Opinion

Louchi, Fatima v. All Star Personnel, LLC

  • 2024 TN WC 31
Court
Tennessee Court of Workers' Compensation Claims
Filed
Apr 9, 2024
Status
Published
On the bench
Kenneth M. Switzer
Cited by
0 cases

The opinion

FILED

Apr 09, 2024

10:19 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

Fatima Louchi, ) Docket No. 2021-06-1239

Employee, )

v. )

All Star Personnel, LLC, ) State File No. 103949 -2020

Employer, )

And )

Benchmark Insurance Company, ) Judge Kenneth M. Switzer

Carrier. )

COMPENSATION ORDER

The Court held a compensation hearing on April 2, 2024, on Fatima Louchi’s claim

for permanent partial disability benefits for an injury she suffered while working for All-

Star Personnel, LLC. For the reasons below, she is awarded two-percent permanent partial

disability plus increased benefits, for a total amount of $5,793.90. She is also entitled to

future lifetime medical benefits for any reasonable, necessary, and work-related treatment

with Dr. Sean Kaminsky.

Claim History

Ms. Louchi testified that on October 12, 2020, she injured her right shoulder at work.

All-Star accepted the claim, and Dr. David Neblett offered conservative treatment. Ms.

Louchi believed she needed surgery, and after some time All-Star authorized a second

opinion with Dr. Sean Kaminsky. Dr. Kaminsky recommended surgery to repair a torn

rotator cuff. After more delay, Ms. Louchi underwent the procedure in October 2022. Dr.

Kaminsky followed her progress post-surgery and placed her at maximum medical

improvement on April 20, 2023. He assigned a 2% impairment rating without work

restrictions.

Ms. Louchi testified that she did not return to work at All-Star when under

restrictions because they said they could not accommodate her. She is 46 years old and

testified that she did not complete high school or earn a GED.

1

Ms. Louchi testified that she still feels occasional pain but is satisfied with Dr.

Kaminsky’s treatment. She disagreed with the rating but offered no admissible contrary

expert opinion. Her friend, George Gerace, testified about her difficulties obtaining

appropriate treatment, her pain while treating, and her financial hardships since the injury.

Findings of Fact and Conclusions of Law

Ms. Louchi 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).

The Court finds Ms. Louchi credible about treatment delays and difficulties with the

carrier. Regardless, they are not relevant to her impairment. Rather, the Court may only

consider Dr. Kaminsky’s 2% rating as the sole expert proof of impairment. Ms. Louchi

disagreed with his ratings but offered no contrary medical evidence, so the Court finds she

retained a 2% impairment. She is entitled to an original award of permanent partial

disability benefits of $2,466.54 (2% of 450 weeks, or nine weeks, multiplied by the

compensation rate of $274.06). See Id. at -207(3)(A).

For increased benefits, section 50-6-207(3)(B) states in relevant part that an

employee may request them if she has not returned to work, and if appropriate, the injured

employee’s award shall be increased by multiplying the award by 1.35. Here, All Star did

not return Ms. Louchi to work, and the Court finds increased benefits appropriate. She

lacks a high school diploma or GED, so the original award shall be multiplied by 1.45.

Since she is over 40, that shall be further multiplied by 1.2. Id. at -207(3)(B)(i)-(ii). Her

resulting award is $5,793.90 ($2,466.54 times 1.35 times 1.45 times 1.2). All-Star shall

immediately pay her this amount in a lump sum.1

As for medical benefits, Ms. Louchi believes she will need treatment. Section 50-

6-204 states that an employer must furnish medical treatment made reasonably necessary

by the work accident. All-Star must furnish any future work-related and reasonably

necessary treatment with Dr. Kaminsky.

Finally, All-Star shall pay the $150.00 filing fee to the Court Clerk within five

business 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.

IT IS ORDERED.

ENTERED April 9, 2024.

1

Although All-Star argued that a child support lien(s) might have been placed against Ms. Louchi, neither

party offered sufficient proof on this to merit any adjustments to the award.

2

________________________________________

JUDGE KENNETH M. SWITZER

Court of Workers’ Compensation Claims

Appendix

Technical record:

1. Petition for Benefit Determination

2. Dispute Certification Notice/Mediation Violation

3. Order Resetting Status Hearing

4. Order on Status Hearing, July 12, 2022

5. Hearing Request, July 26, 2022

6. Employer and Carrier’s objection to Request for Expedited Hearing and Motion to

Strike

7. Employer’s Motion for Changing Interpreter

8. Order on Motion Regarding Interpretation

9. Order on Status Hearing, August 26, 2022

10. Order on Status Hearing, October 18, 2022

11. Order on Status Hearing, February 28, 2023

12. Order on Status Hearing, April 4, 2023

13. Order on Status Hearing, June 12, 2023

14. Status Hearing Order, September 11, 2023

15. Order Setting Compensation Hearing

16. Dispute Certification Notice, November 27, 2023

17. Notice of Deposition

18. Amended Notice of Deposition

19. Status Hearing Order, January 30, 2024

20. Employer’s Brief

21. Employer’s Witness and Exhibit List

22. Post-trial emails2

Evidence:

1. Wage statement

2. Deposition-Dr. Kaminsky

2

The parties emailed Court staff after the trial about Ms. Louchi’s receipt of and entitlement to temporary

disability benefits. These benefits are not listed as an issue on the November 2023 dispute certification

notice, so the Court will not rule on them. See Tenn. Code Ann. § 50-6-239(b)(1) (“[O]nly issues that have

been certified by a workers compensation mediator within a dispute certification notice may be presented

to the workers’ compensation judge for adjudication.”).

3

CERTIFICATE OF SERVICE

I certify that a copy of this Compensation Order was sent as indicated on April 9,

2024.

Name Certified Fax Regular Email Sent to

Mail mail

Fatima Louchi, X X 214 Ocala Dr.

employee Nashville TN 37211

louchifatima2@gmail.com

David Deming, X ddeming@manierherod.com

employer’s tjoiner@manierherod.com

attorney

_______________________________________

Penny Shrum

Clerk, Court of Workers’ Compensation Claims

WC.CourtClerk@tn.gov

4

Right to Appeal:

If you disagree with the Court’s Order, you may appeal to the Workers’ Compensation

Appeals Board. To do so, you must:

1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the

Court of Workers’ Compensation Claims before the expiration of the deadline.

 If the order being appealed is “expedited” (also called “interlocutory”), or if the

order does not dispose of the case in its entirety, the notice of appeal must be filed

within seven (7) business days of the date the order was filed.

 If the order being appealed is a “Compensation Order,” or if it resolves all issues

in the case, the notice of appeal must be filed within thirty (30) calendar days of

the date the Compensation Order was filed.

When filing the Notice of Appeal, you must serve a copy on the opposing party (or attorney,

if represented).

2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar

days after filing 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 filing 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 your appeal.

3. You are responsible for ensuring a complete record is presented on appeal. If no court

reporter was present at the hearing, you may request from the Court Clerk the audio

recording of the hearing for a $25.00 fee. If you choose to submit a transcript as part of your

appeal, which the Appeals Board has emphasized is important for a meaningful review of

the case, a licensed court reporter must prepare the transcript, and you must file it with the

Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board,

and you will receive notice once it has been submitted. For deadlines related to the filing of

transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the

Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)

4. After the Workers’ Compensation Judge approves the record and the Court Clerk transmits

it to the Appeals Board, a docketing notice will be sent to the parties.

If neither party timely files an appeal with the Appeals Board, the Court Order

becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory

orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).

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/

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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