TENNESSEE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT KINGSPORT 

Susan Evans, 

Employee, 

v. 

Home Depot, 

Employer, 

And 

Liberty Mutual Ins. Co., 

Carrier. 

) Docket No. 2015-02-0520 

) 

) 

) State File No. 272-2016 

) 

) 

) Judge Brian K. Addington 

) 

) 

) 

) 

ORDER GRANTING EMPLOYER'S MOTION FOR SUMMARY JUDGMENT 

This matter came before the Court on February 23, 2017, upon Home Depot's 

Motion for Summary Judgment filed pursuant to Rule 56 of the Tennessee Rules of Civil 

Procedure. Home Depot's attorney, Jess Maples, argued in favor of the Motion, and Ms. 

Evan's attorney, Ameesh Kherani, opposed. 

In support of its Motion, Home Depot asserts that Ms. Evans failed to timely 

disclose her medical experts by the deadlines set forth in the Court's twice-amended 

Scheduling Order. Moreover, the Court indicated in its last Scheduling Order that 

deadlines would not be extended further. As a result of her failure to timely identify 

medical experts, Home Depot argues that Ms. Evans cannot properly offer the required 

expert medical proof in support of her claim; consequently, its Summary Judgment 

Motion should be granted. 

Ms. Evans argues that Summary Judgment is historically disfavored in workers' 

compensation claims. In addition, she asserts that multiple disputed issues of material fact 

exist in this matter, as evidenced by Home Depot's contesting of the claim from its 
inception. Ms. Evans contends that Home Depot's Motion for Summary Judgment should 

be denied. 

History of Claim 

The Court notes that Home Depot filed its Statement of Undisputed Material Facts 

contemporaneously with its Summary Judgment Motion on January 6, 2017. Ms. Evans 

responded with multiple motions, including a 1) Motion to Strike the Summary Judgment 

Motion; 2) Motion to Quash the Notice of Hearing on the Summary Judgment Motion; 3) 

Motion for Continuance and Amend Scheduling Order; and 4) Motion to Enlarge Time to 

Respond to the Summary Judgment Motion. 

The Court resolved the disputes via an Order dated January 17, 2017. In its Order, 

the Court noted the troubling history of this case, which included multiple discovery 

delays, a previous rescheduling of the Compensation Hearing, and the fact that the parties 

failed to schedule post-discovery alternative dispute resolution (ADR) as the Court 

required. 

The Court refused to expand the discovery deadlines, finding that the parties had 

sutlicient time to obtain discovery. The Court also declined to strike the Summary 

Judgment Motion. Instead, it allowed the parties an opportunity to agree on a date for the 

Motion hearing. They were to report the agreed date to the Court's Staff Attorney on or 

before January 21, 2017. 

On January 19,2017, Ms. Evans filed a Form C-32 Standard Form Medical Report 

completed by Dr. William Kennedy. Ms. Evans included a Notice of Intent to Use the 

report in lieu of the doctor's deposition, as well as an affidavit signed by her attorney 

verifying the contents of the report. 

Afterward, the parties timely provided the Court with potential dates for the 

Summary Judgment Hearing, the latest of which was February 23, 2017. However, the 

Court first required that ADR be completed before the parties set the Summary Judgment 

Hearing. The parties then notified the Court that they had set the ADR for February 17, 

2017. The Court responded by setting the Summary Judgment Motion Hearing for 

February 23, 2017. The Court Clerk sent the parties a Notice of Motion Hearing on 

January 26, 20 17. 

Ms. Evans filed her Response to the Summary Judgment Motion, together with her 

Response to Employer's Statement of Undisputed Material Facts, on February 21, 2017-

two days before the hearing. The Court conducted the hearing as scheduled on February 

23, 2017. 
Analysis 

The Court finds that Ms. Evans' repeated failure to abide by the Scheduling 

Orders of this Court, which were amended multiple times in order to accommodate her, 

show an indifference on her part to the Court's and opposing counsel's time. 

The Court also notes that Ms. Evans filed Dr. Kennedy's C-32 Report after the 

close of discovery, effectively foreclosing Home Depot's opportunity to depose Dr. 

Kennedy within a reasonable time. In its January 17, 2017 Order, the Court made it plain 

to all parties that discovery deadlines would not be extended further. 

Ms. Evans argues that, pursuant to Tennessee Code Annotated section 50-6-235 

(c)(2) (2016), Dr. Kennedy's C-32, along with a notice of intent to use, may be provided 

to opposing counsel "not less than twenty (20) days before the date of intended use." 

However, even if timely filed, a C-32 may be excluded from substantive evidence by the 

Court, if it is submitted in violation of a scheduling order and would otherwise delay the 

case. Edwards v. Engstrom Servs., No. E2014-01777-SC-R3-WC-, 2015 TN LEXIS 747, 

at *23 (Aug. 11, 2015). 

The Court previously admonished the parties that the discovery deadlines in this 

matter would not be expanded, and the Court will adhere to its decision. Consequently, 

the Court will not accept Ms. Evans' proffered testimony of Dr. Kennedy. 

Rule 56.03 of the Tennessee Rules of Civil Procedure (2016) requires that: 

Any party opposing the motion for summary judgment must, not later than 

jive days before the hearing, serve and file a response to each fact set for 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. 

(Emphasis added.) 

Summary judgment is appropriate when 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 

judgment as a matter of law." Tenn. R. Civ. P. 56.04; see also Martin v. Norfolk S. Ry. 

Co., 271 S. W.3d 76, 83 (Tenn. 2008). The burden is on the moving party of 

demonstrating both that no genuine issue of material fact exists and that it is entitled to a 

judgment as a matter oflaw. !d. at 83. 
Home Depot cited as fact that Ms. Evans failed to serve it with any expert medical 

opinion in writing that supports her claim that her alleged injuries were related to her 

work activities with Home Depot. Further, it cited as fact that the time to make those 

disclosures had passed per Court Order and would not be extended. Additionally, it 

argued since Tennessee Code Annotated§ 50-6-102(14)(D) (2016) requires a showing by 

a physician to a reasonable degree of medical certainty that an injury arose primarily out 

of and in the course and scope of employment, it is entitled to summary judgment as a 

matter of law because the facts presented negated an essential element of Ms. Evan's 

claim. 

Since Home Depot satisfied its burden of proof, then Ms. Evans must, as the 

nonmoving party, demonstrate there is a genuine, material factual dispute, and failing to 

do so will result in the motion for summary judgment being granted. See Byrd v. Hall, 

847 S.W.2d208, 211 (Tenn. 1993). 

Ms. Evans did not comply with the requirement of Rule 56.03 that she serve and 

file her responses to each fact set forth by the movant no later than five days before the 

hearing. She filed her response two days before the hearing. Moreover, she missed the 

deadline despite the fact that the Court allowed the parties to set the Summary Judgment 

Motion Hearing at their discretion. Also, Ms. Evans was aware, as of January 17, 2017, 

that she would have to respond to Home Depot's Summary Judgment Motion, which the 

Court refused to strike. Despite all of these facts, Ms. Evans failed to act timely, even 

though she had forty-two days to respond to the Motion. The Court finds her failure 

unacceptable, especially in consideration of her other well-documented delays in this 

case. 

The Court finds that Ms. Evans failed to timely respond to Home Depot's 

Summary Judgment Motion, as required by Rule 56.03 of the Tennessee Rules of Civil 

Procedure. The deadlines set forth in the Rule are not mere suggestions; they are 

requirements, and parties fail to abide by those requirements at their peril. Consequently, 

the Court holds that no genuine issue of material fact exists in this case, and the Home 

Depot is entitled to Summary Judgment. 

For the foregoing reasons, Home Depot's Summary Judgment Motion is granted. 

Ms. Evans' case is dismissed with prejudice. Home Depot shall pay the $150.00 filing fee 

under Tennessee Compilation Rules and Regulations 0800-02-21-.07 (2016), for which 

execution may issue as necessary. Home Depot shall additionally file an SD-1 within ten 

days of entry of this Judgment. 

IT IS SO ORDERED. 

ENTERED this the 7th day of March, 2017. 
/s/ Brian K. Addington 

Brian K. Addington 

Workers' Compensation Judge 

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the foregoing Order was sent to the 

following recipients by the following methods of service on this the ih day of March, 

2017. 

Name Certified 

Mail 

Ameesh Kberani, 

Employee's Attorney 

Adam Rust, 

Employer's Attorney 

Via Via Sent To: 

Fax Email 

X akberani.dhdlaw@gmail.com 

X Adam.rust@leitnerfirru.com 

Jess.maples@leitnerfim.com 

PENNY SHRUM, COURT CLERK 

Court of Workers' Compensation Claims