Lemons, Tina v. Ellwood Staffing Services, Inc. ( 2021 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY
TINA LEMONS, ) Docket Number: 2019-02-0313
Employee, )
V. )
ELWOOD STAFFING SERVICES, ) State File Number: 20525-2019
INC., )
Employer, )
and )
ZURICH AMERICAN INSURANCE ) Judge Brian K. Addington
COMPANY, )
Carrier. )
COMPENSATION ORDER GRANTING SUMMARY JUDGMENT
This case came before the Court on January 15, 2021, on Elwood Staffing Services’s
Motion for Summary Judgment. Previously, this Court twice denied Tina Lemons’s
request for benefits, finding that her medical proof did not show that her alleged injury
primarily arose out of and in the course and scope of employment. In its motion, Elwood
contends the undisputed material facts prove Ms. Lemons’s alleged injury did not primarily
arise from her work, and thus it is entitled to summary judgment. After careful
consideration, the Court grants the motion.
Ms. Lemons argued she had not received the second Expedited Hearing order or
Elwood’s Motion for Summary Judgment. However, she received the Notice for the
Summary Judgment hearing. She noted her address changed but her email address did not.
She asserted she did not respond to the motion because she did not receive it and argued
that, with more time, she could talk to her physician again about her injury.
Elwood argued that it mailed and emailed a copy of its motion to Ms. Lemons, and
that email notice was proper according to court rules.!
' The Court both mailed and emailed correspondence to Ms. Lemons.
1
Facts
Elwood filed a Statement of Undisputed Material Facts, summarized as follows:
Ms. Lemons reported a right-hand injury on February 16, 2019.
She selected Dr. Bruce Berry as her authorized treating physician.
On March 19, 2019, Dr. Berry said her injury is not work-related.
She submitted a note dated May 24, 2019, from Dr. William Parsley stating that
her diagnosis is “likely related to her injury.”
5. Dr. Parsley did not affirmatively state that Ms. Lemons suffered an injury arising
primarily out of and in the course and scope of employment.
6. Ina May 28, 2020 Order, the Court found Dr. Parsley’s opinion was insufficient
to overcome the presumption of correctness afforded to Dr. Berry’s opinion.
7. The Court held Ms. Lemons was not likely to succeed at a hearing on the merits
and denied her claim.
8. She requested a second Expedited Hearing and submitted an additional medical
record dated August 31, 2020, from Dr. Parsley stating that her hand injury is
“related to a work injury.”
9. Ina November 24, 2020 order, the Court found that Dr. Parsley did not state Ms.
Lemons’s injury arose primarily out of and in the course and scope of her
employment, and therefore his opinion was insufficient to overcome the
presumption of correctness afforded to Dr. Berry’s opinion.
FwWN SP
Elwood argued that there was no genuine issue as to whether her injury was not
work-related. Therefore, Ms. Lemons was not entitled to benefits as a matter of law. Ms.
Lemons did not provide a written response.
Analysis
Ms. Lemons argued she never received the motion or the Court’s previous order.
However, she received notice of the hearing, and her email address has not changed
throughout this claim. The Court finds she received the motion but did not respond to it.
Because Ms. Lemons did not respond to the motion, it is unopposed, and the Court
considers whether summary judgment is appropriate.
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 [Elwood] is entitled to a judgment as a
matter of law.” Tenn. R. Civ. P. 56.04 (2020).
Elwood, as the moving party, must do one of two things to prevail: (1) submit
affirmative evidence that negates an essential element of Ms. Lemons’s claim, or (2)
demonstrate that Ms. Lemons’s evidence is insufficient to establish an essential element of
her claim. Tenn. Code Ann. § 20-16-101 (2019); see also Rye v. Women’s Care Ctr. of
Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015).
If Elwood satisfies one of those elements, Ms. Lemons 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 she
fails to do so, “summary judgment, if appropriate, shall be entered against the [nonmoving |
party.” Id.
For Ms. Lemons to be successful in her claim, she must prove her injury arose
primarily out of and in the course and scope of her employment. Tenn. Code Ann. § 50-6-
102(14). Here, Elwood argued it negated an essential element of Ms. Lemons’s claim—
causation. Specifically, the undisputed proof showed the panel physician stated her injury
was not work-related, and Dr. Parsley did not state the alleged injury was primarily related
to her work.
The only medical evidence before the Court shows Ms. Lemons’s alleged injury
was not primarily related to her work. Based on the undisputed facts and viewing the
evidence in the light most favorable to Ms. Lemons, the Court finds Elwood negated an
essential element of her claim. Thus, it is entitled to summary judgment as a matter of law.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. Ms. Lemons’s claim is dismissed with prejudice to its refiling.
2. The filing fee of $150.00 is taxed to Elwood under Tennessee Compilation Rules
and Regulations 0800-02-21-.06 (August 2019), for which execution might issue as
necessary.
3. Elwood shall submit the SD2 within ten days of the date of judgment.
4. Unless it is appealed, this order becomes final in thirty days.
ENTERED January 21, 2021.
PB veut 7 Adleyfic
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent on January 21, 2021.
Name Certified | Fax | Email | Service sent to:
Mail
Tina Lemons, 4 4 360 Mysinger Rd.
Employee Greeneville, TN 37743
collinstina3232 @ yahoo.com
David Deming, X | ddeming@manierherod.com
Employer’s Attorney dstevens @manierherod.com
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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: “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
altemative, 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 fifieen 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
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):
CZ Expedited Hearing Order filed on CD Motion Order filed on
C1 Compensation Order filed on Oi 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): [o Employerl | 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 | 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]
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