"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."
Written by the judges who cited it.
The opinion
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Employee: Sherry Hale ) Docket No. 2015-06-0150
)
Employer: Prime Package & Label, LLC ) State File No. 22815-2015
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 16th day of July, 2015.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email
Sherry Hale X X shale1865@gmail.com
804 Virginia Ave.
Nashville, TN 37216
Robyn Owens X robyn.owens@libertymutual.com
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
FILED
July 16, 2015
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS' COMPENSATION Time: 9:30AM
WORKERS' COMPENSATION APPEALS BOARD
Employee: Sherry Hale ) Docket No. 2015-06-0150
)
Employer: Prime Package & Label, LLC ) State File No. 22815-2015
)
)
Appeal from the Court of Workers' )
Compensation Claims )
Kenneth M. Switzer, Chief Judge )
Mfirmed and Remanded -Filed July 16, 2015
OPINION AFFIRMING AND REMANDING INTERLOCUTORY ORDER OF
COURT OF WORKERS' COMPENSATION CLAIMS
This interlocutory appeal involves an employee with a preexisting shoulder condition
who alleges to have reinjured her shoulder at work. The employee sought medical care
through private insurance and continued treating with her selected physician after giving
notice of her alleged work injury. Following surgical repair ofthe employee's shoulder,
the employer denied the claim contending the employee did not meet her burden of
proving that the employment caused her injury. The trial court determined that the
employee established sufficient proof of an injury, but did not produce sufficient proof of
causation to establish the injury to be compensable. Stating that the employee has a right
to a causation opinion, the trial court ordered the employer to authorize an evaluation so
the treating physician could provide an opinion on causation. The trial court denied the
employee's request for additional medical and temporary disability benefits. The
employee has appealed. Having carefully reviewed the record, we affirm the denial of
additional medical and temporary benefits and remand the case for further proceedings as
may be necessary.
1
Judge David F. Hensley delivered the opinion of the Appeals Board, in which Judge
Marshall L. Davidson, III, and Judge Timothy W. Conner, joined.
Sherry Hale, Nashville, Tennessee, employee-appellant, prose
Robyn L. Owens, Brentwood, Tennessee, for the employer-appellee, Prime Package &
Label, LLC
Factual and Procedural Background
Sherry Hale ("Employee") is a fifty-year-old resident of Davidson County,
Tennessee. She was hired by Prime Package & Label, LLC ("Employer") in October
2013, as a rewinder. Her work duties required that she lift and remove rolls of product,
which she stated required her to lean her shoulder against equipment when she pulls rolls
of product from the equipment. Several months before she began working with
Employer, Employee experienced symptoms in her right shoulder and sought and
received medical care in January 2013 from Dr. Malcolm Baxter. He identified two
conditions in his assessment including "Rotator Cuff Tear, Non-Trauma," and
"Impingement Syndrome." His "Plan" included a steroid injection in Employee's
shoulder and an MRI study. A January 28, 2013 MRI study indicated "rotator cuff
tendinosis without tendon tear," and "[p]robable small tear of the posterosuperior
labrum." Upon Employee's return to Dr. Baxter on February 1, 2013, the doctor noted
that "rhler MRI demonstrates tendinitis with no rotator cuff tear." Dr. Baxter
administered a second steroid injection and additionally prescribed an oral steroid and
physical therapy. Employee concedes that when she began working with Employer on
October 23, 2013, she suffered from tendinitis in her right shoulder. However, according
to the trial court's order, she testified "she was 'fully functioning' with her shoulder, and
could not have performed her job duties otherwise." 1
In April 2014 Employee experienced increased pain in her right shoulder that
prompted her to seek additional medical care. She testified she received a steroid
injection; however, no medical records addressing the care Employee received in April
2014, or an April 2014 steroid injection, were admitted into evidence at the June 2015
expedited hearing. Employee testified that in October 20 14 she began experiencing what
she described as a "totally different" pain in her right shoulder, prompting her to see her
primary care physician. In a March 19, 2015 Petition for Benefit Determination,
Employee alleges that in October 2014, "I noticed a big difference in pain from
tendonitis[.] I ask[ed] my primary physician to please direct me to [an] orthopedic to see
1
No transcript of the proceedings in the trial court or statement of the evidence was submitted by the pro se
appellant. We have gleaned the facts from the trial court's expedited hearing order and the exhibits introduced at the
June 15, 2015 expedited hearing.
2
what was going on." Employee's primary care physician referred her to Dr. Charles
Kaelin, an orthopedic surgeon. Dr. Kaelin's initial report, dated November 6, 2014,
includes the following history:
The patient presents with upper extremity pain. . . . The pain
occurred years [sic]. The context of the pain: occurred with
movement and in association with work. . . . Prior treatment
consists of immobilization, PT, injections and medication ....
49 year old healthy active right hand dominant Sherry Hale is
here with a several year history of progressive pain in the
right shoulder. In the past she has had three steroid
injections. She had one that provided her with significant
relief. The other two did not help. She has had exercises and
medication. She has a physically demanding job and she is
having a hard time performing there because of the shoulder
pam.
Dr. Kaelin recommended an MRI study, which was completed on November 7,
2014. The MRI study revealed "tendinosis" and "non-distracted tear of the posterior
labrum." Employee testified that on November 10, 2014, she informed her immediate
supervisor, Barry Nichols, and two other individuals at Employer that her MRI indicated
she had a labral tear in her right shoulder. Employer does not contest Employee's
statement that she provided notice of the labral tear to her immediate supervisor.
Employer did not provide Employee a panel of physicians or otherwise arrange for
Employee to receive medical care for her alleged shoulder injury. Employee testified she
filed a claim under her private health insurance for medical care for her shoulder.
Employee testified that she continued working and that she had difficulty "lifting
rolls" due to her pain. The trial court's order includes the following testimony by
Employee:
[T]he rolls with the UV coating off of it - I would have to lean my shoulder
up against the machine just to be able to pull it off. I mean, it was terrible ..
. . Even slicing the rolls, I would have to hold it right there [pointing to her
right shoulder].
Employee testified that during the fourth week after she reported the injury, her employer
gave her "the heaviest rolls to do .... They call them 'five ups.' It doesn't-- You can't
get no more wide [sic] across them [sic] steel spools. . . . I did bad quality work that
week because I was in so much pain lifting them [sic] rolls." Employee did not return to
work after December 3, 2014.
3
Dr. Kaelin surgically repaired Employee's right shoulder on December 5, 2014.
Both the preoperative and postoperative diagnoses included a rotator cuff tear and labral
tear. Employee continued treating with Dr. Kaelin following her surgery.
Employer denied the claim on March 9, 2015, stating the basis in the Notice of
Denial of Claim for Compensation as "[m]edical notes do not describe a work related
injury." Documents admitted into evidence at the expedited hearing included a "Medical
Certificate" signed by Dr. Kaelin on March 26, 2015. The certificate indicates the
document is a form provided by the Tennessee Department of Labor and Workforce
Development, Unemployment Insurance Division, for the purpose of filing for
unemployment insurance benefits. The form includes the question, "[w]as the injury or
condition caused by the individual's last period of employment?" Dr. Kaelin circled "Y"
indicating an affirmative response to the question.
Employee filed a request for an expedited hearing on April29, 2015. The hearing
was held on June 15, 2015. Employee testified that her injury happened "somehow," but
she stated that she does not know how it occurred. She testified, without objection, that
Dr. Kaelin indicated she currently needs additional treatment. Employee testified that
when she saw Dr. Baxter on February 1, 2013, Dr. Baxter did not discuss a "probable
labral tear" with her and only told her about tendinitis in her shoulder.
On cross-examination, Employee testified she hurt her right shoulder before she
began working with Employer when she fell while sleepwalking in late 2012. She
conceded that when she first saw Dr. Kaelin she told him her shoulder pain lasted for
"years," but she testified that was incorrect. She explained, "[w]hen you have a pain, it's
hard to say how long you've had a pain," and "I'm not one to remember dates."
Employee agreed there were no witnesses to her alleged work injury.
Employee additionally conceded on cross-examination that she does not know
when she became injured. She testified the pain from her tendinitis was in a different
area of her shoulder than the pain from her alleged work injury. She testified, "[a]ll I
know is the pain is completely different from tendinitis. Completely." She testified the
pain changed in October 2014, while she was "either at home or at work." In an effort to
clarify this testimony, Employee further testified, "I was working third shift. I was either
trying to go to sleep or work," and, "I was either sleeping or pulling on paper. Trying to
sleep. It ... was very hard to do either one."
On June 25, 2015, the trial court issued its order requiring Employer to authorize
Dr. Kaelin to perform an evaluation of Employee's right shoulder "so that he may opine
whether it is his belief, to a reasonable degree of medical certainty, that [Employee's]
work ... contributed more than fifty percent (50%) in causing her need for medical
treatment, considering all causes." The order further provided that "[i]n the event
medical causation is established, [Employer] shall provide continuing reasonable and
4
necessary care under Dr. Kaelin's direction until such time as [Employee] either returns
to work or attains Maximum Medical Improvement." The June 25, 2015 order denied
Employee's "requests for additional medical and temporary disability benefits ... at this
time."
Employee timely filed a notice of appeal on June 30, 2015, identifying the issues
on appeal to include the denial of past and future medical expenses and temporary
disability benefits. Employer has not appealed. The record was provided to the Appeals
Board on July 13, 2015.
Standard of Review
The standard of review to be applied by the Appeals Board in reviewing a trial
court's decision is statutorily mandated and limited in scope. Specifically, "[t]here shall
be a presumption that the fmdings 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 limited circumstances warranting reversal or modification of
a trial court's decision are specified in the statute:
The workers' compensation appeals board may reverse or modify
and remand the decision of the workers' compensation judge if the rights of
any party have been prejudiced because fmdings, 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 an 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)(3) (2015). In applying the standard set forth in
subparagraph (E) above, 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 Cnty. Manor, Inc. v. State, Dep't of Health & Env't, 849 S.W.2d
755, 759 (Tenn. 1993) (quoting Southern Ry. 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)(3), we will not disturb the decision of the trial court absent the
limited circumstances identified in the statute.
5
Analysis
The appellant bears the burden of showing that the evidence presented in the trial
court preponderates against the trial court's findings. Manufacturers Consolidation
Serv., Inc. v. Rodell, 42 S.W.3d 846, 865 (Tenn. Ct. App. 2000). Likewise, the appellant
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, at *6-7 (Tenn.
Workers' Comp. Panel May 19, 2004) (citing Manufacturers Consolidation Serv., Inc.,
42 S.W.3d at 865):
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.
Without a transcript or a statement of the evidence, the Appeals Board cannot
know what evidence was presented to the trial court beyond the exhibits that were
admitted into evidence and the testimony as stated in the trial court's order. See Britt v.
Chambers, No. W2006-00061-COA-R3-CV, 2007 Tenn. App. LEXIS 38, at *8 (Tenn.
Ct. App. Jan. 25, 2007). When the review of a trial court's decision is accompanied by a
presumption that the findings are correct, "it is essential that the appellate court be
provided with a transcript of the trial proceedings or a statement of the evidence . . . ."
!d. at *7. See also 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. 1994) ("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."). As noted by the Tennessee Court of Appeals, "[a]n incomplete appellate
record is fatal to an appeal on the facts," 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 v. Moore, No. M2011-02745-COA-R3-CV, 2012 Tenn. App.
LEXIS 894, at *10 (Tenn. Ct. App. Dec. 21, 2012).
6
Mindful of the foregoing principles, we note that Employee asserts in the notice of
appeal that "[a]n injury occurred while employed with company." Based on this
assertion, Employee contends she is due past and future medical expenses and temporary
disability benefits.
The trial court found that Employee suffered from tendinitis in her right shoulder
in 20 13 when her employment began, but that she reported "a different type of pain in her
right shoulder in October 2014," and that the November 7, 2014 MRI "revealed
'tendinosis' and 'non-distracted tear of the posterior labrum."' The trial court notes that
Employee credibly testified that when she started working for Employer she was "fully
functioning" with her right shoulder, but began to experience a "totally different" degree
of pain in October 2014, "and that the pain originated from a different location in her
right shoulder." Furthermore, the trial court observed that "Dr. Kaelin unambiguously
concluded that [Employee's] injury or condition was caused by her last period of
employment." Based on Employee's testimony and the medical records, the trial court
determined that Employee "has proven that she sustained an injury," and that she
satisfied her burden of producing "sufficient evidence [of an injury] from which the trial
judge could conclude that the employee is likely to prevail at a hearing on the merits."
Thus, Employer was directed to authorize an evaluation so that Dr. Kaelin could provide
an opinion on causation. Employer has not challenged this determination, and we need
not address it.
Although the trial court denied Employee's requests for additional medical and
temporary disability benefits, which Employee challenges, we have been provided with
no record of any testimony taken during the expedited hearing beyond what is included in
the June 25, 2015 expedited hearing order. Nor have we been provided with a statement
of the evidence. Under these circumstances, we must presume that the trial court's
rulings were supported by sufficient evidence.
Conclusion
For the foregoing reasons, we hold that the evidence does not preponderate
against the trial court's denial of additional medical and temporary disability benefits.
Additionally, we find that the trial court's decision does not violate any of the standards
identified in Tennessee Code Annotated section 50-6-217(a)(3) (2015). Accordingly, the
trial court's decision is affirmed and the case is remanded for any further proceedings that
may be necessary.
David F. Hensley, Judg
Workers' Compensation ppeals Board
7