                                                                                 FILED
                                                                               Feb 13, 2020
                                                                               03:45 PM(CT)
                                                                            TENNESSEE COURT OF
                                                                           WORKERS' COMPENSATION
                                                                                  CLAIMS




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

JEFFREY HARDEN,                                     ) Docket No. 2018-08-1535
     Employee,                                      )
v.                                                  )
ADVANCE MFG. CO., INC.,                             ) State File No. 97520-2018
    Employer,                                       )
And                                                 )
TRAVELERS INDEMNITY CO. OF                          ) Judge Allen Phillips
AMERICA,                                            )
    Carrier.                                        )


         COMPENSATION ORDER GRANTING SUMMARY JUDGMENT


       This case came before the Court on Advance's Motion for Summary Judgment.
Advance argued it is entitled to summary judgment because Mr. Harden cannot establish
his injuries arose primarily out of his employment. For the following reasons, the Court
grants the motion.

                                  Procedural History
       Mr. Harden allegedly developed lumbar and cervical radiculopathy from
performing heavy manual labor at Advance. Advance denied the claim, asserting
defenses of notice and causation.
       On September 4, 2019, Advance filed its Motion for Summary Judgment, a
Statement of Undisputed Facts, and supporting affidavits. In its motion, Advance argued
it was entitled to a judgment as a matter of law because Mr. Harden had produced
insufficient proof of causation.
       The Court struck Mr. Harden's response to the motion because he failed to file it
"not later than five days before the hearing" as required by the Tennessee Rules of Civil
Procedure. With the hearing scheduled for November 13, Mr. Harden filed his response
on November 8. Advance moved to strike it as untimely. When excluding the

                                            1
intermediate weekend and Veteran's Day holiday, Advance argued that Mr. Harden filed
his response less than five business days before the hearing. The Court agreed. It reset the
summary judgment hearing for January.

       On December 31, Mr. Harden filed a Motion for Voluntary Nonsuit Without
Prejudice. Advance objected because Tennessee Compilation Rules and Regulations
0800-02-21-.24 prohibits a voluntary dismissal if a summary judgment motion is
pending. The Court agreed and denied Mr. Harden's motion.

       On January 30, the Court heard argument on the Motion for Summary Judgment.
Mr. Harden orally moved the Court to reconsider its order striking his response and
argued that he provided timely notice. Advance reiterated that the medical evidence did
not establish causation.

                                           Facts
       Because it struck Mr. Harden's response, the Court must accept Advance's
Statement of Undisputed Facts as true. So considered, the Court summarizes them as
follows:

   1. In February 2018, Mr. Harden sought emergency treatment for numbness on the
      entire right side of his body, and a provider diagnosed an acute stroke.
   2. Four days later, he saw Dr. Daniel Magro in follow-up for his stroke symptoms,
      and Dr. Magro diagnosed transient cerebral ischemia, prediabetes, and acute right-
      sided weakness.
   3. Mr. Harden saw Dr. Magro for his stroke symptoms over the next five months.
   4. On July 3, Dr. Magro first diagnosed Mr. Harden with cervical and lumbar
      radiculopathy.
   5. Later that month, Mr. Harden asked Advance to file a workers' compensation
      claim, neither mentioning radiculopathy specifically, nor reporting a specific
      incident or date of injury.
   6. During the mediation process, Mr. Harden filed a letter from Dr. Magro in which
      the doctor stated Mr. Harden's lumbar and cervical radiculopathy is "likely
      secondary to 30+ years of hard manual labor."

                                         Analysis
        Summary judgment is appropriate if there is no genuine issue of material fact and
the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04
(20 19). As the party not bearing the burden of proof at trial, Advance may establish its
entitlement to summary judgment either by (1) affirmatively negating an essential
element of Mr. Harden's claim or (2) demonstrating that his evidence is insufficient to
establish his claim. Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235,
264 (Tenn. 2015). If Advance makes a properly supported motion, the burden of proof
shifts to Mr. Harden to demonstrate the existence of a genuine issue of material fact. !d.

                                             2
at 265.

        Advance properly supported its motion with a statement of undisputed facts with
citations to the record. Mr. Harden did not timely respond. At the hearing, Mr. Harden
asked the Court to reconsider its order striking his response as untimely. The Court
declines. Tennessee Rules of Civil Procedure 6.01, and the law interpreting it, make clear
the time restrictions on filings, and the Court followed those requirements. Moreover, Mr.
Harden did not file a motion to reconsider the order striking his response before the
summary judgment hearing.

       However, even if the Court were to consider Mr. Harden's response, the
dispositive issue remains the same: whether he presented adequate proof that his injury
arose primarily out of his employment. The Court holds he did not.

        Mr. Harden must show his alleged injury arose primarily out of his employment.
An injury arises primarily out of the employment only if it contributed more than fifty
percent (50%) in causing the injury when considering all causes. Tenn. Code Ann. § 50-
6-102(14)(A) and (B) (2019). This connection must be shown to a reasonable degree of
medical certainty, which means that, in the opinion of the treating physician, it is more
likely than not considering all causes as opposed to speculation or possibility. !d. at (C)
and (D). Under the undisputed facts, Advance both negated the essential element of Mr.
Harden's claim and demonstrated the evidence was insufficient to establish the causal
relationship between his injury and his employment.

       In reaching this conclusion, the Court is guided by Gamble v. Miller Indus., Inc.,
2017 TN Wrk. Comp. App. Bd. LEXIS 16, (Feb 9, 2017). In Gamble, a physician said
the employee's "complaints [were] "most likely secondary" to a work injury and added
that the employee was "injured during a trauma [.]" (Emphasis added). The Board held
this proof insufficient to establish causation because the physician "did not express an
opinion ... whether the injury contributed more than 50% in causing the need for ...
medical treatment." !d. at *13-14.

       Here, Dr. Magro stated that Mr. Harden's injury was "likely secondary to 30+
years of hard manual labor"; the same type of opinion found inadequate in Gamble.
Therefore, the Court holds the medical evidence before the Court is insufficient to
establish that Mr. Harden's injury arose primarily out of his employment. The Court
grants Advance summary judgment as a matter of law.

THEREFORE, IT IS ORDERED AS FOLLOWS:

   1. Mr. Harden's claim is dismissed with prejudice to its refiling.

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



                                             3
      3. The Court taxes the $150.00 filing fee to Advance under Tennessee Compilation
         Rules and Regulations 0800-02-21-.06, payable to the Clerk within five business
         days of this order becoming final.

      4. Advance shall prepare and submit the SD-2 wi          the Clerk within ten business
         days ofthe date of judgment.

   ENTERED February 13, 2020.               \\

                                                                  Compensation Claims



                                CERTIFICATE OF SERVICE

   I certify that a copy of this Order was sent as indicated on February 13, 2020.
          Name                    Mail           Email       Service Sent To:

Christopher L. Taylor,                               X       ctaylor@taylortoon.com
Employee's Attorney                                          sreynolds@taylortoon.com
Paul T. Nicks,                                       X       pnicks@travelers.com
Employer's Attorney                                          jschmidt@travelers.com



                                             PENN SHRUM, COURT CLERK
                                             Wc.courtclerk@tn.gov




                                                 4
                        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: “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 of the 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 Indigency 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.
                                              NOTICE OF APPEAL
                                      Tennessee Bureau of Workers’ Compensation
                                        www.tn.gov/workforce/injuries-at-work/
                                        wc.courtclerk@tn.gov | 1-800-332-2667

                                                                                  Docket No.: ________________________

                                                                                  State File No.: ______________________

                                                                                  Date of Injury: _____________________



         ___________________________________________________________________________
         Employee

         v.

         ___________________________________________________________________________
         Employer

Notice is given that ____________________________________________________________________
                         [List name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):

□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.

Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________

Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
                           * Attach an additional sheet for each additional Appellant *

LB-1099 rev. 01/20                              Page 1 of 2                                              RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________



Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
                              * Attach an additional sheet for each additional Appellee *




                                             CERTIFICATE OF SERVICE

I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.



                                                           ______________________________________________
                                                            [Signature of appellant or attorney for appellant]




LB-1099 rev. 01/20                                 Page 2 of 2                                        RDA 11082
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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 b y : - - - - - - - - - - - - - - - - - - - -- - - - - - - - -

        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 Comp.$              per month                   beginning
        Other           $            per month                    beginning



LB-11 08 (REV 11/15)                                                                               RDA 11082
9. My expenses are:

        RenUHouse Payment $               per month     Medical/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 11115)                                                                          RDA 11082
