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HomeMy WebLinkAbout08-392311 s t MCCORMICK & PRIORS, P.C. By: David M. McCormick, Esquire Peter R. Kulp, Esquire Attorney ID #s: 14333 / 203689 Four Penn Center, Suite 800 1600 John F. Kennedy Boulevard Philadelphia, PA 19103 (T) 215-972-0161 (F) 215-972-5580 email: dmccormickamccormickpriore.com pkulp@mccormickuriore.com ERIE INSURANCE EXCHANGE 4901 LOUISE DRIVE MECHANICSBURG, PA 17055 V. KELLY H. BINGAMAN 2250 CANTERBURY DRIVE MECHANICSBURG, PA 17055 Attorneys for Plaintiff, Erie Insurance Exchange COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.: 0 S " ?w C! u t,L'&kn PRAECIPE TO ISSUE WRIT OF SUMMONS TO THE PROTHONOTARY: Kindly issue a Writ of Summons - Civil Action, in the above-captioned matter. McCORMICK & PRIORE, P.C. By: Dated: June 30, 2008 ]David M. McCo ck, Esquire Peter R. Kulp, Es uire Attorneys for Plaintiff, Erie Insurance Exchange McCorwcK & PRIORE AwowEYs AT LAW r` _Aj ? J ?' Ui Z -.j -< 1 -1 1 Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS ERIE INSURANCE EXCHANGE 4901 LOUISE DRIVE MECHANICSBURG, PA 17055 Plaintiff Vs. KELLY H. BINGAMAN 2250 CANTERBURY DRIVE MECHANICSBURG, PA 17055 Defendant Court of Common Pleas No 08-3923 CIVIL TERM In CivilAction-Law To KELLY H. BINGAMAN, You are hereby notified that ERIE INSURANCE EXCHANGE the Plaintiff(s) has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment may be entered ag.4st you. A (SEAL) Curtis R. L , rothf tary Date JULY 2, 2008 By Deputy Attorney: Name: PETER R. KULP, ESQUIRE Address: MCCORMICK & PRIORE, P.C. FOUR PENN CENTER, SUITE 800 1600 JOHN F. KENNEDY BOULEVARD PHILADELPHIA, PA 19103 Attorney for: Pro Se Telephone: 215-972-0161 Supreme Court ID No. 203689 SHERIFF'S RETURN - REGULAR CASE NO: 2008-03923 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ERIE INSURANCE EXCHANGE VS BINGAMAN KELLY H SHAWN HARRISON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon BINGAMAN KELLY H the DEFENDANT , at 0018:50 HOURS, on the 11th day of July , 2008 at 2250 CANTERBURY DRIVE MECHANICSBURG, PA 17055 by handing to KELLY BINGAMAN DEFENDANT a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.00 Affidavit .00 Surcharge 10.00 .00 ?;/OP ? 38.00 Sworn and Subscibed to before me this of So Answers: R. Thomas Kline 07/14/2008 MCCORMIC By: day A. D. McCORMICK & PRIORE, P.C. By: David M. McCormick, Esquire Peter R. Kulp, Esquire Attorney ID #s: 14333 / 203689 Four Penn Center, Suite 800 1600 John F. Kennedy Boulevard Philadelphia, PA 19103 (T) 215-972-0161 (F) 215-972-5580 email: dmccormickgMccormickpriore.com pkulp2,mc? cormickpriore.com ERIE INSURANCE EXCHANGE 4901 LOUISE DRIVE MECHANICSBURG, PA 17055 V. KELLY H. BINGAMAN 2250 CANTERBURY DRIVE MECHANICSBURG, PA 1-1055 Attorneys for Plaintiff, Erie Insurance Exchange COURT OF COMMON PLEAS CUMBERLAND COUNTY NO.. 08-3923 CIVIL TERM CIVIL ACTION - Law MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION IN ACCORDANCE WITH THE PENNSYLVANIA NO FAULT MOTOR VEHICLE INSURANCE ACT. 40 P.S.1009.101 (REPEALED) 1. Plaintiff, Erie Insurance Exchange (hereinafter "Erie"), is an insurance carrier duly authorized to do business in the Commonwealth of Pennsylvania, with an office located as indicated above. 2. Defendant, Kelly H. Bingaman (hereinafter `Bingaman"), is an individual, resident and citizen of the Commonwealth of Pennsylvania whose current address is as indicated above. 3. On or about September 1, 1983 Bingaman was involved in a single-car, motor vehicle accident during which her 1978 Ford Mustang struck several utility poles, rata up an embankment, became airborne and struck the porch of a house, finally coming to rest on its roof in the yard of the house. MCCORMICK & PRIORS ATTORNEYS AT LAW 4. As the result of the aforesaid accident, Bingaman suffered, inter alia, an open skull wound, fractured nose, dislocated left thumb, cracked bone in her back, shattered left knee cap, a cut on her eye and minor cuts to her body. At the time of the accident, Erie was the insurer of the 1978 Ford Mustang, and Bingaman, under a policy of insurance issued in accordance with the then-current requirements of the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P. S. 1009.101, et seq. (Repealed). 6. Since the date of the accident, September 1, 1983, until the present time, Erie has provided certain no-fault benefits to Bingaman by the payment to various medical providers for her treatment and care. 7. The treatment for Bingaman through the years has included treatment with Dr. Stuart Hartman and Dr. Richard Hallock. 8. Dr. Hartman has indicated that Ms. Bingaman has undergone two lumbar spine laminectomies along with a cervical laminectomy and a spinal cord implant over the various years of treatment since the accident. 9. Dr. Hartman continuesto prescribe medications such as Actiq 800 mg, Actiq 1200mg, and Actiq 1600mg, as well as Percocet, Duragesic patch 100mg and Ambien to 13ingaman. 10. In addition, Dr. Richard Hallock has treated the plaintiff for her left knee injury and, as recently as January 2007, has performed an arthroscopy of the knee to repair a degenerative tear of the medial meniscus of that knee. 11. Because of the ongoing prescriptions that are extensive and expensive, and the recent procedure, Erie requested Bingaman submit to an independent medical examination in early 2007. 12. Bingaman, through her attorney, Lee C. Schwartz, Esquire, denied Erie's request for an independent medical examination by way of letter dated May 14, 2007, refusing to permit an MCCORMICK & PRIORS ATTORNEYS AT LAW independent medical examination. A true and correct copy of counsel's letter of Mqy 14, 2007 is attached hereto as Exhibit "A ". 13. Being denied the opportunity to have Bingaman physically examined, Erie had a series of Bingaman's medical records, particularly those associated with her prescription drug use, reviewed by Dr. Michael D. Wolk, M.D., a diplomat of the American Board of Independent Medical Examiners, Fellow of the American Academy of Physical Medicine and Rehabilitation and Fellow of the American Academy of Disability Evaluating Physicians. 14. After reviewing various records pertaining to Bingaman and her use of prescription drugs, Dr. Wolk authored a report dated July 12, 2007, calling into question the extensive, and in his opinion unnecessary, use of prescription drugs by Bingaman. A true and correct copy ofsaid report is attached hereto as Exhibit "B ". 15. Further, the totality of Bingaman's voluminous medical records have now been reviewed by Bruce Goodman, M.D., F.A.C.S., in an effort to determine the propriety and necessity of the continued treatment being funded by Erie. 16. As a result of his review, Dr. Goodman has authored a report dated May 21, 2008, in which he expressed the need for a physical examination of Bingaman in order to provide an accurate and complete evaluation of her current condition and treatment. A true and correct copy of said report is attached hereto as Exhibit "C". 17. Specifically, Dr. Goodman opined: In order to complete a thorough review of this individual's complicated, prolonged and sustained litany of complaints as well as determine the necessity for treatment in a direct and causal fashion to any precipitating influences and in an attempt to state any fact with a reasonable degree of medical certainty, it would be necessary for me to perform an independent medical evaluation ... I have made every attempt to review the massive records forwarded to me however I do MCCORMICK & PRIORE ATTORNEYS AT LAW feel my ability to express an unbiased professional opinion ... has been compromised by not evaluating this woman personally. See Exhibit "C ". 18. The Pennsylvania No-Fault Motor Vehicle Insurance Act has specifically provided for physical and mental examinations in section 1009.401 which stated in pertinent part: Whenever the mental or physical condition of a person is material to any claim that has been or may be made for past or future basic lost benefits, a court of competent jurisdiction may order the person to submit to a mental or physical examination by a physician or physicians... 40 P. S. 1009.401 (Repealed). 19. The Pennsylvanian No-Fault Motor Vehicle Insurance Act governs the instant request of Erie in this action, as the policy of insurance in question was issued prior to, and in effect in, September of 1983, a time when the act governed the rights and duties of insurance companies under policies providing no-fault benefits. 20. The No-Fault Act aforesaid requires that the carrier move for an examination and that such examination will be granted upon "good cause". 21. The continuing and extensive treatment of Binganian, twenty-four (24) years after the event giving rise to the claim, as well as the opinions of Dr. Wolk and Dr. Goodman that there is a question as to the reasonableness and necessity of the treatment being rendered, constitutes good cause shown to compel the requested examination. 22. Erie has the right to seek expert advice as to its obligations for continued coverage of benefits under the aforesaid act. 23. No judge has ruled on any other issue in this matter, to date. WHEREFORE, plaintiff, Erie Insurance Exchange, respectfullyrequests that this Honorable MCCORMICK & PRIORS ATTORNEYS AT LAW Court enter the accompanying Order compelling defendant, Kelly H, Bingaman, to submit to an independent medical examination within thirty (30) days of the entry of said Order. Respectfully submitted, McWDad RIORS, P.C. By: C mick, Esquire Peter R. Kulp squire Attorneys for Movant, Erie Insurance Exchange Dated: July 23, 2008 MCCORMICK & PRIORE ATTORNEYS AT LAW CERTIFICATE OF SERVICE I, Peter R. Kulp, Esquire, hereby certify that I am an attorney for plaintiff, Erie Insurance Exchange; that I am duly authorized to make this certification; and on this day, I did cause a true and correct copy of Erie's Motion to Compel an Independent Medical Examination of Kelly H. Bingaman to be forwarded, by First Class United States Mail, to counsel, addressed as follows: Lee C. Schwartz, Esquire TUCKER ARENSBURG, P.C. 1500 One PPG Place Pittsburgh, PA 15222 Attorney for Kelly H. Bingaman McCORMICK §i PRIORE, P.C. By: Dated: July 23, 2008 00 Peter R. Kulp, MCCORMICK & PRIORE ATTORNEYS AT LAW TUCKERiAUNSBERG Attorneys May 14, 2007 Ms. Cindy Moyer Erie Insurance Group 4701 Louise Drive P.O. Box 2013 Mechanicsburg, PA 17055 Re: Kelly H. Bingaman Dear Ms. Moyer: Lee C. Swartz lswartz@tuckerlaw.com Certified as a Civil Trial Advocate by the National Board of Trial Advocacy, A Pennsylvania Supreme Court Approved Agency My client, Kelly Bingaman, has advised me that you have been contacting her directly for a defense medical examination. She indicates that she recently advised you that I will be representing her and that she was not willing to undergo this examination. You have placed the burden on her to call Dr. Goodman. I do not believe that that is appropriate and suggest that you make the cancellation yourself: In addition, Mrs. Bingaman indicates that you told her you did not know that l was representing her. In fact, I had numerous correspondence with Scott L. Grenoble, Esquire, during the year 2005 which your company was attempting to change the arrangement=for payment of her medications. She says that you told her that you had not heard from me. I would have no reason to contact you directly in light of the fact that Mr. Grenoble was representing your company. Is it your position that you did not know that Mr.'Grenoble had been contacting me and that I represented Kelly as late as, May 10, 2005? If this is truly a- mistake on your part and your were not in the loop with respect to the Grenoble representation, I understand. Otherwise, your contacting my client directly is evidence of bad faith on behalf of Erie. From now on, please do not contact Kelly Bingaman. Deal with me directly. The No-Fault Motor Vehicle Insurance Act provided that D.M.E.'s must be agreed upon by the parties or otherwise a motion for permission to have such an examination needs to be filed. We do not agree that such an examination is necessary, particularly in light of the fact that you have been apprised of Mrs. Bingaman's total disability for many years, and it is unrealistic to argue that all of a sudden she is now in any different position than she was before. I suggest that you contact the G.M.E. physician and advise him that the appointment is cancelled since it is not the intention of either myself or Kelly to do this. I would also like to hear from you as to why you have been contacting her. directly when I represented her through your counsel as late as May 2005. Very truly yours, TUCKER ARENSBERG, P.C. Lee C. Swartz LCS:pjg cc: Kelly H. Bingaman 94179.1 Tucker Arensberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 p. 412.566.1212 f. 4 12.5 94.5619 www.tuckerlaw.com 111 N. Front Street P.O. Box 889 Harrisburg, PA 17108 p. 717.234.4121 (. 717.232.6802 jjf I? Northeas ,ern Rehabilitation Associates, P.C. I Physical Medicine & Rehabilitation li Main Office Locations: Morgan Medical Complex 5 Morgan Highway, Suite 4 Scranton, PA 18508 (570) 344-3788 Fax: (570) 969-9280 John Heinz Rehabilitation Campus 150 Mundy Street Wilkes-Barre, PA 18702 (570) 824-0930 Fax: (570) 824-7755 ?ark Plaza 1400 Bath Pike Ph Floor, Suite 400 3ethlehem, PA 18017 610) 954-9400 -ax: (610) 954-0333 1Vayne Memorial Medical t Professional Complex 00 Maple Avenue, Suite 3 Honesdale, PA 18431 570) 253-1005 ax: (570) 253-7868 Aditional Locations unkhannock lazleton ast Stroudsburg Iilliamsport ending Area Ilentown uakertown arrisburg enside ,wanda ncaster to College vertown w.nerebab.com July 12, 2007 Ms. Cindy Moyer Erie Insurance Group 4901 Louise Drive Rossmoyne Business Center P.O. Box 2013 Mechanicsburg, PA 17055 RE- Kelly Bingaman Erie Claim #- 500170321296 Date of Loss- 9/1/83 Dear Ms. Moyer, Recently you provided me with extensive records from 2003 through 2007` and asked me to provide a record review, particularly as it relates to. a drug utilization. I was asked to comment on the. types, combinations-; amount of and efficacy of prescription medications which Ms. Bingaman has been taking over the past five years. - According to the records provided Ms. Bingaman was involved in a motor vehicle accident on 9/1/83 when she was the driver of 1974 Mustang that she lost control of, struck a utility pole, then another, went up on an embankment and was air born striking the porch of a house. The vehicle came to rest on its roof in the yard of the house. Initial injuries were noted as open skull wound, fractured nose, dislocated left thumb, cracked bone in her back, shattered left knee cap, cut on her eye and minor cuts to her body. However, Ms. Bingaman has been treated for numerous problems beyond that including the diagnosis of chronic pain particularly involving her knees. She had been treated by Dr. Hallock who indicated degenerative tears of menisci, chondromalacia patella and had performed arthroplasty with chondroplasty. She had been treated for shoulder problems as well with concern about possible rotator cuff problems. There was even the concern for avascular necrosis of her knees which was ruled out. She had been under the care of Dr. Roll as well and had been referred to Dr. Stuart Hartman in December of 1998 for pain management. She had two lumbar spine laminectomies, a cervical laminectomy and subsequent spinal cord implant. She had had epidural steroid injections and various 0 1 RE: Kelly Bingaman Claim #: 500170321296 Page 2 medications. -Dr. Hartman had diagnosed her with fibromyalgia, right sacroiliac syndrome, right piriformis syndrome and he was treating her with Actiq, Percocet and Duragesic every two days. He had prescribed various forms of therapy as well. Dr. Hartman had also prescribed various types of beds, hot tubs, and other non-pharmaceutical forms of treatment. Ms. Bingaman underwent an MRI scan of the cervical spine in April of 2004 indicating status post laminectomy C5-6, no specific spinal stenosis, small left paracentral disc herniation at.C5-6, actually smaller than the previous examination without any new findings. That previous examination being from January 2003. She also had an MRI scan of her left knee in 2004 with tearing of the medial meniscus and, as stated above, having been treated by Dr. Hallock with arthroscopy and chondroplasty. She was also treating with a licensed psychologist, Frank DePrima, indicating a diagnoses of cognitive disorder, pain disorder associated with both psychological factors and a general medical condition. Dr. DePrima indicated on several occasions her husband had attended her therapy sessions in an effort to clarify illness reinforcers and wellness disincentives contributing to her physical dysfunction and overall deteriorated functioning. On 4/23/04 Dr. DePrima felt it was unlikely that she would make radical improvements in physical or psychological functioning. There were records in 2006 indicating Ms. Bingaman's symptoms had become worse after an assault by her husband and there was a handwritten note authored by Ms. Bingaman regarding her concern that her husband was not being faithful. In the meantime, Dr. Hartman had been maintaining her on Actiq 1200 mcg. three to four a day as needed for severe pain, Duragesic 100 mcg. patch, two every two days, Actiq 800 mcg. two to a three a day for moderate break through pain and Ambien 5 mg and when she wakes up from that she was to take the Sonata 10 mg. In addition, at night if she had severe pain she was to take Percocet. She uses Lidoderm as needed, Nasacort to decrease the skin irritation from the Duragesic patch. It was Dr. Hartman's opinion that the treatment he was rendering with regards to the medications was reasonable, appropriate and necessary for chronic pain behavior RE: Kelly Bingaman Claim #: 500170321296 Page 3 DISCUSSION: Specifically with regards to the medications I find there is lack of documentation to indicate the reasonableness and necessity of the medications being prescribed for this individual. This is based upon several factors. First, there is no documentation within the records that this individual is truly receiving any benefit from the medications. It would appear from the five years' worth of records I reviewed that there is no improvement either symptomatically from the medications or functionally. Secondly, she is being prescribed medication, i.e. Actiq, which is not appropriate for non- malignant chronic pain. Thirdly, she is being prescribed another narcotic, Duragesic, that is not in accordance with the manufacturer's recommendations for use, that being 100 mpg. two patches every two days. Additionally, there is no documentation within- the five years' worth of records I reviewed of there being a narcotic agreement nor has there been any type of urine testing to verify appropriate compliance with the medication being prescribed. Thus, it is my opinion, with a reasonable degree of medical certainty, that for the reasons noted above, the medications which being prescribed are not medically reasonable or necessary. - REFERENCES 2007 Physicians Desk Reference Norton, "The Use of Opioids in the Treatment of Non-malignant Pain, Clinical Issues and Guidelines" American Journal of Pain Management, Volume 7,2 April 1997 Michael D. Wolk, M.D. Diplomate, American Board of Independent Medical Examiners Fellow, American Academy of Physical Medicine and Rehabilitation Fellow, American Academy of Disability Evaluating Physicians MDW:reo 3 BRUCE GOODMAN, MD 4800 t1NGLESTOWN ROAD HARRISBURG PA 17112 (717) 545-5072 (TELEPHONE) (717) 5455074 (FAX) May 21, 2008 The Prime Network 111 Presidential Boulevard Suite 173 Bala Cynwyd, PA 19004 RE. Kelly Bingaman To Whom It May Concern: Per your request, I.. have had the opportunity of reviewing a voluminous amount of records Involving the aforementioned Individual. There was an initial evaluation referable to an x-ray report from the Hershey Medical Center as of September 25, 1983. There were negative chest, fadal bones, cervical spine and left knee x-rays without any evidence of a traumatic influence. The thoracolumbar spine as of October 4, 1983 revealed evidence of some compression fractures involving the 12th thoracic and V` lumbar vertebra- She was then evaluated by an orthopedic surgeon, Rex A. Herbert, D.O. on the 8ti' of November 1983. At that time, her history revealed she had been injured in a motor vehicular accident occurring on September 29, 1983 as her car ran off the road Into a ditch and did go airborne striking a home at the second story level- She had been taken to the emergency room at Hershey and was released following treatment for complaints referable to her low back, left knee and left upper extremity. Note was made of a dislocation of the left thumb which had been reduced and placed in a splint. A description ensued regarding a laceration of the left knee which was treated with primary suturing and a minimal compression fracture of T12 and L1 identified by films., She had been given a grace at a later visit to an orthopedic clinic. RE: Kelly Bingaman May 21, 2008 Page 2 Three weeks later, she was seen by Dr. Herbert and at that time was complaining of discomfort which was interpreted as possibly being a result of cervical disc disease so that a myelogram had been performed. The nerve conduction study revealed severe hyper-irritabillty of muscles innervated by various nerve roots. She had a myelogram of the cervical area on the 5th of December 1983- A review of the reoords indicates that her myelogram study was interpreted as being normal. Her complaints referred to headaches and shooting pain in the anterior thighs since the myelogram had been performed. Neurologically, she was normal. I note that an examination of the left knee revealed some quadriceps weakness without patellofemoral crepitation or:any other finding compatible with an internal derangement. She had been seen by a neurologist at Hershey, Robert W. Brennan, M.D. in June 1984 and at that time her history related to recent episodes of left arm numbness. Dr. Brennan felt this woman sustained migraine- headaches. Because of the length of time lapse from the initial traumatic episode in September 1983 until - her evaluation of June 1984, it was Dr. Brennan's?-opinion that her symptoms were not directly and causally related to her history of trauma. On the 300 of April 1987, Dr. Kalenak did perform an arthroscopy of this woman's left knee and found a Grade I chondromalacia. Her symptoms related to the patellofemoral joint following the trauma sustained in 1983. It was Indicated in the report that she denied any symptoms of joint line tenderness or effusion. At arthroscopy, a detailed evaluation revealed no meniscal tears or hypermobility. Only a mild amount of chondromalacia patella was described as present. Chondromalacia is softening of the cartilage. Her history of low back pain extended into 1990. At that time, a CT Scan performed in June of that year revealed a marked diffuse disc bulge at 1-3-0 and a possible rupture on the left at L4-1-5. An MRI was then performed and this study, as of July 17, 1990 revealed findings compatible with dehydration and RE: Kelly Bingaman May 21, 2008 Page 3 degenerative changes of the intervertebral disc spaces. There was no description of disc herniation however there were changes of a degenerative nature at three levels from L3-S1. This interpretation was forwarded by a very experienced radiologist with MRI Interpretations, J. Russell Croteau, M.D. She did have.a negative thoracic MRI on that date. She was seen in May 1991 by a neurosurgeon, Barry Moore, M.D. A review of this records indicates that Dr. Moore felt the MRI scan revealed an obvious defect on the left at L5-S1 but a smaller significant defect at 1-4-1-5. This was some nine months after her. previous MRI evaluation which had been interpreted by Dr. Croteau which was essentially normal in terms of disc herniation. Dr. Moore suggested a surgical procedure and a lumbar laminectomy was performed at L4-L5 and L5-S1 with the diagnosis of lumbar spondylosis. An office note by her attending surgeon, Dr. Moore, three months post operatively, indicates this woman had developed a lumbar meningocele. Accordingly, a re-exploratlon of the lumbar laminectomy was performed and a repair of a pseudomeningocele was accomplished without clifficulty. Following this operation, I note in June 1992, reference -was made to this woman having flare-ups of back and leg pain. An implantable epidural stimblator was suggested and an MRI had been performed with gadolinium as of June 1992. This study revealed no evidence of spinal stenosis and/or recurrent herniated nucleus pulposus. A course of physical therapy was instituted in June 1992 and it was discussed with the family using a percutaneous trial stimulator which would be a prelude to implant surgery if it were effective in ameliorating her pain. A note of a myelogram performed on July 22, 1994 Indicates that for the first time this woman had pain in her neck, both arms and left leg. The myelogram described a conjoined nerve root on the right at L5-S1 as well as the previous laminectomies and a very minimal disc bulging at several levels of the lumbar vertebrae. She was then followed by the physiatrist through 1995 with evaluations and treatment by Stephen Morganstein, D.O. At that time, she had some improvement following prolonged treatments. RE: Kelly Bingaman may 21, 2006 Page 4 In March 1996, an evaluation had been performed by Lance Yarus, D.O. as of March 8, 1996. I had the opportunity of reviewing the evaluation followed by a repeat evaluation of Mardi 20, 1996. In June 1996, a CT Scan-of the cervical-spine-was-performed without any -evidence-of- a hemia-ted--intervertebrai disc.--The-arthritic-changes-were -again - identified at the facet joints of the C6-C7 level bilaterally„ She did have a posterior laminectomy of C5-C6 and lysis of adhesions. She was reevaluated by her attending neurosurgeon, Barry Moore, M.D. with complaints referable to neck pair! as well as bilateral upper extremity radiculitis„ This was a new problern with a two to three month history of the aforementioned complaints. In November 1997, a physiatrist, Malik Momin, M.D. did treat her for low back pain and possible trigger point injections. Epidural steroid injections were performed under fluoroscopic guidance in October 1998 in deference to a lumbar radiculitis. In December -1998,- she did have a behavioral medicine evaluation which I had the opportunity of reviewing followed by a lumbar myelogram: The myelographic evaluation was performed because of a complaint of one month history relating to severe right hip and leg pain. The myelogram revealed some distortion of the thecal. sac on the left at the L5-S1 level. There were no significant abnormalities kientlfled. The epidural stimulator remained in place„ A CT-Scan was performed post myelography and revealed only the laminectomy defects in the lumbar area with again some distortion of the thecal sac at the L5- S1 level representing post operative changes as well as a lesser degree change at the L4-L5 level. Throughout 1999, she had been evaluated and treated by another physiatrist, Stuart A. Hartman, D.O. Her complaints, at that time were referable to headaches and leg pain, Dr. Kalenak saw this woman because of a complaint that "her arm feels cold and achy" She presented some global tenderness about the left shoulder anteriorly as well as the greater tuberosity area. She had a limited range of motion in all phases- Her x-rays were normal other than demonstrated an end chondroma In the proximal phalanx in the fifth ray. RE: Kelly Bingaman May 21, 2008 Page 5 I note an orthopedic surgeon, Ronald Lippe, M.D. referred to this woman being involved in a motor vehicular accident occurring on June 21, 1999. At that time, she was driving a vehicle and was ready to take a left turn when she was struck on the left side of the car. Allegedly, her vehicle was totaled and she had pain in the right ankle. She continued to be followed by Dr.. Lippe for several visits. There were diagnoses from her multiple orthopedic visits referable to a subluxation of the right ankle tendon, questionable reflex sympathetic dystrophy of both hands, a contusion of the left shoulder, arm, wrist, hand and thumb with a possible traumatic chondrosis. An office note as of July 19, 1999 authored by her attending neurosurgeon, Dr_ Moore referred to her visit being "for a new problem". This referred to a motor vehicular accident of June as previously documented. She:.did have a negative series df films as well as a CT-Scan of the brain which - y. were felt to be normal. I note in September 1999, a- repositioning was performed on her spinal stimulator under -local anesthesia-with :C-arm control. She continued to have discomfort in the area-of the 16ft knee particularly with descending stairs and was diagnosed as having a patella subluxatibn with some medial retinacular strain by Dr„ Kalenak. She had been treated with a good deal of physical therapy. In January 2001, she underwent a cervical epidural steroid injection at the C6-C7 and C7-T1 facet joints on the right Her pain treatment program continued with implantation of a intraiftecal catheter and a drug pump for intrathecal drug delivery. This procedure was performed on the 7"' of November 2001 by Dr. Ostdahl. I do note that along the line, she had been diagnosed as having a personality disorder by her neurosurgeons. Lumbar and thoracic myelography as of January 8, 2002 revealed no abnormalities. The drug pump did require some repositioning at an appropriate time in 2002. Her diagnosis refers to a chronic pain syndrome as dictated by a physlatrlst, Stuart A. Hartman, D.O. An MRI of RE: Kelly Bingaman May 21, 2008 Page 6 the cervical spine was repeated in January 2003 as well as an MRI of the lumbar spine. The cervical spine revealed only a previous laminectomy. A left paracentral epidural lesion was felt to represent either disc herniation or a prominent osteophyte. There was some flattening of the cord at that level. -_- -An-Fri-R1--ef-the4um- ba-r-spine-revealed- anly--some-fora-mirtai-stenosis-and-a-small annular tear at 1-2-1-3. The MRI of the cervical spine was repeated again In April 2007 because of a complaint of neck pain and bilateral upper extremity paresthesias. A small left paracentral disc herniation at CS-C6 actually appeared to be smaller Chan that previously described. An MRI of the left knee on April 7, 2004 revealed some tearing of the medial meniscus with a joint effusion and possible chondromalacia patella. She did have an eventual arthroscopy of the-knee although this report was not available for review, I note that at a five week post arthroscopy level, she continued to have diffuse pain- She had been diagnosed as having-a pate]lofemoral syndrome. Dr. Hallock continued to follow her and she did have a bone scan which revealed no abnormality. Dr. Hallock discharged her with a pm return since he felt he had nothing further to offer her as of December 21, 2004, In October 2005, she was seen by Dr. Hallock in deference to having diffuse tenderness in tf-re knee. Reference was made to the arthroscopic treatment she had previously had referring to a tom medial meniscus. She continued to have pain following the arthroscopy. Again, Dr. Hallock felt nothing further could be offered this woman in terms of affording her comfort in the knee. Because of the persistence of symptomatology, she was seen on several other occasions and eventually Dr. Hallock performed a routine film to rule out an avascular necrosis of the medial femoral condyle which was not identified. RE: Kelly Bingaman May 21, 2008 Page 7 In January 2006, she was again evaluated by a physiatrist and underwent bilateral sacroiliac injections of steroid. Apparently a follow-up MRI Scan of the knee revealed evidence of degenerative changes and irregularity of the medial femoral condyle compatible with a chondromalacia patella..... Dr. Hallock suggested a second arthroscopic debridement and perhaps the use of some Intra-articular steroid„ As of January2007, she did undergo the aforementioned procedure consisting of a chondroplasty of the tibial plateau and patella. The diagnosis consisted of an old degenerative tear of the medial meniscus, status post resection, a Grade II and III chondromaiada with involvement of the medial femoral condyie and medial tibial plateau and Grade III lateral tibial plateau and patella changes. _ She was seen by Dr. Hallock in deference to having left shoulder pain which started several weeks prior to that time, She did have an Injection Into the subacromial space and was scheduled for arthroscopic evaluation. Routine x-rays of the shoulder revealed no abnormalities. The last information I had to review refers to a letter directed to Erie. Insurance and authored by her attending physiatrist, Dr. Stuart A. Hartman. In order to complete a thorough review of this individual's complicated, prolonged and sustained litany of complaints as well as determine the necessity for treatment in a direct and causal fashion to any precipitating influences and in an attempt to state any fact with a reasonable degree of medical certainty, it would be necessary for me to perform an independent medical evaluation. This would permit me to obtain a history from this individual in a more thorough fashion and permit me the opportunity of evaluating her present physical condition. I have made every attempt to review the massive records forwarded to me however I do feel my ability to express an unbiased professional opinion and I take this responsibility very seriously has been compromised by not evaluating this woman personally. RE: Kelly Bingaman May 21, 2008 Page 8 If there are any further questions, please do not hesitate to contact me. Very tr,MV yours, l Bruce G d a M.D., C.S. BG/jh r4 ERIE INSURANCE EXCHANGE, Plaintiff V. KELLY H. BINGAMAN, Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-3923 CIVIL TERM 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. By way of further answer, Respondent has required treatment of numerous other physicians. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. By way of further answer, it is averred that Plaintiff did not then nor has it ever demonstrated good cause for a medical examination under § 401 of the No-Fault Motor Vehicle Insurance Act. 13. After reasonable investigation, Respondent is without knowledge sufficient to form a belief as to the proof of the averment contained herein and if relevant, proof thereof is demanded. 14. The report speaks for itself; however, Respondent avers that based upon the content of Dr. Wolk's report, it is evident that he did not review her current medical records and, thus, this report does not demonstrate good cause. 15. After reasonable investigation, Respondent is without knowledge sufficient to form a belief as to the proof of the averment contained herein and if relevant, proof thereof is demanded. 16. It is admitted that Dr. Goodman offered a report; however, it is averred that Dr. Goodman was not in receipt of current medical and psychological information on the Respondent which would have enabled him to express an opinion with respect to the need for medication. 18. This paragraph sets forth a legal conclusion which requires no answer. 19. This paragraph sets forth a legal conclusion which requires no answer. 20. This paragraph sets forth a legal conclusion which requires no answer. 21. This paragraph sets forth a legal conclusion and is therefore denied. 22. Admitted in part and denied in part. It is admitted that Erie Insurance Exchange has a right to seek any type of expert advice that it chooses. It is denied that Erie is entitled to any relief, irrespective of the advice received by an expert inasmuch as payments have been made to Respondent for a period of twenty (20) years before Erie ever questioned the need for the medications and Erie was aware that the medications were necessary to allow the Respondent to function and to mitigate her pain. Inasmuch as the medications have not changed over a period in excess of a decade, Erie is barred by [aches from contesting the need. 23. Admitted. WHEREFORE, the Respondent requests that the Honorable Court deny the Motion to Compel an Independent Medical Examination. TUCKER ARENSBERG, P.C. By: *eC. SWa rrl: Pa. Bar I.D. No. 07258 111 N. Front St., P.O. Box 889 Harrisburg, PA 17108-0889 Telephone: (717) 234-4121 Facsimile: (717) 232-6802 ATTORNEYS FOR RESPONDENT CERTIFICATE OF SERVICE AND NOW, this otq --t". day of July, 2008, I, LEE C. SWARTZ, hereby certify that I have this day served the within Answer by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Peter R. Kulp, Esquire McCormick & Priore, P.C. 4 Penn Center, Ste. 800 1600 JFK Boulevard Philadelphia, PA 19103 . Swartz Lee 4f 101919.1 C C-3 ERIE INSURANCE EXCHANGE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KELLY H. BINGAMAN : NO. 2008 - 3923 CIVIL TERM ORDER OF COURT AND NOW, this 6TH day of AUGUST, 2008, a Rule is issued upon Defendant Kelly H. Bingaman to Show Cause why the "Motion to Compel Independent Medical Examination" should not be granted. Rule returnable thirty (30) days after service. ee C. Schwartz, Esquire David M. McCormick, Esquire ,Wter R. Kulp, Esquire S :sld V Edward E. Guido, J. JUL 312008 Gj ERIE INSURANCE EXCHANGE, Movant V. KELLY H. BINGAMAN, Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-3923 CIVIL TERM MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION For over 20 years, Kelly Bingaman received various medications prescribed by numerous physicians on her behalf. In 2005, Erie Insurance Exchange decided that it would attempt to deny her the lifetime benefits to which she was entitled under No-Fault Motor Vehicle Insurance policy at the time of her accident back in 1983. In so doing, Erie acknowledges the fact that it has to show good cause in order to obtain an independent medical examination. The fact that the Respondent has refused to submit to a physical examination is insufficient to establish good cause. Government Employees Insurance v. Schroeder, 7 D&C 3d 786 (Phila. 1978). The only stated support for Erie's motion is a report from Dr. Goodman indicating that he looked at all the medical records and could not render an opinion without examining Mrs. Bingaman, and a report from Dr. Wolk wherein he admits that the Respondent's physician, Dr. Hartman, has been maintaining the Respondent on the medications "as needed for severe pain." He further admits Dr. Hartman's opinion that the treatment rendered is reasonable, appropriate and necessary for chronic pain behavior (page 2 of Dr. Wolk's report). Notwithstanding these admissions, Dr. Wolk goes on to opine that in effect Dr. Hartman, Respondent's treating physician, is wrong in his treatment of his patient. Respondent respectfully contends that this type of opinion is not "good cause" for a medical examination by physicians who have not treated the patient and who are probably lacking the most recent medical records, i.e. a report from Dr. Hartman resulting from an April 28, 2008 consultation wherein he fully explains the reasons for the need for the medication. In a report of April 24, 2008, by Dr. Stein, a psychologist who has attempted to help Mrs. Bingaman cope with her pain, and which indicates that a "major motor vehicle accident" enables her to maintain her weight on the drug Actiq prescribed by Dr. Hartman. Copies of these reports are attached to this Memorandum of Law as Exhibits "A" and "B." It is obvious that Erie is trying to terminate the medications provided by Mrs. Bingaman's treating physicians which have enabled her to cope with her serious disability which has been brought about by her 1983 automobile accident. In light of the supporting medical records from Mrs. Bingaman's treating physicians, as contrasted with Dr. Wolk's limited record review, good cause has simply not been shown by Erie. The purpose of the No-Fault Motor Vehicle Insurance Act was to provide lifetime medications to those persons who needed them. The purpose would not be fulfilled by denying Mrs. Bingaman the only medical benefits which enable her to obtain relief. Respectfully submitted, TUCKER ARENSBERG, P.C. By: IN Me C. Swart Pa. Bar I.D. No. 07258 111 N. Front St., P.O. Box 889 Harrisburg, PA 17108-0889 Telephone: (717) 234-4121 Facsimile: (717) 232-6802 ATTORNEYS FOR RESPONDENT 101920.1 CERTIFICATE OF SERVICE AND NOW, this -AQ+v?- day of July, 2008, I, LEE C. SWARTZ, hereby certify that I have this day served the within Memorandum of Law by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Peter R. Kulp, Esquire McCormick & Priore, P.C. 4 Penn Center, Ste. 800 1600 JFK Boulevard Philadelphia, PA 19103 Le C. gWarti 101920.1 patient Kell Bin aman .. - . Qate sif Birtkl '04124!1961 $¢ciai Se?tlri 161-46-2.178 ?t -triturv IOnset - t. - . FirstConstilt t rtptayer No Patient MOW Available June 23, 2008 Date Of Service: Friday, June 13, 2008 Provider: Stuart A. Hartman, D.O. Chief Complaint • Back problem. (worsening) • injury of the posterior neck and the lumbar back. (no change) • Aching muscles. (controlled) (no change) • Spasms of the posterior neck, the upper back, and the lumbar back. (inadequately controlled) • Pain of the shoulder on the left. (inadequately controlled) • Numbness of the foot, the ankle, and the lower leg on the left, comes and goes, occasionally feels weak and she falls. She feels crooked and radiates down to feet. (inadequately controlled) History of Present Illness • Pain. Location: the posterior neck, the upper back, the lumbar back, the sacral region of the back, the buttocks bilaterally, and the posterior shoulder on the left. Quality: condition status (not adequately improved and no change), similar condition (persistent problem), symptom status (appeared at time of incident and increases with exertion), and pain (estimated intensity level 7110 today, best 4110 and worst 10110, aching, burning, sharp, stabbing, and constant). Context: Available medical records were reviewed., Recheck/progress note is available for review., and condition interferes (with activities of daily living, with normal lifestyle, with sleep, and with work activities). Modifying factors: medication (was effective and condition controlled with medication) and current treatment (Patient reports that stretching helps, pain medications, Patient is utilizing an Rs Stimulator which is helping when it works, and steroid injections). Much worse with the weather. She has gained about 15 lbs. Review of Systems Musculoskelefal: Stuart A. Hartman, D.O. 10:27 AM 4th & Willow Streets, 3rd Fl • P. O. Box 1110 • Lebanon, PA 17D45-(717)272-1050 -Fed Id 23-2917527 Page 1 of 4 EXHIBIT "A" • Reports arthritis, spine problems (history of back injury and history of neck injury), degree of disability (unable to return to any gainfut employment, cares for personal needs, and minor limitation of ambulation), muscular weakness, myositis, posture abnormalities, and abnormal muscles. • Going to the Y for pool and light weights at least 4 days a week as tolerated. Meds are helping alot, but Roxicodone and Oxyfast gave her GI problems. Mood is worse and not stable on Lexapro. RS STIM helps at times. She is not using any device today. (inadequately controlled) • Denies fractures, kidney or UTI symptoms, and recent trauma or injury. ROS is otherwise noncontributory. (no change) Neurological: • Reports limitation of motion of neck, unusual pain, paresthesia or numbness, and significant memory loss. (no change) • Denies incoordination, invoiuntary movements, motor skill loss, muscular atrophy, convulsions or seizures, incontinence of urination or defecation, and dizziness. (no change) Examination Muscu oskeletal: • NormaL Examination of the musculoskeletal system, unless otherwise noted, reveals normal findings. Stability was assessed. Muscle strength was assessed. Muscle tone was assessed. Gait and station was evaluated. No scoliosis. No kyphosis. Improved mobility today. • Palpations. Palpated the posterior neck, the upper back, the posterior shoulder. the trapezius area, the lumbar back, the sacral region of the back, and the buttocks bilaterally: pain and tenderness. Today she was tender left piriformis, right hip flexors. • Range of Motion. Active cervical spine ROM: abnormal, reduced ROM, with pain, with restrictions, and without radiating pain. Active thoracolumbar spine ROM. Flexion (normal 90 degrees): abnormal, with pain, and measured at 75 degrees. Extension (normal 30 degrees): abnormal, measured at 0 degrees, with pain, and with restrictions. Left shoulder decreased ROM all planes. (controlled) (no change) Neurological: • Normal. Testing, palpation, and inspection of the neurological system, unless otherwise noted, revealed the following. Oriented to time, place and person. Evaluation revealed normal speech and comprehension. Estimate of mood and affect show no evidence of depression, excessive anxiety, or agitation. Deep tendon reflexes are brisk and symmetrical. Sensation is normal in all areas tested. Coordination and fine motor skills are in normal range. (no change) Diagnosis 721.1 Cervical spondylosis with myelopathy 724.6 Disorders of sacrum 729.1 Myalgia and myositis, unspecified 722.2 Displacement of intervertebral disc, site unspecified, without myelopathy 724.2 Lumbago 724.4 Thoracic or lumbosacral neuritis or radiculitis, unspecified 719.46 Pain in joint involving lower leg 722.4 Degeneration of cervical intervertebral disc 726.5 Enthesopathy of hip region Stuart A. Hartman, D.O. 10:27 AM 4th & Willow Streets 3rd FI • P. O. Box 1110 • Lebanon PA 17046 • (717) 272-1050 - Fed Id 2"22917527 Page 2 of 4 Management Procedures: Treatment Assessment: • No assessment will be made until the patient undergoes further treatment. • PT and YMCA for pool and exercise program. Continue medications and injections as needed. • Actiq 1200 mcg, DC 800's for pain and function. Injections. Trial of Celexa for mood. • See diagnosis for assessment • The patient is at MMI but continues palliative treatment. • Stable on medications without adverse effects, no SE from Actiq. • Stable on opioids, denies obtaining any opioids from any other provider or source, misusing or selling medications. • The patient's overall condition: remains status post MVA, remains the same, and stable. She has not fully recovered and treatment is medically necesary and reasonable. She should continue with her hot tub for theraputic stretching exercises to help with pain management; • No assessment will be made until the patient undergoes further evaluations. MR] lumbar spine reviewed, stable. Treatment Plans: • The nature of the diagnosis was discussed with the patient and/or the parent, spouse or guardian, The patient andlor parent, spouse or guardian expressed understanding and all questions were answered to their satisfaction. They are aware that they can call me if they have further questions. • The patient will continue with her RS Stimulator when she gets it repaired. • Return in 4 weeks. • Injection of trigger points. Consent: procedure explained and patient acknowledged understanding.. Skin preparation: Office staff present, and cleaned with alcohol. Medication used: 1) the left piriformis medially with 5 cc 2% Lidocaine and 2 mg Celestone, 2) the right hip flexors with 4ccs of 2% Lidocaine and 3mg Celestone and 3) buttock with 30 mg Toradol IM. Relief of pain and tenderness accomplished. There was no excessive bleeding or weakness. Medication Allergy: • None Discontinued Medications: • None Current Medications: • Actiq 1200 MCG 1 every 6 hours (Buccal) as needed for severe pain • Fill 6/27/08 (Quantity: 90 Refills: 0) [Prior - 06/18120081 • Actiq 1600 MCG 1 q8h (every 8 hours) (Buccal) as needed for SEVERE pain BN (Quantity: 30 Refills: 0) [Prior - 06/13/20081 • Actiq 800 MCG (Buccal) 1 every 6 hours as needed for pain BN • (Quantity: 30 Refills: 0) [Prior - 06118/20081 • Ambien CR 12.5 MG 1 Tab CR hs (bedtime) (Oral) as needed (Quantity: 30 Refills: 0) [Prior - 06/09/20081 • Celexa 40 MG 1 Tab hs (Oral) 3 month supply (Quantity: 90 Refills: 0) [Prior - 0412812008] Stuart A. Hartman, D.O. 10:27 AM 4th & Willow Streets. 3rd R • P. O. Box 1110 • Lebanon, PA 17046 • 1 272-1050 -l=ed Id 23-2917527 Page 3 of 4 • Duragesic-100 100 MCGIHR 2 q 2 days (Transdermal) SN • (Quantity: 30 Refills: 0) [Prior- 06109/2008] • Duragesic-50 50 MCGIHR 4 (every 2 days) (Transdermal) BN (Quantity: 30 Refills: 0) [Prior - 06117120081 • Toradol Oral 10 MG 1 Tab every 6 hours (Oral) as needed for pain, FOLLOWING TORADOL INJECTION (Quantity: 10 Refills: 0) [Prior - 06113/2008] ea;?? Board Certified in Physical Medicine and Rehabilitation cc: , , , Stuart A. Hartman, D.O. 10:27 AM 4th & Willow Streets, 3rd FI - P. O. Box 1110 -Lebanon, PA 17046. ('?1'7)272-1050 • Fed ld 23-2917527 P3 e 4 ai 4 Center for N urobehaviorar Health, Ltd. 217. Lan Licensed Psychologists Neurorehabilitation Specialists Board Certified in Clinical Neuropcychology* I i i Re: Kelly Bingaman i Dear Dr! Hartman: As you may remember, I continue Organic !Mood Disorder, which w; she has experienced throughout he and a major motor vehicle accider, Kelly reports that she has been on of this med over other opiates, by 1 maintain her weight on Actiq. On anorexia is related to extreme strew when she is on oral opiates. The last time she was on oral opia written ?ou at that time. Kelly rep currently weighs 102 lbs and is 5'! could be further weight loss. Please feel free to contact me if th Sincerely, Robert M. Stein, Ph.D. Clinical Ncuropsychologist Licensed Psychologist ;ency Executive Offu:es Embassy Drive Suite 366 aster, Pennsylvania 17603 (717) 392-6061 Robert M. Stein, ilh.D. Cynthia Socha-Ge got, Ph.17., ABPP-CN* April 24, 2008 work with Kelly Bingaman, who suffers fro an most likely caused by a number of blows to a head life, with multiple episodes of loss of conscio sness that resulted in head injury and multiple fract res. :ctiq for the past three years. The advantage ;r report and by observation, is that she is ab ral opiates she becomes anorexic. Some of but a significant component appears to be F s, she dropped nine pounds in one week, and i its that she will be taken off Actiq again. She I do fear that if she is placed on oral opiate. are any questions. Thank you. r Kelly to had there braincenterCsomxn.com 41' L-AX (717) 431-2014 ? www.nearohealtiz.org XHIBIT "B" TUCKER ARENSBERG Attorneys July 29, 2008 Curt Long, Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013-3387 Re: Erie Insurance Exchange v. Kelly H. Bingaman No. 08-3923 Civil Term Dear Mr. Long: Lee C. Swartz Iswartz@tuckerlaw.com Certified as a Civil Trial Advocate by the National Board of Trial Advocacy, A Pennsylvania Supreme Court Approved Agency Enclosed please find the original and copies of Answer of Respondent to Motion to Compel Independent Examination, together with a Memorandum of Law in Opposition to this motion. Please file the originals and return the clocked-in copies to me in the self- addressed, stamped envelope also enclosed. Thank you for your kind cooperation. Sincerely yours, TUCKER ARENSBERG, P.C. Le C. Swartz LCS:pjg enclosures cc: Peter R. Kulp, Esquire 102620.1 Tucker Arensberg, P.C. 111 N. Front Street P.O. Box 889 Harrisburg, PA 17108 p. 717.234.4121 f. 717.232.6802 www.tuckerlaw.com 1500 One PPG Place Pittsburgh, PA 15222 p. 412.566.1212 f. 412.594.5619 ERIE INSURANCE EXCHANGE, Movant V. KELLY H. BINGAMAN, Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-3923 CIVIL TERM MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION For over 20 years, Kelly Bingaman received various medications prescribed by numerous physicians on her behalf. In 2005, Erie Insurance Exchange decided that it would attempt to deny her the lifetime benefits to which she was entitled under No-Fault Motor Vehicle Insurance policy at the time of her accident back in 1983. In so doing, Erie acknowledges the fact that it has to show good cause in order to obtain an independent medical examination. The fact that the Respondent has refused to submit to a physical examination is insufficient to establish good cause. Government Employees Insurance v. Schroeder, 7 D&C 3d 786 (Phila. 1978). The only stated support for Erie's motion is a report from Dr. Goodman indicating that he looked at all the medical records and could not render an opinion without examining Mrs. Bingaman, and a report from Dr. Wolk wherein he admits that the Respondent's physician, Dr. Hartman, has been maintaining the Respondent on the medications "as needed for severe pain." He further admits Dr. Hartman's opinion that the treatment rendered is reasonable, appropriate and necessary for chronic pain behavior (page 2 of Dr. Wolk's report). Notwithstanding these admissions, Dr. Wolk goes on to opine that in effect Dr. Hartman, Respondent's treating physician, is wrong in his treatment of his patient. Respondent respectfully contends that this type of opinion is not "good cause" for a medical examination by physicians who have not treated the patient and who are probably lacking the most recent medical records, i.e. a report from Dr. Hartman resulting from an April 28, 2008 consultation wherein he fully explains the reasons for the need for the medication. In a report of April 24, F 2008, by Dr. Stein, a psychologist who has attempted to help Mrs. Bingaman cope with her pain, and which indicates that a "major motor vehicle accident" enables her to maintain her weight on the drug Actiq prescribed by Dr. Hartman. Copies of these reports are attached to this Memorandum of Law as Exhibits "A" and "B." It is obvious that Erie is trying to terminate the medications provided by Mrs. Bingaman's treating physicians which have enabled her to cope with her serious disability which has been brought about by her 1983 automobile accident. In light of the supporting medical records from Mrs. Bingaman's treating physicians, as contrasted with Dr. Wolk's limited record review, good cause has simply not been shown by Erie. The purpose of the No-Fault Motor Vehicle Insurance Act was to provide lifetime medications to those persons who needed them. The purpose would not be fulfilled by denying Mrs. Bingaman the only medical benefits which enable her to obtain relief. Respectfully submitted, TUCKER ARENSBERG, P.C. By: LA - e C. Swartz Pa. Bar I.D. No. 07258 111 N. Front St., P.O. Box 889 Harrisburg, PA 17108-0889 Telephone: (717) 234-4121 Facsimile: (717) 232-6802 ATTORNEYS FOR RESPONDENT 101920.1 I CERTIFICATE OF SERVICE AND NOW, this -k4+,, day of July, 2008, 1, LEE C. SWARTZ, hereby certify that I have this day served the within Memorandum of Law by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Peter R. Kulp, Esquire McCormick & Priore, P.C. 4 Penn Center, Ste. 800 1600 JFK Boulevard Philadelphia, PA 19103 Le C. Swarti 101920.1 -' Patient :: Kell Bin aman r Qate f Birth '0412411061 Social Seen 161-46-2179 Ih u f, Onset FirstCon;su?- . t • ?npi4xer ., No Patient Photo Available ! June 23.2008 Date Of Service: Friday, June 13, 2008 Provider: Stuart A. Hartman, D.O. Chief Complaint • Back problem. (worsening) • Injury of the posterior neck and the lumbar back. (no change) • Aching muscles. (controlled) (no change) • Spasms of the posterior neck, the upper back, and the lumbar back. (inadequately controlled) • Pain of the shoulder on the left. (inadequately controlled) • Numbness of the foot, the ankle, and the lower leg on the left, comes and goes, occasionally feels weak and she falls. She feels crooked and radiates down to feet. (inadequately controlled) History of Present Illness • Pain. Location: the posterior neck, the upper back, the lumbar back, the sacral region of the back, the buttocks bilaterally, and the posterior shoulder on the left Quality: condition status (not adequately improved and no change), similar condition (persistent problem), symptom status (appeared at time of incident and increases with exertion), and pain (estimated intensity level 7110 today, best 4110 and worst 10110, aching, burning, sharp, stabbing, and constant). Context: Available medical records were reviewed., Recheck/progress note is available for review., and condition interferes (with activities of daily living, with normal lifestyle, with sleep, and with work activities). Modifying factors: medication (was effective and condition controlled with medication) and current treatment (Patient reports that stretching helps, pain medications, Patient is utilizing an Rs Stimulator which is helping when it works, and steroid injections). Much worse with the weather. She has gained about 15 lbs. Review of Systems Musculoskelelal. SluartA. Hartman, D.Q. 10:27 AM 4th & Willow Streets, 3rd 1=1 • P. O. Box 1110 • Lebanon, PA 17046. 717 272-1050 - Fed Id 23-2917527 Pa 1 oEXHIBIT "A" Reports arthritis, spine problems (history of back injury and history of neck injury), degree of disability (unable to return to any gainful employment, cares for personal needs, and minor limitation of ambulation), muscular weakness, myositis, posture abnormalities, and abnormal muscles. • Going to the Y for pool and light weights at least 4 days a week as tolerated. Meds are helping alot, but Roxicodone and Oxyfast gave her GI problems. Mood is worse and not stable on Lexapro. RS STIM helps at times. She is not using any device today. (inadequately controlled) • Denies fractures, kidney or UTI symptoms, and recent trauma or injury. • ROS is otherwse noncontributory. (no change) Neurological: • Reports limitation of motion of neck, unusual pain, paresthesia or numbness, and significant memory loss. (no change) Denies incoordination, involuntary movements, motor skill loss, muscular atrophy, convulsions or seizures, incontinence of urination or defecation, and dizziness. (no change) Examination Muscul oskeletal: • Normal. Examination of the musculoskeletal system, unless otherwise noted, reveals normal findings. Stability was assessed. Muscle strength was assessed. Muscle tone was assessed. Gait and station was evaluated. No scoliosis. No kyphosis. Improved mobility today. • Palpations. Palpated the posterior neck, the upper back, the posterior shoulder, the trapezius area, the lumbar back, the sacral region of the back, and the buttocks bilaterally: pain and tenderness. Today she was tender left piriformis, right hip flexors. • Range of Motion. Active cervical spine ROM: abnormal, reduced ROM, with pain, with restrictions, and without radiating pain. Active thoracolumbar spine ROM. Flexion (normal 90 degrees): abnormal, with pain, and measured at 75 degrees. Extension (normal 30 degrees): abnormal, measured at 0 degrees, with pain, and with restrictions. Left shoulder decreased ROM all planes. (controlled) (no change) Neurological: Normal. Testing, palpation, and inspection of the neurological system, unless otherwise noted, revealed the following. Oriented to time, place and person. Evaluation revealed normal speech and comprehension. Estimate of mood and affect show no evidence of depression, excessive anxiety, or agitation. Deep tendon reflexes are brisk and symmetrical. Sensation is normal in all areas tested. Coordination and fine motor skills are in normal range. (no change) Diagnosis 721.1 Cervical spondylosis with myelopathy 724.6 Disorders of sacrum 729.1 Myalgia and myositis, unspecified 722.2 Displacement of intervertebral disc, site unspecified, without myelopathy 724.2 Lumbago 724.4 Thoracic or lumbosacral neuritis or radiculitis, unspecified 719.46 Pain in joint involving lower leg 722.4 Degeneration of cervical intervertebral disc 726.5 Enthesopathy of hip region 10:27 AM 4th & Willow Streets, 3rd FI • R O. Box 1110 A. 272-1050- 2 of Management Procedures: Treatment Assessment: • No assessment will be made until the patient undergoes further treatment. • PT and YMCA for pool and exercise program. Continue medications and injections as needed. • Actiq 1200 mcg, DC 800's for pain and function. Injections. Trial of Celexa for mood. • See diagnosis for assessment • The patient is at MMI but continues palliative treatment. • Stable on medications without adverse effects, no SE from Actiq. • Stable on opioids, denies obtaining any opioids from any other provider or source, misusing or selling medications. • The patient's overall condition: remains status post MVA, remains the same, and stable. She has not fully recovered and treatment is medically necesary and reasonable. She should continue with her hot tub for theraputic stretching exercises to help with pain management; • No assessment will be made until the patient undergoes further evaluations. MR) lumbar spine reviewed, stable. Treatment Plans: • The nature of the diagnosis was discussed with the patient and/or the parent, spouse or guardian. The patient andfor parent, spouse or guardian expressed understanding and all questions were answered to their satisfaction. They are aware that they can call me if they have further questions. • The patient will continue with her RS Stimulator when she gets it repaired. • Return in 4 weeks. • Injection of trigger points. Consent: procedure explained and patient acknowledged understanding.. Skin preparation: Office staff present. and cleaned with alcohol. Medication used: 1) the left piriformis medially with 5 cc 2% Lidocaine and 2 mg Celestone, 2) the right hip flexors with 4ccs of 2% Lidocaine and 3mg Celestone and 3) buttock with 30 mg Toradol IM. Relief of pain and tenderness accomplished. There was no excessive bleeding or weakness. Medication Allergy: • None Discontinued Medications: • None Current Medications: • Actiq 1200 MCG 1 every 6 hours (Buccal) as needed for severe pain • Fill 6/27/08 (Quantity: 90 Refills: 0) (Prior- 06/1812008] • Actiq 1600 MCG 1 q8h (every 8 hours) (Buccal) as needed for SEVERE pain BN (Quantity: 30 Refills: 0) [Prior - 06/13/2008] • Actiq 800 MCG (Buccal) 1 every 6 hours as needed for pain BN • (Quantity: 30 Refills: 0) [Prior-06118/2008] • Ambien CR 12.5 MG 1 Tab CR hs (bedtime) (Oral) as needed (Quantity: 30 Refills: 0) [Prior - 06/09/2008] • Celexa 40 MG 1 Tab hs (Oral) 3 month supply (Quantity: 90 Refills: 0) [Prior - 0412812008] Stuart A. Hartman, D.O. 10:27 AM 4th & willow Streets. 3rd Fl • P. O. Box 1110 • Lebanon, PA 17046 • 717 272-1050 • Fed Id 23-2917527 Pa e 3 of 4 • Duragesic-100 100 MCGIHR 2 q 2 days (Transdermal) BN • (Quantity: 30 Refills: 0) [Prior - 06/0912008] • Duragesic-50 50 MCGIHR 4 (every 2 days) (Transdermal) BN (Quantity: 30 Refills: 0) [Prior - 0611712008] • Toradol Oral 10 MG 1 Tab every 6 hours (Oral) as needed for pain, FOLLOWING TORADOL INJECTION (Quantity: 10 Refills: 0) (Prior - 06113/20081 Board Certified in Physical Medicine and Rehabilitation cc: , , , Stuart A. Hartman, D.O. 10:27 AM 4th & Willow Streets, 3rd FI - P. O. Box 1110 - Lebanon, PA 17046 • (717) 272-1050 • Fed Id 23-2917527 Pa e 4 of 4 Center for X Lang Licemed Psychologists Nearorehabllitation Sneeialists Board Certified in Clin f ical Neuropsychology* i i Re: Kelly Bingaman i Dear Dr! Hartman: As you may remember, I continue Organic !Mood Disorder, which w? she has experienced throughout he and a major motor vehicle aceiden Kelly reports that she has been on of this cried over other opiates, by maintain her weight on Actiq. On anorexia is related to extreme stre., when she is on oral opiates. The last time she was on oral opia written you at that time. Kelly ref currently weighs 102 lbs and is 5" could be further weight loss. I Please feel free to contact me if Sincerely, Robert M. Stein, Ph.D. Clinical Ncuropsychologist Licensed Psychologist ehavioral Health, Ltd. ;ency Executive Of xes Embassy Drive Suite 366 aster, Pennsylvania 17603 (717) 392-6061 Robert A Stein, Cynthia Socha-( April 24, 2008 ) work with Kelly Bingaman, who suffers frmost likely caused by a number of blows to life, with multiple episodes of loss of consci that resulted in head injury and multiple frac ?ctiq for the past three years. The advantage :r report and by observation, is that she is ab >ral opiates she becomes anorexic. Some of but a significant component appears to be I s, she dropped nine pounds in one week, and its that she will be taken off Actiq again. Shy .. I do fear that if she is placed on oral opiate are any questions. Thank you. PhA, ABPP-CN* an :head r Kelly to had there braincenter@msn.com LHIBIT X (717) 431-2014 ? I www.neuroheattli.org "B" COPY ERIE INSURANCE EXCHANGE, Movant V. KELLY H. BINGAMAN, Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-3923 CIVIL TERM MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION For over 20 years, Kelly Bingaman received various medications prescribed by numerous physicians on her behalf. In 2005, Erie Insurance Exchange decided that it would attempt to deny her the lifetime benefits to which she was entitled under No-Fault Motor Vehicle Insurance policy at the time of her accident back in 1983. In so doing, Erie acknowledges the fact that it has to show good cause in order to obtain an independent medical examination. The fact that the Respondent has refused to submit to a physical examination is insufficient to establish good cause. Government Employees Insurance v. Schroeder, 7 D&C 3d 786 (Phila. 1978). The only stated support for Erie's motion is a report from Dr. Goodman indicating that he looked at all the medical records and could not render an opinion without examining Mrs. Bingaman, and a report from Dr. Wolk wherein he admits that the Respondent's physician, Dr. Hartman, has been maintaining the Respondent on the medications "as needed for severe pain." He further admits Dr. Hartman's opinion that the treatment rendered is reasonable, appropriate and necessary for chronic pain behavior (page 2 of Dr. Wolk's report). Notwithstanding these admissions, Dr. Wolk goes on to opine that in effect Dr. Hartman, Respondent's treating physician, is wrong in his treatment of his patient. Respondent respectfully contends that this type of opinion is not "good cause" for a medical examination by physicians who have not treated the patient and who are probably lacking the most recent medical records, i.e. a report from Dr. Hartman resulting from an April 28, 2008 consultation wherein he fully explains the reasons for the need for the medication. In a report of April 24, 2008, by Dr. Stein, a psychologist who has attempted to help Mrs. Bingaman cope with her pain, and which indicates that a "major motor vehicle accident" enables her to maintain her weight on the drug Actiq prescribed by Dr. Hartman. Copies of these reports are attached to this Memorandum of Law as Exhibits "A" and "B." It is obvious that Erie is trying to terminate the medications provided by Mrs. Bingaman's treating physicians which have enabled her to cope with her serious disability which has been brought about by her 1983 automobile accident. In light of the supporting medical records from Mrs. Bingaman's treating physicians, as contrasted with Dr. Wolk's limited record review, good cause has simply not been shown by Erie. The purpose of the No-Fault Motor Vehicle Insurance Act was to provide lifetime medications to those persons who needed them. The purpose would not be fulfilled by denying Mrs. Bingaman the only medical benefits which enable her to obtain relief. Respectfully submitted, TUCKER ARENSBERG, P.C. By: C. L - W W e C. Swartz" Pa. Bar I.D. No. 07258 111 N. Front St., P.O. Box 889 Harrisburg, PA 17108-0889 Telephone: (717) 234-4121 Facsimile: (717) 232-6802 ATTORNEYS FOR RESPONDENT 101920.1 CERTIFICATE OF SERVICE AND NOW, this day of July, 2008, I, LEE C. SWARTZ, hereby certify that have this day served the within Memorandum of Law by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Peter R. Kulp, Esquire McCormick & Priore, P.C. 4 Penn Center, Ste. 800 1600 JFK Boulevard Philadelphia, PA 19103 Le C. 9;w-arti 101920.1 .n°ptayer= - uune ti, ;duuu Date Of Service: Friday, June 13, 2008 Provider: Stuart A. Hartman, D.O. Chief Complaint • Back problem. (worsening) • injury of the posterior neck and the lumbar back. (no change) • Aching muscles. (controlled) (no change) • Spasms of the posterior neck, the upper back, and the lumbar back. (inadequately controlled) • Pain of the shoulder on the left. (inadequately controlled) • Numbness of the foot, the ankle, and the lower leg on the left, comes and goes, occasionally feels weak and she falls. She feels crooked and radiates down to feet. (inadequately controlled) History of Present Illness • Pain. Location: the posterior neck, the upper back, the lumbar back, the sacral region of the back, the buttocks bilaterally, and the posterior shoulder on the left Quality: condition status (not adequately improved and no change), similar condition (persistent problem), symptom status (appeared at time of incident and increases with exertion), and pain (estimated intensity level 7/10 today, best 4110 and worst 10110, aching, burning, sharp, stabbing, and constant). Context Available medical records were reviewed., Recheck/progress note is available for review., and condition interferes (with activities of daily living, with normal lifestyle, with sleep, and with work activities). Modifying factors: medication (was effective and condition controlled with medication) and current treatment (Patient reports that stretching helps, pain medications, Patient is utilizing an Rs Stimulator which is helping when it works, and steroid injections). Much worse with the weather. She has gained about 15 lbs. Review of Systems Musculoske/etal. Stuart A. Hartman, D.O. 110:27 AM 4th & Willow Streets, 3rd FI • P. O. Box 1110 • Lebanon PA 17046 • (717) 272-1050 - Fed Id 23-2917527 Pace 1 of 4 EXHIBIT "A" .A. Hartman Rehab Associates Progress-Note Kelly Bingaman (010334 - Workers Compensation) Reports arthritis, spine problems (history of back injury and history of neck injury), degree of disability (unable to return to any gainful employment, cares for personal needs, and minor limitation of ambulation), muscular weakness, myositis, posture abnormalities, and abnormal muscles. Going to the Y for pool and light weights at least 4 days a week as tolerated. Meds are helping alot, but Roxicodone and Oxyfast gave her GI problems. Mood is worse and not stable on Lexapro. RS STIM helps at times. She is not using any device today. (inadequately controlled) • Denies fractures, kidney or UTI symptoms, and recent trauma or injury. • ROS is otherwise noncontributory. (no change) Neurological-, • Reports limitation of motion of neck, unusual pain, paresthesia or numbness, and significant memory loss. (no change) • Denies incoordination, involuntary movements, motor skill loss, muscular atrophy, convulsions or seizures, incontinence of urination or defecation, and dizziness. (no change) Examination Musculaskeletal: • Normal. Examination of the musculoskeletal system, unless otherwise noted, reveals normal findings. Stability was assessed. Muscle strength was assessed. Muscle tone was assessed. Gait and station was evaluated. No scoliosis. No kyphosis. Improved mobility today. • Palpation. Palpated the posterior neck, the upper back, the posterior shoulder, the trapezius area, the lumbar back, the sacral region of the back, and the buttocks bilaterally: pain and tenderness. Today she was tender left piriformis, right hip flexors. • Range of Motion. Active cervical spine ROM: abnormal, reduced ROM, with pain, with restrictions, and without radiating pain. Active thoracolumbar spine ROM. Flexion (normal 90 degrees): abnormal, with pain, and measured at 75 degrees. Extension (normal 30 degrees): abnormal, measured at 0 degrees, with pain, and with restrictions. Left shoulder decreased ROM all planes. (controlled) (no change) Neurological: • Normal. Testing, palpation, and inspection of the neurological system, unless otherwise noted, revealed the following. Oriented to time, place and person. Evaluation revealed normal speech and comprehension. Estimate of mood and affect show no evidence of depression, excessive anxiety, or agitation. Deep tendon reflexes are brisk and symmetrical. Sensation is normal in all areas tested. Coordination and fine motor skills are in normal range. (no change) Diagnosis 721.1 Cervical spondylosis with myelopathy 724.6 Disorders of sacrum 729.1 Myalgia and myositis, unspecified 722.2 Displacement of intervertebral disc, site unspecified, without myelopathy 724.2 Lumbago 724.4 Thoracic or lumbosacral neuritis or radiculitis, unspecified 719.46 Pain in joint involving lower leg 722.4 Degeneration of cervical intervertebral disc 726.5 Enthesopathy of hip region Stuart A. Hartman, D.O. 10:27 AM 4th $ Willow Streets, 3rd FI • P. O. Box 1110 • Lebanon PA 17046 • (717) 272-1050 - Fed Id 23-2917527 Page 2 of 4 Management Procedures: Treatment Assessment: No assessment will be made until the patient undergoes further treatment. PT and YMCA for pool and exercise program. Continue medications and injections as needed. • Actiq 1200 mcg, DC 800's for pain and function. Injections. Trial of Celexa for mood. • See diagnosis for assessment • The patient is at MMI but continues palliative treatment. • Stable on medications without adverse effects, no SE from Actiq. • Stable on opioids, denies obtaining any opioids from any other provider or source, misusing or selling medications. • The patient's overall condition: remains status post MVA, remains the same, and stable. She has not fully recovered and treatment is medically necesary and reasonable. She should continue with her hot tub for theraputic stretching exercises to help with pain management; • No assessment will be made until the patient undergoes further evaluations. MR) lumbar spine reviewed, stable. Treatment Plans: • The nature of the diagnosis was discussed with the patient and/or the parent, spouse or guardian, The patient and/or parent, spouse or guardian expressed understanding and all questions were answered to their satisfaction. They are aware that they can call me if they have further questions. • The patient will continue with her RS Stimulator when she gets it repaired. • Return in 4 weeks. • Injection of trigger points. Consent: procedure explained and patient acknowledged understanding.. Skin preparation: Office staff present, and cleaned with alcohol. Medication used: 1) the left piriformis medially with 5 cc 2% Lidocaine and 2 mg Celestone, 2) the right hip flexors with 4ccs of 2% Lidocaine and 3mg Celestone and 3) buttock with 30 mg Toradol IM. Relief of pain and tenderness accomplished. There was no excessive bleeding or weakness. Medication Allergy: • None Discontinued Medications: • None Current Medications: • Actiq 1200 MCG 1 every 6 hours (Buccal) as needed for severe pain • Fill 6/27/08 (Quantity: 90 Refills: 0) [Prior - 06/18120081 • Actiq 1600 MCG 1 q8h (every 8 hours) (Buccal) as needed for SEVERE pain BN (Quantity: 30 Refills: 0) [Prior - 06/13/2008] • Actiq 800 MCG (Buccal) 1 every 6 hours as needed for pain BN (Quantity: 30 Refills: 0) [Prior - 06118/20081 • Ambien CR 12.5 MG 1 Tab CR hs (bedtime) (Oral) as needed (Quantity: 30 Refills: 0) [Prior - 06/09/2008] • Celexa 40 MG 1 Tab hs (Oral) 3 month supply (Quantity: 90 Refills: 0) [Prior - 04/2812008] Stuart A. Hartman, D.O. 10:27 AM 4th & Wiilow Streets. 3rd F! • P.O. Box 1110 -Lebanon, PA 17048 -C717)272-1050 • Fed Id 23-2917527 Page 3 of 4 • Duragesic-100 100 MCGIHR 2 g 2 days (Transdermal) BN (Quantity: 30 Refills: 0) [Prior - 06/09/20081 • Duragesic-50 50 MCGIHR 4 (every 2 days) (Transdermal) BN (Quantity: 30 Refills: 0) [Prior - 06117120081 • Toradol Oral 10 MG 1 Tab every 6 hours (Oral) as needed for pain, FOLLOWING TORADOL INJECTION (Quantity: 10 Refills: 0) [Prior - 06113120081 Board Certified in Physical Medicine and Rehabilitation cc: , , Stuart A. Hartman, 0.0. [t Q.27 AM 4th & Willow Streets, 3rd FI - P. 0. Box 1110 - Lebanon, PA 17046 - (717) 272-1050 - Fed Id 23-2917527 Page 4 of 4 Center for Ndurobehavioral Health, Ltd. i Licensed Psychologists Neurorehabilitation Specialists Board Certified in Clinical Neuropsychology* I i i Re: Key Bingaman i Dear Dri Hartman: As you may remember, I continue Organic Mood Disorder, which w-, she has experienced throughout he and a m jor motor vehicle acciden Kelly reports that she has been on of this med over other opiates, by, maintain her weight on Actiq. On anorexia is related to extreme stre., when she is on oral opiates. The last time she was on oral opia: written you at that time. Kelly rep currently weighs 102 lbs and is 5'! could be further weight loss. ;ency Executive Offues Embassy Drive Suite 366 aster, Pennsylvania 17603 (717) 392-606.7 Robert M. Stein, Cynthia Socha.( April 24, 2008 D work with Kelly Bingaman, who suffers fr, most likely caused by a number of blows to life, with multiple episodes of loss of consci that resulted in head injury and multiple frac :ctiq for the past three years. The advantage ,r report and by observation, is that she is ab ral opiates she becomes anorexic. Some of but- a significant component appears to be I s, she dropped nine pounds in one week, and its that she will be taken off Actiq again. Shi '. I do fear that if she is placed on oral opiate Please feel free to contact me if the Sincerely, Robert M. Stein, Ph.D. Clinical Ncuropsychologist Licensed Psychologist braincenterC msn.com I* are any questions. Thank you. (717) 431-2014 410. XHIBIT "B" Ph.D., ABPP-CN" an head a Kelly to had there www.neurohealtit.org ERIE INSURANCE EXCHANGE, Movant V. KELLY H. BINGAMAN, Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-3923 CIVIL TERM ANSWER OF KELLY H. BINGAMAN TO RULE TO SHOW CAUSE IS§UED BY THE COURT ON AUGUST 6, 2008 Inasmuch as the above-captioned action was issued in the form of a Motion to Compel Independent Medical Examination, Respondent's Answer to said Motion was filed on July 30, 2008. 2. Respondent hereby incorporates by reference the Answer already filed and requests that it be treated as an Answer to the Rule issued on August 6, 2008. Respectfully submitted, TUCKER ARENSBERG, P.C. By: W u Lee C. Swartz Pa. Bar I.D. No. 07258 111 N. Front St., P.O. Box 889 Harrisburg, PA 17108-0889 Telephone: (717) 234-4121 Facsimile: (717) 232-6802 ATTORNEYS FOR RESPONDENT r - K CERTIFICATE OF SERVICE AND NOW, this 'Xa+? day of August, 2008, I, LEE C. SWARTZ, hereby certify that I have this day served the within Answer by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Peter R. Kulp, Esquire McCormick & Priore, P.C. 4 Penn Center, Ste. 800 1600 JFK Boulevard Philadelphia, PA 19103 Le C. Swa 17 ERIE INSURANCE EXCHANGE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KELLY H. BINGAMAN : NO. 2008 - 3923 CIVIL TERM ORDER OF COURT AND NOW, this 2N° day of SEPTEMBER, 2008, an evidentiary hearing on Plaintiff s Motion to Compel Independent Medical Exam will be held on THURSDAY, OCTOBER 23, 2008, at 1:00 n.m. in Courtroom # 3 of the Cumberland County Courthouse, Carlisle, Pa. eter R. Kulp, Esquire ,Xee C. Swartz, Esquire :sld 4 Edward E. Guido, J. 4 Co :G 1- 3JS 0061 f14J1 1 i -Hi ?Cr ERIE INSURANCE EXCHANGE, Petitioner V. KELLY H. BINGAMAN, Respondent IN THE COURT OF COMMON PLEAS OF. CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-3923 CIVIL TERM IN RE: MOTION TO COMPEL INDEPENDENT MEDICAL EXAM ORDER OF COURT AND NOW, this 23rd day of October, 2008, the parties are given until November 3, 2008, to submit a brief memorandum of law in support of their respective positions. memorandum should not exceed five pages. Peter R. Kulp, Esquire McCormick & Priore, P.C. 4 Penn Center, Suite 800 1600 JFK Boulevard Philadelphia, PA 19103 For the Petitioner ? Lee C. Swartz, Esquire Tucker Arensberg, P.C. 111 North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 For the Respondent srs n ' r WP I FS' rn:;t lbp,loe By the Court Edward E. Guido, J. The t? fINI ` NM s? SZ :01 WV ?z 130 BUZ Auviciwiilow 3a -40 3o1A0" L-1 A ERIE INSURANCE EXCHANGE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KELLY H. BINGAMAN NO. 2008 - 3923 CIVIL TERM IN RE: PLAINTIFF'S MOTION TO COMPEL INDEPENDENT MEDICAL EXAM BEFORE GUIDO, J. ORDER OF COURT AND NOW, this 2ND day of FEBRUARY, 2009, for the reasons set forth in the accompanying opinion, Plaintiff's request to compel Defendant to submit to an independent medical exam is GRANTED. -' Lee C. Schwartz, Esquire ? David M. McCormick, Esquire Peter R. Kulp, Esquire : sld 126P C" ,h?l tLC Edward E. Guido, J. MKVSNN3d LZ y8 NV ? - 93J 688Z 1ttNJ.aNci! UQ 3Dw F1l 0 J. ERIE INSURANCE EXCHANGE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. KELLY H. BINGAMAN, NO. 2008 - 3923 CIVIL TERM Defendant IN RE: PLAINTIFF'S MOTION TO COMPEL INDEPENDENT MEDICAL EXAM BEFORE GUIDO, J. OPINION AND ORDER OF COURT On September 1, 1983 Defendant sustained serious injuries in a single vehicle accident. She has undergone medical treatment continuously since that time. Defendant's vehicle was insured under a policy issued by the Plaintiff. The terms of the policy were governed by the Pennsylvania No-Fault Motor Vehicle Act.' Pursuant to the terms of the policy the Plaintiff has been paying the medical expenses related to the accident. Plaintiff has filed a Motion to Compel an Independent Medical Examination of the Defendant. Defendant filed an answer objecting to the motion. After an evidentiary hearing we asked the parties to file briefs in support of their respective positions. The sole issue presented is whether the Plaintiff has shown sufficient "good cause" to require defendant to submit to an independent medical examination pursuant to Section 401 of the No-Fault Act.2 For the reasons hereinafter set forth we find that it has. '40 P.S. § 1009.101 et seq. (Repealed). 2 40 P.S. § 1009.401 (Repealed). 2008 - 3923 CIVIL DISCUSSION Section 401 of The Pennsylvania No-fault Motor Vehicle Insurance Act provided in relevant part as follows: Whenever the mental or physical condition of a person is material to any claim that has been or may be made for past or future basic lost benefits, a court of competent jurisdiction may order the person to submit to a mental or physical examination by a physician or physicians. The order may be made only on the motion for good cause shown ....3 To determine what constitutes "good cause shown" both parties cite to Nationwide Mutual Insurance Company v. Fandray, 12 Pa. D.&C.3d 65 (Ct. Com. Pl. Allegheny County 1979). In Fandray the trial court held that: [t]o establish "good cause shown," an insurer's petition, at the minimum, must contain facts showing that the proofs supplied in support of the claim are inadequate, that the proposed physical examination will substantially assist the insurer in evaluating the claim and that the amount of the claim justifies a court order compelling the claimant to submit to a physical examination. Id. at 70. The Superior Court specifically adopted this standard in State Farm Mutual Automobile Insurance Company v. Zachary, 536 A.2d 800 (Pa. Super. 1987). However, the Superior Court of Pennsylvania, sitting en Banc in State Farm Insurance Companies v. Swantner, 594 A.2d 316 (Pa. Super. 1991), rejected 3 40 P.S. § 1009.401 (Repealed). 2 0 2008 - 3923 CIVIL the Fandray standard.4 In Swantner the court was faced with a conflict between two competing standards for determining "good cause shown." One standard was the Fandray standard cited above. The other was set forth in State Farm Insurance Companies v. Hunt, 569 A.2d 365 (Pa. Super. 1990), where the court held that: [b]efore ordering a party to submit to an examination, however, a trial court should require a showing that a bona fide controversy exists regarding the nature of the claimant's injuries. It must also be shown that the requested mental or physical examination will substantially aid the insurer in evaluating the claim. Hunt, 569 A.2d at 367. The Swantner court rejected both. Instead, the court looked to the definition of "good cause shown" found in Black's Law Dictionary, 5th Edition, which defines it as: substantial reason, one that affords a legal excuse, phrase "good cause" depends upon circumstances of individual cases, and finding of its existence lies largely in discretion of officer or court to which decision is committed. Swantner, 594 A.2d at 320. Furthermore, the Swantner court held that: the entire focus must be on the condition which is material to the claim, and the trial court had discretion to ascertain whether good cause has been shown to permit the examination to evaluate that condition. The good cause requirement will prevent harassment, untoward intrusion and unwarranted examination when the proof presented does not meet the standard universally applied when good cause is implicated. Further classification of the standards required by Zachary and Hunt does not facilitate the a The action brought in Swantner was initiated pursuant to Section 1796 of the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) 75 Pa. C.S.A. § 1796 which repealed the No-fault Motor Vehicle Insurance Act at issue in Fandray. However, the language of the two laws with respect to compelling a medical examination is nearly identical, both requiring "good cause shown." Furthermore, the court rejected the Fandray standard because "section 1796 does not provide a guideline and it must be liberally construed to affect the legislative objects and to promote justice." Swantner, 594 A.2d at 319. Since the court made no distinction between the two laws, it is logical to conclude that "good cause shown" in the new law is identical to "good cause shown" in the older repealed law. Therefore, we will apply the standard enunciated in Swantner to the instant motion. 3 2008 - 3923 CIVIL required finding but restricts analysis and review when the trial court's discretion should be broad. Id. at 322. In the instant matter Plaintiff alleges that an independent medical examination is required because there is "a question as to the reasonableness and necessity of the treatment being rendered" to Defendant.5 In support of its position Plaintiff has supplied the reports of two physicians. Each conducted an extensive evaluation of Plaintiff s medical records. Both suggested the need to examine the patient. One physician, Dr. Wolk, concluded that "with regards to the medications I find there is lack of documentation to indicate the reasonableness and necessity of the medications being prescribed for this individual.4 Additionally, Dr. Wolk noted that in 2006 Ms. Bingaman's symptoms had worsened after being assaulted by her husband, bringing into question the causal link between the car accident of 1983 and the extent of her medical treatment.7 The other physician, Dr. Goodman, concluded that: to complete a thorough review of this individual's complicated, prolonged and sustained litany of complaints s Petitioner's Motion to Compel Independent Medical Examination § 21. 6 Dr. Wolk list several factors upon which he based his opinion: First, there is no documentation within the records that this individual is truly receiving any benefit from the medications. It would appear from the five years' worth of records I reviewed that there is no improvement either symptomatically from the medications or functionally. Secondly, she is being prescribed medication, i.e., Actiq, which is not appropriate for non-malignant chronic pain. Thirdly, she is being prescribed another narcotic, Duragesic, that is not in accordance with the manufacturer's recommendations for use, that being 100 mcg two patches every two days. Additionally, there is no documentation within the five years' worth of records I reviewed of there being a narcotic agreement nor has there been any type of urine testing to verify appropriate compliance with the medication being prescribed. (Petitioner's Motion, Exhibit C.) 7 Petitioner's Motion, Exhibit C. 4 2008 - 3923 CIVIL as well as determine the necessity for treatment in a direct and causal fashion to any precipitating influences and in an attempt to state any fact with a reasonable degree of medical certainty, it would be necessary for me to perform an independent medical evaluation. This would permit me to obtain a history from this individual in a more thorough fashion and permit me the opportunity of evaluating her present physical condition.8 Both Dr. Wolk and Dr. Goodman have raised questions as to the reasonableness and necessity of the treatment being rendered to Defendant. Therefore we are satisfied that Plaintiff has shown "good cause" for requiring an independent medical examination. We are further satisfied that Plaintiff's request is not being made merely to harass or intimidate the Defendant. Plaintiff has paid for Defendant's medical care for more than twenty five years. It's experts have raised legitimate questions that they feel can only be answered with an independent medical examination. The requested examination is warranted and will not result in any "untoward intrusion" upon the Defendant. Swanter, supra 594 A.2d at 322. Therefore, we will grant the motion. ORDER OF COURT AND NOW, this 2ND day of FEBRUARY, 2009, for the reasons set forth in the accompanying opinion, Plaintiff's request to compel Defendant to submit to an independent medical exam is GRANTED. By the Court, /s/ Edward E. Guido Edward E. Guido, J. Lee C. Schwartz, Esquire David M. McCormick, Esquire Peter R. Kulp, Esquire 8 Petitioner's Motion, Exhibit C. 5