Howard, Yolanda v. Unum , 2015 TN WC App. 8 ( 2015 )

TENNESSEE DIVISION OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Employee: Yolanda Howard ) Docket No. 2015-01-0005
)
Employer: Unum ) State File No. 84357-2014
In accordance with Rule 0800-02-22-.02(6), please find attached the Workers’
Compensation Appeals Board’s Opinion Affirming and Remanding Interlocutory Order
of Court of Workers' Compensation Claims in the referenced case.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Opinion Affirming and Remanding
Interlocutory Order of Court of Workers' Compensation Claims was sent to the following
recipients by the following methods of service on this the 8th day of April, 2015.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email
Yolanda Howard X yhoward127@yahoo.com
Gerry Siciliano X gms@lutheranderson.com
Thomas Wyatt, 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
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
FILED
April 8, 2015
TENNESSEE
\YORI~RS'C'Ol\IPENSATION
APPEALS BOARD
Time : 1: 13 Pl\I
TENNESSEE DIVISION OF WORKERS' COMPENSATION
WORKERS' COMPENSATION APPEALS BOARD
Employee: Yolanda Howard ) Docket No. 2015-01-0005
)
Employer: Unum ) State File No. 84357-2014
)
)
Appeal from the Court of Workers' )
Compensation Claims )
Thomas Wyatt, Judge )
Affirmed and Remanded - Filed April 8, 2015
OPINION AFFIRMING AND REMANDING INTERLOCUTORY
ORDER OF COURT OF WORKERS' COMPENSATION CLAIMS
This interlocutory appeal involves an employee who alleges that she developed bilateral
carpal tunnel syndrome due to performing repetitive activities while working for the
employer. The employer denied the claim on several grounds, including lack of evidence
that the employee's condition arose primarily out of her employment. Following an
expedited hearing, the trial court denied employee's claim for temporary disability
benefits, concluding that the employee had not come forward with sufficient evidence
that employee's condition arose primarily out of and in the course and scope of her
employment. The employee timely filed a notice of appeal. Having carefully reviewed
the record, which did not include a transcript of the expedited hearing or a statement of
the evidence, we affirm the decision of the Court of Workers' Compensation Claims.
Judge Timothy W. Conner delivered the opinion of the Appeals Board, in which Judge
Marshall L. Davidson, III, and Judge David F. Hensley, joined.
Yolanda Howard, Chattanooga, Tennessee, employee-appellant, pro se
Gerry Siciliano, Chattanooga, Tennessee, for the employer-appellee, Unum
Factual and Procedural Background
The employee, Yolanda Howard ("Employee"), is a 46 year old resident of
Hamilton County, Tennessee. She worked for Unum ("Employer") as a customer service
representative and claims specialist. 1 Her job required repetitive use of her arms, hands,
and fingers while using a computer and telephone. Beginning in 2012, Employee noticed
pain and numbness in her upper extremities. In an effort to alleviate her symptoms,
Employer replaced her keyboard. Employee also took anti-inflammatory medications
and wore wrist splints. In June 2014, Employee resigned her position. The trial court
concluded that her resignation was due to "multiple factors, including workplace stress
caused by alleged unfair management practices." On October 21, 2014, Employee gave
notice that she intended to pursue a workers' compensation claim for bilateral carpal
tunnel syndrome. On December 1, 2014, Dr. Marshall Jemison, a hand specialist
practicing in Chattanooga, diagnosed "probable bilateral carpal tunnel syndrome and
cubital tunnel syndrome." In his report, Dr. Jemison commented that "she has had
diabetes for several years and is on Metformin." Employer filed its Notice of Denial on
December 30, 2014. An EMG/nerve conduction study confirmed a diagnosis of carpal
tunnel syndrome and Dr. Jemison performed a left carpal tunnel release on January 27,
2015.
On January 14, 2015, Employee filed a Petition for Benefit Determination.
Following the issuance of a Dispute Certification Notice on February 9, 2015, Employee
filed a Request for Expedited Hearing. Following the hearing on March 6, 2015, the trial
court entered its Expedited Hearing Order denying Employee's request for benefits on
March 12, 2015. Employee filed her Notice of Appeal on March 18, 2015. The case was
received by the Clerk of the Appeals Board on April 2, 2015.
Standard of Review
The standard of review applicable 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)
(2014 ). The trial court's decision must be upheld unless "the rights of the party seeking
review 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;
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No transcript of the expedited hearing or statement of the evidence has been filed. We have gleaned the factual
background from the pleadings, the exhibits introduced at the expedited hearing, and the trial court's order entered
following the expedited hearing.
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(C) Do not comply with lawful procedure;
(D) Are arbitrary, capricious, characterized by abuse of discretion, or
clearly 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)(2) (2014).
In applying the standard set forth in subparagraph (E) above, courts have
construed "substantial and material" evidence to mean "such relevant evidence as a
reasonable mind might accept to support a rational conclusion and such as to furnish a
reasonably sound basis for the action under consideration." Clay County Manor, Inc. v.
State of Tennessee, 849 S.W.2d 755, 759 (Tenn. 1993) (quoting Southern Railway Co. v.
State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn. 1984)). Like other courts
applying the standard embodied in section 50-6-217(a)(2), we will not disturb the
decision of the trial court absent the limited circumstances identified in the statute.
Analysis
An appellant has the burden to ensure that an adequate record is prepared on
appeal. As the Supreme Court's Special Workers' Compensation Appeals Panel
explained in Vulcan Materials Co. v. Watson, No. M2003-00975-WC-R3-CV, 2004
Tenn. LEXIS 451 (Tenn. Workers' Comp. Panel May 19, 2004):
The appellant has the duty of preparing a record that conveys a fair,
accurate and complete account of the proceedings in the trial court with
respect to the issues on appeal. Tenn. R. App. P. 24(b). We are provided
with only the trial court's findings of facts and conclusions of law rendered
from the bench and the exhibits introduced at the trial of this cause, which
include three doctor's depositions. We do not have a record of the lay
testimony presented to the trial court. In the absence of an adequate record
on appeal, this Court must presume the trial court's rulings were supported
by sufficient evidence.
Id. at *6-7 (citing Manufacturers Consol. Service v. Rodell, 42 S.W.3d 846, 865 (Tenn.
Ct. App. 2000)). We have noted in prior opinions that including a transcript or statement
of the evidence as part of the record on appeal promotes meaningful appellate review
and, in turn, public confidence in the integrity and fairness of the process. See, e.g.,
Payne v. D and D Electric, No. 2014-01-0023 (Tenn. Workers' Comp. Appeals Bd. Dec.
17, 2014). "Full appellate consideration of a trial court's determination ... is part of the
process designed to achieve an accurate and just decision .... " In re Adoption ofJ.D. W.,
No. M2000-00151-COA-R3-CV, 2000 Tenn. App. LEXIS 546, at *12 (Tenn. Ct. App.
Aug. 16, 2000). "Without a transcript or a statement of the evidence, the appellate court
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cannot know what evidence was presented to the trial court, and there is no means by
which we can evaluate the appellant's assertion that the evidence did not support the trial
court's decision." Britt v. Chambers, No. W2006-00061-COA-R3-CV, 2007 Tenn. App.
LEXIS 38, at *8 (Tenn. Ct. App. Jan. 25, 2007). Because no transcript or statement of
the evidence was provided by the appellant in this case, we must presume that the trial
court's findings were supported by sufficient evidence.
Moreover, to be entitled to benefits at an expedited hearing, an employee must
come forward with sufficient evidence from which the trial court reasonably can
determine that the employee is likely to prevail at a hearing on the merits. See Tenn.
Code Ann. § 50-6-239(d)(l) (2014). As discussed by the trial court, the Tennessee
Workers' Compensation Law, as amended on July 1, 2014, requires an employee to
establish that his or her condition arose "primarily out of and in the course and scope of
employment." Tenn. Code Ann. § 50-6-102(13) (2014). In order to satisfy this standard,
the employee must show "by a preponderance of the evidence that the employment
contributed more than fifty percent (50%) in causing the injury, considering all causes."
Tenn. Code Ann. § 50-6-102(13)(B) (2014). In the present case, the only evidence
regarding medical causation was offered by Employer, who provided an opinion from the
treating physician, Dr. Jemison, that Employee's condition was "not primarily related" to
her work activities (emphasis added). In the absence of any evidence from Employee
addressing medical causation, we find that the record supports the trial court's
determination on this issue.
Conclusion
For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court's finding that Employee did not come forward with sufficient evidence to
show that her medical condition arose primarily out of and in the course and scope of
employment. Accordingly, the trial court's decision is affinned and the case is remanded
for any further proceedings that may be necessary.
Tim thy . Conner, Judge
s' Compensation Appeals Board
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