             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD


Shawn Sirkin                               ) Docket No.     2015-08-0292
                                           )
v.                                         ) State File No. 44984-2015
                                           )
Trans Carriers, Inc., et al.               )
                                           )
                                           )
Appeal from the Court of Workers’          )
Compensation Claims                        )
Jim Umsted, Judge                          )


        Affirmed in Part, Vacated in Part, and Remanded - Filed May 9, 2016


In this interlocutory appeal, the employee, a truck driver, injured her shoulder when she
slipped getting out of the employer’s truck after checking the on-board computer system
to determine whether she had been assigned a load. The employer denied the claim and
terminated the employee for failing to report for work. Following an expedited hearing,
the trial court found that the employee’s injury arose primarily out of and in the course
and scope of her employment and ordered medical benefits in the form of a panel of
physicians. The trial court also found that the evidence was insufficient to award
temporary disability benefits or past medical expenses. The employer has appealed the
trial court’s award of medical benefits. We affirm the trial court’s decision to the extent
it orders a panel of physicians but vacate the trial court’s finding regarding
compensability of the claim at this stage of the case.

Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board, in which
Judge David F. Hensley and Judge Timothy W. Conner joined.

B. Duane Willis, Nashville, Tennessee, for the employer-appellant, Trans Carriers, Inc.

Shawn Sirkin, Brooksville, Florida, employee-appellee, pro se


                                            1
                                 Factual and Procedural Background

       Shawn Sirkin (“Employee”) was employed as a truck driver by Trans Carriers,
Inc. (“Employer”). On May 20, 2015, Employee walked across the street from her home
to her assigned tractor trailer to check the truck’s on-board computer system,
“Qualcomm,” to determine whether she had been assigned a load to deliver. She also
went to jump-start the truck’s batteries per the suggestion of her supervisor and
dispatcher, Jennifer Mohundro.1 As Employee was climbing down from the truck, she
reported slipping on a wet step and injuring her right shoulder. According to Employee,
this was the third work-related incident in six weeks involving her shoulder.

        Employee had been off of work and was scheduled to return on May 18, 2015.
However, she asked for and received permission to resume working on May 19, 2015.
On that date, she requested another day off. In response to Employee’s request, Ms.
Mohundro responded that she was “struggling” as a result of Employee’s continued
absence and that Employee had been scheduled a “good pre-plan.”2 She further stated,
“I’ll push it out until you let me know you are coming back.”

       The following day, May 20, 2015, Employee went to her truck to check
Qualcomm, the on-board computer system linked to Employer’s dispatch system, and to
attend to the truck’s dead batteries as had been suggested by Ms. Mohundro the day
before. Although the evidence was conflicting, Employee testified that a driver could
accept or reject a load only by indicating that decision in Qualcomm. Regardless, she
discovered that she had not been assigned a load and, while exiting the truck, slipped on a
step. She caught herself with her arm and felt pain and tearing in her right shoulder.

       Employee texted Ms. Mohundro at 6:50 a.m. on May 20, 2015, stating that she
“was getting out the [sic] and slipped and fell[.] I am going to urgent care[.]”3 Employee
never received a panel of physicians or any authorized treatment from Employer and was
terminated due to “no show/no call.” Ms. Mohundro, along with Kathy Ward,
Employer’s human resources representative, testified that Employee had no reason to go
to her truck on May 20, 2015, because she did not have a load to deliver and was not
scheduled to work. Both witnesses testified that Employee did not tell them on May 20,
2015, that her shoulder injury was work-related.
1
 In a text message dated May 19, 2015, Employee informed Ms. Mohundro that the batteries on the truck
were dead. Ms. Mohundro responded, “[w]hy not have it fixed while you are off so[] you will be ready to
go.”
2
    It appears from the record that a pre-plan is an assignment to pick-up and/or deliver a load.
3
 According to a “Physician’s Report of Work Ability” contained in the record, Employee was diagnosed
with a right shoulder sprain and was restricted from driving. There is no medical proof in the record that
addresses causation.


                                                        2
       The trial court found that Employee was “a reasonable and honest witness” and
that “her account of the May 20, 2015 incident [was] believable.” Accordingly, the trial
court concluded that Employee’s shoulder injury “occurred when she slipped and fell
while leaving the truck while completing a work-related action of checking the
Qualcomm on the truck,” warranting medical benefits in the form of a panel of
physicians. The trial court also concluded that Employee’s injury arose primarily out of
and in the course and scope of her employment, but that she had not presented sufficient
evidence to warrant an award of temporary disability benefits or payment of past medical
expenses. Thus, those requests were denied.4 Employer has appealed the award of
medical benefits.

                                        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) (2015). The trial court’s decision must be upheld unless the rights of a party
“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 an unwarranted exercise of discretion;
        (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)(3) (2015). Like other courts applying the standards
embodied in section 50-6-217(a)(3), we will not disturb the decision of the trial court
absent the limited circumstances identified in the statute.

                                                Analysis

       Employer asserts that the trial court erred in finding Employee was within the
course of her employment when she injured her shoulder on May 20, 2015. Employer
relies on Ms. Mohundro’s and Ms. Ward’s testimony that communicating about loads

4
 Employee has not appealed the trial court’s denial of temporary disability benefits or the payment of past
medical expenses. Thus, we need not address those issues.


                                                    3
through Qualcomm was not required and that Employee had no reason to be at her truck
on May 20, 2015.

       An injury occurs in the course of employment if it takes place while the employee
was performing a duty he or she was employed to perform. Fink v. Caudle, 856 S.W.2d
952, 958 (Tenn. Workers’ Comp. Panel 1993). Thus, the course of employment
requirement focuses on the time, place, and circumstances of the injury. Saylor v.
Lakeway Trucking, Inc., 181 S.W.3d 314, 318 (Tenn. 2005). An injured worker may be
granted medical or temporary disability benefits prior to trial when he or she presents
sufficient evidence to enable the trial court to conclude that the worker would likely
prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2015).

        Here, the trial court concluded that Employee’s injury arose primarily out of and
in the course and scope of her employment. However, there is no medical proof in the
record that Employee’s shoulder condition is causally-related to the work incident on
May 20, 2015, a point the trial court acknowledged in its order. Accordingly, to the
extent the trial court found that Employee’s claim is compensable at this stage of the
case, that finding is premature and, as such, is vacated.

       Nevertheless, we find that the record supports the trial court’s determination that
Employee is entitled to a panel of physicians. Employee testified that on May 20, 2015,
she went to her assigned truck for two reasons: (1) to determine if she had a delivery
waiting to be accepted in Qualcomm in light of Ms. Mohundro’s text message the day
before that she had been scheduled a “good pre-plan,” and (2) to attend to the truck’s
dead batteries. While Ms. Mohundro and Ms. Ward testified that communicating about
loads through Qualcomm was not the exclusive method of doing so, there was no
evidence that Employee’s use of the system to check for loads was unreasonable,
inappropriate, or prohibited. Moreover, Employee’s testimony that she went to the truck
to remedy the situation with the batteries is unrefuted. As noted above, this was done at
the suggestion of her supervisor, Ms. Mohundro.

        In addition, Employee testified that checking for load information using
Qualcomm and attending to the truck’s batteries were work-related responsibilities. She
stated that she was “definitely there to do [her] duty,” and the trial judge believed her.
She also testified that accepting a load could not be done by phone or email, but only
through Qualcomm. To the extent there was a conflict in the testimony on this point, the
trial court resolved it in Employee’s favor, which is the trial court’s prerogative.5




5
  Employer argues that Employee essentially removed herself from the driving roster indefinitely.
However, Employee’s text message sent to Ms. Mohundro on May 19, 2015, requested that her
availability be pushed “out until tomorrow,” which would have been May 20, 2015.

                                               4
        Finally, the record contains nothing that contradicts Employee’s testimony that she
slipped and injured her shoulder in the manner she described, i.e., exiting her truck on
May 20, 2015. The trial court found that Employee was “a reasonable and honest
witness” and that her version of events was credible. The law is clear that “[w]hen the
trial court has heard in-court testimony, considerable deference must be afforded in
reviewing the trial court’s findings of credibility and assessment of the weight to be given
to that testimony.” Tryon v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008).

       In short, we cannot conclude that the evidence preponderates against the trial
court’s decision to order a panel of physicians. Before concluding, however, we note that
Employee has submitted documents on appeal that were not presented to the trial court,
including a causation letter from a physician dated April 8, 2016. “Evaluating a trial
court’s decision on appeal necessarily entails taking into account information the trial
court had before it at the time the issues were decided by the court, as opposed to the
potentially open-ended universe of information parties may seek to present on appeal
following an adverse decision.” Hadzic v. Averitt Express, No. 2014-02-0064, 2015 TN
Wrk. Comp. App. Bd. LEXIS 14, at *13 n.4 (Tenn. Workers’ Comp. App. Bd. May 18,
2015). Accordingly, “we will not consider on appeal testimony, exhibits, or other
materials that were not properly admitted into evidence at the hearing before the trial
judge.” Id.

        We must also address several motions filed by the parties. First, Employer has
filed a motion to file the transcript of the expedited hearing under seal, shielding it from
Employee’s review and use because Employer paid for the transcript and Employee
apparently refused to share in the expense. Employer cites no authority to warrant the
unusual relief sought, and we are aware of none. Employer was certainly within its rights
to appeal the trial court’s decision, but it is Employer’s responsibility to bear the costs of
ensuring an adequate record on appeal.                Accordingly, Employer’s motion is
denied. Second, Employer has filed a motion asking that we disregard Employee’s
position statement because it fails to meet the requirements of an appellate brief. This
motion is denied as well. Last, Employee has filed a motion to dismiss the appeal on the
basis that Employer’s brief, along with the transcript, were untimely filed and contain
inaccuracies. Neither assertion has merit and, therefore, Employee’s motion is likewise
denied.

                                       Conclusion

       The trial court’s decision directing Employer to provide a panel of physicians is
affirmed. To the extent the trial court determined that Employee’s claim is compensable,
that finding is premature and is vacated. The case is remanded for any further
proceedings that may be necessary.



                                              5
                    TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                      WORKERS’ COMPENSATION APPEALS BOARD

Shawn Sirkin                                            )   Docket No. 2015-08-0292
                                                        )
v.                                                      )
                                                        )    State File No. 44984-2015
Trans Carriers, 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 9th day of May, 2016.
 Name                   Certified   First Class   Via   Fax       Via     Email Address
                        Mail        Mail          Fax   Number    Email

 Shawn Sirkin                                                        X    Shawns1960@yahoo.com
 B. Duane Willis                                                     X    dwillis@morganakins.com
 Jim Umsted, WC 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
