Hutchins, David v. Cardinal Glass Industries, Inc.

FILED
Mar 23, 2023
08:10 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

David Hutchins ) Docket No. 2021-02-0572
)
v. ) State File No. 71396-2021
)
Cardinal Glass Industries, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Brian K. Addington, Judge )

Affirmed and Certified as Final

The employee asserts the trial court erred in granting the employer’s motion for summary
judgment. Having carefully reviewed the record, we affirm the trial court’s decision and
certify as final its orders granting summary judgment and denying the employee’s
subsequent motion to alter or amend. We further conclude this appeal is frivolous but
decline to award attorneys’ fees or expenses under the circumstances presented in this case.

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

Donald F. Mason, Jr., Kingsport, Tennessee, for the employee-appellant, David Hutchins

Catheryne L. Grant and Taylor R. Pruitt, Brentwood, Tennessee, for the employer-appellee,
Cardinal Glass Industries, Inc.

Factual and Procedural Background

On September 15, 2021, David Hutchins (“Employee”) reported suffering an injury
to his left knee while working for Cardinal Glass Industries, Inc. (“Employer”). Employee
stated that the injury occurred while he was “brisk[ly] walking out of the control room to
the plant floor.” He alleges when he stepped to the left, there was a ½ to ¾-inch change
from a tiled floor to a smooth concrete surface. He also claims the floor was “always dusty”
and the concrete was shiny and slick. Employee asserted the combination of the drop down
and the slick floor caused his knee injury.

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Employee was provided a panel of physicians from which he selected Ballad Health.
X-rays taken at that facility showed no fractures, and Employee was prescribed medication
and given a knee brace. After Employee provided a recorded statement to Employer’s
insurance representative, Employer denied the claim, asserting that Employee’s injury was
idiopathic. Thereafter, Employee began medical treatment on his own with Associated
Orthopaedics under the care of a nurse practitioner, Josh Smith (“N.P. Smith”). An MRI
showed no tendon tears but indicated some fluid around Employee’s knee.

In April 2022, Employee filed a request for a hearing, indicating he had reached
maximum medical improvement and wanted to proceed with setting his case for trial. The
court issued a Scheduling Order on June 1, 2022, setting certain deadlines for discovery
and motions. Employee’s deadline to disclose medical experts was July 29, 2022; the
parties were given until October 24 to file all motions; and Employee’s case was set for
trial on November 22, 2022.

On August 3, 2022, Employer filed a Motion for Summary Judgment, asserting that
Employee had identified no expert witnesses as required by the Scheduling Order, and
Employee’s evidence of medical causation was insufficient, entitling it to judgment as a
matter of law. As required by Bureau rules, see Tenn. Comp. R. and Regs. 0800-02-21-
.18(1), Employer obtained a hearing date, which was reflected on the face of the motion.
Employee did not file a response to Employer’s motion for summary judgment or its
statement of undisputed material facts. Instead, on September 21, 2022, two days before
the scheduled hearing on Employer’s dispositive motion, Employee filed a motion for
continuance, without a supporting affidavit, asking the court to delay a hearing on
Employer’s motion for summary judgment and/or “remove [the case] from the active
docket until the Employee is definitively diagnosed, appropriately treated, reaches
Maximum Medical Improvement[,] and is given an impairment rating.” The trial court
denied Employee’s motion for a continuance because it was not filed within a sufficient
time to allow Employer to respond prior to the scheduled hearing as set forth in applicable
rules.

On September 29, 2022, the trial court issued a compensation order granting
Employer’s motion for summary judgment. The court concluded that Employer had met
its burden at the summary judgment stage to show Employee’s evidence was insufficient
to establish medical causation, and Employee had not come forward with any evidence
creating a genuine issue of material fact for trial. Additionally, the court noted that
Employee did not properly request additional time to respond to the motion for summary
judgment because his motion for continuance did not include an affidavit as required by
Tennessee Rule of Civil Procedure 56.07. Employee has appealed.

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Standard of Review

The standard we apply in reviewing a trial court’s decision presumes that the court’s
factual findings are correct unless the preponderance of the evidence is otherwise. See
Tenn. Code Ann. § 50-6-239(c)(7) (2022). However, “[n]o similar deference need be
afforded the trial court’s findings based upon documentary evidence.” Goodman v.
Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.
Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of
statutes and regulations 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). 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 (2022).

Analysis

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 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).

In Rye v. Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 235 (Tenn.
2015), the Tennessee Supreme Court overruled several prior opinions addressing
Tennessee’s summary judgment standard. In doing so, the Court explained that, moving
forward, a party seeking summary judgment 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). Hence, 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, 477 S.W.3d at 265. 1 “A fact is
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On March 17, 2023, Employee filed a “Submission to the Board of Potential Law of the Case, Request
for Reversal of Trial Court and for Attorney Fees and Costs.” This document was filed in addition to
“Appellant’s Brief in Support of Appeal” and “Appellant Hutchins [sic] Reply Brief.” Employee’s March
17 submission was not filed in accordance with Tenn. Comp. R. and Regs. 0800-02-22-.06. We elect to
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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 ‘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).

Bureau rules set forth certain requirements for dispositive motions. First, a
dispositive motion must be filed “in accordance with the Tennessee Rules of Civil
Procedure.” Tenn. Comp. R. & Regs. 0800-02-21-.18(1). A court will not entertain a
motion for summary judgment until after a scheduling order has been issued. Id. The
moving party is required to contact the court’s staff to obtain a hearing date, which must
be no sooner than thirty (30) days after the filing date, and that date must be prominently
reflected in the motion. Id. Finally, the responding party must file its response to the
dispositive motion “no later than five (5) business days before the motion hearing.” Id.

In the present case, Employer’s motion for summary judgment complied with the
requirements of Rule 56 of the Tennessee Rules of Civil Procedure and was accompanied
by a statement of undisputed facts, a Rule 72 declaration, and a memorandum of law. The
basis of Employer’s motion was that Employee had come forward with no evidence in
support of his assertion that his left knee condition was caused by an accident arising
primarily out of and in the course and scope of his employment. Employer obtained an
appropriate date for the motion hearing and listed that date prominently in its motion.
Employee filed no response to the motion, did not respond to the statement of undisputed
material facts as required by Rule 56.03, and came forward with no expert medical
evidence supporting his claim. Moreover, Employee did not comply with the terms of the
trial court’s scheduling order requiring him to disclose the identity of all expert witnesses
on or before July 29, 2022; nor did he file a motion seeking to extend that deadline or
amend the scheduling order prior to the expiration of that deadline.

In his brief, Employee argues that Employer’s Motion for Summary Judgment was
filed prematurely considering the new diagnosis and treatments suggested by Dr. Riggins,
and the trial court’s order should be vacated under the unique circumstances presented in
this case. Further, Employee asks that the scheduling order be revised in light of Dr.
Riggins’s more recent reports. We are unpersuaded by Employee’s arguments.

In his motion to alter or amend the trial court’s order granting summary judgment,
Employee references Dr. Riggins’s reports, which were attached to Employee’s motion.
Yet, these reports were not accompanied by an affidavit and were not presented in an

treat Employee’s filing as a motion to allow a supplemental brief, which we deny. We note further that
Employee’s submission does not address the summary judgment standards articulated by the Tennessee
Supreme Court in Rye.
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admissible form in opposition to the motion for summary judgment. At the summary
judgment stage of a case, Rule 56.04 of the Tennessee Rules of Civil Procedure allows a
trial court to consider “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any.” As we have observed previously,
“[m]edical records, standing alone, are not included in that list.” Sadeekah v. Abdelaziz
d/b/a Home Furniture and More, No. 2020-06-0218, 2021 TN Wrk. Comp. App. Bd.
LEXIS 19, at *13 (Tenn. Workers’ Comp. App. Bd. June 22, 2021). Thus, a court cannot
consider unauthenticated medical records that “were not presented to the trial court in any
admissible form at the summary judgment stage of the case.” Id.

Employee asserts that there was no reason to identify Dr. Riggins as an expert
witness as required by the trial court’s scheduling order because Employer’s counsel had
deposed Employee in May 2022, prior to the expert disclosure deadline, and was “fully
aware” of the identity of Employee’s medical providers. He further argues that he was
unable to comply with the terms of the court’s scheduling order because of “a completely
revised, unknown and unconfirmed diagnosis” made by Dr. Riggins in “June, July and
September 2022.” We conclude employee’s argument on this issue is without merit. In
most cases, parties are aware of the identity of an injured worker’s treating medical
providers; yet, in a typical scheduling order, the parties are nevertheless required to disclose
those persons, including medical providers, they intend to present as expert witnesses at
trial. Parties and their attorneys often make strategic decisions regarding which experts
they may use at trial, including some but excluding others. The purpose of the court’s
scheduling order is not merely to identify potential witnesses, but to put other parties on
notice of expert testimony the party intends to present at trial. Furthermore, the course of
a patient’s treatment is often unpredictable, and physicians revise or amend diagnoses and
recommended courses of treatment as merited by the circumstances of any given case. Yet,
it was Employee who filed the request for a scheduling hearing, and it was Employee who
indicated he had been placed at maximum medical improvement and was ready to proceed
to trial. In short, Employee did not comply with the terms of the trial court’s order and did
not seek to amend the scheduling order in a timely manner.

In sum, we conclude Employer filed a properly-supported motion for summary
judgment and based its motion on the assertion that Employee’s evidence of medical
causation was insufficient as a matter of law. Instead of responding to Employer’s motion
and producing a medical opinion in an admissible form to create a genuine issue of material
fact, Employee filed a late motion for continuance two days before the scheduled hearing
without a supporting affidavit, which was properly denied.

Finally, Employer asserts that Employee’s appeal is frivolous. A frivolous appeal
is one that is devoid of merit or brought solely for delay. Yarbrough v. Protective Servs.
Co., No. 2015-08-0574, 2016 TN Wrk. Comp. App. Bd. LEXIS 3, at *11 (Tenn. Workers’
Comp. App. Bd. Jan. 25, 2016); see also Burnette v. WestRock, No. 2016-01-0670, 2017
TN Wrk. Comp. App. Bd. LEXIS 66, at *15 (Tenn. Workers’ Comp. App. Bd. Oct. 31,

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2017) (“Stated another way, a frivolous appeal is one that . . . had no reasonable chance of
succeeding.”). Litigants “should not be required to endure the hassle and expense of
baseless litigation. Nor should appellate courts be required to waste time and resources on
appeals that have no realistic chance of success.” Yarbrough, 2016 TN Wrk. Comp. App.
Bd. LEXIS 3, at *10-11 (internal citations omitted). Here, Employee did not timely
respond to Employer’s dispositive motion, did not comply with Rule 56, and did not file a
timely motion for continuance of the summary judgment hearing supported by an affidavit.
In short, Employee had no reasonable chance of success on appeal, and we conclude his
appeal is frivolous. However, we exercise our discretion and decline to award attorneys’
fees or expenses in these circumstances.

Conclusion

For the foregoing reasons, we affirm the trial court’s order granting summary
judgment and its order denying Employee’s motion to alter or amend the judgment, and
we certify those orders as final. Costs on appeal are taxed to Employee.

6
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

David Hutchins ) Docket No. 2021-02-0572
)
v. ) State File No. 71396-2021
)
Cardinal Glass Industries, Inc., 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 23rd
day of March, 2023.

Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Donald Mason X dfm@donmasonlaw.com
katy@chartertn.net
Catheryne Grant X catherynelgrant@feeneymurray.com
trp@feeneymurray.com
Brian K. Addington, 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