The opinion
COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
ALICE HOBAUGH-MENDEZ, )
Employee, ) Docket No.: 2014-05-0027
)
v. ) State File No.: 71599-2014
)
SUNOCO/TIGERMARKET ) Date of Injury: AUGUST 12, 2014
SOUTHSIDE )
OIL, )
) Judge: BAKER
Employer, )
)
And )
)
ACE AMERICAN INS. CO. )
ORDER OF DISMISSAL
THIS CAUSE came before the undersigned Workers' Compensation Judge on the Motion
to Dismiss filed by Sunoco/Tigermarket/Southside Oil (Tigermarket). The Court conducted the
hearing by telephone. Attorney David Deming represented Tigermarket at the hearing. Alice
Hobaugh-Mendez (Ms. Mendez) participated without an attorney.
The Court issued an Order on June 16, 2015. In that order, the Court stated that it would
grant Tigermarket’s Motion if Ms. Mendez failed to file a response by June 29, 2015. If she
filed a response, the Court would hear argument on the Motion on July 15, 2015. Ms. Mendez
failed to file a response. Because Ms. Mendez failed to file a response, and for the reasons set
forth below, the Court grants Tigermarket’s Motion and dismisses Ms. Mendez’s claim.
HISTORY OF THE CLAIM
Ms. Mendez filed a Petition for Benefit Determination on November 12, 2014, seeking
benefits for an injury that she suffered August 12, 2014, when she slipped and fell at work. On
January 20, 2014, Ms. Mendez requested an Expedited Hearing for medical and temporary
disability benefits.
Following an in-person hearing, the Court issued an Expedited Hearing Order on March
4, 2015, denying Ms. Mendez’s request for temporary disability and medical benefits. In the
Order, the Court deemed Ms. Mendez’s claim noncompensable based on the Court’s finding that
a special hazard did not contribute to her fall.
On March 18, 2015, Tigermarket filed a Motion to Dismiss pursuant to Mediation and
Hearing Procedure Rule 0800-02-21-.14(3) (hereinafter referred to as “Rule .14(3) motion”).
Tigermarket sent a copy to Marc Walwyn, the attorney representing Ms. Mendez at that time.
The Court set the Motion to Dismiss for a telephonic hearing on May 12, 2015. At the
hearing, the Court granted Attorney Walwyn’s Motion to Withdraw as counsel for Ms. Mendez.
Ms. Mendez asked for a continuance to secure new representation and file a response. The Court
continued the Motion to Dismiss hearing until June 15, 2015, and gave Ms. Mendez until June 8
to file a response. Ms. Mendez failed to file a response.
At the June 15 hearing, Ms. Mendez told the Court that she had secured counsel but that
her new counsel sent her a letter on June 11, 2015, informing her he would not accept her case.
Ms. Mendez explained that the she thought her counsel had filed a response and did not know
about the declination until after the response deadline passed. Ms. Mendez’s new counsel did
not file a notice of appearance. Considering the circumstances, the Court ordered the following:
1. Sunoco’s motion is reset for July 15, 2015, at 10:00 a.m. (CDT). At that time, the Court
will reconvene via teleconference to consider the Motion to Dismiss. The parties must
dial (615) 741-2113 to participate. Failure to participate may result in the Court deciding
the motion without input from the non-participating party.
2. Ms. Hobaugh-Mendez shall have until June 29, 2015, to file and serve a response to
Sunoco’s Motion to Dismiss. Sunoco may file and serve its reply, if any, no later than
5:00 p.m. on July 8, 2015.
3. Failure of Ms. Hobaugh-Mendez to file a response to Sunoco’s Motion to Dismiss by
June 29, 2015, will result in dismissal of the claim.
As of the date of this order, Ms. Mendez has not filed a response and no attorney has
entered an appearance on her behalf.
Issue
Whether the Court should dismiss Ms. Mendez’s claim for workers’ compensation
benefits.
Tigermarket’s Contention
Tigermarket argues that Ms. Mendez cannot carry her burden of proving that she suffered
a compensable workers’ compensation claim because the Court has already reviewed the
evidence and deemed her claim noncompensable.
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Findings of Fact and Conclusions
Rule 0800-02-21-.14(3) of the Mediation and Hearing Procedures of the Bureau of
Workers’ Compensation provides that, where a claim is denied on grounds of compensability
following an Expedited Hearing, the employer may file a motion to dismiss the claim. The rule
states that the injured employee shall file a response to the employer’s dismissal motion within
thirty (30) days after its filing and, thereafter, the Court shall set the motion for a hearing. Ms.
Mendez did not file a response within the extended response period provided her by the Court.
Tennessee Code Annotated section 50-6-239(c)(1) (2014) provides that the Tennessee
Rules of Civil Procedure govern all procedures before the Court of Workers’ Compensation
Claims, “unless an alternate procedural . . . rule has been adopted by the administrator.” Section
50-6-239(c)(1) (2014) further provides that “[w]henever the administrator has adopted an
alternate procedural . . . rule that conflicts with the Tennessee Rules of Civil Procedure . . . the
rule adopted by the administrator shall apply.”
Rule .14(3) provides a procedural mechanism for the potential dismissal of a workers’
compensation claim which, by definition, is tied to a procedure—an Expedited Hearing—that is
unique to the Court of Workers’ Compensation Claims. As such, a Rule .14(3) motion is distinct
from the dismissal 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 section 50-6-239(c)(1) (2014)
and that the determination of a Rule .14(3) motion is not governed by the standards and
procedures applied to motions to dismiss or motions for summary judgment under the Tennessee
Rules of Civil Procedure.
By definition, a Rule .14(3) motion may be filed only after the Court denies a claim on
the grounds of compensability following an Expedited Hearing. Implicit in finding of
noncompensability at the Expedited Hearing is a determination that the evidence did not
establish that the injured worker would likely prevail at a Final Compensation Hearing. Tenn.
Code Ann. § 50-6-239(d)(1) (2014).
That being the case, Rule .14(3) provides a procedural mechanism by which an employer
can force an injured worker to address the evidentiary inadequacies that resulted in the adverse
decision at the Expedited Hearing. If, in response to the employer’s Rule .14(3) motion, the
injured worker does not resolve the evidentiary inadequacies in his or her claim or articulate a
clear and present intent to do so, the consequence is dismissal of the injured worker’s claim.
Tennessee Code Annotated section 50-6-239(c)(6) (2014) provides that “[a]t a hearing
the employee shall bear the burden of proving each and every element of the claim . . . .”
Tigermarket’s Rule .14(3) motion brings before the Court the issue of whether Ms. Mendez can
carry her burden of proving that her injury arose primarily out of her employment.
The Workers’ Compensation Law defines “injury” as follows:
“Injury” or “personal injury” mean an injury by accident . . .
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arising primarily out of and in the course and scope of
employment, that causes . . . the need for medical treatment of the
employee; provided, that:
(A) An injury is “accidental” only if the injury is caused by a
specific incident, or set of incidents, arising primarily out
of and in the course and scope of employment . . . [.]
Tenn. Code Ann. § 50-6-102(13)(A) (2014). “An injury “arises primarily out of and in the
course and scope of employment” only if it has been shown by a preponderance of the evidence
that the employment contributed more than fifty percent (50%) in causing the injury, considering
all causes[.]” Tenn. Code Ann. § 50-6-102(13)(B) (2014). Tennessee Code Annotated section
50-6-239(c)(6) (2014) provides that “[u]nless the statute provides for a different standard of
proof, at a hearing, the employee shall bear the burden of proving each and every element of the
claim by a preponderance of the evidence.”
At the Expedited Hearing, Ms. Mendez testified that her left foot caught in a grout line
causing her ankle to “roll,” which resulted in her falling to the floor. The Court reviewed the
surveillance video of the incident and found that the video did not show a special hazard—in this
case an irregularity in the floor—as described by Ms. Mendez. The Court found that the video
showed no visible cracks in the floor. The video also showed people working in the area where
Ms. Mendez fell. The Court observed that their actions did not indicate the presence of a special
hazard. Instead, the video showed Ms. Mendez rolling her ankle for no apparent reason and
falling to the ground. At the hearing, Ms. Mendez testified that other workers had complained
about the condition of the floor. However, Ms. Mendez did not call any of these workers to
testify and did not provide affidavits.
“Tennessee courts have consistently held that an employee may not recover for an injury
occurring while walking unless there is an employment hazard, such as a puddle or step, in
addition to the injured employee’s ambulation.” Wilhelm v. Krogers, 235 S.W.3d 122, 128-29
(Tenn. 2007). Because Ms. Mendez slipped and fell while walking, without interference from a
special hazard, the Court deemed her claim noncompensable. Subsequent to the Court’s ruling,
Tigermarket filed the Rule .14(3) motion.
As stated above, Tigermarket’s motion forced Ms. Mendez to address the above-
described evidentiary inadequacy by presenting additional evidence to prove that a special
hazard caused her to fall. Ms. Mendez has failed to present or cite any additional proof, such as
affidavits or probable testimony from coworkers that might prove the existence of a special
hazard. In fact, Ms. Mendez failed to even respond to Tigermarket’s motion. For these reasons,
the Court finds that Ms. Mendez cannot prove that her accident arose out of her employment
with Tigermarket. Accordingly, the Court finds Tigermarket’s Motion well-taken and dismisses
Ms. Mendez’s claim. Rule .14(3) does not mandate whether a dismissal thereunder is with or
without prejudice. The Court dismisses Ms. Mendez’s claim without prejudice.
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IT IS, THEREFORE, ORDERED as follows:
1. Ms. Mendez’s claim for benefits under the Tennessee Workers’ Compensation Act is
dismissed without prejudice.
2. The hearing set for July 15, 2015, is cancelled.
3. The Court assesses the $150 filing fee in this claim to Tigermarket and/or its workers’
compensation carrier pursuant to Rule 0800-02-21-.07 of the Mediation and Hearing
Rules of the Tennessee Bureau of Workers’ Compensation, for which execution may
issue as necessary. Tigermarket or the carrier shall promptly remit the filing fee to
the Clerk of the Court of Workers’ Compensation Claims.
4. Unless an appeal of is filed with the Workers’ Compensation Appeals Board or
the Tennessee Supreme Court, this order shall become final in thirty (30) days.
ISSUED AND FILED WITH THE COURT OF WORKERS’ COMPENSATION CLAIMS ON
THE 8th DAY OF JULY, 2015.
____________________________________
Joshua Davis Baker, Judge
Court of Workers’ Compensation Claims
Right to Appeal:
Tennessee Law allows any party who disagrees with this Order of Dismissal 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.”
2. File the completed form with the Court Clerk within thirty (30) days of the date the
Compensation Order was entered by the Workers’ Compensation Judge. See Tenn.
Comp. R. & Regs. 0800-02-22-.01(1)(b).
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 (10) 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
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Indigency may be filed contemporaneously with the Notice of Appeal or must be filed
within ten (10) 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. 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. 0800-
02-22-.02(3).
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was sent to the following
recipients by the following methods of service on this the 8th day of July, 2015.
Name Certified First Via Fax Via Email Address
Mail Class Fax Number Email
David Deming X ddeming@manierherod.com
Alice Hobaugh-Mendez X alicehobaugh@gmail.com
_____________________________________
Penny Patterson-Shrum, Clerk
Tennessee Court of Workers’ Compensation Claims
WCCourt.Clerk@tn.gov
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