                                                                                      FILED
                                                                                    Feb 19, 2020
                                                                                    10:14 AM(CT)
                                                                                TENNESSEE COURT OF
                                                                               WORKERS' COMPENSATION
                                                                                      CLAIMS




            TENNESSEE BUREAU OF WORKERS' COMPENSATION
           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                            AT MEMPHIS

ALISHA THOMAS,                                  )       Docket No. 2017-08-0024
         Employee,                              )
v.                                              )
FEDERAL EXPRESS CORP.,                          )       State File No. 95463-2015
         Employer,                              )
And,                                            )
AGRI GENERAL INS. CO.,                          )       Judge Allen Phillips
         Carrier.                               )


        COMPENSATION ORDER FOR PERMANENT PARTIAL DISABILITY
                          BENEFITS


        Ms. Thomas filed a Petition for Benefit Determination (PBD) seeking permanent
total disability benefits or additional permanent partial benefits after a settlement. Federal
Express contended the underlying injury was non-compensable, but even if it were,
disputed the extent of any increased disability. The Court holds Ms. Thomas is entitled to
increased permanent partial disability benefits under Tennessee Code Annotated section
50-6-207(3)(B) (2019).

                                     History of Claim

        In the previous Court-approved settlement, Federal Express paid Ms. Thomas
permanent partial disability benefits based on a 10% impairment rating from Dr. Melvin
Goldin, and it provided lifetime medical benefits "directly related to the subject injury."
The agreement stated Ms. Thomas suffered a "contusion to [her] neck and headaches" on
November 23, 2015, when she was struck by a package. Additionally, the parties agreed
that Ms. Thomas could file a PBD for increased benefits under Tennessee Code
Annotated section 50-6-207(3)(B) if she had not returned to work "at the expiration of the
initial compensation period occurring on September 25, 2017."




                                                    1
       After the settlement, Ms. Thomas did not return to work as of September 25 and
timely filed the PBD at issue. 1 In it, Ms. Thomas stated that she was "struck in the head
by a heavy package" and she was "unable to return to work due to my work-related
injuries." She claimed entitlement to permanent total disability benefits or alternatively
enhanced permanent partial disability benefits under Tennessee Code Annotated section
50-6-242.

        Ms. Thomas deposed Dr. Melvin Goldin, a psychiatrist, twice: once before the
filing of the PBD and again almost exactly one year later. 2

        From his testimony, it appears that Dr. Goldin was Ms. Thomas's authorized
treating physician. His diagnosis at Ms. Thomas's first visit in May 2016 was not
headaches or a neck contusion as listed in the settlement agreement, but instead,
verbatim, "Somatic symptom disorder coded in International Classification of Diseases
[lCD] lOth Edition as F45.1 of moderate severity." He characterized Ms. Thomas's
presentation as "excessive thoughts, feelings and behaviors related to somatic symptoms
as manifest by disproportionate and persistent thoughts about the seriousness of one's
symptoms[.]" This remained the diagnosis in November 2016 when he assessed his 10%
rating.

       Dr. Goldin's diagnosis formed the basis for Federal Express's argument that Ms.
Thomas was not entitled to increased benefits. Specifically, it argued that a somatic-
symptom disorder is a non-compensable "mental injury." In support of that position, it
offered an excerpt of the lCD manual that defined somatoform disorders much like Dr.
Goldin. Further, it offered an excerpt from the AMA Guides to the Evaluation of
Permanent Impairment which provides that somatoform disorders are neither work-
related nor ratable. Federal Express conceded it did not advance these arguments before
settlement of the original claim.

       Beyond his rating, Dr. Goldin testified extensively regarding Ms. Thomas's
continued psychological symptoms and his treatment, which included medications and
counseling. He confirmed his diagnosis remained somatic-symptom disorder through
September 17, 2018. He testified that her condition was then "starting to go beyond
what's common with a pain disorder [and was] moving into a delusional disorder." For
instance, at a visit on October 18, Dr. Goldin noted Ms. Thomas had been hospitalized
for ten days due to mental problems. When asked if the hospitalization was medically

1
    Her attorney at the time later withdrew from the case.
2
  Dr. Goldin's testimony in both depositions is controlling of the dispositive issue. However, the
collective medical records placed into evidence exceed 600 pages. The Court reviewed all of the records
but will not summarize them in detail, as they are not necessary to address the relevant issue. The
complete record is listed in the Appendix to this Order.

                                                             2
necessary, he said yes; when asked if it was "related to her workers' compensation
injury," he said, "I was not certain of that."

       This uncertainty continued. For example, when he testified to his uncertainty over
the cause of Ms. Thomas's hospitalization, he also said he was "beginning to entertain the
question that ... there was a severe impairment premorbidly" and that Ms. Thomas's
"degree of distress and impairment by this point was causing me to question whether this
was actually connected [to the injury]." He elaborated that he did "not believe the
diagnosis of somatoform disorder of any kind accounts for the level of [Ms. Thomas's]
psychotic, delusional preoccupation;" instead, "[t]here is an additional diagnosis which I
have not made thus far officially." When asked to explain, Dr. Goldin said, "I would have
to give that some thought, that's why I haven't officially made it .. . but it's definitely a
psychotic disorder." Importantly, he added that he could not differentiate which of Ms.
Thomas's complaints were related to her injury and which were not.

       Before his change of opinion, Dr. Goldin completed a "Physician Certification
Form" under section 50-6-242 certifying that Ms. Thomas could not return to her pre-
injury occupation because of the injury. In fact, he also testified that Ms. Thomas's
mental-health problems precluded her from gainful employment of any kind, both before
and after his change of diagnosis. These opinions supported Ms. Thomas's claim for
increased benefits. At the hearing, her testimony focused on her ongoing psychological
symptoms, which prohibited her from working. She said that she currently receives
Social Security Disability benefits.

      Federal Express maintained its argument regarding the non-compensability of the
mental injury and offered the deposition of Dr. Mark Webb, a psychiatrist, who evaluated
Ms. Thomas at Federal Express's request. In October 2017, at approximately the same
time Dr. Goldin said Ms. Thomas's complaints were becoming delusional, Dr. Webb
thought Ms. Thomas exhibited signs of "histrionics," described by him as "making
mountains out of molehills, blowing things out of proportion, [and] making bizarre
statements." He did not relate those complaints to the work injury.

                       Findings of Fact and Conclusions of Law

      Ms. Thomas must establish all elements of her claim by a preponderance of the
evidence. See Tenn. Code Ann.§ 50-6-239(c)(6) (2019).

       To recover benefits, she must show to a reasonable degree of medical certainty
that her work contributed more than fifty percent in causing her injury when considering
all causes. "Shown to a reasonable degree of medical certainty" means that, "in the
opinion of the treating physician, it is more likely than not considering all causes as
opposed to speculation or possibility." Tenn. Code Ann.§ 50-6-102(14)(A)-(D).


                                                 3
        The Court begins its analysis with the settlement agreement. In the agreement,
Federal Express did not dispute Dr. Goldin's rating, and the Court holds that Federal
Express cannot question it now. Rather, both parties are bound by the agreement's terms.
"The doctrine of res judicata or claim preclusion bars a second suit between the same
parties or their privies on the same claim with respect to all issues which were, or could
have been, litigated in the former suit." Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn.
2012) (emphasis added). If Federal Express questioned the validity of Dr. Goldin's
rating, it should have contested its validity before settling Ms. Thomas's original award.

        Likewise, though the injury in the settlement agreement was not defined as a
somatic-symptom disorder, the parties settled the case based on a rating for that
diagnosis. Again, res judicata bars Federal Express from contesting the compensability of
the disorder that prompted the rating at the time of the settlement. See Uselton v.
Conwood, No. 02S01-9607-CV-00070, 1997 Tenn. LEXIS 108, at *11 (Tenn. Workers'
Comp. Panel Feb. 25, 1997) ("Although they ultimately settled their first suit, both
parties had full opportunity to litigate the issues," and res judicata barred a second suit).

       However, precluding a challenge to the original injury does not end the Court's
inquiry. Rather, it must consider to what extent, if any, Ms. Thomas is entitled to
permanent disability benefits beyond those paid under the settlement agreement.

        The Court first considers whether Ms. Thomas is entitled to increased benefits
under Tennessee Code Annotated section 50-6-207(3)(B). Under that statute, she is
entitled to increased benefits if, "at the time" her initial benefit period expired, she had
not returned to work at the same or greater wage earned at the time of injury. (Emphasis
added). The proof is uncontroverted that Ms. Thomas had not returned to work when the
initial compensation period expired on September 25, 2017, and as of that date, Dr.
Goldin maintained his opinion that Ms. Thomas's injury was work-related. Thus, the
Court holds Ms. Thomas is entitled to increased benefits under section 50-6-207(3)(B).

       Second, the Court considers whether Ms. Thomas is entitled to additional benefits
under section 50-6-242(a) in lieu of increased benefits under section 50-6-207(3)(B). To
receive additional benefits, the Court must find this is an extraordinary case and that, by
clear and convincing evidence, it would be inequitable to limit Ms. Thomas's recovery to
only the benefits under section 50-6-207(B). Further, Ms. Thomas must establish, as of
the date of the award, the following three factors:

       1)     She has an impairment rating of at least 10% to the body as a whole
       according to the AMA Guides from the authorized treating physician;




                                                 4
       2)      She has a certification from the authorized treating physician that "due to
       the permanent restrictions . . . as a result of the injury [she] no longer has the
       ability to perform [her] pre-injury occupation; and
       3)      She is not earning 70% or more of the wages she earned at the time of
       InJUry.

(Emphasis added).

        Notably, the language of section 50-6-242(a) is different than section 50-6-207(B)
in an important respect: namely, section 242(a) considers the employee's inability to
work as of the date of the award rather than at the time the initial benefit period expired.
(Emphasis added). This difference controls here. Specifically, the Court finds Dr. Goldin
testified that as of September 2018, one year after the expiration of the initial benefit
period, Ms. Thomas's condition had gone beyond somatic symptoms, and he could not
say with certainty the new diagnosis, yet unnamed, was work-related.

        Thus, at the time of the award, specifically the trial date, Ms. Thomas's proof did
not establish she was unable to work "as a result of the injury." See Batey v. Deliver This,
Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 2, at *9 (In analyzing a factor of section 50-6-
242, the Appeals Board noted the examination is made "at the time of trial") (Emphasis
added). It follows, and the Court holds, that Ms. Thomas is not entitled to section 50-6-
242 additional benefits.

        Third, the Court holds Ms. Thomas is not entitled to permanent total disability
benefits. To be eligible for those, she must establish that, because of her injury, she is
"totally incapacitated from working at an occupation that brings [her] an income[.]"
Tenn. Code Ann. § 50-6-207(4)(B). As noted, at the time of trial, the proof does not
support that her injury at Federal Express was the cause of her incapacitation.

       In summary, Ms. Thomas is entitled to increased benefits under Tennessee Code
Annotated section 50-6-207(3)(B). Under that section, the only applicable multiplier is
1.35 times the original award because Ms. Thomas did not return to work. The Court
finds the other multipliers do not apply because Ms. Thomas is under age forty, has a
high school diploma, and lives in a county with an unemployment rate that is not two
percentage points greater than Tennessee's average rate. Thus, under the statutory
formula, her increased benefits are $3,379.01. 3

       Finally, Ms. Thomas's former counsel filed an Attorney's Lien requesting
reimbursement of expenses of $6,464.22 and requesting a ten-percent attorney's fee
against Ms. Thomas's recovery. The Court reserves determination of the lien. Ms.

3
 The calculation is: 450 weeks x 10% x 1.35 x $214.54 (the compensation rate)= $13,033.31 less Ms.
Thomas's original award of$9,654.30.

                                                    5
Thomas's former counsel must contact the Court to set a hearing on the lien within
fifteen days of entry of this order if counsel desires to enforce it. At that hearing, the
Court will consider both the positions of Ms. Thomas and counsel regarding the merits of
the fee lien. As to expenses, Ms. Thomas has not requested discretionary costs at this
time.

IT IS, THEREFORE, ORDERED as follows:

   1. Federal Express shall pay Ms. Thomas increased permanent partial disability
      benefits of$3,379.01 under Tennessee Code Annotated section 50-6-207(3)(B).
   2. Federal Express shall continue to pay reasonable and necessary future medical
      expenses as required by the settlement agreement of March 2, 20 17, under
      Tennessee Code Annotated section 50-6-204(a)(l)(A).
   3. Ms. Thomas's claim for additional benefits under Tennessee Code Annotated
      section 50-6-242 and her claim for permanent total disability under Tennessee
      Code Annotated section 50-6-207(4) are dismissed with prejudice.
   4. Ms. Thomas may file a motion for discretionary costs incurred in prosecuting her
      claim.
   5. The Court assesses the $150.00 filing fee to Federal Express to be paid to the
      Court Clerk within five business days of this order becoming final under
      Tennessee Compilation Rules and Regulations 0800-02-21-.06, for which
      execution may issue if necessary.
   6. Absent an appeal, this order shall become final thirty days after issuance.
   7. Federal Express shall file a Statistical Data Form (SD-2) with the Court Clerk
      within five business days of the date this order becomes final.


ENTERED February 19,2020.




                                                                    pensation Claims




                                                6
                                     APPENDIX

Exhibits:
   1. Dr. Dale Foster Neuropsychological Evaluation
   2. Dr. David Goldstein Psychological Evaluation
   3. Deposition ofDr. Melvin Goldin (April27, 2018)
   4. Deposition ofDr. Melvin Goldin (April26, 2019)
   5. Deposition of Dr. Mark Webb
   6. Medical Records of St. Francis Hospital
   7. Photographs ofMs. Thomas's head
   8. Opinion letter of Dr. Alan Nadel
   9. Affidavit of Dr. Mark Green
   10. Text of International Classification of Diseases, lOth ed., Chapter 5
   ll.AA£4 Guides, Chapter 14, Section 1, pp. 348-349
   12.AA£4 Guides, Glossary, pp. 609-615
   13. Chronological Medical Records (submitted by employer)
   14. Supplemental Chronological Medical Records (submitted by employer)
   15. Vocational Evaluation of Dr. David Strauser, Ph.D.
   16. Order Approving Workers' Compensation Settlement Agreement
   17. Records of Dr. Wally Juraschka, Ph.D.

Technical record:
   1. Petition for Benefit Determination (May 4, 20 18)
   2. Dispute Certification Notice (July 11, 2018)
   3. Request for Scheduling Hearing
   4. Scheduling Order
   5. Motion to Amend Scheduling Order
   6. Employee's Response to Employer's Motion to Amend Scheduling Order
   7. Order Granting Motion to Amend and Amended Scheduling Order
   8. Second Motion to Amend Scheduling Order
   9. Second Order Granting Motion to Amend Scheduling Order and Amended
       Scheduling Order
   10. Joint Motion to Continue Compensation Hearing
   11. Third Amended Scheduling Order
   12.Dispute Certification Notice (January 8, 2019)
   13. Motion to Continue Compensation Hearing
   14. Order Continuing Compensation Hearing
   15. Motion to Withdraw as Counsel for Employee
   16. Ms. Thomas's Response to Motion to Withdraw
   17. Order Allowing Withdrawal of Counsel
   18. Notice of Attorney's Lien
   19. Fourth Amended Scheduling Order


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       20. Employer's Pre-Hearing Statement
       21.Employee's Handwritten Pre-Hearing Statement
       22. Employee's Pre-Hearing Statement



                             CERTIFICATE OF SERVICE

      I certify that a copy of this Compensation Hearing Order was sent as indicated on
February 19, 2020.

Name                          Certified    First           Service Sent To:
                               Mail        Class   Email
                                           Mail
Alisha Thomas,                                        X    blessbysuccess@aol.com
Self-Represented Employee
Stephen Vescovo,                                      X    svescovo@lewisthomason.com
Attorney for Employer
Morgan & Morgan, c/o                                  X    jmay@forthepeople.com
Jonathan May, Employee's
Former Attorneys




                                          h2/(KA ~Ok-- .
                                          ~hrum, Court Clerk
                                          Court of Workers' Compensation Claims
                                          WC.CourtClerk@tn.gov




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