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Concilio v. Cigna Health and Life Insurance Co.

United States District Court, D. Colorado

November 30, 2017



          Michael J. Watanabe United States Magistrate Judge.

         This case is before the Court on Plaintiff Rebecca Concilio's (“Concilio”) Complaint (Docket No. 2) to recover health insurance benefits under section 29 U.S.C. § 1132(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001, et seq. Judge William J. Martinez referred the Complaint to the undersigned Magistrate Judge for a recommended disposition. (Docket No. 34.) The Court has reviewed the Administrative Record (“AR”) (Docket No. 15), the parties' Opening Briefs (Docket Nos. 26 & 27), Response Briefs (Docket Nos. 28 & 29), and Reply Briefs. (Docket Nos. 32 & 33.) The Court has taken judicial notice of the Court's file, and considered the applicable Federal Rules of Civil Procedure and case law. The Court now being fully informed makes the following findings of fact, conclusions of law, and recommendation.[1]

         I. BACKGROUND

         Concilio is a dental assistant seeking medical benefits under the DentalOne Partners Open Access Plus Medical Benefits Health Savings Plan Account (the “Plan”). The Plan is sponsored and administered by DentalOne, Inc. (AR at 156-27.) Defendant Cigna Health and Life Insurance Company (“Cigna”) insures the Plan and acts as the claim administrator. (AR at 127.) DentalOne, Inc. has delegated to Cigna “the discretionary authority to interpret and apply plan terms and to make factual determinations in connection with its review of claims under the plan.” (Id.) This includes the discretionary authority “to perform a full and fair review, as required by ERISA, of each claim denial which has been appealed by the claimant or his duly authorized representative.” (Id.)

         Concilio was injured in an automobile accident on September 19, 2013, when her vehicle was struck by another vehicle and hit a concrete barrier at about 65 miles per hour. (AR at 413; 441.) She was evaluated for lower back pain by Dr. Christopher Cain on November 5, 2013. (AR at 413.) Dr. Cain noted that since the accident, Concilio had undergone “some physical therapy that has tended to aggravate rather than help her pain, ” and that radiographs revealed “reduced disk height at both L4-5 and L5-S1, with the changes at ¶ 5-S1 more advanced.” (AR at 415.) Concilio was advised to focus on core stabilization and she was given exercises to perform. (Id.)

         Concilio returned to Dr. Cain on December 26, 2013, due to worsening pain that physical therapy did not alleviate. An MRI revealed degeneration of L4-5 and L5-S1 with reduced disk height at both levels. (AR at 409; 411-12.) Concilio and Dr. Cain discussed “at length about the fact that in the absence of neural compression or instability surgery should be considered a last resort, and that at this stage she should focus on core stability and weight reduction.” (AR at 409-10.) Concilio admitted that she had not been doing her exercises (AR at 410), although it appears that she told physician's assistant Robert V. Cooley Jr. that she had been performing her exercises “several times per week.” (AR at 408.) Medical staff stressed the importance of these exercises-mini crunches and back extensions, performed twice a day, and swimming-and Concilio was told to follow up in three months. (AR at 407.) At that time, if pain persisted in spite of the regular and appropriate performance of the stabilization exercises, surgery would be discussed as an option. (AR at 410.)

         Concilio was evaluated by Dr. Cain again on April 3, 2014. (AR at 406.) She had been unable to lose weight or do her core strengthening exercises, stating that any extension activity aggravated her pain. (AR at 404; 406.) Although she had been walking for exercise, the pain was too great for her to ride her horses at more than a walking pace. (Id.) Dr. Cain informed Concilio that “it is up to her to decide if her symptoms and limitations warrant surgery as she has no features of instability on flexion and extension and no neural compromise despite her lower limb numbness.” (AR at 406.) She was told to consult with her primary care physician regarding whether to proceed with a CT discography to confirm that the disc degeneration was responsible for her pain. (Id.)

         Concilio underwent a discography on April 30, 2014. (AR 402-03.) Discs L3-L4 (the control disc), L4-L5, and L5-S1 were injected with dye in order to mimic her lower back pain. (AR at 400-01.) Concilio had no pain at the L3-L4 control level, but she experienced significant increases in pain at ¶ 4-L5 and L5-S1. (AR at 401.)

         Dr. Cain reviewed the result of the discography with Concilio on May 8, 2014. (AR at 396.) Dr. Cain opined that “the result was pretty clear cut in that the results confirm a localized origin of her back and leg pain, ” and stated that Concilio “has low back pain and radiating S1 left leg pain progressively worsening over the past six months despite extensive non operative treatment.” (Id.) The two discussed her options going forward, including surgical procedures such as disc replacement and Anterior Lumbar Interbody Fusion (“ALIF”). (Id.) Concilio favored disc fusion, and she was put in touch with the surgery scheduler to arrange for the ALIF procedure. (Id.)

         The Plan required Concilio or her physician to obtain preservice authorization from Cigna that the surgery was medically necessary. (AR 47; 122.) On June 17, 2014, Cigna denied Concilio and Dr. Cain's request to cover the ALIF procedure. (AR at 418.) Dr. Gregory Przybylski, a Cigna medical director, made the decision to deny Concilio's treatment, stating:

Based upon current available information, coverage cannot be approved because there is insufficient scientific evidence that shows the safety and/or effectiveness of lumbar fusion for the management of multiple-level degenerative disc disease (more than 1 level). At the present time, each is considered non-standard therapy and falls under the category of experimental/investigative/unproven. Your benefit plan does not cover experimental/investigational/ unproven services.

(AR at 419.)

         In the denial, Dr. Przybylski also cited Cigna's criteria for authorizing a single lumbar fusion, and found that Concilio did not establish that this procedure was medically necessary. Dr. Przybylski determined that the medical records and documentation did not confirm that Concolio: (1) had “unremitting pain accompanied by significant functional impairment for at least 12 months”; (2) had “failed at least 6 months of a structured, physician-supervised conservative medical management program as outlined including exercise, medications, physical therapy, and activity modification”; (3) had single degenerative disc disease as the likely cause of her pain; (4) had another qualified physician to “support the absence of untreated, underlying psychological conditions/issues as a contributor to chronic pain”; and (5) had “completed a course of cognitive behavioral therapy as outlined.” (AR at 419-20.)

         The denial was also accompanied with an explanation of how Concilio could appeal Cigna's decision. (AR at 420.) A request for review could be done in writing or by phone, and the appeal goes to a different physician. (AR at 420-21.)

         Dr. Cain called Dr. Przybylski on June 24, 2014 for a “Peer to Peer” conversation. (AR 307; 416-17.) Dr. Cain “argued about the overwhelming international evidence supporting one or two level fusion” for degenerative disc disease, while Dr. Przybylski “explained Cigna's noncoverage of multilevel fusion for this clinical indication and the rationale behind it.” (Id.) The doctors also discussed the Brox and Fritzell studies. (Id.) Dr. Przybylski did not change his original decision. (Id.) No appeal was taken.

         Following the denial, on July 27, 2014, Concilio presented to Dr. Michael J. Rauzzino, a neurosurgeon at Front Range Neurosurgery, for a second opinion. (AR at 432.) Although he expressed reservations about “performing such an aggressive procedure at age 26, ” Dr. Rauzzino stated that the two-level anterior lumbar fusion proposed by Dr. Cain was reasonable in light of the severity of the findings and Concilio's symptoms. (AR at 434.) Dr. Rauzzino did not think that epidural steroid injections would be helpful, and did “not know that there is any additional therapy to be done.” (Id.) During a follow-up visit on September 14, 2014, Dr. Rauzzino confirmed his impression that Concilio would be a good candidate for a L4-S1 fusion. (AR at 430-31.)

         Cigna denied Concilio's second request for surgery on October 16, 2014. (AR at 441.) On October 21, 2014, Dr. Przybylski and Dr. Rauzzino had a “Peer to Peer” conversation about the denial, during which Dr. Rauzzino expressed confusion as to why Cigna covered single level fusions but not two-level fusions. (AR at 442-43.) Dr. Przybylski told him he stopped performing two-level fusions for degenerative disc disease in 2000 due to limited observable benefits, and the two argued about the literature on subject. (Id.) Dr. Przybylski maintained his denial of the procedure. (Id.)

         On November 3, 2014, Dr. Rauzzino appealed the decision. (AR at 452-54.) In his appeal, Dr. Rauzzino cited the unfairness of Cigna's authorization of the discography, which he described as a painful and invasive diagnostic procedure, when there was no realistic expectation that the fusion would be approved. (AR at 453.) He also stated that two-level fusions are not “experimental, ” but are instead considered routine and appropriate under the Colorado State Workers' Compensation guidelines. (Id.) Dr. Rauzzino had first-hand experience of this; he sat on the Colorado Medical Society Board, which had recently reviewed the workers' compensation low back pain guidelines. (Id.) He also stated that other insurance companies routinely permit two-level fusions. (Id.)

         In addition to drafting the appeal, Dr. Rauzzino evaluated Concilio on November 3, 2014. (AR at 455.) He opined that she did not need cognitive behavioral therapy to treat her back pain, and stated that although conservative therapy has failed, ...

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