     Case: 11-51202   Document: 00511981922   Page: 1   Date Filed: 09/11/2012




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

                                                                  FILED
                                                             September 11, 2012

                                 No. 11-51202                    Lyle W. Cayce
                                                                      Clerk

GENE ATKINS,

                               Plaintiff - Appellant

v.

BERT BELL/PETE ROZELLE NFL PLAYER RETIREMENT PLAN; THE
NFL SUPPLEMENTAL DISABILITY PLAN; MANAGEMENT TRUSTEES
OF THE NFL PLAYER RETIREMENT PLAN,

                               Defendants - Appellees



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



Before REAVLEY, SMITH, and CLEMENT Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
        Gene Atkins, a former player for the New Orleans Saints and Miami
Dolphins National Football League (“NFL”) teams, filed suit seeking more
generous disability benefits under the Bert Bell/Pete Rozelle NFL Player
Retirement Plan (the “Plan”). The district court granted summary judgment in
favor of the Plan, affirming its benefits determinations that Atkins is only
eligible for “Inactive” player disability benefits instead of the more generous
“Football Degenerative” disability benefits he seeks. Atkins challenges the
   Case: 11-51202   Document: 00511981922      Page: 2   Date Filed: 09/11/2012



                                  No. 11-51202

standard of review employed by the district court and the substantive merits of
the benefits determinations. We AFFIRM.
                        FACTS AND PROCEEDINGS
      1. The Bert Bell/Pete Rozelle NFL Player Retirement Plan
      The Plan is an employee, multi-employer welfare benefit plan governed by
the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C.
§§ 1002(3)(2)(A), 1002(37)(A), and the Labor Management Relations Act
(“LMRA”), 29 U.S.C. §§ 141 et seq., also known as the “Taft-Hartley Act.” As
required by statute, the Plan is jointly administered by employee (NFL players)
and employer (NFL club owners) representatives. 29 U.S.C. § 186(c)(5)(B). Three
player representatives are appointed by the NFL Players Association (“NFLPA”)
and three club ownership representatives are appointed by the NFL
Management Committee (“NFLMC”) (collectively the “Retirement Board” or the
“Board”). The Retirement Board, which meets quarterly, is the “named fiduciary”
of the Plan and is responsible for administering the Plan. The Plan grants the
Board “full and absolute discretion, authority and power” to interpret the Plan
and decide claims for benefits. The Plan also provides that, in exercising its
discretionary powers, the Retirement Board “will have the broadest discretion
permissible under ERISA and any other applicable laws.”
      The Plan provides monthly total and permanent (“T&P”) disability benefits
to eligible NFL players. Retired players such as Atkins may be eligible for
benefits categorized as either “Football Degenerative” or “Inactive.” A player
may qualify for “Football Degenerative” T&P benefits if his disability “arises out
of League football activities.” A player may qualify for “Inactive” T&P benefits
if his disability “arises from other than League football activities.” Football
Degenerative benefits are significantly greater than Inactive benefits. After an
initial benefits determination, a player’s benefit category may be altered only



                                        2
   Case: 11-51202      Document: 00511981922    Page: 3    Date Filed: 09/11/2012



                                  No. 11-51202

upon a showing of “changed circumstances” based on “clear and convincing”
evidence.
      A player’s claim for T&P disability benefits is first reviewed by the
Disability Initial Claims Committee (“DICC”). The DICC is composed of two
members, one appointed by the NFLPA and one by the NFLMC. If the two
members of the DICC are deadlocked, the claim is deemed denied. Decisions of
the DICC are appealable to the Retirement Board. If the members of the
Retirement Board are deadlocked, they may vote to submit the matter to a
Medical Advisory Physician (“MAP”) for a determination regarding medical
issues. In the event of a deadlock concerning eligibility or entitlement to
benefits, the Retirement Board may vote to refer the dispute for final and
binding arbitration.
      2. Atkins’ Initial Claim for Disability Benefits
      Gene Atkins played professional football from 1987 until 1996, spending
the majority of his time playing with the New Orleans Saints and the last
several years with the Miami Dolphins. During his career he was well-
recognized for his aggressive, hard-hitting play as a defensive back and he
sustained a number of injuries resulting from on-field collisions.
      In December 2004, Atkins submitted an application for disability benefits
to the Plan administrators, claiming T&P disability as a result of three
conditions stemming from his football career. The conditions Atkins listed were:
(1) right shoulder ailments, including movement limitations and chronic pain;
(2) chronic constant pain in his neck that radiated through his arms and hands,
affecting his ability to drive, sense of touch, and ability to hold objects; and (3)
depression and mood issues that limited his ability to function, due in part to his
constant physical pain and inability to work. Atkins reported that he worked at
a Target store for five months but had to stop because of pain, headaches, and
difficulties in dealing with people.

                                         3
   Case: 11-51202   Document: 00511981922     Page: 4   Date Filed: 09/11/2012



                                 No. 11-51202

      Following receipt of his disability application, Plan administrators sent
Atkins to two neutral physicians for evaluation, Keith Kesler (“Kesler”), a
psychiatrist, and Tarek Souryal (“Souryal”), an orthopedist. Kesler reported that
Atkins suffered from poor cognitive function, which he stated “cannot be
determined” as to whether it resulted from football. Kesler also reported that
Atkins had chronic pain and headaches, as well as possible neurologic defects,
all of which were the result of football. Kesler found Atkins totally disabled as
a result of his impairments. In contrast, Souryal reported that Atkins suffered
from neck and shoulder impairments which were the result of football, but the
impairments did not render him totally disabled.
      Atkins’ application and Kesler’s and Souryal’s reports were reviewed by
the DICC on June 7, 2005. The two members deadlocked and the claim was
deemed denied. Atkins appealed the decision to the Retirement Board as
provided for under the Plan. The Retirement Board scheduled Atkins for two
additional examinations by neutral physicians, orthopedist J. Bryan Williamson
(“Williamson”) and neurologist Raymond Martin (“Martin”).
      Williamson concluded that Atkins suffered from long-term neck and right
shoulder impairments due to football-related injuries. However, Williamson also
concluded Atkins was not totally disabled. Martin found that Atkins was totally
disabled due to a combination of problems. He concluded Atkins’ physical
impairments were a result of football, but his memory problems were of an
unknown source. He suggested that formal neuropsychological testing would
have to be done to determine the etiology of Atkins’ problems with intellect,
memory, and mental status.
      With the benefit of Williamson’s and Martin’s reports, the Retirement
Board considered Atkins’ claim at its next scheduled quarterly meeting held on
October 20, 2005. The Retirement Board deadlocked and referred the matter to
a MAP. The Plan defines a MAP as a board-certified orthopedic physician or a

                                       4
   Case: 11-51202    Document: 00511981922      Page: 5   Date Filed: 09/11/2012



                                  No. 11-51202

physician in another medical discipline as designated by the NFLPA and
NFLMC. A MAP has the authority to decide only those medical issues submitted
by the Retirement Board. Atkins was referred to Thomas Boll (“Boll”), a Ph.D.
clinical neuropsychologist, for an examination. The referral states that Boll was
to evaluate the impaired body parts identified by Atkins, specifically his “head
ache, numbness, shoulders, neck [and] hands.”
      Boll concluded that Atkins suffered from illiteracy and borderline mental
ability, neither of which resulted from football. He further concluded that Atkins
suffered from depression, which could not be determined to be the result of
football, and pain which was the result of football. Specifically, Boll stated that
“Atkins’ difficulties appear to be primarily in the psychiatric arena and there is
no evidence of a neurological disorder” and further concluded that Atkins’
limitations are primarily the product of his “extremely limited” literacy that
places him “at a substantial disadvantage with regard to a wide variety of
occupational pursuits outside of those specifically related to the athletic field.”
Boll concluded that Atkins was totally disabled and suggested psychological and
psychiatric intervention to increase his ability to function adequately on a day-
to-day basis.
      After receiving Boll’s report, the Retirement Board considered Atkins’
appeal in a meeting conducted on February 9, 2006. The minutes of the meeting
reflect a decision to approve Inactive T&P disability benefits, retroactively
effective to June 1, 2005. In a letter dated February 23, 2006, the Plan director
explained the award of Inactive T&P benefits was for psychiatric impairments
which did not “arise out of League football activities” under the language of the
Plan. Atkins was informed his T&P disability benefits were therefore not
categorized as Football Degenerative.




                                        5
   Case: 11-51202    Document: 00511981922       Page: 6    Date Filed: 09/11/2012



                                   No. 11-51202

      3. Atkins’ Multiple Requests for Reconsideration
      Atkins submitted another appeal to the Retirement Board by way of a
letter dated March 3, 2006. In the letter, Atkins requested reclassification into
the Football Degenerative category, stating that he believed his disability
resulted from football activities. However, Atkins did not submit any additional
evidence or argument in support of his reclassification request. On May 10, 2006,
the Retirement Board tabled its consideration of the appeal to allow additional
time for Atkins to be evaluated by a neutral physician.
      Atkins was examined by neurologist Robert W. Gilbert, Jr. (“Gilbert”) on
June 12, 2006. Gilbert found that Atkins suffered from the impairments of right
shoulder pain with limited motion, cervical spasms with neck and arm pain, and
carpal tunnel syndrome. Gilbert concluded all of the impairments resulted from
football, but also concluded that Atkins was not totally disabled as a result of his
impairments.
      After receiving Gilbert’s report, the Retirement Board reviewed Atkins’
appeal on July 19, 2006. The minutes of the meeting reflect that the Retirement
Board denied the request for reclassification to Football Degenerative T&P
disability benefits. A July 26, 2006, letter from the Plan director stated:
      By report dated June 12, 2006, Dr. Gilbert stated that you are not
      totally and permanently disabled by your head, neck and right arm
      conditions. The Retirement Board noted that Dr. Gilbert’s report is
      consistent with earlier medical reports insofar as it states that your
      physical impairments are not, by themselves, totally and
      permanently disabling. The Retirement Board further found that
      Dr. Gilbert’s report is consistent with its earlier conclusion that you
      a r e p e r m a n e n t l y a nd t o t a ll y d i s a b l e d b y y o u r
      psychiatric/psychological condition, which for the reasons described
      above, qualifies you for the Inactive category. In sum, the
      Retirement Board once again concluded that the Inactive category
      is the correct category for your T&P benefits based on the medical
      evidence in your file.



                                         6
   Case: 11-51202   Document: 00511981922      Page: 7   Date Filed: 09/11/2012



                                  No. 11-51202

      You should regard this letter as a final decision on review within the
      meaning of Section 503 of the Employee Retirement Income
      Security Act. . . .You have the right to bring an action under section
      502(a) of the Employee Retirement Income Security Act.
After receiving the letter, Atkins did not exercise his right to bring an action
under ERISA § 502 to challenge the Retirement Board’s benefits determination.
      Following the Retirement Board’s denial of his request for reclassification,
Atkins sought the advice of noted neurosurgeon Dr. Robert Cantu (“Cantu”), an
expert on brain trauma caused by athletics, including chronic traumatic
encephalopathy (“CTE”) suffered by former NFL players. After examining
Atkins, Cantu opined that Atkins suffered from severe post-concussion syndrome
and was “probably beyond that into early traumatic encephalopathy.” Cantu also
concluded that Atkins was unable to work indefinitely due to a “demented
mental status.”
      Based on Cantu’s findings, Atkins submitted a letter to the Retirement
Board on August 23, 2007, in which he requested reconsideration of the denial
of his reclassification request for Football Degenerative benefits. Cantu’s report
was submitted with the letter. The Board treated the letter as a request for
reclassification of benefits from Inactive to Football Degenerative.
      On October 4, 2007, the DICC considered and denied the request. An
October 5, 2007, letter from the Plan director stated:
      After reviewing the available information, the Committee
      determined that you are totally and permanently disabled due to a
      psychiatric/psychological condition which precludes an award of
      Football Degenerative T&P disability benefits. The Committee also
      reviewed Plan section 5.6 regarding reclassification requests, and
      concluded that you have failed to present clear and convincing
      evidence that you qualify for Football Degenerative T&P benefits
      because of changed circumstances. Specifically, the Committee
      determined that the new evidence presented . . . relate[s] to the
      same condition that was the basis for the original classification.
      Accordingly, the Committee denied your request for reclassification.


                                        7
   Case: 11-51202   Document: 00511981922     Page: 8   Date Filed: 09/11/2012



                                 No. 11-51202

      In December 2007, Atkins received a favorable decision from the Social
Security Administration in response to his application for disability insurance
benefits (“DBI”) and supplemental security income (“SSI”). The administrative
law judge (“ALJ”) presiding over Atkins’ social security claim relied on the
findings of Cantu and Dr. Ronald DeVere (“DeVere”), a neurologist appointed to
assist the ALJ in determining whether Atkins was disabled. DeVere’s findings
indicated that Atkins had “a number of problems,” including “evidence of some
cognitive disorder, which . . . may be partially related to multiple head trauma
he sustained over a nine-year career of professional football.” The ALJ found
Atkins to be disabled under the Social Security Act and awarded him benefits
dating to January 1, 1998.
      After receiving the decision from the ALJ, Atkins requested an appeal of
the DICC’s October 2007 decision by letter dated February 11, 2008. In support
of the appeal, Atkins submitted additional documentation, including the ALJ’s
decision and DeVere’s medical findings. On April 30, 2008, the Retirement Board
tabled its consideration of Atkins’ appeal to allow additional time for Atkins to
be evaluated by a neutral MAP, neurologist James Gordon (“Gordon”).
      Gordon examined Atkins on June 25, 2008. He found that Atkins suffered
from impairments of: (1) cognitive dysfunction; (2) depression; and (3) chronic
and post-concussion headaches. Gordon concluded that the chronic and post-
concussion headaches resulted from football, but that the other two impairments
were only “in part” the result of football. Gordon also concluded that Atkins was
totally disabled as a result of the impairments.
      Gordon explained his diagnostic impressions:
      Mr. Atkins’ overall picture includes elements of psychiatric
      dysfunction, cognitive dysfunction, and headache that most likely
      result from a combination of constitutional and environmental
      factors, none of which, alone, would explain his current condition.
      There is little doubt that recurrent head trauma of a concussive and


                                       8
   Case: 11-51202    Document: 00511981922      Page: 9    Date Filed: 09/11/2012



                                  No. 11-51202

      sub-concussive type contributes to these disorders, though relative
      effect of head trauma is difficult to quantitate. . . . It is impossible
      to distinguish the precise extent to which head injury causes, rather
      than exacerbates, Mr. Atkins’s headaches, cognitive and behavior
      problems, given preexisting neuropsychological limitations and
      psychiatric predispositions. What is clear, however, is that he
      suffers disabling chronic headache, depression and cognitive
      limitations, and that recurrent head trauma resulting from his role
      as an NFL defensive back contributed significantly to his current
      condition, even if that contribution cannot be reliably quantitated.
      In his current condition, he cannot be gainfully employed.
      4. Lawsuits and Arbitration
      Before the Retirement Board could meet in November 2008 to consider
Atkins’ appeal and Gordon’s findings, Atkins filed suit against the Plan in
district court on August 29, 2008, seeking benefits under ERISA. Atkins v. Bert
Bell/Pete Rozelle NFL Player Ret. Plan, No. 1:08-CV-651-SS, Dkt. 1 (W.D. Tex.
Aug 29, 2008) (the “First Lawsuit”). The suit was ultimately dismissed without
prejudice based on a stipulation of the parties in light of the ongoing appeal
being considered by the Retirement Board. (Id., Dkt. 29).
      When the Retirement Board finally met to consider Atkins’ appeal on
November 11, 2008, the Board deadlocked on Atkins’ request for reclassification
and referred the issue for final and binding arbitration pursuant to section 8.3(b)
of the Plan.
      On June 18, 2009, an arbitration hearing was conducted before Richard
Kasher (“Kasher”). A number of exhibits, including the deposition testimony of
Cantu and Gordon, were introduced. In addition, Atkins and his then-wife
Patricia Atkins testified at the hearing. Kasher conducted an additional hearing
on August 17, 2009, at which Boll testified and more evidentiary exhibits were
introduced. The arbitration record ultimately included more than 4,000 pages.
      Kasher issued his decision on April 12, 2010, finding there was insufficient
evidence to conclude Atkins had proven his level of benefits should be


                                         9
  Case: 11-51202    Document: 00511981922        Page: 10    Date Filed: 09/11/2012



                                   No. 11-51202

reclassified under the Plan. In a lengthy opinion, Kasher reviewed the medical
evidence and testimony presented during the hearings. In pertinent part, the
opinion stated:

      In this Arbitrator’s opinion it is also significant to note that Dr.
      Cantu candidly testified that he was not able with “100% percent
      accuracy” to diagnose Mr. Atkins with CTE. More importantly, Dr.
      Cantu testified that Mr. Atkins has “all three aspects of the triad”
      of CTE; and thus Dr. Cantu testified that he has a “high index of
      suspicion” that Claimant Atkins suffers from CTE. Again, Dr. Cantu
      testified candidly that he could not “say with . . . scientific certainty”
      that Mr. Atkins has CTE, and could only do so “when his brain is
      studied.”

      Dr. Cantu’s opinion is qualified by his finding that Mr. Atkins’ CTE
      is based upon a “more probably than not” diagnosis. Such an
      opinion, as well-founded as it is by Dr. Cantu, a highly-qualified and
      well-respected medical practitioner, does not, in this Arbitrator’s
      opinion, meet the “clear and convincing” standard of proof required
      to sustain Mr. Atkins’ claim.

      ...

      The findings of Doctors Cantu, DeVere and Gordon regarding Mr.
      Atkins’ history of head trauma are, as the Owner Trustees have
      correctly pointed out, all premised upon the reports made by Mr.
      Atkins some nine to ten years after those alleged incidents. The
      incidents are not set in time and do not reference which teams the
      Saints were playing, nor is there any evidence that the incidents
      were reported to the Saints or the Dolphins trainers or Club
      physicians.

      Therefore, the resolution of the issues in this case require the
      analysis of the two plausible medical opinions/diagnoses of Gene
      Atkins’ cognitive dysfunction.

      In this Arbitrator’s opinion, neither the opinions of Doctors Cantu,
      Gordon and DeVere on the one hand and Dr. Boll on the other rise
      to the level of clear and convincing evidence. And, as noted above,
      this Arbitrator is bound by that standard of proof.


                                         10
  Case: 11-51202    Document: 00511981922      Page: 11    Date Filed: 09/11/2012



                                  No. 11-51202

      Therefore, Mr. Atkins’s claim falls into the realm of “probability”, as
      both Doctors Cantu and Boll have implicitly acknowledged.

      It is “probable” that Gene Atkins experienced more than one
      concussion event/incident during his ten year career as a
      professional football player; and that one of those probable
      events/incidents, . . . may have resulted in some postconcussive
      symptoms, albeit they were not reported, recorded or treated.

      That being said, this Arbitrator finds insufficient evidence to
      conclude that Gene Atkins has proven that his level of benefits
      should be reclassified under the provisions of the Bert Bell/Pete
      Rozelle NFL Player Retirement Plan.

      Accordingly, this Arbitrator is compelled to deny Mr. Atkins’ claim.
      The NFLPA trustees requested reconsideration of Kasher’s decision. On
November 29, 2010, Kasher denied the request. In so doing, he noted that he had
“fully considered the contradictory medical opinions and the evidence of Mr.
Atkins’ injuries and symptoms” and was not prepared to reopen the record.
Subsequently, and in accordance with section 8.3 of the Plan, the Retirement
Board adopted Kasher’s decision at its February 23, 2011 meeting.
      While the NFLPA trustees’ request for reconsideration was still pending,
Atkins filed the lawsuit that forms the basis for this appeal on July 9, 2010 (the
“Second Lawsuit”). Atkins filed several motions seeking to compel discovery
regarding aspects of the Plan’s claim handling process, potential conflicts of
interests involving members of the Retirement Board, and the Plan’s handling
of other T&P disability benefits claims, as well as challenging the scope of
documents designated as part of the administrative record. The district court
denied the majority of the motions with the exception of allowing discovery
regarding some of the Plan’s handling of prior claims.
      In November 2011, the district court granted summary judgment in favor
of the Plan and denied Atkins’ motion for summary judgment. Atkins v. Bert


                                        11
  Case: 11-51202    Document: 00511981922      Page: 12   Date Filed: 09/11/2012



                                  No. 11-51202

Bell/Pete Rozelle NFL Player Retirement Plan et al., No. 10-CV-515, slip op. at
18 (W.D. Tex. Nov. 10, 2011). While Atkins argued that the district court should
review the benefits determinations under a de novo standard of review, the court
agreed with the Plan, citing Supreme Court precedent, that abuse of discretion
is the proper standard of review when considering an ERISA plan’s fiduciary’s
benefits determinations. Id. at 12–14. The district court then considered the
merits of Atkins’ challenges to the Plan’s benefits determinations and held that
the Retirement Board, under the Plan provisions, had not abused its discretion
by awarding Atkins T&P disability benefits under the Inactive category instead
of the Football Degenerative category. Id. at 15–16. Additionally, the court found
that Atkins failed to establish that Kasher’s arbitration decision was
procedurally unreasonable. Id. at 17.
      On appeal, Atkins challenges the district court’s decision to apply abuse
of discretion instead of de novo review to the Plan’s benefits determinations and
he challenges the merits of the specific benefits determinations made by the
Retirement Board in 2006 and 2011 and by arbitrator Kasher in 2010.
                          STANDARD OF REVIEW
      “Standard summary judgment rules control in ERISA cases.” Cooper v.
Hewlett-Packard Co., 592 F.3d 645, 651 (5th Cir. 2009) (quoting Vercher v.
Alexander & Alexander Inc., 379 F.3d 222, 225 (5th Cir. 2004)). We review the
grant of summary judgment de novo, applying the same standard as the district
court. Pub. Citizen Inc. v. La. Att’y Disciplinary Bd., 632 F.3d 212, 217 (5th Cir.
2011). Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(a).
      We also review de novo the district court’s selection of the appropriate
standard of review to be applied to an ERISA administrator’s eligibility
determination. Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d

                                        12
  Case: 11-51202    Document: 00511981922      Page: 13   Date Filed: 09/11/2012



                                  No. 11-51202

211, 213 (5th Cir. 1999). Unless the terms of the plan give the administrator
“discretionary authority to determine eligibility for benefits or to construe the
terms of the plan[,]” an administrator’s decision to deny benefits is reviewed de
novo. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). However,
if the language of the plan does grant the plan administrator discretionary
authority to construe the terms of the plan or determine eligibility for benefits,
a plan’s eligibility determination must be upheld by a court unless it is found to
be an abuse of discretion. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008)
(citing Firestone Tire & Rubber Co., 489 U.S. at 111, 115). Independent of the
administrator’s ultimate authority to determine benefit eligibility, factual
determinations made by the plan administrator during the course of a benefits
review will be rejected only upon a showing of abuse of discretion. Meditrust Fin.
Servs. Corp.,168 F.3d at 213.
      In the ERISA context, “[a]buse of discretion review is synonymous with
arbitrary and capricious review.” Cooper, 592 F.3d at 652. This standard
requires only that substantial evidence supports the plan fiduciary’s decision.
Ellis v. Liberty Life Assur. Co. of Boston, 394 F.3d 262, 273 (5th Cir. 2004).
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.” Id. (quoting Deters v. Sec’y of Health, Educ. & Welfare,
789 F.2d 1181, 1185 (5th Cir. 1986)). “A decision is arbitrary only if made
without a rational connection between the known facts and the decision or
between the found facts and the evidence.” Holland v. Int’l Paper Co. Ret. Plan,
576 F.3d 240, 246 (5th Cir. 2009) (citing Meditrust Fin. Servs. Corp., 168 F.3d
at 215). Moreover, this court’s “review of the administrator’s decision need not
be particularly complex or technical; it need only assure that the administrator’s
decision fall[s] somewhere on a continuum of reasonableness—even if on the low
end.” Corry v. Liberty Life Assur. Co. of Boston, 499 F.3d 389, 398 (5th Cir. 2007)

                                        13
  Case: 11-51202    Document: 00511981922       Page: 14   Date Filed: 09/11/2012



                                  No. 11-51202

(quoting Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 297 (5th Cir. 1999) (en
banc)).
                                 DISCUSSION
      1. Abuse of discretion review of the Retirement Board’s 2011
benefits determination
      Atkins argues the Retirement Board’s benefits determination in 2011, in
which the Board adopted Kasher’s arbitration decision that Atkins failed to
prove changed circumstances for reclassification to Football Degenerative
benefits by clear and convincing evidence, should be reviewed de novo due to two
procedural irregularities. Atkins asserts that because Kasher did not have
discretionary authority to make a benefits determination under the Plan and
because the Retirement Board’s decision to adopt Kasher’s decision was
untimely under the Plan’s claims procedures, the district court erred by using
abuse of discretion instead of de novo review.
       Atkins made similar arguments to the district court in seeking de novo
review of the Board’s 2011 decision. He challenged, among other things, the
Retirement Board’s referral of his appeal to Kasher and the delay in making a
benefits determination. In a well-reasoned rejection of these arguments, the
district court cited Supreme Court and Fifth Circuit precedent for the
proposition that the deferential abuse of discretion standard of review granted
to ERISA plan decisions should not be altered absent a finding that the plan
administrator “acted in bad faith or would not fairly exercise his discretion to
interpret the terms of the Plan.” Conkright v. Frommert, 130 S. Ct. 1640, 1648
(2010).
      We agree with the district court’s reasoning. This circuit has rejected
arguments to alter the standard of review based on procedural irregularities in
ERISA benefit determinations, such as delays in making a determination. See
S. Farm Bureau Life Ins. Co. v. Moore, 993 F.2d 98, 101 (5th Cir. 1993). Absent

                                        14
  Case: 11-51202    Document: 00511981922       Page: 15   Date Filed: 09/11/2012



                                  No. 11-51202

potential wholesale or flagrant violations that evidence an “utter disregard of the
underlying purpose of the plan,” this court does not heighten the standard of
review from abuse of discretion to de novo. Lafleur v. La. Health Serv. & Indem.
Co., 563 F.3d 148, 159 (5th Cir. 2009) (quoting Abatie v. Alta Health & Life Ins.
Co., 458 F.3d 955, 971 (9th Cir. 2006) (en banc)); see also Wade v.
Hewlett-Packard Dev. Co. LP Short Term Disability Plan, 493 F.3d 533, 538 (5th
Cir. 2007) (“[Appellant] encourages us to heighten our standard of review due to
the procedural irregularities in the handling of his [ERISA] claim . . . .
[Appellant] has cited no direct authority by the Supreme Court or the Fifth
Circuit dictating a change in the standard of review based upon procedural
irregularities alone, and we see no reason to impose one.”).
      Neither the delay in Atkins receiving a final decision nor the use of an
arbitrator rises to the level of a flagrant violation or utter disregard of the Plan
that might require a heightened standard of review. While there was a lengthy
delay of more than two years between the filing of Atkins’ 2008 appeal and the
eventual final decision in 2011, Atkins was informed of the claim’s status and he
participated in the entire process, including testifying and introducing evidence
at the arbitration proceeding. He also voluntarily dismissed the First Lawsuit
in order to allow the arbitration process to proceed. Furthermore, the use of an
arbitrator is fully compliant with the terms of the Plan itself, which expressly
authorizes such a procedure. Section 8.3(b) of the Plan states:
      If the voting members of the Retirement Board are deadlocked with
      respect to a decision as to whether or to what extent any person is
      eligible for or entitled to benefits under this Plan, the Retirement
      Board may by an affirmative vote of three voting members submit
      such dispute for final and binding arbitration in accordance with the
      procedures and practices in use prior to the CBA.
      Accordingly, the district court did not err by applying abuse of discretion
review to the Retirement Board’s 2011 benefits determination.


                                        15
  Case: 11-51202    Document: 00511981922     Page: 16    Date Filed: 09/11/2012


                                  No. 11-51202

      2. Consideration of Kasher’s arbitration decision
      Atkins argues that the district court erred by according deference to
Kasher’s arbitration decision and instead should have reviewed his decision de
novo. Specifically, Atkins claims that because “[t]he plan did not grant Mr.
Kasher discretion to decide benefit claims,” the district court should not have
treated Kasher’s decision with deference by applying an abuse of discretion
standard. Rather, because Kasher was not named as a fiduciary of the Plan,
Atkins argues his decision should have been reviewed de novo.
      Atkins’ argument is misguided because it attempts to construe the
Retirement Board’s appointment of Kasher in an overly narrow and mechanical
way. Atkins focuses on the absence of explicit documentation from the Board’s
meetings that he claims was required to grant Kasher the discretion to decide
benefit claims by being officially designated as a Plan fiduciary. He also takes
issue with the absence of specific meeting minutes reflecting the Board’s
adoption of Kasher’s decision. Without such explicit documentation, Atkins
argues that the Retirement Board improperly delegated the benefits
determination to a non-fiduciary, and he cites several cases for the proposition
that when an ERISA plan allows a benefits decision to be made by a non-
fiduciary, the court reviews the benefits decision de novo.
      Atkins is correct to the extent that this circuit has stated that only
decisions by Plan fiduciaries and administrators that have been given
discretionary authority are accorded deference and reviewed under an abuse of
discretion standard. If no discretionary authority is given, de novo review is
proper. Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 599–600 (5th Cir.
1994) (citing Firestone Tire & Rubber Co., 489 U.S. at 115). However, this circuit
has also held that as long as a company or plan maintains control of the ultimate
decision on benefits, it can rely on experienced agents to assist in the
determination and the decision will still be reviewed under an abuse of

                                       16
   Case: 11-51202       Document: 00511981922     Page: 17   Date Filed: 09/11/2012


                                     No. 11-51202

discretion standard. Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011,
1014 (5th Cir. 1992).
           The problem with Atkins’ argument is that it ignores this subtlety in
conjunction with the plain language of the Plan. The Board did not delegate the
ultimate decision on benefits but instead used its discretion under the plan to
utilize Kasher to break a deadlock, as established under the terms of the Plan
and in compliance with ERISA. Section 8.3(b) of the Plan provides for the exact
process the Retirement Board used in selecting Kasher to arbitrate Atkins’
request for reclassification that resulted in a deadlocked Board. “If the voting
members of the Retirement Board are deadlocked with respect to a decision as
to whether . . . any person is eligible for . . . benefits under this Plan, the
Retirement Board may . . . submit such dispute for final and binding arbitration
. . . .”
           This language complies both with the statutory requirements that an
ERISA plan must designate an impartial process by which to resolve deadlock
scenarios, and with precedent that affords deference to plan administration
decisions, provided the benefit plan grants discretionary authority to determine
eligibility for benefits, including the use of an arbitrator to resolve deadlock
scenarios. With respect to payments of benefits, the Taft-Hartley Act permits an
ERISA plan with both employee and employer representatives to utilize an
impartial third party to break a deadlock. “[U]pon and in the event the employer
and employee groups deadlock on the administration of such fund and there are
no neutral persons empowered to break such deadlock, such agreement provides
that the two groups shall agree on an impartial umpire to decide such dispute
. . . .” 29 U.S.C. § 186(c)(5)(B). Section 8.3(b) of the Plan explicitly provides for
this scenario.
           Similarly, the Supreme Court and this court have reinforced the propriety
of plan administrators’ utilization of a neutral arbitrator to break a deadlock

                                           17
  Case: 11-51202    Document: 00511981922       Page: 18   Date Filed: 09/11/2012


                                   No. 11-51202

without concerns over the mechanical procedures of formally designating the
arbitrator as a fiduciary. “[I]n the adjustment of employee grievances against the
employer . . . a trustee deadlock over eligibility matters, like any other deadlock,
must be submitted to the compulsory resolution procedure established by
§ 302(c)(5) [of the Taft-Hartley Act].” N.L.R.B. v. Amax Coal Co., 453 U.S. 322,
338 (1981) (emphasis added) (wherein § 302(c)(5) of the Taft-Hartley Act refers
to 29 U.S.C. § 186(c)(5)). This court has reached the same conclusion, holding
that when ERISA plan trustees are given the power to consider adjustments to
the level of benefits for a plan’s beneficiaries, and are also empowered to refer
a deadlocked decision to arbitration, plan trustees are acting within their powers
when utilizing a neutral arbitrator. Hauskins v. Stratton, 721 F.2d 535, 537 (5th
Cir. 1983). Therefore, despite Atkins’ arguments to the contrary, the district
court did not err in using abuse of discretion instead of a heightened standard
of review when considering Kasher’s decision.
      3. Substantive review of the Retirement Board’s 2006 and 2011
benefits determinations
      Lastly, Atkins challenges the district court’s decision affirming the
Retirement Board’s 2006 and 2011 benefits determinations on the merits under
the abuse of discretion standard. With respect to the Retirement Board’s 2006
benefits determination that he was only eligible for Inactive T&P disability
benefits, he asserts there was “no evidence to support [the] conclusion” that his
disability “was caused by psychiatric impairments that had no connection to his
football career.” He also argues that the Board’s 2011 benefits determination
was an abuse of discretion “due to the combination of insubstantial evidence and
plan and procedural violations.”
      Given the deferential standard of review, Atkins’ argument that the
Board’s 2006 benefits determination was an abuse of discretion is without merit.
While Atkins claims the Retirement Board abused its discretion by “cherry

                                        18
  Case: 11-51202       Document: 00511981922    Page: 19   Date Filed: 09/11/2012


                                   No. 11-51202

picking” and “extracting” particular findings from the reports of doctors Boll and
Kesler, these allegations view the assembled evidence too narrowly.
      By the time the Retirement Board made its benefits determination in
2006, it had Atkins’ application for benefits and the examination findings of five
doctors: Kesler, Souryal, Williamson, Martin, and Boll. Viewing the doctors’
opinions in the aggregate, there is no conclusive result regarding whether Atkins
was or was not totally disabled, and if he was, whether his disability arose from
football activities.
      Two doctors appear to support Atkins’ view of his disability, at least in
part. Kesler reported that Atkins was totally disabled but his conclusions on the
basis for total disability were mixed, noting that it could not be determined if his
cognitive issues were football related while finding Atkins’ chronic pain and
possible neurologic defects were football related. Similar to Kesler, Martin found
that Atkins was totally disabled from a combination of issues, noting that
Atkins’ physical impairments were the result of football but the source of his
cognitive issues was unknown. Martin also suggested further neuropsychological
testing to better understand the source of Atkins’ impairments.
      On the other hand, the other three doctors’ opinions support the Plan’s
decision, at least in part. Souryal noted that Atkins suffered from neck and
shoulder impairments but concluded that he was not totally disabled. Similarly,
Williamson concluded that Atkins had neck and shoulder issues resulting from
football but that he was not totally disabled. Finally, Boll reported that Atkins
was totally disabled and that he suffered from pain as a result of football but
that his primary difficulties stemmed from psychiatric issues that were not the
result of football.
      Given this set of mixed medical opinions and a standard that requires us
to uphold a plan’s benefits determination absent an abuse of discretion, we must
affirm the district court’s judgment affirming the Retirement Board’s decision

                                        19
  Case: 11-51202     Document: 00511981922     Page: 20    Date Filed: 09/11/2012


                                  No. 11-51202

to award Inactive benefits. While we are sympathetic to Atkins’ plight, the
Board’s decision does not meet the standard for an abuse of discretion given the
mixed collection of evidence that could have been construed to support an award
of either Inactive or Football Degenerative benefits. The Board’s decision was far
from “arbitrary” under the standard set forth in Holland v. International Paper
Co. Retirement Plan, which would mean that the Board made its decision
“without a rational connection between the known facts and the decision or
between the found facts and the evidence.” 576 F.3d at 246. The mixed bag of
medical opinions simply do not provide a clear answer as to whether Atkins’
disabling injuries did or did not arise from football and therefore the Retirement
Board’s discretion cannot be termed an abuse of discretion.
      The Retirement Board’s 2011 decision to adopt the arbitration decision by
Kasher also does not meet the abuse of discretion standard. Like the 2006
benefits determination, Kasher had a mixed set of doctors’ reports before him
when determining if Atkins could demonstrate changed circumstances by clear
and convincing evidence in support of his request to be reclassified to Football
Degenerative benefits. In addition to the inconclusive doctors’ reports from the
2006 determination, Kasher noted that Gilbert concluded that Atkins’
impairments resulted from football but that he was not totally disabled. Gordon
on the other hand concluded that while Atkins was totally disabled, two of the
three bases upon which he found Atkins disabled were only “in part” the result
of football. And finally, while Kasher acknowledged the Social Security
Administration’s finding of disability and Cantu’s findings that Atkins was
“probably   beyond     [post-concussion     syndrome]     into   early   traumatic
encephalopathy,” he also explained that these findings failed to meet the high
bar of clear and convincing evidence for changed circumstances required for a
benefits reclassification. Therefore, while Atkins’ claim fell into the realm of
“probability,” the evidence was insufficient for granting Atkins’ claim.

                                       20
  Case: 11-51202     Document: 00511981922    Page: 21   Date Filed: 09/11/2012


                                  No. 11-51202

        Like the 2006 benefits determination, Kasher’s decision and the
Retirement Board’s adoption thereof in 2011 do not reach the level of arbitrary
and capricious that is required for reversal under an abuse of discretion
standard. While Atkins argues the 2011 decision was predicated on
“insubstantial evidence,” his claim is not supported by the record evidence and
is without merit in light of the deferential standard of review that requires the
court to affirm the Board’s decision given “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Ellis, 394
F.3d at 273.
                                CONCLUSION
        We AFFIRM the district court’s grant of summary judgment in favor of the
Plan.




                                       21
