Opinion

Pack, Jane v. Nashville CSC

  • 2021 TN WC 235
Court
Tennessee Court of Workers' Compensation Claims
Filed
Oct 18, 2021
Status
Published
On the bench
Joshua Davis Baker
Cited by
0 cases
Authority
More cited than 21.7%

The opinion

FILED

Oct 18, 2021

01:35 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

JANE PACK, ) Docket No. 2020-06-0866

Employee, )

)

v. )

NASHVILLE CSC, ) State File No. 7672-2020

Employer, )

and )

INDEMNITY INSURANCE )

COMPANY OF NORTH AMERICA, ) Judge Joshua D. Baker

Carrier. )

)

COMPENSATION ORDER GRANTING SUMMARY JUDGMENT

The Court heard Nashville CSC’s Motion for Summary Judgment on October 4,

2021. The issue was whether Ms. Pack’s claim is barred by the statute of limitations. For

the reasons below, the Court enters summary judgment in Nashville CSC’s favor.

Claim History

Ms. Pack alleged a June 12, 2019 injury, asserting she gradually injured her right

shoulder while operating power jacks for Nashville CSC. Nashville CSC never provided

medical or temporary disability benefits. Ms. Pack filed her petition for benefit

determination on June 12, 2020.

In her deposition, Ms. Pack sometimes meandered in answering questions about

how she became injured. She initially attributed her shoulder pain to general employment

duties, like “pulling the pallet jacks.” Then, she described a specific incident when “pulling

a product from the pallet jack, just pulling a product with my arm, my hand, with the

shoulder.” Her testimony about what she told supervisors about her injury also changed.

On one hand, she stated she mentioned the pain to them but did not report it as work-related

or ask for medical care; on the other hand, she said she reported a work injury but received

no response.

However, Ms. Pack consistently testified that she knew her shoulder pain was work-

related before visiting her doctor in June 2019. She specifically recalled telling a

supervisor named C.W. about her right shoulder pain in “April or May 2019” and wanted

her supervisor to complete paperwork for reporting a work-accident. She then “just forgot

about it” when he did not help her initiate a claim. Further, her medical records show she

told her doctor her shoulder pain began two or three months before her first visit on June

12, 2019.

Neither party disputed that Ms. Pack filed her petition on June 12, 2019, and

Nashville CSC denied the claim. In support of summary judgment, Nashville CSC cited

Ms. Pack’s deposition testimony as undisputed evidence that she injured her shoulder and

reported it to her supervisor in April or May 2019, more than a year before she filed suit.

In opposition to summary judgment, Ms. Pack claimed the date of her injury was

disputed but provided no affidavit or other sworn testimony to support this assertion.

Instead, she said that her testimony concerning when she became injured at work was

“retrospective and speculative.”

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 (2020).

As the moving party, Nashville CSC must do one of two things to prevail on its

motion: (1) submit affirmative evidence that negates an essential element of Ms. Pack’s

claim, or (2) demonstrate that Ms. Pack’s evidence is insufficient to establish an essential

element of her claim. Tenn. Code Ann. § 20-16-101 (2020); see also Rye v. Women’s Care

Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Nashville CSC does

either or both, Ms. Pack must respond by producing specific facts showing a genuine issue

for trial. Id.; Tenn. R. Civ. P. 56.06.

Nashville CSC argued that it has successfully negated the essential element that Ms.

Pack timely filed her claim. Tennessee Code Annotated section 50-6-203(b)(1) governs

the time within which a petition must be filed when an employer has not provided benefits,

as in this case. Specifically, the right to compensation is forever barred “unless the notice

required by § 50-6-201 is given to the employer and a petition for benefit determination is

filed . . . within one (1) year after the accident resulting in injury.”

Here, the undisputed facts show that Nashville CSC did not provide benefits, Ms.

2

Pack’s injury began in April or May 2019 when pulling pallets or product from a pallet,

and she filed her petition on June 12, 2020. Given her testimony that she knew her injury

was work-related before June 2019, Nashville CSC has negated an essential element of her

claim. Therefore, Ms. Pack must “demonstrate the existence of specific facts in the record

which could lead a rational trier of fact to find in her favor[.]” Rye, at 265.

While Ms. Pack filed a response that characterized several facts as disputed, her

testimony demonstrates she understood her injury was work-related as early as April or

May of 2019. Further, while she argued this testimony concerning the occurrence of her

injury was “retrospective and speculative,” she filed no affidavits to support this assertion.

Without any additional proof, her argument on the speculative nature of her testimony is

not sufficient to overcome summary judgment. Id.; Tenn. R. Civ. P. 56.06. (An employee

“may not rest upon the mere allegations or denials of her pleading” but must respond by

producing affidavits, pleadings, depositions, responses to interrogatories, or admissions

that set forth specific facts showing that there is a genuine issue for trial.). Since the

undisputed material facts show Ms. Pack filed her petition more than one year after she

first knew of her workplace injury in April or May 2019, Nashville CSC’s motion for

summary judgment is granted, and Ms. Pack’s claim is dismissed with prejudice.

Costs are taxed to Nashville CSC under Tennessee Compilation Rules and

Regulations 0800-02-21-.07, to be paid within five days of this order becoming final.

Nashville CSC shall prepare and submit the SD-2 within ten days of the date of this order.

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

It is ORDERED.

ENTERED October 18, 2021.

_____________________________________

Joshua Davis Baker, Judge

Court of Workers’ Compensation Claims

3

CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent as indicated on October 18, 2021.

Name Certified Via Via Service sent to:

Mail Fax Email

Jonathan May X jmay@forthepeople.com

Employee’s Attorney rschow@forthepeople.com

Catheryne Grant, X catherynelgrant@feeneymurray.com

Taylor Pruitt; jessica@feeneymurray.com

Employer’s Attorneys trp@feeneymurray.com

_____________________________________

Penny Shrum, Clerk

Court of Workers’ Compensation Claims

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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