Concilio v. CIGNA Health and Life Insurance Company

Filing 35

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re dismissing 2 Complaint filed by Rebecca Concilio, by Magistrate Judge Michael J. Watanabe on 11/30/2017. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-01863-WJM-MJW
REBECCA CONCILIO,
Plaintiff,
v.
CIGNA HEALTH AND LIFE INSURANCE COMPANY,
Defendant.

REPORT AND RECOMMENDATION ON PLAINTIFF REBECCA CONCILIO’S ERISA
COMPLAINT
(DOCKET NO. 2)

Michael J. Watanabe
United States Magistrate Judge
This case is before the Court on Plaintiff Rebecca Concilio’s (“Concilio”)
Complaint (Docket No. 2) to recover health insurance benefits under section 29 U.S.C.
§ 1132(a)(1)(B) of the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. §§ 1001, et seq. Judge William J. Martinez referred the Complaint
to the undersigned Magistrate Judge for a recommended disposition. (Docket No. 34.)
The Court has reviewed the Administrative Record (“AR”) (Docket No. 15), the parties’
Opening Briefs (Docket Nos. 26 & 27), Response Briefs (Docket Nos. 28 & 29), and
Reply Briefs. (Docket Nos. 32 & 33.) The Court has taken judicial notice of the Court’s
file, and considered the applicable Federal Rules of Civil Procedure and case law. The
Court now being fully informed makes the following findings of fact, conclusions of law,

and recommendation.1
I. BACKGROUND
Concilio is a dental assistant seeking medical benefits under the DentalOne
Partners Open Access Plus Medical Benefits Health Savings Plan Account (the “Plan”).
The Plan is sponsored and administered by DentalOne, Inc. (AR at 156-27.) Defendant
Cigna Health and Life Insurance Company (“Cigna”) insures the Plan and acts as the
claim administrator. (AR at 127.) DentalOne, Inc. has delegated to Cigna “the
discretionary authority to interpret and apply plan terms and to make factual
determinations in connection with its review of claims under the plan.” (Id.) This
includes the discretionary authority “to perform a full and fair review, as required by
ERISA, of each claim denial which has been appealed by the claimant or his duly
authorized representative.” (Id.)
Concilio was injured in an automobile accident on September 19, 2013, when
her vehicle was struck by another vehicle and hit a concrete barrier at about 65 m iles
per hour. (AR at 413; 441.) She was evaluated for lower back pain by Dr. Christopher
Cain on November 5, 2013. (AR at 413.) Dr. Cain noted that since the accident,
Concilio had undergone “some physical therapy that has tended to aggravate rather
than help her pain,” and that radiographs revealed “reduced disk height at both L4-5
and L5-S1, with the changes at L5-S1 more advanced.” (AR at 415.) Concilio was

1

As Judge Martinez has stated, “where the parties have not disputed the
completeness of the Administrative Record . . . this Court treats the case as presenting
cross-appeals under Fed. R. at App. P. 28.1, and resolv es the case on the pending
papers.” Kaferly v. Metro. Life Ins. Co., 189 F. Supp. 3d 1085, 1092 (D. Colo. 2016)
(citation omitted).
2

advised to focus on core stabilization and she was given exercises to perform. (Id.)
Concilio returned to Dr. Cain on December 26, 2013, due to worsening pain that
physical therapy did not alleviate. An MRI revealed degeneration of L4-5 and L5-S1
with reduced disk height at both levels. (AR at 409; 411-12.) Concilio and Dr. Cain
discussed “at length about the fact that in the absence of neural compression or
instability surgery should be considered a last resort, and that at this stag e she should
focus on core stability and weight reduction.” (AR at 409-10.) Concilio admitted that she
had not been doing her exercises (AR at 410), although it appears that she told
physician’s assistant Robert V. Cooley Jr. that she had been performing her exercises
“several times per week.” (AR at 408.) Medical staff stressed the importance of these
exercises–mini crunches and back extensions, performed twice a day, and
swimming–and Concilio was told to follow up in three months. (AR at 407.) At that time,
if pain persisted in spite of the regular and appropriate performance of the stabilization
exercises, surgery would be discussed as an option. (AR at 410.)
Concilio was evaluated by Dr. Cain again on April 3, 2014. (AR at 406.) She had
been unable to lose weight or do her core strengthening exercises, stating that any
extension activity aggravated her pain. (AR at 404; 406.) Although she had been
walking for exercise, the pain was too great for her to ride her horses at more than a
walking pace. (Id.) Dr. Cain informed Concilio that “it is up to her to decide if her
symptoms and limitations warrant surgery as she has no features of instability on
flexion and extension and no neural compromise despite her lower limb numbness.”
(AR at 406.) She was told to consult with her primary care physician regarding whether
to proceed with a CT discography to confirm that the disc degeneration was responsible
3

for her pain. (Id.)
Concilio underwent a discography on April 30, 2014. (AR 402-03.) Discs L3-L4
(the control disc), L4-L5, and L5-S1 were injected with dye in order to mimic her lower
back pain. (AR at 400-01.) Concilio had no pain at the L3-L4 control lev el, but she
experienced significant increases in pain at L4-L5 and L5-S1. (AR at 401.)
Dr. Cain reviewed the result of the discography with Concilio on May 8, 2014.
(AR at 396.) Dr. Cain opined that “the result was pretty clear cut in that the results
confirm a localized origin of her back and leg pain,” and stated that Concilio “has low
back pain and radiating S1 left leg pain progressively worsening over the past six
months despite extensive non operative treatment.” (Id.) The two discussed her options
going forward, including surgical procedures such as disc replacement and Anterior
Lumbar Interbody Fusion (“ALIF”). (Id.) Concilio favored disc fusion, and she was put in
touch with the surgery scheduler to arrange for the ALIF procedure. (Id.)
The Plan required Concilio or her physician to obtain preservice authorization
from Cigna that the surgery was medically necessary. (AR 47; 122.) On June 17, 2014,
Cigna denied Concilio and Dr. Cain’s request to cover the ALIF procedure. (AR at 418.)
Dr. Gregory Przybylski, a Cigna medical director, made the decision to deny Concilio’s
treatment, stating:
Based upon current available information, coverage cannot
be approved because there is insufficient scientific evidence
that shows the safety and/or effectiveness of lumbar fusion
for the management of multiple-level degenerative disc
disease (more than 1 level). At the present time, each is
considered non-standard therapy and falls under the
category of experimental/investigative/unproven. Your
benefit plan does not cover experimental/investigational/
unproven services.
4

(AR at 419.)
In the denial, Dr. Przybylski also cited Cigna’s criteria for authorizing a single
lumbar fusion, and found that Concilio did not establish that this procedure w as
medically necessary. Dr. Przybylski determined that the medical records and
documentation did not confirm that Concolio: (1) had “unremitting pain accompanied by
significant functional impairment for at least 12 months”; (2) had “failed at least 6
months of a structured, physician-supervised conservative medical management
program as outlined including exercise, medications, physical therapy, and activity
modification”; (3) had single degenerative disc disease as the likely cause of her pain;
(4) had another qualified physician to “support the absence of untreated, underlying
psychological conditions/issues as a contributor to chronic pain”; and (5) had
“completed a course of cognitive behavioral therapy as outlined.” (AR at 419-20.)
The denial was also accompanied with an explanation of how Concilio could
appeal Cigna’s decision. (AR at 420.) A request for review could be done in writing or
by phone, and the appeal goes to a different physician. (AR at 420-21.)
Dr. Cain called Dr. Przybylski on June 24, 2014 for a “Peer to Peer”
conversation. (AR 307; 416-17.) Dr. Cain “argued about the overwhelming international
evidence supporting one or two level fusion” for degenerative disc disease, while Dr.
Przybylski “explained Cigna’s noncoverage of multilevel fusion for this clinical indication
and the rationale behind it.” (Id.) The doctors also discussed the Brox and Fritzell
studies. (Id.) Dr. Przybylski did not change his original decision. (Id.) No appeal was
taken.
Following the denial, on July 27, 2014, Concilio presented to Dr. Michael J.
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Rauzzino, a neurosurgeon at Front Range Neurosurgery, for a second opinion. (AR at
432.) Although he expressed reservations about “performing such an aggressive
procedure at age 26,” Dr. Rauzzino stated that the two-level anterior lumbar fusion
proposed by Dr. Cain was reasonable in light of the severity of the findings and
Concilio’s symptoms. (AR at 434.) Dr. Rauzzino did not think that epidural steroid
injections would be helpful, and did “not know that there is any additional therapy to be
done.” (Id.) During a follow-up visit on September 14, 2014, Dr. Rauzzino confirmed his
impression that Concilio would be a good candidate for a L4-S1 fusion. (AR at 430-31.)
Cigna denied Concilio’s second request for surgery on October 16, 2014. (AR at
441.) On October 21, 2014, Dr. Przybylski and Dr. Rauzzino had a “Peer to Peer”
conversation about the denial, during which Dr. Rauzzino expressed confusion as to
why Cigna covered single level fusions but not two-level fusions. (AR at 442-43.) Dr.
Przybylski told him he stopped performing two-level fusions for degenerative disc
disease in 2000 due to limited observable benefits, and the two argued about the
literature on subject. (Id.) Dr. Przybylski maintained his denial of the procedure. (Id.)
On November 3, 2014, Dr. Rauzzino appealed the decision. (AR at 452-54.) In
his appeal, Dr. Rauzzino cited the unfairness of Cigna’s authorization of the
discography, which he described as a painful and invasive diagnostic procedure, when
there was no realistic expectation that the fusion would be approved. (AR at 453.) He
also stated that two-level fusions are not “experimental,” but are instead considered
routine and appropriate under the Colorado State W orkers’ Compensation guidelines.
(Id.) Dr. Rauzzino had first-hand experience of this; he sat on the Colorado Medical
Society Board, which had recently reviewed the workers’ compensation low back pain
6

guidelines. (Id.) He also stated that other insurance companies routinely permit twolevel fusions. (Id.)
In addition to drafting the appeal, Dr. Rauzzino evaluated Concilio on November
3, 2014. (AR at 455.) He opined that she did not need cog nitive behavioral therapy to
treat her back pain, and stated that although conservative therapy has failed, Concilio
would try repeating physical therapy while the appeal was pending. (Id.)
Cigna denied the appeal on December 3, 2014, citing its previous rationales. (AR
at 474-77.) Cigna medical director Dr. David E. Mino, Dr. Przybylski’s supervisor, signed
the denial. (AR at 477.)
On December 18, 2014, Dr. Rauzzino faxed a letter “revisit[ing]” the appeal, in
which he reiterated his earlier arguments. He also requested an independent review of
Cigna’s decision. (AR at 528.) The external review of Concilio’s records was performed
by IMED, Inc. (“IMED”). (AR at 528-33.) The independent reviewer found that the
information provided did not support a lumbar fusion. (AR at 531-32.) Specifically,
although the IMED reviewer (1) quoted a study that stated that “the body of literature
supports the fusion surgery as a viable treatment option for reducing pain and
improving function in patients with chronic low back pain refractory to non-surgical care
when a diagnosis of disc degeneration can be made,” and (2) recognized that there was
evidence that Concilio suffered from degenerative disc disease, it was determined that
“the records do not conclusively indicate that the patient has failed all lesser measures.”
(AR at 532.) The two-level fusion was deemed not medically necessary and the denial
was upheld. (Id.) It should be noted that IMED did not review Dr. Cain’s notes. (AR at
530-31.)
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On May 27, 2015, Cigna denied a final request for authorization of the two-level
fusion procedure. (AR at 574-79.) The request was made by Dr. Lloyd Mobley. (AR at
542-43.) Dr. Mobley performed the surgery on July 27, 2015. (AR at 721-29.) Concilio
was billed $377,233.50 for the operation. (AR at 598-606.) She filed the Complaint at
issue on June 13, 2016 in Denver District Court. (Docket No. 2). The case was then
removed to federal court on July 21, 2016. (Docket No. 1.)
II. LEGAL STANDARD
Judge Martinez has set forth the standard of review in an ERISA action as
follows:
ERISA governs employee benefit plans, including disability
benefit plans. 29 U.S.C. §§ 1101 et seq. “When an individual
covered by the plan makes a claim for benefits, the
administrator gathers evidence, including the evidentiary
submissions of the claimant, and determines under the
plan’s terms whether or not to grant benefits. If the
administrator denies the claim, the claimant may bring suit to
recover the benefits due to him under the terms of his plan.”
Jewell v. Life Ins. Co. of N. Am., 508 F.3d 1303, 1308 (10th
Cir. 2007) (internal quotation marks omitted; alterations
incorporated). Federal courts have exclusive jurisdiction over
such suits, as ERISA preempts most relevant state laws. 29
U.S.C. § 1144(a).
The Supreme Court has held that “a denial of benefits
challenged under [the civil enforcement provision of ERISA,
29 U.S.C.] § 1132(a)(1)(B) [,] is to be reviewed under a de
novo standard unless the benefit 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). In such a situation, the Court determines whether
the denial of benefits was arbitrary and capricious. Id.
Under the arbitrary and capricious standard, the
administrator’s decision need not be the only logical one or
8

the best one; the decision will be upheld provided that it is
“grounded on any reasonable basis.” Kimber v. Thiokol
Corp., 196 F.3d 1092, 1098 (10th Cir. 1999). “T he reviewing
court need only assure that the administrator’s decision falls
somewhere on a continuum of reasonableness—even if on
the low end.” Nance v. Sun Life Assurance Co. of Can., 294
F.3d 1263, 1269 (10th Cir. 2002).
Lamont v. Connecticut Gen. Life Ins. Co., 215 F. Supp. 3d 1070, 1077 (D. Colo. 2016).
Although Concilio originally argued that a de novo standard of review is
appropriate, she has since conceded that the Plan g ives Cigna the discretionary
authority to determine eligibility for benefits. (Docket No. 26 at p. 12.) As such, the
Court applies an “arbitrary and capricious” standard of review, and “the decision will be
upheld so long as it is predicated on a reasoned basis” or is supported by substantial
evidence. Adamson v. UNUM Life Ins. Co. of Am., 455 F.3d 1209, 1212 (10th Cir.
2006). Further, when an insurer is also the administrator of a plan, as is the case here,
it operates under an inherent conflict of interest, which is weighed as a factor in
determining whether there is an abuse of discretion. Holcomb v. Unum Life Ins. Co. of
Am., 578 F.3d 1187, 1192 (10th Cir. 2009). 2 The burden of showing abuse remains on
the plaintiff. McClenahan v. Metro. Life Ins. Co., 416 F. App’x 693, 697 (10th Cir. 2011)
(unpublished).
III. ANALYSIS
a. Did Concilio Exhaust Her Administrative Remedies?
Drs. Cain and Mobley did not appeal Cigna’s denial of their surgery authorization

2

The terms “abuse of discretion” and “arbitrary and capricious” are used
interchangeably in the Tenth Circuit. Weber v. GE Group Life Assur. Co., 541 F.3d
1002, 1010 n. 10 (10th Cir. 2008).
9

requests. Therefore, it must first be determined whether the merits of these denials are
properly before the Court.
“Although ERISA contains no explicit exhaustion requirement, courts have
uniformly required that participants exhaust internal claim review procedures provided
by the plan before bringing a civil action.” Holmes v. Colo. Coal. for Homeless Long
Term Disability Plan, 762 F.3d 1195, 1203 (10th Cir. 2014). See also Heimeshoff v.
Hartford Life & Acc. Ins. Co., 134 S. Ct. 604, 610 (2013) (“A participant’s cause of
action under ERISA accordingly does not accrue until the plan issues a final denial.”).
In the Tenth Circuit, the “exhaustion of administrative (i.e., company-or plan-provided)
remedies is an implicit prerequisite to seeking judicial relief.” McGraw v. Prudential Ins.
Co. of Am., 137 F.3d 1253, 1263 (10th Cir. 1998) (citation and q uotation marks
omitted). There are three general exceptions to this requirement: (1) when resort to
administrative remedies would be futile; (2) when the remedy provided is inadequate;
and (3) when a plan has failed to establish or follow claims procedures consistent with
the requirements of ERISA. Holmes, 762 F.3d at 1204.
Concilio argues that Drs. Cain and Mobley’s authorization requests are not
separate claims subject to exhaustion. Instead, she asserts that their requests and
recommendations are identical to those made and appealed by Dr. Rauzzino, and
therefore make up the same claim for benefits. Concilio also argues that any
administrative appeal of these denials would be futile because Cigna has a blanket
policy of never authorizing multilevel procedures for degenerative disc disease.
Concilio’s first argument is unavailing. The Plan provides for an appeal process

10

in the event Cigna makes an adverse decision as to the medical necessity of a
requested clinical procedure. (AR at 128-31.) This process includes a mandatory
appeal and a voluntary independent review. (Id.) Plan participants are expressly warned
that “[i]n most instances, you may not initiate a legal action against Cigna until you have
completed the Complaint or Adverse Determination Appeal process.” (AR at 131.) Drs.
Cain and Mobley were informed how to initiate an appeal after their preservice
authorization requests were denied. (AR at 420-21; 576-78.) They chose not to do so.
Only Dr. Rauzzino requested an appeal and, when that failed, an independent review.
(AR at 452-54; 528.)
Not only did Drs. Cain and Mobley not abide by the terms of the Plan, the Court
agrees with Cigna that while the procedure requested by the three physicians is the
same, the circumstances surrounding the requests were not identical. Dr. Cain’s
request for the two-level fusion came approximately one year before Dr. Mobley’s. This
passage of time alone gives the Court pause, especially because Dr. Cain noted on
Concilio’s first visit that the “natural course of this type of back pain is that most patients
get better on their own within three months.” (AR at 413.) Moreover, during that time,
Concilio received further treatment, including the discography and epidural injections.
Most importantly, Dr. Mobley’s diagnosis was different than that of Drs. Cain and
Rauzzino. Dr. Mobley diagnosed Concilio with spondylolisthesis (i.e., spinal instability)
(AR at 548), while the other doctors failed to note any instability. (AR at 409; 406; 430.)
Thus, the recommendations and requests of the doctors are not part of the same claim
for the purposes of administrative exhaustion.
Nevertheless, the Court agrees with Concilio that the failure to exhaust
11

administrative remedies as to Dr. Cain’s request can be excused as futile in this case.
The Tenth Circuit stated in an unpublished decision, “We agree with the Seventh
Circuit’s approach to evaluating a claim of futility and hold that in order to satisfy the
futility exception to the exhaustion requirement, plaintiff must establish that ‘it is certain
that his claim will be denied on appeal, not merely that he doubts that an appeal will
result in a different decision.’”Rando v. Standard Ins. Co., 182 F.3d 933 (10th Cir. 1999)
(table) (quoting Lindemann v. Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir. 1996))
(brackets omitted). While this decision is not binding, Judge Martinez has found that the
bar for showing futility is high. See Arapahoe Surgery Ctr., LLC v. Cigna Healthcare,
Inc., 171 F. Supp. 3d 1092, 1110 (D. Colo. 2016).
The Court finds that Concilio has cleared this high bar as to Dr. Cain, but not as
to Dr. Mobley. The Plan excludes from coverage “experimental, investigational or
unproven services.” (AR 108.) The Plan defines “experimental, investigational, or
unproven services” to be services that are, among other things, “determined by the
utilization review Physician to be ‘not demonstrated, through existing peer-reviewed,
evidence based, scientific literature to be safe and effective for treating . . . the
condition or sickness for which its use is proposed.’”Id. Cigna’s Lumbar Fusion Medical
Coverage Policy considers “lumbar fusion for treatment of multiple-level (i.e., >1 level)
degenerative disc disease” to be “experimental, investigational, or unproven.” (AR at
245.) Thus, the Plan does not cover multilevel lumbar fusions for degenerative disc
disease. Significantly, though, the Plan does cover this procedure for spondylolisthesis.
(AR at 242-43.)
Cigna argues that although it denied the various requests for preservice
12

authorization based on the Lumbar Fusion Medical Coverage Policy, an appeal by Drs.
Cain or Mobley showing that Concilio had completed a conservative treatment program
or had evidence of spinal instability could have led to a different result. This is
contradicted by all the evidence in the record as to Cigna’s treatment policies for
degenerative disc disease. Dr. Przybylski cited Cigna’s policy against performing
multilevel fusions for this condition over and over: he explained Cigna’s non-coverage
of multilevel fusion and the rationale behind it to Dr. Cain (AR at 417), and he told Dr.
Rauzzino why single-level fusion is covered but multilevel is not and stated why he
stopped performing two-level fusions in 2000. (AR at 443.) Moreover, in denying Dr.
Rauzzino’s appeal, Dr. Mino expressly states the Plan does not cover multilevel lumbar
fusion. (AR at 475.) Cigna also relies on this policy its legal briefs. (See Docket No. 29
at pp. 9-12.) In short, there is no doubt that Cigna would have denied any appeal by Dr.
Cain requesting a two-level lumbar fusion for degenerative disc disease because this
procedure is not covered under the Plan. At most, had Dr. Cain showed that Concilio
been diligent regarding a conservative treatment program, she may have met Cigna’s
criteria for a single-level fusion. Concilio never requested this procedure.
On the other hand, had Dr. Mobley appealed and demonstrated spinal instability,
there is a chance that he could have prevailed. Cigna does not have a blanket
prohibition of multilevel fusions for spondylolisthesis, and IMED stated in its
independent review that upon review of the record before it, “[t]here is no indication of
spondylolisthesis or other significant instability noted.” (AR at 532.) Thus, Concilio did
not exhaust her administrative remedies as to this claim.
For these reasons, the Court will consider Cigna’s denial of only Drs. Cain and
13

Rauzzino’s authorization requests.
b. Was Cigna’s denial arbitrary and capricious?
Next, the Court must determined whether Concilio has met her burden of
demonstrating that Dr. Przybylski, Dr. Mino, and/or IMED’s denials of the L4-S1 fusion
were arbitrary and capricious; i.e., whether they lacked a reasonable basis or were not
supported by substantial evidence. See McClenahan, 416 F. App’x at 697.In
determining whether there was substantial evidence, the Court will consider whether a
“reasonable mind might accept [it] as adequate to support the conclusion reached by
the [decisionmaker].” Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 382 (10th
Cir.1992) (citation omitted). While the decisionmaker must take into account “whatever
in the record fairly detracts from” its determination, substantial evidence requires “more
than a scintilla but less than a preponderance.” Id. (citation omitted).
Further, while it is obvious that the medical opinions of Drs. Cain and Rauzzino
differ from those held by Drs. Przybylski and Mino, Cigna was not required to “accord
special weight to the opinions of a claimant’s physician; nor may courts impose on plan
administrators a discrete burden of explanation when they credit reliable evidence that
conflicts with a treating physician’s evaluation.” Black & Decker Disability Plan v. Nord,
538 U.S. 822, 834 (2003). The Court will not weigh or evaluate the medical evidence in
record. Williams v. Metro. Life Ins. Co., 459 F. App’x 719, 726 n. 4 (10th Cir. 2012)
(unpublished). Thus, Concilio must establish that there was more than a mere
disagreement among physicians regarding appropriate treatment.

14

i. Dr. Przybylski
Concilio argues that her surgery was routine, and that Dr. Przybylski cherrypicked and “intractably relied” on the “Brox” and “Fritzell” studies to deny her benefits.
The Court disagrees with this characterization for several reasons. First, a review of the
record indicates that a multilevel fusion procedure for degenerative disc disease is not
the “routine” surgery Concilio makes it out to be. Dr. Cain’s notes indicate that he
viewed surgery as a last resort, given Concilio’s diagnosis. (AR at 409-10.) Dr.
Rauzzino also expressed reservations about performing what he described as an
“aggressive procedure” on someone Concilio’s age. (AR at 434.) Dr. Rauzzino’s
remarks certainly suggest that it would be reasonable to fall on the other side of the
debate.
As to the Brox and Fritzell studies, although Drs. Cain and Przybylski “discussed”
these studies in their Peer to Peer meeting, Dr. Przybylski also explained the rationale
for Cigna’s policy to not cover multilevel fusions for Concilio’s condition. Presumably, he
was referring to Cigna’s Lumbar Fusion Medical Coverage Policy, which contains a
summary of the medical literature–including, among others, the Brox and Fritzell
studies–related to standard approaches to lum bar surgeries. Dr. Cain also inquired into
Dr. Przybylski’s medical background and training and his experience with fusion
surgeries. (AR at 417.) The record demonstrates that Dr. Przybylski relied on more than
just two, “cherry-picked” studies to defend his denial to Dr. Cain.
Moreover, contrary to Concilio’s claim, it is not obvious from the record to what
extent Dr. Przybylski “relied” on the Brox and Fritzell studies. Importantly, Concilio and
the Lumbar Fusion Medical Coverage Policy’s summaries of the studies seem to be
15

largely consistent. For example, both would agree that the Fritzell study shows that in
certain circumstances, lumbar fusion was significantly superior to nonsurgical treatment
for chronic low back pain. (AR at 250.) Indeed, Dr. Przybylski spent an hour listening to
Dr. Rauzzino criticize Cigna’s non-coverage policy “given that one study shows no
benefit (but no worse) and another study shows benefit in 1 and 2 level fusions.” (AR at
442-43.) In response, Dr. Przybylski pointed out the limitations of these studies, and
encouraged Dr. Rauzzino to read the literature in greater depth. (Id.) This indicates that
it was Dr. Rauzzino who was, at least in part, relying on the quoted literature, while Dr.
Przybylski pushed back on his interpretation of the data. Moreover, in addition to
discussing the literature, Dr. Przybylski disclosed his own experience with patients with
degenerative disc disease, why he had not performed a two-level fusion since 2000,
and how he treated the disease without surgery. (Id.) Under these circumstances, the
Court cannot say that Dr. Przybylski’s decision lacked a reasonable basis or was not
supported by substantial evidence.
Concilio also contests Dr. Przybylski’s determination that she did not establish
that the ALIF procedure was medically necessary because she failed to meet certain
listed criteria. The Court admits it is confused by Dr. Przybylski’s reasoning here. The
criteria cited expressly relate to the medical necessity of a single-level lumbar fusion.
Whether Concilio met these conditions is irrelevant because she never requested a
single-level fusion. This does not change the Court’s overall analysis, however. Even
assuming Concilio had met the conditions set forth for medical necessity, Dr.
Przybylski’s finding that the procedure was experimental/investigational/unproven would
still preclude the authorization of a multilevel fusion.
16

In sum, the record indicates that Dr. Przybylski’s denial of benefits had a
reasonable basis and was supported by substantial evidence, which includes the
Lumbar Fusion Medical Coverage Policy and his own medical experience. Concilio has
not presented sufficient evidence to show that Dr. Przybylski was biased. Therefore,
Concilio has failed to meet its burden that Dr. Przybylski abused his discretion.
ii. Dr. Mino
Concilio argues that Dr. Mino failed to provide any explanation or analysis in his
decision to uphold the denial of benefits. The Court disagrees. Consistent with Dr.
Przybylski determinations, Dr. Mino stated that multilevel lumbar fusion for degenerative
disc disease is considered experimental, investigational, and/or unproven and was
therefore not covered by the Plan. (AR at 477-77.) He based his decision on a review of
Dr. Rauzzino’s records and cited to Cigna’s Lumbar Fusion Medical Coverage Policy.
(AR at 475.) He provided a link to the policy. (Id.) The policy contains a relatively
thorough review of the low back pain treatment. It recognizes that there have been few
published clinical trials that have compared lumbar fusion to non-operative care, and
suggests the proof of efficacy for surgery is unclear. (AR at 248.) The evidence cited is
sufficient to support Dr. Mino’s determination that the proposed ALIF procedure was not
covered under the Plan.
iii. IMED
Finally, Concilio objects to the independent reviewer’s decision to affirm the
denial of benefits. Concilio notes that IMED determined that fusion surgery was
effective and appropriate for the treatment of degenerative disc disease, but based its

17

denial on the fact that “the records do not conclusively indicate that [Concilio] failed all
lesser treatments.” (AR at 532.) Concilio argues that Cigna’s failure to provide IMED
with Dr. Cain’s records undermines IMED’s decision. The Court is unpersuaded.
First, Dr. Cain’s records do not “conclusively indicate” that lesser, non-surgical
treatments failed. When he initially evaluated Concilio, Dr. Cain stressed that she
should focus on conservative care and core stabilizing exercises, despite Concilio’s
complaint that physical therapy aggravated her pain. (AR at 415.) Two months later,
Concilio admitted to Dr. Cain that she had not been doing her exercises. (AR at 410.)
Dr. Cain reiterated the importance of these exercises, and also told her to also focus on
losing weight. (Id.) When she reported back in April, she had been unable to lose
weight and, while she was walking regularly, she could not perform her other exercises.
(AR at 406.) She and Dr. Cain then spoke about ways to modify her exercises, but the
focus seems to have already been on surgical intervention. (AR at 406.) Given this
spotty record of compliance with instructions regarding conservative treatment, it is
surprising that in May 2014, Dr. Cain noted that Concilio’s lower back pain had been
worsening “despite extensive non operative treatment.” (AR at 396.)3 This conclusion
finds little support in the record.
Moreover, IMED did review Dr. Rauzzino’s records, and he repeatedly stated
that Concilio failed conservative therapy. He specified in November 2014 that she had
“over a year of consecutive months of medical management including core stabilization
exercises, nonsteroidal anti-inflammatories, steroid medications, physical therapy with

3

For example, swimming was suggested as an exercise. (AR at 407.) There is
no indication that Concilio followed instructions to swim 2-3 times per week.
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both active and passive modalities, and activity modification.” (AR at 455.) Some of this
is inaccurate and even undermined by Dr. Cain’s treatment notes. For example,
Concilio admitted in December 2013 she not been performing her core stabilization
exercises, and thereafter she had generally been physically unable to do much more
than walk for exercise. Moreover, she told Dr. Cain that she had “some” physical
therapy. (AR at 415.) According to Dr. Mobley’s notes, she only went to a total of six or
seven physical therapy visits during this entire period of time. (AR at 548.) It is also
unclear what, if any, conservative treatment Concilio actually pursued while under Dr.
Rauzzino’s care. Even without this contradictory evidence, however, IMED still found
that, based on the medical records, including Dr. Rauzzino’s treatment notes, Concilio
had failed to exhaust lesser treatment options. The Court does find this conclusion to
be arbitrary or capricious.
IV. RECOMMENDATION
For the foregoing reasons, it is hereby RECOMMENDED that Plaintiff Rebecca
Concilio’s Complaint (Docket No. 2) be DISMISSED.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file

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and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions,
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,
91 F.3d 1411, 1412-13 (10th Cir. 1996).

Dated:

November 30, 2017
Denver, Colorado

/s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge

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