The opinion
FILED
May 25, 2023
07:18 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Eboni Harris ) Docket No. 2021-05-1136
)
v. ) State File No. 20643-2021
)
Vanderbilt University Medical Center )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Dale A. Tipps, Judge )
Affirmed and Certified as Final
In this compensation appeal, the employee asserts the trial court erred in granting the
employer’s motion for summary judgment and dismissing her case. Having carefully
reviewed the record, we affirm the trial court’s determinations and certify its compensation
order as final.
Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge Pele I. Godkin and Judge Meredith B. Weaver joined.
Eboni Harris, La Vergne, Tennessee, employee-appellant, pro se
Nathaniel Cherry, Nashville, Tennessee, for the employer-appellee, Vanderbilt University
Medical Center
Memorandum Opinion 1
Eboni Harris (“Employee”) worked for Vanderbilt University Medical Center
(“Employer”) as a certified nursing assistant and caregiver. On February 28, 2021,
Employee slipped and fell while at work, reporting pain and other symptoms in her neck,
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).
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back, left arm, and left shoulder. 2 Employer accepted the compensability of the accident
and initiated medical treatment. It provided Employee a panel of medical providers from
which she selected Vanderbilt Occupational Health Clinic. At her initial visit, Employee
reported aggravating her chronic left-sided neck pain. She also described radiating pain
from her neck to her upper left arm and her upper back and complained of left wrist and
hand pain.
In our opinion following the appeal of an expedited hearing order in this case, we
summarized the medical information submitted to the trial court as follows:
After an initial evaluation, a nurse practitioner at the Occupational
Health Clinic referred Employee to Dr. Paul Rummo, an osteopathic
physician, who had previously treated Employee’s cervical spine condition.
When Dr. Rummo saw Employee on March 8, Employee complained of left
shoulder, neck, and back pain. During his physical examination, Dr. Rummo
noted normal range of motion in the lumbar and cervical spines. X-rays
showed minimal degenerative changes in the cervical spine but no
osteoarthritic changes in the left shoulder. Dr. Rummo diagnosed a left
trapezius strain that he concluded was more than 50% related to the work
injury. He also noted preexisting congenital conditions. As a result of
Employee’s work-related injury, Dr. Rummo prescribed medication and
physical therapy for the neck and left shoulder and recommended she return
to normal work duties.
In April 2021, Employee saw Dr. Nanette Dendy at the VUMC Adult
Village at Vanderbilt to establish primary care treatment. 3 Dr. Dendy
observed that Employee had previously undergone surgery to repair a Chiari
malformation and was also being treated by Dr. Rummo for her trapezius
strain. 4 At that visit, Employee complained of daily headaches and noted she
had not been evaluated by a neurologist. Dr. Dendy diagnosed migraine
headaches and prescribed medications to treat Employee’s condition.
2
Employee has asserted in several filings that she also experienced a work-related injury in July 2019 when
she was attacked by a patient. However, that alleged incident is not part of the current claim and was not
litigated by the parties in this cause of action.
3
A dispute arose regarding whether Employee’s visits with Dr. Dendy were authorized as a result of her
current workers’ compensation claim. Employee asserted in her Rule 72 Declaration that she was instructed
by Employer to “pick” a primary care physician from a “panel/book/phone number.” Employer submitted
a Rule 72 Declaration of Christyl Baber, a claims representative, who denied authorizing appointments with
Dr. Dendy and denied providing a panel that included Dr. Dendy as an option.
4
A Chiari malformation is “a condition in which brain tissue extends into the spinal canal.” See “Chiari
Malformation,” Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/chiari-malformation/
symptoms-causes/syc-20354010 (last visited May 16, 2023).
2
Employee returned to Dr. Dendy’s office in May with complaints of ongoing
headaches, and she was diagnosed with occipital neuralgia. Dr. Dendy
referred her for a brain MRI and noted she had an upcoming neurology
appointment. In June, Dr. Dendy noted Employee’s brain MRI was
unchanged from the previous study.
On July 27, 2021, Employee was evaluated by Dr. Shilpi Mittal, a
neurologist, whom she selected from Employer’s panel. According to Dr.
Mittal’s report, Employee reported having “pain issues” since being attacked
by patients in 2018 and 2019. Following those incidents, she experienced
what she described as “ice pick headaches.” After undergoing surgery in
December 2020 to repair the Chiari malformation, the February 2021
incident occurred, which, according to Employee, resulted in her pain
“restarting.” Dr. Mittal diagnosed “intractable chronic migraines,” “chronic
tension-type headaches,” and “bilateral occipital neuralgia” but did not note
the cause or causes of these conditions in her report. Dr. Mittal prescribed
medications to treat these conditions.
In her September 24, 2021 report, Dr. Dendy noted Employee
“[w]ould like to return to work without restrictions.” According to Dr.
Dendy, Employee “has been able to zip line on vacation and is doing normal
activities.” Moreover, Employee reported her chronic headaches were better
controlled with medications. Dr. Dendy released Employee to return to work
without restrictions as of that date.
In November 2021, Employee was terminated “for excessive tardiness
and insubordination,” according to the Rule 72 Declaration of Employer’s
Manager of HR Operations. On December 10, 2021, Employee returned to
Dr. Dendy, complaining of increased stress and worse migraines after losing
her job. She acknowledged using a medication more than was prescribed in
an effort to treat her headaches. Dr. Dendy noted she had a neurology follow-
up in February. At that February 3, 2022 neurology visit, the nurse
practitioner recommended both pharmacologic and non-pharmacologic
therapies to treat Employee’s chronic headaches but did not alter the
diagnosis or treatment plan.
Harris v. Vanderbilt Univ. Med. Ctr., No. 2021-05-1136, 2022 TN Wrk. Comp. App. Bd.
LEXIS 34, at *2-5 (Tenn. Workers’ Comp. App. Bd. Aug. 9, 2022).
With respect to the issue of causation, Dr. Mittal completed a questionnaire dated
March 24, 2022, in which she indicated that none of the conditions for which she treated
Employee were more than fifty percent caused by the February 28, 2021 work injury. She
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further indicated that she did not take Employee out of work for any period of time and did
not recommend any work restrictions as a result of that accident.
In March 2023, Employer filed a motion for summary judgment, asserting that
Employee had presented no evidence that any of her alleged injuries or medical conditions
arose primarily out of the February 2021 work accident. Employer also filed a statement
of undisputed material facts, and it included a notice of hearing prominently displayed on
the face of its motion as required by applicable rules. Employer also submitted the
deposition testimony of Dr. Mittal in support of its motion.
Employee did not respond to Employer’s statement of undisputed material facts as
required by Rule 56.03 of the Tennessee Rules of Civil Procedure. She did, however, file
a motion asking the court to order compensation. Attached to her motion were certain
medical records she claimed supported her motion, but they did not include an affidavit
from any medical provider authenticating the records. Employee submitted no other
affidavits or admissible evidence in response to Employer’s motion.
Thereafter, the trial court granted the motion for summary judgment and dismissed
Employee’s petition, concluding that Employer had submitted a properly-supported motion
and Employee had not met her burden of coming forward with any admissible evidence of
a disputed material fact. Employee has appealed.
We first note that, contemporaneously with the filing of her notice of appeal,
Employee submitted medical documentation that was not admitted as evidence by the trial
court. On appeal, we cannot consider documentation that was not properly admitted into
evidence for the trial court’s consideration. See, e.g., Hadzic v. Averitt Express, No. 2014-
02-0064, 2015 TN Wrk. Comp. App. Bd. LEXIS 14, at *13 n.4 (Tenn. Workers’ Comp.
App. Bd. May 18, 2015). Second, when a trial court has granted a motion for summary
judgment, we are required to “make a fresh determination of whether the requirements of
Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied.” Rye v. Women’s
Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). In reviewing a trial
court’s decision on a motion for summary judgment, we are to review the evidence in a
light most favorable to the nonmoving party and draw all reasonable inferences in favor of
the nonmoving party. Lyles v. Titlemax of Tenn., Inc., No. W2017-00873-SC-WCM-WC,
2018 Tenn. LEXIS 520, at *5 (Tenn. Workers’ Comp. Panel Sept. 14, 2018).
Here, we agree with the trial court’s determination that Employee did not come
forward with any admissible evidence creating a genuine issue of material fact regarding
medical causation, which is an essential element of Employee’s claim. Employer
submitted the testimony of Dr. Mittal, who was unable to state that any of Employee’s
medical conditions arose primarily out of the work accident. Employee offered no expert
testimony or other admissible evidence to refute Dr. Mittal’s opinion. The trial court
properly declined under Rule 56.04 of the Tennessee Rules of Civil Procedure to consider
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the medical records submitted by Employee. As we have explained previously, at the
summary judgment stage of a case, unauthenticated medical records, standing alone, are
not included in the list of things a trial court can consider in response to a dispositive
motion. Sadeekah v. Abdelaziz d/b/a Home Furniture and More, No. 2020-06-0218, 2021
TN Wrk. Comp. App. Bd. LEXIS 19, at *13 (Tenn. Workers’ Comp. App. Bd. June 22,
2021). Thus, for purposes of the motion for summary judgment, Employer’s statements of
undisputed materials facts were unrefuted by Employee, and Employee submitted no
evidence to create a genuine issue of material fact regarding the essential element of
medical causation.
Finally, our ability to conduct meaningful appellate review is significantly
hampered when an appellant fails to offer any substantive argument on appeal. We note
that Employee is self-represented in this appeal, as she was in the trial court. 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). Yet, we “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). In short, we
conclude the evidence supports the trial court’s order granting summary judgment.
For the foregoing reasons, we affirm the trial court’s order in all respects and certify
it as final for purposes of further appellate review. Costs on appeal are taxed to Employee.
5
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Eboni Harris ) Docket No. 2021-05-1136
)
v. ) State File No. 20643-2021
)
Vanderbilt University Medical Center )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Dale A. Tipps, 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 25th day
of May, 2023.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Eboni Harris X ebonianderson95@gmail.com
Nathaniel Cherry X ncherry@howardtatelaw.com
Dale A. Tipps, 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