Bits & Pieces

Newbolds v. Ill. Workers’ Comp. Comm’n

Newbolds v. Ill. Workers’ Comp. Comm’n
Appellate Court of Illinois, Second District, Workers’ Compensation Commission Division
March 8, 2018, Filed
NO. 2-17-0301 WC

2018 IL App (2d) 170301WC-U *; 2018 Ill. App. Unpub. LEXIS 344 **
ROBERT NEWBOLDS, Appellant, v. THE ILLINOIS WORKERS’ COMPENSATION COMMISSION et al. (Clesen Brothers, Inc., Appellee).
Prior History: [**1] Appeal from Circuit Court of Kane County. No. 16MR114. Honorable David R. Akemann, Judge Presiding.
Disposition: Affirmed.

[*P1] Held: The Commission’s decision that claimant failed to prove he sustained an accidental injury arising out of and in the course of his employment was not against the manifest weight of the evidence.
[*P2] On September 13, 2012, claimant, Robert Newbolds, filed an amended application for adjustment of claim pursuant to the Workers’ Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2012)), seeking benefits from the employer, Clesen Brothers, Inc. Following a hearing, the arbitrator awarded claimant benefits under the Act, finding that his injuries arose out of and in the course of his employment and were causally connected to a work accident on July 20, 2012.
[*P3] On review, the Illinois Workers’ Compensation Commission (Commission) reversed the arbitrator’s decision, finding that (1) claimant failed to prove he sustained an accidental injury arising out of and in the course of his employment; and (2) his condition of illbeing was not causally [**2] related to a work accident on July 20, 2012. On judicial review, the circuit court of Kane County confirmed the Commission’s decision.
[*P4] Claimant appeals, arguing the Commission erred in finding that he did not prove his injuries arose out of and in the course of his employment and were not causally connected to a work accident on July 20, 2012.

[*P6] At arbitration, claimant testified he worked for 17 years as a truck driver for the employer, a commercial greenhouse and nursery. His job duties included loading flats of plants onto a truck, delivering them to the employer’s customers, and unloading them. Claimant testified that he drove a “20-foot straight truck” with a solid bench seat and no cushion. He stated that the truck had a “rough” suspension that “bounced [him] out of the seat” while driving.
[*P7] Prior to each delivery, the flats of plants were placed onto carts, and he would load the carts onto the truck. According to claimant, an empty cart weighed 120 pounds and a loaded cart weighed up to 600 pounds. To remove the carts from the truck, claimant would disconnect the load bar holding them in place and pull each cart to the back of the truck. Claimant stated he would lower [**3] the carts to the ground via a lift gate.
[*P8] Claimant testified that, on Friday, July 20, 2012, he arrived at work between 5:00 a.m. and 5:30 a.m. He was scheduled to make eight or nine deliveries that day. His first delivery was approximately 2 1/2 to 3 hours away in Wisconsin. Claimant testified that he felt “great” before his first delivery. When he arrived in Wisconsin, he was “a little sore from sitting.” His first delivery included a full cart of plants with 28 cases averaging 10 to 20 pounds each. He explained that he noticed his back started “really hurting” when he “reached for the cart to pull it to the back of the truck to the lift gate ***.” Claimant stated that he “[l]owered the lift gate to the ground, rolled the cart over to *** where the customer wanted [him] to unload it[,] [w]hich [he] did.”
[*P9] Claimant further testified that he completed his first delivery despite his pain. As he drove to the site of the next customer, he was “bouncing around quite a bit” in his truck and “hurting.” He stated that he could barely finish his second delivery because of his pain. Claimant stated that his back pain worsened throughout the day. He also noticed pain running down into his left [**4] buttock. He nonetheless completed all eight or nine of his scheduled deliveries that day.
[*P10] Claimant testified that each delivery involved the same motion of pulling the carts out of the truck. He clarified that he “did do lifting” as he completed his deliveries and he noticed pain after “pulling a cart” and while he was “driving.”
[*P11] After completing his deliveries that day, claimant returned to the employer’s place of business around 4:30 p.m. He testified that he only spoke to the maintenance man, Mike Splinter. Claimant stated that he attempted to call one of the owners, Eric Clesen, but he was unable to reach him. Claimant explained that he did not leave a voicemail because he assumed the pain would “go away over the weekend, [and he] didn’t want to disrupt [Eric’s] weekend with his family ***.” Claimant testified that he did not speak to his supervisor, Patrick Clesen, on the day of his injury.
[*P12] Claimant testified that his pain worsened over the weekend. He attempted to call two co-workers on Sunday, July 22, 2012, to see if they could cover his next shift on Monday. Claimant was unable to reach either of his co-workers.
[*P13] On Monday, July 23, 2012, claimant reported to work and made [**5] a delivery. Claimant explained that he noticed “[t]he pain was still in [his] back and [his] left butt cheek.” According to claimant, when he returned from his delivery, he reported his pain to Patrick. Claimant testified that he informed Patrick that his “back was killing [him], that [he] needed to take off and go to the hospital and have it checked out.” He told Patrick that he “hurt [his] back doing [his] job Friday and that when [he] got back [he] fell down.” In response, Patrick suggested that claimant seek treatment from a chiropractor. Claimant stated that he “couldn’t afford that *** [and] he just wanted to go to the hospital ***.”
[*P14] Later that day, claimant left work and sought medical treatment from Delnor Community Hospital. He testified that he complained of back pain and pain in his left buttock running down his left leg. He stated that he did not know why the hospital records did not reflect that he sustained his injury during a “lifting” incident. Instead, the medical records from Delnor Community Hospital reflect the following accident history:
“The patient states that he developed back pain Friday. He does not remember doing anything other than he drives a truck and after [**6] trying to get in and out of his truck he was having lower back pain. The pain is more on the left side than the right. It does extend down his buttock. He did have an injury in October where a door hit him in his back. He did not follow up, did not have an x-ray at that point in time. *** He has left foot tingling which is not new. It is his chronic pain. Currently he states his pain is a 9/10. *** [H]e is having difficulty ambulating due to the pain.”
[*P15] Hospital records reflect that, upon physical examination, claimant was able to “move upper extremities without difficulty. Positive pain with straight leg raises on the left [were] compared to the right. He d[id] have tenderness over the [s]ciatic on the left side.” An x-ray was taken of claimant’s lumbar spine. The x-ray showed degenerative disk disease at L5-S1. The treating physician recommended that claimant follow up with his primary care physician. Claimant was also prescribed morphine, Valium, and Toradol for his pain.
[*P16] Claimant testified that he worked for part of the day on July 24, 2012. That same day, claimant followed up with his primary care physician of 15 years, Dr. William Scurlock. According to Dr. Scurlock’s medical [**7] records, claimant gave the following history:
“Back symptoms, buttock pain radiating to posterior thigh, radiating to the back of the leg, radicular pain, posterior aspect of lower extremities L leg and hip, and ending below the knees [sic]. No previous history of limb weakness. No numbness of buttocks. Numbness of the limbs L knee down to toes. No perianal numbness. Seen in ER for sciatica, here for follow up. Feeling better, pain in left leg since Friday. HX of cervical disc herniation years ago.”
[*P17] Claimant testified that he told Dr. Scurlock he had a “lifting” incident at work and he had “no idea why that’s not there [in the medical records].” Claimant further testified that Dr. Scurlock “knows what [claimant’s] job is *** and what [he] do[es].”
[*P18] According to Dr. Scurlock’s medical records, he examined claimant and noted tenderness to palpation of the lumbar spine, muscle spasms of the paraspinal muscles, limited lumbar range of motion with pain, and a positive straight leg raise on the left. The medical records further note that claimant had an altered gait and abnormal ankle reflex on the left. Dr. Scurlock diagnosed claimant with sciatica, recommended that claimant continue to take [**8] his pain medications, and ordered a magnetic resonance imaging (MRI) scan. Dr. Scurlock advised that claimant not work while on pain medication.
[*P19] On Wednesday, July 25, 2012, claimant worked for part of the day. He testified that he told the owners, Eric and Mike Clesen, that he “hurt [himself] on the job Friday, [he] went to the hospital Monday, [he] went to the doctor Tuesday, [the doctor] put [him] on medication and also stated that [he] could not drive and do [his] job.” Claimant testified that he did not work after July 25, 2012.
[*P20] On July 31, 2012, claimant saw Dr. Scurlock for his diabetic condition. Dr. Scurlock’s medical records do not show that claimant mentioned having back pain during this appointment.
[*P21] On August 2, 2012, claimant underwent an MRI of his lumbar spine at the Center for Diagnostic Imaging in Geneva, Illinois. According to medical records, the interpreting physician concluded as follows: “1. There is a disc herniation at L5-S1 with an associated annular tear. 2. There is multilevel mild facet degenerative change.”
[*P22] On August 6, 2012, claimant received his last paycheck. He testified that there was a notation on his paycheck instructing him to turn in his cell phone [**9] and credit card.
[*P23] On August 9, 2012, claimant followed up with Dr. Scurlock. Dr. Scurlock’s medical records noted that claimant “[c]annot work due to pain in back,” that claimant was afraid he would be fired if he filed a workers’ compensation claim, and he could not afford to stay at home. Dr. Scurlock diagnosed claimant with a herniated disk and sciatica. He recommended reduced physical activity and referred claimant to a pain clinic.
[*P24] On August 16, 2012, claimant gave a recorded statement to Jodie Arnett, a representative of the employer’s workers’ compensation carrier. In his recorded statement, claimant explained that his back pain developed when the employer “first got [this particular] truck.” Claimant went on to describe the truck. Claimant noted that he has complained to his supervisor about the truck’s “solid bench seat.” He explained that he would get “back pains every time [he] [got] in it ***.” Claimant further stated as follows:
“*** I’m short legged so I got to sit forward away from the back of the seat, I’m like five inches away from the back. *** [S]o you’re pretty much hanging on [to] the steering wheel *** [and] you ain’t got nothing to lean back against, it makes you [**10] sore ***.”
Further, when asked why he believed his pain was work related, he stated “it’s that front seat of that truck.” He explained “[t]hat’s the biggest thing. *** They should’ve replaced the seat in the truck.”
[*P25] On August 28, 2012, claimant saw Dr. H.S. Tsang at Fox Valley Pain Management. Dr. Tsang recorded the following accident history:
“In July 7/20/2012 [claimant] was driving a truck on a bumpy road and was bouncing up and down in the truck all day. At the end of day, he had difficulty getting off the truck[,] almost fell off the truck because of left leg pain and weakness. He described the pain was aching and shooting, going down to the lower leg especially back of the lower leg associated with some tingling and numbness ***.”
[*P26] Dr. Tsang examined claimant and noted he was tender in the left lumborascral region and he had limited range of motion in all directions because of pain. Dr. Tsang diagnosed claimant with radiculopathy secondary to a herniated disc at L5-S1. Dr. Tsang administered a transforaminal epidural steroid injection. Claimant testified that the injection reduced the pain in his back but the pain returned approximately six weeks later.
[*P27] Claimant further testified [**11] that, although he believed he was terminated from his employment on August 6, 2012, he attempted to return to work on August 28, 2012, because he needed health insurance. He explained that he talked his wife into going to Dr. Scurlock’s office to obtain a release to return to work. On August 28, 2012, Dr. Scurlock signed a form stating that claimant was able to return to work without restrictions. According to claimant, Eric Clesen informed him that he was no longer employed because “[w]orkers’ [c]omp[ensation] wouldn’t cover [him] ***.”
[*P28] Claimant stated that, after he was terminated, his health deteriorated due to his lack of health insurance. He explained that he was unable to follow up with his doctors for his back pain or pay for prescriptions for his diabetic condition.
[*P29] On November 6, 2012, claimant was admitted to Delnor Community Hospital for diabetes dysregulation. Claimant testified that he was in a coma during the five days he spent at the hospital. While there, claimant was given medication for his back pain.
[*P30] On November 16, 2012, Dr. Matthew Ross performed an independent medical examination (IME) at the request of claimant’s attorney. Dr. Ross reported the following history [**12] of claimant’s condition:
“The patient states that he was employed as a truck driver for Clesen Brothers Greenhouse. After returning from a delivery run to Wisconsin, [claimant] experienced severe low back pain as well as numbness down his left leg. He did not recall any specific accident. He states that he simply did his normal work activities of loading plants onto heavy carts, which he pushes and pulls into flower shops. The patient assumed that his pain would resolve. He rested at home over a weekend. When the pain persisted, he went to an emergency room for treatment. *** He denies previous problems with his low back.”
[*P31] According to Dr. Ross’s report, claimant had full range of motion in his lumbar spine. He further noted there was “tenderness over the lower lumbar spinous processes as well as over the left flank musculature just above the iliac crest.” There was no sciatic notch tenderness noted.
[*P32] Dr. Ross’s report noted that he reviewed claimant’s August 2012 MRI, which showed “early disk desiccation and an annular tear at L5-S1.” Dr. Ross further opined that “[t]here may be some slight bulging of this disk toward the right side.” Dr. Ross stated that he did not detect any herniation [**13] or nerve impingement. He opined that claimant had “symptoms of a lumbosacral strain as well as mild sciatica.” Dr. Ross recommended conservative treatment including additional epidural steroid injections and physical therapy. He found claimant was capable of returning to work provided he lifted nothing greater than 25 pounds and had the ability to vary his position from sitting to standing. Dr. Ross further opined as follows:
“Although there was no actual work accident, it is more likely than not that the lifting activities at work on July 20, 2012[,] were the proximate cause of the patient’s symptoms and his need for treatment. There is no evidence that he had a preexisting condition in his lumbar spine that would have any bearing on his current symptoms.”
[*P33] Following Dr. Ross’s examination, claimant sought treatment from a free clinic, Tri City Health Partnership. According to the medical records, claimant received treatment for his diabetes on November 21, 2012. The medical records do not reflect that claimant made any mention of lower back pain during this appointment.
[*P34] On December 3, 2012, claimant returned to the free clinic. The medical records note that claimant reported a “back [**14] injury at work in July.” Claimant again visited the free clinic on January 17, 2013, but apparently did not mention having back pain. On February 14, 2013, claimant went to the free clinic and reported “chronic back pain” radiating to his left lower extremity. Claimant was referred to Dr. Escobar for his back pain.
[*P35] Claimant was seen at the free clinic on May 9, 2013. No complaints of back pain were recorded at that visit. According to the clinic’s medical records, claimant returned due to chest pain on July 11, 2013, after he “lift[ed] a stove into a truck.” He followed up at the free clinic on October 7, 2013, and December 12, 2013, for his diabetic condition. No mention of back pain was noted on either occasion. On March 27, 2014, and April 22, 2014, claimant returned complaining of back pain and he received an epidural injection.
[*P36] On September 29, 2014, Dr. Ross conducted a second IME. Dr. Ross noted that claimant’s back pain began after he made a delivery to Wisconsin. Dr. Ross stated that claimant “did not perform anything other than his normal work activities of loading plants on to carts.”
[*P37] According to Dr. Ross’s second IME report, claimant stated that “in the intervening 2 years, [**15] he has had some treatment from the ‘Free Clinic in Saint Charles.’ He underwent an injection ***.” Dr. Ross noted claimant’s August 2012 MRI, which was “normal except for disc desiccation and an annular tear at the L5-S1 level.”
[*P38] In his report, Dr. Ross opined that claimant had “persistent back and sciatic type pain in his left leg following his work activity in July 2012.” He further stated that claimant had evidence of disc degeneration and an annular tear at the L5-S1 level. He explained that, “[w]hile this potentially could be a cause for his low back pain, it would be unlikely to explain his left sciatic pain.” Dr. Ross advised that claimant was capable of functioning at only a light physical demand level. He further stated that claimant was not capable of commercial driving in his current condition. Regarding causation, Dr. Ross stated as follows: “Based on the history obtained from [claimant] and the lack of evidence to the contrary, his current condition of back and left leg pain continue to be causally connected to his work activity of July 2012.”
[*P39] Following the second IME, claimant returned to the free clinic on November 20, 2014, December 29, 2014, and February 4, 2015. Medical [**16] records make no mention of back pain.
[*P40] Mary Newbolds, claimant’s wife, testified at arbitration. She stated that she saw claimant before he went to work on Friday, July 20, 2012. She observed that claimant appeared to be walking normally and did not notice anything to suggest he was injured. She testified that, when claimant returned home later that day, he “threw [his] lunch bucket down and he also collapsed and kept grabbing his left hip.” She testified that she had to help him take off his shoes.
[*P41] Patrick Clesen testified for the employer. He stated that he is the operations manager. Patrick testified that he had a conversation with claimant after claimant returned from his route on Friday, July 20, 2012. Patrick observed that claimant did not appear to be in any pain. Patrick explained that claimant told him he “had slipped either off the lift gate or the side step of the truck and had injured his leg.” Patrick testified that claimant only mentioned pain in his leg—not his back. Patrick asked claimant if he needed medical attention and claimant said, “no.” Patrick testified that, according to his time cards, claimant worked on July 26, 27, and 30, 2012.
[*P42] On May 26, 2015, the arbitrator [**17] issued her decision finding that claimant’s injuries arose out of and in the course of his employment and were causally connected to a work accident on July 20, 2012. The arbitrator awarded claimant temporary total disability (TTD) benefits from July 31, 2012, through August 28, 2012, and from November 16, 2012, through April 17, 2015. The arbitrator also awarded claimant prospective and current medical expenses.
[*P43] On review, the Commission reversed the arbitrator’s decision, finding that (1) claimant failed to prove he sustained an accidental injury arising out of and in the course of his employment; and (2) his condition of ill-being was not causally related to a work accident on July 20, 2012. The Commission found that claimant was not credible in light of the multiple, inconsistent versions he gave regarding his alleged work accident. The Commission noted that “[t]here [was] everything from generic to specific reports of a work accident and from a repetitive trauma to a specific trauma. The numerous versions results in internal inconsistencies being provided by [claimant] himself ***.”
[*P44] On March 21, 2017, the circuit court confirmed the Commission’s decision.
[*P45] This appeal followed. [**18]

[*P47] On appeal, claimant argues the Commission erred by finding he failed to prove that he sustained an accidental injury on July 20, 2012, arising out of and in the course of his employment. Claimant also argues the Commission erred by finding that his low back pain condition of ill-being was not causally related to his work accident.
[*P48] An employee’s injury is compensable only when it arises out of and in the course of his employment. Tower Automotive v. Illinois Workers’ Compensation Comm’n, 407 Ill. App. 3d 427, 434, 943 N.E.2d 153, 160, 347 Ill. Dec. 863 (2011). “To obtain compensation under the Act, a claimant bears the burden of showing, by a preponderance of the evidence, that he has suffered a disabling injury which arose out of and in the course of his employment.” Sisbro, Inc. v. Industrial Comm’n, 207 Ill. 2d 193, 203, 797 N.E.2d 665, 671, 278 Ill. Dec. 70 (2003). An injury “arises out of” employment when “the injury had its origin in some risk connected with, or incidental to, the employment so as to create a causal connection between the employment and the accidental injury.” Id.
[*P49] Whether an employee has suffered a work-related accident is a question of fact for the Commission to determine, and its decision will not be overturned on appeal unless it is against the manifest weight of the evidence. Beattie v. Industrial Comm’n, 276 Ill. App. 3d 446, 449, 657 N.E.2d 1196, 1199, 212 Ill. Dec. 851 (1995). “In order for a finding to be contrary to the manifest weight of the evidence, an opposite conclusion [**19] clearly must be apparent.” Teska v. Industrial Comm’n, 266 Ill. App. 3d 740, 741-42, 640 N.E.2d 1, 3, 203 Ill. Dec. 574 (1994). It is solely within the Commission’s province to judge the credibility of witnesses and weigh conflicting medical testimony. Fickas v. Industrial Comm’n, 308 Ill. App. 3d 1037, 1041, 721 N.E.2d 1165, 1169, 242 Ill. Dec. 634 (1999).
[*P50] Here, as stated, the Commission rejected claimant’s argument that he sustained an accidental injury arising out of and in the course of his employment on July 20, 2012. In so holding, it found claimant was not credible. We find the evidence was sufficient to support the Commission’s decision.
[*P51] Specifically, the Commission noted significant inconsistencies in claimant’s multiple descriptions of the mechanism of injury. For example, when he first sought medical treatment from Delnor Community Hospital on Monday, July 23, 2012, claimant reported developing back pain on the previous Friday “after trying to get in and out of his truck.” However, in claimant’s recorded statement to the employer’s workers’ compensation carrier, he identified the “front seat of [his] truck” as the cause of his back pain, stating “[t]hat’s the biggest thing. They should’ve replaced the seat in the truck.” Then, at arbitration, claimant testified that he noticed low back pain after “pulling a cart” and while “driving.” Claimant’s supervisor, Patrick Clesen, [**20] contradicted claimant’s testimony, stating that claimant reported that he “had slipped either off the lift gate or the side step of the truck,” and that he had injured only his leg—not his back. Dr. Ross, opined in his November 2012 report that “there was no actual work accident ***.” He further noted that claimant “did not recall any specific accident.” Claimant testified that he told Dr. Scurlock he had a “lifting” accident at work. However, Dr. Scurlock’s records do not support this assertion. Finally, the Commission noted claimant gave Dr. Tsang a history of “driving a truck on a bumpy road and *** bouncing up and down in a truck all day” as the injury-causing event.
[*P52] In reaching its conclusion that claimant did not prove that he sustained a workrelated accident, the Commission accurately summarized the inconsistencies in the evidence, stating as follows:
“Did [claimant] get bounced around day to day on the bench seat (repetitive trauma), did he load plants onto heavy carts (note plants were loaded before he left [the employer]), did he push/pull carts or did he fall/almost fall off the lift gate or side of the truck. Which of the multiple versions/theories is the Commission to believe?” [**21]
[*P53] As stated, it is within the Commission’s province to judge the credibility of witnesses. Fickas v. Industrial Comm’n, 308 Ill. App. 3d 1037, 1041, 721 N.E.2d 1165, 1169, 242 Ill. Dec. 634 (1999). Based on the multiple conflicting descriptions regarding claimant’s mechanism of injury, we cannot say the Commission’s finding that claimant failed to prove he sustained a work-related accident was against the manifest weight of the evidence.
[*P54] Finally, claimant also argues the Commission erred by finding that the condition of ill-being in his low back was not causally related to his employment. However, we need not address this issue based on our decision regarding accident.

[*P56] For the reasons stated, we affirm the circuit court’s judgment.
[*P57] Affirmed.

Thomas v. Burnham Trucking Co.

Thomas v. Burnham Trucking Co.
United States District Court for the Northern District of Indiana, Fort Wayne Division
March 12, 2018, Decided; March 12, 2018, Filed
Case No. 1:16-CV-112

2018 U.S. Dist. LEXIS 39536 *; 2018 WL 1257442

This matter is before the Court for resolution of several pending motions filed by Defendant Burnham Trucking Company, Inc., including a Motion for Summary Judgment (ECF 27), a Motion to Strike Undisclosed Expert Opinions (ECF 36), and a Motion to Deem its Statement of Undisputed Material Facts Admitted (ECF 38). Plaintiff Dion Thomas filed briefs in opposition to all three motions (ECF 31, 45 and 48) and Burnham filed reply briefs (ECF 39, 46 and 51).1 For the reasons discussed below, the motion for summary judgment is GRANTED and the motion to strike and the motion to deem statement of facts admitted are DENIED as moot.

Dion Thomas, a truck driver employed by PTO Services, Inc., sustained physical injuries, including a broken leg, while securing a large steel slab on a tractor trailer on February [*2] 26, 2014. Complaint (ECF 4). The truck Thomas was loading was owned by Burnham Trucking and the accident occurred at a steel plant in Burns Harbor, Indiana, that is owned and operated by ArcelorMittal, an international steel and mining company. Id., p. 1. Thomas filed this lawsuit against Burnham Trucking in state court in Lake County, Indiana (his county of residence), on February 25, 2016, and Burnham removed it to this Court on March 31, 2016, on the basis of diversity jurisdiction. Notice of Removal (ECF 1).2 Thomas asserts that Burnham Trucking provided him “with equipment consisting, in part, of chains, bars and binders to use to secure the steel products [on] its trucks.” Id., p. 2. Thomas further asserts that “[w]hile [he was] attempting to secure the slab Burnham’s equipment failed and caused [him] serious injuries[.]” Id. Thomas alleges that “Burnham knew, or should have known, that the equipment it provided to Thomas was defective, inadequate and otherwise unsuitable to use for securing steel products.” Id. Thomas sued Burnham Trucking on a single state law negligence claim. Id. He summarizes his claim this way:
Burnham was negligent by failing to exercise reasonable care for the protection [*3] of Thomas while he was using its equipment; failing to provide reasonably safe equipment for Thomas to use; failing to properly instruct Thomas how to use its equipment; and failing to warn him of dangers Burnham knew, or reasonably should have known, in using said equipment.
Id. Thomas alleges that he “sustained severe and permanent injuries” as a result of Burnham Trucking’s negligence and the company should compensate him for those injuries.
Burnham Trucking argues that it cannot be held liable for Thomas’ injuries because Thomas was employed by PTO Services at the time of the accident, a company working under contract with Burnham to provide steel hauling services, and “PTO—not Burnham—was responsible for all aspects of Thomas’s hiring, safety and training, including selecting and providing the equipment alleged to be defective.” Motion for Summary Judgment, p. 1. Burnham argues that “[u]nder Indiana law, Burnham owed no duty to provide for the safety of Thomas, as an employee of its independent contractor. Absent a duty, there can be no liability in negligence.” Id., pp. 1-2. Burnham also argues that “[e]ven if [it] did owe Thomas a duty, it cannot be held liable in the ways alleged[,]” because [*4] Thomas’s allegations provide “no basis to find that Burnham failed to exercise reasonable care under the circumstances.” Id., p. 2. Because this Court finds Burnham’s primary argument to be correct—that it did not owe Thomas a duty of care as a matter of law—the Defendant’s alternative arguments that it was not negligent need not be addressed, as they are based on the assumption that a duty existed.

A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Whether a party asserts that a fact is undisputed or genuinely disputed, the party must support that asserted fact with citations to the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Failure to properly support a fact in opposition to a movant’s factual assertion can result in the movant’s fact being considered undisputed, and potentially in the grant of summary [*5] judgment. Fed.R.Civ.P. 56(e).
In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. “A disputed fact is material if it might affect the outcome of the suit under the governing law.” Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). “An issue of fact is ‘material’ if it is outcome determinative[.]” Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
On summary judgment, “‘a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events.'” Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003) (quoting Schacht v. Wisconsin Dep’t of Corr., 175 F.3d 497, 504 (7th Cir. 1999)). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party’s favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O’Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010). However, summary judgment is appropriate and should be granted if the moving party shows there is “no genuine dispute as to any material fact,” and that he is [*6] entitled to summary judgment as a matter of law. A.H. by Holzmueller v. Illinois High Sch. Ass’n, 881 F.3d 587, 592 (7th Cir. 2018) (quoting Fed.R.Civ.P. 56(a)).

As stated above, Burnham Trucking argues that it is entitled to summary judgment because it was not Thomas’s employer and owed him no duty of care at the time of the accident giving rise to this lawsuit. Memorandum in Support (ECF 28), p. 2. According to Burnham:
Thomas was working as an employee of PTO Services, Inc. . . . at the time of his injury. Burnham hired PTO, an independent contractor, to supply it with qualified truck drivers, safety and dispatch personnel. Pursuant to the contract with Burnham, PTO personnel hired Thomas, trained him and supervised all aspects of his work. PTO also selected and provided the equipment Thomas was using at the time of his injury. . . . The undisputed evidence has proven the allegations in Thomas’ complaint untrue. It is undisputed that PTO—not Burnham—selected and provided the equipment Thomas was using at the time of his injury. . . . It is undisputed that PTO—not Burnham—trained Thomas and supervised the safety aspects of his work. Thomas has not alleged any basis to find that Burnham owed Thomas a duty or that it can be liable for PTO’s allegedly negligent acts or omissions. [*7]
Id., pp. 1-2. If Burnham owed no duty of care to Thomas, then Thomas cannot proceed with this lawsuit because he cannot establish a prima facie case of negligence. Under Indiana law “[t]he elements of a negligence action are: (1) a duty owed to plaintiff by defendant; (2) breach of that duty by conduct falling below the applicable standard of care; and (3) compensable injury proximately caused by the breach of duty.” Himsel v. Indiana Pork Producers Ass’n, 2018 Ind. App. LEXIS 61, 2018 WL 845496, at *7 (Ind.Ct.App. Feb. 14, 2018) (citing Williams v. Cingular Wireless, 809 N.E.2d 473, 476 (Ind.Ct.App. 2004)). If Thomas cannot establish that Burnham owed him a duty of care then the inquiry is over and Burnham is entitled to summary judgment.
Burnham supports its argument that it did not owe a legal duty to Thomas by explaining that “[o]n April 1, 2005, Burnham entered into an agreement with PTO . . . to supply qualified truck drivers to assist its steel hauling cartage.” Memorandum in Support, p. 2 (citing Defendant’s Exh. A, “PTO Agreement,” (ECF 28-1)). Burnham contends that “PTO was solely responsible for determining the manner, means and mechanics of how its drivers would haul the freight. . . . PTO was responsible for all aspects of the relationship with its employees who drove Burnham’s trucks, including, but not limited to, hiring, supervising, paying, disciplining and handling [*8] all labor relations.” Id. Burnham also points out that “the PTO Agreement specifically provided:
P.T.O. will hire and employ all personnel required to perform its obligations under this Agreement, shall have no authority to hire any person on behalf of [Burnham], and any person whom it may employ shall be deemed solely P.T.O.’s employee. P.T.O. shall at all times be regarded as an independent contractor to [Burnham], and the relationship between P.T.O. and [Burnham] shall in no event be construed to be that of principal and agent, master and servant or employer and employee.
Id., p. 3 (quoting Exh. A) (boldface in original). This couldn’t be clearer, argues Burnham—it was PTO, not Burnham, that owed a duty of care to Thomas.
Thomas concedes that he was an employee of PTO Services and that PTO hired truck drivers to haul steel pursuant to the long-standing contract between PTO and Burnham. Plaintiff’s Response, p. 2; see also Complaint, p. 1, ¶ 3 (“On February 26, 2014[,] Thomas was employed as a truck driver for PTO Services, Inc.”) and ¶ 4 (“On February 26, 2014[,] PTO Services, Inc., was under a contract or agreement to provide truck drivers to operate trucks and other equipment controlled or [*9] owned by Burnham for purposes of transporting various steel products for the ArcelorMittal steel company.”). Those undisputed facts notwithstanding, Thomas argues that Burnham owed him a duty of care under either “the Loaned Servant Doctrine” or a “dual employer” theory.3Id., p. 1. More specifically, Thomas asserts that even though he was employed by PTO Services, the operations of the two companies were so intertwined and commingled that Burnham owed him a duty of care just as it would if it employed him directly. Thomas contends that summary judgment is inappropriate for the following reasons:
Under the Loaned Servant Doctrine, there is a genuine issue of material fact whether the employees who trained the Plaintiff, supervised him, and provided him with the equipment he was using at the time he was injured were acting as employees or agents of Burnham.
There is also a genuine issue of material fact whether these employees were acting in a dual capacity as employees and agents of both PTO Services, Inc. and Burnham.
Burnham retorts that “Plaintiff’s arguments fail both procedurally and, based on the undisputed facts of this case, as a matter of law.” Defendant’s Reply, p. [*10] 2. Burnham insists that Thomas ignores the language of the contract between PTO and Burnham, that he misrepresents facts in his effort to show that PTO and Burnham were effectively his “dual employers,” and that “the legal requirements of the loaned servant doctrine are not satisfied in this case.” Id., pp. 1-2. According to Burnham, “[d]espite plaintiff’s Herculean attempts at obfuscation, he cannot avoid the fundamental problem in his case: that Burnham owed him no duty of care.” Id., p. 2.
Thomas makes many factual assertions to support his argument in opposition to Burnham’s motion. These include the following:
(1) “Burnham had only one employee: Yvonne Meurkson. . . . Although Ms. Meurkson was in charge of Burnham, all the other personnel who worked at the Burnham plant were provided by PTO.” Plaintiff’s Response, p. 3.
2) “John Jackson was . . . and independent contractor hired by PTO to function serve [sic] as Safety Manager for Burnham. . . . Before being hired by PTO, Mr. Jackson worked at the Burnham plant for the previous 21 years for PTO’s predecessors. When PTO and Burnham entered into the staffing agreement, Ms. Meurkson requested PTO to hire Mr. Jackson and assign him to the Burnham plant. [*11] . . . Mr. Jackson worked exclusively at the Burnham plant, where Burnham provided him an office.” Id.
3) Although “Mr. Jackson had discretion to determine what safety procedures would be implemented at Burnham, he could only implement the procedures if they were first approved by Ms. Meurkson.” Id., p. 4.
4) “Robert Bishop was hired as a Safety Director and Risk Manager by PTO and was assigned to the Burnham plant to train and supervise the truck drivers, including the Plaintiff. . . . Like Mr. Jackson, Mr. Bishop worked exclusively at the Burnham plant, where he likewise was provided an office.” Id., p. 5.
5) “Like his colleagues, Joe Whorton was employed by PTO and assigned to Burnham as the Terminal Safety Coordinator. . . . Yvonne Meurkson selected Mr. Whorton for this job. . . . Mr. Jackson and Mr. Whorton were responsible for conducting safety training of the truck drivers, including the Plaintiff. . . . Mr. Whorton supervised [drivers] to ensure they properly secured the loads. . . . Mr. Jackson was the head of safety training and was primarily responsible for training drivers on how to properly secure loads.” Id., p. 6.
6) “It was Burnham’s policy to issue cheater bars and snap binders to its drivers for [*12] [the] purpose of securing loads.” Id., p. 7.
7) Both Mr. Jackson and Mr. Whorton were “provided with business cards with the Burnham logo and listing the Burnham plant as [their] place of employment.” Id., pp. 18-19.
Based on these assertions, Thomas argues that “[a]lthough nominally employees of PTO, under the Loaned Servant Doctrine, there is evidence from which a jury could conclude that [Jackson, Whorton and Bishop] either functioned as agents or employees of Burnham or were under the dual control of both Burnham and PTO.” Id., p. 11. Thomas is correct that “under the borrowed servant doctrine, the question of which employer is liable for an employee’s negligence is a question for the trier of fact.” Logestan v. Hartford Steam Boiler Inspection & Ins. Co., 626 N.E.2d 829, 831 (Ind.Ct.App. 1993) (citing Progressive Construction and Engineering Co. v. Indiana and Michigan Electric Co., 533 N.E.2d 1279, 1284 (Ind.Ct.App. 1989)). But as Burnham points out, the question before this Court is whether Burnham owed any duty to Thomas in the first place and that is a question of law for the Court to decide. Defendant’s Memorandum, p. 10 (citing N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 466 (Ind. 2003) (“Whether a defendant owes a duty of care to a plaintiff is a question of law for the court to decide.”)); see also, Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992) (same); Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991) (“Whether the law recognizes any obligation on the part of a particular defendant to conform his conduct to a certain standard for the benefit of the plaintiff is a question [*13] of law.”); Gariup Constr. Co. v. Foster, 519 N.E.2d 1224, 1228 (Ind. 1988) (“It is the exclusive province of the court to determine whether the relation existing between the parties gives rise to a duty to exercise care.”).
Thomas argues that the borrowed servant doctrine is applicable in this case because Burnham was essentially a puppet master with the ability to control PTO’s hiring and firing decisions, provide equipment for PTO drivers to use, and generally “control . . . the means used to reach [the] result” (i.e., to facilitate the hauling of steel to Burnham’s site in Illinois). Plaintiff’s Response, pp. 12-15.
Burnham takes issue with Thomas’s theory and his factual recitation, arguing that he mischaracterizes (or intentionally misrepresents) these facts in his attempt to establish the applicability of the borrowed servant doctrine or a dual employer theory. Burnham argues as follows in its reply brief:
In [his] response, plaintiff attempts to entirely change his theory of the case. He abandons his allegations that Burnham acted negligently, and instead attempts to claim that individuals working for plaintiff’s employer, PTO, were negligent. Plaintiff then, for the first time, argues that those individuals were simultaneously acting both [*14] as PTO agents and as agents of Burnham under the loaned servant doctrine and/or that their conduct should be imputed to Burnham by some unalleged agency theory.
Defendant’s Reply, pp. 1-2. Burnham elaborates as follows:
In his response . . . Thomas seeks to entirely change both the fundamental facts at issue and the straightforward negligence claim alleged in the Complaint. Thomas now, in his response papers—asserts that, although Thomas was employed by PTO, and although PTO workers trained and supervised Thomas, those PTO workers were somehow Burnham’s loaned servants . . . or subject to a dual employment relationship under the Restatement of Agency § 226. . . . As such, Thomas argues that Burnham should be responsible for PTO’s negligence. Thomas cannot defeat summary judgment by so radically reframing his claim.
Id., pp. 5-6. In short, Burnham claims that Thomas’s factual assertions regarding the business relationship between Burnham and PTO are “exaggerate[d],” “not accurately presented,” “taken out of context,” and “misstated.” Defendant’s Answer to Additional Facts of Plaintiff’s Response (ECF 37), pp. 1-3. One prime example of this, according to Burnham, is Thomas’s repeated references in his brief (and in his Complaint) [*15] to the “Burnham plant” in East Chicago, Indiana. Throughout his brief Thomas makes reference to “the Burnham plant,” a reference to the site in East Chicago where truck drivers, including Thomas, picked up their trucks at the beginning of the work day and parked them at the end of it. Id., p. 5. Burnham claims this language is misleading. As Burnham explains it, “[t]here is no ‘Burnham plant. . . . Burnham maintained a terminal yard wherein Mr. Thomas would pick his truck up in the morning and park his truck at the end of the day. . . . Burnham operated out of what was essentially a parking lot for trucks that it shared with Penske truck rental.” Id. Burnham insists that “Plaintiff’s repeated reference to the ‘Burnham plant’ incorrectly implies that the plaintiff was hauling steel into or out of the Burnham ‘plant.'”
Id., p. 6. Burnham also challenges Thomas’s repeated statements that “Mr. Jackson worked exclusively at the Burnham plant, where Burnham provided him an office[,]” or that Jackson “was the person at Burnham who was responsible for training and supervising . . . the Plaintiff[,]” or that “[l]ike Mr. Jackson, Mr. Bishop worked exclusively at the Burnham plant.” Plaintiff’s Response, pp. 3, [*16] 4, 5 (italics added). Given that the “Burnham plant” was nothing more than a terminal where PTO drivers picked up and dropped off trucks under the supervision of PTO employees (including Jackson and Bishop), Burnham argues that it is misleading for Thomas to characterize the East Chicago truck lot as a “Burnham plant,” which implies (or which the Court is urged to infer) that it was some sort of Burnham-operated site rather than simply a truck parking lot run by PTO employees pursuant to the companies’ Agreement. Burnham also claims that Thomas “misstates” testimony when he asserts that “‘Burnham directed PTO on which drivers to hire.'” Id., p. 4 (quoting Plaintiff’s Response, p. 5). According to Burnham, this factual assertion is an incorrect interpretation of the deposition testimony of Mr. Bishop, whom Burnham claims “only state[d] that PTO safety personnel (such as Mr. Bishop and Mr. Jackson) would interview potential PTO drivers to see if they met the ‘requirements’ of PTO and Burnham; the cited testimony does not state that Burnham directed PTO as to its hiring decisions.” Id. Yet another example of what Burnham calls Thomas’s “obfuscation” is his assertion that “Mr. Jackson testified [*17] that all the equipment . . . he issued to drivers was provided by Burnham.” Plaintiff’s Response, p. 13. Thomas notes that “Indiana courts have found that providing tools and equipment [is] some evidence of an employer-employee relationship.” Id. (citing Degussa, 744 N.E.2d at 413) (additional citations omitted). That is a correct statement of law, but Burnham again claims it is based on a misleading factual assertion. Burnham concedes that it paid for the equipment, but states that “PTO, through Jackson, was in charge of . . . the equipment used by . . . plaintiff[,]” that “Jackson ordered and selected the equipment to be used in tying down loads[,]” that he “monitored equipment for wear and made determinations as to when it should be replaced.” Defendant’s Reply, pp. 13-16 (citing deposition testimony of Carpenter (ECF 31-3)4, Thomas (ECF 31-1), and Whorton (ECF 31-2)).5 In short, Burnham contends that Thomas’s response to its motion improperly contorts the facts in an attempt to pigeonhole them into a borrowed servant or dual employer theory of liability, which Burnham contends is inapplicable under the circumstances of this case. Finally, Burnham argues that the assertions Thomas makes to support his borrowed [*18] servant argument “have nothing to do with evaluating the employment relationship between Thomas and PTO—that relationship is not in dispute. Thomas admitted that he is a PTO employee and [does] not . . . claim otherwise.” Defendant’s Reply, p. 12.
Finally, Burnham points to additional evidence that supports its argument that PTO was at all times an independent contractor for Burnham and that it was PTO that “controlled” Thomas’s employment, notwithstanding any general input from Burnham or collaboration between Meurkson and Jackson, which Burnham contends is typical of contractor—subcontractor relationships. Defendant’s Memorandum, p. 13 (citing Armstrong v. Cerestar U.S.A., Inc., 775 N.E.2d 360, 369 (Ind.Ct.App. 2002) (company that contracts with independent contractor not liable for alleged negligence of that contractor); Aldridge v. Cargill Incorporated, 2014 U.S. Dist. LEXIS 50913, 2014 WL 1414882, *5 (N.D. Ind. April 10, 2014) (employees of independent contractor generally not owed duty of safe work environment by entity that hired that independent contractor)).
Burnham maintains that its normal, arms-length business relationship with PTO—or more specifically PTO’s status as an independent contractor—is further evidenced “by three contracts: (1) [t]he April 1, 2005[,] Contract between Burnham and PTO; (2) the July 11, 2008[,] Independent Contractor Agreement [*19] [between PTO and Jackson]; and (3) [t]he April 30, 2013[,] Agreement between PTO Services and Teamsters Local Union No. 142. These three agreements consistently place all responsibility for driver safety and oversight on PTO and its contractor, Jackson. Those contracts are unambiguous in establishing that Burnham did not employ Thomas; that PTO was not acting as Burnham’s agent; and that PTO and Jackson were in charge of all issues related to driver safety generally (and equipment selection specifically).” Defendant’s Memorandum, p. 11.
Burnham quotes extensively from its contract with PTO, noting that it includes the following express language:
1) “P.T.O. will hire and employ all personnel required to perform its obligations under this Agreement, shall have no authority to hire any person on behalf of [Burnham], and any person whom it may employ shall be deemed solely P.T.O.’s employee. P.T.O. shall at all times be regarded as an independent contractor to [Burnham], and the relationship between P.T.O. and [Burnham] shall in no event be construed to be that of principal and agent, master and servant, or employer and employee.” Defendant’s Memorandum, p. 12 (quoting Exh. A (ECF 28-1), [*20] p. 2;
2) “P.T.O. shall have the sole responsibility for all aspects of the employment relationship, including, but not limited to, hiring; supervision; disciplining and terminating; and setting wages, benefits and terms of employment.” Id. (quoting Exh. A, p. 3);
3) “P.T.O. shall have the exclusive responsibility to supervise and direct its employees.” Id.; and
4) “The parties intend that nothing in the Agreement shall be construed to conclude that [Burnham] is the employer, jointly or single [sic], of the employee furnished by P.T.O.” Id. (quoting Exh. A, p. 9).
Burnham also notes that PTO’s own contract with Jackson “made PTO and [Jackson] responsible for equipment and safety.” Id. Burnham points out that this contract, entered into on July 11, 2008, expressly provided that “[Jackson] shall be responsible for . . . providing various Safety Consulting, Accident Investigation and Reporting; Client Equipment Inspections; . . . and other Safety duties as needed[]” and that “Jackson will supply all tools and instruments required to perform services under this Agreement.” Id. (quoting Exh. H (ECF 28-8), pp. 1 and 9).
Finally, Burnham notes that “[t]he Union Agreement includes the following [*21] provisions, which demonstrate another consistent understanding that PTO was responsible for Thomas’ safety and his equipment:
The Union recognizes P.T.O. Services as the sole employer of all employees covered by this Agreement and as the exclusive bargaining agent or party with which the Union is to deal hereunder.
. . .
[PTO] shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition or equipped with safety appliances prescribed by law.
Id., pp. 12-13 (quoting Exh. G (ECF 28-7), pp. 1 and 15). Burnham argues that the express language in all three contracts shows that “[t]he parties clearly contemplated that PTO functioned as Burnham’s independent contractor[]” and so Burnham owed no duty of care to PTO’s employees, including Thomas. In summary, Burnham insists that it “relied on PTO and Jackson to provide qualified drivers, train them and make determinations about the proper equipment for them to use . . . . PTO and Jackson exclusively kept, maintained and distributed the equipment at issue. . . . There is no basis to find Burnham owed Thomas a duty by contract, law or course of dealing.” Id., p. 14. The Agreement between the two companies also mandates [*22] the following: 1) “With respect to its employees provided hereunder, P.T.O. will be exclusively responsible for handling personnel Labor Contract and labor relations matters, including arbitration, Federal Agency and Court proceedings.” Defendant’s Exh. A, p. 4; and 2) “P.T.O. will save [sic] [Burnham] harmless only for those claims by P.T.O. employees against their employer for Workers’ Compensation [claims] . . . and which arise out of injuries sustained in the course of employment by personnel provided [to Burnham] by P.T.O.” Id. Burnham argues that all of these facts, which it insists are undisputable, prove that PTO was Thomas’ employer at the time he was injured and that only PTO owed Thomas a duty of care as a matter of law.
The Indiana Supreme Court in Hale v. Kemp, 579 N.E.2d 63, 67 (Ind. 1991), set out a seven-part test “[t]o determine if an employer-employee relationship exists[.]” The analysis includes the following factors: “(1) the right to discharge; (2) the mode of payment; (3) supplying tools or equipment; (4) belief of the parties in the existence of an employer-employee relationship; (5) control over the means used in the results reached; (6) length of employment; and (7) establishment of work boundaries.” [*23] Id. (citing Fox v. Contract Beverage Packers, Inc., 398 N.E.2d 709 (Ind.App. 1980)). The Indiana Supreme Court further held that “‘the primary consideration is that there was an intent that a contract of employment, either express or implied, did exist. In other words, there must be a mutual belief that an employer-employee relationship did exist.'” Id. (quoting Rensing v. Indiana State Univ. Bd. of Trustees, 444 N.E.2d 1170, 1173 (Ind. 1983)). “[T]he right to exercise control over the manner and means by which the work is to be accomplished is the most important consideration.” Fioretti v. Aztar Indiana Gaming Co., LLC, 790 N.E.2d 587, 589 (Ind.Ct.App. 2003) (quoting Moberly v. Day, 757 N.E.2d 1007, 1010 n. 3 (Ind. 2001)). This test to determine whether an employee-employer relationship exists is well established under Indiana law. See Degussa Corp. v. Mullens, 744 N.E.2d 407, 412 (Ind. 2001) (reaffirming the seven-part test and holding that “[t]hese factors are weighed against each other as part of a balancing test in which the right of the employer to exercise control over the employee is given the greatest weight.”).
In Farr v. Laidig Concrete, Inc., the Indiana Court of Appeals explained as follows:
The Hale test has been used or recognized in a variety of employee/worker’s compensation/borrowed servant cases. See e.g., GKN, 744 N.E.2d 401 (exclusivity of worker’s compensation act in action against general contractor by employee of subcontractor); Verma v. D.T. Carpentry, LLC, 805 N.E.2d 430, 433-34 (Ind.Ct.App. 2004) (whether crane operator was borrowed employee of subcontractor for worker’s compensation [*24] purposes); Fioretti, 790 N.E.2d at 589 (question whether actor was employee or agent of party); Nowicki v. Cannon Steel Erection Co., 711 N.E.2d 536, 539-40 (Ind.Ct.App. 1999) (whether actor was “employed” by two different employers for certain aspects of transaction); Williams v. R.H. Marlin, Inc., 656 N.E.2d 1145, 1151 (Ind.Ct.App. 1995) (whether actor employed by special employer such that he was a borrowed servant). . . .
However, our supreme court in GKN, stated:
A number of cases suggest that if a majority of the seven Hale factors is present, then an employer-employee relationship exists. However, consistent with Hale, we now reaffirm that the factors must be weighed against each other as a part of a balancing test as opposed to a mathematical formula where the majority wins. . . . [W]hen applying this balancing test, the trial court should give the greatest weight to the right of the employer to exercise control over the employee.
Farr v. Laidig Concrete, Inc., 810 N.E.2d 1104, 1106-07 (Ind.Ct.App.), trans. denied, 822 N.E.2d 981 (Ind. 2004) (quoting GKN Co. v. Magness, 744 N.E.2d 397, 402 (Ind. 2001)).
In the present case, Thomas contends that the operations of PTO and Burnham were intertwined to the point that he should be considered an employee of both as a matter of law. He makes many assertions in an attempt to prove that theory and claims that when they are considered as a whole they are sufficient to raise a genuine issue of fact concerning his “employment relationship” with Burnham. Thomas’s [*25] factual assertions in his opposition brief are an attempt to create what used to be referred to in employment discrimination cases as a “convincing mosaic”—a weaving together of facts (often tenuously related or individually insignificant) presented as a whole cloth. But Thomas’s assertions are not convincing and his mosaic does not hold together when examined against Burnham’s evidence, including the express language of the PTO Agreement, the course of dealing between Burnham and PTO, and the evidence that PTO had “control” over Thomas’s work. As Burnham puts it: “Burnham was responsible for scheduling freight, but PTO was responsible for determining the manner, means and methods of delivering that freight. . . . Burnham had no right to control the manner, means or operative detail of how Thomas secured and hauled steel slabs. It relied on PTO to do so.” Defendant’s Reply, p. 13 (italics in original). That is the key point in this case: notwithstanding Ms. Meurkson’s alleged authority to “recommend” that PTO employ certain people (such as Jackson), or that she had input about equipment and safety matters in discussions with Jackson or Whorton, or that the two men (both undisputedly [*26] hired and paid by PTO) were provided business cards emblazoned with the Burnham Trucking name and logo, it was PTO who exercised the requisite “control” over Thomas and his work for purposes of determining his employment status. Thomas’s allegations, taken as true, support his assertion that the operations of the two companies were intertwined to a degree, but do not support his argument that this alleged “commingling” warrants a finding that he should be considered a borrowed servant or dual employee of Burnham as a matter of law; and Burnham’s evidence and argument to the contrary is persuasive. For these reasons, Burnham is entitled to summary judgment on Thomas’ common law negligence claim.
Burnham presents one last argument in its motion for summary judgment, and it’s a solid one, too. Burnham points out that even assuming “the ‘borrowed servant’ doctrine applies as plaintiff contends, [his claim is] barred by the exclusive remedy provisions of the Indiana Workers’ Compensation Act.” Defendant’s Reply, p. 14. If Thomas was Burnham’s borrowed servant or its employee under a dual employer theory, then he “cannot recover from Burnham under a common law tort claim—his claim, like those [*27] discussed in Degussa and GKN, would be barred in tort due to the exclusivity provisions of the [Act].” Id. (citations omitted). Indeed, “[t]he Indiana Worker’s Compensation Act . . . provides the exclusive remedy for employees who suffer injuries arising out of and in the course of employment. Ind. Code § 22-3-2-6. The Act bars a court from hearing a common-law claim brought against an employer for an on-the-job injury.” Nickels v. Bryant, 839 N.E.2d 1211, 1215 (Ind.Ct.App. 2005), trans. denied, 855 N.E.2d 1008 (Ind. 2006) (citing GKN, 744 N.E.2d at 402). The court in Nickels also explained that “even where an employee has multiple employers, the Act remains the employee’s exclusive remedy.” Nickels, 839 N.E.2d at 1215 (citing Degussa, 744 N.E.2d at 412).
At the end of the day, what Thomas is doing is cherry picking facts about the working relationship between PTO and Burnham, specifically the interactions between Meurkson on the one hand and Jackson, Whorton and Bishop on the other. Based on these facts (many of which of course are challenged by Burnham), Thomas makes a leap of faith and argues that this alleged “commingling” of management rendered him a borrowed servant or dual employee, which in turn imposed a duty of care on Burnham. The facts and evidence, however, clearly show that PTO Services, not Burnham, was Thomas’s employer and had the right and responsibility [*28] to control his work, and his strained attempts to argue otherwise are insufficient to survive summary judgment.
As to Burnham’s other two motions—its motion to strike and its motion to deem its statement of material facts admitted—they are rendered moot. The former asks the Court to “enter an order striking the inadmissable and untimely expert opinions” of Sam Werkema, Thomas’ Rule 26(a) expert witness. Burnham argues that Werkema presented conflicting opinions in his Rule 26 report and his subsequent deposition. Werkema’s opinions, however, did not come into play since they focused on the suitability of the equipment and training provided to Thomas (which Werkema opined were both faulty). But Werkema’s opinions are relevant only to the issue of whether Burnham breached its duty of care to Thomas by providing him with faulty equipment, which then caused his injuries. Since the Court concludes that Burnham did not owe any duty of care to Thomas, the issue of breach does not come into the calculus. Burnham’s latter motion to deem its statement of material facts admitted is also moot. In that motion, Burnham protests the fact that Thomas, in the “Statement of Genuine Issues” section of his response brief, [*29] “has not properly contested [Burnham’s Statement of Undisputed Material Facts] in the manner required, deeming those facts admitted for purposes of the pending summary judgment proceedings. [Local Rule] 56-1(b)(2) requires a non-movant to include with its brief ‘a section labeled ‘Statement of Genuine Disputes’ that identifies the material facts that the party contends are genuinely disputed so as to make a trial necessary.’ [Thomas’ response brief] . . . does not address the specific facts cited by Burnham, does not include citations to the record and does not identify how the facts raised by plaintiff contradict or refute those raised by Burnham.” Motion to Deem Facts Admitted, p. 1. Burnham complains that Thomas’ response, rather than identifying genuine disputes, “only attempts to raise what he believes to be the disputed facts[]” and that “[t]his approach is insufficient to contest the facts cited by Burnham.” Id., p. 2. Accordingly, argues Burnham, “[Thomas] has conceded Burnham’s Statement of Undisputed Facts by not contesting them in the manner required by N.D. L.R. 56-1(b).” Id. Burnham has a point here but it doesn’t matter. Burnham has won the war on the dispositive issue and so this underlying [*30] battle need not be waged.

For the reasons discussed above, the motion for summary judgment (ECF 27) is GRANTED and the motion to strike (ECF 36) and the motion to deem statement of facts admitted (ECF 38) are DENIED as moot.
Dated: March 12, 2018.
/s/ William C. Lee
William C. Lee, Judge
U.S. District Court
Northern District of Indiana

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