             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD

Donald Rye                                  ) Docket No. 2017-06-0627
                                            )
v.                                          ) State File No. 12929-2015
                                            )
Calsonic Kansei North America, Inc., et al. )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Joshua D. Baker, Judge                      )

                 Affirmed and Remanded – Filed November 29, 2018

        This interlocutory appeal questions the correctness of the trial judge’s denial of
motions for summary judgment filed by the employee and the Subsequent Injury and
Vocational Recovery Fund (“Fund”). The employee alleges he suffered a compensable
bilateral carpal tunnel injury in 2015 and that he is 100% vocationally disabled as a result
of a combination of the 2015 injury and a 2013 work-related lumbar injury. The
employee asserts he is entitled to a partial summary judgment determining his bilateral
carpal tunnel injury to be compensable and his permanent vocational disability to be
100%. Although the employee’s bilateral carpal tunnel syndrome was not diagnosed
until 2015, the Fund contends it arose out of a 2012 work accident and had not advanced
since the time of the 2012 incident. Thus, the Fund contends it is entitled to a judgment
dismissing it as a party to the employee’s 2015 claim. For its part, the employer agrees
the employee sustained a compensable work-related bilateral carpal tunnel injury in 2015
and contends the only issue for trial is the apportionment of liability between it and the
Fund for permanent total disability benefits. The trial court concluded there were
material factual issues in dispute that precluded the grant of summary judgment to the
employee or the Fund. The employee and the Fund have appealed. We affirm the trial
court’s denial of the summary judgment motions and remand the case.

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.

Steven Fifield, Hendersonville, Tennessee, for the employee-appellant, Donald Rye

Ronald McNutt, Nashville, Tennessee, for the appellant, Subsequent Injury and
Vocational Recovery Fund for the Tennessee Bureau of Workers’ Compensation

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John White, Shelbyville, Tennessee, for the employer-appellee, Calsonic Kansei North
America, Inc.

                         Factual and Procedural Background

       Donald Rye (“Employee”) was employed by Calsonic Kansei North America, Inc.
(“Employer”), and was working in Employer’s Smyrna Nissan facility on July 10, 2012,
when he was struck by a forklift that was driven by an employee of another company.
Employee sustained serious cervical injuries as a result of the incident and underwent
cervical fusion surgery performed by Dr. Tarek Elalayli. From the time of the 2012
injury, Employee complained of radicular symptoms that extended from his neck into his
arms and hands. In January 2013, Dr. Elalayli placed Employee at maximum medical
improvement for his 2012 injuries and released him to return to full duty. At the time of
Employee’s release, Dr. Elalayli noted that Employee’s radicular symptoms had
improved but had not completely resolved, as Employee continued to complain of
residual numbness in his fingers.

       Following Employee’s return to work in 2013, he sustained another work-related
injury on April 17, 2013, when he bent down to pull a pin from a machine and fell
backwards, experiencing a sudden onset of low back pain. Employee again treated with
Dr. Elalayli for his lumbar injuries, undergoing two surgical procedures including a
fusion of his lumbar spine at L4/5 and L5/S1. He was out of work from mid-February
2014 until he returned to modified duty in November 2014. Dr. Elalayli placed
Employee at maximum medical improvement for his lumbar injury on January 5, 2015,
and suggested permanent work restrictions of no lifting greater than 20 pounds and no
bending below the waist.

        Employee continued to complain of radicular symptoms in his upper extremities
following his return to work in January 2013. Because the radicular symptoms persisted
after his April 2013 lumbar injury, Dr. Elalayli ordered an electromyography (“EMG”) in
December 2014. When Dr. Elalayli placed Employee at maximum medical improvement
for his lumbar injuries the following month, he advised Employee to follow up to discuss
the results of the EMG. The EMG was performed on February 5, 2015, and revealed
bilateral carpal tunnel syndrome. Employee did not return to work after February 5,
2015, and was placed on a leave of absence by Employer.

       Employee reported the bilateral carpal tunnel syndrome to Employer as a new
work-related injury. Employer accepted the claim and provided Employee medical care
with Dr. Thomas Dovan, an orthopedic surgeon. Dr. Dovan performed bilateral carpal
tunnel releases in April and June 2015 and performed a revision surgery on Employee’s
left wrist in December 2015 due to persisting symptoms. Following the surgeries,
Employee underwent a functional capacity evaluation (“FCE”). Based upon the results
of the FCE, Dr. Dovan released Employee from his care with no restrictions related to

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Employee’s bilateral carpal tunnel syndrome. As a result of Employee’s bilateral carpal
tunnel syndrome, Dr. Dovan assigned Employee a permanent impairment of four percent
to the body as a whole.

       Following Employee’s release by Dr. Dovan, Employee filed a petition for
benefits asserting he suffered a gradual injury to his upper extremities. The Fund was
made a party to the claim. The Fund disputed whether Employee had suffered a gradual
injury and disputed whether Employee’s carpal tunnel condition caused him to be
permanently totally disabled.

       Employee filed a motion for partial summary judgment, asserting his bilateral
carpal tunnel syndrome was a compensable work-related injury that, in combination with
his prior lumbar injury, rendered him permanently totally disabled. Employee
additionally contended that the Fund was liable for a portion of the permanent disability
benefits and that the allocation of liability between the Fund and Employer was the only
issue for trial.

       The Fund opposed Employee’s motion for partial summary judgment and filed its
own motion for summary judgment in which it asserted that Employee’s carpal tunnel
syndrome arose from the 2012 injury and was not advanced or aggravated by his
subsequent work for Employer. Responding to Employee’s and the Fund’s motions for
summary judgment, Employer contended that Employee sustained compensable work-
related bilateral carpal tunnel injuries in 2015. Employer asserted that the opinion of Dr.
Dovan causally relating Employee’s bilateral carpal tunnel syndrome to his work with
Employer foreclosed summary judgment in favor of the Fund. Employer agreed with
Employee that the only issue for trial was the allocation of liability between Employer
and the Fund.

       The trial judge denied both motions, noting that Employee and the Fund relied
“almost exclusively on the deposition testimony of Drs. Elalayli and Dovan.” Stating
that the parties’ requests that the judge “review the testimony and make a determination
of its meaning at the summary judgment phase” required the judge to “make factual
determinations,” the trial judge concluded there were “disputed material facts that
prohibit entry of summary judgment for either party.” Employee and the Fund have
appealed.

                                  Standard of Review

        A party is entitled to summary judgment only 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. The grant or denial of
a motion for summary judgment is an issue of law and, therefore, our standard of review

                                            3
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). 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.” Id. at 250.

                                         Analysis

                                            A.

        The burden is on the party pursuing summary judgment to demonstrate both that
no genuine issue of material fact exists and that the moving party is entitled to a judgment
as a matter of law. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008). If the
moving party does not meet its initial burden of production, the nonmoving party’s
burden is not triggered and the motion for summary judgment should be denied. Town of
Crossville Hous. Auth. v. Murphy, 465 S.W.3d 574, 578-79 (Tenn. Ct. App. 2014). If the
moving party makes a properly supported motion, the burden of production then shifts to
the nonmoving party to demonstrate the existence of a genuine issue of material fact. Id.
at 578. In reviewing a trial judge’s decision on a motion for summary judgment, we must
view all of the evidence in the light most favorable to the nonmoving party and resolve
all factual inferences in the nonmoving party’s favor. Luther v. Compton, 5 S.W.3d 635,
639 (Tenn. 1999). We are not to weigh the evidence when evaluating a motion for
summary judgment. See Martin, 271 S.W.3d at 87.

       When faced with competing motions for summary judgment, a trial court “must
rule on each party’s motion on an individual and separate basis.” CAO Holdings, Inc. v.
Trost, 333 S.W.3d 73, 83 (Tenn. 2010). As to each such motion, the trial court must
determine whether genuine disputes of material facts exist and whether the party seeking
summary judgment has satisfied the requirements of Rule 56 of the Tennessee Rules of
Civil Procedure in order to render a judgment as a matter of law. Accordingly, the
analysis of cross-motions for summary judgment is no different than the analysis of a
single summary judgment motion, and the denial of a motion for summary judgment does
not necessitate the granting of a competing cross-motion. Id. (citations omitted).

       When considering a motion for summary judgment where the moving party does
not bear the burden of proof at trial, as with the Fund’s motion in this case, the moving
party may make the required showing under Rule 56 and shift the burden of production to
the nonmoving party 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; see also Tenn. Code Ann. § 20-16-101 (2018). The
Fund attempts to make the required showing here to defeat Employee’s claim against it
by establishing that Employee’s bilateral carpal tunnel condition arose out of Employee’s
2012 work-related accident rather than being a gradual injury manifesting in 2015.

                                             4
                                            B.

       We begin with Employee’s assertion that he is entitled to a judgment as a matter
of law determining that (1) his claim of a 2015 gradual bilateral carpal tunnel injury is
compensable, and (2) he is permanently totally disabled as a result of his bilateral carpal
tunnel injury and his 2013 work-related lumbar injury.

        Rule 56.03 provides specific filing requirements for both the moving party and the
nonmoving party. The rule requires of the moving party that each fact “shall be set forth
in a separate, numbered paragraph,” and that “[e]ach fact shall be supported by a specific
citation to the record.” Tenn. R. Civ. P. 56.03. When a properly supported motion is
made, “the nonmoving party ‘may not rest upon the mere allegations or denials of [its]
pleading,’ but must respond, and by affidavits or one of the other means provided in
[Rule 56], ‘set out the specific facts’ at the summary judgment stage ‘showing that there
is a genuine issue for trial.’” Rye, 477 S.W.3d at 265 (quoting Tenn. R. Civ. P. 56.06).

       In accordance with Rule 56.03, Employee identified several facts he asserts to be
material and undisputed, including the facts that: (1) Dr. Dovan opined that Employee’s
“bilateral carpal tunnel condition arose primarily out of the course and scope of
[Employee’s] employment as a production technician with [Employer],” and (2)
Employee’s “permanent vocational disability is 100% in light of both his lumbar injury
and his bilateral carpal tunnel syndrome injury.” Employee supported his assertion that
Dr. Dovan provided an undisputed causation opinion by citing specific deposition
testimony of Dr. Dovan and exhibits to the deposition. Employee supported his assertion
of his “permanent vocational disability [of] 100% in light of both his lumbar injury and
his bilateral carpal tunnel syndrome injury” by citing specific deposition testimony of a
vocational evaluator, Michael Galloway, and exhibits to the evaluator’s deposition.

        The Fund denied that Dr. Dovan’s causation opinion was undisputed. It supported
this position by referencing specific testimony in Dr. Dovan’s deposition, arguing that the
testimony “ascribes causation to a repetitive injury from 2012.” As support for its denial
of Employee’s assertion of 100% “permanent vocational disability,” the Fund referenced
Employee’s January 2017 settlement of his 2013 low back injury claim. The Fund
contended that in January 2017 Employee represented to the Bedford County Circuit
Court that his disability was only “partial” and that he “regarded himself as [only]
partially disabled” even though he knew he had been placed at maximum medical
improvement for his carpal tunnel condition and would not be returning to work. The
Fund further asserted that Employee’s own assessment of his disability “is relevant and
competent testimony to be considered.”

      The Fund additionally set forth six separate facts that it asserted to be undisputed,
which it contended supported both its motion for summary judgment and its objection to
Employee’s motion for partial summary judgment. As support for those statements, the

                                            5
Fund pointed to specific testimony in the deposition of Dr. Dovan for four of those
statements, to specific testimony in the deposition of Dr. Elalayli for one of the
statements, and to specific testimony in Employee’s deposition for the remaining
statement.

        In response to the Fund’s six statements of undisputed facts, Employee essentially
denied all but two of the statements, citing, as support, specific testimony from the
depositions of Drs. Dovan and Elalayli. Employee did, however, admit that Dr. Dovan
testified he received a handwritten note from Employee at a March 2015 visit in which
Employee stated he had “hand symptoms since he was run over by a forklift on July 10,
2012.” Employee also admitted that he “had hand and wrist symptomology following the
2012 trauma.” However, regardless that these two statements of fact were undisputed,
they do not establish, as a matter of law, either Employee’s assertions that he is entitled
to judgment as a matter of law, or the Fund’s assertion that it is entitled to a judgment as
a matter of law.

        The trial judge correctly noted that the parties were essentially requesting the
judge to review and weigh the medical testimony. In reviewing the medical testimony
and considering it in the light most favorable to the nonmoving parties’ assertions, the
trial judge concluded there were many disputed material facts in the testimony of Dr.
Dovan and of Dr. Elalayli. Any determination of causation on this record requires
comparing testimony and assessing credibility, which the trial court must not do at the
summary judgment phase. See Tatham v. Bridgestone Americas Holding, Inc., 473
S.W.3d 734, 752 (Tenn. 2015). As noted above, a trial court “must not weigh the
evidence at the summary judgment stage.” Cruce v. Memmex, Inc., No. W2016-01167-
COA-R3-CV, 2017 Tenn. App. LEXIS 82, at *17-18 (Tenn. Ct. App. Feb. 7, 2017). Our
review likewise leads us to the conclusion we would have to weigh the medical testimony
and assess credibility to determine whether causation for Employee’s bilateral carpal
tunnel condition was established. The fact that both parties accurately refer to portions of
the physicians’ testimony to support their differing theories of causation reflects the very
essence of a disputed issue of material fact.

       Similarly, we would have to weigh the evidence concerning Employee’s
permanent vocational disability and address the credibility of such evidence to determine
whether Employee is 100% permanently vocationally disabled, as he asserts, as a result
of his carpal tunnel injuries and the 2013 lumbar injury. Furthermore, even if
Employee’s assertion that he is permanently totally disabled as a result of his bilateral
carpal tunnel injury and his 2013 work-related lumbar injury is established, it does not
necessarily follow that the Fund would be responsible for any permanent disability
benefits. Like the trial court, we conclude the record contains disputed material facts that
foreclose a resolution of the questions of medical causation or the extent of
Employee's permanent vocational disability at the summary judgment stage.


                                             6
       Finally, the Fund asserts that the trial court lacked subject matter jurisdiction
because Employee’s carpal tunnel injury arises out of a 2012 injury. As addressed above,
whether Employee’s bilateral carpal tunnel injury is causally related to the 2012 work
incident or arises primarily out of Employee’s 2015 work cannot be determined at the
summary judgment stage due to the disputed material facts. Accordingly, we need not
reach the merits of the Fund’s jurisdictional argument at this time.

                                       Conclusion

       For the foregoing reasons, we affirm the trial court’s decision denying the motions
for summary judgment and remand the case.




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                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Donald Rye                                  )                       Docket No. 2017-06-0627
                                            )
v.                                          )                       State File No. 12929-2015
                                            )
Calsonic Kansei North America, Inc., et al. )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Joshua D. Baker, 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 29th day of November, 2018.

 Name                              Certified   First Class   Via   Fax      Via     Sent to:
                                   Mail        Mail          Fax   Number   Email

 Steven Fifield                                                              X      steven@rockylawfirm.com
 John White                                                                  X      jwhite@bobohuntandwhite.com
 Ronald McNutt                                                               X      ronald.mcnutt@tn.gov
 Joshua D. Baker, 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
