Hensley v. United States

• Decision Date: 22 February 2018
• Docket Number: Civil Action No. 16–1389 (TJK)
• Parties: John HENSLEY, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Columbia

292 F.Supp.3d 399

John HENSLEY, Plaintiff,

v.UNITED STATES of America, Defendant.

Civil Action No. 16–1389 (TJK)

United States District Court, District of Columbia.

Signed February 22, 2018

Jacob Robert Jagdfeld, Johnson Becker, PLLC, Saint Paul, MN, for Plaintiff.

Fred Elmore Haynes, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge

Plaintiff John Hensley ("Hensley"), a former Staff Sergeant in the West Virginia Air National Guard, suffered a serious shoulder injury when he fell from an aircraft in 2008. In 2013, he submitted a claim for $100,000 under an insurance program for members of the military who have suffered traumatic injuries, Servicemembers' Group Life Insurance Traumatic Injury Protection ("TSGLI"). The Air Force denied Hensley's claim, concluding that Hensley had not shown that his injury qualified him for TSGLI benefits. Hensley sought review before the Air Force Board for Correction of Military Records (the "AFBCMR" or "Board"), which declined to grant his application. Hensley then brought this lawsuit against the United States (the "Government"), asserting that the AFBCMR's decision should be reversed on the ground that it was arbitrary and capricious in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq.

Hensley and the Government have cross-moved for summary judgment. See ECF No. 9 ("Pl.'s Mot."); ECF No. 13 ("Def.'s Cross–Mot."); see also ECF No. 15 ("Pl.'s Reply"); ECF No. 17 ("Def.'s Reply"). For the reasons explained below, Hensley's motion will be granted in part and denied in part, and the Government's motion will be denied.

I. Background

A. The TSGLI Program and Claims Process

Members of the U.S. armed services are automatically enrolled in the Servicemembers' Group Life Insurance program, although they may opt out. See 38 U.S.C. § 1967 ; Ridgway v. Ridgway , 454 U.S. 46, 50–54, 102 S.Ct. 49, 70 L.Ed.2d 39 (1981) (describing origins of program). TSGLI is an automatic rider to that insurance and covers traumatic injury. See 38 U.S.C. § 1980A ; Austin v. Prudential Ins. Co. of Am. , No. SA-12-CA-473, 2013 WL 12094176, at *2 (W.D. Tex. Apr. 5, 2013).

"To receive TSGLI benefits, a service member must have suffered a ‘qualifying loss.’ " Austin v. United States , 614 Fed.Appx. 198, 200 (5th Cir. 2015) (quoting 38 U.S.C. § 1980A(a)(1) ). By regulation, the government has promulgated a schedule of losses describing the types of injuries that are covered. 38 C.F.R. § 9.20(f). They include traumatic non-brain injuries "resulting in an inability to perform at least 2 Activities of Daily Living (ADL)." Id. § 9.20(f)(20). "The statute recognizes six ADLs: bathing, continence, dressing

, eating, toileting, and transferring (in or out of a bed or chair)." Austin , 614 Fed.Appx. at 200 (citing 38 U.S.C. § 1980A(b)(2)(D) ). "TSGLI will pay $25,000 for each consecutive 30–day period of ADL loss, up to a maximum of $100,000 for 120 consecutive days." Id.

The Fifth Circuit has summarized the TSGLI claims process as follows:

To apply for benefits, a plan participant must file a form SGLV 8600 with his service branch. This form has two parts:

Part A, to be filled out by the claimant, and Part B, the "Medical Professional's Statement," in which the claimant's physician must certify the qualifying losses claimed....

The claim is then reviewed by a certifying official at the claimant's branch of service. If that official approves any benefits, he instructs ... the private insurance company that administers the TSGLI program[ ] to pay such benefits and to notify the claimant if any part of the claim has been denied.

Id. at 200. Within a year of the initial decision, service members may appeal in writing "to the office of the uniformed service identified in the decision regarding the member's eligibility for the benefit." 38 C.F.R. § 9.20(i)(1).

Benefits decisions may be further appealed to the relevant board for correction of military records, such as the AFBCMR. See, e.g., Blackwood v. United States , 187 F.Supp.3d 837, 839 (W.D. Ky. 2016). Such boards may act "to correct an error or remove an injustice." 10 U.S.C. § 1552(a)(1). In AFBCMR proceedings, the "applicant has the burden of providing sufficient evidence of material error or injustice." 32 C.F.R. § 865.4(a). The AFBCMR panel appointed to hear the case may request advisory opinions and information from other Air Force officials, in which case the applicant will be given the opportunity to respond. See id. § 865.4(a)(1), (b). The panel may also, in its discretion, order a hearing or request additional information from the applicant. See id. § 865.4(a)(2), (d).

Dissatisfied applicants for TSGLI benefits may also seek review in federal district court. District courts have original jurisdiction to hear civil actions against the United States relating to TSGLI. See 38 U.S.C. § 1975.

B. Hensley's Injury and Medical Treatment

On February 20, 2008, Hensley slipped on an icy ladder while inspecting an aircraft and fell head-first approximately 15 feet.¹ AR 2 [2], 80 [49], 553 [80], 659 [87], 778 [92]. Hensley's most serious injuries were to his left shoulder: he suffered a fractured humerus

, a torn labrum, and possible ligament damage. AR 2 [2], 80 [49], 778 [92]. He received prompt medical attention at a local hospital, where he was given a sling and advised to consult an orthopedist. AR 2 [2], 70 [42], 82 [51], AR 553 [80]. At that time, he was ordered to remain off work for a week and to do no lifting with his left arm. AR 82 [51]. On February 25, 2008, he saw the orthopedist, who provided him with a shoulder immobilizer, prescribed him painkillers, and concluded that he would likely have to remain off work for three months. AR 553–54 [80–81]. In March, Hensley began physical therapy three times per week. AR 545 [82]. It appears that Hensley ultimately returned to work on April 21, 2008, but only on "light duty" (with limitations on activities such as lifting and overhead work) as recommended by his orthopedist. AR 75 [44], 83 [52], 540 [78], 659 [87].

Hensley's medical and physical-therapy records show that he continued to suffer pain and a limited range of motion in his left shoulder over the next six months. For example, on May 19, Hensley's therapist reported that his shoulder "is still very weak & pain in all planes of motion." AR 492 [74]. The next day, the orthopedist reported that Hensley's left shoulder "show[ed] much better range of motion," and that Hensley was "[s]till having pain, but overall doing okay." AR 83 [52]. On June 30, Hensley's therapist noted that he had "numbness" in his left hand. AR 498 [76]. Hensley also reported "pain and weakness w/ overhead activities" and "difficulty w/ gripping items." Id. On August 19, Hensley said that "numbness & tingling in arm & shoulder bother him," that he had pain when reaching overhead, and that he was "unable to grip onto things." AR 76 [45]. Nonetheless, his orthopedist ordered him discharged from physical therapy at that point. Id.

The records contain a few explicit references to Hensley's ability to perform ADLs. A note from his physical therapist, dated April 9, 2008, stated that he was "still limited at home w/ self care and home care ADLs." AR 495 [75]. On November 18, 2008, Hensley underwent a "functional capacity evaluation" with a physical therapist at the request of his orthopedist, who wanted to determine whether Hensley could be released from light duty. AR 68 [40], 468 [56]. Hensley reported that he continued to avoid using his left arm due to pain. AR 476 [64]. In a written questionnaire, he checked "no" when asked if he needed "regular assistance with dressing

." AR 377 [55]. He added, "well I use slip on shoes so I don't need help, but it is tuff to do my work boots." Id. The official report of the evaluation, dated December 11, 2008, recorded further comments from Hensley on dressing and bathing:

I have some difficulty but I can do it. Getting in and out of the deep whirlpool tub which I use every day because it makes the pain better (no grab bars), getting work boots on because I have to tie them and tuck the strings in (up to mid-calf). My son will often help me get them off at the end of the day.

AR 472 [60]. Hensley also reported that he could not yet do many household chores such as mowing the lawn or vacuuming. Id. The therapist recommended that Hensley remain on light duty due to his poor balance when using a ladder and his inability to reach overhead. AR 471 [59].

Hensley continued to experience pain after November 2008. In June 2009, he had surgery to repair the torn labrum in his shoulder. AR 764 [91].

C. Procedural History

In April 2013, Hensley applied for $100,000 in TSGLI benefits, claiming that his shoulder injury had left him unable to dress and bathe himself without assistance for at least 120 days, from February 20, 2008, to August 20, 2008. AR 2 [2], 37–39 [21–23]. His application included a signed certification of his claim by a physician, Dr. Hopkins. AR 32–39 [16–23]. Dr. Hopkins indicated that he had not personally observed Hensley's injuries, but had instead reached his conclusions based on a review of Hensley's medical records. AR 39 [23].

On June 27, 2013, the insurance company that administers the TSGLI program notified Hensley by letter that his claim had been denied. AR 41 [24]. The letter explained that "the medical documentation provided does not indicate that your loss met the standards for TSGLI," and that "a claimant must have been unable to independently perform at least two activities of daily living (ADLs) for a period of 30 consecutive days." Id. The letter further explained that an applicant is unable to perform an ADL "independently" if he requires either "physical assistance," "stand-by assistance," or "verbal assistance" to do so. Id. The letter explained that Hensley could appeal the decision to "AFPC/DPFCS." AR 41–42 [24–25].²

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