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Sorkness v. United States

United States District Court, District of Columbia

September 17, 2019

STEVEN MARVIN SORKNESS, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         Congress created the Servicemembers Group Life Insurance Traumatic Injury Protection Program-often referred to as the “TSGLI” Program-in 2005 to provide monetary assistance to servicemembers who suffer traumatic injuries. See Pub. L. No. 109-13, § 1032(a)(2), 119 Stat. 231, 257 (2005). Under this Program, servicemembers are “automatically . . . insured for traumatic injur[ies], ” and any member who suffers a “qualifying loss” is entitled to payment of between $25, 000 and $100, 000, depending on “the severity of the qualifying loss.” 38 U.S.C. § 1980A(a) & (d). The statute and implementing regulations, in turn, define qualifying losses as including, among other things, a traumatic injury other than a traumatic brain injury resulting in the inability of the servicemember to perform at least two Activities of Daily Living (“ADLs”) for at least thirty consecutive days. Id. at § 1980A(b); 38 C.F.R. § 9.20(e)(6) & (f)(20). If the servicemember's inability to perform at least two ADLs persists longer than 30 consecutive days under this standard, the size of the award increases from $25, 000 up to $100, 000-in increments of $25, 000 for each successive 30-day period up to a total of 120 days. 38 C.F.R. § 9.20(f)(20).

         Plaintiff Steven Marvin Sorkness sustained significant injuries in an (off-duty) motorcycle accident while he was a member of the U.S. Army. See Dkt. 1. He applied for, but was denied, TSGLI benefits and, after exhausting his rights to administrative appeal, he brought this action seeking judicial review of the decision of the Army Board for the Correction of Military Records (“ABCMR”) denying his claim. See Id. Before Defendant filed a responsive pleading, however, the parties stipulated to stay the action and to a voluntary remand to the ABCMR, Dkt. 6, and the Court agreed, Minute Order (Jan. 8, 2018). On remand, the ABCMR once again concluded that Sorkness is not entitled to TSGLI benefits because hr had failed to meet “his burden of proving by a preponderance of the evidence that he [had] incurred the loss of [two] or more ADLs for any period of 30 consecutive days.” AR 507.

         In light of that decision, the Court lifted the stay and set a schedule for Defendant to certify the administrative record and for the parties to file cross-motions for summary judgment. Minute Orders (June 19, 2018). Those motions, Dkt. 11; Dkt. 12, are now before the Court for decision. For the following reasons, the Court will grant Defendant's motion for summary judgment and will deny Plaintiff's cross-motion.

         I. BACKGROUND

         On June 18, 2009, Plaintiff was found in a ditch beside Georgia Highway 30 following a motorcycle accident. AR 14-15. He apparently lost consciousness after the crash and could not recall anything about the accident when he was found. Id. The Georgia State Patrol Trooper who responded to the accident “stated that he suspected that another motorist or crossing wildlife may have caused [Plaintiff] to lose control of his motorcycle.” AR 495. Plaintiff's injuries included “a subarachnoid hemorrhage (bleeding inside the brain), facial abrasions, [and] bilateral hip, neck, back and shoulder injuries.” Id. A CT scan revealed a non-displaced right sacral fracture, and Plaintiff was limited in his ability to “toe-touch” or bear weight for six to eight weeks. AR 26. Plaintiff continued to receive treatment over the next several months. AR 44- 50. During that time, he underwent cervical discectomy and fusion surgery in January 2010. Id.

         On October 20, 2012, Sorkness applied for TSGLI benefits for the injuries he suffered as a result of the crash. AR 1-13. Under the TSGLI Program, servicemembers who suffer qualifying traumatic injuries during-although not necessarily connected to-their service are entitled to compensation ranging from $25, 000 to $100, 000. 38 U.S.C. § 1980A; 38 C.F.R. § 9.20. The statute prescribes certain qualifying conditions and delegates authority to the Secretary of Veterans Affairs to further define “qualifying losses.” 38 U.S.C. § 1980A(b). Of relevance here, the implementing regulations specify that a servicemember who suffers a “[t]raumatic injury, other than [a] traumatic brain injury, ” that prevents the servicemember from performing at least two Activities of Daily Living for at least 30 consecutive days is entitled to payment of $25, 000. 38 C.F.R. § 9.20(f)(20). The amount of the payment then escalates in increments of $25, 000 if the servicemember is unable to perform at least two ADLs for at least 60, 90, and 120 consecutive days-up to a maximum payment of $100, 000. Id. “The term ‘inability to carry out the activities of daily living'” is defined to “mean[] the inability to independently perform two or more of the following six functions: (i) [b]athing[, ] (ii) [c]ontinence[, ] (iii) [d]ressing[, ] (iv) [e]ating[, ] (v) [t]oileting[, ] [and] (vi) transferring.” 38 U.S.C. § 1980A(b)(2)(D) (quoting id. § 1980A(b)(1)(H)); see also 38 C.F.R. § 9.20(e)(6)(vi).

         Plaintiff claimed that his injuries from the June 2009 motorcycle crash caused 120 days of continuous inability to perform two ADLs, specifically bathing and dressing. AR 1-11. In support of Plaintiff's claim, Dr. Dennis Hopkins, a reviewing physician, certified he had “not observed the patient's loss, but . . . had reviewed [his] medical records.” AR 13. Plaintiff's claim was denied by a letter dated February 6, 2013. AR 59. The denial letter explained that, to qualify for TSGLI benefits for a traumatic injury (other than a traumatic brain injury) a claimant must demonstrate that he has “been unable to independently perform at least two [ADLs] for at least 30 consecutive days, ” and it concluded that the “medical documentation” submitted in support of Plaintiff's claim “did not support [his] inability to perform two or more ADLs for at least 30 consecutive days.” AR 59.

         Plaintiff sought reconsideration of that decision on April 25, 2013 and provided further details supporting his claim. AR 76-78. Among other things, Plaintiff submitted statements from two friends. According to the first friend, BB, she and others had helped Plaintiff with ADLs following the accident. AR 83-84. She explained, in particular, that Plaintiff needed help “moving in and out of bed, eating, dressing and bathing;” he needed “someone to drive him to and from doctor appointments;” and, due to complications resulting from his surgery, Plaintiff “needed help with just about everything, eating, dressing, changing bandages, bathing, in and out of bed and medication.” Id. The second friend, PS, offered a similar assessment. He stated that, while Plaintiff was in the hospital, he needed constant care and that, after he was released, Plaintiff's friends continued to assist with his meals and with bathing and driving him to the pharmacy and doctor appointments. AR 85-86. On July 12, 2013, however, the U.S. Army Human Resources Command, Special Compensation Branch, denied Plaintiff's request for reconsideration. AR 221-22. The denial explained: “The medical documentation you submitted did not indicate that your injuries rendered you incapable of performing the ADLs of bathing and dressing that are covered by TSGLI standards for 30 consecutive days or greater.” AR 221 (emphasis added).

         Plaintiff appealed that decision on September 13, 2013, AR 236-47, but the Army denied his appeal, AR 262. That decision once again found that Plaintiff had failed to provide medical documentation sufficient to show that Plaintiff's injuries rendered him “incapable of performing the ADLs of bathing, continence, dressing, eating, toileting, or transferring . . . for 30 consecutive days or greater.” AR 262 (emphasis added). This time the Army further explained that, if the claimant “is able to perform the activity by the use of accommodating equipment/adaptive measures (such as a cane, crutches, wheelchair, etc.), then the [claimant] is considered able to independently perform the activity.” Id.

         Plaintiff then sought review before the ABCMR. After reviewing the factual and procedural background, AR 447-51, the ABCMR determined that “[t]he evidence presented [did] not demonstrate the existence of a probable error or injustice, ” and it concluded that “the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned, ” AR 446.

         Having exhausted his administrative options, Plaintiff then filed suit in this Court pursuant to 38 U.S.C. § 5107 (“The district courts of the United States shall have original jurisdiction of any civil action or claim against the Untied States founded upon this subchapter.”). Before the Defendant filed a responsive pleading, however, the parties stipulated to the stay and to a voluntary remand of the action to permit the ABCMR to conduct “additional administrative proceedings.” Minute Order (Jan. 1, 2018).

         On remand, the ABCMR again denied Plaintiff's claim, explaining that “[i]n light of the evidence [in the] record, the applicant has not met his burden of proving by a preponderance of the evidence that he incurred the loss of 2 or more ADLs for any period of 30 consecutive days.” AR 507. In reaching that conclusion, the ABCMR credited the evaluation of Plaintiff's medical records provided in a detailed medical advisory opinion prepared by Colonel Roman Bilynsky, the Army Review Board Agency's Senior Medical Advisor. AR 485. According to that assessment, Plaintiff suffered “limited impairment or impact on [his] ability to perform ADLs, and [he] was certainly not impaired or impacted enough to be unable to perform 2 or more ADLs for 15, 30, 60, 90, 120 or more days.” AR 499. Moreover, although Plaintiff did suffer a hairline fracture to this “right sacral alae, ” he suffered no “cognitive or intellectual impairment, ” and, according to Col. Bilynsky, “[t]he medical records note no significant difficulties with dressing, bathing, eating, continence, toileting, or transferring.” Id. In sum, the evidence demonstrated that by July 24, 2009, Plaintiff was sufficiently recovered to return to duty-and thus, presumably, was not unable to perform two ADLs-and that, although Plaintiff suffered lower back pain and impairment of his mobility from June 18 to July 24, 2009, he was not so debilitated that he was unable to perform two ADLs for 30 consecutive days during that period. AR 505.

         The ABCMR also found Plaintiff's evidence to the contrary insufficient. His two lay witnesses, BB and PS, failed to identify two or more ADLs that Plaintiff was unable to perform for 30 consecutive days as a result of the motorcycle accident. AR 506-07. Although BB described difficulties Plaintiff encountered after undergoing neck surgery, the ABCMR noted that the surgery was “performed to address degenerative problems in his neck” and that “a degenerative condition is virtually the definitional opposite of one incurred from a traumatic force.” AR 506. Finally, the ABCMR found that “[t]he opinion rendered by [Plaintiff's] certifying official, ” Dr. Hopkins, was not based on Dr. Hopkins's examination of Plaintiff-but, rather, on his review of ...


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