HomeMy WebLinkAbout10-1009FILED-01-_ CE
CF THE P HC i I ;, I
CTAF?y
2010 FEB -8 Pry 3: 20
Matthew S. Crosby, Esq.
I. D.#69367
HANDLER, HENNING & ROSENBERG, LLP
1300 Linglestown Road
Harrisburg, PA 17110
Telephone: (717) 238-2000 Attorneys for Plaintiff
Fax : (717) 233-3029
E-mail: Crosbv0_HHRLaw.com
TANYA C. ROTHENBERGER, : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V.
USAA CASUALTY INSURANCE
COMPANY,
Defendant
: NO. 2010- loon CIVIL
: CIVIL ACTION -LAW
: JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following
pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a
written appearance personally or by attorney and filing in writing with the Court your defenses or objections to
the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and
a judgment may be entered against you by the Court without further notice for any money claimed in the
Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO
TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH
INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH
INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A O
REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATIONO 00 P ?iTtY
2 Liberty Avenue, Carlisle, PA 17013 CK. 151$0)
Telephone 717-249-3166 or 800-990-9108 P?r* .15,7g07
AVISO
LISTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se
presentan mcis adelante en las siguientes paginas, debe tomar accibn dentro de los prbximos veinte (20) dlas
despu6s de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado
una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las
demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se
describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada
en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en
contra suya por la Corte sin mks aviso adicional. Usted puede perder dinero o propiedad u otros derechos
importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE
UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE
INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO.
SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA
OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS
LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE CUALIFICAN.
CUMBERLAND COUNTY BAR ASSOCIATION
2 Liberty Avenue, Carlisle, PA 17013
Telephone 717-249-3166 or 800-990-9108
HANDLER, HENNING & ROSENBERG, LLP
By:
Matthew S. Crosby, Esq.
FAWP DirectoriesWMC\Complaints\Peer Review\Rothenberger, Tanya.wpd
Matthew S. Crosby, Esq.
ID# 69367
HANDLER, HENNING & ROSENBERG, LLP
1300 Linglestown Road, Suite 2
Harrisburg, PA 17110
Phone: (717) 238-2000
Fax: (717) 233-3029
Email: Crosby@hhrlaw.com
Attorneys for Plaintiff
TANYA C. ROTHENBERGER,
Plaintiff
V.
USAA CASUALTY INSURANCE
COMPANY,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 2010- 166 1 CIVIL
: CIVIL ACTION -LAW
: JURY TRIAL DEMANDED
COMPLAINT
AND NOW, comes the Plaintiff, Tanya Rothenberger, by and through her attorneys,
HANDLER, HENNING & ROSENBERG, LLP, by Matthew S. Crosby, Esq., and makes the
within Complaint against Defendant, USAA Casualty Insurance Company, and in support
thereof avers as follows:
1. Plaintiff, Tanya Rothenberger, is an adult individual who currently resides at
144 Chester Street, Carlisle, Cumberland County, PA 17013.
2. Defendant, USAA Casualty Insurance Company (hereinafter referred to as
"USAA" ), is an insurance company, licensed to do business in the Commonwealth of
Pennsylvania, with its principal place of business located at 9800 Fredericksburg Road,
San Antonio, TX 78288. Defendant, USAA, regularly conducts business in Cumberland
County, Pennsylvania.
3. On or about August 30, 2008, at approximately 8:49 p.m., Plaintiff, Tanya
Rothenberger, was injured when Michael Statler, who was traveling northbound on SR 11,
made a left-hand turn into the pathway of Plaintiff's vehicle, which was traveling
southbound on SR 11, causing a violent collision.
4. At the time of the aforementioned collision, Plaintiff, Tanya Rothenberger,
was a named insured on a policy of automobile insurance issued to her by Defendant,
USAA, under Policy Number 00882 95 98C 7101 5.
5. Pursuant to the terms and conditions of the policy with Defendant, USAA,
Plaintiff, Tanya Rothenberger, paid an additional premium to obtain $10,000.00 in first-
party medical-expense benefits, in accordance with the requirements of the Pennsylvania
Motor Vehicle Financial Responsibility Law (hereinafter "MVFRL").
6. Pursuant to the terms and conditions of said policy and in accordance with
the MVFRL, Defendant, USAA, was obligated to provide medical expense benefits to
Plaintiff for all reasonable and necessary medical treatment and rehabilitative services.
7. Plaintiff, Tanya Rothenberger, brings this action to enforce the terms of the
aforementioned automobile insurance contract.
8. As a direct and proximate result of this motor vehicle collision, Plaintiff,
Tanya Rothenberger, sustained numerous personal injuries including, but not limited to,
injuries to her chest, ribs, neck, hip, right ankle, and right knee.
9. As a further result of the aforementioned collision, Plaintiff, Tanya
Rothenberger, has been compelled to receive and undergo extensive medical attention
2
and care and expend various sums of money and/or incur various expenses for which
medical benefits are payable. She will be obligated to continue to expend and/or incur the
same for an indefinite period of time in the future.
10. Following the collision, Plaintiff, Tanya Rothenberger, sought reasonable and
necessary medical treatment, including physical therapy, for injuries related to the August
30, 2008, collision. Plaintiff has undergone physical-therapy treatment with Alexander
Spring Rehab and Drayer Physical Therapy.
11. Plaintiff, Tanya Rothenberger, received treatment from Alexander Spring
Rehab from December 15, 2008, until she was discharged from care on June 11, 2009,
with a 75% improvement in her overall symptoms.
12. On or about August 27, 2009, Plaintiff experienced an aggravation and/or
change in her medical condition and was referred by her treating physician(s) for additional
physical therapy at Drayer Physical Therapy.
13. It is averred that all physical therapy bills have been, and continue to be, fair,
reasonable, and medically necessary.
14. Defendant, USAA, pursuant to 75 Pa. C.S.A. §1797(b)(1) of the Pennsylvania
MVFRL, as amended, has contracted with a peer review organization (PRO) forthe alleged
purpose of determining whether certain services were medically necessary. The name and
address of said PRO is: Disability Management Consultants, 920 W. Sproul Road, Suite
202, Springfield, PA 19064.
15. On or about June 1, 2009, Defendant, USAA, notified Alexander Spring
Rehab that it had requested a physical-therapy peer review with Disability Management
Consultants. At no time did Defendant, USAA, or Disability Management Consultants
3
inform the therapists at Alexander Spring Rehab of their right to discuss the case with the
PRO reviewer, in violation of 31 Pa. Code 69.52. A copy of the June 1, 2009, notification
letter from USAA is attached hereto, made a part hereof, and marked "Exhibit A."
16. On or about June 19, 2009, Ellen R. Cohen provided a three-page report to
Disability Management Consultants, wherein she ultimately concluded that "...the
documentation does not substantiate therapy after 4-2-09." A copy of Ms. Cohen's report
is attached hereto, made a part hereof, and marked "Exhibit B."
17. Defendant, USAA, allegedly as a result of Ms. Cohen's June 19, 2009, report,
has denied payment for physical-therapy treatment rendered by Alexander Spring Rehab
after April 2, 2009. Plaintiff's current unpaid balance with Alexander Spring Rehab is
$1,439.00.
18. On or about August 27, 2009, Plaintiff, Tanya C. Rothenberger, sought
medical care with her family physicians at Masland Associates. According to the office
note, Ms. Rothenberger "...had been doing okay but then she developed some increasing
hip difficulties.'' A copy of the August 27, 2009, office note is attached hereto, made a part
hereof, and marked "Exhibit C."
19. Shortly thereafter, Plaintiff, Tanya C. Rothenberger, was prescribed additional
physical therapy and sought such therapy with Drayer Physical Therapy.
20. Defendant, USAA, allegedly as a result of the PRO's June 19, 2009, report,
and despite Plaintiff's changed medical condition, has denied payment for all physical-
therapy treatments Plaintiff has received at Drayer Physical Therapy. Plaintiff's current
unpaid balance with Drayer is $9,225.72.
4
21. At no time in the June 19, 2009, peer review report letter (Exhibit "B") does
the reviewing provider, Ellen R. Cohen, conclude that any of Plaintiff's medical care was
medically unnecessary.
22. The peer reviewer, Ms. Ellen R. Cohen, failed to review and/or consider all
of Plaintiffs medical records related to the car crash of August 30, 2008. Therefore, the
peer review conducted on or about June 19, 2009, was based upon an incomplete medical
file.
23. The self-stated purpose of the peer review in question was "...to determine
if the physical therapy provided to Tanya Rothenberger at Alexander Spring Rehab" was
reasonable.
24. At no point since June 2009, has the Defendant, USAA; the peer review
organization, Disability Management Consultants; or the peer reviewer herself, Ellen R.
Cohen, ventured to review the care and/or treatment Plaintiff has received from Drayer
Physical Therapy following the change in her medical condition on or about August 27,
2009. (See Exhibit "C.")
25. The peer reviewer, Ellen R. Cohen, indicated in her report that physical
therapy was reasonable and necessary until April 2, 2009, because slow, but steady,
progress was documented in the medical records. However, Ms. Cohen opined that, after
that date, minimal additional progress was noted and, therefore, "...the need for supervised
physical therapy beyond 4-2-09 was not established."
26. The peer reviewer, Ms. Cohen, went on to opine that Plaintiff "could have"
continued her rehabilitation on her own with a well-structured home-exercise program.
5
27. After a review of Plaintiffs incomplete medical file, Ms. Cohen opined that
the incomplete documentation she was provided did "...not substantiate therapy after 4-2-
09." Ms. Cohen provided no further analysis, other than referring to her "careful analysis
of the range of motion measurements."
28. At no time, did the peer reviewer; the peer review organization; or the
Defendant, USAA, ask to speak with Plaintiff, Tanya C. Rothenberger, or any of her
medical providers.
29. Pursuant to 75 Pa. C.S.A. § 1797(b)(1), PRO evaluations must be "...for the
purpose of evaluating treatment, health care services, products or accommodations
provided to any injured person. Such evaluation shall be for the purpose of confirming that
such treatment, products, services or accommodations conform to the professional
standards of performance and are medically necessary."
30. "A PRO has the authority to evaluate the reasonableness and medical
necessity of care, and the professional standards of performance, including the
appropriateness of the setting where the care is rendered, and the appropriateness of the
delivery of the care rendered." 31 Pa. Code § 69.51.
31. Furthermore, pursuant to 31 Pa. Code §69.52(e), "[a] PRO shall provide a
written analysis, including specific reasons for its decision, to insurers, which shall within
five days of receipt, provide copies to providers and insureds."
32. Plaintiff, Tanya Rothenberger believes and, therefore, avers, that the peer
review report issued by Ms. Cohen, did not comply with 31 Pa. Code §69.52(e) because
no specific reasons were listed indicating why Ms. Cohen's ultimate conclusions were
accurate.
6
33. Ms. Cohen's report does not provide any sufficient written analysis specifying
the reasons or the support for her ultimate conclusion except to generally reference
disability guides and standards, which do not take into account the individual patient or the
symptoms that patient experiences.
34. "Analysis," as described in 31 Pa. Code §69.52(e), necessarily implies that
more than a list of the documents reviewed and the ultimate conclusions reached by the
peer reviewer be contained in the peer review report.
35. Plaintiff's treating physical therapist, Stephany Primrose, authored an August
13, 2009, report, wherein she opines that Plaintiff's continuing therapy beyond April 2,
2009, was medically reasonable and necessary. In fact, as a direct result of continued
supervised physical therapy, Plaintiff recovered further function and reduced her pain level.
Attached hereto, made a part hereof and marked as "Exhibit D," is a copy of Therapist
Stephany Primrose's medical report.
36. As of April 2, 2009, Plaintiff had ongoing back, hip, neck and rib-cage pain
as a result of her injuries; she had positive neural tissue tension with straight-leg raise of
-35 degrees on the right and -10 degrees on the left, evidencing persistent nerve irritation
and pain; she had limited trunk strength and minimal ability to stabilize her core; she had
only 15% of her normal rib-cage excursion with inhalation; and her lumbar range of motion
was 25% limited and was painful.
37. Discharge to a home-exercise program on April 2, 2009, was also not
feasible, as Plaintiff had barely begun to tolerate strengthening exercises by that date.
Further, Plaintiffs muscle tears required ongoing and recurrent manual stretching
7
techniques and home exercises would not have been sufficient to achieve the flexibility
Plaintiff needed.
38. After April 2, 2009, Plaintiff gradually progressed her exercise level and
worked on her pain level with skilled techniques, and, while some of these were able to be
completed at home, most required the skill of a trained therapist in order to reach the
maximum benefit.
39. During her last month of therapy at Alexander Spring Rehab, Plaintiff steadily
decreased her pain level and improved her activities of daily living and work tolerance; she
reported a 75% improvement in her symptoms; her thoracic and rib-cage pain had
resolved; she had normal rib-cage excursion with inhalation; her ranges of motion were
within normal levels and her trunk strength had improved.
40. Finally, Therapist Primrose noted that "[o]bjective findings show that Ms.
Rothenberger significantly improved afterApril 2, 2009, and this improvement was unlikely
to occur without the skilled physical-therapy intervention that was provided." (See Exhibit
"D," page 2).
41. On or about August 25, 2009, Plaintiff forwarded a copy of her Physical
Therapist's report to Defendant, USAA, and requested Defendant pay her outstanding
balance with Alexander Spring Rehab. Defendant, USAA, refused. A copy of Plaintiff's
August 25, 2009, letter to Defendant, USAA, is attached hereto, made a part hereof and
marked "Exhibit E."
42. From the commencement of treatment of Plaintiff, Tanya Rothenberger, and
at various times thereafter, the medical care providers and Plaintiff's counsel have
8
requested that Defendant, USAA, pay the aforementioned medical bills as they have been
accumulating.
43. Plaintiff, Tanya Rothenberger's, credit history has been, and will in the future
be, adversely affected, as long as Defendant, USAA, continues to deny responsibility for
payment of reasonable, necessary, and related medical bills.
44. Plaintiff, Tanya Rothenberger's, third-party personal injury claim has been,
and will in the future be, adversely affected, as long as Defendant, USAA, continues to
deny responsibility for payment of reasonable and necessary medical bills.
45. Defendant refuses to pay the balance due to the aforementioned providers
under the terms and conditions of the applicable policy of insurance and the Pennsylvania
MVFRL. Plaintiff, Tanya Rothenberger, has been required to hire the services of an
attorney to collect payment of the medical bills herein due. Defendant, USAA's course of
conduct in this case has been unreasonable and without foundation.
46. Pursuant to 75 Pa. C.S.A. § 1797(b)(6) if "a court determines that medical
treatment or rehabilitative services or merchandise were medically necessary, the insurer
must pay to the provider the outstanding amount plus interest at 12%, as well as the costs
of the challenge and all attorney fees."
47. Pursuant to 75 Pa. C.S.A. § 1716, "[o]verdue benefits shall bear interest at
the rate of 12% per annum from the date the benefits become due."
48. Furthermore, pursuant to 75 Pa. C.S.A. 1798(b), "[i]n the event an insurer is
found to have acted with no reasonable foundation in refusing to pay the benefits
enumerated in subsection (a) when due, the insurer shall pay, in addition to the benefits
9
owed and the interest thereon, a reasonable attorney fee based upon actual time
expended."
49. Plaintiff, Tanya Rothenberger, believes and, therefore, avers that the above-
described actions of Defendant are unreasonable and without reasonable foundation, and,
therefore, pursuant to 75 Pa. C.S.A. §§ 1716, 1797, and 1798, respectively, Plaintiff is
entitled to attorneys' fees, as well as 12% interest on the unpaid bills.
50. Despite the peer review report's aforementioned statutory deficiencies,
Defendant, USAA, continued to deny payment for reasonable and necessary treatment
based upon the peer review report issued by Ms. Cohen.
BREACH OF CONTRACT
Tanya Rothenberger v. USAA Casualty Insurance Company
51. Plaintiff, Tanya Rothenberger, incorporates and makes part of this Count
paragraphs 1 through 50 above, as if the same were set forth fully below.
52. Plaintiff, Tanya Rothenberger, purchased first-party medical coverage from
Defendant, USAA, justifiably expecting she would have coverage for necessary medical
expenses that would allow her to recover from injuries she sustained arising out of the
maintenance or use of an automobile.
53. By withholding payments with no authority to do so, unnecessarily and
improperly referring bills to a PRO, not adhering to the several temporal, procedural, and
substantive requirements, as set forth in law, and acquiescing in the PRO's failure to do
so, Defendant, USAA, has undertaken a course of action that has been designed to
unilaterally, and without justification, refuse claims for medical benefits, causing Plaintiff,
10
Tanya Rothenberger, to become personally responsible for the remainder of her medical
treatment arising out of the maintenance or use of a motor vehicle, in contradiction to the
terms of their contract, the MVFRL, the medical cost-containment regulations, and the
established case law of this Commonwealth.
54. Pursuant to §1712(1) of the MVFRL, the Defendant is obligated to pay for all
reasonable and necessary medical treatments and rehabilitation services received by the
Plaintiff on account of her injuries.
55. Pursuant to §1716 of the MVFRL, if any such healthcare costs are not paid
within thirty (30) days after the Defendant receives reasonable proof of the amount of such
costs, the Defendant is obligated to pay 12% interest per annum on such unpaid
healthcare expenses.
56. The Defendant has not paid for the Plaintiff's reasonable and necessary
medical treatment and rehabilitative services within thirty (30) days of the date that
Defendant received reasonable proof of the amount of such expenses.
57. The Defendant has acted in an unreasonable manner in refusing to pay said
healthcare costs, thereby entitling the Plaintiff to an award of reasonable counsel fees and
expenses against the Defendant.
58. The aforementioned conduct on the part of the Defendant is in violation of
the foregoing provisions of the MVFRL and is in breach of the terms and conditions of the
aforementioned automobile insurance policy.
11
59. Plaintiff, Tanya Rothenberger, believes and, therefore, avers that the above-
described actions of Defendant, USAA, are unreasonable and without reasonable
foundation.
60. Pursuant to 75 Pa.C.S.A. §§ 1716 and 1798, in the event that the insurer has
acted in an unreasonable manner in refusing to pay the benefits when due, the insurer
shall pay the benefits owed and interest of twelve percent (12%), costs, and all attorneys'
fees.
WHEREFORE, Plaintiff, Tanya Rothenberger, demands judgment in her favor,
directing the Defendant, USAA, to pay all outstanding medical bills, pay interest of twelve
percent (12%) on outstanding bills, and pay damages in an amount in excess of the
compulsory arbitration limit of Cumberland County, costs, all attorneys' fees and whatever
additional relief that this Honorable Court deems just.
Respectfully Submitted,
Date: 2016
HAN7777 P
By:
Matthew S. Crosby, Esq.
I . D. #69367
Attorneys for Plaintiff
12
VERIFICATION
THE UNDERSIGNED hereby verifies that the statements in the foregoing document
are based on information that was gathered by counsel in preparation of this lawsuit. The
language of the above-named document is of counsel and not of my own. I have read the
said document and, to the extent that it is based on information that I gave to counsel, it is
true and correct to the best of my knowledge, information and belief. To the extent that the
contents of the said document is that of counsel, I have relied upon my counsel in preparing
this Verification.
THE UNDERSIGNED also understands that the statements therein are made subject
to the penalties of 18 Pa.R.C.P. 2252(d), relating to unsworn falsification to authorities.
DATE: o 1 3() to '? 4'"P-C'
ANYA .ROTHENBER R
FILED-~~r'i=~t~F
c~F THE p°~TF'~~;JTARY
1010 f~r~R -4 p~ 2~ 59
Matthew S. Crosby, Esq.
ID# 69367
HANDLER, HENNING 8< ROSENBERG, LLP
1300 Linglestown Road, Suite 2
Harrisburg, PA 17110
Phone: (717) 238-2000
Fax: (717) 233-3029
Email: Crosby@hhrlaw.com
Attorneys for Plaintiff
TANYA C. ROTHENBERGER,
Plaintiff
v.
USAA CASUALTY INSURANCE
COMPANY,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2010-1009 CIVIL
CIVIL ACTION -LAW
JURY TRIAL DEMANDED
AFFIDAVIT OF SERVICE
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF DAUPHIN
I, MATTHEW S. CROSBY, hereby certify that I served the Civil Complaint in the
above-captioned matter on Defendant, USAA General Indemnity Insurance Co., by
Certified first-class United States mail, Restricted Delivery, return receipt requested,
and said document was received by said Defendant, USAA General Indemnity
Insurance Co., on February 22, 2010, as evidenced by the signed return receipt card,
attached hereto and made a part hereof, along with the copy of the transmittal letter.
Sworn to before me
and subscribed this ~ day
of ~.~ (Z C fit- 2010.
' NOTARIAL SEAL
VERA F FREED
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8U8GyEHANNA TWP., DAUPHIN CNTY
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^ Oomplete Items 1, 2, and 3. Also complete
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VIA CERTIFIED MAIL, RESTRICTED DEL/VERY
USAA General Indemnity Insurance Co.
ATTENTION: Legal Department
9800 Fredericksburg Rd.
San Antonio, TX 78288
Re: Our Client
Your Insured:
Claim Number:
Date of Loss:
Dear Sir or Madam:
Matthew S. Crosby
Crosby@hhrlaw.com
Tanya C Rothenberger
Tanya Rothenberger
8829598
8/30/2008
Enclosed in the above-captioned matter, is the following:
1. A Civil Complaint;
2. Plaintiff's First Set of Interrogatories .Directed to
Defendant, USAA Casualty Insurance Co.; and
3. Plaintiff's Request for Production of Documents Directed
to Defendant, USAA Casualty Insurance Co.
We are serving these documents herewith on USAA. Thank you for your attention to his
matter.
U.S . Post al Ser vice r r~
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(Do mestic M ail Only ; No Ins r~:,
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February 15, 2010
Very truly yours,
HANDLE , H ~NING & ROSENBERG, LLP
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By:
Matfihew S. Crosby
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(gyp ienning & Rosenberg, LLP
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www. hhrlaw.com
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