Thomas, Alisha v. Federal Express Corp. , 2020 TN WC 27 ( 2020 )

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. CoO., ) 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.”
After the settlement, Ms. Thomas did not return to work as of September 25 and
timely filed the PBD at issue.' 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.”
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
[ICD] 10" 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 ICD 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
' Her attorney at the time later withdrew from the case.
* 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.
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).
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. 02801-9607-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;
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 .
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.
> 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.
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).
Federal Express shall continue to pay reasonable and necessary future medical
expenses as required by the settlement agreement of March 2, 2017, under
Tennessee Code Annotated section 50-6-204(a)(1)(A).
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.
. Ms. Thomas may file a motion for discretionary costs incurred in prosecuting her
claim.
. 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.
fe
ENTERED February 19, 2020.
APPENDIX
Exhibits:
Dr. Dale Foster Neuropsychological Evaluation
Dr. David Goldstein Psychological Evaluation
Deposition of Dr. Melvin Goldin (April 27, 2018)
Deposition of Dr. Melvin Goldin (April 26, 2019)
Deposition of Dr. Mark Webb
Medical Records of St. Francis Hospital
Photographs of Ms. Thomas’s head
Opinion letter of Dr. Alan Nadel
9. Affidavit of Dr. Mark Green
10. Text of International Classification of Diseases, 10" ed., Chapter 5
11.4MA Guides, Chapter 14, Section 1, pp. 348-349
12.AMA 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.
SIAARWNS
Technical record:
Petition for Benefit Determination (May 4, 2018)
Dispute Certification Notice (July 11, 2018)
Request for Scheduling Hearing
Scheduling Order
Motion to Amend Scheduling Order
Employee’s Response to Employer’s Motion to Amend Scheduling Order
Order Granting Motion to Amend and Amended Scheduling Order
Second Motion to Amend Scheduling Order
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
Pen ewe Bee
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
/) { /
Z “Syne dtr
Penny(Shrum, Court Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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: “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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
wiww.tn.pov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of Injury:
Employee
Vv.
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):
0 Expedited Hearing Order filed on 0 Motion Order filed on
CO Compensation Order filed on 0 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): [I 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 | 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
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
, having been duly sworn according to law, make oath that
because of my poverty, | 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:
3. Telephone Number:
5. Names and Ages of All Dependents:
6. lam employed by:
2. Address:
4. Date of Birth:
Relationship:
Relationship:
Relationship:
Relationship:
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. | receive or expect to receive money from the following sources:
AFDC $
SSI $
Retirement $
Disability $
Unemployment $
Worker's Comp.$
Other $
LB-1108 (REV 11/15)
per month
per month
per month
per month
per month
per month
per month
beginning
beginning
beginning
beginning
beginning
beginning
beginning
RDA 11082
9. My expenses are:
Rent/House Payment $
Groceries $
Electricity
Water
Gas
Car
Other
10. Assets:
Automobile
Checking/Savings Acct. $
House
Other
11. My debts are:
Amount Owed
$
$
$_
Transportation $
5
$
permonth Medical/Dental $
per month Telephone 3
per month School Supplies $
per month Clothing $
per month Child Care $
per month Child Support $
per month
per month (describe:
(FMV)
(FMV)
Describe:
To Whom
per month
per month
per month
per month
per month
per month
! hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that | 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