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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Syvonia Armstrong ) Docket No. 2018-01-0006

)

v. ) State File No. 927-2018

)

Chattanooga Billiard Club, et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Thomas L. Wyatt, Judge )

Affirmed in Part, Reversed in Part, and Remanded

In this interlocutory appeal, the employer challenges the trial court’s denial of part of its

motion for summary judgment. The employee alleged injuries as a result of receiving an 

electrical shock in the course of her employment. After receiving treatment from an 

unauthorized dentist as well as from authorized medical care providers, the employee 

filed a petition alleging entitlement to additional benefits. She subsequently requested a 

hearing in which she sought to compel the employer to provide benefits for dental 

injuries she alleged she suffered as a result of the workplace incident. Following the

hearing, the trial court denied benefits for the employee’s alleged dental injuries but 

awarded other medical benefits. Thereafter, the employer filed a motion for summary 

judgment supported by several documents and statements of allegedly undisputed facts as 

contemplated in Rule 56.03 of the Tennessee Rules of Civil Procedure. In response, the 

employee submitted numerous documents, including a letter from a dentist stating that 

the dental work she needed “could very well be due to the electrical shock.” The trial 

court granted the employer’s motion for summary judgment in part and dismissed the 

employee’s claims for injuries to her mouth, eyes, and hearing. The trial court denied the 

employer’s motion as it related to the employee’s claim of dental injuries. The employer 

has appealed. We affirm the trial court’s grant of summary judgment dismissing the 

employee’s alleged non-dental injuries, reverse the trial court’s denial of summary 

judgment as to the employee’s alleged dental injuries, and remand the case.

Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding 

Judge Timothy W. Conner joined.

Pete F. Frech and Alex B. Morrison, Brentwood, Tennessee, for the employer-appellant, 

Chattanooga Billiard Club

FILED

Jan 21, 2020

01:09 PM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD
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Syvonia Armstrong, Chattanooga, Tennessee, employee-appellee, pro se

Factual and Procedural Background

Syvonia Armstrong (“Employee”) was employed as a bartender for the 

Chattanooga Billiard Club (“Employer”). On December 12, 2017, she reported 

experiencing an electrical shock while changing a filter on a dishwasher in the course of 

her employment, which she alleged resulted in injuries to her face, the inside of her 

mouth, and her right arm. She informed Employer of the incident but declined 

Employer’s offer to send her for immediate treatment.1

Employee alleged that on the evening of the incident, she developed swollen and 

burned lips, burns inside her mouth, pain in her left ear, and pain behind her left eye. She 

sought emergency care at Parkridge East Hospital in Chattanooga, Tennessee, where she 

reported she had “contact with electrical wire . . . at the right wrist” while “working on a 

dishwasher.” Following an examination, Employee was diagnosed as having received an 

electrical shock. The report of her examination indicated she was discharged without any 

treatment being provided. Employee later sought medical benefits from Employer and 

was referred by Employer to its insurance broker to whom Employee reported that she 

suffered “chipped teeth” from an electrical shock that “blew out her fillings.” Employee 

testified in an expedited hearing that she was allowed to see a dentist and that she saw Dr. 

Drew Shabo six days after the work incident. A December 18, 2017 clinical note from 

Dr. Shabo’s office stated that “Dr. Shabo said there’s no way to know whether the 

electric current caused the fracturing of teeth. [H]e said it is possible that the amalgam 

fillings acted as a conductor and caused them to fracture but he hasn’t seen her before to 

know.”

Employer subsequently provided Employee a panel of walk-in clinics from which 

she selected American Family Care where she was seen on two occasions, January 9 and 

12, 2018. At her second visit, she was released to return to work without restrictions 

after being diagnosed with burns of the mouth and pharynx, and she was referred to an 

ear, nose, and throat (“ENT”) specialist. Employer provided a panel of ENT physicians, 

and Employee selected Dr. Scott Fortune from the panel. Following an examination by 

Dr. Fortune, Employee was provided ointment to treat a burn of her left external ear canal 

and released without the doctor assigning an impairment rating or work restrictions.

Employer also provided Employee a panel of dentists. However, Employee 

refused to select a dentist from the panel based upon her having previously seen Dr. 

Shabo, whom she said she selected when she was earlier “allowed” by Employer’s 

 1 The record does not include a transcript of Employee’s testimony at the expedited hearing. We have 

gleaned the facts from the pleadings, the trial court’s expedited hearing order, the parties’ submissions 

related to Employer’s motion for summary judgment, and the trial court’s order granting Employer a

partial summary judgment.
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insurance broker to go to a dentist. Employee filed a request for a hearing to compel 

Employer to provide treatment with Dr. Shabo and to pay the bill for Dr. Shabo’s earlier 

examination. Following the scheduling of an expedited hearing to address Employee’s 

requests, Employee submitted various documents she anticipated introducing into 

evidence at the hearing, including the records of Dr. Shabo’s examination and a letter 

from him stating that he “concluded that the work that needs to be done to save 

[Employee’s] teeth could very well be needed due to the electrical shock the patient 

experienced.” Employee later provided a second letter from Dr. Shabo addressing 

causation.

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 Following submission of the letter, Employer filed a motion requesting the 

court to compel Employee to submit to an evaluation by a physician selected by 

Employer and to continue the scheduled expedited hearing until the evaluation could be 

completed. The trial court granted Employer’s motion for a medical examination and

continued the expedited hearing.

Following the evaluation by Employer’s physician, the trial court conducted the

expedited hearing, identifying the primary issue as whether Employee came forward with 

sufficient evidence that she would likely prevail at trial in establishing causation for her 

alleged dental injuries. The trial court concluded Employee had not established sufficient 

evidence of dental injuries for the court to order Employer to provide treatment, but the 

court ordered Employer to provide Employee “reasonable and necessary medical care . . . 

for the burn to [Employee’s] left ear canal.” Neither party appealed the expedited 

hearing order. The trial court subsequently issued a scheduling order that set deadlines 

for discovery and for filing various motions and set the case for trial on November 5, 

2019.

On June 28, 2019, Employer filed a motion for summary judgment seeking to 

dismiss all of Employee’s claims. The motion was accompanied by 37 separate 

statements of facts that Employer alleged to be undisputed and material to Employee’s 

claims. Numerous documents were filed in support of Employer’s motion indicating, 

among other matters, that none of the authorized physicians diagnosed Employee with 

permanent injuries resulting from an electrical shock, and that Employee’s alleged dental 

injuries were not work-related. At a subsequent hearing, Employee requested and was 

granted additional time to respond to Employer’s summary judgment motion. On the 

date set for the court to hear arguments on the summary judgment motion, Employee 

filed additional documents in response to the motion but did not file responses to the 37 

statements of fact that Employer alleged to be material and undisputed. Employee filed

Dr. Shabo’s September 5, 2018 letter, which stated that the work that needed to be 

performed on Employee’s teeth “could very well be needed due to the electrical shock,”

 2 The second letter, dated September 19, 2018, was identified as an exhibit admitted into evidence at the 

February 6, 2019 expedited hearing. The letter is referenced in several subsequent pleadings, but was not 

filed by Employer in support of its motion for summary judgment or submitted by Employee in response 

to Employer’s motion. This letter is not identified or addressed in the trial court’s Order for Partial 

Summary Judgment and is not included in the record on appeal.
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but Employee did not submit Dr. Shabo’s subsequent letter addressing causation. 

Employee also submitted a Form C-32 (Standard Form Medical Report for Industrial 

Injuries) purportedly signed by Lawrence J. Mesich, DDS, which indicated that Dr. 

Mesich had treated Employee on numerous occasions in 2016 and did not observe

cavities or fractures in Employee’s teeth during those visits. The C-32 was marked to 

indicate an affirmative response to a question asking, “[d]id the injury result in a need for 

treatment.”

After hearing arguments on Employer’s motion for summary judgment, the court 

determined that the motion and Employer’s supporting documents were sufficient to shift 

the burden to Employee to produce evidence demonstrating the existence of genuine 

factual issues. Because Employee failed to produce any expert opinion to rebut the 

opinions relied upon by Employer concerning Employee’s claims of injuries to her eye, 

skin, mouth, and hearing, the court granted summary judgment as to those claims. With 

regard to Employee’s alleged dental injuries, the court sustained Employer’s objection to 

the admission of Dr. Mesich’s C-32 because the document did not bear Dr. Mesich’s 

original signature and was not accompanied by an affidavit verifying that Dr. Mesich 

signed the original document as contemplated in Tennessee Code Annotated section 50-

6-235(c)(1) (2019). In addition, the court concluded that Employee failed to file a notice 

of her intent to use the C-32 as evidence as required by section 50-6-235(c)(2).

Addressing Dr. Shabo’s opinions in its order, the court determined that a genuine 

issue of material fact existed “as to whether Dr. Shabo is of the opinion that [Employee’s] 

dental injury is work related.” As stated by the court:

On one hand, [Dr. Shabo] said he cannot give a causation opinion because 

he did not examine [Employee’s] teeth before she was allegedly shocked at 

work. On the other hand, he said the dental treatment he prescribed “could 

very well be needed due to the electric shock[.]”

In its order, the court stated that questions concerning the content of Dr. Shabo’s opinions

do not negate its evidentiary value, but go to its weight, and that “the Court does not 

resolve these discrepancies on summary judgment because such would require the 

weighing of evidence.” Consequently, the trial court denied Employer’s motion for 

summary judgment as it related to Employee’s claim of dental injuries. Employer has 

appealed.

Standard of Review

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.”). Also, we are mindful 
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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 (2019).

Analysis

Employer contends the trial court erred by considering Dr. Shabo’s September 5, 

2018 letter in which the doctor stated that the work that needs to be done to save 

Employee’s teeth “could very well be needed due to the electrical shock.” Employer 

additionally contends that, even if it was appropriate for the court to consider the letter, 

the letter is insufficient as a matter of law to establish causation and does not create a 

genuine issue of material fact. We perceive the latter contention to present the 

determinative issue, and we agree that the opinion expressed by Dr. Shabo was 

insufficient as a matter of law to create a genuine factual issue with respect to the primary 

cause of Employee’s dental conditions.

A motion for summary judgment 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 

issues of material fact exist 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, MPLLC, 477 S.W.3d 

235, 265 (Tenn. 2015).

When, as in the present case, the moving party does not bear the burden of 

production at trial, “the moving party may satisfy its burden of production either (1) by 

affirmatively negating an essential element of the nonmoving party’s claim or (2) by 

demonstrating that the nonmoving party’s evidence at the summary judgment stage is 

insufficient to establish the nonmoving party’s claim or defense.” Id. at 264 (emphasis in 

original). In response, the nonmoving party must demonstrate the existence of specific 

facts in the record that could lead a rational trier of fact to find in favor of the nonmoving 

party. Id. at 265.

Here, Employer not only attempted to negate an essential element of Employee’s 

claim of dental injuries by submitting expert proof stating that the need for dental 

treatment was not the result of the alleged electrical shock, but Employer also contended

that, even with the additional time the court allowed Employee to respond to Employer’s 

motion, the expert proof Employee presented at the summary judgment stage was 

insufficient as a matter of law to establish causation for her alleged dental injuries. 
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Relying on the opinion expressed by Dr. Richard Johnson in a Form C-32 negating 

causation of Employee’s alleged dental injuries, Employer successfully shifted the 

burden to Employee to demonstrate the existence of specific facts in the record that could 

lead the trial judge to resolve the causation issue in her favor. The letter Employee 

submitted from Dr. Shabo stating the work needed to be done to save Employee’s teeth 

“could very well be needed due to the electrical shock” was insufficient as a matter of 

law to support a decision in Employee’s favor. See Willis v. All Staff, No. M2016-01143-

SC-R3-WC, 2017 Tenn. LEXIS 455, at *14 (Tenn. Workers’ Comp. Panel Aug. 3, 2017) 

(At trial, the physician “testified only that Employee’s work activities . . . ‘could have’

contributed to the injury or were a ‘possible’ cause of the injury, ‘in theory.’ While this 

testimony may have been sufficient to establish causation under prior law, it is 

insufficient under the statutes applicable to this appeal.”). Even if unopposed, the letter 

did not meet the causation requirements identified in the definition of “injury” and 

“personal injury” found in Tennessee Code Annotated section 50-6-102(14)(A)-(D) 

(2019). Thus, Employee failed to meet her burden of demonstrating the existence of 

specific facts in the record that could lead the trial judge to resolve the causation issue in 

her favor. 

 

Conclusion

We conclude that, viewed in the light most favorable to Employee, Dr. Shabo’s 

opinion that the work that needed to be performed to save Employee’s teeth “could very 

well be” the result of the electric shock is insufficient as a matter of law to support an 

award of benefits for Employee’s alleged dental injuries. Accordingly, the trial court’s 

order is affirmed in part and reversed in part. The case is remanded to the trial court for 

an order granting Employer’s motion for summary judgment with respect to Employee’s 

alleged dental injuries. We exercise our discretion to tax the costs on appeal to 

Employer.
 

 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

 WORKERS’ COMPENSATION APPEALS BOARD

Syvonia Armstrong ) Docket No. 2018-01-0006

)

v. ) State File No. 927-2018

)

Chattanooga Billiard Club, et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Thomas L. Wyatt, 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 January, 2020.

Name Certified 

Mail

First Class 

Mail

Via 

Fax

Via 

Email

Sent to: 

Pete Frech

Julia Russo

Alex B. Morrison

X ppfrech@mijs.com

jlrusso@mijs.com

abmorrison@mijs.com

Syvonia Armstrong X syvoniamercedes72@gmail.com

Thomas L. Wyatt, 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