FILED Sep 11, 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. )
EXPEDITED HEARING ORDER DENYING BENEFITS
Frank Allen allegedly suffered a hernia while working for United Cabinet Corporation, LLC. United Cabinet denied the claim based on the statute of limitations. After a September 6, 2023 expedited hearing, the Court grants United Cabinet’s motion for involuntary dismissal of Mr. Allen’s request for temporary benefits, but the claim remains pending.
Claim History
Mr. Allen testified that on February 22, 2022, he suffered an injury while lifting and stacking heavy drums at work. He “felt a tear” and immediately told his supervisor, “Paul.” Paul took no action but agreed that Mr. Allen could stop heavy-lifting. Mr. Allen continued working that day and for months afterward, occasionally mentioning the injury to Paul, who took no action.
A year without treatment passed, while Mr. Allen continued working without heavy lifting. Mr. Allen believed informing his supervisor about the injury was the proper protocol. During that time he never reported the injury to human resources, because the individual in that role changed five times that year, and “there wasn’t an H.R. there at that time.” Ultimately, according to Mr. Allen, Paul was fired.
1 After a company-wide meeting, Mr. Allen learned he could see an onsite nurse. He visited her in February 2023. The nurse told him he must report the injury to human resources. He did so, was offered a panel, and chose an occupational clinic. He saw a physician four times, who diagnosed an inguinal hernia and recommended surgery. Mr. Allen never underwent the repair though, because United Cabinet denied his claim. He filed a petition for benefit determination on March 29, 2023.1
Findings of Fact and Conclusions of Law
At the close of Mr. Allen’s proof, United Cabinet moved for a “directed verdict,” referring to an involuntary dismissal under Rule 42.01. The Court took the motion under advisement but now grants it as to United Cabinet’s defense that the statute of limitations bars Mr. Allen’s claim.
In Garcia Carillo v. Sanchez Hurtado, 2023 TN Wrk. Comp. App. Bd. LEXIS 40, at *9-10 (Aug. 16, 2023), the Appeals Board explained an involuntary dismissal should be granted when asked for by an employer after an employee has presented his evidence but failed to prove he is entitled to benefits. The Board wrote, “[I]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.” If the motion is granted, the trial court may deny the request for benefits. Id. at *10. This is a dismissal of the employee’s requested benefits, not a dismissal of the employee’s claim as a whole. The trial court must determine whether the employee offered sufficient evidence to show he is likely to prevail at a hearing on the merits. Id.
Applying this authority, United Cabinet contended that Mr. Allen did not file his petition within the statute of limitations. Tennessee Code Annotated section 50-6- 203(b)(1) (2022) reads, “[W]hen the employer has not paid workers’ compensation benefits to or on behalf of the employee, the right to compensation . . . shall be forever barred, unless the notice required by § 50-6-201 is given to the employer and a petition for benefit determination is filed with the bureau . . . within one (1) year after the accident resulting in injury.” (Emphasis added).
Mr. Allen sincerely and credibly testified about how his injury occurred, and the medical records document that he has an inguinal hernia and needs surgery. He described United Cabinet as a work environment with a strict chain of command and high employee
1 Mr. Allen asked to call a witness, but United Cabinet objected because he did not disclose her as required. Tennessee Compilation Rules and Regulations 0800-02-21-.15(1) (March, 2022) states, “The party requesting an expedited hearing must list any witnesses it intends to call at the expedited hearing on the request for expedited hearing form.” Since neither hearing request listed any witnesses, the objection was sustained. 2 turnover. When his supervisor did not help him with his claim, he simply worked through pain because he did not know he had any other option and needed his pay.
Mr. Allen testified that he became injured at work lifting and stacking heavy drums on February 22, 2022. The Court finds Mr. Allen reported the injury to his supervisor immediately. The Tennessee Supreme Court has long held, “Oral notice to the employee’s supervisor may constitute actual notice” for purposes of section 50-6-201. Gragg v. White Consol. Industries, Inc., 1992 Tenn. LEXIS 486, at *4 (Tenn. 1992). Paul, and later supervisors, have allowed Mr. Allen to work light duty since February 22, 2022. Paul did nothing else to assist Mr. Allen.
United Cabinet paid no benefits during the year after the injury. Mr. Allen filed the petition on March 29, 2023, after one year passed. The Court finds he did not timely file the petition.
Mr. Allen argued, “I’ve done everything they told me to do” to his detriment. The Court agrees.
Importantly, however, the Workers’ Compensation Law makes no exception for these circumstances. Mr. Allen had one year to file his claim. He did not do so within that time. The Court holds that he is unlikely to show at a final hearing that he timely filed his claim, so United Cabinet’s motion for involuntary dismissal of his request for interlocutory relief is granted. Since this is a threshold issue, the remaining issues need not be decided at this time.
The Court sets a status hearing on November 13 at 9:00 a.m. Central Time. You must dial (615) 532-9552 or (866) 943-0025 to participate.
Finally, United Cabinet’s employee, Paul, declined to accept Mr. Allen’s injury report. Rule 0800-02-01-.05(1) (May, 2018) states, “An employer must accept any notice of a claim for workers’ compensation benefits from any employee . . . alleging an injury.” The Court refers United Cabinet to the Compliance Program for consideration of the imposition of a civil penalty.
IT IS ORDERED.
ENTERED September 11, 2023.
________________________________________ JUDGE KENNETH M. SWITZER Court of Workers’ Compensation Claims
3 Appendix
Technical record: 1. Petition for Benefit Determination 2. Dispute Certification Notice, and parties’ additional information 3. Order Setting Status Hearing 4. Hearing Request 5. Scheduling Order 6. Hearing Request 7. Employer’s Brief 8. Employer’s Exhibit and Witness List 9. Notice-audio recording filed with clerk 10. Notice-Rule 72 Declaration of Shakira Holland filed
Evidence: 1. Declaration of Mr. Allen 2. Form C-32, Choice of Physicians Form 3. Wage Statement 4. Denial 5. Dr. Dutton’s medical records 6. Declaration of Shakira Holland 7. Letter from Deana Cook 8. Recording of Mr. Allen’s statement to Shakira Holland
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on September 11, 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 Compliance X WCCompliance.Program@tn.gov Program
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FILED Sep 11, 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. )
EXPEDITED HEARING ORDER DENYING BENEFITS
Frank Allen allegedly suffered a hernia while working for United Cabinet Corporation, LLC. United Cabinet denied the claim based on the statute of limitations. After a September 6, 2023 expedited hearing, the Court grants United Cabinet’s motion for involuntary dismissal of Mr. Allen’s request for temporary benefits, but the claim remains pending.
Claim History
Mr. Allen testified that on February 22, 2022, he suffered an injury while lifting and stacking heavy drums at work. He “felt a tear” and immediately told his supervisor, “Paul.” Paul took no action but agreed that Mr. Allen could stop heavy-lifting. Mr. Allen continued working that day and for months afterward, occasionally mentioning the injury to Paul, who took no action.
A year without treatment passed, while Mr. Allen continued working without heavy lifting. Mr. Allen believed informing his supervisor about the injury was the proper protocol. During that time he never reported the injury to human resources, because the individual in that role changed five times that year, and “there wasn’t an H.R. there at that time.” Ultimately, according to Mr. Allen, Paul was fired.
1 After a company-wide meeting, Mr. Allen learned he could see an onsite nurse. He visited her in February 2023. The nurse told him he must report the injury to human resources. He did so, was offered a panel, and chose an occupational clinic. He saw a physician four times, who diagnosed an inguinal hernia and recommended surgery. Mr. Allen never underwent the repair though, because United Cabinet denied his claim. He filed a petition for benefit determination on March 29, 2023.1
Findings of Fact and Conclusions of Law
At the close of Mr. Allen’s proof, United Cabinet moved for a “directed verdict,” referring to an involuntary dismissal under Rule 42.01. The Court took the motion under advisement but now grants it as to United Cabinet’s defense that the statute of limitations bars Mr. Allen’s claim.
In Garcia Carillo v. Sanchez Hurtado, 2023 TN Wrk. Comp. App. Bd. LEXIS 40, at *9-10 (Aug. 16, 2023), the Appeals Board explained an involuntary dismissal should be granted when asked for by an employer after an employee has presented his evidence but failed to prove he is entitled to benefits. The Board wrote, “[I]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.” If the motion is granted, the trial court may deny the request for benefits. Id. at *10. This is a dismissal of the employee’s requested benefits, not a dismissal of the employee’s claim as a whole. The trial court must determine whether the employee offered sufficient evidence to show he is likely to prevail at a hearing on the merits. Id.
Applying this authority, United Cabinet contended that Mr. Allen did not file his petition within the statute of limitations. Tennessee Code Annotated section 50-6- 203(b)(1) (2022) reads, “[W]hen the employer has not paid workers’ compensation benefits to or on behalf of the employee, the right to compensation . . . shall be forever barred, unless the notice required by § 50-6-201 is given to the employer and a petition for benefit determination is filed with the bureau . . . within one (1) year after the accident resulting in injury.” (Emphasis added).
Mr. Allen sincerely and credibly testified about how his injury occurred, and the medical records document that he has an inguinal hernia and needs surgery. He described United Cabinet as a work environment with a strict chain of command and high employee
1 Mr. Allen asked to call a witness, but United Cabinet objected because he did not disclose her as required. Tennessee Compilation Rules and Regulations 0800-02-21-.15(1) (March, 2022) states, “The party requesting an expedited hearing must list any witnesses it intends to call at the expedited hearing on the request for expedited hearing form.” Since neither hearing request listed any witnesses, the objection was sustained. 2 turnover. When his supervisor did not help him with his claim, he simply worked through pain because he did not know he had any other option and needed his pay.
Mr. Allen testified that he became injured at work lifting and stacking heavy drums on February 22, 2022. The Court finds Mr. Allen reported the injury to his supervisor immediately. The Tennessee Supreme Court has long held, “Oral notice to the employee’s supervisor may constitute actual notice” for purposes of section 50-6-201. Gragg v. White Consol. Industries, Inc., 1992 Tenn. LEXIS 486, at *4 (Tenn. 1992). Paul, and later supervisors, have allowed Mr. Allen to work light duty since February 22, 2022. Paul did nothing else to assist Mr. Allen.
United Cabinet paid no benefits during the year after the injury. Mr. Allen filed the petition on March 29, 2023, after one year passed. The Court finds he did not timely file the petition.
Mr. Allen argued, “I’ve done everything they told me to do” to his detriment. The Court agrees.
Importantly, however, the Workers’ Compensation Law makes no exception for these circumstances. Mr. Allen had one year to file his claim. He did not do so within that time. The Court holds that he is unlikely to show at a final hearing that he timely filed his claim, so United Cabinet’s motion for involuntary dismissal of his request for interlocutory relief is granted. Since this is a threshold issue, the remaining issues need not be decided at this time.
The Court sets a status hearing on November 13 at 9:00 a.m. Central Time. You must dial (615) 532-9552 or (866) 943-0025 to participate.
Finally, United Cabinet’s employee, Paul, declined to accept Mr. Allen’s injury report. Rule 0800-02-01-.05(1) (May, 2018) states, “An employer must accept any notice of a claim for workers’ compensation benefits from any employee . . . alleging an injury.” The Court refers United Cabinet to the Compliance Program for consideration of the imposition of a civil penalty.
IT IS ORDERED.
ENTERED September 11, 2023.
________________________________________ JUDGE KENNETH M. SWITZER Court of Workers’ Compensation Claims
3 Appendix
Technical record: 1. Petition for Benefit Determination 2. Dispute Certification Notice, and parties’ additional information 3. Order Setting Status Hearing 4. Hearing Request 5. Scheduling Order 6. Hearing Request 7. Employer’s Brief 8. Employer’s Exhibit and Witness List 9. Notice-audio recording filed with clerk 10. Notice-Rule 72 Declaration of Shakira Holland filed
Evidence: 1. Declaration of Mr. Allen 2. Form C-32, Choice of Physicians Form 3. Wage Statement 4. Denial 5. Dr. Dutton’s medical records 6. Declaration of Shakira Holland 7. Letter from Deana Cook 8. Recording of Mr. Allen’s statement to Shakira Holland
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on September 11, 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 Compliance X WCCompliance.Program@tn.gov Program
_______________________________________ Penny Shrum Clerk, Court of Workers’ Compensation Claims
4 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 *
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