“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 Michael Foust, Jr. ) Docket No. 2017-03-0832
)
v. ) State File No. 54975-2017
)
Pinnacle Delivery Service )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Pamela B. Johnson, Judge )
Affirmed and Remanded – Filed November 17, 2017
In this interlocutory appeal, the claimant asserted he injured his left knee while working
as a delivery helper for the alleged employer. The purported employer argued the
claimant was an independent contractor and did not prove he suffered an injury arising
primarily out of and in the course and scope of the employment. Following an expedited
hearing, the trial court determined the claimant came forward with sufficient evidence to
show he would likely prevail at trial in proving the existence of an employment
relationship, but he failed to come forward with sufficient evidence of the occurrence of
an injury arising primarily out of and in the course and scope of his employment. The
court therefore denied benefits, and the claimant has appealed. However, the claimant
has not filed a transcript of the expedited hearing, a statement of the evidence, or a brief.
We affirm the decision of the trial court, deem the appeal frivolous, and remand the case
for any further proceedings that may be necessary.
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.
Glen B. Rutherford, Knoxville, Tennessee, for the employee-appellant, David Michael
Foust, Jr.
Pinnacle Delivery Services, Knoxville, Tennessee, pro se
1
Memorandum Opinion1
David Michael Foust, Jr. (“Claimant”), a forty-one-year-old resident of Knox
County, Tennessee, worked as a delivery helper for Pinnacle Delivery Service
(“Pinnacle”). Claimant alleged that on or about July 6, 2017, he was using a pallet jack
to move a pallet of flooring materials up a steep driveway at a customer’s residence in
Knox County when he fell and injured his left knee.2 Claimant sought medical treatment,
but Pinnacle denied his claim for workers’ compensation benefits. Moreover, Pinnacle
asserted that it did not employ five or more persons and was not required to have
workers’ compensation insurance pursuant to Tennessee Code Annotated section 50-6-
106(5) (2017).
During the expedited hearing, Pinnacle offered into evidence bills of lading
indicating that Claimant was not making deliveries in Knox County on the date of the
alleged accident or the following day. In addition, the co-worker who allegedly drove the
delivery truck on the date of the injury denied that Claimant was ever injured while they
were working together. In response, Claimant apparently testified that he may have been
mistaken as to the date of injury and that it could have occurred on one of four other
dates.3
Other than filing his notice of appeal, Claimant has not filed anything in support of
his appeal. He provided neither a transcript of the expedited hearing nor a statement of
the evidence. Moreover, he has not filed a brief or position statement explaining how he
believes the trial court erred in denying his claim for temporary disability and/or medical
benefits.
As we have noted in numerous prior cases, 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. See, e.g., Walton v. Averitt Express, Inc., No. 2015-08-0306, 2017 TN Wrk.
Comp. App. Bd. LEXIS 37, at *3 (Tenn. Workers’ Comp. App. Bd. June 2, 2017).
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
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 have not provided a transcript of the expedited hearing or a statement of the evidence. As a
result, we have gleaned the facts from pleadings, exhibits, and the trial court’s expedited hearing order.
3
A July 13, 2017 medical record from Cherokee Health Systems indicated Claimant complained of an
injury at work “2 weeks ago,” which does not correspond to any of the dates Claimant identified as a
possible date of injury.
2
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) (2017). 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 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). Moreover, 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).
In the present case, Claimant has not filed a brief or position statement in support
of his appeal and has offered no argument explaining how he believes the trial court erred
in denying his claim, and we decline to do so for him. The trial court in this case
concluded that Claimant had failed to present sufficient evidence to show he was likely to
succeed at trial in proving he sustained an injury arising primarily out of and in the course
and scope of his employment, as he was unable to identify a work injury “by time and
place of occurrence.” See Tenn. Code Ann. § 50-6-102(14)(A) (2017). Consistent with
established Tennessee law as discussed above, we presume the trial court’s decision on
this issue is supported by the evidence.
Finally, we are compelled to address the frivolous nature of this appeal. A
frivolous appeal is one that is devoid of merit, Combustion Eng’g, Inc. v. Kennedy, 562
S.W.2d 202, 205 (Tenn. 1978), or one that has no reasonable chance of succeeding,
Davis v. Gulf Ins. Grp., 546 S.W.2d 583, 586 (Tenn. 1977). Here, the record on appeal is
so inadequate that we conclude Claimant’s appeal is frivolous. However, we exercise our
discretion, on this occasion, not to award expenses to Pinnacle for Claimant’s frivolous
appeal of the expedited hearing order. Therefore, the trial court’s order is affirmed in all
respects, and this case is remanded for any further proceedings that may be necessary.
3
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
David Michael Foust, Jr. ) Docket No. 2017-03-0832
)
v. ) State File No. 54975-2017
)
Pinnacle Delivery Service )
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 17th day of November, 2017.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email
Glen B. Rutherford X grutherford@knoxlawyers.com
Pinnacle Delivery X g.dupes@pinnacledeliveryservice.com
Service, Self-Represented
Pamela B. Johnson, 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: WCAppeals.Clerk@tn.gov