The opinion
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
REAZKALLAH ABDELSHAHAED, )_ Docket No. 20120-05-0836
Employee, )
V. )
TAYLOR FARMS, ) State File No. 56254-2020
Employer, )
And )
AMERICAN ZURICH INS. CO. ) Judge Dale Tipps
Carrier. )
EXPEDITED HEARING ORDER DENYING BENEFITS
This case came before the Court on March 17, 2021, for an Expedited Hearing on
whether Mr. Abdelshahaed is likely to prove at a hearing on the merits that he is entitled
to benefits. Because he has not shown with a doctor’s opinion that his injury arose
primarily out of and in the course and scope of employment with Taylor Farms, the Court
holds that he did not meet this burden and denies the requested benefits.
History of Claim
After working at Taylor Farms as a product handler for about three years, Mr.
Abdelshahaed developed pain in his right hand. He reported the problem to his supervisors,
who advised that Taylor Farms would provide medical treatment. However, Mr.
Abdelshahaed felt the process was taking too long, and he sought treatment on his own
from Dr. Adam Cochran.
Dr. Cochran first saw Mr. Abdelshahaed on July 1, 2020, and diagnosed “work
related trigger finger” of the mght ring finger. He prescribed therapy and took Mr.
Abdelshahaed off work for two weeks. Mr. Abdelshahaed returned several times until
August 8, at which time Dr. Cochran referred him to a specialist. Dr. Cochran’s Return-
to-Work note of that date states: “Trigger finger is most likely work related. (51% more
likely).”
One day before Mr. Abdelshahaed’s last visit with Dr. Cochran, Taylor Farms
completed a first report of injury on August 7 and offered a panel of physicians. He
selected Dr. Joseph Weick and saw the doctor on August 20.
Dr. Weick noted a three-month history of finger pain after Mr. Abdelshahaed
changed job duties and began working at a higher volume with fewer breaks. He diagnosed
trigger finger. Dr. Weick also wrote: “We discussed at length that there is no evidence that
this is specifically work related. He has no specific history of injury and under Tennessee
law this is not work related.” He reiterated this in a later note, adding, “0% work related.”
At the hearing, Mr. Abdelshahaed requested medical treatment, payment of his
medical bills, and temporary disability benefits.' Taylor Farms contended that Mr.
Abdelshahaed is not entitled to benefits because he did not prove that his injury was
primarily caused by work.
Findings of Fact and Conclusions of Law
Mr. Abdelshahaed must provide sufficient evidence from which this Court might
determine he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-
239(d)(1) (2020); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
To prove a compensable injury, Mr. Abdelshahaed must show that his alleged
injuries arose primarily out of and in the course and scope of his employment. This
includes the requirement that he must show, “to a reasonable degree of medical certainty
that [the incident] contributed more than fifty percent (50%) in causing the . . . disablement
or need for medical treatment, considering all causes.” “Shown to a reasonable degree of
medical certainty” means that, in the opinion of the treating physician, it is more likely than
not considering all causes as opposed to speculation or possibility. See Tenn. Code Ann.
§ 50-6-102(14).
In this case, the Court is faced with two medical opinions. Dr. Cochran said that
Mr. Abdelshahaed’s trigger finger is most likely work-related; Dr. Weick said it was not.
The Court first notes that both opinions are flawed. Dr. Weick suggested that the
reason Mr. Abdelshahaed’s injury was not work-related is because there was “no specific
' Mr. Abdelshahaed also testified about a later knee injury and a cut he suffered on one of his fingers. He
contended both injuries were the result of Taylor Farms’s retaliation against him for filing this claim. As
neither of those injuries or injury dates was identified in the Petition for Benefit Determination or the
Dispute Certification Notice, they are not properly part of this case. Similarly, the Court has no authority
to address Mr. Abdelshahaed’s allegations of bullying, assault, and eventual termination. Any recourse he
might have for those allegations, including his lost wages and health insurance, lies outside of the Court of
Workers’ Compensation Claims.
history of injury and under Tennessee law this is not work related.” This is not an accurate
statement of the law. Section 50-6-102(14) provides that cumulative trauma and repetitive
motion conditions may be compensable, so long as they arise primarily out of work. To
the extent Dr. Weick’s opinion may be based on a misstatement or misunderstanding of
the law, the Court finds it unreliable.
Dr. Cochran’s opinion fares poorly for a different reason. Although he need not use
the specific causation language of the statute, his opinion must be sufficient for the Court
to conclude that the statutory requirements of an injury are satisfied. Panzarella v.
Amazon.com, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 30, at *14 (May 15, 2017). Dr.
Cochran’s opinion does not meet this threshold. His statement, “Trigger finger is most
likely work related. (51% more likely),” establishes only that Mr. Abdelshahaed’s
condition is more likely than not “work related.” It does not address whether the injury
was primarily caused by the work or merely related to it.
Without a reliable medical opinion, the Court cannot find at this time that Mr.
Abdelshahaed is likely to prevail on proving that his injury arose primarily out of his
employment.
Even if the Court were to accept the medical opinions, the result would be
unchanged. Because Mr. Abdelshahaed selected him from a panel of physicians, Dr.
Weick’s opinion is presumed to be correct. See Tenn. Code Ann. § 50-6-102(14)(E). The
question, therefore, would be whether the preponderance of the evidence is sufficient to
rebut that presumption. The only medical proof on this issue is the short, unexplained
conclusion of each doctor. Without more information, the mere existence of disagreement
between the doctors would be insufficient for the Court to find the presumption rebutted
by a preponderance of the evidence.
Finally, the Court notes that Mr. Abdelshahaed testified without rebuttal that, after
he reported the injury, Taylor Farms failed to provide medical treatment for several weeks,
which led him to treat with Dr. Cochran for at least a month before receiving a panel. This
failure to promptly provide a panel is contrary to Tennessee Compilation Rules and
Regulations 0800-02-01-.06(2). Therefore, the Court refers this case to the Compliance
Program for investigation and possible assessment of a civil penalty. Upon its issuance, a
copy of this Order will be sent to the Compliance Program. See Tenn. Comp. R. & Regs.
0800-02-24-.03.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Abdelshahaed’s claims against Taylor Farms for medical and temporary
disability benefits are denied at this time.
2. This case is set for a Scheduling Hearing on June 22, 2021, at 9:00 a.m. You must
3
call toll-free at 855-874-0473 to participate. Failure to call might result in a
determination of the issues without your further participation. All conferences are
set using Central Time.
ENTERED March 22, 2021.
(FFL 2D
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1.
CI AME WD
9
Agreed indexed records
FMLA application
UNUM disability application
August 28, 2020, WorkLink Report signed by Dr. Keith Douglas
Work status reports from Dr. William Mayfield (Identification only)
Hughston Clinic payment summary and therapy records (Identification only)
Smyrna Police incident report
Separation Notice
Affidavit of Mr. Abdelshahaed
10. May 21, 2020 Excuse Slip from Rama Medical Group
11. Medical records from Hughston Clinic
Technical record:
1.
2.
3.
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on March
22, 2021.
Name Certified | Email | Service Sent To
Reazkallah Abdelshahaed reazkallahabdelshahaed @ yahoo.com
|X
Peter Rosen,
Employer’s Attorney
prosen @vkbarlaw.com
MOST xX patsy.bumbalough @tn.gov
peggy.haley @tn.gov
Compliance Program X Wecompliance.program @ tn. gov
tts I
f | |
/ 4 si AA fA -
Finny XW
b zi
Penny Shru fy, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk @ th.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: “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/
wce.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
0 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