                                                                                                FILED
                                                                                              Mar 16, 2020
                                                                                              02:12 PM(CT)
                                                                                            TENNESSEE COURT OF
                                                                                           WORKERS' COMPENSATION
                                                                                                  CLAIMS




                TENNESSEE BUREAU OF WORKERS' COMPENSATION
               IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                                AT NASHVILLE

Jack Riad,                                                 )   Docket No. 2019-06-0652
                    Employee,                              )
                                                           )
                                                           )   State File No. 52406-2018
v.                                                         )
Marriott International, Inc., dba                          )
Gaylord Opryland,                                          )   Judge Kenneth M. Switzer
             Self-Insured Employer.                        )


                                    EXPEDITED HEARING ORDER


       Jack Riad worked long hours on his feet in housekeeping/ maintenance at the
Opryland Hotel, a Marriott property. He sought benefits for an ankle injury, which
Marriott denied asserting that he did not provide timely notice and filed his petition
outside the one-year period allowed by law. For the reasons below, the Court finds he is
not likely to prevail at a hearing on the merits regarding the timely filing of his claim.
The Court denies benefits at this time, but refers the case to the Compliance Program for
consideration of the imposition of penalties against Marriott.

                                               History of Claim

        Mr. Riad started working for Marriott in 2014 in housekeeping as a "runner,"
assisting with special maintenance projects. He testified that the job required him to walk
often and move furniture from room to room. His right ankle began to hurt, and the pain
became severe after working on March 28, 2017. 1

       Mr. Riad sought treatment on his own and took three days off. He went to work
the following Monday, April 3, but the pain remained. Mr. Riad returned to the doctor
the next day. On Wednesday, April 5, he discussed the injury and doctor visit with his

1
    Mr. Riad testified with the assistance of a certified court interpreter.


                                                          1
supervisor, Ilhan Malika. According to Mr. Riad, she questioned why he discussed the
injury as being work-related with the doctor, because he did not report the injury to
security when it happened, and she could not make the report now. According to his
affidavit, Ms. Malika said the injury was not related to work since it was not "apparent...
[s]uch as breakage or injury and blood, so that you can bring security."

       Ms. Malika or Marriott's adjuster did not complete a First Report of Injury at that
time, nor did they offer a panel or make a determination regarding compensability.
Instead, according to Mr. Riad, Ms. Malika recommended that he apply for short-term
disability benefits.

        Mr. Riad did not take that advice. He continued working and treating on his own.
However, the pain remained, causing him to call in sick often, especially after busy times
for the hotel such as the holidays. By April 2018, he testified he had used all his sick
leave and feared losing his job. He went to the doctor on April 6, 2018, and received
work restrictions, which he brought to Marriott's human resources. Mr. Riad's affidavit
states that on April 9, 2018, he again spoke with Ms. Malika, who suspended him from
work. He was "transferred to HR" and "given family leave." Mr. Riad said Marriott
refused to accommodate his restrictions.

       After family leave, he received short-term disability benefits from April 17 until
October 15, 2018. Mr. Riad's application for short-term disability benefits asked if the
disability occurred while at work. He wrote, "[Y]es. About a year ago, as a result of
walking a lot[.]" The application additionally asked whether he believed the injury was
caused by work. The application reads "no," but Mr. Riad testified that he did not write
that answer. Rather, "Jackie" in human resources filled it out.

      A few months later, Marriott's adjuster, Christina Cannon, completed a First
Report of Injury. The report describes the injury as "pain in foot and ankel [sic] is due to
walking while at work." The form is dated July 10, 2018. Marriott denied the claim that
same day. Ms. Cannon's affidavit states that Mr. Riad reported the injury on July 5,
2018.

       Mr. Riad filed a petition for benefit determination on March 29, 2019 .

                       Findings of Fact and Conclusions of Law

      Mr. Riad must show that he is likely to prevail at a hearing on the merits. See
Tenn. Code Ann. § 50-6-239(d)(1) (2019); McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

       The Court first addresses Marriott's notice defense. Tennessee Code Annotated
section 50-6-201(a)(1) requires that an injured employee give written notice of an injury

                                             2
within fifteen days unless it can be shown that the employer had actual knowledge.

       Marriott contended that Mr. Riad failed to provide timely notice of his injury
because he did not report the injury or request medical treatment until July 10, 2018. Mr.
Riad testified that he reported the injury to Ms. Malika on April 5, 2017. Marriott relied
on Ms. Cannon's affidavit to rebut Mr. Riad's testimony.

       When assessing witness credibility, the Tennessee Supreme Court instructed trial
courts to consider whether a witness is "calm or agitated, at ease or nervous, self-assured
or hesitant, steady or stammering, confident or defensive, forthcoming or deceitful,
reasonable or argumentative, honest or biased." Kelly v. Kelly, 445 S.W.3d 685, 694-695
(Tenn. 2014). The Court finds Mr. Riad was calm, at ease, self-assured, steady, confident
and forthcoming. Ms. Cannon's affidavit states that he gave notice on July 5, 2018. The
Court gives Mr. Riad's testimony greater weight than Ms. Cannon's.

       Ms. Cannon's affidavit is silent about any conversations between Mr. Riad and
Ms. Malika. Ms. Cannon is not qualified to make a legal conclusion regarding notice.
More importantly, Ms. Malika did not testify. Tennessee law supports a finding that the
failure of a party to call a witness peculiarly within its power to produce, and whose
testimony "would naturally be favorable" to it, "creates an adverse inference that the
testimony would not favor his contentions." State v. Middlebrooks, 840 S.W.2d 317, 334
(Tenn. 1992). The Court finds that Mr. Riad gave actual notice to Ms. Malika on April 5,
2017, and rejects this defense.

       The Court further finds that Marriott did not file a First Report of Injury or make a
determination about compensability in the months after he initially reported this injury in
April 2017. Rather, Marriott waited until July 10, 2018, to complete these forms, after
Mr. Riad attempted to report the injury again in April 2018.

        Marriott's other defense is that the statute of limitations bars Mr. Riad's claim.
Tennessee Code Annotated section 50-6-203(b)(l) provides that "[i]n instances when the
employer has not paid workers' compensation benefits ... the right to compensation ...
shall be forever barred, unless the notice required by § 50-6-201 is given to the employer
and a petition for benefit determination is filed with the bureau . . . within one ( 1) year
after the accident resulting in injury."

       Applying these principles, Mr. Riad testified that he became injured on March 28,
20 17. As found above, he gave actual notice under section 50-6-20 1 on April 5, 20 17.
He filed his petition on March 29, 2019, past the one-year period to file after the alleged
injury date. The Court holds he is unlikely to prevail at a hearing on the merits that he
filed within one year of the injury.

      As a final matter, the Court is concerned that Marriott might have violated three

                                             3
rules for handling claims.

        First, Tennessee Compilation Rules and Regulations 0800-2-14-.03(1) (October,
1999) provides: "In order to ensure that Workers' Compensation claims are acted on
promptly, employers shall report verbally or in writing all known or reported accidents to
their insurer within one working day of knowledge of injury." Here, Ms. Malika had
knowledge of the alleged injury on April 5, 2017. However, Ms. Cannon did not file a
First Report of Injury until July 2018. It appears to the Court that Ms. Malika did not
report Mr. Riad's alleged injury within one working day of their conversation in April
2017, perhaps due to her flawed belief that an injury must be "apparent" to trigger this
requirement. This question warrants further investigation.

        Second, the rules read, "Decisions on . . . compensability shall be made within
fifteen ( 15) days of verbal or written notice of accident. All pertinent documents of the
[Bureau] of Workers' Compensation shall be filed within fifteen (15) days of verbal or
written notice of accident." Tenn. Comp. R. & Regs. 0800-2-14-.04(7). Mr. Riad did not
receive notice of the denial within fifteen days of reporting the injury on April 5, 2017.
Rather, he received the notice in July 2018, more than sixteen months later. The question
warrants further investigation.

       Third, Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) reads, "[In] any
case when the employee has suffered an injury and expressed a need for medical care, the
employer shall designate a group of three (3) or more independent reputable physicians ..
. from which the injured employee shall select one (1) to be the treating physician." The
Court finds that Marriott failed to offer a panel. This question also warrants further
investigation.

      For these reasons, the Court refers this case to the Compliance Program to
consider the imposition of penalties.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Riad's request for medical and temporary disability benefits is denied at this
      time.

   2. This case is set for a scheduling hearing on May 11, 2020, at 9:00 a.m. Central
      Time. The parties must call 615-532-9552 or toll-free at 866-943-0025 to
      participate. Failure to call might result in a determination of the issues without the
      party's participation.

   3. The Court refers this case to the Compliance Program to consider the imposition
      of penalties as outlined above.


                                             4
      ENTERED March 16,2020.




                                     APPENDIX

Exhibits:
   1. Affidavit of Mr. Riad
   2. First Report of Injury
   3. Notice of Denial
   4. Medical records-submitted by Employer
   5. Restrictions-submitted by Employee
   6. Medical records filed by Employee (Identification only)
   7. Paystub
   8. Affidavit of Christina Cannon
   9. Wage statement

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice and Employer's additional issues
   3. Show Cause Order
   4. Employer's Motion to Dismiss
   5. Request for Expedited Hearing
   6. Employer's Motion to Exclude/Quash/Strike
   7. Employee's Response to Motion to Strike
   8. Order on Show-Cause Hearing
   9. Employer's Expedited Hearing Position Statement
   10. Employer's Motion in Limine




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                              CERTIFICATE OF SERVICE

          I certify that a copy of the Expedited Hearing Order was sent as indicated on
    March 16, 2020.

    Name                    Certified   Regular   Email   Sent to
                             Mail        Mail
    Jack Riad, self-           X                    X     matthew jack74@yahoo.com
    represented employee                                  3140 Hamilton Church Road,
                                                          Apt. 209
                                                          Antioch TN 37013


    Travis Ledgerwood,                              X     tledgerwood@morganakins.com
    Nick Akins,                                           nakins@morganakiilS.com
    em_Qloyer's attorneys




                                           Court of Workers' Compensation Claims
                                           WC.CourtCierk@tn.gov




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