The opinion
FILED
Mar 19, 2024
01:58 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Frank M. Allen ) Docket No. 2023-06-2249
)
v. ) State File No. 17763-2023
)
United Cabinet Corporation, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Kenneth M. Switzer, Chief Judge )
Affirmed and Certified as Final
In this appeal, the employee asserts the trial court erred in granting the employer’s
motion for summary judgment and dismissing his petition with prejudice. The employer
asserts that the employee’s claim is barred by the statute of limitations because he failed
to timely file a petition for workers’ compensation benefits within one year of the alleged
accident. The employer also contends it did not issue payments to or on behalf of the
employee related to his claim for benefits within one year of the alleged accident. The
court granted summary judgment based on the expiration of the statute of limitations, and
the employee has appealed. Having thoroughly considered the record on appeal, we
affirm and certify as final the trial court’s order.
Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner, and Judge Meredith B. Weaver joined.
Frank M. Allen, Mt. Juliet, Tennessee, employee-appellant, pro se
Houston M. Gunn and Gregory H. Fuller, Brentwood, Tennessee, for the employer-
appellee, United Cabinet Corporation, LLC
Factual and Procedural Background
Frank M. Allen (“Employee”) asserted that on February 22, 2022, he was lifting
heavy paint drums while working for United Cabinet Corporation, LLC (“Employer”),
when he developed an inguinal hernia. Employee claims that he reported the incident to
his supervisor the same day and was allowed to stop heavy lifting, but Employer took no
other action in response to his report. He continued to work, and a year passed without
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treatment. Employee claimed he did not report the injury to human resources because he
believed providing notice to his direct supervisor was the proper protocol. 1
Sometime thereafter, during a company meeting, Employee learned he could see
an onsite company nurse. In February 2023, Employee was seen by the company nurse,
Deana Cook, who advised him to report the incident to human resources. After
Employee reported the incident to human resources, Employer offered a panel of
providers from which Employee selected an occupational medicine clinic. That provider
diagnosed Employee with an inguinal hernia and recommended surgery, but Employer
had by that time denied his claim. According to the record, on March 28, 2023,
Employer issued a payment for certain medical treatment Employee had received. On
March 29, 2023, Employee filed a petition for benefit determination for his alleged
February 22, 2022 work injury.
Following an unsuccessful mediation, a dispute certification notice was issued that
identified compensability, medical benefits, and temporary disability benefits as disputed
issues. In addition, Employer asserted, among other defenses, that it did not receive
timely notice of an injury by Employee. In June, the court issued a scheduling order
setting deadlines for taking Employee’s deposition, conducting an expedited hearing, and
filing motions for summary judgment.
On September 6, 2023, the court held an expedited hearing. At the close of
Employee’s proof, Employer moved for a “directed verdict,” referring to an involuntary
dismissal under Rule 41.02 of the Tennessee Rules of Civil Procedure. The trial court
granted Employer’s motion on September 11, and relied on Carillo v. Hurtado, No.
2021-06-1167, 2023 TN Wrk. Comp. App. Bd. LEXIS 40, at *9-10 (Tenn. Workers’
Comp. App. Bd. Aug. 16, 2023), for the proposition that “in the context of an expedited
hearing in which an employee seeks an interlocutory order compelling the provision of
certain benefits, a defendant in the case can, at the close of the employee’s proof, seek a
ruling from the court as to whether the employee’s evidence fails to support an
interlocutory order for benefits.” The court also noted that, in Carillo, we concluded that
the court may grant the motion and deny the request for benefits, which is, in effect, a
dismissal of the employee’s claim for interlocutory relief akin to a dismissal pursuant to
Rule 41.02(2). Id. at *10. It is not, however, a dismissal of the employee’s claim as a
whole. Id.
Relying on this authority, the court noted Employer’s argument that, pursuant to
Tennessee Code Annotated section 50-6-203(b)(1), Employee failed to file a petition for
benefits within one year of the accident resulting in his alleged injury. Although the trial
court found Employee to be credible and determined he reported the injury to his
1
According to Employee, the supervisor to whom he reported the work incident was terminated that same
day.
2
supervisor immediately, it nevertheless granted Employer’s motion because the evidence
showed it had paid no benefits during the year following Employee’s alleged injury and
he filed his petition more than one year after his alleged injury. In its order, the court
noted that this was a “threshold issue, [so] the remaining issues need not be decided at
this time.”
Thereafter, Employer filed a motion for summary judgment, but this motion was
denied on procedural grounds. Employer refiled its motion on October 5, arguing there
were no genuine issues of material fact as to whether the statute of limitations barred
Employee’s claim. Specifically, Employer alleged that the incident occurred on February
22, 2022; Employer did not pay any benefits to or on behalf of Employee for his claim
during the one year period after the incident; Employee received no medical treatment
until February 23, 2023; Employer issued a payment for medical care on March 28, 2023;
and, on March 29, 2023, Employee filed his petition for benefit determination for an
alleged hernia he sustained on February 22, 2022.
In a response filed by Employee, he argued that he saw Nurse Cook on February
21, 2023, within one year of the date of injury, and that Employer paid for that visit.
Employee also filed a letter from Nurse Cook dated June 6, 2023, which indicated that
she saw Employee on February 21, 2023, and that she referred him to human resources
when he informed her that his injury occurred at work. Employer filed a reply, asserting
that Nurse Cook’s letter was not admissible at a hearing for summary judgment because it
was not the type of document identified by Rule 56 as being appropriate for consideration
by the court. The trial court agreed with Employer and declined to consider the proof
Employee offered because it was not in an admissible form. Following the hearing, the
court granted Employer’s motion for summary judgment and dismissed Employee’s
claim with prejudice. Employee has appealed.
Standard of Review
The grant or denial of a motion for summary judgment is a matter of law that we
review de novo with no presumption that the trial court’s conclusions are correct. See
Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). As
such, we must “make a fresh determination of whether the requirements of Rule 56 of the
Tennessee Rules of Civil Procedure have been satisfied.” Id.
Analysis
The Tennessee Supreme Court has explained the requirements for a movant to
prevail on a motion for summary judgment:
[W]hen the moving party does not bear the burden of proof at trial, the
moving party may satisfy its burden of production either (1) by
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affirmatively negating an essential element of the nonmoving party’s claim
or (2) by demonstrating that the nonmoving party’s evidence at the
summary judgment stage is insufficient to establish the nonmoving party’s
claim or defense. We reiterate that a moving party seeking summary
judgment by attacking the nonmoving party’s evidence must do more than
make a conclusory assertion that summary judgment is appropriate on this
basis. Rather, Tennessee Rule 56.03 requires the moving party to support
its motion with “a separate concise statement of material facts as to which
the moving party contends there is no genuine issue for trial.” Tenn. R.
Civ. P. 56.03. “Each fact is to be set forth in a separate, numbered
paragraph and supported by a specific citation to the record.”
Id. at 264-65.
Employee asserted in his notice of appeal that summary judgment “should never
have been granted because there are [disputed] material facts. The nurse was seen on the
21st of February 2023. She first gave me a letter [and] then I had to get her to sign it.”
Employer argues that the trial court’s order should be affirmed because Employee failed
to file a brief, stating that, as a result, he “failed to develop an argument in support of his
claim and has therefore waived the issues.” Further, Employer contends that it satisfied
the requirements of Rule 56 of the Tennessee Rules of Civil procedure, entitling it to
summary judgment by negating an essential element of Employee’s claim.
We 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).
Yet, as explained by the Tennessee Court of Appeals:
The courts should take into account that many pro se litigants have no legal
training and little familiarity with the judicial system. However, the 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) (internal citations
omitted). Although Employee did not file a brief, he did submit a document with the title
“Statement of Evidence,” which reiterated his position that he saw a nurse prior to the
expiration of the statute of limitations. Nonetheless, as noted above, we must “make a
fresh determination of whether the requirements of Rule 56 of the Tennessee Rules of
Civil Procedure have been satisfied.” Rye, 477 S.W.3d at 250.
4
As we have observed on previous occasions, Rule 56 of the Tennessee Rules of
Civil Procedure identifies the documents and materials that may be considered by the
trial court in ruling on a motion for summary judgment. “[T]he judgment sought shall be
rendered forthwith 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. Rule 56.06 provides that affidavits used to support or
oppose a motion for summary judgment “shall be made on personal knowledge, shall set
forth such facts as would be admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein.” Tenn. R. Civ. P. 56.06. In
addition, Rule 56.06 provides that “[e]xpert opinion affidavits shall be governed by
Tennessee Rule of Evidence 703.” Id.
Here, the date of the incident and the date Employee filed his petition for benefit
determination are not in dispute. Further, Employer submitted an affidavit from its
claims adjuster stating that no temporary disability or medical benefits were paid to or on
behalf of Employee before March 28, 2023, and no authorized treatment was provided on
or before February 22, 2023. Employee offered no evidence refuting this affidavit.
Although Employee attempted to offer into evidence a letter from Nurse Cook, this
document was not admissible at a hearing on a motion for summary judgment pursuant to
Rule 56.04. 2 Moreover, even if the letter from Nurse Cook had been admitted into
evidence and considered by the court, the letter does not create any genuine issue of
material fact as to when the work accident occurred, when payments were issued for
medical treatment, and when Employee filed his petition for benefits.
In short, Employer presented affirmative evidence that it did not pay any benefits
to or on behalf of Employee within one year after the date of the alleged accident, which
negated an essential element of Employee’s claim. Employer acknowledged making a
payment for medical treatment on March 28, 2023, although it did not agree that it was
made within the context of a workers’ compensation claim. As the trial court noted,
however, voluntary payments of compensation that occur after the statute of limitations
has run “are of no effect.” Dye v. Witco Corp., 216 S.W.3d 317, 321-322 (Tenn. 2007).
Thus, we discern no error with the trial court’s finding that Employee’s claim is barred by
the statute of limitations, and we affirm its order granting summary judgment and
dismissing Employee’s claim.
Finally, Employer asserts Employee’s appeal is frivolous and has requested
attorneys’ fees. Employer contends Employee “only submitted a letter from Ms. Cook
which was not in the form of a pleading, deposition, answer to interrogatories, admission
2
Employee contends he saw Nurse Cook on February 21, 2023, within one year of the incident.
However, it is undisputed that Employer did not issue payment for medical visits on behalf of Employee
until March 28, 2023, after the statute of limitations had expired.
5
on file, or affidavit.” It argues that because he submitted no admissible evidence or other
proof of a material disputed fact, he had no reasonable chance of succeeding and that his
appeal should be deemed frivolous. 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 (internal citations omitted). Here, Employee sought medical treatment within one year
of the date of the accident and argued that his claim was not barred by the statute of
limitations. Thus, in considering the totality of the circumstances, we decline to find
Employee’s appeal frivolous and deny Employer’s request for attorneys’ fees.
Conclusion
For the foregoing reasons, we affirm and certify as final the trial court’s order
granting Employer’s motion for summary judgement and dismissing Employee’s claim
with prejudice. Costs on appeal have been waived.
6
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Frank M. Allen ) Docket No. 2023-06-2249
)
v. ) State File No. 17763-2023
)
United Cabinet Corporation, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Kenneth M. Switzer, Chief 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 19th day
of March, 2024.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Frank Allen X mitchfallen@gmail.com
Houston M. Gunn X hmgunn@mijs.com
Gregory H. Fuller ghfuller@mijs.com
inhoward@mijs.com
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