           TENNESSEE BUREAU OF WORKERS’ COMPENSATION
          IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                         AT MURFREESBORO

CAROLE WHITE,                                   ) Docket No. 2017-05-0944
        EMPLOYEE,                               )
v.                                              )
                                                )
COMMUNITY CARE OF                               ) State File No. 40374-2017
RUTHERFORD CO.,                                 )
        EMPLOYER,                               )
And                                             )
                                                )
EASTERN ALLIANCE INS. CO.,                      ) Judge Dale Tipps
        CARRIER.                                )




        COMPENSATION ORDER GRANTING SUMMARY JUDGMENT


     This matter came before the Court upon Community Care’s Motion for Summary
Judgment. For the reasons below, the Court finds Community Care is entitled to
summary judgment.

                                  Procedural History

       Ms. White filed a Petition for Benefit Determination seeking medical and
temporary disability benefits. After an expedited hearing on the record, this Court issued
an interlocutory order holding that Ms. White was unlikely to prevail at a hearing on the
merits in establishing that she suffered a mental injury arising primarily out of her
employment.

      Community Care later filed a Motion for Summary Judgment, accompanied by a
Memorandum of Law and a Statement of Undisputed Facts. Ms. White did not file a
response. The Court heard the Motion telephonically on August 30, 2018, with Ms.
White and Nicholas Snider, attorney for Community Care, participating.



                                            1
                                           Facts

       Community Care’s Statement of Undisputed Facts included the following:

   1. “The PBD described how the injury occurred as ‘from working in a hostile work
      environment for so long.’”

   2. “The alleged date of injury is February 2017.         No specific date of injury is
      provided.”

   3. “Employee has offered no evidence of an identifiable stressful, work related event
      that produced a sudden mental stimulus.”

                       Findings of Fact and Conclusions of Law

        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.

        Community Care, as the party who does not bear the burden of proof at trial, must
do one of two things to prevail on its motion for summary judgment: (1) submit
affirmative evidence that negates an essential element of Ms. White’s claim, or (2)
demonstrate that Ms. White’s evidence is insufficient to establish an essential element of
her claim. Tenn. Code Ann. § 20-16-101 (2017); see also Rye v. Women’s Care Ctr. of
Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Community Care is successful
in meeting this burden, Ms. White “may not rest upon the mere allegations or denials of
its pleading.” Id. at 265. Rather, she must respond by producing affidavits, pleadings,
depositions, responses to interrogatories, or admissions that set forth specific facts
showing that there is a genuine issue for trial. Id.; Tenn. R. Civ. P. 56.06. She must do
more than simply show that there is some metaphysical doubt as to the material facts.
Rye, at 265.

       Here, Ms. White filed no response to the Statement of Undisputed Facts. She
attended the hearing to oppose the motion but identified nothing in the record to support
her assertions. While her response did not comply with the rule, Rule 56.06 also states
that if the party opposing the motion does not respond, summary judgment shall be
entered against the adverse party “if appropriate.”

       To determine whether summary judgment is appropriate, the Court looks to
whether there are genuine issues of material fact on causation, an essential element of
Ms. White’s claim. Tennessee courts apply a two-part test in order to determine whether
an injury caused by mental or emotional stimulus is compensable. First, the injury must

                                             2
stem from “an identifiable stressful, work-related event producing a sudden mental
stimulus such as fright, shock, or excessive unexpected anxiety.” Second, “the event
must be extraordinary in comparison to the stress ordinarily experienced by an employee
in the same type of duty.” Creasman v. Waves, Inc., 2018 TN Wrk. Comp. App. Bd.
LEXIS 13, at *7 (Apr. 16, 2018).

       The undisputed facts establish that Ms. White did not identify a specific date of
injury or a stressful, work related event that produced a sudden mental stimulus. Instead,
she contends the injury occurred “from working in a hostile work environment for so
long.” However, gradual employment stress is insufficient to establish a claim for an
injury caused by mental or emotional stimulus. See Gatlin v. Knoxville, 822 S.W.2d 587,
591 (Tenn. 1991). Therefore, based on these undisputed facts, the Court holds that
Community Care has demonstrated Ms. White’s evidence is insufficient to establish an
essential element of her claim.

IT IS, THEREFORE, ORDERED as follows:

   1. Community Care’s Motion for Summary Judgment is granted, and Ms. White’s
      claim against Community Care and its workers’ compensation carrier for the
      requested workers’ compensation benefits is dismissed on the merits with
      prejudice to its refiling.

   2. The filing fee of $150.00 is taxed to Community Care under Tennessee
      Compilation Rules and Regulations 0800-02-21-.07, for which execution may
      issue as necessary.

   3. Absent appeal, this order shall become final thirty days after entry.

      ENTERED this the 7th day of September, 2018.



                                  _____________________________________
                                  Judge Dale Tipps
                                  Court of Workers’ Compensation Claims




                                             3
                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Order Granting Summary
Judgment was sent to the following recipients by the following methods of service on this
the 7th day of September, 2018.

 Name                     Certified Fax        Email    Service sent to:
                          Mail
 Carole White,            X                    X        1209 John Hood Drive
 Employee                                               Rockvale, TN 37153
                                                        sdwhite101@gmail.com
 Nicholas Snider,                              X        nsnider@morganakins.com
 Employer’s Attorney



                                         _____________________________________
                                         Penny Shrum, Clerk of Court
                                         Court of Workers’ Compensation Claims
                                         WC.CourtClerk@tn.gov




                                           4
                                 II
                                  I                                                       'I



                          Compensation Hearing Order Right to Appeal:

     If you disagree with this Compensation Hearing Order, you may appeal to the Workers'
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers'
Compensation Appeals Board, you must:

    1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal," and file
       the form with the Clerk of the Court of Workers' Compensation Claims within thirty
       calendar days of the date the compensation hearing order was filed. When filing the
       Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if
       represented).

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau's
      website or any Bureau office) seeking a waiver ofthe filing fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of lndigency will
      result in dismissal of your appeal.

   3~   You bear the responsibility of ensuring a complete record on appeal. You may request
        from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court
        reporter must prepare a transcript and file it with the court clerk within fifteen calendar
        days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
        evidence prepared jointly by both parties within fifteen calendar days of the filing of the
        Notice of Appeal. The statement of the evidence must convey a complete and accurate
        account of the hearing. The Workers' Compensation Judge must approve the statement
        of the evidence before -the record is submitted to the Appeals Board. If the Appeals
        Board is called upon to review testimony or other proof concerning factual matters, the
        absence of a transcript or statement of the evidence can be a significant obstacle to
        meaningful appellate review.

   4. After the Workers' Compensation Judge approves the record and the court clerk transmits
      it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
      party has fifteen calendar days after the date of that notice to submit a brief to the
      Appeals Board. See the Practices and Procedures of the Workers' Compensation
      Appeals Board.

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
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, the trial court's
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann.§ 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
     Filed Date Stamp Here                 COMPENSATION HEARING NOTICE OF APPEAL                       Docket#: ___________________
                                                   Tennessee Division of Workers' Compensation
                                                       www.tn .gov/labor-wfd/wcomp.shtml               State File #/YR: - - - - - - - - - - - - -
                                                              wc.courtclerk@tn .gov
                                                                 1-800-332-2667                        RFA#: ____________________

                                                                                                       Date of Injury: - - ------------
                                                                                                       SSN: _____________________




                      Employee




                      Employer and Carrier



          Notice
          Notice is given that ---------------------------------------------------
                                  [List name(s) of all appealing party(ies) on separate sheet if necessary]

          appeals the order(s) of the Court of Workers' Compensation Claims at _____

            ---------------------- - -- - - - t o the Workers' Compensation Appeals Board .
            [List the date(s) the order(s) was filed in the court clerk's office]

          Judge_______________________________________________


          Statement of the Issues
          Provide a short and plain statement of the issues on appeal or basis for relief on appeal :




          List of Parties

          Appellant (Requesting Party): _______________ .At Hearing: 0Employer0Employee
          Address: ________ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___

          Party's Phone: ________________________________ Email :_____________________

          Attorney's Name: ________________________________________ BPR#: ________ _

          Attorney's Address:, _______________________________________                                   Phone :
          Attorney's City, State & Zip code: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ __ _ _ _ __
          Attorney's Email: _______________________________________________________

                                         • Attach an additional sheet for each additional Appellant*
LB-1103   rev. 4/15                                         Page 1 of 2                                                               RDA 11082
Employee Name: -- - - - - - - - - - -            SF#: _ _ _ _ _ _ _ _ _ _ DOl: _          _ _ _ __




Appellee(s)
Appellee (Opposing Party): ,_ _ _ _ _ _ __ At Hearing:OEmployer[]Employee



Appellee's Address:----- - - - - - - - - - - - - - - - -- - - -- - - - - -
Appellee's Phone:_ _ _ _ _ __ _ __ _ _ _ _ _ Email:_ _ _ _ __ _ __ _ _ _ _ __
Attorney's Name: _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ BPR#: _ _ _ _ _ _ __
Attorney's Address: _ __ _ _ _ _ _ _ _ _ _ _ _ _ __ __ _ Phone:

Attorney's City, State & Zip code: - - - -- - - -- - - - -- - - -- - - - - - - -
Attorney's Email:_ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ __

                       * Attach an additional sheet for each additional Appellee *


CERTIFICATE OF SERVICE

I,                                             certify that I have forwarded a true and exact copy of this
Compensation Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) ofthe Tennessee Rules of
Board of Workers' Compensation Appeals on this the              day o f _ , 20_.



[Signature of appellant or attorney for appellant]


Attention: This form should only be used when filing an appeal to the Workers' Compensation Appeals
Board. If you wish to appeal a case to the Tennessee Supreme Court, please utilize the form provided by
the Court which can be found on their website at the following address:
 http://www.tncourts.gov/sites/defau lt/files/docs/notice of appeal - civil or criminal.pdf


LB-1103   rev. 4/15                             Page 2 of 2                                      RDA 11082
II                                                                                                                      I.
 '                                                                                                                       I




                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                      800-332-2667

                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ __ _ _ _ _ __                       2. Address: - - - - - - - -- - - --

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - -- - - -- -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -

             - - - - - - - - - - - - - -- --                  Relationship: - - - - - -- - - -- - -

             - - - - - - - - - - -- - -- - - Relationship: - - - -- - -- - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - -- - - -- -

     6. I am employed by: - - - - - - - - - - -- - - -- - - - - - -- - - -- - -

             My employer's address is: - - - - -- - - - -- - - - - - -- - -- - - - -

             My employer's phone number is: - - - -- - - - -- - - - - - -- - - -- - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ __

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are:     ! ~                                                      li
                                                                                  I
                          '

        Rent/House Payment $              per month     Med icai/Dental $ _ _ ___ per month

        Groceries       $           per month           Telephone       $ _ __ _ _ per month
        Electricity     $           per month           School Supplies $ _ _ _ _ _ per month
        Water           $           per month           Clothing        $ _ _ _ _ _ per month
        Gas             $           per month           Child Care      $ _ _ _ _ _ per month
        Transportation $            per month           Child Support   $ _ _ _ _ _ per month
        Car             $            per month
        Other           $           per month (describe:


10. Assets:

        Automobile              $ _ _ _ __
                                                        (FMV) - - - - - - - - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ __
                                                        (FMV) - - - - - - - - - -
        Other                   $ _ _ _ __              Describe:_ _ _ _ __ _ __ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

____ dayof _____________________ , 20_ __




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ _ __




LB-1108 (REV 11/15)                                                                          RDA 11082
