The opinion
FILED
Aug 16, 2019
12:38 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Amy Bush ) Docket No. 2018-05-0258
)
v. ) State File No. 48483-2016
)
Stones River Center/ )
RHA Health Services, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Dale A. Tipps, Judge )
Affirmed and Certified as Final
Following a work-related back injury, the employee alleged she suffered several falls at
work caused by back spasms, one of which was reported to have occurred on June 8,
2016, resulting in injuries to her right foot and ankle. She filed a petition for benefits on
March 7, 2018. After the employer filed a motion for summary judgment, asserting the
expiration of the statute of limitations, the employee failed to respond in writing, but
argued at a subsequent hearing that she “disputed everything.” The trial court granted the
employer’s motion for summary judgment, and the employee has appealed. We affirm
the trial court’s order and certify it as final.
Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Presiding
Judge Marshall L. Davidson, III, and Judge David F. Hensley joined.
Amy Bush, Murfreesboro, Tennessee, employee-appellant, pro se
Rosalia Fiorello, Nashville, Tennessee, for the employer-appellee, Stones River
Center/RHA Health Services
Factual and Procedural Background
Amy Bush (“Employee”), a resident of Rutherford County, Tennessee, was
employed by Stones River Center/RHA Health Services (“Employer”). On January 18,
2016, she suffered a compensable, work-related back injury. The parties settled that
claim, and the trial court approved the settlement in July 2017.
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Employee alleged she suffered another injury to her right foot and ankle on June 8,
2016, when she fell as she stood up from a chair after experiencing a spasm in her back.
Employer denied the claim and did not provide any benefits. More than one year later,
Employee filed a petition for benefits. Following Employee’s request for an expedited
hearing in which she sought temporary disability and/or medical benefits, the trial court
entered an order denying Employee’s request based on a finding that her petition was not
timely filed. Employee appealed, and we affirmed the trial court’s order and remanded
the case. Bush v. Stones River Center, No. 2018-05-0258, unpublished order (Tenn.
Workers’ Comp. App. Bd. Jan. 18, 2019). Thereafter, Employer filed a motion for
summary judgment, asserting that Employee’s statute of limitations had expired.
Employee did not respond to the motion or Employer’s statement of undisputed material
facts, but argued at a subsequent hearing that she “disputed everything.” The trial court
granted the motion and entered judgment in favor of Employer. Employee has appealed.
Standard of Review
The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2018). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court. Madden v. Holland
Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, the grant or denial of a
motion for summary judgment is an issue of law and, therefore, our standard of review is
de novo with no presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); McBee v. CSX Transp., Inc., No. W2015-
01253-COA-R3-CV, 2017 Tenn. App. LEXIS 129, at *14 (Tenn. Ct. App. Feb. 24,
2017). As such, we must “make a fresh determination of whether the requirements of
Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied.” Rye, 477
S.W.3d at 250.
Analysis
A motion for summary judgment should be granted when “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. The
burden is on the party pursuing summary judgment to demonstrate both that no genuine
issue of material fact exists and that the moving party is entitled to a judgment as a matter
of law. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008). If the moving
party makes a properly supported motion, the burden of production then shifts to the
nonmoving party to demonstrate the existence of a genuine issue of material fact at the
summary judgment stage. Rye, 477 S.W.3d at 265.
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In the present case, any meaningful review of Employee’s appeal is significantly
hindered by several factors. First, Employee has failed to identify an appealable issue in
her notice of appeal, asserting only that she was “severely injured” and that she has
“provided evidence of this.” Yet, she did not assert her claim was timely filed, did not
allege any errors on the part of the trial court, and did not offer any theory or argument as
to why the trial court’s order should be reversed.
Second, Employee has not submitted a brief on appeal identifying any alleged
errors made by the trial court or providing any argument to support her position on
appeal. “It is not the role of the courts, trial or appellate, to research or construct a
litigant’s case or arguments for him or her.” Sneed v. Bd. of Prof’l Responsibility of the
Sup. Ct. of Tenn., 301 S.W.3d 603, 615 (Tenn. 2010).
Third, we agree with the trial court that Employer met its burden of production
with respect to its motion for summary judgment by asserting, without contradiction, that
Employee’s petition for benefits was filed more than one year after the alleged injury and
that Employer made no voluntary payment of benefits that would extend the time for
filing a petition. Thus, the burden shifted to Employee to demonstrate the existence of a
genuine issue of material fact regarding the timeliness of her petition. Rye, 477 S.W.3d
at 265. She failed to do so. Therefore, we conclude the trial court’s order granting
summary judgment is supported by the record.
Finally, as we did in the first appeal filed by Employee, we find Employee’s
present appeal to be frivolous because it had “no reasonable chance of succeeding.”
Adkins v. Studsvik, Inc., No. E2014-00444-SC-R3-WC, 2015 Tenn. LEXIS 588, at *30
(Tenn. Workers’ Comp. Panel July 21, 2015) (citation omitted). However, we exercise
our discretion not to award attorneys’ fees or other expenses for the frivolous appeal. See
Tenn. Comp. R. & Regs. 0800-02-22-.04(6) (2018).
Conclusion
For the foregoing reasons, the trial court’s order granting summary judgment is
affirmed and certified as final. Each party shall bear its own costs on appeal.
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TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Amy Bush ) Docket No. 2018-05-0258
)
v. ) State File No. 48483-2016
)
Stones River Center/ )
RHA Health Services, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Dale A. Tipps, Judge )
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 16th day of August, 2019.
Name Certified First Via Fax Via Sent to:
Mail Class Fax Number Email
Amy Bush X X amy.bush0000@gmail.com
1010 N. Academy St.
Murfreesboro, TN 37130
Rosalia Fiorello X rfiorello@wimberlylawson.com
MOST X patsy.bumbalough@tn.gov
peggy.haley@tn.gov
Dale A. Tipps, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov