as it may relate to lack of good faith.
(13) The Board's utilization of an independent agency to determine good health does not create an internal inconsistency in the plan. Plaintiff cannot claim that the Board's interpretation was contrary to its plain meaning. Rather, the words "good health" are ambiguous and not susceptible to a clear-cut determination. In fact the plan grants the Board absolute discretion to determine what constitutes good health since an applicant must present evidence satisfactory to the Board of good health. Pension Plan at p. 24. Commensurate with absolute discretion the plan envisions that the Board may resort to other sources to ascertain good health, empowering it "to determine from time to time the tables and interest rates to be used in actuarial computations to be made for the purpose of lump-sum payments." Id. at p. 25.
(14) Plaintiff does not dispute the Board's discretion or the power to use an independent agency to determine good health. Rather plaintiff asserts that the determination was arbitrary and capricious because bladder carcinoma and diabetes are unrelated medical conditions. Therefore, according to plaintiff, the debit points assigned to each condition by Aetna cannot be combined to exceed 150 points. Plaintiff posits the issue as whether the action of defendant in combining the debit points of two unrelated medical problems was arbitrary and capricious. Plaintiff's Brief at 3. Supporting this contention are affidavits from two physicians indicating that the medical conditions are unrelated and thus it was improper to combine the debit points for each.
(15) Plaintiff's argument misses the mark. The pertinent inquiry is whether defendant's actions of utilizing an independent agency to define a term in the pension plan is arbitrary and capricious. Defendant sought the advice of a consultant which standardized the system for assessing the health risks involved with certain medical conditions, based on underwriting and mortality standards. Plaintiff would have this court act as an expert in the disciplines of medicine, underwriting, mortality rates and actuarial computations, contrary to the admonition that courts must avoid excessive interference with pension plan administration. See Miles v. New York State Teamsters Conference Pension and Retirement Fund Employee Pension Benefit Plan, 698 F.2d 593, 599 (2d Cir. 1983).
(16) The submission of affidavits by plaintiff creates no material issue of fact. It bears emphasizing that a trial court should not conduct de novo hearings relative to eligibility for benefits. Id. We hold that the actions of defendant in seeking an independent, expert consultant to define a term in a pension plan is not arbitrary and capricious.
(17) There are no relevant regulations or guide lines, formulated by appropriate administrative agencies, defining the term good health. That factor is not apposite here.
(18) Analyzing the final factor, namely, whether the factual background of the determination by the Board created an inference of lack of good faith, we are required to address the issues of uniformity of construction and unanticipated costs to the plan. The administrator and secretary of the Board have stated by affidavit that "the good health test was adopted in order to protect the plan assets and other plan participants from anti-selection against the plan and prevent a windfall to plan participants who were not in good health." Affidavit of David W. Kempken, Defendant's Exhibit A, p.2 para. 4. Unquestionably, the possible dissipation of assets with ensuing loss to participants is a sound basis for a fiduciary action. Fine v. Semet, 699 F.2d 1091, 1095 (11th Cir. 1983).
(19) Additionally, Mr. Kempken has stated that "the reason an independent agency was utilized was to establish a more consistent reviewing procedure," Kempken affidavit p.4 para. 10, because prior to utilizing Aetna as a reviewing agency, any disagreement between the corporate medical director and a claimant's personal physician was resolved by obtaining a mutually agreeable third physician. This third opinion as to good health was binding on the parties. Id. p. 3 P 9. However, the procedure became cumbersome and inefficient in light of the increase in lump-sum applications. From the period 1974 to December 31, 1980 only 38 applications were filed. In contrast, from the period January 1, 1981 to December 31, 1982, 2,692 applications were processed. Id. p. 3 P 5-7. We hold that an attempt to attain uniformity and consistency in a plan's review procedure does not constitute arbitrary and capricious action by a fiduciary.
(20) Finally we find that the standard of good health was uniformly applied to all participants of the plan. All appeals from the decision of the corporate medical director are now forwarded directly to Aetna. More importantly, since implementation of this review process, no applicant who received more than 150 debit points was deemed to be in good health. Kempken affidavit p.8 para. 33. The Board has treated Edward Czyz similar to any other participant who applied for a lump-sum payment. The motion of defendant for summary judgment will be granted. A written order will follow.
ORDER OF COURT
AND NOW, this 7th day of December 1983,
IT IS ORDERED that the motion of defendant for summary judgment be and hereby is granted.
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