Jones, Alfrend v. F S Sperry Co., Inc.

FILED
Aug 05, 2021
11:28 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
ALFREND JONES, ) Docket No. 2020-08-0726
Employee, )
v. )
F S SPERRY CO., INC., ) State File No. 442-2020
Employer, )
And )
AMERISURE MUTUAL INS. CO., ) Judge Allen Phillips
Carrier. )
COMPENSATION HEARING ORDER DISMISSING CASE
This case came before the Court for a Compensation Hearing on July 21, 2021. For
the following reasons, the Court dismisses the case.
History of Claim
On December 18, 2019, Mr. Jones sustained an injury, and Sperry provided medical
treatment. On March 3, 2020, the authorized physician placed Mr. Jones at maximum
medical improvement and assessed a permanent impairment rating. Sperry then attempted
to settle the case with Mr. Jones as required by Tennessee Code Annotated section 50-6-
207(3)(A), which states that, at the time the injured employee reaches maximum medical
improvement, the injured employee “shall be paid” benefits equal to his impairment rating.
Mr. Jones did not respond, so Sperry filed a Petition for Benefit Determination on
July 22, 2020, and listed the only issue as: “We have attempted to settle claim with
Employee but Employee will not advise if he is represented by an attorney and will not
contact Employer/Carrier’s attorney to discuss settlement.” The parties did not resolve the
case in mediation so the mediator issued a Dispute Certification Notice listing the only
issue as, “employee will not respond to attorney’s offer of settlement.”
Neither party filed a request for hearing within sixty days after issuance of the
Dispute Certification Notice. Thus, the Court entered a Show Cause Order on December
18 ordering that the parties appear and state why the Court should not dismiss the case.
1
At a Show Cause Hearing on January 5, 2021, Mr. Jones did not appear, and the
Court announced it would dismiss the case without prejudice. However, before the Court
could enter a dismissal order, Mr. Jones contacted an Ombudsman with the Bureau’s
Mediation and Ombudsman Services. The Ombudsman then contacted the Court to advise
that Mr. Jones misinterpreted the time of the show cause hearing because of the difference
between Eastern Time and Central Time. Based on Mr. Jones’s communication, the Court
did not enter an order of dismissal but instead reset the Show Cause Hearing for January
20.
On January 20, Mr. Jones appeared and stated he was consulting with an
Ombudsman and also stated that he wanted to speak with an attorney. Based on those
statements, the Court set aside its oral dismissal and allowed Mr. Jones until January 29 to
file a request for a hearing. He filed a request but failed to include four agreed upon dates
for a hearing as required. Nevertheless, considering Mr. Jones’s status as a self-represented
litigant, the Court allowed the case to proceed.
At a hearing on February 8, the Court declined to enter a Scheduling Order based
again on Mr. Jones’s statement that he wanted to consult with an attorney regarding
Sperry’s settlement offer. The Court advised Mr. Jones that it would allow him additional
time, but it would set the case for trial at the next hearing.
On March 1, the Court entered a Scheduling Order that set the July 21 Compensation
Hearing.1 After the Court entered the Scheduling Order, Mr. Jones filed nothing in support
of his claim, as the Scheduling Order required. As noted, he did not appear for the hearing,
and Sperry moved for dismissal. Mr. Jones contacted the Court eight days later, on July 29,
when he called the Court’s staff and said he was unaware of the Compensation Hearing.
Findings of Fact and Conclusions of Law
Mr. Jones chose to represent himself, which is his right. However, unrepresented
litigants must comply with the same standards to which represented parties must adhere.
Watson v. City of Jackson, 448 S.W.3d 919, 926 (Tenn. Ct. App. 2014). Further, Tennessee
Code Annotated section 50-6-216 requires that the Court apply the law fairly and
impartially, favoring neither the employee nor the employer. Here, the Court must follow
that directive in the context of two statutory provisions and the applicable procedural rules.
First, under Tennessee Code Annotated section 50-6-207(3)(A), the employer shall
pay the employee, at the time he reaches maximum medical improvement, permanent
disability benefits equal to his impairment rating. Sperry attempted to do so, but Mr. Jones
neither communicated his acceptance of those benefits nor did he advise Sperry’s counsel
if he was represented by an attorney. The failure to communicate prompted Sperry to file
this case.
1
The Court attaches all referenced orders in the attached Appendix.
2
Second, if Mr. Jones had accepted the benefits Sperry offered, Tennessee Code
Annotated section 50-6-240 requires Court approval of the settlement. Specifically, under
that section, a settlement is binding on the parties only if reduced to writing and determined
by the Court to provide substantially the benefits to which the employee is entitled. Had
Mr. Jones communicated with Sperry, the parties might have signed a settlement agreement
and presented it to the Court for approval. Mr. Jones might have accepted the offered
benefits at any of the hearings described above, and the Court might have held an approval
hearing at any time during the one-year pendency of the case.
Third, Tennessee Rules of Civil Procedure 41.02(1) states three separate grounds
for involuntary dismissal: failure to prosecute, to comply with the rules, and to comply
with court orders. All three grounds apply here.
Namely, Mr. Jones did not prosecute his case. Under Tennessee Code Annotated
section 50-6-239, the employee bears the burden of proving every element of his case by a
preponderance of the evidence. If Mr. Jones believed he was entitled to more benefits than
those based on the authorized physician’s rating, he had ample opportunity to pursue them.
The Court particularly notes his statements made at several hearings regarding consultation
with an Ombudsman and seeking legal counsel.
Next, Mr. Jones did not comply with the rules. He filed no documentation
supporting an award of benefits in excess of the treating physician’s rating and he did not
appear for trial as required.
Finally, Mr. Jones did not comply with the order setting the case for trial. The
Scheduling Order clearly stated the July 21 Compensation Hearing date. Moreover, at the
Scheduling Hearing, the Court specifically discussed the date for the Compensation
Hearing and set it by agreement of the parties. Based on the entire record, the Court finds
no justification for Mr. Jones’s failure to appear, or for why he failed to contact the Court
for the first time until eight days after the hearing. Notably, all orders contain the same
certificate of service, which lists the same addresses for Mr. Jones, both electronic and
physical. At no time did he voice any inaccuracies regarding his address or that he failed
to receive any of the Court’s orders.
In summary, Rule 41.02 “is necessary to enable the court to manage its own docket,
and to protect defendants against plaintiffs who are unwilling to put their claims to the test
but determined to subject them to the continuing threat of an eventual judgment.” Osagie
v. Peakload Temp. Serv., 91 S.W.3d 326, 329 (Tenn. Ct. App. 2002). Those procedural
safeguards apply here, and the Court, based on the entire record, exercises its discretion to
dismiss the case.
IT IS, THEREFORE, ORDERED as follows:
1. The Court dismisses the case with prejudice to refiling.
3
2. Sperry shall pay $150 costs to the Court Clerk within five business days after this
order becomes final under Tennessee Compilation Rules and Regulations 0800-02-
21-.06 (August, 2019).
3. Sperry shall prepare and submit to the Court Clerk a Statistical Data Form (SD2)
within ten business days of this order becoming final.
4. Unless appealed, this order shall become final thirty days after issuance.
ENTERED August 5, 2021.
______________________________________
JUDGE ALLEN PHILLIPS
Court of Workers’ Compensation Claims
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on August 5, 2021.
Name USPS Email Service sent to:
Alfrend Jones, Employee X X antonjones675@gmail.com
6478 Jameson Dr.,
Harlem, GA 30814
Stephen Miller, Employer’s Attorney X smiller@mckuhn.com
mdoherty@mckuhn.com
______________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
APPENDIX
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Order Setting Show Cause Hearing
4. Second Order Setting Show Cause Hearing
5. Order Setting Aside Dismissal and Granting Additional Time to File Hearing
Request
6. Request for Scheduling Hearing
7. Status Hearing Order
4
8. Scheduling Order
9. Employer’s Pre-Hearing Brief
10. Employer’s Witness and Exhibit List
11. Post-Discovery Dispute Certification Notice
5
Compensation Hearing Order Right to Appeal:
If you disagree with this Compensation Hearing Order, you may appeal to the Workers’
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’
Compensation Appeals Board, 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 thirty calendar days of the date the
compensation hearing 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 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 filing fee. You must file the fullycompleted
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 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. A licensed court
reporter must prepare a transcript and file it with the court clerk within fifteen calendar
days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
evidence prepared jointly by both parties within fifteen calendar 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 of
the evidence 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. 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. The appealing party
has fifteen calendar days after the date of that notice to submit a brief to the Appeals Board.
See the Practices and Procedures of the Workers’ Compensation Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate Procedure.
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. See Tenn. Code Ann. §
50-6-239(c)(7).
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 filestamped 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