The opinion
FILED
Mar 30, 2023
03:24 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
MARILYN ALLEN, ) Docket No.: 2022-05-0709A
) 2022-05-0709B
Employee, )
v. ) State File No.: 800995-2022
) 800996-2022
FRITO LAY, INC., )
Self-Insured Employer. ) Judge Thomas Wyatt
COMPENSATION ORDER GRANTING SUMMARY JUDGMENT
On March 27, 2023, this Court heard Frito Lay, Inc.’s motion for summary judgment
on Marilyn Allen’s claim for an alleged right-knee injury at work. 1 Specifically, Frito-Lay
contends that it paid no benefits on Ms. Allen’s alleged injury, and for that reason, she was
required to file suit within one year of the date of her injury. Because she filed suit more
than a year after the dates of injury alleged in this claim, Frito-Lay argues it is entitled to
summary judgment.
Ms. Allen claims that her nonsuit of a previous petition, alleging an incorrect date
of injury but filed within one year of the dates of injury alleged here, affords relief from
the statute of limitations. She argues that filing this claim with correct dates of injury
within the savings period of the nonsuit rule complies with the statute of limitations. Frito-
Lay counters that her refiled case amounts to a new claim with dates of injury outside the
one-year statute of limitations, and the Court should dismiss it.
For the reasons below, the Court grants Frito-Lay’s Motion for Summary Judgment.
1
Ms. Allen filed a single Petition for Benefit Determination (PBD) alleging two dates of injury. The Bureau separated
the dates of injury into two PBDs, each stating one of the given dates of injury. Both PBDs were stamped “filed” on
July 19, 2022.
1
History of the Claim
Ms. Allen filed her first petition on March 1, 2021, alleging a February 22, 2021
date of injury. In requesting an Expedited Hearing, she signed an affidavit stating that she
experienced pain in her right knee at work on May 11, 2020, and that her knee gave out at
work five days later.2 On April 19, 2022, Ms. Allen filed a notice of nonsuit, and the Court
granted a nonsuit, without prejudice, on May 5.
Ms. Allen filed a second petition on July 19, 2022, within the ninety-day savings
period provided by the nonsuit statute. In this petition she alleged dates of injury of April
18 and June 13, 2020. She also filed an affidavit explaining that she injured her knee on
April 18 while pushing a drum on a cart and on June 13 when her knee gave out while she
was climbing a ladder.
Frito-Lay moved for summary judgment asserting Ms. Allen did not file suit within
one year of the dates of injury alleged in the present petition.
Frito Lay supported its motion with affidavits filed by Ms. Allen regarding the dates
she injured her knee, an affidavit of the handling adjuster stating that Frito-Lay never made
payments to or on behalf of Ms. Allen for a right-knee injury, and a Statement of Material
Facts containing the pertinent filing and nonsuit dates. Ms. Allen did not file a response,
but at the summary judgment hearing, the Court permitted her counsel to address the merits
of Frito-Lay’s motion.3
At the hearing, Frito-Lay argued that dismissal is mandatory because more than one
year passed before Ms. Allen filed suit on her alleged April 18 and June 13, 2020 injuries.
It contended that Ms. Allen’s current claim did not relate back to the filing of the nonsuited
petition, which alleged a different date of injury.4 Frito-Lay maintained that Ms. Allen
must show that she filed her petition in this case within one year of the dates of injury
alleged in the petition. Since she cannot do so, summary judgment is mandated.
Ms. Allen argued the nonsuit remedy exists to allow a party to correct mistakes in a
petition by nonsuiting it and then timely refiling the claim with the correct facts. She
contended refiling her claim within the savings period permits her to proceed in this case.
2
Ms. Allen did not amend her PBD to allege these dates of injury.
3
Frito-Lay argued that Ms. Allen’s failure to file a response made its motion unopposed by rule; thus, her counsel
should not be allowed to make arguments at the hearing. The Court allowed Ms. Allen’s counsel to state her position,
because to be granted, an unopposed motion must be meritorious under the facts in the record and the applicable law.
Valladares v. Transco Products, Inc., et al, 2016 TN Wrk. Comp. App. Bd. LEXIS 31, at *15 (July 27, 2016).
4
Ms. Allen admitted by affidavit that she did not injure her knee on the date stated in the nonsuited PBD. Even if she
were to claim differently now, she did not refile on that date of injury within the savings period.
2
Law and Analysis
Tennessee Rule of Civil Procedure 56.04 (2022) provides that summary judgment
“shall be rendered forthwith if the pleadings . . . and any admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of law.”
Tennessee Code Annotated section 20-16-101 (2022) supplements the summary
judgment standard by stating that a party not having the burden of proof at trial shall prevail
on a motion for summary judgment if it “(1) [s]ubmits affirmative evidence that negates
an essential element of the nonmoving party’s claim; or (2) [d]emonstrates to the court that
the nonmoving party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim.”
The essential issue here is whether Ms. Allen filed her suit within the limitations
period given by law. Tennessee Code Annotated section 50-6-203(b)(1) requires an
employee to file a petition within one year of the date of injury in a case where, as here,
the employer has not paid benefits. Thus, Ms. Allen must show that she filed a petition
within one year of her date of injury.
The petitions Ms. Allen filed on July 19, 2022, were not filed within one year of
the alleged dates of injury—April 18 and June 13, 2020.5 But resolution of the issue
requires more analysis since her non-suited petition was filed within one year of the alleged
dates of injury in this case. To avoid summary judgment, Ms. Allen must show that her
current claim relates back to the date she filed the nonsuited petition.
Ms. Allen nonsuited her first claim under Tennessee Code Annotated section 50-6-
239(c)(3), which reads, “If a party who has filed a request for hearing files a notice of
nonsuit of the action, either party shall have ninety (90) days from the date of the order of
dismissal to institute an action for recovery of benefits under this chapter.” Neither this
statute nor Tennessee Compilation Rules and Regulations 0800-02-21-.24 (February 2022)
specifically say that the filing date of the refiled case relates back to the filing date of the
nonsuited case.
Ms. Allen did not cite supporting authority for her position. Nor did the Court locate
any such authority. However, Frito-Lay cited the case of Banks v. BASF Corp., No. 03S01-
9306-CV-00038 (Tenn. Workers’ Comp. Panel March 23, 1994), which is instructive on
this issue.
5
Because Ms. Allen did not respond to Frito-Lay’s Statement of Material Facts, the Court considers the facts set forth
in the statement to be true. Those facts include the dates pertinent to the issues here. Further, at the hearing, Ms.
Allen’s counsel stated it did not dispute the dates set forth in the statement.
3
In Banks, an injured worker timely filed a workers’ compensation claim but later
learned that he alleged the incorrect date of injury. The trial court granted the employee’s
motion to amend the date of injury in the pending case, which was filed within one year of
the correct date of injury. The Workers’ Compensation Panel reversed, holding:
An attempt to allege an accident occurred in the course and scope
of employment which is said to have occurred on a date different from the
date or dates originally alleged is an attempt to bring a new cause of
action. Such cause must be brought within the time limit of Tenn. Code
Ann. § 50-6-203.
(Emphasis added.)
Based on the above authority, the Court holds that Ms. Allen’s petitions alleging
new dates of injury constitute new causes of action. The fact that these petitions were filed
within the nonsuit savings period is irrelevant, as they allege dates of injury that were never
mentioned in the nonsuited case.
When viewed as new causes of action, these petitions contain dates of injury more
than a year before the petitions were filed. For that reason, the filings are outside the
applicable statute of limitations, and Frito-Lay has rebutted an essential element of Ms.
Allen’s case. Thus, Frito-Lay is entitled to summary judgment and Ms. Allen’s claim is
dismissed with prejudice to its refiling.
Frito-Lay or its carrier shall pay the $150 filing fee within five business days from
the date of the issuance of this order, and it shall file a completed SD2 documenting the
conclusion of the case. Unless appealed, this order shall become final thirty days after
entry.
IT IS ORDERED.
ENTERED March 30, 2023.
_____________________________________
Judge Thomas Wyatt
Court of Workers’ Compensation Claims\
4
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on March 30, 2023.
Name First Class Email Service sent to:
Pete Rosen X Prosen@vkbrlaw.com
Raymond Fraley, Jr. ray@fraleyhill.com
Employee’s Attorneys carlie@fraleyhill.com
John R. Lewis X john@johnlewisattorney.com
Employer’s Attorney
______________________________________
Penny Shrum, Court Clerk
WC.CourtClerk@tn.gov
5
For notices of appeal filed on or after July 1, 2022.
Compensation Order Right to Appeal:
If you disagree with this Compensation Order, you may appeal to the Workers’
Compensation Appeals Board. To do so, you must:
1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk
of the Court of Workers’ Compensation Claims within thirty calendar days of the
date the Compensation 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 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 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
Indigency will result in dismissal of your appeal.
3. You are responsible for ensuring a complete record is presented on appeal. The
Court Clerk will prepare the technical record and exhibits for submission to the
Appeals Board, and you will receive notice once it has been submitted. If no court
reporter was present at the hearing, 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 you must file it with the Court Clerk within fifteen calendar days of
filing the Notice of Appeal. Alternatively, you may file a statement of the evidence
prepared jointly by both parties within fifteen calendar days of filing the Notice of
Appeal. The statement of the evidence must convey a complete and accurate
account of the testimony presented at 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 must 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. You
have fifteen calendar days after the date of that notice to file a brief to the Appeals
Board. See the Rules governing the Workers’ Compensation Appeals Board on the
Bureau’s website
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
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. Tenn. Code
Ann. § 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.