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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

Althea Myers, ) Docket No. 2018-06-1243

Employee, )

v. ) State File No. 43894-2018

Tyson Foods, Inc., )

 Self-insured Employer. ) Judge Dale Tipps

COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT

This matter came before the Court on Tyson Foods, Inc.’s Motion for Summary 

Judgment. The issue is whether Tyson is entitled to summary judgment on grounds that

Ms. Myers’s injury did not arise primarily out and in the course and scope of her 

employment, an essential element of her claim. For the reasons below, the Court grants 

Tyson’s motion.

Procedural History

Ms. Myers alleged she suffered a work-related injury to her right knee on April 5, 

2018. Tyson denied the claim, and Ms. Myers filed a Petition for Benefit Determination 

seeking medical benefits.

Following an expedited hearing, the Court found that Ms. Myers was not likely to 

establish at a hearing on the merits that her knee symptoms arose primarily out of her 

employment. However, it ordered Tyson to authorize an appointment with Dr. David 

Moore, whom Ms. Myers had selected from a panel. Dr. Moore declined to see Ms. 

Myers as a patient, so she selected Dr. Damon Petty as her authorized physician.

After Dr. Petty examined Ms. Myers, Tyson filed this Motion for Summary 

Judgment. Ms. Myers filed no response but participated in the telephonic hearing on

May 21, 2019.

FILED

May 23, 2019

08:22 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS
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Facts

Tyson filed a statement of undisputed material facts with citations to the record in 

compliance with Tennessee Rules of Civil Procedure 56.03. Because Ms. Myers failed to 

file a response to the statement, the Court deems them admitted and summarizes them as 

follows:

1. Ms. Myers did not sustain an injury to her right knee that arose primarily out of 

and in the course and scope of employment on April 5, 2018.

2. Ms. Myers’s knee pain is due to patellofemoral arthritis.

3. The April 5, 2018 incident at work did not contribute more than fifty percent in 

causing the need for medical treatment.

Based on these facts, Tyson argued the Court should grant summary judgment 

because it affirmatively negated an essential element of Ms. Myers’s claim – that her 

injury was primarily caused by a workplace fall – and that the facts are insufficient for

Ms. Myers to prove this element.

Although Ms. Myers filed no response, she participated in the hearing. She stated 

she could not understand how she could fall and have arthritis in her knee without these

two facts being related.

Law and Analysis

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 (2018).

 As the moving party, Tyson must do one of two things to prevail on its motion: (1) 

submit affirmative evidence that negates an essential element of the Ms. Myers’s claim, 

or (2) demonstrate that Ms. Myers’s evidence is insufficient to establish an essential 

element of her claim. Tenn. Code Ann. § 20-16-101 (2018); see also Rye v. Women’s 

Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Tyson is 

successful in meeting this burden, Ms. Myers must then establish that the record contains 

specific facts upon which the Court could rule in her favor. Rye, at 265.

The essential element at issue in this case is that Ms. Myers must demonstrate that 

she suffered “an injury by accident . . . arising primarily out of and in the course and 

scope of employment, that causes death, disablement or the need for medical treatment of 

the employee.” Tenn. Code Ann. § 50-6-102(14). 

The undisputed facts, derived from Dr. Petty’s affidavit, are that Ms. Myers 

suffers from arthritis that did not arise primarily out of and in the course and scope of her 

employment. Thus, Tyson has met its burden of negating an essential element of the 
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claim. This means Ms. Myers must show that the record contains specific facts upon 

which the Court could find in her favor. 

As noted above, Ms. Myers filed no response to the Statement of Undisputed 

Facts, provided no additional evidence, and made no citations to the record to refute the 

facts put forward by Tyson. Ms. Myers’s belief that there must be some connection 

between her arthritis and her workplace fall is understandable. However, the law does 

not allow the Court to assume the existence of medical causation or substitute the Court’s

judgment for Dr. Petty’s professional medical opinion. In the absence of actual evidence, 

Ms. Myers’s conjecture is insufficient to establish that her condition arose primarily out 

of her employment. 

Ms. Myers’s evidence is therefore insufficient to establish an essential element of 

her claim, and the Court must hold that Tyson is entitled to summary judgment as a 

matter of law.

IT IS, THEREFORE, ORDERED as follows: 

1. Tyson’s Motion for Summary Judgment is granted, and Ms. Myers’s claim is 

dismissed with prejudice to its refiling. 

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

3. The Court taxes the $150.00 filing fee to Tyson Foods, Inc. under Tennessee 

Compilation Rules and Regulations 0800-02-21-.07 payable to the Clerk within 

five days of this order becoming final. 

4. Tyson shall prepare and submit the SD-2 with the Clerk within ten days of the date 

of judgment. 

ENTERED May 23rd, 2019. 

______________________________________ 

 Judge Dale A. Tipps

Court of Workers’ Compensation Claims 
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CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent to the following recipients by these

methods of service on May 23rd, 2019.

Name Certified 

Mail

Via

Fax

Via 

Email

Service sent to:

Althea Myers, SelfRepresented EmployeeX X 808 Hillmore Dr., 

Nashville TN 37218

thea63myers@gmail.com

Michael Haynie, 

Employer’s Attorney

X mhaynie@manierherod.com 

______________________________________

Penny Shrum, Court Clerk

Wc.courtclerk@tn.gov
II 

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Compensation Hearing Order Right to Appeal: 

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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: "Compensation Hearing 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 ofthe 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 lndigency 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). 

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


II 

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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 Camp.$ per month beginning 

Other $ per month beginning 

LB-1108 (REV 11/15) RDA 11082 

I. 

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9. My expenses are: ! ~ 

' 

Rent/House Payment $ 

Groceries $ 

Electricity $ 

Water $ 

Gas $ 

Transportation $ 

Car $ 

per month 

per month 

per month 

per month 

per month 

per month 

per month 

Med icai/Dental $ 

Telephone $ 

School Supplies $ 

Clothing $ 

Child Care $ 

Child Support $ 

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_ ____ 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 11/15) RDA 11082