                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                 ___________________________________

                             No. 00-31280
                           SUMMARY CALENDAR
                 ___________________________________

DEBORA ROIG

                 Plaintiff - Appellant - Cross-Appellee

   V.

THE LIMITED LONG-TERM DISABILITY PROGRAM; ET AL.

                 Defendants

THE LIMITED Long-term DISABILITY PROGRAM

                 Defendant - Appellee - Cross-Appellant

         ___________________________________________________

            On Appeal from the United States District Court
          for the Eastern District of Louisiana, New Orleans
                              (99-CV-2460)
         ___________________________________________________
                            October 9, 2001

Before REYNALDO G. GARZA, DAVIS, and DENNIS, Circuit Judges.

PER CURIAM:1

     This case involves the denial of disability benefits under

an employee welfare benefit plan governed by the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§

1054, et seq.    Appellant-Cross-Appellee, Debora Roig (“Roig”),

contends that Appellee-Cross-Appellant, The Limited Long-term


     1
     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this opinion should not be published and is not precedent except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.

                                  1
Disability Program (“the Program”), wrongfully denied her claim

for disability benefits.

     Roig was a District Sales Manager for Victoria’s Secret

Stores, Inc. (“Victoria’s Secret”) in Louisiana from July 21,

1986 to July 14, 1998.    Victoria’s Secret is a retailer of

women’s lingerie with stores throughout the country.    As a

District Sales Manager, Roig oversaw the operation and

maintenance of several retail stores in and around New Orleans.

The job required Roig to work long hours, stand for extended

periods of time, drive extensively, and lift heavy objects.

     As a Victoria’s Secret employee, Roig participated in an

employee welfare benefit plan that provided disability benefits.

The benefit plan was self-funded, but Metropolitan Life

Insurance, Co. (“Met Life”) served as the plan administrator.

Met Life had the responsibility and discretionary authority to

determine eligibility for disability benefits, construe plan

terms, and provide a full and fair review of benefit

determinations.   Met Life did not insure and was not liable for

plan benefits.

     The plan divides benefits into two categories: 1) those paid

during the first twelve months of disability (“initial

benefits”); and 2) those paid beyond the first twelve months

(“long-term benefits”).    To qualify for initial benefits, the

employee must be “under a doctor’s care” and “unable to perform



                                  2
any and every duty related to her job.”    An employee qualifies

for long-term benefits “after the first twelve months of benefit

payments . . . if [she] cannot work at any gainful occupation for

which [she] is reasonably qualified by education, experience, or

training.”

     In September of 1995, Roig was involved in an automobile

accident.    A year later, she sought treatment at a local medical

center for lower back pain and occasional leg pain and numbness.

The attending physician diagnosed her with a moderate disc

herniation and degenerative disc disease.

     Roig was referred to Thomas P. Perone, M.D. for

neurosurgical evaluation.   Dr. Perone ordered additional testing

and evaluation.   A May 1, 1998 MRI revealed that Roig still had

disc degeneration but the herniation was only minimal, not

moderate as originally diagnosed.     Despite the improvement in the

herniated disc, on June 1, 1998, Dr. Perone determined that Roig

could no longer fulfill the requirements of her job due to the

extensive travel it required.

     On June 15, 1998, Roig visited Dr. Perone again and reported

that she had fallen at a mall that morning, striking her left

knee and further injuring her back.    During this visit, Dr.

Perone noted that although the minor disc herniation had resolved

with conservative measures, Roig still suffered from “significant

degeneration of the bottom three discs in her lumbar spine.”    As



                                  3
a result of this degeneration, Dr. Perone recommended that Roig

permanently avoid activities that were an integral part of her

job, such as lifting, bending, and driving.

     On July 13, 1998, Roig stopped working at Victoria’s Secret.

She submitted an application to Met Life for disability benefits

on August 1, 1998.   Roig attached Dr. Perone’s Attending

Physician’s Statement to the application.   In the statement, Dr.

Perone reported that he had seen Roig for treatment on March 13,

1997, April 3, 1997, and June 1, 15, and 19, 1998.   He concluded

that the degeneration of Roig’s lumbar spine, aggravated by the

fall at the mall, prevented her from performing the duties of a

Victoria’s Secret District Sales Manager.

     On August 17, 1998, Met Life asked Dr. Perone for medical

documentation it could use to evaluate Roig’s claim.   Apparently,

neither Roig nor Dr. Perone supplied any documentation for Met

Life’s initial review of her claim.   However, the Smart

Corporation, a medical records correspondence service, sent a

letter to Met Life indicating that Dr. Perone had not seen Roig

after July 14, 1998.

     Met Life denied Roig’s claims for benefits on August 27,

1998 because Roig was not under a doctor’s care as evidenced by

the absence of office visits.

     On September 15, 1998, Roig made a written request for a

review of the denial of benefits.    She attached a letter from Dr.



                                 4
Perone dated July 13, 1998.   The letter stated “Ms. Roig is under

my care for her back condition and should remain off work until I

re-evaluate her in the next several weeks.”      Dr. Perone also

wrote to Met Life on September 15.      In his letter, he stated that

he had to reschedule a July 23, 1998 appointment with Roig due to

emergency surgery, but he saw her on September 14, 1998 and

concluded that “she is unable to return to her prior job on a

permanent basis . . . because of the degenerative condition of

her lumbar spine.”   Dr. Perone then forwarded all treatment notes

and test results to Met Life.

     After reviewing the medical records, Met Life denied Roig’s

claim again.   Met Life did not interview Roig or conduct an

independent medical evaluation.       Met Life’s communications with

Roig indicate that its denial was based on three factual

conclusions: 1) Roig had not seen Dr. Perone at all from June 19,

1998 to September 14, 1998; 2) Roig did not contact Dr. Perone in

the two weeks following her June 19, 1998 visit, despite his

recommendation that she call him if she had any problems with her

back; and 3) Roig’s condition must have improved by July 14, 1998

since the herniated disc had resolved itself.

     On August 12, 1998, Roig filed a § 1132(a)(1)(B) suit in

district court against Met Life and the Plan for failure to pay

disability benefits.   The district court found that Met Life was

not a proper party to the suit and dismissed it from the



                                  5
proceedings.2    The case was submitted on the record for a bench

trial.    The district court awarded Roig initial benefits but

denied long-term benefits because the record lacked evidence to

support them.    The court also awarded Roig prejudgment interest,

post judgment interest, attorney’s fees, and costs.

     Roig appeals the district court’s denial of long-term

benefits.    By way of cross appeal, the Program appeals the

district court’s award of initial benefits, pre-judgment

interest, and attorney’s fees and costs.

                                  I.

     Met Life, the plan administrator, denied Roig’s claim for

initial benefits, but the district court reversed Met Life’s

decision and awarded Roig benefits.    We AFFIRM the decision of

the district court on this issue.

A.   Standard of Review

     In a § 1132(a)(1)(B) case, we review a “district court’s

determination of whether a plan administrator abused its

discretion–a mixed question of law and fact–de novo.”    Meditrust

Fin. Serv. Corp. v. The Sterling Chem., Inc., 168 F.3d 211, 214

(5th Cir. 1999)(quoting Sweatman v. Commercial Union Ins. Co., 39

F.3d 594, 601 (5th Cir. 1994)).   The de novo standard of review

grants us the freedom to review the plan administrator’s decision



     2
        Neither party appeals the district court’s dismissal of Met
Life.

                                  6
from the same perspective as did the district court.       See id.

Thus, we directly review the decision of the plan administrator

for an abuse of discretion.    See id.    Under this standard, we

will reverse the decision of the plan administrator if it is not

supported by substantial evidence.       See Meditrust, 168 F.3d at

215.

B.     Analysis

       To qualify for initial benefits, the employee must “be under

a doctor’s care and be certified as being unable to perform any

and every duty related to [her] job.”      The Program contends that

Roig fails to meet both components of this requirement–she was

neither under a doctor’s care nor unable to perform her job.

       The record does not support Met Life’s conclusion that Roig

was not under a doctor’s care. Roig had been visiting Dr. Perone

for more than a year prior to leaving Victoria’s Secret.      She

visited Dr. Perone at least three times in the two months

immediately prior to leaving work.     She was scheduled to see him

again in late July, but the appointment was cancelled because Dr.

Perone had to perform emergency surgery.      Roig rescheduled and

visited Dr. Perone on September 14, 1998.

       Similarly, the record does not support the conclusion that

Roig was able to perform her job.     In his September 15, 1998

letter, Dr. Perone stated that Roig is “unable to return to her

prior job on a permanent basis . . . because of the degenerative


                                  7
condition of her lumbar spine.”        Met Life, in its capacity as the

plan administrator, did not interview Roig or order an

independent medical examination.       Therefore, it has no evidence

to refute Dr. Perone’s conclusion.

     Met Life based its conclusion on the fact that Roig’s

herniated disc had improved.   However, according to Dr. Perone,

the degenerative disc disease, not the herniated disc, rendered

Roig unable to perform her job.        Without evidence to refute this

opinion, the improvement in her herniated disc does not support a

conclusion that she was able to perform her job.

     There is no substantial evidence in the record to support

the Plan’s conclusion that Roig was not under a doctor’s care and

able to perform her job.   Therefore, we AFFIRM the district

court’s award of initial benefits.



                                  II.

     The district court refused to award Roig long-term benefits.

Because our decision in Schadler v. Anthem Life Insurance Co.

precluded the district court from deciding this issue, we VACATE

its judgment and REMAND the case to the district court with

instructions to REMAND to the plan administrator.

     In Schadler, the defendants denied the plaintiff’s claim

that she was entitled to benefits under her husband’s accidental

death and dismemberment policy on the ground that her husband had


                                   8
never been issued a policy.     147 F.3d 388, 391 (5th Cir. 1998).

After the denial, the plaintiff sued the defendants in district

court to recover the unpaid benefits.      Id.   The defendants

abandoned the lack of coverage defense in district court.         Id. at

392.    Nevertheless, the district court pointed to an exclusion in

the policy for intentionally self-inflicted injury and refused to

award the plaintiff benefits because her husband had died from

such an injury.    Id.

       We held that the district court could not decide for itself

whether the self-inflicted injury exclusion precluded benefits.

Id. at 398.    We said that “the job of a district court is to

review the administrator’s fact-finding and its interpretation of

an employee benefit plan’s provisions.”      Id. at 397 (emphasis

added).    A district court may not make initial benefits decisions

for itself.    Id. at 398.   By denying benefits based upon the

self-inflicted injury exclusion, the district court passed upon

an issue the plan administrator never reached.       Id.   In short,

the district court was making a benefits decision rather than

reviewing one.    Id.    We decided that the district court should

have remanded the case to the plan administrator when it became

clear that the initial ground for denial was no longer at issue.

Id.

       Just as in Schadler, the district court in this case made an

initial benefits decision.     Met Life denied Roig initial

                                    9
benefits.   Consequently, it never reached the issue of whether

she was entitled to long-term benefits because they are only

available after the payment of initial benefits.    After deciding

that Met Life abused its discretion by denying initial benefits,

the district court turned to the issue of whether Roig was

entitled to long-term benefits and denied them on the ground that

the record did not contain evidence to support such an award.      In

so doing, the district court was no longer reviewing a plan

administrator’s benefits decision, but making one of its own.

Once the district court reached the long-term benefits issue, one

that had not been passed upon by the plan administrator, Schadler

required it to remand the case to the plan administrator.    Since

it did not, we VACATE the district court’s judgment that Roig is

not entitled to long-term benefits.    We REMAND to the district

court with instructions that it REMAND the case to the plan

administrator to determine whether Roig is entitled to long-term

benefits.

                                III.

     The district court awarded Roig pre-judgment interest on her

award of disability benefits.   A district court may award

prejudgment interest if: 1) the federal act creating the cause of

action does not preclude prejudgment interest; and 2) the award

of prejudgment interest furthers the congressional policies

underlying the act.   Carpenters Dist. Council of New Orleans v.



                                 10
Dillard Dept. Stores, Inc., 15 F.3d 1275, 1288 (5th Cir. 1994).

Whether prejudgment interest is actually awarded in a particular

case is within the district court’s discretion.     Id.

     ERISA does not preclude an award of prejudgment interest,

and we have recognized that “an award of prejudgment interest

under ERISA furthers the purposes of that statute by encouraging

plan providers to settle disputes quickly and fairly.”     Hansen v.

Continental Ins. Co., 940 F.2d 971, 984 (5th Cir. 1991).    Since

both prerequisites were met, the district had discretion to award

prejudgment interest, and, given that the Plan wrongfully denied

Roig benefits, we do not think the district court abused its

discretion.

                                IV.

     The district court awarded Roig attorneys’ fees and costs.

We review this decision only for an abuse of discretion.     Salley

v. E.I. DuPont de Nemours & Co., 966 F.2d 1011, 1016 (5th Cir.

1992).   Having found no such abuse, we AFFIRM.

     ERISA allows courts to award “a reasonable attorneys’ fee

and costs of action to either party.”    29 U.S.C. § 1132(g)(1).

This award is purely discretionary.     Bellaire Gen. Hosp. V. Blue

Cross Blue Shield of Mich., 97 F.3d 822, 832-33 (5th Cir. 1996).

When exercising this discretion, the court should consider the

following factors:




                                11
     1) the degree of the opposing parties’ culpability or
     bad faith; 2) the ability of the opposing parties to
     satisfy an award of attorneys’ fees; 3) whether an
     award of attorneys’ fees against the opposing party
     would deter other persons acting under similar
     circumstances; 4) whether the parties requesting
     attorneys’ fees sought to benefit all participants and
     beneficiaries of an ERISA plan or to resolve a
     significant legal question regarding ERISA itself; and
     5) the relative merits of the parties position.

Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1458 (5th Cir.

1995)(quoting Iron Workers Local #272 v. Bowen, 624 F.2d 1255,

1266 (5th Cir. 1980).   No single factor is decisive, but these

factors are “the nuclei of concerns that a court should address.”

Bowen, 624 F.2d at 1266.

     On balance, the factors favor an award of attorneys’ fees

and costs.   Though Roig did not bring suit to benefit all

participants or resolve a significant legal question, the Program

can pay the fees, an award will serve as a deterrent to future

delays and wrongful denials, and, as evidenced by our opinion,

the merits of the case favor Roig.    For these reasons, we AFFIRM

the district court’s award of attorneys’ fees and costs.

                                IV.

     In conclusion, we AFFIRM the district court in all respects

except that we VACATE its judgment denying Roig benefits beyond

the initial twelve months of her disability.   We REMAND to the

district court with instructions to REMAND to the plan

administrator for further proceedings consistent with this

opinion.

                                 12
