            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD


David Raine                                  )   Docket No. 2015-06-0986
                                             )
v.                                           )
                                             )   State File No. 48420-2015
White Castle, et al.                         )
                                             )
                                             )
Appeal from the Court of Workers’            )
Compensation Claims                          )
Kenneth M. Switzer, Chief Judge              )


                   Affirmed and Remanded – Filed October 14, 2016

In this interlocutory appeal, the employee asserts he is entitled to temporary disability and
medical benefits for alleged injuries to his left shoulder. Following a review of the file,
the trial court issued an order denying the requested benefits, concluding the employee
had not come forward with sufficient evidence to show he is likely to prevail at a hearing
on the merits in establishing an injury arising primarily out of and in the course and scope
of his employment. The trial court further determined that the employee’s claim was not
filed within the applicable limitations period. The employee has appealed. We affirm the
trial court’s determination and remand the case.

Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Judge
Marshall L. Davidson, III, and Judge David F. Hensley joined.

David Raine, Nashville, Tennessee, employee-appellant, pro se

D. Brett Burrow, Nashville, Tennessee, for the employer-appellee, White Castle




                                             1
                                     Memorandum Opinion1

       David Raine (“Employee”), a resident of Davidson County, Tennessee, worked for
White Castle (“Employer”) as an auxiliary team member. He alleges that in late July or
early August 2014, he sustained an injury to his left shoulder while throwing a trash bag
into a dumpster. He further alleges that “around that same time,” he injured his right
knee by hitting it on a pallet.2 Employee sought medical treatment on his own and
eventually underwent surgery on his shoulder. He testified that he did not consider
whether his injury constituted a workers’ compensation claim until May 2015.

       The parties dispute whether Employee gave proper notice of his alleged injury.
However, it is undisputed that Employee filed his petition for benefit determination on
August 19, 2015. Moreover, Employer presented unrefuted proof that it paid no benefits
of any kind on Employee’s claim.

       Employee filed a request for expedited hearing, asking the court to issue an order
based on a review of the file with no in-person evidentiary hearing. See Tenn. Comp. R.
& Regs. 0800-02-21-.14(1)(c) (2015). Employer agreed that no evidentiary hearing was
necessary. As a result, after determining it needed no additional information, the trial
court reviewed all submitted materials and issued an expedited hearing order denying the
requested relief. The trial court determined that Employee had not come forward with
sufficient proof to show he is likely to prevail at a hearing on the merits in two respects:
(1) whether he suffered an injury by accident as that term is defined in Tennessee Code
Annotated section 50-6-102(14); and (2) whether Employee filed his claim within the
applicable limitations period. Employee has appealed.

        Employee raises three issues. First, he argues, in essence, that Employer’s alleged
failure to post the notices required by Tennessee Code Annotated section 50-6-407 bar it
from asserting a defense based on the statute of limitations. However, Employee cites no
authority, and we have found none, supporting the proposition that an employer’s
violation of section 50-6-407 results in an estoppel or constitutes a waiver of a statute of
limitations defense. Regardless of whether or not an employer has complied with this
statutory obligation, an injured worker is not excused from his or her responsibility to be
aware of or seek out information concerning the law. Tennessee law is clear that “mere
ignorance of the law will not serve as an excuse for a litigant’s error or omission.”
Mosby v. McDowell Ctr. for Children, No. W2012-02715-WC-R3-WC, 2014 Tenn.

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.
2
  In his position statement on appeal, Employee stated that he abandoned his knee injury claim.
Therefore, we will not address that claim.
                                                   2
LEXIS 707, at *18 (Tenn. Workers’ Comp. Panel Oct. 2, 2014). Furthermore, an
employee’s “unfamiliarity with workers’ compensation law and his ignorance of his
obligations thereunder, without any further explanation for his delay in notifying [his
employer] of his injury, is insufficient and not a reasonable basis for excusing his failure
to give the required notice.” Id. at *19.

        Second, Employee asserts that Employer failed to take appropriate action when he
first gave notice of his injury. In support of this argument, Employee cites as an example
another work-related injury he claims to have suffered after which Employer allegedly
failed to take appropriate action. Yet, this testimony was contained in affidavits
submitted by Employee and included in the materials reviewed by the trial court.
Employee has not suggested that the trial court failed to give this testimony appropriate
weight or that it erred in its weighing of the evidence. Employee has cited no authority to
support his argument and we are aware of none.

        Third, Employee argues that the testimony of a witness, Dustin Hessa, was
“tainted.” Mr. Hessa’s testimony came in the form of an affidavit that was considered by
the trial court along with other affidavits and deposition testimony, as well as numerous
other exhibits. However, even if the record contained evidence calling into question the
veracity of Mr. Hessa’s testimony, there is nothing in the trial court’s expedited hearing
order indicating that it relied on this testimony in resolving any issue. Instead, in denying
Employee’s request for benefits, the trial court expressly relied on Employee’s inability
to identify an accident by time and place of occurrence, as well as Employee’s failure to
file a petition for benefit determination within one year of his alleged injury.

       Under these circumstances, we have no difficulty finding that the trial court’s
determinations are supported by a preponderance of the evidence. We therefore affirm
the trial court’s order and remand the case for any further proceedings that may be
necessary.




                                             3
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

David Raine                                              )   Docket No.   2015-06-0986
                                                         )
v.                                                       )   State File No. 48420-2015
                                                         )
White Castle, et al.                                     )


                                     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 14th day of October, 2016.
 Name                    Certified   First Class   Via   Fax      Via     Email Address
                         Mail        Mail          Fax   Number   Email

 David Raine                                                        X     ilagosian@gmail.com
 D. Brett Burrow                                                    X     bburrow@burrowlee.com
 Kenneth M. Switzer,                                                X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




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