1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Victor Soto ) D ocket No. 2021

- 08

- 0937 )

v. ) State File N o. 1593 5

- 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 assert ed he su stained 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 ind ependent 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 th at genuine issues of material fact exist ed 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 employ er

- appellant , Denny Patterson, Jr., d/b/a Patterson Con struction

Victor Soto

, Memphis, Tennessee, claimant

- appellee

, pro se 

### FILED Jun 24, 2024 01:08 PM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD2 Factual and Procedural Background

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

se ismic framing for Denny Patterson, Jr., d/b/a Patterson Construction (“Patterson”). He reportedly suffered significant head injuries and brain trauma , resulting in several surg eries

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

issue d in January 2022. Thereafter, Claimant filed a request for an expedited hearing

, and

the parties engaged in discovery

. Following th e 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 proceed ed in a self

represented capacity.

On August 3, 2023, Patterson filed and served requests for admissions (“R FAs” ) 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 re sponse 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 as sist 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 response s 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 file d 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 motion s 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 Pa tterson in its motion and determined that, pursuant to section

50

- 6

- 102(10)(D) ( i), factual issue s 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. O f 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 (202 3 ).

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 cou rt 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 essentia l 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 judgme nt by attacking the nonmoving party ’ s evidence must do more than make a conclusory assertion4 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 l aw to establish his claim at the summary judgment stage

.

Moreover, s ummary 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. W 2015

- 02266

- SC

- WCM

WC, 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 par ty “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 specifi c 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

part ies . 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 hea ring, 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, t he 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

- 2 1

- .1 8(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 opposi tion. 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, enga ge in discovery, or take depositions.

In its brief o n 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 C laimant 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 [Patters on].” Further, Patte rson 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 Tennesse e 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 response s to its second set RFAs w ere “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 deadline6 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 of fer 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 th e 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’ COMPENSAT ION 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. ) ) ) Ap peal from the Court of Workers’ ) Compensation Claims )

Amber E. Luttrell , Judge )

C ERTIFICATE 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 :

Emil y Bragg Faulkner X emily.faulkner@mgclaw.com

l ateafa. p atton@mgclaw.com

Vi ctor 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: WCApp eals.Clerk@tn.gov