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

MARK WILLIAMS,                                    )   Docket No. 2017-06-0883
        Employee,                                 )
v.                                                )
                                                  )   State File No. 14175-2015
YATES SERVICES,                                   )
         Employer.                                )
                                                  )   Judge Joshua Davis Baker

      EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS


       The Court convened on December 12, 2017, for an expedited hearing on Mr.
Williams entitlement to temporary disability benefits and medical benefits.1 Yates
Services argued the statute of limitations bars Mr. Williams’ claim and that he cannot
prove compensability. The Court holds that although Mr. Williams timely filed his
claim, he did not present sufficient proof to demonstrate his likely success at a hearing on
the merits. Therefore, the Court denies his request for temporary disability and medical
benefits.

                                         Claim History

        Mr. Williams testified that, while sorting parts for Yates at the Nissan
manufacturing plant on February 23, 2015, a forklift “pinned” his feet between two
pallets, causing him to fall onto a pallet and injure his left hip. Yates provided a panel the
following day from which Mr. Williams selected American Family Care. Three days
later, he selected Dr. Christian Vissers from another panel. Dr. Vissers diagnosed him
with left-hip pain and released him to return to work on March 4, 2015, without
restrictions or an impairment rating.

       Although he did not submit medical records, Mr. Williams testified he used his
health insurance to obtain treatment for his left hip after Dr. Vissers released him. His

1
 The Dispute Certification Notice also identified permanent disability benefits as a contested issue.
Entitlement to permanent disability benefits, however, cannot be adjudicated at an expedited hearing.
family physician, Dr. Clarissa Arthur, referred him to Dr. David West. Afterward, he
underwent surgery with Dr. Malcolm Baxter followed by physical therapy. He testified
he was off work for roughly three months following his surgery, although he could not
remember specific dates. Yates never paid temporary disability benefits.

       Mr. Williams acknowledged that he had problems with his left hip before
February 23. In March 2014, he began receiving medication and injections for pain in his
pelvis, left hip and femur. Mr. Williams admitted he discussed his intention to have hip
surgery with his doctor in January 2015, ten days before his workplace accident.

       On February 23, 2016, Mr. Williams faxed a “Request for Benefit Review
Conference” (RBC) to the Bureau of Workers’ Compensation. Mr. Williams noted the
filing was for “statute of limitations purposes.” The RBC indicated Mr. Williams’ or his
counsel sent a copy to the opposing party but defense counsel denied that Yate’s received
it.

        Upon receipt by the Bureau, a Bureau employee emailed Mr. Williams’ attorney to
alert him that he needed to file a Petition for Benefit Determination (PBD) because it was
a “new law case.” She attached a blank PBD to the email. Mr. Williams’ counsel did not
file a PBD until May 11, 2017.2

                          Findings of Facts and Conclusions of Law

       As in all workers’ compensation actions, Mr. Williams has the burden to prove the
essential elements of his claim. However, since this is an expedited hearing, Mr.
Williams need only present sufficient evidence from which the Court can determine he is
likely to prevail at a hearing on the merits. McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

         To establish causation, Mr. Williams must prove “to a reasonable degree of
medical certainty that [the injury] contributed more than fifty percent (50%) in causing
the . . . need for medical treatment, considering all causes.” See Tenn. Code Ann. § 50-6-
102(14)(B) (2017). A “reasonable degree of medical certainty” means that “in the
opinion of the physician, it is more likely than not considering all causes, as opposed to
speculation or possibility.” Tenn. Code Ann. § 50-6-102(14)(D). Thus, causation must
be established by expert medical testimony.

     When the employer has voluntarily paid workers’ compensation benefits,
compensation:


2
 While the file stamp indicated filing on May 11, counsel wrote May 12, 2017, as the date he signed the
PBD.

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      shall be forever barred, unless a petition for benefit determination is filed
      with the bureau on a form prescribed by the administrator within one (1)
      year from the latter of the date of the last authorized treatment or the time
      the employer ceased to make payments of compensation to or on behalf of
      the employee.

 See Tenn. Code Ann. § 50-6-203(b)(2). A PBD is “a request for the Bureau to provide
assistance in the resolution of any disputed issues in a workers’ compensation claim . . .
on a form approved by the Bureau.” See Tenn. Comp. R. & Regs. 0800-02-21-.02 (17).
Furthermore, “[a]ll documents filed with the Bureau, including those allowed or required
to be filed electronically, shall be in the form approved by the Bureau.” See id. at 0800-
02-21-.08.

       Here, Mr. Williams sent an RBC to the Bureau within one year of March 4, 2015,
the date of his last authorized treatment with Dr. Vissers. While he did not use the
Bureau’s approved form for his date of injury, form should not be elevated over
substance. Bemis Co. v. Hines, 585 S.W.2d 574, 576 (Tenn. 1977); Murphy v. Johnson,
64 S.W. 894 (Tenn. 1901). Tenn. R. Civ. P. 8.05(1) directs that “[n]o technical forms of
pleading or motions are required.” Additionally, “all pleadings shall be so construed as to
do substantial justice.” See Tenn. R. Civ. P. 8.06. In examining the RBC, Mr. Williams
clearly intended to initiate a legal action, and the RBC provided particularity about the
alleged work injury. It identified Mr. Williams’ employer, the alleged date of his injury,
the purpose of the filing; it also provided an account of his injury, among other details.
Thus, the Court accepts the RBC a valid filing just as if it were filed on the approved
PBD form.

       The Court next examines whether Mr. Williams established the RBC was properly
served upon Yates. Copies of the PBD “shall be served upon all parties to the dispute or
upon their attorneys, if represented.” Service must be accomplished “before filing with
the Bureau or within a reasonable time thereafter.” The “certification of the sender on the
document filed with the Bureau” provides proof of service and “such certification shall
include the name of the person served, the date, the manner of service and the address
where service was made.” See Tenn. Comp. R. & Regs. 0800-02-21-.09.

      Additionally, the Tennessee Rules of Civil Procedure provide the following
concerning the effect of failing to serve a complaint:

      [I]f process remains unissued for 90 days or is not served within 90 days
      from issuance, regardless of the reason, the plaintiff cannot rely upon the
      original commencement to toll the running of the statute of limitations
      unless the plaintiff continues the action by obtaining issuance of new
      process within one year from issuance of the previous process, or if no
      process is issued, within one year of the filing of the complaint.

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See Tenn. R. Civ. P. 3. When reading these rules together, the Court finds that a plaintiff
cannot rely upon the commencement of an action to toll the statute of limitations unless
the plaintiff timely serves a copy of the complaint, or in this instance the RBC, on the
opposing party.

        Here, Mr. Williams’ counsel marked a box on the RBC to certify “a completed
copy of this Request for Benefit Review Conference has been forwarded to the opposing
parties.” Yates, however, denied receiving the RBC and asserted it was not aware of
legal action until receiving a copy of the PBD filed May 11, 2017, which was more than a
year after the RBC filing. The RBC did not indicate the person served, the date or the
manner of service, or the address where service was made. Thus, the Court has serious
doubts that Mr. Williams served the RBC “within a reasonable time” as required by
Tenn. Comp. R. & Regs. 0800-02-21-.09. Despite its doubts, the Court declines to find
the statute of limitations barred his claim.

       Even though Mr. Williams timely filed his claim, the Court finds he did not
present sufficient evidence to demonstrate he is likely to prevail at a hearing on the
merits. Mr. Williams did not introduce any medical testimony or records to establish to a
reasonable degree of medical certainty that his injury contributed more than fifty percent
in causing his need for medical treatment, considering all causes. The authorized treating
physician released Mr. Williams to full duty with no restrictions and did not indicate a
need for further care. The Court denies his request for temporary disability and medical
benefits.

       Finally, the Court finds that Yates did not err in its handling of the claim. It
accepted the claim and provided medical care in a timely manner. Dr. Vissers treated Mr.
Williams and released him. Yates was under no duty to file notice of benefit termination
with the Bureau because it never initiated payment of temporary disability benefits.

IT IS ORDERED AS FOLLOWS:

   1. Mr. Williams’ claim for temporary disability and medical benefits is denied at this
      time.

   2. This matter is set for a Scheduling Hearing on Monday, January 29, 2018, at 9:30
      a.m. (CST). You must call 615-741-2113 or toll-free 855-874-0474 to
      participate in the Hearing. Failure to call may result in a determination of
      issues without your further participation.


ENTERED DECEMBER 19, 2017.


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___________________________________
Joshua Davis Baker, Judge
Court of Workers’ Compensation Claims




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                                   APPENDIX

Exhibits
   1. Medical Records
   2. Affidavit of Mr. Williams’ Counsel
   3. Request for Benefit Review Conference form
   4. Email from Melissa Norris
   5. Choice of Physician form – Dr. Christian Vissers
   6. Certification of Healthcare Provider for FMLA
   7. First Report of Injury
   8. Choice of Physician form – American Family Care
   9. Wage Statement
   10. Affidavit of Bronwen Whisenhunt
   11. Order Denying Benefits dated March 28, 2014

Technical Record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Employer’s Response to Request for Expedited Hearing
   5. Employee’s Motion to Continue
   6. Employer’s Response to Motion to Continue
   7. Order on Motion to Continue




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                             CERTIFICATE OF SERVICE

       I certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on this December _____,
                                                                     19th    2017.

 Name                        Certified    Via        Via    Service sent to:
                              Mail        Fax       Email
 Daniel Marshall,                                     X     Marshallaw2020@gmail.com
 Employee’s Attorney

 John Rucker,                                        X      rrucker@ruckerlaw.com
 Employer’s Attorney




                                   ____________________________________________
                                   Penny Shrum, Court Clerk
                                   Court of Workers’ Compensation Claims
                                   Wc.courtclerk@tn.gov




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