FILED

Feb 13, 2020

03:45 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT MEMPHIS 

JEFFREY HARDEN, ) Docket No. 2018-08-1535 

Employee, ) 

v. ) 

ADVANCE MFG. CO., INC., ) State File No. 97520-2018 

Employer, ) 

And ) 

TRAVELERS INDEMNITY CO. OF ) Judge Allen Phillips 

AMERICA, ) 

Carrier. ) 

COMPENSATION ORDER GRANTING SUMMARY JUDGMENT 

This case came before the Court on Advance's Motion for Summary Judgment. 

Advance argued it is entitled to summary judgment because Mr. Harden cannot establish 

his injuries arose primarily out of his employment. For the following reasons, the Court 

grants the motion. 

Procedural History 

Mr. Harden allegedly developed lumbar and cervical radiculopathy from 

performing heavy manual labor at Advance. Advance denied the claim, asserting 

defenses of notice and causation. 

On September 4, 2019, Advance filed its Motion for Summary Judgment, a 

Statement of Undisputed Facts, and supporting affidavits. In its motion, Advance argued 

it was entitled to a judgment as a matter of law because Mr. Harden had produced 

insufficient proof of causation. 

The Court struck Mr. Harden's response to the motion because he failed to file it 

"not later than five days before the hearing" as required by the Tennessee Rules of Civil 

Procedure. With the hearing scheduled for November 13, Mr. Harden filed his response 

on November 8. Advance moved to strike it as untimely. When excluding the 

1 
intermediate weekend and Veteran's Day holiday, Advance argued that Mr. Harden filed 

his response less than five business days before the hearing. The Court agreed. It reset the 

summary judgment hearing for January. 

On December 31, Mr. Harden filed a Motion for Voluntary Nonsuit Without 

Prejudice. Advance objected because Tennessee Compilation Rules and Regulations 

0800-02-21-.24 prohibits a voluntary dismissal if a summary judgment motion is 

pending. The Court agreed and denied Mr. Harden's motion. 

On January 30, the Court heard argument on the Motion for Summary Judgment. 

Mr. Harden orally moved the Court to reconsider its order striking his response and 

argued that he provided timely notice. Advance reiterated that the medical evidence did 

not establish causation. 

Facts 

Because it struck Mr. Harden's response, the Court must accept Advance's 

Statement of Undisputed Facts as true. So considered, the Court summarizes them as 

follows: 

1. In February 2018, Mr. Harden sought emergency treatment for numbness on the 

entire right side of his body, and a provider diagnosed an acute stroke. 

2. Four days later, he saw Dr. Daniel Magro in follow-up for his stroke symptoms, 

and Dr. Magro diagnosed transient cerebral ischemia, prediabetes, and acute rightsided weakness. 

3. Mr. Harden saw Dr. Magro for his stroke symptoms over the next five months. 

4. On July 3, Dr. Magro first diagnosed Mr. Harden with cervical and lumbar 

radiculopathy. 

5. Later that month, Mr. Harden asked Advance to file a workers' compensation 

claim, neither mentioning radiculopathy specifically, nor reporting a specific 

incident or date of injury. 

6. During the mediation process, Mr. Harden filed a letter from Dr. Magro in which 

the doctor stated Mr. Harden's lumbar and cervical radiculopathy is "likely 

secondary to 30+ years of hard manual labor." 

Analysis 

Summary judgment is appropriate if there is no genuine issue of material fact and 

the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04 

(20 19). As the party not bearing the burden of proof at trial, Advance may establish its 

entitlement to summary judgment either by (1) affirmatively negating an essential 

element of Mr. Harden's claim or (2) demonstrating that his evidence is insufficient to 

establish his claim. Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 

264 (Tenn. 2015). If Advance makes a properly supported motion, the burden of proof 

shifts to Mr. Harden to demonstrate the existence of a genuine issue of material fact. !d. 

2 
at 265. 

Advance properly supported its motion with a statement of undisputed facts with 

citations to the record. Mr. Harden did not timely respond. At the hearing, Mr. Harden 

asked the Court to reconsider its order striking his response as untimely. The Court 

declines. Tennessee Rules of Civil Procedure 6.01, and the law interpreting it, make clear 

the time restrictions on filings, and the Court followed those requirements. Moreover, Mr. 

Harden did not file a motion to reconsider the order striking his response before the 

summary judgment hearing. 

However, even if the Court were to consider Mr. Harden's response, the 

dispositive issue remains the same: whether he presented adequate proof that his injury 

arose primarily out of his employment. The Court holds he did not. 

Mr. Harden must show his alleged injury arose primarily out of his employment. 

An injury arises primarily out of the employment only if it contributed more than fifty 

percent (50%) in causing the injury when considering all causes. Tenn. Code Ann. § 50-

6-102(14)(A) and (B) (2019). This connection must be shown to a reasonable degree of 

medical certainty, which means that, in the opinion of the treating physician, it is more 

likely than not considering all causes as opposed to speculation or possibility. !d. at (C) 

and (D). Under the undisputed facts, Advance both negated the essential element of Mr. 

Harden's claim and demonstrated the evidence was insufficient to establish the causal 

relationship between his injury and his employment. 

In reaching this conclusion, the Court is guided by Gamble v. Miller Indus., Inc., 

2017 TN Wrk. Comp. App. Bd. LEXIS 16, (Feb 9, 2017). In Gamble, a physician said 

the employee's "complaints [were] "most likely secondary" to a work injury and added 

that the employee was "injured during a trauma [.]" (Emphasis added). The Board held 

this proof insufficient to establish causation because the physician "did not express an 

opinion ... whether the injury contributed more than 50% in causing the need for ... 

medical treatment." !d. at *13-14. 

Here, Dr. Magro stated that Mr. Harden's injury was "likely secondary to 30+ 

years of hard manual labor"; the same type of opinion found inadequate in Gamble. 

Therefore, the Court holds the medical evidence before the Court is insufficient to 

establish that Mr. Harden's injury arose primarily out of his employment. The Court 

grants Advance summary judgment as a matter of law. 

THEREFORE, IT IS ORDERED AS FOLLOWS: 

1. Mr. Harden's claim is dismissed with prejudice to its refiling. 

2. Absent appeal, this order shall become final thirty days after entry. 

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3. The Court taxes the $150.00 filing fee to Advance under Tennessee Compilation 

Rules and Regulations 0800-02-21-.06, payable to the Clerk within five business 

days of this order becoming final. 

4. Advance shall prepare and submit the SD-2 wi the Clerk within ten business 

days ofthe date of judgment. 

ENTERED February 13, 2020. \ 

\ 

Compensation Claims 

CERTIFICATE OF SERVICE 

I certify that a copy of this Order was sent as indicated on February 13, 2020. 

Name Mail 

Christopher L. Taylor, 

Employee's Attorney 

Paul T. Nicks, 

Employer's Attorney 

Email Service Sent To: 

X ctaylor@taylortoon.com 

sreynolds@taylortoon.com 

X pnicks@travelers.com 

jschmidt@travelers.com 

PENN SHRUM, COURT CLERK 

W c.courtclerk@tn.gov 

4 
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.

Compensation Hearing Order Right to Appeal:

If you disagree with this Compensation Hearing Order, you may appeal to the Workers’ 

Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’ 

Compensation Appeals Board, you must:

1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the 

Clerk of the Court of Workers’ Compensation Claims within thirty calendar days of the 

date the compensation hearing order was filed. When filing the Notice of Appeal, you 

must serve a copy upon the opposing party (or attorney, if represented). 

2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten 

calendar days after filing of the Notice of Appeal. Payments can be made in-person at 

any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the 

alternative, you may file an Affidavit of Indigency (form available on the Bureau’s 

website or any Bureau office) seeking a waiver of the filing fee. You must file the fullycompleted Affidavit of Indigency within ten calendar days of filing the Notice of 

Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will 

result in dismissal of your appeal.

3. You bear the responsibility of ensuring a complete record on appeal. You may request 

from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court 

reporter must prepare a transcript and file it with the court clerk within fifteen calendar 

days of the filing the Notice of Appeal. Alternatively, you may file a statement of the 

evidence prepared jointly by both parties within fifteen calendar days of the filing of the 

Notice of Appeal. The statement of the evidence must convey a complete and accurate 

account of the hearing. The Workers’ Compensation Judge must approve the statement 

of the evidence before the record is submitted to the Appeals Board. If the Appeals 

Board is called upon to review testimony or other proof concerning factual matters, the 

absence of a transcript or statement of the evidence can be a significant obstacle to 

meaningful appellate review.

4. After the Workers’ Compensation Judge approves the record and the court clerk transmits 

it to the Appeals Board, a docketing notice will be sent to the parties. The appealing 

party has fifteen calendar days after the date of that notice to submit a brief to the 

Appeals Board. See the Practices and Procedures of the Workers’ Compensation 

Appeals Board. 

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing 

Order must be final and you must comply with the Tennessee Rules of Appellate 

Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s 

Order will become final by operation of law thirty calendar days after entry. See Tenn. 

Code Ann. § 50-6-239(c)(7).
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082 

NOTICE OF APPEAL 

Tennessee Bureau of Workers’ Compensation

www.tn.gov/workforce/injuries-at-work/ 

wc.courtclerk@tn.gov | 1-800-332-2667 

Docket No.: ________________________

State File No.: ______________________ 

Date of Injury: _____________________ 

___________________________________________________________________________ 

Employee

v.

___________________________________________________________________________ 

Employer

Notice is given that ____________________________________________________________________ 

[List name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the 

Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date filestamped on the first page of the order(s) being appealed):

□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________

□ Compensation Order filed on__________________ □ Other Order filed on_____________________

issued by Judge _________________________________________________________________________. 

Statement of the Issues on Appeal 

Provide a short and plain statement of the issues on appeal or basis for relief on appeal: 

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

Parties

Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee 

Address: ________________________________________________________ Phone: ___________________ 

Email: __________________________________________________________ 

Attorney’s Name: ______________________________________________ BPR#: _______________________ 

Attorney’s Email: ______________________________________________ Phone: _______________________ 

Attorney’s Address: _________________________________________________________________________ 

* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082 

Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________ 

Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee 

Appellee’s Address: ______________________________________________ Phone: ____________________ 

Email: _________________________________________________________ 

Attorney’s Name: _____________________________________________ BPR#: ________________________ 

Attorney’s Email: _____________________________________________ Phone: _______________________ 

Attorney’s Address: _________________________________________________________________________ 

* Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE 

I, _____________________________________________________________, certify that I have forwarded a 

true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described 

in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this 

case on this the __________ day of ___________________________________, 20 ____. 

 ______________________________________________ 

[Signature of appellant or attorney for appellant] 
.... ·:rjjj{:;·· .. r~~r;" ~r_. ,Wr~~1~\ , ~\ 

=~~~GAl(:~ lll• r.-1 \ ll01i I •!!! : 

',·.'!1~~~ "'~ . . / · ·. ·'" ·· •• ••• '17 • • \; ,,.· .............. Tennessee Bureau of Workers' Compensation 

220 French Landing Drive, 1-B 

Nashville, TN 37243-1002 

800-332-2667 

AFFIDAVIT OF INDIGENCY 

I, . having been duly sworn according to law, make oath that 

because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be 

waived. The following facts support my poverty. 

1. Full Name: ___________ _ 2. Address:-------------

3. Telephone Number:--------- 4. Date of Birth: __________ _ 

5. Names and Ages of All Dependents: 

----------------- Relationship:-------------

----------------- Relationship:-------------

----------------- Relationship:-------------

----------------- Relationship: ____________ _ 

6. I am employed by:-----------------------------

My employer's address is:-------------------------

My employer's phone number is: -----------------------

7. My present monthly household income, after federal income and social security taxes are deducted, is: 

$ _______ _ 

8. I receive or expect to receive money from the following sources: 

AFDC $ per month beginning 

SSI $ per month beginning 

Retirement $ per month beginning 

Disability $ per month beginning 

Unemployment $ per month beginning 

Worker's Comp.$ per month beginning 

Other $ per month beginning 

LB-11 08 (REV 11/15) RDA 11082 
9. My expenses are: 

RenUHouse Payment $ 

Groceries $ 

Electricity $ 

Water $ 

Gas $ 

Transportation $ 

Car $ 

per month 

per month 

per month 

per month 

per month 

per month 

per month 

Medical/Dental $ 

Telephone $ 

School Supplies $ 

Clothing $ 

Child Care $ 

Child Support $ 

_____ per month 

_____ per month 

_____ per month 

_____ per month 

_____ per month 

_____ per month 

Other $ per month (describe: 

10. Assets: 

Automobile $ ___ _ 

Checking/Savings Acct. $ _ ___ _ 

House 

Other 

11 . My debts are: 

Amount Owed 

$ ___ _ 

$ ___ _ 

To Whom 

(FMV) ----------

(FMV) ----------

Describe: __________ _ 

I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete 

and that I am financially unable to pay the costs of this appeal. 

APPELLANT 

Sworn and subscribed before me, a notary public, this 

___ dayof ____________ ,20 __ _ 

NOTARY PUBLIC 

My Commission Expires: _______ _ 

LB-1108 (REV 11115) RDA 11082