                                                                                      F~ED

                                                                                    August 5, 2016

                                                                                     1N COURT OF
                                                                                WORKERS' CO!\IPINSATIO -
                                                                                        CLAIMS

                                                                                       Tim e 1: 15 Pl\1



             TENNESSEE BUREAU OF WORKERS' COMPENSATION
               COURT OF WORKERS' COMPENSATION CLAIMS
                            AT JACKSON

ESSIE JOHNSON,                                )   Docket No.: 2015-07-0270
          Employee,                           )
v.                                            )
                                              )
FIRST UNITED METHODIST                        )   State File No.: 76187-2015
CHURCH,                                       )
         Employer,                            )
And                                           )
                                              )
TRAVELERS,                                    )   JUDGE AMBER E. LUTTRELL
        Insurance Carrier.                    )

 ORDER GRANTING EMPLOYER'S MOTION FOR SUMMARY JUDGMENT


         This matter came before the Court upon Employer/Carrier's Motion for Summary
Judgment filed pursuant to Rule 56 of the Tennessee Rules of Civil Procedure on May 4,
2016. Ms. Johnson, a self-represented Employee, filed a response on May 26, 2016, and
later filed a doctor's note as an exhibit to her response. The central legal issue is whether
First United Methodist Church (FUMC) is entitled to judgment as a matter of law
because Ms. Johnson's alleged back injury did not arise primarily out of and in the course
and scope of her employment. For the reasons set forth below, the Court holds FUMC is
entitled to summary judgment.

                                    Procedural History

       Ms. Johnson filed a Petition for Benefit Determination seeking medical and
temporary disability benefits. The parties did not resolve the disputed issues through
mediation, and the Mediating Specialist filed a Dispute Certification Notice. Ms. Johnson
filed a Request for Expedited Hearing, and this Court heard the matter on December 9,
2015.

      At the Expedited Hearing, Ms. Johnson argued she sustained an injury, or
aggravation, to her back arising primarily out of her employment. FUMC countered that

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Dr. Murrell, the physician selected from the panel, opined Ms. Johnson's back symptoms
did not arise out of a work-related injury, but rather resulted from her underlying
degenerative condition.

       Following the hearing, the Court issued an Expedited Hearing Order Denying
Medical and Temporary Disability Benefits. The Court determined Dr. Murrell, the panel
physician, offered the only medical causation opinion for Ms. Johnson's alleged injury,
and pursuant to Tennessee Code Annotated section 50-6-102(14)(E), his opinion is
afforded a presumption of correctness that is rebuttable only by a preponderance of the
evidence. The Court held Ms. Johnson offered no medical proof to rebut Dr. Murrell's
opinion; thus, she did not come forward with sufficient evidence from which the Court
could determine she is likely to prevail at a hearing on the merits. Ms. Johnson did not
appeal the Court's decision.

        FUMC subsequently filed Employer's Motion to Dismiss with Prejudice pursuant
to Tennessee Compilation Rules & Regulations 0800-02-21.14(3). Ms. Johnson timely
filed a Response to Motion to Dismiss with Prejudice and the motion was heard on April
4,2016.

       Prior to the Court's ruling on Employer's Motion to Dismiss, the Appeals Board
issued its decision in Syph v. Food Choice Group, Inc., No. 2015-06-0288, 2016 TN
Wrk. Comp. App. Bd. LEXIS 18 (Tenn. Workers' Comp. App. Bd. Apr. 21, 2016). In
light of the holding in Syph, the Court entered an Order directing FUMC to file a motion
in compliance with the Tennessee Rules of Civil Procedure. FUMC then filed the instant
Motion for Summary Judgment. The parties waived a hearing on this motion.

                                 Findings ofthe Court
        Motions for summary judgment are governed by Tennessee Code Annotated
section 20-16-101 (2015) and Tennessee Rule of Civil Procedure 56. Rule 56.03 requires
that a motion for summary judgment "be accompanied by a separate concise statement of
the material facts as to which the moving party contends there is no genuine issue for
trial." Aside from Rule 56, in 2011, the Tennessee General Assembly codified the burden
of proof applicable to a motion for summary judgment filed by a party who does not bear
the burden of proof at trial as follows:

      In motions for summary judgment in any civil action in Tennessee, the
      moving party who does not bear the burden of proof at trial shall prevail on
      its motion for summary judgment if it:

             (1) Submits affirmative evidence that negates an essential
                 element of the nonmoving party's claim; or


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              (2) Demonstrates to the court 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 (2015); Payne v. D and D Electric, No. 2014-01-0023,
2016 TN Wrk Comp. App. Bd. LEXIS 21, at *7-8 (Tenn. Workers' Comp. App. Bd. May
4, 2016).

       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." Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 265 (Tenn.
2015). Prior to Rye, trial and appellate courts were required to assume that the nonmoving
party faced with a motion for summary judgment might, by the time of trial, produce
evidence to support the nonmoving party's claim. See Rye, 477 S.W.3d at 261. However,
with the passage of Tennessee Code Annotated section 20-16-101 and reexamination of
the summary judgment standard in Rye, the burden falls to the nonmoving party to
produce evidence to establish the essential elements of the nonmoving party's claim in
response to the motion for summary judgment. "The focus is on the evidence the
nonmoving party comes forward with at the summary judgment stage, not on
hypothetical evidence that theoretically could be adduced ... at a future trial." !d. at 265
(emphasis added). Thus, in this case, FUMC's summary judgment motion requires Ms.
Johnson to submit evidence establishing the essential elements of her workers'
compensation claim.

        One of those elements is the requirement that Ms. Johnson must demonstrate
her injury arose primarily out of and occur in the course and scope of the employment.
Tenn. Code Ann. § 50-6-102(14) (2015). "Arising primarily out of and in the course
and scope of employment" requires a showing, to a reasonable degree of medical
certainty, that the injury causing disablement or the need for medical treatment
contributed more than 50% considering all causes. Tenn. Code Ann. § 50-6-
102(14)(C) (2015). "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. Tenn. Code Ann.§ 50-6-102(14)(D) (2015). Based on the following, the Court
finds Ms. Johnson has not established this element of her claim.

       FUMC accompanied its motion for summary judgment with a statement of
material facts it asserted to be material and undisputed, which were presented in
separate numbered paragraphs pursuant to Rule 56.03. FUMC's motion set forth the
Court's holding at the Expedited Hearing that Ms. Johnson's medical evidence was
insufficient to establish that her alleged back injury arose primarily out of and in the
course and scope of her employment.


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       In opposition to the motion, Ms. Johnson filed a response. However, the Court
finds the response submitted did not meet the requirements of Rule 56 in that Ms.
Johnson did not file a response to the facts set forth by FUMC in its statement of
undisputed facts. Instead, Ms. Johnson set forth four statements unresponsive to FUMC's
seven statements of undisputed fact with the exception of paragraph four, which stated,
"Employee has been treating with Dr. Earl Stewart for her back injury. Employee hereby
submits Dr. Stewart's statement that her back injury was caused by the employment."
Ms. Johnson subsequently filed a handwritten note on a prescription pad from Dr. Earl
Stewart dated May 18, 2016, where he opined, "Patient is not able to work due to chronic
radicular back pain."

       Contrary to Ms. Johnson's assertion in paragraph four of her response, the Court
finds Dr. Stewart's note fails to include a medical opinion stating or even suggesting that
her back condition arose primarily out of and in the course and scope of her employment
at FUMC. In fact, Dr. Stewart's note did not address causation at all. Absent such an
opinion, the Court finds Ms. Johnson failed to "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." See Rye, 477 S.W.3d at 265.

       The Court is required to review the evidence in the light most favorable to the
nonmoving party and to draw all reasonable inferences favoring that party. Martin v.
Norfolk S. Ry Co., 271 S.W.3d 76, 84 (Tenn. 2008). Having carefully reviewed and
considered the evidence in the light most favorable to Ms. Johnson, the Court holds
FUMC has demonstrated Ms. Johnson's evidence is insufficient at the summary
judgment stage to establish an injury arising primarily out of and in the course and scope
of her employment as is required for her to prevail at trial. Id.

       Accordingly, FUMC's Motion for Summary Judgment is granted and Ms.
Johnson's claim is hereby dismissed with prejudice. The costs of this cause are taxed to
FUMC pursuant to Tennessee Compilation Rules and Regulations Rule 0800-02-21-.07
to be paid within five days of the entry of this order. In addition, FUMC shall prepare and
submit the SD-1 for this matter within ten days of the date of judgment.

       IT IS SO ORDERED.

       ENTERED this the     5~ay of [~· ~

                                   Judge Amber E. Luttrell
                                   Court of Workers' Compensation Claims


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Right to Appeal:

      Tennessee Law allows any party who disagrees with this Compensation Hearing
Order to appeal the decision to the Workers' Compensation Appeals Board or the
Tennessee Supreme Court. To appeal your case to the Workers' Compensation Appeals
Board, you must:

   1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within thirty calendar days of the
      date the Workers' Compensation Judge entered the Compensation Hearing Order.

   3. Serve a copy of the Compensation Hearing Notice of Appeal upon the opposing
      party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or
      other delivery service. In the alternative, the appealing party may file an Affidavit
      of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
      fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
      of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
      will consider the Affidavit of Indigency and issue an Order granting or denying
      the request for a waiver of the filing fee as soon thereafter as is
      practicable. Failure to timely pay the filing fee or file the Affidavit of
      Indigency in accordance with this section shalf result in dismissal of the
      appeal.

   5. The party filing the notice of appeal, having the responsibility of ensuring a
      complete record on appeal, may request, from the Court Clerk, the audio recording
      of the hearing for the purpose of having a transcript prepared by a licensed court
      reporter and filing it with the Court Clerk within fifteen calendar days of the filing
      of the Expedited Hearing Notice of Appeal. Alternatively, the party filing the
      appeal may file a joint statement of the evidence within fifteen calendar days of
      the filing of the Compensation Hearing Notice of Appeal. The statement of the
      evidence must convey a complete and accurate account of what transpired in the
      Court of Workers' Compensation Claims and must be approved by the workers'
      compensation judge before the record is submitted to the Clerk of the Appeals
      Board. See Tenn. Comp. R. & Regs. 0800-02-22-.03 (20 15).

   6. After the Workers' Compensation Judge approves the record and the Court Clerk
      transmits it to the Workers' Compensation Appeals Board, the appeal will be

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       docketed and assigned to an Appeals Board Judge for review. At that time, a
       docketing notice shall be sent to the parties. Thereafter, the parties have fifteen
       calendar days to submit briefs to the Appeals Board for consideration. See Tenn.
       Comp. R. & Regs. 0800-02-22-.02(3) (2015).

       To appeal your case directly to the Tennessee Supreme Court, the
Compensation 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, this Order will become final by operation of law thirty calendar days after
entry, pursuant to Tennessee Code Annotated section 50-6-239(c)(7).


                             CERTIFICATE OF SERVICE

       I hereby certifY that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on this the 5th day of August, 2016.


Name                         Certified Via       Via      Service sent to:
                             Mail      Fax       Email
Essie Johnson,                  X                         33 Denmark Jackson Road
Employee                                                  Denmark, Tennessee 38391
Millie Sabbatini, Esq.;                             X     msabbati(tl)travelers.com;
Paul T. Nicks, Esq.                                       pnicks@travelers.com
Employer's Counsel




                                                          Clerk of Court




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