The opinion
FILED
Nov 09, 2023
07:00 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Frank Allen, ) Docket No. 2023-06-2249
Employee, )
v. )
United Cabinet Corp., LLC, ) State File No. 17763-2023
Employer, )
And )
AmTrust North America, ) Judge Kenneth M. Switzer
Carrier. )
COMPENSATION ORDER GRANTING SUMMARY JUDGMENT
United Cabinet Corporation filed a motion for summary judgment, arguing that
there are no genuine issues of material fact regarding whether the statute of limitations bars
Frank Allen’s claim. For the reasons below, the Court grants the motion and dismisses the
claim with prejudice.
Claim History
United Cabinet filed a statement of undisputed material facts, summarized as
follows:
1. Mr. Allen alleged he suffered an accident while working for United Cabinet on
February 22, 2022.
2. Mr. Allen never received direct monetary payments from United Cabinet for his
claim for the February 22, 2022 accident.
3. United Cabinet has not issued voluntary payments to or on behalf of Mr. Allen
for his workers’ compensation claim.
4. Mr. Allen received no medical treatment from United Cabinet until February 23,
2023.
5. United Cabinet made voluntary payments on behalf of Mr. Allen for medical
expenses on March 28, 2023.
6. On March 29, 2023, Mr. Allen filed a petition for benefit determination for a
hernia he sustained on February 22, 2022.
United Cabinet supports these facts with the petition for benefit determination,
excerpts from Mr. Allen’s deposition, and the declaration of claims adjuster Shakira
Holland. Her declaration included an attached spreadsheet showing payments by the
carrier for Mr. Allen’s medical treatment.
Mr. Allen responded and disputes facts three and four above. He contends that he
saw on-site nurse Deana Cook with Archer Health on February 21, 2023, and United
Cabinet paid for her services. He attached a letter signed by Ms. Cook confirming the
February 21, 2023 visit. He further argues the existence of other disputed facts, such as
that he immediately reported the injury to a supervisor, who took no action. Mr. Allen did
not cite to the record to support the additional facts.
Law and 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 (2023).
As the moving party, United Cabinet must do one of two things to prevail on its
motion: (1) submit affirmative evidence that negates an essential element of Mr. Allen’s
claim, or (2) demonstrate that Mr. Allen’s evidence is insufficient to establish an essential
element of his claim. Tenn. Code Ann. § 20-16-101 (2023); see also Rye v. Women’s Care
Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015).
If United Cabinet does either or both, Mr. Allen must respond by producing specific
facts showing a genuine issue for trial. Id.; Tenn. R. Civ. P. 56.06. Rule 56.03 states,
“Each disputed fact must be supported by specific citation to the record.” As to the record,
Rule 56.04 allows a court to consider only “pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any.”
United Cabinet argues the Court should grant summary judgment because it
demonstrated that Mr. Allen did not timely file a petition, so his claim is barred. Tennessee
Code Annotated section 50-6-203(b)(1) states that when the employer has not paid
workers’ compensation benefits to or on behalf of the employee, “the right to compensation
is forever barred unless . . . a petition for benefit determination is filed” within one year
after the work accident.
Here, the undisputed, properly supported facts show that United Cabinet’s carrier
did not make a payment of benefits until March 28, 2023, more than one year after Mr.
Allen’s date of injury. Mr. Allen did not file his petition until March 29, 2023.
Mr. Allen contends that he saw Ms. Cook on February 21, 2023, within one year of
the date of injury, and United Cabinet paid for that visit. United Cabinet counters that the
carrier did not pay for the onsite nurse, who offers generalized care for all employees.
United Cabinet’s position overlooks the definition of “employer” in section 50-6-102(11),
which states that “[i]f the employer is insured, it shall include the employer’s insurer[.]”
United Cabinet and its carrier are one and the same.
Importantly, however, the proof Mr. Allen offers, a letter from Ms. Cook, does not
fall within the category of documents that may be considered on summary judgment
(pleading, deposition, answer to interrogatories, admission, or affidavit). Had he supported
this assertion with one of those items, summary judgment would likely be inappropriate.
As to Mr. Allen’s other contentions, such as his supervisor taking no action when
he timely reported the claim, he offers no proof in an acceptable form.
The Court previously found Mr. Allen credible and sincere after an expedited
hearing. However, the Court cannot excuse Mr. Allen, who is self-represented, from
complying with the substantive and procedural rules that represented parties must observe.
Walton v. Averitt Express, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 37, at *5 (June 2,
2017).
Beyond the procedural deficiency, case law does not support Mr. Allen’s claim. The
Tennessee Supreme Court has long held that “[v]oluntary payments of compensation and
medical treatment occurring after the statute of limitations has already run are of no effect.”
Dye v. Witco Corp., 216 S.W.3d 317, 321-322 (Tenn. 2007).
Therefore, United Cabinet negated that Mr. Allen timely filed his petition. It also
demonstrated that his rebuttal evidence is insufficient. United Cabinet’s motion for
summary judgment is granted.
IT IS ORDERED as follows:
1. Mr. Allen’s claim for workers’ compensation benefits is dismissed with prejudice
to its refiling. The status hearing set for November 13 is canceled. Unless appealed,
this order becomes final in thirty days.
2. United Cabinet shall pay the $150 filing fee to the Clerk within five business days
after this order becomes final under Tennessee Compilation Rules and Regulations
0800-02-21-.06.
3. United Cabinet shall file Form SD-2 with the Clerk within ten business days of this
order becoming final.
ENTERED November 9, 2023.
________________________________________
JUDGE KENNETH M. SWITZER
Court of Workers’ Compensation Claims
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on November 9, 2023.
Name Certified Regular Email Sent to
Mail mail
Frank Allen, X X mitchfallen@gmail.com
employee 60 Williamsburg Rd.
Mt. Juliet, TN 37122
Houston Gunn, Greg X hmgunn@mijs.com
Fuller, employer’s ghfuller@mijs.com
attorneys
_______________________________________
Penny Shrum
Clerk, Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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 file-
stamped 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]
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