                                                                                 FILED
                                                                                Oct 17, 2019
                                                                               12:50 PM(CT)
                                                                                 TENNESSEE
                                                                            WORKERS' COMPENSATION
                                                                               APPEALS BOARD

            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Edward Warren                               )   Docket No. 2017-07-0811
                                            )
v.                                          )   State File No. 18507-2016
                                            )
The Pictsweet Co., et al.                   )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Allen Phillips, Judge                       )

                               Affirmed and Remanded

The employee, a mechanic, alleged suffering work-related injuries to his back while
replacing a belt on a conveyor. The claim was accepted as compensable, and the
employer provided workers’ compensation benefits. The parties settled the case prior to
the expiration of the original compensation period, leaving open the employee’s right to
seek increased or extraordinary benefits. At the end of his initial benefit period, the
employee filed a petition seeking increased and/or extraordinary benefits. The employer
filed a motion for summary judgment alleging the employee was unable to show by clear
and convincing evidence that limiting his benefits to the original award would be
inequitable. The trial court denied the motion, concluding the employer did not negate an
essential element of the employee’s claim or show that the evidence was insufficient to
prove an essential element of his claim. The employer has appealed. We affirm the trial
court’s decision and remand the case.

Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in
which Judge Timothy W. Conner and Judge David F. Hensley joined.

Jennifer S. Slager, Memphis, Tennessee, for the employer-appellant, The Pictsweet
Company

Edward L. Martindale, Jr., Jackson, Tennessee, for the employee-appellee, Edward
Warren




                                           1
                            Factual and Procedural Background

       Edward Warren (“Employee”), a fifty-year-old resident of Haywood County,
Tennessee, worked for The Pictsweet Company (“Employer”) as a maintenance
mechanic. On March 8, 2016, Employee injured his back while replacing a belt on a
conveyor. Employer accepted the claim as compensable and provided workers’
compensation benefits, including authorized medical treatment from Dr. Samuel
Schroerlucke, who diagnosed Employee with lumbar spondylolisthesis and a herniated
disc and performed a lumbar fusion. He placed Employee at maximum medical
improvement on September 28, 2017, and assigned a twelve percent impairment rating to
the body as a whole. Employee returned to work for Employer in a less strenuous job
and at a reduced pay rate. However, he continued to experience symptoms and returned
to Dr. Schroerlucke on June 21, 2018, at which time Dr. Schroerlucke assigned additional
permanent restrictions. Employer was unable to accommodate the increased restrictions
and terminated Employee. Employee has not sought employment elsewhere.

        On January 19, 2018, the parties entered into a settlement agreement under which
Employer paid permanent partial disability benefits for Employee’s initial compensation
period. On October 18, 2018, after the expiration of the initial benefit period, Employee
filed a petition for increased benefits pursuant to Tennessee Code Annotated section 50-
6-207 and/or extraordinary benefits under Tennessee Code Annotated section 50-6-242.
Employer filed a motion for summary judgment, asserting that Employee failed to show
by clear and convincing evidence that it would be inequitable to limit his relief to the
original award. Employer argued that, while Employee may be entitled to increased
benefits, he was not entitled to extraordinary benefits because he failed to seek any
employment after being terminated. Employee responded that the failure to return to
work is merely a factor that should be considered in the totality of the circumstances and
that a dispute of material fact existed regarding the extent of his disability.

       The trial court denied Employer’s motion for summary judgment.1 The court
concluded Employer did not successfully negate an essential element of Employee’s
claim or demonstrate that his proof was insufficient as a matter of law to entitle him to
extraordinary benefits. The court further concluded that “employee’s failure to return to
gainful employment is but one factor in the assessment of vocational ability and is not
controlling of the Court’s complete analysis.” Employer appealed.




1
  The trial court considered Employer’s motion to be one for partial summary judgment, as Employer
acknowledged Employee would be entitled to increased benefits under Tennessee Code Annotated section
50-6-207.
                                                 2
                                   Standard of Review

       A trial court’s ruling on a motion for summary judgment is reviewed de novo with
no presumption of correctness. Wallis v. Brainerd Baptist Church, 509 S.W.3d 886, 895
(Tenn. 2016) (“[W]e make a fresh determination of whether the requirements of Rule 56
of the Tennessee Rules of Civil Procedure have been satisfied.”). We are also mindful of
our obligation to construe the workers’ compensation statutes “fairly, impartially, and in
accordance with basic principles of statutory construction” and in a way that does not
favor either the employee or the employer. Tenn. Code Ann. § 50-6-116 (2018).

                                         Analysis

       The issue on appeal is whether Employer has shown that Employee cannot present
clear and convincing evidence that limiting his award of permanent partial disability
benefits to those available under Tennessee Code Annotated section 50-6-207(3)(B) is
inequitable, thereby making summary judgment appropriate. Like the trial court, we
answer in the negative.

       A motion for summary judgment should be granted 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.” Tenn. R. Civ. P. 56.04. The
burden is on the party pursuing summary judgment to demonstrate that no genuine issue
of material fact exists and that the moving party is entitled to a judgment as a matter of
law. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008).

       When the moving party does not bear the burden of production at trial, “the
moving party may either negate an essential element of the non-moving party’s claim or
show that the non-moving party does not have sufficient evidence to prove an essential
element of its claim.” TWB Architects, Inc. v. Braxton, LLC, No. M2017-00423-SC-R11-
CV, 2019 Tenn. LEXIS 296, at *21 (Tenn. July 22, 2019) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 331 (1986)). It is not enough for the moving party to challenge the
lack of evidence or cast doubt on the non-moving party’s ability to present evidence that
proves an element. See Melton v. BNSF Ry., 322 S.W.3d 174, 188 (Tenn. Ct. App.
2010).

       Employer argues that Employee failed to show “it would inequitable to limit his
award to benefits under [Tennessee Code Annotated section] 50-6-207 given the fact that
[Employee] has not even attempted to find work . . . and has instead chosen to rely on
Social Security Disability Benefits.” However, the Special Workers’ Compensation
Appeals Panel has recently held that an employee’s failure to seek employment does not
necessarily serve as an automatic bar to benefits. See Duignan v. Stowers Mach. Corp.,
No. E2018-01120-SC-R3-WC, 2019 Tenn. LEXIS 224, at *25 (Tenn. Workers’ Comp.

                                             3
Panel June 19, 2019) (“The fact that an employee was able to work after an injury in the
same type of employment, earning the same wages, does not ‘per se preclude [a trial]
court from finding [the employee] is totally disabled.’”). To the contrary, employment
after an injury should be considered along with “whether employee, in light of his
education, abilities, physical and/or mental infirmities, is employable in the open labor
market.” Id. at *25-26. “The extent of an injured employee’s vocational disability is a
question of fact for the trial court to determine from all of the evidence presented by the
parties, including lay and expert testimony.” Id. at *22.

       In the present case, the parties dispute the extent of Employee’s vocational
disability and present competing theories on how the trial court should resolve the issue.
The trial court was thus faced with different means of analyzing the issue of Employee’s
vocational disability, an issue that is, ultimately, a determination of fact. As the trial
court observed, an employee’s failure to make any effort to return to work is but one
factor to consider when determining whether Employee is entitled to extraordinary
benefits. We agree and conclude the trial court correctly denied the motion for summary
judgment.

                                       Conclusion

     For the foregoing reasons, the trial court’s order denying partial summary
judgment is affirmed and the case is remanded. Costs on appeal are taxed to Employer.




                                            4
                 TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                   WORKERS’ COMPENSATION APPEALS BOARD

Edward Warren                                         )      Docket No. 2017-07-0811
                                                      )
v.                                                    )      State File No. 18507-2016
                                                      )
The Pictsweet Co., et al.                             )
                                                      )
                                                      )
Appeal from the Court of Workers’                     )
Compensation Claims                                   )
Allen Phillips, Judge                                 )

                                   CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 17th day
of October, 2019.

 Name                              Certified   First Class   Via   Via     Sent to:
                                   Mail        Mail          Fax   Email
 Edward L. Martindale, Jr.                                           X     edwardlmartindale@gmail.com
 Rachal Wallace                                                      X     rachalmwallace@gmail.com
 Jennifer S. Slager                                                  X     slagej2@nationwide.com
 Shelia Boyer                                                        X     boyes2@nationwide.com
 Allen Phillips, Judge                                               X     Via Electronic Mail
 Kenneth M. Switzer, Chief Judge                                     X     Via Electronic Mail
 Penny Shrum, Clerk, Court of                                        X     penny.patterson-shrum@tn.gov
 Workers’ Compensation Claims




Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: WCAppeals.Clerk@tn.gov
