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PERSONNEL POOL OF OCEAN CTY., INC. v. TRUSTEES & G

October 4, 1995

PERSONNEL POOL OF OCEAN COUNTY, INC., Plaintiff,
v.
TRUSTEES OF THE HEAVY AND GENERAL LABORERS' WELFARE FUND OF NEW JERSEY, LOCALS 472-172, Defendant.



The opinion of the court was delivered by: PARELL

 PARELL, District Judge

 This is an action by plaintiff, Personnel Pool of Ocean County, Inc., a commercial provider of nursing services, seeking ERISA benefits for nursing care provided to the late Mr. Joseph Lebiedz ("the insured"), who was a participant in a non-profit ERISA health and welfare plan administered by defendant Trustees of the Heavy and General Laborers' Welfare Fund of New Jersey, Locals 472 and 172 ("the Fund"). The Court hereby issues its Findings of Fact and Conclusions of Law pursuant to Fed. R. Civ. P. 52(a), following non-jury trial. For the reasons stated, judgment will be entered in favor of defendant.

 PROCEDURAL HISTORY

 The procedural history may be summarized as follows. The action was commenced in this Court by Petition for Removal pursuant to 28 U.S.C. § 1441 et seq. filed by defendant Fund on January 10, 1992. Attached to the Petition for Removal was a pleading styled "First Amended Complaint", originally filed in the Superior Court of New Jersey, Law Division, Ocean County, by plaintiff Personnel Pool of Ocean County, Inc., d/b/a Medical Personnel Pool, against defendant Fund (incorrectly designated as "Heavy and General Laborer's Funds of New Jersey"), and against defendants Estate of Joseph Lebiedz, Dale Phillips and Pola Hage. The latter defendant, Pola Hage, had previously been dismissed from the action by order entered in the Superior Court dated July 25, 1991. The basis for removal was the Sixth Count of the Amended Complaint which added an ERISA claim against the Fund. It is undisputed that the insured assigned his ERISA benefit rights to plaintiff. (See Exhibit P-13.) *fn1" This Court has previously ruled that plaintiff thereby acquired standing to sue. (See Memorandum and Order filed herein on February 24, 1993.) Defendants Estate of Joseph Lebiedz and Dale Phillips were not served and did not appear in this action, and on September 10, 1992 the claims against them were dismissed by this Court without prejudice, pursuant to General Rule 30. Only Counts Four, Five and Six of the Amended Complaint asserted claims against the Fund. By Order entered February 24, 1993, this Court granted the Fund's motion for summary judgment on Counts Four and Five alleging state law claims held to be pre-empted by ERISA; and denied its motion for summary judgment on Count Six, the ERISA claim. Accordingly, the case proceeded to trial only on plaintiff's ERISA claim against the Fund.

 FINDINGS OF FACT

 The Fund administers an employee benefit plan ("the Plan") which is a self-insured multi-employer welfare plan within the meaning of Sections 1002(1) and 1002(37a) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. (1988). The Plan by its terms provides certain medical expense benefits. (P-1.) The insured, Joseph Lebiedz, was a participant in the Plan. *fn2" Plaintiff is a New Jersey corporation with a registered address in Toms River, New Jersey. Plaintiff provided certain nursing services to the insured at his home beginning in July, 1989, and defendant declined the claim for payment for those services on the ground that they were not covered under the Plan. Most of the relevant facts are not in dispute. Where material issues of fact do exist, they are identified and ruled upon in this opinion.

 The Plan provides for Major Medical Expense Benefits *fn3" for certain eligible expenses, defined as follows: "The eligible expenses are the reasonable charges incurred for the following services and supplies which are ordered by a physician and are necessary for the treatment of injuries and sicknesses." Listed "Other Eligible Expenses . . . In or Out of the Hospital" include:

 "Nursing Care - Private duty nursing by a registered graduate nurse subject to approval by the Fund's Medical Consultant." (P-1, pp. 22-23.)

 The insured was a 55-year old man in July, 1989, who was diagnosed by his treating physician, Dr. Kenneth Ordene, as having insulin-dependant diabetes mellitus, severe anemia and high blood pressure. (P-7, P-5.) He lived in Jackson, New Jersey with a companion named Katherine Lash. He had a "grandniece" named Dale Phillips and a "niece" named Pola. (D-3.) He had been hospitalized for approximately one week in late July, 1989, and was being discharged on July 25, 1989.

 On July 25, 1989, the day before his scheduled discharge, Dale Phillips contacted plaintiff by telephone, spoke to plaintiff's client service representative Sharon Rankin, and ordered the services of a registered nurse ("RN") or licensed practical nurse ("LPN") to be provided to him at home. (PTO p. 2 P 7, D-3; Rankin testimony.) *fn4" Ms. Phillips described his condition to Ms. Rankin, who recorded it on the Client Order form (D-3), as including the following: Diagnosis: "Diabetic - Dysf. kidneys - TIA's" *fn5" Condition: Activity: "Up with max. assist." Mental: "Confused at times." Bladder/bowel control: "Partial". Vision: "Poor." Special Nursing and Patient Related Duties: "Goes into diabetic coma very easily. Gluco-scan at home." Ms. Phillips described his medications, which Ms. Rankin recorded. Ms. Phillips also requested, and Ms. Rankin recorded on the Client Order in pencil, "Good nurses notes for ins. purposes." Ms. Rankin quoted Ms. Phillips the plaintiff's hourly rates as "RN $ 32.50 and "LPN $ 27.50". (D-3.) The billing party, identified by Ms. Phillips, was "Heavy General Laborers Fund . . . Beverly (contact)." After that initial telephone contact by Ms. Phillips, Ms. Rankin gave the Client Order to Deborah Jack, plaintiff's senior client service representative, whose job it was to do the "insurance verification." (Rankin testimony.)

 
Are there limits on visits? "Subject to review".
 
What is considered a visit? "8[degree]"
 
Are RN's covered? "Yes".
 
Are LPN's covered? "No".
 
Home Health Aides/Nursing Aides? "No".
 
Can LPN's be used in place of RN's if under supervision of an RN? "No"
 
Are the following items necessary with each bill?
 
Claim form ("X") Dr. Cert. ("X") Nurse Notes ("X").
 
Additional Notes:
 
"Approved for two weeks 24[degree] coverage.
 
Temporary approval given by Beverly. Deanne
 
Marques on vacation til 6/14." [sic]

 Beverly Cesar, who was a claims examiner for the Fund at that time, testified that she recalled receiving a telephone call from a woman named Dale on July 26, 1989 inquiring about nursing care benefits for the insured, saying that they really needed nursing services for him. Ms. Cesar explained to Dale that Mr. O'Neill, Assistant General Manager, was out ill, and her supervisor, Ms. Marques, the Claims Manager, was on vacation, and that they would be the ones to answer her questions, but Dale's urging Ms. Cesar said she would try to get them some information. She got a printout and verified the insured's participation in the Fund, as well as the fact that at his age (over ...


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