FILED
February 7, 2017
TN COURT OF

WORKERS’

COMPENSATION
CLAIMS

 

Time 10:00 AM

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

AT MEMPHIS
STEPHEN PARDY, ) Docket No. 2015-08-0656
Employee, )
V. )
MEMPHIS CYCLES, INC. d/b/a )_ State File No. 83040-2015
HONDA-YAMAHA OF MEMPHIS, )
Employer, )
And ) Judge Allen Phillips
SENTRY INSURANCE CoO., )
Insurance Carrier. )

 

COMPENSATION ORDER GRANTING EMPLOYER’S MOTION FOR
SUMMARY JUDGMENT

 

This matter came before the undersigned Workers’ Compensation Judge on
January 30, 2017, upon Memphis Cycles’ Motion for Summary Judgment filed pursuant
to Tennessee Rule of Civil Procedure 56. Memphis Cycles filed a Statement of
Undisputed Facts and Memorandum of Law in support of its motion. Mr. Pardy filed a
response to the motion that was not compliant with Rule 56.

The central legal issues are whether Memphis Cycles demonstrated to the Court
either that it negated an essential element of Mr. Pardy’s claim or that it demonstrated his
evidence is insufficient to establish an essential element of his claim. For the following
reasons, the Court finds Memphis Cycles has shown Mr. Pardy’s evidence is insufficient
to establish an essential element of his claim and, accordingly, holds it is entitled to
summary judgment.

Procedural History

Mr. Pardy filed a Petition for Benefit Determination for an alleged back injury.
After mediation failed to resolve the issues between the parties, the case proceeded to an
Expedited Hearing on September 28, 2016. Following the hearing, the Court, speaking
through Judge Umsted, entered an “Expedited Hearing Order Denying Requested
Benefits.” on October 4, 2016.

On October 26, 2016, Memphis Cycles filed a Motion to Dismiss pursuant to
Tennessee Compilation Rules & Regulations 0800-02-21-14(3). Mr. Pardy did not file a
response. On December 12, 2016, tThe Court determined that Memphis Cycles should
amend its Motion to Dismiss to comply with the standards set forth in Syph v. Choice
Food Grp., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 18 (Apr. 21, 2016).

Thus, on December 29, 2016, Memphis Cycles filed this Motion for Summary
Judgment with the required supporting Statement of Undisputed Material Facts in accord
with Tennessee Rule of Civil Procedure 56. The Court set the motion for a hearing on
January 30, 2017. Mr. Pardy did not file a response compliant with Rule 56. However, on
the morning of the hearing, he filed a response containing an argument in opposition to
Memphis Cycles’ motion.

Memphis Cycles’ position

Memphis Cycles argued that this Court, through Judge Umsted, ruled Mr. Pardy
“failed to carry his burden of proof on causation due to the speculative nature of [his]
testimony and his failure to submit medical proof.” (T.R. 1 at 1.) Specifically, it argued
Mr. Pardy’s “own sworn statements support a finding that no work-related injury
occurred as defined by the Statute.” Jd. at 2. Further, Mr. Pardy did not “submit any
medical proof establishing the alleged work-related incident contributed more than fifty
(50%) percent in causing his alleged medical conditions.” Jd.

Memphis Cycles cited Cullum v. K-Mac Holding Corp. d/b/a Taco Bell, 2014 TN
Wrk. Comp. App. Bd. LEXIS 7 (Dec. 23, 2014), for the proposition that an employee’s
uncertain and non-specific testimony as to how he was injured will not support a finding
of a compensable injury.

Memphis Cycles also argued, pursuant to Payne v. D & D Elec., et al., 2016 TN
Wrk. Comp. App. Bd. LEXIS 21 (May 4, 2016), that Mr. Pardy failed to produce “the
requisite medical evidence establishing a causal corinection between his current
complaints and a work-related injury.” (T.R. 1 at 10.) Because medical causation is an
essential element of his claim, Mr. Pardy’s failure to produce an opinion establishing it
“requires entry of summary judgment in [Memphis Cycles’] favor.” Jd.

Finally, Memphis Cycles contended it is entitled to summary judgment because
Mr. Pardy failed to file a proper response to both its Motion to Dismiss and its Motion for
Summary Judgment. It argued in the alternative that if the Court does not grant summary
judgment, it should dismiss Mr. Pardy’s claim on the earlier Motion to Dismiss because

2
of his failure to file a response to that motion.
Mr. Pardy’s position

Mr. Pardy argued that the Court must review the facts in a light most favorable to
him. He added that he had “not been able to get a doctor to nail down causation.”

In his only written response, titled “Memorandum of Law in Opposition to
Motion for Summary Judgment” and filed the morning of the hearing, Mr. Pardy argued
that the Court “is in possession of a transcript of the plaintiff's sworn testimony at the
hearing [referring to an Expedited Hearing] which was conducted in Memphis before the
Commission.” (T.R. 3 at 2.) He argued he testified at the Expedited Hearing that, “he was
injured while lifting his motorcycle at work.” Jd. He contended his “own testimony is
sufficient to overcome the employee’s [sic] motion for summary judgment in that there is
a contested statement of fact.” Jd.

Analysis

Because a summary judgment motion is potentially dispositive, the Court must
first consider Rule 4.01B. of the Practices and Procedures of this Court. That rule
provides:

If a dispositive motion is opposed, a response to the motion must be filed
and served on all parties or their counsel, on or before thirty calendar days
after the filing of the dispositive motion. The response shall be in writing
and shall state with particularity the grounds for the opposition. If no
opposition is filed, the dispositive motion will be considered unopposed.

Mr. Pardy filed a timely response, although filed on the actual day of the hearing.
However, it did not state with particularity the grounds for his opposition but merely
posited an argument. Hence, his response does not meet the requirements of Rule 4.01.B.
So finding, the Court turns to whether Mr. Pardy’s response is sufficient under Rule 56.

Motions for Summary Judgment are controlled by Rule 56 of the Tennessee Rules
of Civil Procedure. Payne, at *7-8. Specifically, Rule 56.03 provides that a motion for
summary judgment “shall be accompanied by a separate concise statement of the material
facts as to which the moving party contends there is no genuine issue for trial.” The
statement must set out the facts in separate, numbered paragraphs and provide specific
citations to the record of the case. Then, the party opposing the motion “must, not later
than five days before the hearing, serve and file a response to each fact set forth by the
moving party,” either agreeing that the fact is undisputed or “demonstrating that the fact
is disputed.” Id.
Further, Rule 56.06 provides that if a motion for summary judgment is properly
made and supported, ‘“‘an adverse party may not rest on mere allegations or denials of the
adverse party’s pleadings, but his or her response, by affidavits or as otherwise provided
in [the] rule, must set forth specific facts showing that there is a genuine issue for trial.”
Id. Moreover, “[i]f the adverse party does not so respond, summary judgment, if
appropriate, shall be entered against the adverse party.” Jd. (Emphasis added).

In this case, Memphis Cycles submitted a Statement of Undisputed Material Facts
in the required form. Mr. Pardy did not file a response within five days of the scheduled
hearing in accordance with Rule 56. When he did file a response, he neither responded to
“each fact” set forth by Memphis Cycles nor demonstrated any disputed fact. Instead, he
relied upon what his attorney described as Mr. Pardy’s own “sworn testimony,”
apparently referring to his testimony at the Expedited Hearing, in support of his argument
“that there is a contested statement of fact.” (T.R. 3 at 2.) Thus, procedurally, the Court
finds Mr. Pardy failed to properly respond to the motion under Rule 56. It now turns to
whether entry of summary judgment against him is appropriate. For the following
reasons, the Court finds summary judgement is appropriate.

In so finding, the Court applies the following standard:

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.

Payne, at *8, quoting Tenn. Code Ann. § 20-16-101 (2016).

To demonstrate the insufficiency of Mr. Pardy’s evidence to support his claim,
Memphis Cycles set forth the following undisputed facts:

e Mr. Pardy admitted at the Expedited Hearing that he did not experience
pain or problems at the time of his alleged injury sustained when loading a
motorcycle; (citing the Expedited Hearing Order);

e Mr. Pardy did not feel pain or problems until late in the day on the alleged
date of injury; (citing the Expedited Hearing Order);

e After moving the motorcycle, Mr. Pardy felt fine and nothing caused him to
believe he injured his back at the time; (citing the Expedited Hearing
Order);
e Mr. Pardy admitted his back pain may have been caused by work he
performed on his own personal truck; (citing the Expedited Hearing Order);
e Mr. Pardy failed to produce any medical evidence establishing a causal
connection between his employment and his alleged injury; and,
e The Court, in its Expedited Hearing Order, found, in pertinent part:
Mr. Pardy’s lay testimony as to causation was speculative as he
did not dispute that he initially did not know what caused his
back injury and admitted saying that he may have hurt his back
while working on his truck. Based on Mr. Pardy’s speculative
testimony, and no corroborative expert medical testimony, the
Court holds he is unlikely to prevail at a hearing on the merits on
the issue of causation.

To successfully counter these undisputed facts, Mr. Pardy must “demonstrate the
existence of specific facts in the record which could lead a rational trier of fact to find in
[his] favor[.]” Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 265
(Tenn. 2015). In so doing, he must do more than simply offer hypothetical evidence; he
must produce evidence at this summary judgment stage of the case that is sufficient to
establish the essential elements of his workers’ compensation claim. Jd. at 265. This
Court must review any evidence submitted in the light most favorable to Mr. Pardy and
draw all reasonable inferences in his favor. Payne, at *12, citing Martin v. Norfolk S. Ry
Co., 271 S.W.3d 76, 84 (Tenn. 2008).

Applying these directives, the Court finds Mr. Pardy produced no specific facts to
lead the Court to find in his favor. Instead, he only offered an argument that “he was
injured while lifting his motorcycle at work.” (T.R. 3 at 2.) He did not cite the record
regarding where such statement appeared. However, even if he had, this is in direct
contravention to his testimony that this Court found speculative at the Expedited Hearing.
Two sworn inconsistent statements by a party are of no probative value in establishing a
disputed issue of material fact. Price v. Becker, 812 S.W.2d 597, 598 (Tenn. Ct. App.
1991). Stated another way, litigants cannot create material factual disputes by merely
contradicting themselves at the summary judgment stage. Church v. Perales, 39 S.W.3d
149, 162 n.9 (Tenn. Ct. App. 2000). By restating facts that the Court has already found to
be speculative, Mr. Pardy has not created a genuine issue of material fact.

Thus, under controlling authority, the Court finds Memphis Cycles has
demonstrated the insufficiency of Mr. Pardy’s evidence on an essential element of his
claim, namely causation. To establish causation under Tennessee law, Mr. Pardy must
show that his injury arose “primarily out of and in the course and scope of employment.”
Tenn. Code Ann. § 50-6-102 (14) (2016). This first requires proof that the injury was
“caused by a specific incident, or set of incidents, arising primarily out of and in the
course and scope of employment, and is identifiable by time and place of occurrence.”
Tenn. Code Ann. § 50-6-102(14)(A) (2016). An injury arises primarily out of the

5
employment only if it has been shown by a preponderance of the evidence that the
employment contributed more than 50% in causing the injury, considering all causes.”
Tenn. Code Ann. § 50-6-102(14)(B) (2016). Mr. Pardy has not demonstrated sufficient
facts to create a genuine issue of material fact regarding the occurrence of a specific
incident identifiable by time and place of occurrence.

Accordingly, the Court grants Memphis Cycles’ Motion for Summary Judgment
and dismisses Mr. Pardy’s claim with prejudice. The Court taxes the filing fee of $150.00
to Memphis Cycles pursuant to Tennessee Compilation Rules and Regulations Rule
0800-02-21-.07, to be paid within five days of the entry of this Order. In addition,
Memphis Cycles shall prepare and submit an SD-1 form within ten days of the date of
this order.

IT IS SO ORDERED.

ENTERED this the 7" day of February, 2017.

   

 

Judge Allen Phillips
Court of Workers’ Compensation Claims

Technical Record:

—

Employer’s “Memorandum of Law in Support of Motion for Summary Judgment”
2. Employer’s “Statement of Undisputed Facts”
Employee’s “Memorandum of Law in Opposition to Motion for Summary

Judgment”

wa
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this Compensation Hearing Order
Granting Employer’s Motion for Summary Judgment was sent to the following recipients
by the following methods of service on this the 7" day of February, 2017.

 

 

 

 

 

 

Name Certified | First Via Service sent to:
Mail Class | Email
Mail
John E. Dunlap, Esq., 4 Jdunlap0O@gmail.com
Attorney for Employee
Lee Ann Murray, Esq., xX leeamurray(@feeneymurray.com
Attorney for Employer

 

 

 

 

 

 

fon Mave

 

Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
