United States v. 2007-05-07 | 04-56719 | OPETA VNORTHWEST AIRLINES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 IOANE JOHN OPETA,
Plaintiff-Appellant, No. 04-56719
v. D.C. No.
 CV-03-05189-WJRNORTHWEST AIRLINES PENSION
PLAN FOR CONTRACT EMPLOYEES, OPINION
Defendant-Appellee. 
Appeal from the United States District Court
for the Central District of California
William J. Rea, District Judge, Presiding
Argued and Submitted
September 12, 2006—Pasadena, California
Filed May 7, 2007
Before: J. Clifford Wallace, M. Margaret McKeown, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw
5107

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COUNSEL
Lisa S. Kantor, Glenn R. Kantor, Kantor & Kantor LLP,
Northridge, California; Russell G. Petti, Law Offices of Rus-
sell G. Petti, La Canada, California, for the plaintiff-appellant.
Thomas B. Ackland, Jason Orlandi, Barger & Wolen LLP,
Los Angeles, California, for the defendant-appellee.
OPINION
WARDLAW, Circuit Judge:
Ioane John Opeta appeals the district court’s judgment that
he is not “totally and permanently” disabled, and therefore
ineligible for a disability pension benefit under the Northwest
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Airlines Pension Plan for Contract Employees (the “Plan”),
which is administered by Northwest Airlines (“Northwest”)
and regulated by the Employee Retirement Income Security
Act of 1974 (“ERISA”). We must determine whether the dis-
trict court, in conducting a de novo review of the Plan’s denial
of benefits, abused its discretion by admitting evidence extrin-
sic to the administrative record. We hold that because the cir-
cumstances did not clearly establish that the evidence was
necessary to the district court’s review, Friedrich v. Intel
Corp., 181 F.3d 1105, 1110-11 (9th Cir. 1999), the district
court abused its discretion by admitting the evidence. There-
fore, we reverse the district court’s judgment and remand for
a grant of benefits under the Plan.
I.
On October 30, 1996, Ioane John Opeta, a Northwest
employee, severely injured his back when he grabbed a falling
300-pound crate while loading cargo onto an aircraft. Opeta
underwent surgery and received extensive treatment for his
injury, including physical therapy, and numerous epidurals for
pain relief. In 1998, Opeta returned to work for Northwest as
a ramp coordinator on light duty, but was terminated from his
position as equipment lead supervisor because of his medical
condition. He proceeded to work at Northwest in various posi-
tions, including as an accountant, a security coordinator, and
an inspector of security and pollution processes at several
Northwest facilities. Opeta remained in constant pain that was
exacerbated by long periods of sitting or standing.
In 2001, Opeta’s condition worsened and he began experi-
encing sharp pain in his lower back. Medical tests revealed
that he had mild degenerative disc disease in his spine. Dr.
Mealer, the orthopedic surgeon to whom Opeta had been
referred by Northwest, and who performed Opeta’s surgery,
reported that Opeta was temporarily totally disabled, but nev-
ertheless cleared him for work. In 2002, on Dr. Mealer’s rec-
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ommendation, Opeta was placed on leave due to total
disability.
On February 5, 2002, Opeta applied for a disability retire-
ment pension. Under the Plan’s terms, an employee may
receive a disability retirement pension if the participant’s
“employment ends due to [his] total and permanent disabili-
ty.” The Plan defines total and permanent disability as “a
medically determinable physical or mental condition which
renders you incapable of any employment with [Northwest].”
The Plan provides that Northwest will determine whether the
employee is totally and permanently disabled based on the
employee’s medical reports. If the employee disagrees with
Northwest’s decision, a doctor acceptable to both the
employee and Northwest will make a “final and binding”
determination following an Independent Medical Examination
(“IME”). After the Plan’s in-house physician reviewed the
medical records, he concluded that while Opeta was totally
disabled, he was not permanently disabled from all employ-
ment with Northwest. Opeta disagreed with the denial of his
application, and pursuant to the Plan, exercised his right to an
IME.
Northwest and Opeta agreed that Dr. Gold, an orthopedic
specialist, would perform the IME and make the “final and
binding” determination. On November 4, 2002, Dr. Gold
examined Opeta and determined that Opeta was “temporarily
totally disabled” and “unable to work in any capacity.” Dr.
Gold reported that while there was “a possibility that [Opeta]
could be a candidate for extreme sedentary work,” it was
“very unlikely.”
Northwest requested that Dr. Gold clarify his determination
by answering a specific set of written questions about Opeta’s
condition. Dr. Gold responded as follows:
Question 1: Was John Opeta totally disabled
from all employment with North-
west Airlines on May 3, 2002?
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Answer: Yes, Mr. Ioane John Opeta was
totally disabled from all employment
with Northwest Airlines on 05-03-
02.
Question 2: Was John Opeta permanently dis-
abled from all employment with
Northwest Airlines on May 3, 2002?
Answer: Yes, Mr. Ioane John Opeta was per-
manently disabled from all employ-
ment with Northwest Airlines on 05-
03-02.
Question 3: On what date was John Opeta both
totally & permanently disabled from
all employment (including light or
sedentary work without regard to
level of pay)? If John Opeta was not
both totally & permanently disabled
from all employment, please explain
your reasons for your opinion.
Answer: Mr. Opeta has been totally and per-
manent [sic] disabled from all
employment since January 2002 as a
result of his chronic lumbar condi-
tion status post a lumbar L4-5
decompression and chronic bilateral
radiculopathy and chronic back pain
syndrome.
Question 4: Is there any type of work that John
Opeta could do? If “yes”, please
describe.
Answer: At this time, there is no type of work
that Mr. Opeta could participate in
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as noted previously. The possibility
of extreme sedentary type of work
could be a possibility after further
time and appropriate treatment.
Question 5: Is there any treatment currently
available that would allow John
Opeta to return to some kind of
employment? If yes, please describe
the type of treatment and the fre-
quency and duration of care you
believe is indicated.
Answer: With further time and back rehabili-
tation, there is a remote possibility
that Mr. Opeta could return to some
kind of employment and, as
described above, this would be
extremely sedentary. The treatment
that could potentially render Mr.
Opeta to achieve this position could
be further back rehabilitation pro-
gram, epidural steroid injections, or
a possibility of lumbar fusion.
On January 16, 2003, Northwest again denied Opeta’s
claim for benefits, basing its denial on “the evaluation by Dr.
Gold, and other evidence,” also reiterating that Dr. Gold’s
decision was “final and binding.”
Opeta subsequently filed an action in the United States Dis-
trict Court for the Central District of California, seeking an
award of benefits under the Plan.1 The district court held a
1Opeta misguidedly contends that the Plan contains an “arbitration
agreement” which the district court should have enforced. Opeta’s argu-
ment relies on a distorted reading of the Plan’s terms. The Plan itself con-
tains no language suggesting that any dispute between a beneficiary and
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bench trial to determine, on de novo review, whether Opeta
was totally and permanently disabled within the meaning of
the Plan. During opening statements, over Opeta’s objection,
the district court allowed Northwest to read a textual descrip-
tion of a previously undisclosed surveillance videotape of
Opeta filmed in September 2002—two months before Dr.
Gold examined Opeta. Although the videotape itself never
became a part of the administrative record, Northwest pos-
sessed a textual description of the video’s contents and still
shots for over a month before Dr. Gold’s examination. North-
west did not, however, submit this evidence to Dr. Gold to be
considered in his independent evaluation of Opeta’s condi-
tion.
The videotape depicted Opeta doing yard work for approxi-
mately two hours and thirty minutes in front of his house,
including using an electric hedge trimmer to cut the bushes,
a gas-powered weed trimmer to edge the lawn, and a lawn
mower to cut the grass. It also showed Opeta using a broom
and dust pan with an extended handle to sweep, as well as a
hose to water the lawn. While he was performing these activi-
ties, Opeta used back support, which he wore strapped around
his waist and over his shoulders.
After the first day of proceedings, the district judge ordered
Dr. Gold and Opeta into court to testify. Dr. Gold testified
that it was “very unlikely” that Opeta could return to work
and that he was “totally disabled from any employment at
Northwest Airlines.” Dr. Gold also stated that “based on the
information that I had then and based on what I still have right
Northwest must be arbitrated. Opeta, however, suggests that the Plan’s
language providing for an independent medical opinion, with respect to
the determination of total and permanent disability, is in essence an agree-
ment to arbitrate. We disagree and focus instead on the crux of Opeta’s
argument, which is that the district court should have excluded new evi-
dence and enforced Dr. Gold’s “final and binding” determination accord-
ing to the terms of the Plan.
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now, I would stick to that conclusion.” However, on cross-
examination Northwest surprised Dr. Gold by playing the vid-
eotape. Dr. Gold then testified that if he had been provided
with the videotape at the time of his November 2002 evalua-
tion, he would not have concluded that Opeta was totally and
permanently disabled.
The district court also allowed Dr. Mealer to testify regard-
ing Opeta’s medical condition and treatment, as well as his
impressions of the videotape surveillance which he had previ-
ously viewed as part of his review of Opeta’s claim. Addition-
ally, the district court ordered the videographer to testify as to
what he observed while conducting the video surveillance of
Opeta.
The district court’s judgment found that Opeta was not
totally and permanently disabled within the meaning of the
Plan and thus, not eligible for disability retirement benefits.
II.
In ERISA cases, we review de novo the district court’s
choice and application of the appropriate standard of review.
Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 962 (9th
Cir. 2006) (en banc). We review the district court’s decision
to admit or exclude evidence that was not before the plan
administrator for an abuse of discretion. See Dishman v.
UNUM Life Ins. Co. of Am., 269 F.3d 974, 985 (9th Cir.
2001); Friedrich, 181 F.3d at 1110-11. We review for clear
error underlying findings of fact. Friedrich, 181 F.3d at 1109.
III.
The district court correctly ruled that the appropriate stan-
dard for review of the Plan’s denial of benefits is de novo.
The district court reviews a challenge to an ERISA plan’s
denial of benefits de novo “unless the benefit plan gives the
administrator or fiduciary discretionary authority to determine
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eligibility for benefits or to construe the terms of the plan.”
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989). We have held that the default standard of review in
ERISA cases is de novo and that discretion exists only if it is
“ ‘unambiguously retained.’ ” Kearney v. Standard Ins. Co.,
175 F.3d 1084, 1090 (9th Cir. 1999) (en banc) (quoting Bogue
v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir. 1992)).
[1] “We have held that ERISA plans are insufficient to con-
fer discretionary authority on the administrator when they do
not grant any power to construe the terms of the plan.” Abatie,
458 F.3d at 964. In Ingram v. Martin Marietta Long Term
Disability Income Plan, 244 F.3d 1109, 1112-13 (9th Cir.
2001), we concluded that even though the plan identified the
carrier as “solely . . . responsible” for providing benefits,
deciding all claims, and controlling the operation and admin-
istration of the plan, “those provisions merely identified the
plan administrator’s tasks, but bestowed no power to interpret
the plan,” Abatie, 458 F.3d at 964, and therefore de novo
review was appropriate.
[2] Here, the Plan nowhere states that the plan administra-
tor, Northwest, has the full or sole discretion to interpret the
terms of the plan. By its terms, the final decision as to eligibil-
ity is made not by Northwest, but by an independent mutually
acceptable physician. Cf. Abatie, 458 F.3d at 965 (concluding
that a plan conferred discretion because plan administrator
had exclusive “responsibility to interpret the terms of the plan
and to determine eligibility of benefits”); Bergt v. Ret. Plan
for Pilots Employed by MarkAir, Inc., 293 F.3d 1139, 1142
(9th Cir. 2002) (concluding that a plan conferred discretion
because its terms granted the administrator the “power” and
“duty” to “interpret the plan” and to “decide on questions con-
cerning the plan and the eligibility of any Employee” (internal
quotation marks and citations omitted)); McDaniel v. Chevron
Corp., 203 F.3d 1099, 1107 (9th Cir. 2000) (holding that a
plan conferred sufficient discretion because “the Plan Admin-
istrator has the sole discretion to interpret the terms of the
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Plan”) (internal quotation marks omitted); Friedrich, 181 F.3d
at 1110 n.5 (finding that administrator had discretionary
authority because plan stated that insurer “shall have the sole
discretion to interpret the terms of the Plan and to determine
eligibility for benefits”) (internal quotation marks omitted).
Therefore, because the Plan did not unambiguously confer
discretion on Northwest to interpret the terms of the Plan and
determine eligibility benefits, the district court correctly deter-
mined that it should apply a de novo standard of review. See
Abatie, 458 F.3d at 964.
IV.
[3] While de novo is the correct standard of review in this
case, the district court abused its discretion by failing to con-
duct the proper analysis before admitting extrinsic evidence.
If de novo review applies, “[t]he court simply proceeds to
evaluate whether the plan administrator correctly or incor-
rectly denied benefits.” Abatie, 458 F.3d at 963. Under de
novo review, the district court should have determined
whether Opeta was entitled to benefits based on the evidence
in the administrative record and “other evidence as might be
admissible under the restrictive rule of Mongeluzo.” Kearney,
175 F.3d at 1094.
[4] In Mongeluzo v. Baxter Travenol Long Term Disability
Benefit Plan, we resolved the question of the scope of review
that a district court may employ upon de novo review of a
plan administrator’s decision. 46 F.3d 938, 943-44 (9th Cir.
1995). Agreeing with the Third, Fourth, Seventh, Eighth, and
Eleventh Circuits, we held that extrinsic evidence could be
considered only under certain limited circumstances. Id. We
cited with approval the rule of the Fourth Circuit that the dis-
trict court should exercise its discretion to consider evidence
outside of the administrative record “ ‘only when circum-
stances clearly establish that additional evidence is necessary
to conduct an adequate de novo review of the benefit deci-
sion.’ ” Id. at 944 (quoting Quesinberry v. Life Ins. Co. of N.
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Am., 987 F.2d 1017, 1025 (4th Cir. 1993) (en banc)) (empha-
sis added). We emphasized that “a district court should not
take additional evidence merely because someone at a later
time comes up with new evidence” and that “[i]n most cases”
only the evidence that was before the plan administrator at the
time of determination should be considered. Id.
In Quesinberry, the Fourth Circuit provided a non-
exhaustive list of exceptional circumstances where introduc-
tion of evidence beyond the administrative record could be
considered necessary:
claims that require consideration of complex medical
questions or issues regarding the credibility of medi-
cal experts; the availability of very limited adminis-
trative review procedures with little or no
evidentiary record; the necessity of evidence regard-
ing interpretation of the terms of the plan rather than
specific historical facts; instances where the payor
and the administrator are the same entity and the
court is concerned about impartiality; claims which
would have been insurance contract claims prior to
ERISA; and circumstances in which there is addi-
tional evidence that the claimant could not have
presented in the administrative process.
987 F.2d at 1027 (holding that the district court’s admission
of additional evidence was not an abuse of discretion because
the extrinsic evidence was necessary to assist in the under-
standing of complex medical issues).
In Friedrich, we applied the Mongeluzo standard and held
that the district court’s admission of additional evidence was
not an abuse of discretion. 181 F.3d at 1111. There, the dis-
trict court correctly determined that the plan administrator had
prevented the plaintiff from providing medical records to sup-
port his claim during its review and the administrative record
included only incomplete, illegible, and disorganized medical
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records. Id. We concluded that the district court did not abuse
its discretion because “[w]ith the addition of [the plaintiff’s]
trial evidence to [the defendant’s] evidence already in the
administrative record, the district court had a complete record
that allowed the court to make an adequate, independent de
novo review of the benefits decision.” Id. Moreover, we found
that the district court properly excluded additional evidence
presented by the plan administrator, because detailed, written
reports from the plan’s experts already in the administrative
record, “made it unnecessary for the district court to hear
additional testimony from [the defendant’s] consultants.” Id.
Here, the district court admitted several pieces of extrinsic
evidence, including the videotape, and testimony from Dr.
Gold, Dr. Mealer, Opeta, and the videographer, without con-
ducting the proper analysis. Under Mongeluzo, we must deter-
mine whether each piece of extrinsic evidence was necessary
for the district court to conduct an adequate de novo review.
Because we conclude that none of the extrinsic evidence was
necessary to conduct an adequate de novo review, we hold
that the district court abused its discretion in admitting the evi-
dence.2
2Northwest argues that Opeta waived his right to challenge the admissi-
bility of the evidence. The record demonstrates otherwise. Opeta repeat-
edly objected to the introduction of evidence outside of the administrative
record, and never waived this objection. On the first day of proceedings,
Opeta’s counsel objected to the district court’s decision to bring Dr. Gold
into court. Opeta’s counsel attempted to explain to the district court the
correct analysis it should apply in ERISA cases to determine whether to
admit extrinsic evidence given a de novo standard of review:
Counsel: I said you could order it . . . . I don’t think you should
do it either. I think you should apply the answers to
the questions as the plan says. Theoretically, in this
case I have no objection to bringing in Dr. Gold. I
firmly believe he will support our position; however,
to do that turns Ninth Circuit law, actually Supreme
Court rulings on its head with regard to ERISA, that
the Court is supposed to take the administrative record
and rule.
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A.
The Plan states that “[i]f you disagree with the decision of
the Employer, a doctor acceptable to you and to the Employer
The Court: Don’t I have any right to witnesses?
Counsel: Your Honor, under your discretion, if you determine
you need to hear a witness in order to rule —
The Court: I think there is a big question here about what Dr.
Gold said, what he meant by what he said. I would
like him here.
Counsel: If that is what the Court wants, we have no objec-
tion.
. . .
Counsel: We are then turning what the Courts have said is
supposed to be an expeditious, expedited, efficient
ERISA trial into a federal case.
The Court: I’ve never heard of a trial that had no witnesses,
have you?
Counsel: Yes, your Honor. I have been doing them for years
under ERISA. The Kearny case is very specific
about — well, I guess its not very specific, but it’s
instructive that the Court is supposed to look at the
administrative record to make a ruling.
The Court: Well, I would feel much better if Dr. Gold was here.
Counsel: Okay.
. . .
Counsel: Your Honor, all I can tell you is if the Court deter-
mines that there is a de novo review and the Court
wishes additional evidence, the Court can order it.
The Court: I’m going to order Dr. Gold and Mr. Opeta into
court.
Counsel: Fine.
Opeta then filed a set of written objections to Dr. Gold’s testimony and
the introduction of the videotape and, on the second day of trial, before
any witnesses were called, Opeta’s counsel again objected to the admis-
sion of new evidence.
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will make a determination. This determination will be final
and binding on you and on the Employer.” Both parties agree
that Dr. Gold’s determination was final and binding. How-
ever, Northwest asserts that Dr. Gold found Opeta to be
totally, but not permanently disabled. Conversely, Opeta
claims that Dr. Gold unambiguously found that Opeta was
both totally and permanently disabled.
[5] De novo review requires the district court to evaluate
whether Northwest correctly denied Opeta benefits under the
terms of the Plan. Abatie, 458 F.3d at 963. The videotape of
Opeta doing light yard work almost two months before Dr.
Gold’s evaluation was not part of the administrative record,
and is not relevant to the district court’s review of North-
west’s interpretation of Dr. Gold’s assessment. The videotape
itself was never part of Dr. Gold’s evaluation. The administra-
tive record contained still frames from the videotape and tex-
tual descriptions of the surveillance, but Northwest never
submitted any of these materials to Dr. Gold in connection
with his “final and binding” determination, electing instead to
surprise him at trial. Dr. Gold’s initial determination was
based entirely on Opeta’s medical records supplied by both
parties, as well as Dr. Gold’s own personal examination.
Northwest failed to place all of the records and evidence in its
possession before Dr. Gold. Moreover, none of the excep-
tional circumstances outlined in Quesinberry apply here. See
987 F.2d at 1027. Therefore, allowing the videotape into evi-
dence was an abuse of discretion.
B.
[6] The district court also abused its discretion by admitting
the testimony of Dr. Gold, Dr. Mealer, Opeta, and the video-
grapher because the circumstances did not establish that the
additional evidence was necessary for the court to conduct an
adequate de novo review. Even if there was confusion sur-
rounding Dr. Gold’s initial assessment, Northwest took the
appropriate steps to clarify that determination by requesting
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that Dr. Gold answer a set of written questions that specifi-
cally asked whether Opeta was totally and permanently dis-
abled. Dr. Gold’s answers unequivocally state that he found
Opeta both totally and permanently disabled at the time of the
assessment. Dr. Gold’s testimony was not necessary to under-
stand or clarify his conclusions that were plainly stated in
response to Northwest’s follow-up questions.
Under Mongeluzo, that the district judge “would feel much
better” if Dr. Gold testified and that he “had never heard of
a trial [without] witnesses” is insufficient to warrant addi-
tional evidence. There was no “big question” or ambiguity as
to what Dr. Gold meant by what he said—the administrative
record contained his explanation of what he meant, as well as
his conclusion that there was a remote possibility at some
point in the future that Opeta could return to extremely seden-
tary work. Dr. Gold was clear and emphatic in those
responses that Opeta was “totally and permanent [sic] dis-
abled from all employment since January 2002” and that “[a]t
this time, there is no type of work that Mr. Opeta could partic-
ipate in . . .” Moreover, Northwest’s insistence that Dr. Gold
be called to testify seems to have been entirely for the purpose
of sandbagging him with the secret videotape surveillance, as
all of his testimony on direct examination was cumulative of
the detailed answers he had previously supplied to Northwest.
[7] The additional testimony by Dr. Mealer, Opeta, and the
videographer was irrelevant to determining whether the Plan
correctly or incorrectly denied benefits based on Dr. Gold’s
evaluation, which was the only question properly before the
district court.
C.
Northwest further argues that Dr. Gold determined that
Opeta was not permanently disabled because he stated that
there was a possibility that Opeta’s condition might improve
one day to the point where he could return to “extremely sed-
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entary” work, even though that possibility was “remote” and
“very unlikely.” Northwest contends that this “remote” possi-
bility renders Opeta not permanently disabled, justifying its
denial of Opeta’s claim.
We do not interpret the terms of the Plan to require Opeta
to prove that there is absolutely no chance of any type of
recovery. Instead, we construe the Plan, consistent with its
plain language, as requiring Opeta to be totally and perma-
nently disabled as determined by an independent doctor at the
time of his medical evaluation. The Plan states that “Total and
Permanent Disability is a medically determinable physical or
mental condition which renders you incapable of any employ-
ment with the Employer.” Black’s Law Dictionary defines
“permanent disability” as “[a] disability that will indefinitely
prevent a worker from performing some or all of the duties
that he or she could do before an accident.” Black’s Law Dic-
tionary 474 (7th ed. 1999). Dr. Gold stated in his second letter
to Northwest that Opeta is “unable to work in any capacity,
whatsoever, with Northwest Airlines” and that “[w]ith further
time and back rehabilitation, there is a remote possibility that
Mr. Opeta could return to some kind of employment, and
[that] this would be extremely sedentary.” Construing the
term “permanent” to require the claimant to establish with
certainty that he would never recover is unreasonable, and we
will not read into the Plan an unreasonable term.
[8] Northwest also argues that after Dr. Gold submitted his
evaluation, “the Plan exercised its discretion to review these
reports and interpreted them to conclude that Opeta did not
satisfy the definition as set forth in the Plan language.” We
reject this argument. According to the plain language of the
Plan, Northwest no longer had discretion to interpret Dr.
Gold’s reports because the decision of the independent doctor
was “final and binding” on both Northwest and Opeta.
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V.
[9] We hold that admitting the videotape and additional tes-
timony was an abuse of discretion and that, based on the plain
terms of the Plan and binding nature of Dr. Gold’s pretrial
opinion, the district court erred as a matter of law by awarding
a judgment in Northwest’s favor. We therefore reverse the
district court’s judgment and remand for an award of benefits
under the Plan consistent with this opinion.3
REVERSED and REMANDED.
3Opeta asks us to take judicial notice of the fact that the same district
court judge in a separate subsequent case for Opeta’s long term disability
benefits, found that Opeta was totally disabled, and therefore, could not
have possibly found that he was not totally disabled in this case. We deny
this motion as moot.
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