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ime>10:40Ml TENNESSEEBUREAUOFWORKERS' COMPENSATION INTHE COURTOFWORKERS' COMPENSATIONCLAIMS ATNASHVILLE PatrickRiley, Employee, ) DocketNo. 2015-06-0886 ) 

### v. GroupElectric, Employer. ) StateFileNo. 48657-2015 ) ) JudgeKennethM. Switzer

COMPENSATIONHEARINGORDERDENYING MOTIONFORSUMMARYJUDGMENT

This matter came before the Court on April 21, 2017, upon Group Electric's Motion for Summary Judgment filed under Rule 56 of the Tennessee Rules of Civil Procedure. The determinative legal issue is whether Group Electric is entitled to judgment as a matter oflaw. Due to significant deficiencies in Group Electric's motionnamely, its flawed factual recitation and its failure to support the motion with documentation in compliance with Rule 56-the Court holds that Group Electric is not entitledto summaryjudgment. HistoryofClaim As this Court has already benefitted from an interlocutory evidentiary hearing, it incorporates by reference the factual recitation within its Expedited Hearing Order. For purposes ofthis motion, the Courtreiterates onlythe facts germaneto the appropriateness ofsummaryjudgment. Mr. Riley worked for Group Electric as a journeyman electrician. On June 8, 2015, Mr. Riley injured his left hand and wrist while installing wire at work. The following day, he went to the Summit Medical Center Emergency Room, where providers referredMr. Riley for an orthopedic consult. Group Electric offered apanel of orthopedists, and Mr. Riley chose Dr. Rosa Stone. In the meantime, Mr. Riley saw providers at Concentra upon his supervisor's direction. He saw three different providers at three visits. One ofthese Concentra providers, Dr. Saritha Reddy, ordered an MRI. When Mr. Riley ultimately saw the authorized treating physician, Dr. Stone, notes from
1this visit do not provide an opinion on causation. Although he underwent the MRI, he never reviewed the results with Dr. Stone because she later refused to treat him. Group Electricultimately deniedthe claim.
Inthe Expedited Hearing Order, the Court found Mr. Riley a credible witness and rejected Group Electric's arguments that he was not injured on June 8, 2015. The Court reasoned thatMr. Riley's testimony, along withthe histories at Concentra, supported this finding. The Court held Mr. Riley likely to prevail at a hearing on the merits that he suffered an injury by accident in the course of his employment and ordered Group Electricto provide anotherpanel oforthopedists. Afterthe Appeals Board affirmed, Group Electric offered a panel oforthopedists, from which Mr. Riley selected Dr. Todd Wurth. It is unclear when Mr. Riley saw Dr. Wurth and the nature and extent ofhis treatment, as neither party filed these medical records withthe Court. Group Electric attachedto its summaryjudgmentmotion a threepage, single-spaced letter seeking Dr. Wurth's opinion on causation. 1 Group Electric's letter asserted, "[t]he SummitEmergency Room records directly conflictwith the history you were provided" by Mr. Riley. Group Electric attached these records to its letter to Dr. Wurth, along with the records from the visit with Dr. Speake, where he questioned the correlation between Mr. Riley's "story ofinjury and exam." The letter then detailed notations within the medical records that this Court found unpersuasive in establishing the date and mechanism of injury at the Expedited Hearing. It does not appear that Group Electric provided copies ofother medical records from Concentra, which contain the alternative account ofhow Mr. Riley became injured. Group Electric's letter then askedDr. Wurth: As the medical records from June 9, 2015 reflect that Mr. Riley's pain began three days earlier and that Mr. Riley denied an injury had occurred, can you say to a reasonable degree ofmedical certainty that Mr. Riley's wrist condition primarily arose out of a June 8, 2015 workplace injury? (Emphasis in original.) Dr. Wurth circled "no." Lawand Analysis The Court first addresses Group Electric's objectionto Mr. Riley's response to the summaryjudgment motion on grounds ofit being untimely filed. Group Electric also argued the response does not comply with Rule 56 of the Tennessee Rules of Civil

1The Court observes that this letter references a previous letter to Dr. Wurth dated November I, 2016, which is not included in any filings with the court. Apparently, the November 1 letter also requested a causation opinion and might have contained additionalbackground information. 2Procedure because Mr. Riley did not support the factual allegations he disputes with citations to the record; rather, he offered varying factual assertions that are merely "personal statements" unsupportedby affidavits. Mr. Riley, whose attempts to hire legal counsel have been unsuccessful, acknowledged he is held to the same standard as an attorney eventhoughherepresents himself.2
Rule 56.03 of the Tennessee Rules of Civil Procedure provides that a party opposing a motion for summary judgment must, no later than five days before the hearing, file aresponse to each statement ofundisputed fact alleged by the moving party. Mr. Riley failed to comply with both the time parameters ofRule 56.03 and with the substance ofhis response. In light ofthis noncompliance, the Court declines to consider his response. Turning now to Group Electric's written motion, Rule 56.03 requires it to 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." The Court takes judicial notice of testimony heard and exhibits admitted into evidence at the prior, in-person expeditedhearing. See Hughes v. New LifeDev. Corp., 387 S.W.3d 453, 457 n.l (Tenn. 2012), holding, "we are permitted to take judicial notice of the facts from earlier proceedings inthe same action." After weighing the evidence at the Expedited Hearing, the Court found Mr. Riley sustained an injury on June 8, rather than June 6. Yet, Group Electric's "Statement of Undisputed Facts" continues to emphasize notations in the medical records suggesting the injury occurred on June 6 as "facts." Group Electric relied on a causation letter that bases this conclusion on a factual assertion rejected at the Expedited Hearing.3 Because Dr. Wurth's causation opinion depends on June 6 as the accurate date of injury, the causation question essentially asks Dr. Wurth to make a factual and credibility determinationregarding the date ofinjury. These determinations are the province ofthis Court alone and not a medical expert. Aside from these deficiencies, the Court further notes that Rule 56.04 states, "Subjectto the moving party's compliance with Rule 56.03, thejudgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions onfile, together with the affidavits, if any, show there is no genuine issue as to any material fact[.]" (Emphasis added.)

2"It is well-settled

...thatproselitigants must comply with the same standards to which lawyers must adhere." Burnette v. K-Mart Corp., 2015 TN Wrk. Comp. App. Bd. LEXIS 2, at *6 (Jan. 20, 2015).

3 Notwithstanding this ruling, Group Electric may challenge the date of injury or any other issue previously determined at the Expedited Hearing at the final Compensation Hearing with the proper evidence as described laterwithinthis order. 3Here, Group Electric submitted Dr. Wurth's opinion in the form ofa letter rather than an affidavit or deposition testimony. The letter's reliability is suspect, because of the selective information Dr. Wurth relied upon in his response and the fact that the response is unsworn. The Tennessee Workers' Compensation Appeals Board recently expressed concern about a summary judgment motion supported by letters from physicians that "werenot accompanied by an affidavit, were not attached to a deposition, were not attached to answers to interrogatories or admissions, and were not a part ofa pleading as defined in TennesseeRule ofCivilprocedure 7.01." Thomas v. ZippExpress, eta!., 2017 TN Wrk. Comp. App. Bd. LEXIS 22, at *11-12 (Mar. 15, 2017). The Appeals Board stopped short ofaddressing this failure because neitherparty raised as the issue on appeal. Id. at 12. However, in a concurring opinion, Judge Hensley noted that the Bureau's rules regarding the admissibility of causation letters state, "[a]t a compensation hearing, these letters or statements [addressing medical causation], even if in affidavit form may be excluded as appropriate through [a] valid objection made pursuant to the Tennessee Rules of Evidence." Thomas, supra, at 

## *17 (Hensley, J., concurring). On this basis, Judge Hensley held the employer failed to comply with Tennessee Rule ofCivil Procedure 56.03. Guided by both the majority and concurring opinions in Zipp, this Court holds that Group Electric's supporting documentation is insufficientbasedonRule 56'srequirements.
ITIS,THEREFORE,ORDEREDAS FOLLOWS: 1. GroupElectric'smotion for summaryjudgmentis denied. 2. This matter is set for a Status Conference on May 8, 2017, at 8:45a.m. Central Time. You must call 615-532-9552 or toll-free at 866-943-0025 to participate in the Hearing. Failure to call might result in a determination ofthe issues without your furtherparticipation. ENTEREDthis the 26th dayofApril,2017.

ourtofWorkers' Compens ion Claims

4CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy ofthe Compensation Hearing Order Denying Summary Judgment was sent to the following recipients by the following methods ofserviceon this the 26th day ofApril, 2017.

Name PatrickRiley, Employee

T. RyanMalone, Employer'sAttome Certified Via Mail Fax X Via Email X

X Service sentto: hrdwirdelect@yaho

.com;4001 Anderson Rd., Apt. 0-36, Nashville TN 37217 ryan@petersonwhite.com

h um, ClerkofCourt Court Workers' Compensation Claims WC.CourtClerk@tn.gov

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