     FILED
   Dec 17, 2018
   04:12 PM(CT)
 TENNESSEE COURT OF
WORKERS' COMPENSATION
       CLAIMS
       Following an expedited hearing, the Comt entered an order denying benefits.
Specifically, the CoUii determined Dr. Parsioon provided the only medical proof
addressing medical causation for Mr. Johnson's back and concluded his condition was
unrelated to work. Absent countervailing medical proof, the Court held he was not likely
to prevail at trial in proving his back condition arose primarily out of and in the course
and scope of his work. Regarding his neck, the Com1 held Mr. Johnson did not introduce
any evidence to support his claim of injury; thus he did not meet his burden of showing
he was likely to succeed in establishing his work injury was the primary cause of his neck
condition.

        Following the expedited hearing, the CoUii held a status hearing where Mr.
Johnson informed the CoUii that he is still treating. He indicated he sought treatment at an
emergency room because he does not have health insurance to see a physician. Because
Mr. Johnson had not completed medical treatment for his alleged injuries, the CoUii held
the parties were not ready to set the deadlines included in a scheduling order and reset the
status hearing.

       Loomis then filed its Motion for Summary Judgment, Statement of Undisputed
Facts, Memorandum in Support, and requested a hearing. At a subsequent status hearing,
Mr. Johnson again informed the Com1 that he was still seeking treatment.

       Mr. Johnson did not file a response to Loomis' Statement of Undisputed Facts as
required by Rule 56. However, he filed a response opposing summary judgment. He
attached a record from Dr. Gary Felsberg, a Board-certified neuro radiologist, who
reviewed and compared his MRI studies. Dr. Felsberg provided no causation opinion in
the report.

       On September 6, 2018, this Comt denied summary judgment and held that ruling
on the merits of the motion before Mr. Johnson completed medical treatment and before
he was subject to the deadlines of a scheduling order would be unjust to Mr. Johnson and
would frustrate the purpose of Tennessee Compilation Rule & Regulations 0800-02-21-
.13 governing scheduling hearings. Loomis filed a timely appeal, and the Appeals Board
vacated this CoUii's order and remanded it for consideration on the merits.

                                    Loomis' Motion

       Loomis argued Mr. Johnson cannot satisfy his burden of proof that his injury arose
primarily out of and the in the course and scope of his employment. It attached an
affidavit from Dr. Parsioon, the authorized treating physician, that confirmed his opinion
that Mr. Johnson's back and neck problems "are not causally related to his stated on the
job injury of December 5, 2016, but are related to a pre-existing condition which was
present less than a month prior to the stated work injury as indicated in Dr.
Schroerlucke's medical record of November 11, 2016."



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       Loomis contended it is entitled to summary judgment. It cited Beecher v.
McKesson Corp., 2017 Tenn. Wrk. Comp. App. Bd. LEXIS 41 (July 21, 2017), and
Payne v. D and D Elec., 2016 TN Wrk. Comp. App. Bd. LEXIS 21 (May 4, 2016), for
the proposition that summary judgment is appropriate when an employee fails to produce
expert medical proof of causation that counters an employer's proof to the contrary.

       Regarding Dr. Felsberg's record, Loomis argued that the record does not contain
sworn testimony from him to overcome a motion for summary judgment. Moreover, it
argued that the record fails to contain any opinion causally relating Mr. Johnson's MRI
findings to his work injury.

                                     Law and Analysis
        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 oflaw." Tenn. R. Civ. P. 56.04.

       As the moving party, Loomis must do one of two things to prevail on its motion:
(1) submit affirmative evidence that negates an essential element of Mr. Johnson's claim,
or (2) demonstrate that Mr. Johnson's evidence is insufficient to establish an essential
element of his claim. See Tenn. Code Ann. § 20-16-101 (2018); see also Rye v. Women's
Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Loomis is
successful in meeting this burden, Mr. Johnson must then establish that the record
contains specific facts upon which the Court could base a decision in his favor. Rye, at
265.

       Mr. Johnson filed a response opposing Loomis' motion for summary judgment;
however, he failed to meet the requirement of Rule 56 by responding to Loomis'
statement of undisputed material facts. Therefore, the Court finds the facts are undisputed
and turns to the issue of whether under Rule 56 summary judgment is "appropriate."

       The Court finds Loomis successfully negated the essential element of medical
causation. Dr. Parsioon unequivocally concluded in his affidavit that Mr. Johnson's
alleged back and neck injuries did not arise out of his work injury, but instead are related
to a pre-existing condition. As the panel-selected authorized treating physician, Dr.
Parsioon's causation opinion is afforded a presumption of correctness. See Tenn. Code
Ann. §50-6-102(14)(E)(2018). Moreover, Mr. Johnson failed to produce any expert
medical evidence to support his allegation that his back and neck injuries arose primarily
out of his employment.

       In responding to Loomis' motion, Mr. Johnson must "demonstrate the existence of
specific facts in the record which could lead a rational trier of fact to find in his favor[.]"
Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 265 (Tenn. 2015).
Further, he must do more than simply offer hypothetical evidence; he must produce
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evidence at this summary judgment stage of the case that is sufficient to establish the
essential elements of his workers' compensation claim. Id. at 265.
       Here, Mr. Johnson produced no material facts to lead the Court to find in his favor.
Instead, he submitted a radiology record from Dr. Feldsberg and argued that he believed
his current condition arose out of his work injury and that Dr. Parsioon was not credible.
       Although the Court is aware of Mr. Johnson's sincerely held belief that his back
and neck conditions arose primarily out of his work injury at Loomis, his lay opinion
alone is legally insufficient to refute Dr. Parsioon's conclusions. Further, the Court finds
Dr. Feldsberg's radiology record fails to provide any sworn causation opinion to counter
Dr. Parsioon's opinion. Regarding the employee's burden to provide medical proof, the
Appeals Board held:
       In cases ... where an employer has presented expert medical proof that the
       employee's condition is not work-related, the employee must present expert
       medical proof that the alleged injury is causally related to the employment
       when the case is not "obvious, simple [or] routine." While lay testimony
       may be probative on the issue of causation, it is insufficient to meet an
       employee's burden of proof in the absence of medical evidence.
Berdnik v. Fairfield Glade Cmty. Club, 2017 TN Wrk. Comp. App. Bd. LEXIS 32, at* 10
(May 18, 2017) (internal citations omitted).
      Accordingly, Loomis' Motion for Summary Judgment is granted, and Mr.
Johnson's claim is dismissed with prejudice.

        The costs of this cause are taxed to Loomis under Tennessee Compilation Rules
and Regulations Rule 0800-02-21-.07 to be paid within five days of this order becoming
final. Loomis shall prepare and submit the SD-2 for this matter within ten days of the
date of this order. Absent appeal, this order shall become final thirty days after entry.

      IT IS SO ORDERED.

      ENTERED December 17, 2018.


                                          Judge Amber E. ~uttrell
                                          Court of Workers' Compensation Claims




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                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Order was sent to the following
recipients by the following methods of service on December 17, 2018.

           Name                First Class      Via             Service Sent To:
                                  Mail         Email
Landon Johnson,                    x               x   Landon.johnson@ymail.com
Self-represented Employee                              4041 Barron Ave.,
                                                       Memphis, TN 3 8111
Dale Thomas, Esq.,                                 x   dthomas@raineykizer.com
Employer's Attorney




                                             Penny Shrum, Court Clerk
                                             W c.courtclerk@tn.gov




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