IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
)
)
)
KEVIN HILLER, )
)
Plaintiff, )
)
v. ) C.A. No. S21C-01-022 MHC
)
SEDGWICK CLAIMS )
MANAGEMENT SERVICES, )
INC., )
)
Defendant. )
)
)
ORDER
Submitted: November 4, 2022
Decided: January 4, 2023
Upon Plaintiff’s Motion to Compel,
DENIED.
John S. Spadaro, Esquire, John Sheehan Spadaro, LLC, Wilmington, Delaware.
Attorney for Plaintiff.
Aimee M. Czachorowski, Esquire, Lewis Brisbois Bisgaard & Smith, LLP,
Wilmington, Delaware. Attorney for Defendant.
Lee J. Janiczek, Esquire, Lewis Brisbois Bisgaard & Smith, LLP, Wayne,
Pennsylvania. Pro Hac Vice Attorney for Defendant.
CONNER, J.
INTRODUCTION
This is the Court’s decision on Kevin Hiller’s (“Plaintiff”) Motion to Compel
the IME/DME reports prepared by Dr. Andrew Gelman that are in Sedgwick Claims
Management Services, Inc’s (“Defendant”) possession.1 For the reasons set forth
below Plaintiff’s Motion to Compel is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
On November 11, 2013 Plaintiff injured his right knee in a work-related
accident.2 Workers’ Compensation paid for his injuries through periodic payments
of benefits.3 These benefits included payment for two knee surgeries that occurred
in April of 2014 and May of 2016.4 Plaintiff was employed by YRC Inc. but
Defendant was the third-party insurance claims adjuster that oversaw the daily
management of Plaintiff’s claims.5
Defendant has paid the covered lost wage benefits and medical expenses that
have arisen from the November 11, 2013 work-place accident.6 Plaintiff alleges
1
Plaintiff is seeking production of all Dr. Gelman IME/DME reports from June 2017 to present
day, including reports regarding unrelated claims and people.
2
Pl. Compl. ¶ 5.
3
Id.
4
Id.
5
Id. ¶ 4.
6
Id. ¶ 7.
1
Defendant failed to timely pay for right knee replacement surgery and the associated
total disability benefits even though the surgery should have been covered.7
On February 19, 2019 Plaintiff filed a Petition to Determine Additional
Compensation Due to Injured Employee with the Delaware Industrial Accident
Board (“IAB”).8 The petition sought compensation for the knee replacement surgery
and associated total disability costs.9 Defendant hired Dr. Andrew Gelman to
evaluate Plaintiff and offer expert testimony at the June 25, 2019 IAB hearing.10
Plaintiff alleges that at the time Defendant hired Dr. Gelman Defendant was
aware that the doctor offered predictable, pro-insurer opinions.11 Plaintiff further
alleges that Defendant intended to rely on these “tainted” opinions to deny Plaintiff
coverage for his knee replacement surgery.12
Dr. Gelman testified before the IAB and stated that Plaintiff’s knee
replacement surgery was not casually related to his November 11, 2013 workplace
accident.13 To support his opinion, Dr. Gelman stated that Plaintiff’s May 2016
surgery was also not related to the workplace accident.14 However, Plaintiff was
7
Id.
8
Id. ¶ 9.
9
Id.
10
Id. ¶ 10.
11
Id. ¶ 17.
12
Id.
13
Id. ¶ 18.
14
Dr. Gelman was also hired by Defendant to conduct a DME on Plaintiff regarding his 2016
knee surgery. Id.
2
troubled by that testimony considering he already received payments for the May
2016 surgery, meaning the surgery was approved and covered.15 The IAB issued a
written decision in which they rejected Dr. Gelman’s opinions.16 The IAB felt Dr.
Gelman offered no explanation for the damage that occurred to Plaintiff’s knee
independent of the workplace accident.17
In Plaintiff’s Complaint he puts forth two counts for recovery.18 Count I
alleges a bad faith breach of contract.19 Plaintiff states Defendant’s failure to make
timely payments of his workers’ compensation benefits for the planned knee
replacement surgery was without reasonable justification.20 Count II alleges civil
conspiracy.21 Plaintiff states Defendant acted in concert with one or more other
actors to unreasonably delay the payment of workers’ compensation benefits.22 By
doing so, Defendant and the other actors have acted in furtherance of a conspiracy.23
Overall, Plaintiff is alleging that Defendant purposefully hired Dr. Gelman for his
supposed “anti-claimant” testimony in order to avoid paying Plaintiff his workers’
compensation benefits.
15
Id.
16
Id. ¶ 19.
17
Id. ¶ 20.
18
Id. at 15-16.
19
Id. at 15.
20
Id. ¶ 23.
21
Id. at 16.
22
Id. ¶ 27.
23
Id.
3
Plaintiff filed this Motion to Compel production of all Dr. Gelman’s
IME/DME reports in Defendant’s possession on September 26, 2022. Defendant
filed its response on October 28, 2022. Oral argument was heard on the matter on
November 4, 2022.
STANDARD OF REVIEW
When addressing a motion to compel discovery, the Court determines whether
the discovery sought is reasonably calculated to lead to admissible, non-privileged
evidence.24 The scope of permissible discovery is broad, and objections to discovery
requests are generally not allowed.25 However, it is the duty of the Court “to confine
the scope of discovery to those matters that are truly relevant and to prevent
discovery from evolving into a fishing expedition or from furthering purposes
ulterior to the litigation.”26 Additionally, the scope of document discovery must be
limited to only the production of documents relevant to the subject matter that is
being litigated between the parties.27
24
Del. Super. Ct. Civ. R. 26(b)(1); Alberta Sec. Comm. V. Ryckman, 2015 WL 2265473, at *9
(Del. Super. May 5, 2015).
25
Hunter v. Bogia, 2015 WL 5050648, at *2 (Del. Super. July 29, 2015).
26
Omnicare, Inc. v. Mariner Health Care Mgmt. Co., 2009 WL 1515609, at *3 (Del. Ch. May
29, 2009) (quoting Plaza Sec. Co. v. Office, 1986 WL 14412, at *5 (Del. Ch. Dec. 15, 1986)).
27
Id. (citing Frank v. Engle, 1998 WL 155553, at *1 (Del. Ch. Mar. 30, 1998)).
4
DISCUSSION
In seeking the production of Dr. Gelman’s IME/DME reports in Defendant’s
possession, Plaintiff relies on Powell v. Amguard Ins. Co.28 to establish that the
reports are discoverable. Plaintiff posits that Powell is identical to the case at hand,
and therefore Plaintiff is entitled to the reports.
In Powell, the Plaintiff, Krieger, suffered a work-related accident.29 Krieger’s
employer was insured by AmGuard who provided workers’ compensation benefits.30
Krieger alleged that AmGuard unjustifiably delayed paying him his benefits after
his injury, therefore breaching the insurance contract in bad faith.31 Krieger’s
workplace injury occurred on May 22, 2017.32 On June 5, 2017 AmGuard received
the claim for benefits.33 On that same day, AmGuard informed Kreiger that it could
not accept or deny his claim yet due to a lack of medical documentation, however
AmGuard hoped to have the claim investigation completed within 30 days. 34 Krieger
received an MRI for his injuries on June 12, 2017.35 AmGuard acquired the MRI
report on July 7, 2017 and also acquired Kreiger’s emergency room records.36
28
2019 WL 2114083 (Del. Super. May 14, 2019).
29
Id. at *1.
30
Id.
31
Id.
32
Powell v. AmGuard Ins. Co., 2020 WL 996734, at *1 (Del. Super. Mar. 2, 2020).
33
Id.
34
Id.
35
Id.
36
Id.
5
Despite having those documents in its possession, AmGuard did not accept Kreiger’s
claim.37 Instead, AmGuard delayed its decision because of alleged “red flags”
regarding Kreiger’s possible drug use and theft at his place of employment.38
AmGuard took no action to investigate these alleged “red flags” and had still not
paid any benefits as of August 8, 2017.39 On that same day, AmGuard informed
Krieger’s attorney it would continue to withhold his benefits due to another
allegation, this being that Krieger did not have permission to operate the forklift that
injured him.40 It wasn’t until late August when AmGuard finally investigated the
“red flag” allegations. AmGuard determined Kreiger’s employer falsely alleged that
Kreiger attempted to steal and impermissibly used the forklift.41
Payments were delayed for an additional month after the allegations were proven
untrue because AmGuard continued to contest the severity of Kreiger’s injury. 42 It
wasn’t until October 2, 2017 that the parties settled the lost wage issue. 43 Kreiger
had received no payments for four months and no explanation for this delay, even
though AmGuard was obligated by statute to provide written explanation for the
37
Id.
38
Id.
39
Id. at *2.
40
Id.
41
Id.
42
Id.
43
Id.
6
delay of benefits.44 After finally issuing the first benefits check on October 2, 2017
AmGuard then continued to pay Krieger until he passed away in 2018.45 Prior to his
death, Krieger had initiated a lawsuit against AmGuard for bad faith delay in
investigation and payment of his claim.46
Relevant to the case at hand is AmGuard sending Krieger to Dr. Robert Smith for
a DME on August 29, 2017.47 Dr. Smith prepared a report stating Krieger’s injuries
were directly related to his workplace injury.48 Krieger’s estate requested AmGuard
produce all of Dr. Smith’s DME reports in its possession from the three years prior
to Krieger’s claim.49 The Commissioner allowed the discovery and AmGuard
appealed to this Court.50 The Superior Court denied AmGuard’s motion for
reconsideration of the decision.51
The Court first notes that the case at hand is not identical to the facts of Powell.
In Powell, AmGuard delayed payment for months because of a failure to investigate
unsubstantiated allegations of wrongdoing on the part of Kreiger. AmGuard clearly
acted in bad faith when it delayed payment by relying on these unsubstantiated
44
Id.
45
Id.
46
Id.
47
Krieger was sent to Dr. Smith after AmGuard initiated its investigation into Krieger’s claim.
Powell, 2019 WL 2114083, at *1.
48
Id.
49
Id.
50
Id. at *2.
51
Id. at *7.
7
allegations, taking months to investigate, and even after learning the allegations were
untrue, continuing to contest the severity of Krieger’s injuries by sending him to Dr.
Smith. Therefore, the requested DME reports were relevant to the allegations of bad
faith against AmGuard. However, in this case there is no evidence that Defendant
acted in bad faith, of any manner, when sending Plaintiff to Dr. Gelman and delaying
the payment pending Dr. Gelman’s examination. Defendant did not wait months to
investigate the claim nor rely on unsubstantiated allegations of wrongdoing to delay
payment. Defendant decided, as permitted, to investigate the validity of Plaintiff’s
benefits claim by sending him to a doctor for a DME before ultimately making
payments.
Furthermore, Plaintiff advanced in his Motion to Compel and at oral argument
that a finding of no explanation by Dr. Gelman is effectively a finding of bad faith.52
But, Plaintiff was unable to provide any case law that stated a finding of no
explanation was equivalent to a finding of bad faith, rendering that argument
meritless.
Although Plaintiff has cited numerous cases where the IAB disagreed with Dr.
Gelman’s testimony, Plaintiff was unable to provide any evidence that Dr. Gelman
has ever been subject to disciplinary action for his supposed “anti-claimant”
52
Pl. Mot. to Compel ¶ 5.
8
testimony. Additionally, Plaintiff has been unable to provide any evidence that
Defendant purposefully selected Dr. Gelman for his “pro-insurer” testimony which
would help it delay and/or deny Plaintiff’s claim. Despite Dr. Gelman’s testimonial
history with the IAB, it is not unreasonable that Defendant hired him to conduct the
DME for Plaintiff’s knee replacement surgery. Dr. Gelman was previously hired by
Defendant to conduct another DME on Plaintiff prior to his 2016 knee surgery. Since
Dr. Gelman previously examined Plaintiff, and is familiar with his injury, it is
reasonable Defendant used the same doctor.
Moreover, allowing the discovery of the Dr. Gelman reports in Defendant’s
possession opens the door for similar discovery requests occurring in every case in
which Dr. Gelman testifies. Permitting this discovery of the IME/DME reports when
there is a significant lack of evidentiary support for Plaintiff’s claims would set the
stage for discovery evolving into fishing expeditions in workers’ compensation
disputes.
The Court must limit the scope of discovery to matters that are truly relevant.
Plaintiff relied heavily on Powell to show that the reports should be discoverable.
However, Powell is easily distinguishable from the facts at hand. At this time, the
lack of evidence regarding Defendant’s supposed bad faith conduct leaves the Court
with nothing to base the allowance of the discovery of the IME/DME reports in
9
Defendant’s possession. Simply, the reports are not relevant to the subject matter of
the litigation between the parties nor will the reports lead to admissible evidence.
CONCLUSION
Although the scope of discovery is broad, Defendant has met its’ burden
establishing that the desired information is improperly requested. For the reasons
stated above, Plaintiff’s Motion to Compel is DENIED.
IT IS SO ORDERED.
/s/Mark H. Conner
Mark H. Conner, Judge
cc: Prothonotary
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