The opinion
FILED
Sep 17, 2018
01:13 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Marcus Cosey, ) Docket No.: 2017-01-0053
Employee, )
V. )
Jarden Corporation, ) State File No.: 58146-2016
Employer, )
And )
American Zurich Insurance, ) Judge Audrey A. Headrick
Carrier. )
)
COMPENSATION HEARING ORDER
GRANTING MOTION FOR SUMMARY JUDGMENT
This matter came before the Court on September 13, 2018, for hearing on the
Motion for Summary Judgment filed by Jarden Corporation (J arden).
Procedural History
The Court summarizes the factual background to this motion as follows. Mr.
Cosey sustained a crush injury to his left middle and ring fingers on July 3, 2016, while
performing his job at Jarden. Dr. Jason Rehm, the authorized treating physician, testified
by Form C-32 Standard Form Medical Report (Form C-32) that Mr. Cosey’s employment
primarily caused his need for treatment. Jarden accommodated his restrictions until it
terminated him for cause. Dr. Rehm placed Mr. Cosey at maximum medical
improvement (MMI) on November 28 and assigned a zero-percent impairment rating
with no permanent restrictions. He also recommended no further medical treatment.
Mr. Cosey filed a Petition for Benefit Determination (PBD) on January 26, 2017.
Jarden later filed a Motion to Dismiss for Failure to Prosecute on August 9. The Court
' The Court did not conduct an in-person evidentiary hearing in this case. Instead, the Court gleaned the
facts from Jarden’s statement of undisputed facts, pleadings, and exhibits.
|
granted the motion on October 5 and dismissed Mr. Cosey’s claim without prejudice on
other grounds.”
Mr. Cosey refiled a PBD, and the Court entered a Scheduling Hearing Order
setting the deadline for completion of medical proof on or before September 10. In the
scheduling order, the Court instructed Mr. Cosey that the burden is on him to obtain
sufficient medical proof. It stated that medical proof can be obtained by deposition or use
of the Form C-32. The Court also encouraged Mr. Cosey to contact the Ombudsman
Program regarding the Court’s procedural rules.
Jarden filed this summary judgment motion on August 13 along with a statement
of undisputed facts, a memorandum of law, affidavits of Veatrice Storey and Rick Wiehe,
Dr. Rehm’s Form C-32, and exhibits. In response, Mr. Cosey filed correspondence with
no supporting affidavits. He requested that the Court strike Dr. Rehm’s statements from
the record. As of the summary judgment hearing, Mr. Cosey failed to obtain any medical
proof.
Jarden argued the undisputed facts negate essential elements of Mr. Cosey’s claim.
Specifically, Jarden argued he failed to meet his burden of proving entitlement to
medical, temporary disability, or permanent disability benefits. Jarden also argued
summary judgment is appropriate because Mr. Cosey failed to respond to its motion as
required by Rule 56 and failed to file any sworn affidavits or depositions.
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, Jarden must either: (1) submit
affirmative evidence that negates an essential element of Mr. Cosey’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,
A77 S.W.3d 235, 264 (Tenn. 2015). If Jarden carries this burden, then Mr. Cosey “may
not rest upon the mere allegations or denials of [his] pleading” but must respond by
producing facts showing a genuine issue for trial. Jd.; Tenn. R. Civ. P. 56.06. In other
words, Mr. Cosey’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.
Cosey 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
Jarden met its burden of negating an essential element of Mr. Cosey’s claim for medical,
temporary disability, and permanent disability benefits.
* Mr. Cosey failed to comply with an Order compelling discovery.
2
Since Jarden met its burden, the Court must consider whether Mr. Cosey produced
facts showing a genuine issue for trial. He failed to respond to the motion as required by
Rule 56. Although Mr. Cosey filed a letter requesting that the Court strike Dr. Rehm’s
statements from the record, he filed no 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. Cosey 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
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. Here, Mr. Cosey failed to produce any medical proof regarding proof of permanent
impairment, entitlement to temporary disability benefits, or the need for further treatment.
Accordingly, the Court accepts the facts provided by Jarden and holds that Mr. Cosey
failed to present facts sufficient to establish a genuine issue for trial.
The Court notes Mr. Cosey had ample time to obtain evidence essential to support
his claim since the Court dismissed his initial PBD without prejudice. Additionally, the
Court instructed him to consult with the Ombudsman Program and the Court’s website
and urged him to become familiar with the procedural and evidentiary rules of the Court.
Despite the Court’s urging, Mr. Cosey presented no defense at the motion hearing other
than providing an oral summary of the letter he filed seeking to have the Court strike Dr.
Rehm’s statements from the record. Mr. Cosey’s statements during oral argument and
correspondence 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.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. The Court grants Jarden’s motion for summary judgment and dismisses Mr.
Cosey’s claim with prejudice to its refiling.
2. Absent an appeal, this order shall become final in thirty days.
3. The Court assesses the $150.00 filing fee against Jarden under Tennessee
Compilation Rules and Regulations 0800-02-21-.07, for which execution may
issue as necessary.
4. Jarden shall pay the filing fee within five business days of the order becoming
final.
5. Jarden shall file form SD-1 within ten business days of this order becoming final.
It is so ORDERED.
ENTERED September 17, 2018.
( Loves iN Ih a tCOX
Audrey A. Headrick
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 17, 2018.
Name Certified | First | Via | Service sent to:
Mail Class | Email
Marcus Cosey, xX X | 5828 Pinelake Drive
Employee . Harrison, TN 37341
macolicious30@gmail.com
marcuscosey@gmail.com
Catheryne Grant, X | catherynelgrant@feeneymurray.com
Victoria Dutschmann, victoriaedutschmann@feeneymurray.com
Employer Attorneys
HeamySiduar wy pumrianurel)
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 fiffeen 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, I-B
Nashville, TN 37243-1002
AFFIDAVIT OF INDIGENCY
800-332-2667
, 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:
3. Telephone Number:
5. Names and Ages of All Dependents:
6. | am employed by:
2, Address:
4, Date of Birth:
Relationship:
Relationship:
Relationship:
Relationship:
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 $
SS $
Retirement $
Disability $
Unemployment $
Worker's Comp.$
Other $
LB-1108 (REV 11/J5)
per month
per month
per month
per month
per month
per month
per month
beginning
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RDA 11082
9. My expenses are:
Rent/House Payment $
Groceries $
Electricity
Water
Gas
Car
$
$
$
Transportation $
$
Other $
10. Assets:
Automobile
Checking/Savings Acct.
House
Other
11. My debts are:
Amount Owed
$
$
$
permonth Medical/Dental $ per month
per month Telephone 3... per month
per month School Supplies$_ sper month
per month Clothing $ per month
per month Child Care Bn per month
per month Child Support $ ____ per month
per month
per month (describe: }
(FMV)
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Describe:
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