Doug Burton v. Blue Cross Blue Shield of Kansas City et al

Filing 82

MEMORANDUM AND ORDER denying 64 plaintiff's Motion for Summary Judgment; granting 66 defendant's Motion for Summary Judgment; and denying 70 plaintiff's Motion to Strike. Signed by Chief Judge J. Thomas Marten on 7/31/14. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Doug Burton, in his capacity as executor
of the Estate of Marsha Burton,
Plaintiff,
vs.

Case No. 13-2099-JTM

Blue Cross and Blue Shield of Kansas
City,
Defendant.

MEMORANDUM AND ORDER
This is an action under the Employee Retirement Income Security Act (ERISA), 29
U.S.C. § 1001 et seq., by Doug Burton, in his capacity as executor for the estate of his late
wife Marsha, alleging that the defendant wrongfully denied benefits for radiation therapy
treatments for his wife’s cancer. Both parties have moved for summary judgment. The
court finds that coverage for the particular radiation treatment at issue is excluded by both
the explicit terms of the Health Plan administered by Blue Cross, and because the
treatments were experimental or investigative procedures, as defined by the Plan.
Summary judgment is proper where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show there is no
genuine issue as to any material fact, and that the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the
court must examine all evidence in a light most favorable to the opposing party. McKenzie
v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary
judgment must demonstrate its entitlement to summary judgment beyond a reasonable

doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party
need not disprove plaintiff's claim; it need only establish that the factual allegations have
no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323
(10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon
mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving
party must come forward with specific facts showing the presence of a genuine issue of
material fact for trial and significant probative evidence supporting the allegation.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried
its burden under Rule 56(c), the party opposing summary judgment must do more than
simply show there is some metaphysical doubt as to the material facts. "In the language
of the Rule, the nonmoving party must come forward with 'specific facts showing that
there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the
principal purposes of the summary judgment rule is to isolate and dispose of factually
unsupported claims or defenses, and the rule should be interpreted in a way that allows
it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
In addition to the summary judgment motions, the plaintiff has also moved to strike
the Declaration of Stacy Woods, which Blue Cross attached in support of its summary
judgment motion, on the grounds that the document was not previously produced
pursuant to Fed.R.Civ.Pr. 26(a)(1)(A)(ii). Alternatively, plaintiff requests permission to
supplement the evidentiary record.
The Motion to Strike is denied. The submission of evidentiary declarations in
support of summary judgment motions is explicitly authorized by Rule 56, and Ms. Woods
was timely and explicitly identified by Blue Cross as a person with knowledge of the
administrative process. The plaintiff has presented no authority suggesting the
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requirement to timely disclose documents under Rule 26 somehow precludes a party from
offering subsequently-obtained affidavits in support of a summary judgment motion.
Woods’s affidavit references and explains the administrative record itself, and is
properly before the court. Such evidence does not address the merits of Blue Cross’s
decision and is entirely appropriate for the purpose of explaining “the manner in which
defendant made its decision.” Buchanan v. Reliance Standard Life Insurance, 5 F.Supp. 1172,
1181 (D.Kan. 1998) (emphasis in original). See also Niedens v. Continental Casualty, No. 052176-CM, 2007 WL 956647, *4 (D.Kan. 2007) (affidavit permissible if it “explains how the
plan administrator reached its decision”), aff’d on other gds., 258 Fed.Appx. 216 (10th Cir.
2007).
Further, the court denies leave to supplement the record. The issue before the court
is whether the administrator’s decision was arbitrary and capricious, and accordingly the
court looks only to the materials which were actually utilized in that decision. Holcomb v.
Unum Life Insurance, 578 F.3d 1187, 1192 (10th Cir. 2009); Fought v. Unum Life Insurance, 379
F.3d 997, 1003 (10th Cir.2004). Supplementation is permissible only in “the unusual case,”
Hall v. Unum Life Insurance, 300 F.3d 1197, 1203 (10th Cir.2002). “The party moving to
supplement the record or engage in extra-record discovery bears the burden of showing
its propriety.” Murphy v. Deloitte & Touche Group Ins. Plan, 619 F.3d 1151, 1163 (10th
Cir.2010). Here, the plaintiff has failed to meet the burden of demonstrating the
appropriateness of such supplementation, and the request is accordingly denied.

Findings of Fact
Doug Burton was employed by Westlake Hardware, Inc., and he and his wife,
Marsha Burton (Burton), had health care benefits under the terms of the Health Plan during
the period relevant to this case. Blue Cross is an insurer of the Westlake group health
policy. The Health Plan at issue is an employee benefit “Plan” under ERISA as defined by
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29 U.S.C. § 1002(1). Marsha Burton was a “participant” of the Plan as defined by 29 U.S.C.
§ 1002(7). The Plan authorizes Blue Cross as the claims administrator to determine
eligibility for benefits under the Policy.
In 1990, Mrs. Burton was diagnosed with ovarian cancer. In 2008, her ovarian cancer
metastasized to her liver and abdominal region. In April, 2011, a CT scan revealed slightly
larger lesions and new tiny mesenteric nodules on her liver.
Burton’s physicians could not perform traditional radiation treatments, because of
the sensitivity of the liver and the risk of damage to nearby healthy organs.
In May of 2011, Marsha Burton was examined by Dr. Ralph S. Wolfstein of the Elite
Oncology Medical Group in Los Angeles, California. Dr. Wolfstein believed that
intensity-modulated radiation therapy (IMRT) might help in Burton’s treatment. IMRT
involves the manipulation of radiation beams to conform to the shape of a tumor.
At some point in May, Burton submitted a pre-service claim for benefits to Blue
Cross requesting coverage for the IMRT treatment.
Burton received IMRT treatments at Elite Oncology between May 23 and June 17,
2011. The results of the treatment appear mixed. It appears that the size of most of the liver
tumors were reduced, but one lesion appeared to have become more metabolically active.
Burton survived for one year following the treatment.
Section D of the Health Plan excludes services that are “Experimental or
Investigative as determined by Us at Our Sole discretion.” Section A of the Plan defines
“Experimental/Investigative Services,” and lists four bases for a service to be considered
experimental or investigative. These include whether such determination is consistent with
the Blue Cross and Blue Shield Association’s uniform medical policy and if the local
Medical Policy Committee, utilizing authoritative sources of information and expertise,
determines that the service does not meet criteria set forth in the Health Plan, or that there

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is not sufficient evidence-based peer reviewed studies to support the safety and efficacy
of the service.
After reviewing the pre-service claim in mid-May 2011, Blue Cross claims review
determined that IMRT is investigative for gynecological and abdominal cancers according
to the IMRT Medical Policy and the terms of the Plan.
On June 16, 2011, one of Blue Cross Medical Directors, Dr. Loretta Britton, confirmed
the reviewer’s determination that IMRT for treatment of malignant neoplasm of ovary is
investigative. Dr. Britton recommended denial of her claim because IMRT for Mrs. Burton
is not a benefit under the Health Plan. On June 20, 2011, Blue Cross denied Burton’s
pre-treatment claim because the requested treatment is experimental/investigative and not
covered by the Health Plan.
The notice stated:
Your claim has been carefully processed according to the terms of your
health plan. If you disagree with our decision, you may request a review of
the claim. You must send a written request within 180 days of receiving this
notice. You should explain why you disagree and you may provide
additional information about the claim. You also have the right to request
guidelines or rules we used in denying your claim.
The next day, Blue Cross received the first level post-service appeal request
submitted by Burton’s oncologist, Dr. Wolfstein, for claims related to IMRT. Dr. Wolfstein
stated that Burton had received multiple treatments of hypothermia coupled with radiation
therapy. He wrote that hypothermia in his opinion was “not unsafe, experimental or
investigational,” that it was supported in prior trials, and that it has been approved for
reimbursement by Medicare and other Blue Cross entities. However, Dr. Wolfstein’s letter
appears to address the general status of hypothermia coupled with radiation therapy. It
does not address whether IMRT is an accepted treatment for the specific illness suffered
by Burton – ovarian and liver cancer.
One July 29, 2011, Blue Cross mailed a letter to Burton acknowledging its receipt of
the appeal. It also asked her for any additional written comments, documents, or other
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materials in support of her appeal. Blue Cross notified Burton on August 25, 2011 that her
appeal was under review.
MES Solutions provides independent medical evaluation services, including peer
review of physician recommended treatment and medical procedures, for providers of
health care benefits including Blue Cross. Blue Cross asked MES to review Burton’s appeal.
MES instructed Blue Cross to send Burton’s appeal of the denial of her claim to Dr. Robert
Marciniak, who is board certified in Internal Medicine, with a sub-specialty certificate in
Medical Oncology, and a claim reviewer for MES.
In August, 2011, Dr. Marciniak wrote that Mrs. Burton’s requested treatment for
ovarian cancer is considered an investigative treatment. He stated:
Given the absence of any literature to support this use, the scientific evidence
does not permit conclusions regarding the effect of this treatment on health
outcomes. As such, it meets the plan definition of investigational. The
requested treatment is not supported by the medical literature, and is
investigational per the plan definition; the denial of coverage was made
correctly.
After reviewing Dr. Marciniak’s letter, Dr. Britton wrote a concurrence and
recommended affirming denial.
In asking MES to review to claim, Blue Cross mistakenly gave Dr. Marciniak its
Policy 8.01.46 (which applies to use of IMRT for treating breast and lung lesions), rather
than 8.01.49 (which applies to cancer of the abdomen and pelvis). However, as noted in his
report, Dr. Marciniak did not rely on Policy 8.01.46. He found that scientific evidence does
not support the requested treatment, and that IMRT for Burton’s condition is investigative
per the Health Plan definition and that the denial of coverage was correct. This
determination that IMRT for cancer of the ovary is investigative is consistent with the
IMRT Medical Policy.
On August 31, 2011, Blue Cross denied Burton’s appeal on the grounds that IMRT
is experimental and not covered under the Health Plan.

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On September 12, 2011, Blue Cross received a letter from Burton’s legal counsel,
Talia Ravis, asking for a copy of the appeal file.
On November 2, 2011, Blue Cross received a second level post-service appeal
request by Dr. Wolfstein.
In support of her appeal, Burton included a letter from Dr. James Bicher of Elite
Oncology. Bircher wrote that the treatments given Burton “resulted in promising good
results.” He wrote that IMRT is “not unsafe, experimental, or investigational,” and noted
that “Medicare pays for it, as do major insurance companies including Aetna, Cigna,
United Health and many more.” However, as with the earlier letter from Dr. Wolfstein,
Bicher’s letter did not address the particular application of IMRT to ovarian or liver cancer.
Blue Cross acknowledged the appeal on November 9, 2011, and proposed December
1, 2011, for the second level appeal panel hearing. Blue Cross again retained MES to process
that appeal.
MES appointed Harold E. Kim, M.D., Board Certified in Radiology with
subspecialty in Radiation Oncology, to serve as the lead reviewer in this appeal. In
conducting his review, Dr. Kim consulted Burton’s attending physicians, Drs. Birchner and
Wolfstein, and two other MES peer Reviewers, Mohamedyakub Puthwala, M.D., who is
Board Certified in Radiology and Radiation Oncology, and Kenneth Bastin, M.D., who is
Board Certified in Radiology and Radiation Oncology.
On April 26, 2012, the denial of Burton’s request for IMRT was reviewed by a
Second Level Grievance Panel, consisting of five voting members, including the three MES
physician reviewers, Robin Randal, a director-level Blue Cross representative; and Eugene
Marti, a Blue Cross policyholder. After considering Burton’s request and appeal, the
Second Level Grievance Panel unanimously affirmed Blue Cross’s denial of Burton’s claim
for IMRT under the Health Plan because the treatment is experimental/investigative within
the terms of the Health Plan, and thus it was not covered by the Plan.
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On April 27, 2012, Dr. Kim and the two other MES reviewers, Dr. Puthwala and Dr.
Bastin, issued a Peer Review Report summarizing the findings of the MES reviewing
physicians. Dr. Kim wrote in the Report:
There are no published clinical outcome evidence (local control, survival,
quality of life) on the IMRT of metastasis in the liver in the setting of
progressive metastatic disease such as in the lung and peritoneaum. With the
lack of published clinical outcome data to support IMRT in this member’s
condition, the scientific evidence does not permit conclusions regarding the
effect of IMRT on health outcomes. Therefore, the use of IMRT in this
member’s case meets criteria of investigational/experimental as defined by
Blue KC.
Dr. Puthawala wrote:
There are no studies demonstrating a better outcome for a widely metastatic
disease by using IMRT. This use of IMRT for this patient’s condition meets
the definition as investigational/ experimental.
Dr. Bastin wrote:
There are no high-grade evidence-based peer review studies published in the
medical literature to support the safety and efficacy of the technology IMRT
is a recognized treatment option for various cancer, including brain tumors
and head/neck cancer. No evidence supports this technology use for the
particular patient.
All three independent reviewing physicians determined that the proposed IMRT is
investigative/experimental as defined by Blue Cross and that the treatment is not
supported by medical literature, and affirmed Blue Cross’s denial of Mrs. Burton’s claim.
During the Second Level Grievance Panel, Ravis asked if Blue Cross would give the
member a chance to appeal the denial, since the incorrect medical policy was utilized in the
first level appeal review. Blue Cross informed Ravis that the matter would be reviewed.
Following the Second Level Grievance Panel, on April 26, 2012, Blue Cross Medical
Director Dr. Sitzmann reviewed the claim file and Ravis’s correspondence to make sure
that the denial of Mrs. Burton’s claim for IMRT was correct under the Health Plan.
On May 3, 2012, Blue Cross notified Ravis that because it gave the first level
reviewer, Dr. Marciniak, an inapplicable Blue Cross and Blue Shield Association IMRT

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Medical Policy, that Mrs. Burton could have an additional seven days to submit additional
information in support of her claim if she wished Blue Cross to conduct another review.
Thereafter, Blue Cross granted an additional thirty days to supply additional
information per Ravis’s request.
However, instead of asking for additional review and supplying more information,
Ravis requested that Blue Cross reverse its denial of Burton’s claim.
On June 5, 2012, Blue Cross informed Ravis that it would not conduct any further
appeal of Mrs. Burton’s claims.
Section D of the Health Plan sets forth the Exclusions and Limitations, including for
services, supplies, equipment, and care that are “Experimental or Investigative as
determined by Us [Blue Cross] at Our sole discretion.” Section A defines a drug, device,
or procedure as “Experimental/Investigative Services” if
a.

The drug or device cannot be lawfully marketed without approval of
the United States Food and Drug Administration and approval for
marketing has not been given at the time the drug or device is
furnished; or

b.

Reliable evidence shows that the drug, device or medical treatment or
procedure:
(1)

(2)
(3)
c.

Is provided as part of a Phase I or Phase II clinical trial, as the
experimental or research arm of a Phase III clinical trial, or in any
other manner that is intended to evaluate the maximum tolerated
dose, safety, toxicity, or efficacy as its objective;
Is provided pursuant to a written protocol or other document that
lists an evaluation of its safety, toxicity, or efficacy as its objective;
or
Is Experimental/Investigative per the informed consent document
utilized with the drug, device or medical treatment; or

The national Blue Cross and Blue Shield Association's uniform medical
policy (as amended from time to time) has determined the device or
medical treatment or procedure ("technology") is investigational based
on the following criteria:
(1)
(2)
(3)

Final approval from the appropriate governmental regulatory
bodies has not been received; or
Scientific evidence does not permit conclusions concerning the effect
of the technology on health outcomes; or
The technology does not improve the net health outcome; or
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(4)
(5)
d.

The technology is not as beneficial as established alternatives; or
The improvement is not attainable outside the investigational
settings; or

To the extent paragraphs a., b., and c. above do not apply, Our local
Medical Policy Committee, utilizing additional authoritative sources of
information and expertise, has determined that the technology does not
meet the criteria listed in paragraph c. 1-5 above or there is not
sufficient evidence based peer reviewed studies published in medical
literature to establish the safety and efficacy of the technology.

The IMRT Medical Policy in effect here explicitly states that IMRT is “considered
investigational for the treatment of tumors” in the upper and lower abdomen, and the
pelvis. The IMRT Medical Policy is reviewed on an annual basis and updated for current
medical research (Blue Cross 0756-0766).
Blue Cross follows standard policies and procedures in administering benefit claims
under its health insurance policies, and maintains the Blue Cross and Blue Shield of Kansas
City Employee Handbook (“Employee Handbook”), which is updated from time to time.
This Handbook provides that promotions are given on the basis of job performance criteria.
The Appeals Department of Blue Cross is responsible for overseeing insureds’
benefit determination appeals. From time to time, this Department and the management
of Blue Cross set performance goals for the Appeals Department. In “Appeals Department
Goals & Roles – 2011,” the goals of the Appeals Department include those for timeliness,
accuracy, and quality of performance. These goals do not include a financial quota or a
quota for appeals denials or approvals.
The procedure for conducting a Second-Level Grievance Panel review is set forth
in Blue Cross’s standard procedures for conducting second level appeals. A Second-Level
Grievance Panel comprises five voting members: (1) three outside physicians contracted
by the appeals reviewer, (2) a Blue Cross director-level employee, and (3) a Blue Cross
policy holder.
A director-level employee of Blue Cross serves on Second-Level Grievance Panels
on a rotating basis as a part of employment duties with Blue Cross. Any such Blue Cross
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employee receives no benefits of any kind for determinations made in Second-Level
Grievance Panels.
Appeals of benefits decisions are governed by Blue Cross’s Corporate Policies and
Procedures Commercial Member Complaints and Grievances. These Policies and
Procedures set forth an appeals process for all policy holders that meets applicable state
and federal laws.

Conclusions of Law
Where an ERISA health plan gives the administrator discretionary authority to
interpret the plan or award benefits, the administrator’s decision regarding a claim is
reviewed under the deferential abuse of discretion standard. Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 115 (1989); Weber v. GE Group Life Assur. Co., 541 F.3d 1002, 1010 (10th
Cir. 2008); Flinders v. Workforce Stabilization Plan, 491 F.3d 1180, 1189 (10th Cir. 2007). The
Tenth Circuit has noted that the arbitrary and capricious standard is “interchangeable”
with abuse of discretion. Weber, 541 F.3d at 1010 n. 10. This standard “is a difficult one for
a claimant to overcome.” Nance v. Sun Life Assur. Co. of Can., 294 F.3d 1263, 1269 (10th Cir.
2002).
Under this standard, the court looks to “whether the interpretation of the plan was
reasonable and made in good faith.” Weber, 541 F.3d at 1010 (quotation and citations
omitted). The decision “will be upheld so long as it is predicated on a reasonable basis.”
Adamson v. Umum Life Ins. Co. of Am., 455 F.3d 1209, 1212 (10th Cir. 2006). A decision is not
arbitrary and capricious if is supported by substantial evidence, which is defined as proof
of “the sort that a reasonable mind could accept as sufficient to support a conclusion.
Substantial evidence means more than a scintilla, of course, yet less than a preponderance.”
Id.

The “reviewing court ‘need only assure that the administrator’s decision falls

somewhere on a continuum of reasonableness – even if on the low end.’” Kimber v. Thiokol
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Corp., 196 F.3d 1092, 1098 (10th Cir. 1999) (quoting Vega v. National Life Ins. Serv., Inc., 188
F.3d 287, 297 (5th Cir.1999).
If the plan administrator is also the insurer, it has a conflict of interest, and the court
applies an modified abuse of discretion standard, examining a combination of factors,
including this conflict of interest. See Metropolitan Life Insurance v. Glen, 128 S.Ct. 2343, 2350
(2008); Holcomb v. Unum Life Ins. Co. of Am., 578 F.3d 1187, 1193 (10th Cir. 2009); Chambers
v. Family Health Plan Corp., 100 F.3d 818, 826-827 (10th Cir. 1996). The weight to be given
the conflict depends upon its seriousness. Foster v. PPG Industries, 693 F.3d 1226, 1232 (10th
Cir.2012). The conflict is given great weight where it likely affected the denial; it is less
important or even unimportant where steps were taken to reduce potential bias and
promote accuracy. Id.
In Holcomb, the court determined that the insurer-administrator had lessened the
conflict by engaging additional medical reviewers, and thus did not “rely solely on the
evaluations and medical opinions of its own on-site physicians and nurses.” 578 F.3d at
1193. Such a conflict of interest is of limited weight where the administrator lacks any
history of bias and employs an outside medical expert to review the claim. See Hickman v.
LSI Corp., 2012 WL 2505298 *3; No. 11–1039–JAR Dist. Kan. 2012).
The court finds that the plaintiff has failed to demonstrate an abuse of discretion in
the denial of benefits for the IMRT treatments. The Health Plan expressly precludes
coverage for “Experimental/Investigative” procedures. The Plan further provides that a
treatment may be experimental or investigative if it falls within the defined list of
exclusions in the “National Blue Cross and Blue Shield Association’s uniform medical
policy (as amended from time to time).” Here, both the National Blue Cross IMRT Medical
Policy and the defendant’s IMRT Medical Policy explicitly provide that IMRT is considered
investigational for treatment of cancer in the abdomen and pelvis.

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In addition, the Plan precludes coverage if there is “not sufficient evidence based
peer reviewed studies published in medical literature to establish the safety and efficacy
of the technology.” Here, Blue Cross’s determination was confirmed in two appeals, during
which four peer review cancer specialists agreed that the treatment was experimental or
investigative for Burton’s ovarian and liver cancer. According to Dr. Bastin, there is “[n]o
literature ... to support the use of IMRT in terms of efficacy for this patient’s stage IV
disease. The morbidity of IMRT for head/neck cancer has been widely reported, but no
data can be found to support IMRT for abdominal and pelvic metastases sites.”
Here plaintiff argues that the court should adopt a de novo review of the denial of
benefits, because Blue Cross committed procedural errors in the review of Burton’s claim.
For example, the plaintiff faults the sufficiency of the notice provided by Blue Cross in its
initial denial of the claim. The plaintiff further notes that Dr. Marciniak was initially
presented with Blue Cross IMRT Policy 8.01.46 (which applies to radiotherapy of breast
and lung lesions), rather than 8.01.49 (radiotherapy of the abdomen and pelvis). In
addition, Dr. Marciniak’s report mistakenly refers to Subsection (c)(2) of Section A’s
definition of experimental or investigative procedures, rather than Subsection (d).
The court finds that the denial of benefits is properly reviewed under the abuse of
discretion standard, and that Blue Cross’s decision does not violate this standard. First, the
authority cited by plaintiff for de novo review, LaAsmar v. Phelps Dodge Corp. Life Accid.
Death & Dismem. Life Ins. Plan, 605 F.3d 789, 796 (10th Cir. 2010) is inapposite. In that case,
the plan administrator did not qualify for deferential review because it did not attempt any
timely substantial compliance with plan procedures. This case is markedly different. Blue
Cross timely corresponded with the claimant and counsel, and issued a decision within the
controlling deadlines.
Second, the notice sent by Blue Cross stated that the claim was denied because
“Experimental and Investigational services are not covered under the Member’s plan.”
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Blue Cross substantially complied with the requirements of 29 C.F.R. § 2560.503-1(g) by
informing Burton of the basis for the denial. That Burton understood the rationale for the
denial is confirmed by her appeal, which sought to provide evidence in support of the
validity and efficacy of IMRT treatment.
The errors in supplying the IMRT breast cancer policy to Dr. Marciniak, and his
reference to Subsection (c)(2) rather than (d), also do not detract from Blue Cross’s
substantial compliance with ERISA procedures. Dr. Marciniak’s conclusion did not rely on
the breast cancer policy, and his key conclusion — that the medical literature provides no
support for IMRT therapy for abdominal cancers — is appropriate under both subsections
of the Plan. Because that conclusion is otherwise unchallenged in the administrative record
(and was in fact confirmed by the subsequent three independent physician reviewers), Blue
Cross did not act unreasonably in relying upon it.
Blue Cross complied with C.F.R. § 2560.503-1(h)(3)(iii), which requires that plan
administrators consult with “a health care professional” with “appropriate training and
experience” in conducting the appeal from the denial of benefits. Following the initial
review of the claim by Dr. Britton, MES obtained the independent review of the claim by
Dr. Marciniak, a physician board-certified in internal medicine with an subspecialty in
medical oncology. Dr. Marciniak had the appropriate training and experience to review the
claim denial for the treatment of Burton’s ovarian and liver cancer.
The plaintiff complains that Blue Cross sought to get “another bite at the apple” by
means of the second appeal, and rhetorically asks, if Blue Cross believed that Dr.
Marciniak’s findings supported the denial of benefits, then “why did [it] hire three new
physicians to review the claim ...?” The answer is that Blue Cross was attempting to be as
fair as possible to the claimant. Blue Cross substantially complied with ERISA standards
and its own procedures. Further, it would hardly serve public policy to determine that the
act of offering an additional appellate review of a claim denial is itself somehow evidence
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of bias or bad faith. Such a conclusion would discourage administrators from undertaking
additional review of claims denials, or from attempting to correct relatively minor
procedural errors.
Here, the court finds no evidence of any bias or inappropriate actions by Blue Cross.
Even as it acted as insurer and plan administrator, the plaintiff has not shown how any
decision by Blue Cross was actually affected by any conflict of interest. The reviews – both
those employed by Blue Cross and those independently obtained by MES – reached the
same conclusion regarding the lack of studies supporting IMRT therapy for abdominal
cancers. See Healthcare America Plans, Inc. v. Bossemeyer, 953 F.Supp. 1176 (D. Kan. 1996) (no
abuse of discretion for denial of experimental chemotherapy).
Consistent with its standard operating policy, Blue Cross took affirmative steps to
avoid any bias in reviewing Burton’s appeal of the denial of benefits. Blue Cross engaged
MES to obtain independent specialist reviews of the IMRT treatment. All of the
independent reviewers concluded that IMRT treatment is experimental or investigative for
ovarian and liver cancer. The compensation of Blue Cross employees administering Plan
is not tied to their decisions. Similarly, the independent reviewers were not compensated
based on the conclusions.
The court further finds that the plaintiff’s claim for equitable relief under Count 2
of the Amended Complaint is not a proper remedy under 29 U.S.C § 1132(a)(1)(B) as
alleged in Count II of the Amended Complaint. See Cigna Corp. v. Amara, 131 S.Ct. 1866,
1876-77 (2011) (finding ERISA does not authorize district courts to reform health plans or
engage in other equitable relief).

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IT IS ACCORDINGLY ORDERED this 31st day of July, 2014, that the plaintiff’s
Motion for Summary Judgment (Dkt. 64) and Motion to Strike (Dkt. 70) are denied; the
defendant’s Motion for Summary Judgment (Dkt. 66) is granted.

s/ J. Thomas Marten
J. THOMAS MARTEN, CHIEF JUDGE

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