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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Cornell Ayers, deceased, by ) Docket No. 2018-08-1189

Tiffany Ayers )

) State File No. 75457-2018

v. )

)

Smith & Nephew, Inc., et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Deana C. Seymour, Judge )

Vacated and Remanded

This interlocutory appeal involves a claim for death benefits. After filing a petition for 

benefits identifying the deceased worker and the existence of a dependent spouse, the 

attorney of record took no further action on the claim. An individual identified as the 

decedent’s niece later participated in a show cause hearing and requested additional time 

to file a request for a hearing. That request was granted, and the niece filed a request for 

an expedited hearing. The employer responded by filing a motion to dismiss, asserting 

that the niece is not a member of any class of potential dependents under Tennessee Code

Annotated section 50-6-210(c), that the niece is not the legal representative of the 

decedent’s estate, and that she has no standing to bring a claim for death benefits. The 

trial court denied the employer’s motion to dismiss, determining the motion should be 

treated as a motion for summary judgment because the employer relied on the niece’s 

affidavit that was filed in support of the request for an expedited hearing. The employer 

has appealed. We vacate the trial court’s order and remand the case. 

Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which

Judge David F. Hensley and Judge Pele I. Godkin joined.

Christopher M. Myatt, Memphis, Tennessee, for the employer-appellant, Smith & 

Nephew, Inc.

Cornell Ayers, deceased, by Tiffany Ayers, Memphis, Tennessee, pro se

FILED

Feb 18, 2020

02:52 PM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD
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Factual and Procedural Background 

Prior to his death on August 22, 2018, Cornell Ayers (“Employee”) worked for 

Smith & Nephew, Inc. (“Employer”). While working at Employer’s facility on August 

21, 2018, Employee apparently fell and hit his head. He was taken by ambulance to a 

local hospital where he died the following day.

1 On October 1, 2018, an attorney filed a 

petition for death benefits in the name of the deceased employee. The petition indicated

there is a surviving spouse but no dependent children. Thereafter, a mediator issued a 

Dispute Certification Notice indicating that Employee did not “attend the mediation” and 

“did not communicate[] to reschedule with the Bureau.” The notice shows that it was 

mailed to Employee’s mailing address, but there is no record of the notice being served 

on the attorney who filed the petition for death benefits. 

The record on appeal contains no other references to the attorney who filed the 

petition. More importantly, there is no motion to withdraw as counsel, no motion to 

substitute counsel, and no order explaining why the attorney of record was no longer 

involved in the case.2

 Moreover, there was no motion to add a party and no order adding 

a party. Yet, on July 1, 2019, the trial court issued a show cause order instructing 

“Tiffany Ayers, as representative of the Estate of Cornell Ayers, deceased” to show cause 

as to why the claim should not be dismissed for failure to file a request for a hearing 

consistent with Tenn. Comp. R. & Regs. 0800-02-21-.11(1) (2019).

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 The order was 

served on Tiffany Ayers and Employer’s attorney, but there is no indication it was 

sent to the attorney who filed the petition for death benefits. There is also no 

indication as to why Tiffany Ayers is identified as the representative of the deceased 

employee’s estate. 

The show cause hearing was held on August 19, 2019, and the trial court issued an 

order the following day noting that Ms. Ayers had requested additional time to file a 

hearing request. Finding that Ms. Ayers showed a sufficient intent to pursue the case, the 

trial court declined to dismiss the case, stating in its order that she must file a request for 

a hearing on or before September 9, 2019, or “the Court will enter a dismissal without 

prejudice.” 

1 The record is silent as to the facts surrounding the events of August 21, 2018, other than as stated in the 

affidavit of Tiffany Ayers filed in support of a request for a hearing. We have gleaned the facts from the 

documents filed in the trial court. 

2 In its brief, Employer states that “[c]ounsel for the claimant withdrew his representation after filing the 

Petition.” However, there is no document in the record evidencing the attorney’s withdrawal and there is 

no court order approving the withdrawal. See Tenn. Comp. R. & Regs. 0800-02-21-.04(3). 

3 The regulation provides that “either party may file a request for expedited hearing or request for 

scheduling hearing” and that “[i]f no request for hearing is filed within sixty (60) days after the dispute 

certification notice is filed, the clerk will set a show-cause hearing.” Tenn. Comp. R. & Regs. 0800-02-

21-.11(1). 
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Thereafter, Ms. Ayers filed a request for an expedited hearing on September 4, 

2019, asking the court to make a decision on the record rather than hold an in-person 

hearing. In addition to the request for an expedited hearing, Ms. Ayers submitted an 

affidavit as required by Tenn. Comp. R. & Regs. 0800-02-21-.15(1). Neither the request 

for an expedited hearing nor Ms. Ayers’s affidavit indicates that Ms. Ayers is the legal 

representative of Cornell Ayers’s estate. The affidavit does, however, indicate that 

Employee is Ms. Ayers’s uncle. 

Thereafter, Employer filed a motion to dismiss for failure to state a claim upon 

which relief can be granted, asserting Ms. Ayers lacked standing to pursue the claim for 

death benefits. Employer also argued she was not a dependent as defined by Tennessee 

Code Annotated section 50-6-210 (2019), adding that Ms. Ayers “is not an attorney nor 

personal representative of [Employee’s] estate.” Employer asserted there is no 

evidence that an estate has been opened on behalf of Employee or that Ms. Ayers 

has been judicially appointed as the representative of any such estate. Ms. Ayers 

did not appear at the hearing on Employer’s motion to dismiss. 

In its subsequent order, the trial court observed that Employer relied on Ms. 

Ayers’s affidavit in support of its motion to dismiss and found the affidavit was a 

document that fell outside the pleadings. Thus, the court treated Employer’s pleading as

a motion for summary judgment. See Tenn. R. Civ. P. 12.02 (“If . . . matters outside the 

pleadings are presented to and not excluded by the court, the motion shall be treated as 

one for summary judgment.”).4

The trial court denied Employer’s motion to dismiss, 

stating that “all parties shall be given the opportunity to present any pertinent material 

under Rule 56.” Employer has appealed the trial court’s denial of its motion to dismiss. 

Standard of Review 

The standard we apply in reviewing a trial court’s decision presumes that the 

court’s factual findings are correct unless the preponderance of the evidence is otherwise. 

See Tenn. Code Ann. § 50-6-239(c)(7) (2019). The determination of whether the trial 

court erred in ruling on a motion to dismiss for failure to state a claim upon which relief 

could be granted is a question of law. Doe v. Catholic Bishop for Diocese of Memphis, 

No. W2007-01575-COA-R9-CV, 2008 Tenn. App. LEXIS 527, at *3 (Tenn. Ct. App. 

4 We offer no opinion as to whether an affidavit submitted in accordance with Tenn. Comp. R. & Regs 

0800-02-21-.15(1) is a “matter[] outside the pleading” as described in Rule 12.02 of the Tennessee Rules 

of Civil Procedure. Compare Johnson v. McKee Foods Corp., No. E2003-02899-WC-R3-CV, 2004 

Tenn. LEXIS 867, at *7 (Tenn. Workers’ Comp. Panel Oct. 12, 2004) (“We find that facts outside the 

complaint were presented to the court and . . . the motion must be considered as one for summary 

judgment.”), with Belton v. City of Memphis, No. W2015-01785-COA-R3-CV, 2016 Tenn. App. LEXIS 

314, at *12 (Tenn. Ct. App. May 10, 2016) (“[W]here documents are required to be attached to a 

complaint in conformity with Rule 10.03, consideration of those documents by the trial court does not 

convert a motion to dismiss to a motion for summary judgment.”). 
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Sept. 16, 2008). Thus, the standard we apply in reviewing a trial court’s ruling on a 

motion to dismiss is de novo with no presumption of correctness. Id. Moreover, the 

interpretation and application of statutes and regulations are questions of law that are 

reviewed de novo with no presumption of correctness. See Mansell v. Bridgestone 

Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). Finally, we are mindful 

of our obligation to construe the workers’ compensation statutes “fairly, impartially, and 

in accordance with 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

Employer raises four issues on appeal, which we have re-stated as follows: (1) 

whether Ms. Ayers is a dependent of Employee; (2) whether Ms. Ayers has standing to 

prosecute the claim; (3) whether Employee’s claim for workers’ compensation benefits is 

assignable; and (4) whether the court erred in failing to consider Ms. Ayers’s affidavit as 

an integral part of the petition. In the context of the appeal as it has been presented to us, 

however, we are unable to reach the merits of these issues because: (1) the attorney filing 

the petition for benefits failed to comply with Tenn. Comp. R. & Regs. 0800-02-21-

.04(3) and; (2) neither the parties nor the court addressed how or why Ms. Ayers was 

added as a party. There is no motion to withdraw as counsel, no motion to substitute 

parties or add a party, and no order explaining the addition of Ms. Ayers as a party or a 

judicially-appointed representative of the estate of the decedent. 

The Tennessee Court of Workers’ Compensation Claims conducts all hearings in 

accordance with the Tennessee Rules of Evidence and the Tennessee Rules of Civil 

Procedure “unless an alternate procedural or evidentiary rule has been adopted by the 

administrator.” Tenn. Code Ann. § 50-6-239(c)(1). In examining the process of filing 

pleadings and the issue of attorney representation, we must consider both the Rules of 

Civil Procedure and the rules and regulations applicable to the Court of Workers’ 

Compensation Claims. 

Rule 11.01(a) of the Tennessee Rules of Civil Procedure requires that “every 

pleading, written motion, and other paper shall be signed by at least one attorney of 

record in the attorney’s individual name.” Furthermore, the rules and regulations 

governing the Court of Workers’ Compensation Claims states that “[r]epresentation 

continues until the case concludes, including all appeals[,] or until withdrawal from 

representation is approved by a judge. An attorney seeking to withdraw must file a 

motion with reasonable notice provided to the represented party.” Tenn. Comp. R. & 

Regs. 0800-02-21-.04(3). Here, there is no indication in the record that the attorney who 

filed the petition for death benefits filed a motion to withdraw or sought approval from 

the trial court to withdraw as attorney of record. Accordingly, copies of all documents 

filed with the Bureau or the trial court clerk should have been served on all parties or 

their attorneys of record. Tenn. Comp. R. & Regs. 0800-02-21-.08. In the present case, 
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the only pleading signed by the attorney of record is the petition for benefit 

determination, and there is no evidence the attorney of record was served with any 

documents filed subsequent to the filing of the petition. 

Moreover, there is no explanation in the record as to how or why Ms. Ayers was 

added as a party or why the trial court permitted her to sign and file a Request for 

Expedited Hearing when previous filings indicated there was an attorney of record. As 

we have previously observed, a party may not proceed in a pro se capacity while

represented by counsel. See Lightfoot v. Xerox Bus. Servs., No. 2015-01-0233, 2016 TN 

Wrk. Comp. App. Bd. LEXIS 43, at *12 (Tenn. Workers’ Comp. App. Bd. Sept. 12, 

2016). Accordingly, until the attorney who filed the petition for death benefits is 

permitted to withdraw by the trial court, he remains the attorney of record. 

In addition, a non-party who is not an attorney may not represent an injured 

worker, a surviving spouse, or any other litigant in a workers’ compensation case. See

Tenn. R. Civ. P. 11.01(a); Tenn. Comp. R & Regs. 0800-02-21-.04(1). Filings made by a 

person purportedly representing the estate of a deceased worker in a pro se capacity 

cannot be considered until the court has approved the withdrawal of the attorney of 

record and added the judicially-designated representative of the estate as a party. Id. 

Conclusion

Accordingly, the trial court’s order denying Employer’s motion to dismiss is 

vacated and the case is remanded to the trial court for such additional action as is deemed 

appropriate by the trial court consistent with this opinion. Costs on appeal are taxed to 

Employer.
 TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

 WORKERS’ COMPENSATION APPEALS BOARD 

) Docket No. 2018-08-1189 

) 

) State File No. 75457-2018 

) 

)

) 

) 

) 

) 

) 

Cornell Ayers, deceased, by

Tiffany Ayers

v. 

Smith & Nephew, Inc., et al. 

Appeal from the Court of Workers’ 

Compensation Claims

Deana C. Seymour, Judge ) 

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 18th day 

of February, 2020. 

Name Certified 

Mail

First Class 

Mail

Via 

Fax

Via 

Email

Sent to: 

Cornell Ayers, deceased, by 

Tiffany Ayers

X 3187 Dunkin Williams Road 

Memphis, TN 38119

tnayers08@gmail.com

Jonathan L. May X jmay@forthepeople.com

Christopher Myatt X cmyatt@martintate.com

Deana C. Seymour, 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’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B 

Nashville, TN 37243 

Telephone: 615-253-0064 

Electronic Mail: WCAppeals.Clerk@tn.gov

X