"In the absence of a transcript or a statement of the evidence, we must conclusively presume that every fact admissible under the pleadings was found or should have been found favorably to the appellee."
How later courts described this case
- "In the absence of a transcript or a statement of the evidence, we must conclusively presume that every fact admissible under the pleadings was found or should have been found favorably to the appellee."
- "One cardinal principle of appellate practice is that a party who fails to raise an issue in the trial court waives its right to raise that issue on appeal."
Written by the judges who cited it.
The opinion
TENNESSEE DIVISION OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Employee: Sean Vance East ) Docket No. 2014-01-0009
)
Employer: Heritage Hosiery Mill ) State File No. 71607-2014
In accordance with Rule 0800-02-22-.02(6), please find attached the Workers’
Compensation Appeals Board’s Order and Opinion Affirming and Remanding
Interlocutory Order of Court of Workers' Compensation Claims in the referenced case.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Order and Opinion Affirming and
Remanding Interlocutory Order of Court of Workers' Compensation Claims was sent to
the following recipients by the following methods of service on this the 12th day of
December, 2014.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email
Sean Vance East, X seanlottie@comcast.net
Employee
Charles Poss, Employer's X charlie.poss@leitnerfirm.com
Attorney
Thomas L. Wyatt, Judge X Via Electronic Mail
Kenneth M. Switzer, X Via Electronic Mail
Chief Judge
Penny Shrum, Clerk, X Penny.Patterson-Shrum@tn.gov
Court of Workers’
Compensation Claims
Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: Matthew.Salyer@tn.gov
TENNESSEE DIVISION OF WORKERS’ COMPENSATION FILED
WORKERS’ COMPENSATION APPEALS BOARD
December 12, 2014
TENNESSEE
Employee: Sean Vance East ) Docket No. 2014-01-0009 \YORKERS' C'OMPENSA TION
) APPEALS BOARD
Employer: Heritage Hosiery Mill ) State File No. 71607-2014 Time: 11 :17 AI\ I
)
)
Appeal from the Court of Workers' )
Compensation Claims )
Thomas L. Wyatt, Judge )
Affirmed and Remanded- Filed December 12,2014
ORDER AND OPINION AFFIRMING AND REMANDING INTERLOCUTORY
ORDER OF COURT OF WORKERS' COMPENSATION CLAIMS
This interlocutory appeal involves an employee who claims to have suffered a work-
related neck and left arm injury on September 4, 2014 while lifting boxes of yarn at
Employer's hosiery mill. Employer provided a panel of physicians on September 16,
2014, and Employee has been receiving authorized medical care for the alleged injury.
On September 29, 2014 Employer filed a C-23 Notice of Denial of Claim for
Compensation, stating the claim was under investigation to address causation. On the
same date Employee filed a Petition for Benefit Determination seeking temporary
disability benefits from September 4, 2014, which was the last day Employee worked.
Following an expedited hearing, the trial court entered an order for medical benefits but
denied temporary disability benefits. The Employee has appealed. Having carefully
reviewed the record, we affirm the decision of the Court of Workers' Compensation
Claims.
1
Judge David F. Hensley delivered the opinion of the Appeals Board, in which Judge
Marshall L. Davidson, III, joined; Judge Timothy W. Conner not participating.
Sean Vance East, East Ridge, Tennessee, employee-appellant, prose
Charles W. Poss, Chattanooga, Tennessee, for the employer-appellant, Heritage Hosiery
Mill
Factual and Procedural Background
This interlocutory appeal follows a November 13, 2014 expedited hearing and the
issuance of an Expedited Hearing Order for Medical Benefits on November 24, 2014.
The November 24, 2014 order awarded medical benefits and denied temporary disability
benefits. The employee, Sean East ("Employee"), filed an Expedited Hearing Notice of
Appeal on November 25, 2014. On December 9, 2014 the record was filed with the
Workers' Compensation Appeals Board. No record of any testimony taken during the
expedited hearing was provided to the Appeals Board, nor was a statement of the
evidence provided. The November 24, 2014 order states that the witnesses at the
expedited hearing were Employee and Employer's Plant Manager. The factual
background included below is taken from the exhibits introduced at the hearing, which
included a transcript of a September 16, 2014 recorded statement of Employee and the
affidavit of Employer's Plant Manager.
Employee is a 45 year old resident of East Ridge, Tennessee. He was hired by
Heritage Hosiery Mill ("Employer") as a Maintenance/Material Handler August 22,
2014, and he began work with Employer three days later on Monday August 25, 2014.
He alleges that on September 4, 2014, which was the last date that Employee worked for
Employer, he injured his neck and left arm while lifting boxes of yam in the course and
scope of his employment. He asserts that on the afternoon of September 4, 2014, he told
his supervisor, Employer's Plant Manager, that his arm was sore following some lifting
of heavy boxes of yam. Employer admits there was a conversation between Employee
and its Plant Manager September 4, 2014, but Employer denies that Employee mentioned
anything about a work injury occurring until Employee called the Plant Manager on
September 8, 2014. There is no issue in this case as to the timeliness of the notice of the
alleged injury.
Employer provided a panel of physicians September 16, 2014, from which
Employee selected Physician's Care, a walk-in clinic near his home. At his initial visit to
the clinic, Employee was diagnosed with a cervical strain with paresthesia to the left arm.
Employee returned to the clinic September 23, 2014 for re-evaluation and stated that he
2
had not improved and that his condition had worsened. He complained of abdominal
pain and expressed concern that he had damaged a hernia repair due to lifting heavy
boxes. He returned to the clinic the following day and reported that the medicines he
had been prescribed were not helping. The report of the September 24, 2014 visit states
that "the tingling is driving him crazy in that hand." Employee was referred to an
orthopedist and he came under the care of Dr. Peter Lund who was selected from a panel
of physicians. Dr. Lund continues to provide authorized treatment for Employee's
alleged work injury.
Employer has not paid temporary disability benefits based upon its assertion that
Employee voluntarily quit his job September 4, 2014. Employee asserts that he did not
voluntarily quit his job and that he was told to go home during the discussion he had with
the Plant Manager on the afternoon of September 4, 2014. This discussion focused on
the lifting Employee had been performing and whether the lifting involved in Employee's
work duties might cause harm to his surgically repaired hernias. Employee had two
hernias that were surgically repaired prior to the start of Employee's work with
Employer. The first hernia surgery was performed in 2012. In the spring of 2014,
Employee had another hernia for which he underwent a surgical repair June 9, 2014.
A transcript of a recorded statement that Employee gave September 16, 2014 was
admitted into evidence and includes the following concerning the September 4, 20 14
discussion Employee had with the Plant Manager:
GH: And who's your current employer?
[Employee]: Well, I'm unemployed. Ah, I actually, ah, don't work for
them anymore. Ah, I had left them on September the 4th. I was, ah,
basically, when I was hired in, I was told that, you know, ah ....
GH: Okay. And so, you reported this to who, on the 41h?
[Employee]: I actually ... I actually ... when I reported it to ... to [the Plant
Manager], that I said, "Listen, you know, I can't be, ah, I can't be lifting
this kind of stuff on my own. I'll have to have some help." And he said,
"Well, unfortunately, the job calls for you to have to do it." And I'm like,
"Well, what do you want me to do? I mean, can I not get some help?" He
said, "Well, no, not really." I said ... he said ... he said, "Well, I don't want
you to hurt yourself." And I said, "Well, what are you saying?" He says ...
3
I said, "Are you saying I need to go home?'' He said, "Well, it probably
would be better." So, I clocked out.
GH: So, now, did you ... did you actually tell him that you thought you had
hurt your arm at that point?
[Employee]: I told him my arm was sore, yes.
GH: Okay. Okay. Now, let's go back, ah, when you said that as of 9/4,
you no longer work for the employer. Now, oh, what is your
understanding, ah, voluntarily quit or terminated?
[Employee]: Well, I really don't know. He just told me he felt like he
needed me to, you know, probably needed me to leave, because he didn't
want me to hurt myself. And I'm like, "Well, I don't want to hurt myself."
You know, I just, ah, so, he just basically asked me to, you know, clock out.
And I said, "Well, do you need my timecard and my badge?" And he said,
"Well, no, you can just bring that back on Thursday." And, ah, which
when 1. .. I guess, when I picked up my check, ah, there on last Thursday.
GH: So, he asked you to leave or you told him ...
[Employee]: I mean, he was actually, basically wanting me not to continue
on.
[Employee]: So, I guess. . . I don't know that you could actually call that
being fired. He didn't really flat out say, "You are fired ... "
GH: Mmhmm.
[Employee]: ... or nothing like that.
GH: And you didn't flat out say you quit?
[Employee]: No, Ma'am.
The affidavit of the Plant Manager states that Employee worked for Employer for
nine days before voluntarily resigning September 4, 2014. The affidavit states that
4
Employee came to the Plant Manager's office September 4, 2014 and said he did not
realize the amount of heavy lifting that would be involved with his job. According to the
affidavit, Employee told the Plant Manager for the first time that he had a hernia that was
surgically repaired and that Employee was concerned that the heavy lifting involved with
the job might cause some problems in the future with his hernia. The following is
included in the affidavit concerning discussions about a work injury and Employee's
continued employment:
I asked [Employee] if he had been injured in any way while working for
[Employer] and he said he had not. He said that he felt he should resign
from the job so that he did not cause an injury to his hernia in the future.
I accepted [Employee's] resignation when he informed me that he was
voluntarily resigning on September 4, 2014. I did not hear from
[Employee] again until September 8, 2014. On that date, he called me and
told me that he had hurt his shoulder or arm when he worked for
[Employer]. This was the first time that [Employee] had ever mentioned to
me that he had been injured on the job. He specifically denied that he had
been injured when I asked him about this on September 4, 2014, the day he
resigned out of his concern for reinjuring his hernia in the future if he
continued work.
Employee filed a Petition for Benefit Determination September 29, 2014.
Following unsuccessful mediation efforts, Employee filed a Request for Expedited
Hearing October 24, 2014, and he marked the form to request that the evidentiary hearing
be conducted by telephone. A Dispute Certification Notice was issued October 28, 2014.
On October 30, 2014 Employee filed a second Request for Expedited Hearing and again
marked the form to request the evidentiary hearing be conducted by telephone. The
expedited hearing was conducted by telephone November 24, 2014. Employee was not
represented by counsel at the hearing. Seven exhibits were introduced without objection,
including the certified records of Physician's Care, the affidavit of the Plant Manager,
and the transcript of Employee's September 16, 2014 recorded statement.
Standard of Review
The standard of review to be applied in reviewing a trial court's decision is
statutorily mandated and limited in scope. Specifically, "[t]here shall be a presumption
that the findings and conclusions of the workers' compensation judge are correct, unless
the preponderance of the evidence is otherwise." Tenn. Code Ann. § 50-6-239(c)(7)
(2014). The trial court's decision must be upheld unless "the rights of the party seeking
5
review have been prejudiced because findings, inferences, conclusions, or decisions of a
workers' compensation judge:
(A) Violate constitutional or statutory provisions;
(B) Exceed the statutory authority of the workers' compensation judge;
(C) Do not comply with lawful procedure;
(D) Are arbitrary, capricious, characterized by abuse of discretion, or
clearly unwarranted exercise of discretion; or
(E) Are not supported by evidence that is both substantial and material in the
light of the entire record.
Tenn. Code Ann.§ 50~6~217(a)(2) (2014).
In applying the above standard, courts have construed substantial and material
evidence to mean "such relevant evidence as a reasonable mind might accept to support a
rational conclusion and such as to furnish a reasonably sound basis for the action under
consideration." Clay County Manor, Inc. v. State of Tennessee, 849 S.W.2d 755, 759
(Tenn. 1993) (quoting Southern Railway Co. v. State Bd. of Equalization, 682 S.W.2d
196, 199 (Tenn. 1984)). Like other courts applying the standard embodied in section 50~
6-217(a)(2), the Board will not disturb the decision of the trial court absent the limited
circumstances identified in the statute.
Analysis
A. Record on Appeal
It is well-settled in Tennessee that the appealing party has the burden to ensure that an
adequate record is prepared on appeal. As the Supreme Court's Special Workers'
Compensation Appeals Panel explained in Vulcan Materials Co. v. Watson, No. M2003-
00975-WC-R3-CV, 2004 Tenn. LEXIS 451 (Tenn. Workers' Comp. Panel May 19,
2004):
The appellant has the duty of preparing a record that conveys a fair,
accurate and complete account of the proceedings in the trial court with
respect to the issues on appeal. Tenn. R. App. P. 24(b). We are provided
with only the trial court's findings of facts and conclusions of law rendered
from the bench and the exhibits introduced at the trial of this cause, which
include three doctor's depositions. We do not have a record of the lay
testimony presented to the trial court. In the absence of an adequate record
on appeal, this Court must presume the trial court's rulings were supported
by sufficient evidence. Manufacturers Consol. Service v. Rodell, 42 S.W.3d
846, 865 (Tenn. App. 2000).
!d. at *6-7.
6
Including a transcript or statement of the evidence as part of the record on appeal
promotes meaningful appellate review and, in tum, public confidence in the integrity and
fairness of the process. As one court has explained, "[f]ull appellate consideration of a
trial court's determination ... is part of the process designed to achieve an accurate and
just decision .... " In reAdoption of JD. W., No. M2000-00151-COA-R3-CV, 2000
Tenn. App. LEXIS 546, at * 12 (Tenn. Ct. App. Aug. 16, 2000). Indeed, "[w]ithout a
transcript or a statement of the evidence, the appellate court cannot know what evidence
was presented to the trial court, and there is no means by which we can evaluate the
appellant's assertion that the evidence did not support the trial court's decision." Britt v.
Chambers, No. W2006-00061-COA-R3-CV, 2007 Tenn. App. LEXIS 38, at *8 (Tenn.
Ct. App. Jan. 25, 2007). Accordingly, "it is essential that the appellate court be provided
with a transcript of the trial proceedings or a statement of the evidence .... " Id. at *7.
See also Whitesell v. Moore, No. M2011-02745-COA-R3-CV, 2012 Tenn. App. LEXIS
894, at *7 (Tenn. Ct. App. Dec. 21, 2012) ("Without a transcript or a statement of the
evidence, we cannot review the evidence ... .");Estate of Cockrill, No. M2010-00663-
COA-R3-CV, 2010 Tenn. App. LEXIS 754, at *11-12 (Tenn. Ct. App. Dec. 2, 2010) ("In
cases where no transcript or statement of the evidence is filed, the appellate court is
required to presume that the record, had it been properly preserved, would have
supported the action of the trial court."); Leek v. Powell, 884 S.W.2d 118, 121 (Tenn. Ct.
App. 1996) ("In the absence of a transcript or a statement of the evidence, we must
conclusively presume that every fact admissible under the pleadings was found or should
have been found favorably to the appellee."). In short, "[a]n incomplete appellate record
is fatal to an appeal," Piper v. Piper, No. M2005-02541-COA-R3-CV, 2007 Tenn. App.
LEXIS 70, at * 11 (Tenn. Ct. App. Feb. 1, 2007), and a reviewing court "must
conclusively presume that the evidence presented supported the facts as found by the trial
court." Whitesell, 2012 Tenn. App. LEXIS 894, at *10.
In the present case, as in Vulcan Materials, the Appeals Board was provided with
no record of any testimony taken during the expedited hearing. Moreover, no statement
of the evidence was offered by the appellant. Under the circumstances, the Appeals
Board will presume that the trial court's rulings were supported by sufficient evidence.
B. Burden of Proof and Causation
For injury dates on or after July 1, 2014, "this chapter shall not be remedially or
liberally construed but shall be construed fairly, impartially, and in accordance with basic
principles of statutory construction." Tenn. Code Ann.§ 50-6-116 (2014). An employee
has the burden of proving each element of his or her workers' compensation claim by a
preponderance of the evidence. Tenn. Code Ann. § 50-6-239(c)(6) (2014); Elmore v.
Travelers Ins. Co., 824 S.W.2d 541, 543 (Tenn. 1992). This includes the burden of
proving that an alleged "injury by accident" arose "primarily out of and in the course and
scope of employment." Tenn. Code Ann. § 50-6-102(13) (2014).
7
In the present case, the trial court made the factual findings set out below that are
presumed to be correct as provided by Tennessee Code Annotated section 50-6-239(c)(7),
unless the preponderance of the evidence is otherwise:
• Employee sustained an injury to his neck and left upper extremity on
September 4, 2014 while lifting boxes ofyam in the course and scope of
his employment;
• Employee voluntarily resigned his employment with Employer on
September 4, 2014 because he was concerned that he might reinjure
surgically-repaired hernias while performing the lifting required to execute
the duties assigned by Employer; and
• Employee has not been totally disabled as a result of the neck and left upper
extremity injury he sustained September 4, 2014 in the course and scope
of his employment with Employer.
As noted above, the Appeals Board presumes that the trial court's findings and its
conclusions are correct, and without a transcript or statement of the evidence, we must
conclusively presume that the evidence presented supported the facts as found by the trial
court. 1
Conclusion
For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court's findings that Employee sustained an injury by accident occurring in the
course and scope of his employment; that Employee is entitled to the medical benefits
specified in the trial court's November 24, 2014 order; and that Employee is not entitled
to an award of temporary disability benefits. Further, we find that the trial court's
decision does not prejudice the rights of the parties or otherwise violate the standards set
forth in Tennessee Code Annotated section 50-6-217(a)(2). Accordingly, the trial court's
decision is affirmed and the case is remanded for any further proceedings that may be
necessary.
avid F. Hensley, Judge
Workers' Compensation A
1
In two position statements filed on December 1 and December 2, 2014, Employee appears to challenge the accuracy of the
transcript of his recorded statement and the accuracy of the affidavit of the Plant Manager. There is nothing in the record to
indicate Employee objected to the introduction of these exhibits. Because there is no transcript of the expedited hearing, it is
unknown whether these issues were raised in the trial court. Accordingly, we decline to address them. See Waters v. Farr, 291
S.W.3d 873, 918 (Tenn. 2009) ("One cardinal principle of appellate practice is that a party who fails to raise an issue in the trial
court waives its right to raise that issue on appeal.").
8