Gibbs, Doris v. Express Services, Inc., aka Express Employment Professionals , 2021 TN WC 227 ( 2021 )

FILED
Sep 14, 2021
11:31 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
DORIS GIBBS, ) Docket No. 2020-03-0219
Employee, )
v. )
EXPRESS SERVICES, INC., aka )
EXPRESS EMPLOYMENT )
PROFESSIONALS, )
Employer, )
NEW HAMPSHIRE INSURANCE ) State File No. 118452-2019
COMPANY, )
Carrier, )
And )
ABIGAIL HUDGENS, Administrator )
of the Bureau of Workers’ )
Compensation and SUBSEQUENT ) Judge Pamela B. Johnson
INJURY FUND. )
COMPENSATION ORDER GRANTING SUMMARY JUDGMENT
Express Services, Inc. (ESI) and the Subsequent Injury Fund (SIF) filed this motion
requesting summary judgment on grounds that no genuine issues of material fact exist as
to whether Ms. Gibbs’s right-leg injury arose primarily out of her employment. They
supported their position with the causation opinion of an authorized physician. Ms. Gibbs
responded by presenting a contrary causation opinion from a nurse practitioner and argued
that she suffered a disabling injury at work. For the reasons below, the Court holds that ESI
and SIF are entitled to summary judgment.
History of Claim
On December 12, 2019, Ms. Gibbs struck her right leg on storage totes while
working. Ms. Gibbs selected OrthoTennessee from a panel and began authorized treatment
with Dr. Christina Seaworth.
1
In July 2020, Dr. Seaworth gave a causation opinion for Ms. Gibbs’s injuries. She
testified by affidavit that, “It is my opinion, within a reasonable degree of medical certainty,
and considering all causes, that Ms. Gibbs’ complaints and symptoms related to her right
lower extremity are at least 50% related to her pre-existing complaints and symptoms.”
On March 5, 2021, Dr. Seaworth provided a revised affidavit that maintained her
previous opinions. She further testified that Ms. Gibbs’s “current complaints and
symptoms are more than 50% related to her pre-existing complaints and symptoms.” Dr.
Seaworth concluded “within a reasonable degree of medical certainty, and considering all
causes, [Ms. Gibbs’s] December 12, 2019 incident at work was not the primary cause of
any disablement or need for additional treatment.”
Ms. Gibbs filed a Petition for Benefit Determination and later a Request for
Expedited Hearing.1
At the Expedited Hearing, Dr. Seaworth provided the only causation opinion. She
determined that Ms. Gibbs’s right-lower extremity complaints and symptoms were at least
50% related to her pre-existing complaints and symptoms. Additionally, she concluded that
Ms. Gibbs’s current complaints and symptoms were more than 50% related to her pre-
existing complaints and symptoms. Finally, Dr. Seaworth determined that the December
12, 2019 work incident was not the primary cause of Ms. Gibbs’s disablement or need for
additional medical treatment considering all causes. Although Ms. Gibbs treated with
multiple providers for right-leg symptoms since the work incident, she did not present an
opinion from any of them identifying the cause of her ongoing complaints or relating the
need for treatment to work. Accordingly, the Court denied her request for additional
benefits.
In this motion, ESI and SIF argued summary judgment is appropriate because they
affirmatively negated an essential element of Ms. Gibbs’s claim. Specifically, relying on
Dr. Seaworth’s opinions and statements of undisputed facts with citations to the record,
they contend the record shows that Ms. Gibbs did not sustain an injury by accident arising
primarily out of her employment that caused disablement and/or a need for medical
treatment. Therefore, she is not entitled to benefits under Tennessee Workers’
Compensation Law.
1
ESI and SIF filed their first joint Motion for Summary Judgment, which was set by agreement for oral
argument before the Expedited Hearing. After the motion hearing, this Court dismissed this case. Ms. Gibbs
appealed, and the Workers’ Compensation Appeals Board reversed and remanded. On remand, ESI and the
SIF filed their second joint Motion for Summary Judgment. However, the Court elected to decide the
Request for Expedited Hearing, which was pending when the first summary judgment motion was granted.
The Court granted Ms. Gibbs two extensions to respond to the summary judgment motion, ultimately
resetting the motion hearing for September 1, 2021.
2
Ms. Gibbs responded by disagreeing with Dr. Seaworth’s opinions. Without
citations to the record or sworn testimony, Ms. Gibbs argued she did not receive the care
she needed, her pain complaints were ignored, and she continues to have debilitating pain
caused by the work injury. She denied that she had prior injuries or symptoms involving
her right lower extremity.
Ms. Gibbs also offered a C-32 Standard Medical Report from Natasha L. Yucco,
ANP. Ms. Yucco’s curriculum vitae was not attached. Ms. Yucco noted that Ms. Gibbs
reported a December 12, 2019 injury and was evaluated by her practice in March 2020.
Her care to date included evaluations by orthopedic surgery and pain management with a
diagnosis of complex regional pain syndrome. Ms. Yucco concluded that Ms. Gibbs’s
injury resulted in disablement and the need for treatment, and the employment, more likely
than not, was primarily responsible for the injury or primarily responsible for the need for
treatment.
ESI and SIF replied by asserting that Ms. Gibbs failed to show disputed material
facts existed. They argued that the Court should deem their statement of facts undisputed
because Ms. Gibbs failed to provide specific citations to the record as required by
Tennessee Rules of Civil Procedure 56 (2020). Alternatively, they argued Ms. Gibbs did
not introduce any material facts that would make summary judgment inappropriate.
Specifically, ESI and SIF asserted that:
▪ Ms. Gibbs alleged a December 12, 2019 injury.
▪ She received and accepted treatment from Dr. Seaworth, who determined that
Ms. Gibbs’s complaints and symptoms related to her right lower extremity are
at least 50% related to her pre-existing complaints and symptoms.
▪ Dr. Seaworth determined that Ms. Gibbs’s current complaints and symptoms are
more than 50% related to her pre-existing complaints and symptoms.; and,
▪ Dr. Seaworth concluded within a reasonable degree of medical certainty,
considering all causes, that Ms. Gibbs’s December 12, 2019 work incident was
not the primary cause of any disablement or need for treatment.
Further, ESI and SIF argued that Ms. Yucco’s C-32 is inadmissible because she is
a nurse practitioner not a medical doctor, and she did not provide her qualifications, and an
original signature or an affidavit verifying the contents of the report.
Findings of Fact and Conclusions of Law
Summary judgment is appropriate when “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).
3
When a party who does not bear the burden of proof at trial files a motion for
summary judgment ̶ here, ESI and SIF ̶ they must do one of two things to prevail: (1) submit
affirmative evidence that negates an essential element of Ms. Gibbs’s claim, or (2)
demonstrate that Ms. Gibbs’s evidence is insufficient to establish an essential element of
the nonmoving party’s 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 the moving party successfully meets one of those burdens, the nonmoving party
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.
Tenn. R. Civ. P. 56.06. If the nonmoving party fails to do so, “summary judgment, if
appropriate, shall be entered against the [nonmoving] party.” Id.The Workers’ Compensation Law requires an employer to furnish medical
treatment made reasonably necessary by a work injury. Tenn. Code Ann. § 50-6-
204(a)(1)(A). The injury must arise primarily out of employment and cause the need for
medical treatment. Specifically, it must be shown to a reasonable degree of medical
certainty that the injury contributed more than fifty percent in causing the need for medical
treatment. “Shown to a reasonable degree of medical certainty” means that, in the opinion
of the physician, it is more likely than not considering all causes. See generally Tenn. Code
Ann. § 50-6-102(14).
As to this motion, ESI and SIF bear the initial burden of proving the basis of their
claim to summary judgment and identifying those portions of the pleadings and documents
which they believe demonstrate the absence of a genuine issue of material fact.
ESI and SIF argue they met their burden to affirmatively negate an essential element
of Ms. Gibbs’s claim with the affidavit from Dr. Seaworth. Dr. Seaworth stated, “[I]t is my
opinion, within a reasonable degree of medical certainty, and considering all causes, that
Ms. Gibbs’s December 12, 2019 incident at work was not the primary cause of any
disablement or need for additional medical treatment.” (Emphasis added).
Thus, the Court holds that ESI and SIF have met their burden and affirmatively
negated an essential element of Ms. Gibbs’s claim. The burden now shifts to Ms. Gibbs to
show that there is a genuine issue for trial. On the causation issue, she attempted to meet
her burden by filing the C-32 from a nurse practitioner.
In lieu of a deposition, a C-32 may be used if certain requirements are met. See
Tenn. Code Ann. § 50-6-235(c). To be admissible, the C-32 must bear the original
signature of the physician or include an originally-signed affidavit from the physician
verifying the contents of the report. Additionally, the physician making the C-32 must
provide his/her qualifications.
4
However, this Court cannot consider Ms. Yucco’s causation opinion because she is
not a medical doctor. See Adiole v. Logan Senior Care, LLC, 2019 TN Wrk. Comp. App.
Bd. LEXIS 78, at *6 (Dec. 16, 2019) (“A physician’s assistant, like a nurse practitioner, is
not qualified to offer an expert opinion on medical causation.”); see also Dorsey v.
Amazon.com, Inc., 2015 TN Wrk. Comp. App. Bd. LEXIS 13, at *9 (May 14, 2015). In
addition, Ms. Yucco’s C-32 is inadmissible because an original signature and statement of
qualifications were not provided.
Considering this motion in the light most favorable to Ms. Gibbs, the Court finds
that Ms. Gibbs did not set forth specific facts showing that genuine issues of material fact
exist for trial. Dr. Seaworth’s affidavits clearly state her opinion that the work incident was
not the primary cause of any disablement or need for additional treatment, i.e., the injury
did not arise primarily out of the employment. With Dr. Seaworth being the only qualified
medical opinion before the Court, her statement sufficiently negates the element of
causation. See Beecher v. McKesson Corp., 2017 TN Wrk. Comp. App. Bd. LEXIS 41, at
*9-10 (July 21, 2017). For these reasons, the Court holds that ESI and SIF are entitled to
summary judgment as a matter of law.
IT IS, THEREFORE, ORDERED as follows:
1. The Court dismisses Ms. Gibbs’s claim with prejudice to its refiling.
2. Unless appealed, this order shall become final in thirty days.
3. The Court assesses the $150.00 filing fee against ESI, for which execution might
issue as necessary. ESI shall pay the filing fee to the Court Clerk within five business
days of the order becoming final.
4. ESI shall file Form SD-2, Statistical Data form, with the Court Clerk within five
business days of this order becoming final.
ENTERED September 14, 2021.
_____________________________________
JUDGE PAMELA B. JOHNSON
Court of Workers’ Compensation Claims
5
CERTIFICATE OF SERVICE
I certify that a copy of this order was sent as indicated on September 14, 2021.
Name US Email Service sent to:
Mail
Doris Gibbs, X X 333 Magnolia Street
Self-Represented Claxton, GA 30417
Employee dorishall.0007@yahoo.com
Garrett P. Franklyn, X gpfranklyn@mijs.com
Employer’s Attorney
Allison Lowry, X allison.lowry@tn.gov
Fund Attorney
_____________________________________
PENNY SHRUM, Court Clerk
WC.CourtClerk@tn.gov
6
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