                                                                                      FILED
                                                                                 February 22. 2~U7

                                                                                   TN C O URI' O F
                                                                              W ORKERS ' 'C O}.IPEN.SATIO N
                                                                                        C LAlllS

                                                                                     Time 10:19 AJJ.,[

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

VANESSA STITTS,                             )   Docket No. 2016-07-0103
         Employee,                          )
v.                                          )
ABB POWER TECH,                             )   State File No. 21750-2015
        Employer,                           )
and                                         )
ACE AMERICAN INSURANCE CO.,                 )   Judge Amber E. Luttrell
        Carrier.                            )


                  COMPENSATION ORDER GRANTING
             EMPLOYER'S MOTION FOR SUMMARY JUDGMENT


       This matter came before the Court on January 17, 2017, upon ABB Power Tech's
(ABB) Motion to Dismiss, which the Court treated as a Motion for Summary Judgment
pursuant to Rule 56 of the Tennessee Rules of Civil Procedure. The central legal issue is
whether ABB demonstrated to the Court either it affirmatively negated the timely filing
element of Ms. Stitts' claim or it demonstrated her evidence is insufficient to establish
such element. For the following reasons, the Court holds ABB affirmatively negated the
timely filing element of Ms. Stitts' claim and is entitled to judgment as a matter oflaw.

                                   Procedural history

       Ms. Stitts filed a Petition for Benefit Determination on February 4, 2016, alleging
a work injury on August 4, 2014. (T.R. 1.) After mediation failed to resolve the issues
between the parties, the mediator issued a Dispute Certification Notice certifying
compensability as a disputed issue. (T.R. 2.) The Court entered an Initial Hearing Order,
and, following the completion of discovery, the parties participated in a post-discovery
mediation. The mediator issued a second DCN in which ABB clarified the disputed issue
of compensability included whether Ms. Stitts' claim is time-barred under Tennessee
Code Annotated section 50-6-203(b) (2016).

      ABB subsequently filed "Employer's Motion to Dismiss" and a "Statement of
Undisputed Material Facts Entitling Employer and Insurer to Dismissal." In support of its

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motion, ABB attached Ms. Stitt's responses to interrogatories and request for production
of documents and excerpts from Ms. Stitts' deposition transcript. (T.R. 3-4.) Thereafter,
this Court entered an Order advising the parties that ABB's motion would be treated as
one for summary judgment pursuant to Tennessee Rule of Civil Procedure 56 and
ordered Ms. Stitts to file a response to ABB's motion in accordance with Rule 56.

       Ms. Stitts did not file a response to ABB's Statement of Undisputed Facts as
required by Rule 56. However, she filed "Employee's Response to Motion to Dismiss,"
opposing summary judgment. (T.R. 5.) In support of her response, Ms. Stitts attached her
deposition transcript beginning with page twenty-one and correspondence to Ms. Stitts
from ABB and Gallagher Bassett, its third-party administrator.

                                  The parties' positions

        In its motion, ABB argued Ms. Stitts' claim is barred by the statute of limitations
because Ms. Stitts filed her PBD more than one year after her alleged August 4, 2014
injury. In her response, Ms. Stitts did not deny filing her PBD more than one year after
the date of injury. She argued that on the date of injury, she reported her injury to human
resources representative, Cynthia Howard. Ms. Stitts contended she sought unauthorized
medical treatment for her shoulder three days prior and Ms. Howard instructed her to
')ust go back to the doctor, and just follow up with me and let me know what they say."
Ms. Stitts asserted she returned to the doctor, who took her off work for eight months for
treatment.

       Ms. Stitts cited Blocker v. Regional Medical Center, 722 S.W.2d 660, 663 (Tenn.
1987), for the proposition that when the employer initially accepts a case as compensable,
and thereafter stops making voluntary payments of benefits, the statute of limitations
does not begin to run until the employee knows or has reason to know the treatment is no
longer authorized by the employer. She argued that Ms. Howard's statement instructing
her to go back to the doctor meant she authorized that treatment under workers'
compensation and all eight months of treatment that followed. She further argued ABB
was aware of her treatment while she was off work for eight months and never told her it
was not authorized treatment by workers' compensation.

        In its "Reply to Employee's Response to Motion to Dismiss," ABB noted Ms.
Stitts' reliance on Blocker and argued that case is not applicable to the present case
because the Court's decision was based on a remedial interpretation of the Tennessee
Workers' Compensation Act. Further, it distinguished the facts in Blocker, noting in that
case workers' compensation benefits were voluntarily and actually paid by the employer.
In contrast here, ABB asserted, and Ms. Stitts admitted, that no workers' compensation
benefits were ever paid on her claim.



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       In addition, Ms. Stitts attached a letter entitled "Acknowledgement Letter" from
Gallagher Bassett Services, an email from ABB requesting information to assist it in
evaluating her claim, and an email from Gallagher Bassett to Ms. Stitts' counsel
requesting a HIPAA-compliant release to assist it in making a compensability decision on
the claim. Ms. Stitts contended these documents indicated ABB considered her workers'
compensation claim to be an approved claim and argued ABB and Gallagher Bassett "led
her along" until the statute of limitations expired. ABB denied these assertions.

       Finally, Ms. Stitts contended motions for summary judgment are disfavored in
workers' compensation cases, citing Berry v. Consolidated Systems, Inc., 804 S.W.2d
445, 446 (Tenn. 1991).

                                         Analysis

        Motions for summary judgment are governed by Tennessee Code Annotated
section 20-16-101 (2016) and Tennessee Rule of Civil Procedure 56. This 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." The party opposing the motion "must ... serve and file a response to each
fact set forth by the moving party," either agreeing that the fact is undisputed or
"demonstrating that the fact is disputed." In this case, ABB submitted a Statement of
Undisputed Material Facts in the required form. Ms. Stitts did not respond to "each fact"
set forth by ABB. Instead, she filed a response setting forth arguments in response to the
motion. Thus, procedurally, the Court finds Ms. Stitts did not properly respond to the
motion under Rule 56.

        The Court turns to whether entry of summary judgment against Ms. Stitts is
appropriate. Ms. Stitts cannot rest on mere allegations or denials of ABB's pleadings, but
must submit facts demonstrating a genuine issue of fact for trial. Failure to do so will
result in a judgment against Ms. Stitts. See Payne v. D and D Elec., 2016 TN Wrk. Comp.
App. Bd. LEXIS 21, at *7-8 (May 4, 2016). Here, the Court finds summary judgment
appropriate.

      In reaching this conclusion, the Court applied the following standard:

      In motions for summary judgment in any civil action in Tennessee, the
      moving party who does not bear the burden of proof at trial shall prevail on
      its motion for summary judgment if it:

             ( 1) Submits affirmative evidence that negates an essential
                  element of the nonmoving party's claim; or



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              (2) Demonstrates to the court that the nonmoving party's
                  evidence is insufficient to establish an essential element
                  of the nonmoving party's claim.

Payne, at *8, quoting Tenn. Code Ann. § 20-16-101 (2016).

      In this case, ABB argued Ms. Stitts' claim is time-barred and not compensable
under Tennessee Code Annotated section 50-6-203(b) (2016), which provides:

       In instances where the employer has not paid workers' compensation
       benefits to or on behalf of the employee, the right to compensation under
       this chapter shall be forever barred, unless . . . a petition for benefit
       determination is filed with the bureau ... within one year after the accident
       resulting in injury.

       To affirmatively negate this essential element of Ms. Stitts' claim or demonstrate
the insufficiency of Ms. Stitts' evidence to support her claim, ABB set forth, in part, the
following undisputed facts:

       •   Ms. Stitts filed a Petition for Benefit Determination on 2/4/2016, listing
           an injury date of 8/4/20 14; (citing the PBD);
       •   Ms. Stitts stated a specific injury-causing event occurred to her at work
           on 8/4/2014; (citing Ms. Stitts' responses to ABB's interrogatories);
       •   Ms. Stitts testified she sought medical treatment on that date and was
           taken offwork for eight months; (citing Ms. Stitts' deposition);
       •   Ms. Stitts admitted that she has not received any workers' compensation
           benefits, and that her medical bills were paid by Blue Cross Blue Shield
           of Tennessee, not her Employer; (citing Ms. Stitts' responses to
           interrogatories and request for production of documents).

       To successfully counter these undisputed facts, Ms. Stitts must "demonstrate the
existence of specific facts in the record which could lead a rational trier of fact to find in
her favor[.]" Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 265
(Tenn. 2015). In so doing, she must do more than simply offer hypothetical evidence; she
must produce evidence at this summary judgment stage of the case that is sufficient to
establish the essential elements of her workers' compensation claim. !d. at 265. This
Court must review any evidence submitted in the light most favorable to Ms. Stitts and
draw all reasonable inferences in her favor. Payne, 2016 TN Wrk. Comp. App. Bd.
LEXIS 21, at *12 (internal citations omitted).

       Applying these directives, the Court finds Ms. Stitts produced no material facts to
lead the Court to find in her favor. Instead, she only offered argument that she believed
her medical treatment was approved through workers' compensation, which is in direct
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contravention to her deposition testimony and sworn discovery responses that she never
received any workers' compensation benefits and Blue Cross Blue Shield paid all of her
medical bills.

       The Court finds the undisputed facts indicate Ms. Stitts filed her PBD more than
one year after her August 4, 2014 date of injury. She admitted in her deposition testimony
and in response to interrogatory number eighteen and request for production number nine
that she did not receive any workers' compensation benefits and that her medical bills
were paid by Blue Cross Blue Shield and out of pocket.

        In response to Ms. Stitts' reliance on Blocker, the Court concludes the facts in
Blocker are different from the present case. In Blocker, the employer made voluntary
payments of workers' compensation benefits for at least one year. Here, again, Ms. Stitts
knew ABB never made any workers' compensation payments on her claim. Moreover,
the Court finds the letters and emails submitted by Ms. Stitts do not support Ms. Stitts'
contention that her workers' compensation claim was approved or her treatment was
authorized. To the contrary, the documents merely acknowledged Ms. Stitts filed a claim
and ABB requested information to assist it in evaluating the claim. The
acknowledgement letter specifically stated "this is an acknowledgment letter and NOT an
acceptance letter." Thus, Ms. Stitts' arguments do not create a genuine issue of material
fact for trial.

       Finally, to the extent that Ms. Stitts asserts ABB is equitably estopped from raising
the one-year limitation as a defense, the Court finds Ms. Stitts did not meet her burden of
demonstrating that a genuine issue of material fact exists regarding any such claim.

       Thus, under controlling authority, the Court finds ABB submitted affirmative
evidence negating the timely filing element of Ms. Stitts' claim and also demonstrated
Ms. Stitts' evidence is insufficient to establish such element. Accordingly, the Court
grants ABB Power Tech's Motion for Summary Judgment and dismisses Ms. Stitts'
claim with prejudice. The Court taxes the filing fee of $150.00 to ABB Power Tech
pursuant to Tennessee Compilation Rules and Regulations Rule 0800-02-21-.07, to be
paid within five days of the entry of this Order, for which execution may issue as
necessary. In addition, ABB Power Tech shall prepare and submit an SD-1 form within
ten days ofthe date of this order.

       IT IS SO ORDERED.




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        ENTERED this the 22nd day of February, 2017.



                                               ~!,~~
                                           JUGiAMBER iUTT         RELL
                                           Court of Workers' Compensation Claims


Technical Record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notices (collective)
   3. Employer's Motion to Dismiss
   4. Employer's Statement of Undisputed Material Facts Entitling Employer and
      Insurer to Dismissal
   5. Employee's Response to Motion to Dismiss
   6. Employer's Reply to Employee's Response to Motion to Dismiss


                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on this the 22nd day ofF ebruary, 2017.

 Name                      Certified     Via        Via    Service sent to:
                            Mail         Fax       Email
Jeffrey P. Boyd, Esq.,                              X      jboyd@hillboren.com;
Attorney for Employee                                      sbland@hillboren.com
J. V. Thompson, Esq.,                               X      jthompson@raineykizer.com;
Attorney for Employer                                      jrowan@raineykizer.com




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