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

 Buster Barrett,                            )   Docket No. 2015-06-0186
               Employee,                    )   State File No. 78378-2014
                                            )   Date of Injury: August 27, 2014
 v.                                         )
                                            )
 Lithko Contracting, Inc.,                  )   Docket No. 2015-06-0188
            Employer,                       )   State File No. 24788-2015
                                            )   Date of Injury: January 15, 2015
                                            )
 And                                        )   Docket No. 2015-06-0189
                                            )   State File No. 24789-2015
 Ace American Insurance                     )   Date of Injury: January 21, 2015
 and The Travelers,                         )
                                            )
              Carriers.                     )   Judge Joshua Davis Baker

      ORDER GRANTING IN PART, AND DENYING IN PART, TRAVELERS
                MOTION FOR SUMMARY JUDGMENT

       This case came before the Court on January 23, 2017, for a hearing of the
Travelers Indemnity Company’s Motion for Summary Judgment. Buster Barrett opposed
the motion; Ace American Insurance did not respond. Upon review of the motion,
statement of material facts and supporting memorandum, the Court grants Travelers’
Motion for Summary Judgment of the claim with state file number 78378-2014. The
Court denies Travelers’ Motion for Summary Judgment of claims with state file numbers
24788-2015, and 24789-2015 at this time. The Court will reconsider the motion for in
these two claims, upon request from Travelers, after Mr. Barrett attains maximum
medical improvement and the parties have reasonable opportunity to collect expert
medical proof on causation.

                                      Background

       Mr. Barrett filed three Petitions for Benefit Determination alleging injury on three
dates: August 27, 2014 (state file number 78378-2014), January 15, 2015 (state file
number 24788-2015), and January 21, 2015 (state file number 24789-2015). The Dispute
Certification Notice for each file lists Mr. Barrett’s back, left hip and shoulder as the
injured body parts. Lithko had two insurance carriers over the time period Mr. Barrett’s
accidents occurred, and which carrier would be required to pay for these claims was the
central dispute at the expedited hearing.

       In an interlocutory, expedited hearing order, this Court held that Mr. Barrett’s
injuries stemmed from the August 27, 2014 accident and determined that Ace American
Insurance was the responsible insurance carrier. At that hearing, the parties stipulated
Ace American Insurance provided Lithko’s workers’ compensation insurance up to
August 31, 2014. Travelers acknowledged it provided coverage through at least January
21, 2015. During the hearing, Mr. Barrett testified all his injuries arose from the August
27, 2014 incident. Additionally, the authorized treating physician for Mr. Barrett’s back,
Dr. Scott Standard, testified in a deposition that the August 2014 incident was “the
primary causative injury for the exacerbation and advancement of his lumbar condition.”

        After the expedited hearing, Dr. William Beauchamp, the authorized treating
physician for Mr. Barrett’s shoulder, provided an affidavit identifying “the primary cause
of his shoulder injury [as] his work injury of August 27, 2014.” The affidavit was filed in
support of a motion for temporary disability benefits.

       In support of its motion for summary judgment of all three claims, Travelers
argues the opinions from the authorized treating physicians attributing causation of Mr.
Barrett’s injuries to the August 2014 injury, Mr. Barrett’s testimony at the expedited
hearing, and this Court’s interlocutory order show Mr. Barrett’s injuries resulted from the
August 27, 2014 accident. Because it was not Lithko’s insurance carrier on that date,
Travelers claims it has no liability and should be dismissed from the case.

       In opposition to the motion, Mr. Barrett argues Dr. Beauchamp signed an affidavit
containing that opinion but has not given a deposition. While he admitted the majority of
material facts cited by Travelers are undisputed, he denied Dr. Beauchamp testified his
shoulder injury is causally related to the August 27, 2014 accident. He argues that
summary judgment should be denied until the parties have had the opportunity to depose
Dr. Beauchamp to secure testimony concerning the cause of his shoulder injury.

                       Findings of Fact and Conclusions of Law

       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.” Aside from Rule 56, in 2011,

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the Tennessee General Assembly codified the burden of proof 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 (2015); Payne v. D and D Elec., 2016 TN Wrk. Comp.
App. Bd. LEXIS 21, at *7-8 (May 4, 2016).

       In order to prevail, Travelers, as the moving party, must provide “a separate
concise statement of material facts as to which the moving party contends there is no
genuine issue for trial.” Tenn. R. Civ. P. 56.03. In order to avoid summary judgment,
Mr. Barrett, as the nonmoving party, must then “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, despite the passage of discovery deadlines, at a future trial.” Id. at 265
(emphasis added). However, in instances where a party moves for summary judgment
before adequate time for discovery has transpired, the nonmoving party may request a
continuance to conduct additional discovery. See id.

        Applying these standards, the Court holds Travelers has presented sufficient
evidence at the summary judgment stage to show there is no genuine issue of material
fact concerning the August 27, 2014 accident. The Court further holds Travelers is
entitled to judgment as a matter of law with respect to that claim. The only true material
fact concerning Travelers’ liability in that matter concerns the coverage agreement.
While Mr. Barrett stated in his response to Travelers’ statement of material facts that he
was unsure whether Travelers insured Lithko at the time of that accident, the parties all
stipulated at the expedited hearing that Ace American was the insurance carrier on
August 27, 2014. Because Travelers did not insure Lithko at the time of the August 2014
accident, no rational fact finder could hold Travelers liable for Mr. Barrett’s injury.
Accordingly, the Court grants Travelers’ motion for summary judgment in state file
number 78378-2014 and dismisses it from that case.


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       As to the remaining claims, the Court declines to enter summary judgment in
Travelers favor at this time. While the proof developed at this point indicates Mr.
Barrett’s injuries all stem from the August 27, 2014 accident, Mr. Barrett has not reached
maximum medical improvement for his shoulder claim, and the parties have not deposed
Dr. Beauchamp. Furthermore, the Court has yet to enter a discovery order in this case
and will not likely do so until after Mr. Barrett attains maximum medical improvement.
After such time, and after the parties have an opportunity to conduct discovery, the Court
will reconsider Travelers’ motion for summary judgment in the two remaining claims.

IT IS, THEREFORE, ORDERED as follows:

   1. All claims against Travelers for injuries Mr. Barrett suffered in a workplace
      accident on August 27, 2014, are dismissed with prejudice.

   2. The Court denies the Travelers’ motion for summary judgment in the two
      remaining claims having dates of injury on January 15 and 21, 2015.

   3. This order is not final.




ENTERED ON THIS THE 31ST DAY OF JANUARY, 2017.


                                  _____________________________________
                                  Joshua Davis Baker, Judge
                                  Court of Workers’ Compensation Claims




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                           CERTIFICATE OF SERVICE
       I hereby certify that a true and correct copy of the foregoing was sent to the
following recipients by the following methods of service on this the ____day
                                                                     31st    of January,
2017.
 Name                      Certified Via   Via   Service sent to:
                           Mail            Email
                                     Fax
 Jill Draughon,                                  jdraughon@hughesandcoleman.com
 Employee’s Counsel
 John Barringer, Counsel                         jbarringer@manierherod.com
 for ACE American
 Insurance/Gallagher
 Bassett
 Wm. Ritchie Pigue,                              rpigue@tpmblaw.com
 Counsel for Travelers
 Patrick Ruth, Second                            patrick.ruth@tn.gov
 Injury Fund




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




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