                                                  Filed:   May 23, 2000

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                             No. 99-1323
                            (CA-98-17-6)



Deborah W. Palmer, et al,

                                              Plaintiffs - Appellants,

          versus


Prudential Insurance, etc.,

                                                 Defendant - Appellee.



                              O R D E R



     The court amends its opinion filed May 12, 2000, as follows:

     On the cover sheet, section 5, line 3 -- Judge Godbold is with

the Court of Appeals “for the Eleventh Circuit ....”

     On page 5, first full paragraph, line 11 -- the wording is

corrected to read “formality of review at this stage ....”

                                          For the Court - By Direction



                                          /s/ Patricia S. Connor
                                                   Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DEBORAH W. PALMER; DAVID G.
PALMER,
Plaintiffs-Appellants,

v.                                                                No. 99-1323

PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of West Virginia, at Parkersburg.
Joseph Robert Goodwin, District Judge.
(CA-98-17-6)

Argued: April 3, 2000

Decided: May 12, 2000

Before LUTTIG and MOTZ, Circuit Judges,
and John C. GODBOLD, Senior Circuit Judge of the
United States Court of Appeals for the Eleventh Circuit,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Richard Allen Hayhurst, Parkersburg, West Virginia, for
Appellants. James Rudolph Martin, JACKSON & KELLY, P.L.L.C.,
Charleston, West Virginia, for Appellee. ON BRIEF: Karen M.R.
Weber, JACKSON & KELLY, P.L.L.C., Charleston, West Virginia,
for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Deborah and David Palmer appeal from the district court's denial
of its motion under Federal Rule of Civil Procedure 59 for reconsider-
ation of that court's grant of summary judgment to The Prudential
Insurance Company of America ("Prudential") on the Palmers' claim
that Prudential violated its fiduciary duties to Ms. Palmer under The
Employee Retirement Income Security Act, 29 U.S.C. §§ 1001 et
seq., ("ERISA") in denying her claim for long-term total disability
benefits. Finding no error on the part of the district court, we affirm.

I.

Plaintiff-appellant Deborah Palmer was employed by defendant-
appellee Prudential from 1990 through 1995. During her employment,
Palmer enrolled in a disability insurance plan ("Plan") that was
administered and insured by Prudential and subject to the terms of
ERISA. Palmer became seriously ill, and claimed and received dis-
ability benefits for a period of 24 months. Pursuant to the terms of the
Plan, after 24 months, a Plan participant is eligible to collect long-
term total disability benefits, which are available only if the partici-
pant is "totally disabled." In September 1997, after Palmer had been
collecting benefits for almost 24 months, Prudential retained an inde-
pendent physician, Dr. Edward Doyle, to evaluate Palmer's condition
and to determine whether she was totally disabled. Although Palmer's
own doctors had separately examined her and concluded that she was
totally disabled, Dr. Doyle determined that she was not. On Novem-
ber 20, 1997, relying largely on Dr. Doyle's conclusions, Prudential
denied Palmer's application for long-term total disability benefits.

                    2
Eight days later, Palmer requested administrative review of Pru-
dential's decision under a Plan provision providing that a claimant
who believes that he was erroneously denied benefits may seek
review of that decision by submitting a written request for such. See
J.A. 311. Although the relevant Plan provision provides that Pruden-
tial will respond to review requests within 60 days of receipt thereof,
see id., Palmer and her husband filed suit before 60 days had elapsed,
claiming that Prudential, as administrator of the Plan, had violated its
fiduciary duties to her in denying her long-term disability benefits and
in failing to review its initial denial decision. The district court
granted summary judgment in Prudential's favor, and the Palmers
moved for reconsideration of that determination under Federal Rule
of Civil Procedure 59, arguing that the grant of summary judgment
was unsupported by the record. The district court denied that motion,
and the Palmers appealed.

II.

In arguing that Prudential violated its fiduciary duties to Ms.
Palmer, the appellants appear to focus their case on two claims in par-
ticular: that Prudential erroneously denied long-term total disability
benefits to Palmer, and that Prudential failed in its duty to provide
administrative review of its initial denial decision. With respect to
both claims, we conclude that the district court did not err in entering
summary judgment in Prudential's favor.

As to the decision to deny benefits, the Palmers claim that Pruden-
tial erred in relying on Dr. Doyle's assessment of Ms. Palmer's condi-
tion rather than on that of her own doctors. Applying the modified
abuse of discretion standard applicable to the benefits decisions of
plan administrators who act also as plan insurers, the district court
concluded that Dr. Doyle's assessment provided the substantial evi-
dence required to sustain the Plan administrator's benefits determina-
tion. We agree. As the district court noted, the question whether
Palmer was totally disabled amounted to nothing more than "a differ-
ence of opinion between two physicians." J.A. 697-98. There is noth-
ing in the record to suggest that Dr. Doyle's assessment was somehow
unreliable, such that reliance thereon by Prudential would have been
impermissible. In fact, Palmer's own treating physician, Dr. Vincent
Mazzella, testified that, although he did not agree with Dr. Doyle's

                    3
conclusions, those conclusions were not "unreasonable or outrageous"
and that he "could see where [Dr. Doyle] came to those conclusions."
J.A. 331.1 Under these circumstances, we conclude that substantial
evidence existed to support Prudential's decision to deny benefits to
Palmer, and that the district court thus correctly entered summary
judgment in favor of Prudential on the claim that benefits were erro-
neously denied.

As to the failure to provide administrative review, ERISA provides
that all plans subject to its terms must provide a claimant who is
denied benefits with "a reasonable opportunity . . . for a full and fair
review by the appropriate named fiduciary of the decision denying the
claim," 29 U.S.C. § 1133(2), and the Plan's written review request
procedure constitutes a mechanism for the provision of that reason-
able opportunity for review.2 Palmer requested review here, but filed
suit well before the expiration of the 60-day period in which Pruden-
tial was to review its decision to deny her benefits, and Prudential
never actually conducted the review.3 The district court held that, by
pursuing judicial remedies prior to the expiration of the 60-day review
_________________________________________________________________

1 Subsequent to the district court's grant of summary judgment to Pru-
dential, Dr. Mazzella submitted to the court an affidavit emphasizing that
he did not believe that Dr. Doyle's conclusions were reasonable. How-
ever, even in the absence of Dr. Mazzella's testimony as to the reason-
ableness of Dr. Doyle's analysis, the record provides no basis for
discrediting Dr. Doyle's assessment.

2 The Plan summary provided to participants states that:

            If you believe your rights or benefits under the Disability Bene-
            fits Plans were denied unfairly, you may request within 60 days,
            in writing, a review of the decision. You . . . may submit a writ-
            ten argument against the denial to the Employee Benefits Plans
            Division . . . . You or your representative can arrange to examine
            any plan documents that affect your claim. You will be informed
            in writing within 60 days after receipt of your request for review.

J.A. 311.

3 Prudential has not argued at any stage in this litigation that the Palm-
ers' claim should be dismissed for failure to exhaust administrative reme-
dies, and we thus do not address ourselves to that question, or to the
question whether, assuming that exhaustion was required, the futility
exception to that requirement would apply on these facts.

                      4
period, the Palmers waived their right to administrative review of the
benefits denial decision. We agree that Palmer has effectively waived
her right to review.

Significantly, section 1133 provides not that plans shall conduct
review in all cases; rather, it states only that plans must "afford a rea-
sonable opportunity" for such review. Prudential provided that statu-
torily required opportunity and, by all indications, would have
reviewed its decision to deny benefits had the Palmers fully availed
themselves of that opportunity by refraining from pursuing judicial
remedies within the 60-day review period. Given that two years of lit-
igation have since ensued, during which Prudential has presumably
developed its position concerning the propriety of the decision to
deny benefits, we cannot say that requiring Prudential to go through
the formality of review at this stage would in any way enhance the
reasonableness of the opportunity for review provided to Palmer. We
thus conclude that the district court properly entered summary judg-
ment in Prudential's favor on the claim that the Palmers are entitled
to administrative review of the benefits denial decision.

The Palmers' challenge several other aspects of Prudential's
administration of the Plan, ranging from the adequacy of the written
Plan documentation provided to participants, to Prudential's decision
to assign a junior employee to perform some of the tasks involved in
processing Ms. Palmer's claim. Having had the benefit of briefing and
oral argument, and having reviewed the record before us, we find
these and the remainder of the Palmers' claims to be without merit.

CONCLUSION

For the reasons stated herein, the judgment of the district court is
affirmed.

AFFIRMED

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