The opinion
FILED
June 1, 2017
TN COURT OF
WORKERS’
COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION Time 4:03 PM
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
CAROLYN BEECHER ) Docket No. 2016-08-0279
Employee, )
V. )
MCKESSON CORPORATION ) State File No. 97742-2015
Employer, )
And )
)
OLD REPUBLIC INSURANCE CoO. } Judge Amber E. Luttrell
Insurance Carrier. )
)
COMPENSATION ORDER GRANTING EMPLOYER’S MOTION FOR
SUMMARY JUDGMENT
This matter came before the undersigned Workers’ Compensation Judge on May
15, 2017, upon McKesson Corporation’s Motion for Summary Judgment filed under
Tennessee Rule of Civil Procedure 56. McKesson filed a Statement of Undisputed Facts
and Memorandum of Law in support of its motion. Ms. Beecher did not file a response to
the motion.
The central legal issue is whether McKesson demonstrated to the Court either that
it negated an essential element of Ms. Beecher’s claim or that her evidence is insufficient
to establish an essential element of her claim. For the following reasons, the Court finds
McKesson has shown Ms. Beecher’s evidence is insufficient to establish an essential
element of her claim and accordingly holds it is entitled to summary judgment.
Procedural History
Ms. Beecher alleged she suffered severe pelvic organ prolapse arising out of a
work incident on November 16, 2015, when she picked up a heavy tote at work and felt a
sharp pain in her pelvic area. McKesson denied Ms. Beecher’s claim for workers’
compensation benefits, and she filed a Petition for Benefit Determination (PBD) seeking
medical and temporary disability benefits. Because the parties were unable to reach an
agreement at mediation, the Mediator issued a Dispute Certification Notice (DCN).
Following an Expedited Hearing, the Court entered an order denying benefits and holding
Ms. Beecher failed to come forward with sufficient medical evidence to satisfy her
burden of proving her condition arose primarily out of and in the course and scope of her
employment.
Specifically, the Court determined Dr. Tinker, the panel selected physician, and
Dr. Chappell, the employer’s independent medical evaluator, provided the only expert
opinions addressing medical causation, and neither physician concluded Ms. Beecher’s
work activities were the primary cause of her condition. In his deposition, Dr. Tinker
testified that pelvic organ prolapse is always multifactorial and concluded,
Based on the limited information that I had... my assessment was that,
certainly, I thought work had an important role. Was that 35 percent, 49
percent, 52 percent, 57 percent? That’s not a medical question and I don’t
know how to answer that . . . I would say that I have no way to accurately
assess a percentage.
The Court found Dr. Chappell was more decisive. He concluded, “Ms. Beecher’s
work activities or single work incident were not the primary cause of the uterine prolapse
and it is impossible to prove that work was responsible for any amount of the condition
much less responsible for causing the majority or greater than 50% of the condition.”
Absent a contrary medical opinion, the Court held Ms. Beecher could not establish her
condition arose primarily out of her employment. Ms. Beecher appealed the Expedited
Hearing Order, and the Appeals Board affirmed the Court’s decision.
The Court entered a Scheduling Order on January 9, 2017, setting the
Compensation Hearing date for June 7, as well as setting various scheduling deadlines,
including, but not limited to, an expert proof deposition deadline of April 28.
Legal Principles and Analysis
Motions for summary judgment are controlled by Tennessee Code Annotated
section 20-16-101 (2016) and the Tennessee Rules of Civil Procedure. Specifically, Rule
56.06 provides that if a motion for summary judgment is properly made and supported,
2
“an adverse party may not rest on mere allegations or denials of the adverse party’s
pleadings, but his or her response, by affidavits or as otherwise provided in [the] rule,
must set forth specific facts showing that there is a genuine issue for trial.” Moreover,
“Tilf the adverse party does not so respond, summary judgment, if appropriate, shall be
entered against the adverse party.” Payne v. D and D Elec., 2016 TN Wrk. Comp. App.
Bd. LEXIS 21, at *7-8 (May 4, 2016) (Emphasis added).
Because a summary judgment motion is potentially dispositive, the Court must
also consider Rule 4.01B of the Practices and Procedures of this Court, which provides:
If a dispositive motion is opposed, a response to the motion must be filed
and served on all parties or their counsel, on or before thirty calendar days
after the filing of the dispositive motion. The response shall be in writing
and shall state with particularity the grounds for the opposition. If no
opposition is filed, the dispositive motion will be considered unopposed.
Here, Ms. Beecher did not file a response to McKesson’s motion. Thus, this Court must
consider McKesson’s motion unopposed and must now turn to the issue of whether,
under Rule 56.06, entry of summary judgment is “appropriate.” See Tenn. R. Civ. Pro.
56.06 (2016).
In determining whether summary judgment is appropriate, the Court must apply
the following standard set forth in Mitchell v. Randstad N. Am., 2017 TN Wrk. Comp.
App. Bd. LEXIS 2, at *7 (Jan. 13, 2017):
When a party who does not bear the burden of proof at trial files a motion
for summary judgment, the party must do one of two things: (1) “[sJubmit[]
affirmative evidence that negates an essential element of the nonmoving
party’s claim” or (2) “[d]emonstrate[] to the court that the nonmoving
party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim.” Tenn. Code Ann. § 20-16-101 (2016). If the
moving party is successful in meeting this initial burden of production, the
nonmoving party must then establish that the record contains specific facts
upon which a trier of fact could base a decision in that party’s favor. See
Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 265
(Tenn. 2015). 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.
Moreover, in deciding McKesson’s Motion for Summary Judgment, the Court must
consider the facts presented on summary judgment in the light most favorable to Ms.
Beecher as required by law. See Payne, at *12.
To establish a work-related injury, Ms. Beecher must show to a reasonable degree
of medical certainty that her pelvic organ prolapse arose primarily out of and in the
course and scope of her employment. This requires a showing by a preponderance of the
evidence that her employment contributed more than fifty percent in causing the injury,
considering all causes. Shown to a reasonable degree of medical certainty means that, in
the opinion of the physician, it is more likely than not considering all causes, as opposed
to speculation or possibility. Tenn. Code Ann. §50-6-102(14). See also Payne v. D & D
Elec., 2017 Tenn. LEXIS 215, at *9 (Apr. 18, 2017).
Here, in an effort to demonstrate to the Court that Ms. Beecher’s evidence is
insufficient to establish an essential element of her claim, McKesson argued that Ms.
Beecher failed to schedule or complete the deposition of any expert and otherwise secure
expert proof to support her allegation that she sustained a work-related injury on
November 16, 2015. McKesson argued that no physician has expressed an opinion that
Ms. Beecher’s work caused fifty percent or more of her medical condition or need for
treatment. Thus, McKesson averred Ms. Beecher cannot establish that her pelvic organ
prolapse arose primarily out of and in the course and scope of employment, and summary
judgment is appropriate as a matter of law.
In Payne, the employer asserted the employee’s evidence was insufficient to
establish his claim, and the Special Workers’ Compensation Appeals Panel agreed. The
Panel concluded that Mr. Payne failed to produce sufficient evidence to support his
claim. Although he filed medical records documenting treatment he received for his left
foot, he submitted no medical evidence showing that it was more likely than not that his
employment contributed more than fifty percent to his injury. The Panel affirmed the
decision of the Workers’ Compensation Appeals Board, granting summary judgment as a
matter of law.
In the present case, the Court carefully reviewed the records submitted by Ms.
Beecher and concludes she failed to produce expert proof or testimony demonstrating that
her pelvic organ prolapse arose primarily out of and in the course and scope of her
employment at McKesson. Although Ms. Beecher did not respond to McKesson’s
Statement of Undisputed Facts, she previously filed various medical records on March
30, 2017, in response to discovery upon which she relied at the summary judgment
hearing. Based on a careful review, the Court finds they contained no medical evidence
demonstrating that it was more likely than not that her employment contributed more
than fifty percent to her injury, considering all causes. At the summary judgment stage,
she “must do more than simply show that there is some metaphysical doubt as to the
material facts.” Rye, 477 S.W.3d at 265. Therefore, the Court concludes McKesson has
demonstrated that Ms. Beecher’s evidence is insufficient to establish an essential element
of her claim.
Although this Court is fully cognizant of Ms. Beecher’s sincerely held belief that
her pelvic organ prolapse was caused by her work at McKesson, her lay opinion alone is
legally insufficient to refute Dr. Tinker’s and Dr. Chappell’s conclusions. As the Court
expressed in its Expedited Hearing Order, neither Ms. Beecher nor the Court has the
medical qualifications to revise the doctors’ medical opinions for them. As our Appeals
Board observed, “Judges are not well-suited to second guess a medical expert’s
treatment, recommendations, and or diagnoses absent some conflicting medical evidence
or some other countervailing evidence properly admitted into the record.” Scott v.
Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *8 (Aug. 18,
2015).
Accordingly, McKesson’s Motion for Summary Judgment is granted, and Ms.
Beecher’s claim is dismissed with prejudice. The costs of this cause are taxed to
McKesson pursuant to Tennessee Compilation Rules and Regulations Rule 0800-02-21-
.07 to be paid within five days of the entry of this order. In addition, McKesson shall
prepare and submit the SD-1 for this matter within ten days of the date of judgment.
IT IS SO ORDERED.
Entered this the * day of June, 2017.
JUDGE AMBER E. LUTTRELL
Court of Workers’ Compensation Claims
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on this the _1 * day of June, 2017.
Name Certified | Via Via Service sent to:
Mail Fax Email
Carolyn Beecher, xX xX 4817 Saddlehorn Cove,
Self-Represented Memphis, TN 38125;
Employee CarolynBeecherl@yahoo.com
Thomas P. Cassidy, Jr.,
Esq.,
Attorney for Employer
X | Tom.cassidy@mgelaw.com
firey ther
Penny Shrum, Court Clerk
wc.courtclerk@tn.gov