Warren, Edward v. The Pictsweet Co.

FILED

Oct 17, 2019

12:50 PM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Edward Warren ) Docket No. 2017-07-0811

)

v. ) State File No. 18507-2016

)

The Pictsweet Co., et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Allen Phillips, Judge )

Affirmed and Remanded

The employee, a mechanic, alleged suffering work-related injuries to his back while

replacing a belt on a conveyor. The claim was accepted as compensable, and the

employer provided workers’ compensation benefits. The parties settled the case prior to

the expiration of the original compensation period, leaving open the employee’s right to

seek increased or extraordinary benefits. At the end of his initial benefit period, the

employee filed a petition seeking increased and/or extraordinary benefits. The employer

filed a motion for summary judgment alleging the employee was unable to show by clear

and convincing evidence that limiting his benefits to the original award would be

inequitable. The trial court denied the motion, concluding the employer did not negate an

essential element of the employee’s claim or show that the evidence was insufficient to

prove an essential element of his claim. The employer has appealed. We affirm the trial

court’s decision and remand the case.

Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in

which Judge Timothy W. Conner and Judge David F. Hensley joined.

Jennifer S. Slager, Memphis, Tennessee, for the employer-appellant, The Pictsweet

Company

Edward L. Martindale, Jr., Jackson, Tennessee, for the employee-appellee, Edward

Warren

1

Factual and Procedural Background

Edward Warren (“Employee”), a fifty-year-old resident of Haywood County,

Tennessee, worked for The Pictsweet Company (“Employer”) as a maintenance

mechanic. On March 8, 2016, Employee injured his back while replacing a belt on a

conveyor. Employer accepted the claim as compensable and provided workers’

compensation benefits, including authorized medical treatment from Dr. Samuel

Schroerlucke, who diagnosed Employee with lumbar spondylolisthesis and a herniated

disc and performed a lumbar fusion. He placed Employee at maximum medical

improvement on September 28, 2017, and assigned a twelve percent impairment rating to

the body as a whole. Employee returned to work for Employer in a less strenuous job

and at a reduced pay rate. However, he continued to experience symptoms and returned

to Dr. Schroerlucke on June 21, 2018, at which time Dr. Schroerlucke assigned additional

permanent restrictions. Employer was unable to accommodate the increased restrictions

and terminated Employee. Employee has not sought employment elsewhere.

On January 19, 2018, the parties entered into a settlement agreement under which

Employer paid permanent partial disability benefits for Employee’s initial compensation

period. On October 18, 2018, after the expiration of the initial benefit period, Employee

filed a petition for increased benefits pursuant to Tennessee Code Annotated section 50-

6-207 and/or extraordinary benefits under Tennessee Code Annotated section 50-6-242.

Employer filed a motion for summary judgment, asserting that Employee failed to show

by clear and convincing evidence that it would be inequitable to limit his relief to the

original award. Employer argued that, while Employee may be entitled to increased

benefits, he was not entitled to extraordinary benefits because he failed to seek any

employment after being terminated. Employee responded that the failure to return to

work is merely a factor that should be considered in the totality of the circumstances and

that a dispute of material fact existed regarding the extent of his disability.

The trial court denied Employer’s motion for summary judgment.1 The court

concluded Employer did not successfully negate an essential element of Employee’s

claim or demonstrate that his proof was insufficient as a matter of law to entitle him to

extraordinary benefits. The court further concluded that “employee’s failure to return to

gainful employment is but one factor in the assessment of vocational ability and is not

controlling of the Court’s complete analysis.” Employer appealed.

1

The trial court considered Employer’s motion to be one for partial summary judgment, as Employer

acknowledged Employee would be entitled to increased benefits under Tennessee Code Annotated section

50-6-207.

2

Standard of Review

A trial court’s ruling on a motion for summary judgment is reviewed de novo with

no presumption of correctness. Wallis v. Brainerd Baptist Church, 509 S.W.3d 886, 895

(Tenn. 2016) (“[W]e make a fresh determination of whether the requirements of Rule 56

of the Tennessee Rules of Civil Procedure have been satisfied.”). We are also mindful of

our obligation to construe the workers’ compensation statutes “fairly, impartially, and in

accordance with basic principles of statutory construction” and in a way that does not

favor either the employee or the employer. Tenn. Code Ann. § 50-6-116 (2018).

Analysis

The issue on appeal is whether Employer has shown that Employee cannot present

clear and convincing evidence that limiting his award of permanent partial disability

benefits to those available under Tennessee Code Annotated section 50-6-207(3)(B) is

inequitable, thereby making summary judgment appropriate. Like the trial court, we

answer in the negative.

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 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).

When the moving party does not bear the burden of production at trial, “the

moving party may either negate an essential element of the non-moving party’s claim or

show that the non-moving party does not have sufficient evidence to prove an essential

element of its claim.” TWB Architects, Inc. v. Braxton, LLC, No. M2017-00423-SC-R11-

CV, 2019 Tenn. LEXIS 296, at *21 (Tenn. July 22, 2019) (citing Celotex Corp. v.

Catrett, 477 U.S. 317, 331 (1986)). It is not enough for the moving party to challenge the

lack of evidence or cast doubt on the non-moving party’s ability to present evidence that

proves an element. See Melton v. BNSF Ry., 322 S.W.3d 174, 188 (Tenn. Ct. App.

2010).

Employer argues that Employee failed to show “it would inequitable to limit his

award to benefits under [Tennessee Code Annotated section] 50-6-207 given the fact that

[Employee] has not even attempted to find work . . . and has instead chosen to rely on

Social Security Disability Benefits.” However, the Special Workers’ Compensation

Appeals Panel has recently held that an employee’s failure to seek employment does not

necessarily serve as an automatic bar to benefits. See Duignan v. Stowers Mach. Corp.,

No. E2018-01120-SC-R3-WC, 2019 Tenn. LEXIS 224, at *25 (Tenn. Workers’ Comp.

3

Panel June 19, 2019) (“The fact that an employee was able to work after an injury in the

same type of employment, earning the same wages, does not ‘per se preclude [a trial]

court from finding [the employee] is totally disabled.’”). To the contrary, employment

after an injury should be considered along with “whether employee, in light of his

education, abilities, physical and/or mental infirmities, is employable in the open labor

market.” Id. at *25-26. “The extent of an injured employee’s vocational disability is a

question of fact for the trial court to determine from all of the evidence presented by the

parties, including lay and expert testimony.” Id. at *22.

In the present case, the parties dispute the extent of Employee’s vocational

disability and present competing theories on how the trial court should resolve the issue.

The trial court was thus faced with different means of analyzing the issue of Employee’s

vocational disability, an issue that is, ultimately, a determination of fact. As the trial

court observed, an employee’s failure to make any effort to return to work is but one

factor to consider when determining whether Employee is entitled to extraordinary

benefits. We agree and conclude the trial court correctly denied the motion for summary

judgment.

Conclusion

For the foregoing reasons, the trial court’s order denying partial summary

judgment is affirmed and the case is remanded. Costs on appeal are taxed to Employer.

4

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Edward Warren ) Docket No. 2017-07-0811

)

v. ) State File No. 18507-2016

)

The Pictsweet Co., et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Allen Phillips, 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 17th day

of October, 2019.

Name Certified First Class Via Via Sent to:

Mail Mail Fax Email

Edward L. Martindale, Jr. X edwardlmartindale@gmail.com

Rachal Wallace X rachalmwallace@gmail.com

Jennifer S. Slager X slagej2@nationwide.com

Shelia Boyer X boyes2@nationwide.com

Allen Phillips, 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

Jeanette Baird

Deputy Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B

Nashville, TN 37243

Telephone: 615-253-0064

Electronic Mail: WCAppeals.Clerk@tn.gov