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

MARY FRANCES VESTER,       )                     Docket No. 2016-06-1427
     Employee,             )
                           )
v.                         )
                           )                      State File No. 51455-2016
HOME HEALTH CARE OF MIDDLE )
TENNESSEE, LLC,            )
     Employer,             )
                           )
And                        )                     Judge Joshua Davis Baker
UNITED HEARTLAND,          )
     Insurance Carrier.    )

                COMPENSATION HEARING ORDER GRANTING
                   MOTION FOR SUMMARY JUDGMENT

       This matter came before the Court on June 19, 2017, upon the Motion for
Summary Judgment filed by Home Health Care of Middle Tennessee, LLC (HHC) under
Rule 56 of the Tennessee Rules of Civil Procedure. The determinative legal issue is
whether HHC is entitled to summary judgment as a matter of law because Ms. Vester was
not at work on the date of injury. Ms. Vester did not file a response to HHC’s Motion
and did not attend the hearing. Based on its review of HHC’s motion and arguments, the
Court grants HHC’s Motion for Summary Judgment.

                                    History of Claim

        Ms. Vester, a registered nurse, alleged she injured her cervical spine on June 20 or
21, 2016, during her employment with HHC at the home of Anastasia Murray, a client of
HHC. After an expedited hearing, this Court found Ms. Vester was not working for HHC
on either of the alleged dates of injury. The Court found the testimony of HHC’s human
resources manager, Kellie Thiede, established that Ms. Vester worked in Ms. Murray’s
home on June 15, but did not return to work there again until June 30. While Ms. Vester
testified she had difficulty remembering exact dates, she repeatedly maintained in
testimony, her affidavit, and in her Petition for Benefit Determination (PBD) that the
injury occurred on either June 20 or 21. Crediting the testimony of Ms. Thiede , the
Court concluded Ms. Vester was not injured “within the period of employment, at a place
where the employee reasonably may be…while fulfilling work duties,” since she was not
at work when she was injured. Blankenship v. Am. Ordnance Sys. LLC, 164 S.W.3d 350,
354 (Tenn. 2005). The Court entered an order denying her claim.

       HHC filed its Motion for Summary Judgment, a Statement of Undisputed Facts,
and a Memorandum of Law in Support of Summary Judgment. In accordance with the
Court’s Practices and Procedures, HHC also filed a copy of Rule 56 for the benefit of Ms.
Vester, a self-represented litigant. Ms. Vester did not file a response to the motion.

                             Legal Principles and Analysis

       Motions for summary judgment are governed by Tennessee Rule of Civil
Procedure 56.04, which provides for entry of summary judgment when “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.” Further, the Tennessee
General Assembly codified the burden of proof in summary judgment motions as
follows:

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

Tenn. Code Ann. § 20-16-101 (2016); Payne v. D and D Elec., 2016 TN Wrk. Comp.
App. Bd. LEXIS 21, at *7-8 (May 4, 2016).

        If the moving party meets its burden of negating an essential element or
demonstrating evidence is insufficient, then the injured employee, as the nonmoving
party, must “demonstrate the existence of specific facts in the record which could lead a
rational trier of fact to find in [his or her] favor[.]” Rye v. Women’s Care Ctr. of
Memphis, MPLLC, 477 S.W.3d 235, 265 (Tenn. 2015). Thus, if HHC meets its burden of
proof, Ms. Vester must do more than simply show some “metaphysical doubt” as to the
material facts. In other words, the Court must focus on any evidence Ms. Vester presents
at the summary judgment stage, “not on hypothetical evidence that theoretically could be
adduced [by her] . . . at a future trial.” Id.

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       An essential element of Ms. Vester’s claim includes proving she suffered an injury
during the course and scope of her employment with HHC. An injury occurs “in the
course and scope of employment if ‘it takes place within the period of employment, at a
place where the employee reasonably may be, and while the employee is fulfilling work
duties.’” Blankenship, 164 S.W.3d at 354. In its statement of undisputed facts, HHC
included the following facts: (1) Ms. Vester alleged her injury occurred either June 20 or
21. (2) Ms. Theide testified, based upon a productivity report, that Ms. Vester was not
working on June 20 or 21. HHC provided a copy of the trial transcript in support of these
facts. Furthermore, the Court heard both witnesses testify at an expedited hearing and
found the testimony established Ms. Vester was not working for HHC on the date she
allegedly suffered her injury. Thus, HHC negated an essential element of Ms. Vester’s
claim by demonstrating her injury did not occur within a period of employment.

        HHC complied with Rule 56’s requirements and this Court’s rule to provide a
copy of Rule 56 to Ms. Vester. She failed to respond and failed to provide any evidence
that she was at work on June 20 or June 21. As noted in Rye, “[t]he 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.” Id. at 265
(emphasis added). Therefore, the Court holds Ms. Vester failed to “demonstrate the
existence of specific facts in the record which could lead a rational trier of fact to find in
[her] favor.” Id. Accordingly, the Court grants HHC’s Motion.

IT IS, THEREFORE, ORDERED as follows:

          1. HHC’s Motion for Summary Judgment is granted.

          2. Ms. Vester’s claim is dismissed with prejudice.

          3. The Court assesses the $150 filing fee to HHC pursuant to Tennessee
             Compilation Rules and Regulations 0800-02-21-.07 (2017), for which
             execution may issue as necessary.

          4. Absent an appeal of this order by either party, the order shall become final
             thirty days after its issuance.

          5. HHC shall prepare and submit the SD-1 for this matter within ten calendar
             days of the order becoming final.

ENTERED ON THIS THE 30TH DAY OF JUNE, 2017.

                                    ____________________________________
                                    Judge Joshua Davis Baker
                                    Court of Workers’ Compensation Claims

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                            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 30th___ day of June,
2017.

 Name                      Certified Via Via          Service sent to:
                           Mail      Fax Email
 Mary Vester,                 X            X          1205 Plymouth Avenue
 Self-represented                                     Nashville, Tennessee 37216
 Employee                                             astrofran@aol.com
 Gordon Aulgur,                                 X     Gordon.aulgur@accidentfund.com
 Employer’s Attorney




                                   _____________________________________
                                   Penny Shrum, Clerk
                                   Court of Workers’ Compensation Claims
                                   WC.CourtClerk@tn.gov




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