Hardy, Tracie v. Hershey Co.

FILED
Feb 07, 2020
01:35 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Tracie Hardy ) Docket No. 2019-08-0120
)
v. ) State File No. 7237-2019
)
Hershey Co., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Amber E. Luttrell, Judge )
Affirmed and Remanded
The employee filed a petition for benefits alleging she was diagnosed with chronic
obstructive pulmonary disease (“COPD”) while working for the employer. Following an
expedited hearing, the trial court denied the employee’s request for benefits. The
employer subsequently filed a motion for summary judgment. Concluding the employer
affirmatively negated an essential element of the employee’s claim based upon the
doctrines of accord and satisfaction and res judicata, the trial court granted summary
judgment and dismissed the employee’s claim. The employee has appealed, but failed to
identify any issues or make any meaningful argument on appeal. We affirm the trial
court’s grant of summary judgment in favor of the employer and certify as final its order
dismissing the employee’s claim.
Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Pele I. Godkin joined.
Tracie Hardy, Memphis, Tennessee, employee-appellant, pro se
Stephen Miller and Matthew Macaw, Memphis, Tennessee, for the employer-appellee,
Hershey Co.
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Memorandum Opinion 1
On January 30, 2019, Tracie Hardy (“Employee”) filed a petition for benefits
alleging she was diagnosed with work-related COPD on September 7, 2016, while in the
employment of Hershey Co. (“Employer”). Employer denied the claim, asserting
defenses of accord and satisfaction, res judicata, the running of the statute of limitations,
and the lack of any proof establishing medical causation. Employee filed a request for
the trial court to issue a decision on the record, but Employer objected and requested an
evidentiary hearing. The trial court granted Employer’s request and conducted an in-
person hearing on June 7, 2019, after which it issued an order denying Employee’s claim
for benefits.
In the order denying benefits, the trial court recounted the procedural history of
Employee’s claims for workers’ compensation benefits, noting that in May 2017, the
court had approved a settlement of Employee’s claim for workers’ compensation benefits
based upon an alleged injury date of October 2, 2016. The trial court’s order stated that
Employee had “entered into a doubtful and disputed settlement for $6,000 for her ‘asthma
and/or pulmonary problems,’” adding that, as support for the 2017 settlement,
Employee’s counsel attached a causation letter from Employee’s pulmonologist
diagnosing Employee with COPD on October 4, 2016, and indicating that Employee’s
COPD did not arise primarily out of and in the course and scope of her employment.
Further addressing the May 2017 settlement, the court’s June 2019 order stated
that Employee “reached a compromise settlement of her doubtful and disputed claim that
was in her best interest” and that Employer “then tendered to [Employee] a $6,000 check
‘as satisfaction and extinction’ of her claim for workers’ compensation benefits.” Noting
that Employee was a self-represented litigant, the court stated that she “filed a second
Petition for Benefit Determination seeking benefits from [Employer] for COPD but
alleging an injury date of September 7, 2016.” The trial court determined that Employee
was not likely to prevail at trial based on Employer’s defense of accord and satisfaction,
and that Employer offered sufficient evidence to establish that Employee’s claim is also
barred by the doctrine of res judicata. 2
1
“The Appeals Board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the Appeals Board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Appeals Bd. Prac. & Proc. § 1.3.
2
Prior to the expedited hearing, Employee filed a motion for summary judgment that the trial court
considered and denied subsequent to its issuance of the June 2019 expedited hearing order. In its July
2019 order denying Employee’s motion, the trial court concluded that Employee’s motion did not comply
with the requirements of Rule 56 of the Tennessee Rules of Civil Procedure, as Employee failed to file a
statement of allegedly undisputed facts and submitted no proof demonstrating she was entitled to
judgment as a matter of law.
2
Employer subsequently filed a motion for summary judgment that was
accompanied by thirteen separate numbered statements of fact that Employer asserted
were material, undisputed, and supported by citations to the record. Employer’s
statement of undisputed facts included the following:
1. Employee filed a “Petition for Benefit Determination Settlement
Approval Only” concerning an alleged October 2, 2016 injury;
2. Employee alleged in the petition that she suffered asthma and
pulmonary problems caused by her employment;
3. Employee was represented by counsel at the time of the filing of her
petition; and
4. Employee was diagnosed with COPD by Dr. Suzette Panton in 2016.
Additionally, Employer’s statement of undisputed facts alleged that the attorney
representing Employee at the time of the earlier settlement had written Dr. Panton to
inquire whether Employee’s diagnosis of COPD arose primarily out of and in the course
and scope of her employment and that Dr. Panton had responded “no.” Further, the
statements alleged that, based upon Dr. Panton’s medical opinion, Employee and
Employer entered into a settlement of Employee’s workers’ compensation claim on
a “doubtful and disputed” basis for $6,000.
Employer’s statements further asserted that the trial court approved the settlement
on May 18, 2017, and entered an “Order Approving Workers’ Compensation Settlement
Agreement” in which the court found that Employee had “reached a compromise
settlement of this doubtful and disputed claim.” The statements also asserted that
Employer tendered the settlement funds to Employee “as satisfaction and extinction of
[Employee’s] claim for workers’ compensation benefits,” and that Employee
contemporaneously executed a “Release of Workers’ Compensation Claims, and therein,
[Employee] released and waived all claims against [Employer] for workers’
compensation benefits relative to her COPD and asthma conditions.” Finally,
Employer’s statements asserted that Employee filed a second petition for benefits on
January 30, 2019, in which Employee contended that her diagnosis of COPD “is work-
related,” and that the date of injury was September 7, 2016.
Employer filed contemporaneously with its motion for summary judgment a
January 11, 2019 letter purportedly signed by Employee’s primary care provider, nurse
practitioner Bridget Brady. The letter, bearing a signature purporting to be that of “Dr.
Bridget Brady,” indicated that Employee’s COPD arose primarily out of and in the course
and scope of her employment and that Employee “has suffered a 100% permanent
impairment to the body as a whole.” By contrast, Employer also submitted an affidavit
of Ms. Brady in which she stated that she did not sign the letter in question and had never
seen the letter before it was presented to her when she signed her affidavit. Addressing
the signature on the letter, the affidavit stated the letter “indicates ‘Dr. Bridget Brady’
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immediately above the signature and I am not a medical doctor of any kind.”
(Underlining in original.) By including these materials with its motion, Employer
apparently sought to imply that Ms. Brady’s signature on the letter had been forged.
Employee filed a response to Employer’s motion in which she alleged that she “set
forth affirmative evidence establishing the Employer failed to comply with Tennessee
Workers’ Compensation policies and procedures.” The response stated that Employee
“has proven that her injury arose from her employment and has further demonstrated that
Employer[’]s evidence is insufficient and inaccurate.” The response consisted of
Employee’s narrative concerning her work history, her diagnosis of COPD, the prior
settlement, allegations concerning her current and previous claims, and allegations
concerning her communications with Employer’s attorney that Employee said resulted in
her having to make a statement to the Memphis police regarding the validity of the letter
purportedly signed by “Dr. Bridget Brady.” There were no citations or references to the
record for many of the allegations in Employee’s narrative paragraphs. Employee did,
however, reference parts of the transcript of the expedited hearing that she claimed
included incorrect information, and she referenced several documents in the record that
she contended had incorrect or missing information. Importantly, Employee did not
reference the thirteen statements that Employer alleged to be undisputed and material to
its summary judgment motion.
Prior to the trial court’s ruling on Employer’s motion for summary judgment,
Employee filed another document in which she made allegations and arguments that she
asserted supported her position that the court should deny Employer’s motion. The
document referenced several exhibits that were introduced at the expedited hearing as
well as documents that the trial court did not admit into evidence at the hearing.
After considering Employer’s motion for summary judgment, the trial court
concluded that Employer affirmatively negated an essential element of Employee’s claim
“because the doctrines of accord and satisfaction and res judicata bar [Employee’s] cause
of action.” The court further concluded that Employee “produced no material facts with
citations to the record to lead the Court to find in her favor” and granted summary
judgment to Employer. Employee has appealed.
Although Employee timely filed a notice of appeal, she failed to identify any
issues for review in her notice of appeal, stating instead that she “prays that the [A]ppeals
[B]oard fairly approves her claim based off [sic] facts.” The notice of appeal further
stated that Employee “received COPD while being employed at [Employer], however
[Employer] placed [her] on short term disability.” Finally, the notice of appeal stated that
Employee would “like all past [and] present compensation [and] medical care.”
Rather than filing a brief on appeal, Employee filed a document styled “Motion for
Intentional Tort Summary Judgment with Valid Facts and Conclusions,” which was
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addressed to the Court of Workers’ Compensation Claims. 3 Employee asserted in the
document that Employer willfully and intentionally failed to provide her reasonable and
necessary medical treatment and concluded “this Court should grant the Motion for
Summary Judgment with prejudice.” The document presents legal arguments and
conclusions not pertinent to the trial court’s grant of summary judgment and fails to
identify any alleged errors made by the trial court or to present any meaningful argument
in support of her appeal. It is not our role to search the record for possible errors or to
formulate legal arguments in Employee’s favor where she has provided no meaningful
argument or authority to support her position. Cosey v. Jarden Corp., No. 2017-01-0053,
2019 TN Wrk. Comp. App. Bd. LEXIS 3, at *8 (Tenn. Workers’ Comp. App. Bd. Jan.
15, 2019). Were we to search the record for possible errors and raise issues and
arguments for Employee, we would be acting as her counsel, which the law prohibits.
Webb v. Sherrell, No. E2013-02724-COA-R3-CV, 2015 Tenn. App. LEXIS 645, at *5
(Tenn. Ct. App. Aug. 12, 2015).
Accordingly, we affirm the trial court’s order granting summary judgment to
Employer and certify as final the trial court’s order dismissing Employee’s claim. Costs
on appeal are taxed to Employee.
3
We chose to treat the filing as Employee’s brief on appeal, as she filed no other document presenting
issues for review or specifying how the trial court erred in granting summary judgment to Employer.
5
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Tracie Hardy ) Docket No. 2019-08-0120
)
v. ) State File No. 7237-2019
)
Hershey Co., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Amber E. Luttrell, Judge )
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 7th day
of February, 2020.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Tracie Hardy X X traciehardy49@gmail.com
5264 Millbranch Rd.
Memphis, TN 38116
Matthew Macaw X mmacaw@mckuhn.com
Stephen Miller smiller@mckuhn.com
Amber E. Luttrell, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: WCAppeals.Clerk@tn.gov