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Hewitt v. Western & Southern Financial Group Flexible Benefits Plan

United States District Court, E.D. Kentucky, Northern Division

May 1, 2017

ALLEN R. HEWITT, PLAINTIFF,
v.
WESTERN AND SOUTHERN FINANCIAL GROUP FLEXIBLY BENEFITS PLAN and THE WESTERN AND SOUTHERN LIFE INSURANCE CO., DEFENDANTS.

          MEMORANDUM OPINION AND ORDER

          Henry R. Withoit, Jr. United States District Judge

         This matter is before the Court upon Defendants' Motion to Dismiss [Docket No. 8] as well as Plaintiffs Motion for Summary Judgment [Docket No. 13]. The motions have been fully briefed by the parties [Docket Nos. 15, 18 and 19]. For the reasons set forth herein, the Court finds that the Complaint fails to state a claim upon which relief may be granted and this matter will, therefore, be dismissed.

         I.

         This is a civil action filed pursuant to the Employee Retirement Income Security Act ("ERISA") to recover benefits Plaintiff alleges he is owed from Defendants for a medical procedure.

         A.

         According to the Complaint, Plaintiff began his employment with Defendant The Western and Southern Life Insurance Company ("WSLIC") in November 2014. Shortly thereafter, he joined the Western and Southern Financial Group Flexible Benefits Plan ("Plan"), which provides certain benefits to its members, including medical coverage. The Plan is governed by ERISA and a copy of it is attached to Plaintiffs Complaint [Docket No. 1-6, 7, 8 and 9].

         With regard to medical coverage, and as it pertains to this case, the Plan provides reimbursement for medical expanses that are deemed necessary and appropriate, and are not experimental in nature. Further, the Plan prohibits a member from filing a lawsuit reflating to coverage more than six months following a denial of a claim for coverage. The Plan provides in pertinent part:

"[N]o action, including, but not limited to administrative, claim or suit relating to or arising out of the Plan may be commenced or maintained more than six months after the later of the employer's initial claim decision or the employer's decision on review."

(Id. at §14.13 (emphasis added).)

         B.

         In his Complaint Plaintiff alleges that prior to his employment with WSLIC, he was diagnosed with several medical conditions related to the second toe of his right foot: a fractured second metatarsal on his right foot, second Metatarsophalangeal Joint ("MPJ") capsulitis and Freiberg's Disease.

         On September 25, 2015, Plaintiff requested that the Plan provide coverage for a second MPJ arthroplasty surgery. Western Southern reviewed the request, including commissioning an outside expert, Dr. Allan Bernstein, DPM, to review Plaintiffs medical records and request. Dr. Bernstein opined that the surgery was not medically necessary but, rather, experimental.

         Via letter dated October 2, 2015, a representative from the Benefits Department of the Plan advised Plaintiff that his claim was denied. A copy of this letter is attached to the Complaint [Docket No. 1-3]. Defendants explained that "the surgery is considered to be experimental / investigative and not medically necessary, " Id. The request was also denied as medical records indicated that Mr. Hewitt's condition was "asymptomatic" and there was no documentation of "conservative treatment failure, " Id., In the denial letter, Defendants explained that Mr. Hewitt could appeal his decision within 180 days, and that "any action, claim or suit relating to, or ...


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