1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT MEMPHIS

JOSHUA BRYANT , ) Docket No. 20 20

- 0 8

- 0 309 Employee, )

v. ) MALCO THEATERS INC. , ) State File No. 97676

- 20 1 7 E mployer , ) A nd ) LIBER TY MUTUAL FIRE INS

. CO., ) Judge Allen Phillips Carrier. )

COMPENSATION ORDER GRANTING SUMMARY JUDGMENT

This case came before the Court on May 1 7 , 202 1

, on Malco ’s Second Motion for Summary Judgment. Malco contended Mr. Bryant filed his Petition for Benefit Determination outside the one

- year statute of limitations

. For the following reasons, the Court grants the motion. Facts

On December 14, 2017

, Mr. Bryant s ustained a n injury

, and Malco provided med ical and t emporary total disability benefits. Mr. Bryant filed a Petition for Benefit Determination and then a Request for Expedited Hearing seeking additional benefits

.
The Court held an Expedited Hearing

, where Malco offered an affidavit of its

w orkers’ compensation claim representative

, Joseph Medvesce k

. In that affidavit, Mr. Medvescek stated in paragraph 9 that he issued the last payment of disability benefits on April 10, 2018

, an d stated in paragraph 10 that he last paid a medical b ill on March 22, 2019. Mr. Bryant offered no contrary evidence

.
After the hearing, t he Court found that Mr. Bryant filed his petition on March 26, 2020, more than one year after the last payment of benefits on March 22, 2019

. Thus

, the Court held that Mr. Bryant likely would not prevail at a hearing on the merits because his claim is barred under the applicable statute of limitations. Specifically, under Tennessee 

### FILED May 27, 2021 09:32 AM(CT)
TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMS2

Code Annotated section 50

- 6

- 203(b)(2) (2020) , an employee must file his pet ition within one year of when the employer last voluntarily paid benefits

. Afterward, Malco filed its first Motion for Summary Judgment on the grounds of statute of limitations. In support, Malco filed a Statement of Undisputed Material Fac ts in which it asserted , as relevant, the following : “ Employer/Carrier issued the final temporary disability payment on April 10, 2018 and paid the last medical bill on March 22, 2019. (See Exhibit D: Affidavit of Joseph Medvescek ¶¶ 9

- 10). ” However, t he a ffidavit of Mr. Medvescek filed with the motion d id not contain paragraphs 9 and 10

.

Because of the missing paragraphs, the pleadings and affidavits on file d id not show when Malco last paid benefits

. Thus, on April 8, 2021, the Court denied Malco’s first M otion for S ummary J udgment

.
Malco filed th is Motion for S ummary Judgment on April 14 . It included the same Statement of U ndisputed F acts and affidavits

, but the affidavit of Mr. Medvescek now contain ed the previously missing paragraphs as to when Malco last paid benefits

. Mr. Bryant did not file a response to the motion.
On May 17, the Court heard argument. Malco reiterated that the last payment of benefits was made on March 22, 20 1 9

, and that the Petition f or Benefit Determination was filed more than one year later on March 26, 2020. Mr. Bryant argued that a physician had related his current complaints to his injury and that the Court should consider that fact as relevant to the statute of limitations.
Analy sis

Summary judgment is appropriate “if the pleadings, 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 judgment as a matter of law.” Tenn. R. Civ. P. 56.04 (2020) . To prevail, Malco must do one of two things: (1) submit affirmative evidence that negates an essential element of Mr. Bryant ’s claim, or (2) demonstrate that Mr. Bryant’s evidence is insufficient to establish entitlement
to further benefits. Tenn. Code Ann. § 20

- 16

- 101; se e also Rye v. Women’s Care Ctr. of Memphis, MPLLC , 477 S.W.3d 235, 264 (Tenn. 2015).

Further, t he Appeals Board has stated the filing requirements of Tennessee Rules of Civil Procedure 56 “are not mere suggestions,” but plain and unambiguous requirements. Thomas v. Zipp Express, 2017 TN Wrk. Comp. App. Bd. LEXIS 22, at *11 n.4 (Mar. 15, 2017). Specifically, as the moving party, Malco must file a statement of undisputed material facts with citations to the record. Mr. Bryant must respond to Malco ’s statement of undisputed facts, stating either his agreement with them or by show ing how they are disputed. Tenn. R. Civ. P. 56.03. (Emphasis add ed)3

Here, t he essential element of Mr. Bryant ’ s claim is whether he timely filed the petition

. B ecause Malco voluntarily pa id benefits, Mr. Bryant was required to file a petition within one year of when Malco ceas e d pay ing benefits. Tenn. Code Ann. § 50

- 6

- 203(b)(2)

. Malco asserted in the statement of undisputed fact s that it last paid benefits on March 22, 2019

, and, unlike in the first motion, that statement is now support e d by the affidavit of Mr. Medvescek

. Mr. Bryant filed nothing in response

. The Court considered his argument at the hearing

, but in the absence of a written response to the statement of undisputed facts, the Court must accept Malco’s statements as true

.
T he refore, the Court finds no genuine issue of material fact as to when Malco last
pa id benefits . Because that date was more than one year before Mr. Bryant fil ed the Petition for Benefit Determination

, Malco is entitled to summary judgment as a matter of la w.
IT IS, THEREFORE, ORDERED AS FOLLOWS:

1. The Court grants Malco’s motion for summary judgment and dismisses Mr. Bryant ’s claim with prejudice to its refiling.

2. Unless appealed, this order shall become final in thirty days.

3. The Court assesses the $150.00 filing fee against Malco , for which execution might issue as necessary. Malco shall pay the filing fee to the Court Clerk within five business days of the order becoming final.

4. Malco shall file Form SD

- 2, Statistical Data fo rm, with the Court Clerk within five business days of this order becoming final.

ENTERED May 27 , 20 21

.

______________________________________ J UDGE A LLEN P HILLIPS Court of W orkers’ Compensation Claims4 C ERTIFICATE OF SERVIC E

I certify that a copy of this Order w as sent as indicated on May 27 , 20 2 1

.

______________________________________ Penny Shrum, Court Clerk Wc.courtcler@tn.gov Name Via Email Service Sent To:

Joshua Bryant, Employee X 9146 Forest Island Dr., N., Collierville, TN 38017 joshuamusic7@yahoo.com Effie B. Cozart, Employer’s Attorney X effie.cozart@libertymutual.com kathleen.langston@libertymutual.comCompensation Hearing Order Right to Appeal :

If you disagree with this Compensation Hearing Order, you may appeal to the Workers’ Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’ Compensation Appeals Board, you must:

1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the Clerk of the Court of Workers’ Compensation Claims within thirty calendar days of the date the compensation hearing order was filed. When filing the Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if represented).

2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar days after filing of the Notice of Appeal. Payments can be made in

- person at any Bureau office or by U.S. mail, hand

- delivery, or other delivery service. In the alternative, you may file an Affidavit of Indigency (form available on the Bureau’s website or any Bureau office) seeking a waiver of the filing fee. You must file the fullycompleted Affidavit of Indigency within ten calen dar days of filing the Notice of Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will result in dismissal of your appeal.

3. You bear the responsibility of ensuring a complete record on appeal. You may request from the cou rt clerk the audio recording of the hearing for a $25.00 fee. A licensed court reporter must prepare a transcript and file it with the court clerk within fifteen calendar days of the filing the Notice of Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both parties within fifteen calendar days of the filing of the Notice of Appeal. The statement of the evidence must convey a complete and accurate account of the hearing. The Workers’ Compensation Judge must approve the statement of the evidence before the record is submitted to the Appeals Board. If the Appeals Board is called upon to review testimony or other proof concerning factual matters, the absence of a transcript or statement of the evidence can be a significant obstacle to meaningful appellate review.

4. After the Workers’ Compensation Judge approves the record and the court clerk transmits it to the Appeals Board, a docketing notice will be sent to the parties. The appealing party has fifteen calendar days aft er the date of that notice to submit a brief to the Appeals Board. See the Practices and Procedures of the Workers’ Compensation Appeals Board.

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing Order must be final an d you must comply with the Tennessee Rules of Appellate Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s Order will become final by operation of law thirty calendar days after entry. See Tenn. Code Ann. § 50

- 6

- 239(c)(7).

For self

- represented litigants: Help from an Ombudsman is available at 800

- 332

- 2667.NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation www.tn.gov/workforce/injuries

- at

work/ wc.courtclerk@tn.gov | 1

- 800

- 332

- 2667

Docket No.:

________________________ State File No.:

______________________ Date of Injury: _____________________

___________________________________________________________________________ Employee

v.

_______________________________ ____________________________________________ Employer

Notice is given that ____________________________________________________________________ [List

name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date filestamped on the first page of the order(s) being appealed):



### □ Exped ited Hearing Order filed on _______________ 

### □ Motion Order filed on ___________________



### □ Compensation Order filed on__________________ 

### □ Other Order filed on_____________________ issued

by Judge __________________________________________________________
_______________.

Statement of the Issues on Appeal Provide a short and plain statement of the issues on appeal or basis for relief on appeal:

________________________________________________________________________________________

________________________________________________________________________________________

____________________________________________________________________________ ____________

________________________________________________________________________________________

Parties Appellant(s) (Requesting Party): _________________________________________ ☐ Employer ☐ Employee Address: _____________________________________ ___________________ Phone: ___________________ Email: __________________________________________________________ Attorney’s Name: ______________________________________________ BPR#: _______________________ Attorney’s Email: _________________________ _____________________ Phone: _______________________ Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellant *LB

- 1099 rev. 01/20 Page 1 of 2 RDA 11082 Employee Name: _______________________________________ Docket No.:

_____________________ Date of Inj.: _______________

Appellee(s) (Opposing Party): ____

_______________________________________ ☐ Employer ☐ Employee Appellee’s Address: ______________________________________________ Phone: ____________________ Email: _________________________________________________________ Attorney’s Name: ________________ _____________________________ BPR#: ________________________ Attorney’s Email: _____________________________________________ Phone: _______________________ Attorney’s Address: _________________________________________________________________________

* Att ach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE

I, _____________________________________________________________, certify that I have forwarded a true and exact copy of this Notice of Appeal by First Class mail, postage prepa id, or in any manner as described in Tennessee Compilation Rules & Regulations, Chapter 0800

- 02

- 21, to all parties and/or their attorneys in this case on this the __________ day of ___________________________________, 20 ____.

___________________________ _________________

__ [Signature of appellant or attorney for appellant]