Zolman v. Pinnacol Assurance
2011 Colo. App. LEXIS 323
| Colo. Ct. App. | 2011Background
- Zolman sustained a December 3, 2004 back injury while working as a personal companion; Pinnacol was Horizon’s workers’ compensation carrier.
- Multiple doctors (Dr. Danahey, Dr. Reiss, Dr. Primack) treated her; MRI and X-rays showed a stable L5 compression fracture by mid-2005; Dr. Primack deemed she had reached MMI August 2005.
- Pinnacol filed a final admission of liability in August 2005 and later relied on a DIME (Dr. Kreiger) in December 2005, which confirmed MMI but set a higher impairment rating.
- In January 2006, Dr. Yamamoto recommended extensive post-MMI care; Zolman sought a hearing to change physicians and obtain post-MMI benefits, but the ALJ denied these requests in May 2007.
- Post-ALJ, Zolman pursued further medical opinions; Pinnacol denied ongoing treatments (e.g., epidural injections) and changes of physician, leading to a February 2008 bad-faith complaint.
- The district court granted Pinnacol summary judgment on August 5, 2009, holding Pinnacol’s conduct was fairly debatable; Zolman’s C.R.C.P. 59 motion was denied and this court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Post-MMI denial of care and physician change reasonable? | Zolman argues Pinnacol acted unreasonably after ALJ order. | Pinnacol relied on medical opinions and the ALJ’s credibility; decisions were fair debatability. | Yes; actions after May 3, 2007 were fairly debatable and not bad faith. |
| Whether post-MMI care denial constitute bad faith as a matter of law? | Zolman asserts Pinnacol’s denials show fault and disregard for her claim. | Insurer’s denials were supported by multiple physicians and the ALJ’s findings; reasonable under the circumstances. | Held to be fairly debatable; no triable issue of bad faith. |
| Whether Pinnacol acted unreasonably in denying a change of physician? | Zolman contends necessity of Yamamoto/other physician; Pinnacol refused. | Change requests were fairly debatable given ALJ findings and conflicting medical opinions. | Reasonable as a matter of law; no bad faith. |
| Did Pinnacol’s Gainsharing program render its handling of the claim unreasonable? | Gainsharing allegedly biased adjusters for profit. | Evidence insufficient to show bias; program specifics not established to affectZolman’s claim. | No; not shown to create material issue of reasonableness. |
| Rule 59 dismissal based on newly discovered evidence requires reversal? | New evidence shows Primack bias and reserves suggesting bad faith. | Evidence is insufficient to change result; not likely to alter outcome. | No abuse of discretion; denial affirmed. |
Key Cases Cited
- Savio, 706 P.2d 1258 (Colo. 1985) (insurer's bad faith requires a reasonable basis; fairly debatable standard)
- Brandon v. Sterling Colo. Beef Co., 827 P.2d 559 (Colo. App. 1991) (insurer's challenges of awards may be fair debatable if based on experts)
- Phan? Wait: Pham v. State Farm Mut. Auto. Ins. Co., 70 P.3d 567 (Colo. App. 2003) (fairly debatable claims support summary judgment for insurer)
- Brennan v. Farmers Alliance Mut. Ins. Co., 961 P.2d 550 (Colo. App. 1998) (reasonable insurer conduct reviewed for bad faith)
- Sandi? Sanderson v. Am. Family Mut. Ins. Co., 251 P.3d 1213 (Colo. 2010) (affirming summary judgment where insured failed to show bad faith)
- Bankr. Estate of Morris v. COPIC Ins. Co., 192 P.3d 519 (Colo. App. 2008) (reasonableness can be decided as a matter of law when no genuine issues exist)
- Am. Family Mut. Ins. Co. v. Allen, 102 P.3d 333 (Colo. 2004) (insurance contract special relationship; bad faith as tort)