           •   Hasem Kaddoura;
           •   Nimat Kaddoura; and
           •   Bashar kaddoura.


       The following exhibits were admitted into evidence at the Expedited Hearing:

                  •   Exhibit 1 State of Tennessee Secretary of State Filing Information for
                      Big K Food Market & Liquors, Inc.;
                  •   Exhibit 2 Table of damages;
                  •   Exhibit 3 Certified medical records of Erlanger Health System;
                  •   Exhibit 4 Certified medical records of Memorial Health Care System;
                      and
                  •   Exhibit 5 Thumb drive containing digital recordation of surveillance
                      camera images depicting the August 6, 2014 incident in which Employee
                      was allegedly injured.

       The Court designated the following as the technical record in this claim:

                  •   Petition for Benefit Determination filed August 29, 2014;
                  •   Dispute Certification Notice filed September 30, 2014;
                  •   Employee's Request for Expedited Hearing filed October 6, 2014; and
                  •   Employee's Request for Initial Hearing filed October 21, 2014.

The Court did not consider attachments to the above filings unless admitted into evidence at the
Expedited Hearing.

                                       History of Claim

        This claim arises from an August 6, 2014 incident in which Employee alleges he was
injured when a vehicle crashed through the front window of the comer grocery store Employee
operated in Chattanooga, Tennessee. Employee filed a Petition for Benefit Determination in this
claim on August 29, 2014 in which he alleges that, at the time of the above-described incident,
he was present at the store while performing duties in the course and scope of his employment.

       Employer is uninsured for workers' compensation risks. The Dispute Certification
Notice filed in this claim on September 30, 2014 indicates it is Employer's position that
Employee was not injured in the course and scope of employment. Employer did not file a First
Report oflnjury or a Notice of Denial, nor has it paid benefits, in this claim.

       The Court scheduled an in-person Expedited Hearing on November 3, 2014. Employee's
attorney proceeded with the hearing as scheduled despite the fact her client was not present.
Employer was not represented by an attorney at the hearing.



                                                2
                                  Employee's Contentions

       Employee's attorney sought to establish his claim to the benefits requested by calling
Employer's owner and her sons as witnesses. Employee's lawyer contended he suffered injuries
to his neck, back, right shoulder, and right knee when a vehicle crashed through the front
window of the store at which he worked as a night stock clerk. Employee's attorney insisted that
Employee was in the store as an employee at the time of the occurrence of the above-described
incident. Accordingly, Employee's attorney contended the injuries her client sustained arose
primarily in the course and scope of his employment and he is thus entitled to an award of
medical and temporary disability benefits.

                                   Employer's Contentions

       Employee's attorney called Employer's owner and her sons as witnesses at the Expedited
Hearing. Employer's contentions are taken from the technical record and from the testimony of
Employer's owner and her sons at the Expedited Hearing.

       Employer's owner testified that, approximately a week prior to August 6, 2014, she
agreed to allow Employee to work a trial period of employment. Employer's owner stated that
Employee had shopped in the store on a daily basis for years. Employer's owner testified that,
when the vehicle struck the store at 1:37 p.m. on August 6, 2014, Employee was not scheduled
to work and was in the store as a customer.

        The sons of Employer's owner testified that they reviewed a surveillance video which
shows that the vehicle which struck the store did not intrude into the area of the store then
occupied by Employee. Hasem Kaddoura, a son of Employer's owner, testified he saw
Employee at the scene shortly after the vehicle struck the store and he did not complain of, nor
exhibit visible signs of, injury.

                          Findings of Fact and Conclusions of Law

                                       Standard Applied

        When determining whether to award benefits, a workers' compensation judge must
decide whether, based on the evidence introduced at the Expedited Hearing, the moving party is
likely to succeed on the merits at the Compensation Hearing. See generally, McCall v. Nat 'l
Health Care Corp., 100 S.W. 3d 209, 214 (Tenn. 2003). In a workers' compensation action,
Employee shall bear the burden of proving each and every element of the claim by a
preponderance of the evidence. Tenn. Code Ann. § 50-6-239(c)(6). Employee must show the
injury arose primarily out of and in the course and scope of employment. Tenn. Code Ann. § 50-
6-102(13).




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                                    Dispositive Factual Finding

        In deciding this claim, this Court considered the testimony of witnesses at the Expedited
Hearing and the exhibits introduced therein. This Court also considered the technical record in
the claim On the basis of the above, this Court finds that, at the time he allegedly sustained the
injuries which form the basis of this claim, Employee was present at Employer's premises as a
customer. As such, Employee did not sustain an injury by accident which arose primarily in the
course and scope of his employment and thus is not entitled to the workers' compensation
benefits he seeks. This finding is dispositive of the claim and it is not necessary that the Court
decide whether Employee was injured in the subject incident.

                                   Application ofLaw to Facts

        Employee's attorney proceeded with the Expedited Hearing despite the fact her client did
not attend. She sought to establish her client's claim to the benefits requested by the introduction
of certified medical records and through the testimony of Employer's owner and her sons, whom
she called as witnesses during the hearing. Employee's attorney called for the rule of
sequestration of witnesses. Hasem Kaddoura was designated to remain in the hearing room as
Employer's company representative. Employee's attorney did not object to Mr. Kaddoura
remaining in the hearing room. At times, Mr. Kaddoura attempted to introduce evidence by
interpreting his mother's testimony. The Court sustained Employee's attorney's objection to Mr.
Kaddoura's attempts to do so and did not consider as evidence any comments or testimony made
in this manner.

        Under Tennessee law, an injury occurs in the course and scope of employment if it:
"takes place within the period of the employment, at a place where the employee reasonably may
be, and while the employee is fulfilling work duties or engaged in doing something incidental
thereto. Wilhelm v. Krogers, 235 S.W.3d 122, 127 (Tenn. 2007). An employee who sustains an
injury on the employer's premises, but while the employee is engaged in a personal activity
during non-work hours, is not entitled to workers' compensation benefits. See Webster v. Seven-
Up Bottling Co., 211 Tenn. 8, 362 S. W 2d 244 (1962) (employee injured while meeting a co-
worker at his work site to drink alcoholic beverages after hours); Parish v. Highland Park
Baptist Church, 2011 Tenn. LEXIS 964 (Tenn. 2011) (employee injured riding a horse during off
hours at the church camp where he was employed); McClain v. Holiday Ret. Corp., 2002 Tenn.
LEXIS 506 (Tenn. Workers ' Comp. P. 2002) (employee injured while packing belongings after
work hours at an on-site apartment provided by employer).

         Nimat Kaddoura is Employer's owner. She was called as a witness by Employee's
attorney and testified she is responsible for the day-to-day operation of the store. Mrs. Kaddoura
testified that she agreed to allow Employee, a long-time customer of the store, to work at the
store for a two (2)-week trial period to determine whether he or another person would be selected
to fill the night stock clerk position. Mrs. Kaddoura testified that Employee's trial period of
employment began five (5) days before the alleged date of injury. She testified Employee's
regularly-scheduled hours were between 6:00 p. m. and 10:00 p.m.

       Mrs. Kaddoura testified that, on the day Employee was allegedly injured, she asked him


                                                 4
to come in at 10:00 a. m. to observe the beer deliveries made to the store. She stated that the
deliveries were completed by II :00 a. m. and she told Employee to go home and return at his
regularly-scheduled starting time of 6:00 p. m. Mrs. Kaddoura testified she was not present
when the alleged injury occurred at 1:37 p.m., but that Employee was not scheduled to work at
that time.

         Hasem Kaddoura was called as a witness by Employee's attorney. He testified he is the
son of Employer's owner, Nimat Kaddoura. He testified that he had assisted his mother in the
operation of the store for the past twenty-seven and one-half (27 ~) years. Hasem Kaddoura
testified that the stock clerk's duties were to stock items onto the store's shelves and to act as a
watchman for the store during the evening hours. He testified there is no need for a stock clerk
during the daytime hours in which the store operates.

         Bashar Kaddoura was called as a witness by Employee's attorney. He testified he is the
son of Employer's owner. He testified he has a better knowledge of computers than does his
mother and brother Hasem and, for that reason, he reviewed the images recorded by the nine
digital surveillance cameras at the store for the purpose of transferring those images onto a
thumb drive to preserve them for the purpose of insurance documentation. Bashar Kaddoura
testified that it was necessary to preserve the images onto a thumb drive because the cameras
continuously record and have the capacity to store only twenty-four (24) days of recorded
images. He testified that images recorded more than twenty-four (24) days in the past are
automatically erased. He testified the thumb drive introduced as Exhibit 5 at the Expedited
Hearing contains images of the moment when the vehicle struck the store at 1:37 p. m. on
August 6, 20I4, plus images depicting the activity which occurred in the store during the ten (10)
minutes before and the ten (1 0) minutes after the moment of impact.

        Bashar Kaddoura experienced difficulty pulling up on a computer screen the images
preserved on the thumb drive. After several minutes of effort, he was able to pull up a depiction
of the store recorded by an inside camera. Bashar Kaddoura testified the camera was directed at
the cash register station of the store. By the spontaneous responses of the persons depicted in the
video, it is apparent an unusual event occurred at the store at 1:37 p. m. on August 6, 2014
(assuming the accuracy of the date and time digitally shown on the video depiction).
Employee's attorney did not dispute that the unusual event depicted on the video was that caused
by a vehicle crashing through the front of the store.

        The video shown at the Expedited Hearing was taken by a camera stationed at the front of
the store. The camera was directed toward an area enclosed on all four (4) sides by counters.
The store's cash register is located in the area depicted in the subject video. Hasem Kaddoura
identified a male depicted in the recording as Employee. Employee's attorney confirmed it
appeared the person identified as Employee looked like her client. During the moments before
the vehicle crashed into the store, the person identified as Employee sat or stood behind, but not
inside, the counter of the cash register area nearest the back of the store.

       During the several minutes depicted by the recording, Employee did not put up stock nor
appear to perform any other activity which benefitted Employer's course of business. Nothing
depicted in the recording rebuts the testimony of Nimat Kaddoura that, at the time the vehicle


                                                 5
struck the front of Employer's store, Employee was in the store as a customer or otherwise in
furtherance of a personal mission. Employee was not present at the hearing to testify and, as
such, did not offer evidence of what he was doing at the time the vehicle struck the store.
Employee's attorney did not present evidence that the time and date depicted by the video was
incorrect.

               Based primarily on the testimony of Nimat Kaddoura, this Court finds that the
preponderance of the evidence introduced at the Expedited Hearing indicates that, when the
alleged injurious incident occurred, Employee was present at Employer' s premises at a time of
day outside his regularly-scheduled hours. This Court further finds that, at the time the vehicle
struck Employer' s store, Employee was not engaged in activity in the course and scope of his
employment with Employer. Accordingly, this Court finds that, if this issue proceeds to a
Compensation Hearing on the evidence presented, Employee is unlikely to prevail in his burden
of establishing that he was injured primarily in the course and scope of his employment by
Employer. See McCall v. Nat 'I Health Care Corp., supra.


        IT IS, THEREFORE, ORDERED as follows:

        1. The claim of Employer against Employer for the medical and temporary disability
           benefits requested is denied on the grounds that the alleged injury is not compensable
           because it did not arise primarily in the course and scope of his employment by
           Employer; and

       2. This claim is set for Initial Hearing at 9:30 a. m. on Tuesday, November 25, 2014.
          The Initial Hearing shall be conducted by telephone. The parties shall telephone the
          Court at 855-747-1721 (toll free) or 615-741-3061 on the date and at the time set
          forth above.

Initial Hearing:

       An Initial Hearing has been set with Judge Thomas Wyatt, Court of Workers
Compensation Claims, on November 25, 2014, at 9:30a.m. Eastern Standard Time. You must
call615-741-2051 or toll free at 855-747-1721 to participate in the Initial Hearing.
Please Note: You must call in on the scheduled date and time to participate. Failure to call in
may result in a determination of the issues without your further participation.

     ISSUED AND FILED WITH THE COURT OF WORKERS' COMPENSATION
CLAIMS ON THE 14TH DAY OF NOVEMBER, 2014.

                                                          VA~~~
                                                           Judge Thomas Wyatt
                                                           Tennessee Court of Workers'
                                                           Compensation Claims
                                                           540 McCallie Avenue, Suite 600
                                                           Chattanooga, TN 37402


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 Right to Appeal :

     Tennessee Law allows any party who disagrees with this Expedited Hearing Order to appeal
 the decision to the Workers' Compensation Appeals Board. To file a Notice of Appeal, you
 must:

       1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal".

       2. File the completed form with the Court Clerk within seven (7) business days of the date
          the Expedited Hearing Order was entered by the Workers' Compensation Judge.

       3. Serve a copy of the Request for Appeal upon the opposing party.


                                    CERTIFICATE OF SERVICE

         I hereby certify that a true and correct copy of the Expedited Hearing Order was sent to
 the following recipients by the following methods of service on this the 14th day of November,
 2014.


Name                    Certified   First   Via   Fax       Via     Email Address
                        Mail        Class   Fax   Number    Email
                                    Mail
 Carmen    Ware,                                             X      cyware@thewarelawfirm.com
Atty.
 Big   K    Food                    X                               Mail c/o Hasem Kaddoura, 8
Market & Liquors,                                                   Trenton Street, Red Bank, TN
Inc.                                                                37415




                                                      Thomas Wyatt
                                                      Workers' Compensation Judge




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