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Cheryl Ann Dillon v. Liberty Mutual Insurance Company and Wausau Underwriters Insurance Company

July 25, 2011


The opinion of the court was delivered by: Chesler, District Judge



This matter comes before the Court on the motion by Defendants Liberty Mutual Insurance Company and Wausau Underwriters Insurance Company (collectively, "Liberty Mutual" or "Defendants") to dismiss the Amended Complaint, pursuant to Federal Rule of Civil Procedure 12(c) [docket entry 14]. Plaintiff Cheryl Ann Dillon ("Plaintiff") has opposed the motion. The Court has opted to rule based on the papers submitted and without oral argument, pursuant to Federal Rule of Civil Procedure 78. For the reasons expressed below, Defendants' motion will be granted.


This action was initiated by Cheryl Ann Dillon after Liberty Mutual allegedly delayed providing her medical benefits following an accident occurring at Palisades Medical Center, her place of employment. Plaintiff avers that she suffered a workplace accident on July 16, 2010, which she immediately reported to her direct supervisor. On July 20, 2010, Plaintiff received medical treatment for her injury from Dr. Sayed Jafri, Chairman of the Neurology Department of Palisades Medical Center. Dr. Jafri advised Plaintiff to remain out of work because of her medical condition and referred her to one of the hospital's consulting neurosurgeons, Dr. Frank Moore, who opined that Plaintiff was a likely surgical candidate.

According to Plaintiff, on August 26, 2010, a case manager for Liberty Mutual contacted her. Plaintiff asserts that she informed the case manager that she was in "desperate need of treatment," that she was having difficulty working, and that Dr. Jafri and Dr. Moore advised her that she might "possibly need back surgery." (Am. Compl.¶ 12, Mar. 8, 2011.) Subsequently, on September 8, 2010, Plaintiff's counsel contacted Liberty Mutual and requested medical treatment for Plaintiff. The same day, Plaintiff filed a motion for medical and temporary benefits with the Division of Workers' Compensation.

On September 8, 2010 Liberty Mutual requested medical authorizations from Plaintiff and on September 16, 2010, it appointed Dr. Ari Ben-Yishay to examine Plaintiff. Subsequent to his examination on September 23, 2010, Dr. Ben-Yishay issued a report recommending treatment by way of an L3-4 transforminal epidural and two to three weeks of physical therapy. Dr. BenYishay also recommended an L3-4 diskectomy should Plaintiff fail in this conservative treatment.

On October 13, 2010, Plaintiff's motion for medical and temporary benefit was heard by the Honorable James Welsh, Supervising Judge of Compensation. Judge Welsh granted Plaintiff's motion and ordered Liberty Mutual to provide Plaintiff medical treatment with Dr. Ben-Yishay, in accordance with his report. As a result, on October 19, 2010, Liberty Mutual mailed a letter to Plaintiff, advising her that she was authorized to seek treatment with Dr. Ben Yishay. According to the Amended Complaint, after her first session of physical therapy that took place on November 4, 2010, Plaintiff was advised by Dr. Ben-Yishay that she was no longer authorized to receive physical therapy nor any other treatment.

As such, Plaintiff filed the Amended Complaint on March 8, 2011, alleging that Liberty Mutual "frivolously, willfully, wantonly, maliciously and/or intentionally" refused to and delayed in providing her with medical treatment in violation of the Workers' Compensation Act and its enforcement provisions of the New Jersey Administrative Code. (Am. Compl. ¶¶ 46-48.) As a result, Plaintiff avers that she sustained pain and suffering, deterioration of her medical condition, inability to return to work sooner, and mental anguish and severe emotional distress. Plaintiff additionally claims that Liberty Mutual's failure to provide benefits in a timely fashion were "intentional," "egregious," and "outrageous," and committed in an attempt to evade the Act. (Am. Compl. 10-12.) Defendants filed the instant motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).


A. Standard of Review

Rule 12(c) permits a party to move for judgment on the pleadings "after the pleadings are closed -- but early enough not to delay trial." Fed.R.Civ.P. 12(c). Though procedurally it applies later in a case than a Rule 12(b) motion, which may be filed in lieu of a responsive pleading, a motion brought under 12(c) for failure to state a claim upon which relief may be granted is governed by the same standard applicable to Rule 12(b)(6) motions. Turbe v. Gov't of the V.I., 938 F.2d 427, 428 (3d Cir. 1991). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff's claims have facial plausibility. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). This means that the Complaint must contain sufficient factual allegations to raise a right to relief above the speculative level, assuming the factual allegations are true. Id. at 1965; Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). The Supreme Court has made clear that "a formulaic recitation of the elements of a cause of action will not do." Twombly, 127 S.Ct. at 1964-65; see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009) ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.").

In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court may consider only the complaint, exhibits attached to the complaint, matters of public record, and undisputedly authentic documents if the complainant's claims are based upon those documents. See Pension Benefit Guar. Corp., 998 F.2d at 1196. The issue before the Court "is not whether plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence in support of ...

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