Opinion

Harden, Jeffrey v. Advance MFG CO., Inc.

  • 2020 TN WC 24
Court
Tennessee Court of Workers' Compensation Claims
Filed
Feb 13, 2020
Status
Published
On the bench
Allen Phillips
Cited by
0 cases
Authority
More cited than 12.5%

The opinion

FILED

Feb 13, 2020

03:45 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS' COMPENSATION

IN THE COURT OF WORKERS' COMPENSATION CLAIMS

AT MEMPHIS

JEFFREY HARDEN, ) Docket No. 2018-08-1535

Employee, )

v. )

ADVANCE MFG. CO., INC., ) State File No. 97520-2018

Employer, )

And )

TRAVELERS INDEMNITY CO. OF ) Judge Allen Phillips

AMERICA, )

Carrier. )

COMPENSATION ORDER GRANTING SUMMARY JUDGMENT

This case came before the Court on Advance's Motion for Summary Judgment.

Advance argued it is entitled to summary judgment because Mr. Harden cannot establish

his injuries arose primarily out of his employment. For the following reasons, the Court

grants the motion.

Procedural History

Mr. Harden allegedly developed lumbar and cervical radiculopathy from

performing heavy manual labor at Advance. Advance denied the claim, asserting

defenses of notice and causation.

On September 4, 2019, Advance filed its Motion for Summary Judgment, a

Statement of Undisputed Facts, and supporting affidavits. In its motion, Advance argued

it was entitled to a judgment as a matter of law because Mr. Harden had produced

insufficient proof of causation.

The Court struck Mr. Harden's response to the motion because he failed to file it

"not later than five days before the hearing" as required by the Tennessee Rules of Civil

Procedure. With the hearing scheduled for November 13, Mr. Harden filed his response

on November 8. Advance moved to strike it as untimely. When excluding the

1

intermediate weekend and Veteran's Day holiday, Advance argued that Mr. Harden filed

his response less than five business days before the hearing. The Court agreed. It reset the

summary judgment hearing for January.

On December 31, Mr. Harden filed a Motion for Voluntary Nonsuit Without

Prejudice. Advance objected because Tennessee Compilation Rules and Regulations

0800-02-21-.24 prohibits a voluntary dismissal if a summary judgment motion is

pending. The Court agreed and denied Mr. Harden's motion.

On January 30, the Court heard argument on the Motion for Summary Judgment.

Mr. Harden orally moved the Court to reconsider its order striking his response and

argued that he provided timely notice. Advance reiterated that the medical evidence did

not establish causation.

Facts

Because it struck Mr. Harden's response, the Court must accept Advance's

Statement of Undisputed Facts as true. So considered, the Court summarizes them as

follows:

1. In February 2018, Mr. Harden sought emergency treatment for numbness on the

entire right side of his body, and a provider diagnosed an acute stroke.

2. Four days later, he saw Dr. Daniel Magro in follow-up for his stroke symptoms,

and Dr. Magro diagnosed transient cerebral ischemia, prediabetes, and acute right-

sided weakness.

3. Mr. Harden saw Dr. Magro for his stroke symptoms over the next five months.

4. On July 3, Dr. Magro first diagnosed Mr. Harden with cervical and lumbar

radiculopathy.

5. Later that month, Mr. Harden asked Advance to file a workers' compensation

claim, neither mentioning radiculopathy specifically, nor reporting a specific

incident or date of injury.

6. During the mediation process, Mr. Harden filed a letter from Dr. Magro in which

the doctor stated Mr. Harden's lumbar and cervical radiculopathy is "likely

secondary to 30+ years of hard manual labor."

Analysis

Summary judgment is appropriate if there is no genuine issue of material fact and

the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04

(20 19). As the party not bearing the burden of proof at trial, Advance may establish its

entitlement to summary judgment either by (1) affirmatively negating an essential

element of Mr. Harden's claim or (2) demonstrating that his evidence is insufficient to

establish his claim. Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235,

264 (Tenn. 2015). If Advance makes a properly supported motion, the burden of proof

shifts to Mr. Harden to demonstrate the existence of a genuine issue of material fact. !d.

2

at 265.

Advance properly supported its motion with a statement of undisputed facts with

citations to the record. Mr. Harden did not timely respond. At the hearing, Mr. Harden

asked the Court to reconsider its order striking his response as untimely. The Court

declines. Tennessee Rules of Civil Procedure 6.01, and the law interpreting it, make clear

the time restrictions on filings, and the Court followed those requirements. Moreover, Mr.

Harden did not file a motion to reconsider the order striking his response before the

summary judgment hearing.

However, even if the Court were to consider Mr. Harden's response, the

dispositive issue remains the same: whether he presented adequate proof that his injury

arose primarily out of his employment. The Court holds he did not.

Mr. Harden must show his alleged injury arose primarily out of his employment.

An injury arises primarily out of the employment only if it contributed more than fifty

percent (50%) in causing the injury when considering all causes. Tenn. Code Ann. § 50-

6-102(14)(A) and (B) (2019). This connection must be shown to a reasonable degree of

medical certainty, which means that, in the opinion of the treating physician, it is more

likely than not considering all causes as opposed to speculation or possibility. !d. at (C)

and (D). Under the undisputed facts, Advance both negated the essential element of Mr.

Harden's claim and demonstrated the evidence was insufficient to establish the causal

relationship between his injury and his employment.

In reaching this conclusion, the Court is guided by Gamble v. Miller Indus., Inc.,

2017 TN Wrk. Comp. App. Bd. LEXIS 16, (Feb 9, 2017). In Gamble, a physician said

the employee's "complaints [were] "most likely secondary" to a work injury and added

that the employee was "injured during a trauma [.]" (Emphasis added). The Board held

this proof insufficient to establish causation because the physician "did not express an

opinion ... whether the injury contributed more than 50% in causing the need for ...

medical treatment." !d. at *13-14.

Here, Dr. Magro stated that Mr. Harden's injury was "likely secondary to 30+

years of hard manual labor"; the same type of opinion found inadequate in Gamble.

Therefore, the Court holds the medical evidence before the Court is insufficient to

establish that Mr. Harden's injury arose primarily out of his employment. The Court

grants Advance summary judgment as a matter of law.

THEREFORE, IT IS ORDERED AS FOLLOWS:

1. Mr. Harden's claim is dismissed with prejudice to its refiling.

2. Absent appeal, this order shall become final thirty days after entry.

3

3. The Court taxes the $150.00 filing fee to Advance under Tennessee Compilation

Rules and Regulations 0800-02-21-.06, payable to the Clerk within five business

days of this order becoming final.

4. Advance shall prepare and submit the SD-2 wi the Clerk within ten business

days ofthe date of judgment.

ENTERED February 13, 2020. \\

Compensation Claims

CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent as indicated on February 13, 2020.

Name Mail Email Service Sent To:

Christopher L. Taylor, X ctaylor@taylortoon.com

Employee's Attorney sreynolds@taylortoon.com

Paul T. Nicks, X pnicks@travelers.com

Employer's Attorney jschmidt@travelers.com

PENN SHRUM, COURT CLERK

Wc.courtclerk@tn.gov

4

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: “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 within 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 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.

NOTICE OF APPEAL

Tennessee Bureau of Workers’ Compensation

www.tn.gov/workforce/injuries-at-work/

wc.courtclerk@tn.gov | 1-800-332-2667

Docket No.: ________________________

State File No.: ______________________

Date of Injury: _____________________

___________________________________________________________________________

Employee

v.

___________________________________________________________________________

Employer

Notice is given that ____________________________________________________________________

[List name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the

Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-

stamped on the first page of the order(s) being appealed):

□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________

□ Compensation Order filed on__________________ □ Other Order filed on_____________________

issued by Judge _________________________________________________________________________.

Statement of the Issues on Appeal

Provide a short and plain statement of the issues on appeal or basis for relief on appeal:

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

Parties

Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee

Address: ________________________________________________________ Phone: ___________________

Email: __________________________________________________________

Attorney’s Name: ______________________________________________ BPR#: _______________________

Attorney’s Email: ______________________________________________ Phone: _______________________

Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellant *

LB-1099 rev. 01/20 Page 1 of 2 RDA 11082

Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________

Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee

Appellee’s Address: ______________________________________________ Phone: ____________________

Email: _________________________________________________________

Attorney’s Name: _____________________________________________ BPR#: ________________________

Attorney’s Email: _____________________________________________ Phone: _______________________

Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE

I, _____________________________________________________________, certify that I have forwarded a

true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described

in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this

case on this the __________ day of ___________________________________, 20 ____.

______________________________________________

[Signature of appellant or attorney for appellant]

LB-1099 rev. 01/20 Page 2 of 2 RDA 11082

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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 b y : - - - - - - - - - - - - - - - - - - - -- - - - - - - - -

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 Comp.$ per month beginning

Other $ per month beginning

LB-11 08 (REV 11/15) RDA 11082

9. My expenses are:

RenUHouse Payment $ per month Medical/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 11115) 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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