Opinion

Swanson, Darold v. Facility Installation Service

  • 2024 TN WC 29
Court
Tennessee Court of Workers' Compensation Claims
Filed
Apr 8, 2024
Status
Published
On the bench
Joshua Davis Baker
Cited by
0 cases
Authority
More cited than 15.7%

The opinion

FILED

Apr 08, 2024

08:21 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

DAROLD SWANSON, ) Docket No. 2023-06-5023

Employee, )

v. )

FACILITY INSTALLATION )

SERVICE, )

Employer, )

And ) State File No. 860304-2023

AUTO OWNERS INS. CO., )

Carrier, )

And )

TROY HALEY, Administrator, )

SUBSEQUENT INJURY AND ) Judge Joshua D. Baker

VOCATIONAL RECOVERY FUND. )

COMPENSATION ORDER DENYING MOTION TO CONTINUE AND

GRANTING MOTION TO DISMISS

The Court held a hearing on Mr. Swanson’s motion to continue and on Facility

Installation’s motion to dismiss on April 1, 2024. Mr. Swanson did not appear but filed a

motion to continue. Because his motion lacks support and was not pursued, the Court

denies Mr. Swanson’s motion to continue. Further, because his petition fails to state a claim

upon which relief can be granted, the motion to dismiss is granted.

Procedural History

In his petition, Mr. Swanson alleged that he contracted Covid-19 from a co-worker,

who had not told him about his infection “until [Mr. Swanson] started experiencing

symptoms.” On August 11, 2021, Mr. Swanson “went straight to the boss and told him of

the situation.” His supervisor “recommended [he] go to Path Group for free testing.”

After the test, he “gave [his] test results and doctors [sic] excuse [to his] supervisor

but “got progressively worse, end[ing] up in ICU several times.” He still “suffer[s] from

Afib and blood clots in [his] lungs and heart” that he alleges resulted from Covid-19.

1

Two years after his injury, Mr. Swanson filed a petition for benefit determination

on July 18, 2023. On the petition, he marked the following statements as true:

Mr. Swanson also left “Section F: Notice” blank, failing to identify if and how he had sent

a copy of his petition to his employer or its insurance carrier.

In addition to the dispute certification notice, the mediator reported that Mr.

Swanson failed to cooperate in scheduling mediation, failed to submit required medical

records or documentation, and failed to respond “to many efforts to reach him.”

After the dispute certification notice issued, Mr. Swanson failed to timely request a

hearing, so the Court entered an order for him to appear and show cause why his claim

should not be dismissed for lack of prosecution. In response, he filed a request for expedited

hearing. In turn, Facility Installation filed its motion to dismiss, asserting that Mr.

Swanson’s claim fails on its face, as the claim was untimely filed outside the limitations

period. Facility Installation included a notice in its motion setting the hearing on its motion

to dismiss for April 1, 2024.

At the show-cause hearing in late February, the Court ordered the parties to

complete written discovery about the statute of limitations issue before the April hearing

on the motion to dismiss and also set an expedited hearing for May.

On March 25, Mr. Swanson filed a “Response and Motion to Continue” requesting

“an additional 60 days to respond” for “more time to get medical evidence of incapacity,

TCA-50-6-203‘d.’ [sic].” The next day, a docketing notice issued setting a hearing on the

motion to continue for April 1, 2024, the same day as the hearing on Facility Installation’s

motion to dismiss.

Mr. Swanson failed to appear on April 1, missing the hearing on his motion to

continue and the hearing on the motion to dismiss.

Analysis

Rule 12.02(6) permits dismissal of a claim for “failure to state a claim upon which

relief can be granted.” Tenn. R. Civ. P. 12.02(6) (2023). The motion is resolved by

examining the pleadings alone, and a defendant who files a motion to dismiss “admits the

2

truth of all of the relevant and material allegations contained in the complaint, but . . .

asserts that the allegations fail to establish a cause of action.” Webb v. Nashville Area

Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011) (internal quotations and

citations omitted).

A statute of limitations defense may be raised in a 12.02(6) motion to dismiss for

failure to state a claim upon which relief can be granted. See Gunter v. Lab. Corp. of Am.,

121 S.W.3d 636, 638 (Tenn. 2003). However, the motion should be denied unless it appears

that the plaintiff can prove no set of facts in support of his claim that would entitle him to

relief. Id. at 639.

Generally, a 12.02(6) dismissal at this procedural stage is premature because “[b]y

its very nature, a Rule 12.02 motion to dismiss asserts that the claim fails on its face,

without the need for the court to consider other evidence.” Watson v. Lowe’s Home Ctrs.,

Inc., 2023 TN Wrk. Comp. App. Bd. LEXIS 4, at *8 (Feb. 3, 2023). Evidence is usually

“necessary to determine whether the statute of limitations serve[s] to bar the claim.” Id.

However, Facility Installation has shown that Mr. Swanson’s petition fails on its

face. Tennessee Code Annotated section 50-6-203(b)(1) reads where an “employer has not

paid workers’ compensation benefits to or on behalf of the employee, the right to

compensation under this chapter shall be forever barred, unless . . . a petition for benefit

determination is filed . . . within one (1) year after the accident resulting in injury.”

Here, Mr. Swanson did not file his petition until nearly two years after his alleged

injury. He acknowledged in his petition that his employer did not pay workers’

compensation benefits, as he marked that his employer had not furnished medical treatment

or paid him for missing work due to his injury.

After a defendant has established that a claim is barred by the statute of limitations,

the burden shifts to the plaintiff to show his claim should not be time-barred, usually by

application of tolling doctrines like the discovery rule. Redwing v. Cath. Bishop for the

Diocese of Memphis, 363 S.W.3d 436, 464, 467 (Tenn. 2012). The discovery rule tolls the

statute of limitations until by reasonable care and diligence it is discoverable and apparent

that a compensable injury has been sustained. Ernstes v. Printpack, Inc., 2023 TN Wrk.

Comp. App. Bd. LEXIS 25, at *9 (June 6, 2023).

Mr. Swanson acknowledged on his petition that he was injured at a specific time on

a certain date when his co-worker infected him. He told his boss on August 11, 2021, that

he thought his co-worker had made him ill, then immediately sought testing and treatment.

Because he immediately related his infection to work, the discovery rule does not apply

here.

3

He filed a motion to extend his response time to the motion to dismiss by 60 days

and to continue the hearing so he could gather evidence to prove he was incapacitated from

timely filing a petition. Section 50-6-203(d) permits tolling in cases of “physical or mental

incapacity” that could extend the limitations period “for one (1) year from the date when

the incapacity ceases.”

However, the Court set his motion to continue for April 1, and he did not attend the

hearing. Further, his motion lacks specificity or any explanation as to what type of

incapacity he alleges or how long it lasted. Also, Mr. Swanson never mentioned in his

petition that he had a physical or mental incapacity that would have prevented him from

filing his petition within one year of the date of injury. As Mr. Swanson did not diligently

pursue or adequately support his motion, the Court denies it.

In sum, because Mr. Swanson admitted in his petition that Facility Installation did

not pay workers’ compensation benefits and has alleged an August 11, 2021 injury but did

not file his petition until July 2023, the Court grants the motion to dismiss with prejudice

against its refiling. Facilities Installation shall pay the $150.00 filing fee to the Court Clerk

within five days of entry of this order. Unless appealed, this order becomes final 30 days

after entry.

It is ORDERED.

ENTERED April 8, 2024.

______________________________________

JOSHUA D. BAKER, JUDGE

Court of Workers’ Compensation Claims

4

CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent as shown on April 8, 2024.

Name Certified Fax Email Service sent to:

Mail

Darold Swanson, X 2419 Woodale Lane

Employee Nashville, TN 37207

dinkswanson@gmail.com

Michael Haynie, X mhaynie@manierherod.com

Employer’s Attorney

Patrick Ruth, X patrick.ruth@tn.gov

Attorney for the Fund

______________________________________

PENNY SHRUM, COURT CLERK

wc.courtclerk@tn.gov

5

Right to Appeal:

If you disagree with the Court’s 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 before the expiration of the deadline.

 If the order being appealed is “expedited” (also called “interlocutory”), or if the

order does not dispose of the case in its entirety, the notice of appeal must be filed

within seven (7) business days of the date the order was filed.

 If the order being appealed is a “Compensation Order,” or if it resolves all issues

in the case, the notice of appeal must be filed within thirty (30) calendar days of

the date the Compensation Order was filed.

When filing the Notice of Appeal, you must serve a copy on 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. 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. If you choose to submit a transcript as part of your

appeal, which the Appeals Board has emphasized is important for a meaningful review of

the case, a licensed court reporter must prepare the transcript, and you must file it with the

Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board,

and you will receive notice once it has been submitted. For deadlines related to the filing of

transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the

Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)

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.

If neither party timely files an appeal with the Appeals Board, the Court Order

becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory

orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).

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 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]

LB-1099 rev. 01/20 Page 2 of 2 RDA 11082

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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