Reazkallah, Maikel v. Imperial Guard & Detective Service, Inc. , 2019 TN WC 161 ( 2019 )

FILED
Nov 12, 2019
07:15 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Maikel Reazkallah, ) Docket No. 2018-06-2210
Employee, )
< )
Imperial Guard & Detective Service, ) State File No. 80107-2018
Inc., )
Employer, )
And )
Zurich American Insurance Company, ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF
The Court held an expedited hearing on November 7, 2019. Maikel Reazkallah
seeks treatment for his legs and temporary partial disability benefits from his former
employer, Imperial Guard & Detective Service. The Court finds he failed to satisfy his
burden of proof on both issues and denies the requested relief at this time.
History of Claim
This is Mr. Reazkallah’s second expedited hearing in this case.' On April 21,
2018, Mr. Reazkallah was assaulted while working for Imperial as a security guard.
Imperial provided authorized treatment with Dr. Michael Ladouceur.
The parties dispute the extent of his injuries from the assault. Mr. Reazkallah
testified that the assailant hurt both legs and that a video of the incident shows this, but he
did not introduce the video into evidence. He also stated that he reported pain in both
legs at his last visit with Dr. Ladouceur, but the doctor said he was authorized only to
treat his left knee.
' The Court previously ordered Imperial to pay a medical bill from Doverside Emergency Physicians,
LLC. The bill remains unpaid. Mr. Reazkallah must inform the provider to bill the carrier, Zurich
American Insurance Company.
At the previous expedited hearing, Mr. Reazkallah testified that he injured his
right hand and left knee during the altercation. He made no mention of an injury to his
right leg. At a later discovery deposition, Mr. Reazkallah testified that he was hit in the
face and head, and that the assailant bit his hand. He also stated the assailant “start[ed]
hitting me in the leg,” but he did not specify which leg. He said the emergency providers
treated his hand, head and “leg.” The Court carefully reviewed the deposition for any
references to a right-leg injury and found none.
According to the medical records, he reported that he “struck his left knee” to
emergency providers, who noted “[mlild pain with range of motion of the left knee where
there is an abrasion . . . otherwise his extremities have no tenderness or deformity or
other sign of trauma.” They x-rayed the left knee only and diagnosed a left-knee sprain.
Dr. Jacob Radford completed an April 21, 2018 Return to Work Form with restrictions to
the “left leg.” Mr. Reazkallah did not introduce Dr. Ladouceur’s records other than
forms placing restrictions.
Regarding his request for temporary partial disability benefits, Mr. Reazkallah
introduced a Work Status Form from Advanced Ortho and Spine dated October 23, 2019,
that recommends he stand for fifty minutes and sit for ten minutes every hour. Per the
previous Expedited Hearing Order, Imperial terminated Mr. Reazkallah in May 2018, and
Mr. Reazkallah agreed that events leading to his dismissal were unrelated to his workers’
compensation claim.
Mr. Reazkallah now works for Allied Universal Security and Rock Solid. He
testified that his pay rate changes depending on where Allied assigns him, but he offered
no documentary proof of his wages. Mr. Reazkallah stated that before receiving
restrictions, he worked eighty hours per week but now works approximately forty hours
weekly. He also said that physical therapy limited his assignments and resulted in him
earning less money.
Imperial argued that the only evidence that Mr. Reazkallah injured his right leg in
the assault is his recent testimony. It further contended that his termination was for
cause, and that, but for the termination, it would have accommodated Mr. Reazkallah’s
restrictions. Imperial raised the termination defense in closing argument and offered no
testimony on this issue.
Findings of Fact and Conclusions of Law
At an expedited hearing, Mr. Reazkallah must present sufficient evidence to prove
he would likely prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1)
(2019).
To receive medical benefits, Mr. Reazkallah must show that he suffered a right-leg
2
injury arising primarily out of and in the course and scope of his employment. Tenn.
Code Ann. § 50-6-102(14). As the Supreme Court stated, “[t]he nature and extent of the
employee’s injuries, and the issue of medical causation, usually come to light in the
course of treatment of the employee’s injuries.” Quaker Oats Co. v. Smith, 574 S.W.2d
45, 48 (Tenn. 1978).
Here, Mr. Reazkallah suffered an injury on April 21, 2018, and sought treatment
that same day. He did not report an injury to his right leg. Dr. Radford examined Mr.
Reazkallah and diagnosed mild pain with range of motion in his left knee but noted “no
tenderness or deformity or other sign of trauma” in any of his other extremities. Mr.
Reazkallah also did not testify to right-leg pain at the previous expedited hearing.
At the present hearing, he testified that the right leg needs treatment but did not
introduce any medical records documenting complaints of pain or other symptoms. Mr.
Reazkallah claimed that a video of the assault would show he injured both legs, but he
did not introduce it.
In sum, the only proof the Court has that he injured his right leg is Mr.
Reazkallah’s testimony. The Court finds his testimony insufficient to succeed at a
hearing on the merits in proving a right-leg injury in light of the dearth of evidence
supporting this assertion in the medical records and lack of testimony alleging this injury
at the previous expedited hearing. His request for treatment of the right leg is denied.
Mr. Reazkallah also requested temporary partial disability benefits. Temporary
partial disability refers to the time, if any, during which the injured employee is able to
resume some gainful employment but has not reached maximum recovery. Hackney v.
Integrity Staffing Solutions, Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 29, at *11 (July
22, 2016). In all cases of temporary partial disability, the compensation shall be sixty-six
and two-thirds percent of the difference between the average weekly wage of the worker
at the time of the injury and the wage the worker is able to earn in the worker’s partially
disabled condition. Tenn. Code Ann. § 50-6-207(2)(A).
Mr. Reazkallah’s only evidence on this issue was his testimony about his reduced
earnings. He testified about varying hourly rates depending on his assignments, that he
has missed work at times due to physical therapy, and that his recent restrictions keep
him from working as much as before. But he did not provide specifics about how much
he earned before or after the injury. He also introduced no wage stubs or other
documentary proof demonstrating a wage reduction. Further, he agreed at the previous
expedited hearing that his work injury was unrelated to Imperial’s decision to terminate
him. For these reasons, the Court holds Mr. Reazkallah would not likely prevail at a
hearing on the merits on this issue and denies this request at this time.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. Mr. Reazkallah’s requested relief is denied.
2. This case is set for a status hearing on January 28, 2020, at 10:00 a.m.
Central. You must call 615-532-9552 or toll-free at 866-943-0025 to
participate in the Hearing. Failure to call might result in a determination of
issues without your participation.
ENTERED November 12, 2019.
JUDGE KENNETH M:
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Affidavit, March 25, 2019
First Report of Injury
Medical records
Affidavit, September 12, 2019
Work Status Form
Mr. Reazkallah’s deposition transcript
Work Status Form, September 4, 2019
Work Status Form, October 23, 2019
SAA se eB
Technical Record:
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing, April 1, 2019
Expedited Hearing Order
Scheduling Hearing Order
Request for Expedited Hearing, September 12, 2019
Status Conference Order
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CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on
November 12, 2019.
Name Certified | Email | Service sent to:
Mail
Maikel Reazkallah, x xX 456 Cedar Park Circle
Employee LaVergne TN 37086
Maikel.reazkallah@yahoo.com
David Weatherman,
Employer’s Attorney
X | David. Weatherman@zurichna.com;
Christi.thomas@zurichna.com
Penny Shr, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. Ifa transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days afler the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
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EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
wow. to. gov/laborwid/weomp.shtml
we.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
Employer
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at |
to the Workers’ Compensation Appeals
Board. [List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional information
Type of Case [Check the most appropriate item]
[1] Temporary disability benefits
L] Medical benefits for current injury
C1 Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LJEmployer (JEmployee
Address:
Party's Phone: Email:
Attorney's Name: BPR#:
Attorney’s Address: Phone:
Attorney's City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SFA: DOI:
Appellees)
Appellee (Opposing Party): At Hearing: LiEmployer LiEmployee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address; Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
L, , certify that | have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers’ Compensation Appeals on this the day of ,20__
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
AFFIDAVIT OF INDIGENCY
800-332-2667
, having been duly sworn according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:
3. Telephone Number:
5. Names and Ages of All Dependents:
6. |am employed by:
2. Address:
4. Date of Birth:
Relationship:
Relationship:
Relationship:
Relationship:
My employer's address is:
My employer’s phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
beginning
beginning
beginning
$
8. I receive or expect to receive money from the following sources:
AFDC $ per month
SSI $ per month
Retirement $ per month
Disability $ per month
Unemployment $ per month
Worker's Comp.$ per month
Other $ per month
LB-1108 (REV 11/15)
beginning
beginning
beginning
beginning
RDA 11082
9. My expenses are: ie
Rent/House Payment $ permonth Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ : per month
Other $ per month (describe: )
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $
House $ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
______— day of 20
NOTARY PUBLIC
My Commission Expires:
SUE
LB-1108 (REV 11/15) RDA 11082