Sissy Simmons v. Blue Cross Blue Shield of Tennessee

In her notice of appeal, Simmons also challenges the district court’s denial of a motion to strike. Because
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she fails to present any argument on this claim, we find that she has abandoned this issue on appeal. See Sommer v.
Davis, 317 F.3d 686, 691 (6th Cir. 2003).
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0014n.06
Filed: January 8, 2008
Case No. 06-6112
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SISSY SIMMONS,
Plaintiff-Appellant,
v.
BLUE CROSS BLUE SHIELD OF
TENNESSEE,
Defendant-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE
BEFORE: GUY, BATCHELDER, and GILMAN, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Plaintiff Sissy Simmons appeals the orders
of the district court granting judgment on the administrative record in favor of Defendant Blue Cross
Blue Shield of Tennessee (“Blue Cross”) on Simmons’s claim under the Employee Retirement
Income Security Act of 1974 (“ERISA”), see 29 U.S.C. § 1132(a)(1)(B), and denying her Motion
to Alter or Amend the Judgment (“Motion to Alter”). Because the district court neither erred in1
granting judgment on the administrative record to Blue Cross nor abused its discretion in denying

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The parties agreed to allow a United State Magistrate Judge to conduct any and all proceedings in this
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matter and enter the order of judgment, in accordance with 28 U.S.C. § 636(c) and Rule 73(b) of the Federal Rules
of Civil Procedure. The appeal from the magistrate judge’s order is therefore directly before this court. See 28
U.S.C. § 636(c)(3) and FED. R. CIV. P. 73(c).
An ACI is a two-part procedure that regenerates cartilage and restores function to the joint.
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Blue Cross’s plan excludes from coverage “[s]ervices or supplies that are . . . Investigational in nature.”
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the Motion to Alter, we AFFIRM the district court’s decisions in their entirety.2
Simmons suffers from a long-standing knee injury and the resulting loss of articular cartilage
at the kneecap. In 2003, Simmons was referred to Dr. Scott Gillogly, who determined that Simmons
needed an Autologous Chondrocyte Implantation (“ACI”) for her knee because she did not yet3
qualify for a total knee replacement.
In September 2003, Dr. Gillogly contacted Blue Cross, which insures Simmons under a fully
funded plan — governed by ERISA — and bears the burden of paying claims, to obtain prior
authorization for an ACI procedure for Simmons. In early October 2003, Blue Cross denied
coverage because it considered the ACI procedure investigational and, therefore, not covered by
Simmons’s health benefits plan with Blue Cross. Blue Cross’s benefits plan gives Blue Cross4
discretion to determine eligibility for benefits or to construe the terms of the plan and to determine
which treatments are investigational.
In early December 2003, Simmons filed a grievance with Blue Cross’s Level I Grievance
Committee, seeking to have Blue Cross cover the ACI procedure. In January 2004, the Level I
Grievance Committee denied Simmons’s request, stating “this service is considered investigational
in accordance with the terms of your health benefits plan.”
Simmons next sought review with Blue Cross’s Level II Grievance Committee. On March
9, 2004, Simmons and her attorney attended a grievance hearing. Because the Level I denial letter

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did not specifically indicate on what grounds Blue Cross relied in concluding that the ACI procedure
was investigational, Simmons’s counsel began the hearing by requesting that information. The
Committee’s chairman stated that the plan’s definition of investigational service was one
consideration, but the critical factor was Blue Cross’s Medical Policy Manual. The Medical Policy
Manual, which is produced by the Blue Cross and Blue Shield Association Technology Evaluation
Center, specifically stated that the ACI procedure was investigational. Simmons’s benefits plan
specifically permits Blue Cross to rely on findings of the Blue Cross and Blue Shield Association
Technology Evaluation Center in determining whether a particular treatment is investigational.
During the course of the hearing, the Level II Committee members and Simmons’s counsel
discussed the possibility of asking Blue Cross’s Medical Policy Review Committee to review its
determination as to the investigational nature of the ACI procedure and consider whether the Medical
Policy Manual should be revised. Simmons readily agreed to have the Medical Policy Review
Committee review the status of the ACI procedure.
Accordingly, within about 24 hours of the Level II hearing, the Level II Grievance Committee
notified Simmons that the ACI procedure was investigational “pending review of the medical
information submitted as well as additional medical information Dr. Anderson will be submitting
to the Medical Policy Review Committee.”
On June 23, 2004, Simmons received a letter from the Level II Grievance Committee stating
that the Medical Policy Review Committee had determined that the ACI procedure remained
investigational, and therefore Blue Cross would not cover the costs of the procedure. Simmons
brought suit pursuant to 29 U.S.C. § 1132(a)(1)(B), seeking to recover benefits due under the terms
of a health benefits plan and alleging that Blue Cross had erroneously denied her request for

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coverage for the ACI procedure.
In her motion for judgment on the administrative record, Simmons asserted that Blue Cross’s
decision to deny coverage for the ACI procedure was arbitrary and capricious because “the
overwhelming medical evidence demonstrates that the procedure is not investigational” and that the
method by which Blue Cross reached this decision was arbitrary and capricious. She argued that (1)
the ACI procedure is not investigational; (2) Blue Cross had a conflict of interest because it was
responsible for both the determination of whether Simmons was eligible for coverage, and the
payment for the procedure if it approved coverage; (3) Blue Cross “relied primarily on a nurse’s
summary of the Technology Evaluation Center Opinion in denying Mrs. Simmons’[s] claim”; (4)
Blue Cross violated its grievance procedures because the Medical Policy Review Committee made
the decision to deny coverage; and (5) Blue Cross never gave her the opportunity to rebut the
evidence relied upon by the Level II Committee in denying coverage.
Applying the arbitrary-and-capricious standard of review, the district court concluded that
(1) the proper inquiry before the court was not the reasonableness of Blue Cross’s decision, i.e.,
whether the ACI procedure is investigational, but whether Blue Cross’s decision was arbitrary and
capricious in light of the plan’s provisions and the evidence before the plan administrator; (2)
substantial evidence in the administrative record supported Blue Cross’s decision that the ACI
procedure remained investigational; (3) while Blue Cross made the decision concerning coverage
and paid out benefits, Simmons failed to establish that the conflict of interest actually influenced
Blue Cross’s decision to deny benefits; (4) Simmons plainly and readily agreed to have the Medical
Policy Review Committee reconsider its determination that the ACI procedure is investigational; (5)
the fact that a nurse made a recommendation, which the Medical Policy Review Committee

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ultimately adopted, was completely irrelevant because nothing in the plan prevented the Medical
Policy Review Committee from considering the recommendation of a registered nurse; and (6)
Simmons had an opportunity to rebut the evidence relied upon by the Medical Policy Review
Committee.
Simmons then moved to alter or amend the judgment under Rule 59(e) of the Federal Rules
of Civil Procedure, asserting two “legal” errors made by the district court. First, Simmons argued,
the district court failed to determine whether Blue Cross violated ERISA’s Full and Fair Review
Regulations, which relate to claims procedures that a plan provider must have in place. See 29
C.F.R. § 2560.503-1(h)(3)(i)-(vi). Simmons conceded, however, that she did not raise this argument
in her motion on the administrative record. Second, she argued that the district court applied the
wrong standard of review when it evaluated Blue Cross’s decision. Instead of applying the arbitrary-
and-capricious standard, Simmons contended that the court should have reviewed de novo Blue
Cross’s actions. The district court denied the Rule 59(e) motion because, until she filed her Rule
59(e) motion, Simmons had never argued that Blue Cross violated the Full and Fair Review
Regulations, and she had conceded previously that the district court should apply the arbitrary-and-
capricious standard of review.
On appeal, Simmons argues primarily that Blue Cross violated the Full and Fair Review
Regulations when it denied her request for coverage. We agree with the district court that Simmons
had the opportunity to raise this argument at the appropriate time and simply failed to do so. The
district court correctly refused to entertain any argument relating to the Full and Fair Review
Regulations, and we likewise decline to consider those arguments on appeal.
Having carefully reviewed the administrative record, the applicable law, and the parties’

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briefs, and having had the benefit of oral argument, we find that the district court’s decisions
carefully and correctly set out the law governing the issues presented and clearly articulate the
reasons underlying the decisions. The issuance of a full written opinion by this court would serve
no useful purpose. Accordingly, for the reasons stated in the district court’s decisions, we AFFIRM
the orders granting judgment on the administrative record and denying the Motion to Alter.

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