                                                                                      FILED
                                                                                 August30,2016
                                                                                     TENNESSEE
                                                                                WORKERS' COMPENSATION
                                                                                   APPEALS BOARD

                                                                                    Time: 9:10 A.M.

            TENNESSEE BUREAU OF WORKERS' COMPENSATION
               WORKERS' COMPENSATION APPEALS BOARD


Norvin Sevilla-Palma                        )   Docket No. 2016-05-0242
                                            )
v.                                          )
                                            )   State File No. 17382-2016
Wauford Air Conditioning, Inc., et al.      )
                                            )
                                            )
Appeal from the Court of Workers'           )
Compensation Claims                         )
Dale Tipps, Judge                           )


                       Affirmed and Remanded-August 30, 2016


In this interlocutory appeal, the employee alleges he suffered an injury to his right eye
arising primarily out of and in the course and scope of his employment. The employer
denied the claim, asserting as an affirmative defense that the employee willfully failed or
refused to use a safety device. In denying the employee's expedited request for benefits,
the trial court relied primarily on its assessment of the credibility of witnesses to
determine that the employer was likely to prevail at a hearing on the merits in
establishing the elements of its affirmative defense. The employee appealed, challenging
the trial court's findings on witness credibility. We affirm and remand the case.

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

Norvin Sevilla-Palma, Lavergne, Tennessee, employee-appellant, prose

David Drobny, Nashville, Tennessee, for the employer-appellee, Wauford Air
Conditioning, Inc.




                                            1
                                       Memorandum Opinion 1

            Norvin Sevilla-Palma ("Employee"), a thirty-four-year-old resident of Rutherford
    County, Tennessee, worked for Wauford Air Conditioning, Inc. ("Employer"), as a sheet
    metal worker. 2 On Friday, February 19, 2016, Employee was working with a crew
    replacing an air conditioning unit at a medical facility. He was instructed to climb a
    ladder and drill a hole overhead to set hangers for the air conditioning unit. Employee
    was not wearing safety goggles or other personal protective equipment at the time. As he
    drilled the hole, the drill struck rebar and a foreign object, believed to be a metal shaving
    from the rebar, entered his right eye.

       Following the accident, Employee attempted to flush out his eye, but he continued
to experience pain and vision problems over the next several days. Employee testified
that he contacted Employer the following Monday to request medical care, but Employer
declined to authorize such care. As a result, he went on his own to a local emergency
room, where he was referred to Vanderbilt Eye Institute. He underwent several
procedures to his right eye to remove the foreign matter and was prescribed glasses.

        After providing a recorded interview to a representative of Employer's insurer, the
insurer denied Employee's claim for workers' compensation benefits. As a result,
Employee filed a petition for benefit determination and, after mediation was
unsuccessful, a request for expedited hearing. Following the expedited hearing, the trial
court issued an order denying Employee's claim for benefits and determining that, at a
hearing on the merits, Employer was likely to establish that Employee willfully failed or
refused to use a safety device in violation of Tennessee Code Annotated section 50-6-
110(a)( 4) (2015). Employee filed a notice of appeal, alleging that representatives of
Employer were untruthful during the expedited hearing, that his own statements during
the expedited hearing were turned against him, and that the trial court's judgment was
unfair.

       Employee has not provided a transcript of the expedited hearing or a statement of
the evidence. Moreover, Employee has not filed a brief or position statement setting
forth any arguments in support of his appeal.

       As an initial matter, we note that Employee has chosen to proceed without an
attorney throughout the proceedings in the trial court and on appeal, which is his

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
  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, and the trial court's expedited hearing order.

                                                    2
prerogative. "It is well-settled, however, that prose litigants must comply with the same
standards to which lawyers must adhere." Bates v. Command Ctr., Inc., No. 2014-06-
0053, 2015 TN Wrk. Comp. App. Bd. LEXIS 10, at *3 (Tenn. Workers' Comp. App. Bd.
Apr. 2, 2015). As one court has observed,

       [p ]arties who decide to represent themselves are entitled to fair and equal
       treatment by the courts. The courts should take into account that many pro
       se litigants have no legal training and little familiarity with the judicial
       system. However, the 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.

Akard v. Akard, No. E2013-00818-COA-R3-CV, 2014 Tenn. App. LEXIS 766, at *11
(Tenn. Ct. App. Nov. 25, 2014); see also Bucher v. Diversco, No. 2015-05-0184, 2015
TN Wrk. Comp. App. Bd. LEXIS 46, at *9 (Tenn. Workers' Comp. App. Bd. Nov. 18,
2015) ("It is not the role of the courts, trial or appellate, to research or construct a
litigant's case or arguments for him or her.").

        Moreover, the Tennessee Workers' Compensation Law expressly provides that
"there 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). As we have explained previously, in
circumstances where no transcript of the expedited hearing is provided, and no statement
of the evidence is filed, "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 must presume
that the trial court's rulings were supported by sufficient evidence." Hardin v. Dewayne's
Quality Metals, No. 2015-07-0067, 2015 TN Wrk. Comp. App. Bd. LEXIS 45, *3-4
(Tenn. Workers' Comp. App. Bd. Nov. 18, 2015). Such is the case here.

       Finally, we note that the trial court's determinations hinged on its assessment of
the credibility of witnesses. 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." Sirkin
v. Trans Carriers, Inc., No. 2015-08-0292, 2016 TN Wrk. Comp. App. Bd. LEXIS 22, at
*8-9 (Tenn. Workers' Comp. App. Bd. May 9, 2016) (quoting Tryon v. Saturn Corp., 254
S.W.3d 321, 327 (Tenn. 2008)).

       In this case, the trial court's expedited hearing order contains findings regarding
the credibility of the witnesses. Specifically, the trial court found parts of Employee's
testimony "not credible" and found the testimony of Employer's witnesses "steady,

                                             3
forthcoming and reasonable." Since we were provided no transcript of the witness
testimony and no statement of the evidence, we have no way to assess whether the
preponderance of the evidence supports the trial court's determinations as to witness
credibility. Under the circumstances, we have no choice but to find the evidence in this
record does not preponderate against the trial court's determinations.

                                      Conclusion

        Based on the foregoing, the trial court's order denying Employee's expedited
request for workers' compensation benefits is affirmed, and the case is remanded for any
further proceedings that may be necessary.



                                                        W. Conner, Judge
                                               Wo · ers' Compensation Appeals Board




                                           4
                        TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                          WORKERS’ COMPENSATION APPEALS BOARD

Norvin Sevilla-Palma                                      )   Docket No.    2016-05-0242
                                                          )
v.                                                        )   State File No. 17382-2016
                                                          )
Wauford Air Conditioning, 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 30th day of August, 2016.
 Name                     Certified   First Class   Via   Fax       Via      Email Address
                          Mail        Mail          Fax   Number    Email

 Norvin Sevilla-Palma                                                 X      norvansevilla@yahoo.com
 David Drobny                                                         X      ddrobny@manierherod.com
 Dale Tipps, 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
