Opinion

Parker, Sharon v. Ozark Motor Lines, Inc.

  • 2020 TN WC 84
Court
Tennessee Court of Workers' Compensation Claims
Filed
Sep 3, 2020
Status
Published
On the bench
Amber E. Luttrell
Cited by
0 cases
Authority
More cited than 14.5%

The opinion

FILED

Sep 03, 2020

02:18 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MEMPHIS

SHARON PARKER, ) Docket No. 2019-08-1092

Employee, )

v. )

OZARK MOTOR LINES, INC., ) State File No. 52984-2018

Employer, )

And )

TRAVELERS INDEMNITY CO., ) Judge Amber E. Luttrell

Carrier. )

COMPENSATION ORDER GRANTING SUMMARY JUDGMENT

This Court held a hearing on Ozark Motor Lines, Inc.’s Motion for Summary

Judgment on September 2, 2020. Ozark argued Ms. Parker has no evidence to demonstrate

she is entitled to an award of more than $29,202.06 in permanent partial disability benefits

and requests that the Court grant summary judgment and award Ms. Parker those benefits

with open future medical benefits. For the reasons below, the Court agrees and grants the

motion.

Procedural History and Material Facts

Ms. Parker filed a Petition for Benefit Determination seeking permanent partial

disability for a knee injury. The Dispute Certification Notice stated the parties stipulated

the applicable weekly compensation rate is $690.65, and the only issue is the extent of

permanent disability.

Ozark filed this Motion for Summary Judgment with a statement of sixteen

undisputed material facts with citations to the record in compliance with Tennessee Rules

of Civil Procedure 56.03. Ms. Parker admitted that fourteen of those facts were

undisputed.1

1

She objected to two statements on grounds they concerned settlement negotiations.

1

The parties agreed to the following facts: Ms. Parker worked as an over-the-road

truck driver for Ozark and injured her right knee while getting out of her truck on July 13,

2018. Ozark provided authorized treatment with Dr. John Lochemes, who diagnosed

meniscus tears in her knee and performed surgery. He placed her at maximum medical

improvement on April 16, 2019, and assigned a four-percent permanent impairment to the

body and permanent restrictions of no squatting or climbing. She underwent an

independent medical evaluation with Dr. Apurva Dalal, at her attorney’s request, who

agreed with the four-percent rating.

The parties further agreed that Ms. Parker’s essential duties as an over-the-road

truck driver required the ability to squat and climb; therefore, Ozark was unable to

accommodate her permanent restrictions, and she did not have a meaningful return to work.

Ms. Parker is over age forty and does not have a high school diploma.

At her stipulated compensation rate of $690.65, the parties agreed Ms. Parker is

entitled to an original award of $12,431.70 based on her four-percent permanent

impairment rating. However, because she did not return to work, the parties agreed she is

entitled to increased benefits based on the application of the 1.35 multiplier, the 1.45

multiplier based on her education level, and the 1.2 multiplier for her age. Ms. Parker’s

original award and increased benefits equate to $29,202.06 in permanent partial disability

benefits.

Ozark argued the undisputed material facts demonstrated Ms. Parker is entitled to

permanent partial disability benefits of $29,202.06 with open future medical benefits. It

contended Ms. Parker failed to prove she is entitled to anything more based on her

impairment rating, compensation rate, and increased benefits.

In response to Ozark’s motion, Ms. Parker stated that she expected Drs. Lochemes

and Dalal to testify consistently with the impairment opinions expressed in their records

but requested that the Court consider their testimony at trial. She further stated she wants

the opportunity to testify at trial.2

Law and Analysis

In considering Ozark’s motion, 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 (2019).

2

Ms. Parker confirmed at the hearing that she was not requesting a continuance of the hearing to allow her

to take the depositions of Drs. Lochemes and Dalal. She asked the Court to make its decision based on the

current record.

2

As the moving party, Ozark must do one of two things to prevail on its motion: (1)

submit affirmative evidence that negates an essential element of Ms. Parker’s claim, or (2)

demonstrate that Ms. Parker’s evidence is insufficient to establish an essential element of

her claim. Tenn. Code Ann. § 20-16-101; see also Rye v. Women’s Care Ctr. of Memphis,

MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Ozark meets this burden, Ms. Parker must

then establish that the record contains specific facts upon which the Court could rule in her

favor. Rye, at 265.

Here, the Court finds Ozark met its burden by demonstrating that Ms. Parker’s

evidence is insufficient to establish she is entitled to any award greater than permanent

partial disability benefits of $29,202.06 under Tennessee Code Annotated section 50-6-

207(3)(A) and (B) (2019). In fact, Ms. Parker did not dispute her entitlement to those

benefits.

In responding to the motion, Ms. Parker did not point to any specific facts in the

record upon which this Court could rely to award any greater permanent partial disability

benefits. It is not enough to allege that she is not satisfied with the benefits to which she is

entitled. Ms. Parker may not rest on mere allegations, “but her response, by affidavits or as

otherwise provided in [the] rule, must set forth specific facts showing that there is a genuine

issue for trial.” Tenn. R. Civ. P. 56.06. Here, the Court holds there is no genuine issue for

trial.

Accordingly, the Court grants Ozark’s motion.

IT IS THEREFORE ORDERED as follows:

1. Ms. Parker shall recover from Ozark permanent partial disability benefits in the total

amount of $29,202.06, representing her original award and increased benefits.

2. Ms. Parker shall receive lifetime future medical benefits pursuant to statute.

3. Ms. Parker’s attorney is awarded an attorney’s fee of twenty percent to be paid from

Ms. Parker’s award.

4. Court costs of $150.00 are assessed against Ozark under Tennessee Compilation

Rules and Regulations 0800-02-21-.06 (August 2019), to be paid within five days

of this order becoming final. Ozark shall file a statistical data form (SD2) within ten

business days of the date of this order under Tennessee Code Annotated section 50-

6-244.

5. Unless appealed, this order shall become final thirty days after issuance.

3

ENTERED September 3, 2020.

_____________________________________

JUDGE AMBER E. LUTTRELL

Court of Workers’ Compensation Claims

EXHIBITS

1. Ozark Motor Lines, Inc. Motion for Summary Judgment, Statement of

Undisputed Facts and Memorandum in Support.

2. Sharon Parker’s Memorandum in opposition to summary judgment and

response to Ozark’s Statement of Undisputed Facts.

CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent as indicated on September 3, 2020.

Name Email Service sent to:

James Blount, IV, X jimmy@calljmb.com

Employee’s Attorney

James M. Simpson, X jsimpson@allensummers.com

Employer’s Attorney dbarnes@allensummers.com

_________________________________

Penny 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

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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