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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

MARCELLI v. ACE AMERICAN INSURANCE COMPANY et al Complaint

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

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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 OF DENVER, STATE OF COLORADO Court Address: 1437 Bannock St., Rm. 256 Denver, CO 80202 Tel: (303) 271-6145 Plaintiff: Case No. JASON MARCELLI Div. v. Defendants: ACE AMERICAN INSURANCE COMPANY AND GALLAGHER BASSETT SERVICES, INC. A COURT USE ONLY A
Attorneys for Plailltiff; Bruce J. Kaye, Atty. No. 5801 Mari C. Bush, Atty. No. 10867 Kaye & Bush, LLC 2300 15th Street, Suite 200 Denver, Colorado 80202 Phone Number: 303-477-8787 Fax Number: 303-477-8686 bruce@kayebushlaw.com mcbush@kayebushlaw.com
COMPLAINT FOR DAMAGES AND JURY DEMAND Plaintiff Jason Marcelli, by and through his attorneys, Bruce J. Kaye and Mari C. Bush Kaye and Bush, LLC states and alleges as follows: PARTIES, JURISDICTIONAL AND GENERAL ALLEGATIONS
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Plaintiff Jason Marcelli (hereinafter "Plaintiff" or "Mr. Marcelli") is a resident ofthe State of Colorado. At all times pel1inent hereto, Defendant Ace American Insurance Company was authorized to provide workers' compensation insurance in the State of Colorado. At all times material hereto, Defendant Ace American Insurance Company insured 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 the claim 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 a floor mat, fell and injured his lower back, hereinafterrefen'ed to as the "work-related accident." The work-related accident was witnessed by a co-worker, Robert Bargy. Mr. Bargy wrote a repolt stating that Mr. Marcelli tripped on a floor mat and fell injuring his back, leg, elbow and foot. Mr. Marcelli's supervisor, Darmy Le, transported Mr. Marcelli to Littleton Adventist Hospital where Mr. Marcelli was evaluated and treated. Mr. Marcelli's diagnoses by the emergency room physician were 1) low back sprain, 2) sciatica, 3) accidental fall, 4) workers' compensation injury. Mr. Le completed a report stating that Mr. Marcelli immediately reported the workrelated accident to hinl. On November 10,2008, Mr. Marcelli was contacted by a representative of Echo star's Human Resources Department and directed to visit Dr. Miranda-Seijo at Concentra Medical Centers for evaluation and treatment of his injuries. Dr. Miranda-Seijo's diagnosis was lumbar strain. Dr. Miranda-Seijo ordered Mr. Marcelli to limit his activities at work and undergo a course of physical therapy. Through his attorney, Joseph M. Goldhammer, Esq., Mr. Marcelli filed a claim for workers' compensation benefits, including medical benefits. (now Claim No. WC 7776-535.) On November 18, 2008, Mr. Marcelli was examined by Anthony J. Vecchiarelli, M.D. Mr. Marcelli paid for the evaluation from his own funds. Dr. Vecchiarelli suspected Mr. Marcelli had suffered a herniated disc and recommended he undergo an MRI and neurosurgical evaluation. Dr. Vecchiarelli wrote a letter dated November 19, 2008 stating he suspected Mr. Marcelli suffered a herniated disc and recommended he undergo a neurosurgical evaluation. A copy of Dr. Vecchiarlli's letter was forwarded to Brad Miller, Esq., attorney for the Defendants on December 3,2008. On November 25,2008, a "Notice of Contest" (''Notice'') of Mr. Marcelli's claim was filed by Defendant Gallagher Basset Services s, Inc. ("GB"). GB filed the Notice acting in the capacity of the "claims administrator" for Mr. Marcelli's workers' 2
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compensation claim. The Notice stated that liability for Mr. Marcelli's claim was contested for "work-relatedness." By filing the Notice and contesting the claim for work-relatedness, Defendants denied any responsibility to provide medical care to Mr. Marcelli for evaluation and treatment ofinjuries he sustained due to the workrelated accident. 10. Mr. Marcelli requested an "expedited hearing" in order to obtain reasonable medical care for his injuries. An expedited hearing was scheduled for January 14, 2009. On December 31, 2008, Defendants requested and were granted a continuance of the hearing. Defendants claimed it was necessary to continue the hearing in order to conduct "discovery." The hearing was re-scheduled for March 17, 2009. 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 of the MRI 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 MRI on March 11, 2009. Dr. Vecchiarelli noted that the disc herniation was a new finding. Dr. Vecchiarelli testified at heruing that Mr. 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. 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 and provided 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 L4-5 with left L5 nerve root compression. . Defendants' workers' compensation counsel requested a second continuance of the expedited hearing on March 5, 2009. The addendum by Dr. Watson was provided to Mr. Marcelli's workers' compensation attorney, Mr. Goldhammer, on March 27, 2009. The March 5, 2009 expedited hearing was vacated and re-scheduled for April 23, 2009. The heru'ing was not completed that day and additional testimony was heard on July 17,2009.
It was undisputed that Mr. Marcelli had suffered a prior work-related low back injury at 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 David Meruls. Mr. Means testified to a conversation with Mr. Marcelli in which Marcelli allegedly stated he had reinjured his back lifting weights and not when he fell at work. Further, Mr. Means testified that Mr. Marcelli was going to blrune the injury on
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Filed 12/14/10 USDC Colorado Page 5 of 9
the employer because he was about to get fired. 17. In the Defendants' "Proposed Specific Findings of Fact, Conclusions of Law, and Order," they argued that Mr. Marcelli reinjured his back lifting weights and that Mr. Marcelli was going to blame the injury on the employer because he was about to get fired. These arguments were based on Mr. Mean's testimony. On August 31,2009, Administrative Law Judge Cannici ("ALJ") filed a "Findings of Fact, Conclusions of Law, and Order" (hereinafter the "ALJ Order"). Exhibit 1, copy of Findings of Fact, Conclusions of Law, and Order. Taking into consideration the evidence of Mr. Marcelli's fall, inchlding the eyewitness testimony and Dr. Vecchiarelli's testimony, the ALJ detennined that Mr. Marcelli's herniated disc at L4-5 was due to the work-related fall on November 7, 2008. The ALI ordered Defendants to provide reasonable and necessary medical care to treat that injury. Id., p. 5-~ 5 Defendants filed a Petition to Review the ALJ Order on September 21, 2009. The Brief in Support of the Petition was subinitted on December 14,2009. Among the issues presented was whether the "applicable law and substantial evidence support the ALI's finding that the claimant suffered a compensable injury by a preponderance of the evidence." Exhibit 2, Petition to Review, Exhibit 3, Respondents' Briefin Support of Petition to Review. On March 2,2010 the Industrial Claims Appeal Panel ("ICAP") issued its Order affirming 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 of compensability and entitlement to temporary total disability and medical benefits are not supported by substantial evidence. Because the issues are factual in natnre we must uphold the ALI's detennination if supported by substantial evidence in the record. Section 8-43-301(8). This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALI's credibility determinations, resolution of 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 suffered from either a prior injury or from an injury sustained while weight lifting for personal reasons. The respondents refer to evidence in ilie record that could support its contention iliat the claimant did not suffer a compensable injury. However, the existence of evidence in the record that would support a 4
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contrary result provides no relief on appeal. Cardova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002) We conclude that the ALl's factual determinations concerning compensability are supported by substantial evidence. For instance, the claimant testified that he injured his lower back when he slipped on a floor mat a work and fell. Tr. (4/23/09) at 66-67. Dr. Vecchiarelli testified that the claimant's herniated disc and radiating pain were consistent with a slip and fall injury as described by the claimant Tr. (4/23/09) at 38-39. The ALl credited such testimony in fmding a compensable injury. 22. Between the time Defendants' filed their Notice of Contest on November 12,2008 and March 2,2010, the date of the reAP ruling, Defendants did not provide any medical care to Plaintiff for his low back injury. Following the rCAP ruling, Plaintiff was evaluated by the authorized treating physician, Pamela J. Knight, M.D., on March 26,2010. Dr. Knight, an orthopedic surgeon, reco1l1lnended a neurosurgical evaluation as soon as possible due to the severity of Plaintiff s symptoms. Dr. Knight recommended that Mr. Marcelli undergo two lumbar steroid injections atthe 14-5 level to "prevent exacerbating permanent damage to his left exiting nerve roots." Ml.'. Marcelli did not obtain relief from the first injection and the second was cancelled. Dr. Knight expressed concerns about Mr. Marcelli's radiculopathy becoming more permanent. GB filed a General Admission of Liability on April, I, 2010, admitting liability for Mr. Marcelli's medical care for Mr. Marcelli's work-related injuries. Plaintiff requested that Dr. Knightto refer him to lens-Peter Witt, M.D., Director of the Neuro Spine Program, Department ofNeurosurgery at the University of Colorado Health Sciences Center. Dr. Witt was known to Ml.'. Marcelli because this neurosurgeon treated his mother. Dr. Knight referred Mr. Marcelli to Dr. Witt. An appointment was scheduled with Dr. Witt. Defendants accused Mr. Marcelli of attempting to direct his own care. Dr. Witt was unable to evaluate Mr. Marcelli as soon as Dr. Knight felt was necessary. Dr. Knight next referred Mr. Marcelli to Chad 1. Prusmack, M.D., also a neurosurgeon. Mr. Marcelli was evaluated by Dr. Prusmack on May 17,2010. At that time, Dr. PlUsmacicrecommendeda microdiscectomy atL4-5. 0nJune 7, 2010, Mr. Marcelli underwent an L4-5 hemilaminectomy, medial facetectomy and microdiscectomy at L4-5. In a follow-up visit on June 30, 2010, Dr. PlUsmack's concern that a fusion at L4-5 may be necessary was noted. Mr. Marcelli's condition worsened. Subsequently, Mr. Marcelli underwent a lumber fusion at L4-S I. Exhibit 5- Records of Rocky Mountain Spine Clinic.
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Upon information and belief, the delay in evaluation and treatment of Plaintiff slow back injury resulted in his undergoing a lumbar fusion at L4-S 1. In all probability the lumbar fusion probably would have been avoided but for the delay in the evaluation and treatment of Plaintiffs low back injury. Upon information and belief, the delay in evaluation and treatment of Plaintiff slow back injury resulted in his having physical impairment. This physical impairment would probably have been avoided but for the delay in the evaluation and treatment of Plaintiffs low back injury. Upon infonnation and belief, the delay in evaluation and treatment of Plaintiffs low back injUlY resulted in his suffering physical pain and discomfort, and loss of enjoyment of life. These non-economic injuries would probably have not occurred but for the delay in the evaluation and treatment of Plaintiffs low back injury. Upon information and belief, as a direct aud proximate result of the denial and delay in payment of temporary total disability benefits, Plaintiff sustained other economic losses. The Plaintiff supports a minor child as well as himself. The Plaintiff had to bOlTOW funds from his fanlily for living expenses. In addition, the Plaintiff had to apply for and utilized food stamps. Upon information and belief, as a direct and proximate result of the denial and delay in payment of temporary disability benefits, Plaintiff experienced emotional pain and suffering.
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CLAIM FORRELillF (Bad Faith)
32. Plaintiff re-states and Ie-alleges paragraphs 1-31 above as is set f011h herein verbatim. At all times pertinent hereto, Defendants had and continue to have a duty of good faith and fair dealing to Mr. Marcelli in handling and adjusting his workers' compensation claim. Defendants' duties include but are not limited to: a. b. c. handling and adjusting Plaintiff s claim in an appropriate maMer; providing the benefits that have been awarded; providing benefits and medical care to claimants who have been injured on the job.
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The duties ofthe Defendants include, but are not linrited to, handling and adjusting 6
Case 1:10-cv-03025-PAB Document 2
Filed 12/14/10 USDC Colorado Page 8 of 9
Plaintiffs claim in compliance with the provisions of the Colorado Unfair Claim Practices Act, C.R.S. §10-3-1104(1)(h). 36. Defendants breached their duties, and acted in bad faith through their conduct as described above. Defendants' wrongful conduct included, but is not limited to: a. b. c. Refusing to pay claims without conducting a reasonable investigation based upon all available infOlmation. Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims for which liability became reasonably clear. Failing to promptly settle claims where liability has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage. Appealing the determination by the ALJ that Plaintiffs claim was compensable.
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The actions of Defendant were unreasonable. Defendants lmew or should have known its conduct was unreasonable or disregarded the fact that its conduct was unreasonable. As a direct and proximate result of Defendants' conduct, Mr. Marcelli has been injured and suffered damages as described herein, including those matters described in paragraphs 27-30. The conduct of the Defendant was done heedlessly and recklessly and without regard to the consequences, or the rights and safety of others, particularly the Plaintiff.
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WHEREFORE Plaintiff prays for an Order of judgment against the Defendant and in her favor for, damages in an amount to be determined by the jury, interest as allowed by law, attorneys fees, expelt witness fees, filing fees, deposition expenses, costs, interest on costs and for such other and further relief as this Court may deem apprqpriate . .nJRY TRIAL REOUEST
Plaintiff demands a trial by jury of all issues so triable.
DATED this 5"' day of November 2010.
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Respectfully Submitted,
KAYE AND BUSH, LLC
By: lsI Bruce J. Kaye In accordance with C.R.C.P 121 §1-26(9) a printed copy of this document with original signalUres is being maintained by the filing party and will be made available for inspection by
other parties or the court upon request.
Address of Plaintiff: 9781 Pyramid Ct., Apt. 2222 Englewood, CO 80112
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