                                                                                  FILED
                                                                                Nov 15, 2019
                                                                                01:30 PM(CT)
                                                                                  TENNESSEE
                                                                             WORKERS' COMPENSATION
                                                                                APPEALS BOARD

             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD

Kevin Judy                                   )   Docket No. 2018-01-0756
                                             )
v.                                           )   State File No. 30496-2017
                                             )
Covenant Transport, Inc., et al.             )
                                             )
                                             )
Appeal from the Court of Workers’            )
Compensation Claims                          )
Audrey A. Headrick, Judge                    )

                            Affirmed and Certified as Final

The employee, a truck driver, alleged suffering work-related injuries to his wrists while
working for the employer, a trucking company. The employee admitted giving notice of
his alleged November 2016 work injuries in April 2017 and, further, admitted attending
an unauthorized medical evaluation for his wrists in February 2017. His petition for
benefits was filed in October 2018, which the employer claimed was more than one year
after its last voluntary payment of benefits. The trial court granted the employer’s motion
for summary judgment and dismissed the case as untimely. The employee has appealed.
We affirm the trial court’s decision and certify as final its order dismissing the case.

Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in
which Judge David F. Hensley joined. Judge Timothy W. Conner did not participate.

Kevin Judy, Orlando, Florida, employee-appellant, pro se

Gary Napolitan, Chattanooga, Tennessee, for the employer-appellee, Covenant Transport,
Inc.

                          Factual and Procedural Background

       Kevin Judy (“Employee”), a forty-nine-year-old resident of Orlando, Florida,
worked for Covenant Transport, Inc. (“Employer”), as a truck driver. On or about
November 25, 2016, his last day of employment with Employer, Employee allegedly
suffered pain in both wrists while driving. He did not report his purported injuries to
Employer until nearly five months later on April 19, 2017. In the interim, Employee was


                                            1
evaluated by his primary care provider in February 2017, at which time he complained of
pain in both wrists that he related to his work activities.

        Employer asserted it never paid for or authorized any medical treatment related to
Employee’s alleged wrist injuries, but did admit it paid two prescription bills
inadvertently, the last payment for which was issued on September 1, 2017. Employee
filed his petition for benefits more than one year later on October 23, 2018.

       Thereafter, Employer filed a motion for summary judgment, asserting that
Employee failed to provide timely notice of his claim and failed to file his petition within
the applicable limitations period. In support of its motion, Employer provided affidavits
from representatives of both Employer and Employer’s workers’ compensation
administrator, each of whom denied receiving notice of Employee’s claim prior to April
2017 and further denied paying any benefits after September 1, 2017.

        Employee filed a response admitting that he informed his primary care provider in
February 2017 that he believed his wrist pain was related to his work. He also admitted
reporting the claim to Employer on April 19, 2017. With respect to Employer’s assertion
that it last paid a medical bill on September 1, 2017, Employee argued his medical
providers had received payment for services related to his alleged work injury as late as
November 20, 2017, from a company called Unified Health Services. According to
Employee, his petition for benefits was filed within one year of the date of the last
payment for medical services and was thus timely. In response, Employer denied that it
had any relationship with a company called Unified Health Services.

       The trial court granted Employer’s motion for summary judgment and dismissed
the case. The court concluded Employer had successfully negated an essential element of
Employee’s claim in showing that the last voluntary payment of benefits occurred on
September 1, 2017, more than one year prior to the filing of Employee’s petition for
benefits. The court further concluded that Employee had not come forward with
sufficient evidence to create an issue of material fact regarding the timeliness of his
petition because there was no evidence that Unified Health Services acted as an agent for
Employer in issuing payments to Employee’s medical providers. Employee has
appealed.

                                   Standard of Review

       A motion for summary judgment should be granted when “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The
burden is on the party pursuing summary judgment to demonstrate both that no genuine
issue of material fact exists and that the moving party is entitled to a judgment as a matter

                                             2
of law. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008). If the moving
party makes a properly supported motion, the burden of production then shifts to the
nonmoving party to demonstrate the existence of a genuine issue of material fact. Rye v.
Women’s Care Ctr. of Memphis, PLLC, 477 S.W.3d 235, 265 (Tenn. 2015).

       A trial court’s ruling on a motion for summary judgment is reviewed de novo with
no presumption of correctness. Wallis v. Brainerd Baptist Church, 509 S.W.3d 886, 895
(Tenn. 2016). We are also 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

      Tennessee’s Workers’ Compensation Law sets out the limitations period in cases
where an employer has voluntarily provided workers’ compensation benefits as follows:

      In instances when the employer has voluntarily paid workers’
      compensation benefits, within one (1) year following the accident resulting
      in injury, the right to compensation is forever barred, unless a petition for
      benefit determination is filed with the bureau on a form prescribed by the
      administrator within one (1) year from the latter of the date of the last
      authorized treatment or the time the employer ceased to make payments of
      compensation to or on behalf of the employee.

Tenn. Code Ann. § 50-6-203(b)(2) (2019). In the present case, it is undisputed that
Employee’s alleged injury occurred on or about November 25, 2016, and that the petition
for benefits was filed on October 23, 2018. Consequently, unless Employer made a
voluntary payment of benefits within one year preceding the filing of the petition on
October 23, 2018, the petition is untimely and must be dismissed.

       Employer submitted affidavits from representatives of Employer and its workers’
compensation carrier stating that no payment was made on Employee’s claim after
September 1, 2017. Thus, Employer properly supported its motion for summary
judgment by coming forward with evidence that Employee’s petition was untimely.
Pursuant to Rule 56.06 of the Tennessee Rules of Civil Procedure, the burden of
production shifted to Employee to show there is a genuine issue of material fact as to the
timeliness of his petition. Employee submitted what purports to be a statement from his
medical provider documenting receipt of payments for medical services from April 20,
2017 through November 20, 2017. The statement further indicates that a payment was
received from Unified Health Services as late as April 13, 2018. Employee’s submission
falls short, however, of establishing any relationship between the purported payor,
Unified Health Services, and Employer or its workers’ compensation administrator.

                                            3
Employee submitted no evidence that Unified Health Services acted as an agent for
Employer or its workers’ compensation administrator. In short, there is no proof that
Employer or its workers’ compensation administrator issued a voluntary payment of
benefits on Employee’s claim after September 1, 2017.

       Like the trial court, we conclude Employee has not come forward with sufficient
evidence to create a genuine issue of material fact regarding the timeliness of his petition.
The evidence in the record supports the trial court’s conclusion that Employer last issued
a voluntary payment of benefits on September 1, 2017, and that Employee’s petition was
not filed until more than one year later. Accordingly, pursuant to Tennessee Code
Annotated section 50-6-203(b)(2), Employee’s petition was untimely. 1

                                              Conclusion

       For the foregoing reasons, the trial court’s order is affirmed and certified as final.
Costs on appeal are taxed to Employee.




1
 As a result of our determination on the timeliness issue, all other issues raised by Employee in his brief
and notice of appeal are pretermitted.

                                                    4
                 TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                   WORKERS’ COMPENSATION APPEALS BOARD

Kevin Judy                                            )      Docket No. 2018-01-0756
                                                      )
v.                                                    )      State File No. 30496-2017
                                                      )
Covenant Transport, Inc., et al.                      )
                                                      )
                                                      )
Appeal from the Court of Workers’                     )
Compensation Claims                                   )
Audrey A. Headrick, 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 15th day
of November, 2019.

 Name                              Certified   First Class   Via   Via     Sent to:
                                   Mail        Mail          Fax   Email
 Kevin Judy                                                          X     kevinsjudy@gmail.com
 Gary Napolitan                                                      X     gary.napolitan@leitnerfirm.com
 Lisa Sizemore                                                             lisa.sizemore@leitnerfirm.com
 Audrey A. Headrick, Judge                                           X     Via Electronic Mail
 Kenneth M. Switzer, Chief Judge                                     X     Via Electronic Mail
 Penny Shrum, Clerk, Court of                                        X     penny.patterson-shrum@tn.gov
 Workers’ Compensation Claims




JJeanette
  eanette 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
