Johnson, Landon v Loomis Armored , 2018 TN WC 205 ( 2018 )

FILED
Dec 17, 2018
04:12 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
LANDON JOHNSON, ) Docket No. 2017-08-0367
Employee, )
V. )
LOOMIS ARMORED, ) State File No. 94100-2016
Employer, )
and )
ACE AMERICAN INS. CO., ) Judge Amber E. Luttrell
Carrier. )
COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT
This matter came before the Court after remand from the Appeals Board on
Loomis Armored’s Motion for Summary Judgment. For the reasons below, the Court
holds Loomis is entitled to summary judgment.
Procedural History
Mr. Johnson worked for Loomis as an armed guard. He alleged injuries from a
December 5, 2016 work incident. He claimed back and neck injuries from pushing a
heavy cart of coins.
Loomis provided authorized treatment for Mr. Johnson’s back with Dr. Fereidoon
Parsioon, his panel-selected physician. Mr. Johnson informed Dr. Parsioon of his pre-
existing history of back injuries, which included a 2015 back surgery. Following a review
of his medical records and diagnostic studies, Dr. Parsioon concluded that the new MRI
indicated no anatomic change in his spine and contained “exactly the same findings at
L5/S1 that were present in 2015.” He concluded that Mr. Johnson’s back problem was
unrelated to his work injury. He did not believe he needed further neurosurgical
intervention and placed him at maximum medical improvement with a zero-percent
impairment rating. Based on Dr. Parsioon’s opinion, Loomis denied further medical and
temporary disability benefits. Thus, Mr. Johnson sought treatment with unauthorized
providers for his back and neck.
Following an expedited hearing, the Court entered an order denying benefits.
Specifically, the Court determined Dr. Parsioon provided the only medical proof
addressing medical causation for Mr. Johnson’s back and concluded his condition was
unrelated to work. Absent countervailing medical proof, the Court held he was not likely
to prevail at trial in proving his back condition arose primarily out of and in the course
and scope of his work. Regarding his neck, the Court held Mr. Johnson did not introduce
any evidence to support his claim of injury; thus he did not meet his burden of showing
he was likely to succeed in establishing his work injury was the primary cause of his neck
condition.
Following the expedited hearing, the Court held a status hearing where Mr.
Johnson informed the Court that he is still treating. He indicated he sought treatment at an
emergency room because he does not have health insurance to see a physician. Because
Mr. Johnson had not completed medical treatment for his alleged injuries, the Court held
the parties were not ready to set the deadlines included in a scheduling order and reset the
status hearing.
Loomis then filed its Motion for Summary Judgment, Statement of Undisputed
Facts, Memorandum in Support, and requested a hearing. At a subsequent status hearing,
Mr. Johnson again informed the Court that he was still seeking treatment.
Mr. Johnson did not file a response to Loomis’ Statement of Undisputed Facts as
required by Rule 56. However, he filed a response opposing summary judgment. He
attached a record from Dr. Gary Felsberg, a Board-certified neuro radiologist, who
reviewed and compared his MRI studies. Dr. Felsberg provided no causation opinion in
the report.
On September 6, 2018, this Court denied summary judgment and held that ruling
on the merits of the motion before Mr. Johnson completed medical treatment and before
he was subject to the deadlines of a scheduling order would be unjust to Mr. Johnson and
would frustrate the purpose of Tennessee Compilation Rule & Regulations 0800-02-21-
.13 governing scheduling hearings. Loomis filed a timely appeal, and the Appeals Board
vacated this Court’s order and remanded it for consideration on the merits.
Loomis’ Motion
Loomis argued Mr. Johnson cannot satisfy his burden of proof that his injury arose
primarily out of and the in the course and scope of his employment. It attached an
affidavit from Dr. Parsioon, the authorized treating physician, that confirmed his opinion
that Mr. Johnson’s back and neck problems “are not causally related to his stated on the
job injury of December 5, 2016, but are related to a pre-existing condition which was
present less than a month prior to the stated work injury as indicated in Dr.
Schroerlucke’s medical record of November 11, 2016.”
Loomis contended it is entitled to summary judgment. It cited Beecher v.
McKesson Corp., 2017 Tenn. Wrk. Comp. App. Bd. LEXIS 41 (July 21, 2017), and
Payne v. D and D Elec., 2016 TN Wrk. Comp. App. Bd. LEXIS 21 (May 4, 2016), for
the proposition that summary judgment is appropriate when an employee fails to produce
expert medical proof of causation that counters an employer’s proof to the contrary.
Regarding Dr. Felsberg’s record, Loomis argued that the record does not contain
sworn testimony from him to overcome a motion for summary judgment. Moreover, it
argued that the record fails to contain any opinion causally relating Mr. Johnson’s MRI
findings to his work injury.
Law and Analysis
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.” Tenn. R. Civ. P. 56.04.
As the moving party, Loomis must do one of two things to prevail on its motion:
(1) submit affirmative evidence that negates an essential element of Mr. Johnson’s claim,
or (2) demonstrate that Mr. Johnson’s evidence is insufficient to establish an essential
element of his claim. See Tenn. Code Ann. § 20-16-101 (2018); see also Rye v. Women’s
Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Loomis is
successful in meeting this burden, Mr. Johnson must then establish that the record
contains specific facts upon which the Court could base a decision in his favor. Rye, at
265,
Mr. Johnson filed a response opposing Loomis’ motion for summary judgment;
however, he failed to meet the requirement of Rule 56 by responding to Loomis’
statement of undisputed material facts. Therefore, the Court finds the facts are undisputed
and turns to the issue of whether under Rule 56 summary judgment is “appropriate.”
The Court finds Loomis successfully negated the essential element of medical
causation. Dr. Parsioon unequivocally concluded in his affidavit that Mr. Johnson’s
alleged back and neck injuries did not arise out of his work injury, but instead are related
to a pre-existing condition. As the panel-selected authorized treating physician, Dr.
Parsioon’s causation opinion is afforded a presumption of correctness. See Tenn. Code
Ann. §50-6-102(14)(E)(2018). Moreover, Mr. Johnson failed to produce any expert
medical evidence to support his allegation that his back and neck injuries arose primarily
out of his employment.
In responding to Loomis’ motion, Mr. Johnson must “demonstrate the existence of
specific facts in the record which could lead a rational trier of fact to find in his favor[.]”
Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 265 (Tenn. 2015).
Further, he must do more than simply offer hypothetical evidence; he must produce
3
evidence at this summary judgment stage of the case that is sufficient to establish the
essential elements of his workers’ compensation claim. /d. at 265.
Here, Mr. Johnson produced no material facts to lead the Court to find in his favor.
Instead, he submitted a radiology record from Dr. Feldsberg and argued that he believed
his current condition arose out of his work injury and that Dr. Parsioon was not credible.
Although the Court is aware of Mr. Johnson’s sincerely held belief that his back
and neck conditions arose primarily out of his work injury at Loomis, his lay opinion
alone is legally insufficient to refute Dr. Parsioon’s conclusions. Further, the Court finds
Dr. Feldsberg’s radiology record fails to provide any sworn causation opinion to counter
Dr. Parsioon’s opinion. Regarding the employee’s burden to provide medical proof, the
Appeals Board held:
In cases . . . where an employer has presented expert medical proof that the
employee’s condition is not work-related, the employee must present expert
medical proof that the alleged injury is causally related to the employment
when the case is not “obvious, simple [or] routine.” While lay testimony
may be probative on the issue of causation, it is insufficient to meet an
employee’s burden of proof in the absence of medical evidence.
Berdnik v. Fairfield Glade Cmty. Club, 2017 TN Wrk. Comp. App. Bd. LEXIS 32, at *10
(May 18, 2017) (internal citations omitted).
Accordingly, Loomis’ Motion for Summary Judgment is granted, and Mr.
Johnson’s claim is dismissed with prejudice.
The costs of this cause are taxed to Loomis under Tennessee Compilation Rules
and Regulations Rule 0800-02-21-.07 to be paid within five days of this order becoming
final. Loomis shall prepare and submit the SD-2 for this matter within ten days of the
date of this order. Absent appeal, this order shall become final thirty days after entry.
IT IS SO ORDERED.
ENTERED December 17, 2018.
(pach, h hitb
Judge Amber E. Luttrell
Court of Workers’ Compensation Claims
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Order was sent to the following
recipients by the following methods of service on December 17, 2018.
Employer’s Attorney
Name First Class | Via Service Sent To:
Mail Email
Landon Johnson, x x Landon.johnson@ymail.com
Self-represented Employee 4041 Barron Ave.,
Memphis, TN 38111
Dale Thomas, Esq., x dthomas@raineykizer.com
Penny Shrum, Court Clerk
Wce.courtclerk@tn.gov