          IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                         AT MURFREESBORO

ANTHONY JONES,                                )   Docket No.: 2015-05-0427
         Employee,                            )
v.                                            )   State File Number: 77314-2015
TROJAN LABOR OF NASHVILLE,                    )
LLC                                           )
         Employer.                            )   Judge Dale Tipps
                                              )

                    ORDER GRANTING MOTION TO DISMISS


       THIS CAUSE came before the undersigned Workers’ Compensation Judge on
April 7, 2016, for a telephonic hearing on the Motion to Dismiss pursuant to Tennessee
Compilation Rules and Regulations Rule 0800-02-21-.14(3) (2015) filed February 1,
2016, by the Employer, Trojan Labor of Nashville, LLC. The central legal issue is
whether the Employee, Anthony Jones, has resolved the evidentiary inadequacies in his
claim or articulated a clear intent and method to do so. For the reasons set forth below,
the Court finds Trojan’s motion is well-taken and dismisses Mr. Jones’ claim.

                                     History of Claim

       Mr. Jones filed a Petition for Benefit Determination seeking medical benefits for
injuries he allegedly suffered on September 16, 2015, while working for Trojan.
Specifically, he alleged he injured his back and right shoulder on that date while lifting an
oven. The central issue for adjudication at the Expedited Hearing was whether Mr. Jones
was likely to establish at a hearing on the merits that he suffered an injury arising
primarily out of and in the course and scope of his employment. In the resulting
Expedited Hearing Order Denying Requested Benefits, this Court concluded he had not
met the burden of establishing that likelihood.

       Based largely on a credibility determination, the Court entered an Order on
January 21, 2016, finding Mr. Jones did not present sufficient proof to establish the
occurrence of a specific lifting injury on September 16, 2015. Trojan sought dismissal of
this claim because Mr. Jones did not introduce sufficient evidence to prevail at the
Expedited Hearing and did not appeal the Court’s findings.

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                       Findings of Fact and Conclusions of Law

       Rule 14(3) 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.
Rule .14(3) provides a procedural mechanism for the potential dismissal of a workers’
compensation claim 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.
Therefore, the Court finds that a Rule .14(3) motion to dismiss is an alternate procedure
as contemplated by Tennessee Code Annotated section 50-6-239(c)(1) (2015), and the
standards and procedures applied to motions to dismiss or for summary judgment under
the Tennessee Rules of Civil Procedure do not govern the determination of a Rule .14(3)
motion.

       A party may only file a Rule .14(3) motion after the Court conducts an Expedited
Hearing and denies the claim on the grounds of compensability. When denying relief at
an Expedited Hearing, the Court must find that the employee would be unlikely to prevail
at a hearing on the merits. 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 the employee to address the evidentiary inadequacies that resulted in
the adverse decision at the Expedited Hearing. Therefore, Trojan’s Rule .14(3) motion
forced Mr. Jones to address his evidentiary inadequacies by either producing evidence
that his injury arose primarily out of and in the course and scope of his employment, or
by articulating a clear intent and method to do so.

       Although Mr. Jones filed a response to Trojan’s motion, he did not identify any
new evidence likely to establish his injuries arose out of and in the course and scope of
his employment. Further, Mr. Jones failed to meet the second prong of the Rule .14(3)
analysis. He identified no method for producing the necessary evidence or any intent to
do so in his written response. Mr. Jones’ only mention of any additional proof during the
motion hearing was his attorney’s statement that, “there may be additional proof – who
knows?” The Court finds this is insufficient to constitute a clear intent and method of
adducing the necessary additional proof. Dismissal is thus appropriate.

       Mr. Jones first contends dismissal is improper because the Court’s January 21,
2016 Order denying benefits made no explicit finding on the issue of compensability. He
notes the Court’s finding that “Mr. Jones has not come forward with sufficient evidence
from which this Court can conclude he is likely to prevail at a hearing on the merits. Mr.
Jones’ request for medical and temporary disability benefits is denied at this time.” Mr.
Jones argues the Court’s use of “at this time” and its scheduling an initial hearing indicate
that the Court’s expectation that the claim would continue. He contends that, “if the

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Court intended the Order as a denial based upon compensability, there would be express
language to that effect sufficient to put the employee on notice of that important fact.”

        Mr. Jones is correct that the Court’s Order of January 21, 2016, did not expressly
state is the denial is “based upon compensability.” However, the Court’s findings and
conclusions of law accomplished the same effect. The Order clearly states:

          After carefully reviewing the testimony and exhibits, the Court cannot
          credit Mr. Jones’ claim of a specific lifting injury on September 18, 2015.
          Accordingly, Mr. Jones has not shown he is likely to prevail at a hearing on
          the merits that his injuries arose primarily out of or in the course and scope
          of his employment as required by Tennessee Code Annotated section 50-6-
          102(14) (2015).

Tennessee Code Annotated section 50-6-102(14) (2015) provides, in part, an injury is
compensable “only if the injury is caused by a specific incident, or set of incidents,
arising primarily out of and in the course and scope of employment.” The fact that the
Court found Mr. Jones unlikely to prove a specific incident means he did not establish
that his work caused his injury. An injury that is not work-related, by definition, is not
compensable. Thus, the Court’s denial of Mr. Jones’ claim because he failed to prove it
work-related was a finding based upon compensability. To conclude otherwise would be
an exercise of form over substance. See Silas v. Brock Services, No. 2014-02-0013, 2015
TN Wrk. Comp. App. Bd. 35, at *9 (Tenn. Workers’ Comp. App. Bd. Oct. 2, 2015).

      Mr. Jones next cites Tennessee Code Annotated section 50-6-239(d)(4), which
provides:

          If a motion for temporary disability or medical benefits is denied on the
          basis that the claim is not compensable, the proceeding shall continue
          according to the procedure provided in subsection (c) unless the employee
          files a request for an appeal to the workers’ compensation appeals board.
          At any time after the employee has exhausted the procedures for seeking an
          appeal from the workers’ compensation appeals board, as provided in this
          chapter, the workers’ compensation judge may entertain an appropriate
          motion from the employer for dismissal of the claim.

Mr. Jones notes the Court may entertain a motion to dismiss only “after the employee has
exhausted the procedures for seeking an appeal from the workers’ compensation appeals
board.” He argues that, since he filed no appeal in this case, he never exhausted the
procedures for seeking an appeal. Therefore, he contends section 50-6-239(d)(4)
precludes a motion to dismiss at this stage of the claim.1

1
    Mr. Jones’ arguments are premised in part on his contention that he is entitled to liberal construction of the

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        Mr. Jones’ argument, while creative, is unpersuasive. Section 50-6-239(d)(4) does
not specifically preclude dismissal in cases where no appeal is taken. Instead, it merely
requires that an employer must wait until the conclusion of any appeal before moving for
dismissal. The most impartial and straightforward interpretation of “exhausting the
procedures for seeking an appeal” includes the failure to file a timely appeal. See Silas v.
Brock Services, No. 2014-02-0013, 2015 TN Wrk. Comp. App. Bd. LEXIS 35, at *11-12
(Tenn. Workers’ Comp. App. Bd. Oct. 02, 2015) (upholding dismissal of employee’s
claim pursuant to Rule .14(3) after employee failed to appeal an expedited hearing order).
Mr. Jones instead advocates a reading of the statute that would serve as a disincentive for
employees to seek appellate review of interlocutory orders and would impede the courts’
ability to control their dockets by dismissing claims that exhibit no likelihood of success.

       Finally, Rule .14(3) is silent regarding whether a dismissal should be with or
without prejudice. The Court finds that Mr. Jones received a full and fair opportunity to
present his case, but nonetheless failed to meet his burden. Furthermore, because Mr.
Jones failed to identify any method or intent to cure his evidentiary shortcomings, it
would seem contrary to the purposes of Rule .14(3), as well as the legislative intent of the
2013 reforms, to dismiss the matter, only to allow Mr. Jones to re-file his claim and force
Trojan to make the very same arguments, expending additional time and resources. For
this reason, and for the sake of judicial economy, the Court dismisses Mr. Jones’ claim
with prejudice.

      IT IS, THEREFORE, ORDERED that the above-captioned matter is hereby
dismissed with prejudice. The filing fee for this this cause of $150.00 is taxed to the
Employer, Trojan, pursuant to Rule 0800-02-21-.07 of the Mediation and Hearing
Procedures, for which execution may issue, as necessary.

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

        ENTERED this the 13th day of April, 2016.


                                            _____________________________________
                                            Judge Dale Tipps
                                            Court of Workers’ Compensation Claims


applicable provisions of the Workers’ Compensation Law. This is incorrect under current law. The Workers’
Compensation Law shall not be remedially or liberally construed in favor of either party but shall be construed
fairly, impartially and in accordance with basic principles of statutory construction favoring neither the employee
nor employer. Tenn. Code Ann. § 50-6-116 (2015).


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Right to Appeal:

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

   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
      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).




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                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Order Granting Motion to
Dismiss was sent to the following recipients by the following methods of service on this
the 13th day of April, 2016.


 Name                     Certified   Via        Via    Service sent to:
                           Mail       Fax       Email
 Tracy Moore                                     X      tracy@moorepeden.com

 Laurenn Disspayne                               X      ldisspayne@manierherod.com




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




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