The opinion
FILED
Ap1·il 4, 2016
TN COURT OF
WORKERS' COMPENSATION
CLAIMS
TIMI 9:18AM
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT CHATTANOOGA
Denita Howard, ) Docket No.: 2014-01-0002
Employee, )
v. ) State File No.: 52073-2015
)
U.S. Xpress, Inc., ) Judge Thomas Wyatt
Employer, )
)
And )
)
Liberty Mutual Ins. Co. )
Carrier. )
ORDER OF DISMISSAL WITH PREJUDICE FOR FAILURE TO PROSECUTE
CLAIM
THIS CAUSE came before the undersigned Workers' Compensation Judge,
telephonically, on April 1, 2016, upon the Motion to Dismiss for Failure to Prosecute
filed by the employer, U.S. Xpress, Inc. (USX), on February 29, 2016. Denita Howard,
who is self-represented, and Charles Gilbreath, an attorney representing USX,
participated in the hearing.
USX asked for dismissal of Ms. Howard's case with prejudice because: (1) she did
not participate in the Initial (Scheduling) Hearing scheduled by the Court on February 16,
2016; (2) she did not file the written statement that she intended to prosecute her claim by
committing to meet all scheduled deadlines as ordered by the Court in its Initial
(Scheduling) Order; and, (3) the only physician opinion in the record on the issue of the
permanency of Ms. Howard's injury is that of Dr. Galipudi, the authorized treating
physician, who opined that Ms. Howard did not retain permanent impairment as a result
of her work-related injury.
Ms. Howard stated she had no response to Mr. Gilbreath's arguments. The Court
asked Ms. Howard if she had sought medical expert opinion that her work injury is
permanent, to which she responded that she had unsuccessfully attempted to return to Dr.
Galipudi.
Findings of Fact and Conclusions of Law
Ms. Howard filed her claim on February 10, 2015. She requested an Expedited
Hearing on June 25, 2015, which the Court conducted by telephone on September 6,
2015. The Court issued an Expedited Hearing Order on October 16, 2015, which denied
Ms. Howard's claim for temporary disability benefits while affirming her right to
ongoing authorized medical care of her compensable injury.
The Court conducted a telephone conference on December 16, 2015, to determine
if it should schedule a Compensation Hearing in Ms. Howard's claim. Ms. Howard
stated she did not know if her treating physician had rated her injury for impairment. The
Court scheduled an Initial (Scheduling) Hearing on February 16, 2016, to provide Ms.
Howard an opportunity to inquire about an impairment rating.
The Court conducted the telephonic Initial (Scheduling) Hearing on February 16,
2016. Attorney Charles Gilbreath called in at the scheduled time for the hearing. Ms.
Howard did not call in. The Court attempted unsuccessfully to contact Ms. Howard by
telephone. After waiting several more minutes for Ms. Howard to call in for the hearing,
the Court conducted the Initial (Scheduling) Hearing by scheduling a Compensation
Hearing and attendant deadlines.
The Court issued an Initial Hearing (Scheduling) Order on February 17, 2016.
Because Ms. Howard failed to call in for the Initial (Scheduling) Hearing, the Court
ordered that she file a written statement confirming her intent to prosecute her claim by
committing to meet all deadlines scheduled in the Initial Hearing (Scheduling) Order.
The order ordered Ms. Howard to file her statement within ten days from the date of the
issuance of said order. Ms. Howard did not file a written statement of her intent to
prosecute her claim within the prescribed period and has not filed the required statement
to date.
In Smith v. The Newman Group, LLC, No. 2015-08-0075, 2015 TN Wrk. Comp.
App. Bd. LEXIS 30, at *8-9 (Tenn. Workers' Comp. App. Bd. September 21, 2015), a
majority of the Appeals Board held that trial judges in the Court of Workers'
Compensation Claims possess discretion to control the pace of litigation in their courts to
ensure equitable and efficient disposition of the claims litigated therein. In this claim,
Ms. Howard failed to call in for the scheduled Initial (Scheduling) Hearing. This hearing
is important in that it is a "hearing before a workers' compensation judge where the judge
will consider issues related to the efficient processing of the case." Tenn. Comp. R. &
Regs. 0800-02-21-.02(15) (2015). The Bureau's rules implicitly require the parties or
their attorneys to meet with the Court during the Initial (Scheduling) Hearing to "agree
upon a discovery plan and a scheduling order designed to ensure timely and efficient
resolution ofthe case." Tenn. Comp. R. & Regs. 0800-02-21-.13(1) (2015).
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In ordering Ms. Howard to file written confirmation of her intent to comply with
the deadlines set forth in the Initial (Scheduling) Order, the Court meant to gauge Ms.
Howard's commitment to take the necessary steps to move her claim forward. The Court
considered the above requirement a valid exercise of its discretion to efficiently manage
its docket. The Court finds that Ms. Howard's failure to comply with the Court's order is
an indication that she is unwilling or unable to take reasonable steps to move her claim
forward.
USX correctly points out that Dr. Galipudi, the authorized treating physician,
issued a January 7, 2015, report stating his opinion that Ms. Howard did not retain any
permanent impairment as a result of her work injury. USX served Ms. Howard with a
copy of the report in September, 2015, so she has known of Dr. Galipudi's opinion for at
least six months. The Court asked Ms. Howard during the hearing on the motion to
dismiss what efforts she had taken to obtain medical expert opinion that she was
permanently impaired as a result of her work injury. Ms. Howard responded that she had
attempted to return to Dr. Galipudi. The Court considers such action a less-than-
reasonable attempt to establish an essential element of her claim, given she has known for
several months that Dr. Galipudi opined she did not retain permanent impairment due to
her work injury.
Rule 41.01 of the Tennessee Rules of Civil Procedure (2015) provides that a
defendant may move for and, implicitly, a court may grant dismissal of a claim "[f]or
failure of the plaintiff to prosecute or to comply with ... any order of [the] court." Rule
41.03 (2015) provides that an order of dismissal other than a dismissal for lack of
jurisdiction, improper venue or lack of an indispensable party "operates as an
adjudication on the merits."
In view of Ms. Howard's failure to participate in the Initial (Scheduling) Hearing;
her failure to file the written statement of intent to prosecute her claim as required by the
Court's Initial Hearing (Scheduling) Order; and the paucity of her efforts to obtain a
favorable medical expert opinion that she retains permanent impairment due to her work
injury, the Court finds Ms. Howard has failed to prosecute her claim in a reasonable
manner. Accordingly, the Court dismisses her claim with prejudice to its refiling.
The Court taxes the $150 filing fee in this claim to USX and/ or its workers'
compensation carrier pursuant to Rule 0800-02-21-.07 of the Tennessee Compilation
Rules and Regulations (20 15). USX or its carrier shall promptly remit the filing fee to
the Clerk of the Court of Workers' Compensation Claims.
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IT IS SO ORDERED.
ENTERED this the 4th day of April, 2016.
Judge Thomas Wyatt
Court of Workers' Compensation Claims
Right to Appeal:
Tennessee Law allows any party who disagrees with this Expedited Hearing 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: "Expedited Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within seven business days of the
date the Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of 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 lndigency 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
lndigency in accordance with this section shall resuJt 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 for the
purpose of having a transcript prepared by a licensed court reporter and filing it
with the Court Clerk within ten calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
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the evidence within ten calendar days of the filing of the Expedited Hearing
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.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
five business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within five business days of the filing of the appellant's
position statement. All position statements pertaining to an appeal of an
interlocutory order should include: (1) a statement summarizing the facts of the
case from the evidence admitted during the expedited hearing; (2) a statement
summarizing the disposition of the case as a result of the expedited hearing; (3) a
statement of the issue(s) presented for review; and (4) an argument, citing
appropriate statutes, case law, or other authority.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Order of Dismissal was sent to
the following recipients by the following methods of service on this the 4th day of April,
2016.
Name Certified Via Service sent to:
Mail Email
Denita Howard, Self- Denita.Howard@gmail.com
Represented X X
Charles Gilbreath, cgilbreath@noogalaw.com
Attorney X
lerk of Court
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