             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD


Susan English                                      )   Docket No. 2016-05-0261
                                                   )
v.                                                 )
                                                   )   State File No. 98712-2015
G4S Secure Solutions, et al.                       )
                                                   )
                                                   )
Appeal from the Court of Workers’                  )
Compensation Claims                                )
Robert Durham, Judge                               )


                     Affirmed and Remanded – Filed February 2, 2017

In this interlocutory appeal, the employee disputes the trial court’s finding that she did
not come forward with sufficient evidence at a second expedited hearing to show she is
likely to prevail at a hearing on the merits in proving a compensable injury. We affirm
the trial court’s determination and remand the case for any further proceedings that may
be necessary.

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.

Stephanie Simmons, Nashville, Tennessee, for the employee-appellant, Susan English

Sarah H. Best, Knoxville, Tennessee, for the employer-appellee, G4S Secure Solutions

                                     Memorandum Opinion1

       On December 2, 2015, Susan English (“Employee”) fell while exiting the building
where she worked for G4S Secure Solutions (“Employer”). During an earlier expedited
hearing, Employee testified that she did not remember the fall, but noted there were wet
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.
                                                   1
leaves littering the sidewalk and her travel route, and she presumed she slipped and fell
on the wet leaves. Following the first expedited hearing, the trial court determined her
fall was idiopathic and that she had not presented sufficient evidence to show she will
likely prevail at a hearing on the merits. Employee appealed that order and we affirmed.

       During the second expedited hearing, Employee, acting in a self-represented
capacity, presented additional evidence, including her testimony, an affidavit of a
witness, and the testimony of her supervisor. Employee argued that her supervisor failed
to adequately respond to her fall, did not offer her appropriate assistance, did not
complete an accident report, and did not offer her medical treatment. During his direct
examination, her supervisor testified that he did not witness the fall, but saw her on the
ground. He asked her if she was okay and she failed to respond. When he approached
her and again asked if she was okay, she turned without responding, went to her car, and
drove away. Consequently, he did not complete an accident report because he assumed
by her actions she was not injured.

        Following the second expedited hearing, the trial court determined she had again
failed to present sufficient evidence to show she was likely to prevail at trial and denied
benefits. After Employee’s notice of appeal was filed, an attorney filed a brief on her
behalf, asserting the preponderance of the evidence presented at both expedited hearings
indicates she is likely to prevail at trial in proving a compensable fall, and the trial court
erred in denying benefits.2

         In reviewing a trial court’s interlocutory order, we presume “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). In the present
case, Employee’s testimony regarding her memory of the fall differed significantly at the
second expedited hearing as compared to the first expedited hearing. For example, in the
first hearing, Employee testified, “I do not literally remember falling.” Yet, in the second
hearing, she testified, “As I was walking, I felt my right leg[,] as in the motion of
walking[,] of lifting and to pushing my right leg[,] from the wet leaves slipping.” During
cross-examination at the first hearing, Employee stated, “it had to have been the leaves.”
At the second hearing, Employee stated, “I felt the leg, as I was walking, slip out. . . .
[I]t’s taken time to regain some knowledge of it.”


2
  We note that the notice of appeal is unsigned and the certificate of service on the notice is incomplete.
Moreover, Section 2.2 of our Practices and Procedures provides that “[a]ny brief, motion, or other writing
submitted on behalf of a party to the Appeals Board must be signed by an attorney who has an entered an
appearance in the case for such party or by a self-represented individual in accordance with paragraph
2.1.” Appeal Bd. Prac. & Proc. § 2.2 (emphasis added). While it is unclear whether Employer received
the notice of appeal, it did receive the docketing notice regarding the pendency of the appeal. Since
Employer raised no objection to the notice of appeal or the brief, we will consider the brief as Employee’s
argument in support of her appeal.
                                                    2
       In considering the totality of the evidence presented to date, the trial court noted
the inconsistencies in her testimony and concluded her “attempt to retract or modify this
testimony at the second hearing [was] unpersuasive.” The trial court further concluded
Employee “has still only offered speculation and conjecture as to the cause of her . . .
fall.” A trial court’s findings regarding witness credibility are entitled to deference on
appeal. See Tryon v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008). Upon careful
review of the record, we cannot conclude that the evidence presented to date
preponderates against the trial court’s determination. We therefore affirm the trial court’s
order and remand the case for any further proceedings that may be necessary.




                                             3
                    TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                      WORKERS’ COMPENSATION APPEALS BOARD

Susan English                                           )   Docket No.   2016-05-0261
                                                        )
v.                                                      )   State File No. 98712-2015
                                                        )
G4S Secure Solutions, 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 2nd day of February, 2017.
 Name                   Certified   First Class   Via   Fax      Via     Email Address
                        Mail        Mail          Fax   Number   Email

 Stephanie Simmons                                                 X     stephanie@attorneysimmons.com
 Sarah H. Best                                                     X     shbest@mijs.com
 Robert Durham, 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
Deputy 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
