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Bradley v. Donegal Mutual Insurance Co.

Superior Court of Delaware

January 24, 2019

SCOTT BRADLEY, Plaintiff-Below, Appellant,
v.
DONEGAL MUTUAL INSURANCE COMPANY, Defendant-Below, Appellee.

         UPON 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.

          Colin M. Shalk, Esquire, Casarino, Christman, Shalk, Ransom & Doss, 1007 N. Orange Street, Suite 1100, P.O. Box 1276, Wilmington, Delaware, Attorney for the Appellee.

          Jan R. Jurden, P.J.

         I. INTRODUCTION

         This is an appeal of an Insurance Commissioner Arbitration Panel (the "Arbitration Panel") decision.[1] 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 wages.[2]

         On 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.[3] The parties requested a bench trial so that both sides could present evidence and legal arguments.

         Pursuant 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."[4] 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."[5] 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.[6]

         The 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.[7] Donegal's counsel explained that the Arbitration Panel is not a record court and is designed for twenty minute hearings.[8] At trial, Bradley argued that the lost wage calculation should be based on the "Wage and Salary Verification" form Bradley initially submitted to Donegal.[9] 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 wages.[10]

         The following key dates are mentioned throughout the Court's opinion:

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 accident.
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 records.
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 Sears.[11]
May 16, 2017: Dr. Crain performed shoulder surgery on Bradley.[12]
November 30, 2017: Dr. Boulos released Bradley back to work with limitations.

         II. EVIDENCE PRESENTED AT TRIAL

         On November 24, 2015, Bradley was injured in a motor vehicle accident when his work van was rear-ended ("the November 2015 MVA").[13] At the time of the November 2015 MVA, Donegal insured Bradley's work van.[14] The Donegal insurance policy included a PIP limit of $300, 000.[15]

         Bradley's Prior Accidents and Related Injuries

         Prior 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").[16] At the time of the 2013 Accidents, Bradley worked as a refrigeration technician for Sears.[17] 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.[18] During this time period, Bradley was treated non-surgically[19] with physical therapy[20] and cervical and lumbar injections.[21]

         Two-Level Cervical Fusion Recommended

         In July 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.[22] 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.[23]Bradley testified that although Dr. Boulos recommended a two-level fusion, surgery was not scheduled and he did not plan on having the surgery.[24] Instead, Bradley researched alternatives to a cervical fusion and sought a second opinion.[25]

         On 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[26] before scheduling the two-level cervical fusion.[27]

         November 2015 MVA

         Bradley 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 . .. ."[28] 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.[29]

         Dr. Boulos testified further that Bradley was now complaining of "a change and an increase in the symptoms."[30] 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."[31] 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."[32]

         Dr. 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.[33] Six days after the November 2015 MVA, on November 30, 2015, Bradley saw Dr. Zerefos, who removed Bradley from work until December 15, 2015.[34] Dr. Boulos then removed Bradley from work on total disability from December 12, 2015 until December 28, 2015 to have an MRI study.[35] On December 28, 2015, Dr. Boulos continued the total disability pending surgery without a specified end date for Bradley's total disability.[36]

         Bradley Files PIP Claim

         Following the November 2015 MVA, Bradley filed a PIP claim with Donegal for lost wages.[37] Donegal assigned Bradley's PIP claim to a Claims Adjuster, Deborah Dougherty. Dougherty contacted Bradley to obtain information relevant to his claim[38] and sent him forms to be completed and submitted to Donegal.[39] 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.[40] Dougherty further testified that Donegal requested this information in an effort to have a more accurate monthly or weekly wage.[41] 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.[42] Donegal accepted the 2014 K-l as a substitute and calculated Bradley's lost wages based on the 2014 K-l.[43]

         Then on January 21, 2016, Donegal began paying Bradley's medical bills[44] and lost wages of $3, 126.20 per month.[45] First, Donegal sent Bradley, in the form of back-pay, lost wages for the period of November 24, 2015 to December 24, 2015.[46] Afterwards, Donegal paid Bradley lost wages in monthly increments.[47]

         Bradley Undergoes Three-Level Cervical Fusion

         On March 29, 2016, Dr. Boulos performed a three-level cervical fusion on Bradley.[48] Post-surgery, Bradley underwent physical therapy on his neck.[49] 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[50] 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 dealt with.[51]

         On June 16, 2016, at Donegal's request, Dr. Spellman performed a records review of Bradley's medical file.[52] 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.[53]

         Donegal 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.[54] Then on July 9, 2016, less than four months after Bradley's three-level fusion, Donegal stopped paying Bradley for lost wages.[55] From, July 9, 2016 until early 2017 Bradley had no source of income.[56] 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.[57]

         On September 9, 2016, Dr. Boulos gave Bradley a disability note that states Bradley was totally disabled through September 29, 2016.[58] 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 wage."[59]

         On 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.[60] 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.[61]

         On 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."[62] Dr. Boulos' November 11, 2016, note states that Bradley's "Active Problems" are "Cervical Radiculopathy" and "Intervertebral Disc Disorder Lumbar with Radiculopathy."[63] Dr. Boulos' "Assessment" from this date states "[t]his is a gentleman status post cervical spine surgery. He is recovery [sic] very well postoperatively."[64] The note further states that the "Plan" is for a "[f]ollow-up [appointment] is required [in three months]."[65]

         On February 17, 2017, Bradley saw Dr. Boulos.[66] Dr. Boulos' February 17, 2017, note states that Bradley's "Active Problems" are "Cervical Radiculopathy" and "Intervertebral Disc Disorder Lumbar with Radiculopathy."[67] 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."[68] The note further states that Bradley "made significant improvements in his cervical spine pain as well as in his arm symptoms."[69]

         Then on May 16, 2017, Bradley underwent right shoulder surgery.[70] 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 accident71

         In 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.[72] 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."[73] On November 30, 2017, Dr. Boulos released Bradley back to work with limitations.[74]

         Expert Testimony

         Dr. Spellman

         Based on his review of Bradley's medical records, [75] 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.[76] 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."[77] In addition, Dr. Spellman testified, in response to a question about the 2013 MRI, on direct examination:

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.[78]

         Dr. Spellman also testified that he did not see a difference between the 2013 MRI[79] and the December 2015 MRI.[80] Dr. Spellman opined that Bradley and Dr. Boulos were "temporizing"[81] prior to the November 2015 MVA but "ultimately [Dr. Boulos] concluded before the [November 2015 MVA], that Bradley needed a multilevel fusion."[82] 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.[83]

         Dr. Boulos

         Dr. 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 longer work.[84]

         Dr. 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.[85] 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.[86] 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."[87]

         Dr. Boulos disagrees with Dr. Spellman's opinion that there is no difference between the 2013 MRI and the December 2015 MRI.[88] Dr. Boulos opined that the December 2015 MRI shows a worsening of the cervical spine compared to the 2013 MRI.[89] In particular, Dr. Boulos testified that the December 2015 MRI shows increased disc protrusion causing more stenosis.[90] 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."[91] 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 shoulder injuries.[92]

         Complications

         With 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 months.
Q: All right. In this case it was two years because of the complicated factors you discussed, correct?
A: 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 fair?
A: Yes.
Q: Okay. And because he was an atypical patient he was out for a two-year time period. Right?
A: Yes.[93]

         Dr. Boulos testified that Bradley was totally disabled in July of 2016 and Bradley's disability was extended to September of 2016.[94] 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."[95] 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 ...

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