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Home My WebLink About05-3535 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, Plaintiff Vs. STATE FARM INSURANCE COMPANIES Defendant "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 buy 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 of 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 CANPRO~DEYOU~THINFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PRO~DE YOU~THINFORMATIONABOUT AGENCIES THAT MAY OFFER LEGAL SER~CES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 Civil Action-Law No. 0.5'- 3 <(j J Ct;.J -c. "A~SO" "Le han demandado en corte. Si usted desea defender contra Ias demandas dispuestas en ias paginas siguientes, usted debe tomar la accion en eI piazo de veinte (20) dias despues de esta queja y se sirve el aviso, incorporando un aspecto escrito personalmente 0 y archivando en escribir con la corte sus defensas U objeciones alas demandas dispuestas contra usted ei abogado ie advierte que que si usted no puede hacer asi que el caso puede proceder sin usted y un juicio se puede incorporar contra usted compra la corte sin aviso adicionai para cuaiquier dinero demandado en la queja 0 para cualquier otra demanda 0 reievacion pedida por ei demandante. U sted puede perder ei dinero 0 ia caracteristica de otra endereza importante a usted. USTED DEBE LLEV AR ESTE P APEL SU ABOGADO INMEDIATAMENTE. SI USTED NO RACE QUE UN ABOGADO VA Y A A 0 LLAME POR TELEFONO La OFlCINA DISPUESTA ABAIO. ESTA OFlCINA PUEDE PROVEER DE USTED LA INFORMACION SOBRE EMPLEAR A UN ABOGADO. SI USTED NO PUEDE PERMITIRSE AL HIRE A UN ABOGADO, ESTA OFICINA PUEDE PODER PROVEER DE USTED LA INFORMACION SOBRE LAS AGENCIAS QUE LOS SERVICIOS mRiDICOS DE LA OFERTA DE MAYO A LAS PERSONAS ELEGIBLES EN UN HONORARIO REDUCIDO 0 NINGUN HONORARIO Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, Plaintiff Civil Action-Law Vs. No. O-~-- 3:{ 3 <{ ~ -r:.-.. STATE FARM INSURANCE COMPANIES Defendant COMPLAINT 1. Plaintiff Regina G. Wenzel is an adult individual who resides at 9 Piney Court, Gardners, Pennsylvania. That address is located in Cumberland County. 2. Defendant State Farm Insurance Companies is a corporation authorized to issue automobile insurance policies in Pennsylvania. Defendant maintains a place of business at 1130 Kennebec Drive, Chambersburg, Franklin County, Pennsylvania. 3. On a date prior to 6/19/04 Defendant issued to Plaintiff insurance policy number 650 7302-C10-381-001 which provided coverage pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa. c.s. S 1702, et seq. Plaintiff does not currently have a copy of such insurance policy, but she believes that the original or a copy is in the possession of Defendant 4. The insurance policy referenced above obligates Defendant to pay for reasonable and necessary treatment and care of injuries arising out of the maintenance and use of a motor vehicle. 5. The insurance policy referenced above was in full force and effect on 6/19/04 when Plaintiff was involved in an accident arising out of the maintenance and use of a motor vehicle, which accident resulted in her suffering bodily injuries. 6. Plaintiff sought treatment of said injuries at Nicastro Chiropractic in Carlisle, Pennsylvania. Defendant has paid Nicastro Chiropractic for only a portion of the care rendered for Plaintiff's injuries. Defendant has denied payment for treatment rendered on and after 9/14/04 on the pretext that such treatment was not reasonable or necessary. 7. Plaintiff continued to treat with Nicastro Chiropractic after 9/14/04 because both she and that provider believed that such treatment was reasonable and necessary. 8. Defendant's refusal to pay for ongoing treatment of Plaintiff's injuries rendered by Nicastro Chiropractic is without reasonable foundation. WHEREFORE, Plaintiff requests the Court to award damages in an amount currently less than $25,000.00, together with interest at the rate of 12% per annum as specified in the MVFRL, reasonable attorney fees pursuant to sections 1716 and/or 1798(a) of the MVFRL, costs of suit, and such additional relief as the Court deems appropriate. Respectfully submitted, Smigel, Anderson & Sacks, LLP Attorneys for Plaintiff Fred H. Hait, ID # 34 31 River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 234-3611 (fax) fhait@sasllp.com AFFIDAVIT I, the undersigned, verifY that the facts set forth in the foregoing Complaint are true and correct, to the best of my knowledge, information, and belief. I acknowledge that any false statements herein are made subject to the penalties of 18 Pa. c.s. 94904, relating to unsworn falsification to authorities. Date 2P /9 / (25 I j &Pd~~a /, ~ ~ J~( '6 ~ fl egma . Wenzel 0 "> 0 = ~:.: ~ ." ~ CJ' {- --/ c:::: ::r:.." ~ ~ r-- nlr;:: ,...,t<1 ~ $ :~(;C:J W (~ L ,-\ /-.> .~'j~r-: 0 """ ;,}~~ <'- .. ~ "- V\ V-, Q., <.J N '" -; S ~~. r- 0 ~ ~ d -< CO -< .~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, CIVIL DIVISION Plaintiff, NO. 05-3535 VS. PRAECIPE FOR APPEARANCE STATE FARM INSURANCE COMPANIES, Defendant. FILED ON BEHALF OF: DEFENDANT COUNSEL OF RECORD FOR THIS PARTY: DANIEL L. RIVETTI, ESQUIRE PA J.D. #73015 ROBB LEONARD MUL VlHlLL FIRM #249 2300 One Mellon Center Pittsburgh, PA 15219 412/281-5431 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, CIVIL DIVISION Plaintiff, NO. 05-3535 vs. STATE FARM INSURANCE COMPANIES, Defendant. PRAECIPE FOR APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Daniel L. Rivetti, Esquire and the law firm of Robb Leonard Mulvihill as attorneys on behalf of DEFENDANT in the above-captioned case. Respectfully submitted, By RorULVlHILL Daniel L. Rivetti, Esq. Attorney for Defendant CERTIFICATE OF SERVICE I hereby certifY that a true and correct copy of the within PRAECIPE FOR APPEARANCE has been served on all counsel this q,ck day of ~. ,2005 by u.s. First Class Mail, postage pre-paid as follows: U Fred H. Hait, Esq. Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1778 iJRJjs-- DanielL. Rivetti, Esquire () '" c = ~ = a~b5 <OJ, > -< c::: :r.::n ~'7; (~ G") ", u)) -oz ~=7i e:. :rl 0 5;~-~; ::!:! :i! "T (~:rj ~ ~?:o .c.-.~ ~ 0'" "'--I .::;! '" ~ 0;) -< , " ,.. . ,." " " ,.,,'.c' SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-03535 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WENZEL REGINA G VS STATE FARM INSURANCE COMPANIES R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: STATE FARM INSURANCE COMPANIES but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of FRANKLIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE On August 24th , 2005 , this office was in receipt of the attached return from FRANKLIN Sheriff's Costs: Docketing Out of County Surcharge Dep Franklin Co Postage 18.00 9.00 10.00 36.20 .74 73.94 08/24/2005 NICASTRO CHIROPRATIC '~.swers. ../.. /") -..../ ~-:~..-..,"-_.,~,---_._.""_._-"~ -----~-- - . R. Thomas Kline Sheriff of Cumbe land County CLINIC Sworn and subscribed to before me this (Cp ~6o~ day of Set Lw tf~-I{, & r In 'the Court of Common Pleas of Cumberland County, Pennsylvania Regina G. Wenzel VS. State Farm Insurance Companies No. 05-3535 civil Now, July 15, 2005 , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Franklin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. '~~~~.J Sheriff of Cumberland County, PA Affidavit of Service Now, ,,\ ~ 2-4 C&IM 'f la.:..J- , 20 ~ , at o'clock q].'AM. served the within upon ~ -hrAuA ':l1VSl.UGL<<.<.L C~CL~ at 11'0 ok"Q...K>l-E.hlL<>-~I'"t-j/<- C:J'_1LM.ku..s;Pi..{''11 (]tA... 17~1 by handing to k~ 1)~~v ( "'1 "-f'\..-t) a {V\A~ .... a H..s.4.R. copy of the original ~01U p fa. ~:J and made known to luv the contents thereof. So answers, ~1M.1 PA.. ~.~ ltuk : Richard D. McCarty, Notary Public. Chambersburg 8oro. Franklin County '.Iv Commission E,pir,~.) .l::tn. 29,2007 c;:::. ~ .s~- f4t. Sheriff of f ya...- ~ County, PA /7:1-<>/'- 6<<5 4C~r~ COSTS SERVICE MILEAGE AFFIDAVIT $ Sworn and subscribed before me this 2-1 day of j ~ ' 20 () r ..~?tn $ 30.,;)..d ,." ... IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, Plaintiff, vs. STATE FARM INSURANCE COMPANIES, Defendant. JURY TRIAL DEMANDED CIVIL DIVISION NO. 05-3535 NOTICE OF SERVICE FILED ON BEHALF OF: DEFENDANT COUNSEL OF RECORD FOR THIS PARTY: DANIEL 1. RIVETT!, ESQUIRE PALO. #73015 MARK A. MARTINI, ESQUIRE PA LD. # 91001 ROBB LEONARD MULVIHILL FIRM #249 2300 One MeHon Center C", Pittsburgh, PA 15219 412/281-5431 ~" , , ,--,'1 ,'J 'j! c' r":'i C') I --' I....,.) ._<" f'''':; U. , .., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA REGINA G. WENZEL, CIVIL DIVISION Plaintiff, NO. 05-3535 vs. STATE FARM INSURANCE COMPANIES, Defendant. NOTICE OF SERVICE PLEASE TAKE NOTICE that I caused Defendant's First Set ofInterrogatones and First Request for Production of Documents, and the within Notice of Service of the same, to be served ~ this ~ day of December , 2005, via United States First Class mail, postage prepaid, upon the following counsel of record: Fred H. Hait, Esq. Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Harrisburg, P A 17110-1778 Respectfully submitted, ROBB LE ARD MUL VlHlLL '..'1 ,---. ; !~ L, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, CIVIL DIVISION Plaintiff, NO. 05-3535 VS. ANSWER AND NEW MATTER STATE FARM INSURANCE COMPANIES, Defendant FILED ON BEHALF OF: DEFENDANT COUNSEL OF RECORD FOR THIS PARTY: DANIEL L. RIVETTI, ESQUIRE PA I.D. #73015 MARK A. MARTINI, ESQUIRE PA I.D. #91001 ROBB LEONARD MULVIHILL FIRM #249 2300 One Mellon Center Pittsburgh, P A 15219 412/281-5431 To; All Parties Yau are hereby notified to tile a written response to the enclosed ANSWER AND NEW MA ITER within twenty (20) days from service hereof or a judgment lIlaybe entered against you. ROUB LEONARD MULVIHILL JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, CIVIL DIVISION Plaintiff, NO. 05-3535 vs. STATE FARM INSURANCE COMPANIES, Defendant. ANSWER AND NEW MATTER AND NOW, comes the Defendant, by and through its attorneys, Robb Leonard Mulvihill Daniel L Rivetti, Esquire and Mark A Martini, Esquire, and hereby files the within Answer and New Matter, and hereby avers as follows: I. Admitted. 2. Denied as stated. It is denied that the correct designation of this Defendant is State Farm Insurance Companies. To the contrary, the correct designation of this Defendant is State Fann Mutual Automobile Insurance Company. 3. While itis admitted that Defendant issued to Plaintiffan insurance policy, it is denied that the policy number identified in Paragraph 3 of the Complaint is correct. To the contrary, the correct policy number is 6507-301-38. 4. Defendant has been advised by counsel and therefore avers that no responsive pleading is necessary to Paragraph 4 as it contains conclusions oflaw. Should a response be deemed necessary, then to the extent the averments of Paragraph 4 refer to the insurance policy, said writing speaks for itself and no further response is required. However, it is admitted that the policy pays for reasonable and necessary medical treatment and care of injuries arising out of the maintenance or use of a motor vehicle subject to the terms, conditions, limitations and exclusions of the policy. 5. Admitted. 6. Admitted in part and denied in part. It is admitted that Plaintiffsought treatment with Nicastro Chiropractic and that Defendant has paid Nicastro Chiropractic for certain ofthe Plaintiffs care. It is also admitted that Defendant denied payment for certain of the Plaintiff's care in accordance with a peer review. It is denied that Defendant relied on any "pretext" to deny the bills. To the contrary, it did not. 7. After reasonable investigation, this Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 7 and therefore denies the same. Strict proof thereof is demanded at the time of triaL By way of further reply, Defendant believes that treatment Plaintiff received from Nicastro Chiropractic on and after September 14,2004 was neither reasonable nor necessary. 8. Defendant has been advised by counsel and therefore avers that no responsive pleading is necessary to Paragraph 8 as it contains conclusions oflaw. Should a response be deemed necessary, then the averments of Paragraph 8 are specifically denied. To the contrary, Defendant's refusal to pay for Plaintiffs ongoing treatment was based on a reasonable foundation, including a properly conducted peer review. WHEREFORE, Defendant demands judgment in its favor, together with costs of suit. 2 NEW MATTER 9. Plaintiffs claims are barred by the relevant provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law. 10. Plaintiffs claims are barred in that the denial of benefits was based upon a properly conducted Peer Review under S 1797 of the Pennsylvania MVFRL 11. Plaintiffs claims are barred in that the denial of benefits was based upon a reasonable foundation. 12. Plaintiff s treatment records and bills were submitted to a Peer Review Organization (hereinafter, PRO) for review. A true and correct copy of the PRO report is hereto attached as Exhibit A and incorporated by reference herein as if fully set forth. 13. The PRO determined that the treatment rendered on and after September 14, 2004 was not reasonable or necessary. (See, Ex. A). 14. Therefore any denial of benefits by State Farm on and after said date was based upon the results of this PRO report. 15. Therefore, Plaintiffs claim for attorney's fees is barred because State Farm's denial of benefits, if any, was based upon a properly conducted Peer Review report under S 1797(b). 16. State Farm advised Plaintiff that any denial of benefits, if any, was based upon the results of the PRO report. 17. Plaintiffs claim for attorney's fees is barred because the denial of benefits was based upon a reasonable foundation. 18. Plaintiffs treatment subsequent to September 14,2004 was neither reasonable or necessary. 3 19. State Farm overpaid Dr. Nicastro $183.78 for treatment rendered to Plaintiff. Theretore, Defendant asserts the affirmative defense of setoff as a complete or partial bar to Plaintiffs claims. 20. Plaintiff fails to state a claim upon which relief can be granted. WHEREFORE, Defendant demands judgment in its favor, together with costs of suit Respectfully submitted, ROBB LEONARD MULVIHILL ~ 0_..... ;/-'."'1--.' , .- // JURY TRIAL DEMANDED 4 ROGER CAINE, D.C. CERTIFlED CHIROPRACTIC REHABILITATION DOCTOR 3237 BRISTOL ROAD, SUITE 102. BENSALEM, PA 19020. (215) 891- 8300. FAX (215) 891 - 8318 January 19, 2005 Kathy Campbell, R.N. Perspective Consulting, Inc. 35 Evansburg Road Collegeville. PA 19426 Re: Regina Wenzel Acct File: 38-K461-037 Date of Injury: 06/19/04 Provider: Nicastro Chiropractic Clinic; Matthew Nicastro, D.C. Perspective File: 36460 Dear Ms. Campbell: In reference to your recent request, I have reviewed the following records having to do with treatment for injuries alleged to have been sustained in the motor vehicle accident of 06/19/04. 1) Nicastro Chiropractic Clinic; Matthew Nicastro. D.C. a. Lumbar Examination Report 06/21/04. b. Cervical Examination Report 06/21/04. c. Radiographic Report 06/21/04. d. Treatment Plan Report 06/21/04. e. Progress Report (undated). f. Treatment Notes 06/21/04 to 11/04/04. g. Invoices 06/21/04 to 11/04/04. Additionally, on 01/12/05 I had a telephone conference with Dr. Nicastro. Having reviewed the above records, the following is a report of my observations and conclusions regarding chiropractic care delivered to this claimant. HISTORY: According to the available records, the claimant was injured in a motor vehicle accident on 06/19/04. There are no records pertaining to E.R. or primary medical care. I EXHIBIT ,4 Page 2 Re: Regina Wenzel Date: 01/19/05 On 06/21/04, the claimant sought treatment from Dr. Nicastro, who did not provide a history of the present complaint, and did not describe the mechanism of injury (type of collision). Dr. Nicastro also did not provide a complete personal or past medical history, and who did not rule out the possibility of a prior chiro- practic treatment history, even though he reported an initial evaluation and management service (99203). . Nevertheless, on 06/21/04, Dr. Nicastro noted spinal ROM deficits, positive responses to various orthopedic and/or neurological screening tests, non-specific muscle weakness was noted for several muscles, and positive palpatory findings for spasm, edema and chiropractic subluxation at multiple levels. Dynamometer grip strength testing was within normal limits. On x-ray examination, Dr. Nicastro reported decreased lumbar lordosis, chiropractic subluxation, and decreased disc height at L3-4 and L5-S1. He made a diagnosis of lumbar disc displacement, cervicobrachial syndrome, lumbar radiculitis, sacroiliac disorder, facet syndrome, muscle spasm and ligament laxity. Treatment is reported to have consisted of daily evaluation and management services that assumably included chiropractic manipulation, interferential stimulation, traction and therapeutic exercises, which began as early as 07/22/04. There are records pertaining to 56 treatment visits from 06/21/04 to 11/04/04. According to the undated progress report, Dr. Nicastro reported approximately 45% improvement. He referred to an unrelated diagnosis of carpal tunnel syndrome, an unexplained inability to perform rehabilitation protocols, the recent death of a relative, the marriage of her son, and increased work responsibilities as complications. He projected a re- examination for the first week of December of 2004. TELEPHONE CONFERENCE: During the telephone conference, Dr. Nicastro stated that he had not treated the claimant previously, and that to his knowledge, there was no prior chiropractic treatment history. He stated that the most recent visit had been on 12/30/04. Dr. Nicastro indicated that he had not sent any records to Perspective Consulting in response to the request for records, and that the records in my possession must be those that he had sent to the carrier along with his invoices. He stated that he did not send records to Perspective Consulting because he was not sent a release si9ned by the claimant, and that under HIPAA he felt compelled to with- hold all records. He stated that the records that were not sent included a proper evaluation that supported the necessity of a rehabilitation program, the daily exercise notes, and the results of functional outcome assessment tests. FEB 1 8 2005 Page 3 Re: Regina Wenzel Date: 01/19/05 In regard to the accident, Dr. Nicastro stated that the mechanism of injury was that the claimant's vehicle was at a complete stop, when it was struck from the rear by another vehicle that was traveling at a speed of approximately 65 miles per hour. He stated that the most recent visit was on 12/30/04. He also stated that there was no advanced diagnostic imaging, such as MRI or CT, because the claimant had responded satisfactorily, and was approximately "85% improved" at the time of the phone. conference. Dr. Nicastro stated the treatment frequency had been reduced to 1 or 2 weekly visits, and he anticipated that MMI would be achieved in approximately 4 weeks (from 01/12/05). Dr. Nicastro stated that the 56 treatment visits were necessary from 06/23/04 to 11/04/04, because the claimant required a rehabilitation program. He stated that manipulation was not necessarily provided on each visit, but that chiropractic evaluation and management services were required in order to evaluation the claimant's on-going status and manage her treatment. He confirmed that the claimant was not able to comply with the recommended treatment frequency, but did not explain why. Dr. Nicastro stated that appropriate clinical and functional outcome goals had been met and could be demonstrated by documentation that was in his possession. A discussion ensued regarding the nature and extent of the original injury, as well as the reported complications. Dr. Nicastro stated that he considered the above mentioned complicating factors as real complications. When I pointed out that these were not objective complications to the reported injury, but were psycho- social factors that may (or may not) indicate a non-organic process. Dr. Nicastro stated: "We're dealing with psycho-social factors", but he did not provide a more specific analysis of those factors. DETERMINA nON: There is sufficient criteria to support the initiation of chiropractic care on 06/21/04 for treatment of injuries reported to have been sustained in the 06/19/04 motor vehicle accident. However, there is insufficient criteria and documentation to support that all treatment modalities and/or procedures were reasonable and necessary, or to support the overall treatment duration. There is insufficient criteria to support the procedures for therapeutic exercise. This is because Dr. Nicastro did not provide documentation of the baseline evaluation for rehabilitation, documentation of on.going re-evaluation including functional outcome tests, or a record of the exercise procedures themselves. ---...--. '~-'. 'FIB 1 8 2005 Page 4 Re: Regina Wenzel Date: 01/19/05 Secondly, Dr. Nicastro did not provide proper documentation of the exercise procedures themselves. That is, he did not document specific exercise protocols or activities, the specific areas or muscle groups to which the procedures were provided, the level of resistance or complexity of the protocols, or how the on- going necessity and effectiveness of the exercise procedures was determined. The absence of this criteria is not consistent with usual and customary guidelines for the 'delivery of rehabilitation procedures in a chiropractic office, including the American College Of Chiropractic Rehabilitation Science and the American Chiropractic Rehabilitation Board, and it does not support that the exercise procedures reported by Dr. Nicastro were reasonable or appropriate. There is insufficient criteria and documentation to support the continuation of treatment by Dr. Nicastro beyond 09/14/04. This determination was made through the following analysis. On 09/14/04, Dr. Nicastro reported a comprehensive (99214) evaluation and management (E&M) service. However, it is observed that he did not document evaluation and management criteria on 09/14/04 that was substantially different than what was documented in conjunction with the usual and routine E & M services as reported on the other dates of treatment. The findings documented on 09/14/04 were not substantially different than those reported on the other dates, and do not establish that the claimant's status and presentation had changed substantially, even though a substantial amount of treatment had been delivered. Also, on 09/14/04 Dr. Nicastro provided the following assessment: "The most recent assessment of Mrs. Wenzel remains the same" This was the same assessment that Dr. Nicastro had reported on each of the 33 treatment visits from 06/23/04 to 09/11/04. This is not a reasonable level of evaluation and assessment, and it is not consistent with usual and customary guidelines for chiropractic management and documentation. Since Dr. Nicastro reported a greater level of E & M on 09/14/04, but did not provide documentation of an additional level of evaluation, assessment and/or management, there is insufficient criteria to support that the continuation of treat- ment was reasonable and appropriate. This is especially the case, because unchanging criteria supports that either no significant injury was present in the first place, or that chiropractic care had produced no documented result from 06/23/04 to 09/14/04. Additionally, it is observed that in the 06/21/04 treatment plan, Dr. Nicastro stated: "Regina will be seen approximately 3 times a week. This frequency of care will continue for 4 weeks. At that time she will receive an examination to reevaluate her condition and evaluate her progress". IFEB ]1 8 2005 , Page 5 Re: Regina Wenzel Date: 01119105 However, Dr. Nicastro did not document an appropriate re-examination and re- evaluation after 06/21/04, and he did not provide documentation of an up-to-date treatment plan. Thus, he did not document sufficient criteria to support that additional chiropractic care was necessary, or that it would result in additional functional or therapeutic gains. Also, it is noted that not on 09/14/04, or on any other date including 06/21104, did Dr. Nicastro describe an objective anatomical complication or impairment, or identify specific and measurable treatment goals. On this point, it is observed that Dr. Nicastro's records do not document a substantial change in the claimant's clinical presentation after 09f14104, and her subjective pain level was documented as being "4" on both 09/14/04 and 11 f04f04. Further, it is also observed that Dr. Nicastro did not provide documentation to substantiate that he employed usual and customary instruments for evaluation of progress, to investigate the possibility of a symptom magnification process, or to rule out the possibility of secondary or tertiary gain. This omission is significant, given that he reported that his initial assessment was not changed on each date of treatment from 06/23/04 through the time of the comprehensive evaluation and management service on 09/14f04, and also given the absence of appropriate and measurable treatment goal, the absence of appropriate records having to do with the exercise procedures, the absence of change in subjective pain levels from 09/14/04 to 11/04/04, and his own statement that "We're dealin9 with psycho- social factors". The absence of the above mentioned historical, clinical and patient assessment criteria, including documentation of appropriate functional outcome instruments and an assessment of a possible symptom magnification process, is not consistent with usual and customary guidelines for chiropractic management and documentation, and it does not support that treatment after 09f14/04 was reason- able and necessary. Accordingly, on-going treatment was not differentiated from maintenance or elective care, from treatment for unchanging subjective complaints consistent with any possible prior chiropractic treatment history, or from excessive treatment, if a symptom magnification process was present. By 09114/04, Dr. Nicastro had delivered at least 33 treatment visits over a period of 12 weeks, had reported a comprehensive (re)evaluation and management service, but had not provided reasonable and/or sufficient clinical findings to substantiate that a significant injury was present, or that additional chiropractic care was necessary. By 09/14104, the claimant had received a reasonable and sufficient amount of chiropractic care to resolve this injury, and to achieve maximum therapeutic improvement level and/or pre-injury status. tFEe 11 8 2005 Page 6 Re: Regina Wenzel Date: 01/19/05 Therefore, based on the insufficiency of objective, diagnostic and clinical criteria, the absence of an appropriate and timely re-examination, re-assessment and up- dated treatment plan, and based on the above analysis, it is my determination that the procedures for therapeutic exercise were not documented to have been reasonable or necessary, that resolution, MMI and/or pre-injury status were achieved by 09/14/04, and that additional chiropractic care was not documented to have been reasonable or necessary. BIBLIOGRAPHY: Please Note: The above report was completed using the following guidelines for duration and frequency of care: 1) Procedural/Utilization Facts, 3rd Edition; Chiropractic Physical Therapv Treatment Standards (Marketing Research, Ltd., 1991). 2) Treatment Paradiqm For Cervical Acceleration/Deceleration Iniuries (Whiplash); Arthur Croft, D.C. (ACA Journal, 1993). The following general guidelines and/or professional resources were also used: 1) Chiropractic Standards Of Practice And Qualitv Of Care Aspen Publishers, 1992). 2) A Doctor's Guide To Record KeepinQ, Utilization ManaQement And Review (Progressive Seminars, 1997). 3) Fundamentals Of Chiropractic Diaqnosis And Manaqement (Williams & Wilkins, 1999). 4) Guidelines For Chiropractic Quality Assurance And Practice Parameters; Proceedinos Of The Mercy Center Consensus Conference (Aspen Publishers, 1993). 5) Psvcholoqical Aspects Of Rehabilitation; Mark Hendler, D.C., Ph.D. (The Chiropractic Rehabilitation Association & Cleveland Chiropractic College, Rehabilitation Course Notes, 1994). 6) Rehabilitation Guidelines For Chiropractic, First Edition (The Chiropractic Rehabilitation Association, 1992). 7) Rehabilitation Of The Spine (Williams & Wilkins, 1996). 8) Selected Ethics And Protocols In Chiropractic (Aspen Publishers, 1991). - (FE8 '1 82005 4 Page 7 Re: Regina Wenzel Date: 01/19/05 REVIEWER VERIFICATION: "I declare that the information contained in this document was prepared and is the work product of the undersigned. and is true to the best of my knowledge", .~ /If' I _ ....... .. ~)./G Rage ~.c. '., 'FEe'l 82005 11/18/05 15:36 FAX 412 281 3711 ROEE LEOr;AEJ) MUj,VIHILL I4i 003 VERIFICATION , \ I, i) { 'l~ , /l ( , ~ , on behalf of STATE fARM INSURANCE COMP ANTES, verify that the statL'TTlerlts made herein in the ANSWER AND NEW MA TIER filed on bcha[f of Stale Farm Insurance Companies are true and correct to the bcst of my knowledge, information and belief and are made subject to the penalties or I 8 Pa. Con_ Stat Ann_ *4904 relating to unsworn falsification authorities_ Date: / i / j, / ,-' Lr 'L'_', By: _ .(;-( (--('---L-< ..~,_.L,--_ Printed Name:~ ;,/J, t lie 1<, CERTIFICATE OF SERVICE I hcrcby certify that a true and correct copy of the within ANSWER AND NEW MATTER has bcen served on all counsel this 5th day of December, 2005 by u.s. First Class Mail, postage prc-paid as follows: Fred H. Hait, Esquire Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Strect Harrisburg, P A 17110-1778 / /11 ~/ //'2 ~ / /f --'1.i' ,r-'/ j i { 1Lt( (./ ;J It,/..<<.-u. . Mark A Martini, Esquirc ,'.) <C-_ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, Plaintiff Civil Action-Law Vs. No. 05-3535 STATE FARM INSURANCE COMPANIES Defendant PRELIMINARY OBJECTION-MOTION TO STRIKE Regina Wenzel, Plaintiff, moves the Court pursuant to Pa. R.Civ. P. 1028to strike the Answer and New Matter filed in this action due to the inclusion of impertinent matter for the following reasons: L This is an action on a motor vehicle insurance policy for payment of first party medical benefits. 2. Defendant in its New Matter at paragraphs 12 through 16, and in Exhibit A attached to the Answer and New Matter avers the existence of the report of a Peer Review Organization (PRO) as a defense to this matter. 3. Although the Motor Vehicle Financial Responsibility Law (MVFRL) permits insurance carriers to request PRO review of medical treatment, the PRO's determination is not binding before this Court because the MVFRL entitles the Plaintiff to a de novo review of whether medical care is reasonable and necessary. Therefore, all references to the PRO determination, and the PRO determination itself are not relevant to this action, and must be stricken as impertinent WHEREFORE. Plaintiff prays the Court for an order striking paragraphs 12 through 16, and Exhibit A from Defendant's New Matter. Respectfully submitted, Smigel, Anderson & Sacks, LLP Attorneys for Plaintiff Fred H. Hait, ID # 43 1 River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 234-3611(fax) fhait@sasllp.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, Plaintiff Civil Action-Law Vs. No. 05-3535 STATE FARM INSURANCE COMPANIES Defendant CERTIFICATE OF SERVICE I certify that concurrent with filing the foregoing Preliminary Objection-Motion to Strike I am serving a copy of same upon counsel of record for the Defendant by First Class Mail, addressed as follows: Daniel L Rivetti, Esq. Mark A. Martini, Esq. Robb, Leonard & Mulvihill 2300 One Mellon Center Pittsburgh, PA 15219 Date /~~5'- Fred H. Hait Attorney for Plaintiff Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 234-3611 (fax) fhait@sasllp.com t~_ " " (.,.. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, CIVIL DIVISION Plaintiff, NO. 05-3535 Ys. RESPONSE IN OPPOSITION TO PLAINTIFF'S PRELIMINARY OBJECTIONS STATE FARM INSURANCE COMPANIES, Defendant FILED ON BEHALF OF: DEFENDANT COUNSEL OF RECORD FOR THIS PARTY: DANIEL L RIVETTI, ESQUIRE PA I.D. #73015 MARK A. MARTINI, ESQUIRE PA I.D. #91001 ROBB LEONARD MULVIHILL FIRM #249 2300 One Mellon Center Pittsburgh, PA 15219 412/281-5431 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA REGINA G. WENZEL, CIVIL DIVISION Plaintiff, NO. 05-3535 vs. STATE FARM INSURANCE COMPANIES, Defendant. RESPONSE IN OPPOSITION TO PRELIMINARY OBJECTIONS AND NOW, comes the Defendant, by and through its attomeys, Robb Leonard Mulvihill Daniel L. Rivetti, Esquire and Mark A. Martini, Esquire, and hereby files the within Response in Opposition to Plaintiffs Preliminary Objections to New Matter: L Admitted. 2. Admitted. By way of further response, State Farm Mutual Insurance Company (hereinafter, "State Farm") not only properly referenced and attached the Peer Review Organization (hereinafter, "PRO") report, but was required to under Pennsylvania Rule of Civil Procedure 1019 (i). Specifically, Rule 1019 (i) requires that "when any claim or defense is based upon a writing, the pleader shall attache a copy of the writing." As State Farm bases its defense, at least partly, upon the PRO report, it was required to attach a copy of the same to its Answer and New Matter. See, Pa.R.e.P. 1019(i). 3. Denied as a false conclusion oflaw to which no response is required. By way of further response, and without waiver of the foregoing, Section 1797 of the MVFRL is the exclusive procedure for challenging the reasonableness and necessity of an insured's medical treatment The statute permits an insurer to challenge said treatment via submission of an insured's medical and treatment records to a peer review organization ("PRO") for analysis of the reasonableness and necessity of the treatment. Specifically, section I 797(b ) provides: (4) Appeal to court. - A provider of medical treatffil~nLor an insured may challenge before a court an insurer's refusal to pay for past or future medical treatment.. the reasonableness or necessity of which the insurer has not challenged before a PRO. Conduct considered to be wanton shall be subject to a paymf:nt of treble damages to the injured party. (Emphasis Added) (5) PRO determination in favor of provider or insured. - Ifa PRO 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% per year on any amount withheld by the insurer pending PRO n:view. (6) Court determination in favor of provider or insured. - If, pursuant to paragraph (4)', 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 II he challenge and all attorney fees. (Emphasis Added). Because any denial of payment by State Farm for Plaintiffs chiropractic bills was based upon a peer review report, Plaintiffs damages are limited to section 1797(b)(5), which does not provide for an award of attorney's fees. Specifically, sub-section (b) (5) expressly outlines the remedies available to an insured where a PRO is utilized, whereas sub-sections (b) (4) and (b) (6) set forth the available remedies if an insurer does not employ and/or rely upon a PRO. Therefore reliance upon, and attachment of, the PRO report was not only proper, but I Paragraph 4 clearly refers to appeals to court only when the insurer did not submit the insured's claims to a PRO. 2 required because Plaintiff is not entitled to an award of attorney's fees because her treatment was submitted to a PRO. Furthermore, State Farm is required to state the facts upon which its defense is based in a concise and summary form. ]0]9 (a). Therefore Plaintiffs contention that State Farm's pleading offacts, e.g, that State Farm relied upon a PRO report in allegedly denying benefits, should be stricken is frivolous. WHEREFORE, the Defendant, State Farm, respectfully requests that this Honorable Court Overrule Plaintiffs Preliminary Objections to New Matter with prejudice and Order Plaintiff to file a Reply thereto within 20 (twenty) days or the averments contained therein shall be deemed admitted. . Respectfully Submitted, ROBB LEONARD MULVIHILL 3 CERTIFICATE OF SERVICE 1 hcreby certify that a true and correct copy of the within RESPONSE IN OPPOSITION TO PRELIMINARY OBJECTIONS has bcen served on all counsel this 20th day of Decembcr, 2005 by U.S. First Class Mail, postage pre-paid as follows: Fred H. Hait, Esquire Smigel, Anderson & Sacks, LLP Rivcr Chase Oflicc Center 4431 North Front Street Harrisburg, P A 17110-1778 ~ ., ~~- -', i, .., -1// /7 {i"'-Ir/ /l1r.?u~~ ' Mark A. Martini, Esquire .~ " IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, CIVIL DIVISION Plaintiff, NO. 05-3535 PRAECIPE FOR ARGUMENT vs. STATE FARM INSURANCE COMPANIES, Defendant. FILED ON BEHALF OF: DEFENDANT COUNSEL OF RECORD FOR THIS PARTY: DANIEL L RIVETTI, ESQUIRE PA 1.0. #73015 MARK A. MARTINI, ESQUIRE PA J.D. #91001 ROBB LEONARD MULVIHILL FIRM #249 2300 One Mellon Center Pittsburgh, PA 15219 412/281-5431 JURY TRIAL DEMANDED . PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and snbmitted in dnplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. --------------------------------------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) Regina G. Wenzel, (plaintiff) vs. State Farm Insurance Companies, (Defendant) No.05 3;535 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): n~fQnd~nt'~ Preliminary Obiections 2. Identify counsel who will argue cases: ( a) for plaintiff: (Name and Address) (b) for defendant: Mark A. Martini, Esqurie RORR T F'DNAlm MllT \TTHTT T (Name and Address) 2300 One Mellon Center. Pittsbur~h. PA 15219 3. I will notify all parties in writing within two days that this case has been listed for argument 4. Argument Court Date: 11ar4I1~ ' Signature M::lrk A M,qrti n; Print your name Date Marcil J(), 7006 ROBB LEONARD MULVIHILL 2300 One Mellon Center Ar,,';'LL'E'uULgll, FA 1~219 orneyor Defendant o ('I ~..~ c.,., C.., .'1 ~~J .; Office of the Prothonotary t Cumberland County Curtis R. Long Prothonotary Mr. Fred H. Hart Smigel. Anderson & Sacks 2917 North Front Street Harrisburg. PA 17110 DATE: April 27. 2006 TO: Attorney Hart: THIS IS TO NOTIFY YOU THAT CASE NUMBER 05-3535. Regina G. Wenzel VS. State Farm Insurance Companies HAS BEEN LISTED FOR ARGUMENT ON Mav 17. 2006. Cumberland County Anllimw ('ollrt .~1 n"'Unl ~-.JS-3S ",.,-",I"C F'fT' ,,-. OF i\1hRoinciifJ\MY 2UO&M^~ \ \ PM Z: \9 . '.,,, 'N 'U,It..,r:r' ,',...",J'....'".i;\'\ C l'/I~{NNSY\:'1J!!\>\\A u.s. FOSTAGt :URTlS R. LONG Prothonotary Cumberland County lne Courthouse Square Carlisle, PA 17013 Mr. Fred H. Hart Smigel, Anderson & Sacks 2917 North F---' N_u' . A 0 INSUFFICIENT ADDRESS ~ Harrisburg, 0 0 ATTEMPTED NOT KNOWN 0 DrHER . C rD SUCH NUMBER! STREET S NOT DELIVERABLE AS ADDRESSED .. . UNABLE TO FORWARD . . #16 REGINA G. WENZEL : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. STATE FARM INSURANCE COMPANIES : NO. 2005 - 3535 CIVIL TERM IN RE: PLAINTIFF'S PRELIMINARY OBJECTION TO ANSWER AND NEW MATTER BEFORE BAYLEY. GUIDO. JJ. ORDER OF COURT AND NOW, this 22ND day ofMA Y, 2006, after review of the briefs filed by the parties and having heard argument thereon, Plaintiffs Preliminary Objection in the form of a Motion to Strike is GRANTED insofar as Exhibit A to Defendant's Answer and New Matter is STRICKEN. In all other respects, it is DENIED. ~ .,..Yr'ed H. Hait, Esquire River Chase Office Center 4431 North Front Street Harrisburg, Pa. 17110 ,Aaniel R. Rivetti, Esquire Mark A. Martini, Esquire 2300 One Mellon Center Pittsburgh, Pa. 15219 ~ ~ ,,~a ~y Court Administrator :sld V:~.jV;,Yl,(,~:';Ni"J~L:J A.1Nn:"~'~ ,", ^. t::i!\ino L S :Zl lid SZ}, V\~ 9002 1U\-;1...".~"" "" ::11.11:10 ^UV In'~lJ'i,,:,_U;jQ ...i"1 :J8L:!: i()0311:l .. . .,. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, CIVIL DIVISION Plaintiff. NO. 05-3535 vs. DEFENDANT'S MOTION TO COMPEL DISCOVERY STATE FARM INSURANCE COMPANIES. Defendant. FILED ON BEHALF OF: DEFENDANT COUNSEL OF RECORD FOR THIS PARTY: DANIEL 1. RIVETTI. ESQUIRE PA J.D. #73015 MARK A. MARTINI, ESQUIRE PA J.D. #91001 ROBB LEONARD MULVIHILL FIRM #249 2300 One Mellon Center Pittsburgh. PA 15219 412/281-5431 JURY TRIAL DEMANDED - .. " IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, CIVIL DIVISION Plaintiff, NO. 05-3535 vs. STATE FARM INSURANCE COMPANIES, Defendant. DEFENDANT'S MOTION TO COMPEL DISCOVERY AND NOW, comes the Defendant. by and through its attorneys, Robb Leonard Mulvihill Daniel L. Rivetti, Esquire and Mark A. Martini. Esquire, and hereby files the following Motion to Compel Discovery: 1. On December 5. 2005, Defendant, State Farm Mutual Automobile Insurance Company. improperly named as STATE FARM INSURANCE COMPANIES (hereinafter. "State Farm"). served its First Set of Interrogatories and Request for Production on Plaintiff s attorney. 2. Plaintiff did not respond to the discovery requests within 30 days. 3. Accordingly, on June 5, 2006, State Farm's attorney sent correspondence to Plaintiff s attorney requesting that he advise as to when the discovery responses could be expected. 4. State Farm did not receive a response to this letter and Plaintiff did not provide responses to the discovery requests. 5. Well over 30 days have passed and State Farm is prejudiced by Plaintiffs failure to provide it with the discovery responses to which it is entitled. , . WHEREFORE, Defendant, State Farm Mutual Automobile Insurance Company, improperly named as STATE FARM INSURANCE COMPANIES, respectfully requests that this Honorable Court order Plaintiff. Regina G. Wenzel, to provide answers and responses to Defendant's First Set of Interrogatories and Request for Production within 10 (ten) days. or shall suffer appropriate sanctions. Respectfully submitted. By DanielL. Ri ett' qUIre Mark A. Martini. Esquire Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that I caused a true and correct copy of the within MOTION TO COMPEL DISCOVERY to be served on all counsel this d.L!...-€ay of June 2006 via U.S. First Class Mail, postage pre-paid as follows: Fred H. Hait. Esq. Smigel. Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Harrisburg. P A 17110-1778 C'i ~~ =;..1 i"\"1j i',) e....::, REGINA G. WENZEL, Plaintiff v. STATE FARM INSURANCE COMPANIES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3535 CIVIL TERM ORDER OF COURT AND NOW, this 28th day of June, 2006, upon consideration of Defendant's Motion To Compel Discovery, a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. ~d H. Hait, Esq. River Chase Office Center 4431 North Front Street Harrisburg, P A 1711 0-1778 Attorney for Plaintiff ~k A. Martini, Esq. ~ ROBB, LEONARD & MUL VlHILL 2300 One Mellon Center Pittsburgh, PA 15219 Attorney for Defendant :rc BY THE COURT, ~ .",;9 \j - . I. ;./ j :. - , . , n) " ::~ ; ,"1 :-"'J c':.' - -' , ; r:? ~ : ::~1 C ...;: , \ -." IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, Plaintiff Civil Action-Law Vs. No. 05-3535 STATE FARM INSURANCE COMPANIES Defendant REPLY TO NEW MAITER 9. The allegations of Paragraph Nine are conclusions of law which require no response. 10.The allegations of Paragraph Ten are conclusions of law which require no response. 11. Denied as stated. Plaintiff asserts in response that the denial of benefits was arbitrary and without reasonable foundation. 12. Plaintiff admits that treatment records and bills may have been submitted to a peer review organization, but denies that such submission constitutes a defense to the merits of her claim because the MVFRL entitles her to de novo review of whether the treatment in question was reasonable and necessary. 13. Plaintiff admits that such a determination was made, but denies that such determination constitutes a defense to the merits of her claim because the MVFRL entitles her to de novo review of whether the treatment in question was reasonable and necessary. 14. Plaintiff admits that Defendant's denial of benefits on and after 9/14/04 may have been based upon the results of the PRO report, but denies that the report constitutes a defense to the merits of her claim because the MVFRL entitles her to de novo review of whether the treatment in question was reasonable and necessary. 15. The allegations of Paragraph Fifteen are conclusions of law which require no response. 16. Plaintiff admits that Defendant advised her it was denying benefits based on the PRO report, but she denies that the report constitutes a defense to the merits of her claim because the MVFRL entitles her to de novo review of whether the treatment in question was reasonable and necessary. 17.The allegations of Paragraph Seventeen are conclusions of law which require no response. 18. Plaintiff denies that treatment subsequent to 9/14/2004 was neither reasonable nor necessary. To the contrary, Chiropractic treatment after that date continued to be \ reasonable and necessary because she remained symptomatic and her condition had not yet stabilized. 19. The allegations of Paragraph Nineteen are conclusions of law which require no response. 20. The allegations of Paragraph Twenty are conclusions of law which require no response. Respectfully submitted, SMIGEL, ANDERSON & SACKS, LLP ~~ Fred H. Hait, 10 # 34331 Attorney for Plaintiff River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 234-3611 (fax) fhait@sasllp.com AFFIDAVIT I verify that the facts set forth in the foregoing Reply to New Matterare true and ~. correct, to the best of my knowledge, information, and belief. I acknowledge that any false statements herein are made sUbject to the penalties of 42 Pa. C.S. S 4904 relating to unsworn falsification to authorities. Date "1 J~ ) IJ b / ' ;;CUAJ~ At, L1fJ Regiri'a Wenzel t: r".) ~-' j c'o (:_-~~, ,,- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, CIVIL DIVISION Plaintiff, NO. 05-3535 vs. DEFENDANT'S MOTION TO COMPEL DISCOVERY (Second) STATE FARM INSURANCE COMPANIES, Defendant. FILED ON BEHALF OF: DEFENDANT COUNSEL OF RECORD FOR THIS PARTY: DANIEL L. RIVETTI, ESQUIRE PA I.D. #73015 MARK A. MARTINI, ESQUIRE PA J.D. #91001 ROBB LEONARD MULVIHILL FIRM #249 2300 One Mellon Center Pittsburgh, P A 15219 412/281-5431 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, CIVIL DIVISION Plaintiff, NO. 05-3535 vs. STATE FARM INSURANCE COMPANIES, Defendant. DEFENDANT'S MOTION TO COMPEL DISCOVERY (Second) AND NOW, comes the Defendant, by and through its attorneys, Robb Leonard Mulvihill Daniel L. Rivetti, Esquire and Mark A. Martini, Esquire, and hereby files the following Motion to Compel Discovery (Second): 1. This case arises out of Plaintiff s claim for first party medical benefits under an automobile insurance policy that she maintained with Defendant, State Farm Mutual Automobile Insurance Company, improperly named as STATE FARM INSURANCE COMPANIES (hereinafter, "State Farm"). 2. Plaintiff alleges that State Farm improperly denied her benefits for treatment that she received from Dr. Nicastro and/or Nicastro Chiropractic on and after September 14,2004. 3. She claims that treatment on and after that date was medically reasonable and necessary despite a PRO report to the contrary. 4. On December 5, 2005, State Farm served its First Set of Interrogatories and Request for Production on Plaintiff. 5. At Requests for Production numbers 6 and 7, State Farm requested that Plaintiff produce the following: Any and all medical records, medical reports, diagnostic studies and medical bills for Plaintiff. Any and all documentation of Plaintiff's medical expenses arising from the injuries sustained in the June 19, 2004 motor vehicle accident. A true and correct copy of State Farm's Request for Production is hereto attached as Exhibit A. 6. Plaintiff did not produce these records in response to discovery. 7. Rather, she advised that she would produce them once they were received. A true and correct copy of Plaintiff's attorney's correspondence of August 7, 2006 stating the same is hereto attached as Exhibit B. 8. State Farm noticed Plaintiff's deposition to occur on September 22, 2006. A true and correct copy of the deposition notice is hereto attached as Exhibit C. 9. In accordance with Pennsylvania Rule of Civil Procedure 4007.1(d) (1), State Farm directed Plaintiff to bring with her and produce the following documents at her deposition: Copies of any and all of Plaintiff's records from Dr. Nicastro and/or Nicastro Chiropractic from March 5,2005 through September 6,2005. (Ex. C). 10. Plaintiff again did not produce these records. See pages 7-8 of Plaintiff's deposition, the relevant portions of which are hereto attached as Exhibit D. 11. The billing statements of Dr. Nicastro that Plaintiff produced reflect that she treated during the time period for which State Farm requested records. A true and correct copy of the billing statement is hereto attached as Exhibit E. 2 12. Moreover, at her deposition, Plaintiff testified that she treated with Dr. Nicastro for at least part of the subject time period for which State Farm requested records. (Ex. D at pp.26-29). 13. Accordingly, at Plaintiff's deposition State Farm renewed its request for these records and further requested that the records be provided through October 2005 which is when Plaintiff testified she stopped treating. (Ex. D at pp. 26-29 and 36). 14. Plaintiff has still not produced these records. 15. These records are relevant to the claims and defenses of the within action or reasonably calculated to lead to the discovery of admissible evidence because they relate to the reasonableness and necessity of Plaintiff's treatment with Dr. Nicastro and/or Nicastro Chiropractic and/or her alleged damages. 16. State Farm is prejudiced by Plaintiff's failure to produce these records. WHEREFORE, Defendant State Farm respectfully requests that this Honorable Court order Plaintiff Regina Wenzel to produce copies of her records from Dr. Nicastro and/or Nicastro Chiropractic from March 5, 2005 through October 2005 within 10 (ten) days, or shall suffer appropriate sanctions. By JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that I caused a true and correct copy of the foregoing MOTION TO COMPEL DISCOVERY (Second) to be served on all counsel this /1J<A..dayof November, 2006 via U.S. First Class Mail, postage pre-paid as follows: Fred H. Hait, Esq. Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Harrisburg, P A 17110-1778 (Counsel for Plaintiff) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, CIVIL DIVISION Plaintiff, NO. 05-3535 VS. REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO PLAINTIFF STATE FARM INSURANCE COMPANIES, Defendant. FILED ON BEHALF OF: DEFENDANT COUNSEL OF RECORD FOR THIS PARTY: DANIEL L. RIVETII, ESQUIRE PA I.D. #73015 MARK A. MARTINI, ESQUIRE PA I.D. # 91001 ROBB LEONARD MULViHILL FIRM #249 2300 One Mellon Center Pittsburgh, P A 15219 412/281-5431 JURY TRIAL DEMANDED EXHIBIT , A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, CIVIL DIVISION Plaintiff, NO. 05-3535 vs. STATE FARM INSURANCE COMPANIES, Defendant. REOUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO PLAINTIFF Pursuant to the Pennsylvania Rules of Civil Procedure, Defendant requests the Plaintiff produce for inspection and copying the following designated documents which are in her possession, custody or control and serve the requested documents upon Defendant's counsel, Daniel L. Rivetti, Esquire, within thirty (30) days from the date of service hereof. Pursuant to the Pennsylvania Rules of Civil Procedure, Defendant requests the Plaintiff produce for inspection and copying the following designated documents which are in her possession, custody or control and serve the requested documents upon Defendant's counsel, Daniel L. Rivetti, Esquire, within thirty (30) days from the date of service hereof. DEFINITIONS "Document" as used in the preceding paragraph refers to any written, printed, typed, and/or other grapbic material of any kind or nature, including, but not limited to letters or other correspondence, memoranda, notes, work papers, transcripts, information forms, minutes or reports of meetings, telephone or other conversations, interviews or conferences, reports, invoices, statistical records, appointment books and diaries, charts, graphs, designs, drawings and blueprints, opinions, messages, test results and anything similar to any of the foregoing however designated or denominated by Plaintiffs in the possession and/or control of the Plaintiffs or known by the Plaintiffs to exist; it shall also mean all copies of documents by whatever means made, and all drafts whether or not finalized; and shall include any marginal notes or other markings appearing on any such "document" or "writing." REOUESTED DOCUMENTS 1. Any and all documents and/or exhibits which Plaintiff intends to introduce at the trial of this matter. 2. Any and all photographs, diagrams or other documents concerning or in any way relating to the June 19, 2004 motor vehicle accident of including, but not limited to, photographs of the scene of the accident, the vehicles in question, etc. 3. All reports, letters, memoranda and/or other written or recorded matter prepared by investigators or any other persons, other than an attorney, which concerns the injuries in this case. 4. Any and all statements of any witnesses or parties to this action concerning or in any way relating to the Plaintiffs' claims against State Farm. 5. All reports of experts who have been consulted and who will be called as witnesses at the trial of this case and/or all documents or other exhibits which form the basis of any opinion of any. expert which may be called to testify in this case. 6. Any and all medical records, medical reports, diagnostic studies and medical bills for Plaintiff. 7. All reports, letters, memoranda and/or other written or recorded matter prepared by investigators or any other persons, other than an attorney, which concerns the injuries in this case. 8. Any and all statements of any witnesses or parties to this action concerning or in any 2 way relating to the Plaintiff s claims against State Farm Mutual Automobile Insurance Company. 9. All reports of experts who have been consulted and who will be called as witnesses at the trial of this case and/or all documents or other exhibits which form the basis of any opinion of any expert which may be called to testify in this case. 10. Any and all documentation of Plaintiffs medical expenses arising from the injuries sustained in the June 19, 2004 motor vehicle accident. 11. Any and all correspondence relating to Plaintiffs first party medical benefits claim and/or payment of her medical bills which are the subject of this lawsuit. 12. Any and all of Plaintiffs medical bills which Plaintiff claims have not been paid by State Fann. 13. Any and all documents supporting Plaintiffs claims against State Farm. 14. Any and all documents identified in Plaintiffs Answers to Interrogatories. 15. Any and all documents relied upon in Answering the First Set of Interrogatories. 16. Any and all documents relied upon by you in making the allegations ofthe Complaint. 17. Any and all medical records, bills, diagnostic studies, treatment notes and the like from Nicastro Chiropractic for treatment and/or services rendered to Plaintiff within the last 10 (ten) years. Respectfully submitted, 3 CERTIFICATE OF SERVICE I hereby certifY that I caused a true and correct copy of the foregoing REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO PLAINTIFF to be served upon all counsel of record on this ;1'-- day of December, 2005 by U.S. First Class Mail, postage pre-paid as follows: Fred H. Hait, Esq. Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Harrisburg, P A 17110-1778 SMIGEL, ANDERSON & SACKS LLP ATTORNEYS AT LAW FRED H. HAIT, J.D. PHONE: (717) 234-2401 TOLL FREE: (800) 822-9757 OR 1-877-COMPHELP CHAMBERSBURG (717) 263-7344 FACSIMILE (717) 234-3611 EMAIL Ibait@sasllp.com 8200- 1-6 8/7/06 Daniel L. Rivetti, Esq. Mark A. Martini, Esq. Robb, Leonard Mulvihill 2300 One Mellon Center Pittsburgh, P A 15219 Re: Wenzel v. State Farm Cumberland County Dear Counsel: I enclose a copy of a statement from Nicastro Chiropractic for services from 9/7/04 to 9/6/05, which by my calculation show a total due of $14,135.00 for services rendered from 9/14/04 forward. I also enclose copies of Nicastro Chiropractic treatment records from 6/21/04 to 3/5/05. Treatment continued until 9/6/05. I will forward those additional records when I have received them. With response to Interrogatory 18, we are not contending that any health care provider has refused to treat Ms. Wenzel because of the Peer Review report. To the contrary, Dr. Nicastro continued to treat Ms. Wenzel until 9/5/05. Very truly yours, Enclosures Cc: Regina Wenzel EXHIBIT River Chase Office Center. 3rd Floor. 4431 North Front Street. Harrisburlr. Pennsvlvania 17110 A PENNSYLVANIA LIMITED PARTNERSHIP } .D S 13 ~', ...s IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, Plaintiff, vs. STATE FARM INSURANCE COMPANIES, Defendant. JURY TRIAL DEMANDED CIVIL DNISION NO. 05-3535 NOTICE OF DEPOSITION FILED ON BEHALF OF: DEFENDANT COUNSEL OF RECORD FOR THIS PARTY: DANIEL L. RNETTI, ESQUIRE P A I.D. #73015 MARK A. MARTINI, ESQUIRE PA I.D. #91001 ROBB LEONARD MUL VIRlLL FIRM #249 2300 One Mellon Center Pittsburgh, PA 15219 412/281-5431 EXHIBIT I C IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, CIVIL DIVISION Plaintiff, NO. 05-3535 vs. STATE FARM INSURANCE COMPANIES, Defendant. NOTICE ,OF DEPOSITION TO: ReginaG. Wenzel clo Fred H. Hait, Esq. Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1778 PLEASE TAKE NOTICE that the Defendant by and through its attorneys, ROBB LEONARD MUL VIHll.,L, Daniel L. Rivetti, Esquire and Mark A. Martini, Esquire, will take the oral deposition of the Plaintiff, REGINA G. WENZEL at the law offices of SMIGEL, ANDERSON & SACKS, LLP on Friday, September 22, 2006 commencing at 12:00 p.m., or soon thereafter, before a person duly authorized by law to administer oaths. Said deposition will be taken for the . . purpose of discovery and use at trial pursuant to the Pennsylvania Rules of Civil Procedure. A' counsel and parties are invited to be present and take part as may be fitting and proper. Pursuant to Pennsylvania Rule of Civil Procedure 4007.1 (d) (1), Plaintiff is din' bring with her and produce the following documents: 1) Copies of any and all of Plaintiffs records from Dr. Nicastro and! Chiropractic from March 5, 2005 through September 6,2005. it...", 2) Copies of any and all of Plaintiff's records from Dr. Nicastroandlor Nicastro Chiropractic for the 5 years before the underlying accident. 3) Copies of any and all other records of Plaintiff from any other health, medical, chiropractic andlor therapeutic provider relating to treatment of her neck, back and/or shoulder from 1994 through the present. Daniel L. Rivet i, E Mark A. Martini, Es re Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within NOTICE OF DEPOSITION has been served on all counsel this ~y of Au~st , 2006 by U.S. First Class Mail, postage pre-paid as follows: Fred H. Hait, Esq. Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Harrisburg, P A 17110-1778 1 REGINA G. WENZEL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL DIVISION NO. 05-3535 STATE FARM INSURANCE COMPANIES, Defendant DEPOSITION OF: REGINA G. WENZEL TAKEN BY: Defendant BEFORE: Tammy L. Bock, Court Reporter-Notary Public DATE: September 22, 2006, 11:52 a.m PLACE: Nicastro Chiropractic Clinic 1224 Holly pike Carlisle, Pennsylvania APPEARANCES: SMIGEL, ANDERSON & SACKS, LLP BY: FRED H. HAlT, ESQUIRE FOR - PLAINTIFF ROBB, LEONARD, MULVIHILL BY: .MARK A. MARTINI, ESQUIRE FOR - DEFENDANT ~(Q)[J2>)f EXHIBIT I D s ACBA SERVICES, INC. PHONE: 412-261-5588 FAX: 412-263-5353 Page 6 A Yes. Q Where were you born? A Price Hill, West Virginia. Q West Virginia. Did you graduate from high school? A Yes. Q Where? A Mount Hope, West Virginia. Q What year was that? A 1973. Q Any post-high school education? ANo. Q Are you presently employed? A Yes. Q Where are you employed at? A Carlisle Barracks. Q State Police? A Dispatcher, Carlisle Barracks, Army War College. Q And you stated that you're a dispatcher? A Yes. Q How long have you held that position? A Six years. Q And what do you do as a dispatcher? A I set up transportation for all the conferences for four star generals and everything coming in. Page 7 Q And this is for the United States Army? A Yes. Q Are you a civilian employee? A I'm part of a contractor. Q Who are you contracted through? A We just switched, Field Support Services. Q Where is Field Support Services located? A Greenbelt, Maryland. I had to think. Q Have you ever had your deposition taken before or any reason? A No. Q Before I get too far ahead of myself, does your ob as a dispatcher, does it involve any manual labor, ifting, anything along those lines? A No. (Wenzel Exhibit NO.1 marked.) Y MR. MARTINI: Q I'm handing you what's been marked as Exhibit 1, vhich is a copy of the notice of deposition that we sent to our attorney in relation to your deposition here today. nd we were requesting certain records in that notice of eposition. Did you bring any of those records with you ::>day? !\ No. ~ Just for the record, we had requested copies of Page 8 any and all Plaintiffs records from Dr. Nicastro and/or Nicastro Chiropractic from March 5th, 2005 through September 6th, 2005; copies of any and all Plaintiffs records from Dr. Nicastro and/or Nicastro Chiropractic for the five years before the underlying accident; and copies of any and all other records of Plaintiff from any other health, medical or chiropractic and/or therapeutic provider related in the treatment of her neck, back and/or shoulder from 1994 through the present. Could you please tell me -- strike that. You were involved in an accident on June 19th, 2004, Is that correct? A Yes. Q And could you tell me what injuries you're claiming that you sustained in that accident? A Lower back. Q You can put that on the table, so you don't have to hold that any longer. A (Witness complies.) Q Any other injuries besides your lower back? A No. Q Before the June 19th, 2004 accident, had you ever suffered any injuries to your lower back? A No. Q Before the June 19th, 2004 accident, had you Page 9 ever received any treatment for your lower back? A No. Q When I refer to the subject accident, I'm going to be referring to the June 19th, 2004 accident, just so it's clear in case I don't specifically say the date. Before the subject accident, had you ever received any chiropractic treatment? A Yes. Q When was that? A I'm not sure what year. Q Was it in the 90s, 80s, before that? A In the 80s. Q And what were you receiving chiropractic treatment for? A Just stress. Q And where did you receive that chiropractic treatment? A Dr. Bock. Q B-O-C-K? A I believe so. MR. HAlT: I think it was B-O-C-H. MR. MARTINI: Okay. Thank you. MR. HAlT: He's no longer practicing. BY MR. MARTINI: Q Before the accident, other than this treatment 3 (Pages 6 to 9) ACBA SERVICES, INC. Phone: 412-261-5588 Fax: 412-263-5353 .......c__,c___c__ __ c__ Page 26 A No. · Q Do you know if there was any time that Dr. Nicastro did not bill you for your treatment? A He has never billed me. Q He's never issued a bill to you? ANo. Q After the insurance company -- after you were told that the insurance company wasn't going to pay for any : additional treatment, how often did you start treating with iDr. Nicastro after that point? A Until he called me back and told me we were good to go again. I'm not sure when that was. Q Did he tell you why you were good to go again? A It had to do with the insurance company. Q So was it your understanding that the insurance company was paying for your treatment? A At that timet yes. Q When did you find out that they weren't paying or your treatment? A The first time -- they didn't call me. Dr. Nicastro's office called me at work and told me we were no onger going to be paid for by the insurance company. Then n February of 2005, we were supposed to go back. Well, hey didn't come through. And then Nicastro said we could o back in to doing the strength training and seeing me. Page 28 A I don't know. Q Do you know where Ms. Gibson lives? A No, I don't. Q When you were doing the strength straining with Ms. Gibson, how long did those sessions last? A An hour and a half, two hours. Q Did you have an understanding of who was paying for those sessions? A No. Q For that period of time, February, March, April, May of 2005, were you doing any of your strength training at all during that time? A No. Q So tell me about this conversation that you had with Dr. Nicastro whenever he called and told you that everything was good again. Did he just call you and say -- A His secretary called and said I was to go back into strength training, and I started three days a week. Q And this was in June? A Yes. Q 2005? A Yes. Q What's his secretary's name? A Linda. Q Do you know her last name? Page 27 Page 29 Q He didn't tell you why? A No. Q And this was February 2005? A Yes. But we actually didn't start back in until June, I believe. Q Did you treat with Dr. Nicastro in February, March, April or May of 2005? A Not strength training, no. Q Not strength training? A Not strength training. Q But you still treated here? A. Yes. ~ This -- what was your personal trainer's name gain? \ Cheryl Gibson. 2 Was sh~ -- is she an employee of Nicastro? , I believe so. ! So did Dr. Nicastro's office put you in touch th Ms. Gibson for the strength training? He took me over there. Do you know if Ms. Gibson is a trained iropractor? I No, she's not. Do you know if she's a trained physical ~raplst or occupational therapist? A No. Q How long did the strength training last? How many months or weeks for three days a week after you started back in June 20057 A I stayed until October. Q October 2005? A Yes. Q Why did you stop in October 2005? A I was running from work, clear across town, back across town, back to home. And with gas prices, I stopped on my own. Q Have you started back up again? ANo. Q Have you started back up with treatments with Dr. Nicastro? A No. Q When was the last time you had an actual appointment with Dr. Nicastro in his office? A Meaning? Q In here or he actually was providing services to you here at the office as opposed to the strength training at Gold's Gym. A He hasn't seen me since October. Q 2005? A Yes. 8 (Pages 26 to 29) ACBA SERVICES, INC. Phone: 412-261-5588 Fax: 412-263-5353 rn.. \\ \ \V, --_..---....,......~~""~-..-...._._- Page 34 A No, slr, I did not. Q Did Dr. Nicastro ever tell you that he received a copy of what's marked as Exhibit 4? A No, sir. Q Did Dr. Nicastro ever tell you that he received a letter that's similar to what we just reviewed, Exhibit 3? A No, sir. Q Do you have any understanding as to why State Farm denied payment for any additional treatment with Dr. Nicastro? A No. Q Did Dr. Nicastro ever tell you why State Farm had denied any additional treatment with him or his office? A No. i Q In your complaint you state that Plaintiff, that being you, continued to treat with Nicastro Chiropractic after 9/14/04 because both she and that provider believed : that such treatment was reasonable and necessary. i Could you tell me in your own words why you believed treatment after September 14th, 2004 was , reasonable and necessary? I A Because no one told me otherwise that it was not. Q And have you ever spoken with any chiropractors Page 35 r any other medical providers either before or after eptember 14th, 2004 regarding the treatment that Dr. icastro was providing -- A No. Q -- to you? At the time of the accident, did you - you had HealthAmerica health insurance, correct? A Yes. Q Do you know if any of your chiropractic bills ere submitted to HealthAmerica? A No, they were not. Q Did you ever provide your health insurance formation to Dr. Nicastro so that he could submit bills HealthAmerica? No, No? No. Before your deposition here today, did you view any documents in anticipation of your deposition? No. Other than your attorney, did you speak with any dividuals about your deposition before today? No. Did you have any conversations with Dr. Nicastro arding your deposition? No. Page 36 Q We were -- your attorney produced for us Dr. Nicastro's records relative to your treatment with Dr. Nicastro. Do you have any reason to doubt the accuracy of his records? A No, I do not. MR. MARTINI: And just for the -- just for the record, I want to, again, note that we requested those specific documents and the deposition notice relating to Dr. Nicastro's records from March 'OS through September '05. We're now renewing that and asking for the records through October 2005. And I don't have any additional questions. MR.HAIT: We're done. (The deposition concluded at 1:04 p.m.) Page 37 COMMONWEALTH OF PENNSYLVANIA ) SS. COUNTY OF CUMBERLAND ) I, TAMMY L. BOCK, a Court Reporter-Notary Public authorized to administer oaths and take depositions in the trial of causes, and having an office in Carlisle, Pennsylvania, do hereby certify that the foregoing is the testimony of REGINA G. WENZEL. I further certify that before the taking of said deposition, the witness was duly sworn; that the questions and answers were taken down stenotype by the said Reporter-Notary, approved and agreed to, and afterwards reduced to computer printout under the direction of said Reporter. I further certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within deposition to the best of my ability, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto inscribed my hand this 22nd day of September, 2006. 10 (Pages 34 to 37) ACBA SERVICES, INC. Phone: 412-261-5588 Fax: 412-263-5353 . ~casbu ctiropmctic Clinc, 1224 t-blIyPike Carlisle, PA 17013 (717)243-6396 ~ ~ ~ira \Aa"r2e1 9 Pi ney CoLrt Gardrers, PA 17324 ~ I Date Docanent Description Case Na..nber Pmlunt 917/2fJJ4 OOJ731a:x:Xl Est pt afice Visit 15 Mn. 572 65.00. 97/2004 00)731 CJCXX) lherc:py 512 165.00 91712f:JJ4 000731CXXXl lherc:py rrrcdiCJ1 572 40.00 9'8'2004- cmT31 CXXXJ Est Pt afice Visit 15 Mn 572 65.00 9'&'2004 cm73100X> lherc:py 512 165.00 8/2004 CBJ7310c00 lherc:py fTractial 572 40.00 ) 9'9'2004 CHJ73100XJ Est Pt OIice Visit 15 Mn. 572 65.00 1 9'9'2004- CBJ731((D) Therapy 512 165.00 [9'11/20)4 <m731CXXXJ Est Pt afice Visit 15 Mn 512 65.00 9' 11/2C.XJ4 00073100:0 lherc:py 572 165.00 fi 14f2(X)4 000731<XXX> Est Pt Office Visit 15 Mn 572 65.00 9/1412004 000731CXXX> Therapy 572 165.00 9'16'2004- 000731CXXD Est Pl afire VISit 15 Mn. 512 65.00 9116'2004 oaJ731 CXXX) lherc:py 512 165.00 ~2Ql2004 000731 (Xl)) Est R afice Visit 15Mn 512 65.00 / '2I2!Y2004 000131(0)) Therapy 512 1&5.00 9'2212004- OOJ731<XlXl Est Pt alice Visit 15 Mn. 572. 65.00 )\ 9'Z2I2004 cm731<XXXJ Therapy 572 165.00 9'22/2004- <m731CXXXJ Est Pt OIice VLSit 15 Mn. 512 65.00 L~~ZX>> CB>73100lJ Therapy 572 165.00 9/27/2004 cm731o:XXJ Est pt afica Visit 15 Mn. 572 65.00 91Zlf2fX>> CBJ7310c00 lherc:py 572 165.00 ~~~~.. OrJtirued Ccrtirued Ortirued Continued EXHIBIT 6'd i .D a E epu!l ef;~: L L 90 La 5n'v' m9-f;vlL ~L {< , N castro Cliropractic CIi ric, 1224 r-bIIy Pike Car1isle. PA 17013 (717)243--6396 ~....- .- ~ ~ ", 9'3CY2OO5 ~ R3gina V\enzeI 9 Pirey Cout Gardrers, PA 17324 ~ 1 Date Docurrent Description Case Nl8Tber PmJunt 9'29'~ 0ffJ731 <XXX> Est Pt Office Visit 15 Mn. 572 65.00 9'29'2X)4 000731<XXXl ~ 572 165.00 9':D'AD4 cro731<XXX> Est PI: afice Visit 15 Mn. S12 65.00 t 9'3Y2004 a:D73100X> ~ 512 165. 00 "- 10'41Lr04 00073100J0 Est pt afice Visit 15 Mn. 512 65. 00 ) 10'4!2004 OOJ731<XXX> lherapy 512 165.00 10'&2))4 0&)731 CXXXJ Est: Pt afice Visit 15 Mn. 572 65.00 10'&'2004 ooo73100Xl ~ 512 165.00 .-.107U!X)4 000731 (XXX) Est pt Ofice Visit 15 Mn. 572 65.00 , 1CY7f2X)4 cm731 ((XX) ~ 572 165.00 .; 10'1aJ2004 000731CXXXJ Est Pt afice Visit 15 Mn 512 65.00 I .' 10'1312004- OOJ7310C0J ~ 572 165.00 10'1412004 OOJ731<XXX> Est Pt Office Visit 15 Mn. 572 65.00 10'141ZD4 OOJ731<XX.XJ ~ 512 165.00 10'15'2Xl4 00073100::0 Est PI: alice Visit 15 Mn 572 65.00 \ 10'15'2D4 OOJ731OXXJ ~ 572 165.00 I ~ j 10'18'2lXl4 000731??oo Est Pt Office Visit 15 Mn. 512 65.00 .... 10'18'ZD4 ~1QOCX) lherapy 572 165.00 t ..... 10'2112004 000731CXXX> Est Pt afica Visit 15 Mn 572 65.00 10'21/2004 000731CXXX> lherapy 572 165.00 1Qf26f2X)4 oaJ731<XXD Est Pt afice Visit 15 Mn. 572 65.00 1Qf2612OO4 000731 (XXX) lherapy 512 165.00 ~~~~ Ccrtirued Ca1tirued O:J1tir1.JEd Continued O~'d vvv9-EvlL ~L epu!l ev~: ~ ~ 90 W 6n'v' , f\i castro ai ropractic ai rie, 12241-blly Pike Carlisle, PA 17013 (117)243-6396 ~ ~ FEgira \.t'\enzel 9 Pi my Colrt Gardrers, PA 17324 ~ I Date Docurrent Description Case Nurrber ATDu1t 10'27/20)4 cm731<XOO Est pt afice Visit 15 Mn. 572 65.00 10'27/~ cm73100XJ l1"lerr:py 512 165.00 10'28'2004 000731CXXX> Est Pt CXfice Visit 15 Mn. 572 65.00 10'28'20)4 <ID731cax> l1"lerr:py 572 165.00 11/1/2004 cro731 CXXX) Est pt afice Visit 15 Mn 5T2 65.00 11/1/4XJ4 OOJ731cxro 1l1erc:py fi12 165.00 11/3'2004 00)731 CXXXJ Est Pt O1ice Visit 15 Mn. 572 65.00 11/2/2fYJ4 caJ731 CXXXJ 1l1erc:py 572 165.00 11/41ZX)4 OOJ73100Xl Est Pt afire Visit 15 Mn. 572 65.00 11/41ZXJ4 mJ731axxJ l1"lerr:py 512 165.00 11/5'ZXJ4 OOJ731a:m Est Pt. Office Visit 15 Mn. 572 65.00 11/5120.14 (R)731CX:X:O l1"lerr:py Sl2 165.00 S- 11/5'ZXJ4 OOJ73100Xl Est Pt Ofice Visit 15 Mn 572 65.00 11/5'2004 000731 ()(XX) 1l1erc:py 572 165.00 - Est Pt Office Visit 15 Mn 512 -.... 11/17/2004 000731 ()(XX) 65.00 ~ 11/17f2OO:1. 00:>731??oo 1l1erc:py 572 165.00 11/1 B'2C04 000731CXXXJ Est PI OIice Visit 15 Mn. Sl2 65.00 11/18'2CXJ4 000731 CXXJ) 1l1erc:py 572 165. (X) 3'29'2005 00073100X> Est PI: afice Visit 15 Mn 572 65.00 :Y29'2005 CXD731aDJ 1l1erc:py 512 165.00 41412(X)5 c.m731aXXJ Est Pt afice Visit 15 Mn. 572 65.00 4141:;nJ5 cm731CXlXJ l1"lerr:py 512 ZD.oo ~~~~ Contirued Ord:irued . Qrtjr1JErl Continued ~ ~'d P17V9-~VGL ~L epu!l ev~:t~ 90 ~O Bnv . I' . Ncastro Oiropractic Oine, 1224 f-blly Pike Cartisle, PA 17013 (717)243-6396 ~ ~ Regina V\enzel 9 Pirey Gout <?aUras, PA 17324 ~ I Date Docu1Bnt Description Case NUTber An:Junt 41412aJ5 CBl731CXXXJ ~ (fractioo 5i2. 40.00 4112120J5 OOJ731CXOO Est pt Ofice Visit 15 Mn 512 65.00 4112Jan5 06J73100X) l11er'ap{ 512 165.00 4/121~ OOJ73100Xl Marip 34 Regons 512 70.00 411412C05 OOJ731cxxx) Est Pt OIice Visit 15 Mn. 512 65.00 4114120J5 OOJ7310c00 l11er'ap{ 572 165.00 4114/20)5 caJ7310c00 Mcnp 34 Regcrs 512 70. 00 4119'2Xl5 <HJ731<XXJO Est Pt afioe Visit 512 55.00 4119'2CXl5 <m731cxxx) l11er'ap{ 572 165.00 4119'2XX5 000731<XXXJ Marip 34 Regicrs 572 70. 00 5'31Zn5 cm73100:x> Est Pt afire Visit 15 Mn. 512 65. 00 S3'2005 aD731 CXXXJ Therapy 512 165.00 51312OCJ5 ca:>731COOO IVB1ip 34 Pcgons 512 70.00 'S/5'2aJ5 00)8()1<XlXJ Mcrip 34 R:gcns 512 70.00 . 5/5'2005 0ED601 CXXXJ Therapy 572 220.00 fJfYz:a; ~1cxxx) Est pt Oftioe Visit 15 Mn 572 65.00 ) 5I9'.2(X)5 caB)1 (XXX) Manip 1~2 R:gioos fil2 50.00 5'9'20)5 oo:uJ1cx:xxJ Therapy 572 220.00 5I9I2!r15 Off8)1CXXX> Est Pt Office Visit 15 Mn 512 65.00 5117/20J5 CHJB01COC() Manip 5+ Regcrs 572 80.00 S17/'2f.XIJ (llB)1(XXX) l11er'ap{ 512 220.00 f/17/2IXY3 (H)OO1CXXXJ Est pt afice Visit 15 Mn. 512 65.00 -- ~~~~ Cortirued Ccrtirua::J Conti rued Continued G~'d v17t1g-~VGL ~L spun ev~: ~ ~ 90 ~O BnV l.. Ncastro en ropradic Cline, 1224 J-blfy Pike Cariis[e, PA 17013 (717)243-6396 ~ ~ Fegira V\enzel 9 PireyCout Gardrers, PA 17324 ~ 1 Date IJocurrent Desaiption Case NurrIJer Amunl f/19'2Xl5 ClD301(xxx) rvaip 5+ ~ 572 80.00 fi19'2Xl5 a:n301()(lX) ~ 572 220.00 EJ19'ZD5 OOB:>10CXJ0 Est pt Offioo Visit 15 Mn. 572 65.00 f/2312D5 <:6J801CXXX> IVl:Iip 5+ R3gions S12 00.00 f/23/ZXJ5 000B01CX:OO lte"apy 572 Z:.(I.oo fi261'2fJJ5 OODJ1OXXJ Marip 1-2 Rsgicrs 572 00.00 fi26I'ZX15 00J0010CXX) lte"apy 572 2a:>.OO 5'261:ax:6 001801 (XXX) Est pt afice Visit 15 Mn. 572 65.00 J 6/1&405 00JB01 oo:x> lV1a1ip 5+ R3gions 572 80.00 ... fl1&':Dl5 00J801CXXXJ ~ 512 220.00 J '" 611 EY2J05 0&l801 (XXX) Est Pt Cftioo Visit 15 Mn. 512 65.00 ) f:JZ7/2fX15 oo:ro1 CXXXl l\I1a'1ip 5+ R::gons 572 80.00 &'Zl/2fXJ5 00:E01lXXXJ ~ 572 Z20.00 flZlI'2SXb CID001 cx:xx> Est pt Cftice Visit 15 Mn 572 65.00 7/1212!Y:f5 OOBJ1a:ro Marip 5+ RagiCl1S 512 00.00 7/12J2frEJ CBB>1(xxx) 8ectric MJscIe stirn 572 40.00 7/1212f.X15 an:D10c00 ~ 572 220.00 S'412(X)5 00l30100X> ~ 572 220.00 8'412005 <Hm1000J Est Pt mea Visit 15 Mn. 572 65.00 8'9'2JnJ cmao1(XD) rva'ip 34 Regions 572 70.00 f!/~2CX15 000801CXXO ~ 572 220.00 819'2C05 anc301<XXXl Neuro Re- EdJcaI:ion 572 55.00 ~~~~ Ortirue::l Qrtirue::l . CbIl1irue::l . Continued ~~'d vvvg-~VGL LL epU!l 8VL: L ~ 90 W Bn\f . Ncastro Oiropracti e airier 1224 J-blly Pike Cartisle, PA 17013 (717)243-6396 ~ ~ ;::= ~~ Gerdras. PA 17324 1 Dale DocuTent Description Case Nurrber Armunt 8'~2005 aD301<DX> Est pt Olfice Visit 15 Mn. 572 65-00 8'Z3I2Xl5 00BJ10c00 lVIcI1ip 34 Regcrs 572 70.00 8/'2312JXJ5 0000010c00 Ttleri:pJ 572 275.00 &'23'ZUi oa1ID1(xxx) Est pt Office Visit 15 Mn. 572 65.00 Bf29'2n5 00)8()1 (XXX) Marip 34 Regicns 512 70.00 8"2S'~ cmeD1COOO Therapy 572 275.00 9'6'20:>5 ()ElB)1 CXXX) IVIanip 5+ Regiors 572 00.00 9'&2005 0aJ801 CXlX) Therapy ITrocticn 512 40.00 g612(X)5 oo:m1 (XXX) Therapy Sl2 220.00 9'&'2.005 CBBJ1 (XX)) Est Pt Olice Visit 15 IVin 572 65.00 i J 9'2l'2OO5 oa:m1CXXXJ Manip 34 Regions Sl2 70.00 ..... S'2O'Affi cam1CXXXl Therapy 572 22).00 ~ 9'~2(X)5 OOB>1cxxx) Est pt Ofice Visit 15 Mn 5!2 65.00 gZl/2!X:t5 00J001(xxx) ~p 5+ R3gialS 572 80.00 91Zlr2JJ:Y:> 000801CXXXJ Therapy 572 220.00 gZl/2.fUS 0EDlJ1ODJ Massage 572 50.00 ~ZlI2fJJ5 0aJ001<XXX> Est Pt Office VISit 15 Mn. 512 65. 00 9'29'2005 mB)1CXXX) Marip 34 Regioos 512 70.00 9'29~ 000901lXXXJ Therapy 512 zaJ.OO !:Y29'2005 001301 axxJ Est Pt afice Visit 15 Mn '5l2 65.00 8'10'2Ol5 00J801CXXXJ Ins Payrralt 572 0.00 9'&2C05 CHm1<XXXJ Manip 5+ R3gicns 572 00.00 -~- Continued Bal ance Due vL'd 1717V9-EVlL LL epU!l 1317 ~: ~ ~ 90 W 6n'v' l't J Ncas1ro en ropractic Qi ric, 1224 f-blJy Pike Carlisle, PA 17013 (717)243-6396 ~ Regira V\enzel 9 Pirey Cout Gadrers, PA17324 ~~ I Date Doct.rrent Description Case NLDTber ATount 9'6'2CD5 Cff8J100:0 ll1ercpy ffrcd:ioo 572 40.00 9'6'2005 0E:D001CXXX> 1heJcpJ 512 220.00 9'6'2005 cx:0301 (XXX) Est Pt mea Visit 15 Mn. 512 65.00 9'6'2005 CED801 (XXX) Ins Payrrent 572 0.00 7/1f!f2IXJ5 00J801oa:xJ Ins Payrrent 572 0.00 elZl/2f:JJ.5 000801<XXXl Ins Payrrent 572 OJ)) 71&2fnj CBJ801 CXXXJ Ins Payrrent 572 0.00 fi'ZJI2fX:fj CHm1 (XXX) Ins Payrrent 572 0.00 41D'2CXl5 cam100:0 Ins Payrrent 572 0.00 7/17/'2f1J4 caB)100JJ Ins Payrrent 512 -178.44 7/21312004 OOB>1CXXX> Ins Payrrent 572 -83.38 2J15'2CD5 CBm100lJ Ins Payrrent 572 -3.4CXl20 .. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, CIVIL DIVISION Plaintiff, NO. 05-3535 vs. STATE FARM INSURANCE COMPANIES, Defendant. ORDER OF COURT AND NOW, to-wit, this _ day of , 2006, it is hereby ORDERED, ADJUDGED and DECREED that Defendant's Motion to Compel Discovery (Second) is GRANTED and Plaintiff, Regina G. Wenzel, shall produce copies of her records from Dr. Nicastro and/or Nicastro Chiropractic from March 5, 2005 through October 2005 within 10 (ten) days from the date of this Order, or shall suffer appropriate sanctions. BY THE COURT, J. r~ o ., .-1 --r ~ ~ )' .-, .",. -...,..,;; REGINA G. WENZEL, Plaintiff v. STATE FARM INSURANCE COMPANIES, Defendant , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW NO. 05-3535 CIVIL TERM ORDER OF COURT AND NOW, this 20th day of November, 2006, upon consideration of Defendant's Motion To Compel Discovery (Second), a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. Fred H. Hait, Esq. River Chase Office Center 4431 North Front Street Harrisburg, P A 17110-1778 Attorney for Plaintiff Daniel L. Rivetti, Esq. Mark A. Martini, Esq. Robb, Leonard, Mulvihill Firm 2300 One Mellon Center Pittsburgh, P A 15219 Attorney for Defendants :rc BY THE COURT, J. J. ) 1/-)) -0':' ~~~~ PIs -.V,in.:> I" -'.(l 1.1\1 00':) ,'J 17f,t1U anpl ..." (.. .,1 ~ il ,JiJ W .,I :10 ... IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, Plaintiff Civil Action-Law Vs. No. 05-3535 STATE FARM INSURANCE COMPANIES Defendant PLAINTIFF'S RESPONSE TO RULE TO SHOW CAUSE In response to the Rule to Show Cause issued 11/20/06 on Defendant's Motion to Compel Discovery (Second) Plaintiff asserts: 1. Copies of the Nicastro Chiropractic records that were the subject of Defendant's Motion were furnished to counsel for Defendant by First Class Mail sent from Harrisburg, PA on 12/8/06. 2. Defendant has not been prejudiced by any delay in receiving the records in question because no arbitration or trial proceedings have yet been scheduled. WHEREFORE, Plaintiff prays the Court to dismiss Defendant's Motion to Compel due to its being moot. Respectfully submitted, Smigel, Anderson & Sacks, LLP Attorneys for Plaintiff ~~ Fred H. Hait, ID # 34331 River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 234-3611 (fax) fhait@sasllp.com AFFIDAVIT I, the undersigned, counsel of record for the Plaintiff in this matter, hereby certify that I have personal knowledge of all facts set forth in the foregoing Response to Rule to Show Cause, and that such facts are true and correct. I acknowledge that any false statements herein are made subject to the penalties of 18 Pa. C. S. S 4904, relating to unsworn falsification to authorities. Date: / ~~ 3/cJC CERTIFICATE OF SERVICE I hereby certify that concurrent with filing the foregoing Response to Rule to Show Cause I am serving a copy of same upon counsel of record for Defendant by First Class Mail, addressed as follows: Date: I ~3PO --- ~ ~:"; . ...../ ~-' '/_-- Fred H. Hait, 10 # 34331 Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 234-3611 (fax) fhait@sasllp.com II,' ~ = = cr' e? 1'1 C' ~ --l :L-n nlp -:Jrr. "~'r t,,_.I1 'j ,~~ )> :51 w ::;>.;.-. -+" -.;;{;:.. Cf? w .. .. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, Plaintiff Civil Action-Law Vs. 'I No. 05-3535 STATE FARM INSURANCE COMP~NIES Defendant '~ TO THE PROTHONOTARY PRA CIPE FOR DISCONTINUANCE \ Please mark this matter as ha~ing been discontinued at the request of Plaintiff. \ \ \ Respectfully submitted, Fred H. Hait, 10 # 34331 Attorney for Plaintiff River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 234-3611 (fax) fhait@sasIlD.com ~ ~ IN THE COURT OF COMM N PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINA G. WENZEL, Plaintiff Civil Action-Law Vs. \ STATE FARM INSURANCE COMP4NIES Defendant No. 05-3535 CERTIFICATE OF SERVICE I certify that concu rent with filing the foregoing Praecipe For Discontinuance I am servin a copy of same upon counsel of record for the Defendant by First CIa s Mail, addressed as follows: Daniel L. Rivetti, Esq. Mark A. Martini, Esq. Robb, Leonard & Mulvihill 2300 One Mellon Center Pittsburgh, PA 15219 Date 3/~/o7 ~~ Fred H. Hait ID # 34331 Attorney for Plaintiff Smigel, Anderson & Sacks, LLP River Chase Office Center 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 234-3611 (fax) fhait@sasllp.com () c: :?"" :,:>, IJLT;J flirT' -:;;.0 .-;~ t~) f: -<:. ~ };<~-- :.'- ( ; PC':: ~ -< f'oo,) c:::::l = -..I :J: )> ;;:0 N ~ ~pg -om .09 (~6 .....Lr.; I-n ~~o -<-m o ~ ~~ ::> :l: '-D .. w U1