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Time,IO:l:SAll TENNESSEE BUREAU OFWORKERS' COMPENSATION INTHE COURTOFWORKERS' COMPENSATIONCLAIMS ATNASHVILLE David Raine,Employee, 

### v. White Castle, Employer, And TrumbullInsurance Company, Carrier. DocketNo.: 2015-06-0986 StateFile No.: 48420-2015 Judge Kenneth M. Switzer

COMPENSATION ORDERGRANTING MOTIONFORSUMMARYJUDGMENT

This matter came before the Court on December 6, 2016, upon the Motion for Summary Judgment filed by White Castle. In determining this motion, the Court considered all relevant filings and holds for the reasons set forth below that White Castle is entitled to summaryjudgment as a matter of law. 1 Therefore, Mr. Raine's claim is dismissed withprejudiceto its refiling. History ofClaim This Court and the Tennessee Workers' Compensation Appeals Board drafted

. previous orders setting forth the facts, which factual summaries are incorporated by reference into this Order. The Court recaps only the facts relative to whether summary judgmentis appropriate.
Mr. Raine allegedly sustained workplace injuries on two occasions: He alleged hurting his left·shoulder while throwing a trash bag into a dumpster and later injuring his right knee by hitting it on apallet. The dates ofthese incidents

- ofcentral importance to the determination ofthis matter

- are unclear. Mr. Raine listed the date ofinjury on his Petition for Benefit Determination (PBD) as "August 2014." However, he told a claims adjuster in a recorded statement he injured his shoulder in "late July or early August,"

1 The Court attached a listing ofthe technical record as an appendix, which documents it considered to reach its determinations. 1and the knee injury occurred "aroundthat same time." Inhis two separate affidavits, Mr. Raine listed the dates ofinjury in the caption as "07/01/2014 && [sic] 08/2014." In the March 2016 affidavit, he statedthe shoulder injury occurred "sometime in July orAugust 2014," and the knee injury "occurred sometime later on a different occasion." Further, in his deposition testimony, when asked ifhe knew the date ofthe shoulder injury, Mr. Raine responded, "The exact date, no, but Ijust - I know the approximate time, month and time it happened." As for the knee injury, hetestified it happened sometime afterthe shoulder injury, on a Tuesday evening, before he sought medical treatment on September 24, 2014.
Mr. Raine soughttreatmentwith avariety ofproviders for his injuries, culminating with shoulder surgery inMay 2015. He testified that he considered for the first time that workers' compensation might cover his alleged work-related injuries while treating with the surgeon. Prior to that point, he generally did not know anything about workers' compensation.
Mr. Raine gave written notice of the accident in a June 3, 2015 memo to his manager, stating that he sustained the shoulder injury "[s]ometime in July or August of last year (2014)," and, "not long after that, I hit the inside ofmy right knee against the woodenpallet[.]" White Castle denied the claim. Mr. Raine filed his PBD on August 19, 2015.
At Mr. Raine's request, this Court conducted a review ofthe file and denied the relief sought. See generally Raine v. White Castle, et al. No. 2015-06-0954, 2015-06- 0955, 2016 TN Ct. Wrk. Comp. Cl. LEXIS _,(Tenn. Ct. Workers' Comp. Cl. Sept. 2, 2016). The Court reasoned that Mr. Raine "repeatedly was unable to provide dates and times with specificity" regarding when the alleged work-related incidents took place. Thus, he failed to satisfy his burden to show that his injuries occurred in the course of employment, as required by Tennessee Code Annotated section 50-6-102(14)(A) (2015). The Court further found that White Castle did not pay benefits; Mr. Raine sustained his injuries sometime in late July or early August 2014; and he filed his PBD on August 19, 2015. Therefore, he failed to file a PBD within one year after the alleged accidents resulting in injury, barring his right to compensation under Tennessee Code Annotated section 50-6-203(b)(l) (2015).
Mr. Raine appealed. The Tennessee Workers Compensation Appeals Board affirmed this Court's findings offact and conclusions oflaw in a memorandum opinion. Specifically, the Appeals Board wrote it had "no difficulty finding the trial court's determinations are supported by a preponderance of the evidence." Raine v. White Castle, et al., No. 2015-06-0954, 2015-06-0955, 2016 TN Wrk. Comp. App. Bd. LEXIS 32, at *4-5 (Tenn. Workers' Comp. App. Bd. Oct. 14, 2016).

2White Castle filed its Motion for Summary Judgment, a Statement ofUndisputed Material Facts, a Memorandum ofFacts and Law in Support ofthe Employer's Motion for Summary Judgment, and Exhibits. (T.R. 1-4.) White Castle also filed and served a copy ofRule 56 with the moving papers, in accordance with the Court's Practices and Procedures, to assist Mr. Raine, who is self-represented. (T.R. 5.) Mr. Raine failed to file aResponseto the SummaryJudgmentMotion and supporting materials. Legal Principles and Analysis Motions for summary judgment are governed by Tennessee Code Annotated section 20-16-101 (2016) and Tennessee Rule ofCivil Procedure 56. Rule 56.03 requires that a motion for summaryjudgment "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." Rule 56.03 further requires any party opposing the motion for summaryjudgment must, not later than five days before the hearing, serve and file a response to each fact set forth by the movant, and that such response shall be filed with the papers in opposition to the motion for summary judgment. The nonmoving party must "demonstrate the existence ofspecific facts in the record which could lead a rational trier offact to find in favor ofthe nonmoving party." Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 265 (Tenn. 2015). Rule 56.06 states: When a motion for summaryjudgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but his or her response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. 

### If the adversepartydoes not so respond, summaryjudgment, 

### if appropriate, shall be enteredagainst the adverseparty. (Emphasis added). The Court of Appeals affirmed a trial court's grant of summary judgment where the non-moving party failed to file a response. Williams v. Little, No. M2008-02105-COA-R3-CV, 2009 Tenn. App. LEXIS 703, at *6 (Tenn. Ct. App. Oct. 20, 2009).Here, White Castle fully complied with Rule 56's requirements and this Court's rule that it provide a copy ofRule 56 to Mr. Raine. Mr. Raine failed to file a response. The Court holds summaryjudgment is appropriate, and, by the plain language ofRule 56.06, this Court entersjudgment againsthim.

3ITIS, THEREFORE, ORDERED as follows: 1. White Castle's Motion for Summary Judgment is granted, and Mr. Raine's claim against White Castle for the requested workers' compensation benefits is dismissed on the merits with prejudice to its refiling. The Status Conference previously scheduled for January 9, 201 7, is cancelled. 2. The filing fee of$150.00 for this cause is taxed to the Employer, White Castle, pursuant to Tennessee Compilation Rules and Regulations 0800-02-21-.07 (2015), to be paid within five days ofthe entry ofthis order, and for which execution may Issue as necessary. 3. White Castle shall prepare and submit the SD-1 for this matter within ten days of the date of judgment.
ENTEREDthis the 6th day ofDecember,2016.

Right to Appeal: udge Kenneth M. S itzer CourtofWorkers' Compensati

Tennessee Law allows any party who disagrees with this Order to appeal the decision to the Workers' Compensation Appeals Board or the Tennessee Supreme Court. To appeal yourcase to the Workers' CompensationAppeals Board, you must: 1. Completethe enclosed form entitled: "CompensationHearingNotice ofAppeal." 2. File the completed form with the Court Clerk within thirty calendar days ofthe date the Workers' CompensationJudge enteredthe CompensationHearing Order. 3. Serve a copy ofthe Compensation Hearing Notice ofAppeal upon the opposing party. 4. The appealing party is responsible for payment ofa filing fee in the amount of $75.00. Within ten calendar days after the filing ofa notice ofappeal, payment mustbe receivedby check, money order, or credit cardpayment. Payments canbe made in person at any Bureau office or by United States mail, hand-delivery, or other delivery service. In the alternative, the appealingparty may file an Affidavit ofIndigency, on a form prescribed by the Bureau, seeking a waiver ofthe filing fee. The Affidavit ofIndigency may be filed contemporaneously with the Notice
4ofAppeal or must be filed withinten calendar days thereafter. The Appeals Board will consider the Affidavit ofIndigency 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**re~ponsibility** of ensuring a complete record on appeal, may request, from the Court Clerk, the audio recording ofthe hearing for the purpose ofhaving a transcript prepared by a licensed court reporter and filing it withthe Court Clerk within fifteen calendar days ofthe filing ofthe Compensation Hearing Notice ofAppeal. Alternatively, the party filing the appeal may file ajoint statement ofthe evidence within fifteen calendar days of the filing ofthe Compensation Hearing Notice ofAppeal. The statement ofthe evidence must convey a complete and accurate account ofwhat transpired in the Court ofWorkers' Compensation Claims and must be approved by the workers' compensation judge before the record is submitted to the Clerk ofthe Appeals Board. See Tenn. Comp. R. & Regs. 0800-02-22-.03 (2016).
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 calendardays to submitbriefs tothe Appeals Board for consideration. See Tenn. Comp. R. &Regs. 0800-02-22-.03 (2016).
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. Ifneither party timely files an appeal with the Appeals Board, this Order will become final by operation oflaw thirty calendar days after entry,pursuantto Tennessee CodeAnnotated section 50-6-239(c)(7) (2016).

5APPENDIX Technical Record: 1. Employer/Carrier'sMotion for Summary Judgment 2. Employer/Carrier's Statement ofUndisputedMaterial Facts in Support ofits Motion for SummaryJudgment 3. Memorandum ofLawin Support ofEmployer/Carrier'sMotion for Summary Judgment 4. Exhibits 5. Tennessee Rule ofCivil Procedure 56 6. ExpeditedHearing Order 7. Appeals BoardMemorandum Opinion CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy ofthe foregoing Orderwas sent to the following recipients by the following methods of service on this the 6th day of December, 2016.

Name Certified Via Via Service sent to:

. Mail Fax Email DavidRaine, self- X X 1701 Luton St., Apt. B, represented Nashville, TN 37207, ilagosian@.gmail.com BrettBurrow, X Bburrow@bu rrowlee.com Employer's attorney

m, Clerk Courto orkers' Compensation Claims WC.CourtClerk@tn.gov

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