Opinion

Hanna, Emad v. Gaylord Opryland d/b/a Marriott International

  • 2022 TN WC App. 24
Court
Tennessee Workers' Compensation Appeals Board
Filed
Jun 14, 2022
Status
Published
On the bench
Pele I. Godkin, Timothy W. Conner
Cited by
0 cases
Authority
More cited than 8.8%

The opinion

FILED

Jun 14, 2022

02:22 PM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Emad Hanna ) Docket No. 2019-06-2116

)

v. ) State File No. 21526-2019

)

Gaylord Opryland d/b/a Marriott )

International, et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Kenneth M. Switzer, Chief Judge )

Affirmed and Certified as Final

The employee alleged he sustained a compensable aggravation of a preexisting condition

while working as a banquet server for the employer. Following an expedited hearing, the

trial court denied the employee’s request for benefits after concluding the employee had

not presented sufficient proof such that the trial court could conclude he would likely

prevail at a compensation hearing. That decision was not appealed, and the parties

proceeded to trial. Following a compensation hearing, the trial court found that the

employee had failed to meet his burden of proving by a preponderance of the evidence that

his current condition or need for medical treatment were primarily caused by the

employment. The employee has appealed. Having carefully reviewed the record, we

affirm the trial court’s decision and certify the trial court’s order as final.

Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding Judge

Timothy W. Conner joined.

Emad Hanna, Mt. Juliet, Tennessee, employee-appellant, pro se

Travis Ledgerwood, Nashville Tennessee, for the employer-appellee, Gaylord Opryland

d/b/a Marriott International

Factual and Procedural Background

On March 20, 2019, Emad Hanna (“Employee”) was working as a banquet server

for Gaylord Opryland d/b/a Marriott International (“Employer”) when he described feeling

tingling down his neck and into his right arm and fingers after scooping ice cream for

1

approximately one hour and thirty minutes. Employee reported his symptoms to Employer

and was seen by an on-site nurse, who provided pain medication.

Two days later, on March 22, Employer provided a panel of physicians and

Employee selected Dr. Robert Carver as his authorized treating physician. Employee was

evaluated by Dr. Carver the same day and provided a history of “[right] arm pain and hand

numbness after scooping ice cream for 2500 people.” Employee described “right upper

shoulder pain, tenderness and tingling radiating into the first two or three fingers,” and Dr.

Carver diagnosed Employee with right trapezius strain, subacromial bursitis of the right

shoulder, and cervical spondylosis without myelopathy. Dr. Carver prescribed pain

medication, referred Employee to physical therapy, and returned him to work without

restrictions.

Employee was next seen by Dr. Carver on March 25 and reported no improvement.

Medical records reflect Employee was concerned with “tingling” in his first two fingers

and reported that his pain medication was not helping. Dr. Carver administered a

subacromial bursa injection but stated that he “suspect[ed] that the majority of

[Employee’s] symptoms [were] due to muscle ‘soreness’ rather than an injury.” He noted

the subacromial injection was for subacromial bursitis, “possibly due to side sleeping, but

there is the potential for a bursitis from his mechanism [of alleged injury].” On April 1,

Employee returned to Dr. Carver and reported “having shock like pains for 3 days.” In a

follow-up appointment on April 3, he complained of right arm pain and stated he “had 0%

improvement and that his arm is now worse.” Employee reported experiencing a “shocking

sensation from his shoulder to his fingertips” every 15 minutes that lasted 30 to 35 seconds.

Dr. Carver noted that Employee’s “[t]rapezius soreness that persists beyond 2 weeks/6

therapy visits is more likely related to the cervical spondylitic change than to scooping ice

cream for over an hour.” Dr. Carver advised Employee to complete his final therapy

sessions and planned to release him at the next office visit.

Employee was next seen by Dr. Carver on April 11 and stated he was the “same”

since his injury. Dr. Carver noted Employee had completed six therapy visits, and therapy

notes indicated his rehab potential was “poor.” Dr. Carver “[r]ediscussed etiology and

relation to chronic condition (spondylosis) not work injury” and opined Employee had

reached maximum medical improvement. He released Employee from care, returned him

to full duty work, and recommended he seek further medical care with a primary care

physician for evaluation and treatment of his spondylosis and radiculopathy of his neck.

Following his release, Employee sought treatment on his own with Dr. Amir Abtahi

at Vanderbilt University Medical Center, who obtained objective studies that revealed

cervical degenerative changes. 1 Dr. Abtahi provided conservative treatment, and on

1

Employer requested that Dr. Carver review Dr. Abtahi’s medical records and provide a causation opinion

in September 2019. That opinion is not contained in the record on appeal, but the trial court’s order

2

October 8, 2019, Employee reported no pain in the upper extremity but complained of

continued numbness. Dr. Abtahi made no additional recommendations and advised

Employee that he could follow up on an as-needed basis.

On October 30, 2019, Employee filed a petition for benefit determination.

Subsequently, during a status conference, Employer agreed to provide a panel of

orthopedic physicians from which Employee selected Dr. Sean Kaminsky. In June 2020,

Dr. Kaminsky evaluated Employee, obtained x-rays of his cervical spine, and completed a

Standard Form Medical Report for Industrial Injuries (“Form C-32”) on June 26, 2021. On

the Form C-32, Dr. Kaminsky opined that he did not find any work-related aggravation of

a preexisting condition, that Employee sustained no permanent impairment caused by a

work injury, and that Employee’s cervical condition and need for medical treatment did

not arise primarily from his employment.

In September 2020, Employee returned to Dr. Abtahi with complaints of thumb

numbness. Dr. Abtahi placed him at maximum medical improvement with no permanent

impairment or restrictions. Thereafter, an expedited hearing was held to determine if

Employee was entitled to receive additional medical treatment for his alleged work-related

injuries. On October 15, 2020, the trial court denied Employee’s request and concluded

that Employee was unlikely to prove at a compensation hearing that his neck condition was

work-related. That order was not appealed.

In May 2021, Dr. Abtahi completed a Form C-32, and in October 2021, Employer

deposed him. 2 During his deposition, Dr. Abtahi testified that Employee had aggravated a

preexisting condition and that his “symptoms began after this incident at work while

scooping ice cream.” He stated that this “represented an exacerbation of an underlying

condition, and the exacerbation is what required treatment.” Dr. Abtahi opined this was a

“temporary aggravation” and confirmed Employee had no anatomical change or permanent

advancement of his cervical spine condition as a result of the March 20, 2019 work

incident. When questioned, Dr. Abtahi agreed that any future medical treatment Employee

may need for his cervical spine would be primarily due to his preexisting degenerative

conditions and not the March 20 incident. Dr. Abtahi was also asked about Dr. Kaminsky’s

opinion in the following exchange:

Q: Doctor, Dr. Sean Kaminsky has evaluated [Employee]. And he

provided us with an opinion which stated that the degenerative

changes in the cervical spine pre-dated the ice cream incident at work,

indicates that Dr. Carver concluded Employee had cervical spondylosis, and he noted that an MRI revealed

“chronic degenerative changes.” The court’s order further reflects that, when asked whether Employee’s

diagnoses and need for medical treatment arose primarily out of the reported work injury, Dr. Carver

indicated they did not.

2

Dr. Abtahi recommended that Employee obtain an FCE in the Form C-32, but this was never done.

3

and he found there was no permanent aggravation of the pre-existing

condition.

Do you agree with Dr. Kaminsky’s opinion on this matter?

A: Yes.

In addition, Dr. Abtahi testified that Employee’s thumb numbness stemmed from

Employee’s “degenerative chronic cervical spine condition” and that, although it was

exacerbated by Employee’s work incident, “the primary underlying pathology is, in fact,

the underlying degenerative changes.”

After a March 1, 2022 trial, the court issued a written order in which it concluded

Employee provided no medical evidence that his current condition arose primarily out of

his employment or that he suffered a permanent impairment due to the work incident.

Because Employee failed to show by a preponderance of the evidence that he suffered a

compensable permanent disability as a result of his work-related injury, his claim for

additional benefits, including permanent disability benefits and medical benefits, was

denied. Employee has appealed.

Standard of Review

The standard we apply in reviewing a trial court’s decision presumes that the court’s

factual findings are correct unless the preponderance of the evidence is otherwise. See

Tenn. Code Ann. § 50-6-239(c)(7) (2021). When the trial judge has had the opportunity

to observe a witness’s demeanor and to hear in-court testimony, we give considerable

deference to factual findings made by the trial court. Madden v. Holland Grp. of Tenn.,

Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need be

afforded the trial court’s findings based upon documentary evidence.” Goodman v.

Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.

Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of

statutes and regulations are questions of law that are reviewed de novo with no presumption

of correctness afforded the trial court’s conclusions. See Mansell v. Bridgestone Firestone

N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are also mindful of our

obligation to construe the workers’ compensation statutes “fairly, impartially, and in

accordance with basic principles of statutory construction” and in a way that does not favor

either the employee or the employer. Tenn. Code Ann. § 50-6-116 (2021).

Analysis

In his notice of appeal, Employee contends, in part, that he “hope[s] to achieve

justice” after he “lost a sense at two finger[s] from three years ago . . . [and] I want the

court to present me to a medical expert to prove my case.” As an initial matter, we note

4

that Employee is self-represented in this appeal, as he was in the trial court. Parties who

decide to represent themselves are entitled to fair and equal treatment by the courts.

Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000). However, as

explained by the Court of Appeals,

courts must also be mindful of the boundary between fairness to a pro se

litigant and unfairness to the pro se litigant’s adversary. Thus, the courts

must not excuse pro se litigants from complying with the same substantive

and procedural rules that represented parties are expected to observe. . . . Pro

se litigants should not be permitted to shift the burden of the litigation to the

courts or to their adversaries.

Hessmer v. Hessmer, 138 S.W.3d 901, 903-04 (Tenn. Ct. App. 2003) (citations omitted).

Employee has not filed a brief on appeal and has not identified any appealable issues

or explained how he believes the trial court erred in its rulings. Although Employee sent

the Appeals Board Clerk a brief email in support of his appeal, we are unable to discern

any factual or legal issues for review in this correspondence. As stated by the Tennessee

Supreme Court, “[i]t is not the role of the courts, trial or appellate, to research or construct

a litigant’s case or arguments for him or her.” Sneed v. Bd. of Prof’l Responsibility of the

Sup. Ct. of Tenn., 301 S.W.3d 603, 615 (Tenn. 2010). Indeed, were we to search the record

for possible errors and raise issues and arguments for Employee, we would be acting as his

counsel, which the law clearly prohibits. Webb v. Sherrell, No. E2013-02724-COA-R3-

CV, 2015 Tenn. App. LEXIS 645, at *5 (Tenn. Ct. App. Aug. 12, 2015). As mandated by

Tennessee Code Annotated section 50-6-239(c)(7), we must presume the trial court’s

factual findings are correct, unless the preponderance of the evidence is otherwise.

Here, the trial court noted that Employee was a “forthright and credible witness.”

The court further found that Employee experienced symptoms in his neck, right arm, and

fingers while working for Employer but explained that work-relatedness was “the threshold

issue.” In considering expert medical opinions, the trial court first noted that Dr.

Kaminsky, who was authorized by Employer, saw Employee only once but opined that his

condition and need for medical treatment did not arise primarily out of his employment. 3

In contrast, Dr. Abtahi followed Employee over the course of six months and saw him four

times. The court placed greater weight on the opinion of Dr. Abtahi, who testified that

scooping ice cream aggravated Employee’s underlying condition; however, the court noted

that Dr. Abtahi testified that Employee’s aggravation was temporary and resulted in no

anatomical change. As a result, the court concluded that neither physician’s opinion

supported the additional relief sought by Employee. 4 We agree.

3

The trial court noted that, because he was selected from a panel, Dr. Kaminsky’s causation opinion was

presumed correct. See Tenn. Code Ann. § 50-6-102(14)(E).

4

Employee offered no admissible proof of unpaid medical expenses causally related to the work incident.

5

Finally, Employer contends Employee’s appeal is frivolous and requests costs

and/or attorneys’ fees. Specifically, Employer asserts, in part, that Employee “failed to file

a trial brief or any documentation indicating his specific issue or issues” with the trial

court’s ruling and that his appeal is “clearly devoid of merit.” Further, Employee

“formulated no arguments stating his basis for the appeal.” A frivolous appeal is one that

is devoid of merit or brought solely for delay. Yarbrough v. Protective Servs. Co., Inc.,

No. 2015-08-0574, 2016 TN Wrk. Comp. App. Bd. LEXIS 3, at *11 (Tenn. Workers’

Comp. App. Bd. Jan. 25, 2016). Litigants “should not be required to endure the hassle and

expense of baseless litigation. Nor should appellate courts be required to waste time and

resources on appeals that have no realistic chance of success.” Id. at *10-11 (citations

omitted). We conclude Employee’s appeal is devoid of merit and is frivolous. However,

we exercise our discretion not to award attorneys’ fees or other expenses for Employee’s

frivolous appeal. See Tenn. Comp. R. & Regs. 0800-02-22-.09(4) (2020).

Conclusion

For the foregoing reasons, we affirm the decision of the trial court and certify it as

final. Costs on appeal are taxed to Employee.

6

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Emad Hanna ) Docket No. 2019-06-2116

)

v. ) State File No. 21526-2019

)

Gaylord Opryland d/b/a Marriott )

International, et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Kenneth M. Switzer, Chief Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced

case was sent to the following recipients by the following methods of service on this the 14th day

of June, 2022.

Name Certified First Class Via Via Sent to:

Mail Mail Fax Email

Emad Hanna X taimour2008@yahoo.com

Travis Ledgerwood X tledgerwood@morganakins.com

plunny@morganakins.com

Kenneth M. Switzer, Chief Judge X Via Electronic Mail

Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov

Workers’ Compensation Claims

Olivia Yearwood

Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B

Nashville, TN 37243

Telephone: 615-253-1606

Electronic Mail: WCAppeals.Clerk@tn.gov

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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.