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Jacquez v. Health & Welfare Department of Construction

United States District Court, N.D. Illinois, Eastern Division

December 4, 2014

GUILLERMO JACQUEZ, on behalf of Peter Jacquez, a minor, Plaintiff,
v.
HEALTH & WELFARE DEPARTMENT OF THE CONSTRUCTION AND GENERAL LABORERS' DISTRICT COUNCIL OF CHICAGO AND VICINITY (a/k/a Chicago Laborers' Welfare Fund), Defendant.

MEMORANDUM OPINION AND ORDER

JOHN W. DARRAH, District Judge.

Plaintiff Guillermo Jacquez ("Jacquez") filed a Complaint against Defendant, the Health & Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity (the "Fund"), asserting that the Fund violated § 502(a)(1)(B) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132. The parties filed cross-motions for summary judgment as to Count I of the Complaint.[1] For the reasons set forth more fully below, both Motions for Summary Judgment are denied; and the matter is remanded for a redetermination of benefits eligibility.

LOCAL RULE 56.1

Local Rule 56.1(a)(3) requires the moving party to provide "a statement of material facts as to which the party contends there is no genuine issue for trial." Ammons v. Aramark Uniform Servs., 368 F.3d 809, 817 (7th Cir. 2004). Local Rule 56.1(b)(3) requires the non-moving party to admit or deny every factual statement proffered by the moving party and to concisely designate any material facts that establish a genuine dispute for trial. See Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir. 2005). Pursuant to Local Rule 56.1(b)(3)(C), the nonmovant may submit additional statements of material facts that "require the denial of summary judgment. Local Rule 56.1(b)(3)(C) further permits the nonmovant to submit a statement "of any additional facts that require the denial of summary judgment...." To the extent that a response to a statement of material fact provides only extraneous or argumentative information, this response will not constitute a proper denial of the fact, and the fact is admitted. See Graziano v. Vill. of Oak Park, 401 F.Supp.2d 918, 936 (N.D. Ill. 2005). Similarly, to the extent that a statement of fact contains a legal conclusion or otherwise unsupported statement, including a fact that relies upon inadmissible hearsay, such a fact is disregarded. Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997).

BACKGROUND

The following facts are taken from the parties' statements of undisputed material facts submitted in accordance with Local Rule 56.1.

The Fund is an employee welfare benefit plan (the "Plan") governed by ERISA. (Dkt. 48, ¶ 4.) The Plan provides medical benefits to eligible participants and beneficiaries. ( Id. ) Jacquez was a participant in the plan during all relevant times; and his minor son, Peter, was also a beneficiary under the Plan. ( Id. at ¶ 5.) The Plan gave full discretionary authority to the Trustees to determine eligibility for benefits, to interpret the Plan, and to interpret all documents, rules, procedures, and terms of the Plan. ( Id. at ¶ 9.) The Plan states that all expenses must be medically necessary in order to be eligible for coverage and defines medically necessary as:

Services, treatments or supplies ordered by your Physician that are: Required to identify or treat an injury or illness; Appropriate and consistent with the symptoms, diagnosis or treatment of the condition, disease, illness or injury; in keeping with acceptable National Standards of Good Medical Practice; and the most appropriate that can be safely provided to you under the circumstances on a cost effective basis.

( Id. at ¶¶ 6-7.) The Plan specifically excludes coverage for expenses for Maintenance or Developmental Care, which is more fully set out below. ( Id. at ¶ 8.)

Peter Jacquez ("Peter") was born in 2007 and has been diagnosed with cerebral palsy and spastic quadriplegia. ( Id. at ¶ 10.) Peter began receiving physical therapy at Rehabilitation Institute of Chicago on June 2, 2011. ( Id. at ¶ 11.) The notes from that visit indicate that he did not have age-appropriate functional level of activities of daily living, mobility, instrumental level, and cognitive-communication skills. ( Id. ) The physical therapist found that Peter would benefit from physical therapy 1-2 times a week to improve function. The therapist noted that Peter reported no pain. ( Id. ) On June 16, 2011, the physical therapy notes indicated that the chief complaint was decreased strength and balance which was limiting independent ambulation. ( Id. at ¶ 12.) The therapist noted that physical therapy was needed to increase strength and balance to increase Peter's independence with functional mobile skills and age appropriate activity. ( Id. at ¶ 12.) Again, no pain was reported. ( Id. at ¶ 12.) Peter continued physical therapy treatment 1-2 times a week through July 19, 2011. ( Id. ) On each of the physical therapy visits, no pain was recorded; the impairments/limitations were listed as ambulation, balance, bed mobility and coordination/proprioception deficits; and the stated goals were related to transitional movements, independent ambulation and increasing functional mobility. ( Id. at ¶13.)

On September 21, 2011, the Fund notified Plaintiff that Peter's physical therapy was not covered under the Plan. ( Id. at ¶ 14.) The Fund stated that physical therapy and occupational therapy were covered when "previously fully developed skills were lost or impaired due to injury or illness." ( Id. ) The Fund further explained that "[d]evelopmental care provided to a patient who has not previously reached the level of development expected for the person's age is not covered under the Plan." ( Id. ) Plaintiff appealed the Fund's denial on March 27, 2012, and asserted that physical therapy was necessary to maintain Peter's progress. ( Id. at ¶ 15.) Plaintiff included a letter from Dr. Luciano Dias from the Rehabilitation Institute of Chicago. ( Id. at ¶ 16.) The letter stated that Peter was to have surgery on April 5, 2012, to treat bilateral hop subluxation, and recommended intensive rehabilitation. ( Id. ) Dias also recommended that Peter be involved in a physical therapy program, including physical, occupational, and speech therapy. ( Id. ) The goal of physical therapy was "supported standing with continued intervention." ( Id. ) The goals of occupational therapy included core/scapular strengthening, increased sitting/balance tolerance, and functional positioning for use of upper extremities in play, self-feeding, and other activities with the use of bilateral hand and wrist splints. ( Id. ) The goals of speech therapy were comprehension and expression; and it was noted that Peter had shown improvement in responding to verbal prompts, expressing himself in 3-4 word utterances, and learning breath control. ( Id. )

The Trustees of the Fund's Claim Committee (the "Claim Committee") reviewed Plaintiff's appeal at its meeting on May 3, 2012. ( Id. at ¶17.) The Claim Committee referred the file out for an independent medical opinion. ( Id. ) Dr. Daniel Rosenberg, who is board certified in physical medicine, rehabilitation, and pain management, reviewed Peter's file on May 23, 2012. ( Id. at ¶ 18.) Rosenberg's report stated:

[The therapy] does appear to be Rehabilitative in nature, however, this apparently is excluded from the Welfare Plan, Number 22 B which notes excluded is not rehabilitative in nature (restoring fully developed skills that were lost due to injury or illness). This patient, at this age, has no fully developed skills. However, the prematurity and brain bleed with subsequent development of spastic quadriplegia does appear to fall under wither injury or illness. However, in reviewing the records provided for my review it does not appear to be covered from the description on Page 26, Chicago Laborers' Welfare Plan. The treatment provided to this patient appears reasonable and medically indicated although with records provided for my review with a reasonable degree of medical certainty it does not appear to be covered under the specific plan at this juncture.

See (Dkt. 42, ¶ 27.) Rosenberg found that the physical and occupational therapy treatment was excluded under the Plan's exclusion for Maintenance or Developmental Care. (Dkt. 48, ¶ 18.) He stated with a reasonable degree of medical certainty that the physical and occupational therapy was not covered under the Plan. ( Id. ) Rosenberg stated that physical therapy would be covered for an acute injury or surgical procedures but otherwise is not covered for developmental care. ( Id. ) Rosenberg also explained that, since Peter did not have fully developed skills, the therapy was not rehabilitative in nature. ( Id. ) The Claim Committee reviewed Dr. Rosenberg's report and decided to uphold the benefit denial on July 7, 2012. ( Id. at ¶ 19.) The Fund notified ...


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