FILED Oct 02, 2018 11:54 AM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT NASHVILLE
STEPHEN SWEENEY, ) Docket No. 2018-06-0556 Employee, ) ) v. ) ) State File No. 77996-2017 JONES BROTHERS, ) Employer, ) ) TWIN CITY FIRE INSURANCE, CO., ) Judge Joshua Davis Baker Insurer. )
COMPENSATION HEARING ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
This case came before the Court on September 24, 2018, for a hearing of Jones Brothers’ motion for summary judgment. Stephen Sweeney did not respond to the motion. The Court grants Jones Brothers’ motion and dismisses this claim with prejudice.
Procedural History and Material Facts
Mr. Sweeney suffered an injury that Jones Brothers initially accepted; it began providing temporary disability and medical benefits. After further investigation, Jones Brothers filed a Petition for Benefit Determination challenging compensability and stopped providing benefits to Mr. Sweeney.
The Court held a scheduling hearing on June 20, 2018. Blakely Matthews appeared on Jones Brothers’ behalf. The Court sent Mr. Sweeney a notice of the hearing, but he failed to appear.
At the scheduling hearing, the Court set a compensation hearing for December 6, and Jones Brothers designated Dr. Jeffrey Hazlewood as its medical expert. Dr. Hazlewood found no causal relationship between Mr. Sweeney’s injury and his workplace accident. The Court gave Mr. Sweeney until August 6 to designate his expert.
The Court sent a copy of the scheduling order containing the expert-witness disclosure date to Mr. Sweeney via certified mail, and the post office returned it marked “unclaimed.” Mr. Sweeney missed the August 6 deadline for expert-witness designation, and Jones Brothers moved for summary judgment. Jones Brothers sent a copy of its motion for summary judgment to Mr. Sweeney via regular and certified mail. It received no response.
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, Jones Brothers must either submit affirmative evidence that negates an essential element of Mr. Sweeney’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 Jones Brothers carries this burden, then Mr. Sweeney “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 Jones Brothers met its burden of demonstrating Mr. Sweeney cannot establish an essential element of his case—medical causation.
Mr. Sweeney 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 Jones Brothers’ 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. Sweeney 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 Jones Brothers: chiefly that Dr. Hazlewood found no causal relationship between his injury and his workplace accident, and Mr. Sweeney failed to disclose an expert witness to refute Dr. Hazlewood’s opinion.
The central focus of Jones Brothers’ motion is that Mr. Sweeney cannot prove his injury arose primarily out of and in the course and scope of his employment 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
2 injury and a workplace accident through expert medical proof.”). As the nonmoving party, Mr. Sweeney 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.) Because Mr. Sweeney failed to respond with any expert proof to support a causal connection between his injury and his work for Jones Brothers, he failed to carry this burden.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. The Court grants Jones Brothers’ motion for summary judgment and dismisses Mr. Sweeney’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 Jones Brothers under Tennessee Compilation Rules and Regulations 0800-02-21-.07, for which execution may issue as necessary.
4. Jones Brothers shall pay the filing fee within five business days of the order becoming final.
5. Jones Brothers 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 OCTOBER 2, 2018.
_____________________________________ Joshua Davis Baker, Judge Court of Workers’ Compensation Claims
3 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 October 2, 2018.
Name Certified Via Via Email Address Mail Fax Email Stephen Sweeney X P.O. Box 111062 Nashville, TN 37222 Blakely D. Matthews X bdmatthews@cclawtn.com
____________________________________ Penny Shrum, Clerk of Court Court of Workers’ Compensation Claims WC.CourtClerk@tn.gov
4 II I 'I
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.
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FILED Oct 02, 2018 11:54 AM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT NASHVILLE
STEPHEN SWEENEY, ) Docket No. 2018-06-0556 Employee, ) ) v. ) ) State File No. 77996-2017 JONES BROTHERS, ) Employer, ) ) TWIN CITY FIRE INSURANCE, CO., ) Judge Joshua Davis Baker Insurer. )
COMPENSATION HEARING ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
This case came before the Court on September 24, 2018, for a hearing of Jones Brothers’ motion for summary judgment. Stephen Sweeney did not respond to the motion. The Court grants Jones Brothers’ motion and dismisses this claim with prejudice.
Procedural History and Material Facts
Mr. Sweeney suffered an injury that Jones Brothers initially accepted; it began providing temporary disability and medical benefits. After further investigation, Jones Brothers filed a Petition for Benefit Determination challenging compensability and stopped providing benefits to Mr. Sweeney.
The Court held a scheduling hearing on June 20, 2018. Blakely Matthews appeared on Jones Brothers’ behalf. The Court sent Mr. Sweeney a notice of the hearing, but he failed to appear.
At the scheduling hearing, the Court set a compensation hearing for December 6, and Jones Brothers designated Dr. Jeffrey Hazlewood as its medical expert. Dr. Hazlewood found no causal relationship between Mr. Sweeney’s injury and his workplace accident. The Court gave Mr. Sweeney until August 6 to designate his expert.
The Court sent a copy of the scheduling order containing the expert-witness disclosure date to Mr. Sweeney via certified mail, and the post office returned it marked “unclaimed.” Mr. Sweeney missed the August 6 deadline for expert-witness designation, and Jones Brothers moved for summary judgment. Jones Brothers sent a copy of its motion for summary judgment to Mr. Sweeney via regular and certified mail. It received no response.
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, Jones Brothers must either submit affirmative evidence that negates an essential element of Mr. Sweeney’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 Jones Brothers carries this burden, then Mr. Sweeney “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 Jones Brothers met its burden of demonstrating Mr. Sweeney cannot establish an essential element of his case—medical causation.
Mr. Sweeney 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 Jones Brothers’ 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. Sweeney 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 Jones Brothers: chiefly that Dr. Hazlewood found no causal relationship between his injury and his workplace accident, and Mr. Sweeney failed to disclose an expert witness to refute Dr. Hazlewood’s opinion.
The central focus of Jones Brothers’ motion is that Mr. Sweeney cannot prove his injury arose primarily out of and in the course and scope of his employment 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
2 injury and a workplace accident through expert medical proof.”). As the nonmoving party, Mr. Sweeney 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.) Because Mr. Sweeney failed to respond with any expert proof to support a causal connection between his injury and his work for Jones Brothers, he failed to carry this burden.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. The Court grants Jones Brothers’ motion for summary judgment and dismisses Mr. Sweeney’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 Jones Brothers under Tennessee Compilation Rules and Regulations 0800-02-21-.07, for which execution may issue as necessary.
4. Jones Brothers shall pay the filing fee within five business days of the order becoming final.
5. Jones Brothers 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 OCTOBER 2, 2018.
_____________________________________ Joshua Davis Baker, Judge Court of Workers’ Compensation Claims
3 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 October 2, 2018.
Name Certified Via Via Email Address Mail Fax Email Stephen Sweeney X P.O. Box 111062 Nashville, TN 37222 Blakely D. Matthews X bdmatthews@cclawtn.com
____________________________________ Penny Shrum, Clerk of Court Court of Workers’ Compensation Claims WC.CourtClerk@tn.gov
4 II I 'I
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. Filed Date Stamp Here COMPENSATION HEARING NOTICE OF APPEAL Docket#: ___________________ Tennessee Division of Workers' Compensation www.tn .gov/labor-wfd/wcomp.shtml State File #/YR: - - - - - - - - - - - - - wc.courtclerk@tn .gov 1-800-332-2667 RFA#: ____________________
Date of Injury: - - ------------ SSN: _____________________
Employee
Employer and Carrier
Notice Notice is given that --------------------------------------------------- [List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers' Compensation Claims at _____
---------------------- - -- - - - t o the Workers' Compensation Appeals Board . [List the date(s) the order(s) was filed in the court clerk's office]
Judge_______________________________________________
Statement of the Issues Provide a short and plain statement of the issues on appeal or basis for relief on appeal :
List of Parties
Appellant (Requesting Party): _______________ .At Hearing: 0Employer0Employee Address: ________ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___
Party's Phone: ________________________________ Email :_____________________
Attorney's Name: ________________________________________ BPR#: ________ _
Attorney's Address:, _______________________________________ Phone : Attorney's City, State & Zip code: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ __ _ _ _ __ Attorney's Email: _______________________________________________________
• Attach an additional sheet for each additional Appellant* LB-1103 rev. 4/15 Page 1 of 2 RDA 11082 Employee Name: -- - - - - - - - - - - SF#: _ _ _ _ _ _ _ _ _ _ DOl: _ _ _ _ __
Appellee(s) Appellee (Opposing Party): ,_ _ _ _ _ _ __ At Hearing:OEmployer[]Employee
Appellee's Address:----- - - - - - - - - - - - - - - - -- - - -- - - - - - Appellee's Phone:_ _ _ _ _ __ _ __ _ _ _ _ _ Email:_ _ _ _ __ _ __ _ _ _ _ __ Attorney's Name: _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ BPR#: _ _ _ _ _ _ __ Attorney's Address: _ __ _ _ _ _ _ _ _ _ _ _ _ _ __ __ _ Phone:
Attorney's City, State & Zip code: - - - -- - - -- - - - -- - - -- - - - - - - - Attorney's Email:_ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ __
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, certify that I have forwarded a true and exact copy of this Compensation Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) ofthe Tennessee Rules of Board of Workers' Compensation Appeals on this the day o f _ , 20_.
[Signature of appellant or attorney for appellant]
Attention: This form should only be used when filing an appeal to the Workers' Compensation Appeals Board. If you wish to appeal a case to the Tennessee Supreme Court, please utilize the form provided by the Court which can be found on their website at the following address: http://www.tncourts.gov/sites/defau lt/files/docs/notice of appeal - civil or criminal.pdf
LB-1103 rev. 4/15 Page 2 of 2 RDA 11082 II I. ' I
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 I '
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