United States District Court, E.D. Tennessee
DONALD K. TURNER, Plaintiff,
ALCOA, INC., and HIGHMARK INC., d/b/a, HIGHMARK BLUE CROSS BLUE SHIELD, Defendants.
A. Varlan CHIEF UNITED STATES DISTRICT JUDGE
Employee Retirement Income Security Act (“ERISA”)
case is before the Court on the Report and Recommendation
(“R&R”) issued by United Magistrate Judge H.
Bruce Guyton [Doc. 23]. In the R&R, Judge Guyton
recommends that plaintiff's Motion for Judgment on the
Record [Doc. 12] be denied, and that defendants' Joint
Motion for Judgment on the Administrative Record [Doc. 14] be
granted. Plaintiff filed an objection to the R&R [Doc.
25], and defendants replied [Doc. 27]. Defendants also filed
a contingent objection [Doc. 26].
Standard of Review
must conduct a de novo review of those portions of a
magistrate judge's report and recommendation to which a
party objects unless the objections are frivolous,
conclusive, or general. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b)(3); Smith v. Detroit
Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373
(6th Cir. 1987); Mira v. Marshall, 806 F.2d 636, 637
(6th Cir. 1986). “Objections disputing the correctness
of the magistrate's recommendation, but failing to
specify the findings believed to be in error are too general
and therefore insufficient.” Stamtec, Inc. v.
Anson, 296 F. App'x 516, 519 (6th Cir. 2008) (citing
Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir.
2006)). The Court “may accept, reject, or modify, in
whole or in part, the findings or recommendations” made
by the magistrate judge. 28 U.S.C. § 636(b)(1).
case arises due to defendants' decision to deny insurance
coverage for plaintiff's proton beam therapy, which
plaintiff sought in order to treat his prostate cancer. In
denying coverage, defendants determined that the use of
proton beam therapy to treat prostate cancer constituted an
“experimental/investigational” treatment under
the terms of the insurance plan, and thus, the costs
associated with that treatment were not covered [Doc. 23 p.
4]. In the R&R, Judge Guyton found that defendants'
determination was not arbitrary and capricious, and thus,
should be upheld [Id. at 12]. In his objection,
plaintiff argues that Judge Guyton's determination was
incorrect because: (1) Judge Guyton failed to consider that
Medicare and other insurance providers cover proton therapy
when used to treat prostate cancer; (2) Judge Guyton ignored
the fact that the physicians upon whose opinions defendants
based their conclusion were handpicked by defendants; and (3)
one of the reasons defendants denied coverage was that
plaintiff had not attempted other methods to treat his
prostate cancer [Doc. 25]. The Court will address each of
these arguments in turn.
How Other Plans Treat Proton Beam Therapy
R&R, when determining that defendants' decision to
deny coverage was not arbitrary and capricious, Judge Guyton
declined to consider how any other insurance providers treat
proton beam therapy in the context of their own plans [Doc.
23 p. 18]. Plaintiff argues in his objection that Judge
Guyton erred in declining to do so, contending that the
manner in which policy terms are interpreted industry-wide is
evidence of how defendants should have interpreted the terms
at issue in this case. In support of this argument, plaintiff
cites to caselaw indicating that a Court may consider
“known customs or usages in a particular industry to
determine the meaning of an [insurance] contract” [Doc.
25 p. 3 (citing M&G Polymers USA, LLC v.
Tackett, 135 S.Ct. 926, 935 (2015))]. Plaintiff asserts,
therefore, that because a number of other insurers do not
consider proton beam therapy experimental/investigative when
used to treat prostate cancer, defendants' determining
that it is such was arbitrary and capricious.
argument is, however, doubly flawed. Firstly, while plaintiff
contends that Medicare and other plans do not consider proton
beam therapy experimental or investigational when used to
treat prostate cancer, plaintiff has not provided the Court
with any comparative analysis between the language of these
plans and the language in the plan at issue in this case.
Such information is of critical importance, as differences in
how plans define experimental/investigational could lessen or
eliminate any probative value in comparing different
plans' treatment of proton beam therapy. See
Firestone Tire & Rubber Co. v. Brunch, 489 U.S. 101,
115 (1989) (“The validity of a claim to benefits under
an ERISA plan is likely to turn on the interpretation of
terms in the plan at issue.”) (emphasis
and more significantly, plaintiff's argument ignores the
fact that some plans that have confronted this issue have
determined that proton beam therapy is
experimental/investigational when used to treat prostate
cancer. Even taking as true plaintiff's contention that
Medicare and other plans provide coverage for proton beam
therapy, there does not appear to be a consensus among
insurers, as several district courts have upheld a plan's
decision to deny coverage under similar circumstances.
example, in Dillon v. Timken Co, the United States
District Court for the Western District of Pennsylvania
upheld a plan's refusal to cover the use of proton beam
therapy to treat prostate cancer. No. 11-195, 2013 WL
4508975, at *2 (W.D. Penn. Aug. 26, 2013). In denying
coverage, the plan administrator had found that the requested
treatment was experimental/investigational under the terms of
the plan at issue. Id. Similarly, in Garner v.
Grp. Health Plan, the United States District Court for
the Eastern District of North Carolina found that a plan
administrator did not abuse its discretion when it refused
coverage for the use of proton beam therapy to treat prostate
cancer, noting that “no reasonable jury could find that
[the plan administrator] abused its discretion in denying
coverage for [proton beam therapy] as experimental.”
No. 05-cv-00152, 2011 WL 1321403, at *5 (E.D. N.C. Apr. 4,
several district courts faced with a situation similar to
that facing the Court in this case upheld a plan
administrator's determination that proton beam therapy is
experimental/investigative when used to treat prostate
cancer. This caselaw is especially significant in light of
the Sixth Circuit decision Peruzzi v. Summa Med.
Plan, 137 F.3d 431 (6th Cir. 1998). In Peruzzi,
the Sixth Circuit, while considering a plan
administrator's determination that a certain treatment
was experimental, indicated “[t]hat courts were still
upholding the denial of coverage for the procedure as
experimental at the time [the defendant] made its
determination supports the conclusion that the decision was
not arbitrary and capricious.” See Id. at 435.
Peruzzi to this case, the Court finds that the fact
that district courts were still upholding denials of coverage
for proton beam therapy to treat prostate cancer as
experimental/investigative close in time to when defendants
decided to deny coverage “supports the conclusion that
the decision was not arbitrary and capricious.”
Id. Indeed, the Dillon decision upholding
such a denial was decided fewer than ten months prior to
defendants' initial denial of coverage in this
case. Therefore, consideration of how other
plans have treated proton beam therapy, with a particular
emphasis on the accompanying caselaw, supports rather than
undercuts Judge Guyton's finding that defendants'
decision was not arbitrary and capricious.
the Court does not find that the R&R's conclusion is
undermined by the fact that many insurance providers,
including Medicare, provide coverage for proton beam therapy
when used to treat prostate cancer. ...