Valory Shepperson v. State Farm Mutual Automobile Insurance Company

IN THE COURT OF COMMON PLEAS FOR THE STATE ()F DELAWARE
IN AND FOR NEW CASTLE COUN'I``Y
)
VALORY SHEPPERSON, )
)
Plaintiff, )
)
v. ) C.A. No. CPU4-14-003 863
)
STATE FARM MUTUAL )
AUTOMOBILE INSURANCE )
COMPANY, )
)
Defendant. )
Gary S. Nitsche, Esquire Patrick G. Rock, Esquire
Weik, Nitsche, Dougherty & Galbraith Heckler & Frabizzio
305 North Union Street, Second Floor 800 Delaware Avenue, Suite 200
P.O. Box 2324 P.O. Box 128
p Wilmington, Delaware, 19899 Wilmington, Delaware, 19899
Attorneyfor Plaz'ntijj' Attorneyj?)r Defendant
DECISION AFTER TRIAL
This is a personal injury protection ("PIP") action arising out of a motor vehicle accident
Valory Shepperson ("Plaintiff") seeks damages totaling $5,679.81, stemming from medical
expenses allegedly incurred as a result of a motor vehicle accident on November 12, 2012
("Accident"). Plaintiff claims that pursuant to Title 21 of the Delaware Code Section 2118
("Section 2118"), as her insurer, State Farm Automobi1e insurance Company ("Defendant") is
obligated to pay the medical expenses Trial took place on January 26, 2016, and the Court
reserved decision. 'l``his is the Court’s decision after tria1.
PROCEDURAL HISTORY
On December 30, 2014, Plaintiff filed a Comp1aint against Defendant alleging breach of
contract for Defendant’s failure to pay PIP benefits pursuant to an insurance agreement between
the parties Plaintiff alleges that Defendant insured her for no-fault benefits pursuant to Section
2118. Plaintiff contends that she suffered neck and back injuries f``rom the Accident, and the
medical expenses that she sustained were reasonable, necessary, and causally related to the
Accident. Plaintiff seeks damages totaling $5,679.81 plus ongoing medical expenses, attomeys’
fees, and court costs.l
On February l2, 2015, Defendant filed its Answer denying Plaintiff’ s substantive
allegations, but admitted to the existence of the no-fault insurance agreement Defendant denies
that Plaintiff’ s medical expenses were reasonable, necessary, and causally related to the
Accident. In its Answer, Defendant asserted numerous affirmative defenses, of which defenses
Defendant pursued only two at trial: that Plaintiff’ s medical expenses were not reasonable,
necessal'y, or causally related to the Accident; and that Defendant had already paid some of the
claimed medical expenses.z
On January 26, 2016, the Court held trial. At trial, Plaintiff was the only witness to
testify, however both parties proffered medical expert reports and medical records for the Court’s
consideration.g
1 Plaintiff’s damages claim is divided as follows: $310.00 for Dr. Leitzke’s services, $l,079.00 for Dr. Tucl2007 WL 1378334, at *2 (Del. Super. May. 7,
2007) (holding an insurer may introduce additional facts in support of initial disclaimer so long as facts do not
advance a new ground for coverage denial).
Defendant contends that it properly denied Plaintiff’ s claim for medical expenses and
thus, it is not in breach of contract. Defendant avers that Plaintiff’ s expenses were not
reasonable, necessary, and causally related to the Accident because they originated from a pre-
existing degenerative condition, and that any damage caused by the Accident would have
stabilized in the subsequent six to twelve weeks. In support of this contention, Defendant relies
upon the Gelman and Murphy Reports.
In the Gelman Report, Dr. Gelman concluded that Plaintiff reached maximum medical
improvement as of February 2013, and that Plaintiff`` s examination was normal. Dr. Gelman also
noted "a very slight decreased disc signal" and that the “cervical and lumbar spine findings noted
are degenerative . . . [and] pre-date" the Accident.” Dr. Gelman based his conclusions on a
physical examination of Plaintiff conducted on September 17, 2013, a review of Plaintiff’s
medical and musculoskeletal history, the MRI reports, and Dr. Phoon’s EMG report. Dr.
Gelman believes that the MRI exams were not required because the records do not reflect or
document any significant neurological finding and Plaintiff’s medical history does not identify
anything of a "red flag" nature.“ Dr. Gelman also determined that the EMG findings of
radiculopathy "cannot be supported via clinical objective assessment." According to Dr.
Gelman, Plaintiff’s symptoms could have been reasonably treated with "a few months of
conservative care," and that although reasonable early on, as of May 2013, Dr. Leitzke’s care has
been "excessive."'$
On December 3, 2014, Dr. Murphy examined Plaintiff and concluded that Plaintiff was
fully recovered from any Accident-related injuries. He opined that further treatment was not
reasonable or medically necessary. ln his report, Dr. Murphy mentioned that Plaintiff had
'3 oef. exhibit 1 p. 2_
" ld. ar_=..
|5
subjective complaints of pain but that upon physical examination, these complaints were not
"substantiated with any objective abnormalities."'° Dr. Murphy opined that any soft tissue
injuries would have stabilized in a period of six to twelve weeks post-injury. Dr. Murphy also
noted that, in relation to the Accident, no MRI testing, EMG testing or massage therapy would
be considered reasonable or medically necessary Moreover, Dr. Murphy suggested that any
further opiate medication prescriptions would not be considered reasonable or medically
necessary Dr. Murphy concluded that Plaintiff suffered no physical restrictions or permanent
injuries resulting from the Accident.
DISCUSSION
Section 2118 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." "The statutory standard is reasonable and necessary, which includes reasonable
medical probability."'s ln 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."‘° 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."z° Section 2ll8(2)(a) limits compensation to those expenses incurred within two
years from the date of the accident.zl
" r)ef. Exhibic 7 p. 4.
" sraze Faaa Ma¢. Aeaa. rea ca v. stare Dep'¢ afNa:araz Rea. & Eava. Caaaaz, 2011 wL 2173676, ar
*2 (Del. Super. May 31, 2011}.
‘“ ra'.(quaring Deaaa v. s:a¢e Faaa Mar. Aa¢a. laa. Ca., 2003 WL 440943 6, er *2 (Del. saper. Feb. 13,
2003)).
19 1a wiring Rayj@era ~.». Pawer, 840 A.za 642 (Del. 2003) (TABLE)).
2° Maageae v. stare Faaa raa., 2015 WL 4603052, ar *3 (Del. cam. 1>1. May 23, 2015) (quariag Waa~aa
v. Metropolitan Property and Cas. Ins. Co., 2003 WL 22290906, at *5 (Del. Super. Ct. Oct. 2, 2003
8
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
witnesses.zz When evidence is in conf``1ict, the Court must resolve those conflicts "if reasonably
possible[,] so as to make one harmonious story."”
P1aintiff has demonstrated, by a preponderance of the evidence, that the medical services
received were necessary and that the bills or charges for such services were reasonable. The
Court finds Plaintif``f’ s testimony credible because her subjective observations and complaints are
in accord with objective medical examinations
At the outset, Plaintiff complained to emergency room staff of neck and back pain which
she described as beginning at the moment of impact. During her subsequent encounters with Dr.
Tucker, Dr. Leitzke, Dr. Cary, Dr. Gelman, and Dr. Murphy, Plaintiff consistently reported
having identical medical issues and significant pain. Notably, Plaintiff`` testified that prior to the
Accident, she had not experienced neck or back pain of this type, and according to Defendant’s
expert, the X-rays of Plaintiff’s back and neck, taken proximate to but before the accident, were
normal.z'l By all accounts, the MRIs indicated the presence of abnormalities in the form of a
bulging disc and disc protrusion, the cause of which remains in dispute, but whose symptoms are
known to cause pain.
Defendant’s argument that a pre-existing degenerative condition is the actual cause of
Plaintiff’s pain is unavailing Defendant contends that Plaintiff’ s cornplaints, lingering beyond
February of 2013, arose from a degenerative condition in the cervical and lumbar spine which
(citing 17 Lee R.. Russ & Thomas F. Segalla, C0uch On Insurance § 254:59 (3d ed. 2001)) (internal
brackets omitted).
2‘ 21 Del_ c_ §21 is(z)(e).
12 Ne: ’1 orange Mez. res. ca v. Nelsee F. Devie, J»~. e¢. ez., 2000 wL 33275030, et *4 (r)el. cem. P1.
Feb. 9, 2000).
” let
” net exhibit 7 p. 3.
pre-dates the Accident. In support of this, Dr. Gelman directs the Court to a "very slight
decreased disc signal" in the L4 ~ 5 disc, yet he fails to offer any reasoning to support his
conclusion. In contrast, the Cary Report supports a narrative that the pain began as a result of the
Accident and continued beyond the moment of soft tissue recovery, which corroborates the
independent observations of other healthcare professionals, and buttresses Plaintiff’s testimony.
Dr. Cary reports that within a reasonable degree of medical probability, and as a result of the
Accident, Plaintiff sustained a cervical, thoracic, and lumbar spine strain and sprain,
compounded by C5 - 6 disc protrusion, L4 - 5 bulging disc, and L5 radiculopathy. Although
Defendant provides a viable alternative basis upon which to explain Plaintiff" s injuries, such
explanation, and the evidence provided in its support, falters in light of Plaintiff’ s presentation of
substantively rich documentary and testimonial evidence. Simply put, Plaintiff s evidence
strongly comports with, and builds upon the facts on record, but Defendant’s Expert Reports
make largely unsubstantiated claims which are comparatively speculative.
Defendant further argues that damages associated with the seven drug screens requested
by Dr. Cary are unreasonable. In support of this, Defendant submitted a worker’s compensation
fee schedule for laboratory services.z$
According to this document, a maximum lab fee of
$100.00 is permissible. To justify her medical expenses, Plaintiff provided the Cary Report,
which stated that all medical expenses were reasonable. lt is this Court’s inclination, in a non-
worker’s compensation case, to follow the fact-specific conclusions of a qualified and
experienced medical expert over a worker’s compensation fee schedule of questionable
applicability 'l``herefore, the Court finds that all of Plaintiff’ s incurred medical expenses were
reasonable.
25 net exhibit 5.
10