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April 12, 2004.

DR. ROBERT I. STEINBERG, D.P.M., LTD., etc., Plaintiff

The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge


Dr. Robert I. Steinberg has brought this action against Railroad Maintenance and Industrial Health and Welfare Fund ("Fund") under the Employee Retirement Income Security Act ("ERISA"), more specifically 29 U.S.C. § 1132(a)(1)(B).*fn1 Dr. Steinberg claims that Fund improperly refuses to pay him for diagnostic testing that he performed on his patient Aurora Aceves ("Aceves"), who is a participant in Fund's health plan ("Plan"). Dr. Steinberg also claims that Fund failed to provide a full and fair review of his claim as required by Section 1133.

Both sides have moved for summary judgment, providing a joint appendix with the relevant exhibits.*fn2 For the reasons stated hereafter, this Court grants Dr. Steinberg's motion, denies Fund's motion and orders Fund to pay Dr. Steinberg $6,650, the amount at issue,
  Although Aceves was first diagnosed with diabetes in 1984, she had permitted it to go untreated for years before she came under the care of podiatrist Dr. Steinberg beginning around 1999 (Ex, A at 25, 144). Aceves had then lost much of the sensation in her feet and had developed ulcerations (id. at 120) for which Dr. Steinberg had provided treatment. On October 5, 2002 Aceves came to see Dr. Steinberg because she had been having shooting pains and strange tingling sensations in her feet and upper extremities (id. at 48). Because Dr. Steinberg's ensuing examination and findings*fn3 led him to make a preliminary diagnosis of neuropathy (nerve damage) — a common complication of diabetes that can increase the likelihood of amputation if untreated*fn4 — on October 12 Dr. Steinberg ordered and supervised a nerve conduction study and then sought payment for the testing from Fund (id. at 50-52). Fund solicited an independent medical review, and the board-certified orthopedic surgeon who reviewed Aceves' information found that the neurological testing "was not medically indicated" and therefore unnecessary (id. at 138).

  On February 21, 2003 Fund sent Aceves and Dr. Steinberg a letter denying the claim (Ex. A at 91). Dr. Steinberg requested an appeal, and Fund resubmitted the claim to another reviewer at the same company as before — this time a board-certified neurologist — who concluded that "there is insufficient medical. documentation to establish any of the ordered, performed, and interpreted electrophysiology studies were medically necessary," although the neurologist looked at no medical documentation other than the earlier doctor's report and a one-page certificate of medical necessity that Dr. Steinberg had submitted (id. at 126-27) — no review of any of the underlying medical records was undertaken by the neurologist.

  At Fund's April 17, 2003 Board of Trustees meeting the Board denied Dr. Steinberg's appeal (Ex. A at 156). Dr. Steinberg sought reconsideration of the Board's decision, but Fund refused (id. at 142-43), Dr. Steinberg then timely brought this action.

  Summary Judgment Standard

  Familiar Rule 56 principles apply to cross-motions for summary judgment just as they would to a garden-variety summary judgment motion (Int'l Bhd. of Elec. Workers, Local 176 v. Balmoral Racing Club. Inc., 293 F.3d 402, 404 (7th Cir. 2002)). Summary judgment is proper if the record demonstrates that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law (id.). Taking each motion separately, this Court must "consider the evidentiary record in the light most favorable to the non-moving party . . . and draw all reasonable inferences in his favor" (Leach y. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). If the trier of fact could return a verdict for the nonmoving party, the summary judgment motion should be denied (Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001)).

  Standard of Review

  Firestone Tire & Rubber Co., v. Bruch, 489 U.S. 101, 115 (1989) teaches:
Consistent with established principles of trust law, we hold that a denial of benefits under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.
  Where the plan grants discretionary authority — and the Plan here undisputedly does so — this Court reviews an administrator's or fiduciary's decision using the "arbitrary and capricious" standard (Hackett v. Xerox Corp. Long-Term Disability Income Plan, 315 F.3d 771, 773 (7th Cir. 2003)). Hackett, id. at 774 explains that although arbitrary-and-capricious review is deferential, it "is not a rubber stamp and deference need not be abject." Trombetta v. Cragin Fed. Bank for Savings Employee Stock Ownership Plan, 102 F.3d 1435, 1438 (7th Cir. 1996)(internal quotation marks and ellipses omitted) describes the standard this way:
A decision is arbitrary or capricious only when the decisionmaker has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence, or is so implausible that it could not be ascribed to difference in view or the product of expertise,
Medical Necessity
  Section 1132(a)(1)(B) permits a participant or beneficiary to bring a civil action "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." As an assignee of Aceves' rights, Dr. Steinberg assumes the role of beneficiary and can properly bring a claim under that section for covered Plan benefits (Plumb v. Fluid Pump Serv., Inc., 124 F.3d 849, 863 (7th Cir. 1999)).

  Dr. Steinberg contends that the neurological testing he performed on Aceves was medically necessary and thus should have been covered by the Plan. Fund responds that the medical records submitted with the claim did not adequately demonstrate that the procedure was needed. Under the Plan, "necessary treatment" is defined as "medical treatment which is consistent with currently accepted medical practice" (Ex. B at 12). And not surprisingly, "[i]t is well established that it is the language of an ERISA plan that controls" (Cozzie v. Metropolitan Life Ins. Co., 140 F.3d 1104, 1109 (7th Cir. 1999)),

  Dr. Steinberg argues that publications from the National Institute of Health and the American Diabetes Association demonstrate that the testing he performed was consistent with currently accepted medical practice. Fund, on the other hand, claims that its decision was reasonable because two board-certified physicians reviewed Aceves' medical records (at least those portions that were provided to Fund and both concluded that the treatment was not medically indicated and was unnecessary.

  At this stage of the parties' dispute, this Court cannot determine as a matter of law that Fund's substantive determination was so implausible or so inadequately supported (or so unsupported) that it was arbitrary and capricious. To make such a ruling this Court would have to engage in medically-related findings and conclusions that it is not equipped to make at this summary judgment stage, which requires the adoption ...

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