                                                                                                  FILED

                                                                                             TNCOURTOF
                                                                                       1\ ORKI.RS' COllPlNSATION
                                                                                                ClAD.lS

                                                                                                 Time, IO:l:S All

              TENNESSEE BUREAU OF WORKERS' COMPENSATION
             IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                              AT NASHVILLE

David Raine,                                                 Docket No.: 2015-06-0986
                 Employee,
v.                                                           State File No.: 48420-2015
White Castle,
            Employer,                                       Judge Kenneth M. Switzer
And
Trumbull Insurance Company,
            Carrier.

                            COMPENSATION ORDER GRANTING
                            MOTION FOR SUMMARY JUDGMENT


        This matter came before the Court on December 6, 2016, upon the Motion for
Summary Judgment filed by White Castle. In determining this motion, the Court
considered all relevant filings and holds for the reasons set forth below that White Castle
is entitled to summary judgment as a matter of law. 1 Therefore, Mr. Raine's claim is
dismissed with prejudice to its refiling.

                                             History of Claim

       This Court and the Tennessee Workers' Compensation Appeals Board drafted.
previous orders setting forth the facts, which factual summaries are incorporated by
reference into this Order. The Court recaps only the facts relative to whether summary
judgment is appropriate.

       Mr. Raine allegedly sustained workplace injuries on two occasions: He alleged
hurting his left·shoulder while throwing a trash bag into a dumpster and later injuring his
right knee by hitting it on a pallet. The dates of these incidents - of central importance to
the determination of this matter - are unclear. Mr. Raine listed the date of injury on his
Petition for Benefit Determination (PBD) as "August 2014." However, he told a claims
adjuster in a recorded statement he injured his shoulder in "late July or early August,"
1
 The Court attached a listing of the technical record as an appendix, which documents it considered to reach its
determinations.

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and the knee injury occurred "around that same time." In his two separate affidavits, Mr.
Raine listed the dates of injury in the caption as "07/01/2014 && [sic] 08/2014." In the
March 2016 affidavit, he stated the shoulder injury occurred "sometime in July or August
2014," and the knee injury "occurred sometime later on a different occasion." Further, in
his deposition testimony, when asked if he knew the date of the shoulder injury, Mr.
Raine responded, "The exact date, no, but I just - I know the approximate time, month
and time it happened." As for the knee injury, he testified it happened sometime after the
shoulder injury, on a Tuesday evening, before he sought medical treatment on September
24, 2014.

       Mr. Raine sought treatment with a variety of providers for his injuries, culminating
with shoulder surgery in May 2015. He testified that he considered for the first time that
workers' compensation might cover his alleged work-related injuries while treating with
the surgeon. Prior to that point, he generally did not know anything about workers'
compensation.

       Mr. Raine gave written notice of the accident in a June 3, 2015 memo to his
manager, stating that he sustained the shoulder injury "[ s]ometime in July or August of
last year (20 14 ), " and, "not long after that, I hit the inside of my right knee against the
wooden pallet[.]" White Castle denied the claim. Mr. Raine filed his PBD on August 19,
2015.

        At Mr. Raine's request, this Court conducted a review of the file and denied the
relief sought. See generally Raine v. White Castle, et al. No. 2015-06-0954, 2015-06-
0955, 2016 TN Ct. Wrk. Comp. Cl. LEXIS _,(Tenn. Ct. Workers' Comp. Cl. Sept. 2,
2016). The Court reasoned that Mr. Raine "repeatedly was unable to provide dates and
times with specificity" regarding when the alleged work-related incidents took place.
Thus, he failed to satisfy his burden to show that his injuries occurred in the course of
employment, as required by Tennessee Code Annotated section 50-6-102(14)(A) (2015).
The Court further found that White Castle did not pay benefits; Mr. Raine sustained his
injuries sometime in late July or early August 2014; and he filed his PBD on August 19,
20 15. Therefore, he failed to file a PBD within one year after the alleged accidents
resulting in injury, barring his right to compensation under Tennessee Code Annotated
section 50-6-203(b)(l) (2015).

        Mr. Raine appealed. The Tennessee Workers Compensation Appeals Board
affirmed this Court's findings of fact and conclusions of law in a memorandum opinion.
Specifically, the Appeals Board wrote it had "no difficulty finding the trial court's
determinations are supported by a preponderance of the evidence." Raine v. White
Castle, et al., No. 2015-06-0954, 2015-06-0955, 2016 TN Wrk. Comp. App. Bd. LEXIS
32, at *4-5 (Tenn. Workers' Comp. App. Bd. Oct. 14, 2016).



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        White Castle filed its Motion for Summary Judgment, a Statement of Undisputed
Material Facts, a Memorandum of Facts and Law in Support of the Employer's Motion
for Summary Judgment, and Exhibits. (T.R. 1-4.) White Castle also filed and served a
copy of Rule 56 with the moving papers, in accordance with the Court's Practices and
Procedures, to assist Mr. Raine, who is self-represented. (T.R. 5.) Mr. Raine failed to
file a Response to the Summary Judgment Motion and supporting materials.

                              Legal Principles and Analysis

        Motions for summary judgment are governed by Tennessee Code Annotated
section 20-16-101 (2016) and Tennessee Rule of Civil Procedure 56. Rule 56.03 requires
that a motion for summary judgment "be accompanied by a separate concise statement of
the material facts as to which the moving party contends there is no genuine issue for
trial." Rule 56.03 further requires any party opposing the motion for summary judgment
must, not later than five days before the hearing, serve and file a response to each fact set
forth by the movant, and that such response shall be filed with the papers in opposition to
the motion for summary judgment. The nonmoving party 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 v. Women's Care Ctr. of Memphis, MPLLC, 477
S.W.3d 235, 265 (Tenn. 2015).

       Rule 56.06 states:

       When a motion for summary judgment is made and supported as provided
       in this rule, an adverse party may not rest upon the mere allegations or
       denials of the adverse party's pleading, but his or her response, by
       affidavits or as otherwise provided in this rule, must set forth specific facts
       showing that there is a genuine issue for trial. If the adverse party does not
       so respond, summary judgment, if appropriate, shall be entered against the
       adverse party.

(Emphasis added). The Court of Appeals affirmed a trial court's grant of summary
judgment where the non-moving party failed to file a response. Williams v. Little, No.
M2008-02105-COA-R3-CV, 2009 Tenn. App. LEXIS 703, at *6 (Tenn. Ct. App. Oct. 20,
2009).

       Here, White Castle fully complied with Rule 56's requirements and this Court's
rule that it provide a copy of Rule 56 to Mr. Raine. Mr. Raine failed to file a response.
The Court holds summary judgment is appropriate, and, by the plain language of Rule
56.06, this Court enters judgment against him.




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IT IS, THEREFORE, ORDERED as follows:

   1. White Castle's Motion for Summary Judgment is granted, and Mr. Raine's claim
      against White Castle for the requested workers' compensation benefits is
      dismissed on the merits with prejudice to its refiling. The Status Conference
      previously scheduled for January 9, 20 17, is cancelled.

   2. The filing fee of $150.00 for this cause is taxed to the Employer, White Castle,
      pursuant to Tennessee Compilation Rules and Regulations 0800-02-21-.07 (20 15),
      to be paid within five days of the entry of this order, and for which execution may
      Issue as necessary.

   3. White Castle shall prepare and submit the SD-1 for this matter within ten days of
      the date of judgment.

      ENTERED this the 6th day of December, 2016.



                                   udge Kenneth M. S itzer
                                  Court of Workers' Compensati

Right to Appeal:

       Tennessee Law allows any party who disagrees with this Order to appeal the
decision to the Workers' Compensation Appeals Board or the Tennessee Supreme Court.
To appeal your case to the Workers' Compensation Appeals Board, you must:

   1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within thirty calendar days of the
      date the Workers' Compensation Judge entered the Compensation Hearing Order.

   3. Serve a copy of the Compensation Hearing Notice of Appeal upon the opposing
      party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or
      other delivery service. In the alternative, the appealing party may file an Affidavit
      of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
      fee. The Affidavit of Indigency may be filed contemporaneously with the Notice

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      of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
      will consider the Affidavit of Indigency and issue an Order granting or denying
      the request for a waiver of the filing fee as soon thereafter as is
      practicable. Failure to timely pay the filing fee or file the Affidavit of
      Indigency in accordance with this section shall result in dismissal of the
      appeal.

   5. The party filing the notice of appeal, having the re~ponsibility of ensuring a
      complete record on appeal, may request, from the Court Clerk, the audio recording
      of the hearing for the purpose of having a transcript prepared by a licensed court
      reporter and filing it with the Court Clerk within fifteen calendar days of the filing
      of the Compensation Hearing Notice of Appeal. Alternatively, the party filing the
      appeal may file a joint statement of the evidence within fifteen calendar days of
      the filing of the Compensation Hearing Notice of Appeal. The statement of the
      evidence must convey a complete and accurate account of what transpired in the
      Court of Workers' Compensation Claims and must be approved by the workers'
      compensation judge before the record is submitted to the Clerk of the Appeals
      Board. See Tenn. Comp. R. & Regs. 0800-02-22-.03 (2016).

   6. After the Workers' Compensation Judge approves the record and the Court Clerk
      transmits it to the Workers' Compensation Appeals Board, the appeal will be
      docketed and assigned to an Appeals Board Judge for review. At that time, a
      docketing notice shall be sent to the parties. Thereafter, the parties have fifteen
      calendar days to submit briefs to the Appeals Board for consideration. See Tenn.
      Comp. R. & Regs. 0800-02-22-.03 (2016).

       To appeal your case directly to the Tennessee Supreme Court, the
Compensation 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, this Order will become final by operation of law thirty calendar days after
entry, pursuant to Tennessee Code Annotated section 50-6-239(c)(7) (2016).




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                                       APPENDIX

Technical Record:
   1. Employer/Carrier's Motion for Summary Judgment
   2. Employer/Carrier's Statement ofUndisputed Material Facts in Support of its
      Motion for Summary Judgment
   3. Memorandum of Law in Support of Employer/Carrier's Motion for Summary
      Judgment
   4. Exhibits
   5. Tennessee Rule of Civil Procedure 56
   6. Expedited Hearing Order
   7. Appeals Board Memorandum Opinion

                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing Order was sent to the
following recipients by the following methods of service on this the 6th day of
December, 2016.

Name                      Certified     Via        Via    Service sent to: .
                           Mail         Fax       Email
 David Raine, self-          X                     X      1701 Luton St., Apt. B,
 represented                                              Nashville, TN 37207,
                                                          ilagosian@.gmail.com
Brett Burrow,                                      X      Bburrow@burrowlee.com
Employer's attorney




                                           m, Clerk
                                  Court o orkers' Compensation Claims
                                  WC.CourtClerk@tn.gov




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