                                                                               FILED
                                                                             Nov 20, 2018
                                                                             10:54 AM(CT)
                                                                           TENNESSEE COURT OF
                                                                          WORKERS' COMPENSATION
                                                                                 CLAIMS




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

IMAD LAGEL,                               )   Docket No. 2018-06-0130
                                          )
             Employee,                    )
v.                                        )
                                          )
ELWOOD STAFFING SERVICES, LLC,            )   State File No. 54870-2016
                                          )
             Employer,                    )
And                                       )
                                          )
ZURICH AMERICAN INS. CO.,                 )   Judge Joshua Davis Baker
         Carrier.                         )


               COMPENSATION HEARING ORDER GRANTING
                  MOTION FOR SUMMARY JUDGMENT


       This case came before the Court on November 19, 2018, for a hearing of Elwood
Staffing’s motion for summary judgment. Imad Lagel did not respond to the motion.
The Court grants Elwood’s motion and dismisses this claim with prejudice.

                         Procedural History and Material Facts

      The Court previously convened an expedited hearing and issued an order denying
Mr. Lagel’s request for additoinal medical benefits. Elwood’s motion for summary
judgment followed. As Mr. Lagel filed no response to the motion, the Court’s factual
summary comes entirely from Elwood’s statement of undisputed material facts.

       Mr. Lagel worked as a temporary employee for Elwood Staffing. On July 19,
2016, he developed right foot pain and swelling while stacking boxes onto pallets.
Elwood authorized treatment and, after an emergency-room visit, Mr. Lagel chose U.S.
Healthworks from a panel of physicians. There, Dr. Harold V. Nevels diagnosed a right
ankle sprain but discharged him to full duty work on July 20, 2016. On July 23, Dr.
Nevels placed him at maximum medical improvement (MMI). His pain resolved but he
quit working for Elwood about a week after the date of his alleged injury.

      On August 9, 2016, Mr. Lagel returned to the emergency room when his pain
reemerged. The ER physician diagnosed him with gout, and his symptoms calmed
somewhat after this second ER visit.

      Then, in 2017, Mr. Lagel again began experiencing foot pain and went on his own
to Vanderbilt University Medical Center. Mr. Lagel then filed a Petition for Benefit
Determination and the adjuster agreed to authorize a follow-up visit with Dr. Nevels.

       At the follow-up, Dr. Nevels determined Mr. Lagel’s symptoms were unrelated to
his July 19, 2016, work-related injury. Instead, Dr. Nevels determined his foot and ankle
pain resulted from osteoarthritic changes.

                                    Law and Analysis

        Tennessee Rule of Civil Procedure 56.04 states summary judgment is appropriate
if there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. To meet this standard, Elwood must either submit
affirmative evidence that negates an essential element of Mr. Lagel’s claim or
demonstrate that his evidence is insufficient to establish an essential element of his claim.
Tenn. Code Ann. § 20-16-101 (2017); see also Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Elwood carries this burden, then Mr.
Lagel “may not rest upon the mere allegations or denials of [his] pleading” but must
respond by producing facts showing a genuine issue for trial. Id.; Tenn. R. Civ. P. 56.06.
The Court holds that Elwood met its burden of demonstrating Mr. Lagel cannot establish
an essential elements of his case—the causal relationship between is workplace injury
and his need for medical treatment.

       Mr. Lagel failed to respond to the motion. While his failure to respond does not
mandate entry of summary judgment, it does prevent him from disputing any of the facts
asserted in Elwood’s statement of material facts. See United Serv’s Inds., Inc. v. Sloan,
1988 Tenn. App. LEXIS 592, *4 (Tenn. Ct. App. Sept. 28, 1988) (“An adverse party’s
failure to respond to a motion for summary judgment does not relieve the moving party
of the burden of establishing an entitlement to judgment as a matter of law; rather, an
absence of response only precludes factual disputes.”). Additionally, although Mr. Lagel
represents himself in this claim, he still “must comply with the same standards to which
lawyers must adhere.” Burnette v. K-Mart Corp., 2015 TN Wrk. Comp. App. Bd. LEXIS
2, at *6 (Jan. 20, 2015). Accordingly, because he failed to respond to the motion, the
Court accepts the facts provided by Elwood: chiefly that Dr. Nevels found no causal
relationship between his workplace accident and his ongoing need for medical treatment
for an unrelated condition.


                                             2
        The central focus of Elwood’s motion is that Mr. Lagel cannot prove his need for
additional medical treatment arose from his January 19, 2016 workplace accident due to a
lack of medical proof. See Wheetley v. State, No. M2013-01707-WC-R3-WC, 2014
Tenn. LEXIS 476, at *5 (Tenn. Workers’ Comp. Panel June 25, 2014) (“In all but the
most simple and routine cases, an employee must prove the causal relationship between
an injury and a workplace accident through expert medical proof.”). As the nonmoving
party, Mr. Lagel 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, at 265.
“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.” Id. (Emphasis added.)

       All the evidence supports the finding that Mr. Lagel’s need for medical treatment
stemmed from either his preexisting gout or an osteoarthritic condition unrelated to his
work for Elwood. Because Mr. Lagel failed to respond with any expert proof to support a
causal connection between his workplace injury and his current need for medical
treatment, he failed to carry this burden.

IT IS, THEREFORE, ORDERED AS FOLLOWS:

   1. The Court grants Elwood’s motion for summary judgment and dismisses Mr.
      Lagel’s claim with prejudice to its refiling.

   2. Absent an appeal to the Appeals Board, this order shall become final in thirty
      days.

   3. The Court assesses the $150.00 filing fee against Elwood under Tennessee
      Compilation Rules and Regulations 0800-02-21-.07, for which execution may
      issue as necessary.

   4. Elwood shall pay the filing fee within five business days of the order becoming
      final.

   5. Elwood shall file form SD-2 with the clerk, via email at wc.courtcleerk@tn.gov,
      within ten business days of this order becoming final.

IT IS SO ORDERED.

ENTERED ON NOVEMBER 20, 2018.




                                            3
                                        _____________________________________
                                        Joshua Davis Baker, Judge
                                        Court of Workers’ Compensation Claims




                           CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the foregoing was sent to the following
recipients by the following methods of service on November 20, 2018.


 Name                     Certified    Fax       Email   Service sent to:
                           Mail
 Imad Lagel,                 X                    X      5756 Mount View Rd.
 Self-represented                                        Antioch, TN 37013
 Employee                                                Lg_imad@hotmail.com
 David Deming,                                    X      ddeming@manierherod.com
 Employer’s Attorney




                                        ____________________________________
                                        Penny Shrum, Clerk of Court
                                        Court of Workers’ Compensation Claims
                                        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.
 '                                                                                                                       I




                                    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
