Opinion

Lagel. Imad v. Elwood Staffing Services, LLC

  • 2018 TN WC 185
Court
Tennessee Court of Workers' Compensation Claims
Filed
Nov 20, 2018
Status
Published
On the bench
Joshua Davis Baker
Cited by
0 cases
Authority
More cited than 12.5%

The opinion

FILED

Nov 20, 2018

10:54 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

IMAD LAGEL, ) Docket No. 2018-06-0130

)

Employee, )

v. )

)

ELWOOD STAFFING SERVICES, LLC, ) State File No. 54870-2016

)

Employer, )

And )

)

ZURICH AMERICAN INS. CO., ) Judge Joshua Davis Baker

Carrier. )

COMPENSATION HEARING ORDER GRANTING

MOTION FOR SUMMARY JUDGMENT

This case came before the Court on November 19, 2018, for a hearing of Elwood

Staffing’s motion for summary judgment. Imad Lagel did not respond to the motion.

The Court grants Elwood’s motion and dismisses this claim with prejudice.

Procedural History and Material Facts

The Court previously convened an expedited hearing and issued an order denying

Mr. Lagel’s request for additoinal medical benefits. Elwood’s motion for summary

judgment followed. As Mr. Lagel filed no response to the motion, the Court’s factual

summary comes entirely from Elwood’s statement of undisputed material facts.

Mr. Lagel worked as a temporary employee for Elwood Staffing. On July 19,

2016, he developed right foot pain and swelling while stacking boxes onto pallets.

Elwood authorized treatment and, after an emergency-room visit, Mr. Lagel chose U.S.

Healthworks from a panel of physicians. There, Dr. Harold V. Nevels diagnosed a right

ankle sprain but discharged him to full duty work on July 20, 2016. On July 23, Dr.

Nevels placed him at maximum medical improvement (MMI). His pain resolved but he

quit working for Elwood about a week after the date of his alleged injury.

On August 9, 2016, Mr. Lagel returned to the emergency room when his pain

reemerged. The ER physician diagnosed him with gout, and his symptoms calmed

somewhat after this second ER visit.

Then, in 2017, Mr. Lagel again began experiencing foot pain and went on his own

to Vanderbilt University Medical Center. Mr. Lagel then filed a Petition for Benefit

Determination and the adjuster agreed to authorize a follow-up visit with Dr. Nevels.

At the follow-up, Dr. Nevels determined Mr. Lagel’s symptoms were unrelated to

his July 19, 2016, work-related injury. Instead, Dr. Nevels determined his foot and ankle

pain resulted from osteoarthritic changes.

Law and Analysis

Tennessee Rule of Civil Procedure 56.04 states 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, Elwood must either submit

affirmative evidence that negates an essential element of Mr. Lagel’s claim or

demonstrate that his evidence is insufficient to establish an essential element of his claim.

Tenn. Code Ann. § 20-16-101 (2017); see also Rye v. Women’s Care Ctr. of Memphis,

MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Elwood carries this burden, then Mr.

Lagel “may not rest upon the mere allegations or denials of [his] pleading” but must

respond by producing facts showing a genuine issue for trial. Id.; Tenn. R. Civ. P. 56.06.

The Court holds that Elwood met its burden of demonstrating Mr. Lagel cannot establish

an essential elements of his case—the causal relationship between is workplace injury

and his need for medical treatment.

Mr. Lagel failed to respond to the motion. While his failure to respond does not

mandate entry of summary judgment, it does prevent him from disputing any of the facts

asserted in Elwood’s statement of material facts. See United Serv’s 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.”). Additionally, although Mr. Lagel

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). Accordingly, because he failed to respond to the motion, the

Court accepts the facts provided by Elwood: chiefly that Dr. Nevels found no causal

relationship between his workplace accident and his ongoing need for medical treatment

for an unrelated condition.

2

The central focus of Elwood’s motion is that Mr. Lagel cannot prove his need for

additional medical treatment arose from his January 19, 2016 workplace accident due to a

lack of medical proof. See Wheetley v. State, No. M2013-01707-WC-R3-WC, 2014

Tenn. LEXIS 476, at *5 (Tenn. Workers’ Comp. Panel June 25, 2014) (“In all but the

most simple and routine cases, an employee must prove the causal relationship between

an injury and a workplace accident through expert medical proof.”). As the nonmoving

party, Mr. Lagel must “demonstrate the existence of specific facts in the record which

could lead a rational trier of fact to find in favor of the nonmoving party.” Rye, at 265.

“The focus is on the evidence the nonmoving party comes forward with at the summary

judgment stage, not on hypothetical evidence that theoretically could be adduced . . . at a

future trial.” Id. (Emphasis added.)

All the evidence supports the finding that Mr. Lagel’s need for medical treatment

stemmed from either his preexisting gout or an osteoarthritic condition unrelated to his

work for Elwood. Because Mr. Lagel failed to respond with any expert proof to support a

causal connection between his workplace injury and his current need for medical

treatment, he failed to carry this burden.

IT IS, THEREFORE, ORDERED AS FOLLOWS:

1. The Court grants Elwood’s motion for summary judgment and dismisses Mr.

Lagel’s claim with prejudice to its refiling.

2. Absent an appeal to the Appeals Board, this order shall become final in thirty

days.

3. The Court assesses the $150.00 filing fee against Elwood under Tennessee

Compilation Rules and Regulations 0800-02-21-.07, for which execution may

issue as necessary.

4. Elwood shall pay the filing fee within five business days of the order becoming

final.

5. Elwood shall file form SD-2 with the clerk, via email at wc.courtcleerk@tn.gov,

within ten business days of this order becoming final.

IT IS SO ORDERED.

ENTERED ON NOVEMBER 20, 2018.

3

_____________________________________

Joshua Davis Baker, Judge

Court of Workers’ Compensation Claims

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing was sent to the following

recipients by the following methods of service on November 20, 2018.

Name Certified Fax Email Service sent to:

Mail

Imad Lagel, X X 5756 Mount View Rd.

Self-represented Antioch, TN 37013

Employee Lg_imad@hotmail.com

David Deming, X ddeming@manierherod.com

Employer’s Attorney

____________________________________

Penny Shrum, Clerk of Court

Court of Workers’ Compensation Claims

WC.CourtClerk@tn.gov

4

II

I 'I

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 ofthe 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 lndigency 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.

II I.

' I

Tennessee Bureau of Workers' Compensation

220 French Landing Drive, 1-B

Nashville, TN 37243-1002

800-332-2667

AFFIDAVIT OF INDIGENCY

I, , having been duly sworn according to law, make oath that

because of my poverty, I 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. I am 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. I 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 Camp.$ per month beginning

Other $ per month beginning

LB-1108 (REV 11/15) RDA 11082

9. My expenses are: ! ~ li

I

'

Rent/House Payment $ per month Med icai/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 $ _ _ _ _ _ per 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

I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete

and that I am financially unable to pay the costs of this appeal.

APPELLANT

Sworn and subscribed before me, a notary public, this

____ dayof _____________________ , 20_ __

NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ _ __

LB-1108 (REV 11/15) RDA 11082

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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