the issue in this case really comes down to this when an insurers presented with two claims from the same insured made that insurer consistent with its obligations of good faith and fair dealing ignore evidence that the insured is entitle to benefits under one claim based on the technicality that it discovered this evidence in the presentation of a separate claim we submitted cannot do so there isn't a supreme court in the silage case said an insurer violates his duty of good faith and fair dealing when it forces an insured to go through needless have a serial hoops and what the teaching of that case is is that it's not simply a wreck doing artificial barriers to for this insurer to be able to get the benefits it's elevating form over substance it's preventing insured from getting a benefit to which they're entitled based on a technicality in our briefing you'll see that we say that there are we identified three breaches that occurred the first is the initial denial of david clarkson that claim why was that a problem counsel at that point he didn't even think that it was he wasn't even tying it to after the act he submit this claim in february and then in march there's the denial of the nec claim ok so that at that point my understanding is that he had reported and the employer had reported they didn't think it what was wrong with that why was that about faith because she hadn't she knew that there was an m r i that was happening right and the denial in that instance was a denial without any medical evidence she had to fish or cut bait basically that denial was solely based on the idea that i've got twenty one days and i'm going to deny that there have been no review of the medical records i want in time doesn't she have to doesn't isn't a binary choice i would agree with you out of that's a binary choice but in this instance well wait a minute so since it's a binary time not trying to give you a hard time it just seems to me this is not your strongest argument i was as of the time she denied a different choice is just yes or no and at that point nobody had tied it to the thumb injury then why is this a bad faith issue when the iommi report comes in the adjuster who is the same adjuster for both of these claims these claims are two months apart in terms of the suppose it dates of injury to same adjuster same employer same july twenty fourth she's got this note in her record saying clark is now alleging he had cervical pain or injury after his november truck accident and she also knowledge claims were consolidated correct so is your strongest argument that between july twenty fourth and march fifth they don't have a reason to not pay the claim they didn't have a reason to not play the pay the claim and they also did not have a reason to continue to force us to go through the i c a process in order to ultimately get the award that we did ok so here's my next question on march fifth two thousand and fourteen the adjuster notes that she's waiting for the judge's decision the judge knowledge is that the i am me thinks it's connected to the thumb but then says the judge could still decide this claim is non compensable and related to the earlier two thousand and twelve incident your client had and notation earlier about something happened before november of twenty injury what is the here's my question what's the first indication in the record that the insurance adjuster was aware of that earlier injury injury earlier than the thumb injury yes i don't know the answer to you r but that would provide a basis to deny the claim would it not i don't know that it would provide a baby it might provide a a reason which a jury could decide whether or not it was a sufficient reason but again this is a standard here and there's a reason why bad faith is usually determined by the juries the jury has to look at the facts and decide and make weigh the credibility determinations and decide whether or not this decision was a decision that was made in good faith i  district court seem to be quite influenced by the fact that the i am the report was very careful to say i'm only going by his self report of his history i know nothing about this person's history but in a i agree that the district court was influenced by that but again that is a that's the type of credibility determination that a jury should make not just record it's congress argument is that that at summary judgment this was the trigger was pulled too quickly and this should have gone to the jury is absolutely right or that's what i mean i think our i hope our brief makes clear that we think this is a summary judgment case and in fact we spend some time in our brief on just reports weighing evidence which is not something i would normally try and bring to this court's attention on and to novo review but as the there's been numerous cases in the district of arizona regarding workers compensation bad faith cases and they're kind of all over the map and so some guidance from this court reminding the district courts that they when they're applying the standard that they are using a summary judgment standard should not be making credibility determinations and when what about dr post testimony in the report of dr fees  y wasn't enough to show the reasonably sure would have denied the claim it's a so on the fairly debatable you know spectrum it's true that if a claim is fairly debatable a and adjuster can defend on that base yes but again here that report isn't definitive enough in terms of the claim and what we have is a when the i am me again i want to focus on the second on the second part when the i am he says we think that this is related and the insurer turns around and uses as their basis for denial that it's on appeal so we can't so we can't  revaluate this claim we can't open it up that's a violation of duty of good faith and fair dealing the insured is supposed to treat the insureds rights as paramount to its own and so we can't elevate its own rights over that of the insured so when you have this evidence that the i mean he says and again this is there i am me who they paid for to give this opinion who says this thing is related the insure can't rely on well that's this claim and i've got another claim and by the way they're both up on appeal i mean what the what the  we know that that the adjuster knew at the time that the i me believed that this was caused by the thumb injury we know that the the adjuster at the time believed that the sorry we know that the adjuster at the time knew that clark was making a claim right that these had been consolidated and so that this was being heard together but what the justice said the adjuster testified is that they were not going to open up the could not revisit it because it was up on appeal and  deposition testimony has been revisit the denial of the cervical injury as opposed to the thumb well they're both they were actually both being appealed but and they are being consolidated together but that's the the denial is they're saying to the adjuster saying essentially once this case is up on appeal it doesn't matter what evidence i presented with it's up on appeal i'm entitled to allow that i see a process to run its course and we don't think that that's actually the standard insurance carriers oh you can't just rest and say well we've got a coverage dispute so we're going to we're going to wait and not do anything not evaluate we're just going to wait until the coverage dispute is resolve the record it was easy tonight to deny the second injury at that time because there was no eye in the it and nobody had tied it back to the thumb as that as we have just discovered so i'll just tell you that that's just my scorecard i've read the record and so the reason it seems to me to be important is because the cases were consolidated on appeal but the district judge said nobody ever asked the adjuster to pay this claim this cervical injury to the thumb injury and and  district judge's order said that kind of bears some responsibility for the lack of communication so well i really appreciate this tension in the arizona law saying that the insurance company has to put its insureds interests first and let them know when they're entitled to benefits it does seem to me there are two different files on the adjusters avastin is it is it correct was it just a court correct that you were relying on the insurance company to put the two together and recognize that the claim was compensable or was there ever a request by your once the case is consolidated on appeal we know that these things are together so the inch the adjuster has reason to believe that these claims are going to be decided together what and so when you say things are together there's consolidated in the court that by the way that this is a term that causes confusion all the time consolidated maybe we don't want to come to the courthouse twice we'd like to hear those two completely distinguishable claims together and so those are going to travel together and sometimes people misuse the word consolidate which are i don't i couldn't find anything in this record that tells me what consolidate means well the only thing that you can look at is the i c a o award itself which i'm sure the court has looked at which is and which is in our ego are what the insurance company i noticed that you thought this was all one big soup is it in the report the i only report but definitely puts it on notice and again we've got the same adjuster same employer same injured employee and events that are two months apart and so in this instance put those things together the adjuster can certainly put those things together and a jury could conclude that this is bad faith i wouldn't i would not be standing here in front of this court suggesting that that that that tempora line extends forever but here a jury could definitely conclude that when you have these two injuries two injuries that are so close together and their own i mean comes back and says this is related to the thumb injury that they can and just simply continue to sit on their laurels and and not just claim when they have evidence that it's compensable the law to the july twenty fourth no tells us that the adjuster knew thirteen through about march fifth twenty fourteen i think we make the dates clear in our brief yes you make of the longer but it seems to me that that's the that's the segment that it is that issue but anyway did you want to take some time i'm good morning your honour's d n a as representing indemnity and gallagher if i could just die right into the the issue with the i am me and talk about the consolidation of the hearing that seems to be appointed interest with regard to the consolidation there was never an indication by clark that he wanted to abandon his january twenty sixth two thousand and thirteen claim and attempt to extend his november claim to include the thumb in fact with regard to that neck yes include the thumb injury to the through to the thumb and the neck also you argue this extensively in your briefing and i just kept asking myself what the heck why would he care which way you pay him he just wants to be paid for his injuries so this was really hard thing for me to understand why you're making this argument the way the arizona statute is set up to pay permanent impairment and to pay income benefits to the worker that actually was to clark's benefit and also to his counsel's benefit with regard to the way they were paid if he had two separate injuries to make an allusion to the fact that he was perceived he definitely say that he's pursuing two different claims and that he would have been it was to his benefit he was going to get more money that way somehow it doesn't explain how but that's your position that if there were two he would it would have been a more lucrative claim it would have been more lucrative claim because what he would was ultimately seeking was a final impairment for both of his claims for the thumb which was that was what one of the hearings was a hearing to determine the permanent impairment to his thumb because under the arizona statute he would get a sum of money for that if he was spelled also at some compensable spinal injury then arguably he might be entitled to an impairment for the net claim also but if it had why does it matter if it's packaged into claims or one because he gets a whole body writing so if the claim is actually packaged as one claim the assessor will figure out a calculation for the will figure out a calculation for the spine for the cervical spine and then they will combine those figures under the a m a guidelines to give one whole body impairment writing a lot of times what happens is people who have multiple body parts injured they end up with a reduced overall rating than if you were just to add  say a four percent and a ten percent there's a white factors then that the medical professionals do and it gives one whole person writing and that's what the insurance company pays but if you are not factoring in two separate  separate injuries into one claim you don't have the reduction for the whole person so mr clark could have stood to have got one writing for the thumb under a thumb date of injury which would not have been reduced to a whole person writing by a cervical component and then he could have come over to his january claim that he was asserting and got an assessment for his cervical spine which would not have been factored into an overall whole person writing so i can't say that the record shows the amount of money that it would have been reduced to do the writing for but there would be a reduction for the writing under the statute if you have different body parts write it in the same one as my plus just to be completely clear about this it's not that i don't trust you it's you probably give me more information than i need is it is going to be contested i'll ask him the same question when it comes up is it going to be contested if these very same injuries were packaged in two separate claims that that would have been more lucrative than if he had applied for the main one i haven't seen any briefing on this by counsel so i don't know what his position might be on question but i can say in the record there is no question on it that was argued and that's your position ye honor ok so can you then go to this next question which is what's your i'm focused on between june twenty seventh which is the date of i and me that said i think this mechanism of injury is the phone right what's the reason for the delay to establish the claim of what he's seeking for benefits it is undisputed in this case that clarke never withdrew his january claim he always pursued the january claim he went to a hearing and he testified i have a january claim to my neck his doctors medical records all say that causation was for this january second climb so we have a worker who is trying to go with two climbs that's one reason second we had an adjuster who had an index come back which an index shows up in the claim notes and it basically reflects other claims that are made by the worker so we know from the claim notes that as of july the adjuster was aware that there were prior cervical climbing i look for that and i couldn't find it as of july two thousand and thirteen yes sure are where is that that is that was in the summary judgment evidence addition to the index we also have the surgeons report which if you again look in the record and that was in the summary judgment evidence also as a sub part  b if you look at the top of that record you see a it looks like have an old timey facsimile tracking number and you give me the e r site i do not have that with the material i have is it in the record yes your honor it is and this is the report of the surgeon in the surgeon's report he specifically states that as early as september so this puts that before the november thumb injury that as early as september mr clark was having increasingly severe cervical pain including paralysis and numbness going into the hand that's the part i do know i'm trying to figure out when  she discovered that that went into the package of material that went to the i am me provider well i mean he said he was relying entirely upon the he didn't have that is reports clear he doesn't have any prior history well it does not appear that he does but in you would you look at the adjuster speil she indicates that records were gathered and she's says the m r i this the surgeon report she doesn't call the surgeon by name she says surgeon report to the court because again what the adjuster was looking at was the i am me report where dr breggin said it's likely industrial in nature but then he also goes on to say he was soley relating this based on the subject of compliance with the subjective history of clark but then we also have the adjuster haven't her file the completed index showing prior claims and we also have the surgeon's own report saying that this would have been going on at least since september predating the november climb and it only matters if she knew it if she had it if that was given her reason for this delay and that's why  appropriate not just that the surgeon said that there was a september preexisting increasing complaint from a cervical but also the adjuster had a worker telling her that he making a claim for the cervical from a specific incident that happened in january you also had the same worker telling his doctors that he didn't know whether it was work related you had the adjuster but after that i me indicated that it was industrial in nature but not only that even after june you still have clark's own doctors supporting and making an assertion that this is all a second injury so basically what the plaintiff is arguing to the court now which is not what the plaintiff was arguing what clark was arguing that the administrative level is you should totally disregard all of my treating doctors when you're speaking of clark's own doctors the adjuster had a summary made of his medical records are those references in the summary references from his own doctors indicating that he had a earlier injury i do not believe  couldn't find them ok but what we do know is that at the administrative hearing clarke testified he had the second january injury we do know that clarke put on testimony from his own medical doctors that he was claiming a january injury the only denial ever by the carrier was for a january injury for the cervical and in that regard the i c a industrial commission upheld that denial that there was no injury there was never an attempt by clarke to secure any benefits at all for the cervical spine under the november climb in fact this record is devoid of any evidence that clarke ever sought any medical at all for the cervical we know he submitted on his group health and in doing so he bypassed the worker's compensation system of arizona which would have entitled the carrier to certain rights and remedies for spinal surgery second opinion counsel what's your response you you heard him say his his argument is we consolidated the claims so what is your response about well the claims were not consolidated and if you look in the record and again this isn't the summary judgment evidence there was a letter that's a summary judgment  from the claimants attorney below where he was requesting that they be consolidated for hearing purposes so instead of having one herring regarding what the impairment writing would be on the phone and then come back another day for a hearing on the complaints ability of a january climb they just had the hearings together at one time for the sake of convenience but more importantly the record and the testimony from clarke is that he never sought to have i ca give him one klein he never sought to get benefits for spinal surgery or spinal injury and has no over november climb at the i c a he was always seeking two distinct dates of last two distinct injuries and the consolidation really was for the convenience of the parties and was accommodated by what you understand to be the the just or the principal part of the bad faith claim it's  prong then in the summary judgment briefing clarke argued that somehow the carrier should have known that he wished or should have overridden his rights that he did not wish to have the spinal here refused or declined to consolidate those two claims on its own motion so to speak that is that they have bad faith so to speak that's the allegation because there was declaration basically what clarke is saying is that the adjuster should have ignored arizona statute twenty three dash nine away that gives him the right to establish his own claim of what he's going to sort of his injuries and that the adjuster should have just dropped the second injury after the begun i am into the first one and again even begun xy me report was equivocal because he says it's probably industrial and i'm basing my finding soley on the subject of allegation of clarke when the adjuster still knew that clarke was claiming in assaulting a second injury he did it too and i am nice and he came to the same conclusion both times right the purpose of the second i am me was to determine whether or not the condition was medically stationary for purposes of giving an impairment writing on the cervical spine as i do to i am nice i think the answer to that is yes and at the time of the second one i'm trying to get at what he knew when he did the second one did any of it change he was he was not to ask and did not appear to readdress compounds ability of the cervical as to november he was simply requested to address is the cervical spine medically stationary such that no further treatment is necessary so that there can be an impairment if he ever changes opinion all the way through the hearing doctor begun no he did not so he continued to be of the view that this was industrial  nature he continued to be of the view that it was industrial and that it was not tied to a january twenty sixth date of loss that he didn't give testimony in the i c a record with regard to affirming the november climb because that wasn't asked of him because again at that point in time your honor the plaintiff was still trying to have two separate claims and was offering his own doctor's evidence to support there were two separate climbs thank you thank you very briefly there's was speculation that separating this in just two claims would be more beneficial for my client or his workers compensation lawyers i wouldn't say it's tr because those are the bad faith claim that speculation and that is evidence that could come out at trial in the jury is free to weigh that but it is not a reason based on some sort of objective standard that that you can grant some that the court could have granted summary judgment in this case also the reasons for the delay that have been offered are reasons that a jury could review and determine whether or not those reasons based on the on the weight of evidence would be more