The opinion
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT CHATTANOOGA
Yolanda Howard, ) Docket No.: 2015-01-0005
Employee, )
v. ) State File No.: 84357-2014
Unum, )
Employer, ) Date of Injury: September 24, 2014
And )
Travelers Indemnity Co., )
TPA/Insurance Carrier. ) Judge: Thomas Wyatt
)
ORDER OF DISMISSAL
THIS CAUSE came on before the undersigned Workers' Compensation Judge on
August 21, 2015, upon the Motion to Dismiss filed July 13, 2015, by Unum and its
carrier, Travelers Indemnity Co., pursuant to Tennessee Compilation Rules &
Regulations 0800-02-.14(3) (2014). Considering the positions of the parties, the
applicable law, and the record pertinent to this motion, the Court concludes Unum is
entitled to a dismissal of Ms. Howard's claim without prejudice to its refiling.
ANALYSIS
Issue
Whether Unum is entitled to a dismissal ofMs. Howard's claim.
Technical Record
The Court designates the following as the technical record pertinent to Unum's
Motion to Dismiss:
• Petition for Benefit Determination (PBD), with attachments, filed January
14, 2015;
• Dispute Certification Notice (DCN), filed February 9, 2015;
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• Request for Expedited Hearing (REH), filed February 9, 2015;
• Exhibits introduced at the Expedited Hearing on March 6, 2015;
• Expedited Hearing Order, filed March 12, 2015;
• Expedited Hearing Notice of Appeal, filed March 18, 2015;
• Appeals Board Decision, filed April 8, 20 15; and
• Unum's Motion to Dismiss and attachments, filed July 10, 2015.
The Court did not consider attachments to the above filings unless admitted into
evidence at the Expedited Hearing. The Court considered factual statements in the above
filings or any attachments to them as allegations unless established by the evidence
admitted at the Expedited Hearing.
History of Claim
Ms. Howard filed a PBD on February 9, 2015, seeking medical and temporary
disability benefits for carpal tunnel syndrome allegedly caused by repetitive work she
performed in the course and scope of her employment by Unum. Ms. Howard requested
an Expedited Hearing, which the Court conducted March 6, 20 15. See Expedited
Hearing Order. On March 12, 2015, the Court issued an Expedited Hearing Order
denying the requested benefits because the only expert medical opinion on causation
introduced at the Expedited Hearing was a causation questionnaire on which Dr. Marshall
Jemison marked the "No_ Not Primarily related" option.
Ms. Howard filed a Notice of Appeal to the Workers' Compensation Appeals
Board on March 18, 2015. The Appeals Board affirmed the denial of benefits by order
issued April 8, 2015. Unum filed its Motion to Dismiss on July 10, 2015. Ms. Howard
did not file a written response to Unum's motion.
Ms. Howard's Contentions
Ms. Howard admitted she did not have an expert medical opinion that contradicted
Dr. Jemison's opinion that her carpal tunnel syndrome did not primarily arise out of and
in the course and scope of her employment at Unum. Ms. Howard stated she made
extensive, but unsuccessful, efforts to obtain legal representation in her claim.
Unum's Contentions
Unum asserts the Court's Expedited Hearing Order informed Ms. Howard five
months ago her claim would fail if she did not obtain expert medical opinion rebutting
Dr. Jemison's opinion her carpal tunnel syndrome is not work-related. Nonetheless, she
has not done so, thus indicating she either cannot obtain an opinion supporting her
position or is unwilling to timely prosecute her claim. Unum contends this is the exact
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type of claim that Tennessee Compilation Rules & Regulations 0800-02-21-.14(3) (Rule
.14(3)) is designed to dismiss.
Discussion
Rule .14(3) provides:
If, as a result of the expedited hearing, the claim is denied on the grounds of
compensability, . . . [and] the denial on the grounds of compensability is
affirmed by the appeals board . . . , the employer may file a motion to
dismiss with the assigned workers' compensation judge. . . . [T]he
employee shall have thirty (30) calendar days to file a written response.
Thereafter, the motion shall be set for a hearing and the judge shall issue an
appropriate order.
Tenn. Comp. R. & Regs. 0800-02-21-.14(3).
The 20 13 reforms to the Workers' Compensation Law imposed new evidentiary
standards for proving the work-relatedness of an injury. Tennessee Code Annotated
section 50-6-102(13)(A) (2014) provides, "[a]n injury is 'accidental' only ifthe injury is
caused by a specific incident ... arising primarily out of and in the course and scope of
employment." Section 50-6-1 02( 13 )(B) provides, "[a]n 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." Section 50-6-102(13)(C) requires
that the causation of an alleged work injury be "shown to a reasonable degree of medical
certainty. " (Emphasis added.)
The Expedited Hearing Order provided Ms. Howard specific notice her claim
failed because the only medical opinion admitted into evidence was Dr. Jemison's
opinion her carpal tunnel syndrome was not primarily related to her work at Unum. See
Expedited Hearing Order at *4, holding, "[i]n view of Dr. Jemison's response, and there
being no other causation opinion admitted into evidence, the Court finds that Ms.
Howard did not establish by expert medical opinion that her bilateral carpal tunnel
syndrome arose primarily out of and in the course and scope of employment." (Emphasis
added.) Additionally, Unum's Motion to Dismiss clearly indicated it sought to dismiss
this claim on the ground Ms. Howard had not obtained expert medical opinion rebutting
Dr. Jemison's unfavorable opinion. On the basis of the above, the Court finds that,
despite being self-represented, Ms. Howard was well-aware of the nature of Unum's
motion and that she needed to produce a favorable causation opinion to rebut Dr.
Jemison's opinion to avoid dismissal of her claim.
When an employer successfully defends an injured worker's claim at an Expedited
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Hearing, Rule .14(3) provides a procedural mechanism by which the employer can force
the injured worker to address the evidentiary inadequacies that resulted in the adverse
Expedited Hearing decision. If the injured worker does not address the subject
evidentiary inadequacies, the employer is entitled to dismissal of the claim.
Here, Ms. Howard did not introduce expert medical opinion rebutting Dr.
Jemison's unsupportive causation opinion, nor did she indicate she had the present ability
and intent to do so. Therefore, the Court fmds Unum is entitled to dismissal of Ms.
Howard's claim. Tenn. Comp. R. & Regs. 0800-02-21-.14(3).
Rule .14(3) does not mandate whether a dismissal thereunder is with or without
prejudice. In recognition of Ms. Howard's unsuccessful efforts to obtain representation
in her claim, the Court dismisses her claim without prejudice.
IT IS, THEREFORE, ORDERED as follows:
1. The Court dismisses Ms. Howard's claim for benefits under the Workers'
Compensation Law without prejudice to the refiling of the same.
2. The Court taxes the $150 filing fee to Unum and/or its carrier pursuant to
Tennessee Compilation Rules & Regulations 0800-02-21-.07 (2014). Unum or its
carrier shall promptly remit the filing fee to the Clerk of the Court of Workers'
Compensation Claims.
3. Unless an appeal of this order is filed with the Workers' Compensation
Appeals Board or the Tennessee Supreme Court, this order shall become final
in thirty days.
ENTERED this the 27th day of August, 2015.
Judge Thomas Wyatt
Court of Workers' Compensation Claims
Rjght to Appeal:
Tennessee Law allows any party who disagrees with this Compensation
(Dismissal) Order to appeal the decision to the Workers' Compensation Appeals Board.
To file a Notice of Appeal, you must:
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1. Complete the enclosed form entitled: "Compensation Hearing Notice of
Appeal."
2. File the completed form with the Court Clerk within thirty days of the date
the Compensation (Dismissal) Order was entered by the Workers'
Compensation Judge. See Tenn. Comp. R. & Regs. 0800-02-22-.01(l)(b)
(2014).
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 parties, having the responsibility of ensuring a complete record on
appeal, may request, from the Court Clerk, the audio recording of the
hearing (if available) 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 Request for Appeal. See Tenn. Comp. R.
& Regs. 0800-02-22-.01(4) (2014). Alternatively, the parties may file a
joint statement of the evidence within fifteen calendar days of the filing of
the Request for 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.
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 calendar days to submit briefs to the Appeals Board for
consideration. See Tenn. Comp. R. & Regs. 0800-02-22-.02(3) (2014).
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Dismissal Order was sent to the
following recipients by the following methods of service on this the 27th day of August,
2015.
Name Certified Via Via Service sent to:
Mail Fax Email
Yolanda Howard, Self- X YHoward127@yahoo.com
represented
Gerard Siciliano, Attorney X gms@lutheranderson.com
Penny Shrum, Clerk of Court
Court of Workers' Compensation Claims
WC.CourtCierk@tn.gov
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