Demetrulias v. Wal-Mart Stores Inc.

• Decision Date: 10 January 2013
• Docket Number: No. CV–11–01407–PHX–GMS.,CV–11–01407–PHX–GMS.
• Citation: Demetrulias v. Wal-Mart Stores Inc., 917 F.Supp.2d 993 (D. Ariz. 2013)
• Parties: Mary DEMETRULIAS, Plaintiff, v. WAL–MART STORES INC., a Delaware corporation; Claims Management Inc., an Arkansas corporation dba AR Claims Management Inc., dba Arkansas Claims Management Inc.; Wal–Mart Associates Inc., a Delaware corporation, Defendants.
• Court: U.S. District Court — District of Arizona

917 F.Supp.2d 993

Mary DEMETRULIAS, Plaintiff,

v.WAL–MART STORES INC., a Delaware corporation; Claims Management Inc., an Arkansas corporation dba AR Claims Management Inc., dba Arkansas Claims Management Inc.; Wal–Mart Associates Inc., a Delaware corporation, Defendants.

No. CV–11–01407–PHX–GMS.

United States District Court, D. Arizona.

Jan. 10, 2013.

David Sylvester Shughart, III, David S Shughart PC, Anita Rosenthal, Steven C. Dawson, Dawson & Rosenthal PC, Phoenix, AZ, for Plaintiff.

Catherine M. Pearson, Jay A. Zweig, Bryan Cave LLP, Phoenix, AZ, for Defendants.

ORDER

G. MURRAY SNOW, District Judge.

Pending before the Court is Defendants' Motion for Summary Judgment. For the reasons discussed below, the Motion is denied.¹

FACTUAL BACKGROUND

I. Parties and Initial Injury

Plaintiff Mary Demetrulias worked as a cashier for one of Defendant Wal–Mart Stores, Inc.'s (“Walmart”) retail stores in Scottsdale, Arizona. (Doc. 111 ¶ 3; Doc. 117 ¶ 3.) While at work on March 6, 2010, Demetrulias stumbled over a rolled-up rug in a darkened back room and fell on her right side. ( Id.) Demetrulias immediately reported the accident and injury to her Walmart manager. (Doc. 111 ¶ 4; Doc. 117 ¶ 4.) Her workers compensation form stated that Demetrulias suffered injuries to her right shoulder, back, right side, and right knee. (Doc. 111–1, Ex. 4 at WMA 001665.)

She soon filed a workers compensation claim with Walmart. (Doc. 111 ¶ 5; Doc. 117 ¶ 5.) Arizona is one of a few states where Walmart self-insures for workers compensation. (Doc. 111 ¶ 1; Doc. 117 ¶ 1.) Defendant Claims Management Inc. (CMI), a Walmart subsidiary, handles adjustment of workers compensation claims in Arizona. (Doc. 111 ¶ 2; Doc. 117 ¶ 2.) A CMI employee by the name of Karen Person was the claims adjuster for Demetrulias over the relevant time period. (Doc. 111 ¶ 6; Doc. 117 ¶ 6.) Her direct supervisor was Leatta Wittaker, who in turn was supervised by Blynn Stewart. (Doc. 118–2, Ex. 102 (Stewart Dep.) at 17:17–18:17.) Person, Wittaker, and Stewart all worked on Demetrulias's file. These adjusters often consult nurse case managers (“NCMs”) about medical questions, but the adjusters have the ultimate authority on claims decisions. (Doc. 119–1, Ex. 105 (Stephens Dep.) at 39:1–13.)

On March 7, 2010, Demetrulias was diagnosed by Dr. Gerald Yacobucci at the Orthopedic Clinic with post-traumatic impingement of the right shoulder with secondary adhesive capsulitis, and administered several injections for her pain. (Doc. 111 ¶¶ 8, 14; Doc. 117 ¶¶ 8, 14.) On April 12, 2010, he released Demetrulias back to “light duty” work with specific lift/push/pull imitations. (Doc. 111 ¶ 15; Doc. 117 ¶ 15.) Demetrulias began working again for Walmart at a position that largely entailed answering the phones. (Doc. 111 ¶ 16; Doc. 117 ¶ 16.) She worked in this capacity until June 20, when she left because of her condition. (Doc. 111 ¶ 17; Doc. 117 ¶ 17.)

II. Surgery, Delay, and Injury Expands to Wrist and Hand

On April 22, while Demetrulias was engaged in her light duty work, she complainedto Dr. Yacobucci of “the recent onset of tingling and electrical sensation in the thumb, index, and middle finger of the right hand ... [that] began during her therapy.” (Doc. 111–3, Ex. 18 at WMA 000190.) Dr. Yacobucci recommended shoulder surgery and filed a request with CMI for approval that same day, although apparently not with the adjuster assigned to Demetrulias. (Doc. 111–3, Ex. 18.) ²

By May 7, neither Demetrulias nor her physician heard back from CMI. Demetrulias called CMI and told the adjuster that her surgery was supposed to take place on May 10, but that CMI had not yet given approval. (Doc. 111–2, Ex. 5 at WMA 001286.) She also sent a letter to CMI that stated she needed surgery “ASAP.” (Doc. 117–1, Ex. 71.) Person, Demetrulias's claims adjuster, contacted Dr. Yacobucci's office about the shoulder surgery eighteen days later on May 25. (Doc. 111–2, Ex. 5 at WMA 0001284.) Person heard back from Dr. Yacobucci's office on June 3, and received the request form on June 8. (Doc. 111–2, Ex. 5 at WMA 0001284; Doc. 111 ¶ 27; Doc. 117 ¶ 27.) It was approved that day. (Doc. 111 ¶ 27; Doc. 117 ¶ 27.) Apparently, Dr. Yacobucci requested authorization by fax on May 11, May 20, and again on June 3, but sent that fax to the wrong adjuster. (Doc. 111–2, Ex. 5 at WMA 0001284; Doc. 117–1, Ex. 70.) Demetrulias eventually underwent the shoulder surgery on June 23, 2010, soon after she left her light duty work at Walmart. (Doc. 111 ¶ 28; Doc. 117 ¶ 28.) Nevertheless, Demetrulias testified that from April 22 to June 8, 2010, her physical pain was “off the charts.” (Doc. 117–1, Ex. 64 (Demetrulias Dep.) at 119:4–122:8.)

Dr. Yacobucci had Demetrulias in for a follow-up visit on July 1. (Doc. 111 ¶ 29; Doc. 117 ¶ 29.) Demetrulias told Dr. Yacobucci that the tingling in her right hand and fingers was getting worse. (Doc. 111–3, Ex. 21 at WMA 000273.) He ordered an EMG, or nerve conduction study. ( Id.) That request was denied on July 2 by Wittaker, Person's supervisor. (Doc. 111 ¶ 30; Doc. 117 ¶ 30; Doc. 119–1, Ex. 106 (Wittaker Dep.) 65:12–16.) Wittaker determined that the hand and wrist problem was a preexisting condition based on two pieces of evidence. ( Id.) First, Demetrulias's medical records had listed “Carpal tunnel syndrome” as a condition she had some time earlier, although the file did not specify the hand or hands in which Demetrulias suffered the condition. (Doc. 111–3, Ex. 22 at WMA 000055–56.) Wittaker did not clarify that ambiguity. In fact, Demetrulias's previous carpal tunnel was in her left hand and arm. (Doc. 120–1, Ex. 114 ¶¶ 3–4.) Second, Wittaker stated that the initial March injury report did not mention any hand or wrist injuries, (Doc. 111–3, Ex. 23 (Wittaker Dep.) at 67:3–68:22), although the April 22 report from Dr. Yacobucci described “the recent onset of tingling and electrical sensation in the thumb, index, and middle finger of the right hand ... [that] began during her therapy.” (Doc. 111–3, Ex. 18 at WMA 000190.)

There was apparently some behind-the-scenes discussion between Person and a NCM named Jo Lynn Culppepper about Demetrulias's wrist injury. Culpepper contacted Demetrulias on July 14, and there was a back-and-forth about whether the hand and wrist issue was related to the March incident or was related to a previous wrist injury. (Doc. 111–2, Ex. 5 at WMA 001278.) Culpepper told Demetrulias to have Dr. Yacobucci call her during the next day's appointment to see whether there was a different diagnosis that would allow an EMG test. ( Id.) Dr. Yacobucci called Culpepper the next day, and told her that Demetrulias was “considerably worse” than the last time he saw her. ( Id.) Culpepper gave verbal authorization for a c-spine MRI and EMG. ( Id.) Demetrulias had the EMG on July 21, 2010, twenty days after the initial request. (Doc. 111–3, Ex. 24 at WMA 000328.) The reported findings of the EMG were consistent with right carpal tunnel syndrome. ( Id.)

Culpepper made the following notation in Demetrulias's file: “Because the file is taking a turn regarding affected body parts as well as [treatment], NCM recommends IME [independent medical examination].” (Doc. 111–2, Ex. 5 at WMA 001278.) Person formally requested an IME on July 19, 2010. (Doc. 111 ¶¶ 34–35; Doc. 117 ¶¶ 34–35.) On July 26, Stewart, one of Person's supervisors, reviewed Demetrulias's file. He noted that “NCM has recommended an IME to limit the extent of Injury. Depending on what the IME says, we will likely have a reserve change coming.” (Doc. 111–2, Ex. 5 at WMA 001277.) With regard to the “limit the extent of Injury” comment, Stewart stated that he did not get a chance to “edit” the comment because he was “in a rush.” (Doc. 118–2, Ex. 102 (Stewart Dep.) at 126:1–10.) In any event, the IME was scheduled for September 1. (Doc. 111 ¶ 29; Doc. 117 ¶ 29.)

All treatment was put on hold pending the IME. (Doc. 111–2, Ex. 5 at WMA 001276.) Dr. Yacobucci visited again with Demetrulias on July 29. (Doc. 112, Ex. 27 at WMA 000357.) Because previous efforts had failed to relieve the carpal tunnel pain, he recommended surgery. ( Id.) In a letter to Walmart he wrote: “The carpal tunnel issue has already been addressed in a conservative fashion with cortisone instillation without improvement. At this point, it would be appropriate to move forward with definitive treatment in the form of a right wrist carpal tunnel release. We will begin the scheduling process today and obtain authorization from the carrier.” ( Id. at 000371.) CMI did not approve the referral because of the IME request and told this to Demetrulias. (Doc. 111–2, Ex. 5 at WMA 001276.) At another follow-up visit with Dr. Yacobucci on August 12, the doctor remarked that Demetrulias “has a diagnosis of carpal tunnel syndrome on the ride side which has failed conservative management and we are awaiting authorization to move forward with carpal tunnel release. The patient has a diagnosis of cervical spinal pathology which is currently being assessed by Dr. Levine via an IME.” (Doc. 117–2, Ex. 75 at WMA 006208.)

The IME was performed by Dr. Levine on September 1, 2010. (Doc. 111 ¶ 42; Doc. 117 ¶ 42.) He determined that the carpal tunnel condition was work related and recommended wrist surgery. ( Id.) CMI formally accepted the report on September 15. (Doc. 111–2, Ex. 5 at WMA 001273.) Meanwhile, Dr. Yacobucci noted on September 9 that Demetrulias's shoulder was “actually regressing” and that “[t]he problem, at this point, is that we are in a holding pattern, awaiting the opinion of the IME Specialist. The shoulder, however, does need continued ongoing care, otherwise, we are looking at a decrease in function and increasing pain.” (Doc. 117–2, Ex. 77.) After CMI accepted the IME report on September 15, Dr. Yacobucci again requested wrist surgery. (Doc. 111 ¶¶ 43–44; Doc. 117 ¶¶ 43–44.) It was approved on September 16 ( id.), and Demetrulias...