The opinion
F~ED
March 31,2016
TN COURT OF
WORKIRS ' COl\IPI SATION
CLAIMS
IDII :15 Al\1
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT CHATTANOOGA
Doris Elaine Johnson, ) Docket No.: 2015-01-0182
Employee, )
v. ) State File No.: 52073-2015
)
Western Express, ) Judge Thomas Wyatt
Employer. )
ORDER OF DISMISSAL WITH PREJUDICE
THIS CAUSE came before the undersigned Workers' Compensation Judge,
telephonically, on March 29, 2016, upon the Motion to Dismiss that the employer,
Western Express, filed February 25, 2016, pursuant to Rule 0800-02-21-.14(3) (Rule
14(3)) of the Tennessee Compilation Rules and Regulations (2015). Andrew Saulters,
attorney for Western Express, called in for the hearing at the scheduled time. Doris
Elaine Johnson, the employee, failed to call in at the scheduled time.
After waiting five minutes, the Court phoned Ms. Johnson at the number listed on
the Petition for Benefit Determination. The call went to voice mail. The Court left a
voice mail message in which it asked Ms. Johnson to call in for the hearing on Western
Express' Motion to Dismiss. The Court identified the call-in numbers for the hearing as
part of its voice mail message to Ms. Johnson. The Court waited on the call-in line until
ten minutes after the scheduled time for the hearing. When Ms. Johnson did not call in,
the Court conducted the hearing on Western Express' Motion to Dismiss without her
participation.
Western Express asked for dismissal of Ms. Johnson's case with prejudice
because: (1) during the December 22, 2015 Expedited Hearing, she did not introduce an
expert medical opinion that her alleged work-related injury arose primarily out of and in
the course and scope of employment; (2) she did not submit an expert medical opinion
that her alleged injury arose primarily out of and in the course and scope of employment
in response to its Motion to Dismiss; (3) she failed to call in to participate in the Initial
(Scheduling) Hearing on February 25, 2016; and, (4) she failed to participate in the
scheduled hearing on its Motion to Dismiss. Western urged the Court to dismiss Ms.
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Johnson's claim with prejudice because her failure to participate in scheduled hearings
indicates she does not intend not to prosecute her claim.
Findings of Fact and Conclusions of Law
The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor employer.
Tenn. Code Ann. § 50-6-116 (2015). The employee in a workers' compensation claim
has the burden of proof on all essential elements of a claim. Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015).
The Bureau's Rule 14(3) provides an employer a mechanism to require an
employee to address evidentiary deficiencies in the proof of the compensability of her
claim where the Court denied the employee's claim on grounds of compensability
following an Expedited Hearing. Upon the employer's filing of a Rule 14(3) motion to
dismiss, the employee must respond within thirty calendar days. Contingent upon the
employee's response, the Court may "issue an appropriate order" following the
conduction of a hearing.
The Workers' Compensation law requires that an injured worker establish her
injury arose primarily out of and in the course and scope of employment. See Tenn. Code
Ann. § 50-6-102(14) (2015). In this claim, Ms. Johnson requested an Expedited Hearing,
which the Court conducted, telephonically, on December 22, 2015. Following the
Expedited Hearing, the Court denied Ms. Johnson's claim for interlocutory relief because
of her "failure to come forward with medical expert opinion establishing that she
sustained injury arising [primarily] out of and in the course and scope of employment[.]"
The Court notes Ms. Johnson did not respond to Western Express's Motion to
Dismiss by either the submission of medical evidence of work-relatedness or by calling
in to participate in the hearing on the Motion to Dismiss. In view of Ms. Johnson's
failure to respond and, further, because the record before the Court contains no expert
medical opinion that her alleged injury arose primarily out of and in the course and scope
of employment, the Court finds it is appropriate to enter an order dismissing Ms.
Johnson's claim pursuant to Rule 14(3).
Western Express urged that the Court dismiss Ms. Johnson's claim with prejudice.
The Court finds it is appropriate to dismiss this claim with prejudice because Ms.
Johnson failed to participate in the last two scheduled hearings, and she did not respond
to Western Express's Motion to Dismiss.
The Court taxes the $150 filing fee in this claim to Western Express and/or its
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workers' compensation carrier pursuant to Rule 0800-02-21-.07 of the Tennessee
Compilation Rules and Regulations (20 15). Western Express or its carrier shall promptly
remit the filing fee to the Clerk of the Court of Workers' Compensation Claims.
IT IS SO ORDERED.
ENTERED this the 31st day of March, 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 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.
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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
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.
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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 31st day of
March, 2016.
Name Certified Via Service sent to:
Mail Email
Doris Johnson, Self- Dot1918@live.com
Represented X X
Andrew Saulters, dsaulters@ortalekelley .com
Attorney X
;Jerk of Court
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