# BURDESHAW, CHARLES v. SCOTT MANAGEMENT, LLC > Tennessee Court of Workers' Compensation Claims · November 21, 2023 · 2023 TN WC 83 URL: https://www.frixlaw.com/law-library/cases/9901539 ## Case - **Court:** Tennessee Court of Workers' Compensation Claims - **Decided:** November 21, 2023 - **Citations:** 2023 TN WC 83 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Lisa A. Lowe - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9901539 ## Opinion text FILED Nov 21, 2023 04:11 PM(ET) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT KNOXVILLE CHARLES BURDESHAW, ) Docket No. 2022-03-0262 Employee, ) v. ) SCOTT MANAGEMENT, LLC, ) State File No. 71846-2021 Employer, ) And ) AMTRUST NORTH AMERICA, ) Judge Lisa A. Lowe Carrier. ) COMPENSATION ORDER GRANTING SUMMARY JUDGMENT The Court heard Scott Management, LLC’s, Motion for Summary Judgment on November 21, 2023. Mr. Burdeshaw did not file a response or participate in the hearing. Scott Management contends no genuine issue of material fact exists because Mr. Burdeshaw cannot meet his burden of proving causation. The Court grants the motion. History of Claim Mr. Burdeshaw worked for Scott Management as an over-the-road truck driver, which required loading and unloading his truck. From May to August 2021, Mr. Burdeshaw received two injections and treatment for left-shoulder degenerative osteoarthritis with impingement from his personal physician. On September 7, 2021, while loading laptops into a shipping container at Turbo Data Networks, Mr. Burdeshaw felt a sharp pain in his left shoulder and arm. A Turbo Data Networks employee witnessed the incident and emailed Scott Management to report it. Scott Management offered a panel of physicians. Mr. Burdeshaw selected Dr. Brian Holloway, who diagnosed left rotator cuff strain and biceps tendon rupture with impingement and treated him conservatively. Because of Mr. Burdeshaw’s unhappiness with Dr. Holloway, Scott Management gave him a second panel, and Mr. Burdeshaw selected Dr. John Reynolds. 1 Dr. Reynolds ordered an MRI that revealed a rotator cuff tear and biceps tendon rupture that he said was “likely sustained at the time of the injury . . . and [Mr. Burdeshaw] may have significant rotator cuff pathology.” Later, however, Scott Management sent Dr. Reynolds a causation questionnaire, and he changed his opinion, responding that he did not believe Mr. Burdeshaw’s employment primarily caused his condition. The Court denied benefits after an Expedited Hearing, since Dr. Reynold’s opinion was the only expert medical opinion in the record. Then the Court issued a Scheduling Order requiring medical expert witness depositions to be completed by September 15, 2023. Mr. Burdeshaw did not take any medical expert witness depositions, which prompted Scott Management to file this motion. In support, Scott Management relies on Dr. Reynolds’s causation questionnaire response and the fact that Mr. Burdeshaw has no medical proof relating his injury to his employment. Law and Analysis Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. As to the record, Rule 56.04 allows a court to consider only pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. Tenn. R. Civ. P. 56.04 (2023). As the moving party, Scott Management must do one of two things to prevail on its motion: (1) submit affirmative evidence that negates an essential element of Mr. Burdeshaw’s claim, or (2) demonstrate that Mr. Burdeshaw’s evidence is insufficient to establish an essential element of his claim. Tenn. Code Ann. § 20-16-101 (2023); see also Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). According to section 50-6-102(12), an injury must arise primarily out of and in the course and scope of employment to be compensable. To prove this, an employee must show “by a preponderance of the evidence that the employment contributed to more than fifty percent (50%) in causing the injury considering all causes.” Tenn. Code Ann. § 50- 6-102(12)(B). This requires an expert medical opinion. To prove Mr. Burdeshaw’s injury did not arise from his employment, Scott Management relies on Dr. Reynolds’s letter. Under Rule 56, the Court cannot consider the letter as proof supporting the summary judgment because it is not an affidavit or deposition testimony. Thus, Scott Management has not submitted affirmative evidence that negates Mr. Burdeshaw’s claim. However, Mr. Burdeshaw did not provide any expert medical proof to support 2 causation in response to the motion for summary judgment. It was his duty to do so. See Tenn. R. Civ. P. 56.06 (prohibiting the party opposing summary judgment from relying on “mere allegations” and requiring affidavits or other proof to defend against the motion.). Because he failed to submit any expert medical proof, Scott Management has demonstrated the insufficiency (or non-existence) of Mr. Burdeshaw’s causation evidence. Therefore, Scott Management is entitled to summary judgment as a matter of law. IT IS, THEREFORE, ORDERED as follows: 1. Mr. Burdeshaw’s claim is dismissed with prejudice. The Compensation Hearing set for December 13, 2023, is canceled. 2. Unless appealed, this order shall become final in thirty days. 3. The Court assesses the $150.00 filing fee against Scott Management, for which execution might issue as necessary. Scott Management shall pay the filing fee to the Court Clerk within five business days of the order becoming final. 4. Scott Management shall file Form SD-2, Statistical Data form, with the Court Clerk within five business days of this order becoming final. ENTERED November 21, 2023. _____________________________________ JUDGE LISA A. LOWE Court of Workers’ Compensation 3 CERTIFICATE OF SERVICE I certify that a copy of this Order was sent as indicated on November 21, 2023. Name Mail Email Service sent to: Charles Burdeshaw, X X P.O. Box 1513 Employee Kodak, TN 37764 charlesburdeshaw2@gmail.com Attorney Uzelac X jauzelac@mijs.com Employer’s Attorney _____________________________________ PENNY SHRUM, COURT CLERK wc.courtclerk@tn.gov 4 Compensation Order Right to Appeal: If you disagree with this Compensation Order, you may appeal to the Workers’ Compensation Appeals Board. To do so, you must: 1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the Court of Workers’ Compensation Claims within thirty calendar days of the date the Compensation 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 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 are responsible for ensuring a complete record is presented on appeal. The Court Clerk will prepare the technical record and exhibits for submission to the Appeals Board, and you will receive notice once it has been submitted. If no court reporter was present at the hearing, 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 you must file it with the Court Clerk within fifteen calendar days of filing the Notice of Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both parties within fifteen calendar days of filing the Notice of Appeal. The statement of the evidence must convey a complete and accurate account of the testimony presented at 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 must 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. You have fifteen calendar days after the date of that notice to file a brief to the Appeals Board. See the Rules governing the Workers’ Compensation Appeals Board on the Bureau’s website 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. Tenn. Code Ann. § 50-6- 239(c)(7). For self-represented litigants: Help from an Ombudsman is available at 800-332-2667. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9901539. Public record. Not legal advice.