Opinion

Amos, Harvey v. Goodman Global Group

  • 2016 TN WC 249
Court
Tennessee Court of Workers' Compensation Claims
Filed
Oct 20, 2016
Status
Published
On the bench
Dale Tipps
Cited by
0 cases

The opinion

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MURFREESBORO

HARVEY J. AMOS ) Docket Nos: 2016-05-0348

Employee, )

)

v. ) State File Numbers: 27681-2016

)

GOODMAN GLOBAL GROUP )

Employer, ) Judge Dale Tipps

And )

)

INDEMNITY INS. CO. OF NORTH )

AMERICA )

Insurance Carrier. )

)

EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS

This matter came before the undersigned workers’ compensation judge on October

18, 2016, on the Request for Expedited Hearing filed by the employee, Harvey Amos,

pursuant to Tennessee Code Annotated section 50-6-239 (2015). The present focus of

this case is whether Mr. Amos is entitled to temporary disability benefits for his alleged

neck injury. The central legal issue is whether Mr. Amos came forward with sufficient

evidence for the Court to determine that he is likely to establish at a hearing on the merits

he suffered an injury arising primarily out of and in the course and scope of his

employment. For the reasons set forth below, the Court holds Mr. Amos is not entitled to

the requested temporary disability benefits at this time.1

History of Claim

The following facts were established at the Expedited Hearing. Mr. Amos

suffered a work injury to his cervical spine while working at Goodman in 2010.

Goodman accepted the claim as compensable and the parties settled the claim in the

1

A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order

as an appendix.

1

Chancery Court of Lincoln County on August 10, 2011. The settlement Order describes

the injury as a disc herniation at the C4-5 level that was treated by Dr. Cyrus Ghavam. It

also provided that Mr. Amos retained his statutory right to future medical treatment. (Ex.

4.)

Mr. Amos returned to work at Goodman, although he occasionally had “flare-ups”

of neck pain. He testified that he was working as a set-up man on Friday, October 23,

2015. He did not describe any injury or incident occurring at work that day. Instead,

after he went home that evening, he began having pain, tingling, and numbness in his

arm. He called Goodman over the weekend to try to report the problem and spoke to

Bobby Griffin in Goodman’s first aid facility the following Monday. He told Mr. Griffin

about his symptoms.

Mr. Amos testified he had to wait about two months before seeing a doctor. Once

Goodman authorized treatment, Mr. Amos saw Dr. Cyrus Ghavam, the authorized doctor

from his 2010 claim. Mr. Amos confirmed that Goodman provided all his recent medical

treatment, including cervical surgery, under the open medical provision of his 2010

injury. When the MRI ordered by Dr. Ghavam showed a herniated disc at the C3-4 disc

level, a different level than that involved in his prior claim, Mr. Amos realized he had a

new injury.

Mr. Amos agreed on cross-examination that the delay in starting treatment was

actually about three weeks and that the delay was the result of Goodman having to

retrieve his original workers’ compensation file from storage. He also confirmed that the

onset of his pain and numbness occurred at home. Mr. Amos admitted he felt no

symptoms while at work and there was no specific injury incident. He agreed with a

statement contained in his affidavit that he initially asked for treatment under his open

medical settlement. He testified he did not know he had a new injury until Dr. Ghavam

performed the MRI.

Terri Owens is the claims manager for Goodman. She testified that Mr. Amos

informed her on October 26, 2015, that he was having another flare-up and needed to

return to the doctor. She told him the file was probably in archives and it would take a

couple of weeks to retrieve it. Once the claims adjuster recovered the file, Goodman

made Mr. Amos an appointment with Dr. Ghavam.

Records from The Orthopedic Center show that Mr. Amos first returned to Dr.

Ghavam on November 18, 2015, with complaints of neck and arm pain and weakness.

Imaging studies showed a solid fusion at C4-5 from the prior injury. Dr. Ghavam

ordered a cervical MRI and instructed Mr. Amos to remain off work. On December 23,

Dr. Ghavam noted the MRI showed stenosis at C3-4, “which to some extent is

accelerated by the C4-5 fusion.” He prescribed physical therapy and work restrictions.

At Mr. Amos’ follow-up visit on February 3, 2016, Dr. Ghavam noted: “He has

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developed significant junctional stenosis above his fusion. The contribution to this

degenerative change is about 3% a year from the prior fusion level and about 25%

likelihood of adjacent segment pathology within ten years. His surgery was about five to

six years ago.” Dr. Ghavam recommended anterior cervical disc fusion surgery. (Ex. 6.)

Mr. Amos returned to Dr. Ghavam on March 30, 2016, for post-surgical follow-

up. Dr. Ghavam felt he was doing well and noted:

There has been issue as to whether the C3-4 was related to the initial injury

or whether there was a separate injury. Early on, I was not advised that

there had been a second injury or did not document it. Mr. Amos identifies

that he was injured a second time either in late October or early November

2015, at which time he developed increased recurrence of symptoms. The

initial surgery was in 2010 when I did the C4-5 ACDF. The second injury,

if in fact was documented, would more likely be the causative factor for his

recent surgery.

Dr. Ghavam kept Mr. Amos off work and told him to return in six to eight weeks. (Ex.

2.)

On May 18, 2016, Dr. Ghavam noted Mr. Amos was doing well and returned him

to work. He also stated:

As an administrative matter, I apparently made an error in terms of his

injury. The initial injury that he sustained was on 09/09/2010, and I treated

the C4-5 level at that time. He had a new injury that occurred in October

2015, which resulted in the C3-4 level becoming herniated and requiring

surgical treatment. My understanding is that we have attributed all of his

injuries to his first injury, but in fact the C4-5 level is related to the

09/09/2010 injury and the C3-4 level is related to the new injury that

occurred in 2015.

(Ex. 3.)

Mr. Amos filed a Petition for Benefit Determination seeking temporary disability

benefits. The parties did not resolve the disputed issues through mediation, the

Mediating Specialist filed a Dispute Certification Notice, and Mr. Amos filed a Request

for Expedited Hearing.

At the Expedited Hearing, Mr. Amos asserted he is entitled to temporary total

disability benefits for the time he missed work due to his surgery and recovery. He

contended that, because his C3-4 disc herniation was not present during his 2010 medical

treatment, it represents a new compensable injury.

3

Goodman contended Mr. Amos is not entitled to any workers’ compensation

benefits for his alleged 2015 injury. It argued that his condition is merely a continuation

of his prior injury, and Goodman has continued to provide treatment for that injury

pursuant to the terms of the settlement agreement. Goodman insisted it received no

notice of any new injury and argued that Mr. Amos cannot meet his burden of proving his

injury arose primarily out of and in the course and scope of his employment.

Findings of Fact and Conclusions of Law

The following legal principles govern this case. Because this case is in a posture

of an Expedited Hearing, Mr. Amos need not prove every element of his claim by a

preponderance of the evidence in order to obtain relief. McCord v. Advantage Human

Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9

(Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). Instead, he must come forward with

sufficient evidence from which this Court might determine he is likely to prevail at a

hearing on the merits. Id.; Tenn. Code Ann. § 50-6-239(d)(1)(2015).

To prove a compensable injury, Mr. Amos must show that his alleged injury arose

primarily out of and in the course and scope of his employment. Id. at § 50-6-102(14).

To do so, he must show an incident, or specific set of incidents, identifiable by time and

place of occurrence caused his injury. Id. at § 50-6-102(14)(A). Further, he must show,

“to a reasonable degree of medical certainty that it contributed more than fifty percent

(50%) in causing the . . . disablement or need for medical treatment, considering all

causes.” Id. at § 50-6-102(14)(C). “Shown to a reasonable degree of medical certainty”

means that, in the opinion of the treating physician, it is more likely than not considering

all causes as opposed to speculation or possibility. Id. at § 50-6-102(14)(D).

Applying these principles to the facts of this case, the Court cannot find Mr. Amos

appears likely to meet his burden of proof. He testified there was no specific injury or

incident at work that caused his symptoms. Under these circumstances, Mr. Amos has

not presented any evidence of an incident, or specific set of incidents, identifiable by time

and place of occurrence. Further, while the statute contemplates compensable injuries

that are the result of gradual or cumulative events or trauma, Mr. Amos presented no

proof of any such activities. Instead, he testified that the onset of his symptoms occurred

at home and he did not even realize he had a new injury until he had an MRI.

Mr. Amos also failed to meet the requirements of the second part of the analysis –

medical proof that his work was the primary cause of his injury. While Dr. Ghavram

attributed the C3-4 level “to the new injury that occurred in 2015,” he did not identify the

injury or suggest it occurred at Mr. Amos’ work.

The Court found Mr. Amos to be credible and truthful. It also understands why he

4

would believe the new disc herniation must be the result of a new work injury. However,

the Court cannot infer, from the mere existence of an injury, that the injury arose

primarily out of Mr. Amos’ employment.

Therefore, the Court holds, as a matter of law, Mr. Amos has not come forward

with sufficient evidence that he is likely to prevail at a hearing on the merits. The Court

denies his request for temporary disability benefits at this time.

IT IS, THEREFORE, ORDERED as follows:

1. Mr. Amos’ claim against Goodman and its workers’ compensation carrier for the

requested temporary disability benefits is denied.

2. This matter is set for an Initial (Scheduling) Hearing on December 20, 2016, at

10:30 a.m.

ENTERED this the 20th day of October, 2016.

_____________________________________

Judge Dale Tipps

Court of Workers’ Compensation Claims

Initial (Scheduling) Hearing:

An Initial (Scheduling) Hearing has been set with Judge Dale Tipps, Court of

Workers’ Compensation Claims. You must call 615-741-2112 or toll free at 855-

874-0473 to participate.

Please Note: You must call in on the scheduled date/time to

participate. Failure to call in may result in a determination of the issues without

your further participation. All conferences are set using Central Time (CT).

Right to Appeal:

Tennessee Law allows any party who disagrees with this Expedited Hearing Order

to appeal the decision to the Workers’ Compensation Appeals Board. To file a Notice of

Appeal, you must:

1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal.”

5

2. File the completed form with the Court Clerk within seven business days of the

date the Workers’ Compensation Judge entered the Expedited Hearing Order.

3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

4. The appealing party is responsible for payment of a filing fee in the amount of

$75.00. Within ten calendar days after the filing of a notice of appeal, payment

must be received by check, money order, or credit card payment. Payments can be

made in person at any Bureau office or by United States mail, hand-delivery, or

other delivery service. In the alternative, the appealing party may file an Affidavit

of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing

fee. The Affidavit of Indigency may be filed contemporaneously with the Notice

of Appeal or must be filed within ten calendar days thereafter. The Appeals Board

will consider the Affidavit of Indigency and issue an Order granting or denying

the request for a waiver of the filing fee as soon thereafter as is

practicable. Failure to timely pay the filing fee or file the Affidavit of

Indigency in accordance with this section shall result in dismissal of the

appeal.

5. The parties, having the responsibility of ensuring a complete record on appeal,

may request, from the Court Clerk, the audio recording of the hearing for the

purpose of having a transcript prepared by a licensed court reporter and filing it

with the Court Clerk within ten calendar days of the filing of the Expedited

Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of

the evidence within ten calendar days of the filing of the Expedited Hearing

Notice of Appeal. The statement of the evidence must convey a complete and

accurate account of what transpired in the Court of Workers’ Compensation

Claims and must be approved by the workers’ compensation judge before the

record is submitted to the Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory

appeal, the appellant shall file such position statement with the Court Clerk within

five business days of the expiration of the time to file a transcript or statement of

the evidence, specifying the issues presented for review and including any

argument in support thereof. A party opposing the appeal shall file a response, if

any, with the Court Clerk within five business days of the filing of the appellant’s

position statement. All position statements pertaining to an appeal of an

interlocutory order should include: (1) a statement summarizing the facts of the

case from the evidence admitted during the expedited hearing; (2) a statement

summarizing the disposition of the case as a result of the expedited hearing; (3) a

statement of the issue(s) presented for review; and (4) an argument, citing

appropriate statutes, case law, or other authority.

6

APPENDIX

Exhibits:

1. Affidavit of Harvey Amos

2. March 30, 2016 TOC record

3. May 18, 2016 TOC record

4. August 10, 2011 Order Approving Settlement

5. Wage Statement

6. Records of Dr. Cyrus Ghavam

7. Letters from Daryl Weir and Victor Dixon (Identification Only)

Technical record:2

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing

2

The Court did not consider attachments to Technical Record filings unless admitted into evidence during the

Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as

allegations unless established by the evidence.

7

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Expedited Hearing Order

Denying Requested Benefits was sent to the following recipients by the following

methods of service on this the 20th day of October, 2016.

Name Certified Via Via Service sent to:

Mail Fax Email

Harvey Amos X 25 Plada Heights Rd.

Fayetteville, TN 37334

Peter Rosen, Esq. X prosen@levineorr.com

_____________________________________

Penny Shrum, Clerk of Court

Court of Workers’ Compensation Claims

WC.CourtClerk@tn.gov

8

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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