Opeta v. Northwest Airlines Pension Plan
| Decision Date | 07 May 2007 |
| Docket Number | No. 04-56719.,04-56719. |
| Citation | 484 F.3d 1211 |
| Parties | Ioane John OPETA, Plaintiff-Appellant, v. NORTHWEST AIRLINES PENSION PLAN FOR CONTRACT EMPLOYEES, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Lisa S. Kantor, Glenn R. Kantor, Kantor & Kantor LLP, Northridge, CA; Russell G. Petti, Law Offices of Russell G. Petti, La Canada, CA, for the plaintiff-appellant.
Thomas B. Ackland, Jason Orlandi, Barger & Wolen LLP, Los Angeles, CA, for the defendant-appellee.
Appeal from the United States District Court for the Central District of California, William J. Rea, District Judge, Presiding. D.C. No. CV-03-05189-WJR.
Before WALLACE, McKEOWN, and WARDLAW, Circuit Judges.
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 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 district court, in conducting a de novo review of the Plan's denial of benefits, abused its discretion by admitting evidence extrinsic to the administrative record. We hold that because the circumstances 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. Therefore, we reverse the district court's judgment and remand for a grant of benefits under the Plan.
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 positions, 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 experiencing 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 nevertheless cleared him for work. In 2002, on Dr. Mealer's recommendation, Opeta was placed on leave due to total disability.
On February 5, 2002, Opeta applied for a disability retirement 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 disability." 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 employment 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 Northwest Airlines on May 3, 2002?
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 disabled from all employment with Northwest Airlines on May 3, 2002?
Answer: Yes, Mr. Ioane John Opeta was permanently disabled from all employment 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 permanent [sic] disabled from all employment since January 2002 as a result of his chronic lumbar condition 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 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 frequency and duration of care you believe is indicated.
Answer: With further time and back rehabilitation, 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 program, 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 District Court for the Central District of California, seeking an award of benefits under the Plan.1 The district court held a 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 description 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 possessed a textual description of the video's contents and still shots for over a month before Dr. Gold's examination. Northwest did not, however, submit this evidence to Dr. Gold to be considered in his independent evaluation of Opeta's condition.
The videotape depicted Opeta doing yard work for approximately 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 activities, 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 now, I would stick to that conclusion." However, on cross-examination Northwest surprised Dr. Gold by playing the videotape. Dr. Gold then testified that if he had been provided with the videotape at the time of his November 2002 evaluation, he would not have concluded that Opeta was totally and permanently disabled.
The district court also allowed Dr. Mealer to testify regarding Opeta's medical condition and treatment, as well as his impressions of the videotape surveillance which he had previously viewed as part of his review of Opeta's claim. Additionally, 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.
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.
The district court correctly ruled that the appropriate standard...
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