1 TENNESSEE BUREAU OF W ORKERS’ COMPENSATION WORKERS’ COMPENSAT ION APPEALS BOARD

Kevin Judy ) Docket No. 2018-01-0756 ) v. ) State File No. 30496-2017 ) Covenant Transport, Inc., et al. ) ) ) Appeal from the Court of Workers’ ) Compensation Claims ) Audrey A. Headrick, Judge )

Affirmed and Certified as Final

The employee, a truck driver, a lleged suffering work-related inj uries to his wrists while working for the employer, a trucking company. The employee admitt ed giving notice of his alleged November 2016 work injuries in April 2017 and, furthe r, admitted attending an unauthorized medical evaluati on for his wrists in February 2 017. His petition for benefits was filed in October 2018, which the employer claimed was more than one year after its last voluntary payment of benefits. The trial court granted the employer’s motion for summary judgment and dismissed the case as untimely. The em ployee has appealed. We affirm the trial court’s decision and certify as final its o rder dismissing the case.

Presiding Judge Marshall L. Dav idson, III, delivered the opinionof the Appeals Board in which Judge David F. Hensley joined. Judge Timothy W. Conner did no t participate.

Kevin Judy, Orlando, Florida, employee-appellant, pro se

Gary Napolitan, Chattanooga, Tennessee, for the employer-appellee , Covenant Transport, Inc.

Factual and Procedural Background

Kevin Judy (“Employee”), a forty- nine-year-old resident of Orlando, Florida, worked for Covenant Transport, Inc. (“Employer”), as a truck dr iver. On or about November 25, 2016, his last day of employment with Employer, Em ployee allegedly suffered pain in both wrists while driving. He did not report his purported injuries to Employer until nearly five mont hs later on April 19, 2017. In the interim, Employee was 

### FILED Nov 15, 2019 01:30 PM(CT)
TENNESSEE WORKERS' COMPENSATION APPEALS BOARD2 evaluated by his primary care pr ovider in February 2017, at whic h time he complained of pain in both wrists that he re lated to his work activities.

Employer asserted it never paid f or or authorized any medical treatment related to Employee’s alleged wrist injuri es, but did admit it paid two pre scription bills inadvertently, the last payment f or which was issued on September 1, 2017. Employee filed his petition for benefits mor e than one year later on Oct ober 23, 2018.

Thereafter, Employer filed a mo tion for summary j udgment, asserting that Employee failed to provide tim ely notice of his claim and faile d to file his petition within the applicable limitations period . In support of its motion, E mployer provided affidavits from representatives of both Employer and Employer’s workers’ c ompensation administrator, each of whom denied receiving notice of Employee’ s claim prior to April 2017 and further denied paying any benefits after September 1, 2017.

Employee filed a response admitting that he informed his primarycare provider in February 2017 that he believed hi s wrist pain was related to hi s work. He also admitted reporting the claim to Employer on April 19, 2017. With respec t to Employer’s assertion that it last paid a medical bill on September 1, 2017, Employee argued his medical providers had received payment for services related to his alle ged work injury as late as November 20, 2017, from a company called Unified Health Services . According to Employee, his petition for benef its was filed within one year o f the date of the last payment for medical services and wa s thus timely. In response, Em ployer denied that it had any relationship with a compa ny called Unified Health Servi ces.
The trial court granted Employer’s motion for summary judgment and dismissed the case. The court concluded Em ployer had successfully negate d an essential element of Employee’s claim in showing that the last voluntary payment of benefits occurred on September 1, 2017, more than one year prior to the filing of Em ployee’s petition for benefits. The court further conc luded that Employee had not co me forward with sufficient evidence to create an i ssue of material fact regardin g the timeliness of his petition because there was no evidence that Unified Health Serv ices acted as an agent for Employer in issuing payments to Employee’s medical providers. Employee has appealed.

Standard of Review

A motion for summary judgment sh ould be granted when “the plead ings, depositions, answers to interrogatories, and admissions on file , together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a ju dgment as a matter of law.” Te nn. R. Civ. P. 56.04. The burden is on the party pursuing summary judgment to demonstrate b oth that no genuine issue of material fact exists and that the moving party is entitle d to a judgment as a matter3 of law. Martin v. Norfolk S. Ry. Co. , 271 S.W.3d 76, 83 (Tenn. 2008). If the moving party makes a properly supported motion, the burden of producti on then shifts to the nonmoving party to demonstrate the existence of a genuine issue of material fact. Rye v. Women’s Care Ctr. of Memphis, PLLC , 477 S.W.3d 235, 265 (Tenn. 2015).

A trial court’s ruling on a motion for summary judgment is revie wed de novo with no presumption of correctness. Wallis v. Brainerd Baptist Church , 509 S.W.3d 886, 895 (Tenn. 2016). We are also mindful of our obligation to construe the workers’ compensation statutes “fairly, impartially, and in accordance w ith 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 (2019).

Analysis

Tennessee’s Workers’ Compensation Law sets out the limitations period in cases where an employer has voluntarilyprovided workers’ compensatio n benefits as follows:

In instances when the employer has voluntarily paid workers’ compensation benefits, within one (1) year following the accide nt resulting in injury, the right to compensation is forever barred, unless apetition for benefit determination is filed with the bureau on a form prescribed by the administrator within one (1) year from the latter of the date o f the last authorized treatment or the tim e the employer ceased to make pa yments of compensation to or on behalf of the employee.

Tenn. Code Ann. § 50-6-203(b)(2) (2019). In the present case, it is undisputed that Employee’s alleged injury occurred on or about November 25, 201 6, and that the petition for benefits was filed on October 23, 2018. Consequently, unless Employer made a voluntary payment of benefits within one year preceding the fil ing of the petition on October 23, 2018, the petition is untimely and must be dismissed.

Employer submitted affidavits from representatives of Employer and its workers’ compensation carrier stating that n o payment was made on Employe e’s claim after September 1, 2017. Thus, Employer properly supported its motio n for summary judgment by coming forward wit h evidence that E mployee’s petiti on was untimely. Pursuant to Rule 56.06 of the Tennessee Rules of Civil Procedure , the burden of production shifted to Employee to show there is a genuine issue of material fact as to the timeliness of his petition. Empl oyee submitted what purports t o be a statement from his medical provider documenting recei pt of payments for medical services from April 20, 2017 through November 20, 2017. The statement further indicates that a payment was received from Unified Health Services as late as April 13, 2018 . Employee’s submission falls short, however, of establishing any relationship between the purported payor, Unified Health Services, and Empl oyer or its workers’ compensat ion administrator.4 Employee submitted no evidence tha t Unified Health Services acte d as an agent for Employer or its workers’ compensation administrator. In short, t here is no proof that Employer or its workers’ compensation administrator issued a vo luntary payment of benefits on Employee’s clai m after September 1, 2017.

Like the trial court, we conclude Employee has not come forward with sufficient evidence to create a genuine issue of material fact regarding th e timeliness of his petition. The evidence in the record supports the trial court’s conclusio n that Employer last issued a voluntary payment of benefits on September 1, 2017, and that Employee’s petition was not filed until more than one year later. Accordingly, pursuan t to Tennessee Code Annotated section 50-6-203(b)(2 ), Employee’s petition was untim ely. 1

Conclusion

For the foregoing reasons, the trial court’s order is affirmed and certified as final. Costs on appeal are taxed to Employee.

1 As a result of our determination on the timeliness issue, all o ther issues raised by Employee in his brief and notice of appeal are pretermitted.TENNESSEE BUREAU OF WORKERS’ COMPENSATION WORKERS’ COMPENSAT ION APPEALS BOARD

Kevin Judy ) Docket No. 2018-01-0756 )

v. ) State File No. 30496-2017 ) Covenant Transport, Inc., et al. ) ) ) Appeal from the Court of Workers’ ) Compensation Claims ) Audrey A. Headrick, Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Bo ard’s decision in the referenced case was sent to the following recipients by the following metho ds of service on this the 15th day of November, 2019.

Name Certified Mail First Class Mail Via Fax Via Email Sent to:

Kevin Judy X k evinsju dy@gmail.com Gary Napolitan Lisa Sizemore X gary.napolitan@leitnerfirm.com lisa.sizemore@leitnerfirm.com Audrey A. Headrick, 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

Jeanette Baird Deputy Clerk, Workers’ Com pensation Appeals Board 220 French Landing Dr., Ste. 1-B Nashville, TN 37243 Telephone: 615-253-0064 Electronic Mail: WCAppeals.Clerk@tn.gov J e anette Bai r d