          IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                           AT NASHVILLE

DEBORAH SYPH,                                )   Docket No.: 2015-06-0288
         Employee,                           )
v.                                           )   State File Number: 36614-2015
CHOICE FOOD GROUP, INC.,                     )
         Employer,                           )   Judge Joshua Davis Baker
And                                          )
AUTO OWNERS INSURANCE,                       )
         Carrier.                            )
                                             )

                ORDER ON EMPLOYER’S MOTION TO DISMISS


      The Court convened telephonically on January 5, 2016, for a hearing of the
Motion to Dismiss filed by the employer, Choice Food Groups, Inc., pursuant to
Tennessee Compilation Rules and Regulations 0800-02-21-.14(3) (2015). In its Motion,
Choice Foods argued the claim should be dismissed because the Court denied the
employee’s, Deborah Syph’s, claim on compensability grounds following an Expedited
Hearing.

      There are two main legal issues. The first is whether this Court denied Ms. Syph’s
claim on compensability grounds. The second is whether the Court should dismiss her
claim. For the reasons provided below, the Court finds that it denied Ms. Syph’s claim
on compensability grounds, and further finds that her claim should be dismissed.

                             Relevant Factual Background

      The employee, Deborah Syph, is a fifty-three-year-old resident of Davidson
County, Tennessee. She filed a Petition for Benefit Determination seeking medical and
temporary disability benefits for a back injury she alleged to have suffered in the course
and scope of her employment with Choice Foods. Ms. Syph requested an Expedited
Hearing. Following the Expedited Hearing, the Court issued an order denying Ms. Syph
temporary disability medical benefits. The Court stated the following in its order:
        Dr. Law evaluated Ms. Syph and opined that medical causation could not
        be established. The Workers’ Compensation Law presumes the authorized
        treating physician’s opinion on causation is correct unless rebutted by a
        preponderance of the evidence. See Tenn. Code Ann. § 50-6-102(13)(E)
        (2014). Ms. Syph provided no contradictory causation opinion. Concerning
        temporary disability benefits, the Workers’ Compensation Law provides
        that an employer must provide those benefits until the employee reaches
        maximum medical improvement, so long as the employee can prove an
        inability to work due to a compensable injury. . . . Ms. Syph cannot show
        that she suffered a compensable injury.

        Without an opinion linking her back condition to her work for Choice
        Foods, Ms. Syph is unlikely to prevail at a hearing on the merits. The
        Court denies her claim for temporary disability and medical benefits at this
        time.

       When the Court convened the hearing of Choice Foods’ Motion to Dismiss,
attorney Michael Haynie argued the motion on Choice Foods’ behalf. Despite being
given notice of the hearing, Ms. Syph did not participate in the hearing and did not file a
written response.1

                                                  Analysis

       Tennessee Compilation Rules and Regulations 0800-02-21-.14(3) (2015), or Rule
.14(3), provides that, when 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 which, by definition, is tied to a procedure—an Expedited Hearing—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 for summary judgment) provided
for in the Tennessee Rules of Civil Procedure. For that reason, the Court finds that a
Rule .14(3) motion to dismiss is an alternate procedure as contemplated by Tennessee
Code Annotated section 50-6-239(c)(1) (2015), and that the standards and procedures
applied to motions to dismiss or motions for summary judgment under the Tennessee
Rules of Civil Procedure do not govern the determination of a Rule .14(3) motion.

       Essentially, Rule .14(3) provides a procedural mechanism by which an employer
can force an injured worker to address the evidentiary inadequacies that resulted in the
adverse decision at the Expedited Hearing. If, in response to the employer’s Rule .14(3)

1
  In its December 14, 2015 Continuance Order, this Court noted that Choice Foods’ motion would be heard via
teleconference on January 5, 2016. Choice Foods also included a notice of hearing containing instructions on how
to participate in the teleconference in its motion. The notice erroneously listed the hearing date as “January 5,
2015.”

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motion, the injured worker does not resolve the evidentiary inadequacies in his or her
claim or articulate a clear intent and method to do so, the Court may dismiss the injured
worker’s claim.

       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. In this case, while the
Court did not make an explicit finding in its Expedited Hearing Order that Mr. Syph’s
claim failed on the grounds of compensability, the Court’s findings and conclusions of
law accomplished the same effect.

       Specifically, the Court began its analysis by explaining that an injury “must arise
primarily out of and in the course and scope of employment.” This Court further stated
that proving compensability of a back injury required expert medical evidence. At the
time of the hearing, Dr. Melvin Law, the authorized treating physician, opined he could
not say within a reasonable degree of medical certainty whether Ms. Syph “suffered a
new injury [or] . . . an exaggeration of her preexisting condition given that we have an
inaccurate history.” Pursuant to Tennessee Code Annotated section 50-6-102(13)(E)
(2015), his opinion carries a presumption of correctness that can only be overcome by the
presentation of contradictory expert medical proof. Because Ms. Syph presented no
contradictory expert medical proof, the Court found she “cannot show that she suffered a
compensable injury. Without an opinion linking her back condition to her work for
Choice Foods, Ms. Syoh is unlikely to prevail at a hearing on the merits.” While
imprecisely worded, the effect is that the Court denied the claim on compensability
grounds. To conclude otherwise would be an exercise of form over substance. See Silas
v. Brock Services, No. 2014-02-0013, 2015 TN Wrk. Comp. App. Bd. 35, at *9 (Tenn.
Workers’ Comp. App. Bd. Oct. 2, 2015).

        As stated above, Choice Food’s Rule .14(3) motion forced Ms. Syph to address the
evidentiary inadequacies brought to light during the Expedited Hearing. To accomplish
this, Ms. Syph needed to either produce an expert opinion to contradict Dr. Law or
demonstrate a clear intent to do so. Ms. Syph did neither. Following the Expedited
Hearing, the Court set this claim for an initial (scheduling) hearing to develop a discovery
order. Ms. Syph did not attend the initial hearing. After she failed to attend, the Court
continued the initial hearing pending a decision on Choice Foods’ motion. Ms. Syph,
however, failed to respond to Choice Foods’ motion or participate in the motion hearing.
Accordingly, this Court does not know whether Ms. Syph has obtained a contrary opinion
to refute Dr. Law’s causation opinion. The Court does, however, know that Ms. Syph
failed to demonstrate intent to present a contrary opinion.

       This Court acknowledges that, “Tennessee Court have long expressed a preference
for deciding cases on the merits.” Smith v. The Newman Grp., LLC, No. 2015-08-0075,
2015 TN Wrk. Comp. App. Bd. LEXIS 30, at *9 (Tenn. Workers’ Comp. App. Bd. Sept.
21, 2015.) At the same time, the general assembly emphasized “efficiency and timeliness

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in the 2013 Workers’ Compensation Reform Act.” Id. In addition, “trial courts have
been charged with controlling the pace of litigation through the use of supervision and
docket management which will ensure efficient disposition of civil cases.” Id.

       In applying these principles, this Court concludes that it decided Ms. Syph’s case
on the merits at the Expedited Hearing. Based upon Ms. Syph’s failure to articulate a
clear intent to produce a contrary causation opinion that could alter the Court’s original
conclusions, that outcome is unlikely to change at a Compensation Hearing. In keeping
with the lawmakers’ intent when they enacted the 2013 reforms, and in exercising this
Court’s charge to control the pace of litigation and docket management to ensure the
efficient disposition of cases, the Court finds it appropriate to dismiss Ms. Syph’s claim.

       Finally, Rule .14(3) is silent regarding whether a dismissal should with or without
prejudice. The Court finds that Ms. Syph received a full and fair opportunity to present
her case, but nonetheless failed to meet her burden. Furthermore, because Ms. Syph
declined to participate in proceedings following the Expedited Hearing, it 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 Ms. Syph to re-file her claim and force
Choice Foods to make the very same arguments, expending additional time and
resources. For this reason, and for the sake of judicial economy, the Court dismisses Ms.
Syph’s claim with prejudice.

       The Court assesses the filing fee to Choice Foods, for which execution may issue
as necessary.

IT IS SO ORDERED.

ENTERED ON THIS THE 13TH DAY OF JANUARY, 2016.


                                   _____________________________________
                                   Judge Joshua Davis Baker
                                   Court of Workers’ Compensation Claims




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Right to Appeal:

   Tennessee Law allows any party who disagrees with this Compensation 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. 0800-02-22-.01(1)(b) (2015).

   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. 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 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 request 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. 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 Expedited 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 (2015).

   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

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docketing notice shall be sent to the parties. Thereafter, the parties have fifteen
(15) calendar days to submit briefs to the Appeals Board for consideration. See
Tenn. Comp. R. & Regs. 0800-02-22-.02(3).




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                           CERTIFICATE OF SERVICE


       I hereby certify that a true and correct copy of the foregoing was sent to the
following recipients by the following methods of service on this the____day
                                                                    13th    of January,
2016.


 Name                     Certified   Via        Via    Service sent to:
                           Mail       Fax       Email
 Deborah Syph                X                          608 Lane Court
                                                        Nashville, TN 37207
 Michael Haynie                                  X      mhaynie@manierherod.com



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




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