TENNESSEE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT KNOXVILLE 

MARK ELLIOTT, 

Employee, 

v. 

HERITAGE FOOD SERVICES, INC. 

d/b/a BEL AIR GRILL, 

Employer, 

And 

THE HARTFORD INSURANCE CO., 

Carrier. 

) Docket No. 2017-03-0637 

) 

) 

) State File No. 38250-2017 

) 

) 

) Judge Pamela B. Johnson 

) 

) 

COMPENSATION ORDER GRANTING SUMMARY JUDGMENT 

This matter came before the Court on October 1, 2018, on Heritage Food Services, 

Inc.'s Motion for Summary Judgment. The central legal issue is whether Heritage is 

entitled to summary judgment due to Mr. Elliott's failure to present evidence at this 

summary judgment stage supporting essential elements of his claim. For the reasons 

below, the Court holds that Heritage is entitled to summary judgment and dismisses Mr. 

Elliott's claim with prejudice. 

History of Claim 

On May 13, 20 17, Mr. Elliott tripped over another employee and stumbled 

forward, hyper-extending his leg while working for Heritage. He received medical 

treatment following his injury and ultimately selected Dr. Rick Parsons from a physician 

panel offered by Heritage. 1 

Mr. Elliott saw Dr. Parsons on February 6, 2018. Dr. Parsons discussed with Mr. 

Elliott the results of a lumbar spine MRI, which showed multiple level degenerative disk 

1 The submitted medical records indicated Mr. Elliott initially sought care at an emergency room a few 

days following the work incident but did not receive further medical care until January 2018 when he first 

saw Dr. Parsons. 

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disease and changes at L4-L5 with spinal stenosis at L6-S 1. Dr. Parsons told Mr. Elliott, 

"I do not feel like there is anything going on inside the hip itself, I think it is mostly just 

coming from the back." He referred Mr. Elliott to a spine specialist and released him 

from care. 

Dr. Samuel Yoakum examined Mr. Elliott on April 27 and diagnosed a workrelated incident with complaints of back and thigh pain, right hip flexor tendinopathy, 

and multifactorial degenerative lumbar spinal stenosis with questionable radiculopathy. 

Dr. Yoakum reviewed the lumbar MRI and x-ray findings with Mr. Elliott, stating, "His 

hip mechanism could be consistent with a hip flexor strain. The fact that it has been 11 

months since his work-related incident and he has had no workup or treatment on this 

area makes it challenging to determine time line causation 1 00%." Dr. Yoakum referred 

Mr. Elliott to physical therapy and assigned temporary restrictions for the hip flexor 

strain. He also referred Mr. Elliott back to Dr. Parsons, noting, "I will defer to Dr. 

Parsons with regard to final determination on the hip flexor strain." Dr. Yoakum 

determined Mr. Elliott's back issues were not caused by the work-related incident and 

recommended Mr. Elliott seek treatment outside the work comp system. 

On May 8, Dr. Parsons completed a Worklink report for a "R hip" injury and 

referred Mr. Elliott to "PT." Dr. Parsons did not mark whether the right hip injury 

"[Was] Work Related," "[Was] Not Work Related," or "Can Not Be Determined." 

Mr. Elliott's counsel wrote Dr. Parsons on September 24, asking him to "state, 

within a reasonable degree of medical certainty, as to whether or not the issue[s] 

regarding Mr. Elliot[t]'s hip are related to his workers' comp injury of May 13, 20 17." 

Dr. Parsons handwrote, "CAN NOT BE DETERMINED UNTIL THE MRI HAS BEEN 

DONE." (Emphasis in original). 

Procedural History 

After Heritage denied his claim, Mr. Elliott filed a Petition for Benefit 

Determination and Request for Expedited Hearing seeking additional medical treatment 

including a right hip MRI, outstanding medical bills and mileage expenses, and 

temporary disability benefits. At the Expedited Hearing stage, the Court held Mr. Elliott 

failed to present sufficient evidence demonstrating that he was likely to prevail at a 

hearing on the merits on entitlement to additional medical treatment and denied his 

request for a right hip MRI. The Court also held Mr. Elliott failed to present sufficient 

evidence regarding payment of outstanding medical bills, mileage expenses, and 

temporary disability benefits. 

Heritage then filed this Motion for Summary Judgment, along with a Statement of 

Undisputed Facts and a Memorandum of Law. It argued there are no genuine issues of 

dispute as to any material fact. Specifically, it asserted Mr. Elliott cannot satisfy his 

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burden of proof that his injury arose primarily out of and in the course and scope of his 

employment. It contended no physician has stated to a reasonable degree of medical 

certainty that Mr. Elliott's work primarily caused any injury. In contrast, it emphasized 

the authorized treating physicians, whose opinions are presumed correct, have not 

determined that Mr. Elliott's alleged injury arose primarily out of and in the course and 

scope of his employment. 

Mr. Elliott filed a response and argued genuine issues of material fact exist. Mr. 

Elliott argued Heritage denied the physical therapy and right hip MRI. He further 

asserted that Dr. Parsons cannot determine whether his right hip complaints are related to 

the work incident until a right hip MRI is performed. 

Heritage's Objections to Mr. Elliott's Response and Attachments 

Mr. Elliott's response contained twelve-numbered paragraphs with only 

paragraphs 6, 8, 12, and 13 containing partial citations to the record. Mr. Elliott's 

citations refer to exhibits 1 through 4. However, the attached exhibits are unnumbered 

but include Heritage's exhibits marked B and C. 

At the hearing, Heritage objected to Mr. Elliott's response and attachments on the 

bases that he failed to properly cite to the record and that his response and attachments 

included unsupported factual allegations containing hearsay and speculation and lacked 

authentication. The Court took the objections under advisement. 

The Court sustains the objection as to Mr. Elliott's responsive pleading, finding 

that Mr. Elliott's response contained unsupported factual allegations. To the extent the 

factual allegations are unsupported by proper citation to the record, the Court will 

consider the allegations as argument only, not evidence. As to the attachments, the Court 

overrules the objection as to the May 2, 2018 Worklink record and the September 24, 

2018 letter, finding the attachments are signed by a physician authenticating the letters 

and are not excluded by the hearsay rule under Tennessee Rules of Evidence 803. The 

Court sustains the objection as to the January 8, 2017 letter as the letter is unsigned, 

incomplete, lacks authentication, and requires speculation. 

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 (20 18). 

Heritage must do one of two things to prevail on its motion for summary 

judgment: (1) submit affirmative evidence that negates an essential element of Mr. 

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Elliott's claim, or (2) demonstrate that Mr. Elliott's evidence is insufficient to establish 

an essential element of his claim. Tenn. Code Ann. § 20-16-101 (20 17); see also Rye v. 

Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If 

Heritage is successful in meeting this burden, Mr. Elliott "may not rest upon the mere 

allegations or denials of its pleading." !d. at 265. Rather, he must respond by producing 

evidence that sets forth specific facts showing there is a genuine issue for trial. !d.; Tenn. 

R. Civ. P. 56.06. He must do more than simply show that there is some metaphysical 

doubt as to the material facts. Rye, at 265. 

To determine whether summary judgment is appropriate, the Court looks to 

whether there are genuine issues of material fact on the essential elements of Mr. Elliott's 

claim. In doing so, the Court must review the evidence in the light most favorable to Mr. 

Elliott as the nonmoving party and draw all reasonable inferences favoring him. Payne v. 

D and D Elec., 2016 TN Wrk Comp App Bd LEXIS 21, at * 12 (May 4, 20 16). 

The Court finds Payne analogous to this case. In Payne, the employee allegedly 

slipped or stepped off a stair and felt a pop and pain in his left foot in the course and 

scope of his work. He sought medical treatment and the attending physician suspected 

poorly controlled diabetes and underlying osteomyelitis. The employer denied the claim 

on employee's failure to produce medical evidence indicating that he suffered a workrelated injury because of his employment. Following an expedited hearing, the trial court 

awarded medical benefits and the employer provided a panel of physicians. See 

generally, Payne. 

The panel doctor determined the employee suffered from a pre-existing condition 

that was aggravated by the employee's work injury and noted it was not likely the work 

injury created the whole problem. The employer denied further benefits. At a second 

expedited hearing, the trial court denied further benefits on grounds of compensability, 

finding the employee did not establish by expert medical proof that his left foot condition 

arose primarily out of and in the course and scope of employment. The employee did not 

appeal the trial court's order. !d. 

The employer then filed a summary judgment motion because the employee failed 

to submit evidence establishing he suffered an injury or aggravation arising primarily out 

of and occurring in the course and scope of employment. The trial court denied summary 

judgment, determining that while the employee had not yet presented evidence of the 

compensability of his claim, a genuine issue of material fact existed concerning the 

causation opinion the employer relied on. The employer appealed. !d. 

On appeal, the Workers' Compensation Appeals Board reversed the trial court's 

denial of the employer's summary judgment motion and remanded the case to the trial 

court to enter an order granting summary judgment and dismissing the employee's claim 

on the merits. In doing so, the Appeals Board found the employee's response did not 

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include a medical opmwn stating, suggesting, or implying that employee's left foot 

condition or the aggravation of his pre-existing condition arose primarily out of and in the 

course and scope of the employment. !d. at *I 0-II. The Appeals Board concluded, 

[W]ith the passage of Tennessee Code Annotated section 20-I6-I01 and the 

reexamination of the summary judgment standard in Rye, the burden falls to 

the nonmoving party to produce evidence to establish the essential elements 

of the nonmoving party's claim in response to the motion for summary 

judgment. "The focus is on the evidence the nonmoving party comes 

forward with at the summary judgment stage, not on hypothetical evidence 

that theoretically could be adduced ... at a future trial." Thus, in this case, 

the trial court erred in determining that Dr. Chrostowski's failure to 

apportion causation "presents a genuine issue of material fact." The fact 

that Employee may obtain an opinion from Dr. Chrostowski, or any other 

physician, apportioning a greater percentage of causation to the work 

incident than to Employee's pre-existing condition is of no consequence if 

such opinion is not presented at the summary judgment stage. 

!d. at * II-I2 (internal citations omitted). 

Here, the Court finds Heritage demonstrated that Mr. Elliott's medical proof is 

insufficient to establish an essential element of his claim. Dr. Parsons, an authorized 

treating physician, told Mr. Elliott, "I do not feel like there is anything going on inside 

the hip itself, I think it is mostly just coming from the back[,]" and referred him to a back 

specialist, Dr. Yoakum. Thereafter, Dr. Yoakum evaluated Mr. Elliott and determined, 

"His hip mechanism could be consistent with a hip flexor strain. The fact that it has been 

II months since his work-related incident and he has had no workup or treatment on this 

area makes it challenging to determine time line causation 100%." Dr. Yoakum referred 

Mr. Elliott back to Dr. Parsons, noting, "I will defer to Dr. Parsons with regard to final 

determination on the hip flexor strain." In response to Mr. Elliott's request for a 

causation opinion as to his hip complaints, Dr. Parsons advised he could not determine 

causation until the MRI was completed. 

The Court finds Mr. Elliott cannot rely on the argument that the recommended 

MRI may show a causal relationship between his hip complaints and his work incident. 

Such argument is speculative and an attempt to forecast future proof. Instead, Mr. Elliott 

must come forward now, at this summary judgment stage, with expert medical proof 

demonstrating his hip injury arose primarily out of and in the course and scope of his 

employment with Heritage. He has not done so. Therefore, the Court concludes no 

genuine issue of material fact exists and summary judgment is appropriate as a matter of 

law. 

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IT IS, THEREFORE, ORDERED as follows: 

1. Heritage's Motion for Summary judgment is granted, and Mr. Elliott's claim 

against Heritage for the requested workers' compensation benefits is dismissed on 

the merits with prejudice to its refiling. 

2. Heritage shall prepare and file a statistical data form (SD2) with the Court Clerk at 

wc.courtclerk@tn.gov within ten business days of entry of this order. 

3. The filing fee for this case is taxed to Heritage under Tennessee Compilation 

Rules and Regulations 0800-02-21-.07. 

4. Absent an appeal, the order shall become final thirty days after issuance. 

ENTERED October 5, 2018. 

P~MELA B. JOHNSON, JUDGE 

Court of Workers' Compensation Claims 

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the Compensation Order Granting 

Summary Judgment was sent to the following recipients by the following methods of 

service on October 5, 2018. 

Name Certified 

Mail 

John R. Rosson, 

Employee's Attorney 

Joseph Ballard, 

Employer's Attorney 

Fax Email Service sent to: 

X rossonlaw@aol.com 

rjoyce 1960@aol.com 

X joseph. ballard@thehartford.com 

_& )JuUk--' PENN UM, Court Clerk 

WC.CourtClerk@tn.gov 

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