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Mary E. D'orazio v. Hartford Ins. Co

May 5, 2011

MARY E. D'ORAZIO, PLAINTIFF,
v.
HARTFORD INS. CO., DEFENDANT.



The opinion of the court was delivered by: Joyner, J.

MEMORANDUM AND ORDER

Before this Court are Defendant's Motion for Summary Judgment (Doc. No. 24), Plaintiff's response in opposition thereto (Doc. No. 28), and Defendant's reply in further support thereof (Doc. No. 29). For the reasons set forth in this Memorandum, the Court grants Defendant's Motion.

I. BACKGROUND

On November 17, 2007, Plaintiff was injured in a motor vehicle accident. At the time of the accident, she was covered by Defendant's insurance policy, which provided coverage for "personal injury protection [(PIP)] benefits . . . if incurred within 2 years from the date of the accident causing bodily injury." (The Hartford Personal Auto Insurance Policy: Delaware 8, Def.'s Mot. Ex. 1.) The PIP benefits consisted of (1) "[r]easonable and necessary" medical expenses and (2) "[l]oss of wages, salary or their equivalent, net of taxes, for work an insured would have performed had he not been injured." (Id.)

Plaintiff thus submitted to Defendant an application for PIP benefits in December 2007. (Def.'s Mot. Ex. 2.) On the application, Plaintiff described her injury as "[j]ust the normal body 'snap' upon impact. Aching neck shoulders, back. Some numbness pain in legs--intermittent headache." (Id.) Plaintiff indicated that she was unaware of the amount of medical bills to date and did not know if she would incur more medical expenses. (Id.) In response to a question about any lost wages, she reported that she had not lost any wages and had been looking for a new job at the time of the accident. (Id.)

A. Plaintiff's medical expenses

Plaintiff received medical treatment, including physical therapy and epidural injections, during the following months. It is undisputed that Defendant covered these medical expenses. (Pl.'s Dep. 73:13-18, Def.'s Mot. Ex. 7.)

On April 2, 2008, Plaintiff's treating physician, Frank Sarlo, M.D., noted that Plaintiff had "started her physical therapy; however, it really seems to flare her pain." (Def.'s Mot. Ex. 3.) On May 28, 2008, Dr. Sarlo noted that Plaintiff was "doing about the same." (Def.'s Mot. Ex. 4.) Plaintiff was "tolerating her work activities well while lying on the floor" but had "pretty significant pain after sitting for just short periods of time." (Id.) Plaintiff was "unwilling to return to physician [sic] therapy" because "[s]he seem[ed] to feel this really made her pain a lot worse." (Id.) Dr. Sarlo opined that, "[a]t this stage, there is likely very little from an interventional spine perspective or physical therapeutic perspective that would likely help her at this point with her focal back pain." (Id.)*fn1

On July 9, 2008, Peter Bandera, M.D., performed an independent medical examination on Plaintiff, at the request of Defendant. After reviewing Plaintiff's records and examining her, Dr. Bandera opined,

It appears the treatment to date in terms of physical medical and rehabilitation [sic] have been appropriate. At this point she is taking intermittent pain medication and it would be appropriate to wean her off Tylenol with Codeine and exclusively rely on anti-inflammatory medication. There is a direct causal relationship between the above diagnosis and her injury of 11/17/07. No further therapy or diagnostic testing is felt necessary in light of essentially normal examination. Surgery would not be indicated.

. . . It is felt that she can execute normal activity without restrictions. (Def.'s Mot. Ex. 5.)

On July 25, 2008, Defendant sent Plaintiff's counsel a letter enclosing Dr. Bandera's report and stated that it would discontinue medical benefits based on the report, effective August 1, 2008. (Def.'s Mot. Ex. 6.) There is no evidence in the record that Plaintiff responded in any way to Defendant's letter; nor are there bills or medical records from providers indicating that Plaintiff sought or received further treatment.

B. Plaintiff's wage loss claim

On January 18, 2008, Plaintiff began a job as an architect with Bernardon, Harbere, Holloway, P.C. (Def.'s Mot. Ex. 8.) Around June of 2008, Plaintiff submitted a claim for wage loss benefits to Defendant, claiming that she had been unable to work between March 28, 2008, and April 25, 2008. (Id.) Defendant requested that Plaintiff provide a disability note from her treating physician to support her claim that she was medically unable to work during that time frame. (Def.'s Mot. Ex. 9.) There ...


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