Opinion

Coon v. Commercial Warehouse and Cartage, Inc.

  • 2018 TN WC App. 49
Court
Tennessee Workers' Compensation Appeals Board
Filed
Oct 1, 2018
Status
Published
On the bench
Marshall L. Davidson III, David F. Hensley, Timothy W. Conner
Cited by
0 cases
Authority
More cited than 12.5%

“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

FILED

Oct 01, 2018

01:55 PM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Gerald C. Coon ) Docket No. 2018-06-0018

)

v. ) State File No. 96917-2017

)

Commercial Warehouse )

and Cartage, Inc., et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Joshua D. Baker, Judge )

Affirmed and Remanded – Filed October 1, 2018

In this interlocutory appeal, the employee sought temporary disability benefits and

medical benefits arising from a work accident resulting in low back pain. Following an

expedited hearing, the trial court denied the employee’s request for benefits, concluding

the employee had not presented sufficient evidence to show he is entitled to additional

medical benefits or temporary disability benefits at this stage of the case. The employee

has appealed. We affirm the trial court’s order and remand the case.

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.

Gerald C. Coon, Portland, Tennessee, employee-appellant, pro se

Thomas W. Tucker, III, Nashville, Tennessee, for the employer-appellee, Commercial

Warehouse and Cartage, Inc.

Memorandum Opinion1

Gerald Coon (“Employee”) was employed as a warehouse worker and order picker

for Commercial Warehouse and Cartage, Inc. (“Employer”).2 While in the course and

scope of his employment on September 22, 2017, he reported suffering back pain when a

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.

1

safety lanyard malfunctioned while he was lifting a forty-pound box. Employee did not

request or seek medical treatment that day. During the subsequent expedited hearing, the

parties disputed the course of events culminating in Employee’s medical treatment.

Employee asserted he requested medical treatment on multiple occasions but Employer

refused to provide such treatment. When treatment was ultimately arranged by

Employer, the first provider he saw was a nurse practitioner. By contrast, Employer’s

witnesses apparently testified it provided Employee with multiple panels, including a

panel of orthopedic specialists and a panel of primary care practitioners. According to

one of Employer’s witnesses, the primary care panel was intended to assist Employee in

seeing a medical provider as quickly as possible, which was apparently why a nurse

practitioner was the first provider seen.

In addition, the parties disputed the extent and nature of Employee’s pre-existing

low back condition and the occurrence of additional injurious events after the work

accident. Employee acknowledged he had suffered a low back injury many years ago,

but asserted he had fully recovered prior to the work accident. Employer alleged

Employee had reported a history of on-going low back complaints for many years.

Moreover, Employer identified several non-work-related events occurring after the work

accident that it alleged caused or contributed to Employee’s condition. In response,

Employee asserted the subsequent events were manifestations of the symptoms caused by

the work accident.

Lumbar x-rays completed December 11, 2017, revealed minimal scoliosis but no

other abnormalities. A January 9, 2018 MRI revealed an L4-5 central disc extrusion and,

two days later, Employee’s primary care physician diagnosed lumbosacral radiculopathy

at L5 with multilevel disc degeneration. Employee was eventually evaluated by Dr.

Robert Carver, whom Employee chose from a panel provided by Employer. In his

January 11, 2018 report, Dr. Carver concluded, “it does not appear that the presenting

complaints arose out of his job duties.” He released Employee to return to work.

Employee was apparently evaluated by Dr. Chine S. Logan, an osteopathic doctor

with Nashville Neurosurgery Group.3 In an April 28, 2018 letter, Dr. Logan noted

Employee had a “long-standing history of chronic low back pain.” He also noted that

Employee complained of increased back pain and radicular pain after a “long shift at

work,” but the letter listed no date of accident and provided no description of a work

accident. Dr. Logan concluded Employee “experienced a work related aggravation of a

pre-existing lumbar spondylotic disease process.”

2

Neither party filed a transcript of the expedited hearing or a statement of the evidence. Therefore, we

have gleaned the facts from the pleadings, exhibits, and the trial court’s expedited hearing order.

3

The record contains no medical reports from Dr. Logan, but does contain a “To whom it may concern”

letter from Dr. Logan.

2

Thereafter, medical records were reviewed by Dr. William M. Gavigan, an

orthopedic surgeon. Dr. Gavigan concluded that although Employee likely suffered a

lumbar strain causally-related to the September 22, 2017 work accident, “there is not

more than a 50% probability that the disc herniation occurred on 9-22-17.”

Following the expedited hearing, the trial court declined to award either temporary

disability benefits or additional medical benefits, concluding Dr. Gavigan’s “more

detailed opinion” was “most persuasive,” and Employee had not shown he was likely to

prevail at trial in proving his entitlement to additional medical benefits for his workplace

injury. The trial court further noted Employee had failed to overcome the presumption of

correctness attributable to the causation opinion of Dr. Carver, an authorized treating

physician. Employee has appealed.

Employee did not file a transcript of the expedited hearing or a statement of the

evidence and, therefore, we have been provided no means to review the testimony of any

of the witnesses. Although the record on appeal includes medical records and other

documentary evidence, because we have no record of the testimony of witnesses at the

expedited hearing, “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.” Meier v. Lowe’s Home Centers, Inc., No. 2015-02-0179, 2016 TN Wrk. Comp.

App. Bd. LEXIS 30, at *3 (Tenn. Workers’ Comp. App. Bd. July 27, 2016). 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.”).

Furthermore, Employee has not filed a brief explaining how he believes the trial

court erred. His notice of appeal states that the trial judge “erred in denying the

employee benefits” and that the trial judge “erred by allowing medical records into the

record without proper documentation.” However, because we have no transcript of the

expedited hearing, we do not know what, if any, evidentiary objections were made during

the expedited hearing and how the trial court resolved any such objections. In short,

Employee has not explained how he believes the trial court erred in denying benefits or

admitting any documents into evidence.

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’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 be acting as his counsel, which the law clearly

prohibits. 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

3

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). Therefore, the trial court’s order is

affirmed.

Finally, we note Employer has asserted Employee’s appeal is frivolous, and

Employer seeks sanctions for Employee’s “continued bad acts,” as well as “expenses,

including reasonable attorney’s fees.” Upon careful consideration of the record, we deem

Employee’s appeal to be frivolous. A frivolous appeal is one that is devoid of merit or

brought solely for delay. Yarbrough v. Protective Servs. Co., Inc., No. 2015-08-0574,

2016 TN Wrk. Comp. App. Bd. LEXIS 3, at *11 (Tenn. Workers’ Comp. App. Bd. Jan.

25, 2016). Stated another way, “[a] frivolous appeal is one that . . . had no reasonable

chance of succeeding.” Adkins v. Studsvik, Inc., No. E2014-00444-SC-R3-WC, 2015

Tenn. LEXIS 588, at *30 (Tenn. Workers’ Comp. Panel July 21, 2015). While there is

no indication Employee brought this appeal to delay his case, our review of the record

and Employee’s notice of appeal establishes that the appeal had no reasonable chance of

succeeding. However, we exercise our discretion not to award attorneys’ fees or other

expenses at this time. See Tenn. Comp. R. & Regs. 0800-02-22-.04(6) (2018). The trial

court’s decision is affirmed, and the case is remanded.

4

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Gerald C. Coon ) Docket No. 2018-06-0018

)

v. ) State File No. 96917-2017

)

Commercial Warehouse )

and Cartage, Inc., et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Joshua D. Baker, Judge )

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 1st day of October, 2018.

Name Certified First Class Via Fax Via Sent to:

Mail Mail Fax Number Email

Gerald C. Coon X coon_36@hotmail.com

Thomas W. Tucker, III X ttucker@veazeytucker.com

Joshua D. Baker, Judge X Via Electronic Mail

Kenneth M. Switzer, Chief Judge X Via Electronic Mail

Penny Shrum, Clerk, Court of X Penny.Patterson-Shrum@tn.gov

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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