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Kyeremeh v. United States

United States District Court, D. Colorado

June 5, 2014

LEVETTE KYEREMEH, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

FINDINGS, CONCLUSIONS, AND ORDER FOR JUDGMENT

RICHARD P. MATSCH, Senior Judge.

Early in the morning on May 14, 2010, Plaintiff Levette Kyeremeh (formerly Levette Clemons) was driving to work in her 2003 Ford Taurus. She was stopped at a traffic signal in the northbound lane of Quebec Street at I-70 in Denver, Colorado when a United States Postal Service ("USPS") truck slammed into the rear of her Taurus at a speed of 25 miles per hour. The impact pushed Kyeremeh's car forward into the middle of the intersection. Kyeremeh steered sharply to her right to avoid another vehicle. She was wearing a seat belt at the time.

Kyeremeh filed this civil action under the Federal Tort Claims Act ("FTCA") on December 21, 2011, seeking damages caused by the accident. Defendant has admitted that the USPS truck driver was negligent. The nature and extent of Kyeremeh's injuries caused by the collision and her present medical condition were the subject of a trial held on April 7-10, 2014.

Two particular aspects of this case warrant mention initially, as they inform the Court's findings in significant part. The first is Kyeremeh's personal history. She is a former cocaine addict and was convicted of felony drug possession in 2002. She worked as an independent contractor for a cleaning service company for low hourly pay and no benefits. With three children and a mother with Alzheimer's to support, Kyeremeh could not pay for auto insurance and had no health insurance until she received Medicaid sometime in late 2013 or early 2014. Because of Kyeremeh's inability to pay for health care, her course of treatment has been problematic.

The second is the manner in which the USPS dealt with Kyeremeh's administrative claim. The FTCA authorizes every federal agency to use arbitration or other alternative means of resolution to settle any tort claim against the United States. 28 U.S.C. § 2672. According to Department of Justice ("DOJ") guidance on how federal agencies should handle FTCA claims, the administrative claim review process is "intended to serve as an efficient[, ] effective forum for rapidly resolving tort claims with low costs to all participants." 28 C.F.R. § 14.6(a). The DOJ guidance seeks to "maximize the benefit achieved through the application of prompt, fair, and efficient techniques that achieve an informal resolution of administrative tort claims without burdening claimants or the agency." Id . "Whenever feasible, " the guidance states, "administrative claims should be resolved through informal discussions, negotiations, and settlements rather than through the use of any formal or structured process." Id . § 14.6(a)(1). While the guidance does not require the USPS or any other government agency to pursue a particular process, it unambiguously instructs federal agencies to make a genuine effort to resolve an FTCA claim informally and efficiently, thereby avoiding protracted and expensive litigation.

The USPS' approach to handling Kyeremeh's administrative claim was contrary to that guidance. Kyeremeh, through her then-attorney, Ms. Collins, filed a notice of claim on August 16, 2010, describing the circumstances surrounding the accident and stating that she (Kyeremeh) had "incurred medical expenses as a result of her injuries and... sustained other economic and non-economic damages...." [Doc. 30, Ex. A.] Kyeremeh requested "payment of no less than $150, 000.00" in money damages. [Id.] The USPS acknowledged receipt of Kyeremeh's claim on September 13, 2010 and said it would be given "careful consideration." [Doc. 30, Ex. D.] Kimberly Herbst, a USPS tort claims examiner/adjudicator, sent Collins a letter dated October 4, 2010 requesting medical records and bills for the treatment Kyeremeh received to substantiate her claim. [Doc. 30, Ex. E.] Collins notified the USPS by letter the next day that she was withdrawing as Kyeremeh's counsel. [Doc. 30, Ex. F.] It is unclear whether Kyeremeh received the USPS' October 4 letter to Collins, and what, if anything, the USPS did between October 5 and January 2011 regarding Kyeremeh's claim.

Herbst sent Kyeremeh a letter dated January 13, 2011 stating that the USPS had previously asked Collins to provide medical records, which Collins failed to do. [Doc. 30, Ex. H.] Because it was Herbst's "understanding that Attorney Collins was no longer representing [Kyeremeh], " Herbst asked Kyeremeh directly to provide the records herself. [Id.]

On February 11, 2011, Herbst sent a letter to Keith Frankl, Kyeremeh's new attorney. In the letter, Herbst noted that she and Frankl had "a recent telephone conversation" in which Frankl indicated to Herbst that Kyeremeh "was continuing to receive medical treatment and estimated that [he] will not be providing medical documentation in order to support her claim until at least May of this year." [Doc. 29, Ex. 2.] In spite of Frankl's assurances that documentation would be forthcoming and that the delay was attributable in part to Kyeremeh's ongoing treatment, Herbst flatly stated that the USPS "cannot keep this claim open for an extended amount of time without documentation in support thereof[, ]" and denied Kyeremeh's claim for failure to "submit competent evidence of injury." [Id.] Herbst said that Kyeremeh could either file suit in federal court or submit a request for reconsideration of its decision.

On July 1, 2011, Frankl filed a new claim with the USPS on Kyeremeh's behalf seeking $1.3 million in damages and attaching supporting medical records and bills. [Doc. 29, Ex. 3.] The USPS responded on July 7, 2011, stating that it would deem the new claim as a "request for reconsideration" of its February 14, 2011 decision and it would "review the additional information you provided in order to make the determination as to any legal liability on the part of the Postal Service for the injuries sustained by your client." [Doc. 29, Ex. 5.] The USPS denied Kyeremeh's request for reconsideration on November 16, 2011 in a letter from USPS attorney Stanford Bjurstrom, who said that, based upon a review of the information set forth in Kyeremeh's claim file, "we feel that this claim involves issues best resolved in court." [Doc. 29, Ex. 6.] In the one year and three months that had passed since Kyeremeh initiated the USPS' FTCA administrative process, that was the only statement the USPS made regarding the actual substance of Kyeremeh's claim.

The USPS did not appear to consider Kyeremeh's physical condition or her financial circumstances when it evaluated her claim. The USPS's obdurate refusal to attempt to resolve the matter forced Kyeremeh to initiate this action, and, in the meantime, seek medical treatment without access to high-quality care. One may wonder what her present condition would be if the USPS had given attention to her needs at the time it became aware of her claim.

FACTUAL FINDINGS

At the scene of the accident on May 14, 2010, Kyeremeh told Officer Curtis Franklin of Denver Police she was not injured. When she was examined at the Emergency Department of Denver Health Medical Center, she was diagnosed with cervical strain[1] and low back pain. An x-ray of Kyeremeh's lumbar spine[2] was unremarkable. Her emergency room physician recommended that she take over-the-counter medication. Kyeremeh returned to Denver Health two days later, complaining of extreme pain. She was given a cervical collar to wear and prescriptions for Percocet and Valium to treat the pain.

Kyeremeh's first therapy provider was Dr. Tracy Holmes, a chiropractor. Kyeremeh saw Dr. Holmes on a lien basis[3] beginning on May 17, 2010. Kyeremeh initially reported functional limitations, pain in many areas, numbness and tingling, and weakness. Dr. Holmes observed that Kyeremeh had a decreased range of motion, muscle strain in the lumbar region, and severe muscle spasms throughout her spine and in her arms. Holmes performed muscle stimulation and adjusted Kyeremeh's back. Thereafter, Kyeremeh visited Holmes approximately three times per week for almost a year.

Following the accident, Kyeremeh's Taurus was deemed a total loss. Kyeremeh rented a replacement vehicle for roughly three weeks. She then purchased another car.

On or about May 21, 2010, Kyeremeh returned to work as a janitor for ProSource, a cleaning company, on ProSource's contract with a medical device company called the Sorin Group. Kyeremeh worked light duty and reduced hours because of her physical limitations. Following a May 28 chiropractic visit, Dr. Holmes noted inflammation and swelling in the soft tissue of Kyeremeh's back.

On June 1 and 15, 2010, Kyeremeh went to the emergency room at St. Joseph's Hospital reporting pain all over her body and difficulty moving. On her second visit, she was given a prescription for Percocet and Flexeril. Dr. Holmes noted on June 23 that Kyeremeh was "feeling like she did after the accident" and recommended that Kyeremeh see a primary care physician.

Based on Dr. Holmes' referral, Kyeremeh began receiving medical treatment at PremierCare on a lien basis. She first saw Dr. Joseph Ramos, who owned PremierCare, practiced medicine there, and owned MedLaw Funding, LLC, a medical lien provider through which parts of Kyeremeh's care were financed. Dr. Ramos is also a practicing lawyer. Kyeremeh received an initial intake exam from Dr. Ramos and physician's assistant Jim Peterson on July 6, 2010. She reported significant pain in her head, neck, back, and shoulders. Diagnostic tests indicated a lumbar disc issue. Peterson referred Kyeremeh for physical therapy and prescribed her painkillers and muscle relaxants.

At a July 12, 2010 visit with Dr. Holmes, Kyeremeh reported severe pain; Dr. Holmes noted that it reminded her of Kyeremeh's first week of treatment. When Kyeremeh received the medications prescribed by Peterson, she reported a 30%-40% improvement to Dr. Holmes.

On July 23, 2010, Dr. Holmes observed that Kyeremeh was limping, which Holmes believed was caused by a disc injury.

An MRI was performed on Kyeremeh's lumbar spine on August 13, 2010. The results were read as normal except for a small central disc bulge at the L4-5 and L5-S1 levels.[4]

Kyeremeh began receiving physical therapy on August 31, 2010. Kyeremeh reported pain and was noted as having significant range of motion deficits, hypertonicity throughout her spine[5], and spasms throughout her back and shoulders. A compression test indicated injury to Kyeremeh's cervical disc. Kyeremeh received heat, electrical stimulation, massage, and performed various exercises during her physical therapy sessions, which totaled roughly 40 overall from late August 2010 until late January 2011.

Following a September 17, 2010 chiropractic visit, Kyeremeh reported significant pain. Dr. Holmes began to believe that the adjustments she had been performing were not working. Five days later, upon reviewing Kyeremeh's MRIs, Dr. Holmes concluded that Kyeremeh had herniated discs. Dr. Holmes decided to suspend adjustments and instead perform decompressions on Kyeremeh's spine over the course of twelve, twenty-minute sessions.[6]

An MRI was performed on Kyeremeh's cervical spine on September 28, 2010. The results were read as normal except for a small disc protrusion at the C5-6 level.

During an October 4, 2010 visit with Dr. Holmes, Kyeremeh said she "[hurt] everywhere" and that her mental status was deteriorating. Dr. Holmes referred Kyeremeh to a psychologist.

Kyeremeh visited PremierCare on October 25 and reported tenderness in the muscles over and around her facet joints.[7] Jim Peterson noted Kyeremeh had an extremely limited range of motion and an increase in lower back pain when he applied pressure, which indicated facet dysfunction.

Kyeremeh began receiving acupuncture treatment on November 2, 2010. She attended 10 acupuncture sessions over the course of a year and three months, until February 15, 2011.

On November 4, 2010, Dr. Holmes spoke with Jim Peterson, who recommended that Kyeremeh receive injections into her facet joints.[8] The two decided that Dr. Holmes' continued decompressions, as well as adjustments of Kyeremeh's thoracic spine[9], would work in tandem with the injections. Holmes decided on twelve more decompression sessions around this time.

Dr. Paul Leo, a PremierCare-affiliated pain management specialist, examined Kyeremeh on November 18, 2010, a little over six months following the accident. He concluded that she had a facet injury or dysfunction. He concurred in the recommendation that she be given facet injections.

Following a decompression session with Dr. Holmes on November 24, 2010, Kyeremeh reported pain and difficulty sitting up. That same day, Dr. Holmes decided that six ...


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