Abdelshahaed, Reazkallah v. Taylor Fresh Foods, Inc. , 2023 TN WC App. 46 ( 2023 )

FILED
Oct 02, 2023
12:47 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Reazkallah Abdelshahaed ) Docket No. 2021-05-0272
)
v. ) State File No. 800172-2021
)
Taylor Fresh Foods, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Dale A. Tipps, Judge )
Affirmed and Certified as Final
This is an appeal of a compensation order denying benefits. The employee alleged he
suffered a laceration to his left forefinger resulting in a need for medical treatment.
Following an expedited hearing, the trial court ordered the employer to provide a panel.
The employer complied with the order, and the employee had one appointment with the
panel-selected physician. The court also issued a scheduling order with various
discovery and proof deadlines. Neither party filed documents in compliance with that
order, and, at the compensation hearing, neither party introduced any medical proof or
offered any admissible exhibits. The trial court found the employee failed to prove his
alleged injury arose primarily out of and in the course and scope of his employment and
denied benefits, and the employee has appealed. Upon careful consideration of the
record, we affirm the order and certify it as final.
Judge Meredith B. Weaver delivered the opinion of the Appeals Board in which
Presiding Judge Timothy W. Conner and Judge Pele I. Godkin joined.
Reazkallah Abdelshahaed, Lavergne, Tennessee, appellant, pro se
Peter S. Rosen, Nashville, Tennessee, for the appellee, Taylor Fresh Foods, Inc.
Factual and Procedural Background
Reazkallah Abdelshahaed (“Employee”) alleged he suffered a work-related injury
on November 4, 2020, when he cut his left forefinger with a knife while at work at Taylor
Fresh Foods, Inc. (“Employer”). Employee alleged that he was pushed by his supervisor,
causing the knife to slip and cut his finger. For its part, Employer claimed the first notice
1
it received of any alleged injury was the initial petition for benefit determination, which
was filed by Employee in May 2022. Employer denied the claim on several bases,
including lack of evidence of medical causation and a lack of need for medical treatment
beyond first aid. 1 A dispute certification notice was issued later that month, and an
expedited hearing was held on November 21, 2022. At that time, the trial court
determined Employee had presented sufficient evidence to show at the interlocutory stage
that he was entitled to a panel of physicians. That order was not appealed, and Employer
sent a panel of three physicians to Employee. 2
The parties had a scheduling hearing on February 22, 2023, and Employee did not
participate. In the order, various deadlines were set, including the completion of all
depositions of lay witnesses by May 1, 2023, and the completion of expert medical proof
by June 1, 2023. Employer sent a notice of deposition on April 21, 2023, setting
Employee’s deposition for April 27, 2023. Employee’s son attended the deposition with
him, intending to interpret for his father. Employer had provided a certified interpreter as
required by applicable rules and objected to Employee’s son’s presence during the
deposition. Employee refused to proceed with the deposition if his son could not
interpret for him instead of the Employer-retained interpreter. The parties called the
court for direction, and the judge informed Employee that his son was not entitled to be
in the room at the time of the deposition. Employee stated again that he would leave,
prompting the court to state, “[I]f you leave, there will be consequences. . . . You may be
charged [with contempt]. You may have evidence excluded. You may have your case
dismissed.” Despite this warning, Employee left the deposition, and Employer filed a
motion for sanctions. The court granted the motion in a May 10, 2023 order requiring
Employee to pay $250.00 in expenses to Employer, although the order held the payment
in abeyance until the conclusion of the case. Employee filed an untimely appeal of that
order on June 12, 2023, which we dismissed pursuant to Tennessee Code Annotated
section 50-6-217(a)(2)(A).
Ultimately, Employee selected Dr. Paul Abbey from the panel provided by
Employer, and an appointment occurred on June 8, 2023, which was after the deadline
for medical proof set forth in the scheduling order. 3 Employee also went to see his
1
The record does not indicate that Employer asserted the expiration of the statute of limitations and/or
untimely notice as defenses.
2
Employee emailed the clerk of the Appeals Board and attached an incomplete notice of appeal on
November 28, 2022. However, he never properly filed the notice with the clerk of the Court of Workers’
Compensation Claims as required by Tenn. Comp. R. and Regs. 0800-02-22-.01(1) (2020). Furthermore,
it did not identify the date of the trial court order being appealed, the judge who issued the order, or any
reviewable issues for appeal. As such, to the extent Employee intended to appeal the November 21, 2022
order granting medical benefits, we dismissed the appeal as fatally flawed on March 2, 2023.
3
Employer contended the selection was not made until May 31, 2023. Employee contended he made the
selection earlier. Regardless, neither party filed a motion to amend the court’s scheduling order.
2
personal chiropractor, Dr. Larry McCoy. Employee attempted to file the record from that
visit prior to the compensation hearing, and Employer objected to the admissibility of that
document. The court agreed and excluded the record from evidence.
The compensation hearing occurred on July 18, 2023. In the order from that
hearing, the trial court observed that neither party filed a witness list, exhibit list, or pre-
trial hearing statement, and that no medical proof was submitted. With no medical proof
establishing Employee’s alleged injury arose primarily out of and in the course and scope
of his employment, the trial court determined Employee had not met his burden of proof
and entered a compensation order denying benefits. Employee has appealed.
Standard of Review
The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2022). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court. Madden v. Holland
Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar
deference need be afforded the trial court’s findings based upon documentary evidence.”
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and
application of statutes and regulations are questions of law that are reviewed de novo with
no presumption of correctness afforded the trial court’s conclusions. See Mansell v.
Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are
also mindful of our obligation to construe the workers’ compensation statutes “fairly,
impartially, and in accordance with basic principles of statutory construction” and in a
way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-
116 (2022).
Analysis
In his notice of appeal, Employee lists the following issues:
Acceptance of the doctor reports; Acceptance [of] compensation for my
injury; Accepting my son [to] help me translate; reopen my case and
investigation of concealment of documents; looking [illegible] explain
obstruction of the case [and] look all documents [that] support my case.
3
Neither party timely filed a brief in this appeal, and neither party filed a transcript
of the compensation hearing. 4 Employee did file several screenshots of emails with his
notice of appeal, none of which appear to have been filed with the trial court prior to the
compensation hearing, as well as a written statement “appealing the verdict against
[him].” In his statement, Employee asserts that “[a]ll allegations are false,” and he claims
that the court and/or Employer’s counsel have hidden or altered documents. Employee
requested in his statement that his son be allowed to interpret for him instead of the
interpreter retained by Employer. He indicates that he had requested a new judge be
placed on the case and that his request went “unanswered.” He further wants assistance
related to his termination from Employer, help from legal aid, and he ends the statement
with “[p]lease help me lift the injustice.”
Without a transcript or a brief, we have no way to determine what issues were
addressed by the trial court during the hearing, other than statements contained in the
compensation order. In the absence of a transcript, we must presume that the evidence
presented at the hearing supported the findings of the trial court. See, e.g., Estate of
Cockrill, No. M2010-00663-COA-R3-CV, 2010 Tenn. App. LEXIS 754, at *11-12
(Tenn. Ct. App. Dec. 2, 2010) (“[W]here no transcript or statement of the evidence is
filed, the appellate court is required to presume that the record, had it been properly
preserved, would have supported the action of the trial court.”); Leek v. Powell, 884
S.W.2d 118, 121 (Tenn. Ct. App. 1994) (“In the absence of a transcript or statement of
the evidence, we must conclusively presume that every fact admissible under the
pleadings was found or should have been found favorably to the appellee.”).
Of the issues raised by Employee, the only issue properly before the court that was
addressed at the compensation hearing was the trial court’s exclusion of Dr. McCoy’s
report. 5 The court observed that Employee submitted no medical proof to establish that
his alleged injury arose out of and occurred in the course and scope of his employment as
required by Tennessee Code Annotated section 50-6-102(12) (2022). Although
Employee attempted to file Dr. McCoy’s report, which he believes is relevant to his case,
he did not do so until seven days prior to the compensation hearing. All medical proof
was due no later than ten business days prior to the hearing, pursuant to both the
scheduling order and the regulations of the Court of Workers’ Compensation Claims. See
Tenn. Comp. R. & Regs. 0800-02-21-.16(2)(a) (2022). Moreover, even if timely
submitted, the report is unsigned and unauthenticated and is inadmissible hearsay.
4
Employer filed a brief on September 26, 2023, one day after the deadline to file its brief had expired,
and it was not accompanied by a motion to accept the late filing. See Tenn. Comp. R. & Regs. 0800-02-
22-.06(3) (2020). Accordingly, we have not considered the brief in the resolution of this appeal.
5
The trial court’s order indicates that Employee claimed he was wrongfully terminated by Employer
following the alleged work injury, but, as stated by the trial court at that time, the Court of Workers’
Compensation Claims does not have jurisdiction over claims of wrongful termination. Given that we also
have no such jurisdiction, there is no need to discuss this allegation on appeal.
4
Counsel for Employer timely objected in writing to its admissibility. We can find no
abuse of discretion in the trial court’s exclusion of the report. See Henderson v. SAIA,
Inc., 318 S.W.3d 328, 335 (Tenn. 2010) (an abuse of discretion occurs when the trial
court’s decision causes an injustice by applying an incorrect legal standard, reaching an
illogical conclusion, or by resolving the case based on a clearly erroneous assessment of
the evidence).
Based on our review of the court’s compensation hearing order, none of the other
issues raised by Employee were raised at trial. As we have stated previously:
It is well-established that, apart from limited exceptions not applicable here,
issues not presented to and decided by the trial court will not be considered
by appellate courts. This rule has been described as a “cardinal principle of
appellate practice.” Consequently, when a party fails to raise an issue in the
trial court, the party waives its right to raise that issue on appeal. The
rationale for the rule is that the trial court should not be held in error when
it was not given the opportunity to rule on the issue or the argument being
advanced on appeal. If the rule were otherwise, parties could forego
bringing to the trial court’s attention a potentially dispositive error or issue
and then, if dissatisfied with the outcome, essentially ambush the trial
court’s decision on appeal based on the error or issue that could have been
raised below. To avoid this untenable situation, “[i]t has long been the
general rule that questions not raised in the trial court will not be
entertained on appeal.” Indeed, in most instances, an issue raised for the
first time on appeal will be deemed waived.
Long v. Hamilton-Ryker, No. 2015-07-0023, 2015 TN Wrk. Comp. App. Bd. LEXIS 23,
at *14-15 (Tenn. Workers’ Comp. App. Bd. July 31, 2015) (internal citations omitted).
In short, Employee has provided no documentation that any of the other issues he
attempts to raise in his notice of appeal or his statement were raised at trial, and thus we
conclude they have all been waived.
Conclusion
For the foregoing reasons, we affirm the court’s order and certify it as final. Costs
on appeal have been waived.
5
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Reazkallah Abdelshahaed ) Docket No. 2021-05-0272
)
v. ) State File No. 800172-2021
)
Taylor Fresh Foods, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Dale A. Tipps, Judge )
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 2nd day
of October, 2023.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Reazkallah Abdelshahaed X X X reazkallahabdelshahaed@yahoo.com
456 Cedar Park Cir.
LaVergne, TN 37086
Peter S. Rosen X prosen@vkbarlaw.com
Dale A. Tipps, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov