BURDESHAW, CHARLES v. SCOTT MANAGEMENT, LLC , 2023 TN WC 83 ( 2023 )

FILED
Nov 21, 2023
04:11 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
CHARLES BURDESHAW, ) Docket No. 2022-03-0262
Employee, )
v. )
SCOTT MANAGEMENT, LLC, ) State File No. 71846-2021
Employer, )
And )
AMTRUST NORTH AMERICA, ) Judge Lisa A. Lowe
Carrier. )
COMPENSATION ORDER GRANTING SUMMARY JUDGMENT
The Court heard Scott Management, LLC’s, Motion for Summary Judgment on
November 21, 2023. Mr. Burdeshaw did not file a response or participate in the hearing.
Scott Management contends no genuine issue of material fact exists because Mr.
Burdeshaw cannot meet his burden of proving causation. The Court grants the motion.
History of Claim
Mr. Burdeshaw worked for Scott Management as an over-the-road truck driver,
which required loading and unloading his truck.
From May to August 2021, Mr. Burdeshaw received two injections and treatment
for left-shoulder degenerative osteoarthritis with impingement from his personal physician.
On September 7, 2021, while loading laptops into a shipping container at Turbo Data
Networks, Mr. Burdeshaw felt a sharp pain in his left shoulder and arm. A Turbo Data
Networks employee witnessed the incident and emailed Scott Management to report it.
Scott Management offered a panel of physicians.
Mr. Burdeshaw selected Dr. Brian Holloway, who diagnosed left rotator cuff strain
and biceps tendon rupture with impingement and treated him conservatively. Because of
Mr. Burdeshaw’s unhappiness with Dr. Holloway, Scott Management gave him a second
panel, and Mr. Burdeshaw selected Dr. John Reynolds.
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Dr. Reynolds ordered an MRI that revealed a rotator cuff tear and biceps tendon
rupture that he said was “likely sustained at the time of the injury . . . and [Mr. Burdeshaw]
may have significant rotator cuff pathology.” Later, however, Scott Management sent Dr.
Reynolds a causation questionnaire, and he changed his opinion, responding that he did not
believe Mr. Burdeshaw’s employment primarily caused his condition.
The Court denied benefits after an Expedited Hearing, since Dr. Reynold’s opinion
was the only expert medical opinion in the record. Then the Court issued a Scheduling
Order requiring medical expert witness depositions to be completed by September 15,
2023.
Mr. Burdeshaw did not take any medical expert witness depositions, which
prompted Scott Management to file this motion. In support, Scott Management relies on
Dr. Reynolds’s causation questionnaire response and the fact that Mr. Burdeshaw has no
medical proof relating his injury to his employment.
Law and Analysis
Summary judgment is appropriate if there is no genuine issue as to any material fact
and the moving party is entitled to a judgment as a matter of law. As to the record, Rule
56.04 allows a court to consider only pleadings, depositions, answers to interrogatories,
admissions on file, and affidavits. Tenn. R. Civ. P. 56.04 (2023).
As the moving party, Scott Management must do one of two things to prevail on its
motion: (1) submit affirmative evidence that negates an essential element of Mr.
Burdeshaw’s claim, or (2) demonstrate that Mr. Burdeshaw’s evidence is insufficient to
establish an essential element of his claim. Tenn. Code Ann. § 20-16-101 (2023); see also
Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015).
According to section 50-6-102(12), an injury must arise primarily out of and in the
course and scope of employment to be compensable. To prove this, an employee must
show “by a preponderance of the evidence that the employment contributed to more than
fifty percent (50%) in causing the injury considering all causes.” Tenn. Code Ann. § 50-
6-102(12)(B). This requires an expert medical opinion.
To prove Mr. Burdeshaw’s injury did not arise from his employment, Scott
Management relies on Dr. Reynolds’s letter. Under Rule 56, the Court cannot consider the
letter as proof supporting the summary judgment because it is not an affidavit or deposition
testimony. Thus, Scott Management has not submitted affirmative evidence that negates
Mr. Burdeshaw’s claim.
However, Mr. Burdeshaw did not provide any expert medical proof to support
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causation in response to the motion for summary judgment. It was his duty to do so. See
Tenn. R. Civ. P. 56.06 (prohibiting the party opposing summary judgment from relying on
“mere allegations” and requiring affidavits or other proof to defend against the motion.).
Because he failed to submit any expert medical proof, Scott Management has demonstrated
the insufficiency (or non-existence) of Mr. Burdeshaw’s causation evidence. Therefore,
Scott Management is entitled to summary judgment as a matter of law.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Burdeshaw’s claim is dismissed with prejudice. The Compensation
Hearing set for December 13, 2023, is canceled.
2. Unless appealed, this order shall become final in thirty days.
3. The Court assesses the $150.00 filing fee against Scott Management, for
which execution might issue as necessary. Scott Management shall pay the
filing fee to the Court Clerk within five business days of the order becoming
final.
4. Scott Management shall file Form SD-2, Statistical Data form, with the Court
Clerk within five business days of this order becoming final.
ENTERED November 21, 2023.
_____________________________________
JUDGE LISA A. LOWE
Court of Workers’ Compensation
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on November 21, 2023.
Name Mail Email Service sent to:
Charles Burdeshaw, X X P.O. Box 1513
Employee Kodak, TN 37764
charlesburdeshaw2@gmail.com
Attorney Uzelac X jauzelac@mijs.com
Employer’s 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.