                                                                                              FILED
                                                                                            Jan 24, 2020
                                                                                           12:26 PM(CT)
                                                                                            TENNESSEE
                                                                                       WORKERS' COMPENSATION
                                                                                          APPEALS BOARD

             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD

Sylvester Andrews                                  ) Docket No. 2018-03-0413
                                                   )
v.                                                 ) State File No. 9633-2018
                                                   )
Custom Foods of America, Inc., et al.              )
                                                   )
                                                   )
Appeal from the Court of Workers’                  )
Compensation Claims                                )
Robert V. Durham, Judge                            )

                                    Affirmed and Remanded

In this interlocutory appeal, the employer questions the trial court’s decision denying the
employer’s motion to dismiss for failure to prosecute. After significant delays on the part
of the employee in taking action on his claim, the employer asked that the case be
dismissed. The trial court declined, finding the employee had presented sufficient
information to indicate that he intended to pursue his claim. The employer has appealed.
We affirm the trial court’s decision and remand the case.

Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner joined. Judge Pele I. Godkin did not participate.

Cole B. Stinson, Lansing, Michigan, for the employer-appellant, Custom Foods of
America, Inc.

Sylvester Andrews, Knoxville, Tennessee, employee-appellee, pro se

                                     Memorandum Opinion 1

      Sylvester Andrews (“Employee”) alleged he suffered injuries arising out of and in
the course and scope of his employment with Custom Foods of America, Inc.



1
 “The Appeals Board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the Appeals Board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Appeals Bd. Prac. & Proc. § 1.3.
                                                   1
(“Employer”). 2 On March 26, 2019, he filed a petition seeking benefits in which he
requested Employer to provide medical care for injuries allegedly caused by his
employment. The parties engaged in unsuccessful mediation, and a dispute certification
notice was issued on July 1, 2019.

        On September 4, 2019, the trial court issued a show cause order due to
Employee’s failure to file a request for a hearing consistent with Tenn. Comp. R. & Regs.
0800-02-21-.11(1) (2019), which provides that “either party may file a request for
expedited hearing or request for scheduling hearing.” The regulation further provides
that “[i]f no request for hearing is filed within sixty (60) days after the dispute
certification notice is filed, the clerk will set a show-cause hearing.” Id. The show cause
hearing was held on September 18, 2019, and the trial court issued an order the following
day noting that Employee indicated he was unaware he needed to file a request for a
hearing and did not understand the process. Finding Employee provided sufficient
indication that he wanted to pursue his case, the trial court declined to dismiss the case
and stated in its order that Employee must file a request for a hearing on or before
October 2, 2019, or his claim would be “subject to dismissal.” The court’s order also
provided the contact information for the Bureau of Workers’ Compensation’s
Ombudsman’s office.

       On October 23, 2019, Employer filed a motion to dismiss, noting that, as of that
date, Employee had not filed a request for a hearing despite being ordered by the trial
court to do so. Employer maintained Employee had been given sufficient time to pursue
his claim but had not done so and asserted the case should be dismissed with prejudice.
Employee filed a request for expedited hearing on October 28 along with an affidavit that
included Employee’s assertions as to why he needed additional medical care. The trial
court convened a hearing at which Employee explained he did not receive the trial court’s
order instructing him to file a request for a hearing because the email had gone to his
“trash” folder. He also asserted he was waiting on “documentation to complete” from the
Bureau.

       On October 30, 2019, the court issued an order denying Employer’s motion to
dismiss. The court apparently gave credence to Employee’s assertions that he had not
received the email containing the court’s prior order because it had been directed to his
“trash” file. The court also noted that Employee filed a request for hearing when he
received Employer’s motion to dismiss. For these reasons, the court declined to dismiss
Employee’s claim. Employer has appealed.



2
  There has been no hearing at which testimony was given or documents were admitted into evidence.
There is no information in the record before us addressing the mechanism of Employee’s alleged work-
related accident, the nature of the alleged injuries, or what treatment may be reasonable and necessary.
However, such facts are not determinative of this appeal.
                                                   2
        As an initial matter, we note that in Employer’s brief on appeal, Employer cites
Tennessee Code Annotated section 50-6-217(a)(3) (2016) (repealed 2017) in support of
its argument that the trial court’s decision should be reversed. Section 50-6-217(a)(3)
authorized us to reverse or modify a trial court’s decision if the rights of a party were
prejudiced because the findings of the trial judge were “not supported by evidence that is
both substantial and material in light of the entire record.” However, as we have
observed on numerous occasions, this code section was repealed effective May 9, 2017. 3
Consequently, the standard we apply in reviewing the trial court’s decision presumes that
the trial judge’s factual findings are correct unless the preponderance of the evidence is
otherwise. Tenn. Code Ann. § 50-6-239(c)(7) (2019).

        Turning to the merits of Employer’s appeal, Employer asserts the trial court
abused its discretion in declining to dismiss Employee’s claim. An abuse of discretion
occurs when the trial court causes an injustice by applying an incorrect legal standard,
reaches an illogical result, resolves the case on a clearly erroneous assessment of the
evidence, or relies on reasoning that causes an injustice. Gonsewski v. Gonsewski, 350
S.W.3d 99, 105 (Tenn. 2011). Pursuant to this standard, “the appellate court should
presume the decision is correct and should review the evidence in the light most
favorable to the decision.” Id. at 105-06. Although it is unclear from the record, it
appears Employer is asserting that the trial court relied on reasoning that caused an
injustice. We disagree.

       As we have said on prior occasions, “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. While we are mindful of the
general assembly’s emphasis on efficiency and timeliness in the 2013 Workers’
Compensation Reform Act, we conclude that allowing a trial court to exercise discretion

3
 See, Goodwin v. Morristown Driver’s Services, Inc., No. 2017-03-1235, 2019 TN Wrk. Comp. App. Bd.
LEXIS 37, at *6-7 (Tenn. Workers’ Comp. App. Bd. July 31, 2019); McLaurin v. AT&T Services, LLC,
No. 2017-03-1133, 2019 TN Wrk. Comp. App. Bd. LEXIS 6, at *4-5 (Tenn. Workers’ Comp. App. Bd.
Jan. 31, 2019); Bullard v. Facilities Performance Grp., No. 2017-08-1053, 2018 TN Wrk. Comp. App.
Bd. LEXIS 37, at *5 (Tenn. Workers’ Comp. App. Bd. Aug. 7, 2018); Ledford v. Mid-Georgia Courier,
Inc., No. 2017-01-0740, 2018 TN Wrk. Comp. App. Bd. LEXIS 28, at *4 (Tenn. Workers’ Comp. App.
Bd. June 4, 2018); Duignan v. Stowers Machinery Corp., No. 2017-03-0080, 2018 TN. Wrk. Comp. App.
Bd. LEXIS 25, at *8-9 (Tenn. Workers’ Comp. App. Bd. May 29, 2018); Ogden v. McMinnville Tool &
Die, No. 2016-05-1093, 2018 TN Wrk. Comp. App. Bd. LEXIS 14, at *9-10 (Tenn. Workers’ Comp.
App. Bd. May 7, 2018); Edwards v. Fred’s Pharmacy, No. 2017-06-0526, 2018 TN Wrk. Comp. App.
Bd. LEXIS 9, at *5-6 (Tenn. Workers’ Comp. App. Bd. Feb. 14, 2018); Bowlin v. Servall, LLC, No.
2017-07-0224, 2018 TN Wrk. Comp. App. Bd. LEXIS 6, at *6-7 (Tenn. Workers’ Comp. App. Bd. Feb.
8, 2018); Thompson v. Comcast Corp., No. 2017-05-0639, 2018 TN Wrk. Comp. App. Bd. LEXIS 1, at
*12-13 (Tenn. Workers’ Comp. App. Bd. Jan. 30, 2018); Baker v. Electrolux, No. 2017-06-0070, 2017
TN Wrk. Comp. App. Bd. LEXIS 65, at *5-6 (Tenn. Workers’ Comp. App. Bd. Oct. 20, 2017); Butler v.
AAA Cooper Transp., No. 2016-07-0459, 2017 TN Wrk. Comp. App. Bd. LEXIS 54, at *5-6 (Tenn.
Workers’ Comp. App. Bd. Sept. 12, 2017); Glasgow v. 31-W Insulation Co., Inc., No. 2017-05-0225,
2017 TN Wrk. Comp. App. Bd. LEXIS 51, at *11-12 (Tenn. Workers’ Comp. App. Bd. Sept. 6, 2017).
                                                3
in controlling the pace of litigation and in efficiently disposing of its cases does not run
afoul of these objectives.” 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) (citations omitted). As we also observed, dismissals are drastic measures and are,
generally, disfavored, as it is preferable to decide disputes on their merits rather than on
technicalities. Id. at *10.

       Here, as in Smith, the trial court convened a hearing on Employer’s motion to
dismiss for failure to prosecute, heard arguments from Employer and Employee, and
concluded Employee had presented sufficient information indicating his intent to pursue
his claim such that dismissal was inappropriate. Under these circumstances, we cannot
conclude the trial court abused its discretion.

       We affirm the decision of the trial court and remand the case. Costs on appeal are
taxed to Employer.




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

Sylvester Andrews                                     )      Docket No. 2018-03-0413
                                                      )
v.                                                    )      State File No. 9633-2018
                                                      )
Custom Foods of America, Inc., et al.                 )
                                                      )
                                                      )
Appeal from the Court of Workers’                     )
Compensation Claims                                   )
Robert V. Durham, 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 24th day
of January, 2020.


 Name                              Certified   First Class   Via   Via     Sent to:
                                   Mail        Mail          Fax   Email
 Sylvester C. Andrews                                                X     kingsylvesterrecords@gmail.com
 Cole B. Stinson                                                     X     cole.stinson@accidentfund.com
 Rosemary Marlatt                                                          rosemary.marlatt@accidentfund.com
 Lindsay Hall                                                        X     lindsay.n.hall@tn.gov
 Robert V. Durham, 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




Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov
