IN THE UNITED STATED DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

ROBERT E. COLE Attorney For Plaintiff

ROBERT E. COLE, P.C.

ATTORNEY I.D. NO. 73263

437 CHESTNUT STREET, SUITE 218

PHILADELPHIA, PA 19106

(215) 922-2050

___________________________________

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

d/b/a THE PAIN CENTER

501-07 SOUTH 12TH STREET

PHILADELPHIA, PA 19147

Plaintiff :

V. : NO. 3:06cv728-MHT

SKILSTAF, INC. :

P.O. BOX 729

ALEXANDER CITY, AL 35011

Defendant :

___________________________________

PLAINTIFF OWEN J. ROGAL, D.D.S., P.C.’S REPLY IN OPPOSITION TO

DEFENDANT SKILSTAF, INC.'S MOTION FOR SUMMARY JUDGMENT

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

Center, by and through its undersigned counsel, does hereby

respond to defendant's Motion and avers as follows:

1. The plaintiff in this matter is Owen J. Rogal, D.D.S.,

P.C., d/b/a The Pain Center, a corporation with principal place

of business being located at 501-07 South 12th Street,

Philadelphia, PA 19147.

Case 3:06-cv-00728-MHT-WC Document 45 Filed 06/04/2007 Page 1 of 6
2. Defendant Skilstaf, Inc. is an Alabama corporation and

insurance provider/plan administrator with its headquarters and

principal place of business located at P.O. Box 729, Alexander

City, AL 35011.

3. This matter commenced in October, 2005 in Philadelphia

County, PA and was removed to federal district court in

Philadelphia, PA on or about November of 2005.

4. This matter was transferred from federal district

court in Philadelphia, PA to the instant venue on or about June

26, 2006.

5. This matter concerns plaintiff medical provider’s

allegations of non-payment of medical bills by defendant

incurred by patient/insured Dianna Berry.

6. Dianna Berry executed an assignment of rights to

plaintiff.

7. Defendant filed the instant Motion for Summary

Judgment upon ground that plaintiff provided chiropractic care

to Dianna Berry.

8. Dianna Berry sought treatment with plaintiff from

January, 2005 through June, 2005 due to chronic pain.

9. Group health plan sponsor for Dennis Berry’s employee

welfare benefit plan is defendant herein.

Case 3:06-cv-00728-MHT-WC Document 45 Filed 06/04/2007 Page 2 of 6
 10. Dianna Berry is spouse of Dennis Berry, and thus is

covered by Mr. Berry’s employee group health plan

sponsored/administered by defendant.

 11. Dianna Berry received radiofrequency surgical

treatment and related on the dates aforesaid. See Exhibit “A”

attached hereto and made by reference a part hereof, literature

and peer review article on said treatment.

 12. Plaintiff forwarded bills for medical services

provided to Dianna Berry to defendant herein. Defendant made

payment on bills from January, 2005 to April, 2005.

 13. By correspondence of July 14, 2005, defendant

requested back its payments made to plaintiff, “It appears that

these claims were for services provided by chiropractors”.

(emphasis added). See Exhibit “C”, attached hereto and made by

reference a part hereof, copy of said correspondence.

 14. By correspondence of July 18, 2005, plaintiff

responded, “At no time did this office bill for chiropractic

services.” See Exhibit “C”, attached hereto and made by

reference a part hereof, copy of said correspondence.

 15. By correspondence of plaintiff’s counsel of September

6, 2005, plaintiff forwarded documentation in the nature of

summary progress reports regarding Dianna Berry’s treatment by

plaintiff. See Exhibit “C”, attached hereto and made by

reference a part hereof, copy of said correspondence.

Case 3:06-cv-00728-MHT-WC Document 45 Filed 06/04/2007 Page 3 of 6
 16. By correspondence of September 26, 2005, plan

administrator Robert C. Johnson forwarded correspondence to

plaintiff counsel indicating, “As the Plan already has exceeded

the annual limit for chiropractors’ services during 2005 for Ms.

Berry, no additional benefits are payable under the Plan for the

referenced claims. In addition, no future claims will be

covered for any such services administered during 2005.”

(emphasis added). See Exhibit “C”, attached hereto and made by

reference a part hereof, copy of said correspondence.

 17. By correspondence of September 30, 2005, plaintiff’s

counsel again pointed out that plaintiff does not provide

chiropractic services, “Perhaps you should have read the

documentation enclosed with our prior correspondence. The Pain

Center at no point provided Mrs. Berry with chiropractic

treatment. In fact, The Pain Center has never offered said

discipline to any patient.” (emphasis in original). See Exhibit

“C”, attached hereto and made by reference a part hereof, copy

of said correspondence.

 18. Plaintiff did not request review/appeal further as it

was apparent to plaintiff and counsel that any further efforts

would be futile.

 19. Defendant denied payment for medical treatment

rendered by plaintiff to Dianna Berry on the sole basis that

Case 3:06-cv-00728-MHT-WC Document 45 Filed 06/04/2007 Page 4 of 6
same was chiropractic care, as is evidenced by the collective

Exhibit “C” attached hereto.

 20. Defendant never indicated to plaintiff or counsel that

it had sought independent review of Dianna Berry’s medical

records and never provided plaintiff or counsel with

documentation of review.

 21. Defendant’s Motion, and specifically its attached

affidavit of Robert C. Johnson, is a deliberately false effort

to deceive this Court and contrary to defendant’s documented

denial of benefits in determination that plaintiff provided

chiropractic care to Dianna Berry.

 22. As plaintiff trusts is quite obvious, radiofrequency

surgery is not chiropractic care.

 23. Defendant’s plan administrator has been afforded

discretion to interpret provisions of the Plan and the Plan is

self-insured with the plan sponsor making contributions to the

plan based upon determination of the amounts necessary to timely

pay benefits and expenses. As such, the administrator operates

under a conflict of interest.

 24. Herein, the heightened arbitrary-and-capricious

standard of review applies to the administrator's interpretation

of the plan where the plan affords the administrator discretion

and the administrator has a conflict of interest. Brown v. Blue

Cross & Blue Shield of Ala., Inc., 898 F.2d 1556 (1990).

Case 3:06-cv-00728-MHT-WC Document 45 Filed 06/04/2007 Page 5 of 6
 25. Defendant’s plan interpretation that medical bills for

treatment rendered to Dianna Berry by plaintiff were excluded

due to being chiropractic care was in error, willful, wanton and

grossly negligent.

 26. Plaintiff has exhausted all administrative remedies

prior to filing the instant matter.

 27. Defendant has incorrectly determined that benefits are

excluded in the instant matter.

WHEREFORE, plaintiff respectfully requests that this

court deny defendant’s Motion for Summary Judgment.

s/Robert E. Cole______________________

Robert E. Cole, Esquire

Attorney for Plaintiff

Atty. I.D. No. 73263

437 Chestnut Street, Suite 218

Philadelphia, PA 19106

(215) 922-2050

recoleesq6@juno.com

Case 3:06-cv-00728-MHT-WC Document 45 Filed 06/04/2007 Page 6 of 6
IN THE UNITED STATED DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

ROBERT E. COLE Attorney For Plaintiff

ROBERT E. COLE, P.C.

ATTORNEY I.D. NO. 73263

437 CHESTNUT STREET, SUITE 218

PHILADELPHIA, PA 19106

(215) 922-2050

___________________________________

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

d/b/a THE PAIN CENTER

501-07 SOUTH 12TH STREET

PHILADELPHIA, PA 19147

Plaintiff :

V. : NO. 3:06cv728-MHT

SKILSTAF, INC. :

P.O. BOX 729

ALEXANDER CITY, AL 35011

Defendant :

___________________________________

ORDER

AND NOW, this day of , 2007, upon

consideration of defendant's Motion for Summary Judgment and

plaintiff’s Reply thereto and the memorandum of law filed in

support thereof, it is hereby ORDERED and DECREED that the

Motion for Summary Judgment is DENIED.

BY THE COURT:

_________________________

 J.

Case 3:06-cv-00728-MHT-WC Document 45-2 Filed 06/04/2007 Page 1 of 1