McCarroll, Anthony v. Amazon.com , 2022 TN WC App. 19 ( 2022 )

FILED
May 11, 2022
01:20 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Anthony J. McCarroll, Jr. ) Docket No. 2021-01-0034
)
v. ) State File No. 800029-2021
)
Amazon.com, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Audrey A. Headrick, Judge )
Affirmed and Certified as Final
The employee alleged he sustained injuries on August 29, 2019, when a box hit his head
at work. He did not report the injury until after another work incident occurred on
October 10 when he was rear-ended while operating a forklift. On January 15, 2021, the
employee filed a petition for workers’ compensation benefits for the August 29, 2019
accident. The employer filed a motion for summary judgment and, in support of its
motion, asserted that its last voluntary payment of benefits related to that accident
occurred on December 23, 2019, and that the employee had filed his petition more than
one year after the issuance of its last payment. Following a hearing, the trial court
concluded the employer had negated an essential element of the employee’s claim and
granted its motion. The employee has appealed. Upon careful consideration of the
record, we affirm the trial court’s decision and certify as final its order dismissing the
case.
Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner joined.
Anthony J. McCarroll, Cleveland, Tennessee, employee-appellant, pro se
W. Troy Hart and Matthew B. Morris, Knoxville, Tennessee, for the employer-appellee,
Amazon.com
Factual and Procedural Background
Anthony J. McCarroll, Jr. (“Employee”) alleged he sustained injuries on August
29, 2019, when a box fell and hit his head while he was working for Amazon.com
1
(“Employer”). He did not report the incident to Employer and treated his symptoms with
over-the-counter pain medications. On October 10, 2019, Employee was involved in an
accident when the forklift a co-worker was operating rear-ended Employee’s forklift,
resulting in a “very bad headache.” He reported the incident and was seen at Employer’s
on-site medical clinic. The record of that visit reflected Employee reported being hit on
top of his head with a box on August 29, 2019, resulting in headaches. It noted that
Employee did not report a work-related injury associated with that incident until October
10, 2019, when the forklift accident “made his headache worse.” Employee was also
evaluated at Telenova Healthcare the same day for complaints of a headache that he
reported began on August 29, 2019. Upon discharge, he was diagnosed with a headache
and concussion “1 month ago.”
On October 10, 2019, Employee selected Dr. Rickey Hutcheson as his authorized
physician from an Employer-provided panel of physicians, which reflected a date of
injury of August 29, 2019. 1 Employee saw Dr. Hutcheson on October 28, 2019, and
provided a history of a box falling on top of his head. According to the medical report,
Employee told Dr. Hutcheson that he went home, iced it, and it did not get any better.
The report indicated Employee returned to work the next day and his headache “got
worse” so he reported the alleged injury to Employer’s onsite medical clinic. The
medical report also noted that Employee’s “headaches got so bad that he had to be taken
to the hospital via ambulance and was diagnosed with a concussion.” Employee reported
he had seen his family doctor, who ordered a CT scan. Dr. Hutcheson’s records contain
no reference to the forklift incident. He diagnosed Employee with a concussion and
stated that Employee’s condition was greater than 51% related to his work “because he
had a box hit him on top of the head.” Dr. Hutcheson took Employee off work and
ordered a CT scan.
On October 29, 2019, Employer sent a letter of denial to Employee based upon “a
greater than 30 day delay in reporting a PIT accident” and because he “failed his drug test
completed on 10/10/2019.” Dr. Hutcheson saw Employee again on November 11, 2019,
and noted his continued complaints of pain in his head and headaches. 2 Dr. Hutcheson
amended his diagnosis to “[q]uestionable concussion” and “[s]ymptom magnification.”
He allowed Employee to return to work with restrictions and referred him to Dr. Gary
Voytick for concussion testing.
On November 22, 2019, Employee filed a petition for benefit determination
identifying October 10, 2019, as the date of injury. The trial court held an expedited
hearing on August 21, 2020, and, in an order issued on August 28, 2020, determined
1
Employee was terminated from employment with Employer on October 17, 2019.
2
Dr. Hutcheson references a CT scan of Employee’s hip that was performed on November 5, 2019 with
negative and normal results; however, our review of the record indicates that CT imaging of Employee’s
brain was performed on November 5, 2019, with negative/normal results.
2
Employee was not likely to prevail at a hearing on the merits in proving that his alleged
October 10, 2019 injuries arose primarily out of and in the course and scope of his
employment. Thereafter, Employer filed a motion for summary judgement, and, on
December 11, 2020, the trial court granted the motion and dismissed Employee’s October
10 claim with prejudice. Employee filed a notice of appeal on January 11, 2021, seeking
to appeal the August 28, 2020 order, which we dismissed as untimely.
On January 15, 2021, Employee filed a petition for benefit determination
identifying the August 29, 2019 date of injury. On June 30, 2021, Employer filed its own
petition for benefit determination, requesting the issuance of a dispute certification
notice. After propounding written discovery, including requests for admission to
Employee, Employer filed a motion for summary judgment in connection with
Employee’s January 15, 2021 petition. On November 12, 2021, the trial court denied
Employer’s motion due to procedural and substantive defects in the motion. The
November 12 order was not appealed. Thereafter, Employer filed a new motion for
summary judgment on January 6, 2022, which was heard on February 16, 2022. The trial
court granted the motion and dismissed Employee’s case with prejudice. Employee has
appealed.
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
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 (2021).
Analysis
Employee asserts on appeal that the trial court erred in granting Employer’s
motion for summary judgment. In a “Statement of the Issues on Appeal,” filed with his
notice of appeal, Employee contends Employer’s “voluntary payment of benefits on
December 23, 2019, extends the time for filing the supplemental petition on January 15,
2019, in this matter[.]” 3 In his brief on appeal, Employee claims there are “several
unresolved genuine issues as to material facts” and maintains the January 15, 2021
petition served to “reactivate” the previous petition “identifying an August 29, 2019
3
Employee references a petition filed on January 15, 2019; however, there is no such petition in the
record on appeal. The petition referencing an August 29, 2019 date of injury was filed on January 15,
2021.
3
claim and relationship between the October 10, 2019, date of injury involving a forklift,
in this matter.” 4
In Rye, as noted above, our Supreme Court 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. Each fact is to
be set forth in a separate, numbered paragraph and supported by a specific
citation to the record.
Id. at 264-65 (internal quotation marks and citations omitted). Thus, for Employer to
prevail on its motion for summary judgment, Employer must show that it negated an
essential element of Employee’s claim or that Employee’s evidence is insufficient to
establish his claim as a matter of law.
We are mindful that Employee is self-represented in this appeal. 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). However, as
explained by the Court of Appeals,
courts 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).
4
An earlier petition for benefits filed in November 2019 identified the forklift accident on October 10 but
contained no reference to the August 29 incident.
4
Here, Employer established through uncontradicted proof that Employee filed his
January 2021 petition for benefits more than one year after the issuance of Employer’s
last voluntary payment of benefits. Thus, Employer effectively negated an essential
element of Employee’s claim: the timely filing of a petition. See Tenn. Code Ann. § 50-
6-203(b)(2) (2021). Although Employee sought to articulate issues for our review, he
failed to come forward with sufficient evidence to create a genuine issue of material fact,
failed to describe how the trial court purportedly erred in its rulings, and failed to provide
any relevant legal authority in support of his positions. When an appellant fails to offer
substantive arguments on appeal, an appellate court’s ability to conduct meaningful
appellate review is significantly hampered. Holmes v. Ellis Watkins d/b/a Watkins Lawn
Care, No. 2017-08-0504, 2018 TN Wrk. Comp. App. Bd. LEXIS 7, at *3-4 (Tenn.
Workers’ Comp. App. Bd. Feb. 13, 2018). Moreover, “where a party fails to develop an
argument in support of his or her contention or merely constructs a skeletal argument, the
issue is waived.” Sneed v. Bd. of Prof’l Responsibility of the Sup. Ct. of Tenn., 301
S.W.3d 603, 615 (Tenn. 2010). It is not our role to search the record for possible errors
or to formulate a party’s legal arguments where that party has provided no meaningful
argument or authority to support its position. Cosey v. Jarden Corp., No. 2017-01-0053,
2019 TN Wrk. Comp. App. Bd. LEXIS 3, at *8 (Tenn. Workers’ Comp. App. Bd. Jan.
15, 2019). As Tennessee appellate courts have explained, were we to search the record
for possible errors and raise issues and arguments for Employee, we would be acting as
his counsel, which the law prohibits. See, e.g., Webb v. Sherrell, No. E2013-02724-
COA-R3-CV, 2015 Tenn. App. LEXIS 645, at *5 (Tenn. Ct. App. Aug. 12, 2015).
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. Tennessee Code Annotated section 50-6-203(b)(2) provides as follows:
In instances when the employer has voluntarily paid workers’
compensation benefits, . . . the right to compensation is forever barred,
unless a petition for benefit determination is filed . . . within one (1) year
from the latter of the date of the last authorized treatment or the time the
employer ceased to make payments of compensation to or on behalf of the
employee.
As noted above, Employer supported its motion for summary judgment with a
statement of undisputed facts and an affidavit of the claims adjuster stating that
Employee’s alleged injury occurred on August 29, 2019 and that Employer last issued a
payment for medical care on December 23, 2019. Further, the affidavit asserted that no
further medical or indemnity payments were made to or on Employee’s behalf after
December 23, 2019. Although Employee disputed portions of Employee’s statement of
undisputed facts, he failed to establish that Employer made any payments related to the
alleged August 29, 2019 accident after December 23, 2019. Employee also failed to
provide any evidence or legal argument supporting a conclusion that the statute of
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limitations was tolled or that he filed a petition for benefits within one year of the last
voluntary payment made by Employer. Accordingly, we conclude Employer negated an
essential element of Employee’s claim, namely, the timely filing of a petition for benefit
determination, and demonstrated that Employee’s evidence was insufficient to establish
an essential element of his claim. In response, Employee did not come forward with any
evidence to create a genuine issue of material fact. Thus, we find no error in the trial
court’s granting of Employer’s motion for summary judgment.
Conclusion
For the foregoing reasons, we affirm the trial court’s decision granting Employer’s
motion for summary judgment and dismissing Employee’s case with prejudice. The trial
court’s order is certified as final. Costs on appeal have been waived.
6
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Anthony J. McCarroll, Jr. ) Docket No. 2021-01-0034
)
v. ) State File No. 800029-2021
)
Amazon.com, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Audrey A. Headrick, 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 11th day
of May, 2022.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Anthony McCarroll, Jr. X ajmac584479@gmail.com
W. Troy Hart X wth@mijs.com
Matthew B. Morris mbmorris@mijs.com
Audrey A. Headrick, 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