1 

TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

WORKERS’ COMPENSATION APPEALS BOARD 

(HEARD APRIL 26, 2018 AT KNOXVILLE) 

Lisa Yeaman ) Docket No. 2015-03-0237 

) 

v. ) State File No. 45169-2015 

) 

Kindred Health Care, et al. )

)

)

Appeal from the Court of Workers’ ) 

Compensation Claims ) 

Lisa A. Lowe, Judge ) 

Affirmed and Remanded - Filed May 24, 2018 

The employer in this interlocutory appeal filed a motion to dismiss the employee’s claim 

for an alleged failure to prosecute. Although acknowledging that the employee’s twoyear delay in pursuing her claim was “not ideal, nor encouraged,” the trial court denied 

the employer’s motion to dismiss, determining that the employee timely filed her claim

and that a mediator’s notice of the purported withdrawal of the employee’s petition did 

not voluntarily dismiss the claim. The employer has appealed, asserting the trial court 

erred by failing to address whether the employee’s claim should be dismissed for her 

failure to prosecute and that allowing the claim to continue violates public policy. We 

affirm the trial court’s denial of the employer’s motion to dismiss and remand the case. 

Judge David F. Hensley delivered the opinion of the Appeals Board in which Judge 

Timothy W. Conner joined. Presiding Judge Marshall L. Davidson, III, filed a dissenting 

opinion. 

W. Troy Hart and Charles E. Pierce, Knoxville, Tennessee, for the employer-appellant, 

Kindred Health Care 

Joshua J. Bond, Knoxville, Tennessee, for the employee-appellee, Lisa Yeaman

Factual and Procedural Background 

Lisa Yeaman (“Employee”) suffered a work-related injury in 2012 while 

employed by Kindred Health Care (“Employer”). The claim was accepted as 

compensable, and Employer provided all appropriate workers’ compensation benefits. 
2 

The parties subsequently settled the claim, and the settlement provided for the 

continuation of Employee’s medical benefits. 

In June 2015, Employee filed a request for reconsideration of the earlier settlement 

pursuant to Tennessee Code Annotated section 50-6-242 (2012) and a petition for benefit 

determination in which she alleged a new March 1, 2015 date of injury for an aggravation 

of a pre-existing condition. Shortly after filing her petition, she notified the Bureau of 

Workers’ Compensation (“Bureau”) that she wanted to withdraw her petition. As a 

result, a mediator with the Bureau issued and filed a “Notice of Withdrawal of Petition 

for Benefit Determination” on June 26, 2015, which noted that the June 12, 2015 petition 

had been filed “in order to toll the statute [of limitations].” The notice additionally stated 

that the issues in the case were not ready for mediation and that Employee “desires to 

withdraw the Petition.” The notice advised that “[i]f additional disputes arise in the 

course of this claim, either party may file an amended Petition for Benefit Determination 

utilizing the same docket number and state file number and mediation will be scheduled.” 

No further action was taken in the case until Employee filed a new petition for benefit 

determination on August 22, 2017, utilizing the same docket number and state file 

number and identifying the same date of injury as the petition she filed in June 2015. 

Employer responded by filing a motion to dismiss for failure to prosecute on 

September 7, 2017.1

 The following day, the trial court issued an order noting that the 

court “does not have jurisdiction to address a dispositive motion until the Mediating 

Specialist issues a [dispute certification notice].” The order referred the case for 

mediation, stating Employer’s motion to dismiss “shall be held in abeyance until the 

Court receives the [dispute certification notice].” On November 7, 2017, the dispute 

certification notice was filed. On November 20, 2017, Employee filed her response to 

Employer’s motion to dismiss, contending she had not nonsuited her claim and asserting 

her claim was “filed timely, and [she] is ready, willing and able to prosecute her 

claim . . . on the merits.” 

On January 9, 2018, the trial court entered an order noting Employer’s arguments 

that Employee’s two-year delay prejudiced its ability to investigate the claim and that 

allowing the case to continue “will result in the Court’s acquiescence of [Employee’s] 

engagement in ‘on again/off again’ litigation.” While recognizing that “a two-year delay 

is not ideal, nor encouraged,” the court denied the motion to dismiss and stated that 

Employee “timely filed her [petition for benefit determination], and its withdrawal does 

not voluntarily dismiss her claim.” Employer has appealed the denial of its motion to 

dismiss for failure to prosecute. 

 

1 Employer’s motion alternatively requested that the court dismiss Employee’s claim on the basis it was 

barred by the statute of limitations. Although Employer’s brief on appeal addressed the statute of 

limitations issue, counsel for Employer conceded the issue in oral argument in light of our opinion in 

Taylor v. American Tire Distributors, No. 2015-06-0361, 2017 TN Wrk. Comp. App. Bd. LEXIS 48 

(Tenn. Workers’ Comp. App. Bd. Aug. 15, 2017). Thus, we need not address the issue here.
3

Standard of Review

A trial court’s disposition of a motion to dismiss for failure to prosecute is 

reviewed under an abuse of discretion standard. Fischer v. Sverdrup Tech., Inc., No.

M2010-01095-WC-R3-WC, 2011 Tenn. LEXIS 574, at *5 (Tenn. Workers’ Comp. Panel 

June 7, 2011). This standard prohibits an appellate court from substituting its judgment 

for that of the trial court. An appellate court will find an abuse of discretion only if the 

trial court “applied incorrect legal standards, reached an illogical conclusion, based its 

decision on a clearly erroneous assessment of the evidence, or employ[ed] reasoning that 

causes an injustice to the complaining party.” Wright ex rel. Wright v. Wright, 337 

S.W.3d 166, 176 (Tenn. 2011). In reviewing a trial court’s exercise of discretion, we 

presume the trial court’s decision is correct and review the evidence in a light most 

favorable to upholding the decision. Lovelace v. Copley, 418 S.W.3d 1, 16-17 (Tenn. 

2013). “[W]e will not substitute our judgment for that of the trial court merely because 

we might have chosen another alternative.” Johnson v. Walmart, No. 2014-06-0069, 

2015 TN Wrk. Comp. App. Bd. LEXIS 18, at *17 (Tenn. Workers’ Comp. App. Bd. July 

2, 2015). That said, discretionary decisions “require a conscientious judgment, consistent 

with the facts, that takes into account the applicable law.” White v. Beeks, 469 S.W.3d 

517, 527 (Tenn. 2015). Moreover, we are obligated to construe the workers’ 

compensation statutes “fairly, impartially, and in accordance with basic principles of 

statutory construction” and in a manner that does not favor either the employee or the 

employer. Tenn. Code Ann. § 50-6-116 (2017).

Analysis

Employer contends the trial court erred in denying its motion to dismiss “without 

addressing the Employee’s failure to prosecute her claim.” Employer additionally asserts 

Employee’s case should be dismissed “as allowing it to go forward would be against 

public policy.”

Initially, we note the trial court did address Employer’s motion to dismiss, stating 

“the Court denies [Employer’s] Motion to Dismiss.” We perceive Employer’s argument 

as asserting the trial court failed to express its reasoning for denying its motion beyond 

the court’s acknowledgment that “a two-year delay is not ideal, nor encouraged.” While 

the trial court could have been more explicit in its reasoning for denying Employer’s 

motion, we find implicit in the trial court’s order its reliance on Employee’s expressed 

intent to prosecute her claim to a decision on the merits. As is well established, 

“dismissals based on procedural grounds like failure to prosecute . . . run counter to the 

judicial system’s general objective of disposing of cases on the merits.” Henry v. Goins, 

104 S.W.3d 475, 481 (Tenn. 2003).

Employer based its motion to dismiss on Rule 41.02(1) of the Tennessee Rules of

Civil Procedure, which provides, in part, that a defendant may move for dismissal of an 
4 

action or of any claim against it “[f]or failure of the plaintiff to prosecute.” In its brief, 

Employer points out that Rule 41.02 is necessary to enable courts to manage their dockets 

and to protect defendants from plaintiffs who are unwilling to prosecute their claims. 

Employer likewise acknowledges that a trial court’s decision under Rule 41.02 is 

reviewed under an “abuse of discretion” standard. Employer states that Employee took 

no action in this case for over two years and suggests Employee received substantial 

medical care during those two years. It argues that, as a result, “Employer has been 

prejudiced as it was not able to investigate the alleged injury or the medical necessity or 

causality of medical treatment when those issues were ripe.” Employer asserts that, as a 

result, “the principal issues in this matter have become stale and the underlying facts are 

now virtually impossible to investigate.” However, we conclude the responsibility for 

any prejudice resulting from the two-year delay can be attributable to either party. 

Tenn. Comp. R. & Regs. 0800-02-21-.02(17) (2016) allows “[a]ny party [to] file a 

petition for benefit determination . . . with the Bureau at any time after a dispute arises in 

a claim for workers’ compensation benefits.” Here, Employee began her claim by filing 

a petition on June 12, 2015. As noted in Employer’s motion to dismiss filed two years 

later, the petition “alleged the Employee aggravated a preexisting compensable injury and 

listed the new date of injury as March 1, 2015.” The mediator’s Notice of Withdrawal of 

Petition for Benefit Determination was filed fourteen days after the initial petition was 

filed. Although we have previously stated that a mediator’s notice of withdrawal has no 

legal effect, this notice identified the parties and indicated it was sent to Employer, its 

attorney, and its insurer. See Taylor, 2017 TN Wrk. Comp. App. Bd. LEXIS 48, at *9 

(“[A] ‘notice of withdrawal’ issued by a mediator has no legal effect.”). The notice did 

not signal a resolution or conclusion of the claim and clearly contemplated the claim 

would continue in due course. 

Following the filing of the mediator’s notice of withdrawal of Employee’s 

petition, neither party filed any documents with the Bureau in connection with 

Employee’s claim until more than two years later, when Employee filed a new petition 

for benefit determination. In that two-year interim, either party could have investigated 

the circumstances of Employee’s claim and could have requested medical or other 

records from the other party. Either party could have filed a new or amended petition for 

benefit determination with the Bureau seeking relevant documents and could have filed a 

discovery motion to obtain documentation or any other permissible discovery. Indeed, 

the notice filed by the mediator in June 2015 advised that “either party may file an 

amended Petition for Benefit Determination.” 

The record on appeal includes no documentation or information suggesting either 

party sought any information from the other subsequent to the mediator’s notice. 

Likewise, the record is silent as to any action taken by Employer to dismiss Employee’s 

claim until Employee filed a new petition on August 22, 2017. Although delays as 

occurred in this case are strongly discouraged, the delay here did not prevent Employer 
5

from investigating Employee’s claim, her alleged injury, or the medical necessity or 

causality of medical treatment at any point in time after the mediator issued the notice of 

withdrawal of Employee’s petition. It was only after the filing of Employee’s second 

petition for benefit determination that Employer sought to dismiss Employee’s claim. 

Accordingly, we find nothing in the record to support an assertion that the trial court

abused its discretion by denying Employer’s motion to dismiss for failure to prosecute. 

Finally, Employer contends that allowing this claim to continue is contrary to 

public policy. It asserts that if the claim is allowed to continue, “there is effectively no 

limit to the amount of time that can pass before a withdrawn [petition for benefit 

determination] is refiled.” While delays as occurred here are strongly discouraged, the 

current process wherein a judge is not assigned to a case until a motion or a dispute 

certification notice is filed leaves it to the parties, in instances such as are presented here,

to initiate litigation activities. In this case, either party could have initiated action 

resulting in the case being assigned to a judge. The Employer eventually did so by filing 

a motion to dismiss, but only after Employee filed the second petition for benefit 

determination. Again, we find nothing in the record to support an assertion that the trial 

court abused its discretion by denying Employer’s motion to dismiss.

Conclusion

For the foregoing reasons, we hold that the trial court did not abuse its discretion 

in denying Employer’s motion to dismiss for failure to prosecute. Accordingly, the trial 

court’s order is affirmed and the case is remanded for any further proceedings that may 

be necessary.
1

 

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

(HEARD APRIL 26, 2018 AT KNOXVILLE)

Lisa Yeaman ) Docket No. 2015-03-0237

)

v. ) State File No. 45169-2015

)

Kindred Health Care, et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Lisa A. Lowe, Judge )

Dissenting Opinion - Filed May 24, 2018

Marshall L. Davidson, III, Presiding Judge, dissenting.

I respectfully dissent.

First, this appeal involves one simple question: why did this case sit idle for two 

years and two months with no activity? Neither the record nor the trial court’s order 

addresses this pivotal question. I would remand the case for an answer. 

Second, in its order denying the employer’s motion to dismiss, the trial court states 

that “the Court holds that Ms. Yeaman timely filed her PBD, and its withdrawal does not 

voluntarily dismiss her claim. Therefore, the Court denies Kindred’s Motion to 

Dismiss.” Thus, while the trial court’s order makes clear the motion was being denied to 

the extent it was based on timeliness grounds, the order does not, other than allude to the 

employer’s argument, address the failure to prosecute aspect of the employer’s motion to 

dismiss. Rather than address or even acknowledge this problem, the majority’s analysis 

focuses on a novel concept, i.e., what the employer should have done to keep the 

employee’s claim moving forward. 

Third, orders lacking an explanation of the grounds upon which the decision is 

based require appellate courts to “perform the equivalent of an archeological dig [to] 

endeavor to reconstruct the probable basis for the [trial] court’s decision.” Church v. 

Perales, 39 S.W.3d 149, 157 (Tenn. Ct. App. 2000). Because the basis for the trial 

court’s decision is unknown so far as the failure to prosecute is concerned – the sole issue 

on appeal – I would remand the case for the trial court to make findings, or to at least 
2

address the question, so as to avoid appellate review being reduced to an exercise driven 

by assumptions and inferences. Here, for example, the majority has merely inferred the 

trial court both considered and accepted that there was a reasonable basis for the lengthy 

delay when, in fact, the record reflects neither. 

 

Fourth, the trial court’s order references the employee’s statement in her brief filed 

in that court that she “is ready, willing, and able to prosecute the claim.” This, too, does 

nothing to explain why the case sat dormant for more than two years. If a dilatory party 

faced with a motion to dismiss need only assert a preference that the case continue in 

order to withstand a motion to dismiss, the bar has been set much too low. Providing safe 

harbor for parties who may not take the litigation process seriously, and who know that 

significant consequences are unlikely if they do not, is inconsistent with the goals of 

administering the workers’ compensation system in a “fair, equitable, expeditious, and 

efficient” manner. Tenn. Code Ann. § 4-3-1409(b)(2)(A) (2017). See also Smith v. The 

Newman Grp., LLC, No. 2015-08-0075, 2015 TN Wrk. Comp. App. Bd. LEXIS 30, at 

*16-17 (Tenn. Workers’ Comp. App. Bd. Sept. 21, 2015) (Davidson, J., dissenting).

 

Fifth and last, the trial court’s order notes that inactivity for two years “is not 

ideal, nor encouraged,” and the majority twice states that delays as occurred in this case 

are “strongly discouraged.” I would give meaning to these words and require a party to 

provide a reasonable explanation or excuse based on notions of equity, justice, excusable 

neglect, misconduct by the adverse party, or some other consideration that would justify a 

twenty-six month period of dormancy. This record reveals no explanation or excuse, 

much less a reasonable one. 

In the end, we are left with no idea why the employee allowed her claim to lay 

dormant for more than two years or why that was deemed acceptable. Unlike my 

colleagues, I would remand the case for an answer.
 

 

 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

 WORKERS’ COMPENSATION APPEALS BOARD

Lisa Yeaman ) Docket No. 2015-03-0237 

) 

v. ) State File No. 45169-2015 

) 

Kindred Health Care, et al. ) 

) 

) 

Appeal from the Court of Workers’ ) 

Compensation Claims ) 

Lisa A. Lowe, 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 24th day of May, 2018. 

Name Certified 

Mail

First Class 

Mail

Via 

Fax

Fax 

Number

Via 

Email

Sent to: 

Josh Bond X jbond@hdclaw.com

W. Troy Hart X wth@mijs.com

Charlie Pierce X cepierce@mijs.com

Lisa A. Lowe, Judge X Via Electronic Mail

Kenneth M. Switzer, 

Chief Judge

X Via Electronic Mail

Penny Shrum, Clerk, 

Court of Workers’ 

Compensation Claims

X Penny.Patterson-Shrum@tn.gov

 

Matthew Salyer

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