                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-2432



JENNIFER ELAINE HALL,

                                             Plaintiff - Appellant,

           versus


METROPOLITAN LIFE INSURANCE COMPANY, a/k/a
MetLife,   Incorporated;  GENERAL  ELECTRIC
COMPANY, a/k/a GE; GE LIFE, DISABILITY AND
MEDICAL PLAN,

                                            Defendants - Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, District Judge.
(CA-05-304)


Argued:   October 30, 2007              Decided:     December 27, 2007


Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished opinion. Judge Duncan wrote the opinion,
in which Judge Niemeyer and Judge Shedd joined.


ARGUED: Richard Franklin Hawkins, III, Richmond, Virginia, for
Appellant. Lowell D. Kass, METROPOLITAN LIFE INSURANCE COMPANY,
Long Island City, New York, for Appellees.      ON BRIEF: Susan A.
Waddell, WOOTENHART, P.L.C., Roanoke, Virginia, for Appellant.
Eric W. Schwartz, Sandra Compton Simmons, TROUTMAN SANDERS, L.L.P.,
Virginia Beach, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




                                2
DUNCAN, Circuit Judge:

      Plaintiff-Appellant Jennifer E. Hall (“Hall”) appeals the

district court’s grant of summary judgment to Defendant-Appellee

Metropolitan Life Insurance Company (“MetLife”) on her action under

the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C.

§ 1132(a)(1)(B), to recover accidental death and dismemberment

benefits and personal accident insurance benefits in the amount of

$284,208.00.    Hall claimed these benefits as the widow and sole

beneficiary of Tommie B. Hall (the “decedent”), an employee of

General Electric Company who suffered a fatal allergic reaction to

a bee sting.    The decedent was insured under an employee welfare

benefits plan that excluded coverage for losses contributed to or

caused by disease or physical impairment.            The district court held

that MetLife properly denied coverage based on this exclusion. For

the following reasons, we affirm.



                                        I.

      On July 16, 2004, the decedent, age 37, was stung by a bee on

the bridge of his nose.         Within minutes, his tongue swelled; he

stopped breathing and lost consciousness. Emergency personnel were

unable to revive him, and he was pronounced dead little more than

an   hour   after   he   was   stung.        The   death   certificate   listed

anaphylaxis as the immediate cause of death, noting the bee sting

as an underlying cause.        The hospital disposition summary listed


                                        3
diagnoses of anaphylaxis and cardiac arrest. The decedent’s family

physician    agreed   that   the   decedent   died   after   suffering

anaphylactic shock from a bee sting, but she noted no prior history

of bee sting allergies.       An independent consulting physician,

retained by MetLife, reviewed the medical records and opined that

the decedent likely had an allergy to stinging insects that was not

reflected in the medical records, and that this allergy caused the

anaphylactic reaction resulting in his death.

     Prior to his death, the decedent had been employed by the

General Electric Company (“GE”) and covered under the GE Life,

Disability and Medical Plan (the “Plan”).      As relevant here, the

Plan provided accidental death and dismemberment (“AD&D”) and

personal accident insurance (“PAI”) benefits.1       Under the Plan,

MetLife served as the claims administrator:

     [MetLife] will make all determinations with respect to
     benefits under this Plan. Accordingly, the management
     and control of the operation and administration of claim
     procedures under the Plan, including the review and
     payment or denial of claims and the provision of full and
     fair review of claim denial pursuant to Section 503 of
     [ERISA], shall be vested in [MetLife].

J.A. 171.2




     1
      The Plan also included basic life insurance benefits, for
which MetLife found Hall eligible in the amount of $118,420.00.
     2
      This language comes from the PAI section of the Plan. The
AD&D section contains substantially the same language, except that
the first sentence reads, “Determinations of all benefit payments
under the Plan will be made by [MetLife].” J.A. 151.

                                   4
     There is no dispute in this case that the bee sting suffered

by the decedent was an accident. The GE Benefits Handbook explains

the circumstances in which accidental losses are not covered under

the Plan:

     Benefits under [the AD&D and PAI sections of the Plan]
     are not paid for losses contributed to or caused by:
     Disease or medical or surgical treatment of such disease;
     [i]ntentionally self-inflicted injury; [p]hysical or
     mental impairment or medical or surgical treatment of
     such impairment; or [i]nsurrection or any act of war,
     whether declared or undeclared.

J.A. 365 (emphasis added).               After receiving Hall’s claim as the

beneficiary     under       the     decedent’s       policy,     and   quoting     this

exclusionary language, MetLife denied the claim on “the basis of .

. . the Plan’s exclusions for accidental losses contributed to or

caused by disease and/or physical impairments.”                      J.A. 715.

     The denial letter cited the death certificate, the hospital

disposition     summary,         the     letter     from   the   decedent’s      family

physician,     and    the       independent       physician   consultant’s       report,

concluding     that    these      records     “demonstrate[d]        that    decedent’s

allergy to bee stings was both a disease and physical impairment

which caused and/or contributed to his death.”                   J.A. 714.       MetLife

relied    extensively       on     the    independent      physician       consultant’s

report, in which the doctor cited authority to the effect that a

bee-sting allergy is a “disease,” J.A. 718-19, opined that “[a]n

allergy   is   [also]       a    physical     impairment      when   the    allergy   is

activated,” J.A. 719, and rendered the opinion that the decedent


                                              5
had an allergy to stinging insects even though no such allergy was

noted in his medical records.         The report concluded that the

decedent’s reaction to the bee sting was consistent with a severe

allergic reaction and that this reaction caused the decedent’s

death.   J.A. 718-19.

     Hall appealed the denial, arguing that there was no evidence

that an allergy was a contributing cause of the decedent’s death--

only evidence that the decedent died as a result of being stung on

the bridge of his nose.   Hall also argued that even if the decedent

had a pre-existing sensitivity or allergy to bee stings, this

condition was not a “disease” or “impairment.” Hall further argued

that when an injury activates a dormant disease, the injury should

be held to be the direct and exclusive legal cause of death,

thereby allowing her to recover.      MetLife found Hall’s assertion

regarding causation to be contrary to the uncontroverted medical

evidence and reiterated its earlier conclusion that the decedent’s

bee-sting allergy was a disease and a physical impairment that

contributed to or caused his death.3     MetLife then wrote,

     Finally, an additional basis [for denial] exists under
     the coverage language, which requires that the loss
     result solely and directly from an accident. . . . [W]e
     find that [the decedent’s] death did not result solely


     3
      Regarding the question of whether an allergy is a disease,
MetLife cited a website submitted by Hall during the appeal process
for the propositions that “Allergies are disorders of the immune
system” and that “Anaphylactic shock, also called anaphylaxis, is
a severe, life threatening reaction to certain allergens.” J.A.
667, 671.

                                  6
     and directly from an accident. . . . [W]e must uphold
     the denial of your client’s claim based on the
     requirement that the loss be solely and directly due to
     an accident, and the Plan’s disease and physical
     impairment exclusions listed above.        This letter
     concludes the administrative review process.

J.A. 668.

     Hall initiated this action in Virginia state court.                    MetLife

removed   to    the   United   States      District   Court   for     the   Western

District of Virginia.        On cross-motions for summary judgment, the

district court concluded that MetLife had not abused its discretion

in denying Hall’s claim based on the aforementioned exclusion.

Hall v. Metro. Life Ins. Co., 398 F. Supp. 2d 494, 499 (W.D. Va.

2005). At Hall’s suggestion, the court in the alternative reviewed

the denial de novo but nevertheless found that the record evidence

that the decedent suffered anaphylactic shock from a bee sting was

“overwhelming,” and that the decedent’s allergic reaction fell

within    the   parameters     of   the    disease    or   physical    impairment

exclusion.      Id. at 501.    This appeal followed.



                                          II.

                                          A.

     Under our well-settled framework for reviewing denials of

benefits under ERISA plans, we examine the district court’s grant

of summary judgment de novo.        Sheppard & Enoch Pratt Hosp., Inc. v.

Travelers Ins. Co., 32 F.3d 120, 123 (4th Cir. 1994).                 Where a Plan

gives a claims administrator discretion to construe plan terms or

                                           7
determine eligibility for benefits, we review the administrator’s

denial decision for abuse of discretion.           See Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Ellis v. Metro. Life

Ins. Co., 126 F.3d 228, 232-33 (4th Cir. 1997).               Otherwise, the

denial is reviewed de novo.     Bruch, 489 U.S. at 115.        Of course, we

review de novo the threshold matter of whether the Plan language at

issue limits us to abuse-of-discretion review.                Haley v. Paul

Revere Life Ins. Co., 77 F.3d 84, 89 (4th Cir. 1996).

     MetLife argues that the Plan language in this case contains

sufficient discretion-conferring authority to require review under

the deferential abuse-of-discretion standard.             Although we are

inclined to disagree, we need not resolve the issue since, as the

district court noted, the outcome here would be the same under

either standard.       Assuming the applicability of de novo review,

which is more favorable to Hall, we assess whether the denial of

AD&D and PAI benefits to Hall was appropriate.           We are limited to

the evidence that was before MetLife at the time it made its

decision unless we determine that additional evidence is necessary

to   facilitate   an    adequate   de    novo   review   of     the   denial.

Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1025 (4th

Cir. 1993).

                                    B.

     Hall urges us to review only the rationale contained in the

initial denial letter, J.A. 715 (“the basis of MetLife’s denial of


                                    8
[Hall’s] claim is the Plan’s exclusions for accidental losses

contributed to or caused by disease and/or physical impairments”),

and not consider the additional rationale for the denial offered by

MetLife for the first time in its denial of Hall’s appeal, J.A. 668

(“the requirement that the loss be solely and directly due to an

accident”).    In doing so, Hall relies on the ERISA requirement

that,

     [i]n accordance with [applicable regulations], every
     employee benefit plan shall . . . afford a reasonable
     opportunity to any participant whose claim for benefits
     has been denied for a full and fair review by the
     appropriate named fiduciary of the decision denying the
     claim.

29 U.S.C. § 1133.   ERISA’s implementing regulations explain that a

claimant must initially be provided with, inter alia, “[t]he

specific reason or reasons for the adverse determination,” and

“[r]eference   to   the   specific   plan   provisions   on   which   the

determination is based.”      29 C.F.R. § 2560.503-1(g)(1)(i)-(ii).

The claimant must then be given “the opportunity to submit written

comments, documents, records, and other information relating to the

claim for benefits,” and the claims administrator must take any

such materials submitted into account in deciding the appeal.

§ 2560.503-1(h)(2)(ii), (iv).    Under either standard of review–-de

novo or abuse of discretion–-the administrator must comply with

these procedural guidelines.    See Weaver v. Phoenix Home Life Mut.

Ins. Co., 990 F.2d 154, 158 & n.3 (4th Cir. 1993).



                                     9
     The safeguards in 29 U.S.C. § 1133 and the implementing

regulations “have been read as ensuring that a full and fair review

is conducted by the administrator, that a claimant is enabled to

prepare an appeal for further administrative review or recourse to

the federal courts, and that the courts can . . . review[] a claim

denial.”    Ellis, 126 F.3d at 236-37 (emphasis added).         For that

reason, this court has previously held, albeit in an unpublished

opinion, that 29 U.S.C. § 1133 and 29 C.F.R. § 2560.503-1 require

that judicial review be “limited to whether the rationale set forth

in the initial denial notice is reasonable.” Thompson v. Life Ins.

Co. of N. Am., 30 F. App’x 160, 164 (4th Cir. 2002) (unpublished)

(emphasis added); see also Robinson v. Aetna Life Ins. Co., 443

F.3d 389, 393 (5th Cir. 2006) (holding that under § 1133 the

administrative review must focus on the specific reason for the

administrator’s decision cited in the initial denial notice);

Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 974 (9th Cir.

2006) (“[A]n administrator that adds, in its final decision, a new

reason for denial, a maneuver that has the effect of insulating the

rationale   from   review,   contravenes   the   purpose   of   ERISA.”);

McCartha v. Nat’l City Corp., 419 F.3d 437, 446 (6th Cir. 2005)

(holding that an administrator was not in substantial compliance

with § 1133 where the initial denial notice omitted one of the

grounds later relied on for the denial of benefits); Abram v.

Cargill, Inc., 395 F.3d 882, 886 (8th Cir. 2005) (noting that


                                  10
ERISA’s      procedural    requirements           are   intended       to   generate     a

“meaningful        dialogue”       between         claim        administrators          and

beneficiaries and to avoid beneficiaries being “sandbagged by post-

hoc    justifications      of     plan       decisions”)        (internal    quotations

omitted); Juliano v. Health Maint. Org. of N.J., Inc., 221 F.3d

279, 287 (2d Cir. 2000) (same).

       The    district    court    below       erroneously        reasoned       that   the

limitation     suggested    by     these      cases     would     render    superfluous

another of ERISA’s procedural safeguards–-the requirement that the

administrator, in reviewing an appeal of a denial, consider new

materials “submitted by the claimant relating to the claim” after

the initial denial.        29 C.F.R. § 2560.503-1(h)(2)(iv).                  Hall, 398

F. Supp. 2d at 501.        In doing so, the court failed to distinguish

between      the   obligation     of     a    claim     administrator       to    provide

sufficient notice of the precise reason for a denial and the right

of a claimant to submit additional information in response to the

reason given.       The statutory and regulatory text and the case law

demand that judicial review take into account only reasons for an

adverse      benefits    determination         offered     in    the   initial     denial

notice, because these are the only rationales on which a claimant

might have arguably been given a “full and fair” opportunity to

respond during the administrative process.                  See Ellis, 126 F.3d at

237.      Therefore, in this case, we will limit our review to




                                             11
MetLife’s initial denial based on the Plan’s disease and physical

impairment exclusions.4



                                             III.

      Courts have long grappled with policy exclusions such as the

one   at   issue    in    this       case,   which    could   conceivably   preclude

coverage    in     all   but     a    few    accident   cases.     See   J.A.   Bock,

Annotation, Pre-existing Physical Condition as Affecting Liability

Under Accident Policy or Accident Feature of Life Policy, 84

A.L.R.2d 176 (1962).             For example, an insured driver in a fatal

automobile accident whose end was hastened somewhat by his pre-

existing heart disease, even where experts agreed that a perfectly

healthy individual would have died under like circumstances, would

arguably not be covered under the policy (the disease having

contributed, albeit in a minor way, to his death).                       The waters

become murkier still if we depart from the seemingly scientific

term “disease” and also consider death contributed to or caused by

“impairment”       or    “infirmity,”         which   could   conceivably   include


      4
      Our customary course of action when faced with an
administrator which has failed to comply with ERISA’s procedural
requirements is to remand the case to the administrator for a full
and fair review. See Weaver, 990 F.2d at 159; Berry v. Ciba-Geigy
Corp., 761 F.2d 1003, 1007 n.4 (4th Cir. 1985). Here, however,
because our de novo review leads us to conclude that the plan
exclusion cited in the initial denial letter precludes an award of
benefits in this case, remand would be futile. Accordingly, we
decline to issue the customary remedy of remand, instead curing
MetLife’s violation by simply reviewing the case as though the new
rationale in the appeal denial had not been given.

                                              12
anything from high blood pressure to the common frailties of youth

or old age.5     Indeed, it is difficult to conjure up scenarios in

which no argument could be made that some disease or infirmity

contributed to an accidental loss.     Landress v. Phoenix Mut. Life

Ins. Co., 291 U.S. 491, 499 (1934) (Cardozo, J., dissenting)

(“Probably it is true to say that in the strictest sense and

dealing with the region of physical nature there is no such thing

as an accident.”) (internal quotations omitted).

     In this context, one court has recognized the existence of a

“long-standing allegorical tug-of-war” between insurance companies

and the courts (with beneficiaries serving merely as “highly

partisan spectator[s]”). Collins v. Metro. Life Ins. Co., 729 F.2d

1402, 1404 (11th Cir. 1984).    At one extreme, insurance companies

can be characterized as proffering an interpretation of policy

provisions in which “accidental death” coverage applies only on

facts “which [are] the equivalent of a truck dropping from the

skies, striking squarely and killing instantly a perfectly fit

human specimen clutching a just-issued physician’s clean bill of

health.”   Id.     At the other, the beneficiary of a particularly




     5
      Lest we be accused of presenting outrageous extremes, we note
that, at oral argument, counsel for MetLife suggested that a
hypothetical snake-bite allergy afflicting a random fifty percent
of the population, or, alternately, everyone under the age of
twelve, would be an infirmity or impairment precluding coverage
under the policy (though he later retracted the statement as it
pertained to those under age twelve).

                                  13
fragile decedent might claim coverage even when an insignificant

trauma had disproportionately debilitating consequences.

     Hall encourages us to solve the causation dilemma before us by

drawing a sharp line of demarcation between the accidental bee

sting and the allergy, which Hall characterizes as merely a dormant

condition activated by the bee sting.   See Appellant’s Br. at 44.

Under Hall’s theory, the allergy must be viewed as arising only

after, and as a consequence of, the bee sting for purposes of

determining legal causation.6

     Our precedent does not permit such fine distinctions.       In

Adkins v. Reliance Standard Life Ins. Co., 917 F.2d 794, 797 (4th

Cir. 1990), we concluded that,

     “[A] pre-existing infirmity or disease is not to be
     considered as a cause unless it substantially contributed
     to the disability or loss. . . . [A] ‘pre-disposition’
     or ‘susceptibility’ to injury, whether it results from
     congenital weakness or from previous illness or injury,
     does not necessarily amount to a substantial contributing
     cause. A mere ‘relationship’ of undetermined degree is
     not enough.”

Id. at 797 (quoting Colonial Life & Accident Ins. Co. v. Weartz,

636 S.W.2d 891, 894 (Ky. Ct. App. 1982)).    We later refined this

into a two-prong test: (1) whether there is a pre-existing disease,

pre-disposition, or susceptibility to injury; and (2) if so,

whether   the    pre-existing    disease,    pre-disposition,    or



     6
      Paradoxically, Hall elsewhere argues that “the sting and the
allergy are one-in-the-same and cannot be separated for causation
purposes.” Reply Br. at 18.

                                 14
susceptibility   to    injury     substantially     contributed      to   the

disability or loss.     Quesinberry, 987 F.2d at 1028.             Adkins and

Quesinberry control the result here.

     On the first Quesinberry prong, Hall argues that the evidence

of record does not support a conclusion that the decedent suffered

from a bee-sting allergy prior to his death.               Hall offers a

somewhat disingenuous characterization of the decedent’s doctor’s

report in support of her position by representing that “Decedent’s

treating physician clearly stated that Decedent suffered from no

such prior allergy.”    Appellant’s Br. at 46.      In fact, the doctor’s

letter stated, “[Decedent] had no history of bee sting allergy.             I

have reviewed his entire medical chart and there has never been a

visit related to any allergic reaction.”          J.A. 725.     Saying that

there is no history of a condition is a far cry from “clearly

stating” that no such condition existed. Fairly read, the doctor’s

letter is entirely consistent with the other evidence of record

establishing that the decedent suffered from an allergy to bee

stings that pre-existed the fatal sting.

     The record in this case compels the conclusion that the

decedent’s bee-sting allergy is properly viewed as a “pre-existing

disease,   pre-disposition,        or     susceptibility      to     injury.”

Quesinberry,   987    F.2d   at   1028.     The   independent      consulting

physician’s report and the website submitted by Hall in support of

her appeal support such a finding.        Further, as the district court


                                     15
noted, the National Institute of Allergy and Infectious Disease

supports the view that an allergy is a disease or impairment.

Hall, 398 F. Supp. 2d at 500 n.2.            Hall did not argue, nor need we

decide, whether an “allergy” is a “disease or impairment” for all

purposes, in every case; our decision is grounded in the record

before us.

     We now turn to the second Quesinberry prong and the question

of causation.        For the one or two people out of every thousand

afflicted with the decedent’s condition, a bee sting has the

potential    to    cause   a   severe   anaphylactic       reaction.      That    is

precisely     what    happened    here.        The    death     certificate      and

independent       physician’s    report      document     the    fact    that    the

decedent’s allergy triggered the anaphylaxis that was the immediate

cause   of   his     death.     Consequently,        on   the   second   prong    of

Quesinberry, we are constrained to conclude that the decedent’s

bee-sting allergy was a pre-existing condition that substantially

contributed to his death, and the Plan unambiguously excludes

coverage on that basis.

     We are not unsympathetic to the concern voiced by Hall that an

expansive reading of the exclusionary language in the Plan in this

case might negate coverage in spite of the legitimate expectations

of insured individuals and beneficiaries.                   See Silverstein v.

Metro. Life Ins. Co., 171 N.E. 914, 915 (N.Y. 1930) (“A policy of

insurance is not accepted with the thought that its coverage is to


                                        16
be restricted to an Apollo or a Hercules.”).      However, we are

satisfied that our analysis, dictated by precedent, of whether a

“pre-existing disease, pre-disposition, or susceptibility to injury

. . . substantially contributed to the disability or loss” serves

as an adequate check on insurers’ decisions in accidental loss

cases.   Quesinberry, 987 F.2d at 1028 (emphasis added).



                                IV.

     For the foregoing reasons, the judgment of the district court

is

                                                           AFFIRMED.




                                17
