Court: TN Workers Comp Appeals Board
Attorneys:
Garett P. Franklyn, Knoxville, Tennessee, for the employer-appellant, Duracell Manufacturing Company.
Ronald J. Berke, Chattanooga, Tennessee, for the employee-appellee, Kimberlee Thomas.
Judge(s): GODKIN
In this second interlocutory appeal in this matter, the employer argues the trial court erred in concluding that its petition for benefit determination, filed after the employee’s original petition, did not constitute a counterclaim. After initially providing certain workers’ compensation benefits, the employer denied further medical treatment, and the employee filed a petition for benefit determination in September 2020. The issues raised in that petition were resolved by agreement, and a dispute resolution statement was issued reflecting that agreement. In August 2021, the employer filed its own petition for benefit determination seeking to move the claim to resolution and noting it was “ready to mediate in hopes of resolving the claim.” The employer’s petition was assigned the same state file number and docket number as the employee’s original petition. When the parties were unable to fully resolve the claim, a dispute certification notice was issued, and the employer, by subsequent email, asked the mediator to add as a disputed issue a claimed overpayment of benefits. Shortly after the employee’s deadline to obtain expert medical proof passed, the employee filed a notice of voluntary dismissal, to which the employer objected. Because the employee’s initial petition had been inadvertently omitted from the record, the trial court denied the employee’s attempt to voluntarily dismiss the case, noting that the employer had filed the petition and the employee could not nonsuit the other party’s petition. The employee asked the court to reconsider its decision, pointing out that she had, in fact, filed the initial petition in the case. Thereafter, the court allowed the employee to voluntarily dismiss her petition without prejudice. The employer appealed, and we vacated the trial court’s order to the extent it suggested that the employer’s petition had also been dismissed. We remanded the case for the trial court to address whether, in light of its order granting the employee’s voluntary dismissal of her petition, the employer had properly raised a counterclaim, and if so, whether the counterclaim survived the voluntary dismissal of the employee’s petition pursuant to Tennessee Rule of Civil Procedure 41.01. On remand, the court determined that the employer’s petition did not include a counterclaim and did not survive the employee’s nonsuit. Within ninety days after the trial court entered its order of dismissal, the employee timely refiled her claim. The employer has appealed. Upon careful consideration of the record and the arguments of counsel, we affirm the trial court’s order for reasons other than those stated by the trial court and remand the case.
thomask_061824.pdf
