Trent Steven Griffin v. American Zurich Insurance Company

Opinion

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

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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 Martin 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

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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

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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.

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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

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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

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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,

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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

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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].

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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.

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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)].

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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

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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

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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.

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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

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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

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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

17

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

18

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

19

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,

20

Sr., or in the alternative, to reverse the trial court’s judgment and remand the case for new trial.

21

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

22

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

23

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]

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

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

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

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]

156

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

157

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

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

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

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 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 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

13

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

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

19

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Trats.Gdffin Page 3 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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31

a- 4¼ omomlAL 4 * 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

32

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

____

____

____

____

__

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 -

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

_____-—

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

37

.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

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

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

43

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

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 -

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

47

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

48

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 -

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

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 -

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

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flN lcmbUNttheentØoyaaUa NOTmS04M Waaleeq,a.dtorefli WMloiboA_I_1 The ,enon Urn employee has not reached MSM I doaanaNad hits attached nwatly.

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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

______

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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

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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__

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.

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.

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

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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

65

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

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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?

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

-

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.

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

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

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.

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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.

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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.

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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

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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.

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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

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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)

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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.

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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.

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

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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.

B)GWICC mS PACE 3 0? 12 05/0712012 71BO1 AM

EflDEVLERISED JffDJG1NEEVM&4WRS 1iflip0afl

May 2012

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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

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• 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.

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• 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

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

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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

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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 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

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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

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SEUGWZQC ONE PAflE 10 OF 12 O5(07/2O12 7:18:04 AN

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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

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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 r1Woseve 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

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_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.

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Respectfully submitted,

. fN%> S. Gri se ‘74 Mean en g Dr. Cedar Hill, Texas 75104 214-418-9609

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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

164

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

165

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)].

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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

167

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

168

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

169

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.

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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

171

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,

172

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

173

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.

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