                                                                                                 FILED
                                                                                               Sep 04, 2018
                                                                                              03:01 PM(ET)
                                                                                           TENNESSEE COURT OF
                                                                                          WORKERS' COMPENSATION
                                                                                                 CLAIMS




             TENNESSEE BUREAU OF WORKERS' COMPENSATION
            IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                           AT CHATTANOOGA

David Ballard,                                     )   Docket No.: 2016-01-0186
            Employee,                              )
v.                                                 )
Brenntag Mid-South, Inc.,                          )    State File No.: 95768-2015
           Employer,                               )
And                                                )
XL Insurance America, Inc.,                        )   Judge Audrey A. Headrick
           Carrier.                                )
                                                   )

                   COMPENSATION HEARING ORDER
          GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT


       This matter came before the Court on August 16, 20 18, for hearing on the Motion
for Prutial Summaty Judgment filed by Brenntag Mid-South, Inc. (Brenntag). 1

                                         Procedural History

        This Comt approved a settlement of Mr. Ballard's workers' compensation claim in
November 2017. Later, Mr. Ballard filed a Petition for Benefit Detetmination for
increased benefits. Brenntag filed the present motion for partial summruy judgment
assetting that as a matter of law he is not entitled to increased benefits. The Comt
summarizes the factual background to this motion as follows.

        Mr. Ballard worked as a district manager for Brenntag from April 15, 1996, until
November 16, 2015, eaming approximately $80,000 per year. Mr. Ballard sustained a
work injmy on October 27. Before his injmy, Mr. Ballard simultaneously worked as an
operations manager for DUDA Energy, LLC (DUDA), a customer and/or supplier for
Brenntag. His employment with DUDA began on August 3. Mr. Ballard admitted he did
not disclose his dual employment to Brenntag until after his work injury. During the
three months Mr. Ballard worked for DUDA, he eamed approximately $27,000. On
1
  The Court did not conduct an in-person evidentiary hearing in this case. Instead, the Court gleaned the
facts from Brenntag ·s statement of undisputed facts, pleadings, and exhibits .
November 4, Mr. Ballard signed an Acknowledgement for Termination of Employment
with DUDA. 2

      Brenntag terminated Mr. Ballard on November 16 after management discovered
his dual employment. It stated the dual employment violated its Code of Business
Conduct and Ethics (COC) and Rules of Conduct.

      During Mr. Ballard's employment, Brenntag maintained both an Employee
Handbook and the COC. He signed an Acknowledgement regarding Brenntag's COC on
January 29, 2014.

      Brenntag's COC specifically addresses conflicts of interest. The section on conflicts
of interest states: "Conflicts of interest or the mere appearance of such a conflict must be
avoided. Conflicts of interest arise if employees pursue personal activities or interests to
the disadvantage of Brenntag's interests." The COC further provides that "[e]mployees
may not accept employment with or provide services to companies competing or doing
business with Brenntag or engage in any other kind of competing work or activity."

       Brenntag's COC also states that no employees "with confidential information
about Brenntag, its suppliers, customers or other business partners may disclose such
information to any third party or use such infmmation for his or her personal benefit
while employed with Brenntag." This disclosure is only permissible under certain
circumstances: if disclosure is made with a valid and enforceable confidentiality
agreement; with Brenntag's prior written approval; with prior written approval of a third-
patty; or, when disclosure is mandated by law and prior notice is given, if possible, to any
affected third-patty.

       Brenntag filed this partial summaty judgment motion on May 30 along with a
statement of undisputed facts, a memorandum of law, the Affidavit of Linda Crouse, and
exhibits. Mr. Ballard filed an Opposition to Defendant's Motion for Partial Summaty
Judgment with no supporting affidavits. This Comt entered an order on July 5 continuing
the motion hearing "to permit affidavits to be obtained or depositions to be taken or
discovery to be had."3 T.R.C.P. 56.07.

        Brenntag argued Mr. Ballard is not entitled to additional increased permanent
partial disability benefits under Tennessee Code Annotated section 50-6-207(3)(D)(ii)
(20 17) due to his termination for misconduct. It also argued that he would still be
employed at Brenntag but for his termination due to his dual employment with a

2
  The Acknowledgement indicates Mr. Duda restructured his company on October 30 and eliminated the
operations manager position.
3
  Despite the continuance, Mr. Ballard opted not to obtain opposing affidavits . At the motion hearing,
Mr. Ballard confirmed he did not intend to file any other documents.

                                                  2
competitor. Fmther, it argued summmy judgment is appropriate since Mr. Ballard failed
to file any sworn affidavits or depositions.

      Mr. Ballard argued Brenntag wrongfully terminated him. He made several
arguments regarding Brenntag's handbook and COC, which he asserted did not prevent
him from working a second job. Mr. Ballard argued Brenntag treated him differently
from other employees with alleged conflicts of interest. Further, he argued Brenntag
made misleading statements in its pleadings.

                                     Law and Analysis

        Under Tennessee Rule of Civil Procedure 56.04, summmy judgment is appropriate
if there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. To meet this standard, Brenntag must either: (1) submit
affitmative evidence that negates an essential element of Mr. Ballm·d's claim, or (2)
demonstrate that his evidence is insufficient to establish an essential element of his claim.
Tenn. Code Ann. § 20-16-101; see also Rye v. Women's Care Ctr. ofMemphis, MPLLC,
477 S.W.3d 235, 264 (Tenn. 2015). If Brenntag carries this burden, then Mr. Ballm·d
"may not rest upon the mere allegations or denials of [his] pleading" but must respond by
producing facts showing a genuine issue for trial. ld.; Tenn. R. Civ. P. 56.06. In other
words, Mr. Ballard's response "must do more than simply show that there is some
metaphysical doubt as to the material facts." Payne v. D & D Elec., 2017 Tenn. LEXIS
215, at *8-9 (Tenn. 2017). In reaching its decision, the Comt must focus on evidence Mr.
Ballm·d presented at the summary judgment stage, "not on hypothetical evidence that
theoretically could be adduced ... at a future trial." Rye at 265. The Court holds that
Brenntag met its burden of demonstrating Mr. Ballard cannot establish an essential
element of his case-that he is entitled to increased disability benefits.
       Since Brenntag met its burden, the Comt must consider whether Mr. Ballm·d
produced facts showing a genuine issue for trial. He failed to respond to the motion as
required by Rule 56. Although Mr. Ballard filed an Opposition to Defendant's Motion
for Pmtial Summaty Judgment with exhibits, he failed to file any sworn affidavits and/or
depositions showing a genuine issue for trial. While his failure to respond does not
mandate entry of summary judgment, it does prevent him from disputing any of the facts
assetted in the statement of material facts. See United Sen'. lnds., Inc. v. Sloan, 1988
Tenn. App. LEXIS 592, *4 (Tenn. Ct. App. Sept. 28, 1988) ("An adverse patty's failure
to respond to a motion for summary judgment does not relieve the moving party of the
burden of establishing an entitlement to judgment as a matter of law; rather, an absence
of response only precludes factual disputes.").
       Although Mr. Ballm·d represents himself in this claim, he still "must comply with
the same standards to which lawyers must adhere." Burnette v. K-Mart Corp., 2015 TN
Wrk. Comp. App. Bd. LEXIS 2, at *6 (Jan. 20, 2015). Fmther, courts must "be mindful
of the boundmy between faimess to a pro se litigant and unfairness to the pro se litigant's
                                             3
adversary. Thus, the comts must not excuse pro se litigants from complying with the
same substantive and procedural rules that represented parties al'e expected to observe."
Id. While Mr. Ballard claimed he had "suppmting documentation" to demonstrate
Brenntag terminated without proper cause, he presented nothing to suppm1 this assettion.
Accordingly, the Court accepts the facts provided by Brenntag and holds that Mr. Ballard
failed to present facts sufficient to establish a genuine issue for trial.

        The Comt notes it provided Mr. Ballard with additional time to obtain evidence
essential to justify his opposition. It instructed him about his right to hire an attorney and
suggested that he consult with the Ombudsman Program. The Court also urged Mr.
Ballard to become familiar with the procedural and evidentiary rules of the Court.
However, at the motion hearing, he stated he did not intend to submit any affidavits
unless he prevailed. Further, Mr. Ballard's statements made during oral argument and
exhibits filed without supporting affidavits are insufficient to establish a factual dispute.
Because he failed to produce facts showing a genuine issue of material fact for trial, he
failed to carry his burden. Accordingly, the Court grants Brenntag's Motion.


IT IS, THEREFORE, ORDERED AS FOLLOWS:
   1. The Court grants Brenntag's motion for partial summruy judgment and dismisses
      Mr. Ballru·d's claim for increased benefits with prejudice to its refiling. This
      ruling does not end his entitlement to ongoing medical benefits for the work
      InJUlY.


   2. Absent an appeal, this order shall become final in thit1y days.

   3. The Com1 assesses the $150.00 filing fee against Brenntag under Tennessee
      Compilation Rules and Regulations 0800-02-21-.07, for which execution may
      Issue as necessruy.

   4. Brenntag shall pay the filing fee within five business days of the order becoming
      final.

   5. Brenntag shall file form SD-1 within ten business days of this order becoming
      final.




                                              4
   It is so ORDERED.

   ENTERED September 4, 2018.




                                          Workers' Compensation Judge


                             CERTIFICATE OF SERVICE

       I hereby certify that a tiue and correct copy of this Order was sent to the following
recipients by the following methods of service on September 4, 2018.

 Name                      Ce1tified   First        Via    Service sent to:
                            Mail       Class       Email
                                       Mail
 David F. Ballard,             X                    X      224 Hickory Ridge Trail
 Employee                                                  Ringgold, GA 30736
                                                           DavidBalJard@catt.corn

 Gerry Siciliano,                                   X      gms@l uthera11derson. corn
 Employer's Attomey




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