## 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. Dobso n of Holloway, Dobson, Hudson, Bachman, Alden, Jennings & Holloway, Oklaho ma City, Oklahoma, for Defendant-Appellant. Glenn Mullins, Oklahoma City, Oklahoma, for Plainti ff-Appellee.
Before ANDERSON, LOGAN, and HENRY, Circuit Judges.
LOGAN, Circuit Judge.1 After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision 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 bon e is cut. See Stedman’s Medical Dictionary 1110 (25th Ed. 1990). -2- Plaintiff Karl Semtner sought medical benefits unde r his employer’s ERISA governed employee welfare benefit plan for construc tive surgery related to his son’s cleft palate. The plan was administered by t he insurer, defendant Group Health Service of Oklahoma, Inc. d/b/a Blue Cross/B lue Shield of Oklahoma. When the administrator/insurer denied the claim pla intiff filed suit in federal district court, which granted him summary judgment. Defendant appeals. Because we agree with the district court’s standardof review and interpretation of the pertinent plan documents, we affirm. 1 Plaintiff’s son was diagnosed with a “[m]axillary v erticle [sic] and transverse hypoplasia secondary to a [congenital] c left palate [and lip] deformity and four impacted wisdom teeth.” I Appel lant’s App. 121. The child evidently suffered from a congenital underformed an d misaligned upper jaw associated with abnormal fissures in his palate andlip. The child underwent corrective surgery at age fourteen. A surgeon perf ormed a LeFort I osteotomy 2 by harvesting a bone from the boy’s left hip for graft ing into his alveolar cleft to3 The doctor also removed his four impacted wisdom te eth. Plaintiff filed a

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

4 “Orthognathic” surgery is performed to correct a ma lposition 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.” 4Id. at 168. Presumably because the term “orthognathic” does not appear anywhere in the plan or summary plan description, defendant later changed the basis of i ts denial to two plan exclusions: treatment of temporomandibular joint (TMJ) dysfunct ion, and oral surgery. See id . at 178-79. It takes the position that “any treat ment (except for accident) regarding the jaw is excluded under the terms of th e plan .” Id . at 181. The district court determined that defendant’s planinterpretation should be evaluated under the arbitrary and capricious standard but accorded less deference than usual because of defendant’s conflict of inter est 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 t o plan administrator’s decision when administrator operates under conflict of inter est). 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 mer its, we must determine whether there is a final judgment over wh ich we have jurisdiction. The district court entered summary judgment for plainti ff 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 ju risdiction 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 final ity. 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 ju risdiction over the appeal. We review the grant of summary judgment de novo, us ing 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 d efendant has discretion to interpret and apply plan terms, we review its decis ion 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 oper ated under a conflict of interest in making its decision, the district court correctly a ccorded 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 benefi ts for a LeFort I osteotomy because of plan exclusions 23 and 37: 23. For oral Surgery procedures except for the tre atment of accidental injury to the jaw, sound natural teeth, mouth or face; * * * 37. For treatment of temporomandibular joint dysfu nction, including but not limited to diagnostic procedures, splints, orthodontic/ orthopedic appliances, restorations necessary to in crease vertical dimension or to restore or maintain functional or c entric occlusion, alteration of teeth or jaws, Physical Therapy, and medication and behavioral modification related to conditions of te mporomandibular joint syndrome or any other conditions involving th e jaw joint, adjacent muscles or nerves, regardless of cause or diagnosis. I Appellant’s App. 50A, 51. In the summary plan description, the TMJ dysfunctio n 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 a s specified” language in the oral surgery exclusion i n 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 descriptio n] must be ‘written in a manner calculated to be understood by the average p lan participant, and shall be sufficiently accurate and comprehensive to reasonab ly apprise such participants and beneficiaries of their rights and obligations u nder 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 exclu sion does not apply in the instant case. There is no evidence that the su rgery was done to correct a TMJ dysfunction. We agree with the district court thatthe term “oral surgery” is ambiguous: that term is neither defined in the sum mary 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 functioni ng 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 operatio n on the boy’s jaw. It involved surgery on his hip, from which the bone for graft w as taken; it “released” scar-7-

tissue left from prior closure operations on the cl eft palate; it also involved the boy’s “anterior nasal spine” and separation of “nas al 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 see m to include any procedure accomplished through the mouth, which would contrad ict, 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 d eny 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 defen dant’s interpretation of the oral surgery exclusion as stated in the plan an d 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 whetherthe 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.