Baxter v. Mba Grp. Ins. Trust Health & Welfare Plan

• Decision Date: 23 July 2013
• Docket Number: No. C12–1548 TSZ.,C12–1548 TSZ.
• Citation: 958 F.Supp.2d 1223
• Parties: David BAXTER, Plaintiff, v. MBA GROUP INSURANCE TRUST HEALTH AND WELFARE PLAN, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

958 F.Supp.2d 1223

David BAXTER, Plaintiff,

v.MBA GROUP INSURANCE TRUST HEALTH AND WELFARE PLAN, et al., Defendants.

No. C12–1548 TSZ.

United States District Court,

W.D. Washington,

at Seattle.

July 23, 2013.

Ian S. Birk, Isaac Ruiz, Keller Rohrback, Seattle, WA, for Plaintiff.

Medora A. Marisseau, James Derek Little, Karr Tuttle Campbell, Seattle, WA, for Defendants.

ORDER

THOMAS S. ZILLY, District Judge.

THIS MATTER comes before the Court on the Parties' cross motions for summary judgment, docket nos. 14 and 18. The Court has reviewed the motions, opposition, and replies, and all pleadings related thereto, and now enters the following Order.

I. Background

Plaintiff David Baxter was diagnosed with early stage prostate cancer in September 2011. Complaint at ¶ 3; Administrative Record (“AR”) at 139. Plaintiff was 51 years old and otherwise in good health at the time of diagnosis. AR at 139. His doctors classified his cancer as intermediate-risk. Id. at 23–24. He was a participant in the “MBA Group Insurance Trust Health and Welfare Plan” (the “Plan”), an employee welfare benefit plan governed by the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002(1). Complaint at ¶¶ 4–7. The Plan is underwritten and administered by Defendant Regence Blueshield (“Regence”). Id.

Following consultation with several specialists, Plaintiff determined that his preferred course of treatment was a form of radiation therapy called “proton therapy.” Id. at ¶ 3. In contrast to more commonly used forms of radiation therapy that are delivered with x-rays, including conformal radiation therapy (CRT) and intensity-modulated radiation therapy (IMRT), proton therapy delivers radiation with proton beams. Rossi Decl. at 16–18, docket no. 16. Plaintiff concluded that proton therapy treatment would be the best option for controlling his cancer and preserving his quality of life. Complaint at ¶ 3. Plaintiff requested preauthorization for proton therapy from Regence. Id.; AR at 18.

Regence denied coverage on November 21, 2011. AR at 7. It concluded that proton therapy was not a “medically necessary” treatment under the relevant Plan language and Regence's Medical Policy 49. Id. at 7–9; Complaint at ¶ 3. Specifically, Regence stated:

[W]e are unable to authorize the above service(s) because charged-particle irradiation with proton beams is considered not medically necessary in patients with clinically localized prostate cancer because the clinical outcomes with this treatment have not been shown to be superior to other approaches including intensity modulated radiation therapy (IMRT) or conformal radiation therapy. This request does not meet Regence Medical Policy [49].

AR at 7. Regence Medical Policy 49 provides, in relevant part:

Charged-particle irradiation with proton beams is considered not medically necessary in patients with clinically localized prostate cancer because the clinical outcomes with this treatment have not been shown to be superior to other approaches including intensity modulated radiation therapy (IMRT) or conformal radiation therapy. Charged-particle irradiation with proton beams is more costly than other alternatives for treatment, and is therefore not medically necessary.

Id. at 82.

Plaintiff appealed the denial of coverage, arguing that proton therapy is clinically superior to IMRT and therefore, meets the Plan's definition of medically necessary treatment. Complaint at ¶ 36; AR at 32–64. Plaintiff also argued that Regence did not meet its burden to demonstrate that proton therapy is more costly than IMRT. Id. Plaintiff attached to his appeal letters of support from Dr. Grover, his treating physician at the Loma Linda University Medical Center facility where Plaintiff received proton therapy treatment, and from Dr. Laramore, a radiation oncologist and Chair of the Department of Radiation Oncology at the University of Washington Medical Center. AR at 66–73.

Regence referred the appeal for an independent medical review, AR at 26–30, and again denied coverage in February 2012, concluding that:

We have decided the original denial was appropriate. As a result, we regret to inform you that your appeal has been denied. The rationale for this decision follows: As per our medical policy and National Comprehensive Cancer Network guidelines, proton beam therapy has not been proven better, or to have significantly fewer side effects, than intensity modulated radiation therapy (IMRT), brachytherapy, or 3D conformal radiation therapy (CRT). The reviewing physician notes that at the 2012 American Society of Clinical Oncology (ASCO) Genitourinary meeting, a study was presented comparing IMRT, 3D CRT, and proton therapy for prostate cancer using the Medicare SEER database from 2000 to 2009. The study showed that proton therapy was not associated with superior outcomes to IMRT, and that protons were associated with increased gastrointestinal toxicity.

Id. at 102 (emphasis added).

Plaintiff appealed a second time. Complaint at ¶ 38; AR 147–69. In his second appeal, Plaintiff informed Regence that he had completed proton therapy and had turned to family and friends to cover the cost of treatment. AR at 167. Regence again denied coverage. Id. at 519. In its denial letter, Regence stated:

Our records indicate that your group coverage has been terminated effective August 1, 2012, following termination of your employment. Because you are requesting benefit consideration for future services on a closed account, your appeal has been declined.

Id.

Plaintiff commenced the present action in September 2012 under ERISA, 29 U.S.C. § 1132(a)(1)(B), which allows a plan participant or beneficiary to sue to “recover benefits due to him under the terms of the plan.” He alleges that the Plan provides coverage for medically necessary treatment; that proton therapy was medically necessary in his case; and that Regence, both initially and following an administrative appeal, wrongfully denied coverage under the Plan. Plaintiff seeks reimbursement for the cost of the proton therapy, specific performance, costs and attorney fees. Complaint at ¶¶ 46–48.

The Parties have filed cross-motions for summary judgment. Plaintiff argues that Regence improperly denied coverage. Plaintiff's Motion for Summary Judgment, docket no. 14. Regence claims that coverage was properly denied under the terms of the Plan as “not medically necessary” because another form of radiation therapy provides equivalent treatment at a lower cost. Defendants' Motion for Summary Judgment, docket no. 25.

II. Standard of Review

The standard of review in an ERISA case in which benefits were denied is de novo, unless the plan confers discretion on the administrator. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The Parties agree that the Plan did not confer discretion on the administrator and that this Court reviews Regence's denial of coverage de novo. Plaintiff's Motion for Summary Judgment at 15–16; Opposition to Plaintiff's Motion for Summary Judgment at 17, docket no. 27.

The Court may grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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).¹ The moving party bears the initial burden of informing the Court of the basis for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party makes an initial showing, the burden shifts to the opposing party to show that summary judgment is not warranted because a genuine issue of material fact exists. Id. at 324, 106 S.Ct. 2548. A genuine issue of material fact exists only if the evidence is such that a reasonable trier of fact could resolve the dispute in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In reviewing the evidence, “the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

III. Burden of Proof

“Section 502 of ERISA entitles a participant or beneficiary of an ERISA-regulated plan to bring a civil action ‘to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.’ ” Chappel v. Lab. Corp. of Am., 232 F.3d 719, 724 (9th Cir.2000) (quoting 29 U.S.C. § 1132(a)(1)(B)). When a district court reviews a plan administrator's decision to deny benefits under the de novo standard of review, the burden of proof is placed on the claimant to prove his entitlement to contractual benefits. Muniz v. Amec Const. Mgmt., Inc., 623 F.3d 1290, 1294 (9th Cir.2010) (citing Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir.1998); Farley v. Benefit Trust Life Ins. Co., 979 F.2d 653, 658 (8th Cir.1992)).²

Plaintiff, never-the-less, contends that Regence bears the burden to prove that proton therapy is not medically necessary. He contends that this is so because the Plan includes an exclusion for services that are “not medically necessary,” and cites the general principle of insurance law that the insurer bears the burden of proving that an exclusion applies. Regence responds that Plaintiff bears the burden of proving that proton therapy is a medically necessary treatment for clinically localized prostate cancer because the coverage section of the plan includes the requirement that medical services must be “medically necessary” to be covered. To answer the question of whether the burden of proving medical necessity falls on the Plaintiff or the Defendant, the Court must determine whether ...