Koffarnus v. United States

• Citation: 175 F.Supp.3d 769
• Decision Date: 29 March 2016
• Docket Number: CIVIL ACTION NO. 3:15-CV-00473-CRS
• Parties: Caitlyn Koffarnus, Plaintiff v. United States of America, Defendant
• Court: U.S. District Court — Western District of Kentucky

175 F.Supp.3d 769

Caitlyn Koffarnus, Plaintiff

v.United States of America, Defendant

CIVIL ACTION NO. 3:15-CV-00473-CRS

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

Signed March 29, 2016

Filed March 30, 2016

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

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

Memorandum Opinion

Charles R. Simpson III

, Senior Judge, United States District Court

I. Introduction

On September 6, 2011, a gunman opened fire at an IHOP in Carson City, Nevada. Sergeant Caitlin Koffarnus of the Army National Guard suffered a gunshot wound

to her foot.

The Army denied Koffarnus's claim for benefits under the Traumatic Servicemembers' Group Life Insurance Program. See 38 U.S.C. § 1980A

. After several administrative appeals and a final denial, Koffarnus sued the United States.

The United States moves to dismiss for lack of subject matter jurisdiction. In the alternative, the United States moves for summary judgment. For the reasons below, the Court will deny the motion and grant summary judgment to Koffarnus sua sponte .

II. Subject matter jurisdiction

“Subject matter jurisdiction is always a threshold determination.” American Telecom Co., L.L.C. v. Republic of Lebanon , 501 F.3d 534, 537 (6th Cir.2007)

. “As always, the party invoking federal jurisdiction has the burden to prove that jurisdiction.” Glob. Tech., Inc. v.

Yubei (Xin

X

iang) Power Steering Sys. Co., Ltd. , 807 F.3d 806, 810 (6th Cir.2015).

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. The Program provides a benefit when a servicemember suffers a traumatic injury. 38 U.S.C. § 1980A.

The statute says, “The 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

; see also , Foster v. United States , 111 Fed.Cl. 658, 663 (Fed.Cl.2013) (finding that the Federal Court of Claims lacked subject matter jurisdiction over a traumatic injury benefits claim because “38 U.S.C. § 1975 provides a ready avenue for Major Foster to find relief in district court.”).

The United States argues that this Court “lacks subject matter jurisdiction over two of Plaintiff's claims.” Def.'s Mem. Supp. Mot. Dismiss 16, ECF No. 11-1. However, the United States concedes, “it is undisputed that this Court has jurisdiction pursuant to 38 U.S.C. § 1975

.” Def.'s Reply Supp. Mot. Dismiss 2, ECF No. 18; see also , Compl. ¶ 4, ECF No. 1 (“This Court has jurisdiction over the parties under 38 U.S.C. [§] 1975, as well as under the terms of the TSGLI program, as any member who receives an adverse TSGLI decision may obtain judicial review in any United States District Court of competent jurisdiction.”).

The United States' argument that the Court lacks subject matter jurisdiction because the complaint's prayer for relief seeks a judgment of money damages is without merit. “A claim can be sufficient for subject-matter jurisdiction purposes even if it is unsuccessful and possibly verging on the foolhardy in light of prior precedent barring the relief sought.” Hamdi ex rel. Hamdi v. Napolitano , 620 F.3d 615, 628 (6th Cir.2010)

(internal quotation marks omitted).

The Court finds that it has subject matter jurisdiction under 38 U.S.C. § 1975

to hear Koffarnus's claim for an alleged wrongful denial of benefits under the Program.

III. Summary judgment standard

A party moving for summary judgment must show 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)

. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

IV. Certified administrative record

On September 6, 2011, around 9:00 am, Sergeant Koffarnus¹ was dining at an IHOP restaurant in Carson City, Nevada with four other uniformed members of the Army National Guard. A gunman opened fire, killing three National Guardsmen and a woman. Certified Admin. Record (“CAR”) 078, 160, ECF No. 11-2.

Koffarnus suffered a gunshot wound

to her left foot.² She underwent emergency surgery which removed dead tissue, sharp bone fragments, bullet fragments, and placed a metal external fixation device to the left side of her left foot. Id. at 050–052.

The day after the shooting, the hospital discharged her. Id. at 011. The discharge notice said, “activity as tolerated, no driving, avoid tub bath, keep leg elevated, may use ice pack for 20-30 min every 2-3 hours as necessary,” “keep incision area dry,” and “non weight bearing on L foot until cleared.” Id. at 056. Other discharge records indicate that Koffarnus needed assistive equipment

for ambulation³ and an assistive person for transferring,⁴ toileting, bathing, and dressing. Id. at 054.

In late September 2011, Koffarnus applied for benefits under the Program. Under Part A of the application, a servicemember discusses the traumatic injury. See, e.g. , id. at 007. Under Part A, Koffarnus wrote:

I was shot in the foot. A gunman came into the IHOP and shot a group of five soldiers. I watched my commander and supply sergeant die then rendered aide to my PSNCO, training NCO, and a civilian caught in cross-fire. I was shot in the foot and consequently will need a few surgeries to repair what little bones I have left.

Id.

Under Part B of the application, a medical professional describes the patient's “inability to independently perform activities of daily living.” See, e.g. , id. at 014. “Activities of daily living” (“ADLs”) include bathing, maintaining continence, dressing

, eating, toileting, and transferring. 38 C.F.R. § 9.20(e) (6(vi). Dr. Greg Lundeen, Koffarnus's treating orthopaedic surgeon, certified Part B. Dr. Lundeen certified that Koffanus “cannot stand on injured foot,” and was “unable to bathe independently,” but he did not indicate that Koffarnus was unable to do any other ADLs. CAR 014–015.

Throughout the fall of 2011, Koffarnus saw Dr. Lundeen for follow-up visits and treatment. On October 11, Lundeen removed the external fixation device

without anesthesia. Id. at 063. The record of her visit to Lundeen's office on October 27 is the first notation in her medical records that Koffarnus was “weightbearing to tolerance.” Id. at 064.

In December 2011, Koffarnus underwent reconstructive surgery. Id. at 067. Four weeks after reconstructive surgery, she was walking using a boot. Id. at 068. By February 14, 2012, Dr. Lundeen transitioned her to regular shoes, and she was to begin physical therapy. Id. at 069.

On December 19, 2011, the Program denied Koffarnus's claim for benefits. Id. at 020–022. Under the heading “Why Your Claim Was Not Approved,” the letter says,

Your claim for inability to independently perform Activities of Daily Living (ADLs) due to traumatic injury (other than traumatic brain injury

) was not approved because there is not enough

medical information to support that you could not perform ADLs independently.

Id. at 020.

In January 2012, Koffarnus filed for reconsideration. On April 11, 2012, the Program declined to overturn its previous decision. Id. at 029. The letter said,

The application submitted only has the ADL loss of bathing claimed. According to TSGLI standards, a Servicemember must be incapable of performing two or more of the six ADLs for a period of 30 days or greater. Also, there was no supporting medical documentation submitted with your claim. We must have medical documentation, from the period for which you are claiming that supports your losses. Such documentation could include discharge summaries, nurse's notes, occupational or physical therapy reports, etc.

Id.

On October 15, 2012, with the assistance of legal counsel, Koffarnus appealed to the U.S. Army's Human Resources Command. Under Part B of this application, Dr. Lundeen certified that from September 6, 2011 to October 20, 2011, Koffarnus was unable to independently bathe, dress, and transfer. Id. at 044–045. Dr. Bruce Ford, a podiatrist, also certified Part B of the application. Id. at 147.⁵ Koffarnus attached her hospital records, discharge instructions, and records from Dr. Lundeen's Reno Orthopaedic Clinic. Id. at 053–069.

As part of this appeal, Dr. Benjamin Withers, a consulting physician for the Army's Traumatic Servicemember's Group Life Insurance office, reviewed Koffarnus's claim. Id. at 086. Dr. Withers wrote, “26 year old female soldier injured in a workplace shooting (gunman in IHOP) suffering GSW to L foot resulting in STI & Fx that was repaired surgically that same day with ORIF & EXFIX. [s]he recovered w/o complication and was discharged to out-patient status.” Id. Withers recommended disapproving Koffarnus's claim, concluding, “Otherwise healthy Pts [patients] are not rendered ADL-incapable by single limb trauma/dysfunction/immobilization. Submitted documents do not indicate that the injury rendered the claimant incapable of performing any ADLs for 30+ days, per TSGLI guidelines.” Id. On November 8, 2012, the appeals panel denied Koffarnus's claim. Id. at 085.

On September 5, 2013, the Army Board for the Correction of Military Records (the “Board”) heard Koffarnus's final administrative appeal. In addition to the previous medical records submitted, Koffarnus also offered a letter from her spouse and five pictures of her injury and the external fixation device

. Id. at 136, 155–59. Her spouse wrote,

Assistance bathing: She could not physically get in and out of the bath tub, and with her cast, she could not stand in

...