]he Plan is clearly a separate and distinct entity requiring fiduciary
     10                                                                        duties under ERISA.” (District Court’s 10/29/93 Op. at 4, J.A. at 680.)
       The record does not indicate whether this blood test was to occur       Because we found a different defect in the EBC’s decisional process, we
on October 12 or some other date, nor whether Mr. Weaver was contacted         did not reach this issue in the initial appeal, and UHOC has not raised it
in regard to this matter. In any event, it appears that Dr. Kumar’s office     in the present appeal. Nevertheless, we believe it appropriate to observe
did not administer any blood tests in October.                                 here that the mere existence of fiduciary duties, which always are present
     11                                                                        in any benefit determination governed by ERISA, does not obviate the
       We note that there is nothing in the administrative record to           need to more carefully examine decisions that might be tainted by a
indicate that the EBC ever made such a finding of a “continuing course         conflict of interest. Courts should be particularly vigilant in situations
of treatment” extending into October of 1990. Nevertheless, in the             where, as here, the plan sponsor bears all or most of the risk of paying
interest of resolving this nearly eight-year-old litigation, we will address   claims, and also appoints the body designated as the final arbiter of such
this argument as a possible alternate ground for sustaining the EBC’s          claims. Under these circumstances, the potential for self-interested
decision.                                                                      decision-making is evident.
14   University Hospitals v.                      No. 98-4061      No. 98-4061                       University Hospitals v.            19
     Emerson Electric Co., et al.                                                                 Emerson Electric Co., et al.

“pre-existing condition”: namely, either (1) that Mr. Weaver          Given all these express references to the date a participant’s
was “covered under this Plan for one year,” or (2) that he had     coverage commences, we cannot help but place significance
been “free of treatment for the pre-existing illness or injury     on the absence of any such language in the three-month
for 3 months.” Upon carrying out this two-step inquiry, the        treatment-free provision at issue here. If we were to view the
EBC concluded that Mr. Weaver’s UHOC expenses were                 Plan as “impliedly” including the additional qualification
traceable to a pre-existing condition, but that he had not         imposed by the EBC, we would sanction an inconsistent
satisfied either of the two conditions for coverage of this pre-   reading and permit the Plan to have it both ways. Under the
existing condition by the time he was treated at UHOC.             EBC’s interpretation, a Plan participant triggers the “pre-
UHOC now challenges both of these conclusions.                     existing condition” exclusion by accepting any treatment or
                                                                   services at any time within the three months prior to his Plan
  As for the first step of the inquiry — namely, whether Mr.       coverage date. Yet, in the EBC’s view, no significance
Weaver triggered the “pre-existing condition” exclusion by         attaches to any decision by a Plan participant to forego
receiving “treatment or services” within three months prior to     treatment during this same three-month period; such
his Plan eligibility date of December 24, 1990 — we find that      decisions, we are told, count only if made after the Plan
the EBC’s determination was reasonable in light of the             coverage date.
available evidence. It is undisputed that Mr. Weaver visited
his physician, Dr. Kumar, on September 28, 1990, and that he          We cannot accept this attempt to impose an additional and
provided a blood sample for testing that day. Plainly, then,       one-sided limitation not stated in the Plan itself. This is
Mr. Weaver received medical treatment or services within the       particularly so where, as we have noted, the Plan is largely
three-month period prior to December 24, 1990.                     funded by Defendant/Appellee Emerson Electric and the EBC
                                                                   is appointed by Emerson’s Board of Directors, so that the
  UHOC, however, challenges the EBC’s finding that the             EBC has an evident self-interest  in seeing that UHOC’s rather
condition for which Mr. Weaver received treatment on               sizable claim is not paid.9 Moreover, the rule of contra
September 28, 1990, was the same “pre-existing condition”          proferentum precludes the EBC from finding an “ambiguity”
for which he subsequently received treatment at UHOC in            in the Plan’s three-month treatment-free provision, and then
March through June of 1991. In reaching this conclusion, the       invoking its discretionary power to “construe” this provision
EBC obtained and considered two separate and independent           in the Plan’s favor. There is no ambiguity here: the provision
medical opinions, both of which indicated that the condition       in question includes no limitation beyond the requirement of
diagnosed in early 1991 was a continuation of the condition        three months without treatment.
for which Mr. Weaver sought treatment in September of
1990. (J.A. at 543-44.) In addition, in its review upon              This leads us to the second suggested basis for the EBC’s
remand, the EBC heard a presentation from UHOC’s counsel,          decision: that, following his visit to Dr. Kumar in late
and was provided an opinion from UHOC’s medical expert,            September of 1990 which triggered the “pre-existing
Dr. Lawrence Kass, stating that it was “uncertain” whether the     condition” exclusion, Mr. Weaver never went three months
anemia diagnosed by Dr. Kumar in September of 1990
“eventually evolved” into myelodysplasia, and that it would
be “only speculative” to so conclude. (J.A. at 391.)                   9
                                                                         Although Plan participants are required to pay certain deductibles
                                                                   and co-pays, there is nothing in the record to indicate that any such
                                                                   participant contributions would significantly reduce the burden on the
                                                                   Plan if it were determined that the Plan must pay UHOC’s claim.
18       University Hospitals v.                           No. 98-4061        No. 98-4061                         University Hospitals v.             15
         Emerson Electric Co., et al.                                                                          Emerson Electric Co., et al.

coverage of expenses incurred in connection with a pre-                          Given this range of medical opinions and evidence before
existing condition, a participant must be “free of treatment for              the EBC, we cannot say that its determination on this point
the pre-existing illness or injury for 3 months.” On its face,                was arbitrary and capricious. In particular, where the EBC’s
this language is satisfied by any three-month period without                  decision enjoys the support of two independent medical
treatment, whether it falls entirely after the Plan eligibility               opinions, it is sufficiently grounded in reason and evidence to
date or extends into the890-day period before an employee is                  satisfy the “least demanding form of judicial review,” the
covered by the Plan.         It is not a permissible act of                   arbitrary and capricious standard. Davis, 887 F.2d at 693
“construction” to augment this language with the additional                   (internal quotations and citation omitted). Although UHOC’s
qualifier that a participant must be “free of treatment . . . for             medical expert reached a different conclusion, complete
3 months after the effective date of Plan coverage.” Rather,                  consensus is not required to establish a reasoned basis for an
the terms of the Plan must be construed “according to their                   administrative decision. Indeed, even UHOC’s expert was
plain meaning, in an ordinary and popular sense,” Perez, 150                  unwilling to say that the anemia suffered by Mr. Weaver in
F.3d at 556, and those terms simply do not impose the                         September of 1990 was altogether unrelated to the
requirement that a participant not seek treatment for three                   myelodysplastic syndrome that ultimately led to his death; he
months after he is covered by the Plan.                                       stated only that any such connection was “uncertain” and
                                                                              “speculative.” The EBC could rationally have elected instead
   The implausibility of the EBC’s interpretation is amply                    to heed the opinions of two other experts, both of whom
illustrated through comparison with other Plan language, also                 viewed the evidence in Mr. Weaver’s         medical history as
relating to “pre-existing conditions,” that does compute time                 sufficient to make this connection.5
periods by reference to a participant’s date of coverage. For
example, the Plan defines a “pre-existing condition” as one                     The next step in the EBC’s inquiry, however, is more
“for which a covered individual received treatment or services                problematic. All are agreed that Mr. Weaver was not covered
or took prescribed drugs during the three month period                        under the Plan for a year prior to his treatment at UHOC, so
immediately preceding the effective date of such                              that he did not satisfy the first of the two conditions for Plan
individual’s coverage under this Plan.” (J.A. at 609                          coverage of a pre-existing disease. The EBC also found that
(emphasis added).) The Plan further provides that coverage
of a pre-existing condition will commence once the
participant “has been covered under this Plan for one                             5
year.” (J.A. at 625 (emphasis added).) Similarly, the SPD                           UHOC argues that these expert opinions necessarily are “tainted”
states that a pre-existing condition is one “for which you were               by our ruling in the prior appeal that the EBC’s initial decision might have
                                                                              rested upon a definition of “pre-existing condition” not found in the Plan
treated or took prescribed medicines within 3 months before                   or the SPD. As the District Court observed in rejecting this argument,
your coverage began,” and that medical expenses will be                       however, these medical opinions do not turn on matters of Plan
paid for such a condition once “you have been covered under                   interpretation or any particular definition of “pre-existing condition,” but
this Plan for a year.” (J.A. at 157 (emphasis added).)                        instead are based upon analysis of Mr. Weaver’s medical history to see
                                                                              whether his treatments before and after December 24, 1990 were directed
                                                                              at the same or different medical conditions. Once the medical experts
                                                                              weighed in on this issue, it was left to the EBC to decide whether Mr.
     8                                                                        Weaver’s particular interactions with medical personnel in the three
       Likewise, the SPD requires only that “you haven’t had any charges      months before December 24, 1990 constituted “receiv[ing] treatment or
for this illness or injury for 3 months,” and does not further specify that   services or t[aking] prescribed drugs” within the meaning of the Plan’s
this three-month period must follow the date of Plan coverage.                definition of a “pre-existing condition.”
16       University Hospitals v.                            No. 98-4061         No. 98-4061                         University Hospitals v.             17
         Emerson Electric Co., et al.                                                                            Emerson Electric Co., et al.

Mr. Weaver did not satisfy the second condition, stating in its                 in matters of Plan interpretation, the Plan argues that we must
June 7, 1995 decision that “the evidence further establishes                    defer to this construction of the three-month treatment-free
that Mr. Weaver had not been free of treatment for the pre-                     requirement. If this proposed construction is accepted, it
existing condition for the three month period as required by                    follows that the EBC properly denied UHOC’s claim, as it is
the terms of the Plan.” (J.A. at 768.) We find insufficient                     undisputed that Mr. Weaver sought treatment within two
support in the record to sustain this determination, even under6                weeks after he became eligible for Plan benefits.
the deferential “arbitrary and capricious” standard of review.
                                                                                  Upon reviewing the plain language of the Plan, however,
  While the EBC’s decision is stated in somewhat conclusory                     we find that the EBC has exceeded its power to interpret the
fashion, the Plan suggests two possible rationales for this                     Plan, and instead has effectively rewritten it. To trigger
decision, and argues that either is adequate to sustain it. First,
we are told that the EBC “construed the Plan as requiring
participants with a pre-existing disease to be free of treatment
for a three month period after the effective date of coverage                   from considering evidence, such as Draeger’s testimony, that is not part
                                                                                of the administrative record.
by the Plan in order to receive benefits for the pre-existing
disease.” (Defendants/Appellees’        Appeal Br. at 25-26                          Indeed, we should be all the more reluctant to stray from the
(emphasis added).)7 Given the EBC’s discretionary authority                     administrative record where, as here, the proffered evidence is one
                                                                                person’s post hoc explanation of an administrative body’s decision. In an
                                                                                analogous situation, we do not look to post-enactment statements of
                                                                                legislators when determining the meaning of statutes. See Michigan
     6                                                                          United Conservation Clubs v. Lujan, 949 F.2d 202, 209-10 (6th Cir.
       As Judge Nelson notes in his dissent, our decision in the prior          1991). More importantly, it strikes us as problematic to, on one hand,
appeal of this case included a footnote tersely stating, without discussion,    recognize an administrator’s discretion to interpret a plan by applying a
that the Plan’s three-month treatment-free provision did not “appl[y] to        deferential “arbitrary and capricious” standard of review, yet, on the other
the matter at hand.” University Hosps. of Cleveland v. Emerson Elec. Co.        hand, allow the administrator to “shore up” a decision after-the-fact by
Benefit Plan, No. 93-4924, slip op. at 3 n.1 (6th Cir. Dec. 22, 1994).          testifying as to the “true” basis for the decision after the matter is in
Notably, in the present appeal, the Plan does not even mention this earlier     litigation, possible deficiencies in the decision are identified, and an
statement, much less argue that we have already ruled upon the                  attorney is consulted to defend the decision by developing creative post
applicability of the three-month treatment-free provision. Similarly, while     hoc arguments that can survive deferential review. The concerns inherent
Judge Nelson quotes this footnote, he elects not to rely on the “law of the     in this scenario are even more pronounced where, as here, the
case” doctrine in his dissent. Having considered the matter, we do not          administrator has a financial incentive to deny benefits. To depart from
believe that this statement represents the “law of the case,” where our         the administrative record in this fashion would, in our view, invite more
earlier ruling did not address the merits of or reasoning behind the EBC’s      terse and conclusory decisions from plan administrators, leaving room for
initial denial of benefits, but instead rested on the limited ground that the   them — or, worse yet, federal judges — to brainstorm and invent various
EBC might have erroneously relied on language not found in the Plan             proposed “rational bases” when their decisions are challenged in ensuing
itself. As we have observed, the “law of the case” doctrine is “limited to      litigation. At a minimum, if we permit such rehabilitation of the
those questions necessarily decided in the earlier appeal.” Hanover Ins.        administrative record, there no longer is any reason why we should not
Co. v. American Eng’g Co., 105 F.3d 306, 312 (6th Cir. 1997).                   apply a more searching de novo review of the administrator’s decision.
     7
     The dissent sees “no room for doubt” that this construction was the             Having said this, we do not mean to imply that Mr. Draeger’s
one adopted by the EBC in denying UHOC’s claim. This conclusion is              testimony fails to accurately reflect the basis for the EBC’s decision. The
based on the deposition testimony of one EBC member, James Draeger;             point is, we simply cannot tell from the text of the decision itself, nor
the EBC’s written decision includes no such statement of its reasoning.         from the administrative record. Ideally, that text should be the principal
Our decision in Wilkins, supra, 150 F.3d at 618, however, precludes us          point of reference in our review of a challenged denial of benefits.
