Judy, Kevin v. Covenant Transport, Inc. , 2019 TN WC 114 ( 2019 )

FILED
Jul 23, 2019
04:10 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
COURT OF WORKERS' COMPENSATION CLAIMS
AT CHATTANOOGA
Kevin Judy, ) Docket No.: 2018-01-0756
Employee, )
v. )
Covenant Transport, Inc., ) State File No.: 30496-2017
Employer, )
and )
New Hampshire Insurance Company, ) Judge Audrey A. Headrick
Carrier. )
COMPENSATION HEARING ORDER
GRANTING SUMMARY JUDGMENT
This case came before the Court on July 11, 20 19, on Covenant Transport, Inc.'s
(Covenant's) Motion for Summary Judgment. 1 Covenant asserts that Mr. Judy did not
file a Petition for Benefit Determination (PBD) until more than one year following its last
payment for his claimed work injury. Thus, Covenant argues the statute of limitations
expired, which entitles it to summary judgment as a matter of law. 2 For the reasons
below, the Court finds Covenant is entitled to summary judgment.
Procedural History
The Court summarizes the factual background to this motion as follows. Kevin
Judy, an over-the-road truck driver, allegedly sustained a bilateral wrist injury from
driving a rental car on either November 24 or 25, 2016. Covenant terminated him on the
same day.
Mr. Judy admitted he did not notify Covenant of his injury until April 19, 2017.
He claimed that he delayed notice fearing retaliation and humiliation. Mr. Judy stated he
gave notice after he "got up the courage to report it."
1
The Court gleaned the facts from Covenant's statement of undi sputed facts, pleadings, and exhibits.
2
Covenant also raised the issue of untimely notice. Based on the Court's holding regarding the statute of
limitations, it need not address notice.
Mr. Judy went to Centra Care in April 2017 complaining of bilateral wrist pain
while driving on November 24, 2016. He continued treating at Centra Care through
November 20, 2017. Covenant filed a Notice of Controversy on May 12, 2017.
Mr. Judy argued that Covenant last paid medical expenses for his claimed injuries
on April 13, 2018. He filed a Centra Care invoice showing that Unified Health Services
(UHS) paid $72.32 to Centra Care on that date. The invoice shows that UHS received a
"collection fee" from Centra Care. The invoice does not reflect from whom UHS
collected the money or for which date of service the payment applied. Mr. Judy filed a
July 9, 2018 e-mail from a UHS Liaison at Centra Care that confirmed receipt of
payments from UHS for services from April 20 to November 20, 2017. The email did
not state from whom UHS collected the payments.
Covenant disagreed with these payment dates and filed several affidavits
documenting that it last paid on Mr. Judy's claim on September 1, 2017. Covenant stated
it did not pay Mr. Judy's Centra Care's bills after September 1. Likewise, Covenant
stated that UHS is neither its agent nor does it have a business relationship with Covenant
or its third-party administrator.
Mr. Judy filed a PBD on October 23, 2018. Covenant filed this Motion for
Summary Judgment, along with a statement of undisputed facts, a memorandum of law,
exhibits, and several affidavits.
In response to this motion, Mr. Judy filed his own Rule 71 Declarations, responses
to Requests for Admissions, a response to the statement of undisputed facts, and exhibits.
Mr. Judy argued that his claim is not barred by the statute of limitations because he filed
a PBD within one year ofUHS's last payment to Centra Care.
Covenant countered that the undisputed facts negate essential elements of Mr.
Judy's claim. Specifically, Covenant argued that Mr. Judy failed to timely notify
Covenant of his injury claim as required by Tennessee Code Annotated section 50-6-201,
and failed to file a PBD either within one year of his alleged November 2016 injury or
within one year from the date of the last voluntary payment. It further argued Mr. Judy
did not produce proof of agency or affidavits regarding UHS. Covenant maintained that
summary judgment is appropriate because Mr. Judy did not respond to its motion as
required by Rule 56.
2
Law and Analysis
Summary judgment is appropriate if there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of law. To meet this
standard, Covenant must either: ( 1) submit affirmative evidence that negates an essential
element of Mr. Judy's claim, or (2) demonstrate that his evidence is insufficient to
establish an essential element of his claim. Tenn. Code Ann.§ 20-16-101; see also Rye v.
Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If
Covenant satisfies this burden, Mr. Judy must then establish that the record contains
specific facts upon which a trier of fact could base a decision in his favor. Rye, at 265.
Regarding the statute of limitations, Tennessee Code Annotated section 50-6-
203(b )(2) provides the right to compensation is barred unless a PBD is filed within one
year from the time the employer ceased to make payments of compensation. Further,
subsection (c) provides the issuing date of the last payment of compensation by the
employee constitutes the time the employer ceased making payments.
Here, Covenant submitted proof that it last paid medical expenses on September 1,
2017. Mr. Judy filed a PBD over a year later on October 23, 2018. Thus, the Court holds
that Covenant met its burden of negating an essential element of Mr. Judy's claim: his
PBD must be filed within one year of the last payment of compensation.
Since Covenant met its burden, the Court considers whether Mr. Judy identified
facts showing a genuine issue for trial. The Court finds that he did not show that
Covenant made a payment within one y~ar of his October 23, 20 18 PBD filing. Instead,
Mr. Judy provided documentation showing that UHS, a collection agency, paid Centra
Care on April 13, 2018.
In sum, the undisputed facts establish that Mr. Judy waited more than one year
after Covenant's last payment before filing his PBD. Having carefully reviewed and
considered the evidence in the light most favorable to Mr. Judy, the Court holds
Covenant has demonstrated that his evidence is insufficient to establish a genuine issue of
material fact as to the expiration of the limitations period.
3
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. The Court grants Covenant's motion for summary judgment and dismisses Mr.
Judy's claim with prejudice to its refiling.
2. Absent an appeal, this order shall become final in thirty days.
3. The Court assesses the $150.00 filing fee against Covenant under Tennessee
Compilation Rules and Regulations 0800-02-21-.07, for which execution may
tssue as necessary.
4. Covenant shall pay the filing fee within five business days of the order becoming
final.
5. Covenant shall file form SD-2 within ten business days of this order becoming
final.
It is ORDERED.
ENTERED July 23,2019.
Workers' Compensation Judge
4
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on July 23, 2019.
Name Certified Email Service sent to:
Mail
Kevin Judy, X X 710-D Wyman Ct.
Employee Orlando, FL 32809
kevinsjudy@gmail.com
Gary Napolitan, X gary.naQolitan@Jeitnerfinn.com
Employer Attorney lisa.sizemore@leitnerfinn.com
~ ~ ~~M4~
PENNYSHRU ,COURTCLERK
wc.courtcl rk@tn.gov
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: "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.
COMPENSATION HEARING NOTICE OF APPEAL
Tennessee Division of Workers' Compensation
www. tn .gov/ labor-wfd/wcomp.shtml
wc.courtclerk@tn .gov
1-800-332-2667
Docket#: - - - - - - -- --
State File #/YR:
-------
Employee
v.
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:0Employer0Employee
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 •
LB-1103 rev. 10/18 Page 1 of 2 RDA 11082
Employee N a m e : - - -- -- - - - -- SF#: _ _ _ _ _ __ _ __ DOl : _ _ __ __
Appellee lsi
Appellee (Opposing Party): _ __ _ _ __ _ .At Hearing:OEmployerC]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 I 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/defau lt /files/docs/not ice of ap pea l - civ il or crimi nal. pdf
LB-1103 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-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, I 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. I 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. I 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 Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV I 1115) RDA 11082
9. My expenses are:
RenUHouse Payment $ per month Medical/Dental $ _ _ _ _ _ per month
Groceries $ per month Telephone $ _ _ _ _ _ per month
Electricity $ per month School Supplies $ _ __ _ _ per month
Water $ per month Clothing $ _ _ _ __ per month
Gas $ per month Child care $ _ _ _ _ _ per month
Transportation $ per month Child Support $ _ _ _ _ _ per month
Car $ per month
Other $ per month (describe :
10. Assets:
$ _ _ __
Automobile (FMV) ~--------
Checking/Savings Acct. $ _ __ __
House $ _ ____:__
(FMV) - - - - - - - -- -
Other $ _ _ __ Desotib:e:_ _ _ _ __ _ _ __
11 . My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
Sworn and subscribed before me, a notary public, this
_ _ _ day of _ _ __ _ __ __ _ _ , 20,_ __
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ _ __
LB-11 08 (REV 11/15) RDA 11082