Gibson, William v. Dawn of Hope Development Center, Inc.

TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT GRAY WILLIAM GIBSON, ) Docket Number: 2018-02-0207 FILED Oct 24, 2018 Employee, ) 08:55 AM(CT) v. ) WORKERS’ COMPENSATION DAWN OF HOPE DEVELOPMENT ) State File Number: 7430-2018 CLAIMS CENTER, INC., ) Employer, ) and ) STARNET INSURANCE CoO., ) Judge Brian K. Addington Carrier. )

COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT This claim came before the undersigned Workers’ Compensation Judge on October 16, 2018, upon Dawn of Hope’s Motion for Summary Judgment. Mr. Gibson did not appear for the hearing.

Procedural History Mr. Gibson alleged injuries to his neck, shoulder, knees and psychological health arising out of his employment with Dawn of Hope on February 15, 2017. Dawn of Hope disputed whether Mr. Gibson gave notice of any injury for that date and denied the claim.

Mr. Gibson filed a Petition for Benefit Determination (PBD) on April 11, 2018, and a Request for Expedited Hearing on July 18. Dawn of Hope filed an Amended Motion for Summary Judgment.

Findings of Fact and Conclusions of Law 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 (2018).

Dawn of Hope must do one of two things to prevail on its motion for summary judgment: (1) submit affirmative evidence that negates an essential element of Mr. Gibson’s claim, or (2) demonstrate that Mr. Gibson’s evidence is insufficient to establish an essential element of his claim. Tenn. Code Ann. § 20-16-101 (2017); see also Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Dawn of Hope is successful in meeting this burden, Mr. Gibson “may not rest upon the mere allegations or denials of its pleading.” Jd. at 265. Rather, he must respond by producing evidence that sets forth specific facts showing there is a genuine issue for trial. /d.; Tenn. R. Civ. P. 56.06. He must do more than simply show that there is some metaphysical doubt as to the material facts. Rye, at 265.

To determine whether summary judgment is appropriate, the Court looks to whether there are genuine issues of material fact on the essential elements of Mr. Gibson’s claim. In doing so, the Court must review the evidence in the light most favorable to Mr. Gibson as the nonmoving party and draw all reasonable inferences favoring him. Payne v. D and D Elec., 2016 TN Wrk. Comp. App. Bd. LEXIS 21, at *12 (May 4, 2016).

The Workers’ Compensation Law provides that: In instances when the 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 notice is given to the employer and a petition for benefit determination (PBD) is filed with the bureau on a form prescribed by the administrator within one (1) year after the accident resulting in injury. Tenn. Code Ann. § 50-6-203(b)(1)(emphasis added).

Here, Dawn of Hope asserted Mr. Gibson’s claim is barred by the statute of limitations because it did not pay any benefits on his claim and he failed to file a PBD within one year of the alleged injury. The Court finds that Mr. Gibson’s alleged injury date is February 15, 2017; however, he did not file a PBD with the bureau until April 11, 2018, a year and fifty-five days after his injury. Further, he confirmed in his response that Dawn of Hope made no payments on his case.

Mr. Gibson has not come forward, at this summary judgment stage, with any proof demonstrating that Dawn of Hope made any payments on his claim or that he filed the PBD within one year of the alleged injury date. Therefore, the Court concludes no genuine issue of material fact exists and summary judgment is appropriate as a matter of law.

IT IS, THEREFORE, ORDERED as follows: 1. Mr. Gibson’s claim is dismissed with prejudice.

2. Dawn of Hope shall pay the $150.00 filing fee to the Clerk of the Court under Tennessee Compilation Rules and Regulations 0800-02-21-.07 (2018) within five business days of entry of this order.

3. Dawn of Hope shall file an SD-2 within ten business days of entry of this order.

4. Absent an appeal of this order, it shall become final thirty calendar days after issuance.

ENTERED October 24, 2018. /S/ Brian K. Addington BRIAN K. ADDINGTON, JUDGE Court of Workers’ Compensation Claims CERTIFICATE OF SERVICE I certify that a true and correct copy of Order was sent to the following recipients by the following methods of service on October 24, 2018.

Name Certified | Fax | Email Service sent to: Mail William Gibson, X | [email protected] Employee Kelly Campbell, X | [email protected] Employer’s Attorney

Sin sy Hl AUMm— Stan ot aur COURT CLERK [email protected]

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: “Compensation Hearing 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 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 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.

LB-1103

oe COMPENSATION HEARING NOTICE OF APPEAL Tennessee Division of Workers’ Compensation www. to.gov/labor-wfid/weompshtml [email protected] 1-800-332-2667 Docket #: State File #/YR:

Employee

Employer Notice Notice is given that

[List name(s) of all appealing party(ies) on separate sheet if necessary] appeals the order(s) of the Court of Workers’ Compensation Claims at

to the Workers’ Compensation Appeals Board. [List the date(s) the order(s) was filed in the court clerk’s office] Judge Statement of the Issues Provide a short and plain statement of the issues on appeal or basis for relief on appeal:

List of Parties Appellant (Requesting Party): At Hearing: [_]Employer{_JEmployee Address:

Party’s Phone: Email: Attorney's Name: BPR#: Attorney’s Address: Phone: Attorney’s City, State & Zip code:

Attorney’s Email:

* Attach an additional sheet for each additional Appellant * rev. 10/18 Page 1 of 2 RDA 11082 Employee Name: SF#: DOI: Appellee(s) Appellee (Opposing Party):_ At Hea ring:L_|Employer|_]Employee Appellee’s Address:

Appellee’s Phone: Email: Attorney’s Name: BPR#: Attorney’s Address: Phone:

Attorney's City, State & Zip code:

Attorney’s Email:

* Attach an additional sheet for each additional Appellee * CERTIFICATE OF SERVICE I, , certify that | have forwarded a true and exact copy of this Compensation Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of Board of Workers’ Compensation Appeals on this the day of , 20

[Signature of appellant or attorney for appellant]

Attention: This form should only be used when filing an appeal to the Workers’ Compensation Appeals Board. If you wish to appeal a case to the Tennessee Supreme Court, please utilize the form provided by the Court which can be found on their website at the following address: http://www.tncourts.gov/sites/default/files/docs/notice of appeal - civil or criminal.pdf LB-1103 rev. 10/18 Page 2 of 2 RDA 11082

Tennessee Bureau of Workers’ Compensation French Landing Drive, I-B Nashville, TN 37243-1002 800-332-2667 AFFIDAVIT OF INDIGENCY I, , having been duly sworn according to law, make oath that because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be waived. The following facts support my poverty.

1. Full Name: 2. Address:

3. Telephone Number: 4. Date of Birth:

5. Names and Ages of All Dependents: Relationship:

Relationship:

Relationship:

Relationship:

6. | am employed by:

My employer's address is:

My employer's phone number is:

7. My present monthly household income, after federal income and social security taxes are deducted, is: $ 8. | receive or expect to receive money from the following sources:

AFDC $ per month beginning SSI $ per month beginning Retirement $ per month beginning Disability $ per month beginning Unemployment $ per month beginning Worker's Comp.$ per month beginning Other $ per month beginning

LB-1108 (REV 11/15) RDA 11082 9. My expenses are: Medical/Dental $ Telephone $ School Supplies $ Clothing $ Child Care $ Child Support $ Rent/House Payment $ per month Groceries $ per month Electricity $ per month Water $ per month Gas $ per month Transportation $ per month Car $ per month Other $ per month (describe: 10. Assets: Automobile $ Checking/Savings Acct. $ House $ Other $ 11. My debts are: Amount Owed To Whom (FMV) per month per month per month per month per month per month

(FMV)

Describe:

| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete and that | am financially unable to pay the costs of this appeal.

APPELLANT Sworn and subscribed before me, a notary public, this day of

NOTARY PUBLIC My Commission Expires: LB-1108 (REV 11/15) , 20 RDA 11082