Hiller v. Sedgwick Claims Management Services, Inc.

• Court: Superior Court of Delaware
• Decided: January 4, 2023
• Docket: S21C-01-022 MHC
• Status: Published

Opinion

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