            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD


Patrick Simmons                             )   Docket No. 2016-07-0249
                                            )
v.                                          )
                                            )   State File No. 83151-2015
RHA/Trenton, Inc., et al.                   )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Allen Phillips, Judge                       )


                  Affirmed and Remanded – Filed February 1, 2017

In this interlocutory appeal, the employer alleges the trial court erred in ordering it to
provide the employee a panel of physicians for his alleged low back injury in light of the
employee’s failure to provide timely notice of the work accident. The trial court
determined that, although the employee failed to provide timely notice of the accident,
the employer failed to show any prejudice caused by the late notice and, therefore, the
employee is not barred from seeking benefits. We affirm the trial court’s determination
and remand the case for further proceedings as 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.

Alex C. Elder, Germantown, Tennessee, for the employer-appellant, RHA/Trenton, Inc.

Greg D. Mangrum, Memphis, Tennessee, for the employee-appellee, Patrick Simmons




                                            1
                                       Memorandum Opinion1

       Patrick Simmons (“Employee”) worked for RHA/Trenton, Inc. (“Employer”), as a
“direct services provider.” His job functions included assisting mentally-disabled
residents with activities of daily living, including eating, walking, and personal hygiene.
Employee alleged that on August 5, 2015, while assisting a resident into a chair, he
twisted and experienced pain and other symptoms in his low back and leg. He did not
inform Employer of this incident, but a co-worker testified that when she reported to
work at the end of Employee’s shift, he appeared to be in pain. Later that evening or
early the next morning, Employee’s symptoms worsened and his wife called for an
ambulance.2 At the emergency room, Employee told a nurse that he had twisted his back
at work while assisting a patient.

       Later that morning, Employee’s wife sent a text message to his supervisor
indicating that Employee would be unable to work because an emergency room doctor
“took him off work.” In the text, she described his condition as “sciatic nerve pain.”
There was no indication in the text that Employee’s emergency room visit was due to a
work injury. Although Employee testified he informed his supervisor of the work
accident within several days of his emergency room visit, the supervisor denied any such
conversation. The trial court concluded that both witnesses were credible and that it
could not conclude Employee had provided notice of the work accident until October 7,
2015, well over thirty days after the occurrence. The court also concluded that
Employee’s explanation for his failure to give proper notice as required by Tennessee
Code Annotated section 50-6-201 was insufficient, but that he was entitled to medical
benefits because Employer had failed to show it was prejudiced by Employee’s late
notice.3 It then determined that Employee had come forward with sufficient evidence
indicating he is likely to prevail at trial in establishing a compensable injury and,
therefore, was entitled to the initiation of medical benefits.



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
 Although the record is vague regarding whether Employee’s wife called for an ambulance on August 5
or August 6, 2015, the emergency room report indicates Employee was treated in the early morning hours
of August 6.
3
  In the first paragraph of its expedited hearing order, the trial court summarized its findings and indicated
it found Employee had “provided proper notice.” However, it is clear in the trial court’s “Findings of
Fact and Conclusions of Law” that it instead determined that Employee failed to give timely notice of the
work injury. It awarded medical benefits based not on Employee’s having given proper notice, but on
Employer’s failure to prove it was prejudiced by the late notice.
                                                      2
       On appeal, Employer asserts that Employee “failed to prove proper adequate and
correct notice of injury as required by [Tennessee Code Annotated] 50-6-201.” However,
other than this single sentence in its notice of appeal, and despite having requested and
received additional time to file a brief, Employer filed no brief or position statement on
appeal explaining its theory as to how the trial court erred or setting forth a legal
argument in support of its appeal. As stated by the Tennessee Supreme Court, “[i]t is not
the role of the courts, trial or appellate, to research or construct a litigant’s case or
arguments for him or her.” Sneed v. Bd. of Prof’l Responsibility of the Supreme Court of
Tenn., 301 S.W.3d 603, 615 (Tenn. 2010). Indeed, were we to search the record for
possible errors and raise issues and arguments for Employer, we would essentially be
acting as its counsel, which the law clearly prohibits us from doing. Courts on appeal
will not “dig through the record in an attempt to discover arguments or issues that [a
party] may have made” because doing so “would place [the opposing party] in a distinct
and likely insurmountable and unfair disadvantage.” Webb v. Sherrell, No. E2013-
02724-COA-R3-CV, 2015 Tenn. App. LEXIS 645, at *5 (Tenn. Ct. App. Aug. 12, 2015).
Accordingly, we decline to conduct an “archaeological dig” into the record in an attempt
to discover errors that might benefit either party. McEarl v. City of Brownsville, No.
W2015-00077-COA-R3-CV, 2015 Tenn. App. LEXIS 894, at *7 (Tenn. Ct. App. Nov. 6,
2015). Consequently, we affirm the trial court’s finding that Employer presented no
evidence it was prejudiced by Employee’s late notice.

        The notice requirement is governed by Tennessee Code Annotated section 50-6-
201. In general, the injured worker is required to provide notice “immediately upon the
occurrence of an injury or as soon thereafter as is practicable.” Tenn. Code Ann. § 50-6-
201(a)(1) (2015). Moreover, “[n]o compensation shall be payable . . ., unless the written
notice is given to the employer within thirty (30) days after the occurrence of the
accident, unless reasonable excuse for failure to give the notice is made to the satisfaction
of the tribunal . . . .”4 Id.

       Thereafter, section 201(a)(2) describes the contents of proper written notice. It
requires, “in plain and simple language, the name and address of the employee and the
time, place, nature, and cause of the accident resulting in injury or death.” Tenn. Code
Ann. § 50-6-201(a)(2) (2015). Moreover, the notice must be signed by the employee or
someone authorized to sign on the employee’s behalf. Section 201(a)(3) then states that
“[n]o defect or inaccuracy in the notice shall be a bar to compensation, unless the
employer can show, to the satisfaction of the workers’ compensation judge before which
the matter is pending, that the employer was prejudiced by the failure to give the proper
notice, and then only to the extent of the prejudice.” Tenn. Code Ann. § 50-6-201(a)(3)
(2015).


4
  For injuries occurring on or after July 1, 2016, an injured worker is required to provide notice within
fifteen days of the accident. See Tenn. Code Ann. § 50-6-201(a)(1) (2016).
                                                   3
       In reaching its conclusion in the present case, the trial court relied on our prior
decision in Buckner v. Eaton Corp., No. 2016-01-0303, 2016 TN Wrk. Comp. App. Bd.
LEXIS 84 (Tenn. Workers’ Comp. App. Bd. Nov. 9, 2016), where we stated that a trial
court should examine the issue of prejudice in assessing whether an employee’s late
notice bars his or her claim for benefits. As we explained in Buckner, no compensation is
owed if the injured worker fails to provide the required notice within thirty days of the
accident, unless the employee offers a “reasonable excuse” for the late notice. Id. at *6.
To further clarify the analysis to be undertaken in circumstances where an employer
alleges the employee failed to give proper notice, we note that the Tennessee Supreme
Court’s Special Workers’ Compensation Appeals Panel explained the appropriate
analysis in Dorris v. Am. Limestone Co., No. M2002-00741-WC-R3-CV, 2003 Tenn.
LEXIS 321 (Tenn. Workers’ Comp. Panel Apr. 25, 2003), as follows:

       [N]o benefits are recoverable unless [the] written notice is given within 30
       days after the injurious occurrence, unless the injured worker has a
       reasonable excuse for the failure to give the required notice. . . . Whether or
       not the excuse offered by an injured worker for failure to give timely notice
       is sufficient depends on the particular facts and circumstances of each case.
       The presence or absence of prejudice to the employer is a proper
       consideration . . . . In determining whether an employee has shown a
       reasonable excuse for failure to give such notice, courts will consider the
       following criteria in light of the . . . reasons for the rule: (1) the employer’s
       actual knowledge of the employee’s injury, (2) lack of prejudice to the
       employer by an excusal of the notice requirement, and (3) the excuse or
       inability of the employee to timely notify the employer.

Id. at *4-5; see also McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995) (“The
reasons for the [notice] requirement are (1) to give the employer an opportunity to make
an investigation while the facts are accessible, and (2) to enable the employer to provide
timely and proper treatment for the injured employee.”). Thus, in circumstances where
an employer alleges late notice in accordance with section 201(a)(1), prejudice or lack of
prejudice to the employer is one of the relevant considerations in assessing whether the
employee offered a reasonable excuse for the late notice. Furthermore, in circumstances
where an employer alleges defective or inaccurate notice in accordance with section
201(a)(3), the employer has the burden of proving the extent of any prejudice resulting
from the employee’s defective notice before any relief can be granted.

       In the present case, the trial court determined Employer failed to come forward
with any evidence at the expedited hearing establishing any degree of prejudice caused
by Employee’s late notice. In its notice of appeal, Employer merely reiterates its position
that Employee failed to provide sufficient notice of his injury. Yet, the trial court agreed
with Employer that timely notice was not given and that finding is not at issue. It is the
finding of a lack of prejudice that formed the basis of the trial court’s order and a lack of

                                              4
prejudice is an appropriate factor to consider when determining whether an employee’s
failure to give timely notice should be excused. On appeal, Employer has offered no
factual basis or legal argument to challenge that finding and has provided no other
argument as to why Employee’s failure to give timely notice should be a bar to his claim
for benefits. Accordingly, the trial court’s order is affirmed and the case is remanded for
further proceedings as may be necessary.




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

Patrick Simmons                                            )   Docket No.   2016-07-0249
                                                           )
v.                                                         )   State File No. 83151-2015
                                                           )
RHA/Trenton, 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 1st day of February, 2017.
 Name                      Certified   First Class   Via   Fax      Via     Email Address
                           Mail        Mail          Fax   Number   Email

 Gregory D. Mangrum                                                   X     mangrumlaw@comcast.net
 Alex C. Elder                                                        X     alex@holleyelder.com
 Allen Phillips, 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
