“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
Tommy Thurmond ) Docket No. 2015-06-0240
)
v. )
) State File No. 96769-2014
Yates Services )
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 8th day of September, 2015.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email
Tommy Thurmond X tommythurmond@yahoo.com
John R. Rucker, Jr. X jrucker@ruckerlaw.com
Robert Durham, 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 BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Tommy Thurmond ) Docket No. 2015-06-0240
)
v. ) State File No. 96769-2014
)
Yates Services )
)
Appeal from the Court of Workers’ )
Compensation Claims )
Robert Durham, Judge )
Affirmed and Remanded—Filed September 8, 2015
This interlocutory appeal involves an employee who alleges injuries to his neck and
shoulders stemming from his work activities on an assembly line. The employer initially
provided medical care but stopped doing so once the employee was placed at maximum
medical improvement. The trial court determined that, although the employee was
entitled to medical benefits, he was not entitled to temporary disability benefits or the
payment of unauthorized medical expenses. The employee has appealed. We affirm the
trial court’s decision and remand the case for further proceedings as may be necessary.
Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board, in which
Judge David F. Hensley and Judge Timothy W. Conner joined.
Tommy Thurmond, Nashville, Tennessee, employee-appellant, pro se
John R. Rucker, Murfreesboro, Tennessee, for the employer-appellee, Yates Services
1
Factual and Procedural Background
Tommy Thurmond (“Employee”), an employee of Yates Services (“Employer”),
alleges injuries to his neck and shoulders as a result of performing overhead work on
December 7, 2014, at Nissan’s plant in Smyrna, Tennessee.1 Upon being notified of the
injury, Employer provided a panel of physicians, and Employee chose Comprehensive
Health Services (“CHS”), Nissan’s on-site medical clinic. He was evaluated at CHS on
December 9, 2014, and was diagnosed with bilateral trapezius myalgias and a right
shoulder strain. The attending nurse practitioner determined that these injuries were
primarily related to the employment, placed Employee on work restrictions, and ordered
physical therapy.
Employee participated in physical therapy through January 2015. Thereafter, the
attending physician at CHS noted that Employee was “practically” at maximum medical
improvement, released him to full-duty, and terminated his physical therapy. Employee
subsequently returned to CHS where he saw a different physician who observed that
Employee’s trapezius strain had resolved and that his complaints of pain were related to
osteoarthritis that was not work-related. Employee was again released to work without
restrictions. He returned to work but alleges he was unable to perform his job as a result
of complaints associated with his injuries. He voluntarily resigned his employment on
February 20, 2015.
Employee continued to experience pain related to his work injury, and Employer
provided a second panel of physicians. Employee chose Dr. Joseph Speake at Concentra,
who diagnosed cervical and trapezius strains, prescribed medication, and recommended
physical therapy. Dr. Speake eventually placed Employee at maximum medical
improvement with no work restrictions, released him from his care, and instructed him to
return to Concentra as needed. Later, after Employer declined to authorize additional
visits with Dr. Speake, Employee sought treatment from Vanderbilt University Medical
Center where the attending physician took him off work for two days and assigned work
restrictions for two weeks. At a return visit to Vanderbilt, he was diagnosed with neck
pain and discharged. He received bills for those two visits.
The trial court determined that, although Employee was entitled to additional
medical care with Dr. Speake, he failed to establish that the emergency room treatment at
Vanderbilt or the charges for that treatment were reasonable or necessary.2 As a result,
the trial court denied Employee’s request for payment of those unauthorized bills. The
1
No transcript of the expedited hearing or statement of the evidence has been filed. Thus, we have taken
the factual background from the pleadings, exhibits introduced at the expedited hearing, and the trial
court’s order entered after the hearing.
2
Employer has not appealed the trial court’s resolution of the medical treatment issue and, therefore, we
need not address it.
2
trial court also declined to award temporary disability benefits because Employee had not
been totally disabled for a period of time sufficient to trigger the beginning of temporary
total disability benefits and because any period of temporary partial disability was the
result of his voluntary termination rather than his work injury. Employee appealed, and
the record was received by the Clerk of the Workers’ Compensation Appeals Board on
September 1, 2015.
Standard of Review
The standard of review to be applied by this Board 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 a party
“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 an unwarranted exercise of discretion;
(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). Like other courts applying the standards
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.
Analysis
A.
Employee has elected to proceed pro se throughout the proceedings in the trial
court and on appeal, which is his right. However, it is well-settled that self-represented
litigants must comply with the same standards to which parties with legal counsel must
adhere. Watson v. City of Jackson, 448 S.W.3d 919, 926 (Tenn. Ct. App. 2014). As one
court has observed,
[p]arties who decide to represent themselves are entitled to fair and equal
treatment by the courts. The courts should take into account that many pro
se litigants have no legal training and little familiarity with the judicial
system. However, the courts must also be mindful of the boundary between
3
fairness to a pro se litigant and unfairness to the pro se litigant’s adversary.
Thus, the courts must not excuse pro se litigants from complying with the
same substantive and procedural rules that represented parties are expected
to observe.
Akard v. Akard, No. E2013-00818-COA-R3-CV, 2014 Tenn. App. LEXIS 766, at *11
(Tenn. Ct. App. Nov. 25, 2014) (quoting Hessmer v. Hessmer, 138 S.W.3d 901, 903
(Tenn. Ct. App. 2003)). Accordingly, appellate courts will not “dig through the record in
an attempt to discover arguments or issues that [a pro se party] may have made had [that
party] been represented by counsel. To do so would place [the opposing party] in a
distinct and likely insurmountable and unfair disadvantage,” as the appellate court would
essentially be acting as counsel for the unrepresented party. Webb v. Sherrell, No.
E2013-02724-COA-R3-CV, 2015 Tenn. App. LEXIS 645, at *5 (Tenn. Ct. App. Aug. 12,
2015).
B.
With the foregoing principles in mind, we turn to the sufficiency of the record on
appeal. Tennessee law is clear that the appealing party is responsible for ensuring that an
adequate record is prepared on appeal. As explained by one court,
[t]he 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. 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.
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) (citation omitted). See also
Jernigan v. Hunter, No. M2013-01860-COA-R3-CV, 2014 Tenn. App. LEXIS 617, at *5
(Tenn. Ct. App. Sept. 30, 2014) (“It is the duty of the appellant to prepare a record which
conveys a fair, accurate, and complete account of what has transpired in the trial court
with respect to the issues that form the basis of the appeal.”).
Further, including a transcript or statement of the evidence as part of the record on
appeal promotes meaningful appellate review and, in turn, public confidence in the
integrity and fairness of the process. As one court has observed, “[f]ull appellate
consideration of a trial court’s determination . . . is part of the process designed to
achieve an accurate and just decision . . . .” In re Adoption of J.D.W., No. M2000-00151-
COA-R3-CV, 2000 Tenn. App. LEXIS 546, at *12 (Tenn. Ct. App. Aug. 16, 2000).
4
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.
After conducting a hearing at which Employee testified, the trial court determined
that there was sufficient evidence to establish he would likely succeed on the merits of
his claim regarding his request for additional medical benefits. See Tenn. Code Ann. §
50-6-239(d)(1) (2014) (“[A] workers’ compensation judge may . . . enter an interlocutory
order upon determining that the injured employee would likely prevail at a hearing on the
merits.”). However, the trial court also determined that Employee had not presented
sufficient evidence to support his claim for temporary disability benefits or the payment
of unauthorized medical treatment at Vanderbilt.
We have been provided with no record of any testimony taken during the
expedited hearing which, according to the trial court’s order, was relied upon by the court
to resolve the issues. Further, no statement of the evidence has been submitted. Thus,
the totality of the evidence introduced in the trial court is unknown, and we decline to
speculate as to the nature and extent of the proof presented to the trial court. Instead,
consistent with established Tennessee law, we presume that the trial court’s decision was
supported by sufficient evidence. See 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.”).
C.
Employee asserts in his notice of appeal that more than 200 pages of
“documents/evidence” were “withheld” from the trial court during the expedited
hearing. He also asserts that Employer engaged in fraudulent activities designed to deny
him benefits to which he is entitled. In a document submitted with his notice of appeal,
Employee also claims that Employer provided false information to his medical providers
and to the Bureau. Further, he claims that his medical providers were negligent and
falsified and destroyed pertinent medical records. However, the trial judge made no
reference to any of these allegations, and there is no indication in the record that these
issues were raised at the expedited hearing. Issues raised for the first time on appeal are
waived. Long v. Hamilton-Ryker, No. 2015-07-0023, 2015 TN Wrk. Comp. App. Bd.
LEXIS 23, at *14 (Tenn. Workers’ Comp. App. Bd. July 31, 2015). Thus, we refrain
from addressing these contentions as they have not been properly preserved for review on
appeal.
5
Conclusion
For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court’s decision. Further, the trial court’s decision does not violate any of the
standards set forth in Tennessee Code Annotated section 50-6-217(a)(3). Accordingly,
the trial court’s decision is affirmed. The case is remanded for any further proceedings
that may be necessary.
6