The opinion
FILED
Oct 31, 2019
12:02 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
TRACIE HARDY, ) Docket No. 2019-08-0120
Employee, )
V. )
HERSHEY CoO., ) State File No. 7237 2019
Employer, )
and )
XL INSURANCE AMERICA, INC., ) Judge Amber Luttrell
Carrier. )
COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT
This Court heard Hershey’s Motion for Summary Judgment on October 16, 2019,
and for the reasons below holds it is entitled to summary judgment.
Procedural History
Ms. Hardy alleged she suffered a respiratory illness diagnosed as asthma and
chronic obstructive pulmonary disease (COPD) from her work exposure to chemicals,
mold, and asbestos. This is her second workers’ compensation claim for the same
condition.
In 2017, Ms. Hardy filed a Petition for Benefit Determination for Settlement
Approval Only alleging an October 2, 2016 injury date, which this Court approved on
May 18, 2017. On January 30, 2019, Ms. Hardy filed a second Petition for Benefit
Determination seeking benefits for COPD but alleged an injury date of September 7,
2016. Hershey denied the claim and asserted multiple defenses, including accord and
satisfaction and res judicata.
Following an, expedited hearing, the Court found that Hershey offered sufficient
evidence to satisfy its accord and satisfaction defense and to establish that res judicata
barred Ms. Hardy’s claim. Based on those findings, the Court held Ms. Hardy was not
likely to prevail at a hearing on the merits in her claim for workers’ compensation
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benefits.
Hershey later filed this Motion for Summary Judgment. In response, Ms. Hardy
filed numerous documents, which she captioned as follows:
e “Pro Se Employee’s Opposition of Employer’s Motion for Summary
Judgment with Factual Statements of Undisputed Facts In Support of
Opposition”
e “Factual Findings of Facts and Conclusions to Deny Employer
Summary Judgment Request”
e “Factual Findings and Valid Conclusions to Deny Employer/Carrier
Summary Judgment Request.”
Law and 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 (2018).
As the moving party, Hershey must do one of two things to prevail on its motion:
(1) submit affirmative evidence that negates an essential element of Ms. Hardy’s claim,
or (2) demonstrate that Ms. Hardy’s evidence is insufficient to establish an essential
element of her claim. Tenn. Code Ann. § 20-16-101 (2018); see also Rye v. Women’s
Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Hershey is
successful in meeting this burden, Ms. Hardy must then establish that the record contains
specific facts upon which the Court could rule in her favor. Rye, at 265.
In addition to these requirements, Rule 56.03 provides specific filing requirements
for both Hershey and Ms. Hardy. Hershey must file a statement of undisputed material
facts with its motion, ensuring that each fact is accompanied by a citation to the record.
Likewise, Ms. Hardy must respond to this statement of undisputed facts, indicating she
agrees the fact is undisputed or demonstrating that the fact is disputed by providing a
citation the record. Jd.
Hershey filed a Statement of Undisputed Facts containing thirteen statements with
citations to the record in compliance with Rule 56.03.
Ms. Hardy’s response captioned “Pro Se Employee Opposition of Employer’s
Motion for Summary Judgment with Factual Statements of Undisputed Facts in Support
of Opposition” listed twenty-one numbered statements followed by some additional
statements numbered one through eleven. Ms. Hardy’s two other filings did not contain
any numbered statements. Instead, those responses contained argument, allegations, case
ps
law citations, and various exhibits introduced at the expedited hearing or excluded from
evidence at the expedited hearing on hearsay grounds.
The Court considers Ms. Hardy’s twenty-one numbered statements in “Pro Se
Employee Opposition of Employer’s Motion for Summary Judgment with Factual
Statements of Undisputed Fats in Support of Opposition” as her response to Hershey’s
Statement of Undisputed Facts. Upon review, the Court finds Ms. Hardy agrees with
Hershey’s statement number one to the extent that she was employed by Hershey. Ms.
Hardy also appears to agree with Hershey’s statement number three that she was
previously represented by attorney Monica Rejaei. The Court finds the additional
statements Ms. Hardy provided in numbers one and three contain no citation to the record
and are not material to the issue before the Court on summary judgment.
As for the remainder of Ms. Hardy’s twenty-one responses, the Court finds the
statements do not respond to Hershey’s statements of undisputed facts as required under
Rule 56.03. Instead, the statements are Ms. Hardy’s arguments or allegations of fact
without citations to the record. Our Appeals Board has stated, ““The requirements of Rule
56 are not mere suggestions. The use of the words ‘must’ and ‘shall’ in Rule 56.03 to
describe the necessary elements of a motion for summary judgment and any response
thereto are plain and unambiguous.” Thomas v. Zipp Express, 2017 TN Wrk. Comp. App.
Bd. LEXIS 22, at *11 (Mar. 15, 2017). Because Ms. Hardy failed to properly respond to
the statements, the Court considers Hershey’s thirteen facts undisputed and turns to
whether summary judgment is “appropriate” under Rule 56.
The Court finds Hershey affirmatively negated an essential element of Ms.
Hardy’s claim because the doctrines of accord and satisfaction and res judicata bar Ms.
Hardy’s cause of action.
In support of this finding, the undisputed facts show that on May 4, 2017, Ms.
Hardy, through counsel, filed a Petition for Benefit Determination Settlement Approval
Only concerning an alleged date of injury of October 2, 2016. She alleged she suffered
asthma and pulmonary problems caused by her employment at Hershey. Dr. Suzette
Panton diagnosed Ms. Hardy with COPD in 2016. Following the diagnosis, Ms. Hardy’s
attorney sent Dr. Panton a causation letter, to which Dr. Panton responded “no” when
asked if Ms. Hardy’s COPD arose primarily out of and in the course and scope of her
employment. Dr. Panton’s causation opinion prompted Ms. Hardy to enter into a
settlement agreement with Hershey on a doubtful and disputed basis, and as part of the
settlement, Hershey paid Ms. Hardy $6,000.
The undisputed facts further indicate that following an approval hearing attended
by Ms. Hardy and her counsel, this Court approved the settlement on May 18, 2017,
finding that Ms. Hardy reached a compromised settlement of her doubtful and disputed
claim that was in her best interest. Hershey then tendered to Ms. Hardy a $6,000 check as
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“satisfaction and extinction” of Ms. Hardy’s claim for workers’ compensation benefits.
Ms. Hardy received the settlement proceeds of $6,000 less the amounts deducted by her
attorney under the terms of representation between Ms. Hardy and her counsel. Ms.
Hardy further signed Hershey’s Release of Workers’ Compensation Claim and released
and waived all claims against Hershey for workers’ compensation benefits relative to her
COPD and asthma condition.
On January 30, 2019, Ms. Hardy, now self-represented, filed a second Petition for
Benefit Determination claiming her COPD was work-related and listing a September 7,
2016 date of injury.
At the hearing, Hershey correctly noted that the doctrine of accord and satisfaction
is governed by Tennessee Code Annotated section 47-3-311 (2018). The statute provides:
(a) If a person against whom a claim is asserted proves that (i) that person
in good faith tendered an instrument to the claimant as full satisfaction
of the claim, (ii) the amount of the claim was unliquidated or subject to
a bona fide dispute, and (iii) the claimant obtained payment of the
instrument, the following subsections apply.
(b)... [T]he claim is discharged if the person against whom the claim is
asserted proves that the instrument or an accompanying written
communication contained a conspicuous statement to the effect that the
instrument was tendered as full satisfaction of the claim.
Hershey argued that the undisputed facts establish the defense of accord and satisfaction,
so Ms. Hardy 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, she must do more
than simply offer hypothetical evidence; she 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.
Here, Ms. Hardy produced no material facts with citations to the record to lead the
Court to find in her favor. Instead, she noted inaccuracies or typographical errors on the
Statistical Data Form (SD1) or other documents filed with the 2017 settlement
documents; she argued that her condition was caused by her work; she argued she was
mistreated by Hershey; and she expressed dissatisfaction with the attorney who
represented her in the settlement. She further argued that the October 2, 2016 date of
injury listed in her settlement documents was incorrect because she stated Dr. Panton
verbally informed her of her COPD diagnosis one month earlier, on September 7, 2016.
The Court holds Hershey proved the affirmative defense of accord and
satisfaction. Without restating the undisputed facts, the Court finds they complied with
the requirements of section (a) of the statute and that Ms. Hardy’s execution of Hershey’s
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Release of Workers’ Compensation Claim served as the “conspicuous statement” under
section (b) that the $6,000 was paid as full satisfaction of her claim.
Further, the Court holds the undisputed facts established Ms. Hardy’s claim is also
barred by res judicata, which the Appeals Board explained as follows:
The doctrine of res judicata, also referred to as claim preclusion, bars a
second suit between the same parties or their privies on the same cause of
action with respect to all issues which were or could have been litigated in
the former suit. Courts rely on this doctrine to promote finality in litigation,
prevent inconsistent or contradictory judgments, conserve legal resources,
and protect litigants from the cost and vexation of multiple lawsuits. The
doctrine is grounded in public policy which requires an eventual end to
litigation. Indeed, the doctrine has been described as a “rule of rest.”
Johnson v. Pilgrim’s Pride, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 18, at *3-4 (Feb.
13, 2017) (internal citations omitted).
Here, the Court finds its May 18, 2017 Order Approving Workers’ Compensation
Settlement Agreement was a final order that fully resolved Ms. Hardy’s original claim,
and both Hershey and Ms. Hardy were parties to that suit. In the present case, it is
undisputed that Ms. Hardy asserted the same claim—that her COPD diagnosed in 2016
arose out of her employment at Hershey. Thus, the Court holds Hershey negated an
essential element of Ms. Hardy’s claim based on the doctrine of res judicata and is
entitled to judgment as a matter of law.
For these reasons, Hershey’s Motion for Summary Judgment is granted, and Ms.
Hardy’s claim is dismissed with prejudice.
The costs of this case are taxed to Hershey under Tennessee Compilation Rules
and Regulations 0800-02-21-.06 (August 2019), to be paid to the Court Clerk within five
business days of this order becoming final. Hershey shall prepare and submit an SD-2
within ten days of the date of this order. Absent appeal, this order shall become final
thirty days after entry.
IT IS ORDERED.
ENTERED October 31, 2019.
JUDGE AMBER E. LUTTRELL
Court of Workers’ Compensation Claims
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Exhibits
—
ao toe
APPENDIX
Employer’s Motion for Summary Judgment
Employer’s Memorandum of Law in Support of Summary Judgment
Employer’s Statement of Undisputed Facts in Support of Summary Judgment
Pro Se Employee’s Opposition of Employer’s Motion for Summary Judgment
with Factual Statements of Undisputed Facts in Support of Opposition
5. Employee’s Factual Findings of Facts and Conclusions to Deny Employer
Summary Judgment Request
6. Employee’s Factual Findings and Valid Conclusions to Deny Employer/Carrier
Summary Judgment Request
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on October 31 , 2019.
Name
USPS
Email | Service sent to:
Tracie Hardy, Employee
xX
»4 traciehardy49@gmail.com
5264 Millbranch Rd., Memphis, TN 38116
Matthew Macaw, Esq.,
Stephen Miller, Esq.,
Employer’s Attorneys
xX smiller@mckuhn.com
mmacaw(@mckuhn.com
{if
SL tyre { J A Ada
Penny /Shrum, Clerk of Court
Court of Workers’ Compensation Claims
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:
|. 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 with'n 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 s-hmitted 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 2pproves 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 fifieen 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 selj-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
800-332-2667
AFFIDAVIT G¥ INDEGENCY
I, , Naving 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: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of All Dependents:
Relationship:
meationship:
Reiattionship:
Relationship:
6. lam employed by:
My employer's address is:
My employer's phone number is:
7. My present monthly household income, after federal insarna and social security taxes are deducted, is:
$
8. | receive or expect to receive money from the following scurces:
AFDC $ per month beginning -
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month dagiesing .
Worker's Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are:
Rent/House Payment $ permonth Medical/Dental $ per month
Groceries $$ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ _ per month Clothing $ per month
Gas S$ 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 $ __ (Flv)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
| 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
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082
LB-1103
COMPENSATION HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
wav. tr pov/labarwid/weomp.shtnil
wc.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Employer
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals Board.
[List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
List of Parties
Appellant (Requesting Party): __At Hearing:|_JEmployerL_ Employee
Address:
Party’s Phone: __Emai!:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for gach additional Appellant *
rev, 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party):__ At Hearing:[_Employer__lEmployee
Appetlee’s Address:
Appellee’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Ernail:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a true and exact copy of this
Compensation Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all
parties and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee
Rules of Board of Workers’ Compensation Appeals onthisthe —s_ day of , 20
[Signature of appellant or attorney for appellant]
Attention: This form should only be used when filing an appeal to the Workers’ Compensation Appeals
Board. If you wish to appeal a case to the Tennessee Stspreme Court, please utilize the form provided by
the Court which can be found on their website at the following address:
http://www. tncourts.gov/sites/default/files/docs/notice of appeal - civil or criminal.pdf
LB-1103 rev. 10/18 Page 2 of 2 RDA 11082