FILED
April 17,2018
TN COURT OF

WORKERS’ COMPENSATION
CLAIMS

Time: 1:45 P.M. EASTERN

 

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

AT KNOXVILLE

JEFFREY BREWER, ) Docket No. 2015-02-0451
Employee, )

V. )

G.UB.MK CONSTRUCTORS, ) State File No. 91751-2015
Employer, )

And )

ZURICH NORTH AMERICA, ) Judge Lisa A. Lowe
Carrier. )

 

COMPENSATION ORDER GRANTING SUMMARY JUDGMENT

 

This matter came before the Court on G.UB.MK Constructors’ Motion for
Summary Judgment, Memorandum of Law, and Statement of Undisputed facts filed on
February 12, 2018. Mr. Brewer filed a response on March 28, and G.UB.MK replied on
April 4. The Court heard oral argument on April 3.

The determinative legal issues are whether this Court has subject matter
jurisdiction and whether G.UB.MK demonstrated that Mr. Brewer’s proof is insufficient
to establish: (1) his alleged occupational exposure conditions arose primarily out of and
in the course and scope of his employment; and (2) he suffered any partial or total
incapacity from working.

Procedural History

Mr. Brewer alleges occupational exposure due to coal fly ash and filed suit in
Roane County Chancery Court claiming that court had jurisdiction because his injury
occurred prior to July 1, 2014. G.UB.MK filed a Petition for Benefit Determination on
November 18, 2015, claiming jurisdiction lies with the Court of Workers’ Compensation
Claims since Mr. Brewer’s last exposure occurred after July 1, 2014 and he was not
partially or totally incapacitated prior to that time. The mediating specialist issued the
Dispute Certification Notice on January 14, 2016. G.UB.MK filed a Motion for
Summary Judgment in the Chancery Court case and purportedly the Chancery Court has

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yet to issue its ruling.

The parties participated in numerous status conferences and a scheduling hearing
before this Court. When addressing discovery issues, the Court ordered Mr. Brewer to
identify all expert witnesses on which he intended to rely by November 17, 2017, and set
the Compensation Hearing for May 22, 2018. When Mr. Brewer failed to identify his
expert witnesses by that deadline, G.UB.MK filed a motion to compel discovery and the
Court ordered Mr. Brewer to provide his discovery responses and identify his expert
witnesses by February 2, 2018, but Mr. Brewer failed to do so. The Court found that Mr.
Brewer never filed an original response to discovery requests and failed to provide any
justification for his failure to comply with this Court’s prior orders. He also failed to
identify any expert witnesses, a mere two months prior to the Compensation Hearing. As
a result, the Court granted G.UB.MK’s motion for sanctions and precluded Mr. Brewer
from presenting expert evidence at the Compensation Hearing.

Pending Motion for Summary Judgment

G.UB.MK moved for summary judgment as a matter of law, asserting Mr. Brewer
cannot establish his alleged occupational conditions arose primarily out of and in the
course and scope of his employment. In support of its motion, it asserted that since the
Court precluded Mr. Brewer from presenting expert proof, he cannot establish that his
alleged injury arose primarily out of and in the course and scope of employment. In fact,
Mr. Brewer, in response to Request for Admissions, admitted that no physician has
opined that his employment has contributed more than 50% in causing his alleged
injuries considering all causes.

Additionally, G.UB.MK noted that Mr. Brewer participated in multiple hearings
before this Court and never raised the issue of jurisdiction until faced with a motion for
summary judgment. It cited Shuler v. Eastman, No. E2016-02292-SC-R3-WC, 2017
Tenn. LEXIS 721, at *8 (Tenn. Workers’ Comp. Panel Nov. 17, 2017) (internal citations
omitted), for support of this Court’s jurisdiction because, “the applicable statute in cases
involving occupational diseases is that in effect on the date on which the employee
becomes disabled as a result of the disease, rather than that in effect on the date on which
he was last exposed to the agent causing the disease.”

Applying Shuler, G.UB.MK asserted Mr. Brewer has not become disabled as a
result of his alleged occupational disease. It included in its Statement of Material Facts
that: Mr. Brewer is and has been a commercial truck driver; no physician has restricted
Mr. Brewer from working; and Mr. Brewer has never been taken off work or been
incapacitated from working as result of his alleged occupational exposures or illnesses.
As such, it argued Mr. Brewer’s claim is not ripe at this time and nothing would preclude
him from filing an action in the future should he become partially or totally incapacitated
at a later date.
In opposition to the summary judgment motion, Mr. Brewer asserted a genuine
issue of material fact exists as to the issue of causation. He relied on Dr. Wallace’s C-32
report and the affidavits of Drs. Cox and Rea. While Mr. Brewer attached Dr. Wallace’s
C-32 to his response, he failed to provide affidavits from Drs. Cox and Rea.
Additionally, although he did not identify Dr. Wallace as an expert witness by the Court-
ordered deadline, he argued that G.\UB.MK had Dr. Wallace’s C-32 at a prior Benefit
Review Conference. In the C-32, Dr. Wallace checked “yes” to the question,
“Considering the nature of employee’s occupation and medical history along with
diagnosis and treatment, does this injury more probably than not arise out of the
employee’s employment.” Mr. Brewer argued Dr. Wallace’s opinion supports causation.

As to jurisdiction, Mr. Brewer argued this Court lacks jurisdiction over this claim
because his exposure occurred in 2013 and he reported his injury at that time. He
asserted that the “happening” of the event triggers the date of injury and the “happening”
occurred in 2013, which means this Court lacks jurisdiction.

Legal Principles and Analysis

Tennessee Code Annotated section 20-16-101 (2017) and the Tennessee Rules of
Civil Procedure (2017) provide the summary judgment standards. Specifically, Rule
56.06 provides that if a motion for summary judgment is properly made and supported,
“an adverse party may not rest on mere allegations or denials of the adverse party’s
pleadings, but his or her response, by affidavits or as otherwise provided in [the] rule,
must set forth specific facts showing that there is a genuine issue for trial.” Moreover,
“Tilf the adverse party does not so respond, summary judgment, if appropriate, shall be
entered against the adverse party.” Payne v. D and D Elec., 2016 TN Wrk. Comp. App.
Bd. LEXIS 21, at *7-8 (May 4, 2016).

Moreover, G.UB.MK, as 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.

In response, Mr. Brewer, 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 favor of
the nonmoving party.” Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235,
265 (Tenn. 2015). “The 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.” Jd. (emphasis added).
Applying these standards, the Court considers Tennessee Code Annotated section
50-6-303(a)(1), which governs occupational diseases and provides in pertinent part:

When the employee and employer are subject to this chapter, the partial or
total incapacity for work or the death of an employee resulting from an
occupational disease. . . shall be treated as the happening of an injury by
accident or death by accident, and the employee, or in case of the
employee’s death, the employee’s dependents, shall be entitled to
compensation as provided in this chapter. (Emphasis added.)

Considering section 50-6-303(a)(1), the Court finds the Shuler case instructional.
Mr. Shuler retired in 1999 and was diagnosed with bladder cancer in 2015, which
allegedly resulted from exposure to toxic chemicals during his employment. Mr. Shuler
argued his injury occurred in 1999 and he filed suit in circuit court. His employer filed a
motion to dismiss, asserting the Court of Workers’ Compensation Claims had exclusive
jurisdiction. The circuit court granted the motions, dismissed Mr. Shuler’s claim, and he
appealed. The Panel affirmed the dismissal, holding Mr. Shuler became disabled from
working at the time of his diagnosis in December 2015, and as such his injury occurred
after July 1, 2014 and Tennessee Code Annotated section 50-6-237 applied. The Court
also noted the following:

The applicable statute in cases involving occupational diseases is that in
effect on the date on which the employee becomes disabled as a result of
the disease, rather than that in effect on the date on which he was last
exposed to the agent causing the disease.

. . .the statute of limitations for filing a claim based on an occupational
disease is not triggered without first an incapacity for work; and second
either actual or constructive knowledge an occupational disease is the cause
of the incapacity for work. Jd. at *8.

Applying these principles, the Court holds that it has proper jurisdiction over this
case. Although Mr. Brewer reported his injury in 2013, his last exposure occurred on
August 29, 2014, and the statute in effect at the time he becomes disabled will be
controlling. However, Mr. Brewer failed to establish partial or total incapacity from
working. Mr. Brewer did not refute G.UB.MK’s statement of undisputed facts that he
continues to work as a full-time commercial truck driver and that no physician has
restricted him from work as a result of his alleged occupational illness. As a result, the
Court agrees with G.UB.MK that Mr. Brewer’s claim is not ripe at this time.

Even if Mr. Brewer’s claim were ripe, he lacks sufficient evidence to establish
causation. Dr. Wallace’s C-32 is the only medical proof Mr. Brewer offered in response
to the summary judgment motion. Mr. Brewer failed to identify Dr. Wallace, or any
expert witnesses for that matter, by the Court-ordered deadline. As a result, the Court

4
previously precluded Mr. Brewer from presenting expert proof at the Compensation
Hearing, which makes Dr. Wallace’s C-32 inadmissible.

However, had the Court considered Dr. Wallace’s C-32, it fails to establish
causation. Dr. Wallace completed the C-32 section related to injuries prior to July 1,
2014, and marked “yes” to the question, “Considering the nature of employee’s
occupation and medical history along with diagnosis and treatment, does this injury more
probably than not arise out of the employee’s employment.” Having found this Court has
jurisdiction, Dr. Wallace’s opinion fails to meet the required statutory burden that Mr.
Brewer’s employment with G.UB.MK contributed more than fifty percent in causing his
alleged injury, considering all causes. See Tenn. Code Ann. 50-6-102(14). Under the
section related to injuries on or after July 1, 2014, Dr. Wallace left blank the question,
“Considering employee’s medical history, diagnosis and treatment, and all other available
information regarding the onset and causes of employee’s injury, is it more likely than
not, as opposed to speculation or possibility, that employee’s injury arises primarily out
of and in the course and scope of employment.

Accordingly, the Court grants G.UB.MK’s Motion for Summary Judgment. Since
Mr. Brewer has yet to become partially or totally incapacitated from working from his
alleged occupational exposure, the Court dismisses the case without prejudice. Nothing
in this order shall preclude Mr. Brewer from making an occupational disease claim
should he become partially or totally incapacitated from working at a later date.

The Court taxes the filing fee of $150.00 to G.UB.MK under Tennessee
Compilation Rules and Regulations Rule 0800-02-21-.07 (2017), to be paid within five

business days of the entry of this Order. In addition, G.-UB.MK shall prepare and submit
an SD-1 form within ten business days of the date of this order.

IT IS SO ORDERED.

ENTERED April 17, 2018.

weak lure

LISA A. LOWE, JUDGE
Court of Workers’ Compensation Claims
CERTIFICATE OF SERVICE

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

 

 

 

 

 

 

 

 

 

Name Certified | Fax | Email | Service sent to:

Mail
James K. Scott, x jimscott264@gmail.com
Employee’s Counsel
Karen Crutchfield, x kcrutchfield@wimberlylawson.com
Employer’s Counsel

 

.. Nl ee)

PENNY SHRUM, COURT CLERK KhtAS
we.courtclerk@tn.gov
