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Jenkinson v. Highmark West Virginia, Inc.

United States District Court, N.D. West Virginia, Martinsburg

June 3, 2019

MARK JENKINSON, Plaintiff,
v.
HIGHMARK WEST VIRGINIA, INC. Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S REQUEST FOR A PRELIMINARY INJUNCTION

          GINA M. GROH CHIEF UNITED STATES DISTRICT JUDGE.

         On May 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.

         I. Background

         This 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.

         Highmark 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 (“the Plan”).

         Mr. 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 cord injuries.

         Prior 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.

         In a 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 months.

         In a 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.

         In a 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.

         Finally, 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.

         Highmark 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.

         Highmark's 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.

         On May 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.

         Thereafter, 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.

         II. Applicable Legal Standards

         “A 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).

         If the 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.

         III. Findings of Fact and Conclusions of Law

         Here, 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.

         A. Mr. Jenkinson is likely to succeed on the merits of his claim.

         Mr. 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)).

         ERISA “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. ...


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