                                                                                        FILED
                                                                                    April 21, 2016
                                                                                       TENNESSEE
                                                                                  WORKERS' COMPENSAT ION
                                                                                     APPEALS BOARD

                                                                                      Time: 2:00 P,M,



             TENNESSEE BUREAU OF WORKERS' COMPENSATION
                WORKERS' COMPENSATION APPEALS BOARD


Deborah Syph                                 )   Docket No. 2015-06-0288
                                             )
v.                                           )
                                             )   State File No. 36614-2015
Choice Food Group, Inc.                      )
                                             )
                                             )
Appeal from the Court of Workers'            )
Compensation Claims                          )
Joshua Davis Baker, Judge                    )


                    Affirmed and Certified as Final - April 21, 2016


Following the entry of an interlocutory order denying workers' compensation benefits,
the employer filed a motion for dismissal of the employee's claim. The trial court
determined it had previously denied benefits "on compensability grounds" and further
found the employee had failed to resolve evidentiary inadequacies or demonstrate a clear
intent and method to do so. As a result, it granted the employer's motion and dismissed
the employee's claim with prejudice. Having carefully reviewed the record, we affirm
the determination of the trial court on different grounds and certify the trial court's order
as final.

Judge Timothy W. Conner delivered the opinion of the Appeals Board; Judge Marshall L.
Davidson, III, and Judge David F. Hensley each filed separate concurring opinions.

Deborah Syph, Nashville, Tennessee, employee-appellant, prose

Michael Haynie, Nashville, Tennessee, for the employer-appellee, Choice Food Group,
Inc.




                                             1
                              Factual and Procedural Background

       Deborah Syph ("Employee"), a resident of Davidson County, Tennessee, was
employed by Choice Food Group, Inc. ("Employer"). Employee alleged that on February
25, 2015, she injured her back lifting large containers of food at work. In response to
Employee's claim for workers' compensation benefits, Employer asserted she had a pre-
existing degenerative condition and did not suffer a compensable aggravation arising
primarily out of and in the course and scope of her employment. Following the filing of a
                                                                                         2
petiti n for benefit determina ion I and the issuance of a dispute certification notice,
Employee filed a request for expedited hearing 3 seeking a panel of physicians.
Thereafter, the parties resolved the issue and an order was entered reflecting Employer's
agreement to provide a panel of physicians.

       Following an evaluation with Dr. Melvin Law, the physician selected from the
panel, Employee filed a second request for expedited hearing seeking additional workers'
compensation benefits. In response, Employer submitted an expert opinion from Dr.
Law, who concluded he was "unable to establish any causation or an apportionment
based on a significant change in her subjective pain or dysfunction" and was "unable to
establish an anatomic change." After an evidentiary hearing, the trial court entered an
order on November 6, 2015 denying Employee's request for temporary disability or
medical benefits. Specifically, the court concluded that "without an opinion linking her
back condition to her work for [Employer], [Employee] is unlikely to prevail at a hearing
on the merits." Employee did not appeal this order.

        Pursuant to Tenn. Comp. R. & Regs. 0800-02-21-.14(3) (2015), Employer filed a
motion to dismiss on November 24, 2015, arguing that the trial court had "denied the
claim on grounds of compensability." See Tenn. Code Ann. § 50-6-239(d)(4) (2015).
Thereafter, the court scheduled a telephonic initial hearing to set discovery deadlines,
schedule any necessary motion hearings, and set a trial date. Employee did not
participate in the initial hearing, during which the trial court set Employer's motion to
dismiss for a hearing on January 5, 2016, did not file a written response to the motion to

I
  A "petition for benefit determination" is "a request for the [BureauJ to provide assistance in the
resolution of any disputed issues in a workers' compensation claim," which may be filed "any time after a
dispute arises." Tenn. Comp. R. & Regs. 0800-02-21-.02( 19) (2015).
2
  A "dispute certification notice" is "[tJhe notice filed by the mediator with the clerk following the
completion of alternative dispute resolution proceedings stating that, following mediation, a dispute
concerning the issues set forth in the notice still exists." Tenn. Comp. R. & Regs. 0800-02-21-.02(10)
(2015).
3
  A "request for expedited hearing" is a request that the court clerk schedule a hearing to determine an
issue regarding temporary disability or medical benefits prior to a hearing that results in a compensation
order. See Tenn. Comp. R. & Regs. 0800-02-21-.02(13), (20) (2015); see also Tenn. Comp. R. & Regs.
0800-01-21-.02( 18) (2015).
                                                    2
dismiss, and did not participate in the hearing on January 5, 2016 concerning the motion
to dismiss. 4

      On January 13, 2016, the trial court entered an order dismissing Employee's claim
with prejudice. The trial court concluded that Employee "failed to address the
evidentiary inadequacies brought to light during the Expedited Hearing," as she did not
"produce an expert opinion to contradict Dr. Law or demonstrate a clear intent to do so."
Employee timely appealed the trial court's order dismissing her claim.

                                        Standard of Review

       The standard of review to be applied by this Board in reviewing a trial court's
decision is statutorily mandated and limited in scope. Specifically, "[t]here shall be a
presumption that the findings and conclusions of the workers' compensation judge are
correct, unless the preponderance of the evidence is otherwise." Tenn. Code Ann. § 50-
6-239(c)(7) (2015). The trial court's decision must be upheld unless the rights of a party
"have been prejudiced because findings, inferences, conclusions, or decisions of a
workers' compensation judge:

        (A)     Violate constitutional or statutory provisions;
        (B)     Exceed the statutory authority of the workers' compensation judge;
        (C)     Do not comply with lawful procedure;
        (D)     Are arbitrary, capricious, characterized by abuse of discretion, or
                clearly an unwarranted exercise of discretion;
        (E)     Are not supported by evidence that is both substantial and material
                in the light of the entire record."

Tenn. Code Ann. § 50-6-217(a)(3) (2015). Like other courts applying the standards
embodied in section 50-6-217(a)(3), we will not disturb the decision of the trial court
absent the limited circumstances identified in the statute.

                                              Analysis

       This case presents an important issue concerning the circumstances in which a trial
court can dismiss an employee's workers' compensation claim with prejudice prior to a
trial on the merits.     Tennessee Code Annotated section 50-6-239(c) states that
"proceedings at all hearings" in the Court of Workers' Compensation Claims are
governed by 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)(l) (2015). The statute goes on to

4
 The trial court's order granting the motion to dismiss reflects that Employee was "given notice of the
hearing."
                                                  3
provide that "if a motion for temporary disability or medical benefits is denied on the
basis that the claim is not compensable," then "the workers' compensation judge may
entertain an appropriate motion for dismissal of the claim." Tenn. Code Ann. § 50-6-
239(d)(4) (2015) (emphasis added). The phrase "appropriate motion for dismissal" is not
defined by any statute.

       Following the implementation of the 2013 reforms, the Administrator of the
Bureau of Workers' Compensation ("Bureau") adopted Rule 0800-20-21-.14(3), citing as
statutory authority, among other provisions, section 50-6-239(c)(l). That rule provides as
follows:

       If, as a result of the expedited hearing, the claim is denied on the grounds of
       compensability, the claim shall continue as provided in these rules .... If
       the denial on the grounds of compensability is affirmed by the appeals
       board or if no appeal is taken, the employer may file a motion to dismiss
       with the assigned workers' compensation judge. If a motion to dismiss
       pursuant to this paragraph is filed, ... the employee shall have thirty (30)
       calendar days to file a written response. Thereafter, the motion shall be set
       for a hearing and the judge shall issue an appropriate order.

Tenn. Comp. R. & Regs. 0800-02-21-.14(3) (2015) (emphasis added). The regulations,
like the statutes, do not define the phrases "motion to dismiss" or "an appropriate order"
in this context. Thus, since neither the statutes nor the regulations define the parameters
of an appropriate "motion for dismissal" as contemplated in section 239(d)(4) and/or
Rule 0800-20-21-.14(3), we must consider in what circumstances an employer can
succeed in having an employee's claim dismissed prior to a trial on the merits.

                   Applicability of Tennessee Rules of Civil Procedure
                          and the Tennessee Rules ofEvidence

       In establishing a new statutory scheme for workers' compensation claims in
Tennessee, the general assembly expressed its intent to increase the efficiency and
timeliness of claims processing. Senate Commerce and Labor Committee Hearing on
Senate Bill 0200 (Mar. 12, 2013). To that end, the general assembly conferred upon the
Court of Workers' Compensation Claims original and exclusive jurisdiction for workers'
compensation claims with dates of injury on or after July 1, 2014. See Tenn. Code Ann.
§ 50-6-238 (2015). The general assembly also expressed its intent that the Court of
Workers' Compensation Claims shall "conduct hearings in accordance with the
Tennessee Rules of Civil Procedure and the Tennessee Rules of Evidence." Senate
Commerce and Labor Committee Hearing on Senate Bill 0200 (Mar. 12, 2013). This
intent was codified in sections 50-6-238(a)(3) and 239(c)(l). Subsection 238(a)(3)
imposes on workers' compensation judges the duty to "conduct hearings in accordance
with the Tennessee Rules of Civil Procedure, the Tennessee Rules of Evidence, and the

                                             4
rules adopted by the bureau." Tenn. Code Ann. § 50-6-238(a)(3) (2015). Moreover, the
statute provides that "[t]he Tennessee Rules of Evidence and the Tennessee Rules of
Civil Procedure shall govern proceedings at all hearings before a workers' compensation
judge" unless the administrator has adopted an alternate procedural or evidentiary rule.
Tenn. Code Ann. § 50-6-239(c)(l) (2015) (emphasis added). An alternate procedural or
evidentiary rule is one that "conflicts with the Tennessee Rules of Civil Procedure or the
Tennessee Rules of Evidence." Id.

        It is within this statutory scheme and legislative history that we must consider
whether the Tennessee Rules of Civil Procedure and the Tennessee Rules of Evidence
apply to motions or other documents filed prior to or subsequent to a formal hearing in
the Court of Workers' Compensation Claims. As with any effort to construe statutory
provisions, we must begin with the language. Amell v. Liberty Mut. Ins. Co., No. 1999-
01021-WC-R3-CV, 2000 Tenn. LEXIS 243, at *3 (Tenn. Workers' Comp. Panel May 3,
2000). As discussed above, section 50-6-239(c)(l) states that the rules "shall govern
proceedings at all hearings." Tenn. Code Ann. § 50-6-239(c)(l) (emphasis added).
"Proceeding" means "the form and manner of conducting judicial business before a court
or judicial officer." Blacks Law Dictionary 1204 (6th ed. 1990). In contrast, a
"hearing" is defined as a "proceeding of relative formality ... with definite issues of fact
or law to be tried, in which witnesses are heard and evidence presented." Black's Law
Dictionary 721 (6th ed. 1990). Thus, while a common understanding of the words
"proceeding" and "hearing" might suggest that they are synonymous, they are not. The
word "proceeding" connotes a broader reach than the word "hearing." In fact, the
definitions as noted above suggest that a "hearing" is but one type of "proceeding" that
might occur in a court setting. Consequently, any action which pertains to the "form and
manner of conducting judicial business" falls within the definition of "proceeding."

       Tennessee courts have defined the word "proceeding" in many contexts, such as
peer review proceedings, criminal proceedings, and child custody proceedings. See, e.g.,
Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 536 (Tenn. 2010) (defining "peer review
proceeding"); Carter v. Bell, 279 S.W.3d 560, 571 (Tenn. 2009) (defining "criminal
proceeding"); Moorcroft v. Stuart, No. M2013-02295-COA-R3-CV, 2015 Tenn. App.
LEXIS 52, at *23 (Tenn. Ct. App. Jan. 30, 2015) (defining "child custody proceeding").
Further, in considering whether a particular statute can be applied retroactively, the
Tennessee Supreme Court has explained that "a statute is 'procedural if it defines the ...
proceeding by which a legal right is enforced, as distinguished from the law which gives
or defines the right."' Doe v. Sundquist, 2 S.W.3d 919, 923 (Tenn. 1999) (citing
Kuykendall v. Wheeler, 890 S.W.2d 785, 787 (Tenn. 1994) ("A statute is procedural if it
defines the mode or proceeding by which a legal right is enforced .... ")). Thus, the
Supreme Court has suggested that the term "proceeding" is not limited to the confines of
a formal hearing, but encompasses the mode or manner by which a legal right may be
enforced.


                                             5
       Moreover, we note Tennessee Code Annotated section 50-6-239(a) requires a
party to a workers' compensation dispute to file a request for a hearing "[w]ithin sixty
(60) days after issuance of a dispute certification notice by a workers' compensation
mediator." Tenn. Code Ann. § 50-6-239(a) (2015). In its rules governing mediation and
hearing procedures, the Bureau reiterated and further explained this mandate:

       Immediately after a dispute certification notice has been filed with the
       clerk, either party seeking further resolution of any disputed issue shall file
       a request for hearing with the clerk on a form approved by the [Bureau]
       and serve a copy of the request on the opposing party or their counsel, if
       any. If no request for hearing is filed within sixty (60) calendar days after
       the date of issuance of the dispute certification notice, the clerk shall docket
       the case and place the case on a separate dismissal calendar for a show
       cause hearing. . . . Either party may appear to show cause as to why the
       case should not be dismissed.

Tenn. Comp. R. & Regs. 0800-02-21-.12(1) (2015) (emphasis added). Thus, the statute
makes clear that the mode or manner of resolving disputes in the Court of Workers'
Compensation Claims is triggered by the filing of a request for hearing.

        Further, the general assembly addressed the manner in which hearings of disputes
are conducted in section 50-6-239(c) and further explained the procedure for hearings of
disputes on an expedited basis in section 50-6-239(d). Specifically, the statute authorizes
a workers' compensation judge to issue an interlocutory order for temporary disability or
medical benefits without holding a full evidentiary hearing. Tenn. Code Ann. § 50-6-
239(c)-(d) (2015). Thus, the general assembly emphasized two principles in creating this
new statutory scheme - timeliness and efficiency. See Tenn. Code Ann. § 4-3-
1409(b)(2)(A). With respect to the goal of improving timeliness, the statute requires
parties to seek resolution of disputed issues in a timely manner by requesting a hearing
within sixty days of the issuance of the dispute certification notice. With respect to the
goal of efficiency, the general assembly authorized trial courts to resolve requests for an
expedited hearing with or without holding a full evidentiary hearing.

       Based on the foregoing, we conclude that the phrase "proceedings at all hearings"
as used in section 50-6-239(c)(l) encompasses all filings made by the parties as a result
of any request for or notice of a hearing filed after the issuance of a dispute certification
notice. An alternative approach which applies the Rules of Civil Procedure and the Rules
of Evidence only at formal hearings could result in parties' being free to submit
inadmissible information and documentation prior to a formal hearing while such filings
are not subject to procedural and evidentiary rules; yet, the very same information and
documentation would be subject to the rules if offered as evidence during the course of
the hearing. This becomes even more confusing and unwieldy when considering the
Court of Workers' Compensation Claims' Practices and Procedures, which requires

                                              6
parties to submit certain evidence they intend to introduce prior to a formal hearing. See
Court of Workers' Comp. Claims Prac. & Proc. 7.01 (2015). Waiting to apply the
Tennessee Rules of Civil Procedure and the Tennessee Rules of Evidence until a formal
hearing is convened is untenable, unmanageable, and incongruous with the stated goals of
                                                                             5
ensuring fairness to all partie and improving the effici ency of the system.

        Therefore, we find that the Tennessee Rules of Civil Procedure and the Tennessee
Rules of Evidence apply to any action taken in, or pleading filed with, the Court of
Workers' Compensation Claims, whether the filing is made with or subsequent to the
filing of a request for or notice of a hearing, as long as the action or filing is part of the
overall proceeding during which a party seeks to enforce a legal right under the Workers'
Compensation Law. With respect to any such action, the Tennessee Rules of Civil
Procedure and the Tennessee Rules of Evidence shall govern unless the administrator has
adopted an alternative procedural or evidentiary rule that conflicts with the
aforementioned rules. In accordance with the express language of section 50-6-
239( c )(l ), such an alternative rule would control.

       In the present case, the administrator adopted Rule 0800-02-21-.14(3), which
gives an employer a legal basis to file a motion to dismiss the employee's claim if the
trial court previously denied benefits on grounds of compensability at an expedited
hearing. However, nothing contained in this rule conflicts with the Tennessee Rules of
Civil Procedure,. which provide several bases for dismissal of a claim during the
pendency of litigation. Moreover, the language of the rule itself does not define the term
"motion to dismiss" and does not explain the circumstances in which a trial court can
grant such a motion, only stating that the judge "shall issue an appropriate order." Tenn.
Comp. R. & Regs. 0800-02-21-.14(3). Therefore, since such motions are not defined in
the statutes or rules, we conclude that a motion to dismiss filed pursuant to Tennessee
Code Annotated section 50-6-239(d)(4) and/or Tenn. Comp. R. & Regs. 0800-02-21-
.14(3) is not an alternate procedural rule. Instead, such motions to dismiss are subject to
the Tennessee Rules of Civil Procedure.

                                         Motions to Dismiss

        Rule 7 .02 of the Tennessee Rules of Civil Procedure states that "an application to
the court for an order shall be by motion which, unless made during a hearing or trial,
shall be made in writing, shall state with particularity the grounds therefor, and shall set
forth the relief or order sought." Tenn. R. Civ. P. 7.02(1) (2015). Rule 8.06 directs a trial
court to construe all pleadings "to do substantial justice." Tenn. R. Civ. P. 8.06 (2015).



5
  The alternative approach of applying the Rules of Civil Procedure and the Rules of Evidence only at
formal hearings would also allow parties to manipulate the application of the rules based on the tactical
decision of whether or not to request a formal in-person hearing.
                                                   7
       Further, Rule 12.02 governs the manner in which defenses may be presented by
motion. In light of the circumstances presented by Tennessee Code Annotated section
239(d)(4), in which a trial court has conducted an expedited hearing, determined the
claim was not compensable, and denied benefits, the only basis for dismissal listed in
Rule 12.02 that logically could apply in the present circumstances is a motion to dismiss
for failure to state a claim upon which relief can be granted. See Tenn. R. Civ. P.
12.02(6) (2015). With respect to such motions, the rule provides:

       If, on a motion asserting the defense numbered (6) to dismiss for failure to
       state a claim upon which relief can be granted, matters outside the
       pleadings are presented to and not excluded by the court, the motion shall
       be treated as one for summary judgment and disposed of as provided in
       Rule 56, and all parties shall be given reasonable opportunity to present all
       material made pertinent to such a motion by Rule 56.

Tenn. R. Civ. P. 12.02 (2015) (emphasis added).

        In Jose v. Equifax, Inc., 556 S.W.2d 82 (Tenn. 1977), the Tennessee Supreme
Court considered a workers' compensation claim in which the trial court had granted an
employer's motion to dismiss for failure to state a claim upon which relief can be
granted. The employee in Jose alleged that he suffered from a psychological injury due
to a "tremendous amount of pressure and tension in order to meet the obligations placed
upon him as an employee of the Defendant." Id. at 83. In affirming the trial court's
dismissal of the claim, the Supreme Court described the employee's allegations as
"general and conclusory." Id. The Court then stated, "[p]redicated upon these ...
allegations, which were not amended in the face of a motion challenging their legal
sufficiency, the employee . . . asks this Court to hold as a matter of law that a claim for
workmen's compensation benefits has been stated. This we are not prepared to do." Id.
The Court further explained that "[w]hen challenged by a motion to dismiss, it was
incumbent upon appellant to state with some specificity and clarity what sort of
'accidental injury' was being claimed. ... Tested by a motion to dismiss, the complaint
failed to allege an injury by accident arising out of and in the course of employment." Id.
at 84 (emphasis added). See also Smith v. Lincoln Brass Works, Inc., 712 S.W.2d 470
(Tenn. 1986) (trial court's dismissal of workers' compensation claim affirmed in light of
employee's failure to state a claim upon which relief could be granted).

       In another case, Stevenson v. State, No. M2001-02522-WC-R3-CV, 2002 Tenn.
LEXIS 471 (Tenn. Workers' Comp. Panel Oct. 31, 2002), the Tennessee Claims
Commission dismissed a state employee's workers' compensation claim in response to a
motion to dismiss for failure to state a claim upon which relief can be granted. On
appeal, the Supreme Court's Special Workers' Compensation Appeals Panel reversed,
explaining its rationale as follows:


                                            8
        A motion to dismiss for failure to state a claim upon which relief can be
        granted admits the truth of all relevant and material averments contained in
        the complaint, but asserts that such facts do not constitute a cause of action.
        Moreover, a complaint should not be dismissed for failure to state a claim
        unless it appears beyond doubt that the plaintiff can prove no set of facts in
        support of his claim that would entitle him to relief. Whether a complaint
        states a claim for which relief can be granted is a question of law.

Id. at *3 (emphasis added) (citations omitted).
                                                6



        With respect to Rule 56 motions, the Tennessee Supreme Court, in Rye v.
 Women's Care Center of Memphis, 477 S.W.3d 235 (Tenn. 2015), recently reexamined
the history of summary judgment in Tennessee since the adoption of Rule 56. After
summarizing the development of both federal and state law, including its decision in
Hannan v. Alltel Publ'g Co., 271 S.W.3d 1 (Tenn. 2008), the Court in Rye concluded that
"the standard adopted in Hannan is incompatible with the history and text of Tennessee
Rule 56 and has functioned in practice to frustrate the purposes for which summary
judgment was intended - a rapid and inexpensive means of resolving issues and cases
about which there is no genuine issue regarding material facts." Id. at 261. The Court
then explained that "when the moving party does not bear the burden of proof at trial, the
moving party may satisfy its burden of production [in a motion for summary judgment]
either (1) by affirmatively negating an essential element of the nonmoving party's claim
or (2) by demonstrating that the nonmoving party's evidence at the summary judgment
stage is insufficient to establish the nonmoving party's claim or defense." Id. at 264
(emphasis in original).

       The Court in Rye discussed each party's burden of proof at the summary judgment
stage as follows:

        We reiterate that a moving party seeking summary judgment by attacking
        the nonmoving party's evidence must do more than make a conclusory
        assertion that summary judgment is appropriate on this basis. . . . "[W]hen
        a motion for summary judgment is made [and] ... supported as provided in
        [Tennessee Rule 56]," to survive summary judgment, the nonmoving party
        "may not rest upon the mere allegations or denials of [its] pleading," but

6
  In his concurrence, Judge Hensley writes, "It is difficult to conceive circumstances following a request
for an expedited hearing that is supported by an affidavit, as required by the regulations, and the
completion of an expedited hearing that results in a denial of temporary disability or medical benefits,
under which a Rule 12.02(6) motion to dismiss for failure to state a claim upon which relief can be
granted could have merit." Yet, any employee who asserts a claim for workers' compensation benefits
based on a factual allegation which, on its face, is beyond the scope of the workers' compensation statute
could be faced with a motion to dismiss for failure to state a claim upon which relief can be granted. The
Jose case is one example of such a scenario.

                                                    9
       must respond, and by affidavits or one of the other means provided in
       Tennessee Rule 56, "set forth specific facts" at the summary judgment stage
       "showing that there is a genuine issue for trial."

Id. at 264-65 (alterations and emphasis in original) (citations omitted).

        In light of the foregoing principles, we hold that when an employer seeks
dismissal of an employee's claim for workers' compensation benefits pursuant to
Tennessee Code Annotated section 50-6-239(d)(4) and/or Tenn. Comp. R. & Regs. 0800-
02-21-.14(3), in circumstances where the trial court previously denied temporary
disability or medical benefits on grounds of noncompensability, the trial court must treat
the motion for dismissal as one filed pursuant to any applicable rule of the Tennessee
Rules of Civil Procedure.

                                Application ofLaw to Facts

        In the present case, in response to Employee's second request for an expedited
hearing, Employer produced a medical opinion from the authorized treating physician
stating, "after careful review of [Employee's] prior records and my records, I am unable
to establish any causation or an apportionment based on a significant change in her
subjective pain or dysfunction and I am unable to establish an anatomic change." This
expert medical opinion, which is entitled to a presumption of correctness in accordance
with Tennessee Code Annotated section 50-6-102(14)(E), negated an essential element of
Employee's claim for workers' compensation benefits, i.e., medical causation. See Tenn.
Code Ann. § 50-6-102(14)(C)-(D) (2015). In response to Employer's subsequent motion
for dismissal, Employee did not file a response, did not challenge the sufficiency of the
motion to dismiss, did not participate in the motion hearing despite having received
notice, and did not request a continuance of the motion hearing in order to seek an
additional expert medical opinion. Therefore, under the circumstances of this case, we
conclude that Employee's failure to respond to Employer's motion to dismiss, failure to
challenge its legal sufficiency, and failure to appear at the motion hearing supports the
trial court's decision to dismiss the claim.

        Before concluding, it is necessary to address several aspects of Judge Hensley's
concurrence. First, he asserts that the issue concerning the circumstances in which a trial
court can dismiss an employee's workers' compensation claim with prejudice prior to a
trial on the merits was not raised by Employee on appeal. Yet, that is the very posture of
this case as presented to us. Following entry of the trial court's order dismissing
Employee's claim with prejudice, Employee filed a Compensation Hearing Notice of
Appeal, alleging that the case was improperly dismissed. While it is true that Employee
did not frame the issues on appeal as a lawyer might, she fairly questioned whether her
case was properly dismissed. "The courts give pro se litigants who are untrained in the
law a certain amount of leeway in drafting their pleadings and briefs. Accordingly, we

                                             10
measure the papers prepared by pro se litigants using standards that are less stringent than
those applied to papers prepared by lawyers." Young v. Barrow, 130 S.W.3d 59, 63
(Tenn. Ct. App. 2003) (citations omitted). Moreover, a dismissal with prejudice, if
affirmed, precludes any possibility that Employee could maintain her claim for workers'
compensation benefits arising from the alleged work injury. Thus, it is of utmost
importance that we carefully consider whether the trial court properly dismissed her
claim with prejudice prior to a hearing on the merits. Instead of affirming the dismissal
summarily, based solely on Employee's failure to frame the issues on appeal in the same
way an attorney might, it is necessary to consider substance over form.

       Second, Judge Hensley asserts that "it is not necessary for a procedural or
evidentiary rule to conflict with the Tennessee Rules of Civil Procedure or the Tennessee
Rules of Evidence for the procedural or evidentiary rule to be 'an alternate' rule as
contemplated in section 50-6-239(c)(l)." Yet, when subsection 239(c)(l) is read in
context and considered in its entirety, it indicates that the primary sources for rules in the
Court of Workers' Compensation Claims are the Tennessee Rules of Civil Procedure and
the Tennessee Rules of Evidence. It is only when the administrator's rule conflicts with
the Tennessee Rules of Civil Procedure or the Tennessee Rules of Evidence that "the rule
adopted by the administrator shall apply." Tenn. Code Ann. § 50-6-239(c)(l). The
conclusion we reach regarding application of the Tennessee Rules of Civil Procedure and
the Tennessee Rules of Evidence is based on our interpretation of the phrase
"proceedings at all hearings" in light of the context in which that phrase is used, as well
as the statutory scheme as a whole. This complies with a basic principle of statutory
construction, which requires statutory language to be considered in context to achieve
harmonious operation of the law and avoid absurd results. See Lee Med., Inc. v. Beecher,
312 S.W.3d 515, 526-27 (Tenn. 2010).

        Finally, Judge Hensley asserts that an "unsuspecting employee" who sought
benefits by filing a request for expedited hearing "could find himself or herself at a
precipice that could effectively conclude the claim with prejudice should the employee be
unable to resolve evidentiary inadequacies at that point in the face of an employer's
motion pursuant to section 50-6-239(d)(4)." Yet, that is exactly the situation any
employee faces when a motion to dismiss is filed pursuant to section 50-6-239(d)(4)
and/or Tenn. Comp. R. & Regs. 0800-02-21-.14(3). Under Judge Hensley's rationale, a
trial court would have no particular legal standard to apply if the Tennessee Rules of
Civil Procedure are not applicable and could dismiss an employee's claim with prejudice
if the judge decided that the employee's "plan of action" to address evidentiary
deficiencies was, in the trial judge's opinion, inadequate. Moreover, Judge Hensley
argues that any such decision would be subject to appellate review under an "abuse of
discretion" standard. This deferential standard, which requires affirmance "so long as
reasonable minds can disagree as to the propriety of the decision made," Silliman v. City
of Memphis, 449 S.W.3d 440, 447 (Tenn. Ct. App. 2014) (citation omitted), is simply
inadequate in circumstances where an employee's claim has been dismissed with

                                             11
prejudice. Instead, we conclude that parties who have filed or are responding to a request
for or notice of hearing are entitled to the protections offered by the Tennessee Rules of
Civil Procedure and the Tennessee Rules of Evidence, and the trial court's decision will
be subject to meaningful appellate review in light of well-established legal precedent.

                                        Conclusion

       For the foregoing reasons, the trial court's decision is affirmed, albeit for different
reasons, and the Order on Employer's Motion to Dismiss is certif ed as final.


                                                                    -~
                                                  Timo y . Conner, Judge
                                                  Wo1·kers' Compensation Appeals Board




                                             12
             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD


Deborah Syph                                ) Docket No. 2015-06-0288
                                            )
v.                                          )
                                            ) State File No. 36614-2015
Choice Food Group, Inc.                     )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Joshua Davis Baker, Judge                   )




                      Concurring Opinion – filed April 21, 2016


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

       I agree with my colleagues that the trial court did not err in granting the
employer’s motion to dismiss the employee’s claim. I also agree with the lead opinion’s
rationale for affirming the trial court’s decision. I write separately to explain why I
believe the trial court, while correctly dismissing the case, incorrectly concluded that
Tenn. Comp. R. & Regs. 0800-02-21-.14(3) is an alternate procedural rule as
contemplated by Tennessee Code Annotated section 50-6-239(c)(1).

                                            I.

       This case involves an important issue of first impression, i.e., whether a motion to
dismiss filed pursuant to Tenn. Comp. R. & Regs. 0800-02-21-.14(3) is an alternate
procedural rule within the meaning of Tennessee Code Annotated section 50-6-239(c)(1).
If the answer to this question is yes, motions to dismiss filed under Rule 0800-02-21-
.14(3) will be analyzed independently of the analytical framework provided by the
Tennessee Rules of Civil Procedure. If the answer to the question presented is no, the
Tennessee Rules of Civil Procedure will control how motions to dismiss are determined.
In my view, Rule 0800-02-21-.14(3) is not an alternate procedural rule and, therefore, a



                                            1
motion to dismiss filed under that regulation should be analyzed according to the
Tennessee Rules of Civil Procedure.

       The issue in this case requires us to interpret and apply statutes and administrative
regulations representing key parts of the 2013 reforms to Tennessee’s workers’
compensation system. The interpretation and application of these statutes and regulations
present questions of law. See Gerdau Ameristeel, Inc. v. Ratliff, 368 S.W.3d 503, 506
(Tenn. 2012). Accordingly, the trial court’s construction and application of these
provisions to the facts of this case are reviewed de novo without a presumption of
correctness. Id.

       I begin with the basic principle that administrative regulations have the force and
effect of law. Kogan v. Tenn. Bd. of Dentistry, No. M2003-00291-COA-R3-CV, 2003
Tenn. App. LEXIS 933, at *17 (Tenn. Ct. App. Dec. 30, 2003). As such, courts must
give effect to regulatory provisions provided those provisions are not inconsistent with
statutes covering the same subject. Id. at *14. Further, it is well-established that
principles of statutory construction guide courts in the task of interpreting administrative
regulations. See Consumer Advocate & Prot. Div. v. Tenn. Regulatory Auth., No.
M2011-00028-COA-R12-CV, 2012 Tenn. App. LEXIS 355, at *44 (Tenn. Ct. App. May
30, 2012). Accordingly, the search for the meaning of both a statute and a regulation
begins with its words, which must be given their plain and ordinary meaning in light of
the context in which they are used. Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405,
420 (Tenn. 2013). Courts must avoid a construction that unduly restricts or expands the
meaning of the language used, as every word is presumed to have meaning and purpose.
Id. As stated by the Tennessee Supreme Court, “because these words are known by the
company they keep, courts must also construe these words in the context in which they
appear in the statute and in light of the statute’s general purpose.” Lee Med., Inc. v.
Beecher, 312 S.W.3d 515, 526 (Tenn. 2010).

       Mindful of these principles, I note first that there is nothing in the language of
Rule 0800-02-21-.14(3) to suggest a motion to dismiss is anything other than “an
appropriate motion . . . for dismissal of the claim” as provided for in Tennessee Code
Annotated section 50-6-239(d)(4). Stated another way, because the plain language of the
regulation contains nothing to indicate that it conflicts with the Tennessee Rules of Civil
Procedure, the motion contemplated by the regulation should not be given some sort of
freestanding status. See Tenn. Code Ann. § 50-6-239(c)(1) (procedural and evidentiary
rules adopted by the administrator that conflict with the Tennessee Rules of Civil
Procedure or Tennessee Rules of Evidence take precedence).




                                             2
        Second, I do not believe that the word “hearings” as used in section 50-6-239(c)(1)
alters the analysis when considered in context.1 Judges must adhere to the plain meaning
of statutes and regulations to avoid reading their own beliefs and values into the law,
Tennessean v. Metro. Gov’t of Nashville & Davidson Cnty., No. M2014-00524-SC-R11-
CV, 2016 Tenn. LEXIS 180, at *63 (Tenn. Mar. 17, 2016) (Wade, J., dissenting), and
statutory and regulatory language should be considered in context to facilitate the
harmonious operation of the law and avoid absurd results, Lee Med., Inc., 312 S.W.3d at
526-27. In my view, excluding a Rule 0800-02-21-.14(3) motion to dismiss from the
reach of the Tennessee Rules of Civil Procedure merely because the motion is filed prior
to the commencement of a hearing represents an overly narrow construction of the phrase
“proceedings at all hearings” in section 50-6-239(c)(1). It is illogical to treat a motion
filed prior to the start of a hearing, as most motions are, as beyond the authority of the
trial court to resolve under the Tennessee Rules of Civil Procedure, yet treat the identical
motion as controlled by those rules if it is filed between the time the hearing begins and
ends. I do not believe the legislature intended such an anomaly.

       Third, the workers’ compensation system is designed to benefit employees by
providing expeditious and certain recovery for work-related injuries and to benefit
employers by limiting their exposure to liability. Clanton v. Cain-Sloan Co., 677 S.W.2d
441, 443 (Tenn. 1984). Detaching Rule 0800-02-21-.14(3) motions to dismiss from the
Tennessee Rules of Civil Procedure would undermine both expectations by effectively
creating a standardless procedural device unknown in the law, resulting in needless and
protracted litigation over whether and under what circumstances such a motion should be
granted or denied.2

       Fourth, an alternative approach that focuses solely on the word “hearings” in
sections 50-6-239(c)(1) and 50-6-238(a)(3) and ignores the remaining language and the
context in which it appears would require litigants and trial judges alike to determine and
apply legal principles predating the Tennessee Rules of Civil Procedure in some cases,
determine and apply legal principles based on the Tennessee Rules of Civil Procedure in
other cases, and sometimes require both in the same case, all depending on when a
motion or document is filed. The complexity and potential for gamesmanship inherent in
such an approach is self-evident. Indeed, such an approach is unworkable, would
introduce confusion and uncertainty into the law, and would undermine a “fair, equitable,

1
 The Tennessee Rules of Civil Procedure govern “proceedings at all hearings” before the Court of
Workers’ Compensation Claims. Tenn. Code Ann. § 50-6-239(c)(1); see also Tenn. Code Ann. § 50-6-
238(a)(3) (“Workers’ compensation judges shall conduct hearings in accordance with the Tennessee
Rules of Civil Procedure . . . .”).

2
  In his concurring opinion, Judge Hensley argues that the absence of a standard to guide trial courts in
ruling on an employer’s motion to dismiss could be remedied by adopting an abuse of discretion standard.
Ironically, he relies upon the Tennessee Rules of Civil Procedure and cases interpreting those rules in
arriving at that standard.


                                                   3
expeditious, and efficient” workers’ compensation system. See Tenn. Code Ann. § 4-3-
1409(b)(2)(A).

       Fifth, the Tennessee Rules of Civil Procedure, which became effective in 1971,
“were designed to simplify and ease the burden of procedure under the sometimes harsh
and technical rules” that predated them. Branch v. Warren, 527 S.W.2d 89, 91 (Tenn.
1975). The rules themselves state they are designed to “secure the just, speedy, and
inexpensive determination of every action.” Tenn. R. Civ. P. 1. Severing the resolution
of procedural and evidentiary issues from the Tennessee Rules of Civil Procedure and the
Tennessee Rules of Evidence, unless those issues arise between the time a hearing begins
and concludes, requires an unnecessarily narrow construction of the pertinent statutes and
a constricted view of how litigation typically unfolds leading up to when a case is heard
and decided. Such an approach would compel litigants and trial judges to analyze
procedural and evidentiary issues based on principles that may or may not be used in
modern litigation via the Tennessee Rules of Civil Procedure and the Tennessee Rules of
Evidence. In my view, turning back the clock nearly half a century to whatever the law
may have been before the Supreme Court’s adoption of the Rules of Civil Procedure in
1971 would represent a major step backward for employees, employers, and the courts in
terms of resolving disputes in a consistent, predictable, and coherent manner.

       For these reasons, I respectfully disagree with my colleague’s analysis in his
concurring opinion and the trial court’s conclusion that Rule 0800-02-21-.14(3)
represents an alternate procedural rule as contemplated by section 50-6-239(c)(1).3

                                                   II.

      While I disagree with the trial court’s analysis regarding the nature of a Rule
0800-02-21-.14(3) motion to dismiss, I do agree that the court was justified in granting
the motion and dismissing the case because the motion was essentially unopposed.

       The employee makes no argument that she was unaware the motion had been filed
or that the trial court had set a hearing to consider the motion. To the contrary, the trial
court specifically found that she had notice of the hearing, and that finding has not been
challenged on appeal. Despite such notice, the employee elected not to file a written
response to the motion. See Tenn. Comp. R. & Regs. 0800-02-21-.14(3). Nor did she
attend or otherwise participate in the hearing regarding the possible dismissal of her case.


3
 Judge Hensley asserts that, by addressing whether a motion to dismiss filed pursuant to Rule 0800-02-
21-.14(3) is an alternate procedural rule within the meaning of section 50-6-239(c), as the trial did, we are
deciding an issue unnecessary to resolving this case. However, this issue was the sole basis for the trial
court’s decision. Judge Hensley also argues that whether to expand or restrict the application of the
Tennessee Rules of Civil Procedure beyond the plain language of the pertinent statutes and regulations
should be left to lawmakers. On this point, we are unanimous.


                                                     4
       Notwithstanding opportunities to be heard both orally and in writing, the employee
took no steps to oppose the motion to dismiss, yet she asserts on appeal that the trial court
erred in granting the motion. In my view, a party faced with a potentially dispositive
motion, such as a motion to dismiss, should not be permitted to take no action and then
be heard to complain about the outcome. See Tenn. R. App. P. 36(a) (relief need not be
granted to a party “who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error”). A contrary approach would be
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).

        In short, while I agree with the well-reasoned analysis in the lead opinion, I
believe dismissal of the case was also warranted because the motion to dismiss was, as
far as this record shows, unopposed.




                                             5
                                                                                                    FILED
                                                                                                April 21, 2016
                                                                                                   TENNESSEE
                                                                                              WORKERS' COMPENSATION
                                                                                                 APPEALS BOARD

                                                                                                  Time: 2:00 P,M,



              TENNESSEE BUREAU OF WORKERS' COMPENSATION
                 WORKERS' COMPENSATION APPEALS BOARD


Deborah Syph                                       )   Docket No. 2015-06-0288
                                                   )
v.                                                 )
                                                   )    State File No. 36614-2015
Choice Food Group, Inc.                           )
                                                  )
                                                  )
Appeal from the Court of Workers'                 )
Compensation Claims                               )
Joshua Davis Baker, Judge                         )


                          Concurring Opinion -filed April 21, 2016


David F. Hensley, J., concurring.

        I agree fully with the outcome expressed in the lead opinion and the certification
of the trial court's dismissal order as final. The employee identified no substantive issue
in her notice of appeal, nor did she submit a brief or position statement on appeal.
Moreover, despite being given notice of the hearing of the employer's motion to dismiss,
the employee did not participate in the hearing and did not submit a written response in
the trial court to the employer's motion. For those reasons alone, dismissal of the case
was warranted.

       I write separately to address two matters: (1) whether the appeal presents the issue
addressed in the lead opinion; and (2) whether a trial court must treat a motion to dismiss
filed pursuant to Tennessee Code Annotated section 50-6-239(d)(4) (2015) and Tenn.
Comp. R. & Regs. 0800-02-21-.14(3) (2015) "as one filed pursuant to any applicable rule
of the Tennessee Rules of Civil Procedure," as the lead opinion holds. 1



I
 While the statutes and regulations in issue address both the Tennessee Rules of Civil Procedure and the
Tennessee Rules of Evidence, the issue raised by the lead opinion concerns only the Tennessee Rules of
Civil Procedure. Thus, I have also limited my discussion to the Tennessee Rules of Civil Procedure.


                                                   1
                                    The Issue on Appeal

        In my opinion, the "important issue" identified in the lead opinion "concerning the
circumstances in which a trial court can dismiss an employee's workers' compensation
claim with prejudice prior to a trial on the merits" is not presented in this appeal. In the
notice of appeal, the employee unartfully identified the issue or basis for relief on appeal
as follows: "Because even though previous injury there are health issues with back that
didn't occur from previous injury." The employee did not describe a substantive issue in
the notice of appeal and did not submit a brief or position statement in support of her
appeal. The employee did not question, either in the trial court or on appeal, whether
Tennessee Code Annotated section 50-6-239(d)(4) or Rule 0800-0002-21-.14(3) allows
an employee's claim to be dismissed prior to a hearing on the merits, or whether or under
what circumstances the Tennessee Rules of Civil Procedure apply in workers'
compensation claims. As previously noted by the Appeals Board, an issue not presented
to the trial court generally cannot be raised for the first time on appeal.

       It is well-established that, apart from limited exceptions not applicable here,
       issues not presented to and decided by the trial court will not be considered
       by appellate courts. This rule has been described as a "cardinal principle of
       appellate practice." Consequently, when a party fails to raise an issue in the
       trial court, the party waives its right to raise that issue on appeal. The
       rationale for the rule is that the trial court should not be held in error when
       it was not given the opportunity to rule on the issue or the argument being
       advanced on appeal. If the rule were otherwise, parties could forego
       bringing to the trial court's attention a potentially dispositive error or issue
       and then, if dissatisfied with the outcome, essentially ambush the trial
       court's decision on appeal based on the error or issue that could have been
       raised below. To avoid this untenable situation, "[i]t has long been the
       general rule that questions not raised in the trial court will not be
       entertained on appeal." Indeed, in most instances, an issue raised for the
       first time on appeal will be deemed waived.

Long v. Hamilton-Ryker, No. 2015-07-0023, 2015 TN Wrk. Comp. App. Bd. LEXIS 23,
at *14-15 (Tenn. Workers' Comp. App. Bd. July 31, 2015) (citations omitted).

        Here, the employee did not appeal the trial court's November 6, 2015 order
denying her request for temporary disability and medical benefits. That order specifically
determined that the employee "is unlikely to prevail at a hearing on the merits." The
order under review is a January 13, 2016 order granting the employer's motion to dismiss
that was filed pursuant to Rule 800-02-21-.14(3), wherein the trial court concluded ''that
it decided [the employee's] case on the merits at the Expedited Hearing." The trial court
stated in the order under review that it was "exercising this Court's charge to control the
pace of litigation and docket management to ensure the efficient disposition of cases,"

                                              2
and "[found] it appropriate to dismiss [the employee's] claim." Since the employee
"received a full and fair opportunity to present her case [at the expedited hearing], but
nonetheless failed to meet her burden," and "declined to participate in proceedings
following the Expedited Hearing," the trial court dismissed the employee's claim with
prejudice. The employee's attempt in the notice of appeal to identify an error that she
contends the trial court made in the expedited hearing simply does not provide a
substantive issue for review of the January 13, 2016 order dismissing her case. "Issues or
arguments not raised in the Court of Workers' Compensation Claims will be deemed
waived on appeal." Appeals Board Prac. & Proc. § 5.5 (2015). The issue raised in the
lead opinion is important in workers' compensation claims. However, in my view,
resolution of the issue should await the appropriate case in which a party raises the issue
and the Appeals Board has the benefit of the parties' briefs or position statements.

             Application of the Tennessee Rules of Civil Procedure to Section
                             50-6-239(d)(4) Motions to Dismiss

      The trial court made the following conclusion in its January 13, 2016 order
dismissing the employee's case:

       [A] Rule [0800-02-21-.14(3)] motion is distinct from the procedural
       mechanisms (motions to dismiss and for summary judgment) provided for
       in the Tennessee Rules of Civil Procedure. For that reason, the Court finds
       that a Rule .14(3) motion to dismiss is an alternate procedure as
       contemplated by Tennessee Code Annotated section 50-6-239(c)(l) (2015),
       and that the standards and procedures applied to motions to dismiss or
       motions for summary judgment under the Tennessee Rules of Civil
       Procedure do not govern the determination of a Rule .14(3) motion.

 The lead opinion finds that the Tennessee Rules of Civil Procedure apply to "any action
taken in, or pleading filed with, the Court of Workers' Compensation Claims ...." The
opinion further states that, "[w]ith respect to any such action, the Tennessee Rules of
Civil Procedure and the Tennessee Rules of Evidence shall govern unless the
administrator has adopted an alternate procedural or evidentiary rule that conflicts with
the aforementioned rules." (Emphasis added). In my opinion, it is not a requirement of
section 50-6-239(c)(l) that a conflict exist in a rule adopted by the Administrator for such
rule to be an "alternate procedural or evidentiary rule." The question is whether the
Administrator has adopted an alternate procedural or evidentiary rule, and if an alternate
procedural or evidentiary rule has been adopted, the Tennessee Rules of Civil Procedure
simply do not apply. See Tenn. Code Ann. § 50-6-239(c)(l). The lead opinion posits
that "nothing contained in [Rule 0800-02-21-.14(3)] conflicts with the Tennessee Rules
of Civil Procedure, which provide several bases for dismissal of a claim during the
pendency of litigation." Stating that "the language of [Rule 0800-02-21-.14(3)] itself
does not define the term 'motion to dismiss' and does not explain the circumstances in

                                             3
which a trial court can grant such a motion," the lead opinion concludes, "[t]herefore, ...
a motion to dismiss filed pursuant to Tennessee Code Annotated section 50-6-239(d)(4)
and/or Tenn. Comp. R. & Regs. 00800-02-21-.14(3) is not an alternate procedural rule"
and "such motions are subject to the Tennessee Rules of Civil Procedure." I do not share
this view.

        The question is not whether Tennessee Code Annotated section 50-6-239(d)(4) is
an "alternate procedural or evidentiary rule," as suggested in the lead opinion; rather, it is
whether the rule adopted by the Administrator is an "alternate procedural or evidentiary
rule," and if it is, as the trial court determined, the Tennessee Rules of Civil Procedure do
not apply. See Tenn. Code Ann. § 50-6-239(c)(l). The lead opinion focuses on whether
Rule 0800-02-21-.14(3) "conflicts with the Tennessee Rules of Civil Procedure." What
constitutes an "alternate procedural or evidentiary rule" is not defined or otherwise
identified in section 50-6-239(c)(l) or elsewhere in the Reform Act or the regulations
adopted by the Administrator. Section 50-6-239(c)(l) does clarify that "[w]henever the
administrator has adopted an alternate procedural or evidentiary rule that conflicts with
the Tennessee Rules of Civil Procedure or the Tennessee Rules of Evidence, the rule
adopted by the administrator shall apply." Tenn. Code Ann. § 50-6-239(c)(l) (emphasis
added). However, in my view, section 50-6-239(c)(1) does not require that a conflict
exist in order for the rule adopted by the Administrator to be an "alternate" rule. The
Administrator either has or has not adopted an "alternate" rule, and, in my opinion,
whether or not an "alternate" rule has been adopted is not dependent on the existence of a
conflict between the adopted rule and the Tennessee Rules of Civil Procedure.

       The lead opinion states that the rule adopted by the Administrator "gives an
employer a legal basis to file a motion to dismiss the employee's claim if the trial court
previously denied benefits on grounds of compensability at an expedited hearing." The
legal basis for the employer's motion to dismiss is not the rule adopted by the
Administrator; rather, it is Tennessee Code Annotated section 50-6-239(d)(4 ), which
authorizes the employer to file an "appropriate motion" for dismissal of the claim if a
motion for temporary disability or medical benefits is denied on the basis that the claim is
not compensable.      The rule adopted by the Administrator provides procedural
requirements, albeit minimal, following which "the judge shall issue an appropriate
order." Rule 0800-02-21-.14(3). Before a judge can issue an appropriate order, "the
employer shall serve a copy [of the motion] on the employee, or the employee's
counsel[;] . . . the employee shall have thirty (30) calendar days to file a written
response[;]" and "the motion shall be set for a hearing." Rule 0800-02-21-.14(3).

       Having determined that the Tennessee Rules of Civil Procedure "apply to any
action taken in, or pleading filed with, the Court of Workers' Compensation Claims ... ,"
the lead opinion states that Rule 12.02 of the Tennessee Rules of Civil Procedure governs
the manner in which defenses may be presented by motion. Relying on that premise, and
referencing Rule 12.02(6), the lead opinion states that "[i]n light of the circumstances

                                              4
presented by Tennessee Code Annotated section 50-6-239(d)(4), in which a trial court
has conducted an expedited hearing, determined the claim was not compensable, and
denied benefits, the only basis for dismissal listed in Rule 12.02 that logically could apply
... is a motion to dismiss for failure to state a claim upon which relief can be granted."
Having determined that Rule 12.02(6) is the only logical rule to apply under these
circumstances, the lead opinion, in essence, concludes that motions relying on section 50-
6-239(d)(4) or the corresponding regulation must comply with Rule 12.02(6), which
states that "[i]f, on a motion asserting the defense numbered (6) to dismiss for failure to
state a claim upon which relief can be granted, matters outside the pleadings are
presented to and not excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56."

        In my opinion, neither the procedures established in the Reform Act nor the
regulations adopted by the Administrator contemplate a Rule 12.02(6) motion to dismiss
for failure to state a claim upon which relief can be granted. The Reform Act provides
that a claim for workers' compensation benefits is initiated by "a petition for benefit
determination [that] is filed with the bureau on a form prescribed by the administrator."
Tenn. Code Ann. § 50-6-203(b)(l) (2015). Furthermore, no request for a hearing by a
workers' compensation judge can be filed with the Court of Workers' Compensation
Claims, other than a request for settlement approval, "until a workers' compensation
mediator has issued a dispute certification notice certifying issues in dispute for hearing
before a workers' compensation judge." Tenn. Code Ann. § 50-6-203(a). The
Administrator determines the form of the dispute certification notice, and the form in the
instant case, and in current use by the Bureau of Workers' Compensation, does not
include signature lines for the parties. See Tenn. Comp. R. & Regs. 0800-02-21-.02(19).
Unless permission has been granted by a workers' compensation judge, only issues that
have been certified by a workers' compensation mediator within a dispute certification
notice may be presented to the workers' compensation judge for adjudication. Tenn.
Code Ann. § 50-6-239(b)(l).

       In light of the procedures mandated in the Reform Act to initiate a claim for
workers' compensation benefits and the procedures required before a party will be
allowed to present a claim to a judge at a hearing, I disagree with the lead opinion's
conclusion that a Rule 12.02(6) motion to dismiss "logically could apply" to motions
relying on section 50-6-239(d)(4) and the corresponding regulation. It is difficult to
conceive circumstances following a request for an expedited hearing that is supported by
an affidavit, as required by the regulations, and the completion of an expedited hearing
that results in a denial of temporary disability or medical benefits, under which a Rule
12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted
could have merit. Moreover, an employee faced with such a motion at that stage of the
process could simply request leave of the trial court to amend his or her petition, thereby
making the Rule 12.02(6) motion moot if the employee's request for leave to amend is
granted. In my opinion, neither the motion to dismiss authorized by the General

                                             5
Assembly in section 50-6-239(d)(4) nor the motion to dismiss addressed in the rule
adopted by the Administrator contemplates the employer's motion being subject to the
Tennessee Rules of Civil Procedure.

        In my opinion, the procedures for initiating a claim for workers' compensation
benefits and for a mediator's certifying the issues in dispute are not contemplated in the
Tennessee Rules of Civil Procedure. Neither the identification of the issues in dispute on
the initial page of the dispute certification notice form nor the defenses listed in the
"Dispute Certification Checklist" on the second page of the form include as a possible
defense the failure to state a claim upon which relief can be granted. If the Tennessee
Rules of Civil Procedure apply, as determined in the lead opinion, "to any action taken in,
or pleading filed with, the Court of Workers' Compensation Claims, whether the filing is
made with or subsequent to the filing of a request for hearing," a petition for benefit
determination would not be subject to the rules at the time it is filed with the Bureau.
The Appeals Board heretofore identified the petition for benefit determination as "the
Bureau of Workers' Compensation's equivalent of a complaint." Duck v. Cox Oil Co.,
No. 2015-07-0089, 2016 TN Wrk. Comp. App. Bd. LEXIS 2, at *15 {Tenn. Workers'
Comp. App. Bd. Jan. 21, 2016). Accordingly, I read the lead opinion's conclusion that
the Tennessee Rules of Civil Procedure apply "to any action taken in, or pleading filed
with, the Court of Workers' Compensation Claims," as contemplating that an employee's
"complaint," which is filed with the Bureau prior to any action being taken in the Court
of Workers' Compensation Claims, is not subject to the Tennessee Rules of Civil
Procedure before a dispute certification notice is filed by a mediator with the Clerk of the
Court of Workers' Compensation Claims. See Tenn. Comp. R. & Regs. 0800-02-21-
.02(10). It remains unclear from the lead opinion whether it is the filing by the mediator
of the dispute certification notice, or some subsequent event, that triggers the
applicability of the Tennessee Rules of Civil Procedure.

        Rule 56 of the Tennessee Rules of Civil Procedure includes requirements that are
substantially more burdensome than either section 50-6-239(d)(4) or the rule adopted by
the Administrator contemplates. A motion pursuant to Rule 56 must be accompanied by
a "separate concise statement of the material facts as to which the moving party contends
there is no genuine issue for trial." The rule requires that each fact "shall be set forth in a
separate, numbered paragraph," and that "[e]ach fact shall be supported by a specific
citation to the record." Tenn. R. Civ. P. 56.03. Rule 56.03 includes additional
requirements that must be met by any party opposing a motion for summary judgment,
including filing "a response to each fact set forth by the movant (i) agreeing that the fact
is undisputed, (ii) agreeing that the fact is undisputed for purposes of ruling on the motion
for summary judgment only, or (iii) demonstrating that the fact is disputed." Id. Also,
each fact disputed must be supported by specific citations to the record. The non-
movant' s response may also contain "a concise statement of any additional facts that the
non-movant contends are material and as to which the non-movant contends there exists a
genuine issue to be tried." Id. In my view, requiring the parties to comply with the

                                              6
standards of Rule 56 in a contested motion filed by an employer pursuant to section 50-6-
239(d)(4) or Rule 0800-02-21-.14(3) violates the plain language of the provisions of the
Reform Act establishing the employer's right to file an appropriate motion and the
procedure adopted by the Administrator in Rule 0800-02-21-.14(3) to resolve the motion.

         Motions relying on section 50-6-239(d)(4) require that the trial court have
previously conducted an expedited hearing and denied benefits on the basis that the claim
 is not compensable. In my view, a trial court should have the discretion when addressing
 a motion to dismiss that is based upon section 50-6-239( d)( 4) to allow an employee
 sufficient time to resolve evidentiary inadequacies that resulted in a denial of temporary
disability or medical benefits at an expedited hearing. Allowing an employer to impose
the requirements of Rule 12.02(6) and Rule 56 too early in the process can force an
employee to resolve evidentiary inadequacies before the employee has received medical
care. The result can effectively require an employee to decide at an early stage of the
claim whether to pursue temporary disability or medical benefits in an expedited hearing
and thereby subject himself or herself to having to produce sufficient evidence of a
compensable claim to withstand a dismissal motion under section 50-6-239(d)(4) if
benefits are denied in the expedited hearing on the basis that the claim is not
compensable. The unsuspecting employee, who may not have been provided medical
care or who may not have not received temporary disability benefits and who attempts to
compel an employer to provide such benefits by requesting an expedited hearing, can find
himself or herself facing dismissal of the claim thirty days after a trial judge denies
benefits following an expedited hearing if the employee cannot obtain the requisite proof
to resolve evidentiary inadequacies at the expedited hearing. At that point the "lesser
evidentiary standard" applicable at an expedited hearing is no longer applicable. See
Buchanan v. Car/ex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd.
LEXIS 39, at *6 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). The employee would
face potential dismissal of the claim if evidence of an injury arising primarily out of and
in the course and scope of the employment, as defined in Tennessee Code Annotated
section 50-6-102(14), is not produced at that stage. An attorney may make an informed
decision whether to file a request for expedited hearing, knowing the burden the
employee may face in the event the expedited hearing results in a denial of benefits on
the basis that the claim is not compensable. However, an unrepresented employee could
find himself or herself at a precipice that could effectively conclude the claim with
prejudice should the employee be unable to resolve evidentiary inadequacies at that stage
in the face of an employer's section 50-6-239(d)(4) motion to dismiss. In my view, that
is not an intended or desirable effect of an employee's seeking benefits in an expedited
hearing and could be avoided by recognizing the procedure in Rule 0800-02-21-.14(3) as
an alternate procedural rule not controlled by or subject to the Tennessee Rules of Civil
Procedure. It would maintain an employer's right to pursue dismissal under section 50-6-
239(d)(4), and it would leave it to the discretion of the trial judge to enter an appropriate
order.


                                             7
        Applying the law to the facts in the instant case, the lead opinion concludes that
"under the circumstances of this case, ... Employee's failure to respond to Employer's
motion to dismiss, failure to challenge its legal sufficiency, and failure to appear at the
motion hearing supports the trial court's decision to dismiss the claim." I agree with this
conclusion; however, in my opinion it was unnecessary to address the issue presented in
the lead opinion or the application of the Tennessee Rules of Civil Procedure to reach this
conclusion. The employer made no attempt to comply with Rule 12.02(6) or Rule 56,
and the trial court did not analyze the employer's motion to dismiss under Rule 12.02(6)
or Rule 56. While the lead opinion holds that a trial court must treat a motion to dismiss
filed under section 50-6-239(d)( 4) or the corresponding regulation "as one filed pursuant
to any applicable rule of the Tennessee Rules of Civil Procedure," given the lead
opinion's conclusion that Rule 12.02(6) is the only "logical" rule to apply, the holding
effectively requires the parties to comply with the requirements of Rule 56 in any motion
relying on section 50-6-239(d)(4) if "matters outside the pleadings are presented to and
not excluded by the court." Tenn. R. Civ. P. 12.02(6). In my opinion, if the procedures
and standards of Rules 12.02(6) and 56 are to become applicable to motions to dismiss
that rely on section 50-6-239(d)(4), that determination should be made by the General
Assembly or the Administrator rather than the Appeals Board.

         The concurring opinion of my colleague concludes that "Rule 0800-02-21-.14(3)
is not an alternate procedural rule and, therefore, a motion to dismiss filed under that
regulation should be analyzed according to the Tennessee Rules of Civil Procedure." In
the words of my colleague, "[d]etaching Rule 0800-02-21-.14(3) motions to dismiss from
the Tennessee Rules of Civil Procedure would undermine both expectations [to benefit
employees by providing expeditious and certain recovery for work-related injuries and to
benefit employers by limiting their exposure to liability] by effectively creating a
standardless procedural device unknown in the law, resulting in needless and protracted
litigation over whether and under what circumstances such a motion should be granted or
denied." In my view, both the statute and the regulation contemplate that a trial judge
would have discretion to grant or deny a motion to dismiss that relies on section 50-6-
23 9( d)(4) and the corresponding regulation. The "abuse of discretion" standard
applicable to a trial judge's exercising such discretion is well-known to trial judges as are
the additional standards by which the Appeals Board reviews the decisions of workers'
compensation judges. See Tenn. Code Ann. § 50-6-217(3) (2015). If the Tennessee
Rules of Civil Procedure are applicable to a section 50-6-239(d)(4) motion to dismiss, as
the lead opinion holds, in my opinion Rule 41.02(1) identifies a more logical basis for a
motion to dismiss under section 50-6-239(d)(4) or the corresponding regulation. Rule
41.02(1) authorizes a court to dismiss a plaintiffs cause of action for failure to prosecute
the claim or to comply with the Rules of Civil Procedure or any order of the court. "The
standard of review for a trial court's decision to dismiss an action for failure to prosecute
is the standard of review for a discretionary action." Fischer v. Sverdrup Tech., Inc., No.
M2010-01095-WC-R3-WC, 2011 Tenn. Lexis 574, at *5 (Tenn. Workers' Comp. Panel
June 7, 2011). The lead opinion identifies this standard as a "deferential standard," and

                                             8
states that the standard "is simply inadequate in circumstances where an employee's
claim has been dismissed with prejudice." However, the Tennessee Supreme Court
Special Workers' Compensation Panel has heretofore affirmed dismissals with prejudice
based upon an employee's failure to prosecute under Rule 41.02 in which the "abuse of
discretion" standard was applied. See id.; see also Hanna v. Gaylord Entm 't Co., No.
M2004-00413-WC-R3-CV, 2006 Tenn. LEXIS 247 (Tenn. Workers' Comp. Panel Mar.
29, 2006). In my opinion, the lead opinion's perceived absence of a standard to provide
guidance to trial courts in ruling on an employer's motion to dismiss filed pursuant to
section 50-6-239(d)(4) can be remedied either by recognizing the "abuse of discretion"
standard to be applicable to such motions or by establishing another appropriate standard
without shackling the parties to the procedural requirements of a Rule 12.02(6) or Rule
56 motion. At any appropriate stage of a workers' compensation claim, an employer may
choose to file a motion to dismiss based upon Rule 12.02(6) or 41.02(1) or a motion for
summary judgment pursuant to Rule 56; however, it is not necessary to usurp the motion
authorized in section 50-6-239(d)(4) to do so.

        In enacting the Reform Act and adopting the corresponding regulations, the
General Assembly and the Administrator intended to simplify and expedite the
administration of claims resulting from workplace injuries. The statutory scheme for
accomplishing this objective included limiting in the Court of Workers' Compensation
Claims the applicability of the procedures that are available in the civil courts whose
jurisdiction to hear and resolve workers' compensation claims was removed by the
Reform Act. See Tenn. Code Ann. § 50-6-225(b) (2013). 2 In my opinion, the objectives
of the General Assembly and the Administrator can and should be accomplished without
the Appeals Board's imposing upon the parties in a workers' compensation claim the
requirements of the Tennessee Rules of Civil Procedure in a contested motion by an
employer to dismiss a claim under section 50-6-239(d)(4).




                                                  ~Workers' Compensation Appeals Board




2
  Prior to passage of the Reform Act, Tennessee Code Annotated section 50-6-225(b) (2013) provided
that "[t]he Tennessee Rules of Civil Procedure and the Tennessee Rules of Evidence apply to all civil
actions filed pursuant to this section." The General Assembly deleted this provision when it enacted the
Reform Act.

                                                   9
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Deborah Syph                                             )   Docket No. 2015-06-0288
                                                         )
v.                                                       )
                                                         )    State File No. 36614-2015
Choice Food Group, Inc.                                  )


                                     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 21st day of April, 2016.
 Name                    Certified   First Class   Via   Fax        Via     Email Address
                         Mail        Mail          Fax   Number     Email

 Deborah Syph                             X                           X     syphdeborah@gmail.com
 Michael Haynie                                                       X     mhaynie@manierherod.com
 Joshua Davis Baker                                                   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




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