                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

KAREN LAMANTIA,                        
                 Plaintiff-Appellee,
                v.
VOLUNTARY PLAN ADMINISTRATORS,
INC.; HEWLETT-PACKARD COMPANY                No. 03-15706
EMPLOYEE BENEFITS ORGANIZATION,
                       Defendants,            D.C. No.
                                           CV-01-01933-LKK
               and                            OPINION
HEWLETT-PACKARD COMPANY
EMPLOYEE BENEFITS ORGANIZATION
INCOME PROTECTION PLAN,
             Defendant-Appellant.
                                       
       Appeal from the United States District Court
           for the Eastern District of California
       Lawrence K. Karlton, Senior Judge, Presiding

                  Argued and Submitted
        October 6, 2004—San Francisco, California

                   Filed March 23, 2005

    Before: Cynthia Holcomb Hall, Melvin Brunetti, and
             Susan P. Graber, Circuit Judges.

                 Opinion by Judge Brunetti




                            3507
3510          LAMANTIA v. HEWLETT-PACKARD CO.


                         COUNSEL

Mark A. Perry, Esq., Paul DeCamp, Esq., Washington, D.C.,
Joseph P. Busch III, Esq., Susan B. Burr, Esq., Gibson, Dunn
& Crutcher LLP, Palo Alto, California, for the appellant.

Peter Stubbs, Esq., Sacramento, California; Richard J. Chi-
urazzi, Esq., Mastagni, Holstedt & Amick, Sacramento, Cali-
fornia, for the appellee.


                         OPINION

BRUNETTI, Circuit Judge:

   Defendant Hewlett-Packard Company Employee Benefits
Organization Income Protection Plan (“the Plan”) appeals the
district court’s grant of summary judgment in favor of plain-
tiff Karen LaMantia awarding her disability benefits. The
Plan argues that the district court committed three errors in
holding that LaMantia’s complaint was timely, in applying
the treating physician rule, and by reviewing the claims
administrator’s decision under a de novo standard of review.
We agree with the district court that LaMantia’s complaint
was timely. However, because the district court erred in
applying the treating physician rule and erred in reviewing the
claims administrator’s decision under a de novo standard of
review, we reverse and remand for reconsideration of whether
LaMantia was improperly denied disability benefits.
              LAMANTIA v. HEWLETT-PACKARD CO.              3511
         FACTS AND PROCEEDINGS BELOW

   LaMantia was employed at Hewlett-Packard for fourteen
years and was a member of the Plan, which provides disabil-
ity benefits to qualifying claimants. The Plan’s claims admin-
istrator, Voluntary Plan Administrators (“VPA”), makes the
determination whether a claimant is “totally disabled” under
the Plan’s definitions. The member is entitled to appeal an ini-
tial denial of benefits by submitting a written request for an
appeal. The Plan states that if the member “does not receive
written notice of the Claims Administrator’s decision with
respect to his or her claim within one hundred twenty (120)
days after the date the Claims Administrator receives the
request for review, the claim shall be deemed to have been
denied on review.” This “deemed-denial” provision mirrored
a Department of Labor regulation then in effect that applied
to LaMantia’s 1997 appeal. See 29 C.F.R. § 2560.503-1(h)(1),
(h)(4)(1997)(allowing a claimant to commence a lawsuit if the
insured had not received a response 120 days after the
appeal). Regarding an appeal, Hewlett-Packard Company
Employee Benefits Organization (“the Organization”) “is the
named fiduciary which has the discretionary authority to act
with respect to any appeal from a denial of benefits.” VPA is
given “the discretionary power to construe the language of the
Plan and make the decision on review on behalf of the Orga-
nization.” The claimant must file a lawsuit challenging a
denial of benefits “within four (4) years after the occurrence
of the loss for which a claim is made.”

   VPA granted LaMantia short-term disability benefits,
which terminated on May 8, 1997. LaMantia filed a claim for
long-term disability (“LTD”) benefits, which VPA denied on
May 14, 1997. The denial letter reminded LaMantia of her
right to appeal the decision and said that she would receive a
written decision of her appeal within 120 days of the request
for the review, but if she did not receive the written decision
within the 120 day period, “the appeal can be considered
denied.” LaMantia appealed VPA’s denial of LTD benefits on
3512          LAMANTIA v. HEWLETT-PACKARD CO.
June 10, 1997, which meant that 120 days from her appeal
date would be October 8, 1997.

   Beginning in September and October of 1997, there were
several communications between VPA and LaMantia’s coun-
sel leading to an extension of time for LaMantia to file addi-
tional medical reports. On September 18, 1997, LaMantia’s
counsel sent a copy of a medical report with a letter informing
VPA that an additional medical report would be forthcoming.
On September 19, 1997, LaMantia’s counsel and VPA partici-
pated in a telephone call. VPA reported this call as follows:

    Indicated to him [LaMantia’s counsel] that as long as
    his client understands that her appeal will remain
    pending until we receive all the info. they wish to be
    considered with the appeal[.] I have no problem
    waiting for him to gather what ever info. he feels is
    necessary for the appeal. . . . I told him that if he
    feels that it is truely [sic] necessary then he should
    do so, but please send me something in writing indi-
    cating this is his choice to delay the claim.

On October 3, 1997, LaMantia’s counsel sent a letter to VPA
memorializing their “agreement that the appeal review . . .
will not conclude until such time as Ms. LaMantia has
obtained a report from an evaluator of her choice and submit-
ted said report,” and that he hoped the report would be sent
in two months.

  No report was submitted within two months; instead, there
was a breakdown in communication for at least the next two
years. LaMantia’s counsel claims that a letter with additional
medical reports eventually was sent on July 15, 1999. The
Plan claims that it never received this letter and that the last
communication it had with LaMantia’s counsel was in Octo-
ber 1997. On August 4, 2000, VPA received a letter from
LaMantia’s counsel inquiring about the status of her appeal
and referring to the July 15, 1999, letter. VPA responded the
              LAMANTIA v. HEWLETT-PACKARD CO.              3513
next month by stating that it had not received the July 15,
1999, letter and requested that this information be forwarded.
LaMantia’s counsel sent the reports from the July 15, 1999,
letter on October 3, 2000. Nearly a year after this latest sub-
mission, VPA still had not rendered a final decision. After
telephone calls by LaMantia’s counsel, on August 24, 2001,
VPA finally sent a letter to LaMantia’s counsel that reaf-
firmed the initial denial of LTD benefits on the merits, ana-
lyzing the medical records and concluding that she is
suffering from illnesses that LTD benefits do not cover and
that, in the absence of these illnesses, she could return to
work.

   LaMantia filed a complaint on October 17, 2001, alleging
a claim for disability benefits pursuant to the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29
U.S.C. §§ 1001 et seq. She filed a single cause of action
against the Plan, VPA, and the Organization. LaMantia
argued that she was entitled to LTD benefits because she is
“totally disabled” as defined by the Plan.

   After stipulating to the dismissal of VPA, the parties filed
cross-motions for summary judgment. The district court
issued an order dismissing the Organization, granting LaMan-
tia’s motion as to the Plan for benefits, and denying the Plan’s
motion. On April 17, 2003, the Plan timely appealed. We
have jurisdiction pursuant to 28 U.S.C. § 1291.

                        DISCUSSION

I.   Timeliness of LaMantia’s Complaint

   We review de novo the interpretation and meaning of con-
tract provisions. Student Loan Fund of Idaho, Inc. v. U.S.
Dep’t of Educ., 272 F.3d 1155, 1161 (9th Cir. 2001),
amended, 289 F.3d 599 (9th Cir. 2002). We also review de
novo whether a claim is barred by the applicable statute of
3514          LAMANTIA v. HEWLETT-PACKARD CO.
limitations. Orr v. Bank of Am., NT & SA, 285 F.3d 764, 779-
80 (9th Cir. 2002).

   The Plan argues that the district court erred in disregarding
the Plan’s contractual limitations period. Under the Plan, the
claimant must file a lawsuit challenging a denial of benefits
“within four (4) years after the occurrence of the loss for
which a claim is made.” The Summary Plan Description states
that this means the action must be commenced within four
years from the date “when the disability occurred.” Under the
Plan, an employee cannot be deemed “totally disabled,” and
qualify for short-term disability benefits, unless “the Member
is continuously unable to perform each and every duty of his
or her Usual Occupation.” To be deemed “totally disabled” to
qualify for LTD benefits the claimant must show she “is con-
tinuously unable to perform any occupation for which he or
she is or may become qualified by reason of his or her educa-
tion, training, or experience.” The Plan concludes that under
these definitions a claimant who is working cannot be consid-
ered “disabled” and therefore no “occurrence of the loss” has
occurred yet. Thus, the Plan reasons that LaMantia’s date of
the “occurrence of the loss” occurred on August 8, 1996, the
first day she was unable to work. The Plan argues that
LaMantia’s suit had to be filed within four years from August
8, 1996, making her filing on October 17, 2001, untimely.

   The district court refused to apply the Plan’s contractual
limitations period. While noting that contractual limitations
periods in disability plans could apply, the district court stated
that the claimant must have notice of the denial of her claim
and that the limitations period must be reasonable. The district
court held that, under the Plan, LaMantia did not receive
notice as of August 8, 1996, that her claim had been denied.
Next, the district court held that the limitations period was
unreasonable because LaMantia’s claim could have accrued
and run through the entire limitations period before she even
sought disability benefits.
              LAMANTIA v. HEWLETT-PACKARD CO.               3515
   [1] Instead, the district court applied Ninth Circuit prece-
dent governing when a claim accrues. This court has held that
“an ERISA cause of action accrues either at the time benefits
are actually denied, or when the insured has reason to know
that the claim has been denied.” Wetzel v. Lou Ehlers Cadillac
Group Long Term Disability Ins. Program, 222 F.3d 643, 649
(9th Cir. 2000)(en banc) (citations omitted). Applying Wetzel,
the district court held that the earliest LaMantia could have
had notice of the denial of coverage was when her claim was
deemed denied, which was 120 days from her appeal date of
June 10, 1997. However, due to a counting error the district
court held that December 10, 1997 (rather than October 8,
1997), was the earliest date that the limitations period began
to run. Therefore, the district court concluded that LaMantia’s
complaint, filed on October 17, 2001, was not time-barred.

   [2] We agree with the district court that LaMantia’s com-
plaint was timely, but we reach that conclusion under a differ-
ent analysis. Whether the accrual date for the four-year
limitations period stems from the Plan’s contractual provision
or from federal law does not matter. Nor does it matter
whether the accrual date runs from the date the claimant iden-
tified as the starting date (onset) of total disability, or some
later date. Regardless whether the Plan’s contractual limita-
tions period or federal law governs, the totality of VPA’s rep-
resentations and conduct between September 1997 and
August 2001 estopped the Plan from asserting either limita-
tions defense. These representations and conduct indicated to
LaMantia that her appeal was placed in suspension pending
both VPA’s receipt of further medical reports and a final deci-
sion on the merits, and that there was no reason for LaMantia
to file a lawsuit while VPA considered her appeal.

   [3] “As a general rule, a defendant will be estopped from
setting up a statute-of-limitations defense when its own prior
representations or conduct have caused the plaintiff to run
afoul of the statute and it is equitable to hold the defendant
responsible for that result.” Allen v. A.H. Robins Co., Inc., 752
3516          LAMANTIA v. HEWLETT-PACKARD CO.
F.2d 1365, 1371-72 (9th Cir. 1985). Estoppel may apply not
only against a party asserting a statute of limitations defense,
but also against a party asserting a contractual limitations
defense based on a specified time period in an ERISA disabil-
ity plan. See Doe v. Blue Cross & Blue Shield United of Wis.,
112 F.3d 869, 875-77 (7th Cir. 1997). Before estoppel can
apply, the following conditions must be met:

    “1) the party to be estopped must be apprised of the
    facts; 2) the other party must be ignorant of the true
    state of facts, and the party to be estopped must have
    acted so that the other party had a right to believe
    that the party intended its conduct to be acted upon;
    and 3) the other party relied on the conduct to its
    prejudice.”

Hinton v. Pac. Enters., 5 F.3d 391, 396-97 (9th Cir. 1993)
(quoting Golden v. Faust, 766 F.2d 1339, 1341 (9th Cir.
1985)); see also Doe, 112 F.3d at 876 (stating that “if the
defendant through representations or otherwise prevents the
plaintiff from suing within the limitations period, the plaintiff
may add to the remaining limitations period the entire period
during which the defendant’s action was effective in delaying
the suit”).

   When a plaintiff seeks to recover benefits under an ERISA
plan based on an equitable estoppel theory, the Ninth Circuit
requires the plaintiff to satisfy a six-prong test. See Pisciotta
v. Teledyne Indus., Inc., 91 F.3d 1326, 1331 (9th Cir.
1996)(per curiam); Greany v. W. Farm Bureau Life Ins. Co.,
973 F.2d 812, 821-22 (9th Cir. 1992). However, this six-
prong test is inapplicable to the present case because LaMan-
tia is not seeking to recover benefits based on an equitable
estoppel theory concerning the substance of her claim. Rather,
estoppel is applicable here because this case involves repre-
sentations and conduct by VPA which caused LaMantia not
to file suit within the limitations period. When estoppel has
been invoked in cases arising under ERISA involving similar
              LAMANTIA v. HEWLETT-PACKARD CO.             3517
circumstances, courts have not required heightened standards
and instead have applied general estoppel principles. See Hin-
ton, 5 F.3d at 396-97 (applying Golden v. Faust to the plain-
tiff’s argument that the defendant should be estopped from
asserting statute of limitations defense); Bourgeois v. Pension
Plan for Employees of Santa Fe Int’l Corps., 215 F.3d 475,
481-82 (5th Cir. 2000) (holding that defendants estopped
from arguing claim is time-barred before internal appeals
committee); Ralph v. Lucent Techs., Inc., 135 F.3d 166, 171
(1st Cir. 1998) (citing Doe, 112 F.3d at 875-78, court holds
that “the only impact on Lucent’s ERISA plan is the extension
of time to make application for certain benefits. No variation
in the terms of benefits or their application is implicated.”);
Doe, 112 F.3d at 875-77 (applying estoppel to toll limitations
period in ERISA disability benefits plan). Due to these repre-
sentations and conduct, the issue is whether the Plan should
be estopped from asserting any limitations defense; LaMan-
tia’s ultimate theory of recovery is unrelated to equitable
estoppel.

   The record reveals that, over the course of four years, VPA
made several representations to LaMantia regarding the status
of her internal appeal which LaMantia reasonably relied upon,
and that LaMantia’s reliance caused her prejudice by her fail-
ure to file suit within either limitations period. Importantly,
during the course of LaMantia’s appeal VPA never relied on
or even mentioned the contractual limitations period or the
deemed-denial provision, and it never considered LaMantia’s
claim to be fully denied until August 24, 2001, when a final
decision on the merits was rendered. On September 19, 1997,
VPA represented to LaMantia’s counsel that her appeal would
remain pending until VPA received all of the medical infor-
mation that LaMantia wanted to be considered and that there
was “no problem waiting for him to gather what ever info. he
feels is necessary for the appeal.” On October 3, 1997,
LaMantia’s counsel sent a letter to VPA memorializing
VPA’s representations that “the appeal review . . . will not
conclude until such time as Ms. LaMantia has obtained a
3518          LAMANTIA v. HEWLETT-PACKARD CO.
report from an evaluator of her choice and submitted said
report.” Not once did VPA object to this initial extension of
time. Indeed, between 1997 and 2000, VPA never informed
LaMantia that her claim had been denied and, for all LaMan-
tia knew, her appeal was still being considered by VPA. Due
to VPA’s statements, there was no need to file a lawsuit
because VPA was considering her appeal.

   Even more significant is VPA’s response when VPA
received a letter from LaMantia’s counsel on August 4, 2000
—4 days before, according to the Plan, the contractual limita-
tions period expired—inquiring as to why VPA had not yet
rendered a final decision. Rather than mention that the limita-
tions period to file a lawsuit was about to expire or invoke the
deemed-denial provision, VPA waited more than a month to
write a letter to LaMantia’s counsel. Instead of asserting that
LaMantia’s claim was now time-barred, this September 12,
2000, letter allowed even more time to file medical records.
VPA could have replied that the contractual limitations period
had already expired, or that her claim had been deemed
denied by the passage of time. Instead, this action clearly
demonstrates that VPA did not intend to rely on either the
Plan’s limitations provision or the deemed-denial provisions
and, instead, wanted additional information to consider the
appeal. Again, due to these representations, rather than file a
lawsuit LaMantia waited for VPA’s final decision.

   [4] Finally, after nearly another year had passed without a
final decision, LaMantia’s counsel made further contact with
VPA to inquire about the still-pending appeal. Again, instead
of informing LaMantia that her claim was time-barred, VPA
rendered a final decision on August 24, 2001, that was based
on the merits, analyzing all the medical evidence VPA now
had and reaffirming its 1997 initial denial. Not until litigation
ensued did the Plan begin to rely on its contractual limitations
period, much less the deemed-denial provision. Instead,
VPA’s communications lulled LaMantia into believing that
her appeal was being considered and that there was no reason
               LAMANTIA v. HEWLETT-PACKARD CO.              3519
to file a lawsuit if the internal appeals process would ulti-
mately result in LTD benefits.

   [5] We conclude that the totality of VPA’s representations
and conduct between September 1997 and August 2001 estop-
ped the Plan from relying on either the statute or contractual
limitations period. VPA rendered a final decision on the mer-
its on August 24, 2001, and LaMantia’s filing of her com-
plaint only two months later on October 17, 2001, was timely.

II.   Application of the Treating Physician’s Rule

  We review de novo the district court’s selection of the
appropriate burden of proof. Taisho Marine & Fire Ins. Co.,
Ltd. v. M/V Sea-Land Endurance, 815 F.2d 1270, 1274 (9th
Cir. 1987).

   [6] Prior to the Supreme Court’s decision in Black &
Decker Disability Plan v. Nord, 538 U.S. 822 (2003), the
Ninth Circuit applied the treating physician rule in ERISA
disability cases. See Regula v. Delta Family-Care Disability
Survivorship Plan, 266 F.3d 1130 (9th Cir. 2001), vacated,
539 U.S. 901 (2003). Under this rule, cited several times by
the district court, the opinions of a claimant’s treating physi-
cian are given special deference and may be disregarded only
for clear and convincing reasons based on substantial evi-
dence in the record. See Regula, 266 F.3d at 1140. In Nord,
the Supreme Court rejected this rule, holding that “ERISA
and the Secretary of Labor’s regulations” implementing the
statute “do not command plan administrators to credit the
opinions of treating physicians over other evidence relevant to
the claimant’s medical condition.” 538 U.S. at 825.

   Nord was decided after the district court’s decision in this
case. The district court relied heavily on Regula, citing it sev-
eral times and applying the rule throughout its decision. See,
e.g., (E.R. at 541)(“First, consistent with Regula, I consider
the opinions of the plaintiff’s treating physicians, Dr. Agresti
3520          LAMANTIA v. HEWLETT-PACKARD CO.
and Dr. Herman . . . .”); (E.R. at 542)(stating that these opin-
ions were “not controverted by the opinions of the doctors
hired by VPA”); (E.R. at 543)(“Because the opinions of the
plaintiff’s treating physicians are uncontroverted, this court
may disregard them only for clear and convincing reasons
based on substantial evidence in the record. See Regula, 266
F.3d at 1140.”).

  [7] When the district court applies the wrong burden or
quantum of proof, the judgment should be reversed. See Car-
valho v. Raybestos-Manhattan, Inc., 794 F.2d 454, 456 (9th
Cir. 1986); White v. Wash. Pub. Power Supply Sys., 692 F.2d
1286, 1289 (9th Cir. 1982)(Kennedy, J.)(“Thus, the district
court erred not only in allocating the burden of proof, but also
in setting the quantum of proof necessary.”). After Nord,
opinions by LaMantia’s treating physicians are afforded no
special deference, and the Plan is not required to rebut these
opinions by clear and convincing evidence. The case must be
remanded for the district court to conduct a new review of the
evidence in light of Nord.

III.   De Novo or Abuse of Discretion Standard of Review

   Conclusions of law are reviewed de novo, “including the
trial court’s determination of its own standard of review of an
ERISA administrator’s determination of eligibility for bene-
fits.” LeTourneau Lifelike Orthotics & Prosthetics, Inc. v.
Wal-Mart Stores, Inc., 298 F.3d 348, 350-51 (5th Cir. 2002).

   Challenges to an ERISA plan administrator’s denial of ben-
efits are reviewed under a de novo standard “unless the bene-
fit plan gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits or to construe
the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 115 (1989). If the plan does grant such discre-
tion, the court applies the abuse of discretion standard of
review. Jebian v. Hewlett-Packard Co. Employee Benefits
Org. Income Prot. Plan, 349 F.3d 1098, 1103 (9th Cir. 2003),
              LAMANTIA v. HEWLETT-PACKARD CO.                3521
petition for cert. filed, 72 USLW 3553 (U.S. Feb. 20, 2004)
(No. 03-1202).

   In Jebian, this court held “that where, according to the plan
and regulatory language, a claim is ‘deemed . . . denied’ on
review after the expiration of a given time period, there is no
opportunity for the exercise of discretion and the denial is
usually to be reviewed de novo.” Id. (emphasis added). The
exception that would warrant deference is when the plan
administrator “is engaged in a good faith attempt to comply
with its deadlines.” Id. A deferential standard may apply to
“an administrator engaged in genuine, productive, ongoing
dialogue that substantially complies with a plan’s and the reg-
ulations’ timelines.” Id. at 1108.

   Jebian involved the same Plan at issue in this case. After
VPA denied Jebian’s claim for LTD benefits, Jebian appealed
the denial on November 11, 1998. Id. at 1101, 1103. VPA
responded on March 15, 1999, one day before Jebian’s claim
would have been deemed denied under the federal regulations
then in effect and under the terms of the Plan. Id. at 1103,
1104. The March 15, 1999, letter responded to Jebian’s objec-
tions to the denial of benefits, but it also left the appeal pend-
ing to consider further medical documentation. Id. at 1102. In
June 1999, VPA wrote Jebian stating that it was still awaiting
some medical records and that the appeal remained pending.
Id. Rather than wait for a decision by VPA, Jebian invoked
the deemed-denial provision and, on September 29, 1999,
filed a lawsuit. See id. On November 5, 1999, VPA finally
sent Jebian a letter denying his claim for LTD benefits. Id.
The district court reviewed VPA’s decision for an abuse of
discretion, but the Ninth Circuit reversed. Id.

   This court stated that a deferential standard of review
applied when the administrator exercises discretion. Id. at
1104. There is no exercise of discretion, however, “when a
decision is, under the Plan, necessarily the mechanical result
of a time expiration rather than an exercise of discretion.” Id.
3522          LAMANTIA v. HEWLETT-PACKARD CO.
at 1105. The court stated that a deemed-denial is “an auto-
matic decision rather than one calling for the exercise of the
administrator’s discretion.” Id. Due to VPA’s dragging its
feet, the deemed-denial provision allowed Jebian to file suit
in federal court rather than wait indefinitely for VPA to
finally render a final decision.

   The court did leave open the possibility for a more deferen-
tial review when the deemed-denial deadline passed but the
administrator was engaged in a good faith exchange of infor-
mation with the claimant. Id. at 1107. The facts in Jebian,
though, did not demonstrate good faith exchange of informa-
tion. Id. VPA never requested additional information until one
day before the deemed-denial deadline. Id. The court stated
that 119 days of silence is not productive nor reasonably
informative to the claimant. Id.

   Jebian discussed the Tenth Circuit case of Gilbertson v.
Allied Signal, Inc., 328 F.3d 625 (10th Cir. 2003), which had
discussed and cited with approval an earlier withdrawn Jebian
decision, which also had applied the de novo standard of
review. See Jebian v. Hewlett-Packard Co. Employee Benefits
Org. Income Prot. Plan, 310 F.3d 1173 (9th Cir. 2002), opin-
ion withdrawn and superseded, 349 F.3d 1098 (9th Cir.
2003). In Gilbertson, the plaintiff filed an appeal of her denial
of benefits that was received by the claims administrator on
January 14, 1999. 328 F.3d at 629. The claims administrator
sent a fax on February 16, 1999, extending the deadline for
submission of medical information. Id. This was the last com-
munication the plaintiff received. Id.

   Without informing Gilbertson, the claims administrator
referred her file to one of its medical consultants, who
decided that an independent review should be taken. Gilbert-
son’s attorney sent a letter on June 1, 1999, asking for a deci-
sion, but the claims administrator did not respond. Id. Instead,
a medical appointment was scheduled, and Gilbertson
received a letter on August 20, 1999, informing her of an
              LAMANTIA v. HEWLETT-PACKARD CO.             3523
appointment. Id. Gilbertson cancelled the appointment and,
invoking the deemed-denial provision, filed suit on August
25, 1999. Id. at 629-30.

   The Tenth Circuit applied a de novo standard of review to
the deemed-denial. Id. at 634-36. The court stated that under
appropriate circumstances it would apply a “substantial com-
pliance” rule: “in the context of an ongoing, good faith
exchange of information between the administrator and the
claimant, inconsequential violations of the deadlines or other
procedural irregularities would not entitle the claimant to de
novo review.” Id. at 635. However, because the administrator
had stopped communicating with Gilbertson altogether, there
was no meaningful dialogue and thus the de novo standard
applied. Id. at 636.

   [8] The circumstances of this case fall into the Jebian
exception for when an abuse of discretion standard of review
will apply. As a threshold matter, the Plan does give VPA
“the discretionary power to construe the language of the Plan
and make the decision on review,” so the abuse of discretion
standard would normally apply. See Firestone, 489 U.S. at
115. Further, as Jebian requires, there was good faith commu-
nication between the claims administrator and the claimant.
There were letters and telephone conversations between VPA
and LaMantia’s counsel beginning several weeks before the
deemed-denial date that led to extensions of time, all of which
were at the request of LaMantia to enable her to file addi-
tional medical information. This is unlike both Jebian and
Gilbertson. In Jebian, the only communication was VPA’s
letter sent one day before the deemed-denial deadline. See 349
F.3d at 1104. In Gilbertson, the claims administrator com-
pletely failed to communicate with the claimant. See 328 F.3d
at 636.

   Most significantly, also unlike Jebian and Gilbertson,
claimant LaMantia was the party who sought an extension of
time which caused the deadline to file documents to occur
3524          LAMANTIA v. HEWLETT-PACKARD CO.
beyond the deemed-denial date. In both Jebian and Gilbert-
son, the claims administrator was responsible for the deemed-
denial deadline to pass without a written final decision. In
both Jebian and Gilbertson, this led to the claimants relying
on the deemed-denial provision to file suit. In contrast, the
deemed-denial date was apparently an impediment to LaMan-
tia, who requested more time so that she could file additional
documentation with VPA beyond that date.

   Further, by allowing more medical information to be filed
past the deemed-denial period when the claimant makes such
a request, and by subsequently rendering a decision on the
merits, VPA exercised its discretion. By exercising its discre-
tion and allowing material to be filed after the deemed-denial
period when the claimant is requesting the extension, the
claims administrator should not be subjected to the more scru-
tinizing de novo standard of review. Accord Jebian, 349 F.3d
at 1106 (“Deference to an exercise of discretion requires dis-
cretion actually to have been exercised.”). Otherwise, claims
administrators would have no incentive to allow extensions
beyond the deemed-denial period when claimants seek an
extension because they would be subject to de novo review.

                       CONCLUSION

   The district court is affirmed on its holding that LaMantia’s
complaint was timely. The district court is reversed and the
case remanded for the district court to review under the abuse
of discretion standard, without applying the treating physician
rule, LaMantia’s claim that she was improperly denied dis-
ability benefits. Each party shall bear their own costs.

 AFFIRMED in part; REVERSED in part and
REMANDED.
