SANTOS, JANSI CHAVEZ v. Barry Hooper, d/b/a Chick-Fil-A , 2021 TN WC 202 ( 2021 )

FILED
Jul 21, 2021
01:34 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
JANSI CHAVEZ SANTOS, ) Docket No. 2021-06-0094
Employee, )
v. )
BARRY HOOPER, d/b/a ) State File No. 800048-2021
CHICK-FIL-A, )
Employer, )
and ) Judge Joshua Davis Baker
ARCH INSURANCE COMPANY, )
Carrier. )
___________________________________________________________________
EXPEDITED HEARING ORDER
____________________________________________________________________
In a July 7, 2021 expedited hearing, Mr. Chavez Santos requested benefits for an
alleged work injury to his right hand and wrist. The Court denies his request because it
determines he is not likely to prove at a final hearing that his injury arose primarily out of
the course and scope of employment.
Claim History
Mr. Chavez Santos alleged he injured his right hand and wrist at Chick-Fil-A on
December 7, 2020, when lifting a basket of chicken nuggets. He testified that weight of
the basket bent his arm and struck his wrist against a hard surface.
The next day, at Clinica Hispana La Paz, he complained of right-hand, right-wrist,
and right middle-finger pain and numbness with “onset 2 ½ months ago.” The clinician
noted that Mr. Chavez Santos attributed his injury to repetitive slicing in a restaurant
kitchen and advised him not to work for five days, until December 13. She recommended
a splint and imposed right-hand restrictions of no repetitive slicing or lifting more than
twenty pounds for two weeks.
Mr. Chavez Santos said he gave the work excuse to Egdolinda Ulloa, Chick-Fil-A’s
kitchen manager and his friend from Honduras who hired him and helped him move to
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Tennessee. He testified that she reacted angrily, threw the work excuse in his face and
refused to help him, even though he told her his injury happened at work.
Contrary to that, Ms. Ulloa testified that when Mr. Chavez Santos presented the
work excuse, she told him he would have to go home, since the clinician wrote that he
could not work. When he insisted on working, she explained Chick-Fil-A could not
accommodate any restrictions until December 13, the day the clinician noted he could
return to work.
Ms. Ulloa further testified that Mr. Chavez Santos did not claim a work injury when
he presented the excuse, and she did not suspect a work injury for a few reasons. For one,
she worked within eyesight and earshot of him on December 7 and did not witness his
injury or receive any accident complaint. Also, she testified that he first complained of
right-wrist pain to her when he still lived in Miami, before working at Chick-Fil-A.
Moreover, from the witness stand, Ms. Ulloa paraphrased a September 14, 2020 text
exchange in which Mr. Chavez Santos asked her where he should go for medical care for
his right wrist. She recommended La Paz. And when she suggested a possible cause for
his injury, she testified that he responded, “I don’t believe it because I’ve been having this
pain since I was in Miami.” She said he wrote in another text, “It hurts really bad, like my
wrist and my middle finger, and it [is] weird because I don’t remember to hurt [sic] myself
on anything.” In another text, she said that he complained, “It’s been two months with this
pain in my right hand, and yesterday, it don’t [sic] let me sleep.”
Gavin Royal, former director of operations for the Chick-Fil-A store, testified that
Mr. Chavez Santos never reported a work injury, although he acknowledged that he did
not ask whether Mr. Chavez Santos’s injury was work-related. However, out of sympathy
and concern, he asked the store’s owner-operator, Barry Hooper, to pay Mr. Chavez Santos
for the three days the La Paz clinician excused him from work.
Mr. Hooper testified that he paid Mr. Chavez Santos for the three days he missed
work and explained he had no incentive to suppress a work injury, as his workers’
compensation insurance coverage would pay any needed benefits. His testimony echoed
Mr. Royal’s and Ms. Ulloa’s testimony that Mr. Chavez Santos did not report a work-
related injury.
For his part, Mr. Chavez Santos claimed that the clinician from La Paz inaccurately
recorded his history; Ms. Ulloa exhibited prejudice toward him because of a personal
disagreement involving a mutual friend; and Chick-Fil-A employees discriminated against
him. Further, he stated he lied to Ms. Ulloa in text messages because he feared losing his
job if he reported a work injury.
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Chick-Fil-A’s witnesses denied discriminating against Mr. Chavez Santos,
described how they process and respond to work-related injuries within minutes or hours,
and claimed they did not know Mr. Chavez Santos reported a work injury until the
insurance company contacted them in January. Specifically, Mr. Royal said he relied
heavily on video surveillance to document work injuries. But by the time he learned of
Mr. Chavez Santos’s allegation, the video surveillance from the night of the alleged injury
was no longer available, as the videotape purged after thirty days.
Findings of Fact and Conclusions of Law
Mr. Chavez Santos need only present sufficient evidence at this stage that he is
likely to prevail at a final hearing. See Tenn. Code Ann. § 50-6-239(d)(1) (2020); McCord
v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar.
27, 2015).
Under Workers’ Compensation Law, Mr. Chavez Santos must prove he suffered an
injury caused by a specific incident or set of incidents arising “primarily out of and in the
course and scope of employment,” which means the employment contributed more than
fifty percent in causing the injury, considering all causes. Tenn. Code Ann. § 50-6-
102(14)(A)-(B).
Given the testimony of his supervisors, medical records and text messages, the
Court finds Mr. Chavez Santos’s testimony was not credible concerning the timing or cause
of his injury. Certain characteristics are indicative of credibility and reliability, such as
self-assuredness, calmness, steadiness, confidence, forthcoming responses, and
reasonableness. Kelly v. Kelly, 445 S.W.3d 685, 694-95 (Tenn. 2014).
Mr. Chavez Santos’s testimony about the evidence unfavorable to his claim is not
persuasive. In text messages and medical records, he espoused varying causes for his
injury, ranging from descriptions of an acute injury to a gradual injury to not knowing how
he hurt himself. The Court finds that he did not know what caused his injury.
Mr. Chavez-Santos’s credibility was further damaged by his admission that he lied
to Ms. Ulloa about how his injury occurred. He explained that he lied because he feared
losing his job. The text messages, however, were sent several months before December 7,
2020, the date Mr. Chavez-Santos alleged he became injured at work.
Likewise, Mr. Chavez-Santos’s claim that the clinician inaccurately recorded his
complaints is not credible, given the number of times the clinician referenced his complaint
that repetitive slicing caused his injury. She even centered restrictions around it. Further,
Ms. Ulloa corroborated the clinician’s notation that Mr. Chavez Santos’s injury occurred
far earlier than the day before he visited the clinic.
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In sum, the Court does not find Mr. Chavez Santos gave credible testimony but finds
his supervisors did. Considering all of the testimony, and the medical record noting a
different type of injury than alleged in his testimony, the Court finds Mr. Chavez Santos
failed to show he suffered a specific incident causing his injury. The Court, therefore,
holds he is unlikely to prevail at a final hearing in proving he suffered an injury arising
primarily out of employment.
IT IS ORDERED as follows:
1. The Court denies Mr. Chavez Santos’s requested relief at this time.
2. The Court sets this claim for a scheduling hearing on Monday, September 20,
2021, at 9:30 a.m. Central Time. The parties must call (615) 741-2113 or toll-
free at (855) 874-0474 to participate. Failure to call might result in a
determination of the issues without the party’s participation.
ENTERED July 21, 2021.
___________________________________
Joshua Davis Baker, Judge
Court of Workers’ Compensation Claims
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APPENDIX
Exhibits
1. Medical records filed by Employer on June 29, 2021
2. Mr. Chavez Santos’s Affidavit
3. Text messages between Mr. Chavez Santos and Ms. Ulloa
4. Excerpts from Mr. Chavez Santos’s deposition, collective exhibit
Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employer’s Prehearing Statement
5. Employer’s Witness and Exhibit List
6. Employer’s Revised Witness and Exhibit List
7. Employer’s Revised Prehearing Statement
8. Employer’s Pre-trial Brief
9. Employee’s Motion for Continuance
10. Order Denying Continuance
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on July 21, 2021.
Name Certified Via Via Service sent to:
Mail Fax Email
Jansi Chavez Santos, X chavezjancy88@gmail.com
Employee
Ashley McGee, X abmcgee@mijs.com,
Greg Fuller; ghfuller@mijs.com,
Employer’s Attorneys kmslusar@mijs.com
____________________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
Wc.courtclerk@tn.gov
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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