The opinion
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
CARMA KEAN, ) Docket No. 2023-06-4955
Employee, )
v. )
NAVION BKE BELLEVUE, LLC, ) State File No. 21448-2022
Employer, )
and )
AMERICAN ZURICH INSURANCE ) Judge Joshua Davis Baker
COMPANY, )
Carrier. )
COMPENSATION ORDER GRANTING PARTIAL SUMMARY JUDGMENT
AND ORDERING THE PAYMENT OF FUTURE REASONABLE AND
NECESSARY MEDICAL TREATMENT
Navion filed a motion for partial summary judgment contending that no genuine
issue of material fact exists regarding permanent impairment from Ms. Kean’s work-
related injury. After a June 3 hearing, the Court grants the motion. Further, because the
parties agree her claim is compensable, Navion shall provide continuing reasonable and
necessary medical treatment.
Claim History
Ms. Kean suffered work-related injuries to her knees, right hand, and back after a
fall. Navion authorized treatment with Dr. Stuart Smith for her knees, Dr. Ryan Snowden
for her back, and Dr. Tyler Staelin for her right hand. After releasing her, each doctor
assigned 0% permanent impairment for her work injuries.
In response, Ms. Kean filed a petition disputing the extent of her permanent
impairment. Specifically, she disputed Dr. Snowden’s rating, claiming he had “assigned an
impairment rating of 1% to the body as a whole” rather than zero. After mediation resulted
in a dispute certification notice, the Court entered a scheduling order with discovery
deadlines.
On April 4, Navion notified Ms. Kean of its intent to use C-32 forms from Drs.
Smith and Snowden, then notified her on April 26 of its intent to use Dr. Staelin’s C-32.
Although the forms had the doctors’ signatures, they were copies rather than originals. Ms.
Kean objected to the use of the forms but did not depose the doctors or question the forms’
authenticity.
Navion filed its motion for summary judgment, and Ms. Kean responded, agreeing
as undisputed that Dr. Staelin had not assigned permanent impairment but disputing the
two other material facts about impairment:
4. Dr. Smith assigned “a 0% Permanent Partial Impairment rating.”
10. Dr. Snowden assigned “a 0% Permanent Partial Impairment rating.”
She disputed those because Dr. Smith “stated [the] injury resulted in permanent
impairment on original [C-30A, Final Medical Report] in 2022.” Similarly, “Dr. Snowden
gave a 1% impairment rating on original [C-30A, Final Medical Report].”
Ms. Kean also filed a C-32 signed by chiropractor Dr. Douglas Long on May 15.
His statement of qualifications was attached, but the permanent impairment section was
left blank.
Law and Analysis
The statement of undisputed material facts does not address medical and temporary
disability benefits, other than to suggest that the parties do not dispute those benefits were
sought by the petition and certified as issues in the dispute certification notice. Therefore,
the Court interprets Navion’s motion as seeking partial summary judgment.
Partial summary judgment is appropriate “where resolving the motion does not
require [considering] the credibility of witnesses or [making] compensability
determinations.” Oldham v. Freeman Webb Co. Realtors, 2024 TN Wrk. Comp. App. Bd.
LEXIS 8, at *12 (Mar. 6, 2024).
Here, the parties agree Ms. Kean’s claim is compensable. Further, the Court does
not have to weigh evidence or determine witnesses’ credibility, as the only admissible
evidence submitted demonstrates Ms. Kean has no permanent impairment from her work
injuries.
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 (2023).
2
As the moving party, Navion must do one of two things to prevail on its motion: (1)
submit affirmative evidence that negates an essential element of Ms. Kean’s claim, or (2)
demonstrate that the evidence is insufficient to establish an essential element of Ms. Kean’s
claim. Tenn. Code Ann. § 20-16-101 (2023); see also Rye v. Women’s Care Ctr. of
Memphis, MPLLC, 488 S.W.3d 235, 264 (Tenn. 2015).
If Navion does either or both, Ms. Kean must respond by producing specific facts
showing a genuine issue for trial. Id.; Tenn. R. Civ. P. 56.06. If she fails to do so, “summary
judgment, if appropriate, shall be entered against [her].” Id.
A permanent impairment rating is an essential element of permanent partial
disability benefits. Awarding permanent disability benefits “is dependent on the existence
of a permanent medical impairment rating.” Baumgardner v. United Parcel Serv., Inc.,
2017 TN Wrk. Comp. App. Bd. LEXIS 63, at *11 (Oct. 18, 2017). Without it, “there is no
statutory mechanism by which a trial court can award permanent partial disability
benefits.” Id.
Navion argues summary judgment is appropriate because Ms. Kean incurred no
permanent impairment from her work injuries. It supports this undisputed fact by citations
to the doctors’ C-32s.
Unlike medical records, C-32s are “admissible at any stage of a workers’
compensation case in lieu of a deposition[.]” Tenn. Code Ann. § 50-6-235(c)(2). Because
depositions are admissible under Rule 56.04, a C-32 is also admissible for summary
judgment if the form adheres to statutory requirements. Sadeekah v. Abdelazeez, 2021 TN
Wrk. Comp. App. Bd. LEXIS 19, at *15, n.6 (June 22, 2021).
Here, Navion complied with the statutory requirements. Namely, it timely notified
Ms. Kean of the forms’ intended use. While she objected to their use, she did not depose
the doctors or request a continuance for that purpose, so her objection is waived. Tenn.
Code Ann. § 50-6-235(c)(2). The forms included the required doctors’ statements of
qualifications and were signed. Although they were copies of the originals, Ms. Kean did
not raise “a genuine question . . . as to the authenticity of the original[s][.],” making the
reproduced forms admissible. Id. at -235(c)(1).
Based on the C-32s, Navion has negated an essential element of Ms. Kean’s claim
for permanent partial disability benefits by showing she retained no permanent impairment.
Therefore, Ms. Kean must respond with specific facts showing a genuine issue for trial.
She has expressed a sincerely-held belief that she has permanent impairment, and she filed
many medical records and other doctors’ forms and documents.
3
Yet summary judgment is limited by Rule 56 to only “pleadings, depositions,
answers to interrogatories, admissions on file, [and] affidavits, if any.” Tenn. R. Civ. P.
56.04. “Medical records, standing alone, are not included in that list.” Sadeekah, 2021 TN
Wrk. Comp. App. Bd. LEXIS 19, at *13. Moreover, a C-32 is the only form that substitutes
for a doctor’s deposition. So the Final Medical Reports that Ms. Kean filed, although signed
by doctors, are inadmissible evidence for summary judgment.
Further, Dr. Long’s C-32 is inadmissible because Ms. Kean did not notify Navion
of her intent to use the form “not less than twenty (20) days before the date of intended
use” on June 3. Tenn. Code Ann. § 50-6-235(c)(2). Regardless, even if admissible, the
form was blank on her permanent impairment.
In Ms. Kean’s petition, the stated reason for this claim is a disagreement over her
permanent impairment ratings. But Ms. Kean has not produced specific facts in admissible
form to show a genuine issue exists concerning permanent impairment or any current need
for medical treatment. Her belief is argument not proof. See Lurz v. Int’l Paper Co., 2018
TN Wrk. Comp. App. Bd. LEXIS 8, at *17 (Feb. 14, 2018) (parties cannot rely solely on
their own medical interpretations of the evidence to successfully support their arguments).
However, Ms. Kean is entitled to future medical benefits. An employee who suffers
a compensable injury is entitled to any reasonable, necessary, and work-related medical
treatment. Tenn. Code. Ann. § 50-6-204(a)(1)(A). The Court might later be tasked with
determining whether Navion is responsible for further medical treatment for Ms. Kean’s
compensable injuries. See Reynolds v. Liberty Mut. Ins. Co., No. 02S01-9203-CH-00027,
1992 Tenn. LEXIS 620, at *4-5 (Tenn. Workers’ Comp. Panel Oct. 7, 1992) (“If and when
application is made for any such future medical expenses, the trial judge will at that time
and under the evidence then adduced have to determine whether the employer or its
insurance carrier is liable for the payment of such expenses.”).
Navion is entitled to summary judgment on permanent disability. Ms. Kean remains
entitled to medical benefits in the future, the need for which must be determined at the time
they are requested.1
IT IS ORDERED AS FOLLOWS:
1. Navion is entitled to summary judgment as a matter of law regarding the
payment of permanent disability benefits. That claim is dismissed with
prejudice.
1
Ms. Kean requested payment of temporary disability benefits and the issue was certified in the dispute
certification notice but later agreed she is not entitled to additional temporary disability benefits.
4
2. Navion shall furnish reasonable, necessary, and work-related future medical
benefits under Tennessee Code Annotated section 50-6-204.
3. The Court taxes the $150.00 filing fee to Navion, to be paid to the Court Clerk
under Tennessee Compilation Rules and Regulations 0800-02-21-06 (2023)
within five days of this order becoming final.
4. Navion shall file Form SD-2 with the clerk within ten business days after this
order becomes final.
5. Unless appealed, this Order shall become final 30 days after entry.
ENTERED June 18, 2024.
_____________________________________
Joshua Davis Baker, Judge
Court of Workers’ Compensation Claim
CERTIFICATE OF SERVICE
I certify that a copy of this order was sent as indicated on June 18, 2024.
Name Certified Fax Email Service sent to:
Carma Kean, X carmaiskean@gmail.com
Employee
John W. Barringer, Jr., X jbarringer@manierherod.com
Employer’s Attorney
______________________________________
Penny Shrum, Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
5
Right to Appeal:
If you disagree with the Court’s Order, you may appeal to the Workers’ Compensation
Appeals Board. To do so, you must:
1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the
Court of Workers’ Compensation Claims before the expiration of the deadline.
If the order being appealed is “expedited” (also called “interlocutory”), or if the
order does not dispose of the case in its entirety, the notice of appeal must be filed
within seven (7) business days of the date the order was filed.
If the order being appealed is a “Compensation Order,” or if it resolves all issues
in the case, the notice of appeal must be filed within thirty (30) calendar days of
the date the Compensation Order was filed.
When filing the Notice of Appeal, you must serve a copy on 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 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 are responsible for ensuring a complete record is presented on appeal. If no court
reporter was present at the hearing, you may request from the Court Clerk the audio
recording of the hearing for a $25.00 fee. If you choose to submit a transcript as part of your
appeal, which the Appeals Board has emphasized is important for a meaningful review of
the case, a licensed court reporter must prepare the transcript, and you must file it with the
Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board,
and you will receive notice once it has been submitted. For deadlines related to the filing of
transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the
Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)
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.
If neither party timely files an appeal with the Appeals Board, the Court Order
becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory
orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
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Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
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