“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
Lee A. Walton, Sr. ) Docket No. 2015-08-0306
)
v. )
) State File No. 60505-2015
Averitt Express, Inc. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Allen Phillips, Judge )
Affirmed and Certified as Final – Filed June 2, 2017
The employee alleged an acute injury or compensable aggravation of his pre-existing
neck and back condition after jumping or falling from the back of a trailer at work.
Following an expedited hearing at which the trial court declined to order the initiation of
benefits, the parties proceeded to a final compensation hearing. The trial court issued a
compensation order denying the employee’s claim for benefits, and the employee has
appealed. We affirm the trial court’s decision, dismiss the employee’s case, and certify
the trial court’s order as final.
Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Presiding
Judge Marshall L. Davidson, III, and Judge David F. Hensley joined.
Lee A. Walton, Sr., Brighton, Tennessee, employee-appellant, pro se
Gregory C. Morton, Southaven, Mississippi, for the employer-appellee, Averitt Express,
Inc.
1
Memorandum Opinion 1
Lee Walton (“Employee”) worked for Averitt Express (“Employer”) as a truck
driver. In August 2014, he suffered injuries to his neck and back. After returning to
work, he reported suffering another accident on January 15, 2015, when he jumped or fell
from a trailer while attempting to avoid a heavy rolling container. 2 It is this second
alleged accident that was the subject of Employee’s petition for benefit determination. In
his affidavit, Employee asserted he suffered increased pain and other symptoms after the
second accident. He further alleged that he underwent a cervical fusion as a result of the
January 2015 accident. Employer denied the claim, asserting that Employee failed to
come forward with evidence that his medical condition arose primarily out of his
employment.
In early 2016, Employee filed a request for an expedited hearing, seeking
temporary disability and medical benefits. The trial court issued an order denying the
requested benefits on March 7, 2016. 3 Subsequently, after several continuances, the
court conducted a final compensation hearing on February 8, 2017. We have no record
of the testimony offered at the compensation hearing. Thereafter, the trial court issued a
compensation order denying benefits. Employee has appealed.
As we have noted in the past, our ability to conduct meaningful appellate review is
significantly hampered when an appellant fails to provide a transcript of the hearing or
statement of the evidence, and fails to offer any substantive argument on appeal. Without
a transcript or a statement of the evidence, we cannot know what evidence was presented
to the trial court beyond the exhibits that were admitted into evidence and the testimony
as summarized 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). Review
of a trial court’s decision is accompanied by a presumption that the factual findings are
correct. Tenn. Code Ann. § 50-6-239(c)(7) (2016). Accordingly, “it is essential that the
appellate court be provided with a transcript of the trial proceedings or a statement of the
evidence.” Britt, 2007 Tenn. App. LEXIS 38, 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,
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
The parties did not provide a transcript of the compensation hearing. We have gleaned the facts from
the pleadings, Employee’s affidavit, exhibits, and the trial court’s compensation order.
3
The trial court’s expedited hearing order is not included in the record on appeal.
2
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).
Moreover, Employee has offered no substantive argument explaining how he
believes the trial court erred in denying his claim. Attached to his notice of appeal was
an email in which Employee asserted that the “trial judge erred in his decision,” that the
“reason was unfair,” and that Employer had wrongly “denied [him] medical treatment.”
The remainder of the email contains no recitation of the facts of the case, no issues
presented for review, and no substantive legal argument. In short, Employee has not
made any argument in support of his appeal, and we decline to do so for him. We note
that Employee is self-represented in this appeal, as he was in the trial court. Parties who
decide to represent themselves are entitled to fair and equal treatment by the courts.
Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000). Yet, as
explained by the Tennessee Court of Appeals:
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 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. . . . Pro se
litigants should not be permitted to shift the burden of the litigation to the
courts or to their adversaries.
Hessmer v. Hessmer, 138 S.W.3d 901, 903-04 (Tenn. Ct. App. 2003) (citations omitted).
The trial court in this case concluded that Employee had failed to present any expert
medical opinion supporting his assertion that his medical conditions and his need for
surgery arose primarily out of the January 15, 2015 work accident. Employee has not
alleged on appeal that the trial court disregarded any such expert medical opinion or that
any other evidence offered at trial supported his claim. Consistent with established
Tennessee law, we presume the trial court’s decision is supported by the evidence.
The trial court’s order is affirmed, Employee’s case is dismissed, and the order is
hereby certified as final.
3
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Lee A. Walton, Sr. ) Docket No. 2015-08-0306
)
v. ) State File No. 60505-2015
)
Averitt Express, 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 2nd day of June, 2017.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email
Lee A. Walton, Sr. X leewltn@gmail.com
Gregory C. Morton X greg@sparkman-zummach.com
Allen Phillips, 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
Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: WCAppeals.Clerk@tn.gov