            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD
                 (HEARD APRIL 26, 2018 AT KNOXVILLE)

Lisa Yeaman                                ) Docket No. 2015-03-0237
                                           )
v.                                         ) State File No. 45169-2015
                                           )
Kindred Health Care, et al.                )
                                           )
                                           )
Appeal from the Court of Workers’          )
Compensation Claims                        )
Lisa A. Lowe, Judge                        )

                    Affirmed and Remanded - Filed May 24, 2018

The employer in this interlocutory appeal filed a motion to dismiss the employee’s claim
for an alleged failure to prosecute. Although acknowledging that the employee’s two-
year delay in pursuing her claim was “not ideal, nor encouraged,” the trial court denied
the employer’s motion to dismiss, determining that the employee timely filed her claim
and that a mediator’s notice of the purported withdrawal of the employee’s petition did
not voluntarily dismiss the claim. The employer has appealed, asserting the trial court
erred by failing to address whether the employee’s claim should be dismissed for her
failure to prosecute and that allowing the claim to continue violates public policy. We
affirm the trial court’s denial of the employer’s motion to dismiss and remand the case.

Judge David F. Hensley delivered the opinion of the Appeals Board in which Judge
Timothy W. Conner joined. Presiding Judge Marshall L. Davidson, III, filed a dissenting
opinion.

W. Troy Hart and Charles E. Pierce, Knoxville, Tennessee, for the employer-appellant,
Kindred Health Care

Joshua J. Bond, Knoxville, Tennessee, for the employee-appellee, Lisa Yeaman

                         Factual and Procedural Background

      Lisa Yeaman (“Employee”) suffered a work-related injury in 2012 while
employed by Kindred Health Care (“Employer”). The claim was accepted as
compensable, and Employer provided all appropriate workers’ compensation benefits.

                                           1
The parties subsequently settled the claim, and the settlement provided for the
continuation of Employee’s medical benefits.

        In June 2015, Employee filed a request for reconsideration of the earlier settlement
pursuant to Tennessee Code Annotated section 50-6-242 (2012) and a petition for benefit
determination in which she alleged a new March 1, 2015 date of injury for an aggravation
of a pre-existing condition. Shortly after filing her petition, she notified the Bureau of
Workers’ Compensation (“Bureau”) that she wanted to withdraw her petition. As a
result, a mediator with the Bureau issued and filed a “Notice of Withdrawal of Petition
for Benefit Determination” on June 26, 2015, which noted that the June 12, 2015 petition
had been filed “in order to toll the statute [of limitations].” The notice additionally stated
that the issues in the case were not ready for mediation and that Employee “desires to
withdraw the Petition.” The notice advised that “[i]f additional disputes arise in the
course of this claim, either party may file an amended Petition for Benefit Determination
utilizing the same docket number and state file number and mediation will be scheduled.”
No further action was taken in the case until Employee filed a new petition for benefit
determination on August 22, 2017, utilizing the same docket number and state file
number and identifying the same date of injury as the petition she filed in June 2015.

        Employer responded by filing a motion to dismiss for failure to prosecute on
September 7, 2017. 1 The following day, the trial court issued an order noting that the
court “does not have jurisdiction to address a dispositive motion until the Mediating
Specialist issues a [dispute certification notice].” The order referred the case for
mediation, stating Employer’s motion to dismiss “shall be held in abeyance until the
Court receives the [dispute certification notice].” On November 7, 2017, the dispute
certification notice was filed. On November 20, 2017, Employee filed her response to
Employer’s motion to dismiss, contending she had not nonsuited her claim and asserting
her claim was “filed timely, and [she] is ready, willing and able to prosecute her
claim . . . on the merits.”

       On January 9, 2018, the trial court entered an order noting Employer’s arguments
that Employee’s two-year delay prejudiced its ability to investigate the claim and that
allowing the case to continue “will result in the Court’s acquiescence of [Employee’s]
engagement in ‘on again/off again’ litigation.” While recognizing that “a two-year delay
is not ideal, nor encouraged,” the court denied the motion to dismiss and stated that
Employee “timely filed her [petition for benefit determination], and its withdrawal does
not voluntarily dismiss her claim.” Employer has appealed the denial of its motion to
dismiss for failure to prosecute.

1
  Employer’s motion alternatively requested that the court dismiss Employee’s claim on the basis it was
barred by the statute of limitations. Although Employer’s brief on appeal addressed the statute of
limitations issue, counsel for Employer conceded the issue in oral argument in light of our opinion in
Taylor v. American Tire Distributors, No. 2015-06-0361, 2017 TN Wrk. Comp. App. Bd. LEXIS 48
(Tenn. Workers’ Comp. App. Bd. Aug. 15, 2017). Thus, we need not address the issue here.
                                                  2
                                   Standard of Review

        A trial court’s disposition of a motion to dismiss for failure to prosecute is
reviewed under an abuse of discretion standard. Fischer v. Sverdrup Tech., Inc., No.
M2010-01095-WC-R3-WC, 2011 Tenn. LEXIS 574, at *5 (Tenn. Workers’ Comp. Panel
June 7, 2011). This standard prohibits an appellate court from substituting its judgment
for that of the trial court. An appellate court will find an abuse of discretion only if the
trial court “applied incorrect legal standards, reached an illogical conclusion, based its
decision on a clearly erroneous assessment of the evidence, or employ[ed] reasoning that
causes an injustice to the complaining party.” Wright ex rel. Wright v. Wright, 337
S.W.3d 166, 176 (Tenn. 2011). In reviewing a trial court’s exercise of discretion, we
presume the trial court’s decision is correct and review the evidence in a light most
favorable to upholding the decision. Lovelace v. Copley, 418 S.W.3d 1, 16-17 (Tenn.
2013). “[W]e will not substitute our judgment for that of the trial court merely because
we might have chosen another alternative.” Johnson v. Walmart, No. 2014-06-0069,
2015 TN Wrk. Comp. App. Bd. LEXIS 18, at *17 (Tenn. Workers’ Comp. App. Bd. July
2, 2015). That said, discretionary decisions “require a conscientious judgment, consistent
with the facts, that takes into account the applicable law.” White v. Beeks, 469 S.W.3d
517, 527 (Tenn. 2015). Moreover, we are obligated to construe the workers’
compensation statutes “fairly, impartially, and in accordance with basic principles of
statutory construction” and in a manner that does not favor either the employee or the
employer. Tenn. Code Ann. § 50-6-116 (2017).

                                         Analysis

       Employer contends the trial court erred in denying its motion to dismiss “without
addressing the Employee’s failure to prosecute her claim.” Employer additionally asserts
Employee’s case should be dismissed “as allowing it to go forward would be against
public policy.”

        Initially, we note the trial court did address Employer’s motion to dismiss, stating
“the Court denies [Employer’s] Motion to Dismiss.” We perceive Employer’s argument
as asserting the trial court failed to express its reasoning for denying its motion beyond
the court’s acknowledgment that “a two-year delay is not ideal, nor encouraged.” While
the trial court could have been more explicit in its reasoning for denying Employer’s
motion, we find implicit in the trial court’s order its reliance on Employee’s expressed
intent to prosecute her claim to a decision on the merits. As is well established,
“dismissals based on procedural grounds like failure to prosecute . . . run counter to the
judicial system’s general objective of disposing of cases on the merits.” Henry v. Goins,
104 S.W.3d 475, 481 (Tenn. 2003).

       Employer based its motion to dismiss on Rule 41.02(1) of the Tennessee Rules of
Civil Procedure, which provides, in part, that a defendant may move for dismissal of an

                                             3
action or of any claim against it “[f]or failure of the plaintiff to prosecute.” In its brief,
Employer points out that Rule 41.02 is necessary to enable courts to manage their dockets
and to protect defendants from plaintiffs who are unwilling to prosecute their claims.
Employer likewise acknowledges that a trial court’s decision under Rule 41.02 is
reviewed under an “abuse of discretion” standard. Employer states that Employee took
no action in this case for over two years and suggests Employee received substantial
medical care during those two years. It argues that, as a result, “Employer has been
prejudiced as it was not able to investigate the alleged injury or the medical necessity or
causality of medical treatment when those issues were ripe.” Employer asserts that, as a
result, “the principal issues in this matter have become stale and the underlying facts are
now virtually impossible to investigate.” However, we conclude the responsibility for
any prejudice resulting from the two-year delay can be attributable to either party.

        Tenn. Comp. R. & Regs. 0800-02-21-.02(17) (2016) allows “[a]ny party [to] file a
petition for benefit determination . . . with the Bureau at any time after a dispute arises in
a claim for workers’ compensation benefits.” Here, Employee began her claim by filing
a petition on June 12, 2015. As noted in Employer’s motion to dismiss filed two years
later, the petition “alleged the Employee aggravated a preexisting compensable injury and
listed the new date of injury as March 1, 2015.” The mediator’s Notice of Withdrawal of
Petition for Benefit Determination was filed fourteen days after the initial petition was
filed. Although we have previously stated that a mediator’s notice of withdrawal has no
legal effect, this notice identified the parties and indicated it was sent to Employer, its
attorney, and its insurer. See Taylor, 2017 TN Wrk. Comp. App. Bd. LEXIS 48, at *9
(“[A] ‘notice of withdrawal’ issued by a mediator has no legal effect.”). The notice did
not signal a resolution or conclusion of the claim and clearly contemplated the claim
would continue in due course.

       Following the filing of the mediator’s notice of withdrawal of Employee’s
petition, neither party filed any documents with the Bureau in connection with
Employee’s claim until more than two years later, when Employee filed a new petition
for benefit determination. In that two-year interim, either party could have investigated
the circumstances of Employee’s claim and could have requested medical or other
records from the other party. Either party could have filed a new or amended petition for
benefit determination with the Bureau seeking relevant documents and could have filed a
discovery motion to obtain documentation or any other permissible discovery. Indeed,
the notice filed by the mediator in June 2015 advised that “either party may file an
amended Petition for Benefit Determination.”

       The record on appeal includes no documentation or information suggesting either
party sought any information from the other subsequent to the mediator’s notice.
Likewise, the record is silent as to any action taken by Employer to dismiss Employee’s
claim until Employee filed a new petition on August 22, 2017. Although delays as
occurred in this case are strongly discouraged, the delay here did not prevent Employer

                                              4
from investigating Employee’s claim, her alleged injury, or the medical necessity or
causality of medical treatment at any point in time after the mediator issued the notice of
withdrawal of Employee’s petition. It was only after the filing of Employee’s second
petition for benefit determination that Employer sought to dismiss Employee’s claim.
Accordingly, we find nothing in the record to support an assertion that the trial court
abused its discretion by denying Employer’s motion to dismiss for failure to prosecute.

        Finally, Employer contends that allowing this claim to continue is contrary to
public policy. It asserts that if the claim is allowed to continue, “there is effectively no
limit to the amount of time that can pass before a withdrawn [petition for benefit
determination] is refiled.” While delays as occurred here are strongly discouraged, the
current process wherein a judge is not assigned to a case until a motion or a dispute
certification notice is filed leaves it to the parties, in instances such as are presented here,
to initiate litigation activities. In this case, either party could have initiated action
resulting in the case being assigned to a judge. The Employer eventually did so by filing
a motion to dismiss, but only after Employee filed the second petition for benefit
determination. Again, we find nothing in the record to support an assertion that the trial
court abused its discretion by denying Employer’s motion to dismiss.

                                         Conclusion

       For the foregoing reasons, we hold that the trial court did not abuse its discretion
in denying Employer’s motion to dismiss for failure to prosecute. Accordingly, the trial
court’s order is affirmed and the case is remanded for any further proceedings that may
be necessary.




                                               5
            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD
                 (HEARD APRIL 26, 2018 AT KNOXVILLE)

Lisa Yeaman                                   ) Docket No. 2015-03-0237
                                              )
v.                                            ) State File No. 45169-2015
                                              )
Kindred Health Care, et al.                   )
                                              )
                                              )
Appeal from the Court of Workers’             )
Compensation Claims                           )
Lisa A. Lowe, Judge                           )

                        Dissenting Opinion - Filed May 24, 2018

Marshall L. Davidson, III, Presiding Judge, dissenting.

       I respectfully dissent.

       First, this appeal involves one simple question: why did this case sit idle for two
years and two months with no activity? Neither the record nor the trial court’s order
addresses this pivotal question. I would remand the case for an answer.

        Second, in its order denying the employer’s motion to dismiss, the trial court states
that “the Court holds that Ms. Yeaman timely filed her PBD, and its withdrawal does not
voluntarily dismiss her claim. Therefore, the Court denies Kindred’s Motion to
Dismiss.” Thus, while the trial court’s order makes clear the motion was being denied to
the extent it was based on timeliness grounds, the order does not, other than allude to the
employer’s argument, address the failure to prosecute aspect of the employer’s motion to
dismiss. Rather than address or even acknowledge this problem, the majority’s analysis
focuses on a novel concept, i.e., what the employer should have done to keep the
employee’s claim moving forward.

       Third, orders lacking an explanation of the grounds upon which the decision is
based require appellate courts to “perform the equivalent of an archeological dig [to]
endeavor to reconstruct the probable basis for the [trial] court’s decision.” Church v.
Perales, 39 S.W.3d 149, 157 (Tenn. Ct. App. 2000). Because the basis for the trial
court’s decision is unknown so far as the failure to prosecute is concerned – the sole issue
on appeal – I would remand the case for the trial court to make findings, or to at least

                                             1
address the question, so as to avoid appellate review being reduced to an exercise driven
by assumptions and inferences. Here, for example, the majority has merely inferred the
trial court both considered and accepted that there was a reasonable basis for the lengthy
delay when, in fact, the record reflects neither.

        Fourth, the trial court’s order references the employee’s statement in her brief filed
in that court that she “is ready, willing, and able to prosecute the claim.” This, too, does
nothing to explain why the case sat dormant for more than two years. If a dilatory party
faced with a motion to dismiss need only assert a preference that the case continue in
order to withstand a motion to dismiss, the bar has been set much too low. Providing safe
harbor for parties who may not take the litigation process seriously, and who know that
significant consequences are unlikely if they do not, is inconsistent with the goals of
administering the workers’ compensation system in a “fair, equitable, expeditious, and
efficient” manner. Tenn. Code Ann. § 4-3-1409(b)(2)(A) (2017). See also Smith v. The
Newman Grp., LLC, No. 2015-08-0075, 2015 TN Wrk. Comp. App. Bd. LEXIS 30, at
*16-17 (Tenn. Workers’ Comp. App. Bd. Sept. 21, 2015) (Davidson, J., dissenting).

        Fifth and last, the trial court’s order notes that inactivity for two years “is not
ideal, nor encouraged,” and the majority twice states that delays as occurred in this case
are “strongly discouraged.” I would give meaning to these words and require a party to
provide a reasonable explanation or excuse based on notions of equity, justice, excusable
neglect, misconduct by the adverse party, or some other consideration that would justify a
twenty-six month period of dormancy. This record reveals no explanation or excuse,
much less a reasonable one.

       In the end, we are left with no idea why the employee allowed her claim to lay
dormant for more than two years or why that was deemed acceptable. Unlike my
colleagues, I would remand the case for an answer.




                                              2
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Lisa Yeaman                                                )   Docket No. 2015-03-0237
                                                           )
v.                                                         )    State File No. 45169-2015
                                                           )
Kindred Health Care, et al.                                )
                                                           )
                                                           )
Appeal from the Court of Workers’                          )
Compensation Claims                                        )
Lisa A. Lowe, 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 24th day of May, 2018.
 Name                    Certified   First   Class   Via   Fax       Via     Sent to:
                         Mail        Mail            Fax   Number    Email

 Josh Bond                                                             X     jbond@hdclaw.com
 W. Troy Hart                                                          X     wth@mijs.com
 Charlie Pierce                                                        X     cepierce@mijs.com
 Lisa A. Lowe, Judge                                                   X     Via Electronic Mail
 Kenneth M. Switzer,                                                   X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                   X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov
