                                                                                  FILED
                                                                                 Jan 30, 2019
                                                                                02:00 PM(CT)
                                                                                 TENNESSEE
                                                                            WORKERS' COMPENSATION
                                                                               APPEALS BOARD

             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD

Jane Watts                                   ) Docket No. 2018-01-0371
                                             )
v.                                           ) State File No. 36148-2018
                                             )
JTEKT North America, et al.                  )
                                             )
                                             )
Appeal from the Court of Workers’            )
Compensation Claims                          )
Thomas L. Wyatt, Judge                       )

     Affirmed in Part, Vacated in Part, and Remanded – Filed January 30, 2019

Following the employee’s report of a work-related back injury, the employer provided a
panel of physicians from which the employee selected a doctor for treatment. The
doctor’s initial report included a statement indicating the doctor did not “feel” the
employee’s condition “could be considered greater than 50% related to her employment.”
Based primarily on this report, the employer filed a motion for summary judgment less
than thirty days after the issuance of a dispute certification notice. The employee did not
file a written response to the motion. The trial court denied the motion, determining the
employer’s submittals did not negate an essential element of the employee’s claim. The
employer has appealed. We affirm the trial court’s determination that the employer did
not negate an essential element of the employee’s claim. However, we vacate the trial
court’s order denying the motion for summary judgment and remand the case for the
court to determine whether the employer demonstrated that the employee’s evidence was
insufficient as a matter of law to establish her claim in accordance with Rule 56 of the
Tennessee Rules of Civil Procedure.

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

Marianna L. Jablonski, Knoxville, Tennessee, for the employer-appellant, JTEKT North
America

Jane Watts, Vonore, Tennessee, employee-appellee, pro se




                                            1
                         Factual and Procedural Background

        Jane Watts (“Employee”) filed a petition for benefits in May 2018 alleging she
sustained a back injury on April 19, 2018, while performing work for JTEKT North
America (“Employer”). A dispute certification notice was filed on August 15, 2018.
Less than thirty days later Employer filed a motion for summary judgment asserting
Employee would be unable to produce any expert medical testimony to establish any
disputed issue of material fact concerning her claim. Specifically, Employer asserted that
no medical doctor had offered an opinion that Employee’s alleged injury is more than
50% related to her work, considering all causes. According to Employer, Employee
“cannot establish the existence of a work-related injury . . ., causation of same and any
resulting disability.” Employee did not file a response to the motion or respond to
Employer’s statement of undisputed facts.

        Employer supported its motion with an affidavit of Employer’s Health Services
Coordinator (“HSC”), a Choice of Physician form (Form C-42) indicating Employee had
selected Dr. John Sanabria as her treating physician, and the signed medical report of
Employee’s May 23, 2018 visit with Dr. Sanabria. Employer’s statement of undisputed
facts relied heavily on the affidavit of Employer’s HSC, which stated that on the morning
of April 23, 2018, Employee reported to Employer’s on-site nursing office that she
needed to go to the emergency room because she was having back pain and numbness
that started in her right knee and traveled up her back. According to the affidavit,
Employee reported that her pain began on April 19, 2018 and became worse over time. It
asserted that the HSC asked Employee if “she had fallen or had been injured in any way
at work,” and that Employee “denied any work injury.” According to the affidavit,
Employee was asked to return to the on-site medical clinic following her visit to the
hospital so she could advise Employer of any work restrictions or present a release to
return to work. It stated that, upon Employee’s return to the clinic that afternoon,
Employee reported that the emergency room physician had assigned restrictions of no
lifting greater than five pounds for three days. The affidavit indicated that the HSC
advised Employee that she should follow the restrictions and that Employer would
accommodate the restrictions.

       The HSC’s affidavit stated that Employee returned to Employer’s on-site clinic
four days later and was seen by a nurse who encouraged Employee to perform daily
exercises that could help with sciatica relief and to return to the clinic in one week or
sooner if needed. The affidavit further stated that Employee returned to the on-site
medical clinic on May 1 and May 2, and that “[t]hroughout all of her visits to the on-site
nursing office in April and May 2018, [Employee] never reported any connection
between her pain and any work duties or incident occurring at work.” According to the
affidavit, on May 21, Employer received an email from the Tennessee Bureau of
Workers’ Compensation advising them Employee had filed a petition for benefits.
Finally, the affidavit stated that Employee returned to Employer on May 23 and “alleged

                                            2
she had previously injured herself at work”; that she was “directed to [Employer’s] on-
site nursing office” where she reported back pain and was provided a panel of physicians;
and that she selected Dr. Sanabria from the panel as her treating physician.

        The signed medical report of Employee’s May 23 visit with Dr. Sanabria noted
that Employee alleged sustaining a back injury on April 19, 2018, while “slipping and
sliding” on an oily floor and “moving rack bars from one machine to another.” It
indicated that Employee sought treatment at the emergency room, that she had been
diagnosed with sciatica, and that Employee did not “fall or have any specific trauma or
strain.” Dr. Sanabria’s report included the following concerning the cause of Employee’s
condition:

      We briefly discussed the new State of Tennessee guidelines for workers[’]
      comp. Since there was no specific trauma or strain at work, only “slipping
      and sliding” on an oily floor, we do not feel her current condition could be
      considered greater than 50% related to her employment[.]

       As previously noted, Employee did not file a response to Employer’s summary
judgment motion. The trial court conducted a telephonic hearing on the motion, and in
response to the judge’s prompting during the hearing, Employee attested to the accuracy
of a typed but unsigned narrative that Employee had filed with her petition.

        The trial court denied Employer’s motion, noting that “[i]f [Employer’s]
production [did] not sufficiently establish a causation opinion, it has not negated
[Employee’s] claim that her injury is compensable and thus is not entitled to summary
judgment.” The trial court determined that “summary judgment cannot rest on Dr.
Sanabria’s opinion for several reasons,” stating (1) the doctor “used an incorrect legal
standard in concluding that [Employee’s] injury is not work-related”; (2) that Dr.
Sanabria’s opinion “also misstates the statutory standard for determining whether an
injurious event at work arose primarily out of and in the course and scope of
employment”; and (3) that “summary judgment cannot rest on Dr. Sanabria’s opinion
because the issue whether [Employee’s] description of injury constituted a trauma or
strain is a factual determination.” Employer has appealed.

                                  Standard of Review

       The grant or denial of a motion for summary judgment is an issue of law and,
therefore, our standard of review is de novo with no presumption of correctness. Rye v.
Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); McBee v.
CSX Transp., Inc., No. W2015-01253-COA-R3-CV, 2017 Tenn. App. LEXIS 129, at *14
(Tenn. Ct. App. Feb. 24, 2017). As such, we must “make a fresh determination of
whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have
been satisfied.” Rye, 477 S.W.3d at 250.

                                           3
                                         Analysis

       Employer raises four issues on appeal. First, it contends the trial court erred in
failing to consider Employee’s burden of proof at the summary judgment stage.
Employer’s remaining issues address the three reasons stated by the trial court as the
basis for determining summary judgment cannot rest on Dr. Sanabria’s opinion.
Employer’s issues assert the trial court erred in its determination concerning each of the
three reasons. We view the determinative issues to be whether Employer affirmatively
negated an essential element of Employee’s claim and whether Employer demonstrated
that Employee’s evidence was insufficient to establish Employee’s claim.

        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. In a motion for summary
judgment filed by a party who does not bear the burden of proof at trial, the moving party
may satisfy its burden of production either “(1) by affirmatively negating an essential
element of the nonmoving party’s claim or (2) by demonstrating that the nonmoving
party’s evidence at the summary judgment stage is insufficient to establish the
nonmoving party’s claim or defense.” Rye, 477 S.W.3d at 264 (first emphasis added);
see also Tenn. Code Ann. § 20-16-101 (2018).

         Whether Employer Negated an Essential Element of Employee’s Claim

       Employer relies on statements in Dr. Sanabria’s May 23, 2018 report to negate
causation, an essential element of Employee’s claim. Dr. Sanabria did not provide
testimony by affidavit or otherwise, nor was the report upon which Employer relies
generated in response to an inquiry requesting Dr. Sanabria’s opinions. Rather, the
statements are included in Dr. Sanabria’s May 23, 2018 report under headings of
“History of Present Illness” and “Plan.” The report was electronically signed by Dr.
Sanabria and was admissible in the Court of Workers’ Compensation Claims regardless
of whether it was accompanied by an affidavit. See Tenn. Comp. R. & Regs. 0800-02-
21-.16(6)(b) (2018). Noting that the medical evidence was limited to Dr. Sanabria’s
report, and asserting that his causation opinion was entitled to a statutory presumption of
correctness, Employer contends that Dr. Sanabria’s causation opinion “was not and could
not have been rebutted . . . [and] must stand.” The language in the “Plan” section of Dr.
Sanabria’s report expressing his “opinion” bears repeating:

       We briefly discussed the new State of Tennessee guidelines for workers[’]
       comp. Since there was no specific trauma or strain at work, only “slipping
       and sliding” on the oily floor, we do not feel her current condition could be
       considered greater than 50% related to her employment[.]


                                             4
       There is no indication Dr. Sanabria was expressing a causation opinion based upon
a reasonable degree of medical certainty. See Tenn. Code Ann. § 50-6-102(14)(C), (D).
Indeed, the report suggests the statement was based on “the new State of Tennessee
guidelines for workers[’] comp,” which are not identified, described, or addressed in the
record. In this context of an apparent discussion of the “new State of Tennessee
guidelines,” the report states that “[s]ince there was no specific trauma or strain at work,”
Dr. Sanabria did not feel Employee’s current condition could be considered greater than
50% related to her employment.

        In evaluating a trial court’s decision to deny a motion for summary judgment, we
consider the evidence in a light most favorable to 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). When evidence is presented to a trial
judge in the form of an affidavit and documentary evidence, the reviewing court must
reach its own conclusions about the weight afforded the evidence. See Glisson v. Mohon
Int’l, Inc., 185 S.W.3d 348, 353 (Tenn. 2006). Having considered the statements in Dr.
Sanabria’s report in the context in which they were made, particularly concerning the
“new” and unidentified State “guidelines,” we hold the statements are insufficient to
negate causation as a matter of law. Accordingly, we affirm the trial court’s
determination that Employer did not affirmatively negate causation. However, that does
not end our inquiry.

Whether Employer Demonstrated that Employee’s Evidence was Insufficient to Establish
                               Employee’s Claim

        Employer contends that because Employee failed to offer any medical evidence in
response to its summary judgment motion, Employee failed to establish a genuine issue
for trial, entitling Employer to a judgment as a matter of law. As noted in Rye, the
second manner in which a moving party who does not have the burden of persuasion at
trial may satisfy Rule 56’s burden of production is to

       demonstrate to the court that the nonmoving party’s evidence is insufficient
       to establish an essential element of the nonmoving party’s claim. If the
       nonmoving party cannot muster sufficient evidence to make out its claim, a
       trial would be useless and the moving party is entitled to summary
       judgment as a matter of law.

Rye, 477 S.W.3d at 255 (emphasis omitted) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 331 (1986) (Brennan, J., dissenting)). Quoting further from Justice Brennan’s
dissenting opinion in Celotex, in which he sought “to explain more clearly” what is
required to meet this second option for satisfying Rule 56’s burden, the Rye Court stated:



                                             5
       Where the moving party . . . seeks summary judgment on the ground that
       the nonmoving party – who will bear the burden of persuasion at trial – has
       no evidence, the mechanics of discharging Rule 56’s burden of production
       are somewhat trickier. Plainly, a conclusory assertion that the nonmoving
       party has no evidence is insufficient. Such a “burden” of production is no
       burden at all and would simply permit summary judgment procedure to be
       converted into a tool for harassment. Rather, as the Court confirms, a party
       who moves for summary judgment on the ground that the nonmoving party
       has no evidence must affirmatively show the absence of evidence in the
       record. This may require the moving party to depose the nonmoving
       party’s witnesses or to establish the inadequacy of documentary evidence.
       If there is literally no evidence in the record, the moving party may
       demonstrate this by reviewing for the court the admissions, interrogatories
       and other exchanges between the parties that are in the record. Either way,
       however, the moving party must affirmatively demonstrate that there is no
       evidence in the record to support a judgment for the nonmoving party.

Id. at 255-56 (emphases omitted) (quoting Celotex, 477 U.S. at 331-32 (Brennan, J.,
dissenting)).

       Here, Employee did not respond in writing to Employer’s motion for summary
judgment as Rule 56 requires. We note, however, that Employer’s motion was filed less
than thirty days following the issuance of the dispute certification notice, and the hearing
of the summary judgment motion was conducted forty-five days later. The record
discloses that the trial court conducted another hearing three weeks prior to the summary
judgment hearing “to discuss proceedings attendant to [Employer’s] Motion for Summary
Judgment.” The order addressing this hearing reflects that the court “intended to inform
[Employee] regarding some of the procedures applicable to the Motion for Summary
Judgment.” Additionally, the order reflects that Employee did not participate in this
hearing.

       During the hearing of the summary judgment motion, Employee advised the court
she was unaware the summary judgment hearing had been scheduled until a call was
placed to her by the court immediately preceding the hearing. Employee did not submit
an affidavit indicating she could not present facts essential to justify her opposition to
Employer’s motion as contemplated in Rule 56.07. However, Employee’s request for a
continuance during the summary judgment hearing “so [she] could get a little bit more
prepared for it” was denied.

       In its order denying summary judgment, the trial court identified the issue as
whether Employer “produced sufficient evidence of the treating physician’s causation
opinion to entitle it to summary judgment.” Although the court determined Employer did
not produce sufficient evidence to negate causation, the court did not address the second

                                             6
method in which a party filing a motion for summary judgment who does not have the
burden of persuasion at trial may satisfy Rule 56’s burden of production. Specifically,
the trial court did not address whether Employer affirmatively demonstrated the absence
of evidence in the record to support a judgment for Employee as contemplated in Rye.

                                       Conclusion

       Accordingly, for the reasons stated above, we affirm the trial court’s determination
that Employer failed to negate causation. However, we vacate the trial court’s order
denying summary judgment and remand the case for the trial court to determine whether
Employer demonstrated that Employee’s evidence was insufficient as a matter of law to
establish her claim in accordance with Rule 56 of the Tennessee Rules of Civil
Procedure.




                                            7
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Jane Watts                                              )     Docket No. 2018-01-0371
                                                        )
v.                                                      )     State File No. 36148-2018
                                                        )
JTEKT North America, et al.                             )
                                                        )
                                                        )
Appeal from the Court of Workers’                       )
Compensation Claims                                     )
Thomas L. Wyatt, Judge                                  )

                                     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 30th day of January, 2019.

 Name                              Certified   First   Via   Fax      Via     Sent to:
                                   Mail        Class   Fax   Number   Email
                                               Mail
 Jane Watts                                       X                     X     Janew8079@gmail.com;
                                                                              1847 Hwy 411, Lot 20
                                                                              Vonore, TN 37885
 Marianna Jablonski                                                     X     mjablonski@wimberlylawson.com
 Thomas L. Wyatt, Judge                                                 X     Via Electronic Mail
 Kenneth M. Switzer, Chief Judge                                        X     Via Electronic Mail
 Penny Shrum, Clerk, Court of                                           X     penny.patterson-shrum@tn.gov
 Workers’ Compensation Claims




Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov
