Parker, Sharon v. Ozark Motor Lines, Inc.

FILED
Sep 03, 2020
02:18 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
SHARON PARKER, ) Docket No. 2019-08-1092
Employee, )
v. )
OZARK MOTOR LINES, INC., ) State File No. 52984-2018
Employer, )
And )
TRAVELERS INDEMNITY CO., ) Judge Amber E. Luttrell
Carrier. )
COMPENSATION ORDER GRANTING SUMMARY JUDGMENT
This Court held a hearing on Ozark Motor Lines, Inc.’s Motion for Summary
Judgment on September 2, 2020. Ozark argued Ms. Parker has no evidence to demonstrate
she is entitled to an award of more than $29,202.06 in permanent partial disability benefits
and requests that the Court grant summary judgment and award Ms. Parker those benefits
with open future medical benefits. For the reasons below, the Court agrees and grants the
motion.
Procedural History and Material Facts
Ms. Parker filed a Petition for Benefit Determination seeking permanent partial
disability for a knee injury. The Dispute Certification Notice stated the parties stipulated
the applicable weekly compensation rate is $690.65, and the only issue is the extent of
permanent disability.
Ozark filed this Motion for Summary Judgment with a statement of sixteen
undisputed material facts with citations to the record in compliance with Tennessee Rules
of Civil Procedure 56.03. Ms. Parker admitted that fourteen of those facts were
undisputed.1
1
She objected to two statements on grounds they concerned settlement negotiations.
1
The parties agreed to the following facts: Ms. Parker worked as an over-the-road
truck driver for Ozark and injured her right knee while getting out of her truck on July 13,
2018. Ozark provided authorized treatment with Dr. John Lochemes, who diagnosed
meniscus tears in her knee and performed surgery. He placed her at maximum medical
improvement on April 16, 2019, and assigned a four-percent permanent impairment to the
body and permanent restrictions of no squatting or climbing. She underwent an
independent medical evaluation with Dr. Apurva Dalal, at her attorney’s request, who
agreed with the four-percent rating.
The parties further agreed that Ms. Parker’s essential duties as an over-the-road
truck driver required the ability to squat and climb; therefore, Ozark was unable to
accommodate her permanent restrictions, and she did not have a meaningful return to work.
Ms. Parker is over age forty and does not have a high school diploma.
At her stipulated compensation rate of $690.65, the parties agreed Ms. Parker is
entitled to an original award of $12,431.70 based on her four-percent permanent
impairment rating. However, because she did not return to work, the parties agreed she is
entitled to increased benefits based on the application of the 1.35 multiplier, the 1.45
multiplier based on her education level, and the 1.2 multiplier for her age. Ms. Parker’s
original award and increased benefits equate to $29,202.06 in permanent partial disability
benefits.
Ozark argued the undisputed material facts demonstrated Ms. Parker is entitled to
permanent partial disability benefits of $29,202.06 with open future medical benefits. It
contended Ms. Parker failed to prove she is entitled to anything more based on her
impairment rating, compensation rate, and increased benefits.
In response to Ozark’s motion, Ms. Parker stated that she expected Drs. Lochemes
and Dalal to testify consistently with the impairment opinions expressed in their records
but requested that the Court consider their testimony at trial. She further stated she wants
the opportunity to testify at trial.2
Law and Analysis
In considering Ozark’s motion, 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 (2019).
2
Ms. Parker confirmed at the hearing that she was not requesting a continuance of the hearing to allow her
to take the depositions of Drs. Lochemes and Dalal. She asked the Court to make its decision based on the
current record.
2
As the moving party, Ozark must do one of two things to prevail on its motion: (1)
submit affirmative evidence that negates an essential element of Ms. Parker’s claim, or (2)
demonstrate that Ms. Parker’s evidence is insufficient to establish an essential element of
her claim. Tenn. Code Ann. § 20-16-101; see also Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Ozark meets this burden, Ms. Parker must
then establish that the record contains specific facts upon which the Court could rule in her
favor. Rye, at 265.
Here, the Court finds Ozark met its burden by demonstrating that Ms. Parker’s
evidence is insufficient to establish she is entitled to any award greater than permanent
partial disability benefits of $29,202.06 under Tennessee Code Annotated section 50-6-
207(3)(A) and (B) (2019). In fact, Ms. Parker did not dispute her entitlement to those
benefits.
In responding to the motion, Ms. Parker did not point to any specific facts in the
record upon which this Court could rely to award any greater permanent partial disability
benefits. It is not enough to allege that she is not satisfied with the benefits to which she is
entitled. Ms. Parker may not rest on mere allegations, “but her response, by affidavits or as
otherwise provided in [the] rule, must set forth specific facts showing that there is a genuine
issue for trial.” Tenn. R. Civ. P. 56.06. Here, the Court holds there is no genuine issue for
trial.
Accordingly, the Court grants Ozark’s motion.
IT IS THEREFORE ORDERED as follows:
1. Ms. Parker shall recover from Ozark permanent partial disability benefits in the total
amount of $29,202.06, representing her original award and increased benefits.
2. Ms. Parker shall receive lifetime future medical benefits pursuant to statute.
3. Ms. Parker’s attorney is awarded an attorney’s fee of twenty percent to be paid from
Ms. Parker’s award.
4. Court costs of $150.00 are assessed against Ozark under Tennessee Compilation
Rules and Regulations 0800-02-21-.06 (August 2019), to be paid within five days
of this order becoming final. Ozark shall file a statistical data form (SD2) within ten
business days of the date of this order under Tennessee Code Annotated section 50-
6-244.
5. Unless appealed, this order shall become final thirty days after issuance.
3
ENTERED September 3, 2020.
_____________________________________
JUDGE AMBER E. LUTTRELL
Court of Workers’ Compensation Claims
EXHIBITS
1. Ozark Motor Lines, Inc. Motion for Summary Judgment, Statement of
Undisputed Facts and Memorandum in Support.
2. Sharon Parker’s Memorandum in opposition to summary judgment and
response to Ozark’s Statement of Undisputed Facts.
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on September 3, 2020.
Name Email Service sent to:
James Blount, IV, X jimmy@calljmb.com
Employee’s Attorney
James M. Simpson, X jsimpson@allensummers.com
Employer’s Attorney dbarnes@allensummers.com
_________________________________
Penny Shrum, Court Clerk
wc.courtclerk@tn.gov
4
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
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 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.
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
v.
___________________________________________________________________________
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):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ 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): _________________________________________ ☐Employer ☐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 I 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]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082