Penalty granted for denial of lumbar injury after tricking Petitioner into seeing IME physician, denied for hip injury… no fees because Court did not adjudicate medical dispute… request for §2914 sanctions untimely and outside pretrial order… Sandler.

Mid Century Ins. accepted liability for Ambronine Berry’s 2/17 lumbar spine injury while shoveling snow at work which, based on an MRI, her treating physician Ned Wilson diagnosed as “discogenic spinal pain.” Then, using the false pretense that she was seeing a “specialist” for treatment, Mid Century had her undergo an IME with John Vallin and then asserted that it was not liable for her lumbar injury because she did not actually suffer a lumbar injury. Thereafter, she asserted that she suffered a separate hip injury in the job accident. After the 1st day of trial, Mid Century re-accepted liability for her lumbar injury and accepted liability for her hip injury. Berry asserts that she is entitled to a penalty and attorney fees.

Mid Century’s denial of liability for Berry’s lumbar injury from 7/22/17 to 4/24/19 was unreasonable because it obtained its IME under false pretenses — it “tricked” her into attending the IME with Vallin –and then used Vallin’s opinions as the sole basis to deny liability after having accepted it, and it refused to consider any evidence other than Vallin’s opinions. She is entitled to a 20% penalty on the medical benefits paid for the lumbar injury during that period.

Berry she did not prove that Mid Century unreasonably delayed acceptance of liability for her hip injury and therefore she is not entitled to a penalty on the medical benefits for her hip.

She is not entitled to her attorney fees because the Court did not adjudicate the dispute over her medical benefits.

For the first time in her closing argument Berry asserted that if she is not entitled to fees under §§ 611 or 612, the Court should award her fees under §2914, which provides that the Court shall sanction an attorney who files a pleading that is not well-grounded in fact or warranted by law. She argued that Mid Century’s attorney did not have a legal basis to assert throughout this litigation that it was not liable for her medical benefits. Her request is untimely because she did not move for sanctions shortly after Mid Century filed its Response when the issue was ripe. Moreover, her request for sanctions is outside the issues in the pretrial order.

Berry v. Mid Century Ins., 2018-4387, 5/29/20.

Miva VanEngen for Berry; Mark Buckwalter for Mid Century.