                                                                                  FILED
                                                                                Oct 17, 2019
                                                                               09:31 AM(CT)
                                                                            TENNESSEE COURT OF
                                                                           WORKERS' COMPENSATION
                                                                                  CLAIMS




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

 LILLIAN HOWARD,                                ) Docket No. 2018-05-0841
          Employee,                             )
 v.                                             )
                                                )
 NHC HEALTHCARE/PULASKI, LLC,                   ) State File No. 60684-2018
         Employer,                              )
 And                                            )
                                                )
 PREMIER GROUP INS. CO.,                        ) Judge Dale Tipps
          Carrier.                              )



 COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT



       This case came before the Court on NHC’s Motion for Summary Judgment. The
issue is whether NHC is entitled to summary judgment on grounds that Ms. Howard’s
injury did not arise primarily out and in the course and scope of her employment, an
essential element of her claim. For the reasons below, the Court grants NHC’s motion.
                                  Procedural History
      Ms. Howard alleged she suffered a work-related injury to her back on February 2,
2018. NCH denied the claim, and Ms. Howard filed a Petition for Benefit Determination
seeking medical benefits.
       Following an expedited hearing, the Court found that Ms. Howard was not likely
to establish a work-related incident at a hearing on the merits. It further found that she
presented no medical proof of causation and was thus unlikely to establish that her
current back problems arose primarily out of her employment. After a subsequent
scheduling hearing, the Court issued a Scheduling Order setting deadlines for discovery,
expert witness disclosure, and medical depositions.




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     NHC filed this Motion for Summary Judgment on September 4, 2019.                    Ms.
Howard filed no response and failed to appear for the hearing on October 15.
                                           Facts
        NHC filed a statement of undisputed material facts with citations to the record in
compliance with Tennessee Rules of Civil Procedure 56.03. Because Ms. Howard failed
to file a response to the statement, the Court deems them admitted and summarizes them
as follows:
   1. Ms. Howard has not responded to NHC’s discovery responses.
   2. Ms. Howard has not disclosed the identity or report of any medical or expert
      witness she intends to introduce at the Compensation Hearing.
   3. The deadline to disclose the identity or report of any medical or expert witness has
      expired.
       Based on these facts, NHC argued the Court should grant summary judgment
because it affirmatively negated an essential element of Ms. Howard’s claim – that her
injury was primarily caused by her work – and that the facts are insufficient for Ms.
Howard to prove this element.
                                    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
judgment as a matter of law.” Tenn. R. Civ. P. 56.04 (2018).

       As the moving party, NHC must do one of two things to prevail on its motion: (1)
submit affirmative evidence that negates an essential element of the Ms. Howard’s claim,
or (2) demonstrate that Ms. Howard’s evidence is insufficient to establish an essential
element of her claim. Tenn. Code Ann. § 20-16-101 (2018); see also Rye v. Women’s
Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If NHC is
successful in meeting this burden, Ms. Howard must then establish that the record
contains specific facts upon which the Court could rule in her favor. Rye, at 265.
       The essential element at issue in this case is that Ms. Howard must demonstrate
that she suffered “an injury by accident . . . arising primarily out of and in the course and
scope of employment, that causes death, disablement or the need for medical treatment of
the employee.” This means she must prove, “to a reasonable degree of medical certainty
that [her work] contributed more than fifty percent (50%) in causing the . . . disablement
or need for medical treatment, considering all causes.” “Shown to a reasonable degree of
medical certainty” means that, “in the opinion of the treating physician, it is more likely
than not considering all causes as opposed to speculation or possibility.” Tenn. Code
Ann. § 50-6-102(14).

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       The undisputed facts are that Ms. Howard has disclosed no medical opinion
addressing the cause of her back problems. Further, she filed no response to the
Statement of Undisputed Facts, provided no additional evidence, and made no citations to
the record to refute the facts put forward by NHC. Ms. Howard’s evidence is therefore
insufficient to establish an essential element of her claim, and the Court must hold that
NHC is entitled to summary judgment as a matter of law.
IT IS, THEREFORE, ORDERED as follows:

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

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

   3. The Court taxes the $150.00 filing fee to NHC under Tennessee Compilation
      Rules and Regulations 0800-02-21-.06 payable to the Clerk within five days of
      this order becoming final.

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

      ENTERED October 17, 2019.



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




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                           CERTIFICATE OF SERVICE

      I certify that a copy of this Order was sent to the following recipients by these
methods of service on October 17, 2019.

 Name                     Certified Fax        Email   Service sent to:
                          Mail
 Lillian Howard,                               X       Lilhoward9894@gmail.com
 Employee
 Frank Gallina,                                X       fgallina@plcslaw.com
 Employer’s Attorney



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




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