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Calvin and Blanche Watson v. Nationwide Mutual

June 13, 2012

CALVIN AND BLANCHE WATSON
v.
NATIONWIDE MUTUAL INSURANCE COMPANY OF NORTH AMERICA



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

MEMORANDUM

Presently before the Court is Defendant Nationwide Mutual Insurance Company of North America's Motion for Partial Summary Judgment. (ECF No. 17.) For the following reasons, the Motion will be granted.

I. BACKGROUND

A. Procedural History

On February 22, 2011, Plaintiffs Calvin and Blanche Watson filed a Complaint against Defendant Nationwide in the Court of Common Pleas of Lancaster County, alleging breach of contract ("Count I") and bad faith ("Count II"). (Compl., Def.'s Mot. Summ. J. Ex. A.) Defendant removed the matter to this Court on March 10, 2011. (Notice of Removal, ECF No. 1.) On March 21, 2011, Defendant filed a motion to dismiss. (ECF No. 3.) Plaintiffs responded soon thereafter. (ECF No. 7.) On October 12, 2011, we granted the motion in part and denied it in part. (Court Mem., ECF No. 8.) Defendant filed an Answer on October 26, 2011. (ECF No. 10.)

Defendant filed the instant Motion on April 16, 2012. (Def.'s Mot. Summ. J., ECF No. 17; Def.'s Br., ECF No. 18.) Plaintiffs responded on April 30, 2012. (Pls.' Resp., ECF No. 19.)

The case is scheduled for trial on June 25, 2012.

B. Factual Summary*fn1

On the afternoon of November 23, 2008, Plaintiff Blanche Watson ("Mrs. Watson") was driving a 2008 Toyota Prius (the "Prius") on North Reading Road in Ephrata Township, Pennsylvania. (Compl. ¶ 6.) The Prius was owned by Mrs. Watson and her husband, Plaintiff Calvin Watson ("Mr. Watson"). (Id. at ¶ 3.) Plaintiffs had purchased automobile insurance from Defendant which covered the Prius. (Id.) The terms of the policy guaranteed Plaintiffs first-party medical benefits ("PIP") and uninsured motorist benefits ("UM"), among other coverage. (Id.)*fn2

The Prius was struck from behind by a car driven by Gina Ford, an unlicensed and uninsured driver who fled the scene. (Compl. ¶¶ 6-7.) The Prius was significantly damaged and declared a total loss. (Id. at ¶ 8.) Mrs. Watson felt her neck twist, and sustained trauma to her right knee, which had hit the dashboard. She also sustained back and shoulder injuries. (Id. at ¶ 10; Watson Dep. 26, 41, Def.'s Mot. Summ. J. Ex. K.) Mrs. Watson was taken to Ephrata Community Hospital, where she was examined, and diagnosed with a contused right knee. (Skrimcovsky Report 000334, Def.'s Mot. Summ. J. Ex. D; Kliger Report 000316, Def.'s Mot. Summ. J. Ex. E.) Mrs. Watson was advised to consult with her primary care physician within two weeks, and treated with Advil and ice in the interim. (Watson Dep. 32, 43.) Mrs. Watson visited her primary care physicians, Drs. Chelius and Bohn, at Conestoga Family Practice on December 2, 2008. (Id. at 42.) Dr. Chelius injected Mrs. Watson's knee with cortisone, advised her to apply heat and ice to her neck, and advised that a brace might mitigate her knee pain. (Id. at 43-45.) Her condition improved in the ensuing weeks and months. (Id. at 49-50.)

On February 10, 2009, Mrs. Watson consulted with Dr. Clayton Hollinger at Wenger Chiropractic ("Wenger") about her neck and shoulder pain. (Id. at 48-49, 51.) This was the first of six such visits to Wenger through March 31, 2009. (Id. at 53.) According to Mrs. Watson, the treatment was mostly unhelpful. (Id.) Wenger provided treatment, but did not provide referrals to additional specialists or conduct extensive imaging or X-rays. (Id. at 53-55.)

Six to seven months after the accident, Mrs. Watson began to experience pain in her lower back. (Id. at 39.) She was informed by several doctors-Dr. Bohn, her chiropractor, Dr. Hollinger and Dr. Marcelino Oliveri, D.O., to whom Mrs. Watson was referred by Dr. Bohn (id. at 55)-that the pain was connected to the accident. (Id. at 39-40.) Mrs. Watson visited Dr. Hollinger frequently between March 5, 2010 and April 5, 2010. She visited Dr. Bohn in April, June and July of 2010. During the April 26, 2010 visit, she received X-rays of her lumbar spine. (Pls.' Resp. Ex. 6.) She also visited Dr. Oliveri in August, September and December of 2010, in order to receive lumbar facet injections and a lumbar MRI.*fn3 (Antin Report 000303, Def.'s Mot. Summ. J. Ex. G.) In addition, Mrs. Watson received physical therapy at the Rehab Center in Ephrata six times in August and September of 2010. (Watson Dep. 56, 76.) In 2011, Mrs. Watson began treatment at Crossroads Surgical Center. (Id. at 80-82.)

Mrs. Watson's PIP claim was handled by Temika Sloane, an adjuster with Defendant. (Pls.' Answers to Interrogatories 1, Def.'s Mot. Summ. J. Ex. C.) On November 24, 2008, Sloane and Mrs. Watson discussed the claim handling process. (Reif Report 8, Def.'s Mot. Summ. J. Ex. Q.) Defendant made all payments through March 31, 2009, and the PIP file was closed on May 18, 2009. (Id.) Defendant informed Mrs. Watson that it would no longer pay for treatments. (Watson Dep. 57.) When Mrs. Watson re-initiated contact with Sloane in March 2010, Sloane, citing the lapse between treatments, determined that Mrs. Watson's future medical bills should be evaluated using the peer review process. (Id. at 8-9.)

Defendant initiated three separate peer reviews, conducted through JM Consulting, Inc., an entity also known as The Prime Network ("Prime"). (Compl. ¶ 18; see also Pls.' Resp. Ex. 11.)The first review, conducted by Dr. Jason M. Skrimcovsky, D.C., was completed on June 1, 2010, and concerned Mrs. Watson's treatment at Wenger. Dr. Skrimcovsky concluded that all treatment conducted between February 10, 2009 and March 31, 2009, as well as treatment conducted between March 5, 2010 and April 5, 2010, was reasonable and necessary. (Skrimcovsky Report 3.) Dr. Skrimcovsky opined that all treatment after April 5, 2010 was unreasonable and unnecessary. (Id. at 2.) He based this conclusion on the "established therapeutic protocols for the documented diagnoses," which he stated would render treatment above and beyond a specific number of visits to be unnecessary. (Id. at 2-3.)

Dr. Morris J. Kliger, D.O., reviewed Mrs. Watson's treatment with Dr. Bohn at Conestoga, in a report dated November 24, 2010. (Kliger Report 000316.)*fn4 According to Defendant, Dr. Kliger concluded that treatment beyond March 31, 2009 "cannot be supported as reasonable or necessary." (Def.'s Br. 16.) Defendant further states that Dr. Kliger concluded that "all treatment [at Conestoga] beginning 4/26/10 . . . cannot be supported as reasonable or necessary for injuries sustained" in the accident. (Id.)

The third peer reviewer, Dr. Mitchell E. Antin, D.O., evaluated treatments provided by Dr. Oliveri in a report dated January 12, 2011. (Antin Report 000303.) Dr. Antin determined that Mrs. Watson's initial consultation with Dr. Oliveri on September 3, 2010, was reasonable and necessary, but that all subsequent tests (including the lumbar MRI), treatments and consultations were medically unreasonable and unnecessary. (Id. at 000304-05.)

At the request of Plaintiffs' counsel, Defendant initiated a fourth peer review, conducted by Dr. Anthony E. DiMarco, D.O., to determine the propriety of treatment with Dr. Bohn. (DiMarco Report 000327, Def.'s Mot. Summ. J. Ex. F.) Noting that treatment plans need to be modified if a patient's condition is not improving, Dr. DiMarco cited gaps in Mrs. Watson's treatment with Dr. Bohn to determine that "Ms. Watson was a noncompliant patient and therefore it was very difficult for Dr. Bohn to treat her." (Id. at 000328.) According to Dr. DiMarco, treatment after March 5, 2009 was unreasonable and unnecessary, and referrals after the September 3, 2010 lumbar examination were unreasonable and unnecessary. (Id.)*fn5

Defendant refused to pay for some of the second round of claims; however, Plaintiffs concede that Defendant eventually "agreed to pay the rest of the chiropractor['s]" bill. (Watson Dep. 67.) Defendant also paid for a September 2010 visit to Conestoga. (See Pls.' Resp. Ex. 17 at 000090.) Ultimately, Plaintiffs paid out-of-pocket medical expenses of $587.02. (Pls.' Resp. 16.) The remaining bills were paid by Mrs. Watson's Medicare Advantage plan, HealthAmerica, with the exception of her treatment at the Rehab Center. (Watson Dep. 64-65.) Plaintiffs claim that the plan has a $3,631.67 lien on funds received by Plaintiffs. (Pls.' Resp. 16.)*fn6

Plaintiff's claim for benefits under the policy's UM coverage was assigned to Donna Gardner, a liability adjuster.*fn7 (Reif Report 7-8.) Gardner contacted Mrs. Watson on November 24, 2008, one day after the accident. (Gardner-Watson Transcript, Pls.' Resp. Ex. 4.) Gardner spoke with Mrs. Watson again on December 4, 2008. (Gardner Notes 000079, Pls.' Resp. Ex. 15.) Mrs. Watson's UM claim was assessed to be worth between $0 and $2,500. (Id. at 000068.)

Defendant and Mrs. Watson engaged in a back-and-forth over the course of several weeks, during which time Defendant offered between $1,000 and $1,600, and Plaintiffs' demand fluctuated between $1,750 and $2,000. (Id. at 000065.) Gardner noted that Mrs. Watson's injuries appeared to be limited. (Id.) On January 6, 2009, Mrs. Watson received a $1,700 payment from Defendant under the policy's UM coverage. (UM Receipt, Baker Dep. Exs. 3, Pls.' Resp. Ex. 13.) Defendant ...


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