Moss, Laundell v. Nationwide Surplus, LLC ( 2021 )

FILED
Dec 09, 2021
07:06 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
LAUNDELL MOSS, ) Docket No.: 2021-08-0362
Employee, )
v. )
NATIONWIDE SURPLUS, LLC, ) State File Number: 4797-2020
Employer, )
And )
TRAVELERS CASUALTY & ) Judge Deana Seymour
SURETY COMPANY, )
Insurance Carrier. )
EXPEDITED HEARING ORDER
The Court held an Expedited Hearing on December 1, 2021, to determine Laundell
Moss’s entitlement to medical and temporary disability benefits. Nationwide Surplus
contended Mr. Moss’s claim was barred by his failure to provide timely notice of his
injury and the statute of limitations. The Court finds that Mr. Moss is unlikely to prove at
a hearing on the merits that he timely filed his claim and denies his request for benefits.
History of Claim
Mr. Moss claimed a back injury after lifting at work on November 12, 2019.
According to Mr. Moss, he timely reported his injury to Nationwide Surplus and
completed workers’ compensation paperwork. However, he never received a panel of
physicians, so he sought treatment on his own.
Mr. Moss treated with neurosurgeon Dr. Fereidoon Parsioon. He first saw Dr.
Parsioon on December 30. Dr. Parsioon diagnosed a “huge” right L3-4 ruptured disc with
an extruded fragment and a cyst at L2-3. He recommended immediate surgery, but Mr.
Moss wanted to see if Nationwide Surplus would accept his workers’ compensation claim
before he proceeded.
1
Ultimately, Mr. Moss underwent surgery with Dr. Parsioon on January 21, 2020.
Nationwide Surplus’s workers’ compensation carrier denied the claim on the same date.
In May, Dr. Parsioon released Mr. Moss at maximum medical improvement.
On April 6, 2021, Mr. Moss filed a Petition for Benefit Determination.
At the hearing, Mr. Moss testified he had difficulty filing his claim due to the
pandemic. He also mentioned that he did not receive any bills for his treatment, which
made him think Nationwide Surplus was paying the claim. However, he admitted
speaking to claim representative Daniel Ladue about the denial of his claim and
acknowledged receiving a copy of the Notice of Denial.
Nationwide Surplus principally argued that Mr. Moss’s claim was barred by the
statute of limitations. Mr. Ladue testified by affidavit that Mr. Moss’s claim was denied
by the carrier without any benefits being paid. Lisa Weaving, Nationwide Surplus’s
Quality Environment Health & Safety Manager, also testified by affidavit that
Nationwide Surplus neither authorized nor paid for any medical treatment. Since Mr.
Moss filed his petition more than one year after his date of injury, Nationwide Surplus
contended his claim was barred. It further maintained that Mr. Moss failed to provide
timely notice.
Findings of Fact and Conclusions of Law
Mr. Moss must provide sufficient evidence from which the Court can determine he
is likely to prevail at a hearing on the merits. McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Under the Workers’ Compensation Law, in cases where the employer has not paid
benefits to or on behalf of the employee, the employee’s right to recover compensation is
forever barred unless he gives notice as required by Tennessee Code Annotated section
50-6-201 and files a Petition for Benefit Determination within one year after the accident
resulting in injury. See Tenn. Code Ann. § 50-6-203(b)(1) (2021) (emphasis added).
Here, the Court finds Mr. Moss provided timely notice of his claim to Nationwide
Surplus. According to his unrebutted testimony, he reported his injury and completed
workers’ compensation paperwork after returning to Memphis on November 15, 2019. 1
However, he filed his Petition for Benefit Determination on April 6, 2021, which was
more than one year after his November 12, 2019 date of injury. Thus, he did not file
1
Based on Mr. Moss’s testimony that he timely reported his injury but never received a panel of
physicians, the Court refers the case to the Bureau’s Compliance Program for consideration of an
assessment of a penalty under Rule 0800-02-24-05(e) of the Tennessee Compilation Rules and
Regulations.
2
within the one-year statute of limitations.
Mr. Moss asserted he had difficulty filing his claim due to the pandemic.
However, he cited no authority to suggest that the statute of limitations was tolled or
otherwise modified by the pandemic.
Mr. Moss also mentioned that he did not receive any bills for his treatment,
making him think Nationwide Surplus was paying the claim. The Court finds that any
reliance on that belief was unreasonable in view of his conversation with Mr. Ladue and
his receipt of the Notice of Denial.
Mr. Moss represented himself, as is his right. However, the Court cannot excuse
noncompliance 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). While the Court found Mr. Moss sincere and credible, it must hold he is
not likely to prevail at a hearing on the merits because he did not file his claim within one
year of his date of injury.
IT IS, THEREFORE, ORDERED as follows:
1. The Court denies Mr. Moss’s request for benefits at this time.
2. The Court refers the case to the Bureau’s Compliance Program for consideration
of an assessment of a penalty under Rule 0800-02-24-05(e) of the Tennessee
Compilation Rules and Regulations.
3. This case is set for a Scheduling Hearing on February 7, 2022 at 9:00 a.m.
Central Time. You must call 615-532-9550 or toll-free at 866-943-0014 to
participate in the Hearing. Failure to call might result in a determination of the
issues without your participation.
ENTERED December 9, 2021.
____________________________________
Judge Deana C. Seymour
Court of Workers’ Compensation Claims
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Appendix
Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Notice of Appearance
4. Request for Expedited Hearing, with Mr. Moss’s Rule 72 Declaration
5. Employer’s and Insurer’s Response to the Employee’s Request for Expedited
Hearing
6. Order on Show Cause Hearing
7. Employer’s Motion to Attend Expedited Hearing by Telephone
8. Order Allowing Employer’s Counsel to Appear by Telephone
9. Employer’s and Insurer’s Opposition to Relief Sought by Employee Through
Request for Expedited Hearing
10. Notice of Filing Affidavits of Daniel Ladue and Lisa Weaving
Exhibits
1. Medical records from Phoenix Neurosurgery
2. Affidavit of Daniel Ladue
3. Affidavit of Lisa Weaving
4. Petition for Benefit Determination
5. Notice of Denial of Claim for Compensation
6. MRI report signed by Dr. Duke at Diagnostic Imaging P.C.
7. Baptist Memorial Hospital x-ray report
8. Operative Report
9. Physical therapy note of April 24, 2020
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CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was sent as indicated on December 9, 2021.
Name Certified U.S. Via Service sent to:
Mail Mail Email
Laundell Moss, X X X 3097 Waynoka Ave. #4
Employee Memphis, TN 38111
dellmossjr81@gmail.com
Paul Nicks and Emil L. X pnicks@travelers.com
“Chip” Storey, Jr., cstoreyj@travelers.com
Employer’s Attorneys
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
Clerk of the Court of Workers’ Compensation Claims within seven business days of the
date the expedited hearing order was filed. When filing the Notice of Appeal, you must
serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of 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 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 the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to 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. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
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