             IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                             AT NASHVILLE

SARAH SANDERS,                               )   Docket No.: 2015-06-0017
              Employee,                      )
v.                                           )   State File No.: 2292-2015
REGIS CORP., D/B/A SMARTSTYLE,               )
              Employer,                      )   Date of Injury: December 30, 2014
and                                          )
SEDGWICK,                                    )   Judge Joshua Davis Baker
              Carrier/TPA.                   )
                                             )

                               ORDER OF DISMISSAL


       THIS CAUSE came before the undersigned Workers’ Compensation Judge on
August 27, 2015, for a hearing on the Motion to Dismiss filed by Regis Corp., d/b/a
Smartstyle (Smartstyle), the employer. The Court conducted the hearing by telephone.
Attorney Gary Siciliano represented Smartstyle. The employee, Sarah Sanders, did not
participate in the telephonic hearing and did not file a response opposing Smartstyle’s
motion.

                                 History of the Claim

       Mr. Sanders filed a Petition for Benefit Determination on January 13, 2015,
seeking medical benefits for an injury she incurred through a physical altercation with her
cousin-in-law that occurred during her shift at Smartstyle. On March 16, 2015, Ms.
Sanders filed a Request for Expedited Hearing. Following an in-person hearing, the
Court issued an Expedited Hearing Order on May 11, 2015, denying Ms. Sanders’
request for medical benefits. In the Order, the Court deemed Ms. Sanders’ claim
noncompensable, based on the Court’s finding that Ms. Sanders’ injury did not arise out
of her employment due to the purely private nature of the altercation.
                                            Issue

       Whether the Court should dismiss Ms. Sanders’ claim for workers’ compensation
benefits.

                                         Discussion

       Rule 0800-02-21-.14(3) (2014) of the Tennessee Compilation Rules and
Regulations 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.
The rule states 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. Id. Ms. Sanders did not file a response within the designated time period.

       Tennessee Code Annotated section 50-6-239(c)(1) (2014) provides that the
Tennessee Rules of Civil Procedure govern all procedures before the Court of Workers’
Compensation Claims, “unless an alternate procedural . . . rule has been adopted by the
administrator.” Section 50-6-239(c)(1) (2014) further provides that, “[w]henever the
administrator has adopted an alternate procedural . . . rule that conflicts with the
Tennessee Rules of Civil Procedure . . . the rule adopted by the administrator shall
apply.”

       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 section 50-6-239(c)(1) (2014), and that the determination of a Rule
.14(3) motion is not governed by the standards and procedures applied to motions to
dismiss or motions for summary judgment under the Tennessee Rules of Civil Procedure.

       By definition, a Rule .14(3) motion may be filed only after the Court denies a
claim on the grounds of compensability following an Expedited Hearing. Implicit in the
finding of noncompensability at the Expedited Hearing is a determination that the
evidence introduced at the Expedited Hearing did not establish that the injured worker
would likely prevail at a final Compensation Hearing. Tenn. Code Ann. § 50-6-239(d)(1)
(2014).

       That being the case, 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) motion, the injured worker does not resolve the evidentiary

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inadequacies in his or her claim or articulate a clear and present intent to do so, the
consequence is dismissal of the injured worker’s claim.

       Tennessee Code Annotated section 50-6-239(c)(6) (2014) provides that, “[a]t a
hearing the employee shall bear the burden of proving each and every element of the
claim[.]” Smartstyle’s Rule .14(3) motion brings before the Court the issue of whether
Ms. Sanders can carry her burden of proving that her injury arose primarily out of her
employment.

        At the Expedited Hearing, Ms. Sanders testified that her cousin-in-law entered
Smartstyle and began “acting out” by talking about religion, politics, and homosexuality.
Ms. Sanders instructed her cousin-in-law to leave the salon. The following day, her
cousin-in-law returned, and Ms. Sanders and the cousin-in-law got into a fight just
outside the doors of Smartstyle. Walmart’s security camera captured the incident. The
Court determined Ms. Sanders’ claim stemmed from a purely private dispute and deemed
her claim noncompensable for that reason. Subsequent to the Court’s ruling, Smartstyle
filed the Rule .14(3) motion.

       The Court heard Ms. Sanders’ testimony and, based on the factual scenario
presented, the Court finds that she cannot carry her burden of proof at a final
Compensation Hearing. Accordingly, the Court finds Smartstyle’s motion well-taken
and dismisses Ms. Sanders’ claim. Rule .14(3) does not mandate whether a dismissal
thereunder is with or without prejudice. In light of the foregoing, the Court dismisses
Ms. Sanders’ claim with prejudice to its refiling.

        IT IS, THEREFORE, ORDERED as follows:

   1.     Ms. Sanders claim for benefits under the Workers’ Compensation Law is
          dismissed with prejudice.

   2.     The Court assesses the $150 filing fee in this claim to Smartstyle and/or its
          workers’ compensation carrier pursuant to Rule 0800-02-21-.07 (2014) of the
          Tennessee Compilation Rules and Regulations. Smartstyle or its carrier shall
          promptly remit the filing fee to the Clerk of the Court of Workers’
          Compensation Claims.

   3.     Unless an appeal of is filed with the Workers’ Compensation Appeals
          Board or the Tennessee Supreme Court, this order shall become final in
          thirty days.




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ISSUED AND FILED WITH THE COURT OF WORKERS’ COMPENSATION
CLAIMS ON THE 1st DAY OF SEPTEMBER, 2015.




                                                ______________________________
                                                Joshua Davis Baker, Judge
                                                Court of Workers’ Compensation Claims


Right to Appeal:

Tennessee Law allows any party who disagrees with this Order of Dismissal 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) (2014).

   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. 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
calendar days to submit briefs to the Appeals Board for consideration. See Tenn.
Comp. R. & Regs. 0800-02-22-.02(3) (2014).




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                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Order of Dismissal was sent to
the following recipients by the following methods of service on this the 1st day of
September, 2015.

 Name                      Certified    Fax       Email   Service sent to:
                            Mail
 Sarah Sanders, Employee      X                           938 33rd Street
                                                          Nashville, Tennessee 37209
 Gerard Siciliano,                                 X      gms@lutheranderson.com
 Employer’s attorney


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




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