The opinion
FILED
Sep 04, 2018
03:01 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
David Ballard, ) Docket No.: 2016-01-0186
Employee, )
V. )
Brenntag Mid-South, Inc., ) State File No.: 95768-2015
Employer, )
And , )
XL Insurance America, Inc., ) Judge Audrey A. Headrick
Carrier. )
)
COMPENSATION HEARING ORDER
GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
This matter came before the Court on August 16, 2018, for hearing on the Motion
for Partial Summary Judgment filed by Brenntag Mid-South, Inc. (Brenntag). '
Procedural History
This Court approved a settlement of Mr. Ballard’s workers’ compensation claim in
November 2017. Later, Mr. Ballard filed a Petition for Benefit Determination for
increased benefits. Brenntag filed the present motion for partial summary judgment
asserting that as a matter of law he is not entitled to increased benefits. The Court
summarizes the factual background to this motion as follows.
Mr. Ballard worked as a district manager for Brenntag from April 15, 1996, until
November 16, 2015, earning approximately $80,000 per year. Mr. Ballard sustained a
work injury on October 27. Before his injury, Mr. Ballard simultaneously worked as an
operations manager for DUDA Energy, LLC (DUDA), a customer and/or supplier for
Brenntag. His employment with DUDA began on August 3. Mr. Ballard admitted he did
not disclose his dual employment to Brenntag until after his work injury. During the
three months Mr. Ballard worked for DUDA, he earned approximately $27,000. On
' The Court did not conduct an in-person evidentiary hearing in this case. Instead, the Court gleaned the
facts from Brenntag’s statement of undisputed facts, pleadings, and exhibits.
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November 4, Mr. Ballard signed an Acknowledgement for Termination of Employment
with DUDA.”
Brenntag terminated Mr. Ballard on November 16 after management discovered
his dual employment. It stated the dual employment violated its Code of Business
Conduct and Ethics (COC) and Rules of Conduct.
During Mr. Ballard’s employment, Brenntag maintained both an Employee
Handbook and the COC. He signed an Acknowledgement regarding Brenntag’s COC on
January 29, 2014.
Brenntag’s COC specifically addresses conflicts of interest. The section on conflicts
of interest states: “Conflicts of interest or the mere appearance of such a conflict must be
avoided. Conflicts of interest arise if employees pursue personal activities or interests to
the disadvantage of Brenntag’s interests.” The COC further provides that “[e]mployees
may not accept employment with or provide services to companies competing or doing
business with Brenntag or engage in any other kind of competing work or activity.”
Brenntag’s COC also states that no employees “with confidential information
about Brenntag, its suppliers, customers or other business partners may disclose such
information to any third party or use such information for his or her personal benefit
while employed with Brenntag.” This disclosure is only permissible under certain
circumstances: if disclosure is made with a valid and enforceable confidentiality
agreement; with Brenntag’s prior written approval; with prior written approval of a third-
party; or, when disclosure is mandated by law and prior notice is given, if possible, to any
affected third-party.
Brenntag filed this partial summary judgment motion on May 30 along with a
statement of undisputed facts, a memorandum of law, the Affidavit of Linda Crouse, and
exhibits. Mr. Ballard filed an Opposition to Defendant’s Motion for Partial Summary
Judgment with no supporting affidavits. This Court entered an order on July 5 continuing
the motion hearing “to permit affidavits to be obtained or depositions to be taken or
discovery to be had.” T.R.C.P. 56.07.
Brenntag argued Mr. Ballard is not entitled to additional increased permanent
partial disability benefits under Tennessee Code Annotated section 50-6-207(3)(D)(i1)
(2017) due to his termination for misconduct. It also argued that he would still be
employed at Brenntag but for his termination due to his dual employment with a
* The Acknowledgement indicates Mr. Duda restructured his company on October 30 and eliminated the
operations manager position.
* Despite the continuance, Mr. Ballard opted not to obtain opposing affidavits. At the motion hearing,
Mr. Ballard confirmed he did not intend to file any other documents.
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competitor. Further, it argued summary judgment is appropriate since Mr. Ballard failed
to file any sworn affidavits or depositions.
Mr. Ballard argued Brenntag wrongfully terminated him. He made several
arguments regarding Brenntag’s handbook and COC, which he asserted did not prevent
him from working a second job. Mr. Ballard argued Brenntag treated him differently
from other employees with alleged conflicts of interest. Further, he argued Brenntag
made misleading statements in its pleadings.
Law and Analysis
Under Tennessee Rule of Civil Procedure 56.04, summary judgment is appropriate
if there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. To meet this standard, Brenntag must either: (1) submit
affirmative evidence that negates an essential element of Mr. Ballard’s claim, or (2)
demonstrate that his evidence is insufficient to establish an essential element of his claim.
Tenn. Code Ann. § 20-16-101; see also Rye v. Women’s Care Ctr. of Memphis, MPLLC,
477 §.W.3d 235, 264 (Tenn. 2015). If Brenntag carries this burden, then Mr. Ballard
“may not rest upon the mere allegations or denials of [his] pleading” but must respond by
producing facts showing a genuine issue for trial. /d.; Tenn. R. Civ. P. 56.06. In other
words, Mr. Ballard’s response “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Payne v. D & D Elec., 2017 Tenn. LEXIS
215, at *8-9 (Tenn. 2017). In reaching its decision, the Court must focus on evidence Mr.
Ballard presented at the summary judgment stage, “not on hypothetical evidence that
theoretically could be adduced . . . at a future trial.” Rye at 265. The Court holds that
Brenntag met its burden of demonstrating Mr. Ballard cannot establish an essential
element of his case—that he is entitled to increased disability benefits.
Since Brenntag met its burden, the Court must consider whether Mr. Ballard
produced facts showing a genuine issue for trial. He failed to respond to the motion as
required by Rule 56. Although Mr. Ballard filed an Opposition to Defendant’s Motion
for Partial Summary Judgment with exhibits, he failed to file any sworn affidavits and/or
depositions showing a genuine issue for trial. While his failure to respond does not
mandate entry of summary judgment, it does prevent him from disputing any of the facts
asserted in the statement of material facts. See United Serv. Inds., Inc. v. Sloan, 1988
Tenn. App. LEXIS 592, *4 (Tenn. Ct. App. Sept. 28, 1988) (“An adverse party’s failure
to respond to a motion for summary judgment does not relieve the moving party of the
burden of establishing an entitlement to judgment as a matter of law; rather, an absence
of response only precludes factual disputes.”).
Although Mr. Ballard represents himself in this claim, he still “must comply with
the same standards to which lawyers must adhere.” Burnette v. K-Mart Corp., 2015 TN
Wrk. Comp. App. Bd. LEXIS 2, at *6 (Jan. 20, 2015). Further, courts must “be mindful
of the boundary between fairness to a pro se litigant and unfairness to the pro se litigant’s
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adversary. Thus, the courts must not excuse pro se litigants from complying with the
same substantive and procedural rules that represented parties are expected to observe.”
Id. While Mr. Ballard claimed he had “supporting documentation” to demonstrate
Brenntag terminated without proper cause, he presented nothing to support this assertion.
Accordingly, the Court accepts the facts provided by Brenntag and holds that Mr. Ballard
failed to present facts sufficient to establish a genuine issue for trial.
The Court notes it provided Mr. Ballard with additional time to obtain evidence
essential to justify his opposition. It instructed him about his right to hire an attorney and
suggested that he consult with the Ombudsman Program. The Court also urged Mr.
Ballard to become familiar with the procedural and evidentiary rules of the Court.
However, at the motion hearing, he stated he did not intend to submit any affidavits
unless he prevailed. Further, Mr. Ballard’s statements made during oral argument and
exhibits filed without supporting affidavits are insufficient to establish a factual dispute.
Because he failed to produce facts showing a genuine issue of material fact for trial, he
failed to carry his burden. Accordingly, the Court grants Brenntag’s Motion.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. The Court grants Brenntag’s motion for partial summary judgment and dismisses
Mr. Ballard’s claim for increased benefits with prejudice to its refiling. This
ruling does not end his entitlement to ongoing medical benefits for the work
injury.
2. Absent an appeal, this order shall become final in thirty days.
3. The Court assesses the $150.00 filing fee against Brenntag under Tennessee
Compilation Rules and Regulations 0800-02-21-.07, for which execution may
issue as necessary.
4. Brenntag shall pay the filing fee within five business days of the order becoming
final.
5. Brenntag shall file form SD-1 within ten business days of this order becoming
final.
It is so ORDERED.
ENTERED September 4, 2018.
Coad roncdoee Ny. Nil
Audrey A. Headriek
Workers’ Compensation Judge
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 September 4, 2018.
Name Certified | First | Via | Service sent to:
Mail Class | Email
David F. Ballard, x X | 224 Hickory Ridge Trail
Employee Ringgold, GA 30736
DavidBallard@catt.com
Gerry Siciliano, X | gms@lutheranderson.com
Employer’s Attorney
by Wye i wip tayn0r}O)
PENNY SHRUM, COURT CLERK’
we.courtclerk@tn.gov
Compensation Hearing Order Right to Appeal:
If you disagree with this Compensation Hearing Order, you may appeal to the Workers’
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’
Compensation Appeals Board, you must:
1. Complete the enclosed form entitled: “Compensation Hearing Notice of Appeal,” and file
the form with the Clerk of the Court of Workers’ Compensation Claims within thirty
calendar days of the date the compensation hearing order was filed. When filing the
Notice of Appeal, you must serve a copy upon 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 of 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 bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court
reporter must prepare a transcript and file it with the court clerk within fifteen calendar
days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
evidence prepared jointly by both parties within fifteen calendar days of the filing of the
Notice of Appeal. The statement of the evidence must convey a complete and accurate
account of the hearing. The Workers’ Compensation Judge must approve the statement
of the evidence before the record is submitted to the Appeals Board. If the Appeals
Board is called upon to review testimony or other proof concerning factual matters, the
absence of a transcript or statement of the evidence can be a significant obstacle to
meaningful appellate review.
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. The appealing
party has fifteen calendar days after the date of that notice to submit a brief to the
Appeals Board. See the Practices and Procedures of the Workers’ Compensation
Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann. § 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, |-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
l, _ having been duly sworn according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name: 2. Address
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of All Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. lam employed by:
My employer’s address is:
My employer’s phone number is
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning _
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are:
Rent/House Payment $ permonth Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $_ per month
Transportation $ per month Child Support $ sper month
Car $ per month
Other $ per month (describe }
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $
House $ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that | am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082