The opinion
FILED
Jan 18, 2019
03:04 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
EDWARD FONSECA, )
Employee, ) Docket No. 2018-06-0299
v. )
)
RIMAX CONTRACTORS, INC., )
Employer, )
)
JAMES MCHUGH ) State File No. 20931-2017
CONSTRUCTION, )
Statutory Employer, )
And )
)
ARCH INSURANCE COMPANY, )
Carrier. ) Judge Joshua Davis Baker
COMPENSATION HEARING ORDER GRANTING
MOTION FOR SUMMARY JUDGMENT
This case came before the Court on January 14, 2019, on McHugh Construction’s
motion for summary judgment. Mr. Fonseca did not respond to the motion. The Court
grants the motion and dismisses this claim against McHugh with prejudice because it is
barred by the statute of limitations.
Procedural History and Material Facts
Mr. Fonseca injured his back on a commercial construction site in Nashville while
working for Rimax on May 16, 2016. Rimax worked as subcontractor on the site, and
James McHugh Construction (McHugh) worked as the general contractor. An
intermediate subcontractor for McHugh had hired Rimax. Although Mr. Fonseca knew
another company had hired Rimax, he did not know that McHugh was the general
contractor.
Mr. Fonseca filed a claim against Rimax and its insurer, Granite State Insurance
Company (Granite), in Georgia, because Rimax was headquartered there. However, the
Georgia claim stalled within months due to lack of jurisdiction.
Shortly after filing in Georgia, Mr. Fonseca filed a petition for benefit
determination (PBD) against Rimax and Granite in Tennessee as a self-represented
litigant. However, Granite secured a default declaratory judgment in the Shelby County
Circuit Court that absolved its liability.
Since the default judgment declared Granite was not insuring Rimax at the time of
his injury, this left Rimax uninsured. In an attempt to collect some benefits, Mr. Fonseca
retained counsel and filed a motion to add McHugh as a party to the claim. The Court
granted his motion, and he served and filed a PBD against McHugh on February 20,
2018.
After an expedited hearing, the Court held that, while Mr. Fonseca was likely to
prevail in proving entitlement to benefits in Tennessee, he was unlikely to prevail against
McHugh because the statute of limitations barred his claim. McHugh moved for
summary judgment and sent a copy of its motion to Mr. Fonseca. Mr. Fonseca did not
respond.
Law and Analysis
Tennessee Rule of Civil Procedure 56.04 states summary judgment is appropriate
if there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. To meet this standard, McHugh must either submit
affirmative evidence to negate an essential element of Mr. Fonseca’s claim or
demonstrate that his evidence is insufficient to establish an essential element of his 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 McHugh carries this burden, then Mr. Fonseca “may not rest upon the mere
allegations or denials of [his] pleading” but must respond by producing facts showing a
genuine issue for trial. Id.; Tenn. R. Civ. P. 56.06. The Court holds that McHugh met its
burden of demonstrating Mr. Fonseca cannot establish his claim against McHugh and its
insurer, as the statute of limitations bars his claim.
Mr. Fonseca failed to respond to the motion. While that failure does not mandate
entry of summary judgment, it does prevent him from disputing any of the facts in
McHugh’s statement of material facts. See United Serv’s Inds., Inc. v. Sloan, 1988 Tenn.
App. LEXIS 592, *4 (Tenn. Ct. App. Sept. 28, 1988) (“An adverse party’s failure to
respond to a motion for summary judgment does not relieve the moving party of the
burden of establishing an entitlement to judgment as a matter of law; rather, an absence
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of response only precludes factual disputes.”). Without a response, the Court accepts
McHugh’s facts: chiefly that Mr. Fonseca did not include McHugh as a party until filing
a PBD against it and its insurer on February 20, 2018.
Under the Workers’ Compensation Law, the statute of limitations bars a claim
“when the employer has not paid workers’ compensation to or on behalf of the employee
. . . unless the notice required by § 50-6-201 is given to the employer and a petition for
benefit determination is filed . . . within one (1) year after the accident resulting in
injury.” Tenn. Code Ann. § 50-6-203(b)(1).
Here, Mr. Fonseca cannot establish a claim against McHugh because the statute of
limitations expired when he did not file against McHugh until nearly two years after his
alleged date of injury. As the nonmoving party, Mr. Fonseca must “demonstrate the
existence of specific facts in the record which could lead a rational trier of fact to find in
favor of the nonmoving party.” Rye, at 265. “The focus is on the evidence the
nonmoving party comes forward with at the summary judgment stage, not on
hypothetical evidence that theoretically could be adduced . . . at a future trial.” Id.
Because Mr. Fonseca failed to produce proof his claim against McHugh was not barred
by the statute of limitations, he failed to carry this burden.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. The Court grants McHugh’s motion for summary judgment and dismisses Mr.
Fonseca’s claim with prejudice to its refiling.
2. Absent an appeal to the Appeals Board, this order shall become final in thirty
days.
3. The Court assesses the $150.00 filing fee against McHugh under Tennessee
Compilation Rules and Regulations 0800-02-21-.07, for which execution may
issue as necessary. McHugh shall pay the filing fee within five business days of
the order becoming final.
4. McHugh shall file form SD-2 with the clerk, via email at wc.courtclerk@tn.gov,
within ten business days of this order becoming final.
ENTERED JANUARY 18, 2019.
__________________________________
Judge Joshua Davis Baker
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Court of Workers’ Compensation Claims
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on January 18, 2019.
Name Certified Fax Email Service sent to:
David Goodman, X dgoodman@forthepeople.com
Employee’s Attorney
Sean Hunt, X sean@thehuntfirm.com
Attorney for James
McHugh Construction
Rimax Contractors, X 2940 Horizon Park Drive, Suite C
Inc. Suwanee, Georgia 30024
ricardo@rimaxcontractors.com
______________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
wc.courtclerk@tn.gov
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II
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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.
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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
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'
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