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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-30999
Summary Calendar
JON STACEY THIBODEAUX,
Plaintiff-Appellant
VERSUS
CONTINENTAL CASUALTY INSURANCE COMPANY, ET AL,
Defendants
WINN DIXIE LOUISIANA INCORPORATED;
CONTINENTAL CASUALTY COMPANY,
Defendants-Appellees.
Appeal from the United States District Court
For the Western District of Louisiana
April 20, 1998
Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.
JOHN M. DUHÉ, JR., Circuit Judge:
Appellant, a meat cutter at a grocery store, was injured in an
automobile accident. Shortly afterward, he quit work claiming that
pain prevented him from working. For nearly two years, he received
total disability benefits from his employee disability plan. After
several doctors pronounced him able to do light or sedentary work,
the insuror ended his benefit payments. Appellant unsuccessfully
sought reconsideration by the insurance company. Appellant then
sued the insuror and his former employer. The district court
upheld the denial of benefits. We affirm.

BACKGROUND
Appellant, Jon Stacey Thibodeaux ("Thibodeaux"), worked with
Winn Dixie as a meat cutter for nearly seven years. While working
there, Thibodeaux was covered by a long-term disability insurance
plan underwritten by Continental Casualty Company "Continental".
Thibodeaux injured his back in an automobile accident. Claiming
that his pain prevented work, Thibodeaux quit in July. He then
submitted his claim for total disability benefits under the plan
and Continental began monthly payments. While receiving his
monthly stipend, Thibodeaux saw several doctors. They all noted
that Thibodeaux was capable of performing light or sedentary work.
Based upon these evaluations, Continental determined that
Thibodeaux was no longer totally disabled within the plan's terms
and discontinued payments. Thibodeaux wrote Continental asking
them to reconsider. Continental did so and upheld the termination
of benefits.
Thibodeaux sued Continental and Winn Dixie under the Employee
Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq,
for reinstatement of his disability benefits. The parties
stipulated the relevant facts and submitted trial briefs. The
district court held that Continental was correct in terminating
Thibodeaux's benefits.
THE MERITS
A. Standard of Review
We review a plan administrator's determination de novo unless
the plan gives the administrator discretionary authority to
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determine eligibility. Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 115 (1989). Here, the administrator had no such
discretion. Additionally, our holding in Pierre v. Connecticut
Gen. Life Ins. Co., 932 F.2d 1552 (5th Cir. 1991) states that we
review factual findings under ERISA plans for abuse of discretion.
When we review factual determinations, we can consider only the
evidence that was available to the administrator; however, in
reviewing interpretations of a plan, we can consider evidence that
was unavailable to the administrator. Southern Farm Bureau Life
Ins. Co. v. Moore, 993 F.2d 98, 102 (5th Cir. 1993).
B. Analysis
The benefit plan defines "total disability" as being "unable
to perform the duties of an occupation for which [one] is or [will]
become qualified by education, training, or experience."
Thibodeaux asks this Court to ignore the plan's definition of
"total disability" and apply instead the "Louisiana rule". He
argues that a line of Louisiana decisions has interpreted "total
disability" to allow recovery when the claimant cannot perform the
substantial and material parts of his job in the usual way. See
Rodriguez v. American Standard Life & Accident Ins. Co., 553 So.2d
479 (La. Ct. App. 3d Cir. 1989).1
Generally, ERISA preempts any state law claim that relates to
any employee benefit plan, 29 U.S.C. § 1144(a); however, ERISA's
savings clause exempts state laws regulating insurance from
1Appellees dispute whether this is the correct rule; however,
like the district court, we express no opinion as to whether
Appellant's statement is a correct one.
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preemption. 29 U.S.C. § 1144(b)(2)(A). Thibodeaux concedes that
the "Louisiana rule" relates to an employee benefit plan, but it is
not preempted because the rule is a state law regulating insurance.
In Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 48 (1987), the
Supreme Court held that several factors determine whether a law
regulates insurance and is saved from pre-emption. First, a court
should be guided by a "`common-sense view'" of the saving clause's
language. Second, a court should apply the three factor test used
to determine whether a practice falls under the "business of
insurance" under the McCarran-Ferguson Act, 15 U.S.C. § 1011 et
seq. That test is : 1) whether the practice has the effect of
transferring or spreading a policyholder's risk; 2) whether the
practice is an integral part of the policy relationship between the
insurer and the insured; and 3) whether the practice is limited to
entities within the insurance industry. Id. at 48-9.
We have never addressed the interpretation of an ERISA plan
term in light of state law and the savings clause. Thus, we look to
other circuits to see how they have applied the test stated above.
In Hammond v. Fidelity & Guaranty Life Ins. Co., 965 F.2d 428 (7th
Cir. 1992), the Seventh Circuit addressed a similar situation. In
Hammond, a grocery store manager, Hammond, was fired for sexual
harassment. He killed himself, and his wife brought an ERISA
action claiming that she was still entitled to life insurance
benefits under the employee benefit plan. The plan extended
coverage one year beyond the employment period, if before death,
the insured had been totally disabled. "Totally disabled" was
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defined as an inability to perform the chief duties of one's job or
any job for which one was fitted by education, training or
experience. Mrs. Hammond argued that Mr. Hammond's behavior was
the result of a narcissistic personality disorder which made him
mentally and physically incapable of working at all. Id. at 428-
29. Mrs. Hammond asked the court to refer to Illinois' laws
governing insurance policy interpretation in deciding whether
Hammond was totally disabled. The Seventh Circuit declined to do
so stating "[w]e cannot imagine any rational basis for the
proposition that state rules of contract interpretation `regulate
insurance' within the meaning of § 1144(b)(2)." Id. at 430.
Further, the court stated that while Illinois' decisional laws
might effect how benefits were distributed, it did not have the
effect of transferring or spreading a policyholder's risk.
Even more important in the court's eyes was that a contrary
answer would fly in the face of congressional intent. Looking at
ERISA's legislative history, the court determined that Congress
expected a uniformity of decisions under the act. Id.; see also
Pilot Life, 481 U.S. at 56. The court argued that Congress'
expectation would be defeated were the federal courts to preserve
50 different states laws of insurance policy interpretation. Thus,
the Seventh Circuit held that ERISA preempts state decisional rules
concerning contract interpretation. We, like the other circuits
that have addressed this issue2, agree that ERISA preempts state
2For other similar cases, see Sampson v. Mutual Benefit Life
Ins. Co., 863 F.2d 108, 110 (1st Cir. 1988); McMahan v. New England
Mutual Life Ins. Co., 888 F.2d 426, 429-30 (6th Cir. 1989); Brewer
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law governing insurance policy interpretation. Thus, we hold that
the correct definition of "total disability" is as stated in the
plan. We now turn to whether the decision to end Thibodeaux's
benefits was an abuse of discretion.
Thibodeaux argues that Continental's decision was an abuse of
discretion because the weight of the medical evidence showed that
Thibodeaux could not return to his job as a meat cutter and would
be substantially restricted as to the type of employment to which
he could return. But, Thibodeaux himself points out, the plan
states that the employee must be physically incapable of performing
a job for which he is qualified by education, training, or
experience. Here, every doctor, including Thibodeaux's own
physician, concluded that he was capable of performing light or
sedentary work. Moreover, a vocational rehabilitation expert
stated that Thibodeaux was qualified to perform many jobs requiring
only light or sedentary work. In Duhon v. Texaco, Inc., 15 F.3d
1302, 1309 (5th Cir. 1994), this Court held that a plan
administrator did not abuse his discretion in deciding, without
first consulting a vocational rehabilitation expert, that an
employee was capable of working. Here, the administrator did
consult an expert. Thus, ending Thibodeaux's benefits was not an
abuse of discretion.
CONCLUSION
For the above reasons, we AFFIRM.
v. Lincoln National Life Ins. Co., 921 F.2d 150, 153 (8th Cir.
1990); Envans v. Safeco Life Ins. Co., 916 F.2d 1437, 1440-41 (9th
Cir. 1990).
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