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


ANDY HUMPHREY,                           )
        Employee,                        )       Docket No. 2015-06-0107
                                         )
v.                                       )       State File No. 2015184197
                                         )
LEWISBURG RUBBER AND                     )       Judge Joshua Davis Baker
GASKET,                                  )
        Employer,                        )
                                         )
And                                      )
                                         )
ACCIDENT FUND INS. CO.,                  )
        Insurer.                         )

                                DISMISSAL ORDER

       This claim came before the Court on August 25, 2016, for a hearing of the Motion
to Dismiss filed by Lewisburg Rubber and Gasket (Lewisburg Rubber). The Court
conducted the hearing via teleconference. The employee, Andy Humphrey, did not
respond to Lewisburg Rubber’s Motion and did not participate in the teleconference. For
the reasons provided herein, the Court grants Lewisburg Rubber’s Motion and dismisses
Mr. Humphrey’s claim with prejudice.

                                    Claim History

        This claim concerns a left-hip fracture Mr. Humphrey allegedly suffered when he
fell in the parking lot of his workplace on January 5, 2015. Mr. Humphrey filed a PBD
seeking temporary disability and medical benefits that stated the following: “walking on
crutches, due to sprained mussel [sic], slipped and fell on uneven ground in parking lot,
not handicapped [sic] friendly.” The mediator filed a Dispute Certification Notice (DCN)
certifying medical and temporary disability benefits as disputed issues.



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       Mr. Humphrey then filed a Request for Expedited Hearing and asked the Court to
issue a ruling based on the documents in the claim file. Mr. Humphrey, however, failed
to provide an affidavit with his Request for Expedited Hearing, so the Court had no
sworn statement to support his claim.

       On November 17, 2015, the Court denied Mr. Humphrey’s request for temporary
disability and medical benefits. In its order denying benefits, the Court wrote:

      Mr. Humphrey maintains in his PBD that he fell in the parking lot. He
      attributes his broken femur to the fall. Mr. Humphrey, however, provided
      no sworn testimony via affidavit to support his claim. Accordingly, the
      only credible evidence before the Court regarding causation comes from the
      statements attributed to him through the medical records. The Court finds
      the contents of these statements insufficient to establish that Mr. Humphrey
      suffered an injury by accident as defined by the Workers’ Compensation
      Law. Instead, the medical records present more questions concerning the
      cause of his injury than answers. Some of these questions might have been
      answered if Mr. Humphrey had filed an affidavit supporting his Request for
      Expedited Hearing.

After the Court denied Mr. Humphrey’s temporary disability and medical benefits
request, the Court issued a scheduling order establishing deadlines for the parties to
collect proof in preparation for a final Compensation Hearing. One of the deadlines
required the parties to complete post-discovery alternative dispute resolution (ADR) by
April 15, 2016. The Court also ordered the parties to participate in a telephonic pre-
compensation hearing conference.

        Before the pre-compensation hearing conference, Lewisburg Rubber filed a
document entitled “Notice of Non-compliance, Inability to Communicate with Employee
and Motion to Dismiss.” In this document, Lewisburg Rubber told the Court the parties
failed to complete post-discovery ADR before April 15, 2016, because Mr. Humphrey’s
phone and email had been disconnected, which prevented Lewisburg Rubber’s counsel
from contacting Mr. Humphrey to schedule ADR.

       At the pre-compensation hearing conference, Mr. Humphrey said financial
problems resulted in his telephone carrier disconnecting his telephone number and
cancelling his email account. Mr. Humphrey also said he recently moved to Florida and
lacked financial means to travel to Tennessee to attend ADR.

      The Court continued the Compensation Hearing and instructed the parties to
complete post-discovery ADR by July 31, 2016. The Court also instructed Mr.
Humphrey to contact the Mediation and Ombudsman Service of Tennessee (MOST), the


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group responsible for conducting ADR, and request permission to attend participate in
ADR via telephone.1 MOST allowed Mr. Humphrey to attend the ADR via telephone.

        The parties scheduled ADR for July 28, 2016. Prior the scheduled ADR, Mr.
Humphrey sent an email to the mediator, counsel for Lewisburg Rubber and a Court
assistant that stated “I am formally withdrawing my claim for any compensation on my
case.” When the mediator convened ADR on July 28, 2016, Mr. Humphrey did not
participate. Following ADR, the mediator issued a DCN noting Mr. Humphrey’s failure
to participate.

                             Findings of Fact and Conclusions of Law

       Lewisburg Rubber argued that Mr. Humphrey failed to prosecute his claim and
moved to dismiss it pursuant to Rule 41.02 of the Tennessee Rules of Civil Procedure.
Rule 41.02 provides, “For failure of the plaintiff to prosecute or to comply with these
rules or any order of court, a defendant may more for dismissal of an action or of any
claim against the defendant.” “Trial courts possess inherent, common-law authority to
control their dockets and the proceedings in their courts. Their authority is quite broad
and includes the express authority to dismiss cases for failure to prosecute or to comply
with the Tennessee Rules of Civil Procedure or the orders of the court.” Hodges v.
Tennessee Att’y Gen., 43 S.W.3d 918, 920 (Tenn. Ct. App. 2000).

       In its Motion, Lewisburg Rubber cited Mr. Humphrey’s failure to attend post-
discovery mediation the first time it was scheduled. Since the motion was filed, Mr.
Humphrey again failed to attend post-discovery mediation and sent an email to counsel
for Lewisburg Rubber, the mediator and the Court’s assistant stating he wished to
formally withdraw his claim. Pursuant to these facts, the Court has failed to prosecute his
claim. Additionally, the Court finds Mr. Humphrey has no intent to do so. It would be a
waste of judicial resources and Lewisburg Rubber for this Court to continue setting
deadlines and holding hearings that Mr. Humphrey fails to attend, especially in light of
his expressed intention to abandon his claim. The Court therefore grants Lewisburg
Rubber’s Motion and dismisses this claim for Mr. Humphrey’s failure to prosecute.

IT IS, THEREFORE, ORDERED as follows:

        1. Mr. Humphrey’s claim against Lewisburg Rubber for workers’ compensation
           benefits is dismissed without prejudice to refiling pursuant to Rule 41.02 of the
           Tennessee Rules of Civil Procedure.



1
 In its order continuing the Compensation Hearing, the Court erroneously referred to MOST as the “Mediation and
Ombudsmen Services Team.”

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     2. The Court assesses the $150 filing fee in this claim to Lewisburg and/or its
        workers’ compensation carrier pursuant to Rule 0800-02-21-.07 (2015) of the
        Mediation and Hearing Rules of the Tennessee Division of Workers’
        Compensation, for which execution may issue as necessary. Lewisburg
        Rubber or its carrier shall promptly remit the filing fee to the Clerk of the
        Court of Workers’ Compensation Claims.

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


ISSUED ON THIS THE 7TH DAY OF SEPTEMBER, 2016.


                                       ____________________________________
                                      Judge Joshua Davis Baker
                                      Court of Workers’ Compensation Claims




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Right to Appeal:

      Tennessee Law allows any party who disagrees with this Compensation Hearing
Order to appeal the decision to the Workers’ Compensation Appeals Board or the
Tennessee Supreme Court. To appeal your case to the Workers’ Compensation Appeals
Board, you must:

   1. Complete the enclosed form entitled: “Compensation Hearing Notice of Appeal.”

   2. File the completed form with the Court Clerk within thirty calendar days of the
      date the Workers’ Compensation Judge entered the Compensation Hearing Order.

   3. Serve a copy of the Compensation Hearing Notice of 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. The party filing the notice of appeal, having the responsibility of ensuring a
      complete record on appeal, may request, from the Court Clerk, the audio recording
      of the hearing for the purpose of having a transcript prepared by a licensed court
      reporter and filing it with the Court Clerk within fifteen calendar days of the filing
      of the Expedited Hearing Notice of Appeal. Alternatively, the party filing the
      appeal may file a joint statement of the evidence within fifteen calendar days of
      the filing of the Compensation Hearing Notice of Appeal. The statement of the
      evidence must convey a complete and accurate account of what transpired in the
      Court of Workers’ Compensation Claims and must be approved by the workers’
      compensation judge before the record is submitted to the Clerk of the Appeals
      Board. See Tenn. Comp. R. & Regs. 0800-02-22-.03 (2015).



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6. 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) (2015).

To appeal your case directly to the Tennessee Supreme Court, the
Compensation 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, this Order will become final by operation of law thirty calendar
days after entry, pursuant to Tennessee Code Annotated section 50-6-239(c)(7).




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                               CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing was sent to the
                                                                           7th
 following recipients by the following methods of service on this the ____day       of
 September, 2016.


Name               Certified    Via      Via         Email Address
                   Mail         Fax      Email
Andy Humphrey      x                     x           138 Travel Park Drive, Unit 145
                                                     Spring Hill, FL 34607
                                                     andy63humphrey@gmail.com
Gordon Aulgur                            x           gordon.aulgur@accidentfund.com


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




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