Reazkallah, Maikel v. Dynamic Security, Inc. , 2017 TN WC 205 ( 2017 )

FILED
Xovember 7.2017
TN COURT OF
1\'0RKE.RS' COl,IPI.NSATION
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Tim.e 2:15 Pl .I
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT NASHVILLE
Maikel Reazkallah, ) Docket No. 2017-06-0707
Employee, )
v. )
Dynamic Security, Inc., ) State File No. 28056-2017
Employer, )
And )
Arch Ins. Co., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER
Maikel Reazkallah filed a Request for Expedited Hearing seeking temporary
disability benefits, which this Court heard on November 2. The central legal issue is
whether Mr. Reazkallah' s termination ended his entitlement to temporary partial
disability benefits. The Court finds Dynamic Security failed to prove it terminated Mr.
Reazkallah for misconduct under ordinary workplace rules; thus, the Court holds Mr.
Reazkallah is entitled to past temporary disability benefits. Dynamic Security shall
promptly file a Wage Statement so the Court may enter an appropriate order granting
benefits.
History of Claim
Mr. Reazkallah worked as an officer for Dynamic Security. On April11, 2017, he
was involved in an on-the-job confrontation with a client's supervisor, injuring his right
elbow. Mr. Reazkallah reported the incident, but Dynamic Security did not offer
treatment or provide a panel of physicians.
Mr. Reazkallah sought treatment with Dr. Fawwaz Alkayyali but submitted no
medical records documenting it. He introduced two letters into evidence dated April 12
and 13, which stated Dr. Alkayyali assigned light-duty restrictions for one month. 1
1
The limited medical records introduced at the hearing include the two previously-mentioned letters from
1
Mr. Reazkallah presented the April 12 letter to Dynamic Security, and his
supervisor sent him home. However, five days later, Dynamic Security accommodated
his restrictions and assigned him work at Dometic to "watch [a] fire alarm." At Dometic,
Mr. Reazkallah mistakenly set off the alarm, alerting the police. The following day,
Dynamic Security told Mr. Reazkallah that Dometic staff caught him sleeping on duty.
Dynamic Security terminated him. Mr. Reazkallah denied falling asleep at Dometic,
stating that the loud alarm made it impossible. He said that the individual who fired him
was angry about him alerting the authorities during his shift at Dometic.
Dynamic Security offered the testimony of Robert Zickgraf, its regional manager.
Mr. Zickgraf testified he received Mr. Reazkallah's personnel file "from the home office
earlier this week." He was not employed with Dynamic Security at the time of Mr.
Reazkallah's termination. Dynamic Security attempted to introduce documents from Mr.
Reazkallah's personnel file into evidence, but the Court excluded them as inadmissible
hearsay. 2
As for the relief Mr. Reazkallah requested, he testified his elbow healed and he
needs no further treatment. Dynamic Security, through counsel, agreed to pay any
charges associated with Mr. Reazkallah's visits to Dr. Alkayyali for the work injury.
Thus, the only issue is Mr. Reazkallah's entitlement to temporary disability benefits.
Dynamic Security failed to file a Wage Statement, Notice of Denial or First Report of
Injury. 3
Findings of Fact and Conclusions of Law
Mr. Reazkallah has the burden of proof on the essential elements of the claim.
Dr. Alkayyali. The other medical records are unrelated to this claim; Mr. Reazkallah testified at length
about an injury to his shoulder that occurred after April 11 and while working for a different employer.
2
Dynamic Security asserted that the business records exception to the hearsay rule applies. Tennessee
Rule of Evidence 803(6) allows for the admissibility of records made by a person with knowledge and a
business duty to record if kept in the course of a regularly conducted business activity and if it was the
regular practice of that business activity to make the records, "as shown by the testimony of the custodian
or other qualified witness." (Emphasis added.) Here, Mr. Zickgraf testified he was not employed at
Dynamic Security at the time of Mr. Reazkallah's termination. He was not the records custodian nor was
he an "other qualified witness." Dynamic Security did not request that the Court mark the proffered
exhibit for identification purposes only.
3
The Bureau's Claims Handling Standards require the filing of a decision on the compensability of the
claim within fifteen days of receiving notice of the accident, as well as a First Report of Injury and a
Wage Statement. See generally Tenn. Comp. R. & Regs. 0800-2-14. The Court finds Dynamic Security
failed to comply with the Bureau's Claims Handling Standards and refers the matter to the Compliance
Unit for consideration of the imposition of a penalty.
2
Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6
(Aug. 18, 20 15). However, since this is an expedited hearing, he only has to present
sufficient evidence from which the Court can determine he is likely to prevail at a hearing
on the merits in order to meet his burden. McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
The Court applies these general standards to the specific issue of Mr. Reazkallah's
request for past temporary disability benefits. Dr. Alkayyali did not excuse Mr.
Reazkallah from work but rather placed restrictions upon him. The Workers'
Compensation Law provides that an injured worker is entitled to temporary partial
disability benefits when the temporary disability is not total. See Tenn. Code Ann. § 50-
6-207(1 )-(2) (20 17). Temporary partial disability refers to the time, if any, during which
the injured employee is able to resume some gainful employment but has not reached
maximum recovery. Mace v. Express Servs., Inc., 2015 TN Wrk. Comp. App. Bd.
LEXIS 49, at *8 (Dec. 11, 2015).
In this case, no one disputed that Mr. Reazkallah was on restricted duty for one
month commencing on April 12. 4 Dynamic Security was able to accommodate his
restrictions until it terminated him on or about April 20. Dynamic Security contended it
terminated him for cause. If the Court finds Dynamic Security terminated Mr.
Reazkallah due to a violation of workplace rules or ordinary workplace expectations, it is
relieved of the obligation to pay temporary partial disability benefits. Thus, the sole
factual determination the Court must make is whether Mr. Reazkallah's temiination was
proper under workers' compensation principles. These principles provide that courts
must "consider the employer's need to enforce workplace rules and the reasonableness of
the contested rules." Mace, at *9. An employer will not be penalized-in this case,
required to pay TPD-for enforcing a policy if the Court determines "( 1) that the actions
allegedly precipitating the employee's dismissal qualified as misconduct under
established or ordinary workplace rules and/or expectations; and (2) that those actions
were, as a factual matter, the true motivation for the dismissal." ld.
Here, Dynamic Security may reasonably expect that its employees will not sleep
on the job. What it lacks is proof that Mr. Reazkallah actually slept at Dometic. He
credibly testified that he did not sleep at work, and Dynamic Security offered no contrary
evidence from anyone with direct knowledge of the events in question. The Court is
constrained to consider only the proof before it and finds Mr. Reazkallah did not sleep at
Dometic. Therefore, Dynamic Security failed to prove he engaged in misconduct, and it
is not relieved of its duty to pay temporary disability benefits. The Court holds at this
time that Mr. Reazkallah established he is likely to prevail at a hearing on the merits that
4
Mr. Reazkallah argued he lost income for two months, but the limited medical proof is that his physician
placed him on light-duty for one month only.
3
he is entitled to past temporary disability benefits from April 12 through May 12, 20 17. 5
However, the Court cannot enter an order granting temporary partial disability benefits in
an exact dollar amount because the record contains no proof of Mr. Reazkallah's wages. 6
Upon receipt of this information, the Court will calculate the award.
IT IS, THEREFORE, ORDERED as follows:
1. Dynamic Security shall file a Wage Statement within seven business days of
entry of this order so that the Court may make an appropriate order granting Mr.
Reazkallah's request for past temporary disability benefits.
2. In accordance with Dynamic Security's counsel's statement on the record,
Dynamic Security shall pay all medical bills associated with Mr. Reazkallah's visit
to Dr. Alkayyali for treatment of the April 11, 2017 work injury. Mr. Reazkallah
shall promptly deliver copies of the bills to Dynamic Security's counsel for
immediate payment.
3. The Court refers this case to the Compliance Unit for consideration of the
imposition of penalties regarding it failure to file a C-20, Wage Statement and
decision of compensability.
4. This matter is set for a Scheduling Hearing on January 8, 2018, at 9:30 a.m.
Central. You must call 615-532-9552 or toll-free at 866-943-0025 to participate
in the Hearing. Failure to call may result in a determination of the issues without
your participation.
ENTERED this the 7th day of November, 2017.
Court of Workers' Compensati
5
Neither party introduced any proof regarding whether Dynamic Security paid Mr. Reazkallah through
the date of his termination, but if it did it is entitled to credit for that payment.
6
Mr. Reazkallah stated in his closing argument, after the close of proof, that he earned $10 per hour and
worked forty hours per week.
4
APPENDIX
Exhibits:
1. Affidavit
2. Dynamic Security incident report
3. Employee's Choice of Physician
4. Rama Medical Group records
5. Southern Hills Medical Center records
6. U.S. Health Works records
7. Summit Medical Center records
8. Attendance reports, Southwest Airlines
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employer's Position Statemene
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent to these recipients by
the following methods of service on the 7th day ofNovember, 2017.
Name Certified Via Via Service sent to :
Mail Fax Email
Maikel Reazkallah, self- X X 5161 Rice Rd., #261, Antioch,
represented employee TN 37013;
maikel.reazhkallahla),vahoo.com
Sean Hunt, employer's X sean@thehuntfirm.com
attorney
Compliance Unit X WCComp lianceProgramla),tn. gov
orkers' Compensation Claims
WC.CourtClerk@tn.gov
7
The Court considered only the exhibits that it admitted into evidence.
5