FILED

February 21, 2017
TN COURT OF
WORKERS’ COMPENSATION
CLAIMS

Time: 1:34 PM

 

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

AT CHATTANOOGA

Michael T. Swafford, ) Docket No. 2016-01-0439
Employee, )

Vv. )

Morristown Drivers Service, Inc., ) State File No. 51936-2016
Employer, )

And )

Cherokee Ins. Co., ) Judge Thomas Wyatt
Carrier. )

 

COMPENSATION HEARING ORDER
DISMISSING CLAIM WITH PREJUDICE

 

 

This claim came before the undersigned Workers’ Compensation Judge on
February 17, 2017, upon a Motion to Dismiss filed by Morristown Drivers Service, Inc.
The central focus of Morristown’s dismissal motion is Mr. Swafford’s failure to file for a
hearing as required by both the Workers’ Compensation Law and the orders of this Court.
The Court considers Morristown’s motion as a Motion to Dismiss for failure to prosecute
pursuant to Tennessee Rule of Civil Procedure 41.02(1). For the reasons set forth below,
the Court dismisses Mr. Swafford’s claim with prejudice to its refiling.

History of the Claim

Mr. Swafford filed a Petition for Benefit Determination on July 12, 2016. The
mediating specialist issued a Dispute Certification Notice after mediation did not resolve
the parties’ issues. Because neither party filed for a hearing within sixty days of the
issuance of the Dispute Certification Notice, the Clerk placed the claim on its Show
Cause Docket and scheduled a telephonic Show Cause Hearing.

The Court conducted the Show Cause Hearing at which Mr. Swafford and Stephen
Heard, attorney for Morristown, appeared. Mr. Swafford expressed his intent to proceed
with his claim, but stated he had not previously understood that he needed to file for a
hearing within sixty days from the date of the issuance of the Dispute Certification
Notice. The Court explained the procedures and gave him until January 10, 2017, to file

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for a hearing. The Court scheduled a telephonic Status Conference on January 10 to
monitor Mr. Swafford’s progress.

Mr. Swafford and Mr. Heard participated in the Status Conference. Mr. Swafford
announced he had not filed for a hearing, but thought he had engaged an attorney to
represent him. The Court granted Mr. Swafford until January 18, to request a hearing and
scheduled another Status Conference on January 18 to monitor his process.

The Court conducted the next Status Conference as scheduled, but Mr. Swafford
did not appear. The Court unsuccessfully attempted to contact Mr. Swafford by
telephone and gave him several minutes after the scheduled time to appear. Mr. Heard
appeared at the scheduled time and, when Mr. Swafford did not appear after the
expiration of several minutes, the Court conducted the Status Conference in his absence.
Mr. Heard informed the Court that he had not yet received service of a request for
hearing filed by Mr. Swafford.

The Court informed Mr. Heard that, if Mr. Swafford did not file a request for
hearing by the end of business on January 18, the Court would entertain his client’s
dismissal motion. Morristown filed its Motion to Dismiss on January 19, alleging Mr.
Swafford had not filed a request for hearing as required by law and ordered by the Court.
A review of the file of the Clerk of the Court of Workers’ Compensation Claims revealed
that Mr. Swafford did not file the request by the end of business on January 18, and in
fact has not filed for a hearing to date.

The Court scheduled a telephonic hearing on February 17, 2017, to consider
Morristown’s Motion to Dismiss. The Court’s assistant served two Docketing Notices on
both parties confirming the time and date of the hearing. Mr. Heard appeared at the
scheduled time for the hearing; however, Mr. Swafford did not. After allowing several
minutes to pass to assure that Mr. Swafford did not call in late, the Court conducted the
hearing without Mr. Swafford’s participation.

Findings of Fact and Conclusions of Law

The Court follows the following legal principles in deciding Morristown’s Motion
to Dismiss. Tennessee Code Annotated section 50-6-239(a)(1) (2016) requires that one
of the parties to a claim request either an expedited hearing or scheduling hearing within
sixty days from the issuance of a dispute certification notice. When neither party
requests a hearing within the requisite time period, the Clerk places the claim on the
Court’s Show Cause Docket pursuant to Tennessee Compilation Rules and Regulations
0800-02-21-.12(1) (2016). The Court then conducts a Show Cause hearing to determine
the parties’ intent in moving forward with the claim.

Mr. Swafford stated his intent to pursue his claim during the Show Cause Hearing

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here. In reliance upon Mr. Swafford’s stated intent, the Court twice extended his time to
request a hearing. Morristown filed its Motion to Dismiss after both extensions expired
without Mr. Swafford filing for a hearing.

Tennessee Rule of Civil Procedure 41.02(1) (2016) provides a mechanism by
which a defendant may seek the dismissal of the claim “[f]or the failure of the plaintiff to
prosecute or to comply with these rules or any order of the court[.]” Subsection (3) of
Rule 41.02 provides that a dismissal under Rule 41.02(1) is “an adjudication on the
merits” unless the Court orders otherwise in its order of dismissal.

Based on a review of the record in this claim, the Court finds that Mr. Swafford
did not file for a hearing as required by the Workers’ Compensation Law. The Court
twice extended Mr. Swafford’s time to file for a hearing, and ordered that he file for a
hearing on or before established deadlines. Mr. Swafford did not comply with the
Court’s orders.

In view of the above, the Court holds that Morristown is entitled to a dismissal of
this claim because Mr. Swafford has failed to prosecute his claim as required by both the
Workers’ Compensation Law and the orders of this Court. Accordingly, the Court
dismisses Mr. Swafford’s claim with prejudice to its refiling.

The Court taxes the filing fee to Morristown and/or its carrier pursuant to
Tennessee Compilation Rules and Regulations 0800-02-21-.07 (2016). Morristown
and/or its carrier shall remit the filing fee to the Clerk of the Court of Workers’
Compensation Claims within ten days from the date of the issuance of this order.

IT IS, THEREFORE, ORDERED as follows:

1. Mr. Swafford’s claim is dismissed with prejudice to its refiling.

2. The Court taxes the $150 filing fee in this claim to Morristown and/or its workers’
compensation carrier pursuant to Rule 0800-02-21-.07 of the Bureau’s Mediation
and Hearing Rules (2016). Morristown or its carrier shall promptly remit the

filing fee to the Clerk of the Court of Workers’ Compensation Claims.

3. Counsel for Morristown shall prepare and submit the SD-1 for this matter within
ten days of the date of judgment.
ENTERED this the 21st day of February, 2017.

Thomas Wyatt, Judge
Court of Workers’ Compensation Claims

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this Compensation Hearing Order
Dismissing Claim With Prejudice was sent to the following recipients by the following
methods of service on this the 21st day of February, 2017.

 

 

 

 

 

 

 

 

Name Certified | Via Via_ | Service sent to:
Mail Fax Email
Michael Swafford, Xx MSwaf28@gmail.com
self-represented
Steven Heard, Attorney X skheard@cclawtn.com

 

 

() AM S| aye Why LOWAA/ i t {)
Penny Shrum, Clerk of Court ut

Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
