                                                                                    FILED
                                                                                  Jun 16, 2020
                                                                                  09:21 AM(CT)
                                                                                TENNESSEE COURT OF
                                                                               WORKERS' COMPENSATION
                                                                                      CLAIMS




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

 ROMA BLANKENSHIP,                          )     Docket No.: 2019-02-0171
          Employee,                         )
 v.                                         )     State File No.: 21230-2019
 BALLAD HEALTH,                             )
          Self-Insured Employer.            )     Judge: Brian K. Addington


                        COMPENSATION HEARING ORDER
                        GRANTING SUMMARY JUDGMENT


       This case came before the Court on June 11, 2020, on Ballad Health’s Motion for
Summary Judgment. Ballad contended Ms. Blankenship could not prove that her injury
arose primarily from her work and asked that the Court dismiss her claim. For the
following reasons, the Court grants summary judgment and dismisses the case.

                                        History

        Ms. Blankenship worked as a CNA for Ballad. She alleged a December 2018 injury
to her legs due to excessive walking. She sought treatment with Dr. William Brashear, and
after she reported her injury, with panel physician Michael Anders. Neither physician
primarily related her injury to her work. This Court twice found her evidence insufficient
to award benefits following expedited hearings.

                                          Facts

      Ballad filed a Statement of Undisputed Material Facts with citations to the record
under Tennessee Rules of Civil Procedure 56.03. The relevant undisputed facts were:

      1. After obtaining and considering Employee’s history and examining her
         on February 5, 2019, Dr. Anders determined as follows: he “cannot
         attribute 51% of her condition to her work activity”; under the definition
         of work injury in Tennessee, “the condition is considered non-work
         related”; Employee’s “ongoing symptoms do not meet this definition of

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          ‘an injury by accident, a mental injury, or occupational disease including
          diseases of the course and scope of employment’”; and Employee’s
          employment “did not contribute more than 51% in causing her current
          symptoms.”

       2. After receiving Dr. Anders’s opinion on medical causation, Employee
          saw Dr. William Brashear, of Appalachian Orthopedic Associates, for
          treatment. At Employee’s March 26, 2019 appointment with Dr.
          Brashear, he diagnosed Employee with bilateral patellofemoral
          osteoarthritis and made this observation: “At this time, I [Dr. Brashear]
          do feel this is an exacerbation of an underlying problem; however, again
          I have discussed with her not all people have arthritic manifestations even
          though they have radiographic findings of it.”

       Ms. Blankenship did not file a response to the Statement of Undisputed Facts and
did not appear for the in-person hearing on the motion. The Court and Ballad’s counsel
waited for over ten minutes for her to appear.

       Ballad argued that no physician provided a causation opinion that Ms.
Blankenship’s injury arose primarily from her work. Dr. Anders, the authorized physician,
concluded her condition was not primarily related to her work. Her own physician, Dr.
Brashear, merely found an exacerbation without giving an opinion of whether her condition
arose primarily from her work. Thus, the undisputed facts establish that Ms. Blankenship
has no physician opinion that primarily relates her condition to her work, and the Court
should dismiss her claim for benefits with prejudice.

                                       Legal Analysis

       Tennessee Rules of Civil Procedure 56 provides specific filing requirements for
both parties in summary judgment cases. Specifically, as the moving party, Ballad is
required to file a statement of undisputed material facts with citations to the record. It did
so. As the nonmoving party, Ms. Blankenship is required to respond to Ballad’s statement
of undisputed facts, stating her agreement with them or demonstrating how they are
disputed. Tenn. R. Civ. P. 56.03. She did not do so. For this reason, the Court considers
Ballad’s motion unopposed and turns to whether summary judgment is appropriate.

        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. To prevail, Ballad must do one of two things:
(1) submit affirmative evidence that negates an essential element of Ms. Blankenship’s
claim for permanent disability benefits, or (2) demonstrate that her evidence is insufficient


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to establish entitlement to those benefits. Tenn. Code Ann. § 20-16-101 (2019); see also
Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015).

      Based on the undisputed facts, the Court holds that Ballad submitted affirmative
evidence that Ms. Blankenship’s condition did not arise primarily from her employment.
The only medical opinions are those of Drs. Brashear and Anders, neither of which
concluded her condition primarily arose from her work. Having carefully reviewed and
considered the evidence in the light most favorable to Ms. Blankenship, the Court grants
Ballad’s summary judgment motion.

      IT IS, THEREFORE, ORDERED AS FOLLOWS:

   1. Ms. Blankenship’s claim is dismissed on the merits with prejudice to its refiling.

   2. The filing fee of $150.00 is taxed to Ballad under Tennessee Compilation Rules and
      Regulations 0800-02-21-.06 (August 2019), for which execution may issue as
      necessary.

   3. Ballad shall prepare and submit the SD2 for this case within ten days of the date of
      judgment.

   4. Absent an appeal, this order becomes final in thirty days.

      ENTERED June 16, 2020.



                                         _/S/ Brian K. Addington________________
                                         BRIAN K. ADDINGTON, JUDGE
                                         Court of Workers’ Compensation Claims




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                         CERTIFICATE OF SERVICE

    I certify a copy of this Order was sent as indicated on June 16, 2020.

        Name              Certified    Fax     Email            Service sent to:
                           Mail
Roma Blankenship,                                X      140 Painter Rd.
Employee                                                Fall Branch, TN 37656
                                                        catherine62kylie@gmail.com
Michael Forrester,                               X      mforrester@hsdlaw.com
Employer’s Attorney                                     amcknight@hsdlaw.com




                                       ______________________________________
                                       PENNY SHRUM, COURT CLERK
                                       Court of Workers’ Compensation Claims
                                       wc.courtclerk@tn.gov




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