UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT BUCHANAN; ALICIA
BUCHANAN; ANDREA BUCHANAN,
Plaintiffs-Appellees,

v.
                                                                  No. 97-2484
CONSOLIDATED COAL COMPANY
BENEFIT PLAN FOR UMWA
REPRESENTED EMPLOYEES; B. V.
HYLER, Plan Administrator,
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
William M. Kidd, Senior District Judge.
(CA-96-62-1)

Argued: October 26, 1998

Decided: December 17, 1998

Before ERVIN and HAMILTON, Circuit Judges, and
G. ROSS ANDERSON, JR., United States District Judge for the
District of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Michael James Florio, STEPTOE & JOHNSON, Clarks-
burg, West Virginia, for Appellants. Rocco Samuel Fucillo, WIL-
SON, FUCILLO & SHIELDS, Fairmont, West Virginia, for
Appellees. ON BRIEF: Robert M. Steptoe, Jr., STEPTOE & JOHN-
SON, Clarksburg, West Virginia, for Appellants. Brent Beveridge,
Fairmont, West Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Consolidated Coal Company Benefit Plan for UMWA Represented
Employees (Plan) and B. V. Hyler (Plan Administrator), appeal the
district court's granting of summary judgment under the Employee
Retirement Income Security Act of 1974 (ERISA). 29 U.S.C. § 1001
et seq. The district court reversed the Plan Administrator's denial of
benefits under the Plan, concluding that the fiduciary had abused its
discretion in denying Andrea Buchanan benefits. For the reasons set
forth below, we affirm the district court's ruling.

I.

Appellee Andrea Buchanan, then 16 years old, was a beneficiary
of the Plan, resulting from her father's employment with Consolidated
Coal Company. Andrea was referred to Dr. John M. Carson, an Oral
and Maxillofacial Surgeon, for treatment of facial-skeletal deformi-
ties.

In a letter dated April 21, 1994, Dr. Carson informed the Plan that
Andrea required surgery to correct "a destructive process which inter-
fered with the condylar1 development of the lower jaw and develop-
_________________________________________________________________
1 Pertaining to the smooth, rounded eminence on the end of the lower
jaw bone which enters into the formation of the joint with the temporal
bone on the side of the skull. 2 J.E. SCHMIDT, ATTORNEY'S DICTIONARY OF
MEDICINE AND WORD FINDER C-320 (1997).

                    2
ment of the upper jaw . . . ." Dr. Carson sought authorization for
surgical correction of Andrea's deformities because of a "pronounced
negative psychological impact on this patient as well as physical
problems to include masticatory2 insufficiency and speech problems."

Under Article III.A.(3)(e) and (11)(a)19 of the Plan, benefits are
not generally provided for dental services. One exception to the plan,
however, provides:

          (e) Oral Surgery

          Benefits are not provided for dental services. However, ben-
          efits are provided for the following limited oral surgical pro-
          cedures if performed by a dental surgeon or general
          surgeon:

          ...

          Temporomandibular Joint Dysfunction, only when medi-
          cally necessary and related to an oral orthopedic problem.

It is important to note that the Plan itself does not define Temporo-
mandibular Joint (TMJ) dysfunction, nor does it provide any stan-
dards for TMJ dysfunction.3 Despite this exception, the Plan
Administrator denied authorization for the surgery because he found
no evidence that Andrea had TMJ dysfunction.

On August 26, 1994, Dr. Carson again wrote the Plan, seeking
reconsideration of the prior denial of benefits. In this letter, Dr. Car-
son provided the American Association of Oral and Maxillofacial
Surgeons (AAOMS) parameters for TMJ dysfunction surgery and
noted that "Andrea possess [sic] all of the above listed indications and
has suffered for years with facial pain." Dr. Carson asserted that the
_________________________________________________________________
2 Pertaining to, involved in, or serving the function of chewing. 4 J.E.
SCHMIDT, ATTORNEY'S DICTIONARY OF MEDICINE AND WORD FINDER M-59
(1997).
3 The first time appellants provided any definition or standard for TMJ
dysfunction was in appellant's brief to this Court, which is outside the
scope of review.

                    3
"[o]verwhelming evidence for this literature points to the association
between skeletal malocclusions4 and the development of TMJ dys-
function, as well as other functional deficits." After a review by the
Plan's medical consultant, Peter Collis, M.D., the Plan again denied
benefits finding no evidence that Andrea had TMJ dysfunction that
would make surgical correction medically necessary.

The Plan Administrator enclosed two prior decisions of the Plan
Trustees that supported the denial of benefits. In Resolution of Dis-
pute (ROD) Case No. 88-255 and ROD Case No. 88-272, the Plan
Trustees denied coverage under the Plan in two separate, unrelated
cases involving TMJ dysfunction.

The Plan Trustees reviewed and upheld the denial of benefits under
the Plan.

Following exhaustion of administrative remedies, which also
resulted in a denial of benefits, the district court conducted a final
review of the administrative record. In his September 24, 1997 Order,
the district judge reversed the administrative denial of benefits for
Andrea's surgery. The district judge found that"[t]he record before
the Plan clearly shows that Andrea suffered from TMJ dysfunction,
that surgery was medically necessary, and was related to an oral
orthopedic problem." The district judge further found that "[t]here is
simply no medical evidence put forth by the Plan to support its posi-
tion," but that the Buchanans, "through Dr. Carson, have documented
their claim and provided the appropriate standard of care for TMJ sur-
gery, namely the AAOMS."

The Plan and Plan Administrator now appeal the district court's
final judgment pursuant to 28 U.S.C. § 1291.
_________________________________________________________________

4 A condition in which the teeth of the upper and lower jaws do not
meet properly so that the movement of the jaws is interfered with and the
best results in the process of chewing are not attainable. 4 J.E. SCHMIDT,
ATTORNEY'S DICTIONARY OF MEDICINE AND WORD FINDER M-28 (1997).

                    4
II.

The district court's entry of summary judgment is reviewed de
novo. Cole v. Keller Indust., 132 F.3d 1044, 1046 (4th Cir. 1998).
This standard applies with equal force to cases involving the denial
of benefits under ERISA. See, e.g., Brogan v. Holland, 105 F.3d 158,
161 (4th Cir. 1997).

III.

This Court has "developed a well-settled framework for review of
the denial of benefits under ERISA plans." Ellis v. Metropolitan Life
Ins. Co., 126 F.3d 228, 232 (4th Cir. 1997). Where the benefit plan
grants the administrator or the plan fiduciary discretionary authority
to determine eligibility or to construe the terms of the plan, the deci-
sion to deny benefits "must be reviewed for abuse of discretion." Id.
Under this deferential abuse of discretion standard, the administrator
or fiduciary's decision will not be disturbed if it is reasonable. Id. A
decision in this regard is "reasonable" if it is "the result of a deliber-
ate, principled reasoning process and if it is supported by substantial
evidence." Id. (emphasis added).

In determining whether or not the fiduciary abused its discretion,
this Court has developed a five-factor test. See Brogan v. Holland,
105 F.3d 158, 161 (4th Cir. 1997) (quoting Lockhart v. UMWA 1974
Pension Trust, 5 F.3d 74, 77 (4th Cir. 1993)). Specifically, the Court
must give "due consideration":

          [1] to whether administrator's interpretation is consistent
          with the goals of the plan; [2] whether it might render some
          language in the plan meaningless or internally inconsistent;
          [3] whether the challenged interpretation is at odds with the
          procedural and substantive requirements of ERISA itself;
          [4] whether the provisions at issue have been applied consis-
          tently; [5] and of course whether the fiduciaries' interpreta-
          tion is contrary to the clear language of the plan.

Id. In light of the Lockhart five-factor test, we are convinced that the
fiduciary abused its discretion.

                     5
First, the administrator's interpretation is wholly at odds with pro-
viding benefits under the Plan. Given the severe emotional and physi-
cal problems suffered by Andrea, the decision to deny her claim is
patently offensive to the Plan's goals to provide health benefits.

Second, the denial of benefits also makes the plain language of the
Plan meaningless. While it is undisputed that dental benefits are not
normally covered by the Plan, the Plan itself provides an exception
for TMJ dysfunction. The blanket denial of claims under this excep-
tion renders this exception useless; it gives the appearance of cover-
age without actually providing such coverage.

Third, the challenged interpretation is at odds with the procedural
requirements of ERISA itself. The Plan Administrator failed to com-
ply with the procedural requirements of 29 C.F.R.§ 2560.503-1,
which provides that

          (f) Content of Notice. A plan administrator . . . shall pro-
          vide to every claimant who is denied a claim for benefits
          written notice setting forth in a manner calculated to be
          understood by the claimant:

          (1) The specific reason or reasons for the denial;

          (2) Specific reference to pertinent plan provisions on
          which denial is based;

          (3) A description of any additional material or information
          necessary for the claimant to perfect the claim and an expla-
          nation of why such material or information is necessary; and

          (4) Appropriate information as to the steps to be taken if
          the participant or beneficiary wishes to submit his or her
          claim for review.

29 C.F.R. § 2560.503-1(f)(1)-(4); see also 29 U.S.C. § 1133. The Plan
Administrator's denial of Andrea's claim did not state the specific
reasons for the denial, but only the conclusory statement that Andrea
was not covered under the Plan. The record before this Court is

                    6
devoid of any evidence that the Plan Administrator notified the
Buchanans of any additional information necessary to perfect their
claim or why such information was necessary. The record is similarly
devoid of any attempts by the Plan Administrator to inform the
Buchanans of the steps required for review of the denial of their claim.5

Fourth, while it is undisputed that the Trustees have been consis-
tent in their interpretation of the TMJ exception, such consistency
weighs against them where the Plan itself does not define TMJ dys-
function.

Finally, the fiduciary's interpretation is contrary to the plain mean-
ing of the Plan. The Plan itself does not define TMJ dysfunction nor
does it provide any standards for guidance. Indeed, the Buchanans'
physician, Dr. Carson, provided the only standards in this case when
he informed the Plan of the AAOMS standards for TMJ surgery. Dr.
Carson, as the treating physician, clearly stated that Andrea suffered
from TMJ dysfunction. In addition, the treating physician, an Oral
and Maxillofacial Surgeon, was in a far better position to examine and
diagnose Andrea's condition than was the Plan's medical consultant,
Peter Collis. Therefore, the Plan abused its discretion in denying
Andrea's benefits.

The Plan argues that its decision to deny benefits was not an abuse
of discretion because the Plan provides certain"`external standards'
. . . to which the Trustees refer to ensure consistent interpretation and
application of the various plans that come within their purview." The
Plan goes on to cite its own RODs as an example of these "external
standards."

Aside from the fact that these external standards carry no preceden-
tial weight with this Court, the Plan cannot rely on its own previous
decisions to deny benefits under a Plan for which they offer no defini-
_________________________________________________________________
5 While normally such a failure to comply with ERISA's procedural
guidelines would require this Court to remand the case to the Plan
Administrator for a "full and fair" review, a remand for further action is
unnecessary where the evidence clearly shows that the Plan abused its
discretion. See Weaver v. Phoenix Home Life Mut. Ins. Co., 990 F.2d
154, 159 (4th Cir. 1993).

                     7
tions and no guidance for TMJ dysfunction, except to state that bene-
fits were denied. This circular reasoning cannot stand. There is clearly
an overwhelming distinction in this case because the treating physi-
cian, Dr. Carson, provided the only standards by which to judge this
claim -- the AAOMS parameters for TMJ surgery. The Plan never
challenged the validity nor the applicability of these standards to
Andrea's case. Additionally, these so-called "external standards" fall
outside the four corners of the policy itself and provide no notice to
potential claimants that their claim may be in peril. Hence, the Plan's
argument must fail.

IV.

For the reasons stated above, we find that the Plan abused its dis-
cretion in denying benefits to Andrea Buchanan. The judgment of the
district court is affirmed.

AFFIRMED

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