Wright, Marsha v. Tennessee CVS Pharmacy, LLC , 2019 TN WC 99 ( 2019 )

FILED
Jul 01, 2019
08:13 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
MARSHA WRIGHT, ) Docket No. 2018-08-0461
Employee, )
v. )
TENNESSEE CVS PHARMACY, ) State File No. 94867-2015
LLC, )
Employer, )
and )
NEW HAMPSHIRE INS. CO., ) Judge Deana C. Seymour
Insurance Carrier. )
)
COMPENSATION HEARING ORDER
The Court convened a compensation hearing on June 5, 2019, where the primary issue
was the extent of Ms. Wright’s permanent disability benefits. For the reasons below, the
Court holds Ms. Wright is entitled to additional disability benefits under section 50-6-242,
totaling 275 weeks of benefits.
History of Claim1
Marsha Wright worked as a supervisor for CVS when robbers entered her store,
ordered her to her knees, and held her at gunpoint. Following the robbery, an ambulance
transported her to the emergency room for treatment of anxiety and elevated blood pressure.
A few days later, Ms. Wright went to a medical clinic with ongoing anxiety and pain
in both knees. She received treatment for her knees at Campbell Clinic. Her knee pain
resolved without permanent impairment, but her anxiety continued.
1 See Appendix at pages 7 - 8 of this Order for party stipulations.
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CVS provided a panel from which Ms. Wright chose Dr. Ahmad Al-Hamda for
psychological care. Dr. Al-Hamda diagnosed Ms. Wright with post-traumatic stress disorder
(PTSD), noted her flashbacks, and traumatic nightmares, and referred her for psychiatric
treatment.
Several months later, CVS provided Ms. Wright a panel from which she chose Dr.
Melvin Goldin for psychiatric treatment. Dr. Goldin agreed with Dr. Al-Hamda’s diagnosis
of PTSD. He prescribed medication and referred Ms. Wright for psychotherapy.
Dr. Goldin placed Ms. Wright at maximum medical improvement (MMI) on
November 18, 2018. He determined she retained permanent impairment of fifteen percent to
the body as a whole and certified she could no longer perform her pre-injury occupation. Dr.
Goldin prescribed ongoing medication and psychotherapy. He noted that Ms. Wright might
be able to return to another work-setting depending on several variables such as “how and
where the place is and how she has to get there.”
The parties disagreed on the extent of Ms. Wright’s benefits. Ms. Wright claimed
entitlement to increased benefits under Tennessee Code Annotated section 50-6-207(3)(B)
and additional disability benefits under Tennessee Code Annotated section 50-6-242(a)(2).
CVS denied Ms. Wright’s entitlement to these remedies, contending she had the ability to
work but would not.
Ms. Wright testified that she worked over twenty years in a public capacity and had no
gaps in her work history until the robbery. She has not worked since the robbery and doubts
she can return to work because of her lingering mental issues.
According to Ms. Wright, she never experienced mental problems before the robbery.
Since then, however, she cannot interact with the public, suffers extreme anxiety, and
seldom leaves her home. She stated she suffers three to four panic attacks a week and
experiences migraines from her anxiety. She further indicated problems with driving and,
while she occasionally drove to the pharmacy or hair salon, her husband and father-in-law
now typically drive for her. Ms. Wright still attends church but must “sit where she can see
the door” because she is “always looking over her shoulder.” She also cannot travel to visit
her family in California and Belize because planes and airports increase her anxiety. For
these conditions, Ms. Wright treats with Dr. Goldin monthly, takes psychotropic medications,
and undergoes biweekly psychotherapy.
Ron Wright testified that he has been married to Ms. Wright for twenty-one years. He
received a call at work the night of the robbery and drove to CVS. Mr. Wright sat with his
wife until an ambulance took her to the hospital.
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Following that night, Mr. Wright changed his work shift from night to day shift since
Ms. Wright could not stay alone at night. He goes home on his lunch break to check on her
and make her meal because she cannot cook for herself safely. Mr. Wright explained that he
must call before he enters the house to avoid startling her. He further testified that Ms.
Wright takes medication and sleeps much of the day. She spends substantial time alone in
her bedroom and they no longer go out to movies or travel.
Findings of Fact and Conclusions of Law
At a Compensation Hearing, Ms. Wright must establish all elements of her claim by a
preponderance of the evidence. Tenn. Code Ann. § 50-6-239(c)(6) (2018). Here, the Court
must determine the extent of Ms. Wright’s permanent disability benefits. Tennessee Code
Annotated sections 50-6-207 and 50-6-242 direct the Court’s analysis.
Initially, Ms. Wright is entitled to an original award of sixty-seven and one-half weeks
of PPD, totaling $26,368.88, based on Dr. Goldin’s fifteen percent rating. See Tenn. Code
Ann. § 50-6-207(3)(A). Further, since Ms. Wright did not return to work within sixty-seven
and one-half weeks of her MMI date, she is entitled to increased benefits.
Tennessee Code Annotated section 50-6-207(3)(B) provides that the employee may
claim increased benefits if she has not returned to work for any employer or has returned to
work receiving less wages or salary than she received before her work injury. The award
provided by this section is known as the “resulting award,” which is calculated by applying
certain multipliers to the original award.
Ms. Wright qualifies for two of the multipliers: The parties stipulated that Ms. Wright
did not successfully return to work (1.35) and is over forty years old (1.2). Therefore, Ms.
Wright established by a preponderance of the evidence her entitlement to $42,717.58,
including the original award.
However, Ms. Wright also claimed entitlement to additional permanent disability
benefits under Tennessee Code Annotated section 50-6-242(a), which allows the Court to
award additional disability benefits (a maximum 275 weeks, including the original award), if
the Court determines by clear and convincing evidence that the permanent disability award
under section 50-6-207(3)(B) would be “inequitable in light of the totality of the
circumstances” and that the following facts are true:
1. The employee’s impairment rating is 10% or higher;
2. The authorized treating physician has certified on a Bureau form that
the employee no longer has the ability to perform his pre-injury
occupation due to permanent restrictions caused by the work injury;
and
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3. The employee is earning less than 70% of his pre-injury average weekly
wage or salary.
First, the Court finds that that this is an extraordinary case. Limiting Ms. Wright’s
award to the benefits under section 50-6-207(3)(B) would be “inequitable in light of the
totality of the circumstances.”
The Court finds that based on clear and convincing evidence, until this robbery, Ms.
Wright worked with the public for over twenty years. She has not worked since that night
and now suffers from PTSD. She fears the public and unfamiliar surroundings and seldom
leaves her home. She relies on her husband to prepare meals, check on her throughout the
day, and care for their house. Ms. Wright depends on others to drive her to church and sits
where she can monitor the public she fears. Three and one-half years after the robbery, Ms.
Wright continues psychiatric and psychological treatment, including multiple medications.
Dr. Goldin certified she could no longer perform her pre-injury occupation and questions
whether she will ever work again.
Having deemed the case extraordinary, the Court turns to the additional factors of 50-
6-242(a)(2). In this case, the Court finds Ms. Wright established by a preponderance of the
evidence that Dr. Goldin assigned an impairment of greater than 10% and certified that she
could no longer perform her pre-injury occupation. She proved that she had not worked
since the robbery, so she was not earning 70% of her pre-injury wage.
Thus, the Court awards Ms. Wright 275 weeks of benefits amounting to $107,428.75.
With the stipulated credit of $3,348.35, CVS owes Ms. Wright $104,080.40 in permanent
disability benefits.
Attorney Fees
Ms. Wright’s attorney requested approval of reasonable attorney’s fees of twenty
percent of the total award under Tennessee Code Annotated section 50-6-226(a)(1). Before
the Court can award an attorney fee in excess of $10,000.00, Tennessee Code Annotated
section 50-6-226(a)(2)(C) requires specific findings of the factors in Tennessee Supreme
Court Rule 8, Rule of Professional Conduct 1.5, which include:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
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(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services;
(8) whether the fee is fixed or contingent;
(9) prior advertisements or statements by the lawyer with respect to the
fees the lawyer charges; and
(10) whether the fee agreement is in writing.
The Court reviewed the Application for Approval of Attorney’s Fee filed by Ms.
Wright’s attorney and finds this case required significant time and expertise on the part of
Ms. Wright’s counsel. A fee of twenty percent is both statutorily authorized and customary
in these cases. Further, the amount is appropriate for successfully shepherding a complicated
case through three and one-half years of litigation, including two mediations, written
discovery, and detailed medical proof. The applicable factors, including the experience and
ability of Ms. Wright’s attorney and the written fee agreement militate in favor of the
requested fee. Therefore, the Court commutes twenty percent of the permanent disability
benefits, or $21,485.75, for Ms. Wright’s attorney’s fee.
IT IS, THEREFORE, ORDERED as follows:
1. CVS and/or its carrier shall pay Ms. Wright a lump sum of $9,543.10, representing
thirty-three weeks of benefits ($12,891.45) minus CVS’s credit ($3,348.35), for
accrued permanent disability benefits.
2. CVS and/or its carrier shall pay Ms. Wright a lump sum of $21,485.75, which her
attorney is entitled to recover as a fee of twenty percent (55 weeks) of her 275 weeks
of permanent disability benefits.
3. CVS and/or its carrier shall pay Ms. Wright ongoing permanent disability benefits on
a biweekly basis until it pays the remaining 187 weeks of benefits ($73,051.55/187
weeks = $390.65 weekly compensation rate).
4. Ms. Wright is entitled to future medical benefits under Tennessee Code Annotated
section 50-6-204(a)(1)(A).
5 This Court taxes the filing fee of $150.00 to CVS and/or its carrier under Tennessee
Compilation Rules and Regulations Rule 0800-02-21-.07 (2018).
6 CVS and/or its carrier shall prepare and submit a Statistical Data Form within ten
business days of the date of this judgment.
7 Absent an appeal, this order shall become final thirty calendar days after entry.
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ENTERED July 1, 2019.
_____________________________________
DEANA C. SEYMOUR, JUDGE
Court of Workers’ Compensation Claims
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APPENDIX
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Scheduling Hearing
4. Scheduling Order
5. Motion to Compel
6. Employee’s Response to Employer’s Motion to Compel
7. Order on Motion to Compel
8. Employee’s Pre-Hearing Brief
9. Employee’s Pre-Compensation Hearing Statement
10. Employee’s Exhibit List
11. Employee’s Witness List
12. Employee’s Counsel Application for Approval of Attorney Fee
13. Employer’s Witness and Exhibit List
14. Employer’s Pre-Hearing Brief
Stipulated Findings of Facts of the Parties:
1. Employee sustained an injury by accident arising out of the course and scope of the
employment with the Employer.
2. Employee’s date of injury is November 18, 2015.
3. Employee gave notice of the alleged injury to Employer on November 18, 2015.
4. Employee is 48 years of age and is a resident of DeSoto County, Mississippi.
5. Employee has obtained a high school diploma or GED.
6. Employee received authorized medical treatment for the injury. Medical expenses
were paid by the Employer or its workers’ compensation insurance
carrier/administrator in the amount of $40,144.77.
7. Employee reached the maximum level of medical improvement that the nature of the
injury permits on November 18, 2017.
8. Employee received temporary disability benefits. Temporary total disability benefits
were paid from November 19, 2015, to November 18, 2017, in the amount of
$40,627.60.
9. Employee has not returned to work for the Employer, earning the same or greater
wages as the Employee was earning prior to the injury.
10. Employee’s average weekly wage is $585.94, which entitles Employee to a weekly
compensation rate of $390.65.
11. Employee’s medical impairment is fifteen percent to the body as a whole per the AMA
Guides 6th Edition.
12. Based upon the November 18, 2017 MMI date , Employee’s initial award period
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expired on March 6, 2019, pursuant to Tenn. Code Ann. § 50-6-207(1)(E).
13. Employer was unable to accommodate Employee’s medical restrictions and did not
offer Employee a return position.
14. Authorized treating physicians are: 1) Dr. Goldin (psychiatrist), 2) Kathy Miller, MS,
LPC, MHSP (therapist), and 3) Dr. Cleveland (knees).
15. Employee was paid $3,348.35 as a PPD advance for which Employer is due a credit
from the PPD benefits awarded.
Exhibits:
1. Form C-20 Employer’s First Report of Work Injury or Illness
2. Form C-41 Wage Statement
3. Form C-42 Agreement Between Employer/Employee Choice of Physicians (Dr.
Melvin Goldin)
4. Physician Certification Form Pursuant to TCA § 50-6-242(a)(2)(B)
5. Deposition transcript of Dr. Melvin Goldin, including exhibits
6. Medical Records filed May 22, 2019
7. Separation Notice dated April 12, 2017
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent to these recipients as indicated on June ___,
2019.
Name Certified Via Via Email Address
Mail Fax Email
Monica Rejaei, X mrejaei@nstlaw.com
Employee’s Attorney
Tiffany Sherrill, X tbsherrill@mijs.com
Employer’s Attorney
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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II
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Compensation Hearing Order Right to Appeal:
If you disagree with this Compensation Hearing Order, you may appeal to the Workers'
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers'
Compensation Appeals Board, you must:
1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal," and file
the form with the Clerk of the Court of Workers' Compensation Claims within thirty
calendar days of the date the compensation hearing order was filed. When filing the
Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if
represented).
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 ofthe filing 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 lndigency will
result in dismissal of your 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. A licensed court
reporter must prepare a transcript and file it with the court clerk within fifteen calendar
days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
evidence prepared jointly by both parties within fifteen calendar 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
of the evidence 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. After the Workers' Compensation Judge approves the record and the court clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
party has fifteen calendar days after the date of that notice to submit a brief to the
Appeals Board. See the Practices and Procedures of the Workers' Compensation
Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court's
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann.§ 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
II I.
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Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:_ _ _ _ __ _ _ _ _ __ 2. Address: - - - - - - - -- - - --
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - -- - - -- -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -
- - - - - - - - - - - - - -- -- Relationship: - - - - - -- - - -- - -
- - - - - - - - - - -- - -- - - Relationship: - - - -- - -- - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -
6. I am employed by: - - - - - - - - - - -- - - -- - - - - - -- - - -- - -
My employer's address is: - - - - -- - - - -- - - - - - -- - -- - - - -
My employer's phone number is: - - - -- - - - -- - - - - - -- - - -- - -
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ _ _ _ __
8. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ! ~ li
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'
Rent/House Payment $ per month Med icai/Dental $ _ _ ___ per month
Groceries $ per month Telephone $ _ __ _ _ per month
Electricity $ per month School Supplies $ _ _ _ _ _ per month
Water $ per month Clothing $ _ _ _ _ _ per month
Gas $ per month Child Care $ _ _ _ _ _ per month
Transportation $ per month Child Support $ _ _ _ _ _ per month
Car $ per month
Other $ per month (describe:
10. Assets:
Automobile $ _ _ _ __
(FMV) - - - - - - - - - -
Checking/Savings Acct. $ _ _ _ __
House $ _ _ __
(FMV) - - - - - - - - - -
Other $ _ _ _ __ Describe:_ _ _ _ __ _ __ __
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
____ dayof _____________________ , 20_ __
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ _ __
LB-1108 (REV 11/15) RDA 11082