Thursday, July 10, 2008

Lawsuit Victory

I was the victim of a harassment lawsuit involving a case where I performed some medical-legal work on. The lawyer in effect was accusing me of "conspiring" with the insurance company on the case. Basically, he's trying to make it too expensive and troublesome for doctors to evaluate his client's cases in these situations. This time, however, he got burned. The suit got dismissed and he got the opportunity to pay my attorney for my trouble. I'm glad I didn't have to, since it was about $18000. He still can appeal, but it will just end up costing him more. That sure feels good.

THIS MATTER comes before me upon consideration of Defendant John A’s
Motion to Dismiss pursuant to C.R.C.P. 12(b)(5). I have reviewed the Motion, Response,
Reply, and the entire court file, and have considered applicable statutory and case law. I make
the following findings of fact, conclusions of law, and enter the following ORDER:
Motions to dismiss pursuant to C.R.C.P 12(b)(5) are looked upon with disfavor and
should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts
that would entitle him to relief. Verrier v. Colo. Dept. of Corr., 77 P.3d 873 (Colo. App. 2003);
Sweeney v. United Artists Theater Circuit, Inc., 119 P.3d 538 (Colo. App. 2005). The court may
consider documents referred to in the complaint, even if not attached to the complaint, without
converting the motion to a summary judgment. Yadon v. Lowry, 126 P.3d 332, 336 (Colo. App.
As a result of a work related injury, Plaintiff was receiving workers’ compensation
benefits from Pinnacol. Plaintiff desired an independent medical evaluation of his maximum
medical improvement, and Defendant John A was selected. Defendant A is
contracted to participate in Pinnacol’s SelectNet network, and is a medical advisor for Pinnacol.
Defendant A earns about 25% of his income in these capacities. When Plaintiff
learned of these ties, he requested protective relief, which was denied by an Administrative Law
Judge. After his evaluation, he appealed the determination, but was again denied by an ALJ. On
March 21, 2008, the Colorado Industrial Claim Appeals Office denied Plaintiff’s appeal, stating
it would not depart from prior holdings that a DIME physician who participates in SelectNet and
serves on a physician advisory panel for the insurer, but has no financial stake in the outcome of
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the independent evaluation before him, does not have a conflict of interest. Ruff v. City of
Manassa, W.C. No. 4-446-932 (ICAO March 21, 2008).
Both Colorado Statute and the Workers’ Compensation Rules of Procedure state that a
member of the medical review panel or someone acting as a consultant is immune from any civil
liability if that person acted in good faith. COLO. REV. STAT. § 8-43-502(6); 7 COLO. CODE REGS.
§ 1101-3. Colorado Courts have held that a physician-patient relationship does not exist between
an independent medical examiner and the person being examined. Martinez v. Lewis, 969 P.2d
213, 219 (Colo. 1998). The physician only has a duty to “exercise professional skill in
conducting the examination” not to cause harm to the person undergoing the exam. Greenberg
v. Perkins, 845 P.2d 530, 536 (Colo. 1993).
Plaintiff’s allegations of Defendant acting in bad faith arise entirely from his failure to
disclose his relationship with Pinnacol. Colorado statutes and the Workers’ Compensation Rules
of Procedure do require that a physician not examine a claimant if “the appearance of or an
actual conflict of interest exists.” COLO. REV. STAT. § 8-43-502(6); 7 COLO. CODE REGS. § 1101-
3. In this case, two Administrative Law Judges and the Industrial Claim Appeals Office
determined that Defendant A’s relationship with Pinnacol is not a conflict of interest;
therefore he was not required to disclose it. This is similar to other ICAO decisions. See, e.g.,
Benuishis v. Cheyenne Mountain Zoological Soc’y, W.C. No. 4-312-807 (ICAO April 17, 2005)
(holding a physician who received 1/3 of his income due to relationship with workers’
compensation insurer did not have a conflict of interest); Robertson v. Chicago Creek Roads,
Inc., W.C. No. 4-388-293 (ICAO April 3, 2001) (holding physician did not have a conflict of
interest because he had no financial stake in the outcome of the case). Courts should afford
deference to statutory construction of the Workers’ Compensation Act made by the director of
the agency. Rook v. Indus. Claim Appeals Office of Colo., 111 P.3d 549, 552 (Colo. Ct. App.
I will defer to the Workers’ Compensation Agency and its interpretation of a conflict of
interest. Because there are no facts showing Defendant A did not act in good faith in
his role as an independent medical examiner, he is covered by the immunity provisions of C.R.S.
§ 8-43-502(6) and Rule 11 of the W.C.R.P. Furthermore, since no bad faith claim can exist
when Defendant A was in compliance with Workers’ Compensation regulations,
Plaintiff cannot bring this suit in District Court. Instead, Plaintiff must exhaust all of his
Administrative Court remedies and appeal any adverse decision to the Colorado Court of
Appeals, as set forth in C.R.S. § 8/43-307.
A defendant is entitled to reasonable attorney’s fees if a tort suit is dismissed under Civil
Procedure Rule 12(b). COLO. REV. STAT. § 13-17-201. Award of attorney’s fees when the Court
grants 12(b) motion to dismiss in a tort action is mandatory. Kreft v. Adolph Coors Co., 170
P.3d 854, 859 (Colo. Ct. App. 2007).
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Defendant John A’s Motion to Dismiss is GRANTED and Plaintiff’s complaint
relating to Defendant A are DISMISSED with prejudice. Defendant John
A’s Request for Attorney’s Fees is GRANTED, as required by law. Defendant
A shall submit an affidavit of attorney’s fees and costs within 10 days of the date of
this order. Plaintiff may file a response within 5 days thereafter. If any party wants a hearing on
attorney’s fees and costs, they may request one in their submission
Done this 9th day of July, 2008.
Robert L. McGahey, Jr.
District Judge

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