APPEAL FROM INSURANCE COMMISSIONER ARBITRATION PANEL AND
DECISION AFTER NON-JURY TRIAL
Submitted Date: October 8, 2018
Jonathan B. O'Neill, Esquire, Kimmel, Carter, Roman,
Peltz & O'Neill, 56 W. Main Street, 4th Floor, P.O.
Box 8149, Newark, Delaware, Attorney for the Appellant.
M. Shalk, Esquire, Casarino, Christman, Shalk, Ransom &
Doss, 1007 N. Orange Street, Suite 1100, P.O. Box 1276,
Wilmington, Delaware, Attorney for the Appellee.
an appeal of an Insurance Commissioner Arbitration Panel (the
"Arbitration Panel") decision. The issue before the
Arbitration Panel was whether Bradley was entitled to lost
wages as a result of a motor vehicle accident on November 24,
2015 (the "November 2015 MVA") and his subsequent
three-level cervical spine fusion ("three-level
fusion"). On October 11, 2016, the Arbitration Panel
ruled in favor of Donegal Mutual Insurance Company
("Donegal") and denied Bradley's claim for lost
October 25, 2016, Bradley appealed the Arbitration
Panel's decision to this Court, and asked this Court not
only to review de novo the Arbitration decision, but
also to determine the proper lost wage calculation, an issue
both parties agree was not addressed by the Arbitration
Panel. The parties requested a bench trial so
that both sides could present evidence and legal arguments.
to 21 Del. C. § 2118(j)(5), the losing party
has the right to "appeal de novo to the
Superior Court" an insurance arbitration
"administered by the Insurance Commissioner or the
Insurance Commissioner's nominee." Under §
2118(a)(2), the insurer must pay the insured, up to its
limits, "reasonable and necessary expenses incurred
within 2 years from the date of the
accident." On appeal, the plaintiff bears the
burden of proof to show by a preponderance of the evidence
that the lost wages sought are reasonable, necessary and
proximately related to the accident.
Court held a bench trial on October 8, 2018. During the
trial, the parties had trouble stating the exact issues
argued before the Arbitration Panel and whether they had a
complete set of the exhibits submitted to the Arbitration
Panel. Donegal's counsel explained that
the Arbitration Panel is not a record court and is designed
for twenty minute hearings. At trial, Bradley argued
that the lost wage calculation should be based on the
"Wage and Salary Verification" form Bradley
initially submitted to Donegal. Donegal disagreed,
arguing that the lost wage calculation was properly based on
Bradley's 2014 Schedule K-l (Form 1065) (the "2014
K-l"), and Bradley was estopped from arguing otherwise
because he never objected to Donegal using the 2014 K-l and
he accepted the lost wage payments based on that form, not
his initial "Wage and Salary Verification" form.
Donegal further contends that when Bradley voluntarily
submitted the 2014 K-l to Donegal through counsel (in
response to Donegal's request for additional salary
information), Bradley understood and agreed that Donegal
would use the 2014 K-l to calculate his lost
following key dates are mentioned throughout the Court's
March 13, 2013: Bradley injured his neck and
right shoulder in a motor vehicle accident.
September 19, 2013: Bradley aggravated his
neck and right shoulder injuries and injured his lumbar in a
motor vehicle accident.
October 14, 2013: Bradley exacerbated his
neck, right shoulder and lumbar injuries in a motor vehicle
August 20, 2015: Dr. Boulos recommended that
Bradley undergo a two-level cervical fusion.
November 24, 2015: Bradley was involved in a
fourth motor vehicle accident. Donegal insured the vehicle
Bradley was driving.
November 30, 2015: Dr. Zerefos removed
Bradley from work until December 15, 2015.
December 3, 2015: Bradley saw Dr. Boulos who
removed Bradley from work as totally disabled.
December 28, 2015: Dr. Boulos and Bradley
agree to schedule a three-level fusion.
January 21, 2016: Donegal paid Bradley lost
wages for the "Service Period" November 24, 2015 to
December 24, 2015.
March 29, 2016: Dr. Boulos performed a
three-level fusion surgery on Bradley.
June 16, 2016: Dr. Spellman, hired by
Donegal, performed a records review of Bradley's medical
June 29, 2016: Donegal paid Bradley lost
wages for the "Service Period" June 30, 2016 to
July 9, 2016.
July 9, 2016: Donegal cut off lost wage
payments to Bradley.
September 29, 2016: The end date for the
last disability note Dr. Boulos gave Bradley.
December 5, 2016: Dr. Boulos performed
lumbar surgery on Bradley. Bradley does not assert that this
surgery is related to the November 2015 MVA.
Early 2017: Sedgwick agreed to pay Bradley
lost wages based on the wages he earned while working
May 16, 2017: Dr. Crain performed shoulder
surgery on Bradley.
November 30, 2017: Dr. Boulos released
Bradley back to work with limitations.
EVIDENCE PRESENTED AT TRIAL
November 24, 2015, Bradley was injured in a motor vehicle
accident when his work van was rear-ended ("the November
2015 MVA"). At the time of the November 2015
MVA, Donegal insured Bradley's work van. The
Donegal insurance policy included a PIP limit of $300,
Prior Accidents and Related Injuries
to the November 2015 MVA, Bradley was involved in three
motor-vehicle accidents in 2013 and sustained injuries to his
neck, right shoulder and lumbar (collectively "the 2013
Accidents"). At the time of the 2013 Accidents,
Bradley worked as a refrigeration technician for
Sears. After the 2013 Accidents and leading
up to the November 2015 MVA, Bradley was working as a HVAC
technician for Advanced Solar and Heating ("Advanced
Solar"), where he earned $25 per hour and 4% commission
on gross sales. During this time period, Bradley was
treated non-surgically with physical
therapy and cervical and lumbar
Cervical Fusion Recommended
2015, Bradley's treating physician, Dr. Boulos, ordered
an MRI of Bradley's neck because the last MRI was two
years old and Bradley was still experiencing symptoms in his
neck. On August 20, 2015, during an office
visit with Dr. Boulos, Bradley and Dr. Boulos discussed the
recent MRI results and Dr. Boulos' recommendation that
Bradley undergo a two-level cervical fusion.Bradley
testified that although Dr. Boulos recommended a two-level
fusion, surgery was not scheduled and he did not plan on
having the surgery. Instead, Bradley researched
alternatives to a cervical fusion and sought a second
September 16, 2015, Bradley saw Dr. Downing for cervical
injections. Dr. Downing's office note states that Bradley
was waiting on his workers' compensation
claim before scheduling the two-level
testified that as a result of the November 2015 MVA he
injured his neck, right shoulder and lumbar, and "had
issues with [his] left side after that, as well, [his] upper
left - - arm . .. ." Dr. Boulos testified
that on December 3, 2015, during Bradley's first office
visit with Dr. Boulos after the November 2015 MVA:
[Bradley] notified us that he was in a motor vehicle accident
that was on 11/24 of 2015. He had been rear-ended. He was now
having worsening left-sided arm pain in addition to the
right-sided pain that he had previously, as well as worsening
pain in his neck.
Boulos testified further that Bradley was now complaining of
"a change and an increase in the
symptoms." Dr. Boulos' December 3, 2015,
note states that the "Reason For Visit" was a
"follow up," "increased pain in back, legs
following MVA on 11/24/15 (rear-ended), now has left arm
pain." The note goes on to state that
"[Bradley] is having more pain. I did recommend that he
have an MRI to assess if there is been in [sic] anatomical
change in his cervical spinal segments."
Boulos and Bradley testified that as a result of the November
2015 MVA Bradley aggravated his neck, lumbar and right
shoulder injuries from the 2013 Accidents. Six days
after the November 2015 MVA, on November 30, 2015, Bradley
saw Dr. Zerefos, who removed Bradley from work until December
15, 2015. Dr. Boulos then removed Bradley from
work on total disability from December 12, 2015 until
December 28, 2015 to have an MRI study. On December 28,
2015, Dr. Boulos continued the total disability pending
surgery without a specified end date for Bradley's total
Files PIP Claim
the November 2015 MVA, Bradley filed a PIP claim with Donegal
for lost wages. Donegal assigned Bradley's PIP
claim to a Claims Adjuster, Deborah Dougherty. Dougherty
contacted Bradley to obtain information relevant to his
claim and sent him forms to be completed
and submitted to Donegal. Dougherty testified
that after reviewing Bradley's submission, Donegal
requested the last three years of Bradley's tax returns
to verify his salary because "Donegal routinely requests
the past three years in tax returns," of a self-employed
or 1099 individual who files a PIP claim. Dougherty
further testified that Donegal requested this information in
an effort to have a more accurate monthly or weekly
wage. Dougherty testified that in response
to Donegal's request, Bradley provided Donegal with his
2014 K-l because he became a 1099 individual in
2014. Donegal accepted the 2014 K-l as a
substitute and calculated Bradley's lost wages based on
the 2014 K-l.
January 21, 2016, Donegal began paying Bradley's medical
bills and lost wages of $3, 126.20 per
month. First, Donegal sent Bradley, in the
form of back-pay, lost wages for the period of November 24,
2015 to December 24, 2015. Afterwards, Donegal
paid Bradley lost wages in monthly increments.
Undergoes Three-Level Cervical Fusion
March 29, 2016, Dr. Boulos performed a three-level cervical
fusion on Bradley. Post-surgery, Bradley underwent
physical therapy on his neck. In response to a
question about that, Bradley testified:
Yeah, [physical therapy] actually made a difference after the
surgery of helping me regain strength in my neck and
alleviating some of the post-surgery issues. It got to a
point where my right shoulder issue and the neck were
undiscernible and I was still having issues and I
continued to see Dr. Crain on that issue and then he
determined that there was [sic] issues in my right shoulder
that kind of had to stop my physical therapy until I had that
16, 2016, at Donegal's request, Dr. Spellman performed a
records review of Bradley's medical file. According
to Dougherty and Dr. Spellman, Donegal opted for a records
review rather than a medical exam because Bradley was
recovering from his three-level fusion.
sent what ended up being its last payment to Bradley on June
29, 2016 for the "Service Period" of June 30, 2016
to July 9, 2016. Then on July 9, 2016, less than four
months after Bradley's three-level fusion, Donegal
stopped paying Bradley for lost wages. From, July 9,
2016 until early 2017 Bradley had no source of
income. In early 2017, Sedgwick agreed to
pay for the three-level fusion and two-thirds of
Bradley's lost wages from July 10, 2016 until
"ongoing"- based on Bradley's earnings, while
employed at Sears in 2013.
September 9, 2016, Dr. Boulos gave Bradley a disability note
that states Bradley was totally disabled through September
29, 2016. September 29, 2016 was six months
after the three-level fusion. This note was the last
disability note Bradley received from Dr. Boulos. Bradley
testified he stopped requesting disability notes from Dr.
Boulos "[b]ecause nobody needed them because Donegal cut
me off, so there was no purpose to continue getting notes for
somebody that wasn't going to pay for my lost
September 29, 2016, Bradley saw Dr. Boulos, but Dr.
Boulos' note from this visit does not mention the
three-level fusion. Instead, Dr. Boulos' September 29,
2016, note states that Dr. Boulos and Bradley decided to move
forward with lumbar surgery. After the September
29, 2016 appointment with Dr. Boulos, Bradley continued to
receive physical therapy related to his three-level fusion up
until his lumbar surgery on December 5, 2016.
November 11, 2016, Bradley saw Dr. Boulos for a "follow
up, [for] neck pain and Patient has received PT for 6 weeks,
3 lumbar injections." Dr. Boulos'
November 11, 2016, note states that Bradley's
"Active Problems" are "Cervical
Radiculopathy" and "Intervertebral Disc Disorder
Lumbar with Radiculopathy." Dr. Boulos'
"Assessment" from this date states "[t]his is
a gentleman status post cervical spine surgery. He is
recovery [sic] very well postoperatively." The note
further states that the "Plan" is for a
"[f]ollow-up [appointment] is required [in three
February 17, 2017, Bradley saw Dr. Boulos. Dr.
Boulos' February 17, 2017, note states that Bradley's
"Active Problems" are "Cervical
Radiculopathy" and "Intervertebral Disc Disorder
Lumbar with Radiculopathy." The note states that
Bradley saw Dr. Boulos for a "follow up, no new studies,
had injection of AC joint by Dr. Crane which has aggravated
neck." The note further states that Bradley
"made significant improvements in his cervical spine
pain as well as in his arm symptoms."
May 16, 2017, Bradley underwent right shoulder
surgery. According to Dr. Boulos' May 19,
2017 note, Bradley continued to have neck pain:
[a]t this stage we have fixed the neck and Dr. Crane
has done a repair to his shoulder as well. He still has
surgical bandages on his shoulder. Once he is cleared from
Dr. Crane's perspective to do some physical therapy and
encouraged him to do physical therapy for the cervical spine
as well as a shoulder [sic] in an effort to get him
through these final stages of healing from this
addition to Bradley's appointments with Dr. Boulos for
his three-level fusion, Bradley had additional appointments
with Dr. Boulos for his lumbar injury. In particular, Bradley
saw Dr. Boulos on December 16, 2017; January 13, 2017; and
March 17, 2017. Then on May 26, 2017, Bradley saw
Dr. Boulos, again, for his lumbar injury. Dr. Boulos' May
26, 2017, note states Bradley had completed six weeks of
physical therapy and injections and "he is going to need
to do some physical therapy and work hardening [for his
lumbar] prior to being able to go back to
work." On November 30, 2017, Dr. Boulos
released Bradley back to work with limitations.
on his review of Bradley's medical records,
 Dr. Spellman testified by deposition
that Dr. Boulos' two-level cervical fusion recommendation
was related to the 2013 Accidents and that Dr. Spellman would
not have been surprised if Dr. Boulos had recommended a
three-level fusion as a result of the 2013
Accidents. According to Dr. Spellman,
"[b]ased on the information available to me, you know,
without seeing the patient, my recommendation would be
three-levels were significantly diseased and if you did the
two, you'd worry about them having to come back to do the
third." In addition, Dr. Spellman testified,
in response to a question about the 2013 MRI, on direct
At three levels, C-4-5, C5-6 and C6-7 there were -- at all
levels there was posterior protrusion of the disc behind the
annulus. In other words, the disc had pushed out or herniated
beyond the annulus with encroachment on the nerves with
associated -- two things. Basically encroached on the nerves.
There are what are called bony reactive changes where his
joints became arthritic, the bone on either side of the joint
makes more bone to try to stabilize things, if you will. And
in the hip, that extra bone formation is not a problem. When
it happens in the spine, that extra bone formation encroaches
on the channels that the nerves run out of. And it looked to
me like he had just -- looking at the MRI, I concluded the
three levels would be responsible for symptoms.
Spellman also testified that he did not see a difference
between the 2013 MRI and the December 2015
MRI. Dr. Spellman opined that Bradley and
Dr. Boulos were "temporizing" prior to the
November 2015 MVA but "ultimately [Dr. Boulos] concluded
before the [November 2015 MVA], that Bradley needed a
multilevel fusion." According to Dr. Spellman, the
recovery from a three-level fusion is:
a big multi-factorial, depending on the way surgery was done
and the quality of the host tissue and, you know, there's
always a roll of the dice too type of thing. But... generally
speaking, the recovery from a three-level surgery takes about
as long as a two-level surgery. The same process happens, but
it doesn't happen sequentially, it happens concurrently
at the three levels.
Boulos testified by deposition that Bradley's disability
and three-level fusion were reasonable, necessary and related
to the November 2015 MVA:
before the [November 2015 MVA Bradley] was still working...
[while injured and] we were able to manage him with the
therapy and the injections, and he was still able to work.
After the [November 2015 MVA], his symptoms had - and his
clinical syndrome had become such that he could not - no
Boulos testified that on December 3, 2015, Bradley complained
of increased pain in his right arm and neck and new pain in
his left arm. This prompted Dr. Boulos to order a
new MRI of Bradley's neck (the "December 2015
MRI"). On December 28, 2015, Dr. Boulos reviewed the
December 2015 MRI with Bradley. In Dr. Boulos'
opinion, the December 2015 MRI was consistent with
Bradley's subjective complaints because it shows
"progression of his problems, again including worsening
at the -- at the 6-7 [cervical] level."
Boulos disagrees with Dr. Spellman's opinion that there
is no difference between the 2013 MRI and the December 2015
MRI. Dr. Boulos opined that the December
2015 MRI shows a worsening of the cervical spine compared to
the 2013 MRI. In particular, Dr. Boulos testified
that the December 2015 MRI shows increased disc protrusion
causing more stenosis. Dr. Boulos reiterated his opinion
that Bradley's three-level fusion is related to the
November 2015 MVA because "we had recommended a
two-level fusion prior to that accident, and then after the
[November 2015 MVA] his disease and his . . . clinical course
progressed to the point where we recommended a three-level
fusion." Dr. Boulos further opined that,
unlike a typical patient whose recovery from a cervical
fusion is roughly six months, Bradley's recovery took two
years because of the complications from his lumbar and
respect to factors allegedly complicating Bradley's
recovery, Dr. Boulos testified on direct examination and
re-direct examination as follows:
Q: Now if Mr. Bradley had been the garden-variety patient in
terms of perhaps never having any prior accidents, and you
performed a cervical fusion, whether it's a two level or
three level, how long would a norm -- how long would he
normally be out of work?
A: For the type of work that he does, it could be about six
Q: All right. In this case it was two years because of the
complicated factors you discussed, correct?
Q: So if he were to be a typical patient as opposed to an
atypical patient, and he undergoes cervical ~ a three-level
fusion in March of 2016, is it fair to say he'd be out
approximately until September or October of 2016? Is that
Q: Okay. And because he was an atypical patient he was out
for a two-year time period. Right?
Boulos testified that Bradley was totally disabled in July of
2016 and Bradley's disability was extended to September
of 2016. Dr. Boulos further testified that
Bradley's lumbar and shoulder injuries complicated his
recovery because all three injuries required different forms
of treatment and took Bradley "away from doing, you
know, different physical therapies for the neck. So that did
delay some of the postoperative
treatment." Responding to a question from
Donegal's counsel as to whether Bradley's other
injuries delayed his recovery from the three-level fusion or
just kept him as "disabled from something else,"
Dr. Boulos testified:
, I do think his recovery from the cervical spine surgery was
delayed because of the further -- you know, these were
justified treatments, but treatments nonetheless, that did
take his attention away. Again, I'm looking at his -- Dr.
Zerefos' notes where he, you know, was trying to do
physical therapy, and again, he was having a lot of trouble
with tenderness ...