                                                                                   FILED
                                                                                 Feb 18, 2020
                                                                                 02:52 PM(CT)
                                                                                  TENNESSEE
                                                                             WORKERS' COMPENSATION
                                                                                APPEALS BOARD

            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Cornell Ayers, deceased, by                  )   Docket No. 2018-08-1189
Tiffany Ayers                                )
                                             )   State File No. 75457-2018
v.                                           )
                                             )
Smith & Nephew, Inc., et al.                 )
                                             )
                                             )
Appeal from the Court of Workers’            )
Compensation Claims                          )
Deana C. Seymour, Judge                      )

                                Vacated and Remanded

This interlocutory appeal involves a claim for death benefits. After filing a petition for
benefits identifying the deceased worker and the existence of a dependent spouse, the
attorney of record took no further action on the claim. An individual identified as the
decedent’s niece later participated in a show cause hearing and requested additional time
to file a request for a hearing. That request was granted, and the niece filed a request for
an expedited hearing. The employer responded by filing a motion to dismiss, asserting
that the niece is not a member of any class of potential dependents under Tennessee Code
Annotated section 50-6-210(c), that the niece is not the legal representative of the
decedent’s estate, and that she has no standing to bring a claim for death benefits. The
trial court denied the employer’s motion to dismiss, determining the motion should be
treated as a motion for summary judgment because the employer relied on the niece’s
affidavit that was filed in support of the request for an expedited hearing. The employer
has appealed. We vacate the trial court’s order and remand the case.

Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge David F. Hensley and Judge Pele I. Godkin joined.

Christopher M. Myatt, Memphis, Tennessee, for the employer-appellant, Smith &
Nephew, Inc.

Cornell Ayers, deceased, by Tiffany Ayers, Memphis, Tennessee, pro se




                                             1
                              Factual and Procedural Background

       Prior to his death on August 22, 2018, Cornell Ayers (“Employee”) worked for
Smith & Nephew, Inc. (“Employer”). While working at Employer’s facility on August
21, 2018, Employee apparently fell and hit his head. He was taken by ambulance to a
local hospital where he died the following day. 1 On October 1, 2018, an attorney filed a
petition for death benefits in the name of the deceased employee. The petition indicated
there is a surviving spouse but no dependent children. Thereafter, a mediator issued a
Dispute Certification Notice indicating that Employee did not “attend the mediation” and
“did not communicate[] to reschedule with the Bureau.” The notice shows that it was
mailed to Employee’s mailing address, but there is no record of the notice being served
on the attorney who filed the petition for death benefits.

       The record on appeal contains no other references to the attorney who filed the
petition. More importantly, there is no motion to withdraw as counsel, no motion to
substitute counsel, and no order explaining why the attorney of record was no longer
involved in the case. 2 Moreover, there was no motion to add a party and no order adding
a party. Yet, on July 1, 2019, the trial court issued a show cause order instructing
“Tiffany Ayers, as representative of the Estate of Cornell Ayers, deceased” to show cause
as to why the claim should not be dismissed for failure to file a request for a hearing
consistent with Tenn. Comp. R. & Regs. 0800-02-21-.11(1) (2019).3 The order was
served on Tiffany Ayers and Employer’s attorney, but there is no indication it was
sent to the attorney who filed the petition for death benefits. There is also no
indication as to why Tiffany Ayers is identified as the representative of the deceased
employee’s estate.

        The show cause hearing was held on August 19, 2019, and the trial court issued an
order the following day noting that Ms. Ayers had requested additional time to file a
hearing request. Finding that Ms. Ayers showed a sufficient intent to pursue the case, the
trial court declined to dismiss the case, stating in its order that she must file a request for
a hearing on or before September 9, 2019, or “the Court will enter a dismissal without
prejudice.”

1
 The record is silent as to the facts surrounding the events of August 21, 2018, other than as stated in the
affidavit of Tiffany Ayers filed in support of a request for a hearing. We have gleaned the facts from the
documents filed in the trial court.
2
 In its brief, Employer states that “[c]ounsel for the claimant withdrew his representation after filing the
Petition.” However, there is no document in the record evidencing the attorney’s withdrawal and there is
no court order approving the withdrawal. See Tenn. Comp. R. & Regs. 0800-02-21-.04(3).
3
  The regulation provides that “either party may file a request for expedited hearing or request for
scheduling hearing” and that “[i]f no request for hearing is filed within sixty (60) days after the dispute
certification notice is filed, the clerk will set a show-cause hearing.” Tenn. Comp. R. & Regs. 0800-02-
21-.11(1).
                                                     2
       Thereafter, Ms. Ayers filed a request for an expedited hearing on September 4,
2019, asking the court to make a decision on the record rather than hold an in-person
hearing. In addition to the request for an expedited hearing, Ms. Ayers submitted an
affidavit as required by Tenn. Comp. R. & Regs. 0800-02-21-.15(1). Neither the request
for an expedited hearing nor Ms. Ayers’s affidavit indicates that Ms. Ayers is the legal
representative of Cornell Ayers’s estate. The affidavit does, however, indicate that
Employee is Ms. Ayers’s uncle.

       Thereafter, Employer filed a motion to dismiss for failure to state a claim upon
which relief can be granted, asserting Ms. Ayers lacked standing to pursue the claim for
death benefits. Employer also argued she was not a dependent as defined by Tennessee
Code Annotated section 50-6-210 (2019), adding that Ms. Ayers “is not an attorney nor
personal representative of [Employee’s] estate.” Employer asserted there is no
evidence that an estate has been opened on behalf of Employee or that Ms. Ayers
has been judicially appointed as the representative of any such estate. Ms. Ayers
did not appear at the hearing on Employer’s motion to dismiss.

       In its subsequent order, the trial court observed that Employer relied on Ms.
Ayers’s affidavit in support of its motion to dismiss and found the affidavit was a
document that fell outside the pleadings. Thus, the court treated Employer’s pleading as
a motion for summary judgment. See Tenn. R. Civ. P. 12.02 (“If . . . matters outside the
pleadings are presented to and not excluded by the court, the motion shall be treated as
one for summary judgment.”). 4 The trial court denied Employer’s motion to dismiss,
stating that “all parties shall be given the opportunity to present any pertinent material
under Rule 56.” Employer has appealed the trial court’s denial of its motion to dismiss.

                                       Standard of Review

       The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2019). The determination of whether the trial
court erred in ruling on a motion to dismiss for failure to state a claim upon which relief
could be granted is a question of law. Doe v. Catholic Bishop for Diocese of Memphis,
No. W2007-01575-COA-R9-CV, 2008 Tenn. App. LEXIS 527, at *3 (Tenn. Ct. App.

4
  We offer no opinion as to whether an affidavit submitted in accordance with Tenn. Comp. R. & Regs
0800-02-21-.15(1) is a “matter[] outside the pleading” as described in Rule 12.02 of the Tennessee Rules
of Civil Procedure. Compare Johnson v. McKee Foods Corp., No. E2003-02899-WC-R3-CV, 2004
Tenn. LEXIS 867, at *7 (Tenn. Workers’ Comp. Panel Oct. 12, 2004) (“We find that facts outside the
complaint were presented to the court and . . . the motion must be considered as one for summary
judgment.”), with Belton v. City of Memphis, No. W2015-01785-COA-R3-CV, 2016 Tenn. App. LEXIS
314, at *12 (Tenn. Ct. App. May 10, 2016) (“[W]here documents are required to be attached to a
complaint in conformity with Rule 10.03, consideration of those documents by the trial court does not
convert a motion to dismiss to a motion for summary judgment.”).
                                                   3
Sept. 16, 2008). Thus, the standard we apply in reviewing a trial court’s ruling on a
motion to dismiss is de novo with no presumption of correctness. Id. Moreover, the
interpretation and application of statutes and regulations are questions of law that are
reviewed de novo with no presumption of correctness. See Mansell v. Bridgestone
Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). Finally, we are mindful
of our obligation to construe the workers’ compensation statutes “fairly, impartially, and
in accordance with basic principles of statutory construction” and in a way that does not
favor either the employee or the employer. Tenn. Code Ann. § 50-6-116 (2019).

                                          Analysis

       Employer raises four issues on appeal, which we have re-stated as follows: (1)
whether Ms. Ayers is a dependent of Employee; (2) whether Ms. Ayers has standing to
prosecute the claim; (3) whether Employee’s claim for workers’ compensation benefits is
assignable; and (4) whether the court erred in failing to consider Ms. Ayers’s affidavit as
an integral part of the petition. In the context of the appeal as it has been presented to us,
however, we are unable to reach the merits of these issues because: (1) the attorney filing
the petition for benefits failed to comply with Tenn. Comp. R. & Regs. 0800-02-21-
.04(3) and; (2) neither the parties nor the court addressed how or why Ms. Ayers was
added as a party. There is no motion to withdraw as counsel, no motion to substitute
parties or add a party, and no order explaining the addition of Ms. Ayers as a party or a
judicially-appointed representative of the estate of the decedent.

       The Tennessee Court of Workers’ Compensation Claims conducts all hearings in
accordance with the Tennessee Rules of Evidence and the Tennessee Rules of Civil
Procedure “unless an alternate procedural or evidentiary rule has been adopted by the
administrator.” Tenn. Code Ann. § 50-6-239(c)(1). In examining the process of filing
pleadings and the issue of attorney representation, we must consider both the Rules of
Civil Procedure and the rules and regulations applicable to the Court of Workers’
Compensation Claims.

        Rule 11.01(a) of the Tennessee Rules of Civil Procedure requires that “every
pleading, written motion, and other paper shall be signed by at least one attorney of
record in the attorney’s individual name.” Furthermore, the rules and regulations
governing the Court of Workers’ Compensation Claims states that “[r]epresentation
continues until the case concludes, including all appeals[,] or until withdrawal from
representation is approved by a judge. An attorney seeking to withdraw must file a
motion with reasonable notice provided to the represented party.” Tenn. Comp. R. &
Regs. 0800-02-21-.04(3). Here, there is no indication in the record that the attorney who
filed the petition for death benefits filed a motion to withdraw or sought approval from
the trial court to withdraw as attorney of record. Accordingly, copies of all documents
filed with the Bureau or the trial court clerk should have been served on all parties or
their attorneys of record. Tenn. Comp. R. & Regs. 0800-02-21-.08. In the present case,

                                              4
the only pleading signed by the attorney of record is the petition for benefit
determination, and there is no evidence the attorney of record was served with any
documents filed subsequent to the filing of the petition.

       Moreover, there is no explanation in the record as to how or why Ms. Ayers was
added as a party or why the trial court permitted her to sign and file a Request for
Expedited Hearing when previous filings indicated there was an attorney of record. As
we have previously observed, a party may not proceed in a pro se capacity while
represented by counsel. See Lightfoot v. Xerox Bus. Servs., No. 2015-01-0233, 2016 TN
Wrk. Comp. App. Bd. LEXIS 43, at *12 (Tenn. Workers’ Comp. App. Bd. Sept. 12,
2016). Accordingly, until the attorney who filed the petition for death benefits is
permitted to withdraw by the trial court, he remains the attorney of record.

       In addition, a non-party who is not an attorney may not represent an injured
worker, a surviving spouse, or any other litigant in a workers’ compensation case. See
Tenn. R. Civ. P. 11.01(a); Tenn. Comp. R & Regs. 0800-02-21-.04(1). Filings made by a
person purportedly representing the estate of a deceased worker in a pro se capacity
cannot be considered until the court has approved the withdrawal of the attorney of
record and added the judicially-designated representative of the estate as a party. Id.

                                       Conclusion

      Accordingly, the trial court’s order denying Employer’s motion to dismiss is
vacated and the case is remanded to the trial court for such additional action as is deemed
appropriate by the trial court consistent with this opinion. Costs on appeal are taxed to
Employer.




                                            5
                  TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                    WORKERS’ COMPENSATION APPEALS BOARD

Cornell Ayers, deceased, by                            )     Docket No. 2018-08-1189
Tiffany Ayers                                          )
                                                       )     State File No. 75457-2018
v.                                                     )
                                                       )
Smith & Nephew, Inc., et al.                           )
                                                       )
                                                       )
Appeal from the Court of Workers’                      )
Compensation Claims                                    )
Deana C. Seymour, Judge                                )

                                   CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 18th day
of February, 2020.


 Name                              Certified   First Class   Via   Via     Sent to:
                                   Mail        Mail          Fax   Email
 Cornell Ayers, deceased, by                       X                 X     3187 Dunkin Williams Road
 Tiffany Ayers                                                             Memphis, TN 38119
                                                                           tnayers08@gmail.com
 Jonathan L. May                                                     X     jmay@forthepeople.com
 Christopher Myatt                                                   X     cmyatt@martintate.com
 Deana C. Seymour, Judge                                             X     Via Electronic Mail
 Kenneth M. Switzer, Chief Judge                                     X     Via Electronic Mail
 Penny Shrum, Clerk, Court of                                        X     penny.patterson-shrum@tn.gov
 Workers’ Compensation Claims




Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: WCAppeals.Clerk@tn.gov
