                                                                                             FILED
                                                                                          May 02, 2019
                                                                                          11:20 AM(CT)
                                                                                       TENNESSEE COURT OF
                                                                                      WORKERS' COMPENSATION
                                                                                             CLAIMS




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

Kimberly Vickers,                                  )   Docket No. 2018-06-0149
           Employee,                               )
v.                                                 )
Amazon,                                            )   State File No. 8788-2015
               Employer,                           )
And                                                )
American Zurich Ins. Co.,                          )   Judge Kenneth M. Switzer
           Carrier.                                )


     COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT


       This case came before the Court on April 29, 2019, on Amazon's Motion for
Summary Judgment. The issue is whether Amazon is entitled to summary judgment
because Kimberly Vickers failed to file her claim within the statute of limitations. For
the reasons below, the Court finds she did not timely file and grants the motion.

                                        History of Claim

       Ms. Vickers became injured at work on December 23, 2014. Amazon accepted
the claim and provided treatment. According to Amazon's Statement of Undisputed
Material Facts, it last provided benefits on November 12, 2015. Ms. Vickers agreed that
Amazon last provided benefits on November 12, 2015, for purposes of this motion only. 1
Ms. Vickers filed a Petition for Benefit Determination on January 29, 2018. Her
opposition to this motion focuses on her attempts to file a petition before that date.

       Ms. Vickers's counsel's former legal assistant emailed the Bureau of Workers'
Compensation via the ombudsman program address on November 2, 2016, with
attachments. The email stated, "The original signed Petition has been forwarded by first
1
 The parties agreed that Amazon voluntarily paid benefits in 2018 for treatment administered in 2015.
This does not extend the limitations period. "Voluntary payments of compensation and medical treatment
occurring after the statute of limitations has already run are of no effect." Dye v. Witco Corp. , 216
S.W.3d 317,321 (Tenn. 2007).

                                                  1
class mail today." The attached letter stated, "Enclosed please find a copy of the
'Petition for Benefit Determination' form that was emailed to the designated email
address on November 2, 2016. I would appreciate your acknowledging, either by mail,
email or both that you have received this Petition." The letter did not copy Amazon's
carrier or opposing counsel. Ms. Vickers admitted, again for purposes of this motion
only, that she has no return receipt or any type of certificate of service documenting the
filing of any petition in the years 20 14 through 20 17.

        Ms. Vickers attached affidavits from her attorney and his current legal assistant in
response to the motion. They testified that the email sent to the ombudsman address on
November 2, 2016, was not returned as "undeliverable." Counsel further stated that the
copy of the petition that was sent via regular mail on the same date was never returned to
his office.

        Amazon argued that Ms. Vickers did not file the petition within the statute of
limitations. Ms. Vickers countered that the November 2, 2016 email and letter are a
"timely filing."

                                    Law and Analysis
                                                                 '
        Summary judgment is appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter oflaw." Tenn. R. Civ. P. 56.04.

        Amazon must do one of two things to prevail on its motion: (1) submit
affirmative evidence that negates an essential element of Ms. Vickers's claim, or (2)
demonstrate that Ms. Vickers's evidence is insufficient to establish an essential element
of her 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 Amazon is successful in
meeting this burden, Ms. Vickers must then establish that the record contains specific
facts upon which a trier of fact could base a decision in her favor. Rye, at 265.

        The applicable part of Tennessee Code Annotated section 50-6-203(b )(2) provides
the right to compensation is barred unless a petition for benefit determination is filed
within one year from the time the employer ceased to make payments of compensation.
Tennessee Code Annotated section 50-6-203(c) provides the issuing date of the last
payment of compensation by the employer constitutes the time the employer ceased
making payments. Ms. Vickers agreed with Amazon that it made the last payment of
legal significance here on November 12, 2015. Therefore, she needed to file a petition on
or before November 12, 2016. However, Ms. Vickers' petition is stamped as "filed" on
January 29, 2018, over one year and two months after the limitations period expired.


                                             2
         Amazon directed the Court's attention to rules defining the term "filed." It cited
the Bureau's General Rules definition, which apply to the Bureau as a whole. The rules
specific to practice in the Court of Workers' Compensation Claims also contain a
definition of "filed," which provides in relevant part: "For purposes of this chapter, a
pleading or other document required to be sent to the court shall be considered filed ... when
the material being transmitted reaches the [Bureau) or its designated agent, if transmitted by
first-class mail, facsimile, [or] electronic mail[.]" Tenn. Comp. R. & Regs. 0800-02-21-.02
(June, 20 15) (emphasis added). An email to an ombudsman, where there is no proof that
an ombudsman or any other Bureau staff received it or provided the requested
acknowledgment of receipt, cannot suffice as proof of filing. Stated another way, Ms.
Vickers submitted no proof that her email or letter reached the Bureau.

        Ms. Vickers's counsel correctly observed that the petition instructs to email the
form to the ombudsman address. However, as previously noted, he offered no proof that
the Bureau received the petition; rather, he offered proof that the petition did not return to
his office. The two are not equivalent. He also gave no explanation for his failure to
follow up with the Bureau within a reasonable time when he did not receive a file-
stamped copy of the petition. Rather, he waited well over two years before filing the
petition.

       Counsel further argued that a grant of summary judgment on this issue is an
inequitable result. However, the above-quoted summary judgment standards do not
allow for a consideration of the equities. The Court does not enter judgment_ lightly but is
bound to apply the law as it is written. The one-year statute of limitations makes no
exception for attempts at filing.

       Therefore, the Court holds Ms. Vickers did not file her petition within one year
from the time Amazon made its last payment of compensation. The Court must hold that
Ms. Vickers's right to compensation is barred under the statute of limitations.

IT IS, THEREFORE, ORDERED as follows:

   1. Amazon's Motion for Summary judgment is granted, and Ms. Vickers's claim for
      the requested workers' compensation benefits is dismissed on the merits with
      prejudice to its refiling.

   2. The filing fee of $150.00 is taxed to Amazon under Tennessee Compilation Rules
      and Regulations 0800-02-21-.07 (2018), to be paid to the Court Clerk within five
      days of the entry of this order, and for which execution may issue as necessary.

   3. Amazon shall prepare and submit the SD-2 to the Court Clerk within ten days of
      the date of judgment.


                                              3
   4. Absent appeal, this order shall. become final thirty days after entry.

      ENTERED May 2, 2019.




                                   Ju(lgc Kenneth M. S tzer
                                   Court of Workers' Compensati


                             CERTIFICATE OF SERVICE

      I certify that a copy of this Order was sent to the following recipients by these
methods of service on May 2, 2019.

         Name              Certified     Via        Via    Service sent to:
                            Mail         Fax       Email
Michael Jennings,                                    X     mjenningslaw@aol.com
Employee's Attorney
Troy Hart, Tiffany                                  X      wth@mijs.com;
Sherrill,                                                  tbsherrill@mijs.com
Employer's Attorneys



                                   _&S~ »vUk---
                                   Penny       Clerk
                                   Court  o~~J:/kers'
                                                   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.
 '                                                                                                                       I




                                    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
