Martindale v. United States of America

Filing 24

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 7/29/2016 granting Defendant's Motion to Dismiss, or alternatively, Motion for Summary Judgment (DN 13 ), and Defendant's Motion for Leave to Exceed Page Limit in Reply (DN 21 ). cc: Counsel(JWM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:15-CV-00581-GNS-DW

JUSTIN S. MARTINDALE

PLAINTIFF

v.

UNITED STATES OF AMERICA

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss, or alternatively,
Motion for Summary Judgment (DN 13) and Defendant’s Motion for Leave to Exceed Page
Limit in Reply (DN 21). The motions are ripe for decision. For the reasons stated below, the
Court GRANTS Defendant’s motions.
I.

BACKGROUND

This action arises from the denial of benefits under the Servicemembers’ Group Life
Insurance Traumatic Injury Protection program (“TSGLI”) by the U.S. Army and Army Board
for Correction of Military Records (“ABCMR”). Plaintiff Justin S. Martindale (“Martindale”) is
a former military service member who suffered a fracture of his left tibia and fibula during an
all-terrain vehicle accident on November 7, 2009. (Compl. ¶ 16, DN 1).
On or about February 3, 2011, Martindale presented a claim for compensation under
TSGLI for his injury to the Office of Servicemembers’ Group Life Insurance (“Office”).
(Compl. ¶ 17; Admin. R. 3-12, DN 13-2 [hereinafter AR]). In his application for benefits,
Martindale indicated that he suffered an “Other Traumatic Injury” which rendered him “[u]nable
to bathe independently” and in need of “physical assistance (hands-on)” for the period time from

November 7, 2009, to December 15, 2009. (AR 10). In support of his application, Martindale
included an evaluation from his treating doctor, Dr. Douglas P. Kirkpatrick (“Dr. Kirkpatrick”),
who indicated that Plaintiff needed physical assistance for bathing and dressing for the period of
November 7, 2009, to December 10, 2009. (AR 10-12).
On March 17, 2011, Martindale was notified of the denial of his TSGLI claim. (AR 5963).

The letter of denial letter accompanying the TSGLI Claim Certification Worksheet

indicated that Plaintiff’s application failed to show that he was “unable to independently perform
at least two activities of daily living (ADLs) for at least 30 days” which inability had to be
certified by a medical professional. (AR 59, 63).
On May 3, 2011, Plaintiff requested reconsideration of the denial of TSGLI benefits.
(AR 64-137). In the May 18, 2011, letter denying reconsideration of the claim, the Office
provided the following basis for the denial:
The documentation provided indicated that you did not meet the minimum TSGLI
standards for Activities of Daily Living (ADL) losses. The Soldier is considered
to have a loss of AOL if the Soldier requires assistance to perform at least two of
the six ADL. If the Soldier is able to perform the activity by using
accommodating equipment (such as a cane, walker; commode, etc.), then the
Soldier is considered able to independently perform the activity.
The
documentation submitted to this office indicated that you were ambulating with
crutches before the 30 day consecutive ADL mark for payment.
(AR 138).
On June 30, 2011, Plaintiff appealed the denial to the TSGLI Special Compensations
Branch. (AR 140-234). On July 19, 2011, the TSGLI Special Compensation Branch denied the
appeal on the basis that:
The documentation provided indicated that you were able to perform the activities
of daily living with the use of adaptive measures. If the Soldier is able to perform
that activity by the use of adaptive measures or equipment (such as a cane,
crutches, wheelchair, or the ability of other limbs of the body, etc.) then the
Solider is considered able to independently perform the activity.
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(AR 235-36).
On May 23, 2012, Martindale appealed to the ABCMR. (AR 251-415). The threeperson ABCMR board denied his application on the basis that “there [was] insufficient evidence
to grant the requested relief.” (AR 250). By memorandum dated May 1, 2013, ABCMR notified
Martindale of its final denial of Plaintiff’s TSGLI claim. (AR 237-50). Martindale subsequently
filed the present action seeking review of the denial of his claim for TSGLI benefits pursuant to
38 U.S.C. § 1975. (Compl. ¶¶ 2, 27).
II.

JURISDICTION

The Court has jurisdiction over the parties pursuant to 38 U.S.C. § 1975 as this action
involves a dispute related to the TSGLI.
III.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). There is no genuine issue of
material fact when “looking to the record as a whole, a reasonable mind could come to only one
conclusion . . . .” Mickler v. Nimishillen & Tuscarawas Ry. Co., 13 F.3d 184, 186 (6th Cir.
1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)).

“When moving for

summary judgment the movant has the initial burden of showing the absence of a genuine
dispute as to a material fact.” Automated Sols. Corp. v. Paragon Data Sys., Inc., 756 F.3d 504,
520 (6th Cir. 2014) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “The burden
then shifts to the nonmovant, who must put forth enough evidence to show that there exists ‘a
genuine issue for trial.’” Id. (citing Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004)).

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While the Court views the evidence in the light most favorable to the non-moving party,
the non-moving party must do more than merely show the existence of some “metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (citations omitted). Rather, the non-moving party must present specific facts proving
that a genuine factual issue exists by “citing to particular parts of the materials in the record” or
by “showing that the materials cited do not establish the absence . . . of a genuine dispute . . . .”
Fed. R. Civ. P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [nonmoving party’s] position will be insufficient; there must be evidence on which the jury could
reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.
IV.

DISCUSSION

The United States argues that summary judgment must be granted in this matter because
the denial of benefits was not arbitrary and capricious based on the administrative record.
(Def.’s Mem. in Supp. of Mot. for Summ. J. 17, DN 13-1). “[I]n cases where Congress has
simply provided for review, without setting forth the standards to be used or the procedures to be
followed, this Court has held that consideration is to be confined to the administrative record and
that no de novo proceeding may be held.” United States v. Carlo Bianchi & Co., 373 U.S. 709,
715 (1963) (citations omitted). The statute which grants the Court jurisdiction in this case,
Section 1975, provides for judicial review without setting forth the standards to be used or the
procedures to be followed. See 38 U.S.C § 1975. Therefore, the Court’s review is confined to
the administrative record. See Austin v. U.S., Dept. of the U.S. Army, 614 F. App’x 198, 202 (5th
Cir. 2015) (finding review was limited to the administrative record under Section 1975).
Challenges to the decisions of military correction boards such as the ABCMR are
reviewable under the Administrative Procedures Act, 5 U.S.C. §§ 500-596, which empowers

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courts to set aside any final agency action that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law . . . .” 5 U.S.C. § 706(2)(A). The arbitrary and capricious
standard of review requires that deference be afforded to the reviewing agency. See Maple Drive
Farms Ltd. P’ship v. Vilsack, 781 F.3d 837, 852 (6th Cir. 2015); Austin, 614 F. App’x at 205.
The Supreme Court has held that a district court cannot vacate an agency’s decision unless the
agency:
has relied on factors which Congress had not intended it to consider, entirely
failed to consider an important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view or the product of
agency expertise.
Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658 (2007) (internal quotation
marks omitted) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983)). The agency’s decision need only be based on substantial evidence
in the record so a reasonable mind might accept the agency’s conclusion. See Richardson v.
Perales, 402 U.S. 389, 401 (1971).
The TSGLI provides benefits to service members sustaining a traumatic injury after
December 1, 2015, resulting in a “qualifying loss.” See 38 U.S.C. § 1980A(a)(1). A qualifying
loss includes “the inability to carry out the activities of daily living resulting from traumatic
injury to the brain.” Id. § 1980A(b)(1)(H). The TSGLI, however, also expressly authorizes the
Secretary to designate additional qualifying losses. See 38 U.S.C. § 1980A(b)(1). The relevant
regulations include coverage for an “other traumatic injury,” which is characterized as a nontraumatic brain injury “resulting in inability to perform at least 2 [a]ctivities of [d]aily [l]iving
[(“ADL”)].” 38 C.F.R. § 9.20(f)(20). The regulations further define ADL as “the inability to
carry out activities of daily living means the inability to independently perform at least two of the

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six following functions: (A) [b]athing[;] (B) [c]ontinence[;] (C) [d]ressing[;] (D) [e]ating[;] (E)
[t]oileting[;] [and] (F) [t]ransferring in or out of a bed or chair with or without equipment.” Id. §
9.20(e)(6)(vi)). See also 38 U.S.C. § 1980A(b)(2) (containing the identical definition for the
term “inability to carry out the activities of daily living”). To receive compensation for this type
of injury, a claimant must have the loss of two ADLs for a minimum period of thirty consecutive
days. 38 U.S.C. § 9.20(f)(20). In addition, the TSGLI Procedural Guide states that “[i]f the
patient is able to perform the activity by using accommodating equipment, such as a cane,
walker, commode, etc.[], the patient is considered to independently perform the activity.”
(Def.’s Mot. for Summ. J. Ex. 4, at A-39, DN 13-4). Similarly, as the claim application notes:
The patient is considered unable to perform an activity independently only if she
or she REQUIRES assistance to perform the activity. If the patient is able to
perform the activity by using accommodating equipment, such as a cane, walker,
commode, etc., the patient is considered able to independent perform the activity
without requiring assistance.
(AR 10).
In this case, the Administrative Record reflects that the denial of benefits was based upon
Martindale’s failure to show that he had a loss of two ADLs for at least thirty consecutive days.
In making its decision, the ABCMR reviewed Martindale’s applications and all of the documents
he submitted. These documents included letters from his parents previously submitted as part of
the prior applications and appeals. (AR 329-34).
The ABCMR also reviewed Martindale’s medical documents and found that they did not
support the finding that he was unable to perform his ADLs for 30 or more days. (AR 246). It is
not “arbitrary and capricious for the Army to examine and evaluate the underlying records itself,
rather than relying on the certifying medical profession’s interpretation of the same records.”

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Fail v. United States, No. 12-CV-01761-MSK-CBS, 2013 WL 5418169, at *6 (D. Colo. Sept.
27, 2013). As reflected in the conclusion of the ABCMR Record of Proceedings:
Counsel has stated “no medical evidence exists that he (applicant) was able to use
crutches to independently perform any of the claimed ADLs.” He also adds that
there is no indication that he was able to perform any ADLs even with the
crutches or that he used his crutches to enter the shower or support himself while
standing in the shower. Counsel has also applied this logic to dressing, lying,
sitting and standing without assistance.
a.
The arguments [of Martindale’s counsel] have been noted;
however, other than these arguments, his parents written statements, and the
physician statements in Part B of his TSGLI claim form indicating that he could
not perform bathing, dressing, or transferring independently, these claims are not
corroborated by information in the available medical records. While it is not
disputed that the applicant may have required some hands-on assistance
performing various tasks during the initial stages of his injury, his medical records
show he began use of crutches immediately following the accident.
b.
His medical records also show that on 9 November 2009 he was
noted to flex and extend at the hip without any pain. On 16 November 2009, he
was instructed to put a little bit of weight on the sole of his foot. Beginning 3
December 2009, the range of motion of his knee and ankle were almost near
normal. He was directed to continue to work on his range of motion with weight
bearing from 40 to 50 pounds. This disputes the argument that he was nonweight
bearing for 30 or more days after his injury and/or subsequent to his surgery.
c.
Nowhere in the medical documents provided does it show he was
directed by medical authorities not to perform any of the claimed loss of ADL’s
with any other assistance other than his crutches. Therefore, no medical evidence
exists showing that the applicant was not able (emphasis added) to perform these
functions independently. The applicant’s injury, an isolated, single limb injury in
an otherwise uninjured Soldier, is generally insufficient justification for payment
of TSGLI. It is a reasonable expectation that a Soldier is capable of adopting,
within 30 days of injury, adaptive behaviors to accomplish all ADLs in coping
with a single limb injury.
(AR 249).
The contemporaneous treatment records for the relevant time period of November 7,
2009, to December 10, 2009, support the ABCMR’s denial of Martindale’s claim. During that
period, Martindale had two hospital visits and four doctor’s office visits. (AR 24-27). The two
hospital visits can be summarized as follows:

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

November 7, 2009 – the emergency room visit comments noted that Martindale
should “[i]ce, elevat[e] & rest. NO WEIGHT BEARING on injured leg – use
crutches.” (AR 381). There is no reference, however, to any impact that the
injury may have on Plaintiff’s ADLs.



November 25, 2009 – the operative notes reflect that Dr. Fitzpatrick performed an
intramedullary rodding of the tibia. (AR 379). The notes did not discuss whether
the procedure and any limitations may have impacted Martindale’s ADLs.

The four office visits can be summarized as follows:


November 9, 2009 – it was noted that Martindale was diagnosed with a
“[t]ransverse facture, midshaft tibia. It is about 90% cortical contact. No fibular
facture present.”

The treatment plan included “long-leg cast

(AR 391).

application with partial weightbearing on this as tolerated; however, without true
ambulation more for stability while standing still.” (AR 391). The office visit
note makes no mention of whether the diagnosis and treatment have any impact
on Martindale’s ADLs.


November 16, 2009 - the physician assistant discussed the condition of the cast
and notes that Martindale is experiencing pain. (AR 390). There is no reference
to any impact that his injury may have on his ADLs.



November 19, 2009 - Dr. Fitzpatrick provided minimal information regarding
Martindale’s physical condition. (AR 388). There is no mention of whether the
tibial fracture had any impact on Plaintiff’s ADLs.



December 3, 2009 - The notes reflected that post-op Martindale had an almost full
range of motion in his knee and ankle. (AR 387). Dr. Fitzpatrick stated that he

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“want[ed] [Martindale] to continue working on range of motion of his knee and
ankle. He may be 40 to 50 pounds weightbearing.” (AR 387).
Based upon the Court’s review of the ABCMR’s decision and the medical records, the Court
concludes that the ABCMR’s final denial of benefits was supported by substantial evidence that
Martindale had not presented sufficient evidence regarding the ADLs to qualify for benefits.
In reaching this decision, the Court is mindful of the Supreme Court’s edict that “the
scope of review under the arbitrary and capricious standard is narrow and a court is not to
substitute its judgment for that of the agency.” Motor Vehicles Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). On appellate review, ABCMR’s decision is
“entitled to a presumption of regularity.” Escobedo v. Green, 602 F. Supp. 2d 244, 248 (D.D.C.
2009) (internal quotation marks omitted) (quoting Citizens to Pres. Overton Park, Inc. v. Volpe,
401 U.S. 402, 415 (1971)). Although Dr. Fitzpatrick indicated Plaintiff required assistance with
bathing, the ABCMR found that Martindale was able to shower with the use of crutches, so that
he was capable of performing that ADL. Because the ABCMR’s final denial of benefits on this
basis was not arbitrary and capricious, Defendant’s motion is granted.
V.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s Motion to
Dismiss, or alternatively, Motion for Summary Judgment (DN 13), and Defendant’s Motion for
Leave to Exceed Page Limit in Reply (DN 21) are GRANTED.

Greg N. Stivers, Judge
United States District Court
cc:

July 29, 2016

counsel of record

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