           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                            AT MEMPHIS

Shawn Sirkin,                                )   Docket No.: 2015-08-0292
            Employee,                        )
v.                                           )   State File Number: 44984-2015
Trans Carriers, Inc.                         )
            Employer,                        )   Judge Jim Umsted
And                                          )
Great American Insurance,                    )
            Insurance Carrier.               )


     ORDER DENYING EMPLOYEE'S REQUEST FOR EXPEDITED HEARING


        This matter came before the undersigned workers' compensation judge on the
Request for Expedited Hearing (REH) filed by the employee, Shawn Sirkin, pursuant to
Tennessee Code Annotated section 50-6-239 (2014). The present focus of this case is
whether Ms. Sirkin has complied with the procedural requirements that permit the Court
to consider the merits of her REH. The central legal issue is whether Ms. Sirkin has filed
a sufficient supporting affidavit with her REH. For the reasons set forth below, the Court
finds that Ms. Sirkin failed to file a valid supporting affidavit with her REH, and,
accordingly, her REH must be denied.

                                    History of Claim

       Ms. Sirkin is a fifty-five year-old resident of Toledo, Ohio. She allegedly
sustained a shoulder injury on May 20, 2015, while working as a truck driver for Trans-
Carriers, Inc. Trans-Carriers denied the claim on grounds of compensability.

       Ms. Sirkin filed a Petition for Benefit Determination (PBD) seeking temporary
disability benefits and medical benefits. The parties did not resolve the disputed issues
through mediation, and the Mediating Specialist filed a Dispute Certification Notice
(DCN) on September 1, 2015. On September 23, 2015, Ms. Sirkin filed a REH
accompanied by her unsigned and unsworn "affidavit." The REH requested that the
assigned judge issue a ruling based on a review of the file without an evidentiary hearing.


                                             1
                       Findings of Fact and Conclusions of Law

        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 (2014). The employee in a workers'
compensation claim has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass'n, 725 S.W.2d 935, 937 (Tenn. 1987); Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015). 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. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27,
2015). 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. !d.

       Before considering the merits of Ms. Sirkin's REH, it is necessary to determine if
she complied with the procedural requirement of filing a supporting affidavit with her
REH. Trans-Carriers argues that Ms. Sirkin's REH should be denied because she failed
to file a supporting affidavit as required by Tenn. Comp. R. & Regs. 0800-02-21-
.14(l)(a) (2015).

       In support of her REH, Ms. Sirkin filed an unsigned and unsworn form entitled
"affidavit." The controlling regulation, Tenn. Comp. R. & Regs. 0800-02-21-.14(1)(a),
provides as follows:

      (1) After a case is placed on the docket, if there is a dispute over temporary
      disability or medical benefits, either party may request an expediting [sic]
      hearing of the issue of temporary disability or medical benefits by
      indicating its desire for an expedited hearing on the request for hearing
      form or by a [sic] filing a separate motion. The indication of the desire for
      an expedited hearing on the request for hearing form shall serve as the
      motion for expedited hearing.

      (a) All 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.

       Rule 5 of the Court of Workers' Compensation Claims' Practice and Procedures
explains the sufficiency of an affidavit as follows:

      Rule 5. Affidavits

                                            2
       5.01 Submission of Affidavits with Request for Expedited Hearing

       Pursuant to Rule 0800-02-21-.14(1)(a), all motions concerning the
       provision of temporary disability or medical benefits on an expedited basis
       and requests for expedited hearing must be accompanied by affidavits and
       other evidence demonstrating that the moving party is entitled to the
       benefits or relief sought. Declarations made under penalty of perjury
       pursuant to Tennessee Rules of Civil Procedure, Rule 72 are acceptable.
       Affidavits or declarations shall not be admissible at the Compensation
       Hearing.

       5.02 Content

      The affidavit or declaration shall set forth a written, sworn statement of
      facts demonstrating that the moving party is entitled to the benefits or relief
      sought. The affidavit or declaration shall be voluntarily made by an affiant,
      under an oath or affirmation administered by a person authorized to do so
      by law or in compliance with Rule 72 of the Tennessee Rules of Civil
      Procedure. The execution of an affidavit must be witnessed as to the
      authenticity of the affiant's signature by the taker of the oath, who must
      provide a written acknowledgment of the authenticity of the affiant's
      signature. Affidavits that do not meet the requirements of a sworn
      statement or declarations that do not meet the requirements of Rule 72 shall
      not be introduced as evidence and will not be considered by the Judge.

Court of Workers' Compensation Claims Practice and Procedure, §§ 5.01, 5.02 (2015)
(emphasis added). Ms. Sirkin's unsigned and unsworn "affidavit" does not meet the
requirements of an affidavit under the Court's rules or of a Rule 72 declaration. See
Tenn. R. Civ. P. 72.

       The next question is whether Ms. Sirkin can proceed on her REH without filing a
valid supporting affidavit. This issue was considered in Hadzic v. Averitt Express, No.
2014-02-0064, 2015 TN Wrk. Comp. App. Bd. LEXIS 14, at *7 (Tenn. Workers' Comp.
App. Bd. May 18, 20 15), where the Appeals Board ruled that the trial court should have
denied that employee's Request for Expedited Hearing due to his failure to file a
supporting affidavit in compliance with Rule 0800-02-21-.14(1 )(a). The Court explained:

      The answer to this question can be found in the plain language of the
      regulation, which states 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."
      (Emphasis added.) The word "all" means "all and not some, or a part, or a

                                            3
       portion, or a few." State v. Good Times, Ltd, No. E2007-1172-COA-R3-CV,
       2008 Tenn. App. LEXIS 551, at * 11 (Tenn. Ct. App. Sept. 23, 2008). The
       word "must" means "that the requirement is mandatory and not
       discretionary." In re Dow Corning Corp., No. 00-00001, 2009 U.S. Dist.
       LEXIS 27179, at *3 (E.D. Mich. Mar. 31, 2009).

       In short, Rule 0800-02-21-.14(1)(a) cannot be reasonably construed as
       applying only to those situations where the party requesting an expedited
       hearing does not intend to testify at the hearing. Giving the terms "all" and
       "must" their plain and ordinary meaning, as we must, we are compelled to
       conclude that the trial court incorrectly determined the filing of an affidavit
       is unnecessary when the party seeking an expedited hearing testifies at the
       hearing. Because the trial court's decision is inconsistent with the plain
       meaning of the language of the regulation, it must be set aside as lacking
       legal support. See Patterson v. Prime Package & Label Co., No. M2013-
       01527-WC-R3-WC, 2014 Tenn. LEXIS 1037, at *5 (Tenn. Workers'
       Camp. Panel Dec. 22, 2014) ("When a statute's language is clear and
       unambiguous, we will apply its plain meaning and go no further.").


ld. at *9, 12-13.

        For the foregoing reasons, the Court holds that Ms. Sirkin failed to file a valid
supporting affidavit with her REH, and accordingly, her request for hearing must be
denied.

IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Sirkin's Request for Expedited Hearing is denied at this time.

   2. This matter is set for an Initial (Scheduling) Hearing on December 16, 2015 at
      10:00 a.m. Central time.

       ENTERED this the 12th day of October, 2015.



                                4tms(p#/
                                   Court of Workers' Compensation Claims




                                             4
Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Jim U msted, Court of
Workers' Compensation Claims. You must call 615-532-9550 or toll-free at 866-
943-0014 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 amount 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
      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

                                            5
       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 appellant shall file such position statement with the Court Clerk within
      three business days of the expiration of the time to file a transcript or statement of
      the evidence, specifying the issues presented for review and including any
      argument in support thereof. A party opposing the appeal shall file a response, if
      any, with the Court Clerk within three business days of the filing of the appellant's
      position statement. All position statements pertaining to an appeal of an
      interlocutory order 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.

                            CERTIFICATE OF SERVICE

       I hereby certify that a true and corre t copy of the xpedited Hearing Order was
sent to the following recipjents by th e following methods of service on this the 1ih day
of October, 2015.


Name                        Certified Via        Via      Service sent to:
                            Mail      Fax        Email
Shawn Sirkin, Employee         X                         2 West Po ins etta Ave.
                                                         Toledo, Ohio 43612
B. Duane Willis, Esq.,                             X     dwillis@morganakins.com
Employer's Counsel




                                         Penny Shrum, Clerk of Court
                                         Court of Workers' Compensation Claims
                                         WC.CourtCle•·k@tn.gov




                                            6
                                              APPENDIX

Exhibits:

    1. Medical Records
          a. Northwest Ohio Urgent Care
          b. Deborah Duda, NP at BWC-North
          c. Arshad Husain, MD at BWC-North
    2. Copies oftexts/emails submitted by Ms. Sirkin
    3. Form from Ohio Bureau of Workers' Compensation-Physician's Report of Work
       Ability
    4. Form-Notice of Denial
    5. Form-Wage Statement
    6. Driver History Report
    7. Affidavits submitted by Employer
          a. Teresa Talley
          b. Jennifer Mohundro
          c. Kathy Ward
    8. Employer-employee text messages

Technical record:i
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing with unsigned and unsworn "Affidavit"
   4. Employer's Response to Employee's Petition for Benefit Determination


i The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.




                                                     7
