Blackwood v. United States, CIVIL ACTION NO. 3:15CV-00402-JHM

• Decision Date: 09 May 2016
• Docket Number: CIVIL ACTION NO. 3:15CV-00402-JHM
• Citation: 187 F.Supp.3d 837
• Court: U.S. District Court — Western District of Kentucky
• Parties: Deval Blackwood, Plaintiff v. United States of America, Defendant

187 F.Supp.3d 837

Deval Blackwood, Plaintiff

v.United States of America, Defendant

CIVIL ACTION NO. 3:15CV-00402-JHM

United States District Court, W.D. Kentucky, Louisville Division .

Signed May 9, 2016

Jacob R. Jagdfeld, Johnson Becker, PLLC, Minneapolis, MN, Michael D. Grabhorn, Grabhorn Law Office, PLLC, Louisville, KY, for Plaintiff.

Brady Miller, L. Jay Gilbert, U.S. Attorney Office, Louisville, KY, for Defendant.

MEMORANDUM OPINION AND ORDER

Joseph H. McKinley, Jr., Chief Judge, United States District Court

This matter is before the Court on a motion by Defendant, United States of America, to dismiss for lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and for summary judgment pursuant to Fed. R. Civ. P. 56 [DN 12]. Fully briefed, this matter is ripe for decision.

I. BACKGROUND

This action arises from the denial of benefits under the Traumatic Servicemembers' Group Life Insurance Program ("TSGLI") by the United States Army Board for Correction of Military Records ("ABCMR" or "Board"). Plaintiff is a current member of the United States Army who suffered a neck injury after falling approximately six feet onto his neck during an obstacle training course. Plaintiff filed a claim for benefits under the TSGLI on April 20, 2012. The Army denied Plaintiff's claim for benefits on the basis that Plaintiff was unable to provide sufficient medical documentation to support his claim for loss of ability to independently perform two or more activities of daily life ("ADL") for at least 30 consecutive days. After several administrative appeals and a final denial, Plaintiff filed suit against the United States on May 23, 2015. The United States now moves to dismiss for lack of subject matter jurisdiction. In the alternative, the United States moves for summary judgment.

II. SUBJECT MATTER JURISDICTION

"The Traumatic Servicemembers' Group Life Insurance program (the "Program" or "TSGLI") is an automatic rider to the Servicemembers' Group Life Insurance Program, codified at 38 U.S.C. §§ 1970 –1980A." Koffarnus v. United States, 175 F.Supp.3d 769, 772, 2016 WL 1261155, *1 (W.D.Ky. Mar. 30, 2016). "The Program provides a benefit when a servicemember suffers a traumatic injury." Id. (citing 38 U.S.C. § 1980A ). The statute provides that "[t]he district courts of the United States shall have original jurisdiction of any civil action or claim against the United States" brought under the Servicemember's Group Life Insurance Program. 38 U.S.C. § 1975.

The United States argues that the Court lacks subject matter jurisdiction over Plaintiff's claims because the complaint's prayer of relief seeks a judgment of money damages. Contrary to the United States' argument, Plaintiff requests specific relief for statutory benefits to which he alleges he is entitled, not money or compensatory damages. Furthermore, even if a portion of the relief Plaintiff requests is inappropriate, subject matter jurisdiction is not destroyed in the present case. The Court has subject matter jurisdiction under 38 U.S.C. § 1975 to hear Plaintiff's claim for alleged wrongful denial of benefits under the TSGLI. Koffarnus, 175 F.Supp.3d at 772, 2016 WL 1261155, *1.

III. SUMMARY JUDGMENT STANDARD

Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying that portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

IV. DISCUSSION

A. Benefit Application and Appeals

On December 12, 2011, Plaintiff was injured while participating in an obstacle course when he fell six feet, landing directly on his head. Upon impact, Plaintiff experienced whole body paralysis. He was placed on a spine board

with cervical spine immobilization and transported by ambulance to Darnall Army Community Hospital. Upon arriving at the hospital, Plaintiff reported that when he fell, he felt immediate pain in his neck, as well as numbness and tingling in both upper extremities. CT scans of his cervical spine revealed fractures of the C3, C6, and C7. Plaintiff was transferred to Scott and White Memorial Hospital on December 12, 2011. Upon arrival, additional CT scans were taken revealing C3 spinous process into the laminar fracture, a C7 superior facet fracture, and a spinal cord contusion from edema. CAR 100-101. Orthopedic specialists placed Plaintiff in a rigid cervical collar. He was instructed to follow up with the orthopedic clinic in a week. Plaintiff was discharged on December 14, 2011, having been hospitalized for three days. Id.

On December 20, 2011, Plaintiff was seen for a follow up at Scott and White Orthopedic Clinic by Dr. Christopher Chaput for known cervical fractures as well as a probable cord contusion/neuropraxia

. CAR 919. Dr. Chaput observed that Plaintiff was "able to stand and ambulate, and his strength is good with the exception of some very trace weakness in his hand intrinsics." Id. At the appointment, Plaintiff reported that he had decreased sensation diffusely in his right hand that is 50% decrease from normal and about 20 % decrease from normal in his left hand. Plaintiff was instructed to follow up in 2 weeks to ensure that his fractures were staying stable. Id.

Plaintiff presented to Integrity Rehab & Home Health for an initial examination on January 16, 2012. A functional evaluation revealed that "[p]atient has several limitations in basic functional mobility such as bathing dressing

and grooming. All ADLs are limited and patient is not performing job duties [a]t this time." CAR 920. The record indicated that prior to the injury, he was "independent in ... ADLs." Id. The record further reflects that at that time his functional limitations was "Self Care, ADLs, Reaching/Pushing/Pulling, Lifting/Carrying, Sitting/Standing, Bending/Squatting." Id. Additionally, the record noted that "[a]ll active movements were limited by over 75%." Id.

On or about February 6, 2012, Dr. Chaput removed Plaintiff's rigid cervical collar, but instructed him not to do active range of motion (AROM) in the cervical spine until his next six week checkup. CCR 336. On February 22, 2012, Plaintiff returned to Integrity Rehab. The Plaintiff noted that his range of motion had improved, but that the tingling in his arms was much worse. CAR 327. The record indicated that "[p]atient has several limitations in basic functional mobility such as bathing dressing

and grooming. All ADLs are limited and patient is not performing job duties [a]t this time" and, once again, that "[a]ll active movements were limited by over 75%." CAR 329. "Laying" was listed as a chief aggravating factor. CAR 329.

Records from Integrity Rehab dated March 26, 2012, reflect that Plaintiff's range of motion was improving, but that he was experiencing a worsening tingling sensation in his arms. CAR 306. The record further provides that "although [Plaintiff] was under restrictions preventing him from moving his cervical spine proper, he has been able to make gains in his overall should strength while healing in the cervical spine proper." Id. Under the Precautions section, the record indicates that "fractures now healed however has spinal cord compression

." Id. Under the Assessment/Diagnosis section, the record notes that Plaintiff "has made some progress in therapy; however, it has been slow due to the normal healing process. In addition, the first 6 weeks were under very limited restrictions for NO cervical AROM. Consequently, we were concentrating on the shoulders/biceps/triceps." Id.

On April 14, 2012,—over 120 days since the accident—Plaintiff received an additional MRI at Darnall Hospital. The MRI results noted that the posterior element fracture at C3 "as not well-seen on current examination, likely reflecting healing." CAR 924.

Plaintiff submitted his application for TSGLI benefits on May 12, 2012. At Part B of the application, entitled Medical Professional's Statement, Dr. Chris Chaput, Plaintiff's treating orthopedic surgeon at Scott and White Orthopedic Clinic, indicated that Plaintiff had ongoing inabilities to bathe independently, dress independently, eat independently, toilet independently, and transfer independently beginning on December 15, 2011, all of which requiring hands-on and stand-by assistance. CAR 14-16.¹ Dr. Chaput certified that he had observed Plaintiff's loss. Plaintiff submitted medical documents as well as a letter from his wife dated April 30, 2012. CAR 039. The application was denied on June 18, 2012.

With the assistance of counsel, Plaintiff submitted a request for reconsideration of the denial of his TSGLI claim to U.S. Army Human Resources Command on April 25, 2013. Dr. Dennis Hopkins prepared a new Part B provider statement indicating that Plaintiff had an inability to perform at least two ADLs for over 120 consecutive days. Dr. Hopkins opined that Plaintiff had an inability to independently bathe and dress from December 12, 2011 to April 19, 2012. Dr. Hopkins noted that Plaintiff needed assistance "to bathe lower body and dry and dress" and "to dress lower body and tie shoes." CAR 131. Dr. Hopkins noted that he rendered this opinion from a review of the patient's medical records. CAR 133.

Dr. Benjamin G. Withers, a TSGLI Program Physician Consultant, conducted a review of the medical records and opined that the "[s]ubmitted documents do not indicate that the injury rendered the claimant incapable of performing an ADLs at day 16 after [the injury], let alone for 30 or 120 days, per...