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BUSHMAN v. STATE MUT. LIFE ASSUR. CO. OF AMERICA

February 16, 1996

BERNARD J. BUSHMAN, Plaintiff,
v.
STATE MUTUAL LIFE ASSURANCE COMPANY OF AMERICA n/k/a ALLMERICA FINANCIAL, Defendant.



The opinion of the court was delivered by: GETTLEMAN

 This action, having been tried upon the facts by the court without a jury on January 31, 1996, on plaintiff's motion for a preliminary injunction pursuant to Fed. R. Civ. P. 65, the court makes the following findings of fact and conclusions of law.

 A. Stipulated Findings of Fact and Conclusions of Law.

 The parties have stipulated to the following findings of fact and conclusions of law, which are hereby adopted by the court.

 1. The plaintiff was at relevant times covered under an employee welfare benefit plan ("the plan") established and maintained by his employer Continental Glass & Plastic, Inc. (Continental Glass") under the Employee Retirement Income Security Act ("ERISA") (29 U.S.C. § 1001, et seq.). Coverages under the plan were provided by ALLMERICA under Plan Number GP-26232, effective April 1, 1995. The Certificate issued under the plan ("the Certificate") provides, in relevant part, as follows:

 
- No benefits are payable for charges for any care, treatment services or supplies, whether or not recommended or prescribed by a doctor, that are any of the following:
 
* educational, experimental or investigational in nature. In making this determination, we will take into consideration appropriate factors, including but not limited to:
 
-- whether or not the procedure is in a specific phase of research or clinical trial. No benefits will be payable if the covered person is participating in a Phase I or Phase II Study or Clinical Trial. However, benefits will be payable if the covered person is participating in a randomized Phase III Study sponsored by and subject to the protocols of the National Cancer Institute;
 
-- the protocol document;
 
-- the informed consent document; and
 
* * *
 
* not approved for reimbursement under Medicare and/or Medicaid or any similar state program.
 
- No benefits are payable for any care, treatment, services or supplies for or related to bone marrow transplants, except for the following:
 
* high and intermediate grade, non-Hodgkin's lymphoma, second remission;
 
* Hodgkin's lymphoma, second remission;
 
* neuroblastoma, in advanced stage in children;
 
* acute lymphocytic leukemia following second or subsequent remissions;
 
* acute non-lymphocytic leukemia in first or second remissions;
 
* chronic myelogenic leukemia;
 
* acute myelogenic leukemia in first and second remission;
 
* aplastic anemia;
 
* Fanconi's syndrome in children;
 
* infantile malignant osteopetrosis;
 
* thalassemia major;
 
* Wiskott-Aldrich syndrome; and
 
* severe combined immuno deficiency syndromes.

 2. The plaintiff has been proposed to receive high dose chemotherapy ("HDC") treatment for non-Hodgkin's lymphoma. HDC treatment generally falls into two categories, autologous treatment and allogeneic treatment. Autologous treatment involves the harvesting and reinfusion of stem cells from the patient himself or herself; allogeneic transplant ...


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