Kean, Carma v. Navion BKE Bellevue, LLC

FILED
Sep 26, 2024
02:17 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Carma Kean ) Docket No. 2023-06-4955
)
v. ) State File No. 21448-2022
)
Navion BKE Bellevue, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Joshua D. Baker, Judge )

Affirmed and Certified as Final

The employee sustained injuries to her knees, right hand, and back when she tripped and
fell at work. The employer authorized medical treatment for the injuries, and each
authorized doctor released the employee from treatment and assigned ratings of 0%
permanent medical impairment. The employee filed a petition disputing the extent of her
impairments, asserting that two providers had indicated she retained some degree of
permanent impairment arising from the work accident. The employer filed a motion for
summary judgment, contending that no genuine issue of material fact existed regarding
the employee’s lack of permanent impairment as a result of her work injuries. After a
hearing, the court granted the employer’s motion and issued a compensation order
finding the employee was not entitled to permanent disability benefits but ordering the
employer to continue providing reasonable and necessary medical treatment for the
employee’s compensable injuries. The employee has appealed. Upon careful
consideration of the record, we affirm the trial court’s order and certify it as final.

Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Meredith B. Weaver joined.

Carma Kean, Nashville, Tennessee, employee-appellant, pro se

John W. Barringer, Jr., Nashville, Tennessee, for the employer-appellee, Navion BKE
Bellevue, LLC

1
Factual and Procedural Background

On February 7, 2022, Carma Kean (“Employee”) suffered injuries to her knees
and right hand after she tripped and fell at work. In April, Employee reported
experiencing pain in the center of her back, which she believed was also related to the
initial fall in February. Navion BKE Bellevue, LLC (“Employer”) accepted Employee’s
claims and initially authorized medical treatment at Care Now Urgent Care. When she
did not improve, the treating provider referred her to an orthopedic specialist. Employer
provided a panel from which Employee selected Dr. Stuart Smith. Upon seeing Dr.
Smith, Employee reported bilateral knee pain and denied any history of pain in either
knee prior to her fall, stating that her left knee “hurts her as much as the right” and that
she had a “stretching feeling anteriorly” with tightened knees. Dr. Smith noted that
Employee was not walking with a limp and that both knees had full range of motion with
no swelling. X-rays of both knees were normal, and Dr. Smith determined she was
“primarily symptomatic from patellofemoral chondromalacia bilaterally” noting that he
believed “a fall on her knee has exacerbated that.” Dr. Smith provided conservative
treatment, including physical therapy and medication, and placed Employee on light duty
restrictions. In September, Dr. Smith ordered an MRI of both knees, which revealed mild
chondromalacia of the left knee and moderate chondromalacia of the right knee. Dr.
Smith released Employee at maximum medical improvement on November 1, 2022, and
assigned no restrictions and 0% permanent anatomical impairment for her knees.

Employee obtained authorized treatment for her back from Dr. Ryan Snowden.
During her initial examination in August 2022, Employee was seen by a physician’s
assistant, who assessed Employee with midback pain and midback sprain. A physical
examination and imaging of Employee’s thoracic spine were “unremarkable for any acute
or chronic issue seen.” She was prescribed physical therapy, anti-inflammatories as
needed, and work restrictions of no lifting greater than 10 pounds, no patient contact, and
no pushing and pulling. The medical note signed by the physician’s assistant and Dr.
Snowden noted that Employee’s “symptoms are greater than 51% related to work-related
injury.” In October, Employee was seen again, this time by Dr. Snowden, and he noted
that objective studies “showed no evidence of fractures or acute or chronic issue.” Dr.
Snowden completed a Form C-30A on October 23, 2022, which indicated Employee had
a 1% whole body impairment rating. Thereafter, Employee returned to Dr. Snowden in
December, and he noted that Employee’s imaging was “consistent with age-appropriate
spondylolysis with low back pain” and recommended physical therapy with a “return to
unrestricted duties and placement at MMI.” He determined that objective imaging
revealed “age-appropriate degenerative changes with minimal aggravation of preexisting
degenerative issues” and changed his rating to 0% permanent anatomical impairment.
On January 30, 2023, Dr. Snowden stated in his medical notes that Employee was
“released” from his care.

2
Employee also came under the care of Dr. Tyler Staelin in August 2022 for right
wrist pain. On September 7, Dr. Staelin noted that her right wrist pain “resolved
uneventfully with no permanent damage or symptoms.” He anticipated no further
treatment and assigned a 0% impairment rating with no permanent work restrictions.

In July 2023, Employee filed a petition for benefit determination, disputing Dr.
Snowden’s 0% impairment rating and contending he had instead “assigned an
impairment rating of 1% to the body as a whole.” Following an unsuccessful mediation,
the mediator issued a dispute certification notice in September 2023, identifying the
disputed issues as permanent partial disability benefits, temporary disability benefits, and
medical benefits. The court entered a scheduling order with discovery deadlines, and the
parties engaged in discovery. On November 27, Employer filed a Motion in Limine to
Exclude Plaintiff’s Documentary Evidence as Substantive Evidence, contending that the
documentary evidence Employee submitted contained inadmissible hearsay due to her
addition of handwritten notes on certain documents. Employee filed a response, and, on
January 31, 2024, the court entered an order granting Employer’s motion, concluding that
Employee’s filings with notations and internet research constituted inadmissible hearsay.

In April 2024, Employer filed a notice of its intent to use Standard Form Medical
Reports (“Form C-32(s)”) of Dr. Smith and Dr. Snowden. In response, Employee filed a
motion to strike Employer’s notice of intent to use the Form C-32s, contending they were
deficient. In reply, Employer argued that the Form C-32s were admissible pursuant to
Tennessee Code Annotated section 50-6-235(c)(2) and Tenn. Comp. R. and Regs. 0800-
02-01-.09. Employee also filed multiple motions seeking to compel the production of
various records from medical providers. On April 26, Employer filed the Form C-32 of
Dr. Staelin, a motion for summary judgment and supporting memorandum of law, and a
statement of undisputed facts. Employee filed a response to Employer’s motion on April
27, and agreed that it was undisputed that Dr. Staelin did not assign a permanent
impairment. However, Employee disputed two material facts related to her impairment
as alleged by Employer: (1) that Dr. Smith had assigned a 0% permanent partial
impairment rating for her knee condition; and (2) that Dr. Snowden had assigned a 0%
permanent partial impairment rating for her back condition.

On April 29, Employee filed an email and attached the previous Form C-30A
completed by Dr. Snowden reflecting his original 1% impairment rating. This document
was stamped filed, and there is nothing in the record indicating Employer objected or
sought to have the filing stricken. That same day, the court issued an order denying
Employee’s motions seeking to compel the production of medical records and her motion
to strike the Form C-32s. In its order, the court relied on Sadeekah v. Abdelaziz d/b/a
Home Furniture and More, No. 2020-06-0218, 2021 TN Wrk. Comp. App. Bd. LEXIS
19, at *11 (Tenn. Wrk. Comp. App. Bd. June 22, 2021) for the proposition that Form C-
32s are “admissible at any stage of a workers’ compensation claim in lieu of a
deposition” when filed in compliance with Tennessee Code Annotated section 50-6-

3
235(c). The court determined that although Employee lodged a timely objection to the
use of the Form C-32s, her objection only permits her an opportunity to “depose [the
doctors] within a reasonable period of time” or the “objection shall be deemed waived.”
Id. In addition, the court concluded that discrepancies noted in Employee’s motion were
not grounds for the exclusion of the Form C-32 pursuant to Tennessee Code Annotated
section 50-6-235. The court explicitly cautioned Employee that “handwriting her
arguments or any other notes onto documentation intended as an exhibit constitutes
inadmissible hearsay under Tenn. R. Evid. 802.” Although the court denied her motion,
it advised Employee that she still had time to depose any expert witness under the terms
of the scheduling order.

Also on April 29, Employee filed medical records of an unauthorized physician,
Dr. James N. Johnson. Employer filed a standing objection to Employee’s filing of
medical records, asserting they constituted inadmissible hearsay. On May 15, Employee
filed a C-30A Final Medical Report from Dr. Douglas Long, an unauthorized
chiropractor, to which Employer also objected. Although Dr. Long’s statement of
qualifications was attached, the permanent impairment section of the form was left blank.

On June 3, 2024, the trial court heard Employer’s motion for summary judgment.
Thereafter, it issued a compensation order granting the motion, concluding there was no
genuine issue of material fact regarding Employee’s lack of permanent medical
impairment. 1 Given the acknowledged compensability of the work accident, however,
the court ordered Employer to provide any future reasonable and necessary medical
treatment for Employee’s work-related injuries.

Employee filed a notice of appeal on July 9 and a statement of the evidence on
July 18. Employer filed an objection to Employee’s statement, and, on July 25, the court
issued an order noting that a statement of the evidence is not necessary in this appeal as
the parties presented no witness testimony for the court’s consideration.

Standard of Review

The grant or denial of a motion for summary judgment is a matter of law that we
review de novo with no presumption that the trial court’s conclusions are correct. See
Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). As
such, we must “make a fresh determination of whether the requirements of Rule 56 of the
Tennessee Rules of Civil Procedure have been satisfied.” Id. We are also mindful of our
obligation to construe the workers’ compensation statutes “fairly, impartially, and in

1
The trial court characterized its order as granting partial summary judgment. However, because the
court resolved all disputed issues in the case, it appropriately issued a compensation order in accordance
with Tennessee Code Annotated section 50-6-239(c)(2).
4
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 (2023).

Analysis

As noted on multiple occasions, the Tennessee Supreme Court has explained the
requirements for a movant to prevail on a motion for summary judgment:

[W]hen the moving party does not bear the burden of proof 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. We reiterate that a moving party seeking summary
judgment by attacking the nonmoving party’s evidence must do more than
make a conclusory assertion that summary judgment is appropriate on this
basis. Rather, Tennessee Rule 56.03 requires the moving party to support
its motion with “a separate concise statement of material facts as to which
the moving party contends there is no genuine issue for trial.” Tenn. R.
Civ. P. 56.03. “Each fact is to be set forth in a separate, numbered
paragraph and supported by a specific citation to the record.” Id.

Rye, 477 S.W.3d at 264-65 (emphasis in original). Here, the first question is whether
Employer met its burden of either affirmatively negating an essential element of
Employee’s claim or demonstrating that Employee’s evidence is insufficient to establish
her claim for permanent disability benefits at the summary judgment stage. If that initial
burden has been met, we must then consider whether Employee has presented any
evidence that establishes the existence of a disputed issue of material fact.

In her notice of appeal, Employee provided the following statement of her issues
on appeal:

[Forms] C30 and C32 for Dr. Stuart Smith and Dr. Ryan Snowden.
Causation, work status, medical opinion, impairment rating, timely filing
with Bureau of Workmans [sic] Comp, no state file numbers, MMI dates
changed.

In her brief on appeal, Employee provides a summary of the medical care she received
for her work-related injuries and asserts that Dr. Smith’s 0% impairment rating is
incorrect because he “stated the injury resulted in permanent impairment on original C30
in 2022.” She also disputes the rating assigned by Dr. Snowden, contending he “gave a
1% impairment rating on [the] original C30 final med report” and argues that Dr. Long’s
Form C-32 should have been considered by the trial court. Employer contends the trial

5
court did not err in granting its motion. It further argues that Employee failed to come
forward with any admissible evidence supporting entitlement to a permanent partial
disability award “in light of the fact that no permanent partial impairment has ever been
assigned as required by Tennessee Code Annotated section 50-6-207(3)(A).”

We first note that Employee is self-represented in this appeal, as she was in the
trial court. Parties who decide to represent themselves are entitled to fair and equal
treatment by the courts. Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct.
App. 2000). Yet, as explained by the Tennessee Court of Appeals:

[C]ourts must also be mindful of the boundary between fairness to a pro se
litigant and unfairness to the pro se litigant’s adversary. Thus, the courts
must not excuse pro se litigants from complying with the same substantive
and procedural rules that represented parties are expected to
observe. . . . Pro se litigants should not be permitted to shift the burden of
the litigation to the courts or to their adversaries.

Hessmer v. Hessmer, 138 S.W.3d 901, 903-04 (Tenn. Ct. App. 2003) (citations omitted).
Nonetheless, we must “make a fresh determination of whether the requirements of Rule
56 of the Tennessee Rules of Civil Procedure have been satisfied.” Rye, 477 S.W.3d at
250.

Here, Employer complied with Tennessee Code Annotated section 50-6-235 by
timely notifying Employee of its intent to use Form C-32s of the physicians in lieu of
depositions. Although Employee objected to their use, she did not depose the doctors
within a reasonable time or request a continuance; in fact, she indicated to the court that
she did not intend to depose the physicians prior to trial. The trial court also reminded
Employee of the deadline to depose witnesses in its denial of her motion to strike
Employer’s Form C-32s. 2 As the court noted in its order, a permanent impairment rating
is an essential element of a claim for permanent partial disability benefits, and it cannot
award permanent partial disability benefits without such a rating. See Baumgardner v.
United Parcel Service, Inc., No. 2015-05-0619, 2017 TN Wrk. Comp. App. Bd. LEXIS
63, at *11 (Tenn. Workers’ Comp. App. Bd. Oct. 18, 2017) (“[A]bsent a permanent
medical impairment rating, there is no statutory mechanism by which a trial court can
award permanent partial disability benefits.”) Thus, we agree that Employer met its
burden of production under Rule 56 and shifted the burden to Employee to come forward
with evidence of a disputed issue of material fact.

2
The Form C-32s were copies of originals and, thus, admissible unless Employee raised a genuine
question as to their authenticity pursuant to Tennessee Code Annotated section 50-6-235(c)(2), which she
did not do at the trial level. To the extent Employee questions their authenticity now, we deem that
argument waived. See, e.g., Long v. Hamilton-Ryker, No. 2015-07-0023, 2015 TN Wrk. Comp. App. Bd.
LEXIS 23, at *14-15 (Tenn. Workers’ Comp. App. Bd. July 31, 2015) (stating that issues not raised in the
trial court are generally considered waived).
6
Because Employer met its burden, we must now consider whether Employee
submitted any documentation allowed by Rule 56 to create a genuine issue of material
fact such that summary judgment was inappropriate. Rule 56 contemplates that a judge
may consider, in the context of a motion for summary judgment, “pleadings, depositions,
answers to interrogatories, admissions on file, [and] affidavits, if any.” Here, although
Employee filed voluminous medical records and other medical documents, including the
Form C-32 of Dr. Long and Form C-30As from Dr. Snowden and Dr. Smith, these
documents were not submitted in an admissible form. Medical records, standing alone,
are not included within the scope of materials a court can consider in response to a
motion for summary judgment. Sadeekah, 2021 TN Wrk. Comp. App. Bd. LEXIS 19, at
*13. Thus, we conclude Employee failed to meet her burden of establishing that a
genuine issue of material fact exists regarding the existence of permanent medical
impairment, and summary judgment was appropriate.

Conclusion

For the foregoing reasons, the trial court’s order granting Employer’s motion for
summary judgement is affirmed. Employee is not entitled to permanent partial disability
benefits, but she remains entitled to reasonable and necessary medical care that is
causally related to her compensable work-related injuries. The trial court’s order is
certified as final. Costs on appeal are taxed to Employee.

7
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Carma Kean ) Docket No. 2023-06-4955
)
v. ) State File No. 21448-2022
)
Navion BKE Bellevue, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Joshua D. Baker, 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 26th day
of September, 2024.

Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Carma Kean X carmaiskean@gmail.com
John W. Barringer, Jr. X jbarringer@manierherod.com
pcarr@manierherod.com
Joshua D. Baker, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims

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