1

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

L. Elizabeth Kenney ) Docket No. 2020-02-0536

)

v. ) State File No. 16864-2020

)

HSN, Incorporated, et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Brian K. Addington, Judge )

Affirmed and Remanded

In this interlocutory appeal, the employee contends a healthcare provider failed to produce 

certain medical records in response to a subpoena and a previous court order compelling 

discovery. The healthcare provider asserts it fully complied with the subpoena and court 

order. The employee filed a motion to enforce the court’s order compelling discovery. The 

trial court issued an order concluding that the healthcare provider had fully complied with 

the subpoena and discovery order, rendering the employee’s motion moot. After a careful 

review of the record, we affirm the trial court’s order and remand the case.

Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding Judge 

Timothy W. Conner and Judge Meredith B. Weaver joined.

L. Elizabeth Kenney, Bristol, Tennessee, employee-appellant, pro se

Phillip Baker, Bristol, Tennessee, for the employer-appellee, HSN, Incorporated

Jimmie C. Miller and Michael L. Forrester, Kingsport, Tennessee, for the non-party 

appellees, Dr. John Phillips and Appalachian Orthopedics Association

FILED

Jan 05, 2024

12:24 PM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD
2

Memorandum Opinion1

L. Elizabeth Kenney (“Employee”) sustained a work injury on March 3, 2020, after 

“striking [her] right big toe against a steel gird line” and subsequently falling while in the 

course and scope of her employment with HSN, Incorporated (“Employer”). Employee 

was seen at Mountain States Medical Group on March 5, 2020, and complained of right 

toe pain. X-rays revealed a closed nondisplaced fracture in the right great toe. Employee 

was told to limit weight bearing, perform activities as tolerated, and to follow up with an 

orthopedist.

Employee selected Appalachian Orthopedics Associates (“AOA”) from a panel of 

orthopedic practices, where she saw Dr. John Phillips on April 16, 2020. He diagnosed her 

with a non-displaced fracture of her right big toe, observing that the fracture had 

“radiographically healed and functionally healed as well.” Specifically, he noted that 

radiographs demonstrated that her “fracture line healed.” Dr. Phillips advised Employee 

that she would have swelling, released her to full duty work with no restrictions, and placed 

her at maximum medical improvement. Dr. Phillips opined Employee would have no 

impairment associated with her injury and released her to follow up “as needed.”2

 

Employee filed a petition for workers’ compensation benefits in October 2020.3

In June 2023, Employee subpoenaed certain medical records from AOA and, on 

August 22, 2023, Employee filed a motion to enforce the subpoena. Thereafter, the court 

issued an order directing AOA to respond to Employee’s subpoena by September 20. On 

September 18, AOA, through its counsel, filed a document titled “Compliance with Order 

Compelling Discovery” and noted that it had not provided any documents in response to 

the subpoena because all documents requested by Employee had previously been provided

to Employee on several occasions. AOA also asserted that its staff members “believed that 

the records [requested] had been provided to [Employee].”

In response, Employee filed a motion to enforce the September 1, 2023 order 

compelling discovery and argued that the records she sought had not been produced and/or

were not in the format requested. AOA filed a response in opposition to Employee’s 

motion and, in relevant part, asserted that it had previously produced all records requested

1 “The appeals board may, in an effort to secure a just and speedy determination of matters on appeal and 

with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion, 

whichever the appeals board deems appropriate, in cases that are not legally and/or factually novel or 

complex.” Tenn. Comp. R. & Regs. 0800-02-22-.03(1) (2020).

2 Dr. Phillips also ordered a neurological referral for “[right] toe evaluation for numbness after fracture.” 

Employee selected Dr. Jack E. Scariano from an Employer-provided panel and received medical treatment 

before being placed at maximum medical improvement in August 2022. Employee’s medical treatment 

with Dr. Scariano is not at issue in this appeal, and, therefore, we need not address it further.

3 Employee filed subsequent petitions in April 2021, August 2022, and March 2023.
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by Employee and no documents were destroyed. AOA also attached and Bates-stamped 

all records related to Employee’s “single encounter” with Dr. Phillips on April 16, 2020 to 

its response. Employee filed a response in October and maintained that certain records 

were still missing based on her review of online records viewed through a “patient portal.”

On October 12, 2023, the trial court issued an order concluding that AOA had “fully 

complied” with the June 12, 2023 subpoena and with the previous court order compelling 

discovery. Specifically, the court noted that AOA had provided “all the records” 

concerning Employee’s single visit and determined her motion was moot. Further, the 

court stated that it would “decline[] to entertain further motions pertaining to records from 

Dr. Phillips.” Employee has appealed.

In her brief on appeal, Employee argues that she is still missing certain records that 

were listed on the June 2023 subpoena and asserts “there was no room for Dr. Phillips to 

substitute other medical records or documents in lieu of what was carefully listed on the 

June 12, 2023 [s]ubpeona.”4

 AOA contends that Employee has received her entire medical 

chart and that it has fully complied with the subpoena and trial court order. Specifically, 

AOA notes that it produced all relevant and requested records in its possession pursuant to 

Rule 45.08(1)(C) of the Tennessee Rules of Civil Procedure.5

 In its brief on appeal, AOA 

asserts that this was “certified by AOA’s attorney in [multiple] filings . . . and as required 

in Tenn. R. Civ. P. 11.02, these factual contentions ‘have evidentiary support.’” 

Accordingly, AOA contends the trial court’s order should be affirmed. We agree.

Trial courts have broad discretion to address discovery disputes. See Johnson v. 

Nissan, N. Am., Inc., 146 S.W.3d 600, 604 (Tenn. Ct. App. 2004). “A trial court abuses its 

discretion when it causes an injustice by applying an incorrect legal standard, reaching an 

illogical decision, or by resolving the case on a clearly erroneous assessment of the 

evidence.” Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010) (internal citation 

and quotation marks omitted). Thus, here, Employee has the burden of proving the trial 

court abused its discretion in concluding her most recent motion to compel was moot.

Although Employee has filed a detailed brief outlining her disagreement with the 

proceedings in her claim, she provided no evidence to the trial court that AOA withheld 

any medical records from her. Mere allegations, standing alone, do not constitute evidence. 

AOA maintains that it provided Employee copies of her entire medical file and, aside from 

Employee’s assertions, there is no evidence to the contrary. Rather, the record reflects that 

AOA certified to the court it had produced all records in its possession relative to the 

4 On November 27, 2023, Employee filed a document indicating she had discovered one of the disputed 

medical records in the materials she had been provided, leaving two of the medical records still in dispute.

5 Specifically, AOA submits that it produced “documents as they are kept in the usual course of business” 

and that it was under no obligation to produce the records in “more than one form.” See Tenn. R. Civ. P.

45.08(1)(A)-(C), outlining the duties in responding to a subpoena.
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subpoena and previous trial court order. Accordingly, we conclude Employee did not meet 

her burden of proving the trial court abused its discretion in resolving this discovery 

dispute. We therefore affirm the trial court’s order and remand the case. Costs on appeal 

are taxed to Employee.
 

 

 

 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

 WORKERS’ COMPENSATION APPEALS BOARD

L. Elizabeth Kenney ) Docket No. 2020-02-0536 

) 

v. ) State File No. 16864-2020 

)

HSN, Incorporated, et al. ) 

) 

) 

Appeal from the Court of Workers’ ) 

Compensation Claims ) 

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 5th day 

of January, 2024. 

Name Certified 

Mail 

First Class 

Mail 

Via 

Fax 

Via 

Email 

Sent to: 

L. Elizabeth Kenney X elizeight@comcast.net

Phillip Baker X pbaker@fbslawfirm.com

Jimmie Miller

Michael Forrester

Jessica Torres

X jmiller@hsdlaw.com

mforrester@hsdlaw.com 

jtorres@hsdlaw.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