The opinion
FILED
Feb 24, 2021
10:30 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Misti G. Day ) Docket No. 2020-03-0939
)
v. ) State File No. 26014-2018
)
Great Salons of Knoxville, Inc., et al. )
)
)
Appeal from the Court of Workers’ ) Heard January 28, 2021
Compensation Claims ) via WebEx
Lisa A. Lowe, Judge )
Affirmed and Remanded
This interlocutory appeal concerns the time within which an employee must file a petition
for benefits following an earlier involuntary dismissal of the claim. The employee
sustained two work-related injuries, the first occurring on April 2, 2018, and the second
occurring on March 20, 2019. The employee filed a petition for benefits on February 26,
2019, and, following the second injury, the employer’s workers’ compensation insurer
chose to treat the two injuries as one claim. On December 18, 2019, the trial court
dismissed the employee’s petition without prejudice. The employer continued voluntarily
paying workers’ compensation benefits until March 2020. On April 30, 2020, the
employee filed a second petition seeking additional medical treatment for her injuries and
subsequently requested an expedited hearing. In response to the employer’s argument that
the second petition was untimely, the court determined the employee’s April 30, 2020
petition was timely and that the employee was likely to prevail at trial regarding her request
for additional medical benefits. The employer has appealed. We affirm the trial court’s
determinations and remand the case.
Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Pele I. Godkin joined.
Joseph Ballard, Atlanta, Georgia, for the employer-appellant, Great Salons of Knoxville,
Inc.
Michael C. Inman, Knoxville, Tennessee, for the employee-appellee, Misti G. Day
1
Factual and Procedural Background
Misti G. Day (“Employee”) worked as a stylist for Great Salons of Knoxville, Inc.
(“Employer”). On April 2, 2018, she injured her back when she slipped and fell in the
course and scope of her employment. Employer accepted Employee’s claim as
compensable and voluntarily initiated workers’ compensation benefits. Employee began
treating with Dr. John Lavelle and was diagnosed as having multilevel facet arthropathy
and L4-5 level spinal stenosis. Dr. Lavelle eventually placed Employee at maximum
medical improvement, assessed a two percent impairment, and referred Employee for a
pain management evaluation. In November 2018, Employee came under the care of Dr.
Martha Smith for evaluation and treatment of her chronic pain complaints.
Dr. Smith recommended Employee undergo a lumbar medial branch block and
radiofrequency ablation, but Employer’s workers’ compensation carrier denied
authorization for the procedures. As a result, Employee filed a petition for benefits on
February 26, 2019.
On March 20, 2019, Employee sustained another work-related fall when she tripped
over a broom. Employer’s workers’ compensation insurer treated the two incidents as one
claim, and Employee continued treating with Dr. Smith, who later referred Employee to a
neurosurgeon. After an unsuccessful mediation to resolve the parties’ dispute concerning
Employee’s request for additional medical care, a dispute certification notice was issued
on August 29, 2019.
Employee did not file a request for a hearing within sixty days of the issuance of the
dispute certification notice, as required by regulation, and the trial court set a hearing on
November 18, 2019 for Employee to show cause why her case should not be dismissed due
to her failure to timely request a hearing. Following the show cause hearing, the court
entered an order granting Employee until December 9, 2019 to file a request for hearing,
noting that Employee had not requested a hearing “because [Employer] provided a panel
and is attempting to schedule an appointment with Dr. [David] Hauge,” a neurosurgeon.
The order granting additional time stated that Employee’s failure to request a hearing by
December 9 “shall result in a dismissal without prejudice for failure to prosecute her
claim.”
Employee first saw Dr. Hauge on December 2, 2019. His report from the visit
addresses Employee’s history, including the April 2018 and March 2019 falls and the
symptoms and complaints Employee had been experiencing. Dr. Hauge concluded
Employee had “mild left L5 motor and sensory radiculitis,” and he recommended a lumbar
MRI to “further assess” Employee’s lumbar condition. In addition, Dr. Hauge noted
cervical and left upper extremity complaints and indicated he would “request authorization
to treat the cervical spine and obtain a cervical MRI.”
2
On December 18, 2019, the trial court entered an “Order of Dismissal Without
Prejudice,” noting that the case was before the court on November 18 and that, although
the court had extended the time for Employee to request a hearing until December 9, she
“failed to do so.” As a result, the court dismissed the case “without prejudice upon
[Employee’s] failure to prosecute her claim.”
On January 9, 2020, the MRIs recommended by Dr. Hauge were completed, and on
March 9, 2020, Employee returned to Dr. Hauge. According to Dr. Hauge’s report,
Employee presented “for continuing evaluation [and] treatment of chronic low back pain
and left L4 sensory radiculitis.” The report stated that “[c]onservative measures including
physical therapy, medial branch blocks, and lumbar bracing have given her no
improvement of her symptoms,” and that “[i]t is reasonable to offer this patient the option
of surgical intervention.” The surgical recommendation was sent to utilization review,
where it was certified as reasonable and necessary medical treatment. Employer declined
to authorize the surgery and ceased the voluntary payment of benefits in March 2020.
On April 30, 2020, Employee filed a new petition for benefits identifying April 2,
2018 as the injury date. Mediation was unsuccessful in resolving the parties’ disputes, and
on July 29, 2020, a dispute certification notice was issued identifying the disputed issues
as compensability and medical benefits. Employee subsequently requested an expedited
hearing, filing an affidavit in support of the request in which she asserted she was advised
by Dr. Hauge that she needed surgery, that the surgery was approved by utilization review,
and that Employer’s workers’ compensation insurer “was denying [surgery] as [her]
original Petition for Benefit Determination was dismissed without prejudice on December
18, 2019.”
The trial court conducted an expedited hearing on October 20, 2020. The issues
were identified as whether Employee’s claim for additional medical treatment was barred
because she failed to refile her claim within 90 days of the previous dismissal, and, if not,
whether Employee was likely to prevail at trial regarding her request for additional medical
benefits. The court concluded Employee’s claim was not barred, and that she was likely
to prevail at trial on the merits of her claim regarding additional medical treatment.
Employer has appealed.
Standard of Review
The standard we apply in reviewing a trial court’s decision presumes that the court’s
factual findings are correct unless the preponderance of the evidence is otherwise. See
Tenn. Code Ann. § 50-6-239(c)(7) (2020). When the trial judge has had the opportunity
to observe a witness’s demeanor and to hear in-court testimony, we give considerable
deference to factual findings made by the trial court. Madden v. Holland Grp. of Tenn.,
Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need be
afforded the trial court’s findings based upon documentary evidence.” Goodman v.
3
Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.
Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of
statutes and regulations are questions of law that are reviewed de novo with no presumption
of correctness afforded the trial court’s conclusions. See Mansell v. Bridgestone Firestone
N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are also mindful of our
obligation to construe the workers’ compensation statutes “fairly, impartially, and in
accordance with basic principles of statutory construction” and in a way that does not favor
either the employee or the employer. Tenn. Code Ann. § 50-6-116 (2020).
Analysis
Employer raises a single issue on appeal, which we have restated as whether
Employee’s April 30, 2020 petition was timely filed. Employer presents two alternative
arguments. First, acknowledging that Employee’s initial petition “was undoubtedly
dismissed pursuant to Rule 41.02 of the Tennessee Rules of Civil Procedure,” Employer
contends that the December 18, 2019 dismissal order did not specifically indicate that the
dismissal was to be construed as “not on the merits” and was, therefore, an adjudication on
the merits that resulted in a dismissal with prejudice. Alternatively, Employer contends
that if the court’s December 18, 2019 dismissal order does not operate as a dismissal on
the merits, “Employee’s right to refile her petition expired ninety days after the entry of
the December 2019 dismissal order.” We find no merit in either argument.
Rule 41.02 of the Tennessee Rules of Civil Procedure addresses involuntary
dismissals and the effect thereof. More specifically, Rule 41.02(3) provides as follows:
Unless the court in its order for dismissal otherwise specifies, a dismissal
under this subdivision and any other dismissal not provided for in this Rule
41, other than a dismissal for lack of jurisdiction or for improper venue or
for lack of an indispensable party, operates as an adjudication upon the
merits.
The trial court’s December 18, 2019 dismissal order was styled “Order of Dismissal
without Prejudice.” The order expressly provided that Employee’s claim was “dismissed
without prejudice upon [Employee’s] failure to prosecute her claim for workers’
compensation benefits.” Employer acknowledges that the order “indicates that the
dismissal was to be construed as ‘without prejudice’” but insists the order “does not
specifically indicate that the dismissal was to be construed as ‘not on the merits’ as
contemplated and required by Rule 41.02(3).” A plain reading of Rule 41.02(3) discloses
that a dismissal under the rule operates as an adjudication upon the merits “[u]nless the
court in its order for dismissal otherwise specifies.” The rule does not require specific
words be used to signify that an order is not an adjudication upon the merits. Employer
has not cited any legal authority to support its insistence that the phrase “without prejudice”
4
is insufficient to “otherwise specif[y]” that the order was not intended to be an adjudication
on the merits, and we are aware of no such authority.
Turning to Employer’s alternative argument, it asserts Employee’s right to refile her
petition “expired ninety days after the entry of the Order of Dismissal.” Again, Employer
cites no authority to support its position but, instead, asserts a policy argument. Employer
contends that if Employee had voluntarily dismissed her 2019 petition, “there would be no
question that she would be precluded from seeking the same workers’ compensation
benefits, unless she refiled a new Petition for Benefits within 90 days after the entry of the
Order of Dismissal.”
Tennessee Code Annotated section 50-6-239(c)(3) provides that “[i]f a party who
has filed a request for hearing files a notice of nonsuit of the action, either party shall have
ninety (90) days . . . to institute an action for recovery of benefits . . . .” The regulations
adopted by the Bureau include a similar provision:
A party may move to voluntarily dismiss a petition for benefit determination
no more than once after it is filed unless the employee was awarded
temporary benefits through an interlocutory order or a motion for summary
judgment is pending. If a party moves for voluntary dismissal and the order
is entered, either party may file a new claim within ninety (90) days.
Tenn. Comp. R. & Regs. 0800-02-21-.24(1) (2019) (emphasis added). However, neither
section 50-6-239(c)(3) nor the above regulation is applicable as Employee did not
voluntarily dismiss her petition.
According to Employer, Employee’s claim was involuntarily dismissed as a result
of her failure to comply with prior orders of the court, and the effect of the trial court’s
order awarding benefits is to put Employee in a “more advantageous position” than an
employee who “proactively files a voluntary dismissal.” Further, Employer asserts that
“[a]llowing Employee an indefinite period of time to file a new action following an
involuntary dismissal without prejudice incentivizes future employees to wait for the Court
to enter an involuntary dismissal as opposed to being proactive and filing a voluntary
dismissal.” Again, we find no merit in Employer’s argument.
An employee whose claim is involuntarily dismissed without prejudice does not
have “an indefinite period of time to file a new action” as stated by Employer. Rather, an
employee’s claim would have to be filed within the applicable statute of limitations. Here,
as noted by the trial court, Employer continued providing medical benefits until March
5
2020. Accordingly, we conclude Employee’s April 30, 2020 petition was filed within the
applicable limitation period. See Tenn. Code Ann. § 50-6-203(b)(2) (2020). 1
Conclusion
We conclude Employee’s April 30, 2020 petition for benefits was timely filed, and
we affirm the trial court’s October 23, 2020 order granting medical benefits and remand
the case. Costs on appeal are taxed to Employer.
1
Employer has not raised any issue concerning the trial court’s determination that Employee is entitled to
additional medical treatment for her work injuries. Thus, we have not addressed that determination.
6
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Misti G. Day ) Docket No. 2020-03-0939
)
v. ) State File No. 26014-2018
)
Great Salons of Knoxville, Inc., et al. )
)
)
Appeal from the Court of Workers’ ) Heard January 28, 2021
Compensation Claims ) via WebEx
Lisa A. Lowe, Judge )
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 24th day
of February, 2021.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Michael Inman X michael@inmanandstadler.com
Jean Smathers jean@inmanandstadler.com
Joseph Ballard X joseph.ballard@thehartford.com
Lisa A. Lowe, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov