1

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Dan Cody ) Docket No. 2020-02-0545

)

v. ) State File No. 13453-2020

)

G.UB.MK Constructors, et al. )

)

)

Appeal from the Court of Workers’ ) Heard September 28, 2021

Compensation Claims ) via Microsoft Teams

Brian K. Addington, Judge )

Affirmed and Remanded

The employee alleged he suffered an occupational disease due to workplace exposure to 

coal fly ash. Following unsuccessful mediation, the employer filed a motion to dismiss or, 

in the alternative, for summary judgment, alleging the employee “cannot establish that he 

has an occupational illness or disease.” After a period of written discovery, the taking of 

an expert medical deposition, and several motion hearings, the trial court conducted a 

hearing on the employer’s motion and requested supplemental briefs. Thereafter, the trial 

court denied the employer’s motion for summary judgment, concluding the employer did 

not establish the insufficiency of the employee’s proof as a matter of law and there were 

genuine issues of material fact precluding summary judgment. The employer has appealed. 

Upon careful consideration of the record, we affirm the trial court’s order and remand the 

case.

Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which 

Judge David F. Hensley and Judge Pele I. Godkin joined.

Karen G. Crutchfield and W. Tyler Chastain, Knoxville, Tennessee, for the employerappellant, G.UB.MK Constructors

John Dupree and Jim K. Scott, Knoxville, Tennessee, for the employee-appellee, Dan Cody

Factual and Procedural Background

Dan Cody (“Employee”) has worked for G.UB.MK Constructors (“Employer”) as 

a truck driver since October 2009. Part of his duties involved being at a worksite called 

FILED

Oct 21, 2021

01:55 PM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD
2

the Kingston Fly Ash Recovery Site.1 In February 2020, Employer filed a petition with 

the Bureau of Workers’ Compensation noting that Employee was alleging an “occupational 

injury” due to exposure to “coal fly ash.”2

 Employer’s petition listed a date of injury as 

June 27, 2019. Employer asked for “dismissal of this claim without prejudice.” On August 

19, 2020, when neither Employee nor his attorneys appeared for a second scheduling 

hearing, the trial court entered an order dismissing the claim without prejudice. The 

following day, Employee filed a petition listing his date of injury as September 22, 2016, 

and alleging: (1) he suffered an occupational injury due to his alleged exposure to fly ash

at work; (2) he had been placed at maximum medical improvement by a physician; and (3) 

he been given a permanent medical impairment rating by his physician.

Thereafter, a dispute certification notice was issued that listed multiple disputed 

issues, including the compensability of Employee’s claim, his entitlement to medical 

benefits, and whether he is entitled to temporary or permanent disability benefits in the 

absence of any proof of a partial or total incapacity for work. Employer then filed a motion 

to dismiss or, in the alternative, for summary judgment arguing, in part, that because 

Employee continued to work for Employer full time, he had not sustained a compensable 

injury as defined in Tennessee Code Annotated section 50-6-303(a)(1).

After the filing of Employer’s motion to dismiss or for summary judgment, 

Employee filed a motion to amend his petition to specifically allege a “partial loss of the 

capacity to work.” The trial court granted Employee’s motion to amend his petition and 

referred the case back to the Bureau’s mediation program. Following the issuance of a

second dispute certification notice, Employer renewed its motion to dismiss or for 

summary judgment.

Following a period of discovery, including the deposition of Dr. Nicholas 

Xenopoulos, Employee filed responses to Employer’s motion and its statement of 

undisputed facts. Employer filed motions to exclude the “declarations and opinions” of 

the two medical experts upon which Employee relied, and Employee filed a motion to 

continue the hearing the court had set to address Employer’s motion to dismiss or for 

summary judgment. The trial court denied both motions.

During the telephonic hearing on Employer’s motion to dismiss or for summary 

judgment, counsel for Employer asserted that because Employee continued to work for 

1 In December 2008, a dike surrounding an ash containment dewatering pond in Kingston, Tennessee failed, 

resulting in approximately 5.4 million cubic yards of coal ash being released. See “EPA Response to 

Kingston TVA Coal Ash Spill,” https://www.epa.gov/tn/epa-response-kingston-tva-coal-ash-spill (last 

visited Aug. 8, 2021).

2 Coal ash, also called fly ash, is “a very fine powdery material composed mostly of silica made from the 

burning of finely ground coal in a boiler.” See “What is Coal Ash?” https://www.epa.gov/coalash/coalash-basics (last visited Oct. 18, 2021).
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Employer full time with no restrictions, there had been no “injury” as that term is defined 

with respect to occupational diseases in Tennessee’s Workers’ Compensation Law.

Counsel specifically asked the trial court to dismiss Employee’s case “without prejudice 

on the grounds that [Employee] is still working full time.” In response, Employee’s 

counsel argued that Employee had alleged and properly reported an occupational disease 

caused by workplace exposure to fly ash, that Employer had not negated an essential 

element of Employee’s claim, and that Employee is entitled to medical benefits under 

Tennessee’s Workers’ Compensation Law even if there is no evidence of a vocational 

disability. Employee’s counsel further argued that Employee had missed time from work 

and was entitled to temporary total disability benefits. During rebuttal argument, 

Employer’s counsel asserted Employer had negated an essential element of Employee’s 

claim because Employee had not established a partial or total incapacity to work as required 

by Tennessee Code Annotated section 50-6-303(a)(1).

After the motion hearing, the trial court asked the parties to submit briefs addressing 

the Tennessee Supreme Court’s decision in Ingram v. Aetna Cas. & Sur. Co., 876 S.W.2d 

91 (Tenn. 1994). Thereafter, the trial court issued an order denying Employer’s motion for 

summary judgment. Employer has appealed.

Standard of Review

The standard we apply in reviewing a trial court’s decision presumes the court’s 

factual findings are correct unless the preponderance of the evidence is otherwise. See

Tenn. Code Ann. § 50-6-239(c)(7) (2020). The interpretation and application of statutes 

and rules are questions of law that are reviewed de novo with no presumption of correctness 

afforded the trial court’s conclusions. See Mansell v. Bridgestone Firestone N. Am. Tire, 

LLC, 417 S.W.3d 393, 399 (Tenn. 2013). When evaluating a trial court’s decision

regarding a motion to dismiss filed pursuant to Tenn. R. Civ. P. 12.02(6), we must review 

the trial court’s determination de novo and consider whether, assuming the truth of all 

averments in the petition, the employee can prove no set of facts that would warrant relief. 

Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999). Moreover, a trial court’s ruling on a 

motion for summary judgment is reviewed de novo with no presumption of correctness. 

Wallis v. Brainerd Baptist Church, 509 S.W.3d 886, 895 (Tenn. 2016) (“[W]e make a fresh 

determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil 

Procedure have been satisfied.”). We are also 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 (2020).

Analysis

On appeal, Employer raises several issues that we have combined and restated as 

follows: (1) whether the trial court erred in finding that “Employee . . . has a compensable 
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occupational disease claim” pursuant to Tennessee law; and (2) whether the trial court erred 

in relying on the Tennessee Supreme Court’s decision in Ingram v. Aetna Cas. & Sur. Co.

Additionally, there are two issues implicated by Employer’s motion and the 

statutory language on which Employer has relied. First, Employer’s motion necessitates a 

brief discussion of the standards of proof required for a motion to dismiss filed pursuant to 

Rule 12.02 of the Tennessee Rules of Civil Procedure as opposed to the standards of proof 

required for a motion for summary judgment filed pursuant to Rule 56 of the Tennessee 

Rules of Civil Procedure.

Second, we must address whether the phrase “shall be treated as the happening of 

an injury by accident” in Tennessee Code Annotated section 50-6-303(a)(1) was intended 

to prohibit an employee from seeking medical benefits for an alleged occupational disease 

in circumstances where there has been no “partial or total incapacity for work.” If 

Employer’s interpretation of section 50-6-303(a)(1) is correct, then no employee can be 

deemed to have suffered a compensable occupational disease as defined in Tennessee’s 

Workers’ Compensation Law until Employee shows a partial or total incapacity for work. 

This would, in effect, insulate employers from having to initiate medical benefits in any 

occupational disease claim until the employee has experienced such an incapacity for work. 

Employee argues Employer’s interpretation is incorrect, adding that it would be unjust to 

excuse employers from providing medical benefits in occupational disease claims where 

the employee has not yet experienced a “partial or total incapacity to work” due to the 

alleged occupational disease.3

Employer’s Motion to Dismiss or for Summary Judgment

In the first paragraph of its motion, Employer cited Rules 12 and 56 of the Tennessee 

Rules of Civil Procedure, as well as unspecified portions of Tennessee’s Workers’ 

Compensation Law. In essence, Employer argued in its motion that an employee cannot 

assert a claim for workers’ compensation benefits arising from an alleged occupational 

disease until there has been a “partial or total incapacity for work” as stated in Tennessee 

Code Annotated section 50-6-303(a)(1) and, thus, the petition is subject to dismissal

because it is, at best, prematurely filed. Section 303(a)(1) provides as follows:

3 When the 2013 Workers’ Compensation Reform Act was passed, section 50-6-301, which defined the 

term “occupational diseases,” was eliminated, and section 50-6-102(14), which defines the word “injury,”

was amended to include occupational diseases. See Tenn. Code Ann. § 50-6-102(14) (2014). Thus, the 

reference in section 50-6-303(a)(1) to section 50-6-301 is problematic to the extent it references a statute 

that was deleted for all cases with dates of injury after July 1, 2014. See Tenn. Code Ann. § 50-6-101 (“the 

Workers’ Compensation Law . . . shall be controlling . . . when the date of injury is on or after July 1, 

2014”). We conclude, however, that other than the phrase “as defined in § 50-6-301,” the remainder of 

section 50-6-303(a)(1) is applicable to cases in which the date of injury is on or after July 1, 2014.
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When the employer and employee are subject to this chapter, the partial or 

total incapacity for work or the death of an employee resulting from an 

occupational disease as defined in § 50-6-301 shall be treated as the 

happening of an injury by accident or death by accident, and the employee,

or in case of the employee’s death, the employee’s dependents, shall be 

entitled to compensation as provided in this chapter.

Tenn. Code Ann. § 50-6-303(a)(1).

A motion to dismiss for failure to state a claim upon which relief can be granted is 

used by defendants to test the sufficiency of the allegations in a petition, not the strength 

of a petitioner’s proof. Stein v. Davidson Hotel Co., 945 S.W.2d 714 (Tenn. 1997). A 

defendant who files a motion to dismiss in these circumstances “admits the truth of all the 

relevant and material allegations . . . but asserts these allegations fail to establish a cause 

of action.” Brown v. Tenn. Title Loans, Inc., 328 S.W.3d 850, 854 (Tenn. 2010). The 

Tennessee Supreme Court has addressed motions to dismiss filed pursuant to Rule 12.02(6) 

of the Tennessee Rules of Civil Procedure:

In considering a motion to dismiss, courts must construe the complaint 

liberally, presuming all factual allegations to be true and giving the plaintiff 

the benefit of all reasonable inferences. A trial court should grant a motion 

to dismiss only when it appears that the plaintiff can prove no set of facts in 

support of the claim that would entitle the plaintiff to relief. We review the 

trial court’s legal conclusions regarding the adequacy of the complaint de 

novo.

Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011) 

(internal quotations and citations omitted).

A motion for summary judgment, on the other hand, should be granted 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 a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The 

burden is on the party pursuing summary judgment to demonstrate both that no genuine 

issue of material fact exists and that the moving party is entitled to a judgment as a matter 

of law. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008). If the moving party 

makes a properly supported motion, the burden of production then shifts to the nonmoving 

party to demonstrate the existence of a genuine issue of material fact at the summary 

judgment stage. Rye v. Women’s Care Ctr. of Memphis, PLLC, 477 S.W.3d 235, 265 

(Tenn. 2015). Furthermore, “[a] fact is material ‘if it must be decided in order to resolve 

the substantive claim or defense at which the motion is directed.’” Akers v. Heritage Med. 

Assocs., P.C., No. M2017-02470-COA-R3-CV, 2019 Tenn. App. LEXIS 5, at *14 (Tenn. 

Ct. App. Jan. 4, 2019) (quoting Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). “A 
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‘genuine issue’ exists if ‘a reasonable [factfinder] could legitimately resolve that fact in 

favor of one side or the other.’” Akers, 2019 Tenn. App. LEXIS 5, at *15 (quoting Byrd, 

847 S.W.2d at 215).

In the present case, Employer asked the trial court during the motion hearing to 

dismiss Employee’s petition “without prejudice on the grounds that [Employee] is still 

working full time.” Later during the hearing, Employer asserted it had negated an essential 

element of Employee’s claim because Employee “continues to work without restrictions.” 

Hence, we interpret Employer’s motion and its arguments during the motion hearing to 

request either dismissal of Employee’s claim pursuant to Rule 12.02 or summary judgment 

pursuant to Rule 56. We conclude Employer is entitled to neither.

With respect to the motion to dismiss, Employer’s argument hinges on its 

interpretation of Tennessee Code Annotated section 50-6-303(a)(1) and its assertion that 

an occupational disease claim has not accrued until there has been a partial or total 

incapacity for work. However, in the present case, Employee filed a motion to amend his 

petition to allege he had “sustained a partial loss of the capacity to work.” The trial court 

granted that motion. Hence, the allegations of Employee’s amended petition include a 

claim that there has been partial incapacity to work as contemplated in section 303(a)(1). 

Assuming that allegation to be true, as we are required to do in the context of Employer’s 

motion to dismiss, it is clear Employee has stated a cause of action, and Employer is not 

entitled to dismissal of the claim pursuant to Rule 12.02.

With respect to Employer’s motion for summary judgment, the trial court concluded 

there were genuine issues of material fact concerning whether Employee has established a 

compensable occupational disease through expert medical proof and whether Employee 

has sustained a permanent vocational disability. As a result, it denied Employer’s motion. 

We conclude, on the other hand, that Employer failed to either negate an essential element 

of Employer’s claim or establish as a matter of law that Employee’s proof is insufficient to 

support a claim. Thus, in our view, Employer did not meet its initial burden of production 

under Rule 56 and, as a result, there was no shifting of the burden to Employee to show 

genuine issues of material fact.

Moreover, even if the burden of production had shifted under Rule 56, we agree 

with the trial court that Employee came forward with sufficient evidence to create one or 

more genuine issues of material fact. Dr. Nicholas Xenopoulos, an interventional 

cardiologist, offered a Rule 72 Declaration in which he stated that “it is more probable than 

not that [Employee’s] exposure to coal fly ash during his employment in the Kingston ash 

spill cleanup was a substantial contributing cause of or substantially contributed to the 

aggravation of his coronary artery disease.” In his Rule 72 Declaration, Dr. Theron 

Blickenstaff, board certified in occupational medicine, opined that “it is more probable 

than not that [Employee’s] exposure to coal fly ash during his employment in the Kingston 

ash spill cleanup was a substantial contributing cause of or substantially contributed to the 
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aggravation of” both the coronary artery disease and hypertension.4 In short, the

declarations of Dr. Xenopoulos and Dr. Blickenstaff create genuine issues of material fact 

as to whether workplace exposure to fly ash primarily caused, materially advanced, or 

permanently aggravated Employee’s medical conditions.

Applicability of Supreme Court Precedent

Next, Employer argues the trial court erred in relying on the Tennessee Supreme 

Court’s opinion in Ingram v. Aetna Casualty & Surety Co., 876 S.W.2d 91 (Tenn. 1994). 

In that case, the employee alleged he developed an occupational disease due to workplace 

exposure to asbestos-containing products. Id. at 92. He had been diagnosed by a 

pulmonologist with “benign asbestos pleural plaques.” Id. The parties stipulated that the 

employee was “not presently disabled” due to his condition, and the medical experts were 

unable to state with any degree of medical certainty if and when the employee would 

develop pulmonary dysfunction due to the occupational exposures. Id. at 92-93. The 

employee asked the court to order the employer to provide periodic pulmonary 

examinations, but the employer denied any liability for medical benefits and asserted the 

employee’s claim was premature. Id. at 93. In rejecting the employer’s argument in 

Ingram, the Supreme Court explained:

[W]e find that [the employee] is entitled to medical benefits, to be furnished 

by the employer, for the periodic evaluation of his pulmonary condition and 

any necessary subsequent treatment related to his occupational disease.

. . . .

There is no statutory or procedural prohibition to prevent [the employee] 

from filing a claim for disability benefits if, and when, his condition advances 

to the point that some compensable degree of disability may be established. 

The one-year statute of limitation on an injury involving an occupational 

disease does not begin to run until “after the beginning of the incapacity for 

work.” We find the plaintiff’s claim for disability benefits is not yet ripe for 

adjudication.

Id. at 93-94 (internal citation omitted).

We have previously concluded that “[r]eliance on precedent from the Tennessee 

Supreme Court is appropriate unless it is evident that the Supreme Court’s decision or 

rationale relied on a remedial interpretation of pre-July 1, 2014 statutes, that it relied on 

specific statutory language no longer contained in the Workers’ Compensation Law, and/or 

4 We offer no opinion as to whether these statements, standing alone, are sufficient to meet Employee’s 

burden of proof at trial.
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that it relied on an analysis that has since been addressed by the general assembly through 

statutory amendments.” McCord v. Advantage Human Resourcing, No. 2014-06-0063, 

2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *13 n.4 (Tenn. Workers’ Comp. App. Bd. 

Mar. 27, 2015). The language in section 50-6-303(a)(1) on which Employer relies is the 

same in all pertinent respects as the language on which the Tennessee Supreme Court relied

in Ingram.

5

 During oral argument, Employer argued that, because pre-reform law 

contained a specific section defining how to establish a causal link between workplace 

exposures and a disease, and that section was removed as a result of the 2013 Workers’ 

Compensation Reform Act, case law decided prior to the Reform Act must be disregarded. 

We disagree for several reasons.

First, there is nothing in the language of Ingram to suggest the Supreme Court relied 

on a remedial interpretation of the pre-reform law in interpreting the pertinent language in 

section 50-6-303(a)(1). Second, the Court in Ingram did not rely on section 50-6-301, 

which was removed by the Reform Act, in reaching its conclusion. Third, the legislature 

has not altered the relevant language in section 50-6-303(a)(1) since Ingram was decided.

Thus, we conclude the Supreme Court’s holding in Ingram remains viable after the passage 

of the Reform Act. In circumstances where an employee asserts that he or she suffers from 

an occupational disease due to workplace exposures and requests medical care from the 

employer, the employer is obligated pursuant to Tennessee Code Annotated sections 50-6-

204(a)(1)(A) and 50-6-204(a)(3)(i), as well as Tenn. Comp. R. & Regs. 0800-02-01-.06(1), 

to provide the employee a panel of physicians unless it asserts an affirmative defense it 

believes obviates the obligation to provide a panel.

6

 If the employer elects to deny the 

claim and declines to provide a panel, the employee can file an appropriate petition for 

benefits seeking an order for the initiation of medical benefits. In such circumstances, in 

accordance with the Supreme Court’s opinion in Ingram, the employee’s claim for 

temporary or permanent disability benefits accrues upon “the partial or total incapacity for 

work or the death of an employee” as stated in section 50-6-303(a)(1).7

5 The 1993 version of the Workers’ Compensation Law, in place when Ingram was decided, also provided 

that “the partial or total incapacity for work or the death of an employee resulting from an occupational 

disease as herein defined shall be treated as the happening of an injury by accident or death by accident.” 

Tenn. Code Ann. § 50-6-303(a)(1) (1993) (emphasis added).

 

6 An employer can assert defenses to such a claim and decline to provide a panel, but it bears the risks

associated with such a denial. See, e.g., Young v. Young Electric Co., No. 2015-06-0860, 2016 TN Wrk. 

Comp. App. Bd. LEXIS 24, at *16 (Tenn. Workers’ Comp. App. Bd. May 25, 2016) (“In circumstances 

where an employer refuses to provide medical treatment and/or denies the employee’s claim, such employer 

bears the risk of being held responsible for medical expenses incurred by the employee in the event the 

claim is deemed compensable.”).

7 Tenn. Comp. R. & Regs. 0800-02-01-.06(1) states: “Following receipt of notice of a workplace injury and 

the employee expressing a need for medical care, the employer shall, as soon as practicable but no later 

than three (3) business days after receipt of such request, provide the employee a panel of physicians as 

prescribed in [Tenn. Code Ann.] § 50-6-204.”
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Finally, Employer cites several more recent cases, including Shuler v. Eastman 

Chemical Co., No. E2016-02292-SC-R3-WC, 2017 Tenn. LEXIS 721 (Tenn. Workers’ 

Comp. Panel Nov. 17, 2017) and Lively ex rel. Lively v. Union Carbide Corp., E2012-

02136-WC-R3-WC, 2013 Tenn. LEXIS 642 (Tenn. Workers’ Comp. Panel Aug. 13, 2013) 

in support of its argument that an employee’s claim based on an occupational disease 

cannot result in an award of any workers’ compensation benefits until the beginning of a 

partial or total incapacity to work. In Shuler, the issue was whether the employee’s claim 

arose prior or subsequent to the effective date of the 2013 Workers’ Compensation Reform 

Act. The employee had retired in 1999 but was not diagnosed with bladder cancer until 

December 2015. Id. at *2. In analyzing this case, the Supreme Court’s Special Workers’ 

Compensation Appeals Panel framed the issue as when the statute of limitations began to 

run, not when the employee became eligible for medical benefits. Id. at *8.

In Lively, the issue before the court was how to identify a date of injury in a case 

where the employee first becomes disabled from working due to an occupational disease, 

then later died as a result of that occupational disease. Id. at *17-18. Significantly, the 

court identified different potential dates of injury depending on the circumstances of the 

case. For example, according to the Appeals Panel in Lively, “if an employee becomes 

partially or totally unable to work as a result of an occupational disease that later results in 

his or her death, then the employee’s death cannot provide a new and separate date of 

injury.” Id. at *18. However, if an employee never becomes partially or totally disabled 

from working due to the occupational disease but later dies from that disease, “the date of 

injury must be the date of death.” Id. at *19.

We conclude the Tennessee Supreme Court took a similar approach in Ingram that 

requires a trial court to consider the particular facts and circumstances of a case. If an 

employee alleges he or she suffers from an occupational disease, that employee may be 

entitled to medical benefits pursuant to Tennessee Code Annotated section 50-6-204(a)(1) 

if that employee comes forward with sufficient proof from which the trial court can 

conclude he or she is likely to prevail at a hearing on the merits in establishing the existence 

of an occupational disease in accordance with Tennessee Code Annotated section 50-6-

102(14). However, as provided in Tennessee Code Annotated section 50-6-303(a)(1), the 

employee’s claim for disability benefits may not be “ripe for adjudication,” Ingram, 876 

S.W.2d at 94, but must be brought within the applicable limitation period after the “partial 

or total incapacity for work.” See Tenn. Code Ann. § 50-6-303(a)(1).

Moreover, the court in Ingram noted that the provisions of Tennessee Code 

Annotated section 50-6-303(a)(2) are also relevant. That section, unchanged since Ingram

was decided, states that an employee with an occupational disease “shall be entitled to the 

same hospital, medical and miscellaneous benefits as an employee who has a compensable 

injury by accident.” Tenn. Code Ann. § 50-6-303(a)(2). The Court in Ingram concluded 

this section does not “impose a requirement that the employee be disabled in order to 

qualify for medical treatment or benefits.” Ingram, 876 S.W.2d at 94.
10

In sum, Employer did not establish a basis for dismissal of this claim pursuant to 

Rule 12.02 of the Tennessee Rules of Civil Procedure, and it did not meet its burden of 

production pursuant to Rule 56 of the Tennessee Rules of Civil Procedure. Moreover, even 

if Employer had met its burden of production under Rule 56, we agree with the trial court 

that Employee came forward with sufficient proof to create one or more genuine issues of 

material fact for trial. Finally, Employer’s assertion in its brief that the trial court “erred 

as a matter of law in finding that [Employee] . . . has a compensable occupational disease 

claim” is inapposite, as the trial court made no such finding. Instead, it concluded only 

that there were genuine issues of material fact that precluded summary judgment.

Conclusion

For the foregoing reasons, we affirm the trial court’s order and remand the case. 

Costs on appeal are taxed to Employer.
 

 

 

 TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

 WORKERS’ COMPENSATION APPEALS BOARD 

Dan Cody ) Docket No. 2020-02-0545 

) 

v. ) State File No. 13453-2020 

)

G.UB.MK Constructors, et al. ) 

) 

) 

Appeal from the Court of Workers’ ) Heard September 28, 2021 

Compensation Claims ) via Microsoft Teams

Brian K. Addington, Judge ) 

CERTIFICATE 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 21st day 

of October, 2021. 

Name Certified 

Mail

First Class 

Mail

Via 

Fax

Via 

Email

Sent to: 

Karen G. Crutchfield

Tyler Chastain

X kcrutchfield@bsmlaw.com

wtylerc@bsmlaw.com

John Dupree

Jim Scott

X johnbdupree14@gmail.com

jimscott264@gmail.com

Brian K. Addington, 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

 

Olivia Yearwood

Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B 

Nashville, TN 37243 

Telephone: 615-253-1606 

Electronic Mail: WCAppeals.Clerk@tn.gov