“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
Jana McQuiddy ) Docket No. 2015-06-0593
)
v. ) State File No. 21252-2015
)
Saint Thomas Midtown Hospital, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Joshua D. Baker, Judge )
Affirmed and Certified as Final - Filed October 7, 2016
The employee has appealed the trial court’s dismissal of her claim for failure to prove she
suffered an injury arising primarily out of and occurring in the course and scope of her
employment. The employee alleged that she was injured when she slipped in liquid on
her employer’s premises and fell. At trial, the employer moved to dismiss the case at the
close of the employee’s proof, and the trial court granted the motion on the basis that the
employee failed to prove by a preponderance of the evidence that she suffered an injury
arising primarily out of and in the course and scope of her employment. The employee
has appealed. We affirm the trial court’s decision and certify the trial court’s order
dismissing the case as final.
Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in
which Judge David F. Hensley and Judge Timothy W. Conner joined.
Jana McQuiddy, Nashville, Tennessee, employee-appellant, pro se
Lee Anne Murray, Nashville, Tennessee, for the employer-appellee, Saint Thomas
Midtown Hospital
1
Memorandum Opinion1
Jana McQuiddy (“Employee”), a resident of Davidson County, Tennessee, was
employed as a phlebotomist by Saint Thomas Midtown Hospital (“Employer”) when she
allegedly suffered injuries in the course of her employment on March 11, 2015.2 On that
date, Employee claims she slipped in liquid that had been spilled on a floor and fell,
sustaining injuries to her hip, shoulder, and back. Employer initially accepted the claim
as compensable and provided medical treatment. Employee attempted to return to work
upon her release by the authorized treating physician, but her employment was
terminated.
Employee filed a petition for benefit determination seeking temporary and
permanent disability benefits. Employee, the only witness to testify at trial, testified
about her accident and her injuries. According to the trial court’s compensation hearing
order, Employee submitted medical records to the court, but Employer objected to the
court’s consideration of causation opinions contained in the records on the basis that they
were hearsay. The trial court sustained the objection.
At the close of Employee’s proof, Employer requested that the claim be dismissed
because Employee failed to carry her burden of proving she suffered a compensable
injury. See Tenn. Code Ann. § 50-6-239(c)(6) (2015) (“[T]he employee shall bear the
burden of proving each and every element of the claim by a preponderance of the
evidence.”). The trial court granted the motion and dismissed the case, concluding that
Employee failed to establish by a preponderance of the evidence that her injury arose
primarily out of and in the course and scope of her employment.3 Employee has
appealed.
1
“The Appeals Board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the Appeals Board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Appeals Bd. Prac. & Proc. § 1.3.
2
Because neither a transcript of the trial nor a statement of the evidence has been provided, we have
gleaned the facts from the pleadings and the trial court’s compensation hearing order.
3
We note that compensability was not identified as a disputed issue on the dispute certification notice
(“DCN”), and Employer did not list any defense on the DCN challenging the compensability of
Employee’s accident. The trial court’s authority is limited to adjudicating issues certified by a mediator
on the DCN unless a party seeking to add other issues satisfies certain statutory criteria. Tenn. Code Ann.
§ 50-6-239(b)(1) and (2) (2015). The trial court’s compensation hearing order does not indicate whether
these criteria were met. However, we have no transcript of the trial and will not speculate as to what may
have transpired at trial. Moreover, Employee has not raised this issue in either the trial court or on appeal
and, therefore, has waived the issue.
2
A.
This appeal suffers from two significant defects not uncommon in all types of
appeals filed by self-represented litigants: an inadequate record and little or no
meaningful argument concerning the factual or legal basis for the appeal. Either defect
significantly hampers appellate review but, when combined, effective review becomes
impractical. Such is the case here.
The first problem with this appeal is an inadequate record. Although there is no
requirement that a transcript or statement of the evidence be filed to properly perfect an
appeal, a party who elects not to submit either a transcript or a statement of the evidence
does so at his or her peril. Gilbert v. United Parcel Serv., No. 2016-06-0832, 2016 TN
Wrk. Comp. App. Bd. LEXIS 38, at *13 (Tenn. Workers’ Comp. App. Bd. Aug. 24,
2016). The reason, simply put, is that if the appellate court is not provided with a
transcript or a statement of the evidence, the “court cannot know what evidence was
presented to the trial court, and there is no means by which [it] 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).
In this case, testimony was presented to the trial court regarding the incident
forming the basis of Employee’s claim, as well as testimony concerning her injuries. The
trial court relied on this testimony in deciding the case, noting that it considered “the
evidence as a whole.” However, we have been provided with no record of this testimony.
Moreover, no statement of the evidence has been filed. 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 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 obstacle to appellate review in this case is the lack of any meaningful
argument regarding the basis for the appeal. Specifically, in her notice of appeal,
Employee fails to identify any issues for review, asserting only that she has “documents
from Dr. on my condition & treatment plans.” Further, the brief she filed on appeal does
not identify any issues for review, make any argument, or otherwise explain how the trial
court erred in resolving the case. Thus, we have no way of knowing the nature of her
contentions on appeal.
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
3
v. Bd. of Prof’l Responsibility of the Sup. Ct. 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 her counsel. The law clearly
prohibits us from doing so, as 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” 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 conduct an “archaeological dig” into 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).
B.
Employee has filed numerous motions on appeal. These include (1) a “Motion for
No Transcript,” (2) a “Motion to Submit Medical Records,” (3) a “Motion to Dismiss”
regarding records of a particular physician, (4) a “Motion to Dismiss Impairment Rating,”
(5) a “Motion to Re-evaluate for Impairment Rating,” (6) a “Motion to Submit No
Misconduct,” (7) a “Motion to Submit as Physical Condition Evidence,” (8) a “Motion to
Submit Physical Evidence,” and (9) a “Motion to Submit [a] Medical Record.”
Most of Employee’s motions seek our consideration of medical records and other
information she argues establish that she suffered a compensable injury and is entitled to
benefits. However, none of the evidence she now seeks to introduce was provided to the
trial court for its consideration. “Evaluating a trial court’s decision on appeal necessarily
entails taking into account information the trial court had before it at the time the issues
were decided by the court, as opposed to the potentially open-ended universe of
information parties may seek to present on appeal following an adverse decision.”
Hadzic v. Averitt Express, No. 2014-02-0064, 2015 TN Wrk. Comp. App. Bd. LEXIS 14,
at *13 n.4 (Tenn. Workers’ Comp. App. Bd. May 18, 2015). Accordingly, “we will not
consider on appeal testimony, exhibits, or other materials that were not properly admitted
into evidence at the hearing before the trial judge.” Id. See also Tenn. Comp. R. & Regs.
0800-02-22-.04(1) (2015) (“Evidence not contained in the record submitted to the clerk
of the workers’ compensation appeals board shall not be considered on appeal.”).
Employee’s motions to submit medical records and other information not admitted at trial
are denied.
Employee’s “Motion for No Transcript” is likewise denied. Employee asserts that
there is no transcript because all the evidence was not presented at trial. To the extent
Employee maintains that it was somehow impossible to provide a transcript of the trial
because she failed to introduce all the evidence she could have introduced, Employee’s
assertion is incorrect. Regardless of any deficiencies in the proof, a transcript could have
4
been prepared and filed. To the extent Employee appears to request that she be relieved
of an obligation to submit a transcript, we reiterate that, although a transcript is an
important element of appellate review, the submission of a transcript on appeal is
permissive, not mandatory. Navyac v. Universal Health Servs., No. 2015-06-0677, 2016
TN Wrk. Comp. App. Bd. LEXIS 17, at *5 (Tenn. Workers’ Comp. App. Bd. Mar. 31,
2016). Employee’s “Motion to Submit No Misconduct,” “Motion to Dismiss” regarding
records of a physician, and “Motion to Dismiss Impairment Rating,” are denied as well.
The trial court’s decision is affirmed and the court’s order dismissing the case is
certified as final.
5
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Jana McQuiddy ) Docket No. 2015-06-0593
)
v. )
) State File No. 21252-2015
Saint Thomas Midtown Hospital, et al. )
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 7th day of October, 2016.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email
Jana McQuiddy X Jabmcquiddy@gmail.com
Lee Anne Murray X leeamurray@feeneymurray.com
Mary Head X mary@feeneymurray.com
Joshua Davis Baker, X Via Electronic Mail
Judge
Kenneth M. Switzer, X Via Electronic Mail
Chief Judge
Penny Shrum, Clerk, X Penny.Patterson-Shrum@tn.gov
Court of Workers’
Compensation Claims
Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: Jeanette.Baird@tn.gov