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Danica Dubaich v. Connecticut General Life Insurance Company

April 25, 2013


The opinion of the court was delivered by: Dolly M. Gee United States District Judge


This matter is before the Court following a bench trial on the administrative record on November 6, 2012. Russell G. Petti of The Law Offices of Russell G. Petti appeared on behalf of Plaintiff, Danica Dubaich. Donald P. Sullivan of Wilson, Elser, Moskowitz, Edelman & Dicker LLP appeared on behalf of Defendant CIGNA.*fn1 Plaintiff filed a supplemental brief on November 16, 2012. Thereafter, the Court took the matter under submission.

Having carefully reviewed the administrative record and the arguments of counsel as presented at the hearing and in their written submissions, the Court makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.


1. Plaintiff Danica Dubaich was a participant in the HCA Health and Welfare Benefit plan ("Plan"), a self-funded employee welfare benefit plan, as that term is defined by ERISA section 2(1), 29 U.S.C. § 1002(1), sponsored by HCA for the benefit of its employees. (Administrative Record ("A.R.") at 366-69.)

2. Dubaich was covered under CIGNA Coverage Plan 0104. (A.R. at 9, 91). Pertinent Plan Terms

3. The Medical Coverage Policy regarding intervertebral disc prosthesis states as follows:

CIGNA covers the surgical implantation of the Charite or ProDisc-L lumbar intervertebral disc (IVD) prosthesis for chronic, unremitting, discogenic low back pain and disability secondary to single-level degenerative disc disease (DDD) as medically necessary in a skeletally mature individual when ALL of the following criteria are met: - The unremitting low back pain and disability described has been refractory to at least six consecutive months of standard medical and surgical management (e.g., exercise, analgesics, physical therapy, spinal education). - Single-level disc degeneration has been confirmed on complex imaging studies (i.e., computerized tomography [CT] scan, magnetic resonance imaging [MRI]). - The planned implant will be used in the L4-S1 region if the Charite or the L3-S1 region if ProDisc-L.

CIGNA does not cover the surgical implantation of any of the following because they are considered experimental, investigational or unproven: - Charite or ProDisc-L lumbosacral intervertebral disc prosthesis when any of the following apply:

the planned procedure includes the combined use of a prosthesis and spinal fusion simultaneous multi-level implantation is planned o the implant will be inserted outside of the L4-S 1 region (Charite) or outside of the L3-S 1 region (ProDisc-L) the individual has osteopenia or osteoporosis (T-score less than

-1.0) --the individual has a history of a prior lumbar fusion

there is evidence on imaging studies the spine [sic] of any of the following:

 degenerative spondylolisthesis of Grade 2 or greater  infection  multi-level degenerative disc disease  nerve root compression or spinal stenosis  pars interarticularis defect with either spondylolysis or spondylolisthesis  scoliosis  severe facet joint arthrosis  spinal fracture  tumor - a lumbosacral disc prosthesis other than Charite or ProDisc-L (A.R. at 150-51.)

4. The Plan excludes experimental and investigational treatments. The specific language is as follows:

Research, experimental, investigational and unproven procedures, supplies, drugs and devices (Federal Drug Administration [FDA] approval does not necessarily mean a procedure or supply has been removed from the experimental list), with the exception of precertified clinical trials. (A.R. at 227.)

5. The term "experimental" is defined as follows: Experimental Procedures: Any medical procedure, equipment, treatment or course of treatment, or drugs or medicines that are: - limited to research - not proven in an objective manner to have therapeutic value or benefit - restricted to use by medical facilities capable of carrying out scientific studies

- of questionable medical effectiveness or - would be considered inappropriate medical treatment To determine whether a procedure is experimental, HCA will consider, among other things, commissioned studies, opinions and references to or by the American Medical Association, the federal Food and Drug Administration, the Department of Health and Human Services, the national Institutes of Health, the Council of Medical Specialty Societies and any other association or program or agency that has the authority to review or regulate medical testing or treatment. (A.R. at 371.) The terms "research," "investigational," and "unproven" are not defined in the Plan. (A.R. at 370-72.)

6. The Plan grants the Plan Administrator discretionary authority to interpret the Plan's terms and make benefit payments. (A.R. at 366.)

7. The Plan defines the "Plan Administrator" as the HCA Plan Administration Committee. "The HCA Plan Administration Committee is the Plan Administrator for the HCA 401(k) Plan and the HCA Health and Welfare Benefits Plan." (A.R. at 366.)

8. "The Plan Administrator may delegate any of its duties and responsibilities to one or more persons or entities. Such delegation of authority must be in writing, and must identify the delegate and the scope of the delegated responsibilities." (A.R. at 366.)

9. The Plan states that "[f]or the self-funded benefits (Medical, Dental, Wellness, HRA and Health Care FSA), HCA has delegated to the Claims Administrator initial claims determinations.

10. The Plan defines Claims Administrator as "[t]he company responsible for administering and paying claims under a benefit plan." (A.R. at 370.) In this case, the Claims Administrator is CGLIC.

11. Regarding appeals, the Plan states:

All decisions following a review by the Claims Administrator are final and binding for purposes of the plan's internal claim review procedures. . . . If your claim is denied in whole or in part after all stages of the internal review procedures have been completed (except any voluntary levels of review), you have the right to seek to have your claim paid by filing a request for external review or a civil action in court, but you will not be able to do so unless you have completed all of the levels of the internal review process (except any voluntary levels) required under the plan.

(A.R. at 357.)

12. Under the Plan, external review is an alternative to court review, with the option granted to the beneficiary. If external review is elected, the Claims Administrator would then "complete a preliminary review . . . to determine whether [the] request is eligible for external review," and would ...

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