"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
David Bucher ) Docket No. 2015-05-0184
)
v. )
) State File No. 43268-2015
Diversco/ABM Industries, Inc. )
)
)
Appeal from the Court of Workers' )
Compensation Claims )
Dale Tipps, Judge )
Affirmed and Remanded- Filed November 18,2015
The employee in this interlocutory appeal alleges that lifting five-gallon buckets at work
caused an inguinal hernia. The employer denied the claim, asserting there was no proof
that the alleged injury arose primarily out of the employment. Following an expedited
hearing, the trial court ordered the employer to initiate medical benefits, but denied the
employee's request for payment of past medical expenses and temporary disability
benefits. The employee has appealed the denial of past medical expenses and temporary
disability benefits. After a careful review of the record, we affirm the trial court's
decision and remand the case for such additional proceedings as may be necessary.
Judge David F. Hensley delivered the opinion of the Appeals Board, in which Judge
Marshall L. Davidson, III, and Judge Timothy W. Conner joined.
David Bucher, Manchester, Tennessee, employee-appellant, pro se
David Deming, Nashville, Tennessee, for the employer-appellee, Diversco/ABM
Industries, Inc.
Factual and Procedural Background
David W. Bucher ("Employee") is a sixty-year-old resident of Coffee County,
Tennessee, who began working for Diversco/ABM Industries, Inc. ("Employer"), in
1
August 2014. On April 14, 2015, he was lifting five-gallon buckets in the usual course of
his employment when he felt a pain in his groin. 1 Employee's supervisor testified he
found Employee in the supply room in obvious pain and holding his side. According to
the supervisor, he asked Employee whether he had injured himself at work, but Employee
did not answer at that time. Employee testified that his supervisor told him to go to the
hospital. Employee completed his shift before going to the emergency room at Saint
Thomas Rutherford Hospital ("Saint Thomas"). He did not return to work due to
sickness until April 17, 2015, at which time he told his supervisor that he was continuing
to have pain.
Medical records of Employee's April 14, 2015 visit to Saint Thomas are not
inciuded in the record on appeal. Upon Employee's return to work, Employee discussed
the cause of his abdominal pain with his supervisor and informed him that he was
suffering from a virus and that he might have strained himself while vomiting. The
supervisor thought Employee might have injured himself at work and questioned
Employee concerning whether he had injured himself at work. Although Employee
initially told his supervisor that he had not injured himself at work, he subsequently said
that he might have. According to the supervisor, Employee eventually told him he had
injured himself lifting five-gallon buckets but was afraid that if he reported a work injury
he would lose his job. The supervisor suspected that Employee might have a hernia and
told Employee to go to the hospital. According to Employee, his supervisor told him to
go to Vanderbilt University Medical Center ("Vanderbilt") in Nashville.
Employee was seen in the emergency department at Vanderbilt on April 19, 2015.
Records of the Vanderbilt visit were not admitted into evidence at the expedited hearing,
but records of other medical providers indicate Employee was diagnosed with an inguinal
hernia while at Vanderbilt. On April 22, 2015, Employee called an ambulance due to his
pain and was transported to Saint Thomas. Medical records of this visit were not
admitted into evidence. However, subsequent medical records from Employee's
hospitalization at the Medical Center of Manchester ("Manchester Medical Center")
indicate Employee was referred by someone at Saint Thomas to Dr. Robert Durgin who
administered an inguinal block on April23, 2015.
On May 8, 2015, Employee experienced an episode of severe pain and called an
ambulance to transport him to Manchester Medical Center. During his hospitalization he
saw Dr. James VanWinkle for a surgical consult. The record of the consultation states
that Employee presented with complaints of nausea, vomiting, right lower quadrant pain,
and weight loss, all of which Employee reported had begun three weeks earlier. It
additionally states that Employee reported to Dr. VanWinkle that his abdominal pain
1
Because no transcript of the hearing was provided, we have gleaned the facts from the trial court's
expedited hearing order and the exhibits admitted into evidence at the expedited hearing.
2
"started on April 141h, and he states he lifts buckets at work." Employee followed up
with Dr. VanWinkle on May 15, 2015, at which time the doctor palpated a right inguinal
hernia and recommended surgical repair. Employer refused to authorize the surgery.
Employee has not had surgery, and he has not returned to work. He filed a petition for
benefit determination on May 29, 2015.
Following an expedited hearing, the trial court issued an order on October 6,
2015 requiring Employer to pay for a medical evaluation by Dr. VanWinkle "for the
purpose of obtaining an opinion on the medical causation of [Employee's] inguinal
hernia." The trial court ordered that if medical causation is established, Employer "shall
provide continuing, reasonable and necessary care with Dr. Van Winkle."2 The trial court
denied Employee's request for payment of his past medical expenses and temporary
disability benefits, concluding that Employee "has not come forward with sufficient
evidence from which the Court may conclude he is likely to prevail at a hearing on the
merits of this issue." Employee appeals the trial court's order, stating as the basis for
relief on appeal, "[Employee] asked for payment of past medical expenses [and]
temporary disability benefits."
Standard of Review
The standard we apply 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 ofthe 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.
2
Employer does not challenge the trial court's decision requiring it to pay for the medical evaluation or to
provide medical care if causation is established. Thus, we need not address the issue.
3
Analysis
Two significant defects hamper Employee's appeal. First, we have not been
provided with a record of the testimony presented during the expedited hearing, and no
statement of the evidence has been filed. See Tenn. Comp. R. & Regs. 0800-02-22-.02(2)
(20 15). Secondly, Employee has not provided a statement of the issues on appeal, nor
has he submitted a brief or position statement on appeal. See Tenn. Comp. R. & Regs.
0800-02-22-.02(1) (2015). Either of these defects can render an appeal ineffective, but
the combination of the two can seldom be overcome by an appellant.
The trial court heard the testimony of Employee and his supervisor at the
expedited hearing, and the court relied on that testimony in deciding the case. Without a
record of the testimony 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. None of the medical records address causation or the reasonableness
and necessity of the medical expenses Employee incurred for treatment of his condition.
Neither the medical records nor the additional trial exhibits include sufficient information
to support an award of temporary disability benefits. Consistent with established
Tennessee law, we must presume that the trial court's rulings were supported by
sufficient evidence. See 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.").
The second defect in this appeal is Employee's failure to identify the issues on
appeal or to state the basis for relief on appeal. See Tenn. Comp. R. & Regs. 0800-02-22-
.02( 1) (20 15). In the part of the notice of appeal requesting the appellant to "[p]rovide a
short and plain statement of the issues on appeal or basis for relief on appeal," Employee
stated "[Employee] asked for payment of past medical expenses [and] temporary
disability benefits." While Employee requested the payment of past medical expenses
and temporary disability benefits in his request for expedited hearing, reiterating the
request does not present an issue for review or provide any basis for relief on appeal.
Employee did not file a brief or position statement and has not made any argument or
otherwise explained how the trial court erred in denying his request for past medical
expenses or temporary disability benefits. 3 Thus, we have no way of knowing the nature
of his contentions on appeal.
3
Section 5.3 of the Workers' Compensation Appeals Board's Practices and Procedures provides that "[i]f
the appellant elects to file a position statement in support of an interlocutory appeal, the appellant shall
file such position statement with the Clerk of the Court of Workers' Compensation Claims within three
(3) business days ofthe expiration of the time to file a transcript or statement ofthe evidence, specifying
the issues presented for review and including any argument in support thereof."
4
As stated by the Tennessee Supreme Court, "[i]t is not the role of the courts, trial
or appellate, to research or construct a litigant's case or arguments for him or her." Sneed
v. Bd. of Prof'/ Responsibility of the Supreme Court of Tenn., 301 S.W.3d 603, 615
(Tenn. 2010). Indeed, were we to search the record for possible errors and raise issues
and arguments for Employee, we would essentially be acting as his counsel. The law
clearly prohibits us from doing so, as courts on appeal will not "dig through the record in
an attempt to discover arguments or issues that [a prose party] may have made had [that
party] been represented by counsel" because doing so "would place [the opposing party]
in a distinct and likely insurmountable and unfair disadvantage." Webb v. Sherrell, No.
E2013-02724-COA-R3-CV, 2015 Tenn. App. LEXIS 645, at *5 (Tenn. Ct. App. Aug. 12,
2015). Accordingly, we decline to search the record in an attempt to discover errors that
might benefit either party. McEarl v. City of Brownsville, No. W2015-00077-COA-R3-
CV, 2015 Tenn. App. LEXIS 894, at *7 (Tenn. Ct. App. Nov. 6, 2015).
Conclusion
For the foregoing reasons, 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
5
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
David Bucher ) Docket No. 2015-05-0184
)
v. )
) State File No. 43268-2015
Diversco/ABM Industeries, Inc. )
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 18th day of November, 2015.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email
David Bucher X X 3338 Murfreesboro Hwy., Lot 2
Manchester, TN 37355
David Deming X ddeming@manierherod.com
Dale Tipps, 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