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 REPLY TO PLAINTIFF’S OPPOSITION 

TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Defendant Skilstaf, Inc. (“Skilstaf”) hereby submits this reply to Plaintiff’s 

Reply in Opposition to Defendant’s Motion for Summary Judgment.1

 This reply 

addresses three issues: (1) which standard of review applies in this case; (2) 

whether Plaintiff exhausted the Skilstaf Group Health Plan’s (the “Plan”) 

administrative remedies; and (3) whether Plaintiff’s treatment of Dianna Berry 

(“Mrs. Berry”) was covered under the terms of the Plan. 

 

1

 For ease of reference, Plaintiff’s Reply in Opposition to Defendant Skilstaf, Inc.’s Motion for 

Summary Judgment will be referred to herein as “Plaintiff’s Opposition,” Plaintiff’s Brief in 

Opposition to Defendant Skilstaf, Inc.’s Motion for Summary Judgment will be referred to 

herein as “Plaintiff’s Brief,” and Defendant’s Motion for Summary Judgment will be referred to 

herein as “Defendant’s Motion.” 

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I. THERE IS NO CONFLICT OF INTEREST BECAUSE THE PLAN 

ADMINISTRATOR RESPONSIBLE FOR MAKING 

DISCRETIONARY DECISIONS DOES NOT PAY CLAIMS 

UNDER THE PLAN. 

In the Eleventh Circuit, a conflict of interest exists, such that the heightened 

arbitrary and capricious standard of review applies, where the plan administrator 

responsible for making discretionary benefits or coverage decisions is also 

responsible for paying claims under the plan. See, e.g., Brown v. Blue Cross &

Blue Shield of Ala., Inc., 898 F.2d 1556, 1562 (11th Cir. 1990) (noting that a 

“‘conflict of interest [exists] when the fiduciary making a discretionary decision is 

also the insurance company responsible for paying the claims’”) (quoting Jader v. 

Principal Mut. Life Ins. Co., 723 F. Supp. 1338, 1343 (D. Minn. 1989)). In its 

Brief, Plaintiff incorrectly suggests that the heightened arbitrary and capricious 

standard of review is applicable in this case because “the plan affords the 

administrator discretion and the administrator has a conflict of interest . . . .” 

(Plaintiff’s Brief at 4 ¶ 3). Plaintiff’s suggestion notwithstanding, the Plan 

Administrator (Risk Reduction, Inc. (“RRI”)) responsible for making discretionary 

decisions under the Plan is not responsible for funding the Plan. See Skilstaf00058, Skilstaf-00060.2

 Accordingly, and because there is no conflict of interest, 

 

2

 Excerpts from the Administrative Record were attached as Exhibits A and B to the Affidavit of 

Robert Johnson, which was submitted contemporaneously with Skilstaf’s Motion for Summary 

Judgment. For ease of reference, pages within each respective exhibit will be referred to in this 

reply brief by their bates-labeled page numbers only, such as “Skilstaf-00125.” 

Case 3:06-cv-00728-MHT-WC Document 61 Filed 06/11/2007 Page 2 of 12
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the more deferential arbitrary and capricious standard of review is applicable in 

this case. HCA Health Servs. of Ga., Inc. v. Employers Health Ins. Co., 240 F.3d 

982, 994 (11th Cir. 2001) (“If no conflict of interest exists, then only arbitrary and 

capricious review applies and the claims administrator’s wrong but reasonable 

decision will not be found arbitrary and capricious.”). 

As the Plan’s SPD makes clear, RRI is the Plan Administrator; Skilstaf, by 

contrast, is the Plan Sponsor. Skilstaf-00060. As the Plan Administrator, RRI is 

vested with full discretionary power 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. Skilstaf-00058, Skilstaf-00060. Skilstaf, by 

contrast, is responsible for making “contributions to the plan” based “upon its 

determination of the amounts necessary to timely pay benefits and expenses . . . .” 

Skilstaf-00060. Because Skilstaf funds the Plan and RRI, who is responsible for 

making discretionary decisions under the Plan, does not, there is no conflict of 

interest and the deferential arbitrary and capricious standard of review applies in 

this case. HCA Health Services of Georgia, Inc., 240 F.3d at 994; see also

Brown, 898 F.2d at 1562. 

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II. PLAINTIFF HAS NOT EXHAUSTED THE PLAN’S 

ADMINISTRATIVE REMEDIES.3

 

Notwithstanding Plaintiff’s bald suggestion to the contrary, see Plaintiff’s 

Brief at 4, 12-14, Plaintiff has not exhausted the Plan’s administrative remedies. 

Accordingly, Plaintiff’s claims should be dismissed or, alternatively, remanded for 

further administrative proceedings under the Plan. See Bickley v. Caremark Rx, 

Inc., 461 F.3d 1325, 1328 (11th Cir. 2006) (“The law is clear in this circuit that 

plaintiffs in ERISA actions must exhaust available administrative remedies before 

suing in federal court.”); see also Stephenson v. Provident Life & Accident Ins. 

Co., 1 F. Supp. 2d 1326, 1331-32 (M.D. Ala. 1998) (granting summary judgment 

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

review of the insurer’s decision to discontinue the plaintiff’s disability benefits). 

The Plan’s SPD makes clear that, where “any factual or material dispute 

occurs, the dispute shall be resolved in the discretion of [RRI] pursuant to the 

CLAIMS PROCEDURES of the plan.” Skilstaf-00061. In the event of a claim 

denial, the Plan’s claim review procedure requires the claimant to “make a written 

request for a full and fair review of the claim denial . . . .” Skilstaf-00058. After a 

 

3

 Although Skilstaf did not raise a failure-to-exhaust-based argument in its initial brief, it is wellestablished that “nothing in the extant authorities, or in the Federal Rules of Civil Procedure, 

forbids a movant from making supplemental record submissions in a reply brief to rebut specific 

arguments raised by the non-movant’s opposition brief.” Hammons v. Computer Programs & 

Sys., Inc., No. 05-0613-WS-C, 2006 WL 3627117, at *14 (S.D. Ala. Dec. 12, 2006). Because 

Plaintiff raised both exhaustion and futility issues in its Opposition, see Plaintiff’s Brief at 4, 12-

14, Skilstaf is permitted to address those arguments in this reply brief. See Hammons, 2006 WL 

3627117, at *14. 

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claimant submits this written appeal, RRI has, depending on the circumstances, 

sixty (60) to one hundred twenty (120) days to render a “written decision” either 

affirming or denying its initial denial decision. See id. 

Although RRI mistakenly paid Plaintiff’s claims as an initial matter, RRI 

informed Plaintiff on July 14, 2005, that the costs it had incurred when it treated 

Mrs. Berry were not covered under the Plan. See Skilstaf-00093. On September 6, 

2005, Plaintiff’s counsel submitted its written “appeal” of RRI’s decision “not to 

pay The Pain Center’s medical bills incurred by Dianna Berry” and attached 

documentation which allegedly “indicat[ed] improvement” in Mrs. Berry’s 

physical condition as a result of Plaintiff’s radiofrequency therapy. Skilstaf-00087. 

Twenty days later, on September 26, 2005, RRI’s Robert Johnson informed 

Plaintiff’s counsel that the “additional material that [he had] provided” on 

September 6, 2005 “contain[ed] insufficient evidence that M[r]s. Berry ha[d] 

experienced documented physical improvement from [Plaintiff’s] treatments.” 

Skilstaf-00094. Moreover, Mr. Johnson instructed Plaintiff’s counsel to “let [him] 

know” if he had “additional information or questions . . . .” Id. 

RRI never informed Plaintiff that its decision was final or that Plaintiff had 

exhausted the Plan’s administrative remedies. Nonetheless, and despite the fact 

that RRI had previously provided Plaintiff’s counsel with a copy of the Plan’s SPD 

and had specifically referred Plaintiff’s counsel to the “appeals process” outlined 

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therein, Plaintiff prematurely filed the instant litigation on October 7, 2005 – a 

mere 31 days after he had “appealed” RRI’s initial denial decision. See Skilstaf00101 (providing Plaintiff’s counsel with a copy of the Plan’s SPD), Skilstaf00204 (informing Plaintiff’s counsel that the Plan had “its own appeals process, 

which is explained in Section 14 of the plan document already provided to you”);4

see also Defendant’s Brief, Ex. 3 (Plaintiff’s Complaint). 

Because the Plan specifically provides RRI with at least sixty days to render 

a written decision either affirming or denying its initial denial decision, Plaintiff is 

incorrect that it has exhausted the Plan’s administrative remedies.5

 See Plaintiff’s 

Brief at 4 ¶ 11, 12-14. Accordingly, Plaintiff’s claims should be dismissed or, 

alternatively, remanded for further administrative proceedings under the Plan. See

Bickley, 461 F.3d at 1328, 1330; Stephenson, 1 F. Supp. 2d at 1331-32. 

III. RRI CORRECTLY DENIED PLAINTIFF’S CLAIMS. 

The Plan’s SPD makes absolutely clear that Skilstaf need not cover (1) 

“[s]ervices, expenses, or supplies that the plan administrator determines are not 

 

4

 Skilstaf-00101 and Skilstaf-00204, which were not submitted with Defendant’s initial Motion, 

are attached collectively hereto as Exhibit A. 

5

 Similarly unavailing is Plaintiff’s conclusory assertion that “[a]ny further attempts . . . to 

engage the administrative appeal process in hope of remedy therein in this matter would [have] 

be[en] folly.” Plaintiff’s Brief at 14. See Bickley, 461 F.3d at 1330 (“emphasiz[ing] that the 

exhaustion requirement reduces the number of frivolous lawsuits under ERISA, minimizes the 

cost of dispute resolution, enhances the plan’s trustees’ ability to carry out their fiduciary duties 

expertly and efficiently by preventing premature judicial intervention in the decisionmaking 

process, and allows prior fully considered actions by . . . plan trustees to assist courts if the 

dispute is eventually litigated”) (internal citations and quotations omitted); see also id. (“Bare 

allegations of futility are no substitute for the ‘clear and positive’ showing of futility required 

before suspending the exhaustion requirement.”) (internal citations and quotations omitted). 

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medically necessary[,]” or (2) rehabilitative-type care that does not result in 

“documented continuous physical improvement.” See Skilstaf-00039, Skilstaf00032–Skilstaf-00033.6

 Because Plaintiff’s treatment of Mrs. Berry was not 

medically necessary and because Plaintiff failed to present objective evidence 

documenting that its treatment improved Mrs. Berry’s physical condition, RRI 

correctly determined that Skilstaf need not cover the costs Plaintiff incurred when 

it treated Mrs. Berry. 

In its Opposition, Plaintiff neither challenges nor presents any objective 

evidence refuting the contention that Plaintiff’s treatment of Mrs. Berry was (a) not 

medically necessary, or (b) failed to improve Mrs. Berry’s physical condition. To 

the contrary, Plaintiff argues only that “Defendant incorrectly and egregiously 

characterized Plaintiff’s treatment of Dianna Berry as chiropractic in order to avoid 

payment for said services.” Plaintiff’s Brief at 9. In so arguing, Plaintiff attempts 

to avoid summary judgment solely by limiting the bases on which Skilstaf may 

rely in the instant litigation to RRI’s characterization of Plaintiff’s radiofrequency 

treatments as chiropractic. 

In arguing that Skilstaf should be precluded from relying on any basis for 

denial that was not expressly asserted in each and every benefits-denial-based 

 

6

 Plaintiff’s suggestion notwithstanding, see Plaintiff’s Brief at 9, the Plan’s SPD specifically 

provides in its “REHABILITATION AND PHYSICAL AND CHIROPRACTIC THERAPY 

BENEFITS” section that Skilstaf need not cover the cost of rehabilitative-type care if the 

provision of such care does not result in “documented continuous physical improvement.” 

Skilstaf-00032, Skilstaf-00033.

Case 3:06-cv-00728-MHT-WC Document 61 Filed 06/11/2007 Page 7 of 12
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communication drafted by RRI, Plaintiff attempts to bootstrap a victory on the 

merits of its Dianna Berry-based claims by denying Skilstaf the opportunity to 

review said claims under the claims review procedure that is expressly outlined in 

the Plan’s SPD. That is, Plaintiff ingeniously requests the Court to both (1) permit 

Plaintiff to file a lawsuit before RRI has had adequate opportunity to review 

Plaintiff’s claims, and (2) simultaneously prohibit Skilstaf from relying on any 

basis for denial that was not asserted during RRI’s precipitately abbreviated 

review. 

Plaintiff’s attempt to so avoid summary judgment fails for two reasons. 

First, RRI did, in fact, specifically inform Plaintiff that its denial was based, at 

least in part, on Plaintiff’s failure to document that its radiofrequency therapy had 

improved Mrs. Berry’s physical condition. See, e.g., Skilstaf 00093 (noting, in a 

July 14, 2005, letter to Plaintiff, that its radiofrequency treatments would be 

covered only if “there [wa]s ‘documented physical improvement’ from that 

treatment”); Skilstaf-00094 (confirming, in a September 26, 2005, letter to 

Plaintiff’s counsel, that the documentation he had submitted to date “contain[ed] 

insufficient evidence that M[r]s. Berry has experienced documented physical 

improvement from [Plaintiff’s repeated radiofrequency] treatments”). 

Second, and in any event, the federal judiciary has made clear that the “mere 

omission of a defense in a letter to a plan beneficiary does not constitute a waiver 

Case 3:06-cv-00728-MHT-WC Document 61 Filed 06/11/2007 Page 8 of 12
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of the defense.” Loyola Univ. of Chicago v. Humana Ins. Co., 996 F.2d 895, 901 

(7th Cir. 1993); see Farley v. Benefit Trust Life Ins. Co., 979 F.2d 653, 659 (8th 

Cir. 1992) (holding that a plan administrator could rely on policy provisions not 

“specifically referred” to in its “denial of benefits” letters where the plan 

administrator had not “express[ed] any intention to surrender its right to enforce 

applicable provisions of the policy other than the ones cited in [its] letters”). 

Because Plaintiff has not submitted objective evidence or in any other way 

refuted the contention that Plaintiff’s treatment of Mrs. Berry was (a) not medically 

necessary, or (b) failed to improve Mrs. Berry’s physical condition, RRI’s 

decision, which was based on the SPD’s plain language and on the opinion of an 

independent physician that reviewed Mrs. Berry’s medical records, was correct. 

Accordingly, Skilstaf is entitled to judgment in its favor and RRI’s decision to 

deny Plaintiff’s claims should be upheld by this Court. See Adams v. Thiokol 

Corp., 231 F.3d 837, 843 (11th Cir. 2000) (“If the administrator’s interpretation 

was legally correct, the inquiry ends.”). 

Even assuming arguendo that Skilstaf may not rely on bases that were not 

previously asserted in each and every one of RRI’s denial of benefits-based 

communications, Plaintiff’s claims should, at the very least, be remanded for 

further administrative proceedings under the Plan. See, e.g., Shannon v. Jack 

Eckerd Corp., 113 F.3d 208, 210 (11th Cir. 1997) (making clear that, where a 

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claimant “wish[es] to present additional information that might affect the 

determination of eligibility for benefits, the proper course [is] . . . to remand to [the 

plan administrator] for a new determination”); see also Levinson v. Reliance 

Standard Life Ins. Co., 245 F.3d 1321, 1330 (11th Cir. 2001) (agreeing that, “as a 

general rule, remand to the plan fiduciary is the appropriate remedy when the plan 

administrator has not had an opportunity to consider evidence on an issue” and 

reiterating that only in “unusual” cases is “the general rule of remand . . . neither 

appropriate nor necessary”). In fact, this very Court has recently recognized that, 

“[g]enerally, a district court will remand a case to the administrative body if its 

decision was based upon an evidentiary error. This is particularly true when the 

plan administrator has been granted discretion and the review will be deferential.” 

Culp, Inc. v. Cain, 414 F. Supp. 2d 1118, 1125 n.16 (M.D. Ala. 2006) (internal 

citations omitted). Such logic is particularly compelling where, as here, Plaintiff 

has artfully attempted to prevent Skilstaf from relying on any basis for denial not 

expressly asserted during a claims review procedure that Plaintiff single-handedly 

cut short. Accordingly, and even if the Court determines that Skilstaf may not rely 

on bases that were not previously asserted in each and every one of RRI’s denial of 

benefits-based communications, Plaintiff’s claims should, at the very least, be 

remanded for further administrative proceedings under the Plan. 

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IV. CONCLUSION 

For the reasons detailed above and in its opening brief, Skilstaf is entitled to 

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

prejudice. Alternatively, Plaintiff’s claims should be remanded for further 

administrative proceedings under the Plan. 

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 June 11, 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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