                                                                                   FILED
                                                                              s .eptem.h er 7.• 2 017

                                                                               TN COUR.TOF
                                                                           WORKERS' CO!.!IPENSATION
                                                                                  CL'\.IMS

                                                                                  Time 7:29' ..W

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

KATHLEEN DELORES                            )
LAGUARDIA,                                  )   Docket Number: 2016-02-0380
        Employee,                           )
                                            )
v.                                          )   State File Number: 51640-2016
                                            )
TOTAL HOLDINGS USA, INC. d/b/a              )
HUTCHINSON SEALING SYSTEMS,                 )   Judge Brian K. Addington
         Employer,                          )
                                            )
and                                         )
                                            )
INSURANCE COMPANY OF THE                    )
STATE OF PENNSYLVANIA,                      )
           Insurance Carrier.               )


                  COMPENSATION ORDER GRANTING
             EMPLOYER'S MOTION FOR SUMMARY JUDGMENT


       This matter came before the undersigned Workers' Compensation Judge on
August 30, 2017, on Total Holdings USA, Inc.'s Motion for Summary Judgment. The
Court finds that Total Holdings' Motion is well-taken and for the reasons set forth below
holds it is entitled to summary judgment.

                                  Procedural History

       The following chronology details only the events pertinent to Total Holdings'
Motion for Summary Judgment. On July 11, 2016, Ms. LaGuardia suffered a fall at work
and injured her ankle. Total Holdings denied her claim. The Court conducted an
Expedited Hearing and issued an Order denying benefits, finding that Ms. LaGuardia had
not come forward with sufficient evidence from which it could determine that she was
likely to prevail in a hearing on the merits. Specifically, the Court found that Ms.

                                            1
LaGuardia did not prove an employment hazard caused her to slip and fall. Ms.
LaGuardia did not appeal the Order and Total Holdings filed a Motion for Summary
Judgment asserting that Ms. LaGuardia failed to prove that her injury "arose out of' her
employment.

                                  Findings of the Court

       Ms. LaGuardia alleged on July 11, 2016, she was standing at her work station
when she "stepped from the mat to the concrete floor while moving parts in the course of
my employment. When my right foot touched the concrete floor, my foot slipped and
went airborne. My ankle turned and slammed on the concrete floor." As a result of the
fall Ms. LaGuardia suffered a posterior and medial malleus fracture with syndemosis
disruption that later required surgical intervention.

       Rule of Civil Procedure 56.04 provides for 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, 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 (2016); Payne v. D and D Elec., 2016 TN Wrk.
Comp. App. Bd. LEXIS 21, at *7-8 (May 4, 2016).

       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).
        Specifically, the burden falls to the nonmoving party to produce evidence to
establish the essential elements of the nonmoving party's claim in response to the motion
for summary judgment. "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. at 265 (emphasis
added). Therefore, in this case, Total Holdings' summary judgment motion requires Ms.


                                             2
LaGuardia to submit evidence establishing the essential elements of her workers'
compensation claim.
       One of those elements is that Ms. LaGuardia demonstrate she satisfied the "arising
out of' requirement and establish that her slip and fall was due to a condition of the
employment that presented a peculiar or additional hazard to her. At the interlocutory
stage, Ms. LaGuardia failed to satisfy that requirement. Here, Ms. LaGuardia remained
unable to satisfy that essential element at the summary judgment stage.

        In its Brief in Support of Employer's Motion for Summary Judgment, Total
Holdings argued "Employee cannot prove that her injury "arose out of' employment,
required by Tennessee Code_Annotated section 50-6-102(14), and she cannot meet her
burden of proof under 50-6-239(c)(6)." Total Holdings cited Ms. LaGuardia's statements
during the insurance adjuster's telephone examination and deposition testimony and live
testimony during her hearing regarding her inability to identify what caused her fall.
Additionally, it stated as a material fact that "Employee does not know what caused her
to fall on July 11, 2016." In its brief, Total Holdings cited McClain v. Allied-Bendix,
Inc., 1994 WL 901486, 3 (Tenn. Workers' Comp. Panel 1994), in which the court
determined an employee failed to satisfy the element of "arising out of' requirement
when "there was no condition of the employment that presented a peculiar or additional
hazard to the [employee]."

       Total Holdings did not dispute that Ms. LaGuardia's injury occurred "in the course
of' employment. Instead, it contended that Ms. LaGuardia, "can only speculate as to
what caused her fall" and for that reason she is unable to meet her burden of proving her
injury arose from her employment. Thus, summary judgment should be granted in its
favor.

       In an effort to prove causation, Ms. LaGuardia presented evidence that her treating
physician, Dr. Karen McRae, related her injury to a slip and fall at work. She also
presented evidence of potential items in her workplace that caused her to slip. However,
Dr. McRae's opinion is not dispositive in this case. The real question is not whether she
slipped and fell but whether a work hazard caused Ms. LaGuardia to slip and fall. Ms.
LaGuardia repeatedly explained and testified that she does not know what caused her to
slip and fall. As such, Ms. LaGuardia can only speculate as to what made her slip, which
is insufficient to prove that a hazard of her employment caused the fall and her
subsequent injury. Thus, the Court holds that no genuine issue of material fact exists
concerning whether Ms. LaGuardia's injury arose from her employment and Total
Holdings is entitled to summary judgment.

        For these reasons, the Court grants Total Holdings' Summary Judgment Motion.
Ms. LaGuardia's case is dismissed with prejudice. Total Holdings shall pay the $150.00
filing fee under Tennessee Compilation Rules and Regulations 0800-02-21-.07 (2016),

                                            3
    for which execution may issue as necessary. Additionally, Total Holdings shall file an
    SD-1 within ten days of entry ofthis Judgment. Absent an appeal ofthis order, the order
    shall become final thirty days after issuance.


           It is so ORDERED.

           ENTERED this the 7th day of September, 2017.




                                              BIDANK~~D;t~
                                              Court of Workers' Compensation Claims


                                 CERTIFICATE OF SERVICE

           I hereby certify that a true and correct copy of this Order was sent to the following
    recipients by the following methods of service on this the 7th day of September, 2017.




          Name                 Certified     First Class   Email          Service Sent to:
                                Mail            Mail

Russell Adkins, Esq.                                         X     radkins@wilsonworley .com
Employee's Attorney

Michael Forrester, Esq.                                      X      forrest@hsdlaw .com
Employer's Attorney




                                              PE~~~U~~
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                                              Court ofW kers' Compensation Claims
                                              WC.CourtClerk@tn.gov




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