                                                                                FILED
                                                                               Jan 18, 2019
                                                                              03:04 PM(CT)
                                                                            TENNESSEE COURT OF
                                                                           WORKERS' COMPENSATION
                                                                                  CLAIMS




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

EDWARD FONSECA,                            )
        Employee,                          )   Docket No. 2018-06-0299
v.                                         )
                                           )
RIMAX CONTRACTORS, INC.,                   )
        Employer,                          )
                                           )
JAMES MCHUGH                               )   State File No. 20931-2017
CONSTRUCTION,                              )
         Statutory Employer,               )
And                                        )
                                           )
ARCH INSURANCE COMPANY,                    )
         Carrier.                          )   Judge Joshua Davis Baker


               COMPENSATION HEARING ORDER GRANTING
                  MOTION FOR SUMMARY JUDGMENT


       This case came before the Court on January 14, 2019, on McHugh Construction’s
motion for summary judgment. Mr. Fonseca did not respond to the motion. The Court
grants the motion and dismisses this claim against McHugh with prejudice because it is
barred by the statute of limitations.

                       Procedural History and Material Facts

       Mr. Fonseca injured his back on a commercial construction site in Nashville while
working for Rimax on May 16, 2016. Rimax worked as subcontractor on the site, and
James McHugh Construction (McHugh) worked as the general contractor. An
intermediate subcontractor for McHugh had hired Rimax. Although Mr. Fonseca knew
another company had hired Rimax, he did not know that McHugh was the general
contractor.
      Mr. Fonseca filed a claim against Rimax and its insurer, Granite State Insurance
Company (Granite), in Georgia, because Rimax was headquartered there. However, the
Georgia claim stalled within months due to lack of jurisdiction.

        Shortly after filing in Georgia, Mr. Fonseca filed a petition for benefit
determination (PBD) against Rimax and Granite in Tennessee as a self-represented
litigant. However, Granite secured a default declaratory judgment in the Shelby County
Circuit Court that absolved its liability.

        Since the default judgment declared Granite was not insuring Rimax at the time of
his injury, this left Rimax uninsured. In an attempt to collect some benefits, Mr. Fonseca
retained counsel and filed a motion to add McHugh as a party to the claim. The Court
granted his motion, and he served and filed a PBD against McHugh on February 20,
2018.

       After an expedited hearing, the Court held that, while Mr. Fonseca was likely to
prevail in proving entitlement to benefits in Tennessee, he was unlikely to prevail against
McHugh because the statute of limitations barred his claim. McHugh moved for
summary judgment and sent a copy of its motion to Mr. Fonseca. Mr. Fonseca did not
respond.

                                    Law and Analysis

        Tennessee Rule of Civil Procedure 56.04 states summary judgment is appropriate
if there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. To meet this standard, McHugh must either submit
affirmative evidence to negate an essential element of Mr. Fonseca’s claim or
demonstrate that his evidence is insufficient to establish an essential element of his claim.
Tenn. Code Ann. § 20-16-101 (2018); see also Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015).

       If McHugh carries this burden, then Mr. Fonseca “may not rest upon the mere
allegations or denials of [his] pleading” but must respond by producing facts showing a
genuine issue for trial. Id.; Tenn. R. Civ. P. 56.06. The Court holds that McHugh met its
burden of demonstrating Mr. Fonseca cannot establish his claim against McHugh and its
insurer, as the statute of limitations bars his claim.

       Mr. Fonseca failed to respond to the motion. While that failure does not mandate
entry of summary judgment, it does prevent him from disputing any of the facts in
McHugh’s statement of material facts. See United Serv’s Inds., Inc. v. Sloan, 1988 Tenn.
App. LEXIS 592, *4 (Tenn. Ct. App. Sept. 28, 1988) (“An adverse party’s failure to
respond to a motion for summary judgment does not relieve the moving party of the
burden of establishing an entitlement to judgment as a matter of law; rather, an absence

                                             2
of response only precludes factual disputes.”). Without a response, the Court accepts
McHugh’s facts: chiefly that Mr. Fonseca did not include McHugh as a party until filing
a PBD against it and its insurer on February 20, 2018.

        Under the Workers’ Compensation Law, the statute of limitations bars a claim
“when the employer has not paid workers’ compensation to or on behalf of the employee
. . . unless the notice required by § 50-6-201 is given to the employer and a petition for
benefit determination is filed . . . within one (1) year after the accident resulting in
injury.” Tenn. Code Ann. § 50-6-203(b)(1).

        Here, Mr. Fonseca cannot establish a claim against McHugh because the statute of
limitations expired when he did not file against McHugh until nearly two years after his
alleged date of injury. As the nonmoving party, Mr. Fonseca must “demonstrate the
existence of specific facts in the record which could lead a rational trier of fact to find in
favor of the nonmoving party.” Rye, at 265. “The focus is on the evidence the
nonmoving party comes forward with at the summary judgment stage, not on
hypothetical evidence that theoretically could be adduced . . . at a future trial.” Id.
Because Mr. Fonseca failed to produce proof his claim against McHugh was not barred
by the statute of limitations, he failed to carry this burden.

IT IS, THEREFORE, ORDERED AS FOLLOWS:

   1. The Court grants McHugh’s motion for summary judgment and dismisses Mr.
      Fonseca’s claim with prejudice to its refiling.

   2. Absent an appeal to the Appeals Board, this order shall become final in thirty
      days.

   3. The Court assesses the $150.00 filing fee against McHugh under Tennessee
      Compilation Rules and Regulations 0800-02-21-.07, for which execution may
      issue as necessary. McHugh shall pay the filing fee within five business days of
      the order becoming final.

   4. McHugh shall file form SD-2 with the clerk, via email at wc.courtclerk@tn.gov,
      within ten business days of this order becoming final.


ENTERED JANUARY 18, 2019.



                                           __________________________________
                                           Judge Joshua Davis Baker
                                              3
                                   Court of Workers’ Compensation Claims
                          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 January 18, 2019.

Name                     Certified   Fax       Email   Service sent to:
                          Mail
David Goodman,                                  X      dgoodman@forthepeople.com
Employee’s Attorney

Sean Hunt,                                      X      sean@thehuntfirm.com
Attorney for James
McHugh Construction
Rimax Contractors,          X                          2940 Horizon Park Drive, Suite C
Inc.                                                   Suwanee, Georgia 30024
                                                       ricardo@rimaxcontractors.com



                                       ______________________________________
                                       Penny Shrum, Court Clerk
                                       Court of Workers’ Compensation Claims
                                       wc.courtclerk@tn.gov




                                           4
                                 II
                                  I                                                       'I



                          Compensation Hearing Order Right to Appeal:

     If you disagree with this Compensation Hearing Order, you may appeal to the Workers'
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers'
Compensation Appeals Board, you must:

    1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal," and file
       the form with the Clerk of the Court of Workers' Compensation Claims within thirty
       calendar days of the date the compensation hearing order was filed. When filing the
       Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if
       represented).

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau's
      website or any Bureau office) seeking a waiver ofthe filing fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of lndigency will
      result in dismissal of your appeal.

   3~   You bear the responsibility of ensuring a complete record on appeal. You may request
        from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court
        reporter must prepare a transcript and file it with the court clerk within fifteen calendar
        days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
        evidence prepared jointly by both parties within fifteen calendar days of the filing of the
        Notice of Appeal. The statement of the evidence must convey a complete and accurate
        account of the hearing. The Workers' Compensation Judge must approve the statement
        of the evidence before -the record is submitted to the Appeals Board. If the Appeals
        Board is called upon to review testimony or other proof concerning factual matters, the
        absence of a transcript or statement of the evidence can be a significant obstacle to
        meaningful appellate review.

   4. After the Workers' Compensation Judge approves the record and the court clerk transmits
      it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
      party has fifteen calendar days after the date of that notice to submit a brief to the
      Appeals Board. See the Practices and Procedures of the Workers' Compensation
      Appeals Board.

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court's
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann.§ 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
II                                                                                                                      I.
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                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                      800-332-2667

                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ __ _ _ _ _ __                       2. Address: - - - - - - - -- - - --

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - -- - - -- -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -

             - - - - - - - - - - - - - -- --                  Relationship: - - - - - -- - - -- - -

             - - - - - - - - - - -- - -- - - Relationship: - - - -- - -- - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - -- - - -- -

     6. I am employed by: - - - - - - - - - - -- - - -- - - - - - -- - - -- - -

             My employer's address is: - - - - -- - - - -- - - - - - -- - -- - - - -

             My employer's phone number is: - - - -- - - - -- - - - - - -- - - -- - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ __

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are:     ! ~                                                      li
                                                                                  I
                          '

        Rent/House Payment $              per month     Med icai/Dental $ _ _ ___ per month

        Groceries       $           per month           Telephone       $ _ __ _ _ per month
        Electricity     $           per month           School Supplies $ _ _ _ _ _ per month
        Water           $           per month           Clothing        $ _ _ _ _ _ per month
        Gas             $           per month           Child Care      $ _ _ _ _ _ per month
        Transportation $            per month           Child Support   $ _ _ _ _ _ per month
        Car             $            per month
        Other           $           per month (describe:


10. Assets:

        Automobile              $ _ _ _ __
                                                        (FMV) - - - - - - - - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ __
                                                        (FMV) - - - - - - - - - -
        Other                   $ _ _ _ __              Describe:_ _ _ _ __ _ __ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

____ dayof _____________________ , 20_ __




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ _ __




LB-1108 (REV 11/15)                                                                          RDA 11082
