1

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Victor Soto ) Docket No. 2021-08-0937

)

v. ) State File No. 15935-2022

)

Denny Patterson, Jr., d/b/a Patterson )

Construction, et al. )

)

Appeal from the Court of Workers’ )

Compensation Claims )

Amber E. Luttrell, Judge )

Vacated and Remanded

In this interlocutory appeal, the claimant asserted he sustained significant head injuries and 

brain trauma due to a fall that occurred while working for the employer. The employer 

denied the claim, contending that the claimant was an independent contractor at the time 

of the work incident. Following an expedited hearing, the trial court denied the claimant’s 

request for certain benefits after concluding the claimant had failed to provide sufficient 

evidence from which it could determine he was likely to prevail at trial in establishing he 

was an employee. Thereafter, the employer filed a motion for summary judgment, 

asserting it is entitled to judgment as a matter of law on the basis that the claimant was an 

independent contractor. Following a hearing on the employer’s motion, the trial court 

concluded that genuine issues of material fact existed regarding the claimant’s work status 

and denied the employer’s motion. The employer has appealed. After careful 

consideration, we vacate the trial court’s order and remand this matter for additional

findings consistent with this opinion.

Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding Judge 

Timothy W. Conner and Judge Meredith B. Weaver joined.

Emily Bragg Faulkner, Memphis, Tennessee, for the employer-appellant, Denny Patterson, 

Jr., d/b/a Patterson Construction

Victor Soto, Memphis, Tennessee, claimant-appellee, pro se

FILED

Jun 24, 2024

01:08 PM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD
2

Factual and Procedural Background

On August 11, 2021, Victor Soto (“Claimant”) fell from a ladder while installing 

seismic framing for Denny Patterson, Jr., d/b/a Patterson Construction (“Patterson”). He 

reportedly suffered significant head injuries and brain trauma, resulting in several surgeries 

and extensive medical treatment.1

 Patterson denied his workers’ compensation claim, 

asserting Claimant was an independent contractor and was not its employee at the time of 

the accident.

Claimant retained counsel and filed a petition for benefit determination in 

September 2021. Following an unsuccessful mediation, a dispute certification notice was 

issued in January 2022. Thereafter, Claimant filed a request for an expedited hearing, and 

the parties engaged in discovery. Following the expedited hearing, the trial court issued 

an order denying Claimant’s request for the initiation of benefits, determining Claimant 

had not come forward with sufficient evidence to indicate he was likely to prevail at trial 

in proving he was an employee of Patterson at the time of the accident. After the court’s 

order was issued, Claimant’s counsel filed a motion to withdraw, and the trial court granted 

that motion in November 2022. Since that time, Claimant has proceeded in a selfrepresented capacity.

On August 3, 2023, Patterson filed and served requests for admissions (“RFAs”) on 

Claimant. According to Patterson’s Supplemental Memorandum of Law filed January 4, 

2024, Claimant’s responses to those requests were “served” on September 3, 2023.2

 On

October 16, 2023, the last day for the filing of a dispositive motion according to the court’s 

scheduling order, Patterson filed a motion for summary judgment, statement of undisputed 

facts, and supporting brief in which it asserted Claimant was not its employee at the time 

of the accident as defined in Tennessee Code Annotated section 50-6-102(10)(D)(i) (2023). 

Claimant did not file a response to Patterson’s motion and did not respond to Patterson’s 

statement of undisputed facts as required by Rule 56 of the Tennessee Rules of Civil 

Procedure.

On January 16, 2024, the court heard Patterson’s motion for summary judgment. 

During the hearing, Claimant did not dispute receiving the motion for summary judgment 

but testified that due to “my illness, I am unable to answer, and I need my daughter to assist 

me because she speaks English, and she can read and explain those to me.” Claimant 

informed the court he would rely on the affidavits of Benjamin Perez and Wilmer Lopez, 

1 For purposes of this appeal, the extent and nature of Claimant’s injuries and medical treatment are not at 

issue.

2 Claimant added his responses to Patterson’s original document, and there is no certificate of service 

indicating when and how his responses to the RFAs were transmitted to Patterson. According to Patterson’s 

pre-hearing brief, however, they were “served” by email on September 3, 2023. Patterson subsequently 

filed Claimant’s responses with the court on January 4, 2024.
3

both filed in July 2023, in opposition to Patterson’s motion. Patterson filed a motion to 

exclude the affidavit of Wilmer Lopez prior to the hearing and made an oral motion to 

exclude the Rule 72 Declaration/affidavit of Benjamin Perez at the hearing. The court took 

the motions under advisement.

On April 3, the trial court issued an order denying summary judgment, stating it 

“need not rule on [Patterson’s] motions [to exclude] because the affidavits were not 

considered in the decision.” In its order, the court referenced Claimant’s testimony from 

pleadings relied upon by Patterson in its motion and determined that, pursuant to section 

50-6-102(10)(D)(i), factual issues exist regarding the right to control the work, the method 

of payment, the furnishing of tools, and the work schedule. In its order, the court did not 

address Claimant’s failure to respond to Patterson’s statement of undisputed facts as 

required by Rule 56. Patterson 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 the 

Tennessee Rules of Civil Procedure have been satisfied.” Id. We are mindful 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. § 50-6-116 (2023).

Analysis

In its appeal, Patterson asserts the trial court erred in denying its motion for 

summary judgment because it had satisfied its burden of production under Rule 56 of the 

Tennessee Rules of Civil Procedure. It also contends the court improperly considered the 

affidavits of Benjamin Perez and Wilmer Lopez as responses to Patterson’s motion for 

summary judgment.

The Tennessee Supreme Court has explained the requirements for a movant to 

prevail on a motion for summary judgment:

[W]hen the moving party does not bear the burden of proof at trial, the 

moving party may satisfy its burden of production either (1) by affirmatively 

negating an essential element of the nonmoving party’s claim or (2) by 

demonstrating that the nonmoving party’s evidence at the summary judgment

stage is insufficient to establish the nonmoving party’s claim or defense. We 

reiterate that a moving party seeking summary judgment by attacking the 

nonmoving party’s evidence must do more than make a conclusory assertion 
4

that summary judgment is appropriate on this basis. Rather, Tennessee Rule

56.03 requires the moving party to support its motion with a separate concise 

statement of material facts as to which the moving party contends there is no 

genuine issue for trial. Each fact is to be set forth in a separate, numbered

paragraph and supported by a specific citation to the record.

Rye, 477 S.W.3d at 264-65 (internal quotation marks and citations omitted). Thus, for 

Patterson to prevail on its motion for summary judgment, it must show either that it negated 

an essential element of Claimant’s claim or that Claimant’s evidence is insufficient as a 

matter of law to establish his claim at the summary judgment stage.

Moreover, 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. In evaluating a trial court’s decision 

to deny a motion for summary judgment, we consider the evidence in a light most favorable 

to the nonmoving party. Arnold v. Courtyard Mgmt. Corp., No. W2015-02266-SC-WCMWC, 2016 Tenn. LEXIS 648, at *7 (Tenn. Workers’ Comp Panel Sept. 28, 2016). If the 

moving party is successful in meeting its burden of production, the nonmoving party “may 

not rest upon the mere allegations or denials of [its] pleading.” Rye, 477 S.W.3d at 265. 

Rather, the nonmoving party must respond by producing affidavits, pleadings, depositions, 

responses to interrogatories, or admissions that set forth specific facts showing that there 

is a genuine issue for trial. Tenn. R. Civ P. 56.06; see also Rye, 477 S.W.3d at 265. If the 

nonmoving party fails to do so, “summary judgment, if appropriate, shall be entered against 

the [nonmoving] party.” Tenn. R. Civ. P. 56.06.

Rule 56.03 places specific filing requirements on both the moving and nonmoving 

parties. The moving party is required to file a statement of undisputed material facts with 

its motion, and each fact must be accompanied by a citation to the record. Tenn. R. Civ. 

P. 56.03. With respect to the nonmoving party, Rule 56 provides that

[a]ny party opposing the motion for summary judgment must, not later than 

five days before the hearing, serve and file a response to each fact set forth 

by the movant either (i) agreeing that the fact is undisputed, (ii) agreeing that 

the fact is undisputed for purposes of ruling on the motion for summary 

judgment only, or (iii) demonstrating that the fact is disputed. Each disputed 

fact must be supported by specific citation to the record. Such response shall 

be filed with the papers in opposition to the motion for summary judgment.

Id. In addition, the nonmoving party may serve and file opposing affidavits not later than 

five days before the hearing. Id. Similarly, Tenn. Comp. R. and Regs. 0800-02-21-.18(d) 

provides the following guidance when a dispositive motion is opposed:
5

If a dispositive motion is opposed, a written response to the motion must be 

filed and served on all parties or their counsel no later than five (5) business 

days before the motion hearing. The response must state with particularity 

the grounds for opposition. If no opposition is filed, the dispositive motion 

will be considered unopposed. The judge may without the need for an 

affidavit from the non-moving party grant additional, reasonable time for the 

non-moving party to respond, obtain affidavits, engage in discovery, or take 

depositions.

In its brief on appeal, Patterson asserts there is “no dispute” that its motion complied 

with Rule 56 or that Claimant was required to respond to its statement of undisputed facts

if he opposed the motion. Because Claimant failed to submit a response to its motion or 

statement of facts, Patterson contends that the facts set forth in its statement of undisputed 

facts are not contested for purposes of its motion and that the court’s analysis should turn 

to “whether summary judgment is appropriate based on the undisputed facts presented by 

[Patterson].” Further, Patterson asserts in its supplemental memorandum of law in support 

of its motion for summary judgment that Claimant’s responses to its second set of RFAs 

were not timely and, therefore, should have been deemed admitted by operation of Rule 

36.01 of the Tennessee Rules of Civil Procedure.

Regarding the RFAs, Patterson’s second set of RFAs were stamped filed August 3, 

2023, which is also the date the certificate of service was signed, indicating that is when 

they were served on Claimant. In its supplemental memorandum of law, filed on January 

4, Patterson notes that Claimant’s responses to its second set RFAs were “served” by email 

on September 3, 2023, then later filed with the court on January 4, 2024.

Rule 36.01 provides, in relevant part, that 

[t]he matter is admitted unless, within 30 days after service of the request, or 

within such shorter or longer time as the court may allow, the party to whom 

the request is directed serves upon the party requesting the admission a 

written answer or objection addressed to the matter, signed by the party or 

by the party’s attorney . . . .

Patterson argues that Claimant’s responses were due September 2; as a result, the responses 

it received on September 3 were not timely and its RFAs should be deemed admitted. 

However, Tennessee Code Annotated section 1-3-102 provides that “[t]he time within 

which any act provided by law is to be done shall be computed by excluding the first day 

and including the last, unless the last day is a Saturday, a Sunday, or a legal holiday, and

then it shall also be excluded.” Because September 2, 2023 was a Saturday, the deadline 
6

for Claimant to file a response was Tuesday, September 5.

3 Accordingly, we conclude 

Claimant’s responses to Patterson’s second RFAs were served timely.

Relative to Patterson’s argument that its statement of facts is undisputed, Patterson 

asserts that: (1) Patterson is a sole proprietorship and Mr. Patterson was its only employee 

since 2015; (2) Patterson did not provide training or instruction to Claimant and did not 

supervise his work other to ensure it complied with building codes; (3) Patterson retained 

the right to dismiss a subcontractor if his work was unsatisfactory; (4) Patterson was to pay 

Claimant $416.00 upon completion of the project; (5) Claimant was free to select and hire 

helpers; (6) Patterson did not provide Claimant with basic tools and equipment necessary 

to complete the framing work; (7) Patterson did not control Claimant’s working hours or 

schedule; and (8) Claimant was free to offer his service to others. Thus, Patterson argues

that based on its unopposed statement of undisputed facts, Claimant cannot come forward 

with any evidence to establish that he was its employee on the date of the accident.

In its order, the trial court emphasized that Patterson’s burden as the moving party 

is to either submit affirmative evidence that negates an essential element of the nonmoving 

party’s claim or to demonstrate that Claimant’s evidence is insufficient to establish an 

essential element of his claim. Ultimately, after reviewing documents relied on by 

Patterson, the court determined it had failed to meet this burden. However, in doing so, 

the court failed to address the effect, if any, of Claimant’s failure to respond to Patterson’s 

statement of undisputed facts filed in conjunction with its motion for summary judgment.

Accordingly, we vacate the trial court’s order denying Patterson’s motion for 

summary judgment and remand the case for the court to make additional findings 

addressing Claimant’s failure to respond to Patterson’s statement of undisputed facts and/or 

otherwise comply with Tennessee Rule of Civil Procedure 56.

Conclusion

For the reasons stated above we vacate the trial court’s order and remand the case 

for additional findings consistent with this opinion. Costs on appeal are taxed to Patterson.

3 Monday, September 4, was Labor Day, so that date is also excluded from the calculation of the due date. 
 

 

 

 TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

 WORKERS’ COMPENSATION APPEALS BOARD 

Victor Soto ) Docket No. 2021-08-0937 

) 

v. ) State File No. 15935-2022 

)

Denny Patterson, Jr., d/b/a Patterson ) 

Construction, et al. ) 

) 

) 

Appeal from the Court of Workers’ ) 

Compensation Claims ) 

Amber E. Luttrell, Judge ) 

CERTIFICATE OF SERVICE

 

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

case was sent to the following recipients by the following methods of service on this the 24th day 

of June, 2024. 

Name Certified 

Mail

First Class 

Mail

Via 

Fax

Via 

Email

Sent to: 

Emily Bragg Faulkner X emily.faulkner@mgclaw.com

lateafa.patton@mgclaw.com

Victor Soto X lucero.t.soto@gmail.com

Amber E. Luttrell, 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

 

Matthew Keene

Acting Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B 

Nashville, TN 37243 

Telephone: 615-532-1564 

Electronic Mail: WCAppeals.Clerk@tn.gov