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TENNESSEE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT CHATTANOOGA 

Bart C. Munyan, 

Employee, 

v. 

PCL Industrial Construction Co., 

Employer, 

And 

Old Republic Ins. Co., 

Carrier. 

) Docket No.: 2015-01-0255 

) 

) 

) State File No.: 68808-2015 

) 

) 

) Judge Thomas Wyatt 

) 

COMPENSATION HEARING ORDER 

DISMISSING CLAIM WITH PREJUDICE 

This claim came before the undersigned Workers' Compensation Judge on 

November 28, 2016, upon PCL Industrial Construction Co.'s (PCL's) Motion to Dismiss 

and, In the Alternative, Motion for Summary Judgment. 1 Bart Munyan did not file a 

response to PCL' s motion or appear by telephone for the motion hearing. 

PCL moved for dismissal of Mr. Munyan's claim under both the procedure set 

forth in Tennessee Code Annotated section 50-6-239(d)(4) (2015) and Tennessee 

Compilation Rules & Regulations 0800-02-21-.14(3) (2016), hereinafter referred to as the 

Rule .14(3) procedure, and Tennessee Rule of Civil Procedure 56 (2016). The focus of 

the dispositive motions is whether Mr. Munyan came forward at this stage of the claim 

with sufficient evidence to establish, under summary judgment standards, that his injuries 

arose primarily out of and in the course and scope of employment. For the reasons set 

1 The Court scheduled the November 28 hearing during an October 28 Status Conference conducted to set the 

response timelines for PCL's dispositive motions. Mr. Munyan participated in the Status Conference, during which 

the Court informed him of the requirement that he respond to the dispositive motions. The Court set forth the 

time lines scheduled during the Status Conference in an order issued October 28, a copy of which the Court Clerk 

served on Mr. Munyan. William Clayton, attorney for PCL, called in at the designated time for the November 28 

hearing. When Mr. Munyan did not call at the scheduled time, the Court telephoned him at the number provided in 

his Petition for Benefit Determination. Mr. Munyan did not answer the call, but the Court left a voicemail message 

informing him of the scheduled hearing. In its message, the Court also provided Mr. Munyan the telephone numbers 

to call to participate in the hearing and told him the Court would proceed with the hearing in his absence if he did 

not call within five minutes. When Mr. Munyan did not call within the next five minutes, the Court conducted the 

hearing without his participation. 
forth below, the Court concludes PCL is entitled to dismissal of Mr. Munyan's claim with 

prejudice to its refiling. 

The Rule .14(3) procedure provides that, where a claim is denied on grounds of 

compensability following an Expedited Hearing, the employer may file a motion to 

dismiss the claim. Rule .14(3) itself provides that the injured employee shall file a 

response to the employer's dismissal motion within thirty days after its filing and, 

thereafter, the Court shall set the motion for a hearing. After hearing the parties' 

positions regarding the dismissal motion, the Court shall enter an "appropriate order." 

On May 10, 2016, the Court conducted an in-person Expedited Hearing upon Mr. 

Munyan's request. During the hearing, the Court afforded Mr. Munyan the opportunity 

to introduce evidence in support of his claim the work conditions he encountered at PCL 

caused him to contract a medical condition that resulted in an off-work fall in which he 

suffered injuries. After considering the evidence introduced during the Expedited 

Hearing, the Court denied Mr. Munyan's claim for interlocutory relief on grounds of 

compensability. Specifically, the Court held at page 5 of its Expedited Hearing Order 

that: 

The law clearly places the burden on Mr. Munyan to prove, by expert 

medical proof, that he sustained disability and the need for medical care due 

to his alleged work-related-injury. He did not do so .... Accordingly, the 

Court finds Mr. Munyan did not establish that, at a hearing on the merits, 

he would likely prevail in showing that his fall arose primarily out of and in 

the course and scope of employment. 

The Rule .14(3) procedure provides an efficient and expeditious means by which 

an employer, who successfully defended an employee's claim on grounds of 

compensability during an Expedited Hearing, may compel an employee to move forward 

in attempting to establish his claim. PCL invoked the procedure by filing its pending 

motion to dismiss and, thus, obligated Mr. Munyan to either move his claim forward by 

bringing forth expert medical opinion supporting the work-relatedness of his injuries or 

risk dismissal of his claim. The Court allowed Mr. Munyan more than the thirty days 

provided by Rule .14(3) to respond to PCL's motion; however, Mr. Munyan did not 

submit any response nor did he participate in the hearing scheduled to give him an 

opportunity to explain to the Court why it should not dismiss his claim. 

In considering PCL's Motion to Dismiss under the Rule .14(3) procedure, the 

Court is mindful of the Workers' Compensation Appeals Board's decision in Syph v. 

Choice Food Group, Inc., No. 2015-0600288,2016 TN Wrk. Comp. App. Bd. LEXIS 18, 

at *21-22 (Tenn. Workers' Comp. App. Bd. Apr. 21, 2016). In Syph, the Appeals Board 

held: 

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[W]hen an employer seeks dismissal of an employee's claim for workers' 

compensation benefits pursuant to Tennessee Code Annotated section 50-6-

239(d)(4) and/or. Tennessee Compilation Rules and Regulations 0800-02-

21-.14(3), in circumstances where the trial court previously denied 

temporary disability or medical benefits on grounds of noncompensability, 

the trial court must treat the motion for dismissal as one filed pursuant to 

any applicable rule of the Tennessee Rules of Civil Procedure. 

In light of the fact the determination of PCL's motion to dismiss requires the Court to 

look outside the pleadings filed in this claim, the Court will consider whether PCL is 

entitled to dismissal under the Rule .14(3) procedure in view of the standard applicable to 

motions for summary judgment under Tennessee Rule of Civil Procedure 56. 

The Appeals Board considered the adjudicatory standard applicable to motions for 

summary judgment filed in the Court of Workers' Compensation Claims in Payne v. D 

and D Electric, No. 2014-01-0023, 2016 TN Wrk. Comp. App. Bd. LEXIS 21, at *6-12 

(Tenn. Workers' Comp. App. Bd. May 4, 2016). In Payne, the Appeals Board held the 

standards set forth in Tennessee Code Annotated section 20-16-101 (2015) apply to the 

determination of motions for summary judgment filed in a workers' compensation claim. 

Quoting the language of section 20-16-101, the Appeals Board held in Payne that a 

moving party who does not bear the burden of proof is entitled to summary judgment if 

that party "(I) [ s ]ubmits affirmative evidence that negates an essential element of the 

nonmoving party's claim; or (2) [d]emonstrates to the court that the nonmoving party's 

evidence is insufficient to establish an essential element of the nonmoving party's claim." 

/d. at *8. The Board also held that, in reviewing the factual record submitted for 

consideration in a summary judgment proceeding, the trial court is to consider the facts in 

the light most favorable to the opponent of summary judgment. /d. at * 12. 

By its terms, the Rule .14(3) procedure is tied to the evidence submitted during an 

Expedited Hearing. During the Expedited Hearing, Mr. Munyan sought to establish the 

compensability of his claim by submitting records documenting the emergent treatment 

he received after his fall. The Court closely evaluated those records and found as follows 

at page 3 of the Expedited Hearing Order: 

Mr. Munyan testified he sought medical care at the emergency department 

of Skyridge Medical Center in Cleveland, Tennessee following the fall. 

The Skyridge records indicate Mr. Munyan arrived at 9:42 a.m. on March 

22, 2015, complaining of facial swelling that occurred in a fall on March 

21, 20 15. (Ex. 2 at 7.) The records indicate Mr. Munyan gave a history of 

falling "at home" and that he described a syncopal episode lasting three 

seconds as the reason he fell. A CT Scan of the maxillofacial region 

revealed Mr. Munyan had sinusitis and suffered "an acute fracture 

dislocation of the left temporal mandibular joint." The records do not 

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document that Mr. Munyan gave a history that conditions at work caused 

his illness or contributed to his fall. 

Mr. Munyan's failure to come forward with expert medical opinion establishing a 

causal connection between the injuries he sustained in his fall and the conditions he 

encountered at work is fatal to his claim now that PCL has filed its Motion to Dismiss. 

The Court still has no medical evidence before it other than the emergency room records 

that Mr. Munyan submitted during the Expedited Hearing. Even considering those 

records in the light most favorable to Mr. Munyan's claim, the Court finds no evidence 

therein upon which Mr. Munyan can support a finding that his injuries arose primarily 

out of and in the course and scope of his employment. PCL's Motion to Dismiss and Mr. 

Munyan's failure to respond to it demonstrate "that the nonmoving party's evidence is 

insufficient to establish an essential element of the nonmoving party's claim." See Tenn. 

Code Ann. § 20-16-101 (2015). That being the case, PCL is entitled to dismissal of Mr. 

Munyan's claim against it. 

The Court next turns to the issue of whether it should dismiss Mr. Munyan's claim 

with or without prejudice to its refiling. In Silas v. Brock Services, No. 2014-02-0013, 

2015 TN Wrk. Comp. App. Bd. LEXIS 35, at *12 (Tenn. Workers' Comp. App. Bd. Oct. 

2, 20 15), the Appeals Board affirmed a decision by the trial court to dismiss an 

employee's claim without prejudice. However, in Silas, the employee appeared during 

the oral hearing on the employer's Rule .14(3) dismissal motion to explain she did not, at 

that time, have the financial means to obtain the medical opinion needed to support her 

claim. In consideration of that fact, the trial court dismissed her claim without prejudice 

to its refiling. 

Here, Mr. Munyan filed no response to PCL's dispositive motions, nor did he 

participate in the hearing scheduled for the oral presentation of his position to the Court. 

Rule 4.02(B) of the Practices and Procedures of the Court of Workers' Compensation 

Claims (20 16) provides that, if a party does not file a response to a dispositive motion, 

the Court will consider the motion to be unopposed. In view of Mr. Munyan's lack of 

response to PCL's motions and his failure to participate in the hearing on the motion, the 

Court considers it appropriate to dismiss Mr. Munyan's claim with prejudice to its 

refiling. See Syph, supra, at *23, holding a dismissal with prejudice under the Rule 

.14(3) procedure was proper where the employee did not respond. 

The Court is aware PCL also seeks summary judgment under Tennessee Rule of 

Civil Procedure 56. The Court holds its dismissal under the Rule .14(3) procedure 

pretermits the need to consider whether summary judgment is appropriate in this claim. 

IT IS, THEREFORE, ORDERED as follows: 

1. Mr. Munyan's claim is dismissed with prejudice to its refiling. 

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2. The Court taxes the $150 filing fee in this claim to PCL and/or its workers' 

compensation carrier pursuant to Rule 0800-02-21-.07 of the Bureau's Mediation 

and Hearing Rules (2016). PCL or its carrier shall promptly remit the filing fee to 

the Clerk ofthe Court of Workers' Compensation Claims. 

3. PCL shall prepare and submit the SD-1 for this matter within ten days of the date 

of judgment. 

ENTERED this the 6th day of December, 2016. 

Court of Workers' Compensation Claims 

Right to Appeal: 

Tennessee Law allows any party who disagrees with this Compensation Hearing 

Order to appeal the decision to the Workers' Compensation Appeals Board or the 

Tennessee Supreme Court. To appeal your case to the Workers' Compensation Appeals 

Board, you must: 

1. Complete the enclosed form entitled: "Compensation Hearing Notice of 

Appeal." 

2. File the completed form with the Court Clerk within thirty calendar days of 

the date the Workers' Compensation Judge entered the Compensation Hearing Order. 

3. Serve a copy of the Compensation Hearing Notice of Appeal upon the 

opposing party. 

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 of a 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 lndigency, on a 

form prescribed by the Bureau, seeking a waiver of the filing fee. The Affidavit of 

lndigency 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 of 

Indigency and issue an Order granting or denying the request for a waiver of the filing fee 

as soon thereafter as is practicable. Failure to timely pay the filing fee or file the 

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Affidavit of Indigency in accordance with this section shall result in dismissal of the 

appeal. 

5. The party filing the notice of appeal, having the responsibility of ensuring a 

complete record on appeal, may request, from the Court Clerk, the audio recording of the 

hearing for the purpose of having a transcript prepared by a licensed court reporter and 

filing it with the Court Clerk within fifteen calendar days of the filing of the 

Compensation Hearing Notice of Appeal. Alternatively, the party filing the appeal may 

file a joint statement of the evidence within fifteen calendar days of the filing of the 

Compensation Hearing Notice of Appeal. The statement of the evidence must convey a 

complete and accurate account of what transpired in the Court of Workers' Compensation 

Claims and must be approved by the workers' compensation judge before the record is 

submitted to the Clerk of the Appeals Board. See Tenn. Comp. R. & Regs. 0800-02-22-

.03 (2016). 

6. After the 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) (2016). 

To appeal your case directly to the Tennessee Supreme Court, the 

Compensation Order must be final and you must comply with the Tennessee Rules 

of Appellate Procedure. If neither party timely files an appeal with the Appeals 

Board, this Order will become final by operation of law thirty calendar days after 

entry pursuant to Tennessee Code Annotated section 50-6-239(c)(7). 

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CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of this Compensation Hearing Order 

Dismissing Claim With Prejudice was sent to the following recipients by the following 

methods of service on this the 6th day ofDecember, 2016. 

Name Certified 

Mail 

Bart Munyan, selfrepresented 

Ford Little and William 

Clayton, Attorneys 

Via Via Service sent to: 

Fax Email 

X munyanb@yahoo.com 

X flittle@wmbac.com; 

bclayton@wmbac.com 

m, Clerk of Court 

Court of orkers' Compensation Claims 

WC.CourtClerk@tn.gov 

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