Zolman v. Assurance

Decision Date03 March 2011
Docket NumberNo. 09CA1954.,09CA1954.
PartiesCharlotte ZOLMAN, Plaintiff–Appellant,v.PINNACOL ASSURANCE, Defendant–Appellee.
CourtColorado Court of Appeals

OPINION TEXT STARTS HERE

Bisset Law Firm, Jennifer E. Bisset, Englewood, Colorado, for Plaintiff–Appellant.Vaughan & DeMuro, David R. DeMuro, Michael J. Steiner, Shelby A. Felton, Denver, Colorado, for DefendantAppellee.Opinion by Judge LOEB.

In this insurance bad faith case, plaintiff, Charlotte Zolman, appeals the district court's summary judgment in favor of defendant, Pinnacol Assurance (Pinnacol). Zolman also appeals the court's denial of her C.R.C.P. 59 motion for reconsideration. We affirm.

I. Background and Procedural History

Zolman was employed as a personal companion by Horizon Home Care, LLC (Horizon). This job required her to provide a variety of non-medical home care services to elderly or disabled individuals. On December 3, 2004, Zolman injured her lower back as she was lifting a client's wheelchair up a step. She subsequently filed a workers' compensation claim with Pinnacol, which was Horizon's workers' compensation insurance carrier at the time.

We begin our discussion with a summary of Zolman's medical care and workers' compensation claim to provide the factual background for the bad faith complaint that underlies this appeal.

A. Medical Opinions Prior to the Administrative Order

Zolman was first examined for her lower back injury on December 6, 2004, by Dr. Danahey of Concentra, the physician's group designated by Horizon as its primary medical provider for work-related injuries. At this initial visit, Dr. Danahey ordered x-rays of Zolman and told her that her injury was consistent with a compression fracture. He also sent her for a CT scan the next day, which confirmed a compression fracture at the L5 vertebrae. Dr. Danahey became the authorized treating physician (ATP) for Zolman's workers' compensation claim.

Dr. Danahey then referred Zolman to Dr. Reiss, an orthopedic surgeon, who also became an ATP for her claim. Dr. Reiss examined Zolman on December 22, 2004. He similarly diagnosed her with an acute compression fracture at L5, stating that the fracture was stabilizing and would probably take two to three months to heal.

Pinnacol filed a general admission of liability for medical benefits and temporary total disability benefits based upon the initial examinations by Drs. Danahey and Reiss.

Dr. Reiss monitored Zolman's injury over the next several months. In April 2005, an MRI showed that the fracture had nearly stabilized. In May, a final x-ray confirmed that Zolman's fracture was stable, and Dr. Reiss discharged her from his care.

In May 2005, Dr. Danahey referred Zolman to Dr. Primack, a rehabilitation specialist, who became the third ATP for Zolman's workers' compensation claim. When Dr. Primack first examined Zolman on May 10, 2005, he agreed with the prior diagnoses of Drs. Danahey and Reiss and stated that Zolman had a stable L5 compression fracture. He then recommended a lumbar orthotic because Zolman was reporting discomfort in certain standing and sitting positions. According to Dr. Primack's notes from this initial consultation, Zolman declined a kyphoplasty as a treatment option.

Between May and August 2005, Zolman pursued physical therapy and relied on over-the-counter pain medication. She was seen by Dr. Primack for a follow-up examination on August 2, 2005. Dr. Primack again discussed treatment options for her back pain, which Zolman declined. According to his notes, [t]he patient does not want to undergo any type of interventional spine injection ... includ[ing] facet joints, epidural steroid injection, as well as a kyphoplasty.”

Thus, when Zolman returned to Dr. Primack for a third visit on August 16, 2005, he determined that she had reached maximum medical improvement (MMI), which in the workers' compensation context refers to the point in time when any impairment from a work injury has become stable and when no further treatment is reasonably expected to improve the condition. See § 8–40–201(11.5), C.R.S.2010. Dr. Primack also assessed her permanent impairment rating at twelve percent of the whole person and recommended that she continue with home exercise and over-the-counter pain medication.

Relying on Dr. Primack's findings, Dr. Danahey discharged Zolman from his care on August 18, 2005. On August 30, 2005, Pinnacol filed its final admission of liability (FAL) on the workers' compensation claim.

Zolman challenged Pinnacol's FAL by requesting a division-sponsored independent medical examination (DIME). On December 20, 2005, she was examined by Dr. Kreiger, the physician selected to perform the DIME. He agreed with Dr. Primack that Zolman had reached MMI in August 2005, but found that her permanent impairment rating was sixteen percent of the whole person. Dr. Kreiger did not recommend any post–MMI medical care. On January 19, 2006, Pinnacol amended its FAL to reflect Dr. Kreiger's DIME findings.

At this point, more than one year after she was injured on the job, Zolman sought another medical opinion to supplement the opinions of her three ATPs and the DIME physician. Upon the suggestion of her attorney, Zolman was examined on January 24, 2006, by Dr. Yamamoto, a board-certified physician in family medicine. Dr. Yamamoto diagnosed her with an L5 compression fracture, lumbosacral strain, and depression. He then recommended six types of treatment, including an evaluation for epidural steroid injections or facet injections and a trial of Lidoderm patches.

Dr. Yamamoto's recommendations for post–MMI medical care contrasted significantly with the opinions of the four prior physicians who recommended a post–MMI regimen of home exercise and over-the-counter medication. Accordingly, Zolman requested a workers' compensation hearing to determine (1) whether she was entitled to a change of physicians to Dr. Yamamoto; (2) whether she was entitled to post–MMI medical benefits; and (3) whether she had a permanent total disability. She did not challenge her MMI determination.

B. Administrative Order

An administrative law judge (ALJ) conducted an extensive evidentiary hearing beginning in April 2006. Over the course of several months, the ALJ received testimony, exhibits, and post-hearing depositions from Drs. Danahey, Primack, and Yamamoto, as well as from Zolman's employers, vocational rehabilitation experts, and Zolman herself. Thereafter, on May 3, 2007, the ALJ issued a lengthy written order denying Zolman's claim for permanent total disability, denying her request for change of physician, and ordering Pinnacol to pay for “reasonable and necessary post MMI maintenance medical treatment including Lidoderm patches.” The award of post–MMI medical benefits was “subject to [Pinnacol's] right to contest relatedness, reasonableness, or necessity of any requested medical treatment.”

The order was based on the following findings of fact and conclusions of law that are pertinent to this appeal:

• Drs. Danahey, Primack, and Yamamoto each testified that Zolman's compression fracture had healed and that no further treatment was needed to maintain the healed fracture;

• Zolman's inability to work was not causally related to her industrial injuries;

• Zolman did not make a proper showing for a change of physician to Dr. Yamamoto;

• Zolman did not prove by a preponderance of the evidence that Dr. Yamamoto's treatment recommendations would maintain MMI or prevent further deterioration of her condition;

• Dr. Primack disagreed with Dr. Yamamoto's recommendation for an epidural injection because Zolman did not have discogenic pain;

• Dr. Primack disagreed with Dr. Yamamoto's other treatment recommendations, except for the Lidoderm patch; and

• Dr. Primack's opinions concerning post–MMI medical care were found to be credible and persuasive.

The record indicates that Zolman did not appeal the ALJ's May 3, 2007, administrative order.

C. Medical Opinions After the Administrative Order

Zolman continued with multiple doctor visits after the ALJ's order. On June 5, 2007, she returned to Dr. Primack because Pinnacol scheduled a follow-up examination for her. Even though Zolman told Dr. Primack that she was feeling “no better and no worse,” Dr. Primack ordered a CAT scan of the lumbar spine to check the position of the fracture. On June 11, 2007, after reviewing the CAT scan, Dr. Primack concluded that there was no change to Zolman's L5 fracture, that she had “multilevel degenerative disc disease which is independent of her work injury,” and that there was no longer “a work-related component to her back pain.” Accordingly, he concluded that medication and further follow-up with Zolman would not be needed.

After this visit, on June 25, 2007, Zolman submitted to Pinnacol a written request for a change of physician to Dr. Yamamoto. This request was based on Zolman's allegation that she was entitled to post–MMI maintenance medical care, but that Dr. Primack was refusing to provide her with any further care for her back pain.

Amanda Cooper, a Pinnacol claims representative, investigated Zolman's allegation further. Cooper wrote to Dr. Primack to inquire why he declined to prescribe a Lidoderm patch for Zolman. He replied that, in his medical opinion and based on his recent examination of Zolman, he no longer felt that a Lidoderm patch would be specific to her work injury; that Zolman needed to stop smoking; and that no further treatment other than Zolman performing her home exercise treatment program was necessary at that time. Pinnacol subsequently denied Zolman's change of physician request.

Despite this denial, Zolman returned to Dr. Yamamoto on two occasions, July 27 and August 6, 2007, relying on Medicare benefits to pay for her visits and continued treatment. Dr. Yamamoto assessed Zolman with mechanical low back pain and lumbar strain, in addition to the closed lumbar fracture. He then recommended a course of ongoing treatment that closely...

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