          IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                           AT NASHVILLE

WILLIAM SACHS                              )
         Employee,                         )   Docket No.: 2014-05-0015
                                           )
v.                                         )   State File No.: 61900-2014
                                           )
JOHNSON CONTROLS                           )   Date of Injury: JULY 30, 2014
        Employer,                          )
                                           )   Judge:
And                                        )   BAKER
                                           )
INDEMNITY INS. CO. OF NORTH                )
AMERICA.                                   )

                                DISMISSAL ORDER

       THIS CAUSE came before the Court on July 21, 2015, for a hearing of the Motion
to Dismiss filed by Johnson Controls. The Court conducted the hearing via
teleconference. The employee, William Sachs, did not respond to Johnson Controls’
Motion and did not participate in the teleconference. Upon consideration of the Motion
with accompanying memorandum of law and the argument of Johnson Controls’ counsel,
the Court finds that the Motion is well-taken and should be granted.

                                  History of Claim

       On October 7, 2015, Mr. Sachs filed a Petition for Benefit Determination seeking
workers’ compensation benefits for an injury to his neck and shoulder that he allegedly
suffered in the course and scope of his employment for Johnson Controls. Johnson
Controls paid Mr. Sachs temporary disability and medical benefits but later denied the
claim on causation grounds.

       The workers’ compensation mediator filed a Dispute Certification Notice, and the
parties participated in an Expedited Hearing on the issues of temporary disability and
medical benefits. The Court ordered Johnson Controls to provide Mr. Sachs additional
medical care for his neck but denied his request for temporary disability benefits.


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       On March 26, 2015, the parties appeared before the Court for an Initial Hearing.
At the Initial Hearing, Mr. Sachs and counsel for Johnson Controls agreed on discovery
deadlines, pretrial filing deadlines, and selected a date for the Compensation Hearing.
The Court issued an “Initial Hearing Order” memorializing the agreed deadlines and
setting the Compensation Hearing for September 29, 2015. The Initial Hearing Order
required the parties to respond to all interrogatories and requests for production of
documents on or before May 26, 2015. The Order also required both parties to disclose
the identity of its expert witnesses to the opposing party on or before June 26, 2015.

        When the Court convened the hearing of Johnson Controls’ Motion to Dismiss,
Mr. Sachs did not call in to participate. The file shows that the Court Clerk sent Mr.
Johnson a notice of hearing to the address on file. The undersigned attempted to call Mr.
Sachs using the phone numbers included on the Petition for Benefit Determination: the
first number was disconnected; the undersigned received a busy signal when he dialed the
second number.

                            Johnson Controls’ Contentions

        Johnson Controls requests dismissal of Mr. Sachs’ claim due to his failure to
comply with the Court’s Initial Hearing Order. Specifically, it cites Mr. Sachs’ failure to
disclose the expert witnesses he intends to rely upon to establish the causal connection
between the work he performed for Johnson Controls and his alleged injuries. It further
argues that it timely disclosed the identity of its expert witness to Mr. Sachs and has
scheduled that expert’s deposition. Because Mr. Sachs bears the burden of proof and has
not disclosed an expert, Johnson Controls argues that it should not be required to expend
the time and resources to develop a defense.

      Additionally, Johnson Controls cites Mr. Sachs’ failure to respond to written
discovery as grounds for dismissal. It sent Mr. Sachs written discovery via certified mail
on May 26, 2015, and had not received a response, or heard from, Mr. Sachs in several
months at the time of the hearing.

       For these reasons, Johnson Controls argues that the Court should dismiss Mr.
Sachs’ claim pursuant to Rule 41.02 of the Tennessee Rules of Civil Procedure for failure
to prosecute his claim and failure to comply with Court’s Initial Hearing Order.

                       Findings of Fact and Conclusions of Law

        Rule 41.02 of the Tennessee Rules of Civil Procedure provides, “For failure of the
plaintiff to prosecute or to comply with these rules or any order of court, a defendant may
more for dismissal of an action or of any claim against the defendant.” “Trial courts
possess inherent, common-law authority to control their dockets and the proceedings in
their courts. Their authority is quite broad and includes the express authority to dismiss

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cases for failure to prosecute or to comply with the Tennessee Rules of Civil Procedure
or the orders of the court.” Hodges v. Tennessee Att’y Gen., 43 S.W.3d 918, 920 (Tenn.
Ct. App. 2000).

       Johnson Controls moved for dismissal of Mr. Sachs’ claim for his failure to
comply with the portion of Initial Hearing Order that required him to provide discovery
responses and to disclose the identity of his expert witnesses. While the Court
appreciates that Mr. Sachs proceeded without the assistance of legal counsel, this does
not excuse his failure to comply with this Court’s order. See Id.1

       Furthermore, Johnson Controls argued that Mr. Sachs’ failure to participate in
discovery prejudiced it by denying Johnson Controls sufficient notice of the evidence Mr.
Sachs may present at the September 29, 2015 Compensation Hearing. Because Mr.
Sachs failed to respond to discovery and disclose his expert witnesses, and also failed to
respond to this motion, Johnson Controls is left in the unenviable position of having to
develop its defense in legal darkness. The Court agrees that requiring such a course of
action would prejudice Johnson Controls. For this reason, the Court finds Johnson
Controls’ Motion well-taken and grants it.


IT IS, THEREFORE, ORDERED as follows:

         1. Mr. Sachs’ claim against Johnson Controls for workers’ compensation benefits
            is dismissed without prejudice to refiling pursuant to Rule 41.02 of the
            Tennessee Rules of Civil Procedure.

         2. The Court assesses the $150 filing fee in this claim to Johnson Controls and/or
            its workers’ compensation carrier pursuant to Rule 0800-02-21-.07 (2015) of
            the Mediation and Hearing Rules of the Tennessee Division of Workers’
            Compensation. Johnson Controls or his carrier shall promptly remit the filing
            fee to the Clerk of the Court of Workers’ Compensation Claims.

         3. Unless an appeal of is filed with the Workers’ Compensation Appeals
            Board or the Tennessee Supreme Court, this order shall become final in
            thirty (30) days.




1
 “Parties who choose to represent themselves are entitled to fair and equal treatment by the courts. However, the
courts may not prejudice the substantive rights of the other parties in order to be ‘“fair’” to parties representing
themselves. Parties who choose to represent themselves are not excused from complying with the same applicable
substantive and procedural law that represented parties must comply with.” Hodges v. Tennessee Att’y Gen., 43
S.W.3d 918, 920 (Tenn. Ct. App. 2000) (Internal citations omitted).

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ISSUED AND FILED WITH THE COURT OF WORKERS’ COMPENSATION
CLAIMS ON THE 13th DAY OF AUGUST, 2015.




                         ____________________________________
                         Judge Joshua Davis Baker
                         Court of Workers’ Compensation Claims




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Right to Appeal:

Tennessee Law allows any party who disagrees with this Order of Dismissal to appeal the
decision to the Workers’ Compensation Appeals Board. To file a Notice of Appeal, you
must:

   1. Complete the enclosed form entitled: “Compensation Hearing Notice of Appeal.”

   2. File the completed form with the Court Clerk within thirty (30) days of the date
      the Compensation Order was entered by the Workers’ Compensation Judge. See
      Tenn. Comp. R. & Regs. 0800-02-22-.01(1)(b) (2015).

   3. Serve a copy of the Request for Appeal upon the opposing party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or
      other delivery service. In the alternative, the appealing party may file an Affidavit
      of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
      fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
      of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
      will consider the Affidavit of Indigency and issue an Order granting or denying
      the request for a waiver of the filing fee as soon thereafter as is
      practicable. Failure to timely pay the filing fee or file the Affidavit of
      Indigency in accordance with this section shall result in dismissal of the
      appeal.

   5. After the Workers’ Compensation Judge approves the record and the Court Clerk
      transmits it to the Workers’ Compensation Appeals Board, the appeal will be
      docketed and assigned to an Appeals Board Judge for Review. At that time, a
      docketing notice shall be sent to the parties. Thereafter, the parties have fifteen
      calendar days to submit briefs to the Appeals Board for consideration. See Tenn.
      Comp. R. & Regs. 0800-02-22-.02(3) (2015).




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                                 CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Dismissal Order was sent to the
 following recipients by the following methods of service on this the 13th day of August,
 2015.

Name                 Certified   First   Via   Fax      Via     Email Address
                     Mail        Class   Fax   Number   Email
                                 Mail
Kitty Boyte                                             X       kboyte@constangy.com
William Sachs        X                                          115 Wheeler Street
                                                                Shelbyville, TN 37160



                                           _____________________________________
                                           Penny Shrum, Clerk of Court
                                           Court of Workers’ Compensation Claims
                                           WC.CourtClek




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