Masella v. Blue Cross & Blue Shield of Connecticut, Inc.
| Decision Date | 19 June 1991 |
| Docket Number | No. 1138,D,1138 |
| Citation | 936 F.2d 98 |
| Parties | Judith P. MASELLA, Plaintiff-Appellee, v. BLUE CROSS & BLUE SHIELD OF CONNECTICUT, INC., Defendant-Appellant. ocket 90-7992. |
| Court | U.S. Court of Appeals — Second Circuit |
Robert J. Cathcart, Hartford, Conn. (Shipman & Goodwin, Linda L. Yoder, of counsel), for defendant-appellant.
Ridgely W. Brown, Darien, Conn. (Brown & Brown, Heather M. Brown, of counsel), for plaintiff-appellee.
Robert L. Hirtle, Jr., Brendan T. Flynn, Hartford, Conn. (Rogin, Nassau, Caplan, Lassman & Hirtle, of counsel), for Conn. Soc. of Oral & Maxillofacial Surgeons, amicus curiae.
Before FEINBERG, VAN GRAAFEILAND and McLAUGHLIN, Circuit Judges.
Defendant Blue Cross & Blue Shield of Connecticut, Inc. (Blue Cross) appeals from a judgment of the United States District Court for the District of Connecticut, T.F. Gilroy Daly, J., in favor of plaintiff Judith Masella in the amount of $1,558.43 plus pre-judgment interest. Masella brought this action pursuant to the Employee Retirement Income Security Act (ERISA), 29 U.S.C. Sec. 1001 et seq., to recover benefits under an employee benefit plan consisting of Blue Cross health insurance policies. Blue Cross denied benefits for the non-surgical treatment of Masella's temporomandibular joint dysfunction (TMJ) on the ground that the treatment was dental rather than medical in nature and was therefore excluded from coverage by the health insurance policies at issue. After a bench trial, the district court, applying a de novo standard of review, ruled that Blue Cross's interpretation was erroneous, and accordingly awarded judgment to Masella. For the reasons set forth below, we affirm.
In mid-1985, Judith Masella consulted her dentist because she was suffering from a severe toothache, as well as facial pain, headaches, ringing in her ears, vertigo, stiffness in her jaw, shoulder and neck and other symptoms. Masella's dentist told her that her problem appeared to be with her jaw rather than with her teeth, and referred her to Dr. Robert Sorrentino, the co-director of the New Haven Craniofacial Pain Center, a center for the treatment of facial pain, TMJ and jaw deformity problems. After a number of diagnostic tests, Sorrentino concluded that Masella was suffering from TMJ, in her case a displaced disc in her left jaw joint.
Sorrentino, a dentist specializing in oral and maxillofacial surgery, initially recommended a non-surgical course of treatment for Masella. He prescribed an orthotic, an appliance that fit on Masella's teeth and was intended to reposition part of her jaw joint. Sorrentino also recommended biofeedback therapy, the use of transelectrical neural stimulators (TENS) and physical therapy for jaw muscle and neck muscle problems caused by the displacement of Masella's jaw joint. Masella followed the recommended course of treatment for some time, but it was of limited success in alleviating her symptoms; after further testing in September 1985, Sorrentino recommended surgery. Masella continued non-surgical treatment while considering Sorrentino's recommendation.
During 1985, when she was diagnosed as suffering from TMJ and received the non-surgical treatment described above, Masella had health insurance coverage with Blue Cross as a participant in an employee benefit plan offered by her husband's employer. The plan consisted of three components. The "Century Contract" provided basic coverage for medical/surgical procedures enumerated in the policy up to the amounts listed in a comprehensive fee schedule. A "Major Medical Expense Plan" supplemented the basic medical/surgical benefits provided by the Century Contract and also supplemented hospital benefits provided by the third component of the coverage, a hospital plan not relevant here. Both the Century Contract and the Major Medical Expense Plan contained exclusions for certain dental treatment, but neither specifically referred to TMJ. 1
Masella and Sorrentino submitted claims to Blue Cross for the non-surgical treatment of Masella's TMJ. Of the total claims of $2,313.51, Blue Cross paid $725.08, rejecting the balance of the claims as not covered.
When Masella received the first claim denials from Blue Cross, she visited the Blue Cross office and discussed the matter with a customer service representative. After Sorrentino recommended surgery, Masella also attempted to ascertain how much, if any, of the costs of the surgery Blue Cross would pay. After she was unable to obtain a satisfactory response, Masella contacted a television consumer reporter, who wrote to Blue Cross on her behalf. A series of letters were exchanged by Masella, Blue Cross and the reporter regarding the claim denials.
In the course of this correspondence, Blue Cross eventually gave Masella estimates of the amounts it would pay for the recommended surgery, but declined to specify a precise dollar amount until the surgery was actually performed. Because she was uncertain as to how much of the costs of the surgery Blue Cross would pay and was concerned about her ability to pay the unreimbursed costs, Masella elected not to go forward with the surgery, and no claim regarding the surgery is before us.
By letter dated November 18, 1985 from Customer Service Specialist Rita Marcinkus to the television reporter Masella had contacted, Blue Cross stated that the basis for the denial of Masella's claims for non-surgical treatment of TMJ was that the treatment was dental rather than medical. Marcinkus wrote that the Major Medical Expense Plan excluded coverage for "the non-surgical treatment of TMJ." Marcinkus went on to explain that the Century Contract covered certain "special services" such as physical therapy and certain diagnostic tests regardless of whether the services related to medical or dental problems and that Blue Cross had consequently paid a portion of Masella's claims.
At least some of the claim-denial forms Blue Cross sent to Masella contained a section captioned "Appeal Procedure" on the back of the form. That section stated that "You may also request a review of a denial of benefits for any claim ... by sending a written request to the Claim Review Unit, Customer Service Department, Blue Cross & Blue Shield of Connecticut" and also instructed the claimant that "You or your duly authorized representative ... may also submit issues and comments in writing."
In accordance with these instructions, Masella wrote to the Claim Review Unit on February 6, 1986. Masella noted that she had been corresponding with Marcinkus, asked if it would be necessary to appeal separately each denial of payment for treatments related to TMJ and requested that she be informed "what the status is of my request for a review of benefits denied to me for TMJ treatments." She received a reply from Marcinkus, who wrote,
If you wish to appeal a particular claims determination, please contact me directly and I will handle any review. Our position relative to the benefits available for the treatment of TMJ, however, will not vary from that stated in my previous correspondence. Our denial of the [orthotic] is therefore correct, and is not subject to further consideration.
Masella thereafter brought an action with several other plaintiffs in state court in Connecticut, asserting various claims against Blue Cross regarding the denial of benefits for TMJ treatment. Blue Cross removed the action to the United States District Court for the District of Connecticut on the ground that ERISA governed plaintiffs' claims. After additional proceedings, Masella eventually filed an amended complaint to assert a claim for benefits under an ERISA plan pursuant to 29 U.S.C. Sec. 1132(a), and also claimed that Blue Cross had violated the applicable procedural requirements under ERISA set forth in 29 U.S.C. Sec. 1133. After the court denied a motion by Blue Cross for a stay of proceedings in order to conduct an administrative review, the parties submitted, among other things, a statement of their contentions together with proposed findings of fact and conclusions of law pursuant to a pre-trial order. Among the contentions submitted by Blue Cross was the statement, "The claims were denied because treatment of TMJ relates to a dental condition, not a medical condition."
A two-day trial was held before Judge Daly in May 1990. Witnesses at trial included Masella, Sorrentino, Marcinkus and other Blue Cross employees. In addition, over the objection of Blue Cross, Masella was permitted to elicit expert testimony from Sorrentino regarding the nature of TMJ and its treatment and to call another expert witness on the same subject, Dr. Howard Mark, who like Sorrentino is a dentist specializing in oral and maxillofacial surgery. Both Sorrentino and Mark were permitted to offer their opinions that TMJ and its non-surgical treatment are medical rather than dental in nature.
Blue Cross offered evidence supporting its determination that the treatment of TMJ is dental in nature. A Blue Cross employee testified that in mid-1983, Blue Cross sent a questionnaire to its participating dentists in Connecticut to ask if they treated TMJ. Of approximately 2,000 dentists surveyed, 75 to 80 dentists responded, all stating that they did treat TMJ. Blue Cross next hired two consultants to determine whether TMJ is a medical or dental problem. One of the consultants, Dr. Wilbur Johnston, who is licensed in Connecticut for both dentistry and medicine and had been involved in treating numerous TMJ cases, testified at trial to his conclusion that TMJ is a dental problem. A report Dr. Johnston had prepared for Blue Cross in 1983 with his fellow consultant, Dr. Milton Lisansky, an orthodontist, was also admitted into evidence. The report was a one-page document on Blue Cross letterhead, which stated in part:
Temporomandibular Joint (TMJ) Dysfunction, sometimes called Myofascial Pain Dysfunction or...
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