Lagel. Imad v. Elwood Staffing Services, LLC

FILED
Nov 20, 2018
10:54 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
IMAD LAGEL, ) Docket No. 2018-06-0130
)
Employee, )
v. )
)
ELWOOD STAFFING SERVICES, LLC, ) State File No. 54870-2016
)
Employer, )
And )
)
ZURICH AMERICAN INS. CO., ) Judge Joshua Davis Baker
Carrier. )
COMPENSATION HEARING ORDER GRANTING
MOTION FOR SUMMARY JUDGMENT
This case came before the Court on November 19, 2018, for a hearing of Elwood
Staffing’s motion for summary judgment. Imad Lagel did not respond to the motion.
The Court grants Elwood’s motion and dismisses this claim with prejudice.
Procedural History and Material Facts
The Court previously convened an expedited hearing and issued an order denying
Mr. Lagel’s request for additoinal medical benefits. Elwood’s motion for summary
judgment followed. As Mr. Lagel filed no response to the motion, the Court’s factual
summary comes entirely from Elwood’s statement of undisputed material facts.
Mr. Lagel worked as a temporary employee for Elwood Staffing. On July 19,
2016, he developed right foot pain and swelling while stacking boxes onto pallets.
Elwood authorized treatment and, after an emergency-room visit, Mr. Lagel chose U.S.
Healthworks from a panel of physicians. There, Dr. Harold V. Nevels diagnosed a right
ankle sprain but discharged him to full duty work on July 20, 2016. On July 23, Dr.
Nevels placed him at maximum medical improvement (MMI). His pain resolved but he
quit working for Elwood about a week after the date of his alleged injury.
On August 9, 2016, Mr. Lagel returned to the emergency room when his pain
reemerged. The ER physician diagnosed him with gout, and his symptoms calmed
somewhat after this second ER visit.
Then, in 2017, Mr. Lagel again began experiencing foot pain and went on his own
to Vanderbilt University Medical Center. Mr. Lagel then filed a Petition for Benefit
Determination and the adjuster agreed to authorize a follow-up visit with Dr. Nevels.
At the follow-up, Dr. Nevels determined Mr. Lagel’s symptoms were unrelated to
his July 19, 2016, work-related injury. Instead, Dr. Nevels determined his foot and ankle
pain resulted from osteoarthritic changes.
Law and Analysis
Tennessee Rule of Civil Procedure 56.04 states 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, Elwood must either submit
affirmative evidence that negates an essential element of Mr. Lagel’s claim or
demonstrate that his evidence is insufficient to establish an essential element of his claim.
Tenn. Code Ann. § 20-16-101 (2017); see also Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Elwood carries this burden, then Mr.
Lagel “may not rest upon the mere allegations or denials of [his] pleading” but must
respond by producing facts showing a genuine issue for trial. Id.; Tenn. R. Civ. P. 56.06.
The Court holds that Elwood met its burden of demonstrating Mr. Lagel cannot establish
an essential elements of his case—the causal relationship between is workplace injury
and his need for medical treatment.
Mr. Lagel failed to respond to the motion. While his failure to respond does not
mandate entry of summary judgment, it does prevent him from disputing any of the facts
asserted in Elwood’s statement of material facts. See United Serv’s 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.”). Additionally, although Mr. Lagel
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). Accordingly, because he failed to respond to the motion, the
Court accepts the facts provided by Elwood: chiefly that Dr. Nevels found no causal
relationship between his workplace accident and his ongoing need for medical treatment
for an unrelated condition.
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The central focus of Elwood’s motion is that Mr. Lagel cannot prove his need for
additional medical treatment arose from his January 19, 2016 workplace accident due to a
lack of medical proof. See Wheetley v. State, No. M2013-01707-WC-R3-WC, 2014
Tenn. LEXIS 476, at *5 (Tenn. Workers’ Comp. Panel June 25, 2014) (“In all but the
most simple and routine cases, an employee must prove the causal relationship between
an injury and a workplace accident through expert medical proof.”). As the nonmoving
party, Mr. Lagel must “demonstrate the existence of specific facts in the record which
could lead a rational trier of fact to find in favor of the nonmoving party.” Rye, at 265.
“The focus is on the evidence the nonmoving party comes forward with at the summary
judgment stage, not on hypothetical evidence that theoretically could be adduced . . . at a
future trial.” Id. (Emphasis added.)
All the evidence supports the finding that Mr. Lagel’s need for medical treatment
stemmed from either his preexisting gout or an osteoarthritic condition unrelated to his
work for Elwood. Because Mr. Lagel failed to respond with any expert proof to support a
causal connection between his workplace injury and his current need for medical
treatment, he failed to carry this burden.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. The Court grants Elwood’s motion for summary judgment and dismisses Mr.
Lagel’s claim with prejudice to its refiling.
2. Absent an appeal to the Appeals Board, this order shall become final in thirty
days.
3. The Court assesses the $150.00 filing fee against Elwood under Tennessee
Compilation Rules and Regulations 0800-02-21-.07, for which execution may
issue as necessary.
4. Elwood shall pay the filing fee within five business days of the order becoming
final.
5. Elwood shall file form SD-2 with the clerk, via email at wc.courtcleerk@tn.gov,
within ten business days of this order becoming final.
IT IS SO ORDERED.
ENTERED ON NOVEMBER 20, 2018.
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_____________________________________
Joshua Davis Baker, Judge
Court of Workers’ Compensation Claims
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was sent to the following
recipients by the following methods of service on November 20, 2018.
Name Certified Fax Email Service sent to:
Mail
Imad Lagel, X X 5756 Mount View Rd.
Self-represented Antioch, TN 37013
Employee Lg_imad@hotmail.com
David Deming, X ddeming@manierherod.com
Employer’s Attorney
____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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II
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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 ofthe 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 lndigency 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 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.
II I.
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Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I 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:_ _ _ _ __ _ _ _ _ __ 2. Address: - - - - - - - -- - - --
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - -- - - -- -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -
- - - - - - - - - - - - - -- -- Relationship: - - - - - -- - - -- - -
- - - - - - - - - - -- - -- - - Relationship: - - - -- - -- - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -
6. I am employed by: - - - - - - - - - - -- - - -- - - - - - -- - - -- - -
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. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ! ~ li
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'
Rent/House Payment $ per month Med icai/Dental $ _ _ ___ per month
Groceries $ per month Telephone $ _ __ _ _ per month
Electricity $ per month School Supplies $ _ _ _ _ _ per month
Water $ per month Clothing $ _ _ _ _ _ per month
Gas $ per month Child Care $ _ _ _ _ _ per month
Transportation $ per month Child Support $ _ _ _ _ _ per month
Car $ per month
Other $ per month (describe:
10. Assets:
Automobile $ _ _ _ __
(FMV) - - - - - - - - - -
Checking/Savings Acct. $ _ _ _ __
House $ _ _ __
(FMV) - - - - - - - - - -
Other $ _ _ _ __ Describe:_ _ _ _ __ _ __ __
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
____ dayof _____________________ , 20_ __
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ _ __
LB-1108 (REV 11/15) RDA 11082