                                                                                    FILED
                                                                               October 17, 2017

                                                                                    TN COURT OF
                                                                           '\1\'0RKI.R.S' COMPENS ..ffiO N
                                                                                        CL'ill.IS



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

Tyrone McGee,                                 )   Docket No. 2016-06-2313
          Employee,                           )
v.                                            )
Embassy Suites Nashville,                     )   State File No. 13292-2016
           Employer,                          )
And                                           )
Zurich American Insurance Company,            )   Judge Kenneth M. Switzer
           Carrier.                           )


     COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT


       This matter came before the undersigned on October 16, 2017, on Embassy Suites
Nashville's Motion for Summary Judgment. The central legal issue is whether Mr.
McGee's evidence is sufficient to establish an essential element of his claim.
Specifically, he alleged suffering food poisoning as a result of eating enchiladas his
employer offered to its staff. Because he failed to provide a medical opinion linking his
condition to ingesting food at work, the Court finds that Mr. McGee's evidence is
insufficient to establish causation and therefore holds Embassy Suites is entitled to
summary judgment.

                                    Procedural History

        Mr. McGee alleged he suffered food poisoning after eating leftover enchiladas
Embassy Suites offered its employees. Embassy Suites denied the claim. Following an
Expedited Hearing, the Court denied benefits, holding that Mr. McGee failed to come
forward with sufficient medical evidence to satisfY his burden of proving his condition
arose primarily out of and in the course and scope of his employment. Specifically, the
Court found that, while Mr. McGee believed he suffered from food poisoning, the
medical providers diagnosed other conditions including noninfective gastroenteritis and
colitis, as well as possible peptic ulcer disease with severe gastritis. Further, none of the
providers related Mr. McGee's condition to the enchiladas. Thus, the Court held Mr.
McGee could not establish his condition arose primarily out of his employment. Mr.

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McGee did not appeal the Expedited Hearing Order.

        At a later scheduling hearing, the Court set the Compensation Hearing date for
November 14. It also ordered Mr. McGee to file additional medical proof on or before
October 6 and that Embassy Suites file any potentially dispositive motions on or before
September 14. Mr. McGee did not file additional medical proof. Embassy Suites filed
this motion within the deadline, along with a Statement of Undisputed Facts and
Memorandum of Law. Mr. McGee did not file a response to the motion nor did he
participate in the hearing.

                             Legal Principles and Analysis

       Tennessee Code Annotated section 20-16-101 (2016) and the Tennessee Rules of
Civil Procedure provide the legal standards governing summary judgment. Specifically,
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."
Moreover, "[i]fthe adverse party does not so respond, summary judgment, if appropriate,
shall be entered against the adverse party." Payne v. D and D Elec., 2016 TN Wrk.
Comp. App. Bd. LEXIS 21, at *7-8 (May 4, 2016) (emphasis added).

       Because a summary judgment motion is potentially dispositive, the Court must
also consider Rule 4.0 1B of the Practices and Procedures of this Court, which provides
that if a dispositive motion is opposed, a response must be filed on or before thirty
calendar days after the filing of the dispositive motion; if no opposition is filed, the
dispositive motion will be considered unopposed. Here, Mr. McGee did not file a
response. Thus, the Court must consider it unopposed and must now decide whether
summary judgment is "appropriate." See Tenn. R. Civ. Pro. 56.06 (2016).

      To make this determination, the Court must apply the following standard:

      When a party who does not bear the burden of proof at trial files a motion
      for summary judgment, the party must do one of two things: (1) submit
      affirmative evidence that negates an essential element of the nonmoving
      party's claim or (2) demonstrate to the court that the nonmoving party's
      evidence is insufficient to establish an essential element of the nonmoving
      party's claim. If the moving party is successful in meeting this initial
      burden of production, the nonmoving party must then establish that the
      record contains specific facts upon which a trier of fact could base a
      decision in that party's favor. 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

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       any material fact and that the moving party is entitled to a judgment as a
       matter of law.

Mitchell v. Randstad N Am., 2017 TN Wrk. Comp. App. Bd. LEXIS 2, at *7 (Jan. 13,
2017)(internal citations omitted). Moreover, the Court must consider the facts presented
on summary judgment in the light most favorable to Mr. McGee. See Payne, at* 12.

       To establish causation, Mr. McGee must show to a reasonable degree of medical
certainty that his injury arose primarily out of and in the course and scope of his
employment. This requires a showing by a preponderance of the evidence that his
employment contributed more than fifty percent in causing the injury, considering all
causes. Shown to a reasonable degree of medical certainty means that, in the opinion of
the physician, it is more likely than not considering all causes, as opposed to speculation
or possibility. Tenn. Code Ann. §50-6-102(14); see also Payne v. D & D Elec., 2017
Tenn. LEXIS 215, at *9 (Apr. 18, 2017).

       Here, Embassy Suites argued that no physician has expressed an opinion that Mr.
McGee's work caused fifty percent or more of his medical condition or need for
treatment. Therefore, Embassy Suites contended Mr. McGee cannot establish that his
injury arose primarily out of and in the course and scope of employment and summary
judgment is appropriate as a matter of law.

        The Court agrees. Mr. McGee failed to produce expert proof or testimony
demonstrating that his injury arose primarily out of and in the course and scope of his
employment at Embassy Suites. The records contain no medical evidence demonstrating
that it was more likely than not that his employment contributed more than fifty percent
to his injury, considering all causes. The Court concludes Embassy Suites has
demonstrated that Mr. McGee's evidence is insufficient to establish an essential element
of his claim. Embassy Suites' Motion for Summary Judgment is granted, and Mr.
McGee's claim is dismissed with prejudice. The costs of this case are taxed to Embassy
Suites under Tennessee Compilation Rules and Regulations Rule 0800-02-21-.07 to be
paid within five days of the entry of this order. In addition, Embassy Suites shall prepare
and submit the SD-1 within ten days of the date of judgment.

       IT IS SO ORDERED.

                                   Entered the 17th day of October, 2017.




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                           CERTIFICATE OF SERVICE

        I certify that a true and correct copy of this Order was sent to the following
 recipients by the following methods of service on the 1ih day of October, 2017 .
                                                                         .
Name                 Certified   Fax   Regular    Email    Sent to
                     Mail              mail
Tyrone McGee,           X                            X     T:yronemcgee6@gmail.com;
self-represented                                           t:yronemcgee 1O@gmail.com; 606
Employee                                                   N. Dupont Ave #404, Madison, TN
                                                           37115
David                                                X     David.weatherman@zurichna.com
Weatherman,
Employer's
attorney




 Pen y Shru
 Clerk, Court Workers' Compensation Claims
 WC.CourtClerk@tn.gov




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