October

Heather Salg was co-chair of the annual CDLA/CTLA Professionalism Event at the Supreme Court on October 17, 2017.

October 2017 page

Frank Patterson made oral arguments before the Colorado Supreme Court on the important Fisher v State Farm case on October 18.  He expects a ruling by late Spring.  The Court of Appeals surprised everyone in 2015 by announcing a rule that UM/UIM carriers were required to make piecemeal payments of portions of the UM/UIM claim which were “undisputed”.  Typically, these would be economic damages such as medical expenses.  The Court discovered this requirement in the “Unreasonable Delay/Denial” statute which, Frank argued, makes no mention whatsoever of partial payments or even of the UM/UIM statute.  In effect, the Court of Appeals created a new pay-as-you-go medical coverage like the old PIP or No-Fault system.  Unfortunately, this new mandate from the Court of Appeals came with no guidelines, regulations or legislative guidance such as exist with MPC or existed under the old PIP system.  The case has generated substantial claims disputes and subsequent litigation over demands for “Fisher” payments.  We hope the Supreme Court reverses this unfortunate misinterpretation of Colorado statutes and reinstates the system which had worked well for almost 50 years.  Frank is happy to answer questions about the case or about the current state of the law in relation to Fisher.

Heather Salg tried and won the case of Julie Anne Jones v. State Farm Mut. Auto. Ins. Co., 2016CV33794,  in front of Judge David H. Goldberg on October 10-13, 2017.

5/2/12 plaintiff t-boned the tortfeasor Sasha Schwarz when the Ms. Schwarz ran a stop sign. Plaintiff claimed she was traveling about 30mph at the time of the impact, and to EMTs and at ER she reported pain in the neck, the chest (from the seatbelt) and right ankle (from hitting the brake). She started to get chiropractic care from Dr. Whidden. An MPC claim was made with State Farm and in response to State Farm’s request for apportionment Dr. Whidden apportioned 90% of patient’s care to the 5/2/12 mva. Plaintiff then began to get injections from Dr. Sandell at Pikes Peak Physical Medicine, but MPC paid for them, exhausting $25k MPC benefits. When those were unsuccessful she began to get injections through Michael E. Jansssen, DO at the Center for Spinal Disorders. Those were also unsuccessful. Plaintiff then made a claim for $525k in UIM benefits to State Farm through her then-attorney Philip Collins, Esq. However she provided altered Medical Release Authorizations and only for five providers. Counsel provided additional records to State Farm, but they were not complete. Dr. Janssen recommended surgery. Chad J. Prusmack, M.D. actually performed the surgery, which was unsuccessful. Plaintiff then received additional injections, which were also unsuccessful. Dr. Prusmack testified her nerve pain was permanent.

Plaintiff provided additional (though still incomplete) records to State Farm. State Farm retained physicist Dr. Rebecca Martin to perform an IME. Dr. Martin was the only doctor who reviewed all the records including pre- and post-accident MRIs. Dr. Martin opined plaintiff’s mva-related injuries were only to her chest and foot and those resolved within about 6 weeks. In light of plaintiff’s voluminous pre accident records, the IME, and all the other information in the claim file, State Farm evaluated the claim and advised plaintiff State Farm believed she had been adequately compensated by the $25k tortfeasor payment. Plaintiff retained the Ramos Law Firm and asked State Farm to reconsider based on a report of Dr. Prusmack indicating he reviewed Dr. Martin’s summary of plaintiff records and did not find evidence of pre-existing conditions. State Farm did not change its position. Plaintiff filed suit for UIM benefits and statutory unreasonable delay/denial claiming State Farm’s use of a physicist was inappropriate. Defendant answered and asserted plaintiff’s failure to provide medical authorizations and complete records was a failure to cooperate. Medicals: $258,038.89 (no wage losses claimed). Plaintiff’s final pre-trial demand: $900k. Defendant’s final pre-trial offer: $5k.

Plaintiff’s experts:

James E. Whidden IV, DC (chiropractor)

Timothy Sandell, MD (physiatrist)

Chad J. Prusmack, MD (surgeon)

Michael E. Jansssen, DO (surgeon

Defendant’s experts:

Rebecca Martin, MD (physiatrist)

David Werber, Esq. (industry Standards)

The jury determined plaintiff had been adequately compensated by the $25,000 she recovered from the tortfeasor and verdict entered for State Farm.


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