Lara, Israel v. Progress Rail Services, Corp. ( 2019 )

FILED
Sep 18, 2019
10:09 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT GRAY
ISRAEL LARA, ) Docket No. 2016-02-0501
Employee, )
v. )
PROGRESS RAIL SERVICES, ) State File No. 94197-2015
CORP., )
Employer, )
And ) Judge Brian K. Addington
LIBERTY MUTUAL, )
Carrier. )
COMPENSATION HEARING ORDER
GRANTING SUMMARY JUDGMENT
This case came before the Court on September 16, 2019, upon the Motion for
Summary Judgment filed by Progress Rail Services. Progress asserted as undisputed fact
that Mr. Lara did not suffer an injury that would entitle him to medical, temporary, or
permanent benefits. For the reasons below, the Court finds Progress is entitled to
summary judgment.
Claim History
Mr. Lara alleged a back injury in November 2015. He underwent authorized
treatment with an urgent-care provider, a pain specialist, and Dr. James Brasfield, a
neurosurgeon. He missed five days of work due to an excuse from the urgent-care
provider. Dr. Brasfield ran numerous tests and found Mr. Lara suffered degenerative,
chronic conditions. He placed Mr. Lara at maximum medical improvement on March 16,
2018, despite Mr. Lara's continued pain complaints and found he suffered no permanent
impairment.
Because of those complaints, Progress supplied a second-opinion with Dr. Travis
Burt, who agreed with Dr. Brasfield that Mr. Lara suffered no permanent impairment. He
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also found that Mr. Lara's current need for treatment was not related to the November
2015 incident.
Procedural History
Mr. Lara requested an expedited hearing after Progress refused to provide
additional benefits. Following the hearing, the Court found that Mr. Lara was not likely
to succeed at a hearing on the merits in proving the need for further medical treatment
because no physician stated his current complaints were related to the alleged injury. The
Court also found he was not likely to succeed in proving entitlement to temporary total
disability benefits because he only missed five days of work.
Mr. Lara appealed the Court's decision to the Tennessee Workers' Compensation
Appeals Board, which affirmed the Court's decision on July 18, 2019. On August 9,
2019, Progress filed its motion.
In support of its motion, Progress filed a Statement of Undisputed Material Facts
showing: Mr. Lara only missed five days of work; he was at maximum medical
improvement; he had a zero-percent impairment rating; and Dr. Travis Burt determined
that his current complaints were not related to his November 2015 injury. Mr. Lara did
not respond. Thus, these facts are deemed undisputed under Tennessee Rule of Civil
Procedure 56.03.
At the motion hearing, Mr. Lara asserted that he still suffers daily pain and should
be allowed to see a physician that neither he nor the employer would pay to determine the
extent of his injury. Progress argued that the undisputed facts show it is entitled to
summary judgment.
Analysis
Concerning the benefits in question, an employer is required to provide medical
treatment made reasonably necessary to an accident of work. Tenn. Code Ann. § 50-6-
204(a)(l)(A) (2018). An employee is entitled to temporary total disability benefits if a
work injury causes disability lasting more than seven days. Tenn. Code Ann. § 50-6-
206(a)(l). An employee is entitled to permanent partial disability benefits if he is
permanently, partially disabled as a result of a work injury. Tenn. Code Ann. § 50-6-
207(3)(a).
Progress is entitled to summary judgment as a matter of law on the issues of
medical, temporary, and permanent benefits if the record before the Court establishes
there are no genuine issues as to material facts. See Tenn. Code Ann. § 20-16-101, et
seq.; Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 265 (Tenn. 2015).
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Here, the undisputed facts establish that: Mr. Lara's current need for treatment is
not related to his alleged November 2015 injury; he missed only five days of work; and
he is at maximum medical improvement and received a zero-percent impairment rating.
While the Court is sympathetic to Mr. Lara's continued complaints, they are insufficient
to defend against Progress's motion, as he presented no medical opinion to rebut the
physicians' opinions contained in the record.
Having carefully reviewed and considered the evidence in the light most favorable
to Mr. Lara, the Court finds Progress has demonstrated that Mr. Lara's evidence is
insufficient to establish a genuine issue of material fact as to the entitlement of medical,
temporary, or permanent benefits.
IT IS, THEREFORE, ORDERED that:
1. Progress's Motion for Summary Judgment is granted, and Mr. Lara's claim is
dismissed on the merits with prejudice to its refiling.
2. The filing fee of $150.00 is taxed to Progress under Tennessee Compilation Rules
and Regulations 0800-02-21-.06 for which execution may issue as necessary.
3. Progress shall prepare and submit the SD2 to the Court Clerk within ten days of
the date of judgment.
4. Absent an appeal, this order shall become final in thirty days.
ENTERED September 18, 2019.
/SI Brian K. Addington
BRIAN K. ADDINGTON, JUDGE
Court of Workers' Compensation Claims
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CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on September 18, 2019.
Name Certified Fax Email Service sent to:
Mail
Israel Lara, x x napomusono08@hotmail.com
Employee
Eric Shen, x eric.shen@libertymutual.com
Employer's Attorney shelby .hale~libertymutual.com
PENNY SHRUM, COURT CLERK
\VC.courtclerk(@tn.gov
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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 of the 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 Indigency 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.
COMPENSATION HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www.tn.gov/labor-wfd/wcomp.shtml
wc.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
v.
Employer
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals Board.
[List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
List of Parties
Appellant (Requesting Party): ___At Hearing: ☐Employer ☐Employee
Address:
Party’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
LB-1103 rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: ____________________________________ SF#: ________________________________ DOI: __________________
Appellee(s)
Appellee (Opposing Party):____________________At Hearing: ☐Employer ☐Employee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that I have forwarded a true and exact copy of this
Compensation Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all
parties and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee
Rules of Board of Workers’ Compensation Appeals on this the day of , 20 .
[Signature of appellant or attorney for appellant]
Attention: This form should only be used when filing an appeal to the Workers’ Compensation Appeals
Board. If you wish to appeal a case to the Tennessee Supreme Court, please utilize the form provided by
the Court which can be found on their website at the following address:
http://www.tncourts.gov/sites/default/files/docs/notice_of_appeal_-_civil_or_criminal.pdf
LB-1103 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-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 Comp.$ ________ per month beginning
Other $ ________ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are:
Rent/House Payment $ ________ per month Medical/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
_______ day of , 20_______.
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082