Gookenbarger, Paul v. The Kroger Company , 2022 TN WC 77 ( 2022 )

FILED
Nov 04, 2022
07:14 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
PAUL GOOKENBARGER, ) Docket No. 2021-03-0696
Employee, )
v. )
THE KROGER COMPANY )
Employer, ) State File No. 59262-2018
and )
TROY HALEY, )
Administrator of the Bureau of )
Workers’ Compensation, Subsequent ) Judge Brian K. Addington
Injury Fund. )
COMPENSATION ORDER GRANTING SUMMARY JUDGMENT
The Court heard Kroger’s Motion for Summary Judgment on November 1, 2022.
Kroger contends summary judgment is warranted because more than a year lapsed between
its final payment and the date Mr. Gookenbarger filed a Petition for Benefit Determination.
Mr. Gookenbarger did not respond to the motion. The undisputed proof is that he did not
file his petition within one year of Kroger’s last payment. Therefore, Kroger is entitled to
summary judgment.
History of Claim
Mr. Gookenbarger alleged a low-back injury while lifting boxes and pallets at
Kroger on July 13, 2018. Kroger provided medical treatment including surgery. On
September 11, 2019, Dr. Patrick Bolt placed Mr. Gookenbarger at maximum medical
improvement and assigned a nine-percent impairment.
On October 9, Kroger mailed an offer to settle Mr. Gookenbarger’s claim. The next
day, it issued payment for Dr. Bolt’s September office visit. Kroger sent another letter
attempting to settle his claim on April 6, 2020. Mr. Gookenbarger did not respond. Once a
year passed after the last payment, Kroger closed its file.
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However, Mr. Gookenbarger later asked for additional treatment. Kroger denied his
request, and Mr. Gookenbarger filed the present petition on July 9, 2021.
After the Scheduling Order, Kroger moved for summary judgment arguing Mr.
Gookenbarger’s case was barred by the statute of limitations. In support of its motion,
Kroger filed the following statement of undisputed facts.
1. Paul Gookenbarger reportedly suffered an injury on or around July 18, 2018.
2. On September 11, 2019, Dr. Bolt placed the employee at maximum medical
improvement with 9% permanent partial impairment to the body as a whole.
3. The employee has not treated with Dr. Bolt since the September 11, 2019
appointment.
4. Kroger’s last indemnity payment to the employee was March 29, 2019.
5. Kroger’s last payment for medical benefits was made on October 10, 2019, to
Dr. Bolt’s office for the employee’s September 11, 2019 appointment.
6. On July 9, 2021, the employee filed a Petition.
Kroger contends these facts entitle it to summary judgment because they show no
genuine issue of material fact exists regarding Mr. Gookenbarger’s failure to file a petition
within one year of Kroger’s last payment on the claim.
Mr. Gookenbarger neither responded to Kroger’s motion nor did he file affidavits
or depositions to support his claim. He explained at the summary judgment hearing that he
thought he would always have open medical benefits because he suffered an on-the-job
injury.
Law and Analysis
Under Tennessee Rules of Civil Procedure 56.04 (2021), 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.”
To prevail as the party requesting summary judgment, Kroger must do one of two
things: (1) submit affirmative evidence that negates an essential element of Mr.
Gookenbarger’s claim; or (2) demonstrate that Mr. Gookenbarger’s evidence is insufficient
to establish an essential element of his claim. Tenn. Code Ann. § 20-16-101(2022); Rye v.
Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Kroger
does so, Mr. Gookenbarger must then establish that the record contains specific facts upon
which the Court could base a decision in his favor. Rye, at 265.
Turning to the merits of the motion, the Court finds that Kroger proved Mr.
Gookenbarger did not timely file a petition under Tennessee Code Annotated section 50-
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6-203(b)(2), which requires the filing of a petition within one year after the work accident
or within one year after the employer “ceased to make payments of compensation to or on
behalf of the employee.” So, Kroger negated an essential element of Mr. Gookenbarger’s
claim – that he must file his petition within one year of Kroger’s last payment of benefits.
Mr. Gookenbarger offered no evidence on which the Court could rely to find that he did
file his petition within the one-year period.
Therefore, the Court holds no genuine issue of material fact exists as to whether Mr.
Gookenbarger timely filed his petition. Kroger’s motion is granted.
IT IS ORDERED as follows:
1. Mr. Gookenbarger’s claim for workers’ compensation benefits is dismissed with
prejudice to its refiling.
2. Unless appealed, this order shall become final thirty days after entry.
3. The Court taxes a $150.00 filing fee to Kroger under Tennessee Compilation Rules
and Regulations 0800-02-21-.06, payable to the Clerk within five days of this order
becoming final.
4. Kroger shall prepare and submit the SD-2 to the Clerk within ten days of the date of
judgment.
IT IS ORDERED.
ENTERED November 4, 2022.
______________________________________
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
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CERTIFICATE OF SERVICE
I certify that a copy of the order was sent on November 4, 2022.
Name Certified Fax Email Service sent to:
Mail
Paul Gookenbarger, X X 305 Ashley Dr.
Self-Represented Seymour, TN 37865
Employee paul2401@sbcglobal.net
Heather Douglas, X hdouglas@manierherod.com
Jenna MacNair jmacnair@manierherod.com
Employer’s Attorneys
Lindsay Hall, X lindsay.n.hall@tn.gov
Subsequent Injury Fund
Attorney
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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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.