The opinion
FILED
Nov 25, 2024
11:08 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Lella Yvonne Graham ) Docket No. 2021-01-0857
)
v. ) State File No. 19009-2021
)
CHI Memorial Healthcare System, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Thomas L. Wyatt, Judge )
Affirmed and Certified as Final
In this compensation appeal, the employee asserts the trial court erred in denying her
motion to continue the hearing of the employer’s motion for summary judgment and in
granting summary judgment to the employer. The employee alleged a compensable
injury to her lungs resulting from COVID-19, which she claims she contracted as a result
of her exposure to infected coworkers and patients at the employer’s facility. The
employer denied the employee’s claim, asserting there was no evidence her COVID-19
infection arose primarily out of and in the course and scope of her employment. The
employer filed a motion for summary judgment and set a hearing. The employee then
filed a motion to continue the scheduled hearing, which the court denied. Following a
telephonic hearing, the trial court entered an order granting summary judgment to the
employer and dismissing the employee’s case with prejudice. Upon careful consideration
of the record, we affirm the trial court’s order and certify it as final.
Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Meredith B. Weaver joined.
Jimmy W. Bilbo, Cleveland, Tennessee, for the employee-appellant, Lella Yvonne
Graham
C. Douglas Dooley, Chattanooga, Tennessee, for the employer-appellee, CHI Memorial
Healthcare System
1
Factual and Procedural Background
Lella Yvonne Graham (“Employee”), a practice manager at CHI Memorial
Healthcare System’s (“Employer”) Cleveland, Tennessee facility, alleges that she
contracted COVID-19 in the course of performing her job duties in December 2020. 1
Specifically, Employee contends she became sick due to regular contact with coworkers
and patients infected with COVID-19 at Employer’s facility. Employee filed a Petition
for Benefit Determination (“PBD”) on December 13, 2021, in which she asserted that she
suffered an injury to her lungs due to contracting COVID-19 in mid-December 2020. In
the PBD, Employee noted that she reported the incident to Employer on December 13,
2020, and saw a nurse practitioner at CHI Memorial Convenient Care later that same day.
In the medical note for that encounter, the nurse practitioner noted that Employee’s tests
for Flu B and COVID-19 were both positive. Employee was treated conservatively and
released. On December 17, 2020, Employee was seen in the emergency department of
CHI Memorial Hospital for complaints of shortness of breath, headache, and “[COVID-
19] type symptoms . . . with positive results for [COVID-19].” Employee was admitted
and diagnosed with hypoxia and COVID-19. She was discharged on January 2, 2021.
Thereafter, Employee had a telehealth appointment with Madeline Grotefendt,
FNP-C, at CHI Memorial Primary Care Associates – Cleveland (“CMPCA-C”). The
medical note for that virtual visit states Employee “was admitted to CHI Memorial
Hospital with viral pneumonia due to COVID-19, acute respiratory failure with hypoxia,
and influenza.” The note also indicated that Employee needed post-hospital care,
including physical therapy and pulmonary rehabilitation, for which she received a
referral. Ms. Grotefendt continued conservative treatment and instructed Employee to
follow up in one month. Employee returned on February 8, 2021, with complaints of
“significant weakness.” Ms. Grotefendt noted that Employee appeared “fatigued” and
still required supplemental oxygen therapy.
During her subsequent deposition, Employee recounted that Ms. Grotefendt
imposed restrictions limiting how frequently and how long she could work once she was
able to return to work in some capacity. The work release signed by Ms. Grotefendt
provided Employee could “[r]eturn to work for 4 hours a day on Monday, Wednesday,
and Friday beginning on 4-5-21. If able to tolerate this work schedule[,] then [Employee]
may work 4 hours daily Monday through Fridays beginning 4/12/21[.]” Employee’s
condition failed to improve, and she returned to CMPCA-C on eleven subsequent
occasions between March 2021 and November 2023. Ultimately, Ms. Grotefendt
referred Employee to Dr. Michael T. Czarnecki, a pulmonologist affiliated with
Pulmonary & Critical Care Consultants of Chattanooga, for further evaluation.
1
In her petition, Employee asserts she was tested for COVID-19 on December 13, 2020, and was
diagnosed on December 14, 2020. Employee then filed an amended PBD on December 14, 2021,
asserting a date of injury of December 12, 2020.
2
Dr. Czarnecki performed a medical examination of Employee at Employer’s
request on April 3, 2023. In the medical report electronically signed on April 4, Dr.
Czarnecki acknowledged that Employee “had a broad community relative risk exposure”
to COVID-19 and post COVID-19 complications, but he opined that the correlation of
her exposure due to patient care does not necessarily translate to causation of those
conditions. He further stated that her “absolute risk is the same as anyone else interacting
on a day-to-day basis at work or outside of work.” Dr. Czarnacki summed up his opinion
by stating that it was not possible to draw a conclusion regarding the connection between
Employee’s work and her contracting COVID-19 and that, therefore, Employee was not
entitled to any permanent impairment as a result of her alleged work exposure to COVID-
19.
Additionally, Dr. Czarnecki opined that Employee was at maximum medical
improvement but expressed his concern that Employee had not undergone pulmonary
function testing, which would be essential to determining the degree of residual
pulmonary impairment. Finally, Dr. Czarnecki assessed an anatomical impairment rating
of forty percent for “[COVID-19] related organ dysfunction impairment.”
The parties deposed Dr. Czarnecki on May 21, 2024. In response to a question
from counsel regarding whether it was his opinion that the assessment of a zero-percent
impairment “was a result of [Employee’s] employment,” Dr. Czarnecki stated:
A. That is correct in the first component of causality. It was hard to
determine, you know, like I said with the community pulmonary
[COVID-19]-related pandemic. There’s no way to determine that.
Q. And is that your opinion within a reasonable degree of medical
certainty?
A. Yes.
Q. Within the concept of broad community relative risk exposure, is it
impossible to determine when or how there was a [COVID-19]
exposure and subsequent contraction of [COVID-19]?
A. Well, that’s the million dollar question. Yes, it is.
On cross-examination, Dr. Czarnecki was asked if there is “a difference between
an impairment rating and [a] disability.” Dr. Czarnecki responded in the affirmative,
stating it “depends on what the disability is for and who did the disability. . . . I believe
there’s a difference between disability and impairment from my perspective. A
pulmonary impairment is different from a disability.” Finally, counsel for Employee
asked Dr. Czarnecki whether “it’s more likely than not that [Employee] contracted
3
[COVID-19] at work,” to which Dr. Czarnecki responded that making such an
assessment required an examination of multiple factors. He further stated:
[E]ven if you were hermetically sealed, it’s nearly impossible to avoid
exposure from infectious diseases, right? There’s going to be some
airborne-related exposure just living in a house even if you never left your
house. There has to be – the standard of perfection has to be so high that
you just can’t – even if you did achieve it, you’re still going to have
exposure. So[,] I don’t think you can make the argument that the only
place the exposure occurred in my opinion was at the workplace
exclusively. And that’s what we documented in there in terms of the work-
related exposure is zero percent.
....
So[,] I think we would stand by our report where we say a rating of zero
percent would be given to [Employee’s] employment as contributing to the
cause of her injury in our opinion. . . . Even direct patient care does not
necessarily imply causation. The absolute risk is the same as anyone else
interacting on a day-to-day basis at work or outside of work and, you know,
including never leaving the house. So[,] I don’t think – you know, I would
stand by what I document there.
Employee later filed another PBD in July 2022, which indicated that Employee
was released to work on May 3, 2021, and had been assigned an impairment rating of
70% to the body as a whole by Dr. Jeffrey Jump, a general practitioner. In July 2023, a
mediator issued a dispute certification notice that certified compensability, medical
benefits, and temporary and permanent disability benefits as the issues in dispute. It also
identified the “[n]ature and extent of [the] injury” as the defense raised by Employer.
Thereafter, Employer filed four motions with the trial court: (1) a motion for
summary judgment; (2) a motion to dismiss Employee’s original and amended PBDs,
which was later withdrawn; (3) a motion in limine to exclude the lay testimony of
Employee as it relates to medical causation; and (4) a second motion in limine to exclude
the Form C-30A completed by Dr. Jump. The trial court heard both motions in limine
telephonically, and, two days later, entered an order granting Employer’s motion to
exclude Employee’s lay testimony regarding medical causation and “strik[ing] the [Form
C-30A] signed by Dr. Jump as inadmissible hearsay.” 2 Contemporaneous with its June
26 order resolving Employer’s motions in limine, the trial court issued an order setting
2
In its order, the trial court stated Employee “did not timely respond to the motions in limine” and “[t]he
court file in this case did not contain a response filed by [Employee] at the time of the entry of this order.”
Further, unlike a Standard Form Medical Report (Form C-32), there is no statute or regulation rendering a
Form C-30A admissible at the summary judgment stage.
4
Employer’s motion for summary judgment for a telephonic hearing on July 16, 2024. 3 In
the interim, Employee filed a motion for a continuance of the summary judgment
hearing, which Employer opposed. In that motion, Employee contended her counsel paid
the fee for Dr. Jump to complete a Form C-32 in February 2022, but that Dr. Jump did
not notify counsel he would not complete the Form C-32 until May 2024. Employee
submitted that she had made multiple attempts to find an expert since that time and was
unsuccessful, but finally secured an appointment with a pulmonologist on July 11, 2024.
Employer opposed that motion on the grounds that the scheduling order had previously
been modified and Employee had ample time to obtain her medical proof. The trial court
denied the motion for continuance in an order dated July 12, 2024. That order was not
appealed.
At the July 16 hearing on Employer’s motion for summary judgment, the trial
court considered the expert opinion of Dr. Czarnecki and reviewed the medical evidence
introduced by Employer. In the compensation order issued on July 23, 2024, the court
noted Dr. Czarnecki was board-certified in pulmonology, internal, and critical-care
medicine and had examined Employee once to date. In accrediting Dr. Czarnecki’s
causation opinion finding that Employee’s “work in a clinic treating [COVID-19]
patients had ‘zero percent’ causal relationship with her own infection,” and given that
Employee “offered no expert testimony to dispute this opinion,” the trial court
determined that Employer had “negated the essential element of [medical] causation”
and, thus, was entitled to summary judgment as a matter of law. Continuing further, the
court observed that Employee’s “sworn statement that she contracted the virus while
working in a facility treating patients with [COVID-19] does not, standing alone, place
the pulmonologist’s opinion in dispute.” Accordingly, the trial court entered judgment in
favor of Employer and dismissed Employee’s claim with prejudice. Employee 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. Moreover, a trial court has
broad discretion to control the pace of litigation and set hearings to address pre-trial
motions. Valladares v. Transco Products, Inc., Nos. 2015-01-0117 & -0118, 2016 TN
Wrk. Comp. App. Bd. LEXIS 31, at *26 (Tenn. Workers’ Comp. App. Bd. July 27, 2016)
(“a trial court has the necessary discretion to control the pace of litigation through the use
of case supervision and docket management”); see also Smith v. Smith, No. E2017-
3
Defendant’s motion did not include a hearing date on the face of it, as required by Tenn. Comp. R. and
Regs. 0800-02-21-.18(c).
5
01295-COA-R3-CV, 2019 Tenn. App. LEXIS 59, at *20 (Tenn. Ct. App. Jan. 31, 2019)
(“trial courts have broad discretion to control their dockets”). We are also 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
In her notice of appeal, Employee contends the trial court erred in denying her
motion for a continuance of the hearing on Employer’s motion for summary judgment.
In addition, Employee argues that the trial court erred in granting summary judgment
under circumstances where Employer failed to file a Notice of Controversy after
suspending benefits pursuant to Tennessee Code Annotated section 50-6-205(c)-(d).
Employee’s Motion for Continuance
Employee argues it was reversible error to deny her motion to continue since she
filed a Rule 72 declaration “providing facts outlining the reasons she could not present an
affidavit in opposition” to Employer’s medical expert in time. In doing so, she relies on
Rule 56.07 of the Tennessee Rules of Civil Procedure, which 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 or discovery to be had or make such other order as is just.
(Emphasis added.) In response, Employer argues the trial court did not abuse its
discretion. We conclude, however, that it is unnecessary for us to address the issue
because it was not timely appealed. The interlocutory order denying Employee’s motion
for a continuance was entered on July 12, 2024, and the issue was first raised on appeal in
the August 21, 2024 notice of appeal. Employee had seven business days, or until July
23, 2024, to appeal the court’s July 12 order, but she did not do so. Thus, we have no
jurisdiction to consider this issue. See Tenn. Comp. R. & Regs. 0800-02-22-.01(3)
(2023); see also Bates v. Command Ctr., Inc., No. 2014-06-0053, 2015 TN Wrk. Comp.
App. Bd. LEXIS 10, at *5 (Tenn. Workers’ Comp. App. Bd. Apr. 2, 2015) (“Appellate
courts treat the untimely filing of a notice of appeal in civil cases as a jurisdictional
defect, resulting in a dismissal of the appeal.”).
Summary Judgment
Next, Employee argues the trial court erred in granting summary judgment under
circumstances where Employer failed to file a Notice of Controversy after deciding to
6
suspend benefits as stated in Tennessee Code Annotated section 50-6-205(c)-(d). Thus,
she contends the issue before us is whether an employer’s purported failure to comply
with section 205(c)-(d) “precludes it from now contending that the accident and the
resulting injury to the employee were not within the coverage of workers’ compensation
statutes.” Employer asserts the trial court correctly granted its motion because, at the
summary judgment stage, “Employee admitted she had no evidence to establish medical
causation, despite having over two years to obtain such proof.”
In its order, the trial court noted that Employee’s Rule 72 declaration did not
include any reference to Employer’s failure to file notices of denial, controversy, or a
change of benefits. The court concluded Employee “presented no sworn evidence of the
alleged filing deficiencies,” noting she mentioned them “in argument in a response to
summary judgment” but did not testify about them in her sworn declaration. The court
also noted Employee cited no statutory or case law in support of her argument that
Employer’s alleged failure to file the required forms precluded Employer from prevailing
on its motion for summary judgment.
In her brief on appeal, Employee relies on Goins v. Kaiser-Roth Hosiery, Inc., 751
S.W.2d 423 (Tenn. 1988), a Supreme Court case in which the Court determined the
employer’s failure to timely file a notice of controversy precluded it from later
contending the accident and injury were not compensable. In Goins, the employee
slipped and fell on an “oily looking substance” inside the employer’s plant while on the
way to her workstation before her scheduled shift. Id. at 424. The incident was reported
immediately and accepted as compensable, and the employer provided both medical and
temporary disability benefits. Id. In fact, the Supreme Court specifically noted that the
“case was accepted by the employer as fully compensable.” Id. At no point prior to the
filing of the complaint did the employer indicate it was reversing its compensability
decision or file the appropriate administrative form as described in Tennessee Code
Annotated section 50-6-205(d) indicating a controversy in the case or a change or
termination of benefits. Id. Nevertheless, in an answer filed approximately three months
later, the employer challenged compensability, asserting as an affirmative defense that
the incident occurred before the employee had begun her shift. Id. In rejecting the
employer’s effort to deny the compensability of the claim and affirming the award of
benefits, the Tennessee Supreme Court first noted that the preponderance of the evidence
presented during trial supported the court’s compensability decision irrespective of the
employer’s failure to file a notice of controversy. Id. Second, the Court noted that the
“failure of the employer to show compliance with the statutory requirement [set out in
Tennessee Code Annotated section 50-6-205(d)] . . . precludes it from now contending
that the accident and the resulting injury to the employer were not within the coverage of
the workers’ compensation statutes.” Id.
We conclude Employee’s reliance on Goins is misplaced. First, although
Employer in the present case apparently provided certain benefits as contemplated in the
7
Workers’ Compensation Law when the claim was initially reported, Dr. Czarnecki
expressed his opinion that Employee’s condition could not be traced to her employment
within a reasonable degree of medical certainty in April 2023. Moreover, the Dispute
Certification Notice issued on July 31, 2023, which was eleven months before Employer
filed its motion for summary judgment, listed “compensability” as a disputed issue. 4
Thus, Employee cannot reasonably assert that it was unaware of Employer’s
compensability defense in a timely manner.
Second, the administrative form that existed when Goins was decided, the Notice
of Controversy, is no longer in use as of October 2020. Thus, when Employee was
diagnosed in December 2020, there was no requirement that an employer file a “notice of
controversy” form. Instead, Rule 0800-02-14-.04(8) now requires an “adjusting entity”
to electronically file a notice of full or partial denial of the claim “within fifteen (15)
calendar days of the due date of the first omitted payment.” Here, the record is silent
regarding when benefits were paid and/or when the “first omitted payment” allegedly
occurred. Thus, there is no evidence in this record that Employer failed to electronically
file a notice of full or partial denial of the claim within the required time period.
Third, we interpret the Court’s holding on this issue in Goins as a form of
estoppel. Although we acknowledge that the Court did not use that term, it explained its
rationale by clarifying that the employer’s failure to comply with statutory filing
requirements “precluded” it from relying on a compensability defense in circumstances
where it had accepted the claim as “fully compensable” even though the facts that later
formed the basis of its affirmative defense were apparent from the date of the incident.
Id. The implication of the Court’s rationale was that an employee may detrimentally rely
on the employer’s acceptance of the claim and, in the particular circumstances presented
in Goins, the employer should be estopped from later challenging compensability.
However, application of an estoppel theory is a fact-intensive determination. See, e.g.,
Nicholson v. Wal-Mart Stores, Inc., No. M1999-01137-WC-R3-CV, 2001 Tenn. LEXIS
31 (Tenn. Workers’ Comp. Panel Jan. 12, 2001) (“If the facts justify it, courts will not
hesitate to invoke the doctrine of equitable estoppel . . . . Negligent silence may work an
equitable estoppel, and acts or conduct which are calculated to mislead, and do mislead,
will work an equitable estoppel even when there is no intention to do so.”). Here, as
noted above, Dr. Czarnecki expressed his negative causation opinion in April 2023, and
the Dispute Certification Notice reflecting Employer’s compensability defense was
issued in July 2023, well before the filing of the motion for summary judgment.
Employee was aware of this defense and took steps to seek expert medical proof to
counter that defense but was unable to do so prior to the summary judgment hearing in
July 2024.
4
As a result of the passage of the 2013 Workers’ Compensation Reform Act (“Reform Act”), the Dispute
Certification Notice is now used to certify disputed issues to be presented to a trial court for resolution.
That document was not in use when Goins was decided in 1988.
8
Finally, we note that several cases decided after Goins expressly limited this
holding to the specific facts of that case. For example, in Stapleton v. Mahle, Inc., No.
03-S-01-9111-CH-108, 1992 Tenn. LEXIS 453 (Tenn. June 22, 1992), the Supreme
Court noted that its previous holding in Goins was “later limited to its ‘egregious’ facts
peculiar to that case.” Id. at *4-5 (citing Dobbs v. Liberty Mut. Ins. Co., 811 S.W.2d 75,
78 (Tenn. 1991)). The Court in Stapleton also noted that “there is no language in
[section] 50-6-205(d)(1) that can reasonably be read to preclude an employer who has
made temporary disability payment in good faith from raising a defense to liability for
permanent disability.” Id. at *5-6. Moreover, Employee has presented no statutory or
case law after the passage of the Reform Act that supports her position. Given the post-
reform changes in the language of Tennessee Code Annotated section 50-6-205(c)-(d),
the changes in Tenn. Comp. R. and Regs. 0800-02-14-.04(8), the discontinuation of the
“Notice of Controversy” form, the case law that expressly limits the holding in Goins,
and the post-reform use of the Dispute Certification Notice to certify disputed issues, we
conclude Goins does not dictate the outcome of this case.
Here, Employer presented expert medical proof from Dr. Czarnecki, a
pulmonologist, indicating that the alleged workplace exposures could not be identified
with any degree of medical certainty as the primary cause of her pulmonary condition.
Moreover, in her responses to Employer’s statement of undisputed material facts,
Employee included the following response to Employer’s seventh statement:
7. Dr. Czarnecki has examined Employee and opined that Employee’s
injury did not arise out of the course and scope of her employment
with Employer.
Response: [Employee] agrees this fact is undisputed for purposes of ruling
on this summary judgment motion only.
Thus, Employee admitted that Dr. Czarnecki examined her and opined that her
injury did not arise primarily out of and in the course and scope of her employment.
Although Employee submitted a Form C-30A from Dr. Jump, that document was deemed
inadmissible at the summary judgment stage. Further, as the court correctly noted,
Employee’s sworn statement that she contracted COVID-19 while working does not,
standing alone, raise a disputed issue of material fact in light of the pulmonologist’s
causation opinion. See Scott v. Integrity Staffing Sols., No. 2015-01-0055, 2015 TN Wrk.
Comp App. Bd. LEXIS 24, at *11 (Tenn. Workers’ Comp. App. Bd. Aug. 18, 2015)
(“[E]ven under pre-reform law, lay testimony alone was insufficient in most cases to
establish adequate evidence of medical causation.”). Accordingly, we discern no error by
the trial court.
9
Conclusion
For the foregoing reasons, we affirm the court’s order granting summary judgment
and certify it as final. Costs on appeal are taxed to Employee.
10
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Lella Yvonne Graham ) Docket No. 2021-01-0857
)
v. ) State File No. 19009-2021
)
CHI Memorial Healthcare System, 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 25th day
of November, 2024.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Jimmy W. Bilbo X jimbilbo@bilbolaw.com
C. Douglas Dooley X doug.dooley@leitnerfirm.com
mickala.lewis@leitnerfirm.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