United States District Court, S.D. Ohio, Eastern Division
CRAIG A. WETTERMAN, Plaintiff,
SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.
CHELSEY M. VASCURA MAGISTRATE JUDGE
OPINION AND ORDER
D. MORRISON UNITED STATES DISTRICT JUDGE
matter is before the Court upon Defendants' Motion to
Dismiss (ECF No. 5), Plaintiff's Response in Opposition
to Defendants' Motion to Dismiss (ECF No. 6), and
Defendants' Reply in Support of their Motion to Dismiss
(ECF No. 7). For the reasons that follow, the Court
GRANTS Defendants' Motion and
DISMISSES Plaintiff's Complaint.
October 19, 2008, Barbara Wetterman was involved in a motor
vehicle collision caused by the negligence of Charles Wolfe.
(Complaint, ¶¶ 3, 22-24, ECF No. 1). Following the
accident, Ms. Wetterman was treated for serious injuries at
Grant Medical Center, but she died on November 4, 2008.
(Id. ¶¶ 26, 28). Ms. Wetterman was
survived by two adult children: Craig Wetterman
(“Plaintiff”) and Lana Schurb. (Id.
¶¶ 28, 30).
January 13, 2009, Union County Probate Court (“Probate
Court”) designated Plaintiff as the executor for Ms.
Wetterman's estate. (Id. ¶ 31). On January
20, 2009,  the Probate Court authorized Plaintiff to
enter into a contract for legal services with attorney Frank
Ray to “investigate, negotiate and, if necessary,
prosecute the wrongful death claim of the estate” of
Ms. Wetterman. (Id. ¶ 32).
15, 2009, the Probate Court approved Ms. Wetterman's
estate's acceptance of a wrongful death settlement and
life insurance payout in the amount of $87, 500 (Id.
¶ 47). The settlement and payout included: $12, 500 from
Mr. Wolfe's bodily injury coverage through Permanent
General Assurance Company (“Permanent”), $100,
000 from Ms. Wetterman's uninsured/underinsured motorist
(“UM/UIM”) coverage through State Automobile
Mutual Insurance Company (“State Auto”)-set off
against Permanent's payout-and a $25, 000 life insurance
payout from State Auto. (Id. ¶¶ 34-35,
41). Included in the application for settlement to the
Probate Court was Mr. Ray's statement that “Ms.
Wetterman did not exhibit provable evidence of conscious pain
and suffering from her injuries. Since evidence of pain and
suffering by the decedent as a result of the trauma is
speculative based on provable evidence, the estate has not
assessed any damages to a survivorship claim arising from the
fatal collision.” (Id. ¶ 46). Pending
resolution of any liens asserted by Medicare under the
Medicare Secondary Payer Act (“MSP Act”), Mr. Ray
deposited the settlement check from Permanent and the life
insurance payment from State Auto in his law firm's trust
account and State Auto continued to maintain possession of
the UM/UIM funds. (Id. ¶¶ 48-49).
October 30, 2009, Mr. Ray notified the Medicare Secondary
Payer Recovery Contractor (“MSPRC”) and Medicare
that Plaintiff had been appointed as the executor of Ms.
Wetterman's estate and requested an itemized breakdown of
medical costs paid by Medicare for treatment of Ms.
Wetterman's injuries. (Id. ¶ 50). On
January 26, 2010, Mr. Ray followed up with an enclosed
consent form signed by Plaintiff. (Id. ¶ 51).
On July 22, 2010, MSPRC responded that Medicare had issued
$139, 832.31 in conditional payments for Ms. Wetterman's
medical care, notified Mr. Ray that a formal demand letter
would be forthcoming, and demanded a detailed report from
Plaintiff regarding sources and amounts of insurance coverage
within 30 days. (Id. ¶ 52). On August 17, 2010,
Mr. Ray provided MSPRC with information regarding the
wrongful death settlement. (Id. ¶ 53). Mr. Ray
received a letter on September 11, 2011 from MSPRC, which
included Medicare's demand notice and its asserted lien
of $106, 096.87 for the cost of medical care relating to Ms.
Wetterman's estate's liability recovery.
(Id. ¶¶ 62-63). The letter also notified
Mr. Ray that Medicare had begun assessing interest from
August 11, 2011. (Id. ¶ 63).
October 10, 2011, Plaintiff mailed MSPRC a “Request for
Waiver and Notice of Appeal, ” which “described
Plaintiff's exceptions to MSPRC's findings that
produced Medicare's demanded reimbursement against Mrs.
Wetterman's estate's wrongful death settlements and
the life insurance payout.” (Id. ¶¶
64, 73). Plaintiff also alleges that Mr. Ray enclosed two
checks with the letter to MSPRC: a check issued by State Auto
for $87, 500.00 made jointly payable to MSPRC and/or Ms.
Wetterman's estate and a check from Mr. Ray's law
firm's trust account made jointly payable to Plaintiff
and Medicare for $18, 596.87, both endorsed by Plaintiff.
(Id. ¶ 76). Plaintiff did so to “defray
Medicare's ongoing assessment of interests against Ms.
Wetterman's estate for nonpayment of MSPRC's final
determination of Medicare's demanded
reimbursement” while he expressly retained the right
to contest Medicare's claim. (Id. ¶ 78).
November 21, 2011, Plaintiff again requested waiver of
Medicare's demanded reimbursement by filling out and
submitting the appropriate form. (Id. ¶ 82).
Specifically, Plaintiff argued that because the settlement
proceeds from the tort recovery were based on a wrongful
death action with no survivorship claim, Medicare did not
have the right to recover against the settlement pursuant to
Ohio law. (Id. ¶¶ 68-71). On December 3,
2011, MSPRC advised Plaintiff that his internal
administrative appeal of Medicare's initial decision was
denied. (Id. ¶ 83). On December 5, 2011, MSPRC
also advised Plaintiff that the estate owed a past-due debt
of $92, 075.30. (Id. ¶ 84).
December 29, 2011, Plaintiff appealed Medicare's internal
administrative review. (Id. ¶ 88). That appeal
was rejected by MSPRC on February 6, 2012. (Id.
¶ 91). The initial decision was affirmed again on May
16, 2012 upon Plaintiff's request for reconsideration.
(Id. ¶ 92). On July 3, 2012, Plaintiff appealed
to an Administrative Law Judge (“ALJ”).
(Id. ¶ 93). After conducting an oral hearing by
telephone, ALJ Jane Van Duzer issued a written decision on
October 28, 2014 ruling that the life insurance payment was
not subject to Medicare's recovery under the MSP Act but
upholding Medicare's prior internal decisions, which
determined that Medicare was entitled to recover
reimbursement under the MSP Act from Plaintiff against the
wrongful death settlements. (Id. ¶ 97).
Plaintiff appealed the ALJ's decision to the Medicare
Appeals Council on December 19, 2014, assigning error to
Medicare's recovery reimbursement from the wrongful death
settlement. (Id. ¶ 98). Plaintiff did not make
an escalation request regarding the Council's review of
the ALJ's decision.
on the ALJ's decision, Coordination of Benefit and
Recovery Systems (“COB&R”)-formerly
MSPRC-notified Plaintiff of the revised amount due to
Medicare as $81, 096.87 in principal and $24, 921.55 in
interest. (Id. ¶ 99). Accounting only for the
$18, 596.87 check as received from Plaintiff, it became clear
to Mr. Ray that MSPRC had either lost or ignored the check
issued by State Auto that he sent on October 10, 2011.
(Id. ¶ 102). State Auto confirmed that the
check issued for $87, 500.00 to MSPRC had not been cashed.
(Id. ¶ 101). As a result, State Auto reissued a
replacement check on December 24, 2015, which Mr. Ray sent to
COB&R and Medicare, along with a letter explaining what
he believed had occurred, and a $514.91 check issued from his
former law firm's trust account to cover accrued
interest. (Id. ¶ 104). Upon satisfying
Plaintiff's outstanding Medicare balance of $106, 611.78,
Mr. Ray sent Medicare a letter on January 7, 2015 demanding a
refund of $24, 921.55 as interest “improvidently
assessed” to Plaintiff based on his belief that
Medicare had lost or ignored State Auto's originally
issued check. (Id. ¶ 107). Medicare did not
respond. (Id. ¶ 109).
Mr. Ray requested that the Medicare Appeals Council
supplement the record with certified entries from the Probate
Court designating Ms. Wetterman's estate's
settlements as “provable only as a wrongful death
claim, ” as he sought redress for Medicare's
“improvidently assessed” interest through a
second assignment of error. (Id. ¶¶
111-12). Medicare never responded to Plaintiff's
requests. (Id. ¶ 113). On August 25, 2018, a
representative from the Medicare Appeals Council confirmed
receipt of Plaintiff's request for review of the
ALJ's decision. (Id. ¶ 115). To date, the
Medicare Appeals Council has not issued a decision on
Plaintiff's appeal. (Id. ¶ 116).
January 31, 2018, Plaintiff filed a complaint seeking writs
of mandamus under 28 U.S.C. § 1361 that require Alex M.
Azar II,  in his role as Secretary of the United
States Department of Health and Human Services
(“HHS”), and Constance B. Tobias, in her role as
Chair of the Departmental Appeals Board of HHS (collectively
“Defendants”) to do the following: (1) require
the Medicare Appeals Council to complete its assignment
within the administrative appeals process; (2) refund $24,
921.55 plus interest to Plaintiff as erroneously assessed by
Medicare; (3) pay Plaintiff's attorneys fees for legal
services in bringing this case; and (4) reimburse
Plaintiff's “deposit” of Mrs. Wetterman's
estate's funds with Medicare of $106, 671.78 plus
interest. (Id. ¶¶ 118-67). Plaintiff also