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Berkowitz v. United Airlines Employee Welfare Benefit Plan

November 10, 2009


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


Plaintiff Logan Berkowitz has sued the United Airlines Employee Welfare Benefit Plan (the Plan) for wrongful denial of benefits under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132 (a)(1)(B). The Plan has moved for summary judgment on Berkowitz's claim. For the following reasons, the Court grants the Plan's motion.


Because the Plan has moved for summary judgment, the Court views the facts in the light most favorable to Berkowitz and draws reasonable inferences in his favor. See, e.g., Nat'l Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008).

Berkowitz is a beneficiary of health care benefits under the Plan, which is administered by Blue Cross Blue Shield of Illinois (Blue Cross). To qualify for payment, the expense must be covered under the Plan. The Plan's Medical PPO Option defines covered expenses as those "expenses actually incurred by or on behalf of an Employee... but only to the extent that the expenses are... determined by the Plan Administrator... to be Medically Necessary... and... [are] not excluded by... the provisions of Section 8 of the Plan." Mot. for Summ. J., Ex. 6. Section 8.1 of the Plan, entitled "Medical Benefit Exclusions," provides that "no payment will be made under the Medical PPO Option provisions of the Plan for expenses incurred... for any service... that is not Medically Necessary." Id.

The Plan defines the term "medically necessary" as follows: Medically Necessary means that the services... are, in the determination of the Plan Administrator or its delegate: (1) appropriate and required for the diagnosis or treatment of the patient's condition; (2) safe and effective in curing or materially alleviating the patient's Sickness... according to accepted clinical evidence reported by generally recognized medical professionals or publications or provided in a clinically controlled research setting using a specific research protocol that meets [specific] standards...; (3) required for reasons other than the convenience of the patient, Licensed Physician, or other Eligible Provider; (4) provided that there is not a less intensive or more appropriate... treatment alternative that could have been used in lieu of the... service... given; and not... done primarily for research. Id.

Berkowitz suffers from maxillary hypoplasia, an underdeveloped upper jawbone, and mandibular hyperplasia, an overdeveloped lower jawbone, which has resulted in a skeletal malocclusion, namely an inability to close his mouth properly. Berkowitz's oral surgeon, Dr. Michael Steichen, met with Berkowitz and his parents on August 10, 2006 and discussed the possibility of combining orthodontics with orthognathic surgery to correct the malocclusion.

On August 28, 2006, Dr. Steichen sent a letter to Blue Cross requesting pre-approval for the proposed orthognathic surgery. In his letter, Dr. Steichen explained that "[Berkowitz's] chief complaint is the inability to chew because his teeth do not meet together properly, thus preventing proper mastication.... The medical necessity for the treatment is that the resultant abnormal growth has rendered the patient incapable of chewing normally." Id., Ex. 8. Dr. Steichen enclosed copies of Berkowitz's panorex, cephalometric x-ray, and photos for Blue Cross' review.

The record also includes an August 18, 2006 letter from Dr. Steichen to Berkowitz's orthodontist, Dr. Michael Hayward.*fn1 Id., Ex. 10. Dr. Steichen explained in the letter that the "night guard" Dr. Hayward had supplied to Berkowitz helped correct his lack of occlusion (i.e., the lack of contact of the upper and lower teeth when the jaws are closed) because it offered some occlusal contact. In the letter, Dr. Steichen identified Berkowitz's problems, which he said included severe class III malocclusion, maxillary hypoplasia, relative mandibular prognathism, and missing various permanent teeth. Dr. Steichen also included the tentative treatment plan that he discussed with Berkowitz and his parents on August 10, 2006, which included surgery on Berkowitz's upper and lower jawbones, removal of teeth, and placement of dental implants.

After receiving Dr. Steichen's initial request for pre-approval of the proposed orthognathic surgery, Blue Cross sent two letters to Dr. Steichen dated September 6, 2006 and October 10, 2006. Id., Exs. 11 & 12. The letters stated that Blue Cross needed additional information to complete its review. In the first letter, Blue Cross requested "[p]atient health history and physical form including functional complaints with physician summary and computer generated facial measurements." Id., Ex. 11. In the second letter, Blue Cross requested "[a]nthropometric imaging, historical medical record documentation of functional impairment and interventions including orthodontia if applicable." Id., Ex. 12.

In response, Dr. Steichen did not provide the medical history information that Blue Cross had requested. Rather, in a letter dated October 25, 2006, he essentially repeated his earlier comments, stating that Berkowitz "exhibits severe maxillary hypoplasia which has resulted in a skeletal malocclusion [that] prohibits the proper functions of speech and mastication and as such [his condition] satisfies the criteria for a functional impairment. Orthodontics alone will not correct this skeletal deformity." Id., Ex. 13. Dr. Steichen enclosed Berkowitz's "most recent cephalometric x-ray along with the tracing" for re-review by Blue Cross. Id. On November 17, 2006, Blue Cross determined that Berkowitz was not eligible for surgery under the Plan "because medical records do not document progressive functional impairment or masticatory abnormality that interferes with nutrition." Id., Ex. 14.

In letters dated January 15, 2007 and January 17, 2007, Drs. Hayward and Steichen responded to Blue Cross' denial of benefits and requested further review. Dr. Hayward stated that "[d]ue to many missing permanent teeth and severe malocclusion it is critical that [Berkowitz] undergo orthognathic surgery" and that, in his opinion, "if [Berkowitz's] malocclusion is not corrected with surgery it will very [sic] difficult to maintain his detention for his lifetime." Id., Ex. 15. Dr. Steichen stated in his letter that Berkowitz's condition was "not corrected by orthodontics alone" and that "[Berkowitz's] chief complaint is his inability to chew food normally and properly." Id., Ex. 16. Dr. Steichen enclosed another cephalometric x-ray and photos of Berkowitz.

Dr. Hayward included two pages of records with his letter. The first page consisted of five office visit note entries, the first dated August 8, 2006 and the last dated September 18, 2006. The second page was a medical intake form showing that Berkowitz visited the doctor on August 1, 2003 because of a "jaw problem" and that he suffers from mild asthma. Id., Ex. 22. The notes did not provide the Plan with new information about Berkowitz's condition. The most substantive notes that Dr. Hayward provided were dated August 10, 2006 and, though partially illegible, simply identified Berkowitz's condition: severe class III malocclusion, maxillary hypoplasia, relative mandibular prognathism, and missing various permanent teeth. Id.

Blue Cross referred Berkowitz's file to Dr. Henry Stempien, a board-certified dentist with a subspecialty certificate in oral and maxillofacial surgery. Dr. Stempien works for MES Solutions, a contract evaluation service. In a report for Blue Cross dated March 8, 2007, Dr. Stempien said that Dr. Steichen proposed the surgery for functional indications and that Berkowitz has a functional disturbance because he has difficulty chewing. Dr. Stempien determined, however, that the surgery was not medically necessary because Berkowitz's condition is "within normal limits" and "[t]here is no history of eating disorders, speech impediments, or continued temporomandibular joint problem." ...

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