Bryant, Joshua v. Malco Theaters, Inc. ( 2021 )

FILED
Jan 26, 2021
02:42 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
JOSHUA BRYANT, ) Docket No. 2020-08-0309
Employee, )
v. )
MALCO THEATERS INC., ) State File No. 97676-2017
Employer, )
And )
LIBERTY MUTUAL FIRE INS. CO., ) Judge Allen Phillips
Carrier. )
EXPEDITED HEARING ORDER DENYING BENEFITS
This case came before the Court for an Expedited Hearing on January 13, 2021. Mr.
Bryant requested additional medical and temporary disability benefits for a head injury.
Malco asserted that he filed his Petition for Benefit Determination (PBD) outside the
applicable statute of limitations and it had paid all benefits to which Mr. Bryant was
entitled. The Court finds Mr. Bryant filed his PBD outside the applicable statute of
limitations and denies his request for benefits at this time.
History of Claim
On December 14, 2019, Mr. Bryant hit his head on a wooden column at Malco’s
theater. He said he immediately became dizzy and experienced impaired vision and
hearing. After reporting the injury, he laid down to regain his composure and then went
home.
Mr. Bryant awoke the next morning with the same symptoms and went on his own
to St. Francis Hospital. There, a CT scan of the brain was interpreted as normal, and a
provider diagnosed a closed-head injury. Mr. Bryant returned two days later, received the
same diagnosis, and underwent another CT that was interpreted as showing no acute
findings.
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Mr. Bryant then received an authorized medical evaluation at Methodist Minor
Medical, where he reported blurred vision, a headache and feeling unsteady. The provider
recommended a neurological evaluation.
Malco offered Mr. Bryant a panel of neurologists, from which he chose Dr. Alan
Nadel. On January 10, 2018, Dr. Nadel did not find “anything specific” and stated he
“really wonder[ed] if some of [Mr. Bryant’s] symptoms [were] factitious.” However, he
placed Mr. Bryant off work. On February 1, Dr. Nadel again stated that he questioned “how
much of this is factitious altogether” but continued the off-work restriction. He obtained
an MRI of the brain that showed no acute findings. In March, again questioning Mr.
Bryant’s symptoms, he nonetheless recommended a second opinion.
Malco provided a second opinion with Dr. Mohammed Assaf, who saw Mr. Bryant
on April 9. The limited record of that visit includes Dr. Assaf’s notation that Mr. Bryant
exhibited decreased strength when tested but was able to lift himself from the examination
table using only his arms. Dr. Assaf diagnosed headaches and dizziness and believed Mr.
Bryant could return to work.
On April 10, Dr. Nadel completed a final medical report in which he placed Mr.
Bryant at maximum medical improvement with no impairment and returned him to regular
duty. In an affidavit, Malco’s payroll manager, Nancy Keough, stated she learned of Mr.
Bryant’s release on April 16 and told him he could return to work. Mr. Bryant reported for
work on April 28, but before his shift ended, he complained of dizziness and ultimately
called an ambulance. Medical records from that date document only the ambulance
transport and that a provider at Baptist Hospital said Mr. Bryant could return to work on
May 2.
According to Ms. Keough, Mr. Bryant repeatedly said that he was unable to work.
Malco responded that the treating physicians had cleared him to do so, and, if he felt
otherwise, he would need to obtain another diagnosis on his own. Because of Mr. Bryant’s
continued assertions that he could not work, Malco terminated him on May 16.
Afterward, Mr. Bryant continued treating on his own. Records from those providers
include the history and treatment for the injury and for vertigo. In the last note, dated
October 22, 2020, a provider advised Mr. Bryant to return in six months. The records
contain no opinion as to a causal relationship between vertigo, or any other condition, and
the work injury.
Mr. Bryant filed a PBD on March 26, 2020, in which he said he was not given proper
medical treatment and wanted Malco to pay the bills he incurred for the treatment he
received after his release from Dr. Nadel. He also said that Dr. Nadel “took me off work
for months starting Jan. 10, 2018.” At the hearing, Mr. Bryant requested the Court order
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Malco to pay the bills and temporary total disability from “February 2018 through April
2018.”
For its part, Malco offered the affidavit of its claim handler, who said Malco paid
Mr. Bryant benefits through April 10, 2018, when Dr. Nadel released him. As to medical
benefits, the claims handler stated Malco issued the last payment on March 22, 2019. Thus,
Malco maintained that Mr. Bryant filed his PBD more than one year after the last payment
and further argued it had provided all medical treatment made necessary by his injury.
Findings of Fact and Conclusions of Law
At an Expedited Hearing, Mr. Bryant must show he would likely prevail at a hearing
on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2019).
Under Tennessee law, when an employer voluntarily pays benefits, the employee
must file a PBD within one year of the later of two events. Specifically, the employee must
file a PBD within one year of either the date of the last authorized treatment or the date
that the employer ceased payments of compensation, whichever is later. Tenn. Code Ann.
§ 50-6-203(b)(2) (Emphasis added).
Here, Malco’s claim representative stated he issued the last payment of medical
benefits on March 22, 2019. Mr. Bryant offered no contrary evidence. He likewise did not
dispute that he filed his PBD on March 26, 2020, more than one year later. Thus, Mr.
Bryant’s claim is barred by the one-year statute of limitations, and the Court denies his
request for benefits at this time. Because of this finding, the Court need not address the
issue of Mr. Bryant’s entitlement to further benefits.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. The Court denies Mr. Bryant’s request for benefits at this time.
2. The Court sets a Status Hearing on Monday, March 22, 2021, at 9:00 a.m. Central
Time. The parties must call 731-422-5263 or toll-free at 855-543-5038 to
participate in the Hearing. Failure to call might result in a determination of the issues
without the party’s participation.
ENTERED January 26, 2021.
______________________________________
JUDGE ALLEN PHILLIPS
Court of Workers’ Compensation Claims
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APPENDIX
Exhibits
1. First Report of Work Injury
2. Wage Statement
3. Employee’s Choice of Physician Form
4. Separation Notice
5. Job Description
6. Employee’s Affidavit (filed December 7, 2020)
7. Affidavit of Nancy Keough
8. Affidavit of Joseph Medvescek
9. Medical records of St. Francis Hospital
10. Medical records of Methodist Minor Medical
11. Medical records of Dr. Alan Nadel
12. Medical records of Dr. Mohammad Assaf
13. Medical records of Rural Metro/Collierville Fire/Baptist Hospital (collective)
14. Medical records of Shea Clinic
15. Medical records of Methodist Primary Care
Technical record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Order Setting Case for Show Cause Hearing
4. Order Allowing Additional Time to File Hearing Request
5. Request for Expedited Hearing
6. Employer’s Motion to Attend Expedited Hearing by Telephone
7. Order Granting Teleconference Expedited Hearing
8. Employer’s Petition Statement for Expedited Hearing
9. Employer’s Witness and Exhibit List
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on January 26, 2021.
Name USPS Via Email Service Sent To:
Joshua Bryant, Employee X X 9146 Forest Island Dr., N.,
Collierville, TN 38017
joshuamusic7@yahoo.com
Effie B. Cozart, X effie.cozart@libertymutual.com
Employer’s Attorney kathleen.langston@libertymutual.com
______________________________________
Penny Shrum, Court Clerk
Wc.courtcler@tn.gov
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Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
Clerk of the Court of Workers’ Compensation Claims within seven business days of the
date the expedited hearing order was filed. When filing the Notice of Appeal, you must
serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082