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