Meener, Musshur v. Amazon

FILED
Nov 12, 2024
12:04 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Musshur Meener ) Docket No. 2023-08-3737
)
v. ) State File No. 860283-2023
)
Amazon, et al., and )
Troy Haley as Administrator of the )
Bureau of Workers’ Compensation )
Subsequent Injury & Vocational )
Recovery Fund )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Shaterra R. Marion, Judge )

Affirmed and Remanded

The employee avers the trial court erred in its determination that he failed to give proper
notice of his alleged work injury in this interlocutory appeal. The employee alleged injuries
to his back, neck, and arms due to repetitive lifting of heavy boxes over the course of two
days. The employer denied the claim, arguing that it did not receive notice until over a
month after the date of the alleged injury. Following an expedited hearing, the trial court
issued an order denying the requested benefits, determining the employee failed to show
he was likely to prevail at trial in proving he had provided proper notice of his alleged work
injury. The court further concluded the employee’s testimony lacked credibility. The
employee has appealed. Having carefully reviewed the record, we affirm the trial court’s
order and remand the case.

Judge Meredith B. Weaver delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Pele I. Godkin joined.

Musshur Meener, Memphis, Tennessee, employee-appellant, pro se

W. Troy Hart and Megan A. Jones, Knoxville, Tennessee, for the employer-appellee,
Amazon

Timothy P. Kellum, Nashville, Tennessee, for the Subsequent Injury and Vocational
Recovery Fund

1
Factual and Procedural History

Musshur Meener (“Employee”) was working for Amazon (“Employer”) as a
warehouse associate in April 2023. Employee claims an onset of back pain due to moving
multiple heavy boxes on April 22 and 23, 2023. He went to the onsite clinic, AmCare, on
April 22, 2023, and was given a topical pain cream before returning to work. Employee
then went on his own accord to the emergency department of Baptist Hospital on April 30,
2023, at which time he reported no specific injury but indicated that he was experiencing
back pain and that his job required him to lift heavy boxes. The attending provider, a
physician’s assistant, requested X-rays and a CT scan of Employee’s spine. The X-rays
indicated an L-1 compression fracture, and the CT scan revealed that the edges of the
compression fracture were sclerotic, suggesting a longstanding, degenerative condition.
Specifically, as to the results of the diagnostic testing, the provider noted, “[b]ased on
history and no injuries specifically, likely chronic in nature.” Employee was released
following administration of pain medication and told to follow up with his primary care
physician and an orthopedic specialist.

On May 30, 2023, Employee filed a petition for benefit determination stating his
date of injury was April 22 through 23, 2023 and that he had given notice to human
resources and “Terrance” at AmCare on May 19, 2023. On June 10, 2023, Employee went
back to the same emergency department, where he complained of an injury to his back on
May 22 and May 23 from lifting boxes at work. He was seen by a nurse practitioner, who
requested thoracic X-rays. She diagnosed Employee with a strain and referred him to his
“company orthopedic” doctor. She also completed a “Physician Statement” form with
Employer’s logo on it, indicating Employee should be working at modified duty or as
“directed by company doctor” beginning June 11, 2023.

On June 23, 2023, Employee reported an injury to Employer as occurring on April
22. Employer completed an internal form entitled “Workers’ Compensation Referral
1

Notification” indicating Employee had visited AmCare on April 22 but had requested
treatment for chronic back pain before returning to work. Following the completion of the
incident report, Employer authorized an appointment with Dr. Andrew Sugantheraj with
Nova Medical Center on July 3. Dr. Sugantheraj obtained additional X-rays and diagnosed
Employee with a sprain of the ligaments of the cervical and lumbar spines, as well as strains
of unspecified muscles in both arms. Although the record recommended “evaluation” for
physical therapy, there is no formal referral for physical therapy contained in the record.

Following mediation and the issuance of a dispute certification notice, as well as
several status conferences, Employee filed a request for hearing on March 19, 2024, but
that request was not accompanied by an affidavit or Rule 72 declaration as required by

1
Nothing in the record indicates Employer was aware of the pending Petition for Benefit Determination
prior to June 23, 2023.
2
Bureau rules. Thereafter, the trial court ordered Employee to file a hearing request
specifying the relief he was seeking, along with an affidavit, by June 1. Employee then
filed a “Hearing Request for Settlement Approval” and indicated temporary and permanent
disability and medical benefits were at issue. He also filed an affidavit (which was an email
he printed, signed, and had notarized) listing various complaints against Employer, but
essentially requesting the benefits as outlined in his hearing request. The court then issued
an order setting the expedited hearing for August.

Employee testified at the hearing that, during his work shifts on April 22 and 23,
2023, he moved between two and three thousand heavy boxes, resulting in back pain. He
testified he sought treatment at AmCare and then notified Employer on April 27, 2023 of
his work injury. According to Employee, he provided a letter reporting his injury to an
employee named “Anthony” on that date because his pain was too significant for him to
find the plant manager. Employee asserted that another employee named “Melody”
witnessed this interaction. He further testified that there would have been video footage of
the interaction, but the surveillance camera was not working that day. Finally, he
contended that he was instructed to call a human resources number after reporting the
injury on April 27 and that he did so. He initially testified he made the call on the same
day, then later testified it was after his visit to the emergency department on June 10.
Finally, when questioned about the discrepancy between the date he indicated he gave
notice in his petition for benefits and his testimony that he gave notice in April, he stated
he did not know why he put May 19 as the date he gave notice in his petition.

In response to Employee’s allegations, Employer submitted a Rule 72 declaration
of its human resources manager, Brennan Reeves, in support of its denial of the claim based
on lack of notice. Mr. Reeves stated in his declaration that there was no record of any
engagement between company employees identified as “Anthony” and “Melody” and
Employee on April 27, 2023, although there was a record Employee was present on
Employer’s premises on that date. Mr. Reeves asserted the date of notice was June 23,
2023, when Employee completed and signed an “initial report form.”

The trial court issued an order on August 22, 2024, denying the requested medical
and temporary disability benefits and determining Employee was not likely to prove at trial
that he gave proper notice of his injuries pursuant to Tennessee Code Annotated section
50-6-201(a)(1). Moreover, the court did not find Employee’s testimony to be credible
regarding the alleged notice he reported giving on April 27, 2023. Instead, the court found
he did not provide timely written notice or offer any reasonable excuse for failing to do
so. 2 As such, the court denied benefits, and Employee has appealed.

2
Employee did not argue in the trial court or on appeal that he had a reasonable excuse for failing to give
timely notice. Thus, we need not analyze that issue further.

3
Standard of Review

The standard we apply in reviewing a trial court’s decision presumes the court’s
factual findings are correct unless the preponderance of the evidence is otherwise. See
Tenn. Code Ann. § 50-6-239(c)(7) (2023). When the trial judge has had the opportunity
to observe a witness’s demeanor and to hear in-court testimony, we give considerable
deference to factual findings made by the trial court. Madden v. Holland Grp. of Tenn.,
Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need be
afforded the trial court’s findings based upon documentary evidence.” Goodman v.
Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.
Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of
statutes and regulations are questions of law that are reviewed de novo with no presumption
of correctness afforded the trial court’s conclusions. See Mansell v. Bridgestone Firestone
N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are also mindful of our
obligation to construe the workers’ compensation statutes “fairly, impartially, and in
accordance with basic principles of statutory construction” and in a way that does not favor
either the employee or the employer. Tenn. Code Ann. § 50-6-116 (2023).

Analysis

On his notice of appeal, Employee appears to assert that the trial court erred in
finding he was unlikely to prove that he gave sufficient notice. In his brief, Employee
contends the initial onsite visit to AmCare served as notice to Employer of his injury as
well as the notice he contends he gave an employee named “Anthony” on April 27, 2023. 3
For its part, Employer contends in its brief that the trial court did not err in its determination
that Employee failed to show he was likely to prevail in proving that he gave proper notice.

Tennessee Code Annotated section 50-6-201(a)(1) states:

No compensation shall be payable under this chapter, unless the written
notice is given to the employer within fifteen (15) days after the occurrence
of the accident, unless reasonable excuse for failure to give the notice is made

3
Employee filed several documents entitled “Amends Correction Employee’s Appeals Brief” on September
3, 5, and 9, respectively. He then filed a “Motion to Clarify Brief Corrections” on September 17, 2024, and
a “Motion to Amend Brief” on September 24, 2024. We interpreted the motion as a request to file a reply
brief to Employer’s brief on appeal. We issued an order dated September 30, 2024, advising Employee had
until October 5, 2024 to file a reply brief pursuant to Tenn. Comp. R. and Regs. 0800-02-22-.05(2).
Employee filed a response on October 1, reiterating notice was given on April 22 at the time of the AmCare
visit. Employee filed another, almost identical, response on October 2. Finally, he filed another “Motion
to Clarify Brief Corrections” on October 22, 2204, after the briefing period was complete. As it was almost
identical to the September 22, 2024 motion and was filed after the briefing period had expired, we are not
considering that filing.
4
to the satisfaction of the tribunal to which the claim for compensation may
be presented.

We previously analyzed the notice requirement at length and set out the proper test
when notice is contested. Ernstes v. Printpack, Inc., No. 2020-07-0617, 2023 TN Wrk.
Comp. App. Bd. LEXIS 25, at *34-35 (Tenn. Workers’ Comp. App. Bd June 6, 2023),
aff’d, No. W2023-00863-SC-R3-WC-2024, 2024 Tenn. LEXIS 1, at *5 (Tenn. Workers’
Comp. Panel Jan. 2, 2024). In Ernstes, we stated:

In future cases, therefore, we conclude that trial courts evaluating the issue
of notice should consider the following:

A. Did the employee provide timely written notice of the alleged
work-related injury?

B. If no timely written notice was provided, did the employer have
“actual knowledge” of the alleged work-related accident or injury?

C. If no timely written notice was provided and no actual knowledge
has been proven, did the employee show a “reasonable excuse” for the
failure to give proper notice to the employer? In considering whether the
employee has shown by a preponderance of the evidence a reasonable
excuse, a court can consider, among other things: (1) the employer’s
actual knowledge of the employee’s injury, (2) lack of prejudice to the
employer by an excusal of the notice requirement, and (3) the excuse or
inability of the employee to timely notify the employer.

D. If the court determines that: (1) no timely written notice was
provided; (2) the employer did not have actual knowledge of the alleged
accident or injury; and (3) the employee did not prove a reasonable excuse
for the failure to give timely notice, the claim should be denied and
dismissed.

E. If written notice was provided, but the employer affirmatively
asserts there was a defect or inaccuracy in the notice, the burden of proof
shifts to the employer to prove actual prejudice it suffered as a result of
the defective or inaccurate notice and, if such prejudice is found, the trial
court can fashion a remedy, if appropriate, “only to the extent of the
prejudice.”

Id. (internal citations omitted).

5
In the present case, the trial court utilized the Ernstes test in determining Employee
had not come forward with sufficient evidence at the expedited hearing to prove he gave
proper notice of his alleged work injury within fifteen days of its occurrence. The trial
court relied on the inconsistencies in the petition for benefit determination, Employee’s
testimony regarding when he gave notice of his alleged injury, and its finding that
Employee’s testimony lacked credibility in making this determination. It also relied on
Employer’s Rule 72 declaration disputing Employee’s allegation that he provided written
notice to Employer on April 27, 2023.

The law is clear that “[w]hen the trial court has heard in-court testimony,
considerable deference must be afforded in reviewing the trial court’s findings of
credibility and assessment of the weight to be given that testimony.” Sirkin v. Trans
Carriers, Inc., No. 2015-08-0292, 2016 TN Wrk. Comp. App. Bd. LEXIS 22, at *8-9
(Tenn. Workers’ Comp. App. Bd. May 9, 2016) (quoting Tryon v. Saturn Corp., 254
S.W.3d 321, 327 (Tenn. 2008)). Here, the trial court specifically stated Employee’s
“testimony seemed defensive with no explanation for the inconsistencies.” It did not find
Employee’s testimony regarding notice given to the onsite clinic on April 22, 2023 or his
alleged interaction of April 27, 2023 to be credible and, thus, found Employer did not
receive written notice within fifteen days or have actual knowledge of the injury. In short,
we cannot conclude that the evidence preponderates against the trial court’s decision to
deny benefits based on a lack of sufficient evidence of proper notice at this interlocutory
stage of the case.

Conclusion

For the foregoing reasons, we affirm the trial court’s decision denying medical and
temporary benefits, and we remand the case. Costs on appeal are waived.

6
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Musshur Meener ) Docket No. 2023-08-3737
)
v. ) State File No. 860283-2023
)
Amazon, et al., and )
Troy Haley as Administrator of the )
Bureau of Workers’ Compensation )
Subsequent Injury & Vocational )
Recovery Fund )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Shaterra R. Marion, Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 12th day
of November, 2024.

Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Musshur Meener X musshurfragranceworld@gmail.com
W. Troy Hart X wth@mijs.com
Megan Jones majones@mijs.com
Timothy Kellum X timothy.kellum@tn.gov
Shaterra R. Marion, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims

Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov