Comfort, Rachel v. Access Dental Lab

FILED
Jun 05, 2023
07:00 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Rachel Comfort, ) Docket No. 2022-06-2242
Employee, )
v. )
Access Dental Lab, ) State File No. 801209-2022
Employer, )
And )
Federal Ins. Co., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER DENYING BENEFITS
The Court held an expedited hearing on June 1, 2023, regarding Rachel Comfort’s
entitlement to medical and temporary disability benefits. Access Dental Lab denied the
claim, challenging whether the injury occurred at work and the alleged date of injury. For
the reasons below, the Court finds that Ms. Comfort did not prove a specific incident caused
her injury, that she suffers from a cumulative trauma condition, or the date of injury. The
Court holds that she is not entitled to benefits.
Claim History
Ms. Comfort worked “on the line” for Access Dental Lab. She said her duties
included pushing and pulling boxes and carts. Ms. Comfort testified that, after four months
on the job, her left shoulder “was not really working. It always had a burning sensation.”
The burning sensation spread to her back and neck from continuous heavy lifting, pushing,
and pulling. She told her supervisors and asked to see a doctor, but they did nothing in
response.
So, Ms. Comfort sought treatment twice on her own at the emergency room. She
later saw a primary care doctor, orthopedic specialist, and physical therapist. The only
admissible medical record she offered into evidence was a December 2022 “final report”
of thoracic spine x-rays.
1
She alleged in her petition for benefit determination that she injured her underarms
on February 20, 2022. Ms. Comfort, whose primary language is not English, wrote she
was “pushing boxes to another place several time[s.] The boxes felt but i pick up. the
boxes put the top of another boxes[.] My left shoulder hurt[.]”1 Ms. Comfort also filed an
earlier petition, alleging she injured her left shoulder on February 15, 2022, from “carrying
dental arches” and “carrying heavy boxes.”2 Ms. Comfort testified that she did not
complete the initial petition but “maybe a friend” did for her. The friend, whom she
declined to identify, mistakenly wrote the date of injury as February 15, 2022. Ms. Comfort
signed both petitions below a certification that they are “true and accurate to the best of my
knowledge, information, and belief.”
Heike Brooks, a claims examiner, testified regarding the processing of Ms.
Comfort’s claim. She stated that another examiner in her office initially handled the claim
and took a recorded statement from Ms. Comfort. Access Dental introduced a transcript
of the statement. In it, Ms. Comfort said she became injured on “the 15th.” Ms. Comfort
also stated she was pushing a stack of totes when some of them fell and hit her left shoulder
and neck.
Ms. Comfort could not recall speaking with the claims examiner. She said she was
in pain and on medication, and she suffers from memory loss. She stated several times,
“My brain does not function.” Ms. Comfort denied telling anyone that the date of injury
was February 15 or that a stack of bins hit her on her left shoulder. Access Dental Lab
introduced the transcript of the recorded statement into evidence, and the Court admitted it
over Ms. Comfort’s objection to its content.
Keith Smith, Access Dental Lab’s director of maintenance and safety, also testified
about investigating the claim. He stated he requested surveillance video from the security
department, and security found three videos. After viewing them, Mr. Smith sent them to
the carrier. Afterward, the claim was denied. The denial form states, “There was no
accident or injury arising out of or in the course and scope of employment.”
Access Dental introduced the three videos. Ms. Comfort said she had never seen
them. Mr. Smith authenticated them, and they were allowed into evidence over Ms.
Comfort’s objection. Ms. Comfort said they were “made up” and refused to watch them,
so the Court viewed the videos in chambers.
1
Ms. Comfort’s English proficiency is unclear. She agreed on cross-examination that she worked as an
interpreter for the Afghan army many years ago, interpreting English to Farsi. She communicated at work
in English, sometimes with the help of coworkers. Further, she gave a recorded statement to a claims
examiner in English.
2
The previous case was dismissed without prejudice to its refiling.
2
All three videos depicted the same incident but from different camera angles, and
they are date-stamped “2-15-22.” They showed Ms. Comfort pushing a tall stack of six
empty totes. The top two totes fell to the floor to her right but did not strike her. A few
seconds later, Ms. Comfort placed two totes that did not fall on top of one of the fallen
totes. She moved the two bottom totes in line with other stacked totes. Then, she placed
all the totes back in the stack and walked away, in no apparent distress.
Findings of Fact and Conclusions of Law
Ms. Comfort, as the employee in a workers’ compensation case, has the burden of
proving all essential elements of her claim. Scott v. Integrity Staffing Solutions, 2015 TN
Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). To obtain the requested benefits
at an expedited hearing, Ms. Comfort must show that she is likely to prevail at a hearing
on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2022).
Ms. Comfort must show that she suffered an “injury” as that term is defined in the
Workers’ Compensation Law. Tennessee Code Annotated section 50-6-102(12) states that
an “injury” is either by “accident” or a “cumulative trauma condition” arising “primarily
out of and in the course and scope of employment.” Further, an injury is accidental only if
it is caused by a “specific incident or set of incidents . . . identifiable by time and place of
occurrence[.]” Id. at -102(12)(A).
Here, the pleadings suggest that Ms. Comfort alleged an injury by accident. In this
lawsuit, she wrote on the petition (paraphrasing slightly) that she was repeatedly pushing
boxes when some fell. She picked them up and arranged them on top of the other boxes,
and her left shoulder hurt. In the previous case, she wrote on the petition that she was
carrying heavy boxes. Then, at the hearing, Ms. Comfort testified that, after four months
on the job, her left shoulder “was not really working,” and she felt a “burning sensation”
from continuous lifting, pushing, and pulling. Notably, Ms. Comfort did not testify about
a stack of totes falling on her in her declaration or at the hearing.
As a result, the Court cannot tell whether Ms. Comfort is arguing that she suffered
an injury by accident or a cumulative trauma condition. The Tennessee Supreme Court
has instructed that it is not the role of the trial courts “to construct a litigant’s case or
arguments” for her. Sneed v. Bd. of Prof’l Responsibility of the Sup. Ct. of Tenn., 301
S.W.3d 603, 615 (Tenn. 2010).
Under either theory of the case, Ms. Comfort has not satisfied her burden of proof.
That proof was almost exclusively her testimony, which was not credible. She was unable
to recall giving the recorded statement and repeatedly said that her “brain does not
function.” Further, Ms. Comfort said she had never seen the videos, refused to watch them,
and then claimed, sight unseen, that they were “made up.” She interrupted witnesses,
3
counsel, the interpreter, and the Court, and her overall demeanor was agitated, hesitant,
defensive, and argumentative. See Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014).
Turning to the video evidence, they do not show the totes striking Ms. Comfort
forcefully or even touching her body. The totes fall next to her right side, not her left. She
appears to calmly retrieve the fallen totes and returns them to the stack.
As to when the alleged accident occurred, her petition states February 20. However,
the videos are date-stamped February 15, 2020, which is the same date she alleged in her
first petition and in her recorded statement. Ms. Comfort’s claim that an unidentified friend
mistakenly wrote the wrong date is unpersuasive, as she is the one who certified it to be
true and correct when she signed the pleading.
The Court cannot find that Ms. Comfort has shown a specific incident identifiable
by time that caused her alleged injuries. Nor has Ms. Comfort shown a cumulative trauma
injury from four months of continuous lifting, pushing, and pulling. She offered no proof
that a doctor related her condition to work, and her alleged injury is complicated. As the
Appeals Board held, “Except in the most obvious, simple and routine cases, the claimant
in a workers’ compensation action must establish by expert medical evidence the causal
relationship . . . between the claimant’s injury (and disability) and the employment
activity.” Albright v. Hercules HVAC Pads, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS
66, at *13 (Dec. 20, 2018).
Therefore, the Court holds that Ms. Comfort is unlikely to prevail at a hearing on
the merits that she is entitled to benefits.
IT IS ORDERED AS FOLLOWS:
1. Ms. Comfort’s requested relief is denied at this time.
2. This case is set for a status hearing on August 7, 2023, at 10:45 a.m. Central Time.
You must call 615-532-9552 or at 866-943-0025 to participate. Access Dental Lab
must arrange for a court-certified or -registered interpreter.
ENTERED June 5, 2023.
________________________________________
JUDGE KENNETH M. SWITZER
Court of Workers’ Compensation Claims
4
Appendix
Technical record:
1. Petition for Benefit Determination, May 18, 2022, and Order of Dismissal Without
Prejudice
2. Petition for Benefit Determination, November 29, 2022
3. Dispute Certification Notice, and Additional Information from Employee and
Employer
4. Order Setting Status Hearing
5. Hearing Request
6. Objection to Expedited Hearing on the Record
7. Order on Status Hearing
8. Motion to Continue Expedited Hearing
9. Order Continuing Expedited Hearing
10. Order Resetting Expedited Hearing
11. Employer’s Pre-Expedited Hearing Brief (No attachments)
12. Motion of Witnesses Via Telephone
13. Order Denying Motion for Telephone Appearance
14. Motion of Witnesses Regarding Testimony of Heike Brooks and Keith Smith
15. Order on Motion for Witnesses to Appear by Phone
Evidence:
1. Declaration of Ms. Comfort
2. Affidavit of Heike Brooks
3. Affidavit of Kevin Smith
4. Wage statement
5. Notice of Denial and cover letter
6. Medical records (Identification only)3
7. X-ray, thoracic spine, report signed by Dr. Alex Hall
8. Choice of Physicians form
9. Three videos
10. Transcript of recorded statement of Rachel Comfort, March 21, 2022
11. Previous workers’ compensation claims records (Identification only)4
3
Ms. Comfort offered copies of: unsigned work excuses; a bank statement; emergency room discharge
instructions, a letter conveying mammogram results; primary care physician records signed by a physician
assistant; and appointment notices. The Court did not admit them into evidence because they are not
relevant, nor are they signed by a medical doctor. Tenn. R. Evid. 402; Tenn. Comp. R. & Regs. 0800-02-
21-.16(2)(b) (February, 2022) (Medical records are self-authenticating and admissible when signed by a
physician).
4
The records lacked a certification, and no witness authenticated them, so the Court did not admit them
into evidence.
5
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on June 5, 2023.
Name Certified U.S. Email Service sent to:
Mail Mail
Rachel Comfort, X rachelcomfort@icloud.com
Employee lalia9994@aol.com
James Tucker, X jtucker@manierherod.com
Employer’s Attorney pbarron@manierherod.com
dstevens@manierherod.com
lohman@manierherod.com
_______________________________________
Penny Shrum
Clerk, Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
6
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