Beecham, Billy v. Celadon Group, Inc.

FILED
Feb 26, 2021
12:15 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Billy R. Beecham ) Docket No. 2019-07-0184
)
v. ) State File No. 82322-2017
)
Celadon Group, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Amber E. Luttrell, Judge )
Affirmed and Certified as Final
The employee, a truck driver, suffered injuries when he fell while exiting his truck. The
employer accepted the claim as compensable and provided workers’ compensation
benefits. At trial, the employer raised the affirmative defense of willful misconduct. The
trial court concluded that the employer failed to establish the affirmative defense and
awarded benefits based on the permanent impairment rating admitted into evidence. The
employee has appealed. After careful consideration, we affirm the trial court’s order and
certify it as final.
Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge David F. Hensley joined.
Billy Beecham, Paris, Tennessee, employee-appellant, pro se
Kenneth D. Veit, Nashville, Tennessee, for the employer-appellee, Celadon Group, Inc.
Memorandum Opinion 1
On October 18, 2017, Billy Beecham (“Employee”), an over-the-road truck driver,
sustained injuries to his neck, back, and shoulder when he fell while exiting his truck.
Employee reported the work incident to his employer, Celadon Group, Inc.
(“Employer”), resumed working, and sought authorized medical treatment from an urgent
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“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).
1
care clinic within a few days of the incident. Employee received conservative treatment
at the urgent care facility and was released to return to full-duty work.
Over the next few months, Employee was seen by various providers at the urgent
care facility and, in July 2018, was referred to an orthopedist for further evaluation.
Employer did not immediately provide a panel of orthopedists, and Employee returned to
the urgent care facility on two more occasions. A provider at the urgent care facility
placed Employee at maximum medical improvement, at which time Employer offered
Employee a panel of orthopedists, from which he selected Dr. Timothy Sweo.
Employee first saw Dr. Sweo on October 10, 2018. Dr. Sweo diagnosed
Employee with cervicalgia and left shoulder pain and imposed temporary restrictions of
no truck driving “for the next few weeks until after [physical] therapy.” Although
Employer was able to accommodate Employee’s work restrictions, Employee declined to
return to work and voluntarily resigned, claiming he was unable to safely operate a truck
in his condition due to pain. On January 9, 2019, Dr. Sweo placed Employee at
maximum medical improvement, released him to regular duty, and assigned a one percent
medical impairment “based on cervical strain.”
Employee obtained another medical evaluation from Dr. Samuel Chung, who
assigned a twenty-six percent medical impairment rating. Because of the disparity in the
two ratings, Employee was examined by Dr. David West through the Bureau of Workers’
Compensation’s Medical Impairment Rating Registry (“MIRR”). Dr. West concluded
the one percent impairment rating assessed by Dr. Sweo was appropriate.
On March 8, 2019, Employee filed a petition seeking additional medical treatment
and temporary disability benefits. The trial court conducted an expedited hearing and
issued an order requiring Employer to authorize additional treatment with Dr. Sweo that
was reasonable, necessary, and causally related to the work injury. The court found
Employee was not entitled to the additional monetary benefits he had requested.
On October 24, 2019, Employer filed a motion to amend the Dispute Certification
Notice to include willful misconduct as an affirmative defense, and the court granted the
motion. At trial, the contested issues were compensability and the extent of Employee’s
vocational disability. The trial court concluded Employer had failed to establish willful
misconduct and found the claim to be compensable. The court awarded permanent
disability benefits based on Dr. West’s one percent medical impairment rating, which was
the only impairment rating entered into evidence. Employee has appealed, questioning
the trial court’s award based on the one percent impairment rating.
Employee is self-represented in this appeal, as he was in the trial court. Parties
who decide to represent themselves are entitled to fair and equal treatment by the courts.
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Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000). However, as
explained by the 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).
Employee has not filed a brief on appeal. Although he appears to contend the trial
court erred in concluding he sustained a one percent impairment, he failed to articulate
any specific issues for our review, failed to describe how the trial court purportedly erred
in its rulings, and failed to provide any relevant legal authority in support of his position.
It is not our role to search the record for possible errors or to formulate Employee’s legal
arguments where he has provided none. 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). As we have stated on numerous occasions, 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 prohibits. Webb v. Sherrell, No. E2013-02724-COA-R3-CV,
2015 Tenn. App. LEXIS 645, at *5 (Tenn. Ct. App. Aug. 12, 2015).
Moreover, Employee has not filed a transcript of the proceedings in the trial court
or a joint statement of the evidence. As a result, our review of the evidence is limited to
the documentary evidence. The only evidence addressing Employee’s medical
impairment is the one percent medical impairment rating from Dr. West. Accordingly,
we conclude the preponderance of the evidence supports the trial court’s determination.
We affirm the trial court’s compensation order and certify it as final. Costs on appeal are
taxed to Employee.
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TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Billy R. Beecham ) Docket No. 2019-07-0184
)
v. ) State File No. 82322-2017
)
Celadon Group, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Amber E. Luttrell, 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 26th day
of February, 2021.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Billy Beecham X billybeecham76@gmail.com
Kenneth D. Veit X kenny.veit@leitnerfirm.com
Crystal Brown crystal.brown@leitnerfirm.com
Amber E. Luttrell, 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