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Coker v. United States

United States District Court, W.D. Kentucky, Louisville Division

December 14, 2016

JASON ALLEN COKER PLAINTIFF
v.
UNITED STATES OF AMERICA DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Joseph H. McKinley, Jr., Chief Judge.

         This matter is before the Court on a motion by Defendant, United States of America, for summary judgment pursuant to Fed.R.Civ.P. 56 [DN 53]. Fully briefed, this matter is ripe for decision.

         I. BACKGROUND

         This action arises from the denial of benefits under the Traumatic Servicemembers' Group Life Insurance Program (“TSGLI”) by the United States Army Board for Correction of Military Records (“ABCMR” or “Board”). Plaintiff is a former member of the United States Army who suffered a left shoulder injury while serving on active duty after falling from a military vehicle and landing on his outstretched left arm. Plaintiff filed a claim for benefits under the TSGLI on September 6, 2011. The Army denied Plaintiff's claim for benefits on the basis that Plaintiff was unable to provide sufficient medical documentation to support his claim for loss of ability to independently perform two or more activities of daily life (“ADL”) for at least 30 consecutive days. After several administrative appeals and a final denial, Plaintiff filed suit against the United States on October 21, 2014. The United States now moves for summary judgment.

         II. STANDARD OF REVIEW

         Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying that portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         III. DISCUSSION

         A. Benefit Application and Appeals

         On February 24, 2006, Plaintiff suffered a Grade III acromioclavicular separation injury to his left shoulder when he fell off a moving Humvee in Iraq while on active duty. From February 27, 2006 until March 1, 2006, Plaintiff was treated at Landstuhl Regional Medical Center in Germany. Medical notes indicated that Plaintiff had severe pain in his left shoulder and an inability move his left arm without pain; he had swelling in his shoulder, tenderness on palpation of the AC joint, and abnormal motion of the shoulder. Plaintiff had an x-ray of the shoulder and was diagnosed with the acromioclavicular separation injury.

         On March 5, 2006, Plaintiffs was transferred back to Fort Campbell, Kentucky. Plaintiff was treated at Blanchfield Army Community Hospital at Fort Campbell, Kentucky, on an outpatient basis. Plaintiff was first seen in the orthopedic clinic at Blanchfield Army Community Hospital on March 7, 2006. Plaintiff reported moderate shoulder pain. Plaintiff's shoulder range of motion was limited with passive range of motion listed as 90 degrees flexional/abductional. Plaintiff's orthopedist, Dr. Clark Searle, referred him to physical therapy to work on range of motion and pain control. (AR 291.) On March 13, 2006 (17 days after injury), Plaintiff was first evaluated for physical therapy. During this visit, Plaintiff's pain was 4/10 on the pain scale, and “he was able to lift his [left] arm over his head to remove his shirt.” (AR 288.) When doing active range of motion function, Plaintiff had pain with all motion seated but able to get 120 degrees flexion and 90 degrees abduction. (AR 288.)[1] From March 14, 2006 to April 14, 2006 (18-49 days after injury), Plaintiff attended physical therapy two to three times a week. During these visits, Plaintiff reported his pain was 4/10 to 7/10 on the pain scale. Plaintiff conducted exercises such as low rows, pulleys, and NRG ball press outs. On April 5, 2006 (41 days after injury), Plaintiff was “able to cross over and touch other shoulder but if lifts elbow then pain is reproduced.” (AR 271.)

         On April 16, 2006, Plaintiff was seen in the emergency room, reporting that he had fallen down the stairs. An x-ray showed “no fracture.” (AR 255.) On April 18, 2006, Plaintiff was seen in the deployment health clinic indicating an exacerbation of pain to his left thoracic chest following a cough. Physician assistant noted that his rib pain is separate from his shoulder pain. (AR 253.) On April 20, 2006, Plaintiff saw Dr. Searle who noted that Plaintiff had fallen down stairs six days ago and broke a rib and aggravated his shoulder. (AR 244.) Between April 20, 2006 and May 20, 2006, Plaintiff continued physical therapy. During this period, Plaintiff rated his pain as between 0/10 to 6/10 on the pain scale. On May 18, 2006, Plaintiff was seen in the orthopedic clinic. Plaintiff had an active range of motion of 0 to 90 degrees flexional and abductional, passive range of motion of 0 to 140 degrees flexional and abductional, and 70 degrees external rotation. Dr. Kurtis Kowalski indicated that Plaintiff might benefit from a Mumford procedure. (AR 220.)

         On June 19, 2006, Plaintiff underwent an open distal clavicle excision surgery. (AR 56-57.) Plaintiff received physical therapy after the surgery, and on July 7, 2006, Plaintiff was seen in the orthopedic clinic. He reported pain at 3/10 on the pain scale, and Plaintiff's forward flexion/abduction active range of motion was listed as 0 to120 degrees. (AR 200.) Between July 10, 2006 and September 15, 2006, Plaintiff underwent physical therapy two to three times per week. During this time period, Plaintiff reported his pain between 2/10 and 5/10 on the pain scale. On August 24, 2006, Plaintiff was seen in the orthopedic clinic where he reported that his pain was improving but he “was lifting over the weekend and felt a pop and [his] shoulder [is] now very painful.” (AR 174.)

         On September 15, 2006, Plaintiff was seen in the orthopedic clinic for a pre-operation evaluation. The surgeon noted Plaintiff's shoulder pain was 0/10 and his active range of motion was 0 to 100 degrees flexion/abduction. (AR 164.) On September 18, 2006, Plaintiff underwent an arthroscopic subacromial decompression/revision and distal clavicle excision surgery on his left shoulder. (AR 686-87; AR 159).

         Plaintiff submitted his application for TSGLI benefits on September 6, 2011. The claim was denied by letter dated September 26, 2011. Plaintiff tendered a claim for reconsideration, and it was denied by letter dated February 7, 2012. (AR 47.) With assistance of counsel, Plaintiff submitted a third application (an appeal) for TSGLI benefits on June 26, 2012. (AR 38.) Plaintiff claims that his injuries prevented him from being able to independently perform his activities of daily living (ADLs) of dressing (specifically putting on his shirt, pants, belt, socks, and shoes) and of bathing between February 24, 2006 and September 23, 2006. Defendant states that during this time-period, he relied on his significant other for physical and stand-by assistance with those activities. At Part B of the application, entitled Medical Professional's Statement, Dr. David McCoy, Plaintiff's family physician, indicated that Plaintiff had ongoing inabilities to bathe independently and dress independently beginning on February 24, 2006, and ending on September 23, 2006, all of which requiring hands-on and stand-by assistance. (AR 41-42.) Dr. McCoy certified that he had not observed Plaintiff's loss, but had reviewed the patient's medical records. (AR 43.) This ...


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