                  IN THE SUPREME COURT OF TENNESSEE
                             AT NASHVILLE
                                   June 13, 2012 Session

                        LACEY CHAPMAN v. DAVITA, INC.

          Appeal by Permission from the Circuit Court for Marshall County
                       No. 11-CV-30     F. Lee Russell, Judge


               No. M2011-02674-SC-R10-WC - Filed September 21, 2012


An employee filed a request for assistance with the Tennessee Department of Labor after she
was injured at her workplace. After approximately six months of inaction by the Department,
the employee filed a complaint for workers’ compensation benefits against her employer in
Marshall County Circuit Court. The employer responded with a motion to dismiss asserting
that the trial court lacked subject matter jurisdiction because the parties had not participated
in the benefit review conference process. The trial judge did not dismiss the complaint but
ordered the case to be held in abeyance pending further orders of the court. On extraordinary
appeal to this Court, we hold that the trial court did not have subject matter jurisdiction of
the case because the employee did not exhaust the benefit review conference process before
filing suit as required by Tennessee Code Annotated section 50-6-203 (2008). The judgment
of the trial court is reversed, and the employee’s complaint is dismissed without prejudice.

 Tenn. R. App. P. 10 Extraordinary Appeal by Permission; Judgment of the Circuit
                         Court Reversed; Cause Dismissed

S HARON G. L EE, J., delivered the opinion of the Court, in which C ORNELIA A. C LARK, C.J.,
AND J ANICE M. H OLDER, G ARY R. W ADE, and W ILLIAM C. K OCH, J R., JJ., joined.


Stephen W. Elliott, Nashville, Tennessee, for the appellant, DaVita, Inc.

Barbara G. Medley, Lewisburg, Tennessee, for the appellee, Lacey Chapman.

                                          OPINION

       On June 3, 2010, Lacey Chapman, an employee of DaVita, Inc. (“DaVita”), fell and
injured her elbow as she entered DaVita’s building. Her lawyer filed a request for assistance
with the Tennessee Department of Labor (“TDOL”), which TDOL received on September
21, 2010. On January 28, 2011, her lawyer wrote to the TDOL specialist assigned to the case
and inquired about the status of the claim. On March 17, 2011, after waiting approximately
six months for TDOL to act, Ms. Chapman filed a workers’ compensation complaint against
DaVita in the Marshall County Circuit Court. DaVita filed a motion to dismiss for lack of
subject matter jurisdiction, asserting that Ms. Chapman had failed to exhaust the benefit
review conference process before filing suit as required by Tennessee Code Annotated
section 50-6-203(a). The trial court denied the motion to dismiss and ordered that all matters
in the case be held in abeyance pending further orders of the court. The trial court noted in
its order that on May 5, 2011, one day before the hearing on the motion to dismiss, the parties
had received a benefit review report from TDOL ordering medical treatment for Ms.
Chapman. DaVita filed a motion for interlocutory appeal pursuant to Rule 9 of the
Tennessee Rules of Appellate Procedure, which the trial court denied. We granted DaVita’s
Rule 10 application for extraordinary appeal.

        The issue we address is whether a trial court has subject matter jurisdiction to hear a
workers’ compensation case in which the plaintiff employee requested TDOL assistance,
TDOL did not act, and the plaintiff filed suit without exhausting the benefit review
conference process. We hold that a trial court does not have subject matter jurisdiction of
a workers’ compensation case until the plaintiff employee has exhausted the benefit review
conference process. The failure of TDOL to respond to a request for assistance does not
excuse the employee from complying with the benefit review conference process before
filing suit.

        Our standard of review in this extraordinary appeal is the same standard that would
have been applied to the issue in an appeal as of right. Peck v. Tanner, 181 S.W.3d 262, 265
(Tenn. 2005) (citing State v. Moore, 775 S.W.2d 372, 374 (Tenn. Crim. App.
1989)). Tennessee Rule of Civil Procedure 12.02(1) governs a motion to dismiss for lack of
subject matter jurisdiction. Subject matter jurisdiction involves a court’s lawful authority to
adjudicate a controversy brought before it. See Meighan v. U.S. Sprint Commc’ns Co., 924
S.W.2d 632, 639 (Tenn. 1996); Standard Sur. & Cas. Co. v. Sloan, 173 S.W.2d 436, 440
(Tenn. 1943). Subject matter jurisdiction depends on the nature of the cause of action and
the relief sought, see Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994), and can only be
conferred on a court by the constitution or a legislative act. See Kane v. Kane, 547 S.W.2d
559, 560 (Tenn. 1977); Computer Shoppe, Inc. v. State, 780 S.W.2d 729, 734 (Tenn. Ct.
App. 1989). Where subject matter jurisdiction is challenged under Rule 12.02(1), the party
asserting that subject matter jurisdiction exists, which in this case is Ms. Chapman, has the
burden of proof. See Redwing v. Catholic Bishop for the Diocese of Memphis, 363 S.W.3d
436, 445 (Tenn. 2012) (citing Staats v. McKinnon, 206 S.W.3d 532, 543 (Tenn. Ct. App.
2006)). “Since a determination of whether subject matter jurisdiction exists is a question of
law, our standard of review is de novo, without a presumption of correctness.” Northland
Ins. Co. v. State, 33 S.W.3d 727,729 (Tenn. 2000).

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       Tennessee Code Annotated section 50-6-203(a) provides that “[n]o claim for
compensation under this chapter shall be filed . . . until the parties have exhausted the benefit
review conference process provided by the division of workers’ compensation.” Tenn. Code
Ann. § 50-6-203 (2008). The benefit review conference process is statutorily described as:

                (a)(1) Notwithstanding any provisions of this chapter to the contrary,
                in case of a dispute over or failure to agree upon compensation under
                this chapter, between the employer and employee or the dependent or
                dependents of the employee, the parties shall first submit the dispute to
                the benefit review conference process provided by the division of
                workers’ compensation.

                (2)(A) In the event the parties are unable to reach an agreement at the
                benefit review conference as to all issues related to the claim or the
                benefit review conference process is otherwise exhausted pursuant to
                rules promulgated by the commissioner, either party may file a civil
                action as provided in § 50-6-203 in the circuit or chancery court in the
                county in which the employee resides or in which the alleged injury
                occurred.

Tenn. Code Ann. § 50-6-225 (emphasis added).1

TDOL rules, promulgated pursuant to section 50-6-225, provide only five ways in which the
benefit review conference is “otherwise exhausted” prior to its completion:

        (a) Issuance of a Benefit Review Report which indicates an Order Denying
        Benefits based upon non-compensability of the claim has been issued by a
        Workers’ Compensation Specialist . . . [;]

        (b) Reaching a mediated settlement, as evidenced by a signed document
        executed by the proper parties and the Workers’ Compensation Specialist;

        (c) Issuance of an impasse report signed and dated by a Workers’
        Compensation Specialist[;]




        1
          On May 21, 2012, this section of the code was amended to replace the word “resides” with “resided
at the time of the alleged injury.” 2012 Tenn. Pub. Acts 1030.


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        (d) Conducting and completing mediation by private Rule 31 mediator,
        provided the Department has failed to conduct a [benefit review conference]
        within 60 days of receipt of such a request, pursuant to Tenn. Code Ann. § 50-
        6-239(c);

        (e) Issuance of a written waiver signed by the Director of the Benefit Review
        Program or the Director’s designee[.]

Tenn. Comp. R. & Regs. 0800-2-5-.09(1) (2006).

       Ms. Chapman’s cause of action was not ripe for judicial review when she filed her
lawsuit in the circuit court. Ms. Chapman filed a request for assistance with TDOL pursuant
to Tennessee Code Annotated section 50-6-238.2 When TDOL failed to act promptly, Ms.
Chapman bypassed the benefit review conference process and went straight to the trial
court. She neither commenced nor completed the benefit review conference process.

        Ms. Chapman argues that the workers’ compensation act is a remedial statute and
should be equitably construed by the court, see Tennessee Code Annotated section 50-6-116,
and that her administrative remedies were effectively exhausted due to the long period of
inaction of the TDOL. We agree that the Workers’ Compensation Act is remedial and should
be equitably construed, but there is no ambiguity in the statute which would allow the court
to interpret it in Ms. Chapman’s favor. Ms. Chapman relies on Coe v. City of Sevierville,
21 S.W.3d 237 (Tenn. Ct. App. 2000), wherein a petitioner who filed a complaint for a
declaratory judgment to obtain a permit from the city allowing her to demolish and rebuild
an advertising display was not required to exhaust her administrative remedies. When she
filed the declaratory judgment action, she had not applied for the permit because a city
representative had told her that the permit would not be granted. Id. at 239. At a hearing on
the declaratory judgment action, the city argued that the petitioner’s complaint should be
dismissed for failure to exhaust her administrative remedies. Id. The trial court suggested
that the petitioner file an application with the city to obtain the desired permit and held the
judicial proceedings in abeyance pending the resolution of the permit application. Id. at 239-
40. The petitioner submitted an application for the permit, but the city refused to address the
application until the conclusion of the pending litigation. Id. at 240. At that point, the trial



        2
          Pursuant to this statute, a party may request the assistance of a workers’ compensation specialist
to determine if temporary disability or medical benefits are appropriate. A specialist assigned to the case
obtains relevant medical records and other information and, thereafter, independently determines whether
temporary disability or medical benefits are appropriate. Tenn. Code Ann. § 50-6-238(a)(5)-(6). Upon
determining that such benefits are appropriate, the specialist may order that an employer or workers’
compensation insurer begin, continue, or recommence the benefits. Tenn. Code Ann. § 50-6-238(a)(2)-(3).

                                                    -4-
court determined that the petitioner had effectively exhausted her administrative remedies
because of the city’s refusal to act. The city appealed, and the Court of Appeals affirmed.

        Ms. Chapman’s reliance on Coe is misplaced because Coe is factually
distinguishable. First, in Coe, the petitioner sued the administrative body responsible for
approving or disapproving the petitioner’s permit. Here, TDOL is not a defendant and the
parties are both private parties; DaVita has no control over TDOL's processing of Ms.
Chapman’s request for assistance. Second, in Coe, the administrative body decided not to
act on the petitioner’s permit application until after the conclusion of the pending
litigation. Here, TDOL never indicated to Ms. Chapman that it was refusing to act. In fact,
TDOL eventually granted Ms. Chapman’s request for assistance.

        In the case before us, there is clear legislative intent that the administrative process
cannot be circumvented and must be exhausted. In construing a statute, we must “ascertain
and give effect to the legislative intent without unduly restricting or expanding a statute’s
coverage beyond its intended scope.” State v. Strode, 232 S.W.3d 1, 9 (Tenn. 2007) (quoting
Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002)). Legislative intent
is determined from “the natural and ordinary meaning of the statutory language within the
context of the entire statute without any forced or subtle construction that would extend or
limit the statute’s meaning.” Id. (internal quotation marks omitted). If the statutory language
is clear and unambiguous, we apply the statute’s plain language in its normal and accepted
use. Id.

       The use of the word ?shall” in sections 50-6-203(a) and 50-6-225(a)(1) clearly
indicates the legislature’s intention that exhaustion of the benefit review conference process
is a mandatory prerequisite to filing a cause of action. See Bellamy v. Cracker Barrel Old
Country Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009) (“When ‘shall’ is used . . . it is
ordinarily construed as being mandatory and not discretionary.” (quoting Stubbs v. State, 393
S.W.2d 150, 154 (Tenn. 1965)). And this Court has consistently and unequivocally
interpreted the Tennessee workers’ compensation statutes at issue as mandating the
exhaustion of the administrative process before suit is filed.3 In Lynch v. City of Jellico, 205
S.W.3d 384, 390-91 (Tenn. 2006), we held: “As part of the Workers’ Compensation Reform
Act of 2004, the legislature decided that parties having a workers’ compensation dispute over
injuries occurring after January 1, 2005, must exhaust an administrative process, called a
benefit review conference, before filing suit.” Additionally, in West v. Vought Aircraft


       3
          Workers’ compensation appeals panels have reached the same conclusion. See, e.g., Robertson v.
Roadway Express, No. E2011-01384-WC-R3-WC, 2012 WL 2054170, at *7 (Tenn. Workers’ Comp. Panel
June 8, 2012); Holland Grp. v. Sotherland, No. M2008-00620-WC-R3-WC, 2009 WL 1099275, at *2 (Tenn.
Workers’ Comp. Panel Apr. 24, 2009); S. Cellulose Prods. v. DeFriese, No. E2008-00814-WC-R3-WC, 2009
WL 152313, at *6 (Tenn. Workers’ Comp. Panel Jan. 22, 2009).

                                                  -5-
Indus., Inc., 256 S.W.3d 618, 622 (Tenn. 2008), we held that “the Workers’ Compensation
Law now provides a definitive moment when a complaint can be filed—the moment the
benefit review conference is concluded without a settlement.”

       A trial court does not obtain subject matter jurisdiction of a workers’ compensation
case until the benefit review conference process has been exhausted. Our decision should
not be construed to condone unreasonable delays by TDOL in handling claims. The
accelerated appeal provided by Tennessee Code Annotated section 50-6-238(d)(1)-(2)
indicates that the legislature intended an expeditious process. TDOL should respond to a
request for assistance within a reasonable period of time; in this case it failed to do so. Ms.
Chapman, however, had alternatives other than filing suit to prompt TDOL to act, including
additional contact with the specialist, contact with the Administration of the Division of
Workers Compensation, or, as a last resort, filing a mandamus action.

       The trial court erred by failing to dismiss Ms. Chapman’s complaint for lack of subject
matter jurisdiction. Ms. Chapman’s complaint is dismissed without prejudice. Costs of this
appeal are taxed to Lacey Chapman, for which execution may issue, if necessary.




                                           SHARON G. LEE, JUSTICE




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