                                            FiLED IN
                                     5TH COURT OF APPEALS

                                     I5 fPR 2g PH g: gO
     CAUSE NO. QS-14-O151O-CV
                                     LISA &‘STZ. CIR<

               IN THE
      FIFTH COURT OF APPEALS
            DALLAS, TEXAS


          TRENTS. GRIFFIN
             Appellant,

                       V.

AMERICAN ZURICH INSURANCE COMPANY
              Appellee.



         On appeal from the
         101st District Court of
          Dallas County, Texas




          APPELLANT’S BRIEF




          Trent S. Griffin, Sr.
         724 Meandering Dr.
        Cedar Hill, Texas 75104
          Tel. 469-337-0598

     TRENT S. GRIFFIN, SR., PRO SE
              APPELLANT
                       CAUSE ND. 05-14-01510-CV

                          TRENT S. GRIFFIN, SR.
                              Appellant,

                                    V.


                   American Zurich Insurance Company,
                                Appellee.




                  I. IDENTITY OF PARTIES AND COUNSEL
1. Trent S. Griffin, Appellant, Pro se
   724 Meandering Drive
   Cedar Hill, Texas 75104
   Tel. 469-337-0598
2. American Zurich Insurance Company, Appellee
   Corporation Service Company
   211 East 7th Street, 44 620
   Austin, Texas 78701-3218
3. THE SILVERA FIRM
   Attorney Todd Richards, Appellee’s Counsel
   1015 Providence Towers East
   5001 Spring Valley Road
   Dallas, Texas 75244
   Tel. 972-715-1750
  Fax 972-715-1759
  DSILVERA@SILVERALAW.COM
                             II. TABLE OF CONTENTS



                                                                         Page
I.      Identity of Parties and Counsel
II.     Table of Contents                                                ii
Ill.    Index and Authorities                                            iv
IV.      Statement of Case                                               1
V.      Statement Regarding Oral Argument                                    2
VI.      Issues Presented                                                3
VII.    Statement of Facts                                               4
VIII.   Summary of Argument                                              9
IX.     Argument                                                         10
        A.   A “no evidence” partial summary judgment was granted
             without notice of hearing or submission date of a summary
             judgment motion by the court or appellee                  10

        B.   A “no evidence” partial summary judgment was granted
             prematurely before close of discovery pursuant Rule 190.3
             (level 2) ordered by Judge Martin Lowy                    10

        C.   A traditional summary judgment was granted without
             notice of the hearing or submission date of a summary
             judgment motion by the court or appelle                         10

        D.   A traditional summary judgment was granted prematurely
             before the close of discovery pursuant Rule 190.3 (level 2)
             ordered by Judge Martin Lowy                                15

        E.   Appellant was deprived of any right to seek leave to file
             affidavits or other written response                         10
                                       II
      F.   Trial court abused its discretion failing to draw every possible
           inference favorable for appellant on its merits of the claims
           and try each issue of fact and law in the manner that applies
            to other civil suits before granting summary judgment          10

      C.   Appelle failed to conclusively negate all elements of the
           appellant’s claims to raise a genuine issue of material fact
           as a matter of law                                           10

      H.   Trial court erred in granting summary judgment, by
           allowing appellee to file into record inadmissable
           evidence, ie. expert testimony, peer review and state
           action or nature of that action                                15

      I.   Trial court abuse its discretion, failing to follow Texas Labor
           Codes and Government Codes                                      15

      J.   Trial court abused its discretion granting a “no evidence”
           partial summary judgment and summary judgment without
           finding of facts and conclusion of law                     15


X.    Prayer                                                             19
Xl.   Appendix     attached                                               21




                                     III
                         III. INDEX AND AUTHORITIES

                                                                           Page
Cases
Allen v. A & T Transp. Co. Inc., 79 S.W.3d 65, 68
(Tex. App.---Texarkana 2002, pet. denied)                          13
Alexander v. Lockheed Martin Corporation, 188 S.W.3d 348
(Tex. App.---Forth Worth 2006, pet. denied)                        12
Bado Equipment Co., Inc. v. Ryder Truck Lines, 612 S.W.2d
81, 83 (Civ. App.---Houston [14th Dist.] 1981, n.r.e.)             14
Barraza v. Eureka Co., 25 S.W.3d 225, 231
(Tex. App.---EI Paso 2003, no pet.)                                11
Continental Casualty Insurance Insurance Company v.
Williamson, 971 S.W.2d 108 (Tex. App.---Tyler 1998, no pet.)        12
Dewoody v. Rippley, 951 S.W.2d 935, 943-944
(Tex. App.---Forth Worth 1997, dis. agr.)                          14
Dickson v. State Farm Lloyds, 944 S.W.2d 666, 667
(Tex. App.---Corpus Christi 1997, no writ)                         14
Garcia v. Peeples, 734 S.W.2d 343, 347 (Tex. 1987)                 15
Guevara v. Ferrer, 247 S.W.3d 662 (2007)                           15,16
Harrill v. A.i. ¶s Wrecker Service, Inc., 27 S.W.3d 191, 193-194
(Tex. App.---DaIIas 2000, pet. dism’d w.o.j.)                      11
Hildago v. Surety Savings and Loan Association, 462 S.W.2d
540, 543 n.1 (Tex. 1971)                                           14
In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998)       15
Japole v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984)                  15
Jeter v. McGraw, 79 S.W.3d 211, 214
(Tex. App.---Beaumont 2002, pet. denied)                            11,13
                                       Iv
Krueger v. Atascosa County, 155 S.W.3d 614
(Tex. App.---San Antonio 2004, no pet.)                            12
Lopez v. Zenith Insurance Company, 229 S.W.3d 775
(Tex. App.---Eastland 2007, pet. denied                         12
MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986)               11
Martin v. Martin, Martin & Richards, Inc., 989 5.W.2d 357, 359
(Tex. 1998)                                                    13
May v. Nacoqdoches Memorial Hosp., 61 S.W.3d 623, 626-627
(Tex. App.---Tyler 2002, no pet                           13
McGiIliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986)        15
Nowak’v. DAS mv. Corp., 110 S.W.3d 677, 680
(Tex. App. [14th Dist.] 2003, no pet.)                         11
Nixon Mr. Property Management 690 S.W.2d 546, 548
      b’.


(Tex. 1985)                                                   11
Okoli v. Texas Dept. of Human Services, 117 S.W.3d 477, 479
(Tex. App.---Texarkana 2003, no pet.)                          13
Rios v. Texas Bank, 948 S.W.2d 30, 32-33, n.4
(Tex. App.---Houston [14th Dist.] 1997, no writ)               13
Science Spectrum, Inc. v. Martinez, 941 5.W.2d 910, 911
(Tex. 1997)                                                   13
Smithkline Beecham Corp. v. Doe, 903 S.W.2d 347, 355
(Tex 1995)                                                    14
The Ryland Group, Inc v. Hood, 924 S.W.2d 120, 122
(Tex. 1996)                                                   17
Tom L. Scott, Inc. v. Mcllhany, 798 S.W.2d 556, 559
(Tex. 1990)                                                   15
Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 338
(Tex. 1998)                                                 15
                                      V
Walker tc Packer, 827 S.W.2d 833, 842 (Tex. 1992). 15
William v. Glash, 789 S.W.2d 261, 264 (Tex. 1990)            11
Zurich American Insurance Company v. Gill, 173 S.W.3d 878
(Tex. App.---Forth Worth 2005, pet. denied)                  12


Appeals Panel Decisions
APPEAL NO. 94224                                            12,18
APPEALS NO. 002920                                          12,18
APPEALS NO. 020375                                          12
APPEALS NO. 032608                                          16
APPEALS ND. 032668                                          17
APPEALS NO.051656                                           unused
APPEALS NO. 080730                                          12,17,18
APPEALS NO. 111710                                          18,19
APPEALS NO. 120253                                          15,16,18
APPEALS NO. 120383                                          16,18
APPEALS NO. 130808                                          18


Statutes

GOVT CODE 2001.173 etseq                                    10,14
TEX. ADMIN. CODE 124.1(a)                                   12
TEX. ADMIN. CODE 124.3(a)(1), (a)(2),(c)(2)                 12
TEX. LAB. CODE 401.001 et esq                                10-19
TEX. LAB. CODE 408.001 etseq                                 10-19
                                     vi
TEX. LAB. CODE 409.001 et seq   .12,17,18
TEX. LAB. CODE 410.002 etseq    10-19


Rules
TEX. R. CIV. P. 21a             12,13
TEX. R. CIV. p. 145             5
TEX. R. CIV. P. 166a            10,
TEX. R. CIV. P. 166a(c)         10,11,14
TEX. R. CIV. P. 166a(g)         13
TEX. R. CIV. P. 166a(i)          10,
TEX. R. CIV. P. 185              14
                            IV. STATEMENT OF CASE
         Appellant, Trent S. Griffin, prose files this appellant’s brief for a
decision and final judgment of the trial court. The case explicitly involved a
Trial De Novo Review of a work injury sustained by the appellant and the
decision of the Texas Department of Insurance, Division of Workers’
Compensation, hereafter referred to in this appellant’s brief as the
“Agency” and, American Zurich Insurance Company, Appellee. Appellant
sought trial de novo review of the decision. Appellant initially filed his suit
against American Zurich Insurance Company and the “Agency.” Ergo, the
trial court dismissed the claim against the agency for lack of subject-matter
jurisdiction or plea to jurisdiction. Moreover, appellant’s claims sought for
extent of injury which included a 5mm left paramedian protrusion
(herniated disc), cervical radiculitis/radiculopathy and not at maximum
medical improvement. Appellee American Zurich Insurance Company filed a
general denial, disputing the extent of injury and denied all alleged facts.
Moreover,the insurance carrier presented a defense comprised of the
agency’s process and decision, with the affirmed decision of the Appeals
Panel that failed to act on a decision and order of the agency when the
Appellee waived its rights to contest compensability of work injury that was
accepted as compensable.This was presented to the Appeals Panel.
The trial court disposed of the Appellant’s claims by a “no evidence”
partial summary judgment and traditional summary judgment. Trial court
abused its discretion in its decision by failing to be a finder of fact and
conclusion of law, as a matter of law based on the merits of the case and


                                        1
other civil cases similar in nature and operative facts. Trial court abused its
discretion by failing to draw all inferences in favor of the appellant before
granting summary judgment. Appellee failed to negate all elements of the
appellant’s claims. Additionally, the trial court allowed inadmissable
evidence and testimony presented in the agency’s decision, ergo abusing its
discretion. Furthermore, trial court abused its discretion by not following
the Texas Labor Codes and laws, and Government Codes in review of the
erroneous decision by the agency. Moreover, trial court deprived the
appellant Trent S. Griffin of any opportunity to present summary judgment
evidence, affidavits or response to the movants “no evidence” summary
judgment. Upon receipt of a decision against the Appellant, immediately a
request for finding of fact and conclusion of law was presented to the trial
court. Following the request, Appellant submitted a motion for new trial
and an affidavit and any defects were not deliberate or intentional, but that
of inadvertance, mistake or mischance.


               V. STATEMENT REGARDING ORAL ARGUMENT
        Appellant states it is not necessary for any oral arguments. This
case is not a difficult case to decide based on the Texas Labor Codes and
laws, the timing and proximate cause of the injury, the facts that are
alleged in the appellant’s brief and clerks records. If the Court find it
necessary for the appellant to appear for oral argument to explain or
present oral argument, the Appellant is more than willing and able. The
Clerk’s record and this brief is sufficient in application of finding of facts and


                                        2
conclusion of law to satisfy judgment in favor of the appellant.


                            VI. ISSUES PRESENTED
        Appellant presents the following issues associated with this case.
This case involved liability and compensability issues which include, timely
contest by Insurance Carrier(IC), Date of Injury (DCI), compensability!
injury (existence), and Extent of Injury (EOI), Income Benefit (IB), Medical
Benefits (MB), Procedural, Spinal, Wage, Maximum Medical Improvement
(MMI), and Impairment Rating (IR) Issues The trial court abused its
                                            .




discretion from the initial filing of the complaint. The appellant filed an
affidavit and complaint simultaneously allowing for service of process to
the Appellee and agency in accordance with Texas Rules of Civil Procedures.
The Agency appeared and Appellee was a no show, as it were in the Benefit
Review Conference. The Appellee failed to present an affirmative defense
against all elements of the appellant’s claims. The trial court erred by not
enforcing or allowing for a signed uniform scheduling order for mediation.
Additonally, trial court abused its discretion favorable to the Appellee in
discovery, and not allowing an opportunity for discovery for the Appellant.
Trial court abused its discretion by allowing inadmissable evidence, ie. peer
review, without a request from Agency for newly discovered evidence that
was presented after waiving its rights to contest a compensable injury and
expert testimony. Additionally, the trial court erroneously granted a “no
evidence” partial summary judgment and summary judgment in favor of
the appellee without drawing every inference favorable for the Appellant.


                                        3
Further, the Appellee and the trial court failed to notice the Appellant of a
notice of hearing date or notice of submission for summary judgment
hearing date. Furthermore, the granting of the “no evidence” partial
summary judgment and summary judgment deprived the Appellant of
any rights to submit affidavits or a response to present a genuine issue of
material fact or present summary judgment evidence. Moreover, the
trial court erred by not following the Texas Labor Codes and laws, and
Government Code in a [tjrial de novo review. Trial court abused its
discretion, failing to draw inferences for finding of facts and conclusion of
law in favor of the non-movant. The Appellant’s complaint and all alleged
facts were to be considered as true, but the trial court erred by granting a
“no evidence” partial summary judgment and summary judgment that
failed to negate all the elements of each of the Appellant’s claims. Appellee
has avoided liablility of the Appellant’s injury for nearly three(3) years, since
the late filing of the notice of refused/disputed claim by the insurance
carrier, American Zurich Insurance Company.


                          VII. STATEMENT OF FACTS
        On May 29th, 2013 Appellant filed his original petition
simultaneously submitting an affidavit of indigency [CR 5-14,18-20]. This
affidavit was submitted due to the inability to pay. A letter was received
contesting the inability to pay, noting the Appellant will be notified of a
hearing date [CR 21]. On June 28, 2013 , clearly more than twenty days, the
Agency filed an affirmative defense plea of jurisdiction for sovereign


                                       4
immunity. On July 22, 2013, a plea to jurisdiction was filed by the Agency
and a hearing date for submission was set for July 26th, 2013 [CR 28]. An
order was singed on July 26th, 2015 granting the agency plea of jurisdiction
and dismissing the appellant’s case against the agency [CR 30]. Ergo, the
Appellant was not afforded an opportunity to present any material facts or
genuine issues because the appellant was informed there was no need to
wait until this afternoon. Judge Martin Lowy intended to rule against the
Appellant [RR 1-6]. Moreover, Appellee was a no show, and Judge Martin
Lowy informed Appellant, “there was improper service upon the Appellee
“[RR 4]. Inherently, when an affidavit is filed, the clerk must docket the
action, issue citation and provide such other customary services as are
provided any party Yet, there was a representative in the court for
Appellee and the Agency received service. It was apparent, Judge Martin
Lowy had demonstrated abuse of discretion. On August 22, 2013, Appellee
filed an answer to the Appellant’s original complaint filed on May 29, 2013
[CR 31-32]. Appellee’s original answer failed to raise a genuine dispute and
material of fact to be granted a “no evidence” partial summary judgment

and summary judgment. Ergo, the Appellant’s original complaint was filed
pursuant “[t]rial de novo review” that prohibits the admission into
evidence prior state agency action or the nature of the action [CR 5]. In
Appellant’s original complaint, he alleged facts that pertained to his work
injury. On February 21, 2012, appellant sustained an injury to the neck and
shoulder while performing duties and responsibilities as a Pharmacy
Manager and Staff Pharmacist for Walgreens Company [CR 6]. On February


                                       5
22, 2012, the appellant contacted the employer and the agency about the
work related injury [CR 6]. On February 23, 2012, the appellant sought
medical attention from a workers’ compensation network doctor at the
discretion of the agency. On said date, appellant was diagnosed with
cervical radiculitis lCD-code 723.4, and 840.9 shoulder sprain and strain [CR
7]. Trial court erred in failing to identify the Appellee stated “defendant
accepted injury as compensable and initiated temporary income benefits
(TIBs) on February 22, 2012 [CR 15,16, 46 and 76]. Ergo, the time to dispute
the injury has begun to run against the Appellee. On March 29, 2012,
Appellant underwent a cervical MRI, identifying a 5mm left paramedian disc
protrusion compressing the ventral cord. On May 2, 2012, a peer review
was performed beyond the sixty (60) days allowed to investigate and
contest an injury [CR 7, 125-134] and “notice of disputed issue(s) and
refusal to pay benefits” renders this review irrevelant and inadmissable
pursuant “trial de novo” review and it does not apply to the appellant’s
cervical injury specifically [CR 76, 84]. The same holds true for expert
testimony of Richard Suss presented in paper form with a date of
November 26, 2012 and Martin Steiner expert testimony presented in
paper form dated October 19, 2012, that were introduced in the contested
case hearing without the ability to be cross examined by appellant [CR 84-
87, 113-114]. These were the exact same opinions introduced to the
agency. Trial court erred in allowing inadmissable evidence, or evidence
that presented impartiality and bias which did not follow the AMA Guides
4th Edition. According to the Range of Motion presented by Andrew Cole,


                                       6
the Appellant had decrease cervical range of motion [CR 581. Plaintiff did
not have an injury prior to February 21, 2012. The Appellee did not present
any evidence to show the contrary, or establish the Appellant had a pre
existing injury. Alternatively, an injury includes aggravation of a pre-existing
injury, but the Appellant unequivocally know he has not had a prior injury.
Trial court erred in admitting into evidence Dr. Andrew Cole’s Maximum
Medical Improvement (MMI) and Impairment Rating (IR), that which he was
only tasked to perform [CR 53-62]. On June 26, 2012 appellee underwent a
MRI of the left shoulder, identifying supraspinatus distal tendon
attenuation and mild sub deltoid bursitis [CR 8]. On June 28, 2012, Dr.
Andrew Cole submitted an incomplete evaluation of the appeflant stating”
he was notified and failed to attend appointment on June 26, 2012”ld. That
statement is clearly untrue [CR 8, 57]. Trial court clearly erred in admitting
into evidence any and all evidence that was used in the the agency’s
decision, when the Appellant was deprived of any right to cross examine
each witness that presented testimony by paper form [CR 51-74]. It is a
clear abuse of discretion by the trial court because it failed to accept all
factual allegations as true and to draw all inferences in favor of the
Appellant before granting summary judgment. Additionally, it allowed
inadmissable evidence, ignored the pleading identifying violations of Texas
Labor Codes, laws and Government Codes, proximate cause of injury,
notification of first Temporary Income Benefits(TIB) payment, Notice of
Disputes and first report of injury to employer and insurance company,
diagnosis and supporting scientific evidence. The opinions of the expert


                                        7
testimony clearly was not probative, but conclusory [CR 83-87]. Moreover,
                                                           TI
AMA Guides 4th Edition clearly define an impairment as          any loss of
abnormality of psycological, physiological, or anatomical structure or
function.” More importantly, there are no other medical records to indicate
the appellant sustained a prior neck or shoulder injury. The fact remains a
compensable injury was sustained and the insurance carrier failed to
dispute the claimed injury. Appellant asserted the carrier waived its rights
to contest conpensability and stated it was presented to the Appeal Panel
referencing Decision No.080730 [CR 11,p.2].
     On August 24, 2012, appellant was [fjully evaluated by a Dr. Andrew
Garrett. It was indicated in his Muscle Atrophy Evaluation, appellant had
more than “2 centimeters11 difference in circumference of the upper arm
indicating moderate and prolonged nerve impairment. Cervical radicu
lopathy is limited to atrophy greater than 2 cm or loss of relevant refelxes,
verified by EMG/NCS nerve study. Additionally, Dr Martin Steiner did not
review the report submitted by Dr Andrew Garrett. Dr. Steiner’s report is
nearly two (2) months later [CR 84]. It is clearly he was bias and prejudice in
his opinion[CR 84]. More importantly, Dr. Martin Steiner does not mention
at all about the “brachial plexus” which consist of CS to C8 nerves, where
the nerves come together to form median nerve which corresponds to Dr.
Edwin Green’s finding of Radiculopathy, left-mid [CR 8, 9]. On the other
hand, Dr. Andrew Cole report was not complete as stated in his report, if it
was admissable evidence [CR 150].




                                       8
                       VIII. SUMMARY OF ARGUMENT
     This case was based on whether the trial court erred in allowing a
“no” evidence partial summary judgment and summary judgment based on
inadmissable evidence, without providing notice of the hearing for
summary judgment, which deprived Trent S. Griffin of an opportunity to
present summary judgment evidence. Additionally, the case was based on
abuse of discretion by the trial court granting summary judgment without
drawing all inferences in favor of Trent S. Griffin before granting summary
judgment. It is very clear that summary judgment was premature or even
erroneous based on the meritorious pleading of the Trent S. Griffin.
Further, American Zurich Insurance Company did not present an affirmative
defense, which was based on the decision and actions of the Texas
Department of Insurance-Division of Workers’ Compensation here known
as the “Agency”, when there was “trial de novo” review of the case.
Furthermore, the trial court erred by not applying other civil cases that
were similar in nature before granting summary judgment. American Zurich
Insurance Company did not negate any of Trent S. Griffin’s claims in
producing inadmissable evidence. Even if the evidence was admissable,
American Zurich Insurance Company did not contest the compensability of
Trent S. Griffin’s work related injury it accepted as compensable that was
presented to the Appeals Panel and they failed to act on the decision and
order of the Agency.




                                      9
                                IX. ARGUMENT

1. Granting of a “no evidence” partial summary judgment and summary
judgment without notice of the hearing or submission date of a summary
judgment by the Court or Appellee, deprived Appellant of rights, abused
discretion failing to draw favorable inferences, failed to negate one or
more elements of each claim, without finding of fact and conclusion of
law based on the merits of the case
          On June 27, 2014, Appellee filed a “no-evidence” motion for
partial summary judgment, then thirty minutes later filed a traditional
summary judgment [CR 41-50, Tex. R. Civ. P. 166a(i), 166a]. Trial court
erred in granting a “no evidence” partial summary judgment and a
traditional summary judgment [CR 156,157] on the basis of “no evidence”
extent of injury beyond a cervical sprain/strain and left shoulder sprain/
strain [CR42] and statutory maximum medical improvement date of
February 26, 2014 [CR 47]. Appellant’s filing of the petition [v]acated a state
agency decision for which “trial de novo” is the manner of review [GoVt
Code 2001.176(b)(3)]. A trial court is empowered to grant a motion for
summary judgment and render judgment for the movant when it is
[c]onclusively shown that the moving party is entitled to judgment as a
matter of law. It must be satisfied that either (1) there are no genuine
issues of material fact and the movant’s summary judgment evidence
establishes entitlement to judgment as a matter of law or (2) there is no
evidence of one or more essential elements of a claim or defense on which
the adverse party has the burden of proof [Tex. R. Civ. P. 166a(c), (i)].


                                       10
Grounds for summary judgment, the movant’s proof must conclusively
establish all elements of its cause of action as a matter of law [Tex. R. Civ. P.
166a(c); William v. Glash, 789 S.W.2d 261, 264 (Tex. 1990); Nixon v. Mr.
Property Management, 690 S.W.2d 546, 548 (Tex. 1985); Jeter v. McGraw,
79 S.W.3d 211, 214 (Tex. App.---Beaumont 2002, pet. denied); Also see
MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). The Supreme Court has
said that summary judgment procedure is not intended to deprive litigants
of their right to a full hearing on the merits on any real issue of fact; if there
is some doubt as to facts, summary judgment should not be rendered,
despite the desire for prompt disposal of judicial business. Moreover, a no-
evidence motion must challenge a specific element of the opponent’s case,
and therefore is not appropriate to raise a challenge based on an
affirmative defense on which it has the burden of proof see Nowak v. DAS
mv. Corp., 110 S.W.3d 677, 680 (Tex. App.---Houston [14th Dist.] 2003, no
pet.) (defendant improperly filed no-evidence motion on own affirmative
defense of limitations); Also see Barraza v. Eureka Co., 25 S.W.3d 225, 231
(Tex. App.---El Paso 2000, pet. denied) (party may not urge no-evidence
summary judgment on claims or defenses on which it has burden of proof);
Instead, the party asserting the defense has the burden of conclusively
proving the affirmative defense in order to gain summary judgment see

e.g., Harrill v. A.J. ‘s Wrecker Service,   mc,   27 S.W.3d 191, 193-194 (Tex.
App.---Dallas 2000, pet. dism’d w.o.j.) (trial court erred in granting summary
judgment on no-evidence motion based on affirmative defense of
preemption); [CR 31, 42]. A traditional summary judgment, may not be


                                            11
rendered based on the non-movant’s default. A response is not considered
necessary to defeat a traditional motion because deficiencies in the
movant’s own proof or legal theories might defeat the movant’s right to
judgment as a matter of law. Trial court erred by granting summary
judgment when the appellee waived its rights to contest the injury [Tex.
Lab. Code 409.021(c); APPEAL NO. 080730;]. Ergo, the movant is not
obliged to negate affirmative defenses raised by the defendant’s pleadings.
However, the movant’s proof itself may establish an affirmative defense,
such as the defense of limitation. In that case the movant must negate the
defense or in the appellant’s case, waiver of rights to contest
compensability of work injury expired after sixty (60) days after being
notified of the injury[APPEAL NO. 002920; Tex. Lab. Code section 409.021
(c); 124.3(c)(2); Alexander v. Lockheed Martin Corporation, 188 S.W.3d 348
(Tex. App.---Forth Worth 2006, pet. denied); Also see Continental Casualty
Insurance Company v. Williamson, 971 S.W.2d 108 (Tex. App.---Tyler 1998,
no pet.); section 401.011(26); Lopez v. Zenith Insurance Company, 229
S.W.3d 775 (Tex App.---Eastland 2007, pet. denied); Zurich American
Insurance Company v. Gill, 173 5.W.3d 878 (Tex. App.---Forth Worth 2005,
pet. denied)]. The appellee waived its rights to contest compensability of
the appellant’s work injury and it was raised before the appeals panel, ergo,
the trial court erred in granting summary judgment [ Krueger v. Atascosa
County, 155 S.W.3d 614 (Tex. App.---San Antonio 2004, no pet.);APPEALS
NO. 94224, 020375; CR 111.
         The court must give notice of the hearing or submission date of a


                                       12
summary judgment motion see Martin v. Martin, Martin & Richards, Inc.,
989 S.W.2d 357, 359 (Tex. 1998); Okoli v. Texas Dept of Human Services,
117 S.W.3d 477, 479 (Tex. App.---Texarkana 2003, no pet.) (notice by a
party that summary judgment would be presented to court was not noticed
of hearing date). Even though an actual hearing may not occur, because it is
within the trial judge’s discretion whether to hold a hearing, a hearing date
must be set and specified in a notice to the parties in order to set the filing
deadlines see Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357,
359 (Tex. 1998). Additionally, when a party is given no notice at all of a
summary judgment hearing or when a party is deprived of the right to seek
leave to file additional affidavits or other written response to the summary
judgment the party may preserve error in a post-trial motion see May v.
Nacogdoches Memorial Hosp., 61 S.W.3d 623, 626-627 (Tex. App.---Tyler
2001, no pet.) (when amended motion for summary judgment was served
two days before hearing, party had adequate time to file written objection
and waived right to object by failing to do so); Rios v. Texas Bank, 948
S.W.2d 30, 32-33, n.4 (Tex. App.---Houston [14th Dist.] 1997, no writ); Tex.
R. Civ. P. 166a(g).
         A party resisting a claim may establish that no genuine issue of fact
exists, justifying a “take-nothing” judgment as a matter of law, by negating
at least one of the key elements of each of the claimant’s theories of
recovery see Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.
1997); AlIen v. A & T Transp. Co. Inc., 79 S.W.3d 65, 68 (Tex. App.-—
Texarkana 2002, pet.denied); Jeter v. McGraw, 79 S.W.3d 211, 214 (Tex.


                                       13
App.---Beaumont 2002, pet. denied). Ergo, to prevail on a motion claiming
entitlement to summary judgment as a matter of law, the movant must
offer [a]dmissible evidence proving that no genuine issue of material fact
exists and that the movant is entitled to judgment as a matter of law on the
issues expressly set out in the motion or in an answer or any other
response to the motion Tex. R. Civ. P. 166a(c); Gov. Code, section 2001.173.
Additionally, a movant need not negate all conceivable theories on which
the claimant might recover, rather, the movant is only required to negate
the theories raised by the pleadings see Smithkline Beecham Corp.      tic   Doe,
903 S.W.2d 347, 355 (Tex. 1995) (claimant may defeat summary judgment
by raising issue of fact as to claim assertable under general language of
petition); Dickson v. State Farm Lloyds, 944 S.W.2d 666, 667 (Tex. App.---
Corpus Christi 1997, no writ); Also see Dewoody v. Rippley, 951 S.W.2d 935,
943-944 (Tex. App.---Forth Worth 1997, dis. agr.) ( movant failed to amend
motion for summary judgment to assert grounds to defeat causes of action
raised in amended petition filed after motion).
        In a civil action, pleadings admit claimant’s entitlement to
judgment. A plaintiff (or litigant asserting a claim for affirmative relief) may
be entitled to summary judgment on the pleadings in certain cases. For
example, in an action on a sworn account, the failure of the opposing party
to deny the truth of the account properly may entitle the claimant to
judgment because the answer does not raise any issue of material fact.Tex.
R. Civ. P. 185; see Hidalgo v. Surety Savings and Loan Association, 452

S.W.2d 540, 543 n.1 (Tex. 1971); Bado Equipment Co., Inc. v. Ryder Truck


                                       14
Lines, 612 S.W.2d 81, 83 (Civ. App.---Houston [14th Dist.] 1981, ref. n.r.e.)
(when suit meets requirement of Tex. R. Civ. P. 185 and defendant’s answer
does not meet requirements of that rule, plaintiff’s motion for summary
judgment need only state that defendant’s answer does not raise any issue
of material fact).
2. Granting of “no evidence” partial summary judgment and summary
judgment was prematurely granted to appellee, abuse of discretion
failing to allow discovery, and inadmissable evidence filed into record
        Case law makes it plain that the discovery system’s ultimate
purpose is to reveal the truth, so that disputes may be decided by the facts
that are revealed, not the facts that are concealed see In re Colonial
Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998); Tom L. Scott, Inc. v. Mcllhany,
798 S.W.2d 556, 559 (Tex. 1990); Garcia v. Peeples, 734 S.W.2d 343, 347
(Tex. 1987); Japole v. Touchy, 673 5.W.2d 569, 573 (TEx. 1984), disapproved
on other grounds, Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992).
Ordinarily, the testimony of an expert witness does no more than raise an
issue to be determined by the trier of fact; it usually does not establish any
fact as a matter of law see Uniroyal Goodrich Tire Co. v. Martinez, 977
S.W.2d 328, 338 (Tex. 1998); McGilliard v. Kuhlmann, 722 S.W.2d 694, 697
(Tex. 1986). An expert’s opinion must be based on reliable foundation,
amounting to more than an unsupported speculation or subjective belief.
Expert testimony evidence must be probative and not conclusory and be
based on reasonable medical probability to be admissable into evidence
[APPEAL NO. 120253]; Guevara v. Ferrer, 247 5.W.3d 662 (Tex. 2007). In


                                      15
Texas Supreme Court in Crump, announced a general rule that causation
requires expert medical evidence. However, there are exceptions to the
general rule. In Guevara v. Ferrer, the Court stated,” [t]ype of eveidence
establishing a sequence of events which provides a strong, logically,
traceable connection between the event and the “condition” could suffice
to support a causation finding:” 1) are within the common knowledge and
experience of a layperson; 2) did not exist before accident; 3) appeared
after and close in time to the accident, and; 4) are within the common
knowledge and experience of laypersons a work injury. The Texas Supreme
Court, later noted non-expert evidence alone is sufficient to support a
finding of causation in limited circumstances where [both] the occurences
and condition complained of are such that the general experience and
common sense of laypersons are sufficient to evaluate the conditions and
whether they were caused by the occurences. Id. Additionally, every expert
opinion must : 1) be based on accurate facts; 2) state an opinion in a
reasonable medical probability (not speculation, conjecture or possibility);
3) Include an explanation of causation and it may not be merely conclusory;
and 4) discuss and eliminate alternate possible causes if relying on
differential diagnosis. Furthermore, in Crump, does not require injured
worker to present expert medical evidence using (differential diagnosis
method). Moreover, it does [n]ot require medical evidence when claimant
was diagnosed with condition on date of injury. Appellant sought medical
attention in less than eighteen (18) hours from the time of injury [APPEAL
NO. 120253, 120383; 032608; CR 16    1. Upon a doctor visit with his PCP lesst

                                      16
than 24 hours, appellant was provided minimal service because he suffered
a work injury and was given two weeks worth of medication until he was
able to see a workers’ compensation network doctor as stated by his PCP.
Appellant’s PCP, noted left shoulder..., left trapezius muscle tender, neck
muscle tender at trapezius and acute myositis [CR 16]. Furthermore, a neck
injury can masquerade as a shoulder injury [APPEAL NO. 080730].
Moreover, Appeals No. 080730 is a situation that is nearly the exact same
case, with a difference of left and right side, and the carrier accepted the
compensable injury of shoulder strain/sprain and cervical radiculitis and the
insurance carrier filed notice of disputed issue(s) and refusal to pay benefits
on May 9, 2012 which is not within 60 days of February 21, 2012 or, on or
before Aprill 22, 2012 [APPEAL NO.032668]. Though there was
inadmissable evidence, or alternatively, if the evidence was admissable, it
did not overcome the fact of section 409.021(c), waiver of right to dispute
cervical radiculitis, 5mm left paramedian protrusion (herniated disc), and
left shoulder strain/sprain. The additional scientific evidence by EMG/NCS
nerve study and MRI of left shoulder identified the underlying causes of the
radicular pain and parathesia (numbness, tingling, spasms, and etc.). Dr
Andrew Cole’s evaluation of the appellant, even if his evidence was
admissable, did not dispute the fact of the injury, but that in his [e]
stimation, the “injury was chronic and pre-existing [CR 56]; The Rylond
Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex 1996).” In a “differential
diagnosis method”, it was performed by Dr Cole indicating a decrease in
sensation on the ulnar aspect of the left hand and decrease in sensation


                                       17
below the elbow on the volar surface of the arm. For the Cervical Spine, it
was noted decrease of flexion and extension. Additionally, the Dr. Cole
stated   [I] am obtaining shoulder MRI and EMC and consult to fully
evaluate exaiminee [CR 146-155]. Ergo, he provided an evaluation that was
conclusory, presented with conjecture, possibilities and speculations, and
not probative in nature. The same holds true for the Peer Review by Dr
Phillip Osborne, Expert Review and Opinions of Dr. Martin Steiner and Dr.
Richard Suss. Neither of the experts could provide a means of medical
possibilities of causation, nor could they produce any evidence to establish
a pre-existing injury and that the injury was not within the course and
scope of employment. Moreover, the injuries were accepted as
compensable and the insurance carrier did not dispute within the sixty (60)
days of notification, and ergo, waiving there rights to compensability and
liability for the injuries suffered by the appellant [APPEAL NO. 080730,
94224, 002920, 111710, 120253, 20383, 130808; TEX. LAB. CODE SECTION
409.021(C), 409.004(2); SECTION 401.011(10), 401.011(11)]. Based on the
evidence of Dr. Andrew Cole assigment of MMI/IR, he noted on his cervical
flexion, extension, lateral flexion and rotations, though he provided a zero
percent Impairment rating, at that time impairment was at least 10%
impairment for those measurements and Diagnosis- Related estimated DRE
Category Ill: Radiculopathy (15%) and an unoperated intervertebral disk is
estimated at 4%. Dr. Andrew Cole, if evidence was admissable, stated
appellant had a zero percent impairment rating. Clearly, that was not based

on any findings of probative nature. The MRI evidence presented a


                                      18
herniated disc and he was diagnosed with cervical radiculitis
[APPEAL NO. 111710].


                                  X. PRAYER
     The issues are whether American Zurich Insurance Company
presented summary judgment material evidence to negate all the claims
asserted by the Appellant Tren S. Griffin, Sr., whether the evidence was
admissible and even if it was, did trial court abuse its discretion by granting
a “no evidence” partial summary judgment, then a summary judgment
when at least one or more elements of all the claims were not negated,
trial court erred by allowing evidence based on the agency’s intervening
actions or decision in a “trial de novo” review. Additionally, did the trial
court abuse its discretion by depriving the Appellant of an opportunity to
present summary judgment evidence and without providing notice of a
summary judgment hearing that was scheduled without notice from the
court or the Appellee. In the final analysis, the evidence presented by
American Zurich is inadmissable, expert testimony, peer review and
agency’s actions and decisions are devoid. Furthermore, American Zurich
Insurance Company did not present an affirmative defense, when it
presented a response that was based on the actions or decision of the
agency. Moreover, it is clear American Zurich Insurance Comapny waived
its rights to contest the compensability of the injury and their liability. For
these reasons stated in the brief, Trent S. Griffin, Sr. asks the Court to
reverse the trial court’s judgment, and render judgment for Trent S. Griffin,


                                       19
Sr., or in the alternative, to reverse the trial court’s judgment and remand
the case for new trial.




                                      20
                           CAUSE NO. 05-14-01510-CV
                             TRENT S. GRIFFIN, SR.,
                                  Appellant,

                                       V.


                  AMERICAN ZURICH INSURANCE COMPANY,
                                Appellee




                           Xl. APPEllANT’S APPENDIX


1. No-evidence Partial Summary Judgment dated August 15, 2014
Clerks Record 156                                         Tab 1
2. Summary Judgment dated August 15, 2014
Clerks Record 157                                         Tab 2
3. Plaintiffs Original Complaint dated Mat 29, 2013
Clerks Record 5   -   17                                 Tab 3
4. American Zurich Insurance Company Original Answer
dated August 13, 2014.
Clerks Record 31-33                                       Tab 4
5. 101st District Uniform Schduling Order (Level 2)
dated September 17, 2013
Clerks Record 35 37   -                                   Tab 5
6. FORM NO. 353-3 CITATION THE STATE OF TEXAS


                                       21
dated September 19, 2013
Clerks Record 38 39-                                         Tab 6
7. UNITED STATES POSTAL SERVICE Letter dated August 21, 2013
Clerks Record 40                                             Tab 7
8. Defendant’s No-Evidence Motion For
Partial Summary Judgment dated June 27, 2014
Clerks Record 41 -45                                         Tab 8
9. Defendant’s Motion For Summary Judgment dated June 27, 2014
Clerks Record 46 50-                                         Tab 9
10. Business Records Affidavit dated September 17, 2013
Clerks Record 52 62-                                         Tab 10
11. Certfication of Instrument(s) dated September 17, 2013
Clerks Record 64- 70                                          Tab 11
12. Affidavit of Richelle Cabrales dated June 19, 2014
Clerks Record 76                                              Tab 12
13. Dr. Martin Seiner’s Report dated October 19, 2012
Clerks Record 84 87-                                          Tab 13
14. Dr. Richard Suss’s Report dated November 26, 2012
Clerks Record 113 114  -                                      Tab 14
15. Dr. Phillip Osborne’s Report dated May 2, 2012
Clerks Record 125 134  -                                       Tab 15
16. Request For Findings of Fact and Conclusion of Law
dated September 3, 2014
Clerks Record 161- 162                                         Tab 16


                                     22
17. Motion for New Trial dated September 5, 2014
Clerks Record 164- 170                                        Tab 17
18. Affidavit dated September 4, 2014
Clerks Record 171 173
                  -                                           Tab 18




                                               Respectfully submitted,


                                               T4t   .   àrt4Y  iro se
                                               7frj Meandefing Dr.
                                               Cedar Hill, TX 75104
                                               469-337-0598[NEW]




                                    23
                             CERTIFICATE OF SERVICE

       I certify that a true copy of the above Motion for AppellantTs Brief and
Appellant’s Brief has been sent by certfied mail by depositing it enclosed in
a postpaid, properly addressed wrapper in a post office or official
depository under the care and custody of the United States Postal Service
to attorney Todd Richards, The Silvera Firm, 1015 Providence Towers East,
5001 Spring Valley Road, Dallas, Texas 75244, attorney of record for
American Zurich Insurance Company at Corporation Service Company, 211
       7th
East         Street #620 Austin, Texas, Travis County, Texas.
SIGNED on March 30, 2015.

CMRR: 7013 2250 0002 3632 3256




                                         t( -‘vvj
                                       Trjnt S. Griffn   o se

                                        2
                                          FiLED IN
                                   5TH COUP1 OF APPEALS

     CAUSE NO. 0S-14-01510-CV71115 APR 2L1 PH q: QQ
                                   LISA MATZ. CLERK

               IN THE
      FIFTH COURT OF APPEALS
            DALLAS, TEXAS


          TRENT S. GRIFFIN
             Appellant,

                       V.

AMERICAN ZURICH INSURANCE COMPANY
              Appellee.



         On appeal from the
         101st District Court of
          Dallas County, Texas




       APPELLANT’S APPENDIX




         Trent S. Griffin, Sr.
        724 Meandering Dr.
       Cedar Hill, Texas 75104
         Tel. 469-337-0598

    TRENT S. GRIFFIN, SR., PRO SE
             APPELLANT
                          CAUSE NO. 05-14-01510-CV
                            TRENT S. GRIFFIN, SR.,
                                 Appellant,

                                      V.


                    AMERICAN ZURICH INSURANCE COMPANY,
                                  Appellee




                          XI. APPELLANTS APPENDIX


1. No-evidence Partial Summary Judgment dated August 15,
                                                         2014
Clerks Record 156
                                                          Tab 1
2. Summary Judgment dated August 15, 2014
Clerks Record 157
                                                          Tab 2
3. Plaintiffs Original Complaint dated Mat 29, 2013
Clerks Record 5 17
                -
                                                          Tab 3
4. American Zurich Insurance Company Original
                                              Answer
dated August 13, 2014.
Clerks Record 31- 33
                                                          Tab 4
5. 101st District Uniform Schduling Order (Level
                                                 2)
dated September 17, 2013
Clerks Record 35 -37
                                                         Tab 5
6. FORM NO. 353-3 CITATION THE STATE OF TEXA
                                             S
dated September 19, 2013



                                      1
 Clerks Record 38 39
                  -

                                                             .Tab 6
7. UNITED STATES POSTAL SERVICE Letter dated August 21, 2013
Clerks Record 40                                          Tab 7
8. Defendant’s No-Evidence Motion For
 Partial Summary Judgment dated June 27, 2014
Clerks Record 41-45                                          Tab B
9. Defendant’s Motion For Summary Judgment dated June 27, 2014
Clerks Record 46- 50                                      Tab 9
10. Business Records Affidavit dated September 17, 2013
Clerks Record 52 62
                 -
                                                             Tab 10
11. Certfication of Instrument(s) dated September 17, 2013
Clerks Record 64 70
                 -
                                                              Tab 11
12. Affidavit of Richelle Cabrales dated June 19, 2014
Clerks Record 76
                                                              Tab 12
13. Dr. Martin Seiner’s Report dated October 19, 2012
Clerks Record 84- 87
                                                              Tab 13
14. Dr. Richard Suss’s Report dated November 26,
                                                 2012
Clerks Record 113 114-


                                                              Tab 14
15. Dr. Phillip Osborne’s Report dated May 2, 2012
Clerks Record 125 134-

                                                              Tab 15
16. Request For Findings of Fact and Conclusion of
                                                   Law
dated September 3, 2014
Clerks Record 161 162
                  -
                                                              Tab 16
17. Motion for New Trial dated September 5, 2014


                                     2
Clerks Record 164- 170                                   .Tab 17
18. Affidavit dated September 4, 2014
Clerks Record 171- 173                                   Tab 18




                                        Respectfully submitted,


                                                    if
                                                         IgDr
                                        Cedar Hill, TX 75104
                                        469-337-0598[N EW]




                                   3
                                                                                        i
                                                                                            000341
                                   CAUSE NO. DC-1345893

TRENT S. GRWFN,                                 §              N ThE DIICT COURT
     P1aind•
v.                                                             iOl JUDICAL DISTRICT
                                                §
AMERICAN ZURICH INSURANCE                       §
COMPANY                                         §
    Dthnda                                      §              DALLAS COUNTY, TEXAS


  ORDER ON DRP€NDAMI’S NO-fl’IDENCE MOTION YOR PARTIAL S{ThIMAfty
                            JUDGMENT


       On this date, canie on to be considered the No-Evidence Motion thr Perth! Summary

Judgment ofDekndwit, AmericaZurich Insurance Companyand the Cowl, having considered said

motion, evidence, and arguments of counsel, is of the opinion that said motion should be granted.

       It is, therefore, ORDERfl ADJUDGED, AND DECREED that Deftndant’s No-Evidence

Motion for Partial Swnmaiy Judgment is hereby GRAnTED.                 -




       SIGNED, this             of                         .   2014.




                                                        JIJDGBPRBSWNG




oan owDrww*ifl No.EVmUKIMOflON FORPAMIALSUhWARY SUDGMrfl- PACK 1
                                                                                               156
                                                                               i43E
                                                                                       000342
                                    CAUSE.NO. DC-i 3-05893

 TRENT S. GRifFIN,                               §            N THE DISTRICT COURT
      Plaindfi                                   §
                                                                   JUDICIAL DISTRICT
 AMERICAN ZURICH INSURANCE
                                                 §
 COMPANY
                                                 §
     Defendant
                                                 §
                                                              DAlLAS COUNTY, TEXAS

          ORDER ON DEnNDANVS MOTION FOR SUMMARY JUDGMFRF


       On this date, came on to be considered the Motion fir Swnmwy Judgment of Defendant,

American Zurich Insurance Company and the Court, having considered said motion, evidence,
                                                                                            and
arguments of counsel, is of the opinion that said motion should be granted.

       It is, therefore, ORDERED, ADJUDGED, AND DECREED that Defendant’s Motion for

Summary Judgment is hereh3RAI1TED.

      SIGNED, this    /1 day of________________



                                                               EPRBS     NO
                                                                                 /




Ozwu onnnehr4fl MOTION P0K SUMMARY JUDGMENT PAGE 1        -

Tn

                                                                                             157
AFFIDAVIT INABILItY TO     PAY                     -




                                                       -


                                                                               ORIGINAL

                                                  Vc13 —05893
                                           NO._____________


      Trent S. Griffin                                                                       ‘3
                                      }          IN TUE DISTRICT COURT
      [plain4ft
                                                                                         •




                                      }          DALLAS COUNfl TEXAS
                                                             DISTRICJ
                                       I          ioi
     AMERICAN ZURICH                  }
     INSURANCE COMPANY                )
      [defendantl                     )
                                       I

                         PLAThTWF’S ORIGINAL PETmON
     TO THE HONORABLE COURT:
     Trait S. Griffin, plaintifi complains of Texas Department of Insurance,
     Division of Workers’ Compensation, hereafter referred to in this petition as
     the agency and, American Zurich Insurance Company, defendant, and by
     this petition seeks trial de novo review of a decision of agency; pursuant to
     Government Code 2001.173 ,and as grounds for review shows:
                                            I.
                                   JURISDICTION
     The plaintiff is employed as a pharmacist with Waigreens Company,
     residing in Dallas County, Texas. Agency is a state commission having
     statewide jurisdiction and service of process may be had by serving Chief
     Clerk Proceedings, Texas Department of Insurance, Division of Workers’
     Compensation, P.O. Box 17787, Austin, Texas 78744-7787 and




     PLAINTifF’S ORIGINAL PETITION TO SEEK TRIAL DE NOVO- PAGE 1



                                                                                     5
 American Zurich Insurance Company, its attorney Todd
                                                           Richards at The
 Silvera Ffrm,IO1S Providence Towers East, 5001 Spri
                                                        ng Valley Road,
 Dallas, Texas 75244 Dallas Countyç Texas or its registered
                                                              agent for service
 of process, Corporation Service Company, 211 East 7th Stree
                                                                t, #620 Austin,
 Texas Travis County, Texas. American Zurich Insurance
                                                            Company alleges
 extent of injury to include cervical and shoulder spxüi/stra
                                                              in with a
maximum medical improvement date ofApril 26,20 12 and
                                                              an impairment
rating of zero percent This petition is timely ified in the appr
                                                                 opriate court in
accordance with 410.252 ofthe Texas Labor Code, not later than the
                                                                          45th
day after which the division mailed the decision ofthe appeals panel
                                                                          with
the mailing date considered to be the fifth day afterthe date ofApril 15,
2013, the date of the appeals panel decision and the county where the
employee resided at the time of injury. Plaintiff pleads that discovery
should be conducted in accordance with a tailored discovery control plan
under Civil Procedure Rule 190.4.


                                      II.
                          SUMMARY OF CASE
  On February 21,2012, the plaintiff sustained an injury to the neck and
shoulder while performing duties and responsibilities as a Pharmacy
Manager and Staff Pharmacist for Walgreens Company.
  On February 22,2012, the plaintiff contacted the employer and the
agency about the work related injury. A true copy of EMPLOYERS


PLAINTWE’S ORIGINAL PnTL iON TO SEEK ThIAL DE NOVO- PAGE 2




                                                                                  6
 FIRST REPOfl OP INJURY OR ILLNESS
                                                    is attached as Exhibit A
 and incorporated by reference. The plaintiff
                                              on the said date   sought medical
 attention from his primazy care physician. A
                                                true copy of PRIMARY
 CARE PHYSICIAr4 CHART NOTE is attached
                                                      as Exhibit B and
 incorporated by reference.(emphasis added)
    On February 23,2012, the plaintiff sought
                                                  medicai attention from a
workers compensation network doctor at the discretion
                                                        of the agency. The
plaintiff began treating with doctor RD. Holder, D.C.
                                                      Doctor Holder on said
date, performed a physical exam and noted there was
                                                     a decrease range of
motion with tenderness ofthe left shoulder and a POSITIVE
SPURLING’S TEST. Dr. Holder diagnosed the plaintiff with lCD-codes
723.4 cervical radiculifis and 840.9 sprain and strain of left
shoulder.(emphasis added)
   On March 29,2012 the plaintiff underwent a cervical MRI and the
findings were cord normal, osseous structures normal, disc spaces normal,
and no disc disease identified. The MRI identified a left paramedian disc
5mm protrusion mildly compressing the ventral cord. Dr. James Piko’s
impression was this may account for the symptoms of left upper extremity
paresthesia.(emphasis added)
   On May 2, 2012, a PEER REVIEW was performed by Dr. Phillip
Osborne, MD. This peer review was beyond the 60 days allowed to
investigate and contest an injwy.(emphasis added)
   On June 22,2012 the plaintiff underwent a physical exam by a
Designated Doctor, Dr. Andrew Cole. Dr. Andrew Cole’s physical


PLAINTifFS ORIGINAL PETiTION TO SEEK TRIAL 1W NOVO- PAGE 3



                                                                                  7
   examination was impartial and
                                     prejudice. Dr Cole did not perfor
                                                                         ma
  thorough exam of the plaintiff
                                   . Dr. Cole was tasked to determine
                                                                      ma     ximum
  medical improvement and impai
                                rment rat      ing, with an additional test of the
   left knee. In Dr. Cole’s designated
                                        doctor evaluation, Dr. Cole indica
                                                                            ted a
   shoulder M and EMG cons
                                   ult were needed to fliHy evaluate
                                                                        this
  examinee. Athie copy of Dr. Co
                                     le’s Determination Of Maximum
                                                                         Medical
  Improvement(MM1) and Impairm
                                      ent Rating(IR) is attached as Exhib
                                                                            it C
  and incorporated by reference.(emp
                                        basis added)
     On June U, 2012 the plaintiff underw
                                            ent aIvWI of the left shoulder.
 Dr. James Piko’s impressIon indicated sup
                                            raspinaws diMs] tendon
 attenuation, without any tear identified and
                                              mild sub   deltoid bursitis.
    On June 28,2012, Dr. Andrew Cole completed
                                                       the Thi REPORT OF
 MEDICAL EVALUATION without fully evalu
                                        ati           ng the examinee.
Dr. Cole did not review the left shoulder MEl and did
                                                      not obtain      the consult
for the EMG/NCS nerve smdy.(emphasis added)
  On July 20, the plaintiff underwent an EMG/NCS nerve study. This tes
                                                                        t
was performed by a physician that is specially trained in EDX medicine and
the data was provided to an independent expert to review the materiaL for an
independent interpretation. Dr. Edwin Green electro diagnostic impression
indicated mild, early, left sided mid-cervical radiculopahW He suggested
strong clinical correlation with the cervical spine MEL Dr. Green primary
diagnosis was Cervical Radkulopathy, left-mid.(emphasis added).
   On August 24,2012, Dr. Andrew Garrett, Board Certified for fvffvfl and
W, fully evaluated the plaintiff and certified the examinee did not reach


PLAINTIFF’S ORIGINAL PETITION TO SEEK TRIAL DE NOVO- PAGE 4



                                                                                     S
 maximum medical improvement Dr. Garrett
                                               indicated in his Muscle
 Atrophy Evaluation, the examinee had more
                                              than a 2 centimeters difference
 in circumference of the upper ann indicating
                                               moderate and prolonged nerve
 impairment. In Dr. GmreWs Treatment Plan, the
                                                  plaintiff has met aU criteria
 for a trial of Epidunl Steroid Injections (ESI).
    On November 29,2012 a scheduled benefit review
                                                           conference was
 improperly conducted. The agency nor the agency’s
                                                         representative appeared
 in person to propedy discuss the disputes and exchange
                                                             of documents. The
BRC was impartial and prejudice.
    On November 29,2012, the agency notified the plaintiff to appear
before it and show cause why the plaintiff’s extent of injmy included
cervical C6-7 left panmedian protrusion and radiculitis, C5-6 radiculopathy
and maximum medical improvement not at MML




                                       a
                          DECISION AND ORDER
   On Januaiy 24,2013, the agency rendered its decision and reffised to
grant the plaintiff’s application for extent of injury to include the left
panmedian pmmision(herniated disc), cervical rafficulopathy/radiculits
and not at maximum medical improvement The plaintiff timely filed an
appeal and the Appeals Panel Review of the Hearings Officer’s Decision
and Order became final on the date April 15, 2013 wider the provision
410.204 of the Texas Labor Code. All conditions precedent having been


PLAINTifFS ORIGINAL PETITION TO SEEK TRIAL DE NOVO- PAGE 5



                                                                                   9
  performed or having occurred, the
                                    plaintiff is entitled to trial de novo
                                                                           in
  accordance with 410251 and
                              410.252 of the Texas Labor Code
                                                                     and Section
  2001.173 of the Government Code.




                                          ‘V.
        The plaintiff will show that the agency
                                                ’s findings, inferences,
 conclusions and decisions are unlawflA
                                        and improper becaus        e of one or
 more of the following:
    1.      The agency’s decision is not reasonably suppor
                                                             ted by substantial
 evidence in view of the reliable and probative
                                                    evidence in the record as a
 whole. In this connection, the plaintiff will show that
                                                           the extent of injury
for compensability is more than a cervical and left should
                                                             er sprain/strain in
the finding of fact number IF, that it is so lacking in eviden
                                                               tiaiy support     that
reasonable minds could not have reached that conclusion. The plaintiff
plead the use of the AMA Guides 4th edifisi. prior to
                                                      hjmy frimaty care
physician’s medical records, work schedules, wage earning statements,
current medical records, emails, witness testimony, doctor’s testimony,
video, prescription records and any other fact findings and conclusions of
law to plead the plaintiff’s case.
   2.    The agency’s decision denies plaintiff due process of law and the
right to equal protection ofthe law, as guaranteed by the Constitution of the
United States and the State of Texas in that it uses the laws to manipulate


PISAINFWPS ORIGINAL PEunON TO SEEK TRIAL bE NOVO- PAGE
                                                                           6



                                                                                        ID
 injured workers, that can have serious complications and
                                                               potentially lead to
 loss of lifr or limb. The decisions are impartial and
                                                         prejudice, they lack the
 real meaning of the words” truth held to be self
                                                  evident”. In accordance with
 409.021 and 409.022 of the Texas Labor Code, the
                                                  carrier      waived its rights
 to contest compensability, filing a dispute passed the
                                                        60 days. The Hearing
 Officer validated the designated doctor and alternative
                                                         physicians
 credentials to examine an injured workers compensability
                                                          but failed to
verify the validity ofthe dispute. The late filing of dispute
                                                              was presented to
the appeals panel rekrwicing Appeal No. 080730.
   3.   The agency’s decisions exceeds its statutory authority in that
                                                                       ft
makes life and death decisions regarding injured worker’s. The injured
worker’s can become a menace to society based on improper decisions of
the agency. Those decisions can cause families to suffer immensely,
physically, emotionally and financially. These proceedings can take to long
time and in the meanwhile an injured worker is constantly suffering due the
medical necessity/prior authorizations required to treat injuries.
   4.   The agency’s decision was made on unlawflil procedure in that the
plaintiff was cross-examined and the defense had no one present to be cross-
examined. The Ombudsman makes an opening statement and the plaintiff is
questioned from both sides with one goal, to get one side of the story on
record. There was a lack of interest in what another doctor says about the
treatment of an injured worker, only one doctor has more weight even with a
preponderance of evidence to show the contrary. The process with TDI
DWC is a fame.


PLAINTifF’S ORIGINAL Pm nON TO snC TRIAL DE NOVO- PAGE 7



                                                                                    Ii
     5.   The agency’s decision ignored the evidence and,
                                                                instead, the agency
  ruled as a result networking in the State of Texas.
                                                      Accordingly, the agency’s
  decision is arbinjy, capricious and characterized by
                                                        an abuse or clearly
 unwanted exercise of discretion. Anytime it is stated
                                                        an appeal is upheld
 95% of the Hearing Officer’s Decisions, only
                                                  5% ofthe cases are allowed
 through. This is evidence at it’s best for bias and impartial
                                                               rulings regardless
 of the evidence for injured worker’s.




                                         V.
                                 CONCLUSION
   As a result of the unlawful and improper action as described above,
The plaintiff has suffered harm and prejudice to substantial rights. In this
connection, the plaintiff will show that pain and suffering, depression,
distress and anxiety, loss of wages, loss of enjoyment of life, life
expectancy, future medical, physical structure damage, job, inability to care
properly for children, loss of business efforts, inability to work overtime,
inability to maintain home and cars.
   WHEREFORE, the plaintiff request that the agency and the defendant
be cited to appear and answer that the agency be required to prove its
allegations against the plaintiff and that on final trial, the plaintiff have
judgment of the Court:




PLAINTifFS ORIGINAL PEnUON TO sak TRIAL DE NOV PAGE 8




                                                                                    12
   1.  Reversing the decision of the agency, and ordering that the
                                                                   agency
and defendant take nothing by its suit
   2.   Awarding the plainfiff costs incurred, together with all other relief to
which the plaintiff may be justly entitled.
                                     Respeethilly su.
                                     By
                                     Tren
                                                  7Y
                                            Gri h1&fffl]
                                     72      den
                                     C    Hffl,TexaslSlo4
                                     972-291-9569(h)
                                     2l4418-9609(c)




PLAINTIFF’S omcia PnTi’iON TO SEEK ThIAL DE NOVO- PAGE 9



                                                                                   13
L




                              CERTIFICATE OF SERVICE
     I hereby cerffl3’ that a true copy of the above Plaintiff’s
                                                                 Original Petition
     have on this 29th day of May, 2013, been sent by
                                                         the United States Postal
     Service for Certified Mail Receipt



    Chief Clerk Of Proceedings                 CMR: 7012 1640 0002 3410 7516
    Texas Department of Insurance
    Division of Workers’ Compensation
    P.O. Box 17787
    Austin, Texas 787447787



    Todd Richards                              CMR: 7012 1640 0002 3410 5000
    The Silven Firm
    1015 Providence Towers East
    5001 Spring Valley Road
    Dallas, Texas 75244




    PLAINTifFS ORIGINAL PEU1ION TO SEEK TRIAL DE NOVO- PAGE 10



                                                                                     14
                       aq!
                       ta
                  U    •




pa
pa
0
                  LitUI Iji
p.
pa




                  rI
                  •1 I
              I
              I
     I

         19
                                                                    _____________
        91.
                                                                         -
                         rna-m1fl
  --A                C   .r+e?.QS                  crD_cS&
               -.
                                                                    1.1.
                                                                    1*Z.
    -
                                                                    ——
Z_1tncrr Un
—        -
    -         ZZZiTpAj& Z’trfl
ZZZZzEz1z:zzzr.z?r/                      -.                    %
                                              -.       5••
                                     StWld                     V1                 —
                                                       .
                                                           p
                                                           ,
                                                                           I_,p
                                                                           SISONO’,lQ
ZSUUOJ!        3ev            W8 I ala             I
                     Q9$t j
                          __
                 __
        __
__




     M C-I Med Gip 9725708933                     page 6
                                                                              £ê1iW4 C.
Trats.Gdffin
Page 3
                                                r—’r 1L SMNT RAflP
On. Jp4pflo OF Wfl5UM MEDiCAL awRo evdu.b vie a....
I am oaalnlng sadder urn mi EMO and await to My
                                                     q4lbb with soft Ii.-— sflfl to the
Preimmay to this a bakig obtained. my tiding. me con iw condluom of the shoulder and
                                        esi g deg inem
nedc end efridder a et gidS.cJ m pre
neck —       preen   —     synçtmt

As a result, the patient la at MMI with aO% whale pem  on knpalrnwm — Mated to the wa*
       The dais ci MW WW be placed at M2W201       1, the date of vial to Or. Walsid’s ci?Ice,
hjury.
                                                    ntaly two marts from die date of ijisy
which noted no slgnlcs* drg.a 11* is appmö ie flint
and Is fuRy cwnpetlbls with meduffon of each .t tiem

I wiN be abbkiig an EMG aid shoulder MRS end who    w provide an athlsndum after Vine are
                                                       le      inceiment I wi so notify ii
attained. if they ted my decision — to MW and
the addendum.

                                      ‘,4f FOR AN).inMAj in leNt
                                         unable to schedule both DIG and 1*41. He was
As of W2W2012 the aa,Jin ties been           wiebie to attend and ha not medieduisd. As a
ncdfled of an appointment on 6126112, WI was
                                    ,,5 adng widin DWC Urn. inladons, I wit bializa   my
 mmA cs 5 c not obtai a&L                       12012 and 0% knpebment That Is c.Iaiad
 report with decisions noted above. W* on 4126 0% inpámm*           a4 bibs left shoulder a
 ORE Cgoiy 1,0% for his neck. liwis Is.              tissue sprai n lid IoN she.- hjwy. The SM
 the        of rn4a, de6dte wotid not apply to ascii SawJ 0%
     m*e
                                            on end is
 lea. Id on 0MC32 has M mugs of moti


                                                                                uon has been
 15* xflors m.1iod hi 0*         sn the opinions of the evaimor. The evia     povi ded. with the
                                        erilnatlon and Sm aimflS         m
 amducted on the basis of the medcd correct. If more h&aii.Sgl bcGff in s-’ at a
 aeawnØon ma the mdM.I is true and sideradon may be requested.
 bier date, an additional ast&rspcrtftscon
                                                                                              wi
                                          Via opinions rendered In this evalueUon.. This oØil
 Bud, hifamiadon may or n ud change lnatlon and doanrdatlan. The opWui does not
 is based on a dnlcai aaeeentent, enni       ific daims or adndnlsfltfre fimdion to be made
                                                                                               or
  constiba, par a, a mcaiwMtIon for spec

                                                  sithotigh the ewnkbn may appear to be ft to
  Medidne Is both an act and a science, mid Is no guarantee that the h’,thithi& will not be
                                           , there
  prtldpate hi various types of activities      of ps&çhig In tc.täii aea
  rek4tnd or afl   a&%   iat flay   samat




  M*w 7. Cola, MD, MPJL
  &w arnat,      —          ue&m
  TXMD   H10 %
  Tens CsUfiad Designated DocW, Impa   innent AOL Lentil
                                             t 5I883
  AIC: tBUswm, ft 06124112, T: 06126112, Job




                                                    3O1251êCCQt
      1fl1f9t2
                                                                                    a-     4¼
                                     omomlAL                                        4        *
                                  CAUSE NO. 0043-05893

TRENT S. GRIFFIN,
    Plaintiff,
                                                 §
                                                 §
                                                            IN THE DISTIUb
                                                                            \ ‘tP
                                                                                   aa’       ‘>
                                                                                               C
                                                 §          lOP’ JUDICIAl Dlb?J

AMERICAN ZURICH INSURANCE                        §
COMPANY and TEXAS DEPARTMENT                     §
OF INSURANCE, DIVISION OF                        §
WORKERS’ COMPENSATION                            §
     Defendants.                                 §          DALLAS COUNTY, TEXAS


                    AMERICAN ZURICH INSURANCE COMPANY’S
                              ORIGINAL ANSWER


TO THE HONORABLE JUDGE OF SAID COURT:

       COMES NOW, American Zurich Insurance Company, Defendant in the above entitled and

numbered cause, files this Original Answer and would respectfiully show the Court and all parties

as follows:

                                                I.

                                     GENERAL DENIAL

        Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendant hereby denies all

allegations and hereby requires Plaintiff to prove his cause of action by a preponderance of the

evidence. Defendant specifically denies each and every allegation contained in Plaintiff’s Original

Petition and demands strict proof by a preponderance of the evidence thereon.

                                                H.

                        ADMISSION OF THE DECISION OF THE
                       DIVISION OF WORKERS’ COMPENSATION

        The issues determined by the Division of Workers’ Compensation pursuant to the contested

case hearing decision and order and Appeals Panel affirmation were as follows: (I) has the claimant

AMERICAN ZURICH INSURANCE COMPANY’S ORIGINAL ANSWER PACE 1      -


Th:bla 76-359
                                                                                                31
  reached maximum medical improvement, and if so, on what date;
                                                                (2) if the claimant has reached
  maximum medical improvement what is the impairment rating; (3) does
                                                                      the compensable injury of
  February 21, 2012 extend to include a left panmedian disc protrus
                                                                   ion at C6-7 and cervical
  radiculopathy/ndicWitis.

          The Hearing Officer correctly determined that Plaintifffailed to meet
                                                                                  his burden ofproofand
  the compensable injury of February 21, 2012 was not producing cause
                                                                      of a left paramedian disc
  protrusion at C6-7, cervical ndictiiopathy or cervical radiculitis and the claima
                                                                                    nt reached clinical
 maximum improvement on April 26,2012 with a 0% impairment rating. The
                                                                       Appeals Panel of the
 Texas Department of Insurance, Division of Workers’ Compensation aflinne
                                                                         d this decision in favor
 of the Defendant. Pursuant to Section 410.169 or Section 410.204(c) of the Texas
                                                                                  Labor Code,
 Defendant requests that the jury be informed of the decision of the Division
                                                                              of Workers’
 Compensation on each issue to be presented to the jury.

         WHEREFORE, PREMISES CONSIDERED, American Zurich Insurance Company
                                                                           prays
 that upon final hearing herein Plaintiff recover nothing from Defendant, that Defend
                                                                                     ant have
judgment in its favor that the compensable injury of February 21,2012 does not extend to
                                                                                         include
a left paramedian disc protrusion at C6-7, cervical radiculopathy or cervical nthculitis and
                                                                                             that the
claimant reached clinical maximum medical improvement on April 26, 2012 with a 0%
                                                                                  impairment
rating. Ddndant prays that all costs be taxed against Plaintiff. Defendant further
                                                                                   prays for such
other and further relief to which it may be justly entitled, whether at law or in equity.




AMERICAN ZURICH INSURANCE CoMPANY’s ORIGINAL ANSwUt PAGE 2       -
TR:htafló-359

                                                                                                  32
                                                                  ____
                                                                         ____
                                                                                 ____
                                                                                       ____
                                                                                              __




                                                    RespectfUlly submitted,

                                                    THE SILVERA FIRM
                                                    A Professional Corporation



                                                    BY:




                                                       ‘—‘todd Richards
                                                          State Bar No. 16855500
                                                          Darryl J. Silven
                                                          State Bar No. 18352280
                                                          1015 Providence Towers East
                                                         5001 Spring Valley Road
                                                         Dallas, Texas 75244
                                                         TELEPHONE (972) 715-1750
                                                         FACSIMILE (972) 715-1759

                                                    ATTORNEYS FOR DEFENDANT




                               CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing instrumentpas served
                                                                                            upon
Plaintiff herein in accordance with the Rules of Civil Procedure on
                                                                     thisZt’r day of August,
2013.

Trent Griffin                               CMRRR #7012 1010 0002 9077 9936
724 Meandering Dr.
Cedar Hill, DC 75104-6065




                                                          RICHARDS




AMERICAN ZURICH INSURANCE COMPANY’S ORIGINAL ANSWER PAGE
Th:bêa ‘76-359                                           3   -




                                                                                            33
                                                                                  qqq
                                                                                              •“ 000669
                                   CAUSE NO. DC4345893

TRENT S. GRIFFIN,                                 §           IN TUE DISTRICT COURT
    Plaintiff,                                    §
v.                                                §           1O1’ JuDICIAL DISTRICT
                                                  §
AMERICAN ZURICH INSURANCE                         §
COMPANY                                           §
    Defendants.                                   §           DALLAS COUNTY, TEXAS


        1O1 DISTRICT COURT UNIFORM SCHEDULING ORDER (LEVEL 1)


        In accordance with Rules 166,190 and 192 of the Texas Rules ofCivil Procedure, the Court
makes the following order to control discovery and the schedule of this cause:
                                                                                   10
         1.     This case will be ready and is set for thai at 9:00 &m. on 140 €Th&%a*ie “Initial
Trial Setting”). Reset or continuance of the Initial Trial Setting will not alter any deadlines
established in this Order or established by the Texas Rules of Civil Procedure, unless otherwise
provided by order, if not reached as set, the case may be carried to the next week.

        2.      Unless otherwise ordered, discovery in this case will be controlled by:

        ( )     Rule 190.2 (Level 1)

        ØQ      Rule 190.3 (Level 2)

 of the Texas Rules of Civil Procedure. Except by agreement of the party, Leave of court, or where
 expressly authorized by the Texas Rules of Civil Procedure, no party may obtain discovery of
 information subject to disclosure under Rule 194 by any other form of discovery.

         3.      My objection or motion to exclude or limit expert testimony due to qualification of
 the expert or reliability of the opinions must be filed no later than seven (7) days after the close of
 the discovery period, or such objection is waived. Any motion to compel responses to discovery
 (other than relation to factual matters arising after the end of the discovery period) must be filed no
 later than seven (7) days after the close of the discovery period or such complaint is waived, except
 for the sanction of exclusion under Rule 193.6.

         4.      My amended pleadings asserting new causes ofaction or affimmtive defenses must
 be filed no later than thirty (30) days before the end ofthe discovery period and any other amended
 pleadings must be filed no later than seven (7) days after the end ofthe discovery period. Amended
 pleadings responsive to timely filed pleadings under this schedule may be filed after the deadline for


 oP1 DISTRICr COURT UNIFORM SCHEDULING ORDER (LEVE4)                                            Page I



                                                                                                         35
                                                                                               _____-—




 amended pleadings if filed within two (2) weeks after the
                                                           pleading to which they respond. Except
 with leave of court, TRCP 166a motions must be heard
                                                         no later than thirty (30) days before thai.
         5.     No additional parties may be joined more than
 commencement of this case except on motion for leave                   five (5) months after the
                                                         showing good cause. This paragraph does
 not otherwise alter the requirements of Rule 38. The party
                                                            joining an additional party shall serve a
 copy of this order on the new party concurrently with
                                                       the pleading joining that party.
          6a.   y        The parties shall mediate this case no later than thirty
                                                                                  (30) days before the
                         Initial Trial Setting, unless otherwise provided bycouttorder.
                                                                                        Mediation will
                         be conducted in accordance with the Standing Dallas
                                                                                  County Civil District
                         Court On yR garding Mediation, which is avnilable fiomth
                                                                                       eflaflas County
                         ADR Coordinator. All parties shall contact the mediator
                                                                                        to arrange the
                         mediation.

                 C      The mediator has been selected by agreement of the parties:,
                        is hereby appointed mediator. An mediator substitution reques
                                                                                      ted more than
                        90 days afer the date ofthis order ma only be made by motion
                                                                                     for submission
                        to the Court for good cause and under extraordinary circumstance.

                        Unless otherwise ordered by the Court, the parties shall select a
                                                                                          mediator by
                        agreement; if the parties are unable to agree on a mediator, they shall advise
                        the Court within ninety (90) days of the date ofthis order; the Court
                                                                                              will then
                        appoint a mediator.


                        tbytrnZiamrt
                        mediator subsutufio&equested more than 9 days after the date of this order
                        may only be made by submission to the Court for good cause and under
                        extraordinary circumstance.

        1,.     fl      One or more of the parties object to mediation of this matter. Any party
                        seeking an order for mediation shall file an appropriate motion no later than
                        90 days before the Initial Trial Setting and set it for hearing no later than 60
                        days befbre the Initial Trial Setting.

        7.      Fourteen (14) days before the Initial Thai Setting, the parties shall exchange a list of
exhibits, including any demonstrative aids and affidavits, and shall exchange copies of any
                                                                                              exhibits
not previously produced in discovery; over-designation is strongly discouraged and may
                                                                                                      be
sanctioned. Except for records to be offered by way ofbusiness record affidavits, each exhibit must
be identified separately and not by category or group designation. Rule 193.7 applies to this
designation. On or before ten (10) days before the Initial Trial Setting, the attorneys in charge
                                                                                                     for
all panics shall meet in person to confer on stipulations regarding the materials to be submitted
                                                                                                      to
the Court under this paragraph and attempt to maximize agreement on such matters. By 4pm
                                                                                                on the
loin Dwrma COURT UNIFORM
                         SCHEDULING ORDER (LEVEL2                                              Page 2



                                                                                                    36
.4


     Thursday before the Initial Trial Setting, the parties
                                                            shall file with the Court the materials stated
     Rule 166(e)-(l), an estimate of the length of trial,                                                  in
                                                          designation ofdeposidon testimony to be ofibred
     in direct examination, and any motions in
                                                    limine. Failure to file such materials may result
     dismissal for want of prosecution or other                                                            in
                                                  appropriate sanction.
            PIainliWPIaintjff’s counsel shall serve a copy
                                                           of this Order on any currently named
     defendant(s) answering after this date.


     SIGNED ON: _SFP 17         2013
                                                                    AID B PRESDIN
     cc: Counsel of Record/pm Se Parties and Mediator


     AGREED MW APPROVED;




              Attorney




 Defendant Attorney                                             Sccondaq Attorney




 Defendant Attorney                                            Seconday Attorney




 soz DISTRICr COURT UNIFORM SCHEDULING ORDER (IXVEL)                                              Page 3



                                                                                                       37
S


    S.

                                       -
                                                                                                                         CERT MAIL
         FORM NO. 353-3 CITATION
         THE STATE OF TEXAS                                                                                            CITATION
         To:
                     AMERICAN ZURICH INSURANCE COMPANY
                     SERVE REGISTERED AGENT CORPORATION SERVICE COMPANY                                                DC43-05893
                     211 E 7TH STREET #620
                     AUSTIN TX 78701-3218

         GREETINGS:                                                                                                   TRENT S GRIFFIN
         You have been sued. You may employ an attorney. If you or your attorney do not file a written                      vs.
         answer with the clerk who issued this citation by 10 o’clock a.m. of the Monday next following the      AMERICAN ZURICH INSURANCE
         expiration of twenty days after you were served this citation and petition, a dethult judgment may be          COMPANY, et al
         taken against you. Your answer should be addressed to the clerk of the 101st DistrIct Coin at 600
         Commerce Street, Ste. lOt, Dallas, Texas 75202.

         Said Plaintiff being TRENT S GRIFFIN                                                                            ISSUED ThIS
                                                                                                                    8th day of August, 2013
         Filed in said Court 29th day of May, 2013 against
                                                                                                                     GARY HTZSIMMONS
         AMERICAN ZURICH INSURANCE COMPANY                                                                            Clerk District Courts,
                                                                                                                      Dallas County, Texas
         For Suit, said suit being numbered DC-13-05893. the nature of which demand is as follows:
         Suit on OTHER (CiVIL) etc. as shown on said petition, a copy of which accompanies this citation,
         If this citation is not served, it shall be returned unexecuted.                                          By SHELIA BRADLEY, Deputy
         WITNESS: GARY FITZSIMMONS, Clerk of the District Courts of Dallas, County Texas.
         Given under my hand and the Seal of said Court at office this 8th day of August, 2013.                      Attorney for Plaintiff
         A17EST: GARY HTZSIMj.                                                     County, Texas                   TRENT S GRIFFIN PRO SE
                                                                                                                    724 MEANDERJNG DR
                              .
                                                                                Deputy                              CEDAR HILL TX 75104
                   ..y.                                                                                                  (972) 291-9569
               U                                                                                            V



                                                                                                                 DM,LAJCWITY CONSTABL*
                          •       -:                                                                               US      FEES NOT
                                                                                                                                               jA
                                                                                                                                  ____      __________
                                                                                                       ______o’clock______




I


                                                                                  OFflCEWS RETuRN                                              Fl L E D
         Case No.: DC-13-05893                                                                                                                 SEP 1 2
         Court No. 101st District Cowl
                                                                                                                                                                             //“
         Style: nEWT S GRIFFIN
         vs.
         AMERICAN ZURICH INSURANCE COMPANY, et al


                                                   day of        1A.zo                           ,                       -A    11 Execuced at cR   I € ‘W’) 4aZ’
                                                                             Lf
                                                                                   o’clock             .M.onthe                dayof__________________
                                                                                             B
                                   delivalng to the wIthi named___________________________________________________________


                                                                                             a       is leadin first    ClSi                         The distance actually traveled by
         me in serving such process waS                miles and my fees are as follows: To cerlifij which witness my band.


                                         For serving Citation                                                                 S7(J)                  ARYFn2sIMMoNs
                                         For mileage                                                                                                 DISTRiCT CLERK
                                         ForNotssy
                                                                                                                                                         COMMERCE STREfl
                                                                                                                                                            TFJCAS 752O2.4
                                                                          (Must be verified if serv
         Signedandswomtobythesaid                                          beforemethis               dsyof____________
          to cettIf’ which witness my hand and seal of office.




                                                                                                       Nowy Public                  County___________




                                                                                                                                                                                  39
    qa    n_14’PFni’ nm/4 ccfl7n n-n i?                                         -,c%”mci                1
                                                   I
                                               e

     UNITED STATS
     POSERWCE




Date: August 21,2013

MAIL MAIL:

The following is in response to your August 15. 2013 request for dehvery inlbrmahon on
your Certified Mail W/RRE item number 92148901066154000019756291. The delivery
record shows that this item was delivered on August 14,2013 at 8:14 am In AUSTIN, TX
78701. The scanned image of the recipient Information is provided below.


                            zar
                                                       I--

Signature of Recipient:

                            4
                            I                                                                   7
Address of Recipient:
                            1t’                E Uk
Thank you for selecting the Postal Service for your mailing needs.
                                                                     Office or postal
If you require additional assistance, please contact your local Post
representative.

Sincerely,
United States Postal Service




 The customer reference Information shown below      is not validated or endorsed by the
 United States Postal Service. It Is solely for customer use.

                                   0C13-5893 SB
                                   CORPORATION SERViCE COMPANY
                                   AMERICAN ZURICH INSURANCE COMPANY
                                   211 E7TH ST STE 620
                                   AUSTIN TX 78701-3218                                    40
                                                                                                           flLED
                                                                                               D AL LAS COU NW
                                                                                            6/2712014 5:03:09 PM
                                                                                            GARY FI17SIMMONS
                                                                                                 DISTRICT CLERI


                                 CAUSE NO. DC-13-05893

ThENT S. GRWFN,                               §           IN THE DISTRICT COURT
     Plaintifi                                §
                                               §          1OIJUDIC1ALDISTRJCT
                                               §
AMERICAN ZURICH INSURANCE                      §
COMPANY                                        §
    Defendant                                             DALLAS COUNTY, TEXAS

                         DEFENDANT’S NO-EVIDENCE
                   MOTION FOR PARTIAL SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

       COMES NOW, American Zurich Insurance Company, Defendant in the above-entitled and

numbered cause, and makes and files this, its No-Evidence Motion for Partial Summary Judgmenç

and would respecthilly show the Court as follows:

                                               I.

                                 STATEMENT OF FACES

       This lawsuit stems from an underlying workers’ compensation claim wherein Plaintiff             ¶3,
sustained compensable injuries to his neck and left shoulder on February 21,2012.

                                              U.

                                DISCOVERY STATEMENT

       An evidenfiaiy hearing in this mater was held at the Division ofWorkers’ Compensation on

January 24, 2013, to decide the Ibilowing disputed issue: Does the compensable injury of

February 21, 2012 extend to include a left paramedian disc protrusion at C6-7 and cewicai

mdiculopathy/radicuiids?




                                                                            PAGE 1
 DEFZrWAFSr’s No-EvwEta MOTIoN FOR PAMIAL SUMMARY JUDGMENT
                                                                        -



 WCW359I
                                                                                              41
        Alter hewing all of the testimony and reviewing all of the
                                                                   evidence, the Hearing Officer
 correctly determined the compensable injury did not extend to
                                                               include a left pammedian disc
 protrusion at C6-7 or cervical radicu1opathy/radculitjs.

        Plaintiff appealed the Contested Case Hearing Decision and Order
                                                                         to the DWC Appeals
 Panel, which affirmed the Hearing Office? s findings in theft entirety.
                                                                           Thereafter, Plainflifflied this
lawsuit. Because Plaintiffhas no competent medical evidence that his
                                                                     compensable          injury extends
to include the above-referenced diagnoses, Defendant hereby files this No-Evidence
                                                                                          Partial Motion
for Summary Judgment

        Plaintiff filed his lawsuit on or about May 29, 2013. Since that time, the parties have

exchanged written discovery, which has been completed. An adequate time for discovery has passed

and this Motion is ripe for hearing.

                                                 111.

                          GROUNDS FOR SUMMARY JUDGMENT

       By this Motion, Defendant seeks a partial final judgment which will dispose of one of the

claims which have been asserted against it on the following grounds:

       (a)     Summary judgment pursuant to Texas Rule of Civil Procedure 166a(i)
               because there is no evidence as to an essential element or elements of
               Plaintiffs claim of extent of injury beyond a cervical sprain/strain and left
               shoulder sprain/strain.

                                                 IV.

                    STANDARD OF REVIEW FOR NO-EVIDENCE
                 SUMMARY JUDGMENT UNDER TEX. It CIV. P. 166a(i3

       Under Texas Rule of Civil Procedure l66aQ), when there is no evidence of “one or more

central elements” in plaintiffs cause of action after an adequate time for discovery has passed, the

trial cowtmustgrantsummwyjudgmentunlesstheplainfiffproducescompetentsummwyjudgment


UzFma4nr’s No-EVIDENCE MCrn0N FOR PARna SUMMARY JUDGMENT - PAGE 2
Thn
                                                                                                        42
held that omitting the but-for language in the dcfiuiflon of “producing cause” was legally
                                                                                             incorrect
and erroneous. Cnimp, 330 S.W.3d at 224.

         Texas courts have long held expert testimony is necessary to establish causation as to medica
                                                                                                       l
conditions outside the common knowledge and experience ofjmors. Insurance Company ofN
                                                                                      orth
America v. Myers, 411 S.W.2d 710, 713 (Tex. 1966); Roarkv. Allen, 633 S.W.2d 804, 809
                                                                                      (rex.
 1982). At the outset, such testimony must come from a person qualified as an expert on the subject

of the testimony. Texas Rule of Evidence 702; Roberts v. Williamson, 111 S.W.3d 113, 121        (rex.
2003).

         Texas and frdewl courts fluter universally hold competent evidence is required to prove the

existence and nature ofa condition and a causal relationship to the event in question, with the thai

judge being charged to scrutinize the expert evidence offered for reliability. EL du Pont de

Nemours & Co. v. Robinson, 923 S.W.2d 549, 554 (Tex. 1995); Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993). Since Daubert and Robinson, Texas courts have held

“temporal proximity alone does not meet standards of scientific reliability and does not, by itself,

support an inference of medical causation.” Guevara v. Ferrer, 247 S.W.3d 662,667 (rex. 2007);

City ofLaredo v. Gana, 293 S.W.3d 625,630 (rex. App.-San Antonio 2009, no pet.); Crump, 330

S.W.3d at 219.

         In Guevara, the Supreme Court went even further, rejecting “the false inference that a

temporal relationship proves a causal relationship.” Guevara, 247 S.W.3d at 667, quoting Rolen v.
                                                    (6U
Hansen Beverage Co., 193 Fed. App’x. 468,473              Cr. 2006); Porter v. Whitehall Labs, 9 F.3d

601,611 (7thCfr 1993).

         The Guevara court further held:




DKWMfVSNO4VWENpMOnONnRP11IYJUI1 -PAGE 4
m!qn6-Th
                                                                                                    43
         A temporal relaüonship by itself, produces no evidence of causation.     .me fact of
         a temporal relationship establishes nothing except a relationship in lime. Proof of a
         temporal relationship merely suggests the possibility ofa causal connection and does
         not assist plainfliTh in proving medical causation.

Guevara, at 667-68, quotingb re Breast ImplantLitigallon, 11 F. Suppid 1217,1238-39 (D.
                                                                                        Cob.
1998).

         b City ofLaredo, the court, drawing heavily upon Guevara, held that while evidence of
                                                                                                  an
event followed closely by manifestation or treatment far conditions that did not appear before the

event raises suspicion that the event at issue caused the conditions, “suspicion has not been and

is not legally sufficient to support a finding of legal causation.” City ofLaredo, 293 S.W.3d at

630, citing Guevara, at 668 (emphasis added).

         Accordingly, Defendant is entitled to summary judgment on Plaintiffs claim of extent of

injury as Plaintiffhas not produced any competent evidence which would create a genuine issue of

material fact on this issue.

                                                 VT.

                                          CONCLUSION

         WHEREFORE, PREMISES CONSIDERED, Defendant, American Zurich Insurance

Company, respeefflilly prays that this Honorable Court enter partial summary judgment in favor of

Defendant pursuant to Texas Rule of Civil Procedure 166a(i), and grant all other and further relief,

in law or in equity to which Defendant may be justly entitled.




DmNDANT’S No-EVa€NCE MOnON ,ORPAKUAL SUMMARY JUDGMENT PAGES                 -



n4r6-3592                                        -
                                                    Respectfully submitted,

                                                    WE SIVERA FIRM
                                                    A PmtèssionaI Corponfion


                                                    BY:         /s! Todd Richards
                                                            Todd Richards
                                                            State Bar No. 16855500
                                                            Danyl J. Silvem
                                                            State BarN. 18352280
                                                             1015 Providence Towers East
                                                            5001 Spring Valley Road
                                                            Dallas, Texas 75244
                                                            TELEPHONE (972) 715-1750
                                                            FACSIMILE (972) 715-1759
                                                            frichrds@silveaIaw.com

                                                    ATrORNEYS FOR DEFENDANT



                               CERTIFICATE OF SERVICE

       The undersigned hereby certifies that a true and correct copy ofthe foregoing document was
served in accordance with the Texas Rules of Civil Procedure upon PIthnfiff on this, the 27th thy
of June, 2014.



                                                             Is/Todd Richards
                                                          TODD RICHARDS




DuvwAln”tNo-EVmENa M0nm1 FOR PAflTAL SUMMARY JUDGMn PAcE 6               -




                                                                                                    45
                                                                                                                FILED
                                                                                                   DAUAS COUNTY
                                                                                                6/27/2014 5:32:54 PM
                                                                                                GARY FITZSIMMONS
                                                                                                       DISTRICT CLER)


                                   CAUSE NO. DC-13-05893

ThENT S. GRWFTN,                                 4          IN ThE DlSThJC COURT
     Planfiff                           .        §
                                                 §          lOVT JUDICIAl. DISTRICT
                                                 §
AMERICAN ZURICH INSURANCE                        §
COMPANY                                          §
    Defendant                                    §          DALLAS COUNTY, TEXAS


                 DEPENDAI’(Vs MOTION FOR SUMMARY JUDGMENT


TO Thffi HONORABLE JUDGE OF SAD COURT:

        In support of this Motion for Summary Judgment, Defendant American Zurich Insurance

Company respectfUlly states:

                                                 I.

                                        BACKGROUND

        Plaintiff sustained compensable injuries on February 21,2012, in the form of a cervical and

left shoulder sprainlstrain. Defendant accepted the claim as compensable and initiated temporary

income benefits (riBs) on Febnmiy 22,2012.

         On June 22, 2012, Plaintiff was examined by Andrew Cole, M.D. for a DWC appoiuted

designated doctor evaluation to assess maximum medical improvement and impairment rating.

Dr. Cole determined Plaintiffhad reached maximum medical improvement on April 26,2012, with

‘a 0% whole person impairment rating.

         Plaintiff disputed the designated doctor’s detenninations regarding maximum medical

improvement and impairment rating and a contested case hearing (CCXI) was held on January 24,

2013, to decide the following disputed issues:




DEWNDAI4T’S     Monow FOR &JlbWARY JUDGMENT PAGE 1    -



 TRIcJl76357a
                                                                                                  46
           1.   Has Plaintiff reached maximum medical improvement and if so on what
                date?

       2.       IfPlthnfiff reached maximum medical improvement, what is his impairment
                rating?

       After hearing the testimony and reviewing the evidence, the Heating Officer issued
                                                                                          a
Decision and Order that Plaintiff reached maximum medical improvement on April 26,2012,
                                                                                        with
a 0% impairment mting

       Plaintiff appealed the CCH Decision and Order to the Division of Workers’ Compensation

Appeals Panel which affirmed the CCH Decision and Order in favor of Defendant

       Thereafter, Plaintiff filed this lawsuit seeking judicial review of the underlying CCH

Decision and Order and Appeals Panel decision.

       The undisputed evidence establishes Plaintiff reached statutory maximum medical

improvement on February 26,2014.

                                               II.

                            BASIS OF SUMMARY JUDGMENT

      Defendant is entitled to ajudgment as a matter oflaw on Plaintiff’s dispute ofthe designated

doctor’s maximum medical improvement and impairment rating certification since said

determinations became final after Plaintiffs statutory maximmn medical improvement date.

                                              in.

                           SUMMARY JUDGMENT EVIDENCE

       In support ofthis motion, Defendant relies upon the following.

       •        Designated doctor report of Andrew Cole, M.D. (attached hereto as
                Exhibit “A”);
       •        CCH Decision and Order (attached hereto as Exhibit “B”);
       •        Appeals Panel Decision (attached hereto as Exhibit “C”); and
       •        AThdavit of ffichelle Cabmiles (attached hereto as Exhibit “D”)


DEFENDANT’S MOTTON FOR SUMMAItY JuntxNr PAGE 2   -


TR6fl
                                                                                                 47
                                                 we
                            SUMMARY JUDGMENT STANDARD

       Summary judgment is proper when there is no genuine issue as to any material fact, and “the

moving party is entitled to judgment as a matter of law.” Ta. R. Civ. PIoc. I 66(a)(c) (Vernon

Supp. 1998). A defendant is entitled to summary judgment if the summary judgment evidence

establishes as a matter of law aplainiif cannotrecover upon his or her claims. mx. K Civ. PRoc.

166(a) (Vernon Supp. 1998); Center Realty. Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). A

defendant satisfies this burden by either negating one essential element of each of the plaintiffs

claims or establishing an affirmative defense. Ii Once the defendant shows it is entitled to

summary judgment, the burden sbils to the plaintiff to “put on competent controverting evidence

that proves the existence of a genuine issue of material fact” in order to avoid summary judgment

• Id.; Hail v. Stevenson, 919 S.W.2d 454, 464, (rex. App.   —   Fort Worth 1996, no writ).

                                                 V.

                             ARGUMENTS AND AU’mORnwS

       Plaintiffs challenge of the designated doctor’s maximum medical improvement and

impairment rating certification fails as a matter of law.

       A.      Applicable Law.

       •       Burden of Proof The party appealing the decision on the issue described
                                   —




               in §410.301(a) has the burden of proof by a preponderance of the evidence.
               See Thx. LAB. CODE ANN. §410.303.

       •       ConsidenUon of Appeals Panel Decision In a thai to the court without
                                                            —



               a July, the court in rendering its judgment on an issue described by
               §410.301(a) shall considerthe decision ofthe Appeals Panel. See mx. LAB.
               CoDE ANN. §410.304(b).




D€FEI1DANr’S MoTioN FOR SUMMARY JUDGMENr PAGE 3    -




                                                                                                48
               Evidence Except as provided in §410.307, evidence ofextentofimpairment
                            -



               shall be limited to that presented to the Division. The court or juty, in its
               determination of the extent of impairment shall adopt one ofthe impairment
               ratings underSub-chapter G, Chapter408. SeeTEx. LAB. CODE §410.306(c).

       The undisputed acts establish that the only impairment rating presented to the Division of

Workers’ Compensation is that of the designated doctor Andrew Cole, M.D. Accordingly, as a

matter of law, the ffial court has ho greater authority to re-evaluate an impairment rating after the

statutory ivilvil date than the Division. Center Insurance Company. Successor to Business Insurance

Companyv. C&Polli#, 242 S.W.3d 112; 2007 Tex. App.

                                                 VI.

                                          CONCLUSION

       The summary judgment evidence affirmatively establishes that the only maximum medical

improvement and impairment rating evaluation presented to the Division was that of the designated

doctor and, as a matter oflaw, the Court must adopt that certification since Plaintiffreached statutory

maximum medical improvement on February 26,2014.

                                                 vu.

                                     PRAYER FOR RELIEF

        WHEREFORE, PREJvUSES CONSIDERED, Defendant American Zurich Insurance

Company, respeethilly prays that this Court set this Motion for hearing, that upon hearing the Court

grant the Motion thr Summary Judgment Defendant flwtherrespecffiilly requests all reliefto which

it is otherwise entitled.




 DEFENDANT’S MOTION FOR SUMMARY SUDGM&C PAGE 4      -

 flkJfl3i
                                                                                                      49
                                                      Respecthilly submitted,

                                                      THE SKIVERA FIRM
                                                      A Pmib.ssionaJ Corporation


                                                      BY:      1W Todd Rithards
                                                              Todd Richards
                                                              State Bar No. 16855500
                                                              Danyl J. Silvem
                                                              State Bar No. 18352280
                                                              1015 Providence Towers East
                                                              5001 Spring Valley Road
                                                              Dallas, Texas 75244
                                                              TELEPHONE (972) 715-1750
                                                              FACSThE (972) 715-1759
                                                              uichardscsilvera1aw.corn

                                                      AITORNEYS FOR DEFENDANT



                                CERTIFICATE OF SERVICE

        The undersigned hereby certifies that a tue and correct copy ofthe foregoing document was
served in accordance with the Texas Rules of Civil Procedure upon Plaintiff on this, the 27 day of
lime, 2014.



                                                                1W Todd Richards
                                                            TODD RICHARDS




DurmArff’S MOTIoN R SUMM.4xv JUDGMENT PAGE 5      -




                                                                                                50
01/12/2013 12:47 FAX                             SILVflA PIR
                                                                                                       Ia,003




                                          CAUSE NO. DC-13.05893
      WENT S. GRIFFIN,                                              IN ThE msmia COURT
                                                                     -




                                                       I
      V.                                                            ioiJucutrnsnn
                                                       §
      AMERICAN ZURICH INSURANCE                        *
      COMPANY                                          §
          Defeala                                      *            DAllAS COUWlY, TEXAS

                                   Eusnis RRCORBS AflThAVU


      STATE OP ThXAS
     cotmwopQdlu

              BEFORE       ME.      the     undersigned authority, pcrsontl ly appcarcd
                                               —, who, being by me duly sworn, deposed as thilows;

            My name        C n t1&. ( £iifrst                 I am over twenty-one (21) years ofage,
                                                                .


     of sound mind, capable of making this affidavit, and personally acquainted with the facts herein


              Tam the Custodian of Records r Andrew Cole M.D.. Attached hereto aim          !JL.
                                                                                               page(s) of
     records from Andrew Cole M.D. concerning Treat S. Griffin. These said &page(s)crf mcords are
     kept by Andrew Cole MD; in the regular cowan of busiuc said it ws the regular comae of
     business of Mdrcv Cole M.D. for an employee or repmsenntive of Andrew Cole M.D., with
     personal knowledge ofthe act, event, condition, opinion, ci diapods recorded to make the records
        to transmit information hacof to be included In such mmnorandtmi cc records, and the records
                                                                                                                     I0
     were made at or nan the time of the act, event, condition, opinion, or diagnosis, orrennnaMy soon
     thereafter, The records attached hereto are exact duplicates of the originals, and it s a nile nol to
     pennit the original Eeoords to leave the mcmises:




                                                                                            on this   It
     day of




                                                        MV COMMISSION ExPthtS:              c*-i&4(3ofl



                                                                                        —    ‘S
                                                                                                                52
         __




         ,          •
                        teSs Di adment of k*unnts
                        Dl*SMW0I$Wcompaewflcn
                        7611 MlhCflaDgbe.thaaIoO.we4,
                        kfllX W44-*W
                                                                                                       us (2.        iqtc,q-
                        (600) 2524081 Ønie •mi
                                             490-1047 tn

                                                              port of MedIc’ijaIuaflon




                            ,gfl                          -
                                                                      -




                                                                                           -




                     nd%thb npM S Ta. Athiiffihfrfl Cads (TAC)fl.i oun nh .a.iba4
           Dar C Dwsá byTmaq                          dls Tmakç DONS p.dp,g Ds
    B  ‘—‘
           —
              a4—4
       MewrMCr2’setedeu RUE Dana cwov.d W IfCwC tomta UMh wt*......p1
    ICTh Jansat LL.Ata W 28 TAG 91*1 Ia 19a meat. niva — be
                                                                             as. mWIt Ooor m.euo,
                                                              kite .bcdr8w ‘maa3   4.3mi.

          64r—
    wrrrn.!S_   m/1
    It IflISWIIVfl                -,_,_Ifl ‘S.d NI WSI1, — e0 14041 OW toSofl -                                     I
                                                                                                                     -      -                -




             ai n.an                       oi....,.M (CIWat        Is e.Seat a aWti. based tçai ,.....cfl , fl. 1*4*
             ra*miflatigP*nrnmmy to .7 b*ayrmoJ.er .......                      be .*4-t.
             swamp        learn lilac ot (1) tha sit or the Weth na afifle date thit temporary bloom banella (tEe) begmi Ii CW or
                                         0 the del. to wiidi MeAl ogtided by TDI.DWC purajait t$Jca Labor Code $O8.I04.
    a)       Yea, lcaQ, that the         relélad DSrAWitRY1NJCUNICAI. flik cow awq on
                     b..pre.pe#ndat$ at have hi*idid dcciqltlc ri*g to Pd. caRdon hi S.                          prnrmUa - OR.
         -




         flN lcmbUNttheentØoyaaUa NOTmS04M Waaleeq,a.dtorefli WMloiboA_I_1
              The ,enon Urn employee has not reached MSM I doaanaNad hits attached nwatly.
    Mole 11* bat P4 on siwkve. m.dn .WCba a oiSy 1*11 dose rmt fltr 01                                   nfl I rio     eiUUed tosnedea ba9u.        L
    N.
    U.             .l$fayes Sm. meshed SThI, MoflaSS.r         emØaye.       pritaneW te...L.3n •                compinite Winy.
              lnipalrmaM’ man any ntoidc or Relational abnormally ca lose edetlng after MMI that reaMs from a aompna$. hny at ii
             pcwuned to b, permalere. The bWMg that h7lpakmmit ade*s must be made based upon obØSe dWosI S labarieiy i*is nrns*,0 ,
                   Cl hlnracI rflUd% from a awrçanaabls rEtRy, based tca,, cowatenl oweaw matal addeice 11* la rdeveiwfly coi*                 a
                          a daiWed doats, Qtfl Wrme on hi. eu*dve spØonw pezodrnd by a
    e)fll ce9,ffuaI Urn astoya. don not Isv. ssy,,..,...d k,..%mit as moult ords eonipeIse bfly. OR.           -


    b)gjj cs*thMfl .ao,fl bapewsiw hlwbn Ni tAlc! Sw coclwensWa II*ay. its nnp..n4 Inwfl,s                           I      , dhv—_a

      7belflnad hi socoidsic. with the raq*emerda otIs Taa tact Code and Tat Adireftkje Code. The attuned ana5ve j,
         and docunflllon used ki Sw osilalon ot Is frripemnent mUng assigned usbg the epopdale tøn. figwn, or woikiben froth the ftflowing•
         edlon of hi. Q4e MIs E%Wue&a WPema’s,W Avwakmere published by the Mrndoan Medoal Macdalton (M1$O:
      OW* educe. aeoctidjih*Ig. Pebwsy 1989 -Oft-                                                    —
                                                                                           to May 10.2000.
       • turthadlion, i’ r, Y wt pitng. Ixtiaw correcuons cit onare’ Issued by the AMA
    Nfl no fl*n1eatoaQ%4eriCrrg. A *dor i fl                                                         —
                                                                                               en 7alimag rldtt kidudog 10% mfl, Wfl5

    1ArfSiIRir;iLcEL1j

     niH. If an hrtialnnr rating knan Halgtt I ce.% that I have coirçleted the mquhd I’I.il, aid bathig end tuwa erfl cadificationby
     esdgn Inwabmva mfr 1,8w Teas workfl catmmuttoji intern or have $ceWad spear pwidalon by 1Th to                   tidily MeAl and aealwi
     btçekaiad ral*tg. I caiders4aid that maldog a                   a                       dan or,qself is a nfl that can intuIt in fines
     hwacnrnerl aid mflutioii O(U* raped.




I                                                             R   I AGREEI
                                                                  I AGREE I
                                                                              I DISAGREEwITh thsM.do               SIfltelpakmet -Qft
                                                                              I DISAGREE vdlh the erpthmere re*q asigned by the cedlttgd4,
                                                                                 Claim Ii a clIme that can j


I                                                                 miirnimuu
     onn own                                                                                                                             Ps1. 1042



                                                                                                                                               53
                           ______




                                                                                                                                            •1
                                         ThflJJflNCE
                                                         ilLS                       a. mo            ty-p,    fl 71235-                               —



                                                                June 04, 2012

          ANDREW T. COLE NO
          4525 N AIRPORT FW STE 590                                         Enipleyee                     GRIFFIN, ThENT S
                                                                            OWCNu.:                       1219269950
          IRVING, TX 75062—cB
                            —                                                                             ANLRICAN ZURICH INSURANCt
                                         -
                                                                            CarrkrND.:                    822180763500Q10121
                                                                            Dateoflnjury:                 February 21, 2012
                                                                            Empleyer:                     NM-GREEN CO


                                                                                 Iran 13-Pep....       W_J1i..-
 itesnhl - lir.&.a Douft kifrnn.tii1_                               -




       LfcaonNwthc       mmwzooinu
       Telephaic Nanba     (97Z 670.5200
                  Jun. 22,2012
                                                                                                           -
                  ItOO?M
                  c-i imzDxaiz, otpjp                                            C       Detent UeabWty olUt au$amo                 ta b

                                                                                 Q       Ddua*e the ad dthe ailcte’s compensable


                                                                                 C        Detunn1lethvtheeo1pIo)tfldlnbflftyisa dimcg
 tanifl .ttngDocsrwtt._a
     Doda     EDWARD nAiiK WO(Sm MD
     UocenNaaba       P1064          -                                           Q        Ot (S       It bsuee)
     Tetephar Ibnbs   (94I 484-700(1

       MOTh TO ThEATIJ(G DOCTOR AND CARRIER:
       Said aedlel raiaih to correqxzdeioe adfla mzrevaso side.
                                                           COMMIIONER ORDER
                                 APPROVAL OF REQUEST FOR DESIW(AThD DOCTOR flAWNWIIOH
  [It Tarn              frmance. Division of Woskezu’ Compensation fFDI-DWC) reaivM a request (DWC Ponn-0321 Request for Doslgnniea
          P.ia.at  ai) o  aiim                   de                                          Ut           1Ø)aan4cd in nun #3 an nt qs
 Pocte
 wsrreviewed-and-enldatd;- and-the Cocnm            haioso    f Wotea    ’  Compensatio    n has  q..Ini      us ..qK as authorizeflyibx j-a
                                                                       copy   of the DWC      Foum4    fl Wed   to nqucst this eounlnUon, you may contact
  fl408.0041 ad 7Th3)WC mla If >tu do not shady have a
 1U-DWV at      1400252-703   1 to obtain a  copy.
      is uE ODEUD by Ut                                         of WmbW Compensation that panics amend In this Oider comply lth ills dvJeitae
  spaiffid below. The acanthisthm oe*fled          ...a      to  this Cidur aid all rcpotta ad ennilcation tied tamE A Ut Ode-                      coni$)t
                 1 IU-DW    C  ruin  ad   jxmlün      of  the   Tens   Ltha    Cola     Pailte       rtsal by          pereon to cor4y ith this Or is an
  wfl    u1qJL’
                                                                                                       labor Code or 1D1-DWU rules.
  *nlnleflUve violetIon and may subject Ut ento sanctions as authorized by the Texas
                                                                                                                 attend the cemineden spcdBM It this Order.
      Is mJRTflUORDRRSD ThAT ThE WUED UWWVEE NAMED ABOVE ALL Cod. 40LW41 am listel kanti above.
             ad   ida.t     anbor   oldie    &_        1etor      ass(wwd   is aceosd    un  wids  T       [shot
   Tb arwltmioa ste, time, and location sac               5boa )Ø r—jnatla Ioçk mq ad be changed without — spin) of O
   Udi. Inse4    employee ftus  or Rubles   to çpar    ft  this oxnmhwtion without good caqse. Ut bismncc cenla may mispmid pamcnt of income
   baths lit rieduling conflict penile Ut              injarod    employee from attending Ut ae±aUon as sdm&led, Urn InJ’Sed anpioy,e must
                                                                                                       iA smt—&— Abl..d uramisaUt am
 • 1_LJ. gah.ak., by esillag Ike A’—-’-l &tài least 24 bowi pilate Ut
   occ withIn 21 calsade-   days oldie  osigisally              examination.
                                                                                      NAMED ABOVE aAIL patm the eamlnetion of jg Injured
   IT IS FURThER ORDERED ifiAT ifl DWONAThD DOCTOR                                 âo,e.   lie caaâdimi location may net be changed without the prior
   employsa  at Ut  examination  location  and  oa  Ut  date   and  time   diowa
                                                 conflict provat   a  the  dedpaw.1     doctor  ten               the .a-Iki as athálol, the dajijed
   qqrnl of the 1Th-DWC. ifa soheduling                                                                             Ut • -‘-‘ wocéula A rrohga
                           the uttamlant by cW the hijured ompice                  e at  lea   24 hr      —      to
    doctor mat                                                                                   a    NUt    designated   doctor ha ad N dvidae14
    uiniIcat must occur WIfidi 2) dadwk          ysdthc     aIhiell    y  scheduled  lIc
                                                                                         thafl report this violation  to the 1Th-DWC aid resáednje
• gla three (3) iaoddng days prior to the uramiation, Ut designated doc
                                                                   —    * I. —       •—.—I__




                                                                                                                                                    54
Andrew 1’. Cok, M.D., SLP.K
OxUpujbadMdWae
WMdGrUpDFW
442W. Abylort Fi 230, frvb 1775062
Pk f972) 5704200 Far (972) 5704933
June 22. 2012
Ct                                    Trent S. Griffin
[NC Manbec                            12192669940
lnsurwic,.Cflr                        American Zurich Insurance Compahy
Dteotl4wy                             February 21,2012
                             DESIGNA1E) DOCTOR EVA WATIOtI
MECHANISM OF HLAMY:
This Is a 46-yew-old anlnee who notes that he repetitively on the date of by ovem*end
his neck aid shotider reaching far ties hi Na Wotic a a plmmadet The numbs notes that
while at work he bent N. neck sideways to the left on several occasions and on seveç
occasIons reached under the counter wtli his left hand feeling a pweettssla all the way to the
tips of his fingers. Thereafter he experienced neck and shoulder — and Ices of funollon.
 PRSXAWNM1ON DISCLOSURE AND CONSENT
This designated medical evaluation of the above-named examlnee was carried out by myseft.
 Prior to the evaluation, the coerninee was ktnned that the Texas Depaunent of Insnnce, the
WodWs Compensation DIvision, was requeetkig tiNe exflnaflon. The aim of this evalua&n
was to detennine an kiupeinnent rating, based on the American Medical Macelation G&14nj2
the Evaludon & Permanent lmnathnent. Fourth Edition. ft was alec explained to the eXamines
that this ineeung was for the purpose of en objective assessment only and not for care,
treatment, aroonsultalbi. Themftm, them would be no doctor-patient relationship established
as a result of this evaluation. The exfliee fully understood the conditions of the evaluation
and gave fiffi consent for the Interview and medical evaluation. This result of this evaluation is
based on Information provided by the examlnee, Na physical examination, and a review of
medical recoida Mdlfional testing will be obtained by the designated doctor in this case. We
will obtain a consult and bilateral upper extremity EMO nerve coiflidlon velodty study. We wo
also obtain a shoulder MRI.
HiSTORY OF PRESENT INJURY:
11* 46-per-old examines was Initially examined and noted at th. time to have decreased
range of motion of the cervical spine. Ha had trigger points prnesl In the parsepinal muscle.
There was spasm of the ceMoal paravedebral muscles noted on the left at that time. There
was decreased motion with tenderness of the shoulder; however them was no HawkIns or Neer
sign noted. Neumlogic examination noted at that time normal rellexes hi the upper and lower
extremity end cranial nerves were noted to be intact; however there was noted to be a poeftive
Spuding test on the left. Still, motor and sensory examination was noted to be Intact at that
time. The diagnosis was cervical radicuiltis with a sprain and stain of the left shoulder Initially.
The patient was prescrted physical therapy and was placed on mtdUple medications, siong
with were Flexeru, Ibuprofen, and tmmadd.
The exmnhiee underwent a ceMcsl MRI wNch noted 023 disc bulging without masseffect,
end CO-i isif pnnediwi dIsc 6-mm pmfrueion which m&My compressed th. ventral cord, No
EMO was obtained or available for me to review at this time. The patient had a cervical x-ray
which was unremarkable, accodng to a report, and a left shoulder x-ray which was
unremwkdie according to the report.




                                                                                                       55
    Trents.GrlN,i
    Page 2
    Deq*e conamyalive trend the examines notes no sigr*aM ciwige In smiptoms.
    The t*meWs case tmderwed a peer review on May 2, 2012 wIthout float eenatj
    wh(th con&Med of a xevtew of medical recaile. That peer review noted that the exam thee had
    siStered a cervical aid shoulder strain and that the present fflngs t continued were related
    to undedyfrig degenerative dies in the spine. The findIngs hi the shotider were noted to be
    ptknarfty related to the cervical preexisting findings and also to underlying degenerai
    changeskitieshotider. ShouiderMRihaeyettobeobtahied. Mthedeslgnateddootor
    ewilna&n the examhiee notes that he continues with paraspinal tenderness to this date a
    has experienced severe pain hi the neck He states that he lies occasional numbness and
    thgling from the shotide, to the leftband, worse with activities. The examine Is not working at
    this *ne. It Is noted that the paled has had a perfoanunce evaluation and was noted to b
    perfonning at lea than sedentary POt and that his Job reqa*ed med*an POt

    PHYSICAL B(AMINATION
    Gennh The esn*iee is wel developed and in no acute difles.
    Musculosbiew: The shedder afliatfon on the left side notes deaeaeód re of motion
    of flexion and adduction prlmfl. The fiedcn Is level 130 degrees end adducuon Is Umited at
    140 dogma Rlgl*&ded shoulder examination Is essenflaliy normal with fiedon of ieo
    degrees and adductian of 170 degrees.
    Mthough them Is no noted complaint of a knee Injury, the request has required examination of
    the Imee with noted 130 degrees of fie,don with full extension, no instability, and noted
    negative MoMny. negative pIvot negative Lachman, no swellk, aid no tenderness. There
    was no popping noted. It should also be noted that on the left and rVt shoulder them was
    negative Nw and negative Hawkins sign and negative apprehension sign.
    Cervical SpIne: Examination of the osital spine notes decreased cervical fie*n of 4Q
    degrees, decreased extension of 45 degrees. There Is essentially normal left hbwl fie,don arcj
    right lateral fiedon of 40 degrees on both sides. Left cervical rotation notes 60 degrees and
    right cervical rotation notes 50 dogma There Is a lefklded posItive Spwfing test. On the left
    side there Is tenderness aid pain over the shoulder posteriorly extending into the paracervical
•   muscles.
    Neurologic: Oeep tendon reflexas we bHsterally equal In the çper m&emlty and 2+. Strength
    Is steraliy equal and 515. There Is decreased sensation on the ukier aspect of the hand and
    there Is decreased sensation below the etow on the volar siflce of then
    IMPRESSION:
    1.   CervIcal sprain-resolved.
    2.   Left shoulder strain — resolved.
    3.   UnderlyIng cervical and shoulder Impairments that need to be further evaluated and are
         most likely hi my es*nation chronIc and preexisting, it should also be noted that there Is
         no evidence that the repetitive motion on the day of Injury ted to any aggravation of this
         underlying preexisting sat of conditions.




                                                                                                      56
    Tmnt8. GMki
    Page 3
1
    DEEaWINATION CF MA)QW.JU MEDICAL IMPROV9BIT (Hal. WAIRMOIT
    I am obtfl shoijier MRI and EMG and consult to fluly evakate this mcanthee.
    Prelimlnáyto 1* dii beWig obtained, my findings am ccmpatlNe with soft tissue atralim to the
    neck and 8hoder as woik misted with preexisting degeneralke conditions of the shoulder and
    neck cauêb fleee* remaining symptoms,
    An iisdt, the piled Is a MW with a 0% whole person biipalnneflt arrelated to the wo
    I4uzy. The die & MMI Wit be placed at 0412612011, the die of vIeR to Dr. WobkPs office,
    which noted no significant changes. This Is approximately WED mordhs from the e of
    and I. My ccmpetit,Ie with reach Don of such soft tissue sflka
    I di be obt*ffig en EMG and shoulder MRI and will provide an adde,#Im alter these n
    obtied, if they alfect my decision as to MLII and whole pemon hnpakmfl I dl so notify in
    the addaidian.

    AUDSWUWCONCWS1ONS ON W22Q12 FOR ADDITIONAL , t tWIG:
    As of 612812012 the examinee has been unable to schedule both EMG and MRI. He
    notified of an appoinflent on 8126112, but was unable to attend and has not rescheduled. As a
    result, since I can not obtain additional testing Within DWC time limitations, I will finalize my
    report with dedilone noted abova WI on 412612012 and 0% thipefrment That Is calctda
    ORE Category 1,0% for the neck. Them is a 0% ImpaIrment assessed for the left shoulder as
    the e of motion deficits would not qIy to a soft tissue fli this long after Injury, The left
    lame Hated on 0WC32 has M raxe of motion and is therefore 0%


    The options rendered In this case are the opinions of the euator. The ekjellon has been
    conducted on the basis of the medical examination and the docanttlon provided with the
    assumption that the maisdal Is true and cored. If more Information becomes available at a
    later date, an additional servkekeporlhoconsldemtion may be requested.
     Such Information may or may not change the opinions rendered In this evakwtion. This Opinion
                                                                                    opinion does not
     is based on a clinical assessment, examination and documentatIon. This             to be made or
     carte, par se a recommenda     tion for specific dahlia or administrative function


     Medicine Is both an art and a science, and although the examinee may appear to
                                                                                              be 1ff to
     parhoipate In various types of activities, them Is no guarantee  that  the IndivIdual will not be
     refrjwed or suffer addNonal Injury as a result of pwbcØl*ig in certain actMties.


        tz (%
     Andrew it Cole, M.D., M.PJL
     Board Certified, Oooupatlonel Medicine
     TX MD H1064
     Texas Ce#fiet Designated Doctor, lmp&rmei* AOL Level II
     AIC LBLMWm, Ot 06t2A112, V. 06126112. J 602683




                                                                                                          57
                                             aa
                                                                   I
            •   C   ta   C
          0_a       —    0
                             iijiti          I.       :1       I
a
I
                                             a..___
          -É
    I     -a
I        •-I1                Fi
                                      a Ca                 K
         F’]
          -Il                -J
                             —    z   • —
                                      a a
                                                                                         i.
                                      ób




          -a                                               K                         r
                                                                                     V
                                  <          ggs
        • ía.                         b•Ia                                   S               Up
                                                                       I    *111         n   -q   —

                                                                                 I           it
          -.
                             t        •00    00   0   0
                             *
                                                                       I?                              3
                                                                       II
                                                           30                                     ‘S
                                                                       p                               0

                                                                                                       0
      Eva Caamifl
      Partially biyalld on K Lateruj mexion only, and it Is noted patient bpmvcd with repeddcia Mild pacal deficits
                                                                                                                    In
      all pluwsormotloa.

      Amvleaa Medical AradMicn Ow die Evabafa of Pnwa hnpalmtii, PIMp EJtb,                          -.




                                                    C-i MEDICAICROUP
                                   4425W. AIRPOWF PWY S1N7! 2*) IRWNOTh 75062(9Th nO42
                                                                                                                         -




Dr TréntGflffia


                                                                                                                             59
          1€
    I
          If.
    •1
     II   I
     I
     V




0
C
     I

     II
     I             I
     I
      I
     I
     I
     I
     I    it   I
0,
-A
                Texas Deparbnent of Msumnce
                 Division of workers’ Compensation
                                                                                      RECEIVJJ
                                                                                                       ‘A là
                7551 Mao Cer 0dm 8W1a 100 AitS, T.xas 787441809
                (612)6044000(512) 6044001 tmx v.atatLua




         STATE OF TEXAS                                 §
                                                        §
         COUNTY OF TRAVIS                               §

                                       CERVflCAT1ON OF IN$TRUJIENT(S1
         The Commissioner of the Division of Workers’ CompensaSon, as the chief administrative
         executive officer and custodan of records of the DMslon of Wodcerw Ca.npensatn has delegated        and
         to the undersigned the authority to certthj the authenticity of document filed with or mafritalned
                                                                                                            byor
         within the CUMOdI& authority of the Chief Clerk of Proceedngs for Hearings of the DMslon
         Workers’ Compensation (DWC) of the Texas Department of Insumnce frOl).                                of

         Therefore, I hereby certify that the attached documents are true and correct copies
                                                                                                        of the
         documents described below. I further certify that the documents described below are flied with or
         maintained by or within the custodial authority of the Chief Clerk of Proceedings for Hastings of the
         Division of Workers’ Compensation of the Texas Depathnent of insurance.

                 Hearing Officer Decision on Docket Number 12-192699-01: Trent Griffin
                 v. American Zurich Insurance Company


         IN TESTIMONY WHEREOF, witness my hand and seal of office In Austin, Texas, on September17,
         2013.

                                                ROD BORDELON
                                                Convnlssloner of the Division of Workers’ Compensation


                                             BY:       tu-tliAwr                                                    ii
                                                                        S
                                                Tiffany Duarte
                                                Chief Clerk of Proceedings




RevsI 7fl1 I
                                                                                                               64
                                            0                                           tn
                           TEXAS DEPARTMZNT OF INSURANCE
                          DWISION OF WORKERS’ COMPKNSATION
               SI preflere baNe, con una persona do habis hispana acerca do esb
           $   correspond.ncla a do su reclamo, sirvase Ilamar al 1400-252-7031.

                                      January 29. 2013

   AMERICAN ZURICH INSIJ1ANCE Co                   DWCNo             12192699
   14o0 AMERICAN UI                                ,,        •,
   SCHAUMBURG. IL Loig6—iogi                                         1219269901CC
                                                   Ca..h1Ncz 522180763500010121
                                                   Employee:         ThENT 5. GRIFFIN
   dO FLAHIVE OGDEN & LATSON                               oyer      WALGREEN CO

                                                   Date of
                                                   IflJwT         February 21, 2012



   The Hearing Officer has machod a decision and entered an oithr hi the above referenced claim.
   CesothededslonandflotsheetamatedexplalnlflgWhattodoifyoUWanttoappeal
                                                                                            tNs
   Hearing officers decision or lithe other party appeals the decision.

   Please note that If the Carder has been ordered to pay benefits hi accordance with this decision,
   those benefits, unless othetwise note% Include both indemnity and medical benefits.

   It you have questions or require assistance, please call 14O0-252-7O1. To expedite the handing of
   requests for appeal and responses to requests for appeal, oil corresponde.ice should be ad&essed to
   th


                          CHIEF CLERK OF PROCEEDINGS, HEARINGS
                           TEXtS DEPARTMENT OF INSURANCE                              I)j44fti,...
                                                                                                 -


                          DIVISION OF WORKERS’ COMPENSATION                               0tb, 4&1
                                    POST OFFICE BOX 17787
                                   AUSTIN, TEXAS 78744-7767                                 “2<


                                                        Sincerely,
                     c€W’       0iw’
                        REF                             Texas Department of Insurance
                                       s




)RO3m-)
                                                                                            65
                                                                    c0NEu3ENTJAL
                                                                      Tda




                    TEXAS DEPARTMENT OF INSURANCE
                  DIVISION OF WORKERS’ COMPENSATION
                                                                                  ThUD
                                 DALLAS FIELD ovncz
                                   DALLAS,TEXAS

TRENT GRifFIN,                                *                              CH
              CLAIMANT

                                                              DOCKET NO.
                                                       DA4249269941-CC-DA47
                                              *
AMERICAN ZURICH INSURANCE
COMPANY,
         RRIER                               §

                                 DECISION AND ORDER
This case is decided pursuant to Chapter 410 of the Texas Wodcas’ Compensation Act and
Rules of the Division of Workers’ Compensation adopted thaeimder.

                                          ISSUES

A benefit review conference was held on November 29, 2012 to mediate resolution of the
disputed issues; however, the panics wac unable to reach an agreezneit A contested case
h ng wa       Id on January 24, 2013 to decide the following disputed issues:

       1.     Has the Claimant reached maximum medical imwovemcnt, and if
              so,onwhatdate7

       2.     If the Claimant has reached maximum medical imptoveirt, what
              is the hnpainnent rating?

       3.     Does the compensable injury of Febmary 21, 2012 extend to
              include a herniated disc at C6-7 and cervical udiañopathy?

For good cause issue 3 was mnaided to the following:

       3.     Does the compeimthlc injury of February 21, 2012 and to
              include a left paramedia disc pmflusion at C6-7 and cervical
              radiculopathyftadiculith?




                                              1

                                                                                          66
                                                                        CONFIDENTIAL
                                                                           1t,ode




                                      PARTIES PRESENT

Claimant appeared and was assisted by Valeda Rivers, ombudsman. Carrier appeared arid was
represented by Todd Richards, attorney.

                                     EVIDENCE PRESENTED

The fi,llowthg witnesses ftstifie&

       For Oaimc Claimant.

        For Cmtla None.

The frUowing abthits were admitted into evidence:

        Hearing Officer’s Exhibits HO-i and 110-2.

        clahnanfl BxhthiLi C-i through C-il.                                   -




        Cath&s Exhibits CR-A through CR-O.

                               BACKGROI2W INFORMATION

 Claimant sustained a compensable hjjtny to his neck and left shoulder on Fe&uay 21, 2012,
 when he readied under a cormta with his left arm. The parties supulnd the Division appointed
 Dr. Andrew Cole as designated doctor D) to determine mnimnm medical improvement
 (Mlvii) and impairment rating (W).Canier accepted as compensable cervical and left shoulder
 sinin/snins only. Cinimmif contended the compensable injury also extends to include a left
 paramedian disc protrusion at C6-7 and cervical rediculopathy/radicuilfis.

 Extent to include the conditions in dispute required proof through expert opinion evidence, based
 on reasonable medical prebthilily, with a suffident explansinn of the causal link between the
 compensable injury eva and the condidon. This was lacking. The compensable injury is
 cervical and left shoulder sprain/strains.

 There were two cerdficadoqm. Dr. Cole examined Claimant on lime 22,2012 arid certified MM!
 on April 26, 2012 with a 0% a Dr. Andrew Garrett, a doctor selected by the treating doctor
 acting in place of. the treating doctor, examined Claimant on August 24, 2012 and certified
 Claimmit had not readied MML

  Dr. Garrett rated cervical disc displacement and radiailiti&

  Dr. Cole rated the compensable injury, plus a left he strain, (this condition was on the DWC
  32). He assigned no impairment for left knee strain. He concluded the compensable neck and left



                                                   2

                                       -
                                                                                                67
                                                                        ECONPTDENTIAL
                                                                               7 LtxCadc




                                                                                  those April26,
shoulder injuries would have resolved two months after the date of h4wy, and he
2012 as the MMJ date because testing physic   ian Dr. Edwai d Wolsb   saw  Claima  nt on that date
                                                            fbund  some  impalu  nent of the neck
and noted no significant change in his condition. Dr. Cole
                                                                     ly chroni c and pre-ezi afing
and left shoulder on examination however he thought this was probab
                                                                                l       ce.
Dr. Cole’s certification is not óontary to the preponderance of the other medica eviden

Evat though all the evidence presented was not discussed, ft was considered. The Findings of
Fact and Conclusions of Law are based on all of the evidence presented.
                                        FINDINGS OF VACF

1.        The patties stipulated to the follOWing facts:

          A.      Venue is proper in the Dallas Field Office of the Texas Department of Insurance,
                  Division ofWo&era’ Compensation.

          B.      On February 21. 2012       Øaimant       was the employee of Waigreen Company,
                  Empl

          C       On Febniny 21,2012 Employer provided wetters’ compensation insurance with
                  American Zurich Insurance Company, Carrier.

          D.      On February 21,2012 Claimant sustained a compensable ugmy.

          E.      The Division appointed Dr. Andrew Cole as designated doctor to deterute
                  maximum medical improvement and impairment rating.

           F.      The compensable injury extends to include cervical and left shoulder
                   sprth&a

  2.       Carrier delivered to Claimant a single document staling the true corporate name of
           Carrier, and the name and street address of Carrier’s registered agent, which document
           was admitted ho evidence as Hearing Off lc&s Exhibk Number 2.

  3.       Dr. Cole certified Claimant reached maximum medical Improvement on April 26, 2012
           with a 0% impairment rating; this certification is not contrary to the preponderance of the
           other medical evidence.

     4.    The compensable injury event of February 21,2012 was not a producing cause of a left
           p&amedian disc protrusion at C6-7, cervical radiadopathy, r cervical radiaflitis and
           was not a prExiuchig e of any aibmcanria accelaakm a wrasening of any of those
           conditions.




                                                       3

                                                                                                     68
                                                                       CONFDENfl4j,
                                                                          a labac Code
                                                                           ê4S3



                                  coNaustoNs octtw
1.    The Texas Department of Insurance, Division of Workers’ Compensation, has
      jurisdiction to hear this cast.

2.    Venue is proper in the Dallas Field Office.

3,        Øsmma resdjed     maybnim medical imwovanent       mi   April 26, 2012 with a 0%
          in4innwRndn&

4.        The compensable injury of February 21, 2012 does not extend to include a left
          paramediai disc protrusion at C6-7, cervical radiafiopathy. or cervical radiculifis.

                                          DECISION

C1.immt waked ma imnn medical iqwowma on Apil 26. 2012 with a 0% impairment
rating. The compensable injury of February 21, 2012 does not extend to include a left
pammedin disc rothisimi at C6-7, cervical rathailopathy, or cervical radinilitis.

                                            ORDER

Carrjer  is ordered to pay bflts in aaordara with iris deciâa the Tens Workers’
Compensation Act and the Comnñssion&s Rules. Acaued but uqnid ixome benefits, if any,
shall be paid in a lump sum together with interest as provided by law.

The tue corporate name of the içsurance Carder is AMERICAN ZURICH INSURANCE
COMPANY, and the name and address of its registered agent fir service of process is

                            CORPORATION SERVICE COMPANY
                              Zn EAST 7th STREET, Surrx 620
                                  AUSTIN, TEXAS 78701

Signed this 2t day of Scary, 2013.




Thomas l
Hearing Officer




                                                4

                                                                                             69
          ThIS LETTER WAS ALSO SENT TO T)* FCLWWING
                                                    :
          WENT S GRIFFIN
          724 MEANDERING DR
          CEDAR HILL, TX 75104-6060




         THE SILVERA ARM
         TODD ffiCHARDS
         5001 SPRING VALLEY RD        n.’:,
         DALLAS. TX 752444948




         INFORMATiON COPIES WERE ALSO SENT T
         WALGREEN CO
         200 WILMOT RD
         DEERFIEW, IL 800154820



         OMBUDSMAN




DROS   9a- OS45)                              An Bpai Oppoamly a,çqqr
                                                                        41        ggg
                                                                             70
                                          CAUSE NO. DC-13-05693


WENrs.GWmN.                                         S             INmEoJsrRIacouaT
       Pblntiff
                                                            §     1O?IUDIQALDISrWCr
                                                            S
AMEWCAN WRJOI INSURANCE               §
COMPANY                                             §
       Defendant                                        §         DALLAS COUNTY, TEXAS

                          AWwAVff 0€ RJCHKI SE CASRAI1

STATE OF TEXAS                §
                              §
COUNTY OF DALLAS              §
       BEFORE ME, the undersigned authority, personally appeared RJCNELLE CABRAI..ES,

with, upon oath, deposed and state&

       My name is Richelle Cabrales. I am over twenty-one (21) yrs of age. I am of
       sound mind, and I am filly competent to make this affidavit I have personal
       knowledge of the facts contained in this affidavit and they are all true and correct

       I am employed by Sedgwick CMS as the workers’ compensation claims adjuster
       regarding Trent Griffin in connection with his compensable iijury on February 21,
       2012, while employed by Walgreens.

       Trent Griffin began receiving temporary income benefits on February 22, 2012 as a
       result of his compensable injury. Accordingly, his statutory maximum medical
       improvement date is February 26,2014.

       Further, afflant sayeth not.




                                                        RICIIRIE CABRALES


       SUB5CRWED-AND SWORN TO before me this                           day of__________ 2014.


                                                                NOTARY PUBLIC, State of Texas

                                                                                      PUO DC
4DAVET QaCABRS PAGE Sow               -


                                                                      ‘tt..’ ca!ois



                                                                My         commission          expires
tO/Z32012 09:57 PhI                                                                          lO02/G2B



                        MARTIN R. STEINER, M.D., F.AA.N.
                   DIPWMATE AMERICAN BOARD OF PSYCHiATRY AND NEUROLOGY
                          8303 &idll ewwaytIb 836 • Fbstan, tea 77074
                                        713-7714191 • Far 713-7714115


       OdoberiG, 2012

       Mr. Jeremyk twin
       dO The Silvers Finn
       6001 SprIng Valley Road, Suite 1015
       East Providence Towers
       DeIas TX 75244
       Fax& (972) 715-1759

      ‘Re: TRENT S. GRWFR(
             DWC* 12102699
             Date ofirgury: 2(2112012
  •          EmØoyer W&gmens
             Canler Amedomi Zurich h*innce Company
             GI&m# 30120223576



       I have reviewed the following records you have provided me regaidhig Trent Griffin.

      .1.     Employer’s first report of injwy.
       2.     lftkdcers’ Compenealion Injury questionnaire.
      3.      Walgmens Disability.
      4.      NotificatIon of hr             kjcomebnNpeyment-317I2012.
      5.      NotIce of theputed issues 5M201Z
                                       -

      6.      Notification of Ma*nxmi medical Improvement -612912012.
      7.      NOtifiCation of suspension of indemnity benefit payment
      8.      WoI+Med Pain Management 2(2312012 through 81241201 a
                                           -


      9.      Cedar Hill Imaging MRI of ceMcal spine 312912012.
                                -                         -

      10.     PhysIcal Performance Emm-2l24&012 through 5I291201Z
      Ii..    Pew revlew-Ph114 Osborne,        aa-wmoia
      12.     TraM S. Griffin’s response to peer revlewby Dr. Phflhlp Osborne 511412012.
                                                                             —


      13.     Peer revIew— 61612012.
      14.     Peer review— 61712012.
      15.     DD evaluation Mdswr t Cole, M.D. flit
                            -                         -

      16.     interpretation of neurodiagiioziic teat Edwin Green, M.D. -712012012.
                                                  -




      NATURE OF INCIDENT: On 2(2112012, TraM Griffin was pertrnfl It duties as a phamacM
      wtwn he noticed a ‘poW in wtk3h he the’ humedatety grabbed Na lee slimMer, At thattime,
      he did not think anythIng of ft end continued working. He had to rh down below the counter
      again and this time the pain was wome. This time he had to ab for Me ei&e left erm. He
      mpodedtha he was unable to tat fl heed to the left or right becetse the ji would become
      unbearabb


                                                                                                        LI
10/23/2012 09±57 FAX                             -
                                                                                         OO3/O28


    Pa: WENT S. QRIFPIN
    October19, 2012
    Page #2

    He was seen bY his PCP. Dr. Paid, ‘Mio prsecrthed nbtm4s
    Dr. P8W thfl tPflIY mimd l*ii to a wock anj phisldn
                                                                    I’-p     api pain mffevn

   Consequently, on 212312012, It Griffin a seen at a VWiltMed Pak Insgern
                                                                           ent Chit He
   a evahwted by K D. Holder. D.C. end dlegnoeed with a cavlc& mdctAb as well
   and stain of the                                                           as a sprafri
                   left elnthjor. Physical thempy wee prescribed.
   aaseusndy, It Griffin has been naiad at the WoH-Med Pain Maiagement Cihilo
   212312012 thraigh 812412012 wIthout a-iy slanilicat Unpmwmet               from

    An M scan of the cervical spine performed on 3f2912012 a interpreted as showing
    paremeikn 5 nn disc pmthmlon at C6-C7 that was noted to be compressing the veifl a left
  • mete a no mettn of any nerve tuot compression.                                   coid.
                                                         -




   An MRI scan of the left shoulder was completed on 612&2012 and demonebad attenuation
   the distel spaspinaus tendon. No ten were I dUld. A aid sii,detld bLñlth a noted     of
   to be present No labial tears we noted.
  Vatous physical peitnuance eximinatiom ware performed on a mcnfliy basis tom 2(2472012
  ftcii 4MtWIZ A ftmctional cepacily evaluation was performed on 5f2WZi2. Dw9
  ttr eseluaffons, them a no dIñIcaI hnpcovsmeat noted.                            those

  On 5P212012, (It Philip Osborne performed a peer iovlew mid detennined that the extent of
  flkywntha&aca6cd a4st4ithrsb

  -Two additional peer reviews ware performed to determine wtather psychological testing was
   metaii3 necessary for this Uijwy. 8* peer reviewers delemilned that a flee-hour
   psychological testing battery was not medically necessy

  On 612212012, Trait GdMn a evaluated by Dr. Mdiw 7. Cola Dr. Cole determined that
  It GrIIM had readied rriadnuim medical Improvement as of 4fl612012 with a 0% whole
  person impairment
 An elecuodJagnoatic study a performed on 712012012 and kwprdad by Edwin Gasp, M.D.
  Dr. Gean btflbUd that ifs kik.n(a$on a based on his indepsncbt m*Aow a4 iarpceton
  & data provided by th. testing company. Based on the findings & 2* fbdllelions end It
 positive slwp waves WI tie left triceps muscle as well as 1+ posftlveshaw waves in the left
 •Lkva muscle, 1+ tbllMIons aid 1+ positive sharp waves in The left prc’tcr fl muscle and
 2* tifllafions aid 1+ poslthe diap waves in the left CS pnspbid naisdes as wall as 1+
 Ibhlations and It positive iwp waves In the left C6 parasphal musculabn, Dr. Grew
 conthided that ils evidence indicated a mild early left-aided mid cervical (C&C8) mdlcubpethy.
 1k seen fl’ijy sueSd *Uc& cflation *4th a centel MM *ids




                                                                                                  85
                                                                                          OU4/D28
10/23/IOU 05:58 PAZ


    ne mar a GRWRN
    Ober 1% 2012
    Page#3

    Besed an my mvl of the above data. I have died Uwt*ig opkibna
          trerd Giti at most welshed only a venice) and l shoulder skein saidary to his
          bending down on two occasions aid tznffig Na heed to the left on 212112012.
    2     Pwasplnal muscle snins we the type of injuries that would be ccpeded to resolve
          spanWneouMy in #6 neka Consequently, aiy teabnerd beyond ek weeks should be
          considered lmmasonable and unnecessary. (Re4renca Official Disability GddeIInea
          MD Guidelines).
    a      This opinion is supported by the fact that the cervical MRI study performed on Trent
           Griffin cii 312012012 demonstrated only a 5 mm left paramedlen disc protrusion which
           was not shawii to be compressing a cervical nerve root at the CO-CT level. Compression
           of the venbal eØnal cord, if ft were siwflflcsnt would produce signs aid symptoms of a
         • cervical myslopathy. Them is no medical evidence that Trent Gdffin was suffering from a
           cervical myelopathy (pressure on the cervical eØiial cord) at C6-C7 leveL Them was no
           medical evidence Ut he lied lower a’&i.sê mo wee1m.sa hyperacthe reflaces,
           positive Bthhski signs or presence of a sensory level. Likewise1 the Mffi scan oft. left
           shoulder           ldj aiy objethim thnonnafity that could be eseodated with his
           bending tiwad and tuning Na head to the left Activities such as described by Mr.
           Griffin would not came miy damage or harm to the physical sthin of tie left shoulder.
    4.    in regards to the interpratlon of the netrodiagnostic study peilonnod on Titnt GdI&i on
          712012012. them am a maiiber of Issues that need to be addressed.
          A The Official DIsabiRly Guidelines Indicates that elecntdlawios& studies should be
            performed using pmtocofa established by the American Association of
            Elecbndlegnostlc Medicine, American Academy of Neflogy and the American
            Academy of Physical Medidne & Rehabilitation. These ddaIffies thdlcate that
            eledromyography (neede examination) must be perfonned by a physician especially
            trained in elecbndlagnoallo medicine as the tests are simultaneously performed and
            Intezprelsd. That physician should be at the bedside if not physically performing the
            test himselt In this cese, Dr. Edwin Omen specifically stated that his report was
            based on an Independent review and an Interpretation of data provided by the testing
            company. Clearly, he was not in close physical prwimlty with Mr. Griffin at the time
             the study was being performed. Consequently, th interpretation VicISS the
             expected standard of owe in providing lnterpietatlons of &ectmdlagnoatic studlea
             The opinion has been substantiated by the Texas Medical Board which has
             reprimanded a leest one PIWSIdIn and Imposed en aknhsflhive pawity for
             parfonnung eledm4fleØioiflc interpretations and not being ØiØcaRy pmeenta the
             thie the study   being canted out (Sea Proler betre the Texas Medical Bawd)
                            .._




          B. Even If the eletho iostIc study was performed conec*ly, the results Interpreted by
             Dr. Ethvki Green do not coimlate with the clinical ecenerlo. Ct seen stated that the
             stay showed evidence of a mild early left-sided mid oendcal (CS-CU) raltulopathy.
             The study was patluhld an 712012012. The k4wy stnly occwied five months
             earlier on 212 112012. TherefOre, W kideed Uwe ta evidence of en early
             WIáal nid oeMc mmaiopelhy, ft would fl be .flnrAd with si leciderl that
             occuned five months a.


                                                                                                      86
10/23/2012 00:SR RU                                                                                 O05/O28


              Ha WENT & GR1                                                      -


              Octcbr19, 2012
              Page #4

                           Fwtheanoro Dr. Green’s b*rpmlauon s that & a riopethy at CS-CB. The
                           Iwel dose not con’etete with the M study pvIIed on Tbwt Ccml’ ai W91Z12.
          •               A. noted previously, Dr. meen akungly suggested conelaflon with the cervical %I
                          study. hi this case, howet the cervical MW study ttmd the abnv ma&y to be at
                          CS-CT. Coneienlly, ma Is no correkifon between Dr. Goen’s level of C5-C6 and
                          the MW study indicathig the C6-07 level of Initivema
                          Additlonally, there was n& evidence of nerve root compme&cn or knpkigement a.
                          dher the C5-C6 level or the C6-07 la’& 11*1 vmuld lead to doneivalon potentials as
                          des&bedbyDr.Gresa                                  -




              5.       In summary, them Is no medicel evidence contained In the records reviewed that Trent
                       Griffin sustakied any damage or hr to the physiosi athicftn of Ne body seconden) b
                       the Incident In question. There le no *icW cnlaton between TraM OrI*Ys sibjective
                       synwtoms and objective abnomialfiea There was no evidence & any ftcal motor
      •                v.ieaImees reflex lose or sensory loss when Initially ecsmkied on 2a3t2012. There was
                       no evldnce of any otqedive nerve root compression on It Gdfb’s cervIcal MW study
                       of 3(2912012 and lastly there wes no evidence of any dethlcal abnumafides at the
                       CS-C? spinal root level.
          6.       -   I would canvas with the designated doctor, Dr. Andrew Cole, that It Griffin h sO%
                       whole person impairment and cerlâ4 had achiaved UMI by 4flW2Oi a
     I certify that I hold the appropriate credentials to conduct this revIew I received my medical
     degree from the University of Ekt* Co$e9e of Medicine hi 1967 end spent one Year as a
     medical Intern at Ben Taub General Hospital from 1967 to 1968. I then spent flee yen es. a
     neurology resident at Motmt Sinai HospiW In New York City. Following cornpisUon of my
     specialty Usirting In Neurology, I spent two years as a staff neurologist with United States Air
   • En aid then beginning In 19731 have been hi prWfl practice Wi the specialty & Neurology in
     Houston, Tacas to the present time. I have bean performing peer-ievIvs elite spprwdmately
     1994 supported by evidence-based medicIne. I hold en active and unresUtled Texsa license
     (E0154) and I he experience with wodce’s compensation claims In the s of Texas. I am
     board certified hi the specialty & neurology by the American Board of Psydiay & Newology. I
     am qualified ass designated doctor and hare maintained my framing In use &the 4’e&uon of
    the AMA gtkee to the evelastion of penialent lmpafrment through courses certified by the
     Te Veparbiiafl of knn I certify that I hold the appropriate vredeiUets as defined by
    28TN15O.1 to pw&4m eNs peer mvlw. I have no conflicts of bared hi performing this

      11 above opinions are based on the information that has been provided. Should any additional
  *       htnnatJan become aallable, I reserve the right to revise my opinions accordkay.
          I heim besed my opflons on reasonable medical pmbdHfty.
      Ifl.ibeofa’iyftflwsavlcnbyou. p--&dordIaebcaL


      Merun ft Steiner; MD.
                              0104



                                                                                                               87
                         RICHARØ         A Suss, MD., PA.
                        5938 besco Driv Dallas,fl 75225—1603
                         DIASIOSflC AWGY MW    wawoaja.o(cay ceuimia.

                                                                               Tel (214) 363-5690
                                                                               En (214) 363-7940

                                       Noynha 26.2012



Jeremy A. Lunn.                                     Re: Trent Gdffln W46 D.oS. IflS/66
The SUvera Firm                                     DWC # 12192699         DIE.: 2012-Feb-21
1015 Providence Towers East                         Employer: Walgrcrsis
5001 Spring Valley Road                             CanioriAmerlcá Zurich Ins Co
Dallas, TX 75244                                    Claim No. 30120223576

DearMr,Lunw

       At your request I have reviewed imaging of Mr. Gdffia

                  Cervical Spine MRI, 20124ar-29, Cedar Hill bnaglng

Images: A CD-ROM displays sagittal TI- and 12- and axial Ti- and W-weigbted scquenca

Flndiags At C&7 there is a 3 mm left paramedian disc promisioi that makes bordaline contact
with and minimally ifat Ml deforms the spinal cord, which retains norma] signal while the midline
dma) diameter remains vy ample at 12mm and there is no neural haminal encroachment Also
noted at C6-7 is mild amerior spurrlng The disc rains normal height; and the cervical discs
generally show nonspecWc signal loss. The cet joints and the other tents are otherwise
unremarkable.

Conclusion: C6-? disc protrusion with borderline cord impingement but no compression or
significant stenosis. This pmfrusimi and the associated anterior spunlng.are entirely compatible
with, and typical of1 chronic degenerative disc disease. There is no MRI evidence of acute or
traumatic pathology or aggravation or of anything that can be Etnlmted in reasonable medical
probability to events on a particular date such as Pebns&y 21,2012.

                  Left Shoulder MRI, 2012-Jun-26, Cedar Hill Imaging

Imagosi A CD-ROM displays axial fl-we4ghted, oblique saglual PD-weighted, and oblique
comesi STIR and PD- and V-weighted sequences.

                                            Pagel




                                                                                                               19
                                                                                                    L”
                                                                                                         \I1
                                                    -


                                                        -             Sr 7km Grjftln, Page 2


Findings: The roWwr cuff and othm regñial tendons thd flgamails re unra,wtab1e The
tegional bony contours and marrowsignal at ni. The glenoid laum is umesxaicthIe That
is no appreciable synovial or bmsal effissIi.

Conchislon: Normal left shou]d& MRL The origiñaliy reported sulecfive and meaningless
assessment of “Supnspinatus distal tendon attenualioC is not confirmed, nor is any evidence of
“bursitis” confirmed.

                                                   Sincatly yours,

                                              1W   cc/wa         a.
                                                   Richard A. Suss, MD.




                                                                                                 114
                                B)GWICC mS                                    PACE 3    0? 12
05/0712012 71BO1 AM




                    EflDEVLERISED JffDJG1NEEVM&4WRS
                                          1iflip0afl



         May      2012

                                                                                            L;,,•




         MwR friaR                                     PEER REVIEW
         Med Ccflm
         2001 Bryan Sied, SIn 1975
         Dallas,Th 75201              -




         Rm      CWmwit TIWtGIflI
                 5574:   -XX40fl
                 CIalm#  301202235760001                                  -




                 DCL     2-21-12
                 mnploya Wfleans Dnzgslnn

         Doer Madc hMk

         You asked meb do a pee ieeiew on the above nwned dWmanttn ad&
         several quEdons posed in yaw over idler.

         DCRIPflON OF ThJIJRY:

         Per The Erpky&s R, Report of mjun the dalmant reported a woik bi)sy on
         2-21-12 wMe etiplayed t Wqreens. On this date, the daimart alIegJy yes
         v11ytng a piat)on wbi he aggav his idt shoulder, iSng pWn.

         MEDICAL RICORDS AVAILABLE FOR REVI!W:

           • 2-23-12 P. D. Holder-, DC, office vtstt

              • 2-23-12 X- of the cervical spine patmed Dy Ed Woiski, MD.

              • 2-23-12 X-rays of Vie ia odder lnteprei by Ed WoWU, MD.

              • 2-24-12 PhysIcal Performance Than.

              • PhyMcal therapy on 2-21-12, 2-25-12, 2-27-12, 2-29-12, 3-2-22, 3-5-iL




        SflEEU



                                                                                                    125
                                                                                       PAGE 4       O    12
051,O71Z012   7:ie:O4AH               SED1IDC OHS




                •        flR.DHalder,DC,offlcevlst

                • 3-13-1204P,LP,(IçØamlt
                                                                             .2, 3-26-12,
                • Phvfl thempy on 3-14-12, 3-16-12, 3-19-12, 3-21-12, 3-23-1
                  3-28-th

                • 3-27-12 It 1). Holder, DC., ornct vist
                • 3-29-12 MRZ of tie vlcai spine kltavreted by Jams PIl DO.
                                                                         .
                 • Fhyca1 thempyai 3-30-12,4-2-2,44-12,46-12,49-12,411-2
                 • #26-11 Ed Woisld, MD., I*/C-73.

              SUMMARY OF RECCRD&
                                                                                            ‘dio
              2-23-12 R. D. Holder, DC, the dalmait Mr Griffin Is a 46 year-dd p&It               er
                                                            Irjured his nect  and   left should
              w in)ired at wak on 2I21f The pstlt
              diKe petunfng its rumal work dutis. The paUit went          to Dr  Pet%     his P0.
              The physidan pribed miale rd and pain relieves and relaTed him to a
              Watt Comp pbysTdsi. Casauon The patut is a ptwtn lbrWalgrnn’s.
              Hestffesthatwhflehewasatwc,khe thlsrwdcsldewaystotheleltslde
              and ried underreath tie cunter with his left hand to pull wnt vls out that
              he nded. He immedinly Mt a sharp pain In his nedc that radlatM mit throt4i
               hisleftshouideranddownhilsleftarm Into hlshand.The pat1eithed1d
              not prev!aLsly have this tpe & pain. Zn all medt probeblity the patent lrØcnd
               his neck and shoulder at wait On exam, Nede Deaeesed range of motion of
              the cervical spina NyofW bigger point fi&iie bi this atee. Spsm of
              cervical paravertelnl mwdes on the left. Ththemlties: Decreased range of
               motion wIii tenden of his Iel’t shoulder. Hawkins and NeWs sign w
               negative. Neurologkal: Normal reflexes In the upper and lower øflmlUes
                                                                                                     y
               Cranial nerves were urn Spwilng’swas positive on the kit MaWr and sensor
               was Intact Diagnosis: Cervical r?dlwlRls,  spraki and nain    or left should   er.
               Plan; Presulbed physical meddne W decrease pain aid Increase range of
               motion. Mi4sed to amtnue medkadon given by his Pa’. Follow-up In to                   l
               wed’s. PreauthorlacirRequst; The patient has been diagnosed with cervica
               radliwilils. The patient ønakis of pain that redlates into  the  ldt  side  &  his
                                                                                               a
               nedc down through his arm his hand. The patient describes the pain as
               shooting, stabbing pain. He compbbis & hlsthW, founh and flit dlgt his      of
               hand lNhng asieqi. He has deceased rwge of motion of Vie wvl na
               Postive Spwlhig’s bM* Motor and sensory Is Intath Physical medicine 3(
               wedc4 w is medk2ky n.y to deanse pain aid inaeee iange of


               Pa2


              Eflj2IIZ



                                                                                                              126
051.0712012 7:18:04 AK           SEDUWIOK ONE                              PAGE 5    0! U




          motlan to slow him to mahitakn his MI-duty sttis. Therapeutic ah%
          therapeutic athvtUes hi addition wrk reirtegraton and wslcal perftnnan
          tbng at the modalR] nt’ —.‘ay t achieve tha goals. DWC-73 The
          clekuart was tai off wiiktNnfli 3-&U.

          2-23-12 X-rays & the rMcai spine petrrned by Ed d, MD., vs
          unnalcabia

          2-2342 X-rsys & the l& totit h1nd1 by Ed Woiski, MD., was
          unrw,iatbie.

          2-2+12 fliØcd Pesfmiuiz ban tiowed the claimant Is ftmdlaning beicm
          sedeit&y. His job reQuires MIIum PDL

          Physkzl thery on 2-2#fl 2-25-12, 2-27-12, 2-3-12, 3-2-12, 3-5-12.

          3-9-12 Phycal Performance ban shows U-is cb)iiant is lijnthcnlng below
          dWRCbflY) flght His Job requkes Meilin POL

         3-13-12 It D HaIder DC, the dalmant complains & severe left stlouldalam
         pain. His medications include FIcr11, IbuprotHi and TrMnadol. The delmant
         was conflnu with therapy. The dalmart was IcIaIcLl ftrai MRI&the rvlcaI
         spine. The clalmart — conthued & vmqt through #1412,

         3-13-12 at, LP, cBç piattia

         PhysicS therapy on 3-1412,3-16-12,3-19-12,3-21-12,3-23-12,3-26-12,3-28-
         12.

         3-27-12 It D. HW, DC, die dflait ccmpfl & nit neck awl lelt tuWe
         pain. Dlagnls: CaMI radlaJib, left 511nuder sarah. me dainant is
         continued &wcikthmu&1     427-121




         3-29-12 Mifi of the rice! sp1rie tittqnctal by 3am P11cc, 00, tows:
         C2-3: Thee is dl bulging without mass el’frct
         0-4: That is no disc disease idtfled,Thae is no nerve roct ci card
         hiptigcrut 01-5: Them is rn chs dbrnsc identified. That Is no nae tact ci
         cart Tmplnganait C5-6: There ts no disc disease idwuffed. Thee is no newe
              ci d hiiptgemwit C6-7: There isa left paramedlan discS nyu pmtusion
         mfldy wnpees the ventral coit
         Iiiycxkm: Left paramedlan disc ptbwlan at C6-O. This may aafl for the
•        syntmw & the left upper edienity pathes.

         PIIY*3 thawy on 3-30-12,42-12,4+12,4+12,44-12, +11-IL

         Tan ctffin



                                                  nunfloon




                                                                                            127
0510V2012 7:lBtOl AN            SEDQWICC   0MB                            PAflE B       01 12




         4-26-11 &i Wdsld, MD., DWC-73 The dalniait w r1Jm& In woik with
         rlctoris Uimu 5-26-li                                            -




         TREATMENT DATA ON ThBITGRIFEN

         DIAGNoSna                 FINDINGS
         3-29-12MM of the          shows a left paremediat dhc potim at       a
         cen4cal spine             C. This mayaaount liii The symiAain of the
                                   idt upper øthemlty pareia.



         TREATMENT                S OF         OOG
                                  VITS         RecarneDATwwS
         PIwskI the               19           10

         QUEflOWS W ADORES

         QUUON#i:

         Bad upon the avaibtb medal hbtay, wist aiwies                 bathe
         wctsMofhgury?

         The EmplayWs First Rcit of TnJfly tdR2 that on 2-21-12, the dalmart
         alegedly was veifying a nzul1Alon when he aggavatl his It *dder,
         caushig pain.

         Dr. Holde saw the dalnart cc 2-23-12 mat whie he was at worK he bent his
         neck sldewas to the left de wtd rdied widm,e* the cusia wElt his tail
         hand to ptAl me vlfl cit that he needed. He humedlaWy fat a tarp pat t
         his nk that radiated cut thiugh his Idt stxxMe aid down his left 3m Rith his
         h3t& The pabeit A4es he did nct rrwtIv have this twe of pat

         It wotid appew that the dairnarit had a cvlI and slioulde stahl. The frI
         does sltw disc i1ge at C6-C7 butt do nct cau fomminal              ThIS is
         not an tstanmon m,dlng In patfl without badc or nedc pain.

         The4th eduon of The GuIdes page 99 nos what Is called osteoailtrts cite
         spbe due rno.e In kiaemads ci age than to bijwy or illness.”

         Current Iltflure &iows that when comparing ciIsgraphy, nography, C,
         MM and sWdi wElt each other, that is 1561% of asymptcinfl Ae wRt
         ahnotmalla Notable studI tithe kmta fle fri asymçmnatt kldvlthJs
         TraGñffia



        sfljtOaz                                                                         E2201905011011b2




                                                                                                     128
O5/O7/2O12 7:1flO1 AN             SEDOVICK ONE                                PC 7          OF 12




          Thdude Bodai et at 1990, ssi at al 1994, Wdnrth at al 1969, Paflnen at al
          1989, W&sd al 1984, aid Qadnlic at al 1998.

              •     Lumbar Disc HatiaUcns McRae Paftimed a’ stides m pes
                    how8efie &bkpaki prtrt death. Hefttmda 33% prevalenceof
                    postezior disc flislaa

              • WIeSeI found that the lumbar spine In as)cnçtaUc lndvWuals
                demonstrated thiamaifties on MR images In 35%. He Found herniated
                discs In 19.5% of the people under the age of 40 aixi givater than 27% In
                the ovw 40 eis of age. He sb,dT only the 1.45 and 15-SI disc.
                Weinrab, in as mptmmlcftmaies found 54% wiTh bu or hanIaUa
                atoxiecr mcn disc ,aces,

              • hinter Disc BulgnfProbtMaim Most authors report abnonnaWesas
                a prevalence lnaeashig with age. Bodeii Iwid &ilghg Ii 34% of the 20
                ft 39 year range and 50% In the 4059 a9e 9rOts.                  -;it
                ftrduntres, 3 ft 39 yrs & age, aid 36% for whjeds ddez’Uian 60
              ‘yen

              • 3adnlk also found a rdatonshlp to age. Total prevala’ce of btdgkig disc.
                was 81%. 33% had at least one disc proknson. The fraueiicy of
                prothislon Inns as a fisnWon of age 16% &voftmttes age! 30
                years or curgu and 80% of the 4Lrteers older than 60 years had disc
                pr&nskjns

              • About one thht (36%) or asymç*omatlc ut4ecm over the age of 20 years
                have a normal disc at evety Ievd. 38% have an aironnality in morn than
                one disc levi. The prevalence of bd9 and pr*usions was higher at the
                L45 and 1.5-Si an tJpt, 80%. 67%&thc people 50 yearn orddez
                had muluple.

              • Eplden*Iogy of Low Sick Paki: Compounding this pittlem of
                wmmon abnonTefflJ In a’mpftrnatc people is the cvaaN Mddwre of
                low back pain In the genaai pqIiaUon. The annual inddwice of ilMlme
                prwaiai or lifeline Incidence of low bath pain varied from 1% to 5%
                3.7% qniaicni kin bath pain for bvo weda or moit duratIon, 1.5%
                with low bath pain ecpeiaid saauca. Of tho with sctauca, aver 90%
                had rplate rewveiy by 2 weda to 30 days with ranservauve,
                nonoperativeflatnezit Dayn. R.A.. Thi1-i. Y. 3.: Den.lAlge
                EvkiernioloqvdLcww Bath Pain aid Us Pr4*M Ptdzl Ca In the IMitad
                        Sply 1> 264, 1997. Fjnnojer. )ohn W., at. a)., Aii QyaMav &
                the )lddence  arC Crfl of Low Bath ‘sin7 QUkAedic CWilZ North
                Mi&a WA. 4 ra 2,. ApI 1991.

          Taaia



         5/7/2011



                                                                                                    129
051,0712012 71804 AK           SEDOWICK OHS                               PAGE 8        OF 12




            • Sadie aid Vldenw have ioiird from the Tdeil Thin Sudy
              years, dsc degwaauan is predmilmntiy rdated In gaidica Sbt aid
              leading of the kntar spine hw some protective prçat.
            • D!s ptthision, disc hatilaton aid disc bulge we &te tund In the
              asymptomatic population. That is vy lithe relationship btei dinkal
              symptoms and radidogicai signs of degeneration.

            • The evaIence of bulging disk and focal disk probvslons was 73% (22
               volunteers) and 50% (15 volunteers), respecbvely, There was one
               fruslon (3%). deven volunteers had annular tears at one or more levels
               (37%) and 94% of the annu)ar tears aihanced ai contast injection.
               Asymtniat!c mechilary wmprs1on was (biind ii fWr patIent (13%).
               CONCLUSION; Annular teas aid focal dl5k prumw are frequa*ly
               ft&md on MR inadng at the cavtal sphe, with or wftfiout uinbt
               athancarient, hi z ni,Exnt popubton. Em CW, Salt 1W, Peas
             • E, Sseucq C, w M3. Bevalice of annular tears aiid disc hemlaUons
               a, MR tnap of the Invk2l ne In symtn free idirs. Br 3.
               RadIal. 2005 Sq;55(3):409-14. Epub 2005 Jan 1.

            • Abnormal maan4lclaiiance sans of the c#ftal ne Ii cnmatc
              aablecls. A orts1ed lrwffoaton. Bode 50, Mccowin PR, Davis DO,
              Dm13, Mark % WI& Si Bone Joint Ssg Mn. 1990 Sep;flm):U76-
              84.

            • Deaiemtive d&iths & the knta aid caviol szlne. Rob Z Taig Al.,
              Yea 31), DavIs], Furw C, Boitnan [II. Ottop Gin NoUi Am. 2005
              Jul;36(3);255- 62. Revly.

         In Cr. Hoiders daipUon, mo and ory ecsn S nriaL His OW se
         rannal. Thereftie, I would daIfy this as a sbaln.
         QUniaM#2

         Dned upon the available medlc$ history, what harm or damage
         appems to have been done to The dMmant’2 physlal ithictn as a
         direct mmdt of the alleged event?

         Based wan the data pmvlded, the dlmant had a ft Uswe In wUi me
         noneifile rawlar complaint



         Ps#6




                                                                                                lab
                                  3GWUZ GUS                             PAOE 9      OF 12
05t0712012 7:1BOt AN                                               -




         Based on yaw uM.stntig & the waft and yaw opinion NnIfl9
         raithig ktjwy, wl ndd be fl anUc*a 1..1S.3 dgn?
         mdieguoacoda
         As per above, a ce*zl sflh (847.0) and §iauide- tam (81OS)

          in your review of the meWcal hlstoiy, do you nob any bicomhtency
          regarig stunt etfl or diagnoS of caWc& nøcuI?
          RadIailiW Implies hflemniaton of te neve, This       to be a myofald
          straki with non vedhlthie radiwiar complaint

          QtJnnO Nt

          Based on The MDA Guiddinse for the b4uryQs) yrna ttws —
          ceased by ti aleged await 1,l*t would be the dflalal paled of
          recovey attotdlng to UI. iat qipmpdato job danlflffow and what
          b the maxkmjm pected peeled & We,INty?
          Pa- airraittethnet guidelines, flalns are usaKysdf Ifmftfng end rekt
          within the flr+6 weeks po& Injury.

             • ra1njbtln lrØurfs are noted to rsoNc in the v maflty & cases
               (85% of the time) within sbc weela S’IIt, 1995, Sdaitflc Monograph
               of Qud Tes4or W.O. 5pfar, a&.

          QUiiOfl#S:                                       -




          Zn your opinion b the dtaM thle to ream to waR with cc iUimit
          rnors?

          The dalmant has agatntfr be rthimslto work with resbictons.

          Pe MDA Cavical *&nqafra
          Length of mablifty
           &p&ffn flats, crkI     —   s1rth zh
                           DUR*TflWDAYS
            lab flt..finnfn. )djiimin Opb’ Mnmn
                              1        1        7
            tig.              1        7        14




         Sn—



                                                                                            131
                                 SEUGWZQC ONE                             PAflE 10       OF 12
O5(07/2O12 7:18:04 AN




                             3                             -




           Effivy            3        35        56
           Vayiy             3        42        70




          QUSflON St
                                                               ‘a tntnent
          sand on year ophilon cii the —hatt of Injwy, what MU      sIb 006
          m.dlc&ly reasonable aid rWtnd  hi HØtt  at the ODE? Nease
          hnycvrreepoiua
           Please see below COG remmendat1ofls for teetnefit

           Pa 0002012 regfliu low bath psin:

           • firstvtst(dayl):
             o Presate deceased aI±vttv. If necessay, based on sevalty aid dlffla*y
                 &jth; limited passive Therapy wRh heatffce (34 tmewday),
                 tetdiIng/est (training by physical thaipI 010, pitpdate
                 a1a (he., aamlnophi) andftjr aiti-bifianmatay (I.e., thuirofi)
                 bat to work ecet ftr severe          in 72 hoot, pot1y rmdfled dilv:
                        bed rest
              o NoX-Rays unless slcj,mwtfrawta (e.g., a fall)
              o It mun spasms, Then coider mizde releelt with linRed sedative side
                 effects. (Note: The puipose &njsde reffixant t ftclltte tn to
                 activity, but nuscle relaxants have n& been shown to be more elTedive
                 Thai NSAID.)
              o REASSfl PA11U(F: Patait cduIcn wnmm problem (90% &
                                                      -



                 patlat re’zv& spwtdnecusty Wi 4 veels)

           • Second vist (day 7- abo* 1 wedc aI frst vWt)
              o Docimait progr (fiextifity, a of tzndernas, m m4Ii,
                a1ght leg raise—siting esupine)
              o If l 50% daUed thai widff rerr& for etltuWonManjal
                tha4ly. OpUom ae ohyczI therflt chkwractx. ii.c thetwbt
            •   or zfl1onal ffst (3 vIsits Wi ffrst wedQ, or by      aq D(’MD.
                (Choose provides supporting cUve therapy and not ju& paIve
                modaliles.) Ccsislder sotailng for       ØtyplptE In tes wNii
                expectations &dela)td recowiy.
              o Dl5DitIiue nKsde reat
            - C Reassure, but If tutJ nt.ntness or wem & eNtier leg, g bath
                   provider In one day


            Ta mn



           efl/2M2                                   3O22flM6O



                                                                                                 132
                                   5EOWIQC CIC                                 PAnE 11          OF 12
0510712012 7:j80I AM




             o Cons1r ,eiil ft noea4cal Tmnjcdcd physida’
               (OtthcpuiiEfi’hyáS Maifxrts Med)

                            14- about
             Third visit (day            1 week aRe saxnd vist)
             o      Dowmat ptgs
             o Presote muetndR1onNig çtses
             o At Ut potit 66%-75% fluid be badc to regular i,alc
             o WhIle n& Indated hi The aDsen of red flags, If l dab4 ff’rii
               conder lmagwç txtv (AP/Lflral 2Mew X-Ray of kinta) ft riM m.t
               tsnor, fracbn o&zoporosls, myciopethy [109 72L3, fl14 fl4SZ]
             o CuiUruie that p1st, diaige haii passive ft active rtoddlty, 2 vist hi next
               wee, ch hone
             a Bdmnuyat4weeksQvisltInI8Wed()
          • Foi.rthvlsz(day2lft2B-aboutl-Zwceksaftertllr4vls*)
            o Documei% W no Imptvnatthei:
            0 Fh £481 (about 3% of fttal cases, or 30% of ndlaiar     ) ft ccnfirm
               ethuded disk will nave ut dlwdaceneit (>= 1 m&th    cersvative
               thtpy)
            o (MR! or cr not 1ickatal without obvoLz dWilI Ievd or nave tort
•              dysftnctan, cl rxllaiar findings, or before 34 we&)

              Per ODG 2012 ,egeidhig frc.hiait for ultedda bijiala
              • InitIal evaluation should Include:                                     -




                          o DeIne the type of bauma (died trauma, IN!, rep1tw
                              rirnilan, twttig tddat, a.).
                          o T tie arige-of.motal of tie Jo%it (nonn4 mild r1Wo-
                              seve i’etttn, or wmpIe r1dlon),
                          o Ni mt w*iatlcai &the shoulde ruuk ao.nte dIagrns
                              &thoulda- flid byaeftd bispedlon aid p*etal &the
                              stiouta area. Nthouyh the slalder Is geneally swollen, the
                              Injuty 1s usually defined by direct taidemess over the IFthJrCd
                              area
              If riot slgilflcanuy Impuved then prescribe ohwhI U -a,v (venUe raige-d
              motIon ees jt.s cetises that strengthen the rdBtus and stabilize the
              scajxjb) should be arttdfor home erclse t-alnlnu.

                    o Rxtie rdaxatlon and pain coat-al can be adileved by krjathg an
                       anesthdlc titer the acmmlai (laaraily or antalody) With the shrndder

                    o Codimstedd hidbi b-li -

              a     jffl are qtfl &nrate In dlfltrstatlng th’onlc Inwkimat from ters
                    of the *a aft, aid nAd be flqed when


          P9

          S/I/Ron                                      conaa1ao oat




                                                                                                        If-
                                                                      •   -        I’•      i.
                                                                  -
                                                                              _J   i.i.i

                           CAUSE NO. DC-13-05893                                                 -3


TRENTS. GRIFFIN                                     IN THE DISTRICT CO

      Plaintiff,
v.                                                   lOPt JUDICIAL DISTRICT

                                                                                           eI4.
AMERICAN ZURICH INSURANCE
COMPANY
        Defendant                                    DALLAS COUNTY, TEXAS



       REQUEST FOR FINDING S OF FACT AND CONCLUSION OF LAW

TO THE HONORABLE COURT:

      Trent S. Griffin, a plaintiff in the above-referenced cause, in which
judgment was rendered on August 15, 2014, requests that you state, in
 writing, the facts found by you, and that you separately state, in writing,
 your conclusion of law, and further, that you file such findings of fact and
 conclusions of law with the clerk of this Court so that they shall be part of
 the record of the above cause, all in accordance with Rule 297 of the Texas
 Rules of CMI Procedure.




                                        1


                                                                                                 161
Respectfully submitted,




 .        fN%>
       S. Gri         se
 ‘74 Mean en g Dr.
  Cedar Hill, Texas 75104
  214-418-9609




            2


                            162
                         CERTIFICATE OF SERVICE

     I certify that a true copy of the above Request for Fact and
Conclusions of bw has been been sent by certfied mail by depositing it
enclosed in a postpaid, properly addressed wrapper in a post office or
official depository under the care and custody of the United States Postal
Service to attorney Todd Richards, The Silvera Firm, 1015 Providence
Towers East, 5001 Spring Valley Road, Dallas, Texas 75244, attorney of

record for American Zurich Insurance Company at Corporation Service
Company, 211 East T” Skeet #620 Austin, Texas, Travis County, Texas.
SIGNED on September        2014.




                                          S.   &iif)4Ie




                                      1


                                                                             163
                                 CAUSE NO. DC-13-05893
                                                                   n-fl.
TRENT S. GRIFFIN                                        IN ThE DIST C XRT
         Plaintiff,
v.                                                       1O1 JUDICIAL D9jaIcv             ,


                                                                          V
AMERICAN ZURICH INSURANCE
COMPANY

          Defendant.                                     DAUAS COUNTY, TEXAS



                                MOTION FOR NEW TRIAL

TO ThE HONORABII COURT:                                                                       19
     Trent S. Griffin, Sr., Plaintiff, moves this Court to set aside the judgment
                        15th,    2014, In the above-styled and number casue and
rendered on August
to order a new trial, and in support of this motion shows:




                            I.     PRELIMINARY MOT1ON

1.     The trial court erred in the ruling, allowing defendant to file
inadmissable evidence. In accordance with Government Code 2001.173,
TRIAl. DE NOVO REVIEW, (a) If the manner of review authorized by law for
the decision in a contested case that is the subject of complaint is by trial
de novo, the reviewing court shall try each issue of fad and law in the

                                            1


                                                                                    164
 manner that applies to other civil suits in the state as though
                                                                   there had not
 been an intervening agency action or decidson but [may
                                                           not admit] in
 evidence the fact of prior state agency action or the nature
                                                              of that action
 except to the limited extent necessary to show compliance
                                                              with statutory
 provisions that vest jurisdiction in the court.
 2.   The court erred in granting the defendants motion of
                                                           summary
judgment without providing the parties notice of the hearing
                                                             or submission
date of a summary judgment motion .[see Martin v. Martin & Richards,
inc.,989 S.W.2d 357,359 ffex.1998); Okoliv. Texas Dept of Human
Services, 117 S.W.3d 477,479 (rex. App.—Texarkana 2003, no pet.) (notice
by a party that summary judgment motion would be presented to court
was not notice of hearing date); see also Tex. R. Civ. P. 4; Lewis v. Blake, 876
5.W.2d 314,315 (Tex. 1994) ( disapproving courts of appeals’ opinion that
21 daysmust elapse between date of service and date of hearing)]. Even
though an actual hearing may not occur, because it is within the trial
judge’s discretion whether to hold a hearing, a hearing date must be set
and specified in a notice to the parties in order to set the filing deadlines
[see Martin v. Martin & Richards, Inc., 989 S.W.2d 357, 359 (rex. 1998)).
The plaintiff was not given notice at all of the summary judgment hearing.
In addition, the plaintiff was deprived of any right to file a written response
to the summary judgment sought by the defendant, American Zurich
Insurance Company. (see May v. Nacogdoches MemoHal Hosp., 61 S.W.2d,
626-627 ( Tex. App.—Tyler 2001, no pet)].




                                       2


                                                                                   165
                                       II.   EVIDENCE
     3. The trial court erred in the ruling,
                                             allowing defendant to file
    inadmissabje evidence. In accordance
                                             with Government Code 2001.173,
   TRIAL DE NOVO REVIEW, (a) If
                                   the manner of review authorized
                                                                       by law for
   the decision in a contested case that
                                          is the subject of complaint is by
                                                                            trial
   de novo, the reviewing court shall
                                       try each issue of fact and law in the
  manner that applies to other civil
                                      suits in the state as though there
                                                                          had not
  been an intervening agency action or
                                          decicison but [may not admitJ in
  evidence the fact of prior state agency
                                            action or the nature of that action
 except to the limited extent necessary to
                                               show compliance with statutory
 provisions that vest jurisdiction in the court.
 4. The trial court erred in admitting into evidence
                                                         of the defendant Texas
 Department of Insurance Division of Workers’ Compens
                                                             ation
Commissioner’s Order for MMI/IR determination, a state doct
                                                           or DWCOS9
certification form, a state doctofl evaluation with range of
                                                             motion records
of the plaintiff (doctor’s report of Andrew Cole, M.D.) as Exhibit
                                                                   “A”,
Contetsted Case Hearing Decision and Order as Exhibit B, and
                                                             Appeals
Panel Decision as Exhibit “C’. see Government Code 2001.173.
5.        The trial court erred in admitting into evidence expert testimony,
which in Texas Supreme Court in Cramp announced a general rule
                                                               that
causation requires expert medical evidence. However, there are
                                                               exceptions
to the general rule. In Guevam ii’. Fesrer the Court stated: Type of
                                                                     evidence
establishing a sequence of events which provides a strong, logically
traceable connection between the event and the “condition” could suffice


                                             3


                                                                                    166
  to support a causation finding 1) are
                                        within the common knowledge and
  experience of a layperson, 2) dId not exist
                                              before accident, 3) appeared
  after and close in time to the accident
                                          and 4) are within the common
  knowledge and experience of laypenon
                                           a work injury. The Texas Supreme
  Court, later noted [non-expert] evidence
                                            alone is sufficient to support a
 finding of causation in limited circumstances
                                                where [both] the
 [o]ccurence and [c]ondition complained of
                                              are such that the general
 experience and common sense of layperson are
                                                   sufficient to evaluate the
 conditions and whether they were probably caused
                                                       by the occurence. see
 Guevara v. Ferrer 247 5.W3d 662 flex. 2007).
 6.   The trial court erred In admitting into evidence a peer review
                                                                     provided
by Dr. Phllhp Osborne on May 2, 2012. The defendant [did not]
                                                                 dispute the
or contest the compensability of the plaintiffs injury on or before the
                                                                        sixty
(60) days after the date on which the insurance carrier is notified of the
injury, the insurance carrier waives its right to contest compensability.
                                                                          The
initiation of payment by an insurance carder does not affect the right of
the insurance carrier to continue to investigdte or deny the compensability
of an injury during the sixty(60) day period, see Texas Labor Code section
409.021(c). In addition, the peer review [does not] provide any newly
discovered evidence that was performed after the sixty(6O) days to contest
compensability. The plaintiff suffered a cervical spine injury, and the peer
review is specific to lumbar spine conditions. Further, in accordance with
[section 409.021(d)], an insurance carrier that contest compensability of
the claimed injury after sixty(60) days on the basis of newly discovered


                                      4


                                                                                167
 evidence is liable for, and must continue to pay, all benefits
                                                                until the
 Division has made a finding that the evidence could not have
                                                                 been
reasonably discovered earlier which never occurredj section
                                                             124.3(c)(2).
7. The trial court erred in not reviewing the evidence that
                                                            contained
genuine disputes. Dr. Martin Steiner’s Nature of Incident Report
                                                                 dated
October 19, 2012 contained the slxty(60) day time frame to
                                                           contest
compensability. It identifies the “notification of first income benefit
payment” dated 3/27/2012 and “notice of disputes issues” dated 5/9/2012
which is in excess of sbcty(60) days. Moreover, in the defendant’s motion
for summary judgment, under “BACKGROUNG”, the defendant accepted
the claim as compensable and initiated temporary income benefits (TIBs)
on February 22, 2012. The insurance carrier had knowledge and was
notified of the injury on February 22, 2012. Therefore, the insurance carrier
waived its rights to compensability when the insurance carder submitted a
‘notice of disputes” to the Division.


                              Ill.   ThE CHARGE
8.   The trial court erred in refusing to review the following issues. These
issues were supported by an affirmative written pleading, raised by
evidence, and should have been part of the review process. ft is clear and
conclusive, the defendant [did notj establish all elements of its cause of
action as a matter of lawjTex. R. Civ. P. iGGa(c); see Williams v. Glash, 789
S.W.2d 261, 264 (rex. 1990); Nixon v. Mr. Property Management, 690
S.W.2d 546,548 (rex. 1985); Jeter v. McGraw, 79 S.W.3d nil 214 (Ta


                                        5


                                                                                168
 App.—Beaumont 2002, pet.denied); To prevail and put the
                                                            burden on the
 non-movant to raise a genuine issue of material fact, the
                                                           movant must
 conclusively establish, by [proper) summary judgment eviden
                                                              ce, all
essential elements of the claim[ MMP, Ltd. v. Jones, 710
                                                         S.W.2d 59, 60 (Tex.
1986)).


                            IV.   LACK OF EVIDENCE
9.  The was no evidence to support the trial court in granting a summa
                                                                        ry
judgement. The evidence that was admitted is inadmissable becaus
                                                                   e this
was a trial de novo pursuant Government Code 2001.173.
10. The trial court erred in the ruling, allowing defendant to file
inadmissable evidence. In accordance with Government Code 2001.173,
TRIAL DE NOVO REVIEW, (a) If the manner of review authorized by law for
the decision in a contested case that is the subject of complaint is by trial
de novo, the reviewing court shall try each issue of fact and law in the
manner that applies to other civil suits in the state as though there had not
been an intervening agency action or decicison but [may not admit] in
evidence the fact of prior state agency actIon or the nature of that action
except to the limited extent necessary to show compliance with statutory
provisions that vest jurisdiction in the court.



                       V.   WEIGHT OF ThE EVIDENCE
11. The trial court erred in determining the defendant’s evidence was
acceptable in trial de novo. The evidence presented by PEER REVIEW by Dr.


                                       6


                                                                                169
Phillip Osborne doesn’t correlate to the plaintiffs injury of Cervical Spine
Injury and the Expert Witness Martin Steiner, M.D. is irrevalant because
the insurance carrier waived its rights to contest the compensability of the
injury within the sbdy(6O) day period after notification of the injury.
Moreover, the occurence and condition of the injury a layperson can
determine the work injury.
12. The defendant has not provided sufficient evidence to support the trial
court’s finding for summary judgment on all elements in an affirmative
pleading supported with evidence. The evidence that was submitted to
support a summary judgment is inadmissable pursuant Government Code
2001.173.
13. The plaintiff exercised due diligence in preparing for trial, and failure
to submit summary judgment evidence when there was no notice of
 hearing or submission date of a summary judgment motion provided by the
 court or the defendant’s attorney.
      WHEREFORE, Plaintiff request that this Court set aside the judgment
 in this cause and order a new trial.


                             Respectfully submitted,


                             jPrnse
                               4 Mekad6ring Dr.
                             Cedar Hill, Texas 75104
                             214418-9609



                                         7


                                                                                170
                             CAUSE NO. DC-13-05893

TRENT S. GRIFFIN                                      IN ThE DISTRICT COURT

         Plaintiff,

v.                                                     101 JUDICIAL DISTRICT



AMERICAN ZURICH INSURANCE
COMPANY

           Defendant                                    DALLAS COUNTY, TEXAS



                                     AFFIDAVIT



 STATE OF TEXAS

 COUNTY OF DALLAS


     BEFORE ME, the undersigned Notary Public, on this day personally
 appeared Trent S. Griffin, Sr., who being by me duly sworn on his oath
 deposed and said:

 1. I am Trent S. Griffin, Sr., the plaintif, a pro se litigant in the the above-
 styled and numbered cause.

 2.      I make this affidavit in support of a motion for new thai.

 3.      In preparing this cause for trial, I made the following investigation:

          a. Reviewed and found case law to determine the plaintiff is entitled
     to a new triaL
          b.   The evidence submitted to the thai wuft is inadmissable,
                                           1

                                                                                    171
therefore, judgment should be set aside and a new thai granted to the
plaintiff.
      c. The plaintiff submitted an affirmative pleading on its merits with
evidence and the defendant did not establish condusively all elements of
its cause of action as a mater of law.
      d. The plaintiff did not receive notice of hearing or submission date
for summary judgment motion.
     a. The plaintiff did not receive a motion for summary judgment
from the defendant.
      f. Expert witness in the above-styled case and cause number is not
needed In a case that can be decided by a layperso&s knowledge of a work
injury.
      g. Peer Review evidence does not correlate to the plaintiffs cervical
injury, weight of the evidence doesn’t suffice summary judgment evidence.
     h. All state evidence is inadmissable in a trial de novo review of the
plaintiffs work injury.



                                              Gn.

      SUBSCRIBED AND SWORN TO BEFORE ME on Q’                   day of
 September, to certify which witness my hand and official seal.
          A




                                                    PUBLIC

                                  Printed Name:              1-tL!rt.aN(t2

       SDWINALLANHEPNANDEZ
                                   Notary Number.      I 71 it
       My CommIs Eres
  p
“d/      FebruaryOB,2a17                        -




                                   Commission Expires:     02-/o 6/17


                                                                              172
                           CERTIFICATE OF SERVICE

       I certify that a tnie copy of the above Motion for New Thai has this
day   been sent by certfied mail by depositing ft endosed in a postpaid,
                                                             sitory under the
properly addressed wrapper in a post office or official depo
                                                                   Todd
care and custody of the United States Postal Service to attorney
Richards, The Silvera Firm, 1015 Providence Towers East, 5001 Spring Valley
Road, Dallas, Texas 75244, attorney of record for American Zurich
                                                                  70)   Street, ft
Insurance Company at Corporation Service Company, 211 East
620 Austin, Texas, Travis County, Texas.
 SIGNED on September 5dI, 2014.




                                          1

                                                                                     173
                              CERTIFICATE OF SERVICE

       I certify that a true copy of the above Motion for Appellant’s Brief and
Appellant’s Brief has been sent by certfied mail by depositing it enclosed in
a postpaid, properly addressed wrapper in a post office or official
depository under the care and custody of the United States Postal Service
to attorney Todd Richards, The Silvera Firm, 1015 Providence Towers East,
5001 Spring Valley Road, Dallas, Texas 75244, attorney of record for
American Zurich Insurance Company at Corporation Service Company, 211
       7th
East         Street, #620 Austin, Texas, Travis County, Texas.
SIGNED on March 30, 2015.

CMRR: 7013 2250 0002 3632 3256




                                        3jt S. GrIffj /o se
