The opinion
FILED
May 27, 2021
09:32 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
JOSHUA BRYANT, ) Docket No. 2020-08-0309
Employee, )
v. )
MALCO THEATERS INC., ) State File No. 97676-2017
Employer, )
And )
LIBERTY MUTUAL FIRE INS. CO., ) Judge Allen Phillips
Carrier. )
COMPENSATION ORDER GRANTING SUMMARY JUDGMENT
This case came before the Court on May 17, 2021, on Malco’s Second Motion for
Summary Judgment. Malco contended Mr. Bryant filed his Petition for Benefit
Determination outside the one-year statute of limitations. For the following reasons, the
Court grants the motion.
Facts
On December 14, 2017, Mr. Bryant sustained an injury, and Malco provided
medical and temporary total disability benefits. Mr. Bryant filed a Petition for Benefit
Determination and then a Request for Expedited Hearing seeking additional benefits.
The Court held an Expedited Hearing, where Malco offered an affidavit of its
workers’ compensation claim representative, Joseph Medvescek. In that affidavit, Mr.
Medvescek stated in paragraph 9 that he issued the last payment of disability benefits on
April 10, 2018, and stated in paragraph 10 that he last paid a medical bill on March 22,
2019. Mr. Bryant offered no contrary evidence.
After the hearing, the Court found that Mr. Bryant filed his petition on March 26,
2020, more than one year after the last payment of benefits on March 22, 2019. Thus, the
Court held that Mr. Bryant likely would not prevail at a hearing on the merits because his
claim is barred under the applicable statute of limitations. Specifically, under Tennessee
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Code Annotated section 50-6-203(b)(2)(2020), an employee must file his petition within
one year of when the employer last voluntarily paid benefits.
Afterward, Malco filed its first Motion for Summary Judgment on the grounds of
statute of limitations. In support, Malco filed a Statement of Undisputed Material Facts in
which it asserted, as relevant, the following: “Employer/Carrier issued the final temporary
disability payment on April 10, 2018 and paid the last medical bill on March 22, 2019. (See
Exhibit D: Affidavit of Joseph Medvescek ¶¶ 9-10).” However, the affidavit of Mr.
Medvescek filed with the motion did not contain paragraphs 9 and 10.
Because of the missing paragraphs, the pleadings and affidavits on file did not show
when Malco last paid benefits. Thus, on April 8, 2021, the Court denied Malco’s first
Motion for Summary Judgment.
Malco filed this Motion for Summary Judgment on April 14. It included the same
Statement of Undisputed Facts and affidavits, but the affidavit of Mr. Medvescek now
contained the previously missing paragraphs as to when Malco last paid benefits. Mr.
Bryant did not file a response to the motion.
On May 17, the Court heard argument. Malco reiterated that the last payment of
benefits was made on March 22, 2019, and that the Petition for Benefit Determination was
filed more than one year later on March 26, 2020. Mr. Bryant argued that a physician had
related his current complaints to his injury and that the Court should consider that fact as
relevant to the statute of limitations.
Analysis
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 of law.” Tenn. R. Civ. P. 56.04 (2020). To prevail, Malco must do one of two
things: (1) submit affirmative evidence that negates an essential element of Mr. Bryant’s
claim, or (2) demonstrate that Mr. Bryant’s evidence is insufficient to establish entitlement
to further benefits. Tenn. Code Ann. § 20-16-101; see also Rye v. Women’s Care Ctr. of
Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015).
Further, the Appeals Board has stated the filing requirements of Tennessee Rules of
Civil Procedure 56 “are not mere suggestions,” but plain and unambiguous requirements.
Thomas v. Zipp Express, 2017 TN Wrk. Comp. App. Bd. LEXIS 22, at *11 n.4 (Mar. 15,
2017). Specifically, as the moving party, Malco must file a statement of undisputed
material facts with citations to the record. Mr. Bryant must respond to Malco’s statement
of undisputed facts, stating either his agreement with them or by showing how they are
disputed. Tenn. R. Civ. P. 56.03. (Emphasis added)
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Here, the essential element of Mr. Bryant’s claim is whether he timely filed the
petition. Because Malco voluntarily paid benefits, Mr. Bryant was required to file a petition
within one year of when Malco ceased paying benefits. Tenn. Code Ann. § 50-6-203(b)(2).
Malco asserted in the statement of undisputed facts that it last paid benefits on March 22,
2019, and, unlike in the first motion, that statement is now supported by the affidavit of
Mr. Medvescek. Mr. Bryant filed nothing in response. The Court considered his argument
at the hearing, but in the absence of a written response to the statement of undisputed facts,
the Court must accept Malco’s statements as true.
Therefore, the Court finds no genuine issue of material fact as to when Malco last
paid benefits. Because that date was more than one year before Mr. Bryant filed the Petition
for Benefit Determination, Malco is entitled to summary judgment as a matter of law.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. The Court grants Malco’s motion for summary judgment and dismisses Mr.
Bryant’s claim with prejudice to its refiling.
2. Unless appealed, this order shall become final in thirty days.
3. The Court assesses the $150.00 filing fee against Malco, for which execution might
issue as necessary. Malco shall pay the filing fee to the Court Clerk within five
business days of the order becoming final.
4. Malco shall file Form SD-2, Statistical Data form, with the Court Clerk within five
business days of this order becoming final.
ENTERED May 27, 2021.
______________________________________
JUDGE ALLEN PHILLIPS
Court of Workers’ Compensation Claims
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on May 27, 2021.
Name Via Email Service Sent To:
Joshua Bryant, Employee X 9146 Forest Island Dr., N.,
Collierville, TN 38017
joshuamusic7@yahoo.com
Effie B. Cozart, X effie.cozart@libertymutual.com
Employer’s Attorney kathleen.langston@libertymutual.com
______________________________________
Penny Shrum, Court Clerk
Wc.courtcler@tn.gov
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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: “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 of the filing fee. You must file the fullycompleted
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 Indigency 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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation www.tn.gov/workforce/injuries-at-
work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________ Employer
Notice is given that ____________________________________________________________________ [List
name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the Workers’
Compensation Appeals Board (check one or more applicable boxes and include the date filestamped on
the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________ issued
by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082 Employee Name: _______________________________________ Docket No.:
_____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
____________________________________________
__ [Signature of appellant or attorney for appellant]