Zimmer v. Travelers Ins. Co.

• Decision Date: 06 October 2006
• Docket Number: No. 4:04-cv-00542.,4:04-cv-00542.
• Citation: 454 F.Supp.2d 839
• Parties: Kris A. ZIMMER, Plaintiff, v. The TRAVELERS INSURANCE CO.; St. Paul Travelers Gas. Inc.; Constitution State Services, LLC; The Continental Insurance Co. a/k/a CNA; and Wells Fargo & Company, Defendants.
• Court: U.S. District Court — Southern District of Iowa

454 F.Supp.2d 839

Kris A. ZIMMER, Plaintiff, v. The TRAVELERS INSURANCE CO.; St. Paul Travelers Gas. Inc.; Constitution State Services, LLC; The Continental Insurance Co. a/k/a CNA; and Wells Fargo & Company, Defendants.

No. 4:04-cv-00542.

United States District Court, S.D. Iowa, Central Division.

October 6, 2006.

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CeCelia Ibson Wagner, Smith, Schneider, Stiles & Serangeli, Lori E Cole, Bradshaw Fowler Proctor Fairgrave PC, Moines, IA, for Defendants.

Bruce H. Stoltze, Brick Gentry Bowers Swartz Stoltze & Levis PC, West Des Moines, IA, for Plaintiff.

MEMORANDUM OPINION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

PRATT, Chief Judge.

Before the Court are two motions for summary judgment. On May 5, 2006, Defendants Wells Fargo & Company ("Wells Fargo"), St. Paul Travelers Companies, Inc. ("St.Paul"), Travelers Insurance Company ("Travelers"), and Constitution State Services ("CSS"), filed a Motion for Summary Judgment (Clerk's No. 72). On May 8, 2006, Defendant Continental Insurance Company, a/k/a CNA ("CNA") joined in the other Defendants' Motion for Summary Judgment (Clerk's No. 77). Also on May 5, 2006, Plaintiff Kris Zimmer ("Zimmer") filed a Motion for Partial Summary Judgment (Clerk's No. 74). Defendants resisted Zimmer's Motion for Partial Summary Judgment on May 26, 2006 (Clerk's No. 87) and Plaintiff replied (Clerk's No. 92). After being granted an extension of time, Plaintiff filed a resistance to Defendants' Motion for Summary Judgment on June 9, 2006 (Clerk's No. 94). Defendants did not file a reply brief. A hearing was held on the motions on September 14, 2006. The matters are fully submitted.

I. FACTUAL BACKGROUND

Kris Zimmer ("Plaintiff') filed the present action on June 22, 2004, in the Iowa District Court in and for Polk County, Iowa. Travelers Insurance Company and Constitution State Services removed the matter to federal court on October 5, 2004, on the basis that all parties are diverse and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332. Plaintiff filed his First Restated Complaint and Jury Demand on October 8, 2004, alleging that during his employment with Norwest Financial, n/k/a Wells Fargo, in June 1999, he sustained an injury properly compensable under Iowa workers' compensation law. Plaintiff asserts that Defendants improperly denied his workers' compensation claim and that such denial constitutes bad faith under Iowa Code Chapter 85.

A. Facts through August 3, 1999

Plaintiff Zimmer was born March 6, 1960. He obtained an associate in applied science degree in electronic engineering technology in 1983. In 1988, Plaintiff had surgery for a work-related injury with a prior employer. The surgery, performed by Dr. William Boulden, consisted of a decompression laminectomy and fusion. Complications in the surgery resulted in partial damage to Plaintiffs S 1 nerve root. Dr. Boulden rated Plaintiffs impairment at 25% and recommended restrictions of no prolonged sitting or standing for longer than 30 minutes without changing position, and no bending, twisting, or lifting with his back. See Pl.'s Statement of Undisputed Facts (Clerk's No. 74.2) at ¶ 3.

On July 15, 1996, Plaintiff commenced employment installing computers with Norwest Financial, n/k/a Wells Fargo (hereinafter "Wells Fargo"). He continued to experience low back pain and reported such back pain to Dr. Carol Horner, his primary physician, on July 22 and October 28, 1997. Dr. Horner's records also reflect that she was treating Plaintiff for stress-related symptoms as early as 1987. Id. Beginning in February 1999, Dr. Horner referred Plaintiff to a series of doctors for treatment of his back pain, including a psychiatrist, Dr. Thomas Koithan.¹ Id. ¶ 4.

Medical records from Dr. McGuire, a treating physician who first saw Plaintiff on March 22, 1999, note that Plaintiff had a "very lengthy history," including "a posterior fusion by Dr. Boulden in 1988." Joint App. at 39. "He is now having increasing problems with back and leg symptoms .... Back in the 80s he apparently had some problems with weakness in the left leg. After surgery that all basically resolved and now it has come back again."² Id. On March 24, 1999, Dr. McGuire indicated that he had reviewed an MRI scan of Plaintiff and found it to be "a pretty reasonable looking MRI scan." Id. Dr. McGuire concluded that "there is no logical surgery for [Plaintiff]." Id. at 38.

Medical records from Dr. Igram, a provider that Plaintiff saw on May 17, 1999, stated that Plaintiff had a "lengthy and complicated history" and noted that "[t]he back problem started in March 1999." Id at 312. After putting Plaintiff through several tests and evaluating the records Plaintiff supplied to him for review, Dr. Igram concluded:

I am not certain what to make of his complaints. I did review the notes from Dr. McGuire. I am not certain where the symptoms could be coming from. Surgically there is nothing much to offer him. I offered an evaluation by one of the psychiatrists in the office. He will think about this. If he decides to go ahead, I will make arrangements.³

Defs.' Statement of Undisputed Facts at ¶ 38.

Dr. Stein saw Plaintiff on May 28, 1999, on referral from Dr. Horner. Id. ¶ 46. Dr. Stein's notes⁴ indicate that he saw Plaintiff on that date "for chronic low back and leg pain." Joint App. at 314. Dr. Stein wrote in pertinent part:

The pain that he is having is not quite as intense as prior to surgery [in 1988] but it was different He also complains of some shooting pains down his legs as well .... He has suffered from pain ever since [his 1988 back surgery] .... [In October 1997] he was apparently accused of some wrong doings at work .... He is still hassled by management .... He has seen several orthopedic surgeons recently and had a[n] MRI of his lumbar spine performed this past year .... Neurological examination reveals an alert individual in no acute distress presently. After the examination he was sweating profusely. His gait was a little bizarre particularly his left leg as he walked. I asked him to hop on either leg and he held onto the walls on either side to hop. He did not fall with hopping on his left leg although he told me his left leg will get numb and give out on him momentarily and he has fallen down 3 times in the last 3 weeks. It is a transient weakness that he has .... The patient has a lot of symptomology but nothing objective on examination. The MRI shows some degenerative disease at the L-5 S-1 level but I think the symptomology he has is far greater than what I see on the films. I spoke to him at length today. I think a lot of his problems are more on an emotional basis than on a physical basis .... We can consider an electromyographic study in the future should he return. He is a difficult case hopefully we can help him out.

Id. at 15-17; 315.

On June 1, 1999, Plaintiff claims to have hurt his back when he helped a consultant pick up papers that had been dropped in the street and were being blown by the wind. Plaintiff informed his supervisor, and eventually was sent home from work.⁵ On June 2, 1999, Plaintiff presented at Des Moines General Hospital ("DMGH") for treatment. Defs.' Statement of Undisputed Facts ¶ 5. According to the emergency room report, Plaintiff was seen at DMGH by Dr. Javaid Abbasi. Joint App. at 24. The report,⁶ lists Plaintiffs "Chief Complaint" as a one-day history of "Mingling sensations on the three fingers of the left hand with discoloration on those fingers." Id. Dr. Abbasi noted that Plaintiff "[i]s remarkable for back problems" and that he had previously had back surgery. Under "Review of Systems," Dr. Abbasi states: "[Plaintiff] is remarkable for tingling and bluish discoloration of the three fingers of his left hand since yesterday. The patient denied any falls or injury .... He does complain of back pain, which is chronic in nature." Id. Dr. Abbasi concluded with an impression of "possible vasculitis" and notified Dr. Homer, who "present[ed] to the emergency room to assume care of the patient." Id. at 25. Dr. Horner wrote a note⁷ excusing Plaintiff from work "from 6/1/99 until released due to medical illness." Id. at 736.

On June 3, 1999, Plaintiff went to see Dr. Retenmaier, apparently on referral from Dr. Horner. Dr. Retenmaier's report⁸ states:

This 39-year old white male presents for evaluation basically for a variety of pain issues, primarily left sided leg greater than arm, as well as some recent vague discoloration changes in his hands. He dates the onset of his problems to 1988. He apparently had an injury and developed what sounds to be radicular symptoms .... He talks about basically having chronic numbness and tingling down his left leg on the posterior aspect all the way down into the foot. He also talks about some off and on pain. Interestingly, over time, his back pain basically improved significantly.... About 2½ years ago, he started developing some other pain issues. He apparently started having some pains that started in the left side of his lower back and chest and moved up into his arm. He talks about pains that radiate up his arm up into the left side of his face and neck. He apparently had workup at that time. He ended up being treated for anxiety issues. It sounds like he got better control of that. Then since January of this year, he has had progressive worsening... He talks about low back pain that has been unmanageable. In the past, it has always been manage[able], but has subsequently been unmanageable .... Tuesday around 2 p.m., he apparently missed his Xanax, an hour late. He developed the sudden onset of discoloration in his left hand.... He also has been having a lot of anxiety issues. This apparently has been a significant problem for several years. About 2½ years ago, he apparently had stress at work and dropped 35 pounds in a quick period of time .... He admits to a lot of work stress. He readily admits to...