TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT MURFREESBORO
CAROLE WHITE, ) Docket No. 2017-05-0944 EMPLOYEE, ) v. ) ) COMMUNITY CARE OF ) State File No. 40374-2017 RUTHERFORD CO., ) EMPLOYER, ) And ) ) EASTERN ALLIANCE INS. CO., ) Judge Dale Tipps CARRIER. )
COMPENSATION ORDER GRANTING SUMMARY JUDGMENT
This matter came before the Court upon Community Care’s Motion for Summary Judgment. For the reasons below, the Court finds Community Care is entitled to summary judgment.
Procedural History
Ms. White filed a Petition for Benefit Determination seeking medical and temporary disability benefits. After an expedited hearing on the record, this Court issued an interlocutory order holding that Ms. White was unlikely to prevail at a hearing on the merits in establishing that she suffered a mental injury arising primarily out of her employment.
Community Care later filed a Motion for Summary Judgment, accompanied by a Memorandum of Law and a Statement of Undisputed Facts. Ms. White did not file a response. The Court heard the Motion telephonically on August 30, 2018, with Ms. White and Nicholas Snider, attorney for Community Care, participating.
1 Facts
Community Care’s Statement of Undisputed Facts included the following:
1. “The PBD described how the injury occurred as ‘from working in a hostile work environment for so long.’”
2. “The alleged date of injury is February 2017. No specific date of injury is provided.”
3. “Employee has offered no evidence of an identifiable stressful, work related event that produced a sudden mental stimulus.”
Findings of Fact and Conclusions of Law
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.
Community Care, as the party who does not bear the burden of proof at trial, must do one of two things to prevail on its motion for summary judgment: (1) submit affirmative evidence that negates an essential element of Ms. White’s claim, or (2) demonstrate that Ms. White’s evidence is insufficient to establish an essential element of her 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 Community Care is successful in meeting this burden, Ms. White “may not rest upon the mere allegations or denials of its pleading.” Id. at 265. Rather, she 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. Id.; Tenn. R. Civ. P. 56.06. She must do more than simply show that there is some metaphysical doubt as to the material facts. Rye, at 265.
Here, Ms. White filed no response to the Statement of Undisputed Facts. She attended the hearing to oppose the motion but identified nothing in the record to support her assertions. While her response did not comply with the rule, Rule 56.06 also states that if the party opposing the motion does not respond, summary judgment shall be entered against the adverse party “if appropriate.”
To determine whether summary judgment is appropriate, the Court looks to whether there are genuine issues of material fact on causation, an essential element of Ms. White’s claim. Tennessee courts apply a two-part test in order to determine whether an injury caused by mental or emotional stimulus is compensable. First, the injury must
2 stem from “an identifiable stressful, work-related event producing a sudden mental stimulus such as fright, shock, or excessive unexpected anxiety.” Second, “the event must be extraordinary in comparison to the stress ordinarily experienced by an employee in the same type of duty.” Creasman v. Waves, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 13, at *7 (Apr. 16, 2018).
The undisputed facts establish that Ms. White did not identify a specific date of injury or a stressful, work related event that produced a sudden mental stimulus. Instead, she contends the injury occurred “from working in a hostile work environment for so long.” However, gradual employment stress is insufficient to establish a claim for an injury caused by mental or emotional stimulus. See Gatlin v. Knoxville, 822 S.W.2d 587, 591 (Tenn. 1991). Therefore, based on these undisputed facts, the Court holds that Community Care has demonstrated Ms. White’s evidence is insufficient to establish an essential element of her claim.
IT IS, THEREFORE, ORDERED as follows:
1. Community Care’s Motion for Summary Judgment is granted, and Ms. White’s claim against Community Care and its workers’ compensation carrier for the requested workers’ compensation benefits is dismissed on the merits with prejudice to its refiling.
2. The filing fee of $150.00 is taxed to Community Care under Tennessee Compilation Rules and Regulations 0800-02-21-.07, for which execution may issue as necessary.
3. Absent appeal, this order shall become final thirty days after entry.
ENTERED this the 7th day of September, 2018.
_____________________________________ Judge Dale Tipps Court of Workers’ Compensation Claims
3 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Order Granting Summary Judgment was sent to the following recipients by the following methods of service on this the 7th day of September, 2018.
Name Certified Fax Email Service sent to: Mail Carole White, X X 1209 John Hood Drive Employee Rockvale, TN 37153 sdwhite101@gmail.com Nicholas Snider, X nsnider@morganakins.com Employer’s Attorney
_____________________________________ 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.
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TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT MURFREESBORO
CAROLE WHITE, ) Docket No. 2017-05-0944 EMPLOYEE, ) v. ) ) COMMUNITY CARE OF ) State File No. 40374-2017 RUTHERFORD CO., ) EMPLOYER, ) And ) ) EASTERN ALLIANCE INS. CO., ) Judge Dale Tipps CARRIER. )
COMPENSATION ORDER GRANTING SUMMARY JUDGMENT
This matter came before the Court upon Community Care’s Motion for Summary Judgment. For the reasons below, the Court finds Community Care is entitled to summary judgment.
Procedural History
Ms. White filed a Petition for Benefit Determination seeking medical and temporary disability benefits. After an expedited hearing on the record, this Court issued an interlocutory order holding that Ms. White was unlikely to prevail at a hearing on the merits in establishing that she suffered a mental injury arising primarily out of her employment.
Community Care later filed a Motion for Summary Judgment, accompanied by a Memorandum of Law and a Statement of Undisputed Facts. Ms. White did not file a response. The Court heard the Motion telephonically on August 30, 2018, with Ms. White and Nicholas Snider, attorney for Community Care, participating.
1 Facts
Community Care’s Statement of Undisputed Facts included the following:
1. “The PBD described how the injury occurred as ‘from working in a hostile work environment for so long.’”
2. “The alleged date of injury is February 2017. No specific date of injury is provided.”
3. “Employee has offered no evidence of an identifiable stressful, work related event that produced a sudden mental stimulus.”
Findings of Fact and Conclusions of Law
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.
Community Care, as the party who does not bear the burden of proof at trial, must do one of two things to prevail on its motion for summary judgment: (1) submit affirmative evidence that negates an essential element of Ms. White’s claim, or (2) demonstrate that Ms. White’s evidence is insufficient to establish an essential element of her 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 Community Care is successful in meeting this burden, Ms. White “may not rest upon the mere allegations or denials of its pleading.” Id. at 265. Rather, she 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. Id.; Tenn. R. Civ. P. 56.06. She must do more than simply show that there is some metaphysical doubt as to the material facts. Rye, at 265.
Here, Ms. White filed no response to the Statement of Undisputed Facts. She attended the hearing to oppose the motion but identified nothing in the record to support her assertions. While her response did not comply with the rule, Rule 56.06 also states that if the party opposing the motion does not respond, summary judgment shall be entered against the adverse party “if appropriate.”
To determine whether summary judgment is appropriate, the Court looks to whether there are genuine issues of material fact on causation, an essential element of Ms. White’s claim. Tennessee courts apply a two-part test in order to determine whether an injury caused by mental or emotional stimulus is compensable. First, the injury must
2 stem from “an identifiable stressful, work-related event producing a sudden mental stimulus such as fright, shock, or excessive unexpected anxiety.” Second, “the event must be extraordinary in comparison to the stress ordinarily experienced by an employee in the same type of duty.” Creasman v. Waves, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 13, at *7 (Apr. 16, 2018).
The undisputed facts establish that Ms. White did not identify a specific date of injury or a stressful, work related event that produced a sudden mental stimulus. Instead, she contends the injury occurred “from working in a hostile work environment for so long.” However, gradual employment stress is insufficient to establish a claim for an injury caused by mental or emotional stimulus. See Gatlin v. Knoxville, 822 S.W.2d 587, 591 (Tenn. 1991). Therefore, based on these undisputed facts, the Court holds that Community Care has demonstrated Ms. White’s evidence is insufficient to establish an essential element of her claim.
IT IS, THEREFORE, ORDERED as follows:
1. Community Care’s Motion for Summary Judgment is granted, and Ms. White’s claim against Community Care and its workers’ compensation carrier for the requested workers’ compensation benefits is dismissed on the merits with prejudice to its refiling.
2. The filing fee of $150.00 is taxed to Community Care under Tennessee Compilation Rules and Regulations 0800-02-21-.07, for which execution may issue as necessary.
3. Absent appeal, this order shall become final thirty days after entry.
ENTERED this the 7th day of September, 2018.
_____________________________________ Judge Dale Tipps Court of Workers’ Compensation Claims
3 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Order Granting Summary Judgment was sent to the following recipients by the following methods of service on this the 7th day of September, 2018.
Name Certified Fax Email Service sent to: Mail Carole White, X X 1209 John Hood Drive Employee Rockvale, TN 37153 sdwhite101@gmail.com Nicholas Snider, X nsnider@morganakins.com Employer’s Attorney
_____________________________________ 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