Watson, Mekisha v. Lowe's Home Centers, Inc.

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Mekisha L. Watson ) Docket No. 2022-06-1338
)
v. ) State File No. 33143-2019
)
Lowe’s Home Centers, Inc. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Joshua D. Baker, Judge )

Affirmed and Remanded

The employee suffered a compensable injury for which she received workers’
compensation benefits. After the employee reached maximum medical improvement, the
employer sent correspondence to the employee in an effort to resolve the claim, but no
settlement was reached. The employee filed a petition for benefit determination and,
prior to participating in a mediation, the employer filed a motion to dismiss the petition
on the basis that the statute of limitations had expired. In its brief filed in support of its
motion, the employer argued that the employee’s petition was filed more than one year
after the last voluntary payment of benefits was issued. At a hearing on the employer’s
motion, the trial court concluded that, because the parties had not yet participated in
mediation and because no dispute certification notice had been filed, the motion to
dismiss was premature. The employer appealed, asserting the trial court erred in finding
it did not have jurisdiction to rule on the motion to dismiss. Having carefully reviewed
the record, we affirm the trial court’s decision and remand the case.

Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Meredith B. Weaver joined.

W. Troy Hart, Knoxville, Tennessee, for the employer-appellant, Lowe’s Home Centers,
Inc.

Mekisha L. Watson, Lebanon, Tennessee, employee-appellee, pro se
Memorandum Opinion 1

Mekisha Watson (“Employee”) suffered injuries to her left foot, arm, and shoulder
in May of 2019 while in the course and scope of her employment for Lowe’s Home
Centers, Inc. (“Employer”). 2 Employer accepted the claim as compensable and provided
authorized medical care. Upon Employee’s reaching maximum medical improvement,
counsel for Employer forwarded proposed settlement documents to Employee on June
30, 2020. After some communication with Employee, counsel forwarded a second set of
proposed documents on July 13, 2020. Employee did not respond to the second set of
documents and did not engage in further discussions with Employer relating to the
settlement of her claim. Employee states that when she eventually spoke to Employer’s
attorney, he informed her that her “time had run” and that Employer was no longer
obligated to make any settlement offers. After speaking with an ombudsman with the
Bureau of Workers’ Compensation, she filed a petition for benefit determination on June
29, 2022, seeking future medical care and permanent disability benefits.

Prior to participating in mediation, Employer retained new counsel, who filed a
motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(1), citing the
expiration of the statute of limitations. 3 In support of its motion, Employer asserted in its
brief that the last voluntary payment of benefits was issued on May 21, 2020. 4 Employee
responded to the motion, asserting that she did not understand that she needed to file
anything to preserve her rights. She explained that she believed, because benefits had
been paid, her claim had already been “filed.” She also cited other factors, such as
working through a pandemic, caring for family members, and contracting COVID-19, as
reasons for her lack of a timely response.

After hearing argument, the trial court issued a decision concluding that the
workers’ compensation statutes and Bureau rules require the issuance of a dispute
certification notice before it could address a motion to dismiss, which is a dispositive
motion that would resolve Employee’s claim for workers’ compensation benefits in its
entirety. The court stated that the motion to dismiss was premature and not properly
before the court. Employer appealed, asserting the “trial court abused [its] discretion by

1
“The appeals board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the appeals board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Tenn. Comp. R. & Regs. 0800-02-22-.03(1) (2020).
2
There are no medical records or other exhibits contained in the record; therefore, we glean the factual
history of the claim from the papers included in the technical record.
3
Tennessee Rule of Civil Procedure 12.02(1) references a court’s subject matter jurisdiction.
4
This purported statement of fact was unsupported by an affidavit or other sworn testimony.
2
denying Employer’s Motion to Dismiss on the basis that it did not have jurisdiction to
rule on the motion.”

As an initial matter, we note that Employer’s characterization of the trial court’s
order is not accurate. The trial court did not deny the motion to dismiss due to a lack of
“jurisdiction.” Instead, it declined to rule on the motion to dismiss because the motion
was premature and not properly before the court from a procedural standpoint.
Tennessee Code Annotated section 50-6-203, the provision addressing the statute of
limitations, states:

No request for a hearing by a workers’ compensation judge under this
chapter shall be filed with the court of workers’ compensation claims, other
than a request for settlement approval, until a workers’ compensation
mediator has issued a dispute certification notice certifying issues in dispute
for hearing before a workers’ compensation judge.

Tenn. Code Ann. § 50-6-203(a) (2022). Moreover, the Workers’ Compensation Law also
addresses requirements for issuing a dispute certification notice:

If the parties are unable to reach settlement of any disputed issues, the
mediator shall issue a written dispute certification notice setting forth all
unresolved issues for hearing before a workers’ compensation judge.

Tenn. Code Ann. § 50-6-236(d)(1) (2022) (emphasis added).

Employer contends the trial court has jurisdiction to hear its motion and relies, in
part, on section 236(d)(3)(A), which provides that “[n]o party is entitled to a hearing
before a workers’ compensation judge to determine temporary or permanent
benefits . . . unless a workers’ compensation mediator has issued a dispute certification
notice . . . .” In its brief on appeal, Employer argues that because its motion to dismiss
does not pertain to the employee’s entitlement to temporary or permanent disability
benefits, the court “has jurisdiction” to hear and rule on the substance of its motion. We
find this argument unpersuasive for two reasons. First, section 236(d)(3)(A), when read
in light of section 50-6-203(a), stands for the proposition that a disputed issue regarding
an employee’s entitlement to disability benefits is but one of the circumstances where the
trial court cannot act without a dispute certification notice. Section 236(d)(3)(A) does not
purport to describe all circumstances in which a dispute certification notice must be
issued prior to the court’s taking action. Second, the original petition filed by Employee
asked the court to address Employee’s entitlement to permanent disability benefits, and
the motion to dismiss, if successful, would preclude all such benefits. As such, the
express language of section 236(d)(3)(A) mandates the issuance of a dispute certification
notice in these circumstances and further supports our conclusion that the motion was
filed prematurely.

3
In its brief on appeal, Employer asserts that its motion to dismiss should have been
granted because the trial court was “divested of subject matter jurisdiction due to the
expiration of the statute of limitations.” Subject matter jurisdiction is defined as
“[j]urisdiction over the nature of the case and the type of relief sought.” Black’s Law
Dictionary, 10th ed. There is no question that the Court of Workers’ Compensation
Claims has “original and exclusive jurisdiction” over workers’ compensation cases such
as this one, and it has the authority to address the type of relief Employer seeks. See
Tenn. Code Ann. § 50-6-237 (2022). Additionally, raising the affirmative defense of the
expiration of the statute of limitations in a motion does not, alone, establish either that the
statute of limitations has expired or that the trial court has been divested of subject matter
jurisdiction. In fact, to determine whether the expiration of the statute of limitations bars
a claim, the court must make certain findings, or, in other words, exercise subject matter
jurisdiction. Thus, the issue in this case is not one of subject matter jurisdiction.

In addition, Tennessee Code Annotated section 50-6-239 addresses the relevance
of dispute certification notices. Subsection (a) states that “[w]ithin sixty (60) days after
the issuance of a dispute certification notice . . ., a party seeking further resolution of
disputed issues shall file a request for a hearing with the bureau . . . .” Tenn. Code Ann. §
50-6-239(a) (2022) (emphasis added). Moreover,

[u]nless permission has been granted by the assigned workers’
compensation judge, only issues that have been certified by a workers’
compensation mediator within a dispute certification notice may be
presented to the workers’ compensation judge for adjudication.

Tenn. Code Ann. § 50-6-239(b)(1). Even then, however, the issues that can be presented
to a workers’ compensation judge without being first identified on a dispute certification
notice are statutorily limited. See Tenn. Code Ann. § 50-6-239(b)(2)(A) & (B). A
motion to dismiss based on the alleged expiration of the statute of limitations is not an
exception identified by rule or statute.

Finally, we conclude that the court could not rule on such an affirmative defense
while the case is in its current procedural posture. By its very nature, a Rule 12.02
motion to dismiss asserts that the claim fails on its face, without the need for the court to
consider other evidence. See, e.g., Redwing v. Catholic Bishop for the Diocese if
Memphis, 363 S.W.3d 436 (Tenn. 2012) (finding a motion to dismiss filed pursuant to
Rule 12.02(6) and based on the expiration of the statute of limitations premature because
discovery was necessary to determine whether the statute of limitations served to bar the
claim). In assessing whether a statute of limitations has expired in a workers’
compensation claim, a court must consider evidence establishing certain facts, such as the
date of injury, whether benefits have been paid and, if so, the date of the last voluntary

4
payment of benefits. Here, no such evidence was submitted to the court. 5 If such
evidence had been submitted to the court, the motion would have been converted to a
Rule 56 motion for summary judgment. See Tenn. R. Civ. P. 12.02. Trial court
regulations prohibit the court from entertaining a motion for summary judgment until a
scheduling order has been entered. See Tenn. Comp. R. & Regs. 0800-02-21-.18(1)(b).

In short, the trial court declined to rule on Employer’s motion to dismiss because
no mediation had occurred and no dispute certification notice had been issued pursuant to
statutory requirements. The court concluded that the motion to dismiss was premature
for this reason, as a dispute certification notice is necessary before proceeding to a
hearing. We find no error in the court’s decision. Furthermore, the court’s decision does
not deprive Employer of access to the courts.

For the foregoing reasons, we affirm the decision of the trial court and remand the
case. Costs on appeal are taxed to Employer.

5
Arguments of counsel and allegations in a brief are not evidence. See Martin v. Norfolk S. Ry. Co., 271
S.W.3d 76, 86 n.3 (Tenn. 2008).
5
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Mekisha L. Watson ) Docket No. 2022-06-1338
)
v. ) State File No. 33143-2019
)
Lowe’s Home Centers, Inc. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Joshua D. Baker, Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 3rd day
of February, 2023.

Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
W. Troy Hart X wth@mijs.com
dmduignan@mijs.com
Mekisha L. Watson X mekishawatson76@gmail.com
Joshua D. Baker, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims

Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov