The opinion
FILED
Jan 19, 2023
07:20 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Tre’Bion Lindsay ) Docket No. 2021-06-1620
)
v. ) State File No. 93970-2021
)
State Industries, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Joshua D. Baker, Judge )
Affirmed and Certified as Final
This appeal follows the trial court’s grant of the employer’s motion for summary
judgment in which the employer asserted the employee could not establish his alleged
back injury arose primarily out of and in the course and scope of his employment.
Specifically, the employer provided two expert medical opinions indicating that the
employee’s alleged injury was not more than fifty percent related to the employment.
The employee filed a late response to the motion, but he did not provide any medical
documentation of an injury or any expert medical opinion that the injury was primarily
related to the reported incident or his employment. The trial court concluded that the
employer presented affirmative evidence negating an essential element of the employee’s
claim and that the employee failed to show the existence of any genuine issue of material
fact for trial. The employee has appealed. Having carefully reviewed the record, we
affirm the trial court’s decision and certify it as final.
Judge Meredith B. Weaver delivered the opinion of the Appeals Board in which
Presiding Judge Timothy W. Conner and Judge Pele I. Godkin joined.
Tre’Bion Lindsay, Clarksville, Tennessee, employee-appellant, pro se
Lee Anne Murray and Taylor Pruitt, Nashville, Tennessee, for the employer-appellee,
State Industries, LLC
1
Memorandum Opinion 1
While in the course and scope of his employment as a line hanger with State
Industries, LLC (“Employer”) 2, Tre’Bion Lindsay (“Employee”) reported pain in his
back after lifting objects on December 8, 2021. 3 Employee reported the incident to his
supervisor and subsequently reported his condition worsening a week later. He was
provided a panel of orthopedic specialists from which he chose Dr. Ryan Snowden. Dr.
Snowden saw Employee on March 14, 2022, and he later completed and signed a Form
C-32 Standard Form Medical Report (“C-32”) stating the employment did not cause
Employee’s disablement or aggravate his pre-existing condition. Dr. Snowden further
stated that, upon his review of the “imaging studies and medical records, it is apparent
[Employee’s] employment did not contribute more than 50% in causing his medical
condition or the need for medical treatment.” Dr. Snowden placed Employee at
maximum medical improvement on March 14, 2022, and also stated he could have been
working with restrictions as of December 8, 2021.
Thereafter, Employee sought medical care on his own and obtained an evaluation
with neurosurgeon Dr. Scott Standard, who diagnosed him with degenerative disc disease
unrelated to his employment. Dr. Standard also completed and signed a C-32 in which he
opined that the work injury was not the cause of Employee’s disability or need for
medical treatment and did not aggravate his pre-existing condition. Dr. Standard also
stated that Employee had been “taken off work for his non-work-related degenerative
condition.”
Both medical reports were properly filed with the trial court in accordance with
Tennessee Code Annotated section 50-6-235, and Employee timely objected to the one
Dr. Snowden had completed. However, Employee did not depose Dr. Snowden or offer
any other medical proof addressing the issue of medical causation. 4 As such, Employer
filed a motion for summary judgment in which it argued Employee could not prove his
alleged injury arose primarily out of the employment. Employee filed a response one day
1
“The appeals board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the appeals board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Tenn. Comp. R. & Regs. 0800-02-22-.03(1) (2020).
2
Employer is also referred to as “AO Smith” throughout the record interchangeably.
3
Employer’s brief on appeal states the reported injury was on September 8, 2021, but this appears to be a
typographical error as the remainder of the record consistently identifies December 8 as the date of injury.
4
In accordance with Tennessee Code Annotated section 50-6-235(c)(2), a party who objects to the filing
of a Form C-32 must depose that physician “within a reasonable time or the objection shall be deemed to
be waived.”
2
prior to the hearing for the motion for summary judgment attaching non-certified medical
records and arguing that he had no pre-existing back condition. 5
The trial court granted Employer’s motion, determining that the unrefuted medical
evidence submitted by Employer negated an essential element of Employee’s claim,
namely that Employee’s alleged injury arose primarily out of the employment. Further,
the court found that Employee did not offer evidence of any disputed material facts.
Employee has appealed.
The Tennessee Supreme Court has explained the requirements for a movant to
prevail on a motion for summary judgment:
[W]hen the moving party does not bear the burden of proof at trial, the
moving party may satisfy its burden of production either (1) by
affirmatively negating an essential element of the nonmoving party’s claim
or (2) by demonstrating that the nonmoving party’s evidence at the
summary judgment stage is insufficient to establish the nonmoving party’s
claim or defense. We reiterate that a moving party seeking summary
judgment by attacking the nonmoving party’s evidence must do more than
make a conclusory assertion that summary judgment is appropriate on this
basis. Rather, Tennessee Rule 56.03 requires the moving party to support
its motion with “a separate concise statement of material facts as to which
the moving party contends there is no genuine issue for trial.” Tenn. R.
Civ. P. 56.03. “Each fact is to be set forth in a separate, numbered
paragraph and supported by a specific citation to the record.” Id.
Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264-65 (Tenn. 2015).
Employee is self-represented in this appeal, as he was in the trial court. He did not
identify a specific issue in his Notice of Appeal but instead relied on a previously
submitted brief in which he argued that the C-32s submitted by Employer were not
submitted properly. He asserted that he wanted “lost wages” and continued medical
benefits “if needed.”
Parties who decide to represent themselves are entitled to fair and equal treatment
by the courts. Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000).
However, as explained by the Court of Appeals,
5
Pursuant to Tenn. Comp. R. and Regs. 0800-02-21-.18(1)(d), responses to motions for summary
judgment must be filed “no later than five (5) business days before the motion hearing.” Moreover, “[i]f
no opposition is filed, the dispositive motion will be considered unopposed.” Id.
3
courts must also be mindful of the boundary between fairness to a pro se
litigant and unfairness to the pro se litigant’s adversary. Thus, the courts
must not excuse pro se litigants from complying with the same substantive
and procedural rules that represented parties are expected to
observe. . . . Pro se litigants should not be permitted to shift the burden of
the litigation to the courts or to their adversaries.
Hessmer v. Hessmer, 138 S.W.3d 901, 903-04 (Tenn. Ct. App. 2003) (citations omitted).
Two physicians opined that Employee’s alleged injury did not arise primarily out
of his employment. Both physicians signed and dated the Form C-32s, and Employer
properly submitted them to the court with notice to Employee. Employee did not depose
either doctor, nor did he properly submit his own medical proof of an injury primarily
arising out of and in the course and scope of his employment. While he did respond to
the motion for summary judgment, his response was not timely, and it did not raise any
genuine issues of disputed material fact. Thus, we conclude that Employer’s medical
proof was sufficient to negate an essential element of Employee’s claim, namely that his
alleged injury arose primarily out of his employment. The burden then shifted to
Employee to establish that there were disputed issues of material fact remaining.
Employee failed to properly respond to Employer’s motion and failed to present any
evidence that would establish any issues of material fact.
Thus, for the foregoing reasons, we affirm the trial court’s order granting the
motion for summary judgment and certify it as final. Costs on appeal have been waived.
4
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Tre’Bion Lindsay ) Docket No. 2021-06-1620
)
v. ) State File No. 93970-2021
)
State Industries, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Joshua D. Baker, 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 19th day
of January, 2023.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Tre’Bion Lindsay X kingspaladin@yahoo.com
Lee Anne Murray X leeamurray@feeneymurray.com
trp@feeneymurray.com
Joshua D. Baker, 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
Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov