Trent Steven Griffin v. American Zurich Insurance Company ( 2015 )

FiLED IN
5TH COURT OF APPEALS
I5 fPR 2g PH g: gO
CAUSE NO. QS-14-O151O-CV
LISA &‘STZ. CIR<
IN THE
FIFTH COURT OF APPEALS
DALLAS, TEXAS
TRENTS. GRIFFIN
Appellant,
V.
AMERICAN ZURICH INSURANCE COMPANY
Appellee.
On appeal from the
101st District Court of
Dallas County, Texas
APPELLANT’S BRIEF
Trent S. Griffin, Sr.
724 Meandering Dr.
Cedar Hill, Texas 75104
Tel. 469-337-0598
TRENT S. GRIFFIN, SR., PRO SE
APPELLANT
CAUSE ND. 05-14-01510-CV
TRENT S. GRIFFIN, SR.
Appellant,
V.
American Zurich Insurance Company,
Appellee.
I. IDENTITY OF PARTIES AND COUNSEL
1. Trent S. Griffin, Appellant, Pro se
724 Meandering Drive
Cedar Hill, Texas 75104
Tel. 469-337-0598
2. American Zurich Insurance Company, Appellee
Corporation Service Company
211 East 7th Street, 44 620
Austin, Texas 78701-3218
3. THE SILVERA FIRM
Attorney Todd Richards, Appellee’s Counsel
1015 Providence Towers East
5001 Spring Valley Road
Dallas, Texas 75244
Tel. 972-715-1750
Fax 972-715-1759
DSILVERA@SILVERALAW.COM
II. TABLE OF CONTENTS
Page
I. Identity of Parties and Counsel
II. Table of Contents ii
Ill. Index and Authorities iv
IV. Statement of Case 1
V. Statement Regarding Oral Argument 2
VI. Issues Presented 3
VII. Statement of Facts 4
VIII. Summary of Argument 9
IX. Argument 10
A. A “no evidence” partial summary judgment was granted
without notice of hearing or submission date of a summary
judgment motion by the court or appellee 10
B. A “no evidence” partial summary judgment was granted
prematurely before close of discovery pursuant Rule 190.3
(level 2) ordered by Judge Martin Lowy 10
C. A traditional summary judgment was granted without
notice of the hearing or submission date of a summary
judgment motion by the court or appelle 10
D. A traditional summary judgment was granted prematurely
before the close of discovery pursuant Rule 190.3 (level 2)
ordered by Judge Martin Lowy 15
E. Appellant was deprived of any right to seek leave to file
affidavits or other written response 10
II
F. Trial court abused its discretion failing to draw every possible
inference favorable for appellant on its merits of the claims
and try each issue of fact and law in the manner that applies
to other civil suits before granting summary judgment 10
C. Appelle failed to conclusively negate all elements of the
appellant’s claims to raise a genuine issue of material fact
as a matter of law 10
H. Trial court erred in granting summary judgment, by
allowing appellee to file into record inadmissable
evidence, ie. expert testimony, peer review and state
action or nature of that action 15
I. Trial court abuse its discretion, failing to follow Texas Labor
Codes and Government Codes 15
J. Trial court abused its discretion granting a “no evidence”
partial summary judgment and summary judgment without
finding of facts and conclusion of law 15
X. Prayer 19
Xl. Appendix attached 21
III
III. INDEX AND AUTHORITIES
Page
Cases
Allen v. A & T Transp. Co. Inc., 79 S.W.3d 65, 68
(Tex. App.---Texarkana 2002, pet. denied) 13
Alexander v. Lockheed Martin Corporation, 188 S.W.3d 348
(Tex. App.---Forth Worth 2006, pet. denied) 12
Bado Equipment Co., Inc. v. Ryder Truck Lines, 612 S.W.2d
81, 83 (Civ. App.---Houston [14th Dist.] 1981, n.r.e.) 14
Barraza v. Eureka Co., 25 S.W.3d 225, 231
(Tex. App.---EI Paso 2003, no pet.) 11
Continental Casualty Insurance Insurance Company v.
Williamson, 971 S.W.2d 108 (Tex. App.---Tyler 1998, no pet.) 12
Dewoody v. Rippley, 951 S.W.2d 935, 943-944
(Tex. App.---Forth Worth 1997, dis. agr.) 14
Dickson v. State Farm Lloyds, 944 S.W.2d 666, 667
(Tex. App.---Corpus Christi 1997, no writ) 14
Garcia v. Peeples, 734 S.W.2d 343, 347 (Tex. 1987) 15
Guevara v. Ferrer, 247 S.W.3d 662 (2007) 15,16
Harrill v. A.i. ¶s Wrecker Service, Inc., 27 S.W.3d 191, 193-194
(Tex. App.---DaIIas 2000, pet. dism’d w.o.j.) 11
Hildago v. Surety Savings and Loan Association, 462 S.W.2d
540, 543 n.1 (Tex. 1971) 14
In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) 15
Japole v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984) 15
Jeter v. McGraw, 79 S.W.3d 211, 214
(Tex. App.---Beaumont 2002, pet. denied) 11,13
Iv
Krueger v. Atascosa County, 155 S.W.3d 614
(Tex. App.---San Antonio 2004, no pet.) 12
Lopez v. Zenith Insurance Company, 229 S.W.3d 775
(Tex. App.---Eastland 2007, pet. denied 12
MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986) 11
Mart. v. Martin, Martin & Richards, Inc., 989 5.W.2d 357, 359
(Tex. 1998) 13
May v. Nacoqdoches Memorial Hosp., 61 S.W.3d 623, 626-627
(Tex. App.---Tyler 2002, no pet 13
McGiIliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986) 15
Nowak’v. DAS mv. Corp., 110 S.W.3d 677, 680
(Tex. App. [14th Dist.] 2003, no pet.) 11
Nixon Mr. Property Management 690 S.W.2d 546, 548
b’.
(Tex. 1985) 11
Okoli v. Texas Dept. of Human Services, 117 S.W.3d 477, 479
(Tex. App.---Texarkana 2003, no pet.) 13
Rios v. Texas Bank, 948 S.W.2d 30, 32-33, n.4
(Tex. App.---Houston [14th Dist.] 1997, no writ) 13
Science Spectrum, Inc. v. Martinez, 941 5.W.2d 910, 911
(Tex. 1997) 13
Smithkline Beecham Corp. v. Doe, 903 S.W.2d 347, 355
(Tex 1995) 14
The Ryland Group, Inc v. Hood, 924 S.W.2d 120, 122
(Tex. 1996) 17
Tom L. Scott, Inc. v. Mcllhany, 798 S.W.2d 556, 559
(Tex. 1990) 15
Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 338
(Tex. 1998) 15
V
Walker tc Packer, 827 S.W.2d 833, 842 (Tex. 1992). 15
William v. Glash, 789 S.W.2d 261, 264 (Tex. 1990) 11
Zurich American Insurance Company v. Gill, 173 S.W.3d 878
(Tex. App.---Forth Worth 2005, pet. denied) 12
Appeals Panel Decisions
APPEAL NO. 94224 12,18
APPEALS NO. 002920 12,18
APPEALS NO. 020375 12
APPEALS NO. 032608 16
APPEALS ND. 032668 17
APPEALS NO.051656 unused
APPEALS NO. 080730 12,17,18
APPEALS NO. 111710 18,19
APPEALS NO. 120253 15,16,18
APPEALS NO. 120383 16,18
APPEALS NO. 130808 18
Statutes
GOVT CODE 2001.173 etseq 10,14
TEX. ADMIN. CODE 124.1(a) 12
TEX. ADMIN. CODE 124.3(a)(1), (a)(2),(c)(2) 12
TEX. LAB. CODE 401.001 et esq 10-19
TEX. LAB. CODE 408.001 etseq 10-19
vi
TEX. LAB. CODE 409.001 et seq .12,17,18
TEX. LAB. CODE 410.002 etseq 10-19
Rules
TEX. R. CIV. P. 21a 12,13
TEX. R. CIV. p. 145 5
TEX. R. CIV. P. 166a 10,
TEX. R. CIV. P. 166a(c) 10,11,14
TEX. R. CIV. P. 166a(g) 13
TEX. R. CIV. P. 166a(i) 10,
TEX. R. CIV. P. 185 14
IV. STATEMENT OF CASE
Appellant, Trent S. Griffin, prose files this appellant’s brief for a
decision and final judgment of the trial court. The case explicitly involved a
Trial De Novo Review of a work injury sustained by the appellant and the
decision of the Texas Department of Insurance, Division of Workers’
Compensation, hereafter referred to in this appellant’s brief as the
“Agency” and, American Zurich Insurance Company, Appellee. Appellant
sought trial de novo review of the decision. Appellant initially filed his suit
against American Zurich Insurance Company and the “Agency.” Ergo, the
trial court dismissed the claim against the agency for lack of subject-matter
jurisdiction or plea to jurisdiction. Moreover, appellant’s claims sought for
extent of injury which included a 5mm left paramedian protrusion
(herniated disc), cervical radiculitis/radiculopathy and not at maximum
medical improvement. Appellee American Zurich Insurance Company filed a
general denial, disputing the extent of injury and denied all alleged facts.
Moreover,the insurance carrier presented a defense comprised of the
agency’s process and decision, with the affirmed decision of the Appeals
Panel that failed to act on a decision and order of the agency when the
Appellee waived its rights to contest compensability of work injury that was
accepted as compensable.This was presented to the Appeals Panel.
The trial court disposed of the Appellant’s claims by a “no evidence”
partial summary judgment and traditional summary judgment. Trial court
abused its discretion in its decision by failing to be a finder of fact and
conclusion of law, as a matter of law based on the merits of the case and
1
other civil cases similar in nature and operative facts. Trial court abused its
discretion by failing to draw all inferences in favor of the appellant before
granting summary judgment. Appellee failed to negate all elements of the
appellant’s claims. Additionally, the trial court allowed inadmissable
evidence and testimony presented in the agency’s decision, ergo abusing its
discretion. Furthermore, trial court abused its discretion by not following
the Texas Labor Codes and laws, and Government Codes in review of the
erroneous decision by the agency. Moreover, trial court deprived the
appellant Trent S. Griffin of any opportunity to present summary judgment
evidence, affidavits or response to the movants “no evidence” summary
judgment. Upon receipt of a decision against the Appellant, immediately a
request for finding of fact and conclusion of law was presented to the trial
court. Following the request, Appellant submitted a motion for new trial
and an affidavit and any defects were not deliberate or intentional, but that
of inadvertance, mistake or mischance.
V. STATEMENT REGARDING ORAL ARGUMENT
Appellant states it is not necessary for any oral arguments. This
case is not a difficult case to decide based on the Texas Labor Codes and
laws, the timing and proximate cause of the injury, the facts that are
alleged in the appellant’s brief and clerks records. If the Court find it
necessary for the appellant to appear for oral argument to explain or
present oral argument, the Appellant is more than willing and able. The
Clerk’s record and this brief is sufficient in application of finding of facts and
2
conclusion of law to satisfy judgment in favor of the appellant.
VI. ISSUES PRESENTED
Appellant presents the following issues associated with this case.
This case involved liability and compensability issues which include, timely
contest by Insurance Carrier(IC), Date of Injury (DCI), compensability!
injury (existence), and Extent of Injury (EOI), Income Benefit (IB), Medical
Benefits (MB), Procedural, Spinal, Wage, Maximum Medical Improvement
(MMI), and Impairment Rating (IR) Issues The trial court abused its
.
discretion from the initial filing of the complaint. The appellant filed an
affidavit and complaint simultaneously allowing for service of process to
the Appellee and agency in accordance with Texas Rules of Civil Procedures.
The Agency appeared and Appellee was a no show, as it were in the Benefit
Review Conference. The Appellee failed to present an affirmative defense
against all elements of the appellant’s claims. The trial court erred by not
enforcing or allowing for a signed uniform scheduling order for mediation.
Additonally, trial court abused its discretion favorable to the Appellee in
discovery, and not allowing an opportunity for discovery for the Appellant.
Trial court abused its discretion by allowing inadmissable evidence, ie. peer
review, without a request from Agency for newly discovered evidence that
was presented after waiving its rights to contest a compensable injury and
expert testimony. Additionally, the trial court erroneously granted a “no
evidence” partial summary judgment and summary judgment in favor of
the appellee without drawing every inference favorable for the Appellant.
3
Further, the Appellee and the trial court failed to notice the Appellant of a
notice of hearing date or notice of submission for summary judgment
hearing date. Furthermore, the granting of the “no evidence” partial
summary judgment and summary judgment deprived the Appellant of
any rights to submit affidavits or a response to present a genuine issue of
material fact or present summary judgment evidence. Moreover, the
trial court erred by not following the Texas Labor Codes and laws, and
Government Code in a [tjrial de novo review. Trial court abused its
discretion, failing to draw inferences for finding of facts and conclusion of
law in favor of the non-movant. The Appellant’s complaint and all alleged
facts were to be considered as true, but the trial court erred by granting a
“no evidence” partial summary judgment and summary judgment that
failed to negate all the elements of each of the Appellant’s claims. Appellee
has avoided liablility of the Appellant’s injury for nearly three(3) years, since
the late filing of the notice of refused/disputed claim by the insurance
carrier, American Zurich Insurance Company.
VII. STATEMENT OF FACTS
On May 29th, 2013 Appellant filed his original petition
simultaneously submitting an affidavit of indigency [CR 5-14,18-20]. This
affidavit was submitted due to the inability to pay. A letter was received
contesting the inability to pay, noting the Appellant will be notified of a
hearing date [CR 21]. On June 28, 2013 , clearly more than twenty days, the
Agency filed an affirmative defense plea of jurisdiction for sovereign
4
immunity. On July 22, 2013, a plea to jurisdiction was filed by the Agency
and a hearing date for submission was set for July 26th, 2013 [CR 28]. An
order was singed on July 26th, 2015 granting the agency plea of jurisdiction
and dismissing the appellant’s case against the agency [CR 30]. Ergo, the
Appellant was not afforded an opportunity to present any material facts or
genuine issues because the appellant was informed there was no need to
wait until this afternoon. Judge Martin Lowy intended to rule against the
Appellant [RR 1-6]. Moreover, Appellee was a no show, and Judge Martin
Lowy informed Appellant, “there was improper service upon the Appellee
“[RR 4]. Inherently, when an affidavit is filed, the clerk must docket the
action, issue citation and provide such other customary services as are
provided any party Yet, there was a representative in the court for
Appellee and the Agency received service. It was apparent, Judge Martin
Lowy had demonstrated abuse of discretion. On August 22, 2013, Appellee
filed an answer to the Appellant’s original complaint filed on May 29, 2013
[CR 31-32]. Appellee’s original answer failed to raise a genuine dispute and
material of fact to be granted a “no evidence” partial summary judgment
and summary judgment. Ergo, the Appellant’s original complaint was filed
pursuant “[t]rial de novo review” that prohibits the admission into
evidence prior state agency action or the nature of the action [CR 5]. In
Appellant’s original complaint, he alleged facts that pertained to his work
injury. On February 21, 2012, appellant sustained an injury to the neck and
shoulder while performing duties and responsibilities as a Pharmacy
Manager and Staff Pharmacist for Walgreens Company [CR 6]. On February
5
22, 2012, the appellant contacted the employer and the agency about the
work related injury [CR 6]. On February 23, 2012, the appellant sought
medical attention from a workers’ compensation network doctor at the
discretion of the agency. On said date, appellant was diagnosed with
cervical radiculitis lCD-code 723.4, and 840.9 shoulder sprain and strain [CR
7]. Trial court erred in failing to identify the Appellee stated “defendant
accepted injury as compensable and initiated temporary income benefits
(TIBs) on February 22, 2012 [CR 15,16, 46 and 76]. Ergo, the time to dispute
the injury has begun to run against the Appellee. On March 29, 2012,
Appellant underwent a cervical MRI, identifying a 5mm left paramedian disc
protrusion compressing the ventral cord. On May 2, 2012, a peer review
was performed beyond the sixty (60) days allowed to investigate and
contest an injury [CR 7, 125-134] and “notice of disputed issue(s) and
refusal to pay benefits” renders this review irrevelant and inadmissable
pursuant “trial de novo” review and it does not apply to the appellant’s
cervical injury specifically [CR 76, 84]. The same holds true for expert
testimony of Richard Suss presented in paper form with a date of
November 26, 2012 and Martin Steiner expert testimony presented in
paper form dated October 19, 2012, that were introduced in the contested
case hearing without the ability to be cross examined by appellant [CR 84-
87, 113-114]. These were the exact same opinions introduced to the
agency. Trial court erred in allowing inadmissable evidence, or evidence
that presented impartiality and bias which did not follow the AMA Guides
4th Edition. According to the Range of Motion presented by Andrew Cole,
6
the Appellant had decrease cervical range of motion [CR 581. Plaintiff did
not have an injury prior to February 21, 2012. The Appellee did not present
any evidence to show the contrary, or establish the Appellant had a pre
existing injury. Alternatively, an injury includes aggravation of a pre-existing
injury, but the Appellant unequivocally know he has not had a prior injury.
Trial court erred in admitting into evidence Dr. Andrew Cole’s Maximum
Medical Improvement (MMI) and Impairment Rating (IR), that which he was
only tasked to perform [CR 53-62]. On June 26, 2012 appellee underwent a
MRI of the left shoulder, identifying supraspinatus distal tendon
attenuation and mild sub deltoid bursitis [CR 8]. On June 28, 2012, Dr.
Andrew Cole submitted an incomplete evaluation of the appeflant stating”
he was notified and failed to attend appointment on June 26, 2012”ld. That
statement is clearly untrue [CR 8, 57]. Trial court clearly erred in admitting
into evidence any and all evidence that was used in the the agency’s
decision, when the Appellant was deprived of any right to cross examine
each witness that presented testimony by paper form [CR 51-74]. It is a
clear abuse of discretion by the trial court because it failed to accept all
factual allegations as true and to draw all inferences in favor of the
Appellant before granting summary judgment. Additionally, it allowed
inadmissable evidence, ignored the pleading identifying violations of Texas
Labor Codes, laws and Government Codes, proximate cause of injury,
notification of first Temporary Income Benefits(TIB) payment, Notice of
Disputes and first report of injury to employer and insurance company,
diagnosis and supporting scientific evidence. The opinions of the expert
7
testimony clearly was not probative, but conclusory [CR 83-87]. Moreover,
TI
AMA Guides 4th Edition clearly define an impairment as any loss of
abnormality of psycological, physiological, or anatomical structure or
function.” More importantly, there are no other medical records to indicate
the appellant sustained a prior neck or shoulder injury. The fact remains a
compensable injury was sustained and the insurance carrier failed to
dispute the claimed injury. Appellant asserted the carrier waived its rights
to contest conpensability and stated it was presented to the Appeal Panel
referencing Decision No.080730 [CR 11,p.2].
On August 24, 2012, appellant was [fjully evaluated by a Dr. Andrew
Garrett. It was indicated in his Muscle Atrophy Evaluation, appellant had
more than “2 centimeters11 difference in circumference of the upper arm
indicating moderate and prolonged nerve impairment. Cervical radicu
lopathy is limited to atrophy greater than 2 cm or loss of relevant refelxes,
verified by EMG/NCS nerve study. Additionally, Dr Martin Steiner did not
review the report submitted by Dr Andrew Garrett. Dr. Steiner’s report is
nearly two (2) months later [CR 84]. It is clearly he was bias and prejudice in
his opinion[CR 84]. More importantly, Dr. Martin Steiner does not mention
at all about the “brachial plexus” which consist of CS to C8 nerves, where
the nerves come together to form median nerve which corresponds to Dr.
Edwin Green’s finding of Radiculopathy, left-mid [CR 8, 9]. On the other
hand, Dr. Andrew Cole report was not complete as stated in his report, if it
was admissable evidence [CR 150].
8
VIII. SUMMARY OF ARGUMENT
This case was based on whether the trial court erred in allowing a
“no” evidence partial summary judgment and summary judgment based on
inadmissable evidence, without providing notice of the hearing for
summary judgment, which deprived Trent S. Griffin of an opportunity to
present summary judgment evidence. Additionally, the case was based on
abuse of discretion by the trial court granting summary judgment without
drawing all inferences in favor of Trent S. Griffin before granting summary
judgment. It is very clear that summary judgment was premature or even
erroneous based on the meritorious pleading of the Trent S. Griffin.
Further, American Zurich Insurance Company did not present an affirmative
defense, which was based on the decision and actions of the Texas
Department of Insurance-Division of Workers’ Compensation here known
as the “Agency”, when there was “trial de novo” review of the case.
Furthermore, the trial court erred by not applying other civil cases that
were similar in nature before granting summary judgment. American Zurich
Insurance Company did not negate any of Trent S. Griffin’s claims in
producing inadmissable evidence. Even if the evidence was admissable,
American Zurich Insurance Company did not contest the compensability of
Trent S. Griffin’s work related injury it accepted as compensable that was
presented to the Appeals Panel and they failed to act on the decision and
order of the Agency.
9
IX. ARGUMENT
1. Granting of a “no evidence” partial summary judgment and summary
judgment without notice of the hearing or submission date of a summary
judgment by the Court or Appellee, deprived Appellant of rights, abused
discretion failing to draw favorable inferences, failed to negate one or
more elements of each claim, without finding of fact and conclusion of
law based on the merits of the case
On June 27, 2014, Appellee filed a “no-evidence” motion for
partial summary judgment, then thirty minutes later filed a traditional
summary judgment [CR 41-50, Tex. R. Civ. P. 166a(i), 166a]. Trial court
erred in granting a “no evidence” partial summary judgment and a
traditional summary judgment [CR 156,157] on the basis of “no evidence”
extent of injury beyond a cervical sprain/strain and left shoulder sprain/
strain [CR42] and statutory maximum medical improvement date of
February 26, 2014 [CR 47]. Appellant’s filing of the petition [v]acated a state
agency decision for which “trial de novo” is the manner of review [GoVt
Code 2001.176(b)(3)]. A trial court is empowered to grant a motion for
summary judgment and render judgment for the movant when it is
[c]onclusively shown that the moving party is entitled to judgment as a
matter of law. It must be satisfied that either (1) there are no genuine
issues of material fact and the movant’s summary judgment evidence
establishes entitlement to judgment as a matter of law or (2) there is no
evidence of one or more essential elements of a claim or defense on which
the adverse party has the burden of proof [Tex. R. Civ. P. 166a(c), (i)].
10
Grounds for summary judgment, the movant’s proof must conclusively
establish all elements of its cause of action as a matter of law [Tex. R. Civ. P.
166a(c); William v. Glash, 789 S.W.2d 261, 264 (Tex. 1990); Nixon v. Mr.
Property Management, 690 S.W.2d 546, 548 (Tex. 1985); Jeter v. McGraw,
79 S.W.3d 211, 214 (Tex. App.---Beaumont 2002, pet. denied); Also see
MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). The Supreme Court has
said that summary judgment procedure is not intended to deprive litigants
of their right to a full hearing on the merits on any real issue of fact; if there
is some doubt as to facts, summary judgment should not be rendered,
despite the desire for prompt disposal of judicial business. Moreover, a no-
evidence motion must challenge a specific element of the opponent’s case,
and therefore is not appropriate to raise a challenge based on an
affirmative defense on which it has the burden of proof see Nowak v. DAS
mv. Corp., 110 S.W.3d 677, 680 (Tex. App.---Houston [14th Dist.] 2003, no
pet.) (defendant improperly filed no-evidence motion on own affirmative
defense of limitations); Also see Barraza v. Eureka Co., 25 S.W.3d 225, 231
(Tex. App.---El Paso 2000, pet. denied) (party may not urge no-evidence
summary judgment on claims or defenses on which it has burden of proof);
Instead, the party asserting the defense has the burden of conclusively
proving the affirmative defense in order to gain summary judgment see
e.g., Harrill v. A.J. ‘s Wrecker Service, mc, 27 S.W.3d 191, 193-194 (Tex.
App.---Dallas 2000, pet. dism’d w.o.j.) (trial court erred in granting summary
judgment on no-evidence motion based on affirmative defense of
preemption); [CR 31, 42]. A traditional summary judgment, may not be
11
rendered based on the non-movant’s default. A response is not considered
necessary to defeat a traditional motion because deficiencies in the
movant’s own proof or legal theories might defeat the movant’s right to
judgment as a matter of law. Trial court erred by granting summary
judgment when the appellee waived its rights to contest the injury [Tex.
Lab. Code 409.021(c); APPEAL NO. 080730;]. Ergo, the movant is not
obliged to negate affirmative defenses raised by the defendant’s pleadings.
However, the movant’s proof itself may establish an affirmative defense,
such as the defense of limitation. In that case the movant must negate the
defense or in the appellant’s case, waiver of rights to contest
compensability of work injury expired after sixty (60) days after being
notified of the injury[APPEAL NO. 002920; Tex. Lab. Code section 409.021
(c); 124.3(c)(2); Alexander v. Lockheed Martin Corporation, 188 S.W.3d 348
(Tex. App.---Forth Worth 2006, pet. denied); Also see Continental Casualty
Insurance Company v. Williamson, 971 S.W.2d 108 (Tex. App.---Tyler 1998,
no pet.); section 401.011(26); Lopez v. Zenith Insurance Company, 229
S.W.3d 775 (Tex App.---Eastland 2007, pet. denied); Zurich American
Insurance Company v. Gill, 173 5.W.3d 878 (Tex. App.---Forth Worth 2005,
pet. denied)]. The appellee waived its rights to contest compensability of
the appellant’s work injury and it was raised before the appeals panel, ergo,
the trial court erred in granting summary judgment [ Krueger v. Atascosa
County, 155 S.W.3d 614 (Tex. App.---San Antonio 2004, no pet.);APPEALS
NO. 94224, 020375; CR 111.
The court must give notice of the hearing or submission date of a
12
summary judgment motion see Martin v. Martin, Martin & Richards, Inc.,
989 S.W.2d 357, 359 (Tex. 1998); Okoli v. Texas Dept of Human Services,
117 S.W.3d 477, 479 (Tex. App.---Texarkana 2003, no pet.) (notice by a
party that summary judgment would be presented to court was not noticed
of hearing date). Even though an actual hearing may not occur, because it is
within the trial judge’s discretion whether to hold a hearing, a hearing date
must be set and specified in a notice to the parties in order to set the filing
deadlines see Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357,
359 (Tex. 1998). Additionally, when a party is given no notice at all of a
summary judgment hearing or when a party is deprived of the right to seek
leave to file additional affidavits or other written response to the summary
judgment the party may preserve error in a post-trial motion see May v.
Nacogdoches Memorial Hosp., 61 S.W.3d 623, 626-627 (Tex. App.---Tyler
2001, no pet.) (when amended motion for summary judgment was served
two days before hearing, party had adequate time to file written objection
and waived right to object by failing to do so); Rios v. Texas Bank, 948
S.W.2d 30, 32-33, n.4 (Tex. App.---Houston [14th Dist.] 1997, no writ); Tex.
R. Civ. P. 166a(g).
A party resisting a claim may establish that no genuine issue of fact
exists, justifying a “take-nothing” judgment as a matter of law, by negating
at least one of the key elements of each of the claimant’s theories of
recovery see Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.
1997); AlIen v. A & T Transp. Co. Inc., 79 S.W.3d 65, 68 (Tex. App.-—
Texarkana 2002, pet.denied); Jeter v. McGraw, 79 S.W.3d 211, 214 (Tex.
13
App.---Beaumont 2002, pet. denied). Ergo, to prevail on a motion claiming
entitlement to summary judgment as a matter of law, the movant must
offer [a]dmissible evidence proving that no genuine issue of material fact
exists and that the movant is entitled to judgment as a matter of law on the
issues expressly set out in the motion or in an answer or any other
response to the motion Tex. R. Civ. P. 166a(c); Gov. Code, section 2001.173.
Additionally, a movant need not negate all conceivable theories on which
the claimant might recover, rather, the movant is only required to negate
the theories raised by the pleadings see Smithkline Beecham Corp. tic Doe,
903 S.W.2d 347, 355 (Tex. 1995) (claimant may defeat summary judgment
by raising issue of fact as to claim assertable under general language of
petition); Dickson v. State Farm Lloyds, 944 S.W.2d 666, 667 (Tex. App.---
Corpus Christi 1997, no writ); Also see Dewoody v. Rippley, 951 S.W.2d 935,
943-944 (Tex. App.---Forth Worth 1997, dis. agr.) ( movant failed to amend
motion for summary judgment to assert grounds to defeat causes of action
raised in amended petition filed after motion).
In a civil action, pleadings admit claimant’s entitlement to
judgment. A plaintiff (or litigant asserting a claim for affirmative relief) may
be entitled to summary judgment on the pleadings in certain cases. For
example, in an action on a sworn account, the failure of the opposing party
to deny the truth of the account properly may entitle the claimant to
judgment because the answer does not raise any issue of material fact.Tex.
R. Civ. P. 185; see Hidalgo v. Surety Savings and Loan Association, 452
S.W.2d 540, 543 n.1 (Tex. 1971); Bado Equipment Co., Inc. v. Ryder Truck
14
Lines, 612 S.W.2d 81, 83 (Civ. App.---Houston [14th Dist.] 1981, ref. n.r.e.)
(when suit meets requirement of Tex. R. Civ. P. 185 and defendant’s answer
does not meet requirements of that rule, plaintiff’s motion for summary
judgment need only state that defendant’s answer does not raise any issue
of material fact).
2. Granting of “no evidence” partial summary judgment and summary
judgment was prematurely granted to appellee, abuse of discretion
failing to allow discovery, and inadmissable evidence filed into record
Case law makes it plain that the discovery system’s ultimate
purpose is to reveal the truth, so that disputes may be decided by the facts
that are revealed, not the facts that are concealed see In re Colonial
Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998); Tom L. Scott, Inc. v. Mcllhany,
798 S.W.2d 556, 559 (Tex. 1990); Garcia v. Peeples, 734 S.W.2d 343, 347
(Tex. 1987); Japole v. Touchy, 673 5.W.2d 569, 573 (TEx. 1984), disapproved
on other grounds, Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992).
Ordinarily, the testimony of an expert witness does no more than raise an
issue to be determined by the trier of fact; it usually does not establish any
fact as a matter of law see Uniroyal Goodrich Tire Co. v. Martinez, 977
S.W.2d 328, 338 (Tex. 1998); McGilliard v. Kuhlmann, 722 S.W.2d 694, 697
(Tex. 1986). An expert’s opinion must be based on reliable foundation,
amounting to more than an unsupported speculation or subjective belief.
Expert testimony evidence must be probative and not conclusory and be
based on reasonable medical probability to be admissable into evidence
[APPEAL NO. 120253]; Guevara v. Ferrer, 247 5.W.3d 662 (Tex. 2007). In
15
Texas Supreme Court in Crump, announced a general rule that causation
requires expert medical evidence. However, there are exceptions to the
general rule. In Guevara v. Ferrer, the Court stated,” [t]ype of eveidence
establishing a sequence of events which provides a strong, logically,
traceable connection between the event and the “condition” could suffice
to support a causation finding:” 1) are within the common knowledge and
experience of a layperson; 2) did not exist before accident; 3) appeared
after and close in time to the accident, and; 4) are within the common
knowledge and experience of laypersons a work injury. The Texas Supreme
Court, later noted non-expert evidence alone is sufficient to support a
finding of causation in limited circumstances where [both] the occurences
and condition complained of are such that the general experience and
common sense of laypersons are sufficient to evaluate the conditions and
whether they were caused by the occurences. Id. Additionally, every expert
opinion must : 1) be based on accurate facts; 2) state an opinion in a
reasonable medical probability (not speculation, conjecture or possibility);
3) Include an explanation of causation and it may not be merely conclusory;
and 4) discuss and eliminate alternate possible causes if relying on
differential diagnosis. Furthermore, in Crump, does not require injured
worker to present expert medical evidence using (differential diagnosis
method). Moreover, it does [n]ot require medical evidence when claimant
was diagnosed with condition on date of injury. Appellant sought medical
attention in less than eighteen (18) hours from the time of injury [APPEAL
NO. 120253, 120383; 032608; CR 16 1. Upon a doctor visit with his PCP lesst
16
than 24 hours, appellant was provided minimal service because he suffered
a work injury and was given two weeks worth of medication until he was
able to see a workers’ compensation network doctor as stated by his PCP.
Appellant’s PCP, noted left shoulder..., left trapezius muscle tender, neck
muscle tender at trapezius and acute myositis [CR 16]. Furthermore, a neck
injury can masquerade as a shoulder injury [APPEAL NO. 080730].
Moreover, Appeals No. 080730 is a situation that is nearly the exact same
case, with a difference of left and right side, and the carrier accepted the
compensable injury of shoulder strain/sprain and cervical radiculitis and the
insurance carrier filed notice of disputed issue(s) and refusal to pay benefits
on May 9, 2012 which is not within 60 days of February 21, 2012 or, on or
before Aprill 22, 2012 [APPEAL NO.032668]. Though there was
inadmissable evidence, or alternatively, if the evidence was admissable, it
did not overcome the fact of section 409.021(c), waiver of right to dispute
cervical radiculitis, 5mm left paramedian protrusion (herniated disc), and
left shoulder strain/sprain. The additional scientific evidence by EMG/NCS
nerve study and MRI of left shoulder identified the underlying causes of the
radicular pain and parathesia (numbness, tingling, spasms, and etc.). Dr
Andrew Cole’s evaluation of the appellant, even if his evidence was
admissable, did not dispute the fact of the injury, but that in his [e]
stimation, the “injury was chronic and pre-existing [CR 56]; The Rylond
Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex 1996).” In a “differential
diagnosis method”, it was performed by Dr Cole indicating a decrease in
sensation on the ulnar aspect of the left hand and decrease in sensation
17
below the elbow on the volar surface of the arm. For the Cervical Spine, it
was noted decrease of flexion and extension. Additionally, the Dr. Cole
stated [I] am obtaining shoulder MRI and EMC and consult to fully
evaluate exaiminee [CR 146-155]. Ergo, he provided an evaluation that was
conclusory, presented with conjecture, possibilities and speculations, and
not probative in nature. The same holds true for the Peer Review by Dr
Phillip Osborne, Expert Review and Opinions of Dr. Martin Steiner and Dr.
Richard Suss. Neither of the experts could provide a means of medical
possibilities of causation, nor could they produce any evidence to establish
a pre-existing injury and that the injury was not within the course and
scope of employment. Moreover, the injuries were accepted as
compensable and the insurance carrier did not dispute within the sixty (60)
days of notification, and ergo, waiving there rights to compensability and
liability for the injuries suffered by the appellant [APPEAL NO. 080730,
94224, 002920, 111710, 120253, 20383, 130808; TEX. LAB. CODE SECTION
409.021(C), 409.004(2); SECTION 401.011(10), 401.011(11)]. Based on the
evidence of Dr. Andrew Cole assigment of MMI/IR, he noted on his cervical
flexion, extension, lateral flexion and rotations, though he provided a zero
percent Impairment rating, at that time impairment was at least 10%
impairment for those measurements and Diagnosis- Related estimated DRE
Category Ill: Radiculopathy (15%) and an unoperated intervertebral disk is
estimated at 4%. Dr. Andrew Cole, if evidence was admissable, stated
appellant had a zero percent impairment rating. Clearly, that was not based
on any findings of probative nature. The MRI evidence presented a
18
herniated disc and he was diagnosed with cervical radiculitis
[APPEAL NO. 111710].
X. PRAYER
The issues are whether American Zurich Insurance Company
presented summary judgment material evidence to negate all the claims
asserted by the Appellant Tren S. Griffin, Sr., whether the evidence was
admissible and even if it was, did trial court abuse its discretion by granting
a “no evidence” partial summary judgment, then a summary judgment
when at least one or more elements of all the claims were not negated,
trial court erred by allowing evidence based on the agency’s intervening
actions or decision in a “trial de novo” review. Additionally, did the trial
court abuse its discretion by depriving the Appellant of an opportunity to
present summary judgment evidence and without providing notice of a
summary judgment hearing that was scheduled without notice from the
court or the Appellee. In the final analysis, the evidence presented by
American Zurich is inadmissable, expert testimony, peer review and
agency’s actions and decisions are devoid. Furthermore, American Zurich
Insurance Company did not present an affirmative defense, when it
presented a response that was based on the actions or decision of the
agency. Moreover, it is clear American Zurich Insurance Comapny waived
its rights to contest the compensability of the injury and their liability. For
these reasons stated in the brief, Trent S. Griffin, Sr. asks the Court to
reverse the trial court’s judgment, and render judgment for Trent S. Griffin,
19
Sr., or in the alternative, to reverse the trial court’s judgment and remand
the case for new trial.
20
CAUSE NO. 05-14-01510-CV
TRENT S. GRIFFIN, SR.,
Appellant,
V.
AMERICAN ZURICH INSURANCE COMPANY,
Appellee
Xl. APPEllANT’S APPENDIX
1. No-evidence Partial Summary Judgment dated August 15, 2014
Clerks Record 156 Tab 1
2. Summary Judgment dated August 15, 2014
Clerks Record 157 Tab 2
3. Plaintiffs Original Complaint dated Mat 29, 2013
Clerks Record 5 - 17 Tab 3
4. American Zurich Insurance Company Original Answer
dated August 13, 2014.
Clerks Record 31-33 Tab 4
5. 101st District Uniform Schduling Order (Level 2)
dated September 17, 2013
Clerks Record 35 37 - Tab 5
6. FORM NO. 353-3 CITATION THE STATE OF TEXAS
21
dated September 19, 2013
Clerks Record 38 39- Tab 6
7. UNITED STATES POSTAL SERVICE Letter dated August 21, 2013
Clerks Record 40 Tab 7
8. Defendant’s No-Evidence Motion For
Partial Summary Judgment dated June 27, 2014
Clerks Record 41 -45 Tab 8
9. Defendant’s Motion For Summary Judgment dated June 27, 2014
Clerks Record 46 50- Tab 9
10. Business Records Affidavit dated September 17, 2013
Clerks Record 52 62- Tab 10
11. Certfication of Instrument(s) dated September 17, 2013
Clerks Record 64- 70 Tab 11
12. Affidavit of Richelle Cabrales dated June 19, 2014
Clerks Record 76 Tab 12
13. Dr. Martin Seiner’s Report dated October 19, 2012
Clerks Record 84 87- Tab 13
14. Dr. Richard Suss’s Report dated November 26, 2012
Clerks Record 113 114 - Tab 14
15. Dr. Phillip Osborne’s Report dated May 2, 2012
Clerks Record 125 134 - Tab 15
16. Request For Findings of Fact and Conclusion of Law
dated September 3, 2014
Clerks Record 161- 162 Tab 16
22
17. Motion for New Trial dated September 5, 2014
Clerks Record 164- 170 Tab 17
18. Affidavit dated September 4, 2014
Clerks Record 171 173
- Tab 18
Respectfully submitted,
T4t . àrt4Y iro se
7frj Meandefing Dr.
Cedar Hill, TX 75104
469-337-0598[NEW]
23
CERTIFICATE OF SERVICE
I certify that a true copy of the above Motion for AppellantTs Brief and
Appellant’s Brief has been sent by certfied mail by depositing it enclosed in
a postpaid, properly addressed wrapper in a post office or official
depository under the care and custody of the United States Postal Service
to attorney Todd Richards, The Silvera Firm, 1015 Providence Towers East,
5001 Spring Valley Road, Dallas, Texas 75244, attorney of record for
American Zurich Insurance Company at Corporation Service Company, 211
7th
East Street #620 Austin, Texas, Travis County, Texas.
SIGNED on March 30, 2015.
CMRR: 7013 2250 0002 3632 3256
t( -‘vvj
Trjnt S. Griffn o se
2
FiLED IN
5TH COUP1 OF APPEALS
CAUSE NO. 0S-14-01510-CV71115 APR 2L1 PH q: QQ
LISA MATZ. CLERK
IN THE
FIFTH COURT OF APPEALS
DALLAS, TEXAS
TRENT S. GRIFFIN
Appellant,
V.
AMERICAN ZURICH INSURANCE COMPANY
Appellee.
On appeal from the
101st District Court of
Dallas County, Texas
APPELLANT’S APPENDIX
Trent S. Griffin, Sr.
724 Meandering Dr.
Cedar Hill, Texas 75104
Tel. 469-337-0598
TRENT S. GRIFFIN, SR., PRO SE
APPELLANT
CAUSE NO. 05-14-01510-CV
TRENT S. GRIFFIN, SR.,
Appellant,
V.
AMERICAN ZURICH INSURANCE COMPANY,
Appellee
XI. APPELLANTS APPENDIX
1. No-evidence Partial Summary Judgment dated August 15,
2014
Clerks Record 156
Tab 1
2. Summary Judgment dated August 15, 2014
Clerks Record 157
Tab 2
3. Plaintiffs Original Complaint dated Mat 29, 2013
Clerks Record 5 17
-
Tab 3
4. American Zurich Insurance Company Original
Answer
dated August 13, 2014.
Clerks Record 31- 33
Tab 4
5. 101st District Uniform Schduling Order (Level
2)
dated September 17, 2013
Clerks Record 35 -37
Tab 5
6. FORM NO. 353-3 CITATION THE STATE OF TEXA
S
dated September 19, 2013
1
Clerks Record 38 39
-
.Tab 6
7. UNITED STATES POSTAL SERVICE Letter dated August 21, 2013
Clerks Record 40 Tab 7
8. Defendant’s No-Evidence Motion For
Partial Summary Judgment dated June 27, 2014
Clerks Record 41-45 Tab B
9. Defendant’s Motion For Summary Judgment dated June 27, 2014
Clerks Record 46- 50 Tab 9
10. Business Records Affidavit dated September 17, 2013
Clerks Record 52 62
-
Tab 10
11. Certfication of Instrument(s) dated September 17, 2013
Clerks Record 64 70
-
Tab 11
12. Affidavit of Richelle Cabrales dated June 19, 2014
Clerks Record 76
Tab 12
13. Dr. Martin Seiner’s Report dated October 19, 2012
Clerks Record 84- 87
Tab 13
14. Dr. Richard Suss’s Report dated November 26,
2012
Clerks Record 113 114-
Tab 14
15. Dr. Phillip Osborne’s Report dated May 2, 2012
Clerks Record 125 134-
Tab 15
16. Request For Findings of Fact and Conclusion of
Law
dated September 3, 2014
Clerks Record 161 162
-
Tab 16
17. Motion for New Trial dated September 5, 2014
2
Clerks Record 164- 170 .Tab 17
18. Affidavit dated September 4, 2014
Clerks Record 171- 173 Tab 18
Respectfully submitted,
if
IgDr
Cedar Hill, TX 75104
469-337-0598[N EW]
3
i
000341
CAUSE NO. DC-1345893
TRENT S. GRWFN, § N ThE DIICT COURT
P1aind•
v. iOl JUDICAL DISTRICT
§
AMERICAN ZURICH INSURANCE §
COMPANY §
Dthnda § DALLAS COUNTY, TEXAS
ORDER ON DRP€NDAMI’S NO-fl’IDENCE MOTION YOR PARTIAL S{ThIMAfty
JUDGMENT
On this date, canie on to be considered the No-Evidence Motion thr Perth! Summary
Judgment ofDekndwit, AmericaZurich Insurance Companyand the Cowl, having considered said
motion, evidence, and arguments of counsel, is of the opinion that said motion should be granted.
It is, therefore, ORDERfl ADJUDGED, AND DECREED that Deftndant’s No-Evidence
Motion for Partial Swnmaiy Judgment is hereby GRAnTED. -
SIGNED, this of . 2014.
JIJDGBPRBSWNG
oan owDrww*ifl No.EVmUKIMOflON FORPAMIALSUhWARY SUDGMrfl- PACK 1
156
i43E
000342
CAUSE.NO. DC-i 3-05893
TRENT S. GRifFIN, § N THE DISTRICT COURT
Plaindfi §
JUDICIAL DISTRICT
AMERICAN ZURICH INSURANCE
§
COMPANY
§
Defendant
§
DAlLAS COUNTY, TEXAS
ORDER ON DEnNDANVS MOTION FOR SUMMARY JUDGMFRF
On this date, came on to be considered the Motion fir Swnmwy Judgment of Defendant,
American Zurich Insurance Company and the Court, having considered said motion, evidence,
and
arguments of counsel, is of the opinion that said motion should be granted.
It is, therefore, ORDERED, ADJUDGED, AND DECREED that Defendant’s Motion for
Summary Judgment is hereh3RAI1TED.
SIGNED, this /1 day of________________
EPRBS NO
/
Ozwu onnnehr4fl MOTION P0K SUMMARY JUDGMENT PAGE 1 -
Tn
157
AFFIDAVIT INABILItY TO PAY -
-
ORIGINAL
Vc13 —05893
NO._____________
Trent S. Griffin ‘3
} IN TUE DISTRICT COURT
[plain4ft
•
} DALLAS COUNfl TEXAS
DISTRICJ
I ioi
AMERICAN ZURICH }
INSURANCE COMPANY )
[defendantl )
I
PLAThTWF’S ORIGINAL PETmON
TO THE HONORABLE COURT:
Trait S. Griffin, plaintifi complains of Texas Department of Insurance,
Division of Workers’ Compensation, hereafter referred to in this petition as
the agency and, American Zurich Insurance Company, defendant, and by
this petition seeks trial de novo review of a decision of agency; pursuant to
Government Code 2001.173 ,and as grounds for review shows:
I.
JURISDICTION
The plaintiff is employed as a pharmacist with Waigreens Company,
residing in Dallas County, Texas. Agency is a state commission having
statewide jurisdiction and service of process may be had by serving Chief
Clerk Proceedings, Texas Department of Insurance, Division of Workers’
Compensation, P.O. Box 17787, Austin, Texas 78744-7787 and
PLAINTifF’S ORIGINAL PETITION TO SEEK TRIAL DE NOVO- PAGE 1
5
American Zurich Insurance Company, its attorney Todd
Richards at The
Silvera Ffrm,IO1S Providence Towers East, 5001 Spri
ng Valley Road,
Dallas, Texas 75244 Dallas Countyç Texas or its registered
agent for service
of process, Corporation Service Company, 211 East 7th Stree
t, #620 Austin,
Texas Travis County, Texas. American Zurich Insurance
Company alleges
extent of injury to include cervical and shoulder spxüi/stra
in with a
maximum medical improvement date ofApril 26,20 12 and
an impairment
rating of zero percent This petition is timely ified in the appr
opriate court in
accordance with 410.252 ofthe Texas Labor Code, not later than the
45th
day after which the division mailed the decision ofthe appeals panel
with
the mailing date considered to be the fifth day afterthe date ofApril 15,
2013, the date of the appeals panel decision and the county where the
employee resided at the time of injury. Plaintiff pleads that discovery
should be conducted in accordance with a tailored discovery control plan
under Civil Procedure Rule 190.4.
II.
SUMMARY OF CASE
On February 21,2012, the plaintiff sustained an injury to the neck and
shoulder while performing duties and responsibilities as a Pharmacy
Manager and Staff Pharmacist for Walgreens Company.
On February 22,2012, the plaintiff contacted the employer and the
agency about the work related injury. A true copy of EMPLOYERS
PLAINTWE’S ORIGINAL PnTL iON TO SEEK ThIAL DE NOVO- PAGE 2
6
FIRST REPOfl OP INJURY OR ILLNESS
is attached as Exhibit A
and incorporated by reference. The plaintiff
on the said date sought medical
attention from his primazy care physician. A
true copy of PRIMARY
CARE PHYSICIAr4 CHART NOTE is attached
as Exhibit B and
incorporated by reference.(emphasis added)
On February 23,2012, the plaintiff sought
medicai attention from a
workers compensation network doctor at the discretion
of the agency. The
plaintiff began treating with doctor RD. Holder, D.C.
Doctor Holder on said
date, performed a physical exam and noted there was
a decrease range of
motion with tenderness ofthe left shoulder and a POSITIVE
SPURLING’S TEST. Dr. Holder diagnosed the plaintiff with lCD-codes
723.4 cervical radiculifis and 840.9 sprain and strain of left
shoulder.(emphasis added)
On March 29,2012 the plaintiff underwent a cervical MRI and the
findings were cord normal, osseous structures normal, disc spaces normal,
and no disc disease identified. The MRI identified a left paramedian disc
5mm protrusion mildly compressing the ventral cord. Dr. James Piko’s
impression was this may account for the symptoms of left upper extremity
paresthesia.(emphasis added)
On May 2, 2012, a PEER REVIEW was performed by Dr. Phillip
Osborne, MD. This peer review was beyond the 60 days allowed to
investigate and contest an injwy.(emphasis added)
On June 22,2012 the plaintiff underwent a physical exam by a
Designated Doctor, Dr. Andrew Cole. Dr. Andrew Cole’s physical
PLAINTifFS ORIGINAL PETiTION TO SEEK TRIAL 1W NOVO- PAGE 3
7
examination was impartial and
prejudice. Dr Cole did not perfor
ma
thorough exam of the plaintiff
. Dr. Cole was tasked to determine
ma ximum
medical improvement and impai
rment rat ing, with an additional test of the
left knee. In Dr. Cole’s designated
doctor evaluation, Dr. Cole indica
ted a
shoulder M and EMG cons
ult were needed to fliHy evaluate
this
examinee. Athie copy of Dr. Co
le’s Determination Of Maximum
Medical
Improvement(MM1) and Impairm
ent Rating(IR) is attached as Exhib
it C
and incorporated by reference.(emp
basis added)
On June U, 2012 the plaintiff underw
ent aIvWI of the left shoulder.
Dr. James Piko’s impressIon indicated sup
raspinaws diMs] tendon
attenuation, without any tear identified and
mild sub deltoid bursitis.
On June 28,2012, Dr. Andrew Cole completed
the Thi REPORT OF
MEDICAL EVALUATION without fully evalu
ati ng the examinee.
Dr. Cole did not review the left shoulder MEl and did
not obtain the consult
for the EMG/NCS nerve smdy.(emphasis added)
On July 20, the plaintiff underwent an EMG/NCS nerve study. This tes
t
was performed by a physician that is specially trained in EDX medicine and
the data was provided to an independent expert to review the materiaL for an
independent interpretation. Dr. Edwin Green electro diagnostic impression
indicated mild, early, left sided mid-cervical radiculopahW He suggested
strong clinical correlation with the cervical spine MEL Dr. Green primary
diagnosis was Cervical Radkulopathy, left-mid.(emphasis added).
On August 24,2012, Dr. Andrew Garrett, Board Certified for fvffvfl and
W, fully evaluated the plaintiff and certified the examinee did not reach
PLAINTIFF’S ORIGINAL PETITION TO SEEK TRIAL DE NOVO- PAGE 4
S
maximum medical improvement Dr. Garrett
indicated in his Muscle
Atrophy Evaluation, the examinee had more
than a 2 centimeters difference
in circumference of the upper ann indicating
moderate and prolonged nerve
impairment. In Dr. GmreWs Treatment Plan, the
plaintiff has met aU criteria
for a trial of Epidunl Steroid Injections (ESI).
On November 29,2012 a scheduled benefit review
conference was
improperly conducted. The agency nor the agency’s
representative appeared
in person to propedy discuss the disputes and exchange
of documents. The
BRC was impartial and prejudice.
On November 29,2012, the agency notified the plaintiff to appear
before it and show cause why the plaintiff’s extent of injmy included
cervical C6-7 left panmedian protrusion and radiculitis, C5-6 radiculopathy
and maximum medical improvement not at MML
a
DECISION AND ORDER
On Januaiy 24,2013, the agency rendered its decision and reffised to
grant the plaintiff’s application for extent of injury to include the left
panmedian pmmision(herniated disc), cervical rafficulopathy/radiculits
and not at maximum medical improvement The plaintiff timely filed an
appeal and the Appeals Panel Review of the Hearings Officer’s Decision
and Order became final on the date April 15, 2013 wider the provision
410.204 of the Texas Labor Code. All conditions precedent having been
PLAINTifFS ORIGINAL PETITION TO SEEK TRIAL DE NOVO- PAGE 5
9
performed or having occurred, the
plaintiff is entitled to trial de novo
in
accordance with 410251 and
410.252 of the Texas Labor Code
and Section
2001.173 of the Government Code.
‘V.
The plaintiff will show that the agency
’s findings, inferences,
conclusions and decisions are unlawflA
and improper becaus e of one or
more of the following:
1. The agency’s decision is not reasonably suppor
ted by substantial
evidence in view of the reliable and probative
evidence in the record as a
whole. In this connection, the plaintiff will show that
the extent of injury
for compensability is more than a cervical and left should
er sprain/strain in
the finding of fact number IF, that it is so lacking in eviden
tiaiy support that
reasonable minds could not have reached that conclusion. The plaintiff
plead the use of the AMA Guides 4th edifisi. prior to
hjmy frimaty care
physician’s medical records, work schedules, wage earning statements,
current medical records, emails, witness testimony, doctor’s testimony,
video, prescription records and any other fact findings and conclusions of
law to plead the plaintiff’s case.
2. The agency’s decision denies plaintiff due process of law and the
right to equal protection ofthe law, as guaranteed by the Constitution of the
United States and the State of Texas in that it uses the laws to manipulate
PISAINFWPS ORIGINAL PEunON TO SEEK TRIAL bE NOVO- PAGE
6
ID
injured workers, that can have serious complications and
potentially lead to
loss of lifr or limb. The decisions are impartial and
prejudice, they lack the
real meaning of the words” truth held to be self
evident”. In accordance with
409.021 and 409.022 of the Texas Labor Code, the
carrier waived its rights
to contest compensability, filing a dispute passed the
60 days. The Hearing
Officer validated the designated doctor and alternative
physicians
credentials to examine an injured workers compensability
but failed to
verify the validity ofthe dispute. The late filing of dispute
was presented to
the appeals panel rekrwicing Appeal No. 080730.
3. The agency’s decisions exceeds its statutory authority in that
ft
makes life and death decisions regarding injured worker’s. The injured
worker’s can become a menace to society based on improper decisions of
the agency. Those decisions can cause families to suffer immensely,
physically, emotionally and financially. These proceedings can take to long
time and in the meanwhile an injured worker is constantly suffering due the
medical necessity/prior authorizations required to treat injuries.
4. The agency’s decision was made on unlawflil procedure in that the
plaintiff was cross-examined and the defense had no one present to be cross-
examined. The Ombudsman makes an opening statement and the plaintiff is
questioned from both sides with one goal, to get one side of the story on
record. There was a lack of interest in what another doctor says about the
treatment of an injured worker, only one doctor has more weight even with a
preponderance of evidence to show the contrary. The process with TDI
DWC is a fame.
PLAINTifF’S ORIGINAL Pm nON TO snC TRIAL DE NOVO- PAGE 7
Ii
5. The agency’s decision ignored the evidence and,
instead, the agency
ruled as a result networking in the State of Texas.
Accordingly, the agency’s
decision is arbinjy, capricious and characterized by
an abuse or clearly
unwanted exercise of discretion. Anytime it is stated
an appeal is upheld
95% of the Hearing Officer’s Decisions, only
5% ofthe cases are allowed
through. This is evidence at it’s best for bias and impartial
rulings regardless
of the evidence for injured worker’s.
V.
CONCLUSION
As a result of the unlawful and improper action as described above,
The plaintiff has suffered harm and prejudice to substantial rights. In this
connection, the plaintiff will show that pain and suffering, depression,
distress and anxiety, loss of wages, loss of enjoyment of life, life
expectancy, future medical, physical structure damage, job, inability to care
properly for children, loss of business efforts, inability to work overtime,
inability to maintain home and cars.
WHEREFORE, the plaintiff request that the agency and the defendant
be cited to appear and answer that the agency be required to prove its
allegations against the plaintiff and that on final trial, the plaintiff have
judgment of the Court:
PLAINTifFS ORIGINAL PEnUON TO sak TRIAL DE NOV PAGE 8
12
1. Reversing the decision of the agency, and ordering that the
agency
and defendant take nothing by its suit
2. Awarding the plainfiff costs incurred, together with all other relief to
which the plaintiff may be justly entitled.
Respeethilly su.
By
Tren
7Y
Gri h1&fffl]
72 den
C Hffl,TexaslSlo4
972-291-9569(h)
2l4418-9609(c)
PLAINTIFF’S omcia PnTi’iON TO SEEK ThIAL DE NOVO- PAGE 9
13
L
CERTIFICATE OF SERVICE
I hereby cerffl3’ that a true copy of the above Plaintiff’s
Original Petition
have on this 29th day of May, 2013, been sent by
the United States Postal
Service for Certified Mail Receipt
Chief Clerk Of Proceedings CMR: 7012 1640 0002 3410 7516
Texas Department of Insurance
Division of Workers’ Compensation
P.O. Box 17787
Austin, Texas 787447787
Todd Richards CMR: 7012 1640 0002 3410 5000
The Silven Firm
1015 Providence Towers East
5001 Spring Valley Road
Dallas, Texas 75244
PLAINTifFS ORIGINAL PEU1ION TO SEEK TRIAL DE NOVO- PAGE 10
14
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r—’r 1L SMNT RAflP
On. Jp4pflo OF Wfl5UM MEDiCAL awRo evdu.b vie a....
I am oaalnlng sadder urn mi EMO and await to My
q4lbb with soft Ii.-— sflfl to the
Preimmay to this a bakig obtained. my tiding. me con iw condluom of the shoulder and
esi g deg inem
nedc end efridder a et gidS.cJ m pre
neck — preen — synçtmt
As a result, the patient la at MMI with aO% whale pem on knpalrnwm — Mated to the wa*
The dais ci MW WW be placed at M2W201 1, the date of vial to Or. Walsid’s ci?Ice,
hjury.
ntaly two marts from die date of ijisy
which noted no slgnlcs* drg.a 11* is appmö ie flint
and Is fuRy cwnpetlbls with meduffon of each .t tiem
I wiN be abbkiig an EMG aid shoulder MRS end who w provide an athlsndum after Vine are
le inceiment I wi so notify ii
attained. if they ted my decision — to MW and
the addendum.
‘,4f FOR AN).inMAj in leNt
unable to schedule both DIG and 1*41. He was
As of W2W2012 the aa,Jin ties been wiebie to attend and ha not medieduisd. As a
ncdfled of an appointment on 6126112, WI was
,,5 adng widin DWC Urn. inladons, I wit bializa my
mmA cs 5 c not obtai a&L 12012 and 0% knpebment That Is c.Iaiad
report with decisions noted above. W* on 4126 0% inpámm* a4 bibs left shoulder a
ORE Cgoiy 1,0% for his neck. liwis Is. tissue sprai n lid IoN she.- hjwy. The SM
the of rn4a, de6dte wotid not apply to ascii SawJ 0%
m*e
on end is
lea. Id on 0MC32 has M mugs of moti
uon has been
15* xflors m.1iod hi 0* sn the opinions of the evaimor. The evia povi ded. with the
erilnatlon and Sm aimflS m
amducted on the basis of the medcd correct. If more h&aii.Sgl bcGff in s-’ at a
aeawnØon ma the mdM.I is true and sideradon may be requested.
bier date, an additional ast&rspcrtftscon
wi
Via opinions rendered In this evalueUon.. This oØil
Bud, hifamiadon may or n ud change lnatlon and doanrdatlan. The opWui does not
is based on a dnlcai aaeeentent, enni ific daims or adndnlsfltfre fimdion to be made
or
constiba, par a, a mcaiwMtIon for spec
sithotigh the ewnkbn may appear to be ft to
Medidne Is both an act and a science, mid Is no guarantee that the h’,thithi& will not be
, there
prtldpate hi various types of activities of ps&çhig In tc.täii aea
rek4tnd or afl a&% iat flay samat
M*w 7. Cola, MD, MPJL
&w arnat, — ue&m
TXMD H10 %
Tens CsUfiad Designated DocW, Impa innent AOL Lentil
t 5I883
AIC: tBUswm, ft 06124112, T: 06126112, Job
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CAUSE NO. 0043-05893
TRENT S. GRIFFIN,
Plaintiff,
§
§
IN THE DISTIUb
\ ‘tP
aa’ ‘>
C
§ lOP’ JUDICIAl Dlb?J
AMERICAN ZURICH INSURANCE §
COMPANY and TEXAS DEPARTMENT §
OF INSURANCE, DIVISION OF §
WORKERS’ COMPENSATION §
Defendants. § DALLAS COUNTY, TEXAS
AMERICAN ZURICH INSURANCE COMPANY’S
ORIGINAL ANSWER
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, American Zurich Insurance Company, Defendant in the above entitled and
numbered cause, files this Original Answer and would respectfiully show the Court and all parties
as follows:
I.
GENERAL DENIAL
Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendant hereby denies all
allegations and hereby requires Plaintiff to prove his cause of action by a preponderance of the
evidence. Defendant specifically denies each and every allegation contained in Plaintiff’s Original
Petition and demands strict proof by a preponderance of the evidence thereon.
H.
ADMISSION OF THE DECISION OF THE
DIVISION OF WORKERS’ COMPENSATION
The issues determined by the Division of Workers’ Compensation pursuant to the contested
case hearing decision and order and Appeals Panel affirmation were as follows: (I) has the claimant
AMERICAN ZURICH INSURANCE COMPANY’S ORIGINAL ANSWER PACE 1 -
Th:bla 76-359
31
reached maximum medical improvement, and if so, on what date;
(2) if the claimant has reached
maximum medical improvement what is the impairment rating; (3) does
the compensable injury of
February 21, 2012 extend to include a left panmedian disc protrus
ion at C6-7 and cervical
radiculopathy/ndicWitis.
The Hearing Officer correctly determined that Plaintifffailed to meet
his burden ofproofand
the compensable injury of February 21, 2012 was not producing cause
of a left paramedian disc
protrusion at C6-7, cervical ndictiiopathy or cervical radiculitis and the claima
nt reached clinical
maximum improvement on April 26,2012 with a 0% impairment rating. The
Appeals Panel of the
Texas Department of Insurance, Division of Workers’ Compensation aflinne
d this decision in favor
of the Defendant. Pursuant to Section 410.169 or Section 410.204(c) of the Texas
Labor Code,
Defendant requests that the jury be informed of the decision of the Division
of Workers’
Compensation on each issue to be presented to the jury.
WHEREFORE, PREMISES CONSIDERED, American Zurich Insurance Company
prays
that upon final hearing herein Plaintiff recover nothing from Defendant, that Defend
ant have
judgment in its favor that the compensable injury of February 21,2012 does not extend to
include
a left paramedian disc protrusion at C6-7, cervical radiculopathy or cervical nthculitis and
that the
claimant reached clinical maximum medical improvement on April 26, 2012 with a 0%
impairment
rating. Ddndant prays that all costs be taxed against Plaintiff. Defendant further
prays for such
other and further relief to which it may be justly entitled, whether at law or in equity.
AMERICAN ZURICH INSURANCE CoMPANY’s ORIGINAL ANSwUt PAGE 2 -
TR:htafló-359
32
____
____
____
____
__
RespectfUlly submitted,
THE SILVERA FIRM
A Professional Corporation
BY:
‘—‘todd Richards
State Bar No. 16855500
Darryl J. Silven
State Bar No. 18352280
1015 Providence Towers East
5001 Spring Valley Road
Dallas, Texas 75244
TELEPHONE (972) 715-1750
FACSIMILE (972) 715-1759
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrumentpas served
upon
Plaintiff herein in accordance with the Rules of Civil Procedure on
thisZt’r day of August,
2013.
Trent Griffin CMRRR #7012 1010 0002 9077 9936
724 Meandering Dr.
Cedar Hill, DC 75104-6065
RICHARDS
AMERICAN ZURICH INSURANCE COMPANY’S ORIGINAL ANSWER PAGE
Th:bêa ‘76-359 3 -
33
qqq
•“ 000669
CAUSE NO. DC4345893
TRENT S. GRIFFIN, § IN TUE DISTRICT COURT
Plaintiff, §
v. § 1O1’ JuDICIAL DISTRICT
§
AMERICAN ZURICH INSURANCE §
COMPANY §
Defendants. § DALLAS COUNTY, TEXAS
1O1 DISTRICT COURT UNIFORM SCHEDULING ORDER (LEVEL 1)
In accordance with Rules 166,190 and 192 of the Texas Rules ofCivil Procedure, the Court
makes the following order to control discovery and the schedule of this cause:
10
1. This case will be ready and is set for thai at 9:00 &m. on 140 €Th&%a*ie “Initial
Trial Setting”). Reset or continuance of the Initial Trial Setting will not alter any deadlines
established in this Order or established by the Texas Rules of Civil Procedure, unless otherwise
provided by order, if not reached as set, the case may be carried to the next week.
2. Unless otherwise ordered, discovery in this case will be controlled by:
( ) Rule 190.2 (Level 1)
ØQ Rule 190.3 (Level 2)
of the Texas Rules of Civil Procedure. Except by agreement of the party, Leave of court, or where
expressly authorized by the Texas Rules of Civil Procedure, no party may obtain discovery of
information subject to disclosure under Rule 194 by any other form of discovery.
3. My objection or motion to exclude or limit expert testimony due to qualification of
the expert or reliability of the opinions must be filed no later than seven (7) days after the close of
the discovery period, or such objection is waived. Any motion to compel responses to discovery
(other than relation to factual matters arising after the end of the discovery period) must be filed no
later than seven (7) days after the close of the discovery period or such complaint is waived, except
for the sanction of exclusion under Rule 193.6.
4. My amended pleadings asserting new causes ofaction or affimmtive defenses must
be filed no later than thirty (30) days before the end ofthe discovery period and any other amended
pleadings must be filed no later than seven (7) days after the end ofthe discovery period. Amended
pleadings responsive to timely filed pleadings under this schedule may be filed after the deadline for
oP1 DISTRICr COURT UNIFORM SCHEDULING ORDER (LEVE4) Page I
35
_____-—
amended pleadings if filed within two (2) weeks after the
pleading to which they respond. Except
with leave of court, TRCP 166a motions must be heard
no later than thirty (30) days before thai.
5. No additional parties may be joined more than
commencement of this case except on motion for leave five (5) months after the
showing good cause. This paragraph does
not otherwise alter the requirements of Rule 38. The party
joining an additional party shall serve a
copy of this order on the new party concurrently with
the pleading joining that party.
6a. y The parties shall mediate this case no later than thirty
(30) days before the
Initial Trial Setting, unless otherwise provided bycouttorder.
Mediation will
be conducted in accordance with the Standing Dallas
County Civil District
Court On yR garding Mediation, which is avnilable fiomth
eflaflas County
ADR Coordinator. All parties shall contact the mediator
to arrange the
mediation.
C The mediator has been selected by agreement of the parties:,
is hereby appointed mediator. An mediator substitution reques
ted more than
90 days afer the date ofthis order ma only be made by motion
for submission
to the Court for good cause and under extraordinary circumstance.
Unless otherwise ordered by the Court, the parties shall select a
mediator by
agreement; if the parties are unable to agree on a mediator, they shall advise
the Court within ninety (90) days of the date ofthis order; the Court
will then
appoint a mediator.
tbytrnZiamrt
mediator subsutufio&equested more than 9 days after the date of this order
may only be made by submission to the Court for good cause and under
extraordinary circumstance.
1,. fl One or more of the parties object to mediation of this matter. Any party
seeking an order for mediation shall file an appropriate motion no later than
90 days before the Initial Trial Setting and set it for hearing no later than 60
days befbre the Initial Trial Setting.
7. Fourteen (14) days before the Initial Thai Setting, the parties shall exchange a list of
exhibits, including any demonstrative aids and affidavits, and shall exchange copies of any
exhibits
not previously produced in discovery; over-designation is strongly discouraged and may
be
sanctioned. Except for records to be offered by way ofbusiness record affidavits, each exhibit must
be identified separately and not by category or group designation. Rule 193.7 applies to this
designation. On or before ten (10) days before the Initial Trial Setting, the attorneys in charge
for
all panics shall meet in person to confer on stipulations regarding the materials to be submitted
to
the Court under this paragraph and attempt to maximize agreement on such matters. By 4pm
on the
loin Dwrma COURT UNIFORM
SCHEDULING ORDER (LEVEL2 Page 2
36
.4
Thursday before the Initial Trial Setting, the parties
shall file with the Court the materials stated
Rule 166(e)-(l), an estimate of the length of trial, in
designation ofdeposidon testimony to be ofibred
in direct examination, and any motions in
limine. Failure to file such materials may result
dismissal for want of prosecution or other in
appropriate sanction.
PIainliWPIaintjff’s counsel shall serve a copy
of this Order on any currently named
defendant(s) answering after this date.
SIGNED ON: _SFP 17 2013
AID B PRESDIN
cc: Counsel of Record/pm Se Parties and Mediator
AGREED MW APPROVED;
Attorney
Defendant Attorney Sccondaq Attorney
Defendant Attorney Seconday Attorney
soz DISTRICr COURT UNIFORM SCHEDULING ORDER (IXVEL) Page 3
37
S
S.
-
CERT MAIL
FORM NO. 353-3 CITATION
THE STATE OF TEXAS CITATION
To:
AMERICAN ZURICH INSURANCE COMPANY
SERVE REGISTERED AGENT CORPORATION SERVICE COMPANY DC43-05893
211 E 7TH STREET #620
AUSTIN TX 78701-3218
GREETINGS: TRENT S GRIFFIN
You have been sued. You may employ an attorney. If you or your attorney do not file a written vs.
answer with the clerk who issued this citation by 10 o’clock a.m. of the Monday next following the AMERICAN ZURICH INSURANCE
expiration of twenty days after you were served this citation and petition, a dethult judgment may be COMPANY, et al
taken against you. Your answer should be addressed to the clerk of the 101st DistrIct Coin at 600
Commerce Street, Ste. lOt, Dallas, Texas 75202.
Said Plaintiff being TRENT S GRIFFIN ISSUED ThIS
8th day of August, 2013
Filed in said Court 29th day of May, 2013 against
GARY HTZSIMMONS
AMERICAN ZURICH INSURANCE COMPANY Clerk District Courts,
Dallas County, Texas
For Suit, said suit being numbered DC-13-05893. the nature of which demand is as follows:
Suit on OTHER (CiVIL) etc. as shown on said petition, a copy of which accompanies this citation,
If this citation is not served, it shall be returned unexecuted. By SHELIA BRADLEY, Deputy
WITNESS: GARY FITZSIMMONS, Clerk of the District Courts of Dallas, County Texas.
Given under my hand and the Seal of said Court at office this 8th day of August, 2013. Attorney for Plaintiff
A17EST: GARY HTZSIMj. County, Texas TRENT S GRIFFIN PRO SE
724 MEANDERJNG DR
.
Deputy CEDAR HILL TX 75104
..y. (972) 291-9569
U V
DM,LAJCWITY CONSTABL*
• -: US FEES NOT
jA
____ __________
______o’clock______
I
OFflCEWS RETuRN Fl L E D
Case No.: DC-13-05893 SEP 1 2
Court No. 101st District Cowl
//“
Style: nEWT S GRIFFIN
vs.
AMERICAN ZURICH INSURANCE COMPANY, et al
day of 1A.zo , -A 11 Execuced at cR I € ‘W’) 4aZ’
Lf
o’clock .M.onthe dayof__________________
B
delivalng to the wIthi named___________________________________________________________
a is leadin first ClSi The distance actually traveled by
me in serving such process waS miles and my fees are as follows: To cerlifij which witness my band.
For serving Citation S7(J) ARYFn2sIMMoNs
For mileage DISTRiCT CLERK
ForNotssy
COMMERCE STREfl
TFJCAS 752O2.4
(Must be verified if serv
Signedandswomtobythesaid beforemethis dsyof____________
to cettIf’ which witness my hand and seal of office.
Nowy Public County___________
39
qa n_14’PFni’ nm/4 ccfl7n n-n i? -,c%”mci 1
I
e
UNITED STATS
POSERWCE
Date: August 21,2013
MAIL MAIL:
The following is in response to your August 15. 2013 request for dehvery inlbrmahon on
your Certified Mail W/RRE item number 92148901066154000019756291. The delivery
record shows that this item was delivered on August 14,2013 at 8:14 am In AUSTIN, TX
78701. The scanned image of the recipient Information is provided below.
zar
I--
Signature of Recipient:
4
I 7
Address of Recipient:
1t’ E Uk
Thank you for selecting the Postal Service for your mailing needs.
Office or postal
If you require additional assistance, please contact your local Post
representative.
Sincerely,
United States Postal Service
The customer reference Information shown below is not validated or endorsed by the
United States Postal Service. It Is solely for customer use.
0C13-5893 SB
CORPORATION SERViCE COMPANY
AMERICAN ZURICH INSURANCE COMPANY
211 E7TH ST STE 620
AUSTIN TX 78701-3218 40
flLED
D AL LAS COU NW
6/2712014 5:03:09 PM
GARY FI17SIMMONS
DISTRICT CLERI
CAUSE NO. DC-13-05893
ThENT S. GRWFN, § IN THE DISTRICT COURT
Plaintifi §
§ 1OIJUDIC1ALDISTRJCT
§
AMERICAN ZURICH INSURANCE §
COMPANY §
Defendant DALLAS COUNTY, TEXAS
DEFENDANT’S NO-EVIDENCE
MOTION FOR PARTIAL SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, American Zurich Insurance Company, Defendant in the above-entitled and
numbered cause, and makes and files this, its No-Evidence Motion for Partial Summary Judgmenç
and would respecthilly show the Court as follows:
I.
STATEMENT OF FACES
This lawsuit stems from an underlying workers’ compensation claim wherein Plaintiff ¶3,
sustained compensable injuries to his neck and left shoulder on February 21,2012.
U.
DISCOVERY STATEMENT
An evidenfiaiy hearing in this mater was held at the Division ofWorkers’ Compensation on
January 24, 2013, to decide the Ibilowing disputed issue: Does the compensable injury of
February 21, 2012 extend to include a left paramedian disc protrusion at C6-7 and cewicai
mdiculopathy/radicuiids?
PAGE 1
DEFZrWAFSr’s No-EvwEta MOTIoN FOR PAMIAL SUMMARY JUDGMENT
-
WCW359I
41
Alter hewing all of the testimony and reviewing all of the
evidence, the Hearing Officer
correctly determined the compensable injury did not extend to
include a left pammedian disc
protrusion at C6-7 or cervical radicu1opathy/radculitjs.
Plaintiff appealed the Contested Case Hearing Decision and Order
to the DWC Appeals
Panel, which affirmed the Hearing Office? s findings in theft entirety.
Thereafter, Plainflifflied this
lawsuit. Because Plaintiffhas no competent medical evidence that his
compensable injury extends
to include the above-referenced diagnoses, Defendant hereby files this No-Evidence
Partial Motion
for Summary Judgment
Plaintiff filed his lawsuit on or about May 29, 2013. Since that time, the parties have
exchanged written discovery, which has been completed. An adequate time for discovery has passed
and this Motion is ripe for hearing.
111.
GROUNDS FOR SUMMARY JUDGMENT
By this Motion, Defendant seeks a partial final judgment which will dispose of one of the
claims which have been asserted against it on the following grounds:
(a) Summary judgment pursuant to Texas Rule of Civil Procedure 166a(i)
because there is no evidence as to an essential element or elements of
Plaintiffs claim of extent of injury beyond a cervical sprain/strain and left
shoulder sprain/strain.
IV.
STANDARD OF REVIEW FOR NO-EVIDENCE
SUMMARY JUDGMENT UNDER TEX. It CIV. P. 166a(i3
Under Texas Rule of Civil Procedure l66aQ), when there is no evidence of “one or more
central elements” in plaintiffs cause of action after an adequate time for discovery has passed, the
trial cowtmustgrantsummwyjudgmentunlesstheplainfiffproducescompetentsummwyjudgment
UzFma4nr’s No-EVIDENCE MCrn0N FOR PARna SUMMARY JUDGMENT - PAGE 2
Thn
42
held that omitting the but-for language in the dcfiuiflon of “producing cause” was legally
incorrect
and erroneous. Cnimp, 330 S.W.3d at 224.
Texas courts have long held expert testimony is necessary to establish causation as to medica
l
conditions outside the common knowledge and experience ofjmors. Insurance Company ofN
orth
America v. Myers, 411 S.W.2d 710, 713 (Tex. 1966); Roarkv. Allen, 633 S.W.2d 804, 809
(rex.
1982). At the outset, such testimony must come from a person qualified as an expert on the subject
of the testimony. Texas Rule of Evidence 702; Roberts v. Williamson, 111 S.W.3d 113, 121 (rex.
2003).
Texas and frdewl courts fluter universally hold competent evidence is required to prove the
existence and nature ofa condition and a causal relationship to the event in question, with the thai
judge being charged to scrutinize the expert evidence offered for reliability. EL du Pont de
Nemours & Co. v. Robinson, 923 S.W.2d 549, 554 (Tex. 1995); Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Since Daubert and Robinson, Texas courts have held
“temporal proximity alone does not meet standards of scientific reliability and does not, by itself,
support an inference of medical causation.” Guevara v. Ferrer, 247 S.W.3d 662,667 (rex. 2007);
City ofLaredo v. Gana, 293 S.W.3d 625,630 (rex. App.-San Antonio 2009, no pet.); Crump, 330
S.W.3d at 219.
In Guevara, the Supreme Court went even further, rejecting “the false inference that a
temporal relationship proves a causal relationship.” Guevara, 247 S.W.3d at 667, quoting Rolen v.
(6U
Hansen Beverage Co., 193 Fed. App’x. 468,473 Cr. 2006); Porter v. Whitehall Labs, 9 F.3d
601,611 (7thCfr 1993).
The Guevara court further held:
DKWMfVSNO4VWENpMOnONnRP11IYJUI1 -PAGE 4
m!qn6-Th
43
A temporal relaüonship by itself, produces no evidence of causation. .me fact of
a temporal relationship establishes nothing except a relationship in lime. Proof of a
temporal relationship merely suggests the possibility ofa causal connection and does
not assist plainfliTh in proving medical causation.
Guevara, at 667-68, quotingb re Breast ImplantLitigallon, 11 F. Suppid 1217,1238-39 (D.
Cob.
1998).
b City ofLaredo, the court, drawing heavily upon Guevara, held that while evidence of
an
event followed closely by manifestation or treatment far conditions that did not appear before the
event raises suspicion that the event at issue caused the conditions, “suspicion has not been and
is not legally sufficient to support a finding of legal causation.” City ofLaredo, 293 S.W.3d at
630, citing Guevara, at 668 (emphasis added).
Accordingly, Defendant is entitled to summary judgment on Plaintiffs claim of extent of
injury as Plaintiffhas not produced any competent evidence which would create a genuine issue of
material fact on this issue.
VT.
CONCLUSION
WHEREFORE, PREMISES CONSIDERED, Defendant, American Zurich Insurance
Company, respeefflilly prays that this Honorable Court enter partial summary judgment in favor of
Defendant pursuant to Texas Rule of Civil Procedure 166a(i), and grant all other and further relief,
in law or in equity to which Defendant may be justly entitled.
DmNDANT’S No-EVa€NCE MOnON ,ORPAKUAL SUMMARY JUDGMENT PAGES -
n4r6-3592 -
Respectfully submitted,
WE SIVERA FIRM
A PmtèssionaI Corponfion
BY: /s! Todd Richards
Todd Richards
State Bar No. 16855500
Danyl J. Silvem
State BarN. 18352280
1015 Providence Towers East
5001 Spring Valley Road
Dallas, Texas 75244
TELEPHONE (972) 715-1750
FACSIMILE (972) 715-1759
frichrds@silveaIaw.com
ATrORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy ofthe foregoing document was
served in accordance with the Texas Rules of Civil Procedure upon PIthnfiff on this, the 27th thy
of June, 2014.
Is/Todd Richards
TODD RICHARDS
DuvwAln”tNo-EVmENa M0nm1 FOR PAflTAL SUMMARY JUDGMn PAcE 6 -
45
FILED
DAUAS COUNTY
6/27/2014 5:32:54 PM
GARY FITZSIMMONS
DISTRICT CLER)
CAUSE NO. DC-13-05893
ThENT S. GRWFTN, 4 IN ThE DlSThJC COURT
Planfiff . §
§ lOVT JUDICIAl. DISTRICT
§
AMERICAN ZURICH INSURANCE §
COMPANY §
Defendant § DALLAS COUNTY, TEXAS
DEPENDAI’(Vs MOTION FOR SUMMARY JUDGMENT
TO Thffi HONORABLE JUDGE OF SAD COURT:
In support of this Motion for Summary Judgment, Defendant American Zurich Insurance
Company respectfUlly states:
I.
BACKGROUND
Plaintiff sustained compensable injuries on February 21,2012, in the form of a cervical and
left shoulder sprainlstrain. Defendant accepted the claim as compensable and initiated temporary
income benefits (riBs) on Febnmiy 22,2012.
On June 22, 2012, Plaintiff was examined by Andrew Cole, M.D. for a DWC appoiuted
designated doctor evaluation to assess maximum medical improvement and impairment rating.
Dr. Cole determined Plaintiffhad reached maximum medical improvement on April 26,2012, with
‘a 0% whole person impairment rating.
Plaintiff disputed the designated doctor’s detenninations regarding maximum medical
improvement and impairment rating and a contested case hearing (CCXI) was held on January 24,
2013, to decide the following disputed issues:
DEWNDAI4T’S Monow FOR &JlbWARY JUDGMENT PAGE 1 -
TRIcJl76357a
46
1. Has Plaintiff reached maximum medical improvement and if so on what
date?
2. IfPlthnfiff reached maximum medical improvement, what is his impairment
rating?
After hearing the testimony and reviewing the evidence, the Heating Officer issued
a
Decision and Order that Plaintiff reached maximum medical improvement on April 26,2012,
with
a 0% impairment mting
Plaintiff appealed the CCH Decision and Order to the Division of Workers’ Compensation
Appeals Panel which affirmed the CCH Decision and Order in favor of Defendant
Thereafter, Plaintiff filed this lawsuit seeking judicial review of the underlying CCH
Decision and Order and Appeals Panel decision.
The undisputed evidence establishes Plaintiff reached statutory maximum medical
improvement on February 26,2014.
II.
BASIS OF SUMMARY JUDGMENT
Defendant is entitled to ajudgment as a matter oflaw on Plaintiff’s dispute ofthe designated
doctor’s maximum medical improvement and impairment rating certification since said
determinations became final after Plaintiffs statutory maximmn medical improvement date.
in.
SUMMARY JUDGMENT EVIDENCE
In support ofthis motion, Defendant relies upon the following.
• Designated doctor report of Andrew Cole, M.D. (attached hereto as
Exhibit “A”);
• CCH Decision and Order (attached hereto as Exhibit “B”);
• Appeals Panel Decision (attached hereto as Exhibit “C”); and
• AThdavit of ffichelle Cabmiles (attached hereto as Exhibit “D”)
DEFENDANT’S MOTTON FOR SUMMAItY JuntxNr PAGE 2 -
TR6fl
47
we
SUMMARY JUDGMENT STANDARD
Summary judgment is proper when there is no genuine issue as to any material fact, and “the
moving party is entitled to judgment as a matter of law.” Ta. R. Civ. PIoc. I 66(a)(c) (Vernon
Supp. 1998). A defendant is entitled to summary judgment if the summary judgment evidence
establishes as a matter of law aplainiif cannotrecover upon his or her claims. mx. K Civ. PRoc.
166(a) (Vernon Supp. 1998); Center Realty. Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). A
defendant satisfies this burden by either negating one essential element of each of the plaintiffs
claims or establishing an affirmative defense. Ii Once the defendant shows it is entitled to
summary judgment, the burden sbils to the plaintiff to “put on competent controverting evidence
that proves the existence of a genuine issue of material fact” in order to avoid summary judgment
• Id.; Hail v. Stevenson, 919 S.W.2d 454, 464, (rex. App. — Fort Worth 1996, no writ).
V.
ARGUMENTS AND AU’mORnwS
Plaintiffs challenge of the designated doctor’s maximum medical improvement and
impairment rating certification fails as a matter of law.
A. Applicable Law.
• Burden of Proof The party appealing the decision on the issue described
—
in §410.301(a) has the burden of proof by a preponderance of the evidence.
See Thx. LAB. CODE ANN. §410.303.
• ConsidenUon of Appeals Panel Decision In a thai to the court without
—
a July, the court in rendering its judgment on an issue described by
§410.301(a) shall considerthe decision ofthe Appeals Panel. See mx. LAB.
CoDE ANN. §410.304(b).
D€FEI1DANr’S MoTioN FOR SUMMARY JUDGMENr PAGE 3 -
48
Evidence Except as provided in §410.307, evidence ofextentofimpairment
-
shall be limited to that presented to the Division. The court or juty, in its
determination of the extent of impairment shall adopt one ofthe impairment
ratings underSub-chapter G, Chapter408. SeeTEx. LAB. CODE §410.306(c).
The undisputed acts establish that the only impairment rating presented to the Division of
Workers’ Compensation is that of the designated doctor Andrew Cole, M.D. Accordingly, as a
matter of law, the ffial court has ho greater authority to re-evaluate an impairment rating after the
statutory ivilvil date than the Division. Center Insurance Company. Successor to Business Insurance
Companyv. C&Polli#, 242 S.W.3d 112; 2007 Tex. App.
VI.
CONCLUSION
The summary judgment evidence affirmatively establishes that the only maximum medical
improvement and impairment rating evaluation presented to the Division was that of the designated
doctor and, as a matter oflaw, the Court must adopt that certification since Plaintiffreached statutory
maximum medical improvement on February 26,2014.
vu.
PRAYER FOR RELIEF
WHEREFORE, PREJvUSES CONSIDERED, Defendant American Zurich Insurance
Company, respeethilly prays that this Court set this Motion for hearing, that upon hearing the Court
grant the Motion thr Summary Judgment Defendant flwtherrespecffiilly requests all reliefto which
it is otherwise entitled.
DEFENDANT’S MOTION FOR SUMMARY SUDGM&C PAGE 4 -
flkJfl3i
49
Respecthilly submitted,
THE SKIVERA FIRM
A Pmib.ssionaJ Corporation
BY: 1W Todd Rithards
Todd Richards
State Bar No. 16855500
Danyl J. Silvem
State Bar No. 18352280
1015 Providence Towers East
5001 Spring Valley Road
Dallas, Texas 75244
TELEPHONE (972) 715-1750
FACSThE (972) 715-1759
uichardscsilvera1aw.corn
AITORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a tue and correct copy ofthe foregoing document was
served in accordance with the Texas Rules of Civil Procedure upon Plaintiff on this, the 27 day of
lime, 2014.
1W Todd Richards
TODD RICHARDS
DurmArff’S MOTIoN R SUMM.4xv JUDGMENT PAGE 5 -
50
01/12/2013 12:47 FAX SILVflA PIR
Ia,003
CAUSE NO. DC-13.05893
WENT S. GRIFFIN, IN ThE msmia COURT
-
I
V. ioiJucutrnsnn
§
AMERICAN ZURICH INSURANCE *
COMPANY §
Defeala * DAllAS COUWlY, TEXAS
Eusnis RRCORBS AflThAVU
STATE OP ThXAS
cotmwopQdlu
BEFORE ME. the undersigned authority, pcrsontl ly appcarcd
—, who, being by me duly sworn, deposed as thilows;
My name C n t1&. ( £iifrst I am over twenty-one (21) years ofage,
.
of sound mind, capable of making this affidavit, and personally acquainted with the facts herein
Tam the Custodian of Records r Andrew Cole M.D.. Attached hereto aim !JL.
page(s) of
records from Andrew Cole M.D. concerning Treat S. Griffin. These said &page(s)crf mcords are
kept by Andrew Cole MD; in the regular cowan of busiuc said it ws the regular comae of
business of Mdrcv Cole M.D. for an employee or repmsenntive of Andrew Cole M.D., with
personal knowledge ofthe act, event, condition, opinion, ci diapods recorded to make the records
to transmit information hacof to be included In such mmnorandtmi cc records, and the records
I0
were made at or nan the time of the act, event, condition, opinion, or diagnosis, orrennnaMy soon
thereafter, The records attached hereto are exact duplicates of the originals, and it s a nile nol to
pennit the original Eeoords to leave the mcmises:
on this It
day of
MV COMMISSION ExPthtS: c*-i&4(3ofl
— ‘S
52
__
, •
teSs Di adment of k*unnts
Dl*SMW0I$Wcompaewflcn
7611 MlhCflaDgbe.thaaIoO.we4,
kfllX W44-*W
us (2. iqtc,q-
(600) 2524081 Ønie •mi
490-1047 tn
port of MedIc’ijaIuaflon
,gfl -
-
-
nd%thb npM S Ta. Athiiffihfrfl Cads (TAC)fl.i oun nh .a.iba4
Dar C Dwsá byTmaq dls Tmakç DONS p.dp,g Ds
B ‘—‘
—
a4—4
MewrMCr2’setedeu RUE Dana cwov.d W IfCwC tomta UMh wt*......p1
ICTh Jansat LL.Ata W 28 TAG 91*1 Ia 19a meat. niva — be
as. mWIt Ooor m.euo,
kite .bcdr8w ‘maa3 4.3mi.
64r—
wrrrn.!S_ m/1
It IflISWIIVfl -,_,_Ifl ‘S.d NI WSI1, — e0 14041 OW toSofl - I
- - -
ai n.an oi....,.M (CIWat Is e.Seat a aWti. based tçai ,.....cfl , fl. 1*4*
ra*miflatigP*nrnmmy to .7 b*ayrmoJ.er ....... be .*4-t.
swamp learn lilac ot (1) tha sit or the Weth na afifle date thit temporary bloom banella (tEe) begmi Ii CW or
0 the del. to wiidi MeAl ogtided by TDI.DWC purajait t$Jca Labor Code $O8.I04.
a) Yea, lcaQ, that the relélad DSrAWitRY1NJCUNICAI. flik cow awq on
b..pre.pe#ndat$ at have hi*idid dcciqltlc ri*g to Pd. caRdon hi S. prnrmUa - OR.
-
flN lcmbUNttheentØoyaaUa NOTmS04M Waaleeq,a.dtorefli WMloiboA_I_1
The ,enon Urn employee has not reached MSM I doaanaNad hits attached nwatly.
Mole 11* bat P4 on siwkve. m.dn .WCba a oiSy 1*11 dose rmt fltr 01 nfl I rio eiUUed tosnedea ba9u. L
N.
U. .l$fayes Sm. meshed SThI, MoflaSS.r emØaye. pritaneW te...L.3n • compinite Winy.
lnipalrmaM’ man any ntoidc or Relational abnormally ca lose edetlng after MMI that reaMs from a aompna$. hny at ii
pcwuned to b, permalere. The bWMg that h7lpakmmit ade*s must be made based upon obØSe dWosI S labarieiy i*is nrns*,0 ,
Cl hlnracI rflUd% from a awrçanaabls rEtRy, based tca,, cowatenl oweaw matal addeice 11* la rdeveiwfly coi* a
a daiWed doats, Qtfl Wrme on hi. eu*dve spØonw pezodrnd by a
e)fll ce9,ffuaI Urn astoya. don not Isv. ssy,,..,...d k,..%mit as moult ords eonipeIse bfly. OR. -
b)gjj cs*thMfl .ao,fl bapewsiw hlwbn Ni tAlc! Sw coclwensWa II*ay. its nnp..n4 Inwfl,s I , dhv—_a
7belflnad hi socoidsic. with the raq*emerda otIs Taa tact Code and Tat Adireftkje Code. The attuned ana5ve j,
and docunflllon used ki Sw osilalon ot Is frripemnent mUng assigned usbg the epopdale tøn. figwn, or woikiben froth the ftflowing•
edlon of hi. Q4e MIs E%Wue&a WPema’s,W Avwakmere published by the Mrndoan Medoal Macdalton (M1$O:
OW* educe. aeoctidjih*Ig. Pebwsy 1989 -Oft- —
to May 10.2000.
• turthadlion, i’ r, Y wt pitng. Ixtiaw correcuons cit onare’ Issued by the AMA
Nfl no fl*n1eatoaQ%4eriCrrg. A *dor i fl —
en 7alimag rldtt kidudog 10% mfl, Wfl5
1ArfSiIRir;iLcEL1j
niH. If an hrtialnnr rating knan Halgtt I ce.% that I have coirçleted the mquhd I’I.il, aid bathig end tuwa erfl cadificationby
esdgn Inwabmva mfr 1,8w Teas workfl catmmuttoji intern or have $ceWad spear pwidalon by 1Th to tidily MeAl and aealwi
btçekaiad ral*tg. I caiders4aid that maldog a a dan or,qself is a nfl that can intuIt in fines
hwacnrnerl aid mflutioii O(U* raped.
I R I AGREEI
I AGREE I
I DISAGREEwITh thsM.do SIfltelpakmet -Qft
I DISAGREE vdlh the erpthmere re*q asigned by the cedlttgd4,
Claim Ii a clIme that can j
I miirnimuu
onn own Ps1. 1042
53
______
•1
ThflJJflNCE
ilLS a. mo ty-p, fl 71235- —
June 04, 2012
ANDREW T. COLE NO
4525 N AIRPORT FW STE 590 Enipleyee GRIFFIN, ThENT S
OWCNu.: 1219269950
IRVING, TX 75062—cB
— ANLRICAN ZURICH INSURANCt
-
CarrkrND.: 822180763500Q10121
Dateoflnjury: February 21, 2012
Empleyer: NM-GREEN CO
Iran 13-Pep.... W_J1i..-
itesnhl - lir.&.a Douft kifrnn.tii1_ -
LfcaonNwthc mmwzooinu
Telephaic Nanba (97Z 670.5200
Jun. 22,2012
-
ItOO?M
c-i imzDxaiz, otpjp C Detent UeabWty olUt au$amo ta b
Q Ddua*e the ad dthe ailcte’s compensable
C Detunn1lethvtheeo1pIo)tfldlnbflftyisa dimcg
tanifl .ttngDocsrwtt._a
Doda EDWARD nAiiK WO(Sm MD
UocenNaaba P1064 - Q Ot (S It bsuee)
Tetephar Ibnbs (94I 484-700(1
MOTh TO ThEATIJ(G DOCTOR AND CARRIER:
Said aedlel raiaih to correqxzdeioe adfla mzrevaso side.
COMMIIONER ORDER
APPROVAL OF REQUEST FOR DESIW(AThD DOCTOR flAWNWIIOH
[It Tarn frmance. Division of Woskezu’ Compensation fFDI-DWC) reaivM a request (DWC Ponn-0321 Request for Doslgnniea
P.ia.at ai) o aiim de Ut 1Ø)aan4cd in nun #3 an nt qs
Pocte
wsrreviewed-and-enldatd;- and-the Cocnm haioso f Wotea ’ Compensatio n has q..Ini us ..qK as authorizeflyibx j-a
copy of the DWC Foum4 fl Wed to nqucst this eounlnUon, you may contact
fl408.0041 ad 7Th3)WC mla If >tu do not shady have a
1U-DWV at 1400252-703 1 to obtain a copy.
is uE ODEUD by Ut of WmbW Compensation that panics amend In this Oider comply lth ills dvJeitae
spaiffid below. The acanthisthm oe*fled ...a to this Cidur aid all rcpotta ad ennilcation tied tamE A Ut Ode- coni$)t
1 IU-DW C ruin ad jxmlün of the Tens Ltha Cola Pailte rtsal by pereon to cor4y ith this Or is an
wfl u1qJL’
labor Code or 1D1-DWU rules.
*nlnleflUve violetIon and may subject Ut ento sanctions as authorized by the Texas
attend the cemineden spcdBM It this Order.
Is mJRTflUORDRRSD ThAT ThE WUED UWWVEE NAMED ABOVE ALL Cod. 40LW41 am listel kanti above.
ad ida.t anbor oldie &_ 1etor ass(wwd is aceosd un wids T [shot
Tb arwltmioa ste, time, and location sac 5boa )Ø r—jnatla Ioçk mq ad be changed without — spin) of O
Udi. Inse4 employee ftus or Rubles to çpar ft this oxnmhwtion without good caqse. Ut bismncc cenla may mispmid pamcnt of income
baths lit rieduling conflict penile Ut injarod employee from attending Ut ae±aUon as sdm&led, Urn InJ’Sed anpioy,e must
iA smt—&— Abl..d uramisaUt am
• 1_LJ. gah.ak., by esillag Ike A’—-’-l &tài least 24 bowi pilate Ut
occ withIn 21 calsade- days oldie osigisally examination.
NAMED ABOVE aAIL patm the eamlnetion of jg Injured
IT IS FURThER ORDERED ifiAT ifl DWONAThD DOCTOR âo,e. lie caaâdimi location may net be changed without the prior
employsa at Ut examination location and oa Ut date and time diowa
conflict provat a the dedpaw.1 doctor ten the .a-Iki as athálol, the dajijed
qqrnl of the 1Th-DWC. ifa soheduling Ut • -‘-‘ wocéula A rrohga
the uttamlant by cW the hijured ompice e at lea 24 hr — to
doctor mat a NUt designated doctor ha ad N dvidae14
uiniIcat must occur WIfidi 2) dadwk ysdthc aIhiell y scheduled lIc
thafl report this violation to the 1Th-DWC aid resáednje
• gla three (3) iaoddng days prior to the uramiation, Ut designated doc
— * I. — •—.—I__
54
Andrew 1’. Cok, M.D., SLP.K
OxUpujbadMdWae
WMdGrUpDFW
442W. Abylort Fi 230, frvb 1775062
Pk f972) 5704200 Far (972) 5704933
June 22. 2012
Ct Trent S. Griffin
[NC Manbec 12192669940
lnsurwic,.Cflr American Zurich Insurance Compahy
Dteotl4wy February 21,2012
DESIGNA1E) DOCTOR EVA WATIOtI
MECHANISM OF HLAMY:
This Is a 46-yew-old anlnee who notes that he repetitively on the date of by ovem*end
his neck aid shotider reaching far ties hi Na Wotic a a plmmadet The numbs notes that
while at work he bent N. neck sideways to the left on several occasions and on seveç
occasIons reached under the counter wtli his left hand feeling a pweettssla all the way to the
tips of his fingers. Thereafter he experienced neck and shoulder — and Ices of funollon.
PRSXAWNM1ON DISCLOSURE AND CONSENT
This designated medical evaluation of the above-named examlnee was carried out by myseft.
Prior to the evaluation, the coerninee was ktnned that the Texas Depaunent of Insnnce, the
WodWs Compensation DIvision, was requeetkig tiNe exflnaflon. The aim of this evalua&n
was to detennine an kiupeinnent rating, based on the American Medical Macelation G&14nj2
the Evaludon & Permanent lmnathnent. Fourth Edition. ft was alec explained to the eXamines
that this ineeung was for the purpose of en objective assessment only and not for care,
treatment, aroonsultalbi. Themftm, them would be no doctor-patient relationship established
as a result of this evaluation. The exfliee fully understood the conditions of the evaluation
and gave fiffi consent for the Interview and medical evaluation. This result of this evaluation is
based on Information provided by the examlnee, Na physical examination, and a review of
medical recoida Mdlfional testing will be obtained by the designated doctor in this case. We
will obtain a consult and bilateral upper extremity EMO nerve coiflidlon velodty study. We wo
also obtain a shoulder MRI.
HiSTORY OF PRESENT INJURY:
11* 46-per-old examines was Initially examined and noted at th. time to have decreased
range of motion of the cervical spine. Ha had trigger points prnesl In the parsepinal muscle.
There was spasm of the ceMoal paravedebral muscles noted on the left at that time. There
was decreased motion with tenderness of the shoulder; however them was no HawkIns or Neer
sign noted. Neumlogic examination noted at that time normal rellexes hi the upper and lower
extremity end cranial nerves were noted to be intact; however there was noted to be a poeftive
Spuding test on the left. Still, motor and sensory examination was noted to be Intact at that
time. The diagnosis was cervical radicuiltis with a sprain and stain of the left shoulder Initially.
The patient was prescrted physical therapy and was placed on mtdUple medications, siong
with were Flexeru, Ibuprofen, and tmmadd.
The exmnhiee underwent a ceMcsl MRI wNch noted 023 disc bulging without masseffect,
end CO-i isif pnnediwi dIsc 6-mm pmfrueion which m&My compressed th. ventral cord, No
EMO was obtained or available for me to review at this time. The patient had a cervical x-ray
which was unremarkable, accodng to a report, and a left shoulder x-ray which was
unremwkdie according to the report.
55
Trents.GrlN,i
Page 2
Deq*e conamyalive trend the examines notes no sigr*aM ciwige In smiptoms.
The t*meWs case tmderwed a peer review on May 2, 2012 wIthout float eenatj
wh(th con&Med of a xevtew of medical recaile. That peer review noted that the exam thee had
siStered a cervical aid shoulder strain and that the present fflngs t continued were related
to undedyfrig degenerative dies in the spine. The findIngs hi the shotider were noted to be
ptknarfty related to the cervical preexisting findings and also to underlying degenerai
changeskitieshotider. ShouiderMRihaeyettobeobtahied. Mthedeslgnateddootor
ewilna&n the examhiee notes that he continues with paraspinal tenderness to this date a
has experienced severe pain hi the neck He states that he lies occasional numbness and
thgling from the shotide, to the leftband, worse with activities. The examine Is not working at
this *ne. It Is noted that the paled has had a perfoanunce evaluation and was noted to b
perfonning at lea than sedentary POt and that his Job reqa*ed med*an POt
PHYSICAL B(AMINATION
Gennh The esn*iee is wel developed and in no acute difles.
Musculosbiew: The shedder afliatfon on the left side notes deaeaeód re of motion
of flexion and adduction prlmfl. The fiedcn Is level 130 degrees end adducuon Is Umited at
140 dogma Rlgl*&ded shoulder examination Is essenflaliy normal with fiedon of ieo
degrees and adductian of 170 degrees.
Mthough them Is no noted complaint of a knee Injury, the request has required examination of
the Imee with noted 130 degrees of fie,don with full extension, no instability, and noted
negative MoMny. negative pIvot negative Lachman, no swellk, aid no tenderness. There
was no popping noted. It should also be noted that on the left and rVt shoulder them was
negative Nw and negative Hawkins sign and negative apprehension sign.
Cervical SpIne: Examination of the osital spine notes decreased cervical fie*n of 4Q
degrees, decreased extension of 45 degrees. There Is essentially normal left hbwl fie,don arcj
right lateral fiedon of 40 degrees on both sides. Left cervical rotation notes 60 degrees and
right cervical rotation notes 50 dogma There Is a lefklded posItive Spwfing test. On the left
side there Is tenderness aid pain over the shoulder posteriorly extending into the paracervical
• muscles.
Neurologic: Oeep tendon reflexas we bHsterally equal In the çper m&emlty and 2+. Strength
Is steraliy equal and 515. There Is decreased sensation on the ukier aspect of the hand and
there Is decreased sensation below the etow on the volar siflce of then
IMPRESSION:
1. CervIcal sprain-resolved.
2. Left shoulder strain — resolved.
3. UnderlyIng cervical and shoulder Impairments that need to be further evaluated and are
most likely hi my es*nation chronIc and preexisting, it should also be noted that there Is
no evidence that the repetitive motion on the day of Injury ted to any aggravation of this
underlying preexisting sat of conditions.
56
Tmnt8. GMki
Page 3
1
DEEaWINATION CF MA)QW.JU MEDICAL IMPROV9BIT (Hal. WAIRMOIT
I am obtfl shoijier MRI and EMG and consult to fluly evakate this mcanthee.
Prelimlnáyto 1* dii beWig obtained, my findings am ccmpatlNe with soft tissue atralim to the
neck and 8hoder as woik misted with preexisting degeneralke conditions of the shoulder and
neck cauêb fleee* remaining symptoms,
An iisdt, the piled Is a MW with a 0% whole person biipalnneflt arrelated to the wo
I4uzy. The die & MMI Wit be placed at 0412612011, the die of vIeR to Dr. WobkPs office,
which noted no significant changes. This Is approximately WED mordhs from the e of
and I. My ccmpetit,Ie with reach Don of such soft tissue sflka
I di be obt*ffig en EMG and shoulder MRI and will provide an adde,#Im alter these n
obtied, if they alfect my decision as to MLII and whole pemon hnpakmfl I dl so notify in
the addaidian.
AUDSWUWCONCWS1ONS ON W22Q12 FOR ADDITIONAL , t tWIG:
As of 612812012 the examinee has been unable to schedule both EMG and MRI. He
notified of an appoinflent on 8126112, but was unable to attend and has not rescheduled. As a
result, since I can not obtain additional testing Within DWC time limitations, I will finalize my
report with dedilone noted abova WI on 412612012 and 0% thipefrment That Is calctda
ORE Category 1,0% for the neck. Them is a 0% ImpaIrment assessed for the left shoulder as
the e of motion deficits would not qIy to a soft tissue fli this long after Injury, The left
lame Hated on 0WC32 has M raxe of motion and is therefore 0%
The options rendered In this case are the opinions of the euator. The ekjellon has been
conducted on the basis of the medical examination and the docanttlon provided with the
assumption that the maisdal Is true and cored. If more Information becomes available at a
later date, an additional servkekeporlhoconsldemtion may be requested.
Such Information may or may not change the opinions rendered In this evakwtion. This Opinion
opinion does not
is based on a clinical assessment, examination and documentatIon. This to be made or
carte, par se a recommenda tion for specific dahlia or administrative function
Medicine Is both an art and a science, and although the examinee may appear to
be 1ff to
parhoipate In various types of activities, them Is no guarantee that the IndivIdual will not be
refrjwed or suffer addNonal Injury as a result of pwbcØl*ig in certain actMties.
tz (%
Andrew it Cole, M.D., M.PJL
Board Certified, Oooupatlonel Medicine
TX MD H1064
Texas Ce#fiet Designated Doctor, lmp&rmei* AOL Level II
AIC LBLMWm, Ot 06t2A112, V. 06126112. J 602683
57
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Partially biyalld on K Lateruj mexion only, and it Is noted patient bpmvcd with repeddcia Mild pacal deficits
In
all pluwsormotloa.
Amvleaa Medical AradMicn Ow die Evabafa of Pnwa hnpalmtii, PIMp EJtb, -.
C-i MEDICAICROUP
4425W. AIRPOWF PWY S1N7! 2*) IRWNOTh 75062(9Th nO42
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59
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Texas Deparbnent of Msumnce
Division of workers’ Compensation
RECEIVJJ
‘A là
7551 Mao Cer 0dm 8W1a 100 AitS, T.xas 787441809
(612)6044000(512) 6044001 tmx v.atatLua
STATE OF TEXAS §
§
COUNTY OF TRAVIS §
CERVflCAT1ON OF IN$TRUJIENT(S1
The Commissioner of the Division of Workers’ CompensaSon, as the chief administrative
executive officer and custodan of records of the DMslon of Wodcerw Ca.npensatn has delegated and
to the undersigned the authority to certthj the authenticity of document filed with or mafritalned
byor
within the CUMOdI& authority of the Chief Clerk of Proceedngs for Hearings of the DMslon
Workers’ Compensation (DWC) of the Texas Department of Insumnce frOl). of
Therefore, I hereby certify that the attached documents are true and correct copies
of the
documents described below. I further certify that the documents described below are flied with or
maintained by or within the custodial authority of the Chief Clerk of Proceedings for Hastings of the
Division of Workers’ Compensation of the Texas Depathnent of insurance.
Hearing Officer Decision on Docket Number 12-192699-01: Trent Griffin
v. American Zurich Insurance Company
IN TESTIMONY WHEREOF, witness my hand and seal of office In Austin, Texas, on September17,
2013.
ROD BORDELON
Convnlssloner of the Division of Workers’ Compensation
BY: tu-tliAwr ii
S
Tiffany Duarte
Chief Clerk of Proceedings
RevsI 7fl1 I
64
0 tn
TEXAS DEPARTMZNT OF INSURANCE
DWISION OF WORKERS’ COMPKNSATION
SI preflere baNe, con una persona do habis hispana acerca do esb
$ correspond.ncla a do su reclamo, sirvase Ilamar al 1400-252-7031.
January 29. 2013
AMERICAN ZURICH INSIJ1ANCE Co DWCNo 12192699
14o0 AMERICAN UI ,, •,
SCHAUMBURG. IL Loig6—iogi 1219269901CC
Ca..h1Ncz 522180763500010121
Employee: ThENT 5. GRIFFIN
dO FLAHIVE OGDEN & LATSON oyer WALGREEN CO
Date of
IflJwT February 21, 2012
The Hearing Officer has machod a decision and entered an oithr hi the above referenced claim.
CesothededslonandflotsheetamatedexplalnlflgWhattodoifyoUWanttoappeal
tNs
Hearing officers decision or lithe other party appeals the decision.
Please note that If the Carder has been ordered to pay benefits hi accordance with this decision,
those benefits, unless othetwise note% Include both indemnity and medical benefits.
It you have questions or require assistance, please call 14O0-252-7O1. To expedite the handing of
requests for appeal and responses to requests for appeal, oil corresponde.ice should be ad&essed to
th
CHIEF CLERK OF PROCEEDINGS, HEARINGS
TEXtS DEPARTMENT OF INSURANCE I)j44fti,...
-
DIVISION OF WORKERS’ COMPENSATION 0tb, 4&1
POST OFFICE BOX 17787
AUSTIN, TEXAS 78744-7767 “2<
Sincerely,
c€W’ 0iw’
REF Texas Department of Insurance
s
)RO3m-)
65
c0NEu3ENTJAL
Tda
TEXAS DEPARTMENT OF INSURANCE
DIVISION OF WORKERS’ COMPENSATION
ThUD
DALLAS FIELD ovncz
DALLAS,TEXAS
TRENT GRifFIN, * CH
CLAIMANT
DOCKET NO.
DA4249269941-CC-DA47
*
AMERICAN ZURICH INSURANCE
COMPANY,
RRIER §
DECISION AND ORDER
This case is decided pursuant to Chapter 410 of the Texas Wodcas’ Compensation Act and
Rules of the Division of Workers’ Compensation adopted thaeimder.
ISSUES
A benefit review conference was held on November 29, 2012 to mediate resolution of the
disputed issues; however, the panics wac unable to reach an agreezneit A contested case
h ng wa Id on January 24, 2013 to decide the following disputed issues:
1. Has the Claimant reached maximum medical imwovemcnt, and if
so,onwhatdate7
2. If the Claimant has reached maximum medical imptoveirt, what
is the hnpainnent rating?
3. Does the compensable injury of Febmary 21, 2012 extend to
include a herniated disc at C6-7 and cervical udiañopathy?
For good cause issue 3 was mnaided to the following:
3. Does the compeimthlc injury of February 21, 2012 and to
include a left paramedia disc pmflusion at C6-7 and cervical
radiculopathyftadiculith?
1
66
CONFIDENTIAL
1t,ode
PARTIES PRESENT
Claimant appeared and was assisted by Valeda Rivers, ombudsman. Carrier appeared arid was
represented by Todd Richards, attorney.
EVIDENCE PRESENTED
The fi,llowthg witnesses ftstifie&
For Oaimc Claimant.
For Cmtla None.
The frUowing abthits were admitted into evidence:
Hearing Officer’s Exhibits HO-i and 110-2.
clahnanfl BxhthiLi C-i through C-il. -
Cath&s Exhibits CR-A through CR-O.
BACKGROI2W INFORMATION
Claimant sustained a compensable hjjtny to his neck and left shoulder on Fe&uay 21, 2012,
when he readied under a cormta with his left arm. The parties supulnd the Division appointed
Dr. Andrew Cole as designated doctor D) to determine mnimnm medical improvement
(Mlvii) and impairment rating (W).Canier accepted as compensable cervical and left shoulder
sinin/snins only. Cinimmif contended the compensable injury also extends to include a left
paramedian disc protrusion at C6-7 and cervical rediculopathy/radicuilfis.
Extent to include the conditions in dispute required proof through expert opinion evidence, based
on reasonable medical prebthilily, with a suffident explansinn of the causal link between the
compensable injury eva and the condidon. This was lacking. The compensable injury is
cervical and left shoulder sprain/strains.
There were two cerdficadoqm. Dr. Cole examined Claimant on lime 22,2012 arid certified MM!
on April 26, 2012 with a 0% a Dr. Andrew Garrett, a doctor selected by the treating doctor
acting in place of. the treating doctor, examined Claimant on August 24, 2012 and certified
Claimmit had not readied MML
Dr. Garrett rated cervical disc displacement and radiailiti&
Dr. Cole rated the compensable injury, plus a left he strain, (this condition was on the DWC
32). He assigned no impairment for left knee strain. He concluded the compensable neck and left
2
-
67
ECONPTDENTIAL
7 LtxCadc
those April26,
shoulder injuries would have resolved two months after the date of h4wy, and he
2012 as the MMJ date because testing physic ian Dr. Edwai d Wolsb saw Claima nt on that date
fbund some impalu nent of the neck
and noted no significant change in his condition. Dr. Cole
ly chroni c and pre-ezi afing
and left shoulder on examination however he thought this was probab
l ce.
Dr. Cole’s certification is not óontary to the preponderance of the other medica eviden
Evat though all the evidence presented was not discussed, ft was considered. The Findings of
Fact and Conclusions of Law are based on all of the evidence presented.
FINDINGS OF VACF
1. The patties stipulated to the follOWing facts:
A. Venue is proper in the Dallas Field Office of the Texas Department of Insurance,
Division ofWo&era’ Compensation.
B. On February 21. 2012 Øaimant was the employee of Waigreen Company,
Empl
C On Febniny 21,2012 Employer provided wetters’ compensation insurance with
American Zurich Insurance Company, Carrier.
D. On February 21,2012 Claimant sustained a compensable ugmy.
E. The Division appointed Dr. Andrew Cole as designated doctor to deterute
maximum medical improvement and impairment rating.
F. The compensable injury extends to include cervical and left shoulder
sprth&a
2. Carrier delivered to Claimant a single document staling the true corporate name of
Carrier, and the name and street address of Carrier’s registered agent, which document
was admitted ho evidence as Hearing Off lc&s Exhibk Number 2.
3. Dr. Cole certified Claimant reached maximum medical Improvement on April 26, 2012
with a 0% impairment rating; this certification is not contrary to the preponderance of the
other medical evidence.
4. The compensable injury event of February 21,2012 was not a producing cause of a left
p&amedian disc protrusion at C6-7, cervical radiadopathy, r cervical radiaflitis and
was not a prExiuchig e of any aibmcanria accelaakm a wrasening of any of those
conditions.
3
68
CONFDENfl4j,
a labac Code
ê4S3
coNaustoNs octtw
1. The Texas Department of Insurance, Division of Workers’ Compensation, has
jurisdiction to hear this cast.
2. Venue is proper in the Dallas Field Office.
3, Øsmma resdjed maybnim medical imwovanent mi April 26, 2012 with a 0%
in4innwRndn&
4. The compensable injury of February 21, 2012 does not extend to include a left
paramediai disc protrusion at C6-7, cervical radiafiopathy. or cervical radiculifis.
DECISION
C1.immt waked ma imnn medical iqwowma on Apil 26. 2012 with a 0% impairment
rating. The compensable injury of February 21, 2012 does not extend to include a left
pammedin disc rothisimi at C6-7, cervical rathailopathy, or cervical radinilitis.
ORDER
Carrjer is ordered to pay bflts in aaordara with iris deciâa the Tens Workers’
Compensation Act and the Comnñssion&s Rules. Acaued but uqnid ixome benefits, if any,
shall be paid in a lump sum together with interest as provided by law.
The tue corporate name of the içsurance Carder is AMERICAN ZURICH INSURANCE
COMPANY, and the name and address of its registered agent fir service of process is
CORPORATION SERVICE COMPANY
Zn EAST 7th STREET, Surrx 620
AUSTIN, TEXAS 78701
Signed this 2t day of Scary, 2013.
Thomas l
Hearing Officer
4
69
ThIS LETTER WAS ALSO SENT TO T)* FCLWWING
:
WENT S GRIFFIN
724 MEANDERING DR
CEDAR HILL, TX 75104-6060
THE SILVERA ARM
TODD ffiCHARDS
5001 SPRING VALLEY RD n.’:,
DALLAS. TX 752444948
INFORMATiON COPIES WERE ALSO SENT T
WALGREEN CO
200 WILMOT RD
DEERFIEW, IL 800154820
OMBUDSMAN
DROS 9a- OS45) An Bpai Oppoamly a,çqqr
41 ggg
70
CAUSE NO. DC-13-05693
WENrs.GWmN. S INmEoJsrRIacouaT
Pblntiff
§ 1O?IUDIQALDISrWCr
S
AMEWCAN WRJOI INSURANCE §
COMPANY §
Defendant § DALLAS COUNTY, TEXAS
AWwAVff 0€ RJCHKI SE CASRAI1
STATE OF TEXAS §
§
COUNTY OF DALLAS §
BEFORE ME, the undersigned authority, personally appeared RJCNELLE CABRAI..ES,
with, upon oath, deposed and state&
My name is Richelle Cabrales. I am over twenty-one (21) yrs of age. I am of
sound mind, and I am filly competent to make this affidavit I have personal
knowledge of the facts contained in this affidavit and they are all true and correct
I am employed by Sedgwick CMS as the workers’ compensation claims adjuster
regarding Trent Griffin in connection with his compensable iijury on February 21,
2012, while employed by Walgreens.
Trent Griffin began receiving temporary income benefits on February 22, 2012 as a
result of his compensable injury. Accordingly, his statutory maximum medical
improvement date is February 26,2014.
Further, afflant sayeth not.
RICIIRIE CABRALES
SUB5CRWED-AND SWORN TO before me this day of__________ 2014.
NOTARY PUBLIC, State of Texas
PUO DC
4DAVET QaCABRS PAGE Sow -
‘tt..’ ca!ois
My commission expires
tO/Z32012 09:57 PhI lO02/G2B
MARTIN R. STEINER, M.D., F.AA.N.
DIPWMATE AMERICAN BOARD OF PSYCHiATRY AND NEUROLOGY
8303 &idll ewwaytIb 836 • Fbstan, tea 77074
713-7714191 • Far 713-7714115
OdoberiG, 2012
Mr. Jeremyk twin
dO The Silvers Finn
6001 SprIng Valley Road, Suite 1015
East Providence Towers
DeIas TX 75244
Fax& (972) 715-1759
‘Re: TRENT S. GRWFR(
DWC* 12102699
Date ofirgury: 2(2112012
• EmØoyer W&gmens
Canler Amedomi Zurich h*innce Company
GI&m# 30120223576
I have reviewed the following records you have provided me regaidhig Trent Griffin.
.1. Employer’s first report of injwy.
2. lftkdcers’ Compenealion Injury questionnaire.
3. Walgmens Disability.
4. NotificatIon of hr kjcomebnNpeyment-317I2012.
5. NotIce of theputed issues 5M201Z
-
6. Notification of Ma*nxmi medical Improvement -612912012.
7. NOtifiCation of suspension of indemnity benefit payment
8. WoI+Med Pain Management 2(2312012 through 81241201 a
-
9. Cedar Hill Imaging MRI of ceMcal spine 312912012.
- -
10. PhysIcal Performance Emm-2l24&012 through 5I291201Z
Ii.. Pew revlew-Ph114 Osborne, aa-wmoia
12. TraM S. Griffin’s response to peer revlewby Dr. Phflhlp Osborne 511412012.
—
13. Peer revIew— 61612012.
14. Peer review— 61712012.
15. DD evaluation Mdswr t Cole, M.D. flit
- -
16. interpretation of neurodiagiioziic teat Edwin Green, M.D. -712012012.
-
NATURE OF INCIDENT: On 2(2112012, TraM Griffin was pertrnfl It duties as a phamacM
wtwn he noticed a ‘poW in wtk3h he the’ humedatety grabbed Na lee slimMer, At thattime,
he did not think anythIng of ft end continued working. He had to rh down below the counter
again and this time the pain was wome. This time he had to ab for Me ei&e left erm. He
mpodedtha he was unable to tat fl heed to the left or right becetse the ji would become
unbearabb
LI
10/23/2012 09±57 FAX -
OO3/O28
Pa: WENT S. QRIFPIN
October19, 2012
Page #2
He was seen bY his PCP. Dr. Paid, ‘Mio prsecrthed nbtm4s
Dr. P8W thfl tPflIY mimd l*ii to a wock anj phisldn
I’-p api pain mffevn
Consequently, on 212312012, It Griffin a seen at a VWiltMed Pak Insgern
ent Chit He
a evahwted by K D. Holder. D.C. end dlegnoeed with a cavlc& mdctAb as well
and stain of the as a sprafri
left elnthjor. Physical thempy wee prescribed.
aaseusndy, It Griffin has been naiad at the WoH-Med Pain Maiagement Cihilo
212312012 thraigh 812412012 wIthout a-iy slanilicat Unpmwmet from
An M scan of the cervical spine performed on 3f2912012 a interpreted as showing
paremeikn 5 nn disc pmthmlon at C6-C7 that was noted to be compressing the veifl a left
• mete a no mettn of any nerve tuot compression. coid.
-
An MRI scan of the left shoulder was completed on 612&2012 and demonebad attenuation
the distel spaspinaus tendon. No ten were I dUld. A aid sii,detld bLñlth a noted of
to be present No labial tears we noted.
Vatous physical peitnuance eximinatiom ware performed on a mcnfliy basis tom 2(2472012
ftcii 4MtWIZ A ftmctional cepacily evaluation was performed on 5f2WZi2. Dw9
ttr eseluaffons, them a no dIñIcaI hnpcovsmeat noted. those
On 5P212012, (It Philip Osborne performed a peer iovlew mid detennined that the extent of
flkywntha&aca6cd a4st4ithrsb
-Two additional peer reviews ware performed to determine wtather psychological testing was
metaii3 necessary for this Uijwy. 8* peer reviewers delemilned that a flee-hour
psychological testing battery was not medically necessy
On 612212012, Trait GdMn a evaluated by Dr. Mdiw 7. Cola Dr. Cole determined that
It GrIIM had readied rriadnuim medical Improvement as of 4fl612012 with a 0% whole
person impairment
An elecuodJagnoatic study a performed on 712012012 and kwprdad by Edwin Gasp, M.D.
Dr. Gean btflbUd that ifs kik.n(a$on a based on his indepsncbt m*Aow a4 iarpceton
& data provided by th. testing company. Based on the findings & 2* fbdllelions end It
positive slwp waves WI tie left triceps muscle as well as 1+ posftlveshaw waves in the left
•Lkva muscle, 1+ tbllMIons aid 1+ positive sharp waves in The left prc’tcr fl muscle and
2* tifllafions aid 1+ poslthe diap waves in the left CS pnspbid naisdes as wall as 1+
Ibhlations and It positive iwp waves In the left C6 parasphal musculabn, Dr. Grew
conthided that ils evidence indicated a mild early left-aided mid cervical (C&C8) mdlcubpethy.
1k seen fl’ijy sueSd *Uc& cflation *4th a centel MM *ids
85
OU4/D28
10/23/IOU 05:58 PAZ
ne mar a GRWRN
Ober 1% 2012
Page#3
Besed an my mvl of the above data. I have died Uwt*ig opkibna
trerd Giti at most welshed only a venice) and l shoulder skein saidary to his
bending down on two occasions aid tznffig Na heed to the left on 212112012.
2 Pwasplnal muscle snins we the type of injuries that would be ccpeded to resolve
spanWneouMy in #6 neka Consequently, aiy teabnerd beyond ek weeks should be
considered lmmasonable and unnecessary. (Re4renca Official Disability GddeIInea
MD Guidelines).
a This opinion is supported by the fact that the cervical MRI study performed on Trent
Griffin cii 312012012 demonstrated only a 5 mm left paramedlen disc protrusion which
was not shawii to be compressing a cervical nerve root at the CO-CT level. Compression
of the venbal eØnal cord, if ft were siwflflcsnt would produce signs aid symptoms of a
• cervical myslopathy. Them is no medical evidence that Trent Gdffin was suffering from a
cervical myelopathy (pressure on the cervical eØiial cord) at C6-C7 leveL Them was no
medical evidence Ut he lied lower a’&i.sê mo wee1m.sa hyperacthe reflaces,
positive Bthhski signs or presence of a sensory level. Likewise1 the Mffi scan oft. left
shoulder ldj aiy objethim thnonnafity that could be eseodated with his
bending tiwad and tuning Na head to the left Activities such as described by Mr.
Griffin would not came miy damage or harm to the physical sthin of tie left shoulder.
4. in regards to the interpratlon of the netrodiagnostic study peilonnod on Titnt GdI&i on
712012012. them am a maiiber of Issues that need to be addressed.
A The Official DIsabiRly Guidelines Indicates that elecntdlawios& studies should be
performed using pmtocofa established by the American Association of
Elecbndlegnostlc Medicine, American Academy of Neflogy and the American
Academy of Physical Medidne & Rehabilitation. These ddaIffies thdlcate that
eledromyography (neede examination) must be perfonned by a physician especially
trained in elecbndlagnoallo medicine as the tests are simultaneously performed and
Intezprelsd. That physician should be at the bedside if not physically performing the
test himselt In this cese, Dr. Edwin Omen specifically stated that his report was
based on an Independent review and an Interpretation of data provided by the testing
company. Clearly, he was not in close physical prwimlty with Mr. Griffin at the time
the study was being performed. Consequently, th interpretation VicISS the
expected standard of owe in providing lnterpietatlons of &ectmdlagnoatic studlea
The opinion has been substantiated by the Texas Medical Board which has
reprimanded a leest one PIWSIdIn and Imposed en aknhsflhive pawity for
parfonnung eledm4fleØioiflc interpretations and not being ØiØcaRy pmeenta the
thie the study being canted out (Sea Proler betre the Texas Medical Bawd)
.._
B. Even If the eletho iostIc study was performed conec*ly, the results Interpreted by
Dr. Ethvki Green do not coimlate with the clinical ecenerlo. Ct seen stated that the
stay showed evidence of a mild early left-sided mid oendcal (CS-CU) raltulopathy.
The study was patluhld an 712012012. The k4wy stnly occwied five months
earlier on 212 112012. TherefOre, W kideed Uwe ta evidence of en early
WIáal nid oeMc mmaiopelhy, ft would fl be .flnrAd with si leciderl that
occuned five months a.
86
10/23/2012 00:SR RU O05/O28
Ha WENT & GR1 -
Octcbr19, 2012
Page #4
Fwtheanoro Dr. Green’s b*rpmlauon s that & a riopethy at CS-CB. The
Iwel dose not con’etete with the M study pvIIed on Tbwt Ccml’ ai W91Z12.
• A. noted previously, Dr. meen akungly suggested conelaflon with the cervical %I
study. hi this case, howet the cervical MW study ttmd the abnv ma&y to be at
CS-CT. Coneienlly, ma Is no correkifon between Dr. Goen’s level of C5-C6 and
the MW study indicathig the C6-07 level of Initivema
Additlonally, there was n& evidence of nerve root compme&cn or knpkigement a.
dher the C5-C6 level or the C6-07 la’& 11*1 vmuld lead to doneivalon potentials as
des&bedbyDr.Gresa -
5. In summary, them Is no medicel evidence contained In the records reviewed that Trent
Griffin sustakied any damage or hr to the physiosi athicftn of Ne body seconden) b
the Incident In question. There le no *icW cnlaton between TraM OrI*Ys sibjective
synwtoms and objective abnomialfiea There was no evidence & any ftcal motor
• v.ieaImees reflex lose or sensory loss when Initially ecsmkied on 2a3t2012. There was
no evldnce of any otqedive nerve root compression on It Gdfb’s cervIcal MW study
of 3(2912012 and lastly there wes no evidence of any dethlcal abnumafides at the
CS-C? spinal root level.
6. - I would canvas with the designated doctor, Dr. Andrew Cole, that It Griffin h sO%
whole person impairment and cerlâ4 had achiaved UMI by 4flW2Oi a
I certify that I hold the appropriate credentials to conduct this revIew I received my medical
degree from the University of Ekt* Co$e9e of Medicine hi 1967 end spent one Year as a
medical Intern at Ben Taub General Hospital from 1967 to 1968. I then spent flee yen es. a
neurology resident at Motmt Sinai HospiW In New York City. Following cornpisUon of my
specialty Usirting In Neurology, I spent two years as a staff neurologist with United States Air
• En aid then beginning In 19731 have been hi prWfl practice Wi the specialty & Neurology in
Houston, Tacas to the present time. I have bean performing peer-ievIvs elite spprwdmately
1994 supported by evidence-based medicIne. I hold en active and unresUtled Texsa license
(E0154) and I he experience with wodce’s compensation claims In the s of Texas. I am
board certified hi the specialty & neurology by the American Board of Psydiay & Newology. I
am qualified ass designated doctor and hare maintained my framing In use &the 4’e&uon of
the AMA gtkee to the evelastion of penialent lmpafrment through courses certified by the
Te Veparbiiafl of knn I certify that I hold the appropriate vredeiUets as defined by
28TN15O.1 to pw&4m eNs peer mvlw. I have no conflicts of bared hi performing this
11 above opinions are based on the information that has been provided. Should any additional
* htnnatJan become aallable, I reserve the right to revise my opinions accordkay.
I heim besed my opflons on reasonable medical pmbdHfty.
Ifl.ibeofa’iyftflwsavlcnbyou. p--&dordIaebcaL
Merun ft Steiner; MD.
0104
87
RICHARØ A Suss, MD., PA.
5938 besco Driv Dallas,fl 75225—1603
DIASIOSflC AWGY MW wawoaja.o(cay ceuimia.
Tel (214) 363-5690
En (214) 363-7940
Noynha 26.2012
Jeremy A. Lunn. Re: Trent Gdffln W46 D.oS. IflS/66
The SUvera Firm DWC # 12192699 DIE.: 2012-Feb-21
1015 Providence Towers East Employer: Walgrcrsis
5001 Spring Valley Road CanioriAmerlcá Zurich Ins Co
Dallas, TX 75244 Claim No. 30120223576
DearMr,Lunw
At your request I have reviewed imaging of Mr. Gdffia
Cervical Spine MRI, 20124ar-29, Cedar Hill bnaglng
Images: A CD-ROM displays sagittal TI- and 12- and axial Ti- and W-weigbted scquenca
Flndiags At C&7 there is a 3 mm left paramedian disc promisioi that makes bordaline contact
with and minimally ifat Ml deforms the spinal cord, which retains norma] signal while the midline
dma) diameter remains vy ample at 12mm and there is no neural haminal encroachment Also
noted at C6-7 is mild amerior spurrlng The disc rains normal height; and the cervical discs
generally show nonspecWc signal loss. The cet joints and the other tents are otherwise
unremarkable.
Conclusion: C6-? disc protrusion with borderline cord impingement but no compression or
significant stenosis. This pmfrusimi and the associated anterior spunlng.are entirely compatible
with, and typical of1 chronic degenerative disc disease. There is no MRI evidence of acute or
traumatic pathology or aggravation or of anything that can be Etnlmted in reasonable medical
probability to events on a particular date such as Pebns&y 21,2012.
Left Shoulder MRI, 2012-Jun-26, Cedar Hill Imaging
Imagosi A CD-ROM displays axial fl-we4ghted, oblique saglual PD-weighted, and oblique
comesi STIR and PD- and V-weighted sequences.
Pagel
19
L”
\I1
-
- Sr 7km Grjftln, Page 2
Findings: The roWwr cuff and othm regñial tendons thd flgamails re unra,wtab1e The
tegional bony contours and marrowsignal at ni. The glenoid laum is umesxaicthIe That
is no appreciable synovial or bmsal effissIi.
Conchislon: Normal left shou]d& MRL The origiñaliy reported sulecfive and meaningless
assessment of “Supnspinatus distal tendon attenualioC is not confirmed, nor is any evidence of
“bursitis” confirmed.
Sincatly yours,
1W cc/wa a.
Richard A. Suss, MD.
114
B)GWICC mS PACE 3 0? 12
05/0712012 71BO1 AM
EflDEVLERISED JffDJG1NEEVM&4WRS
1iflip0afl
May 2012
L;,,•
MwR friaR PEER REVIEW
Med Ccflm
2001 Bryan Sied, SIn 1975
Dallas,Th 75201 -
Rm CWmwit TIWtGIflI
5574: -XX40fl
CIalm# 301202235760001 -
DCL 2-21-12
mnploya Wfleans Dnzgslnn
Doer Madc hMk
You asked meb do a pee ieeiew on the above nwned dWmanttn ad&
several quEdons posed in yaw over idler.
DCRIPflON OF ThJIJRY:
Per The Erpky&s R, Report of mjun the dalmant reported a woik bi)sy on
2-21-12 wMe etiplayed t Wqreens. On this date, the daimart alIegJy yes
v11ytng a piat)on wbi he aggav his idt shoulder, iSng pWn.
MEDICAL RICORDS AVAILABLE FOR REVI!W:
• 2-23-12 P. D. Holder-, DC, office vtstt
• 2-23-12 X- of the cervical spine patmed Dy Ed Woiski, MD.
• 2-23-12 X-rays of Vie ia odder lnteprei by Ed WoWU, MD.
• 2-24-12 PhysIcal Performance Than.
• PhyMcal therapy on 2-21-12, 2-25-12, 2-27-12, 2-29-12, 3-2-22, 3-5-iL
SflEEU
125
PAGE 4 O 12
051,O71Z012 7:ie:O4AH SED1IDC OHS
• flR.DHalder,DC,offlcevlst
• 3-13-1204P,LP,(IçØamlt
.2, 3-26-12,
• Phvfl thempy on 3-14-12, 3-16-12, 3-19-12, 3-21-12, 3-23-1
3-28-th
• 3-27-12 It 1). Holder, DC., ornct vist
• 3-29-12 MRZ of tie vlcai spine kltavreted by Jams PIl DO.
.
• Fhyca1 thempyai 3-30-12,4-2-2,44-12,46-12,49-12,411-2
• #26-11 Ed Woisld, MD., I*/C-73.
SUMMARY OF RECCRD&
‘dio
2-23-12 R. D. Holder, DC, the dalmait Mr Griffin Is a 46 year-dd p&It er
Irjured his nect and left should
w in)ired at wak on 2I21f The pstlt
diKe petunfng its rumal work dutis. The paUit went to Dr Pet% his P0.
The physidan pribed miale rd and pain relieves and relaTed him to a
Watt Comp pbysTdsi. Casauon The patut is a ptwtn lbrWalgrnn’s.
Hestffesthatwhflehewasatwc,khe thlsrwdcsldewaystotheleltslde
and ried underreath tie cunter with his left hand to pull wnt vls out that
he nded. He immedinly Mt a sharp pain In his nedc that radlatM mit throt4i
hisleftshouideranddownhilsleftarm Into hlshand.The pat1eithed1d
not prev!aLsly have this tpe & pain. Zn all medt probeblity the patent lrØcnd
his neck and shoulder at wait On exam, Nede Deaeesed range of motion of
the cervical spina NyofW bigger point fi&iie bi this atee. Spsm of
cervical paravertelnl mwdes on the left. Ththemlties: Decreased range of
motion wIii tenden of his Iel’t shoulder. Hawkins and NeWs sign w
negative. Neurologkal: Normal reflexes In the upper and lower øflmlUes
y
Cranial nerves were urn Spwilng’swas positive on the kit MaWr and sensor
was Intact Diagnosis: Cervical r?dlwlRls, spraki and nain or left should er.
Plan; Presulbed physical meddne W decrease pain aid Increase range of
motion. Mi4sed to amtnue medkadon given by his Pa’. Follow-up In to l
wed’s. PreauthorlacirRequst; The patient has been diagnosed with cervica
radliwilils. The patient ønakis of pain that redlates into the ldt side & his
a
nedc down through his arm his hand. The patient describes the pain as
shooting, stabbing pain. He compbbis & hlsthW, founh and flit dlgt his of
hand lNhng asieqi. He has deceased rwge of motion of Vie wvl na
Postive Spwlhig’s bM* Motor and sensory Is Intath Physical medicine 3(
wedc4 w is medk2ky n.y to deanse pain aid inaeee iange of
Pa2
Eflj2IIZ
126
051.0712012 7:18:04 AK SEDUWIOK ONE PAGE 5 0! U
motlan to slow him to mahitakn his MI-duty sttis. Therapeutic ah%
therapeutic athvtUes hi addition wrk reirtegraton and wslcal perftnnan
tbng at the modalR] nt’ —.‘ay t achieve tha goals. DWC-73 The
clekuart was tai off wiiktNnfli 3-&U.
2-23-12 X-rays & the rMcai spine petrrned by Ed d, MD., vs
unnalcabia
2-2342 X-rsys & the l& totit h1nd1 by Ed Woiski, MD., was
unrw,iatbie.
2-2+12 fliØcd Pesfmiuiz ban tiowed the claimant Is ftmdlaning beicm
sedeit&y. His job reQuires MIIum PDL
Physkzl thery on 2-2#fl 2-25-12, 2-27-12, 2-3-12, 3-2-12, 3-5-12.
3-9-12 Phycal Performance ban shows U-is cb)iiant is lijnthcnlng below
dWRCbflY) flght His Job requkes Meilin POL
3-13-12 It D HaIder DC, the dalmant complains & severe left stlouldalam
pain. His medications include FIcr11, IbuprotHi and TrMnadol. The delmant
was conflnu with therapy. The dalmart was IcIaIcLl ftrai MRI&the rvlcaI
spine. The clalmart — conthued & vmqt through #1412,
3-13-12 at, LP, cBç piattia
PhysicS therapy on 3-1412,3-16-12,3-19-12,3-21-12,3-23-12,3-26-12,3-28-
12.
3-27-12 It D. HW, DC, die dflait ccmpfl & nit neck awl lelt tuWe
pain. Dlagnls: CaMI radlaJib, left 511nuder sarah. me dainant is
continued &wcikthmu&1 427-121
3-29-12 Mifi of the rice! sp1rie tittqnctal by 3am P11cc, 00, tows:
C2-3: Thee is dl bulging without mass el’frct
0-4: That is no disc disease idtfled,Thae is no nerve roct ci card
hiptigcrut 01-5: Them is rn chs dbrnsc identified. That Is no nae tact ci
cart Tmplnganait C5-6: There ts no disc disease idwuffed. Thee is no newe
ci d hiiptgemwit C6-7: There isa left paramedlan discS nyu pmtusion
mfldy wnpees the ventral coit
Iiiycxkm: Left paramedlan disc ptbwlan at C6-O. This may aafl for the
• syntmw & the left upper edienity pathes.
PIIY*3 thawy on 3-30-12,42-12,4+12,4+12,44-12, +11-IL
Tan ctffin
nunfloon
127
0510V2012 7:lBtOl AN SEDQWICC 0MB PAflE B 01 12
4-26-11 &i Wdsld, MD., DWC-73 The dalniait w r1Jm& In woik with
rlctoris Uimu 5-26-li -
TREATMENT DATA ON ThBITGRIFEN
DIAGNoSna FINDINGS
3-29-12MM of the shows a left paremediat dhc potim at a
cen4cal spine C. This mayaaount liii The symiAain of the
idt upper øthemlty pareia.
TREATMENT S OF OOG
VITS RecarneDATwwS
PIwskI the 19 10
QUEflOWS W ADORES
QUUON#i:
Bad upon the avaibtb medal hbtay, wist aiwies bathe
wctsMofhgury?
The EmplayWs First Rcit of TnJfly tdR2 that on 2-21-12, the dalmart
alegedly was veifying a nzul1Alon when he aggavatl his It *dder,
caushig pain.
Dr. Holde saw the dalnart cc 2-23-12 mat whie he was at worK he bent his
neck sldewas to the left de wtd rdied widm,e* the cusia wElt his tail
hand to ptAl me vlfl cit that he needed. He humedlaWy fat a tarp pat t
his nk that radiated cut thiugh his Idt stxxMe aid down his left 3m Rith his
h3t& The pabeit A4es he did nct rrwtIv have this twe of pat
It wotid appew that the dairnarit had a cvlI and slioulde stahl. The frI
does sltw disc i1ge at C6-C7 butt do nct cau fomminal ThIS is
not an tstanmon m,dlng In patfl without badc or nedc pain.
The4th eduon of The GuIdes page 99 nos what Is called osteoailtrts cite
spbe due rno.e In kiaemads ci age than to bijwy or illness.”
Current Iltflure &iows that when comparing ciIsgraphy, nography, C,
MM and sWdi wElt each other, that is 1561% of asymptcinfl Ae wRt
ahnotmalla Notable studI tithe kmta fle fri asymçmnatt kldvlthJs
TraGñffia
sfljtOaz E2201905011011b2
128
O5/O7/2O12 7:1flO1 AN SEDOVICK ONE PC 7 OF 12
Thdude Bodai et at 1990, ssi at al 1994, Wdnrth at al 1969, Paflnen at al
1989, W&sd al 1984, aid Qadnlic at al 1998.
• Lumbar Disc HatiaUcns McRae Paftimed a’ stides m pes
how8efie &bkpaki prtrt death. Hefttmda 33% prevalenceof
postezior disc flislaa
• WIeSeI found that the lumbar spine In as)cnçtaUc lndvWuals
demonstrated thiamaifties on MR images In 35%. He Found herniated
discs In 19.5% of the people under the age of 40 aixi givater than 27% In
the ovw 40 eis of age. He sb,dT only the 1.45 and 15-SI disc.
Weinrab, in as mptmmlcftmaies found 54% wiTh bu or hanIaUa
atoxiecr mcn disc ,aces,
• hinter Disc BulgnfProbtMaim Most authors report abnonnaWesas
a prevalence lnaeashig with age. Bodeii Iwid &ilghg Ii 34% of the 20
ft 39 year range and 50% In the 4059 a9e 9rOts. -;it
ftrduntres, 3 ft 39 yrs & age, aid 36% for whjeds ddez’Uian 60
‘yen
• 3adnlk also found a rdatonshlp to age. Total prevala’ce of btdgkig disc.
was 81%. 33% had at least one disc proknson. The fraueiicy of
prothislon Inns as a fisnWon of age 16% &voftmttes age! 30
years or curgu and 80% of the 4Lrteers older than 60 years had disc
pr&nskjns
• About one thht (36%) or asymç*omatlc ut4ecm over the age of 20 years
have a normal disc at evety Ievd. 38% have an aironnality in morn than
one disc levi. The prevalence of bd9 and pr*usions was higher at the
L45 and 1.5-Si an tJpt, 80%. 67%&thc people 50 yearn orddez
had muluple.
• Eplden*Iogy of Low Sick Paki: Compounding this pittlem of
wmmon abnonTefflJ In a’mpftrnatc people is the cvaaN Mddwre of
low back pain In the genaai pqIiaUon. The annual inddwice of ilMlme
prwaiai or lifeline Incidence of low bath pain varied from 1% to 5%
3.7% qniaicni kin bath pain for bvo weda or moit duratIon, 1.5%
with low bath pain ecpeiaid saauca. Of tho with sctauca, aver 90%
had rplate rewveiy by 2 weda to 30 days with ranservauve,
nonoperativeflatnezit Dayn. R.A.. Thi1-i. Y. 3.: Den.lAlge
EvkiernioloqvdLcww Bath Pain aid Us Pr4*M Ptdzl Ca In the IMitad
Sply 1> 264, 1997. Fjnnojer. )ohn W., at. a)., Aii QyaMav &
the )lddence arC Crfl of Low Bath ‘sin7 QUkAedic CWilZ North
Mi&a WA. 4 ra 2,. ApI 1991.
Taaia
5/7/2011
129
051,0712012 71804 AK SEDOWICK OHS PAGE 8 OF 12
• Sadie aid Vldenw have ioiird from the Tdeil Thin Sudy
years, dsc degwaauan is predmilmntiy rdated In gaidica Sbt aid
leading of the kntar spine hw some protective prçat.
• D!s ptthision, disc hatilaton aid disc bulge we &te tund In the
asymptomatic population. That is vy lithe relationship btei dinkal
symptoms and radidogicai signs of degeneration.
• The evaIence of bulging disk and focal disk probvslons was 73% (22
volunteers) and 50% (15 volunteers), respecbvely, There was one
fruslon (3%). deven volunteers had annular tears at one or more levels
(37%) and 94% of the annu)ar tears aihanced ai contast injection.
Asymtniat!c mechilary wmprs1on was (biind ii fWr patIent (13%).
CONCLUSION; Annular teas aid focal dl5k prumw are frequa*ly
ft&md on MR inadng at the cavtal sphe, with or wftfiout uinbt
athancarient, hi z ni,Exnt popubton. Em CW, Salt 1W, Peas
• E, Sseucq C, w M3. Bevalice of annular tears aiid disc hemlaUons
a, MR tnap of the Invk2l ne In symtn free idirs. Br 3.
RadIal. 2005 Sq;55(3):409-14. Epub 2005 Jan 1.
• Abnormal maan4lclaiiance sans of the c#ftal ne Ii cnmatc
aablecls. A orts1ed lrwffoaton. Bode 50, Mccowin PR, Davis DO,
Dm13, Mark % WI& Si Bone Joint Ssg Mn. 1990 Sep;flm):U76-
84.
• Deaiemtive d&iths & the knta aid caviol szlne. Rob Z Taig Al.,
Yea 31), DavIs], Furw C, Boitnan [II. Ottop Gin NoUi Am. 2005
Jul;36(3);255- 62. Revly.
In Cr. Hoiders daipUon, mo and ory ecsn S nriaL His OW se
rannal. Thereftie, I would daIfy this as a sbaln.
QUniaM#2
Dned upon the available medlc$ history, what harm or damage
appems to have been done to The dMmant’2 physlal ithictn as a
direct mmdt of the alleged event?
Based wan the data pmvlded, the dlmant had a ft Uswe In wUi me
noneifile rawlar complaint
Ps#6
lab
3GWUZ GUS PAOE 9 OF 12
05t0712012 7:1BOt AN -
Based on yaw uM.stntig & the waft and yaw opinion NnIfl9
raithig ktjwy, wl ndd be fl anUc*a 1..1S.3 dgn?
mdieguoacoda
As per above, a ce*zl sflh (847.0) and §iauide- tam (81OS)
in your review of the meWcal hlstoiy, do you nob any bicomhtency
regarig stunt etfl or diagnoS of caWc& nøcuI?
RadIailiW Implies hflemniaton of te neve, This to be a myofald
straki with non vedhlthie radiwiar complaint
QtJnnO Nt
Based on The MDA Guiddinse for the b4uryQs) yrna ttws —
ceased by ti aleged await 1,l*t would be the dflalal paled of
recovey attotdlng to UI. iat qipmpdato job danlflffow and what
b the maxkmjm pected peeled & We,INty?
Pa- airraittethnet guidelines, flalns are usaKysdf Ifmftfng end rekt
within the flr+6 weeks po& Injury.
• ra1njbtln lrØurfs are noted to rsoNc in the v maflty & cases
(85% of the time) within sbc weela S’IIt, 1995, Sdaitflc Monograph
of Qud Tes4or W.O. 5pfar, a&.
QUiiOfl#S: -
Zn your opinion b the dtaM thle to ream to waR with cc iUimit
rnors?
The dalmant has agatntfr be rthimslto work with resbictons.
Pe MDA Cavical *&nqafra
Length of mablifty
&p&ffn flats, crkI — s1rth zh
DUR*TflWDAYS
lab flt..finnfn. )djiimin Opb’ Mnmn
1 1 7
tig. 1 7 14
Sn—
131
SEUGWZQC ONE PAflE 10 OF 12
O5(07/2O12 7:18:04 AN
3 -
Effivy 3 35 56
Vayiy 3 42 70
QUSflON St
‘a tntnent
sand on year ophilon cii the —hatt of Injwy, what MU sIb 006
m.dlc&ly reasonable aid rWtnd hi HØtt at the ODE? Nease
hnycvrreepoiua
Please see below COG remmendat1ofls for teetnefit
Pa 0002012 regfliu low bath psin:
• firstvtst(dayl):
o Presate deceased aI±vttv. If necessay, based on sevalty aid dlffla*y
&jth; limited passive Therapy wRh heatffce (34 tmewday),
tetdiIng/est (training by physical thaipI 010, pitpdate
a1a (he., aamlnophi) andftjr aiti-bifianmatay (I.e., thuirofi)
bat to work ecet ftr severe in 72 hoot, pot1y rmdfled dilv:
bed rest
o NoX-Rays unless slcj,mwtfrawta (e.g., a fall)
o It mun spasms, Then coider mizde releelt with linRed sedative side
effects. (Note: The puipose &njsde reffixant t ftclltte tn to
activity, but nuscle relaxants have n& been shown to be more elTedive
Thai NSAID.)
o REASSfl PA11U(F: Patait cduIcn wnmm problem (90% &
-
patlat re’zv& spwtdnecusty Wi 4 veels)
• Second vist (day 7- abo* 1 wedc aI frst vWt)
o Docimait progr (fiextifity, a of tzndernas, m m4Ii,
a1ght leg raise—siting esupine)
o If l 50% daUed thai widff rerr& for etltuWonManjal
tha4ly. OpUom ae ohyczI therflt chkwractx. ii.c thetwbt
• or zfl1onal ffst (3 vIsits Wi ffrst wedQ, or by aq D(’MD.
(Choose provides supporting cUve therapy and not ju& paIve
modaliles.) Ccsislder sotailng for ØtyplptE In tes wNii
expectations &dela)td recowiy.
o Dl5DitIiue nKsde reat
- C Reassure, but If tutJ nt.ntness or wem & eNtier leg, g bath
provider In one day
Ta mn
efl/2M2 3O22flM6O
132
5EOWIQC CIC PAnE 11 OF 12
0510712012 7:j80I AM
o Cons1r ,eiil ft noea4cal Tmnjcdcd physida’
(OtthcpuiiEfi’hyáS Maifxrts Med)
14- about
Third visit (day 1 week aRe saxnd vist)
o Dowmat ptgs
o Presote muetndR1onNig çtses
o At Ut potit 66%-75% fluid be badc to regular i,alc
o WhIle n& Indated hi The aDsen of red flags, If l dab4 ff’rii
conder lmagwç txtv (AP/Lflral 2Mew X-Ray of kinta) ft riM m.t
tsnor, fracbn o&zoporosls, myciopethy [109 72L3, fl14 fl4SZ]
o CuiUruie that p1st, diaige haii passive ft active rtoddlty, 2 vist hi next
wee, ch hone
a Bdmnuyat4weeksQvisltInI8Wed()
• Foi.rthvlsz(day2lft2B-aboutl-Zwceksaftertllr4vls*)
o Documei% W no Imptvnatthei:
0 Fh £481 (about 3% of fttal cases, or 30% of ndlaiar ) ft ccnfirm
ethuded disk will nave ut dlwdaceneit (>= 1 m&th cersvative
thtpy)
o (MR! or cr not 1ickatal without obvoLz dWilI Ievd or nave tort
• dysftnctan, cl rxllaiar findings, or before 34 we&)
Per ODG 2012 ,egeidhig frc.hiait for ultedda bijiala
• InitIal evaluation should Include: -
o DeIne the type of bauma (died trauma, IN!, rep1tw
rirnilan, twttig tddat, a.).
o T tie arige-of.motal of tie Jo%it (nonn4 mild r1Wo-
seve i’etttn, or wmpIe r1dlon),
o Ni mt w*iatlcai &the shoulde ruuk ao.nte dIagrns
&thoulda- flid byaeftd bispedlon aid p*etal &the
stiouta area. Nthouyh the slalder Is geneally swollen, the
Injuty 1s usually defined by direct taidemess over the IFthJrCd
area
If riot slgilflcanuy Impuved then prescribe ohwhI U -a,v (venUe raige-d
motIon ees jt.s cetises that strengthen the rdBtus and stabilize the
scajxjb) should be arttdfor home erclse t-alnlnu.
o Rxtie rdaxatlon and pain coat-al can be adileved by krjathg an
anesthdlc titer the acmmlai (laaraily or antalody) With the shrndder
o Codimstedd hidbi b-li -
a jffl are qtfl &nrate In dlfltrstatlng th’onlc Inwkimat from ters
of the *a aft, aid nAd be flqed when
P9
S/I/Ron conaa1ao oat
If-
• - I’• i.
-
_J i.i.i
CAUSE NO. DC-13-05893 -3
TRENTS. GRIFFIN IN THE DISTRICT CO
Plaintiff,
v. lOPt JUDICIAL DISTRICT
eI4.
AMERICAN ZURICH INSURANCE
COMPANY
Defendant DALLAS COUNTY, TEXAS
REQUEST FOR FINDING S OF FACT AND CONCLUSION OF LAW
TO THE HONORABLE COURT:
Trent S. Griffin, a plaintiff in the above-referenced cause, in which
judgment was rendered on August 15, 2014, requests that you state, in
writing, the facts found by you, and that you separately state, in writing,
your conclusion of law, and further, that you file such findings of fact and
conclusions of law with the clerk of this Court so that they shall be part of
the record of the above cause, all in accordance with Rule 297 of the Texas
Rules of CMI Procedure.
1
161
Respectfully submitted,
. fN%>
S. Gri se
‘74 Mean en g Dr.
Cedar Hill, Texas 75104
214-418-9609
2
162
CERTIFICATE OF SERVICE
I certify that a true copy of the above Request for Fact and
Conclusions of bw has been been sent by certfied mail by depositing it
enclosed in a postpaid, properly addressed wrapper in a post office or
official depository under the care and custody of the United States Postal
Service to attorney Todd Richards, The Silvera Firm, 1015 Providence
Towers East, 5001 Spring Valley Road, Dallas, Texas 75244, attorney of
record for American Zurich Insurance Company at Corporation Service
Company, 211 East T” Skeet #620 Austin, Texas, Travis County, Texas.
SIGNED on September 2014.
S. &iif)4Ie
1
163
CAUSE NO. DC-13-05893
n-fl.
TRENT S. GRIFFIN IN ThE DIST C XRT
Plaintiff,
v. 1O1 JUDICIAL D9jaIcv ,
V
AMERICAN ZURICH INSURANCE
COMPANY
Defendant. DAUAS COUNTY, TEXAS
MOTION FOR NEW TRIAL
TO ThE HONORABII COURT: 19
Trent S. Griffin, Sr., Plaintiff, moves this Court to set aside the judgment
15th, 2014, In the above-styled and number casue and
rendered on August
to order a new trial, and in support of this motion shows:
I. PRELIMINARY MOT1ON
1. The trial court erred in the ruling, allowing defendant to file
inadmissable evidence. In accordance with Government Code 2001.173,
TRIAl. DE NOVO REVIEW, (a) If the manner of review authorized by law for
the decision in a contested case that is the subject of complaint is by trial
de novo, the reviewing court shall try each issue of fad and law in the
1
164
manner that applies to other civil suits in the state as though
there had not
been an intervening agency action or decidson but [may
not admit] in
evidence the fact of prior state agency action or the nature
of that action
except to the limited extent necessary to show compliance
with statutory
provisions that vest jurisdiction in the court.
2. The court erred in granting the defendants motion of
summary
judgment without providing the parties notice of the hearing
or submission
date of a summary judgment motion .[see Martin v. Martin & Richards,
inc.,989 S.W.2d 357,359 ffex.1998); Okoliv. Texas Dept of Human
Services, 117 S.W.3d 477,479 (rex. App.—Texarkana 2003, no pet.) (notice
by a party that summary judgment motion would be presented to court
was not notice of hearing date); see also Tex. R. Civ. P. 4; Lewis v. Blake, 876
5.W.2d 314,315 (Tex. 1994) ( disapproving courts of appeals’ opinion that
21 daysmust elapse between date of service and date of hearing)]. Even
though an actual hearing may not occur, because it is within the trial
judge’s discretion whether to hold a hearing, a hearing date must be set
and specified in a notice to the parties in order to set the filing deadlines
[see Martin v. Martin & Richards, Inc., 989 S.W.2d 357, 359 (rex. 1998)).
The plaintiff was not given notice at all of the summary judgment hearing.
In addition, the plaintiff was deprived of any right to file a written response
to the summary judgment sought by the defendant, American Zurich
Insurance Company. (see May v. Nacogdoches MemoHal Hosp., 61 S.W.2d,
626-627 ( Tex. App.—Tyler 2001, no pet)].
2
165
II. EVIDENCE
3. The trial court erred in the ruling,
allowing defendant to file
inadmissabje evidence. In accordance
with Government Code 2001.173,
TRIAL DE NOVO REVIEW, (a) If
the manner of review authorized
by law for
the decision in a contested case that
is the subject of complaint is by
trial
de novo, the reviewing court shall
try each issue of fact and law in the
manner that applies to other civil
suits in the state as though there
had not
been an intervening agency action or
decicison but [may not admitJ in
evidence the fact of prior state agency
action or the nature of that action
except to the limited extent necessary to
show compliance with statutory
provisions that vest jurisdiction in the court.
4. The trial court erred in admitting into evidence
of the defendant Texas
Department of Insurance Division of Workers’ Compens
ation
Commissioner’s Order for MMI/IR determination, a state doct
or DWCOS9
certification form, a state doctofl evaluation with range of
motion records
of the plaintiff (doctor’s report of Andrew Cole, M.D.) as Exhibit
“A”,
Contetsted Case Hearing Decision and Order as Exhibit B, and
Appeals
Panel Decision as Exhibit “C’. see Government Code 2001.173.
5. The trial court erred in admitting into evidence expert testimony,
which in Texas Supreme Court in Cramp announced a general rule
that
causation requires expert medical evidence. However, there are
exceptions
to the general rule. In Guevam ii’. Fesrer the Court stated: Type of
evidence
establishing a sequence of events which provides a strong, logically
traceable connection between the event and the “condition” could suffice
3
166
to support a causation finding 1) are
within the common knowledge and
experience of a layperson, 2) dId not exist
before accident, 3) appeared
after and close in time to the accident
and 4) are within the common
knowledge and experience of laypenon
a work injury. The Texas Supreme
Court, later noted [non-expert] evidence
alone is sufficient to support a
finding of causation in limited circumstances
where [both] the
[o]ccurence and [c]ondition complained of
are such that the general
experience and common sense of layperson are
sufficient to evaluate the
conditions and whether they were probably caused
by the occurence. see
Guevara v. Ferrer 247 5.W3d 662 flex. 2007).
6. The trial court erred In admitting into evidence a peer review
provided
by Dr. Phllhp Osborne on May 2, 2012. The defendant [did not]
dispute the
or contest the compensability of the plaintiffs injury on or before the
sixty
(60) days after the date on which the insurance carrier is notified of the
injury, the insurance carrier waives its right to contest compensability.
The
initiation of payment by an insurance carder does not affect the right of
the insurance carrier to continue to investigdte or deny the compensability
of an injury during the sixty(60) day period, see Texas Labor Code section
409.021(c). In addition, the peer review [does not] provide any newly
discovered evidence that was performed after the sixty(6O) days to contest
compensability. The plaintiff suffered a cervical spine injury, and the peer
review is specific to lumbar spine conditions. Further, in accordance with
[section 409.021(d)], an insurance carrier that contest compensability of
the claimed injury after sixty(60) days on the basis of newly discovered
4
167
evidence is liable for, and must continue to pay, all benefits
until the
Division has made a finding that the evidence could not have
been
reasonably discovered earlier which never occurredj section
124.3(c)(2).
7. The trial court erred in not reviewing the evidence that
contained
genuine disputes. Dr. Martin Steiner’s Nature of Incident Report
dated
October 19, 2012 contained the slxty(60) day time frame to
contest
compensability. It identifies the “notification of first income benefit
payment” dated 3/27/2012 and “notice of disputes issues” dated 5/9/2012
which is in excess of sbcty(60) days. Moreover, in the defendant’s motion
for summary judgment, under “BACKGROUNG”, the defendant accepted
the claim as compensable and initiated temporary income benefits (TIBs)
on February 22, 2012. The insurance carrier had knowledge and was
notified of the injury on February 22, 2012. Therefore, the insurance carrier
waived its rights to compensability when the insurance carder submitted a
‘notice of disputes” to the Division.
Ill. ThE CHARGE
8. The trial court erred in refusing to review the following issues. These
issues were supported by an affirmative written pleading, raised by
evidence, and should have been part of the review process. ft is clear and
conclusive, the defendant [did notj establish all elements of its cause of
action as a matter of lawjTex. R. Civ. P. iGGa(c); see Williams v. Glash, 789
S.W.2d 261, 264 (rex. 1990); Nixon v. Mr. Property Management, 690
S.W.2d 546,548 (rex. 1985); Jeter v. McGraw, 79 S.W.3d nil 214 (Ta
5
168
App.—Beaumont 2002, pet.denied); To prevail and put the
burden on the
non-movant to raise a genuine issue of material fact, the
movant must
conclusively establish, by [proper) summary judgment eviden
ce, all
essential elements of the claim[ MMP, Ltd. v. Jones, 710
S.W.2d 59, 60 (Tex.
1986)).
IV. LACK OF EVIDENCE
9. The was no evidence to support the trial court in granting a summa
ry
judgement. The evidence that was admitted is inadmissable becaus
e this
was a trial de novo pursuant Government Code 2001.173.
10. The trial court erred in the ruling, allowing defendant to file
inadmissable evidence. In accordance with Government Code 2001.173,
TRIAL DE NOVO REVIEW, (a) If the manner of review authorized by law for
the decision in a contested case that is the subject of complaint is by trial
de novo, the reviewing court shall try each issue of fact and law in the
manner that applies to other civil suits in the state as though there had not
been an intervening agency action or decicison but [may not admit] in
evidence the fact of prior state agency actIon or the nature of that action
except to the limited extent necessary to show compliance with statutory
provisions that vest jurisdiction in the court.
V. WEIGHT OF ThE EVIDENCE
11. The trial court erred in determining the defendant’s evidence was
acceptable in trial de novo. The evidence presented by PEER REVIEW by Dr.
6
169
Phillip Osborne doesn’t correlate to the plaintiffs injury of Cervical Spine
Injury and the Expert Witness Martin Steiner, M.D. is irrevalant because
the insurance carrier waived its rights to contest the compensability of the
injury within the sbdy(6O) day period after notification of the injury.
Moreover, the occurence and condition of the injury a layperson can
determine the work injury.
12. The defendant has not provided sufficient evidence to support the trial
court’s finding for summary judgment on all elements in an affirmative
pleading supported with evidence. The evidence that was submitted to
support a summary judgment is inadmissable pursuant Government Code
2001.173.
13. The plaintiff exercised due diligence in preparing for trial, and failure
to submit summary judgment evidence when there was no notice of
hearing or submission date of a summary judgment motion provided by the
court or the defendant’s attorney.
WHEREFORE, Plaintiff request that this Court set aside the judgment
in this cause and order a new trial.
Respectfully submitted,
jPrnse
4 Mekad6ring Dr.
Cedar Hill, Texas 75104
214418-9609
7
170
CAUSE NO. DC-13-05893
TRENT S. GRIFFIN IN ThE DISTRICT COURT
Plaintiff,
v. 101 JUDICIAL DISTRICT
AMERICAN ZURICH INSURANCE
COMPANY
Defendant DALLAS COUNTY, TEXAS
AFFIDAVIT
STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned Notary Public, on this day personally
appeared Trent S. Griffin, Sr., who being by me duly sworn on his oath
deposed and said:
1. I am Trent S. Griffin, Sr., the plaintif, a pro se litigant in the the above-
styled and numbered cause.
2. I make this affidavit in support of a motion for new thai.
3. In preparing this cause for trial, I made the following investigation:
a. Reviewed and found case law to determine the plaintiff is entitled
to a new triaL
b. The evidence submitted to the thai wuft is inadmissable,
1
171
therefore, judgment should be set aside and a new thai granted to the
plaintiff.
c. The plaintiff submitted an affirmative pleading on its merits with
evidence and the defendant did not establish condusively all elements of
its cause of action as a mater of law.
d. The plaintiff did not receive notice of hearing or submission date
for summary judgment motion.
a. The plaintiff did not receive a motion for summary judgment
from the defendant.
f. Expert witness in the above-styled case and cause number is not
needed In a case that can be decided by a layperso&s knowledge of a work
injury.
g. Peer Review evidence does not correlate to the plaintiffs cervical
injury, weight of the evidence doesn’t suffice summary judgment evidence.
h. All state evidence is inadmissable in a trial de novo review of the
plaintiffs work injury.
Gn.
SUBSCRIBED AND SWORN TO BEFORE ME on Q’ day of
September, to certify which witness my hand and official seal.
A
PUBLIC
Printed Name: 1-tL!rt.aN(t2
SDWINALLANHEPNANDEZ
Notary Number. I 71 it
My CommIs Eres
p
“d/ FebruaryOB,2a17 -
Commission Expires: 02-/o 6/17
172
CERTIFICATE OF SERVICE
I certify that a tnie copy of the above Motion for New Thai has this
day been sent by certfied mail by depositing ft endosed in a postpaid,
sitory under the
properly addressed wrapper in a post office or official depo
Todd
care and custody of the United States Postal Service to attorney
Richards, The Silvera Firm, 1015 Providence Towers East, 5001 Spring Valley
Road, Dallas, Texas 75244, attorney of record for American Zurich
70) Street, ft
Insurance Company at Corporation Service Company, 211 East
620 Austin, Texas, Travis County, Texas.
SIGNED on September 5dI, 2014.
1
173
CERTIFICATE OF SERVICE
I certify that a true copy of the above Motion for Appellant’s Brief and
Appellant’s Brief has been sent by certfied mail by depositing it enclosed in
a postpaid, properly addressed wrapper in a post office or official
depository under the care and custody of the United States Postal Service
to attorney Todd Richards, The Silvera Firm, 1015 Providence Towers East,
5001 Spring Valley Road, Dallas, Texas 75244, attorney of record for
American Zurich Insurance Company at Corporation Service Company, 211
7th
East Street, #620 Austin, Texas, Travis County, Texas.
SIGNED on March 30, 2015.
CMRR: 7013 2250 0002 3632 3256
3jt S. GrIffj /o se