                                                                                                 FILED
                                                                                              Aug 20, 2019
                                                                                              01:38 PM(CT)
                                                                                               TENNESSEE
                                                                                          WORKERS' COMPENSATION
                                                                                             APPEALS BOARD

              TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                 WORKERS’ COMPENSATION APPEALS BOARD

Kimberly Vickers                                     ) Docket No. 2018-06-0149
                                                     )
v.                                                   ) State File No. 8788-2015
                                                     )
Amazon, et al.                                       )
                                                     )
                                                     )
Appeal from the Court of Workers’                    )
Compensation Claims                                  )
Kenneth M. Switzer, Chief Judge                      )

                                 Affirmed and Certified as Final

In this compensation appeal, the trial court concluded the employee’s petition for benefits
was untimely and granted the employer’s motion for summary judgment. The employee
has appealed, arguing the trial court erred in concluding there were no genuine issues of
material fact regarding the timeliness of the petition for benefits. Upon careful review,
we affirm the trial court’s order granting summary judgment, deny the employer’s
request for attorneys’ fees, and certify the order as final.

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

Michael Jennings, Lebanon, Tennessee, for the employee-appellant, Kimberly Vickers

W. Troy Hart and Tiffany B. Sherrill, Knoxville, Tennessee, for the employer-appellee,
Amazon

                              Factual and Procedural Background

       Kimberly Vickers (“Employee”), a resident of Wilson County, Tennessee, worked
for Amazon (“Employer”) at its Murfreesboro facility. Employee alleges that on
December 23, 2014, she suffered injuries to her left shoulder and neck as the result of a
fall on a loading dock. She sought medical care the following day at AmCare,
Employer’s on-site clinic. 1
1
 Because of the procedural posture of this case, the record contains little evidence concerning the nature
of Employee’s alleged injuries or her medical care. Because those facts are not relevant to the legal issue
on appeal, we need not discuss Employee’s medical status further.
                                                    1
        On November 2, 2016, a legal assistant for Employee’s attorney sent an email to
“wc.ombudsman@tn.gov,” to which a petition for benefits was attached. 2 The email
indicated the petition was also being forwarded to the Tennessee Bureau of Workers’
Compensation (“Bureau”) via United States mail. Employee submitted a copy of a cover
letter dated November 2, 2016, which purportedly accompanied the petition for filing.
There is no evidence in the record indicating the email or petition was received by an
ombudsman or anyone else at the Bureau or that it was marked or stamped filed. Over a
year later, when Employee’s attorney discovered there was no petition pending with the
Bureau, he submitted another petition that was marked “filed” on January 29, 2018.

       Thereafter, Employer filed a motion for summary judgment contending that
Employee’s statute of limitations had expired. In her response to Employer’s statement
of undisputed facts, Employee admitted that, for purposes of the motion for summary
judgment, no benefits had been paid on her claim for more than one year after a medical
payment on November 12, 2015. 3 Furthermore, in response to Employer’s requests for
admissions, Employee admitted she had no documentation from the Bureau indicating
that a petition for benefits had been filed at any time between the date of the accident in
2014 and the end of 2017. However, Employee asserted that the November 2, 2016
email to “wc.ombudsman@tn.gov” complied with the instructions provided on the
Bureau’s Petition for Benefit Determination form and that the email with attachments
constituted a valid and timely filing of her petition. Employee further alleged that her
attorney’s office never received an error message or notification that the November 2,
2016 email was returned “undeliverable.” 4

        Following a hearing on Employer’s motion for summary judgment, the trial court
entered an order on May 2, 2019 granting Employer’s motion. The trial court reasoned
that an unsuccessful attempt to transmit for filing a petition for benefits, absent proof that
it had been received and filed by the Bureau, could not toll the applicable statute of
limitations. Employee has appealed.

2
  It is unclear why the “Petition for Benefit Determination” form provided by the Bureau of Workers’
Compensation includes an email address only for the Bureau’s ombudsman program but not for the clerk
of the Court of Workers’ Compensation Claims.
3
  The record is inconsistent regarding the date of the last voluntary payment, identifying both November
12, 2015 and November 12, 2016 as the date Employer last made a voluntary payment. Regardless of
which date is correct, it is clear that more than one year passed after the last voluntary payment and before
the filing of Employee’s petition in January 2018. The parties agree that another payment was made by
Employer in January 2018. However, a voluntary payment made after the expiration of a statute of
limitations cannot revive an untimely claim. See Dye v. Witco Corp., 216 S.W.3d 317, 321 (Tenn. 2007).
4
  The cover letter accompanying the petition sent by U.S. mail showed a handwritten correction made to
the zip code. There is no indication whether the envelope containing the cover letter and petition had a
similar error, or whether a correction had been made to the zip code on the envelope. Regardless, there is
no proof in the record that the petition was ever delivered to or received by anyone at the Bureau.
                                                     2
                                  Standard of Review

       A trial court’s ruling on a motion for summary judgment is reviewed de novo with
no presumption of correctness. Wallis v. Brainerd Baptist Church, 509 S.W.3d 886, 895
(Tenn. 2016) (“we make a fresh determination of whether the requirements of Rule 56 of
the Tennessee Rules of Civil Procedure have been satisfied”). We are mindful of our
obligation to construe the workers’ compensation statutes “fairly, impartially, and in
accordance with basic principles of statutory construction” and in a way that does not
favor either the employee or the employer. Tenn. Code Ann. § 50-6-116 (2018).

                                        Analysis

                                  Statute of Limitations

      Tennessee’s Workers’ Compensation Law sets out the limitations period in cases
where an employer has voluntarily provided workers’ compensation benefits as follows:

       In instances when the employer has voluntarily paid workers’
       compensation benefits, within one (1) year following the accident resulting
       in injury, the right to compensation is forever barred, unless a petition for
       benefit determination is filed with the bureau on a form prescribed the
       administrator within one (1) year from the latter of the date of the last
       authorized treatment or the time the employer ceased to make payments of
       compensation to or on behalf of the employee.

Tenn. Code Ann. § 50-6-203(b)(2) (2018). In the present case, it is undisputed that
Employee’s last authorized medical appointment was October 8, 2015, the last voluntary
payment was issued either November 12, 2015 or November 12, 2016, and no further
benefits were paid until January 2018. Therefore, unless Employee’s attempt to file a
petition on November 2, 2016 tolled the statute of limitations, the eventual filing of her
petition in January 2018 was untimely.

                                    Filing of Petitions

        The Tennessee Court of Workers’ Compensation Claims, which has exclusive
jurisdiction over all workers’ compensation claims with dates of injury on or after July 1,
2014, conducts all hearings in accordance with 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)(1). Thus, in
examining the process for filing petitions and other pleadings, we must consider both the
Rules of Civil Procedure and the rules and regulations applicable to the Bureau.



                                            3
       Rule 3 of the Tennessee Rules of Civil Procedure provides that “all civil actions
are commenced by filing a complaint with the clerk of the court.” Tenn. R. Civ. P. 3
(emphasis added). Moreover, “[a]n action is commenced within the meaning of any
statute of limitations upon such filing of a complaint.” Id. We have previously
concluded that a petition for benefit determination is the Bureau’s general equivalent of a
complaint as contemplated in the Tennessee Rules of Civil Procedure. Valladares v.
Transco Prods., Inc., No. 2015-01-0117 & -0118, 2016 TN Wrk. Comp. App. Bd. LEXIS
31, at *17 (Tenn. Workers’ Comp. App. Bd. July 27, 2016). Thus, unless the Bureau’s
administrator has adopted an alternate procedural rule, petitions for benefit determination
must be filed with the clerk of the Court of Workers’ Compensation Claims in order to
commence a cause of action for workers’ compensation benefits.

     The rules and regulations applicable to the Tennessee Court of Workers’
Compensation Claims define the word “filed” as follows:

        [A] pleading or other document required to be sent to the court shall be
        considered filed only on the date and time received by the clerk if delivered
        by hand to the clerk’s offices in Nashville or any other office maintained by
        the Bureau during normal business hours; on the date posted to the clerk if
        sent by U.S. certified or registered mail, return receipt requested, or other
        equivalent manner; or when the material being transmitted reaches the
        Bureau or its designated agent, if transmitted by first class mail, facsimile,
        electronic mail or other means of electronic transmission approved or
        required by the Bureau.

Tenn. Comp. R. & Regs. 0800-02-21-.02(14) (2018) (emphases added). 5 This rule
identifies the clerk of the court as the designated agent of the Bureau for purposes of
receiving documents to be filed with the court. It does not identify ombudsmen or
ombudsmen-attorneys as agents of the Bureau for purposes of receiving documents to be
filed. 6

     In addition, Tennessee Code Annotated section 50-6-216 governs the Bureau’s
ombudsman program. This program is designed to “assist injured or disabled employees,
5
  As of August 1, 2019, this definition was amended as follows: “For purposes of this chapter, a document
is considered filed: (a) on the date and time received by the clerk if hand-delivered to any bureau office
during normal business hours; (b) on the date posted to the clerk if sent by U.S. certified or registered
mail, return receipt requested, or its equivalent; (c) on the date the document reaches the clerk if
transmitted by first-class mail, facsimile, or by electronic transmission approved by the bureau; or (d) on
the date and time filed in TNComp.” Tenn. Comp. R. & Regs. 0800-02-21-.02(15) (2019).
6
 The General Rules of the Workers’ Compensation Program also define the word “file,” stating that a
document is not successfully filed with the Bureau unless “its acceptance is acknowledged by the
Bureau.” Tenn. Comp. R. & Regs. 0800-02-01-.02(8) (2018).


                                                    4
persons claiming death benefits, employers, and other persons in protecting their rights,”
but is available “only to those individuals or organizations that are not represented by an
attorney in the claim for workers’ compensation benefits.” Tenn. Code Ann. § 50-6-
216(a) (2018). Nothing “of legal significance that occurs in the presence of an
ombudsman” is admissible as evidence in court. Tenn. Code Ann. § 50-6-216(b). An
ombudsman’s authority includes: (1) providing information to unrepresented parties
about the parties’ rights and responsibilities under the law; (2) explaining the process for
resolving workers’ compensation claims; (3) attempting to resolve disputes between the
parties without resort to alternative dispute resolution or court proceedings; (4)
communicating with all parties and medical care providers; (5) assisting in the
completion of forms; and (6) facilitating the exchange of medical records. Tenn. Code
Ann. § 50-6-216(e)(2). An ombudsman cannot be called to testify in any proceeding,
Tennessee Code Annotated section 50-6-216(e)(4), and “shall terminate all services”
upon learning that a party being assisted has retained an attorney, Tennessee Code
Annotated section 50-6-216(e)(5). The rules governing the Court of Workers’
Compensation Claims and alternative dispute resolution reiterate the role of ombudsmen
and their duties. Tenn. Comp. R. & Regs. 0800-02-21-.04 (2018). 7 Nothing in the
statute or rules indicates that ombudsmen or ombudsmen-attorneys are designated by the
Bureau to receive documents for filing with the Court of Workers’ Compensation Claims.

        In short, a petition for benefit determination commences a cause of action when it
is filed with the clerk of the Court of Workers’ Compensation Claims. An email sent to a
Bureau ombudsman, even if a petition is attached to the email, does not comply with the
filing requirements of the Tennessee Rules of Civil Procedure or the rules and regulations
applicable to the Bureau and the Court of Workers’ Compensation Claims. Therefore,
we conclude that Employee’s attempt to submit a petition for filing by attaching it to an
email addressed to a Bureau ombudsman did not constitute a “filing” and did not toll the
applicable statute of limitations.

       Finally, Employer has requested that we find Employee’s appeal to be frivolous
and award it attorneys’ fees. The issue of what constitutes the proper procedure for filing
documents with the Court of Workers’ Compensation Claims is one of first impression.
Under such circumstances, we conclude Employee’s appeal was not frivolous, and we
decline to award Employer attorneys’ fees.

                                           Conclusion

       For the foregoing reasons, the trial court’s order granting summary judgment is
affirmed and certified as final, and Employer’s request for attorneys’ fees is denied.
Costs on appeal are taxed to Employee.

7
 The rules discussing the role of ombudsmen were amended as of August 1, 2019, and are now located at
Tenn. Comp. R. & Regs. 0800-02-21-.09 (2019).
                                                 5
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Kimberly Vickers                                        )     Docket No. 2018-06-0149
                                                        )
v.                                                      )     State File No. 8788-2015
                                                        )
Amazon, et al.                                          )
                                                        )
                                                        )
Appeal from the Court of Workers’                       )
Compensation Claims                                     )
Kenneth M. Switzer, Chief Judge                         )

                                     CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 20th day of August, 2019.

 Name                              Certified   First   Via   Fax      Via     Sent to:
                                   Mail        Class   Fax   Number   Email
                                               Mail
 Michael R. Jennings                                                    X     mjenningslaw@aol.com
 W. Troy Hart                                                           X     wth@mijs.com
 Tiffany B. Sherrill                                                    X     tbsherrill@mijs.com
 Kenneth M. Switzer, Chief Judge                                        X     Via Electronic Mail
 Penny Shrum, Clerk, Court of                                           X     penny.patterson-shrum@tn.gov
 Workers’ Compensation Claims




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