Fernandito Rivera v. State Farm Fire & Casualty Company

IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
FERNANDITO RIVERA )
)
Plaintiff, )
)
v. ) CPU4-14-003168
)
)
STATE FARM FIRE AND )
CASUALTY COMPANY, a foreign )
corporation, )
)
Defendant. )
Submitted: September 16, 2015
Decided: October 20, 2015
Eileen M. McGivney, Esquire Patrick G. Rock, Esquire
Weik, Nitsche, Dougherty & Galbraith Heckler & Frabizzio
305 N. Union Street, Second Floor 800 Delaware Avenue, Suite 200
PO. Box 2324 PO. Box 128
Wilmington, DE 19899 Wilmington, DE 19899
Attorney for Plaintifl’ Attorney for Defendant
DECISION AFTER TRIAL
The instant matter is a breach of contract action for failure to pay personal injury
protection (“PIP”) benefits. On September 1, 2015, the Court held trial, and requested that the
parties submit written closing summations. This is the Court’s Memorandum Opinion and Order
after consideration of the pleadings, the oral and documentary evidence submitted at trial, the
arguments of the parties, and the applicable law. For the following reasons, the Court enters
judgment in favor of Defendant.
1. Procedural Background
On October 29, 2014, Fernandito Rivera (“Plaintiff”) filed a Complaint against State
Farm Fire and Casualty Company (“State Farm”) alleging that State Farm breached the parties’
insurance agreement by failing to pay for Plaintiff’s medical expenses after he was involved in a
motor vehicle accident. As a result of State Farm’s breach, Plaintiff sought damages in the
amount of $15,721.00 plus interest and costs.
State Farm filed an Answer on January 19, 2015, denying Plaintiff’s allegations in the
Complaint and asserting multiple affirmative defenses. Specifically, State Farm averred, inter
alia, that Plaintiff’s injuries were pre-existing and were not a result of the accident, and that
Plaintiff is unable to recover an amount greater than the $15,000.00 policy PIP limit.
On September 1, 2015, the Court held trial. The Court heard testimony from Plaintiff and
received evidence from both parties.1 At the conclusion of trial, the Court ordered the parties to
submit their closing arguments in the form of a written letter. Accordingly, on September 2,
2015 , the Court issues a briefing schedule. The parties have submitted their written arguments
and the following is the Court’s decision on the merits of those arguments.
II. The Facts
Plaintiff was the only witness to provide live testimony at trial. In addition to Plaintiff’s
testimony, both parties proffered medical expert reports, as well as multiple medical records for
the Court to consider.2 After carefully reviewing the documentary evidence and assessing
Plaintiff’s live testimony, thc Court finds the facts as follows:
Plaintiff testified that he was involved in a motor vehicle accident on March 6, 2013 after
another motorist struck the left side of his vehicle, and that, as a result of the accident, he
_ ——_-°r-
] Specifically, the Cour: received into evidence Plaintiff’s Exhibit 1, which was a binder of documents
that included expert medical reports, medical records, and outstanding medical bills. The Court also
received into evidence State Farm’s Exhibit 1, which was a binder of documents. that included an expert
re as well as State Farm’ngf" 2, 3, 5,:;'__' "
:jcal reports from Dr. Jamesifiéfififififigfiin and Dr-fimifis Downing, both of
whom examlned and treated Plaintiff throughout the course of 2013. State Farm proffered a medical
expert report from Dr. John B. Townsend, who evaluated Plaintiff’s patient history, including the
treatment provided by Drs. McGlynn and Downing.
2
experienced pain in his right shoulder, and the left side of his body, including his left hip, and
lower left back.
On April 13, 2013, Plaintiff sought treatment for the first time, and went to the St. Francis
Hospital Emergency Room, complaining of moderate pain in his lower back.3 According to the
Emergency Provider Record for this Visit, Plaintiff had indicated to the medical provider that he
had a history of chronic back pain, and that the pain that he was experiencing at that time was
similar to prior back pains.4 However, the Emergency Nursing Record for this date also
indicates that Plaintiff was not recently injured, and that he did not have any previous back
inj ury.5 Ultimately, Plaintiff received an injection of ketorolac tromethamine (Toradol) and a
prescription for an anti-inflammatory agent, both for pain control, and was referred to Dr.
Khuram R. Ghumman, who works in the St. Francis Family Practice.
On April 24, 2013, Plaintiff saw Dr. James McGlynn in the St. Francis Office of Premier
Orthopaedic & Sports Medicine, Orthopaedic Associates Division, complaining of moderate to
severe left hip pain that was occurring intermittently and was fluctuating.6 Plaintiff described the
pain to Dr. McGlynn as aching, piercing, and throbbing, and, for the first time, explained that the
onset of the pain was the March 6, 2013 motor vehicle accident. Dr. McGlynn’s assessment
indicated that Plaintiff suffered a lower back strain as a rcsult of the March 6, 2013 car accident.
_._— __ _ —:—'- i
3 Notably, the medical records for this visit indicate that Plaintiff was complaining of lower back pain, in
general, without any specific reference to either side of his back. In fact, on all diagrams of the human
body (which were used to identify the location of pain), the medical provider circled the entire lower
back, as opposed to a specific side.
4 Deft. Exh. 3.
5 Specifically, under _‘_‘_Pa_st Medical I-D(,” the medical provider circled “negative,” as opposed to circling
_
' n toifiifig, ' .- Win, mfiimfiifi ' '- fifider pain that he had been
__ _ _ _ __ r . ‘ compé... _ I“ _
experiencing for the past'ye'ar. According to Dr. McGlynn’s notes, the right shoulder pain was
aggravated by lifting and movement, and was not caused by any particular injury. Plaintiff had been
under Dr. McGlynn’s care for his right shoulder pain, and was last seen by Dr. McGlynn on October 10,
2012.
Ultimately, Dr. McGlynn prescribed the Plaintiff Motrin, suggested that he continue taking his
other pain relievers, recommended physical therapy, and instructed Plaintiff to follow up with
him if the pain was not improving or if it was worsening.
Plaintiff then followed up with Dr. Ghumman on May 8, 2013. At that Visit, Plaintiff
described his pain and indicated that initially, after the March 6th accident, he felt “okay” but
explained that after a few days, his pain worsened. Ultimately, Dr. Ghumman referred Plaintiff
to physical therapy, prescribed Tylenol, and instructed Plaintiff to follow up with him in one
moth or as needed.7
Plaintiff underwent physical therapy treatment from May 8, 2013 until July 5, 2013.8
Although his lower back active range of motion had improved, ultimately, Plaintiff’s pain level
had not changed.
On July 10, 2013, Plaintiff returned to Dr. McGlynn’s office for further evaluation.
Plaintiff complained of moderate to severe bilateral hip pain that he claimed was constant and
worsening over time. In his assessment, Dr. McGlynn indicated that the only significant change
in Plaintiff’s physical exam was that his sacroiliac (SI) joint was tender on the left side. As a
result of that tenderness, Dr. McGlynn administered a corticosteroid injection into Plaintiff’s left
SI joint, and recommendcd that Plaintiff continue with physical therapy, and obtain an MRI of
his lower back.
Plaintiff returned to Dr. McGlynn’s office for the third and final time on August 14,
2013, complaining of throbbing bilateral hip pain that radiated to his legs, as well as sharp pain
in his lower back. At the time of the visit, Plaintiff explained that the left hip SI joint injection
that Dr. McGlynn administered on July 10, 2013 gave him some transient relief, but maintained
__———._.—._—___._____.
7 Plaintiff submitted an invoice for Dr. Ghumman’s exmaination, which cost $226.00, to State Farm,
however, State Farm {textile-d Plaintiff-immifiga: rm this visit.
8 During this"timag}*lfiiiifi'if'§mdagrisrzzaen'glgipfliflfilnents with his physical therapist.
4
that the pain returned within a couple of days. Dr. McGlynn reviewed the MRI of Plaintiff’s
lower back, which showed some minor degenerative changes.9 Ultimately, Dr. McGlynn
referred Plaintiff to Dr. James Downing for pain management.
On September 23, 2014, Plaintiff saw Dr. Downing at Interventional Spine Pain
Consultants, P.A., seeking pain relief for his lower left back. After examining Plaintiff, Dr.
Downing attributed his back pain to the March 6th accident “superimposed upon some
degenerative changes from years of hard work.”10 Dr. Downing renewed Plaintiff’s prescription
for Tylenol, and recommended that Plaintiff proceed with left-sided lumbar injections for pain
relief. Dr. Downing eventually performed the lumbar injections on October 8, 2013 and October
22, 2013. Plaintiff followed up with Dr. Downing almost two months later, on December 16,
2013, explaining that he was experiencing almost filll resolution of his lower back pain following
his last injection, and described his pain as very mild discomfort. On February 12, 2014,
Plaintiff followed up with Dr. Downing once more, and again complained of only very minimal
discomfort in his lower back.
During State Farm’s cross-examination of Plaintiff, State Farm inquired about Plaintiff s
medical history, namely, his previous complaints of lower back pain and shoulder discomfort
after being injured in a motor vchicle accident on April 17, 2009. As a result of the April 2009
accident, Plaintiff sustained an injury to his entire lower back, and subsequently experienced
pain in his lower back that radiated down to his left thigh.11 Plaintiff followed up with Dr.
_ — — — 1.5K
9 Dr. Anh Dam, a neuroradiologist from Diagnostic Imaging Associates, had examined Plaintiff on July
17, 2013, after an MRI.
1° P1.Exh. 1 at'igagtrg-ilo.
1] On April 18, 2009, Plaintiff sought medical care at the St. Francis Hospital Emergency Room. In both
the Emergency Nursing Record and the Emergency Provider Record, the medical provider indicated that
Plaintiff complained of pain in his entire lower back. Notably, on the diagram of the human body (which
was used to identify the location of pain), the medical provider circled the entire lower back, as opposed
to a specific side. See Deft. Exh. l at Tab 3.
Domingo C. Singson following the April 2009 accident, and complained of lower back pain, and
a shooting pain in his right leg. On May 26, 2009, Plaintiff had an MRI taken of his lower back,
which revealed mild midline disc bulging on the left side of his lower back.12 Throughout the
course of 2009, Plaintiff underwent physical therapy and chiropractic treatment, and received
lumbar injections. However, Plaintiff maintained that such treatment only alleviated his pain
temporarily, and complained of pain in his lower right back. On January 6, 2010, after receiving
lumbar injections, Plaintiff followed up with Dr, Bruce Rudin at First State Orthopaedics. Dr.
Rudin spoke with Plaintiff about completing a facet joint nerve rhizotomy (which is an injection
that would disable the nerve that goes to the joint in the spine) in order to completely alleviate
his back pain, however, Plaintiff indicated that he wanted to avoid this procedure if possible.13
Dr. Rudin noted that, due to Plaintiff’s injury from the April 2009 accident, Plaintiff developed
3,14
“symptomatic facet disease. Plaintiff continued to receive treatment for his back pain
throughout 2010 and 2011, however, he still complained of experiencing chronic back pain.
At the conclusion of trial, Plaintiff indicated that he was no longer seeking damages in
the amount of $15,721.00, as requested in the Complaint, but rather, he was seeking $9,548.80,
which represents the remaining amount of PIP benefits available to him under his policy.
111. Parties’ Contentions
Plaintiff contends that State Farm breached the parties’ insurance agreement by failing to
pay for Plaintiff‘s medical expenses after the March 2013 accident. In support of his contention,
12 Specifically, Dr. Singson’s assessment indicated that the MRI revealed “mild midline broad based disc
bulging L4-L5 and to a lesser degree at L3-L4 and LS-Sl” as well as “[m]ild sic bulging toward left
neuroforamen at L2-L3 .”
13 Although neither party nor medical expert explained this procedure, the Court takes judicial notice of
this procedure and what it entails.
14 In 201 1, Dr. Stephen Beneck, a medical provider from Delaware Back Pain & Sports Rehabilitation
Center who treated Plaintiff, also concluded that Plaintiff’s chronic lower back pain was likely due to
symptomatic lumbar degenerative disc disease. See Deft. Exh. l at Tab 1 1.
6
Plaintiff relies on expert medical reports from Dr. McGlynn and Dr. Downing. In Dr.
Downing’s report, he concluded that Plaintiff developed persistent left-sided low back pain as a
result of the March 2013 accident. Dr. Downing opined, with a reasonable degree of medical
probability, that the care that he provided Plaintiff was reasonable, necessary, and causally
related to the March 2013 accident, noting that, as of February 2014, which was approximately
one year after the March 2013 accident, Plaintiff had shown significant improvement and had
only mild persistent symptoms. In Dr. McGlynn’s report, he also concluded that his lower back
complaints and treatment sought for those complaints were related to the March 2013 accident.
Dr. McGlynn noted, however, that Plaintiff had an extensive history of complex treatment for his
lower back pain. Dr. McGlynn further noted that he “had the opportunity to review these records
[pertaining to his lower back pain history] and as a result, the motor vehicle accident of
03/06/2013 and its injuries could be considered nothing more than an aggravation of his
3315
preexisting injury. In his concluding paragraph, Dr. McGlynn stated that the treatment
provided to Plaintiff by Dr. Downing enabled Plaintiff to be in a better condition now than he
was prior to the March 2012 accident.
State Farm contends that it is not in breach of contract, claiming that it properly denied
Plaintiff’s claim for medical expenscs and arguing that that Plaintist injuries were pre-existing
and were not a result of the March 6, 2013 accident. In support of this contention, State Farm
proffered an expert medical report from Dr. John B. Townsend, III. After reviewing Plaintiff s
medical history, Dr. Townsend concluded that Plaintiff’s complaints of pain in his left hip are
related to the March 2013 accident, and could be treated with a a nonsteroidal anti-inflammatory
agent if he has ongoing hip complaints. On the other hand, Dr. Townsend also believed that
Plaintiff’s pain in his shoulders, lower back, and right leg were related to pre-existing injuries
‘5 P1.Exh. 1 at Tab 4.
and not to the March 2013 accident. Dr. Townsend noted that Plaintiff had a long history of pre-
existing low back complaints, and indicated that in his opinion and with a reasonable degree of
medical probability, the lumbar spine injections administered by Dr. Downing was unrelated to
the March 2013 accident.
IV. The Law
Section 2118(a)(2) of Title 21 of the Delaware Code requires insurance carriers to
compensate its insured for “reasonable and necessary” medical expenses that relate to a motor
vehicle accident for which the insured’s PIP policy covers.16 “The statutory standard is
reasonable and necessary, which includes reasonable medical probability.”l7 In order to satisfy
this statutory standard, a plaintiff must present medical expert testimony that establishes “a
causal link between the accident and the insured’s injuries.”18 Thus, a plaintiff seeking
reimbursement from an insurance carrier under the PIP statute “bears the burden of proof to
establish by a preponderance of the evidence that the medical services received were necessary
and that the bills or charges for such services were reasonable?”19
In determining whether the plaintiff has met this burden, the Court, which serves as the
trier of fact in a non-jury trial, has the sole responsibility in determining the credibility of
IliStlafite Farm Mut. Auto. Ins. Co. v. State Dep't of Natural Res. & Envtl. Control, 2011 WL 2178676, at
May 31,2011).
'3? Dennis v. State Farm Mat. Auto. Ins. Co, 2008 WL 4409436, at *2 (Del. Super. Feb. 13,
20 .8. .._.
18 g,"
l9 Ja-,§ilsar_€
_. -; WL '17" (De1.:-i?:riff-*r. 1. May 28, 2015) (quoting Watson
v. Metropolitan Property a d Cas. Ins. Co., 2003 WL 22290906, at *5 (Del. Super. Ct. Oct. 2, 2003
(citing 17 Lee R. Russ & Thomas F. Segalla, Couch On Insurance § 254:59 (3d ed. 2001)) (internal
brackets omitted).
witnesses.20 When evidence is in conflict, the Court must resolve those conflicts “if reasonably
possible[,] so as to make one harmonious story.”21
V. Opinion and Order
The Court has carefully examined the medical records, expert reports, and other evidence
proffered by both parties, and finds that Plaintiff’s complaints of his lower back injuries and pain
were aggravated by a pre-existing condition from the April 2009 accident.22 Although Plaintiff
mainly experienced pain in his right lower back and his right leg after the April 2009 accident,
medical records indicate that, as a result of that accident, he developed symptomatic facet disease
in his spine, which caused him to continually have lower back pain. In fact, the results- of
Plaintiff 3 MRI, taken on May 26, 2009, revealed mild midline disc bulging on the left side of his
lower back. The Court also notes that the lumbar injections that Plaintiff received in 2013 were
administered in the same facet joints of the spine as the injections that were administered in
2009. This, coupled with the fact that Dr. McGlynn, Plaintiff’s own medical expert, indicated
that the injuries “could be considered nothing more than an aggravation of his pre-existing
injury” leads the Court to believe that Plaintiff s injuries were in fact pre-existing, and therefore,
the treatment sought in connection with these injuries was not necessary and casually related to
the March 2013 accident.
The Court also finds that Plaintiff, as the only fact witness to provide live testimony, was
less than compelling. Plaintiff was unable to recall what medications he took or when he
received medical treatment, and often times, contradicted himself. Plaintiff was also unable to
2° Nat ’1 Grange Mut. Ins. Co. v. Nelson F. Davis, Jr. et. al., 2000 WL 33275030, at *4 (Del. Com. Pl.
Feb. 9, 2000).
21 Idaho
22 Although Dr. Downing, State Farm’s medical expert, indicated that Plaintiffs hip injuries were related
to the March 2013 accident, at trial, Plaintiff indicated that he had only sought treatment for his lower
back, and without any more evidence regarding Plaintiff’ 5 hip pain, the Court is unable to award Plaintiff
any damages for this injury.
explain why he waited five weeks after the March 2013 'accident before seeking medical
treatment and what caused him to seek such treatment. Additionally, Plaintiff could not provide
details of the April 2009 accident, the injuries he sustained and the treatment he received as a
result of the accident to the Court’s satisfaction.23
Ultimately, the Court finds that Plaintiff has failed to meet his burden in proving, by a
preponderance of the evidence, that the medical services received were necessary and that the
bills or charges for such services were reasonable.
VI. Conclusion
For the foregoing reasons, the Court hereby enters judgment against Plaintiff F emandito
Rivera and in favor of State Farm Fire and Casualty Company.
IT IS SO ORDERED this 21st day of October, 2015.
23 The Court also finds the timing of Plaintiff initiating this lawsuit to be suspicious given that he settled
his lawsuit for the April 2009 accident in April 2013, and subsequently underwent treatment with Dr.
McGlynn.
10