Issues raised for the first time on appeal will usually be deemed waived.
How later courts described this case
- Issues raised for the first time on appeal will usually be deemed waived.
Written by the judges who cited it.
The opinion
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Deborah Revnew ) Docket No. 2016-06-0320
)
v. ) State File No. 16063-2016
)
Amazon.com, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims, )
Joshua D. Baker, Judge )
Affirmed and Remanded—Filed October 3, 2016
In this interlocutory appeal, the employer challenges the trial court’s decision to award
medical benefits to an employee alleging injuries resulting from chemical exposure
during the course of her employment. The trial court found the employee was likely to
succeed in establishing that she suffered a compensable injury and ordered the employer
to provide medical treatment. The employer has appealed, arguing that the evidence does
not support the trial court’s decision. We affirm the trial court and remand the case.
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.
Charles E. Pierce, Knoxville, Tennessee, for the employer-appellant, Amazon.com, Inc.
Deborah Revnew, Lebanon, Tennessee, employee-appellee, pro se
Factual and Procedural Background
Deborah Revnew (“Employee”) alleges that she sustained injuries as a result of
exposure to hazardous chemical fumes on January 29, 2016, while in the course and
scope of her employment with Amazon.com, Inc. (“Employer”). Employee was working
as a “picker” in a “HazMat” section of Employer’s facility when she was exposed to
toxic chemicals that had been improperly stored. Although Employee described herself
as “healthy” and “strong,” the fumes, which were being blown around by a fan, made her
eyes and lips burn, her heart race, and she developed a headache. Employee became
1
confused and got “really, really sick,” requiring her co-workers’ assistance in navigating
Employer’s facility. She reported the exposure at the time it occurred and sought first aid
at AmCare, Employer’s on-site medical clinic.
Employee was not offered a panel of physicians, and she sought treatment on her
own at CareSpot on January 30, 2016, complaining of dizziness, confusion, a bad cough,
and shortness of breath. After assessing dizziness, shortness of breath, and vision
problems, Dr. Michelle Cowden, the attending physician, referred Employee for
examination and testing at Summit Medical Center. That testing revealed no
abnormalities.
Employee returned to Dr. Cowden, at which time she was referred for neurology
and ophthalmology evaluations. Dr. Cowden prepared a report regarding Employee’s
exposure and indicated that her condition was causally related to her employment.
Employee saw Dr. Meredith Ezell for an ophthalmology evaluation on February 29,
2016, and she saw Dr. Shan-Ren Zhou for a neurological evaluation on March 15, 2016.
Dr. Zhou ordered an MRI of Employee’s brain, which revealed no intracranial
abnormality, but did reveal pansinusitis, or inflammation of the sinuses, and he referred
her to a neuropsychiatrist. Dr. Ezell diagnosed dry eyes and myopia with presbyopia of
both eyes. Employee has received no additional medical care.
At an expedited hearing, Employee was the only witness to testify, and her
description of the January 29, 2016 incident was uncontradicted. Following the hearing,
the trial court found Employee had presented sufficient evidence to establish she was
likely to succeed at trial and ordered medical benefits with Dr. Cowden, as well as the
payment of Employee’s incurred medical expenses. However, the trial court found
Employee had presented insufficient proof to establish entitlement to temporary disability
benefits or mileage reimbursement.1 Employer has appealed.
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) (2015). The trial court’s
decision may be reversed or modified if 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;
1
Employee has not appealed the trial court’s denial of temporary disability benefits or mileage and, thus,
we need not address those issues.
2
(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).
Analysis
A.
The first issue raised by Employer is “[w]hether the [e]mployee satisfied her
burden of proof to justify the trial court[’]s award of benefits when the employee did not
present sufficient evidence that would justify an award of benefits at a hearing on the
merits.” In conjunction with this argument, Employer asserts that the medical records
contain no opinion regarding causation and that a “mere notation in a medical record that
a patient described an on-the-job injury is insufficient to prove work-relatedness.” We
find Employee did satisfy the applicable burden of proof at the expedited hearing and,
consequently, we agree with the trial court’s award of medical benefits.
An injured worker has the burden of proof on every essential element of his or her
claim. Tenn. Code Ann. § 50-6-239(c)(6) (2015); see also Buchanan v. Carlex Glass
Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5 (Tenn.
Workers’ Comp. App. Bd. Sept. 29, 2015). However, at an expedited hearing, an
employee need not prove every element of his or her claim by a preponderance of the
evidence but must come forward with sufficient evidence from which the trial court can
determine that the employee is likely to prevail at a hearing on the merits consistent with
Tennessee Code Annotated section 50-6-239(d)(1) (2014). McCord v. Advantage Human
Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Tenn.
Workers’ Comp. App. Bd. Mar. 27, 2015). This lesser evidentiary standard “does not
relieve an employee of the burden of producing evidence of an injury by accident that
arose primarily out of and in the course and scope of employment at an expedited
hearing, but allows some relief to be granted if that evidence does not rise to the level of
a ‘preponderance of the evidence.’” Buchanan, 2015 TN Wrk. Comp. App. Bd. LEXIS
39, at *6. In reviewing a trial court’s decision that the evidence presented at an expedited
hearing is sufficient to find an employee is likely to prevail at trial, we must determine
where the preponderance of the evidence lies.
Employer argues the trial court erred in awarding benefits because Employee “has
not shown that she is likely to prevail at a hearing on the merits due to the fact that the
evidence proffered at the Expedited Hearing was insufficient to sustain an award of
benefits at a final hearing.” This argument is contrary to the principles set out above. If
3
an injured worker were required prior to trial to provide proof sufficient to “sustain an
award of benefits at a final hearing” as Employer suggests, the burden of proof at both
stages of a claim would be identical and the language “would likely prevail” in section
50-6-239(d)(1) would be superfluous. Again, at an expedited hearing where pre-trial
benefits are at issue, an employee need not prove every element of his or her claim by a
preponderance of the evidence, but must come forward with sufficient evidence from
which the trial court can determine that the employee is likely to prevail at trial consistent
with section 50-6-239(d)(1).
Here, it is uncontradicted that Employee was exposed to chemicals at work,
immediately began experiencing significant symptoms, and Dr. Cowden assessed
chemical exposure. Moreover, we note that the record contains a form dated February
27, 2016, on which Dr. Cowden indicates the Employee’s condition was causally related
to her employment. As Employer has presented no contrary medical proof, Dr.
Cowden’s opinion is the only medical opinion contained in the record. Accordingly, we
have no difficulty affirming the trial court’s decision to order medical benefits at this
interlocutory stage of the case.
B.
Employer’s second argument on appeal is that an expedited hearing is not a
meaningful process when discovery has not been completed and the evidence is
insufficient to award benefits at a compensation hearing. According to Employer, “a
workers’ compensation judge has the ability to compel an employer to provide benefits to
an employee following an Expedited Hearing even if it appears that the employee will not
prevail at a final hearing on the merits.” Thus, Employer maintains that the expedited
hearing process violates due process.2
The premise of employer’s due process argument – that a trial court may award
benefits at an expedited hearing “even if it appears that the employee will not prevail at a
final hearing on the merits” – is not the standard upon which a trial court determines
whether an employee is entitled to benefits prior to trial. If it appears to the trial court
that an employee is not likely to prevail at trial, the trial court should find that the
employee has not satisfied his or her burden of proof at the expedited hearing and deny
relief. Regardless, the constitutionality of the expedited hearing process was not raised in
the trial court and thus the trial court had no opportunity to render a decision regarding
the issue. Consequently, the issue is waived. Norton v. McCaskill, 12 S.W.3d 789, 795
(Tenn. 2000) (Issues raised for the first time on appeal will usually be deemed waived.);
Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983) (“It has long been the general
rule that questions not raised in the trial court will not be entertained on appeal and this
2
Employer does not indicate whether it relies upon due process principles as embodied in the Tennessee
Constitution, the United States Constitution, or both.
4
rule applies to an attempt to make a constitutional attack.”); Gilliam v. State, No. 03-C-
01-9411-CR-00406, 1995 Tenn. Crim. App. LEXIS 351, at *7-8 (Tenn. Crim. App. Apr.
25, 1995) (“Consideration of an issue raised for the first time on appeal would be unfair
to the trial court” and “results in ‘ambushing’ the other party.”); see also Appeals Board
Prac. & Proc. § 5.5 (“Issues or arguments not raised in the Court of Workers’
Compensation Claims will be deemed waived on appeal.”).
C.
Employer’s final issue on appeal concerns whether the trial court erred in
admitting certain medical records and in admitting statements that it alleges are
inadmissible under the Tennessee Rules of Evidence.
Regarding the medical records, with the exception of the records from Summit
Medical Center and Dr. Zhou, each set of medical records was accompanied by a medical
records custodian’s certification. Moreover, at the expedited hearing, Employer’s
attorney indicated that the parties had compiled a set of records “that leads off with
Summit Medical on the cover page, that we’ve agreed to.” (Emphasis added.)
Regardless, while Employer maintains that medical records were admitted into evidence
that should have been excluded, Employer does not identify those records, and we
decline to speculate as to what record or records Employer asserts should not have been
admitted. “It 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’l Responsibility of the
Sup. Ct. of Tenn., 301 S.W.3d 603, 615 (Tenn. 2010), and we decline to search the record
in an attempt to discover errors that might benefit either party, see McEarl v. City of
Brownsville, No. W2015-00077-COA-R3-CV, 2015 Tenn. App. LEXIS 894, at *7 (Tenn.
Ct. App. Nov. 6, 2015).
With respect to statements Employer asserts were incorrectly admitted as hearsay,
Employer identifies statements contained in Employee’s testimony regarding what she
was told by others at Employer’s facility. Employer also argues that hearsay statements
contained in Employee’s affidavit were admitted in error. Employer lodged an objection
to Employee’s affidavit, and the trial court reserved ruling on that objection until issuance
of its order. While the trial court’s order does not address whether Employer’s objection
was sustained or overruled, there is no indication that, in rendering its decision, the judge
considered any of the statements Employer cites as objectionable, either in Employee’s
affidavit or in her testimony at the hearing. Thus, any error the trial court may have
committed in admitting these statements was harmless.
Conclusion
For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court’s decision at this interlocutory stage of the case. Nor does the trial court’s
5
decision violate any of the standards set forth in Tennessee Code Annotated section 50-6-
217(a)(3). The trial court’s decision is affirmed, and the case is remanded for any further
proceedings that may be necessary.
6
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Deborah Revnew ) Docket No. 2016-06-0320
)
v. ) State File No. 16063-2016
)
Amazon.com, Inc., 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 3rd day of October, 2016.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email
Deborah Revnew X 198 Peace Ave.
Lebanon, TN 37087
W. Troy Hart X wth@mijs.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