     Case: 11-50500     Document: 00511768641         Page: 1     Date Filed: 02/27/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         February 27, 2012

                                    No. 11-50500                           Lyle W. Cayce
                                  Summary Calendar                              Clerk



JOHN JURASIN,

                                                  Plaintiff-Appellant
v.

GHS PROPERTY & CASUALTY INSURANCE COMPANY; CAPROCK
CLAIMS MANAGEMENT, L.L.C.; ED BRADY, as Plan Administrator;
DILLON RESOURCES, INC., Occupational Injury Benefit Plan,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:09-CV-562


Before GARZA, SOUTHWICK and HAYNES, Circuit Judges.
PER CURIAM:*
        John Jurasin seeks long-term disability benefits for a neck condition he
claims resulted from an accident during work.                His employer provides an
Occupational Injury Benefit plan subject to the Employee Retirement Income
Security Act (ERISA).           The plan is administered by Caprock Claims
Management and funded with an insurance policy issued by GHS Property &

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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Casualty. Caprock informed Jurasin his neck condition was not compensable.
A review board also denied his claim. Jurasin brought suit, but the district court
granted summary judgment to the defendants. We AFFIRM.
                                BACKGROUND
      On January 21, 2008, while removing a tarp from his tractor-trailer, John
Jurasin slipped on some mud. Although he avoided a fall by grasping a rail, he
claimed to have heard a “pop.” Shortly thereafter, he sought treatment for pain
to his “right back and right abdominal wall.” After some improvement, Jurasin
returned to work with light-duty restrictions. By February 1, he resumed
unrestricted assignments after having completed physical therapy.
      Jurasin complained of renewed lower thoracic back pain that March and
was referred to a pain management specialist. He received a cortisone shot due
to a knot in his back. Complications ensued. Jurasin developed an abscess
which required surgery. After a hospital stay, he received home health care. In
July, an orthopedic surgeon, Dr. Dar, suggested conditioning and rehabilitation,
known as work hardening, and he sent Jurasin to another pain manager. Dr.
Dar reviewed MRI films and made what he termed an “incidental finding” that
Jurasin’s C6-7 cervical disc in the neck was herniated; Dar further noted that
Jurasin was not experiencing neck discomfort.
      An independent medical examination on August 21 found that Jurasin’s
C6-7 herniation was not compressing his spinal cord and that his cervical spine’s
range of motion was unrestricted.        Several other doctors specializing in
orthopedics and neurology expressed the opinion that his neck condition was
chronic and preexisting, not traceable to Jurasin’s injury at work. On November
18, 2008, Caprock informed Jurasin that it had determined, after consideration
by a Medical Review Officer, that his cervical condition was not compensable.
Coverage was limited to the injury to his thoracic and lumbar spine. For the



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                                 No. 11-50500
compensable injuries, the plan ultimately paid over $32,000 in medical expenses
and $17,000 in disability benefits.
      On February 4, 2009, Jurasin was examined by Dr. Garza-Vale. This
doctor found the neck injury was preexisting but that Jurasin’s accident had
aggravated the injury. His findings were submitted to Caprock. After reviewing
the medical evidence, including the submission from Dr. Garza-Vale, Caprock
again informed Jurasin, on March 20, 2009, that the only compensable injury
was to his back. Ten days later, Dr. Garza-Vale again examined Jurasin; a letter
reiterating his view more emphatically was furnished to the GHS appeals board.
The appeals board denied Jurasin’s claim on April 17, 2009.
      Pursuant to ERISA’s civil enforcement provision, Jurasin filed suit
challenging the denial of benefits for his cervical condition. See 29 U.S.C. §
1132(a)(1)(B). The court granted summary judgment for the plan defendants,
Caprock and GHS. Jurasin timely appealed. In addition to contesting the
coverage decision, Jurasin claims that the district court erred in striking parts
of his own affidavit, as well as one from Dr. Garza-Vale.
                                 DISCUSSION
      We review the grant of summary judgment de novo and apply the same
standard as the district court. Schexnayder v. Hartford Life and Accident Ins.
Co., 600 F.3d 465, 468 (5th Cir. 2010). When, as here, the administrator of an
ERISA plan has discretion to determine eligibility and interpret plan terms, the
plan’s denial is reviewed for an abuse of discretion. Id. “A plan administrator
abuses its discretion where the decision is not based on evidence, even if
disputable, that clearly supports the basis for its denial.” Id. (quotation marks
and citation omitted). We are not “to engage in full review of the motivations
behind every plan administrator’s discretionary decisions.” Crosby v. La. Health
Serv. and Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011) (quotation marks and
citation omitted). Our review is to “assure that the administrator’s decision

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fall[s] somewhere on a continuum of reasonableness – even if on the low end.”
Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 398 (5th Cir. 2007)
(quotation marks and citation omitted).
        We employ a two-step inquiry as to ERISA plan decisions. We first decide
if the determination by the plan administrator was legally correct, and if it is,
there is no abuse of discretion. Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d
240, 246 n.2 (5th Cir. 2009). If the determination is not legally correct, we then
determine whether the administrator’s decision was an abuse of discretion. Id.
Because Jurasin does not assert any improper plan interpretation, we exercise
our discretion to bypass the first step here. Id.
I.      Conflict of Interest
        Jurasin alleges two sources of conflict that “should have tilted the [district]
court’s review toward a less-than-deferential standard.” Though Jurasin refers
to some of our earlier caselaw about a sliding scale of review, this Court no
longer employs that method. Holland, 576 F.3d at 247-248 & n.3 (discussing
Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008)). It is fair to say that “conflicts
are but one factor among many,” and the “specific facts of the conflict will dictate
its importance.” Id. at 247-48.
        Both his arguments relate to a conflict of interest rooted in Caprock’s dual
role as the evaluator and the payor. See, e.g., Holland, 576 F.3d at 248 n.3. We
are required to take into account this dual role in reviewing a benefit
determination. Metro. Life, 554 U.S. at 115. Jurasin claims bias stemming from
the fact that the Medical Review Officer on whom Caprock relied for its
November 2008 denial, Dr. Cunningham, was employed by Blue Cross and Blue
Shield of Oklahoma, a division of the funding insurance company GHS.
Jurasin’s suggestion that Cunningham provided a dishonest medical assessment
merely due to an attenuated employment relationship with GHS is too
theoretical and speculative for us to entertain. See Davis v. Unum Life Ins. Co.

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of Am., 444 F.3d 569, 575-76 (7th Cir. 2006). There needs to be, for example,
evidence that Cunningham had “some specific stake in the outcome of [Jurasin’s]
case, such as paying the doctors more” when claims were denied. Id. at 575.
         Jurasin also claims an institutional-level conflict because the review board
that processed his appeal was entirely composed of GHS employees. As noted,
Caprock has been delegated the responsibility of independently deciding claims
in the first instance. Conflict takes a “case-specific importance.” Metro. Life, 554
U.S. at 117. Jurasin points to nothing suggesting a “likelihood that it affected
the benefits decision,” such as an allegation that this “insurance company
administrator has a history of biased claims administration,” misconduct by the
board members, or the absence of firewalls and other internal operating
procedures to insulate the decisionmakers. Id.
         We agree with the district court that the unsupported assertions here are
not evidence of a conflict. Schexnayder, 600 F.3d at 470.
II.      Abuse of Discretion
         Jurasin asserts the district court erred by striking portions of Dr. Garza-
Vale’s and Jurasin’s affidavits. Evidence is irrelevant to the validity of the
decision regarding coverage under the plan unless it “is in the administrative
record, relates to how the administrator has interpreted the plan in the past, or
would assist the court in understanding medical terms and procedures.” Crosby,
647 F.3d at 263. The district court hewed carefully to this limitation, striking
offending portions and admitting only those that assisted “the district court in
understanding the medical terminology or practice.”
         The evidence required in support of the plan’s decision is “more than a
scintilla, less than a preponderance, and is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Ellis v.
Liberty Life Assurance Co. of Boston, 394 F.3d 262, 273 (5th Cir. 2004) (quotation
marks and citation omitted). Jurasin’s claim that the accident worsened his

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condition has some evidentiary support, but that is not enough for reversal. See
id.    The physician who administered Jurasin’s independent medical exam
concluded Jurasin’s neck condition was unrelated to the incident at work:
         In my opinion, the injuries sustained from the work injury of 1/21/08
         are the abdominal wall strain, thoracic strain/sprain, and lumbar
         strain/sprain. . . . More likely than not, the herniated disc at C6-7
         was a pre-existing herniation. There is no mention made in the
         medical records of any neck pain or arm pain that would date back
         to the 1/21/08 injury.
         Jurasin relies on the opinion of Dr. Garza-Vale, who examined Jurasin
only after he was denied coverage. That doctor agreed with the other doctors
that the neck spur preexisted the injury at work. He believed, though, that the
neck condition was traceable to work because it first became symptomatic after
the accident. That evidence did not have to be accepted in light of contrary
medical findings. Jurasin’s argument that the review process ignored the
contrary perspective of Dr. Garza-Vale is incorrect. When Caprock informed
Jurasin on January 21, 2008 that it was upholding its earlier denial, it reported
that it had reviewed Dr. Garza-Vale’s findings.
         In his brief, Jurasin also discusses the possibility of “referred pain,” a
phenomenon by which an injury at one location in the body manifests as pain
elsewhere. That possibility is relevant as it could explain why Jurasin did not
report any neck pain soon after the injury at work. That opinion was presented
and not found to control over the other medical evidence. We do not weigh the
evidence on our review, but only determine whether there is some evidence to
support the administrator’s decision. There is.
         “We reach a finding of abuse of discretion only where the plan
administrator acted arbitrarily or capriciously.” Holland, 576 F.3d at 246
(quotation marks and citation omitted). That did not occur.
         AFFIRMED.



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