Costa Rwagasore v. Grange Property & Casualty Insurance Co. ( 2023 )


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  •                  RENDERED: JANUARY 27, 2023; 10:00 A.M.
    NOT TO BE PUBLISHED
    Commonwealth of Kentucky
    Court of Appeals
    NO. 2022-CA-0413-MR
    COSTA RWAGASORE                                                       APPELLANT
    APPEAL FROM JEFFERSON CIRCUIT COURT
    v.               HONORABLE ANN BAILEY SMITH, JUDGE
    ACTION NO. 21-CI-006453
    GRANGE PROPERTY & CASUALTY                                              APPELLEE
    INSURANCE CO.
    OPINION
    AFFIRMING
    ** ** ** ** **
    BEFORE: ACREE, COMBS, AND ECKERLE, JUDGES.
    COMBS, JUDGE: This case arises from an insurance dispute in which the insurer
    sought a medical examination of the claimant. Costa Rwagasore appeals from an
    order of the Jefferson Circuit Court granting the petition of Grange Property and
    Casualty Insurance Company (Grange) to appear for a medical examination by a
    physician of its choice as a part of its investigation of Rwagasore’s insurance
    claim. Rwagasore argues that Grange failed to present evidence showing “good
    cause” in support of its petition as required by the provisions of Kentucky’s Motor
    Vehicle Reparations Act (MVRA), KRS1 304.39-010 et seq. KRS 304.39-270(1).
    After our review, we affirm the court’s order requiring Rwagasore to appear for the
    examination.
    On October 19, 2020, Rwagasore was driving his Nissan Sentra
    southbound on Hurstbourne Parkway in Louisville. While he was stopped at a
    traffic signal, his vehicle was rear-ended by a vehicle that immediately fled the
    scene. The accident report prepared by an officer of the Jeffersontown Police
    Department indicated: “no injuries, no pictures taken and no vehicles were
    towed.” Eleven days later, Rwagasore sought treatment at a medical clinic. He
    complained of pain in his back, chest, neck, shoulder, left knee, right leg, and right
    foot. Ultimately, Rwagasore received extensive medical care and treatment from
    numerous medical providers. He sought insurance coverage under the basic
    reparations benefits provisions of Grange’s policy.
    Upon evaluating the claim, Grange suspected that the injuries
    allegedly sustained were not caused by the motor vehicle accident. After
    reviewing medical records submitted by Rwagasore, Grange requested a recorded
    statement, which Rwagasore provided on February 1, 2021. Based on this
    statement, Grange requested that Rwagasore participate in an examination under
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    Kentucky Revised Statutes.
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    oath. On May 26, 2021, Rwagasore participated in the examination under oath.
    Grange then requested an expert peer review of Rwagasore’s medical records.
    After it received the results of the peer review of the records, Grange filed a
    petition pursuant to the provisions of KRS 304.39-270 requesting the court to order
    Rwagasore to appear for a medical examination.
    Grange argued that Rwagasore put his physical condition at issue and
    that a real dispute surrounded whether the allegedly significant injuries arose from
    the minor motor vehicle accident. It observed that Rwagasore had an extensive
    medical history of pre-existing issues with his right knee; that he had been
    involved in four prior motor vehicle accidents in a short span of time; that his
    alleged injuries appeared inconsistent with the nature of the motor vehicle accident
    of October 2020; and that a peer review of his medical records indicated that an
    examination of the medical records alone was insufficient to determine the cause
    of the alleged injuries or the necessity of the care and treatment provided. Grange
    sought an order requiring Rwagasore to submit to a limited physical examination
    in an effort to establish the nature of the loss -- if any. Rwagasore filed a written
    response challenging Grange’s request.
    Following a hearing, the trial court found that Grange had
    demonstrated good cause to warrant a physical examination pursuant to the statute
    and ordered the examination. The court ordered Rwagasore to appear for an
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    examination to be conducted by Dr. Michael Best at his office on Breckenridge
    Lane in Louisville within thirty (30) days. The examination was limited to the
    injuries allegedly sustained as a result of the motor vehicle accident of October
    2020. This appeal followed.
    On appeal, Rwagasore contends that the circuit court erred by
    ordering him to submit to a physical examination because Grange failed to show
    that it had utilized less intrusive means of evaluating his claim and failed to show
    that an in-person physical examination was warranted.
    The provisions of KRS 304.39-210 require Grange to conduct a
    reasonable investigation and to pay claims after receiving proof of the fact and
    amount of loss. As part of the insurer’s investigation, KRS 304.39-270(1) provides
    as follows:
    If the mental or physical condition of a person is material
    to a claim for past or future basic or added reparation
    benefits, the reparation obligor may petition the circuit
    court for an order directing the person to submit to a
    mental or physical examination by a physician. Upon
    notice to the person to be examined and all persons
    having an interest, the court may make the order for good
    cause shown. The order shall specify the time, place,
    manner, conditions, scope of the examination, and the
    physician by whom it is to be made.
    While the statute expressly permits an insurer to require a claimant to submit to a
    medical examination, it cannot compel the examination without a showing of
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    “good cause.” Grant v. State Farm Mut. Auto. Ins. Co., 
    896 S.W.2d 24
     (Ky. App.
    1995).
    In Miller v. United States Fidelity & Guaranty Company, 
    909 S.W.2d 339
     (Ky. App. 1995), we held that “good cause” is more than a mere suspicion that
    the insured’s care was unnecessary or unreasonable. Instead, the insurer must
    present some proof that it has taken measures to determine the validity or extent of
    the insured’s injuries that were less intrusive than an unwanted medical
    examination. 
    Id.
     In Miller, the insurer submitted to the trial court an affidavit by
    its adjuster setting out its general suspicion about the claim. We concluded that the
    affidavit, by itself, was insufficient to show good cause to require the examination.
    Absent any specific evidence supporting its suspicions, we concluded that the
    insurer failed to establish good cause to require a medical examination. 
    Id. at 343
    .
    However, in White v. Allstate Insurance Company, 
    265 S.W.3d 254
    (Ky. App. 2007), we held that the insurer had shown good cause to require its
    insured to submit to a medical examination. In White, the insurer retained a
    medical expert to perform a peer review of the insureds’ medical records. The
    expert concluded that the medical records failed to indicate a nexus between the
    care provided and the motor vehicle accident; failed to document the medical
    necessity of the care and treatment; and failed to provide a treatment plan. We
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    concluded that the expert’s report was sufficient to establish good cause to compel
    the insured to attend the medical examination.
    In this case, Grange employed numerous measures to evaluate
    Rwagasore’s claim before it petitioned the court to compel him to appear for a
    physical examination. In its petition, Grange set forth specific reasons supporting
    its suspicions concerning the nature of Rwagasore’s treatment and care and
    explained to the trial court how the physical examination could be expected to
    address its suspicions about the cause of his alleged injuries. Following his review
    of the available medical records, Dr. Best reported to Grange as follows:
    Clearly, with this multiplicity of patient complaints,
    especially a past history of chronic regional pain
    syndrome[,] the only objective means by which this
    patient can be evaluated is with a hands-on physical
    examination with functional testing. A simple records
    review, without examining the patient, would fail to
    adequately identify pathology and need for treatment.
    We could not adequately determine the cause of a gap in
    treatment, the necessity of 30 physical therapy visits and
    whether all treatment was provided secondary to the
    effects of the motor vehicle accident. Therefore, an
    independent medical evaluation with functional capacity
    testing should be performed in order to adequately assess
    this patient’s injuries.
    Grange amply explained the basis of its doubts concerning the nature
    of Rwagasore’s alleged injuries and cited evidence sufficient to place causation at
    issue. Moreover, as noted above, a peer review of the insured’s medical records by
    an independent medical expert may be sufficient to establish good cause for a
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    physical examination. White, 
    265 S.W.3d at 255
    . Under the circumstances of this
    case, Grange satisfied its burden to show good cause. Therefore, the trial court did
    not err by ordering Rwagasore to submit to the medical examination sought by
    Grange.
    We affirm the order of the Jefferson Circuit Court.
    ALL CONCUR.
    BRIEF FOR APPELLANT:                      BRIEF FOR APPELLEE:
    Aaron Michael Murphy                      Eric S. Rice
    Louisville, Kentucky                      Daniel S. Gumm
    R. Christian Garrison
    Louisville, Kentucky
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