The opinion
FILED
Feb 21, 2019
01:17 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT GRAY
TOMMY DIAMOND, II, ) Docket Number: 2018-02-0072
Employee, )
v. )
CLAYTON HOMES, INC., ) State File Number: 12596-2018
Employer, )
and )
XL INSURANCE AMERICA, INC., ) Judge Brian K. Addington
Insurance Carrier. )
COMPENSATION HEARING ORDER GRANTING SUMMA.RY JUDGMENT
This claim came before the undersigned Workers' Compensation Judge on
February 13, 2019, on Clayton Homes' Amended Motion for Summary Judgment. Based
on the pleadings and affidavits, the Court holds there is no genuine issue of material fact
that Mr. Diamond did not timely file his claim and grants the motion.
Procedural History
Mr. Diamond alleged a right wrist injury primarily arising out of and in the course
and scope of his employment with Clayton Homes on September 26, 2016. He filed a
Petition for Benefit Determination (PBD) on February 1, 2018. This Court issued an
expedited hearing order denying medical and temporary benefits after concluding
Clayton Homes had not paid benefits and Mr. Diamond had not filed a PBD within one
year of the date of injury. Afterward, Clayton Homes filed an original and then Amended
Motion for Summary Judgment; 1 Mr. Diamond did not file a response to the motion.
1
Clayton Homes filed the Amended Motion in order to comply with the Court's rules concerning
summary judgment motions.
Findings of Fact and Conclusions of Law
Summary judgment is appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter oflaw." Tenn. R. Civ. P. 56.04 (2018).
Clayton Homes must do one of two things to prevail on its motion for summary
judgment: (1) submit affirmative evidence that negates an essential element of Mr.
Diamond's claim, or (2) 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 Clayton
Homes meets this burden, Mr. Diamond "may not rest upon the mere allegations or
denials of its pleading." Id. at 265. Rather, he must respond by producing evidence that
sets forth specific facts showing there is a genuine issue for trial. ld.; Tenn. R. Civ. P.
56.06.
Timely filing a PBD is an essential element of a workers' compensation claim, and
the question is whether Mr. Diamond did so. Clayton Homes has the initial burden of
producing facts to show that the statute of limitations bars his claim. Once it establishes
those facts, Mr. Diamond must prove that an exception exists or the claim is barred. See
Cloydv. Hartco Flooring Co., 274 S.W.3d 638,647 (Tenn. 2008).
In a workers' compensation claim where the employer has not paid benefits, "the
right to compensation under this chapter shall forever be barred" unless notice of the
injury is provided to the employer and "a petition for benefit determination is filed with
the bureau ... within one (1) year following the accident resulting in an injury." Tenn.
Ann. § 50-6-203(b)(1) (Emphasis added).
It is undisputed that Clayton Homes did not pay benefits at any point for his
injury, and that Mr. Diamond did not file a PBD until February 1, 20 18, well past one
year after the date of injury. Therefore, because Mr. Diamond filed his claim after the
expiration of the statute of limitations, the Court concludes no genuine issue of material
fact exists and summary judgment is appropriate as a matter of law.
IT IS, THEREFORE, ORDERED as follows:
1. Clayton Homes' Motion for Summary Judgment is granted, and Mr. Diamond's
claim for the workers' compensation benefits is dismissed with prejudice to its
refiling.
2. Clayton Homes shall pay costs of $150.00 to the Court Clerk within five business
days under Tennessee Compilation Rules and Regulations 0800-02-21-.07.
3. Clayton Homes shall prepare and file with the Court Clerk a Statistical Data Form
(SD2) within ten business days of entry of this order.
4. Absent an appeal, this order shall become final thirty days after issuance.
ENTERED February 21, 2019
IS/ Brian K. Addington
BRIAN K. ADDINGTON
Workers' Compensation Judge
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was sent to the following
recipients by the following methods of service on, February 21, 2019.
Name Certified Via Via Sent To:
Mail Fax Email
Tommy Diamond, 48 Diamond Drive
Employee X X Delbarton, WV 25670
diamondboxinggym@gmail.com
Leslie Bishop,
Employer's Attorney X lbishop@lewisthomason.com
& ))uUk--'
PENN~RUM, COURT CLERK
Court of Workers' Compensation Claims
II
I 'I
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.
' I
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
I
'
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