     Case: 15-40597   Document: 00513305360    Page: 1   Date Filed: 12/11/2015




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


                                No. 15-40597                            FILED
                                                                 December 11, 2015
                                                                   Lyle W. Cayce
JUDY HAGEN,                                                             Clerk

                                         Plaintiff - Appellant
v.

AETNA INSURANCE COMPANY; HEWLETT PACKARD COMPANY,

                                         Defendants - Appellees


                Appeal from the United States District Court
                     for the Eastern District of Texas


Before JOLLY, HAYNES, and COSTA, Circuit Judges.
HAYNES, Circuit Judge:
      Plaintiff Judy Hagen (“Mrs. Hagen”) brings this suit against defendants
Aetna Life Insurance Company (“Aetna”) and Hewlett Packard Company
(“Hewlett Packard”) to recover benefits as the beneficiary of her husband’s
group life insurance plan under 29 U.S.C. § 1132(a)(1)(B). She appeals from
the district court’s final judgment affirming the decision of the ERISA plan
administrator to deny her benefits.   For the reasons explained below, we
AFFIRM.
                               I. Background
      Mrs. Hagen’s husband, David Hagen, was an employee of Hewlett
Packard and participated in the company’s Comprehensive Welfare Benefits
Plan, which included Basic Life Insurance Coverage and Basic and
Supplemental Accidental Death and Personal Loss (“AD&PL”) coverage under
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a plan issued and administered by Aetna. Mr. Hagen’s AD&PL policy (the
“Policy”) was effective on January 1, 2010, and he named his wife, Mrs. Hagen,
as the beneficiary.
      The terms of the Policy state that to receive payment under the
accidental death benefit provisions, Aetna must receive proof that, inter alia,
death “was a direct result of a bodily injury suffered in an accident.” The Policy
states that an “accident” is “a sudden and external trauma that is; unexpected;
and unforeseen; and is an identifiable occurrence or event producing, at the
time, objective symptoms of a [sic] external bodily injury.” To qualify as a
covered “accident,” an occurrence or event “must not be due to, or contributed
by, an illness or disease of any kind including a reaction to a condition that
manifests within the human body or a reaction to a drug or medication
regardless of the reason [the insured] ha[s] consumed the drug or medication.”
The Policy defines “injury” as “[a]n accidental bodily injury that is the sole and
direct result of . . . [a]n unexpected or reasonably unforeseen occurrence or
event . . . or the reasonable unforeseeable consequences of a voluntary act by
the person.” The Policy specifies that “[a]n injury is not the direct result of
illness,” and defines illness as “[a] pathological condition of the body that
presents a group of clinical signs and symptoms and laboratory findings
peculiar to it and that sets the condition apart as an abnormal entity differing
from other normal or pathological body states.”
      Additionally, the Policy contains several exclusions that preclude receipt
of benefits for a loss when the loss is caused or contributed to by “bodily or
mental infirmity,” “illness, ptomaine, or bacterial infection,” “use of alcohol,”
“use of intoxicants,” or “medical or surgical treatment.” However, a loss that
is caused or contributed to by illness, ptomaine, or bacterial infection, or
medical or surgical treatment is not excluded when the loss is caused by “an


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                                  No. 15-40597
infection which results directly from the injury . . . [or] [s]urgery needed
because of the injury.”
       On August 6, 2010, while the Policy was in effect, Mr. Hagen fell in his
home, fracturing his right hip. Mr. Hagen was taken to the hospital where he
was told he would require hip surgery. The doctors who examined him noted
Mr. Hagen’s extensive medical history and that he suffered from a number of
ongoing health problems. He was a regular smoker and a chronic alcoholic who
drank two six-packs of beer a day; he had previously suffered from lung cancer;
he suffered from increased pedal edema, hyperkalemia, and a deep vein
thrombosis in his right leg; and at the time of the fall, he suffered from Chronic
Obstructive Pulmonary Disorder (COPD). One physician’s notes discuss Mr.
Hagen’s diagnosis of COPD, and state that Mr. Hagen reported that he could
not walk long distances, had a history of difficulty with falls, and felt he was
severely limited. The doctor concluded that his level of functioning due to his
COPD had been very poor.            Additionally, Mr. Hagen was generally
malnourished, was minimally ambulatory, and spent most of his time lying in
bed or sitting. Mr. Hagen had surgery for his hip; although he initially seemed
to be recovering from surgery, he ultimately died a couple of weeks afterward.
         An autopsy was performed the following day, and the report states that
Mr. Hagen’s cause of death was “complications of blunt force trauma of lower
extremity with intertrochanteric fracture of femur” and lists as contributory
causes     Mr.   Hagen’s   COPD,     chronic   alcoholism,     and    hypertensive
cardiovascular disease. Under manner of death, the report reads: “Accident
(Fell).”
       Following Mr. Hagen’s death, Mrs. Hagen timely submitted a claim to
Aetna for AD&PL benefits under the Policy. Aetna requested, received, and
reviewed Mr. Hagen’s medical records, and on October 12, 2011, informed Mrs.
Hagen that her claim was being denied because
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                                  No. 15-40597
             [t]here [was] nothing in the file indicating that Mr.
             Hagen suffered a bodily injury in an accident that was
             significant enough to cause his death and his death
             was the result of that injury, rather his death was
             caused or contributed to by a bodily infirmity, illness
             and disease, use of alcohol, use of intoxicants and
             medical or surgical treatment which are limitations
             excluded by the Policy.”
Mrs. Hagen requested that Aetna review its first determination, and on March
7, 2012, Aetna denied Mrs. Hagen’s claim for a second time.                  Aetna
acknowledged in this denial letter that it should not have initially denied the
claim based on the Policy’s exclusions for medical or surgical treatment, or Mr.
Hagen’s use of alcohol or use of intoxicants, but concluded that Mr. Hagen’s
“death was more consistent with his pulmonary compromise, and not injuries
from his fall.” Further, it concluded that “his fall was caused or contributed to
by his overall poor health status, and would therefore be excluded under the
terms of the Policy.” Thus, two possible bases for Aetna’s denial emerge:
(1) that Mr. Hagen’s fall was not an “accident” because it was caused or
contributed to by his various illnesses; and (2) that his death was not a covered
“loss” because it was not caused by injury from the fall, but rather resulted
from his contributing medical conditions.
      Mrs.    Hagen    filed   suit   against   defendants    under    20    U.S.C.
§ 1132(a)(1)(B), seeking recovery of the AD&PL plan benefits. On cross-
motions for summary judgment, the district court adopted the magistrate
judge’s report and recommendation and granted judgment for Aetna. Mrs.
Hagen timely appealed.
                     II. Jurisdiction and Standard of Review
      This case presents a claim for recovery of group life insurance benefits
governed by the Employee Retirement Income Security Act of 1974 (“ERISA”).
The district court had subject matter jurisdiction over this action pursuant to

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29 U.S.C. § 1132(e)(1). We have jurisdiction to review the district court’s grant
of summary judgment in favor of defendants under 28 U.S.C. § 1291.
      We review a district court’s grant of summary judgment de novo,
applying the same standards as the district court. Trinity Universal Ins. Co.
v. Emp’rs Mut. Cas. Co., 592 F.3d 687, 690 (5th Cir. 2010). When, as here, the
language of an ERISA benefits plan grants the plan administrator
discretionary authority to interpret the plan and determine eligibility for
benefits, the plan administrator’s denial of benefits is reviewed for an abuse of
discretion. Cooper v. Hewlett-Packard Co., 592 F.3d 645, 651–52 (5th Cir.
2009). To avoid reversal, the plan administrator’s determination “must be
supported by substantial evidence in the administrative record.” High v. E-
Systems Inc., 459 F.3d 573, 576 (5th Cir. 2006) (citing Ellis v. Liberty Life
Assurance Co., 394 F.3d 262, 273 (5th Cir. 2004) (“If the plan fiduciary’s
decision is supported by substantial evidence and is not arbitrary and
capricious, it must prevail.”)). “Substantial evidence 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.” Cooper, 592 F.3d at 652
(quoting Ellis, 394 F.3d at 273). We do not “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),
but instead “assure that the administrator’s decision fall[s] somewhere on a
continuum of reasonableness—even if on the low end,” Corry v. Liberty Life
Assurance Co. of Bos., 499 F.3d 389, 398 (5th Cir. 2007).
                                 III. Discussion
      Mrs. Hagen contends that the district court erred in adopting the Report
and Recommendation of the magistrate judge by: (1) failing to reduce the
deference afforded Aetna’s determination in light of Aetna’s conflict of interest;
(2) concluding that substantial evidence supported Aetna’s determination that
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                                       No. 15-40597
Mr. Hagen’s fall was not an accident; and (3) failing to conclude that Aetna’s
interpretation of the Policy’s exclusions clause was contradictory to the plain
language of the Policy. 1
       A. Aetna’s Conflict of Interest
       Mrs. Hagen argues that the district court should have reduced the level
of deference afforded Aetna’s determination because Aetna had a conflict of
interest as both the insurer and the administrator of Mr. Hagen’s plan.
Specifically, Mrs. Hagen contends that Aetna’s conflict of interest should be
given greater weight as a factor in the court’s analysis for three reasons:
(1) Aetna’s claims process was procedurally unreasonable; (2) Aetna has a
history of biased claims administration; and (3) Aetna did not take steps to
reduce its potential bias in this case. Defendants concede that Aetna was
operating under a conflict of interest, but argue that the magistrate judge
appropriately considered all of the circumstances of Aetna’s claims
administration and correctly found that the evidence to support decreasing the
level of deference was lacking. 2
       In reviewing a plan administrator’s determination of benefits, we take
into consideration whether the administrator has a conflict of interest,



       1 Because we conclude that substantial evidence in the administrative record supports
Aetna’s determination that Mr. Hagen’s fall was not a covered “Accident,” we need not reach
this last point.
       2  More specifically, Mrs. Hagen argues that the district court erred in adopting the
magistrate judge’s recommendation that Aetna should be given “all but a modicum of
deference.” This language, cited by both the magistrate judge and Mrs. Hagen, refers to the
“sliding-scale” methodology this court used to assess the potential impact of a conflict of
interest before the Supreme Court’s holding in Metropolitan Life Insurance Co. v. Glenn, 554
U.S. 105 (2008). Although the magistrate judge relied on outdated language in assessing
Aetna’s determination in light of its conflict of interest, the effect of the magistrate judge’s
analysis was to consider Aetna’s conflict as a factor, as required by Glenn. See Holland v.
Int’l Paper Co. Ret. Plan, 576 F.3d 240, 248 n.3 (5th Cir. 2009). In our de novo review of the
district court’s judgment, we will consider Aetna’s conflict as merely a factor among others in
weighing whether Aetna abused its discretion.
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meaning the administrator “both evaluates claims for benefits and pays
benefits claims.” Truitt v. Unum Life Ins. Co. of Am., 729 F.3d at 497, 508 (5th
Cir. 2013) (citing Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 112 (2008), and
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). “[C]onflicts
are but one factor among many that a reviewing judge must take into
account . . . [and] should prove more important . . . where circumstances
suggest a higher likelihood that [the conflict] affected the benefits decision . . .
[and] less important . . . where the administrator has taken active steps to
reduce potential bias and to promote accuracy.” Glenn, 554 U.S. at 116–17.
Circumstances suggesting a higher likelihood that a plan administrator’s
conflict of interest affected their decision exist where the insurer has a history
of biased claims administration or where the circumstances surrounding the
determination suggest procedural unreasonableness. Truitt, 729 F.3d at 508–
09 (quoting Glenn, 554 U.S. at 117–18, and Schexnayder v. Hartford Life &
Accident Ins. Co., 600 F.3d 465, 469 (5th Cir. 2010)). The factors we consider
are case specific, and any one factor may “act as a tiebreaker when the other
factors are closely balanced, the degree of closeness necessary depending upon
the tiebreaking factor’s inherent or case-specific importance.” Id. at 117. “[A]
conflict of interest does not change the standard of review but affects only the
amount of deference given under an abuse of discretion standard of review.”
Green v. Life Ins. Co. of N. Am., 754 F.3d 324, 330 n.4 (5th Cir. 2014).
      1. Procedural Unreasonableness of Aetna’s Claims Process
      Mrs. Hagen argues that Aetna’s process in reaching its determination on
her claim was procedurally unreasonable because Aetna took 400 days to make
a determination, a medical opinion purportedly used in making the
determination was “missing,” and Aetna did not take precautions to avoid bias
in this case. We hold that the administrative record supports the district


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court’s conclusion that Aetna’s determination of Mrs. Hagen’s claim was not
procedurally unreasonable.
      Mrs. Hagen points first to the lengthy delay involved in Aetna’s
determination of her claim as evidence of procedural unreasonableness. We
conclude that the evidence does not support an inference that the delay was a
“fishing expedition.” See Truitt, 729 F.3d at 515 (finding that an administrator
gave “careful consideration” of a claim after a “years-long investigation” during
which it “consulted with, or reviewed reports by, more than ten medical and
vocational experts” and gave the claimant opportunities to introduce evidence
in support of her claim).
      Mrs. Hagen also points to an unfulfilled medical referral as evidence of
procedural unreasonableness. Before Aetna issued the first denial of Hagen’s
claim, it issued a referral for a medical consultant, Margaret Centurelli, to
review Mr. Hagen’s medical records, but there were no opinions by Centurelli
provided to Mrs. Hagen as a result of that referral. Mrs. Hagen suggests that
this disappearance indicates that either Centurelli did not complete the
referral, or that Aetna did not retain her opinions. Aetna has clarified through
the affidavit of Beth Johnson, a Senior Life Claim Analyst, that Centurelli
ultimately did not complete the referral because at the time she did not handle
the type of medical review required for Mrs. Hagen’s claim. Johnson further
explains that she ultimately determined that a medical review was not needed
because there was sufficient evidence in the administrative record to deny the
claim without one. Mrs. Hagen has not proffered contrary evidence, and this
evidence does not show procedural unreasonableness. There is no indication
that, in deciding not to seek medical review, Aetna ignored relevant evidence
in the administrative record or requested information from Mrs. Hagen that it
then refused to review. See, e.g., Glenn, 554 U.S. at 118 (finding it procedurally
unreasonable to request that claimant petition the Social Security Administration
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for benefits and then ignore that agency’s finding of disability in its own
independent review); Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 250 (5th
Cir. 2009) (“Holland did not supplement the record with other evidence in this
case, nor can he point to evidence that the Plan Administrator failed to consider.”)
       Finally, Mrs. Hagen argues that the fact that Aetna’s reason for denying
her claim in its second denial was different from the reason given in the first
letter denying her claim evinces procedural reasonableness. Mrs. Hagen is
correct that Aetna, to some extent, changed its rationale for denying her claim
in its second denial. But the fact that Aetna slightly altered its basis for denial
during its second review, which included the medical review of a nurse
consultant, is not evidence of procedural unreasonableness. If anything, it
demonstrates that Aetna’s review process involved giving Mrs. Hagen’s claim
a meaningful second look. Ultimately, Mrs. Hagen has not provided evidence
that suggests that the method by which Aetna made its determination in her
case was procedurally unreasonable.
       2. History of Biased Claims Administration
       Mrs. Hagen contends that Aetna’s conflict should be given greater weight
in the court’s analysis because it has a history of biased claims administration.
The only evidence cited by Mrs. Hagen in support of this claim is the fact that
the nurse consultant, Lynn Kenney, Aetna employed to review Mr. Hagen’s
medical record has denied 17 of the 20 claims she reviewed for Aetna over the
last five or six years, and that Kenney is Aetna’s employee. 3 Mrs. Hagen


       3 Mrs. Hagen also complains that Aetna refused to allow her to depose Kenney
regarding her prior claim denials. This allegation misstates the record. The record evidence
Mrs. Hagen cites in support of this contention shows only that Aetna objected to an
interrogatory that sought identification of all claims in which Aetna interpreted the plan
exclusions relied upon in denying Mrs. Hagen’s claim, and that Mrs. Hagen never noticed the
deposition of Kenney (or any other Aetna witness regarding Aetna’s history of interpreting
the relevant plan exclusions). This can hardly be interpreted as a refusal by Aetna to permit
Mrs. Hagen to depose Kenney.
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contends that “Aetna financially benefits from Nurse Kenney’s history of
denials, and Nurse Kenney financially benefits from Aetna.” This evidence
alone is insufficient to show a history of biased claims administration. First,
the mere fact that Kenney has denied a majority of the claims she has
reviewed, without any additional information regarding the context of those
denials, does not show that Aetna’s claims administration is biased. Compare
Chronister v. Unum Life Ins. Co. of Am., 563 F.3d 773, 776 (8th Cir. 2009)
(finding that insurer had a history of biased claims administration based on
well-documented pattern of “erroneous and arbitrary benefit denials, bad faith
contract misinterpretations, and other unscrupulous tactics”), with Holmstrom
v. Metro. Life Ins. Co., 615 F.3d 758, 768 (5th Cir. 2010) (rejecting a “batting
average” approach to assessing the weight to give a plan administrator’s
conflict of interest, wherein the plaintiff compared the number of federal
decisions reversing denials of benefits to the number of decisions affirming
denials). Nor does the mere presence of an employment relationship between
the nurse consultant and Aetna suffice to demonstrate that Aetna has a history
of biased claims administration. See Jurasin v. GHS Prop. & Cas. Ins. Co., 463
F. App’x 289, 292 (5th Cir. 2012) 4 (requiring specific evidence that employee
had a specific stake in the outcome of plaintiff’s claim, such as the company
paying employee more for denials than for grants of benefits (quoting Davis v.
Unum Life Ins. Co. of Am., 444 F.3d 569, 575–76 (7th Cir. 2006)).
       3. Steps Taken to Reduce Bias
       Finally, Mrs. Hagen contends that Aetna’s conflict of interest is a more
significant factor because there is no evidence in the record that Aetna has
taken any steps to reduce its potential bias or promote accuracy in its claims



       4Although Jurasin is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
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determinations.     While there are steps, such as “walling off claims
administrators from those interested in firm finances, or . . . imposing
management checks that penalize inaccurate decisionmaking irrespective of
whom the inaccuracy benefits,” Glenn, 554 U.S. at 117, that an insurer can
take to reduce its potential bias, there is no requirement that an insurer do so.
Absent other evidence suggesting procedural unreasonableness or warranting
treatment of the conflict as a more significant factor, the mere fact that Aetna
did not utilize any such precautions is not sufficient to justify giving Aetna’s
conflict greater weight. Cf. Schexnayder, 600 F.3d at 470–71 (weighing an
insurer’s failure take precautions to minimize an inherent conflict of interest
in favor of finding bias only after noting the circumstances independently
suggested procedural unreasonableness that contributed to an impression of
bias). Accordingly, we conclude that Aetna’s conflict of interest need not be
given greater weight in considering whether Aetna abused its discretion.
      B. Whether Substantial Evidence Supports Aetna’s Determination that
      Mr. Hagen’s Fall Was Not an “Accident”
      We now consider whether substantial evidence supports Aetna’s
determination that Mr. Hagen’s fall was not an “accident,” as that term is
defined under the Policy. To be entitled to payment of an accidental death
benefit under the Policy, the claimant must provide proof that death “was a
direct result of a bodily injury suffered in an accident.” “Accident” is a defined
term that means “a sudden external trauma that is; unexpected; and
unforeseen; and is an identifiable occurrence or event producing, at the time,
objective symptoms of a [sic] external bodily injury” and is not “due to, or
contributed by, an illness or disease of any kind.” Aetna contends that Mr.
Hagen did not suffer a covered “accident,” because his fall was due to or
contributed to by his illness. Thus, the inquiry before us is whether there is



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substantial evidence in the record to support Aetna’s determination that Mr.
Hagen’s fall was due to or contributed to by his illness. 5
       Mrs. Hagen contends that there is no such evidence in the administrative
record. Instead, she argues that the record plainly shows that Mr. Hagen
experienced no light-headedness, headache, seizure, chest pain, shortness of
breath, palpitations, sweating, vomiting, increase in cough, fever or chills,
dizziness, vertigo, loss of consciousness, or blurry vision before the fall. Rather,
Mrs. Hagen claims that the evidence supports only the conclusion that Mr.
Hagen fell because he either slipped, tripped, or lost his balance, and that the
fall was purely an “accident” as defined by the Policy.                   Aetna contends,
conversely, that Mr. Hagen’s fall was due to or contributed to by his illnesses.
       There is certainly evidence in the record to support Mrs. Hagen’s account
of Mr. Hagen’s fall. But the question for this court is not whether substantial
evidence supports Mrs. Hagen’s account of Mr. Hagen’s fall, but whether “some
concrete     evidence     in    the    administrative       record”     supports     Aetna’s
determination that Mr. Hagen’s fall was due to or contributed to by his illness.
Robinson v. Aetna Life Ins., Co., 443 F.3d 389, 395 (5th Cir. 2006) (citation
omitted).
       We conclude that there is sufficient evidence in the record to support
such a determination. For example, on August 4, 2010, two days before Mr.
Hagen’s fall, his primary physician documented that Mr. Hagen himself


       5 The parties dispute the level of causation required by the terms of the plan. Mrs.
Hagen contends that there must be substantial evidence that Mr. Hagen’s illness was a but-
for cause of his fall for her claim to be excluded. Defendants seem to argue that the plan
requires only that the illness be a contributing cause. Courts have long struggled to interpret
causation standards in policy exclusion clauses like the one at issue here. See, e.g., Sekel v.
Aetna Life Ins. Co., 704 F.2d 1335, 1337–38 (5th Cir. 1983); Hall v. Metro Life Ins. Co., 259
F. App’x 389, 594 (4th Cir. 2007); George v. Reliance Standard Life Ins. Co., 776 F.3d 349,
355–56 (5th Cir. 2015). Because we conclude that there is substantial evidence to support
the conclusion that Mr. Hagen’s illness was a but-for cause of his fall, we need not resolve
this dispute.
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reported “feeling fatigue, having trouble eating, feeling dizzy, muscle pain,
weakness in legs, [and that his] right and left leg[s] [were] swollen.” The
physician also noted that Mr. Hagen’s “breathing seem[ed] much worse,” that
he “fe[lt] extremely tired,” that his “muscles [were] very weak,” and that he
was experiencing “swelling of [his] legs.” The physician then created treatment
plans for Mr. Hagen’s diagnoses of edema, fatigue and malaise, weakness of
muscles, hypokalemia, and COPD. Medical records from Mr. Hagen’s hospital
stay after his fall note that Mr. Hagen had recent complaints of lower extremity
swelling, that as a result of his COPD, Mr. Hagen reported that he could not
walk long distances, had a history of difficulty with falls, and felt he was
severely limited, and that Mr. Hagen’s level of functioning due to his COPD
had been very poor. At least one account of Mr. Hagen’s fall states that Mr.
Hagen fell because he “was somewhat dazed after getting out of bed,” which is
consistent with his reported fatigue and muscle weakness caused by his COPD.
Additionally, there is no evidence in the administrative record that Mr. Hagen
tripped over an object or slipped on a substance on the ground, which would be
more consistent with an accident rather than a fall caused by illness.
      We conclude that this evidence is sufficient to permit a reasonable mind
to reach the conclusion that Mr. Hagen’s fall was due to or contributed to by
illness. Even accounting for Aetna’s conflict of interest as both insurer and
plan administrator, we hold that Aetna did not abuse its discretion in
determining that Mr. Hagen’s fall was not a covered “accident” under the terms
of the Policy, negating recovery under the Policy. Thus, we need not reach the
other arguments regarding the cause of death. Accordingly, Aetna’s denial of
Mrs. Hagen’s claim was not an abuse of its discretion.
                                IV. Conclusion
      Because we conclude that Aetna did not abuse its discretion in denying
Mrs. Hagen’s claim for benefits, we AFFIRM.
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