              TENNESSEE BUREAU OF WORKERS’ COMPENSATION
             IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                            AT MURFREESBORO

HARVEY J. AMOS                                             )   Docket Nos: 2016-05-0348
          Employee,                                        )
                                                           )
v.                                                         )   State File Numbers: 27681-2016
                                                           )
GOODMAN GLOBAL GROUP                                       )
       Employer,                                           )   Judge Dale Tipps
And                                                        )
                                                           )
INDEMNITY INS. CO. OF NORTH                                )
AMERICA                                                    )
        Insurance Carrier.                                 )
                                                           )

       EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS


       This matter came before the undersigned workers’ compensation judge on October
18, 2016, on the Request for Expedited Hearing filed by the employee, Harvey Amos,
pursuant to Tennessee Code Annotated section 50-6-239 (2015). The present focus of
this case is whether Mr. Amos is entitled to temporary disability benefits for his alleged
neck injury. The central legal issue is whether Mr. Amos came forward with sufficient
evidence for the Court to determine that he is likely to establish at a hearing on the merits
he suffered an injury arising primarily out of and in the course and scope of his
employment. For the reasons set forth below, the Court holds Mr. Amos is not entitled to
the requested temporary disability benefits at this time.1

                                               History of Claim

       The following facts were established at the Expedited Hearing. Mr. Amos
suffered a work injury to his cervical spine while working at Goodman in 2010.
Goodman accepted the claim as compensable and the parties settled the claim in the
1
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.

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Chancery Court of Lincoln County on August 10, 2011. The settlement Order describes
the injury as a disc herniation at the C4-5 level that was treated by Dr. Cyrus Ghavam. It
also provided that Mr. Amos retained his statutory right to future medical treatment. (Ex.
4.)

       Mr. Amos returned to work at Goodman, although he occasionally had “flare-ups”
of neck pain. He testified that he was working as a set-up man on Friday, October 23,
2015. He did not describe any injury or incident occurring at work that day. Instead,
after he went home that evening, he began having pain, tingling, and numbness in his
arm. He called Goodman over the weekend to try to report the problem and spoke to
Bobby Griffin in Goodman’s first aid facility the following Monday. He told Mr. Griffin
about his symptoms.

        Mr. Amos testified he had to wait about two months before seeing a doctor. Once
Goodman authorized treatment, Mr. Amos saw Dr. Cyrus Ghavam, the authorized doctor
from his 2010 claim. Mr. Amos confirmed that Goodman provided all his recent medical
treatment, including cervical surgery, under the open medical provision of his 2010
injury. When the MRI ordered by Dr. Ghavam showed a herniated disc at the C3-4 disc
level, a different level than that involved in his prior claim, Mr. Amos realized he had a
new injury.

       Mr. Amos agreed on cross-examination that the delay in starting treatment was
actually about three weeks and that the delay was the result of Goodman having to
retrieve his original workers’ compensation file from storage. He also confirmed that the
onset of his pain and numbness occurred at home. Mr. Amos admitted he felt no
symptoms while at work and there was no specific injury incident. He agreed with a
statement contained in his affidavit that he initially asked for treatment under his open
medical settlement. He testified he did not know he had a new injury until Dr. Ghavam
performed the MRI.

       Terri Owens is the claims manager for Goodman. She testified that Mr. Amos
informed her on October 26, 2015, that he was having another flare-up and needed to
return to the doctor. She told him the file was probably in archives and it would take a
couple of weeks to retrieve it. Once the claims adjuster recovered the file, Goodman
made Mr. Amos an appointment with Dr. Ghavam.

       Records from The Orthopedic Center show that Mr. Amos first returned to Dr.
Ghavam on November 18, 2015, with complaints of neck and arm pain and weakness.
Imaging studies showed a solid fusion at C4-5 from the prior injury. Dr. Ghavam
ordered a cervical MRI and instructed Mr. Amos to remain off work. On December 23,
Dr. Ghavam noted the MRI showed stenosis at C3-4, “which to some extent is
accelerated by the C4-5 fusion.” He prescribed physical therapy and work restrictions.
At Mr. Amos’ follow-up visit on February 3, 2016, Dr. Ghavam noted: “He has

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developed significant junctional stenosis above his fusion. The contribution to this
degenerative change is about 3% a year from the prior fusion level and about 25%
likelihood of adjacent segment pathology within ten years. His surgery was about five to
six years ago.” Dr. Ghavam recommended anterior cervical disc fusion surgery. (Ex. 6.)

      Mr. Amos returned to Dr. Ghavam on March 30, 2016, for post-surgical follow-
up. Dr. Ghavam felt he was doing well and noted:

       There has been issue as to whether the C3-4 was related to the initial injury
       or whether there was a separate injury. Early on, I was not advised that
       there had been a second injury or did not document it. Mr. Amos identifies
       that he was injured a second time either in late October or early November
       2015, at which time he developed increased recurrence of symptoms. The
       initial surgery was in 2010 when I did the C4-5 ACDF. The second injury,
       if in fact was documented, would more likely be the causative factor for his
       recent surgery.

Dr. Ghavam kept Mr. Amos off work and told him to return in six to eight weeks. (Ex.
2.)

      On May 18, 2016, Dr. Ghavam noted Mr. Amos was doing well and returned him
to work. He also stated:

       As an administrative matter, I apparently made an error in terms of his
       injury. The initial injury that he sustained was on 09/09/2010, and I treated
       the C4-5 level at that time. He had a new injury that occurred in October
       2015, which resulted in the C3-4 level becoming herniated and requiring
       surgical treatment. My understanding is that we have attributed all of his
       injuries to his first injury, but in fact the C4-5 level is related to the
       09/09/2010 injury and the C3-4 level is related to the new injury that
       occurred in 2015.

(Ex. 3.)

       Mr. Amos filed a Petition for Benefit Determination seeking temporary disability
benefits. The parties did not resolve the disputed issues through mediation, the
Mediating Specialist filed a Dispute Certification Notice, and Mr. Amos filed a Request
for Expedited Hearing.

       At the Expedited Hearing, Mr. Amos asserted he is entitled to temporary total
disability benefits for the time he missed work due to his surgery and recovery. He
contended that, because his C3-4 disc herniation was not present during his 2010 medical
treatment, it represents a new compensable injury.

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       Goodman contended Mr. Amos is not entitled to any workers’ compensation
benefits for his alleged 2015 injury. It argued that his condition is merely a continuation
of his prior injury, and Goodman has continued to provide treatment for that injury
pursuant to the terms of the settlement agreement. Goodman insisted it received no
notice of any new injury and argued that Mr. Amos cannot meet his burden of proving his
injury arose primarily out of and in the course and scope of his employment.

                       Findings of Fact and Conclusions of Law

       The following legal principles govern this case. Because this case is in a posture
of an Expedited Hearing, Mr. Amos need not prove every element of his claim by a
preponderance of the evidence in order to obtain relief. McCord v. Advantage Human
Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). Instead, he must come forward with
sufficient evidence from which this Court might determine he is likely to prevail at a
hearing on the merits. Id.; Tenn. Code Ann. § 50-6-239(d)(1)(2015).

       To prove a compensable injury, Mr. Amos must show that his alleged injury arose
primarily out of and in the course and scope of his employment. Id. at § 50-6-102(14).
To do so, he must show an incident, or specific set of incidents, identifiable by time and
place of occurrence caused his injury. Id. at § 50-6-102(14)(A). Further, he must show,
“to a reasonable degree of medical certainty that it contributed more than fifty percent
(50%) in causing the . . . disablement or need for medical treatment, considering all
causes.” Id. at § 50-6-102(14)(C). “Shown to a reasonable degree of medical certainty”
means that, in the opinion of the treating physician, it is more likely than not considering
all causes as opposed to speculation or possibility. Id. at § 50-6-102(14)(D).

       Applying these principles to the facts of this case, the Court cannot find Mr. Amos
appears likely to meet his burden of proof. He testified there was no specific injury or
incident at work that caused his symptoms. Under these circumstances, Mr. Amos has
not presented any evidence of an incident, or specific set of incidents, identifiable by time
and place of occurrence. Further, while the statute contemplates compensable injuries
that are the result of gradual or cumulative events or trauma, Mr. Amos presented no
proof of any such activities. Instead, he testified that the onset of his symptoms occurred
at home and he did not even realize he had a new injury until he had an MRI.

        Mr. Amos also failed to meet the requirements of the second part of the analysis –
medical proof that his work was the primary cause of his injury. While Dr. Ghavram
attributed the C3-4 level “to the new injury that occurred in 2015,” he did not identify the
injury or suggest it occurred at Mr. Amos’ work.

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

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would believe the new disc herniation must be the result of a new work injury. However,
the Court cannot infer, from the mere existence of an injury, that the injury arose
primarily out of Mr. Amos’ employment.

       Therefore, the Court holds, as a matter of law, Mr. Amos has not come forward
with sufficient evidence that he is likely to prevail at a hearing on the merits. The Court
denies his request for temporary disability benefits at this time.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Amos’ claim against Goodman and its workers’ compensation carrier for the
      requested temporary disability benefits is denied.

   2. This matter is set for an Initial (Scheduling) Hearing on December 20, 2016, at
      10:30 a.m.

      ENTERED this the 20th day of October, 2016.


                                   _____________________________________
                                   Judge Dale Tipps
                                   Court of Workers’ Compensation Claims

Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Dale Tipps, Court of
Workers’ Compensation Claims. You must call 615-741-2112 or toll free at 855-
874-0473 to participate.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Central Time (CT).


Right to Appeal:

       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers’ Compensation Appeals Board. To file a Notice of
Appeal, you must:

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



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2. File the completed form with the Court Clerk within seven business days of the
   date the Workers’ Compensation Judge entered the Expedited Hearing Order.

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

4. The appealing party is responsible for payment of a filing fee in the amount of
   $75.00. Within ten calendar days after the filing of a notice of appeal, payment
   must be received by check, money order, or credit card payment. Payments can be
   made in person at any Bureau office or by United States mail, hand-delivery, or
   other delivery service. In the alternative, the appealing party may file an Affidavit
   of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
   fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
   of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
   will consider the Affidavit of Indigency and issue an Order granting or denying
   the request for a waiver of the filing fee as soon thereafter as is
   practicable. Failure to timely pay the filing fee or file the Affidavit of
   Indigency in accordance with this section shall result in dismissal of the
   appeal.

5. The parties, having the responsibility of ensuring a complete record on appeal,
   may request, from the Court Clerk, the audio recording of the hearing for the
   purpose of having a transcript prepared by a licensed court reporter and filing it
   with the Court Clerk within ten calendar days of the filing of the Expedited
   Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
   the evidence within ten calendar days of the filing of the Expedited Hearing
   Notice of Appeal. The statement of the evidence must convey a complete and
   accurate account of what transpired in the Court of Workers’ Compensation
   Claims and must be approved by the workers’ compensation judge before the
   record is submitted to the Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   five business days of the expiration of the time to file a transcript or statement of
   the evidence, specifying the issues presented for review and including any
   argument in support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within five business days of the filing of the appellant’s
   position statement. All position statements pertaining to an appeal of an
   interlocutory order should include: (1) a statement summarizing the facts of the
   case from the evidence admitted during the expedited hearing; (2) a statement
   summarizing the disposition of the case as a result of the expedited hearing; (3) a
   statement of the issue(s) presented for review; and (4) an argument, citing
   appropriate statutes, case law, or other authority.


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                                               APPENDIX

Exhibits:
   1. Affidavit of Harvey Amos
   2. March 30, 2016 TOC record
   3. May 18, 2016 TOC record
   4. August 10, 2011 Order Approving Settlement
   5. Wage Statement
   6. Records of Dr. Cyrus Ghavam
   7. Letters from Daryl Weir and Victor Dixon (Identification Only)

Technical record:2
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing




2
   The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.



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                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Requested Benefits was sent to the following recipients by the following
methods of service on this the 20th day of October, 2016.


Name                    Certified   Via        Via    Service sent to:
                         Mail       Fax       Email
Harvey Amos                X                          25 Plada Heights Rd.
                                                      Fayetteville, TN 37334
Peter Rosen, Esq.                              X      prosen@levineorr.com




                                     _____________________________________
                                     Penny Shrum, Clerk of Court
                                     Court of Workers’ Compensation Claims
                                     WC.CourtClerk@tn.gov




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