The opinion
FILED
Sep 27, 2024
11:57 AM(CT)
TENNESSEE COURT OF
TENNESSEE BUREAU OF WORKERS’ COMPENSATION WORKERS' COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
CLAIMS
AT JACKSON
FREDERICK PERRY, ) Docket No. 2023-07-7092
Employee, )
v. )
THYSSENKRUPP ELEVATOR ) State File No. 50234-2020
CORP., )
Employer, )
And )
INDEMNITY INS. CO. OF NORTH ) Judge Shaterra R. Marion
AMERICA, )
Carrier. )
)
COMPENSATION ORDER GRANTING
SUMMARY JUDGMENT
Thyssenkrupp Elevator filed a motion for partial summary judgment,
acknowledging that Mr. Perry remains entitled to medical benefits for the work injury. The
central issue is whether Mr. Perry can present sufficient evidence to establish an
impairment rating, which is an essential element of his claim for permanent disability
benefits. For the reasons below, the Court holds Mr. Perry did not present the necessary
evidence, and Thyssenkrupp is entitled to summary judgment on the issue of permanent
disability benefits.
Procedural History
Mr. Perry allegedly suffered a work-related right shoulder injury in December 2019.
He filed a Petition for Benefit Determination seeking permanent disability benefits. The
Court entered a scheduling order, and Thyssenkrupp filed this motion for partial summary
judgment. Mr. Perry filed a response in opposition, although he did not respond to the
statement of undisputed facts. The Court heard the motion on September 17, 2024.
Facts
Thyssenkrupp filed a statement of undisputed material facts with citations to the
record under Tennessee Rules of Civil Procedure 56.03 (2023). Mr. Perry did not respond
to the statement of undisputed material facts, and he stated at the hearing he does not
dispute Thyssenkrupp’s statement of facts. The Court summarizes these facts as follows:
Mr. Perry suffered a rotator cuff tear in 2011 while working for Thyssenkrupp. He
reached maximum medical improvement and received a 4% impairment rating from one
doctor and an 8% impairment rating from another doctor. The parties settled the 2011
injury using a 6% impairment rating.
Mr. Perry suffered a new rotator cuff tear on December 11, 2019, while working
for Thyssenkrupp. He received authorized treatment from Dr. Christopher Pokabla. Dr.
Pokabla released Mr. Perry at maximum medical improvement with a 3% impairment
rating.
By affidavit, Dr. Pokabla testified that the AMA Guides require that he determine
the “percentage of impairment directly attributable to preexisting as compared with
resulting conditions and directly contributing to the total impairment rating derived.” He
explained that he must consider Mr. Perry’s preexisting right shoulder impairments of 4%
and 8%. Dr. Pokabla, explained that the 3% rating, being less than the preexisting
impairment, resulted in no impairment for the 2019 injury.
Based on these facts, Thyssenkrupp contends the Court should grant partial
summary judgment because it negated an essential element of Mr. Perry’s claim.
Specifically, it argues he does not have sufficient proof to show entitlement to permanent
disability benefits for his 2019 injury.
Mr. Perry did not offer any medical proof because of the expense of either deposing
Dr. Pokabla or obtaining an independent medical exam. Mr. Perry filed a statement of
undisputed facts without including citations to the record, and Thyssenkrupp did not
respond to that statement. Mr. Perry offered an affidavit saying he hurts far worse after his
second surgery.
Mr. Perry disputes Dr. Pokabla’s medical opinion. He also argues that Dr. Pokabla
contradicted himself by first saying Mr. Perry had a 3% rating and later saying he had no
additional impairment beyond his initial rotator cuff tear. He argues this “change of
opinion” amounts to a disputed issue of material fact.
Law and Analysis
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.
As the moving party, Thyssenkrupp must either: (1) submit affirmative evidence
that negates an essential element of Mr. Perry’s claim, or (2) demonstrate that his evidence
is insufficient to establish an essential element of his claim. Tenn. Code Ann. § 20-16-101
(2023); Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn.
2015). If Thyssenkrupp meets this burden, Mr. Perry must then establish that the record
contains specific facts upon which the Court could base a decision in his favor. Rye, at 265.
The essential element at issue is from section 50-6-207(3)(h), which reads, “If an
employee has previously sustained an injury compensable under this section and has been
awarded benefits for that injury, the injured employee shall be paid compensation … only
for the degree of permanent disability that results from the subsequent injury.”
Mr. Perry did not respond to the statement of undisputed material facts as required
by Rule 56. 1 Therefore, the facts are undisputed. The issue then is whether under Rule
56.06 summary judgment is “appropriate.”
Thyssenkrupp successfully demonstrated that Mr. Perry’s evidence is insufficient
to establish an impairment rating, an essential element of his claim. Mr. Perry has not
disclosed any medical proof rebutting Dr. Pokabla’s opinion, and the evidence does not
support his contention that Dr. Pokabla contradicted himself.
Mr. Perry cites to Bennett v. Howard Johnsons Motor Lodge, 714 S.W.2d 273, 277
(Tenn. 1986) to support a contention that “no apportionment of any kind” is permitted in
Tennessee. He argues that this language means that Mr. Perry’s second tear should be
treated separately from his first tear, and he should be compensated for a 3% impairment
rating. However, as Thyssenkrupp correctly points out, Bennett discusses apportionment
of liability between insurance carriers, and not apportionment of impairment ratings.
The Appeals Board has held that motions for partial summary judgment “can be
appropriately addressed in circumstances where resolving the motion does not require the
trial court to consider the credibility of witnesses or make compensability determinations
based on its weighing of the evidence presented to date. Oldham v. Freeman Webb
Company Realtors, 2024 TN Wrk. Comp. App. Bd. LEXIS 8, *12 (March 6, 2024).
Here, the question of permanency can be appropriately addressed without
considering witness credibility, and Thyssenkrupp accepted compensability.
Therefore, the Court finds that Thyssenkrupp successfully demonstrated that Mr.
Perry’s evidence is insufficient to prove his entitlement to permanent disability benefits for
his 2019 injury and holds that it is entitled to summary judgment on the issue of permanent
disability benefits. Mr. Perry remains entitled to authorized, necessary, and related medical
benefits.
1
Although Thyssenkrupp did not respond to Mr. Perry’s statement of undisputed facts, those facts are not
supported by citations to the record.
IT IS, THEREFORE, ORDERED as follows:
1. Thyssenkrupp is entitled to summary judgement as a matter of law regarding the
payment of permanent disability benefits. The claim is dismissed with prejudice.
2. Thyssenkrupp shall furnish reasonable, necessary, and work-related future medical
benefits under Tennessee Code Annotated section 50-6-204.
3. The Court taxes the $150 filing fee to Thyssenkrupp, 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. Thyssenkrupp 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 thirty days after entry.
ENTERED September 27, 2024.
________________________________________
Judge Shaterra R. Marion
Court of Workers’ Compensation Claims
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on September 27, 2024.
Name Email Service sent to:
Steve Taylor, X staylor@tcmfirm.com
Employee’s Attorney
Hailey David, X davidh@waldrophall.com
Employer’s Attorney smithj@waldrophall.com
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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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