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

ARTHUR MOORE,                               )
         Employee,                          )   Docket No. 2015-06-0073
                                            )
 v.                                         )   State File No. 99499-2014
                                            )
 BF NASHVILLE, d/b/a WENDY’S,               )   Judge Joshua Davis Baker
          Employer.                         )
                                            )

                    ORDER GRANTING MOTION TO DISMISS

      The Court convened telephonically on April 19, 2016, for hearing of a Motion to
Dismiss filed by the employer, BF Nashville d/b/a Wendy’s, pursuant to Rule 41.02 of
the Tennessee Rules of Civil Procedure. For the reasons provided, the Court grants
Wendy’s motion and dismisses Mr. Moore’s claim.

                              Relevant Factual Background

        Arthur Moore is a forty-seven-year-old resident of Davidson County, Tennessee.
On February 23, 2015, he filed a Petition for Benefit Determination (PBD) wherein he
alleged he developed Dengue Fever, or trench foot, in the course and scope of his
employment for Wendy’s. Mr. Moore did not have an attorney when he filed the PBD.
He later hired attorney David Kittrell to represent him, and Mr. Kittrell filed a request for
initial hearing.

       On August 6, 2015, the Court entered an initial hearing order requiring the parties
to complete lay witness depositions by October 5, 2015, to complete post-discovery
mediation by October 13, 2015, and to participate in a status conference on October 14,
2015. At the status conference, the parties informed the Court they failed to complete
mediation due to a “misunderstanding” of the Court’s instruction. The Court scheduled
another status conference for November 14, 2015, and instructed the parties to complete
post-discovery mediation prior to the conference.
        The parties attended mediation with a workers’ compensation mediator as ordered
by the Court. During the mediation, Mr. Moore severed his relationship with Mr.
Kittrell. He also refused to continue the mediation without counsel. Mr. Kittrell
withdrew from the case.

       After the parties failed to complete mediation, the Court set the matter for another
status conference on January 19, 2016. When Mr. Moore failed to attend, Wendy’s
moved to dismiss his claim for failure to prosecute.

        While considering the motion, the Court reviewed the clerk’s file and noticed the
mail setting the January 19 teleconference did not reach Mr. Moore. The Court denied
Wendy’s motion and sent a copy of the denial order to Mr. Moore’s correct address. In
that order, the Court set a status conference for February 29, 2016. Due to a scheduling
issue, the status conference had to be moved to April 4, 2016. When moving the status
conference, the Court determined the status conference should, instead, be an initial
hearing.

       On March 1, 2016, the clerk sent Mr. Moore a docketing notice, which provided
the time of the initial hearing teleconference, via certified mail. The return receipt from
the United States Postal Service (USPS) confirmed the postal carrier delivered the
docketing notice to Mr. Moore’s residence on March 4, 2016. Additionally, the Court’s
staff attorney, Andrea Craig, spoke with Mr. Moore on March 4, 2016, about the
scheduled initial hearing. Accordingly, Mr. Moore received ample notice of the hearing.

       Despite this notice, Mr. Moore failed to attend the April 4, 2016 teleconference.
Ms. Craig attempted to contact Mr. Moore via telephone when he failed to call the
teleconference line. However, the telephone number Mr. Moore provided to the Court in
his Petition for Benefit Determination was disconnected.

       When Mr. Moore failed to call the teleconference line for the initial hearing,
Wendy’s renewed its Motion to Dismiss the claim for failure to prosecute. The Court
entered an order notifying Mr. Moore that the Court would hear Wendy’s Motion to
Dismiss via teleconference on April 19, 2016, at 2:00 p.m. (CDT). The order also
informed Mr. Moore the Court would dismiss his case if he failed to call in and
participate in the hearing. The clerk sent a copy of the order to Mr. Moore via certified
mail at the address he provided in his PBD, the only address the Court has for Mr. Moore.
The clerk previously sent Mr. Moore documents at this same address. The USPS marked
some of the documents “return to sender,” and sent them back to the clerk; Mr. Moore
received some of the documents. The USPS tracking notes indicate Mr. Moore was not
available to sign for the letter, so the postal carrier left notice on April 12, 2016, for Mr.
Moore to retrieve the order from the post office. At the time of the hearing, Mr. Moore
had not retrieved the order.
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        The Court convened via telephone on April 19, 2016, at 2:00 p.m. (CDT) to hear
Wendy’s Motion to Dismiss. Mr. Moore did not call the teleconference line to participate
in the hearing.

                                                     Analysis

       Wendy’s moved to dismiss Mr. Moore’s claim for failure to prosecute.1 Rule
41.02(1) of the Tennessee Rules of Civil Procedure Rule provides that a party may, “for
failure of the [employee] to prosecute or to comply with these rules or any order of
course, the [employer] may move for dismissal of an action or of a claim against the
[employer].” Tenn. R. Civ. P. Rule 41.02(1).

       The Court agrees Mr. Moore has failed to take appropriate action to advance this
claim. The Court ordered the parties to complete post-discovery mediation by November
14, 2015, so the case could be set for a compensation hearing. Mr. Moore appeared for
the mediation but refused to participate after he severed the relationship with his attorney.
Thereafter, the Court set several status conferences in an attempt to get this case back on
track and set the matter for trial. Despite receiving notices of status conferences, Mr.
Moore failed to appear for any of them. Additionally, he never contacted Wendy’s or the
clerk to explain his absence.

        While it appears Mr. Moore failed to retrieve the order setting the April 19 Motion
to Dismiss hearing, the clerk sent the order to his last known address. Mr. Moore simply
needed to collect the order from the post office and call the teleconference line to
participate in the hearing at the appropriate time. Furthermore, although Mr. Moore
failed to retrieve the order prior to the hearing date, he would have, nonetheless, known
the time and date of the hearing if he had attended the April 4, 2016 status conference.
Mr. Moore knew the status conference date and time because the Court’s staff attorney
spoke with Mr. Moore prior to the status conference. Finally, if Mr. Moore moved from
his previous address and no longer receives mail there, it is his responsibility to notify the
Court and Wendy’s of the address change in order to receive notices and orders.

       Mr. Moore filed this claim and has the sole duty to prosecute it. In this Court’s
view, his repeated failure to attend teleconferences and motion hearings, and his refusal
to participate in Court ordered mediation indicates a desire to cease prosecution of this


1
 Wendy’s also moved to dismiss Mr. Moore’s claim for failing to file a request for expedited hearing. It asserted
Mr. Moore’s failure to request an expedited hearing and file a supporting affidavit violated Tennessee Compilation
Rule and Regulation 0800-02-21-.14 (2015). Wendy’s assertion is mistaken. Tennessee Code Annotated section
50-56-239(a) (2015) only requires that a party file a request for hearing within sixty days after issuance of the
Dispute Certification Notice. Because Mr. Moore filed a request for an initial hearing, he satisfied this requirement.
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case. Because Mr. Moore failed to prosecute his case and displayed no current intention
to engage in this litigation, the Court dismisses his claim with prejudice.

IT IS, THEREFORE, ORDERED as follows:

      1. Mr. Moore’s claim against Wendy’s for workers’ compensation benefits is
         dismissed with prejudice pursuant to Rule 41.02 of the Tennessee Rules of
         Civil Procedure.

      2. The Court assesses the $150 filing fee in this claim to Wendy’s and/or its
         workers’ compensation carrier pursuant to Rule 0800-02-21-.07 (2015) of the
         Mediation and Hearing Rules of the Tennessee Bureau of Workers’
         Compensation. Wendy’s or its insurance 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.

ENTERED ON THIS THE 21ST DAY OF APRIL, 2016.



                                 _____________________________________
                                 Judge Joshua Davis Baker
                                 Court of Workers’ Compensation Claims




Right to Appeal:

      Tennessee Law allows any party who disagrees with this Compensation Order to
appeal the decision to the Workers’ Compensation Appeals Board. To file a Notice of
Appeal, you must:

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

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

   3. Serve a copy of the Request for Appeal upon the opposing party.
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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 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 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).

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
   (15) calendar days to submit briefs to the Appeals Board for consideration. See
   Tenn. Comp. R. & Regs. 080002-22-.02(3).




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                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing was sent to the
                                                                        21st day of
following recipients by the following methods of service on this the ____
April2016.

Name                 Certified   Via       Via     Service sent to:
                      Mail       Fax      Email
Arthur Moore                                      2333 Rosa Parks Blvd., Apt. 201
                                                   Nashville, TN 37228
John Barringer,                                   jbarringer@manierherod.com
Counsel for
Wendy’s and
Gallagher Bassett




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




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