MARCELLI v. ACE AMERICAN INSURANCE COMPANY et al Complaint

8/8/2019 MARCELLI v. ACE AMERICAN INSURANCE COMPANY et al Complaint

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Case 1:10-cv-03025-PAB Document 2 Filed 12/14/10 USDC Colorado Page 2 of 9

DISTRICT COURT, CITY AND COUNTY OFDENVER, STATE OF COLORADO

Court Address: A COURT USE ONLY A1437 Bannock St., Rm. 256Denver, CO 80202Tel: (303) 271-6145

Plaintiff:Case No.

JASON MARCELLIDiv.

v.

Defendants:

AC E AMERICAN INSURANCE COMPANY ANDGALLAGHER BASSETT SERVICES, INC.

Attorneys fo r Plailltiff;Bruce J. Kaye, Atty. No. 5801Mari C. Bush, Atty. No. 10867Kaye & Bush, LL C2300 15th Street, Suite 200Denver, Colorado 80202Phone Number: 303-477-8787Fax Number: [email protected]@kayebushlaw.com

COMPLAINT FO R DAMAGES AND JURY DEMAND

Plaint iff Jason Marcelli, by and through his attorneys, Bruce J. Kaye and Mari C. Bush Kayeand Bush, LLC states and alleges as follows:

PARTIES, JURISDICTIONAL AND GENERAL ALLEGATIONS

I. Plaintiff Jason Marcelli (hereinafter "Plaintiff" or "Mr. Marcelli") is a resident oftheState of Colorado. At all times pel1inent hereto, Defendant Ace American InsuranceCompany was authorized to provide workers' compensation insurance in the State ofColorado. At all times material hereto, Defendant Ace American Insurance Companyinsured the Plaintiffs workers' compensation claim which gives rise to this action.


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At all times pertinent hereto, Defendant Gallagher Bassett Services, Inc., was theclaim administrator for Plaintiff's underlying workers' compensation claim which

gives rise to this action.

2. On November 7, 2008, Mr. Marcelli was employed by Echostar Dish Network.While acting in the scope and course of his employment, Mr. Marcelli tripped on afloor mat, fell and injured his lower back, hereinafterrefen'ed to as the "work-relatedaccident."

3. The work-related accident was witnessed by a co-worker, Robert Bargy. Mr. Bargywrote a repolt stating that Mr. Marcelli tripped on a floor mat and fell injuring hisback, leg, elbow and foot.

4. Mr. Marcel li's supervisor, Darmy Le, transported Mr. Marcelli to Littleton AdventistHospital where Mr . Marcelli was evaluated and treated. Mr . Marcelli's diagnoses bythe emergency room physician were 1) low back sprain, 2) sciatica, 3) accidental fall,4) workers' compensation injury.

5. Mr. Le completed a report stating that Mr. Marcelli immediately reported the workrelated accident to hinl.

6. On November 10,2008, Mr. Marcelli was contacted by a representative of Echo star'sHuman Resources Department and directed to visit Dr. Miranda-Seijo at ConcentraMedical Centers for evaluation and treatment of his injuries. Dr. Miranda-Seijo'sdiagnosis was lumbar strain. Dr. Miranda-Seijo ordered Mr. Marcelli to limit hisactivities at work and undergo a course of physical therapy.

7. Through his attorney, Joseph M. Goldhammer, Esq., Mr. Marcelli filed a claim forworkers ' compensation benefits, including medical benefits. (now Claim No. WC 7-776-535.)

8. On November 18, 2008, Mr. Marcelli was examined by Anthony J. Vecchiarelli,M.D. Mr. Marcelli paid for the evaluation from his ow n funds. Dr. Vecchiarellisuspected Mr. Marcelli ha d suffered a herniated disc and recommended he undergoan MRI and neurosurgical evaluation. Dr. Vecchiarelli wrote a letter dated November19, 2008 stating he suspected Mr. Marcelli suffered a herniated disc and

recommended he undergo a neurosurgical evaluation. A copy of Dr. Vecchiarlli'sletter was forwarded to Brad Miller, Esq., attorney for the Defendants on December3,2008.

9. On November 25,2008, a "Notice of Contest" (''Notice'') of Mr . Marcelli's claimwas filed by Defendant Gallagher Basset Services s, Inc. ("GB"). GB filed the Noticeacting in the capacity of the "claims administrator" for Mr. Marcelli's workers'

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compensation claim. The Notice stated that liability for Mr. Marcelli's claim wascontested for "work-relatedness." By filing the Not ice and contesting the claim forwork-relatedness, Defendants denied any responsibility to provide medical care toMr. Marcelli for evaluation an d treatment ofinjuries he sustained due to the work

related accident.

10. Mr. Marcelli requested an "expedit ed hearing" in order to obtain reasonable medicalcare for his injuries. An expedi ted hearing was scheduled for January 14, 2009. OnDecember 31, 2008, Defendants requested and were granted a continuance of thehearing. Defendants claimed it was necessary to continue the hearing in order toconduct "discovery." The hearing was re-scheduled for March 17, 2009.

11. Mr. Marcelli obtained an MRI evaluation of his lower back on FeblUary 20, 2009.The MRI revealed a herniated disc at L4-5 with nerve root compression. A copy ofth e MR I report was forwarded to Defendants' workers ' compensation attorney, Brad

Miller, Esq., on February 22, 2009, at his own expense. Mr. Marcelli was seen by Dr.Vecchiarelli following the lumbar MR I on March 11, 2009. Dr. Vecchiarelli notedthat the disc herniation was a ne w finding. Dr. Vecchiarelli testified at heruing thatMr. Vecchiru'elli's symptoms and the findings on the MRI were "exactly explained"by Mr. Mru'celli's history of the trip and fall incident at work.

12. Defendants sent Mr. Marcelli for a medical exanrination by Robert W. Watson, M.D.on February 20, 2009. (The same day as the MRI.) Dr. Watson reviewed the MRI andprovided an addendum to his initial report. In the addendum dated March 12, 2009,Dr. Watson agreed the February 2009 MRI demonstrated a herniated disc at L4-5with left L5 nerve root compression. .

13. Defendants' workers' compensati on counsel requested a second continuance of theexped ited hearing on March 5, 2009.

14. The addendum by Dr. Watson was provided to Mr. Marcelli's workers' compensationattorney, Mr. Goldhammer, on March 27, 2009.

15. The March 5, 2009 expedited hearing was vacated and re-scheduled for April 23,2009. The heru'ing was not comple ted that day and additional testimony was heard onJuly 17,2009.

16. I t was undisputed that Mr. Marcelli had suffered a prior work-related low back injuryat L5-81 on October 30, 2005 while working for Target stores. At the hearing,Defendants presented testimony by a co-worker of Mr. Marcelli's nruned DavidMeruls. Mr. Means testified to a conversation with Mr. Marcelli in which Marcelliallegedly stated he had reinjured his back lifting weights and not when he fell atwork. Further, Mr. Means testified that Mr. Marcelli was going to blrune the injury on

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the employer because he was about to get fired.

17. In the Defendants' "Proposed Specific Findings of Fact, Conclusions of Law, andOrder," they argued that Mr. Marcelli rein jured his back lifting weights and that Mr.

Marcelli was going to blame the injury on the employer because he was about to getfired. These arguments were based on Mr. Mean's testimony.

18. On August 31,2009, Administrative Law Judge Cannici ("ALJ") filed a "Findings ofFact, Conclusions of Law, and Order" (hereinafter the "ALJ Order"). Exhibit 1, copyof Findings of Fact, Conclusions of Law, and Order.

19. Taking into consideration the evidence of Mr. Marcelli's fall, inchlding theeyewitness testimony and Dr. Vecchiarell i's testimony, the AL J detennined that Mr.Marcelli's herniated disc at L4-5 was due to the work-related fall on November 7,2008. The AL I ordered Defendants to provide reasonable and necessary medical care

to treat that injury. Id., p. 5 - ~ 5

20. Defendants filed a Petit ion to Review the ALJ Order on September 21, 2009. TheBrief in Support of the Petition was subinitted on December 14,2009. Among theissues presented was whether the "applicable law and substantial evidence supportthe ALI's finding that the claimant suffered a compensable injury by a preponderanceof the evidence." Exhibit 2, Petition to Review, Exhibit 3, Respondents' BriefinSupport of Petition to Review.

21. On March 2,2010 the Industrial Claims Appeal Panel ("ICAP") issued its Orderaffirming the decision ofthe ALJ as to compensability. Exhibit 4, ICAP Order. In

pertinent part, ICAP ruled:

The respondents also argue that the hearing officer's findings ofcompensability and entitlement to temporary total disability and medicalbenefits are not supported by substantial evidence. Because the issues arefactual in natnre we must uphold the ALI's detennination if supported bysubstantial evidence in the record. Section 8-43-301(8). This standard ofreview requires us to consider the evidence in a light most favorable to theprevailing party, and defer to the ALI's credibility determinations, resolutionof conflicts in the evidence, and plausible inferences drawn from the record.Wilson v. Industrial Claim Appeals Office, 81 P.3d 186 (Colo. App. 2003)

In support of their contention the respondents argue that the claimant sufferedfrom either a prior injury or from an injury sustained while weight lifting forpersonal reasons. The respondents refer to evidence in ilie record that couldsupport its contention iliat the claimant did not suffer a compensable injury.However, the existence of evidence in the record that would support a

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contrary result provides no relief on appeal. Cardova v. Industrial ClaimAppeals Office, 55 P.3d 186 (Colo. App. 2002)We conclude that the ALl's factual determinations concerningcompensability are supported by substantial evidence. Fo r instance, the

claimant testified that he injured hi s lower back when he slipped on a floormat a work and fell. Tr. (4/23/09) at 66-67. Dr. Vecchiarelli testified that theclaimant's herniated disc and radiating pain were consistent with a slip an dfall injury as described by the claimant Tr. (4/23/09) at 38-39. Th e ALlcredited such testimony in fmding a compensable injury.

22. Between the time Defendants' filed their Notice of Contest on November 12,2008and March 2,2010, the date of the reAP ruling, Defendants did no t provide anymedical care to Plaintiff for hi s low back injury.

23. Following th e rCAP ruling, Plaintiff was evaluated by the authorized treating

physician, Pamela J. Knight, M.D., on March 26,2010. Dr. Knight, an orthopedicsurgeon, reco1l1lnended a neurosurgical evaluation as soon as possible due to theseverity of Plaintiff s symptoms. Dr. Knight recommended that Mr. Marcelli undergotwo lumbar steroid injections atthe 14-5 level to "prevent exacerbating permanentdamage to his left exiting nerve roots." Ml.'. Marcelli did no t obtain relief from thefirst injection and the second was cancelled. Dr. Knight expressed concerns aboutMr. Marcelli's radiculopathy becoming more permanent.

24. GB filed a General Admission of Liability on April, I, 2010, admitting liability forMr. Marcelli's medical care for Mr. Marcelli's work-related injuries.

25. Plaintiff requested that Dr.Knightto

referhim

to lens-Peter Witt, M.D., Directorof

the Neuro Spine Program, Department of Neurosurgery at the University of ColoradoHealth Sciences Center. Dr. Witt was known to Ml.'. Marcelli because thisneurosurgeon treated his mother. Dr. Knight referred Mr. Marcelli to Dr. Witt. Anappointment was scheduled with Dr. Witt. Defendants accused Mr. Marcelli ofattempting to direct hi s ow n care.

26. Dr. Witt was unable to evaluate Mr. Marcelli as soon as Dr. Knight felt wasnecessary. Dr. Knight next referred Mr. Marcelli to Chad 1. Prusmack, M.D., also aneurosurgeon. Mr. Marcelli was evaluated by Dr. Prusmack on May 17,2010. At thattime, Dr. PlUsmacicrecommendeda microdiscectomy atL4-5. 0nJune 7, 2010, Mr.Marcelli underwent an L4-5 hemilaminectomy, medial facetectomy andmicrodiscectomy at L4-5. In a follow-up visit on June 30, 2010, Dr. PlUsmack'sconcern that a fusion at L4-5 may be necessary wa s noted. Mr. Marcelli's conditionworsened. Subsequently, Mr. Marcelli underwent a lumber fusion at L4-S I. Exhibit5- Records of Rocky Mountain Spine Clinic.

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27. Upon information and belief, the delay in evaluation and treatment of Plaintiff slowback injury resulted in his undergoing a lumbar fusion at L4-S 1. In al l probability thelumbar fusion probably would have been avoided but for the delay in the evaluationand treatment o f Plainti ffs low back injury.

28. Upon information and belief, the delay in evaluation and treatment of Plaintiff slowback injury resulted in his having physical impairment. This physical impairmentwould probably have been avoided but for the delay in the evaluation and treatmentof Plaint iffs low back injury.

29. Upon infonnation and belief, the delay in evaluation and treatment of Plaintiffs lowback injUlY resulted in his suffering physical pain and discomfort, and loss ofenjoyment of life. These non-economic injuries would probably have not occurredbut for the delay in the evaluation and treatment o f Plaint iffs low back injury.

30. Upon information and belief, as a direct aud proximate result o f the denial and delayin payment o f temporary total disability benefits, Plaintiff sustained other economiclosses. The Plaintiff supports a minor child as well as himself. The Plaintiff had tobOlTOW funds from his fanlily for living expenses. In addition, the Plaintiff had toapply for and utilized food stamps.

31. Upon information and belief, as a direct and proximate result of the denial and delayin payment of temporary disability benefits, Plaintiff experienced emotional pain andsuffering.

CLAIM FORRE Lill F

(Bad Faith)

32. Plain tiff re-states and Ie-alleges paragraphs 1-31 above as is set f011h hereinverbatim.

33. At all times pertinent hereto, Defendants had and continue to have a duty of goodfaith and fair dealing to Mr. Marcelli in handling and adjusting his workers'compensation claim.

34. Defendants' duties include but are not limited to:

a. handling and adjusting Plainti ff s claim in an appropriate maMer;b. providing the benefits that have been awarded;c. providing benefits and medical care to claimants who have been

injured on the job.

35. The duties ofthe Defendants include, but are not linrited to, handling and adjusting

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Plaintiffs claim in compliance with the provisions o f the Colorado Unfair ClaimPractices Act, C.R.S. 10-3-1104(1)(h).

36. Defendants breached their duties, and acted in bad faith through their conduct asdescribed above. Defendants' wrongful conduct included, but is not limited to:

a. Refusing to pay claims without conducting a reasonable investigation basedupon all available infOlmation.

b. Not attempting in good faith to effectuate prompt, fair and equitablesettlements o f claims for which liability became reasonably clear.

c. Failing to promptly settle claims where liability has become reasonably clear,under one portion o f the insurance policy coverage in order to influencesettlements under other portions of the insurance policy coverage.

d. Appealing the determination by the ALJ that Plaintiffs claim wascompensable.

37. The actions of Defendant were unreasonable.

38. Defendants lmew or should have known its conduct was unreasonable or disregardedthe fact that its conduct was unreasonable.

39. As a direct and proximate result of Defendants' conduct, Mr. Marcelli has beeninjured and suffered damages as described herein, including those matters describedin paragraphs 27-30.

40. The conduct of the Defendant was done heedlessly and recklessly and without regard

to the consequences, or the rights and safetyof

others, particularly the Plaintiff.

WHEREFORE Plaintif f prays for an Order of judgment against the Defendant and in herfavor for, damages in an amount to be determined by the jury, interest as allowed by law, attorneysfees, expelt witness fees, filing fees, deposition expenses, costs, interest on costs and for such otherand further relief as this Court may deem apprqpriate .

.nJRY TRIAL REOUEST

Plaintiff demands a trial by jury o f all issues so triable.

DATED this 5"' day o f November 2010.

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Address of Plaintiff:9781 Pyramid Ct., Apt. 2222Englewood, CO 80112

Respectfully Submitted,

KAYE AND BUSH, LLC

By: lsI Bruce J. KayeIn accordance with C.R.C.P 121 1-26(9) a printed copy ofthis document with original signalUres is being maintained bythe filing party an d will be made available fo r inspection byother parties or the court upon request.

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MARCELLI v. ACE AMERICAN INSURANCE COMPANY et al Complaint