Helena Barinova v. Ing

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4189
HELENA BARINOVA,
Appellant
v.
ING; RELIASTAR LIFE INSURANCE COMPANY
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2-07-cv-01085)
District Judge: Honorable Dickinson R. Debevoise
Submitted Under Third Circuit LAR 34.1(a)
January 14, 2010
Before: AMBRO, CHAGARES, and STAPLETON, Circuit Judges
(Opinion filed: February 4, 2010 )
OPINION
AMBRO, Circuit Judge
Helena Barinova brought an action against ING Financial Services (“ING”) and
ReliaStar Life Insurance (“ReliaStar”) under the Employee Retirement Income Security

-- 1 of 11 --

ING offers employee benefits products and services to companies through ReliaStar,1
its affiliate.
2
Act (“ERISA”). See 29 U.S.C. § 1132(a)(1)(B). She alleged that ReliaStar improperly1
denied her claim for long-term disability benefits. The District Court granted the
defendants’ motion for summary judgement. We affirm.
I.
As part of its employee welfare plan, Croda, Inc. (“Croda”) secured a group long-
term disability insurance policy (the “Policy”) from ReliaStar. As the insurance carrier,
ReliaStar both funds the Policy and adjudicates related claims. Importantly, in this role it
has “final discretionary authority to determine all questions of eligibility and status and to
interpret and construe the terms of this policy[] of insurance.” App. 585.
Under the Policy, employees who become disabled are eligible for monthly
payments, subject to certain requirements. Claimants must “be insured on the date [they]
become disabled”—and, to continue to qualify as “insured” before then, they must remain
“actively at work.” App. 578. As defined by the Policy, a claimant is “actively at work”
when she is “physically present at . . . her customary place of employment with the intent
and ability of working the scheduled hours and doing the normal duties of . . . her job on
that day.” App. 582. Policy coverage ends when the employee is “no longer actively at
work for the Policyholder.” App. 577. The only relevant exception to this “actively at
work” requirement is for employees on leave under the Family and Medical Leave Act

-- 2 of 11 --

The Policy provides for the following:2
Certain employers are subject to the FMLA. If you have a leave from
active work certified by your employer, then for purposes of eligibility and
termination of coverage you will be considered to be actively at work. Your
coverage will remain in force so long as you continue to meet the
requirements as set forth in the FMLA.
App. 577.
FMLA provides medical leave for up to twelve weeks for qualifying diseases.3
3
(“FMLA”).2
Finally, eligibility under the Policy is limited to disabled employees who are
receiving “regular and appropriate care.” App. 578. For care to qualify as “regular and
appropriate,” the employee must “personally visit a doctor as often as is medically
required,” as well as “receiv[e] care which conforms with generally accepted medical
standards . . . and is consistent with the stated severity of [the employee’s] medical
condition.” App. 583.
II.
Barinova was initially hired by Croda as a research scientist in March 1992. By
2004, she worked as a research and development manager. On May 4, 2004, Croda
placed Barinova on administrative leave for “alleged insubordination and disregard of
company policy.” App. 106. She remained on leave until she was terminated.
On May 17, 2004, Barinova visited a psychiatrist. During this visit, the
psychiatrist completed an FMLA application for Barinova, asserting that she had a3

-- 3 of 11 --

The psychiatrist was unable to locate Barinova’s treatment records during this period.4
There is confusion in the record over Barinova’s precise termination date.5
4
“major depressive disorder” that required weekly treatment. App. 666. Croda accepted
Barinova’s application, and her FMLA leave began thereafter. On August 18, 2004,
Barinova brought an action against Croda, alleging that she was placed on administrative
leave in retaliation for raising asbestos-related health and safety concerns.
Barinova’s twelve weeks of FMLA leave expired on September 1, 2004. During
her leave, Barinova’s treatment was limited to a few follow-up conversations with her
psychiatrist (mostly by phone), as well as prescriptions for related medication. On4
October 20, 2004, Barinova began more extensive treatment with a different pychiatrist.
Finally, by December 31, 2004, Barinova was terminated. On January 20, 2005,5
Barinova filed a claim for long-term disability benefits under the Policy. ReliaStar denied
her claim. Under the relevant Policy language, ReliaStar concluded that Barinova was: 1)
“actively at work,” but not receiving “regular and appropriate care” during her FMLA
leave (prior to September 1, 2004); 2) neither “actively at work” nor receiving “regular
and appropriate care” between September 1, 2004 and October 20, 2004; and 3) receiving
“regular and appropriate care,” but not “actively at work,” after October 20, 2004. As a
result, ReliaStar concluded that Barinova never became eligible for long-term disability
benefits under the Policy.

-- 4 of 11 --

5
III.
In May 2005, Barinova appealed ReliaStar’s initial determination to its Appeals
Committee. She submitted a letter from her psychiatrist stating that she was disabled by
the time he evaluated her in October 2004, and she was likely disabled prior to then.
ReliaStar used an outside, board-certified psychiatrist to review Barinova’s file. This
psychiatrist concluded that Barinova had not received “regular and appropriate care” for
her depression before September 1, 2004.
In the end, the Committee “reviewed [Barinova’s] adverse claim decision, in its
entirety, giving no deference to the previous decision,” and denied her appeal. App. 138.
In March 2006, Barinova asked the Appeals Committee to reconsider its decision, but it
declined. Barinova then brought the current ERISA action against ING and ReliaStar in
federal court.
Before the District Court, Barinova argued: 1) that she was “actively at work” until
she was terminated in December 2004; 2) that it was undisputed that she was receiving
“regular and appropriate care” by October 20, 2004; and 3) that there was an issue of
triable fact as to whether she was receiving “regular and appropriate care” before then. In
granting the defendants’ motion for summary judgment, the District Court upheld
ReliaStar’s determination as reasonable and “entitled to deference.” App. 12. In
particular, the Court “accept[ed] ReliaStar’s determinations that Barinova was no longer
‘actively at work’ as of September 1, 2004, and was not under the regular and appropriate

-- 5 of 11 --

6
care of a physician prior to October 20, 2004.” Id. Though it now appears that the
District Court did not apply the correct standard of review, we nonetheless affirm its
judgment.
The Court did not have the benefit of the Supreme Court’s decision in
Metropolitan Life Insurance Co. v. Glenn, 128 S. Ct. 2343, 2346 (2008), which clarified
the standard of review that should be applied in similar contexts. As we explained in
Doroshow, however, “[b]ecause the District Court applied [a] review standard [that] was
more favorable to [the appellant] than the new standard, we find no prejudice in our
considering [the appellant’s appeal] using the Glenn standard without remanding.”
Doroshow v. Hartford Life & Accident Ins. Co., 574 F.3d 230, 234 n.1 (3d Cir. 2009).
IV.
The District Court had jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C.
§ 1132(e)(1) and (f). We have jurisdiction over this appeal under 28 U.S.C. § 1291. We
“exercise plenary review over the District Court’s decision to grant summary judgment.”
Doroshow, 574 F.3d at 233. “Summary judgment is appropriate when the ‘pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)).
V.
“[ERISA] permits a person denied benefits under an employee benefit plan to

-- 6 of 11 --

7
challenge that denial in federal court.” Glenn, 128 S. Ct. at 2346. “Principles of trust law
require courts to review [such a denial] ‘under a de novo standard’ unless the plan
provides to the contrary.” Id. at 2348 (quoting Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 115 (1989)). “Where the plan . . . grant[s] ‘the administrator or fiduciary
discretionary authority to determine eligibility for benefits, trust principles make a
deferential standard of review appropriate.’” Id. (quoting Firestone, 489 U.S. at 111)
(internal citations omitted) (emphases in original). ReliaStar was granted such
“discretionary authority” in this case.
Nevertheless, “[o]ften the [adjudicatory] entity . . . both determines whether an
employee is eligible for benefits and pays benefits out of its own pocket.” Id. at 2346.
“[T]his dual role creates a conflict of interest.” Id. However, we “continue to apply a
deferential abuse-of-discretion standard of review in cases where a conflict of interest is
present.” Schwing v. Lilly Health Plan, 562 F.3d 522, 525 (3d Cir. 2009). In these
situations, we “take the conflict into account not in formulating the standard of review,
but in determining whether the administrator or fiduciary abused its discretion.” Id.; see
also Doroshow, 574 F.3d at 234 (rejecting our prior “sliding scale” approach and
applying Glenn by noting that “a reviewing court should consider the conflict of
interest—but only as one consideration among many”).
In this case, ReliaStar was the insurance carrier. In that capacity, it “both
determine[d] whether an employee [wa]s eligible for benefits and pa[id] benefits out of its

-- 7 of 11 --

Barinova urges us also to consider her ongoing disagreements with Croda (including6
related litigation) while reviewing ReliaStar’s denial of her disability claim. We agree to
keep these disputes in mind; however, her complaints with Croda are not directly
connected to ReliaStar. Rather, they are implicated only insofar as they relate to any
information about Barinova provided by Croda to aid ReliaStar in its eligibility
determination. Furthermore, we remain mindful that Barinova provided her version of
events to ReliaStar (and to the District Court). See, e.g., App. 129-31 (recounting
Barinova’s version of events to ReliaStar); see also App. 177-81 (providing Dr. Grigory
Rasin’s account of Barinova’s history with Croda). Both ReliaStar and the District Court
thus were able to take both versions of events into account when reaching their
conclusions.
8
own pocket.” Glenn, 128 S. Ct. at 2346. Therefore, ReliaStar had an incentive to deny
benefits in certain cases to save itself money. We keep this conflict of interest in mind, as
we evaluate ReliaStar’s eligibility determination for abuse of discretion. Nevertheless,6
each of Barinova’s arguments fail.
First, Barinova argues that she remained “actively at work” until she was
terminated in December 2004—in other words, while she was on administrative leave.
She reasons that, even while on leave, she received both salary and related benefits.
Furthermore, she had not yet been formally terminated by Croda. Given this status, she
concludes that she should have qualified as “actively at work” under the Policy during
this period, and therefore been eligible for long-term disability benefits.
Barinova’s interpretation of the “actively at work” requirement is plausible;
however, given the text of the Plan, it was not an abuse of discretion for ReliaStar to
reject it. In its determination, ReliaStar interpreted “actively at work” to mean actually
present at work or on FMLA leave—therefore, excluding employees on administrative

-- 8 of 11 --

Barinova’s other “actively at work” arguments are similarly unavailing. First, she7
argues that the “actively at work” requirement does not apply to her because an internal
company document stated that she was eligible for benefits until November 12, 2004.
She is mistaken. Instead, we agree with the District Court, which concluded that “it is not
clear that the [relevant] document says anything at all about her eligibility.” App. 16.
Furthermore, such pre-printed, standard documents do not bind ReliaStar when it
exercises its discretionary authority to interpret the Policy and make eligibility
determinations—especially in cases (such as this one) where the document at issue is
ambiguous (at best).
Second, Barinova argues that she was eligible for benefits under the “Continuity of
Coverage” provision of the Policy. See App. 166-67. Again we disagree. This provision
waived the “actively at work” requirement for employees not “actively at work” on the
Policy’s “effective date.” App. 166. However, it does not apply to Barinova’s situation,
as she was “actively at work” on that date. Instead, it applies to transitional situations,
where the company is changing from one plan to another. It is included to protect
employees who were not “actively at work” (for whatever reason) on the “effective date”
of the new policy.
9
leave (such as Barinova). To repeat, the Policy defines “actively at work” as “physically
present at . . . [one’s] customary place of employment with the intent and ability of
working the scheduled hours and doing the normal duties of . . . [one’s] job on that day.”
App. 582. The only relevant exception to this requirement is for employees on FMLA
leave. We conclude that ReliaStar’s interpretation of the “actively at work” requirement
is consistent with the Policy’s terms, and therefore not an abuse of discretion. Given7
ReliaStar’s interpretation, Barinova could not qualify as “actively at work” once her
FMLA leave ended—from September 1, 2004, onward—since she remained on
administrative leave until she was terminated. While Barinova satisfied the other
eligibility requirements by October 20, 2004, she was no longer “actively at work” by
then (and, therefore, not entitled to benefits under the Policy).

-- 9 of 11 --

10
Second, Barinova argues that, even if she were not “actively at work” after
September 1, 2004, there is a triable issue of fact whether she began receiving “regular
and appropriate care” before September 1, 2004. Therefore, summary judgment was
inappropriate. We also disagree.
When making its eligibility determination, ReliaStar undertook an independent
review of Barinova’s medical records, with the aid of an outside, board-certified
psychiatrist. This psychiatrist explained that “regular and appropriate care” for someone
with Barinova’s condition “would include intensive psychotherapy . . . on, at least, a
weekly basis by a doctoral level therapist,” and (in a severe case) “a consideration of
participation in a partial hospitalization program, intensive outpatient treatment, [and]
cognitive/behavioral treatment, as well as medication.” App. 521.
In the end, ReliaStar concluded that Barinova had offered little evidence that she
received such care between May 17, 2004 and October 20, 2004. As the District Court
further noted, Barinova conceded that “after her initial consultation with [her doctor in
May 2004], she only received ‘occasional counseling on a few occasions, kept in contact
via phone[,] and [was] prescribed anti-anxiety and anti-depressive medications’ [during
this period].” App. 17.
In this context, we hold that ReliaStar did not abuse its discretion in concluding
that Barinova failed to receive “regular and appropriate care” prior to October 20, 2004.
Although she offered some evidence of the severity of her condition during this period,

-- 10 of 11 --

11
she presented little evidence to support her argument that the care she received at that
time was “regular and appropriate.”
* * * * *
For the foregoing reasons, we affirm the judgment of the District Court.

-- 11 of 11 --