                                                                              FILED
                                                                            May 06, 2019
                                                                           11:22 AM(CT)
                                                                         TENNESSEE COURT OF
                                                                        WORKERS' COMPENSATION
                                                                               CLAIMS




      TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS
        IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                       AT MURFREESBORO

AMY BUSH,                                 ) Docket No. 2018-05-0258
         Employee,                        )
v.                                        )
                                          )
STONES RIVER CENTER/RHA                   ) State File No. 48483-2016
HEALTH SERVICES,                          )
         Employer,                        )
and                                       )
                                          )
PA MFR’S ASSN. INS. CO.,                  ) Judge Dale Tipps
          Carrier.                        )


 COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT



       This matter came before the Court on Stones River Center/RHA Health Services
(RHA)’s Motion for Summary Judgment. The central issue is whether RHA is entitled to
summary judgment on grounds that the statute of limitations bars Ms. Bush’s claim. For
the reasons below, the Court holds RHA is entitled to summary judgment.
                                 Procedural History
      Ms. Bush alleged she suffered a work-related injury to her right foot on June 8,
2016. RHA denied the claim and filed a Notice of Controversy on January 17, 2017.
Ms. Bush filed a Petition for Benefit Determination (PBD) on March 7, 2018, seeking
medical benefits.
       Following an expedited hearing, the Court entered an order denying Ms. Bush’s
claim, finding she was not likely to prevail at a hearing on the merits. Ms. Bush
appealed, but the Worker’s Compensation Appeals Board affirmed the ruling.
      RHA filed this Motion for Summary Judgment, and Ms. Bush filed no response.
The Court heard arguments in a telephonic hearing on May 1, 2019.



                                          1
                                           Facts
        RHA filed a statement of undisputed material facts with citations to the record in
compliance with Tennessee Rules of Civil Procedure 56.03. Because Ms. Bush failed to
file a response to the statement, the Court deems them admitted and summarizes them as
follows:
   1. Ms. Bush alleged an injury date of June 8, 2016.
   2. RHA denied the claim on January 17, 2017.
   3. Ms. Bush filed the PBD on March 7, 2018.
       Based on these facts, RHA argued the Court should grant summary judgment
because it affirmatively negated an essential element of Ms. Bush’s claim – that she
timely filed the PBD – and that the facts are insufficient for Ms. Bush to prove this
element.
       Although Ms. Bush filed no response, she participated in the hearing. However,
she limited her response to a statement that she had contacted the EEOC and that she
“disputed everything.”
                                    Law and Analysis
        Summary judgment is appropriate “if 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 (2018).

       As the moving party, RHA must do one of two things to prevail on its motion: (1)
submit affirmative evidence that negates an essential element of the Ms. Bush’s claim, or
(2) demonstrate that Ms. Bush’s evidence is insufficient to establish an essential element
of her claim. Tenn. Code Ann. § 20-16-101 (2018); see also Rye v. Women’s Care Ctr.
of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If RHA is successful in
meeting this burden, Ms. Bush must then establish that the record contains specific facts
upon which the Court could base a decision in her favor. Rye, at 265.
       The essential element at issue in this case comes from Tennessee Code Annotated
section 50-6-203(b), which provides:
       (1) In instances when the employer has not paid workers’ compensation
       benefits to or on behalf of the employee, the right to compensation under
       this chapter shall be forever barred, unless the notice required by § 50-6-
       201 is given to the employer and a petition for benefit determination is filed
       with the bureau on a form prescribed by the administrator within one (1)
       year after the accident resulting in injury.



                                             2
      (2) 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.
        The undisputed facts conclusively demonstrate that Ms. Bush filed her PBD on
March 7, 2018, which is considerably more than “one year after the accident resulting in
injury.” Further, Ms. Bush offered no proof that RHA ever voluntarily paid any benefits
for this injury. Thus, RHA met its burden of negating an essential element of the claim.
This means Ms. Bush must show that the record contains specific facts upon which the
Court could find in her favor, such as proof of a recognized exception to the statute of
limitations.
       As noted above, Ms. Bush did not file a response to the motion or provide any
additional evidence. This leaves the Court without proof of any applicable exceptions.
Ms. Bush’s evidence is therefore insufficient to establish this essential element of her
claim, and the Court must hold that RHA is entitled to summary judgment as a matter of
law.
IT IS, THEREFORE, ORDERED as follows:

   1. RHA’s Motion for Summary Judgment is granted, and Ms. Bush’s claim is
      dismissed with prejudice to its refiling.

   2. Absent appeal, this order shall become final thirty days after entry.

   3. The Court taxes the $150.00 filing fee to RHA under Tennessee Compilation
      Rules and Regulations 0800-02-21-.07 payable to the Clerk within five days of
      this order becoming final.

   4. RHA shall prepare and submit the SD-2 with the Clerk within ten days of the date
      of judgment.

      ENTERED May 6, 2019.



                                          ______________________________________
                                          Judge Dale A. Tipps
                                          Court of Workers’ Compensation Claims


                                             3
                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Order was sent to the following
recipients by the following methods of service on May 6, 2019.

  Name                        Certified   Via      Service Sent To
                              Mail        Email
  Amy Bush                       X           X     busha2022@gmail.com
                                                   1010 N. Academy St.
                                                   Murfreesboro, TN 37130
  Rosalia Fiorello,                         X      rfiorello@wimberlylawson.com
  Employer Atty.
  MOST                                      X      Patsy.bumbalough@tn.gov;
                                                   peggy.haley@tn.gov




                                          ______________________________________
                                          Penny Shrum, Court Clerk
                                          Wc.courtclerk@tn.gov




                                             4
                                 II
                                  I                                                       'I



                          Compensation Hearing Order Right to Appeal:

     If you disagree with this Compensation Hearing Order, you may appeal to the Workers'
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers'
Compensation Appeals Board, you must:

    1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal," and file
       the form with the Clerk of the Court of Workers' Compensation Claims within thirty
       calendar days of the date the compensation hearing order was filed. When filing the
       Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if
       represented).

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau's
      website or any Bureau office) seeking a waiver ofthe filing fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of lndigency will
      result in dismissal of your appeal.

   3~   You bear the responsibility of ensuring a complete record on appeal. You may request
        from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court
        reporter must prepare a transcript and file it with the court clerk within fifteen calendar
        days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
        evidence prepared jointly by both parties within fifteen calendar days of the filing of the
        Notice of Appeal. The statement of the evidence must convey a complete and accurate
        account of the hearing. The Workers' Compensation Judge must approve the statement
        of the evidence before -the record is submitted to the Appeals Board. If the Appeals
        Board is called upon to review testimony or other proof concerning factual matters, the
        absence of a transcript or statement of the evidence can be a significant obstacle to
        meaningful appellate review.

   4. After the Workers' Compensation Judge approves the record and the court clerk transmits
      it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
      party has fifteen calendar days after the date of that notice to submit a brief to the
      Appeals Board. See the Practices and Procedures of the Workers' Compensation
      Appeals Board.

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court's
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann.§ 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
II                                                                                                                      I.
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                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                      800-332-2667

                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ __ _ _ _ _ __                       2. Address: - - - - - - - -- - - --

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - -- - - -- -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -

             - - - - - - - - - - - - - -- --                  Relationship: - - - - - -- - - -- - -

             - - - - - - - - - - -- - -- - - Relationship: - - - -- - -- - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - -- - - -- -

     6. I am employed by: - - - - - - - - - - -- - - -- - - - - - -- - - -- - -

             My employer's address is: - - - - -- - - - -- - - - - - -- - -- - - - -

             My employer's phone number is: - - - -- - - - -- - - - - - -- - - -- - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ __

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are:     ! ~                                                      li
                                                                                  I
                          '

        Rent/House Payment $              per month     Med icai/Dental $ _ _ ___ per month

        Groceries       $           per month           Telephone       $ _ __ _ _ per month
        Electricity     $           per month           School Supplies $ _ _ _ _ _ per month
        Water           $           per month           Clothing        $ _ _ _ _ _ per month
        Gas             $           per month           Child Care      $ _ _ _ _ _ per month
        Transportation $            per month           Child Support   $ _ _ _ _ _ per month
        Car             $            per month
        Other           $           per month (describe:


10. Assets:

        Automobile              $ _ _ _ __
                                                        (FMV) - - - - - - - - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ __
                                                        (FMV) - - - - - - - - - -
        Other                   $ _ _ _ __              Describe:_ _ _ _ __ _ __ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

____ dayof _____________________ , 20_ __




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ _ __




LB-1108 (REV 11/15)                                                                          RDA 11082
