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Jones v. Colorado Casualty Insurance Co.

United States District Court, D. Arizona

April 21, 2015

Anthony H. Jones, Plaintiff,
v.
Colorado Casualty Insurance Company, et al., Defendants.

ORDER

JAMES A. TEILBORG, Senior District Judge.

Before the Court is Defendant's motion for summary judgment. (Doc. 121). The Court now rules on the motion.

I. Background

In February of 2010, while working for Best Glass, Inc., Plaintiff Anthony Jones ("Plaintiff") was involved in an auto accident. (Defendant's Statement of Facts, Doc. 122 ("DSOF") at ¶ 1; Plaintiff's Response to Defendant's Statement of Facts, Doc. 127 ("PRDSOF") at ¶ 1). Plaintiff initially treated with his personal chiropractor, Dr. Widoff, for the injuries he suffered in the accident, after which he was referred to an orthopedic surgeon, Dr. Sumit Dewanjee. (DSOF at ¶¶ 2, 3; PRDSOF at ¶¶ 2, 3). Dr. Dewanjee created a report of his July 23, 2010 visit with Plaintiff, in which he recorded that Plaintiff was a candidate for arthroscopic surgery. (DSOF at ¶ 4; PRDSOF at ¶ 4).

Best Glass reported the injury to its workers' compensation insurer, Defendant Colorado Casualty Insurance Company, on July 29, 2010. (DSOF at ¶ 5; PRDSOF at ¶ 5). Defendant assigned adjuster Trudy Spratta to handle the claim. (DSOF at ¶ 6; PRDSOF at ¶ 6). On September 16, 2010, Ms. Spratta scheduled an Independent Medical Examination ("IME") with Dr. David Bailie, which Plaintiff attended on October 6, 2010. (DSOF at ¶ 14; Plaintiff's Statement of a Facts, Doc. 128 ("PSOF") at ¶¶ 13, 14).

After reviewing Plaintiff's medical records and examining Plaintiff, Dr. Bailie recommended Plaintiff undergo "conservative treatment" of physical therapy and injections for two months and then be reevaluated for surgery if he has not reached maximum medical improvement ("MMI"). (DSOF at ¶ 7; PRDSOF at ¶ 7; PSOF at ¶¶ 15-16).

Ms. Spratta provided Dr. Bailie's October 6, 2010 report to Dr. Dewanjee and Plaintiff. (DSOF at ¶ 8; PRDSOF at ¶ 8; PSOF at ¶ 17). Ms. Spratta authorized the conservative treatment recommended by Dr. Bailie and declined to authorize surgery.[1] (DSOF at ¶ 8; PRDSOF at ¶ 8; PSOF at ¶ 17, 19). Plaintiff began physical therapy on December 17, 2010. (DSOF at ¶ 8; PRDSOF at ¶ 8). Plaintiff returned to see Dr. Dewanjee on January 21, 2011, after which Dr. Dewanjee documented that Plaintiff "elected"[2] to continue with the physical therapy. (DSOF at ¶ 9; PRDSOF at ¶ 9). Dr. Dewanjee also recommended that Plaintiff undergo additional physical therapy beyond what Dr. Bailie recommended. (DSOF at ¶ 10; PRDSOF at ¶ 10). Dr. Dewanjee's clinic then requested authorization from Defendant for the additional physical therapy, which was approved. ( Id. ).

Plaintiff completed physical therapy and was discharged from Dr. Dewanjee's clinic on April 8, 2011. (DSOF at ¶ 11; PRDSOF at ¶ 11). An April 14, 2011 claims note indicates that Ms. Spratta refused authorization for more physical therapy, instead telling Plaintiff that he must return to the surgeon for a recommendation. (PSOF at ¶ 22; Doc. 128-6 at 1218). Plaintiff returned to Dr. Dewanjee on April 29, 2011. (DSOF at ¶ 12; PRDSOF at ¶ 12). Dr. Dewanjee noted in his report of the visit that Plaintiff continued to have signs of impingement, mild pain over the biceps tendon, and tenderness over the acromioclavicular joint. (Doc. 124-1 at 532). Dr. Dewanjee discussed treatment options with Plaintiff and recommended the same surgery he originally recommended. ( Id. ). Plaintiff elected to proceed with the surgery. (DSOF at ¶ 12; PRDSOF at ¶ 12).

On May 5, 2011, Dr. Dewanjee issued a work status note taking Plaintiff off work until after surgery. (DSOF at ¶ 13; PRDSOF at ¶ 13). Best Glass received the note and sent it to Ms. Spratta on June 27, 2011. ( Id. ). Best Glass then terminated Plaintiff on May 13, 2011 because it could not accommodate Plaintiff's work restriction. (DSOF at ¶ 14; PRDSOF at ¶ 14; PSOF at ¶ 25). A claims note written by Ms. Spratta dated May 4, 2011 states that Defendant "would not be able to pay lost time" benefits. (Doc. 128-6 at 1282).

When Ms. Spratta received Dr. Dewanjee's report of the April 29 visit on May 4, 2011, she scheduled another IME with Dr. Bailie for May 25, 2011. (DSOF at ¶ 15; PRDSOF at ¶ 15). After rescheduling the IME several times, Plaintiff filed a motion with the Industrial Commission of Arizona ("ICA"), requesting a protective order barring the IME. (DSOF at ¶ 17; PRDSOF at ¶ 17; Doc. 123-1 at ICA SDT 00037). An ICA Administrative Law Judge ("ALJ") denied Plaintiff's motion and directed Plaintiff to attend the IME on June 22, 2011. (Doc. 123-1 at ICA SDT 00037).

On May 6, 201, while the parties were litigating the IME issue at the ICA, Plaintiff filed a "worker's report of injury" form with the ICA. (Doc. 123-1 at ICA SDT 00029). Defendant accepted Plaintiff's disability claim on June 7, 2011 and began issuing checks to Plaintiff for disability benefits at about the same time. (DSOF at ¶¶ 14, 19; PRDSOF at ¶¶ 14, 19).

Plaintiff obeyed the ICA's directive and attended the IME on June 22, 2011, [3] after which Dr. Bailie recommended a different surgery than Dr. Dewangee. (PSOF at ¶ 29; Defendant's Response to Plaintiff's Statement of Fact ("DRPSOF"), Doc. 132, at ¶ 29; Doc. 128-11). Specifically, Dr. Dewangee had recommended "a SLAP labral tear, distal clavicle excision, and subacromial decompression, " (Doc. 124-1 at 532), while Dr. Bailie recommended "bicep tenodesis... instead of a labral repair, " ( Id. at 534). A claims note dated July 1, 2011 states, "Dr. Bailie indicates [Plaintiff] should have arthroscopic surgery with biceps tenodesis or tenotomy. I am investigating if we can limit the surgery to this procedure or will have to authorize a labral repair." (Doc. 128-6 at 1301-02; PSOF at ¶ 35; DRPSOF at ¶ 35).

Ms. Spratta then sent Dr. Bailie's report to Dr. Dewangee on July 20, 2011, requesting that Dr. Dewangee review it and "let me know if he agrees." (Doc. 124-1 at 536). Dr. Dewangee sent a report back to Ms. Spratta detailing an August 19, 2011 appointment with Plaintiff and recommended the surgery he initially recommended. (Doc. 123-1 at SDT 00027; Doc. 124-1 at 1285; see also Doc. 123-1 at 42:8-43:24).

Ms. Spratta then scheduled another IME to, in Defendant's words, "break the tie" between Dr. Dewanjee's opinion and Dr. Bailie's opinion. (DSOF at ¶ 21; PRDSOF at ¶ 21; PSOF at ¶¶ 35, 38). Dr. Neal Rockowitz was selected to perform this third IME, which took place on September 29, 2011. (DSOF at ¶¶ 22, 23; PRDSOF at ¶¶ 22, 23; PSOF at ¶¶ 35, 38, 41). Dr. Rockowitz concluded that Plaintiff was ...


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