Kaemmerer v. Cargill Incorporated et al
Filing
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ORDER DENYING Motion for Summary Judgment filed by Devin Kaemmerer [Doc. 23] and GRANTING Motion for Summary Judgment filed by Cargill Incorporated and BCBSM, Inc. [Doc. 25]. Signed by Judge Staci M. Yandle on 1/15/2016. (mah).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEVIN KAEMMERER,
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Plaintiff,
vs.
CARGILL INCORPORATED and
BCBSM, INC., d/b/a BLUECROSS and
BLUESHIELD OF MINNESOTA,
Defendants.
Case No. 15-CV-856-SMY-DGW
MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Devin Kaemmerer brings this ERISA action against Defendants Cargill
Incorporated (“Cargill”) and BCBSM, Inc., d/b/a BlueCross and BlueShield of Minnesota
(“BCBSM”) pursuant to 29 U.S.C. § 1132(a)(1)(B) alleging denial of health plan benefits.
Before the Court are the parties’ cross-motions for summary judgment (Docs. 23 and 25). The
Court has carefully considered the briefs and evidence submitted by the parties and, for the
reasons set forth below, Plaintiff’s Motion for Summary Judgment is DENIED (Doc. 23) and
Defendants’ Motion for Summary Judgment is GRANTED (Doc. 25).
BACKGROUND
Plaintiff is a participant in Cargill’s Medical Plan (Doc. 21-5, pp. 111-112). BCBSM is
the Plan’s claims administrator (Doc. 21-3, p. 16). Under the Plan, BCBSM has final authority
regarding claim determinations (Doc. 21-5, pp. 109-110). If BCBSM determines a claimant
does not have a covered expense or the benefit is not covered, no benefits are payable
under the Plan. (Doc. 21-4, p. 90). BCBSM's decisions are binding (Doc. 21-5, p. 109).
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Under the Plan, medically necessary1 spinal fusions are covered following prior authorization
from BCBSM (Doc. 21-4, p. 76, p. 84).
On July 18, 2014, Plaintiff saw his primary care physician, Dr. Todd Vonderheide, for
complaints of continued back pain radiating down his right leg (Doc. 21-9, p. 326).
Dr.
Vonderheide referred Plaintiff to Dr. Thomas Lee, an orthopedic surgeon, for surgical
consultation. Id. at 327. On August 5, 2014, Plaintiff was evaluated by a nurse practitioner in
Dr. Lee’s office as part of a surgical consultation (Doc. 21-9, pp. 319-320). Plaintiff’s chief
complaints were low back pain and numbness radiating into his right leg down to his toes. Id.
Plaintiff felt that the symptoms, present for approximately one year, were getting
progressively worse. Id. X-rays taken that day showed Plaintiff h a d spondylolisthesis a t
L4-L5 a n d a fusion at L5-S1. Id. The recorded Oswestry Disability Index (“ODI”), a form of
functional assessment, was 24%. Id. The office note also stated Plaintiff would follow up with
Dr. Lee after obtaining a full-length standing x-ray (Doc. 21-9, p. 320). The x-ray, taken on
August 30, 2014, showed mild scoliosis and spondylosis with a transitional vertebrae at
L5-S1 (Doc. 21-9, pp. 321-322).
Dr. Lee examined Plaintiff on September 8, 2014 (Doc. 21-9, p. 318). During the
examination, Plaintiff complained of low back pain, right lower extremity symptoms and that he
was unable to perform daily activities. Id. Dr. Lee reviewed prior x-rays and two 2013 MRIs.
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The Plan defines “medically necessary” as “health care services that a physician, exercising prudent
clinical judgment, would provide to a patient for the purpose of preventing, evaluating, diagnosing or
treating an illness, injury, disease or its symptoms, and that are: (a) in accordance with generally
accepted standards of medical practice; (b) clinically appropriate, in terms of type, frequency, extent,
site and duration, and considered effective for the patient's illness. injury or disease; and (c) not
primarily for the convenience of the patient, physician, or other health care provider, and not more
costly than an alternative service or sequence of services at least as likely to produce equivalent
therapeutic or diagnostic results as to the diagnosis or treatment of that patient's illness, injury or
disease…”
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Id. The September 2013 MRI showed a mild disc dislocation at L4-L5 with minimum diffuse
disc bulge, a tiny midline disc protrusion, with mild spinal canal stenosis (Doc. 21-7, p.
247). Dr. Lee opined that Plaintiff had L4-L5 spondylolisthesis, L3-L4/L4-L5 protrusions with
spinal stenosis (Doc. 21-9, p. 320). Dr. Lee noted Plaintiff only had a small coronal Cobb
(Doc. 21-10, p. 356).
After reviewing his options, Plaintiff decided to proceed with
surgery. Id.
On November 5, 2014, Dr. Lee submitted a prior authorization request to BCBSM for
Plaintiff’s spinal fusion surgery (Doc. 21-9, pp. 316-332). The authorization included office
notes, x-rays from March 2013 and August 2015, the September 2013 MRI report, and
operative reports for epidural injections and radiofrequency denervation. Id. On November
19, 2014, BCBSM denied the request as not medically necessary (Doc. 21-9, p. 334). The
rationale provided was that Plaintiff’s documentation did not meet the criteria listed in the
Spinal Fusion: Lumbar, Policy IV-87 (the “Policy”) (Doc. 21-9, pp. 340-343). Specifically,
Plaintiff did not submit physical therapy records, ODI s c o r e s from the first and last physical
therapy sessions, or documentation from a physical therapist that he was unable to complete
a three month course of therapy due to progressively worsening pain and disability. Id.
The Policy lists four categories regarding when a lumbar fusion may be medically
necessary (Doc. 21-7, pp. 246-250, Doc. 21-8, pp. 251-253).
Pursuant to the Policy,
documentation supporting the categories must be included in the prior authorization, including:
(1) documented completion of physical therapy or, if unable to complete the required physical
therapy, documentation from a physical therapist describing the patient’s inability to complete
physical therapy; (2) functional assessment measured by the ODI demonstrating less than 30%
improvement in ODI score between the first and last physical therapy session or continued ODI
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score of greater than or equal to 40% at the conclusion of physical therapy; (3) documentation
from a primary care physician or mental health professional showing absence of untreated,
underlying, contributory mental health condition; and (4) written report from a radiologist
describing findings from spinal diagnostic imaging that demonstrate one of seven conditions,
such as scoliotic curve of greater than 50 degrees, spinal instability, spinal cord compression, or
degenerative disc disease limited to 1 to 2 levels (Doc. 21-7, pp. 229-231, pp. 249-250).
On December 23, 2014, Dr. Lee referred Plaintiff to a physical therapist (Doc. 21-9, p.
347).
Plaintiff completed six physical therapy sessions between December 23, 2014, and
January 16, 2015 (Doc. 21-11, p. 418). On January 23, 2015, Dr. Lee submitted a second prior
authorization, which BCBSM considered an appeal of the original prior authorization (Doc. 219, pp. 346-374). The appeal included physical therapy records from the six sessions completed
by Plaintiff (Doc. 21-9, pp. 347-353).
BCBSM consulted with a peer-reviewer, a board-certified orthopedic surgeon, who
determined Plaintiff did not meet the Plan’s required criteria for coverage under the Policy (Doc.
21-11, pp. 430-431). Specifically, Plaintiff did not fulfill the Policy’s Part IV criteria for chronic
discogenic back pain nor had Plaintiff completed the requisite number of physical therapy
sessions (Doc. 21-11, p. 431). Further, the documentation did not include physical therapy
records for the three prior months, ODI scores, a psychological evaluation, or recent imaging
study. Id. On February 9, 2015, BCBSM denied Plaintiff’s appeal. Id. In the denial letter,
BCBSM explained the reasons for the denial and advised Plaintiff that if he had information to
provide regarding the appeal, to contact the BCBSM liaison directly within 10 calendar days
(Doc. 29-12, p. 480). A BCBSM representative spoke to Plaintiff by telephone and identified the
missing documentation that BCBSM needed to consider Plaintiff’s coverage request (Doc. 21-
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12, pp. 471-477). Plaintiff did not submit any additional documentation within the 10 days. On
February 20, 2015, BCBSM sent a final appeal decision letter to Plaintiff denying coverage
(Doc. 21-12, pp. 485-488).
BCBSM advised Plaintiff that he could appeal to BCBSM’s
Corporate Appeal Committee within 60 days or request an external review that would make an
independent decision about his appeal. Id.
On May 6, 2015, Plaintiff requested an external review (Doc. 21-12 p. 490). Plaintiff
submitted additional documentation to the external reviewer, including: (1) an opinion letter
from Dr. Vonderheide stating Plaintiff had no untreated or underlying mental condition,
depression, alcohol or drug abuse; and (2) an opinion letter from his physical therapist stating
that Plaintiff was seen for a total of six therapy sessions between December 23, 2014, and
January 16, 2015 and that he scored a 60% impairment rating on February 27, 2015, and could
not complete physical therapy because of pain and paresthesia (Doc. 21-13, pp. 521-522). On
June 23, 2015, the external reviewer determined that Plaintiff’s requested lumbar fusion was not
medically necessary (Doc. 21-13, p. 548). The reviewer opined that fusing the lumbar spine in
the absence of instability for multiple levels was not consistent with the standards of good
medical practice in the United States. Id. at 549.
DISCUSSION
Summary judgment is proper only if the moving party can demonstrate there is no genuine
issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Ruffin-Thompkins v. Experian
Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The moving party bears the burden of
establishing that no material facts are in genuine dispute; any doubt as to the existence of a genuine
issue must be resolved against the moving party. Lawrence v. Kenosha County, 391 F.3d 837, 841
(7th Cir. 2004).
Cross-motions for summary judgment do not automatically mean that all
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questions of material fact have been resolved. Franklin v. City of Evanston, 384 F.3d 838, 842
(7th Cir.2004). The Court must evaluate each motion independently, making all reasonable
inferences in favor of the nonmoving party with respect to each motion. Id. at 483. Here, the
parties do not dispute the material facts which are contained in the administrative record (see
Doc. 21). Further, the parties agree that the Court should review BCBSM’s decision under a
deferential “arbitrary and capricious’ standard (see Docs. 23, 25).
Accordingly, the Court
evaluates the merits of both motions collectively.
Under ERISA’s civil enforcement provision, § 1132(a)(1)(B), judicial review of a plan
administrator's benefits determination is de novo unless the plan grants discretionary authority to
the administrator. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103
L.Ed.2d 80 (1989). Where a qualifying plan gives the administrator discretionary authority to
determine eligibility for benefits, the court shall review the administrator's decision to deny
benefits under the arbitrary and capricious standard. Mote v. Aetna Life Ins. Co., 502 F.3d 601,
606 (7th Cir. 2007); Hackett v. Xerox Corp., 315 F.3d 771, 773 (7th Cir. 2003). To determine
whether a plan administrator has discretionary authority, the court looks to the plain language of
the plan. Postma v. Paul Revere Life Ins. Co., 223 F.3d 533, 538 (7th Cir. 2000).
In this case, the Court reviews the decision regarding benefits under the arbitrary and
capricious standard as the parties agree that the Plan provides for discretionary authority. Under
the arbitrary and capricious standard the Court may overturn an administrator's decision only if
the decision is “downright unreasonable.” Mote, 502 F.3d at 606. This standard is deferential,
but it is not a “rubber stamp,” as the Court will not uphold a denial of benefits if the plan
administrator fails to articulate specific reasons for rejecting evidence and denying the claim.
Black v. Long Term Disability, 582 F.3d 738, 745 (7th Cir. 2009) (citing Williams v. Aetna Life
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Ins. Co., 509 F.3d 317, 324 (7th Cir. 2007)). The court's ultimate goal is to ensure that the plan
administrator's decision has rational support in the record. See Speciale v. Blue Cross & Blue
Shield Ass'n, 538 F.3d 615, 621 (7th Cir. 2008). In making this determination, the Court must
focus on the evidence before the administrator at the time of the final decision. Majeski v.
Metropolitan Life Insurance Co., 590 F.3d 478, 483 (7th Cir.2009); Brown v. Retirement
Committee of Briggs & Stratton Retirement Plan, 797 F.2d 521, 532 (7th Cir.1986). The
administrator’s determination will be upheld “as long as (1) it is possible to offer a reasoned
explanation, based on the evidence, for a particular outcome, (2) the decision is based on a
reasonable explanation of relevant plan documents, or (3) the administrator has based its decision
on a consideration of the relevant factors that encompass the important aspects of the problem.”
Williams, 509 F.3d at 321–22.
Plaintiff argues that the denial of his surgery for failing to provide the requisite
documentation was arbitrary and capricious because Plaintiff eventually submitted the omitted
documentation to the independent external reviewer. Defendants counter that Plaintiff failed to
submit documentation supporting the requested surgery despite several opportunities.
Defendants further assert that, based on the information available to it at the time, BCBSM
reasonably determined that surgery was not medically necessary.
The Policy provided specific criteria to support the surgery and listed the essential
documentation necessary for authorization. There is no dispute that Plaintiff failed to provide
the documentation required by the Policy. Plaintiff does not deny that at the time of the
November 2014 prior authorization and the January 2015 appeal, BCBSM did not have
documentation establishing: (1) completion of physical therapy or the inability to complete the
required physical therapy; (2) Plaintiff’s functional assessment measured by ODI; (3) opinion of
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Plaintiff’s primary care physician or a mental health professional demonstrating an absence of a
contributory mental health condition; or (4) findings of a radiologist from spinal diagnostic
imaging performed within 12 months of the prior authorization demonstrating that Plaintiff
suffered from spinal instability, spinal cord compression or degenerative disc disease limited to 1
to 2 levels. Plaintiff’s contention that he eventually submitted the requisite documentation for
the May 2015 independent external review is unavailing. Only information that was timely
before BCBSM at the time of its reviews may be utilized to demonstrate that BCBSM’s
decisions were unreasonable. See Williams, 509 F.3d at 321-324. Accordingly, the Court finds
that it was reasonable - not arbitrary or capricious - for BCBSM to deny Plaintiff’s fusion
surgery based on Plaintiff’s failure to comply with the straightforward documentation required
by the Plan. See Senkier v. Hartford Life & Accident Ins. Co., 948 F.2d 1050, 1053 (7th
Cir.1991)(unambiguous provisions in ERISA plan documents must be interpreted in accordance
with their plain meaning and enforced as written).
For the foregoing reasons, Plaintiff’s Motion for Summary Judgment is denied and
Defendants’ Motion for Summary Judgment is granted.
This action is DISMISSED with
prejudice. The Clerk of Court is DIRECTED to enter judgment in favor of Defendants Cargill
Incorporated and BCBSM, Inc., d/b/a BlueCross and BlueShield of Minnesota and against
Plaintiff Devin Kaemmerer.
IT IS SO ORDERED.
DATED: January 15, 2016
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge
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