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Concilio v. CIGNA Health And Life Insurance Co.

United States District Court, D. Colorado

July 24, 2018

CIGNA HEALTH AND LIFE INSURANCE COMPANY, a Connecticut corporation, Defendant.



         In this case brought pursuant to 29 U.S.C. § 1132(a) of the Employee Retirement Income Security Act of 1974 (“ERISA”), Plaintiff Rebecca Concilio (“Concilio”) challenges the decision of Defendant Cigna Health and Life Insurance Company (“Cigna”) to deny pre-authorization for a spinal fusion surgery that Concilio believes is necessary to relieve her lumbar pain. After completion of briefing, the Court referred the matter to United States Magistrate Judge Michael J. Watanabe (since retired) for a report and recommendation. (ECF No. 34.) The Magistrate Judge issued his report and recommendation (“Recommendation”), recommending that Cigna's denial be upheld. Concilio timely objected (ECF No. 36) and Cigna responded to that objection (ECF No. 37). The Court has now reviewed the Recommendation, Concilio's objection, Cigna's response, as well as the parties' pre-Recommendation briefing (ECF Nos. 26- 29, 32-33) and many portions of the Administrative Record (ECF No. 15, cited below as “R.”).

         For the reasons explained below, the Court adopts all of the Magistrate Judge's recommendations save for his recommendation to uphold the decision of an external reviewer that evaluated and affirmed Cigna's denial. Cigna's denial is therefore vacated and remanded for re-submission to an external reviewer.


         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). In conducting its review, “[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions.” Id. An objection is proper if it is filed within fourteen days of the magistrate judge's recommendations and is specific enough to enable the “district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996) (internal quotation marks omitted).

         Concilio timely objected to the Recommendation. (ECF No. 36.) Concilio objects to nearly every portion of the Recommendation that disfavors her position, and her objections are sufficiently specific to focus the Court's attention on the matters truly in dispute. Accordingly, the Court must review de novo the matters objected to.


         The Administrative Record reveals the following.

         A. Concilio's Health Plan

         At all times relevant to this dispute, Concilio participated in a Cigna-administered, ERISA-governed health plan offered by her employer. (R. at 51, 53, 126-27.) The plan covered medical services and supplies “recommended by a Physician, and [that] are Medically Necessary for the care and treatment of an Injury or Sickness, as determined by Cigna.” (R. at 22, 93.) The plan did not cover “experimental, investigational or unproven services, ” which are services “that are determined by the utilization review Physician to be . . . not demonstrated, through existing peer-reviewed, evidence based, scientific literature to be safe and effective for treating . . . the condition or sickness for which its use is proposed.” (R. at 35, 108.)

         As part of enforcing the medical necessity requirement and the experimental/ investigational/unproven exclusion, Concilio's plan required pre-service authorization for most surgical procedures. (R. at 47, 121-22.) If Cigna denies pre-service authorization, a claimant who intends to seek redress for that denial must first submit an internal appeal. (Id.) If the internal appeal is unsuccessful, the claimant has the option of requesting an external appeal to be decided by an “Independent Review Organization, ” or to file a lawsuit such as this one. (R. at 48-49, 130-31.) If the claimant elects an external appeal and it is successful, Cigna “will abide by [that] decision.” (R. at 48, 130.) If it is unsuccessful, the claimant's only remaining recourse is a lawsuit. (R. at 49, 131.)

         B. Concilio's Lumbar Injury & Treatment Received from Dr. Cain

         1. The Injury Concilio was injured in an automobile accident in September 2013. (R. at 413.) She was able to walk away from the accident but began feeling low back pain immediately. (Id.) X-rays of her lumbar spine showed disc space narrowing at ¶ 4-5 and L5-S1. (Id.)

         2. Multiple Visits to Dr. Cain

         In November 2013, Concilio visited an orthopedic surgeon, Dr. Christopher Cain. She reported to Dr. Cain that she had recently tried physical therapy, which “tended to aggravate rather than help her pain.” (R. at 415.) Dr. Cain nonetheless recommended that Concilio “focus on core stabilization” and he “demonstrated exercises she should perform on a daily basis at home.” (Id.)

         The following month, Concilio had an MRI on her lumbar spine and then returned to Dr. Cain. (R. at 409.) Consistent with her prior x-rays, the MRI revealed “degeneration of L4-5 and L5-S1 with reduced disk height at both levels.” (Id.) But there was no “neural compression or instability” (the matter of spinal instability becomes important below) so “surgery should be considered a last resort.” (R. at 409-10.)

         Dr. Cain recommended that Concilio

focus on core stability and weight reduction. She admitted that she ha[d] not been performing the exercises [he] demonstrated and asked her to perform previously on a regular basis, and [he] went over the importance of [those exercises] and again demonstrated how they should be done.

         (R. at 410.)

         Concilio saw Dr. Cain again in April 2014. Concerning weight loss, she reported that her efforts have been unsuccessful and that she planned to go to her primary care physician to explore whether some medical condition might be preventing her ability to lose weight. (R. at 404.) As for the recommended core strengthening exercises, she reported “difficulty . . ., particularly any extension activities as this aggravates her pain.” (R. at 406.) Dr. Cain therefore discussed “ways she could modify her exercises in order to limit the symptoms.” (Id.) He further advised 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.” (Id.) Dr. Cain informed Concilio that if she wanted to explore her surgical options seriously, he would first “request CT discography to ensure the degeneration we see is actually responsible for her [pain].” (Id.)

         Concilio underwent the CT discography procedure and again returned to Dr. Cain in May 2014. At the discography procedure, the radiologist injected a contrast fluid into the affected discs (L4-5 and L5-S1) as well as into the normal-looking disc immediately above (L3-4) as a control. (R. at 402.) The injection into the control disc produced no pain. (R. at 400.) The injections into the affected discs both produced the sort of lumbar pain Concilio has felt since her auto accident. (R. at 401.) The radiologist also observed grade 5 annular tears in both of the affected discs. (R. at 403.) Finally, at the L5-S1 level, some of the injected fluid leaked from the disc, a situation known as “extravasation.” (Id.)

         Interpreting these results, Dr. Cain said “the result was pretty clear cut” in “confirm[ing] a localized origin of her back and leg pain.” (R. at 396.) Dr. Cain discussed the types of surgical procedures Concilio could undergo given those results, and Concilio elected for an anterior lumbar interbody fusion (“ALIF”) procedure. (Id.)

         3. Denial of Pre-Service Authorization

         Dr. Cain submitted a pre-service authorization request for a two-level ALIF, which Dr. Gregory Przybylski, a Cigna medical director, denied in June 2014. Dr. Przybylski explained that “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), ” so the proposed procedure was “experimental/ investigational/unproven” and therefore ineligible for coverage. (R. at 419.)

         Dr. Przybylski also reasoned that Concilio had not met the requirements for a single-level fusion procedure in the absence of lumbar instability. Those requirements are:

• unremitting pain and significant functional impairment for at least 12 months that persists despite at least 6 consecutive months of structured, physician-supervised, conservative medical management including all of the following components:
• exercise, including core stabilization exercises
• nonsteroidal and/or steroid medication (unless contraindicated)
• physical therapy, including passive and active treatment modalities
• activity/lifestyle modification
• single level degenerative disc disease, demonstrated on appropriate imaging studies (i.e., computerized tomography [CT] scan, magnetic resonance imaging [MRI], or discography) as the likely cause of pain
• documentation from a primary care physician, neurologist, physiatrist, psychiatrist or psychologist indicating both of the following:
• absence of untreated, underlying psychological conditions/issues (e.g., depression, drug and alcohol abuse) as a contributor to chronic pain
• a statement indicating that the individual has completed a course of cognitive behavioral therapy (e.g., 8-10 sessions, face-to-face interaction, may also include ...

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