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IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MURFREESBORO

ANTHONY JONES

, ) Docket No.: 2015

- 05

- 0427

Employee, )

v. ) State File Number: 77314

- 2015 TROJAN LABOR OF NASHVILLE, )

LLC )

Employer

. ) Judge Dale Tipps )

ORDER GRANTING MOTION TO DISMISS

THIS CAUSE came before the undersigned Workers’ Compensation Judge on April 7 , 2016, for a telephonic hearing on the Motion to Dismiss pursuant to Tennessee Compilation Rules and Regulations Rule 0800

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- .14(3) (2015) filed February 1

, 2016, by the Employer, Trojan Labor of Nashville, LLC . The central legal issue is whether the Employee, Anthony Jones , has resolved the evidentia ry inadequacies in his claim or articulated a clear intent and method to do so. For the reasons set forth below,

the Court finds Trojan ’ s motion is well

- taken and dismiss es Mr. Jones ’ claim.

History of Claim

Mr. Jones filed a Petition for Benefit Determination seeking medical benefits for injuries he allegedly suffered o n September 16, 2015, while working for Trojan

. Specifically, he alleged he injured his back and right shoulder on that date while lifting an

oven . The central issue for adjudication at the Expedited Hearing was whether Mr. Jones was likely to establish a t a hearing on the merits that he suffered an injury arising primarily out of and in the course and scope of h is employment. In the resulting Expedited Hearing Order Denying Requested Benefits, this Court concluded he had not met the burden of establishing that likelihood.

Based largely on a credibility determination, t he Court entered an Order on January 21, 2016, finding Mr. Jones did not present sufficient proof to establish the occurrence of a specific lifting injury on September 16, 2015. Trojan sought dismissal of

this claim because Mr. Jones did not introduce sufficient evidence to prevail at the Expedited Hearing a nd did not appeal the Court’s findings.2 Findings of Fact and Conclusions of Law

Rule 14(3) 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) provides a procedural mechanism for the potential dismissal of a workers’ compensation claim that is unique to the Court of Workers’ Compensation Claims. As such, a Rule .14(3) motion is distinct from the dismissal mechanisms (motions to dismiss

and fo r summary judgment) provided for in the Tennessee Rules of Civil Procedure. Therefore, the Court finds that a Rule .14(3) motion to dismiss is an alternate procedure as contemplated by Tennessee Code Annotated section 50

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- 239(c)(1) (2015), and the

standa rds and procedures applied to motions to dismiss or for summary judgment under the Tennessee Rules of Civil Procedure do not govern the determination of a Rule .14(3)

motion.

A party may only file a Rule .14(3) motion after the Court conducts an Expedited Hearing and denies the claim on the grounds of compensability. When denying relief at an Expedited Hearing, the Court must find that the employee would be unlikely to prevail at a hearing on the merits. Tenn. Code Ann. § 50

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- 239(d)(1) (2014).

That b eing the case, Rule .14(3) provides a procedural mechanism by which an employer can force the employee to address the evidentiary inadequacies that resulted in the adverse decision at the Expedited Hearing. Therefore

, Trojan ’s Rule .14(3) motion

forced Mr . Jones to address h is evidentiary inadequacies by ei ther producing evidence

that his injury arose primarily out of an d in the course and scope of his employment, or by articulating a clear intent and method to do so.

Although Mr. Jones filed a response t o Trojan’s motion, he did not identify any new evidence likely to establish his injuries arose out of and in the course and scope of his employment. Further, Mr. Jones failed to meet the second prong of the Rule .14(3) analysis. He identified no method f or producing the necessary evidence or any intent to do so in his written response. Mr. Jones’ only mention of any additional proof during the motion hearing was his attorney’s statement that, “there may be additional proof

– who

knows?” The Court finds this is insufficient to constitute a clear intent and method of adducing the necessary additional proof. Dismissal is thus appropriate.

Mr. Jones first contends dismissal is improper because the Court’s January 21, 2016 Order denying benefits made no exp licit finding on the issue of compensability. He notes the Court’s finding that “Mr. Jones has not come forward with sufficient evidence

from which this Court can conclude he is likely to prevail at a hear ing on the merits. Mr. Jones’ request for medical and temporary disability benefits is denied at this time. ” Mr. Jones argues the Court’s use of “at this time” and its scheduling an initial hearing indicate that the Court’s expectation that the claim would continue. He contends that, “if the3

Co urt intended the Order as a denial based upon compensability, there would be express language to that effect sufficient to put the employee on notice of that important fact.”

Mr. Jones is correct that t he Court’s Order of January 21, 2016, did not express ly

state is the denial is “ based upon compensability. ” However, the Court’s findings and conclusions of law accomplished the same effect. The Order clearly states:

After carefully reviewing the testimony and exhibits, the Court cannot

credit Mr. Jones’ claim of a specific lifting injury on September 18, 2015. Accordingly, Mr. Jones has not shown he is likely to prevail at a hearing on the merits that his injuries arose primarily out of or in the course and scope of his employment as required by Tenness ee Code Annotated section 50

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- 102(14) (2015).

Tennessee Code Annotated section 50

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- 102(14) (2015) provides, in part, an injury is compensable “only if the injury is caused by a specific incident, or set of incidents, arising primarily out of and in the course and scope of employment.” The fact that the

Court found Mr. Jones unlikely to prove a specific incident means he did not establish

that his work caused his injury. A n injury that is not work

- related, by definition, is not compensable. Thus, the Court’s denial of Mr. Jones’ claim because he failed to prove it

work

- related was a finding based upon compensability. To conclude otherwise would be

an exercise of form over substance. See Silas v. Brock Services, No. 2014

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- 0013, 2015 TN Wrk. Comp. App. Bd. 35, at *9 (Tenn. Workers’ Comp. App. Bd. Oct. 2, 2015).

Mr. Jones next cites Tennessee Code Annotated section 50

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- 239(d)(4), which provides :

If a motion for temporary disability or medical benefits is denied on the basis that the claim is not compensable, the proceeding shall continue according to the procedure provided in subsection (c) unless the employee files a request for an appeal to the workers ’ compen sation appeals board. At any time after the employee has exhausted the procedures for seeking an appeal from the workers ’ compensation appeals board, as provided in this chapter, the workers ’ compensation judge may entertain an appropriate

motion from t he employer for dismissal of the claim.

Mr. Jones notes the Court may entertain a motion to dismiss only “after the employee has exhausted the procedures for seeking an appeal from the workers ’ compensation appeals

board.” He argues that, since he filed no appeal in this case, he never exhausted the procedures for seeking an appeal. Therefore, he contends section 50

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- 239(d)(4) precludes a motion to dismiss at this stage of the claim

. 1

1 Mr. Jones’ arguments are premised in part on his contention that he is entitled to liberal construction of the4

Mr. Jones’ argument, while creative, is unpersuasive

. Section 50

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- 239(d)(4) does not specifically preclude dismissal in cases where no appeal is taken. Instead, it merely requires that an employer must wait until the conclusion of any appeal before moving for dismissal. The most impartial and straightforward interpre tation of “exhausting the procedures for seeking an appeal” includes the failure to file a timely appeal. See Silas v.

Brock Services , No. 2014

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- 0013

, 2015 TN Wrk

. Comp

. App

. Bd

. LEXIS 35 , at * 11

- 12 (Tenn. Workers’ Comp. App. Bd. O ct

. 02, 2015 ) (upholding dismissal of employee’s claim pursuant to Rule .14(3) after employee failed to appeal an expedited hearing order).

Mr. Jones instead advocates a reading of the statute that would serve as a disincentive for employees to seek appellate review of interloc utory orders and would impede the courts’ ability to control their dockets by dismissing claims that exhibit no likelihood of success.

Finally, Rule .14(3) is silent regarding whether a dismissal should be with or without prejudice. The Court f inds that M r. Jones received a full and fair opportunity to present h is case, bu t nonetheless failed to meet his burden. Furthermore, because M r. Jones failed to identify any method or intent to cure his evidentiary shortcomings, i t would seem contrary to the purposes of Rule .14(3), as well as the legislative intent of the 2013 reforms, to dismiss the matter, only to allow Mr. Jones to re

- file his claim and force Trojan to make the very same arguments, expending additional time and resources. For this reason, and for the sake of judicial econo my, the Court dismisses Mr. Jones ’ claim with prejudice.

IT IS, THEREFORE, ORDERED that the above

- captioned matter is hereby dismissed with prejudice. The filing fee for this this cause of $1 50.00 is taxed to the Employer, Trojan , pursuant to Rule 0800

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- .07 of the Mediation and Hearing Procedures, for which execution may issue, as necessary.

Unless an appeal of this order is filed with the Workers’ Compensation Appeals

Board or the Tenne ssee Supreme Court, this order shall become final in thirty days.

ENTERED this the 13th day of April

, 2016

.

_____________________________________ Judge Dale Tipps

Court of Workers’ Compensation Claims

applicable provisions of the Workers’ Compensation Law. This is incorrect under current law. The Workers’ Compensation Law shall not be remedially or liberally construed in favor of either party but shall be construed fairly, impartially and in accordance with basic principles of statutory c onstruction favoring neither the employee nor employer. Tenn. Code Ann. § 50

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- 116 (2015).5

Right to Appeal :

Tennessee Law allows any party who disag rees with this Dismissal Order to appeal the decision to the Workers’ Compensation Appeals Board. To file a Notice of Appeal, you must:

1. Complete the enclosed form entitled: “ Compensation Hearing Notice of Appeal.”

2. File the completed form with the Court Clerk within thirty days of the date the Compensation Order was entered by the Workers’ Compensation Judge

. See Tenn. Comp. R. & Regs. 0800

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- .01(1)(b).

3. Serve a copy of the Request For 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. P ayments 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 Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing

fee. The Affidavit of Indigency 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 re quest for a waiver of the filing fee as soon thereafter as is practicable. Failure to timely pay the filing fee or file the Affidavit of Indigency in accordance with this section shall result in dismissal of the appeal.

5. After the Workers’ Compensation Ju dge 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

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- .02(3).6 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Order Granting Motion to

Dismiss was sent to the following recipients by the following methods of service on this

the 13 th day of April

, 2016

.

Name Certified

Mail Via

Fax Via

Email Service sent to:

Tracy Moore X tracy@moorepeden.com

Laurenn Disspayne X ldisspayne@manierherod.com

_____________________________________ Penny Shrum, Clerk of Court Court of Workers’ Compensation Claims WC.CourtClerk@tn.gov