
                              No. 3--96--0792

_________________________________________________________________

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              THIRD DISTRICT



MARIE A. BOYD,                     )    Appeal from the Circuit

                                   )    Court of the 10th 

          Plaintiff-Appellant,     )    Judicial Circuit,

                                   )    Tazewell

                                   )    County, Illinois

                                   )

          v.                       )    No. 94-L-5

                                   )

PEORIA JOURNAL STAR, INC.,         )

an Illinois Corporation,           )    Honorable

                                   )    Donald C. Courson

          Defendant-Appellee.      )    Judge, Presiding

_________________________________________________________________



JUSTICE MICHELA delivered the Opinion of the court:

________________________________________________________________



     Marie A. Boyd, filed an action in the circuit court of

Tazewell County against her employer, Peoria Journal Star, Inc.,

seeking recovery for medical expenses under a health insurance

plan known as "The Peoria Journal Group Health Benefit Plan" (the

Plan).  The court granted defendant's motion for summary judgment

and denied plaintiff's counter-motion for summary judgment.

     On appeal, plaintiff seeks reversal of the court's decision,

contending that it erred in finding the Plan contained no

provisions for, and specifically excluded coverage for, the

surgical removal of her defective prosthesis.  Plaintiff contends

further that defendant's interpretation of the Plan was

irrational, arbitrary, and capricious, in violation of the

Employee Retirement Income Security Act (ERISA)(29 U.S.C. section

1132(1)(B)(1991)).  In the alternative, plaintiff requests that

this court find that defendant's select review of medical

evidence created a question of fact as to whether defendant's

decision was arbitrary and capricious, and remand the cause for

further proceedings.  For the following reasons, we reverse.

                                   Facts



     In March 1983, plaintiff developed temporomandibular joint

syndrome (TMJS), which necessitated the replacement of her

temporomandibular joint (TMJ) with a TMJ implant (prosthesis).

     In October 1993, plaintiff's oral surgeon, Dr. Russell A.

Williams, notified defendant that due to resorption occurring

around plaintiff's prosthesis, and the potential for brain

exposure, her prosthesis must be removed.  Dr. Williams informed

defendant of his surgical plan, and surgery was scheduled for

November 1993.  Prior to surgery, defendant notified Dr. Williams

and plaintiff of its denial of plaintiff's benefit claim.

     In January 1994, plaintiff filed her complaint against

defendant, which was later amended, and alleged, inter alia, that

in violation of ERISA, defendant's decision to deny her benefits

was based on an irrational, arbitrary, and capricious

interpretation of the Plan.

     In April 1994, plaintiff underwent surgical removal of her

prosthesis at a reported cost of $30,000.  In December 1994,

defendant filed a motion for summary judgment, and in May 1995,

plaintiff filed a counter-motion for summary judgment.  In August

1995, the court granted defendant's motion, denied plaintiff's

counter-motion, and plaintiff appeals.



                                 Analysis



     Plaintiff contends that the court erred in granting

defendant's motion for summary judgment and in denying her

counter-motion for summary judgment.  A motion for summary

judgment should be granted if the pleadings, depositions, and

admissions on file, together with any affidavits, show that there

is no genuine issue of material fact and that the moving party is

entitled to a judgment as a matter of law.  Boylan v. Martindale,

103 Ill. App. 3d 335, 339 (1982).

     In this matter, plaintiff asserts that the court erred in

finding that the Plan contained no provisions for, and

specifically excluded coverage for, the surgical removal of her

defective prosthesis.  Plaintiff maintains that in violation of

ERISA, defendant's interpretation of the Plan was unreasonable,

arbitrary, and capricious.

     When a trustee is given the discretion to construe a plan's

terms and allocate benefits, judicial review is limited to

whether that decision was arbitrary and capricious.  Russo v.

Health, Welfare & Pension Fund, 984 F.2d 762, 765 (7th Cir.

1993).  The arbitrary and capricious standard only requires that

a trustee's decision make sense, and something more than an

alternative interpretation is needed to override such decision. 

Russo, 784 F.2d at 766.  Great deference is given to the

trustees' decision, and it will not be disturbed when it is based

on a reasonable interpretation of a plan's language and evidence

in the case.  Russo, 784 F.2d at 765.

     We note that while it is axiomic that contracts are

considered as a whole, and are not read in isolated pieces

[citations], full effect should be given to more principle and

specific clauses, and general clauses should be subject to

modification or qualification necessitated by specific clauses. 

Herington v. J.S. Alberici Construction Co., 266 Ill. App. 3d

489, 493 (1994).

     In support of her position that the Plan does provide her

with coverage, plaintiff relies in part upon subsections (c) and

(e) of the Plan's deductible medical benefits section, which

grant coverage for such things as in-patient hospital services,

physicians' surgical services, anesthetics, and radiologist or

laboratory services.  However, plaintiff acknowledges that in

addition to its own stated limitations, the Plan's deductible

medical benefits section is subject to the exclusions found in

the Plan's general limitations section.  The general limitations

section states in pertinent part:

          "In addition to any limitations or exclusions stated in

          the respective benefit descriptions, no benefits are

          payable under this Plan for Expenses Incurred:

                                    ***

          (c)  for or in connection with:

                                    ***

               (20) treatment of temporomandibular joint syndrome

               with intraoral prosthetic devices, or any other

               procedure to alter vertical dimension," (Emphasis

               added.)

     In determining whether an "in connection with" exclusion

applies, the court in Kraut v. Wisconsin Laborers Health Fund,

992 F.2d 113, 114 (7th Cir. 1993) stated that the purpose rather

than the location of the surgery is the critical inquiry.

     In the present matter, on November 17, 1993, Dr. Williams

wrote to defendant and requested that it reconsider its decision

denying plaintiff benefits.  In doing so, Dr. Williams thoroughly

explained his position as to why plaintiff's surgery did not fall

within the exclusion "for or in connection with" the treatment of

TMJS with intraoral devices, or any procedure to alter vertical

dimension.  Dr. Williams noted, inter alia, that plaintiff

neither has, nor shows symptoms of, TMJS, and that her prosthesis

must be removed due to resorption.

     Further, a May 1995 affidavit from Dr. Williams re-

emphasizes the purpose of plaintiff's surgery.  Importantly, Dr.

Williams states therein that:

     "[i]n 1992, 1993, and 1994, I did not treat Marie Boyd for

     or in connection with [TMJS] or any other procedure to alter

     vertical dimension.  Marie had no symptoms or clinical

     findings attributable to [TMJS].  No intraoral devices were

     utilized in her surgery.  Any alteration of vertical

     dimension would be considered a problem or complication of

     the surgery to remove the protheses ***."

     Defendant failed to present medical evidence to refute Dr.

Williams' opinion as to the purpose of plaintiff's surgery. 

Although defendant's employee relation's manager, John Swingle

(Swingle), testified at his deposition that he left it up to the

Plan's third party administrator, Employee Benefits Corporation

(EBC), to "look at [plaintiff's] symptoms or procedures or

whatever was involved ***," he stated that EBC did not provide,

nor did he request, any written document outlining their reasons

for recommending denial of benefits.

     In further response to his failure to consider plaintiff's

resorption symptoms, Swingle stated, "[t]he point was that

removal of the implants, in my opinion and the opinion of the

EBC, was most certainly related to the original TMJ surgery." 

Swingle's comment suggests that the decision to deny plaintiff

benefits was exclusively based on the fact that in 1983 she

suffered from TMJS and underwent a surgical replacement of her

TMJ with a prosthesis.

     We find that defendant's reading of the Plan was neither

based on a reasonable interpretation of the Plan's language, nor

on the evidence presented.  Dr. Williams' correspondence, coupled

with his affidavit, establishes that the 1994 surgical removal of

plaintiff's prosthesis, where no intraoral devices were used, was

neither a procedure which treated or was in connection with her

1983 TMJS, nor was it performed to alter her vertical dimension. 

Therefore, section (c)(20) of the Plan's general limitations

section does not bar plaintiff's claim for benefits.  As no

material question of fact exists, plaintiff is entitled to

summary judgment as a matter of law.

     Under these circumstances, the court erred in granting

defendant's motion for summary judgment and in denying

plaintiff's counter-motion for summary judgment.  In light of our

disposition of this issue, it is unnecessary for us to consider

plaintiff's alternative contention regarding defendant's alleged

select review of medical evidence.

     Based on the foregoing, we reverse the Tazewell County

circuit court's grant of defendant's motion for summary judgment

and denial of plaintiff's counter-motion for summary judgment.

     Reversed.

     LYTTON, P.J., and SLATER, J., concurred.



