Love, Emilie v. Love Management, Inc.

FILED
Feb 23, 2022
10:26 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Emilie Love ) Docket No. 2020-06-0102
)
v. ) State File No. 24525-2019
)
Love Management, Inc., et al. )
)
)
Appeal from the Court of Workers’ ) Heard January 25, 2022
Compensation Claims ) via Microsoft Teams
Joshua D. Baker, Judge )

Reversed and Remanded

The employee suffered serious injuries as she was placing luggage in the trunk of a car
when a second car struck her and pinned her between the two vehicles. The workers’
compensation insurer for the purported employer denied the employee’s claim, asserting
among other defenses that the employee’s injuries did not occur in the course and scope of
her employment. Following the entry of an order allowing the employee to cancel an
expedited hearing, the employee filed a motion for partial summary judgment asserting she
was entitled to a judgment as a matter of law finding that her injuries occurred in the course
and scope of her employment. The parties agreed to a hearing date for the motion, but the
insurer subsequently requested the court to continue the hearing to allow it more time to
conduct discovery. The trial court denied the motion to continue the hearing and granted
the employee’s motion for partial summary judgment, concluding the undisputed material
facts showed the employee was working in her capacity as marketing director for the
employer on the date of her injury. The insurer has appealed. We reverse the trial court’s
grant of partial summary judgment to the employee and remand the case.

Judge David F. Hensley delivered the opinion of the Appeals Board in which Judge Pele I.
Godkin joined. Presiding Judge Timothy W. Conner filed a concurring opinion.

Nicholas S. Akins and Connor R. Sestak, Nashville, Tennessee, for the carrier-appellant,
Zenith Insurance Company

Steven Fifield, Nashville, Tennessee, for the employee-appellee, Emilie Love

A. Allen Grant and Ryan A. Mirian, Nashville, Tennessee, for the employer-appellee, Love
Management, Inc.

1
Factual and Procedural Background

It is undisputed that, on February 24, 2019, Emilie Love (“Employee”), a Texas
resident, flew from Texas to Nashville, Tennessee. It is also undisputed that, while in the
ride share area of the Nashville airport, Employee was placing her luggage in the trunk of
a vehicle when an Uber vehicle came from behind her, failed to stop, and pinned her
between the two vehicles, resulting in serious injuries to Employee. 1

Chronologically, the record before us begins with a January 23, 2020, petition for
benefits filed by Employee indicating she was injured at the Nashville airport when she
was pinned between two cars. The petition indicates Employee had not received a list of
three doctors and had not received medical care from her purported employer, Love
Management, Inc. (“Love Management”), or its insurance carrier, Zenith Insurance
Company (“Zenith”). Further, the petition indicates Employee missed time from work due
to her injuries and either had not been paid for missing work or believed she was owed
more money than she received. A position statement accompanied Employee’s January
2020 petition as well as an affidavit of an administrative assistant for Employee’s attorney.
In addition, Employee submitted her own affidavit with her petition. 2

The position statement accompanying Employee’s January 2020 petition described
the February 2019 accident and alleged the accident occurred “in the course and scope of
[her] employment with Love Management.” It identified and addressed four grounds
Employee noted to be the basis for Zenith’s denial of Employee’s claim, asserting there

1
The extent of Employee’s injuries and the medical care necessary to treat Employee’s injuries are not at
issue in this appeal.
2
Our presentation of the factual and procedural background and our review in this case are hampered by
an incomplete appellate record. The depositions of Employee and her husband, Tim Love, were relied on
to support a motion for partial summary judgment filed by Employee but are not included in the record on
appeal. Employee, Love Management, and Zenith have presented numerous factual allegations in motions,
briefs, and other filings in the Court of Workers’ Compensation Claims and in their briefs on appeal that
we are unable to corroborate from the record due to the absence of the depositions. Similarly, the parties
address documents that are not in the appellate record as well as filings made with the Tennessee Bureau
of Workers’ Compensation and the Court of Workers’ Compensation Claims that are not in the record.
Furthermore, the trial court’s order granting Employee partial summary judgment identifies certain
statements of material facts presented by Employee but does not indicate whether those statements are
supported by Employee’s deposition or whether any part of Employee’s deposition, beyond excerpts
included in her motion for partial summary judgment, was reviewed or considered by the court. According
to the trial court’s order, Employee made certain affirmations included in her statement of undisputed
material facts, but the presence of those statements in the record is limited to excerpts from her deposition
as quoted in her motion for partial summary judgment. The trial court’s order includes two statements of
Mr. Love from his deposition, only one of which is borne out by the excerpts included in Employee’s
motion. Significantly, and as further addressed below, of the ten statements of allegedly undisputed
material facts presented and relied on by Employee, only one of the statements includes specific citations
to a part of the record before us.
2
was no merit to the grounds advanced by Zenith. The position statement asserted that, “in
initiating this claim, counsel for [E]mployee identified [Employee’s] employer as Tim
Love Catering, LLC in error.” The administrative assistant’s affidavit that accompanied
Employee’s petition explained how the incorrect employer was identified. Employee’s
statement referenced her affidavit that was filed contemporaneously with her petition in
which she affirmed she was the marketing director for Love Management on the date of
her injury and traveled to Nashville on February 24, 2019, to perform work related to the
Music City Food and Wine Festival in her capacity as marketing director.

A mediator with the Bureau of Workers’ Compensation issued a dispute resolution
statement on February 26, 2020, indicating “Employer has asserted that further discovery
is needed before a decision is made as to the compensability of this claim,” and that the
parties “were able to reach an agreement that the issues in this claim were not ripe for
mediation.” More than sixteen months later, Employee filed a new petition for benefits on
July 9, 2021, asserting her claim “had been wrongfully denied” and requesting a “dispute
resolution statement in order to request an expedited hearing to allow a Judge to rule on
the compensability of [her] claim.” A dispute certification notice was issued on July 23,
2021, noting the parties disputed the compensability of the claim and Employee’s
entitlement to medical and temporary disability benefits.

On August 18, 2021, Employee filed a request for an evidentiary hearing in which
she sought the payment of temporary disability and/or medical benefits. She filed a Rule
72 declaration in support of her request for an expedited hearing in which she reiterated
the information included in the affidavit filed with her January 2020 petition for benefits.
In addition, she requested the court to allow her to testify “via videoconferencing” due to
the “significant pain and discomfort” she would experience traveling to Tennessee from
her home in Texas, noting she was scheduled for surgery on September 14, 2021. On
September 17, 2021, separate counsel filed a notice of appearance for Love Management.

The next document in the record is a September 23 order of the trial court canceling
a September 28 expedited hearing. The order noted that the trial court “convened a pretrial
teleconference on September 21, 2021, at which time the court “asked counsel for
[Employee] when her next surgery is scheduled.” The order reflects that counsel confirmed
to the court that Employee had surgery scheduled for September 28, 2021, the date of the
scheduled expedited hearing and that Employee’s counsel “asked to cancel the expedited
hearing and intends to proceed with a compensation hearing when [Employee] reaches
maximum medical improvement.” Accordingly, the court cancelled the expedited hearing
and set the claim for a status conference on December 6, 2021.

Approximately two hours after the entry of the court’s order canceling the expedited
hearing, Employee filed a motion for partial summary judgment with two exhibits
comprising approximately 40 pages. Employee’s motion was accompanied by a statement
of allegedly undisputed material facts. In her motion, Employee sought partial summary

3
judgment “on the issue of her February 24, 2019[] injuries occurring in the course and
scope of her employment with Love Management.” The motion addressed some of the
testimony from the depositions of Employee and Mr. Love, and it included limited excerpts
from both depositions. Employee’s statement of undisputed facts included ten separate
statements as to which Employee asserted there was no genuine issue for trial. On October
12, Love Management, now represented by counsel separately from its insurer, Zenith,
replied to Employee’s September 23 motion, agreeing that Employee was working for
Love Management “and in the course and scope of her employment at the time of the
February 24, 2019[] injury.” Love Management filed responses to the ten statements of
allegedly undisputed facts filed by Employee, admitting each of the statements.

On October 15, Zenith filed a motion to continue the summary judgment hearing,
which the parties had agreed to set for October 25. Zenith’s motion to continue alleged
numerous factual and procedural matters not otherwise appearing in the record. The
motion identified certain discovery responses of Employee and filings by Love
Management that Zenith contended evidenced conflicting information as to who
Employee’s employer was at the time of the accident, what entity paid Employee for the
work she performed, and the amount of wages Employee received for her work.

Further, Zenith’s motion to continue the summary judgment hearing noted that
discovery depositions of Employee and her husband had been conducted. It included
excerpts from the deposition transcripts that Zenith asserted evidenced that Employee did
not know who her employer was on the date of the accident, did not know who paid her
wages, and did not know the amount of the wages she received. In its motion, Zenith
asserted that Mr. Love testified he did not know how often or when Employee was paid by
Love Management or how many paychecks Employee would have received from Love
Management, and that he stated “payroll” would have that information.

Zenith’s October 15 motion to continue the summary judgment hearing additionally
asserted that an expedited hearing had been set for September 28 and that on September 3
Zenith filed a motion to continue the September 28 expedited hearing, requesting additional
time “to further investigate the employer/employee and ‘course and scope’ issues.”
Zenith’s October 15 motion noted that “[o]n September 14, 2021, the [trial court] issued
an order denying Zenith’s motion to continue the expedited hearing.” Neither Zenith’s
motion to continue the expedited hearing nor an order of the trial court denying Zenith’s
motion is included in the record on appeal. Zenith’s October 15 motion to continue the
summary judgment hearing asserted that it issued several subpoenas for depositions that
“were set to occur on September 23 and 24, 2021,” that the trial court held a status
conference on September 21, that in the status conference Zenith “reinstituted its Motion
to Continue the Expedited hearing set for September 28, 2021,” and that the trial court
again denied Zenith’s motion to continue the expedited hearing.

4
The first order of the trial court included in the record is the court’s September 23
order cancelling the September 28 expedited hearing. The order notes that the court
convened a September 21 “pretrial teleconference” but does not address Zenith’s purported
motion to continue the expedited hearing, and it does not indicate Zenith “reinstituted” its
motion to continue the expedited hearing in the pretrial teleconference. Instead, as noted
above, the trial court cancelled the September 28 expedited hearing at Employee’s request,
stating counsel for Employee “intends to proceed with a compensation hearing when
[Employee] reaches maximum medical improvement.” According to Zenith’s October 15
motion to continue the summary judgment hearing, on the day following the September 21
pretrial conference, “Employee’s counsel withdrew the Request for Expedited Hearing,”
and Love Management withdrew its motion to quash subpoenas for the September 23 and
24 depositions “with the understanding that [Love Management] would agree to future
mutually agreeable deposition dates.” According to Zenith’s motion to continue the
summary judgment hearing, it proceeded to take several discovery depositions, and counsel
for Love Management was “in agreement to provide [its] clients for depositions.” Further,
Zenith represented in its October 15 motion that deposition dates were circulated but
Employee’s counsel “was not agreeable to any of the provided dates.”

Employee objected to Zenith’s motion to continue the summary judgment hearing
and asserted Zenith was attempting to “mislead the Court, and otherwise obfuscate
repeatedly in the latest attempt to avoid any sort of adjudication of [Employee’s] claim.”
Employee’s response asserted that Employee requested the court to set an October 25
hearing on her motion for summary judgment and that Zenith confirmed its agreement to
an October 25 hearing, only to request a continuance nine days later. Employee asserted
Zenith failed to comply with Rule 57.06 of the Tennessee Rules of Civil Procedure by
failing to submit an affidavit explaining why it was not able to obtain and present
evidentiary material to oppose Employee’s summary judgment motion. Employee
contended the trial court need not get into the merits of Zenith’s motion to continue the
summary judgment hearing because of its failure to comply with Rule 56.07.

On October 19, Zenith filed its response to Employee’s motion for partial summary
judgment and its response to Employee’s statement of undisputed facts. Zenith disputed
three of the ten statements but agreed to seven of the statements “based on discovery
performed to date.” In its response to Employee’s motion, Zenith requested the court
“refrain from issuing an Order on the Partial Summary Judgment until additional necessary
discovery has been completed.” Zenith noted its earlier motion to continue the summary
judgment hearing, reiterating that it needed “additional time to further investigate the claim
issues” and to depose several individuals. Citing Tenn. Comp. R. and Regs. 0800-02-21-
.18(1)(c), which addresses responses to dispositive motions and authorizes a trial judge to
grant additional time for the non-moving party “to respond, obtain affidavits, engage in
discovery, or take depositions,” Zenith asserted Employee’s claim “was not ripe” for
summary judgment.

5
In its response to Employee’s motion for summary judgment, Zenith objected to the
exhibits Employee submitted with her motion for partial summary judgment, asserting
“Employee has simply supplied print offs from the Texas Secretary of State office and an
insurance policy” that are not included in the items specified in Rule 56.04 that a trial court
can consider. Zenith referenced and set out excerpts from the depositions of Employee and
Mr. Love that it contended evidenced material factual issues as to what entity was paying
Employee’s wages for her work on the date of the accident and what entity employed
Employee at the time of the accident.

On Friday October 22, the trial court issued an order denying Zenith’s motion to
continue the October 25 hearing “[b]ecause Zenith did not present an affidavit to support
its reasons for requesting the continuance and agreed to the October 25 hearing date.” On
the same date as the court issued its order, Zenith refiled its motion to continue the
summary judgment hearing along with a lengthy affidavit of its attorney setting out the
chronology of the claim and requesting “additional time to further investigate the
employee/employer and ‘course and scope’ issues,” and to depose several individuals
identified in its motion.

The trial court’s November 12 order granting Employee partial summary judgment
addressed Zenith’s motion to continue the summary judgment hearing, noting that the court
had initially denied Zenith’s motion “because it failed to include an affidavit supporting its
motion as required by Tennessee Rules of Civil Procedure 56.07.” Addressing Zenith’s
October 22 motion that was accompanied by counsel’s affidavit, the court “again denie[d]
the motion due to its late filing,” adding that “[f]urther, as noted in the order denying
Zenith’s original motion for a continuance, Zenith agreed to the hearing date before the
Court placed it on its docket.”

Turning to the merits of Employee’s motion for partial summary judgment, the court
stated in its order that Employee, as the moving party, “must do one of two things to prevail
on her motion: (1) submit affirmative evidence that negates an essential element of Zenith’s
defense, or (2) demonstrate that Zenith’s evidence is insufficient to establish an essential
element of its defense.” According to the trial court’s order, if Employee does either or
both, “Zenith must respond by producing specific facts showing a genuine issue for trial.”
Concluding the undisputed facts “show [Employee] worked as marketing manager for
Love Management on the date of her injury” and “further show that she came to Nashville
to work in that capacity by attending a planning meeting for Music City Eats, an event that
benefited Love Management by expanding its brand,” the trial court granted Employee’s
motion for partial summary judgment. The order did not award Employee benefits or
address any obligations of Zenith resulting from its grant of a partial summary judgment.
Zenith has appealed.

6
Standard of Review

We review a trial court’s decision to deny a request for a continuance under Rule
56.07 on an abuse of discretion standard. See Regions Fin. Corp. v. Marsh USA, Inc., 310
S.W.3d 382, 401 (Tenn. Ct. App. 2009). A trial court abuses its discretion “when it causes
an injustice to the party challenging the decision by (1) applying an incorrect legal standard,
(2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly
erroneous assessment of the evidence. Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524
(Tenn. 2010) (citations omitted).

We review a trial court’s summary judgment determination de novo, with no
presumption of correctness. Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d
235, 250 (Tenn. 2015). In doing so, we are required to “make a fresh determination of
whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been
satisfied.” Id. We “must view the evidence in the light most favorable to the nonmoving
party and must draw all reasonable inferences in that party’s favor.” Godfrey v. Ruiz, 90
S.W.3d 692, 695 (Tenn. 2002); see also Shaw v. Metro. Gov’t of Nashville & Davidson
Cty., 596 S.W.3d 726, 733 (Tenn. Ct. App. 2019). Moreover, we resolve any doubts about
the existence of a genuine issue of material fact in favor of the nonmoving party. See TWB
Architects, Inc. v. Braxton, LLC, 578 S.W.3d 879 (Tenn. 2019). 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

Zenith presents two issues for our review: (1) whether the trial court erred in denying
its motion to continue the hearing on Employee’s motion for partial summary judgment;
and (2) whether the trial court erred in granting Employee’s motion for partial summary
judgment. In addition, Employee raises an issue questioning whether Zenith should be
sanctioned for filing what she describes as a frivolous appeal. Our decision addressing the
issues raised by Zenith pretermits any need to address whether Zenith’s appeal is frivolous.

Motion to Continue

Initially, we note that Employee contends Zenith failed to timely appeal the trial
court’s October 22, 2021 order denying Zenith’s motion to continue the summary judgment
hearing. Indeed, Zenith’s notice of appeal was filed on November 19, 2021, substantially
more than the seven business days allowed for a party to file a notice appealing an
interlocutory order. See Tenn. Code Ann. § 50-6-217(a)(2)(A) (2021). However, Zenith
filed a second motion to continue the summary judgment hearing on October 22, which the
trial court denied in its November 12, 2021 order, thereby resulting in Zenith’s November

7
19, 2021 notice of appeal timely raising the issue of the correctness of the court’s denial of
Zenith’s motion to continue the summary judgment hearing.

Rule 56.07 “is intended to serve as an additional safeguard against an improvident
or premature grant of summary judgment.” Kenyon v. Handal, 122 S.W.3d 743, 753 n.7
(Tenn. Ct. App. 2003). In its October 22, 2021 order denying Zenith’s motion to continue,
the trial court offered two reasons for denying Zenith’s motion: (1) Zenith failed to file an
affidavit in support of its request for more time; and (2) Zenith’s counsel agreed to the date
for the hearing. In its November 12, 2021 order granting Employee’s motion for partial
summary judgment, the court noted its earlier order denying Zenith’s motion for a
continuance “because it failed to include an affidavit supporting its motion as required by
Tennessee Rule of Civil Procedure 56.07.” Stating that Zenith refiled its motion that same
day “but included an affidavit,” the court again denied Zenith’s motion “due to its late
filing.” In addition, the court again stated that Zenith “agreed to the hearing date.”

Tennessee appellate courts have stated that motions under Rule 56.07 must be
accompanied by an affidavit explaining why the nonmoving party has not been able to
oppose a summary judgment motion. See, e.g., Kenyon, 122 S.W.3d at 753 n.7. However,
the affidavit need not contain evidentiary facts going to the substantive merits of the case.
Id. Here, Zenith filed its motion requesting additional time for discovery on October 15,
ten days before the scheduled hearing date, albeit without an affidavit of counsel. Upon
learning of the court’s denial of its motion for failing to file an affidavit, counsel for Zenith
filed an affidavit three days before the summary judgment hearing. Rule 56.04 provides
that an adverse party “may serve and file opposing affidavits not later than five days before
the hearing,” but there is no similar time limitation for Rule 56.07 affidavits explaining
why the nonmoving party cannot “present by affidavit facts essential to justify the
opposition.” Moreover, Tenn. Comp. R. and Regs. 0800-02-21-.18(1) allows “[a]ny party
to file a dispositive motion in accordance with the Tennessee Rules of Civil Procedure,”
and subsection -.18(1)(c) allows a trial judge to “grant additional, reasonable time for the
non-moving party to respond, obtain affidavits, engage in discovery, or take depositions”
without any requirement that an affidavit be filed stating the reasons the additional time is
being requested. We need not decide whether the alternate procedure in this regulation
that was adopted by the administrator conflicts with Rule 56.07, as we conclude Zenith
complied with Rule 56.07 by filing an appropriate affidavit with its October 22 motion
requesting the court to continue the summary judgment hearing.

Furthermore, we consider several factors that we conclude to be pertinent to the
decision whether to continue the summary judgment hearing: (1) the length of time
Employee’s July 9, 2021 petition had been pending; (2) her counsel’s request to cancel the
September 2021 expedited hearing and his representation to the trial court that he intended
to proceed with a compensation hearing when Employee reached maximum medical
improvement; (3) the reasons advanced by Zenith in support of its request for additional
time; (4) Zenith’s diligence in seeking a continuance; and (5) the possible prejudice to

8
Zenith if the continuance was not granted. Based on these considerations, we conclude the
trial judge, in denying Zenith’s motion to continue the summary judgment hearing, applied
an incorrect legal standard in determining whether Zenith complied with Rule 56.07 and
reached an unreasonable decision resulting in an injustice to Zenith.

Grant of Partial Summary Judgment

The trial court stated in its order granting Employee partial summary judgment that
Employee, as the moving party, “must do one of two things to prevail on her motion: (1)
submit affirmative evidence that negates an essential element of Zenith’s defense, or (2)
demonstrate that Zenith’s evidence is insufficient to establish an essential element of its
defense.” According to the trial court’s order, if Employee does either or both, “Zenith
must respond by producing specific facts showing a genuine issue for trial.” We have
determined the trial court based its decision to grant Employee partial summary judgment
on an incorrect legal standard, and we take this opportunity to clarify that standard as
established by the Tennessee Supreme Court.

In Rye, the Tennessee Supreme Court clarified the burden shifting analysis a court
is to perform when deciding whether to grant or deny a motion for summary judgment filed
by a party who does not bear the burden of production at trial. In such cases, 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.

However, the Court in Rye did not specifically address the burden of production
where, as in this case, the moving party has the burden of proof at trial. In a dissenting
opinion in Celotex Corp. v. Catlett, 477 U.S. 317 (U.S. 1986) (Brennan, J., dissenting),
Justice Brennan explained the differing burdens on parties seeking summary judgment
depending on whether the moving party has the ultimate burden of production at trial.
Justice Brennan offered the following where the party moving for summary judgment will
have the burden of persuasion at trial:

If the moving party will bear the burden of persuasion at trial, that party must
support its motion with credible evidence – using any of the materials
specified in Rule 56(c) [of the Federal Rules of Civil Procedure] – that would
entitle it to a directed verdict if not controverted at trial. Such an affirmative
showing shifts the burden of production to the party opposing the motion and
requires that party either to produce evidentiary materials that demonstrate
the existence of a “genuine issue” for trial or to submit an affidavit requesting
additional time for discovery.

Id. at 331(citations omitted) (second emphasis added).

9
In a more recent case involving a motion for summary judgment filed by the
plaintiff, the Tennessee Supreme Court noted that Rye did not specifically address the
burden of production in such a motion when the moving party has the burden of proof at
trial. TWB Architects, Inc. v. Braxton, LLC, 578 S.W.3d 879, 888 (Tenn. 2019). The
Court cited with approval part of Justice Brennan’s dissent in Celotex in which he
explained that “if the moving party bears the burden of proof on the challenged claim at
trial, that party must produce at the summary judgment stage evidence that, if
uncontroverted at trial would entitle it to a directed verdict.” Id. Further addressing the
burden shifting framework, the Court in TWB Architects explained:

By stating its holding in terms of the burden shifting framework applicable
when the nonmoving party does not bear the burden of proof at trial, the
Court in Rye did not intend to change this burden shifting framework
described by Justice Brennan . . . . The emphasis under the Rye standard is
the evidence at the summary judgment stage. Whether the nonmoving party
is a plaintiff or a defendant – and whether or not the nonmoving party bears
the burden of proof at trial on the challenged claim or defense – at the
summary judgment stage, “[t]he nonmoving party must demonstrate the
existence of specific facts in the record which could lead a rational trier of
fact to find in favor of the nonmoving party.” This is the standard Tennessee
courts must apply when ruling on summary judgment motions regardless of
which party bears the burden of proof at trial.

Id. at 888-889 (internal citation omitted). Hence, we conclude the trial court misstated the
applicable summary judgment standard under the circumstances and relied on that incorrect
standard in reaching its determination.

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. Here, Employee set forth
ten separate statements of facts alleged to be undisputed. The first three of those facts were
not material in determining whether Employee’s injuries occurred in the course of her
employment with Love Management. We address the pertinent statements below,
numbered 4 through 10:

4. On February 24, 2019, [Employee] was the Marketing Director of [Love
Management]. (Tim Love Dep. 12:23-13:17).

5. Prior to January 2019, [Employee] was paid for her work as the Marketing
Director of [Love Management] through River Shack, LLC because [Love
Management] did not have enough money to pay a marketing director and

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River Shack, LLC had the most profit of the Love business entities. (Tim
Love Dep. 13:7-17, 14:2-7).

6. Despite her W-2 pay prior to January 2019 coming from River Shack,
LLC, [Employee] was not the marketing director for River Shack. (Tim
Love Dep. 15:1-4).

Zenith agreed to these three statements “based on discovery performed to date.” However,
the deposition testimony Employee referenced as being in Mr. Love’s deposition is not
included in the record.

7. At all times, [Employee] was the Vice President and Director of [Love
Management]. (Exhibit _ to Employee’s Motion for Partial Summary
Judgment).

Zenith disputed this statement, adding that it “cannot properly respond, as the Exhibit
referred to is not specified.”

8. [Employee] was in Nashville in February 2019 on the business of [Love
Management] and not any other Love company such as White Elephant or
Lonesome Dove. (Tim Love Dep. 59:11-25).

Zenith agreed to this statement “based on discovery performed to date.” The deposition
testimony Employee referenced at page 59 of Mr. Love’s deposition is not included in the
record.

9. If [Employee] had not been injured, but instead attended the T.J. Martell
Foundation event, she would have been working for [Love Management]
at the event, marketing for the Love Brand. (Tim Love Dep. 60:1-5,
[Employee] Dep. 66:11-67:20).

Zenith also agreed to this statement “based on discovery performed to date.” The
deposition testimony included in Employee’s motion, which Employee referenced to be on
page 60 of Mr. Love’s deposition, supports the asserted statement as does the deposition
testimony Employee referenced to be on pages 66-67 of Employee’s deposition.

10. The main purpose of [Employee’s] travel to Tennessee in 2019 was the
planning of the Music City Food and Wine Festival and the T.J. Martell
Foundation charity event. ([Employee] Dep. 63:25-64:5).

Zenith disputed this statement, referencing testimony from Employee’s deposition that
Zenith set out in its response. The deposition testimony Employee referenced as appearing
on pages 63-64 of Employee’s deposition is not included in the record.

11
In addition to Employee’s separate statements of undisputed facts, her motion for
partial summary judgment included several references to her deposition testimony by page
and line number, but, like most of the statements included in Employee’s statement of
undisputed facts, the referenced deposition testimony in Employee’s motion is not included
in the record before us.

Zenith was required to respond to each fact by agreeing that it is undisputed,
agreeing that it is undisputed only for purposes of ruling on the motion for partial summary
judgment, or showing that the fact is disputed with a specific citation to the record. Tenn.
R. Civ. P. 56.03. We deem Zenith’s responses to the statements of undisputed facts that it
agreed to “based on discovery performed to date” to admit the statements for purposes of
the motion for partial summary judgment. However, in its response to Employee’s motion,
Zenith contended there were material factual issues concerning whether Employee was an
employee of Love Management or another company under the “Love Brand,” or both, and
it supported its contention with citations to specific portions of Employee’s deposition
testimony that were reproduced in Zenith’s response. This deposition testimony indicated
Employee did not know who her employer was, what company paid her wages, or how
much she was paid.

Viewing the evidence in the light most favorable to Zenith, the nonmoving party, as
we are required to do, and drawing all reasonable inferences in Zenith’s favor as we are
also required to do, we conclude that divergent inferences could reasonably be drawn from
the limited record before us as to whether Employee’s February 24, 2019 injuries occurred
in the course and scope of her employment with Love Management and that the trial court
should not have granted Employee’s motion for partial summary judgment.

Conclusion

For the foregoing reasons, we hold that the trial court abused its discretion in
denying Zenith’s motion to continue the summary judgment hearing. Irrespective of this
error, we further conclude the trial court erred in granting Employee’s motion for partial
summary judgment. Accordingly, we reverse the trial court’s order granting Employee
partial summary judgment and remand the case. Costs on appeal are taxed to Employee.

12
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Emilie Love ) Docket No. 2020-06-0102
)
v. ) State File No. 24525-2019
)
Love Management, Inc., et al. )
)
)
Appeal from the Court of Workers’ ) Heard January 25, 2022
Compensation Claims ) via Microsoft Teams
Joshua D. Baker, Judge )

Concurrence

Conner, J., concurring.

I fully concur with the result as set out in majority opinion. I write separately to
reiterate the difficulties that often arise when parties seek to bifurcate the issue of
compensability prior to the occurrence of the final compensation hearing.

To illustrate this problem, consider a trial court’s order that purports only to resolve
the issue of compensability, as in this case. Such an order may or may not be “final” for
purposes of further appeal. See Tenn. R. Civ. P. 54.02. 1 In other words, the issuance of an
order addressing only compensability that is declared by the trial court to be a “final
judgment” could theoretically be appealed, which would delay the case for months while
that appeal is resolved. If the trial court does not “direct the entry of a final judgment” as
indicated in Rule 54.02, then the trial court’s order is interlocutory in nature and “is subject
to revision at any time prior to the entry of the judgment adjudicating all the claims and the
rights and liabilities of all the parties.” Id. In effect, such an order has resolved nothing
because the interlocutory nature of the order makes it subject to revision at any time prior
to the issuance of the final compensation order. Because the order is interlocutory, nothing
prevents the party who lost at the bifurcated hearing from seeking additional discovery on
the very issue the parties sought to resolve at the bifurcated hearing.

In Cotton v. HUMACare, Inc., No. 2015-02-0061, 2016 TN Wrk. Comp. App. Bd.
LEXIS 42 (Tenn. Workers’ Comp. App. Bd. Sept. 14, 2016), then-Presiding Judge
1
We engaged in an extensive analysis of this issue in Foriest v. United Parcel Service, No. 2017-06-0413,
2018 TN Wrk. Comp. App. Bd. LEXIS 39, at *9-12 (Tenn. Workers’ Comp. App. Bd. Aug. 10, 2018). For
purposes of this discussion, I will presume Rule 54.02 could apply.
1
Davidson expressed his concerns with the practice of bifurcating the issue of
compensability in workers’ compensation cases:

While it may serve the interests of efficiency and justice to resolve some
cases issue by issue in separate bifurcated trials conducted over time, an
expeditious resolution in workers’ compensation cases provides employees
and businesses alike much needed finality and the ability to move on. This
is not to suggest, of course, that speed for the sake of speed should be the
goal. Clearly, it is not. Instead, as directed by the legislature, workers’
compensation disputes should be resolved in a “fair, equitable, expeditious,
and efficient” manner. Tenn. Code Ann. § 4-3-1409(b)(2)(A) (2016). In my
view, moving a case toward a resolution one inch at a time through a series
of bifurcated trials is generally inconsistent with these objectives and should
be avoided unless a sound reason suggests otherwise given the peculiar
circumstances of a given case.

Id. at *15-16 (Davidson, J., concurring).

Moreover, in Foriest, see footnote 1, the trial court issued a bifurcated order and
included language that stated, “this is not a final order addressing all contested issues in
this claim.” Foriest, 2018 TN Wrk. Comp. App. Bd. LEXIS 39, at *5. On appeal, we first
noted that because the trial court stated its bifurcated compensation order was not a final
order, it must be treated as an interlocutory order, which changed the appeals procedure
and our standard of review. We then concluded the issue was not ripe for an appeal:

Here, the issue of compensability was not ripe for adjudication at an
interlocutory stage of the case. Ultimately, whether an injured worker is
entitled to benefits depends on a variety of factors including, but not limited
to, medical evidence . . . . As we have observed in a different context,
“[g]iven the twists and turns inherent in litigation, it seems the better practice
is to resolve such issues [when] . . . the parties and the court no longer face
uncertainties over future developments, as opposed to adjudicating
disputes . . . in piecemeal fashion as the case winds its way through the
litigation process.”

Id. at *7 (internal quotations and citations omitted). We then addressed the broader
implications of bifurcating the issue of compensability in a workers’ compensation case:

Tennessee courts have cautioned against the use of bifurcated trials as a way
of resolving disputes, including workers’ compensation disputes. Indeed,
our Supreme Court’s Special Workers’ Compensation Appeals Panel has
observed that bifurcated trials serve little purpose in workers’ compensation
cases. Other courts have observed that the interests of justice will warrant a

2
bifurcation of the issues in only the most exceptional cases and upon a strong
showing of necessity.

....

There are several other considerations that highlight the problematic nature
of bifurcated trials, particularly in the context of the Reform Act of 2013.
First, neither the workers’ compensation statutes nor the regulations
contemplate that a bifurcated trial will occur in a workers’ compensation
case. Instead, the current statutes and regulations provide other mechanisms
for a trial court to address interlocutory disputes regarding the initiation of
medical and temporary disability benefits, namely, expedited hearings and
motions. A trial court has the authority to order the initiation of benefits or
deny the claim using either of these mechanisms. There is no indication that
the legislature, in passing the Reform Act of 2013, contemplated bifurcated
trials as a means of resolving workers’ compensation cases in light of the
specific framework it put in place in anticipation of interlocutory disputes,
such as the one involved here.

Second, there is nothing in the statutes or regulations to restrict a trial court
from hearing additional evidence or changing its mind on the issues raised
and decided in a bifurcated trial, as such orders do not become final by
operation of law. In other words, nothing prevents a party who lost at a
bifurcated trial from seeking additional evidence and presenting it at a
subsequent trial . . . .

Third, even if we were to affirm the trial court’s bifurcated compensation
order, it is unclear where that leaves the parties. Arguably, Employer could
not appeal our decision to the Tennessee Supreme Court because such an
appeal does not fall within the ambit of an appeal as of right as defined in
Rule 3(a) of the Tennessee Rules of Appellate Procedure. Moreover, if the
bifurcated compensation order cannot be certified as final, it arguably does
not become enforceable pursuant to Tennessee Code Annotated section 50-
6-239(c)(9).

Id. at *8-12 (internal quotations and citations omitted). In the present case, the trial court’s
order for partial summary judgment did not address Employee’s entitlement to any
temporary disability or medical benefits. It was essentially a non-binding advisory opinion
regarding the issue of compensability. In short, I conclude the trial court erred in using the
summary judgment process to, in effect, issue a bifurcated compensation order that was
interlocutory in nature and that resolved nothing for the parties.

3
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Emilie Love ) Docket No. 2020-06-0102
)
v. ) State File No. 24525-2019
)
Love Management, Inc., et al. )
)
)
Appeal from the Court of Workers’ ) Heard January 25, 2022
Compensation Claims ) via Microsoft Teams
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 23rd
day of February, 2022.

Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Connor R. Sestak X csestak@moganakins.com
nparivar@morganakins.com
Steven Fifield X steven@rocklyawfirm.com
connie@rockylawfirm.com
Allen Grant X agrant@eraclides.com
Ryan Mirian rmirian@eraclides.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