                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0484n.06
                             Filed: July 11, 2006

                                            No. 05-1511

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


THOMAS BILJAN,                                    )
                                                  )
       Plaintiff-Appellant,                       )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
AETNA LIFE INSURANCE COMPANY,                     )    EASTERN DISTRICT OF MICHIGAN
                                                  )
       Defendant-Appellee.                        )




       Before: BATCHELDER and SUTTON, Circuit Judges; COFFMAN, District Judge.*


       COFFMAN, District Judge. The appellant, Thomas Biljan, appeals the termination of

benefits under his employer’s long-term disability plan. Under the terms of this particular plan, an

employee is disabled if he cannot work at an occupation paying more than 80% of his pre-disability

income. Biljan argues both physical inability to work and inability to earn a salary at the 80% level.

Although there is sufficient evidence that Biljan is physically able to work, it does not appear that

the appellee considered the 80%-of-predisability-income requirement. Accordingly, we affirm in

part, reverse in part, and remand.


                                                  I.


       *
        The Honorable Jennifer B. Coffman, United States District Judge for the Eastern and
Western Districts of Kentucky, sitting by designation.
No. 05-1511
Biljan v. Aetna Life Insurance Company

       The appellant, Thomas Biljan, participated in a group long-term disability plan (the “Plan”)

through his employer. This Plan is governed under the Employment Retirement Income Security

Act of 1974 and is funded and administered by Aetna Life Insurance Company (“Aetna”). The Plan

defines disability as follows:


       You will be disabled while either of the following applies to you:
       In the first 24 months of a certified period of disability:
       You are not able, solely because of disease or injury, to perform the material duties
       of your own occupation; except, if you start work at a reasonable occupation you will
       no longer be deemed disabled.
       After the first 24 months of a certified period of disability:
       You are not able, solely because of disease or injury to work at any reasonable
       occupation.


       “Reasonable occupation” is defined as “any gainful activity for which one [is] . . . fitted by

education, training, or experience” so long as it generates more than 80% of one’s pre-disability

income. The Plan also requires a beneficiary to participate in a vocational rehabilitation program,

the purpose of which is to determine whether, and under what circumstances, he might re-enter the

workforce.


       Prior to becoming disabled due to joint and eye disease in 1999, Biljan worked as a machine

operator, earning an annual salary of $64,412.17. Consistent with the terms of the Plan, Biljan

participated in the vocational rehabilitation program, where it was determined that he would benefit

from a college education. Therefore, beginning in the fall of 2000, Aetna paid for Biljan to return

to school to earn an undergraduate degree. The goal was for him to return to work as an industrial

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No. 05-1511
Biljan v. Aetna Life Insurance Company

production manager, a communications manager, an employee relations specialist, or a similar

position.   Biljan graduated from Rochester College in June 2002 with a B.S. in Business

Communications and a 3.675 grade-point average. In addition to earning an undergraduate degree,

Biljan has also had successful corrective eye surgery, eliminating eye disease as a cause of his

disability. Pursuant to his vocational rehabilitation plan, after graduation Biljan was required to

make reasonable efforts to secure employment at a reasonable occupation, as defined by the Plan.

To assist him with this task, Aetna provided him with several job leads. However, despite Aetna’s

assistance, Biljan was unable to find work at a reasonable occupation.


       Under the terms of the Plan, benefits continue if, and for only so long as, Aetna determines

that a claimant is disabled. Aetna terminated Biljan’s benefits in March 2003. In the termination

letter, Aetna recognized that Biljan was compliant with his vocational rehabilitation program; that

he had the physical ability to return to work; and that he was capable of obtaining employment at

a reasonable occupation. The termination letter also referred to a labor market survey identifying

several jobs that Biljan could ostensibly perform and that qualify as reasonable employment.

Biljan’s appeals at the administrative level and in the Eastern District of Michigan were

unsuccessful. Accordingly, he filed a timely appeal in this court. At issue is whether Aetna’s

decision to terminate benefits was arbitrary and capricious. Specifically, the parties disagree as to

the sufficiency of the medical and vocational evidence supporting Aetna’s decision.


                                                 II.




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No. 05-1511
Biljan v. Aetna Life Insurance Company

       The parties agree that the court should review the Plan administrator’s decision under the

arbitrary-and-capricious standard of review, which is the least demanding form of judicial review

of an administrative decision. When applying it, the Court must decide whether the administrator’s

decision was rational in light of the Plan’s provisions. Where a reasoned explanation for a particular

outcome is possible based on the record, that outcome is not arbitrary and capricious. Williams v.

Int'l Paper Co., 227 F.3d 706, 712 (6th Cir. 2000). Although review under the arbitrary-and-

capricious standard is highly deferential, it does not automatically mandate adherence to the

administrator’s decision: “[d]eferential review is not no review, and deference need not be abject.”

McDonald v. Western-Southern Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003).


                                                 III.


       Aetna’s decision that Biljan is able to work is supported by evidence in the record. Biljan’s

ophthalmologist, his optometrist, and his family doctor have unequivocally opined that he is able

to work. Additionally, Aetna referred Biljan’s file to an independent medical consultant, Dr.

Hopkins, who confirmed that Biljan could return to work. Biljan complains that Dr. Hopkins did

not review his actual medical records, but instead relied on electronic notes of conversations with

Biljan’s doctors. Aetna’s decision to rely, in part, on Dr. Hopkins’s opinion was not arbitrary or

capricious, as Dr. Hopkins’s opinion merely echoes that of Biljan’s own doctors.


                                                 IV.




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No. 05-1511
Biljan v. Aetna Life Insurance Company

       If physical ability to work were the sole calculus of disability, we could terminate our inquiry

at this point. However, under the terms of this particular Plan and as conceded by Aetna’s counsel,

disability turns not only on a claimant’s ability to work, but also on his ability to work at a

reasonable occupation, defined as one that pays more than 80% of his pre-disability income. To

work at a reasonable occupation, one must be fitted by “training, education, or experience.”

Accordingly, when a Plan administrator determines whether a claimant is able to work at a

reasonable occupation, he must consider not only the claimant’s education, but also his training and

his experience.


       Aetna argues that it was entitled to terminate Biljan’s benefits because it paid for his

education so that he could secure employment at a reasonable occupation and because it identified

several jobs that he could perform as a result of his newly minted degree. We can find no evidence,

however, that Aetna considered Biljan’s experience or his training in determining that he could work

at a reasonable occupation. Although Aetna’s termination letter refers to a labor market survey, this

evidence is absent from the record. Nor does the record contain other documentation to show how

Aetna determined that Biljan was qualified to work at certain jobs. Instead, the record suggests that

most of the proposed occupations require years of experience that Biljan – who is moving from hard

labor to administration – appears to lack.1


       1
         The record contains information about eighteen job leads that Aetna provided to Biljan.
Of these eighteen leads, seventeen required experience. Two leads required “experience” without
quantification. Three other leads required 2 to 4 years of experience. The remaining twelve leads
required 5 or more years of experience. (Joint Appendix at 298-320). The record reflects as well
that Aetna telephoned some of these potential employers, but that Biljan failed to pursue those leads.

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No. 05-1511
Biljan v. Aetna Life Insurance Company

       Aetna fears that requiring it to show that a claimant cannot work at a reasonable occupation

will turn it into an employment service. This fear is misplaced. Nothing requires Aetna actually to

provide the claimant with a job. However, before Aetna may terminate benefits under the terms of

this Plan, it must consider whether the claimant is fit to work at a reasonable occupation after

considering all relevant factors. In this case, those factors include not only the claimant’s education,

but his training and his experience. Accordingly, we find that Aetna acted arbitrarily and

capriciously in terminating Biljan’s benefits.


                                                  V.


       For these reasons, we AFFIRM IN PART and REVERSE IN PART the district court’s order

affirming the termination of benefits, and we direct the district court to REMAND this matter to

Aetna for further proceedings consistent with this opinion.




The record does not reflect, however, that Aetna’s calls would have made any difference with regard
to the various employers’ experience requirements.

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