United States District Court, N.D. West Virginia, Martinsburg
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S
REQUEST FOR A PRELIMINARY INJUNCTION
M. GROH CHIEF UNITED STATES DISTRICT JUDGE.
30, 2019, the parties in the above-styled civil action
appeared before the Court for a hearing on the
Plaintiff's request for a preliminary injunction. ECF No.
1 at 8. Lawrence M. Schultz appeared on behalf of the
Plaintiff, Mark Jenkinson. Mr. Jenkinson was also present via
telephone. Jill E. Hall appeared on behalf of the Defendant,
Highmark West Virginia, Inc., doing business as Highmark Blue
Cross Blue Shield West Virginia (“Highmark”).
After reviewing the parties' filings, considering the
evidence presented and carefully analyzing the controlling
law, the Court GRANTS the request for a
preliminary injunction for the reasons provided herein.
civil action arises from Highmark's decision that Mr.
Jenkinson's continued stay at Magee Rehabilitation
Hospital is not medically necessary, and therefore, not
covered under Mr. Jenkinson's health insurance plan. The
background of the dispute is as follows.
operates as an employer sponsored health insurance plan which
is governed under the terms of the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C. §
1001 et seq. Mr. Jenkinson is a plan participant in an
employee health insurance plan that is insured by Highmark
Jenkinson is a paraplegic who suffered a spinal cord injury
approximately three decades ago. Recently he injured his left
shoulder. On April 9, 2019, Mr. Jenkinson underwent rotator
cuff surgery to repair his shoulder. The surgery rendered him
unable to care for himself and triggered the need to be
placed in a rehabilitation center that specializes in spinal
to the surgery, Mr. Jenkinson sought Highmark's approval
for admission to Magee Rehabilitation Hospital in
Philadelphia, Pennsylvania (“Magee”). Magee
specializes in the care, treatment and rehabilitation of
individuals with spinal cord injuries. In support of his
request, Mr. Jenkinson submitted four letters from physicians
who recommended his direct admission to Magee.
letter dated February 27, 2019, Dr. Joseph Abboud, Mr.
Jenkinson's orthopedic surgeon who performed the surgery
in Philadelphia, opined Mr. Jenkinson needed to go
specifically to Magee post-surgery until he was able to do
transfers with the arm. Dr. Abboud informed Highmark, prior
to the surgery, the rehabilitation at Magee could last four
letter dated March 14, 2019, Dr. John A. Bruno opined Mr.
Jenkinson's surgery would require lengthy hospitalization
in a facility that regularly cares for spinal cord injuries
and paraplegics and strongly recommended Magee. Dr. Bruno
warned admission to a standard skilled nursing home would
place Mr. Jenkinson at high risk for many complications which
spinal cord injury patients face, such as bowel, bladder and
skin issues. Dr. Bruno also explained Mr. Jenkinson faces a
high risk of falling during rehabilitation since he is unable
to transfer himself between bed and wheelchair.
March 13, 2019 letter, Dr. Justin Glassford, Mr.
Jenkinson's primary physician, stated Mr. Jenkinson would
greatly benefit from post-surgical placement at Magee. Dr.
Glassford agreed with Dr. Bruno's concerns for health and
safety risks faced in a non-specialized nursing home. Dr.
Glassford stated, “it is my medical opinion that a
direct post-surgical placement at Magee Rehab Hospital for
the duration of his post-surgical rehabilitation is medically
necessary to reduce the risks of medical complications,
provide a safe environment and facilitate a better outcome
for him.” ECF No. 1-1 at 5-6.
in a letter dated March 21, 2019, Dr. Shoji Ishigami,
Assistant Professor at West Virginia University's
Department of Neurology, opined that it was absolutely vital
to restore Mr. Jenkinson's upper limbs function through
high level rehabilitation in an acute, not sub-acute,
rehabilitation facility such as Magee.
approved Mr. Jenkinson's request and he was admitted to
Magee on April 11, 2019. Highmark's approval was based on
a finding of medical necessity of the requested service. Mr.
Jenkinson's estimated recovery at Magee was expected to
be three to four months from the date of surgery.
authorization of Mr. Jenkinson's continued stay at Magee
was assessed on a week-to-week basis. After review by
Highmark personnel, Highmark authorized Mr. Jenkinson's
continued stay on April 11, April 17, April 24, May 1 and May
8, 2019. On May 15, 2019, right before Mr. Jenkinson was
scheduled to have his sling removed, Highmark verbally
informed Magee that Mr. Jenkinson no longer qualified for
coverage at Magee and needed to be removed to a nursing home.
Highmark reasoned Mr. Jenkinson's continued stay at Magee
was no longer medically necessary because Mr. Jenkinson's
“progress at Magee had plateaued, and he was no longer
expected to make progress at an acute in-patient
rehabilitation facility.” ECF No. 11 at 3-4.
16, 2019, Mr. Jenkinson appealed to Highmark. While awaiting
Highmark's decision, Mr. Jenkinson paid out-of-pocket for
his care at Magee. On May 22, 2019, Highmark notified Mr.
Jenkinson of its decision to uphold its denial. Dr. Formal,
the attending physician at Magee, contacted Highmark and
requested a peer to peer review to discuss Highmark's
decision. Mr. Jenkinson was ultimately transferred from Magee
to The Springs at Watermark (“Watermark”), a
nursing home in Philadelphia, Pennsylvania.
on May 24, 2019, Mr. Jenkinson filed the complaint in this
action seeking to recover benefits owed to him under the
terms of the Plan pursuant to 29 U.S.C. § 1132(a)(1)(B)
and injunctive relief to require his immediate return to
Magee under § 1132(a)(3). ECF No. 1. Within his
complaint, Mr. Jenkinson requested a preliminary injunction
ordering his return to Magee. The Court held a hearing to
address Mr. Jenkinson's request on May 30, 2019. The
Court heard evidence from both parties and reserved issuing a
decision until after further review.
Applicable Legal Standards
preliminary injunction is an extraordinary remedy never
awarded as of right.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008) (citing
Munaf, 553 U.S. 674, 689-90 (2008)).
“Mandatory preliminary injunctions . . . normally
should be granted only in those circumstances where the
exigencies of the situation demand such relief.”
Wetzel v. Edwards. 635 F.2d 283, 286 (4th Cir.
1980). To succeed on a motion for a preliminary injunction,
the plaintiff must make a “clear showing” that
“he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public
interest.” Winter, 555 U.S. at 20, 22.
“All four requirements must be satisfied.”
Real Truth About Obama, Inc. v. Fed. Elec.
Comm'n, 575 F.3d 342, 346 (4th Cir. 2009) (vacated
and remanded on other grounds).
court grants a motion for a preliminary injunction it must:
(1) state the reasons why the injunction was issued; (2)
state the injunction's terms specifically; and (3)
describe in reasonable detail the act or acts restrained or
required. Fed.R.Civ.P. 65(d)(1). Additionally, the court may
grant a preliminary injunction “only if the movant
gives security in an amount that the court considers proper
to pay the costs and damages sustained by any party found to
have been wrongfully enjoined or restrained.”
Fed.R.Civ.P. 65(c). In the Fourth Circuit, “this rule
is mandatory and unambiguous.” Hoechst Diafoil Co.
v. Nan Ya Plastics Corp., 174 F.3d 411, 421 (4th Cir.
1999). “Although the district court has discretion to
set bond amount in such sum as the court deems proper, it is
not free to disregard the bond requirement altogether.”
Id. “[F]ailure to require bond upon issuing
injunctive relief is reversible error.” Id.
Findings of Fact and Conclusions of Law
the Court finds that an injunction is warranted because Mr.
Jenkinson has made a clear showing that (1) he is likely to
succeed on the merits of his claim; (2) he is likely to
suffer irreparable harm in the absence of preliminary relief;
(3) the balance of equities tips in his favor; and (4) an
injunction is in the public interest.
Mr. Jenkinson is likely to succeed on the merits of his
Jenkinson seeks relief under 29 U.S.C. § 1132(a)(1)(B)
to recover his out-of-pocket expenses for his care at Magee
from May 16, 2019, to May 22, 2019, while he was awaiting a
decision on his internal appeal of Highmark's denial of
benefits. Mr. Jenkinson also seeks injunctive relief under
§ 1132(a)(3) to require his immediate return to Magee
for the remainder of his recovery. Highmark argues that Mr.
Jenkinson is not permitted to seek relief under §
1132(a)(3) because “Congress intended section
[1132(a)(3)] to be a ‘catchall' ERISA provision
that acts ‘as a safety net, offering appropriate
equitable relief for injuries caused by violations that
[§ 1332] does not elsewhere adequately remedy.”
ECF No. 11 at 9 (quoting Varity Corp. v. Howe, 516
U.S. 489, 512 (1996)).
“permits a person denied benefits under an employee
benefit plan to challenge that denial in federal
court.” Metropolitan Life Ins. Co. v. Glenn,
554 U.S. 105, 108 (2008). 29 U.S.C. ...