IN THE UNITED STATES DISTRICT COURT FOR THE 

MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

OWEN J. ROGAL, D.D.S., P.C., 

 Plaintiff, 

v. 

SKILSTAF, INC., 

 Defendant. 

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CIVIL ACTION NO. 

3:06-cv-00728-MHT

DEFENDANT’S AMENDED COUNTERCLAIM

COMES NOW Skilstaf, Inc. (“Skilstaf” or “Defendant”), the 

defendant in the above-styled cause, and files this Amended Counterclaim to 

add counterclaims based on Skilstaf’s right to recover under the Skilstaf 

Group Health Plan (the “Plan”) and on unjust enrichment as follows: 

FACTS

1. Skilstaf, an Alabama corporation, is an employee leasing 

company that provides its clients with employee benefits and human 

resources services including, but not limited to, health care benefits. 

2. As an employee leasing company, it enters into co-employment 

agreements with its clients, under which the client leases its employees to 

Skilstaf and Skilstaf simultaneously assigns the employees back to the client. 

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Although Skilstaf’s clients retain direct control and supervision of their 

employees, Skilstaf becomes the co-employer of its clients’ employees for 

specified purposes such as payroll, benefits, and workers’ compensation. 

3. Newspaper Processing, Inc. is one of Skilstaf’s clients. 

Specifically, Skilstaf provides group health coverage under the Plan to 

Newspaper Processing, Inc. employees and their spouses. 

4. Skilstaf is the sponsor of the Plan; Risk Reduction, Inc. (“RRI”) 

is the Plan Administrator. 

5. Dennis Berry, Dianna Berry’s husband, is an employee of 

Newspaper Processing, Inc., and, during the time relevant to the Complaint, 

was a participant in the Plan. 

6. Skilstaf provided group health coverage under the Plan to 

Dennis Berry, and to Dennis’ wife Dianna, during the time relevant to the 

Complaint. 

7. Plaintiff Owen J. Rogal, D.D.S., P.C., d/b/a The Pain Center 

(“The Pain Center” or “Plaintiff”) is, upon information and belief, a 

Pennsylvania corporation with its principal place of business in Philadelphia, 

Pennsylvania. (Pl.’s Compl. ¶ 1). 

8. Upon information and belief, Plaintiff is in the business of 

treating its patients’ chronic pain through a non-invasive radio frequency 

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procedure whereby Plaintiff’s employees place pinpointed heat directly into 

their patients’ injured muscles. 

9. Beginning on or about January 14, 2005, Dianna Berry sought 

radio frequency treatment from Plaintiff. Despite the fact that Dianna 

Berry’s alleged condition never improved over the course of said radio 

frequency treatments, Plaintiff “treated” Dianna Berry on several occasions 

including, but not limited to, the following: (1) January 21, 2005; (2) 

January 28, 2005; (3) February 4, 2005; (4) February 11, 2005; (5) February 

18, 2005; (6) February 25, 2005; (7) March 4, 2005; (8) March 18, 2005; (9) 

March 25, 2005; (10) April 1, 2005; (11) April 8, 2005; (12) April 15, 2005; 

(13) April 22, 2005; (14) April 29, 2005; (15) May 6, 2005; (16) May 13, 

2005; (17) May 20, 2005; (18) May 23, 2005; (19) May 25, 2005; (20) May 

26, 2005; (21) May 27, 2005; (22) June 1, 2005; (23) June 3, 2005; and (24) 

June 7, 2005. (See Ex. A to Pl.’s Compl.). 

10. In connection with its alleged treatment of Dianna Berry, 

Plaintiff submitted medical bills to Skilstaf totaling $189,900.00. (See Ex. A 

to Pl.’s Compl.). On the claims it submitted to Skilstaf, Plaintiff improperly 

coded its radio frequency treatments. As a result of Plaintiff’s improper 

coding, Skilstaf was caused to misunderstand the nature of Plaintiff’s 

treatment of Dianna Berry. 

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11. Because Plaintiff’s claims were improperly coded and/or 

because Plaintiff made a mistake as to the nature of Plaintiff’s treatment of 

Dianna Berry, Skilstaf paid $71,911.53 to Plaintiff that it was not required to 

pay under the terms of the Plan. 

COUNTERCLAIMS

COUNTERCLAIM I 

DEFENDANT’S RIGHT TO RECOVERY UNDER THE PLAN 

12. Skilstaf realleges every paragraph above. 

13. The Plan’s Summary Plan Description (“SPD”) provides, in 

pertinent part: 

When payments of medical and/or dental benefits have been 

made in error or have exceeded the amount of such benefits that 

are required to be paid by the plan under the foregoing 

provisions of this SECTION 11, this plan shall have the right to 

recover such payments, to the extent of such error or excess, 

from one or more of the following, as the plan shall determine: 

(a) Any persons to or for or with respect to whom 

such payments were made; and 

(b) Any other insurance companies or any other 

organizations providing benefits or services under 

any other plan(s) 

14. As described in Paragraphs 9-11, Skilstaf was caused to 

misunderstand the nature of Plaintiff’s treatment of Dianna Berry and was, 

therefore, mistakenly and/or wrongfully caused to pay Plaintiff $71,911.53 

that it was not required to pay under the terms of the Plan. 

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15. Under the SPD’s express terms, Skilstaf has the right to recover 

the money it mistakenly and/or wrongfully was caused to pay Plaintiff. 

WHEREFORE, premises considered, Defendant requests judgment in 

its favor of $71,911.53, including fees and costs. Further, Skilstaf seeks any 

other relief to which it is entitled. 

COUNTERCLAIM II 

UNJUST ENRICHMENT

16. Skilstaf realleges every paragraph above. 

17. Because Skilstaf was mistaken as to the nature of Plaintiff’s 

treatment of Dianna Berry and/or because Plaintiff misrepresented the nature 

of said treatment, Skilstaf was mistakenly and/or wrongfully caused to pay 

Plaintiff $71,911.53 that it was not required to pay under the terms of the 

Plan. 

18. Accordingly, Plaintiff now holds money and property that 

belong to Skilstaf and that was improperly transferred to Plaintiff because of 

mistake and/or fraud. 

19. Plaintiff, with knowledge of the benefit bestowed on it, has 

wrongfully retained the benefit. 

20. Plaintiff has been unjustly enriched at Skilstaf’s expense. 

WHEREFORE, premises considered, Skilstaf requests the Court to 

order Plaintiff to make restitution to Skilstaf and/or to impose a constructive 

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trust on any money or property that Plaintiff possesses through its 

misconduct. Further, Skilstaf seeks any other relief to which it is entitled. 

Respectfully Submitted, 

 s/Charles A. Stewart III 

Charles A. Stewart III (STE067) 

Bradley Arant Rose & White LLP

The Alabama Center for Commerce 

401 Adams Avenue, Suite 780 

Montgomery, AL 36104 

Telephone: (334) 956-7700 

Facsimile: (334) 956-7701 

cstewart@bradleyarant.com

 s/Amelia T. Driscoll 

Amelia T. Driscoll (DRI016) 

Bradley Arant Rose & White LLP

1819 Fifth Avenue North 

Birmingham, AL 35203-2104 

Telephone: (205) 521-8000 

Facsimile: (205) 521-8800 

adriscoll@bradleyarant.com

Attorneys for Defendant 

Skilstaf, Inc. 

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CERTIFICATE OF SERVICE

I hereby certify that on October 17, 2006, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system, which will 

send notification of such filing to the following: 

Robert E. Cole 

437 Chestnut Street, Suite 218 

Philadelphia, PA 19109 

Beth A. Friel 

Jeanne L. Bakker 

Mongtomery, McCracken, Walker & Rhoads 

123 South Broad Street 

Philadelphia, PA 19109 

and I hereby certify that I have mailed by U. S. Postal Service the document 

to the following non-CM/ECF participants: None. 

/s/ Amelia T. Driscoll 

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