Reno, Robert v. Xtreme Concrete Pumping, Inc.

TENNESSEE DIVISION OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Employee: Robert Lindsey Reno ) Docket No. 2014-01-0013
)
Employer: Xtreme Concrete Pumping, Inc. ) State File No. 60650-2014
In accordance with Rule 0800-02-22-.02(6), please find attached the Workers’
Compensation Appeals Board’s Order and 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 Order and 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 16th day of
December, 2014.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email
Michael Wagner, X maw@wagnerinjury.com
Employee's Attorney
Jenny R. Ebersole- X Jebersole-foster@morganakins.com
Foster, Employer's
Attorney
Thomas L. 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
Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: Matthew.Salyer@tn.gov
FILED
Decembu 16, 2014
TENNESSEE
\YORKERS' C'Ol\IPENSA TION
APPEALS BOARD
TENNESSEE DIVISION OF WORKERS’ COMPENSATION Time: 10:50 Al\1
WORKERS’ COMPENSATION APPEALS BOARD
Employee: Robert Lindsey Reno ) Docket No. 2014-01-0013
)
Employer: Xtreme Concrete Pumping, Inc. ) State File No. 60650-2014
)
)
Appeal from the Court of Workers' )
Compensation Claims )
Thomas L. Wyatt, Judge )
Affirmed and Remanded -Filed December 16, 2014
ORDER AND OPINION AFFIRMING AND REMANDING INTERLOCUTORY
ORDER OF COURT OF WORKERS' COMPENSATION CLAIMS
This interlocutory appeal involves an employee who claims to have injured his back
lifting a bucket of concrete slurry from his employer's truck on July 28, 2014. The
employer accepted the injury as compensable but refused to pay temporary disability
benefits on the basis that the employee performed landscaping work for a third party after
his injury on July 28, 2014. Following an expedited hearing, the trial court found that
temporary disability benefits were appropriate. The employer has appealed. Having
carefully reviewed the record, we affirm the decision of the Court of Workers'
Compensation Claims.
Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board, in which
Judge Timothy W. Conner and Judge David F. Hensley, joined.
Jenny R. Ebersole-Foster, Chattanooga, Tennessee, for the employer-appellant, Xtreme
Concrete Pumping, Inc.
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Michael Wagner, Chattanooga, Tennessee, for the employee-appellee, Robert Lindsey
Reno
Factual and Procedural Background
Robert Reno ("Employee") is a 29-year old resident of Hamilton County,
Tennessee. 1 He was employed as a truck driver and concrete worker by Xtreme
Concrete Pumping, Inc. ("Employer"). On July 28, 2014, Employee injured his back
lifting a bucket of concrete slurry. Employer accepted the injury as compensable, and
Employee received authorized medical treatment from Fast Access Healthcare and Dr.
Todd Bonvallet, an orthopedic surgeon.
On August 28, 2014, Employee had restrictions placed on his activities by a
physician's assistant at Fast Access Healthcare of no lifting, pushing or pulling greater
than fifteen pounds, along with no bending or squatting. Dr. Bonvallet continued the
same restrictions and, following an MRI, diagnosed Employee with spondylosis and a
disk protrusion at the L4-5 level. Other than providing light duty work for two or three
hours, Employer did not offer light duty work that accommodated Employee's
restrictions. Employer refused to pay Employee temporary disability benefits on the
basis that he performed landscaping work for a third party after he injured his back on
July 28, 2014, thus demonstrating he could work.
On September 23, 2014, Employee filed a Petition for Benefit Determination
seeking temporary disability benefits. In his petition, Employee described the nature of
his work as "heavy manual labor" and indicated he was lifting a five-gallon bucket of
slurry onto the back of a concrete pump truck when he "twisted and felt [a] low back
pull." Following unsuccessful mediation efforts, a Dispute Certification Notice was
issued on October 20, 2014. Thereafter, Employee filed a Request for Expedited
Hearing on October 29, 2014.
At the expedited hearing, conducted on November 6, 2014, Employer took the
position that Employee had performed landscaping work for Robert Hodson after the
date he claims to have injured his back. According to the trial court's order filed on
November 20, 2014, Employer's owner, Allen Hixson, testified that, prior to July 28,
2014, Employee told him that Mr. Hodson had asked Employee about building a rock
wall at Mr. Hodson's residence. Mr. Hixon believed that Employee built the wall,
though he never observed Employee working at Mr. Hodson's residence. Employer
asserted that because Employee was able to perform the rock work for Mr. Hobson, he
was not entitled to an award of temporary disability benefits.
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No transcript of the expedited hearing or statement of the evidence has been filed. Thus, we have
gleaned the factual background from the pleadings, exhibits introduced at the expedited hearing, and the
trial court' s order entered after the hearing.
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Employee denied working for other employers or earning any income in a self-
employed capacity since his injury on July 28, 2014. He also denied performing the
landscaping job for Mr. Hodson, though he apparently admitted accompanying his
girlfriend when she purportedly performed the work at Mr. Hodson's residence.
According to Employee, he sat in a chair or in his car and, other than providing
instructions, did nothing to assist his girlfriend with the work. Thus, Employee
asserted that he was entitled to temporary disability benefits from July 28, 2014,
forward. He also maintained that the wages itemized on the wage statement admitted
into evidence were inaccurate.
Following the expedited hearing, the trial court concluded that Employee's back
injury was work-related and that, other than working two or three hours for which he
was paid $25 by Employer, Employee had not worked or earned income from any
source since the work injury of July 28, 2014. The trial court also found that because
no medical evidence had been introduced establishing that Employee's activities were
restricted before August 28, 2014, Employee's period of temporary disability began
August 29, 2014 and continued until he was no longer eligible for such benefits.
Employer subsequently filed a timely notice of appeal on November 26, 2014. The
record on appeal was submitted to the Appeals Board and a docketing notice was
issued to the parties on December 9, 2014. For the reasons explained below, the trial
court's decision is affirmed.
Standard of Review
The standard of review to be applied by this Board 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) (20 14 ). The trial court's decision must be upheld un~ess "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 ofthe workers' compensation judge;
(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).
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In applying this standard, 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
A. Record on Appeal
It is well-settled in Tennessee that the appealing party has the burden to ensure
that an adequate record is prepared on appeal. As the Special Workers' Compensation
Appeals Panel has explained,
[t]he 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. 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.
Vulcan Materials Co. v. Watson, No. M2003-00975-WC-R3-CV, 2004 Tenn. LEXIS
451, at *6-7 (Tenn. Workers' Comp. Panel May 19, 2004) (citation omitted).
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. As one court has observed, "[f]ull appellate consideration of a
trial court's determination ... is part of the process designed to achieve an accurate and
just decision .... " In reAdoption of JD. W, No. M2000-00151-COA-R3-CV, 2000
Tenn. App. LEXIS 546, at * 12 (Tenn. Ct. App. Aug. 16, 2000). Indeed, "[w]ithout a
transcript or a statement of the evidence, the appellate court 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). Accordingly, "it is essential that the appellate court be provided
with a transcript of the trial proceedings or a statement of the evidence .... " !d. at 7.
See also Whitesell v. Moore, No. M2011-02745-COA-R3-CV, 2012 Tenn. App. LEXIS
894, at *7 (Tenn. Ct. App. Dec. 21, 2012) ("Without a transcript or a statement of the
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evidence, we cannot review the evidence ... .");Estate of Cockrill, No. M2010-00663-
COA-R3-CV, 2010 Tenn. App. LEXIS 754, at *11-12 (Tenn. Ct. App. Dec. 2, 2010)
("[W]here no transcript or statement of the evidence is filed, the appellate court is
required to presume that the record, had it been properly preserved, would have
supported the action of the trial court."); Leek v. Powell, 884 S.W.2d 118, 121 (Tenn. Ct.
App. 1996) ("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."). In short, "[a]n incomplete appellate record
is fatal to an appeal," Piper v. Piper, No. M2005-02541-COA-R3-CV, 2007 Tenn. App.
LEXIS 70, at * 11 (Tenn. Ct. App. Feb. 1, 2007), and a reviewing court "must
conclusively presume that the evidence presented supported the facts as found by the trial
court." Whitesell, 2012 Tenn. App. LEXIS 894, at *10.
In the present case, we have been provided with no record of any testimony taken
during the expedited hearing which, according to the trial court's order, was relied upon
by the trial court to resolve the issues. Moreover, no statement of the evidence has been
filed by either party. Thus, 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. Instead, consistent with established Tennessee law, we presume that the
trial court's rulings were supported by sufficient evidence.
B. Burden of Proof
For injury dates on or after July 1, 2014, "this chapter shall not be remedially or
liberally construed but shall be construed fairly, impartially, and in accordance with basic
principles of statutory construction." Tenn. Code Ann.§ 50-6-116 (2014). An employee
has the burden of proving each element of his or her workers' compensation claim by a
preponderance of the evidence. Tenn. Code Ann. § 50-6-239(c)(6) (2014); Elmore v.
Travelers Ins. Co., 824 S.W.2d 541, 543 (Tenn. 1992). This includes the burden of
proving that an alleged "injury by accident" arose "primarily out of and in the course and
scope of employment." Tenn. Code Ann. § 50-6-102(13) (2014). Similarly, when a
worker is seeking temporary disability benefits, as in this case, the worker must prove
that he or she is entitled to such benefits. See Gray v. Cullom Machine, Tool & Die, Inc.,
152 S.W.3d 439, 443 (Tenn. 2004).
In this case, the trial court made several factual findings: (1) Employee injured
his back on July 28, 2014, while lifting a bucket of concrete slurry in the course and
scope of his employment with Employer, (2) other than working two or three hours for
which he was paid $25 by Employer, Employee has not worked or earned income from
any source since the work injury, (3) the authorized treating providers restricted
Employee's activities since August 28, 20 14, due to his work injury, and (4) Employee's
average weekly wage was $363.48, resulting in a compensation rate of $242.32 per week.
Based upon these findings, the trial court ordered Employer to pay temporary disability
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benefits from August 28, 2014 to November 19, 2014, with temporary benefits
continuing until Employee is no longer eligible for such benefits. As noted above,
without a transcript or a statement of the evidence, we have no choice but to presume that
the trial court's findings are correct. Vulcan Materials, 2004 Tenn. LEXIS 451, at *7
("In the absence of an adequate record on appeal, this Court must presume the trial
court's rulings were supported by sufficient evidence.").
Conclusion
For the foregoing reasons, we hold that the evidence does not preponderate against the
trial court's findings that Employee's back injury is work-related and that he is entitled to
temporary disability benefits as specified in the trial court's order of November 20, 2014.
Further, we find that the trial court's decision does not violate the standards set forth in
Tennessee Code Annotated section 50-6-217(a)(2). Accordingly, the trial court's
decision is affirmed and the case is remanded for any further proceedings which may be
necessary.
Marshall L. Davidson, III
Presiding Judge
Workers' Compensation Appeals Board
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