The opinion
FILED
Sep 15, 2021
12:25 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
John Washington ) Docket No. 2017-08-1205
)
v. ) State File No. 69226-2017
)
UPS Ground Freight, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Allen Phillips, Judge )
Affirmed and Certified as Final
This appeal arises from the trial court’s dismissal of the employee’s second petition for
benefit determination after concluding his claim was barred by the doctrine of res
judicata. The employee sustained a compensable injury to his head and filed a petition
for benefits on October 30, 2017. Following a lengthy procedural history, the trial court
issued a compensation order in December 2020 addressing medical, temporary, and
permanent disability benefits. Neither party appealed that order. Approximately three
months later, the employee filed an “amended” petition for benefits listing the same date
of injury and the same issues addressed in the prior case. After a review of the record,
the trial court concluded that the employee raised the same issues that were previously
identified in the October 2017 petition and that were adjudicated in the previous litigation
and addressed in the December 2020 compensation order. As a result, the court
dismissed the employee’s most recent petition with prejudice. The employee has
appealed. In response, the employer has asked that we deem the employee’s appeal
frivolous and that it be awarded appropriate damages. We affirm the trial court’s order,
deem the appeal frivolous, and exercise our discretion to decline to award fees.
Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge David F. Hensley joined.
John Washington, Sardis, Mississippi, employee-appellant, pro se
Kyle I. Cannon, Memphis, Tennessee, for the employer-appellee, UPS Ground Freight,
Inc.
1
Memorandum Opinion 1
On September 7, 2017, John Washington (“Employee”) sustained injuries after
being struck on the head by a metal bar while loading a trailer in the course of his
employment with UPS Ground Freight, Inc. (“Employer”). The claim was accepted as
compensable, and Employer authorized workers’ compensation benefits. Following a
dispute related to medical benefits, Employee filed a petition for benefit determination on
October 30, 2017, seeking certain medical and temporary disability benefits. After an
unsuccessful mediation, a Dispute Certification Notice (“DCN”) was issued identifying
medical and temporary disability benefits as disputed issues. Following an expedited
hearing, multiple motions, and two appeals, the DCN was amended to add
compensability of the claim and Employee’s entitlement to permanent disability benefits
as disputed issues. The parties subsequently agreed to request the trial court to issue a
compensation order based on its review of the record.
On December 1, 2020, the trial court issued a compensation order that addressed
all of the issues in the case. The court determined Employee was not entitled to past
medical expenses or temporary or permanent disability benefits but concluded Employer
was responsible for future medical treatment related to a “mild concussion” arising from
the September 7, 2017 work incident. The order was not appealed and became final
thirty days after it was filed.
Approximately three months later, Employee filed what he titled an “amended”
petition for benefit determination, identifying the same date of injury and the same
disputed issues listed in the 2017 petition. Following unsuccessful mediation of the
claim, a new DCN was issued listing compensability, medical benefits, temporary total
disability benefits, and permanent disability benefits as disputed issues. The DCN also
listed res judicata as an affirmative defense raised by Employer. On May 21, 2021, in a
decision on the record, the trial court dismissed Employee’s March 18, 2021 petition for
benefit determination with prejudice after concluding the filing was barred under the
doctrine of res judicata. Employee has appealed. In response, Employer has asked that
we deem Employee’s appeal frivolous and award appropriate damages.
Employee has raised multiple issues on appeal, the first of which is dispositive and
which we have restated as whether the trial court erred by “granting [E]mployer relief”
based upon the doctrine of res judicata. Because we conclude the trial court did not err in
dismissing the petition, all other issues raised by Employee are pretermitted.
1
“The appeals board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the appeals board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Tenn. Comp. R. & Regs. 0800-02-22-.03(1) (2020).
2
We first note that Employee is self-represented in this appeal, as he was in the trial
court. Parties who decide to represent themselves are entitled to fair and equal treatment
by the courts. Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000).
However, as explained by the Court of Appeals,
courts must also be mindful of the boundary between fairness to a pro se
litigant and unfairness to the pro se litigant’s adversary. Thus, the courts
must not excuse pro se litigants from complying with the same substantive
and procedural rules that represented parties are expected to
observe. . . . Pro se litigants should not be permitted to shift the burden of
the litigation to the courts or to their adversaries.
Hessmer v. Hessmer, 138 S.W.3d 901, 903-04 (Tenn. Ct. App. 2003) (citations omitted).
The doctrine of res judicata “bars a second suit between the same parties . . . on
the same cause of action with respect to all the issues which were or could have been
litigated in the former suit.” Young v. Barrow, 130 S.W.3d 59, 64 (Tenn. Ct. App. 2003).
Parties asserting a res judicata defense must demonstrate that: (1) a court of competent
jurisdiction rendered a prior judgment; (2) the prior judgment was final and on the merits;
(3) both claims involved the same parties; and (4) both claims involved the same cause of
action. Id.
Here, Employee filed a claim for workers’ compensation benefits against
Employer for injuries sustained in a work accident on September 7, 2017. On December
1, 2020, the Court of Workers’ Compensation Claims, which had exclusive jurisdiction
over Employee’s workers’ compensation claim, see Tennessee Code Annotated section
50-6-237 (2020), rendered a decision addressing all issues in dispute, including
permanent disability benefits and future medical treatment. Employee’s claim was
adjudicated on its merits, and the December 2020 compensation order conclusively
resolved all claims under Tennessee’s Workers’ Compensation Law arising from
Employee’s September 7, 2017 work injury. Neither party appealed, and the order
became final thirty days later. See Tenn. Code Ann. § 50-6-239(c)(7) (2020).
Employee’s second petition for benefit determination, filed more than 60 days after the
court’s compensation order became final, identified the same parties, the same date of
injury, and the same requests for relief as the October 2017 petition.
The trial court reviewed the assertions contained in both of Employee’s petitions,
reviewed filings submitted after the second petition, and considered the entire record
before concluding “the second petition filed on March 18, 2021, states the same cause of
action previously adjudicated in the Compensation Order of December 1, 2021, and is
barred by res judicata.” After a careful review of the record, we are unable to discern any
error by the trial court.
3
Employer has requested that it be awarded attorneys’ fees for what it asserts is a
frivolous appeal. Employer contends Employee’s brief is “completely devoid” of citation
to any evidence or any rule of law that supports a basis upon which relief could be
granted or benefits awarded pursuant to his second petition. In addition, Employer
asserts that while Employee’s brief includes cases addressing the doctrine of res judicata,
he “makes absolutely no effort and no argument as to how those cases apply to the
present case or how they entitle Employee to relief from the dismissal of his [petition]
pursuant to the doctrine of res judicata.” Employer argues that Employee’s “multitude of
filings” and the history of this claim indicate Employer “will continue to incur damages
unless and until [] Employee is sanctioned for his conduct.”
As we have noted previously, a frivolous appeal is one that is devoid of merit or
brought solely for delay. Yarbrough v. Protective Servs. Co., Inc., No. 2015-08-0574,
2016 TN Wrk. Comp. App. Bd. LEXIS 3, at *11 (Tenn. Workers’ Comp. App. Bd. Jan.
25, 2016). “[P]arties should not be required to endure the hassle and expense of baseless
litigation. Nor should appellate courts be required to waste time and resources on appeals
that have no realistic chance of success.” Id. at *10-11 (citations omitted). We conclude
Employee’s appeal is devoid of merit and is frivolous. However, in considering the
totality of the circumstances, we exercise our discretion not to award attorneys’ fees or
other expenses for Employee’s frivolous appeal. See Tenn. Comp. R. & Regs. 0800-02-
22-.09(4) (2020).
For the foregoing reasons, the trial court’s May 21, 2021 order dismissing
Employee’s claim on the basis of res judicata is affirmed and certified as final. Costs on
appeal have been waived.
4
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
John Washington ) Docket No. 2017-08-1205
)
v. ) State File No. 69226-2017
)
UPS Ground Freight, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Allen Phillips, 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 15th day
of September, 2021.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
John Washington X washingtonjohn73@gmail.com
Kyle I. Cannon X kcannon@gwtclaw.com
Allen Phillips, 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