     Case: 13-20477      Document: 00512611653         Page: 1    Date Filed: 04/29/2014




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

                                                                                     FILED
                                    No. 13-20477                                 April 29, 2014
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
PATRIZIA LALONDE,

                                                 Plaintiff – Appellant
v.

CHRISTUS HEALTH TEXAS OCCUPATIONAL INJURY ASSISTANCE
PLAN; CHRISTUS HEALTH,

                                                 Defendants – Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:12-cv-1752


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Patrizia Lalonde appeals the district court’s order granting summary
judgment in favor of Christus Health Texas Occupational Injury Assistance
Plan in this Employee Retirement Income Security Act case. Because there is
substantial evidence in the record to support the denial of benefits, we
AFFIRM the judgment of the district court.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 13-20477        Document: 00512611653         Page: 2      Date Filed: 04/29/2014



                                        No. 13-20477
                   I.     Factual and Procedural Background
      Patrizia Lalonde is a registered nurse and was employed by Christus St.
Michael Health System in Texarkana, Texas. Throughout her employment,
Lalonde was covered by the Christus Health Texas Occupational Injury
Assistance Plan (“the Plan”).            The Plan provides a number of benefits,
including Wage Replacement Benefits (“WRB”), which are payable to a Plan
participant who is temporarily totally disabled 1 due to an injury that occurred
in the course and scope of employment. On May 22, 2010, Lalonde injured her
back at work while lifting an overweight patient. The injury was promptly
reported to the Plan, and the Plan arranged for Lalonde to receive medical care
from Mark Gabbie, M.D., an Approved Physician. 2
      Dr. Gabbie first saw Lalonde on May 26, 2010. He noted that Lalonde
had tenderness, swelling, and muscle spasms, but she had no radicular signs
or symptoms. Dr. Gabbie diagnosed her with a lumbosacral strain, sacroiliac
strain, and muscle spasms. He prescribed medication and ordered physical
therapy three times a week for two weeks. He further recommended that she
perform only light duty work, with specific postural limitations, and stated




      1   “Temporarily totally disabled” is defined by the Plan as:
      Medically demonstrable anatomical or physiological abnormality caused by an
      injury, and commencing within six months from the date of injury that—
      (a)      causes the Participant to be unable to perform the normal duties for
               which he or she was employed;
      (b)      causes the Participant to be under the regular care of an Approved
               Physician; and
      (c)      causes the participant to be unable to engage in Transitional Duty or
               any other occupation for wage or profit.
      2The Plan defines “Approved Physician” as “a person duly licensed under Texas law
as a Doctor of Osteopathy or Medical Doctor and either expressly approved by the Plan
Administrator, included on an approved list . . . , or otherwise approved in writing by the
Plan Administrator upon the request of a Participant.”
                                               2
    Case: 13-20477     Document: 00512611653    Page: 3   Date Filed: 04/29/2014



                                 No. 13-20477
that he would re-evaluate Lalonde’s condition after physical therapy. The Plan
authorized her physical therapy.
      On June 16, 2010, Lalonde returned to Dr. Gabbie, and he opined that
the physical therapy had exacerbated her pain. Dr. Gabbie noted radicular
pain and burning in her right leg. He diagnosed her with sciatica, lumbosacral
strain, and radiculopathy; ordered an MRI; and recommended that she remain
on light duty work.
      The MRI, performed on June 23, 2010, revealed that Lalonde had severe
multilevel degenerative disease; that disc protrusions and posterior element
hypertrophy from T12-L1 through L2-L3 caused significant AP canal stenosis;
and that she had mild to moderate canal stenosis at L3-L4.
      On July 21, 2010, Lalonde saw Dr. Gabbie for a third time and
complained of continued pain and mild incontinence. Dr. Gabbie recommended
to the Plan that Lalonde be evaluated by Marc Smith, M.D., a neurosurgeon,
and that she receive steroid injections in her back. Dr. Gabbie diagnosed
Lalonde with “lumbar spine stenosis” and recommended that she continue on
light duty.    Dr. Gabbie’s records from this visit are silent as to whether
Lalonde’s pain was caused by her May work injury.
      On July 28, after receiving Dr. Gabbie’s recommendation, the Plan sent
Lalonde’s file to Ken Ford, M.D., an Approved Physician, for an evaluation of
Lalonde’s pre-existing condition. Dr. Ford believed that there was no objective,
verifiable evidence of an injury resulting from the May incident, nor of any
aggravation of a pre-existing condition. He stated that the MRI showed only
“incidental, pre-existing multilevel degenerative changes,” with no “acute
changes” as a direct result of the work incident. He concluded that, based on
the documentation, Lalonde “at most, may have experienced some soft tissue
muscle strain” requiring one or two clinic visits and some over-the-counter
medications.
                                       3
    Case: 13-20477     Document: 00512611653     Page: 4   Date Filed: 04/29/2014



                                  No. 13-20477
      During this period, Lalonde continued to request medical treatment
under the Plan.      She contacted her designated Plan adjuster to obtain
authorization for a visit to Dr. Smith, but she was told that Dr. Smith was not
an Approved Physician. According to Lalonde’s affidavit, the adjuster directed
her not to act until she received instructions from the Plan. She claims to have
placed numerous calls to the adjuster over a five-day period in early August
2010, but her calls went unanswered. During this time, Lalonde also requested
authorization from the Plan to return to Dr. Gabbie for further treatment, but
the Plan denied permission.
      On August 9, 2010, Lalonde was sent home from work by her supervisor
because she was in “no condition” to work.         Since she had not received
authorization from the Plan for further medical care, she claims that she had
no choice but to seek outside medical care. On August 12, 2010, she was
treated by Ronald Rush, M.D., a non-Approved Physician. Lalonde complained
of pain in her lower back and minimal relief from the medications prescribed
by Dr. Gabbie. Dr. Rush examined Lalonde and diagnosed her with
hypertension, sinusitis, allergic rhinitis, peripheral neuropathy, and back
pain. He reviewed her MRI and noted that she had moderate canal stenosis,
secondary to disc protrusion. Dr. Rush referred Lalonde to a neurosurgeon for
a consultation on the treatment of her back pain and spinal stenosis. Although
Dr. Rush’s examination notes do not discuss Lalonde’s ability to work, Dr. Rush
signed a slip stating that Lalonde would “be able to return to work/school on 8-
26-2010 . . . [with] No Restrictions.”
      The same day that Lalonde saw Dr. Rush, the Plan denied Dr. Gabbie’s
neurosurgical referral as well as his request that Lalonde receive steroid
injections, stating that there was no objective evidence of radiculopathy. The
denial was based upon Dr. Ford’s peer review of Lalonde’s medical records.


                                         4
    Case: 13-20477     Document: 00512611653      Page: 5   Date Filed: 04/29/2014



                                   No. 13-20477
        Lalonde filed a claim for WRB as of August 12, 2010, alleging temporary
total disability. On August 20, 2010, Lalonde wrote to the Plan protesting the
denial of Dr. Gabbie’s referral. She claimed that she was in pain, Dr. Rush had
removed her from work, and she was incapable of performing light duty work.
She further stated that, after receiving no response from the designated Plan
adjuster, she had no choice but to seek treatment outside the Plan. She
attached records from Dr. Gabbie in support of her claim.
        On August 25, 2010, the Plan requested that Lalonde undergo an
Independent Medical Exam (“IME”) by an Approved Physician. It also asked
Lalonde to furnish copies of her medical records from Dr. Rush within ten days
in order to assist with the IME.
        On August 26, 2010, Lalonde returned to Dr. Rush for a follow-up visit.
Dr. Rush signed a slip similar to the one signed on August 12, confirming that
he had seen Lalonde, and she would “be able to return to work/school . . . after
Eval. [with] No Restrictions,” stating “Excuse pt. til release by Dr.” The slip
contains no additional information. Lalonde reported to Dr. Rush that she still
suffered from back pain, but Dr. Rush’s examination notes contain no
additional details about her back’s condition. Several weeks later, Dr. Rush
referred Lalonde to a neurosurgeon, Zachary Mason, M.D. Dr. Rush also
ordered an electrodiagnostic examination, which was performed on October 8,
2010.
        Throughout this period, Lalonde’s counsel corresponded with the Plan,
questioning the need for an IME and updating the Plan on Dr. Rush’s
treatment of Lalonde. On October 12, 2010, the Plan informed Lalonde’s
counsel that it would not pay WRB based on Rush’s work releases, because
there was “no additional narrative or diagnostic medical evidence” to support
the opinion. The Plan informed Lalonde that it required an assessment by an
Approved Physician to award WRB and that Lalonde’s WRB claim “remain[ed]
                                        5
    Case: 13-20477     Document: 00512611653   Page: 6   Date Filed: 04/29/2014



                                No. 13-20477
suspended pending receipt of Dr. Rush’s medical records and completion of the
[IME].”
     On November 16, 2010, Lalonde saw Dr. Mason. Dr. Mason noted that
Lalonde’s MRI from June 2010 showed multiple disc herniations, and she
reported numbness in her right leg and foot, difficulty controlling urination,
and pain reported as seven on a scale of one to ten. He observed that Lalonde
had difficulty standing erect and walked in flexed position.       Dr. Mason
concluded that Lalonde would likely require surgical intervention and ordered
a follow-up MRI. He did not address Lalonde’s ability to work. The second
MRI ultimately showed herniated discs at T12-L1, L1-L2, and L2-L3 resulting
in moderate canal stenosis; mild chronic compression at T11; and minimal
grade-one spondylolisthesis at L4-L5 due to facet degeneration.
      On February 8, 2011, Lalonde saw Richard L. Weiner, M.D., an
Approved Physician, for an IME. Dr. Weiner reviewed both MRIs and Dr.
Mason’s opinion and recommendation for back surgery.         Dr. Weiner also
conducted a neurological examination on Lalonde. He opined that Lalonde had
multilevel degenerative lumbar disc disease, a large left paracentral T12-L1
disk herniation, a broad-based disc protrusion at L1-L2, and a central disc
protrusion at L2-L3.     He believed that Lalonde did “not appear to have
neurologic damage,” but she should undergo an examination for “possible
neurogenic bladder” given her incontinence. He also noted that she exhibited
symptoms related to a chronic degenerative spinal condition and that the
effects of lifting a heavy patient may have exacerbated her condition and
caused one or more of the disc herniations. However, he did not think that
Lalonde had reached “maximum rehabilitative capacity” and additional testing
was needed, such as a CT myelogram scan, in order to evaluate the instability
in Lalonde’s lumbar spine and the relation between the instability and the
herniated discs, spinal cord, and nerve roots. Dr. Weiner’s report did not
                                      6
    Case: 13-20477    Document: 00512611653      Page: 7   Date Filed: 04/29/2014



                                  No. 13-20477
address or render any opinion regarding Lalonde’s ability to work, despite the
Plan having sent Lalonde to him for purposes of determining eligibility for
benefits.
      Following Lalonde’s visit to Dr. Weiner, the Plan sent Lalonde’s medical
records to William E. Blair, Jr., M.D., for review. Dr. Blair issued a report on
March 4, 2011, opining that there was no objective evidence to support new
physical damage from the May 22 incident and no evidence of neurological
deficiencies.   He believed that further treatment or a “workup” was not
medically necessary as a result of the May 22 incident.
      On March 22, 2011, more than six weeks after the appointment with Dr.
Weiner, the Plan authorized Dr. Weiner’s request that Lalonde receive a CT
myelogram of her lumbar spine. The Plan scheduled an examination and
informed Lalonde, but Lalonde refused to attend on the grounds that it was a
risky procedure and that no doctor had discussed it with her. Lalonde’s counsel
contacted the Plan and requested the name of the doctor who had ordered the
CT myelogram.      A month later, Lalonde spoke with Dr. Weiner’s nurse
practitioner about the test but still ultimately refused to undergo the CT
myelogram.
      On May 2, 2011, the Plan denied Lalonde’s claim for WRB. The letter
explained the Plan’s basis for its decision to deny benefits as follows:
      [T]here is insufficient medical evidence from an Approved
      Physician to support your client’s [WRB] claim. The Plan will only
      pay [WRB] due to a disability that is solely and directly related to
      the work injury. With your client’s documented degenerative and
      arthritic conditions that overlay the possible work related
      component, there is lack of medical documentation from an
      Approved Provider supporting the requested period of disability.
      On September 26, 2011, Lalonde appealed the decision of the Plan. The
Appeals Committee informed Lalonde that it would require an additional IME
before deciding her appeal. On October 24, Lalonde refused to submit to the
                                        7
    Case: 13-20477    Document: 00512611653        Page: 8   Date Filed: 04/29/2014



                                    No. 13-20477
additional IME on the ground that an IME conducted in November 2011, a
year and a half after her injury, would not be beneficial in determining whether
she was eligible for benefits from August 12, 2010, to April 25, 2011. She
believed that the request that she undergo an additional IME was harassment.
Additionally, she stated that she could not afford to travel once more from
Texarkana to Dallas. However, she agreed to attend an IME in Texarkana or
travel to Dallas if the Plan paid her travel expenses, and if the Plan provided
a sufficient reason for the exam.
      On November 4, 2011, the Plan stated that the IME had been canceled
based on Lalonde’s refusal and that, because the WRB claim involved an issue
of medical judgment, the Plan was required to consult a health care
professional who was not consulted as part of the initial claim. The Plan thus
submitted Lalonde’s claim to Mitchell Brooks, M.D., for a peer review. Dr.
Brooks, an orthopedic surgeon, completed his review on November 23, 2011.
Based on the diagnostic testing, the medical records from Drs. Gabbie, Ford,
and Weiner, as well as those from the non-Approved Physicians, Drs. Rush and
Mason, Dr. Brooks concluded that the extent of Lalonde’s at-work injury “was,
at most, a soft tissue sprain/strain.” He also opined that, giving Lalonde the
“broadest benefit of the doubt,” Lalonde required no more than ten sessions of
physical   therapy,   over-the-counter       medications,    and   two    follow-up
appointments to treat her injury. Lalonde would have achieved maximum
rehabilitative capacity at six to eight weeks after the injury, “with or without
treatment.”   According to Dr. Brooks, the injury would have required a
maximum of one or two days off work, with some form of modified duty for six
to eight weeks. However, other than these restrictions, Dr. Brooks stated that
there was “no evidence that this patient was disabled due to her injury from
any gainful employment subsequent to 5/22/10.”


                                         8
    Case: 13-20477    Document: 00512611653     Page: 9   Date Filed: 04/29/2014



                                 No. 13-20477
      Dr. Brooks’s report also addressed the findings in the MRIs. He believed
that the “documented objective clinical findings” did not demonstrate “the
presence of any injury to the structure of the lumbar spine and/or the discs and
any aggravation, enhancement or acceleration of this patient’s previously
existing condition.” He clarified that the initial MRI of Lalonde’s lumbar spine
did not indicate the presence of an acute injury in anatomical structures and
that, if such injury had existed, “one would expect to have found swelling in
the musculature and in the soft tissue surrounding the lumbar spine.”
      On December 16, 2011, the Appeals Committee issued a final denial of
Lalonde’s claim. The Appeals Committee decided that WRB were not payable
because no Approved Physician had ever decided that Lalonde was temporarily
totally disabled.    It also mentioned that Lalonde had refused the CT
myelogram requested by Dr. Weiner. The Appeals Committee relied on Dr.
Brooks’s opinion that Lalonde’s at-work injury was, at most, a soft tissue strain
or sprain and that such injury would require no more than ten physical therapy
sessions and one or two days off of work.
      On June 11, 2012, Lalonde filed this suit under the Employee Retirement
Income Security Act (“ERISA”), challenging the denial of her claim for WRB
for the period from August 12, 2010, through April 25, 2011. The parties filed
cross-motions for summary judgment, and the district court entered summary
judgment in favor of the Plan.       The district court held that there was
substantial evidence in the record to support the Plan’s determination.
Lalonde timely appealed.
                         II.    Standard of Review
      We review de novo the district court’s conclusion that an ERISA plan
administrator did not abuse its discretion in denying disability benefits.
Crowell v. Shell Oil Co., 541 F.3d 295, 312 (5th Cir. 2008).         Under this
approach, we review the plan administrator’s decision from the same
                                       9
   Case: 13-20477     Document: 00512611653      Page: 10   Date Filed: 04/29/2014



                                  No. 13-20477
perspective and with the same standard of review as the district court.
Anderson v. Cytec Indus., 619 F.3d 505, 512 (5th Cir. 2010). When a benefits
plan’s terms grant the plan administrator discretionary authority to determine
eligibility for benefits or construe the terms of the plan, which it does here, we
review the determination to deny benefits for abuse of discretion. Id. We will
affirm a plan administrator’s determination to deny benefits if it is “supported
by substantial evidence and is not arbitrary or capricious[.]” Ellis v. Liberty
Life Assurance 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)). “The fact that the evidence is disputable will not
invalidate the decision; the evidence need only assure that the administrator’s
decision falls somewhere on the continuum of reasonableness—even if on the
low end.” Porter v. Lowe’s Cos., Inc.’s Business Travel Accident Ins. Plan, 731
F.3d 360, 363–64 (5th Cir. 2013) (internal quotation marks and footnote
omitted).
                           III.   Denial of Benefits
      Lalonde claims that the Plan abused its discretion in denying her WRB
based on her at-work injury. Specifically, she asserts that the Plan “ignored
its obligations” by refusing to send Lalonde to Approved Physicians. Thus,
Lalonde concludes that the Plan’s decision is not supported by substantial
evidence because it “prevented any evidence from coming into existence by
refusing to send Lalonde to a Plan Approved Physician.” In support of her
claim that the Plan prevented her from generating a complete record, Lalonde
points to the Plan’s denial of Dr. Gabbie’s neurosurgeon referral and
recommendation for steroid injections. She also claims that she attempted to
return to Dr. Gabbie in August 2010, but the Plan ignored her request.
                                       10
   Case: 13-20477     Document: 00512611653     Page: 11   Date Filed: 04/29/2014



                                 No. 13-20477
Lalonde concedes that no Approved Physicians concluded that she was
temporarily totally disabled, but she contends that the lack of evidence on this
point is the direct result of the Plan’s behavior. Additionally, Lalonde argues
that the Plan relied on reports from doctors who had not physically examined
her, rendering its decision arbitrary and capricious.
      Despite Lalonde’s claims that the Plan denied her access to doctors,
inhibiting the development of a complete and accurate record, she offers no
legal support for the proposition that the Plan has an obligation to send her to
multiple doctors for this purpose. Additionally, the record does not support her
claim that she was prevented from seeing Approved Physicians. First, Lalonde
received immediate medical care from Dr. Gabbie following her injury, and she
returned for two additional follow-up visits and underwent an MRI. For more
than a year, the Plan continued to send her to additional physicians and for
diagnostic testing. Although the Plan’s responses to her requests were less
than prompt, the Plan did not prevent her from developing the medical record
with evidence of her condition. There are multiple evaluations from physicians
in the record as well diagnostic reports.
      Second, the Plan provided specific reasons for its refusal to send Lalonde
to the neurosurgeon suggested by Dr. Gabbie and its denial of coverage for the
cortisone injections. In a letter dated August 12, 2010, the Plan explained that,
based on Dr. Ford’s review of Lalonde’s medical records, neither the
neurosurgeon consultative examination nor the injections were medically
necessary. The Plan’s decision was not a blanket denial with no support; it
was based on the opinion of a medical professional.
      Third, Lalonde refused two opportunities to further develop the medical
record. She refused to undergo the CT myelogram, which would have assisted
the Plan in determining whether her herniated discs were related to her
degenerative condition or whether they were the result of her at-work injury.
                                       11
    Case: 13-20477        Document: 00512611653          Page: 12      Date Filed: 04/29/2014



                                        No. 13-20477
She also refused to attend the IME scheduled by the Appeals Committee,
which is what prompted the Plan to send her file to Dr. Brooks for a peer
review. Lalonde cannot claim that the Plan was thwarting her attempts to
develop the record, but then refuse to participate in the record’s development.
        Having concluded that the Plan did not prevent Lalonde from attaining
medical evaluations and developing the record as to the extent of her medical
impairments, we turn to Lalonde’s main claim—that the Plan’s decision was
not supported by substantial evidence. We agree with the district court that
there is sufficient evidence in the record to support the Plan’s determination
that Lalonde was not temporarily totally disabled and, therefore, ineligible for
benefits. Dr. Brooks reviewed the medical record, including the notes from
physicians who treated Lalonde, their evaluations, and reports from diagnostic
tests, and Dr. Brooks concluded that Lalonde had at most a soft tissue strain. 3
Dr. Brooks’s opinion is also consistent with other evidence in the record,
including the evaluations by Drs. Weiner, Ford, and Blair, and the two MRIs,
which indicated that Lalonde’s back problems were degenerative in nature.
While       only   Dr.   Weiner     physically     evaluated      Lalonde,      ERISA      plan
administrators may rely on a wide variety of medical evidence in making a
decision, including evaluations from physicians who did not evaluate the
claimant in person. Cf. Vercher v. Alexander & Alexander Inc., 379 F.3d 222,
232 (5th Cir. 2004); see also Black & Decker Disability Plan v. Nord, 538 U.S.
822, 831 (2003) (explaining that nothing in ERISA “suggests that plan
administrators must accord special deference to the opinions of treating
physicians.”). Collectively, this constitutes substantial evidence.


        3 Lalonde argues for the first time on appeal that Dr. Brooks’s evaluation should not
serve as substantial evidence because he never physically examined her and his opinion
conflicts with the objective medical evidence. However, we do not consider arguments raised
for the first time on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999).
                                              12
Case: 13-20477   Document: 00512611653     Page: 13   Date Filed: 04/29/2014



                            No. 13-20477
                         IV.   Conclusion
  For the foregoing reasons, we AFFIRM the judgment of the district court.




                                 13
