The opinion
FILED
Jan 25, 2019
03:02 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
VALDEZ VENTURA, ) Docket No. 2015-07-0194
Employee, )
V. ) State File No. 64310-2015
)
CCON METALS USA, INC., ) Judge Amber E. Luttrell
Employer. )
COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT
This matter came before the Court on January 22, 2019, on CCon Metals’ Motion
for Summary Judgment. For the following reasons, the Court holds CCon is entitled to
summary judgment.
Claim History
Mr. Ventura alleged an illness resulting from lead exposure while working for
CCon Metals. Initially, Mr. Ventura sought unauthorized treatment with his primary care
physician, Dr. Paul Schwartz. He later sought treatment from Dr. Timothy Linder, a
panel-selected physician. Dr. Linder saw Mr. Ventura twice, diagnosed epigastric
abdominal pain, and recommended he see his primary doctor for follow-up. Dr. Linder
concluded, “lead levels are normal, having stomach problems and muscle aches, feel he
needs abdomen work up and muscle work up but do not feel it is related to lead level.”
Dr. Linder completed a Form C-32 Standard Form Medical Report, which confirmed that
Mr. Ventura did not suffer an employment-related injury.
Following an Expedited Hearing, the Court entered an order denying benefits and
held that Mr. Ventura did not come forward with sufficient proof to show he is likely to
prevail at trial. Specifically, the Court held Mr. Ventura failed to show a work-related
incident, identifiable by time and place of occurrence, that caused his symptoms. The
Court further held that Mr. Ventura failed to produce any medical evidence to support his
claim. The only medical proof came from Dr. Linder, the panel-selected physician. Dr.
Linder concluded that Mr. Ventura’s lead levels were normal and he did not sustain an
employment-related illness. As the panel-selected physician, Dr. Linder’s causation
opinion is afforded a presumption of correctness that is rebuttable only by a
preponderance of the evidence.
The Court entered a Scheduling Order on August 31 setting the Compensation
Hearing, as well as various deadlines, including a medical expert proof deposition
deadline of December 28.
CCon Metals filed this motion on November 30, 2018. At the hearing on January
22, it argued that Mr. Ventura’s medical proof deadline passed and he provided no
medical evidence to support his claim. Thus, his evidence is insufficient to establish
medical causation. CCon additionally argued it negated the element of causation through
Dr. Linder’s opinion in his C-32. Accordingly, CCon contended it is entitled to summary
judgment. Mr. Ventura did not file a response as required by Rule 56.
Analysis
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.
As the moving party, CCon must do one of two things to prevail on its motion: (1)
submit affirmative evidence that negates an essential element of Mr. Ventura’s claim, or
(2) demonstrate that Mr. Ventura’s evidence is insufficient to establish an essential
element of his claim. See Tenn. Code Ann. § 20-16-101 (2018); see also Rye v. Women’s
Care Ctr. of Memphis, MPLLC, 477 8.W.3d 235, 264 (Tenn. 2015). If CCon is successful
in meeting this burden, Mr. Ventura must then establish that the record contains specific
facts upon which the Court could base a decision in his favor. Rye, at 265.
Because Mr. Ventura failed to respond to the motion, the Court finds the facts are
undisputed and turns to the issue of whether under Rule 56 summary judgment is
“appropriate.”
The Court holds CCon successfully negated the essential element of medical
causation. Dr. Linder concluded Mr. Ventura’s lead levels were normal and he did not
sustain an employment-related illness. As the panel-selected physician, Dr. Linder’s
causation opinion is afforded a presumption of correctness. Tenn. Code Ann. § 50-6-
102(14)(E) (2018). Moreover, Mr. Ventura failed to produce any expert medical evidence
to support his allegation that his illness arose primarily out of his employment.
In responding to CCon’s motion, Mr. Ventura must “demonstrate the existence of
specific facts in the record which could lead a rational trier of fact to find in his favor[.]”
Rye, at 265. Further, he must do more than simply offer hypothetical evidence; he must
produce evidence at this summary judgment stage of the case that is sufficient to establish
the essential elements of his workers’ compensation claim. Jd.
2
Here, Mr. Ventura produced no material facts for the Court to find in his favor.
Instead, he stated at the hearing that he has informational materials a hospital provided
him when they discharged him and stated that a physician’s assistant, Valerie Barber,
“treated him and healed him.”
Although the Court is aware of Mr. Ventura’s sincere belief that his illness arose
primarily out of his work exposure to lead, his lay opinion alone is legally insufficient to
refute Dr. Linder’s conclusions. Regarding the employee’s burden to provide medical
proof, the Appeals Board held:
In cases . .. where an employer has presented expert medical proof that the
employee’s condition is not work-related, the employee must present expert
medical proof that the alleged injury is causally related to the employment
when the case is not “obvious, simple [or] routine.” While lay testimony
may be probative on the issue of causation, it is insufficient to meet an
employee’s burden of proof in the absence of medical evidence.
Berdnik v. Fairfield Glade Cmty. Club, 2017 TN Wrk. Comp. App. Bd. LEXIS 32, at *10
(May 18, 2017) (internal citations omitted).
Accordingly, CCon’s Motion for Summary Judgment is granted, and Mr.
Ventura’s claim is dismissed with prejudice.
The costs of this cause are taxed to CCon under Tennessee Compilation Rules and
Regulations Rule 0800-02-21-.07, to be paid within five days of this order becoming
final. CCon shall prepare and submit the SD-2 for this matter within ten days of the date
of this order. Absent appeal, this order shall become final thirty days after entry.
IT IS SO ORDERED.
ENTERED January 25, 2019.
hehe So Hrell 3
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 January 25, 2019.
Name First Class | Via _ | Service sent to:
Mail Email
Valdez Ventura, xX x 112 Plum St., Selmer, TN 38375
Employee
Hailey David, x davidh@waldrophall.com
Attorney for Employer smithj@waldrophall.com
L ca wits J — =
Penny, Shrum, Court Clerk
we.courtclerk@tn. gov