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

MARK ELLIOTT,                                       ) Docket No. 2017-03-0637
           Employee,                                )
v.                                                  )
HERITAGE FOOD SERVICES, INC.                        ) State File No. 38250-2017
d/b/a BEL AIR GRILL,                                )
           Employer,                                )
And                                                 ) Judge Pamela B. Johnson
THE HARTFORD INSURANCE CO.,                         )
           Carrier.                                 )


         COMPENSATION ORDER GRANTING SUMMARY JUDGMENT


        This matter came before the Court on October 1, 2018, on Heritage Food Services,
Inc.'s Motion for Summary Judgment. The central legal issue is whether Heritage is
entitled to summary judgment due to Mr. Elliott's failure to present evidence at this
summary judgment stage supporting essential elements of his claim. For the reasons
below, the Court holds that Heritage is entitled to summary judgment and dismisses Mr.
Elliott's claim with prejudice.

                                          History of Claim

       On May 13, 20 17, Mr. Elliott tripped over another employee and stumbled
forward, hyper-extending his leg while working for Heritage. He received medical
treatment following his injury and ultimately selected Dr. Rick Parsons from a physician
panel offered by Heritage. 1

        Mr. Elliott saw Dr. Parsons on February 6, 2018. Dr. Parsons discussed with Mr.
Elliott the results of a lumbar spine MRI, which showed multiple level degenerative disk
1
  The submitted medical records indicated Mr. Elliott initially sought care at an emergency room a few
days following the work incident but did not receive further medical care until January 2018 when he first
saw Dr. Parsons.


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disease and changes at L4-L5 with spinal stenosis at L6-S 1. Dr. Parsons told Mr. Elliott,
"I do not feel like there is anything going on inside the hip itself, I think it is mostly just
coming from the back." He referred Mr. Elliott to a spine specialist and released him
from care.

       Dr. Samuel Yoakum examined Mr. Elliott on April 27 and diagnosed a work-
related incident with complaints of back and thigh pain, right hip flexor tendinopathy,
and multifactorial degenerative lumbar spinal stenosis with questionable radiculopathy.
Dr. Yoakum reviewed the lumbar MRI and x-ray findings with Mr. Elliott, stating, "His
hip mechanism could be consistent with a hip flexor strain. The fact that it has been 11
months since his work-related incident and he has had no workup or treatment on this
area makes it challenging to determine time line causation 100%." Dr. Yoakum referred
Mr. Elliott to physical therapy and assigned temporary restrictions for the hip flexor
strain. He also referred Mr. Elliott back to Dr. Parsons, noting, "I will defer to Dr.
Parsons with regard to final determination on the hip flexor strain." Dr. Yoakum
determined Mr. Elliott's back issues were not caused by the work-related incident and
recommended Mr. Elliott seek treatment outside the work comp system.

       On May 8, Dr. Parsons completed a Worklink report for a "R hip" injury and
referred Mr. Elliott to "PT." Dr. Parsons did not mark whether the right hip injury
"[Was] Work Related," "[Was] Not Work Related," or "Can Not Be Determined."

       Mr. Elliott's counsel wrote Dr. Parsons on September 24, asking him to "state,
within a reasonable degree of medical certainty, as to whether or not the issue[s]
regarding Mr. Elliot[t]'s hip are related to his workers' comp injury of May 13, 20 17."
Dr. Parsons handwrote, "CAN NOT BE DETERMINED UNTIL THE MRI HAS BEEN
DONE." (Emphasis in original).

                                    Procedural History

       After Heritage denied his claim, Mr. Elliott filed a Petition for Benefit
Determination and Request for Expedited Hearing seeking additional medical treatment
including a right hip MRI, outstanding medical bills and mileage expenses, and
temporary disability benefits. At the Expedited Hearing stage, the Court held Mr. Elliott
failed to present sufficient evidence demonstrating that he was likely to prevail at a
hearing on the merits on entitlement to additional medical treatment and denied his
request for a right hip MRI. The Court also held Mr. Elliott failed to present sufficient
evidence regarding payment of outstanding medical bills, mileage expenses, and
temporary disability benefits.

       Heritage then filed this Motion for Summary Judgment, along with a Statement of
Undisputed Facts and a Memorandum of Law. It argued there are no genuine issues of
dispute as to any material fact. Specifically, it asserted Mr. Elliott cannot satisfy his

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burden of proof that his injury arose primarily out of and in the course and scope of his
employment. It contended no physician has stated to a reasonable degree of medical
certainty that Mr. Elliott's work primarily caused any injury. In contrast, it emphasized
the authorized treating physicians, whose opinions are presumed correct, have not
determined that Mr. Elliott's alleged injury arose primarily out of and in the course and
scope of his employment.

        Mr. Elliott filed a response and argued genuine issues of material fact exist. Mr.
Elliott argued Heritage denied the physical therapy and right hip MRI. He further
asserted that Dr. Parsons cannot determine whether his right hip complaints are related to
the work incident until a right hip MRI is performed.

           Heritage's Objections to Mr. Elliott's Response and Attachments

        Mr. Elliott's response contained twelve-numbered paragraphs with only
paragraphs 6, 8, 12, and 13 containing partial citations to the record. Mr. Elliott's
citations refer to exhibits 1 through 4. However, the attached exhibits are unnumbered
but include Heritage's exhibits marked B and C.

       At the hearing, Heritage objected to Mr. Elliott's response and attachments on the
bases that he failed to properly cite to the record and that his response and attachments
included unsupported factual allegations containing hearsay and speculation and lacked
authentication. The Court took the objections under advisement.

       The Court sustains the objection as to Mr. Elliott's responsive pleading, finding
that Mr. Elliott's response contained unsupported factual allegations. To the extent the
factual allegations are unsupported by proper citation to the record, the Court will
consider the allegations as argument only, not evidence. As to the attachments, the Court
overrules the objection as to the May 2, 2018 Worklink record and the September 24,
2018 letter, finding the attachments are signed by a physician authenticating the letters
and are not excluded by the hearsay rule under Tennessee Rules of Evidence 803. The
Court sustains the objection as to the January 8, 2017 letter as the letter is unsigned,
incomplete, lacks authentication, and requires speculation.

                       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 (20 18).

       Heritage must do one of two things to prevail on its motion for summary
judgment: (1) submit affirmative evidence that negates an essential element of Mr.

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Elliott's claim, or (2) demonstrate that Mr. Elliott's evidence is insufficient to establish
an essential element of his claim. Tenn. Code Ann. § 20-16-101 (20 17); see also Rye v.
Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If
Heritage is successful in meeting this burden, Mr. Elliott "may not rest upon the mere
allegations or denials of its pleading." !d. at 265. Rather, he must respond by producing
evidence that sets forth specific facts showing there is a genuine issue for trial. !d.; Tenn.
R. Civ. P. 56.06. He must do more than simply show that there is some metaphysical
doubt as to the material facts. Rye, at 265.

        To determine whether summary judgment is appropriate, the Court looks to
whether there are genuine issues of material fact on the essential elements of Mr. Elliott's
claim. In doing so, the Court must review the evidence in the light most favorable to Mr.
Elliott as the nonmoving party and draw all reasonable inferences favoring him. Payne v.
D and D Elec., 2016 TN Wrk Comp App Bd LEXIS 21, at *12 (May 4, 20 16).

       The Court finds Payne analogous to this case. In Payne, the employee allegedly
slipped or stepped off a stair and felt a pop and pain in his left foot in the course and
scope of his work. He sought medical treatment and the attending physician suspected
poorly controlled diabetes and underlying osteomyelitis. The employer denied the claim
on employee's failure to produce medical evidence indicating that he suffered a work-
related injury because of his employment. Following an expedited hearing, the trial court
awarded medical benefits and the employer provided a panel of physicians. See
generally, Payne.

       The panel doctor determined the employee suffered from a pre-existing condition
that was aggravated by the employee's work injury and noted it was not likely the work
injury created the whole problem. The employer denied further benefits. At a second
expedited hearing, the trial court denied further benefits on grounds of compensability,
finding the employee did not establish by expert medical proof that his left foot condition
arose primarily out of and in the course and scope of employment. The employee did not
appeal the trial court's order. !d.

       The employer then filed a summary judgment motion because the employee failed
to submit evidence establishing he suffered an injury or aggravation arising primarily out
of and occurring in the course and scope of employment. The trial court denied summary
judgment, determining that while the employee had not yet presented evidence of the
compensability of his claim, a genuine issue of material fact existed concerning the
causation opinion the employer relied on. The employer appealed. !d.

       On appeal, the Workers' Compensation Appeals Board reversed the trial court's
denial of the employer's summary judgment motion and remanded the case to the trial
court to enter an order granting summary judgment and dismissing the employee's claim
on the merits. In doing so, the Appeals Board found the employee's response did not

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include a medical opmwn stating, suggesting, or implying that employee's left foot
condition or the aggravation of his pre-existing condition arose primarily out of and in the
course and scope of the employment. !d. at *I 0-II. The Appeals Board concluded,

        [W]ith the passage of Tennessee Code Annotated section 20-I6-I01 and the
       reexamination of the summary judgment standard in Rye, the burden falls to
       the nonmoving party to produce evidence to establish the essential elements
       of the nonmoving party's claim in response to the motion for summary
       judgment. "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." Thus, in this case,
       the trial court erred in determining that Dr. Chrostowski's failure to
       apportion causation "presents a genuine issue of material fact." The fact
       that Employee may obtain an opinion from Dr. Chrostowski, or any other
       physician, apportioning a greater percentage of causation to the work
       incident than to Employee's pre-existing condition is of no consequence if
       such opinion is not presented at the summary judgment stage.

!d. at * II-I2 (internal citations omitted).

       Here, the Court finds Heritage demonstrated that Mr. Elliott's medical proof is
insufficient to establish an essential element of his claim. Dr. Parsons, an authorized
treating physician, told Mr. Elliott, "I do not feel like there is anything going on inside
the hip itself, I think it is mostly just coming from the back[,]" and referred him to a back
specialist, Dr. Yoakum. Thereafter, Dr. Yoakum evaluated Mr. Elliott and determined,
"His hip mechanism could be consistent with a hip flexor strain. The fact that it has been
II months since his work-related incident and he has had no workup or treatment on this
area makes it challenging to determine time line causation 100%." Dr. Yoakum referred
Mr. Elliott back to Dr. Parsons, noting, "I will defer to Dr. Parsons with regard to final
determination on the hip flexor strain." In response to Mr. Elliott's request for a
causation opinion as to his hip complaints, Dr. Parsons advised he could not determine
causation until the MRI was completed.

      The Court finds Mr. Elliott cannot rely on the argument that the recommended
MRI may show a causal relationship between his hip complaints and his work incident.
Such argument is speculative and an attempt to forecast future proof. Instead, Mr. Elliott
must come forward now, at this summary judgment stage, with expert medical proof
demonstrating his hip injury arose primarily out of and in the course and scope of his
employment with Heritage. He has not done so. Therefore, the Court concludes no
genuine issue of material fact exists and summary judgment is appropriate as a matter of
law.



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IT IS, THEREFORE, ORDERED as follows:

   1. Heritage's Motion for Summary judgment is granted, and Mr. Elliott's claim
      against Heritage for the requested workers' compensation benefits is dismissed on
      the merits with prejudice to its refiling.

   2. Heritage shall prepare and file a statistical data form (SD2) with the Court Clerk at
      wc.courtclerk@tn.gov within ten business days of entry of this order.

   3. The filing fee for this case is taxed to Heritage under Tennessee Compilation
      Rules and Regulations 0800-02-21-.07.

   4. Absent an appeal, the order shall become final thirty days after issuance.

ENTERED October 5, 2018.




                                  P~MELA    B. JOHNSON, JUDGE
                                  Court of Workers' Compensation Claims


                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Compensation Order Granting
Summary Judgment was sent to the following recipients by the following methods of
service on October 5, 2018.

         Name             Certified    Fax       Email   Service sent to:
                           Mail
John R. Rosson,                                   X      rossonlaw@aol.com
Employee's Attorney                                      rjoyce 1960@aol.com

Joseph Ballard,                                   X      joseph. ballard@thehartford.com
Employer's Attorney




                                         _&         )JuUk-- '
                                         PENN~UM, Court Clerk
                                         WC.CourtClerk@tn.gov

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