            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD


Kathleen Delores LaGuardia                   ) Docket No. 2016-02-0380
                                             )
v.                                           ) State File No. 51640-2016
                                             )
Total Holdings USA, Inc., d/b/a              )
Hutchinson Sealing Systems, et al.           )
                                             )
Appeal from the Court of Workers’            )
Compensation Claims                          )
Brian K. Addington, Judge                    )


                 Reversed and Remanded – Filed November 29, 2017

The employee alleged she suffered an injury when she slipped and fell at work. At a
prior expedited hearing, the trial court determined the employee did not come forward
with sufficient evidence to support a preliminary finding that her accident arose primarily
out of her employment and denied benefits. That order was not appealed. Thereafter, the
employer filed a motion for summary judgment, arguing the employee “cannot prove that
her injury arose out of her employment.” Following a hearing on the employer’s motion,
the trial court entered an order granting summary judgment in favor of the employer. The
employee has appealed, arguing there are genuine issues of material fact that preclude
summary judgment. Upon careful consideration of the record, we reverse the order
granting summary judgment and remand the case to the trial court for further
proceedings.

Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Presiding
Judge Marshall L. Davidson, III, and Judge David F. Hensley joined.

Russell W. Adkins, Kingsport, Tennessee, for the employee-appellant, Kathleen Delores
LaGuardia

Michael L. Forrester, Kingsport, Tennessee, for the employer-appellee, Total Holdings
USA, Inc., d/b/a Hutchinson Sealing Systems




                                            1
                             Factual and Procedural Background

        Kathleen LaGuardia (“Employee”) worked as a machine operator for Total
Holdings USA, Inc., d/b/a Hutchinson Sealing Systems (“Employer”), at its automobile
parts manufacturing facility in Hawkins County, Tennessee. On July 11, 2016, Employee
was performing her job duties clipping excess metal from the end of each part, sponging
the parts, placing the parts in boxes, and stacking the boxes behind her. As she stepped
off her work mat onto the concrete floor, her right foot slid, her right leg went into the air,
and she fell, striking her right ankle on the concrete floor. As a result of this accident,
she was diagnosed with a medial malleolus fracture, a fibula fracture, and a dislocated
talus in her right leg.

        During her discovery deposition, Employee testified that after the accident, she
noticed her pants were “filthy” and covered with an “oily dust.” She further testified that
the oily dust “was all over my side that I fell on.”1 She also stated that this “oily dusty
substance” was “right around [her] workstation.” During the expedited hearing, she
reiterated this testimony, adding, “I was covered with all that black dust from extrusion.”2

        However, Employee admitted that she did not know what caused her to slip. She
testified, “[i]t’s a concrete floor. I don’t know if it’s oil or something on the floor. I have
no idea.” She acknowledged she was unaware of any water or other liquid on the floor
where she slipped. She also admitted there were no wet spots on her clothes after her
fall. During the expedited hearing, Employee explained that “[t]he floor’s slippery;
whatever debris was on the floor, I could have slipped on.” On the other hand, she
admitted, “I did not see what I slipped on.”

       In its motion for summary judgment and supporting brief, Employer
acknowledged that Employee’s injury occurred in the course of her employment, but it
argued that “Employee cannot prove her injury ‘arose out of’ her employment.”
Employer asserted that unless Employee can show that a “hazard incident to
employment” was the primary cause of her accident, it is entitled to judgment as a matter
of law.

       In response to Employer’s motion, Employee argued that “Employer evidently
expected [Employee] to crawl in [sic] the floor with a serious ankle fracture while she
was in excruciating pain in order to locate and identify the object or substance on which
she slipped.” She further noted the opinion of the treating physician, Dr. Karen McRae,
who concluded that Employee’s injury was consistent with the mechanism of accident as
1
  Excerpts from Employee’s discovery deposition were attached as an exhibit to Employer’s motion for
summary judgment.
2
  Excerpts from the transcript of the expedited hearing were attached as an exhibit to Employer’s motion
for summary judgment.

                                                   2
described by Employee and that her injury was caused by a work-related slip-and-fall.
Finally, Employee argued that the cause of a work accident can be shown by direct
evidence, circumstantial evidence, or some combination of the two, and that she had
created a genuine issue of material fact concerning whether her injury arose primarily out
of her employment, making summary judgment inappropriate.

       In its order granting summary judgment, the trial court concluded that Employee
“can only speculate as to what made her slip.” It therefore found that her evidence was
“insufficient to prove that a hazard of her employment caused her fall and her subsequent
injury.” As a result, the trial court found “no genuine issue of material fact,” granted
Employer’s motion for summary judgment, and dismissed Employee’s case with
prejudice. Employee has appealed.

                                  Standard of Review

       The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is
otherwise. See Tenn. Code Ann. § 50-6-239(c)(7) (2017) (“There shall be a presumption
that the findings and conclusions of the workers’ compensation judge are correct, unless
the preponderance of the evidence is otherwise.”). However, we review questions of law
de novo with no presumption of correctness. See Am. Mining Ins. Co. v. Campbell, No.
M2015-01478-SC-R3-WC, 2016 Tenn. LEXIS 907, at *18 (Tenn. Workers’ Comp. Panel
Dec. 9, 2016) (“A trial court’s conclusions of law are reviewed de novo upon the record
with no presumption of correctness.”). Moreover, the interpretation and application of
statutes and regulations concerns issues of law, which we review de novo with no
presumption of correctness afforded to the trial court’s findings. See Seiber v. Reeves
Logging, 284 S.W.3d 294, 298 (Tenn. 2009); Hadzic v. Averitt Express, No. 2014-02-
0064, 2015 TN Wrk. Comp. App Bd. LEXIS 14, at *9 (Tenn. Workers’ Comp. App. Bd.
May 18, 2015). In addition, a trial court’s ruling on a motion for summary judgment is
reviewed de novo with no presumption of correctness. See Wallis v. Brainerd Baptist
Church, 509 S.W.3d 886, 895 (Tenn. 2016) (“[W]e make a fresh determination of
whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have
been satisfied.”).

                                        Analysis

       To qualify for workers’ compensation benefits, an employee must prove by a
preponderance of the evidence that his or her injury arose “primarily out of and in the
course and scope of employment.” Tenn. Code Ann. § 50-6-102(14) (2017). To meet
this burden, an employee must prove that “the employment contributed more than fifty
percent (50%) in causing the injury, considering all causes.” Tenn. Code Ann. § 50-6-
102(14)(A).


                                            3
        When a motion for summary judgment has been filed pursuant to Rule 56 of the
Tennessee Rules of Civil Procedure, a trial court may enter judgment in favor of the
moving party “if the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue of material
fact.” Tenn. R. Civ. P. 56.04. Moreover, a trial court must determine that the moving
party has: (1) affirmatively negated an essential element of the nonmoving party’s claim;
or (2) demonstrated that the nonmoving party’s evidence at the summary judgment stage
is insufficient to establish the claim. See Tenn. Code Ann. § 20-16-101 (2017); Rye v.
Women’s Care Ctr. of Memphis, 477 S.W.3d 235, 264 (Tenn. 2015). Once the moving
party meets its burden of production at the summary judgment stage, the nonmoving
party “must do more than simply show that there is some metaphysical doubt as to the
material facts.” Rye, 477 S.W.3d at 265 (citation omitted). Instead, the nonmoving party
“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.” Id. Finally, in reviewing a decision
granting summary judgment, an appellate court “must review the evidence in a light most
favorable to the nonmoving party and draw all inferences in favor of the nonmoving
party.” Arnold v. Courtyard Mgmt. Corp., No. W2015-02266-SC-WCM-WC, 2016
Tenn. LEXIS 648, at *7 (Tenn. Workers’ Comp. Panel Sept. 28, 2016).

       Nothing in the workers’ compensation law dictates the type of proof an employee
must present to establish that an accident arose primarily out of employment. While
direct evidence, such as eyewitness testimony, can satisfy this burden, an employee can
also meet this burden with circumstantial evidence. See, e.g., Halliburton v. Metokote
Corp., No. M2004-00364-WC-R3-CV, 2005 Tenn. LEXIS 231, at *8 (Tenn. Workers’
Comp. Panel Mar. 21, 2005) (“Any fact may be proved by direct evidence, circumstantial
evidence, or a combination of [the two].”); Swift & Co. v. Howard, 212 S.W.2d 388, 390
(Tenn. 1948) (“Circumstantial evidence may support a finding of fact or an award in
[workers’] compensation proceeding[s], and a finding or award may be based on
inference[s] drawn from circumstantial evidence.”) (citation omitted); Tennessee
Chemical Co. v. Smith, 238 S.W. 97, 98 (Tenn. 1921) (“That his death was so caused
may be shown by circumstantial evidence just as any other fact is proven.”); see also
Padilla v. Twin City Fire Ins. Co., 324 S.W.3d 507, 517 (Tenn. 2010) (Wade, J.,
dissenting) (“[T]he law does not distinguish between the probative value of direct
evidence and the probative value of circumstantial evidence.”) (citation omitted).

       In the present case, we must view the evidence in a light most favorable to
Employee as the nonmoving party. Although Employee was unable to present direct
evidence as to the cause of her slip-and-fall, she presented testimony that the area around
her workstation was dusty; she described the substance as an “oily dust”; she testified that
when her foot touched the concrete beyond her work mat, it slid out from under her; and
she testified that her clothes were covered in dust and oil after she fell. Such testimony,
although circumstantial in nature, could support a reasonable inference that her slip-and-
fall was primarily caused by a hazard incident to her employment, namely, oily dust

                                             4
produced by the extrusion process. Employer asserts in its statement of undisputed
material facts that “Employee does not know what caused her to fall.” While this may be
true, the circumstantial evidence presented to date raises a genuine issue of material fact
as to whether the “oily dust” was a hazard incident to her employment and caused her
fall.

       As a result, we do not agree that summary judgment was appropriate in this case.
Instead, we conclude there is a genuine issue of material fact as to whether a hazard
incident to employment was the primary cause of her accident and resulting injury. In so
holding, we do not intend to suggest that Employee has proven by a preponderance of the
evidence that her accident arose primarily out of her employment. Instead, we conclude
merely that this case does not meet the standards for summary judgment.

                                       Conclusion

       Based on the foregoing, we reverse the determination of the trial court and remand
the case for additional proceedings.




                                            5
                        TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                          WORKERS’ COMPENSATION APPEALS BOARD

Kathleen Delores LaGuardia                                )   Docket No. 2016-02-0380
                                                          )
v.                                                        )   State File No. 51640-2016
                                                          )
Total Holdings USA, Inc., d/b/a                           )
Hutchinson Sealing Systems, et al.                        )


                                      CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 29th day of November, 2017.
 Name                     Certified   First Class   Via   Fax       Via     Email Address
                          Mail        Mail          Fax   Number    Email

 Russell W. Adkins                                                    X     radkins@wilsonworley.com
 Michael L. Forrester                                                 X     forrest@hsdlaw.com
 Brian K. Addington,                                                  X     Via Electronic Mail
 Judge
 Kenneth M. Switzer,                                                  X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                  X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: WCAppeals.Clerk@tn.gov
