Donald Jebian v. Hewlett-Packard Company Employee Benefits Organization Income Protection Plan Erisa Plan

Background

Donald Jebian, now 63, worked as a software engineer for Hewlett-Packard *1175 continuously from 1983 to May 1995. In 1990 he began to suffer from a series of orthopedic impairments that caused him pain and made it difficult for him to move normally.

Jebian first developed bilateral shoulder pain. It turned out that he had a massive rotator cuff defect in his right shoulder, which was not diagnosed until 1995. In 1992, Jebian also began to experience back pain. Doctors determined that the cause was lumbar spinal stenosis. 1 His doctors agree that his stenosis is congenital rather than the result of injury. Later, Jebian was diagnosed with lumbar degenerative disc disease, which exacerbated his back pain.

Jebian stopped work in May 1994 because of intractable back pain. He had a lumbar discectomy in June 1995, the first of several surgeries. Because his back pain persisted after the surgery, he had a second surgery on his back in the fall of 1995. Dr. Stark, who examined Jebian at Hewlett-Packard’s request with regard to a worker’s compensation claim in October 1995, predicted that Jebian would need yet another surgery on his back. Jebian also underwent two…

dissenting:

I dissent because the majority forfeits an independent ERISA administrator’s plan — -given authority to exercise its discretion when ruling on a plan member’s claim, simply because the administrator was late in ruling on a claim for benefits and, in doing so, creates an inter-circuit conflict. The majority acknowledges that the plan “explicitly grants discretion to decide appeals from denials of claims for benefits to the plan administrator.” Maj. op. at 1177. Further, the record reveals that the independent plan administrator, Voluntary Plan Administrator (“VPA”), did exercise its discretion in denying Jebian’s appeal. To apply the non-deferential, de novo standard of review solely because of a procedural irregularity is an extreme measure warranted neither by the facts of this case nor by the cases on which the majority relies. As I explain below, all of those cases involved circumstances very different from those presented here. On the contrary, the majority’s conclusion conflicts with the decisions of the only circuit to have dealt with the precise issue we face, as well as with the reasoning of our own precedent regarding the effect of procedural…

310 F.3d 1173 Donald JEBIAN, Plaintiff-Appellant, v. HEWLETT-PACKARD COMPANY Employee Benefits Organization Income Protection Plan; ERISA Plan, Defendants-Appellees. No. 00-56988. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 3, 2001. Filed November 19, 2002. Charles J. Fleishman, Beverly Hills, CA, for the appellant. Joseph P. Busch, III, Gibson, Dunn & Crutcher, Los Angeles, CA, for the appellee. Appeal from the United States District Court for the Central District of California; Ronald S.W. Lew, District Judge, Presiding, D.C. No. CV-99-09548-RSWL. Before PREGERSON, TASHIMA and BERZON, Circuit Judges. OPINION BERZON, Circuit Judge. Background 1 Donald Jebian, now 63, worked as a software engineer for Hewlett-Packard continuously from 1983 to May 1995. In 1990 he began to suffer from a series of orthopedic impairments that caused him pain and made it difficult for him to move normally. 2 Jebian first developed bilateral shoulder pain. It turned out that he had a massive rotator cuff defect in his right shoulder, which was not diagnosed until 1995. In 1992, Jebian also began to experience back pain. Doctors determined that the cause was lumbar…