ABDELSHAHAED, REAZKALLAH v. TAYLOR FRESH FOODS, INC.

FILED
Nov 29, 2021
09:29 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
REAZKALLAH ABDELSHAHAED, ) Docket No. 2021-05-0273
Employee, )
v. )
)
TAYLOR FRESH FOODS, INC., ) State File No. 800173-2021
Employer, )
And )
)
AMERICAN ZURICH INS. CO., ) Judge Dale Tipps
Insurance Carrier. )
EXPEDITED HEARING ORDER
DENYING BENEFITS
(DECISION ON THE RECORD)
The Court considered this case on November 22, 2021, for an Expedited Hearing
on the record without an in-person hearing. The issue is whether Mr. Abdelshahaed is
likely to prove at a hearing on the merits that he suffered a compensable injury and is
entitled to medical and temporary disability benefits. Because he has not shown that he
was injured at work, the Court holds that he did not meet this burden and denies the
requested benefits.
History of Claim
While working at Taylor, Mr. Abdelshahaed claims he twisted and sprained his knee
on October 16, 2020, when his supervisor pushed him and caused him to fall.
Mr. Abdelshahaed submitted Work Status Reports, the earliest dated August 6,
2020, signed by Dr. William Mayfield.1 The first two reports give a diagnosis of right knee
strain. The 2021 reports simply say “bilateral knee.”
1
He also submitted a translated statement he gave to Taylor on November 4, 2020. However, this statement
references a finger injury, not the knee injury at issue in this claim.
Taylor submitted written statements from Mr. Abdelshahaed’s co-workers and
supervisors, as well as a police report. The statements consistently recount a dispute
between Mr. Abdelshahaed and his supervisor, but none of them mentions any physical
contact or a fall. Instead, they show that after Mr. Abdelshahaed was told to go home, he
went outside and called the police.
The investigating officer’s report states that he spoke to Mr. Abdelshahaed and his
2
son. He also spoke to two witnesses who observed the incident. They reported that the
supervisor never touched or pushed Mr. Abdelshahaed.
Mr. Abdelshahaed filed an Expedited Hearing request seeking a hearing on the
record under Rule 0800-02-21-.15(1)(e). Taylor opposed that request but filed no
argument supporting its position. The Court determined that a review of the written
materials without an evidentiary hearing was appropriate.
Findings of Fact and Conclusions of Law
Mr. Abdelshahaed must provide sufficient evidence from which this Court might
determine he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-
239(d)(1) (2021); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
To prove a compensable injury, Mr. Abdelshahaed must show that his alleged
injuries arose primarily out of and in the course and scope of his employment. This
includes the requirement that he must establish a work-related incident, or specific set of
incidents, identifiable by time and place of occurrence. Tenn. Code Ann. § 50-6-
102(14)(A).
Regarding the requirement to identify a work-related incident, the only evidence
supporting Mr. Abdelshahaed’s version of events is his Rule 72 declaration. His claim that
his supervisor pushed him is contradicted by several written statements, as well as the
police report. Further, the medical records do not support his contention that he suffered a
discrete, identifiable injury on October 16, 2020, as one of Dr. Mayfield’s reports of knee
strain is dated August 6, over two months before the alleged incident. Under these
circumstances, the Court cannot find at this time that Mr. Abdelshahaed is likely prove the
existence of the “work-related incident” required by section 50-6-102(14)(A).
2
Mr. Abdelshahaed speaks little English, so his son was interpreting for him.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Abdelshahaed’s claims against Taylor Fresh Foods, Inc. for medical and
temporary disability benefits are denied at this time.
2. This case is set for a Scheduling Hearing on January 26, 2022, at 9:30 a.m. You
must call toll-free at 855-874-0473 to participate. Failure to call might result in a
determination of the issues without your further participation. All conferences are
set using Central Time.
ENTERED November 29, 2021.
_____________________________________
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Mr. Abdelshahaed’s September 29, 2021 Rule 72 Declaration Under Penalty of
Perjury
2. Wage Statement filed on June 25, 2021, by Taylor Fresh
3. Separation Notice dated November 9, 2020
4. Hughston Clinic Work Status Reports dated August 6 and November 19, 2020, and
June 6 and October 5, 2021
5. Mr. Abdelshahaed’s November 4, 2020 written statement, translated by Neama
Eriby
6. Written statement of Carmen Colon
7. Written statement of Ahmed Hussein
8. Written statement of Amo Lloyd
9. Written statement of Bernardo Martinez
10. October 16, 2020 Investigation Report of Officer M. W. Richert
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Docketing Notice
5. Taylor Fresh Foods’s Position Statement
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on
November 29, 2021.
Name Certified Email Service sent to:
Mail
Reazkallah Abdelshahaed, X X 456 Cedar Park Circle
Employee Lavergne, TN 37086
reazkallahabdelshahaed@yahoo.com
Peter Rosen, X Prosen@vkbarlaw.com
Employer’s Attorney
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
Clerk of the Court of Workers’ Compensation Claims within seven business days of the
date the expedited hearing order was filed. When filing the Notice of Appeal, you must
serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of 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 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 the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
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