TENNESSEE BUREAU OF WORKERS' COMPENSATION IN THE COURT OF WORKERS' COMPENSATION CLAIMS AT KINGSPORT
Susan Evans, Employee,



### v.
HomeDepot, Employer, And LibertyMutual Ins. Co., Carrier. ) DocketNo. 2015-02-0520 ) ) ) State File No. 272-2016 ) ) ) Judge Brian K. Addington ) ) ) )

ORDERGRANTING EMPLOYER'SMOTIONFORSUMMARYJUDGMENT

This matter came before the Court on February 23, 2017, upon Home Depot's Motion for Summary Judgment filed pursuant to Rule 56 ofthe Tennessee Rules ofCivil Procedure. Home Depot's attorney, Jess Maples, argued in favor ofthe 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 ofher 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 shouldbe granted.

Ms. Evans argues that Summary Judgment is historically disfavored in workers' compensation claims. In addition, she asserts thatmultiple disputed issues ofmaterial fact exist in this matter, as evidenced by Home Depot's contesting of the claim from itsinception. Ms. Evans contends that Home Depot's Motion for Summary Judgment should be denied.
History of Claim
The Courtnotes that Home Depot filed its Statement ofUndisputed Material Facts contemporaneously with its Summary Judgment Motion on January 6, 2017. Ms. Evans responded with multiple motions, including a 1) Motionto Strike the SummaryJudgment Motion; 2) Motion to Quash the Notice ofHearing on the Summary JudgmentMotion; 3) Motion for Continuance andAmend Scheduling Order; and 4) Motionto Enlarge Time to Respondto the SummaryJudgmentMotion.

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, aprevious rescheduling ofthe CompensationHearing, and the fact thattheparties 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 StaffAttorney on or beforeJanuary 21, 2017.

On January 19,2017,Ms. Evans filed aForm C-32 StandardFormMedicalReport completed by Dr. William Kennedy. Ms. Evans included a Notice ofIntent to Use the report in lieu ofthe doctor's deposition, as well as an affidavit signed by her attorney verifyingthe contents ofthe report. Afterward, the parties timely provided the Court with potential dates for the Summary Judgment Hearing, the latest ofwhich was February 23, 2017. However, the Court first required thatADRbe completedbefore the parties setthe SummaryJudgment 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, 2017.

Ms. Evans filed herResponse to the Summary JudgmentMotion, togetherwithher Response to Employer's Statement ofUndisputed 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 ofthis Court, which were amended multiple times in order to accommodate her, showan indifference onherpartto the Court's and opposingcounsel'stime.

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 notbe 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 ofintent to use, may be provided to opposing counsel "not less than twenty (20) days before the date of intended use." However, even iftimely filed, a C-32 may be excluded from substantive evidence by the Court, ifit is submitted in violation ofa 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 Courtwill not acceptMs. Evans' profferedtestimony ofDr. Kennedy.

Rule 56.03 ofthe TennesseeRules ofCivilProcedure (2016) requires that: Any party opposing the motion for summaryjudgmentmust, not later than jivedays before the hearing, serve and file aresponse 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 ofruling 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 summaryjudgment. (Emphasis added.) Summaryjudgment 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 oflaw." 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 ofmaterial fact exists and that it is entitled to a judgmentas a matteroflaw.

### !d. at 83.Home Depot cited as fact that Ms. Evans failed to serve it with any expertmedical 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 showingby
a physician to areasonable degree ofmedical certainty that an injury arose primarily out ofand in the course and scope ofemployment, it is entitled to summaryjudgment as a matter oflaw because the facts presented negated an essential element ofMs. Evan's claim.

Since Home Depot satisfied its burden ofproof, 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 summaryjudgment being granted. See Byrdv. Hall, 847 S.W.2d208, 211 (Tenn. 1993).

Ms. Evans did not comply with the requirement ofRule 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 theparties to setthe Summary Judgment Motion Hearing at their discretion. Also, Ms. Evans was aware, as ofJanuary 17, 2017, that she would have to respond to Home Depot's Summary Judgment Motion, which the Court refused to strike. Despite all ofthese facts, Ms. Evans failed to act timely, even though she hadforty-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 ofthe Tennessee Rules ofCivil Procedure. The deadlines set forth in the Rule are not mere suggestions; they are requirements, andparties fail to abide by those requirements at theirperil. Consequently, the Court holds that no genuine issue ofmaterial fact exists in this case, and the Home Depotis entitled to SummaryJudgment.

For the foregoing reasons, Home Depot's Summary Judgment Motion is granted. Ms. Evans' case is dismissedwithprejudice. Home Depot shallpay 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 ofentry ofthis Judgment.

ITIS SO ORDERED.

ENTEREDthis the7th day ofMarch, 2017./s/ Brian K. Addington BrianK. Addington Workers' CompensationJudge

CERTIFICATE OFSERVICE

Ihereby certify that atrue and correct copy ofthe foregoing Orderwas sent to the following recipients by the following methods ofservice on this the 

### ih day ofMarch, 2017.

Name Certified Mail Ameesh Kberani, Employee'sAttorney Adam Rust, Employer'sAttorney Via Via SentTo: Fax Email X akberani.dhdlaw@gmail.com

X Adam.rust@leitnerfirru.com Jess.maples@leitnerfim.com

PENNY SHRUM, COURTCLERK CourtofWorkers' Compensation Claims