          IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                           AT NASHVILLE

ZECHARIAH HARRIS                            )   Docket No. 68533-2014
        Employee,                           )
                                            )   State File No. 2014-06-0018
v.                                          )
                                            )   Date of Injury: July 23, 2014
                                            )
SUBWAY,                                     )   Judge Joshua Davis Baker
             Employer,                      )
                                            )
and                                         )
                                            )
ZURICH NORTH AMERICA,                       )
         Insurance Carrier.                 )
                                            )

             ORDER GRANTING SUBWAY’S MOTION TO DISMISS


       The Court convened telephonically on March 14, 2016, for hearing of a Motion to
Dismiss filed by the employer, Subway, pursuant to Rules 37.02 and 41.02 of the
Tennessee Rules of Civil Procedure. In its Motion, Subway argued that the claim should
be dismissed because Zechariah Harris failed to comply with the Court’s Initial Hearing
Order entered on November 18, 2015, and the Court’s Order Granting Subway’s Motion
to Compel Discovery entered on January 26, 2016. Subway also cited Mr. Harris’ failure
to prosecute his claim in general as grounds for dismissal. For the reasons provided, the
Court grants Subway’s motion and dismisses Mr. Harris’ claim.

                            Relevant Factual Background

      Mr. Harris is a thirty-two-year-old resident of Davidson County, Tennessee, who
worked for Subway preparing sandwiches. Mr. Harris claimed he suffered a spider bite
at work and reported the injury. Subway denied the claim, and Mr. Harris sought medical
care on his own at Meharry Medical Center. He then filed a Petition for Benefit
Determination on August 28, 2014, seeking medical and temporary disability benefits.


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       The parties failed to settle the temporary benefits issue at mediation, and the
Mediating Specialist filed a Dispute Certification Notice vesting jurisdiction in this
Court. Mr. Harris has been lax in pursuing his claim. He failed to file a Request for
Hearing within sixty days of the filing the Dispute Certification Notice’s issuance, so the
Court set the claim for a show cause hearing. At the show cause hearing, Mr. Harris
stated he failed to request a hearing due to communication problems with the insurance
adjuster. The Court granted Mr. Harris additional time to request a hearing; he filed a
Request for Expedited Hearing on May 8, 2015, and an amended Request for Expedited
Hearing with an affidavit on July 8, 2015.

       The Court held an Expedited Hearing on August 19, 2015, and Mr. Harris and
counsel for Subway both appeared. Mr. Harris testified at the hearing but called no other
witnesses. He testified he developed cellulitis from a spider bite but provided no medical
proof to support his theory. On September 8, 2015, the Court issued an order finding that
Mr. Harris was not entitled to temporary disability or medical benefits:

      Meharry diagnosed him with cellulitis of the right finger after admitting
      him to the hospital to treat his swollen hand. Mr. Harris, however,
      presented none of the medical records from this hospital visit that would
      indicate what caused him to develop cellulitis. Although it is not necessary
      for Mr. Harris to prove medical causation in order to receive temporary
      medical benefits, See McCord, No. 2014-06-0063, 2015 TN Wrk. Comp.
      App. Bd. LEXIS 6, at *17-19, the information contained in the records may
      have helped the Court to better understand exactly what caused Mr. Harris’
      hand to swell, especially in light of his nonspecific testimony about the
      injury causing event. Based on the evidence before it at this time, the Court
      does not find that Mr. Harris is likely to prevail at a hearing on the merits.

       After the Court denied his request for temporary disability and medical benefits,
the Court convened an Initial Hearing via telephone on October 13, 2015, to prepare a
scheduling order and set the case for a Compensation Hearing. Subway’s attorney,
Margaret Noland, called the teleconference line and participated in the hearing; Mr.
Harris did not.

       At the Initial Hearing, Ms. Noland informed the Court she requested a HIPAA
release so she could obtain Mr. Harris’ medical records from Meharry. She stated Mr.
Harris refused to provide the release. The Court issued an order continuing the Initial
Hearing until November 17, 2015, ordered Mr. Harris to provide Subway with a HIPAA
release to procure his medical records, and freed the parties to exchange written
discovery. Additionally, in its Order, the Court admonished Mr. Harris that his lack of
participation could result in the dismissal of his claim for failure to prosecute.



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       On November 17, 2015, the Court reconvened the Initial Hearing via
teleconference. Mr. Harris and Ms. Noland participated in the teleconference. At the
conclusion of the Initial Hearing, the Court issued an Initial Hearing Order outlining the
parties’ pretrial responsibilities and setting the case for a Compensation Hearing. That
same day Subway served interrogatories and requests for production of documents on
Mr. Harris via United States mail, postage prepaid. Mr. Harris failed to respond to
Subway’s discovery requests.

       On December 22, 2015, Subway sent Mr. Harris a letter asking that he provide
discovery responses by January 4, 2016. Mr. Harris failed to respond, and Subway filed
its Motion to Compel Discovery. The Court ordered Mr. Harris to provide responses to
Subway’s discovery requests by February 2, 2016. Mr. Harris failed to comply with the
order.

        On February 9, 2016, Subway filed its Motion to Dismiss for Mr. Harris’ failure to
respond to Subway’s discovery requests and failure to comply with this Court’s Order
Compelling Discovery. The Court notified Mr. Harris to appear by telephone on March
14, 2016, for the hearing of Subway’s Motion to Dismiss. Mr. Harris failed to call in,
prompting the Court to telephone him at the number he provided. Mr. Harris did not
answer the call from the Court, and the hearing proceeded without him in attendance.
During the hearing, Subway argued this Court should dismiss Mr. Harris’ claim due to
his failure to comply with this Court’s orders in violation of Rule 37.02 of the Tennessee
Rules of Civil Procedure and his failure to comply with Court rules or prosecute his claim
according to Rule 41.02.

                                        Analysis

       Rule 37.02 of the Tennessee Rules of Civil Procedure Rule provides that when a
party “fails to obey an order to provide or permit discovery, the court in which the action
is pending may make such orders in regard to the failure as are just, and among others the
following: . . .(C) An order . . . dismissing the action or proceeding [.]” Additionally,
“for failure of the [employee] to prosecute or to comply with these rules or any order of
course, the [employer] may move for dismissal of an action or of a claim against the
defendant.” Tenn. R. Civ. P. Rule 41.02(1).

       This case is set for a Compensation Hearing on June 15, 2016. To have an
effective hearing, Mr. Harris must participate in the discovery process. Mr. Harris failed
to obey two Court orders concerning discovery; he failed to comply with the January 15,
2016 deadline for completion of written discovery contained in the Initial Hearing Order,
and he failed to comply with the Court’s January 26, 2016 Order Compelling Discovery.

     In addition to failing to comply with the Orders, Mr. Harris did not answer
Subway’s Motion to Compel Discovery and Motion to Dismiss, and failed to call the

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teleconference line to participate in the hearings of these motions. Although Mr. Harris is
representing himself in this action, he still must comply with Court orders and must take
action to pursue his claim. The burden on Mr. Harris was not high; he only needed to
provide answers to discovery or, at the very least, participate in telephonic motion
hearings and provide a reason why he failed to answer discovery.

      Subway has a right to discovery in this case. Because Mr. Harris refused to
provide discovery and ignored orders from this Court requiring that he do so, the Court
finds Subway’s Motion to Dismiss well-taken and grants the motion. The Court
dismisses Mr. Harris’ claim with prejudice.

IT IS, THEREFORE, ORDERED as follows:

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

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

      3. Unless an appeal of is filed with the Workers’ Compensation Appeals
         Board or the Tennessee Supreme Court, this order shall become final in
         thirty days.


ENTERED ON THIS THE 12TH DAY OF APRIL, 2016.


                                   _____________________________________
                                   Judge Joshua Davis Baker
                                   Court of Workers’ Compensation Claims


Right to Appeal:

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

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

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

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

4. The appealing party is responsible for payment of a filing fee in the amount of
   $75.00. Within ten calendar days after the filing of a notice of appeal, payment
   must be received by check, money order, or credit card payment. Payments can be
   made in person at any Bureau office or by United States mail, hand-delivery, or
   other delivery service. In the alternative, the appealing party may file an Affidavit
   of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
   fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
   of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
   will consider the Affidavit of Indigency and issue an Order granting or denying
   the request for a waiver of the filing fee as soon thereafter as is
   practicable. Failure to timely pay the filing fee or file the Affidavit of
   Indigency in accordance with this section shall result in dismissal of the
   appeal.

5. The party filing the notice of appeal, having the responsibility of ensuring a
   complete record on appeal, may request from the Court Clerk the audio recording
   of the hearing for the purpose of having a transcript prepared by a licensed court
   reporter and filing it with the Court Clerk within fifteen calendar days of the filing
   of the Notice of Appeal. Alternatively, the party filing the appeal may file a joint
   statement of the evidence within fifteen calendar days of the filing of the Notice of
   Appeal. The statement of the evidence must convey a complete and accurate
   account of what transpired in the Court of Workers’ Compensation Claims and
   must be approved by the workers’ compensation judge before the record is
   submitted to the Clerk of the Appeals Board. See Tenn. Comp. R. & Regs. 0800-
   02-22-.03 (2015).

6. After the Workers’ Compensation Judge approves the record and the Court Clerk
   transmits it to the Workers’ Compensation Appeals Board, the appeal will be
   docketed and assigned to an Appeals Board Judge for Review. At that time, a
   docketing notice shall be sent to the parties. Thereafter, the parties have fifteen
   (15) calendar days to submit briefs to the Appeals Board for consideration. See
   Tenn. Comp. R. & Regs. 080002-22-.02(3).




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                                CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Order on Employer’s Motion to
 Dismiss was sent to the following recipients by the following methods of service on this
 the _____
      12th day of April, 2016.


Name                Certified   First   Via   Fax      Via     Email Address
                    Mail        Class   Fax   Number   Email
                                Mail
Zechariah Harris       x                                 x     83 Lutie Street, Nashville, TN 37210
                                                               zach81harris@gmail.com
Margaret Noland                                          x     mnoland@wimberlylawson.com



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




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