                                                                                    FILED
                                                                                  Feb 21, 2019
                                                                                 01:17 PM(CT)
                                                                               TENNESSEE COURT OF
                                                                              WORKERS' COMPENSATION
                                                                                     CLAIMS




            TENNESSEE BUREAU OF WORKERS' COMPENSATION
           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                              AT GRAY

TOMMY DIAMOND, II,                         )   Docket Number: 2018-02-0072
          Employee,                        )
v.                                         )
CLAYTON HOMES, INC.,                       )   State File Number: 12596-2018
          Employer,                        )
 and                                       )
 XL INSURANCE AMERICA, INC.,               )   Judge Brian K. Addington
          Insurance Carrier.               )


    COMPENSATION HEARING ORDER GRANTING SUMMA.RY JUDGMENT


       This claim came before the undersigned Workers' Compensation Judge on
February 13, 2019, on Clayton Homes' Amended Motion for Summary Judgment. Based
on the pleadings and affidavits, the Court holds there is no genuine issue of material fact
that Mr. Diamond did not timely file his claim and grants the motion.

                                   Procedural History

       Mr. Diamond alleged a right wrist injury primarily arising out of and in the course
and scope of his employment with Clayton Homes on September 26, 2016. He filed a
Petition for Benefit Determination (PBD) on February 1, 2018. This Court issued an
expedited hearing order denying medical and temporary benefits after concluding
Clayton Homes had not paid benefits and Mr. Diamond had not filed a PBD within one
year of the date of injury. Afterward, Clayton Homes filed an original and then Amended
Motion for Summary Judgment; 1 Mr. Diamond did not file a response to the motion.




1
  Clayton Homes filed the Amended Motion in order to comply with the Court's rules concerning
summary judgment motions.
                        Findings of Fact and Conclusions of Law

        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 oflaw." Tenn. R. Civ. P. 56.04 (2018).

        Clayton Homes must do one of two things to prevail on its motion for summary
judgment: (1) submit affirmative evidence that negates an essential element of Mr.
Diamond's claim, or (2) demonstrate that his evidence is insufficient to establish an
essential element of his 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 Clayton
Homes meets this burden, Mr. Diamond "may not rest upon the mere allegations or
denials of its pleading." Id. at 265. Rather, he must respond by producing evidence that
sets forth specific facts showing there is a genuine issue for trial. ld.; Tenn. R. Civ. P.
56.06.

       Timely filing a PBD is an essential element of a workers' compensation claim, and
the question is whether Mr. Diamond did so. Clayton Homes has the initial burden of
producing facts to show that the statute of limitations bars his claim. Once it establishes
those facts, Mr. Diamond must prove that an exception exists or the claim is barred. See
Cloydv. Hartco Flooring Co., 274 S.W.3d 638,647 (Tenn. 2008).

       In a workers' compensation claim where the employer has not paid benefits, "the
right to compensation under this chapter shall forever be barred" unless notice of the
injury is provided to the employer and "a petition for benefit determination is filed with
the bureau ... within one (1) year following the accident resulting in an injury." Tenn.
Ann. § 50-6-203(b)(1) (Emphasis added).

       It is undisputed that Clayton Homes did not pay benefits at any point for his
injury, and that Mr. Diamond did not file a PBD until February 1, 20 18, well past one
year after the date of injury. Therefore, because Mr. Diamond filed his claim after the
expiration of the statute of limitations, the Court concludes no genuine issue of material
fact exists and summary judgment is appropriate as a matter of law.

IT IS, THEREFORE, ORDERED as follows:

   1. Clayton Homes' Motion for Summary Judgment is granted, and Mr. Diamond's
      claim for the workers' compensation benefits is dismissed with prejudice to its
      refiling.

   2. Clayton Homes shall pay costs of $150.00 to the Court Clerk within five business
      days under Tennessee Compilation Rules and Regulations 0800-02-21-.07.
       3. Clayton Homes shall prepare and file with the Court Clerk a Statistical Data Form
          (SD2) within ten business days of entry of this order.

       4. Absent an appeal, this order shall become final thirty days after issuance.

   ENTERED February 21, 2019



                                              IS/ Brian K. Addington
                                             BRIAN K. ADDINGTON
                                             Workers' Compensation Judge


                                CERTIFICATE OF SERVICE

          I certify that a true and correct copy of the foregoing was sent to the following
   recipients by the following methods of service on, February 21, 2019.

Name                         Certified Via       Via   Sent To:
                              Mail     Fax       Email
Tommy Diamond,                                         48 Diamond Drive
Employee                         X                 X   Delbarton, WV 25670
                                                       diamondboxinggym@gmail.com
Leslie Bishop,
Employer's Attorney                                X      lbishop@lewisthomason.com



                                        &   ))uUk--'
                                      PENN~RUM,        COURT CLERK
                                      Court of Workers' Compensation Claims
                                 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.
 '                                                                                                                       I




                                    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
