                                                                                FILED
                                                                               Oct 02, 2018
                                                                              11:54 AM(CT)
                                                                            TENNESSEE COURT OF
                                                                           WORKERS' COMPENSATION
                                                                                  CLAIMS




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

STEPHEN SWEENEY,                           )   Docket No. 2018-06-0556
          Employee,                        )
                                           )
v.                                         )
                                           )   State File No. 77996-2017
JONES BROTHERS,                            )
          Employer,                        )
                                           )
TWIN CITY FIRE INSURANCE, CO.,             )   Judge Joshua Davis Baker
           Insurer.                        )


               COMPENSATION HEARING ORDER GRANTING
                  MOTION FOR SUMMARY JUDGMENT


       This case came before the Court on September 24, 2018, for a hearing of Jones
Brothers’ motion for summary judgment. Stephen Sweeney did not respond to the
motion. The Court grants Jones Brothers’ motion and dismisses this claim with
prejudice.

                       Procedural History and Material Facts

       Mr. Sweeney suffered an injury that Jones Brothers initially accepted; it began
providing temporary disability and medical benefits. After further investigation, Jones
Brothers filed a Petition for Benefit Determination challenging compensability and
stopped providing benefits to Mr. Sweeney.

       The Court held a scheduling hearing on June 20, 2018. Blakely Matthews
appeared on Jones Brothers’ behalf. The Court sent Mr. Sweeney a notice of the hearing,
but he failed to appear.

      At the scheduling hearing, the Court set a compensation hearing for December 6,
and Jones Brothers designated Dr. Jeffrey Hazlewood as its medical expert. Dr.
Hazlewood found no causal relationship between Mr. Sweeney’s injury and his
workplace accident. The Court gave Mr. Sweeney until August 6 to designate his expert.

       The Court sent a copy of the scheduling order containing the expert-witness
disclosure date to Mr. Sweeney via certified mail, and the post office returned it marked
“unclaimed.” Mr. Sweeney missed the August 6 deadline for expert-witness designation,
and Jones Brothers moved for summary judgment. Jones Brothers sent a copy of its
motion for summary judgment to Mr. Sweeney via regular and certified mail. It received
no response.

                                    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, Jones Brothers must either submit
affirmative evidence that negates an essential element of Mr. Sweeney’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 Jones Brothers carries this burden, then
Mr. Sweeney “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 Jones Brothers met its burden of demonstrating Mr.
Sweeney cannot establish an essential element of his case—medical causation.

       Mr. Sweeney 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 Jones Brothers’ 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.
Sweeney 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 Jones Brothers: chiefly that Dr.
Hazlewood found no causal relationship between his injury and his workplace accident,
and Mr. Sweeney failed to disclose an expert witness to refute Dr. Hazlewood’s opinion.

       The central focus of Jones Brothers’ motion is that Mr. Sweeney cannot prove his
injury arose primarily out of and in the course and scope of his employment 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

                                             2
injury and a workplace accident through expert medical proof.”). As the nonmoving
party, Mr. Sweeney 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.) Because Mr. Sweeney failed to respond with any
expert proof to support a causal connection between his injury and his work for Jones
Brothers, he failed to carry this burden.

IT IS, THEREFORE, ORDERED AS FOLLOWS:

   1. The Court grants Jones Brothers’ motion for summary judgment and dismisses
      Mr. Sweeney’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 Jones Brothers under Tennessee
      Compilation Rules and Regulations 0800-02-21-.07, for which execution may
      issue as necessary.

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

   5. Jones Brothers 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 OCTOBER 2, 2018.



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




                                            3
                            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 October 2, 2018.


Name                   Certified Via     Via        Email Address
                       Mail      Fax     Email
Stephen Sweeney           X                         P.O. Box 111062
                                                    Nashville, TN 37222
Blakely D. Matthews                          X      bdmatthews@cclawtn.com




                                         ____________________________________
                                         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.
     Filed Date Stamp Here                 COMPENSATION HEARING NOTICE OF APPEAL                       Docket#: ___________________
                                                   Tennessee Division of Workers' Compensation
                                                       www.tn .gov/labor-wfd/wcomp.shtml               State File #/YR: - - - - - - - - - - - - -
                                                              wc.courtclerk@tn .gov
                                                                 1-800-332-2667                        RFA#: ____________________

                                                                                                       Date of Injury: - - ------------
                                                                                                       SSN: _____________________




                      Employee




                      Employer and Carrier



          Notice
          Notice is given that ---------------------------------------------------
                                  [List name(s) of all appealing party(ies) on separate sheet if necessary]

          appeals the order(s) of the Court of Workers' Compensation Claims at _____

            ---------------------- - -- - - - t o the Workers' Compensation Appeals Board .
            [List the date(s) the order(s) was filed in the court clerk's office]

          Judge_______________________________________________


          Statement of the Issues
          Provide a short and plain statement of the issues on appeal or basis for relief on appeal :




          List of Parties

          Appellant (Requesting Party): _______________ .At Hearing: 0Employer0Employee
          Address: ________ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___

          Party's Phone: ________________________________ Email :_____________________

          Attorney's Name: ________________________________________ BPR#: ________ _

          Attorney's Address:, _______________________________________                                   Phone :
          Attorney's City, State & Zip code: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ __ _ _ _ __
          Attorney's Email: _______________________________________________________

                                         • Attach an additional sheet for each additional Appellant*
LB-1103   rev. 4/15                                         Page 1 of 2                                                               RDA 11082
Employee Name: -- - - - - - - - - - -            SF#: _ _ _ _ _ _ _ _ _ _ DOl: _          _ _ _ __




Appellee(s)
Appellee (Opposing Party): ,_ _ _ _ _ _ __ At Hearing:OEmployer[]Employee



Appellee's Address:----- - - - - - - - - - - - - - - - -- - - -- - - - - -
Appellee's Phone:_ _ _ _ _ __ _ __ _ _ _ _ _ Email:_ _ _ _ __ _ __ _ _ _ _ __
Attorney's Name: _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ BPR#: _ _ _ _ _ _ __
Attorney's Address: _ __ _ _ _ _ _ _ _ _ _ _ _ _ __ __ _ Phone:

Attorney's City, State & Zip code: - - - -- - - -- - - - -- - - -- - - - - - - -
Attorney's Email:_ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ __

                       * Attach an additional sheet for each additional Appellee *


CERTIFICATE OF SERVICE

I,                                             certify that I have forwarded a true and exact copy of this
Compensation Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) ofthe Tennessee Rules of
Board of Workers' Compensation Appeals on this the              day o f _ , 20_.



[Signature of appellant or attorney for appellant]


Attention: This form should only be used when filing an appeal to the Workers' Compensation Appeals
Board. If you wish to appeal a case to the Tennessee Supreme Court, please utilize the form provided by
the Court which can be found on their website at the following address:
 http://www.tncourts.gov/sites/defau lt/files/docs/notice of appeal - civil or criminal.pdf


LB-1103   rev. 4/15                             Page 2 of 2                                      RDA 11082
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
