            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD
                (HEARD OCTOBER 11, 2017, AT KNOXVILLE)


DeWayne Burnette, Sr.                       ) Docket No. 2016-01-0670
                                            )
v.                                          ) State File No. 87860-2016
                                            )
WestRock, et al.                            )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Thomas L. Wyatt, Judge                      )


                   Affirmed and Remanded – Filed October 31, 2017

In this interlocutory appeal, the employee alleges suffering severe injuries due to heat
exposure while working at the employer’s plant. The employer denied that the employee
gave proper notice of a work injury and further denied that his injuries arose primarily
out of and in the course and scope of his employment. Following an expedited hearing,
the trial court ordered the employer to provide both temporary disability and medical
benefits, and it further ordered the employer to designate two physicians from whom the
employee had received treatment as authorized treating physicians. The employer has
appealed, asserting the trial court erred in designating the employee’s physicians as
authorized treating physicians and in failing to enforce the terms of an alleged agreement
reached during the mediation phase of the case. The employee has asked that the
employer’s appeal be deemed frivolous. We affirm the decision of the trial court, find
the appeal frivolous, and remand the case to the trial court for further proceedings,
including an assessment of reasonable attorney’s fees and costs arising from this appeal.

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

Sean W. Martin, Chattanooga, Tennessee, for the employer-appellant, WestRock

Carmen Y. Ware, Chattanooga, Tennessee, for the employee-appellee, DeWayne
Burnette, Sr.


                                            1
                             Factual and Procedural Background

        DeWayne Burnette, Sr. (“Employee”), a sixty-year-old resident of Hamilton
County, Tennessee, worked for WestRock (“Employer”) at its paper and packaging
manufacturing facility in Chattanooga. While at work on July 8, 2016, Employee began
experiencing significant symptoms associated with overheating. 1 A co-worker reported
to Employee’s supervisor, Corey Reese, that Employee “didn’t look good.” At least
twice during the shift, Mr. Reese removed Employee from his work station and took him
to air-conditioned offices, where he encouraged Employee to drink water and try to “cool
off.” Each time Employee returned to his work station, he again exhibited symptoms of
overheating. After receiving another report of Employee’s worsening condition, Mr.
Reese took Employee to an office and, after consulting with his superior, asked
Employee to rest, drink water, and attempt to urinate.

       During a break at approximately 7:00 p.m., Employee retrieved his cell phone
from his locker and called his son, reporting that he was sweating, felt lightheaded, and
needed assistance. When his son arrived at the facility and saw his father “shaking and
sweating,” he asked Mr. Reese whether he could take his father to a hospital. Mr. Reese
responded that both he and Employee risked losing their jobs if Employee left the facility
before his shift ended at 11:00 p.m. He also informed Employee’s son that he could not
wait inside the facility with his father but would have to wait in the parking lot for
approximately two hours until the shift was over.

        When Employee’s shift ended at 11:00 p.m., Employee’s son returned to the
facility to retrieve his father and transport him to a hospital. At that time, Mr. Reese
informed him that Employee needed to stay another thirty minutes and attempt to urinate
before leaving. Following a vigorous discussion, Mr. Reese relented and allowed
Employee to leave. The son testified that he and several co-workers assisted Employee
out of the facility and into the son’s car, as Employee had become so weak he was unable
to walk without help. 2 Employee was transported to Memorial Hospital, where he was
diagnosed with acute renal failure, hyperkalemia, dehydration, and rhabdomyolysis. 3 He
was hospitalized in intensive care for several days and received dialysis and other
treatments. During and after his hospitalization, Employee was treated by Drs. Joseph
Watlington and Philip Bannor, among other medical providers.
1
 During the expedited hearing, all witnesses agreed that, during summer months, the facility can become
extremely hot.
2
  A co-worker, Eric Phinazee, testified that Mr. Reese instructed him to “cover the camera” located near
the time clock as Employee was carried out of the facility. Mr. Phinazee testified that he refused this
instruction.
3
  Rhabdomyolysis is the breakdown of muscle tissue commonly associated with trauma, elevated body
temperature, and dehydration.         “Rhabdomyolysis,” https://www.webmd.com/a-to-z-guides/
rhabdomyolysis-symptoms-causes-treatments#1 (last visited Oct. 30, 2017).
                                                   2
        On March 20, 2017, Employee filed an amended petition for benefit
determination. 4 Thereafter, Employer responded that it denied Employee’s claim due to
lack of proper notice and lack of evidence of a work-related injury. Following an
expedited hearing, the trial court concluded Employee had presented sufficient evidence
to show he was likely to prevail at trial in proving compensable work injuries, and it
ordered Employer to initiate both temporary disability and medical benefits. In addition,
the trial court ordered Employer to authorize Drs. Watlington and Bannor to provide
reasonable and necessary medical treatment for Employee’s work-related injuries.

       Employer has appealed, arguing the trial court erred in not enforcing the terms of
an agreement allegedly reached during mediation and in designating Drs. Watlington and
Bannor as authorized treating physicians. In response, Employee has asked that
Employer’s appeal be deemed frivolous and that he be awarded reasonable attorney’s
fees and costs incurred as a result of defending this appeal.

                                        Standard of Review

       The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2016) (“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.”). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court. See Madden v.
Holland Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, we review
questions of law de novo with no presumption of correctness. See Am. Mining Ins. Co. v.
Campbell, No. M2015-01478-SC-R3-WC, 2016 Tenn. LEXIS 907, at *18 (Tenn.
Workers’ Comp. Panel Dec. 9, 2016) (“A trial court’s conclusions of law are reviewed de
novo upon the record with no presumption of correctness.”). Moreover, the interpretation
and application of statutes and regulations concerns issues of law, which we review de
novo with no presumption of correctness afforded to the trial court’s findings. See Seiber
v. Reeves Logging, 284 S.W.3d 294, 298 (Tenn. 2009); Hadzic v. Averitt Express, No.
2014-02-0064, 2015 TN Wrk. Comp. App Bd. LEXIS 14, at *9 (Tenn. Workers’ Comp.
App. Bd. May 18, 2015).

                                               Analysis

       Employer presents a single issue on appeal: whether the trial court erred in
ordering it to authorize Drs. Watlington and Bannor as authorized treating physicians in


4
 The technical record contains a copy of a petition for benefit determination dated October 27, 2016, but
not filed until April 26, 2017. There is no information in the record explaining this discrepancy.
                                                    3
contravention of a mediated agreement reached during the pre-litigation mediation phase
of the case, at which time Employer purportedly offered Employee a panel of physicians.

                                  Mediated Agreement

       Employer argues on appeal that, during the pre-litigation mediation phase of this
case, the parties agreed Employer would provide Employee a panel of physicians, and
that Employee should be bound by that agreement. According to Employer, the trial
court’s decision should be reversed because the court did not enforce the alleged
agreement between the parties. However, the alleged agreement, while briefly alluded to
by the attorneys and the trial court during closing arguments at the expedited hearing,
was never offered into evidence and was not made an exhibit at the hearing.
Consequently, it is not part of the record on appeal.

       It is well-settled that a party cannot offer for an appellate court’s consideration
documents or other materials that were not admitted into evidence at trial. See, e.g.,
Hadzic v. Averitt Express, No. 2014-02-0064, 2015 TN Wrk. Comp. App. Bd. LEXIS 14,
at *14, n.4 (Tenn. Workers’ Comp. App. Bd. May 18, 2015) (“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”). Notwithstanding this settled principle,
Employer urges us to consider and enforce the purported terms of the agreement even
though the document itself is unavailable for our review and even though no proof was
presented during the hearing regarding its terms.

       The following colloquy occurred during closing arguments at the expedited
hearing:

      Mr. Martin [Attorney for Employer]: [A]n agreement was reached to
      provide a panel, a panel was provided, the claimant refused to sign and pick
      one of the doctors off the panel and continued to treat with Drs. Watlington
      and Bannor. And that’s where we ended up in here today. . . . And the
      agreement was reached amongst the parties – it was not the two attorneys
      that are here. . . . But the agreement was still binding on the parties . . . .

      Trial Court: Do you have a date that the mediated agreement was entered
      into?

      Mr. Martin: December 14 of 2016.

      Trial Court: Do you have any disagreement with that date, Ms. Ware?

      ....


                                            4
       Ms. Ware [Attorney for Employee]: That is the date that I have on the one
       that I have.

       ....

       Trial Court: And we did – by the way – we did check the court file. That
       was not – I didn’t expect it to be, because the mediation folks don’t file
       things like that with the court file. But I will take both counsels’ agreement
       as to the date. And I take it, Ms. Ware, you’re not indicating a
       disagreement that the – there was an agreement?

       Ms. Ware: All I know is that there was a notice of mediated agreement
       provided. Whether it was ever filed, I don’t know. I do know that Mr.
       Burnette was not in agreement with that mediated agreement. So from Mr.
       Burnette’s standpoint, he never reached an agreement on the panel issue.

        Employer urges us to consider and enforce the purported terms of the alleged
agreement despite the fact that the document is unavailable for our review, and even
though Employee has made clear, both in the trial court and on appeal, that he did not
agree to the terms contained in the document. In short, no such agreement was presented
to the trial court, and no evidence was provided to establish that the parties had any such
agreement.

        Employer’s argument is untenable for several reasons. First, it is undisputed that
the alleged agreement was not offered into evidence at the expedited hearing and is not
part of the record on appeal. Thus, we have no way to review or confirm the terms of any
alleged agreement. Second, no testimony was presented from any witness as to the terms
of the alleged agreement or whether any such agreement even existed. Statements of
counsel made during closing arguments, of course, are not evidence. See, e.g., Jones v.
Modine Mfg. Co., No. 03S01-9703-CV-00028, 1998 Tenn. LEXIS 79, at *5 (Tenn.
Workers’ Comp. Panel Feb. 18, 1998) (“statements of counsel in the argument stage of a
trial do not constitute evidence”). Third, no stipulation was entered into regarding the
terms of any mediated agreement or whether such an agreement existed. While counsel
for Employee agreed she was in possession of a document with a certain date on it, she
stated in no uncertain terms that Employee never agreed to what was reflected in that
document. 5

       Thus, we are unable to discern the terms of the alleged agreement, and the parties
dispute whether the document referenced during the conversation quoted above reflects
any terms agreed to by the parties. As a result, Employer has no reasonable basis to

5
 We also note that neither attorney on appeal was involved in the case when the purported agreement was
allegedly reached.
                                                  5
assert on appeal that the terms of such an agreement should be enforced, much less that
the trial court’s decision should be reversed based on such an agreement. 6

                           Designation of Authorized Treating Physicians

       It is a long-settled principle of Tennessee’s workers’ compensation law that an
employer who does not timely provide a panel of physicians risks being required to pay
for treatment an injured worker receives on his or her own. “[A]n employer who
attempts to claim the benefits of [Tennessee Code Annotated section] 50-6-204 must also
comply with the statute.” Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 150
(Tenn. 1991). The Tennessee Supreme Court has addressed the issue as follows:

          Where the employer fails to give the employee the opportunity to choose
          the ultimate treating physician from a panel of at least three physicians, the
          employer runs the risk of having to pay the reasonable cost for treatment of
          the employee’s injuries by a physician of the employee’s choice. Since [the
          employer] failed to designate three approved physicians, the [employee]
          was justified in seeking medical treatment elsewhere. [The employer]
          knew about [the employee’s] injury and knew that he was seeking medical
          care.

Lindsey v. Strohs Cos., 830 S.W.2d 899, 902-03 (Tenn. 1992) (citations omitted).
Furthermore, a belated attempt to insist that an injured worker treat with a panel
physician after the worker has established a doctor-patient relationship with another
physician will not succeed, at least when the employer has pointed to no rationale to
require the change in physicians other than an assertion of its statutory right. See, e.g.,
Goodman v. Oliver Springs Mining Co., 595 S.W.2d 805, 808-09 (Tenn. 1980).

       In the present case, Employer had actual knowledge of Employee’s heat-related
injury as it occurred. Testimony from multiple witnesses confirmed that Employee
expressed a need for medical care prior to leaving work and that his condition had
steadily worsened, even to the point that he had to be helped to a car because he could not
walk on his own. Employer was aware Employee was hospitalized for several days
immediately following the incident. Yet, it is undisputed that it did not offer Employee a
panel of physicians within a reasonable time following his discharge from the hospital. 7

       Employer argues that it was unaware Employee needed additional medical
treatment after he was discharged from the hospital. It also asserts that at least one of

6
  Because the agreement at issue was never admitted into evidence or considered by the trial court, we
offer no opinion as to whether a “mediated agreement,” signed by a Bureau mediator but not signed by
either party, is admissible or enforceable.
7
    Employer’s offer to provide a panel occurred over five months after the July 8, 2016 incident.
                                                       6
Employee’s medical conditions was described by a treating physician as “multifactorial,”
thus raising reasonable questions of medical causation, at least as to that condition.
While we agree that reasonable questions may have been raised regarding the cause of at
least one of Employee’s medical conditions, we note Employer never asserted that the
heat-related incident did not occur or that Employee did not express a need for medical
care on the night of the incident. In circumstances where an employer has actual
knowledge of a specific incident or set of incidents at work, as in this case, and in the
absence of information supporting a compensability defense as to the occurrence of the
accident, see Tenn. Comp. R. & Regs. 0800-02-14-.04(7) (1999), “the employer shall
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 (1) to be the treating physician.” Tenn. Code Ann. § 50-6-204(a)(3)(A)(i)
(2016) (emphasis added). Failure to do so imposes on an employer the risk that it will be
held liable for medical treatment obtained from providers of the employee’s choice.

       In this case, Employer’s supervisor had actual knowledge of the incident as it was
occurring. He knew Employee was working in an area of the facility that was extremely
hot, knew Employee was exhibiting significant symptoms associated with heat exposure,
knew Employee expressed a need for medical care, and knew Employee was
hospitalized. Under these circumstances, Employer’s statutory obligation to provide a
panel of physicians was not dependent upon the nature or duration of Employee’s
hospitalization, his diagnoses, his hospital discharge instructions, or his alleged failure to
request additional medical treatment within a reasonable time after being discharged.

        Therefore, given Employer’s failure to offer Employee a panel of physicians
within a reasonable time after it was aware of the work incident, it was not error for the
trial court to designate the physicians from whom Employee had received treatment as
the treating physicians. 8 Of course, this does not limit Employer’s ability to raise
questions concerning medical causation, the reasonableness or necessity of treatment, or
any other defenses as may be appropriate. However, at this interlocutory stage of the
case, we agree with the trial court’s determination.

                                           Frivolous Appeal

       Employee asks that we find Employer’s appeal to be frivolous and that sanctions
be awarded in the form of attorney’s fees and costs. As we have noted previously, a
frivolous appeal is one that is devoid of merit or brought solely for delay. Yarbrough v.
Protective Servs. Co., Inc., No. 2015-08-0574, 2016 TN Wrk. Comp. App. Bd. LEXIS 3,
at *11 (Tenn. Workers’ Comp. App. Bd. Jan. 25, 2016) (citing Combustion Eng’g, Inc. v.
Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978)). Stated another way, “[a] frivolous appeal

8
  The trial court referred the case to the Bureau’s penalty unit, presumably based on Employer’s failure to
timely provide a panel of physicians.
                                                     7
is one that . . . had no reasonable chance of succeeding.” Adkins v. Studsvik, Inc., No.
E2014-00444-SC-R3-WC, 2015 Tenn. LEXIS 588, at *30 (Tenn. Workers’ Comp. Panel
July 21, 2015) (citations omitted).

       In Ferrell v. APAC-Tennessee, Inc., No. M1999-02260-WC-R3-CV, 2000 Tenn.
LEXIS 722 (Tenn. Workers’ Comp. Panel Dec. 1, 2000), the employee offered expert
medical proof at trial via a Standard Form Medical Report (Form C-32) and the employer
offered no expert proof of its own. Id. at *3. The employer did not object to the Form C-
32 or seek to schedule a deposition of the employee’s expert for purposes of cross-
examination. Id. at *7. Following trial, the employer appealed, arguing that the evidence
did not support the trial court’s award. Id. The Tennessee Supreme Court’s Special
Workers’ Compensation Panel affirmed the trial court’s award and concluded that
Employer’s appeal was frivolous. Id. at *8. In so holding, the Panel explained as
follows:

       Appellate courts should not stifle the right to appeal by imposing penalties
       if a case raises legitimate factual or legal issue[s]. Conversely, the
       appellate courts should not be timid about imposing penalties for frivolous
       appeals when there is raised no legitimate factual or legal issue. . . . Where
       there is no reasonable basis for appeal, penalties should be vigorously
       applied by the appellate court if the legislative intent is to be given life.

Id. at *9-10.

       Moreover, parties should not be required to endure the hassle and expense of
baseless litigation. Clark v. Nashville Mach. Elevator Co., 129 S.W.3d 42, 50 n.4 (Tenn.
2004). Nor should appellate courts be required to waste time and resources on appeals
that have no realistic chance of success. Davis v. Gulf Ins. Grp., 546 S.W.2d 583, 586
(Tenn. 1977); see also Tenn. Comp. R. & Regs. 0800-02-22-.04(6) (2015) (“When it
appears to the appeals board that an appeal was frivolous or taken solely for delay, the
appeals board may, either upon motion of a party or of its own motion, award expenses,
including reasonable attorney's fees, incurred by the appellee as a result of the appeal.”).

       In the present case, Employer hinges its appeal on a purported written agreement
that was not offered into evidence and not available for review on appeal. Employee’s
counsel stated during closing arguments at the hearing that Employee did not agree to the
terms of the alleged mediated agreement. No exhibits, testimony, or other evidence was
offered at the hearing regarding the terms of the alleged agreement, a point the parties
readily acknowledged at oral argument.

       Moreover, Employer’s argument that it should be excused from offering a panel of
physicians until five months after the work incident is patently without merit.
Employer’s representatives were aware of the heat-related incident as it was occurring,

                                             8
were aware that Employee requested medical treatment, and were aware that Employee
was hospitalized. It had a duty to offer a panel of physicians, but failed to do so until five
months later, after Employee initiated his claim for benefits.

        In short, given that no evidence was offered at trial regarding the terms of an
alleged agreement Employer now asks us to enforce, given that the document itself is
unavailable for review, and given that Employer has offered no plausible basis to reverse
the trial court’s decision, Employer’s appeal had no reasonable chance of success. We
therefore conclude this appeal is frivolous. We remand this case to the trial court for a
determination of reasonable attorney’s fees and costs to be awarded Employee arising
from the frivolous appeal.

                                        Conclusion

       For the foregoing reasons, we affirm all aspects of the trial court’s interlocutory
order. In addition, we deem this appeal frivolous and remand the case to the trial court
for a determination of reasonable attorney’s fees and costs to be awarded to Employee
arising from this appeal, and for any other proceedings that may be necessary.




                                              9
                        TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                          WORKERS’ COMPENSATION APPEALS BOARD


DeWayne Burnette, Sr.                                             )   Docket No.           2016-01-0670
                                                                  )
v.                                                                )   State File No. 87860-2016
                                                                  )
WestRock, 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 31st day of October, 2017.
     Name                        Certified    First Class   Via Fax   Fax      Via Email   Email Address
                                 Mail         Mail                    Number

     Carmen Y. Ware                                                               X        cyware@thewarelawfirm.com
     Sean W. Martin                                                               X        swmartin@carrallison.com
     Ronald W. McNutt                                                             X        ronald.mcnutt@tn.gov
     Thomas L. Wyatt, Judge                                                       X        Via Electronic Mail
     Kenneth M. Switzer, Chief                                                    X        Via Electronic Mail
     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: WCAppeals.Clerk@tn.gov
