            TENNESSEE DIVISION OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Employee: Tracy Payne                                )       Docket No. 2014-01-0023
                                                     )
Employer: D and D Electric                           )       State File No. 60880-2014


In accordance with Rule 0800-02-22-.02(6), please find attached the Workers’
Compensation Appeals Board’s Order 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 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 17th day of December, 2014.
Name                     Certified   First Class   Via   Fax      Via     Email Address
                         Mail        Mail          Fax   Number   Email

Tracy Payne, Employee                                               X     tracypayne@bellsouth.net
Blair Cannon,                                                       X     Blair.cannon@thehartford.com
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
                                                                               December 17, 2014

                                                                                 TENNESSEE
                                                                            WORKERS ' C'Ol\IPENSA TION
                                                                               APPEALS BOARD

            TENNESSEE DIVISION OF WORKERS’ COMPENSATION                         Time: 7:-t5 A~I
               WORKERS’ COMPENSATION APPEALS BOARD


Employee: Tracy Payne                     ) Docket No. 2014-01-0023
                                          )
Employer: D and D Electric                )   State File No. 60880-2014
                                          )
                                          )
Appeal from the Court of Workers'         )
Compensation Claims                       )
Thomas L. Wyatt, Judge                    )




                    Affirmed and Remanded- December 17,2014


     ORDER AFFIRMING AND REMANDING INTERLOCUTORY ORDER
         OF COURT OF WORKERS' COMPENSATION CLAIMS

This interlocutory appeal involves an employee who alleges that he suffered a work-
related injury to his left foot at work, which then aggravated preexisting diabetes and
heart disease. The employer denied that employee has proven a work-related injury and
refused employee's request for medical or temporary disability benefits. At the expedited
hearing, employee, acting in a pro se capacity, was the only witness who testified. Upon
completion of the expedited hearing, the trial court entered an order compelling the
employer to provide medical benefits, but denied the employee's request for temporary
disability benefits. Both parties appealed. Having carefully reviewed the record, 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.

Tracy Payne, Ringgold, Georgia, pro se

Blair Cannon, Birmingham, Alabama, for the employer-appellant/appellee, D and D
Electric
                              Factual and Procedural Background

       The employee, Tracy Payne ("Employee"), is a 53 year old resident of Ringgold,
Georgia. 1 On August 1, 2014, Employee was working as an electrician for D and D
Electric ("Employer") when he alleged an injury to his left foot. The precise mechanism
of injury is unclear, although the Petition for Benefit Determination includes allegations
that Employee "fell on steps" and that he was "earring [sic] tools to truck ... slipped on
steps." The trial judge concluded that "he broke his foot while walking from his
workplace to his truck." Employee reported the incident to Employer the following day.
Employee testified that he was told by Employer to seek medical attention. However,
Employer thereafter denied the claim and refused to provide medical or disability
benefits.

        A Petition for Benefit Determination was filed October 1, 2014. Following
unsuccessful mediation efforts, a Dispute Certification Notice ("DCN") was issued
                  2
October 9, 2014. Two Requests for Expedited Hearing were then filed; one on October
21, 2014 and the second on October 23, 2013. The second request sought an evidentiary
hearing, which occurred on November 14, 2014. Employee was the only witness to
testify. As a result of the hearing, the trial judge issued an Order for Medical Benefits,
but denied Employee's request for temporary disability benefits. Both parties timely
filed Notices of Appeal.

                                        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) (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;
            (C) Do not comply with lawful procedure;
            (D) Are arbitrary, capricious, characterized by abuse of
            discretion, or clearly unwarranted exercise of discretion; or



1
  No transcript of the expedited hearing or statement of the evidence has been filed. Thus, we have
gleaned the factual background from the pleadings and the trial court's order entered after the hearing.
2
  As noted by the trial judge, adequate notice was not identified as a disputed issue on the DCN.

                                                   2
             (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 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 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. Manufacturers Consol. Service v. Rodell, 42 S.W.3d
       846, 865 (Tenn. App. 2000).

Id.at*6-7.

        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 explained, "[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

                                              3
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) ("[w]ithout a transcript or a statement of the
evidence, we cannot review the evidence"); Estate of Cockrill, No. M20 10-00663-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 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, as in Vulcan Materials, the Appeals Board was provided with
no record of any testimony taken during the expedited hearing. Moreover, no statement
of the evidence was offered by either party. Under the circumstances, the Appeals Board
will presume that the trial court's rulings were supported by sufficient evidence.

                                    B. Burden of Proof

        For dates of injury 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); Elmore v. Travelers
Ins. Co., 824 S.W.2d 541, 543 (Tenn. 1992). In order to establish entitlement to
temporary disability benefits, the employee "must prove that he [or she] was ( 1) totally
disabled to work by a compensable injury; (2) that there is a causal connection between
the injury and his [or her] inability to work; and (3) the duration of that period of
disability." Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978). When deciding
whether to initiate temporary disability or medical benefits, the court will consider
whether, from the record before it, the Employee seeking benefits is likely to succeed on
the merits of the claim. See generally McCall v. National Health Care Corp., 100 S.W.3d
209, 214 (Tenn. 2003).


                                             4
                                   C. Medical Benefits

       Tennessee Code Annotated section 50-6-103 sets forth the basic obligations of the
parties in a workers' compensation dispute. "Every employer and employee subject to
this chapter shall, respectively, pay and accept compensation for personal injury or death
by accident arising out of and in the course of employment without regard to fault as a
cause of the injury or death .... " Tenn. Code Ann. § 50-6-103(a) (2014). Tennessee
Code Annotated section 50-6-204 explains that an employer is obligated to provide "such
medical and surgical treatment, medicine . . . and other reasonable and necessary
apparatus ... as ordered by the attending physician .... " Tenn. Code Ann. § 50-6-
204(a)(l)(A) (2014). This section further obligates the employer to "designate a group of
three (3) or more independent reputable physicians, surgeons, chiropractors or specialty
practice groups ... from which the injured employee shall select one to be the treating
physician." Tenn. Code Ann.§ 50-6-204(a)(4)(A) (2014).

        In the present case, an analysis of Employer's obligation to provide medical
benefits pursuant to Tennessee Code Annotated section 50-6-204 is dependent on the
sufficiency of the evidence presented by Employee during the expedited hearing. The
only testimony offered at the expedited hearing was from Employee. No exhibits were
offered into evidence. Employer offered no evidence whatsoever. Since no transcript of
the testimony has been provided in this appeal, this Board must presume that the trial
court's rulings were supported by sufficient evidence. Therefore, this Board concludes
that Employee's testimony provided a sufficient basis for the trial judge to order the
provision of medical benefits. 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.").

                           D. Temporary Disability Benefits

        With respect to Employee's claim for temporary disability benefits, the trial court
concluded that "the Court is unable to assess the nature and extent of Employee's claimed
injury and whether he is disabled from working on account thereof." In its position
statement submitted in support of its Notice of Appeal, Employer argued that the trial
court should have applied this same standard of proof to Employee's demand for medical
benefits. Yet, Tennessee law is clear that an employee must establish certain prima facie
elements to be entitled to temporary disability benefits which are not required in
establishing entitlement to medical benefits. See, e.g., Simpson, 564 S.W.2d at 955. The
trial court concluded that Employee had not established those prima facie elements and
denied the claim for temporary disability benefits. Again, in the absence of a transcript
or statement of the evidence, this Board will presume that the trial court's conclusion on
this issue was supported by sufficient evidence.



                                            5
                                       Conclusion

        For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court's findings that Employee established entitlement to medical benefits, but
did not establish entitlement to temporary disability benefits. 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 .


                                                             .~
                                                          W. Conner, Judge
                                                        s' Compensation Appeals Board




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