Opinion
C.A. No. N16C-10-198 JRJ
01-24-2019
SCOTT BRADLEY, Plaintiff-Below, Appellant, v. DONEGAL MUTUAL INSURANCE COMPANY, Defendant-Below, Appellee.
Jonathan B. O'Neill, Esquire, Kimmel, Carter, Roman, Peltz & O'Neill, 56 W. Main Street, 4th Floor, P.O. Box 8149, Newark, Delaware, Attorney for the Appellant. Colin M. Shalk, Esquire, Casarino, Christman, Shalk, Ransom & Doss, 1007 N. Orange Street, Suite 1100, P.O. Box 1276, Wilmington, Delaware, Attorney for the Appellee.
UPON APPEAL FROM INSURANCE COMMISSIONER ARBITRATION PANEL AND DECISION AFTER NON-JURY TRIAL
Jonathan B. O'Neill, Esquire, Kimmel, Carter, Roman, Peltz & O'Neill, 56 W. Main Street, 4th Floor, P.O. Box 8149, Newark, Delaware, Attorney for the Appellant. Colin M. Shalk, Esquire, Casarino, Christman, Shalk, Ransom & Doss, 1007 N. Orange Street, Suite 1100, P.O. Box 1276, Wilmington, Delaware, Attorney for the Appellee. Jurden, P.J.
I. INTRODUCTION
This is an appeal of an Insurance Commissioner Arbitration Panel (the "Arbitration Panel") decision. The issue before the Arbitration Panel was whether Bradley was entitled to lost wages as a result of a motor vehicle accident on November 24, 2015 (the "November 2015 MVA") and his subsequent three-level cervical spine fusion ("three-level fusion"). On October 11, 2016, the Arbitration Panel ruled in favor of Donegal Mutual Insurance Company ("Donegal") and denied Bradley's claim for lost wages.
On appeal, Bradley seeks $34,113.50 of lost wages for the period of July 10, 2016 to November 24, 2017. He argues this amount is the difference between the lost wages Donegal allegedly owes under Bradley's personal injury protection policy ("PIP") and the lost wages already paid by the Workers' Compensation carrier, Sedgwick. The difference in lost wage payments arises because, under the PIP policy, Donegal covers eighty percent of the injured insured's salary, while under Workers' Compensation, Sedgwick covers two-thirds of the salary at the time of the work-related accident. See Joint Pretrial Stipulation, E-File 62433566.
See Court Trial Ex. 1. The only evidence in the record setting forth the Arbitration Panel's decision is the "Arbitration Panel Award" form. The "Arbitration Panel Award" states "Finding in Favor of: Respondent" and "Basis of Findings: Panel found that wages sought were not causally connected to motor vehicle collision." Id. The "Arbitration Panel Award" does not specify a range for the denial.
On October 25, 2016, Bradley appealed the Arbitration Panel's decision to this Court, and asked this Court not only to review de novo the Arbitration decision, but also to determine the proper lost wage calculation, an issue both parties agree was not addressed by the Arbitration Panel. The parties requested a bench trial so that both sides could present evidence and legal arguments.
Compl., E-File 59747013, ¶ 5; see also Trial Tr., E-File 62844043, 99:12-19, 100-103, 104-105. During an exchange between the Court and Bradley's counsel the following was stated:
Q: [The Court asked] So are you saying that the arbitration panel was not asked and did not decide the issue of which pay rate was correct?Trial Tr. 104-105.
A: [Bradley's counsel said] Correct, they did not.
Q: So are you stipulating that I can hear that on an appeal even though it wasn't presented to the arbitration panel, because my review is de novo on the record below by the arbitration panel, I'm a little bit concerned about where that leaves me in terms of the authority to hear that now.
A: But, Your Honor, it wasn't raised as an issue. I had no idea this was an issue until recently.
Pursuant to 21 Del. C. § 2118(j)(5), the losing party has the right to "appeal de novo to the Superior Court" an insurance arbitration "administered by the Insurance Commissioner or the Insurance Commissioner's nominee." Under § 2118(a)(2), the insurer must pay the insured, up to its limits, "reasonable and necessary expenses incurred within 2 years from the date of the accident." On appeal, the plaintiff bears the burden of proof to show by a preponderance of the evidence that the lost wages sought are reasonable, necessary and proximately related to the accident.
See 21 Del. C. § 2118(j)(1), (5). To preserve the right to appeal the appellant must file notice within 30 days of the date of the decision being rendered. Id. § 2118(j)(5). Bradley's appeal is properly before the Court because he filed notice within 30 days. See Compl. ¶ 5 (arbitration decision rendered October 11, 2016).
21 Del. C. § 2118(a)(2).
See Murphy v. United Services Auto Ass'n, 2005 WL 1249374, at *2 (Del. Super. 2005). During a post-trial teleconference, both parties stated on the record that Bradley had the burden of proof.
The Court held a bench trial on October 8, 2018. During the trial, the parties had trouble stating the exact issues argued before the Arbitration Panel and whether they had a complete set of the exhibits submitted to the Arbitration Panel. Donegal's counsel explained that the Arbitration Panel is not a record court and is designed for twenty minute hearings. At trial, Bradley argued that the lost wage calculation should be based on the "Wage and Salary Verification" form Bradley initially submitted to Donegal. Donegal disagreed, arguing that the lost wage calculation was properly based on Bradley's 2014 Schedule K-1 (Form 1065) (the "2014 K-1"), and Bradley was estopped from arguing otherwise because he never objected to Donegal using the 2014 K-1 and he accepted the lost wage payments based on that form, not his initial "Wage and Salary Verification" form. Donegal further contends that when Bradley voluntarily submitted the 2014 K-1 to Donegal through counsel (in response to Donegal's request for additional salary information), Bradley understood and agreed that Donegal would use the 2014 K-1 to calculate his lost wages. The following key dates are mentioned throughout the Court's opinion:
See infra note 117 and accompanying text.
Trial Tr. 98, 106. The only record from the Arbitration Panel sets forth the dates of filing and the hearing, the panel members, and that a decision was rendered in favor of Donegal. See Certification Letter for Appeals, E-File 59852675; see also Court Trial Ex. 1.
Trial Tr. 118-119.
Trial Tr. 129-130.
March 13, 2013: Bradley injured his neck and right shoulder in a motor vehicle accident.
September 19, 2013: Bradley aggravated his neck and right shoulder injuries and injured his lumbar in a motor vehicle accident.
October 14, 2013: Bradley exacerbated his neck, right shoulder and lumbar injuries in a motor vehicle accident.
August 20, 2015: Dr. Boulos recommended that Bradley undergo a two-level cervical fusion.
November 24, 2015: Bradley was involved in a fourth motor vehicle accident. Donegal insured the vehicle Bradley was driving.
November 30, 2015: Dr. Zerefos removed Bradley from work until December 15, 2015.
December 3, 2015: Bradley saw Dr. Boulos who removed Bradley from work as totally disabled.
December 28, 2015: Dr. Boulos and Bradley agree to schedule a three-level fusion.
January 21, 2016: Donegal paid Bradley lost wages for the "Service Period" November 24, 2015 to December 24, 2015.
March 29, 2016: Dr. Boulos performed a three-level fusion surgery on Bradley.
June 16, 2016: Dr. Spellman, hired by Donegal, performed a records review of Bradley's medical records.
June 29, 2016: Donegal paid Bradley lost wages for the "Service Period" June 30, 2016 to July 9, 2016.
July 9, 2016: Donegal cut off lost wage payments to Bradley.
September 29, 2016: The end date for the last disability note Dr. Boulos gave Bradley.
December 5, 2016: Dr. Boulos performed lumbar surgery on Bradley. Bradley does not assert that this surgery is related to the November 2015 MVA.
Early 2017: Sedgwick agreed to pay Bradley lost wages based on the wages he earned while working Sears.
May 16, 2017: Dr. Crain performed shoulder surgery on Bradley.
November 30, 2017: Dr. Boulos released Bradley back to work with limitations.
A precise date is not in the record because the agreement between Sedgwick and Bradley is undated and Bradley testified that he thought "that was in the beginning of 2017, I don't know the exact date." Trial Tr. 60:6-8, 61:1-20.
The record does not contain an exact date for Bradley's shoulder surgery but Dr. Boulos' May 19, 2016, note states that Bradley underwent shoulder surgery three days prior. See Pl. Trial Ex. 2, Boulos Note, May 19, 2017. Bradley filed a separate PIP suit, which is for his shoulder surgery. See Bradley v. Donegal Mut. Ins. Co., N18C-08-176 (Del. Super. 2018).
II. EVIDENCE PRESENTED AT TRIAL
On November 24, 2015, Bradley was injured in a motor vehicle accident when his work van was rear-ended ("the November 2015 MVA"). At the time of the November 2015 MVA, Donegal insured Bradley's work van. The Donegal insurance policy included a PIP limit of $300,000.
See Joint Pretrial Stipulation, E-File 62433566, ¶ 1, Sept. 10, 2018. This is the second Joint Pretrial Stipulation filed by the parties. The first Joint Pretrial Stipulation, E-File 62413551, Sept. 5, 2018, was amended by the second Joint Pretrial Stipulation. See Letter from Colin M. Shalk, Esquire to the Honorable Judge Jurden regarding Pretrial Stipulation, E-File 62433566.
Compl. ¶ 1; see also Joint Pretrial Stipulation.
See Joint Pretrial Stipulation.
Bradley's Prior Accidents and Related Injuries
Prior to the November 2015 MVA, Bradley was involved in three motor-vehicle accidents in 2013 and sustained injuries to his neck, right shoulder and lumbar (collectively "the 2013 Accidents"). At the time of the 2013 Accidents, Bradley worked as a refrigeration technician for Sears. After the 2013 Accidents and leading up to the November 2015 MVA, Bradley was working as a HVAC technician for Advanced Solar and Heating ("Advanced Solar"), where he earned $25 per hour and 4% commission on gross sales. During this time period, Bradley was treated non-surgically with physical therapy and cervical and lumbar injections.
Trial Tr. 23:13-15. The first accident, on March 13, 2013, caused injuries to Bradley's neck and right shoulder. Trial Tr. 23:22. The second accident, on September 19, 2013, caused an aggravation of Bradley's neck and right shoulder injuries and an injury to his lumbar. Trial Tr. 24:11-16. The third accident, on October 14, 2013, worsened all three injuries. Trial Tr. 24:21-22; see also Pl. Trial Ex. 2, Medical History Form Sept. 9, 2016.
See Trial Tr. 23:5-22.
Trial Tr. 25:16-21.
Bradley starting seeing Dr. Boulos, Dr. Downing, Dr. Zerefos and Dr. Crain in 2013. Trial Tr. 23-24.
Bradley's physical therapy was performed by Dr. Zerefos. See Pl. Ex. 4; see also Dr. Boulos Deposition, ("Boulos Dep.") 38:8-9, Oct. 5, 2018. The only medical records from Dr. Zerefos in evidence are physical therapy notes from November 30, 2015 to March 28, 2016 and a prescription from Dr. Zerefos stating Bradley was totally disabled and removed from work between January 16, 2018 and February 28, 2018. See Pl. Trial Ex. 4. The notes do not cover the period after Bradley's three-level fusion and the prescription is for a period of time not at issue in this case.
Trial Tr. 48:20-23. Dr. Downing treated Bradley with injections for his neck and lumbar injuries. See Trial Tr. 49-50.
Two-Level Cervical Fusion Recommended
In July 2015, Bradley's treating physician, Dr. Boulos, ordered an MRI of Bradley's neck because the last MRI was two years old and Bradley was still experiencing symptoms in his neck. On August 20, 2015, during an office visit with Dr. Boulos, Bradley and Dr. Boulos discussed the recent MRI results and Dr. Boulos' recommendation that Bradley undergo a two-level cervical fusion. Bradley testified that although Dr. Boulos recommended a two-level fusion, surgery was not scheduled and he did not plan on having the surgery. Instead, Bradley researched alternatives to a cervical fusion and sought a second opinion.
Trial Tr. 47:3-10.
Boulos Dep. 11:5-9; see also Trial Tr. 27:6-14 ("Dr. Boulos had recommended a two-level surgery."). Dr. Boulos' August 20, 2015, note states: "[Bradley] will likely require a 2 level anterior cervical discectomy for decompression and subsequent stabilization either with a disc replacement morrow versus a fusion." Def. Trial Ex. 7, Boulos Note, Aug. 20, 2015. It further states that the "Plan" is to schedule surgery, which "may require two level cervical surgery acdf vs tdr c4/5, 5/6." Id.
Trial Tr. 27:6-14, 41-42; see also Boulos Dep. 11:1-12, 12:11-15 (surgery was never scheduled and Bradley continued to work full time).
Trial Tr. 42-43. Bradley did not get a second opinion until after the 2015 November MVA. Trial Tr. 42-43.
On September 16, 2015, Bradley saw Dr. Downing for cervical injections. Dr. Downing's office note states that Bradley was waiting on his workers' compensation claim before scheduling the two-level cervical fusion.
Bradley testified that he was awaiting an Industrial Accident Board ("IAB") hearing, which would decide whether Sedgwick, the Workers' Compensation carrier, was obligated to pay for his April 2015 shoulder surgery and Dr. Downing's injection treatment. Trial Tr. 43-44, 45:22-7; see also Pl. Trial Ex. 2, Boulos Note, Dec. 3, 2015 (stating past surgical history includes "[right] shoulder surgery-04/2015). The IAB hearing took place in January 2016 and the IAB ruled in favor of Bradley. Trial Tr. 52:12-20.
The September 16, 2015 note from Dr. Downing's office states:
Mr. Bradley returns to the office for reassessment. He states since he was last seen in our office, he underwent neurosurgical evaluation by Dr. Boulos with his updated cervical MRI imaging study. He states Dr. Boulos has recommended two-level cervical fusion. Mr. Bradley states he has not been able to schedule the surgery due to insurance reasons.Def. Trial Ex. 5.
November 2015 MVA
Bradley testified that as a result of the November 2015 MVA he injured his neck, right shoulder and lumbar, and "had issues with [his] left side after that, as well, [his] upper left - - arm . . . ." Dr. Boulos testified that on December 3, 2015, during Bradley's first office visit with Dr. Boulos after the November 2015 MVA:
Trial Tr. 30:7-14.
[Bradley] notified us that he was in a motor vehicle accident that was on 11/24 of 2015. He had been rear-ended. He was now having worsening left-sided arm pain in addition to the right-sided pain that he had previously, as well as worsening pain in his neck.Dr. Boulos testified further that Bradley was now complaining of "a change and an increase in the symptoms." Dr. Boulos' December 3, 2015, note states that the "Reason For Visit" was a "follow up," "increased pain in back, legs following MVA on 11/24/15 (rear-ended), now has left arm pain." The note goes on to state that "[Bradley] is having more pain. I did recommend that he have an MRI to assess if there is been in [sic] anatomical change in his cervical spinal segments."
Boulos Dep. 13:3-17; see also Dr. Spellman Deposition, ("Spellman Dep.") 34:20-22, Sept. 17, 2018.
Boulos Dep. 13:16-17.
Pl. Trial Ex. 2, Boulos Note, Dec. 3, 2015.
Id.
Dr. Boulos and Bradley testified that as a result of the November 2015 MVA Bradley aggravated his neck, lumbar and right shoulder injuries from the 2013 Accidents. Six days after the November 2015 MVA, on November 30, 2015, Bradley saw Dr. Zerefos, who removed Bradley from work until December 15, 2015. Dr. Boulos then removed Bradley from work on total disability from December 12, 2015 until December 28, 2015 to have an MRI study. On December 28, 2015, Dr. Boulos continued the total disability pending surgery without a specified end date for Bradley's total disability.
Trial Tr. 30:11-14, 41:5-8; see also Boulos Dep. 24:3-11 (Dr. Boulos testified that "[a]fter the [November 2015 MVA], [Bradley's] symptoms -- and clinical syndrome had become such that he could not -- no longer work.").
Pl. Trial Ex. 3, Dr. Zerefos Prescription, Nov. 30, 2015 ("Patient is totally disabled until 12/15/15. Disability past this date as per Drs. Boulos, Crain, or Downing. Patient is known to them."); see also Trial Tr. 30:17-19; Boulos Dep. 14:20-23.
Pl. Trial Ex. 3, Boulos Note, Dec. 17, 2015.
Pl. Trial Ex. 3, Boulos Note, Dec. 28, 2015. On December 28, 2015, Bradley and Dr. Boulos agreed that Bradley would undergo the three-level fusion. Def. Trial Ex. 7.
Bradley Files PIP Claim
Following the November 2015 MVA, Bradley filed a PIP claim with Donegal for lost wages. Donegal assigned Bradley's PIP claim to a Claims Adjuster, Deborah Dougherty. Dougherty contacted Bradley to obtain information relevant to his claim and sent him forms to be completed and submitted to Donegal. Dougherty testified that after reviewing Bradley's submission, Donegal requested the last three years of Bradley's tax returns to verify his salary because "Donegal routinely requests the past three years in tax returns," of a self-employed or 1099 individual who files a PIP claim. Dougherty further testified that Donegal requested this information in an effort to have a more accurate monthly or weekly wage. Dougherty testified that in response to Donegal's request, Bradley provided Donegal with his 2014 K-1 because he became a 1099 individual in 2014. Donegal accepted the 2014 K-1 as a substitute and calculated Bradley's lost wages based on the 2014 K-1.
Trial Tr. 72:17-19; see also Joint Pretrial Stipulation ¶ 1.
Trial Tr. 72:17-21, 73:3-10.
Pl. Trial Ex. 6. When Bradley submitted the Wage and Salary Verification form for his PIP claim, he calculated his salary based on the thirteen weeks leading up to the November 2015 MVA. The form states that Bradley's wages were $12,954 and commissions were $4,100 for a total of $17,054.
Trial Tr. 74:5-18.
See Trial Tr. 74:7-9.
Def. Trial Ex. 1; see also Trial Tr. 74:12-19. Bradley's 2014 K-1 showed that his self-employment earnings for 2014 were $46,893.
Trial Tr. 74:17-19, 75:16-21; see also Def. Trial Ex. 1.
Then on January 21, 2016, Donegal began paying Bradley's medical bills and lost wages of $3,126.20 per month. First, Donegal sent Bradley, in the form of back-pay, lost wages for the period of November 24, 2015 to December 24, 2015. Afterwards, Donegal paid Bradley lost wages in monthly increments.
See Pl. Trial Ex. 1; see also Def. Trial Ex. 2. According to the PIP log, Donegal paid various medical bills between November 30, 2015 and March 23, 2016. See Pl. Trial Ex. 1; see also Def. Trial Ex. 2.
See Pl. Trial Ex. 1; see also Def. Trial Ex. 2. Bradley provided his 2014 K-1 to Donegal, which it used to calculate his lost wages. Donegal paid eighty percent of Bradley's gross wages. See Joint Pretrial Stipulation ("Nature of the action" "by Defendant"); see also Trial Tr. 76:2-9. Bradley disputes Donegal's calculations. Bradley argues that the lost wages should be calculated based on the Wage and Salary verification form Bradley submitted and, therefore, should be $5,244 per month or $1,311 per week.
See Pl. Trial Ex. 1; Def. Trial Ex. 2.
See Pl. Trial Ex. 1; Def. Trial Ex. 2.
Bradley Undergoes Three-Level Cervical Fusion
On March 29, 2016, Dr. Boulos performed a three-level cervical fusion on Bradley. Post-surgery, Bradley underwent physical therapy on his neck. In response to a question about that, Bradley testified:
The three levels fused in Bradley's cervical spine are C4-5, C5-6, and C6-7. See Pl. Trial Ex. 2, Boulos Note, Apr. 8, 2016 ("first postop check up"); see also Boulos Dep. 41:16-24, 45:7-17 (initial surgery recommendation was for C4-5 and C5-6, C6-7 was the third level); Spellman Dep. 9-10, 16-17.
Trial Tr. 33:4-14. Beyond saying Bradley was progressing, the medical records, submitted into evidence, do not provide information on the progression of his rehabilitation from the three-level fusion. See generally Pl. Ex. 2; Pl. Ex. 4.
Yeah, [physical therapy] actually made a difference after the surgery of helping me regain strength in my neck and alleviating some of the post-surgery issues. It got to a point where my right shoulder issue and the neck were undiscernible and I was still having issues and I continued to see Dr. Crain on that issue and then he determined that there was [sic] issues in my right shoulder that kind of had to stop my physical therapy until I had that dealt with.
The Court asked Bradley, "what did you mean by 'undiscernible' when you were saying the issues were undiscernible?" Bradley responded, "[m]eaning that at first I wasn't sure whether the issue here was from my neck or from my right shoulder either radiating up or down and then it became apparent after a period of time of physical therapy." Trial Tr. 33:15-21.
Trial Tr. 33:6-14.
On June 16, 2016, at Donegal's request, Dr. Spellman performed a records review of Bradley's medical file. According to Dougherty and Dr. Spellman, Donegal opted for a records review rather than a medical exam because Bradley was recovering from his three-level fusion.
Trial Tr. 77:19-21.
See Spellman Dep. 32:2-4, 32:19-23; Trial Tr. 77:8-18, 80:6-10 (Dougherty testimony).
Donegal sent what ended up being its last payment to Bradley on June 29, 2016 for the "Service Period" of June 30, 2016 to July 9, 2016. Then on July 9, 2016, less than four months after Bradley's three-level fusion, Donegal stopped paying Bradley for lost wages. From, July 9, 2016 until early 2017 Bradley had no source of income. In early 2017, Sedgwick agreed to pay for the three-level fusion and two-thirds of Bradley's lost wages from July 10, 2016 until "ongoing"—based on Bradley's earnings, while employed at Sears in 2013.
The last payment, which was the only payment sent before the end of the "Service Period," was for $1,042.07. See Pl. Trial Ex. 1; see also Def. Trial Ex. 2.
Trial Tr. 61:11-12, 76-77, 77:7-18, 78:1-2.
Trial Tr. 60-61. The record does not contain the exact date on which Sedgwick agreed to pay Bradley lost wages. The "State Of Delaware Office Of Workers' Compensation Agreement As To Compensation" form is signed but not dated. See Def. Tr. Ex. 3.
Trial Tr. 60-61. Sedgwick agreed to pay $575.67 in lost wages based on Bradley's weekly wages while working for Sears. Def. Trial Ex. 3; see also Trial Tr. 118. Sedgwick paid Bradley lost wages for the period beginning July 10, 2016. In Bradley's "Agreement as to Compensation" with Sedgwick, it states that the "Date of Injury" is "3/14/13" and the "Date Disability Began" "7/10/16." Def. Trial Ex. 3 (disability date starts day after Donegal cut off Bradley). Bradley obtained Workers' Compensation benefits based on Barkley v. Johnson Controls, 2003 WL 187278 (Del. Super. 2003). Trial Tr. 66-67. In Barkley, the Court held that if a Workers' Compensation carrier covers a claimant's first accident, then a subsequent injury is compensable if it follows as a direct and natural result of the primary compensable injury and the subsequent injury is not a result of claimant's negligence or fault. See Barkley, 2003 WL 187278, at *2-4.
On September 9, 2016, Dr. Boulos gave Bradley a disability note that states Bradley was totally disabled through September 29, 2016. September 29, 2016 was six months after the three-level fusion. This note was the last disability note Bradley received from Dr. Boulos. Bradley testified he stopped requesting disability notes from Dr. Boulos "[b]ecause nobody needed them because Donegal cut me off, so there was no purpose to continue getting notes for somebody that wasn't going to pay for my lost wage."
Pl. Trial Ex. 2, Boulos Note, Sept. 9, 2016 ("Plan" was for Bradley to have a follow up in two months).
Trial Tr. 67-68. Bradley testified that when Sedgwick paid him lost wages it did not require disability notes. Trial Tr. 68:18-22. Dr. Boulos testified that his office usually gives either the patient or the employer a disability slip to continue the patient on disability. Boulos Dep. 34:14-21.
On September 29, 2016, Bradley saw Dr. Boulos, but Dr. Boulos' note from this visit does not mention the three-level fusion. Instead, Dr. Boulos' September 29, 2016, note states that Dr. Boulos and Bradley decided to move forward with lumbar surgery. After the September 29, 2016 appointment with Dr. Boulos, Bradley continued to receive physical therapy related to his three-level fusion up until his lumbar surgery on December 5, 2016.
Pl. Trial Ex. 2, Boulos Note, Sept. 29, 2016. Dr. Boulos' September 29, 2016, note states: "Active Problems" "Cervical Radiculopathy," "Intervertebral Disc Disorder Lumbar with Radiculopathy." Id. "Reason For Visit" is for a "follow up, no new studies or conservative treatments since last visit-has injection with Dr. Downing next week scheduled, pain is 7/10 at worst, 4/10 at best, pain interferes with ADL's, continues with back pain that radiates into groin, bilateral leg and foot pain with tingling and numbness of feet." Id. The note also states:
This is a gentleman who is presenting to us with lumbar spinal pathology. He has been through multiple motor vehicle accidents in 2013 as well as a set subsequent morning 2015 [sic]. These have resulted in him suffering from intractable back and more poignantly right hip and leg pain. He has been through extensive nonoperative management in an attempt to manage this pain. He's been through multiple rounds of physical therapy as well as multiple rounds of injections and or ablations. None of these treatments have been successful in alleviating his symptoms long-term. His imaging does reveal neural foraminal compromise secondary to disc and facet pathology and that this is the source of his problem. This has obviously arisen from the multiple accidents that he has suffered from. We discussed today in the office in [sic] and he would like to proceed with any surgical intervention at this time. We removed we discussed [sic] doing a 2 level namely L4/5 as well as L5-S1 unilateral decompression with essentially making more room for his nerves by shaving the joint down posteriorly and the disc down anteriorly in order to reopen the channel within nerves are exiting the spine [sic]. He understands the risks and benefits of such a procedure and he would like to proceed.
Boulos Dep. 37-38. The following is an excerpt of Dr. Boulos' deposition:
Q: As you sit here today, and assuming that the [lumbar] surgery was in December 2016, and we know that the cervical surgery was on March 29, 2016, was he still in PT for cervical results, that is, the cervical consequences to the cervical spine, as of December 2016? Do you know?
A: I believe he was in PT.
Q: Okay. For the neck issue?
A: Yes . . . . Dr. Zerefos was actually doing the hands-on physical therapy. And he was seeing him, it would seem to be, looks like weekly during the period of time between, you know, 2015, 2016.
On November 11, 2016, Bradley saw Dr. Boulos for a "follow up, [for] neck pain and Patient has received PT for 6 weeks, 3 lumbar injections." Dr. Boulos' November 11, 2016, note states that Bradley's "Active Problems" are "Cervical Radiculopathy" and "Intervertebral Disc Disorder Lumbar with Radiculopathy." Dr. Boulos' "Assessment" from this date states "[t]his is a gentleman status post cervical spine surgery. He is recovery [sic] very well postoperatively." The note further states that the "Plan" is for a "[f]ollow-up [appointment] is required [in three months]."
Pl. Trial Ex. 2, Boulos Note, Nov. 11, 2016.
Id.
Id.
Id.
On February 17, 2017, Bradley saw Dr. Boulos. Dr. Boulos' February 17, 2017, note states that Bradley's "Active Problems" are "Cervical Radiculopathy" and "Intervertebral Disc Disorder Lumbar with Radiculopathy." The note states that Bradley saw Dr. Boulos for a "follow up, no new studies, had injection of AC joint by Dr. Crane which has aggravated neck." The note further states that Bradley "made significant improvements in his cervical spine pain as well as in his arm symptoms."
Pl. Trial Ex. 2, Boulos Note, Feb. 17, 2017.
Id.
Id. The record does not provide when Dr. Crane performed the AC joint injection.
Pl. Trial Ex. 2, Boulos Note, Feb. 17, 2017. Dr. Boulos' February 17, 2017, note states: "This is a gentleman who has undergone [an] anterior cervical spinal surgery approximately 11 months ago. He has made significant improvements in his cervical spine pain as well as in his arm symptoms. He does have some persistent pain in the shoulder [which] Dr. Crane is treating." Id.
Then on May 16, 2017, Bradley underwent right shoulder surgery. According to Dr. Boulos' May 19, 2017 note, Bradley continued to have neck pain:
Pl. Trial Ex. 2, Boulos Note, May 19, 2017 (stating "had [right] shoulder surgery 3 days ago").
[a]t this stage we have fixed the neck and Dr. Crane has done a repair to his shoulder as well. He still has surgical bandages on his shoulder. Once he is cleared from Dr. Crane's perspective to do some physical therapy and encouraged him to do physical therapy for the cervical spine as well as a shoulder [sic] in an effort to get him through these final stages of healing from this accident.
Id. Dr. Boulos' May 19, 2017, note further states: "Reason For Visit" - "continues with neck pain, [right] arm and hand nerve pain, tingling and numbness." Id. "Plan" - "cervical disc disorder [with] radiculopathy, mid-cervical region. Therapy: Evaluate and Treat. Instructions: Treatments per week 2 for 6 weeks." Id.
In addition to Bradley's appointments with Dr. Boulos for his three-level fusion, Bradley had additional appointments with Dr. Boulos for his lumbar injury. In particular, Bradley saw Dr. Boulos on December 16, 2017; January 13, 2017; and March 17, 2017. Then on May 26, 2017, Bradley saw Dr. Boulos, again, for his lumbar injury. Dr. Boulos' May 26, 2017, note states Bradley had completed six weeks of physical therapy and injections and "he is going to need to do some physical therapy and work hardening [for his lumbar] prior to being able to go back to work." On November 30, 2017, Dr. Boulos released Bradley back to work with limitations.
See generally Pl. Trial Ex. 2.
Pl. Trial Ex. 2, Boulos Note, Mar. 26, 2017. Dr. Boulos' March 26, 2017, note states: "This is a gentleman status post decompression lumbar spine. His back and legs are feeling quite good. He is going to need to do some physical therapy and work hardening prior to being able to go back to work." Id. "Plan" - "Radiculopathy, lumbar region. Therapy: Work Hardening. Instructions: Treatments per week _3_for___6 weeks." Id.
Trial Tr. 37:9-14. Dr. Boulos released Bradley with a lifting limitation. Bradley was not to lift more than 40 pounds. See Pl. Trial Ex. 2.
Expert Testimony
Dr. Spellman
Based on his review of Bradley's medical records, Dr. Spellman testified by deposition that Dr. Boulos' two-level cervical fusion recommendation was related to the 2013 Accidents and that Dr. Spellman would not have been surprised if Dr. Boulos had recommended a three-level fusion as a result of the 2013 Accidents. According to Dr. Spellman, "[b]ased on the information available to me, you know, without seeing the patient, my recommendation would be three-levels were significantly diseased and if you did the two, you'd worry about them having to come back to do the third." In addition, Dr. Spellman testified, in response to a question about the 2013 MRI, on direct examination:
Dr. Spellman testified that the important records related to Bradley's cervical spine issues are: (1) records of his cervical spine injections, (2) ER records, (3) records regarding the recommendation for surgery and (4) MRI reports and images. See Spellman Dep. 4:21-24, 5:1-5. Dr. Spellman testified that he did not review any of Bradley's records after January 13, 2017. Id. at 26:13-16.
Spellman Dep. 12:5-15. Dr. Spellman qualified his recommendation of doing a three-level fusion by the fact that he did not see Bradley. Id. at 13:18-23. Later on direct examination, Dr. Spellman contradicted himself when he testified that before the November 2015 MVA, Dr. Boulos "was going to do a three-level." Id. at 17:6-9. However, Dr. Boulos' notes, his testimony, and the testimony of Bradley all state that prior to the November 2015 MVA the only surgery contemplated was a two-level fusion and the three-level fusion was not discussed until December 2018.
Spellman Dep. 13:18-23.
At three levels, C-4-5, C5-6 and C6-7 there were -- at all levels there was posterior protrusion of the disc behind the annulus. In other words, the disc had pushed out or herniated beyond the annulus with encroachment on the nerves with associated -- two things. Basically encroached on the nerves. There are what are called bony reactive changes where his joints became arthritic, the bone on either side of the joint makes more bone to try to stabilize things, if you will. And in the hip, that extra bone formation is not a problem. When it happens in the spine, that extra bone formation encroaches on the channels that the nerves run out of. And it looked to me like he had just -- looking at the MRI, I concluded the three levels would be responsible for symptoms.Dr. Spellman also testified that he did not see a difference between the 2013 MRI and the December 2015 MRI. Dr. Spellman opined that Bradley and Dr. Boulos were "temporizing" prior to the November 2015 MVA but "ultimately [Dr. Boulos] concluded before the [November 2015 MVA], that Bradley needed a multi-level fusion." According to Dr. Spellman, the recovery from a three-level fusion is:
a big multi-factorial, depending on the way surgery was done and the quality of the host tissue and, you know, there's always a roll of the dice too type of thing. But . . . generally speaking, the recovery from a three-level surgery takes about as long as a two-level surgery. The same process happens, but it doesn't happen sequentially, it happens concurrently at the three levels.
Spellman Dep. 11-12.
Dr. Spellman testified that based on his records review, he believes all three levels were responsible for Bradley's symptoms. Spellman Dep. 12:5-7.
Spellman Dep. 14:14-21. Dr. Spellman testified that he personally compared the two MRI images. He disagrees with the amended December 2015 MRI report, in which the Radiologist reports a difference. Id. at 14:17-21. The Radiologist's report states:
In my initial report I did not refer directly to the area of disc herniation and annular tear at C6-7 with comparison to the previous study of July 30, 2015. The previous exam showed a bulging disc at the same level toward the right neural foramen but a frank irregular tear and herniation with more significant foraminal stenosis is now present there on the current study.Pl. Trial Ex. 3 (Addendum to the Initial Report).
Temporizing: avoid making a decision or committing oneself in order to gain time. Temporizing, Dictionary.com, https://www.dictionary.com/browse/temporize.
Spellman Dep. 9:13-16.
Id. at 18:14-18.
Dr. Boulos
Dr. Boulos testified by deposition that Bradley's disability and three-level fusion were reasonable, necessary and related to the November 2015 MVA:
before the [November 2015 MVA Bradley] was still working . . . [while injured and] we were able to manage him with the therapy and the injections, and he was still able to work. After the [November 2015 MVA], his symptoms had - and his clinical syndrome had become such that he could not - no longer work.Dr. Boulos testified that on December 3, 2015, Bradley complained of increased pain in his right arm and neck and new pain in his left arm. This prompted Dr. Boulos to order a new MRI of Bradley's neck (the "December 2015 MRI"). On December 28, 2015, Dr. Boulos reviewed the December 2015 MRI with Bradley. In Dr. Boulos' opinion, the December 2015 MRI was consistent with Bradley's subjective complaints because it shows "progression of his problems, again including worsening at the -- at the 6-7 [cervical] level."
Boulos Dep. 23-24. Dr. Boulos testified that after the November 2015 MVA, Bradley "had more symptoms on the left, when he initially had more symptoms on the right, and he has it now bilaterally." Boulos Dep. 16:2-4.
Id. at 13:1-17. Bradley testified that the November 2015 MVA injured his neck, right shoulder and lumbar and caused "issues with [his] left side after that, as well as [his] upper - left arm, actually." Trial Tr. 30:11-14. Dr. Boulos' December 3, 2015, note states, "Reason For Visit" was for "increased pain in back, legs following MVA on 11/24/15 (rear-ended), now has left arm pain." Pl. Trial Ex. 2, Boulos Note, Dec. 3, 2015. The December 3, 2015, note further states:
This is a gentleman who underwent cervical spinal pathology. We will abandon the preparation of getting him set for anterior cervical spinal surgery. This is a Workmen's Compensation injury. They have no record hearing next month. In the meantime . . . he did have an accident. He is having more pain. I did recommend that he have an MRI to assess if there is been [sic] in anatomical change in his cervical spinal segments.
Boulos Dep. 14:8-15.
Id. at 15:10-18.
Dr. Boulos disagrees with Dr. Spellman's opinion that there is no difference between the 2013 MRI and the December 2015 MRI. Dr. Boulos opined that the December 2015 MRI shows a worsening of the cervical spine compared to the 2013 MRI. In particular, Dr. Boulos testified that the December 2015 MRI shows increased disc protrusion causing more stenosis. Dr. Boulos reiterated his opinion that Bradley's three-level fusion is related to the November 2015 MVA because "we had recommended a two-level fusion prior to that accident, and then after the [November 2015 MVA] his disease and his . . . clinical course progressed to the point where we recommended a three-level fusion." Dr. Boulos further opined that, unlike a typical patient whose recovery from a cervical fusion is roughly six months, Bradley's recovery took two years because of the complications from his lumbar and shoulder injuries.
Id. at 27:10-17, 28:9-10.
Id. at 15:19-16:4.
Id. at 15:19-24, 16:1-4, 28:7-10.
Boulos Dep. 18:5-10. Dr. Boulos testified that the November 2015 MVA accelerated the need for surgery, and prior to the November 2015 MVA, Bradley was not a candidate for a three-level fusion. Id. at 18:14-16, 28:16-19. Dr. Boulos' testified on direct examination:
Q: Was the three-level fusion recommended due to the 11/24/15 car accident?Boulos Dep. 17-18.
A: Yes.
Q: And why is that your opinion?
A: Well, we recommended a two-level fusion prior to the [November 2015 MVA], and then after the [November 2015 MVA] his disease and his clinical - clinical course progressed to the point where we recommended a three-level fusion.
Q: And did the [November 2015 MVA] accelerate the need for surgery?
A: Yes.
Boulos Dep. 28-29.
Complications
With respect to factors allegedly complicating Bradley's recovery, Dr. Boulos testified on direct examination and re-direct examination as follows:
Q: Now if Mr. Bradley had been the garden-variety patient in terms of perhaps never having any prior accidents, and you performed a cervical
fusion, whether it's a two level or three level, how long would a norm -- how long would he normally be out of work?Dr. Boulos testified that Bradley was totally disabled in July of 2016 and Bradley's disability was extended to September of 2016. Dr. Boulos further testified that Bradley's lumbar and shoulder injuries complicated his recovery because all three injuries required different forms of treatment and took Bradley "away from doing, you know, different physical therapies for the neck. So that did delay some of the postoperative treatment." Responding to a question from Donegal's counsel as to whether Bradley's other injuries delayed his recovery from the three-level fusion or just kept him as "disabled from something else," Dr. Boulos testified:
A: For the type of work that he does, it could be about six months.
Q: All right. In this case it was two years because of the complicated factors you discussed, correct?
A: Correct.
.....
Q: So if he were to be a typical patient as opposed to an atypical patient, and he undergoes cervical -- a three-level fusion in March of 2016, is it fair to say he'd be out approximately until September or October of 2016? Is that fair?
A: Yes.
Q: Okay. And because he was an atypical patient he was out for a two-year time period. Right?
A: Yes.
Well, I do think his recovery from the cervical spine surgery was delayed because of the further -- you know, these were justified treatments, but treatments nonetheless, that did take his attention away. Again, I'm looking at his -- Dr. Zerefos' notes where he, you know, was trying to do physical therapy, and again, he was having a lot of trouble with tenderness in the shoulder and things like that, which were, of course, limiting his ability to --.
Id. at 28-29, 35:9-17, 57:12-22.
Boulos Dep. 21:12-24.
Id. at 24-25.
Boulos Dep. 39:9-20.
Dr. Boulos testified that Bradley's lumbar injury complicated his rehabilitation:
Dr. Boulos treated Bradley for his cervical fusion and his lumbar injury, which included surgery on December 5, 2016. Boulos Dep. 19:7-12. "We were treating him for his back as well as his neck." Id. at 19:11-12, 33:22-23 (stating Dr. Boulos performed Bradley's lumbar surgery). Dr. Boulos testified that the concurrent treatment of Bradley's lumbar and neck injuries complicated the recovery of Bradley's three-level fusion because Bradley had "to take some time to do some injections to his back in the postoperative course while he was recovering from the neck operation." Boulos Dep. 19-20.
Q: And did [the lumbar injury] complicate the treatment on the neck in terms of recovery?
A: Yes, he did have to take some time to do some injections to his back in the postoperative course while he was recovering from the neck operation.
....
Q: You indicated there was an aggravation of his [lumbar] in this November 2015 accident that, I'll use the word complicated the recovery on the neck. Is that fair to say?
A: Yes.
Boulos Dep. 19-20.
Dr. Boulos also testified that Bradley's rehabilitation was complicated by his right shoulder surgery. Dr. Boulos testified that Bradley was unable to do certain exercises and stretches—which would have helped him recover from the three-level fusion—because his shoulder was immobilized. With regard to the shoulder injury, Dr. Boulos testified:
Boulos Dep. 37:9-13.
Q: Okay. Is it your understanding there was also an injury to the shoulder, the right shoulder?
A: Yes, there was.
Q: Did that complicate the recovery to the neck?
A: Yes.
....
Q: Is it true that Mr. Bradley also had surgery on his right shoulder in May of 2017?
A: Yes.
Q: Did that further slow his return to work as to the cervical spine?
A: Yes.
Q: How so?
A: So he had -- well, he had two sort of complicating injuries; namely the [lumbar] as well as the shoulder, both of which required their own forms of treatment, justifiably, and then that would take him away from doing, you know, different physical therapies for the neck. So that did delay some of the postoperative treatment.
Q: So, for instance, if one has a right shoulder surgery, it's going to delay a period of time where you can get physical therapy on one's neck?
A: Right. Typically you're going to be in a sling for six weeks or so and not be able to do therapy to your neck or your back.
Boulos Dep. 22:7-13, 24-25.
Unfortunately, Dr. Boulos' records do not differentiate between Bradley's three injuries with respect to the impact of each on his total disability. And, on cross-examination, Dr. Boulos testified that he could not "say that all of [Bradley's] time off was just because of the neck operation." Although Bradley argues that his recovery from the three-level fusion was prolonged by his lumbar and shoulder injuries, Dr. Boulos does not explain how those injuries, which are not part of this claim against Donegal, prolonged his recovery from the three-level fusion beyond the typical six months.
Boulos Dep. 35:9-17. The following is an excerpt from the cross-examination of Dr. Boulos:
Q: Okay. Does that file or your file reflect how long you kept [Bradley] out just for the cervical problems?
A: We did not -- during his time when he was out of work we did not differentiate between the lower back versus the shoulder versus the neck. It was simply he was unable to return at the time of the visit.
Boulos Dep. 36:6-8. Dr. Boulos testified: "No, I can't say that all of his time off was just because of the neck operation. In other words, he did have other things that he was going through treatment for during that same period of time, which certainly Dr. Crain would have had him out of work for, I'm sure, several months after his shoulder operation." Id. at 36:6-13.
III. PARTIES' CONTENTIONS
Bradley
Bradley argues that his three-level fusion is related to the November 2015 MVA and his lost wages between July 10, 2016 and November 24, 2017 are reasonable and necessary. Bradley contends that even though he had preexisting injuries from the 2013 Accidents, he was able to work and treat his symptoms non-surgically and did not intend to have a two-level fusion. Bradley asserts that after the November 2015 MVA his injuries were aggravated to the point he could no longer work and the November 2015 MVA worsened his neck injuries to the point that he went from being a two-level fusion candidate to a three-level fusion candidate. Bradley further asserts that he is entitled to lost wages between July 10, 2016 and November 24, 2017, because he was concurrently dealing with injuries to his lumbar and right shoulder, which limited his ability to rehabilitate from his three-level fusion within the normal six-month period. Bradley asserts that he was "never released back to work during the entire two-year period that PIP would be applicable," and, therefore, the lost wages are related to the November 2015 MVA and subsequent three-level fusion.
Trial Tr. 3:16-17.
Trial Tr. 6:12-14.
Finally, Bradley contends that since the three-level fusion is related to the November 2015 MVA the payment of lost wages is reasonable and necessary. In addition, Bradley asserts that Donegal improperly calculated his lost wages based on Bradley's 2014 K-1 instead of the Wage and Salary Verification form he initially submitted. Bradley argues Donegal should have used the Wage and Salary Verification form because it was more current, in that it reflected the last thirteen weeks Bradley was able to work before the November 2015 MVA.
Bradley's counsel, at the post trial teleconference on January 18, 2019, stated on the record that he did not want the different lost wage calculation to apply to the period Donegal already paid because Bradley was made whole for that period.
Donegal
Donegal asserts that Bradley was going to have a cervical fusion regardless of the November 2015 MVA and, therefore, the surgery and subsequent lost wages are not related to the November 2015 MVA but are related to the 2013 Accidents. Donegal points to Dr. Boulos' August 20, 2015, note, which states that Bradley would "likely require a two level interior cervical discectomy . . ." because his symptoms and imaging progressively got worse since the 2013 Accidents. Donegal also points to the September 16, 2015, note from Dr. Downing's office that states that Bradley had not scheduled surgery because of insurance reasons. Furthermore, on December 3, 2015, nine days after the November 2015 MVA, Dr. Boulos' December 3, 2015, note states that he and Bradley would abandon preparations for surgery and "this is a workers' comp injury."
Trial Tr. 124:10-16.
Trial Tr. 126:7-18.
Donegal argues that even if the November 2015 MVA and the three-level fusion are related, Donegal is not liable because "there is no difference or a little bit of difference" between the recovery time for a two or a three-level fusion. Dr. Spellman opined that based on the July 2015 MRI results a two or three-level fusion would have been appropriate. Donegal asserts that Bradley was not totally disabled for the entire two-year period as a result of the November 2015 MVA and subsequent three-level fusion. Instead, Donegal argues that nothing in the record reflects a disability after September 29, 2016, and that Bradley's lost wages after the September 29, 2016 are attributed to his lumbar and shoulder injuries and not his neck injury. Donegal argues that "[w]hat you see in Dr. Boulos' testimony was they never differentiated between anything, they just kept the disability going because he was disabled from the lumbar surgery and apparently disabled from the right shoulder surgery, too, even though Dr. Boulos did not do that surgery." Therefore, according to Donegal, after September 29, 2016, there is no differentiation and Bradley does not provide evidence that he was disabled because of the three-level fusion.
Trial Tr. 127:3-10.
Trial Tr. 128.
Finally, Donegal asserts that regardless of whether the three-level fusion is related to the November 2015 MVA, its use of Bradley's 2014 K-1 was appropriate for calculating lost wages. First, the 2014 K-1 provides more certainty about Bradley's salary. Second, the 2014 K-1 was voluntarily provided by Bradley to be used for the calculation, even though it was not the information Donegal requested. Third, Bradley accepted the lost wage payments based on the 2014 K-1 calculations and did not object to its use, to Donegal. Therefore, Donegal argues Bradley accepted the payments and is now estopped from arguing that the lost wage calculation should be based on different wage documentation.
IV. ANALYSIS
Introduction
To be clear, the injury before the Court is Bradley's three-level fusion. His lumbar and shoulder injuries are not part of this case except for Bradley's argument that those injuries prolonged his recovery from his three-level fusion. As noted above, the issue in this case is whether Bradley's lost wages for the period between July 10, 2015 to November 24, 2016 are reasonable, necessary and proximately related to the November 2015 MVA. The plaintiff must establish that a "causal connection between a personal injury and liability of another party for it 'must be proven by the direct testimony of a competent medical expert.'" Then the plaintiff must prove the lost wages are reasonable and necessary because lost wages "cannot be considered reasonable if they are not shown to be proximately caused. . . through expert testimony at trial." Lost wages must be reasonable in amount and are necessary, when it is "unavoidable" or "inescapable."
See Joint Pretrial Stipulation.
Dennis v. State Farm Mut. Auto. Ins. Co., 2008 WL 4409436, at *3 (Del. Super. 2008).
Id.
See Ramsey v. State Farm. Mut. Ins. Co., 2005 WL 528846 (Del. 2005) (citing Casson v. Nationwide Ins. Co., 455 A.2d 361 (Del. Super. 1982).
If the Court finds the lost wages are reasonable, necessary and proximately related, it must then determine the appropriate calculation of damages. The plaintiff has the burden of proof to establish the loss of a "predictable and ascertainable source of income."
See State Farm Mut. Auto. Ins. Co. v. Girgis, 2010 WL 1077846, at *2 (Del. Super. 2010).
Findings of Fact and Conclusions of Law
Based on the testimony of Bradley, Dr. Boulos and Dr. Spellman, the Court finds by a preponderance of the evidence that Bradley's three-level fusion and lost wages are reasonable, necessary and proximately related to the November 2015 MVA for the period of July 10, 2016 to September 29, 2016. Prior to the November 2015 MVA, Bradley was treating non-surgically and was working full-time. As a result of the November 2015 MVA, Bradley was totally disabled from the cervical spine injury until September 29, 2016. But there is nothing in the medical records after September 29, 2016, or expert testimony, to show by a preponderance of the evidence that the three-level fusion prevented Bradley from returning to work in late September 2016. The Court is not persuaded by a preponderance of the evidence that Bradley was disabled from his three-level fusion beyond September 29, 2016. It is unclear from the medical records and expert testimony that Bradley's lumbar and shoulder injuries prevented Bradley from recovering from his three-level fusion to the point where he could not return to work. The medical records and expert testimony do not explain why Bradley is an atypical patient who had a prolonged recovery. Six months is the typical recovery time for a three-level fusion and Bradley did not prove it is more probable than not that the lumbar and shoulder injuries interfered with his ability to rehabilitate from his three-level fusion in this time frame.
After September 29, 2016, there are several notes from Dr. Boulos which discuss Bradley's recovery, but none of the notes state that treatment for Bradley's other injuries resulted in a delay of treatment of his three-level fusion. Finally, Dr. Boulos testified that he could not say that Bradley was totally disabled for the entirety of the two-year period because of the cervical fusion.
Bradley submitted a "Request for Automobile Arbitration" form to the Arbitration Panel, but the form does not provide much detail about his request. Bradley states in the section entitled, "Describe how the loss occurred with a brief statement of your complaint," that his claim is for "[r]easonable, necessary and related lost wage have been denied by the carrier." Under the section entitled, "The complaint for which you are asking the panel to rule on involves," Bradley marked "Personal Injury Protection" ("PIP") and "Medical Bills, Lost wage, Substitute Services/Death Benefits."
See Court Trial Ex. 2.
Id.
Id. When filing his "Request for Automobile Arbitration" form with the Arbitration Panel, Bradley failed to fill in the section entitled, "Amount of Damages you are asking for (must indicate amount)." See id. The form states that a submission must indicate the amount of damages sought and "IMPORTANT *It is necessary that you submit bills or estimates to support your claim prior to the hearing." Id. The record on appeal from the Arbitration Panel is minimal, therefore, the Court is left with the statements of counsel to "fill in the blanks." At trial, Donegal's counsel stated on the record that the issue of lost wage calculations was not presented to the Arbitration Panel. See Trial Tr., E-File 62844043, 98, 100-102, 108-109. Instead, he stated that the issue was whether Donegal owed Bradley anything after July 9, 2016. Trial Tr. 100. Bradley's counsel never objected and in fact, stated that the lost wage calculation issue was never argued before the Arbitration Panel. See Trial Tr. 104-105, 107, 112, 119. Bradley, however, stated while he knew the lost wages were not based on the Wages and Salary Verification form before the arbitration, he presented his lost wage calculations based upon it without objection and thought that it was not an issue anymore. Trial Tr. 105. Donegal stated that he did not know that the lost wage calculations was an issue until making his pretrial preparation when he realized the parties had different numbers. Trial Tr. 108.
With regard to the calculation of lost wages, as previously noted, Donegal based its lost wage payments on Bradley's 2014 K-1 and subsequently paid Bradley $3,126.20 a month or $721.43 a week until July 9, 2016. From July 10, 2016 onward, Sedgwick paid Bradley lost wages of $575.67 a week. The difference between the lost wage payments is $145.76 a week. Bradley argues that Donegal should have used the Wage and Salary Verification form he initially submitted and not the 2014 K-1 he later submitted, in lieu of the three years of tax returns Donegal requested, to calculate lost wages. Donegal argues that Bradley accepted the K-1 lost wage calculation and is now estopped from arguing that the lost wage calculation was inaccurate because the issue was not presented to the Arbitration Panel.
Trial Tr. 94-95, 122:2-20.
Trial Tr. 101-103, 108:8-20, 120-121.
Based on a review of the record, the Court determines by a preponderance of the evidence that the 2014 K-1 is the operative document to calculate lost wages. Bradley's burden is to prove by a preponderance of the evidence that lost wages are reasonable, necessary and related to the November 2015 MVA. Bradley never asserted to Donegal or the Arbitration Panel that Donegal's use of the 2014 K-1 was unreasonable. The Court finds the initial calculation based on Bradley's 2014 K-1 to be more reliable than the Wage and Salary Verification form because the 2014 K-1 represents Bradley's total income over the course of a year, while the Wage and Salary Verification form is based on a thirteen-week period. Furthermore, Bradley provided the 2014 K-1 to Donegal and never objected when Donegal based its calculations on it.
See Ramsey, 2005 WL 528846.
See Pl. Ex. 6; see also Trial Tr. 73-74. --------
IV. CONCLUSION
The Court finds that Bradley's three-level fusion is related to the November 2015 MVA and Bradley was disabled as a result of the November 2015 MVA from November 24, 2015 to September 29, 2016. Donegal is obligated to pay Bradley lost wages based on his 2014 K-1 for the period of July 10, 2016 t0 September 29, 2016.
IT IS SO ORDERED
/s/_________
Jan R. Jurden, President Judge cc: Prothonotary
Id. "Plan" "Other" "Schedule Surgery, right 14/5, 15/s1 decompression, microdisc." Id.
Id.
Id.
Id.