University Hospitals of Cleveland v. EMERSON ELECTRIC COMPANY and EMERSON ELECTRIC COMPANY BENEFIT PLAN

*The Honorable Gerald E. Rosen, United States District Judge for the
Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0040P (6th Cir.)
File Name: 00a0040p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNIVERSITY HOSPITALS OF
C LEVELAND ,
Plaintiff-Appellant,
v.
EMERSON ELECTRIC
C OMPANY and EMERSON
ELECTRIC C OMPANY BENEFIT
P LAN ,
Defendants-Appellees.
;>

1
No. 98-4061
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 92-01555—Paul R. Matia, Chief District Judge.
Argued: August 5, 1999
Decided and Filed: February 1, 2000
Before: NELSON and MOORE Circuit Judges;
ROSEN, District Judge.*

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2 University Hospitals v.
Emerson Electric Co., et al.
No. 98-4061
_________________
COUNSEL
ARGUED: Daniel W. Dreyfuss, DANIEL W. DREYFUSS
CO., Cleveland, Ohio, for Appellant. Phillip J. Campanella,
CALFEE, HALTER & GRISWOLD, Cleveland, Ohio, for
Appellees. ON BRIEF: Daniel W. Dreyfuss, DANIEL W.
DREYFUSS CO., Cleveland, Ohio, for Appellant. Phillip J.
Campanella, CALFEE, HALTER & GRISWOLD, Cleveland,
Ohio, for Appellees.
ROSEN, D. J., delivered the opinion of the court, in which
MOORE, J., joined. NELSON, J. (pp. 25-29), delivered a
separate dissenting opinion.
_________________
OPINION
_________________
ROSEN, District Judge.
I. INTRODUCTION
Plaintiff/Appellant University Hospitals of Cleveland
(“UHOC”) appeals from the most recent award of summary
judgment in favor of Defendants/Appellees Emerson Electric
Company and the Emerson Electric Company Benefit Plan
(collectively, the “Plan”) in this action brought under the
Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1001 et seq. In the ruling now on
appeal, the District Court found that the Plan’s administrative
review body, the Employee Benefit Committee (“EBC”), did
not act arbitrarily or capriciously in denying a claim for health
care benefits made by UHOC as assignee of the claims of a
deceased Plan participant, Gerald Weaver. In a prior appeal,
we reversed an initial award of summary judgment to the
Plan, citing evidence in the record that the EBC had
“erroneously relied upon a provision that was not included in

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No. 98-4061 University Hospitals v.
Emerson Electric Co., et al.
3
the actual Plan documents.” See University Hosps. of
Cleveland v. Emerson Elec. Co. Benefit Plan, No. 93-4924,
slip op. at 4 (6th Cir. Dec. 22, 1994). Accordingly, we
ordered the matter remanded to the EBC with instructions to
reconsider UHOC’s claim in light of “the actual Plan
provisions applicable to such claim.” Id.
On remand, the EBC once again denied UHOC’s claim, and
the District Court again affirmed that decision under the
“arbitrary and capricious” standard of review. UHOC now
raises four arguments on appeal: (1) that the District Court
erred in ruling that the EBC’s decision on remand was exempt
from the time limits set forth in the Plan for acting upon
requests for review of claim denials; (2) that the lower court
improperly disregarded the “law of the case,” as purportedly
established in our earlier decision, regarding the applicability
of the Plan’s time limits on remand to the EBC; (3) that the
EBC’s decision on remand was tainted by the same error that
led us to reverse and remand in the initial appeal; and (4) that
the EBC acted arbitrarily and capriciously in denying benefits
based upon a determination that the decedent, Mr. Weaver,
suffered from a pre-existing condition. For the reasons stated
below, we find that the EBC’s decision to deny benefits was
arbitrary and capricious, and we accordingly reverse the
award of summary judgment to the Plan.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties
As we noted in our earlier decision, there is little, if any,
factual dispute in this case. Plaintiff/Appellant UHOC
brought this ERISA action as the assignee of Gerald Weaver,
seeking to recover benefits from the Defendant/Appellee Plan
for medical services rendered to Mr. Weaver before his death
on June 3, 1991. The Plan’s administrative review body, the
EBC, has twice denied UHOC’s claim for benefits, finding
that the medical services at issue were not covered by the Plan
because they constituted treatment for a pre-existing condition

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4 University Hospitals v.
Emerson Electric Co., et al.
No. 98-4061
suffered by Mr. Weaver before he became eligible for Plan
benefits.
Mr. Weaver began working for Automatic Switch Company
(“ASCO”), a division of Defendant/Appellee Emerson
Electric Company, on September 24, 1990. He became
eligible for medical benefits under the Plan on December 24,
1990, the ninetieth day of his employment. From March 27,
1991 until his death on June 3, 1991, Mr. Weaver received
treatment at UHOC for myelodysplastic syndrome, a bone
marrow disease. The principal dispute in this case is whether
Mr. Weaver received prior treatments for this disease that
would trigger the Plan’s “pre-existing condition” exclusion
from coverage.
B. Mr. Weaver’s 1990-91 Visits to Physicians and
Medical Treatments
On September 11, 1990, shortly before he began working
for ASCO, Mr. Weaver visited his physician, Dr. Unni
Kumar, complaining of fatigue and stress. Dr. Kumar
diagnosed Mr. Weaver as suffering from anemia,
recommended a blood test, and asked Mr. Weaver to return
for further evaluation. (J.A. at 468-70.) That same day, blood
samples were taken from Mr. Weaver and submitted to a
laboratory for analysis.
On September 28, 1990, four days after Mr. Weaver began
his employment at ASCO, Mr. Weaver again visited Dr.
Kumar to discuss the results of his recent blood test. Dr.
Kumar advised Mr. Weaver that the serum iron, folic acid,
and B-12 portions of this test were “all normal.” (J.A. at
474.) Nevertheless, in light of the previous diagnosis of
anemia, Dr. Kumar recommended that the blood test be
repeated “before we embark on a complete hematological
work-up.” (Id.) In accordance with this recommendation, a
second blood sample was taken from Mr. Weaver that day
and submitted for laboratory analysis. If this second test
No. 98-4061 University Hospitals v.
Emerson Electric Co., et al.
29
Given the structure of the Pre-existing Limitation provision,
where “Pre-existing” has no meaning except in relation to the
start of coverage and where the date used for the calculation
of the first two of the three time periods mentioned is clearly
the date on which the individual becomes eligible under the
plan, it was not irrational for the Committee to conclude that
the drafters intended the use of the same date for calculating
the third time period as well. This is not the only possible
construction of the provision, but it is certainly not an
irrational construction.
The parties agree that there was no three-month period
when Mr. Weaver was treatment-free between December 24,
1990, the date on which he became eligible for coverage, and
June 3, 1991, the date on which he died. Accordingly, and
because I agree with the district court that the Committee’s
most recent decision was rendered pursuant to the order of
remand and was not subject to the contractual time limits that
applied during the initial decision-making process, I would
affirm the challenged judgment.

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28 University Hospitals v.
Emerson Electric Co., et al.
No. 98-4061
489 U.S. 101, 115 (1989), and Yeager v. Reliance Standard
Life Ins. Co., 88 F.3d 376, 381 (6th Cir. 1996).
The record leaves no room for doubt as to why the
Committee upheld the denial of benefits in the case at bar. As
the deposition testimony of Committee Member James
Draeger shows, the Committee saw no reason even to
consider whether Mr. Weaver had received treatment or
services during the first 90 days after September 28, 1990.
The Committee upheld the denial of benefits solely on the
basis of its construction of the provisions of the Plan relating
to pre-existing medical conditions. And the record shows, I
believe, that the Committee had a rational basis for construing
the provisions in the way that it did.
Addressing the Pre-existing Limitation clause in the
Schedule of Benefits, Mr. Draeger explained at page 104 of
his deposition transcript that “this particular provision starts
where an individual is eligible for the plan . . . .” (Mr.
Weaver became eligible on December 24, 1990.) The
exclusion for medical expenses incurred in connection with
certain pre-existing conditions, Mr. Draeger went on to
explain, continues “for a period of one year.” Draeger Depo.
Trans. at 104-105. Once eligibility starts, in other words,
“[the exclusion] is going to go for one year from that
date. Or it is going to go . . . from that date for three
months.
Q From which date?
A We are talking about an individual becoming
eligible under the plan, so now the individual is
eligible. So now we are talking about one date
[i.e., one year] from the date of eligibility, or if
the individual has been free of treatment at any
three-month period during that particular one
year period of time, whichever fi[r]st occurs.”
Id. at 105.
No. 98-4061 University Hospitals v.
Emerson Electric Co., et al.
5
proved abnormal, Dr. Kumar “plan[ned] to refer [Mr.
Weaver] to a hematologist.” (Id.)
This September 28, 1990 test revealed a number of results
outside the normal range, including low red blood cell and
platelet counts, low hemoglobin and hematoocrit values, and
elevated MCV and MCH levels. (J.A. at 473.) Accordingly,
on October 8, 1990, Dr. Kumar called Mr. Weaver and
advised him to see a hematologist. (J.A. at 470.) Although
there are two subsequent entries in Dr. Kumar’s records for
the month of October — the first dated October 12, 1990,
scheduling Mr. Weaver for an additional blood test, and the
second dated October 26, 1990, reflecting Mr. Weaver’s
refusal to submit to this additional test, (J.A. at 475) — Mr.
Weaver declined any further treatment in October, citing a
lack of insurance coverage that would pay for a pre-existing
condition. (Id.)
Instead, Mr. Weaver elected to wait until January 8, 1991
— two weeks after his Plan eligibility date of December 24,
1990 — to visit a hematology specialist as recommended by
Dr. Kumar. The examining physician, Dr. Jon Reisman,
diagnosed Mr. Weaver as suffering from mild anemia and
moderately severe thrombocytopenia. (J.A. at 674.) Over the
course of the next several days, Mr. Weaver underwent a
number of procedures, including additional blood and bone
marrow tests, a chest x-ray, and a CT scan of his abdomen.
These procedures were intended, at least in part, to rule out a
diagnosis of myelodysplastic syndrome. (J.A. at 476.) When
the results proved inconclusive, Dr. Reisman referred Mr.
Weaver to Dr. James Weick at the Cleveland Clinic for
further evaluation. (J.A. at 671.)
Beginning on February 8, 1991 and continuing until his
death four months later, Mr. Weaver received a variety of
medical services and treatments at the Cleveland Clinic,
UHOC, and elsewhere. His treatments at UHOC commenced
on March 27, 1991, and resulted in total billings for medical
services in the amount of $233,829.75. Mr. Weaver

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6 University Hospitals v.
Emerson Electric Co., et al.
No. 98-4061
ultimately was diagnosed as suffering from myelodysplastic
syndrome, a bone marrow disease in which defective stem
cells proliferate to the exclusion of normal cells. This disease
evolved to acute leukemia, and led to Mr. Weaver’s death on
June 3, 1991 from kidney and heart failure. (J.A. at 536-37.)
C. The Relevant Plan Provisions
This case turns upon the EBC’s determination that all of the
medical expenses incurred by Mr. Weaver at UHOC derived
from treatments for a “pre-existing condition” as defined in
the Plan document, and therefore are not “covered medical
expenses” under the Plan. This determination rests upon the
following Plan provision, entitled “Pre-Existing Condition
Limits”:
Hospital expenses and other medical expenses incurred
in connection with a disease or injury for which a
covered individual received treatment or services or took
prescribed drugs during the three month period
immediately preceding the effective date of such
individual’s coverage under this Plan will not be
included as covered medical expenses prior to the earliest
of the dates shown in the Schedule of Benefits.
(Plan, § 4, ¶ 1.84, J.A. at 609.) The Plan’s Schedule of
Benefits, in turn, sets forth the terms under which a
participant may obtain coverage for a pre-existing condition:
No benefits are payable for a pre-existing illness or
injury for which an individual was treated or took
prescribed medicine within 3 months prior to coverage
until:
1) the individual has been covered under this Plan for
one year, or
2) the individual has been free of treatment for the
pre-existing illness or injury for 3 months.
No. 98-4061 University Hospitals v.
Emerson Electric Co., et al.
27
2) the individual has been free of treatment for the
pre-existing illness or injury for 3 months.”
As written, the second clause is open to conflicting
interpretations. It is possible that the drafters intended to
provide that the one-year-of-coverage requirement would be
overridden upon the expiration of three treatment-free months
commencing with the last treatment. Had this been their
intent, the drafters could have said so explicitly. They could
have said, for example, that the year-of-coverage requirement
would be overridden once the individual had gone without
treatment for three months “from the date of the last
treatment.” Unfortunately, the quoted words were not
included in the Pre-existing Limitation provision.
It is also possible – and perhaps more likely – that the
drafters intended to provide that the year-of-coverage
requirement would be overridden once the individual had
been free of treatment for three months during that first year
of coverage. Unfortunately, however, the drafters did not
explicitly say this either. Through inadvertence, no doubt,
they left their intention ambiguous.
Such ambiguities are almost certain to creep into a
document as complex as this one. The drafters could, of
course, have left the resolution of these inevitable ambiguities
to the courts. But they chose not to. Instead, the drafters
provided that a five-member Employee Benefit Committee
appointed by the Emerson Electric Company’s Board of
Directors should have “discretionary authority to determine
eligibility for benefits or to construe the terms of the Plan
. . . .” And they further provided that unless the Committee’s
construction of the Plan’s terms should be “arbitrary and
capricious” – i.e., simply irrational – the Committee’s
decision “shall be final and non-reviewable . . . .” In the face
of such language, it is clear that the courts have no authority
to second-guess the Committee unless the Committee has
acted irrationally. See Firestone Tire & Rubber Co. v. Bruch,

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26 University Hospitals v.
Emerson Electric Co., et al.
No. 98-4061
has not been briefed and argued, however, and I have
conducted no independent research on the matter. I dissent
here not because of what was said by the original panel (a
panel of which I was a member, incidentally), but because I
remain of the opinion that it was not irrational for the
Committee to construe the terms of the Plan as meaning that
no benefits would be payable in connection with Mr.
Weaver’s pre-existing illness during the first year of coverage
unless and until there had been three months of coverage in
which Mr. Weaver had been free of treatment for the illness.
I acknowledge that the language of the Plan is not as clear
as it might be. The Plan’s Benefit Provisions start off plainly
enough by establishing certain “Pre-Existing Condition
Limits” once coverage commences:
“Hospital expenses and other medical expenses incurred
in connection with a disease or injury for which a
covered individual received treatment or services or took
prescribed drugs during the three month period
immediately preceding the effective date of such
individual’s coverage under this Plan will not be
included as covered medical expenses prior to the earliest
of the dates shown in the Schedule of Benefits.”
Under the catchline “Pre-existing Limitation” (a reference,
obviously, to the limits pertaining to medical conditions that
were “pre-existing” as of the commencement of coverage),
the Plan’s Schedule of Benefits – speaking as of the
commencement of coverage, in the Committee’s undertaking
– then says this:
“No benefits are payable for a pre-existing illness or
injury for which an individual was treated or took
prescribed medicine within 3 months prior to coverage
until:
1) the individual has been covered under this Plan
for one year, or
No. 98-4061 University Hospitals v.
Emerson Electric Co., et al.
7
1As we observed in UHOC’s prior appeal to this Court, PAI’s
reference to a condition “for which you received diagnosis” does not
comport with either the Plan or the SPD, both of which speak only of
receiving treatment or taking prescribed drugs.
(Plan, § 7, at 3, J.A. at 625.)
The Summary Plan Description (“SPD”) includes similar
language, in a section entitled “Expenses Not Covered”:
No medical benefits will be paid for the following:
• A pre-existing illness or injury for which you were
treated or took prescribed medicines within 3 months
before your coverage began until:
— you have been covered under this Plan for a year, or
— you haven’t had any charges for this illness or
injury for 3 months,
whichever comes first . . . .
(SPD at 12, J.A. at 157.)
D. Procedural Background
This case has a lengthy procedural history. In May of 1991,
shortly before his death, Mr. Weaver sought reimbursement
from the Plan for a portion of the medical expenses he
incurred at UHOC and elsewhere. On May 29, 1991, the
Plan’s third-party administrator, Pension Associates
Incorporated (“PAI”), denied this claim for benefits, stating
that “[n]o benefits are payable for a condition for which you
received diagnosis, were treated or took prescribed medicines
within 3 months before [the] effective date” of Plan coverage.
(J.A. at 224.)1 On August 15, 1991, PAI reiterated this
position upon being presented with a request for

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8 University Hospitals v.
Emerson Electric Co., et al.
No. 98-4061
reimbursement of additional medical expenses incurred by
Mr. Weaver before his death. (J.A. at 355.)
On November 11, 1991, the executor of Mr. Weaver’s
estate, Clark Weaver, assigned to UHOC “all benefits in the
form of health insurance or similar benefits under an
employer-sponsored health and welfare fund which Gerald
Weaver (deceased) had at the time of his treatment at
[UHOC], not to exceed the hospital/physician charges.” (J.A.
at 28.) At about the same time, Clark Weaver appealed the
denial of benefits to the Plan’s administrative review body,
the EBC, asserting that Mr. Weaver “had never been
diagnosed nor had he ever been treated for any condition”
prior to the date of Plan coverage. (J.A. at 364.) On April 10,
1992, the EBC denied this appeal, quoting the above-cited
Plan language regarding pre-existing conditions, and stating
that “based upon the information which was reviewed by two
medical consultants, it is the Committee’s decision that [Mr.
Weaver’s] illness was pre-existing and, as such, the charges
have been correctly denied.” (J.A. at 225.)
UHOC then brought this action on July 1, 1992, seeking
reversal of the EBC’s decision to deny benefits. On October
29, 1993, the District Court granted the Plan’s motion for
summary judgment. In so ruling, the Court found that Mr.
Weaver’s September 28, 1990 visit to Dr. Kumar triggered
the Plan’s “pre-existing condition” exclusion, because it
occurred less than three months before Mr. Weaver became
eligible for Plan coverage on December 24, 1990. The Court
next held that the EBC had reasonably construed the Plan’s
Schedule of Benefits as requiring that a participant go without
treatment of a pre-existing condition for three months after
his Plan eligibility date — as opposed to any three-month
period, before or after the eligibility date, as UHOC
contended — in order to qualify for coverage of further
medical expenses incurred in connection with a pre-existing
condition. Because Mr. Weaver had visited a physician on
January 8, 1991, just two weeks after his eligibility date, the
No. 98-4061 University Hospitals v.
Emerson Electric Co., et al.
25
________________
DISSENT
________________
DAVID A. NELSON, Circuit Judge, dissenting. I agree
with my colleagues on the panel that the Employee Benefit
Committee did not act irrationally in determining that Mr.
Weaver received “treatment or services” when he saw Dr.
Kumar on September 28, 1990. I also agree that the
Committee did not act irrationally in determining that the
hospital and medical expenses incurred after the
commencement of coverage were incurred in connection with
the same pre-existing disease for which Mr. Weaver received
treatment or services on September 28. I cannot agree,
however, that the Committee acted irrationally in determining
that Mr. Weaver failed to come within the three-months-
without-treatment exception to the provision under which the
payment of benefits for such a pre-existing disease is barred
until there has been a full year of coverage.
If the Committee was irrational in finding this exception
inapplicable, then a unanimous three-judge panel of this court
must have been equally irrational when, speaking for the court
when the case was here earlier, the panel quoted the pertinent
sections of the Plan in their entirety and went on to note that
neither exception to the preclusion of benefits for certain pre-
existing conditions – neither the one-year-of-coverage
provision nor the three-months-without-treatment provision
– had been satisfied in the matter at hand. See University
Hospital of Cleveland v. Emerson Electric Co. Benefit Plan,
No. 93-4924, slip op. at 3 n.1 (6th Cir. Dec. 22, 1994) (“It
should be noted that neither exception (1) nor exception (2)
applies to the matter at hand”).
I should have thought, at first blush, that this court’s 1994
opinion might well have established the law of the case with
respect to the issue on which the current panel rests its
decision. The applicability of the law-of-the-case doctrine

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24 University Hospitals v.
Emerson Electric Co., et al.
No. 98-4061
13Because the EBC determined that the expenses incurred at UHOC
were wholly excluded from coverage as relating to a “pre-existing
condition,” it appears that neither the third-party administrator nor the
EBC considered whether the particular expenses claimed by UHOC were
covered by the Plan, subject to a deductible, or the like. Thus, we cannot
order an award of benefits, but must order the matter remanded to the
EBC, with the understanding that further proceedings must be confined
to addressing the specific expenses contained in UHOC’s claim.
it be remanded to the EBC for further proceedings in
accordance with our ruling.13
IV. CONCLUSION
For the foregoing reasons, we REVERSE the judgment of
the court below and REMAND this matter to the District
Court, with instructions that UHOC’s claim be remanded to
the EBC for further proceedings consistent with this decision.
No. 98-4061 University Hospitals v.
Emerson Electric Co., et al.
9
Court upheld the EBC’s determination that his subsequent
medical expenses were not covered under the Plan.
UHOC appealed to this Court, and we reversed. In our
December 22, 1994 Opinion, we held that the EBC’s
determination could not be sustained, in light of the evidence
in the record that the EBC had considered a definition of “pre-
existing condition” that could not be found either in the Plan
or in the SPD. Accordingly, we ordered the matter remanded
to the EBC with instructions to review UHOC’s claim “under
the terms of the actual Plan provisions applicable to such
claim.” University Hosps. of Cleveland v. Emerson Elec. Co.
Benefit Plan, No. 93-4924, slip op. at 4 (6th Cir. Dec. 22,
1994).
On remand, the EBC again concluded, in a decision dated
June 7, 1995, that UHOC was not entitled to an award of
benefits:
After a thorough reconsideration and review, the
Employee Benefit Committee voted unanimously to deny
the appeal of the University Hospitals of Cleveland. The
Employee Benefit Committee concluded that the expert
testimony establishes that Gerald Weaver had a disease
for which he received treatment or services during the
three month period immediately preceding the effective
date of his coverage under the Plan.
In addition, the evidence establishes that Mr. Weaver
was not covered by the Plan for one year, and the
evidence further establishes that Mr. Weaver had not
been free of treatment for the pre-existing condition for
the three month period as required by the terms of the
Plan. This decision is consistent with past interpretations
of the applicable Plan provisions.
(J.A. at 767-68.)
Following this second EBC determination, the District
Court issued an Opinion and Order on January 17, 1997,

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10 University Hospitals v.
Emerson Electric Co., et al.
No. 98-4061
2We recently held in Wilkins v. Baptist Healthcare Sys., Inc., 150
F.3d 609, 617-19 (6th Cir. 1998), that summary judgment generally is an
inappropriate mechanism for adjudicating ERISA claims for benefits.
The District Court did not have the benefit of this decision, issued just a
few days before the ruling now on appeal. In any event, as we explained
in Wilkins, such reliance on summary judgment standards does not
warrant reversal, so long as the District Court’s review of the challenged
benefit decision is confined to the evidence contained in the
administrative record. 150 F.3d at 620. The lower court’s decision in this
case appears to satisfy this standard. Likewise, in our review of the
District Court’s ruling, we will consider only the materials available to the
EBC, and not any depositions, affidavits, or similar litigation-related
materials that the parties submitted to the District Court.
restoring the case to its active docket, and setting a briefing
schedule for cross-motions for summary judgment. The
parties filed their cross-motions and, by Opinion and Order
dated August 6, 1998, the Court granted the Plan’s motion
and denied UHOC’s motion. In this decision, as in its 1993
ruling, the District Court found that the EBC’s denial of
benefits was not arbitrary and capricious. The Court also
rejected UHOC’s argument that the EBC failed to timely
issue its latest decision in accordance with the relevant Plan
provision governing appeals of claim denials. UHOC now
appeals this latest award of summary judgment to the Plan.2
III. ANALYSIS
A. The Standards Governing Review of the Challenged
Denial of Benefits
A participant or beneficiary of an ERISA plan — or, as in
this case, an assignee of the rights held by a plan participant
— may bring suit in federal district court to recover benefits
allegedly due under the terms of the plan. See 29 U.S.C.
§ 1132(a)(1)(B). It is by now well-established that courts
review such challenges to benefit determinations under the de
novo standard, unless the benefit plan gives the plan
administrator discretionary authority to determine eligibility
for benefits or to construe the terms of the plan. See
No. 98-4061 University Hospitals v.
Emerson Electric Co., et al.
23
thereby satisfied the Plan’s requirement for coverage of a pre-
existing condition. Thus, having surveyed all of the possible
bases for the EBC’s determination to the contrary, and finding
each of them lacking in reasoned justification, we conclude
that the EBC’s decision to deny UHOC’s claim was arbitrary
and capricious.
In so holding, we cannot be blind to the totality of the
circumstances surrounding Mr. Weaver’s medical treatment.
According to Dr. Kumar’s medical records, Mr. Weaver
affirmatively cited the “pre-existing condition” limitation on
his health care coverage when he refused further treatment in
October of 1990. The Plan suggests that this was
opportunistic behavior, and urges us to reject “the notion that
a person can deliberately and intentionally ignore a
recommended course of care in order to create the illusion of
the absence of treatment for an existing disease.”
(Defendants/Appellees’ Appeal Br. at 30.) Yet, we discern no
“illusion” here, nor any unfairness in the result. Rather, Mr.
Weaver’s conduct was the entirely foreseeable and reasonable
product of Plan language that created an incentive to forego
treatment of a pre-existing condition. If the Plan wishes to
curtail “deliberate and intentional” elections by its
participants to “ignore” recommended courses of treatment,
then the Plan should be amended so as not to encourage such
behavior.
As the Plan is now written, however, such conduct is
rewarded, and we see no reason to penalize Mr. Weaver for
conforming his health care decisions to a reasonable —
indeed, in our view, the only reasonable — construction of the
Plan. Accordingly, we find that the EBC’s denial of UHOC’s
claim for benefits was arbitrary and capricious, we reverse the
judgment of the court below upholding this denial, and we
remand this matter to the District Court with instructions that

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22 University Hospitals v.
Emerson Electric Co., et al.
No. 98-4061
12Tellingly, in an August 20, 1991 letter clarifying “the status of Mr.
Gerald Weaver and the contact he has had with our office,” Dr. Kumar
did not even mention any contacts with Mr. Weaver in October of 1990,
but instead concluded his summary with the September 28, 1990 office
visit. (J.A. at 367.)
be termed “treatment” was administered or received on
October 8. See American Heritage College Dictionary 1440
(3d ed. 1993) (defining “treatment” as “[a]dministration or
application of remedies to a patient or for a disease or an
injury,” or “[t]he substance or remedy so applied”). Rather,
the treatment was received on September 28, and the
doctor/patient contact on October 8 merely followed up on
this prior treatment, reporting its outcome and recommending
further treatment.12 We do not believe that a mere
recommendation constitutes treatment, particularly where, as
here, the patient declines to adopt the recommended course of
care.
The Plan’s suggestion that the October 8 contact was part
of an ongoing “treatment” is all the more untenable when
considered in light of the SPD, which effectively equates
“treatment” with “charges.” The record does not indicate that
Mr. Weaver incurred any charges based on Dr. Kumar’s
October 8 telephone call, and one would not expect that such
a physician contact following an office visit would result in a
separate charge. Because we must give controlling effect to
the language of the SPD, it is not enough that the October 8
contact might constitute “treatment” under some conceivable
definition of that term, if Mr. Weaver incurred no charges that
day.
In any event, even if the October 8 contact could be viewed
as “treatment” under the Plan and its SPD, Mr. Weaver
waited three full months, until January 8, 1991, before
seeking any further treatment of his condition. Under the
plain language of the Plan, then, Mr. Weaver remained “free
of treatment for the pre-existing illness or injury for three
months,” between October 8, 1990 and January 8, 1991, and
No. 98-4061 University Hospitals v.
Emerson Electric Co., et al.
11
3While conceding that this Plan language, viewed in isolation,
dictates application of the deferential “arbitrary and capricious” standard,
UHOC argues that the de novo standard should apply here by virtue of the
EBC’s alleged failure to timely issue a decision following our prior
remand of this matter to that body for reconsideration. As UHOC points
out, if a plan administrator fails to timely decide an appeal of a claim
denial, the challenged claim “shall be deemed denied on review,” 29
C.F.R. § 2560.503-1(h)(4), and the claimant may then “bring a civil action
to have the merits of his application determined, just as he may bring an
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115,
109 S. Ct. 948, 956 (1989); Smith v. Ameritech, 129 F.3d 857,
863 (6th Cir. 1997). In this latter case, the administrator’s
benefit determination is reviewed under an “arbitrary and
capricious” standard. Firestone, 489 U.S. at 115, 109 S. Ct.
at 956-57; Smith, 129 F.3d at 863.
The Plan in this case provides that the EBC “shall have the
discretionary authority to determine eligibility for benefits or
to construe the terms of the Plan,” (Plan, § 6, Blanket
Amendment, J.A. at 629), and further provides:
The Employee Benefit Committee, as outlined in
Section One (2.), is empowered to review requests for
review of denied claims submitted in writing by any
participant. The Plan gives the Employee Benefit
Committee the discretionary authority to determine
eligibility for benefits or to construe the terms of the Plan
in carrying out the duties outlined in this Section [i.e.,
Section 5] and Section One (2.). The decision of the
Review Board shall be final and non-reviewable unless
found to be arbitrary and capricious by a court of
competent review.
(Id.) As the parties apparently agree, this language constitutes
a sufficient grant of discretionary authority to trigger
application of the “arbitrary and capricious” standard of
review. See, e.g., Bagsby v. Central States, Southeast &
Southwest Areas Pension Fund, 162 F.3d 424, 428 (6th Cir.
1998); Smith, 129 F.3d at 863.3

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12 University Hospitals v.
Emerson Electric Co., et al.
No. 98-4061
action to challenge an outright denial of benefits.” Massachusetts Mut.
Life Ins. Co. v. Russell, 473 U.S. 134, 144, 105 S. Ct. 3085, 3091 (1985).
Although neither the regulation nor Russell addresses the applicable
standard of review in such circumstances, there is undeniable logic in the
view that a plan administrator should forfeit deferential review by failing
to exercise its discretion in a timely manner. But see Daniel v. Eaton
Corp., 839 F.2d 263, 267 (6th Cir. 1988) (stating that “the standard of
review is no different whether the appeal is actually denied or is deemed
denied”), cert. denied, 488 U.S. 826 (1988). In any event, given our
ruling on the merits of the EBC’s denial of benefits, we need not decide
whether the EBC timely issued its decision on remand, nor whether any
failure to timely decide UHOC’s appeal should trigger a less deferential
standard of review.
Under this deferential “arbitrary and capricious” standard,
we will uphold a benefit determination if it is “rational in
light of the plan’s provisions.” Yeager v. Reliance Standard
Life Ins. Co., 88 F.3d 376, 381 (6th Cir. 1996) (internal
quotations and citation omitted). Stated differently, “[w]hen
it is possible to offer a reasoned explanation, based on the
evidence, for a particular outcome, that outcome is not
arbitrary or capricious.” Davis v. Kentucky Finance Cos.
Retirement Plan, 887 F.2d 689, 693 (6th Cir. 1989) (internal
quotations and citation omitted), cert. denied, 495 U.S. 905
(1990).
We note, however, that our deferential review of the benefit
denial at issue here is tempered by two principles. First, as
UHOC argued in the early stages of this litigation before the
District Court, we should not overlook the fact that the Plan
is funded largely by Defendant/Appellee Emerson Electric,
and that the EBC is appointed by Emerson’s Board of
Directors. The “possible conflict of interest” inherent in this
situation “should be taken into account as a factor in
determining whether the [EBC’s] decision was arbitrary and
capricious.” Davis, 887 F.2d at 694; see also Borda v. Hardy,
Lewis, Pollard & Page, P.C., 138 F.3d 1062, 1069 (6th Cir.
No. 98-4061 University Hospitals v.
Emerson Electric Co., et al.
21
condition. Although this phrase is not further defined in the
Plan, the Summary Plan Description (“SPD”) restates the
Plan’s three-month treatment-free provision as requiring that
“you haven’t had any charges for this illness or injury for 3
months.” (SPD at 12, J.A. at 157 (emphasis added).)
Because employees rely on summary descriptions “for
information which will allow them to make intelligent
decisions about their future benefit needs,” we have held that
the language of the SPD controls over any conflicting
language in the Plan itself. Helwig v. Kelsey-Hayes Co., 93
F.3d 243, 247-48 (6th Cir. 1996), cert. denied, 519 U.S. 1059
(1997). Accordingly, in considering the Plan’s contention
that Mr. Weaver was not “free of treatment” in October of
1990, we must be mindful of the SPD’s linkage between
“treatment” and “charges.”
Viewed in this context, it is clear that nothing in Mr.
Weaver’s medical history for October of 1990 could
reasonably be considered “treatment.” First, the cursory entry
for October 12 does not establish any contact whatsoever
between Mr. Weaver and his physician, much less the
“treatment” required under the terms of the Plan. Next, the
October 26 entry not only fails to reflect any treatment
received by Mr. Weaver, but affirmatively shows his refusal
of treatment. Plainly, such a refusal cannot be equated with
treatment, as it is the very antithesis of treatment. And, the
record is devoid of any evidence that Mr. Weaver incurred
charges relating to these October 12 and October 26 entries in
his medical history.
Turning, finally, to the October 8 contact between Dr.
Kumar and Mr. Weaver, the Plan asserts that it is reasonable
to view this as a continuation of the September 28 office visit,
in which Dr. Kumar reported the results of the tests
administered during the office visit and recommended a
further course of action. Yet, the Plan itself is clear in stating
that only treatment is relevant, and not, for example, the mere
“services” that are sufficient to initially trigger the exclusion
for pre-existing conditions. Simply stated, nothing that could

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20 University Hospitals v.
Emerson Electric Co., et al.
No. 98-4061
10The record does not indicate whether this blood test was to occur
on October 12 or some other date, nor whether Mr. Weaver was contacted
in regard to this matter. In any event, it appears that Dr. Kumar’s office
did not administer any blood tests in October.
11We note that there is nothing in the administrative record to
indicate that the EBC ever made such a finding of a “continuing course
of treatment” extending into October of 1990. Nevertheless, in the
interest of resolving this nearly eight-year-old litigation, we will address
this argument as a possible alternate ground for sustaining the EBC’s
decision.
without “treatment” for this condition, whether before or after
his Plan eligibility date. The parties agree that Mr. Weaver
did not seek treatment in November or December of 1990,
and that his treatment resumed on January 8, 1991. The
dispositive question, therefore, is whether Mr. Weaver was
“free of treatment” during all or most of October, 1990, so
that there was a three-month period before January 8, 1991 in
which he received no treatment for his condition.
Dr. Kumar’s medical history for Mr. Weaver includes three
entries for October of 1990. First, on October 8, 1990, Dr.
Kumar called Mr. Weaver to inform him of the results of his
recent blood test and recommend that he see a hematologist.
(J.A. at 470.) Next, there is a short entry for October 12,
1990, stating only “CBC,” which apparently reflects an
attempt to schedule an additional blood test.10 (J.A. at 475.)
Finally, an entry dated October 26, 1990 indicates that Mr.
Weaver refused a blood test, stating that his health insurance
would not cover a pre-existing condition. (Id.) The Plan
argues that these October entries reflect a “continuing” course
of treatment which began with Mr. Weaver’s September 28
office visit. (Defendants/Appellees’ Appeal Br. at 27.)11
We cannot accept this as a reasonable characterization of
Mr. Weaver’s medical history. We begin by observing that
the Plan itself offers considerable guidance in determining
what it means to be “free of treatment” for a pre-existing
No. 98-4061 University Hospitals v.
Emerson Electric Co., et al.
13
4In its initial decision granting summary judgment to the Plan, the
District Court rejected UHOC’s claim of a conflict of interest, reasoning
that “[t]he Plan is clearly a separate and distinct entity requiring fiduciary
duties under ERISA.” (District Court’s 10/29/93 Op. at 4, J.A. at 680.)
Because we found a different defect in the EBC’s decisional process, we
did not reach this issue in the initial appeal, and UHOC has not raised it
in the present appeal. Nevertheless, we believe it appropriate to observe
here that the mere existence of fiduciary duties, which always are present
in any benefit determination governed by ERISA, does not obviate the
need to more carefully examine decisions that might be tainted by a
conflict of interest. Courts should be particularly vigilant in situations
where, as here, the plan sponsor bears all or most of the risk of paying
claims, and also appoints the body designated as the final arbiter of such
claims. Under these circumstances, the potential for self-interested
decision-making is evident.
1998).4 Next, to the extent that the Plan’s language is
susceptible of more than one interpretation, we will apply the
“rule of contra proferentum” and construe any ambiguities
against Defendants/Appellees as the drafting parties. Perez
v. Aetna Life Ins. Co., 150 F.3d, 550, 557 n. 7 (6th Cir. 1998).
B. The EBC’s Interpretation of the Plan as Not Covering
the Medical Expenses Mr. Weaver Incurred at
UHOC Is Arbitrary and Capricious.
As indicated by the above-quoted Plan provisions relating
to pre-existing conditions, the EBC’s consideration of
UHOC’s claim for benefits involved a two-step inquiry. First,
under the Plan’s definition of a “pre-existing condition,” the
EBC had to determine whether Mr. Weaver’s medical
expenses at UHOC were “incurred in connection with a
disease or injury for which [Mr. Weaver] received treatment
or services or took prescribed drugs during the three month
period immediately preceding” Mr. Weaver’s Plan eligibility
date of December 24, 1990. If so — in other words, if Mr.
Weaver’s medical expenses were traceable to a “pre-existing
condition” — the EBC then would have to consider whether
Mr. Weaver satisfied either of the two conditions under which
the Plan would commence to pay expenses relating to this

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14 University Hospitals v.
Emerson Electric Co., et al.
No. 98-4061
“pre-existing condition”: namely, either (1) that Mr. Weaver
was “covered under this Plan for one year,” or (2) that he had
been “free of treatment for the pre-existing illness or injury
for 3 months.” Upon carrying out this two-step inquiry, the
EBC concluded that Mr. Weaver’s UHOC expenses were
traceable to a pre-existing condition, but that he had not
satisfied either of the two conditions for coverage of this pre-
existing condition by the time he was treated at UHOC.
UHOC now challenges both of these conclusions.
As for the first step of the inquiry — namely, whether Mr.
Weaver triggered the “pre-existing condition” exclusion by
receiving “treatment or services” within three months prior to
his Plan eligibility date of December 24, 1990 — we find that
the EBC’s determination was reasonable in light of the
available evidence. It is undisputed that Mr. Weaver visited
his physician, Dr. Kumar, on September 28, 1990, and that he
provided a blood sample for testing that day. Plainly, then,
Mr. Weaver received medical treatment or services within the
three-month period prior to December 24, 1990.
UHOC, however, challenges the EBC’s finding that the
condition for which Mr. Weaver received treatment on
September 28, 1990, was the same “pre-existing condition”
for which he subsequently received treatment at UHOC in
March through June of 1991. In reaching this conclusion, the
EBC obtained and considered two separate and independent
medical opinions, both of which indicated that the condition
diagnosed in early 1991 was a continuation of the condition
for which Mr. Weaver sought treatment in September of
1990. (J.A. at 543-44.) In addition, in its review upon
remand, the EBC heard a presentation from UHOC’s counsel,
and was provided an opinion from UHOC’s medical expert,
Dr. Lawrence Kass, stating that it was “uncertain” whether the
anemia diagnosed by Dr. Kumar in September of 1990
“eventually evolved” into myelodysplasia, and that it would
be “only speculative” to so conclude. (J.A. at 391.)
No. 98-4061 University Hospitals v.
Emerson Electric Co., et al.
19
9Although Plan participants are required to pay certain deductibles
and co-pays, there is nothing in the record to indicate that any such
participant contributions would significantly reduce the burden on the
Plan if it were determined that the Plan must pay UHOC’s claim.
Given all these express references to the date a participant’s
coverage commences, we cannot help but place significance
on the absence of any such language in the three-month
treatment-free provision at issue here. If we were to view the
Plan as “impliedly” including the additional qualification
imposed by the EBC, we would sanction an inconsistent
reading and permit the Plan to have it both ways. Under the
EBC’s interpretation, a Plan participant triggers the “pre-
existing condition” exclusion by accepting any treatment or
services at any time within the three months prior to his Plan
coverage date. Yet, in the EBC’s view, no significance
attaches to any decision by a Plan participant to forego
treatment during this same three-month period; such
decisions, we are told, count only if made after the Plan
coverage date.
We cannot accept this attempt to impose an additional and
one-sided limitation not stated in the Plan itself. This is
particularly so where, as we have noted, the Plan is largely
funded by Defendant/Appellee Emerson Electric and the EBC
is appointed by Emerson’s Board of Directors, so that the
EBC has an evident self-interest in seeing that UHOC’s rather
sizable claim is not paid.9 Moreover, the rule of contra
proferentum precludes the EBC from finding an “ambiguity”
in the Plan’s three-month treatment-free provision, and then
invoking its discretionary power to “construe” this provision
in the Plan’s favor. There is no ambiguity here: the provision
in question includes no limitation beyond the requirement of
three months without treatment.
This leads us to the second suggested basis for the EBC’s
decision: that, following his visit to Dr. Kumar in late
September of 1990 which triggered the “pre-existing
condition” exclusion, Mr. Weaver never went three months

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18 University Hospitals v.
Emerson Electric Co., et al.
No. 98-4061
8Likewise, the SPD requires only that “you haven’t had any charges
for this illness or injury for 3 months,” and does not further specify that
this three-month period must follow the date of Plan coverage.
coverage of expenses incurred in connection with a pre-
existing condition, a participant must be “free of treatment for
the pre-existing illness or injury for 3 months.” On its face,
this language is satisfied by any three-month period without
treatment, whether it falls entirely after the Plan eligibility
date or extends into the 90-day period before an employee is
covered by the Plan.8 It is not a permissible act of
“construction” to augment this language with the additional
qualifier that a participant must be “free of treatment . . . for
3 months after the effective date of Plan coverage.” Rather,
the terms of the Plan must be construed “according to their
plain meaning, in an ordinary and popular sense,” Perez, 150
F.3d at 556, and those terms simply do not impose the
requirement that a participant not seek treatment for three
months after he is covered by the Plan.
The implausibility of the EBC’s interpretation is amply
illustrated through comparison with other Plan language, also
relating to “pre-existing conditions,” that does compute time
periods by reference to a participant’s date of coverage. For
example, the Plan defines a “pre-existing condition” as one
“for which a covered individual received treatment or services
or took prescribed drugs during the three month period
immediately preceding the effective date of such
individual’s coverage under this Plan.” (J.A. at 609
(emphasis added).) The Plan further provides that coverage
of a pre-existing condition will commence once the
participant “has been covered under this Plan for one
year.” (J.A. at 625 (emphasis added).) Similarly, the SPD
states that a pre-existing condition is one “for which you were
treated or took prescribed medicines within 3 months before
your coverage began,” and that medical expenses will be
paid for such a condition once “you have been covered under
this Plan for a year.” (J.A. at 157 (emphasis added).)
No. 98-4061 University Hospitals v.
Emerson Electric Co., et al.
15
5UHOC argues that these expert opinions necessarily are “tainted”
by our ruling in the prior appeal that the EBC’s initial decision might have
rested upon a definition of “pre-existing condition” not found in the Plan
or the SPD. As the District Court observed in rejecting this argument,
however, these medical opinions do not turn on matters of Plan
interpretation or any particular definition of “pre-existing condition,” but
instead are based upon analysis of Mr. Weaver’s medical history to see
whether his treatments before and after December 24, 1990 were directed
at the same or different medical conditions. Once the medical experts
weighed in on this issue, it was left to the EBC to decide whether Mr.
Weaver’s particular interactions with medical personnel in the three
months before December 24, 1990 constituted “receiv[ing] treatment or
services or t[aking] prescribed drugs” within the meaning of the Plan’s
definition of a “pre-existing condition.”
Given this range of medical opinions and evidence before
the EBC, we cannot say that its determination on this point
was arbitrary and capricious. In particular, where the EBC’s
decision enjoys the support of two independent medical
opinions, it is sufficiently grounded in reason and evidence to
satisfy the “least demanding form of judicial review,” the
arbitrary and capricious standard. Davis, 887 F.2d at 693
(internal quotations and citation omitted). Although UHOC’s
medical expert reached a different conclusion, complete
consensus is not required to establish a reasoned basis for an
administrative decision. Indeed, even UHOC’s expert was
unwilling to say that the anemia suffered by Mr. Weaver in
September of 1990 was altogether unrelated to the
myelodysplastic syndrome that ultimately led to his death; he
stated only that any such connection was “uncertain” and
“speculative.” The EBC could rationally have elected instead
to heed the opinions of two other experts, both of whom
viewed the evidence in Mr. Weaver’s medical history as
sufficient to make this connection.5
The next step in the EBC’s inquiry, however, is more
problematic. All are agreed that Mr. Weaver was not covered
under the Plan for a year prior to his treatment at UHOC, so
that he did not satisfy the first of the two conditions for Plan
coverage of a pre-existing disease. The EBC also found that

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16 University Hospitals v.
Emerson Electric Co., et al.
No. 98-4061
6As Judge Nelson notes in his dissent, our decision in the prior
appeal of this case included a footnote tersely stating, without discussion,
that the Plan’s three-month treatment-free provision did not “appl[y] to
the matter at hand.” University Hosps. of Cleveland v. Emerson Elec. Co.
Benefit Plan, No. 93-4924, slip op. at 3 n.1 (6th Cir. Dec. 22, 1994).
Notably, in the present appeal, the Plan does not even mention this earlier
statement, much less argue that we have already ruled upon the
applicability of the three-month treatment-free provision. Similarly, while
Judge Nelson quotes this footnote, he elects not to rely on the “law of the
case” doctrine in his dissent. Having considered the matter, we do not
believe that this statement represents the “law of the case,” where our
earlier ruling did not address the merits of or reasoning behind the EBC’s
initial denial of benefits, but instead rested on the limited ground that the
EBC might have erroneously relied on language not found in the Plan
itself. As we have observed, the “law of the case” doctrine is “limited to
those questions necessarily decided in the earlier appeal.” Hanover Ins.
Co. v. American Eng’g Co., 105 F.3d 306, 312 (6th Cir. 1997).
7The dissent sees “no room for doubt” that this construction was the
one adopted by the EBC in denying UHOC’s claim. This conclusion is
based on the deposition testimony of one EBC member, James Draeger;
the EBC’s written decision includes no such statement of its reasoning.
Our decision in Wilkins, supra, 150 F.3d at 618, however, precludes us
Mr. Weaver did not satisfy the second condition, stating in its
June 7, 1995 decision that “the evidence further establishes
that Mr. Weaver had not been free of treatment for the pre-
existing condition for the three month period as required by
the terms of the Plan.” (J.A. at 768.) We find insufficient
support in the record to sustain this determination, even under
the deferential “arbitrary and capricious” standard of review.6
While the EBC’s decision is stated in somewhat conclusory
fashion, the Plan suggests two possible rationales for this
decision, and argues that either is adequate to sustain it. First,
we are told that the EBC “construed the Plan as requiring
participants with a pre-existing disease to be free of treatment
for a three month period after the effective date of coverage
by the Plan in order to receive benefits for the pre-existing
disease.” (Defendants/Appellees’ Appeal Br. at 25-26
(emphasis added).)7 Given the EBC’s discretionary authority
No. 98-4061 University Hospitals v.
Emerson Electric Co., et al.
17
from considering evidence, such as Draeger’s testimony, that is not part
of the administrative record.
Indeed, we should be all the more reluctant to stray from the
administrative record where, as here, the proffered evidence is one
person’s post hoc explanation of an administrative body’s decision. In an
analogous situation, we do not look to post-enactment statements of
legislators when determining the meaning of statutes. See Michigan
United Conservation Clubs v. Lujan, 949 F.2d 202, 209-10 (6th Cir.
1991). More importantly, it strikes us as problematic to, on one hand,
recognize an administrator’s discretion to interpret a plan by applying a
deferential “arbitrary and capricious” standard of review, yet, on the other
hand, allow the administrator to “shore up” a decision after-the-fact by
testifying as to the “true” basis for the decision after the matter is in
litigation, possible deficiencies in the decision are identified, and an
attorney is consulted to defend the decision by developing creative post
hoc arguments that can survive deferential review. The concerns inherent
in this scenario are even more pronounced where, as here, the
administrator has a financial incentive to deny benefits. To depart from
the administrative record in this fashion would, in our view, invite more
terse and conclusory decisions from plan administrators, leaving room for
them — or, worse yet, federal judges — to brainstorm and invent various
proposed “rational bases” when their decisions are challenged in ensuing
litigation. At a minimum, if we permit such rehabilitation of the
administrative record, there no longer is any reason why we should not
apply a more searching de novo review of the administrator’s decision.
Having said this, we do not mean to imply that Mr. Draeger’s
testimony fails to accurately reflect the basis for the EBC’s decision. The
point is, we simply cannot tell from the text of the decision itself, nor
from the administrative record. Ideally, that text should be the principal
point of reference in our review of a challenged denial of benefits.
in matters of Plan interpretation, the Plan argues that we must
defer to this construction of the three-month treatment-free
requirement. If this proposed construction is accepted, it
follows that the EBC properly denied UHOC’s claim, as it is
undisputed that Mr. Weaver sought treatment within two
weeks after he became eligible for Plan benefits.
Upon reviewing the plain language of the Plan, however,
we find that the EBC has exceeded its power to interpret the
Plan, and instead has effectively rewritten it. To trigger

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