Cosey, Marcus v. Jarden Corporation ( 2018 )


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  • FILED
    Sep 17, 2018
    01:13 PM(ET)
    TENNESSEE COURT OF
    WORKERS' COMPENSATION
    CLAIMS
    TENNESSEE BUREAU OF WORKERS’ COMPENSATION
    IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
    AT CHATTANOOGA
    Marcus Cosey, ) Docket No.: 2017-01-0053
    Employee, )
    V. )
    Jarden Corporation, ) State File No.: 58146-2016
    Employer, )
    And )
    American Zurich Insurance, ) Judge Audrey A. Headrick
    Carrier. )
    )
    COMPENSATION HEARING ORDER
    GRANTING MOTION FOR SUMMARY JUDGMENT
    This matter came before the Court on September 13, 2018, for hearing on the
    Motion for Summary Judgment filed by Jarden Corporation (J arden).
    Procedural History
    The Court summarizes the factual background to this motion as follows. Mr.
    Cosey sustained a crush injury to his left middle and ring fingers on July 3, 2016, while
    performing his job at Jarden. Dr. Jason Rehm, the authorized treating physician, testified
    by Form C-32 Standard Form Medical Report (Form C-32) that Mr. Cosey’s employment
    primarily caused his need for treatment. Jarden accommodated his restrictions until it
    terminated him for cause. Dr. Rehm placed Mr. Cosey at maximum medical
    improvement (MMI) on November 28 and assigned a zero-percent impairment rating
    with no permanent restrictions. He also recommended no further medical treatment.
    Mr. Cosey filed a Petition for Benefit Determination (PBD) on January 26, 2017.
    Jarden later filed a Motion to Dismiss for Failure to Prosecute on August 9. The Court
    ' The Court did not conduct an in-person evidentiary hearing in this case. Instead, the Court gleaned the
    facts from Jarden’s statement of undisputed facts, pleadings, and exhibits.
    |
    granted the motion on October 5 and dismissed Mr. Cosey’s claim without prejudice on
    other grounds.”
    Mr. Cosey refiled a PBD, and the Court entered a Scheduling Hearing Order
    setting the deadline for completion of medical proof on or before September 10. In the
    scheduling order, the Court instructed Mr. Cosey that the burden is on him to obtain
    sufficient medical proof. It stated that medical proof can be obtained by deposition or use
    of the Form C-32. The Court also encouraged Mr. Cosey to contact the Ombudsman
    Program regarding the Court’s procedural rules.
    Jarden filed this summary judgment motion on August 13 along with a statement
    of undisputed facts, a memorandum of law, affidavits of Veatrice Storey and Rick Wiehe,
    Dr. Rehm’s Form C-32, and exhibits. In response, Mr. Cosey filed correspondence with
    no supporting affidavits. He requested that the Court strike Dr. Rehm’s statements from
    the record. As of the summary judgment hearing, Mr. Cosey failed to obtain any medical
    proof.
    Jarden argued the undisputed facts negate essential elements of Mr. Cosey’s claim.
    Specifically, Jarden argued he failed to meet his burden of proving entitlement to
    medical, temporary disability, or permanent disability benefits. Jarden also argued
    summary judgment is appropriate because Mr. Cosey failed to respond to its motion as
    required by Rule 56 and failed to file any sworn affidavits or depositions.
    Law and Analysis
    Under Tennessee Rule of Civil Procedure 56.04, summary judgment is appropriate
    if there is no genuine issue as to any material fact and the moving party is entitled to
    judgment as a matter of law. To meet this standard, Jarden must either: (1) submit
    affirmative evidence that negates an essential element of Mr. Cosey’s claim, or (2)
    demonstrate that his evidence is insufficient to establish an essential element of his claim.
    Tenn. Code Ann. § 20-16-101; see also Rye v. Women’s Care Ctr. of Memphis, MPLLC,
    A77 S.W.3d 235, 264 (Tenn. 2015). If Jarden carries this burden, then Mr. Cosey “may
    not rest upon the mere allegations or denials of [his] pleading” but must respond by
    producing facts showing a genuine issue for trial. Jd.; Tenn. R. Civ. P. 56.06. In other
    words, Mr. Cosey’s response “must do more than simply show that there is some
    metaphysical doubt as to the material facts.” Payne v. D & D Elec., 2017 Tenn. LEXIS
    215, at *8-9 (Tenn. 2017). In reaching its decision, the Court must focus on evidence Mr.
    Cosey presented at the summary judgment stage, “not on hypothetical evidence that
    theoretically could be adduced . . . at a future trial.” Rye, at 265. The Court holds that
    Jarden met its burden of negating an essential element of Mr. Cosey’s claim for medical,
    temporary disability, and permanent disability benefits.
    * Mr. Cosey failed to comply with an Order compelling discovery.
    2
    Since Jarden met its burden, the Court must consider whether Mr. Cosey produced
    facts showing a genuine issue for trial. He failed to respond to the motion as required by
    Rule 56. Although Mr. Cosey filed a letter requesting that the Court strike Dr. Rehm’s
    statements from the record, he filed no sworn affidavits and/or depositions showing a
    genuine issue for trial. While his failure to respond does not mandate entry of summary
    judgment, it does prevent him from disputing any of the facts asserted in the statement of
    material facts. See United Serv. Inds., Inc. v. Sloan, 1988 Tenn. App. LEXIS 592, *4
    (Tenn. Ct. App. Sept. 28, 1988) (“An adverse party’s failure to respond to a motion for
    summary judgment does not relieve the moving party of the burden of establishing an
    entitlement to judgment as a matter of law; rather, an absence of response only precludes
    factual disputes.”’).
    Although Mr. Cosey represents himself in this claim, he still “must comply with
    the same standards to which lawyers must adhere.” Burnette v. K-Mart Corp., 2015 TN
    Wrk. Comp. App. Bd. LEXIS 2, at *6 (Jan. 20, 2015). Further, courts must “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.”
    Id. Here, Mr. Cosey
    failed to produce any medical proof regarding proof of permanent
    impairment, entitlement to temporary disability benefits, or the need for further treatment.
    Accordingly, the Court accepts the facts provided by Jarden and holds that Mr. Cosey
    failed to present facts sufficient to establish a genuine issue for trial.
    The Court notes Mr. Cosey had ample time to obtain evidence essential to support
    his claim since the Court dismissed his initial PBD without prejudice. Additionally, the
    Court instructed him to consult with the Ombudsman Program and the Court’s website
    and urged him to become familiar with the procedural and evidentiary rules of the Court.
    Despite the Court’s urging, Mr. Cosey presented no defense at the motion hearing other
    than providing an oral summary of the letter he filed seeking to have the Court strike Dr.
    Rehm’s statements from the record. Mr. Cosey’s statements during oral argument and
    correspondence filed without supporting affidavits are insufficient to establish a factual
    dispute. Because he failed to produce facts showing a genuine issue of material fact for
    trial, he failed to carry his burden.
    IT IS, THEREFORE, ORDERED AS FOLLOWS:
    1. The Court grants Jarden’s motion for summary judgment and dismisses Mr.
    Cosey’s claim with prejudice to its refiling.
    2. Absent an appeal, this order shall become final in thirty days.
    3. The Court assesses the $150.00 filing fee against Jarden under Tennessee
    Compilation Rules and Regulations 0800-02-21-.07, for which execution may
    issue as necessary.
    4. Jarden shall pay the filing fee within five business days of the order becoming
    final.
    5. Jarden shall file form SD-1 within ten business days of this order becoming final.
    It is so ORDERED.
    ENTERED September 17, 2018.
    ( Loves iN Ih a tCOX
    Audrey A. Headrick
    Workers’ Compensation Judge
    CERTIFICATE OF SERVICE
    I hereby certify that a true and correct copy of this Order was sent to the following
    recipients by the following methods of service on September 17, 2018.
    Name Certified | First | Via | Service sent to:
    Mail Class | Email
    Mail
    Marcus Cosey, xX X | 5828 Pinelake Drive
    Employee . Harrison, TN 37341
    macolicious30@gmail.com
    marcuscosey@gmail.com
    Catheryne Grant, X | catherynelgrant@feeneymurray.com
    Victoria Dutschmann, victoriaedutschmann@feeneymurray.com
    Employer Attorneys
    HeamySiduar wy pumrianurel)
    PENNY SHRUM, COURT CLERK!
    we.courtclerk@tn. gov
    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: “Compensation Hearing 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 fiffeen 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.
    Tennessee Bureau of Workers’ Compensation
    220 French Landing Drive, I-B
    Nashville, TN 37243-1002
    AFFIDAVIT OF INDIGENCY
    800-332-2667
    , having been duly sworn according to law, make oath that
    because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
    waived. The following facts support my poverty.
    1. Full Name:
    3. Telephone Number:
    5. Names and Ages of All Dependents:
    6. | am employed by:
    2, Address:
    4, Date of Birth:
    Relationship:
    Relationship:
    Relationship:
    Relationship:
    My employer's address is:
    My employer’s phone number is:
    7. My present monthly household income, after federal income and social security taxes are deducted, is:
    $
    8. | receive or expect to receive money from the following sources:
    AFDC $
    SS $
    Retirement $
    Disability $
    Unemployment $
    Worker's Comp.$
    Other $
    LB-1108 (REV 11/J5)
    per month
    per month
    per month
    per month
    per month
    per month
    per month
    beginning
    beginning
    beginning
    beginning
    beginning
    beginning
    beginning
    RDA 11082
    9. My expenses are:
    Rent/House Payment $
    Groceries $
    Electricity
    Water
    Gas
    Car
    $
    $
    $
    Transportation $
    $
    Other $
    10. Assets:
    Automobile
    Checking/Savings Acct.
    House
    Other
    11. My debts are:
    Amount Owed
    $
    $
    $
    permonth Medical/Dental $ per month
    per month Telephone 3... per month
    per month School Supplies$_ sper month
    per month Clothing $ per month
    per month Child Care Bn per month
    per month Child Support $ ____ per month
    per month
    per month (describe: }
    (FMV)
    (FMV)
    Describe:
    To Whom
    | hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
    and that | am financially unable to pay the costs of this appeal.
    APPELLANT
    Sworn and subscribed before me, a notary public, this
    day of
    , 20
    NOTARY PUBLIC
    My Commission Expires:
    LB-1108 (REV 11/15)
    RDA 11082
    

Document Info

Docket Number: 2017-01-0053

Judges: Audrey A. Headrick

Filed Date: 9/17/2018

Precedential Status: Precedential

Modified Date: 1/9/2021