for the Fourth Circuit for the Fourth Circuit for the Fourth Circuit Suzanne Bynum v. Cigna Healthcare of North Carolina, Incorporated

Filed: June 24, 2002
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-1705
(CA-00-3009)
Suzanne Bynum,
Plaintiff - Appellee,
versus
CIGNA Healthcare of North Carolina, Inc.,
Defendant - Appellant.
O R D E R
The court amends its opinion filed April 19, 2002, as follows:
On page 4, first paragraph, line 2 -- the reference to
“U.S.C.S.” is corrected to read “U.S.C.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk

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PUBLISHED PUBLISHED PUBLISHED PUBLISHED
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT
SUZANNE BYNUM,
Plaintiff-Appellee,
v. No. 01-1705
CIGNA HEALTHCARE OF NORTH
CAROLINA, INCORPORATED,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
G. Ross Anderson, Jr., District Judge.
(CA-00-3009)
Argued: January 22, 2002
Decided: April 19, 2002
Before WILLIAMS and KING, Circuit Judges, and
Cynthia Holcomb HALL, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
____________________________________________________________
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Williams and Senior Judge Hall concurred.
____________________________________________________________
COUNSEL COUNSEL COUNSEL COUNSEL
ARGUED: ARGUED: ARGUED: ARGUED: Mark Stanton Thomas, MAUPIN, TAYLOR & ELLIS,
P.A., Raleigh, North Carolina, for Appellant. Robert Edward Hoskins,
FOSTER & FOSTER, L.L.P., Greenville, South Carolina, for Appel-

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lee. ON BRIEF: ON BRIEF: ON BRIEF: ON BRIEF: Joanne J. Lambert, MAUPIN, TAYLOR & ELLIS,
P.A., Raleigh, North Carolina, for Appellant.
____________________________________________________________
OPINION OPINION OPINION OPINION
KING, Circuit Judge:
Suzanne Bynum initiated this ERISA civil action in the District of
South Carolina against CIGNA Healthcare of North Carolina, Incor-
porated ("CIGNA"), maintaining that CIGNA had improperly denied
her infant daughter's claim for health benefits for treatment of a skull
deformity. The district court reversed CIGNA's decision and awarded
the benefits sought by Ms. Bynum's daughter. CIGNA has appealed
the court's ruling, maintaining that its denial of benefits was appropri-
ate. As explained below, we agree that Ms. Bynum's infant daughter,
Katrina, was entitled to coverage from CIGNA for treatment of her
misshapen head, and we affirm.
I.
A.
Katrina Bynum, along with her twin sister, was born to Ms. Bynum
in late 1999 by spontaneous vaginal delivery after a thirty-nine week
gestation period. At her birth, Katrina exhibited symptoms of congen-
ital torticollis, i.e., a severely twisted neck, 1111 which subsequently
resulted in plagiocephaly, i.e., an abnormally asymmetrical head. 2222 In
May 2000, concerned about her nine-month old daughter's medical
condition and desiring to obtain treatment for it, Ms. Bynum sought
____________________________________________________________
1111 Congenital torticollis is a birth defect involving a severely twisted
neck and is typically "due to injury to the sternocleidomastoid muscle on
one side at the time of birth and its transformation into a fibrous cord
which cannot lengthen with the growing neck."
Dorland's Illustrated
Medical Dictionary 1723 (28th ed. 1994).
2222 Plagiocephaly has been medically defined as "an unsymmetrical and
twisted condition of the head, resulting from irregular closure of the cra-
nial sutures."
Dorland's Illustrated Medical Dictionary 1299.
2

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medical care for Katrina from a pediatrician in Matthews, North Car-
olina. This pediatrician, Dr. Michelle Parish, referred Katrina to a spe-
cialist in neurosurgery, and, at the direction of Dr. C. Scott
McLanahan, a pediatric neurosurgeon practicing in Charlotte, North
Carolina, Katrina's condition was treated with a medical procedure
known as "cranial banding" or "dynamic orthotic cranioplasty" (the
"DOC Procedure").
The DOC Procedure, which costs approximately $3,000, involved
creating a custom-molded orthotic device to be worn by Katrina in
order to progressively mold and correct the shape of her cranium. 3333
The purpose of the DOC Procedure, as described by Dr. McLanahan,
was to treat immediately the functional significance of Katrina's
asymmetrical skull because "head shape abnormalities or asymmetry
of the skull base can lead to further deformities or physical impair-
ments of the facial region, such as malocclusion of the mandible." 4444
B.
In May 2000, Dr. McLanahan submitted to CIGNA a coverage
request for the DOC Procedure utilized to treat Katrina's condition
("Katrina's Claim"). Katrina was an insured of CIGNA through insur-
ance coverage provided to her mother, an employee of an entity called
Pathways for Learning in Charlotte, North Carolina. Ms. Bynum pos-
sessed health insurance through her employer-sponsored health plan,
____________________________________________________________
3333 The administrative record does not reflect the specific treatment pro-
tocol prescribed for Katrina. Generally, a DOC Procedure involves wear-
ing the custom-molded orthotic device twenty-three hours per day, with
the infant's progress being followed weekly so that any necessary
modifications can be made to the orthotic device. The average treatment
time is four months.
Dynamic Orthotic Cranioplasty,
at
http://www.cranialtherapies.com (last visited March 19, 2002).
4444 Malocclusion of the mandible is a serious condition affecting the
teeth, jaw, and facial structure. It involves the malposition of teeth,
which results in pain, degeneration, and jaw clicking. If left untreated,
malocclusion of the mandible can also affect a person's ability to eat,
speak, and maintain good oral hygiene.
See Dorland's Illustrated Medi-
cal Dictionary 982; World Craniofacial Foundation,
Deformities of the
Jaw,
at http://www.worldcf.org/jaw.html (last visited March 19, 2002).
3

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and her family's coverage is governed by the Employee Retirement
Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. CIGNA
serves the plan in two capacities: first, as its insurer, and second, as
its plan administrator. The member certificate (the "Plan") provided
to each of the Plan's insureds describes the insurance coverage and
benefits provided by CIGNA, and it also spells out the administrative
procedures under which the Plan operates. The Plan has established
a two-level administrative appeal and grievance process for the reso-
lution of claims and benefits questions, and it has granted CIGNA the
"final power and discretionary authority to interpret and administer
th[e] Member Certificate, including the authority to make eligibility
determinations."
Katrina's Claim was filed with CIGNA on May 16, 2000, and the
next day one of CIGNA's Medical Directors wrote Ms. Bynum a
denial letter, advising, after "careful review," that CIGNA had "deter-
mined that coverage is not available . . . because cosmetic services are
not covered." CIGNA's denial letter offered no explanation of what
constituted a cosmetic service, and the Plan contains no definition for
either the terms "cosmetic" or "cosmetic services."
Thereafter, pursuant to the procedures established in the Plan, Dr.
McLanahan filed with CIGNA, on behalf of Ms. Bynum and Katrina,
what the Plan denominates as a first-level appeal. In this first-level
appeal, CIGNA was requested to review and reconsider its earlier
decision to deny Katrina's Claim for the DOC Procedure. 5555 By letter
of May 26, 2000, Dr. McLanahan explained to CIGNA that children
suffering from nonsynostoic cranial asymmetries (such as that affect-
ing Katrina) benefit from DOC treatment. He also sought to directly
address the "cosmetic services" issue raised in the denial letter, and
he further advised CIGNA that "[c]orrection of [Katrina's] defect may
in fact lead to a more pleasant appearance, however,
it is the func-
tional significan[ce] of the defect that compels the treatment."
(emphasis added). In so concluding, he advised CIGNA, referring to
the DOC Procedure, that "
[i]t is clearly not treatment of a cosmetic
deformity." (emphasis added).
____________________________________________________________
5555 The Plan specifies that CIGNA's Member Services Department will
investigate first-level appeals, and that if the matter is "clinical" at least
one reviewer will be a medical doctor.
4

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CIGNA responded to Katrina's first-level appeal by advising Ms.
Bynum that it was denying coverage for Katrina's Claim. In explain-
ing its decision, CIGNA again maintained that use of the DOC Proce-
dure for nonsynostoic plagiocephaly is a "cosmetic procedure," and
it also asserted that "[t]he documentation fails to substantiate the med-
ical necessity for the [DOC] service." As in its initial denial of
Katrina's Claim, CIGNA offered no definition of what constituted a
"cosmetic procedure" under the Plan.
Thereafter, Ms. Bynum retained counsel on Katrina's behalf, and,
on July 25, 2000, she filed a second-level appeal with CIGNA.
CIGNA then requested production of additional materials or state-
ments that Ms. Bynum deemed relevant to Katrina's Claim, and it
advised Ms. Bynum that her second-level appeal would be heard and
considered by CIGNA's Grievance Committee (the "Committee" or
"CIGNA's Committee"). 6666
On August 30, 2000, Ms. Bynum provided CIGNA's Committee
with additional materials in support of Katrina's Claim. First, she sub-
mitted an affidavit from Dr. McLanahan in which he reiterated that
Katrina "suffers from a head shape abnormality related to intrauterine
molding and postnatal position" and that, in the opinion of a number
of plastic surgeons, "head shape abnormalities or asymmetry of the
skull base can lead to further deformities or physical impairments of
the facial region, such as malocclusion of the mandible." Dr. McLana-
han explained that the "true intent" of Katrina's DOC Procedure was
to "eliminate physical defects that might be associated with head
shape abnormalities such as `malocclusion of the mandible,'" and he
concluded that "to a reasonable degree of medical certainty, . . . the
DOC band, as used upon Katrina Bynum, was medically indicated
and was not cosmetic under the terms of the [P]lan." 7777
____________________________________________________________
6666 Three non-CIGNA employees, that is, Dr. James Lindermann, a
Board-Certified pediatrician, plus two employer plan benefit administra-
tors, comprised the Committee which heard Ms. Bynum's second-level
appeal. The Plan, in its section 13.3, provides for a second-level appeal
to be heard by such a Grievance Committee.
7777 In being "medically indicated," the DOC Procedure, as used upon
Katrina's misshapen head, was suggested by probable necessity.
See On-
5

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Second, Ms. Bynum provided CIGNA's Committee with a letter of
May 25, 2000, from Katrina's treating pediatrician, Dr. Parish. Dr.
Parish explained that Katrina suffered from congenital torticollis that
had been present at birth. Dr. Parish also advised CIGNA that she had
referred Katrina to a neurosurgeon who noted that Katrina had "flat-
tening of the right side of her head, right anterior ear shift, frontal
bossing right greater than left, [and] plagiocephaly." In conclusion,
Dr. Parish related "I believe [Katrina's] plagiocephaly is directly
related to her congenital torticollis . . . [and] therefore is a medical
condition not a cosmetic condition." 8888
Third, Ms. Bynum submitted to CIGNA's Committee a medical
article discussing the treatment of craniofacial asymmetry with the
DOC Procedure. Fourth, she provided CIGNA's Committee with a
copy of Resolution 119 of the American Medical Association House
of Delegates, which defines reconstructive surgery. Pursuant to the
AMA Resolution, reconstructive surgery is surgery that is "performed
on abnormal structures of the body, caused by congenital defects,
developmental abnormalities, . . . or disease. It is generally performed
to improve function, but may also be done to approximate a normal
appearance." Finally, Ms. Bynum provided the Committee with an
American Orthotic and Prosthetic Association Newsletter showing
that the DOC Procedure had gained FDA approval as an "approved
orthoses" for Katrina's condition. 9999
On August 30, 2000, the Committee convened to consider
____________________________________________________________
Line Medical Dictionary,
at htpp://cancerweb.ncl.ac.uk (last visited
March 19, 2002) (defining "indicate" as "demonstrat[ing] or suggest[ing]
the probable necessity or advisability");
see also Dorland's Illustrated
Medical Dictionary 835 (defining "indicate" as "a sign or circumstance
which points to or shows the cause, pathology, treatment or issue of an
attack of disease").
8888 The terminology "right anterior ear shift" refers to the right ear being
positioned closer to the face than the left ear, and "frontal bossing right
greater than left" means that the right side of the head protrudes outward
more than the left side.
9999 An "approved orthoses" is a medical device that the FDA has
approved for use in the treatment of specified conditions.
6

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Katrina's Claim. CIGNA representatives were present at the Commit-
tee's meeting, but Ms. Bynum and her attorney, though invited, did
not attend. 10101010 CIGNA's Committee then reviewed Katrina's Claim, the
information submitted to it by Ms. Bynum, and a so-called TEC
Assessment Report concerning the DOC Procedure submitted to it by
CIGNA. 11111111 By letter to Ms. Bynum of the following day, CIGNA
advised that its Committee had "decided to uphold the original deci-
sion to deny the Cranial Banding Device." This denial letter explained
that the Committee's decision was based on the "Section 5.0 (letter
M) Exclusion, [wherein] All Cosmetic procedures or surgery are con-
sidered non-covered. The documentation received fails to substantiate
the medical necessity for the service." 12121212 This letter, like the earlier
ones, made no effort to explain what CIGNA believed to constitute
"cosmetic" procedures or surgery.
C.
After exhausting her appeal rights under the Plan, Ms. Bynum, on
September 22, 2000, filed suit against CIGNA pursuant to 29 U.S.C.
§ 1132(a). 13131313 She alleged, inter alia, that the Plan provided coverage
____________________________________________________________
10101010 The administrative record does not indicate why Ms. Bynum or her
lawyer did not attend the Committee meeting.
11111111 In general, TEC Assessment Reports are communications dissemi-
nated by the BlueCross BlueShield Association which advise regional
Blue Cross and Blue Shield insurers whether a treatment meets the cov-
erage criteria (called the TEC criteria) established in Blue Cross and
Blue Shield insurance polices. In this case, the TEC Assessment Report
involved the DOC Procedure, and it concluded that the procedure failed
to meet the Blue Cross and Blue Shield TEC criteria. Thus, because
CIGNA's coverage criteria are similar to such TEC criteria, CIGNA
likely provided the Committee with the TEC Assessment Report in sup-
port of its contention that the DOC Procedure did not conform to
CIGNA's coverage criteria.
12121212 CIGNA's reference to the Section 5.0 (letter M) Exclusion is in error;
this particular exclusion refers to "[d]iagnosis or treatment of infertility."
In fairness to CIGNA, it likely intended to reference the Section 5.0 (let-
ter L) Exclusion, which refers to "all cosmetic procedures or surgery." As
such, we will treat the denial of Katrina's Claim by CIGNA's Committee
as being premised on the Section 5.0 (letter L) Exclusion.
13131313 Section 1132 of Title 29 of the United States Code provides, in rele-
vant part, that "[a] civil action may be brought . . . by a participant or
beneficiary . . . to recover benefits due to him under the terms of his
plan."
7

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for the DOC Procedure, and she sought to have the court direct
CIGNA to provide coverage for Katrina's Claim.
On April 12, 2001, with cross motions for summary judgment
pending, the parties appeared before the district court. For whatever
reasons, both parties then requested the court to dispense with the
summary judgment proceedings and to try the case on its merits. With
the consent of the parties, the court then proceeded to handle the case
as a bench trial. 14141414 On May 9, 2001, the court ruled on the merits of
the case, and it determined that the Plan provided coverage for
Katrina's Claim.
Bynum v. CIGNA Healthcare of North Carolina,
Inc., Order, C/A No.: 6:00-3009-13 at 14-16 (D.S.C. May 11, 2001)
(the "Opinion"). The court then ordered CIGNA to provide coverage
to Katrina for the benefits sought.
Id. at 15-16.
On May 16, 2001, CIGNA filed a timely notice of appeal. We pos-
sess jurisdiction pursuant to 28 U.S.C. § 1291.
II.
A.
Before turning to the merits of CIGNA's appeal, we must first
address and determine the applicable standards of our review of the
issues raised here. Generally, decisions made by administrators of
ERISA plans are subject to de novo review by the courts.
Firestone
Tire & Rubber Co. v. Burch, 489 U.S. 101, 115 (1989);
see also
Bedrick v. Travelers Ins. Co., 93 F.3d 149, 152 (4th Cir. 1996).
When, however, an ERISA plan provides the plan administrator with
discretionary authority to interpret the terms of the plan and to make
coverage determinations, the administrator's decisions are reviewed
by the courts only for abuse of discretion.
Firestone, 489 U.S. at 115;
____________________________________________________________
14141414 While the parties' agreement to waive the summary judgment stan-
dards and submit their case to the district court on its merits seems to be
unique, the ERISA statute does not preclude such an agreement.
See Tes-
ter v. Reliance Standard Life Ins. Co., 228 F.3d 372, 374, 377 (4th Cir.
2000) (affirming decision of district court after bench trial to award ben-
efits to insured under ERISA plan because plan's term was vague and
ambiguous).
8

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Bedrick, 93 F.3d at 152. Even if a plan administrator possesses such
discretion, if it also operates under a conflict of interest, we have rec-
ognized the propriety of reviewing courts "not act[ing] as deferen-
tially as would otherwise be appropriate."
Bedrick, 93 F.3d at 152.
Indeed, the greater the "incentive for the [plan] administrator . . . to
benefit itself by a certain interpretation of benefit eligibility or other
plan terms, the more objectively reasonable the administrator['s]
. . . decision must be and the more substantial the evidence must be
to support it."
Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 234 (4th Cir.
1997).
These standards of review apply to a district court's review of a
plan administrator's coverage determinations in an ERISA case, and
they also are applicable on appellate review. In our review of the
result of a bench trial, where the district court has made findings and
reviewed coverage determinations under the proper standard of
review, we do not sit in the same posture as that court. Our review
is affected by the principle that when we review a district court's
decision on the merits,
see Fed. R. Civ. P. 52(a), we are, absent clear
error, bound by its factual findings.
See id. (requiring that findings of
fact made after a bench trial "shall not be set aside unless clearly erro-
neous");
Sedlack v. Braswell Servs. Group, Inc., 134 F.3d 219, 223
(4th Cir. 1998);
Hendricks v. Cent. Reserve Life Ins. Co., 39 F.3d 507,
512-13 (4th Cir. 1994). In this case, however, we are unable to ascer-
tain whether the district court actually applied the abuse of discretion
standard of review when reciting its findings. As a result, we conduct
our appellate review of the objective reasonableness of CIGNA's
denial of Katrina's Claim without relying on the district court's find-
ings.
B.
The Plan provides CIGNA, as the Plan Administrator, with "final
and discretionary authority to interpret and administer th[e] Member
Certificate, including the authority to make eligibility determina-
tions." Accordingly, we may not disturb a coverage determination
made by CIGNA in its capacity as the Plan Administrator, so long as
its decision is reasonable. If, however, a coverage decision is unrea-
sonable, then CIGNA has abused its discretion, and such an abuse
warrants reversal of an affected coverage determination.
See Booth v.
9

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Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan, 201 F.3d 335,
342 (4th Cir. 2000);
see also Feder v. Paul Revere Life Ins. Co., 228
F.3d 518, 522 (4th Cir. 2000).
In this case, CIGNA performed its duties as Plan Administrator
under a plain conflict of interest; that is, CIGNA administered the
Plan and at the same time insured it. As such, while the abuse of dis-
cretion standard remains applicable to CIGNA's coverage determina-
tion, we must, because of its conflict of interest, "lessen the deference
normally given under this standard of review . . . to the extent neces-
sary to counteract any influence unduly resulting from the conflict."
Ellis, 126 F.3d at 233;
see also Bailey v. Blue Cross & Blue Shield
of VA, 67 F.3d 53, 56 (4th Cir. 1995) (reducing deference "to the
degree necessary to neutralize any untoward influence resulting from
the conflict" of interest).
CIGNA's conflict of interest in its handling of Katrina's Claim was
a substantial one, i.e., CIGNA possessed a significant incentive, in the
nature of its financial self-interest, to deny coverage for Katrina's
Claim. First of all, CIGNA was interpreting a disputed plan term —
— the term "cosmetic" —— with wide applicability. Because cos-
metic procedures are excluded from the Plan's coverage under Sec-
tion 5.0 (letter L), CIGNA possessed a financial self-interest in
defining "cosmetic" in a broad manner. Moreover, as CIGNA's coun-
sel acknowledged at oral argument, CIGNA is presently facing an
increasing number of benefit claims for DOC Procedures, because the
number of infants with asymmetrical skulls is increasing due to cur-
rent trends in post-natal positioning. 15151515 Thus, a decision by CIGNA, as
Plan Administrator, to provide coverage for Katrina's Claim would
have established a precedent adverse to the long-term financial inter-
ests of CIGNA, as insurer. Because CIGNA's conflict of interest on
this issue is a significant one, we are obliged to reduce the level of
deference normally accorded its coverage determinations, and we
must ascertain whether its decision to deny Katrina's Claim was
____________________________________________________________
15151515 Some parents apparently are advised to place infants on their backs
to prevent the occurrence of sudden infant death syndrome.
See
SIDS Alliance,
Positional Plagiocephaly, or"flat heads",
at
http://www.sidsalliance.org (last visited March 19, 2002). Katrina's skull
deformity, however, is related to her birth defect.
See infra at 14.
10

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objectively reasonable. Therefore, while we will accord CIGNA's
coverage determination some deference, its decision must be exam-
ined closely to ensure that it is "supported by substantial evidence,"
and that it resulted from "a deliberate, principled reasoning process."
Brogan v. Holland, 105 F.3d 158, 161 (4th Cir. 1997) (internal cita-
tions and quotations omitted) (explaining criteria for objectively rea-
sonable).
III.
On appeal, CIGNA maintains that the district court erred by substi-
tuting its judgment for CIGNA's reasoned decision, as Plan Adminis-
trator, to deny Katrina's Claim. CIGNA makes two contentions in this
regard: first, it asserts that the court improperly defined the applicable
terms of the Plan; and second, it maintains that the court misapplied
the terms of the Plan. We examine each of these points in turn.
A.
A significant question in this case concerns the proper meaning to
be accorded the word "cosmetic," as it is utilized in the Plan. CIGNA
contends that the court erred in its definition and application of the
term. Specifically, although the parties agree that the Plan does not
define "cosmetic," CIGNA maintains that the court erred by not
adopting CIGNA's proposed definition of "cosmetic," and by instead
"find[ing] that the treatment rendered to . . . [Katrina] could not be
considered `cosmetic' under any reasonable definition of the word."
Opinion at 15.
1.
CIGNA first maintains that the court erred by failing to give proper
deference to its proposed definition of "cosmetic." While CIGNA is
correct that, as Plan Administrator, its definition must be accepted by
a court absent an abuse of discretion,
Sheppard & Enoch Pratt Hosp.,
Inc. v. Travelers Ins. Co., 32 F.3d 120, 123-24 (4th Cir. 1994),
CIGNA nonetheless abused its discretion by failing to define this cru-
cial term prior to its denial of Katrina's Claim.
11

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Throughout its administrative handling of Katrina's Claim, CIGNA
failed to define the relevant terms "cosmetic," "cosmetic services," or
"cosmetic procedures." Instead, it simply advised Ms. Bynum that
Katrina's Claim had been denied because the DOC Procedure was of
a "cosmetic nature." In addition, the record before CIGNA's Commit-
tee lacked any reference to CIGNA's definition of "cosmetic," and
CIGNA failed to document why the DOC Procedure, as applied to
Katrina's skull deformity, constituted an excluded cosmetic proce-
dure. Because there is no evidence that CIGNA sought to define "cos-
metic" before being sued by Ms. Bynum, or that CIGNA applied a
reasonable definition of the term to Katrina's Claim, the court did not
err in declining to defer to CIGNA's after-the-fact definition of "cos-
metic."
See id. at 125 (assessing reasonableness of plan administra-
tor's decision based only on facts known at time of decision).
2.
Next, CIGNA maintains that the court erred in concluding that
"cosmetic" is an ambiguous term, and that it also erred by not afford-
ing the term its ordinary meaning. When interpreting an ERISA
health insurance plan, we utilize and apply ordinary principles of con-
tract law, and we "enforc[e] the plan's plain language in its ordinary
sense."
Wheeler v. Dynamic Eng'g, Inc., 62 F.3d 634, 638 (4th Cir.
1995) (internal citations omitted). When, however, a term used in a
plan is ambiguous, that ambiguity is construed against the drafter of
the plan, and it is construed in accordance with the reasonable expec-
tations of the insured.
Id. (citing
Saltarelli v. Bob Baker Group Med.
Trust, 35 F.3d 382, 386 (9th Cir. 1994)).
We agree with the district court that the term "cosmetic," as used
in the Plan, is ambiguous. The Plan makes no effort to define the
term, even though multiple definitions exist, both in common usage
and in the medical context. From our review, the various definitions
of "cosmetic" are generally placed into two categories. First, certain
definitions of "cosmetic" limit the term's application to procedures,
products, or services that affect appearance only, or which are per-
formed for a purely superficial benefit.
See, e.g.,
Dorland's Illustrated
Medical Dictionary 385;
Oxford English Dictionary Online,
at
http.//www.OED.org (last visited March 19, 2002). Second, other def-
initions of "cosmetic" apply the term more broadly, and such defini-
12

-- 13 of 16 --

tions utilize it to include procedures, products, or services intended to
correct physical defects, usually by surgical means.
Dorland's Illus-
trated Medical Dictionary 385.
In these circumstances, both categories of definitions of "cosmetic"
are reasonable, and each could be utilized in a manner consistent with
the term's ordinary meaning. Thus, applying the doctrine of
contra
proferentum, we must construe any ambiguity in a term's ordinary
meaning against CIGNA, and in accordance with the insured's expec-
tations, i.e., those of Ms. Bynum and Katrina.
See, e.g.,
Tester v. Reli-
ance Standard Life Ins. Co., 228 F.3d 372, 375 (4th Cir. 2000)
(applying doctrine of
contra proferentum in ERISA context);
Bailey
v. Blue Cross & Blue Shield of VA, 67 F.3d 53, 57 (4th Cir. 1995)
(same). In so doing, we must utilize the more narrow of the defini-
tions of "cosmetic," limiting the term to those procedures, products,
or services that affect appearance only, or which are performed for a
purely superficial benefit. Because the definition of "cosmetic" used
by the district court comports with the definition we apply, CIGNA's
assignment of error in this regard lacks merit.
B.
Having resolved the ambiguity issue relating to the term "cos-
metic," we turn to CIGNA's two specific bases for denying Katrina's
Claim for treatment of her misshapen skull. First, CIGNA maintains
that Katrina's DOC Procedure was a cosmetic one, and that it was
therefore excluded from coverage under the Plan. Second, CIGNA
contends that Ms. Bynum failed to provide sufficient documentation
to establish that Katrina's DOC Procedure was medically necessary.
1.
CIGNA maintains that its denial of Katrina's Claim was proper
because the DOC Procedure was cosmetic. As explained
supra, the
term "cosmetic," as used in the Plan, is limited to procedures, prod-
ucts, or services that affect appearance only, or which are performed
for a purely superficial benefit. Because Katrina's DOC Procedure
was not utilized for the sole purpose of providing her with an aestheti-
cally pleasing, symmetrical head shape, the treatment was not "cos-
metic." Instead, her DOC Procedure constituted treatment for a
13

-- 14 of 16 --

congenital birth defect and its related symptoms, with the added hope
that it might prevent the onset of serious abnormalities often associ-
ated with her birth defect, such as malocclusion of the mandible.
Accordingly, CIGNA's determination that the DOC Procedure was
"cosmetic" was objectively unreasonable and not supported by sub-
stantial evidence.
See Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 234
(4th Cir. 1997).
2.
Nonetheless, CIGNA argues that, even if Katrina's DOC Procedure
was not "cosmetic," it had no obligation to provide coverage for her
treatment because the documentation submitted by Ms. Bynum failed
to establish the medical necessity of the DOC Procedure. More spe-
cifically, CIGNA asserts that Katrina's DOC Procedure was not medi-
cally necessary because it was neither "[n]ecessary for" nor
"[p]rovided for the . . . treatment, cure or relief of a Medical Condi-
tion, illness, injury or disease," as required by the Plan. 16161616
We cannot agree. The uncontradicted evidence shows that the "the
DOC band, as used upon Katrina Bynum, was medically indicated,"
meaning that, in Katrina's circumstances, the DOC Procedure was
treatment for the misshapen skull attributable to her birth defect. The
documentation that Ms. Bynum submitted in support of Katrina's
Claim further established the medical necessity of the DOC Proce-
dure. For example, both of Katrina's treating physicians, a pediatri-
cian and a pediatric neurosurgeon, opined that Katrina's asymmetrical
head shape was a medical condition requiring treatment. And the
uncontradicted medical evidence indicates that the appropriate treat-
ment for Katrina's medical condition was the DOC Procedure.
In light of the uncontradicted medical evidence, CIGNA's conten-
tion that Katrina's DOC Procedure was not medically necessary fails
to meet the two-pronged test of
Brogan, i.e., it is neither "supported
by substantial evidence" nor the result of "a deliberate, principled rea-
soning process."
Brogan v. Holland, 105 F.3d 158, 161 (4th Cir.
1997) (internal citations and quotations omitted). As such, CIGNA's
____________________________________________________________
16161616 The Plan defines a Medical Condition as "[a] disease, illness or
injury."
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denial of Katrina's Claim was not "objectively reasonable," and the
Plan must provide coverage for Katrina's Claim.
3.
Finally, CIGNA's rejection of coverage for Katrina's Claim,
whether based on the lack of medical necessity, or on its being an
excluded "cosmetic" procedure, was not objectively reasonable,
thereby constituting an abuse of discretion. As we have observed, an
abuse of discretion occurs when a reviewing court possesses a "defi-
nite and firm conviction that . . . a clear error of judgment" has
occurred "upon weighing of the relevant factors."
Westberry v. Gis-
laved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999);
see also United
States v. General, 278 F.3d 389, 396 (4th Cir. 2002) (observing abuse
of discretion occurs when discretion exercised arbitrarily or capri-
ciously, considering law and facts). In this instance, we are left with
the definite and firm conviction that CIGNA committed a clear error
of judgment, and it thereby abused its discretion.
IV.
For the foregoing reasons, we affirm the decision of the district
court that Katrina's Claim is covered under the Plan.
AFFIRMED
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