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-00711-MHT

DEFENDANT’S BRIEF IN SUPPORT OF

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Charles A. Stewart III 

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 

Amelia T. Driscoll

Bradley Arant Rose & White LLP

One Federal Place 

1819 Fifth Avenue North 

Birmingham, AL 35203-2104 

Telephone: (205) 521-8000 

Facsimile: (205) 521-8800 

Attorneys for Defendant 

Skilstaf, Inc. 

Case 3:06-cv-00711-MHT-WC Document 37 Filed 04/09/2007 Page 1 of 18
TABLE OF CONTENTS 

I. STATEMENT OF UNDISPUTED FACTS ........................................ 2

A. Introduction and Plan Provisions ............................................... 2

B. Plaintiff’s Claim for Coverage................................................... 5

II. THE JUDICIAL STANDARD OF REVIEW...................................... 8

III. RRI CORRECTLY DENIED PLAINTIFF’S CLAIM. ..................... 10

IV. PLAINTIFF DID NOT EXHAUST THE PLAN’S 

ADMINISTRATIVE REMEDIES..................................................... 12

V. CONCLUSION ................................................................................ 144

CERTIFICATE OF SERVICE ................................................................... 166

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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-00711-MHT

DEFENDANT’S BRIEF IN SUPPORT OF 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Defendant Skilstaf, Inc. (“Skilstaf” or “Defendant”) hereby submits 

this brief in support of its Motion for Summary Judgment. Defendant’s 

Motion for Summary Judgment should be granted and Plaintiff’s claims 

dismissed because: (1) Defendant correctly determined that the claims 

Plaintiff submitted in connection with its treatment of Dennis Berry’s workrelated injury were not covered under the terms of the Skilstaf Group Health 

Plan (the “Plan”); and (2) Plaintiff has failed to exhaust the Plan’s 

administrative remedies. 

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I. STATEMENT OF UNDISPUTED FACTS 

A. Introduction and Plan Provisions

1. Skilstaf is an employee leasing company that provides its 

clients with employee benefits and human resources services including, but 

not limited to, health care benefits. See Aff. of Kim Liner at ¶ 3, attached 

hereto as Exhibit 1 (“Liner’s Affidavit”).1

 

2. As an employee leasing company, Skilstaf enters into coemployment agreements with its clients under which the client leases its 

employees to Skilstaf and Skilstaf simultaneously assigns the employees 

back to the client. See id. 

3. 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. See id. at ¶ 4. 

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

Skilstaf provides group health coverage under the Plan to Newspaper 

Processing, Inc. employees. See id. at ¶ 5. 

 

1 The following documents are attached to the Affidavit of Robert Johnson (“Johnson’s 

Affidavit”) and are being filed under seal pursuant to the Court’s January 11, 2007, order: 

(1) Exhibit A – the Plan’s Summary Plan Description (“SPD”), which describes the 

health benefits available under the Plan to eligible employees, Skilstaf-00001 through 

Skilstaf-00085; and (2) Exhibit B – excerpts from the Administrative Record. For ease of 

reference, pages within each respective exhibit will be referred to in this brief by their 

bates-labeled page numbers only, such as “Skilstaf-00125.”

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5. Dennis Berry (“Mr. Berry”) is an employee of Newspaper 

Processing, Inc., and, during the time relevant to the Complaint, was a 

participant in the Plan. See id. at ¶ 6. 

6. Accordingly, during the time relevant to the Complaint, Skilstaf 

provided group health coverage under the Plan to Mr. Berry. See id. 

7. The Plan, which is an employee welfare benefits plan, is 

governed by the Employee Retirement Income Security Act of 1974, 29 

U.S.C § 1001 et seq. (“ERISA”). See Skilstaf-00003. 

8. Skilstaf is the sponsor of the Plan. Skilstaf-00060 

9. Risk Reduction, Inc. (“RRI”) is the Plan Administrator. 

Skilstaf-00060. 

10. The Plan vests full discretionary authority in RRI to interpret 

the Plan’s terms and provisions. Skilstaf-00058 (making clear that the “Plan 

Administrator has full discretion to interpret the Plan and to apply [the 

Plan’s] claim review procedures”), Skilstaf-00060 (defining RRI as the Plan 

Administrator). 

11. To claim policy benefits under the Plan, a claimant must submit 

a claim to RRI within 180 days of the date the service was provided. 

Skilstaf-00058. 

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12. To the extent RRI needs more information to process a 

claimant’s claim, the claimant must provide such information within 45 days 

of RRI’s request. Skilstaf-00058. 

13. A claimant’s “[f]ailure to respond and provide the information 

[requested by RRI] may result in denial of the claim.” Skilstaf-00058. 

14. In the event RRI denies a claim, the claimant may make a 

written request for a review of RRI’s denial decision. Skilstaf-00058. 

15. When reviewing its initial denial decision, RRI may request a 

claimant “to furnish, in connection with the review of the [initial] denial, 

information that [RRI] reasonably believes is important to the review.” 

Skilstaf-00058. 

16. Several types of medical benefits are not covered under the 

Plan. See Skilstaf-00039-Skilstaf-00042. 

17. As specifically relevant to the instant dispute, the Plan’s SPD 

makes clear that “[c]harges for injury or sickness occurring during or arising 

from [a claimant’s] performance of service in a covered business or industry 

under worker’s compensation or an occupational disease act or law” are not 

payable under the Plan. Skilstaf-00040. 

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B. Plaintiff’s Claim for Coverage

18. Mr. Berry was injured in a work-related accident on or about 

September 26, 2003. Skilstaf-00206 (noting that Mr. Berry suffered a 

“Back/Lower/Lumbar” injury on September 26, 2003, while lifting a 

conveyor at work). 

19. Beginning on or about August 6, 2004, Plaintiff began treating 

Mr. Berry’s work-related injury via radio frequency therapy.2

 See, e.g., 

Skilstaf-00211, Skilstaf-00352, Skilstaf-00369, Skilstaf-00386 (attaching 

representative examples of the operative reports that Plaintiff’s employees 

drafted in connection with their repeated treatments of Mr. Berry wherein 

Plaintiff’s employees made clear that their treatment of Dennis was in 

connection with an injury he sustained in “a work related accident on 9-26-

2003”); see also Ex. 3 at ¶ 5, attached hereto (verifying that Plaintiff’s 

treatment of Mr. Berry began on or about August 6, 2004). 

20. In connection with its alleged treatment of Mr. Berry, Plaintiff 

ultimately submitted medical bills to Defendant totaling $369,390.00. See

Ex. 3 at ¶ 6. 

 

2

 According to one website, Plaintiff is in the business of treating its patients’ chronic 

pain through a non-invasive radio frequency procedure whereby Plaintiff’s employees 

place pinpointed heat directly into their patients’ injured muscles. See Ex. 2, attached 

hereto.

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21. On April 19, 2005, RRI notified Plaintiff’s counsel that the 

claims Plaintiff had submitted in connection with its treatment of Mr. Berry 

were not covered under the terms of the Plan because “the bills in question 

[were] the result of an alleged work-related injury or [were] otherwise 

subject to workers’ compensation law.” Skilstaf-00101. 

22. At that time, RRI also requested that Plaintiff’s counsel submit 

any information in its possession that conflicted with RRI’s understanding 

“that the bills in question [were] the result of an alleged work-related injury. 

. . .” Skilstaf-00101. 

23. Despite RRI’s request for information, Plaintiff never submitted 

any documentation that conflicted with RRI’s understanding “that the bills 

in question [were] the result of an alleged work-related injury . . . .” See

Johnson’s Affidavit at ¶ 7. 

24. To the contrary, Plaintiff’s counsel submitted documentation on 

May 20, 2005, which confirmed RRI’s understanding that Plaintiff’s claim 

was a workers’ compensation claim. See Skilstaf-00196 (admitting that 

Plaintiff had already attempted, unsuccessfully, to get coverage for 

“payment of Mr. Berry’s medical bills relative to The Pain Center” from a 

workers’ compensation carrier); Skilstaf-00197 – Skilstaf-00203 (attaching 

Case 3:06-cv-00711-MHT-WC Document 37 Filed 04/09/2007 Page 8 of 18
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documents representative of the denial of Plaintiff’s claim by a workers’ 

compensation carrier). 

25. On June 10, 2005, RRI notified Plaintiff’s counsel that RRI’s: 

[R]eview of this matter, including the material you provided 

[with your May 20, 2005, correspondence], indicates that the 

claim is a workers’ compensation claim. In fact, the Pain 

Center apparently understood from the beginning that its 

treatment of Mr. Berry was for a workers’ compensation injury. 

As such, it was incumbent upon the Pain Center, as with any 

provider in that situation, to ensure that its treatment was 

authorized by the workers’ compensation carrier. I understand 

from your correspondence that the workers’ compensation 

claims administrator has initially denied the relevant claims. 

However, it does not appear that Mr. Berry or your client has 

exhausted the administrative or appeals process in that regard. 

Since workers’ compensation claims are excluded from 

coverage under the Skilstaf Health Plan, as we previously 

informed you, the Pain Center might opt to continue pursuing 

whatever appropriate coverage might be available from the 

workers’ compensation carrier. 

Skilstaf-000204. 

26. In its June 10, 2005, correspondence, RRI also notified 

Plaintiff’s counsel that, to the extent he disagreed with RRI’s denial 

decision, the Plan “ha[d] its own appeals process, which [was] explained in 

Section 14 of the plan document already provided to you.” Skilstaf-00204. 

27. Despite the fact that RRI expressly notified Plaintiff’s counsel 

that the Plan had its own appeals process, Plaintiff never appealed RRI’s 

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initial decision to deny payment of Plaintiff’s claims. See Johnson’s 

Affidavit at ¶ 8. 

28. Instead, Plaintiff filed the instant lawsuit on or about October 6, 

2005, seeking coverage under the Plan for the costs it had incurred in 

treating Mr. Berry. See Ex. 3. 

II. THE JUDICIAL STANDARD OF REVIEW 

Under ERISA, “a deferential standard of review [is] appropriate when 

a [decision maker] exercises discretionary powers.” Firestone Tire & 

Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989). If a plan’s terms vest 

discretion in a decision maker to interpret that plan, then a court will uphold 

the decision maker’s judgment unless the decision maker has abused its 

discretion. Id.

The Plan vests full discretionary power in RRI to interpret the Plan, to 

determine all inquiries arising in the Plan’s administration, application, and 

interpretation, and to apply the Plan’s claim review procedures. Skilstaf00058, Skilstaf-00060 (defining RRI as the Plan Administrator and outlining 

the Plan Administrator’s discretionary authority). Therefore, RRI’s decision 

to deny Plaintiff’s claim is to be reviewed by the Court under the arbitrary 

and capricious standard of review. 

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Under the arbitrary and capricious standard of review, the Court is to 

first conduct a de novo review to determine whether the decision maker’s 

interpretation is “wrong” and the claimant’s rival interpretation reasonable. 

See Williams v. BellSouth Telecomms., Inc., 373 F.3d 1132, 1137-38 (11th 

Cir. 2004) (“recapitulat[ing]” the Eleventh Circuit’s multi-step approach for 

reviewing a benefit denial). In the Eleventh Circuit, a court “conducting a 

de novo review . . . is bound by the provisions of the documents establishing 

an employee benefit plan without deferring to either party’s interpretation.” 

Moon v. Am. Home Assurance Co., 888 F.2d 86, 89 (11th Cir. 1989) 

(internal quotation marks and citations omitted). If a de novo review reveals 

the decision maker’s interpretation to be “correct,” the inquiry ends and a 

court must uphold the decision maker’s determination. Adams v. Thiokol 

Corp., 231 F.3d 837, 843 (11th Cir. 2000). 

If, however, the court finds that the decision maker’s interpretation 

was “wrong,” it must then consider whether the interpretation was arbitrary 

and capricious. A reasonable decision must be upheld “even if there is 

evidence that would support a contrary decision.” Jett v. Blue Cross & Blue 

Shield of Ala., 890 F.2d 1137, 1140 (11th Cir. 1989). Therefore, any 

“wrong but reasonable interpretation is entitled to deference even though the 

claimant’s interpretation is also reasonable,” HCA Health Services of 

Case 3:06-cv-00711-MHT-WC Document 37 Filed 04/09/2007 Page 11 of 18
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Georgia, Inc. v. Employers Health Insurance Co., 240 F.3d 982, 994 (11th 

Cir. 2001), and even though evidence “would support a contrary decision[,]” 

Jett, 890 F.2d at 1140. 

When applying the arbitrary and capricious standard, “[t]he function 

of the court is to determine whether there was a reasonable basis for the 

decision, based upon the facts as known to the [decision maker] at the time 

the decision was made.” Id. at 1139. Further, when applying the arbitrary 

and capricious standard, a court is to limit its scope of review to the 

administrative record that was before the decision maker at the time the 

decision maker denied or terminated the claimant’s benefits. Paramore v. 

Delta Airlines, Inc., 129 F.3d 1446, 1451 (11th Cir. 1997). Therefore, to 

determine the propriety of RRI’s decision to deny Plaintiff’s claim, this 

Court’s scope of review is limited to the information that was available to 

RRI when it made its decision. 

III. RRI CORRECTLY DENIED PLAINTIFF’S CLAIM. 

In this action, Plaintiff seeks to recover the costs it incurred in treating 

Mr. Berry’s work-related injury – costs which Skilstaf properly refused to 

cover. Plaintiff’s ERISA § 502(a) claim is “to recover benefits due to [it] 

under the terms of [Mr. Berry’s] plan . . . .” 29 U.S.C. § 1132(a)(1)(B); see

Alday v. Container Corp., 906 F.2d 660, 665 (11th Cir. 1990) (“[A]ny 

Case 3:06-cv-00711-MHT-WC Document 37 Filed 04/09/2007 Page 12 of 18
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[participant’s] right to . . . benefits at a particular cost can only be found if it 

is established by contract under the terms of the ERISA-governed benefit 

plan document.”). Because RRI correctly determined that Skilstaf need not 

cover the costs that Plaintiff incurred when treating Mr. Berry’s work-related 

injury, Defendant’s Motion should be granted and Plaintiff’s claims 

dismissed. 

The Plan’s SPD makes clear that Skilstaf need not pay “[c]harges for 

injury . . . occurring during or arising from [a claimant’s] performance of 

service in a covered business or industry under worker’s compensation or an 

occupational disease act or law . . . .” Skilstaf-00040. It is undisputed that 

Plaintiff treated Mr. Berry for an injury he sustained in a work-related 

accident. See, e.g., Skilstaf-00211 (making clear, in each operative report 

that it submitted in connection with its treatment of Mr. Berry, that Plaintiff 

treated Mr. Berry for an injury he sustained in “a work related accident on 9-

26-2003”); Johnson’s Affidavit at ¶ 7 (confirming that Plaintiff never 

submitted any documentation that contradicted RRI’s understanding that 

Plaintiff treated Mr. Berry for a work-related injury). 

Under the SPD’s express terms, Skilstaf was not required to cover 

charges for any injury that Mr. Berry sustained in any work-related accident. 

Skilstaf-00040. Because it is undisputed that Plaintiff treated Mr. Berry for 

Case 3:06-cv-00711-MHT-WC Document 37 Filed 04/09/2007 Page 13 of 18
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an injury he sustained in a work-related accident, RRI correctly determined 

that Skilstaf need not cover the charges Plaintiff submitted in connection 

with its treatment of Mr. Berry. Accordingly, Skilstaf’s Motion should be 

granted and Plaintiff’s claims dismissed. 

IV. PLAINTIFF DID NOT EXHAUST THE PLAN’S 

ADMINISTRATIVE REMEDIES. 

“The law is clear in this circuit that plaintiffs in ERISA actions must 

exhaust available administrative remedies before suing in federal court.” 

Counts v. Am. Gen. Life and Accident Ins. Co., 111 F.3d 105, 107 (11th Cir. 

1997); see also Harrison v. United Mine Workers of Am. 1974 Benefit Plan 

& Trust, 941 F.2d 1190, 1193 (11th Cir. 1991); accord Merritt v. 

Confederation Life Ins. Co., 881 F.2d 1034, 1035 (11th Cir. 1989); Mason v. 

Cont’l Group, Inc., 763 F.2d 1219, 1227 (11th Cir. 1985). It is undisputed 

that Plaintiff has never requested a review of RRI’s initial claim denial, 

which is the available administrative remedy under the Plan. See Johnson’s 

Affidavit at ¶ 8. Accordingly, the claims Plaintiff has asserted in this federal 

court action should be dismissed. 

The Plan’s SPD makes clear that, whenever RRI denies a claim for 

coverage under the Plan, a claimant may appeal RRI’s initial denial decision. 

See Skilstaf-00058. On April 19, 2005, RRI notified Plaintiff’s counsel that 

Case 3:06-cv-00711-MHT-WC Document 37 Filed 04/09/2007 Page 14 of 18
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the claims it had submitted in connection with its treatment of Mr. Berry 

were not covered under the terms of the Plan because “the bills in question 

[were] the result of an alleged work-related injury or [were] otherwise 

subject to workers’ compensation law.” See Skilstaf-00101; see also

Skilstaf-00204. In addition to providing Plaintiff’s counsel with a copy of 

the SPD, which clearly explained the Plan’s administrative remedies, RRI 

also expressly notified Plaintiff’s counsel that the Plan had “its own appeals 

process, which [was] explained in Section 14 of the plan document already 

provided to you.” Skilstaf-00204. Despite this express notification to 

Plaintiff’s counsel, Plaintiff never appealed RRI’s initial decision to deny 

payment with respect to the claims Plaintiff had submitted in connection 

with its treatment of Mr. Berry. See Johnson’s Affidavit at ¶ 8. Instead, 

Plaintiff prematurely filed the instant lawsuit. 

Courts in this Circuit have made clear that a plaintiff’s lawsuit should 

be dismissed if the plaintiff has untimely attempted to exhaust a plan’s 

administrative remedies. In Stephenson v. Provident Life & Accident 

Insurance Company, for example, the insurer-defendant terminated the 

plaintiff’s disability benefits and told her that she had sixty days to appeal 

the insurer’s denial decision. 1 F. Supp. 2d 1326, 1331-32 (M.D. Ala. 

1998). Despite this notification, the plaintiff in Stephenson did not respond 

Case 3:06-cv-00711-MHT-WC Document 37 Filed 04/09/2007 Page 15 of 18
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“until approximately four and one-half months after” she received the 

insurer’s notice – or about two and one-half months too late. See id. at 

1332. Undoubtedly recognizing that a dismissal based on this two and onehalf months delay in requesting a review would result in a dismissal with 

prejudice of the plaintiff’s claims, the United States District Court for the 

Middle District of Alabama nonetheless granted summary judgment in the 

insurer’s favor based on the plaintiff’s failure to submit a timely request for 

review of the decision to discontinue disability benefits. See id. In the 

instant dispute, Plaintiff has never requested any review of RRI’s decision to 

deny payment of the claims that Plaintiff submitted in connection with its 

treatment of Mr. Berry. Accordingly, Plaintiff’s claims in this lawsuit 

should be dismissed with prejudice. See id.

V. CONCLUSION 

 For the reasons detailed above, Skilstaf is entitled to summary 

judgment in its favor and Plaintiff’s claims should be dismissed with 

prejudice. 

Case 3:06-cv-00711-MHT-WC Document 37 Filed 04/09/2007 Page 16 of 18
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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 April 9th, 2007, 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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