Millinder, Charles v. Maplewood Health Care

2021 TN WC 238

• Court: Tennessee Court of Workers' Compensation Claims
• Decided: November 1, 2021
• Docket: 2020-07-0174
• Status: Published

Opinion

FILED Nov 01, 2021 08:34 AM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT JACKSON

CHARLES MILLINDER, ) Docket No. 2020-07-0174 Employee, ) v. ) MAPLEWOOD HEALTH CARE, ) State File No. 74357-2014 Employer, ) And ) OCCUSURE CLAIMS SERVICES, ) Judge Allen Phillips Carrier. )

COMPENSATION ORDER GRANTING SUMMARY JUDGMENT

The Court heard Maplewood’s Motion for Summary Judgment on October 28, 2021. Maplewood asserted it was entitled to summary judgment because of a medical opinion that Mr. Millinder’s injury did not arise primarily out of his employment. The Court agrees and grants the motion.

Facts

Maplewood filed a Statement of Undisputed Facts as required under Tennessee Rules of Civil Procedure 56.03, which the Court summarizes as follows:

• Mr. Millinder alleged a back injury on September 9, 2014, and Maplewood provided a panel of physicians. • The first physician Mr. Millinder chose placed him at maximum medical improvement in 2016. That physician later retired. • Maplewood provided Mr. Millinder another panel of physicians, from which he chose Dr. Fereidoon Parsioon. • Dr. Parsioon completed a Declaration under Tennessee Rules of Civil Procedure 72 in which he agreed Mr. Millinder reached maximum medical improvement in 2016 with no permanent impairment related to the September 9, 2014 injury.

1 • Dr. Parsioon also stated that the injury did not cause any anatomical changes in Mr. Millinder’s back; instead, all findings were either chronic, degenerative, or congenital. • Dr. Parsioon said none of Mr. Millinder’s conditions were primarily related to the work injury but instead to the other conditions. • Dr. Parsioon recommended no further treatment for the work injury.

Mr. Millinder did not file a written response.

Based on the undisputed facts, Maplewood argued it was entitled to summary judgment because Dr. Parsioon said that the injury did not arise primarily out of the employment. Mr. Millinder admitted he filed no response to the motion and could not dispute Maplewood’s facts.

Analysis

Tennessee Rules of Civil Procedure 56 provides specific filing requirements for both parties in summary judgment cases that “are not mere suggestions” but rather plain and unambiguous requirements. Thomas v. Zipp Express, 2017 TN Wrk. Comp. App. Bd. LEXIS 22, at *11 n.4 (Mar. 15, 2017).

Specifically, as the moving party, Maplewood must file a statement of undisputed material facts with citations to the record. It did so. As the nonmoving party, Mr. Millinder must respond to Maplewood’s statement of undisputed facts, indicating his agreement with them or demonstrating how they are disputed. Tenn. R. Civ. P. 56.03. He did not do so. Thus, the Court considers Maplewood’s motion unopposed and considers whether summary judgment is appropriate.

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. To prevail, Maplewood must do one of two things: (1) submit affirmative evidence that negates an essential element of Mr. Millinder’s claim, or (2) demonstrate that his evidence is insufficient to establish entitlement to benefits. Tenn. Code Ann. § 20-16-101 (2021). See also Rye v. Women’s Care Ctr. Of Memphis, MPLLC., 477 S.W.3d 235, 264 (Tenn. 2015).

Under law, Mr. Millinder must show that his injury was caused by a specific incident arising primarily out of his employment. Tenn. Code Ann. § 50-6-102(14)(A) (Emphasis added). Based on the undisputed facts, Maplewood negated the essential element of the injury arising primarily out of the employment through Dr. Parsioon’s declaration. Specifically, Dr. Parsioon said Mr. Millinder’s conditions were primarily related to other

2 conditions, not the injury. In the absence of any countervailing facts, Maplewood is entitled to judgment as a matter of law.

THEREFORE, IT IS ORDERED AS FOLLOWS:

1. The Court grants Maplewood’s Motion for Summary Judgment on grounds that Mr. Millinder’s injury did not primarily arise out of his employment, and his claim against Maplewood is dismissed 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 Maplewood, for which execution might issue as necessary. Maplewood shall pay the filing fee to the Clerk within five business days of the order becoming final.

4. Maplewood shall file Form SD-2, Statistical Data form, with the Clerk within five business days of this order becoming final.

ENTERED November 1, 2021.

_____________________________________ JUDGE ALLEN PHILLIPS Court of Workers’ Compensation Claims

CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent as indicated on November 1, 2021.

Name Email Service sent to: Spencer R. Barnes, X spence@morrisonandbarnes.com Employee’s Attorney kaylie@morrisonandbarnes.com B. Duane Willis, X dwillis@morganakins.com Employer’s Attorney

______________________________________ Penny Shrum, Court Clerk Court of Workers’ Compensation Claims WC.CourtClerk@tn.gov

3 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 fullycompleted 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 filestamped 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 *

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