                                                                                  FILED
                                                                            September 14,2016

                                                                                 TN COURTOF
                                                                         l\ OR..KERS' CO?!.lPl. S.-\.110
                                                                                    C1AD.l5

                                                                                 Time 10 ·28 All
            TENNESSEE BUREAU OF WORKERS' COMPENSATION
           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                          AT CHATTANOOGA

Donna Ottanio                                 )   Docket No.: 2015-01-0091
           Employee,                         )
v.                                            )   State File No.: 9736 2016
Quality of Life Home Care, LLC, and          )
AmTrust Group,                                )   Judge Audrey A. Headrick
             Employer/Carrier.               )
                                             )

       COMPENSATION ORDER GRANTING MOTION FOR SUMMARY
                          JUDGMENT


        This matter came before the undersigned Workers' Compensation Judge on
August 30, 2016, for hearing on the Motion for Summary Judgment filed by the
employer, Quality of Life Home Care, LLC. Attorney Ellie Boles, counsel for Quality of
Life, appeared. The employee, Donna Ottanio, appeared for the hearing, but she did not
file a response to the motion.

                                    Procedural History

        Ms. Ottanio filed a Petition for Benefit Determination on November 24, 2015,
seeking benefits in relation to a gastrointestinal bleed allegedly related to a work-related
right-knee injury. The parties did not resolve the disputed issues through mediation, and
the mediator filed a Dispute Certification Notice (DCN) on January 25, 2016. The Court
held a Show Cause Hearing on April 20, 2016, due to the failure to file a request for a
hearing within sixty days of the filing of the DCN. After the Court granted Ms. Ottanio
additional time to request a hearing, Ms. Ottanio subsequently filed a Request for
Expedited Hearing, and the Court conducted an evidentiary hearing on May 16, 2016.
Following the hearing, the Court issued an Expedited Hearing Order Denying Requested
Medical Benefits on June 10, 2016, holding Ms. Ottanio did not come forward with
sufficient medical evidence from which the Court could determine she is likely to prevail
on the merits at trial in proving she sustained a compensable right-knee injury. Ms.
Ottanio did not appeal the Court's decision. Quality of Life then filed the instant Motion

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for Summary Judgment on July 26, 2016.

                                  Findings of the Court
        Motions for summary judgment are governed by Tennessee Code Annotated
section 20-16-101 (20 15) 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:

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

              (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).
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). Therefore, in this case, Quality of Life's Motion for Summary
Judgment requires Ms. Ottanio to submit evidence establishing the essential elements of
her workers' compensation claim.

      The Court finds Quality of Life prevails on both procedural and substantive
grounds. Ms. Ottanio failed to file any response to Quality of Life's Motion for
Summary Judgment as required by Rule 56.03 of the Tennessee Rules of Civil Procedure

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(2015) and Rule 4.02 of this Court's Practice and Procedures (2015). Although Ms.
Ottanio appeared at the hearing, she failed to come forward with any evidence that would
"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." !d. Therefore, the Court finds Quality
of Life's motion unopposed.

      Accordingly, this Court grants Quality of Life's Motion for Summary Judgment,
and hereby dismisses Ms. Ottanio's claim with prejudice.

       This Court taxes the court costs to Quality of Life pursuant to Tennessee
Compilation Rules and Regulations Rule 0800-02-21-.07 (2015). Further, Quality of Life
shall prepare and submit a Statistical Data Form for this matter within ten calendar days
of the date of judgment.

       IT IS SO ORDERED.

       ENTERED this the 14th day of September, 2016 .



                                   .JlldgeAUdr' · Headrick
                                   Court of Workers' Compensation Claims


Right to Appeal:

      Tennessee Law allows any party who disagrees with this Compensation Order
Granting Motion for Summary Judgment 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

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      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 shall 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
      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).




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                              CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Compensation Order Granting
 Motion for Summary Judgment was sent to the following recipients by the following
 methods of service on this the 14th day of September, 2016.

Name                    Certified   Via          Via    Service sent to:
                         Mail       Fax         Email
Donna Ottanio,             X                      X     208 Hughes A venue
Self-represented                                        Cleveland TN 3 7312
Employee                                                dottanio@hotmail.com
Fred Baker,                                      X      fbaker@wimberlylawson.com
Attorney
Ellie Boles, Attorney                            X      eputman@wimberlylawson.com
Employer's
Attorneys




                                           enny S urn, Clerk of Court
                                          Court o  orkers' Compensation Claims
                                          WC.CourtClerk@tn.gov




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