Gibbs, Doris v. EXPRESS SERVICES, INC., aka ) EXPRESS EMPLOYMENT ) PROFESSIONALS

FILED
Oct 20, 2020
08:40 AM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT KNOXVILLE
DORIS GIBBS, ) Docket No. 2020-03-0219
Employee, )
v. )
EXPRESS SERVICES, INC., aka )
EXPRESS EMPLOYMENT )
PROFESSIONALS, )
Employer, )
NEW HAMPSHIRE INSURANCE ) State File No. 118452-2019
COMPANY, )
Carrier, )
And )
ABIGAIL HUDGENS, Administrator )
of the Bureau of Workers' )
Compensation and SUBSEQUENT ) Judge Pamela B. Johnson
INJURY FUND. )
COMPENSATION ORDER GRANTING SUMMARY JUDGMENT
Express Services, Inc. (ESI) and the Subsequent Injury Fund (SIF) moved for
summary judgment on grounds that no genuine issues of material fact exist as to whether
Ms. Gibbs's right-leg injury arose primarily out of her employment. Ms. Gibbs disagreed.
For the reasons below, the Court holds that ESI and SIF are entitled to summary judgment.
History of Claim
On December 12, 2019, Ms. Gibbs struck her right leg on two storage totes while
working. ESI provided temporary disability benefits and ultimately authorized treatment
with Dr. Christine Seaworth. After ESI denied further benefits, Ms. Gibbs sought
unauthorized treatment.
She filed a Petition for Benefit Determination and Request for Expedited Hearing
seeking additional medical and temporary disability benefits. The Expedited Hearing was
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postponed by agreement due to incomplete discovery, outstanding medical reports, and
Ms. Gibbs's hiring of counsel. The Court set a Status Conference for October 1, 2020, to
discuss the parties' readiness for the Expedited Hearing and to potentially set it.
In the interim, ESI and the SIP filed this joint summary judgment motion, arguing
that no disputed issues of material fact exist. They filed an unsigned physician panel
purportedly showing that Ms. Gibbs selected Dr. Seaworth for authorized treatment. They
also submitted Dr. Seaworth's affidavit, who stated that Ms. Gibbs's right-leg complaints
are at least 50% related to her pre-existing condition. ESI and SIP asserted that Ms. Gibbs
did not show through an expert opinion that her current complaints are greater than 50%
related to her employment.
Ms. Gibbs opposed the motion, arguing that it was premature because no scheduling
deadlines have been set. She asserted that Dr. Seaworth's opinion is not presumed correct
because she did not sign the panel nor did ESI and SIP offer testimony proving that Ms.
Gibbs selected Dr. Seaworth from the panel. She further argued that the "purported
affidavit . . . is undated, unsworn, and does not meet the requirements of a Rule 72
Declaration in lieu of a sworn affidavit." Moreover, she contended that she was forced to
seek treatment on her own when ESI stopped providing benefits, and her treating
physicians have not given causation opinions because diagnostic testing and treatment are
ongomg.
Findings of Fact and Conclusions of Law
Summary judgment is appropriate when "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).
When a party who does not bear the burden of proof at trial files a motion for
summary judgment, it must do one of two things to prevail: (1) submit affirmative evidence
that negates an essential element of the nonmoving party's claim, or (2) demonstrate that
the nonmoving party's evidence is insufficient to establish an essential element of the
nonmoving party's 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 the moving party successfully meets one of those elements, the nonmoving party
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 the nonmoving party fails to do so, "summary judgment, if
appropriate, shall be entered against the [nonmoving] party." Id.The Court first addresses Ms. Gibbs's argument that the Court should deny the
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summary judgment motion as premature and finds this argument unpersuasive.
Tennessee Rules of Civil Procedure 56.02 expressly recognizes that "a party against
whom a claim ... is asserted [may] at any time, move ... for a summary judgment in the
party's favor[.]" Johnson v. Loomis Armored, 2018 TN Wrk. Comp. App. Bd. LEXIS 60,
at *8-9 (Nov. 21, 2018) (emphasis added). However, Rule 56.07 provides a mechanism to
guard against premature grants of summary judgment. If the nonmoving party needs more
time to oppose the motion, it is that party's responsibility to file a motion to continue with
an accompanying affidavit stating the reasons for a continuance. Id. Here, if Ms. Gibbs did
not file a motion for a continuance.
Turning to the merits of the motion, ESI and SIP asserted that they submitted
affirmative evidence negating an essential element of Ms. Gibbs' s claim and showed that
her evidence is insufficient to establish an essential element of her claim. They relied on
Dr. Seaworth's affidavit arguing her causation opinion is presumed correct as the panel-
selected authorized treating physician. In contrast, Ms. Gibbs argued that the Court should
not apply the presumption to Dr. Seaworth's opinion because the panel was unsigned, and
ESI and SIP offered no proof that Ms. Gibbs' selected Dr. Seaworth from the panel.
Under the Workers' Compensation Law, the opinion of a "treating physician" is
only entitled to a presumption of correctness if that physician was "selected by the
employee from the employer's designated panel of physicians." See Rhodes v.
Amazon.com, LLC, 2019 TN Wrk. Comp. App. Bd. LEXIS 24, at *20 n.4 (Jun. 11, 2019).
Here, Ms. Gibbs did not sign the panel, and ESI and SIP did not offer an affidavit
that Ms. Gibbs selected Dr. Seaworth over the telephone. Therefore, considering the
evidence in the light most favorable to Ms. Gibbs, the Court finds that no presumption of
correctness attaches to Dr. Seaworth's opinion.
Ms. Gibbs additionally contended that the Court could not consider Dr. Seaworth's
affidavit because the "purported affidavit ... is undated, unswom, and does not meet the
requirements of a Rule 72 Declaration in lieu of a sworn affidavit." The Court disagrees.
Dr. Seaworth's affidavit begins with, "PERSONALLY APPEARED before the
undersigned, an officer duly authorized by law to administer oaths, Dr. Christine Seaworth,
who being duly sworn, deposes and says on oath as follows[.]" Dr. Seaworth then stated
that she is over 18 years of age, has personal knowledge of the facts in the affidavit, and is
competent to testify. After offering her causation opinion, Dr. Seaworth signed in the
presence of a notary public, who also signed and certified "[s]worn to and subscribed
before me this the 28[th] day of July, 2020." The Court finds Dr. Seaworth's affidavit is
both sworn and dated, so it was not necessary for her statement to satisfy Tennessee Rules
of Civil Procedure 72 for declarations under penalty of perjury in lieu of an affidavit.
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Considering Dr. Seaworth' s opinion without a presumption of correctness, she
stated that Ms. Gibbs's complaints are at least 50% related to her pre-existing complaints
and symptoms. The essential elements of Ms. Gibbs's claim require evidence showing that
her injury arose primarily out of her employment. An injury arises primarily out of the
employment only if it contributed more than 50% in causing the injury, considering all
causes. Tenn. Code Ann. § 50-6-102(14)(A)-(B). Through Dr. Seaworth's affidavit, the
Court holds that ESI and SIP negated an essential element of Ms. Gibbs's claim and
demonstrated that her evidence is insufficient to establish the causal relationship between
her injury and her employment.
Ms. Gibbs argued disputed issues of material fact still exist warranting a denial of
the motion. She contended that she was forced to seek treatment on her own when ESI
stopped providing benefits, and her treating physicians have not rendered causation
opinions because diagnostic testing and treatment are ongoing. However, she presented no
evidence showing that any material fact regarding causation is disputed. Ms. Gibbs cannot
defeat a summary judgment motion by simply arguing discovery and treatment are
incomplete. Instead, she must provide expert proof on causation to show that a disputed
issue of material fact exists. She did not.
As noted above, Dr. Seaworth provided the only expert opinion on causation, and
she concluded Ms. Gibbs's right-leg complaints and symptoms are at least 50% related to
her pre-existing condition. At the summary judgment stage, Ms. Gibbs offered no other
evidence.
Viewing this evidence in the light most favorable to Ms. Gibbs, the Court finds ESI
and SIP: (1) submitted affirmative evidence negating an essential element of Ms. Gibbs's
claim, and (2) demonstrated that her evidence is insufficient to establish an essential
element of the claim. Therefore, the Court finds that no genuine disputed issues of material
fact exist as to the causal relationship between Ms. Gibbs's condition and her employment.
See Beecher v. McKesson Corp., 2017 TN Wrk. Comp. App. Bd. LEXIS 41, at *9-10 (Jul.
21, 2017). For these reasons, the Court holds ESI and SIP are entitled to summary judgment
as a matter of law.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. The Court grants ESI's and SIF's motion for summary judgment and dismisses Ms.
Gibbs's claim with prejudice to its refiling.
2. Unless appealed, this order shall become final in thirty days.
3. The Court assesses the $150.00 filing fee against ESI, for which execution might
issue as necessary. ESI shall pay the filing fee to the Court Clerk within five business
days of the order becoming final.
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4. ESI shall file Form SD-2, Statistical Data form, with the Court Clerk within five
business days of this order becoming final.
ENTERED October 20, 2020.
JUDGE PAMELA ~HNSON
Court of Workers' Compensation Claims
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent on October 20, 2020.
Name U.S. Email Service sent to:
Mail
Doris Gibbs, X dgibbs28@yahoo.com
Em lo ee
David G. Goodman, X dgoodman@forthepeople.com
Em lo ee's Attome
Garett P. Franklyn, X gpfranklyn@mijs.com
Em lo er's Attome
Allison Lowry, X allison.lowry@tn.gov
SIF Attorne
we.com· '
to.gov
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Compensati n Hearing Order Right to App al:
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, ifrepresented).
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 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.
NOTICE OF APPEAL
Tennessee Bureau of Workers' Compensation
www. n.gov/workf orce/l nluries-at-worlc/
wc.courtclerk@tn .gov I 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):
D Expedited Hearing Order filed on _ _ __ _ __ D Motion Order filed on _ _ __ _ _ _ __
D Compensation Order filed on _ __ _ _ _ __ D 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) : _ _ _ _ _ __ _ _ _ _ __ _ _ _ _ n 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 lnj .: _ _ _ __
Appellee(s) (Opposing Party): _ _ __ _ _ _ __ _ _ _ __ _ _ _ 0 EmployerOEmployee
Appellee's Address: Phone: _ _ _ _ __ _ __
Email: _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ __ _ _ _ __ __
Attorney's Name: _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ __ BPR#: _ _ __ _ _ _ _ __ _
Attorney's Email: Phone: _ _ _ _ __ _ _ __
Attorney's Address : - - - -- - - - -- - - - - - -- - - - - - - - -- - - -- - -
* Attach an additional sheet for each additional Appe/lee *
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
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-8
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 Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV l 1/15) RDA 11082
9. My expenses are:
Rent/House Payment $ per month Medical/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 $ _ _ _ __ Descri be:_ _ _ __ _ _ _ _ __
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
_ _ _ day of _ __ _ _ _ _ _ __ _ , 20_ __
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ _ __
LB-1108(REV11/15) RDA 11082