1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSAT I ON APPEALS BOARD

Lawrence Mitchell ) D ocket No. 20 21

- 01

- 0 379 )

v. ) S tate File N o. 62070

- 2018 ) Waupaca Foundry, Inc., et al. ) ) ) Appeal from the Court of Workers’ ) Compensation Claims ) Audrey A. Headrick

, Judge )

Affirmed and Certified as Final

In this appeal of an order granting the employer’s motion for summary judgment, the employee asserts that the trial court erred in accepting the authorized physician’s op inion regarding maximum medical improvement and permanent partial impairment. The employer had filed the motion for summary judgment asserting there were no genuine issues of material fact in dispute with respect to the degree of the employee’s permanent disability arising from the work injury , and the trial court agreed. The employ ee has appealed. Having carefully reviewed the record, we affirm the trial court’s decision and certify the trial court’s order as final.

Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding Judge Timothy W. Conner joined.

Lawrence Mitchell, Etowah, Tennessee, employee

- appellant, pro se

Catheryne L. Grant and Taylor R. Pruitt, Brentwood , Tennessee, for the employ er

- appell ee, Waupa ca Foundry, Inc.

Factual and Procedural Background

The facts surrounding this appeal are largely undisputed. Lawrence Mitchell (“Employee”) reported feeling pain at the end of his shift while working for Waupaca Foundry, Inc. (“Employer”), on August 10 , 2018. 1 Employee initially declined medical

1 We note documentation throughout the record in which Employee disputes the manner in which Employer and its representatives describe d the mechanism of injury . On multiple occasions, Employee requested that documentation be corrected to reflect his account of how the injury occurred. Employee also disputed the 

### FILED Jun 07, 2022 01:30 PM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD2 care, but on August 15, 2018, he indicated his desire to see a physician. Employer provided a panel of primary care clinics from which Employee selected Madisonville Primary Care.

Employee ultimately came u nder the care of Dr. David Hauge, who provided a

course of conservative treatment , including physical therapy. Employee failed to improve,

and

, on November 13, 2019, he saw Dr. Patrick Bolt for a second opinion. Dr. Bolt observed that Employee’s complain ts were consistent with a cervical strain/sprain and myofascial pain in the right trapezius. He concluded the symptoms were the result of an aggravation or exacerbation of a previously asymptomatic degenerative condition. Dr. Bolt did not recommend surge ry and noted that Employee disagreed with the results of the FCE, believing they did not accurately reflect his physical abilities. Dr. Bolt stated that he believed that the FCE “accurately predicted [Employee’s] work capacity, but failed to predict [Empl oyee’s] work tolerance secondary to pain.”

On December 1 0 , 2019, Employee returned to Dr. Hauge , who noted that Employee still complained of cervical pain despite extensive conservative treatment. He found no evidence of neurological impairment or radicu lar symptoms and stated that an MRI and electrodiagnostic testing did not reveal any additional conditions necessitating treatment. Dr. Hauge also observed Employee had participated in a functional capacity evaluation (“FCE”) , the results of which were determined to be valid, that placed Employee’s abilities at the medium physical demand level. Dr. Hauge noted that Dr. Bolt’s conclusions were consistent with his, as neither recommended surgical intervention or long

- term opioid pain management. On December 11, 2019, Dr. Hauge completed a C

- 30A Final Medical Report in which he assigned an anatomical impairment rating of 5% to the body as a whole and returned Employee to work with restrictions consistent with the FCE

.

Over the next two years, the parties engaged in mediation on multiple occasions

with limited success. Certain issues concerning medical care were resolved by agreement,

but the cl aim remained pending with no resolution. On November 18, 2020, Employee’s claim was dismissed without prejudice for his failing to file a request for a hearing in compliance with an October 21, 2020 order of the trial court. 2 Employee filed another peti tion that same day, to which he attached correspondence detailing his concerns with his

claim , including his assertion that he had reported shoulder pain that had not been addressed by a physician. He also voiced dissatisfaction with the care offered by D r. Hauge.

The parties were unable to resolve the disputed issues through mediation , and on June 28, 2021, Employer filed a motion for summary judgment pursuant to Rule 56 of the

job description provided to the physician. Because such discrepancies are not relevant to the ultim ate disposition of this appeal, we need not discuss them further.

2 The trial court’s November 18, 2020 order references its October 21, 2022 order ; however, the October 21, 2022 order is not contained in the record on appeal

.3 Tennessee Rules of Civil Procedure (“Rule 56”) . Employer asserted in its mo tion that Employee was entitled to certain permanent disability benefits and medical care and that there were no genuine issues of material fact that would prevent a court from granting Employer’s motion. Employee requested two continuances, the first of which was granted, indicating he was gathering additional information and documentation to respond to the

motion . In an order dated September 30, 2021, the trial court denied Employer’s motion for summary judgment because of its reliance on medical records that were neither

authenticated by affidavit n or otherwise admissible at the summary judgment stage

. See

Lemons v. Elwood Staffing Servs., Inc.

, No. 2019

- 02

- 0313, 2021 TN Wrk. Co m p . App. Bd. LEXIS 12, at *11 (Ten n. Workers’ Comp. App. Bd. May 4, 2021).

Thereafter, a pparently in response to Employee’s assertion that he did not receive proper treatment for his cervical complaints or any treatment for his shoulder complaint, Employer scheduled an appointment with D r. Barry Vaughn to provide an opinion regarding these injuries. Dr. Vaughn completed a Standard Form Medical Report for Industrial Injuries (“Form C

- 32”) on October 5, 2021. Dr. Vaughn expressed his opinion that Employee’s complaints were related to dege nerative conditions and were not work

related. Employer also obtained a Form C

- 32 dated October 19, 2021

, from Dr. Hauge in which he reiterated his previous findings.

On January 5, 2022, Employer filed a second motion for summary judgment, with appropriate medical documentation, asserting the same bases as in its prior motion. Employee ’s response, filed on February 26, 2022 , reiterat ed his complaints with the

manner in which his injury was described, the job description provided to the physicians,

and the medical care he received. However, Employee ’s response did not comply with the requirements of Rule 56. Following a February 28 hearing on Employer’s motion for

summ ary judgment, the court issued an order granting Employer’s motion, noting that Employee did not file a response to Employer’s motion consistent with Rule 56 of the

Tennessee Rules of Civil Procedure and that the documentation he provided in support of

his position was unauthenticated . The court noted that Employer met its burden of production by demonstrating Employee is not entitled to an award of permanent disability

benefits greater than that specified in the statute based on his work status and rate o f pay at the time of maximum medical improvement

. In turn, Employee did not meet his burden of establishing any genuine issue of material fact that c ould entitle him to a greater permanent disability award. Thus, the court granted Employer’s motion for s ummary judgment. Employee has appealed.

Standard of Review

The grant or denial of a motion for summary judgment is a matter of law that we review de novo with no presumption that the trial court’s conclusions are correct. See Rye v. Women’s Care Ctr. of Memphis, MPLLC , 477 S.W.3d 235, 250 (Tenn. 2015). As such, we must “make a fresh determination of whether the requirements of Rule 56 of the4 Tennessee Rules of Civil Procedure have been satisfied.” Id. In reviewing a trial court’s decision on a motion for summary judgment, we are to review the evidence in a ligh t most favorable to the nonmoving party and draw all reasonable inferences in favor of the nonmoving party. Lyles v. Titlemax of Tenn. Inc. , No. W2017

- 00873

- SC

- WCM

- WC, 2018 Tenn. LEXIS 520, at *5 (Tenn. Workers’ Comp. Panel Sept. 14, 2018). We are also

m indful of our obligation to construe the workers’ compensation statutes “fairly, impartially, and in accordance with basic principles of statutory construction” and in a way that does not favor either the employee or the employer. Tenn. Code Ann. § 50

- 6

- 1 16 (2021).

Analysis

A motion for summary judgment should be granted 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 a nd that the moving party is entitled to a judgment as a matter of law. ” Tenn. R. Civ. P. 56.04. The burden is on the party pursuing summary judgment to demonstrate both that no genuine issues of material fact exist and that the moving party is entitled t o a judgment as a matter of law. Martin v. Norfolk S. Ry. Co. , 271 S.W.3d 76, 83 (Tenn. 2008). When, as in the present case, the moving party does not bear the burden of production at trial, the moving party may satisfy

its burden at the summary judgment stage by either (1) affirmatively negating an essential element of the nonmoving party ’ s claim o r (2) demonstrating that the nonmoving party ’ s evidence at the summary judgment stage is insufficient to establish the nonmoving party ’ s claim. Rye , 477 S.W.3d at 26 4

. If the moving party makes a properly supported motion, the burden of production then s hifts to the nonmoving party to demonstrate the existence

of one or more genuine issue s of material fact at the summary judgment stage. Id. at 26 5

.

In Payne v. D & D Electric , No. E2016

- 01177

- SC

- R3

- WC, 2017 Tenn. LEXIS 215 (Tenn. Workers’ Comp. Panel Apr . 18, 2017), the Supreme Court’s Special Workers’ Compensation Appeals Panel addressed current summary judgment standards:

When a motion for summary judgment is made and supported, the party opposing summary judgment must file a response to each fact set forth by the moving party. The nonmoving party may not rely upon the allegations in the pleadings; to survive summary judgment, the nonmoving party must set forth specific facts showing a genuine issue for trial. The nonmoving
party ’ s response must do mo re than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must demonstrate the existence of specific facts in the record that could lead a rational trier of fact to find in favor of the nonmoving party.

Id. a t *8 (internal citations omitted). See also Bellomy v. Autozone, Inc. , No. E2009

- 00351

- COA

- R3

- CV, 2009 Tenn. App. LEXIS 792, at *38 (Tenn. Ct. App. Nov. 24, 2009) (“The5 nonmoving party may satisfy its burden of production by

. . . pointing to evidence establishing material factual disputes that were over

- looked or ignored b y the moving

party.

. . .”).

Here, Employer satisfied its burden of production by submitting the admissible opinions of physicians establishing Employee’s degree of permanent impairment and permanent restrictions. Employer also submitted evidence of Emp loyee’s compensation rate and its overpayment of temporary disability benefits. Further, in its Statement of Undisputed Facts, Employer asserted Emplo y ee had returned t o work for Employer “earning at least 100% of his pre

- injury wages.” This statement wa s suppo rt ed by a Rule 72 Declaration of Employer’s human resource s manager. Employee did not refute or otherwise respond to this statement. Thus, h aving successfully met its burden of showing the extent of permanent disability benefits to which Employee was entitled by statute , the burden then shifted to Employee to establish a genuine issue of material fact for trial. We

conclude h e has failed to do so.

Employee has raised multiple issues and made multiple allegations concerning the

nature and extent of his medical treatment, the nature of his work, whether Dr. Hauge should be deemed the authorized physician moving forward , and other issues. 3 He has requested additional investigation into alleged violations by Employer and/or its insurer and whether proper procedures were followed in the handling of his claim. However, he has not presented evidence admissible at the summary judgment stage es tablishing a genuine issue of material fact that would preclude the court from granting Employer’s

motion.

Conclusion

For the foregoing reasons, we affirm the trial court’s order granting Employer’s motion for summary judgment. Costs on appeal are taxed to Employee

.

3 Given that Employee’s righ t to reasonable and necessary future medical benefits related to his work injury remains open, Employee can, if necessary, seek further redress from the trial court regarding any alleged issues arising from authorized medical treatment.TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSAT ION APPEALS BOARD

Lawrence Mitchell ) Docket No. 2021-01-0379 )

v. ) State File No. 62070-2018 ) Waupaca Foundry, Inc., et al. ) ) ) Appeal from the Court of Workers’ ) Compensation Claims ) Audrey A. Headrick, Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the A ppeals Board’s decision in the referenced

case was sent to th e following recipients by the following methods of service on this the 7th day of June, 2022.

Name Certified

Mail First Class

Mail Via

Fax Via

Email Se nt to:

Lawrence Mitchell X m itchell

. lawrence3497@yahoo.com Catheryne Grant Taylor Pruitt X catherynelgrant@feeneymurray.com trp@feeneymurray .com Audrey A. Headrick

, Judge X Via Electronic Mail

Kenneth M. Switzer

, Chief Judge X Via Electronic Mail Penny Shrum, Clerk, Court of Workers’ Compensation Claims X penny.patterson

- shrum@tn.gov

Olivia Yearwood Clerk, Workers’ Compensation Appeals Board 220 French Landing Dr., Ste. 1-B Nashville, TN 37243 Telephone: 615-253-1606

Electronic Mail: WCAppeals .Clerk@tn.gov