Palmer v. Liberty Mutual Insurance Company et al

Filing 143

ORDER denying Plaintiff's 116 Motion for Partial Summary Judgment; denying Defendant's 122 Motion for Summary Judgment. Signed by District Judge Keith Starrett on July 13, 2011 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION

ULMER L. (“U. L.”) PALMER

PLAINTIFF

VERSUS

CIVIL ACTION NO. 2:10cv73KS-MTP

LIBERTY MUTUAL INSURANCE COMPANY

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the court on a Motion for Partial Summary Judgment [#116]
filed on behalf of the plaintiff, Ulmer L. Palmer and on a Motion for Summary Judgment
or in the Alternative for Partial Summary Judgment filed on behalf of defendant Liberty
Mutual Insurance Company [#122]. The court, having reviewed the motions, the
responses, the pleadings and exhibits on file and being otherwise fully advised in the
premises finds that the motions are not well taken and should be denied. The court
specifically finds as follows:

FACTUAL BACKGROUND
This is an action for punitive and other extra-contractual damages arising out of
the alleged bad faith denial or delay in payment of worker’s compensation benefits to
the plaintiff, Ulmer L. Palmer (“Palmer”), a Mississippi citizen. Palmer’s employer,
former defendant G.B. Boots Smith Corporation (“Smith”), is a Mississippi resident
corporation. Defendant Liberty Mutual Insurance Company ("Liberty Mutual") is a nonresident of Mississippi.

On September 20, 2005, Palmer suffered multiple injuries when he was thrown
from a man-lift that he was attempting to load onto a trailer in the course and scope of
his employment with Smith. Smith had procured a valid policy of worker’s
compensation insurance from Liberty Mutual that was in effect at the time of Palmer’s
accident. Palmer’s injury was timely reported to his employer and to Liberty Mutual,
who adjusted and managed the claim. Approximately six months after the work
accident, on March 3, 2006, Liberty Mutual filed an Employer’s Notice of Controversion
due to its alleged inability to obtain medical records from one of Palmer’s treating
physicians, a Dr. Schwartz. Palmer also filed a Petition to Controvert on May 17, 2006.
The workers’ compensation claim was ultimately compromised and settled in January
2010.
Thereafter, on February 11, 2010, Palmer initiated the present action in the
Circuit Court for the Second Judicial District of Jones County, Mississippi. The
gravamen of Palmer’s state court complaint was that Liberty Mutual and Smith failed to
pay disability benefits due him under the Mississippi Workers’ Compensation Act in a
timely manner. Palmer asserted claims for bad faith and breach of fiduciary duty
generally against both defendants. Liberty Mutual removed the case and Palmer
moved to remand twice. The court denied both motions to remand and dismissed
Smith. The case proceeded through discovery and is now before the court on the
present motions.
Palmer asserts that through a detailed analysis of the law and facts, he is entitled
to partial summary judgment on all issues of liability against Liberty Mutual and that this
matter should then proceed exclusively on the issues of compensatory and punitive
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damages. Liberty Mutual contends that Palmer has not pled a claim – and, indeed, has
no claim – for any alleged delay in receiving medical treatment. Rather, Liberty Mutual
argues that the claims in this action revolve entirely around a generic allegation that
Liberty Mutual failed “to timely pay or reimburse to the Plaintiff very large medical
expenses, very large travel expenses for medical care and some temporary disability
payments.” Thus, under the reasoning of Liberty Mutual, Palmer’s bad faith claims
cannot survive summary judgment.

STANDARD OF REVIEW
The Federal Rules of Civil Procedure, Rule 56(c) authorizes summary judgment
where "the pleadings, the discovery and disclosure materials on file, and any affidavits,
show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law." FRCP 56(c); and see Celotex Corporation v.
Catrett, 477 U.S. 317, 322, 91 L.Ed.2d 265, 106 S.Ct. 2548 (1986). The existence of a
material question of fact is itself a question of law that the district court is bound to
consider before granting summary judgment. John v. State of La. (Bd. of T. for State C.
& U.), 757 F.2d 698, 712 (5th Cir. 1985).
A Judge's function at the summary judgment stage is not himself to weigh the
evidence and determine the truth of the matter, but to determine whether there is a
genuine issue for trial. There is no issue for trial unless there is sufficient evidence
favoring the non-moving party for a jury to return a verdict for that party. If the evidence
is merely colorable, or is not significantly probative, summary judgment is appropriate.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L.Ed.2d 202, 106 S.Ct. 2505 (1986).
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Although Rule 56 is peculiarly adapted to the disposition of legal questions, it is
not limited to that role. Professional Managers, Inc. v. Fawer, Brian, Hardy & Zatzkis,
799 F.2d 218, 222 (5th Cir. 1986). "The mere existence of a disputed factual issue,
therefore, does not foreclose summary judgment. The dispute must be genuine, and
the facts must be material." Id. "With regard to 'materiality', only those disputes over
facts that might affect the outcome of the lawsuit under the governing substantive law
will preclude summary judgment." Phillips Oil Company v. OKC Corporation, 812 F.2d
265, 272 (5th Cir. 1987). Where "the summary judgment evidence establishes that one
of the essential elements of the plaintiff's cause of action does not exist as a matter of
law, . . . all other contested issues of fact are rendered immaterial. See Celotex, 477
U.S. at 323, 106 S.Ct at 2552." Topalian v. Ehrman, 954 F.2d 1125, 1138 (5th Cir.
1992). In making its determinations of fact on a motion for summary judgment, the
Court must view the evidence submitted by the parties in a light most favorable to the
non-moving party. McPherson v. Rankin, 736 F.2d 175, 178 (5th Cir. 1984).
The moving party has the duty to demonstrate the lack of a genuine issue of
material fact and the appropriateness of judgment as a matter of law to prevail on his
motion. Union Planters Nat. Leasing v. Woods, 687 F.2d 117 (5th Cir. 1982). The
movant accomplishes this by informing the court of the basis of its motion, and by
identifying portions of the record which highlight the absence of genuine factual issues.
Topalian, 954 F.2d at 1131.
"Rule 56 contemplates a shifting burden: the nonmovant is under no obligation
to respond unless the movant discharges [its] initial burden of demonstrating
[entitlement to summary judgment]." John, 757 F.2d at 708. "Summary judgment
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cannot be supported solely on the ground that [plaintiff] failed to respond to defendants'
motion for summary judgment," even in light of a Local Rule of the court mandating
such for failure to respond to an opposed motion. Id. at 709.
However, once a properly supported motion for summary judgment is presented,
the nonmoving party must rebut with "significant probative" evidence. Ferguson v.
National Broadcasting Co., Inc., 584 F.2d 111, 114 (5th Cir. 1978). In other words, "the
nonmoving litigant is required to bring forward 'significant probative evidence'
demonstrating the existence of a triable issue of fact." In Re Municipal Bond Reporting
Antitrust Lit. , 672 F.2d 436, 440 (5th Cir. 1982). To defend against a proper summary
judgment motion, one may not rely on mere denial of material facts nor on unsworn
allegations in the pleadings or arguments and assertions in briefs or legal memoranda.
The nonmoving party's response, by affidavit or otherwise, must set forth specific facts
showing that there is a genuine issue for trial. Rule 56(e), Fed.R.Civ.P. See also,
Union Planters Nat. Leasing v. Woods, 687 F.2d at 119.
While generally "’[t]he burden to discover a genuine issue of fact is not on [the]
court,’ (Topalian 954 F.2d at 1137), ‘Rule 56 does not distinguish between documents
merely filed and those singled out by counsel for special attention-the court must
consider both before granting a summary judgment.’" John, 757 F.2d at 712 (quoting
Keiser v. Coliseum Properties, Inc., 614 F.2d 406, 410 (5th Cir. 1980)).

ANALYSIS AND DISCUSSION
Palmer argues that the foundation for the relief sought herein can be summarized
by taking four groups of deposition excerpts (three from the Defendant’s sole expert;
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one from the Defendant’s claims adjuster) and placing them side by side. According to
Palmer, these excerpts should be read in the context of Palmer’s contention that certain
critical portions of his workers’ compensation claim were denied for an extended period
of time and then illegitimately delayed thereafter. Palmer contends that Liberty Mutual,
through its hired expert, is now manufacturing reasons for certain delays, despite such
rationales never being a part of the claims file or the claim’s adjuster’s mental processes
expressed in her deposition.
Liberty Mutual argues that although Palmer takes issue with a handful of claims,
over the course of the approximate four years following the accident, Liberty Mutual
paid $147,479.00 to more than thirty different medical providers on Palmer’s behalf
without dispute. These amounts do not include the lump sum payment of Palmer’s
disability claim following the ALJ’s March 25, 2008 order or the ultimate settlement of
the medical portion of Palmer’s claim.
Bad faith cases are usually factually intense., thus the court will recount the facts
as asserted by the parties in some detail. The evidence in this case indicates that
Palmer was injured in a work-place accident on September 20, 2005, when the man-lift
he was operating malfunctioned and threw him approximately forty feet. Palmer landed
on his left side but was not knocked unconscious. He got up and walked about thirty
yards to his truck, then drove himself approximately one-half to three-quarters of a mile
to a friend’s house to call an ambulance. The ambulance took him to Oktibbeha County
Hospital where Dr. James Thriffley, the emergency room doctor, ordered a battery of
tests, which indicated Palmer had suffered a “right transverse process at L2 and L3,” a
“comminuted fracture of the distal radius,” and a possible rotator cuff tear. Dr. Thriffley
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operated on Palmer’s left wrist and discharged him the next day. Palmer returned to
work on October 3, 2005.
Palmer’s employer, Smith, timely filed a “Workers Compensation – First Report
of Injury or Illness” with the Mississippi Worker’s Compensation Commission (“MWCC”)
and notified Liberty Mutual of the accident via facsimile on October 5, 2005. The next
day, on October 6, 2005, Liberty Mutual contacted both Palmer and Smith, the
employer, to discuss the accident. Although he apparently had seen several doctors
after the accident, Palmer allegedly indicated to Liberty Mutual that he had only seen
the “emergency room doctor” (Dr. Thriffley) and Dr. Weaver (to whom Dr. Thriffley
referred him), and was scheduled to see an eye doctor. Palmer allegedly denied seeing
any other doctor during this contact with Liberty Mutual. He indicated that his only
injuries were a broken left wrist, broken eye sockets, two broken vertebra, and bruising
to his left shoulder, the left side of his face and his gallbladder. He denied any other
injuries and confirmed (as his employer had indicated) that he had returned to work.
Liberty Mutual accepted the accident as compensable and on October 7, 2005,
the day after speaking with Palmer and his employer. Tiffany Derichsweiler (now Tiffany
Kister), the Liberty Mutual adjuster assigned to the file, established an action plan,
including determining what type of ongoing treatment was necessary, verifying that
Palmer’s employer was sending all medical bills to Liberty Mutual for payment, and
setting reserves.
Liberty Mutual began adjusting the claim and, among other things: assigned a
nurse to attend one of Palmer’s medical appointments to gain an understanding of his
treatment and help Palmer understand Liberty Mutual’s role, assigned a nurse to help
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obtain medical information, assisted in setting up appointments, consulted with an
in-house doctor to understand Palmer’s treatment, and began to timely pay Palmer’s
medical bills upon their receipt.
As stated above, approximately six months after the work accident, on March 3,
2006, Liberty Mutual filed an Employer’s Notice of Controversion due to its alleged
inability to obtain medical records and information from Dr. Schwartz who allegedly was
also treating Palmer. The Notice of Controversion specifically stated that Dr. Thriffley’s
treatment – for which evidence had been timely and properly submitted to Liberty
Mutual, unlike Dr. Schwartz’s treatment – was causally related and that his claims were
not being denied. Apparently, Liberty Mutual continued to pay medical bills it received
from other providers, both before and after filing the Employer’s Notice of
Controversion, that properly submitted their claims.
On September 26, 2005, Dr. Wesley Girod (a Hattiesburg surgeon) began
treating Palmer for his multiple organ trauma, ultimately adding diagnoses of a left facial
fracture, possibly fractured ribs causing chest pain and shortness of breath, complete
occlusion of the right ICA and 50% stenosis of the left subclavian artery. Dr. Girod
performed a right femoral-popliteal bypass in March, 2007.
Subsequent to his initial wrist surgery and return home, Dr. Michael Weaver (of
the Hattiesburg Clinic) took over treatment of Palmer’s left wrist. Dr. Weaver performed
the surgical removal of the pins in Palmer’s wrist on October 31, 2005. Upon referral
from Dr. Weaver for confusion and memory problems, Dr. Ronald Schwartz (of the
Hattiesburg Clinic) started seeing Palmer on November 7, 2005, Dr. Schwartz allegedly
diagnosed Palmer with post-concussive syndrome and related his frontal executive
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difficulties to the closed head trauma of the work injury. According to Palmer, an MRI
brain scan read on November 22, 2005, showed ischemic changes involving the right
occipital cortex and left posterior parietal cortex, abnormal flow in the right carotid, and
minor scattered border zone changes in the right MCA-ACA distribution. An MRI
intracranial and extracranial study performed on December 21, 2005, showed an
occluded right internal carotid artery and 50% stenosis of the left external carotid artery.
Dr. Schwartz added diagnoses of a right occipital injury, left posterior parietal injury,
right carotid occlusion, and C5/C6/C7 radiculopathy, in addition to other diagnoses by
prior doctors, and stated that Palmer’s vascular occlusion problems were most likely
related to his head trauma. On March 9, 2006, Dr. Schwartz gave the opinion that
Palmer would not be able to pursue gainful employment at that time.
The records from the March 9, 2006 visit, however, were allegedly not provided
to Liberty Mutual, and Dr. Schwartz continued in his refusal to respond to inquiries
relating to the causal connection of his treatment to the work accident, according to
Liberty Mutual. As such, disability payments were not started on March 9, 2006. The
following month, however, on April 27, 2006, Palmer underwent a carpal tunnel release
surgery by Dr. Thriffley. Liberty Mutual began temporary total disability benefit
payments as of April 27, 2006, and continued them until Dr. Thriffley released Palmer to
return to work.
On April 17, 2006, Dr. Christopher Cooley (of the Hattiesburg Clinic) evaluated
Palmer’s vision at Dr. Schwartz’s request and diagnosed him with visual field defect,
moderate nonproliferative diabetic neuropathy, and senile cataracts, and later added
diagnoses of status post closed head injury with possible either traumatic optic
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neuropathy or changes in visual field due to occipital lobe damage, and stated that his
problems were not due to cataracts. On May 16, 2006, Dr. Andrew Dickson,
neuropsychologist from the Hattiesburg Clinic, evaluated Palmer at Dr. Schwartz’s
request. He diagnosed Palmer with agitated depression, impairment of complex
attention, and borderline working memory, said that the current result were not
predictive of a return to work, and suggested that Palmer apply for disability. Dr.
Schwartz continued to treat Mr. Palmer for depression, visual impairment and
inattention problems.
Palmer filed a Petition to Controvert on May 17, 2006. The action then
proceeded through the MWCC with both parties filing motions. Palmer underwent an
independent medical exam (“IME”), the results of which indicated that a number of the
conditions Palmer were being treated for were not related to the work accident. On
March 25, 2008, the Administrative Law Judge determined that Palmer was
permanently totally disabled from March 9, 2006 forward. Liberty argues that, notably,
Palmer had never argued he was permanently totally disabled. Nevertheless, as a
result of the ruling, Liberty Mutual paid a lump sum totaling $130,299.02 and the parties
thereafter settled the medical portion of Palmer’s claim for an additional $77,364.00.
The Mississippi Workers' Compensation Law provides that workers'
compensation benefits are the exclusive remedy available to an employee that is injured
in the course of his employment. Miss. Code Ann. §71-3-9. However ,the Mississippi
Supreme Court recognized the viability of a bad faith claim against a workers’
compensation carrier for intentional torts in Southern Farm Bureau Casualty Ins. Co. v.
Holland, 469 So. 2d 55 (Miss. 1984). The Court stated:
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We hold that the majority view permitting action for an independent tort
against an insurance carrier in workers’ compensation cases is in line with
the thrust of our recent decisions recognizing that punitive damages are
appropriate where an insurance company intentionally and in bad faith
refuses payment of a legitimate claim in order to prevent insurer from
enforcing inadequate settlement. (Internal citations omitted).
469 So.2d at 58. Of course, one alleging such an action must allege and prove the
recognized elements of such a claim in order to be entitled to punitive damages.
The law is well settled that the insured has the burden of
establishing a claim for bad faith denial of an insurance claim. The
insured must show that the insurer denied the claim [or unreasonably
delayed it] (1) without an arguable or legitimate basis, either in fact or law,
and (2) with malice or gross negligence and disregard of the insured’s
rights. The insurer need only show that it had reasonable justifications,
either in fact or in law, to deny payment. Moreover, whether an insurer
had an arguable reason to deny an insurance claim is an issue of law for
the court.
In deciding whether an insurer had an arguable basis to deny
insurance liability, Mississippi courts apply the directed verdict test: Unless
the insurer would be entitled to a directed verdict on the underlying
insurance claim, an arguable reason to deny an insurance claim exists in
most cases.
U.S. Fidelity and Guaranty Co. v. Wigginton, 964 F.2d 487, 492 (5th Cir. 1992). See
also McLendon v. Wal-Mart Stores, Inc., 521 F. Supp.2d 561, 565 (S.D. Miss. 2007);
Life & Cas. Ins. Co. v. Bristow, 529 So. 2d , 620, 622 (Miss. 1988); §11-1-65 (1)(a).
In this case, Palmer alleges that Liberty Mutual, in bad faith, denied or delayed
payment of benefits under a workers’ compensation policy of insurance, and that “[s]aid
bad faith and breach of fiduciary duty was attended by an intentional wrong, insult,
abuse or gross negligence, all with total callous disregard for the Plaintiff’s rights, which
amounts to an independent tort of bad faith.”
An insurer need only show that it had “reasonable justifications, either in fact or in

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law,” to deny or delay benefits. Richards v. Amerisure Ins. Co., 935 F. Supp. 863, 867
(S.D. Miss. 1996). “[T]he fact that an insurer’s decision to deny benefits may ultimately
turn out to be incorrect does not in and of itself warrant an award of punitive damages if
the decision was reached in good faith.” Liberty Mutual Ins. Co. v. McKneely, 862 So.
2d 530, 533 (Miss. 2004). In other words, “even when an insurance carrier denies or
delays payment of a valid claim, when based on a reasonable cause, bad faith will not
lie and no predicate exists for a punitive damages claim.” Tarver v. Colonial Life &
Accident Ins. Co., 2007 WL 551766, at *9 (S.D. Miss. Feb. 21, 2007) (citation omitted).
Whether there was an arguable reason to deny or delay a claim is an issue of law for
the court. Blue Cross & Blue Shield of Miss. v. Campbell, 466 So. 2d 833, 842 (Miss.
1985) (on pet. for reh’g).
The first category of claims are those that were delayed in payment. Liberty
Mutual argues that it is axiomatic that, in order for an insurer to delay or deny a claim in
bad faith, it must first have a claim. Liberty Mutual asserts that when a simple
comparison is made between the date the allegedly delayed claims were actually
received by Liberty Mutual and the date they were paid, it is apparent that there was no
delay relating to these bills. Liberty Mutual points out that in his discovery responses,
Palmer calculates the various alleged delays from the date the service was rendered,
not the date a claim was actually made. According to Liberty Mutual, the various
medical providers, however, did not submit claims on the date of service.
The actual dates the claims in this category were submitted are hotly disputed.
The court cannot make a legitimate determination as to the correctness of Liberty
Mutual’s argument in this regard. However, if the proof at trial shows that the requests
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for payment were not timely submitted, Liberty Mutual’s liability in a bad faith context is
seriously diminished. Simply put, if the claims were paid within a reasonable time of
their submission, regardless of the date of service, there can be no bad faith liability.
However, the evidence at trial will have to flesh out when these claims were incurred,
submitted and paid.
The second category of allegedly bad faith claims relates to allegedly improperly
submitted ones. As to this group, Liberty Mutual asserts that they are not “valid and
enforceable” or payable as a matter of Mississippi law. Mississippi Code §71-3-15 sets
out a number of conditions that must be met to render a claim for medical services
rendered payable. Section 71-3-15(1) states, in part:
[N]o claim for medical or surgical treatment shall be valid and enforceable,
as against such employer, unless within the twenty (20) days following the
first treatment the physician or provider giving such treatment shall furnish
to the employer, if self-insured, or its carrier, a preliminary report of such
injury and treatment, on a form or in a format approved by the
commission. Subsequent reports of such injury and treatment must be
submitted at least every thirty (30) days thereafter until such time as a final
report shall have been made.
Miss. Code §71-3-15(1). Subsection 3 of the statute further makes clear that:
No medical bill shall be paid to any doctor until all forms and reports
required by the commission have been filed.
Miss. Code §71-3-15(3). The language used in the statute is mandatory. See e.g., City
of Jackson v. Rebuild Am., Inc., 2011 Miss. App. LEXIS 195, *17-18 (Miss. Ct. App.
April 5, 2011) (citing McFadden v. State, 580 So.2d 1210, 1215 (Miss. 1991))(“The use
of words such as ‘shall’ and ‘will’ in a statute or regulation are considered mandatory in
nature.”). Thus, according to Liberty Mutual, the requisite forms and documentation
required by the Commission must be submitted and no claim is to be paid until they are
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provided.
Moreover, §71-3-15(3) provides the MWCC with the authority to establish a fee
schedule to further govern the payment of claims for medical services. In accordance
with that section, the MWCC adopted the “Official Mississippi Workers’ Compensation
Medical Fee Schedule” (“Fee Schedule”) which provides further detailed requirements
for medical claims.
The Fee Schedule defines a “properly submitted bill” to only include “a request by
a provider for payment of health care services submitted to a payer on the appropriate
forms with appropriate documentation and within the time frame established under the
guidelines of the medical fee schedule. MCCR, I. Gen. Prov., C. Definitions, ¶ 43. To
this end, the Fee Schedule provides:
Billing for provider services shall be submitted on the forms approved by
the Commission. Providers must bill outpatient services on the CMS-1500
(formerly HCFA-1500) form or forms B-9 and B-27 for professional
services, regardless of the sight of service. Health care facilities must bill
on the UB-92 form. Id. (MCCR, I. Gen. Prov., B. Payment, ¶ 4).
The attending physician must file the CMS-1500 form and appropriate
documentation within 20 days of rendering services on a newly diagnosed
work-related injury or illness. Subsequent billings must be submitted every
30 days with the appropriate medical records to substantiate the medical
necessity for continued services. Late billings will be subject to discounts,
not to exceed ten percent (10%) for each 30-day period or fraction thereof
beyond 60 days. Id. (MCCR, III. Reimbursement, A. Instructions to
Providers, ¶ 4).
All requests for payment of services rendered to the injured/ill worker must
be accompanied by the supporting documentation.” Id. (General
Guidelines, IV. Copies of Records and Reports, ¶ C).
The required documentation should reflect the patient’s current medical
status, response to treatment, and recommended plan of care. Required
documentation includes . . .” Id. (General Guidelines, IV. Copies of
Records and Reports, ¶ E).
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The Fee Schedule reiterates the limitations placed on a carrier by the statute.
Namely, the Fee Schedule provides that “an employer/payer shall not make a payment
for a service unless all required review activities pertaining to that services are
completed.” MCCR, III. Reimbursement, B. Instructions to Payers, ¶ 2. Liberty Murual
asserts that, obviously, until all the required documentation has been provided, a carrier
– like Liberty – cannot conduct all the required “review activities.”
Liberty Mutual and Palmer have itemized the claims that were not paid or were
delayed as improperly submitted. Liberty Mutual now contends that since this category
of claims were not submitted on the proper forms with the proper reports, they were not
“valid [or] enforceable.” As such, Liberty Mutual argues there was clearly a legitimate or
arguable reason for delaying their payment. Indeed, Liberty Mutual asserts there was
no right to payment and, thus, no “right” Liberty violated. Further, Liberty Mutual argues
it was statutorily instructed not to pay the claims meaning it did not commit some willful
or malicious wrong, it was simply following the law and, thus, did not act in bad faith.
Like the first category of delayed payments, the court is not so sure Liberty
Mutual is correct. Nor is the court convinced Palmer has the upper hand in the
argument. There appears to be a monumental conflict in the factual assertions about
when, or if, the claims were properly submitted on the proper forms in conformity with
the statute. That being said, the court is simply not in the position, at this time, to grant
summary judgment one way or the other on these claims.
The third group of claims are ones which were delayed because Liberty Mutual
contends there was no information that related the treatment and/or injury to the work
accident. Liberty Mutual admits that these claims were delayed until documentation
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was submitted linking the treatment/injury to the compensable work accident or there
was an adjudication that they were related.
It is true that the burden of proof in a worker’s compensation claim rests on the
claimant. The claimant must prove three things by a fair preponderance of the
evidence: (1) an accidental injury; (2) arising out of and in the course of employment;
and, (3) a causal connection between the injury and the death or claimed disability.
Guy v. B.C. Rogers Processors, Inc., 16 So.3d 29, 32-33 (Miss. Ct. App., 2009) (citing
Hedge v. Leggett & Platt, 641 So. 2d 9, 13 (Miss. 1994). The burden of proof only shifts
away from the claimant once the claimant has made out this prima facia case. Guy, 16
So. 3d at 33. In “all cases in which the causal connection would not be obvious to the
untrained layman, the claimant must prove the causal connection between the alleged
injury and the alleged disability by competent medical proof.” Sonford Products Corp. v.
Freels, 495 So. 2d 468, 471 (Miss. 1986); see also Cole v. Superior Coach Corp., 106
So. 2d 71, 72 (Miss. 1958) (medical causation must be established by expert testimony
“in all but the simple and routine cases”).
It is a bit disingenuous for Liberty Mutual to imply that it should be equated to that
of a “layman.” Indeed, Liberty Mutual is in the business of evaluating medical claims on
a daily basis. It has at its disposal nurses and doctors who routinely review medical
claims submitted. It also has the advantage of requesting an IME when needed, and
did so in this case.
Palmer contends that some of the claims denied or delayed by Liberty Mutual
were unquestionably related to his work injury. There are numerous factual disputes
regarding whether some of these claims were properly denied or delayed. Such factual
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disputes defeats any request for summary judgment by either party.
The final category of claims are ones labeled by Liberty Mutual as
“miscellaneous.” Included in this group are bills for surgery on Palmer’s wrist to remove
the pins which Liberty Mutual contends was “non-emergency” and was required to be
pre-certified. The denial or delay in payment of this claim in the face of the evidence
and the law is too factually intensive to allow summary judgment. The same is true of
the balance of these claims related to amounts paid directly by Palmer and the alleged
benefits due for temporary total disability. The court cannot rule as a matter of law that
the denial or delay in paying these claims was not bad faith. Thus, based on the record
presently before the court, summary judgment for either party is not warranted.
IT IS THEREFORE ORDERED AND ADJUDGED that Motion for Partial
Summary Judgment [#116] filed on behalf of the plaintiff, Ulmer L. Palmer and the
Motion for Summary Judgment or in the Alternative for Partial Summary Judgment filed
on behalf of defendant Liberty Mutual Insurance Company [#122] are both denied.
SO ORDERED AND ADJUDGED this the 13th day of July, 2011.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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