             IN THE SUPREME COURT OF TENNESSEE
       SPECIAL WORKERS’ COMPENSATION APPEALS PANEL
                                  AT KNOXVILLE
                              February 24, 2020 Session

   POTTER SOUTH EAST, LLC ET AL. V. BRIAN BOWLING V. ABIGAIL
HUDGENS, DIRECTOR OF THE DIVISION OF WORKERS’ COMPENSATION,
     TENNESSEE DEPARTMENT OF LABOR AND WORKFORCE
             DEVELOPMENT, SECOND INJURY FUND

                  Appeal from the Circuit Court for Knox County
                      No. 2-314-18 William T. Ailor, Judge
                     ___________________________________

  No. E2019-01009-SC-R3-WC-MAILED-APRIL 3, 2020 / FILED – JUNE 2, 2020
                   ___________________________________


        Brian Bowling (“Employee”) was employed as a laborer for Potter South East
(“Employer”). During his employment with Employer, he was constantly exposed to loud
noise from jackhammers, sledgehammers, power drivers and heavy equipment. Employee
initially developed hearing loss in 2010 or 2011. Employer filed a motion for summary
judgment raising the one-year statute of limitations. The motion was supported by the
evaluating physician’s C-32 report. The trial court granted Employer’s motion and entered
an order dismissing Employee’s claim. Employee has appealed from that order. The
appeal has been referred to the Special Workers’ Compensation Appeals Panel for a
hearing and a report of findings of fact and conclusions of law pursuant to Tennessee
Supreme Court Rule 51. We affirm the judgment of the trial court.

   Tenn. Code Ann. § 50-6-225(e) (2014) (applicable to injuries occurring prior to
     July 1, 2014) Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT E. LEE DAVIES, SR.J., delivered the opinion of the court, in which SHARON G. LEE,
J., and KRISTI M. DAVIS, SP.J., joined.

Ameesh A. Kherani, Knoxville, Tennessee, for the appellant, Brian Bowling.

David J. Otten, Knoxville, Tennessee, and Fredrick R. Baker, Cookeville, Tennessee, for
the appellees, Potter South East, LLC and Technology Insurance Company.

Herbert H. Slatery III, Attorney General and Reporter, and Matt D. Cloutier, Assistant
Attorney General, for the appellee, Tennessee Department of Labor and Workforce
Development, Second Injury Fund.
                                       OPINION

                                Procedural Background

        This is an appeal from the Circuit Court of Knox County by Employee from the trial
court’s granting of a motion for summary judgment by order entered May 8, 2019.
Employer filed the complaint on September 5, 2018. Employee filed his answer on
September 14, 2018, and added the Tennessee Second Injury Fund as an additional party.
The undisputed facts are contained in the C-32 form signed by Dr. C.M. Salekin who was
the evaluating physician for Employee. Counsel for Employee filed the medical report of
Dr. Salekin on September 14, 2018. On November 16, 2018, Employer filed its motion
for and memorandum of law in support of summary judgment in which Employer alleged
the following undisputed facts:

      • Bowling was first aware of his alleged hearing loss at least as early as
        2011, according to his self-report to Dr. C.M. Salekin.
      • By September 4, 2012, Bowling had worked his entire life in [a] noisy
        environment.
      • Bowling’s last date of employment was September 4, 2012.
      • Bowling first gave notice of his alleged hearing loss when he filed his
        request for [a] Benefit Review Conference on January 9, 2018.

Dr. Salekin’s medical report contains the following history from Employee when he was
seen on January 21, 2018:

      History of Present Illness:
      Mr. Bowling is a [forty-year-old] gentleman with history of no significant
      medical problem, other than surgeries on the back and right arm that
      developed hearing loss initially about [seven to eight years] ago. He also
      developed constant ringing in both ears at about the same time. He states all
      his life he worked in a noisy environment and particularly his last [three to
      four years] of employment was in construction where he was constantly
      exposed to loud noise from jackhammers, sledgehammers, power drivers and
      heavy equipment operation for his entire shift of work. His hearing problem
      was initially noticed by family members when he was found to be loud on
      the phone, asked the same question more than once during social
      conversations and raised the volume of TV which was annoying for other
      family members. On request of family members[,] he had a hearing test done
      on 10-9-17 which showed hearing loss in high frequencies, suggestive of
      occupational hearing loss. At present he does not use hearing aids.


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       Occupational History:
       He has been off work since September 4, 2012[,] and prior to that he worked
       in construction for about [three to four years] and prior to that he worked as
       a welder for about [fifteen years]. He was exposed to chronic loud noise at
       work from jackhammers, power drives, heavy equipment operation, and
       sledgehammers for the entire shift of his work. He was also exposed to loud
       noise while working as a welder.

Neither party submitted any other proof pursuant to Rule 56 of the Tennessee Rules of
Civil Procedure.

       The trial court heard the motion for summary judgment and considered the
information contained in the C-32 form. In its ruling granting the motion, the trial court
found that the statute of limitations was one year from the date of last employment and that
pursuant to the “discovery rule,” the statute of limitations began to run when Employee
knew or reasonably should have known that his injury was caused by his employment by
the time he terminated his employment on September 4, 2012. Accordingly, the trial court
found that the statute of limitations expired on September 4, 2013, and barred Employee’s
cause of action.

                                           Analysis

       The sole issue on appeal is whether the trial court erred in granting summary
judgment based upon the statute of limitations. On the appeal of a motion for summary
judgment, we view the facts in favor of the non-moving party. Summary judgment is
appropriate when “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; Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250
(Tenn. 2015), cert. denied, 136 S. Ct. 2452 (2016).

       We review a trial court’s ruling on a motion for summary judgment de novo, without
a presumption of correctness. Rye, 477 S.W.3d at 250 (citations omitted). The moving
party may satisfy its burden of production either 1) by affirmatively negating an essential
element of the non-moving party’s claim or 2) by demonstrating that the non-moving
party’s evidence at the summary judgment stage is insufficient to establish the non-moving
party’s claim or defense. Id. at 264.

        When a motion for summary judgment is properly supported, the non-moving party,
in order to survive summary judgment, may not rest upon the mere allegations or denials
of its pleading but must respond using affidavits or one of the other means provided in Rule
56 to set forth specific facts showing that there is a genuine issue for trial. Id. at 265. “The
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non-moving 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 non-moving party.” Id. “[S]ummary
judgment should be granted if the non-moving party’s evidence at the summary judgment
stage is insufficient to establish the existence of a genuine issue of material fact for trial.”
Id. (citing Tenn. R. Civ. P. 56.04, 56.06).

        With gradually occurring injuries such as hearing loss, the notice and calculation of
the statute of limitations are more difficult to ascertain as these types of injuries can occur
over a lengthy period of time and are rarely attributable to a single incident. See Hill v.
Whirlpool Corp., No. M2011-01291-WC-R3-WC, 2012 WL 1655768, at *4 (Tenn.
Workers’ Comp. Panel May 10, 2012); Lawson v. Lear Seating Corp., 944 S.W.2d 340,
341 (Tenn. 1997). In these types of cases, the Tennessee Supreme Court has applied the
discovery rule which provides that “[t]he statute of limitations commences to run ‘at that
time when the employee, by a reasonable exercise of diligence and care, would have
discovered that a compensable injury had been sustained.’” Gerdau Ameristeel, Inc. v.
Ratliff, 368 S.W.3d 503, 509 (Tenn. 2012) (quoting Bellar v. Baptist Hosp., Inc., 559
S.W.2d 788, 789–90 (Tenn. 1978)). In fact, our courts have recognized that “an employee
who sustains a gradually-occurring injury may be unsure of the cause of his or her injury,
and therefore relieved of the notice requirement, until the diagnosis is confirmed by a
physician.” Banks v. United Parcel Serv., Inc., 170 S.W.3d 556, 561 (Tenn. 2005)
(citations omitted).

        The Tennessee Supreme Court has also found that in the case of a gradually
occurring injury, the last-day-worked rule is used to help identify a date on which the injury
occurred. Bldg. Materials Corp. v. Britt, 211 S.W.3d 706, 711 (Tenn. 2007) (citing
Lawson, 944 S.W.2d at 341–42; Barker v. Home-Crest Corp., 805 S.W.2d 373, 375 (Tenn.
1991)). The policy behind the last-day-worked rule is to prevent “workers with gradually
occurring injuries from losing the opportunity to bring workers’ compensation claims due
to the running of the statute of limitations.” Id. We agree with the dicta in Estate of Jenkins
v. Goodyear Tire & Rubber Co., No. W2014-02303-SC-R3-WC, 2016 WL 1020832, at *3
n.1 (Tenn. Workers’ Comp. Panel Mar. 15, 2016) that the last-day-worked rule “is remedial
in effect and was designed to save claims, not to bar them.” Therefore, it is entirely possible
under a given set of facts that an employee who filed a claim more than one year after his
last day worked would not be barred by the last-day-worked rule if the employee, by the
exercise of diligence and care, was unable to discover that a compensable injury had been
sustained until sometime later.

       Unfortunately, in this case, as in Estate of Jenkins, there is no evidence in the record
from Employee himself. The only proof of what Employee knew is in the medical report
of Dr. Salekin. The report shows Employee, who was forty years old at the time of his
exam, had experienced hearing loss in 2010 or 2011, had all his life worked in a noisy
environment, and particularly in his last three to four years of employment was exposed to
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jackhammers, sledgehammers, power drivers and heavy equipment operation for his entire
shift of work.

        Tennessee Code Annotated section 50-6-235(c)(1) provides that “any party may
introduce direct testimony from a physician through a written medical report on a form
established by the commissioner.” Tenn. Code Ann. § 50-6-235(c)(1) (2014) (applicable
to injuries occurring prior to July 1, 2014). The statute goes on to provide that the medical
report of the treating or examining physician shall be admissible at any stage of the
workers’ compensation claim in lieu of a deposition. Id. § 50-6-235 (c)(2). Employee filed
his response to Employer’s statement of undisputed facts. In his response, Employee
contended he was not aware that he had an occupational hearing loss related to his
employment with Potter South East until he underwent a hearing test on October 9, 2017.
However, missing from the additional “facts” in Employee’s response is any specific
citation to the record supporting his contention that such facts are in dispute. See Tenn. R.
Civ. P. 56.03. If the non-moving party is attempting to demonstrate a genuine issue for
trial, he must use an affidavit, or as otherwise provided in the rule, to set forth facts that
would be admissible in evidence. Unfortunately for Employee, there is no affidavit,
interrogatory answer, or deposition in the record to support his contention that he was not
aware until October 9, 2017, that his hearing loss was related to his employment. We think
the undisputed proof set forth in the C-32 form is sufficient to establish an undisputed
inference that Employee knew he had a work-related injury as far back as 2010 when he
was in his early thirties. There is no countervailing proof. Given these facts, a reasonably
prudent person should have sought a doctor’s opinion long before October 9, 2017, and
therefore the one-year statute of limitations bars Employee’s claim.

                                        Conclusion

      The judgment of the trial court is affirmed. Costs are taxed to Brian Bowling, for
which execution may issue if necessary.




                                           ROBERT E. LEE DAVIES, SR. JUDGE




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