Craig, Devontay v. Shimmick Construction Co., Inc. , 2023 TN WC 80 ( 2023 )

FILED
Oct 27, 2023
11:09 AM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Devontay Craig, ) Docket No.: 2023-01-5358
Employee, )
v. )
Shimmick Construction Co., Inc., ) State File No.: 56772-2021
Employer, )
And )
Ace American Insurance Company, ) Judge Audrey Headrick
Carrier. )
COMPENSATION ORDER GRANTING SUMMARY JUDGMENT
The Court heard Shimmick’s Motion for Summary Judgment on October 26, 2023,
on whether Mr. Craig’s claim is barred by the statute of limitations. For the reasons below,
the Court holds it is and grants Shimmick’s motion.
Claim History
Mr. Craig filed a Petition for Benefit Determination on July 20, 2021, alleging that
he injured his right leg on June 21, 2021, while moving scaffolding. Shimmick authorized
treatment with Dr. Todd Grebner, who later stated Mr. Craig’s right-leg condition did not
primarily arise from his employment.
Shimmick filed a Notice of Denial based on Dr. Grebner’s causation opinion. After
Shimmick’s denial, a Bureau mediator issued a Dispute Certification Notice. Mr. Craig
did not file a hearing request within sixty days.
The Court entered an Order of Dismissal Without Prejudice on January 26, 2022,
and Mr. Craig filed a second petition on March 24, 2023. Shimmick moved for summary
judgment, arguing that the claim is time-barred. In support of its motion, a claims
manager’s affidavit confirmed that Shimmick’s last payment for benefits occurred on
October 25, 2021.
Mr. Craig appeared for the motion hearing but did not file a response.
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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, Shimmick must do one of two things to prevail on its motion:
(1) submit affirmative evidence that negates an essential element of Mr. Craig’s claim, or
(2) demonstrate that Mr. Craig’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 Shimmick does either or both,
Mr. Craig must respond by producing specific facts showing a genuine issue for trial. Id.;
Tenn. R. Civ. P. 56.06.
Shimmick argued the Court should grant summary judgment because it
demonstrated that Mr. Craig failed to timely file a petition, so his claim is time-barred.
Tennessee Code Annotated section 50-6-203(b)(2) governs the time within which a petition
must be filed when an employer has voluntarily provided benefits, as in this case.
Specifically, within one year after the work accident, the right to compensation is forever
barred unless a petition is filed within one year from the time the employer “ceased to make
payments of compensation to or on behalf of the employee.”
Here, the undisputed facts show that Shimmick last made a payment of benefits on
October 25, 2021, but Mr. Craig did not file his second petition until March 24, 2023. An
employee whose claim is involuntarily dismissed must refile a petition within the required
timeframe. Day v. Great Salons of Knoxville, Inc., 2021 TN Wrk. Comp. App. Bd. LEXIS
7, at *11 (Feb. 24, 2021). Section 50-6-203(b)(2) required Mr. Craig to file his second
petition on or before October 25, 2022, which he did not do. Therefore, Shimmick negated
an essential element of his claim, and it also demonstrated that his evidence is insufficient
to establish an essential element of his claim. Shimmick’s Motion for Summary Judgment
is granted.1
IT IS THEREFORE ORDERED as follows:
1. Mr. Craig’s claim for workers’ compensation benefits is dismissed with prejudice
to its refiling. Unless appealed, this order shall become final in thirty days.
2. Shimmick shall pay the $150.00 filing fee to the Clerk within five business days
after this order becomes final under Tennessee Compilation Rules and Regulations
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Given this ruling, it is unnecessary to address the recently filed motion to compel discovery responses.
2
0800-02-21-.06.
3. Shimmick shall file the Form SD-2 with the Clerk within ten business days of this
order becoming final.
ENTERED October 27, 2023.
________________________________________
Audrey A. Headrick
Workers’ Compensation Judge
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on October 27, 2023.
Name Certified Email Service sent to:
Mail
Devontay Craig, X X 14789supa@gmail.com
Employee 6882 Spence Lane
Chattanooga, TN 37341
John Barringer, X jbarringer@manierherod.com
Employer’s Attorney
/s/Penny Shrum w/permission JD
______________________________________
Penny Shrum, Court Clerk
WC.CourtClerk@tn.gov
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For notices of appeal filed on or after July 1, 2022.
Compensation Order Right to Appeal:
If you disagree with this Compensation 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 within thirty calendar days of the
date the Compensation Order was filed. When filing the Notice of Appeal, you must
serve a copy upon 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. The
Court Clerk will prepare the technical record and exhibits for submission to the
Appeals Board, and you will receive notice once it has been submitted. 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. A licensed court reporter must prepare a
transcript, and you must file it with the Court Clerk within fifteen calendar days of
filing the Notice of Appeal. Alternatively, you may file a statement of the evidence
prepared jointly by both parties within fifteen calendar days of filing the Notice of
Appeal. The statement of the evidence must convey a complete and accurate
account of the testimony presented at the hearing. The Workers’ Compensation
Judge must approve the statement of the evidence before the record is submitted to
the Appeals Board. If the Appeals Board must 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. 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. You
have fifteen calendar days after the date of that notice to file a brief to the Appeals
Board. See the Rules governing the Workers’ Compensation Appeals Board on the
Bureau’s website
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
If neither party timely files an appeal with the Appeals Board, the trial court’s Order
will become final by operation of law thirty calendar days after entry. Tenn. Code
Ann. § 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.