Meier, Giovanna v. Lowe's Home Centers, Inc. , 2017 TN WC App. 66 ( 2017 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Giovanna Meier ) Docket No. 2015-02-0179
)
v. ) State File No. 42423-2015
)
Lowe’s Home Centers, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims, )
Brian K. Addington, Judge )
Affirmed and Certified as Final – Filed November 2, 2017
The employee alleges suffering injuries to her knee and back when she picked up bags of
concrete while working for her employer. Following an expedited hearing, the trial court
determined the employee had not presented sufficient proof to establish she would likely
prevail at trial in proving a compensable injury and declined to award benefits. The
employee appealed, and we affirmed. The parties proceeded to trial, and the trial court
again declined to award benefits, concluding the employee had not shown by a
preponderance of the evidence that her injuries arose primarily out of and in the course
and scope of her employment. The employee has again appealed. We affirm and certify
the trial court’s order as final.
Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in
which Judge David F. Hensley and Judge Timothy W. Conner joined.
George Todd East, Kingsport, Tennessee, for the employee-appellant, Giovanna Meier
Jess Maples, Knoxville, Tennessee, for the employer-appellee, Lowe’s Home Centers,
Inc.
1
Memorandum Opinion1
This is the second appeal of this case. In the first appeal, we set out the relevant
facts as follows:
Giovanna Meier (“Employee”) alleges that she suffered an injury to her
back on April 27, 2015, when she transferred bags of concrete from one
cart to another while working for Lowe’s Home Centers, Inc.
(“Employer”). She described a twisting motion, followed by a pop in her
knee. Employee offered conflicting information regarding whether she felt
immediate pain but, in any event, she did not seek medical treatment that
day. According to the trial court’s order, Employee testified she and her
husband were on their way to the emergency room to have her injury
evaluated the next day when she asked her husband to stop at a store for a
loaf of bread. She testified that when she bent over to retrieve the bread
from a shelf, she felt intense pain. She proceeded to the emergency room
and was evaluated.
Employer denied the claim as not arising out of the employment, and
Employee filed a petition for benefit determination. Following an
expedited hearing, the trial court determined there was insufficient medical
proof to establish a causal link between the employment and the purported
injury. The trial court noted that Employee initially reported a knee injury
and later claimed a back injury. The court denied relief and Employee
appealed.
Meier v. Lowe’s Home Centers, Inc., No. 2015-02-0179, 2016 TN Wrk. Comp. App. Bd.
LEXIS 30, at *1-2 (Tenn. Workers’ Comp. App. Bd. July 27, 2016).
On appeal, we affirmed the trial court’s denial of benefits, noting the absence of a
transcript of the expedited hearing or a statement of the evidence. Consistent with
established Tennessee law, we presumed the trial court’s factual findings were supported
by sufficient evidence and upheld the trial court’s decision. Id. at *3-4.
The parties proceeded to trial, and Employee attempted to offer expert medical
proof via a Standard Form Medical Report (Form C-32) from Dr. Richard Duncan.
However, the trial court excluded that evidence and accompanying documents because
the report did not contain a statement of the physician’s qualifications or a supporting
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
affidavit.2 Although Employee requested that the trial court take judicial notice of Dr.
Duncan’s qualifications, the trial court declined to do so.
Following the trial, the court entered an order declining to find the claim
compensable, explaining that Employee’s testimony was inconsistent with the history Dr.
Duncan set out in his records review. In addition, the trial court noted that Employee had
informed neither Dr. Duncan nor Dr. Benjamin Knox (who had treated her knee
complaints) of the incident that occurred when she stopped to buy bread on the way to the
emergency room. The trial court concluded that, as Dr. Duncan was unaware of that
incident, he could not have considered all causes in rendering his causation opinion as
required by Tennessee Code Annotated section 50-6-102(14)(D). Because Employee
failed to meet her burden of establishing a compensable injury, the trial court declined to
award benefits. Employee has appealed.
Employee raises two issues in her brief: (1) whether the trial court erred in
“speculating” if Dr. Knox and Dr. Duncan considered all causes in rendering their
causation opinions, and (2) whether the trial court erred in excluding Dr. Duncan’s C-32
report. Employer responds that Employee’s brief does not comply with Rule 27 of the
Tennessee Rules of Appellate Procedure,3 and that the trial court did not err in
concluding Employee had failed to carry her burden of proof in establishing a
compensable injury or in excluding Dr. Duncan’s C-32 report.
A.
As an initial matter, we note that Employee has requested that we grant permission
to appeal the trial court’s decision. However, a party seeking to appeal a trial court’s
decision to this Board need only timely file a notice of appeal and, assuming the appeal is
properly perfected, we must resolve the appeal. See Tenn. Code Ann. § 50-6-
2
A “party may introduce direct testimony from a physician through a written medical report” that “shall
be signed by the physician making the report bearing an original signature.” Tenn. Code Ann. § 50-6-
235(c)(1). However, “[a] reproduced medical report that is not originally signed is not admissible as
evidence unless accompanied by an originally signed affidavit from the physician or the submitting
attorney verifying the contents of the report.” Id. In addition, “[a]ny written medical report sought to be
introduced into evidence shall include within the body of the report or as an attachment a statement of
qualifications of the person making the report.” Id.
3
By their own terms, the Tennessee Rules of Appellate Procedure apply to proceedings before the
Supreme Court, Court of Appeals, and Court of Criminal Appeals. Tenn. R. App. P. 1. Thus, while we
may look to these rules for guidance, we are not governed by them. Morgan v. Macy’s, No. 2016-08-
0270, 2016 TN Wrk. Comp. App. Bd. LEXIS 39, at *25 (Tenn. Workers’ Comp. App. Bd. Aug. 31,
2016) (“Although the Tennessee Rules of Appellate Procedure are not binding on us, they are persuasive
authority and we may resort to them for guidance.”); Yarbrough v. Protective Services Co., Inc., No.
2015-08-0574, 2016 TN Wrk. Comp. App. Bd. LEXIS 3, at *12 (Tenn. Workers’ Comp. App. Bd. Jan.
25, 2016) (The rules of appellate procedure, “while instructive, do not control the appellate process before
this Board.”).
3
217(a)(2)(A) (2016). In other words, an appeal to this Board is an appeal as of right, not
a discretionary appeal as Employee suggests. Thus, although Employee has moved for
“permission to appeal,” it is unnecessary for us to grant such permission.
B.
In its analysis of the case, the trial court made clear that it had considered the
testimony of Employee and her husband from the expedited hearing, as well as
Employee’s testimony at the compensation hearing. Although a transcript of the
compensation hearing has been provided, a transcript of the expedited hearing has not.
Nor was it provided in the appeal of the expedited hearing order so as to be a part of that
record. Thus, the record before us does not contain all the testimony considered by the
trial court, which impairs our ability to conduct a meaningful review of the court’s
assessment of that proof. Without a transcript of the expedited hearing, we have no way
of knowing the nature of the testimony presented to and considered by the trial court and
must, therefore, presume that the trial court’s decision was supported by sufficient
evidence. See Vulcan Materials Co. v. Watson, No. M2003-00975-WC-R3-CV, 2004
Tenn. LEXIS 451, at *7 (Tenn. Workers’ Comp. Panel May 19, 2004) (“In the absence of
an adequate record on appeal, this Court must presume the trial court’s rulings were
supported by sufficient evidence.”).4
Aside from not having a complete record to review the trial court’s assessment of
the evidence, Employee has failed to make a meaningful argument regarding the issues
raised on appeal. In her recitation of the issues contained in her brief, Employee makes
conclusory statements asserting the trial court erred in its disposition of the case.
Moreover, the entirety of the “Argument” section of Employee’s brief consists of a single
sentence, i.e., “[f]or the aforementioned reasons employee submits that [she] has carried
the burden for a compensable work related claim consistent with the alternate finding[s]
of the trial judge.” As stated by our 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, and
where a party fails to develop an argument in support of his or her contention or merely
constructs a skeletal argument, the issue is waived.” Sneed v. Bd. of Prof’l Responsibility
of the Sup. Ct. of Tenn., 301 S.W.3d 603, 615 (Tenn. 2010). Employee’s argument
summarily declaring that she should prevail is skeletal at best. See Gomez v. Sable-
Imagination on Sand, No. E2017-00107-COA-R3-CV, 2017 Tenn. App. LEXIS 718
(Tenn. Ct. App. Oct. 26, 2017).
4
The trial court stated at the compensation hearing that, “as far as previous exhibits and the previous
recording from the Expedited Hearing that will be made part of this record, okay?” Notwithstanding the
trial court’s comment, the recording of the expedited hearing is not included in the record on appeal and
does not appear in a listing of exhibits contained in the trial court’s order.
4
C.
Aside from these deficiencies, we note that in order to establish a compensable
injury, Employee was required to prove she suffered an injury by accident arising
primarily out of and in the course and scope of her employment. Tennessee Code
Annotated section 50-6-102(14) (2016). An injury arises primarily out of and in the
course and scope of the employment when the preponderance of the evidence shows that
the “employment contributed more than fifty percent (50%) in causing the injury,
considering all causes.” Tenn. Code Ann. § 50-6-102(14)(B). Further, “[a]n injury
causes death, disablement or the need for medical treatment only if it has been shown to a
reasonable degree of medical certainty that it contributed more than fifty percent (50%)
in causing the death, disablement or need for medical treatment, considering all causes.”
Tenn. Code Ann. § 50-6-102(14)(C). ‘“Shown to a reasonable degree of medical
certainty’ means that, in the opinion of the physician, it is more likely than not
considering all causes, as opposed to speculation or possibility.” Tenn. Code Ann. § 50-
6-102(14)(D).
Employee asserts, with no explanation, that the trial court improperly “speculated”
as to information considered by the physicians in rendering their causation opinions.
However, she has pointed to nothing in the record that would suggest Doctors Duncan
and Knox did, in fact, consider the incident in the store in forming their opinions or that
they were even aware of the incident when addressing causation. Employee has directed
us to nothing that would suggest the trial court’s evaluation of the physicians’ opinions
was incorrect.
Employee also maintains that the trial court erred in excluding Dr. Duncan’s C-32
report because she “substantially complied” with the statutory requirements governing
such reports. However, she has cited no authority establishing that substantial
compliance is sufficient to render the report admissible or even how she substantially
complied. Moreover, Employee has failed to provide any argument or explanation as to
how the trial court abused its discretion in declining to take judicial notice of Dr.
Duncan’s credentials and excluding his report. A trial court’s decision regarding the
admission or exclusion of evidence is reviewed for an abuse of discretion, see Sanford v.
Waugh & Co., 328 S.W.3d 836, 847 (Tenn. 2010), and we find no such abuse here.
The trial court’s decision is affirmed and its June 20, 2017 order is certified as
final.
5
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Giovanna Meier ) Docket No. 2015-02-0179
)
v. ) State File No. 42423-2015
)
Lowe's Home Centers, Inc., et al. )
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 November, 2017.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email
George Todd East X todd@toddeast.com
jennifer@toddeast.com
Jess Maples X jess.maples@leitnerfirm.com
Brian K. Addington, 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