The opinion
FILED
Nov 01, 2024
07:32 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Craig Cable ) Docket No. 2021-07-0312
)
v. ) State File No. 20542-2021
)
Conagra Foods Packaged )
Foods Co., Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Thomas L. Wyatt, Judge )
Affirmed and Remanded
In this interlocutory appeal, the employer argues the trial court erred in denying its motion
for partial summary judgment. The employee reported pain in his right shoulder while
working on an assembly line for the employer. At an expedited hearing, the court
determined the employee was likely to succeed at trial in proving his injury was primarily
related to his work but denied the employee’s request for certain temporary benefits.
Thereafter, the trial court entered a scheduling order with deadlines to identify expert
witnesses and file expert proof. The employer then filed a motion for summary judgment,
alleging the employee did not meet those deadlines, which supported dismissal of the
claim. The trial court determined that the employee, acting in a self-represented capacity,
disclosed his authorized treating physician as his expert witness, but it held the remainder
of the motion in abeyance so the parties could obtain the expert’s opinions. The parties
then deposed the expert, who testified the employee had sustained an injury arising
primarily out of the employment and would need continued medical care but retained no
permanent medical impairment. The employer renewed its motion for summary judgment,
asserting it was now a motion for partial summary judgment in light of the physician’s
testimony establishing the compensability of the claim but also negating an essential
element of the employee’s claim given the lack of any evidence of permanent medical
impairment. The trial court denied the motion, and the employer has appealed. After
careful review of the record, we affirm the trial court’s order for reasons other than those
stated by the court, and we remand the case.
Judge Meredith B. Weaver delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Pele I. Godkin joined.
1
J. Allen Callison, Brentwood, Tennessee, for the employer-appellant, Conagra Foods
Packaged Foods Co., Inc.
Craig Cable, Atwood, Tennessee, employee-appellee, pro se
Factual and Procedural Background
Craig Cable (“Employee”) was working for Conagra Foods Packaged Foods Co.,
Inc. (“Employer”), assembling food products when he reported pain in his right shoulder
on February 26, 2021. Employer authorized immediate medical care with Dr. Peter
Gardner at Physician’s Quality Care, who placed Employee on light duty and referred him
first to physical therapy, then to an orthopedic surgeon in April 2021. Employer provided
a panel of specialists, from which Employee selected Dr. Adam Smith, who initially saw
Employee in June 2021. At that appointment, Employee reported right shoulder girdle
pain, which Dr. Smith believed to be due to a muscular injury. Dr. Smith ordered a chest
MRI and maintained the light duty restrictions, including no lifting or pushing over two
pounds with the right arm.
Employee returned to Dr. Smith exactly one month later, at which time Dr. Smith
observed that Employee’s pain complaints seemed to be more paraspinous in nature.
Noting the MRI of the chest wall was negative, Dr. Smith requested a thoracic MRI. He
also continued the work restrictions, although he increased the maximum weight for lifting
with the right arm from two pounds to five pounds. Following that appointment, Employee
filed a petition for benefit determination seeking temporary disability benefits and asserting
he could not work in light of the restrictions assigned by Dr. Smith.
In August 2021, Employee returned to Dr. Smith, who stated the thoracic MRI was
“essentially normal” and referred him to his partner, Dr. William Seely, who specializes in
pain management. Dr. Smith also increased Employee’s weight limit to ten pounds for
lifting and pushing with the right arm. Employer arranged an appointment with Dr. Seely
in November 2021, but Employee was unable to attend due to illness. Dr. Seely ultimately
saw Employee and provided a trigger point injection in March 2022, which Employee
indicated provided temporary relief. The following month, Dr. Smith requested a cervical
MRI, which revealed a possible herniated disc. Dr. Smith saw Employee for the last time
on June 13, 2022, at which time he referred Employee to a neurosurgeon. Employer
provided a panel, and Employee selected Dr. John Brophy.
Dr. Brophy saw Employee one time on August 24, 2022, and diagnosed him with
cervical/trapezius myofascial pain. He determined there was no surgical treatment
necessary and completed a Form C-30A on September 6, 2022, releasing Employee at
maximum medical improvement with no impairment and no restrictions.
2
Meanwhile, the trial court conducted an expedited hearing on March 28, 2022. At
the hearing, Employee sought temporary disability benefits beginning June 14, 2021.
Employer argued that Employee’s alleged injury was idiopathic, as his injury allegedly
occurred while assembling sausage biscuits, which required minimal lifting, pushing, or
pulling. In its view, such an injury could have occurred at any location, including those
outside of work, and Employee could not establish that such an injury arose primarily out
of the employment. In the alternative, Employer argued it had offered light duty positions
within Employee’s restrictions, which Employee had unreasonably declined. Employee
testified that the first light duty position he was offered required him to use a “prodder” to
dislodge pita bread from a machine, which he said required the use of both arms. He also
testified that his last day worked was July 1, 2021.
Employer presented the affidavit of Felicia Harris, its Environmental Health and
Safety Manager. Ms. Harris stated Employee’s last day worked was June 14, 2021, and
that the position using the “prodder” did not require the use of both arms. She further noted
that on July 25, Employer offered an alternative position in the cold spiral room beginning
August 2, which also would have accommodated Employee’s restrictions. Employee
admitted he could perform that position.
In its April 18, 2022 order, the trial court determined Employee was likely to
succeed at trial in establishing that his injury arose primarily from a hazard associated with
his employment. The trial court recognized that the injury occurred while Employee was
assembling sausage biscuits but noted that Employer expected Employee to assemble sixty
sausage biscuits per minute, repeatedly reaching across a conveyor belt approximately 18
inches wide. It also concluded the job using the “prodder” was not a reasonable
accommodation based on Employee’s description of movements needed to perform the
required tasks. However, as all parties agreed the position in the cold spiral room was
within Dr. Smith’s restrictions, the court ordered the payment of temporary disability
benefits only from July 1 through August 2, 2021, the date on which the job in the cold
spiral room would have begun. That order was not appealed.
Following several scheduling conferences, the court entered a scheduling order that,
in part, set deadlines for expert disclosures by October 16, 2023, and completion of expert
proof by November 17, 2023. After Employee failed to provide a written expert disclosure
by the October deadline, Employer filed a motion for summary judgment, arguing that
Employee’s failure to identify an expert witness in compliance with the scheduling order
meant that he could not prove his injury arose primarily out of and in the course and scope
of his employment. Employee responded with a request for a continuance of the expert
disclosure deadline, which the court denied. The hearing on the motion for summary
judgment was set for February 6, 2024.
Thereafter, Employee filed a response to Employer’s dispositive motion in which
he argued he had previously disclosed Dr. Smith as his expert during prior status hearings,
3
as reflected in the court’s status orders. Specifically, at status conferences in April and
July 2023, Employee indicated he was working to obtain a Form C-32 from Dr. Smith,
which was reflected in the respective orders issued following those conferences. In its
order on the motion for summary judgment, which it entitled “Order Allowing Additional
Time to Respond to Motion for Summary Judgment,” the trial court agreed that Employee
had disclosed his expert witness and that he was working to obtain the appropriate proof
from that expert. Citing Rule 56 of the Tennessee Rules of Civil Procedure and Tenn.
Comp. R. and Regs. 0800-02-21-.18(1)(d), the trial court held the dispositive motion in
abeyance, determining Employee had been unable to obtain the requisite information to
respond to the motion and giving more time as allowed by both rules. 1 The court further
asked that the parties “inquire” of Dr. Smith whether he had assessed an impairment rating.
That order was not appealed.
The parties deposed Dr. Smith in June 2024. At the deposition, Dr. Smith testified
he had diagnosed Employee with shoulder girdle pain and requested a chest wall MRI
because he was concerned about a possible rhomboid or latissimus tear. When that MRI
was negative for injury to the muscles he was concerned about, and a thoracic MRI was
negative for any injury, he testified he had a “working diagnosis” of a muscular injury, so
he referred Employee to the pain specialist in his practice. Once Employee received a
trigger point injection, he did report some relief upon his return to Dr. Smith, and Dr. Smith
requested a cervical MRI in an effort to find the source of the pain. Once the cervical MRI
was complete, Dr. Smith saw what he believed to be an annular tear and a disc herniation
at C7-T1. As such, he referred Employee to a neurosurgeon, stating he had “ruled out” the
shoulder as the cause of Employee’s pain. 2 He further testified Employee did not have any
permanent impairment related to the shoulder, although he did believe the work injury was
the primary cause of the herniation and muscular injury, as well as the need for ongoing
treatment. Dr. Smith was questioned at length about Employee’s ongoing pain, and he
testified that if he had his “druthers,” Employee would return for treatment with a pain
specialist, since the trigger point injection was the only thing that provided him any relief.
1
Rule 56.07 of the Tennessee Rules of Civil Procedure provides:
Should it appear from the affidavits of a party opposing the motion that such party cannot
for reasons stated present by affidavit facts essential to justify the opposition, the court may
refuse the application for judgment or may order a continuance to permit affidavits to be
obtained or depositions to be taken . . . .
Employee did not file an affidavit stating the reasons for the delay, but the Bureau’s rule specifically does
not require an affidavit, stating, “The judge may[,] without the need for an affidavit from the non-moving
party[,] grant additional, reasonable time for the non-moving party to respond, obtain affidavits, engage in
discovery, or take depositions.” Tenn. Comp. R. & Regs. 0800-02-21-.18(1)(d) (2023).
2
Dr. Smith testified that he deferred to Dr. Brophy as to his assessment regarding any need for surgery of
the cervical spine, as well as Dr. Brophy’s opinion regarding whether the cervical herniation was the cause
of Employee’s pain.
4
Employer filed the transcript of Dr. Smith’s deposition with the court, as well as a
supplemental brief to the initial motion for summary judgment. Employer acknowledged
that Dr. Smith’s testimony supported the compensability of Employee’s injury. However,
Employer argued that Employee still did not have proof of any permanent medical
impairment causally related to the work injury and that, as such, its motion should be
considered one for partial summary judgment as to the issue of permanency. After a
hearing, the trial court denied the motion for summary judgment, stating that “determining
the compensability of an employee’s claim for benefits is almost always inappropriate at
an interlocutory stage.” Citing Oldham v. Freeman Webb Company Realtors d/b/a
Sunnybrook, No. 2022-03-0420, 2024 TN Wrk. Comp. App. Bd. LEXIS 8, at *12 (Tenn.
Wrk. Comp. App. Bd. Mar. 6, 2024). The trial court further observed that
Dr. Smith testified he did not know the exact anatomical cause of
[Employee’s] pain and recommended ongoing treatment by a pain specialist.
Until [Employee] receives the recommended treatment by the pain specialist,
it is not known whether the results of that treatment will produce evidence
that fundamentally alters the rights of the parties, including . . . entitlement
to permanent disability benefits.
Employer has appealed.
Standard of Review
The grant or denial of a motion for summary judgment is a matter of law that we
review de novo with no presumption that the trial court’s conclusions are correct. See Rye
v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). As such,
we must “make a fresh determination of whether the requirements of Rule 56 of the
Tennessee Rules of Civil Procedure have been satisfied.” Id. We are mindful of our
obligation to construe the workers’ compensation statutes “fairly, impartially, and in
accordance with basic principles of statutory construction” and in a way that does not favor
either the employee or the employer. Tenn. Code Ann. § 50-6-116 (2023).
Analysis
Employer contends the trial court erred in denying the summary judgment motion
because, at the summary judgment stage, Employee was unable to prove an essential
element of the case, namely any permanent impairment causally related to his compensable
work injury. In its brief, Employer asserts that “Employee reached maximum medical
improvement in August 2022” and further argues that “the trial court issued a scheduling
order on the [p]arties’ expert disclosure deadline, the Employee identified Dr. Smith as his
expert . . . , and the subsequent deposition of Dr. Smith established some elements [of
Employee’s claim], but not others.”
5
As we have noted in the past, summary judgment is appropriate if,
[s]ubject to the moving party’s compliance with Rule 56.03, the judgment
sought shall be rendered forthwith 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. In accordance with the mandates of Tennessee Rule of Civil
Procedure 56, a motion for summary judgment must include a statement of undisputed
facts, among other requirements. Specifically,
any motion for summary judgment made pursuant to Rule 56 of the
Tennessee Rules of Civil Procedure shall be accompanied by a separate
concise statement of the material facts as to which the moving party contends
there is no genuine issue for trial. Each fact shall be set forth in a separate,
numbered paragraph.
Tenn. R. Civ. P. 56.03 (emphasis added).
In the present case, Employer’s statement of undisputed material facts filed with the
initial summary judgment motion listed three undisputed material facts, as quoted below:
1. The trial court issued a Partial Scheduling Order providing that the Employee
“shall disclose the identity of [his] expert witnesses to opposing counsel and
provide the expert’s opinions to the opposing party by October 16, 2023.”
2. On February 14, 2022, Employee responded to Employer’s written discovery
for the “identity [of] each person you expect to call or who you may call as
an expert witness on your behalf in the trial of this cause, and to each expert
state . . . .” Employee responded: “At moment I have none. I’m sure that
will change.”
3. Employee has not disclosed any expert report as of the October 16, 2023,
deadline that he anticipates using in support of his claim for benefits.
Employee responded to that original motion and statement of undisputed facts by asserting
that he had identified Dr. Smith as his expert at two status conferences as reflected in the
trial court’s orders. He further responded that he was working to obtain a Form C-32 from
Dr. Smith.
Following the initial hearing of the summary judgment motion, the trial court issued
an order concluding that Employee had disclosed Dr. Smith as an expert witness and
6
requesting that the parties endeavor to obtain his opinions regarding permanent medical
impairment, if any. That order was not appealed, and the parties proceeded with Dr.
Smith’s deposition. Based on Dr. Smith’s testimony supporting Employee’s claim that he
sustained injuries arising primarily out of his employment, Employer filed a supplement to
its motion for summary judgment two days prior to the hearing, acknowledging it was not
contesting compensability but disputing the existence of permanent medical impairment
and the need for future medical treatment. 3 Importantly, Employer did not file a new
statement of undisputed material facts, even though the previously identified undisputed
material facts were no longer at issue.
The Tennessee Court of Appeals has previously stated that the undisputed
statements of material fact filed in support of summary judgment
are not merely superfluous abstracts of the evidence. Rather, they are
intended to alert the court to precisely what factual questions are in dispute
and point the court to the specific evidence in the record that supports a
party’s position on each of these questions. They are, in short, roadmaps,
and without them the court should not have to proceed further, regardless of
how readily it might be able to distill the relevant information from the record
on its own.
Owens v. Bristol Motor Speedway, Inc., 77 S.W.3d 771, 774 (Tenn. Ct. App. 2001) (citing
Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir. 1994)).
Although Employer’s supplemental brief filed in support of its motion for partial
summary judgment argues that Employee’s expert testified Employee did not have a
permanent impairment related to the shoulder condition, Employer did not file a
supplemental statement of undisputed facts in support of this contention in compliance with
Rule 56.03. Thus, Employer’s filings in support of its motion for summary judgment were
deficient, and, as such, we conclude Employer neither negated an essential element of
Employee’s claim nor demonstrated Employee’s evidence at the summary judgment stage
was insufficient to establish his claim for benefits. See Rye, 477 S.W.3d at 264. At this
stage, Employer has agreed Employee’s injuries are compensable based on Dr. Smith’s
testimony, rendering the statements of undisputed fact that are contained in this record
moot. If Employer wanted to pursue summary judgment based on some issue other than
compensability, the onus was on Employer to file a motion (or amend its pending motion)
in compliance with Rule 56. See Boesch v. Hall, No. E2023-00935-COA-R3-CV, 2024
Tenn. App. LEXIS 97, at *18 (Tenn. Ct. App. Mar. 6, 2024) (“[T]he consequences for
noncompliance with the rules depends on which rule has not been followed and which
party bears the burden at that particular stage of the proceedings.”).
3
After noting in its brief that Dr. Smith stated it was “common sense” for Employee to obtain further
treatment, Employer argued Dr. Smith’s opinion was not to a reasonable degree of medical certainty.
7
In the absence of a statement of material undisputed facts as required by Rule 56.03
of the Tennessee Rules of Civil Procedure, Employer was unable to meet its burden of
production under Rule 56. Accordingly, the burden of proof did not shift to Employee to
establish disputed issues of material facts. “Although the trial court may waive the
requirements of Rule 56.03 in an appropriate case, we caution trial courts that the
nonmoving party in a summary judgment proceeding should be sufficiently apprised of the
moving party’s basis for summary judgment.” Bobo v. City of Jackson, 511 S.W.3d 14, 22
(Tenn. Ct. App. 2015). Employer’s supplement to its motion for summary judgment,
which did not include an additional statement of undisputed material facts, relied on Dr.
Smith’s testimony that Employee retains no permanent impairment for his shoulder injury
to support its position that there are no disputed facts. However, Employer’s own brief
indicates a dispute remains regarding the need for additional medical treatment for the work
injury in light of the lack of any evidence of permanent medical impairment.
Moreover, although Employer’s brief on appeal asserts that Employee had reached
maximum medical improvement in August 2022, it has not offered any statements of
undisputed fact addressing whether Employee has reached maximum medical
improvement for all injuries that arose primarily from Employee’s work accident, and it
did not include any references to the record of any such statements as required by Rule 56.
As the Tennessee Supreme Court’s Special Workers’ Compensation Appeals Panel has
explained, a determination of permanent medical impairment cannot occur until after the
employee has reached maximum medical improvement. See, e.g., Sanders v. Lodgenet
Interactive Corp., No. M2011-00725-WC-R3-WC, 2012 Tenn. LEXIS 64, at *8 (Tenn.
Workers’ Comp. Panel Feb. 10, 2012). Thus, we conclude that in cases where an employer
files a dispositive motion based on the asserted lack of permanent medical impairment, part
of the employer’s burden of production at the summary judgment stage is to establish,
through specific references to the record, that the employee has been placed at maximum
medical improvement for every condition that arose primarily out of the work accident.
Employer has not met that burden of production in the present case.
In short, Employer failed to meet its initial burden of production at the summary
judgment stage in accordance with Rule 56. First, it did not file an amended or revised
statement of undisputed material facts following Dr. Smith’s deposition. Second, it has
not established, through specific references to the record, that Employee has reached
maximum medical improvement for every condition that arose primarily from the work
injury. As a result, the burden never shifted to Employee to establish disputed issues of
material fact. Therefore, we conclude the trial court did not err in denying Employer’s
motion for partial summary judgment.
Conclusion
For the reasons stated above, we affirm the trial court’s order and remand the case.
Costs on appeal are taxed to Employer.
8
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Craig Cable ) Docket No. 2021-07-0312
)
v. ) State File No. 20542-2021
)
Conagra Foods Packaged )
Foods Co., Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Thomas L. Wyatt, 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 1st day
of November, 2024.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Allen Callison X allen.callison@mgclaw.com
Craig Cable X craigcable39@gmail.com
Thomas L. Wyatt, 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