F I L E D

United States Court of Appeals

Tenth Circuit

NOV 26 1997

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KARL SEMTNER, as father and next

friend of Kurt Semtner, a minor,

Plaintiff-Appellee,

v.

GROUP HEALTH SERVICE OF

OKLAHOMA, INC., doing business as

Blue Cross Blue Shield of Oklahoma,

a corporation,

Defendant-Appellant.

No. 96-6224

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CV-95-386-T)

Submitted on the briefs:

Page Dobson, J.R. “Randy” Baker, and David H. Dobson of Holloway, Dobson,

Hudson, Bachman, Alden, Jennings & Holloway, Oklahoma City, Oklahoma, for

Defendant-Appellant.

Glenn Mullins, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before ANDERSON, LOGAN, and HENRY, Circuit Judges.

LOGAN, Circuit Judge.
1 After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

2 An osteotomy is a surgical procedure in which a bone is cut. See

Stedman’s Medical Dictionary 1110 (25th Ed. 1990).

-2-

Plaintiff Karl Semtner sought medical benefits under his employer’s ERISA

governed employee welfare benefit plan for constructive surgery related to his

son’s cleft palate. The plan was administered by the insurer, defendant Group

Health Service of Oklahoma, Inc. d/b/a Blue Cross/Blue Shield of Oklahoma. 

When the administrator/insurer denied the claim plaintiff filed suit in federal

district court, which granted him summary judgment. Defendant appeals. 

Because we agree with the district court’s standard of review and interpretation of

the pertinent plan documents, we affirm.1

Plaintiff’s son was diagnosed with a “[m]axillary verticle [sic] and

transverse hypoplasia secondary to a [congenital] cleft palate [and lip]

deformity and four impacted wisdom teeth.” I Appellant’s App. 121. The child

evidently suffered from a congenital underformed and misaligned upper jaw

associated with abnormal fissures in his palate and lip. The child underwent

corrective surgery at age fourteen. A surgeon performed a LeFort I osteotomy2 by

harvesting a bone from the boy’s left hip for grafting into his alveolar cleft to
3 The doctor also removed his four impacted wisdom teeth. Plaintiff filed a

claim for benefits on behalf of his son for the LeFort I osteotomy only.

4

“Orthognathic” surgery is performed to correct a malposition of the bones

of the jaw. See Stedman’s Medical Dictionary at 1101. 

-3-

reconstruct his upper jaw.3 Defendant initially denied payment, stating that the

plan did not cover “orthognathic surgery.”4

 Id. at 168. Presumably because the

term “orthognathic” does not appear anywhere in the plan or summary plan

description, defendant later changed the basis of its denial to two plan exclusions: 

treatment of temporomandibular joint (TMJ) dysfunction, and oral surgery. See

id. at 178-79. It takes the position that “any treatment (except for accident)

regarding the jaw is excluded under the terms of the plan.” Id. at 181.

The district court determined that defendant’s plan interpretation should be

evaluated under the arbitrary and capricious standard but accorded less deference

than usual because of defendant’s conflict of interest as both plan administrator

and insurer. See Chambers v. Family Health Plan Corp., 100 F.3d 818, 826 (10th

Cir. 1996) (adopting “sliding scale” of deference to plan administrator’s decision

when administrator operates under conflict of interest). The court determined that

the TMJ dysfunction exclusion did not apply because the surgery did not treat

TMJ dysfunction. It found the term “oral surgery” ambiguous. Construing that

term against defendant, it concluded that defendant’s interpretation of the
-4-

exclusion to deny relief in this case was unreasonable, and that plaintiff was

entitled to judgment as a matter of law.

Before we consider defendant’s arguments on the merits, we must

determine whether there is a final judgment over which we have jurisdiction. The

district court entered summary judgment for plaintiff on liability. It later denied a

timely motion to reconsider or to amend the judgment. But no order or judgment

ever specified the amount of damages being awarded to plaintiff.

The parties agree in their briefs addressing our jurisdiction that the amount

of damages is readily ascertainable and undisputed. The omission of the specific

amount from the judgment may therefore be viewed as a clerical error correctable

under Fed. R. Civ. P. 60(a) without affecting finality. See Albright v. UNUM

Life Ins. Co. of Amer., 59 F.3d 1089, 1093 (10th Cir. 1995); Pratt v. Petroleum

Prod. Management, Inc. Employee Sav. Plan & Trust, 920 F.2d 651, 653 n.5, 656

(10th Cir. 1990). We thus conclude that we have jurisdiction over the appeal.

We review the grant of summary judgment de novo, using the same

standard applied by the district court. See Garratt v. Walker, 121 F.3d 565, 567

(10th Cir. 1997). The parties agree that because defendant has discretion to

interpret and apply plan terms, we review its decision to deny benefits to plaintiff

under the arbitrary and capricious standard. See Siemon v. AT&T Corp., 117

F.3d 1173, 1177 (10th Cir. 1997). Because defendant does not adequately
-5-

challenge the district court’s finding that it operated under a conflict of interest in

making its decision, the district court correctly accorded its decision less

deference under this standard. See Chambers, 100 F.3d at 826; Pitman v. Blue

Cross & Blue Shield, 24 F.3d 118, 122-23 (10th Cir. 1994).

Defendant contends that the plan provides no benefits for a LeFort I

osteotomy because of plan exclusions 23 and 37:

23. For oral Surgery procedures except for the treatment of

accidental injury to the jaw, sound natural teeth, mouth or face;

* * *

37. For treatment of temporomandibular joint dysfunction, including

but not limited to diagnostic procedures, splints, orthodontic/

orthopedic appliances, restorations necessary to increase vertical

dimension or to restore or maintain functional or centric occlusion,

alteration of teeth or jaws, Physical Therapy, and medication and

behavioral modification related to conditions of temporomandibular

joint syndrome or any other conditions involving the jaw joint,

adjacent muscles or nerves, regardless of cause or diagnosis.

I Appellant’s App. 50A, 51.

In the summary plan description, the TMJ dysfunction exclusion reads the

same as in the plan. See id. at 110. The oral surgery exclusion in the summary

plan description states only that benefits are not provided “For oral Surgery,

except as specified.” See id. We found no further explanation for the “except as

specified” language in the oral surgery exclusion in the summary plan description,

and defendant has not pointed out any.
-6-

The touchstone of our inquiry is whether defendant’s interpretation of its

plan is reasonable. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111

(1989). When the summary plan description and the plan language differ, the

summary plan description is binding. See Chiles v. Ceridian Corp., 95 F.3d 1505,

1515 (10th Cir. 1996). “A summary [plan description] must be ‘written in a

manner calculated to be understood by the average plan participant, and shall be

sufficiently accurate and comprehensive to reasonably apprise such participants

and beneficiaries of their rights and obligations under the plan.’” Williams v.

Midwest Operating Eng’rs Welfare Fund, No. 96-3889, 1997 WL 601077, at *3

(7th Cir. Sept. 30, 1997) (quoting 29 U.S.C. § 1022(a)(1)). 

We agree with the district court that the TMJ exclusion does not apply in

the instant case. There is no evidence that the surgery was done to correct a TMJ

dysfunction. We agree with the district court that the term “oral surgery” is

ambiguous: that term is neither defined in the summary plan description nor is

there anything in the language of the exclusion to indicate its meaning. Both the

plan and the summary plan description expressly state that benefits are provided

for surgery to improve “the physiological functioning of a malformed body

member.” I Appellant’s App. 50A, 109. The LeFort I osteotomy performed on

plaintiff’s son entailed more than just an operation on the boy’s jaw. It involved

surgery on his hip, from which the bone for graft was taken; it “released” scar
-7-

tissue left from prior closure operations on the cleft palate; it also involved the

boy’s “anterior nasal spine” and separation of “nasal septal walls.” Id. at 121-23. 

It seems clearly to have improved the physiological functioning of a malformed

part of the boy’s body resulting from a congenital defect. The defendant’s broad

interpretation of the term “oral surgery” would seem to include any procedure

accomplished through the mouth, which would contradict, for example, the

express provision covering tonsillectomies. See id. at 104. This case is therefore

distinguishable from Chambers, in which we held that “the evidence strongly

support[ed]” the plan administrator’s decision to deny benefits for a procedure it

deemed experimental. See 100 F.3d at 827. There is no such support for

defendant’s broad interpretation of “oral surgery” here.

Because we agree with the district court that defendant’s interpretation of

the oral surgery exclusion as stated in the plan and summary plan description was

not reasonable, its decision to deny benefits was arbitrary and capricious as a

matter of law. It is unnecessary to decide whether the contra proferentem rule

applies in ERISA cases when the plan administrator has discretion to interpret and

apply plan terms.

We AFFIRM the district court’s judgment but REMAND for its correction

to state the amount of the damages award.