     FILED
    Oct 17, 2018
   02:35 PM(CT)
 TENNESSEE COURT OF
WORKERS' COMPENSATION
       CLAIMS
       Thereafter, Ideal served discovery on Mr. Donald on May 14, including requests
for admissions. On July 2, after the discovery went unanswered, Ideal filed a motion to
compel. Because Mr. Donald did not respond to the motion, the Court considered it
unopposed under Practices and Procedures Rule 4.02, and pursuant to Tennessee
Compilation Rules & Regulations 0800-02-21-.16(2) decided it on the written materials.
The Court ordered Mr. Donald to answer interrogatories and requests for production by
July 30.

       On July 25, Ideal filed a "Motion to Deem Employer's Requests for Admissions to
Employee as Admitted," asserting that Mr. Donald had not responded to the requests
served on May 14. Mr. Donald did not respond to that motion. On August 8, the Court
granted it, holding that Tennessee Rules of Civil Procedure 36 does not specifically
provide for an order deeming requests admitted, but the rule deems requests admitted if
they remain unanswered more than thirty days from service.

      On August 24, Ideal filed this Motion for Summary Judgment. On October 2, Mr.
Donald filed a response and contemporaneously filed a motion to permit withdrawal or
amendment of the admissions, along with a motion to continue the Expedited Hearing set
for October 15. On October 9, he filed answers to the interrogatories and requests for
production ordered by the Court to be answered by July 30.

                              Summary Judgment Hearing

       At the hearing, the Court continued an expedited hearing set on October 15
pending resolution of the summary judgment. The Court also determined that Mr.
Donald's motion to withdraw admissions bore directly on the summary judgment motion.
For judicial economy, and by the parties' consent, the Court heard argument on both that
motion and the motion for summary judgment.

                                    Ideal's Position

       In opposing Mr. Donald's motion to withdraw, Ideal argued Mr. Donald's mere
failure to answer the requests did not justify allowing their withdrawal. It said the
purpose of serving the requests was to "narrow down" the facts at issue. Further, Ideal's
counsel pointed to correspondence to Mr. Donald's counsel two weeks before filing the
motion. That correspondence, which produced no response, inquired if the answers were
forthcoming.

       As to the summary judgment, Ideal asserted the following undisputed material
facts with citations to the record:

    1. Employee sustained injuries on October 10, 2017, when he was sprayed in
       his face and eyes while disconnecting a chemical hose.

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    2. The Dispute Certification Notice issued by the Department of Labor on
       April 5, 2018, identified disputed issues as "Compensability," "Medical
       Benefits," and "Temporary Disability Benefits."
    3. On August 8, 2018, the Cowt ordered that the matters addressed in
       Employer's Requests for Admissions are to be deemed admitted by
       operation of Tennessee Rule of Civil Procedure 36, and that Employer
       may introduce said Requests for Admissions at any hearing of the matter
       in accord with the Court's Order.
    4. Employer consistently enforced safety rules pertaining to the use of
       Personal Protective Equipment ("PPE"), and Employee was aware that
       violation of these safety rules could result in disciplinary action.

       Ideal argued these facts conclusively established Mr. Donald violated a safety rule
in contravention of Tennessee Code Annotated section 50-6-llO(a), which prevented his
recovery of benefits. It pointed specifically to the following material facts as established
by the admissions:

    •   Ideal required all drivers to attend hazardous materials regulation training
        and regular safety meetings where rules and procedures regarding PPE
        were discussed;
    •   Mr. Donald attended and completed training classes regarding hazardous
        materials including self-protection measures, accident prevention
        procedures, and safety;
    •   Ideal regularly conducted safety training including the use of PPE prior to
        the date of injury;
    •   Mr. Donald told an investigator he was wearing safety glasses and a face
        shield at the time of injury, but Ideal later obtained a video showing he was
        not wearing glasses and had the shield in the "flipped-up" position rather
        than over his face;
    •   Mr. Donald intentionally violated Ideal's safety protocol by failing to
        utilize the PPE at the time of the accident and provided false and
        misleading information to the investigator;
    •   Mr. Donald understood the risk of exposure to sodium hydroxide and
        understood the risk of not wearing his PPE; and
    •   If Mr. Donald had properly worn his PPE, he would not have been sprayed
        in the face with sodium hydroxide, and he had no valid excuse for not
        wearing the PPE.

       Ideal also submitted the affidavit of another driver, employed by Ideal since 1975.
He confirmed the company requires attendance at annual hazardous materials training
and at periodic driver safety meetings that include a discussion of the proper use of PPE.
An affidavit from Michael Blwton, Ideal's plant manager, confinned that Ideal required

                                             3
    d1ivers to use safety glasses and a properly positioned face shield. He noted he had no
    occasion to enforce the mle regarding use of PPE because no violations had occurred.

                                        Mr. Donald's Position

           Mr. Donald admitted, through counsel, that Ideal served the Requests for
    Admissions on May 14 and he did not answer them until July 26. However, Tennessee
    Rules of Civil Procedme 36.02 allows the Court to withdraw matters admitted in requests
    for admissions. Mr. Donald argued that unless this Comt does so, "the merits of
    Employee's position will not be heard by the Comt." If the Comt does not consider Mr.
    Donald's "actual responses," then "presentation of the merits of this action will be
    subserved." Counsel also argued that she did not receive notice of a hearing on the
    motion to deem the requests admitted but, if she had, she might have appeared and
    "addressed the issues contained therein." Finally, counsel said she did not receive the
    Comt' s August 8 order deeming the requests admitted but admitted she did not access TN
    Comp, the Comt's electronic filing system, until September 27.

           Mr. Donald admitted Ideal's undisputed facts except for the fourth, namely that
.   Ideal consistently enforced safety rules regarding the use of PPE. He based this dispute
    on his unswom answers to Interrogatories filed just ninety minutes before the hearing. He
    also set forth arguments in a memorandum of law filed on October 2 with citations to the
    yet to be filed interrogatories and his July 26 answers to requests for admissions. In an
    affidavit, he said he wore his face shield in the "flipped-up" position on the date of the
    accident but also "believed" he would have suffered the injury even if the shield was
    lowered.
                                              Analysis

           Summary judgment is appropriate "if 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 (2018)(Emphasis added). A party
    may move for summary judgment "at any time after the expiration of thirty (30) days
    from the commencement of the action." Tenn. R. Civ. Pro. 56.01; Noel v. EAN Holdings,
    LLC, 2017 Tenn. Wrk. Comp. App. Bd. LEXIS 58, at *7 (Sep. 13, 2017).

            Ideal must do one of two things to prevail on its motion for summary judgment:
    (1) submit affirmative evidence that negates an essential element of Mr. Donald's claim,
    or (2) demonstrate that Mr. Donald's evidence is insufficient to establish an essential
    element. 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 Ideal is successful in meeting
    this bmden, Mr. Donald "may not rest upon the mere allegations or denials of [his]
    pleading." Id. at 265. Rather, he must respond by producing evidence that sets forth
    specific facts showing there is a genuine issue for trial. Id.; Tenn. R. Civ. P. 56.06. He

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must do more than simply show that there is some metaphysical doubt as to the material
facts. Rye, at 265. He must also produce this evidence at least five days before the
hearing. Tenn. R. Civ. P 56.04. The Court must review the evidence in the light most
favorable to Mr. Donald as the nonmoving party and draw all reasonable inferences
favoring him. Payne v. D and D Elec., 2016 TN Wrk. Comp. App. Bd. LEXIS 21, at *12
(May 4, 2016).

        Here, Ideal contends there is no genuine issue of material fact as to Mr. Donald's
intentional violation of a safety rule and that Tennessee Code Annotated section 50-6-
1 lO(a) prohibits the recovery of benefits. The Court agrees.

                                              I.

       First, Tennessee Rules of Civil Procedure 36.01 provides that a party may serve a
written request to another party to admit the truth of any fact, the application of law to the
facts, or opinions about either. Every request is admitted unless the party to whom the
request is directed serves a written answer or objection within thirty days after service of
the request. "The answer shall specifically deny the matter or set forth in detail the
reasons why the answering patty cannot truthfully admit or deny the matter." Id.

       Tennessee law considers Rule 36 a "useful tool in the preparation of a lawsuit."
Tennessee Dept. of Human Serv. v. Barbee, 714 S.W.2d 263, 266 (Tenn. 1986). It
provides a procedure "to reduce trial time by limiting and narrowing the issues." Id. A
matter admitted under Rule 36 "is conclusively established unless the court on motion
permits withdrawal or amendment of the admission." Tenn. R. Civ. P. 36.02.
Procedurally, admissions under Rule 36 may be brought to the trial court's attention
through a motion for summary judgment or by specific motion dealing with the requested
admissions. Barbee, at 266.

       In this case, Ideal filed a motion to deem the unanswered requests admitted
because Mr. Donald did not answer them within thirty days. He did not answer them until
July 26, after the motion to deem them admitted, and after a motion to compel answers to
other discovery. Ideal corresponded with Mr. Donald regarding the unanswered requests
before filing its motion. Thus, the Court holds Ideal conclusively established the facts
contained in the requests for admissions for purposes of this action.

                                             II.

        Second, the Court declines to permit withdrawal or amendment of the admissions.
Tennessee Rules of Civil Procedure 36.02 provides the Court discretion to allow
withdrawal and that discretion provides a modicum of flexibility to avoid potential
injustice resulting from a strict and unyielding application of the thirty day response
deadline. Meyer Laminates (SE) , Inc. v. Primavera Dist., 293 S.W.3d 162 (Tenn. Ct.

                                              5
App. 2008). To obtain relief, a party must satisfy the following two prongs: 1) "when the
presentation of the merits of the action will be subserved [by allowing the admissions to
stand]" and 2) "the party who obtained the admission fails to satisfy the court that
withdrawal or amendment will prejudice that party in maintaining the action or defense
on the merits." Tenn. R. Civ. P. 36.02. The Rule applies to "any matter admitted" under
Rule 36, without distinction as to how or for what reason the matter was deemed
admitted..Meyer, at 167.

        To determine whether it should allow withdrawal of Mr. Donald's admissions, the
 Court finds guidance in Hutcheson v. Irving Materials, Inc., No. M2002-03064-COA-R3-
CV, 2004 Tenn. App. LEXIS 158 (Tenn. Ct. App. Mar. 8, 2004). There, the plaintiff did
not respond to requests for admissions and the defendant filed a motion to deem them
admitted. Plaintiff did not file a response to the motion but submitted responses to the
requests on the day of the hearing. The court granted the motion. Several months later,
and after the filing of a summary judgment motion, the plaintiff filed a motion for relief
under Rule 36.02. The court held that the delay in requesting relief until after a summary
judgment filing "failed to establish that the merits of the case would be subserved or
promoted by the withdrawal or modification of the requests for admissions." Id at *10.

       The same is true here. Mr. Donald did not timely answer the requests and did not
reply to the motion to deem them admitted. He filed his motion to withdraw almost two
months after the Court deemed them admitted and only after Ideal filed its motion for
summary judgment. 1 As in Hutcheson, the Court finds that the merits of the case are not
subserved by refusing to allow Mr. Donald to withdraw or amend his admissions.
Likewise, Ideal convincingly argued that it used the request for admissions to narrow the
issues as Rule 36 was intended. Barbee, at 266. The Court holds allowing withdrawal of
the admissions here would thwart the purpose of Rule 36 and impose upon Ideal a burden
of establishing facts that it sought to establish by use of requests for admissions. Rule 36
would cease to be a "useful tool" if a court allowed withdrawal of requests for admissions
under the circumstances presented here. Thus, the Court exercises its discretion and
denies Mr. Donald's request to withdraw the admissions.

                                                      III.

      Finally, the Court holds Ideal is entitled to summary judgment as a matter of law
because there is no genuine issue of material fact. Ideal negated an essential element of
Mr. Donald's claim, causation, by establishing intentional violation of a safety rule, and


l The Court reviewed computer screenshots submitted by Mr. Donald's counsel purporting to show she did not
receive notice of the Court's August 8 order deeming the requests admitted. To the contrary, the Court notes the
screenshots include an e-mail to counsel of August 8 that references a "Court Order" of that date and advising it
might be viewed in TN Comp. Counsel admitted she did not take steps to access TN Comp until September 27.
Regardless, counsel conceded she received the motion to deem the requests admitted and any failure to receive
and/or review the order deeming them admitted does not affect the outcome here.

                                                       6
demonstrated Mr. Donald's evidence is insufficient to establish causation in light of the
defense.

       First, Ideal negated causation by establishing the elements of a safety rule defense
as set forth in Mitchell v. Fayetteville Pub. Util., 368 S.W.3d 442 (Tenn. 2012).
Specifically, it established:

       1) Mr. Donald's actual notice of a safety rule; (Admission Nos. 1, 2, 3,5)
       2) Mr. Donald's understanding of the danger involved in violating the rule;
          (Admission Nos. 15, 16)
       3) Its bona fide enforcement of the rule; (Affidavit of Michael Blurton) and
       4) Mr. Donald's lack of a valid excuse for violating the rule. (Admission No. 18)

        Second, Ideal demonstrated Mr. Donald's evidence was insufficient to create a
genuine issue of material fact regarding causation. In Barbee, the Court explained that a
coutt should not allow evidence to refute facts conclusively established by an admission.
714 S.W.2d at 267. However, even ifthe Court considered Mr. Donald's evidence, he did
not refute the facts established by the admissions. He filed interrogatory answers on the
morning of the hearing, not five days before as required by Rule 56.04 and, even then,
they were unswom. Further, in his affidavit, Mr. Donald offered only two statements,
neither of which is sufficient to create a fact issue. Namely, he conceded he was wearing
his face shield in the "flipped-up" position instead of covering his face and two, he said
he believed he would have suffered injury even if the shield was lowered. These facts
were conclusively established to the contrary by Admission No. 20 where he admitted
that "if proper safety protocol had been followed ... [he] would not have been sprayed in
the face by sodium hydroxide" and in Admission No. 21 where he admitted "if [he] had
properly utilized the safety devices . . . [he] would not have sustained bums to [his] face
and eyes."

       Based on the above findings, the Court holds there is no genuine issue of material
fact and Ideal is entitled to a judgment as a matter of law.

IT IS, THEREFORE, ORDERED as follows:

   I. Ideal's Motion for Summary judgment is granted, and Mr. Donald's claim against
      Ideal for the requested workers' compensation benefits is dismissed on the merits
      with prejudice to its refiling.
   2. Ideal shall prepare and file a statistical data form (SD2) with the Court Clerk at
      wc.courtclerk@tn.gov within ten business days of entry of this order.
   3. The filing fee of $150.00 for this case is taxed to Ideal under Tennessee
      Compilation Rules and Regulations 0800-02-21-.07.
   4. Absent an appeal, the order shall become final thirty days after issuance.


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ENTERED this the 17th day of October, 2018. r,



                                             Judge Allen h 1ps
                                             Court of Workers' Com pen a ti on 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 17th day of October, 2018.

Name                         Via Email                  Service sent to:
Emily B. Bragg, Esq.,                    x              ebragg@forthepeople.com
Employee's Attorney
Steven B. Morton, Esq.,                  x             Stephen.morton@mgclaw.com
Employer's Attorney



                                             Penn hrum, Clerk of Court
                                             Court ofWorkers' Compensation Claims
                                             WC.CourtClerk@tn.gov




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