                                                                                            FILED
                                                                                          August 13, 2015

                                                                                         D" COL"RTOF
                                                                                     WORKERS' CO:\IPE::\'"SATIO);
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             IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                            AT CHATTANOOGA

Noble Ali,                                   )     Docket No.: 2014-01-0014
                                             )
               Employee,                     )
v.                                           )     State File No.: 69727 I 2014
                                             )
USXpress Enterprises, Inc.,                  )     Date of Injury: July 2, 2014
                                             )
               Employer,                     )
And                                          )     Judge: Thomas Wyatt
                                             )
Liberty Mutual Ins. Co.                      )
                                             )
               Insurance Carrier/TPA.        )


EXPEDITED HEARING ORDER DENYING BENEFITS ON THE GROUNDS OF
                     COMPENSABILITY


       THIS CAUSE came to be heard before the undersigned Workers' Compensation
Judge for a telephonic hearing on July 17,2015, upon the Request for Expedited Hearing
(REH) filed by the employee, Noble Ali, on November 5, 2014, pursuant to Tennessee
Code Annotated section 50-6-239 (2014). Mr. Ali sought to determine whether the
employer, USXpress Enterprises, Inc. (USX), is obligated to provide medical and
temporary disability benefits for a mental injury he allegedly sustained on July 2, 2014, at
a warehouse to which USX directed him to pick up a load. Considering the positions of
the parties, the applicable law, and all evidence offered and admitted during the
Expedited Hearing, the Court concludes Mr. Callahan is not entitled to the requested
benefits.

                                       ANALYSIS

                                          Issues

 The parties presented the following issues for determination at the Expedited Hearing:

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      Whether Mr. Ali's failure to file a notarized statement contemporaneously with his
REH requires dismissal of the REH; and

       Whether Mr. Ali sustained a mental injury that arose primarily out of and in the
course and scope ofemployment.


The Mediation Specialist marked numerous issues on the Dispute Certification Notice
(DCN) filed in this claim. The Court decided only those issues the parties presented for
determination at the Expedited Hearing.

                                   Evidence Submitted

      The Court admitted into evidence the exhibits identified below:

          1.   Records of St. Joseph's Medical Center;
          2.   Records of San Joaquin General Hospital;
          3.   September 4, 2014 e-mail from Mr. Ali to USX;
          4.   September 3, 2014 e-mail from Pennie Norris to Mr. Ali; and
          5.   April 27, 2015 fax transmittal sheet from Mr. Ali to the Clerk of the Court
               of Workers' Compensation Claims (for identification only).

      The Court designated the following as the technical record:

         •     Petition for Benefit Determination (PBD), filed September 23, 2014;
         •     DCN, filed November 5, 20 14; and
         •     REH, filed April27, 2015.

       The Court did not consider documents attached to the above filings unless
admitted into evidence during the Expedited Hearing. The Court considered factual
statements in the above filings or any attachments thereto as allegations unless
established by the evidence.

      The following persons testified at the telephonic Expedited Hearing:

         •     Mr. Ali;
         •     Damon Bell; and
         •     Jonathan Vanderlinden.

                                    History of Claim

      On or before July 2, 2014, Mr. Ali worked as an over-the-road truck driver for

                                             2
USX. (Ex. 3.) On July 2, 20 14, he drove to a warehouse owned by Baigi Brothers to pick
up a load. (Ex. 3.) Ali claims that another truck driver at the warehouse verbally accosted
him, including referring to him by a racial slur and threatening to kill him, because he
thought Mr. Ali almost backed into his truck. (Ex. 3.) Mr. Ali did not claim physical
injury, but alleged that "as I walked past him to consult with the [warehouse] staff ... ,
my attacker started to use his body to bully and push me around." (Ex. 3.)

       Mr. Ali alleged he reported the altercation to his dispatcher while it was ongoing
and "broke down and cried in front of the staff [at Baigi Brothers]" during the call. (Ex.
3.) Mr. Ali claims that USX's dispatcher told him to return to the cab of his truck to
await the loading of his trailer. (Ex. 3.) Mr. Ali eventually received his load and
delivered it on time to a location in Stockton, California. (Ex. 3.)

        Mr. Ali claimed he became anxious and nervous during the trip to Stockton and
asked USX's dispatcher about obtaining medical care. (Ex. 3.) He testified that the
dispatcher told him he could go to the doctor after he delivered his load. On July 8, 2014,
Mr. Ali sought treatment at San Joaquin General Hospital for insomnia and anxiety. (Ex.
2 at 6-8.) He later sought additional emergency treatment for the same symptoms. (Exs.
1, 2, 3.) At some point between July 2 and July 8, 2014, USX determined Mr. Ali could
not drive and retrieved its truck. (Ex. 3.)

       Mr. Ali stayed in a motel in Stockton for several days until he ran out of money.
(Ex. 3.) Mr. Ali claimed that he attempted to call USX several times about his situation,
but no one called him back. He claimed he lived in a state of homelessness until
approximately August 21, 2014, when a stranger paid for a bus ticket so he could travel
to Beaumont, Texas (Ex. 3), where his family and a girlfriend lived.

       Mr. Ali stayed with a brother in Beaumont until the brother "put him out."
Another brother in Beaumont, Damon Bell, testified he could not take Mr. Ali into his
home "because I have young teenage daughters." At some point, Mr. Ali traveled back to
Stockton. During the hearing, Mr. Ali admitted that his ex-wife and daughter reside in
Stockton.

       Around the first of September, 2014, Mr. Ali sought help from the Bureau (then
Division) of Workers' Compensation (Ex. 3). On September 3, 2014, a representative of
USX contacted Mr. Ali with instructions on how to proceed with his claim. (Ex. 4.)
USX' s carrier denied the compensability of the claim.

                                 Mr. Ali's Contentions

      Mr. Ali asserts he suffered a serious mental injury because of an altercation that
occurred while he was picking up a load for USX. He contends that USX's failure to
provide treatment for his injury severely worsened its impact, resulting in his extended

                                            3
period of disability.

       Mr. Ali claims his only "shelter" at the time of the alleged injury was USX's
truck. He contends USX's retrieval of the truck stranded him in Stockton, California and
eventually rendered him homeless.

                                   USX's Contentions

       USX claims Mr. Ali failed to establish by expert medical opinion that he sustained
a work-related mental injury. Furthermore, USX contends that non-work-related
stressors such as relationship problems account for any mental condition Mr. Ali may
have.

        USX claims Mr. Ali asked that it base him in Stockton so his work trips would end
in proximity to his fiancee's residence. USX argues it retrieved its truck in conformity
with its known company policy because Mr. Ali claimed he was mentally unable to drive.

                        Findings of Fact and Conclusions of Law

                                  Standard Applied

        The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially, and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (20 14). An employee need not prove every
element of his or her claim by a preponderance of the evidence in order to obtain relief at
an expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063,
2015 TN Wrk. Camp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Camp. App. Bd.
Mar. 27, 20 15). At an expedited hearing, an employee has the burden to come forward
with sufficient evidence from which the trial court can determine that the employee is
likely to prevail at a hearing on the merits. ld.

                                        Factual Findings

       Upon consideration of the testimony in open court, the exhibits introduced by the
parties, the argument of counsel for the parties, and the record in this claim, the Court
makes the following factual findings in the Expedited Hearing conducted July 2, 20 15:

          •   On and before July 2, 2014, Mr. Ali worked as an over-the-road truck
              driver for USX;
          •   On or about July 2, 2014, Mr. Ali was verbally accosted by a another driver
              while picking up a load at a warehouse;
          •   Mr. Ali was not physically injured during the altercation that occurred on or
                                            4
              about July 2, 2014;
          •   Mr. Ali telephoned his dispatcher at USX to report the incident at the
              warehouse and later asked for authorization to seek medical care;
          •   Mr. Ali delivered his load to Stockton, California, where USX retrieved its
              truck after Mr. Ali reported he was unable to drive;
          •   Mr. Ali received treatment for insomnia and anxiety following the July 2,
              20 14 on-the-job incident; and
          •   Mr. Ali has not worked anywhere since July 2014.

                               Preliminary Procedural Issue

       At the beginning of the Expedited Hearing, USX orally moved to dismiss Mr.
Ali's REH because the statement filed with it was not notarized. USX argued Mr. Ali's
unsworn statement did not satisfy the requirement of Tenn. Comp. R. & Regs. 0800-02-
21-.14(l)(a) that "[a]ll motions for expedited hearing must be accompanied by affidavits
and any other information demonstrating that the employee is entitled to temporary
disability or medical benefits." USX thus asserted that the Court was required to dismiss
Mr. Ali's Request for Expedited Hearing under the authority of Hadzic v. Averitt Express,
No. 2014-02-0064, 2015 TN Wrk. Comp. App. Bd. LEXIS 14, *6 (Tenn. Work. App. Bd.
May 18, 2015).

      The Court notes USX had a copy of Mr. Ali's un-notarized statement for
approximately three and one-half months before the Expedited Hearing. The Court also
notes USX moved for and received a continuance of an earlier-scheduled Expedited
Hearing because of the illness of one of its attorneys. In view of the above facts, the
Court finds the fact USX did not raise the adequacy of Mr. Ali's statement until the
Expedited Hearing is inherently unfair.

        The facts here are factually distinguishable from those in Hadzic. Because Mr. Ali
filed a statement with his REH, he, unlike the employee in Hadzic, gave USX notice of
the basic facts on which he based his claim. Therefore, the issue is whether Mr. Ali's un-
notarized statement satisfies the "affidavit" requirement ofRule 0800-02-.21-.14(1)(A).

       Mr. Ali contended the statement he filed with Request for Expedited Hearing was
a truthful statement of "what happened" in his claim. In response to a question from the
Court, Mr. Ali swore that the facts set forth in his written statement were truthful and
accurate, both at the time he filed the statement and on the date of the Expedited Hearing.

       Rule 5.02 of the Practice and Procedures of the Court of Workers' Compensation
Claims provides, "[a]ffidavits that do not meet the requirements of a sworn statement
shall not be introduced as evidence and will not be considered by the judge." The
Supreme Court, however, has held that the courts shall measure the papers prepared by
self-represented litigants, who are untrained in the law, by less stringent standards than
                                             5
those applied to papers prepared by lawyers. C & W Asset Acquisition, LLC v. Oggs, 230
S.W.3d 671, 678 (Tenn. 2007); Young v. Barrow, 130 S.W.3d 59, 62-3 (Tenn. 2004).

        While not notarized, the written statement file by Mr. Ali gave USX notice of the
basic factual foundation of the claim against it. Therefore, the Court finds that Mr. Ali's
failure to have the statement he filed notarized is not a fatal defect to the statement's
compliance with the "affidavit" requirement of Rule 0800-02-21-.14(1)(a). As such, the
Court overruled USX' s motion to dismiss.

                               Application ofLaw to Facts

       While Mr. Ali claimed the driver who allegedly accosted him physically touched
him, he did not claim he sustained physical injury during the altercation. The medical
records Mr. Ali introduced at the Expedited Hearing establish he did not report a physical
injury when he presented for emergency treatment of his injury (Exs. 1, 2). In view of
the above, Mr. Ali's claimed injury is a purely mental injury.

        Workers' Compensation Law does not provide benefits for all purely mental
injuries that occur while an employee is working. Tennessee Code Annotated section 50-
6-1 02(16) (20 14) defmes a compensable purely mental injury as "a loss of mental
faculties or a mental or behavioral disorder, arising primarily out of ... an identifiable
work related 'event resulting in a sudden or unusual stimulus, and shall not include a
psychological or psychiatric response due to the loss of employment or employment
opportunities." The Supreme Court held in Goodloe v. State, 36 S.W.3d 62, 65 (Tenn.
2001 ), that a purely mental injury is not compensable unless caused by "an identifiable
stressful work-related event producing a sudden mental stimulus such as fright, shock, or
excessive, unexpected anxiety.

        The Court finds an altercation occurred on July 2, 2014, between Mr. Ali and
another driver waiting to pick up a load at a warehouse. In considering whether the
altercation produced such a "fright, shock, or excessive, unexpected anxiety," !d. at 62,
that Mr. Ali is entitled to workers' compensation benefits, the Court notes Mr. Ali did not
claim the driver who accosted him was armed or realistically able to place him in
physical danger. The Court also notes the staff at the warehouse was present during the
altercation; Mr. Ali was able to contact his dispatcher while the altercation was ongoing;
he was able to return to the cab of his truck to await receipt of his load; he was able to
drive away from the warehouse without incident; and he delivered the load on time at its
specified designation.

A review of the appellate opinions affirming awards in purely mental-injury cases reveals
fact patterns involving levels of fright, shock, or excessive unexpected anxiety beyond
that experienced by Mr. Ali: Saylor v. Lakeway Trucking, Inc., 181 S.W.3d 314 (Tenn.
2005) (where a truck driver was exposed to a chemical labeled "Radioactive"); Craven v.

                                             6
Corr. Corp. of Am., 2006 Tenn. LEXIS 972 (Tenn. Workers' Comp. Panel Oct. 26, 2006)
(where a prison guard observed a co-worker, who eventually died, bleeding profusely
from a stab wound); Lifepoint Hosp., Inc. v. Morgan, 2005 Tenn. LEXIS 377 (Tenn.
Workers' Comp. Panel Apr. 28, 2005) (where a surgical assistant observed a patient fall
from a gurney during surgery, suffering a release of cerebrospinal fluid from the skull);
Pressley v. State, 2004 Tenn. LEXIS 27 (Tenn. Workers' Comp. Panel Sept. 19, 2003)
(where a state trooper observed three fatal vehicular collisions, one involving a
decapitation and another involving a body with an elongated crushed head buried in
mud).

       In McCall v. Nat'/ Health Care Corp., 100 S.W.3d 209 (Tenn. 2003), the Supreme
Court affirmed an award of benefits to an employee who suffered a mental injury after
her male supervisor grabbed her upper arms, shook her, yelled at her with his face six
inches from her face, and pushed her out of the way when he exited the scene of the
confrontation. The Court finds that the altercation described by Mr. Ali does not rise to
the level of the facts in McCall and, as such, the decision therein does not mandate an
award of benefits for Mr. Ali.

       The Court additionally finds that Mr. Ali did not establish his claim by expert
medical opinion. The medical records introduced into evidence scarcely address the
causation of the insomnia and anxiety for which Mr. Ali sought treatment. However, the
Physician's Assistant who saw Mr. Ali at St. Joseph's Medical Center on August 7, 2014,
wrote, "[i]nsomnia [is] likely secondary to patients [sic] current stressors, including work
and being away from family for a long period of time." (Ex. 1, at 3.)

        Tennessee Code Annotated section 50-6-102(13)(C) (2014) requires the injured
worker to establish the causation of his or her work injury by expert medical opinion.
Where more than a single causative factor is potentially responsible for an alleged work
injury, section 50-6-102(13)(C) requires that the injured employee show ''to a reasonable
degree of medical certainty that [the alleged injury] contributed more than fifty percent
(50%) in causing the ... disablement ... considering all causes." On the basis of the
above-described statutory standard, the Court finds Mr. Ali did not establish by expert
medical opinion he is likely to prevail at a hearing on the merits on the issue of whether
his mental injury is work-related.

       IT IS, THEREFORE, ORDERED that:

          1. Mr. Ali has failed, at the present time, to come forward with sufficient
             evidence from which the Court can determine he is likely to prevail at a
             hearing on the merits on the issue of the compensability of his claim; and

          2. This matter is set for Initial Hearing at 9:00 a.m., Eastern Time, on
             November 18,2015

                                             7
       ENTERED this the 13th day of August, 2015.



                                  Judf!:o~
                                  Court of Workers' Compensation Claims

Initial Hearing:

      An Initial Hearing has been set with Judge Thomas Wyatt, Court of Workers'
Compensation Claims, on November 18, 2015, at 9:00 p.m. Eastern Time. You must
ca11615-741-3061 or toll free at 855-747-1721 to participate in the Initial Hearing.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation.


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 business days of the
      date the Workers' Compensation Judge entered the Expedited Hearing Order.

   3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

   4. The appealing party is responsible for payment of a filing fee in the amonnt of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or
      other delivery service. In the alternative, the appealing party may file an Affidavit
      of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
      fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
      of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
      will consider the Affidavit of Indigency and issue an Order granting or denying
      the request for a waiver of the filing fee as soon thereafter as is
      practicable. Failure to timely pay the filing fee or file the Affidavit of

                                            8
       Indigency in accordance with this section shall result in dismissal of the
       appeal.

   5. The parties, having the responsibility of ensuring a complete record on appeal,
      may request, from the Court Clerk, the audio recording of the hearing for the
      purpose of having a transcript prepared by a licensed court reporter and filing it
      with the Court Clerk within ten calendar days of the filing of the Expedited
      Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
      the evidence within ten calendar days of the filing of the Expedited Hearing
      Notice of Appeal. The statement of the evidence must convey a complete and
      accurate account of what transpired in the Court of Workers' Compensation
      Claims and must be approved by the workers' compensation judge before the
      record is submitted to the Clerk of the Appeals Board.

   6. If the appellant elects to file a position statement in support of the interlocutory
      appeal, the appealing party shall file such position statement with the Court Clerk
      within three business days of the filing of the Expedited Hearing Notice of Appeal,
      specifying the issues presented for review and including any argument in support
      thereof. If the appellee elects to file a response in opposition to the interlocutory
      appeal, appellee shall do so within three business days of the filing of the
      appellant's position statement.



                            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 13th day
of August, 2015.


Name                      Certified    Via        Via         Service sent to :
                           Mail        Fax       Email
Noble Ali, self-                                  X           bellbein@yahoo.com
represented
Charles Gilbreath,                                X           cgilbreath@noogalaw.com
Attorney



                                                         '1    )).A      Wlr------- '
                                         P&      r , Clerk of Court
                                         Court of V()rkers' Compensation Claims
                                         WC.CourtClerk@tn.gov
                                             9
