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Dunn v. Office of Personnel Management

April 9, 2007


The opinion of the court was delivered by: James M. Moody United States District Judge


Plaintiff, Donna Dunn, seeks judicial review pursuant to the Federal Employees Health Benefits Act ("FEHBA"), 5 U.S.C. § 8901, et seq. of the decision by the defendant Office of Personnel Management ("OPM") denying plaintiff reimbursement for a medical procedure. Pending is plaintiff's motion for judgment on the record. The defendant has responded. For the reasons set forth below, the Court finds for the plaintiff.

1. Factual Background

Plaintiff is a member of the insurance plan provided by the National Association of Letter Carriers ("NALC"). The NALC is an employee organization as defined and governed by 5 U.S.C. § 8901(8). NALC provides health insurance to federal employees and their families. OPM is a federal agency and one of its duties is the administration of the Federal Employees Health Benefits Act ("FEHBA").

Plaintiff suffers from obesity. Plaintiff tried numerous treatments and diets in an attempt to reduce her weight. Some of the treatments resulted in short term weight loss but ultimately failed, oftentimes with plaintiff gaining more weight than she lost. As a result of being overweight, plaintiff suffers from high blood pressure, hypertension, orthopedic problems and hypercholesterolemia. Plaintiff consulted with Dr. Jaime Ponce, a bariatric surgeon, at the Hamilton Medical Center in Dalton, Georgia. Dr. Ponce found plaintiff to be 5' 8 1/2 " tall, weighing 241 pounds, with a Body Mass Index ("BMI") of 36.1 and suffering from comorbidities of hypertension, severe arthropathy and gastroesophageal reflux. Plaintiff was taking medications for these conditions and there is a familial history of comorbid conditions.

Ponce also noted that plaintiff had been in this condition for more than five years and had tried to lose weight under physician-supervised weight programs for several years without success. Based on these findings, Ponce decided plaintiff was morbidly obese and, therefore, an appropriate candidate for a LAP-BAND procedure. Dr. Ponce submitted a request for preauthorization to the NALC Health Benefit Plan ("Plan") on plaintiff's behalf. (R at 3-6.)

On March 21, 2003, the Plan denied the request and stated plaintiff did not meet the criteria for the LAP-BAND procedure as described on page 34 of the plan brochure. The Plan states as follows:

......for treatment of morbid obesity-a condition in which an individual weighs 100 pounds or 100% over his or her normal weight with complicating medical conditions and attempts to reduce weight using a doctor-monitored diet and exercise program were unsuccessful; Patient must be 18 or older. (R. at 469).

On March 26, 2003, plaintiff appealed the Plan's denial. Plaintiff asserted that the National Institute of Health (NIH) and the American Medical Association (AMA) criteria for obesity management is a BMI of 35 or greater with co-morbidities. Plaintiff provided a letter from her gynecologist, Dr. Holly Cockrum, asking that the Plan reconsider it's decision because plaintiff met the NIH and AMA criteria. (R. at 8.) Plaintiff also provided FDA pre-market approval of the LAP-BAND, medical records and professional articles about the procedure. (R. at 14-53.) On April 2, the Plan again denied pre-authorization for the procedure for a different reason, stating that it was "investigational/experimental and/or not considered to be clinically effective."

On April 16, 2003, plaintiff responded with an appeal letter to the NALC Plan providing proof again that the procedure was FDA approved and not experimental or investigational. Plaintiff relayed her plans to proceed with the surgery on April 30, 2003, and seek reimbursement from the Plan.

On May 8, 2003, the Plan explained why they denied plaintiff's request for reconsideration. The Plan stated that the LAP-BAND procedure had been approved by the FDA, but "remains investigational/experimental", and that:

In addition, the patient did not meet the criteria listed on page 34 of the brochure. Documentation submitted state her BMI as 36.1. The BMI calculator for the American Society of Bariatric Surgery gives a BMI of 34.97. Neither indicates morbid obesity. Neither Dr. Ponce from Surgical Weight Management at Hamilton Medical Center or Dr. Cockrum, the referring physician, indicate the patient is 100 lbs. Or 100% overweight. Also, please note our March 21, 2003 denial stating that the patient did not meet the criteria was not challenged or questioned by Dr. Ponce. We were also notified in a telephone call to Angie at Weight Management office (ph#706-272-6668) on March 18, 2003, that Donna Dunn's ideal weight is 200 lbs. (R. at 261-263.)

On May 15, 2003, OPM notified plaintiff that OPM's independent medical consultant, Dr. Harry Sax, needed additional medical information in order to evaluate plaintiff's claim. The physician requested the following: history, physical, other medical records from her primary care physician for the period from November 1, 2002 to April 30, 2003; similar records from specialists; and documents relative to physician-monitored diet and exercise programs. (R. at 513-514.)

On June 4, 2003, plaintiff responded to this request by supplying the additional medical records requested by Dr. Sax. Included was a two-year old letter from a Dr. Beland that said the plaintiff was "moderately overweight" and weighed 224 lbs. Also included were records from the University of Arkansas For Medical Sciences Medical Center Weight Control Program where the plaintiff responded that she would be comfortable in maintaining a weight of 195-200 lbs.

(R. at 80.) Finally, the court notes that included in the records for the time period requested by OPM is a report from Dr. Gerald Silvoso of the Little Rock Diagnostic Clinic that lists plaintiff's weight November 14, 2002, at 247 lbs. (R. at 104-105.)

On June 13, 2003, OPM requested that its medical consultant review plaintiff's claim to determine 1) if she met the criteria in the Plan Brochure for obesity surgery; 2) whether the LAP-BAND procedure is consistent with the standards of good medical practice in the United States; and, ...

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