                                                                                 FILED
                                                                               May 23, 2019
                                                                               08:22 PM(CT)
                                                                             TENNESSEE COURT OF
                                                                            WORKERS' COMPENSATION
                                                                                   CLAIMS




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

Althea Myers,                               )   Docket No. 2018-06-1243
            Employee,                       )
v.                                          )   State File No. 43894-2018
Tyson Foods, Inc.,                          )
           Self-insured Employer.           )   Judge Dale Tipps




 COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT



      This matter came before the Court on Tyson Foods, Inc.’s Motion for Summary
Judgment. The issue is whether Tyson is entitled to summary judgment on grounds that
Ms. Myers’s injury did not arise primarily out and in the course and scope of her
employment, an essential element of her claim. For the reasons below, the Court grants
Tyson’s motion.
                                 Procedural History
      Ms. Myers alleged she suffered a work-related injury to her right knee on April 5,
2018. Tyson denied the claim, and Ms. Myers filed a Petition for Benefit Determination
seeking medical benefits.
       Following an expedited hearing, the Court found that Ms. Myers was not likely to
establish at a hearing on the merits that her knee symptoms arose primarily out of her
employment. However, it ordered Tyson to authorize an appointment with Dr. David
Moore, whom Ms. Myers had selected from a panel. Dr. Moore declined to see Ms.
Myers as a patient, so she selected Dr. Damon Petty as her authorized physician.
     After Dr. Petty examined Ms. Myers, Tyson filed this Motion for Summary
Judgment. Ms. Myers filed no response but participated in the telephonic hearing on
May 21, 2019.




                                           1
                                           Facts
        Tyson filed a statement of undisputed material facts with citations to the record in
compliance with Tennessee Rules of Civil Procedure 56.03. Because Ms. Myers failed to
file a response to the statement, the Court deems them admitted and summarizes them as
follows:
   1. Ms. Myers did not sustain an injury to her right knee that arose primarily out of
      and in the course and scope of employment on April 5, 2018.
   2. Ms. Myers’s knee pain is due to patellofemoral arthritis.
   3. The April 5, 2018 incident at work did not contribute more than fifty percent in
      causing the need for medical treatment.
       Based on these facts, Tyson argued the Court should grant summary judgment
because it affirmatively negated an essential element of Ms. Myers’s claim – that her
injury was primarily caused by a workplace fall – and that the facts are insufficient for
Ms. Myers to prove this element.
       Although Ms. Myers filed no response, she participated in the hearing. She stated
she could not understand how she could fall and have arthritis in her knee without these
two facts being related.
                                    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 of law.” Tenn. R. Civ. P. 56.04 (2018).

       As the moving party, Tyson must do one of two things to prevail on its motion: (1)
submit affirmative evidence that negates an essential element of the Ms. Myers’s claim,
or (2) demonstrate that Ms. Myers’s evidence is insufficient to establish an essential
element of her claim. 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 Tyson is
successful in meeting this burden, Ms. Myers must then establish that the record contains
specific facts upon which the Court could rule in her favor. Rye, at 265.
       The essential element at issue in this case is that Ms. Myers must demonstrate that
she suffered “an injury by accident . . . arising primarily out of and in the course and
scope of employment, that causes death, disablement or the need for medical treatment of
the employee.” Tenn. Code Ann. § 50-6-102(14).
       The undisputed facts, derived from Dr. Petty’s affidavit, are that Ms. Myers
suffers from arthritis that did not arise primarily out of and in the course and scope of her
employment. Thus, Tyson has met its burden of negating an essential element of the

                                             2
claim. This means Ms. Myers must show that the record contains specific facts upon
which the Court could find in her favor.
       As noted above, Ms. Myers filed no response to the Statement of Undisputed
Facts, provided no additional evidence, and made no citations to the record to refute the
facts put forward by Tyson. Ms. Myers’s belief that there must be some connection
between her arthritis and her workplace fall is understandable. However, the law does
not allow the Court to assume the existence of medical causation or substitute the Court’s
judgment for Dr. Petty’s professional medical opinion. In the absence of actual evidence,
Ms. Myers’s conjecture is insufficient to establish that her condition arose primarily out
of her employment.
       Ms. Myers’s evidence is therefore insufficient to establish an essential element of
her claim, and the Court must hold that Tyson is entitled to summary judgment as a
matter of law.
IT IS, THEREFORE, ORDERED as follows:

   1. Tyson’s Motion for Summary Judgment is granted, and Ms. Myers’s claim is
      dismissed with prejudice to its refiling.

   2. Absent appeal, this order shall become final thirty days after entry.

   3. The Court taxes the $150.00 filing fee to Tyson Foods, Inc. under Tennessee
      Compilation Rules and Regulations 0800-02-21-.07 payable to the Clerk within
      five days of this order becoming final.

   4. Tyson shall prepare and submit the SD-2 with the Clerk within ten days of the date
      of judgment.

      ENTERED May 23rd, 2019.



                                          ______________________________________
                                          Judge Dale A. Tipps
                                          Court of Workers’ Compensation Claims




                                             3
                           CERTIFICATE OF SERVICE

      I certify that a copy of this Order was sent to the following recipients by these
methods of service on May 23rd, 2019.


 Name                     Certified   Via        Via    Service sent to:
                           Mail       Fax       Email
 Althea Myers, Self-         X                    X     808 Hillmore Dr.,
 Represented Employee                                   Nashville TN 37218
                                                        thea63myers@gmail.com
 Michael Haynie,                                 X      mhaynie@manierherod.com
 Employer’s Attorney




                                        ______________________________________
                                        Penny Shrum, Court Clerk
                                        Wc.courtclerk@tn.gov




                                            4
                                 II
                                  I                                                       'I



                          Compensation Hearing Order Right to Appeal:

     If you disagree with this Compensation Hearing Order, you may appeal to the Workers'
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers'
Compensation Appeals Board, you must:

    1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal," and file
       the form with the Clerk of the Court of Workers' Compensation Claims within thirty
       calendar days of the date the compensation hearing order was filed. When filing the
       Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if
       represented).

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau's
      website or any Bureau office) seeking a waiver ofthe filing fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of lndigency will
      result in dismissal of your appeal.

   3~   You bear the responsibility of ensuring a complete record on appeal. You may request
        from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court
        reporter must prepare a transcript and file it with the court clerk within fifteen calendar
        days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
        evidence prepared jointly by both parties within fifteen calendar days of the filing of the
        Notice of Appeal. The statement of the evidence must convey a complete and accurate
        account of the hearing. The Workers' Compensation Judge must approve the statement
        of the evidence before -the record is submitted to the Appeals Board. If the Appeals
        Board is called upon to review testimony or other proof concerning factual matters, the
        absence of a transcript or statement of the evidence can be a significant obstacle to
        meaningful appellate review.

   4. After the Workers' Compensation Judge approves the record and the court clerk transmits
      it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
      party has fifteen calendar days after the date of that notice to submit a brief to the
      Appeals Board. See the Practices and Procedures of the Workers' Compensation
      Appeals Board.

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
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, the trial court's
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann.§ 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
II                                                                                                                      I.
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                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                      800-332-2667

                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ __ _ _ _ _ __                       2. Address: - - - - - - - -- - - --

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - -- - - -- -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -

             - - - - - - - - - - - - - -- --                  Relationship: - - - - - -- - - -- - -

             - - - - - - - - - - -- - -- - - Relationship: - - - -- - -- - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - -- - - -- -

     6. I am employed by: - - - - - - - - - - -- - - -- - - - - - -- - - -- - -

             My employer's address is: - - - - -- - - - -- - - - - - -- - -- - - - -

             My employer's phone number is: - - - -- - - - -- - - - - - -- - - -- - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ __

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are:     ! ~                                                      li
                                                                                  I
                          '

        Rent/House Payment $              per month     Med icai/Dental $ _ _ ___ per month

        Groceries       $           per month           Telephone       $ _ __ _ _ per month
        Electricity     $           per month           School Supplies $ _ _ _ _ _ per month
        Water           $           per month           Clothing        $ _ _ _ _ _ per month
        Gas             $           per month           Child Care      $ _ _ _ _ _ per month
        Transportation $            per month           Child Support   $ _ _ _ _ _ per month
        Car             $            per month
        Other           $           per month (describe:


10. Assets:

        Automobile              $ _ _ _ __
                                                        (FMV) - - - - - - - - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ __
                                                        (FMV) - - - - - - - - - -
        Other                   $ _ _ _ __              Describe:_ _ _ _ __ _ __ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

____ dayof _____________________ , 20_ __




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ _ __




LB-1108 (REV 11/15)                                                                          RDA 11082
