United States Court of Appeals
` For the Eighth Circuit
`___________________________
`
`No. 20-1593
`___________________________
`
`Ronald Bernard
`
`lllllllllllllllllllllPlaintiff - Appellee
`
`v.
`
`Kansas City Life Insurance Company
`
`lllllllllllllllllllllDefendant - Appellant
` ____________
`
`Appeal from United States District Court
`for the Western District of Missouri - Jefferson City
` ____________
`
` Submitted: January 12, 2021
`Filed: April 5, 2021
`____________
`
`
`Before COLLOTON, WOLLMAN, and SHEPHERD, Circuit Judges.
`____________
`
`
`WOLLMAN, Circuit Judge.
`
`After admitting to using fentanyl at work, Ronald Bernard was terminated from
`his position as a certified nurse anesthetist at Mid-Missouri Anesthesiologists, Inc.
`(Mid-Missouri). Bernard thereafter submitted claims for short- and long-term
`disability benefits to Kansas City Life Insurance Co. (Kansas City Life), which had
`issued disability insurance policies to Mid-Missouri as part of its employee benefit
`
`

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`plan. Kansas City Life denied Bernard’s claims after concluding that he was not
`disabled under the terms of the policies.
`
`Bernard challenged the denial of benefits, bringing a civil action under section
`502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (ERISA), 29
`U.S.C. § 1132(a)(1)(B). Ruling on cross-motions for summary judgment, the district
`court1 concluded that Kansas City Life had abused its discretion in denying benefits.
`We affirm.
`
`Mid-Missouri hired Bernard in 1991. Bernard became addicted to fentanyl in
`approximately 2000 and sought in-patient treatment in 2001. Mid-Missouri placed
`him on probation for several years following treatment, during which Bernard was
`subject to regular drug tests. Mid-Missouri’s employment contract with Bernard
`reserved the right to require that he be tested for drugs and to terminate him if a test
`returned a positive result.
`
`After being released from probation and being drug-free for many years,
`Bernard began using fentanyl at work in 2015. He explained that he would use “the
`end of day drugs,” rather than destroying them. At the time, Bernard worked full time
`as a certified nurse anesthetist at an orthopedic surgery clinic, administering
`anesthesia to patients.2
`
`1The Honorable Nanette K. Laughrey, United States District Judge for the
`Western District of Missouri.
`
`2Mid-Missouri describes a certified nurse anesthetist’s occupation as follows,
`“Under general supervision, administers local, inhalation, intravenous, and other
`anesthetics during surgical or other medical procedures.” A certified nurse
`anesthetist’s work includes administering general anesthetics to render patients
`insensible to pain and taking “necessary remedial action to aspirate secretions from
`throat larynx and trachea.”
`
`-2-
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`On the morning of October 6, 2017, two nurses reported that Bernard had been
`using syringes and that they suspected that he was using drugs. Bernard was
`immediately removed from the operating room and taken to a drug-testing facility,
`where he provided a sample. After Bernard admitted that he had been using fentanyl
`at work, Mid-Missouri terminated his employment. His sample later tested positive
`for fentanyl.
`
`Bernard met with Paul Schoephoerster, M.D., on October 18, 2017. According
`to Dr. Schoephoerster’s notes, Bernard reported that he had resumed using fentanyl
`in 2015 and that he had acquired it “through [his] place of employment as [a] nurse
`anesthetist.” During a March 2017 appointment with Dr. Schoephoerster, however,
`Bernard had not disclosed that he had relapsed, claiming instead that he had not used
`intravenous drugs for more than ten years. Bernard began meeting with addiction
`specialist Patricia Altenburg, Ph.D., on October 30, 2017.
`
`Bernard submitted claims for short- and long-term disability benefits to Kansas
`City Life in late October 2017, submitting in support statements of disability from
`Drs. Schoephoerster and Altenburg. Dr. Schoephoerster stated that Bernard had
`suffered from narcotic addiction since 2000 and had relapsed in 2015. He opined that
`Bernard’s addiction and relapse rendered him unable to perform his duties as a
`certified nurse anesthetist and that his disability would continue indefinitely. Dr.
`Altenburg similarly stated that Bernard suffered from opioid abuse, with date of onset
`in 2000 and relapse in 2015. She opined that Bernard was unable to work and that
`his limitations were chronic.
`
`Mid-Missouri reported to Kansas City Life that it had been satisfied with
`Bernard’s work and did not know of his relapse until the date of his termination.
`Mid-Missouri’s report expressed frustration with Bernard, particularly in light of his
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`-3-
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`earlier drug abuse and probationary period, noting, “who knows when he started
`using [fentanyl] again.”
`
`To meet the insurance policies’ definition of disabled, an insured must be
`unable to perform all the material and substantial duties of the insured’s regular
`occupation due to sickness or injury. Kansas City Life determined that Bernard did
`not meet this definition prior to his termination, when his disability insurance
`coverage ended, and therefore was not eligible for benefits. As Kansas City Life
`explained in its denial of his claim for short-term disability benefits:
`
`You were capable of, and would have remained capable of, performing
`your regular occupation if you had not tested positive to the drug
`screening. (sic) Your drug use did not preclude your ability to perform
`your occupational duties. You ceased work because your employment
`was terminated. As such, you do not meet the [policy’s] definition of
`disability.
`
`In denying both claims, Kansas City Life noted that Bernard’s coverage under the
`policy had ended before he sought treatment for his addiction or was certified as
`disabled by Dr. Schoephoerster.
`
`Bernard filed administrative appeals with Kansas City Life in May and June
`2018. After completing additional review, Kansas City Life denied Bernard’s appeal
`from the denial of long-term disability benefits because “there is no indication he was
`impaired from functioning in his own occupation as of the time he tested positive for
`drug use and he was terminated from employment and his insurance coverage ended.”
`His appeal from the denial of short-term disability benefits was also denied. In a
`December 2018 letter to Bernard’s attorney regarding the final denial of benefits,
`Kansas City Life reiterated that Bernard’s self-report was the only evidence in support
`of his claim that he became disabled prior to October 6, 2017:
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`-4-
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`Your client was performing his own occupation satisfactorily until he
`was removed from the operating room due to suspected drug use for
`which he tested positive on his last day worked. He was not terminated
`due to work issues but rather due to his employer’s serious concern for
`the safety of the patients. As noted, your client’s employment contract
`indicates a positive drug test will result in termination of employment.
`In addition, your client was not treated for his addiction to fentanyl at
`the time he stopped working and treatment began after his insurance
`coverage was terminated. As a result, no benefits are payable on his
`claim.
`
`As set forth above, Bernard filed suit, alleging that Kansas City Life had erred
`in denying him short- and long-term disability benefits. The parties agreed that there
`were no factual disputes and that the lawsuit presented only questions of law. As
`recounted above, the district court granted summary judgment in favor of Bernard
`after determining that Kansas City Life had abused its discretion in denying Bernard
`benefits. In light of the undisputed facts that Bernard was addicted to fentanyl, that
`he had relapsed in 2015, and that he had regularly used fentanyl at work for the two
`years preceding his termination, the district court concluded, “No reasonable person
`could find that a nurse anesthetist so addicted to Fentanyl that he injects himself with
`drugs during the work day while his medical co-workers are nearby is capable of
`performing the duties of his job.” D. Ct. Order of Feb. 28, 2020, at 14. We review de
`novo the district court’s grant of summary judgment in favor of Bernard. Green v.
`Union Sec. Ins. Co., 646 F.3d 1042, 1050 (8th Cir. 2011).
`
`Bernard argues that the district court should have applied a de novo standard of
`review to Kansas City Life’s denial of benefits under the short- and long-term
`disability insurance policies, contending that the plan administrator was not granted
`discretionary authority. A district court reviews de novo a plan administrator’s denial
`of ERISA benefits, unless the plan gives the administrator “discretionary authority to
`determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire
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`-5-
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`& Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). If the plan gives discretionary
`authority, the district court reviews the administrator’s denial of ERISA benefits for
`abuse of discretion. Id. Because we conclude that Bernard is entitled to benefits
`under either standard, we will assume without deciding that the abuse of discretion
`standard of review applies to Kansas City Life’s denial of benefits.3
`
`Reviewing for abuse of discretion, we consider whether Kansas City Life’s
`decision to deny benefits is supported by substantial evidence, that is, “such relevant
`evidence as a reasonable mind might accept as adequate to support a conclusion.”
`King v. Hartford Life & Accident Ins. Co., 414 F.3d 994, 999 (8th Cir. 2005) (en
`banc) (quoting Donaho v. FMC Corp., 74 F.3d 894, 900 & n.10 (8th Cir. 1996)).
`Kansas City Life maintains that the record lacks any evidence that Bernard’s fentanyl
`use rendered him unable to perform the material and substantial duties of his
`occupation prior to his termination. It argues that Bernard had adequately performed
`the duties of a nurse anesthetist, even if he had done so under the influence of
`fentanyl.
`
`We conclude that Kansas City Life’s denial of benefits is not supported by
`substantial evidence. According to Kansas City Life’s final denial of benefits, Bernard
`was terminated due to his “employer’s serious concern for the safety of the
`patients”—that is, because Bernard could not safely administer anesthesia while under
`the influence of fentanyl. In deciding Bernard’s claim, Kansas City Life did not
`dispute that Bernard had relapsed prior to his termination or that he had administered
`anesthesia while under the influence of fentanyl after relapse. A reasonable mind
`could not reconcile Kansas City Life’s position that Bernard was unable to safely
`
`3Although Mid-Missouri was the plan administrator, Kansas City Life acted as
`a claims-review fiduciary with authority to grant or deny Bernard’s claims. See 29
`U.S.C. § 1002(21)(A).
`
`-6-
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`administer anesthesia on October 6, 2017, with its position that he had safely
`administered anesthesia while under the influence of fentanyl during the time period
`between his relapse and termination. We thus conclude that the evidence that Bernard
`made no medical errors and did not seek treatment until after he was terminated, as
`well as the fact that the record does not disclose his exact date of disability, could not
`support Kansas City Life’s conclusion that Bernard was not disabled before his
`insurance coverage ended.
`
`The judgment is affirmed.
`______________________________
`
`-7-
`
`