The opinion
FILED
Mar 16, 2020
02:12 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Jack Riad, ) Docket No. 2019-06-0652
Employee, )
)
) State File No. 52406-2018
V. )
Marriott International, Inc., dba )
Gaylord Opryland, ) Judge Kenneth M. Switzer
Self-Insured Employer. )
)
EXPEDITED HEARING ORDER
Jack Riad worked long hours on his feet in housekeeping/ maintenance at the
Opryland Hotel, a Marriott property. He sought benefits for an ankle injury, which
Marriott denied asserting that he did not provide timely notice and filed his petition
outside the one-year period allowed by law. For the reasons below, the Court finds he is
not likely to prevail at a hearing on the merits regarding the timely filing of his claim.
The Court denies benefits at this time, but refers the case to the Compliance Program for
consideration of the imposition of penalties against Marriott.
History of Claim
Mr. Riad started working for Marriott in 2014 in housekeeping as a “runner,”
assisting with special maintenance projects. He testified that the job required him to walk
often and move furniture from room to room. His right ankle began to hurt, and the pain
became severe after working on March 28, 2017.'
Mr. Riad sought treatment on his own and took three days off. He went to work
the following Monday, April 3, but the pain remained. Mr. Riad returned to the doctor
the next day. On Wednesday, April 5, he discussed the injury and doctor visit with his
"Mr. Riad testified with the assistance of a certified court interpreter.
supervisor, Ilhan Malika. According to Mr. Riad, she questioned why he discussed the
injury as being work-related with the doctor, because he did not report the injury to
security when it happened, and she could not make the report now. According to his
affidavit, Ms. Malika said the injury was not related to work since it was not “apparent...
[s]uch as breakage or injury and blood, so that you can bring security.”
Ms. Malika or Marriott’s adjuster did not complete a First Report of Injury at that
time, nor did they offer a panel or make a determination regarding compensability.
Instead, according to Mr. Riad, Ms. Malika recommended that he apply for short-term
disability benefits.
Mr. Riad did not take that advice. He continued working and treating on his own.
However, the pain remained, causing him to call in sick often, especially after busy times
for the hotel such as the holidays. By April 2018, he testified he had used all his sick
leave and feared losing his job. He went to the doctor on April 6, 2018, and received
work restrictions, which he brought to Marriott’s human resources. Mr. Riad’s affidavit
states that on April 9, 2018, he again spoke with Ms. Malika, who suspended him from
work. He was “transferred to HR” and “given family leave.” Mr. Riad said Marriott
refused to accommodate his restrictions.
After family leave, he received short-term disability benefits from April 17 until
October 15, 2018. Mr. Riad’s application for short-term disability benefits asked if the
disability occurred while at work. He wrote, “[Y]Jes. About a year ago, as a result of
walking a lot[.]” The application additionally asked whether he believed the injury was
caused by work. The application reads “no,” but Mr. Riad testified that he did not write
that answer. Rather, “Jackie” in human resources filled it out.
A few months later, Marriott’s adjuster, Christina Cannon, completed a First
Report of Injury. The report describes the injury as “pain in foot and ankel [sic] is due to
walking while at work.” The form is dated July 10, 2018. Marriott denied the claim that
same day. Ms. Cannon’s affidavit states that Mr. Riad reported the injury on July 5,
2018.
Mr. Riad filed a petition for benefit determination on March 29, 2019.
Findings of Fact and Conclusions of Law
Mr. Riad must show that he is likely to prevail at a hearing on the merits. See
Tenn. Code Ann. § 50-6-239(d)(1) (2019); McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
The Court first addresses Marriott’s notice defense. Tennessee Code Annotated
section 50-6-201(a)(1) requires that an injured employee give written notice of an injury
2
within fifteen days unless it can be shown that the employer had actual knowledge.
Marriott contended that Mr. Riad failed to provide timely notice of his injury
because he did not report the injury or request medical treatment until July 10, 2018. Mr.
Riad testified that he reported the injury to Ms. Malika on April 5, 2017. Marriott relied
on Ms. Cannon’s affidavit to rebut Mr. Riad’s testimony.
When assessing witness credibility, the Tennessee Supreme Court instructed trial
courts to consider whether a witness is “calm or agitated, at ease or nervous, self-assured
or hesitant, steady or stammering, confident or defensive, forthcoming or deceitful,
reasonable or argumentative, honest or biased.” Kelly v. Kelly, 445 S.W.3d 685, 694-695
(Tenn. 2014). The Court finds Mr. Riad was calm, at ease, self-assured, steady, confident
and forthcoming. Ms. Cannon’s affidavit states that he gave notice on July 5, 2018. The
Court gives Mr. Riad’s testimony greater weight than Ms. Cannon’s.
Ms. Cannon’s affidavit is silent about any conversations between Mr. Riad and
Ms. Malika. Ms. Cannon is not qualified to make a legal conclusion regarding notice.
More importantly, Ms. Malika did not testify. Tennessee law supports a finding that the
failure of a party to call a witness peculiarly within its power to produce, and whose
testimony “would naturally be favorable” to it, “creates an adverse inference that the
testimony would not favor his contentions.” State v. Middlebrooks, 840 S.W.2d 317, 334
(Tenn. 1992). The Court finds that Mr. Riad gave actual notice to Ms. Malika on April 5,
2017, and rejects this defense.
The Court further finds that Marriott did not file a First Report of Injury or make a
determination about compensability in the months after he initially reported this injury in
April 2017. Rather, Marriott waited until July 10, 2018, to complete these forms, after
Mr. Riad attempted to report the injury again in April 2018.
Marriott’s other defense is that the statute of limitations bars Mr. Riad’s claim.
Tennessee Code Annotated section 50-6-203(b)(1) provides that “[i]n instances when the
employer has not paid workers’ compensation benefits . . . the right to compensation . . .
shall be forever barred, unless the notice required by § 50-6-201 is given to the employer
and a petition for benefit determination is filed with the bureau . . . within one (1) year
after the accident resulting in injury.”
Applying these principles, Mr. Riad testified that he became injured on March 28,
2017. As found above, he gave actual notice under section 50-6-201 on April 5, 2017.
He filed his petition on March 29, 2019, past the one-year period to file after the alleged
injury date. The Court holds he is unlikely to prevail at a hearing on the merits that he
filed within one year of the injury.
As a final matter, the Court is concerned that Marriott might have violated three
3
rules for handling claims.
First, Tennessee Compilation Rules and Regulations 0800-2-14-.03(1) (October,
1999) provides: “In order to ensure that Workers’ Compensation claims are acted on
promptly, employers shall report verbally or in writing all known or reported accidents to
their insurer within one working day of knowledge of injury.” Here, Ms. Malika had
knowledge of the alleged injury on April 5, 2017. However, Ms. Cannon did not file a
First Report of Injury until July 2018. It appears to the Court that Ms. Malika did not
report Mr. Riad’s alleged injury within one working day of their conversation in April
2017, perhaps due to her flawed belief that an injury must be “apparent” to trigger this
requirement. This question warrants further investigation.
Second, the rules read, “Decisions on . . . compensability shall be made within
fifteen (15) days of verbal or written notice of accident. All pertinent documents of the
[Bureau] of Workers’ Compensation shall be filed within fifteen (15) days of verbal or
written notice of accident.” Tenn. Comp. R. & Regs. 0800-2-14-.04(7). Mr. Riad did not
receive notice of the denial within fifteen days of reporting the injury on April 5, 2017.
Rather, he received the notice in July 2018, more than sixteen months later. The question
warrants further investigation.
Third, Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) reads, “[In] any
case when the employee has suffered an injury and expressed a need for medical care, the
employer shall designate a group of three (3) or more independent reputable physicians . .
. from which the injured employee shall select one (1) to be the treating physician.” The
Court finds that Marriott failed to offer a panel. This question also warrants further
investigation.
For these reasons, the Court refers this case to the Compliance Program to
consider the imposition of penalties.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Riad’s request for medical and temporary disability benefits is denied at this
time.
2. This case is set for a scheduling hearing on May 11, 2020, at 9:00 a.m. Central
Time. The parties must call 615-532-9552 or toll-free at 866-943-0025 to
participate. Failure to call might result in a determination of the issues without the
party’s participation.
3. The Court refers this case to the Compliance Program to consider the imposition
of penalties as outlined above.
ENTERED March 16, 2020.
Siilpyy
JUDGE KENNETH M. ae
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
Li
ee sO eS
Affidavit of Mr. Riad
First Report of Injury
Notice of Denial
Medical records-submitted by Employer
Restrictions-submitted by Employee
Medical records filed by Employee (Identification only)
Paystub
Affidavit of Christina Cannon
Wage statement
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice and Employer’s additional issues
3. Show Cause Order
4. Employer’s Motion to Dismiss
5. Request for Expedited Hearing
6.
7
8
9,
1
Employer’s Motion to Exclude/Quash/Strike
. Employee’s Response to Motion to Strike
. Order on Show-Cause Hearing
Employer’s Expedited Hearing Position Statement
0.Employer’s Motion in Limine
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on
March 16, 2020.
employer’s attorneys
Name Certified | Regular | Email | Sent to
Mail Mail
Jack Riad, self- xX xX matthew jack74(@yahoo.com
represented employee 3140 Hamilton Church Road,
Apt. 209
Antioch TN 37013
Travis Ledgerwood, X | tledgerwood@morganakins.com
Nick Akins, nakins@morganakins.com
Penny Wav Lows
Penny Shrum, Céurt Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
mie
SRE A)
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: “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. If a 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
conceming 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 after 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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
we.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of injury:
Employee
Employer
Notice is given that
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
0 Expedited Hearing Order filed on O Motion Order filed on
XC Compensation Order filed on C1 Other Order filed on
issued by Judge
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Parties
Appellant(s) (Requesting Party): fo Employer] ‘Employee
Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney's Email: Phone:
Attorney's Address:
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page lof 2 RDA 11082
Employee Name: Docket No.: Date of Inj.:
Appellee(s) (Opposing Party): [| Employer [_ ‘Employee
Appellee’s Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the day of , 20
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082