INTHE COURT OFWORKERS' COMPENSATIONCLAIMS AT CHATTANOOGA Yolanda Howard, Employee, ) DocketNo.: 2015-01-0005 ) 

### v. Unum, And Employer, ) StateFileNo.: 84357-2014 ) ) DateofInjury: September24, 2014 ) TravelersIndemnityCo., ) TP A/Insurance Carrier. ) Judge: ThomasWyatt )

ORDEROFDISMISSAL

THIS CAUSE came on before the undersigned Workers' Compensation Judge on August 21, 2015, upon the Motion to Dismiss filed July 13, 2015, by Unum and its carrier, Travelers Indemnity Co., pursuant to Tennessee Compilation Rules & Regulations 0800-02-.14(3) (2014). Considering the positions of the parties, the applicable law, and the record pertinent to this motion, the Court concludes Unum is entitledto a dismissal ofMs. Howard's claimwithoutprejudice to its refiling. ANALYSIS Issue Whether Unum is entitledto a dismissal of Ms. Howard's claim. TechnicalRecord The Court designates the following as the technical record pertinent to Unum's Motionto Dismiss:

• Petition for Benefit Determination (PBD), with attachments, filed January 14, 2015; • Dispute CertificationNotice (DCN), filed February 9, 2015; I• Request for Expedited Hearing (REH), filed February 9, 2015; • Exhibits introduced attheExpeditedHearing onMarch 6, 2015; • ExpeditedHearing Order, filed March 12, 2015; • Expedited Hearing Notice ofAppeal, filed March 18, 2015; • Appeals BoardDecision, filed April 8, 2015; and • Unum'sMotionto Dismiss and attachments, filed July 10, 2015. The Court did not consider attachments to the above filings unless admitted into evidence at the Expedited Hearing. The Court considered factual statements in the above filings or any attachments to them as allegations unless established by the evidence admitted at the ExpeditedHearing. History ofClaim Ms. Howard filed a PBD on February 9, 2015, seeking medical and temporary disability benefits for carpal tunnel syndrome allegedly caused by repetitive work she performed in the course and scope ofher employment by Unum. Ms. Howard requested an Expedited Hearing, which the Court conducted March 6, 2015. See Expedited Hearing Order. On March 12, 2015, the Court issued an Expedited Hearing Order denying the requested benefits because the only expert medical opinion on causation introduced atthe ExpeditedHearingwas a causation questionnaire on whichDr. Marshall Jemison markedthe "No_NotPrimarily related" option. Ms. Howard filed a Notice of Appeal to the Workers' Compensation Appeals Board on March 18, 2015. The Appeals Board affirmed the denial ofbenefits by order issued April 8, 2015. Unum filed its Motion to Dismiss on July 10, 2015. Ms. Howard did not file a writtenresponseto Unum's motion. Ms. Howard's Contentions Ms. Howard admitted she did nothave an expert medical opinionthat contradicted Dr. Jemison's opinion that her carpal tunnel syndrome did not primarily arise out ofand in the course and scope of her employment at Unum. Ms. Howard stated she made extensive, butunsuccessful, efforts to obtain legal representation in herclaim. Unum's Contentions Unum asserts the Court's Expedited Hearing Order informed Ms. Howard five months ago her claim would fail ifshe did not obtain expert medical opinion rebutting Dr. Jemison's opinion her carpal tunnel syndrome is not work-related. Nonetheless, she has not done so, thus indicating she either cannot obtain an opinion supporting her position or is unwilling to timely prosecute her claim. Unum contends this is the exact

2type ofclaim that Tennessee Compilation Rules & Regulations 0800-02-21-.14(3) (Rule .14(3)) is designed to dismiss. Discussion Rule .14(3) provides: If, as aresult ofthe expeditedhearing, the claim is denied onthe grounds of compensability,

. . . [and] the denial on the grounds ofcompensability is affirmed by the appeals board . . . , the employer may file a motion to dismiss with the assigned workers' compensation judge.

. . . [T]he employee shall have thirty (30) calendar days to file a written response. Thereafter, the motion shall be set for a hearing and thejudge shall issue an appropriate order. Tenn. Comp. R. & Regs. 0800-02-21-.14(3). The 2013 reforms to the Workers' Compensation Law imposed new evidentiary standards for proving the work-relatedness of an injury. Tennessee Code Annotated section 50-6-102(13)(A) (2014) provides, "[a]n injury is 'accidental' only ifthe injury is caused by a specific incident

... arising primarily out ofand in the course and scope of employment." Section 50-6-102(13)(B) provides, "[a ]n injury 'arises primarily out of and in the course and scope of employment' only if it has been shown by a preponderance ofthe evidence that the employment contributed more than fifty percent (50%) in causing the injury, considering all causes." Section 50-6-102(13)(C) requires thatthe causation of an allegedworkinjury be "shown to a reasonable degree of medical certainty. " (Emphasis added.) The Expedited Hearing Order provided Ms. Howard specific notice her claim failed because the only medical opinion admitted into evidence was Dr. Jemison's opinion her carpal tunnel syndrome was not primarily related to her work at Unum. See Expedited Hearing Order at *4, holding, "[i]n view ofDr. Jemison's response, and there being no other causation opinion admitted into evidence, the Court finds that Ms. Howard did not establish by expert medical opinion that her bilateral carpal tunnel syndrome aroseprimarily outofand in the course and scope ofemployment." (Emphasis added.) Additionally, Unum's Motion to Dismiss clearly indicated it sought to dismiss this claim on the ground Ms. Howard had not obtained expert medical opinion rebutting Dr. Jemison's unfavorable opinion. On the basis of the above, the Court finds that, despite being self-represented, Ms. Howard was well-aware of the nature of Unum's motion and that she needed to produce a favorable causation opinion to rebut Dr. Jemison's opinionto avoid dismissal ofher claim. When an employer successfully defends an injuredworker's claim at an Expedited 3Hearing, Rule .14(3) provides a procedural mechanism by which the employer can force the injured worker to address the evidentiary inadequacies that resulted in the adverse Expedited Hearing decision. If the injured worker does not address the subject evidentiary inadequacies, the employer is entitledto dismissal ofthe claim. Here, Ms. Howard did not introduce expert medical opinion rebutting Dr. Jemison's unsupportive causation opinion, nor did she indicate shehadthepresent ability and intent to do so. Therefore, the Court fmds Unum is entitled to dismissal ofMs. Howard's claim. Tenn. Comp. R. & Regs. 0800-02-21-.14(3). Rule .14(3) does not mandate whether a dismissal thereunder is with or without prejudice. In recognition ofMs. Howard's unsuccessful efforts to obtain representation in her claim, the Court dismisses herclaimwithoutprejudice. ITIS, THEREFORE, ORDEREDas follows: 1. The Court dismisses Ms. Howard's claim for benefits under the Workers' CompensationLawwithoutprejudicetotherefiling ofthe same. 2. The Court taxes the $150 filing fee to Unum and/or its carrier pursuant to Tennessee Compilation Rules & Regulations 0800-02-21-.07 (2014). Unum or its carrier shall promptly remit the filing fee to the Clerk ofthe Court ofWorkers' Compensation Claims. 3. Unless an appeal of this order is filed with the Workers' Compensation Appeals Board orthe Tennessee Supreme Court,this ordershallbecomefinal inthirtydays. ENTEREDthis the 27th dayofAugust, 2015.

JudgeThomasWyatt CourtofWorkers' Compensation Claims

Rjghtto Appeal: Tennessee Law allows any party who disagrees with this Compensation (Dismissal) Order to appeal the decision to the Workers' Compensation Appeals Board. To file aNotice ofAppeal, youmust:

41. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal." 2. File the completed form with the Court Clerk within thirty days ofthe date the Compensation (Dismissal) Order was entered by the Workers' Compensation Judge. See Tenn. Comp. R. & Regs. 0800-02-22-.01(l)(b) (2014). 3. Serve a copy oftheRequest forAppealupon the opposingparty

. 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 ofa 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 ofIndigency 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 ofIndigency and issue an Order granting or denying the request for a waiver ofthe 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 ofthe 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 (ifavailable) for the purpose ofhaving a transcript prepared by a licensed court reporter and filing it with the Court Clerk within fifteen calendar days ofthe filing ofthe Request for Appeal. See Tenn. Comp. R. & Regs. 0800-02-22-.01(4) (2014). Alternatively, the parties may file a joint statement ofthe evidence within fifteen calendar days ofthe filing of the Request for Appeal. The statement of the evidence must convey a complete and accurate account ofwhat transpired in the Court ofWorkers' Compensation Claims and must be approved by the workers' compensation judgebeforethe record is submittedtothe Clerk ofthe Appeals Board. 6. Afterthe Workers' Compensation Judge approves the record and the Court Clerk transmits it to the Workers' Compensation Appeals Board, the appeal will be docketed and assigned to an Appeals Board Judge for Review. At that time, a docketing notice shall be sent to the parties. Thereafter, the parties have fifteen calendar days to submit briefs to the Appeals Board for consideration. See Tenn. Comp. R. & Regs. 0800-02-22-.02(3) (2014). 5CERTIFICATE OF SERVICE Ihereby certifythat atrue and correct copy ofthis Dismissal Orderwas sentto the following recipients by the following methods ofservice on this the 27th day ofAugust, 2015.

Name Certified Mail Yolanda Howard, Selfrepresented Gerard Siciliano, Attorney Via Via Service sentto: Fax Email X YHoward127@yahoo.com

X gms@lutheranderson.com

Penny Shrum, ClerkofCourt CourtofWorkers' Compensation Claims WC.CourtCierk@tn.gov

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