Byrd, Michael Harlan v. General Motors

FILED
Feb 07, 2022
10:38 AM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
MICHAEL HARLAN BYRD, ) Docket No.: 2019-05-0430
Employee, )
)
v. ) State File No. 64385-2016
)
GENERAL MOTORS, )
Self-Insured Employer ) Judge Thomas Wyatt
EXPEDITED HEARING ORDER DENYING BENEFITS
At an Expedited Hearing on February 2, 2022, Michael Harlan Byrd sought
treatment and temporary disability benefits for a back condition allegedly related to his
compensable ankle injury. General Motors argued that Mr. Byrd’s back condition did not
arise primarily from employment because it was degenerative and pre-existed the ankle
injury. For the reasons below, the Court denies the requested benefits at this time.
History of Claim
Mr. Byrd fell at home while recuperating from a compensable left-ankle injury. He
testified it happened between January 22 and February 28, 2018. He alleged that he injured
his left shoulder, left elbow, and back in the fall. At the time of the fall, Mr. Byrd received
authorized ankle treatment from Dr. Ronald Derr.
After a visit on February 28, 2018, Dr. Derr noted Mr. Byrd’s fall without mention
of related injury. During the next visit, on April 4, Dr. Derr noted that Mr. Byrd reported
shoulder pain related to the fall. The note did not mention back pain. Dr. Derr referred
Mr. Byrd to Dr. Christopher Stark and wrote, “I feel that his shoulder is related to his foot,
due to the fact that the ankle and the foot injury made him fall.” General Motors accepted
the referral, but a delay occurred in Mr. Byrd seeing Dr. Stark.
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During Dr. Derr’s continued ankle treatment, he noted on June 6, 2018, that Mr.
Byrd was seeing a chiropractor, Dr. Alfred Farrier, for spinal pain. Dr. Derr’s only
comment about treatment of the back was, “He should continue with chiropractic care for
his compensatory issues.”
In August 2018, Mr. Byrd was diagnosed with a spinal infection. Orthopedist Dr.
Erion Qamirani performed two surgeries for the infection. Mr. Byrd remained in the
hospital ten days after the surgeries. He testified that the infection was not work-related.
After recovering from spine surgery, Mr. Byrd finally saw Dr. Stark on September
26, 2018, to comply with Dr. Derr’s referral. Dr. Stark noted Mr. Byrd’s report of injuring
his left shoulder and elbow after falling at home due to ankle pain. Dr. Stark did not record
a history of back pain, either from the fall or otherwise. 1 However, Dr. Stark did note
unspecified neurological weakness on physical examination.
At some point, Mr. Byrd asked General Motors to provide medical and disability
benefits for his back. He argued that his ongoing back problems related to either the fall
at home or a gait disorder caused by his compensable ankle injury. General Motors
authorized Dr. John Klekamp to see Mr. Byrd for his spine.
In November 2019, Dr. Klekamp performed a physical examination, took a history,
and reviewed medical records. He concluded that “there is a 45% chance that [Mr. Byrd’s
spine condition] is related to his previous fall.” He added, “I cannot relate the current
ongoing mid and low back pain causation to the fall.” He cited Mr. Byrd’s history of
chronic back pain and the physicians’ failure to document back complaints in the weeks
after the fall.2 General Motors denied the back claim after receiving Dr. Klekamp’s
causation opinion.
Mr. Byrd filed a Petition for Benefit Determination and later requested this hearing
to seek medical and temporary disability benefits for his back.
In support of his position, Mr. Byrd obtained signed causation letters from Drs.
Farrier and Qamirani. The chiropractor related Mr. Byrd’s thoracic pain to the fall and his
lumbar pain to a gait disorder resulting from the left-ankle injury. He wrote, “[T]he ankle
injury has been the cause of [his] problems . . . seeing as there was no problem prior to the
ankle injury.” Dr. Qamirani wrote a short causation letter that included the following
opinion: “[M]ore likely than not Mr. Byrd’s ankle injury at work resulted in more than 51%
. . . of his thoracic and lumbar spine degenerative disc disease and symptoms.”
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Mr. Byrd testified he told Dr. Stark that he injured his back in the fall.
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Mr. Byrd testified he had previous back pain more than ten years ago, and it had resolved.
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General Motors then obtained a sworn declaration in which Dr. Qamirani changed
his opinion. He testified that Mr. Byrd did not relate his back pain to a fall or an altered
gait while active treatment continued. He stated Mr. Byrd gave that history more than a
year later, when asking for the causation letter.
Dr. Qamirani explained that Mr. Byrd had degenerative disc disease in his spine that
was not caused by a fall or altered gait. However, the spinal symptoms Mr. Byrd
experienced between the dates of the fall and the first surgery “may have been due to an
aggravation of his underlying degenerative disc disease as a result of his altered gait or
alleged fall.”3 However, Dr. Qamirani stated that, after surgery, “[I]t became impossible
for me to differentiate between the possible causes of Mr. Byrd’s pain complaints.” “[I]t
is just as likely that his continued symptoms in his thoracic and lumbar spine[s] arose
primarily out of the natural consequences of his spinal surgery.”
Mr. Byrd argued that Dr. Qamirani’s declaration is suspect because it was given
after General Motors “contacted him.” He stated he knows why Dr. Qamirani changed his
opinion but did not explain.
Regarding temporary disability benefits, Mr. Byrd testified he attempted to return
to work at General Motors but was physically unable to do the work. He has worked
several jobs since his injury but cannot perform work as strenuous as he previously could.
Mr. Byrd did not provide the dates he missed work after the termination of temporary
benefits.
Findings of Fact and Conclusions of Law
To recover, Mr. Byrd must present sufficient evidence to show that he will likely
prevail at a hearing on the merits that his spinal condition, its treatment, and any resulting
disability arose primarily out of and in the course and scope of employment. Tenn. Code
Ann. § 50-6-239(d)(1) (2021). “An injury ‘arises primarily out of and in the course of
employment’ only if it has been shown to a reasonable degree of medical certainty that it
contributed more than fifty percent (50%) in causing death, disablement or need for
medical treatment, considering all causes.” “‘Shown to a reasonable degree of medical
certainty’ means that, in the opinion of the 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).
Here, the issue is whether Mr. Byrd’s back condition is work-related. Three
providers gave opinions on this question. Dr. Klekamp concluded that the work injury did
not account for more than fifty percent of Mr. Byrd’s pre-existing back condition. He cited
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Mr. Byrd received temporary disability benefits from the date of the fall and the date of Dr. Qamirani’s
surgery because he was off work for his ankle during that period.
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the fact that the providers who treated Mr. Byrd in the weeks after the fall did not note that
he complained of back pain at that time.
Dr. Farrier stated that Mr. Byrd’s fall caused his thoracic pain, and a gait disorder
from his compensable left-ankle injury caused his lumbar pain. He relied on the fact that
Mr. Byrd did not have back pain before he injured his ankle.
While Dr. Qamirani initially supported Mr. Byrd’s position, he later changed his
opinion. He noted that, at the time of his treatment, Mr. Byrd did not relate his back pain
to a fall or a gait disorder. Further, Mr. Byrd did not relate his back pain and his ankle
injury to Dr. Qamirani until a year after surgery.
Dr. Qamirani also stated that the fall or gait disorder did not cause Mr. Byrd’s
degenerative conditions. He did say that the back pain Mr. Byrd endured up to the date of
spinal surgery “may have been” due to the fall or a gait alteration. However, after the
surgery, Dr. Qamirani concluded that it was impossible for him to attribute Mr. Byrd’s pain
to any specific cause.
When faced with competing expert opinions, the Court can consider, among other
things, the qualifications of the experts, the circumstances of their examinations, and the
information available to them in reaching their opinions. Lamb v. KARM Thrift Stores,
LLC, 2017 TN Wrk. Comp. App. Bd. LEXIS 212, at *7 (Jul. 26, 2017). Here, analysis of
the pertinent factors leads to the conclusion that the opinions of Dr. Qamirani best assist
the Court in resolving the issue of whether Mr. Byrd proved the work-relatedness of his
spinal condition. Dr. Qamirani’s long treatment of Mr. Byrd’s spinal symptoms, including
surgery, places him in the best position to address causation.
Dr. Qamirani’s opinions compel the Court to hold that Mr. Byrd failed to carry his
burden of proving a likelihood of prevailing at trial in proving the work-relatedness of his
spinal injury. At best, Dr. Qamirani stated that Mr. Byrd’s fall and gait disorder “may have
been” aggravated by his pre-existing spinal condition. This measure of proof is insufficient
to meet the statutory requirement to provide expert medical testimony that rises above
speculation or possibility. See Tenn. Code Ann. § 50-6-102(14)(D).4
Having not met his burden of proof, Mr. Byrd cannot recover medical or temporary
disability benefits for his back condition.
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The Court also finds that Dr. Derr’s description of Mr. Byrd’s back pain as “contributory” fails to satisfy
the necessary standard of proof for a finding that his back pain is work-related.
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IT IS, THEREFORE, ORDERED as follows:
1. The Court denies Mr. Byrd’s requested benefits at this time.
2. A Status Hearing is set at 10:30 a.m. Eastern Time/9:30 a.m. Central Time on
May 23, 2022. The parties shall call 855-747-1721 (toll-free) or 615-741-3061 to
participate in the hearing. Failure to call may result in a determination of the issues
without the absent party’s input.
ENTERED February 7, 2022.
_____________________________________
Judge Thomas Wyatt
Court of Workers’ Compensation Claims
APPENDIX
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Transfer Order
4. Request for Expedited Hearing
5. Employer’s Response to Request for Expedited Hearing
6. Employer’s Notice of Filing
Exhibits:
1. Rule 72 Declaration of Michael Harlan Byrd with attached chronology
2. Letter signed by Chiropractor Alfred J. Farrier
3. Letter signed by Dr. Erion Qamirani
4. Report of Dr. Ronald Derr
5. Records of Dr. Christopher Stark
6. Copies of radiological films (sustained objection for lack of foundation)
7. Article from Sharing Mayo Clinic (sustained objection for lack of foundation)
8. Amended Rule 72 Declaration of Dr. Erion Qamirani
9. Rule 72 Declaration of Tina Fodo
10. Compilation of medical records submitted by General Motors
 Records signed by Dr. Charles Lee
 Records of Dr. Ronald Derr
 Records of Maury Regional Hospital (Dr. Qamirani)
 Records of Dr. Christopher Stark
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11. Order Approving Settlement Agreement
12. Wage Statement
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on February 7, 2022.
Name First Class Email Service sent to:
Mail
Michael Harlan Byrd X X icemanspecops@yahoo.com
Employee P.O. Box 252
Elkton, TN 38455
Nathaniel Cherry X ncherry@howardtatelaw.com
Employer’s Attorney
______________________________________
Penny Shrum, Court Clerk
Wc.courtclerk@tn.gov
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