The opinion
FILED
Feb 02, 2024
08:27 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Maria Martinez Archundia, ) Docket No. 2020-06-0533
Employee, )
v. )
Sheraton Nashville, ) State File No. 93555-2018
Employer, )
And )
Federal Ins. Co., ) Judge Kenneth M. Switzer
Carrier. )
COMPENSATION ORDER
Maria Martinez Archundia suffered compensable right wrist and shoulder injuries
while working for Sheraton Nashville. The central dispute at the January 23, 2024
compensation hearing was whether she injured additional body parts. The parties also
contested permanent disability benefits. For the reasons below, the Court denies her claim
for injuries to other body parts, accepts the ratings from the authorized treating physicians,
and awards Ms. Archundia increased permanent partial disability benefits.
Claim History
In December 2018, as Ms. Archundia exited an elevator on the way to begin her
shift, she slipped and fell. She testified that she fell on her “entire right side.”
Sheraton accepted the claim. Ms. Archundia was originally seen at an occupational
medicine clinic, where she underwent physical therapy for many months, treating multiple
body parts including her right foot and knee. She offered no records of this treatment.
Afterward Ms. Archundia received authorized care from orthopedist Dr. David
West for her right wrist. She testified he was aware of her difficulty with walking and
1
sitting but only treated her hand. He performed surgery and later assigned a 1% impairment
rating.1 Neither party introduced his treatment records.
Ms. Archundia next treated for her right shoulder with Dr. Sean Kaminsky and told
him about her foot and knee symptoms. Dr. Kaminsky’s initial evaluation form confirms
this, listing “foot purple, knee pain” among her problems. He additionally wrote, “She also
relates that she has foot discomfort and knee pain. She states her feet turn purple[.]”
Despite the notation, Dr. Kaminsky only treated her shoulder. Ms. Archundia testified that
he did not examine or order diagnostic testing of her right foot and knee.
Dr. Kaminsky surgically repaired her torn rotator cuff in July 2022 and followed
her progress afterward. A year later, after reviewing post-operative MRI results, he noted
it revealed “no evidence of a rotator cuff tear, labral disruption, or other significant
abnormality.” Dr. Kaminsky further wrote, “her presentation demonstrates ill-defined
symptoms and presentation that cannot be fully explain[ed] based on her MRI study.” He
placed her at maximum medical improvement and assigned a 4% impairment.
Sheraton deposed Dr. Kaminsky, who was skeptical about some of Ms. Archundia’s
continuing symptoms.2 He said he found no objective or anatomic basis for her ongoing
pain and no reason for her use of a cane. As for other alleged injuries, Sheraton’s counsel
referred to a July 2021 letter that asked if Ms. Archundia’s work incident primarily caused
her right foot, toes, and knee symptoms, considering all possible causes. He responded no
for each body part, in the letter and at the deposition.
Ms. Archundia offered no expert medical proof to counter the authorized
physicians’ conclusions.
Ms. Archundia testified about her dissatisfaction with both authorized physicians.
She believes that both doctors released her prematurely and testified, “[T]hey completely
forgot about my knee. They completely forgot about my foot.”
She argued that the Court similarly disregarded her pleas for help. The pleadings
document that throughout more than three years of litigation, the parties frequently
disagreed about which body parts were injured. Sheraton filed a petition for benefit
determination in April 2020 listing solely the right wrist. The initial dispute certification
notice likewise only mentions the wrist. Ms. Archundia requested evidentiary hearings
1
Sheraton offered a C-30A Final Medical Report from Dr. West as proof of the rating. A C-30A is not
admissible at a compensation hearing; only form C-32 is admissible under Tennessee Code Annotated
Section 50-6-235 (2023). Regardless, Sheraton agreed to the rating, so documentary proof is unnecessary.
2
Ms. Archundia did not attend the deposition and said she was unaware of it. However, Sheraton filed a
notice of deposition, in both English and Spanish, with the Court Clerk before it took place. The certificate
of service states that Sheraton sent her a copy by email and regular mail. Ex. 5.
2
twice, but by agreement neither hearing took place. At several status hearings, she
mentioned that other body parts were symptomatic and/or not being treated. The Court
suggested often that Ms. Archundia, who is self-represented, request a hearing and consult
with an ombudsman or ombudsman attorney.3
Ms. Archundia testified the injury affected her life dramatically. Her right toes
turned purple, she walks with a cane, and she has difficulty sleeping. Ms. Archundia said
that Sheraton refused to accommodate her restrictions while she was treating. Although
Dr. Kaminsky eventually lifted the restrictions, she believes she cannot return to work
because she cannot lift heavy objects. She has not worked since the accident.
On cross-examination, Ms. Archundia said she has a “green card,” and Sheraton
offered no proof to contradict her immigration status.
Findings of Fact and Conclusions of Law
Ms. Archundia has the burden of proof on each and every element of her claim by
a preponderance of the evidence. Tenn. Code Ann. § 50-6-239(c)(6) (2023).
Compensability and medical benefits
Ms. Archundia must prove that her claimed right foot, knee, and toe injuries arose
primarily out of and in the course and scope of her employment. Id. at -102(12). This must
be shown to a reasonable degree of medical certainty. Id. Additionally, medical evidence
is generally required to establish a causal relationship, “[e]xcept in the most obvious,
simple and routine cases.” Berdnik v. Fairfield Glade Cmty. Club, 2017 TN Wrk. Comp.
App. Bd. LEXIS 32, at *10-11 (May 18, 2017).
This is not an obvious, simple, and routine case, so medical evidence is required to
show a causal relationship.
Ms. Archundia sincerely and credibly testified that after the work accident, she
experienced symptoms in her right side, including her foot, toes, and knee. Importantly
though, she offered no medical proof that these alleged injuries arose primarily from her
employment. Dr. Kaminsky emphatically testified that they did not.
Ms. Archundia questioned how Dr. Kaminsky arrived at that conclusion, given that
she told him about her symptoms—yet he never examined these body parts or ordered
testing. The Court finds she did relay her foot and knee symptoms. The reason he declined
to treat them is unknown. Her argument is compelling. Still, this Court cannot substitute
its judgment for that of a medical doctor. See Lurz v. Int’l Paper Co., 2018 TN Wrk. Comp.
3
T.R. 1, 2, 4, 6, 8, 9, 10, 13, 15, 18, and 20.
3
App. Bd. LEXIS 8, at *17 (Feb. 14, 2018) (“[J]udges are not well-suited to make
independent medical determinations without expert medical testimony supporting such a
determination.”).
Ms. Archundia additionally argued she mentioned that other body parts were injured
at many status hearings. The technical record confirms this.
But it also reveals that she was instructed several times about Bureau resources for
self-represented persons and that the Court suggested that she request a hearing, which the
rules require. See Tenn. Comp. R. & Regs. 0800-02-21-.15(1) (2023). Courts must not
excuse pro se litigants from complying with the same substantive and procedural rules that
represented parties are expected to observe. Darraj v. McKee Foods Corp., 2017 TN Wrk.
Comp. App. Bd. LEXIS 4, at *14-15 (Jan. 17, 2017).
Therefore, Ms. Archundia has not shown by a preponderance of the evidence that
her alleged injuries to her toes, foot, and knee arose primarily from her employment. The
Court holds she is not entitled to workers’ compensation benefits for these body parts.
This leaves the accepted wrist and shoulder claims. Section 50-6-204 states that an
employer must furnish medical treatment made reasonably necessary by the work accident.
Sheraton must furnish any future work-related and reasonably necessary treatment with
Drs. West and Kaminsky.
Permanent partial disability and increased benefits
Drs. West and Kaminsky assigned a 5% combined total permanent impairment. Ms.
Archundia disagreed with their ratings but presented no contrary medical evidence. The
Court finds she retained a 5% impairment. She is entitled to an original award of permanent
partial disability of $7,585.43 (5% of 450 weeks, or 22.5 weeks, multiplied by the
compensation rate of $337.13). See Id. at -207(3)(A).
An employee’s original award shall be increased by 1.35 times if she did not return
to work after the initial period of compensation. Tenn Code Ann. § 50-6-207(3)(B). Here,
the parties agreed that Ms. Archundia did not return to work, so the Court finds increased
benefits appropriate. Since she is over age forty, that award shall be multiplied by 1.2. Id.
at -207(3)(B)(ii). Her resulting award is $12,228.40 ($7,585.43 times 1.35 times 1.2).
Sheraton argued that section 50-6-207(3)(F) prevents her from receiving increased
benefits. That provision states that increased benefits “shall not apply to injuries sustained
by an employee who is not eligible or authorized to work in the United States under federal
immigration laws[.]”
Ms. Archundia testified without contradiction that she has a green card. The U.S.
4
Citizenship and Immigration Services website explains, “Having a Green Card (officially
known as a Permanent Resident Card) allows you to live and work permanently in the
United States.” https://www.uscis.gov/green-card (last visited Feb. 1, 2024). The Court
takes judicial notice under Tennessee Rule of Evidence 201 that a green card entitles a
noncitizen to work legally in the United States. Since Ms. Archundia is allowed to live
and work permanently in this country, the Court rejects this argument.
IT IS ORDERED AS FOLLOWS:
1. Ms. Archundia’s claim for benefits for alleged injuries to her right foot and toes
and right knee is denied.
2. Sheraton shall provide future reasonable, necessary, and related medical benefits
for her right wrist and shoulder with Drs. West and Kaminsky.
3. Sheraton shall pay Ms. Archundia lump-sum permanent partial disability and
increased benefits totaling $12,228.40.
4. Sheraton shall pay the $150.00 filing fee to the Court Clerk within five days of
entry of this order. It shall also file an SD-2 within ten days of this order
becoming final. Unless appealed, this order becomes final thirty days after entry.
ENTERED February 2, 2024.
________________________________________
JUDGE KENNETH M. SWITZER
Court of Workers’ Compensation Claims
5
APPENDIX
Technical record:
1. Petition for Benefit Determination, filed by Employer, April 15, 2020
2. Dispute Certification Notice, August 18, 2020
3. Show Cause Order
4. Request for Expedited Hearing, October 19, 2020
5. Order Resetting Show-Cause Hearing
6. Order on Show-Cause Hearing
7. Order on Status Hearing, February 16, 2021
8. Order on Status Hearing, March 30, 2021
9. Request for Expedited Hearing, May 19, 2021
10. Order Continuing Expedited Hearing, March 13, 2023
11. Order on Status Hearing, August 2, 2021
12. Order on Status Hearing, December 20, 2021
13. Order on Status Hearing, April 26, 2022
14. Order on Status Hearing, August 30, 2022
15. Order on Status Hearing, October 18, 2022
16. Order on Status Hearing, February 14, 2023
17. Order on Status Hearing, April 4, 2023
18. Status Hearing Order Setting Mediation
19. Email/Notice of Stipulation, October 30, 2023
20. Status Hearing Order Setting Compensation Hearing
21. Dispute Certification Notice and additional issues, November 2, 2023
22. Employer’s Brief
23. Pretrial Statement
Evidence:
1. Wage statement
2. Deposition excepts, Dr. Kaminsky
3. Employer’s submission of medical records-Dr. Kaminsky treatment notes,
causation letter
4. Dr. Kaminsky’s Deposition
5. Notice of Deposition
6
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on February 2, 2024.
Name Certified Regular Email Sent to
Mail mail
Maria Martinez X X rorra_05@hotmail.com
Archundia, self- 3733 Seasons Drive
represented Antioch, TN 37013
employee
Brent Wilkins, Fred X bwilkins@wimberlylawson.com
Baker, Employer’s fbaker@wimberlylawson.com
attorneys bcopeland@wimberlylawson.com
_______________________________________
Penny Shrum
Clerk, Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
7
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
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):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ 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): _________________________________________ ☐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 1 of 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 I 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