1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION WORKERS’ COMPENSAT I ON APPEALS BOARD (HEARD JULY 25, 2017, AT JACKSON)

Vincent Taylor ) D ocket No

. 2015

- 0 6

- 0361 )

v. ) S tate File N o

. 78226

- 201 4 ) American Tire Distributors , et al. ) ) ) Appeal from the Court of Workers’ ) Compensation Claims ) Joshua D. Baker

, Judge )

Affirmed and Remanded

— Filed August 1 5 , 2017

The employee , a worker for a tire manufacturer, asserted a claim for a work

- related back injury, which the employer denied on the basis that the employee’s injury was not work

related

. The employee filed a petition fo r benefit determination, withdre w that petition, and refiled a new petition more than one year after the employer l ast paid benefits

. The employer filed a motion for summary judgment, claiming that the withdrawal of the first petition was tantamount to a nonsuit and that the claim was barred by the statute of limitations because t he second petition was filed more than one year after the employer’s voluntary payment o f benefits . The trial court determined the employee’s withdrawal of the first petition amounted to an attempt to voluntarily nonsuit the claim . However, the
court concluded the nonsuit was in effective bec ause no notice of nonsuit was filed and no order of nonsuit was entered by a judge. Accordingly, the trial court denied the motion for summary judgment, finding the claim remained active and was not barred by the statute of limitations. Th e e mployer has appealed. W e affirm the trial court’s decision and remand the case

. Presiding Judge Marshall L. Davidson, III

, delivered the opinion of the Appeals Board in which Judge David F. Hensley and Judge Timothy W. Conner joined.

John R. Lewis

, Nashville , Tenne ssee, for the employ er

- appellant, American Tire Distributors

Luvell L. Glanton

, Nashville , Tennessee, for the employ ee

- appellee, Vincent Taylor2 Fa ctual and Procedural Background

Vincent Taylor (“Employee”) alleges suffer ing injuries to his back lif ting tires while working for American Tire Distributors (“Employer”) on September 25, 2014. Employer authorized a single medical visit and then denied the claim on the basis it was not work

- related. On October 30, 2014, Employer pa id for Employee’s singl e authorized doctor’s visit.

Thereafter, Employee filed a p etition for b enefit d etermination on June 12, 2015

, seeking medical and temporary and permanent disability benefits. On July 17, 2015, Employee “withdrew” his petition in order to obtain additio nal medical proof . The withdrawal was memorialized in a “Notice of Withdrawal of Petition for Benefit Determination,” which stated Employee “desire[d] to withdraw the [ petition ] to gather additional medical documentation.” This document , signed and issue d by a mediator, stated that the parties could file an amended petition using the same docket and state file numbers and that the mediator was issuing the notice of withdrawal pursuant to Tennessee Code Annotated section 50

- 6

- 236.

Employee filed a second petition for benefit determination approximately eight months later on March 11, 2016 . This petition requested the same relief as the first petition

, identified the same date of injury, described the same injury, and includ ed the

same docket and state fil e number. There is no dispute that the second petition sought benefits for the same injury as the first petition.

Employer responded by fil ing a motion for summary judgment . Employer argu ed that when Employee withdrew the first petition

, the one

- year s tatute of limitations in Tennessee Code Annotated section 50

- 6

- 203(b)(2) (2016) began running again and that, because the subsequent petition was filed over one year after the date of Employer’s last voluntary payme nt on the claim , the claim was time

- barre d and should be dismissed

.

The trial court concluded that because no order of nonsuit had been entered by a judge as required by Tenn. Comp. R. & Regs. 0800

- 02

- 21

- .20(2) (2016) , the claim had remained pending notwithstanding its purported withdrawal

. The trial court further determined that the notice of withdraw a l issued by the mediator had no legal effect on the claim because the mediator lacked the authority to issue “a binding order.” Consequently, the trial court denied the motion for summary judgmen t. Employer has appealed.

Standard of Review

The grant or denial of a motion for summary judgment presents an issue of law and, therefore, our standard of review is de novo with no presumption of correctness. Rye v. Women’s Care Ctr. of Memphis, MPLLC

, 477 S.W.3d 235, 250 (Tenn. 2015); McBee3

v. CSX Transp., Inc. , No. W2015

- 01253

- COA

- R3

- CV, 2017 Tenn. App. LEXIS 129, at *14 (Tenn. Ct. App. Feb. 24, 2017). As such, we must “ make a fresh determination of whether the requirements of Rule 56 of the Tennesse e Rules of Civil Procedure have been satisfied. ” Rye , 477 S.W.3d at 250.

Analysis

This case involves an issue of first impression, i.e., whether a “Notice of Withdrawal of Petition for Benefit Determination” issued by a mediator serves as a voluntary di smissal of the claim for purposes of the statute of limitations. Employer
argues that the n otice of w ithdrawal was an effective voluntary dismissal of the claim and that the second petition , which was filed more than one year after the voluntary payment

o f benefits by Employer, is time

- barred and should be dismissed. Employee, on the other hand, argues that he did not voluntarily dismiss his claim but merely withdrew it until he could gather additional medical proof. He asserts that the second petition w as filed consistent ly with instructions contained in the mediator’s notice of withdrawal and that his claim is not time

- barred.

A petition for benefit determination , defined as “a request for the Bureau to provide assistance in the resolution of any disp uted issues in a workers’ compensation claim

, ” Tenn. Comp. R. & Regs. 0800

- 02

- 21

- .02(17) (2016)

, is the functional equivalent of a complaint

, Duck v. Cox Oil Co. , No. 2015

- 07

- 0089, 2016 TN Wrk. Comp. App. Bd. LEXIS 2, at *15 (Tenn. Workers’ Comp. App. Bd. Jan. 21, 2016). As such, it is the vehicle by which a claim is commenced in the Court of Workers ’ Compensation Claims

. S ee Tenn. Code Ann. § 50

- 6

- 203(b) (2016)

. O nce a petition for benefit determination has been filed, there are only four possible resol utions of the petition in the Court of Workers’ Compensation Claims : adjudication by a judge; settlement of the claim approved by a judge; a nonsuit or voluntary dismissal of the claim; or invol untary dismissal of the claim. 1

Given that no mechanism exist s in the workers’ compensation statute s or regulations for “withdrawing” a petition for benefit determination , the trial court correctly concluded that a withdrawal is the functional equivalent of a notice of nonsuit and that, unless certain conditions are met, the nonsuit does not become effective. 2 Because those conditions were not met in this case, the trial court found that Employee’s attempt to

1 Employer correctly points out that a petition for benefit determination must be filed to take advantage of the Bureau of Workers’ Compensation’s mediation program , address discovery disputes, or have the settlement of a claim approved by a judge

. However, such petitions are still concluded in one of the ways noted above : a settlement of the dispute, an adjudication of the dispute, or a dismissal of the dispute, either voluntary or involuntary.

2 A nonsuit is a “volu ntary dismissal of a case . . . without a decision on the merits.” Black’s Law Dictionary (10th ed. 2014).4

withdraw, or nonsuit, his claim was ineffective and thus the claim remained an active claim despite its purp orted withdraw al . We agree.

Tennessee Code Annotated section 50

- 6

- 203 establishes a one

- year statute of limitations. The statute provides

, in pertinent part

, that

[i]n instances when the employer has voluntarily paid workers’ compensation benefits, wi thin one (1) year following the accident resulting in injury, the right to compensation is forever barred, unless a petition for benefit determination is filed with the bureau

. . . within one (1) year from the latter of the date of the last authorized tre atment or the time the employer ceased to make payments of compensation to or on behalf of the employee.

Tenn. Code Ann § 50

- 6

- 203(b)(2). T he parties agree that Employer made a single voluntary payment o f benefits on October 30, 2014. There is also no d ispute that Employee filed a petition for benefit determination with in one year of that date

. However, i t was withdrawn on July 17, 2015, and a second petition was not refiled until some eight months later on March 11, 2016.

Although the statutes and re gulations applicable to workers’ compensation disputes contain no mechanism for the “withdrawal” of a petition for benefit determination, they do address nonsuits. Specifically

, a party may take one voluntary nonsuit “ at any time after it has been filed u nless the employee has been awarded temporary benefits through an interlocutory order. ” Tenn. Comp. R. & Regs. 0800

- 02

- 21

- .20(1) (2016). If a party elects to take a nonsuit, the party “may file a new claim for benefits within ninety (90) days of the orde r of dismissal.” Id. ; see also Tenn. Code Ann. § 50

- 6

- 239(c)(3) (2016) (“If a party who has filed a request for hearing files a notice of nonsuit of the action, either party shall have ninety (90) days from the date of the order of dismissal to institute an action for recovery of benefits . . . .”). However, “[a] notice of voluntary non

- suit shall not become binding until an order of non

- suit has been issued by a workers’ compensation judge.” Tenn. Comp. R. & Regs. 0800

- 02

- 21

- .20(2).

Here, Employee did not file a notice of nonsuit and a judge did not enter an order of nonsuit as provided for in the regulations . The regulatory language , which has the force of law, Hadzic v. Averitt Express , No. 2014

- 02

- 0064, 2015 TN Wrk. Comp. App. Bd. LEXIS 14, at * 7 (T enn. Workers’ Comp. App. Bd. May 18, 2015 ), is clear and unambiguous

– a nonsuit “shall not” become binding unless a judge issues an order to that effect, s ee Thomas v. Zipp Express , No. 2015

- 06

- 0546, 2017 TN Wrk. Comp. App. Bd. LEXIS 22, at *11 n.4 (Tenn. Workers’ Comp. App. Bd. Mar. 15, 2017) ( the words

“ must ” and “ shall ” are plain and unambiguous ) . No such order was entered in this case. Accordingly, the trial court correctly concluded that Employee’s claim remained an active claim , despite the purport ed withdrawal of the petition

.5

Moreover, as noted by the trial court , a “ n otice of w ithdrawal” issued by a mediat or has no legal effect. 3 It does not serve to nonsuit the claim, which is the only
way a petition can voluntarily be withdrawn. Thus, if a p arty wishes to voluntarily withdraw its petition, its only avenue is through a nonsuit as provided for in the pertinent regulations . Otherwise, the claim remains pending and active

. A contrary rule would enable a party to withdraw a petition for benefit determination any time the party desired

more evidence to bolster its claim or defense , only to refile it

, as many times as the party deemed necessary

. 4 This on again/off again approach to litigating a workers’ compensation dispute is inconsistent with th e legislative mandate of resolving cases in a

“ fair, equitable, expeditious, and efficient ” manner. Tenn. Code Ann. § 4

- 3

- 1409 (2016). This case is a prime example. The case lay dormant for approximately eight months after it began , the injury for which benefits are sought occurred nearly two years ago, and there is still no end in sight to the partie s’ dispute.

In sum, we hold that a “Notice of Withdrawal of Petition for Benefit Determination” issued by a mediator does not serve as a voluntary dismissa l of the claim for purposes of the statute of limitations. Thus, the trial court properly denied Employer’s motion for summary judgment.

Conclusion

For the foregoing reasons, we affirm the decision of the trial court and remand the case for any furthe r proceedings that may be necessary.

3 Although the mediator indicated she was issuing the notice of withdraw a l pursuant to Tennessee Code Annotated section 50

- 6

- 236 , that statute does not address withdraw a ls or a mediator’s authority to issue any such notice.

4 If a party determines it needs additional time or information, it has multiple options available to it that do not serve to discontinue the litigation or deprive the court of it s ability to control the pace of the litigation. For instance, a party may request more time or a continuance at the mediation stage, or it may proceed with the mediation process and address the need for additional time with the trial court at a schedulin g hearing

.TENNESSEE BUREAU OF WORKERS’ COMPENSATION WORKERS’ COMPENSAT ION APPEALS BOARD

Vincent Taylor ) Docket No. 2015-06-0361 )

v. ) State File No. 78226-2014 ) American Tire Distributors, et al. )

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 15th day of August

, 2017.

Name Certified Mail First Class

Mail Via

Fax Fax Number Via

Email Email Address

Luvell Glanton X glantonfirm@gmail.com John Lewis X john@johnlewisattorn e y.com Joshua Davis Baker , 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