                                                                                FILED
                                                                              Jan 09, 2019
                                                                             07:50 AM(CT)
                                                                           TENNESSEE COURT OF
                                                                          WORKERS' COMPENSATION
                                                                                 CLAIMS




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

STEPHANIE BRYANT,                          ) Docket No. 2018-05-0187
         Employee,                         )
v.                                         )
                                           )
FRITO LAY, INC.,                           ) State File No. 5177-2016
         Employer,                         )
and                                        )
                                           )
AGRI GENERAL INS. CO.,                     ) Judge Dale Tipps
         Carrier.                          )


 COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT



        This matter came before the Court on January 8, 2019, on Frito Lay’s Motion for
Summary Judgment. The central legal issue is whether Frito Lay is entitled to summary
judgment on grounds that Ms. Bryant failed to present sufficient evidence of causation,
an essential element of her claim. For the reasons below, the Court holds Frito Lay is
entitled to summary judgment.
                                 Procedural History
       Ms. Bryant suffered a work injury on January 18, 2016. Frito Lay accepted the
injury as compensable and provided medical treatment for her neck and shoulder pain.
Ms. Bryant saw several doctors, including Dr. Robert Weiss, a neurosurgeon who
evaluated her cervical problems. Ms. Bryant acknowledged that Dr. Weiss was an
authorized provider, but contended that the panel from which he was selected was invalid
because it only included two doctors.
       Frito Lay denied Ms. Bryant’s request for another panel, so she began treating on
her own with Dr. Jason Hubbard. He noted a prior fusion at C4-5 and diagnosed severe
stenosis at C3, which was compressing the spinal cord. Dr. Hubbard performed a C3
corpectomy and a C2 to C4 fusion with an expandable cage.


                                           1
       Following an Expedited Hearing, the Court entered an order denying additional
medical benefits. Specifically, the Court held that Ms. Bryant did not establish her injury
arose primarily out of her employment or that it contributed more than fifty percent to her
need for medical treatment. See Tenn. Code Ann. § 50-6-102(14)(A), (C) (2018).
      Frito Lay filed this Motion for Summary Judgment along with a statement of
undisputed facts. Ms. Bryant did not file a response to the motion. The Court heard the
Motion telephonically on January 8, 2019. Ms. Bryant did not call.
                                   Frito Lay’s Motion
       Frito Lay filed a statement of undisputed material facts with citations to the record
in compliance with Tennessee Rules of Civil Procedure 56.03. The dispositive material
facts were:
   1. Ms. Bryant’s work accident occurred on January 18, 2016.
   2. Ms. Bryant had pre-existing cervical symptoms beginning in 1995.
   3. Ms. Bryant underwent a cervical fusion at L5-6 in 2000.
   4. Ms. Bryant re-injured her neck in 2006.
   5. Ms. Bryant was receiving periodic care for her neck symptoms in 2014 and 2015,
      four months before her work injury of January 18, 2016.
   6. Dr. Weiss opined that, “any pathology noted on [Ms. Bryant’s] imaging studies,
      structural and anatomic, was present several years before her work injury.”
   7. Concerning Ms. Bryant’s cervical complaints, Dr. Weiss opined: “I do not see any
      issues that are current, that are neurosurgical and related to this latest work
      injury.”
       Frito Lay contended those facts supported summary judgment because they
constitute affirmative evidence that Ms. Bryant cannot establish essential elements of her
claim. Specifically, it argued she cannot prove her claimed medical expenses are
reasonable and necessary, nor can she prove that her alleged injury arose primarily from
her employment. It cited Payne v. D and D Elec., 2016 TN Wrk. Comp. App. Bd.
LEXIS 21 (May 4, 2016), for the proposition that summary judgment is appropriate when
an employee fails to produce expert medical proof of causation that counters an
employer’s proof to the contrary.
       As noted above, Ms. Bryant did not appear for the hearing. Further she did not
offer any medical evidence to oppose the motion or ask for an extension of time to obtain
additional evidence.
                                    Law and 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

                                             2
judgment as a matter of law.” Tenn. R. Civ. P. 56.04.

       As the moving party, Frito Lay must do one of two things to prevail on its motion:
(1) submit affirmative evidence that negates an essential element of the nonmoving
party’s claim, or (2) demonstrate that the nonmoving party’s evidence is insufficient to
establish an essential element of the nonmoving party’s claim. Tenn. Code Ann. § 20-16-
101; see also Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264
(Tenn. 2015). If Frito Lay is successful in meeting this burden, the nonmoving party –
Ms. Bryant – must then establish that the record contains specific facts upon which the
Court could base a decision in her favor. Rye, at 265.
       Ms. Bryant filed no response opposing Frito Lay’s properly-supported motion for
summary judgment, and she failed to meet the technical requirement of Rule 56 by
responding to Frito Lay’s statement of undisputed material facts. Therefore, the Court
finds the motion and the facts are undisputed. The issue then is whether under Rule
56.06 summary judgment is “appropriate.”

       Considering the merits of the Frito Lay’s motion, the Court finds it successfully
negated the essential element of medical causation. Under Tennessee Code Annotated
section 50-6-102, Ms. Bryant must prove her injury arose primarily out of her
employment or that her work contributed fifty percent or more to her need for medical
treatment. Dr. Weiss unequivocally concluded that Ms. Bryant’s current neck problems
did not arise out of her work injury but instead resulted from a pre-existing condition.
This is sufficient to refute Ms. Bryant’s allegation that her neck condition and her need
for surgery arose primarily out of her employment.

       In responding to Frito Lay’s motion, Ms. Bryant must “demonstrate the existence
of specific facts in the record which could lead a rational trier of fact to find in [her]
favor[.]” Rye, at 265. Further, she must do more than simply offer hypothetical
evidence; she must produce evidence at this summary judgment stage of the case that is
sufficient to establish the essential elements of her workers’ compensation claim. Id.
Ms. Bryant failed to meet this burden, as she offered no countervailing evidence and
produced no material facts to lead the Court to find in her favor.
        Thus, there is no genuine issue of material fact, and the Court holds Frito Lay is
entitled to summary judgment as a matter of law.
IT IS, THEREFORE, ORDERED as follows:

   1. Frito Lay’s Motion for Summary Judgment is granted, and Ms. Bryant’s claim is
      dismissed with prejudice to its refiling.

   2. Absent appeal, this order shall become final thirty days after entry.


                                             3
   3. The Court taxes the $150.00 filing fee to Frito Lay under Tennessee Compilation
      Rules and Regulations 0800-02-21-.07 payable to the Clerk within five days of
      this order becoming final.

   4. Frito Lay shall prepare and submit the SD-2 with the Clerk within ten days of the
      date of judgment.

       ENTERED January 9, 2019.



                                          ______________________________________
                                          Judge Dale A. Tipps
                                          Court of Workers’ Compensation Claims

                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Order was sent to the following
recipients by the following methods of service on January 9, 2019.

 Name                      Certified Fax         Email   Service sent to:
                           Mail
 Stephanie Bryant                                X       uniquelybusiness@yahoo.com
 John R. Lewis, Esq.                             X       john@johnlewisattorney.com
 Employer Attorney



                                          ______________________________________
                                          Penny Shrum, Court Clerk
                                          Wc.courtclerk@tn.gov




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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
