                                                                                                                FILED
                                                                                                            Feb 14, 2020
                                                                                                           10:37 PM(ET)
                                                                                                       TENNESSEE COURT OF
                                                                                                      WORKERS' COMPENSATION
                                                                                                             CLAIMS




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

Katalin Minnig,                                               )    Docket No.: 2014-01-0015
            Employee,                                         )
v.                                                            )
Walmart Associates, Inc.,                                     )    State File No.: 74443-2014
           Employer,                                          )
and                                                           )
New Hampshire Ins. Co.,                                       )    Judge Thomas Wyatt
           Carrier.                                           )
                                                              )


             COMPENSATION ORDER GRANTING SUMMARY JUDGMENT


       This case came before the Court on Walmart's Motion for Summary Judgment.
Walmart argued it is entitled to summary judgment on Katalin Minnig's petition to set
aside the Court's order approving the settlement of her back-injury claim. Ms. Minnig
argued summary judgment is inappropriate because mental confusion from Post-
Traumatic Stress Disorder {PTSD) affected her understanding that the settlement
included her back claim. She also asserted that her former attorney and Walmart
committed fraud by negotiating a settlement of her back claim against her instructions.

     For the following reasons, the Court grants Walmart's motion and dismisses Ms.
Minnig's claim.

                                                        History

      Ms. Minnig brought three workers' compensation claims during her employment
at Walmart. Two claims primarily involving her left wrist arose before the creation of the
Court of Workers' Compensation Claims. 1 Thus, the Court does not have jurisdiction
over them. The Court does have jurisdiction over the third claim, involving Ms.
Minnig's back.

1
    Ms. Minnig claimed that the latter of these claims also involved alleged feet and psychological injuries.

                                                             1
       Ms. Minnig reached maximum medical improvement for her wrist injuries during
the pendency of her back claim. Walmart initially accepted Ms. Minnig's back claim but
later denied it after receiving a physician's opinion that the injury was not work-related.
At or around this time, Ms. Minnig retained Attorney W. Holt Smith to represent her.
The parties eventually scheduled a Benefit Review Conference for July 22, 2015.

       Ms. Minnig and Mr. Smith disagree about the extent of Mr. Smith's representation
at the time of the BRC. Ms. Minnig admitted into evidence Mr. Smith's letter to her
dated July 6, 2015, which read, in part, "[a]ccording to your instructions, we will no
longer represent you in the back injury case. I recommend that we proceed with the wrist
injury case." 2 Mr. Smith testified by affidavit that, before the BRC, Ms. Minnig "had
asked me to agree to represent her in all three (3) of her pending workers' compensation
claims and I agreed."

       Ms. Minnig, Mr. Smith, and Walmart's lawyer, Mary Elizabeth Maddox, attended
the BRC on July 22, 2015. Ms~ Minnig asserted in her petition and an affidavit that she
did not expect the BRC to include the back claim because she had not reached maximum
medical improvement from that injury. However, Walmart made a offers to settle all of
Ms. Minnig's claims. At the BRC, Ms. Minnig and Mr. Smith executed Mediated
Settlement Agreements for an $18,000 settlement of the wrist claims and a $7,000
settlement of the back claim. All three settlements closed future medical benefits.

        Six days later, Ms. Minnig Mr. Smith, and Ms. Maddox presented the three
settlements for approval. 3 Ms. Minnig, Mr. Smith, and Ms. Maddox presented the Court
separate, signed Settlement Agreements for each claim that set forth terms identical to
those in the signed Mediated Settlement Agreements. The parties designated the back
settlement "doubtful and disputed" because of the adverse causation opinion on which
Walmart denied the claim.

       The Settlement Agreement covering the back claim contained language that, by
signing the agreement, Ms. Minnig acknowledged she had the opportunity to ask
questions during the approval hearing; entered into the agreement voluntarily and with
full knowledge of her rights and responsibilities; and knowingly waived her right to
proceed to trial. The agreement also included language that Ms. Minnig's signature
acknowledged that she received notification about ''the possibility or probability of later
manifestations of injury, future medical expenses and additional lost time," and that she
"voluntarily" agreed to resolve the claim "for all time."4
2
  Walmart objected to the admission of the letter on hearsay groWlds. The Court overrules the objection because the
letter is consistent with Mr. Smith's affidavit testimony, which Walmart submitted, and thus offered for reasons
other than the truth of the matter asserted
3
  The Wldersigned conducted the approval hearing. He considered the back settlement m1der his authority as a
Workers' Compensation Judge and the wrist settlements Wlder his authority as a Specialist 4 for the Bureau.
4
  The agreements Ms. Minnig signed on the wrist claims contained almost identical language. Ms. Minnig initialed
questionnaires on the wrist claims acknowledging, among other matters, her Wlderstanding of the finality of the

                                                        2
        The Court interviewed Ms. Minnig in person, in the presence of counsel, during
the approval hearing. It informed her of her right to try her claims in court; that the
settlements required her to waive all other claims, including future medical benefits; and
that, if she prevailed at trial, the Court would award future medical benefits. The Court
entered an order approving the back settlement after Ms. Minnig voiced understanding
and agreement to the proposed settlement terms and the information the Court discussed
with her.5

       Following the approval hearing, Ms. Minnig received checks from Walmart
totaling $25,000. She executed them and received the net proceeds after deduction of
attorney's fees and expenses.

       Four years passed before Ms. Minnig petitioned to set aside the settlement. She
claimed she filed the petition less than a year after she read her settlement papers and
"discovered" they included her back claim. She asked the Court to set aside the approval
order because PTSD prevented her from competently participating in the approval
hearing. She alleged that her PTSD made it difficult to think clearly while in the
presence of male authority figures. She did not submit medical or psychiatric evidence
supporting her PTSD-related allegations.

        Ms. Minnig also alleged fraud as a basis for setting aside the approval order. She
claimed that she never gave Mr. Smith authority to represent her in, or negotiate a
settlement of, the back claim. She also asserted that the inclusion of settlement papers on
her back claim at the approval hearing constituted fraud because she had no reason to
expect that Mr. Smith would fail to follow her instruction against negotiating the back
claim. She also alleged that she did not expect to address the back claim at the BRC and
approval hearing because she believed an employee could not settle a claim before
attaining maximum medical improvement for the underlying injury.

         In support of summary judgment, Walmart relied on the affidavits of Attorneys
Smith and Maddox to negate Ms. Minnig's alleged grounds for reopening her back claim.
On the incapacity issue, both attorneys testified that they personally observed Ms. Minnig
during the BRC and approval hearing and detected no indication of diminished mental
capacity.6 In fact Mr. Smith testified, "I did not coerce, mislead or otherwise force or
control Ms. Minnig's actions or decision." Walmart also submitted the sworn report of a
physician who concluded, after performing a review of records, that Ms. Minnig did not

settlements and her waiver of the right to trial.
5
  The Court followed the same procedure in approving the wrist settlements, except that, in the wrist settlements, it
personally asked Ms. Minnig the questions on the questionnaires and obtained her initials after she answered the
~uestions .
 Ms. Minnig objected to the admission of the affidavits on the ground the attorneys were not qualified to assess her
mental capacity. The Court overrules the objection on the ground that lay witnesses can testify as to rationally based
perceptions from personal observation. Tenn. R. Evid. 701(a)(l) (2019).

                                                          3
suffer from PTSD or operate under mental incapacity at the time she participated in the
BRC and approval hearing.

        Regarding the fraud issue, Mr. Smith conceded that, at one point before the BRC,
Ms. Minnig discharged him from representing her on the back claim. However, he
testified that, before the date of the BRC, Ms. Minnig "had asked me to agree to represent
her in all three (3) of her pending workers' compensation claims and I agreed."

       On February 6, 2020 Ms. Minnig filed numerous responses to the summary
judgment motion.7 She referenced Attorney Smith' s letter to support the premise that she
did not expect or authorize him to negotiate the back claim. She provided unsworn
descriptions of the level, extent, and manifestations of her alleged PTSD. She cited
numerous statutory provisions outside the Workers' Compensation Law in support of her
fraud position. Finally, on the day of the hearing, she filed a document from the
Veteran's Administration that purported to indicate the agency's determination of total
disability on the basis of PTSD. 8

                                                        Analysis

       The 2013 Reform Act conferred upon workers' compensation judges the authority
to approve settlements of workers' compensation claims for injuries arising on and after
July 1, 2014. Tenn. Code Ann. § 50-6-240(a) (2019). This subsection provides that the
written instrument by which the Court memorializes approval of a settlement becomes a
judgment.

        In Johnson v. Pilgrim's Pride, Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 20, at
*8-13 (Apr. 27, 2016), the Appeals Board recognized two post-judgment motions by
which a party can challenge a workers' compensation judge's approval order: a motion
to reconsider under Tennessee Rule of Civil Procedure 59.04 and a motion for relief from
a judgment under Rule 60.02. The Court considers that Ms. Minnig's petition falls under
the latter as she seeks to set aside the judgment approving her settlement and proceed to
trial on her back claim.

      In Payne v. D & D Elec., 2017 Tenn. LEXIS 215, at *7-8 (Tenn. Workers' Comp.
Panel Apr. 18, 20 17), the Supreme Court set forth the following standard governing
consideration of a summary judgment motion in a workers' compensation claim:

                 A party who moves for summary judgment, but who does not
          bear the burden of proof at trial, may satisfy its burden of production

7
  Walmart objected to these filings because they were made one day after Ms. Minnig's deadline for filing responses·
The Court overrules the objection because Walmart's thorough and vigorous response to the filings indicates it
suffered no prejudice due to the late-filing.
8
  The Court sustains Walmart' s hearsay objection on this letter.

                                                         4
        under Rule 56 either by "affirmatively negating an essential element of
        the nonmoving party's claim" or by showing ''that the nonmoving
        party's evidence at the summary judgment stage is insufficient to
        establish the nonmoving party's claim or defense[.]" The nonmoving
        party must demonstrate the existence of specific facts in the record that
        could lead a rational trier of fact to fmd in favor of the nonmoving party.

      (Internal citations omitted.)

      The dispositive issue for summary judgment is Ms. Minnig's request for relief
from the judgment approving her back settlement. Rule 60.02 provides the following
grounds for seeking relief from a judgment:

      (1) mistake, inadvertence, surprise or excusable neglect;
      (2) fraud (whether heretofore denominated intrinsic or extrinsic),
      misrepresentation, or other misconduct of the adverse party;
      (3) the judgment is void;
      (4) the judgment has been satisfied, released or discharged ... ; or
      (5) any other reason justifying relief from the operation of the judgment.

       Ms. Minnig argues two factual bases for relief under Rule 60.02. The first is that
mental confusion from PTSD prevented her from knowing that she settled her back
claim. On this allegation, Walmart presented affidavits from eyewitnesses who
interacted with Ms. Minnig during the settlement process and did not observe any mental
incapacity. It also provided a sworn report from a physician who concluded that she did
not suffer from PTSD or mental incapacity at the time she participated in the BRC and
approval hearing. Ms. Minnig countered Walmart's submissions by offering unsworn
descriptions of her alleged mental condition at the time of the BRC and approval hearing.

        The Court holds that Walmart's evidentiary submissions negated Ms. Minnig's
allegation that she operated under mental incapacity at the approval hearing. This
evidence shifted the burden to Ms. Minnig to demonstrate the existence of facts in the
record that could lead the Court to rule in her favor. Ms. Minnig failed to provide
evidence on which the Court could rule that she suffered from mental incapacity at the
time of the BRC and approval hearing. She cannot establish mental incapacity by her
own comments, and she offered no medical or psychiatric proof of incapacity. See
Thompson v. Comcast Corp., 2018 TN Wrk. Comp. App. Bd. LEXIS 1, at *31 (Jan. 30,
20 18), holding that a court cannot find compensability based on an lay testimony alone,
as it cannot make independent medical determinations without expert medical proof.
Thus, Walmart is entitled to summary judgment on her claim that the Court should set
aside the approval order because of her mental incapacity.



                                             5
        The Court now moves to the second issue alleged by Ms. Minnig, fraud. In Brown
v. Birman Managed Care, Inc., 42 S.W.3d 62, 66-67 (Tenn. 2001), the Supreme Court set
forth the elements of actionable fraud as follows:

                When a party intentionally misrepresents a material fact or
        produces a false impression in order to mislead another or to obtain an
        undue advantage over him, there is a positive fraud. The representation
        must have been made with knowledge of its falsity and with a fraudulent
        intent. The representation must have been to an existing fact which is
        material and the plaintiff must have reasonably relied upon that
        misrepresentation to his injury.

Also, a party alleging fraud must set forth the elements of the fraud "with particularity."
Tenn. R. Civ. P. 9.02 (2019).

       Here, Ms. Minnig did not allege an intentional misrepresentation by Attorney
Smith or by any Walmart representative that meets the description of fraud set forth
above. At most, she established an issue as to whether she gave Mr. Smith authority to
represent her in her back claim. However, she does not attribute to Mr. Smith any false
representations made with intent to defraud her. In fact, she claimed that she did not
recall what she and Mr. Smith discussed during the approval hearing. For this reason, the
Court dismisses Ms. Minnig's allegations of fraud on summary judgment.

       Finally, the Court holds Walmart is entitled to summary judgment because Ms.
Minnig's motion to set aside was untimely. Rule 60.02 requires a party to file a motion
seeking relief under grounds (1) and (2) "not more than one year after the judgment,
order or proceeding was entered or taken." Ms. Minnig's allegations of mental
incapacity and fraud fall under Rule 60.02 (1) and (2). However, she did not petition for
relief on these grounds until more than four years after the Court entered the approval
order. Although she claims she filed within one year after she discovered that she settled
her back claim when reading her settlement papers, the Court rejects her position.
Namely, Ms. Minnig did not submit evidence of mental incapacity or fraud that would
support relief from the settlement order based on such late reading of papers that she
signed herself to obtain settlement proceeds.

      Pursuant to Tennessee Compilation Rules and Regulations 0800-02-21-.06, the
Court assesses the $150.00 filing fee to Walmart to be paid to the Court Clerk within five
business days of this order becoming fmal, for which execution may issue if necessary.




                                             6
       IT IS ORDERED.

       ENTERED February 14, 2020.




                                    Judge Thomas Wyatt
                                    Court of Workers' Compensation Claims



                             CERTIFICATE OF SERVICE

       I certify that a copy of this Order was sent as indicated on February 14, 2020.

Name                    Certified     First   Email Service sent to:
                        Mail          Class
                                      Mail
Katalin Minnig                          X         X    Erdelyikatalin42@yahoo.com
Employee                                               141 Lovin Farm Road
                                                       Vonore, 1N 37885-6374
Celeste Watson                                X        celeste@cmwatsonlaw.com
Employer Attorney




                                                  ~~
                                           Penny Shrum, ourt Clerk
                                           WC.Cou rtClerk@tn.gov




                                              7
                        Cmnpensation 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: "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 lndigency (form available on the Bureau's
      website or any Bureau office) seeking a waiver of the 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 tbe filing fee or file the Affidavit of lndigency will
      result in dismissal ofyour 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 Bearing
Order must be rmal and you must comply with tbe Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal witb the Appeals Board, the trial court's
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann.§ S0·6-239(c)(7).


For self-represented litigants: Help from an Ombudsman is available at 800·332·2667.
                                                 NOTICE OF APPEAL
                                        Tennessee Bureau of Workers' Compensation
                                          www.t!l.g!N/I/torklbrce/lnjui'li!s-at-wrir.k/
                                          wc.courtclerk@itn.gov 11·800-332-2667

                                                                                          Docket No.: _ _ _ _ __ _ _ __

                                                                                          State File No.:---- - - -- -
                                                                                          Date of Injury:------ - - -



         Employee

         V.




         Employer


Notice is given that.,_ __ _ _ _ _ __ _ _ __                  -=-------.. . . .----------
                         [List name(s) of oil appealing party(ies). Use separate sheet If necessary.]

appeals the following order(s} of the Tennessee Court of Workers' Compensation a aims to the
Workers' Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):

0 Expedited Hearing Order filed on ·.,..--- - - -- -             0 Motion Order filed on - -- - - - - - -

0 Compensation Order filed oil_ _ _~----                        0 Other Order filed on._ __ _ _ _ _ __

issuedbyJudge _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~

Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:




Parties
Appellant(s) (Requesting Party): _ _ _ _ _ _ _ _ _ _ _ __ _ _ _....;· 0 EmployerOEmployee
Address:                                                      Phone: ~·~-------
Email: _ __ _ _ _ _ _ _ _ __ __ _ _ __ _~-----
Attorney's Name: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ BPR#: - - - - - - - - - --
Attorney's Email:                                                                           Phone:----- - -- - -
Attorney's Address·: - - -- -- - - - - - - -- - -- - - - - - - - - -- --=----- -=-
                             • Attach an additional sheet for each additional Appellant •

lB-1099 rev. 01{20                                  Page 1 of2                                              RDA 11082
Employee Name: _ _ _ _ _ _ _ _ _ _ _ _ _ _ Docket No~-~-~----Date of lnj.: - -- --



Appelfee(s) (Opposing Party}; -~-"-----'----------------0 Employer 0Employee
Appellee's Address:-                                 Phone:---- - -- - -
Email: _ _ _ _ __ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ __
AttorneysName; ____ _ _ _ _ _ _ __ _ _ _ _______ BPR#: ______________
Attorney's Email:                                     Phone: - - - - - - - - - -
Attorney's Address; _ __ _ __ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
                             *Attach an additional sheet for each additional Appellee •




                                            CERTIFICATE OF SERVICE


I,                                                                            , certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mall, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the             day of                                               20 __




                                                           {Signature of appellant or attorney for appellant]




LB-1099 rev. 01/20                               Page2 of2                                         RDA 11082
                                 Tennessee Buru1u ot Worke,.• Compenutlon
                                        220 French Landing Drtve, 1-8
                                          Nuhvllle, TN 37Za-1DOZ
                                                   800-332·2117

                                           AmDAVIT OF IJifDIGENCV

 I,                              _                - hawing been duly swom aecoidlng to IIIW, make oath lhal
 because of my pavetty, I am uMble tb bear the costs ot this appeal and raquaat thai the filing fee to appeal be
 waived. lhe following facts support my poverty.                                      ·
 1. Full Name:._ _ _ _ _ _ _ _ _ __
                                                           2. Address:--- - - - - -- - -
3. Telephone Number: - - - - - - - - - ,:                  4. Date of   Birth:--- - - -- - -"'"
5. Names and Ages of All Ol!f)endent&:

         _....::.....__ _ _ _ _....;.....,_ _ _ ___....._ RelatiDflBhip; - - - - - - - - - - - - -

        - - - - - - - - - - - - - - Rallltlonshlp; ________.,--_ _ _ __

        - - - - - - - - - - - - - R e l a t i o n s h i p ! _ _ _ _ _ _ _ _ __

        ---~-----------R•.Uo~~-~~----------~--
6. I am employed by: - - - - - - - - - - -- - --                          -------'----

        My employer'• addresa Is; - -- - - - - - - - - -- - - - --=--- -
        My employer's phone number Is:-----'---""----- - - - - - - - --
7. My present monthly household income, after federal income and aoclalaecurtty taxes ar11 daducted, ia:
$ _ _ _ _ _ __


B. I receive or eJCPed to receiVe money from the following !IOUI'Ce6:

        AFDC             $            per month            beginning
        SSI              $            per month            beginning
        Retlrument       $            per month            ~gln.nln;g
        Dlsablllly       $            per month            beginning
        Unemployment $                per month            beginning.
        Worker's Comp.$               per month            beginning
        Other            $            per month            beginning



LB-11 08 (REV 111l5)                                                                               RDA 11082
  9. My expenses sra:

          Rent/House Payment$ _ __         par month    MedlcaiiiJeniBI I              per month

          Groceries       $ _ __     per month          Telephone      s               parmanth
          Eleclrlclty     $ - - - per month             SChool Supplle& $              per month
          Water           s_ _ _     pill' monll!       Clalhi'lg      $               per month
          Gae
          TransportaUon
                          $ _ __     per month
                          s _ __ per month
                                                        Child C8ra
                                                                       •
                                                        Child Suppott $ _
                                                                                       parmonll'l
                                                                                       per month
          Car             $._ __     per month
          Olhar           $ _ __ per month {deecriba:


 10. Assets:

         AUIDmobile          $ --,---~                  (FMV) -     - - - --       -    -   -
         CheddnW$avlngs Acct $ ·______
         House                  $ .___ __
                                                        (FMV)   -~~----­
         Other
                                '- - --                 ~-;~-----------
 11 . My debts are:

         ~mountOWud                      ToVI.tlom

         '.·- --,::---- -- -




I heNby dac:laN undar the pan11ly af pef1ury that tile fol'8golng anaw... .,. tru.. cornet, and COIIIPiete
and that I am flnanciiJJy unable ro pay U. cost. ofthla 1p,_1.




APPEL CANT


Sworn and aublcribed before me, a notary public, thla

_ _ _ day of _ __ _ __ _ _ _ --", 20'----'



NOTARY· PUBLIC

My Commission E~!,__ _..,.__,___ _



LB-11 08 (REV I 111 S)                                                                             RDA 11082
