The opinion
FILED
Mar 19, 2021
10:55 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Geraldine Mann ) Docket No. 2020-04-0059
)
v. ) State File No. 12853-2020
)
ACA Transport, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Robert V. Durham, Judge )
Affirmed and Remanded
The employee, an over-the-road truck driver, alleged suffering an injury to her upper
back and neck while pulling a pin on a fifth wheel. The employer disputes that it
received proper notice of the alleged injury and denies that the injury is compensable.
The employer also raised a defense based upon the “election of remedies” doctrine,
asserting the employee is barred from recovering benefits in Tennessee as a result of
pursuing benefits in Missouri. Following an expedited hearing, the trial court concluded
that the employee was unlikely to prevail at trial in establishing that her current
complaints arose primarily out of and in the course and scope of her employment. The
employee has appealed. Having carefully reviewed the record, we affirm the trial court’s
decision and remand the case.
Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge David F. Hensley joined.
Geraldine Mann, Bolivar, Missouri, employee-appellant, pro se
Emmie Kinnard and Hayley E. Vos, Nashville, Tennessee, for the employer-appellee,
ACA Transport, LLC
1
Memorandum Opinion 1
Geraldine Mann (“Employee”) began working as a truck driver for ACA
Transport, LLC (“Employer”), on September 9, 2019. She alleges that two days later she
injured her upper back and neck while pulling a pin on a fifth wheel. She contends she
immediately informed her supervisor, Ron Sias, of the injury and that she had multiple
discussions with both Mr. Sias and A.C. Aldon, Employer’s owner, regarding her back
injury over the next few weeks. Mr. Sias and Mr. Aldon dispute Employee’s assertion
that she reported her injury, maintaining the first notice they received was via text
message on October 31, 2019.
Employee continued to work for Employer until her termination on January 8,
2020, purportedly for driving in excess of the number of hours permitted by federal law.
That same day, Employee filled out an application to return to work for her previous
employer, RBX, Inc. (“RBX”). She returned to work for RBX until some time in
February 2020.
Following the alleged work injury, Employee presented to Cookeville Regional
Medical Center on October 3, 2019, complaining of difficulty urinating accompanied by
right low back pain, but made no complaints of upper back or neck pain. On October 8,
2019, approximately one month after her alleged injury, Employee underwent a DOT
physical. She reported experiencing back and neck problems related to a 2013 neck
surgery that she said left her with “some limitations.” The DOT medical examiner
indicated Employee’s back and spine were “normal.” No mention was made during this
examination of any recent work injury or of any complaints associated with a recent back
injury.
While working for Employer on December 3, 2019, Employee suffered a work-
related injury to her right hand while coupling a trailer to her truck. She was seen at
Express Wellness Urgent Care for the hand injury. In the history taken at that visit, she
denied back or muscle pains, and her examination revealed she had normal range of
motion in her shoulders. She was diagnosed with a contusion to the right hand.
On January 13, 2020, Employee attended another DOT physical after returning to
work for RBX, which was performed by Susie Robertson, a nurse practitioner and DOT
Medical Examiner at Faith Intermediate Care and Occupational Medicine. The record of
that examination reflects that Employee reported the prior neck surgery in 2013 and that
she had no limitations. Her back and spine were described by the examiner as “normal.”
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.” Tenn. Comp. R. & Regs. 0800-02-22-.03(1) (2020).
2
On February 23, 2020, Employee filed a petition seeking medical benefits from
Employer, asserting that she injured her neck on September 11, 2019 when she was
“[p]ulling the pin on the fifth wheel.” The petition alleged that she gave notice of her
injury on September 11 “and several other dates,” stating that “Employer [would] not file
the claim.” Employer subsequently provided a panel of physicians, and Employee
selected Faith Intermediate Care and Occupational Medicine from the panel. She was
seen the next day by Ms. Robertson, the DOT Medical Examiner who performed
Employee’s January DOT physical. 2 Employee reported she suffered an injury to her
neck on September 11, 2019, and was experiencing back and neck pain. She denied
having received treatment for the injury and reported she was unable to fully rotate her
head or lift her arms above her head. She acknowledged having previously undergone
surgery on her cervical spine but maintained her current symptoms were “in a different
area.” Ms. Robertson noted that Employee’s range of motion in her neck was self-limited
and that she had greater passive range of motion than active range of motion. She had
decreased forward flexion and extension of her shoulders, but the report indicates her
exam was otherwise normal. Ms. Robertson stated in the report that she was “[u]nable to
note if current symptoms are related to an injury in September in light of normal exam
noted on recent DOT physical completed by this provider in January 2020.”
After receipt of Ms. Robertson’s report, Employer denied Employee’s claim for a
September 2019 injury. Employee, a Missouri resident, retained counsel in Missouri,
who filed a claim there despite the fact that Employee had an active Tennessee workers’
compensation claim. 3 On March 4, 2020, Employee was evaluated at Cox South
Emergency Department for complaints of neck pain. She described feeling and hearing
something pop and snap in her neck on September 11, 2019 when pulling a pin on a fifth
wheel. Employee reported increased pain in her neck and numbness in both arms. The
record from that visit reflects Employee stated she had not been evaluated for her injury
and that she had hired an attorney who had instructed her to go to the emergency room.
The report indicated Employee stated she experienced decreasing mobility while turning
her head and raising her arms due to pain. She was diagnosed with cervical pain.
Employee was also evaluated for her alleged work injury at Citizens Memorial Hospital
Clinic on April 14, 2020, where she continued to receive unauthorized medical care,
including physical therapy and, ultimately, an orthopedic referral.
2
The trial court’s order reflects that this visit was with Dr. Jasper Wakeman, a physician in the same
medical practice as Ms. Robertson, whose signature appears at the end of the record. However, the first
page of the February 24, 2020 record indicates the attending provider was Ms. Robertson, which is
consistent with the statement in that record that she was “[u]nable to note if current symptoms are related
to an injury in September in light of normal exam noted on recent DOT physical completed by this
provider in January 2020.” (Emphasis added.)
3
Employee has indicated she does not intend to pursue the Missouri claim. Employer has raised an
election of remedies defense in the event Employee does not dismiss the Missouri claim.
3
Following an expedited hearing, the trial court concluded Employee was unlikely
to prove her injury arose primarily out of and in the course and scope of her employment.
The court principally based its decision on its assessment of Employee’s credibility,
noting that Employee had presented no evidence to corroborate her testimony that her
injury occurred on September 11 or that she had reported her injury to either Mr. Sias or
Mr. Aldon. The court also noted that Employee’s testimony was not consistent with the
medical records entered into evidence, which did not reflect any complaints related to a
work injury until February 24, 2020. The court further noted that both DOT physicals
performed after the alleged injury were silent with respect to an alleged work injury, and
the court concluded that Employee’s explanation for this silence made her credibility
“suspect.” Finally, the court pointed out that, “as to causation, [the authorized medical
provider] stated [s]he was ‘unable to note if current symptoms are related to an injury in
September in light of normal exam noted on recent DOT physical,’” adding that “[u]nder
the circumstances, neither can the Court.” The court denied Employee’s request for
benefits, concluding Employee is “unlikely to prove her current complaints arose
primarily out of and in the course and scope of her employment.” Employee has
appealed. 4
Employee is self-represented in this appeal, as she was in the trial court. Parties
who 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). However, as explained
by the Tennessee Court of Appeals,
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’s determinations rested largely on its assessment of the witnesses’
credibility. As we have previously observed, “[w]hen the trial court has heard in-court
testimony, considerable deference must be afforded in reviewing the trial court’s findings
of credibility and assessment of the weight to be given to that testimony.” Love v. Delta
Faucet Co., No. 2015-07-0195, 2016 TN Wrk. Comp. App. Bd. LEXIS 45, at *17 (Tenn.
Workers’ Comp. App. Bd. Sept. 19, 2016) (citing Tryon v. Saturn Corp., 254 S.W.3d
4
Employee submitted numerous documents and correspondence after filing her notice of appeal,
including additional medical information. However, as we have previously noted, we will not consider on
appeal any documents or other evidence not presented to and considered by the trial court. See 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).
4
321, 327 (Tenn. 2008)). Here, the preponderance of the evidence supports the trial
court’s credibility determinations.
Furthermore, although Employee filed a brief on appeal, her brief did not contain
any legal arguments or explanations describing how the trial court purportedly erred.
Rather, she reiterated the arguments she made in the trial court. When an appellant fails
to offer substantive arguments on appeal, an appellate court’s ability to conduct
meaningful appellate review is significantly hampered. Holmes v. Ellis Watkins d/b/a
Watkins Lawn Care, No. 2017-08-0504, 2018 TN Wrk. Comp. App. Bd. LEXIS 7, at *3-
4 (Tenn. Workers’ Comp. App. Bd. Feb. 13, 2018). It is not our role to search the record
for possible errors or to formulate a party’s legal arguments where that party has provided
no meaningful argument or authority to support its position. Cosey v. Jarden Corp., No.
2017-01-0053, 2019 TN Wrk. Comp. App. Bd. LEXIS 3, at *8 (Tenn. Workers’ Comp.
App. Bd. Jan. 15, 2019). Were we to search the record for possible errors and raise issues
and arguments for Employee, we would be acting as her counsel, which the law prohibits.
Webb v. Sherrell, No. E2013-02724-COA-R3-CV, 2015 Tenn. App. LEXIS 645, at *5
(Tenn. Ct. App. Aug. 12, 2015).
Accordingly, we affirm the decision of the trial court and remand the case. Costs
on appeal are taxed to Employee.
5
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Geraldine Mann ) Docket No. 2020-04-0059
)
v. ) State File No. 12853-2020
)
ACA Transport, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Robert V. Durham, 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 19th day
of March, 2021.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Geraldine Mann X mrsmann51@yahoo.com
Hayley E. Vos X hvos@ortalekelley.com
Emmie Kinnard ekinnard@ortalekelley.com
Jill Armstrong jarmstrong@ortalekelley.com
Robert V. Durham, 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
Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov