                                                                                FILED
                                                                               Oct 24, 2018
                                                                              08:55 AM(CT)
                                                                           TENNESSEE COURT OF
                                                                          WORKERS' COMPENSATION
                                                                                 CLAIMS




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

WILLIAM GIBSON,                             )   Docket Numbers: 2017-02-0449
         Employee,                          )
v.                                          )
DAWN OF HOPE DEVELOPMENT                    )   State File Number: 7430-2018
CENTER, INC.,                              )
          Employer,                        )
and                                        )
ST ARNET INSURANCE CO.,                    )    Judge Brian K. Addington
          Carrier.                         )



     COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT


       This claim came before the undersigned Workers' Compensation Judge on
October 16, 2018, upon Dawn of Hope's Motion for Summary Judgment. Mr. Gibson
did not appear for the hearing.

                                  Procedural History

       Before the alleged work injury, Mr. Gibson suffered with a hernia and sought
treatment with Dr. Kenneth Cutshall. Dr. Cutshall stated that the hernia was a recurrent
incisional hernia from a prior repair. He did not relate it to any event at work on April
17, 2017. Mr. Gibson then alleged a hernia that occurred at Dawn of Hope on April 15,
2017. Dawn of Hope did not accept his claim. Mr. Gibson sought medical treatment at
his own expense with Dr. Cutshall.

      Because Dawn of Hope refused to pay for any medical treatment, Mr. Gibson filed
a Request for Expedited Hearing. Later, Dawn of Hope filed an Amended Motion for
Summary Judgment.




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                        Findings of Fact and Conclusions of Law

        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 oflaw." Tenn. R. Civ. P. 56.04 (2018).
         Dawn of Hope 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.
Gibson's claim, or (2) demonstrate that Mr. Gibson's evidence is insufficient to establish
an essential element of his claim. Tenn. Code Ann. § 20-16-101 (20 17); see also Rye v.
Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Dawn
of Hope is successful in meeting this burden, Mr. Gibson "may not rest upon the mere
allegations or denials of its pleading." !d. at 265. Rather, he must respond by producing
evidence that sets forth specific facts showing there is a genuine issue for trial. !d.; Tenn.
R. Civ. P. 56.06. He must do more than simply show that there is some metaphysical
doubt as to the material facts. Rye, at 265.
       To determine whether summary judgment is appropriate, the Court looks to
whether there are genuine issues of material fact on the essential elements of Mr.
Gibson's claim. In doing so, the Court must review the evidence in the light most
favorable to Mr. Gibson 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).
        Dawn of Hope's summary judgment motion requires Mr. Gibson to submit
evidence establishing the essential elements of his claim. The Court finds Dawn of Hope
demonstrated that Mr. Gibson's medical proof is insufficient to establish an essential
element of his claim. No physician has concluded that Mr. Gibson's complaints relate to
his alleged work injury or primarily arose from his work. Rather, Dr. Cutshall stated Mr.
Gibson's hernia was a recurrent incisional hernia from a prior hernia repair and predated
the alleged injury date.
       To establish a compensable claim for a hernia or rupture, Mr. Gibson must prove:
1) there was an injury resulting in a hernia or rupture; 2) the hernia or rupture appeared
suddenly; 3) it was accompanied by pain; 4) the hernia or rupture immediately followed
the accident; and 5) the hernia or rupture did not exist prior to the date of the accident for
which compensation is claimed. Tenn. Code Ann. § 50-6-212. An employee must
establish that the facts of his injury satisfy all five requirements. If he fails on one, his
claim fails.

       The Court finds the medical records do not support Mr. Gibson's claim that he
sustained a ncw-work:.rclatcd hernia. He reported symptoms tclatiri!ffoah incisional-
hernia to Dr. Cutshall as early as March 29, 2017. In his treatment record, Dr. Cutshall
noted "he does not recall doing anything specific to cause the hernia." He also noted that
                                              2
Mr. Gibson's hernia was a recurrent incisional hernia from a prior hernia repair.
Therefore, the only expert medical evidence presented at this point indicated Mr.
Gibson's hernia existed before the alleged work injury.
       Mr. Gibson cannot rely on his personal belief that the work incident caused his
hernia. Instead, he must come forward, at this summary judgment stage, with expert
medical proof demonstrating his hernia arose primarily out of and in the course and scope
of his employment with Dawn of Hope. He has not done so. Therefore, the Court
concludes no genuine issue of material fact exists and summary judgment is appropriate
as a matter of law.
   IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Gibson's claim is dismissed with prejudice.

   2. Dawn of Hope shall pay the $150.00 filing fee to the Clerk of the Court under
      Tennessee Compilation Rules and Regulations 0800-02-21-.07 (2018) within five
      business days of entry of this order.

   3. Dawn of Hope shall file an SD-2 within ten business days of entry of this order.

   4. Absent an appeal of this order, it shall become final thirty calendar days after
      Issuance.

      ENTERED October 24, 2018.



                                          IS/ Brian K. Addington
                                        BRIAN K. ADDINGTON, JUDGE
                                        Court of Workers' Compensation Claims




                                           3
                             CERTIFICATE OF SERVICE

       I certify that a true and correct copy of Order was sent to the following recipients
by the following methods of service on October 24,2018.

          Name             Certified   Fax       Email           Service sent to:
                            Mail
William Gibson,                                   X      chefwilliamgibson@gmail.com
Employee
Kelly Campbell,                                   X      kcampbell@wimberlylawson.com
Employer's Attorney


                                             J2 ffiUk--- /
                                         ~HRUM,COURTCLERK
                                         w;. ;~:Hclerk@tn.gov
                                             1




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                                 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.
II                                                                                                                      I.
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                                    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
